AN ESSAY ON CRIMINAL JURISPRUDENCE, WITH THE DRAFT OF A NEW PENAL CODE; IN WHICH IT IS ATTEMPTED TO DEFINE CRIMES AND OFFENCES WITH CLEARNESS AND BREVITY; TO RENDER PENALTIES PROPORTIONATE AND CONSISTENT: AND TO PROMOTE A PURE, SPEEDY, AND CHEAP, BY J. T. BARBER BEAUMONT, Esq., F. A. S. ONE OF HIS MAJESTY'S JUSTICES OF THE PEACE FOR MIDDLESEX AND WESTMINSTER. LONDON: PREFACE. THE Essay on Criminal Jurisprudence attempted in the following pages, owes its origin to a plan which the Author, with some other persons, entertained a few years since, of promoting a settlement of English emigrants in South America. For this purpose, rules for conduct, and for protection against disorders were necessary. The English laws appeared to be any thing but an intelligible and easy guide on the occasion. The other codes of Europe were generally unsatisfactory, and even the French penal code; although a vast improvement in criminal jurisprudence was thought to be deficient in that systematic and luminous arrangement of which the subject was capable. The measures taken by government to facilitate the emigration of our unemployed and suffering countrymen, superseded the necessity of promoting the settlement in South America; but as the necessity of a revision of the English penal laws is acknowledged by all, this work has been pursued in the hope that it might throw some useful light on the subject. The author does not flatter himself that he has elicited a system of criminal law which is free from error. He is quite sure from the extensiveness of his task, that his propositions must fail to embrace several points of importance, and in other instances, that the rules offered are capable of a still more condensed, or of a clearer expression, but he believes that much of what will appear wanting on a first reading, will be found to be sufficiently provided for on a more careful perusal, and, that other expressions which at first seem redundant, will, on further acquaintance, be admitted to be necessary. He has bestowed more pains frequently in endeavouring to condense the meaning of a long expression into a few words, than would have been required to extend the description to the dimensions of a folio page. His attempt is now before the public, and he will deem himself well recompensed for the trouble be has taken, if the hints furnished shall stimulate abler minds to take up the subject, and shall lead to the establishment of that most important, but much neglected desideratum, a simple, clear, and equitable, system of Criminal Jurisprudence. AN ESSAY ON CRIMINAL JURISPRUDENCE. CHAPTER I. OBSERVATIONS ON THE DEFECTS OF THE PENAL LAWS OF ENGLAND. THE laws of England are grown into such an immeasurable chaos of wisdom, error, and verbosity, that the longest life, the best judgment, and the most retentive memory, devoted to their study, are insufficient to collect, digest, and retain the ponderous mass. Such is the declared opinion of the most eminent legal authorities, yet the law presumes that every man has knowledge of all the laws which govern him, a fiction which reason rejects as impossible. If, indeed, our penal laws proceeded upon a breach of the rules of moral duties to a consistent system of proportionate penalties, it might be presumed that the citizen alive to the one, would know how to estimate the other; but the fact is very much otherwise. Innocent, nay commendable acts, in some instances, incur penalties, and deep vice in others is free from legal censure. Considering, therefore, the inconvenient immensity and acknowledged imperfection of our laws, and also their pernicious effect upon the good order and happiness of society, there may be no very unpardonable presumption in relieving the subject from professional trammels, and treating it as a science subject to the investigations of plain sense, and capable of being restored to the principles of plain dealing. These principles indicate, that there is no better reason for enveloping rules of conduct in a peculiar and intricate verbage, which requires an apprenticeship to understand, than there was in former times to write laws in a language unintelligible to those who were to be guided by them; nor more sense or honesty in distending laws with needless distinctions and tautology of expression, than in mixing up (according to a practice of physic now happily exploded,) thirty or forty different nasty things, to make " a souveraine remedie." Truth has dispelled the mysteries of the Magi, the charmmonger, the relic-monger, and the soothsayer; may it also divest the law of our great country of the mystery and jargon under which it is now disguised, and exhibit it in its simple and unaffected shape, as the friend and assistant of morality, similar in form, feature, and proportion, although endowed with the air and authority of command. Mr. Evans, the learned compiler of the statutes, thus alludes to the propriety of a philosophical revision of the laws:-" It certainly is difficult to conceive upon what principles it should be assumed, that while every other science has been progressive, and has followed the natural course of observation and experience, in the correction of errors, and the extension of useful discovery, the sciences of legislation and jurisprudence should alone be considered as stationary or retrograde." The enlightened Dugald Stewart, in his "Elements of the Philosophy of the Human Mind," adds his testimony in favor of a simplified system of laws:-" Among the many circumstances favorable to human happiness in the present state of the world (he says), the most important, perhaps, is, that the same events which have contributed to loosen the foundations of the ancient fabrics of despotism, have made it practicable in a much greater degree than it ever was formerly, to reduce the principles of legislation to a science, and to anticipate the probable course of popular opinion. It is easy for the statesman to form to himself a distinct and steady idea of the ultimate objects at which a wise legislator ought to aim, and to foresee that modification of the social order to which human affairs have of themselves a tendency to approach, and therefore his practical sagacity and address are limited to the care of accomplishing the important ends which he has in view, as effectually and rapidly as is consistent with the quiet of individuals, and with the rights arising from actual establishments." "In order to lay a solid foundation for the science of politics, the first step ought to be to ascertain that form of society which is perfectly agreeable to nature and justice, and what are the principles of legislation necessary for main i taining it. Nor is the inquiry so difficult as might at first be apprehended, for it might be easily shewn that the greater part of the political disorders which exist among mankind, do not arise from a want of foresight in politicians which has rendered their laws too general, but from their having trusted too little to the operation of those simple institutions which nature and justice recommend, and, of consequence, that as society advances to its perfection, the number of laws may be expected fo DIMINISH instead of increasing, and the science of legislation to be gradually simplified." The great Lord Chancellor Bacon, in his History of Governments, thus deprecates the loquacity and prolixity with which the laws were drawn up even in his day; (what would he say to our modern laws; a paving act for example ?) "We at present (he says) treat of the obscurity which arises from their ill description, and approve not the loquacity and prolixity now used in drawing up the laws, which in no degree obtains what is intended, but rather the contrary; for whilst it endeavours to comprehend and express all particular cases in apposite and proper diction (as expressing greater certainty from thence) it raises numerous questions ABOUT TERMS, which render the true and real design of the law more difficult to come at, through a huddle of words. Upon the multiplication of penal laws Lord Bacon thus expresses himself:-"The prophet says, 'it shall rain snares upon them,' but there are no worse snares than the snares of laws, especially the penal, which growing excessive in number, and useless through time, prove not a lanthorn, The illustrious author proceeds, “But but nets to the feet." if laws heaped upon laws, shall swell to such a vast bulk, and labor under such confusion as render it expedient to treat them anew, and reduce them into one sound and serviceable corps, it becomes a work of the utmost importance, deserving to be deemed heroical; and let the authors of it be ranked among legislators, and the restorers of states and empires." This great man little thought that laws would continue to be heaped upon laws, until the present day, without any adequate effort being made to relieve the public from the monstrous pile, and out of the heterogeneous materials to form "one sound and serviceable corps.' There are now upwards of 750 ACTS of PARLIAMENT applicable to criminal law, besides nearly 400 which relate to proceedings before justices of the peace. These which are called Statute laws, it must be recollected, are only that part of the law which consists of alterations of, or additions to, the Common or |