1 From The Nineteenth Century. A SKETCH OF THE CRIMINAL LAW. * THE criminal law may be considered under two great heads, Procedure and the Definitions of Offences. In a systematic exposition of the law such as a penal code, the part which defines crimes and provides for their punishment naturally precedes the part which relates to procedure, inasmuch as the only purpose for which the latter exists is to give effect to the former; but in an historical account of the growth of a body of law as yet uncodified, an account of the law of pro. cedure naturally precedes an account of the law of crimes and punishments, because the institutions by which the law is administered have been as a matter of fact, and in the earlier stages of legal history must be in most cases, the organs by which the law itself is gradually produced. Courts of justice are established for the punishment of thieves and murderers long before any approach has been made to a careful definition of the words "theft" and "murder," and indeed long before the need for such a definition is felt. For these reasons I begin this sketch of the criminal law by giving some account of the English courts of criminal jurisdiction. I then pass to the procedure observed in them, and thence to the definitions of crimes with which they have to deal. The ordinary criminal courts in England are: (1.) The Queen's Bench Division of the High Court of Justice. (2.) The Assize Courts. (3.) The Central Criminal Court. (4) The Courts of Quarter Sessions. Each of these courts has its own history. The administration of justice in England came, by steps which I need not try to trace, to be regarded as one of the great prerogatives of the king-perhaps as his greatest and most characteristic • I have not referred to authorities, as they would have been of little interest to general readers. I hope, however, to treat the whole matter at length, and with full reference to authorities, in a work on which I have been engaged for many years, and which I hope will shortly appear, on the "History of the Criminal Law." This article may be regarded as an abridgment of parts of it. prerogative; and one of the most striking effects of the Norman Conquest was the degree to which it strengthened this prerogative and centralized the administra tion of justice. The prerogative was exercised in very early times through the Curia Regis, from which in course of time were derived the king's courts of justice, the two Houses of Parliament, the Privy Council, and the different offices of State. The head officer of the Curia Regis was called the "Capitalis Justiciarius Angliæ," and his office was of such dignity that in the king's absence on the Continent he acted as viceroy. The court also contained, amongst other officers, an indefinite number of justitiarii who performed judicial and administrative duties when and where they were directed to do so by special writs or commissions. The steps by which Parliament on the one hand, and the Privy Council and other executive officers on the other, came to be separated from the king's court and to have an independent existence, need not here be noticed. The courts of justice were derived from it as follows. The life of the kings of England in early times can be described only as an incessant journey. King John, for instance (of whose movements an ephemeris founded upon official documents still in existence has been published), seems for years never to have lived for a week at a time at any one place. The king's officers, and amongst others his judges, travelled with him, and the unfortunate suitors had to follow as best they could. Evidence still exists of the intolerable hardships which this state of things produced. One of the articles of Magna Charta was intended to remedy them. It runs, "Communia placita non sequantur curiam nostram, sed teneantur aliquo loco certo." This was the origin of the great civil court, the Court of Common Pleas, which from that time forward was separated from the Curia Regis and was held as a separate fixed court of justice certo loco, namely in Westminster Hall. The Court of Exchequer, which was originally a court of revenue business only, also became stationary about the same time probably indeed it was always held at the place where the treasure was kept; but | highest antiquity. As I have already the legal business of the king's court, not said, the Curia Regis contained an undone in either of these courts, still con- ascertained number of justitiarii who tinued for a time to follow the person of used to be sent as commissioners to difthe king. By degrees, however, the old ferent parts of the country to perform king's court changed into the Court of judicial and other duties as occasion reKing's Bench, which in its origin was the quired. They were called from this cirsupreme criminal court of the realm, and cumstance "justices in eyre" (in itinere), had also jurisdiction over many matters and, according to the terms of their comconnected with the royal prerogative, mission, they tried either particular cases which in our days would not be regarded or all civil or all criminal cases (both or as forming part of the criminal law. As either) in a given area. In many intime went on it acquired or usurped civil stances, and for a considerable length of as well as criminal jurisdiction, but from time, they investigated and superintended the very earliest times down to the