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Some Sources of Modern English Criminal Legislation

  • L. Radzinowicz and P. H. Winfield

Extract

One of the salient points made in Dr. Radzinowicz's article is that the government publications collectively and inaccurately known as ‘Blue books’ have been almost totally ignored in our histories of Criminal Law. But his point is equally valid with respect to the history of many other branches of the law. One reason for this neglect is the inadequate bibliography of these historical sources. No doubt there has been some improvement in this respect during the last generation, but my own experience in using them has been that, except for the series styled ‘British and Foreign State Papers’ and the Calendars of some ancient state documents, their indexing is very imperfect. Yet the wealth of historical material in them is inexhaustible. What Maitland said of the unprinted sources of legal history might be applied to the publications that have been printed by government authority.

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1 In England there is no comprehensive catalogue of the general works relating to criminal science (books, pamphlets, articles) like that compiled in the United States by Kuhlman, A. F., ‘A Guide to Material on Crime and Criminal Justice,’ 1929; and Alver, Dorothy C., ‘Bibliography of Crime and Criminal Justice,’ 1934. A great amount of information on English material can, however, be found in the catalogues of the British Musem, of the London Library, and in that published by Sweet & Maxwell, ‘Legal Bibliography,’ 3 vols, Valuable references can be traced in some of the catalogues of the various libraries of the Inns of Court. A useful publication is that compiled by SirCumming, John, ‘A Contribution towards a Bibliography dealing with Crime an4 Cognate Subjects,’ 3rd edition, London, 1935.

2 See, on these works, ProfessorWinfield, P. H.'s book, ‘The Chief Sources of English Legal History,’ 1925, pp. 324330, and the appropriate chapters in ProfessorHoldsworth, W. S.'s ‘History of English Law,’ particularly in Vols. V, VI.

3 See again Winfield, ibid., p, 146, and Holdsworth, ibid., Vol. XII.

4 For the origin of this curiously uninstruotive name Mr. Hale Bellot remarks that the bibliography of the printed versions of papers which came into the possession of both Houses during this period is … ‘confused in the first place by the popular use of the terms, “blue book” and “white paper,” which are merely descriptive of a physical difference in Parliamentary Papers and have no further bibliographical significance. They mean no more than a paper which is fat and one which is thin. When a book is so thick that you must sew instead of stitching, then you must glue the back, and therefore you must have something to cover the glue and the stuff that is there; and it so happened that the colour chosen for that cover was blue.’ See Bellot, H. Hale, ‘Parliamentary Printing, 1660–1837’; Bulletin of the Institute of Historical Research, Vol. XI, No. 32, 11, 1933, p. 85.

5 See, on this subject, Redlich, , ‘Recht und Technik des Englischen Parlamentarismus,’ Leipzig, 1905, pp. 443482 (not having at hand the English translation of Professor Redlich's authoritative book published in 1908, in three volumes, with an important introduction by Sir Courtenay Ilbert, we refer to the German original edition); SirMay, T. Erskine, ‘Parliamentary Practice’ (13th ed., 1924); ‘Manual of Procedure in the Public Business of the House of Commons,’ prepared by the Clerk of the House, last edition; Todd, A., ‘Parliamentary Government in England,’ 1887, Vol. I; Bellot, H. Hale, ‘Parliamentary Printing, 1660–1837,’ in the Bulletin of the Institute of Historical Research, Vol. XI, No. 32, p. 85; ‘Bibliographical Aids to Research’; British Parliamentary Papers: Catalogues and Indexes; ibid., Vol. XI, No. 31, June, 1933, p. 24; Guide to the Principal Parliamentary Papers relating to the Dominions, 1812–1911, Edinburgh, 1913, Preface containing a note prepared by the late Mr. Austin Smyth, Librarian to the House of Commons (on the origin of Parliamentary Papers); Report from the Select Committee on Publications of Printed Papers, 1837, 286, Vol. XIII; Report from the Select Committee on Publications, 1908, 358, Vol. X (Evidence of Sir Courtenay P. Ilbert, 2000–2050); Report of the Departmental Committee on the Procedure of Royal Commissions, 1910 [Cd. 5235], Vol. LVIII, p. 371; Clokie, Hugh McDowall and Robinson, J. William, ‘Royal Commissions of Inquiry,’ 1937; Gerland, H. B., ‘Die Beziehungen zwischen dem Parlament und den Gerichten in England,’ Leipzig, 1928; Fromageot, H., ‘Etude sur les Pouvoirs des Commissions Politiques d'Enquête en Angleterre,’ Bulletin de la Societé de Législation Comparée, Vol. XXII, 18921893, p. 165; Moore, W. Harrison, ‘Executive Commissions of Inquiry,’ Columbia Law Review, Vol. XIII, 1913, p. 500.

