Of the confusion and intricacy of many of the laws affecting crime, arising from the inconsiderate manner in which they were originally framed, generally to meet particular cases, and the equal rashness with which they had subsequently been qualified or altered, so as to meet new emergencies, Mr. Peel gave some striking instances;-and a multitude of others might readily be gathered from the learned and useful works of Messrs. Russell and Starkie. There were not less than ninety-two statutes relating to the single crime of theft, from the Carta de Foresta in the reign of Henry III. to the 6th of George IV.; forty-two statutes relating to malicious injuries to property; and twenty statutes relating to stealing trees and timber. One of the most remarkable instances of confusion and intricacy was in the laws relating to the common crime of receiving stolen goods; and herein, in our opinion, one of Mr. Peel's most successful simplifications has been effected. There were twelve statutes on this subject, passed on the spur of particular occasions, and made to meet particular offences found to be prevalent ;-in short, a sort of race appears to have been kept up between the felons and the legislature, in which we must say the breakers of the law generally showed rather more dexterity than its makers. Thus one statute made it felony to receive stolen lead, iron, copper, and bell metal; another statute applied to pewter; a third, to jewels and watches; a fourth, to all goods and chattels; and a fifth to bills, bonds, and securities. As to the metal statute (29 Geo. II. c. 30.) there were doubts whether it related merely to the materials in their raw state, or whether it extended to wrought goods: and as it did not mention pewter, the felons soon found that they might receive stolen pewter-pots with perfect impunity-to exclude them from which profitable avocation the pewter statute (21 Geo. III. c. 30.) was passed. Then, the jewel and watch statute, by a clerical error, omitted in one part of the law the essential words watch or watches;' so that when Esther Moses received, in 1783, Mr. Drummond's stolen watch, chain, and seals, her counsel argued that it was lawful to receive a stolen watch, chain, and seals, since there were no express words applying to them, and they did not fall within the words 'jewels, gold, and silver plate.' However, the cornelian seal being clearly a jewel, though it was doubtful whether a gold watch and chain were gold plate, we believe Mrs. Moses was, with difficulty, shipped for Port Jackson. But the confusion was not merely as to the kind of property, the receiving whereof was punishable; there were moreover endless subtleties and distinctions as to the degree of the offence and the mode of prosecution and trial. At common law the bare receiving the

goods

goods stolen was no felony, but a misdemeanor. Then a statute of William made the receiver an accessary after the fact to the felonious theft ;-but then the accessary could not be tried for the felony unless the thief was convicted; nor for the misdemeanor, because it was merged in the felony;—and besides, if it happened to be a petty larceny, in petty larcenies there could be no accessary, all being principals. Accordingly the receiver used to employ the thief, and contrive to get him out of the way, and then quietly enjoy the stolen goods and laugh at the defective law. Then the legislature, by another law of Queen Anne, in order to be even with the receivers, made the offence of receiving, a misdemeanor punishable by fine and imprisonment, though the thief were not previously convicted. But the renowned Jonathan Wild, Proteuslike, evaded the nodus,' when indicted for a misdemeanor in receiving, by showing that the thief had before been tried and hanged, and that the statutes made receiving a misdemeanor only when the principal felon could not be taken and convicted. This loop-hole was partially closed by subsequent acts, but still their specific enumerations of goods left many cases unprovided for. Then it was thought desirable to make receiving triable as a felony, whether the thief could be taken or not; but the desire miscarried, and the statute of 3 Geo. IV. c. 24. s. 3. passed for that express object, was declared by the judges to be so loosely worded, that no indictment could be framed on it. These are only a portion of the subtleties and intricacies attending the law on the simple and frequent offence of receiving stolen goods, which Mr. Peel has, successfully, swept from the statute book. This he has effected by a simple and philosophical enactment of about ten lines, providing that whenever the offence of stealing or taking the article, whatever it may be, is a felony, the receiver receiving it knowingly shall be guilty of felony: where the offence of taking is a misdemeanor, the receiver shall incur the like guilt of misdemeanor: -that he may be tried either as an accessary, or for a substantive felony and this whether the principal felon shall have been convicted or not, or shall be amenable to justice or not—and whether the stealing amount to felony at common law, or by virtue of that act; and all the niceties as to the county where he is to be indicted are removed by providing that he may be tried and punished in any county or place where he shall have had the property, or in which the principal felon may legally be tried. A more judicious melting down of complex, cumbrous, and rusty mechanism cannot be conceived, and the reduction in size is, in its way, scarcely less valuable than the simplification in principle. The new provision of 7 and 8 Geo. IV. c. 29. ss. 54, 55, 56, embodying and amending the former twelve acts, and comprizing

