are called in question; but the matter assumes a very different complexion when we are considering the interest, not of the Judge, but of the suitor. There is a provoking old maxim even of the common law, that misera est servitus ubi jus vagum aut • incognitum ; and a man must be endowed with more than ordinary powers of sophistry, who can satisfactorily maintain that a rule capable of flexible application does not fall within the principle' of that maxim. Why, the flexibility of the common law, which is put forward by the Judges as the main argument in opposition to the Code, has all along been regarded by law reformers as the keystone on which the utility of a Code rests. They contend-and most justly-that the rules of the common law are vague and indeterminate; that the reported judgments and the text books of authority contain very few principles; that those principles are often contradictory; that the text writers differ most materially from each other as to what the law is; that many of the decisions of the Judges are based on subtle, useless, fluctuating, or unintelligible distinctions, while others cannot be referred to any principle at all; that the constructive expansion or contraction of rules to meet the supposed exigencies of society is alike dangerous to liberty and subversive of good government; and that it is a grievous evil when, in consequence of the flexibility of the legal principle, the magistrate does not know what law he is bound to administer, or the subject what law he is bound to obey.

The next objection raised by the Judges to the proposed Code rests on the assumption that the Bill submitted to them is so full of inaccuracies and blunders, that if it were to pass in its present shape, the due administration of justice would be seriously compromised. Humorous comments are made upon its clauses, and every variety of criticism, from grave to gay, from lively 'to severe,' is brought to bear upon the subject. The most weighty questions of construction, the most trivial questions of grammar, are alternately discussed. Satire, sarcasm, irony, and something akin to petulance, each play their several parts; and almost the only weapons that are sparingly used are accurate facts and logical reasoning. One section is gravely condemned because it introduces a new mode of expression, beginning with "the impersonal" It shall be rape, &c." Fault is next found with the words 'criminal agency and participation,' first, because participation, without the adjunct criminal, is senseless,'

*It was observed in the debates on this matter that the maxim of the Judges seemed to be 'misera est servitus (judicum) ubi jus certæTM et cognitum.

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and next, because even with it, 'the reader may ask "What ""does criminal participation mean?" Nay, the very title to the Bill does not escape censure. One reads (says Sir T. N. Talfourd), An Act to correct and amend the criminal law of England, so far as relates,' and pausing at the third line, asks 'what relates?' Will the framers of the Bill show their 'fitness to legislate for a people by leaving a verb with nothing 'to govern it?' The learned critic supplies it,' and proceeds, as it relates.' What renders this last criticism (which, by the way, is wholly erroneous) the more amusing is, that the very form of speech which has so shocked the grammatical taste of the learned Judge, is to be found in the letter of the Lord Chancellor to which he is replying. I wish to know,' says Lord Cranworth, whether the Judges consider that "the ""bringing the whole criminal law, so far as relates to offences, ""into one Statute," would be a beneficial measure.'

Passing on now to the more serious charges against the Bill, we find by the aid of Messrs. Greaves and Lonsdale's temperate and useful commentary, that they are almost, without exception, either founded on errors which the Judges have committed from want of paying sufficient attention to the different clauses, or that they are charges which can only be brought against the Bill on the ground that it too accurately embodies the law as it at present exists. Mr. Baron Alderson furnishes a striking example of the former class of objections, when he puts the following case: Suppose a person having received provocation from J. S., sufficient to make the killing, which would be wilful, only manslaughter, kills B. by accident, who has given no provocation, it may be difficult to say what, under this act, is his crime.' We confess that we cannot discover any difficulty when we read in section 60 (which the learned Baron appears to have passed over), that homicide shall be manslaughter, although the offender, by mistake or accident, kill not the person who offered the provocation, but some other 'person, provided that if the person who offered the provocation had been killed, such homicide would have been manslaughter within the meaning of the last preceding section.' Another learned Judge commits a similar oversight, when he supposes a person wilfully to leave his child exposed to cold, which 'causes its death,' and then asks whether he is to be deemed to have killed the child; and if so, under which of the sections from 51 to 55?' The answer is perfectly plain. He is not to be deemed to have killed the child under any one of those sections, but he is to be deemed to have killed it under section 50, which expressly enacts, that it shall be homicide' wherever

any person shall by any means or in any manner whatsoever 'cause the death of another person.'

We can only refer to one more error, but that is a sufficiently remarkable instance, as no less than three Judges have fallen into it. Unless I am greatly mistaken,' says Lord Chief Justice Jervis, if a man knock another down, doing him no bodily harm, he will not, after the passing of this act, be liable to prosecution.'-Mr. Baron Parke observes, if a man ' attacked another suddenly without any previous threat, and struck him down, it is at least doubtful whether he could be punished. Section 133 does not include in express terms a battery, and there is no section, I believe, that does.'-Mr. Justice Wightman adds, 'that the definition of an assault given in section 133, does not include in its terms the case of an 'actual striking or beating.' It would, indeed, be strange if it did; for an assault in law is a mere attempt or offer to commit a battery, and nothing more. The fact is, that all these eminent men have forgotten the legal distinction between an assault and a battery, and have entirely overlooked section 127 of the Bill, which applies to any person who shall maliciously cause any bodily harm, or do any violence to the person of another,' and which, therefore, expressly includes the very cases put by them.

