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The words 'not ... previously regarded as such' must refer to new states of facts, not before thought of or arisen; they cannot refer to well-known evil-doing suddenly erected by an individual judge, as a depository of the common law, into a crime. For nobody would suggest that a judge could nowadays declare that seduction is an indictable offence, though it is severely condemned 1 by popular morality, because, in fact, though there have been abundant opportunities, no such charge has ever been preferred; (why, originally, common law morality spared this wrong is an interesting speculation). The power ... claimed for the judges' must, therefore, refer to absolutely new combinations of facts, such as that in the present case.
As to these, then, is it law that a judge can call into existence a new indictable offence ?
Let us turn to high authority. * It seems to be assumed,' says 2 the very learned judge last cited, that when a judge is called on to deal with a new combination of circumstances, he is at liberty to decide according to his own views of justice and expediency; whereas, on the contrary, he is bound to decide in accordance with principles already established, which he can neither disregard nor alter, whether they are 3 [to be found in] previous judicial decisions or in books of recognized authority. The consequences of this are, first, that the elasticity of the common law is much smaller than it is often supposed to be.'
Though the existence of this power as inherent in the judges has been asserted by several high authorities for a great length of time, it is hardly probable that any attempt would be made to exercise it at the present day; and any such attempt would be received with great opposition and would place the bench in an invidious position. The last occasion on which such a course was taken was the treatment of conspiracies in restraint of trade as a common law misdemeanour ... the history of this matter ... is by no means favourable to the declaration by the bench of new offences 4:
It is clear that this writer thought that the day for making new crimes (except by statute) was passed—the canon, so to say, of common law crimes was closed. Indeed, he goes on
A new state of things has come into existence. On the one hand, the courts have done their work; they have developed the law. On the other hand, parliament is regular in its sittings and active
? And even a legal offence in some countries including the United States where, indeed, it is (the writer believes) in fact indictable. 2 Hist. Cr. Law, c. 34, p. 352.
3 There is some misprint here. * Ibid p. 359. The case is R. v. Bunn (12 Cox, 316) in 1872.
in its labours ; and if the protection of society requires the enactment of additional penal laws, parliament will soon supply them. ... Besides, there is every reason to believe that the criminal law is, and for a considerable time has been, sufficiently developed to provide all the protection for the public peace and for the property and persons of individuals which they are likely to require under almost any circumstances which can be imagined, and this is an additional reason why its further development ought to be left in the hands of parliament.'
Accordingly, the learned judge categorically proposed 1 (in his Draft Code) to abolish all prosecutions at common law.
It is in view of such opinions of this jurist as have been quoted that an Article 2 in his Digest of Criminal Law has not been cited as an authority for the Lord Chief Justice's thesis, though, if read literally, it might be so taken. It runs :
"Acts Involving Public Mischief. Acts deemed to be injurious to the public have in some instances been held to be misdemeanours, because it appeared to the Court before which they were tried that there was an analogy between such acts and other acts which had been held to be misdemeanours, although such firstmentioned acts were not forbidden by any express law, and although no precedent exactly applied to them.
This has been done especially in the case of agreements between more persons than one to carry out purposes which the judges regarded as injurious to the public, in which case such acts have been held to amount to the offence of conspiracy.'
It is submitted that, in the light of other dicta of this writer some of which have been set out above, this cannot mean that in cases of this class the judge could withdraw the element of 'injurious to the public' from the jury, but that it must mean that, where there was no exact .precedent, the judge ruled that the allegations in the indictment either constituted a misdemeanour or did not, and in the latter case quashed it. And this has never been denied.
It must be clear that if the Lord Chief Justice is right in holding that he was entitled to declare that a chain of acts-admittedly novel-constituted a public mischief, he has, in fact, created a new indictable offence. And this a great many people would regard as a grave political danger.
But,' said 3 the Lord Chief Justice in argument, 'what evidence of tendency could be given ?'—' it was not a matter on which any evidence was required or could be given.' 1 2 Hist. Cr. Law, P: 358.
Art. 178, C. xvi. Undefined Misdemeanours. Part IV. Acts Injurious to the Public in General, p. 123, 6th edition.
3 21 T. L. R. 729.
In the first place, there is no reason why evidence should not have been called to show that the Russian Government had complained to our Government—as no doubt it had-and had threatened or was likely to put a check upon the present circulation of British subjects in Russia, if the abuse of passports was allowed to go on.
Even then it is conceivable that a British jury might have thought that it was worth putting up with some public inconvenience if the cause of Russian liberty was thereby promoted. If the same thing had happened at Naples, tempore Bombae, they certainly would have thought that the exclusion of British tourists from those delightful realms would have been a cheap price to pay for not erecting obstacles to the overthrow of the tyrant. But, suppose no such evidence could be given; does it follow that the question must be withdrawn from the jury? Suppose a man were to preach immorality openly in this country; he would, as Jowett said, be pelted but he could be indicted, too. What proof could be offered that this tendency was immoral? Yet the jury must judge and must be invited to do so-even if his words were quite explicit. So Sir James Stephen says? of 'fair comment':
• If the words were This is a wicked book," it would be plain that the words were defamatory, and the question to the jury would be whether the comment contained in them was fair. It is, however, perfectly true that when the jury have to decide such questions as that of fair comment and the like, they are obliged to form their own opinions as to the whole subject, the character of the language used as well as the rest.'
