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PUBLIC RECORD OFFICE

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PUBLIC RECORD OFFICE, LONDON

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or to omit any part of it on his own responsibility. 1 hope that the more theoretical parts, such as the application, &c., of the Code (Chapter 1.), and the clements of criminality (Chapter III.), may be found universally useful; and the same may be said of the definitions of such offences as murder aud stealing (ss. 157 and 211), which really only emboly the results of the labours of my predecessors, and the classification of offences against the person (ss. 172–174), which is only a re-draft of the English law. On the other hand, though the sections relating to criminal libel and bankruptcy may be suitable to the circumstances of Jamaica or Barbados, they would probably be out of place in the Gambia, where there are neither newspapers or bankrupts; and when it comes to matters of police (Chapter XII), the existing state of the law is, as the fruit of actual experience, a much better guide to what is needed than any general model can be, though even then such a model may provide useful hints as to the form and arrangement, and occasionally the substance; of the law. I may add a practical suggestion which is not likely to occur to some of my readers. Since the number of correct methods of drafting criminal laws is at least equal to that of writing tribal laws, Iain strongly of opinion that a man who takes up the laborious and thankless task of consolidation, should be encouraged to arrange the details of his work to his own taste. A common criminal code for the Crown Colonies, possibly even for the Colonies (the case of England is hopeless), is eminently desirable, but legal drafting is a progressive science, and is eminently an occupation for many heads rather than one, and so long as the main principles of substance and arrange- ment are followed, a variety of detail is to be both expected and welcomed.

The sources from which my draft is derived are best indicated by a slight historical account of the work of my predecessors, but before doing so I must ask to be allowed one preliminary observation. My work is, of course, a mere compilation, produced by a process of collation and selection. In altering and rejecting the work of my predecessors I am in a delicate position, since one of them is Mr. Justice Wright, whose abilities it would be out of place for me to dwell on, and another is one of his late colleagues, of whom I can say still less. I need not, fortunately, make any but the most general criticisms of their work; but it would be no mark of respect to them to make my criticisins otherwise than plainly. In differing from them I do so only after the most careful con- sideration; but I do not feel called on to give up an attempt to make myself clear in order to avoid the risk of appearing presumptuous.

The history of the codification of the English, in which I include Colonial criminal law, begins for present purposes with the Consolidation Acts of 1861, familiar, in name at least, to every practitioner in the criminal courts of this country. These Acts are, as their name implies, a collection of a great number of earlier enactments, with a few new details added, but I believe with no compression of their intricate and clumsy phraseology, and with a careful preservation of a quantity of learning of no importance except from an archæological point

For my own purposes I prefer to put this in my own way, though the matter has been treated of far more authoritatively by Sir Courtenay Ilbert in his recently published “Legislative Methods and Forms, a work to which, once for all, I wish to express my great obligation.

of view.* I do not like to speak with what might seein disrespect of what, at the time it was done, was a most useful piece of work; but I may fairly say that these Acts are unintelligible to anyone who has not an acquaintance with the principles of the law they deal with, and a comprehension of the technical terms they employ, both of which must be acquired from some other source; that their arrangement is haphazard and defective, and that it frequently happens that the practically operative part of any enactinent is so carefully concealed that it needs an experienced practitioner to say where it is. The next attempt at improving the form of the law was a code drafted by the then Mr. Wright, and settled by Sir James Stephen, for use in Jamaica. The code was never enacted as law in Jamaica, but since its publication it has been the model code of the Colonial Office, and has been followed in some of the more progressive Colonies. The date of its publication, 1877, was unfortunate; for in 1878 a Bill comprising a code designed for use in this country, and drafted by Sir James Stephen, was introduced into the House of Commons by the Attorney-General, then Sir John Holker, and the Home Secretary, then Mr. Cross. This was referred to a Commission consisting of Lord Blackburn, Mr. Justice Lush, Mr. Justice Barry, and Sir James Stephen. Under their hands the cole was entirely re drawn, and was published as a report in 1879.† It was again slightly altered by the then Attorney-General and, I believe, Sir James Stephen, and was brought forward as a Bill in 1880 † but, owing in part to the rise of organized obstruction in the House of Commons, was never read a second time.

As far as England is concerned, the history of the colifi- cation of the criminal law stops at this point, nor is it likely that it will ever be resumed, unless the House of Commons surrenders some of that power of legislation which it exercises with ever increasing difficulty. The work of the Commissioners of 1879 has not, however, licen altogether wasted, for various Colonial legislatures, where the efforts of lawyers seem to be less hampered by laymen than they are at home, have adopted the English Code of 1880. with alferations needed by local circumstances. Consequently we find codes closely following the English model in New Zealand (Act No. 56 of 1893), Canada (55 & 56 Vict., c. 29), and, oddly enough, certain native territories in South Africa. Further, a code (Act No. 9 of 1899) which is, to a considerable extent, a redraft of the English Code, was in 1899 adopted in Queensland, after being drafted by the Right Honourable Sir Samuel Griffith, the Chief Justice of the Colony, and settled by a Commission. The example set

• Colonial, no less than English ́ legislation, affords numerous examples of the repetition of obsolete technicalities, which are pre- served merely because the draftsınan does not understand them, on the general principle of omne ignotum_pro_terribili. So in the Crimes Act, 1900, of New South Wales, we find it provided (s. 116) that every larceny "shall be deemed to be of the same nature and subject to the same incidents" as grand larceny was before the passing ^of 7 & 8 Geo. IV. c. 29; while by the next section a punishment is pro- vided for “simple larceny,” and felonies punishable, like simple larceny. I do not suppose there are half-a-dozen men in England who have ever taken the trouble of finding' out what grand larceny was, or is, for I suppose it still exists.

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† 1879, ('. 2345.

The Bill was printed on the 6th of February, 1880, but is now out of print. There are two copies of it in the Stationery Office, but they are not for sale. What is, however, practically a repetition of its more important provisions can be obtained in New Zealand: Act No. 56, of 1893.

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