1902 Encyclopedia > Criminal Law

Criminal Law




CRIMINAL LAW. A crime is an offence which the law punishes directly, as distinguished from an offence which it punishes indirectly by giving an action for damages to the person injured. The criminal or penal law is that portion of the law which deals with crimes. Sometimes it is attempted to distinguish crimes form civil injuries by saying that the former are offences against the state, the latter offences against individuals, or again by saying that the former are prosecuted by the state, the latter by private persons, But all illegal acts are offences against the state, and in England the state is not, nominally at least, the prosecutor of criminal offences. Civil injuries, or torts, as they are called in the law of England, are offences for which the injured person may sue in a court of justice. Torts and crimes do not therefore necessarily exclude each other, for the same act may be both a tort and a crime in the sense that the injured person may sue for damages, and the offender may likewise be prosecuted and punished. Further, it should be observed that many offences which are crimes in the sense of being directly punishable, are, so far as the morality of the act is concerned, far removed from the class of crimes. To allow your chimney to go on fire is a crime in the sense that it is punishable by fine, but it is not a crime in the sense of the preceding article, or in the ordinary accepta-tion of the term.

The law of England on the subject of crimes is, like the rest of the law, composed of a large number of enactments, restin, on a basis of common law. Its leading definitions and distinctions are derived from the common law, modified by judicial interpretation and by statute. A few of the general principles of the criminal law of England will be stated here for information as to the law relating to specific crimes reference should be made to the respective heads.

The absence of systematic arrangement and of any precise definition of crimes is due to the historical character of the criminal law. "It is founded," says a high authority, "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 com-ments 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).

A crime being defined as an action specifically forbidden under penalty of direct punishment, it may be stated, without entering into a minute analysis, that to render a person liable to punishment he must have a guilty inten-tion, or, as it is called in English law, malice. This malice will be inferred from the fact that the forbidden action has been done ; a man will be presumed to have intended the natural consequences of his own acts. The inference, however, may be rebutted by evidence showing that the criminal intention required to constitute a crime was not as a matter of fact present. And there are certain conditions from which the law will infer the impossibility of any such intention, A child under seven is held to be incapable of committing a crime. If a married woman commits an alleged crime in presence of her husband, she will be held to have acted under his compulsion. The state of mind described as insanity, also excludes the possibility of criminal intention.

Crimes are divided into treasons, felonies, and mis-demeanours. The first class includes offences against the state, e.g., violence to the person of the king, or resistance to the authority of the sovereign power. The distinction between felonies and misdemeanours is not so easily drawn, and is founded if anything on the nature of the punishment and not of the crime in such case. In the definitions of crime in Bracton, Misdemeanours appear as a less serious class of crimes, after the graver crimes of treason, crimen falsi, homicide, mayhem, arson, rape, and theft have been ,described. They are "minor or lighter crimes, prosecuted civilly as in personal actions for injuries." They are regarded as of the nature of wrongs done to the sovereign power. In a trial for felony the jury are required to make true deliverance, between the queen and the prisoner at the bar. In a trial for inisdemeanour they are to try the issue joined between the queen and the defendant. The principal com-men law misdemeanours—libel conspiracy, and nuisance—have an obviously direct reference to the pubic peace, and may without much violence be regarded as grievances to the sovereign power itself. In Russell On Crimes, a mis-demeanour is said to be the name generally applied to offences for which the law has not provided a particular name. But so many crimes have been created misdemean-ours by statute which do not differ in character from felonies, that no distinction founded on the nature of the crime can be drawn between them. Nor can they be dis-tinguished by the greater or less severity of the punishment, for some misdemeanours are punished more severely than felonies. Besides, however, the differences in the mode of trial noted above, felonies differed from misdemeanours inas-much as they involved a forfeiture of property—a distinc-tion which no longer exists, since forfeiture for felony was abolished by 33 and 34 Vict. c. 23. And in general there are greater facilities for arresting the criminal in case of felony than in misdemeanours.1 It is unfortunate that a distinction so fundamental should be so utterly vague. All the crimes known to the law may be divided into felonies and misdemeanours, for treason is after all a case of felony, but it is impossible to say what felony is or what a misde-meanour is without an enumeration of the specific crimes which are ranked under each head. The Consolidation Acts form a classification of crimes which is more easily understood, although it does not cover the whole of the criminal law. Thus the Acts of 1861 (24 and 25 Vict. cc. 96, 97, 98, 99, and 100) relate respectively to larceny, malicious injuries to real property, forgery, coinage, and offences against the person.

