Neither the ancient laws, decreed on the sole authority of the kings, nor the earlier acts of Parliament yield much to those who go to them in search of definitions of crimes. Their administrative and regulative provisions assume a knowledge on the part of the law officers of what characterizes a criminal offense and dis tinguishes it from a trespass. The forms of procedure devised by the courts, however, are more helpful to a historical study of the de velopment of the criminal law. From a number of forms of appeals given by Bracton in his Anglin,' it appears that in his day the idea of a crime being an infraction of public order as well as an invasion of private rights had been definitely accepted. The appellor was required to allege that at the time of the injury suffered, whether abiding at home or traveling on the king's highway, he was °in the peace of the lord lung?' that the defendant °came with his force against the peace?' in felony and in °premeditated assault. Violence, felonious ness, malice and premeditation have in all times been considered necessary constituents of any serious criminal act. Returning to Bracton we find that, if the injury inflicted was a wound, the appellor must describe it with exactitude and state upon what part of his body it was received; also the kind of weapon with which it was inflicted. It seems that only with weapons that cut and pierced could an assault be made that would be accounted felonious. If one were injured from a blow with a bludgeon or the bare fist, such as would ordinarily cause merely a bruise or a welt, unless bones were broken, it was regarded a °nrinor and lighter" offense, answerable in a civil action though even such lesser wrongs would °appertain to the crown, for sometimes they are against the peace." An appeal for mayhem would lie only injuries for injues that would disable the appellor only fighting?) Certain crimes, as homicide and arson, were "inexpiable," subjecting the perpetrator to cap ital punishment, or to mutilation in the case of rape. Killings or fires resulting from acci dent or negligence, and not caused with malicious design, were not so punished. Bracton says °against such (offenders) a civil action lies.° Thus early (Bracton's book was written about 1258) did the law clearly recognize the distinction between "felonies* and amisdemean ors,° which has subsisted to this day. Thus early was °intent° estimated at its true value as an element of criminality. Not for the first time in English history, however, was such recognition then accorded to these principles. The Saxon laws directed a less compensation to be made for accidentally causing a death than where the killing was an act of volition; and in the laws of the Norman, Henry I, son of the Conqueror, there is a general provision that °one who does amiss unknowingly is free of guilt.° The common-law crimes against private proprietary rights were those involving destruction of property, as arson, and those depriving the owner of its possession, as theft. The former was a capital crime and the latter, the perpetrator being of the age of puberty, and the property taken being above a few shillings in value, was also punishable with death. The malicious burning of a domicile, strictly speaking, is an injury to the person of the owner, being regarded as an attack on his life. The commission of larceny in the night (burglary), or with accompanying violence to the person of the victim (robbery) were ag gravated forms of the offense, justifying the summary killing of the offender. Land, under the feudal system, being held in tenure of the king or lord, and not owned, was not susceptible to theft; anyhow, a thief could not conveniently carry away an earldom or even a farm. But this insusceptibility of real estate to appropria tion by larcenous taking was extended to the appurtenances thereof. So, while it would be a larceny to steal a sheep from the fold or an apple from the tree, these things being chat tels, one might carry away any part of a house, or even jack up and remove the entire structure, without committing a theft at common law. The principal crimes against the government mentioned in the early laws were: plotting against the king's life or the harboring of exiles who plot ; plotting against a lord, fighting in the Icing's house or breaking the king's peace in tumult and riot; also contempt and disobedience of lawful authority, especially by public officers, possibly the basis of the law of impeachment for malfeasance. Breach of the oath of fealty to the sovereign and making head against him with force of arms was treason and rebellion, severely punished when unsuccessful. Of crimes against public justice, perjury is several times mentioned, and of offenses against the police power "coining° is attended to at a very early date. Usury originally was an offense under the canon law of which the ecclesiastical courts took cognizance exclusively, until a compromise was made between the king* and the bishops and embodied in act of Parliament (15 Edward III, Chap. 5), the usurers dead belonging to the king and alive to the bishops. Usury was finally declared a thing unlawful (by 37 Henry VIII, Chap. 9), repealed in the time of Ed ward VI but revived in 1570 (by 13 Elizabeth, Chap. 8). The law of 25 Edward III St. 5, Chap. 1, is still the standard act on which law of treason is based. In fact, by the end of the reign of this monarch (1377), we find the criminal law of England practically complete, in outline, with respect to its substantive pro visions as well as with respect to the organiza tion of the courts and their procedure. The King's Bench had obtained a much more than supervisory jurisdiction over the County Court and when the king's judges came into a shire their jurisdiction in criminal cases was prac tically exclusive. The County Courts, no longer the Folkmoot, were composed of selected county magistrates. Twenty-three of these were told off to form a grand inquest, or jury, of which 12 would constitute a quorum, while the whole body would be the custodian of the rolls — custos rotulorum. Shakespeare shows his wis dom of the law when he permits Robert Shallow, Esq., in the county of Gloucester to call himself "justice of peace and coram, aye, and cust-alorum.