6 ‘Public Bills and Reports of Committees’–writes H. B. Lees-Smith–‘form two clearly marked and definite groups; but there is no obvious dividing line between the Reports of Commissioners and Accounts and Papers.’ Lees-Smith, H. B., ‘A Guide to Parliamentary and Official Papers,’ 1924, p. 9.

7 Naturally this material is strongly influenced by the particular point of view of each of the great political parties fighting for power, and, therefore, when referring to it, we must always bear in mind the observations made by Maitland in connection with constitutional history. …‘Political struggles’–he says–‘are important, but chiefly because they alter the law. Constitutional history should, to my mind, be a history, not of parties, but of institutions, not of struggles, but of results; the struggles are evanescent, the results are permanent.’ Maitland, F. W., ‘The Constitutional History of England,’ Cambridge University Press, 1908, p. 537.

8 This material is to be found (together with the Bills and Standing Committee's Reports) in what is called the bound set of Parliamentary Papers. This collection comprises, since 1800, about 9.000 volumes. We have made use of the following series of catalogues: Catalogues of Parliamentary Reports, etc., 1696–1834 (1834, 626) (this volume contains also the most important reports published since 1696 and up to 1800 either in the Journals of the House of Commons or in the Series of Reports of the House of Commons, called the First Series of Reports); General Index to the Bills, Reports, Accounts, etc., 1801–1832 (1833, 737); General Index to Bills, Reports, Accounts, etc., 1832–1844 (1845, 396); General Index to the Bills, Reports, Accounts, etc., 1845–1850 (1850, 698); List of the Bills, Reports, etc., 1851, 629 (1851, Vol. LX); General Alpha betical Index to the Bills, Reports, etc., 1852–1899 (1909); General Alphabetical Index to the Bills, Reports, etc., 1900–1909 (1912, 351); General Alphabetical Index to the Bills, Reports, etc., 1910–1919 (1927, 169); General Alphabetical Index to the Bills, Reports, etc., 1920–1928–29 (1931, 8); List of the Bills, Reports, etc., for 1929–30 (1931, 181); for 1931–32 (1933, 119); for 1932–33 (1934, 171); for 1933–34 (1935, 134); for 1934–35 (1936, 136); for 1935–36 (1937, 167); for 1936–37 (1938, 166); for 1937–38 (1939, 180); for 1938–39 (1940, 198).

A collection of certain important Commissions of Inquiry on various matters has been published by P. S. King & Son, and comprises three volumes (1801 to 1900; 1901 to 1910; 1911 to 1920). A selective compilation referring only to Royal Commission Reports in the period 1860 to 1935 has been published under the auspices of the Harvard University Committee on Research in the Social Sciences under the title, A Finding-List of British Royal Commission Reports, 1860 to 1935, compiled by Mr. B. L. Gabine, Harvard University Press, Cambridge, Mass., 1935. A catalogue of the most important Parliamentary Papers relating to the Dominions in the period 1812–1911 has been published by Margaret J. Adem, John Ewing, James Munro, partially subsidised by the Bert Fund at the disposal of Oxford University. See Guide to the Principal Parliamentary Papers relating to the Dominions, 1812–1911, Edinburgh, 1913.

However, the only scientific compilation of Blue Books, dealing with a particular subject, known to us is that by Harold Temperley and Lilian M. Penson, published at the Cambridge University Press, and entitled, A Century of Diplomatic Blue Books, 1814–1914. Lists edited, with historical introductions.

