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Legal History |
BARRY WRIGHT[*]
This article examines the Canadian, New Zealand, and Queensland Criminal Codes (1892, 1893 and 1899) as part of the first wave of self-governing jurisdiction codifications of English criminal law. While historical work has been done on these codes individually, they have not been considered together in the context of shared imperial experiences and common late colonial challenges, or as similar responses to larger modernizing trends in law and state power.[1]
The imperial context includes the failed domestic English codification efforts (Henry Brougham’s Criminal Law Commissioners 1833-45 to J.F. Stephen’s Draft English Code, 1880), the ‘imposed’ British imperial codes (Thomas Macaulay’s Indian Penal Code, 1837-60 and R.S. Wright’s Jamaica Code, 1877), and similar colonial challenges around local adaptations of English criminal law and securing the rule of law. While many historians have moved away from imperial networks to focus on previously neglected local experiences, there remains rich potential for further comparative legal history on matters such as codification. This does not imply the displacement of history from ‘below’ by history from ‘above,’ or the uncritical restoration of whiggish imperial narratives. It is about better understanding of context, similar legal and constitutional issues, and local responses that entailed more than reference to imperial policies, but developed also, as Bruce Kercher has pointed out, from ideas circulating between colonies and adaptations facilitated by inter-colonial migration of legal and political personnel.[2]
These codifications were also related to larger trends associated with constitutional change and modernizing the exercise of state power. Here the success of codification in colonial and self-governing British jurisdictions stands in contrast to the failure of English efforts. The chauvinistic tendency to see codification as alien to the English legal tradition, one that favours adaptability to continentalist rigidities, was once described by the English Law Commissioner and India Legislative Counsellor Andrew Amos as ‘codiphobia.’ Conservative elements of the English bar and bench, vehemently opposed it. Codification was also frustrated by a related conceptual difference noted by Lindsay Farmer, between the common law traditionalists, who saw criminal law as an adjunct to private law and largely about the protection of private interests, and reformers, who saw criminal law as “...a species of public law in the specifically modern sense that it codifies the relation between the state and citizen as a political relation, a form of sovereignty.”[3] From the perspective of political and social theory, notably Max Weber’s concept of ‘formal legal rationality,’ the failure of codification is an illustration of the ‘peculiarities of the English,’ the common law exception that persists in the face of the typical modern legal forms. Yet as Farmer, Michael Lobban, and K.J.M. Smith suggest, the dismissal of codification as alien to English legal traditions (an idea promoted by foreigners and philosophical radicals with no legal background), or its absence a common law anomaly, neglects the prominence of codification in 19th century English criminal law reform debates.[4] It also fails to account for the success of codification in other British common law jurisdictions.
Colonial legacies favoured the prospects of codification. Complexities arising out of the reception and local elaborations of English law, a less developed bar and bench with a transplanted attenuated common law culture, and practical challenges accessing the sources of law, enhanced receptivity to the idea of simplified and more accessible criminal law. The ‘common law exception’ is attributed in part to the late 17th century British constitutional compromises and the resulting checks on state powers that displaced one of the incentives behind the later modernizing European criminal law codes. Such constitutional precocity did not exist in British colonial settings (despite frequent claims otherwise), where partisan abuses of justice were endemic, facilitated by wide executive influences over its administration. While such experiences were not a direct influence on codification, they reinforced a general view that more clearly defined criminal law would help check the powers of the state and an association between codification and self-government and a written constitution. Taken together these circumstances meant fewer obstacles to codification. The project entailed more than effective crime management, the focus of the domestic English debates. It was a public law initiative related to legal, constitutional, and governmental development.
The ‘imposed’ imperial codes and the ‘self-governing’ jurisdiction efforts represent distinct trajectories of criminal law codification. The Canadian, New Zealand, and Queensland codes were relatively democratic and autonomous self-determined efforts that combined local consolidations with the cautious Draft English Code as the primary external reference. Macaulay’s ambitious, comprehensive Benthamite effort in India and the successor imposed codes were a form of ‘enlightened despotism.’ Despite these significant differences, the imperial and post colonial initiatives derived from similar influences and had common basic objectives. All were informed by the 19th century English criminal law reform debates and aimed to make the criminal law more accessible. Most importantly, colonial and emerging self-governing jurisdictions faced similar challenges of reducing discretionary authority (and associated abuses) and of making the rule of law more effective in culturally-diverse frontier settings.
These shared origins and objectives suggest that codification represented an advance. The question remains: on whose terms? The aim of better securing the rule of law to make governance more effective was liberal progress on what existed before. But the developments were arguably experienced by traditional plural communities and indigenous populations in particular as a more advanced form of imperialism. From a more critical perspective, codification can be situated within modernizing trends around the exercise of state power and new forms of authority, associated with new institutions to enforce the law and the promotion of attitudes of deference to common obligations of citizenship. It is a development that is perhaps better conceptualized, in terms of political and social theory, as an expression of ‘modern state formation’ as explored by historians such as Philip Corrigan and Derek Sayer, rather than Weber’s ‘formal legal rationality.’
Jeremy Bentham coined the term ‘codification,’ and along with William Blackstone, was a major theoretical influence on the 19th century English criminal law reform debates.[5] Although Blackstone’s Commentaries were an Enlightenment-inspired attempt to lend rational order to English law, they became influential in the later resistance to codification. His celebration of the common law’s flexibility limited legislative reform to the resolution of doctrinal impasses and bridging gaps between judicial ingenuity and pressing public policy.[6] Bentham dismissed the Commentaries as no more than “an elegant palliative to inherently chronic confusion of the common law,”[7] which was hopelessly arcane and needlessly complex, the product of random cases and self-serving judges. Criminal law reform involved matters of vital public policy, with enormous impact on public and individual happiness, and required a systematic approach that was properly a matter for Parliament, not the courts. Bentham’s radical approach aimed at fundamental legislative reformulation of the law, which left no terra incognitae and was consistently informed by the rational principle of utility and the objective of deterrence. This meant the complete definition of offences, defences, and liability, set out with such clarity that the average person would understand it and the average judge would be unable not to. His ambitious ‘science of legislation’ in Introduction to the Principles of Morals and Legislation went yet further, seeking to comprehensively regulate social relationships and sovereign power.[8] Farmer describes the conceptual resemblance between Bentham’s pannomion and his better-known panopticon, “[t]he legislator, placed at the centre of the network of rules that govern the social, corresponds in location and symbolically to the gaze that animates his “simple idea in Architecture.”[9] As we shall see, such codifying ambitions were found to have particular applicability in colonial settings.
The legislative rationalization of criminal law took a range of forms in the 19th century. ‘Consolidation’ reduced existing criminal law legislation from numerous statutes to one, while more ambitious ‘digests’ attempted to present the law in an organized fashion. ‘Codification’ came to have disputed meaning but generally aimed for more systematic reorganization, reformulating disparate elements into a cohesive whole while abrogating common law elements. The Benthamite conception called for full elimination of the common law and fundamental law reform according to the principles outlined above. Bentham’s direct influence on reform is much-debated. The sweeping institutional and administrative reforms in decades leading to the 1830’s, that included the emergence of professional policing, the increased prominence of lawyers in the criminal trial and its professionalization, and the rise of the penitentiary, were driven significantly by crisis as the state contended with dramatic crime increases associated with industrialization and urbanization. Parliamentary consensus emerged as Whig reform advocates were joined by influential Tories by the 1820’s.[10] The most significant reforms for our purposes were Peel’s criminal law consolidation acts 1827-1832. Although hundreds of obsolete statutes were repealed or modernized, and there was a dramatic reduction of the death penalty from over 200 to a dozen offences, the consolidations fell well short of anything resembling the pannomion.
Henry Brougham, who had earlier paid tribute to Bentham’s influence, became Lord Chancellor with the fall of Wellington’s government. His criminal law Royal Commission, was launched in 1833 with a mandate to produce a single digest of criminal statues, a single digest of common law, and to consider combining both. It held out the promise of codification but Brougham lacked Peel’s methodical political skills and the reform consensus dissolved. Lord Chief Justice Ellenborough’s condemnation of Bentham and implacable defence of judicial powers set the tone for conservative elements of the English bar and bench for the remainder of the century, as modern defences of the common law were articulated, supported by the increasing academic study of law and reforms to criminal law appeals.[11] The persistence of legal pluralism, which had earlier limited the homogenizing effects of the common law itself, inhibited further rationalization.[12] The Commission’s work became bogged down by time-consuming committee approaches and emerging differences amongst the codifiers. Its eight reports culminated in a combined digest, presented in 1845 to a Tory government. Attempts to restart the project met concerted judicial opposition and little remained of the Commissioner’s work in Charles Greaves’s modest 1861 consolidation.[13]
James Fitzjames Stephen authored the final 19th century English codification effort. Unlike his father, the Colonial Office undersecretary, he unambiguously considered himself a utilitarian. But he also had conservative inclinations, favoured pragmatism to conceptual abstraction, and accepted judicial discretion as useful and inevitable.[14] There was minimal intrusion into judicial common law and interpretative powers in his cautious 1878 draft code which set out all offences, but not defences, and a minimal general part that did not attempt to define liability. The Attorney General and the Lord Chancellor endorsed it, and a Royal Commission was charged with converting it into a bill, but the project lost momentum and the government fell just after it was introduced in 1880. Stephen’s middle course satisfied neither the progressive codifiers nor the defenders of the common law. Lord Chief Justice Cockburn’s devastating critique disingenuously declared the proposal inconsistent with the idea of codification, suggesting that no code was better than a half-baked one.[15]
The failure of Stephen’s effort ended the prospects for codification in England, perhaps forever, but the prospects were better in other British jurisdictions where the Draft English Code proved to be influential. Local conditions from ‘below’ facilitated codification. The implications of the colonial reception and adaptations of English criminal law, a less-established profession distant from the sources of the common law, experiences with government abuses of the administration of justice, and the challenges of making criminal law more effective in new settings were supporting factors in the emerging self-governing jurisdictions. Imperial policies from ‘above’ also encouraged codification. As utilitarian reformers became increasingly influential in the Colonial Office and related departments, they encountered fewer experimental constraints in overseas British ‘laboratories’ than in the domestic English scene. The ‘imposed’ imperial codes, notably Thomas Macaulay’s Indian Penal Code and R.S. Wright’s Jamaica Code, were attempts to modernize the colonial state by making law more effective and reducing reliance on military intervention. The better securing of the rule of law was a basic objective that fit with the aspirations of more autonomous jurisdictions, although it was Stephen, not Macaulay or Wright, which became the primary reference for the first wave of ‘self-governing’ codifications in the 1890’s.