year the whole internal administration of the 1875 its position as the great criminal country, and more particularly everything court of the realm remained unaltered. which affected either proximately or reIn that year all the superior courts of law motely any one of the infinitely varied were fused into the High Court of Justice, rights of the king, especially those which which may thus be said to be a return, affected his revenue. after an interval of about six centuries, to the Curia Regis. By degrees, however, these fiscal and miscellaneous duties came to be perThough it is the supreme criminal court formed by other means, and the duties of of the realm, the High Court of Justice the justices of assize were confined to the rarely tries criminal cases in the Queen's local administration of civil and criminal Bench Division. It does so only when justice. For this purpose the whole of the matter to be decided seems likely to England was in the time of Henry the raise questions which possess some spe- Second, twelfth century, divided into six cial interest, legal, political, or personal. circuits, which have existed with singuLittle indeed is to be gained by such a larly little variation down to our own time. trial, as such cases would otherwise be The Central Criminal Court which sits tried before the same judges and in pre- every month for London and the neighcisely the same way in other courts.borhood was established in the year 1834. There are, however, some incidents pecul- Before that time, for many centuries, the iar to a trial before the Queen's Bench lord mayor and aldermen and the reDivision, one of which is that, if the corder of the city of London had by charge is one of misdemeanor, an applica- charter the right of being upon all comtion for a new trial on the part of the missions of oyer and terminer and gaol defendant will be entertained. There is delivery for the city of London and the no court of appeal properly so called in county of Middlesex. criminal cases in this country; but infor- Criminal cases of minor importance are malities in the procedure may give occa- tried by the courts of quarter sessions, sion to a writ of error which may be taken | held four times a year (whence their name) up to the House of Lords, and questions of law arising on any trial may be brought before the Court for Crown Cases Reserved. by the justices of the peace of every county, and of such of the larger towns corporate as have, by their charters, courts of quarter sessions. These courts The great bulk of the more important were first established in the fourteenth criminal business of the country is done century in the reign of Edward the Third. before the assize courts, the technical de- For some centuries they could and did scription of which is Courts of Commis- try all offences except high treason; and sioners of Oyer and Terminer and Gen- down to the end of the sixteenth century, eral Gaol Delivery, or the Central Crimi- | if not down to the civil wars in the middle nal Court. The assize courts are of the of the seventeenth century, they used con The impeachment of Warren Hastings lasted for more than seven years, though the number of days during which the court sat was not so great as the number of days in which the Court of Queen's Bench sat in the trial of the impostor Orton for perjury in 1873-4. tinually to pass sentence of death. In a single year in the reign of Queen Elizabeth no less than thirty-nine persons were hanged under the sentences of the Devonshire court of quarter sessions. After this, their powers were by degrees diminished in practice though not in theory, and throughout the eighteenth and during the The House of Lords has also a personearly part of the nineteenth centuries al jurisdiction in all cases of treason and (when nearly all crimes were nominally felony over peers of the realm. If a peer capital) the courts of quarter sessions were is accused of committing felony, the propractically restricted to the trial of cases cedure against him up to the time when of trifling importance. When capital pun- the indictment is found is the same as in ishments were abolished in nearly every the case of any other subject. When he case except high treason and murder, the is indicted, the indictment is sent, if Parjurisdiction of these courts was consider- liament is sitting, before the House of ably extended, and they can now try all Lords; if Parliament is not sitting, beoffences except those for which the crimi- | fore a court composed of a certain numnal can on a first conviction be sentenced ber of peers presided over by the lord to death or penal servitude for life, and some other specified offences (such, for instance, as libels) in which legal or constitutional questions of importance are likely to be involved. The justices of the peace for the county are the judges of these courts, the chairman being only primus inter pares, and having no special authority. Two justices at least must be present to make a court. In boroughs, the recorder who is appointed by the crown is the judge. He is paid a salary by the corporation out of the property or rates of the town. These are the ordinary English criminal courts. Besides them, there are others which are called into activity only on rare occasions. The House of Lords is a court of criminal jurisdiction, to which the House of Commons is the grand jury. The House of Commons can impeach any