9 ‘As the eye follows the volumes of Parliamentary Debates on the shelves of the House of Commons Library’–writes MrLees-Smith, H. K. in his ‘Guide to Parliamentary and Official Papers’ (Oxford University Press, 1924, p. 14)–‘eight penturies of English history unfold themselves before one, for the record begins in the year 1066 and closes with the previous day's parliamentary business. The volumes up to 1803 are entitled ‘The Parliamentary History,’ and are not an actual report of debates, but a collection of records of Parliamentary proceedings made by Mr. Hansard in 1806 from original sources. They are still useful for reference, although subsequent historical research has done much to ampliiy and supplement them.’ The Parliamentary Debates proper begin in 1803, and are divided into five series. Up to 1908 the debates of both Houses are published together, but since 1909 a separate series of volumes has been published for each House. The Parliamentary History comprises 36 volumes. First Series of Parliamentary Debates (1803–1820), 41 volumes; Second Series (1820–1830), 25 volumes; Third Series (1830–1891), 350 volumes; Fourth Series (1899–1908), 77 volumes; Fifth Series (1909 up to March, 1942), 500 volumes.

10 English translation from the revised fifth German edition, London, 1930, p. 7.

11 ‘A History of the English People,’ 1924, Vol. I, Preface, pp. xxi. On this work Professor J. H. Clapham expresses the following opinion: ‘…A History which I regret that an Englishman has not written, because our social and political postures have never been so well drawn against an adequate economic background’: ‘An Economic History of Modern Britain,’ Cambridge University Press, 1926, Vol. I, p. ix.

12 As far back as 1856 Kobert von Mohl spoke about the ‘Unermesslichkeit’ of the material of Parliamentary Papers and stressed their immense value. ProfessorRedlich, J., who in his treatise on the ‘Recht und Technik des Englischen Parlamentarismus’ (Leipzig, 1905) quotes this opinion, entirely agrees with it, and himself defines the collection of State Papers relating to Royal Commissions of Inquiry as ‘… gewaltiges, unschätzbares Material zur Erforschung der ökonomischen, rechtlichen, und sozialen Entwicklung Englands in 19 Jahrhundert…’ (ibid., p. 297).

13 Gustav Cohn, Parlamentarische Untersuchungen in England; Jahrbücher für Nationalökonomie und Statistik, Band XXV, 1875; Schriften des Vereins für Sozial- politik, Band XIII, 1877. Reproduced in his book, ‘Volkawirtchaftliche Aufsätze,’ Stuttgart, 1882, pp. 150.

14 See the interesting remarks made by De Franqueville, Comte in his book on ‘Le Gouvernement et le Parlement Britainques,’ 1887, Vol. III, pp. 372378.

15 Gerland, H. B., ‘Die Beziehungen zwischen dem Parlament und den Gerichten in England, Eine rechtsvergleichende Studie,’ Berlin und Leipzig, 1928, p. 94ff.

16 Gosnell, H. P., ‘British Royal Commissions of Inquiry,’ Political Science Quarterly, Vol. XLIX, 1934, pp. 84118.

17 Cole, A. H.'s Preface to a ‘Finding-List of British Royal Commissions Reports,’ Cambridge, Mass., 1935. Publication by the Harvard University Committee on Research in the Social Sciences.

18 Clokie, Hugh McDowall and Robinson, J. William, ‘Royal Commissions of Inquiry,’ Stanford University Press, 1937 (a book of 242 pages devoted entirely to this subject).

19 The collection of State Papers on economic matters has for a long time been thoroughly exploited by foreign scholars interested in English Economic History. For instance, Marx, Karl, in the very first edition of his work ‘Das Kapital’ (1867), made an extensive analysis of that material from 1848 onwards. So did Adolf Held in his pioneer work (unfortunately not completed) on English economic and social history. In this work, published posthumously by Knapp, G. F., ‘Zwei Bücher zur sozialen Geschichte Englands,’ Professor Held said: ‘In seinen Parlamentpapieren besitzt England ein unvergleichliches Quellenmaterial …’ See ibid.‘Zweitea Buch. Entwicklung der Grossindustrie,’ p. 391. A very important use of that information has also been made by the French scholar, Dr. P. Mantoux, in his book on ‘The Industrial Revolution in the Eighteenth Century,’ published for the first time in French about thirty-five years ago and afterwards translated into English.

