UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
OUTLINES
OF
CEIMINAL LAW
CAMBRIDGE UNIVERSITY PRESS
C. F. CLAY, Manager
ILonUon: FETTER LANE, E.G.
Etiinfaurgi} : 100 PRINCES STREET
LonOon: STEVENS AND SONS, Ltd., 119 axd 120, CHANCEBY LANE.
iftfhj gotfc: G. P. PUTNAM'S SONS
Uombag nnti CnUuttn: MAOMIIJ,AN AND Co., Ltd.
SToronto: J. M. DENT AND SONS, Ltd.
STokoo: THE MARUZEN-KAUUSHIKI-ILVL^IU
All rights reserved
OUTLINES
OF
CRIMINAL LAW
BASED ON LECTURES DELIVERED IN THE
UNIVERSITY OF CAMBRIDGE
BY
GOUETNEY STANHOPE KENNY, LL.D., F.B.A
DOWNING PROFESSOR OF THE LAWS OF ENGLAND;
CHAIRMAN OF CAMBS QUARTER SESSIONS;
LATE M.P. FOR BARNSLEY.
Sontibus unde tremor, civibus inde salas.
SEVENXi4_ED]J
CAMBRIDGE:
AT THE UNIVERSITY ^" many
^ undertake, without
I ^ '^ J duties of a justice of the
First F.dition 1903
Reprinted 1904, 1907, 1909, 191 1, 1913, 1914, 1915
.-l/i riijhio
PBEFACE.
Some excuse seems necessary for adding to the
now somewhat redundant stores of EngUsh legal
literature another elementary manual of Criminal
Law. The only justification I can offer lies in the
fact that the present volume embodies the substance
of lectures which have been delivered at Cambridge
year by year throughout the past quarter of a
century — a period long enough to afford even the
least competent lecturer some opportunity of ascer-
taining what principles, and what illustrations, are
so successful in arresting the attention and impressing
the memory of students as to be worth putting before
them in the earliest manual which they peruse.
In reducing my lectures to the form of a book, I
have kept in view the needs of two classes of readers.
For a general outline of Criminal Law may prove
useful not only to young men preparing for acade-
mical or professional examinations, but also to many
older men w^hen called upon to undertake, without
previous legal training, the duties of a justice of the
vi Preface
peace. Both these classes find it important, moreover,
to familiarize themselves with the foundations of the
law of Evidence ; and I have therefore devoted a
portion of the present volume to that subject.
In preparing the book, I have aimed at making
its range of topics no wider than may be grasped,
upon a first perusal, even by a reader previously
unfamiliar with law. But I have tried to treat each
individual topic with such fulness as may serve to
fix it effectually in the reader's memory. Yet the
susceptibihty of his memory must depend very much
(as all lecturers soon discover) upon the extent
to which the matter in hand arouses his interest.
Fortunately the law of Crime — when once the pre-
liminary difficulties attendant upon the chaotic form
which it still retains in England have been faced and
surmounted — is a branch of jurisprudence peculiarly
capable of being rendered interesting. It is closely
linked with history, with ethics, with politics, with
philanthropy. My endeavour has been to make it
attractive to the reader, by supplying him with
enough illustrative examples to give vividness and
reality to all the abstract principles of our Criminal
Law ; and also by tracing out its connexion with the
past sufficiently to explain the various historical
anomalies with which it is still encumbered ; and,
moreover, by suggesting to him the most important
Preface vii
controversies — psychological, social, juridical — that
it seems likely to arouse in the future. Partly for
the last-mentioned purpose, and partly because their
importance even for present-day practice seems to
me to be greater than is often supposed, I have
given more than usual prominence to the subjects of
Malice, Responsibility, and the Measure of Punish-
ment. I also have availed myself freely of the
official statistics of our courts and prisons ; in the
hopes of enabling the reader to obtain a precise idea
of the present administration of criminal justice in
this country, and of the comparative importance of
the various forms of its procedure. And I have
taken account, in various places, of the important,
though as yet unsuccessful, efforts made by Parlia-
ment more than thirty years ago to improve both
the substance and the form of English criminal
law.
To readers who have time to utilize the refer-
ences given in the footnotes, it may be well to
explain that the cases cited as from " K. S. C. ''
will be found in my volume of Select Cases in
Criminal Law.
I cannot conclude this Preface without expressing
the cordial thanks I owe to my friend, Mr R. T.
Wright, for his great kindness in reading through
the whole of the proof-sheets and favouring me with
viii Preface
many valuable suggestions ; as also to my friend and
former pupil, Mr W. C. A. Landon, of Gray's Inn, for
assiduously aiding me to prepare the book for the
press, and for compiling the index.
Downing Colt,ege, Cambridge,
May 1902.
PREFACE TO THE SEVENTH EDITION.
1 learn that some beginners find Chapter I.,
in its attempt to define the nature of Crime,
exceptionally difficult. Those who do so, I advise
to postpone its perusal until after they have read
the rest of the volume. Definitions belong, indeed,
rather to the end of our knowledge than to the
beginning of it.
I am glad to know that this book has been
thought worthy of adaptation by an American
editor for use in the University of Yale ; and that
a French translation of it is about to be published.
1U15.
INDEX OF CASES
A.
PAGE
]
PAGE
R. V. Lord Abingdon
302
E. V. Balder
170,
298
Ackroyd v. Barett
158
E. V. Baldry
396
R. V. Adams
311
E. V. Ball (C. and M.)
248
K. V. Aden
190
„ [1911]
354,
494
R. V. Aitken
232
E. V. Bancroft
249
E. V. Alexander
116
E. V. Barber
478
The Alexandra
318
E. V. Barnard
245
E. V. Alice
50
Barnes v. Merritt
853
E. V. Allen
118. 303
Barnes v. Trompowsky
379
E. V. Amier
187
E. V. Barrett
137,
256
Angus V. Clifford
249
E. V. Barrouet
08,
411
Angus V. Smith
357
Barrow v. Llewellin
310
Appleby v. Franklin
97
E. V. Barrow
256
E. V. Ardley
248
E. V. Bate
395
Armory v. Delamirie
363
E. V. Bateman
258^
, 341
Ashford v. Thornton
19
E. V. Bazeley
229
E. V. Ashwell
216, 217
Beatson v. Skeue
377
Atcheson v. Everitt
8
Beatty v. Gillbauks 281
, 282^
,486
Att. Gen. v. Bowman
18
R. V. Beckett
145
Att. Gen. v. Bradlaugh
13, 344
E. V. Bediugfield
306
Att. Gen. v. Briant
377
Benbow v. Low
451
Att. Gen. v. Hitchcock
356
Bennett v. Watson
452
Att. Gen. v. EacUoff
390
E. V. Bennett
256
Att. Gen. v. Kwok-a-Sing
315
Bentley v. Vilmont
251
Aveson v. Kinnaird
366
Berkeley Peerage Case
365,
, 370
E. V. Ayes
119
E. V. Simon Bernard
Berryman v. Wise
E. V. Bertraud
351
328
491
B.
