1911 Encyclopædia Britannica/Criminal Law
CRIMINAL LAW. By criminal, or penal, law is now understood the law as to the definition, trial and punishment of crimes, i.e. of acts or omissions forbidden by law which affect injuriously public rights, or constitute a breach of duties due to the whole community. The sovereign is taken to be the person injured by the crime, as he represents the whole community, and prosecutions are in his name. Criminal law includes the rules as to the prevention, the investigation, prosecution and punishment of crime (q.v.). It lays down what constitutes a criminal offence, what proof is necessary to establish the fact of a criminal offence and the culpability of the offender, what excuse or justification for the act or omission can be legally admitted, what procedure should be followed in a criminal court, what degrees and kinds of punishment should be imposed for the various offences which come up for trial. Finally, it regulates the constitution of the tribunals established for the trial of offences according to the gravity of the infraction of law, and deals with the organization of the police and the proper management of prisons, and the maintenance of prison discipline. (See Evidence; Prison; Police.)
Many acts or omissions, which are technically criminal and classified as offences and punished by fine or imprisonment, cannot be said to have a strictly criminal character, since they do not fall within the popular conception of crime. To this class belong such matters as stopping up a highway under claim of right, or failing to repair it, or allowing a chimney to emit black smoke in excessive quantities, or to catch fire from being unswept, or breach of building by-laws, or driving a motor car on a highway at a speed in excess of the legal limit. Such breaches of law are under the French law described as contraventions. In England most of them are described as petty misdemeanours or offences punishable on summary conviction, or less happily as “summary offences,” and some writers speak of them as mala prohibita as distinguished from mala in se, i.e. as not involving any breach of ordinary morality other than a breach of positive regulations. Continental jurists at times speak of crimes de droit commun (i.e. offences common to all systems of law as distinguished from offences which are crimes only by a particular municipal law). To this class of crimes de droit commun belong most of the offences included in extradition treaties.
Criminal and civil law overlap, and many acts or omissions are not only “wrongs” for which the person injured is entitled to recover compensation for his own personal injury or damage, but also “offences” for which the offender may be prosecuted and punished in the interest of the state. In non-English European systems care is taken to prevent civil remedies from being extinguished by punishment: it is quite usual for the civil and criminal remedies to be pursued concurrently, the individual appearing as partie civile and receiving an award of compensation by the judgment which determines the punishment to be inflicted for the offence against the state. Under English law it is now exceptional to allow civil and criminal remedies to be pursued concurrently or in the same proceeding, or to award compensation to the injured party in criminal proceedings, and he is usually left to seek his remedy by action. Among the exceptions are the restitution of stolen goods on conviction of the thief if the prosecution has been at the instance or with the aid of the owner of the goods (Larceny Act 1861, § 100), and the award of compensation to persons who have suffered injury to property by felony (Forfeiture Act 1870).
As Sir Henry Maine says (Ancient Law, ed. 1906, p. 381), “All
civilized systems of law agree in drawing a distinction between
offences against the state or community (crimes or
crimina) and offences against the individual (wrongs,
ment of modern criminal
law. torts or delicta).” But the process of historical development by which this distinction has been ultimately established has given great occasion for study of early laws and institutions by eminent men, whose researches have disclosed the extremely gradual evolution of the modern notion of criminal law enforced by the state from the primitive conceptions and customs of barbarous or semi-civilized communities. Of the oldest codes or digests of customs which are available to the student it has been said the more archaic a code the fuller and minuter is its penal legislation: but this penal legislation is not true criminal law; it is the law, not of crimes, but of wrongs. The intervention of the community or tribe is in the first instance to persuade or compel the wronged person or his family or tribe to abandon private vengeance or a blood feud and to accept compensation for the wrong collectively or individually sustained; and in the tariffs of compensation preserved in early laws the importance of the injured person was the measure of the compensation or vengeance which he was recognized to be entitled to exact, and the scales of punishment or compensation are fixed from this point of view.
The laws of Khammurabi (2285–2242), the oldest extant code, contain definite schemes and scales of offences and punishments, and indicate the existence of tribunals to try the offences and to award the appropriate remedy. The Babylon. punishments are very severe. It is not distinctly indicated whether the proceedings were at the instance of the state or the person wronged, but compensation and penalty could be awarded in the same proceeding, and the provisions as to the lex talionis and scale of compensation for injuries tend to show that the procedure was on private complaint and not on behalf of the state (see further Babylonian Law).
Of the early criminal laws of Greece only fragments survive, e.g. those of Solon and Draco. In Athens in early times crime was dealt with in the Areopagus from the point of view of religion and by the archons from the point of view ofGreece. compensation: and it was only when the state interests were directly affected that proceedings by way of εἰσαγγελία or impeachment were taken. In classical times crimes fell to be tried by panels of jurors or judges drawn from the assembly and described as δικαστήρια.
The earliest materials for ascertaining the criminal law of Rome are to be found in the Twelve Tables, Table VIII. The criminal law of imperial Rome is collected in books 47 and 48 of the Digest. The classification of crimes Rome. therein is capricious and anomalous. “In the early Roman law the idea of legislative power was so fully grasped and that of judicial power so little understood that the criminal jurisdiction arose in the form of a legislative enactment applicable to particular cases.” Crimes were classified according to the mode of prosecution into:
1. Publica judicia, dealing with crimes specifically forbidden by definite laws, which took the place of the standing commissions (quaestiones perpetuae) of the time of the republic. In the earlier stages of Roman law the state only interfered to punish offences which gravely affected it, and did so by privilegia, which correspond to impeachment or Bill of Pains and Penalties.
2. Extraordinaria crimina, crimes for which no special procedure or punishment was provided: the punishment being, within limits, left to the discretion of the judge and the prosecution to the injured party.
3. Privata delicta, offences for which a special form of action was open to the injured party, e.g. actio furti.
The multiplicity of tribunals under the republic was replaced under the empire by a complete organization of the judiciary throughout the districts (dioceses) under the supervision of the emperor in his privy council (see Maine, Ancient Law, ed. 1906, p. 393). Public prosecution under the empire began by arrest of the accused, who was taken before an eirenarcha, who examined him (by torture in the case of a slave or parricide) and sent him on for trial before the praeses of the diocese (διοίκησις). Private prosecution followed, a procedure closely resembling that of civil actions, beginning with citatio (summons), followed by libellus or accusation, and appointment of a day for hearing. The right of either party to call witnesses was very imperfectly established.
The early laws of the Celtic races are preserved as to Wales in the laws of Hywel Dda, and as to Ireland in the Book of Aicill and other Brehon law tracts, which are professional collections of precedents and formulae madeCeltic law. by the hereditary law caste (Brehons), whose business it was “to pass sentence from precedents and commentaries.” (See Brehon Laws.) The development of Celtic law was arrested by the Saxon and Anglo-Norman conquest: but the materials preserved indicate an origin common with that of Germanic law.
The special characteristics of Irish criminal law, if it can be so called, were:—
1. The law was customary and theoretically unchangeable, and no legislative or judicial authority existed to alter or enforce it.
2. All crimes were treated as wrongs, for which compensation was made by assessment of damages by a consensual tribunal whose power to make awards depended on submission of the parties and the ultimate sanction of public opinion or custom. A customary tariff for compensation existed for all offences from wilful murder downwards. No crime was unamendable. The Irish law recognized a body price or compensation (S. bot) and an honour price or eric (S. wer), for which the family or tribe of the offender was collectively liable; but there is no clearly ascertained equivalent to the Saxon wite, or fine to the chief.
The laws of the Germanic tribes, so far as preserved in the Germania of Tacitus, and in the compilations of customs known as the Salic and Ripuarian laws, the Leges Barbarorum, the Dooms of Æthelberht and the collections ofGermanic law. Anglo-Saxon law and custom (to be found in Thorpe’s Ancient Laws and Institutes of England), do not indicate any adequate or definite division between crimes and causes of civil action, but, like the laws of Babylon, recognize the system and contain the tariffs of compensation for wrongs. The idea of the compensation was originally to put an end (finis) to blood feuds and private war or vengeance.
These laws formed the foundation of the criminal law of Germany, including the Netherlands, of England and of Scandinavia. But in each country the development of criminal law has been affected by influences other than Germanic, mainly consisting in an infusion more or less great of ideas derived from Roman law. In England under Alfred some part of the Levitical law (Exod. xxi. 12-15) was incorporated, just as in 1567 the criminal law as to incest in Scotland was taken bodily from Leviticus xviii.