20 Mr. and MrsWebb, Sidney in their book on ‘Methods of Social Study,’ 1932 (Chapter VII, ‘Royal Commissions and Committees of Enquiry as sources for the investi gator,’ pp. 142157), are not sparing in their critical observations on the defects of certain of these inquiries. But their remarks aim only at proving the point, with which we fully agree, that certain official investigations should not exclusively be based on one source of information, especially on that of oral evidence. In their concluding passage, however, the authors express the following favourable opinion: ‘Taken as a whole the massive array of British blue-books stands pre-eminent as a source of information about contemporary social conditions and contemporary public opinion, whilst some of the final reports are, in their constructive relation to legislative and executive activities, great state papers.’ Ibid., p. 166.

An interesting book, worth perusing even to-day, was published in 1849 by Smith, J. Toulmin, ‘Government by Commissions Illegal and Pernicious,’ etc. This book is a violent attack on the official investigations carried out by Commissions, as constituting a direct threat to the constitxitional structure of the State and the individual rights of the subject.

21 What increases still more the value of the information collected is the fact that very often Commissions of Inquiry are composed of members who are known to hold entirely opposite views on the subject they are called upon to investigate. In a debate on a resolution presented by Mr. W. Ewart in reference to the formation of Select Committees, Sir George Lewis made the following interesting observation: ‘If therefore Public Committees consisted wholly of impartial men their investigations would be most unsatisfactory. Strong partisans on each side were knowingly and advisedly chosen, in order that truth might be elicited from the conflict of opposite, and it might be interested, opinions. Indeed, in forming such committees the avowed object of them was to have different interests represented, and complaints were sometimes made that a Committee was unfairly constituted precisely because conflicting interests were not duly represented in it.’ See Parliamentary Debates, Third Series, Vol. CLXII, 1881, Col. 1012.

22 ‘The Government of England,’ 1912, Vol. I, p. 268. This opinion is fully confirmed by English students. SirIlbert, Courtenay writes in his book, ‘The Mechanics of Law Making,’ New York, 1914, p. 70: ‘Most of the important legislation in England is preceded by an official inquiry, and is based, more or less, on the reports and the recommendations of some commission or committee.’

Contemporary constitutional writers fully agree with that point of view. ‘The British Constitution has therefore developed a technique of public inquiry.… The fact finding function remains important, but more important still is the recommendation of remedies. Few years pass without at least half-a-dozen reports from Commissions and Committees, and most of these are in due course translated into legislation’: Jennings, W. Ivor, ‘Parliament,’ Cambridge University Press, 1939, pp. 201202.

23 SirTroup, Edward, Permanent Under-Secretary of State in the Home Office, 19081922, makes the following observations: ‘…Nearly every important measure of reform has been preceded by an inquiry by a Royal Commission or a Parliamentary or a depart mental committee, sometimes by several such inquiries’: ‘The Home Office,’ second edition, 1926, p. 38. Naturally, even if immediate legislative action is not taken upon the recommendations of a Commission of Inquiry, this does not mean that the Commission's work has been useless. The Government may abstain from action for various reasons. For instance, it may come to the conclusion that public opinion is not yet ripe for such a measure; it may decide that the recommendations of the Commission does not provide an adequate remedy. In this connection Lord Beaconsfield said in a Debate in the House of Lords: ‘My Lords, I do not think that there is anyone who more values the labours of Parliamentary Committees than myself. They obtain for the country an extraordinary masa of valuable information which probably would not otherwise be at hand, or available; and formed as they necessarily are of chosen men from the two most important bodies of the State, their Reports are pregnant with prudent and sagacious suggestions for the improvement of the administration of affairs.… But, my Lords, I never for a moment have maintained, nor do I know any personal or written authority that has maintained, that the Resolutions of a Committee of the House of Commons were infallible.…’ See Parliamentary Debates, Third Series, Vol. CCXXXV, 1877, Col. 1478.

