This branch of jurisprudence is the earliest in development, but the latest to be reduced to a rational and consistent system. The predominance of penal laws may be seen in the early legislation of every nation; for in a rude state of society personal violence is the most pressing subject for which laws are required. Laws are accordingly enacted for the emergency, and, as might be expected, having reference to the immediate occasion, they partake rather of blind popular impulse than the calm deliberation of legislative wisdom; not that the laws are in fact dictated by the will of the people, but the legislators themselves are under the influence of the same prejudices that actuate the popular mind. The consequence is, that excessive severity at first prevails, which in the course of time is meliorated by evasion of the laws, and the contrary extreme of undue laxity has in many instances succeeded. The latter effect can be guarded against only by a timely revision of the laws, and an accommodation of them to the more humane views resulting from an advance of civilization. But the practical wisdom required for such a revision is the very latest growth of civilization, and belongs to the highest branch of political science.
It has indeed been erroneously supposed that criminal law is extremely simple as compared with the laws relating to property. This idea has grown out of the fact that legislation respecting crimes has by necessity been called for when as yet the state of society was unsettled. Laws were made for individual cases, and by consequence were destitute of sound legal discrimination; yet by long use, and for want of the capacity required for systematic review and amendment, they have become fixed in all their incongruity. This irregular character ■of criminal laws is not peculiar to one or a few nations, but is observable in all systems of jurisprudence which have not in a later and more mature age undergone revision. Hence criminal law has more a statutory or positive character than the more gradually developed system of laws affecting property. In the absence of general principles and of all harmonizing method, each statute or provision of law is isolated, distinct, and positive, and therefore precludes all reasoning by analogy and all modification for the sake of conformity to the changing circumstances of society.
So far, then, criminal law may be said to be simple, inasmuch as each statute is the law of the particular case referred to, and there can be no expansion or reproduction by analogy. Yet there are principles applicable to this branch of the law which may, in like manner as the elementary rules of civil law, be developed into a harmonious system. Another peculiarity of criminal law, or rather of its administration at an early period, is the want of discrimination as to the palliative circumstances of crime. Motives are comparatively little considered in early penal laws, or in the judicial proceedings founded upon them. Gibbon's remark, that "the life or death of a citizen is determined with less caution and delay than the most ordinary question of covenant or inheritance," is true only of a jurisprudence which has retained its early crude legislation respecting crimes without subsequent revision. To a considerable extent this was the state of the English criminal law at the time Gibbon wrote, but it has since that time undergone a radical change. There is a third characteristic of the early administration of criminal law, viz., the comparative disregard of the rules of evidence.
The fact of being charged with a crime, especially if there be some strong circumstance of suspicion, naturally induces a prejudice against the accused. He is deemed guilty until he proves himself innocent; contrary to the more humane axiom of a later age, that a man is to be deemed innocent until he is proved to be guilty. The patient investigation of a case, the careful weighing of all the evidence, particularly that which is derived from circumstances, and the impartial judgment unswayed by popular excitement or the exacerbated passion of the injured party, belong to a more advanced stage of civilization and jurisprudence. Illustrations of the foregoing remarks will be found in the penal laws of nations the most celebrated for their legislation. The laws of Draco, which on account of their undiscriminating severity were said to have been written in blood, are not to be deemed the mere expression of the cruel heart of the legislator, but rather the reflection of the sanguinary disposition of the Athenian people at that period. So the decemvirs who prepared (perhaps merely compiled) the twelve tables did not declare crimes nor impose penalties abhorrent to the popular disposition, but rather were actuated by the same impulses and prejudices which prevailed in the minds of the people.
It was not indeed a democratic influence, for some provisions were made expressly for the support of patrician power over the plebeian commonalty; but, allowing a certain degree of discrimination in the estimation of crimes as affecting one or the other class politically, the code of the decemvirs may be assumed to be a fair expression of the temper of the Roman people. Upon analysis of these celebrated laws, all the defects which we have specified as incident to early legislation become apparent. The penal largely predominates over the civil, and in respect to crimes and their penalties there is an absence of what we should deem a just discrimination respecting the relative measures of crimes and the punishment due to each, and there is a want of due regard to motives or other palliative incidents. Mutilation of the person was punished by the retaliatory infliction of the same injury upon the wrong doer. A false witness was to be thrown headlong from the capitol. The killing of a man, or making use of magical words to hurt him, or the preparing of poison for him, or giving it to him, were subject alike to the penalty of death.