The stage which the development of criminal law had reached in England by the reign of Edward the Confessor is thus described by Pollock and Maitland (Hist. Eng. Law, ii. 447): “On the eve of the Norman Conquest what we may call Anglo-Saxon law. the criminal law of England (but it was also the law of torts or civil wrongs) contained four elements which deserve attention: Its past history had in the main consisted of the varying relations between them. We have to speak of outlawry, of the blood feud (faidus), of the tariffs of wer and wite (fredus or friede), and bot, of punishment in life and limb. As regards the malefactor the community may assume one of four attitudes: it may make war on him; it may have him exposed to the vengeance of those whom he has wronged; it may suffer him to make atonement; it may inflict on him a determinate punishment, death, mutilation or the like.” The wite or sum paid to the king or lord is now thought to have been originally not a penalty but a fee for time and trouble taken in hearing and determining a controversy. But at an early stage fines for breach of peace were imposed. An evil result from the public point of view followed from the system of atoning for crime by pecuniary mulct. “Criminal jurisdiction became a source of revenue.” So early as Canute’s time certain crimes were pleas of the crown; but grants of criminal jurisdiction, with the attendant forfeitures, were freely made to prelates, towns and lords of manors, and some traces of this jurisdiction still survive (e.g. the criminal jurisdiction of the justices of the soke (soc) of Peterborough, and the rights of some boroughs, e.g. Nottingham, to forfeitures). Outlawry soon ceased to be a mode of punishment, and became, as it still is, a process to compel submission to justice (Crown Office Rules, 1906, rules 88-110). Certain crimes, such as murder, rape, arson and burglary, became unamendable or bootless, i.e. placed the offender’s life, limb, lands and goods at the king’s mercy. These crimes came to be generally described by the name felony (q.v.). Other crimes became punishable by fines which took the place of wites. These were styled trespasses and correspond to what is now called misdemeanour (q.v.).
Minor acts of violence, dishonesty or nuisance, were dealt with in seigniorial and borough courts by presentment of the jurors of courts baron and courts leet, and punished by fine or in some cases by pillory, tumbril or stocks. GraveAnglo-Norman period. acts were dealt with by the sheriff as breaches of the peace. He sat with the freeholders in the county court, which sat twice a year, or in the hundred court, which sat every four weeks. So far as this involved dealing with pleas of the crown the sheriff’s jurisdiction was abolished and was ultimately replaced by that of the justices or conservators of the peace. The sheriff then ceased to be a judge in criminal cases, but remained and still is in law responsible for the peace of his county, and is the officer for the execution of the law. The royal control over crime was effectually established by the itinerant justices sent regularly throughout the realm, who not only dealt with the ordinary proprietary and fiscal rights of the crown but also with the graver crimes (treason and felony), and ultimately were commissioned to deal with the less grave offences now classed as indictable misdemeanours. The change resulted from the strengthening of royal authority throughout England, which enabled the crown gradually to enlarge the pleas of the crown and to weaken and finally to supersede the criminal jurisdiction, notably of the sheriff, but also of prelates and lords in ecclesiastical and other manors and franchises. “In the early English laws and constitution there existed a national sovereignty and original criminal jurisdiction, but the ideas of legislative power and crime were very slowly developed.” During the 12th century the criminal law was affected by the influence of the church, which introduced into it elements from the Canon and Mosaic laws, and also by the memory of the Roman empire and the renewed study of the Roman law, which enabled lawyers to draw a clearer distinction than had before been recognized between the criminal (dolus) and civil (culpa) aspect of wrongful acts. The Statute of Treasons (1351) is to a large extent an admixture of Roman with feudal law; and to the same source is probably due the more careful analysis of the mental elements necessary to create criminal responsibility, summed up in the somewhat misleading expression nemo reus est nisi mens sit rea.
In the 14th century justices of the peace and quarter sessions were established to deal with offences not sufficiently important for the king’s judges, and from that time the course of criminal justice in England has run substantially on the same lines, with the single and temporary interruption caused by the court of star chamber.
The penal laws of modern states classify crimes somewhat differently, but in the main on the same general principles, dividing them into:—
1. Offences against the external and internalClassifica-
crimes. order and security of the state.
2. Offences against the administration of police and against public authority.
3. Acts injurious to the public in general.
4. Offences against the person (life, health, liberty and reputation), and conjugal and parental rights and duties.
5. Offences relating to property and contracts (including theft, fraud, forgery and malicious damage).
The terminology by which crimes are described by reference to their comparative gravity varies considerably. In many continental codes distinctions are drawn between crimes (Ger. Verbrechen; Norse vorbrydelser; Span. crimenes; Ital. reato), delicts (Ger. Vergehen; Ital. delitti; Span, delitos), and contraventions (Ital. contravenzioni; Span, faltas).
The classification adopted by English law is peculiar to itself, “treason,” “felony” and “misdemeanour,” with a tentative fourth class described as “summary offences.” The particular distinctions between these three classes are dealt with under the titles Treason; Felony; Misdemeanour, &c. Here it is enough to say that the distinction is a result of history and is marked for abolition and reclassification. Treason and most felonies and some misdemeanours would under foreign codes fall under the head of crime. Misdemeanour, roughly but not exactly, corresponds to the French délit, and summary offence to contravention.
In all systems of criminal law it is found necessary
to determine the criterion of criminal responsibility,
the mental elements of crime, the degrees of criminality
bility. and the point at which the line is to be drawn between intention and commission.
The full definition of every crime contains expressly or by implication a proposition as to a state of mind, and in all systems of criminal law, competent age, sanity and some degree of freedom from coercion, are assumed to be essential to criminality; and it is also generally recognized that an act does not fall within the sanction of the criminal law if done by pure accident or in an honest and reasonable belief in circumstances which if true would make it innocent; e.g. when a married person marries again in the honest and reasonable but mistaken belief that the former spouse is dead. Honest and reasonable mistake of fact stands on the same footing as absence of the reasoning faculty, as in infants, or perversion of that faculty, as in lunatics.
Besides the elements essential to constitute crime generally, particular mental elements, which may differ widely, are involved in the definition of particular crimes; and in the case of statutory offences adequately and carefully defined, the mental elements necessary to constitute the crime may be limited by the definition so as to make the prohibition of the law against a particular act absolute for all persons who are not infants or lunatics. As a general rule of English law, it is enough to prove that the acts alleged to constitute a crime were done by the accused, and to leave him to rebut the presumption that he intended the natural consequences of the acts by showing facts justifying or excusing him or otherwise making him not liable. Children are conclusively presumed to be incapable of crime up to seven years of age; and from seven to fourteen the presumption is against the capacity, but is not absolute.
Under the common law, insanity was an absolute answer to an accusation of crime. Since 1883, where insanity is proved to have existed at the date of the commission of the incriminated acts, the accused is found guilty of the acts but insane when he did them, and is relegated to a criminal lunatic asylum. There was also at common law a presumption that a married woman committing certain crimes in the presence of her husband did so under his coercion. But under modern decisions and practice the presumption has become feeble almost to inanition (R. v. Mary Baines, 1900, 69 L.J. Q.B. 681). Distinctions are also drawn between degrees of guilt or complicity.
English criminal law punishes attempts to commit crime if the attempt passes from the stage of resolution or intention to the stage of action, when the completion of the full offence is frustrated by something other than the will of the accused. Except in the case of attempt to commit murder, which is a felony, attempts to commit a crime are punished as misdemeanours. It also punishes the solicitation or incitement of others to commit crime, as a separate offence if the incitement fails, as the offence of being accessory before the fact or abettor if the offence is committed as a result of the incitement; and it punishes persons who, after a more serious crime—felony—has been committed, do any act to shield the offender from justice. In the case of the crimes described as felonies the law distinguishes between principals in the first or second degree and accessories before or after the fact. In the case of misdemeanours the same punishment is incurred by the principal offenders, and by persons who are present aiding and abetting the commission of the offence, or who, though not present, counselled or procured the commission of the offence (see Accessory). Besides these degrees of crime there is one almost peculiar to English law known as conspiracy, i.e. an agreement to commit crime or to do illegal acts (including interference with the due course of justice), which is punishable even if the conspiracy does not get beyond the stage of agreement. The exact nature of this form of crime and the propriety of abolishing it or limiting its scope have been the subject of much controversy, especially with reference to combinations by trade unions.
The English law does not, but most European laws do, allow the jury to reduce the penalty of an offence by finding in their verdict that the commission of the offence was attended by extenuating circumstances; but when the jury recommend to mercy a person whom they find guilty the judge may give effect to the recommendation or report it to the Home Office.
