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12 Legal Hist. 19 (2008)
Criminal Law Codification and Imperial Projects: The Self-Governing Jurisdiction Codes of the 1890's

handle is hein.journals/ausleghis12 and id is 23 raw text is: Legal History (2008) Vol 12 17 CRIMINAL LAW CODIFICATION AND IMPERIAL PROJECTS: THE SELF-GOVERNING JURISDICTION CODES OF THE 1890'S BARRY WRIGHT* I INTRODUCTION 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.' 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. 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. 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). 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 modem paradigm of local

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