Martial Law

MARTIAL LAW.) The ecclesiastical courts, which were formerly very powerful in England, and punished persons for various offences, such as blasphemy (q.v.), perjury, swearing, and sexual offences, have now almost fallen into disuse. Their authority over Protestant dis senters 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 excom munication.

Procedure.

A system of procedure, with the judicial machin ery required to work it, may be created either by the direct legis lative 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.

Criminal prosecutions are ordinarily undertaken by the in dividuals 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 priv ileges as regards the reply to the prisoners' 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 (q.v.) (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 mur der, coining and serious crimes affecting the Government.

The procedure of the trial of persons accused of criminal offences in England may now be considered ; firstly, where such offence may be dealt with summarily by justices at petty sessions; and secondly where the nature of the offence requires a trial before a jury either at quarter sessions, assizes or the central criminal court.

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 stipen diary magistrate. This proceeding must not be confused with the preliminary enquiry before justices for an indictable offence which may be sent for trial before a jury (which will be dealt with later), 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 arrest without a warrant of the accused, or 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 sum mons directing the person charged to appear on a certain day to answer the complaint made by the prosecutor. The justices must hear the case in open court; the person charged can make his de fence 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. Imprisonment with or without hard labour can be inflicted as the provisions of the statute authorize, but aggregate sentences must not exceed 12 months. If the sentence is a fine, and the fine is not paid, the person convicted is liable to be imprisoned without hard labour for the term fixed by the justices, not exceeding a scale fixed by statute, the maximum of which is three months, but this has been exceeded by some acts of parliament.

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 fine or a term of imprisonment.

The principal statutes dealing with the jurisdiction of justices to dispose of cases summarily are the Summary Jurisdiction Acts, 1848 and 1879, the Criminal Justice Administration Act, 1914, and the Criminal Justice Act, 1925. Extended powers were given these tribunals of dealing with children and young per sons, save in the case of homicide, and by the last-mentioned statute the power of the justices to deal with adults in specific cases and under certain circumstances, always with the consent of the accused, was further enlarged.

In all cases of summary trial where peremptory imprisonment for more than three months can be inflicted, the accused has a right to trial by jury and must be informed of this right. And by statute there is a general right of appeal to quarter sessions from a conviction by or an order of a court of summary jurisdic tion where there has not been a plea of guilty, or even in the latter case against the sentence.

Trials at Quarter Sessions and Assizes.

We now come to consider the trial of the more serious indictable offences at quarter sessions or assizes, which cannot, or owing to their nature should not, be dealt with by justices at petty sessions. Where such an offence has been committed the accused is arrested, with or with out the warrant of a justice, according to the nature of the offence, or is summoned by a justice before him. On his appearance a pre liminary enquiry 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 rarely is, held in private; it is an enquiry and not a trial. The evidence of the witnesses given on oath, and any statement made by the ac cused is taken down by the clerk, and then 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 either at quarter sessions or assizes. Otherwise they discharge the accused.

At common law any person could prefer an indictment for an indictable offence to a grand jury, and so, even although justices declined to send an accused person for trial, the prosecutor might proceed further. But by the Vexatious Indictments Act, 1859, in the case of certain offences, which have been extended by subse quent legislation, no indictment is to be presented to a grand jury without the consent of a judge or law officer, or unless the accused has been committed or the prosecutor has been bound by recog nizance to prosecute. Justices are bound to take that recognizance even although they have declined to commit.

The Grand Jury.

Whether there has or has not been a pre liminary enquiry before a magistrate, no person can be tried for any of the graver crimes, treason or felony, except upon indict ment found by a grand jury of the county or place where the offence is said to have been committed or is by statute made cog nizable. In olden days, and even now in theory, the grand jury enquire 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 12, nor more than 23, 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 good ground for the trial of the accused, they find a "true bill," but if they think 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.

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 empanelled 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.

If a coroner's jury, on enquiring 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 Cor oners Acts, 1887 and 1926. But now by the later statute if crim inal proceedings are pending, "in the absence of reason to the contrary," the inquest is to stand adjourned until their conclusion.

Trial by Jury.

When an indictment (q.v.) is found by the grand jury (1 2 at least must concur) the person charged is brought before the court, the indictment is read to him, he is arraigned (see ARRAIGNMENT) and asked whether be 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 12 is formed from the panel or list of jurors who have been summoned by the sheriff to attend the court. He may peremptorily challenge jurors in cases of treason or felony and "for cause" also in misdemeanour. He is tried by these jurors in open court.

