SIR JAMES GRAHAM AND THE CRIMINAL LAW.

TO TIIE EDITOR OF THE SPECTATOR.

135, Sloane Street, 17th April 1843.

SIR—The very just observations contained in your weekly summary of Sa- turday last on the remarks which fell from Sir JAMES GRAHAM as to the con- solidation of the criminal law, induce me to address you on this subject—s most important one of itself, and one on which the Home Secretary appears to be most strangely misinformed.

It is plain from the reported words of Sir JAMES GRAHAM, that he con- siders the Criminal Law Commissioners to have recommended merely the con- solidation of the criminal law. Now can it be credited, that this consolidation— anti not the mere suggestion of it—forms the special object of the Commission ?

that for ten years the work has been in progress; and that the Seventh Report, presented to Parliament in the course of last month, actually contains the com- plete digest of the whole written and unwritten criminal law of England with respect to crimes and punishments, (except as to offences punishable solely on summary conviction before the Justices of the Peace,) or, in other words, the English penal code, comprised in 170 pages of a Blue Book, and waiting but for the sanction of Parliament to render one portion at least of the law of England as easy of access as the Code Napoleon ? The "specimens of the mode in which the Commissioners suggest this to be done in the laws as to treason and murder" exist nowhere but in the Home Secretary's imagination, except as parts of a whole : the "compilation of the statutes," the "thorough examination of the decisions of the Judges and of the interpretations of the law of the Courts," all this is done; and what "the Government, as a Govern- ment, should not undertake," has been actually executed.

This is worse than incredible, I say; it is discreditable. Historically speak- ing, no public undertaking is more important than the digesting of the law ; and here is a Minister actually unconscious that a code has been made for him by his own Commissioners ! I have before me the seven Reports of the Criminal Law Commissioners; and as I do not believe that there exist, I do not say ten persons in a thousand, or in a hundred thousand, but in a million, who are acquainted with their contents, I feel convinced that the following meagre notice will be new to most of your readers.

A Commission was issued on the 23d July 1833 to five barristers, directing them " to digest into one statute all the statutes and enactments touching crimes, and the trial and punishment thereof, and also to digest into one other statute all the pros-isions of the common or unwritten law touching the same, and to inquire and report how far it may be expedient to combine both those statutes into one body of the criminal law, repealing all other statutory pro- visions, or how far it may be expedient to pass into a law the first-mentioned only of the said statutes, and generally to inquire and report how far it may be expedient to consolidate the other branches of the existing statute-law, or any of them."

This Commission, be it observed, is insufficient, in not giving power to the Commissioners to suggest the amendment of any part of the law : this, how- ever, they appear very generally to have done on their own authority. The First Report, (18340 contains considerations on the plan lobe adopted in the digesting of the law, and a specimen-digest of the law of theft. The Second and Third Reports, prepared by special command, (1936-370 are in a manner incidental, and treat, the former of the infliction of capital punish- ments and the defence of prisoners by counsel, the latter of the trial of juve- nile offenders. The suggestions which they embrace have in a great measure been embodied in the acts passed in the 1st Viet. for the relaxation of the rigours of the criminal law. The Fifth, Sixth, and Seventh Reports contain, piecemeal, the actual digest of the law ; to every head of which are subjoined prefatory remarks and notes. The last recapitulates the whole, in the " Act of Crimes and Punish- ments."

Some portions, it is true, of the existing criminal law of England have been excluded from the digest ; with what reason, let the following samples show. It is treason, (1st Eliz. c. 1, s. 30,) after having been twice convicted, to mantain the spiritual authority of any foreign prince or prelate.

Treason, (13th Eliz. c. 2, s. 2,) to obtain publish, or in any manner put in use any manner of bulls from the Bishop of obtain,

Treason, (234 Elia. c. 1,) to withdraw any persons or to be withdrawn from

the Established religion to the Romish, or to promise obedience to any pre- tended authority of the See of Rome, or of any other prince ; &c. and a mispri- sion of treason to aid and abet or conceal any such offence for the space of

twenty dap.

TIMOR, (27th Elie. c. 2,) for any Jesuit, seminary priest, or other priest

ordained by any authority from the See of Rome, to remain in the Queen's dominions after forty days from the end of the then session of Parliament. None of these acts are repealed. The Roman Catholic Disabilities Relief )jill only exempts from penal consequences such persons as take the oath therein mentioned ; so that every Roman Catholic in the realm actually occu- pies the anomalous position of one guilty of treason, yet exempted from punish- ment on compliance with certain formalities. It is also a prtemunire, (incurring imprisonment daring the King's pleasure, and forfeiture of goods and chattels, lands and tenements,) to contribute any money or relief to any priest ordained by the Bishop of Rome, or for the main- tenance of any college of Jesuits or seminary beyond the seas. This enactment appears to be still in full force. The following, among the actually digested offences, may yet startle some persons. ,Petitioning above the number of twenty for alteration of matters established by law in church or state, without previous consent of three or more Justices of the Peace for the county, or of the major part of the Grand Jury—or repairing to her Majesty, or to either House of Parliament, for the purpose of complaint, &c. to the number of ten persons—subjects the offender to 1001. penalty and three months' imprisonment. Being a member of any society or club, not exclusively for religious or chari- table purposes, which shall elect any committee, representative, or missionary, to confer with any other club or society, or any committee, &c. of such other club or society—maintaining correspondence with any member of any such society, as such, or supporting in anywise any such member—to two years' im- prisonment (maximum.) Forestalling—i. e. with intent to enhance the price of any article used for food, procuring any other person to forbear to bring the same to any market or fair, or to abstain for a long time from selling the same, purchasing the same on its way to any market or fair, or spreading any false rumour—to discretion- ary fine, and six months' imprisonment (maximum.) Ingrossing—i. e. obtaining possession, otherwise than by demise of land or tithe, of large quantities of any such merchandise, to prevent the same being brought to any market or fair, or to resell the same at an unreasonable price—to the hke penalty as last aforesaid. Regrating—t. c. obtaining possession of any such merchandise which shall be brought to any market or fair, and selling the same again in the same mar- ket, with such intent as aforesaid—to the like penalty.