In systems of criminal law derived from England the forms of crime or degrees of complicity above stated reappear with or without modification, but as to conspiracy with a good deal of alteration. In the Indian penal code, for instance, conspiracy is limited to cases of treason (§ 121 A), and when it goes beyond agreement in the case of other offences it is merely a form of abetment or participation (§ 107).
The criminal law of England is not codified, but is composed of a large number of enactments resting on a basis of common law. A very large part is reduced to writing in statutes. The unwritten portion of the law includesDefinitions of particular crimes. (1) principles relating to the excuse or justification of acts or omissions which are prima facie criminal, (2) the definitions of many offences, e.g. murder, assault, theft, forgery, perjury, libel, riot, (3) parts of the law relating to procedure. The law is very rich in principles and rules embodied in judicial decisions and is extremely detailed and explicit, leaving to the judges very little latitude of interpretation or expression. So far as the legislature is concerned there is an absence of systematic arrangement. The definitions of particular crimes are still to be sought in the common law and the decisions of the judges. The Consolidation Acts of 1861 for the most part leave definitions as they stood, e.g. the Larceny Act 1861 does not define the crime of larceny. The consequence is that exact definitions are very difficult to frame, and the technical view of a crime sometimes includes more, sometimes less, than it ought. Thus the crime of murder, as settled by the existing law, would include offences of such very different moral gravity as killing a man deliberately for the sake of robbing him, and killing a man accidentally in an attempt to rob him. On the other hand, offences which ought to have been criminal were constantly declared by the judges not to fall within the definition of the particular crimes alleged, and the legislature has constantly had to fill up the lacunae in the law as interpreted by the judges.
The jurisdiction to deal with crime is primarily territorial, and can be exercised only as to acts done within the territory or territorial waters, or on the ships of the law-giver. Extra territorium jus dicenti impune non paretur. NoJurisdiction. state will enforce the penal laws of another nor permit the officer of another state to execute its laws outside its own territory. But international law recognizes the competence of a state to make its criminal law binding on its own subjects wherever they are, and perhaps even to punish foreigners who outside its territory do acts which menace its internal or external security, e.g. by dynamite plots or falsification of coin. Apart from extradition arrangements the national law cannot reach such persons, be they citizens or aliens, until they come within the territory of the state whose law has been broken.
The codes of France, Germany and Italy make the penal law national or personal and not territorial. In some British colonies whose legislatures have a derived and limited legislative authority, indirect methods have been taken to deal within the colony with persons who commit offences outside its territory.
Throughout the development of the English criminal law it showed and retains one particular characteristic that crime was treated as local, which means not merely that the common law of England was limited to English soil, but that an offence on English soil could be “inquired of, dealt with, tried, determined and punished” only in the particular territorial division of England in which it was committed, which was and is known as the venue (q.v.). Each township was responsible for crimes within its boundaries, a responsibility made effective by the “view of frankpledge,” now obsolete, and the guilt or innocence of every man had to be determined by his neighbours. This rule excluded from trial by the courts of common law, treasons, &c. committed by Englishmen abroad and piracy; and it was not till Henry VIII.’s reign (1536, 1544) that the common-law mode of trial was extended to these offences. The legislature has altered the common law as to numerous offences, but on no settled plan, and except for a bill introduced about 1888, at the instance of the 3rd marquess of Salisbury, no attempt has been made to make the English criminal law apply generally to subjects when outside the realm; and in view of the complicated nature of the British empire and the absence of a common criminal code it has been found desirable to remain content with extradition in the case of crimes abroad, and with the provisions of the Fugitive Offenders Act 1881 in the case of criminals who flee from one part to another of the empire.
The localization in England of crime, and the procedure for punishing it, differ largely from the view taken in France and most European countries. The French theory is that a Frenchman owes allegiance to the French state, and commits a breach of that allegiance whenever he commits a crime against French law, even although he is not at the time within French territory. In modern days this theory has been extended so as to allow French and German courts to punish their subjects for crimes committed in foreign countries, and by reason of this power certain countries refuse to extradite their subjects who have committed crimes in other states.
The principle of the French law, though not expressly recognized
in England, must be invoked to justify two departures
from the English principle—(1) as regards offences
on the high seas, and (2) as regards certain offencesOffences
high seas. committed outside the United Kingdom. In early days offences committed by Englishmen on the high seas were punished by the lord high admiral, and he encroached so much on the ordinary courts as to render it necessary to pass an act in Richard II.’s reign (15 Rich. II. st. 2, c. 3) to restrain him.
In the time of Henry VIII. (1536, 28 Hen. VIII. c. 15) an act
was passed stating that, as the admiral tried persons according
to the course of civil law, they could not be convicted unless
either they confessed or they or the witnesses were submitted
to torture, and that therefore it was expedient to try the offences
according to the course of the common law. Under that act
a special commission of oyer and terminer was issued to try these
offences at the Old Bailey, and English law was satisfied by permitting
the indictment to state that the offence was committed
on board a ship on the high seas, to wit in the county of Middlesex.
Since 1861 these special commissions have been rendered unnecessary
by the provision (contained in each of the Criminal Law
Consolidation Acts of that year) that all offences committed on
the high seas may be tried as if they had been committed in
England. As regards offences on land, it was found necessary
as early as the reign of Henry VIII. (1544) to provide for the trial
in England of treasons and murders committed on land outside
England. This was largely due to the constant presence inOffences committed on land outside England.
France of the king and many of his nobles and knights,
but the aid of this statute had to be invoked in 1903
in the case of Lynch, tried for treason in South Africa.
The latest legislation on the subject was in 1861
(Offences against the Person Act, § 9), and any murder
or manslaughter committed on land out of the United Kingdom,
whether within the king’s dominions or without, and whether
the person killed were a subject of His Majesty or not, may be
dealt with in all respects as if it were committed in England.
The jurisdiction has been extended to a few other cases such as
slave trade, bigamy, perjury, committed with reference to
proceedings in an English court, and offences connected with
explosives. But these offences must be committed on land and
not on board a foreign ship, because if a man takes service on
board a foreign ship he is treated for the time as being a member
of the foreign state to which that ship belongs. The principleMisde-
meanours committed by public officers in colonies. has been also extended to misdemeanours (but not to felonies) committed by public officers out of Great Britain, whether within or without the British dominions. Thus a governor or an inferior officer of a colony, if appointed by the British government, may be prosecuted for any misdemeanour committed by him by virtue of his office in the colony; and cases have occurred where governors have been so prosecuted, such as that of General Picton at the beginning of the 19th century, and of Governor Eyre of Jamaica in 1865, and the attempt to prosecute Governor MacCallum of Natal in 1906. As a corollary to the system of “capitulations” applied to certain non-Christian states in Asia and Africa, it has been necessary to take powers for punishing under English law offences by British subjects in those states, which would otherwise go unpunished either by the law of the land where the offence was committed or by the law of the state to which the offender belonged (Jenkyns, Foreign Jurisdiction of the Crown).
An essential part of the criminal law is the punishment or sanction by which the state seeks to prevent or avenge offences. See also under Criminology. Here it is enough to say that during the 19th century great changesPunishment. have been made throughout the world in the modes of punishing crime.
In England until early in the 19th century, punishments for crime were ferocious. The severity of the law was tempered by the rule as to benefit of clergy and by the rigid adherence of the judges (in favorem vitae) to the rules of correct pleading and proof, whereby the slightest error on the part of the prosecution led to an acquittal. Bentham pointed out that certainty of punishment was more effective than severity, that severe punishments induced juries to acquit criminals, and that thus the certainty of punishment was diminished. But his arguments and the eloquence of Sir Samuel Romilly produced no effect until after the reform of parliament in 1832, shortly after which statutes were passed abolishing the death sentence for all felonies where benefit of clergy existed. The severity of capital sentences had already been modified by the pardoning power of the crown, which pardoned convicts under sentence of death on their consenting to be transported to convict settlements in the colonies. (See Deportation.) For some years this was only done by the consent of the convict, who agreed to be transported if his death sentence was remitted, but in 1824, when a convict refused to give this consent, parliament authorized the crown to substitute transportation for a death sentence, and the same course was adopted in Ireland in 1851 when some treason-felony prisoners refused commutation of their sentence to transportation.
The punishments now in use under the English law for indictable offences are:—
1. Death, inflicted by hanging, with a provision that other modes of execution may be authorized by royal warrant in cases of high treason.
2. Penal servitude, which in 1853 was substituted for transportation to penal settlements outside the United Kingdom. The minimum term of penal servitude is three years (Penal Servitude Act 1891), and the sentence is carried out in a convict prison, in the United Kingdom, but there is still power to send the convicts out of the United Kingdom.
