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 _delit_, and summary offence to
_contravention_.
Elements of criminal responsibility.
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 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 (S 121 A), and when it goes beyond agreement in the case of
other offences it is merely a form of abetment or participation (S 107).
Definitions of particular crimes.
The criminal law of England[1] 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 includes (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.
Jurisdiction.
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._ No 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.
Offences on the high seas.
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 offences 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.
Offences committed on land outside England.
Misdemeanours committed by public officers in colonies.
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 in
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, S 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 principle 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_).
Punishment.
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
changes 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, SS 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, S 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 L20.
(c) In the case of young persons, between twelve and sixteen years,
imprisonment not over three months, or fine not exceeding L10.
(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 forces a perpetuite ou a temps_,
_deportation_, _detention_, _reclusion_; (2) _infamantes_, viz.
banishment and civil degradation; (3) _peines en matiere
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 _recidivistes_, police supervision and first
offenders (_Loi Berenger_).
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 _prision_), 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 (_caucion_). 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:--
Tribunals.
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 successors of the justices _in
eyre_[2] 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.
Special tribunals.
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 or 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.)
Ecclesiastical courts.
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
over 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.
Procedure.
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 was 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.
The grand jury.
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 where 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.
Coroner's courts.
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 jury 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.
Trial by jury.
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 guilty 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.
Summary trials.
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, 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-examine 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.
Procedure for summary offences.
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 L100, 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.
Appeal.
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 the 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.)
Costs.
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
undertakes 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.
Non-British criminal procedure.
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 throughout 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 "_delit_," 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 _delit_. 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 "_delits_" 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 (_recidivistes_) 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 _delit_, 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 _delit_ 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-general_, who holds equal rank with the members of the
supreme court. Under him there are procureurs-generaux 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.
Ireland.
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 assize 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.
Scotland.
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 common 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.
Other British possessions.
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, where 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 Napoleon.
Codification.
"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 the 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.
India.
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 the 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 Napoleon. 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."
Indian code of criminal procedure.
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 principal 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.
Foreign codes.
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 made 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 Napoleon; 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 Penal_ (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.)