CRIMINAL LAW. By criminal, or penal, law is now under stood the law as to the definition, trial and punishment of crimes, i.e., of acts or omissions forbidden by law which affect injuriously public rights, or constitute a breach of duties due to the whole community. The sovereign is taken to be the person injured by the crime, as he represents the whole community, and prosecutions are in his name. Criminal law includes the rules as to the prevention, the investigation, prosecution and punishment of crime (q.v.). It lays down what constitutes a criminal offence, what proof is necessary to establish the fact of a criminal offence and the culpa bility of the offender, what excuse or justification for the act or omission can be legally admitted, what procedure should be fol lowed in a criminal court, what degrees and kinds of punishment should be imposed for the various offences which come up for trial. Finally, it regulates the constitution of the tribunals estab lished for the trial of offences according to the gravity of the infraction of law, and deals with the organization of the police and the proper management of prisons, and the maintenance of prison discipline. (See EVIDENCE ; PRISON ; POLICE.) Many acts or omissions, which are technically criminal and classified as offences and punished by fine or imprisonment, cannot be said to have a strictly criminal character, since they do not fall within the popular conception of crime. To this class belong such matters as stopping up a highway under claim of right, or failing to repair it, or allowing a chimney to emit black smoke in excessive quantities, or to catch fire from being unswept, or breach of building by-laws, or driving a motor car on a highway at a speed in excess of the legal limit. Such breaches of law are, under the French law, described as contraventions. In England most of them are described as misdemeanours or offences punishable on summary conviction, or less happily as "summary offences," and some writers speak of them as mala prohibits as distinguished from mala in se, i,e,, as not involving any breach of ordinary morality other than a breach of positive regulations. Continental jurists at times speak of crimes de droit commun (i.e., offences common to all systems of law as distinguished from offences which are crimes only by a particular municipal law). To this class of crimes de droit commun belong most of the offences included in extradi tion treaties.
Criminal and civil law overlap, and many acts or omissions are not only "wrongs" for which the person injured is entitled to re cover compensation for his own personal injury or damage, but also "offences" for which the offender may be prosecuted and punished in the interest of the State. In non-English European systems care is taken to prevent civil remedies from being extin guished by punishment : it is quite usual for the civil and criminal remedies to be pursued concurrently, the individual appearing as partie civile and receiving an award of compensation by the judg ment which determines the punishment to be inflicted for the of fence against the State. Under English common law civil and criminal remedies cannot be pursued in the same proceeding, or compensation awarded to the injured party in criminal proceed ings, and he is left to seek his remedy by action. But there are statutory exceptions, and among these are the restitution of stolen goods on conviction of the thief if the prosecution has been at the instance of the owner of the goods (Larceny Act, 1916, sec. 45), and the award of compensation to persons who have suffered injury to property by felony (Forfeiture Act, 1870).
As Sir Henry Maine says : "All civilized systems of law agree in drawing a distinction between offences against the State or com munity (crimes or crimina) and offences against the individual (wrongs, torts or delicta),I' But the process of historical develop ment by which this distinction has been ultimately established has given great occasion for study of early laws and institutions by eminent men, whose researches have disclosed the extremely gradual evolution of the modern notion of criminal law enforced by the State from the primitive conceptions and customs of bar barous or semi-civilized communities. Of the oldest codes or digests of customs which are available to the student it has been said the more archaic a code the fuller and minuter is its penal legislation : but this penal legislation is not true criminal law; it is the law, not of crimes, but of wrongs. The intervention of the community or tribe is in the first instance to persuade or compel the wronged person or his family or tribe to abandon private ven geance or a blood feud and to accept compensation for the wrong collectively or individually sustained; and in the tariffs of com pensation preserved in early laws the importance of the injured person was the measure of the compensation or vengeance which he was recognized to be entitled to exact, and the scales of punish ment or compensation are fixed from this point of view.
In the 14th century justices of the peace and quarter sessions were established to deal with offences not sufficiently important for the king's judges, and from that time the course of criminal justice in England has run substantially on the same lines, with the single and temporary interruption caused by the court of Star Chamber.
The terminology by Which crimes are described by reference to their comparative gravity varies considerably. In many Conti nental codes distinctions are drawn between crimes (Ger. Ver brechen; Norse vorbrydelser; Span. crimenes; Ital. reato), delicts (Ger. Vergeken; Ital. delitti; Span. delitos), and contra ventions (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 TREA SON ; FELONY ; MISDEMEANOUR, etc. Here it is enough to say that the distinction is a result of history, and that felonies were those crimes that formerly involved capital punishment, and until 18 7o forfeiture of the offender's property. Treason and most felonies and some misdemeanours would under foreign codes fall under the head of crime. Misdemeanour, roughly but not exactly, cor responds to the French delit, and summary offence to contra vention.
The full definition of every crime contains expressly or by im plication 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, of which Reg. v. Tolson (16 Cox. C.C. 629) is a good example, as in infants, or perversion of that faculty, as in lunatics. But ignorance of law does not excuse.
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 gen eral 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 other wise making him not liable. Children are conclusively presumed to be incapable of crime up to seven years of age; and from seven to 14 the presumption is against the capacity, but is not absolute.