3. Imprisonment in a local prison, which must be without hard labour unless a statute specially authorizes a sentence of hard labour. At common law there is no limit to a term of imprisonment for misdemeanour; but for many offences (both felonies and misdemeanours) the term is limited by statute to two years, and in practice this limit is not exceeded for any offence. The treatment of prisoners is regulated by the prison acts and rules.
4. Police supervision, on conviction or indictment of felony and certain misdemeanours after a previous conviction of such offences. Prevention of Crimes Act, c. 112, §§ 8, 20.
5. Pecuniary fine, a punishment appropriate only to misdemeanours and never imposed for a felony except under statutory authority, e.g. manslaughter (Offences against the Person Act, § 5). The amount of the fine is in the discretion of the judge, subject to the directions of Magna Carta and the Bill of Rights and of any statute limiting the maximum for a particular offence.
6. Whipping was a common law punishment for misdemeanants of either sex. Under the present law the whipping of females is prohibited, and the punishment is not inflicted on males except under statutory authority, which is given in the case of certain assaults on the sovereign, of certain forms of robbery with violence or assaults with intent to commit felony (Garrotters Act 1863), of incorrigible rogues, larceny and malicious damage, and certain other offences by youthful offenders.
7. Recognizances (caution) to keep peace and be of good behaviour, i.e. a bond with or without sureties creating a debt to the crown not enforceable unless the conditions as to conduct therein made are broken. This bond may be taken from any misdemeanant, and, under statutory authority, from persons convicted of any felony (except murder) falling within the Criminal Law Consolidation Acts of 1861.
8. In the case of any offence which is not capital the court, if it is a first offence or if any other grounds for mercy appear, may simply bind the offender over to come up for judgment when required, intimating to him that if his conduct is good no further steps will be taken to punish him.
Except in the case of the death penalty, the court of trial has a discretion as to the quantum of a particular punishment, no minimum being fixed. In the case of offences punishable on summary conviction the maximum punishment is always fixed by statute. It consists of imprisonment with or without hard labour, or a fine of a limited amount, or both. The imprisonment in very few cases may exceed six months. If the maximum exceeds three months the accused must be informed that he has a right, if he so elects, to be tried by a jury.
Where power is given to deal summarily with offences which under ordinary circumstances would be tried on indictment, the punishments are as follows (Summary Jurisdiction Act 1879):—
(a) In the case of adults pleading guilty, imprisonment not exceeding six months without the option of a fine.
(b) In the case of adults (consenting to be summarily tried), where the offence affects property not worth over forty shillings, imprisonment not over three months, or fine not exceeding £20.
(c) In the case of young persons, between twelve and sixteen years, imprisonment not over three months, or fine not exceeding £10.
(d) In the case of children under twelve, imprisonment not over one month, or fine not exceeding forty shillings.
If the offence is trifling, the accused may be discharged without punishment, and under the First Offenders Act (1887) the justices have a discretionary power to forgo punishment. The justices have also the power, under the Prevention of Crime Act 1908, in lieu of passing a sentence of penal servitude or imprisonment, to commit persons between the ages of sixteen and twenty-one to a Borstal institution, for a period of detention ranging from one to three years (see Juvenile Offenders).
In the criminal law of Europe the scale of punishments is on similar lines in most states, and is more elaborate than that of England, and less is left to the discretion of the court of trial. The following examples will indicate the kind of punishments awarded under the French penal code. Punishments are classified as (1) afflictives et infamantes, including death, travaux forcés à perpétuité ou à temps, déportation, détention, reclusion; (2) infamantes, viz. banishment and civil degradation; (3) peines en matière correctionnelle, viz. imprisonment in a house of correction (six days to five years), interdiction from certain civic rights, and fine. The punishments in no case have any effect to extinguish the civil claims of individuals who have suffered by the offence (arts. 6 and 55). Special provisions are made for récidivistes, police supervision and first offenders (Loi Bérenger).
In the German code of 1872 the legal punishments are: (1) death; (2) penal servitude for life or for a term not exceeding fifteen years nor less than one year; (3) imprisonment with labour for a term not exceeding five years nor less than one day; (4) confinement in a fortress (terms same as for penal servitude but involving only withdrawal of freedom and supervision); (5) arrest for not more than six weeks nor less than one day; (6) fine (not less than three marks in the case of crimes or delicts nor one mark in case of petty offences). Sentence of imprisonment is in certain cases followed by liability to be placed under police supervision for a term after release. In the case of a sentence of death or of penal servitude, the court may order forfeiture of civil privileges, and a condemnation to penal servitude permanently disqualifies for service in the army and public office (Code pt. 1, chap. 1, arts. 13-40).
Under the Italian code of 1889 (arts. 11-30) the punishments are (1) ergastolo (for life); (2) reclusione (from three days to twenty-four years), which involves hard labour and cellular confinement; (3) detenzione (like term), which involves labour and at night separate confinement; (4) confino (one month to three years), a form of banishment from the commune of origin or residence of the offender; (5a) fine (multa), from ten to ten thousand lire; (5b) amende, from one to two thousand lire; (6) arrest (one day to two years); (7) interdiction from public office; (8) suspension from professional calling. Punishments (5b), (6) and (8) are applied only to contraventions, the others to crimes (delitti).
The Spanish law (Codigo Penal, title 3, chaps. 2 and 3) contains a general scale of punishments classified as afflictive, correctional, light and accessory. The first class begins with death and runs down through many forms of imprisonment to disqualification (inhabilitacion). The second includes forms of imprisonment, (presidio and prisión), and arrest, public censure and suspension from the exercise of certain offices or callings. The slight punishments are minor arrest and private censure. Offenders in any of the three classes may also be fined or put under recognizance (caución). The accessory punishments include payment of costs, degradation, civil interdiction.
In England indictable offences (i.e. offences which must be tried by a judge and jury) are thus dealt with:—
1. Courts of assize (sitting under old commissions known as commissions of assize, oyer and terminer, and general gaol delivery) are held twice or oftener in every year in each county and also in some large cities and boroughs. They are the lineal successorsTribunals. of the justices in eyre of the middle ages; but they are now integral parts of the High Court of Justice. These courts can try any indictable offence presented by a grand jury for the district in which they sit.
2. For the counties of London and Middlesex and certain adjoining districts, a special court of assize known as the central criminal court sits monthly.
3. In all counties and many boroughs the justices of the peace sit quarterly or oftener under the commission of the peace to try the minor indictable offences. (See Quarter Sessions, Court of.)
4. The High Court of Justice in the king’s bench division tries a few special offences in its original jurisdiction, and where justice requires may transfer indictments from other courts for trial before itself.
5. The court of criminal appeal has been instituted by the Criminal Appeal Act 1907; to it all persons convicted on indictment have a right of appeal. (See Appeal.)
The substantive law as to crime applies in England to all persons except the reigning sovereign, and criminal procedure is the same for all subjects alike, except in the case of peers or peeresses charged with felony, who have the right of trial by their peers in the House of Lords if it be sitting, or in the court of the lord high steward.
There are in England no courts of a special character, such as exist in some foreign countries, for the determination of disputes between the governing classes themselves or with the governed classes, whether of a civil orSpecial tribunals. criminal character. There are a few exceptional courts with criminal jurisdiction. The court of chivalry, which used to punish offences committed within military lines outside the kingdom, is obsolete. Special tribunals exist for trying naval or military offences committed by members of the navy and army, but those members are not exempt from being tried by the ordinary tribunals for offences against the ordinary law, as though they were civilians. The naval courts can be held only on board a ship, and can as a general rule try only persons entered on the books of a king’s ship. The military courts can only try persons who are actually members of the army at the time, and their authority is annually renewed by parliament, in consequence of the jealousy still felt against the trial of any man except by the ordinary courts of law. Military and naval courts can try in any part of the world, and whenever the forces are in active service can try followers of the camp as if they were actual members of the forces. (See Military Law; Martial Law.)
The ecclesiastical courts, which were formerly very powerful
in England, and punished persons for various offences, such as
perjury, swearing, and sexual offences, have now
almost fallen into disuse. Their authority overEcclesi-
courts. Protestant dissenters from the established church was taken away by statute; their authority over lay members of the Church of England has disappeared by disuse. Occasionally suits are instituted in them against the clergy for offences either against morality or against doctrine or ritual. In these cases their sentences are enforced by penalties, such as suspension, or deprivation of benefice, or by imprisonment; which has replaced the old punishment of excommunication.
A system of procedure, with the judicial machinery required to work it, may be created either by the direct legislative action of the supreme power or by custom and the action of the courts. Both at Rome and in England it wasProcedure. through usage and by the courts themselves that the earlier system was slowly moulded: both at Rome and in England it was direct legislation that established the later system. (See Bryce, Studies in History and Jurisprudence, 1901, ii. 334.)