the

the whole law on the offence of receiving stolen goods, is comprized in three short sections.

Similar anomalies and mischiefs arising from the same cause, —of partial and hasty legislation to meet particular cases, without reference to any general principle-are without end in the statute book; producing the double evil of length and multitude of sta→ tutes, and of defects and omissions never discovered-till new offences occur, and pass unpunished for want of a general provi→ sion to meet them. Thus, when it was found a common offence for lodgers to steal plate and furniture from the lodgings they hired, a clause was passed in 7 Will. & Mary, c. 9. to meet the particular case; but instead of being framed to meet other analogous cases, it was confined strictly to stealing from ' lodgings;' and, accordingly, when Charles Palmer was charged with stealing plate from a ready-furnished house rented by him at Brighthelmstone, he escaped-because it was found that the words of the statute did not apply, and that the offence could not be punished as a common-law larceny, since the offender had the lawful possession of the house and goods. Mr. Peel has remedied the defect by a general clause, and this is extended to fixtures as well as goods, which were not included in the former law. Again, what the law calls choses in action, that is, bills, notes, bonds, being of no intrinsic value, could not be the subjects of larceny at common law; though certainly there was no great wisdom in allowing an offender who had stolen a thing to defend himself on the ground that what he had thought worth stealing was of no intrinsic value, or to urge in grave men's hearing that a security which represented and produced money possessed no legal worth. This inconvenience was remedied by statutes making it criminal to steal certain specific kinds of securities; but still it was found that securities in foreign funds, &c., had been omitted, and that it was not punishable to steal them. Mr. Peel has provided for this omitted species of security, (now become so common,) and to prevent difficulties in the denomination and description of the instruments, has provided that all the class may be described by the terms valuable security.'

The old legal doctrines as to the character of landed property introduced many absurd and mischievous niceties into our criminal law. To lay down that it should be no felony to steal lands (viz., to purloin a manor, or to pocket a farm) was harmless enough, though perhaps superfluous; but when this doctrine was extended to goods and chattels fixed to the freehold, and severed by the thief, it seems to have been a quibble worthy only of Counsellor Botherum to say the thief should not be punished for stealing a door, or lead, or trees, or corn, because, though he had by his

own

own hand destroyed their character of fixedness, still the law-as if for the object of letting him escape-presumed them to be immoveables, and at least to savour of the realty.' This perverse fiction was actually carried to the length that titledeeds in a box might be taken with impunity, because they 'concerned the realty. Considering that such a theft may occasion the most serious mischief to the owner, we think Mr. Peel has wisely made it a misdemeanor, punishable by transportation for seven years. Another absurdity of a similar kind was in the case of animals feræ naturæ. There can be but one reason for the law not recognizing a property in such animals-viz. the physical fact of their remaining in a wild and unappropriated condition. But when this ceases,—when the animals, whatever they are, become domitæ naturæ, there can be no reason for not regarding them like other property; and to a certain extent the courts felt compelled so to do but then they capriciously extended protection only to certain animals which they chose to consider as exclusively valuable, -for example, horses, and such as furnished food. Accordingly, all birds, beasts, &c., kept for pleasure and curiosity—all His Majesty's menagerie, the Giraffe included— though of higher value in money than half the animals used for food, might be stolen or injured with impunity, the law absurdly refusing to consider as property creatures which cost the owner a high price, because Lord Coke had ranked them as feræ naturæ. The following passage from his lordship's renowned Case of Swans' will show the subtleties of the law on this matter. ‘But ' when a man hath savage beasts ratione privilegii, as by reason of ' a park, warren, &c., he hath not any property in the deer, or 'conies, or pheasants, or partridges; and therefore in an action, "Quare parcum, warrennum, &c. fregit et intravit et tres damas, lepores, cuniculos, phasianos, perdices cepit et asportavit, he 'shall not say suos, for he hath no property in them, but they do belong to him ratione privilegii for his game and pleasure, &c., nor can felony be committed of them,' &c. Dog-stealing was prohibited only in the reign of George the Third. Mr. Peel has extended protection to all beasts and birds kept in a state of confinement, and made the offence of stealing any of them which are not subjects of larceny at common law, punishable by a penalty of 201., in addition to the animal's value, recoverable summarily before a justice.

