the existence of a substantive right or obligation is frequently assumed in the definition of a crime, and as in the course of judicial investigation the incidents and extent of such right or obligation often become material, any imperfection in the law by which they are constituted necessarily introduces a corresponding defect into the criminal definition or the administration of the penal law. For instance, on charges of homicide, or cutting and maiming in resistance to a lawful apprehension, the guilt of the offender may often depend entirely upon a nice and difficult question, belonging to the civil branch of the law, such as the technical regularity of civil process, or the precise duty of a minister of justice in its execution. In like manner, in ascertaining the penal responsibility of the offender in crimes of omission, an inquiry into the nature of the duty or liability, the breach of which forms the substance of the crime, is obviously essential. Thus in cases of homicide, where death has been occasioned by the omission to discharge the legal obligation imposed by some civil relation existing between the deceased and some other person, such as the supply of sufficient food in the case of parent and child, or master and apprentice, or the application of due skill and caution in the case of surgeon and patient, the particulars of the civil rights and liabilities of parties so circumstanced become absolutely essential to the determination of the criminal responsibility of the accused.

"It is clear therefore that a system of criminal law, into the administration of which nice distinctions belonging to any other branch of jurisprudence are sometimes necessarily imported, must partake of all the imperfections to which those distinctions themselves are liable; and consequently that if the law concerning civil rights and obligations be uncertain and indefinite, the criminal law (however accurately defined in general), must be uncertain and indefinite in its application in every case in which those distinctions become essential. From the absence of sufficient definitions of rights and obligations in our civil law, the examination of such rights and obligations has not unfrequently become the subject of embarrassing discussion in courts of criminal judicature; but the remedy for this evil must be sought in the improvement of the

civil branch of law, and cannot be comprehended within any scheme for digesting and amending the Criminal Law alone."

This remedy, we fear, will long be sought for in vain. The question of the practicability of defining such rights and obligations 'is in fact the question of general codification revived in another shape. We have already repeatedly given utterance to our opinions on this much controverted matter. But fortunately the objections are far weaker to a criminal than to a civil code, whilst the inducements are incomparably greater; and thus those who have been most forward to ridicule or to condemn the theory of general codification, have directed their criticism against civil, or have expressly excepted criminal legislation. Even Rossi, although he prefers the plan of special and individual statutes to that of a general digest of the Criminal Law, declares that in every point of view the question of a penal code is wholly foreign to that of codification in a general sense, and considers the creation of the former in some shape or other as a necessity admitting no alternative;1 although no one has more clearly perceived the difficulties arising from the variability of relative evil in different countries, and different states of society. We hold with him that a statutory declaration of crimes and their punishments is essential to the good administration of the penal laws in any state, and this without being insensible to the absurdity or danger of even criminal codification by men partially or wholly ignorant of the habits and feelings of the countries for which they legislate; of the fabrications of a Bentham for the Western, or of a Macaulay for the Eastern Indies. It is true that the most able statutory enunciation of the criminal law in a state must be but an imperfect and transitory good. Obscurities and contradictions must in course of time arise from contrary judicial interpretations; the spirit of humanity growing with the growth of civilization will require an alleviation of punishment; the increase or diminution of temptations to particular offences will necessitate an alteration of their relative position in the scale of criminality. There is no finality in legislation even respecting things so immutable as the nature of evil and of man.

1 Traité de Droit Pénal, 1. iv. c. 3.

But let us hear the Commissioners further on the limits, which they have thought it right to prescribe to themselves in the prosecution of their task.

"We are fully aware, as we have already intimated, that the attempt to describe all the minute variations and combinations of facts which compose crimes, with metaphysical exactness, is visionary and absurd; but we conceive it to be quite possible, by means of correct definitions and subsidiary rules, to give to written laws such an approximation to certainty, as may facilitate the practical administration of justice, and at all events introduce an improvement upon a system so vague and indefinite as the present common law of England respecting crimes and punishments. In order to remove the uncertainty introduced into our law by the various causes to which we have above alluded, we have carefully endeavoured to reconcile the definitions of common law crimes with the modern decisions, by which their nature and qualities have been ascertained; and by such definitions (including, of course, all supplementary rules) to ensure, as far as possible, the simple and concise expression of every thing essential to the constitution of each offence. Still, whatever pains may be taken to render a digest of the law perfect, much must necessarily be left to judicial interpretation. A digest or code does not undertake to decide, with certainty, every supposeable case; it establishes directory principles-it defines much that was before indefinite-it supplies imperfections, and removes inconsistencies-it effects upon system, and simultaneously with respect to the whole law, that which a variety of statutes has at different periods attempted to effect, with respect to particular parts of the law. But it can never supersede the necessity for judicial construction, which rightly understood, and applied within certain limits, is not only necessary but beneficial.

