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PUBLIC RECORD OFFICE
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PUBLIC RECORD OFFICE, LONDON
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by Queensland is now being followed by South Australia, for which Colony Mr. Pennefather, lately an acting judge in New Zealand, and at present the Professor of Law in the Brisbane University, is drafting a code, which, I understand, will be found to follow Sir Samuel Griffith's work pretty closely.
No account, however slight, of English, criminal codes would be complete without a reference to the Indian Penal Code, although, for reasons I need not go into, I do not think that that code is very useful for the purposes of Crown Colonies which are not, like Ceylon and the Straits Settlements, very closely connected with India. This work was begun by a draft by Lord Macaulay, framed during his tenure of office on the Viceroy's Council between the years 1834 and 1838. During twenty years it remained a draft, as the English_Code remains to-day; but after an elaborate revision by the Legis lative Council it was made law in 1860, and since that date, I understand, that, with the additions and alterations which have been suggested by forty years' experience, it has sutis- factorily achieved its purpose, and in one form or another has been introduced into several parts of His Majesty's dominions in the east.
To summarise, the sources to which any draftsman codifying English criminal law at present must refer, are
1. The Consolidation Acts of 1861, 24 & 25 Viet.
cc. 96-100;
2. The draft Jamaica Code of 1877;
3. Sir James Stephen's Criminal Code Bill of 1878 ;*
4. The Code contained in the report of the Commis-
sioners of 1879 ;†
5. The revised edition of this Code introduced as a bill
in 1880 ;†
6. The Queensland Code of 1899 ;‡
7. The Indian Penal Code.
In order to explain the use I have made of these abundant materials, it is necessary that I should, as briefly as possible, make a few remarks of what, in the best opinion I can form, are the merits and demerits of each of these authorities considered as a code.
The Consolidation Acts are, of course, not a code at all, and one must take them as covering not much more than half, though from a practical point of view a very important half, of the criminal law. I have already indicated some of their defects, and will say no more of them. But it must always be remembered that as far as they go they represent the English criminal law as it exists to-day, after a long period of slow but
This is hereafter referred to as the Criminal Code Bill.
† These two codes are not different enough to make it always worth while to distinguish between them; they are therefore hereafter jointly referred to as the English Code, being distinguished, if necessary, by a reference to their dates; in the side references in the draft the Com. missioners' Code is called B, the code of 1880, A.
In the side references to the draft this is referred to as C.
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continuous growth. Traces of the political, the religious, the social, and the industrial history of the country are to be found in their formal, uncouth, and barely intelligible phraseology, and the draftsman who failed to take full account of their contents would show himself grossly deficient both in knowledge and caution. To come to a narrower but not less stringent consideration, they have for forty years been, and are likely to continue indefinitely to be, the written criminal law of England, and most of the men who are administering criminal law in Crown Colonies have been brought up to consider them as the final authority on the matters with which they deal. For practical purposes, therefore, all that is not manifestly useless, or worse, in their contents ought to be preserved in such a form as to make the relation of the new to the old as plain as possible.
The Jamaica Code and the Criminal Code Bill both seem to me unduly to neglect this point of view; as to the arrangement of their contents this seems to me well enough; as to other matters I must distinguish between them. The plan on which the Jamaica Code is framed is to state most of the theoretical part of the law in elaborate definitions and so forth, and to state the practical parts in the briefest possible form. This appears to me the proper principle to adopt, corresponding as it does to the distinction between the law and the facts of the case. My objection to the Jamaica Code is that it carries the principle too far. The definitions are too claborate, ega the definition of intention seems to me only to obscure the matter, and the claboration of the definition of attempt must, I think, be due to inadvertence. The other sections, practically `those prescribing punishments, seem to me to sacrifice clearness to brevity. At first view the brevity is most attractive, but in applying them to any actual case, as I have at times attempted to, they seem to me either to contain numerous oufissions or to offer opportunities for endless dis- cussion. The Criminal Code Bill (I must here refer to my preceding remarks as to the spirit in which these criticisms are muule) proceeds on the principle of combining its theoretical - and practical parts. The result is that, though it covers all required cases, it is frequently difficult to find the practical point required, and almost a complete knowledge of the contents of a chapter is sometimes required to understand the bearings of any particular section. Extreme condensation makes it necessary to read its contents with a great care. As an example of the extent to which coudensation is carried in this code, I may say that theft, fraud, and robbery are dealt with in 35 sections, none of which are as long as, say, s. 75 of the Larceny Act, and most of which average ten lines. Of the ability with which this is done I may not say anything, but the result is undeniably difficult reading. The remedy applied to these defects by the Commissioners of 1879 was, while keeping Sir James Stephen's arrangement, to redraft nearly every section, supplying a great quantity of detail, and frequently following the Consolidation Acts without any alteration, which one may suppose was frequently done when there was any serious difference of opinion between the Commissioners. The English Code of 1880 was the same as that of 1879, subject to certain considerable differences of drafting. The result is that the English Code seems to a reader of to-day to err on the side of elaboration in matter and technicality in style. The latter defect is to a great extent remedied in the Queensland Code, but to my mind, and especially in view of the needs of Crown Colonies, the former is increased.