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PUBLIC RECORD OFFICE

Reference :-

LTIC.O.885

PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO

some qualifications had been made in it, would have included under one general principle a considerable number of the enactments contained in Part III. of the Draft Code (namely, those dealing with the execution ́of irregular warranta, &c.). The difficulty presented on the one hand by our rules of construction to (? in) expressing matters of such intricacy in general language, and the danger apparent on the other hand of losing the certainty essential for a code, have induced us (at some mcrifice perhaps of brevity) to adopt a mode of dealing with these subjects, which reduces to an intelligible and systematic form a great body of law on which precise rules are very desirable, and which is at present in an extremely obscure and fragmentary state." In accordance with the principle thus laid down, the Commissioners omitted any general reference to the effect of mistake of fact, but introduced four sections (s. 28–31) dealing with the Execution of erroneous Sentence or Warrant, the Effect of Sentence or Process Without Jurisdiction, Arresting the wrong Person, and the Effect of an irregular Warrant. With serious misgiving I have not followed this example. My principle reason for this is that I have attempted to remove any question of unlawful intention, the mens rea of Quarter Sessions, from the administration of my code, and this makes it necessary to state specifically every ground of defence covered by that phrase. The question is a great theoretical difficulty, but is of curiously little practical importance.

SECTION 30.—ABREST WITHOUT A WARRANT BY A PEACE OFFICER.

As to offences as to which it is provided that the offender may be arrested without a warrant, see Appendix B., p. xiii. This phrase recurs constantly in the subsequent sections in this chapter.

SECTIONS 49-54.-DEFENCE OF PROPERTY.

These sections are dependent on s. 45. When physical force is used in retaining or retaking property, the party who is in the wrong will asmult the other party within the terms of a. 45, and the latter is then entitled to use such force as is necessary for his protection. The sections might easily be abbreviated, but I have in vain attempted to abbreviate them, without making them almost hopelessly complicated. The difficulty consists in expressing the dictates of common sense in definite language, but there is an obvious difference in their application to real and personal property. The corresponding provisions of the Queensland code and Mr. Pennefather's South-Australian code should be compared with these sections.

CHAPTER V.-HIGH TREASON, OBSTRUCTING THE GOVERNMENT, AND SEDITION,

See the note on 8. 6. Most of the sections in this chapter are, I think, what may be considered as omissions in the English law. A careful study of a variety of English statutes is required to form a judgment as to how far this is the osse, and I am conscious that my reading of the statutes in question is very likely wrong. I have, however, tried to err on the side of unnecessary insertion. Sections 69 and 74 are of course particularly suitable for colonies. The policy of the latter may be open te question, but it has, at all events, the authority of Queensland to rely on.

SECTION 66.—High TreASON,

This section does not apply to a subject of His Majesty outside His Majesty's dominions, eg., in French West Africa, conspiring to levy war within them, s.g., în Sierra Leone'; It leaves him to be dealt with according to English law (see s. 6), by which such conspiracy is treason only because such levying war is compassing His Majesty's death.

SECTION 67.-—CUMPIRING, &c., TO LAVY WAR IN THE COLONY.

This section is necessary because the English Act is confined to intending, #c., to levy war within the United Kingdom; it does not, and cannot, apply to a person forming and manifesting his intention. omizile A.B. ; but ane u. 4.

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SECTION 80.-DISCLOSING Official SKORETS.

See Note to s. 6. The drafting of the Official Secrets Act, 1889, is so defeétive that I have been tempted to express what it is intended to contain in one section. I hope I have been successful; but reference most be made to the English Act, which is as a matter of fact in force in the Colony (see p. xvi.)

CHAPTER VIIA.—ÖFFENCES CONNECTED WITH THE POST OFFICE,

It is possible that this Chapter will not be needed, as provisions dealing with the subject of its contents may be contained in a separate Ordinance. On the other hand a good many Crown Colonies seem not to have dealt with the matter at all, and this Chapter may prove useful if a separate Ordinance is require £. Personally I consider that the Chapter is out of place in a criminal coile. I have assumed that the Colony is served by a private Telegraph Company, which is I believe the case with every Crown Colony. It will of course be observed that there are no sections in this Chapter containing a system of fines designed to protect the monopoly of the Post Office, or to ensure the proper custody of mails by a ship's master; cf the Post Office (Offences) Act, 1837.

SECTION 108.—COMPOUNDING A FELONY OR MISDEMEANOUR.

I have departed from the English law and the Queensland Code in making compounding a Misdemeanour an offence. The English law on the subject is exceedingly defective owing to the distinction between Felony and Misdemeanour; and I cannot help thinking that it has been followed in the Queensland code out of misplaced respect. When a Misdemeanour is also a tort, as in the case of damage, the injured person has an undoubted right to sue or take compensation for the loss he has suffered, and not to prosecute'; but it is surely against the well established policy of the law to allow him on the one hand to enter into an agreement to do so, or on the other to use a prosecution or a threat of a prosecution to obtain his remedy. The point however requires careful consideration.

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SECTION 116.—INSULT TO A RELIGION.

This section must not be enacted without consideration. It represents two sections of the Indian Penal code in a very much condensed form. I should suppose that in some colonies the section as drafted might be useful; in others it would, at best, be useless. The law of England is at present particularly ill adapted for giving any assistance to a colonial legislature. A set of enactinents framed to preserve Christianity from criticism is still in existence; but is obsolete except for the purpose of preventing public blasphemy of the gromer kind. It will be observed that the English and Queensland Codes are silent on the subject.

CHAPTER XIL-OFFENCEŠ AGAINST PUBLIC CONVENIENCE.

This Chapter is particularly open to local amendment. Most of the offences it contains are simple offences, and many of them are probably already dealt with by local legislation. In such cases there is no reason for making laws, the need of which has never been felt, and local circumstances will probably make the local legislation more convenient than that here provided. At the same time all these provisions have authority, and any may be found an improvement on the existing law, especially if that is copied direct from English legin- lution. Such enactments as s. 131, and various subsections of s. 1-16 áre of course designed for a comparatively primitive state of society. It will be noticed in some Colonies that I have omitted any reference in the code to the practice of witchcraft, which might be inserted in this Chapter. My reasons are that the subject is a very delicate one, that it probably requires different treatment in almost every Colony, and that if any provisions on the subject are needed they are probably already in existence.

CHAPTER XIII.—DUTIES TENDING TO THE PRESERVATION OF LIFE.

The contents of this Chapter are not satisfactory. Section 148 in very nearly, and Section 149 is quite, a truism in terms. The fact is that

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