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multiples, mixed together, is exhibited by a statute."* A judge might then with better effect enquire, Quo animo fecerit, in reference to the legal, rather than the moral properties of an action.
« The learned and humane observer on the ancient statutes has suggested that a reformation of the English law can never be effectually carried on without the assistance of able lawyers not members of the legislature. With such assistance it might perhaps be easy to frame separate declaratory statutes relative to each class of crimes, comprehending all the descriptions and de, grees of each crime, with their proportionate punishments, Every such declaratory statute should be attended by a supplemental bill, repealing all prior provisions relative to the class of crimes in that statute contained. It seems superfluous to point out the many collateral good effects which might arise froin this method of seeking the end proposed. The repeal of particular statutes without such preparatory caution will be found a mere palliative remedy, which may tend indeed to abate the symptoms of the disease, but from which a radical cure cannot be expected." +
I see with much satisfaction, that between the excellent writer above quoted I by Mr. Dagge, and myself, there is no very wide difference in principle. I wish, as Mr. Barrington does, men in parliament to have the assistance of lawyers who are not in parliament. They may bring equal abilities to the task, and perhaps in some cases they may be able to devote more time to it. But I think that the labours of both will be facilitated, and their
ás vague, indistinct, and unfit to regulate the measures of lawgivers in fixing the crime of murder. Mr. Bentham, with his usual acuteness, thus censures the same expression : “ It is not unfrequent to meet with the phrase malo animo, a phrase still more indeterminate, if possible, than any of the former” (dolus, dolus malus, culpa sine dolo, culpa lata, levis, levissima, &c.) “ It seems to have reference to intentionality, or to consciousness, or to the motive, or to the disposition, or to any two or more of these taken together, nobody can tell which; these being objects which seem to have never hitherto been properly distinguished and defined.”—Elements of Jurisprudence, p. 92.
* Vide Bentham, p. 328. + See Dagge, vol. iii. p. 78. | Mr. Barrington.
regulations improved by the farther assistance of studious persons whose talents have long been employed on the general science of jurisprudence, whose legal knowledge is accompanied by extensive reading in history, and by a spirit truly philosophical, and whose minds are wholly exempt from those prejudices which always arise more or less from professional pursuits, thoughts, and actions. It is plain that Mr. Barrington believed many amendments in our penal statutes to be necessary, and from the multiplicity and variety of the subjects which must be discussed by those who would reform them, I am led to think that a general repeal, followed up by a general re-enactment, would be more easy and more efficacious than a series of separate declaratory statutes. When the whole body of the code was under contemplation, it would be more practicable, not only according to the opinion of Covarravias, “to observe the rule of distributive justice in different species or degrees of the same crime, but to introduce the same measure of distributive justice between one crime and another."*
In opposition to these opinions, persons, I am aware, will not be wanting, who, like Cato the Censor, “ legem ullam omnino abrogari indignentur;" and to such persons I should reply in the words of Valerius, “ Quemadmodum ex jis legibus, quæ non in tempus aliquod, sed perpetuæ utilitatis causa, in æternum latæ sunt, nullum abrogari debere fateor, nisi quam aut usus coarguit, aut status aliquis reipublicæ inutilem fecit, sic quas tempora aliqua desiderarunt leges, mortales, ut ita dicam, et temporibus ipsis mutabiles esse video."t It were absurd to talk of danger from a general repeal of former statutes, when it is to be immediately succeeded by the enactment and promulgation of new ones.
“ There are certain aphorisms," says Dagge," which men of weak minds or interested views are always ready to apply, for want of solid reasons to support their objections. When any scheme of improvement is offered, hundreds will tell you that innovations are dangerous, for one who is capable of pointing out where the apprehended danger lies."
“ Should this maxim prevail in the extent to which some are
* Dagge, vol. i. p. 258.
+ Liv. lib. xxxiv. par. 6.
desirous to stretch it, our laws would become, like those of some Eastern nations we read of, immutable. But innovations are then only dangerous when they are not founded on reason and justice, and when they are not introduced at a proper time and with suitable caution."
“In truth we are apt to be swayed too much by political maxims and the pretended necessity of things; there are many principles in the administration of government inconsistent with right-reason and strict justice, which political casuists attempt to vindicate by the general plea of necessity, and by making subtle and extravagant distinctions between political and moral virtue, wbich have no real foundation in nature."
“The bulk of the people, from their indolence and incapacity, judge every model to be perfect to which they are accustomed, and think whatever is, is necessary to be done. They are enemies to innovations because they are too short-sighted to perceive the good which may result, or too inert to oppose the inconveniencies which may ensue from a change."*
But let us hear what are the sentiments of a writer who is far superior to Dagge in depth of research, and precision of reasoning, and from whose work, as it is now very scarce, I shall not apologize for the length of the following quotation.