In illustration of the second class of objections,-namely, those which, though levelled at the Bill, are in reality applicable to the law in its present state, we could, if necessary, cite a whole cloud of examples. One or two instances must, however, suffice; and we know not that we could select any more appropriate than those furnished by Mr. Justice Erle. That learned Judge finds fault with the sections relating to homicide, and he asks with evident dissatisfaction, whether the sheriff of a 'wrong county, who executes a capital sentence,' or, a person 'who kills an invading enemy, not in battle, is guilty of 'murder?' We fear that these questions must be answered in the affirmative; but if Sir William Erle will turn to the authoritative treatise of Lord Hale, he will find at pages 433 and 497 of the 1st volume, that the defects to which he has alluded have not, as he seems to imagine, been introduced as novelties into the Code, but that they form part and parcel of the existing common law. So, when Mr. Justice Wightman and Mr. Justice Cresswell point out, as the curious result of sections 107 and 118, that, although a man may be transported for life for causing gunpowder to explode with intent to do grievous bodily harm, he can only be transported for seven years if he attempts to murder by similar means,-they, no doubt, draw

attention to a very absurd inconsistency. They are, however, obviously ignorant of the fact, that it is one which obtains in the present law; for while the former crime is a statutable offence by virtue of section 4 of the Act of 9 & 10 Vict. c. 25, the latter is a mere common law misdemeanor punishable by fine and imprisonment.

We have been the more anxious to cite this last example, because, to our minds, it furnishes one of the most cogent arguments in favour of a Code. Had it not been for the Digest, the inconsistency complained of might have remained unnoticed for any conceivable length of time; but by aid of that Digest it has speedily been brought to light. From the consolidation of the criminal law,' says an able writer, the public cannot fail to 'reap this great advantage, that the Digest will enable the judi'cious legislator, with comparatively little labour, to detect the 'anomalies and errors of the existing system, and it will thus 'assist him in suggesting from time to time such alterations as 'may constitute real, practical, consistent amendments.'

In commenting on the letters of the Judges, we have been compelled to deal with the 'bulk' of the objections 'by sample.' Enough, however, has, we trust, been said to put the legislature and the country upon their guard, lest they should be misled into the foolish error of assuming that the arguments of wise men must inevitably be wise. Many thousands of pounds have been lavished on the work of digesting the criminal law; and after twenty years of anxious and intense labour, that great undertaking has at length been brought almost to completion. Is it wise, then, to forego, at the last moment, all the incalculable benefits which the public would derive from the Code; not because it is shown to be impracticable, still less because sound law reformers entertain any doubts as to its expediency, but simply because fourteen not wholly disinterested witnesses have borne testimony against its merit, and have founded their objections on a misunderstanding of the facts, and a misinterpretation of the law?

As we have purposely avoided loading these pages with more than a sample of the commodity we have had to deal with, so we affirm that the bulk answers, generally speaking, to the sample. Indeed, there are some mistakes and oversights so very glaring, that we could not have fairly selected them as instances. Thus Mr. Justice Talfourd treats with the utmost ridicule a definition of 'wounds,' which he says must be intended to anticipate some future discovery in science,' and which yet is supported by a decided case of late occurrence, cited by Messrs. Greaves and Lonsdale (Reg. v. Smith, 8 C. &

P. 173.), and he complains at great length legally of a new term introduced into criminal law-excuse; and grammatically of making the act done excuse, and not the Court or the Crown; but Messrs. Greaves and Lonsdale cite four several chapters of Lord Hale, in which 'excuse' is the subject treated of, and the word is used exactly as the Digest uses it. But we admit that taking such specimens of hardly credible carelessness would be unfair to the body of the Judges' remarks.

We can well imagine the satisfaction with which Sir Samuel Romilly would have perused the opinions of these learned persons against Codification, in defence of which, in his last written production (the grace and ornament of our pages*), he had given an unanswerable statement of his reasons, the result of a whole life's deliberate reflection, and of his own large practical experience also- above all, when he found these Judges proclaiming in terms the inestimable blessing for ages enjoyed by this country of a rule flexible in its application; thus describing the common law as no rule at all.

In truth, the whole question lies in a narrow compass, though it is not often that we find it thus placed by the advocates of one side in a light which leaves no possibility of doubt that they must be in the wrong. The ruler requires his subjects to obey the law, and denounces the severest penalties against an infraction of it. The subject asks what law he is to obey, and professes his willingness to conform as soon as he knows it; but he desires to be informed what is required of him before he acts, in order that he may comply. "No, indeed," says the ruler, "you shall only know "it after you have acted, and when you come to be tried. "The Judge who is to sit upon your case will tell you what "the law is which you are alleged to have broken." "Then," says the subject, "I wish the Judge would let me know before"hand, that I may be able to shape my conduct accordingly." ""Beforehand?" rejoins the ruler. "How can that be? The Judge himself only knows it when he sees the facts of your ""case before him; and the law is so flexible in his hands, that "it varies from day to day, and from case to case. It is in ""reality only made when it is wanted for use; it may be altered, "and mended, and stretched, or contracted, to serve the purpose in hand, but it is only made when wanted."'

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If any fresh proof were required how unsafe the Judges are as guides in legislation, these answers furnish it in ample

* Edinburgh Review, November, 1817, Bentham's Papers on Codification.