A parricide was adjudged to be sewn up in a sack and thrown into the river; the addition to the contents of the sack of a cock, a viper, a dog, and an ape, were the fanciful devices of those who executed the law, and not prescribed by the law itself, though in the Institutes of Justinian they appear as if the whole had been originally so enacted. Slander by words or defamatory verses was punished by beating with a club, and the authorities cited by Gibbon seem to prove that the punishment extended to death. This was undoubtedly a political law, intended in the first instance for the protection of the decemvirs themselves against any rude complaint by the people. It remained, however, unrepealed, though, like other enactments, probably unexecuted, except for tyrannical purposes. The treading down of another's corn field at night was punished with death; but the cutting down of trees, whatever might be the value, was subject to a mere fine of 25 pounds of brass. But the most apt illustration of the irrational severity of these laws was the treatment of an insolvent debtor, who, without any other imputation of fraud than the fact of owing the debt and not having paid it, could be taken home by the creditor and kept 60 days, fettered with irons not exceeding 15 pounds in weight; at the end of which time, if the debt remained unpaid, he could be brought before the people on three market days, on the last of which his body could be cut into pieces according to the number of creditors, or, if they preferred, he could be sold into foreign slavery.
The excessive severity of a law defeats the very object had in view in enacting it. "The criminal code of the decemvirs," says Gibbon, "was abolished by the humanity of accusers, witnesses, and judges; and impunity became the consequence of immoderate rigor." Magistrates were prohibited from inflicting on a free citizen any capital or even corporal punishment. All cases affecting the life or liberty of a Roman citizen were, by the laws of the twelve tables, to be tried by the comitia centuriata. The multiplication of these cases led to the giving power annually to the praetors to sit in judgment on state offences, with a certain number of judges drawn from the rolls of citizens; and new praetors were appointed with special powers for the trial of offences relating only to individuals. There was a general amelioration of the laws by the operation of these different provisions. As there was no arrest until sentence had been pronounced, the judgment could be evaded by going into voluntary exile, and the interdiction of fire and water (i. e., exile) became the extreme limit of judicial severity even upon conviction in capital cases. A new administration of criminal law was, however, introduced with the imperial government.
The senate was made the instrument of imperial power for the condemnation of criminals charged with offences against the state; and the ordinary magistrates became invested with powers which under the republic had been reserved to the people, either in the comitia or in the popular body of judices, who sat with the praetor. Any Roman citizen might be a public accuser and prosecute criminal actions, but it seems not to have been usual, except when some political object was sought, or where the accuser had some relationship to the injured party, either by blood or professionally, as in the case of patron and client. It was a peculiarity of the Roman criminal law that, however mild it became in respect to free citizens, it was enforced against slaves and foreigners with all the stringency of its ancient severity. - The laws of the Germanic nations equally illustrate the propositions above stated, and especially the absence of all classification of crimes, and the disproportion of penalties to the different degrees of moral turpitude. The Salic law contained 343 penal articles, and only 65 on all other subjects.
Of the penal laws, 150 related to cases of robbery, 74 of which referred to the stealing of animals; cases of violence against the person were the subjects of 113 articles, of which 30 related to mutilation of the person, and 24 to violence against women. The want of generalization is noticed by Guizot, as proving defect of intellectual development and the precipitation of the legislator in enacting laws: "Every case of robbery, of violence in the very fact, is taken hold of in order to immediately inflict a penalty; and there was no idea but of adding a new article of law whenever a new crime was committed, however trifling its difference from those which had been already provided for." Yet these laws present the same contrast that we have seen in the Roman, in the mildness of the penalties inflicted upon free men, and the cruelty of the punishments to which the slaves and even bond laborers (coloni) were subject. Composition (wehrgeld or wiedergeld), a pecuniary mulct, was the penalty enforced upon a free man, varying in amount with the atrocity of the offence; but upon slaves and laborers tortures and death were freely inflicted.