It must also be borne in mind that even if a Government fully and entirely adopts the recommendations of a Parliamentary Committee this does not mean that it ceases to be responsible to both Houses for such action and all its consequences. It has been emphasised in Parliament that a too frequent use of commissions of inquiry may have an undesirable effect upon the political and executive initiative of the Government and upon its prestige, or even upon the independence of the Houses themselves. See on this point Disraeli's observations in Parliamentary Debates, Third Series, Vol. CLXI, 1861, Col. 1267, and Col. 1867–1868, and those made by Cobden, ibid., Vol. CLXXVI, 1864, Col. 1908.

24 Sir Evelyn Ruggles-Brise K.C.B. who for so many years was the Chairman of the Prison Commission for England and Wales and British delegate to the International Penal Congresses, said: ‘I had been greatly impressed with the singular ignorance that existed, both on the Continent and in the United States, of the character of British penal methods. … He [an Englishman who goes abroad] will find that where the English system is not known or is misunderstood, it is but little appreciated.’ ‘The English Prison System,’ 1921, pp. 11111.

25 Vol. I, p. 196. See also pp. 480 and 482, where there are two other brief references.

26 See Kenny, , ‘Outlines of Criminal Law,’ Chapters II, XXXIII, XXXIV. The only occasion on which Professor Kenny refers to a report on Criminal Law is when he quotes an opinion taken out of the ‘Explanatory Memorandum’ prefixed to the Drafts of a Criminal Code and Code of Criminal Procedure for the Island of Jamaica: ibid., pp. 33 and 239.

Pike, L. O., in his ‘History of Crime in England,’ 18731876, also makes practically no use of the Blue Books.

27 ‘Strafensystem und Gefängniswesen in England,’ Berlin, 1887, p. VII. See also Dr. Aschrott's later study in which he brings to the notice of the German students the development which took place in the English Penal System in the ten years following the publication of his first publication: ‘Strafen und Gefängniswesen in England wahrend des letzten Jahrhunderts. Eine Erganzung zu dem in Jahre 1887, erschienen Buche “Strafensystem und Gefängniswesen in England,”’ Berlin, 1896.

28 ‘English Prisons under Local Government,’ 1922, pp. 12, footnote 2, where they state that the ‘…extensive Parliamentary inquiries into Penitentiary Houses, Police and Prisons, between 1811 and 1835 afford … “the most useful material prior to 1835” (together with the works of John Howard, James Neild, and Sir Thomas Powell Buxton) as do … the voluminous Parliamentary Papers and Home Office Reports … after that date.’ And ibid., p. 111, where the authors refer to ‘the voluminous five successive reports of the House of Lords Committee on the State of Gaols and Houses of Correction, 1835, with their elaborate statistical returns and lengthy descriptions,’ and call this inquiry ‘the most comprehensive and the most searching survey of English and Welsh Prisons yet produced.’ The Duke of Richmond was the Chairman of that famous Committee.

29 In his note published in the Law Quarterly Review on the occasion of the setting up by the Faculty Board of Law in the University of Cambridge of a ‘Committee to consider the promotion of Research and Teaching in Criminal Science’ (which has since led to establishment by the University of a ‘Department of Criminal Science’), the Editor, Professor A. L. Goodhart, wrote: ‘It has frequently been a source of surprise to foreign students that no English University has a Professorship of Criminal Law, and that there is no central institution which is organized to deal with the valuable material to be found in the various reports and statistics which are published on this subject’: L. Q. R., Vol. LVI, 10, 1940, p. 462.

30 Catalogue of Parliamentary Papers, etc., 1696–1834, 1834, 626; Preface, p. III.

31 See on these modern trends in crime the interesting observations made by Hall, A. C.: ‘Crime in its relations to Social Progress,’ New York, 1901, p. 249.

32 ‘Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century,’ 1930, pp. 6269. See also SirWilson, Roland K., ‘The History of Modern English Law,’ 1873; SirStephen, Lesjie, ‘The English Utilitarians,’ London, 1900.

Some Sources of Modern English Criminal Legislation

  • L. Radzinowicz and P. H. Winfield

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