Bessela v. Stern
369
E. V. Bailey (R. and R.)
68
R. V. Best
398
R. V. Bailey (12 Cox)
231
Betts V. Armstead
44
R. V. Baines
61
R. V. Bickley
387
R. V. Bainton
467
E. V. Biugley
203
Index of Gases
PAGE
PAGE
Bird V. Jones
156
R. V. Burton (Dearsly)
338
R. V. Birmingham Railway
R. V. Butler
450
Company
64
R. V. Butt
85
R. V. Birmingham Church-
R. V. Button
250,
251
wardens
372
R. V. Bishop
44
0.
Blades v. Hipgs
195
R. V. Cabbage
212
Blake v. Allen
262
R. V. Cambridge Tailors
290
R. V. Blakeman
476
R, V. Canniff
111
R. V. Blenkinsopp
259
Elizabeth Canning's Case
R. V. Bliss
372
335,
356,
384
R. V. Boden
204
R. V. Abp of Canterbury
487
Ex parte BoUman
291
Capital and Counties Bank
V.
Bond V. Evans
47
Henty
309
R. V. Borrett
328
R. V. Carden
448
Re Borrowes
147
Carlisle v. Bragg
259
Boulter v. Justices of Kent 427,
447
U.S. V. Carr
71
R. V. Boulton (1 Den.) '243,
244
The Carrier's Case
138
(12 Cox)
288
Cartwright v. Green
217
Commonwealth v. Blodgett
71
Castle V. Burditt
132
Commonwealth v. Bowen
114
Carver v. Fierce
199
,,
131
R. V. Cassidy
472
R. V. Boyes 376, 386,
, 388
R. V. Castro
335
R. V. Bradlaugh
403
Catley v. Lowndes
227
R. V. Bradshaw
110
R. V. Chadwick (2 Moo. and R.)
259
R. V, Brailsford
289
(11 Q. B.)
301
li. V. Brasier
375
Chambers v. Bernasconi
373
R. V. Brawn
306
R. V. Chappie
88
Breese v. The State
86
Charnock v. Merchant
401
R. V. Brettell
461
R. V. Charnock
267
Brewster v. Sewell
361
Chater v. Freeth
63
R. V. Brice
173
R. V. Clieafor
194
R. V. Bridgwater
341
R. I'. Cheeseman
80
R. V. Brodribb
281
R. r. Cherry
187
Commonwealth v. Brooks
77
Ex parte Chevasse
319
R. V. Brown 81, 118,
356
Child V. Grace
369
R. V. Bruce
108
R. V. Child
164
R. r. Bryan
249
R. V. Christie
369
R. V. Buckley
373
R. V. Clarence 150, 153,
203,
242
R. V. Buckmaster
209
Clark V. Alexander
329
Bunbury v. Matthews
328
R. V. Clark (K. and K.)
203
R. V. Bunkall
190
(1 B. and B.)
470
R. V. Burgess
]14
Cleary v. Booth
lOS
R. V. Burley
398
R. V. Clewes
354
, 395
R. V. Burns
478
R. V. Closs
256
R. V. Burton (3 F. and F.)
56
Clutterbuck v. Chaffers
811
Index of Cases
XI
Coats V, Brown
Cobbett V. Kilminster
R. V. Cohen
PAGE
10
378
401
388
56
858
81
260
374
108
R. V. Coelho
Coles V. Coles
R. V. Collins (L. and C.)
(2 M. and R.)
Columbia v. Armes
Combe's Case
R. V. Coney 85, 110, 157, 281
R. V. Cooper (2 Q. B. D. ) 245, 248
(3 C. and K.) 330
Corbett v. Badger 430
R. V. Court 71
Courteen's Case 411
Courteen xk Touse 351
R. V. Courvoisier 334
Coxhead v. Richards 310
R. V. Crab 248
R. V. Cramp 150
R. V. Creswell 328
R. V. Crippen 334, 339
R. V. Croft 68
Crosby v. Percy 379
R. V. Crump 210
R. V. Cruse 72
R. V. Crutchley 129
R, V. Cuddy 119
R. 17. CuUum 232
R. V. Culmore 138
Cundy v. Lecocq 44
R. V. Curgerwen 304
PAGE
R. V. Dawson
316
R. V. Day
152
R. V. De Banks
190
R. V. De Berenger
289
De Jager v. Att. Gen.
271
R. V. Delamotte
266
R. V. De Marny
414
Derbyshire v. HoulistoQ
44
R. V. Derringtou
398
R. v. Dewhurst
282
, 361
R. V. Dilworth
153
R. V. Dobbs
177
Dodwell V. Burford
152
Doe V. Phillips
380
Doe V. Turford
373
Doe V. Ross
362
R. V. Doherty
122
The State v. Donohue
173
Doodward v. Spence
192
R. V. Dossett
43
Dowling V. Dowling
333
R. V. Dowling
268,
466
R. V. Downer
399
R. V. Dredge
338
R, V. Drew
396
R. V. DriscoU
155
Du Bost V. Beresford
366
R. V. Duckworth
80,
146
R. V. Dudley and Stephens
35, 74, 75, 76,
lOo,
479
R. V. Dugdale
81
Dyke v. Elliott
131
D.
R. V. Dalloway 122
Damaree's Case 269
Earl of Danby's Case 417
R. V. Dant 128
R. V. Davies 60, 218
R. V. Davis (R. and R.) 171, 174
R. V. Davitt 288
B.
Earle v. Picken
Eastern Counties R. C. v.
Broom
R. V. Eccles
Edgar, ex parte
Edgington v. Fitzmanrice
R. V. Edmonds
R. V. Egginton
Eley V. Lytle
171,
362
64
287
96
249
490
205
167
xu
Index of Cases
R. r. Emden
Emmens v. Pottle
R. r. Ensor
R. V. Eriswell
R. V. Esop
Governor Eyre's Case
F.
PAGK
470
309
812
865
69
413
870
164
184, 210
283
122
21)0
218
376
327
216
Fairlie v. Denton
R. V. Faulkner
R. V. Featberstone
Field V. Receiver
R. I'. Finney
R. V. Firth
R. V. Fish
Fisher v. Ronalds
Doe dem. Fleming v. Fleming
R. V. Flowers
R. V. Foley 195, 198
Ford V. Wiley 69
The Forester's Case 198
R. V. Foster (7 C. and P.) 342
R. V. Foulkes 231
R. V. Francis 355, 363
R. V. Franklin 120
Freeman r. Cooke 209
R. V. Frost 269, 327, 478
R. V. Pursey 361
G.
R. V. Gale
232
R. V. Gamlen
61
R. V. Gardiner
176
Gardner v. Mansbridge
167
R. V. Gardner
(L.
and C.
)
210
M
(L.