Recusancy convict—i. e. being convicted of forbearing to resort to some church or chapel of the Establishment during divine service, except as to Quakers, Protestant Dissenters, or Roman Catholics, the latter having sub- scribed the Roman Catholic oath, who shall come to some congregation or as- sembly duly certified, registered, or allowed-12d. to the poor ot the parish, and

for every month during which the offender shall so forbear, 20/or, after a single conviction, without further proceedings, 20/. for every month, besides a most incredible list of disabilities, such as those of practising as a barrister, an attorney, physician, apothecary, &c.

"it is not essential to the offences contained in the last preceding article that a person should wholly or actually absent himself from the places of worship therein mentioned; it is sufficient if he misbehave himself in any such place, or miss either morning or evening prayer (I) or go away before the service is over" (U) Digest, c. iii. s. 2, art. 8. A Roman Catholic, convicted of the above offences, is a Popish recusant convict : he cannot bring any action, fulfil any public office, claim any estate by courtesy or in dower, travel five miles from home, keep arms, or come within -ten miles of London, &c. &c.

Forbearing to go to an Established Church, and inciting others to do the mime—imprisonment until the offender shall conform and hear divine service according to law. Being present at any other form of prayer than that appointed by the Book of Common Prayer—for the third offence, imprisonment for life. But it would be too long to enumerate all the harsh and mischievous provisions included under this one bead of the digest, that of offences against the Established Church, and which fill sixteen pages. What I have quoted is sufficient to show to what an extent the actual law of England dif- fers from the prevailing spirit and feelings of the nation. How many Church- men are there who perhaps every month of their life incur 20/. penalties for not attending either morning or evening service I How would courts of justice proceed, if some "sharp practitioner" in law or physic, for the sake of ejecting a rival, were to indict him for an offence of this kind ? and what if he could succeed in sending him to prison for life, for having been three times to a Dissenting chapel! It can hardly be denied, I think, that reform is imperatively called for. If it be so, then is this digest a most invaluable groundwork for future labours : if not, then the law as it stands is good, the digest is sufficient, and should be promulgated.

From the little that Sir JAMES GRAHAM appears to have known of what the Commissioners had done, it may be well supposed that he knows still less

of what they yet intended to do : and accordingly, on turning to their First Re-

port, I End that they proposed to digest the criminal law under the following beads,—first, The defining of offences and punishments; second, The preven- lion of offences by summary coercive means ; third, Proceedings against of- -fender otherwise than before Magistrates exercising summary jurisdiction ; fourth, Proceedings by attachment and other summary proceedings of the 'superior courts ; fifth, Summary proceedings before inferior Magistrates.

It will consequently appear, that the first part only of the work of the Com- mission is accomplished, viz. the Penal Digest, with the exception of penalties on summary conviction ; and that the whole of the Digest of Criminal Proce-

dure remains to be done. Yet it is to be inferred from Sir JAMES GRAHAM'S words, that the Commission itself is an end, and that the unfortunate "Act of Crimes and Punishments" is to remain unenacted, a lasting monument of

England's inability to proceed in the work of codification, when at last tardily begun. It would scarcely be fair as yet to advert to the merits or demerits of the work of the Criminal Law Commissioners. There is one collateral circum- stance, however, which strikes one as not reflecting much honour upon them.

The first Commission contains the names of" THOMAS STARRIE, HENRY BEL- MENDEN KER, WILLIAM WIGHTMAN, ANDREW Amos, and JOHN AUSTIN, Ems." ; DAVID JARDINE, Esq. being afterwards substituted for the last-named gentleman. By the conclusion of the Seventh Report, two names only remain, THOMAS STARRIE and HENRY BF.LLENDEN KER. Of their col- leagues, one bad taken to code-making on his own account at Malta; another had become a Member of Council in India; a third a Judge ; a fourth a Police Magistrate. Any one therefore of these soffices, it would seem, is preferable,

in these gentleman's estimation, to that of assisting in the formation of their country's code of laws, a work in which the First Consul of France took

pride in sharing. if any thing be as little creditable to this country as Sir Jamas GRAHAM'S ignorance, it is the indifferent* of his agents to the worth aid dignity of their own labours.

I remain, Sir, your obedient servant, J. M. L