regret to say, that it seems vain to hope for any such distinction; for when the House of Commons were ready to make conspiracy to murder a misdemeanor, though punishable by penal servitude for life, and actually did make it a misdemeanor punishable with ten years' penal servitude, it is out of the question to suppose that any rational distinction between felony and misdemeanor can be established. The truth is, that whenever the punishment of any offence is considered, it is never looked at, as it always ought to be, with reference to other offences and with a view to establish any congruity in the punishment of them, and the consequence is that nothing can well be more unsatisfactory than the punishments assigned to different offences, or the distinctions between felony and misdemeanor as they exist at the present time. In my opinion all offences liable to a given punishment, say penal servitude for three years, ought to be felonies, and all other offences, misdemeanors.

I now turn to the extent of these Acts. The Coin Act alone extends to England, Scotland, and Ireland, as the former Act on the same subject did. All the other Acts extend to England and Ireland only. All the Acts, however, embrace offences committed within the jurisdiction of the Admiralty.

When the Statute Law Commissioners originally attempted to consolidate all the law relating to indictable offences in the very terms of the statutes themselves, the question as to the extension of the bills to Ireland was considered, and on an examination and comparison of the statutes relating to Ireland with those of England, it was at once found that there were so many essential differences between them that no such extension was possible; for in order to effect it great alterations must have been made in the laws of both countries.

When, however, the Statute Law Commission resolved, in 1857, that the consolidation should be accompanied by amendments, this opened a prospect for the assimilation

of the Criminal Law of England and Ireland, and it is undoubtedly owing to this resolution that the present Acts do apply to both countries. Whilst the bills of 1857 were in preparation, the question was again very carefully considered, and the late Mr. Donoghue came to England in order to go through all the Acts with me, and ascertain all the differences between the enactments relating to the two countries. Unfortunately, Mr. Donoghue was prevented by illness from meeting me more than once, and the burden of examining all the statutes consequently fell on myself alone; and I reported upon them, and that report is printed in the proceedings of the Statute Law Commission, and was afterwards fully approved of by Mr. Justice Fitzgerald, then Attorney-General for Ireland. It is to be remembered that in making this examination all the Irish statutes were examined, and the question then considered was whether all the criminal enactments in them could be assimilated with those of England, and Mr. Napier was quite right in saying, at the late meeting of the Association of Social Science, in Dublin, with reference to the question so considered, that "it was the deliberate opinion of influential members of the Statute Law Commission, that it was not practicable to have the same criminal law for England and Ireland; "* and I am still entirely of that opinion, and am perfectly satisfied that there are Acts in existence relating to Ireland that never can be assimilated with the law of England. Mr. Napier added, “Mr. Whiteside, Mr. J. Hayes, and myself, thought otherwise; we had bills prepared in conformity with our view." In this statement an inaccuracy, which nearly makes the whole difference between the two opinions, secretly lurks. It is perfectly true that the bills were prepared in accordance with that view so

* I cite this from The Times, as I have vainly endeavoured to get a copy of Mr. Napier's address.

far as they went; but it is equally true that they did not include some Whiteboy Acts, and it was these very Whiteboy Acts that formed one main ground of the opinion of the Statute Law Commission. Instead, therefore, of these bills negativing the correctness of that opinion, the omission of those Acts by the very learned persons who framed those bills is a tacit and cogent admission that those Acts could not be assimilated with the law of England, and that the opinion of the Statute Law Commission was correct in that respect. Mr. Napier added, "They (the bills so prepared) were taken up by the succeeding Cabinet, and to a great extent, though not altogether, in the form which was chosen by us, they have now become Imperial law, and so far solved the problem of an assimilation which was supposed to be impracticable." I have already pointed out accurately how the present Acts were framed, and that some Irish enactments were rejected from them because they could not be assimilated with the English law. I will give one instance to show how very clear this is. The first clause of the 1 & 2 Will. 4, c. 44, s. 3, makes the sending any letter threatening any injury or damage to the person, or property of any person, felony. This would include a case where a man gave a written notice to another that his fowl had trespassed, and that he would shoot it if it did so again; so also it would include a case where a man threatened by letter to do a lawful act, e. g. to abate a nuisance by pulling down a wall that had been erected across a public highway. The second clause made it a like offence to send a letter, without reasonable excuse, demanding arms. The last clause made it a like offence to send a letter, without reasonable excuse, requiring any person to quit or to let any house or land. Such clauses could never be extended to England, and as they were inserted in Mr. Whiteside's Libel Bill, it is plain they were considered still necessary in Ireland.

Several circumstances have also happened since 1857 that have facilitated the extension of the bills to Ireland. One great obstacle in the Offences against the Person Bill was the conspiracy to murder clause, which was a capital offence in the Irish Act, and the Statute Law Commission were informed in 1857, on the best authority, that it would not be expedient to reduce the punishment for that offence; and their opinion was that Parliament would not extend that offence to England with that punishment, and that opinion is proved to have been perfectly correct by the House of Commons having refused to extend it to England except as a misdemeanor. However, Lord Palmerston's bill for conspiracy to murder, with the punishment of penal servitude for life, having been assented to by the House of Commons in the first instance, and the state of Ireland having greatly improved, the assimilation of the law as to this offence was rendered feasible.

A strong obstacle to the assimilation of the Irish Malicious Injuries Act arose from the landlord and tenant clauses in the 9 Geo. 4, c. 56, ss. 24 et seq.; all these clauses except the first were repealed by the Irish Landlord and Tenant Act of last year, and the law on that subject incorporated in that Act, and it was practicable so to alter the first clause as to extend it to England, though even then it did not pass the Committee of the Commons without strong opposition.

No one entertains a higher respect for Mr. Napier than I do, but it seemed to me that it was nothing but right that the assimilation of the law effected by these Acts should be placed in its true light, and that it should be shown how it came to pass. The truth is, these Acts do assimilate the law of the two countries as to all the offences they contain, but no further.

Whenever the question of the assimilation of the law of the two countries shall be considered, it may be well to bear in mind, that there are special and particular circum

с

stances in the different parts of the British Empire which require particular enactments with respect to them, and that there is, in fact, hardly a large town in England itself which has not a local Act containing provisions applicable to its own particular circumstances; nay more, that on occasions of public disturbances and seditious assemblies Acts have been passed specially for England alone.

There therefore is certainly no ground for the outcry that is sometimes raised that Ireland is unfairly dealt with because the laws are not made altogether the same in both countries; and it is at least not unworthy of notice that it is difficult to conceive any argument that can be adduced in support of making the laws of England and Ireland identical that will not apply with the same force to Scotland, and yet the gentlemen, who framed Mr. Whiteside's bills, seem never to have contemplated the extension of any of those bills except the Coin Bill to Scotland. After all, the real question in every case is, whether in any particular part of the vast empire of Queen Victoria the state of things be such as to make it expedient to enact or retain special provisions as to that particular part; and by that question every case ought to be determined, and it is bad policy to stretch any enactment for the purpose of creating uniformity where the state of things does not fully warrant that course. Mr. Whiteside's bills exhibited a strange state of things in some respects in Ireland; for whilst the punishment for larceny was reduced below two years' imprisonment, new clauses were introduced to make persons who stole a pig, or an ass, or an agricultural implement liable to penal servitude for three years. It is to be hoped, however, that the present rapid improvement in Ireland may, in a short time, render it safe to repeal the enactments which cannot be assimilated with the law of England.

One remark as to the Repealing Act. There are sundry Acts in the schedule which have the words "the whole " placed opposite to them, and which had been partially