R. 1899)
478
R. V. Gay
387
Gayford v. Choulor
167
R. V. Gaylor
138
Gerbage's Case
265,
467
R. V. Gibbon
298
R. V. Gibbons
877,
397
R. V. Gibson
341
R. V. Giddins
401
R. V. Gilbert
241
PAOE
R. V. Giles 246, 250
R. V. Gill 288
R. V. Gilligan 369
R. V. Gilson 406
R. V. Gloster 389
R. V. Good 461
R. V. Gordon 249
Lord George Gordon's Case 273, 366
Goulder v. Rook 44
R. V. Graham 414
R. V. G. N. E. Railway
Company 64
Green v. Goddard 156
R. V. Greening 117
Greenough v. Eccles 358
Greenough v. Gaskell 377
Gregory v. Brunswick 289
R. V. Gregory 79
Gregson v. Gilbert 75
R. V. Grey 135
R. V. Lord Grey 289
R. V. Griffin (11 Cox) 60, 109
R. V. Griffith 86
R. V. Grirawood 470
Keepers v. Gwinn 296
H.
Commonwealth v. Hackett 127
R. V. Hadfield 53, 67, 383
R. V. Haines 172
R. V. Hall (R. and R.) 172
(3 C. and P.) 204
R. V. Halloway 134
Hamilton v. Bone 167
R. V. Hammond 290, 292, 352
R. V. Hamp 450
Haunam v. Mockett 201
R. V. Hanson 153
R. V. Harborne 329
Hardcastle v. Biclby 45
R. V. Hardie 269
The State v. Hardie 66
Hardman v. Booth 207
R. V. Hardy 273, 377
R. V. Hargrava 388
Index of Cases
Xlll
E. V. Harris (15 Cox)
,, (Leach)
„ (5 B. and Aid.)
(C. C. C.)
R. V. Harrison (Leach)
r, (St. Tr.)
E. r. Hassall
E. V. Hausmann
Haynes v. Stephenson
E. r. Harward
E. V. Hazelton
E. V. Hazy
E. r. Hearn
Heffer v. Martin
E. V. Hehir
E. V. Hench
E. V. Hennah
E. V, Hensler
Herman v. Jeuchner
E. V. Hewlett
E. r. Hibbert
E. V. Higgins (2 East)
Higham v. Eidgway
E. V. Hill (2 Den.)
E. r. Hilliard
E. V. Hilton
E. V. Hind
E. V. Hindmarsh
Hobbs V. Winchester
E. V. Hobson
E. t'. Hodgkinson
E. V. Hodgkiss
E. V. Hodgson
E. V. Hoggins
E. V. Holchester
Holcombe v. Hewson
E. V. Holden
E. V. Holland
Hollingham v. Head
E. V. Holloway (1 Den.)
PAGE
165
171
386
472
184
209
389
400
189
13
322
126
233
246
343
69
290
216
206
151
82
450
155
42
79, 82
372
374
206
120, 127
389
338, 339
44
327
401
392
2G0
231
477
353
117, 297
127
353
211
(•5 C. and P.) 213
(5 B. and Aid.) 312
(65 J. P.) 390
E. V. Holloway Governors
R. V. Hook
Hopewell v. De Pinna
E. t;. Horner
E. V. Horsey
Hoskins v. Tarrance
Howatson v. Webb
Howell's Case
E, V. Howse
E. V. Hudson
R. V. Huggins
E. V. Hughes (Leach)
,, (East P. C.)
(4Q. B. D.)
E. V. Hull
E. V. Hunkey
E. V. Hunt (1 St. Tr., N. S.)
(2St.Tr.,N. S.)
E. V. Hutchinson
E. V. Id grey
Inues V. Wylie
E. V. Instan
R. V. Izod
J.
R. V. Jackson (C. C. C.)
,, (1 Lewin)
R. V. James (24 Q. B. D.)
(10. and K.)
R. V. Jameson 318, 422,
R. V. Jarvis
R. V. Jenkins (1 Cox)
(1 C. C. R.)
,, (R. and E.)
E. V. Jennison
The Case of the Jews
Johnson v, Fenuer
Johnson v, Lawson
E. V. Johnson (0. and M.)
(6 East)
(27 T. L. R
Jolley V. Taylor
PAGE
190
299
385
329
257
137
199
259
103
255
401
45
175
363
431, -146
136
loo
282, 291
312
469
367
152
122
121
56
299
89
152
459, 468
395, 396
387
389
398
248
312
322
370
173, 205
468
.) 253
359
XIV
Index of Cases
U. r. JoucH (1'2 Cox)
{C. and M.)
(1 Den.)
(7 C. and P.)
(1 Salk.)
„ (L. R. 1898)
,, (1 Douglas)
(11 Q. B. D.)
(31 St. Tr.)
U.S. I'. Jones
Jones V. Clay
K.
PAGE
P.\OK
66, 108
U. V. Lillyman
367
191
IL V. Lloyd (4 Esp.)
289
212
(19 Q. B. D.)
297
233
(4 C. and P.)
389
210
(6 C. and P.)
397
247
K. V. Lord Mayor (16Q. B,
, D.)
73
257
(10 Cox)
465
329
Lound V. Grimwade
450
391
R. V. Lovett
342
71
R. V. Lowe
120
, 127
96
R. V. Lumley
304
R. V. Kelly
85
R, V. Kennett
286
R. V. Kew
128
R. V. Kilham
243
King V. R.
416
R. V. Kinnerslcy
288
R. V. Kirkham
119
R. V. Kuight
123
h.
R. V. Labouchere
Lad's Case
Laird v. DobcU
Lamb's Case
R. V. Lamson
R. V. Langley
R. r. Langmead
R. V. Lapier
R. V. Latimer
R. V. Lavey
R. V. Ledbetter
R. V. Lee
Leigh Peerage Case
Le Mcsurier v. Le Mesurier
R. V. Levett
Levi V. Levi
R, V. Levy
B. V. Beatrice Levy
R. V. Lewis (Foster)
(D, and B.)
Lilbume's Case
312, 454
137
44
186
852
313
329
187
148, 149
298
390
246
334
302
60
290
289
88
258
411
347. 349
Lynch HO, 269
M.
R. V. Macallister 182
R. V. McCafferty 368
R. V. Macdaniel 126, 205
R. V. Macdonald 191
R. V. McGrath 206
Macgrcgor v. Kelly 328
R. V. McGrowther 73
R. V. Machekequonabe 67
R. V. McKale 206
R. V. Mackalley 462
State V. McKay 153
R. V. Macklin HO
R. V. Maclane 271. 272
Maclcod V. Att. Gen. 141
R. V. McNaugbten (10 CI. and F.)
(14 Cox)
R. V. Maddy
R. V. Mahon
Makin v. Att. Gen.
