1

while section 8,1 which declares that members of certain banking copartnerships may be guilty of theft or embezzlement, in fraudulently appropriating the property of the copartnership, might, with great public advantage, be extended to all corporations, joint stock companies, and other societies, as well as to trustees. The case of Astley, who was charged the other day with stealing the plate of the Junior United Service Club, proved the necessity for such an extension.

Perhaps an article might also be introduced into the digest, visiting with mild castigation the present popular offence of umbrella stealing.

In the last chapter of the act, penalties are divided into forty-five classes, which are just three times the number proposed by the Commissioners in the fourth Report. Why this enlargement of the original plan has been adopted we know not, but we can see no benefit derivable from it. The first two classes relate to death, the next fifteen to transportation, the next twenty-four to imprisonment, and the last four to fines. Out of this number, nine classes enact absolute penalties, two fix one year as the minimum of imprisonment, and the remainder give a discretionary power of reducing the punishment to any extent.

The first class relates to the punishment of traitors, and enacts, that "the offender, if a male, shall be drawn on a hurdle to the place of execution, there hanged, and afterwards the head shall be severed from the body of such offender, and the body, divided into four quarters, to be disposed of as her Majesty shall think fit, &c."2

This is a barbarous and disgusting punishment, which can have no possible effect in deterring men from the commission of treasons, but only tends either to excite a dangerous sympathy towards the sufferer in the minds of the uneducated, or to deaden and brutalise their natural feelings. We trust that, ere long, this stigma of our law will be blotted out, and that the only difference between the punishment of the traitor and the murderer will be, that the former, in addition to the loss of life, shall forfeit all his property, real and personal, from the time of the commission of the crime for which he suffers. We are anxious that the law of forfeiture should still apply

to the traitor, because we think that the dread of this law might, in his case, have a most salutary effect. Treason, except that species which directly aims at the life of the sovereign, is seldom dangerous, unless men of rank and property join and lead the insurrection, and these are the very persons who would be most influenced by the fear of confiscation. Many an educated man, in times of popular excitement, might fearlessly risk his life in prosecuting some treasonable scheme, the moral guilt of which his enthusiasm refused to allow, who would pause in his career, nay, renounce the undertaking, if he knew that the consequences of failure would bring certain beggary on all those whom he most dearly cherished.

The 2d class is death; the 3d, transportation for life; the 4th, transportation for life or for any term not less than seven years. In the next four classes the maximum of punishment is the same as in the last class, but the minimum is reduced in the first to one year's imprisonment, while in the remaining three no minimum is stated, and the only difference between them is, that, in one, whipping is introduced in the case of male offenders; in another, this additional punishment is not allowed, and, in the last, fine at discretion is permitted as an alternative penalty. We are happy to find that the Commissioners, though, in accordance with the late criminal statutes, constrained to adopt this method of fixing no minimum of punishment, do not approve of the large discretion which it affords; indeed we are at a loss to conceive how any man, who has attentively considered the subject, can fail to perceive the evil consequences of such a system. To say nothing of the painful responsibility which it throws upon the judge, the cruelty and injustice which it occasions are infinite.

Could a table be prepared, showing, in opposite columns, the different punishments inflicted for precisely the same offences, by Mr. Baron Gurney and the late Mr. Justice Littledale, another sessions of parliament could not pass without the attention of the government being seriously directed to the subject. We condemn neither the severity of the one nor the leniency of the other judge, but we condemn the system. We believe most firmly that both of these learned men have acted conscientiously, with the purest and best motives, but we appeal to every member of the profession, and ask whether the difference in the sentences is not startling in the extreme.

If then this be so, when the sentence is pronounced by a single judge, whose every act is subject to public scrutiny, who has no local prejudice to lead him astray, no personal feelings to influence his conduct, what must be the inevitable consequences, when offenders are tried by a numerous, fluctuating and consequently irresponsible body of men, who grow turnips, preserve pheasants, and have stacks of corn and flocks of sheep of their own? A crime which, under any circumstances of aggravation, subjects the delinquent to transportation for life, can never, let the mitigating facts be what they will, be properly punished by three months' imprisonment. We know that some discretionary power of varying the sentence must be vested in the judge, but this power should be confined within strict limits. The scale which we should like to see adopted, would be something like the following:

1st. Transportation for life or for a period not less than seven

years.

2d. Transportation for a term not exceeding fifteen, nor less than seven years, or imprisonment for a term not exceeding three, nor less than two years.