On the trial before the petty jury the procedure and the rules of evidence differ in few points from an ordinary civil case. The proceedings as already stated are accusatory. The prosecutor must begin to prove his case. Confessions (q.v.) and admissions alleged to have been made by the accused are regarded with sus picion and 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. The accused may not be interrogated by the judge or the prosecuting counsel unless he consents to be sworn as a witness. The accused may, if he choose, be defended by counsel, and if poor may get legal aid at the public expense if the court cer tify 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.

Appeal After Trial by Jury.

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 re served, 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 or criminal informa tion might appeal. This statute abolished writs of error and the old practice of the king's bench as to granting new trials. It allowed appeals on questions of law and fact and on mixed questions of law and fact, and also against sentences, and on the certificate of the attorney-general that a point of law of exceptional public impor tance is involved, a further appeal is permitted to the House of Lords. There is no provision for appeals against acquittals and no power to order a new trial. A court of criminal appeal was estab lished for Scotland in 1926. (See APPEAL.) Costs.-The expenses of prosecution for crime in England are dealt with in the following manner. In the case of summary offences justices under the Summary Jurisdiction Acts can order the defendant on conviction to pay to the prosecutor all costs that are just and reasonable, and where the information is dismissed can order the prosecutor to pay costs to the accused. At common law there was no jurisdiction to order costs, and the power to do so rests upon statute. The subject, so far as indictable, as opposed to summary offences are concerned, is governed by the costs in Criminal Cases Act, 1908, and by that statute (1) a court of assize, including the central criminal court, or a court of quarter sessions before which any indictable offence is tried; (2) a court of sum mary jurisdiction dealing summarily with an indictable offence; and (3) justices examining but not trying an indictable offence may direct the payment of the costs of the prosecution or defence out of the funds of the county or county borough as in the act pro vided. There is power under the same act for the court to order the costs of the prosecution to be paid by the accused if con victed, and in certain cases a private prosecutor may be ordered to pay the costs of the defence. In the case of an appeal to the court of criminal appeal under the act of 1907, no costs are allowed on either side, but the expenses of assigned counsel or solicitor and of witnesses are to be defrayed out of local funds.

Characteristics of English Criminal Law.

The charac teristics of English criminal law and procedure which most dis tinguish it from the procedure of other countries are as follows: I. It is litigious or accusatory and not inquisitorial. It is for the prosecutor to prove by legal evidence the commission of the alleged offence, and the accused is not required to prove his inno cence.

2. According to the law of England there is no prescription in criminal law (with a few exceptions created by statute). Tempus non occurrit regi. 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 20 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 deait the limit is three years, and two years for a contravention.

3. A criminal prosecution directed on European criminal pro cedure at once passes into the hands of the State as an infringe ment of law which must be repressed, on the ground that the whole community bases its security on obedience to law. It is true that in England prosecutions are carried on in the name of the Crown, but only in serious matters do the attorney-general, the director of public prosecutions, or the police act, and much of the repression of minor crime is left to the injured party.

4. In England every criminal trial from beginning to end is public. Preliminary enquiries 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 crim inal charge are secret, and there are limitations to the rights of the legal advisers of the accused. At the trial the powers of counsel are much wider. In England also it is an established law that an accused person should have the right of publicity of the proceed ings and the right to defend himself by counsel and by witnesses at all stages of the proceedings.

5. In England the single-judge system is universal, save in courts of summary jurisdiction, at quarter sessions for counties and on appeal; on the Continent of Europe plurality of judges is insisted upon, save in the most trivial cases, where the punish ment is insignificant.

6. In England the accused has a right to be tried by a jury for all serious crime, and all professional judges are chosen from the bar, and do not form a particular caste, and are only removable for misbehaviour.

Northern Ireland and Scotland.

The criminal law of Northern 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 Scotland not many crimes are constituted by statute law, the common law having great elasticity. Criminal procedure in Scot land is regulated by an act of 1887 which greatly simplified indict ments 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.

The criminal law of England forms the basis of the criminal law of 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 Ottoman 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. 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.

