PUBLIC RECORD OFFICE
Reference :-
C.O.885
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tions of Judges, admirably qualified to discharge such a task as far as their powers allowed them to do so. The English Judges have always formed one of the best subordinate Legislatures in the world. They are the picked members of the most active and energetic profession in the country, by the members of which their decisions are jealously tested and criticized. The Courts are checks on each other; for they are not bound by each other's decisions, and they may even overrule those of their predecessors on cause shown. The Judges are nu- merous enough to give their decisions weight, but not enough to lose their individual sense of respon- sibility. They are also the only body of the kind. The Court at Lyons and the Court at Bordeaux may take different views, but a decision in West- minster Hall is the Law throughout the whole of England. It is to these circumstances that Case Law owes its merits. Decided cases embody the result of an immense amount of experience and of shrewd practical acquaintance with the subject- matter to which it refers. The Old Common Law was, no doubt, meagre and crude, and most of the Statute Law is special and narrow-minded; but the modern Case Law contains au immense store of true principles and strong common sense, applied to the facts with consummate practical skill, though so much mixed up with special cir- eumstunees that it is infinitely less useful than it might be made. The general result is, that the Common Law, the Statute Law, and the cases which explain the one and the other, hold in
On what basis to Penal Code for Colonies.
Construct
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code well
suspension an admirable criminal adapted to the wants and feelings of the nation, and framed upon practical experience of them, but destitute of arrangement, deformed by strange technicalities, and mixed up with a heterogeneous mass of foreign matter. The question is, how to disengage the pure metal from the rich but mugh ore, and how to cast it into a servicable form "*
If the answer to this question could he dis- the Crown covered, I am not sure that it would point to the best way of going to work in the prepara- tion of a Penal Code for the Crown Colonies. There are three recent Penal Codes of high reputation, and in the English language, that prepared by Mr. Livingston for the United States in 1828, the New York Code, and that prepared by Lord Macaulay and his colleagues for British India in 1837, and in the construc- tion of these Codes it may be presumed that as much of the material of English law was used as their authors conceived to be worthy of incorporation; and it so, it may deserve to be considered whether in constructing our Penal Code we should not start from the advanced ground which they have occupied rather than throw back our basis of operations to the ground which they have left behind. I am not sufficiently acquainted either with English Law or with the Codes to know how much of the one is to be
***A General View of the Criminal Law of England," by James Fitzjanes Stephen, pages 337-9.
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3 PUBLIC RECORD OFFICE, LONDON