Similar provisions were contained in the laws of the Ripuarian Franks, the Burgundians, and the Anglo-Saxons. It was, however, understood that the injured party had a right to refuse composition, and to seek satisfaction by his own hand; which last alternative was regulated by certain rules, and hence received the designation of judicial combat. This was a peculiar feature of the Germanic law, and was not confined to criminal cases, but became a common mode of deciding questions of fact even in civil suits; and the right was reciprocal, that is to say, either party had the right to call the other to a decision of the controversy by combat. So either party had the right to challenge witnesses, and even judges, to combat, upon the allegation that the testimony was untrue or the judgment, unjust. Montesquieu maintains that the judicial combat was introduced as a natural consequence of what he calls negative proof, that is, the denial of the charge by the party under oath, which was a purgation in criminal cases, and was also admitted in civil cases with the addition of the oaths of a certain number of others, called conjuratores or compurgatores, who merely deposed that they believed the party.
The defect of this kind of proof, as well as of the other mode of determining facts, viz., by ordeal, rendered the trial by combat a necessity; at least it was far more satisfactory to the rude minds of that period than either of the others, in which perjury and deception were palpable. Another mode, which was much in vogue among the Anglo-Saxons, and which was maintained for a long period in the English law, was the compurgation before alluded to. Whether the compurgators were the same as the sectatores spoken of in the Saxon laws is uncertain. It has been supposed by some writers that they had a function somewhat similar to that of the juratores of a subsequent period. In one respect they were alike, inasmuch as they stated upon oath their opinion of the case, which opinion was not founded upon evidence, but upon some private knowledge which they were supposed to have of the matter in controversy. The proceeding by compurgators was called wager of law, which took the name from the formality of giving gage or security that the party would at a certain day make his law, that is, that he would take an oath and bring 11, or as some authorities say 12, compurgators to swear that they believed him.
In modern practice it seems to have been admitted only in an action of debt, instances of which may be seen in 2 Salk., 682, and 2 Barn, and Cress., 538; but at the period of which we speak it was a method of proceeding in criminal as well as civil cases. The juratores appear to have been in the first instance charged with the preliminary inquiry as to the guilt of any person charged with certain crimes, and upon their finding him guilty he was put to the ordeal or compurgation. This seems to have been the practice in the reign of Henry II. But we learn from Bracton, who wrote in the reign of Henry III., that the practice then was to commit the decision of the case finally to the jury, unless there was a demand of combat by one of the parties, or unless the defendant elected to wage his law.
There was still, however, nothing like the modern proceeding upon a jury trial. The jurors were not expected to decide upon evidence produced by the parties, but upon their own knowledge or information collected by them. The direction of the judge was, that whereas such a man is charged with such a crime, the jury are to make known the truth thereof. Prosecutions for crime were usually upon appeal of a private party. Any one of legal capacity to sue could prosecute for treason, but ordinarily only near kindred by blood were admitted to bring suit for homicide; a woman could prosecute only for the death of her husband, or for a rape committed upon herself, and the appeal in the former case is said by Bracton to have been only de morte viri inter orachia interfecti. In other cases the party injured was in general the prosecutor. There was, however, as before mentioned, another mode of charging a person with crime, viz., per famam patriae, a sort of indictment by the patria or jury. It does not appear how the prosecution was conducted in such a case; but as there was never any attempt to determine facts according to rules of evidence, it is probable that the first finding or indictment was conclusive, unless the party accused purged himself or took some exception to the jury. - It would exceed our limit to pursue the history of the English criminal law through all its changes.