high steward, who is appointed for the purpose, whence the court is called the Court of the Lord High Steward. These courts are rather antiquarian curiosities than anything else. Since the accession of George the Third in 1760, there have been only three trials before the House of Lords sitting in this capacity; namely, the trial of Lord Byron (the poet's grand-uncle) in 1765, for killing Mr. Chaworth in an irregular duel; the trial of the Duchess of Kingston for bigamy in 1776; and the trial of Lord Cardigan in 1841 for wounding Mr. Tuckett in a duel. These are all the courts ordinary and extraordinary which at present exercise criminal jurisdiction of any importance in England, but great historical and legal interest attaches to the criminal jurisdiction of the Privy Council. The criminal peer of any crime whatever, and it can ac-law of England in early time's was vague cuse any commoner of any misdemeanor and meagre, and the system by which it before the House of Lords. Impeachments are now extremely rare. Two instances only have occurred within the last century; namely, the impeachment in 1785 of Warren Hastings, and the impeachment in 1806 of Lord Melville. The control exercised by Parliament over public servants of all ranks is now so complete and efficient, that it would be difficult for any one to commit the sort of crimes for which people were formerly impeached. The proceeding at best is a very clumsy one. was administered (trial by jury) was open to every sort of corrupt influence. Indeed, the local power of the aristocracy during the fourteenth and fifteenth centuries was so great that trial by jury was in many cases a farce. There are many curious proofs of this in the Parliament rolls and elsewhere. Under these circumstances the lord chancellor exercised in civil cases, and the Privy Council in criminal cases, powers which Lord Bacon compared to the powers of the prætors interest to enter into detail upon the manner in which these operations are performed, and it would take more time and space than I can at present afford to relate their history, which is curious. I may, however, make one remark. and censors in ancient Rome. The inter- | procedure observed in them. The first vention of the lord chancellor in civil step in criminal procedure is to secure cases was accepted by the public, struck the appearance of the person accused; deep roots in English law, and intro- the next, to examine and prepare the eviduced by degrees the system of jurisprudence against him. It would be of little dence which we call "equity," and which has done much to correct the faults and to fill up the deficiencies of the common law. The Privy Council (sitting under the title of the Court of Star Chamber) tried to do the same with regard to the criminal law, and I have little doubt that Preliminary proceedings before a justice if it had exercised its powers discreetly of the peace are practically all but uniand fairly, it would have succeeded in versal in English prosecutions, but theodoing so. It rendered, in fact, consider-retically they are not necessary. Accordable services by punishing persons whose local influence enabled them to intimidate juries and to set the ordinary courts at defiance, and by punishing a variety of offences which for different reasons were not regarded as crimes by the common law. Perjury by a witness, for instance, was not a criminal offence till it was treated as such by the Star Chamber. ing to the theory of an English trial, the prisoner is accused not by the magistrate who commits him, but by the grand jury, and a prosecutor may still, if he chooses, prefer an accusation before a grand jury without giving notice to the accused person, and so as to prevent him from hav ing any knowledge of the nature of the case against him till he is brought into court to take his trial. This course is so oppressive and so objectionable on public grounds that it is seldom taken, but it is still legally possible. The fact that it exists can be understood only by reference to the history of the English modes of accusation and trial, which is shortly as follows: Whatever may have been its merits, however, there can be no doubt that under James the First and Charles the First the Court of Star Chamber became oppressive in the highest degree, attempting by cruel and arbitrary punishments to put down the expression of all opinions unwelcome to the then government. This brought about its abolition, which At present there is in England only was effected by one of the first acts of one mode of trying criminal cases of any the Long Parliament in the year 1640. importance, namely, that by jury. There After the Restoration the Court of King's are some few cases in which justices of Bench took upon itself some of the func- the peace sitting without a jury may sentions of the Star Chamber, and in partic-tence offenders to as much as six months' ular recognized and acted upon most of the additions which it had tacitly made to the original criminal law. A remnant of the criminal jurisdiction of the Privy Council survived the destruction of the Court of Star Chamber, and still exists. In all cases arising in India or the colonies, an appeal lies from all courts of justice civil or criminal to the queen, and such appeals are heard by the judicial committee of the Privy Council. Such appeals are hardly ever permitted in criminal cases; but sometimes a legal question of