ON THE

REDUCTION TO WRITING

OF THE

CRIMINAL LAW OF ENGLAND.

"It fortunately happens, to prevent all controversy and elation of mind, that our predecessors will remain undisturbed in the honour and reverence due to them; whilst we pursue our own design, and reap the fruits of our moderation. For, if we should pretend to produce any thing better than our predecessors, yet proceed in the same way as they did, we could by no art of words prevent some apparent rivalship in capacity or ability: and however allowable this might be, as it is a liberty they took before us, yet we should know the inequality of our own strength, and not stand the comparison. But now, as we go upon opening a quite new way for the understanding, untried and unknown to our predecessors, the case changes, and all party and contest drops.

"And now we have only this request to make; that as we have bestowed much thought and care, not only that what we offer should be true, but also as much as is possible that it should be accessible to the numan mind, though strangely beset and prepossessed; we entreat it, as a piece of justice at the hands of mankind, if they would judge of any thing we deliver, either from their own sense, the cloud of authorities, or the forms of demonstration which now prevail as so many judicial laws; that they do it, not on the sudden, and without attention, but first master the subject, by degrees make trial of the way we chalk out, and accustom themselves to that subtlety of things which is imprinted in experience; and, lastly, that by due and seasonable perseverance, they correct the ill habits that closely adhere to the mind: and when thus they begin to be themselves, let them use their own judgment, and welcome."Lord Bacon's Introduction to his Novum Organum.

"We suppose it will be granted, that that code of institutions is the most perfect, which most effectually provides for every difficult case as it emerges, and therefore averts, as far as possible, the occurrence of doubt, and, of course, of litigation, by giving the most accurate and certain interpretation to the general rule, when applied to cases as they arise.”—Scott's Life of Napoleon.

PRELIMINARY OBSERVATIONS.

CERTAIN reasons, stated and examined in the following pages, have been declared against the Reduction of the law to Writing; misleading, it is conceived, the judgments of many eminent members of the profession. And did the argument in its favour depend upon any other data than those obtained by intuition only,-was the proposition sought to be established by a balancing of opposite arguments, a comparison of opposite facts and presumptions,—it would, under the circumstances, be in vain to anticipate that unbiassed attention so necessary to its adequate adjustment. Its claims to that attention are rested upon the single circumstance, that it can be proved to demonstration, that the proposition, so to speak, is a question of figures; and that it can be proved to demonstration, that the reasons declared against its adoption are founded in misconception.

The verification, however, of these assertions, will be nothing to the disparagement of those eminent persons; since, though the question upon which their opinions were given is a question of jurisprudence, yet it was no part of their duty as lawyers to qualify themselves for its solution. It is no disparagement to a physician that he has misconceived the principle of association, or any other of the laws of mind; since, though appertaining to that being with which his attention is occupied, yet the knowledge of that principle (to assume the fact) is not necessary to

the perfection of the healing art. In like manner, it is no disparagement to a lawyer, that he has misconceived the principles upon which the jurisprudence of his Country ought to proceed, and upon which, with perfect safety and feasibility, it can proceed; since, though a branch of that science upon which his thoughts are employed, yet an acquaintance with those principles is not at all essential to the discharge of his professional functions. It is no disparagement to assert, that the opinion of a lawyer, whatever his professional eminence may be, who has not addressed his mind to this particular object, is worth no more than the opinion of any other man.

Should it be objected to the course pursued, that the refutation of living opinions is little likely to advance a cause, however dependent upon that refutation; it may be replied, that the peculiar circumstances of the present ease render it different to all others of its kind. The avowed purpose of the pending reforms being, to place the jurisprudence of the country in that state which reasoning can demonstrate to be the fittest and most appropriate, is a guarantee against the operation, if not existence, of unworthy feeling.