° titles which the popular wit of a later age has further travestied and trans muted into "high cockalorum.° Criminal, prose cutions by private appeal continued in vogue, however, long after the institution of grand juries and pleas of the crown. In 1482 the judges of all the benches unanimously directed that one indicted for murder °shall not be prosecuted at the King's suit for a year and a day)); every indictment was to be stayed until the suitor had his opportunity to prosecute his appeal to trial by battle. This remarkable piece of judicial legislation was repealed by statute (3 Henry VII, Chap. 1) which provided that because "the party is often slow . . . and at the end of the year all is forgotten,° indictments for murder shall be tried at once, but acquittal was no bar to a private suitor's appeal. This form of action, however, fell out of use, though an appeal for murder was insti tuted as late as 1818. Nothing came of it, the appellor declining to fight, and in the following year (59 George III. Chap. 46) private prose cutions of criminal offenses 'were definitively abolished. When an accusation presented by the officers of the crown has been endorsed by the grand jury a "true bill° it becomes an indict ment. A majority of not less than 12 jurors is necessary to a finding, hence the practice of drawing 23 men to the grand jury, so that 12 may be the smallest possible majority. The indictment derived its preciseness of form from the appeal, on which it is modeled. Any vari ance between the statement made by the ap pellor to the coroner and that made to the judges was fatal. The same strictness of rule applies to the indictment. The requisites of an indictment at common law were: the venue, which was important as showing whether an action was brought in the proper jurisdiction; the statement, which sets out all the ingredients of the offense charged; the conclusion which was merely a form, of no importance whatso ever, and is now generally omitted. In other respects a modern indictment does not differ greatly from one of the earliest times. A his tory of the criminal law in England leads through a maze of refinements in special plead ing and of capricious and casual legislation. The many definitions of crimes, made at vari ous times within the five or more centuries past, naturally were not always consistent, while the subtleties and technicalities of the special pleaders were often ridiculous. Many of the rules of pleading were, in effect, legislative acts as Chief Justice Coke's specification of the three degrees of criminal intent that must be set forth in various forms, as of absolute certitude, reasonable assurance, and betwixt and between. Practically the same in effect as an act of Parliament, also, was Sir Matthew Hale's doctrine that with respect to theft, one who carries stolen property from place to place goes on stealing it in each place he takes it to, so that he may be indicted in every county to which he conveys it. The ancient theory of
trial by the vicinage was carried so far that, if a man received a fatal wound in one county and died in another, the slayer was indictable in neither. This defect was remedied by the statute of 2 & 3 Edward VI (Chap. 24, 1548) ; but many other and quite as serious abuses were permitted to continue. There was no limitation of time in which a criminal action could be instituted. Eugene Aram was con victed and executed 20 years after the murder of Clarke and Sir James Fitzjames Stephen, when a young barrister, held a brief as prose cutor where the offense charged was the ab straction of leaves from a parish register 60 years previously. An early instance of the ap plication of the °higher lawn is a case, cited by Hale in his "Pleas of the Crown,'° of a man indicted for a murder in 1672. The person killed was caught in the act of adultery with the slayer's wife, and it was resolved by the whole court that this was manslaughter. The accused had °benefit of clergy') and, though he was branded in the hand, the court directed the executioner to "burn him gently, because there could be no greater provocation than his?' Beginning with the 19th century in England and even earlier in America the rigors of the substantive law relating to crimes and penal ties and the intricacies of criminal procedure became the subjects of ameliorative action and simplifying regulation, by legislative enactment and, in less degree, by judicial rulings. But until quite recently the unwritten law covered: principles relating to extenuation and justifica tion of criminal acts; the definition of murder, manslaughter, assault, theft, including larceny by trustees and bailees, and by fraud; forgery; perjury and 'libel ; and the whole law of pro cedure. To some extent, this unwritten