The characteristics of English criminal procedure which most distinguish it from the procedure of other countries are as follows:—
1. It is litigious or accusatory and not inquisitorial (Stephen, Prel. View Cr. Law). It is for the prosecutor to prove by evidence the commission of the alleged offence. No power exists to interrogate the accused unless he consents to be sworn as a witness in his own defence, which since 1898 he may do. The right to cross-examine him even when he is so sworn is limited by law, with the object of excluding inquiry into his past character or into past offences not relevant to the particular charge on which he is being tried.
2. The forms of criminal pleading still in use are in substance framed on the lines of the old system of pleading at common law in civil cases, which was swept away by the judicature acts. Criminal pleadings have, however, one peculiarity. Indictments, being in form the presentment of a grand jury, could not be amended until provision for that purpose was made in 1851. (See Indictment.)
3. Criminal prosecutions are ordinarily undertaken by the individuals who have suffered by a crime. There is not in England, as in Scotland and all European countries, a public department concerned to deal with all prosecutions for crime. The result is that the prosecution of most ordinary crime is left to individual enterprise or the action of the local police force or the justices’ clerk.
The attorney-general has always represented the crown in criminal matters, and in state prosecutions appears in person on behalf of the crown, and when he so appears has certain privileges as respects the reply to the prisoner’s defence and the mode of trial. In the Prosecution of Offences Acts of 1879, 1884 and 1908 there is to be found the nucleus of a system of public prosecution such as obtains in other countries in case of crime. Under these acts the director of public prosecutions (up to 1908 an office conjoint with that of solicitor to the Treasury) acts under the attorney-general, but unless specially directed he only undertakes a limited number of prosecutions, e.g. for murder, coining and serious crimes affecting the government.
4. Where an indictable offence is supposed to have been committed the accused is arrested, with or without the warrant of a justice, according to the nature of the offence, or is summoned by a justice before him. On his appearance a preliminary inquiry is held for the purpose of ascertaining whether there is a prima facie case against him. The procedure is regulated by the Indictable Offences Act 1848, and is entirely different from the procedure for summary offences. It may be, though usually it is not, held in private; it is an inquiry and not a trial; the justices have to consider not whether the man is guilty, but whether there is such a prima facie case against him that he ought to be tried. If they think that there is, they commit him to prison to wait his trial, or require him to give security, with or without sureties, to the amount named by them, for appearing to take his trial. If they think the charge unsubstantial they discharge the accused at once. The prosecutor in cases of felony may if he likes go before the grand jury whether the case has or has not been the subject of a preliminary inquiry, but in the case of many misdemeanours it is obligatory first to have a preliminary inquiry, as a protection against vexatious indictments.
Whether there has or has not been a preliminary inquiry before a magistrate, no person can be tried for any of the graver crimes, treason or felony, except upon indictment found by a grand jury of the county or place whereThe grand jury. the offence is said to have been committed or is by statute made cognizable. In olden days, and even now in theory, the grand jury inquire of their own knowledge, by the oath of good and lawful men of the neighbourhood, into the crime of the county, but in practice the charges against the accused persons are always first submitted to the proper officer of the court. The grand jurors are instructed as to their inquisition by a charge from the judge, as regards the indictments concerning which they are called upon to enquire whether there is a prima facie case to send them for trial to the petty jury. The grand jury must consist of not less than twelve, nor more than twenty-three, good and lawful men of the county. But any person who prefers an indictment is entitled to have it presented to the grand jury. Officers of the court lay the indictments before the grand jury. The charges are then called bills, and if the grand jury considers that there is no prima facie case the foreman endorses the bill with the words “no true bill,” and it is then presented to the judge. The jury are then said to have ignored the bill, and if the person charged is in custody he is released, but is liable to be indicted again on better evidence.
As a means of constitutional protection in times of monarchical aggression this practice had no doubt a great value, but in the present day, when few offenders are tried without a preliminary inquiry by justices, the functions of a grand jury are of secondary importance, and the jurors’ time is perhaps needlessly occupied. The institution of the grand jury prevented the crown in the days of its great power from removing a person whom it wished to get rid of from among his neighbours, and placing him on trial in a strange place where the influence of the crown was greater. This is still true to a certain extent, as great injustice may be caused to a man by removing him from his neighbours and trying him at a distance from his friends, and from the witnesses whom he might call for his defence. In Ireland, for instance, the greatest injustice might be done by removing an Orangeman from Belfast and trying him in a Roman Catholic county or vice versa. But it has its evils where the area from which the jurors are drawn is small, such as a town of a few thousand inhabitants. In that case a man charged, say, with fraud, may be protected by his friends from being properly punished for that fraud. But where justice requires, an order may be made for the trial of the offence in another county or at the central criminal court.
In many colonies the Scottish system has been adopted, by which the ordinary form of accusation is by indictment framed by the public prosecutor, and a grand jury is only impannelled in cases where an individual claims to prosecute an offence as to which the public officials decline to proceed. In England criminal informations by the attorney-general, or by leave of the court without the intervention of a grand jury, are permitted in cases of misdemeanour, but are now rarely preferred.
If a coroner’s jury, on inquiring into any sudden death, finds that murder or manslaughter has been committed, that finding has the same effect as an indictment by a grand jury, and the man charged may be tried by the petty juryCoroner’s courts. accordingly. The law and procedure of the coroner’s courts are now regulated by the Coroners Act 1887. When there is a dead body of a person lying within the area of his jurisdiction, and there is reasonable cause to suspect that such person died a violent or unnatural death, or a sudden death of which the cause is unknown, or has died in prison, the coroner is entitled to hold an inquest, and if the verdict or inquisition finds murder or manslaughter, it is followed by trial in the same way as if the person accused had been indicted.
When an indictment is found by the grand jury (twelve at
least must concur) the person charged is brought before the
court, the indictment is read to him, he is asked
whether he is guilty or not guilty. If he pleads guiltyTrial by
jury. he is then sentenced by the court; if he pleads not guilty, a petty jury of twelve is formed from the panel or list of jurors who have been summoned by the sheriff to attend the court. He is tried by these jurors in open court. The common law method of trial of crimes by a jury of twelve, native to English law, has been in modern times transplanted to European countries. It was not the original form of trial, for it was preceded by wager of battle (which was not finally abolished till 1819); and by ordeal, which was suppressed as to criminal trials in 1219 in consequence of the decree of the Lateran Council (1216). The first was allowed only on an appeal by an individual accuser; the second was resorted to on an accusation by public fame, which the accused was allowed to meet by submitting to the ordeal. It was after 1219 that trial by the jury of twelve (known as trial in pais) began to develop. At the outset the accused used to be asked how he would be tried, and could not be directly compelled to plead to the charge or to accept trial by a jury; which led to the indirect pressure known as the peine forte et dure, which fell into disuse after the Revolution and was formally abolished in 1772. But it was not until 1827 that refusal to plead was treated as a plea of not guilty, entailing a trial by a jury, and some old-fashioned officials still ask the old question “How will you be tried?” to which the old answer was “By God and my country.”
The original trial jury or inquest certainly acted on its own knowledge or inquiries without necessarily having evidence laid before it in court. The impartiality of the jurors was to some extent secured by the power of challenge. The exact time when the jury came into its present position is difficult accurately to define. On the trial before the petty jury the procedure and the rules of evidence differ in very few points from an ordinary civil case. The proceedings as already stated are accusatory. The prosecutor must begin to prove his case. Confessions (which are the object sought by French procedure) are regarded with some suspicion, and admissions alleged to have been made by the accused are not admitted unless it is clear that they were not extracted by inducements of a temporal nature held out by persons in authority over him. During the spring assizes of 1877 a prisoner was charged with having committed a murder twenty years before, and the counsel for the prosecution, with the consent of the judge, withdrew from the case because the only evidence, besides the prisoner’s own confession, was that of persons who either had never known him personally or could not identify him. The accused may not be interrogated by the judge or the prosecuting counsel unless he consents to be sworn as a witness. In this respect the contrast between a criminal trial in England and a criminal trial in France is very striking. The interrogation and browbeating of the prisoner by the judge, consistent as it may be with the inquisitorial theory of their procedure, is strange to English lawyers, accustomed to see in every criminal trial a fair fight between the prisoner and the prosecution, and not a contest between the judge and the prisoner. The accused may, if he choose, be defended by counsel, and if poor may get legal aid at the public expense if the court certify for it. He is entitled to cross-examine the witnesses for the prosecution and to call witnesses in his defence. At the conclusion of the evidence and speeches the judge sums up to the jury both as to the facts and the law, and the jury by their verdict acquit or convict. Immediate discharge follows on acquittal; sentence by the judge on conviction.