The laws respecting the trial of principals and accessaries were previously very faulty, and gave occasion not unfrequently to the escape of heinous offenders. In ancient times, indeed, the actual attainder (not merely the conviction) of the principal was necessary before the accessary could be proceeded against: but attain

der

der did not follow on all kinds of conviction, as, for instance, where the party stood mute of malice, or refused to answer, or challenged more than the legal number of jurors-here he was indeed punished by statute, but there was no attainder, and, consequently, any accessary to the crime escaped. Accordingly, Weston, the principal actor in the detestable murder of Sir Thomas Overbury, (as Sir M. Hale relates,) for a long time could not be prevailed upon to plead, in order that the Earl and Countess of Somerset, his hirers in the bloody scheme, might escape punishment. This absurdity was removed by a statute of Queen Anne-but others remained. The distinction itself between accessaries before the fact and principal offenders, that is, between the counsellor, or procurer, or payer of a thief, and the thief himself, seems to rest on no very solid foundation; and this the law, indeed, appears to admit, since it is only in felonies that this artificial classsification is recognised; while in treason, (the highest of legal offences,) and in trespasses and misdemeanors, (the lowest,) there is no such distinction of characters, and all concerned are principal offenders. Why the hirer of a burglar should be only an accessary before the fact, while the hirer of a Regicide is a principal Regicide, and the hirer of a swindler an actual swindler, it is difficult to state on any satisfactory grounds. But the theoretical incongruity produced practical evil. From the offence of the accessary being considered subordinate*, and depending entirely on that of the principal, the accessary could not be punished unless his principal was amenable to justice; though it frequently happened that there might be conclusive evidence of the counselling, or planning, or paying, by the accessary, when the facts of the crime itself might not be capable of conclusive proof against the principal, or when, from other causes, he might not be amenable to justice. This was not all. It would naturally be supposed that, when the principal was convicted by judge and jury, his conviction would be conclusive against the accessary, so far as to

*There were, indeed, sometimes cases, in old times, when the accessary appears to have been principal in the punishment, though accessary in the crime; as, for instance, in the Year Book, 18 Edward IV. 9 B., where the principal being outlawed, the accessary pleaded to the indictment, and was found guilty and hanged, and then the principal reversed the outlawry, and was tried on the indictment, and found not guilty ; and yet,' says the book, 'it cannot be contended that the accessary was guilty, inasmuch as the principal was acquitted.' However, notwithstanding the impossibility of such a desirable intendment, the proceeding appears to have been judicially approved, for in the 2d Richard III. 21 B., where an outlawry was prosecuted against an accessary for this, that the principal had been outlawed on an appeal, it was objected by counsel that there was error in the principal's outlawry, and, therefore, the accessary ought not to be put to answer thereupon. Fairfax, Justice-Although this which you speak of were error, (but it seems to me that it is not) yet the accessary shall be put to answer, car il n'est inconvenient, that the accessary shall be hanged, and the principal acquitted.'-See 5 Barn, and Cres. Rep. 546.

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