law has been reduced to statutory form, particularly since the middle of the last century, but systematic codification has been carried out in only a few places and hesitatingly. The Code' and (Code of Criminal Procedure,' prepared by David Dudley Field and others under commis sion from the New York legislature, lay neglected for a generation before they were adopted. These have since found acceptance in other States; and in still other States and also in the Federal Congress, more or less sys tematic revisions of the statutes relating to crimes and procedure have taken place. The 'Draft Criminal Code' prepared by Sir James Fitzjames Stephen in 1878 and introduced in the British Parliament the following year. after revision by a commission consisting of Lord Blackburn, Justice Barry, Lord Justice Lush and the author, has been gathering dust in committee ever since. In his draft the substan tive law and procedure are treated as an insep arable unit, because of the inter-relation of the two parts. The division of the whole body of criminal law into substantive and remedial law or procedure is natural, however, and in accord ance with the plan followed by all modern codi fiers and analytical writers from Beccarria and Bentham to the end of the alphabet. Thomas Erskine Holland would divide the substantive criminal law itself into two parts. The first and more general part should deal with (1) the nature of criminal acts; (2) responsi bility of the • wrong-doer on the ground of intention or negligence; (3) facts neg ativing responsibility, as non-age, compulsion, idiocy, lunacy or drunkenness; (4) facts in justification of acts otherwise criminal, as con sent of the injured party, self-defense, provo cation, lawful authority or the public welfare; (5) a list of punishments, hard labor, whipping, loss of civic rights, liability to police super vision or pecuniary fine; (6) the period of time which would bar prosecution; (7) aiding and abetting crime; (8) criminal attempts; cumu lative punishments. The distinction between felonies and misdemeanors, now become mean ingless, might be superseded by a distinction between indictable offenses and others. In the second and more special part should be con tained a classification of criminal acts and the penalties provided for each. Criminal acts are divided into offenses committed directly against the state or the community in general, and offenses the mischief of which is directed primarily against particular individuals. The state or community in general may be injured by (1) acts tending to interrupt its friendly relations with other powers, under which head would be included our Federal laws against °filibustering') and the like; (2) acts tending to subvert the government, as treason and rebel lion; (3) acts tending to the subversion of the liberties of the citizens; (4) riots and other offenses against public order; (5) abuses of official position; (6) resistance or disobedience to lawful authority; (7) obstruction to the course of justice by perjury or the falsification of documents, or by the rescue or harboring of defenders; (8) offenses relating to the coin age or to weights and measures; (9) acts injurious to public morality, as bigamy ar adultery; (10) acts injurious to the public health, such as non-compliance with ordinances to prevent the spread of epidemics or the main tenance of nuisances. The wrongful • acts primarily affecting individuals may be classified as follows: Violence to the person in various degrees of homicide, or by wounding, rape, assault or imprisonment; (2) defamation of character. libel, etc.; (3) offenses against family rights, such as the abduction of children; (4) offenses against possession and ownership, such as theft or embezzlement or the wilful destruction of property, as by arson; (5) forgery and breaches of contract of a kind likely to cause social inconvenience; (6) fraud ulent misrepresentation and swindling. The rules whereby the machinery of courts is set in motion for the punishment of offenders, and classified under the head of criminal procedure, usually are of two species. The more solemn proceedings for the trial of serious crimes have been described in the historic part of this article. A simpler form of proceeding is by summary process before a minor magistrate or even an administrative or police official. This method is applicable only to trifling transgres sions, unless the accused should consent to this manner of disposal in a matter of greater con sequence. Many of the offenses over which minor magistrates exercise summary jurisdic tion consist in the breach of statutory regula tions to prevent petty nuisances, or of ordi nances passed by municipalities or other public bodies, under legislative authority, or to enforce the execution of administrative measures of public importance. Among the latter are pro visions subjecting parents to fines for not sending their children to school, numerous punitive ordinances for violations of regulations of boards of health, of traffic rules made by the police, building regulations, etc. These make an increasingly important part of our legal system and are too characteristic of modern tendencies to be passed over even in a neces sarily brief survey of the penal law. They defy classification and a bare allusion to them, in order to round out this article, must suffice.
See CRIMINOLOGY; BURGLARY; BIGAMY; JURIS DICTION; HOMICIDE; COUNTERFEITING; PERJURY; LIBEL; RAPE; MALICIOUS MISCHIEF; TREASON; PENOLOGY.
Archbold, J. F.,