6

of time, if any, which will be a bar to criminal prosecution; CHAP. XVI. the aiding and abetting of crime; criminal attempts; cumulative punishments. Here also we expect to find those distinctions between different grades of crime which occur in almost all systems. The distinction drawn by English law between felonies' and 'misdemeanours' is as familiar as it has become unmeaning. The French Code opens with a threefold classification of wrongful acts into contraventions,' 'délits,' and 'crimes,' according to their being respectively punishable by 'peines de police,' ' peines correctionnelles,' or 'peines afflictives ou infamantes;' and the German Code draws a similar distinction between Uebertretung,' Vergehen,' and 'Verbrechen.' The criminal Code Bill, which has now for several Sessions awaited the leisure of Parliament, recognises only the distinction between indictable offences and others, expressly abolishing that between felonies and misdemeanours.

To the introductory portion of a Criminal Code belong also provisions as to the relation of the prosecution of an offence to the recovery in a civil action of damages for the injury caused by it to an individual. Such is the rule of English law that the civil remedy for a wrong which also amounts to a felony is suspended till the felon has been convicted2, and such is the article of the Code pénal which declares that la condamnation aux peines établies par la loi est toujours prononcée sans préjudice des restitutions et dommages-intérêts qui peuvent être dus aux parties 3.'

part.

ii. The special part contains a classification of criminal Its special acts, and specific provisions with regard to the penal consequences of each.

Such acts may be, in the first place, distinguished into The list of

1 E. g. Code d'Instruction Crim. art. 637; Strafgesetzbuch, art. 65. In England the rule 'nullum tempus occurrit regi' still holds good, except in so far as it has been derogated from by statute. See such statutes, in Stephen, Hist. Crim. Law, ii. p. 2.

2 Wellock v. Constantine, 2 H. and C. 146, but the rule only applies where the plaintiff is the injured party, Osborne v. Gillett, L. R. 8. Ex. 88.

Art. 10; cf. Dig. xlvii. 10. 7.

offences.

CHAP. XVI. offences committed directly against the State, or community generally, and offences the mischief of which is primarily directed against particular individuals.

Against the State,

The State, or community generally, is injured by :

1. Acts tending to interrupt its friendly relations with foreign powers; whence the enactments against foreign enlistment,' and against libelling or compassing the death of foreign sovereigns.

2. Acts tending to the subversion of the government, such as assassination of princes, rebellion, and similar acts of High Treason.

3. Acts tending to the subversion of the liberties of the subject1.

4. Riots and other offences against public order and tranquillity.

5. Abuse of official position.

6. Resistance or disobedience to lawful authority.

7. Obstruction to the course of justice by perjury, or falsification of documents, or rescue or harbouring of offenders. 8. Maintenance of suits 2.

9. Omission to give information, or giving false information, as to births, deaths, and similar matters, included by the French under the phrase 'état civil.'

10. Offences relating to the coinage, or to weights and

measures.

11. Cruelty to animals, though it may be doubted whether this is forbidden as brutalizing to the public generally, or as offensive to the humane sentiments of individuals, or whether it does not imply the recognition of quasi-rights in animals, analogous to the Roman prohibition of cruelty to slaves3.

12. Acts injurious to public morality, such as bigamy, and, under some systems, adultery.

Cf. Code Pénal, tit. i. ch. ii.

2 Cf. Metropolitan Bank v. Pooley, 10 App. Ca. 210.

3 Cf. supra, p. 287.

'Code Pénal, art. 337; Strafgesetzbuch, art. 171; Indian Penal Code, art. 497.

13. Acts injurious to the public health, such as neglect of CHAP. XVI. vaccination, and various forms of nuisance.

dividuals.

Many wrongful acts, affecting primarily individuals, and against intherefore giving rise to remedial rights in private law, are also so harmful to society as to be punished by it as crimes1. They may perhaps be classified under the following heads :—

1. Violence to the person, in its various kinds and degrees of homicide, wounding, rape, assault, or imprisonment.

2. Defamation of character, sometimes justifiable when shown to be true and for the public benefit.

3. Acts offensive to religious feeling 2.

4. Offences against family rights, such as abduction of children.

5. Offences against possession and ownership, such as theft and arson, or other wilful destruction of property.

6. Certain breaches of contract, of a kind likely to cause social inconvenience, or for which a civil remedy would be valueless 3.

7. Fraudulent misrepresentations and swindling.

It may be remarked that offences against the property of the State are often assimilated to offences against that of individuals; and, in many instances, particular kinds of State property are, for the purposes of the criminal law, vested by statute in certain State functionaries *.