The definitions of particular crimes are still to be sought in the common law and the decisions of the judges. The Consolidation Acts for the most part leave them as they stood, e.g., the Larceny Act 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 some-times 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 set aside by the judges as not being within their definition of the particular crimes alleged, and the legislature has constantly had to interfere. In this way the penalties of larceny were gradually extended to embezzle-ment, frauds by trustees, &c.

Attempts to commit crimes are themselves crimes. It is laid down in Russell On Crimes (vol. i. p. 189) that "an attempt to commit a felony is a misdemeanour, and an attempt to commit a misdemeanour is a misdemeanour, whether the offence be so by common law or by statute." An attempt to murder was at common law no more than a misdemeanour punishable by two years’ imprisonment. This was the case until 1861 ; but now by the 24 and 25 Vict. c. 100 (Offences against the Person Act), any person attempting by the rneans specified therein, or by any other means, to commit murder, is guilty of felony and punish-able by penal servitude for life or for any term not less than three years, &c., or to be imprisoned for not less than two years with or without hard labour or solitary confinement.Persons accused of a crime may be either principals or accessories, and these are further distinguished into princi-pals of the first and second degree, and accessories before



FOOTNOTES (page 588)

1 Any one who has obtained a drove of oxen or a flock of sheep by false pretences may go quietly on his way and no one, not even a peace officer, can apprehend him without a warrant, but if a man offers to sell another a bit of dead fence supposed to have been stolen, he not only may but is required to be apprehended by that person (Greaves, Criminal Law Consolidation Acts).



and after the fact. Principals in the first degee are those who have actually and with their own hands committed the fact. Principals in the second degree are those who were present aiding and abetting at the commission. An acces-sory before the fact is one who, being absent at the time of the offence committed, doth yet procure, counsel, com-mand, or abet another to commit a felony. And an acces-sory after the fact is one who, knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon. Participation in the commission of a felonious act in any of these ways is a felony (Russell On Crime, vol. i. p. 156). By the Accessories and Abettors Act (24 and 25 Vict. c. 94) accessories before the fact may be tried and punished as principals, and accessories after the fact may be indicted as such or as substantive felons.

Criminal procedure in England is distinguished by several special features, the most remarkable of which is its close similarity to procedure in ordinary civil cases. Crimes are left, like civil injuries or breaches of contract, to be prosecuted by the persons injured, and the nature of the trial, the character of the tribunal, and the rules of evidence are the same as in an ordinary litigation at common law. Mr J. F. Stephen, in the excellent treatise already quoted, aptly distinguishes the English systern as "litigious" from the "inquisitorial" system prevailing in France and other countries.