Passing to its present state, we find forms of proceeding eminently adapted to sound judicial investigation. The function of the patria, or jury of inquisition, spoken of by Bracton, is now performed by a grand jury, not less than 12 nor more than 23 in number, upon whose indictment most criminal cases are brought before the courts for trial. The exceptions are: 1, cases of homicide where a coroner's inquisition has been returned; 2, actions which, by statute, may be brought by a private prosecutor, or informations by the master of the crown office upon the relation of a private individual; 3, informations filed ex officio by the attorney general in cases of atrocious misdemeanor endangering the government. All criminal prosecutions, except the few cases where by statute a common informer is authorized to bring an action, are in the name of the king, and conducted by his law officers. Private suits for crimes, which were formerly allowed under the name of appeals of felony, were long since practically abandoned, and were finally abolished by statute 59 George III., c. 46. So also the wager of battle by the same statute, and wager of law by 2 and 4 William IV., c. 42. The indictment, which is the basis of the arraignment and trial of criminals, was formerly required to be drawn with great technical strictness, and was often quashed for defect of form.
Thus it was necessary to set forth the full name of the person charged and a designation of his business and place of residence, also the time and place when and where the offence was committed. Certain technical words were also required, as descriptive of the crime charged, as (when pleadings were in Latin) the words proditorie et contra ligientiae suae debitum, in treason; murdravit, in an indictment for murder; ra-puit, in rape; and so in other cases. No expressions equivalent in meaning could be substituted; and after the pleadings were, by statute 4 George II., c. 26 (1730), converted into English, the corresponding vernacular terms, as "murdered," "ravished," etc, were retained with the same strictness. And so in felonies it was necessary to charge that the act was done felonice; in burglary, ourglariter. In indictments for murder it was required also to state the dimensions of the wound, and in all indictments the value of the thing which was the subject of the offence, as in larceny, or with which the offence was committed, as in murder.
In the former case, it was said to be required in order to distinguish whether it was grand or petty larceny; in the latter case, because the instrument with which a homicide was committed was forfeited as a deo-dand. This absurd regard to mere form has been, however, abrogated: 1st, by statute 7 George IV., c. 64, which prohibited an arrest of judgment or a reversal on writ of error for any of these formal defects, but which still left the objections to be taken advantage of by demurrer; and finally by 14 and 15 Victoria, c. 100 (1851), commonly called Lord Campbell's act, by which the court is directed to disregard the omission of mere formal words, as "with force and arms," or "against the peace," etc, or any mistake in time or place; and a statement of the manner or means by which the deceased came to his death is dispensed with, and amendments of indictments either in matters of form or substance are allowed upon such terms as the court shall deem reasonable. As to the designation of crimes and their punishments, the English law was until a recent period in a chaotic state.
Statutes had been accumulated according to the exigencies occurring at different times, until, by their number, such was the difficulty of determining what was obsolete and what in force, and of reconciling apparently conflicting provisions, that practically the common people had no knowledge of the penal laws to which they were subject, and cases were constantly occurring of the trial and conviction of criminals charged with offences, the nature of which, as defined by law, and the penalties prescribed therefor, they were entirely ignorant of; their ignorance, according to the old maxim, ignorantia juris non excusat, being no defence. So also the extreme and disproportioned severity of ancient laws enacted in a turbulent period, or in an unsettled state of society, still prevailed in England at the beginning of the present century. According to Blackstone, there were 160 offences which by various acts of parliament had been declared felonies without benefit of clergy, that is to say, punishable by death.
It will be sufficient to mention the cases of grand larceny, or stealing above the value of 12 pence; embezzlement of a master's goods by a servant; burning stacks of corn, hay, etc, in the night time; killing horses, sheep, and other domestic animals; breaking down dikes or bridges, or breaking away the banks of fish ponds; cutting down trees in an avenue, or growing in an orchard; the malicious tearing or defacing of the garments of a person passing in the street; all of which, and various other acts of no greater degree of criminality, were thus punished. The origin of this severity in the majority of such cases was no doubt owing to the great prevalence of a particular grievance in some locality, and, according to the former mode of reasoning, the frequency of an evil called for increased severity of punishment; but it has happened that when the emergency has ceased the law remained. Common humanity was outraged by the continuance of such a system of criminal law in a civilized community; public attention was at last directed to the necessity of reform, and important modifications were made by several different statutes, beginning with 7 and 8 George IV., c. 27 (1827), and leading to a complete revision in 24 and 25 Victoria (1861), by which capital punishment is abolished in most cases.