Commonwealth v. Malin
Malpas V. Clements
Maltby v. Christie
R. V. Manley
R. V. Manning
The Marianna Flora
Marks v. Beyfus
Marks v. Froglcy
Marriott v. Chamberlain
54
120
117
96
355
266
328
368
84
326
411
377
70
451
Index of Cases
XV
K. V. Marshall (C. and M
)
389
R. V. Mosley
389
Martin v. Piidgeon
431
Moss V. Hancock
225
R. V. Martin (3 C. and P.)
108
, 123
R. V. Most
414
(8 Q. B. D.)
150
R. V. Mucklow
218
)
(R. and R.)
171
Mulcahy v. R.
287
, 474
,
(1 Leach)
193
R. V. Muller
336
>
(8 Ad. and E
)
243
R. V. Mullius
387
»
(1 F. and F.)
249
Mullins V. Collins
46
,
(1 C. C. R.)
250
R. V. Munslow
308
,
(5 Q. B. D.)
258
R. V. Murphy
246
E. V. Mason
119
R. V. Murray
232
R. V. Masters
232
R. V. Mussetti
167
R. V, Mastin
85
Mawgridge's Case
104
N.
R. V. Mazagora
262
Mead v. Young
258
R. V. Nash
334
339
R. V. Mead
388
R. V. Nattrass
164
R. V. Meakin
61
R. V. Neal
387
R. V. Meany
479
R. V. Negus
230
231
Meath v. Winchester
380
R. V. Neill
354
389
R. V. Medland
191
Newman v. Jones
45
Mellor V. Deuham
17
Newton v. Harland
156
Mellor V. Walmesley
373
R. V. Noakes (4 F. and F.
)
122
Lord Melville's Case
351,
418
Norris v. Gawtry
140
Merry v. Green
217
R. V. Nutbrown
173
E. V. Middleton
207
242
Commonwealth v. Mink
114
0.
Miriams v. Our Dogs
7
O'Conuell's Case
457
R. V. Mitchell
389
R. V. O'Doherty
475
Mogul Steamship Go. v. McG
rregor
R. V. O'Flynn
407
287,
290
R. V. Oliver
208
R. V. Monks
128
Omichund v. Barker
375
Monson v. Tussauds
308
Oppenheimer v. Frazer
206
R. V. Moore (3 C. and K.]
62
R. V. Orbell
289
(2 Den.)
397
Osborn v. Veitch
155
Morden v. Porter
44
R. V. Oxford
56
R. V. Moreton
250
R. V. Morphew
342
P.
Morris v. Daviea
327
R. V. Packard
124
Morris i'. Miller
327
R. V. Paget
402
R. V. Morris
203
R. V. Paine {The Times)
R. V. Morrison
202
121, 124,
453,
477
Morse v. C. R. Railroad
399
(1 Salk.)
390
R. V. Morton (2 C. C. R.)
256
Parker v. Alder
47
(2M. andR.)
396
R. V. Parker (9 C. and P.
)
165
Moseley'
s Case
18
(7 C. and P.
)
247
K.
XVI
Index of Cases
R. V. Parker (C. and M.)
(C. C. C.)
R. V. Parkes
Parmiter v. Couplaud
R. V. Paineli
E. V. Pairy
R. r. Parsons
E. V. Patch
R. V. Pajne
Peaceable v. Watson
R. V. Peacbam
Tiie Ca?e of Peacocks
Peaiks V. Ricbardsou
R. v. Pecle
R. V. Pembliton
Pennell v. Meyer
206,
137, 147,
203,
R. V. Perry
R. V. Petcb
R. V. Peters (1 C. and K.)
(C. C. C.)
Phelps
Pbillimore v. Machon
R. V. Phillips (2 East)
R. V. Pierce
Pike
Pinchbeck
Pinney
Pockett
Poole V. Dicaa
R. V. Porter
B. V. Poulton
R. V. Powell
Commonwealth v. Presby
Lord Preston's Case 26G, 267,
Price V. Earl of Torringtou
R. V.
R. V
R. V
E. V
E. V
198,
V. Pricej
V. Prince (2
(1
V. Probert
V. Puddifoot
V. Purdey
C. R.)
C. it.)
Pyne's Case
PAOB
38.3
145
259
309
292
109
292
33-1
254
372
267
194
466
389
164
370
389
196
192
396
444
143
210
215
389
244
286
249
373
289
129
416
66
273
373
456
41
243
164
459
437
267
Queen Caroline's Case 345, 348
R
Eaffles V. Wichelhaus
E. V. Ramsay
Eandle v. Blackburn
Eapp V. Latham
Eedford v. Birley
EeJgate v. Haynea
Eedway v. Farndalo
E. V. Reed
E. V. Eees
E. V. Eeeve
E. V. Eeeves
E. V. Eegan
EeyuoLls v. United States
E. V. Ehodes 355,
E. r. Eichards
E. I'. Eichardson
E. V. Eidgway
E. V. Eiley (Dearsly)
(L. R. 1896) 25.-
(18 Q. B. D.)
E. V. Ring
E. V. Eitson
E. V. Eobert3
E. V. Eobinson
Eobson V. Biggar
E. V. Eoche
Eogers v. Hawken
Eoper V. Enott
E. V. Eose (15 Cox)
(68 L. J. E.)
E. V. Eough
E. V. Eowland
E. V. Eowton 353,
Eoyson's Case
E. V. Eush
Earl Eussell's Ca'^e
Eussell V. Jackson
E. V. Russell 138,
K. V. Eussett
S. V. S.
E. j;. St George
R. V. Salisbury
R. V. Salvi
111 ic Saudilanda
PAGE
217
313
370
363
366
47
322
192
120
396
129
360
67
400, 402
396
326
248
213
, 257, 259
359
81
257
292
244
17
469
397
166
103, 154
394, 449
194
294
391, 392
296
175
303, 417
377
165, 172
209
20, 97
152, 466
133
469
379
Index of Cases
xvii
PAGE
PAOE
R. V. Saunders (Plowden)
84, 87
R. V. Stone
352
(L. R. 1899) 341
R. V. Strahan
469
R. V. Sawyer
127
Commonwealth of Massach. v.
Scattergood v. Sylvester
226
Stratton
153
R. V. Schauia
830
R. V. Stratton
74
R. V. Searing
201
R. V. Streetcr
184
R. V. Sellars
305
R. V. Stride
194
R. V. Sellis
129
R. V. Stroulger
458
Semayne's Case
161
R. V. Stubbs
386
R. V. Senior 67,
122 129
R. V. Sullena
232
R. V. Sern6 136, 137,
468, 471
R. V. Sullivan
115
R. V. Seward
290
R. V. Swallow
173
R. i'. Sharman
263
R. V. Swindall
85
, 128
R. V. Sbeean
401
R. V. Swinnerton
399
R. V. Shellard
292
R. V. Swinson
215
R. V. Sheppard
41
R. V. Sheridan
361
T.
Sherras v. De Rutzen
44
R. V. Tate
386
R. V. Shickle
194
R. V. Taylor (1 F. and F
.)
