Entered according to Act of Congress, in the year 1881, by

G. I. JONES AND COMPANY,

In the office of the Librarian of Congress, at Washington.

LIMY OF THE

LELAND STARS, JR., UNHYRSITY

LAW BEPARTMENT.

SOUTHERN LAW REVIEW

VOL. VI., N. S.] ST. LOUIS, April, 1880.

[NUMBER I.

RECENT ENGLISH CODIFICATION.

In August, 1878, a royal commission, the object of which was to report upon a criminal code then before Parliament, was issued to Lord Blackburn of the Court of Appeal, Judge Barry of the Irish High Court of Justice, Sir Robert Lush of the English High Court of Justice, and Sir J. Fitzjames Stephen. Sir J. Stephen's capacity both as a philosophic jurist and as a codifier is universally recognized. Lord Blackburn is known to possess to an eminent degree a mastery of the principles of law, and a capacity for the lucid expression of its most refined distinctions. Judge Barry's selection was due to his eminence in his own court. Sir R. Lush, while inferior in genius to Chief Justice Cockburn, with whom he has so long sat on the same bench, is superior to that brilliant but erratic judge in solid judgment and in philosophic consistency. From such a commission, with materials so valuable before it, we have a right to expect a work of high merit; and the work produced is, at all events, calculated to exercise a permanent influence on the moulding of the law, not only in England but in the United States.

The first point to which the commissioners address themselves in their preliminary report is naturally that of the practicability of an exhaustive codification; and as in this

mons.

This report was presented last fall, and is still before the House of Com

respect I feel compelled to differ from them, I give their reasoning at length:

"It may be objected that sect. 5 of the Draft Code constitutes an exception to this general remark. It provides that for the future all offences shall be prosecuted either under the Code or under some other statute, and not at common law. The result of this provision would be to put an end to a power attributed to the judges, in virtue of which they have (it has been said) declared acts to be offences at common law although no such declaration was ever made before. And it is indeed the withdrawal of this supposed power of the judge to which the argument of want of elasticity is mainly addressed. It is worth while to give instances of the manner in which at different times this doctrine has been

put forward and acted upon. Of the weakness of the administration of justice in the Middle Ages, the impediments opposed to it by what was then called maintenance, the establishment of the Court of Star-Chamber professedly to remedy its defects, and the abuses which led to the abolition of that court in Charles I.'s reign, it is unnecessary to speak. It would seem, however, that in early times the courts were so little disposed to exercise the supposed power of declaring new offences that perjury by a witness was never treated as an offence (except under certain statutes of Henry VIII. and Elizabeth) till it was declared to be one by the Court of Star-Chamber.

I

"After the Restoration, the Court of King's Bench took upon itself some of the functions of the Star-Chamber. In the wellknown case of Sir Charles Sedley, for instance, who conducted himself in public with gross indecency, the justices told him 'that notwithstanding there was not then any Star-Chamber, yet they would have' him know that the Court of King's Bench was the custos morum of all the king's 'subjects.' In the case of Edmund Curll, who was prosecuted for publishing obscene libels in 1727, the court seems to have proceeded upon a similar principle; and the same course appears also to have been taken in several instances upon the prosecution of blasphemous libels. The principle was stated in very wide terms in discussions upon the law of copyright, first by Mr. Justice Willes (Lord Mansfield's colleague), and afterwards by Lord Chief Baron Pollock. Mr. Justice Willes spoke

of 'justice, moral fitness, and public convenience,' which was then applied to a new subject, make common law 'without a precedent.' ' Lord Chief Baron Pollock, many years afterward, referring to this passage, observed: I entirely agree with the spirit of this passage, so far as it regards the repressing what is a public evil, and preventing what would become a public mischief.' In the observations made by the judges on a scheme of codification prepared in 1854, the same view was stated. The following are the words of Mr. Justice Crompton: I think it unadvisable to lose the advan. tage of the power of applying the principles of the common law to new offences and combinations arising from time to time, which it is hardly possible that any codification, however able and complete, should effectually anticipate.' In Sir William Erle's treatise on the law relating to trades unions there are several passages bearing on this subject.3 Though the existence of this power as inherent in the judges has been asserted by several high authorities for a great length of time, we do not think that any attempt would be made to exercise it at the present day; and any such attempt would be received with great opposition, and would place the bench in an invidious position.

"In by-gone ages, when legislation was scanty and rare, the powers referred to may have been useful and even necessary; but that is not the case of the present day. Parliament is regular in its sittings and active in its labors; and if the protection of society requires the enactment of additional penal laws, Parliament will soon supply them. If Parliament is not disposed to provide punishments for acts which are upon any ground objectionable or dangerous, the presumption is that they belong to that class of misconduct against which the moral feeling and good sense of the community are the best protection. Besides, there is every reason to believe that the criminal law is and for a considerable time has been sufficiently developed to provide all the protection for the public peace and for the property and persons of individuals which they are likely to require under almost any circumstances which can be imagined; and this is an additional reason why its further development ought in our opinion to be left in the hands of Parliament. If it should turn out that we have overlooked some common-law offence, we think it better to incur the risk of giving a temporary

Millar v. Taylor, 4 Burr. 2312.

2 Jefferys v. Boosey, 4 H. L. Cas. 936.

3 See pp. 31-36, 47-53.

immunity to the offender than to leave any one liable to a prosecution for an act or omission which is not declared to be an offence by the Draft Code itself, or some other act of Parliament.

"But whilst we exclude from the category of indictable offences any culpable act or omission not provided for by this or some other act of Parliament, there is another branch of the unwritten law which introduces different considerations, namely, the principles which declare what circumstances amount to a justification or excuse for doing that which would be otherwise a crime, or at least would alter the quality of the crime. In the cases of ordinary occurrence, the decisions of the courts and the opinions of great lawyers enable us to say how the principles of law are to be applied. And so far the unwritten law may be digested without extreme difficulty and with practical advantage, and so far also it may be settled and rendered certain.

"In our opinion, the principles of the common law on such subjects, when rightly understood, are founded on sense and justice. There are few points on which we venture to suggest alterations, which we shall afterwards state in detail. At present we desire to state that in our opinion it is, if not absolutely impossible, at least not practicable to foresee all the combinations of circumstances which may happen, but which are of so infrequent occurrence that they have not hitherto been the subject of judicial consideration, although they might constitute a justification or excuse, and to use language at once so precise and clear and comprehensive as to include all cases that ought to be included, and not to include any case that ought to.be excluded."

I Report, pp. 9, 10. The Draft Code provides that no act or omission not specified in it shall be indictable until made so by act of Parliament. At the same time it leaves definition, excuse, and justification to be determined by the courts. This was objected to by Chief Justice Cockburn, in a late pamphlet, as an inconsistency. To this we have the following reply by Sir J. Stephen in the Nineteenth Century for January, 1879: "It appears to me that the two proposed enactments stand on entirely different principles. After the experience of centuries, and with a Parliament sitting every year and keenly alive to all matters likely to endanger the public interests, we are surely in a position to say the power of declaring new offences shall henceforth be vested in Parliament only. The power which has at times been claimed for the judges of declaring new offences cannot be useful now, whatever may have been its value in earlier times. On the other hand, it is hardly possible to foresee all the circumstances which might possibly justify or excuse acts which might otherwise be crimes. A long series of authorities have settled certain rules which can be put into a distinct and convenient form, and it is of course desirable to take