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 instruc tions 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 touch ing the same. The commission was renewed in 1836 and 1 83 7, 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 be tween 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 larceny, for gery, malicious injuries to property, coinage offences and offences against the person. During the present century the law relating to perjury, forgery, indictments and larceny has been consolidated in several statutes.

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. Between 1834 and 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 Mohammedan 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 objec tions from missionaries, etc., its passing was delayed until Oct. 6, 186o. A draft scheme of criminal procedure was prepared in India in 1847-48, which, after submission to a commission in England, 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 on various occa sions and in 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, re ligion and caste governs. Under the codes, one set of courts has been established throughout the country, composed of well-paid, well-educated judges, many of the high judicial appointments be ing 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.

Passing on to the system of criminal procedure which is set forth in detail in the Code of Criminal Procedure as re-enacted 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 enquiries by the police; (2) the issue of sum mons 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.

Foreign Codes.

It has already been stated that most Euro pean States had codified their criminal law. The earliest of Con tinental 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 (Em peror Joseph's Code) . A new code was framed in i 803, 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 i 880. The Bavarian Code of 1768 of Maximil ian, 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 (I 8 i o) and the Code d'Instruc tion Criminelle (I8o8)—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 (188o) closely follow the French model. In Spain the Penal Code dates from 187o, 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 I 89o, but a new penal code under the Fascist regime is now (1928) under consideration. The Swedish Code dates from 1864. The Norwegian Code was passed in May 1902, and came into force in 19o5. Japan has a code based on a study of European and American models.

In the United States no Federal criminal code is possible; but many States have digested their criminal law and procedure more or less effectually into penal codes.

It may be generally stated that the English criminal law and procedure forms the basis of that which obtains in English speaking countries, while the French Codes of Napoleon are the models of Continental criminal law. (W. DE B. H.; X.) In one sense there is no single body of criminal law of the United States. For purposes of the administration of criminal justice each of the 48 States, and the Federal Government, is a sovereign State with its own law, its own exclusive jurisdiction, its own judges and other officers of justice, its own system of penalties and its own rules of procedure, subject only, in the case of the States, to certain restrictions of the Federal Constitution. Yet, in another sense, there is a criminal law of the United States.

When the American Colonies were first settled by the English, it was held by the settlers and by the judges and lawyers of England, that they brought with them so much of the common law of England and the statutes then in force there as was applicable to their local situation and change of circumstances. But each Colony judged for itself what parts of this common law were applicable to its new condition, and adopted some parts and rejected others. The common law here spoken of is that great body of principles evolved by the English judges during she centuries.

Therefore, while each of the several States of the United States has its own distinct body of criminal law, these bodies of law have a common source, viz., the common law of England, and this common law furnishes a great body of principles which forms the basis of the law of each of the several States and of the Federal Government. - Thus, subject to exceptions mentioned hereafter, every act that was a crime by the common law of England at the time the English emigrated to America is a crime to-day in the several States. There are three exceptions to this statement. (I) Under the rule that the English brought with them to America only so much of the common law as was suited to their changed conditions, offences cognizable only in the ecclesiastical courts in England, such as incontinence, were generally held not punishable in America unless made so by statute. (2) In a few States the legislatures have undertaken to codify the criminal law, and the courts of these States have held that in so doing the legislatures intended to include in the code all acts that were thereafter to be punishable, and that no act not animadverted upon in the code should henceforth be a crime in that State. (3) The Federal courts hold that there are no common law crimes against the Federal Government ; that only such acts as have been declared criminal by Congress can be punished by the Federal courts.

Not only were some common law crimes rejected in the United States, but many of the common law punishments in vogue in England at the time of the settlement of the Colonies were not accepted there. In an early Pennsylvania case the court said:— "The common law punishment of ducking (which was the punish ment for the offence of being a common scold in England) was not received nor embodied by usage, so as to become a part of the common law of Pennsylvania. It was rejected, as not accommo dated to the circumstances of the country, and against the notions of punishment entertained by this primitive and humane com munity; and although they adopted the common law doctrine as to inferior offences, yet they did not follow their punishments. . . . A gross libel in England was sometimes punished by the pillory. I believe Mr. Prynne lost both his ears. Though the offence is the same here, yet the sentence is very different." On this basis of the common law of England, each of the States and the Federal Government have separately, through the medium of legislation, built their individual bodies of criminal law. The criminal law legislation has been exercised mainly in the direction of the creation of new crimes, the changing of the penalties of the old ones, the organization of courts and changes in procedure.