"In distributing crimes within their proper limits, and so defining their component parts as to promote the great ends of all penal laws, two opposite evils are to be avoided. If the predicaments of fact which constitute crimes are framed too largely, and if the same penal consequences are applied generally to an extensive class of criminal actions, a wide range of discretion in their application becomes necessary, in order

to avoid injustice in particular cases; and thus judicial discretion, the exercise of which, within defined limits, is not only salutary but necessary, is too largely substituted for legal certainty. In this state of things, the uncertainty of the penalty diminishes the fear of offending, and tends to confound the gradations of crime, which ought always to be plainly marked by corresponding gradations of punishment. If, on the other hand, the penal predicaments are too narrow, one of two inconveniences results; it is necessary either to multiply legal distinctions, the certain effect of which is the partial obstruction of justice, or to enlarge the boundaries of offences beyond their prescribed limits, by technical interpretations, and forced constructions. It is, however, a material object in defining crimes, to enlarge the terms of the definition to as ample a range of subject-matter as convenience and a due regard to the above consideration will permit, as by this means the multiplication of special provisions is avoided, and the law is rendered more simple, and therefore more easily applicable. For instance, the crime of theft embraces the removal of every species of property capable of being removed; and this generality, as to the subject-matter, supersedes the necessity of various express provisions for the protection of particular kinds of property from depredation."

In direct opposition to the suggestions of their former Report, the Commissioners intend to continue the present distribution of offences into the three classes, Treason, Felony, and Misdemeanor. "As we propose," so they go on to say, "to retain these general divisions, with certain changes and modifications, it is necessary to explain our views and reasons." But although they proceed to suggest many valuable improvements in the classification of crimes under those several heads, supposing them to be retained, we have searched these pages in vain for any argument or authority in support of the propriety of retaining them. As the Report contains a recommendation, in which we most heartily concur, to abolish for the future the incident peculiar to convictions of treason, the additions, namely, to the simple punishment of death; and to abolish, or at least to modify, the incident peculiar to convictions for felony, the forfeiture, namely, of the offender's property; and as modern humanity has assimilated the course of procedure

in all criminal trials, as far as the facilities for defence are concerned, we cannot perceive the utility of retaining a difference in name, which will be no longer indicative of any material difference in fact. At present the Commissioners admit that the distinction between felonies and misdemeanors is quite arbitrary, and affords no just line of division between a higher and a lower degree of criminality, and, although they propose to mitigate this evil by a better classification, it must still sometimes occur, from the peculiar facts of particular cases, that of two offences the more heinous will bear the lighter appellation, and escape accordingly, not only with the less share of punishment, but also, considering how mankind are led by names, with the less share of reprobation; a mischief serious in the eyes of those who consider it of the first importance, as we do, to make pure morality, penal legislation, and public feeling harmonize as entirely as the imperfection of human institutions will admit. Unless then, some positive arguments can be found for the maintenance of these unmeaning titles, on this account alone we see sufficient reason for abolishing them altogether.

Supposing the position established, that it is desirable on the whole, to maintain or introduce some arbitrary classification or other for crimes under distinct and several titles, we quite admit that the Commissioners will do well to retain the antique nomenclature. Neither the writings of criminal jurists, nor the systems in use by other countries, supply any arrangement more simple or more rational. The distinction between felony and misdemeanor is wise and innocuous, compared with that between crime and délit according to the Code Pénal of France, between Verbrechen and Vergehen according to the Strafgesetzbuch of Bavaria; in both of which the name of an offence depends upon the quantity of punishment assigned to it, and that quantity of punishment, upon matters often unconnected with the degree of guilt in the offender. Thus, by the Bavarian Code, theft is called Verbrechen or Vergehen, as the booty happens to be worth more or less than twenty-five florins.1 "Such a division of offences," observes Rossi of the French Code, indignantly and well, "is

1 Art. 215.