Some of the key players who encouraged codification as imperial policy included Thomas Macaulay, Andrew Amos, and James Fitzjames Stephen, all active as law commissioners in India.[16] Codification was seized as a means to make English law more effective in foreign settings and to ameliorate problems of colonial governance such as abuses of justice and over-reliance on costly military responses. The Indian Penal Code (IPC), proposed in 1835 and drafted by Macaulay two years later, was enacted in 1860, delayed by concerted European expatriate resistance to the idea of having the same legal status as indigenous populations, policy conflicts, and the disruption of the Mutiny, although the latter crisis helped to precipitate its eventual adoption. The IPC reflected the utilitarian ideal of a comprehensive code, Macaulay boasting that he had cooked up something that would “...make old Bentham jump [for joy] in his grave.”[17] Mindful of the obstacles faced by the English Law Commissioners he suggested that the enlightened despotism of a paternal colonial government was best-suited for such a project, “[a] code is almost the only blessing which absolute governments are better fitted to confer on a nation than popular governments.”[18] The English bar and bench mocked this first successful codification of English criminal law as the product of the non-practising lawyer for a backward overseas colony, “suggesting that it was necessary to keep things simple for the native population and magistrates of limited ability.”[19] The Colonial Office nonetheless promoted it for other colonies, a 1870 memorandum emphasizing that it was a means to restrain corrupt or arbitrary judges.[20]
Although the IPC became the basis for codes adopted in some Asian and African colonies, an otherwise weak response prompted the Colonial Office to commission R.S. Wright to write a new version for Jamaica, updating Macaulay and including a more sophisticated definition of liability. Wright faced none of domestic constraints encountered by J.F. Stephen (who began his project about the same time for the Lord Chancellor’s office and developed a rivalry with Wright).[21] Rebellion in Jamaica (1865) appears to have also been a precipitating factor, and the code was introduced in 1877. However, it was not brought into effect, although Wright’s effort became the Colonial Office model criminal code through to the early 20th century, with versions enacted elsewhere in the West Indies and the Gold Coast (Ghana). A number of British colonies remained uncodified at the end of the 19th century, and after a failed effort by J.F. Stephen’s son Henry on a new model code, Wright’s code was replaced in 1925 by Albert Ehrhardt’s Colonial Office model code based on Samuel Griffith’s Queensland Code.[22]
Colonial Office policies were supplemented by the exchange of ideas between colonial settings that did not emanate from London. The growth of this in the 19th century was facilitated by the migration of legal and political personnel. While this study has found no evidence that Canadian and New Zealand initiatives influenced one another, and there is no reference to Canada and minimal reference to New Zealand in the Queensland effort, such exchanges are reflected in the example of William MacGregor, who while Governor of British New Guinea passed on a copy of the 1889 Italian Code to Griffith. MacGregor later took the Queensland Code to Lagos, with that code having a primary influence on Ehrhardt, who himself was active in different colonies.[23]
Macaulay and the successor Colonial Office model codes were ‘imposed’ codifications. Reformers regarded these efforts as enlightened, liberal, paternal imperialism aimed at achieving the rule of law and the elimination of difference. However, the 19th century iterations were undemocratically promulgated as law by appointed legislative councils and involved little by way of indigenous input.[24] The first wave of voluntary codifications adopted through self-governing legislative processes (Canada 1892, New Zealand 1893, and Queensland 1899) were quite different, the product of relatively autonomous democratic processes, reflecting more complex influences based on local experience and developments. The impetus for these efforts came primarily from ‘below’ rather than ‘above.’ Late colonial circumstances and experiences had given rise to comprehensive local consolidations and created positive conditions for codification.
The prospects of codification were favoured by the consequences of the reception of English criminal law into new settings and local amendments to that law. The reception of English law in territories acquired through conquest or discovery and occupation is a complex topic bound up with the imposition of an outside political and legal order. Generally, the initial establishment of British interests in a territory resulted in subjects governed by those legal rights and obligations deemed reasonably applicable in the circumstances of the colony by the local executive named by the British government.[25] Transition from ‘informal’ to ‘formal reception’ followed when settlement reached levels where there were demands for representative political institutions and colonial courts to regularly administer the law. English laws in effect when the colonial legislature was established became the basis of the jurisdiction’s laws, with the local courts and legislatures empowered to amend these laws as conditions required, subject to imperial supervision (Colonial Office review and possible disallowance, imperial legislation, and, after 1833, appeals to the Judicial Committee of the Privy Council).
There were numerous colonial variations to these general reception processes. For instance, the Quebec Act, 1774 established a colonial legislature and regular courts and adopted English public and criminal laws then in effect but constitutional concessions to the majority francophone population included the restoration of French civil law for private disputes and suspension of the Catholic disabilities so that French-speaking judges could be appointed. The creation of Upper Canada (Ontario) out of the western portion of Quebec in 1791 to accommodate loyalist refugees from the American revolution promised the ‘very image and transcript’ of the British constitution, resulted in the full adoption of English law in effect when the colonial legislature met in 1792. New South Wales’ status as a convict colony and the wide powers exercised by the governor led to a slower transition from informal reception. The New South Wales Act, 1823 curbed the governor’s powers by way of a legislative council (although an elected representative element was delayed until 1842) and a formalized role for the Chief Justice to certify that colonial acts were not repugnant and as consistent with English law as colonial circumstances permitted. Continued uncertainty about the status of English law led to the passage of the imperial Australian Courts Act, which fixed a formal reception date at 1828 for New South Wales and Van Diemen’s Land (Tasmania).[26] Queensland, unlike Upper Canada, retained the earlier (1828) reception date. The resulting complications in the status and local development of criminal laws were compounded not only by the emergence of new colonies out of the territories of older ones, but also by the opposite process of colonial union, as we shall see, in case of Upper and Lower Canada (Quebec) in 1840 and the emergence of federal criminal law jurisdiction throughout British North America after 1867.
In this context local consolidations served to simplify the accumulated layers of law and set the scene for more dramatic reform. Codification was the next logical step in rationalizing the complex mix of applicable English criminal laws and colonial legislation.
A second incentive to codify came from the rudimentary state of the bar and bench in early 19th century colonial jurisdictions and difficulties accessing the sources of law. Common law culture, undergoing modernization in 19th century England, was a transplanted and attenuated one overseas. Local indigenous custom and quasi-autonomous legislative development of received English law meant a greater pluralism than found in 19th century England. This does not appear to have worked against legislative rationalization but rather posed challenges that made it more of a priority. Local consolidations (and later codifications) accommodated or denied such pluralism depending on political conditions and modernizing policies.[27] And unlike the general opposition to codification from the English bench, local judges were amongst the strongest proponents of codification. As Desmond Brown has noted, local professional attitudes were shaped in significant part by the practical difficulties of identifying and obtaining relevant statutes and scarce and expensive legal texts. Institutional holdings were limited and difficult for lawyers to access, let alone judges facing greater distances and more extreme conditions on circuit than English judges.[28]
Issues arising out of the colonial structure of government and administration of justice accompanied these practical challenges. Extensive experience with abuses of criminal justice reflected the heavy reliance on criminal law by colonial governments to fend off challenges and maintain the authority of local elites. Executive domination of the administration of criminal law, and reliance on expedients that would not be tolerated in 19th century Britain, highlighted how colonies did not benefit from British constitutional advances, despite formal claims made otherwise.[29] Judicial independence was compromised by colonial judges holding office according to royal pleasure rather than good behaviour as determined by Parliament (as was the case in Britain after 1701). This enhanced government control of the judiciary and meant the easy removal of troublesome reform-oriented judges (such as John Walpole Willis in Upper Canada in 1828 and in New South Wales in 1843). Judges were more usually at the centre of colonial political cultures and acted in compliance with government interests (the strained relations between Chief Justice Forbes and Governor Darling in New South Wales was a notable exception), as reflected in frequent reliance on extra-judicial opinions and the routine inclusion of senior judges in governing councils (practices that had been curbed in Britain by the 19th century). Criminal prosecutions were dominated by the law officers of the Crown, who exercised their prerogative powers (the ex officio information and nolle prosequi) widely to government advantage (early New South Wales even lacked regular indictment processes), whereas in England such powers were regarded with suspicion as Star Chamber remnants. Related controversies included wide executive influences over jury selection (enhancing the prospects of “packed” juries) in the Canadas and the absence of trial by jury altogether in New South Wales until 1833.[30]
Wide experience of partisan uses of the criminal law that exploited these features of the colonial administration of justice promoted receptivity to codification as a potential check on state powers. This fed a constitutional momentum around codification, something largely absent in England, where as Farmer notes debate was preoccupied with the effectiveness of the criminal law and a striking failure, unlike the modern European codifications, to consider how a code might limit state power.[30]
It is therefore not surprising that codification encountered less resistance and wider political and legal acceptability in the emerging self-governing jurisdictions. Not all advocates of codification saw it as a means of curbing the repressive state powers; some, on the contrary, saw it as a means of making the powers of the state more effective. Nor were all advocates of codification concerned about accessibility. However, codification complemented broad emerging aspirations about the need to modernize the colonial state and widen responsible self-government. The English common law prejudice against codification, and the condescension that portrayed it as appropriate for colonial backwaters, may have been shared to some extent by the local bar and bench in aspiring for recognition as mature legal cultures. Such attitudes may explain the less than enthusiastic response to the Colonial Office’s encouragement of Macaulay’s code and the successor Colonial Office model codes and, together with legislative inertia, the failure of codification in some self-governing former colonial British jurisdictions.
Imperial encouragement of codification tended to lend legitimacy to local codification efforts in more conservative circles. At the same time, Stephen’s cautious Draft English Code, a codification that nearly became domestic English law in 1880, did not carry the same baggage of colonialist associations as the IPC. Perhaps most importantly, Stephen’s modest, pragmatic approach to codification was loose enough in conception to be easily combined with local consolidations that had simplified the complex accumulated layers of received and colonial laws and further amendments. Local reforms could be readily accommodated rather than abandoned to a purer Benthamite conception. It is therefore unsurprising that Stephen’s Draft Code was embraced as the most suitable reference for these self-determined codification efforts.
This different primary external reference point, along with the fact that Canada, New Zealand, and Queensland were not obvious colonial ‘laboratories of power’ subject to utilitarian-engineered ‘enlightened despotism,’ made them distinct from the imposed imperial codifications. All the initiatives were nonetheless informed primarily by the English codification debates, manifested in different ways by Macaulay, Wright and Stephen. And there was a basic shared objective in all these codifications: reducing discretionary authority and making the rule of law more effective.
This objective, the better securing of the rule of law in culturally diverse frontier settings, represented progress, a liberal advance on older forms of colonial governance. An advance but on whose terms? Was the rule of law in these contexts an unqualified good, to use E.P. Thompson’s phrase? All the initiatives were about the more effective assertion of this modern form of authority, and were experienced by indigenous populations in particular as another form of imperialism. Progress arguably had more ominous implications for those whom authority remained an imposed foreign presence, a presence that promised to be less violent and arbitrary but proved more pervasive and difficult to contest.