81
R. V. Shimmin
402
(2 C. C. R.)
86
Shortt V. Robinson
342
(8 C. and P,
.)
397
R. V. Algernon Sidney
267
[1911]
187
R. V. Simson
187
R. V. Thistlewood 267,
345,
, 361
R. V. Sleep
48
Thomas v. David
357
R. V. Sliugsby
827
R. ('. Thomas
116,
139
R. V. Smith (Moo.)
172
Thomas v. Bradbury
309
(R. and R.)
176
R. V. Thompson
186
(6 Cox)
183
R. V. Thorp
290
(IC. C. R.)
184
E. 1'. Thurborn
186,
214
(D. and B.)
245, 260
R. V. Tideswell
207
(17 Cox)
452
R. V. Tite
231
Smith V. Dear
14
In re Tivnan
316,
411
Smith V. G. M. C. Co.
230
R. V. Tolson
48,
305
R. V. Spilsbury
398
R. V. Topham
312
E. V. Standley
206
Toppen V. Marcus
42
Statham v. Statham
78
R. V. Townley
195,
198
R. V. Stephens
35
E. V. Townsend
448
»>
46
R. V. Trebilcock
212
>i
75
Tuberville v. Savage
152
Stephens v. Myers
152
Tucker's Case
271
R. V. Stei^heuson
390
R. V. Tuffs
262
R. V. Stevens
459
R. V. Turner
345
R. V. Stevenson
118
R. V. Stewart
242
U.
R. V. Stimpsou
478
Usill V. Hales
310
52
XV 111
Index of Cases
V.
PAGE
PiOK
Vaughan's Case
88
R. V. Wild
116
Veitue V. Lord Olive
289
R. V. Wiley
252
E. V. Villensky
253
R. V. Wilkes
387
R. V. Vincent
282
li. V. Wilkinson
Wilkinson v. Downton
197
126
W.
Williams v. East India Co. 326
,343
R. V. Wade
204
Williams v. Innes
368
R. V. Wakefield
290
Williams v. Williajas
394
R. V. Walkden
153
R. V. Wilhams (6 C. and P.)
206
R. V. Walker
327
(7 C. and P.)
233
Goveruor Wall's Case
127,
410
(5 B. and Aid.)
312
R. V. Walsh
187
R. V. Williamson
248
R. V. Walters
119
R. V. Willshire
329
R. V. Ward
7
R. V. Wilson (9 C. and P.)
232
Warren v. Greenville
372
R. V. Windsor
397
R. V. Warringham
894,
395
R. V. Winkworth
352
Watson V. Jones
309
Wise V. Dunning 282,
. 486
Watson V. Martin
322
R. V. Withers
377
R. V. Watson
356
R. V. Wood (3 B. and Ad.)
14
Weaver v. Ward
158
R. V. Woodcock
388
Webb V. Fox
328
Woodley v. Cork
148
Prof. Webster's Case
R. V. Woolcock
459
139, 339,
383,
393
R. 7'. Woolmer
445
E, V. Welch
14S
The State f. Wray
77
>>
169
Wrigbt V. Doe (7 A. and E.)
352
Wiieeler v. Le Marchant
377
,, (1 A. and E.)
379
R. V. Whitchurch (7 Q. B.
D.)
18
Doe dem. Wright v. Tatham
365
(24 Q. B. D.
) 289
Wyatt V. Aland
459
Commonwealth v. White
153
Whitehorn v. Davison
241
Y.
Whitelock v. Alusgrove
379
K. V. Whitmarsh
138
R. V. Yewiu
357
R. V. Wicker
451
INDEX TO STATUTES.
statute
9 Hen. 3, c. 1
3 Edw. 1, c. 10
6 Edw. 1, c. 1
25 Edw. 3, St. 5, c. 2
23 Hen. 8, c. 1
25 Hen. 8, c. 20
32 Heu. 8, c. 9, s. 3
35 Hen. 8, o. 2, s. 1
1 Edw. 6, c. 12, 8. 22
5 Eliz. c. 1
5 Eliz. c. 9
1 Jac. 1, c. 11
3 Jac. 1, c. 4
4 Jac. 1, c. 5, 8. 2
22 & 23 Car. 2, c. 1
29 Car. 2, c. 7
31 Car. 2, c. 2
I W. & M. St. 2, c. 2
3 W. & M. c. 9, 8. 5
7 & 8 Will. 3, c. 3
II Will. 3, c. 12
11 & 12 Will. 3, c. 7
12 <fe 13 Will. 3, c. 2
lAnne, St. 2, c. 21,8. 3
6 Anne, c. 23, s. 9
6 Anne, c. 41, s. 1
7 Anne, c. 12
7 Anne, c. 21, s. 14
1 Geo. 1, St. 2, c. 5
9 Geo. 1, c. 22
Title or Topic Pa^e
Magna Charta 407, 426
Attorneys 466
Statute of Gloucester 487
Treason Act, 1351 92, 2G5
Murder 124
Praemunire 279
Perjury 294
Treason Act, 1544 413
Evidence 275, 385
Praemunire 131
Perjury 295
Bigamy 300, 304
Becusancy 317
DrunkenDes3 60
Coventry Act 145
Sunday Observance Act, 1077 27, 281
Habeas Coi pus Act 15, 279, 493
Bill of Rights 449, 481
Evidence 188, 385, 410
Treason Act, 1695 275, 419, 466
Colonial Governors Act, 1699 413, 421
Piracy Act, 1699 316
Act of Settlement 492
Treason 270
Praemunire 279
Succession to the Crown Act, 1707 270
Diplomatic Privilegea Act, 1703 94, 315
Treason Act, 1708 275
Eiot Act 284, 410
Cattle-maiming 6, 168
XX Index to Statutes
Statute
Title or Topio
Page
2 Geo. 2, c. 25, s. 2
Perjury Act, 1728
299
9 Geo. 2, 0. 16
Nullum Tempus
410
9 Geo. 2, 0. 30
Foreign Enli.stment Act,
1736
317
12 Geo. 3, c, 20
Felony and Piracy Act, 1772
407
12 Geo. 3, c. 24, s. 1
Dockyards Ac. Protection Act, 1772
141,
163
13 Geo. 3, c. 63
East India Company Act
, 1772
408
21 Geo. 3, c. 49
Lord's Day Observance Act, 1780
16
26 Geo. 3, c. 71
Knackers' Act, 1736
98
30 Geo. 3, c. 48, a. I
Treason Act, 1790
276
32 Geo, 3, c. 60
[Fox's] Libel Act, 1792
310
36 Geo. 3, c. 7
Treason Act, 1795
273
3y Geo. 3, 0. 69, a. 104
Arson
141,
163
89 Geo. 3, c. 85
Embezzlement
186,
229
42 Geo. 3, o. 85
Colonial officials
421
54 Geo. 3, o, 146
Treason Act, 1814
276
59 Geo. 3, c. 69
Foreign Enlistment Act,
1819
318
1 Geo. 4, c. 57
Whipping
484
8 Geo. 4, 0. 46
Levy of Fines Act, 1822
452
3 Geo. 4, c. 114
Hard labour
284,
299
4 Geo. 4, c. 52
Suicide
112
5 Geo. 4, c. 83
Vagrancy Act, 1824
320,
346,
405,
444
6 Geo, 4, c, 113, s, 9
Slave Trade Act, 1824
316
6 Geo. 4, c. 50
Juries Act, 1825
455
7 Geo, 4, c. 64
Criminal Law Act, 1826
449,
458,
468,
487
