LAW REFORM IN ENGLAND.

Globe, Volume XX, Issue 1385, 24 July 1878, Page 3

LAW REFORM IN ENGLAND.

["Spectator."] The Bill for tho Codification of the Criminal Law which the Attorney-General introduced on Tuesday is nothing less than a practical revolution. Had it come from the hands of any member of the Opposition, it would have provoked the comment, " See what these Radicals do! they will turn things upside down; they will vex and harrass classes, and recast institutions." It is, in fact, the most sweeping proposal of Law reform ever laid before the House of Commons in our generation, and it reminds one of the general abolition Bills which Bentham prepared for South-American Republics unfettered by respect for tho past. It contains some halfdozen large proposals, anyone of which would bo no inconsiderable instalment of reform ; and it is one of the strange signs of the time, that a truly revolutionary measure of this character should be submitted to the House of Commons by a Conservative Government without anybody expressing surprise. The Attorney-G-'eneral proposes to " make a clean sweep of all this rubbish," —and by "this rubbish "he explains that he means the most distinctive features of the Common Law. No one, however, professes surprise, and unless some Liberal has a friendly word to say on behalf of our old legal principles, they are likely to fare badly. We need not say to those who have followed tho movement in favor of Codification that the new Bill is a virtual recantation on the part of influential members of the Government. It includes uot merely Common Law, but also much, though not all, Statute Law ; and Lord Cairns has hitherto declared himself opposed to the expediency of attempting any such union. In his view, as expressed in 1874, "a codification of the Statute Law would be almost impossible. What we wanted was an expression of tho Unwritten or Common Law." This is not Sir Fitzjames

Stephen's opinion. It is probably not the opinion of most legal reformers of repute. It is not in accordance with the practice of nations which have adopted Codes. It it not what has been done in the now Jamaica Code ; and as it strikes us, it is not a course which has anything to recommend it, except the ease in execution incident to all things which are imperfect. The Lord Chancellor lias put aside his own opinion ; the Bill has been drawn in accordance with Sir Fitzjames Stephen's view. It is always found, when the Legislature addresses itself to the work of codifying the Law, that much of it is totally repugnant to the 6pirit of modern times; and, to take our criminal jurisprudence as an instance, there is no doubt, as Sir Fitzjames Stephen observes, that any digest or statement of the Law would contain "so much that is obsolete, so many needless technicalities and subtleties, so much that is clumsy, so many needlessly minute and irrational provisions, that if the Digest were enacted into a Code, it would be altogether unworthy of the time and the country." We find this fully recognised in the Government Bill, which proposes to make about a score of swoeping changes in the substance of our Criminal Law, and which will in fact leave scarcely a stone above a stone in many parts of the present structure. The distinction between felony and misdemeanor, already much impaired by legislation, but still partially preserved, is to bo abolished. This is going a long way. Austin, no timid reformer, confined himself to throwing out a query whether it was worth while to retain the distinction ; and in his first work on Criminal Law, Sir Fitzjames Stephen argued in favor of the maintenance, subject to certain changes, of the distinction, on the ground that it corresponded to certain real and important differences in the nature of crimes. The Government are moro revolutionary; no trace of the division will appear in the new Code. All the technical lore to be found in Bast and Hawkins about accessories before the fact or the actual offenders or principals will go ; the Attorney-General agrees with Sir Fitzjames Stephen in thinking the law as to this subject "altogether obsolete." The variety in regard to maximum punishments, now a means of tying the hands of the Judge, and preventing him from meting out punishment in accordance with the gravity of the offence, will be altered. We observe with satisfaction that the Government Bill proposes to abolish the use of that mischievous and much misunderstood term "malice;" the reasons which weighed with Mr R. S. Wright, the framer of the Jamaica Code, and induced him to describe the essential elements of criminality by a less ambiguous expression than "malice," have operated in framing the English Criminal Code. The Bill proposes to recast the whole law as to murder, abolishing that legal monstrosity, "constructive murder," and adopting from the draft of the Jamaica Code a definition of such "provocation" as will be regarded as extenuating circumstances. Perhaps the most chaotic portion of the English Criminal Law is the subject of crimes against the rights of property. The old notion in regard to theft and cognate offences, as embodied in the Common Law, was that there must be some wrong to possession. This has been altered, by legislation dealing with individual anomalies as they arose ; and the combined effect of legislation, cases, statutory exceptions to commonlaw rules, and exceptions to exceptions, with respect to theft, larceny by bailees, and embezzlement is, that even profound lawyers are hopelessly puzzled by the intricacies of the subject. All the refinements over which generations of lawyers have wrangled will be swept away, and it is proposed to make a simple and comprehensive enactment, which will include all cases of larceny, embezzlement, or obtaining money by false pretences. The Bill will also revolutionise procedure in criminal trials. All the subtleties and uncertainties springing from the law as to local venue—subtleties which, as the AttorneyGeneral observes, have benefitted no one except scoundrels, and which have been expelled from civil procedure, no one regretting them—will be swept away. Prisoners are to be allowed to make statements in the course of the trial, and they may be cross-examined on their statements. The right of appeal in criminal cases will be granted, on conditions which the AttorneyGeneral did not explain; and there may in certain circumstances be a reference of a case to the House of Lords. Indictments will no longer be rolls of parchment many yards long, of no use to any one except to the prisoner, who sometimes escapes just punishment through a technical defect in superfluous jargon; and they will be concise statements, which will enable any one at a glance to discern the real charge.