The first wave of self governing jurisdiction codifications of English criminal law includes the Canadian Criminal Code 1892, the New Zealand Code 1893, and the Queensland Criminal Code 1899. The Canadian and New Zealand efforts preserved Stephen’s narrow conception of codification that retained common law. While Samuel Griffith relied upon the Draft English Code as his primary external reference for Queensland, it served more as a resource for substantive provisions than a conceptual influence, and his comprehensive approach ending up resembling Macaulay and Wright more than Stephen. There are similarities between these Codes that go beyond their common reference to Stephen. These relate to their quasi-constitutional character, a quality that was largely absent in debates around an English code. In the case of the Canadian Criminal Code, criminal law reform was openly regarded as a public nation-building initiative, part of an array of measures designed to better secure the sovereignty and authority of the Dominion of Canada. While such nation-building ambitions were less apparent in New Zealand and Queensland, the reform efforts there were also associated with greater self-determination, the regulation of political communities, and making the rule of law more effective in culturally diverse frontier settings.
In the debates leading to the British North America Act, 1867, John A. Macdonald urged uniform criminal law centralized under the proposed federal jurisdiction. The Dominion of Canada’s first Prime Minister, he also personally retained the government’s justice portfolio and ensured the quick passage of federal consolidations in 1868-9. Codification was not to become a government priority until the latter half of the 1880’s and there was a decidedly pragmatic rather than principled approach to the project. There was some familiarity with utilitarian arguments and with codes as found in Quebec’s civil law, but there was little inclination to pursue anything more ambitious than Stephen’s Draft English Code, a convenient vehicle for pulling together the amended Dominion consolidations. This was speedy progress compared to the half century of efforts culminating in the failure of Stephen’s bill at Westminster in 1880. Just over a decade later Canada pipped New Zealand at the post to become the first self-governing jurisdiction in the British Empire to codify its criminal law.
There was broad support for Macdonald’s position on criminal law jurisdiction. No opposition to federal criminal law jurisdiction appears in the records of the confederation debates and it is one of the few matters that remained unchanged in successive constitutional drafts.[31] A decentralized federation with state rights over important matters such as criminal law was perceived as a contributing factor to then-raging US civil war and Macdonald urged avoidance of the defects which “time and events have shown to exist in the American federation, ...[the] weakness which has been the cause of the [recent] disruption of the United States.”[32] Criminal law was directly associated with the stability of the new union, its territorial integrity, and security concerns informed by experiences beyond perceptions of a disfunctional US federation. British North America experienced the brunt of American aggression during the War of 1812 as well as raids by American ‘patriots’ in the aftermath of the Canadian rebellions in 1838 and American-based Fenians in 1866 (who sought to take Canada to exchange for Irish independence). Coordinated criminal law was portrayed as essential as national defence for the effective response to such threats was, and usually discussed in conjunction with that power.[33] These concerns were reinforced by a growing preoccupation with securing the new Dominion’s sovereignty and development priorities over the vast North West territories between Ontario and British Columbia.
The idea of federal jurisdiction over criminal law was not unprecedented. Macdonald also compared the chaotic state of American criminal laws to the two decades of experience in the United Province of Canada which brought progressive uniformity to the formerly disparate colonial criminal laws of Upper and Lower Canada (Upper Canada’s relatively benign criminal law, formally received in 1792 and amended in 1833 with the adoption of Peel’s consolidations, reduced capital offences to 11, whereas Lower Canada had over 200 capital offences derived from largely unreformed English criminal law as it stood in 1774).[34] The Province of Canada consolidation exercise had also given rise to a codification proposal based on Macaulay’s IPC from William Badgley, a former Attorney General, in 1850.[35] Elsewhere in British North America, Nova Scotia had been the first British jurisdiction to collect and index all applicable statutes (1804, antedating the first volume of the British Statutes of the Realm by six years) and New Brunswick had also adopted Peel’s consolidations acts, becoming the first British jurisdiction to enact a codified format for all offences in a 1849 digest.[36] While codification seemed a distinct possibility in 1867, the earlier Province of Canada experience also prefigured the larger scale challenge faced at confederation: Reconciling the criminal laws of all the former British North American colonies, as the Dominion of Canada assumed jurisdiction over diverse criminal laws, originating in English law as it stood when each had gone through formal reception, as amended by the colonial legislation and applied by the colonial courts in different ways according to local conditions. In 1867 the criminal laws of each colony diverged as much from each other as from English criminal law at that time.
Rapid and effective assertion of Dominion jurisdiction was the highest priority and more easily achieved by way of consolidation than by a large, legislative time-consuming codification project. Simple consolidation alone presented Macdonald with at least three options. Adoption of one of the pre-confederation consolidations seemed to be the easiest course but risked acrimonious debate with the provinces. Striking a commission to draft a federal consolidation that assimilated the best colonial provisions would be nearly as time-consuming as codification. Macdonald’s expedient course, one that was cheap, quick and avoided political complications, was to simply turn to Greaves’s English Criminal Law Consolidation Acts, 1861. It became the basis, in slightly amended form, for the new Dominion Consolidation completed in 1869.[37] However, in some cases the adopted provisions were a retreat on advances developed in the provincial consolidations, while new laws were imported that had never been in effect in the colonies, including matters that intruded on provincial jurisdiction. There was a proliferation of amending bills and the government was obliged to pass twenty such statutes within five years.
During this time Judge James Gowan, a close confidant of Macdonald’s, met with leading English and Irish barristers and judges as well as reformers and Colonial Office officials, including R.S. Wright, then at work on the Jamaica code.[38] Unlike many of the barristers and judges he met, Gowan was a strong advocate of codification. His Canada Law Journal, long the most influential legal periodical in British North America, was conservative in paying close attention to English developments and dismissing American legal innovations as unrealistic foreign curiosities, but it also strongly advocated codification, evoking little in the way of professional criticism or defences of the common law.[39] However, codification in Canada was to be shaped more by political priorities than law reform debates and professional attitudes. Macdonald’s Conservative government had fallen by the time Gowan returned to Canada, and making little headway with the governing Liberals, he travelled again to Europe in 1878, witnessing early debate over Stephen’s draft English code.[40] There remained little political appetite for such a large legislative project that might evoke similar contention when the Conservatives returned to power. Prime Minister Macdonald divested himself of the Justice portfolio, becoming Interior Minister to pursue the economic and public works initiatives known as the ‘national policy.’
Momentum began to build around codification upon completion of a new consolidation as part of the Revised Statutes of Canada in 1884. Passage was delayed because of the North West Rebellion, and as Ministry officials struggled with the applicable laws and prosecutions, public criticism of the criminal law intensified. The 1885 crisis arguably mobilized the political will for codification. Gowan and George Burbidge, the deputy Minister of Justice who had published a Canadian edition of Stephen’s Digest, lobbied John Thompson, the new Justice Minister, to consider taking reform to the next logical step, noting that the Draft English Code provided an ideal, ready-made model. Thompson visited London in 1888, and although it does not appear that he consulted with Stephen he was encouraged by British Ministers to consider the 1880 English bill.[41] Further prompting in 1889 came from Mr. Justice Taschereau, a Liberal appointee to the Supreme Court of Canada, who offered to draft a code in six months. Thompson declined but immediately directed Burbidge to begin work on a codification bill that combined the Stephen’s code with the most recent Canadian consolidation.[42]
Burbidge and Robert Sedgewick did most of the drafting, while Thompson set out general guidelines and worked out strategy for the bill’s introduction to Parliament, closely studying the debates around the English bill.[43] Judge Gowan also advised, although his most notable, or notorious, contribution was removal of the published criticisms of Lord Chief Justice Cockburn and others of the Draft English Code from Ottawa’s Parliamentary Library (confiding to Thompson that the great and important point was to get the legislation through the Dominion Parliament, and for this reason the potential rich find for opponents must be kept out of circulation).[44] The records show that the 1880 English bill and the 1886 Canadian Revised Statutes served as the primary references, followed by Greaves’ 1861 Consolidation, Stephen’s Digest, and Burbidge’s edition of it, and oblique reference to nine English and American periodical articles describing the New York, Italian and Indian Codes. The key innovations identified included the comprehensive definition of all criminal offences, abolition of the distinction between felonies and misdemeanours and adoption of the indictment and summary offence procedures. Particular Canadian offences were also noted (inciting Indians to riotous behaviour, larceny of timber, unguarded iceholes etc.).[45] The bill fully embraced Stephen’s approach to codification in concept and closely resembles the 1880 bill in organization.[46] In content, Stephen’s common law renderings were adopted and most of the statute-derived provisions drew from the 1886 Canadian Revised Statutes. Brown estimates 40% of the substantive provisions (209 sections) derive from the English Draft Code while 60% (321) are taken from Canadian sources or are new matters.[47]
The bill was introduced in the spring of 1891 and distributed to MPs, the bench, provincial Attorneys General and leading members of the bar.[48] A slightly revised bill was introduced in April 1892 and passed within two months of well-managed committee hearings in which debate focused on public order offences (sedition, libel and riot).[49] Taschereau attempted too late to emulate Cockburn, denouncing the Code in a critique, derived heavily from the Lord Chief Justice’s, published in January 1893 after the legislation was passed and proclaimed.[50]
The Canadian Criminal Code was a quasi-constitutional initiative that reflected the perceived central role of criminal law in the nation-securing initiatives of the Dominion government. While colonial circumstance gave rise to the favourable preconditions for codification, the allocation of jurisdiction over criminal law was also motivated by the view that such powers were essential to the effectiveness of the Dominion’s national authority. The events of the 1880’s generated the political momentum necessary for a large legislative project of codification to succeed.
One direct reflection of these themes may be found in the comprehensive political offences and national security provisions set out in the 1892 Code. They go well beyond the equivalent provisions in the Draft English Code. Stephen’s modernized but conservative restatements of the classic political offences of treason and sedition were adopted but the 1892 Code also contained much more elaborate offences related to breaches of the peace and related uses of firearms and liquor. Some of these were adopted from special measures applied in Ireland but others were uniquely Canadian, particularly those directed at public works projects and native populations. Notable among these was section 98, the offence of inciting “Indians, non-treaty Indians, or half breeds” to make demands of Government officials or agents in a disorderly manner.[51] The unique Canadian capital political offence of lawless aggression, developed out of the 1838 and 1866 border raids and applicable to foreign citizens who could not be prosecuted for treason, was added along with new provisions related to official secrets derived from 1889 UK legislation that post-dated Stephen’s effort.