7 & 8 Geo. 4, o. 28
Criminal Law Act, 1827
141,
163,
219,
392,
467,
481,
483
7 A 8 Geo. 4, c. 29
Burglary
174,
179,
200
9 Geo. 4, c. 31
Offences against the Person Act,
107,
141,
264,
1828
300
9 Geo. 4, c, 69, a, 2
Night Poaching Act, 1828
444
10 Geo. 4, c. 44
Metropolitan Police Act,
1829
440
2 Will. 4, c. 34, a. 1
Coinage Offences Act, 1832
270
2 & 3 Will. 4, c. 75
Anatomy Act, 1832
192
2 & 3 Will. 4, c. 123
Forgery
270
4 & 5 Will. 4, c. 36
Central Criminal Court Act, 1834
424
6 c& 7 Will. 4, c. Ill
Previous Conviction Act,
1836
392
7Will.4cfelVict.c,36
Post Office (Offences) Act, 1637
218,
221
7Wiil.4&lVict.c.88
Piracy Act, 1837
141,
316,
317
1 & 2 Vict. c. 96
Larceny
220
2 cfe 3 Vict. c. 47
Metropolitan Police Act,
1839
444,
445
Index to Statutes
XXI
statute
Title or Topic
Page
2 & 3 Vict. c. 71
Metropolitan Police Courts Act,
1839
346, 440,
444
5 & 6 Vict. 0. 38
Quarter Sessiou8 Act, 1842
425
6 & 7 Vict. c. 85
Evidence Act, 1843 [Ld. Denraan's]
374
6 & 7 Vict. c. 96
Libel Act, 1843 [Ld. Campbell's]
308, 314,
488
409,
6 & 7 Vict. c. 98
Slave Trade Act, 1843
408
9 & 10 Vict. c. 24
Central Criminal Court Act, 1846
374
9 & 10 Vict. 0. 62
Deodands, 1846
107
10 & 11 Vict. c. 89, 8. 15
Town Police Act, 1847
444
11 Vict. c. 12, ss. 6 & 7
Treason Felony Act, 1848
274
11 & 12 Vict. c. 42
Indictable Offences Act, 1848
96, 389,
429,
442, 446-451
11 & 12 Vict. c. 43
Summary Jurisdiction Act, 1848
410, 429,
432
430,
11 & 12 Vict. c. 44
Justices Protection Act, 1848
428, 448
11 & 12 Vict. 0. 78
Crown Cases Eeserved
420
12 & 13 Vict. c. 92, 8.2
Cruelty to Animals Act, 1849
169
14&15Vict. c.19,8.11
Prevention of Offences Act, 1851
444
14 & 15 Vict. 0. 55
Criminal Justice Administration
Act, 1851
449
14&15Vict. 0.99, 8.14
Evidence Act,1851[Ld.Brougham'8]
362, 374,
400
14 & 15 Vict. c. 100
Criminal Procedure Act, 1851
293, 423,
460-
463,465,468,
476
16 & 17 Vict. c. 99
Penal Servitude Act, 1853
482
16&17Vict.c.ll9,8.3
Betting Act, 1853
431
17 & 18 Vict. c. 125,
8. 27
20 & 21 Vict. c. 3
Common Law Procedure Act, 1854
378
Penal Servitude Act, 1857
483
20&21Vict.c. 43,8.2
Summary Jurisdiction Act, 1857
437
20 & 21 Vict. 0. 54
Fraudulent Trustees and Bankers
Act, 1857
24, 189,
236
22 & 23 Vict. 0. 17
Vexatious Indictments Act, 1859
10, 453,
465
464,
24 & 25 Vict. c. 94
Accessories and Abettors Act, 1861
89, 464
24 & 25 Vict. c. 96
Larceny Act, 1861
s. 1
176, 227
8.3
189
8.4
219
8.5
462
8.7
219, 483
xxii Index to Statutes
StatutQ
Title or Topic
Page
24 & 25 Vict. c. Of.
Laiccuy Act, 18G1
8. 10
220
8. 11
220
B. 12
194
B. 13
194
B. H
194
B. 15
194
8. 18
222
8. 21
222
s. 27
222
8. 28
200, 222
8.31
222
B. 32
222
8. 36
168, 222
B. 37
168
B. 38
98, 222
B. 41
463
B. 42
220
8.43
220
6.44
220
8. 45
220
8. 50
179
6. 51
176
8. 52
177
8. 53
171, 174
B. 54
154
B. 56
179
8.57
179
s. 58
154
8.60
463
8. G2
221
8. 64
219
8. 68
229, 231
B. 71
462
8. 72
233, 463
8.74
188
S8. 75-89
236
8.86
236
B. 88
240, 251,
B. 89
243
8. 90
245
8. 91
252, 254
464
Index to Statutes
XXlll
statute
24 & 25 Vict. c. 96
8.95
8.97
8. 100
Larceny
Title or
Act, 1861
Topic
Page
254
254
224, 226
8. 102
8. 103
7
444
8. 104
s. 116
445
392
24 & 25 Vict. c. 97
ss. 1-5
8. 11
8.12
8. 14
Malicious Damage
Act,
1861
162, 106, 485
163
161
161
166, 221
s. 16
1G3, 1C7, 435
8.24
8. 26
8.40
167
163
169, 177
8.42
8. 51
163
162, 166
8. 52
8. 53
8.57
8.58
162, 166, 168
168
445
168
s. 61
444
24 & lb Vict. c. 98
8. 1
Forgery
Act,
1861
255
261, 263
8. 16
8.35
8.44
-
5
261
261
8.58
24 & 25 Vict. c. 99
6. 1
8.37
24 & 25 Vict. c. 100
8.2
8.4
Coinages Offences Act, 1861
Offences against the Person Act, 1861
5
444
392
145, 149, 48c
4Q5, 491
141, 293, 414
8.6
8.6
124
460
8.9
141, 413
8.11
S.20
8.23
141
146
146, 151
S.24
153
xxiv Index to Statutes
statute Title or Topic PaRe
24 & 25 Vict. 0. 100 Offences against the Person Act, 1861
8. 38 158, 159
8. 42 159, 160
s. 43 159
8. 44 469
8. 46 159
s. 47 149, 153, 159
8. 57 142, 301, 304,
413
8. 60 129
B. 66 445
25 & 26 Vict. 0. 60, s. 9 Summary Jurisdiction Act, 1862 160
25 & 26 Vict. c. 72 Companies Act, 1862 466
25 & 26 Vict. c. 88 Merchandise Marks Act, 1862 257
26 & 27 Vict. c. 44 Garottors Act, 1863 484
26 & 27 Vict. c. 103 Misappropriation by Servants Act,
1863 213
28 & 20 Vict. c. 18, s. 8 Criminal Procedure Act, 1865 378
29 & 30 Vict. c. 52 Prosecutious Expenses Act, 1866 449
29 & 30 Vict. c. 118,
8. 14 Industrial Schools Act, 1866 486
30 & 31 Vict. c. 35 Criminal Law Amendment Act, 227, 448, 465,
1867 487, 488
31 Vict. c. 24, s. 2 Capital Punishment Amendment
Act, 1868 141
31 & 32 Vict. c. 116 Larceny Act, 1868 24, 196
31&32 Vict. c. il9, 8.2 Regulation of Eailways Act, 1868 431
32 & 33 Vict. c. 62, s. 5 Debtors Act, 1869 13