Justices of the peace may under many statutes convict in a summary manner (without the intervention of a jury) for offences of minor importance. The procedure for punishing summary offences is before two justices,Summary trials. or a stipendiary magistrate. This proceeding must not be confused with the preliminary inquiry already mentioned before justices for an indictable offence, nor with the procedure before justices in relation to civil matters, such as the recovery of small sums of money. The proceeding begins either by the issue of a warrant for the arrest of the person charged, in which case a sworn information must be filed, or by a summons directing the person charged to appear on a certain day to answer the complaint made by the prosecutor. The justices hear the case in open court; the person charged can make his defence either in person or by his solicitor or counsel, he can cross-examineProcedure for summary offences. the witnesses for the prosecution, call his own witnesses, and address the justices in his defence. The justices, after hearing the case, either acquit or convict him, and in case of conviction award the sentence. If the sentence is a fine, and the fine is not paid, the person convicted is liable to be imprisoned for the term fixed by the justices, not exceeding a scale fixed by an act of 1879, the maximum of which is one month. The imprisonment may be with or without hard labour.
Of late years this summary jurisdiction of the justices has received very large extensions, and many offences which were formerly prosecuted as serious offences by an indictment before the court of assize or quarter sessions have, where the offence was a trivial one, been made punishable, on summary proceedings before justices, by a small fine or a short term of imprisonment.
The extension of the jurisdiction of the justices is open to the observation that it deprives a person charged of the protection of a jury, and also that it throws upon him, if convicted, and upon the prosecution if there is no conviction, the cost of the proceedings. The former objection is much mitigated by the enactment made in 1879, that a person if liable on conviction to be sentenced to imprisonment for more than three months, or to a fine exceeding £100, can claim to be tried by a jury. But the objection as to the costs remains, and the payment of costs is often a very serious addition to the trivial fine; and it is anomalous that a person convicted of a trifling offence should bear the cost of the prosecution, while if he is convicted before a superior tribunal of the most serious offence he does not pay the costs.
In English law until 1907, where a criminal case had been tried by a jury the verdict of the jury of guilt or innocence was final and there was no appeal on the facts. Any considerable defect or informality in the procedure might be theAppeal. subject of a writ of error. And if any question of law arose at the trial, the judge might, if he chose, reserve it for the opinion of the court for the consideration of crown cases reserved, by whom the conviction might be either quashed or confirmed.
By the Criminal Appeal Act 1907, a new court was established, to which any person convicted on indictment might appeal. (See Appeal.)
The expenses of prosecution for crime in England are dealt with in the following manner. Prosecutions for high treason and the cognate offence known as treason-felony are at the expense of the state, which alone undertakesCosts. such prosecutions. In the case of all other felonies and of many misdemeanours the expense of the prosecution falls on the local rate. In the case of other misdemeanours the expense falls on the prosecutor. Where an offence is summarily prosecuted the costs are in the discretion of the court, which may order the accused to pay them, if convicted, or the prosecutor to pay on acquittal, or may leave the parties to pay their own expenses. On charges of felony and a few misdemeanours the court may order the accused person to pay the expenses of his prosecution in relief of the local rate. In a few cases, chiefly where the prosecution is vexatious, the court may order the prosecution to pay the expenses of the defence. The expenses of witnesses for the defence in any indictable offence may be paid out of the local rate when they have been called at the preliminary inquiry; and where the court in the case of a poor prisoner has certified that he should have legal aid, the expenses of the defence may be charged to the local rate. The local rate upon which the expenses fall is usually that of the county or borough in which the offence was committed; but sometimes is that of the place where the offence is tried.
Between 1852 and 1888 parliament reimbursed to the local authorities the expense imposed on the local rate. In 1888 the proceeds of certain taxes were set aside and handed over to the local authorities as a set-off to the expense incurred in prosecutions. In one class of case, offences committed in the admiralty jurisdiction, i.e. outside England, the treasury directly reimburses to the local authorities the expense incurred.
Under most, if not all, European codes, the state pays for the prosecution, subject to reimbursement by the accused, if the court so orders.
The English system of criminal procedure is the basis of that of most of the states which form the United States of America, and, with few exceptions, of the procedure throughoutNon-British criminal procedure. the British empire.
The French penal code and code of criminal procedure are substantially the model of all systems of continental criminal law. They were promulgated in 1811 by Napoleon I., and although he called in the aid of the greatest French jurists, he guided, and occasionally even revised, their labours. The French codes have been improved upon by later European codes, and more especially by the Italian penal code. All European codes have an opening chapter where the general principles of criminal law in its practical application are enunciated, such as, for instance, the rules that—(1) no person is liable to punishment for any act not expressly declared to be an offence; (2) no person can be punished for an act which by virtue of a subsequent law is declared not to be an offence; (3) whoever commits an offence within the kingdom is tried and punished according to the criminal law of the kingdom, and by the tribunals created for the administration of justice, to the exclusion of special tribunals created for temporary purposes. This rule really lays down that no citizen can be deprived of his own judges when he is accused of a criminal offence. (4) A citizen, although he may have been tried in a foreign country for an offence committed within the kingdom, can be retried according to the law of the kingdom. (5) Extradition only applies to foreigners, not to citizens. The preliminary chapter is followed by the classification of offences according to the importance of the punishments the law assigns to them. The lowest degree of offence is denominated “contravention.” It applies mainly to the pettiest offences, or to infractions of police regulations, and can be punished by fine or by imprisonment under a week, or by both fine and imprisonment, limited to a week. Next comes the “délit,” which includes all offences punished by imprisonment over a week and under five years. Then, finally, we arrive at the “crime,” the highest form of offence in French criminal law. It includes all offences subject to a more severe sentence than the punishment assigned to a délit. All cases are held to be crimes where death, life-imprisonment with or without hard labour, deportation out of the kingdom, detention or seclusion in a fortress or other expressly assigned place, are the punishments mentioned by the law. A certain number of explanatory definitions follow, of which the most important concern attempts to commit offences, and in “crimes” they are punishable if the execution of the attempt was only prevented by circumstances beyond the will of the offender, whilst in “délits” an attempt is not punishable as an offence unless the law specially provides that it should be punished. As regards “contraventions,” attempts not carried out are not held to be offences at all. Accomplices are generally subject to the same punishment as the principal. Old offenders (récidivistes) are subject to severer punishments. The usual exceptions as regards responsibility for crime, such as madness and extreme youth and force majeure, are to be found in all codes. The excuse of youth extends to all offenders under the age of sixteen, when the tribunal decides whether the offender has acted without “discernment,” and acquits where the discernment is not found, whilst one-half of the usual punishment is inflicted where discernment is found. Foreign codes differ from the English law in allowing the injured party to claim damages in the criminal suit, appearing as partie civile. On another question there is a wide divergence on the continent of Europe from English law. According to the law of England there is no prescription in criminal law (with a few exceptions created by statute). An offender is always liable to punishment whatever time may have elapsed since the committal of the offence. On the continent of Europe the limitation of a judgment and sentence for a crime is twenty years; five years for a délit, and for a contravention two years. No proceedings can be taken as regards a crime after a lapse of ten years, whilst as regards a délit the limit is three years, and two years for a contravention.
There are three main differences between English criminal procedure and European criminal procedure.
1. A criminal prosecution directed on European criminal procedure at once passes into the hands of the state as an infringement of law which must be repressed, on the ground that the whole community bases its security on obedience to law. In England the repression of all minor crime is left to the injured party.