The assertion of public authority is also reflected in the place of the 1892 Code within a larger framework of related initiatives. Canadian governments faced challenges of political and social integration derived from class, ethnic, religious and regional divisions, as well as the incomplete projects of expropriating land from the first nations. The 1885 North West crisis highlighted the importance of the more effective management of such conflicts, and prevention of their escalation, through routine criminal law enforcement and related administrative measures. The responsibilities of the North West Mounted Police, created at the time of the first Dominion consolidation, extended well beyond frontier criminal law enforcement to include assertion of Ottawa’s sovereignty over the vast North Western territories and management of native groups. Their activities included curbing American incursions and suppression of nomadic and other customs that were regarded as an obstacle to European settlement and economic development priorities articulated in the ‘national policies’ noted earlier. The creation of the federal Department of Indian Affairs and the passage of a series of Indian Acts delegated the Crown’s aboriginal obligations from the British to Canadian government, which not only affected treaty responsibilities but also saw the introduction of ambitious new policies of segregation and assimilation that aimed to marginalize and civilize indigenous groups according to Ottawa’s policy priorities. The Indian Acts supplemented measures such as section 98 of the 1892 Code by introducing quasi-criminal prohibitions over native customs and practices, particularly where they interfered with governing notions of the rule of law, private property and economic development. Even the legal profession served as a channel of frontier cultural authority in the form of law officers of the crown, Indian agents and stipendiary magistrates, and eventually a developed bar and bench.[52] In the case of Canada, codification case did not detract from the authority of the bar and bench, rather, it facilitated professional power.
The Canadian Criminal Code therefore entailed much more than effective crime control, bound up as it was with the assertion of Ottawa’s authority, sovereignty, and development priorities over vast geographical space, of better managing social divisions and promoting homogenous modern citizenship. It was designed to make government authority more effective by making the rule of law more effective.
While it did not confront as complex an array of colonial criminal laws as the Dominion of Canada, New Zealand also adopted Greaves as basis for its consolidation, and did so over a year before Canada. New Zealand initiated its codification project well before Canada, with a government bill first introduced in June 1883. The legislative process did not go as smoothly, and the Criminal Code Act only became law a year after Canada’s Code. As Jeremy Finn points out, a lack of sufficient legislative momentum was often fatal to codification efforts, and in New Zealand’s case there was no broad consensus to make codification a legislative priority or the support of political leadership and a disciplined government majority. Finn also notes that the legislative debates were livelier and more sustained than in Queensland, and the same could be said in comparison with Canada. There were long diversions into matters of principle around offences such as blasphemy and the retention of capital and corporal punishment, and debate frequently descended into partisan political point-scoring.[53] Unlike Canada (and like Queensland as we shall see), reference to American law was not uncommon. The broader public objectives of more effective, rule of law based authority are also less evident than in Canada’s project, although uses of the law against indigenous populations are suggestive.
Alexander Johnstone, a judge of the Supreme Court, and Walter Reid, the Solicitor General, were appointed in 1878 to update the 1867 consolidation and subsequent amendments. Downie Stewart, a Dunedin lawyer and MP, played a similar advocacy role as Judge Gowan but had more immediate political influence. He was familiar with Macaulay’s Code, and the moves afoot with Wright and Stephen, other codifications outside the Empire, as well as early initiatives launched in the Australian colonies. He convinced the government to set its sights beyond a new consolidation, and Johnston and Reid’s mandate was extended to preparing a criminal code. Stephen’s 1878 draft and the English bill of 1880 provided timely models from which they worked, and like Canada’s Department of Justice, they rapidly excluded obsolete or inapplicable English offences and added local amendments. A lengthy memorandum and notes accompanied the draft text of the 1883 codification bill, explaining the advantages of Stephen’s proposal (particularly simplified procedure and ending the distinction between felonies and misdemeanours, the comprehensive statutory definition of indictable offences), and summarizing modifications to account for different local circumstances.
Like Canada, and unlike Queensland, as we shall see, Stephen’s narrow conceptualization of codification was largely preserved, as reflected most notably in the lack of definition of liability and preservation of common law defences. Their report also noted criticism led by Lord Chief Justice Cockburn to the English bill, which as we have seen was covertly suppressed in Canada, and which we shall see, was used as a pretext by Griffith to diverge from Stephen in his Queensland effort. In the case of New Zealand, it prompted a note of caution, with the Commissioners “...of opinion that it might be better to defer the enactment of the code in the colony until the English Parliament has finally dealt with the subject; but, as the General Assembly may think it desirable to proceed with without further delay, we have prepared the draft Bill annexed hereto, founded in the English Bill of 1880.”[54] The suggestion of waiting until a code was legislated for England was an invitation for protracted legislative delay.
The draft bill was introduced by the government in June 1883, a week after the Commissioners completed their work. Premier Frederick Whitaker spoke enthusiastically about the benefits of codification, making reference to the New York Code and downplaying the failure of the English bill. The bill was withdrawn, and introduced and withdrawn again in 1884 after critics seized on the Commissioners’ recommendation for delay and calls for wider consultation with the profession and judiciary. Finn notes that there was no formal process then in place for consultation with the profession and the judiciary, as was done by Canada’s Justice Department, although the judges appear to have been sounded out eventually and indicated cautious approval of the initiative.[55] The bill was again introduced in 1885 and 1886 by Patrick Buckley, the Colonial Secretary, a later Attorney General and judge of the Supreme Court, but encountered partisan attacks (including objections from earlier code proponents Whitaker and Stewart). Debate included whether the legislation should be passed as a whole or in parts, and specific matters such as the accused refusing to give evidence, matters to be dealt with as a question of fact or law, private prosecutions, appeals and retrials, retention of the offence of blasphemy, corporal punishment, and the age of sexual consent. The Liberals, the strongest advocates of codification were out of power after 1886 but returned in 1891. Subsequent bills failed for technical reasons until a disciplined party effort in 1893 pushed the project through. The later debates reiterated earlier themes but also reflected ample criticism of provisions in light of allegedly superior New York and California provisions, and concerns from other quarters about the limits of legitimate political action in discussion of unlawful assembly and drilling provisions.[56]
These matters bring us to the political provisions of the 1893 Code “Crimes Against Public Order, Internal and External” (sections 77-107) which replicated Stephen’s updated renditions of these offences with the addition of appropriate minor amendments. The heated debate over blasphemy did not extend to sedition, although, as noted, the proposed breach of the peace provisions did cause some concern. They did not go nearly as far as the Canadian elaborations on Stephen in this area. As in Canada, seditious intent was not defined, reflecting Stephen’s refusal to spell out principles of liability. Like Canada, the malleability of seditious libel ensured that it continued to have a chilling effect on dissent and political opposition. Common law sedition prosecutions had earlier been taken against leaders of peaceful resistance to Maori land confiscation, leading to the indefinite detentions of Te Whiti and Tohu in 1883, the year that the codification bill was first introduced. After codification the offence continued to be applied to Maori resistance (Rua, 1916) as well (like Canada) to labour organizers (Holland and Hunter, 1913) and opponents to conscription (Semple, Cooke, Thorn, Fraser and Brindle, 1916).[57]
A major 1908 revision re-titled the code the Crimes Act and shifted political offences to Part V (following new parts on punishment, defences and parties). Although it was now claimed that the entirety of criminal law was made statutory (common law defences eliminated with all justifications and excuses set out in part III), the Crimes Act, 1908 did not introduce complete definitions of liability. While New Zealand eventually went further along the utilitarian path of codification than Canada, it was not a comprehensive code like Griffith’s Queensland Code. The renaming that eliminated reference to “code,” raises the question of what form of legislative rationalization constitutes codification. From a Benthamite perspective Stephen, Canada and New Zealand were not “true codes,” although no evidence has been found that this motivated the change of title in New Zealand.
Colonial challenges and the absence of determined and influential common law advocacy created favourable conditions for codification. The geographical challenges of asserting sovereignty and enforcing the rule of law were not as intense as Canada’s, although there were similar cultural challenges with indigenous populations. The protracted legislative debate was much wider-ranging than Thompson’s tightly managed introduction and debate in Ottawa, and reflected greater interest in non-British innovations, reflecting a political culture that was less hostile to American models. In the end however, less ‘cosmopolitanism’ found its way into the New Zealand Code than the Queensland Code. The end result was similar to Canada’s effort: a localized rendition of Stephen’s narrow codification of English law.
The Queensland Code, 1899, authored by Queensland’s chief justice Samuel Griffith, a former attorney general and premier who later became the first chief justice of the Australian High Court, also combined a local consolidation with the Draft English Code as the primary external reference. However, Griffith rejected Stephen’s narrow concept of codification and pursued a comprehensive approach that was similar to Macaulay and Wright. The Queensland code ranks with the India and Jamaica codes as one of the significant 19th century utilitarian codifications of criminal law. It is arguably the most successful given its wide influence in the 20th century.
Australia, like Canada and unlike New Zealand, emerged as a federal state, but unlike Canada jurisdiction over criminal law remained decentralized, these matters were left to the former colonies that had become states in 1901. Griffith played a leading role in Australia’s federation debate that was similar to Macdonald’s. Canadian scepticism towards American institutional and constitutional models derived in part from proximity. It was also influenced by the lasting impact of what Louis Hartz described as a ‘founding fragment’ of United Empire Loyalism on English Canadian political culture.[58] Unlike Canada, the Australian federation debates had enthusiastic and influential proponents of US models such as Andrew Inglis Clarke. These were openly drawn from and adopted where they could be reconciled with Parliamentary style democracy. Decentralized criminal law jurisdiction was one of several constitutional divergences between these otherwise similar British self-governing federations.[59] Griffith led the Queensland delegation as Premier to the Melbourne constitutional conference of 1890 and was elected deputy President of the 1891 Sydney Convention where he authored the influential Lucinda draft proposals, the basis of the constitutional resolutions that emerged from the convention. These were largely preserved at the 1897 Adelaide Convention and formed the nucleus of the Australian constitution. In this context the Hartz’s thesis has been used to explain Griffith’s determination to move beyond slavish importation of British models and develop innovative legal and institutional forms appropriate for local conditions.[60] These themes also characterize Griffith’s approach to codification, where his references to the New York Code, for instance, stand in contrast to the dismissive attitude of Canadian law reformers and the Department of Justice.[61]
Griffith’s contributions to federation and codification, a project he began shortly after his appointment as chief justice in 1893, have been understood as discrete and unrelated activities, reflecting a complete shift from a leading political to judicial role. However, Queensland’s experience of economic depression, a general strike, and the emergence of the Labor Party in the 1890’s lent political urgency to Griffith’s criminal law reform work and his contributions to the Australian constitution may be seen as an important context for his codification project. It was in some respects an extension of his constitutional efforts as reflected in the prominent arrangement of political offences, the extension of judicial authority over legislative conventions, and innovations around matters related to public expression and communication. Griffith’s code involved much more than the more effective management of crime. It had quasi-constitutional qualities related to the modern regulation of the Queensland political community, with provisions that complemented the draft provisions of Australian federation, which of course were about regulating relations between the former colonial political communities.