B. 13 247
8. 18 465
83 & 34 Vict. c. 2b Forfeitures Act, 1870 113, 276, 280
s. 1 93, 94
8.2 97
8. 3 95, 486
8. 4 95, 489
S3 & 34 Vict. c. 52 Extradition Act, 1870 408
33 & 34 Vict. c. 90 Foreign Enlistment Act, 1870 318, 413
34 & 35 Vict. 0. 108 Workhouses 20
34 & 35 Vict. c. 112, Prevention of Crimes Act, 1871
8. 12 159
B. 19 355
85 & 36 Vict. c. 94 Licensing Act, 1872 46, 60
86&37Vict.c.06,B.47 Judicature Act. 1873 17,91,419
Index to Statutes xxv
statute Title or Topic Page
37 & 38 Vict. c. 36 False Personation Act, 1874 251
38 & 39 Vict. c. 24 Falsification of Accounts Act, 1875 234
38 & 39 Vict. 0. 36 Artizans' and Labourers' Dwellings
Improvement Act, 1875 28
38 & 39 Vict. 0. 66 Statute Law Bevision Act, 1875 449
38 & 39 Vict. 0. 80 Kemission of Penalties Act, 1875 16
38 & 39 Vict. 0. 86 Conspiracy and Protection of Pro-
perty Act, 1875 290
3'J & 40 Vict. c. 3G, Customs Consolidation Act, 1876 444
B. 190
39 & 40 Vict. c. 59 Appellate Jurisdiction Act, 1876 416, 450
40 & 41 Vict. 0. 14 Evidence Act, 1877 402, 405
40 441 Vict. 0.21,8. 40 Prisons Act, 1877 483
40 & 41 Vict. c. 68 Destructive Insects Act, 1877 5
41 Vict. c. 19 Matrimonial Causes Act, 1878 160
42 & 43 Vict. c. 11 Bankers' BooksEvidence Act, 1879 362
42 & 43 Vict. c. 49 Summary Jurisdiction Act, 1879 429
8. 10 92, 434, 485
s. 11 92, 434, 485
B. 12 92
8. 14 434
B. 16 95, 433
B. 17 92, 159, 435
B. 19 447
8. 20 429, 447
s. 33 437
42 & 43 Vict. c. 55, s. 8 Prevention of Crimes Act, 1879 486
43 & 44 Vict. c. 9, s. 1 Definition of Time Act, 1880 176
43 & 44 Vict. c. 45, s.2 Merchant Shipping Act, 1880 157
44 & 45 Vict. c. 60, s. 5 Newspaper Libel Act, 1881 433, 448, 465
44 &45 Vict. c. 69 Fugitive Offenders Act, 1881 412
45& 46 Vict. c. 19 Interments (felo de se) Act, 1882 113
45 & 46 Vict. c. 50 Municipal Corporations Act, 1882 442, 455
45 & 46 Vict. c. 56, s. 23 Electric Lighting Act, 1882 200
45 & 46 Vict. 0. 75 Married Women's Property 184,210,405
46&47 Vict. c. 3 Explosive Substances Act, 1883 346, 413
46 & 47 Vict. c. 38 Trial of Lunatics Act, 1883 67, 59
47&48Vict. c. 43, s. 7 Summary Jurisdiction Act, 1884 447
47 & 48 Vict. c. 76,8.11 Post Office Protection Act, 1884 261
48 & 49 Vict. 0. 69 Criminal Law Arr.endment Act, 410, 425, 463.
1885 465, 487
49 & 50 Vict. c. 38 Eiot Damage Act, 1886 286
50 & 51 Vict. c. 28 Merchandize Marks Act, 1887 257, 465
50 & 51 Vict. c. 71 Coroners Act, 1887 455
xxvi Index to Statutes
Statnte Title or Topic Pngo
51*52 Vict. c. 43 County Courts Act, 1888 7
51 & 52 Vict. 0. 46 Oaths Act, 1888 296, 375
52 & 53 Vict. 0. 12 Assizes Relief Act, 1889 449
52 & 53 Vict. c. 52, s. 6 Omcial Secrets Act, 1889 413
52 A 53 Vict. c. 03, s. 2 Interpretation Act, 1889 64, 419
53 & 54 Vict. c. 5, s. 97 Lunacy Act, 1890 455
54 & 55 Vict. c. 39 Stamp Act, 1891 407
54 & 55 Vict. c. 67 Statute Law Revision Act, 1891 274
54 & 55 Vict. 0. 69 Penal Servitude Act, 1891 219, 482
56 & 57 Vict. c. 54 Statute Law Revision Act, 1893 483
56&57Vict.c.71,8.24 Sale of Goods Act, 1893 220,242,251
57 & 58 Vict. c. 60 Merchant Shipping Act, 1894 408, 413
59 & 60 Vict. c. 27 London Cab Act, 189G 244
59 & 60 Vict. 0. 51 Vexatious Actions Act, 1896 464
59 & 60 Vict. c. 52 Larceny Act, 1896 414
59 & 60 Viot. c. 57 Burglary Act, 1896 425
60 & 61 Vict. c. 30 Police Property Act, 1897 227
61 & 62 Vict. c. 36 Criminal Evidence Act, 1898 305, 345, 400,
404,405,406
61 & 62 Vict, c. 41 Prisons Act, 1898 483
61 & 62 Vict. c. 49, s. 5 Vaccination Act, 1898 484
62 & 63 Vict. c. 22 Summary Jurisdiction Act, 1899 433
1 Edw. 7, 0. 10 Larceny Act, 1901 235, 236
3 Edw. 7, c. 38 Poor Prisoners' Defence Act, 1903 450, 513
4 Edw. 7, c. 15 Prevention of Cruelty to Children 375, 386
6Edw.7, c. 34 Prevention of Corruption Act, 1906 465
7 Edw. 7, 0. 17 Probation of Offenders Act, 1907 433, 512
7 Edw. 7, c. 23 Criminal Appeal Act, 1907 420, 490
7 Edw. 7, c. 47 Deceased Wife's Sister Act 801
8 Edw. 7, c. 15 Costs in Criminal Cases Act 435, 465, 487
8 Edw. 7, c. 41 Assizes and Quarter Sessions 519
8 Edw. 7, c. 45 Punishment of Incest Act 143, 405, 465
8 Edw. 7, 0. 46 Criminal Appeal 420
8 Edw. 7, c. .^O Prevnntion of Crime A'ct, 1908 484. 491, 509
8 Edw. 7, c. 67 Cliildren Act, 1908 51, 121, 375,
386,405,435,
463,405
1 & 2 Geo. 5, c. 6 Perjury Act, 1911 205, 385
2 & 3 Geo. 5, c. 20 Vagrancy (Souteneurs) 323
2 & 3 Geo. 5, c. 22 Aerial Navigation Act 103
3 & 4 Geo. 5, c. 27 Forgery Act, 1913 255 — 263
3*4 Geo. 5, c. 28 Mental Deficiency Act, 1913 509
4 A 5 Geo. 5, c. 58 Criminal Justice Administration 100, 312, 375,
Act, l'.a4 405,432,435,
442, 446, 449,
483, 484, 526
4 & 5 Geo. 5, c. 87 Trading with Enemy Act, 1914 319
CONTENTS.