Preliminary jurisdiction in criminal cases is possessed by the justices of the peace, who may also under special Acts convict in a summary manner for offences of minor importance. When the justices are satisfied that there is a prima facie case they commit the prisoner for trial either at the quarter sessions or at the assizes. (See COURTS.) The following cases are not liable at quarter sessions:—Misprision of treason ; offences against the queen’s person, prerogative, &c., or aaaffist Parliament; offences subject to the penalties of praemunire ; blasphemy ; unlawful oaths (administering or taking ; perjury and false affirmation ; setting fire to crops of grain, wood, heath, &c. ; bigamy abduction ; concealment of birth; bankruptcy offences ; blasphemous libels ; bribery ; conspiracies for offences not triable at sessions ; stealing records or documents, &c. A trial at quarter sessions or assizes begins by the presenta-tion of an indictment to the grand jury, who are selected for the occasion, to the number of from twelve to twenty--three, from the gentlemen of standing within the district for which the court is sitting. The judge delivers a charge to the grand jury, shortly pointing out the nature of their duties, and directing their attention to any peculiarities in the cases that are to come before them. The grand jury discuss each case seriatim, and hear witnesses in private (in general only those for the prosecution), and if they are satisfied that there is a prima facie case against the prisoner they return a true bill, and the case goes to trial before the judge and a common jury. If the grand jury do not return a true bill, the case is at an end, unless there has been a verdict on a coroner’s inquisition, or unless it is a case which may be proceeded on by way of information. A criminal trial in open court now differs in very few points from any ordinary civil cause. For a long time prisoners were not allowed to have the benefit of professional advocacy except in cases of high treason, and the privilege was not conceded until the Prisoners’ Counsel Act of 1836. Sir J, Stephen fixes at the same date the entire exemption of prisoners from interrogation,—a practice which would appear to be connected, in legal reason, with the rule which made a party to a cause an incompetent witness. In this respect the contrast between a criminal trial in England and a criminal trial in France is very striking. The constant interrogation and browbeating of the prisoner by the judge, consistent as it may be with the inquisitorial theory of their procedure, is always revolting to English men, accustomed to see in every criminal trial a fair fight between the prisoner and the prosecution. Confessions, which are the object of many proceedings in a French inquisition, are regarded with suspicion by the English law. During the spring, assizes of 1877 a prisoner was charged with having committed a murder twenty years ago, 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.1 Although a prisoner may have counsel to defend him if he can afford to pay the customary fee, no provision is made by law for his being so represented. But the custom of the courts has imposed upon judges exceptional care for the prisoner’s interests, and on the prosecuting counsel exceptional forbearance when the prisoner is undefended. It was often said before the Prisoners’ Counsel Act (and it is still true) that the judge is the prisoner’s counsel. In exceptional circumstances the judge will call on some member of the bar to undertake the prisoner’s defence.

As there is no provision made by law for the prisoner’s defence, so there is no public prosecutor. The absence of such an officer has long been an admitted defect in the English system, but no successful attempt has yet been made to deal with it. It is generally agreed that an official staff of prosecuting counsel would not be desirable. But there certainly ought to be some public officer charged with the preparation, if not of all criminal cases, at least of those which the injured person does not wish to conduct himself. At present a private Person is bound over by the magistrates to prosecute at his own expense, and the con-sequence often is that many persons will forego an injury rather than submit to the trouble and risk of a prosecution. The prosecutor can recover his costs from the county, unless they are disallowed by the judge. The county again is entitled to be recouped by the Treasury, and between these two bodies there has been a standing feud on the subject of criminal costs for some years.

Properly speaking there is no appeal in criminal trials. The verdict of the jury is final. Any substantial defect or informality in the procedure may be taken before the Queen’s Bench by writ of error, but such cases are not now of frequent occurrence. And if any question of law arises at the trial, the judge may reserve it for the opinion of the court for the consideration of crown cases reserved, by whom the conviction may be either quashed or con-firmed.

Punishments under the common law were excessively severe, but their operation was mitigated by the singular privilege of BENEFIT OF CLERGY (q.v.). Blackstone laments that "among the variety of actions which men are daily liable to commit, no less than 160 bave been declared by Act of Parliament to be felonies without benefit of clergy, or, in other words, to be worthy of instant death." The more atrocious punishments have disappeared from the law, and the penalty of death is now practically restricted to murder. Fine, imprisonment with or without hard labour and with or without solitary confinement, and penal servi-tude,2 are the most usual punishments, and a wide discretion is left to the judges.



FOOTNOTES (page 589)

(1) "No confession made by the prisoner is admissible which is made in consequence of any inducement of a temporal nature, having refer-ence to the charge against the prisoner, held out by a person in author-ity" (Roscoe’s bigest of Criminal Evidence). Notwithstanding the general bearing of the law against confessions, it is held that a confession obtained by artifice or by spiritual solicitation may be used in evidence.

(2) By 16 and 17 Vict. c. 99, all sentences of transportation were con-verted into penal servitude.