Under the common law, insanity was an absolute answer to an accusation of crime. As to insanity the rule applicable is to be found in McNaghten's Case (io Cl. and F. zoo), decided in 1843, where it was laid down that to establish a defence on the ground of insanity it must be proved that at the time of committing the offence the accused was labouring under such a defect of reason as not to know the nature and quality of the act he was doing, or, if he did know it, he did not know that what he was doing was wrong. It is true that the rules in McNaghten's Case have been much criticized by writers, but they have been accepted and acted upon by the courts down to the present time. 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. Insanity produced by drunkenness would be a defence to crime, but that may be considered the limit to drunkenness as an excuse for crime, save when a specific intent is necessary to con stitute a crime. But the mere fact that the mind is so affected by drink that violent passions are not controlled affords no defence, and it was so held by the House of Lords, in 19 zo, reversing the Court of Criminal Appeal in Beard's Case (26 Cox. C.C. 5 73 ) where the accused, under the influence of drink, in the course of committing an act of rape suffocated his victim.
Physical compulsion or coercion is an excuse for crime, but not where the force is moral such as threats or duress. 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 this presumption was abolished by the Criminal Justice Act, 1925, and coercion made a matter of proof. Speaking generally, the attitude of English law towards criminal responsibil ity is to be found in the maxim actus non facit ream nisi mens sit rea. But to this there are certain well-defined exceptions. By a particular statute the necessity for intent or knowledge may be negatived, such as in the case of breaches of the licensing law and the law as to the adulteration of food. Again, as we have said, ignorance of the law is no excuse, so a bond fide belief that the accused has been divorced, where only a decree nisi has been pronounced, is no defence to a charge of bigamy (Rex v. Wheat, 26 Cox. C.C. 717).
Distinctions are also drawn between degrees of guilt or corn plicity.
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 frus trated 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 pun ishes 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 de scribed 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 pres ent, 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. (See CONSPIRACY.) 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 recom mendation 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 al teration. In the Indian penal code, for instance, conspiracy is limited to cases of treason (sec. 121 A), and when it goes beyond agreement in the case of other offences it is merely a form of abet ment or participation (sec. 107).
The criminal law of England is not codified, but is composed of a large number of enactments resting on a basis of common law. A very large part is reduced to writing in statutes. In 1861 various consolidation acts were passed dealing with larceny, malicious damage, forgery, coinage offences, and offences against the person. And of recent years, still further progress has been made in dealing with the law relating to particular subjects in one consolidating statute, examples of which are the Children Act, 1908, the Perjury Act, 1911, the Forgery Act, 1913, the Indictment Act, 1915, and the Larceny Act, 1916. 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) 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 ex plicit. So far as the legislature is concerned there is an absence of systematic arrangement. The definitions of many crimes are still to be sought in the common law and the decisions of the judges. 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 de clared by the judges not to fall within the definition of the par ticular crimes alleged, and the legislature has constantly had to fill up the lacunae in the law as interpreted by the judges.
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 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 "enquired 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.). But from time to time exceptions have been made by statute, and now by the Criminal Justice Act, 1925, a prisoner can be tried where he was apprehended, and there are wide powers under that statute to commit for trial to "convenient" assizes or sessions if the ac cused will suffer no hardship. 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, etc., 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 de sirable 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 Ger man courts to punish their subjects for crimes committed in foreign countries, and by reason of this power certain countries refuse to extradite their subjects who have committed crimes in other States.
The principle of the French law, though not expressly recog nized 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 Great Britain. In early days offences committed by Englishmen on the high seas were punished by the lord high admiral, and he en croached so much on the ordinary courts as to render it necessary to pass an act in Richard II.'s reign (15 Rich. 11. st. 2, C. 3) to restrain him.
In the time of Henry VIII. (1536, 28 Hen. VIII. c. 15) an act was passed stating that, as the admiral tried persons accord ing 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 per mitting the indictment to state that the offence was committed on board a ship on the high seas, to wit in the county of Middle sex. Further provision was made by the Admiralty Offences Act, 1844, and in 186 i each of the Criminal Law Consolidation Acts of that year provided that all offences in those statutes men tioned 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. (1543) to provide for the trial in England of treasons and murders com mitted on land outside England. This was largely due to the con stant presence in France of the king and many of his nobles and knights, and the aid of this statute was invoked in 1903 in the case of Lynch, tried for treason in South Africa, and in the case of Casement in 1917. By sec. 9 of the Offences against the Person Act, 1861, any murder or manslaughter committed on land out of Great Britain, whether within the king's dominions or with out, 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 other cases such as slave trade, bigamy, perjury committed with reference to pro ceedings in an English court, and offences against the Foreign Enlistment Act, 187o, and the Official Secrets Acts, 1911 and 192o. 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 committed in India, and oppres sions, crimes and offences 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 Gen. Picton at the beginning of the 19th century, and of Governor Eyre of Jamaica in 1865.
In England until early in the i9th 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 punish ment 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 elo quence of Sir Samuel Romilly produced no effect until after the re form of parliament in 1832, shortly after which statutes were passed abolishing the death sentence for all felonies where benefit of clergy existed. Subsequent statutes have abolished the death penalty save in the cases of murder, treason, piracy and offences against the Dockyards Protection Act, 1772. By the Children Act, 1908, the death sentence is not to be pronounced or recorded where the offender is under 16. The severity of capital sentences was greatly modified by the pardoning power of the Crown, which pardoned convicts under sentence of death on their consent ing to be transported to convict settlements in the colonies. (See