The primary records of Griffith’s codification work appear in three main documents, his 1896 digest of applicable criminal statutes (that compiled, arranged, and modernized all applicable English and colonial criminal law statutes and was accompanied by an explanatory letter), his 1897 Draft Code (with a detailed preface and careful cross references to his digest of the previous year, the Draft English Code, the common law, and other sources), and the 1899 Report of the Royal Commission (which included Griffith) that converted the draft into a bill that was passed by the legislature in October 1899 to take effect on 1 January 1901.[62] The digest included all applicable legislation (except imperial), 150 colonial and 100 English provisions, made up of English criminal statutes in effect at the time of the 1828 reception date set out by the Australian Courts Act, not repealed or amended by local legislation, New South Wales legislation to 1859, and Queensland legislation passed after separation to 1896. Anticipating the next step of codification, he simplified, modernized, and arranged the statutes in organized fashion and made reference to a general part for definitions and statement of liability, and set out a schedule of legislation to be repealed. As Griffith noted in his explanatory preface, “I hope the preparation of the Code, which is in one sense a much more difficult, though much less laborious tasks, will not occupy so long a time as had necessarily been required for the compilation and revision of the Digest.”[63]
The draft code was quickly completed the following year, with the provisions comprehensively cross-referenced to relevant influences.[64] The digest supplied most of the provisions, and other influences include the Draft English Code (well over 100 references), the common law (75 references), the 1889 Italian Criminal Code (15 references), and the 1881 New York State Code (9 references). Stephen was by far the main secondary reference, but as Robin O’Regan notes, Griffith freely departed from it where he thought appropriate, justifying this by extensive reference to Lord Chief Justice Cockburn’s criticism of the bill in the explanatory preface.[65] There were qualitative differences among the influences, which commentators have seized upon to emphasize the unique cosmopolitan qualities of Griffith’s effort.[66] In particular, the influence of the Zanardelli’s Italian Penal Code of 1889 which Griffith himself highlighted in his explanatory letter: “...I have derived very great assistance for this Code, which, I believe, considered to be the most complete and perfect Penal Code in existence.” [67] The Zanardelli’s Code was noted in the Law Quarterly Review (and came by this means to the attention of the Canadian Department of Justice) but as O’Regan explains, that it came to Griffith’s attention in 1894 through William MacGregor, Lieutenant Governor of British New Guinea, who supplied a copy of the code, Zanardelli’s ministerial explanation and an Italian dictionary.[68] The New York Code, also noted in English, Canadian, and New Zealand codification efforts, appears to have come to Griffith’s attention by way of a meeting with David Dudley Field during a visit to the United States in 1887.[69]
Griffith’s general part (setting out the principles of liability or criminal responsibility) was highly innovative. It went beyond existing British reference points and reflected the particular influence of Zanardelli, and this is certainly more significant than a reference to Stephen on an obscure common law offence. Section 25 set out a concise and elegant statement of criminal responsibility which extended to an economical treatment of accident and involuntariness and other defences and Griffith recognized he was taking an enormous step here.[70] As Alberto Cadoppi points out, his systematic approach to liability resulted in an integrated relationship between the General and Special Parts, less verbose, repetitious and inflexible than Stephen, and avoiding, as he puts it, the common law tendency to ‘casuistic’ approaches (inductive reasoning) and ‘exemplicative’ techniques (use of examples) that burdened even Macaulay and Wright.[71] Griffith’s avoidance of illustrations in favour of principles of general applicability was even more consistent with a Benthamite conception of codification than Macaulay and Wright. Indeed, his main departure from Stephen (and the Canadian and New Zealand codes) is that he conceptualized his project in ambitious, comprehensive Benthamite terms.
Griffith’s code nonetheless remained a product of a common law system, and Cadoppi’s suggestion that he somehow transcended it by producing a unique hybrid or quasi civilian codification is perhaps overstated.[72] While the pannomion aspired to be a deductive code, Bentham himself struggled with this approach.[73] The English Criminal Law Commissioners, the Colonial Office, the Canadian codifiers (who were familiar with the civil law system in Quebec), and the New Zealand drafters avoided venturing into European codes, informed, most likely, by a perception that an irreconcilable gulf would persist even with codification, between the deductive processes associated with inquisitorial continental systems and the inductive processes associated with adversarial common law systems. Griffith was able to avoid this conceptual gulf simply because the vast majority of the Queensland Code provisions were English criminal statutes and local colonial legislative amendments, as rationalized by Griffith and Stephen and supplemented Stephen’s renderings of common law. While the Italian and American influences were novel they did not determine code’s fundamental character and the counts of references in the draft do not, in the end, distort relative influence. The Queensland Code is not as a unique anomaly as it is sometimes portrayed, but warrants recognition, along with Macaulay and Wright as one of the three significant utilitarian codifications of English law. Griffith’s particular contribution was his General Part inspired by the Italian Code, which brought his effort even closer to Bentham’s conception of codification and represented an advance over Macaulay and Wright.
Griffith’s draft was largely preserved in the 1899 Royal Commission recommendations adopted by the government. In contrast to the New Zealand debates, the bill introduced by Attorney General Rutledge passed in less than five weeks with a broad degree of cross-party support. Rutledge pointed to the success of codification in New Zealand and America and reiterated Griffith’s arguments. Debate focused on the retention of corporal and capital offences, particularly in the context of experiences of miscarriages of justice. There was significant debate around whether the death penalty should be retained for treason and the possible restrictive effects of the unlawful assembly provisions on labour disputes.[74] The government’s attempt to move all 708 clauses as one bill was rejected at Committee stage, and members began to work through the bill clause by clause which was later expanded to clusters of clauses, which were passed as blocks containing increasing number of clauses
Griffith’s codification also proved to be influential elsewhere, becoming a successor to Macaulay and Wright by way its lineal influence on the 20th century Colonial Office model code. Copies of the Queensland Code were sent to lawyers, politicians, and administrators elsewhere in Australia and overseas. Sir Richard Baker of South Australia predicted that its adoption throughout the Commonwealth was only a question of time, although only Western Australia, Northern Territory, and Tasmania codified (and the latter more closely resembled the Canadian and New Zealand codes) and renewed efforts in South Australia and Victoria failed.[75] William MacGregor became governor of Lagos and introduced Griffith’s code there, forming the basis for the Northern Nigeria Code in 1904 and 1916 Nigerian Code. This latter rendition was the primary reference for Albert Ehrhardt’s codification project for the Colonial Office model code, initiated in 1925 and completed in 1935.[76]
Of particular interest here are the relatively neglected constitutional dimensions of the Queensland Code.[77] The General Part, the focus of most of the existing commentary, is immediately followed by Offences Against Public Order (Part 2), Offences Against the Administration of Law, Justice and Public Authority (Part 3), and Acts Injurious to the Public in General (Part 4). While this corresponds to Stephen’s organization and includes his updated versions of the classic political offences, ‘modern’ offences against executive and legislative powers are added or are developed to a greater degree than in the Canadian and New Zealand codes. These include liability for officials and other state actors for matters like interference with political liberty, corruption and abuse of office (influenced by the Italian and New York codes).[78] The provisions relating to public expression and political communication are elaborate range and go well beyond the offences of sedition in Part 2 (replicating Stephen) and breach of official secrets in Part 3 (adopting like Canada the 1889 UK legislation). The common law offence of blasphemy, a major point of contention in New Zealand, was abolished and replaced by the Part 4 offence of public attacks on religious creeds.[79] The defamation provisions in Part 5 are much more comprehensive than Canada and New Zealand, derived from his earlier codification of this area.[80] Griffith’s decision to codify matters of parliamentary privilege (primarily in part 2 but also sections in parts 3 and 5) was a curious departure and he claimed, “...the reasons for not regulating them as a breach of criminal law are, however, not applicable to Queensland.”[81] No further explanation is offered of this departure from Westminster parliamentary conventions and it is here that we see the New York Code’s primary impact on the Queensland Code
While Griffith’s innovations concerning official and state actions and public expression may be understood as attempts to regulate the powers of the modern bureaucratic state and the consequences of a politically-engaged popular public sphere, the codification of privilege from this part of the ‘unwritten constitution’ best illustrates the similar objectives that link the code with his earlier constitutional activities. It also highlights receptiveness to American influences that would be dismissed in the Canada context. From the Canadian perspective, the conventions of parliamentary privilege assumed great significance in the 19th century struggles for responsible government against appointed councils. Codification of these conventions introduced judicial review for matters that fell within Parliament’s jurisdiction which was usually jealously guarded.[82] Griffith’s ease in accomplishing this reflects perhaps less an uncertain grasp of British constitutional history than his political experience and continuing indirect political influence as well as the spirit of constitutional innovation that characterized the federation debates carried over to the criminal law codification project. Codifying such conventions as an element of the written constitution, and making measures against legislative corruption and the penal consequences explicit, could be seen as advances. However, the projection of American style constitutional checks on legislative authority also represented a significant shift of powers from the elected members of the legislature to appointed judges. Viewed more critically, it could be seen as a response to fears in some circles to political developments (the general strike, birth of the Labor Party and its rising political power) by extending ‘responsible’ judicial oversight over legislatures.
English criminal law reform debates influenced the Canadian, New Zealand and Queensland efforts but they were largely the products of self-government that combined local consolidations with the Draft English Code, a convenient vehicle with few colonialist associations. Griffith departed most dramatically from Stephen’s narrow conception of codification, his effort, like Macaulay and Wright, resembling the comprehensive Benthamite ideal.
The term codification came to apply to a wide range of forms of criminal law rationalisation. Bentham’s ambitious original conception aimed to shift law-making from the courts to Parliament, where utilitarian-inspired legislators would fully exploit the modern public policy potential of the criminal law, ending its relegation as one of the dirtier jobs of the courts. His premise was that legislators are more accountable and capable of rational principled approaches to law-making than judges, and that criminal law reform would remain a legislative priority. However, Bentham himself eventually realised that discretionary authority could not be entirely eliminated. Experience also suggests that comprehensive codes have aged poorly. They require comprehensive updating, seldom a legislative priority, and are invariably overlaid with judicial constructions by way of inconsistent and eccentric statutory interpretation. This suggests some validity to claims about common law’s flexibility, the more explicit and open judicial obligations associated with it, and the practical value of Stephen’s pragmatic approach to codification.