Classification of Crimes.

Offences are usually classified in the United States in respect to their effect, as offences (I) against the law of nations, (2) against public justice and authority, (3) against the public peace, (4) against trade, (5) against public decency, (6) against the person, (7) against property. The United States has inherited from England the classification of crimes, in respect to their gravity, into treason, felony and misdemeanour. In England many crimes were placed in the category of treason. In the United States this term has been restricted to one offence; viz., the levying of war against the State or adhering to its enemies. Felonies, at common law, included all crimes punishable by death and forfeiture of property, but since forfeiture of property for crime was abolished early in the United States and the death penalty was restricted to a few crimes, this term has lost its original signification and now, generally speaking, characterizes all the more serious crimes. Furthermore, this category has been affected by statutes, so that what is a felony in one State may be only a misdemeanour in another. In some States a general rule has been adopted defining felony, as in New York, where all offences punishable by imprisonment for one year are declared felonies; while in other States, as in Pennsylvania, the legislature, in defining each crime, prescribes whether it shall be a felony or a misdemeanour. The term misdemeanour includes all offences punishable by the State which are not treason or felony.

Elements of Crime.

The elements of a crime, under the laws of the Federal Government and of the States, are the same as in other systems of law. The rule is expressed in the maxim—every crime consists of an act, or an omission to act, and an accompany ing state of mind. The act must be a willed act, and the omission must be the omission of a legal, as distinguished from a moral, duty. A blow caused by a mere muscular reflex will not make one criminally liable nor will an omission by a stranger to rescue a drowning person, though such rescue could be effected by a mini mum of effort. Except in a small but growing class of statutory offences of a minor character, there must exist, together with the act or omission, an accompanying state of mind, to render the person causing injury criminally liable. This state of mind varies in the case of different offences and is either malice, negligence, knowledge of certain facts or some particular intent. Thus murder consists of an act causing death to a human being, accompanied by malice; voluntary manslaughter consists of the same act with intent to kill, but without malice; while in involuntary man slaughter we have the same act done with a merely negligent mind. Most of the serious offences require, in addition to an act, a cer tain specific intent. Thus in burglary there must be the act of breaking and entering a dwelling house in the night time, with an intent to commit some felony therein; in larceny there must be coupled with the act of taking an intent to deprive the owner per manently of the property taken; in robbery there must be the forcible taking of property, with the intent required in larceny. In addition to these common law crimes there is a long catalogue of statutory offences requiring a specific intent for their com mission; such are assaults, with intent to kill, to maim, to wound, etc.

Elements of Criminal Responsibility.

To be responsible, criminally, for his acts, the person charged must be of competent age and sane. In the United States, as in England, a child under seven years of age is not criminally liable for any act, and between the ages of seven and 14 he is presumed not to have such knowl edge and discretion as to make him liable. The burden of proving such knowledge or discretion is on the prosecution. While in the law both of England and the United States an insane person is not responsible for his acts, the legal test of the kind and degree of that insanity which excuses him is not the same. Indeed, it is not the same in all the States of the Union. In England, the test, adopted in 1843, in McNaghten's Case, in accordance with the medical theories of the day, was what has become known as the "right and wrong" test, viz., did the accused know the nature and quality of the act he did, or, if he did know it, did he know that he was doing wrong. This test has been adopted in many of the States, and under it it is held in these States that a person is not excused who kills another under an insane irresistible impulse, or homicidal mania. A growing number of States, however, in fluenced by modern psychiatry, have repudiated the "right and wrong" test and hold that even if the accused knew the nature and quality of his act and knew that it was wrong, yet if he was driven to do the act by an insane, irresistible impulse, he is not re sponsible. A third group of States hold that there is no legal test of insanity; that insanity is a question of fact, not of law, and if the defendant had a mental disease, and the act done by him was a product of that disease, he should not be convicted. If insanity exists in such a degree as to excuse, the origin, or cause, of such insanity is immaterial; thus insanity brought on by indulgence in liquor, if it be real insanity—a disease of the mind—and not merely a temporary irrationality due to intoxication, is as effective to render one non-liable for acts due to such insanity as though the insanity were congenital. Insanity plays another role in the criminal law in that though the accused was sane at the time he committed an offence, he cannot be put on trial if he is insane when his case comes on to be tried, as in such event he cannot intelligently present his defence; nor can he be punished if he is insane at the time of the sentence.

