THE LAW MAGAZINE. ART. I.-FOURTH CRIMINAL LAW REPORT. Fourth Report of Her Majesty's Commissioners on Criminal Law, dated the 8th Day of March 1839; presented to both Houses of Parliament by command of her Majesty. IN conformity with the directions issued during the reign of his late majesty, requiring the Commissioners " to proceed in forming a Digest of the Criminal Law, as well written as unwritten, into one statute, with such partial alterations as might be considered by them to be necessary or expedient for more simply and completely defining crimes and punishments, and for the more effectual administration of criminal justice," we have before us the above-named Report. As we propose to make this the subject of a careful examination, it is satisfactory to be able to state at the outset, that a much more pleasing and profitable task awaits us than was our lot in reviewing for our twenty-seventh Number the First Report on Criminal Law. In that we found little which we did not feel compelled to censure, in this we find much to praise; and as we ventured to pronounce that deficient both in reasoning and information, so are we obliged to acknowledge this replete with both those qualities, and calculated to be useful and instructive to the legislature. The present Report indeed, treating mainly of the same topics as the first, often contains its best refutation, apart from any strictures of ourselves or others. On many most material points the two express totally different opinions, a few of which we shall notice incidentally; and further we are gratified to observe, that as the later opinions are those we generally desire to hold by, so are they in some instances identical with those put forward in our former Review. The present Report however, as might fairly be anticipated from a task of so much difficulty, is not without its faults, and whilst acknowledging the general excellence of its observations and doctrines, we must say that there is not unfrequently a want of logical arrangement and of perspicuous expression likely to detract a good deal from its general utility. This is the more to be complained of, because the Commissioners, as regards the latter fault at least, set out by saying, "We have studiously endeavoured to express the definition of crimes, and the rules connected with them, in the most simple and intelligible language;" and again, " Elegance of diction must be regarded as a matter of inferior importance in the declaration of abstract propositions and rules; and we have not hesitated to use plain and even homely language in our articles where a neater construction of the sentences, and more refined expressions, would not have contained so effectually the meaning of the law." The reader will by and by have some opportunities of judging how far this promise has been kept. This Report consists principally of a dissertation on the nature and classification of crimes; of a short anticipatory notice of the amendments hereafter to be proposed in punishments; of an essay and digest relating to the law of " offences against the person," and of the same relating to the law of" criminal violations of the right of property;" besides an appendix containing the whole of the statute law of crimes now in force, arranged according to the scale of punishment. We propose to give a brief account of the most important subjects discussed in each of these sections, with such observations as occur to us; and we shall venture, in so doing, sometimes to point out two sorts of imperfection with which it seems to us that the Report is chargeable, first where the Commissioners propose to introduce novelties and alterations in the law without sufficient cause, and, secondly, where they leave unaltered things not essential features of the law, yet easily and pro perly alterable. In deprecation of any censure on the latter account they say indeed, "From this statement of the authority under which we now act, it will be obvious that it does not extend to the construction of a new Criminal Code, but is limited to the reduction and consolidation of the existing law of England, as well written as unwritten, concerning crimes; for although we are authorized to make partial alterations, we apprehend that we should not be justified in making such changes in the essential features of the law as would alter its nature and character. We have therefore confined our attention chiefly to a reduction of the existing law by more simply and completely defining crimes and punishments, and have only in a few extreme cases ventured to remove positive and apparent inconsistencies in principle. Where defects have occurred to us in the prosecution of our task which involved more extensive changes, we have noticed them in the Prefatory Remarks to the several classes of crimes, or in the Notes to the Digest, in order that, if it be thought expedient to remove them, the attention of the legislature may be directed to that object. It will be readily understood that the declaration of an existing law, to which our authority is limited, is an undertaking of a very different nature and extent from the composition of a new system. In the formation of a new system the several rules and definitions might be expressed in uniform language, and the several classes of crime might be so arranged as always to bear a just proportion to each other and to ensure the complete harmony of the whole; but in the reduction of the common and statute law of England, we have been compelled, in order to preserve its identity and character, to retain much that a strict regard to principle and propriety of language would have induced us to reject." This is a far more temperate and self-denying tone than that prevailing through the First Report, the authors of which seemed to consider themselves called upon to create rather than to digest, to emulate Napoleon more than Comyn; but as the Commissioners are empowered to introduce “such partial alterations in the Criminal Law as may be considered by them necessary and expedient," we may animadvert on omissions of this sort, if such there be, without unfairness. The Report commences by pointing out some of the more considerable difficulties which necessarily impede the framing of a good Digest even for Criminal Law. Among these one is indicated which, if we mistake not, has escaped the observation of most advocates for the codification of the law of crimes; and as it is very ably stated here, we extract it, though somewhat lengthy. "It is in the first place material to advert generally to the relation which the criminal branch of the law bears to the whole system. Every system of municipal law consists necessarily of two distinct parts, which may be distinguished as substantive and adjective laws. The former comprehends the definition of civil rights and obligations, while it is the office of the latter to prevent the occurrence of certain grave infractions of such rights and obligations. And one mode of prevention, namely, the infliction of punishment on those who offend, in order, by example, to deter others from offending, constitutes the great principle, on which the law respecting crimes and punishments is founded. The legitimate objects therefore of penal legislation are the selection of those violations of right, which are sufficiently dangerous to the good order of society, to justify, and require the infliction of punishment to repress them, and the adaptation of the degree of punishment to the purpose of repressing such violations. "This consideration is an important one, as it limits the subjects of penal legislation to violations of such rights and obligations, as are presumed to be already defined in another department of the law. It may, for instance, be proper to punish one who, being under a legal obligation to repair a public bridge, by reason of his tenure of particular lands, has omitted to do so; but to define, under what circumstances one who holds lands shall be bound to repair a bridge, does not properly fall within the province of penal legislation. It is a question of substantive obligation to be decided by the laws which concern the tenure of land. Were any such obligation to be announced or enacted by means of a penal law, the latter would no longer be merely adjective or accessary to the enforcement of the substantive law, but would form part of that law. The definition of crimes, therefore, does not in any case involve the necessity for defining de novo substantive rights; yet as |