IV. Adjective criminal law, 'Penal procedure,'' Instruction Criminal procedure.

Supra, pp. 267, 269.

2 On the question whether this, or mere repugnancy to the Christian religion, be the test of a blasphemous libel, see the summing up of Lord Coleridge, C. J. in Foote's case, and Sir J. F. Stephen's History of the Criminal Law, ii. P. 475.

3 E. g. the provisions in Irish Statutes against ploughing grass lands. Cf. in Holtzendorff's Encyclopädie, the art. 'Vertragsverletzung.'

Thus by 7 W. IV and 1 Vict. c. 36. s. 40 articles sent by post are, for the purposes of the Act, made the property of the Postmaster-General. It would have been sufficient, and in accordance with fact, to declare that such articles are in his possession. This rule is peculiar to the law of England. For a comparative view of the laws of other countries upon the subject, see an art. by M. de Kirchenheim in the Revue de Droit International, xiv. p. 616.

6

CHAP. XVI. criminelle,' Strafprozess,' is the body of rules whereby the machinery of the Courts is set in motion for the punishment of offenders.

Jurisdiction.

Court.

Procedure.

6

It consists usually of two species; a simpler, 'peines de police,' summary convictions,' applicable, unless with the consent of the accused, only to trifling transgressions; and a more solemn, for the trial of serious crimes.

Each of these consists of several stages, having a strong resemblance to the stages of procedure in private law1. In the more solemn procedure we may distinguish :

i. The choice of the proper jurisdiction.

ii. The choice of the proper Court.

iii. The procedure proper, consisting of—

1. The summons, by which the accused is called upon, or the warrant, under which he is compelled, to appear to answer the charge.

2. The preliminary investigation, terminating in the discharge of the accused, or in his being committed for trial.

3. The measures ensuring that the accused shall be forthcoming for trial, viz. either imprisonment or security given by himself or his friends.

4. The pleadings, by which on the one hand the prosecution informs the Court and the accused of the nature of the charge against him, and, on the other hand, the accused states the nature of his defence.

5. The trial, conducted on a prescribed plan and in accordance with rules of evidence which differ in certain respects from those which prevail in civil suits 2.

6. The verdict and judgment.

1 Supra, p. 291. The resemblance is stronger in England than on the continent, which is still under the influence of the inquisitorial' method introduced into Germany by the Constitutio Criminalis Carolina.

2 Supra, p. 293. On the tendency towards an assimilation of the rules of evidence in civil and criminal cases, see the remarks of M. A. Prins, Étude sur la Procédure pénale à Londres, 1879, p. 4.

7. The procedure on appeal, so far as an appeal is per- CHAP. XVI. missible.

iv. Execution, which is carried out by the functionary to Execution. whom the force of the State is entrusted for the purpose.

, prosecutor.

The bringing of criminals to justice may be confided, as Public it generally is on the continent, to a 'ministère public,' 'Staatsanwaltschaft,' or left, as it generally has been in England, and was at Rome, to the industry of the injured individual1.

State as a

person.

V. Besides its rights and duties as the guardian of order, Law of the in which respect little analogy can be remarked to anything juristic in private law, the State as a great juristic person enjoys many quasi-rights against individuals, as well strangers as subjects, and is liable to many quasi-duties in their favour. These rights and duties closely resemble those which private law recognises as subsisting between one individual and another 2. The State, irrespectively of the so-called 'eminent domain' which it enjoys over all the lands forming its territory, is usually a great landed proprietor; and in respect of its land is entitled to servitudes over the estates of individuals, and subject to servitudes for the benefit of such estates. It owns buildings of all sorts, from the palace to the police-station, and a large amount of personal property, from pictures by Titian and Tintoretto to cloth for making the prison dress of convicts. It carries on gigantic manufacturing undertakings, lends and borrows money, issues promissory notes, and generally enters into all kinds of contracts. It necessarily

1 A Roman form of indictment is preserved in the following fragment of Paulus: 'Consul et dies, apud illum praetorem vel proconsulem, Lucius Titius professus est se Maeviam lege Iulia de adulteriis ream deferre, quod dicat eam cum Gaio Seio, in civitate illa, domo illius, mense illo, consulibus illis, adulterium commisisse.' Dig. xlviii. 2. 3. The office of 'Director of Public Prosecutions' has been established in England by 42 and 43 Vict. c. 22.

2 See the remarks of Grotius upon the transactions of those qui summam habent potestatem . . . in his quae privatim agunt.' De I. B. et P. ii. 2. 5.3.