« 上一頁繼續 »
of St. Stephen's till within these very few years.
When a change has been contemplated, the uniform practice has been to pass a crude and generally hasty act; sometimes to repeal some vaguely described portion of an old law; sometimes to extend some portion or section of some generally, and often inaccurately described law, to some set of cases pointed out with equal uncertainty and indistinctness ; sometimes to amend the provisions of an act, &c., as far as respects something more or less clearly indicated; often to pass a new law without the least notice of the old statutes which it materially affects : leaving it to those who have to study or to administer the particular branch of law, to ascertain, as best they may, to what extent the old law is repealed by the new, and how far it still remains in vigour. Hence no branch of statutory provisions is to be found in a clear and simple law, but in a body and congeries of laws often extending to the number of a score, and not unfrequently to the number of sixty or seventy, while each one of these frequently embraces some dozen of pages, and some score or two of sections—these pages and sections to be mutually expounded by one another, and often mutually conflicting
This system has of late years arrived at such a height of perplexity, that even if lawyers had not enjoyed the additional luxury of a common law, dispersed in some hundred volumes of digests, abridgments, text-books, indexes, and adjudged cases, the study of the statute-book alone might be considered sufficient to puzzle the most acute, and exhaust the most indefatigable. Authors and law booksellers have profited, while lawyers have been burthened by the demand thus occasioned for digests and treatises, and synopses and indexes, simplifying and elucidating those pages which ought, if properly framed, to proceed from the legislature in a condition to be legible and intelligible to the public who have to learn them and obey their injunctions. Magistrates and officers of justice are perpetually perplexed and endangered in the enforcement and execution of laws too uncertain and confused to be precisely understood. Even judges of the highest learning and industry have occasionally erred in determining upon important rights of individuals, from overlooking some short but essential clause or act buried in surrounding verbiage foreign to the subject before them; while, as Lord Bacon observes, with a prophetic accuracy, 'the ignorant lawyer shroudeth his ignorance of law in that doubts are so frequent and so many.' We ourselves could name a single section of a modern act, not undistinguished in Westminster Hall, which, besides occasioning divers lawsuits, has, from its ambiguous and perplexed phraseology, drawn not less than sixty learned opinions, on cases affected by it, from a
single distinguished lawyer, thereby contributing some hundred pounds to his wealth. The statutes of the realm have thus become almost a sealed book to the eyes of the unlearned public. A country gentleman, or a merchant, could no more dream of opening the statutes and ascertaining for himself the punishment affixed to a given offence, or the period within which a certain offender must be prosecuted, than he could hope with accuracy to interpret a Runic inscription, or the hieroglyphics on a Herculaneum papyrus. That this state of things has long been, must be, and is, highly unsatisfactory to the public, it is impossible to doubt. As the failures of justice and inconveniences arising from it have become more frequent, the complaints have naturally been more general and loud; and that this dissatisfaction would have been still more strongly expressed than it has, we feel convinced, had it not been for that undoubted purity and unimpeachable integrity which has long distinguished the practical administration of the laws in all its higher branches, and which, more than any thing else, has induced the public to wink at the evils and defects belonging to the form in which our laws are embodied
Still, however, as there is no reason why laws should not be perspicuous and accessible, as well as purely administered, the public have a right to expect that their form should be improved in all points in which improvement is attainable or desirable. And certainly those who most admire their excellent spirit, must naturally be most eager to see all causes of objection removed, which impede their beneficial operation, and bring suspicion on their wisdom and value. That branch of the statutes which relates to crimes is certainly one in which the perplexities and inconveniences before alluded to exist in great exuberance, and in which they have been attended with the most memorable obstacles to public justice, and the punishment of crime. No field could, therefore, be more truly worthy of the skill and exertions of Mr. Peel and the professional gentlemen who have aided him—none could afford wider scope for the improvements of an arranging and simplifying mind. We have hinted generally at the confusions in the statute-law. We shall give some particulars in noticing the amendments which Mr. Peel has effected. We also would refer our readers (unnecessary as such a reference is) to the excellent speech with which Mr. Peel introduced his amending acts; which, we confess, appeared to us as admirable for its moderate and conciliatory tone, as it was curious for the details introduced, and convincing in the reasonings by which he supported the amendments and consolidatious proposed.
