projects are condemned in the outset, and people are averse to reconsider, on the same grounds, a subject upon which they have already formed an opinion. But when the propriety of that opinion, upon the grounds on which it proceeded, is acknowledged, and a rehearing of the case demanded, from the fallacy of the former arguments in its favour having kept the real basis on which it rests out of view, the request can hardly be refused. The intention of the following observations, is to convey a general idea of the proposition submitted, and of the reasons upon which it proceeds; and thereby induce clear perceptions of a subject, upon which so much misconception has prevailed from the want of them. To descend to particulars, would involve such copiousness of detail, and variety of illustration, as altogether to exceed the limits of a pamphlet. These, however, are absolutely essential to decide upon its merits, and will be furnished, should the opportunity be afforded, by the introduction, and subsequent discussion, of the measure proposed. the unwritten law. The laws of THE laws of England are divisible into the Written England are Law or Acts of Parliament, and the Unwritten or Common the written and Law. Which phrase "Common Law" has two different senses; one proper, the other figurative. In its proper signification, it designates laws not included in the book styled "The Statutes of the Realm;" in its figurative sense, we intend those principles of reason which should govern in the absence of positive authority. What those unwritten laws are depends partly upon evidence, partly upon the opinion of the judicial authorities; and what those principles are, altogether depends upon the opinion of the Judges. these laws may consolidation, A reform of these laws, written and unwritten, and, A reform of therefore, of our Criminal Law, may consist, 1. In a Con- consist in a solidation of the Statutes; 2. In an Amendment of both an amendment, Statute and Common Law; 3. In a Reduction of the to writing. Common Law to Writing. and a reduction tion of the law and its advantages 1. Statutes are Consolidated, when, by uniting two or A consolidamore together, we make one serve the purpose of many. defined, And the advantages of a Consolidation are, first, that it ascertained. brings under one point of view that which now lies scattered over the face of many volumes. Secondly, it ascertains the reciprocal influence which a variety of statutes, each applicable to the same subject, have upon each other; a knowledge which, under the present state of things, it is matter of the greatest difficulty, nay, often of impossibility, for the most comprehensive mind to attain. Thirdly, it detects and reconciles those contradictions and inconsistencies so constantly observable, where a number of statutes have been applied from time to time to the same subject. Fourthly, by reducing the law to a greater certainty, it diminishes litigation; and by exhibiting a clear and connected view of that law, it enables us to observe, and, observing, to supply, those particulars in which it is defective. 2. Laws are Amended, when the deficiencies discover- Anamendment able by observation or experience are supplied. By fined, and its advantages as attending to the principle upon which a law proceeds, and certained. observing the deviations from that principle which, in point of fact, have taken place, we are enabled to correct those deviations. And by experiencing, in the practical A reduction of the law to writ and its advan tages tained. ascer workings of the system, the actual effects of a law, we are enabled to detect, and correct or palliate inconveniences which are not discoverable by mere observation alone. 3. Laws are Reduced to Writing, when those which ing defined, depend upon evidence, or rest in the discretion of the Magistrate, are ascertained and declared by legislative authority. By a reduction, therefore, of our laws to writing, we intend a conversion of Common to Statute Law; upon principles, however, that will hereinafter be propounded, and which, shortly, may be stated to be, the substitution of general rules for particular decrees; principles which, to the extent that may be practicable, will be followed in the reform of the Statute or Written Law. And the advantages of such a reduction will best appear, from attending to the consequences which, more or less, result from the want of it. 1. Where there is no such written or positive law, the decision of causes is left, in a great measure, to equity and the sense of mankind,—in other words, to the discretion of the Judge; and it is the first principle of a free government to leave nothing, which we are not obliged to leave, to the discretion of the Magistrates.* 2. Each case is decided, by what appears to the then presiding tribunal to be just. Now, since the notion of what is just is formed from the balancing of opposite advantages and disadvantages, and as either all the items of the list may not, at the moment, present themselves to the mind, or, should they occur, then as different notions of what is just may be formed by different minds, of a class of particular cases, which, in reason, are alike the Optima lex quæ minimum judici relinquit: optimus judex qui minimum sibi.”Lord Bacon. be subjects of the same law, the whole or a portion may subjected to an erroneous law, and some to one law, some to another. 3. Upon each individual occasion, the labour of balancing opposite advantages and disadvantages must be incurred, and the risk run of some being left out of the account. 4. Upon the occurrence of every new case, the question arises, What will be the opinion of the Court? A conjecture upon this subject can be formed only by comparing opposite analogies. These analogies are so numerous, and the adjustment of their relative bearings is consequently so intricate a task, that hardly a case occurs in which there are not legal opinions either way. Excessive litigation, therefore, is another consequence of the absence of such positive law; for, if there is no recognised law to govern your case, you must necessarily have recourse to a judicial tribunal. 5. Even where new causes are decided from analogy to previous decisions, yet these decisions, from the natural infirmity of the wisest, are too often wrong, and thus modifications of the original error are endlessly diversified. 6. Without such positive laws, we cannot, with certainty, order our conduct or affairs.* This, then, the Reduction of the Law to Writing, is the subject of the following Essay. Vide etiam infra, Chapter I., Sections 2, 3. 5. Division of the subject into two parts. CHAPTER I. Assuming that the principles upon which our system of Criminal Jurisprudence now proceeds are right, have they been adequately pursued? In all disquisitions upon the sufficiency of the present state of jurisprudence,* two questions arise:-1. Assuming. that the principles upon which the system now proceeds are right, have they been adequately pursued? 2. Are the principles themselves right? And from the solution of these two principal questions, two subordinate questions necessarily arise, namely:-3. Assuming that the principles themselves are right, and that it can be shown that they have not adequately been followed up, is it expedient that the deficiency should be supplied? 4. Supposing that it can be shown that the principles themselves are wrong, is it expedient to substitute right principles in their stead? The two principal questions are, as is obvious, so entirely distinct one from another, that those who would pay attention to the first, might, with perfect consistency, refuse to listen to the second. It is proposed, therefore, to give to each a separate discussion, and to consider in the first place, and in the present Essay, whether, Distribution of I. Assuming that the principles upon which the system the first part into two chap now proceeds are right, have they been adequately pur * This term has lately been employed by good writers, to designate as well a body of laws, as the science itself; an example which I have followed. |