Drunkenness, not involving insanity, is a valid excuse in the case of all crimes requiring a specific intent for their commission, if the drunkenness is so great as to negative the fact that the accused had, at the time he did the act, the accompanying intent necessary to constitute the particular crime with which he is charged. Thus a person cannot be convicted of larceny, if at the time he took the property he was too drunk to entertain the intent to steal ; nor can he be convicted of arson if he was too drunk to have the intent to burn. Ignorance or mistake of law or of fact affords a valid excuse for a crime if such crime requires a specific intent or knowledge, and the ignorance or mistake negatives the existence of the requisite intent or knowledge. Thus if a person mistakenly thinking that a piece of property belongs to him, carries it away, he is not guilty of larceny, since his mistake negatives the intent to deprive the owner of the property, which intent is necessary to larceny; or if a person votes, believing erroneously that he has the right to vote under existing law, he cannot be convicted under a statute providing penalties for "know ingly" voting illegally.

Since the theory of the criminal law is that a crime is an offence against the State rather than against the individual, the consent of the person injured affords no defence except in crimes such as rape, larceny, etc., that require the non-consent of such person by their very definition. Thus on an indictment for murder it is no defence to show that the person killed consented to his death or asked the accused to kill him. For the same reason, contributory negligence, or guilt, or condonation, of the person injured, is no defence in criminal law. Physical compulsion or coercion is a valid excuse for what would otherwise be a crime because in such case the act done is not the act of the person seeming to act but of the person compelling. Moral compulsion, such as threats, has been held in the United States to excuse some crimes and not to excuse others. Thus where an American enlisted in the enemy army it was held he was not guilty of treason if he enlisted through fear of immediate death (Respub. v. McCarty, 2 Dallas, 86). On the other hand, one is never excused for killing an innocent person even to save oneself from immediate death at the hands of a third person (Brewer v. State, 72 Ark. 145). The fact that one was in duced or commanded to commit a crime affords no excuse. There are two partial exceptions to this rule. A wife is excused for the commission of any but one of the more serious crimes if she is coerced by her husband and the crime is committed while he is present ; and a person in the military or naval service is excused for illegal acts done by command of his superior officer, unless the order was so clearly illegal that a person of ordinary intelli gence would recognize its illegality on its being given. In addition to the above-mentioned excuses, there are certain justifications for acts which, without such justification, would be criminal. In this category are the arrest, detention and, in the case of serious crimes, even the killing, of a person who has committed or is about to commit a serious felony, if there is no other means of arresting him or of preventing the felony. A parent, or one stand ing in loco parentis, may likewise justify a battery on the person in his charge if the battery is for purposes of correction and is not excessive. The well-known doctrine of self-defence likewise comes within the category of justifiable acts. Also, what one may do in self-defence, another may do in defence of him. A person may also protect his dwelling or his property by force, short of killing or serious bodily harm.

Combinations of Persons in Crime.

A person may be con cerned in a crime either as a principal in the first degree, a prin cipal in the second degree, an accessory before the fact or an accessory after the fact. The principal in the first degree is one who commits the crime with his own hand or acting through a legally irresponsible agent—such as a child under seven years of age, an animal or a mechanism. A principal in the second degree is one who is present, aiding or abetting the principal in the first degree. An accessory before the fact is one who induces the prin cipal in the first degree to commit the crime but is not present when it is committed. An accessory after the fact is one who, knowing that another has committed a felony, shelters him or aids him to escape. These degrees of participation in crime hold only in the case of felonies. In treason and misdemeanours all persons concerned are principals.