Of the confusion and intricacy of many of the laws affecting crime, arising from the inconsiderate manner in which they were originally framed, generally to meet particular cases, and the equal rashness with which they had subsequently been qualified or altered, so as to meet new emergencies, Mr. Peel gave some striking instances ;—and a multitude of others might readily be gathered from the learned and useful works of Messrs. Russell and Starkie. There were not less than ninety-two statutes relating to the single crime of theft, from the Carta de Foresta in the reign of Henry III. to the 6th of George IV.; forty-two statutes relating to malicious injuries to property; and twenty statutes relating to stealing trees and timber. One of the most remarkable instances of confusion and intricacy was in the laws relating to the common crime of receiving stolen goods; and herein, in our opinion, one of Mr. Peel's most successful simplifications has been effected. There were twelve statutes on this subject, passed on the spur of particular occasions, and made to meet particular offences found to be prevalent;---in short, a sort of race appears to have been kept up between the felons and the legislature, in which we must say the breakers of the law generally showed rather more dexterity than its makers. Thus one statute made it felony to receive stolen lead, iron, copper, and bell metal ; another statute applied to pewter; a third, to jewels and watches; a fourth, to all goods and chattels; and a fifth to bills, bonds, and securities. As to the metal statute (29 Geo. II. c. 30.) there were doubts whether it related merely to the materials in their raw state, or whether it extended to wrought goods : and as it did not mention pewter, the felons soon found that they might receive stolen pewter-pots with perfect impunity—to exclude them from which profitable avocation the pewter statute (21 Geo. III. c. 30.) was passed. Then, the jewel and watch statute, by a clerical error, omitted in one part of the law the essential words ' watch or watches ;? so that when Esther Moses received, in 1783, Mr. Drummond's stolen watch, chain, and seals, her counsel argued that it was lawful to receive a stolen watch, chain, and seals, since there were no express words applying to them, and they did not fall within the words jewels, gold, and silver plate. However, the cornelian seal being clearly a jewel, though it was doubtful whether a gold watch and chain were gold plate, we believe Mrs. Moses was, with difficulty, shipped for Port Jackson. But the confusion was not merely as to the kind of property, the receiving whereof was punishable; there were moreover endless subtleties and distinctions as to the degree of the offence and the mode of prosecution and trial. At common law the bare receiving the
goods stolen was no felony, but a misdemeanor. Then a statute of William made the receiver an accessary after the fact to the felonious theft;—but then the accessary could not be tried for the felony unless the thief was convicted ; nor for the misdemeanor, because it was merged in the felony ;—and besides, if it happened to be a petty larceny, in petty larcenies there could be no accessary, all being principals. Accordingly the receiver used to employ the thief, and contrive to get him out of the way, and then quietly enjoy the stolen goods and laugh at the defective law. Then the legislature, by another law of Queen Anne, in order to be even with the receivers, made the offence of receiving, a misdemeanor punishable by fine and imprisonment, though the thief were not previously convicted. But the renowned Jonathan Wild, Proteuslike, evaded the "nodus,' when indicted for a misdemeanor in receiving, by showing that the thief had before been tried and hanged, and that the statutes made receiving a misdemeanor only when the principal felon could not be taken and convicted. This loop-hole was partially closed by subsequent acts, but still their specific enumerations of goods left many cases unprovided for. Then it was thought desirable to make receiving triable as a felony, whether the thief could be taken or not; but the desire miscarried, and the statute of 3 Geo. IV. c. 24. s. 3. passed for that express object, was declared by the judges to be so loosely worded, that no indictment could be framed on it. These are only a portion of the subtleties and intricacies attending the law on the simple and frequent offence of receiving stolen goods, which Mr. Peel has, successfully, swept from the statute book. This he has effected by a simple and philosophical enactment of about ten lines, providing that whenever the offence of stealing or taking the article, whatever it may be, is a felony, the receiver receiving it knowingly shall be guilty of felony: where the offence of taking is a misdemeanor, the receiver shall incur the like guilt of misdemeanor: that he may be tried either as an accessary, or for a substantive felony—and this whether the principal felon shall have been convicted or not, or shall be amenable to justice or not—and whether the stealing amount to felony at common law, or by virtue of that act; and all the niceties as to the county where he is to be indicted are removed by providing that he may be tried and punished in any county or place where he shall have had the property, or in which the principal felon may legally be tried. A more judicious melting down of complex, cumbrous, and rusty mechanism cannot be conceived, and the reduction in size is, in its way, scarcely less valuable than the simplification in principle. The new provision of 7 and 8 Geo. IV. c. 29. ss. 54, 55, 56, embodying and amending the former twelve acts, and comprizing
the whole law on the offence of receiving stolen goods, is comprized in three short sections.
Similar anomalies and mischiefs arising from the same cause, -of partial and hasty legislation to meet particular cases, without reference to any general principle--are without end in the statute book; producing the double evil of length and multitude of statutes, and of defects and omissions never discovered—till new offences occur, and pass unpunished for want of a general provision to meet them. Thus, when it was found a common offence for lodgers to steal plate and furniture from the lodgings they hired, a clause was passed in 7 Will. & Mary, c. 9. to meet the particular case; but instead of being framed to meet other analogous cases, it was confined strictly to stealing from lodgings ;' and, accordingly, when Charles Palmer was charged with stealing plate from a ready-furnished house rented by him at Brighthelmstone, he escaped-because it was found that the words of the statute did not apply, and that the offence could not be punished as a common-law larceny, since the offender had the lawful possession of the house and goods. Mr. Peel has remedied the defect by a general clause, and this is extended to fixtures as well as goods, which were not included in the former law. Again, what the law calls choses in action, that is, bills, notes, bonds, being of no intrinsic value, could not be the subjects of larceny at common law; though certainly there was no great wisdom in allowing an offender who had stolen a thing to defend himself on the ground that what he had thought worth stealing was of no intrinsic value, or to urge in grave men's hearing that a security which represented and produced money possessed no legal worth. This inconvenience was remedied by statutes making it criminal to steal certain specific kinds of securities; but still it was found that securities in foreign funds, &c., had been omitted, and that it was not punishable to steal them. Mr. Peel has provided for this omitted species of security, (now become so common,) and to prevent difficulties in the denomination and description of the instruments, has provided that all the class may be described by the terms ' valuable security.'
The old legal doctrines as to the character of landed property introduced many absurd and mischievous niceties into our criminal law. To lay down that it should be no felony to steal lands (viz., to purloin a manor, or to pocket a farm) was harmless enough, though perhaps superfluous; but when this doctrine was extended to goods and chattels fixed to the freehold, and severed by the thief, it seems to have been a quibble worthy only of Counsellor Botherum to say the thief should not be punished for stealing a door, or lead, or trees, or corn, because, though he had by his