“ It is wonderful how forward some have been to look upon it as a kind of presumption and ingratitude, and rebellion and cruelty, and I know not what besides, not to alledge only, nor to own, but to suffer any one so much as to imagine, that an old established law could in any respect be a fit object of condemnation. Whether it has been a kind of personification that has been the cause of this, as if the law were a living creature, or whether it has been the mechanical veneration for antiquity, or what other delusion of the fancy, I shall not here enquire. For my part I know not for what good reason it is that the merit of justifying a law when right should have been thought greater, than that of censuring it when wrong. Under a government of laws what is the motto of a good citizen ? To obey punctually, to censure freely.
“Thus much is certain; that a system that is never to be cen
* Vide Dagge's Considerations on Criminal Law, cap. iii. and ii. sured will never be improved ; that if nothing is ever to be found fault with, nothing will ever be mended; and that a resolution to justify every thing at any rate, and to disapprove of nothing, is a resolution which pursued in future must stand as an effectual bar to all the additional happiness we can ever hope for; pursued hitherto would have robbed us of that share of happiness which we enjoy already.
“ For is a disposition to find every thing as it should be,' less at variance with itself than with reason and utility? The common place arguments in which it vents itself justify not what is established in effect any more than they condemn it : since whatever now is establishment once was innovation."*
If a reflecting and benevolent foreigner were to examine our Statute Book, where Death is commissioned to keep the fatal key" of so many cells, and “ to shake a dreadful dart "t in so many directions, his soul would be wrung with anguish : and, unless he were told that common sense wages a perpetual war with positive institutions, and that the malefactors annually exe. cuted fall very short of the number aunually condemned, he would suspect that every accuser is a Lycurgus, every judge a Cassius, § and every legislator a Draco.|||
Tarda sunt, we read in Tacitus, quæ in commune expostulantur. The day of reformation among ourselves is, I am told, very distant. The pride of communities, like the pride of individuals, is wounded by the bare mention of their inconsistency, and their ingenuity supplies them abundantly with arguments from real mischiefs, when they are intent upon providing against such as are imaginary or exaggerated. The actual multiplication of penal statutes--the lapse of a century without the repeal of more than two or three, even under an enlightened government,
* Preface to Fragınent on Government, p. 14. + Milton.
f I mean the Athenian orator, who is called by Cicero, in Brutus, “accusator vehemens et molestus." See Dr. Taylor's Preface to Lycurgus.
Lucius Cassius, the Roman Prætor, “ cujus tribunal propter nimiaro severitatem scopulus reorum dicebatur.” See Val. Mas. lib. iii. cap. 7.
# Vide Gravina, vol. 1. p. 233. • Annal. lib. iv. par. 7. edit. Lipsic.
and among a public-spirited people-the prompt and courtly acquiescence of large bodies in every suggestion of dangers from quarters where professional experience is presumed to carry with it sound and dispassionate judgment—the stubborn prejudices of those who confound the right and the ability to administer laws with the numberless qualifications which are requsite to enact or to modify them-the languid sympathy of the higher orders with the lower upon the sight of evils which they are themselves under little or no temptation to incur-the unfeeling temper which is generated among all ranks by growing wealth and growing luxury--the systematic severity exercised against some classes of crimes, which though bearing a common name are accompanied by countless diversities of extenuating as well as aggravating circumstances-nay, the conscious superiority of a constitution which is daily and hourly recognized in its beneficial effects, and which reconciles our vanity and our indolence to the continuance of many concomitant abuses-these and other causes which it were invidious to enumerate, lead me to apprehend that in one race of glory this country will be outrun by some neighbouring states, where the recent mitigation of their punishments affords some compensation for their political thraldom.
Blackstone did not indiscriminately condemn the infliction of death; nor was he indifferent to the reputation of the English laws. But can we suppose that he had no view to the reform of those laws, and that he meant, not to hold up an example, but merely to state a fact, when he thus wrote, “Was the vast territory of all the Russias worse under the late Empress Elizabeth than under her more sanguinary predecessors? Is it now, under Catherine II. less civilized, less social, less secure ? we are assured that neither of these illustrious princesses have, throughout their whole administration inflicted the penalty of death ; and the latter has, upon full persuasion of its being useless, nay even pernicious, given orders for abolishing it entirely throughout her extensive dominions. But indeed were capital punishments proved by experience to be a sure and effectual remedy, that would not prove the necessity (upon which the justness and propriety depend) of inflicting them upon all occasions when other expedients fail. I fear this reasoning would extend a great deal too far.”*
* Book iv, chap. i.