Codification nonetheless appeared to curb the more obvious manifestations of discretionary authority in the criminal law. It helped to disguise discretionary powers and aimed to make authority both more modern and legitimate. The utilitarian ideal of comprehensive legislation that would govern social and sovereign relations had particular resonance in colonial contexts where codification played a role in the modernisation of governance. This was most obvious in the case of the British utilitarians in India who came to dominate policy until the renewed influence of the “orientalists” in the latter part of the 19th century. Macaulay embraced codification as a means of reducing reliance on discretionary forms of authority and promoting the rule of law, a solution to colonial problems such as status differences, administrative corruption, and over-reliance on military intervention. Similar challenges were also faced in emerging self-governing jurisdictions. The Canadian, New Zealand and Queensland efforts did represent a distinct trajectory of codification, Stephen rather than Macaulay was their primary external reference, their efforts were self-determined and reflected local developments manifested in their consolidations that were their primary reference point. But they were informed by the same general English criminal law reform debates and shared a common basic objective of enhancing the rule of law in culturally-diverse frontier settings.
We have seen how colonial circumstances provided a fertile ground for codification. In both colonial and the emerging self-governing jurisdictions, it became a public, quasi-constitutional initiative that involved much more than the more efficient management of crime. Crises also appear to have helped precipitate codification in these cases. The mutiny led to the eventual implementation of the IPC, the Jamaica Rebellion to the drafting of Wright’s code, and the 1885 North West Rebellion to the Canadian Code. More research is required here on the New Zealand and Queensland situations, although the deployments of the criminal law against Maori resistance in 1883 and the perceived challenge to the governing hegemony in Australia by the emergence of a political party associated with organized labour are suggestive.[83]
The codes, in aiming to extend the rule of law as a more legitimate modern form of authority, did represent progress on earlier colonial forms of authority. But they also made criminal law interventions more pervasive. As we have seen, the Canadian Criminal Code was closely associated with defence, public ordering, and development agendas and related ‘nation-building’ initiatives such the North West Mounted Police, the Indian Acts and the Department of Indian Affairs. The challenges of self-government, of asserting authority and the rule of law, of dealing with pluralism and the devolution of treaty obligations, placed dominions such as Canada and New Zealand in the position of surrogate imperial powers within their own jurisdictions. The Queensland Code, a reflection of decentralized federal jurisdiction over criminal law could not be linked to such national agendas, but as we have seen, political ordering was nonetheless a prominent theme and the connections between Griffith’s constitutional work on federalism and his codification are suggestive.[84] Some of the Queensland provisions around public expression and criminal liability of state actors reflect what J.F. Stephen himself once described as a political shift from the traditional presumption of political deference premised on rulers as social superiors to recognition of a modern Lockean premise of popular sovereignty where governments are regarded as delegated agents of the people.[85] However, other provisions reflect the expansion of judicial supervision over the political sphere. Stephen’s own codification of political offences, largely adopted in all three Codes reflected the political sensibilities of Burke more than Locke.
Bentham was a political theorist as well as a law reformer. His identification of the centrality of criminal law reform to the regulation of social and sovereign relations, and the modernizing impulses associated with codification (more effective rule of law, the associated supporting institutions, and promotion of attitudes of deference to the common obligations of citizenship), resonate with issues debated by contemporary political and social theorists as well as by historians interested in the development of the modern state. Weber’s notion of formal legal rationality has conceptual value in moving analysis of such developments beyond uncritical liberal narratives about the victory of the rule of law over discretionary authority and negative Marxist reductionism that relegates everything to the imperatives of the late capitalist state and imperialism. While these various theories mean different things by modernization and modern forms of power, the positive as well as the more ominous implications of law-related developments such as codification are arguably best captured and deconstructed by recent historical work on moral regulation and modern state formation.[86] This suggests a broader relevance of these criminal law codifications. Perhaps most importantly for legal historians, the examination of these criminal law reforms in Canada, New Zealand, and Queensland reveal that they were not isolated backwaters but were connected to larger developments, their parallel and contemporaneous experiences suggesting the rich potential for further comparative research.
[*] Barry Wright, Professor of Law and Criminology, Carleton University. I am grateful to Desmond Brown, Lindsay Farmer, Keith Smith, and to the participants at the Legal History Seminar Series, University of Toronto for their comments on earlier versions of this research.
[1] A brief comparison of early codifications influenced by R.S. Wright and J.F. Stephen is found in M.L. Friedland, “Codification in the Commonwealth: Earlier Efforts” (1990) 2 Criminal Law Forum, 145. A comprehensive look at the influence of the Queensland code in other British jurisdictions is found in Robin S. O’Regan, “The Migration of the Griffith Code” in O’Regan, New Essays on the Australian Criminal Codes (Sydney: Law Book, 1988).
[2] Bruce Kercher, An Unruly Child: A History of Law in Australia (St Leonards NSW: Allen and Unwin, 1995), 204-5. On the emerging reaction to the dominant modern paradigm of local “micro-histories” and claims of uniqueness that characterise the “progressive teleologies of nationalism” by some historians –see eg., C.A. Bayly, The Birth of the Modern World, 1790-1914 (London, 2004); Prasenjit Duara, Rescuing History from the Nation (Chicago,1995); G. Bouchard, The Making of Nations and Cultures in the New World: An Essay in Comparative History (Montreal and Kingston, 2008).
[3] Lindsay Farmer, “Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833-45” (2000) 18 Law and History Review, 397 at 400 (hereafter Farmer).
[4] Farmer, K.J.M. Smith, Lawyers, Legislators and Theorists: Developments in English Criminal Jurisprudence, 1800-1957 (Oxford: Clarendon, 1998) (hereafter Smith). See also Michael Lobban, The Common Law and English Jurisprudence, 1760-1850 (Oxford: Clarendon, 1991).
[5] See eg., William Blackstone, Commentaries on the Laws of England (1765-9 repr. Chicago: University of Chicago Press, 1966), Jeremy Bentham, A Comment on the Commentaries and a Fragment on Government (1776) ed., J.H. Burns and H.L.A. Hart (London: Athlone, 1977), An Introduction to the Principles of Morals and Legislation (1789) ed., Burns and Hart (London: Athlone, 1970). See in particular Smith, 9 for a comprehensive examination of debates around the reform of substantive criminal law doctrine which informs this summary.
[6] See Smith, 10-12; also S. Milsom, “The Nature of Blackstone’s Achievement” (1981) 1 Oxford Journal of Legal Studies, 1; D. Kennedy, “The Structure of Blackstone’s Commentaries” (1979) 28 Buffalo Law Review, 205.
[7] Smith, 11. See also generally, Lobban, note 4 above; R. Cross, “Blackstone v. Bentham” (1976) 92 Law Quarterly Review, 516; H.L.A. Hart, “The Demystification of Law” in Hart ed., Essays on Bentham: Jurisprudence and Political Theory (Oxford: Clarendon, 1982), 21.
[8] Smith, 20, 28-9.
[9] Farmer, 423.
[10] Professional policing regularized surveillance and crime prevention and transformed law enforcement. The growing regular presence of lawyers in the criminal trial had a significant impact on the complexity of evidence and the role of other trial participants, and their role was entrenched by the Prisoner’s Counsel Act, 1836 (6&7 Wm.IV, c.114). The penitentiary became the primary form of punishment as sentences of imprisonment replaced the automatic death sentence for felony convictions and its discretionary adjunct of conditional pardons, where reprieved convicts were given secondary punishments such as transportation. On the debate over Bentham’s influence see eg., S.E. Finer, “The Transmission of Benthamite Ideas, 1826-1839” in G. Sutherland ed., Studies in the Growth of Nineteenth Century Government (London, 1972); H. Benyon, “Mighty Bentham” (1981) 2 Journal of Legal History, 62. On the parliamentary debates see eg., R. McGowan, “The Image of Justice and Reform of the Criminal Law in Early Nineteenth Century England” (1983) 32 Buffalo Law Review, 89.
[11] See Smith, 361, 364. James Mackintosh’s 1819 committee that paved the way for Peel’s consolidations avoided the judges but they were routinely consulted on subsequent criminal law reforms (see Smith, 56-63). See also Desmond Brown, The Genesis of the Canadian Criminal Code of 1892 (Toronto: University of Toronto Press, 1989), 15-18 (hereafter Brown, 1989).
[12] See eg., H.W. Arthurs, Without the Law: Administrative Justice and Legal Pluralism in Nineteenth-Century England (Toronto: University of Toronto Press, 1985). The wider economic relations engendered by industrialization and the breakdown of traditional cultural affiliations in the face of the promotion of larger identities and wider citizenship formation perhaps meant such pluralism was less of an obstacle in 19th century Britain, although indigenous customs and local innovation likely made it more of a factor in colonial settings –see eg., John MacLaren, A.R. Buck and Nancy E. Wright, Despotic Dominion: Property Rights in British Settler Societies (Vancouver: UBC Press, 2005); P. Karsten, Between Law and Custom: The High and Low Legal Cultures on the Lands of the British Diaspora-The United States, Canada, Australia, and New Zealand, 1600-1900 (New York: Cambridge University Press, 2002).
[13] See Smith, 136-8; Farmer, 404-5; see also Michael Lobban, “How Benthamic Was the Criminal Law Commission?” (2000) 18 Law and History Review, 427; Lobban, note 4 above, chapter 7.
[14] Stephen later provided an extended defence of this approach, after examination of the comprehensive Indian Penal Code and Lord Chief Justice Cockburn’s scathing critique of the Draft English Code --see J.F. Stephen, A History of the Criminal Law of England, Volume 3 (London: Macmillan, 1883), 347-52.
[15] Smith, 143-50; see also R. Cross, “The Making of English Criminal Law 6: Sir James Fitzjames Stephen” 1978 Criminal Law Review, 652
[16] Macaulay served from 1835-7, Amos, one of the original English Criminal Law Commissioners along with John Austin, returned to help produce the final 1845 digest, served from 1837-42, and J.F. Stephen, the son of the Colonial Office Undersecretary, served from 1869-72--see K.J.M. Smith, “Macaulay’s Utilitarian Penal Code: An Illustration of the Accidental Function of Time, Place and Personalities in Law Making” in W.M. Gordon and T.D. Fergus eds., Legal History in the Making (London, 1991); K.J.M. Smith, James Fitzjames Stephen: Portrait of a Victorian Rationalist (Cambridge, 1988), chapter 4. See also E. Stokes, The English Utilitarians and India (Oxford, 1959).
[17] Quoted in Smith, 139. Smith recounts later commentators at 140, who generally characterize it as historically unburdened legislation that fused Benthamite clarity with Burkean pragmatism. See also R. Cross, “The Making of English Criminal Law 5: Macaulay” [1978] Criminal Law Review, 519.