In the United States, as in England, attempts falling short of the commission of the crime intended are themselves regarded as crimes unless the crime intended is of a very minor character. In this class of crime, as in others, there must be a concurrence of act and intent. A distinction is made between preparation to com mit the offence and attempt to commit it. If the act done toward the commission of the crime has not gone beyond mere prepara tion to commit it, the technical "act" has not been done and no offence has taken place. Thus buying a pistol for the purpose of killing a person is not an attempt to kill—it is only "preparation"; but if the actor has proceeded so far as to point the pistol at his victim the attempt is complete though his attempt should be frustrated or he should at this point voluntarily relinquish his design. Many fine-spun distinctions have been made both in England and in the United States as to whether one could be con victed of an attempt to do something, the doing of which was at the time impossible—as an attempt to pick an empty pocket. There is authority in England to the effect that this is not a punishable attempt. The authority in the United States is gen erally to the contrary. There is general agreement, however, on the proposition that one cannot be guilty of an attempt to do a thing which is legally, as distinguished from factually, impossible. Thus a person could not be guilty of an attempt to steal goods, even though he proceeded far enough in his attempt to pass be yond preparation, if it happened that, unknown to him at the time, the goods were his own goods.

Punishment.

The punishments inflicted in the United States for crime are: (I) Death. In some States the death penalty is inflicted by hanging, in others by electrocution and in one by Iethal gas. In several States the death penalty has been abolished. Death is the usual penalty for treason and for murder in the first degree—generally a wilful, deliberate and premeditated murder, or a killing done in the commission of or attempt to commit one of the more serious felonies. In the Southern States rape is also generally punished by death. (2) Imprisonment in the State peni tentiary. The more serious offences not punished by death are thus punished. (3) Pecuniary fines, varying in amount with the gravity of the offence. (4) Whipping, as a penalty for certain offences, is still practised in Delaware. (5) Imprisonment in the county gaol. The less serious crimes are punished in this manner. In many States, second and subsequent offenders are punished more severely than first offenders. New York has gone furthest in this direction, punishing by life imprisonment one who is for the fourth time convicted of any felony.

In general, in the United States, the maximum punishment for each offence is fixed by statute, the trial judge being given dis cretion to mete out any given penalty less than the maximum. In some States the jury may, in convicting the accused, recommend him to mercy, and in others the jury itself, instead of the judge, fixes the penalty in each case. There are provisions also in many States for the probation and parole of prisoners, especially in the case of first offenders. "Cruel and unusual" punishments are for bidden by the Federal Constitution.

Jurisdiction and Venue.

Jurisdiction as here used means the power of the State to punish offences; venue means the local sub-division of the State in which an offence must be tried. With out a special statute authorizing it, a State can punish only those offences which are committed within its boundaries, and, perhaps, crimes affecting its well-being by its own citizens elsewhere. By statute, however, a State can punish anyone who does an act anywhere against its sovereignty or security. Statutes so provid ing have been enacted by the U.S. Congress. Also the peace officers of a State have no authority beyond its territory and hence cannot apprehend one who has committed a crime within the State and taken refuge in another State. The only recourse in such a case is for the governor of the offended State to request the governor of the State to which the criminal has fled to pro cure his arrest and return. Whether the request will be efficacious depends entirely on the good pleasure of the second governor, though in practice the request is seldom refused. By special agree ment between some of the States, concurrent jurisdiction has been given these States over crimes committed on rivers separat ing them. Much difficulty is experienced in the administration of the criminal law in the United States, not only by the fleeing of criminals from one State to another, but also by fugitive wit - nesses whose testimony is needed at the trial. To obviate this difficulty, agreements have been made by a few States under which the State to which a witness has fled will return the witness to the State needing his testimony. The common law principle that an offence must he prosecuted in the county in which it was committed obtains generally in the United States. Several States, however, have enacted statutes allowing prosecution in another county; e.g., in the cases of a wounding in one county resulting in death in another, of offences committed near the county line of adjoining counties and of offences committed on moving trains.

By the Federal Constitution and by most State Constitutions, all persons are protected from being prosecuted more than once for the same offence. In the Constitutions of a few States this protection is confined to capital cases. These provisions do not prevent the Federal Government from prosecuting a person for an act for which he has already been prosecuted by a State, if the act is an offence against both the State and the Federal Govern ment, and the same principle applies to a prosecution by a State after a prosecution by the Federal Government.

All but a few States provide in their Constitutions that, before conviction, every person accused of crime shall have the right to be released from custody on bail, except in capital cases. In a few States this right is not guaranteed in the case of murder, whether murder be a capital offence or not; and in a few States treason is also excepted.

Though known by varying names, there are in general in the United States three classes of courts having jurisdiction in criminal cases in each State: (I) Courts having cognizance of petty offences. These are generally known as magistrate's courts or courts of the justice of the peace. (2) Courts having juris diction of indictable offences—variously named. (3) In some of the larger cities there are also courts having cognizance of juvenile offenders. (4) Courts of appeal. In only two States are there courts of appeal for criminal cases alone. In the other States the same court hears appeals in both civil and criminal cases.