2. In England every criminal trial from beginning to end is, and has always been, public. Preliminary inquiries into an indictable offence may be, but rarely if ever are, conducted in private. On the continent of Europe, with rare exceptions, all preliminary proceedings in a criminal charge are secret. Outside English-speaking countries this secret investigation continues more or less. But of the two systems, accusatory or inquisitorial—the first meaning the right of the accused to defend himself, the second meaning the right of the state to examine any legal offence in private in order to ensure the safety of society,—the accusatory is gaining ground in every country. In English-speaking countries it is an established law that an accused person should have the right of publicity of the proceedings and the right to defend himself by counsel and by witnesses. In Europe the inquisitorial system is gradually being abandoned. Perhaps the best code of criminal procedure in Europe is that promulgated in Austria in 1873. It followed a fundamental law of the Empire which laid down inter alia that all legal proceedings, civil or criminal, should be oral and public, and that the accusatory system in criminal cases should be adopted. Germany followed this example. Italy, Holland. Switzerland and Spain have followed Austria and Germany as regards the preliminary investigation; Italy and Belgium have surrounded the accused with guarantees against arbitrary confinement before trial; Holland has conferred upon the accused the right of seeing the adverse testimony and of being confronted with the witnesses, and, further, has formally insisted that no insidious questions, such as questions assuming a fact as true which is not known to be true, should be allowed. Other countries still remain on the old lines. But everywhere, whether reform has actually been accomplished or not, there is a demand for even-handed justice, and a growing conviction that the accused should have all his rights, now that society is no longer in danger from undiscovered criminals and unpunished crime. Even in France, the champion of the inquisitorial system, a change is being made. Up to 1897 secrecy was imposed invariably in the preliminary investigation of crime, and was held necessary for the discovery and punishment of the offender. The Loi de l’instruction contradictoire, December 8, 1897, however, was a long step towards complete justice in the treatment of the accused in the preliminary inquiry. The main reform is that the accused, after he has once appeared before the judge and a formal charge has been made against him, is entitled to the assistance of counsel, either chosen by himself or assigned to him if he is poor. If he is in prison he is allowed to communicate freely with his counsel, who is entitled to see all the proceedings, and in every appearance before the judge his counsel accompanies him. There are, however, certain limitations. The counsel cannot address the judge without leave, which may be refused, nor can he insist on any proceeding he thinks necessary in his client’s interest. He can only solicit. He has no right to be present at the examination of witnesses, who continue to be interrogated by the judge alone and not in the presence of the accused; but he must receive twenty-four hours’ notice of every appearance of the accused, and he is entitled to be present whenever his client, after the first formal appearance, comes before the judge. In England, as already pointed out, although the prosecution is in the name of the crown, and although a public prosecutor has been appointed, still as a rule it is conducted by the person injured as the person injured, or by the police.
3. In England the single-judge system is universal, save in appeal; on the continent of Europe plurality of judges is insisted upon, save in the most trivial cases, where the punishment is insignificant. In most countries of the continent of Europe the whole machinery for the prevention, investigation and punishment of crime, is conducted by what is called the parquet, which represents society as a collective unit and not the individual injured. The head of the whole parquet in France is the procureur-général, who holds equal rank with the members of the supreme court. Under him there are procureurs-généraux attached to each of the courts of appeal, of which in France there are twenty-six, and under each of these subordinate procureurs there are procureurs (prosecutors) of a lesser degree. The next stage to the parquet is the juge d’instruction, who corresponds to the English magistrate, and is the most formidable personage in the whole system of French criminal law. He can detain and accuse a person in prison, can send for him at any time and ask him such questions as he pleases.
After the first examination the prisoner is entitled, in most European countries, to the assistance of counsel, but the powers of counsel are so limited that the juge d’instruction has a complete discretionary power regarding the investigation of the case. The natural consequence of this procedure is that the preliminary investigation really decides the ultimate result, and the final trial becomes more or less a solemn form.
The criminal law of Ireland is to a great extent the same as that of England, resting on the same common law and on statutes which extend to both countries or are in almost the same terms, and is administered by courts of assizeIreland. and quarter sessions, and by justices, as in England. In a few instances statutes passed for England or Great Britain before the Union have not been extended to Ireland, or statutes passed by the Irish parliament before the Union or by the British parliament since the Union create offences not known to English law. In Ireland the system of prosecution is nominally the same as in England, but in practice almost all prosecutions are instituted and conducted under the direction of the attorney-general for Ireland, who is a member of the government of the day, and so responsible to parliament, as in the case of the lord advocate. In Ireland, owing to the police being a centralized force, under the management of commissioners residing in Dublin, any prosecution which in England might be conducted by the local police, would in Ireland be conducted under the direction of the chief of the police in Dublin, who is necessarily in close communication with and under the control of the attorney-general.
In Scotland hardly any crimes are constituted by statute law, the common law being to the effect that if a judge will direct any act to be a crime, and a jury will convict, that act is a crime. This great elasticity of the commonScotland. law to include every sort of new crime which might arise was in times past very dangerous to political liberty, as it greatly enlarged the power of the crown to oppress political opponents, but in modern days it has its convenience in facilitating the punishment of persons committing crimes for the punishment of which in England a new act of parliament may be necessary. Criminal procedure in Scotland is regulated by an act of 1887 which greatly simplified indictments and proceedings. The prosecution of crime is in the hands of public officers, procurators fiscal, under the control of the lord advocate. Private prosecutions are possible, but rare. Except in the case of the law of treason, imported from England at the Union, no grand jury is required, and the indictments are filed by the public officer.
The criminal law of England forms the basis of the criminal law of all British possessions abroad, with a few exceptions, e.g. the Channel Islands (still subject to the custom of Normandy) and the anomalous case of Cyprus, whereOther British possessions. Mahommedan law is to some extent in force. As to India, see infra.
In many British colonies the criminal law has been codified or at the least consolidated. Criminal codes have been passed in Canada, New Zealand (1893), Queensland (1899) and W. Australia (1901). Many crown colonies have codes framed on the model prepared by the late Sir R. S. Wright for Jamaica and revised in 1901, and in British Guiana opportunity was taken (in 1893) to abolish the remnants of Roman-Dutch criminal law.
The criminal law of South Africa, which is based on the Roman-Dutch law, including the Constitutio Criminalis Carolina (1532), is not codified. In the Transvaal and Orange River colonies codes of criminal procedure are in force, drawn mainly from the common and statute law of the Cape Colony with the addition of provisions borrowed from English and colonial legislation.
In Mauritius the criminal law is comprised in a penal code of 1838 and a procedure code of 1853, which, with the incorporated amendments, are to be found in the Revised Laws of Mauritius (1903–1904), ii. 466 et seq. The penal code is based on the Code Napoléon.
“Criminal law has everywhere grown out of custom, and has in all civilized states been largely dealt with by direct legislation. In most civilized states (including Japan) it has been codified by statute, to the general satisfaction of theCodification. people; and the conspicuous success of the Indian penal code shows that English criminal law is susceptible of being so treated” (Bryce, Studies, ii. 34).
The expediency, if not the necessity, of codifying the criminal law of England has long been apparent. The writings of Bentham drew attention to many of its substantial defects, and the efforts of Romilly and Mackintosh led to certain improvements embodied in what are known as Peel’s Acts (1826 to 1832). In 1833, at the instance of Lord Chancellor Brougham, a royal commission was appointed to deal with the criminal law. The nature of the instructions indicate the crudity of the ideas then ruling as to codification. The commissioners were directed to digest into one statute all enactments touching crimes and the punishment thereof, and into another statute the provisions of the common unwritten law touching the same. The commission was renewed in 1836 and 1837, and in 1843 a second commission was appointed. Numerous and voluminous reports were published, including (1848) a bill for consolidating and amending the law as to crimes and punishments, and (1849) a like bill for criminal procedure, indicating that the commissioners had in the meantime learned the distinction between substantive and adjective law. Lord Brougham in 1848 unsuccessfully introduced the first bill, and in the end the only fruit of the reports has been certain amendments of procedure in 1851 and the passing of the seven Criminal Law Consolidation Acts of 1861, which deal with the statute law as to theft, forgery, malicious injuries to property, coinage offences and offences against the person. The reports, however, proved of value in the revision of Macaulay’s draft of the Indian penal code, and led to the formation of the Statute Law Committee, which has relieved the statute book of much dead matter. On his return from India, impressed by the success of the Indian penal code, Sir J. Stephen made a strong effort to obtain codification. In 1878, at the instance of Lord Cairns, he prepared a draft code (based on his well-known Digest of the Criminal Law), which was laid before parliament and then submitted to judicial criticism and revision. As a result of this revision a code bill was introduced in 1880; but a dissolution intervened and no serious effort was then made. The obstacle in the way is not lack of reports or digests on which to frame a code, but the incapacity of parliament to do the work itself, and its unwillingness to trust the work to other hands.
The Indian penal code and criminal procedure code, by their history, their form, and the extent and diversity of the races and peoples to which they apply, are perhaps the most important codes in the whole world. While theIndia. East India Company was merely a trading company holding certain forts and trading ports in India and elsewhere, such criminal justice as was administered under its auspices was in the main based on the English criminal law, said to have been introduced to some extent by the company’s charter of 1661, but reintroduced into the presidency laws by later charters of 1726, 1753 and 1774. (See Nuncomar and Impey, by Sir J. Stephen.) From 1771 until 1860 the criminal law administered was the Mahommedan law. When in 1771 the East Indian Company determined to stand forth as diwan, Warren Hastings required the courts of the mofussil (provinces), as distinct from those of the presidency town of Fort William, to be guided in the administration of criminal justice by Mahommedan law, which under the Moguls had been used in criminal cases to the exclusion of Hindu law. Difficulties arose in administration, from the definition of crime, the nature of punishments, and in matters of procedure, which were removed by regulations and by enactments on English lines, especially in Bombay (1827); and great delays and considerable injustice were caused by the want of unity in judicial organization.