The criminal law of the United States closely followed that of England, except that some of the barbarous accompaniments of the death penalty were not adopted, and the penalty itself was not inflicted except for the few offences deemed most heinous. (See Capital Punishment.) - It remains to speak of some principles recognized in criminal law as to the nature of crime in respect to individuals and to the community, the degree of guilt of the person accused, and the rules of evidence by which the offence is proved. I. It is common to divide wrongs into private and public injuries, and it has been erroneously supposed that when the offence is of such magnitude as to become the subject of a public prosecution, the private right is merged. As respects some lesser crimes, as assault and battery, obtaining money by false pretences, libel, and the like, there is a right of private action independent of the proceeding by indictment, and it is not necessary that the individnal injured should procure a criminal conviction at all. In cases of larceny, robbery, and other wrongs affecting property, it is generally assumed that there must first be a conviction of the crime before there can be a civil suit for a recovery of the property taken, or damages in lieu thereof.
The only reason assigned for this in the English law is, that the injured party may thereby be more strongly induced to procure a conviction of the offender for the benefit of society. This reason is of no force in this country, where public prosecutors are appointed, and the doctrine which rests upon it is consequently not accepted. In England, as felony worked a forfeiture of the personal estate of the convict, including estates in land for life or a term of years, there was usually nothing to look to as an indemnity for private injury; yet the right of prosecuting for such injury after conviction of the offender is admitted in some old cases; and so after acquital, if there has been no collusion, an action for damages can be maintained (12 East., 409). II. As to the degree of guilt of the persons accused. This involves several inquiries, the first of which is capacity of mind. There must be the mens doli capax; for although ignorance is not in general admitted as an excuse for crime, yet this is to be understood of such only as have sufficient understanding to distinguish between right and wrong. The precise limit of capacity cannot be defined.
A vicious life undoubtedly produces hardness and insensibility, and there is often to be seen such natural depravity as is wholly inconsistent with the existence of any moral discrimination. Yet the law does not take into account any such perversity of nature, if there is any intellectual power, which is rather vaguely denominated reason. In what degree this power must exist is not susceptible of being defined by any general rule, and is often the subject of perplexing doubt in the application of the rule to particular cases. Children before the age of discretion are exempt by law from responsibility for crime, but the exact period when such discretion shall be pronounced to commence is not fixed. By the Saxon laws the age of 12 was fixed as the earliest possible development of legal understanding; between that and the age of 14 there might be guilt according to the actual capacity. But the rule of the English law now is, that capacity is not to be judged by age in any case, except that under the age of 7 a child cannot be held guilty of felony; but there is a reported case of a child of 8 years of age who was convicted of arson and hanged; so a girl of 13 was convicted and executed for killing her mistress. In all cases capacity is to be judged by actual proof.
Idiocy and lunacy excuse from the guilt of crime. If there was a total want of reason at the time the act was committed, whether the deprivation be permanent or temporary, the law acquits from all guilt; but if there be partial reason, as if there is thought and design, or faculty to distinguish the nature of actions, then there will be legal responsibility for every act. Intoxication is not admitted as an excuse for criminal misconduct. In this respect the rule of the common law is different from that of the civil law. By the latter, capital punishment was never inflicted for acts committed in a state of ebriety. The second ground of exemption is where there was no criminal intent, but the act has been committed either by accident, mistake, or necessity. Accident excuses, except where it has happened when a man was engaged in the commission of some unlawful act. A distinction is also made in respect to such unlawful act, as whether it was what istermed by the law malum in se, or only malum prohibitum, the criminality being less for any accident occurring in the latter case than in the former. There was much good sense in the rules of the Roman law in respect to culpability for accident.
Gross negligence was held as culpable as a wrong intent (non minus ex dolo quam ex culpa quisque hac lege tenetur). Thus, if a man was lopping a tree near the road, and it should fall and kill a person passing by, he was held guilty if he had omitted to give proper warning. If a soldier exercising in a place appointed for that purpose should accidentally kill a slave by throwing a javelin, he was without fault; but if it had happened in a place where he had no right to exercise, he was held guilty. Mistake is admissible when it relates to a fact, though, as before mentioned, mistake of law is no excuse; as if a person should kill another that he supposed was breaking into his house, and it should turn out to be a member of his own family, he would be excused on the ground of having mistaken the person. Necessity, as a legal excuse, includes that class of cases which the law designates as duress. In the English law one other case is also included, viz.: the criminal misconduct of the wife by the command or in the presence of her husband.