No less fortunate are the other auspices under which a measure for the Reduction of the Criminal Law to Writing would make its first appearance; in that neither

"Even in matters purely intellectual, the prejudices and the selfishness, or the vanity, of those who pursue them, not unfrequently combine to resist improvements, and often engage no inconsiderable degree of talent in drawing back, instead of pushing forward, the machine of science. The introduction of methods entirely new, must often change the relative place of the men engaged in scientific pursuits; and must oblige many, after descending from the stations they formerly occupied, to take a lower rank in the scale of intellectual advancement. The enmity of such men, if they be not animated by a spirit of real candour, and the love of truth, is likely to be directed against methods by which their vanity is mortified, and their importance lessened."-Professor Playfair.

does the decision of its merits belong to any particular class of men, nor has it ever yet received a decision. The slow progress of truth, the common complaint of every age, is, amongst others, ascribable to the following very influential causes: 1. To the circumstance of there being a particular class in society, who are, or are supposed to be, the sole arbiters of a particular question. A body of men are little disposed or qualified to question a system, in the principles of which they have been educated, and when regarded as their peculiar patrimony, view with jealousy the attempts of individuals of their own fraternity, and, with much greater, those of strangers. But the question which such a measure would involve, is not necessarily to be solved by lawyers. The question which peculiarly is the subject of their province is this,—what are the established laws, either expressly promulgated, or to be collected from inference, analogy, or interpretation?

Lawyers write, according to the states where they live, what is received law, and not what ought to be law; for the wisdom of a law-maker is one, and of a lawyer is another."* The question involved by such a measure would be,-In what form shall those laws be expressed? 2. The circumstance that the question has, upon former occasions, been debated, and all that is now advanced in its support been answered, is another obstacle to the progress of truth. People, not themselves under the influence of those feelings which induced the former opponents to prolong the error, are disposed to regard their opposition as fair and conscientious, and in deference to their abilities, or more comprehensive views, and from incapacity to define the very ground of their objection, are apt to distrust their own

* Lord Bacon.

judgment. But in reference to the present subject, the question has never yet been brought to a decision.

If, too, it shall ultimately appear,* that all who have advocated the reduction of the law to writing have. entirely misconceived the objects which the reduction is destined to attain,-have altogether mistaken the mode in which the reduction is to be accomplished, and, in so doing, have demonstrated the impracticability of attaining the objects which the reduction is destined to secure,― this circumstance will be likewise favourable.

Most

The discussion of this branch of the subject is too long to be entertained in a pamphlet; but the following general observations are subjoined :

Those who advocate the Reduction of the Law to Writing, have one of three objects in view -1. To decide between conflicting opinions, and correct acknowledged imperfections; 2. To preserve the rules which now obtain from any subsequent change; 3. To furnish rules for the decision of future cases.

To what extent they contemplate these object, is to be gathered, not from their declaration upon the subject, but from the modes which they recommend for obtaining them. Since, in spite of their declarations to the contrary, men cannot be said to contemplate ends, for the accomplishment of which the means which they recommend are totally inadequate.

Upon examining the different systems, which have hitherto been advanced, for Reducing the Law to Writing, it will be found, that the ends which their authors have had in contemplation, are the two first, and the two first only; namely, 1. To decide between conflicting opinions, and correct acknowledged imperfections; 2. To preserve the rules which now obtain from any subsequent change; and not, as in the system now recommended; 3. To furnish rules for the decision of future cases.

To fix some certain definite rule, where the authorities are at variance, and to substitute what is right for that which is admitted to be wrong, is, when attainable, a proceeding of which all must approve. But, for this purpose, to advocate the reduction of the entire system to writing, is to propose a remedy infinitely too extensive for the evil to be redressed,-to recommend a change not warranted by the reasons assigned for it.

To preserve the rules which now obtain from any subsequent change, can be beneficial only upon three suppositions: 1. That the rules which now obtain are just; 2. That it is probable that the courts will, at some future period, change them, and thereby substitute for what is right that which is wrong; 3. That even admitting the rules which now obtain to be erroneous, yet it is better to preserve them for the present and in all future time, by taking from the courts the discretion which, under the exist ing system, they have of changing them. Neither of which suppositions, it is conceived, will be allowed.