In this connexion, and because it illustrates the already illustrated sympathy of this writer with juries, the following words 3 may be cited:
' A jury can hardly be expected to convict a man whose motives they approve and sympathize with, merely because they regard bis intention with disapproval. An intention to produce disaffection is illegal, but the motive for such an intention may be one with which the jury would strongly sympathize, and in such a case it would be hard even to make them understand that an acquittal would be against their oath'; and to avoid this danger he says, on the next page, that the logical thing is to take away froin them intention, and to leave them the tendency of the matter published.'
Is it impossible that they would have returned a verdict on the model of the following recorded by Sir James Stephen (since the Libel Act) ?- The jury are of opinion that the pamphlet which has been proved to have been written by J. Reeve, Esq., is a very improper publication, but being of opinion that his motives were not such as laid in the information, find him not guilty' (2 Hist. Cr. Law, c. 24, p. 368). 2 Hist. Cr. Law, C. 24, p. 357.
3 Ibid., p. 360.
It is not disputed for a moment that the judge has a right to express bis opinion of the tendency of acts or publications alleged. In the case of libel there is express authority for this. In 1820 Abbott C. J. and the K. B. held that a judge not only might but ought to tell the jury “if the case will so warrant, that in his opinion the publication before them is of the character and ten-, dency attributed to it by the indictment; and that if it be so in their opinion, the publication is an offence against the law'(Rex v. Burdett, 4 B. & Ald. at p. 183, 22 R. R. 593). Authority even
• The whole objection,' said Tindal C. J. in 1841,' amounts to this —that the opinion of the judge was delivered in favour of the defendant. I think it is no objection that a judge lets the jury know the impression which the evidence has made upon his own mind. At all events, the party objecting to such a course should show that the impression entertained by the judge was not justified by the evidence' (Davidson v. Stanley, 2 Man. & G., at p. 728, 58 R. R. 562).
In the same case, Bosanquet J. asked, “Is a judge merely to read over his notes without saying in what manner the case strikes him ?' But all these judgments state or imply that the judge must take the jury's opinion too.
To conclude, it may be worth glancing at the question whether, in fact, the acts charged tend to produce a public mischief, i.e. whether twelve honest and reasonable men must necessarily so find. Of course we all know that every touch of immorality, the least thing contra bonos mores, is a common evil, if only because it tends
1 to perpetuate itself. But it is a commonplace that there is much moral wrong of which the criminal law will not take notice : 'It would be against common sense to hold criminal an agreement between two persons to walk in a park without leave, or to dishonour a bill ?' It is easy to take any trumpery offence and dub it as of public importance. It is true that in this case a fraud was committed on a public office, but if that is the extent of the public mischief, then it is not greater than that caused by the numerous persons who use the Post Office and the Telegraph in the commission of frauds. But who ever heard of such swindlers being indicted for a public mischief, on the ground that the Post Office is a public institution ? It is true that the latter is purely adminis
1 The distinction between public and private in morals is really false ; all wrong is both a public and a private evil. There is an aggravation of moral wrong by the greater number cognizant of a pernicious example.
? Wright on Conspiracy, p. 66. Cf. p. 83: “To permit two persons to be indicted for a conspiracy to make a slide in the street of a town or to catch hedge-sparrows in April would be to destroy that distinction between crimes and minor offences which in every country it is held important to preserve.'
trative, but can it be said that, in the issue of passports, the Foreign Office is practically anything else? Of course, if every abuse of a public office is indictable as a public mischief, there is an end of the matter. But, in the present case, does any one share the apprehension of the indictment, that the defendants' trick was 'to the endangerment of the continuance of the peaceful relations between' the King and the Tsar and their subjects? Which is more likely to embroil this country with the Government of Russia, the escapade of two private individuals, or the constant, systematic and bitter denunciations of that Government by the most powerful organs of the press in this country? Yet who ever heard of editors, or publishers or writers being indicted for provoking war? Quite recently Mr. Justice Phillimore told 1 an Old Bailey jury that "it was not a seditious libel, or, indeed, a libel at all, to use strong language against a foreign Government.'
But, it may be objected, surely, if this kind of fraud was to become general, it would lead to international trouble. This, no doubt, is true, but the remedy is obvious. If the Russian Government makes representations that our passport regulations are abused to their prejudice, there is nothing easier than—as States often do at each other's behest—to alter them, say, by insisting on a photograph of the applicant with the office stamp being affixed to the passport, or an accurate description of his personal appearance being included therein. But can it truthfully be said, that there has been the slightest - in the words of the indictment'injury,' or ' prejudice' or 'disturbance of the lawful, free and customary intercourse existing between the liege subjects' of the King and the subjects of the Tsar, on account of this episode ? Is not all this mere rhetoric, and is not the Foreign Office supremely indifferent, so far as we are concerned? In short, as to British public mischief, there has been none. Undoubtedly, there has been a Russian public mischief (at any rate from the official point of view which identifies government and people), for as the indictment? says, the passports 'were addressed to all those in the said
2 dominions of the Csar of Russia whom it may concern, but this is not the public mischief alleged for that is expressly averred of 'the said liege subjects,' i. e. of the King, who are pointedly, as we have just seen above, contradistinguished from those of the Tsar. Indeed, who ever heard of the common law of this country contemplating the public weal or woe, or even the existence, of any other?
On the whole, it is submitted that this new combination of circumstances' has not been dealt with 'in accordance with prin
1 Law Journal, Sept. 23, 1905.
 2 K. B. 731.