[18] Quoted in Elizabeth Kolsky, “Codification and the Rule of Colonial Difference: Criminal Procedure in India” (2005) 23 Law and History Review, 631 at 634.
[19] Graham Parker, “The Origins of the Canadian Criminal Code” in D.H. Flaherty ed., Essays in the History of Canadian Law, Volume 1 (Toronto: University of Toronto Press, 1981), 251 (hereafter Parker).
[20] Parker, 252; “Some Considerations Preliminary to the Preparation of a Penal Code for the Crown Colonies, 20 May 1870” Public Record Office, Colonial Office Records, CO 42 vol. 885.
[21] Wright questioned Macaulay’s heavy reliance on illustrations but his main point of departure was to abandon Macaulay’s simple concept of subjective liability, supplementing intent with recklessness and negligence (objective) fault requirements for certain offences--see Smith, 151-2. See also, Friedland, note 1 above, M.L. Friedland, “R.S. Wright’s Model Criminal Code: A Forgotten Chapter in the History of the Criminal Law” (1981) Oxford Journal of Legal Studies, 307 and on the situation in Jamaica during this period see R.W. Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford, 2005).
[22] See generally Friedland, Ibid.; Robin S. O’Regan “Sir Samuel Giffith’s Criminal Code” (1991) 7 Australian Bar Review, 141 (hereafter O’Regan, 1991); H.F. Morris, J.S. Reid, Indirect Rule and the Search for Justice (Oxford, 1992), 119-29.
[23] Kercher, note 2 above, 204-5. Kolsky, note 18, 632 also notes that the framework of empire has been neglected in studies of codification, in which lawmakers in distant geographical locations routinely cited each other’s work. See also Wright, note 30 below on the migration of political and legal personnel (Chief Justice Forbes, Judge Willis, Lieutenant Governor George Arthur) between the Canadian and Australian colonies and parallel controversies in the 1820’s and 30’s. On MacGregor’s influence see O’Regan, 1991, 142, 144.
[24] On the issues around indigenous input and Indian as a colonial laboratory for an imperial experiment see Kolsky note 18 above. See also eg., Radhika Singha, A Despotism of Law: Crime and Justice in Early Colonial India (Delhi: Oxford University Press, 1999); Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: University of Michigan Press, 2003).
[25] Calvin’s Case (77 ER 377) sought to clarify, among other things, questions of allegiance and the legal status of subjects and aliens in territories claimed under the Crown’s sovereignty, and came to be relied upon to determine the rights and obligations of subjects and others as the first British Empire took shape, although it was qualified by the view held in the American colonies (including Nova Scotia) which suggested that English law after 1497 was not applicable unless expressly adopted by charter or local legislative or judicial recognition. For a more detailed look at this complex area in British North America, see eg., F.M.Greenwood and B. Wright eds., Canadian State Trials Volume One: Law, Politics and Security Measures, 1608-1837 (Toronto: University of Toronto Press, 1996), 11-22.
[26] Quebec Act, 1774 (14 Geo.III c.83). Upper Canada legislation in 1800 (40 Geo.III c.1) clarified confusion over that colony’s reception date, between 1774 when the territory was part of Quebec and 1791 when it was created as a separate colony, specifying September 1792 (the date when the legislature first met) as the applicable date. See also the New South Wales Act, 1823 (4 Geo.IV c.96) and the Australian Courts Act, 1828 (9 Geo.IV c.83).
[27] See note 12.
[28] Brown, 1989, 42, 71.
[29] These matters are examined comprehensively in the Canadian State Trials series, notes 25 above and 43 below.
[30] See Ibid and Wright, “Libel and the Colonial Administration of Justice in Upper Canada and New South Wales c.1825-35” (forthcoming in B. Berger, H. Foster and A. Buck eds., Legal History in Canada, Australia and New Zealand: Comparative and Contextual Perspectives); John McLaren, “The Judicial Office ‘Bowing to no Power but the Supremacy of Law:’ Judges and the Rule of Law in Colonial Australia and Canada, 1788-1840” (2003) 6 Australian Journal of Legal History, 177; Paul Romney, “From Constitutionalism to Legalism: Trial By Jury, Responsible Government and the Rule of Law in Canadian Political Culture” (1989) 7 Law and History Review, 130; David Neal, The Rule of Law in Penal Colony: Law and Power in Early New South Wales (Sydney: Cambridge University Press, 1991); J.M. Bennett, Lives of the Australian Chief Justices: Sir Francis Forbes, First Chief Justice of New South Wales, 1823-37 (Sydney: Federation Press, 2001).
[30] Farmer, 423-4. Liberal reform was not monolithic; “libertarian” Whigs seldom shared the utilitarian reformers enthusiasm for codification, in part because of their failure to grasp its possibilities as a check on the powers of the state, although Thomas Macaulay became a notable exception.
[31] Parker, 252; Brown, 1989, 60 The Confederation Debates in the Province of Canada 2nd ed., Peter B. Waite ed., (Montreal: McGill Queen’s Press, 2006). See also Parliamentary Debates on Confederation (Quebec: Hunter Rose 1865). Unlike the Australian federation debates, many of the negotiations leading to British North America Act, 1867 were “closed sessions.” As Brown (1989, 59-60) points out, the views expressed at the closed conferences in Charlottetown, Quebec and London are not known, but the criminal law proposal remained unchanged in each successive draft, and there is no indication of opposition to it. The British North America Act gave the Dominion Parliament jurisdiction over criminal law and procedure (30&31 Vict., c.3 c.91), but the actual constitution of the courts of criminal jurisdiction was left to the provinces. As the Province of Canada union, legal officials retained their positions, existing laws and courts continued until amended by the competent federal or provincial authority.
[32] The Confederation Debates, Ibid., 24-25.
[33] See The Confederation Debates, Ibid. On the legal responses to the Patriot and Fenian invasions see F.M. Greenwood and B. Wright eds., Canadian State Trials Volume 2: Rebellion and Invasion in the Canadas, 1837-9 (Toronto: University of Toronto Press, 2002); B. Wright and S.B. Binnie eds., Canadian State Trials Volume 3: Securing the Dominion, 1840-1914 (forthcoming).
[34] While the Act of Union provided that all the laws of the two jurisdictions were to remain in effect, Lord Sydenham’s administration moved quickly to correct this double standard of justice by repealing all previous criminal legislation and consolidating the criminal law in both provinces, resulting in substantial reform in Quebec(1840) 3&4 Vict. C.35 s.46 Imperial; (1841) 4&5 Vict., cc.24, 25,26 &27 Province of Canada. This was followed by coordinated consolidations in 1859 and 1860--see Brown, 1989, 56-7, 86-89.
[35] Brown, 1989, 84-5. Badgley also drew upon the efforts of Edward Livingston in Louisiana and David Dudley Field in New York with a bill on criminal procedure, a departure from the usual Canadian pattern of avoiding American models.
[36] Indictable Offences Act (1849) 12 Vict., c.29 NB. See generally Brown, 1989, 74-8. (Criminal law in Prince Edward Island and British Columbia was less advanced).
[37] (1869) 32 &33 Vict. c.18-26 Canada. Department of Justice officials and Judge Gowan (who had corresponded with Greaves) were put under tight time-lines and Macdonald opposed significant changes to the English text--see Brown, 1989, 92-7. See also D.H. Brown ed., The Birth of a Criminal Code: The Evolution of Canada’s Justice System (Toronto: University of Toronto Press, 1995), 28 (hereafter Brown, 1995).
[38] Brown, 1995, 29.
[39] For instance, the journal was to pay much attention to Stephen’s draft English Code, which was contrasted with Macaulay’s effort, while David Dudley Field’s codification of New York criminal law received only passing and dismissive critical mention–see Parker, 253-5. See also Brown 1989, 70.
[40] Between 1875 and 1880 fifty additional federal criminal laws were passed, seven of which were amending--see Brown, 1995, 31; Brown, 1989, 103-6.
[41] See Brown, 1989, 106-118; 1995, 31. Gowan visited London again in 1889 and renewed his advocacy of the Stephen Code after Thompson’s own visit there. Burbidge, borrowing heavily from Stephen’s digest, had drafted a code of indictable offences to accompany the 1886 Revised Statutes, published as “A Digest of the Criminal Law of Canada (Crimes and Punishment) Founded by Permission on Sir James Fitzjames Stephen’s Digest of the Criminal Law” (1889).
[42] Parker, 257-9; Brown, 1989, 119-23; Brown, 1995, 32.
[43] Parker, 260; Brown, 1989, 120-2; Brown, 1995, 33.
[44] Parker, 258.
[45] See Brown, 1995 which reproduces the Department of Justice records and Parker, 261-4.
[46] The first six titles were the same (the English code had one further title on procedure while the Canadian bill added several more).
[47] Brown, 1989, 123-4 (a larger proportion of procedural matters, about 70%, are based on earlier Canadian sources).
[48] Brown, 1995, 34-5; Parker, 265-9. The responses were largely technical, reflecting little by way of principled, theoretical or public policy concerns such as effective deterrence or civil liberties. Parker notes submissions from moral reformer D.A. Watt (resulting in further provisions to protect young women from sexual predators) and publisher John King (father of the future Prime Minister, whose suggestions concerning libel, defamation, and freedom of the press were not incorporated).
[49] Parker, 271; Brown, 1995, 37-41.
[50] See Parker, 273-6. Taschereau attacked the failure to define liability and the defences and supplemented paraphrasing of the Cockburn critique with nitpicking critical annotations of the Code. Sedgewick defended the Code in a long memo in February 1893, adding that law makers were apprised of Cockburn’s criticisms, and that the drafters agreed with Stephen’s view of impossibility of excluding the common law.
[51] See Stephen’s Title II (Parts V-VII) “Crimes Against the Public Order, Internal and External and the 1892 Code Title II (Parts IV-VIII). These provisions are explored in detail in D.H. Brown and B. Wright, “The Security Provisions of the 1892 Canadian Criminal Code” in Wright and S.B. Binnie eds., Canadian State Trials Volume 3: Securing the Dominion, 1840-1914 (forthcoming).
[52] See W.W. Pue, “Education the Total Jurist” (2006) 8 Legal Ethics, 208 at 211. Pue notes that colonial lawyers articulated professionalism in ways not deemed necessary in Britain itself, assuming a sort of “white man’s burden” in modelling the attributes of modern citizenship and national identity fully subject to the rule of law, helping to break down traditional, communal, sectarian and ethnic affiliations and other centrifugal forces.
[53] J. Finn, “Codification of the Criminal Law: The Australasian parliamentary experience” in B. Godfrey and G. Dunstall eds., Crime and Empire 1840-1940: Criminal Justice in Local and Global Context (Cullompton UK: Willan, 2005, 224 at 35-6). See also, Stephen White, “The Making of the New Zealand Criminal Act of 1893: A Sketch” (1986) 16 Victoria University Wellington Law Review, 361 and Taylor note 75 below on the failed efforts in Victoria, New South Wales and South Australia.