Procedure.

In the United States the prosecution of the criminal is not left, as generally in England, to the initiative of the individual who has suffered by the crime, but is conducted by an officer of the State whose sole public duty is the enforcement of public justice. He is known by various titles, such as States attorney, prosecuting attorney, district attorney, solicitor, etc., of whom there is usually one for each county or district in the State. Important cases are sometimes conducted by the attorney-general. The summary prosecution of cases both before a magistrate or justice of the peace and before a court having jurisdiction of in dictable offences in the United States is so similar to the prosecu tion before the justice of the peace in England as not to require a separate description. In the United States generally, only one magistrate hears the case, though in many States he may call in a magistrate of another county to sit with him if he so desire. It is believed that no legislation similar to the Vexatious Indict ments Act of England exists in the United States and that, there fore, an indictment may be considered by the grand jury in all cases of indictable offences whether or not the magistrate has de clined to hold an accused person to trial. The finding of a "true bill" by a grand jury as a prerequisite to putting a person on trial for all but petty offences was a part of the common law inherited by the United States from England, and still obtains in half of them. In 24 States, however, the prosecution may be begun, without the intervention of a grand jury, by the filing of an "information," i.e., accusation, by the prosecuting attorney, ex cept, in a few States, in cases punishable by death or imprison ment for more than ten years. It is still lawful to proceed by indictment by a grand jury in these States, but in practice prosecu tion by information has superseded that by indictment as simpler, less expensive and more expeditious.

Trial by Jury.

When an indictment has been presented, or an information filed, against a person, he is arrested, if he is not already in custody or released on bail, and is brought before the court. On appearing, he is arraigned (see ARRAIGNMENT). The indictment is read to him, even though in some States he has been given a copy of the indictment a prescribed time previously. He is then required to plead by being asked whether he is guilty or not. In answer to this he may plead any one of the following pleas: (i) guilty ; (2) not guilty; (3) former jeopardy; (4) for mer acquittal; (5) former conviction; (6) nolo contendere which is, for practical purposes, equivalent to a plea of guilty; (7) to the jurisdiction; i.e., that the court has no jurisdiction of the case; (8) in abatement—as that he has been erroneously named in the indictment ; (q) he may demur to the indictment; (so) in some States the accused must enter a special plea of insanity if he desires to defend on this ground; in others this de fence may be given under the plea of "not guilty." If the accused pleads guilty, no trial is necessary in most States, but the judge proceeds to sentence. In a few States, however, the judge, or jury, is required to hear the witnesses as to any facts that may aggravate or mitigate the offence. If the accused refuses to enter any plea, a plea of "not guilty" is entered for him by the court. If the defendant pleads "not guilty," or stands mute, a jury is selected to try the case. In most States this jury is composed of 12 persons, and the accused cannot be convicted unless all the jurors unite in finding him guilty. In some States a trial may be had by a smaller number of jurors, and in some a unanimous verdict is not required in the case of all crimes. The burden of proving the accused guilty is on the prosecution and the prisoner is entitled to acquittal unless the jury is satisfied, beyond a reasonable doubt, of his guilt. The accused is entitled to be repre sented by counsel, and if he is unable to procure counsel, it must be assigned to him, in some States in all cases of felony, in others in cases of trials for homicide. He is entitled, as is the State, to have process to compel witnesses to attend and testify. When the evidence has all been heard, counsel for the State and for the prisoner address the jury, and the judge instructs the jury as to the law of the case. In the Federal courts and in the courts of a few States, the judge may comment on the evidence of the case in order to assist the jury in reaching a just verdict, but in most States the judge is forbidden by law to comment on the facts.

In all States the accused, on conviction, may petition the court which tried him for a new trial of the case, which will be granted if the court is persuaded that his conviction was not in accordance with the law. In addition to this, the accused has the right to have his case reviewed by a higher court—in a few States, as to matters of law only; in most States, as to both the law and the facts. The appellate court in its review is confined to the record and cannot examine witnesses, nor can it modify or increase the sentence. It can only affirm the legality of the original trial or send the case back for a new trial. (W. E. M1.)