By the Penal Servitude Act, 1861, the shortest period of penal servitude for an offence committed after the passing of the Act is five years, arid where any previous Act had fixed a maximum of less than five years, the period of five years is to be substituted for such shorter term. The same Act gives the form of licence under which a convict may be allowed to be at large during the remaining portion of his time, subject to the condition of abstaining from crime and from association with criminal characters, &c., and of preserving and producing his licence when called upon by a magistrate or officer. By the Prevention of Crimes Act, 1871, every holder of a licence under the Penal Servitude Acts must notify his residence and any change of residence to the police (section 6). The Prevention of Crimes Act, 1871, likewise repeals the Habitual Criminals Act of 1869, and substitutes new provisions, of which the following, are the most important. Section 5 provides for the registering and photographing of criminals.1 Section 7 specifies circumstances under which a person who has been twice convicted on indictment may, within seven years of the expiration of the last of the two sentences, subject himself to imprisonment with or without hard labour for a term not exceeding one year,—e.g., if it appears to a magistrate that "there are reasonable grounds for believing that he is getting his livelihood by dishonest means;" or if he refuses to give his name and address when charged with an offence before the magistrates ; or if he is found in any place public or private under circumstances which satisfy the court that he was about to commit, or waiting for an opportunity to commit, an offence; or if he is found in a dwelling-house, &c., without being able to give a satisfactory account of his presence. By section 8, "where any person is convicted on indictment of a crime, and a previous conviction of a crime is proved against him, the court having cognizance of such indictment may, in addition to any other punish-ment which it may award to him, direct that he is to be subject to the supervision of the police for a period of seven years, or such less period as the court may direct, commencing immediately on the expiration of the sentence passed on him for the last of such crimes." Persons subject to police supervision, like convicts out on ticket-of-leave, must notify their residence to the police, and males must report themselves once a month. The Larceny Act of 1861 had made a previous conviction for felony or indictable misde-meanour, or two summary convictions, matter of aggravation on a charge of simple larceny; and section 116 of that Act provides for the trial of the quesion whether there has been such a previous conviction. It is only after the prisoner has been found guilty of the subsequent offence that the question whether he has been previously convicted can be gone into, unless he offers evidence of good character in the trial for the offence, in which case the prosecutor may prove the previous conviction. This section is adopted in the Prevention of Crimes Act, 1871.

The prerogative of pardon, as exercised by the Home Secretary, occasionally has the efftect of a rehearing of the case, e.g., when new evidence is discovered after the trial or the verdict of the jury gives dissatisfaction to the public. In such cases the Home Secretary, after consultation with the judge, or if necessary with such skilled persons as be may select, decides on his own responsibility to grant or withhold a pardon.2 This is not perhaps the most satisfac-tory way of reviewing the sentence of a criminal court.

The distinguishing feature of Scotch criminal law is the existence of a public prosecutor. At common law persons injured have the right to prosecute, but "private prosecu-tion, except in the most trifling summary complaints, is now wholly unknown in practice" (Macdonald’s Criminal Law of Scotland). The lord advocate and his deputies are the public prosecutors in the Supreme Court; in the inferior courts the procurator-fiscal prosecutes. The public prose-cutor cannot be compelled to prosecute, nor can he be prevented from prosecuting. (E. R.)



FOOTNOTE (page 590)

(1) A Register of Habitual Criminals in England and Wales for the years 1869-76 has recently been printed in the printing works of Her Majesty’s prison, Brixton. "The list," says the Times of March 7, 1877, "has been framed by separating from the great mass of returns those which refer to persons who have been convicted on indictment of a crime, and thereupon have had a previous conviction proved against them. It is thus a complete register of habitual and professional criminals, and has been printed for circulation among the police and the authorities of prisons, in order to enable them to identify persons who come undertheir charge." The proportion of habitual criminals born in different localities gives some curious results. Thus the town of Stafford heads the list with 1·881 to every 1000, followed closely by Worcester, Taunton, and Lancaster, all of them towns with under 20,000 inhabi-tants. On the other hand, London, which produces the largest number (1503), stands at the rate of only ·461 to the 1000. Of the habitual criminals on the list 1082 come from Ireland, and 158 from Scotland.

(2) A good example will be found in the case of Smethurst, reported at length in Stephen’s View of the Criminal Law.









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