[54] “Memorandum (Alexander Johnston, W.S. Reid, 8 June 1883) attached to the Criminal Code Bill, 1883 reproduced in the 1908-31 Reprint of the New Zealand Statutes Vol. 2, 176-81.
[55] Ibid., 225.
[56] Finn, note 54, 226-7, 236.
[57] See G. Palmer, New Zealand’s Constitution in Crisis (Dunedin, 1992); 1916 Sedition Trials: The Maoriland Worker (Wellington, 1917).
[58] Louis Hartz, The Founding of New Societies (New York: Harcourt Brace, 1964).
[59] This extends to the symbolic formal styling of the respective federations as “Dominion” and the English Revolution inflected “Commonwealth.” In addition to criminal law, the Dominion of Canada assumed broad jurisdiction over “Peace, Order and Good Government” and residual powers whereas the Commonwealth of Australia was limited to specified enumerated powers. Other divergences included the styling of the lower federal house (Canada retained the term Commons), an elected upper house, autonomy of Lieutenant Governors from the Governor-General, and domestic procedures for constitutional amendment (unlike Canada, where the UK Parliament retained final authority until 1982). The Australian High Court avoided the Canadian plight of easy appeals to the JCPC (which transformed the federal balance of powers) with a stringent leave requirement from the Australian High Court, and as the first chief justice, Griffith endeavoured to limit constitutional appeals out of the country.
[60] George Brandis, “Griffith and Early Colonial Liberalism in Queensland” in M. White and A. Rahemtula eds., Sir Samuel Griffith: The Law and the Constitution (Sydney: Lawbook, 2002), 112 at 115. See more generally, N. Aroney, “Griffith’s Vision of Australian Federalism” in White and Rahemtula, 180; P. Botsman, “Commentary on the Draft Constitution by Andrew Inglis Clark” in White and Rahemtula, 126; Roger B. Joyce, Samuel Walker Griffith (Brisbane: University of Queensland Press, 1984), 185-289; Kay Saunders “Sir Samuel Griffith and the Writing of the Constitution” in J.M. Macrossan, Saunders, S. Berns et.al., Griffith, the Law and the Constitution (Brisbane: Royal Historical Society of Queensland, 1998), 21.
[61] Although obliged to retreat from an active role, Griffith maintained an active interest in federation and constitutional matters during the time of the drafting of the Queensland Code –see eg., S. Griffith, Notes on Australian Federation: Its Nature and Probable Effects (1896), Notes on the Draft Federal Constitution Framed by the Adelaide Convention of 1897 (1897). For the Canadian dismissal of “foreign” examples see notes 40 and 46 above.
[62] See S.W. Griffith, “A Digest of the statutory criminal law in force in Queensland on the first day of January, 1896 (Brisbane: Government Printer, 1896) (hereafter Digest); S.W. Griffith, A Draft Code of Criminal Law, proposed for the Government of Queensland (Brisbane: Government Printer, 1897) CA 89-1897 (hereafter Draft); “Report of the Royal Commission on a Code of Criminal Law Volume 49 Legislative Council Journals, 103-337 CA 38-1899 (Brisbane: Government Printer, 1899) (hereafter Report).
[63] Introductory letter, 1 June 1896 p.viii (Digest).
[64] Draft.
[65] O’Regan, 1991. See Introductory letter, 29 October 1897, p. iv (Draft), which quotes extensively from Lord Chief Justice Cockburn’s 12 June 1879 condemnation of the bill’s failure to fully codify defences.
[66] See esp. Robin S. O’Regan, “Griffith and the Queensland Criminal Code” in M. White and A. Rahemtula eds., note 61, 77 (hereafter O’Regan, 2002), at 78; Alberto Cadoppi, (K.A. Cullinane trans.), “The Zanardelli Code and the Codification in the Countries of the Common Law (2000) 7 James Cook University Law Review, 116 (hereafter Cadoppi) at 132-4; See also more generally, O’Regan, 1991 and “The Migration of the Griffith Code” note 1 above, 103; H.T. Gibbs, the Queensland Criminal Code: From Italy to Zanzibar” Address at the Opening of the Supreme Court Exhibit at the 16th Congress of the International Academy of Comparative Law, 19 July 2002.
[67] Introductory letter 29 October 1897, p.vii (Draft).
[68] Cadoppi, 134. See also Gibbs, 8.
[69] O’Regan, 2002, 78.
[70] “...no part of the Draft Code has occasioned me more anxiety, but I may add that I regard no part of the work with more satisfaction.” Introductory letter, 29 October 1897, p.x, (Draft).
[71] Cadoppi, 137-40, 154. Cadoppi notes that Griffith was likely well aware of Macaulay and Wright, but speculates at 138, “ Probably he judged those which had been elaborated as too dated to represent useful instruments of acknowledgement ...and perhaps he himself wanted to rise to the level of fame of those codifiers of the past, so famous in the world of the common law, without taking advantage of their efforts.”
[72] Cadoppi’s cosmopolitan characterization appears to flatter Griffith’s achievement but it contributes to a parochial view of the Queensland Code divorced from careful consideration of colonial and English codification efforts. Gibbs (note 67, 11) was closer to the mark in recognizing the influence of the Italian Code but warning that the Queensland Code’s cosmopolitan qualities can be exaggerated.
[73] See Lobban, note 4, 120-55.
[74] Finn, note 54 above, 229-30
[75] See Finn, Ibid., O’Regan, 1991, 147; Greg Taylor, “The Victorian Criminal Code” [2004] UQLawJl 7; (2002) 23 The University of Queensland Law Journal, 170
[76] As O’Regan, 2002 points out. the Queensland Code, by way of MacGregor and Ehrhardt, influenced codes throughout Africa as well as Cyprus and Palestine. See also O’Regan, “The Migration of the Griffith Code” note 1, 103-121.
[77] Cadoppi, 142 alludes to this in his overview of Griffith’s offences against the state and noting that Zanardelli’s Italian Code had “Magna Carta” like constitutional significance, only to be dismantled by Mussolini in 1930.
[78] See (all references to the Draft Code) Part 2 “Offences Against the Public Order” c.6 s.39-42, c.7 s.45-54 sedition, c.9 s.62-68 unlawful assemblies, breaches of the peace, balanced by the new offence set out in c.10 s.78 interference with political liberty. Part 3 “Offences against the Administration of Law, Justice and Public Authority” include c. 16 s. 127&128 manipulation of witness and c. 20 offences against public authority including s.205 refusal of public official to perform a duty and s.211 disobedience of a lawful order. As well, Part 5 “Offences Against the Person” includes c.33 Offences against Liberty including s.361 deprivation of liberty and s.365 threats.
[79] See s. 212-14 offences relating to religious worship, Griffith explaining that he excluded such common law offences “as are manifestly obsolete or inapplicable to Australia.” See Reid Mortensen, “Blasphemy in a Secular State: A Punishable Sin” [1994] UNSWLawJl 15; (1994) 17 University of New South Wales Law Journal, 409.
[80] Griffith sets out a hierarchy of “absolute protection” for parliament, public inquiries and judges, “protection” for reports of matters of public interest, fair comment and truth and ‘qualified protection” for excuses, good faith, relevancy, public benefit and questions of fact. Griffith cut through the common law accretions and elaborated the law well beyond Stephen drawing from his work on the comprehensive 1889 Defamation Code (which included tort provisions). See Sandra Berns, “Codifying Passion: the Griffith Defamation Code” in Macrossan et.al., note 60 at 35. Many of these matters were raised in King’s criticism of the Stephen-based Canadian provisions -see note 49 above.
[81] Griffith, Introductory Letter 29 October, 1897 p.x, Draft. See Part 2, c.8 s.55-61 offences against executive and legislative powers. These include s.55 (interference with governor or ministers -Italian Code), s.56 (disturbing the legislature-New York Code), s.59 (refusing to appear or give evidence before legislature/legislative committee-New York Code), s.60 (bribery of legislators-New York Code). See also Part 3, c.13 s.87-97 corruption and abuse of office, c.14 s.98-117 corrupt and improper practices at elections, c. 15 s118 trafficking offices in the public sector and Part 5 defamation provisions, s.371-95.
[82] One of the best-known privilege powers was the protection of members’ freedom of speech which precluded actions in the courts for comments in the legislature, and the other side to this power, reflecting Parliament’s ancient and residual function as a court, was that Parliament could also discipline members, including expulsion and imprisonment for parliamentary offences such as contempt. See eg., F.M. Greenwood and B. Wright, “Parliamentary Privilege and the Repression of Dissent in the Canadas” in Greenwood and Wright eds., note 25, 409. The uncertain boundaries between the legislative and judicial spheres in this area is still a contested matter as illustrated by the Queensland’s government’s 2006 bill to repeal section 57 of the Code, to eliminate the offence of lying to the legislature.
[83] For examination of the tensions between the rule of law and sovereignty highlighted by insurgency within the modernizing colonial state see Hussain, note 24.
[84] “Post colonialist” historians who have examined contradictions between liberal rule of law and aboriginal subjugation in the Queensland criminal courts suggests similar themes -see eg., Sean Gouglas and John C. Weaver, “A Postcolonial Understanding of Law and Society: Exploring Criminal Trials in Colonial Queensland” (2003) 7 Australian Journal of Legal History, 231.
[85] J.F. Stephen, A History of Criminal Law of England, Vol.2 (London, Macmillan, 1881), 299.
[86] The historical work on ‘state formation’ reassesses 19th century institutional developments such as such as professional police, the penitentiary, public education and health from the point of view of moral regulation, expert knowledges and identity formation, that break down traditional affiliations and promote more compliant modern citizenship--see eg., P. Corrigan and D. Sayer, The Great Arch: English State Formation as Cultural Revolution (Oxford: Blackwell, 1985). Although this work is postmodernist-influenced there is debate amongst post-modernists about the centrality of law in questions about modern forms of power, sparked by Michel Foucault suggestion that scholars must “eschew Leviathan” in the study of modern power (referring to Thomas Hobbes’s claim about the omnipotent potential of the state to form the will of its citizens to achieve a lasting ordered peace). From this perspective Mitchell Dean criticizes the state formation historians as overly pre-occupied with the state and ‘juridically discursive’ conceptions of power that privilege law and ultimate expression in state repression -see Critical and Effective Histories: Foucault’s Methods and Historical Sociology (London: Routledge, 1994). For a critique see B. Wright, “Quiescent Leviathan? Citizenship and National Security in Late Modernity” (1998) 25 Journal of Law and Society, 213.
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