8
neither the Government nor the House of Commons have time for much controversy concerning matters which do not possess the public mind for the time being or affect the interests of political parties. In the Crown Colonies, on the contrary, any Bill introduced into the Legislature would probably be passed without effective opposition or prolonged con- troversy; inasmuch as the Crown has absolute power of legislation in the last resort, and what it proposes, unless conflicting with powerful pro prietary or other interests, is not likely to be needlessly obstructed.
But whilst this facility affords great and invalu- able opportunities for beneficent legislation, it is attended by this disadvantage—that the objec- tions to a Bill are not, in the process of enactment, sedulously sought out and forcibly presented by parties hostile to its authors and supporters. This makes redoubled caution necessary in the pre- paration of Bills. And yet, on the other hand, caution need not be carried to the extreme of preventing tentative legislation; for if experience should show that a mistake has been made, there will be every facility for its legislative correction. These considerations suggest that a preference should be given, in a theoretic or innovating legis- lation, to provisions which have already been the subject of discussion and controversy embodied in authentic records, such as the Reports of Com- missions or of Parliamentary Committees, with the appendices of evidence, or which have already
Innovations to be preferably, but not exclusively, such as" have been publicly agitated and dis- 4.
Leanings to mercy of English law
and sentiment.
9
been enacted in British or Foreign Codes; whilst they also indicate that the preference of these need not involve an absolute exclusion of others.
There are certain principles or maxims or provisions of Penal Law and Procedure as to which it seems to me to be desirable to inquire-- 1st, whether they do or do not fall within the preferential category; and, 2nd, whether, if not falling within it. they are nevertheless such as call for revision with a view to change.
lu England, in the last 200 years, a signal alteration has taken place in public sentiment, and also in the weight and authority attached to public sentiment, in respect of crimes and punish- ments. Formerly the leaning was in favour of public interests, latterly it has been in favour of the interests of persons accused of crime. Thus,
in Bacon's maxims of law, we have (Regula XII),
-
· Receditur à placitis juris potius quàm injuriæ
et delicta mancant impunita;" and the reason given is, "Quia salus populi suprema lex, and salus populi is contained in the repressing offences by punishment." lle distinguishes afterwards between the "placita juris ” or “regulæ positivæ on the one hand, and on the other the "regulæ rationales or higher sort of maximus;" and though the distinction is not very definitely expounded, I collect that at all events no merely technical rule was to be allowed to stand in the way of deserved punishment. In our times the Crown cases reserved jurisdiction is founded upon
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