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CHAPTER XII.

DEPARTMENTS OF THE PROFESSION.

II. CRIMINAL DEPARTMENT.

CROWN LAW-CRIMINAL LAW.

WHILE the great mitigation of the severity of our criminal law, during the last quarter of a century, bears splendid testimony to the humanity of the legislature, the sweeping alterations in the machinery and practical working of that law, not only effected during the same period, but at this moment under the consideration of Parliament, which contemplates a complete re-construction of the fabric of the criminal law, upon a plan of equal boldness and novelty,-render it exceedingly difficult to write upon the subject of this chapter, satisfactorily. Perhaps it may be said, that nearly two-thirds of the existing body of the criminal law, are the product of legislative enactment; which has made, during the course of several centuries, continually increasing inroads upon this section of the ancient common law of the land. Notwithstanding, however, this circumstance, let the student rest assured that he can never dispense with a sound historical knowledge of the common law respecting crimes and offences, if he desire to become thoroughly imbued with the genius and spirit of that law, and appreciate the

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nature of the great changes effected in it by acts of parliament, the evils and inconveniences intended to be redressed, and the mode in which such redress has been sought to be effected. He who is content with purchasing some practical hand-book, or treatise of criminal law as it is, and thence alone deriving his knowledge upon the subject, is a mere journeyman-a legal tradesmanutterly unworthy of being intrusted with business except of the most ordinary and inferior kind,-incompetent to sustain superior responsibilities, and encounter those important and difficult exigencies and emergencies, which often arise casually and unexpectedly out of criminal proceedings. From criminal law's affording the young barrister his earliest introduction to practice,-rushing, as he too frequently does, post-haste, and flimsily furnished with knowledge, from chambers to Sessions, he is apt to underrate the importance and difficulty of early acquiring an accurate knowledge of the principles of the criminal law and the result is often quickly apparent

he easily gets, perhaps, into the little circle of ordinary, matter-of-course cases at Sessions, and on circuit, and -never quits it. He, on the contrary, who, susceptible of superior impulses, and capable of higher aspirations, early applies himself with serious energy to the acquisition of deep and accurate knowledge of the past and present state of the criminal law, will not only feel, every day, fresh interest in the task, but be certain-cæteris paribus— of being able to avail himself, with signal advantage, of very many opportunities which will be entirely missed by his indolent, superficial, and incompetent rival. Nor let the young reader imagine that the great changes above adverted to, as being contemplated by Parliament, render

hopeless and nugatory the attempt to acquire this sort of knowledge, under the notion that the whole criminal law is in a state of transition and perpetual alteration. Even granting such to be the case, and likely to continue so for a long time to come-still, that fluctuating changing criminal law he will be called upon to practise; he cannot practise it unless he know it; and he cannot know it, unless he take the course suggested—which will render him comparatively independent of the consequences of change; for he will be master of those REASONS and PRINCIPLES which cannot alter, and will afford him an unerring and ready clue to those changes, by which others may be at once disheartened, confounded, and incapacitated from successful professional exertion. Even should that crowning change in the criminal law, which consists in its consolidation into one statute, be carried into effect, so as to render the future study and practice of the criminal law comparatively simple and accessible, our foregoing observations will nevertheless be of force equal to that which they possess during its existing state. Innumerable questions will be perpetually arising during the administration of the new system, however skilfully may be framed the contemplated code,-questions most frequently arising suddenly and in open court, and rendering necessary a reference to the pre-existing state of the law, whether common or statute, and the reasons on which the new system has proceeded. In addition to this, the new criminal code will necessarily leave untouched a large portion of the existing system, which for the purposes of explanation, analogy, and illustration, will require a continual reference to the works of Hale, Hawkins, Foster, East, Blackstone, and Russell.

There never yet occurred a state trial, or a criminal trial of importance, which did not illustrate the importance of the observations which we are offering, and exhibit the immense advantages attending an extensive, accurate, and ready knowledge of the grounds, and principles, and originals of the criminal law. The very last of these occasions supplies several striking instances, which only our limited space prevents our laying before the student. Let us now, however, proceed to a brief and general explanation of the existing criminal law.

The origin of our criminal law, must be looked for among the scanty records which we possess, of the jurisprudence of our Anglo-Saxon ancestors. Sufficient remain to demonstrate one interesting and valuable fact -that their punishments were entirely of a pecuniary nature; and so sensible were those stern and simple sons of freedom, even in those early times, of the danger of judicial discretion,* that they had a graduated scale of pecuniary compensation and punishment for all sorts of injury,† adjusted with the utmost exactness to the nature

* See 1 Reeve's Hist. p. 14.

+ The following curious passage occurs in Mr. Turner's History of the Anglo-Saxons, vol. ii. App. iii. chap. ii. p. 515-6 [ed. 1839]. "The Saxon legislators were particularly anxious to distinguish between the different wounds to which the body is liable, and which, from their laws, we may infer that they frequently suffered. In their most ancient laws these were the punishments:

"The loss of an eye, or a leg, appears to have been considered as the most aggravated injury which could arise from an assault, and was therefore punished by the highest fine, of 50 shillings.

"To be made lame, was the next most considerable offence; and the compensation for it was 30 shillings.

of the injury, the circumstances under which it was committed, and the rank and property of the party injured. This notion of compensation, observes Mr. Reeves, runs

"For a wound which caused deafness, 25 shillings.

"To lame the shoulder, divide the chine-bone, cut off the thumb, pierce the diaphragm, or tear off the hair, and fracture the skull, was each punished by a fine of 20 shillings.

"For breaking the thigh, cutting off the ears, wounding the eye or mouth, wounding the diaphragm, or injuring the teeth so as to affect the speech, was exacted 12 shillings.

"For cutting off the little finger, 11 shillings.

"For cutting off the great toe, or for tearing off the hair entirely, 10 shillings.

For piercing the nose, 9 shillings.

"For cutting off the forefinger, 8 shillings.

"For cutting off the gold-finger, for every wound in the thigh, for wounding the ear, for piercing both cheeks, for cutting either nostril, for each of the front teeth, for breaking the jaw-bone, for breaking an arm,

6 shillings.

"For seizing the hair, so as to hurt the bone; for the loss of either of the eye-teeth, or of the middle finger, 4 shillings.

"For pulling the hair, so that the bone became visible; for piercing the ear or one cheek; for cutting off the thumb-nail; for the first double-tooth; for wounding the nose with the fist; for wounding the elbow; for breaking a rib; or for wounding the vertebræ, 3 shillings.

"For every nail (probably of the fingers), and for every tooth beyond the first double tooth, 1 shilling.

"For seizing the hair, 50 scættas. [A scatta, says Mr. Turner, was about the twentieth part of a shilling.]

"For the nail of the great toe, 30 scættas.

"For every other nail, 10 scættas.

"To judge of this scale of compensations by modern experience, there seems to be a gross disproportion, not only between the injury and the compensation, in many instances, but also between the different classes of compensation. Six shillings is a very inconsiderable recompense for the pain and confinement that follow an arm, or a jaw-bone, broke ; and it seems absurd to rank in punishment with these serious injuries, the loss of a front tooth. To value the thumb at a higher price than the fingers, is reasonable; but to estimate the little finger at 11 shillings, the great toe at 10 shillings, the fore-finger at 8 shillings, the ring-finger at 6 shillings, and the middlefinger at 4 shillings, seems a very capricious distribution of recompense.

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