Between 1834 and 1837 Macaulay with three other commissioners, Macleod, Anderson and Millet, prepared a draft penal code for India, for which they drew not only upon English and Indian laws and regulations but also upon Livingstone’s Louisiana code and the Code Napoléon. Little or nothing was taken from the Mahommedan law. A revised draft of the penal code by Sir B. Peacock, Sir J. W. Colville and others was completed in 1856. In framing it the reports of the English criminal law commissioners (published after Macaulay’s draft code) were considered. The draft was presented to the legislative council in 1856, but owing to the mutiny and to objections from missionaries, &c., its passing was delayed till the 6th of October 1860. A draft scheme of criminal procedure was prepared in India in 1847–1848, which, after submission to a commission in England in 1853 (Government of India Act 1853), was moulded into a draft code which passed the India legislative council in 1861 (Act No. XXV.) and came into force in 1862. It has been re-enacted with amendments in 1872 (Act X.), 1882 (Act X.) and 1898 (Act V.).
The result is that in India the criminal law is the law of the conqueror, though for many civil purposes the law of race, religion and caste governs. Under the codes, one set of courts has been established throughout the country, composed of well-paid, well-educated judges, most of the higher judicial appointments being held by Englishmen; all those who hold subordinate judicial posts at the same time are subjected to a combined system of appeal and revision. The arrangement of the Indian penal code is natural as well as logical; its basis is the law of England stripped of technicality and local peculiarities, whilst certain modifications are introduced to meet the exigencies of a country such as British India. It opens with a chapter of general explanations, and interpretations of the terms used throughout the code. It then describes the various punishments to which offenders are liable; follows with a list of the exceptions regarding criminal responsibility under which a person who otherwise would be liable to punishment is exempted from the penal consequences of his act, such as offences committed by children, by accident or misfortune without any criminal intention, offences committed by lunatics, offences committed in the exercise of the right of private defence. It may be worth while to add, as an innovation on English law, that an act which results in harm so slight that no person of ordinary sense and temper would complain of such harm is not considered an offence under the code. Then follows a chapter on abetment, in other words, the instigation of a person to do a wrongful act. The next chapters deal with offences against the public, including the state, the army and navy, public tranquillity, public servants, contempts of the lawful authority of public servants, perjury; offences relating to coin and government stamps, to weights and measures; offences affecting the public health, safety, convenience, decency and morals; offences relating to religion; and offences relating to the human body, from murder down to the infliction of any hurt. The code then passes on to offences against property; offences relating to forgery, including trade marks, criminal breach of contracts for service; offences relating to marriage, defamation, criminal intimidation, insult and annoyance. Under this last head is included an attempt to cause a person to do anything which that person is not legally bound to do, by inducing him to believe that he would otherwise become subject to Divine displeasure. The last chapter deals with attempts to commit offences punishable by the code with transportation or imprisonment, and the punishment is limited to one-half of the longest term provided for the offence had it been carried out.
One peculiarity of the Penal Code which has proved eminently successful lies in the system of illustration of the offence declared in every section by a brief statement of some concrete case. For instance, as illustration of the offence of an attempt to commit an offence the following examples are given:—
I. “A. makes an attempt to steal some jewels by breaking open a box, and finds on opening the box there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section.
II. “A. makes an attempt to pick the pocket of Z. by thrusting his hand into Z.’s pocket. A. fails in the attempt in consequence of Z. having nothing in his pocket. A. is guilty under this section.”
Passing on to the system of criminal procedure which is set forth in detail in the Code of Criminal Procedure as amended in 1898, it is no doubt modelled on the English system, but with considerable modifications. The principalIndian code of criminal procedure. steps are—(1) arrest by the police and inquiries by the police; (2) the issue of summons or warrant by the magistrate; (3) the mode of procedure before the magistrate, who may either try the accused himself or commit him to the sessions or the High Court, according to the importance of the case; (4) procedure before the court of session; (5) appeals, reference and revision by the High Court.
Elaborate provision is made for the prevention of offences, as regards security for keeping the peace and for good behaviour, the dispersion of unlawful assemblies, the suppression of nuisances, disputes as to immovable property, which in all Oriental countries constitute one of the most frequent causes of a breach of the peace.
Ample provision is thus made for the prevention of offences, and the code next deals with the mode of prosecution of offences actually committed.
As a general rule, every offence is inquired into and tried by the court within the local limits of whose jurisdiction it was committed. Differing from the practice of continental countries, all offences, even attempts, may be prosecuted after any lapse of time. As in England, there is no statutory limitation to a criminal offence.
A simple procedure is provided for what are called summons cases, as distinguished from warrant cases—the first being offences for which a police officer may arrest without warrant, the second being offences where he must have a warrant, or, in other words, minor offences and important offences. In summons cases no formal charge need be framed. The magistrate tells the accused the particulars of the offence charged; if he admits his guilt, he is convicted; if he does not, evidence is taken, and a finding is given in accordance with the facts as proved. When the complaint is frivolous or vexatious, the magistrate has the power to fine the complainant. The code gives power of criminal appeal which goes much further than the system in England.
In cases tried by a jury, no appeal lies as to matters of fact, but it is allowed as to matters of law; in other cases, criminal appeal is admitted on matters of law and fact.
In addition to the system of appeal, the superior courts are entrusted with a power of revision, which is maintained automatically by the periodical transmission to the High Courts of calendars and statements of all cases tried by the inferior courts; and at the same time, whenever the High Court thinks fit, it can call for the record of any trial and pass such orders as it deems right. All sentences of death must be confirmed by the High Court. No appeal lies against an acquittal in any criminal case. This system of appeal, superintendence and revision would be totally inapplicable to England, but it has proved eminently successful as applied to the present social condition of the inhabitants of India. The appeals keep the judges up to their work, revision corrects all grave mistakes, superintendence is necessary as a kind of discipline over the conduct of judges, who are not subjected, as in England, to the criticism of enlightened public opinion.
These Indian codes form the basis of the penal, &c., codes in force in Ceylon (superseding there the Roman-Dutch law), the Straits Settlements, the Sudan and the East Africa protectorates.
It has already been stated that most European states have codified their criminal law. The earliest of continental codes is that of Charles V., promulgated in 1532, and known as Constitutio Criminalis Carolina. Austria madeForeign codes. further codes in 1768 (Constitutio Criminalis Theresiana) and 1787 (Emperor Joseph’s code). A new code was framed in 1803, and amended in 1852 by reference to the Code Napoléon; and in 1906 a completely new code existed in draft. The Hungarian penal code dates from 1880. The Bavarian code of 1768 of Maximilian, revised in 1861, and the Prussian code of 1780, have been superseded by the German penal code of 1872.
The most important of the continental criminal codes are those of France, the Code Pénal (1810) and the Code d’Instruction Criminelle (1808)—the work of Napoleon the Great and his advisers, which professedly incorporate much of the Roman law.
The Belgian codes (1867), and the Dutch penal code (1880), closely follow the French model. In Spain the penal code dates from 1870, the procedure code from 1886. The Spanish American republics for the most part also have codes. Portugal has a penal code (1852). In Italy the procedure code and the penal code, perhaps the completest yet framed, are of 1890. The Swedish code dates from 1864. The Norwegian code was passed in May 1902, and came into force in 1905. Japan has a code based on a study of European and American models; and Switzerland is framing a federal criminal code.
In the United States no federal criminal code is possible; but most states, following the lead of Louisiana, have digested their criminal law and procedure more or less effectually into penal codes. (W. F. C.)
- ↑ “It is founded,” said Sir J. Fitzjames Stephen, writing in 1863, “on a set of loose definitions and descriptions of crimes, the most important of which are as old as Bracton. Upon this foundation there was built, principally in the course of the 18th century, an entire and irregular superstructure of acts of parliament, the enactments of which were for the most part intended to supply the deficiencies of the original system. These acts have been re-enacted twice over in the present generation—once between 1826 and 1832 and once in 1861; besides which they were all amended in 1837. Finally, every part of the whole system has been made the subject of judicial comments and constructions occasioned by particular cases, the great mass of which have arisen within the last fifty years.” (View of the Criminal Law of England, by J. Fitzjames Stephen.)
- ↑ i.e. Itinerant justices. From the Latin in itinere, on a journey.