peculiar difficulty and novelty may arise which it is desirable to decide upon the highest authority, and in such cases the judicial committee of the Privy Council is the body before which it is heard. The committee is not, strictly speaking, a court. It is a body of advisers by whose opinion her Majesty is guided in the orders which she gives. Such are the English courts of criminal justice. I will now say something of the imprisonment and hard labor, and there are one or two cases in which they may imprison offenders for a year; but these are exceptional. Trial by jury is the survivor of several modes of trial which were in use at and for a considerable time after the Norman Conquest. Its history, though still obscure in detail, is now, as far as its main points go, well ascertained, and it is as follows: the early modes of trial depended on the early modes of accusation, which were two; namely, accusation by a private person, and accusation by public report. Accusations by private persons were, I am inclined to think, the commonest mode of prosecution in early times. Such ac cusations were called "appeals," a word which in this connection means simply accusation and not recourse from an inferior to a superior tribunal. The nature of an appeal was as follows. The injured person was bound to use every effort to have the criminal arrested of the persons within the county whom by raising the country, which was bound they suspected of any offence; these to pursue him "with hue and cry." If persons were arrested forthwith if they be could not be taken otherwise, his name were not already in custody, and were at was proclaimed, and he was called upon once sent to the ordeal (urtheil) whether to appear at five successive county courts, of fire or of water. The ordeal of fire and if he did not appear he was outlawed; consisted in handling red-hot iron of a the effect of which was in very early certain weight, or walking over red-hot times that he might be put to death in a ploughshares placed at different intervals. summary way, and afterwards that he was The ordeal of water-which, strange to taken to be convicted. In the mean time say, seems to have been more dreaded the complainant had to register his com- consisted in being thrown into the water, plaint before the coroner, who was in when sinking was the sign of innocence, ancient times something like a modern and swimming the sign of guilt. How justice of the peace. If the person ac- any one without fraud escaped the one cused appeared, various proceedings took ordeal or was condemned by the other it place, which ended at last, if the parties is difficult to understand. I have somecould not otherwise settle the matter, in times thought that the water ordeal may trial by combat, which, however, was not have been like the Japanese happy despermitted if the guilt of the accused per- patch. If the accused sank, he died son was considered to be so clearly proved honorably by drowning. If he swam, he as to be undeniable. Appeals had a long was either put to death or blinded and and curious history which I cannot now mutilated; but this is a mere guess. relate. They applied at first to many Many records still remain which end with offences, but were at last restricted to the ominous words eat ad juisam aquæ, cases of homicide, in which the heir of or purget se per ignem. If the accused the murdered person had a right, even person escaped from the ordeal, he was after the person accused had been acquit- nevertheless banished. It was obviously ted by a jury, to "appeal" or accuse him. considered that though it might have This strange procedure, though used but pleased God to work a miracle to save him seldom, nevertheless continued to exist from punishment, the bad report made of till the year 1819, when upon an appeal of him by the local authorities was quite murder the Court of King's Bench actu- enough to show that he was a dangerous ally awarded trial by combat, which was character who must leave the country. not carried out only because the accuser was no match physically for the accused, and refused to go on with his appeal as soon as the court held that the accused had a right, as it was called, "to wage his body." This case was the occasion of an act of Parliament by which appeals were abolished. Early in the thirteenth century ordeals fell into disuse, probably in consequence of their condemnation by the Lateran Council held in 1215. The result of this was that the report of the grand jury became equivalent to a conviction, or would have been so if means had not been found to avoid a result which even in that age was seen to be monstrous. The method adopted was apparently the introduction into criminal trials of a practice which had already been introduced in civil actions under the name of the grand assize.* This was the summoning of twelve persons from the place where the dispute arose, who were to swear to their knowledge of the matter. The persons so summoned were called an assize, and afterwards a jury, and elaborate precautions were taken for securing the attendance of persons acquainted with the subject. When twelve persons were found willing to swear one way or the other, their oath was decisive. Even before ordeals were abolished a person accused by a grand The word "assize" is used in a variety of senses As time went on, accusation by public in old English law. It means-1, a law; 2, a jury; 3, |