The reason given in this case is, that the wife is supposed to be under the power of her husband; but a better reason may probably be derived from the old law, by which the husband had the benefit of clergy if he could read, but the wife had not, and the rule was introduced from a motive of humanity. The exemption was allowed only in felonies other than treason and murder, but was not admitted as a defence to a charge of any misdemeanor less than felony. Duress is compulsion by the menace of death or other bodily harm, or by actual force. Blackstone limits the expression "bodily harm" to mayhem, or loss of limb; according to which the fear of being beaten would be no duress, so neither would the fear of imprisonment. In this country, on the contrary, a threat of any bodily harm, or even of the destruction of property, would be held to be a duress in that connection. But when it is set up as a justification for the commission of a criminal act, perhaps nothing less than the fear of losing life, or of some permanent bodily injury, would be admitted as a legal excuse. As to the law relating to principals and accessories, there is less discrimination than is called for by our natural sense of justice, as well as by a due regard to public policy.
An accessory before the fact, who is one that has procured or advised the commission of the crime which is the subject of prosecution, is properly held liable in equal degree with the principal for the act which has been committed, and all its natural consequences; but not for another and distinct crime which may have been committed by the principal while engaged in the commission of the offence to which he had been instigated. If A procures B to beat C, and in consequence of such beating 0 should die, A is guilty of murder; but if A hires B to beat a man, and he should set fire to his house, this being a distinct offence, A is not indictable for it as accessory. An accessory after the fact is one who, knowing a felony has been committed, receives, relieves, and assists the felon. The criminality of an accessory after the fact is in England and this country deemed less than that of the principal. The punishment is imprisonment only, even if the offence committed by the principal is punishable by death. III. The rules of evidence and mode of proceeding in criminal trials can be but briefly referred to.
The most important principle of the English and American law, and what chiefly distinguishes it from the criminal codes of other countries, is that the person accused is not compelled to testify. In the preliminary examination npon arrest, where the arrest precedes indictment, he is indeed allowed to make his statement, and such statement may be used as evidence against him. But he is usually informed by the magistrate that he is not bound to answer the charge unless he chooses to do so. Another rule, which follows naturally from the preceding, is that it is not necessary to prove the guilt of the accused by more than one witness, except in the case of treason and perjury. In the tribunals of some other countries a different rule prevails, because it is the general practice to put the accused under rigid examination; and if he denies the crime, it is an oath in his own favor, which ought not to be overbalanced by a single oath against him. It was the ancient practice in England not to allow the accused to produce witnesses; and when the courts so far relaxed this strictness as to hear witnesses for the defence, it was still without oath, and the evidence was therefore of less weight.
But by statute 1 Anne, c. 9, witnesses are required to be examined on oath for the prisoner as well as against him. The privilege of defence by counsel was until a recent period denied in the English courts in trials for treason and felonies, while by a strange inconsistency it was allowed in trials for misdemeanor. In cases of treason, which was a class of trials in which there had been the greatest outrage of common rights, relief was given by statute 7 and 8 William III., c. 3, which allowed counsel to be assigned to the prisoner upon his request; and in cases of felony, by statute 6 and 7 William IV., c. 114, by which all persons arraigned upon a criminal charge are allowed to make defence by counsel. In the United States, this right was thought of such importance that it was secured by article 6 of the amendments to the federal constitution, and in the several states a similar provision has been made either by the constitution or by law. In France, the practice formerly was to hold the accused to answer in person without the aid of counsel; but it is now an admitted right that every person charged with a criminal offence is entitled to the aid of counsel for his defence, and it is made obligatory upon the judge to assign counsel when the accused has none. (See Code des delits et des peines, art. 187 and 321; Code d"instruction criminelle, art. 294, 295.) One of the most important changes recently made in criminal law in the United States is that which in some of the states permits the accused party to appear as a witness before the jury; a change which has led to considerable controversy, but is believed to prove acceptable wherever tried.