CO885-(7-8) — Page 298

450

PUBLIC RECORD OFFICE

Reference :-

기리

CO.885

7

PUBLIC RECORD OFFICE, LONDON

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

XX

all these sections are required for further reference, see sa. 156, 159, and Chapter XIX. This baldness is concealed in the English and Queens- land Codes by a declaration in every section that the neglect of the duty therein described entails criminal responsibility in certain circumstances, but subsequent sections make these declarations unnecessary. I prefer to leave patent a defect I do not see my way to remedy, and to leave the way open to any one who can amend it. The defect is after all only a matter of form.

CHAPTER XV,-MURDER and MansLAUGHTER.

The importance of this ('hapter seems to call for a note, but as a draftsman, I have really nothing new to say on the matter. qubject has been most laboriously worked. through again and again by The the ablest lawyers, and the difference between the various authorities referred to is very slight. I have made a few trifling alterations on my own account, but do not feel called on to add to the wealth of comment already available.

SECTION 166.-Killing UNBORN CHILD.

Compare this section with s. 212 of the English Code, and sec p. 25 of the report.

SECTIONS 178, 179.-ENDANGERING THE SAFETY OF PERSONS BY EXPLOSIVES, AND OF PERSONS ON A RAILWAY.

These sections must be read with ss. 290, 291, referring to similar offences against property.

CHAPTER XVII.-OFFENCES AGAINST WOMEN.

The limits of age introduced into this Chapter must of course be decided by local considerations.

SECTION 194.-ADULTERY.

It is hardly necessary for me to point out that this section is not for universal application. It should in fact only be used in so far as it expresses existing law,

SECTION 207.-LAWFUL PUBLICATION OF DEFAMATORY MATTER.

I should suppose that the contents of this section would in many cases be found capable of considerable compression. It is practically an abbreviation of the corresponding part of the English Code, which is again a summary of a good many decided cases and legislative enact- ments. I have, however, thought it better in this case to incur the risk of an excess of detail rather than the reverse.

CHAPTER XXI.-STEALING.

As regards this chapter, I beg to repeat my note to Chapter XV., mutatis 'mutandis, only adding that my innovations are slightly more important than before, and that there is still more abundant authority easily available.

SECTION 210.—THINGS CAPABLE OF BEING STOLEN.

This section may easily require alteration. The principle is that any- thing which is legally private property can be stolen, and it is practically impossible to foresee what objects may or may not be so regarded in different places. I have throughout the code presumed that game is not protected in the Colony as it is in England. The provision as to stealing electricity, mechanical power, &c., is couched in very general terms; it may be possible to put the matter more definitely, but I have not attempted to do so, owing to my ignorance of the subject I am dealing with.

}

xxi

CHAPTER XXIII.-FRAUD.

It will be observed that I have omitted obtaining by witchcraft as a special form of cheating, though it is mentioned in other codes, England, A. 266, R. 286, Queensland, s. 432. For my reasons for this, see note to Chapter XII.

SECTION 233.-FRAUDULENT CONVERSION BY A PERSON

ENTRUSTED.

This section is closely copied from the draft Larceny Act, 1891; introduced into the House of Commons by the Attorney-General after most careful consideration with all the leading authorities on the subject in England. The first proof of this code was in print before the Bill was published, and its adoption has saved nearly an entire page of print. A comparison of my draft with the Act will show that I have amitted certain limitations tɔ the enactment which no doubt are necessary in England, but which would, I think, be out of place in the simpler form of society found in Crown Colonies.

CHAPTER XXIV. VIOLENCE.

It will be noticed that I avoid the term burglary, and make entering a part of breaking; I consider that this is an improvement on the English law, at least where burglary and breaking are in fact both technical terms, and where entering is always really a part of breaking. The law of burglary in fact affords an admirable example in miniature of the accretion of technicalities round a very simple matter.

CHAPTER XXVII-FORGERY, &C.

The labour involved in the drafting of this chapter has been immense. The difficulty is the common one of arranging a mass of detail in a comparatively intelligible form; the way I have attempted to meet it has been to make a very careful comparison between the English and Queensland Codes. I may perhaps be allowed to say that the general idea of the English Code seems to be admirable, but that it is not sufficiently worked out, eg.,a document is a piece of paper and so forth (A. 293); forgery is making a document, .., a piece of paper, which it is not. I am aware of a good many-possible grounds of objection to my draft, but am not prepared to accept any criticism which is not based on an unusual amount of close and careful study. I have deliberately made ordinary forgery punishable with seven years' penal servitude for the sake of brevity.

CHAPTER XXVIII.—COINING.

It will be noticed that I do not distinguish between gold and silver coin on the one hand, and copper coin on the other; also that I treat foreign on the sane footing as English coin. I need say nothing as to the second point. As to the first, the distinction between coining gold or silver and coining copper is curious from an antiquarian point of view, but for practical purposes is quite obsolete. The issue of money is one of the most distinctive characteristics of the King's prerogative, and in old daya an infringement of the right ranked as trenson ; but in those days there was no copper coinage, at least none worthy of royal notice. The difference between gold and silver money and copper money therefore led to a very important distinction, one namely, at least between treason and misdemeanour. The difference has now disappeared but the distinction remains, but I venture to think that it is aseless. Those who consider that in this case melius est jeteve fontes will find references to early authorities in 1 Hale, P. C., Chapters XVII. to XX., and 1 Hawk, p. 20, Book 1., Chapter II., s. 57. For my part i prefer going down stream,

SECTION 278.-Stealing FROM THE MINT.

I do not know that there is any Crown Colony in which this section would be applicable.

xxii

SECTION 283.-DEFACING COINS.

I repeat the substance of the English law on this subject, but it is plainly inapplicable to a place where three-penny bits are valuable as articles of dress, and all coins are treated as a convenient form of bullion.

CHAPTER XXIX.-DAMAGE TO PROPERTY.

With some hesitation I have omitted any definition of "wilfully," following the Queensland rather than the English code. The chapter must be read with careful attention to s. 26 (Intention), and s. 28 (Mistake of Fact).

SECTIONS 290, 291.-DAMAGE TO BUILDINGS AND SHIPS BY EXPLOSIONE, AND DAMAGE TO RAILWAYS.

These sections must be read with 88. 178, 179, referring to offences against the person.

CHAPTER XXX.-FRAUDS BY DEBTORS AND IN BANKRUPTCY.

The contents and application of this chapter depend on the local law of bankruptcy. It may very well be that it is out of place in the code altogether.