3d. Transportation for a term not exceeding ten, nor less than seven years, or imprisonment for a term not exceeding three years, nor less than eighteen months.

4th. Transportation for seven years, or imprisonment for a term not exceeding three, nor less than one year.

The Commissioners have rejected all imprisonment for a period of more than three years, and in this alteration are fully supported by the present practice; since on referring to the criminal returns for the five years terminating on the 1st January, 1842, it appears that out of 91,920 convicts, only two have been sentenced to a longer imprisonment than three years.

From the observations we have made, and the extracts we have given, our readers may form a tolerable notion of the merits and defects of the proposed digest. They will acknowledge that the undertaking was one of intense labour and of great difficulty, and that so far as relates to the philosophical arrangement of the subject, the exposition of the existing law, the classification of offences, the suggestion of real amend-

ments, and the zealous performance of their arduous duties, the Commissioners are entitled to the highest praise. The only part of the work in which they have failed is in the drawing of the act;-a comparatively easy task, and one which requires little more than a steady attention to the minutiae of detail, and that mechanical accuracy of diction which can only be derived from serving a long apprenticeship in the office of a conveyancer. Most of the errors which we have pointed out, and it should be remembered that these are the most remarkable in the act, might with little trouble be entirely obviated, and very many men, who would have been utterly incapable of arranging the digest in its present form, might now readily prepare it for the sanction of the legisla

ture.

If the ministry would at once deliver the act into the hands of some conveyancer of recognized ability, say, the gentleman, if he still lives, who, in 1827, framed the criminal acts for Sir Robert Peel, and uniting with him some barrister well acquainted with the practical details of the criminal law, would desire them carefully to revise the whole, and draw it, in one uniform language, we have little doubt that the act might be ready for presentment to parliament during the very next sessions.

The commission has cost the country a large sum. A great work has been brought almost to completion, and it were a niggardly policy indeed which should refuse the trifling sum now necessary to render it efficient. The project (essentially distinguishable from the general question of codification) is one of infinite importance to the public; it has been recommended not only by the second Pitt but by many of the ablest. lawyers this country ever knew. "It is sanctioned by the example of almost every other civilized nation." In France, in Louisiana, in Austria, Prussia, Hanover, Bavaria, Saxony Baden, Wirtemberg, Lucerne, Pays-de-Vaud, Zurick, and Basle, criminal codes have either been adopted, or are now in the act of being prepared. These considerations have removed the doubts we formerly entertained, and we now hope to see the undertaking put in hand without delay.

J. P. T.

ART. IL-LIFE OF THE HONOURABLE CHARLES YORKE.

THE possession of the great seal has ever, since the time when it was held by laymen, been deemed the cardinal point of legal ambition-the perfection of a lawyer's hope. To have gained this prize in the prime of life-to have been wooed by his sovereign into its acceptance-to have been held worthy of his choice by general consent, and yet to have derived from the seal, as if there were contagion in the touch, instant disappointment, anguish, and death-such was the strange and melancholy fate of Charles Yorke.

The allegory of the eastern monarch, devoting one day to supreme felicity, yet finding every hour perversely darkened with chagrin and sorrow--the fable of the Persian fruit, sweet to the eye and ashes to the taste, were only the image and symbol of this great lawyer's unlucky fate. Nor did his misfortunes end with life. The fact of his perishing within three days after the public announcement of his being Lord High Chancellor, with the patent of peerage lying exposed in the chamber where he died, gave rise to that violent suspicion of his having fallen by his own hand, which, after the lapse of half a century, though utterly unfounded, still lingers in histories, memoirs and traditions, darkening the memory and blighting the posthumous fame of a truly exemplary man.

Charles Yorke, the second son of the great Lord Hardwicke, was born at his father's house in Great Ormond Street, London, on the 10th of January, 1723. His mother, daughter of Charles Cocks, Esq., of Worcester, had hereditary claim to talent as the niece of Lord Somers, and rejoiced in a family of five sons and two daughters, not one of whom disappointed their parents' hopes. The eldest, Lord Royston, illustrated the name by various works of literary merit; the third, Sir Joseph Yorke, was rewarded for diplomatic services of twentyseven years at the Hague, with the title of Lord Dover; the fifth became Bishop of Ely; whilst the second, the subject of the present memoir, gave such earnest of excellence, that we may well believe a premature death could alone have prevented his rivalling paternal fame on the woolsack.

VOL. XXX. NO. LXI.

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