BOOK I.
GENERAL CONSIDERATIONS.
CHAPTER I. PAGB
The Nature of a Crime ... . . 1
CHAPTER II.
The Purpose op Criminal Punishment ... 26
CHAPTER III.
The Mental Element in Crime 37
CHAPTER [V.
Exemptions from Responsibility . . . . 49
Infancy, 49 — Insanity, 51 — Intoxication, 59 — Corpora-
tions, 62 — Mistake, 65 — Compulsion, 70.
CHAPTER Y.
Inchoate Crimes ........ 79
Incitement, 79 — Conspiracy, 80 — Attempts, 80.
CHAPTER VI.
The Possible Parties to a Crime .... 83
CHAPTER VII.
The Classification of Crimes . . . . , 91
XXVlll
Contents
BOOK 11.
DEFINITIONS OF PARTICULAR CRIMES.
CHAPTER VIII. PAOB
Innocent Homicides ... ... 101
Justifiable, 103— Excusable, 105.
CHAPTER [X.
Felonious Homicides 112
Suicide, 112— Manslaughter, 115— Murder. 124
CHAPTER X.
Otuer Offences against the Person . . 143
Wouudiug, 144 — Assaults, 151.
CHAPTER XI.
Arson and other Malicious Injuries to Property . IGl
CHAPTER XII.
Burglary and Housebreaking 170
CHAPTER XIII.
Larceny ......... 181
Taking, 183 — Carrying away, 187 — Appropriation by
bailee, 187 — Ownership, 192 — Subject-matter, 197—
Value, 200— Claim of right, 203— Intent, 210—
Aggravated larceny, 219 — Quasi-larcenies, 221 — Resti-
tution of possession, 222.
CHAPTER XIV.
Embezzlement ........ 228
CHAPTER XV.
False Pretences 240
False Pretences, 240 — Receiving of stolen property, 252.
CHAPTER XVL
Forgery 254
Contents xxix
CHAPTER XVII. PAGE
Offences against the safety op the State . , 264
High treason, 264 — Treason-felony, 274 — Misprision of
treason, 277 — Praemunire, 278 — Ofiences against the
public peace, 280.
CHAPTER XVIII.
Conspiracy 287
CHAPTER XIX.
Perjury ......... 293
CHAPTER XX.
Bigamy 300
CHAPTER XXI.
Libel .... ..... 307
CHAPTER XXII.
Offences against International Law . . . 315
Ambassadors, 315 — Piracy, 315 — Foreign Enlistment, 317.
CHAPTER XXIII.
Offences of Vagrancy 320
BOOK III.
MODES OF JUDICIAL PROOF.
CHAPTER XXIV.
Presumptions ajjd Evidence 324
Praesumptiones juris, 326 — Evidence, direct and circum-
stantial, 331.
CHAPTER XXV.
The General Rules of Evidence .... 340
Burden of proof, 343 — Mode of giving evidence, 346 —
Leading questions, 349 — Relevancy, 352 — Best evidence,
359 — Hearsay evidence, 363 — Competency, 374 — Privi-
lege, 376 — Proof of documents, 378i
XXX Contents
CHAPTER XXVI. page
Rules op Evidence peculiar to Criminal Law . 381
Miuiimim of proof, 381 — Hearsay, 388 — Good Character,
390— Confessions, 393— Competency, 399— Stamps, 406
— Foreign evidence, 407.
BOOK IV.
CRIMINAL PROCEDURE.
CHAPTER XXVII.
Limitations on Criminal Jurisdiction . . , 409
By Time, 409— by Territory, 411.
CHAPTER XXVIIL
Criminal Courts 415
House of Lords, 415 — Lord lligli Steward's Court, 418 —
Court of Criminal Appeal {by Act of 1907) 419 — King's
Bench Division, 421 — Assize Courts, 423 — Quarter
Sessions, 424 — Coroner's Court, 426 — Petty Sessions,
426.
CHAPTER XXIX.
Summary Procedure . . . . . 428
Time and place, 428 — Civil jurisdiction, 430 — Criminal
jurisdiction, 431 — In some indictable crimes, 433 —
Appeals, 436.
CHAPTER XXX.
Ordinary Procedure I. ..... ^ 439
Information, 440 — Arrest, 441 — Commitment, 446.
CHAPTER XXXL
Ordinary Procedure II, ..... . 453
Prosecution and Indictment, 453 — Arraignment, 466 —
Plea and issue, 460 — Trial and Verdict, 471 — Judgment,
481 — Appeals, 489 — Reprieve or Pardon, 494 — The
social results, 496.
CHAPTER XXXIL
The Problems op Punishment ..... 499
CHAPTER XXX in.
Coming Changes 513
Notes .......... 517
Index ......... 527
OUTLINES OF CKIMINAL LAW.
BOOK I.
GENERAL CONSIDERATIONS.
CHAPTER I.
THE NATURE OF A CRIME.
Throughout more than thirty years' experience as an
academical lecturer upon various legal subjects, I have found
that criminal law is usually regarded, both by its students
and by its teachers, as one of the most attractive portions of
their work. It has of course a great practical importance ;
on account of the large number of our criminal tribunals
and, consequently, of the persons who have to take part in
their administration. For to young counsel and solicitors
these criminal courts offer the readiest access to professional
employment and thus to experience, instructive if not lucra-
tive, in the practical details of advocacy. And even persons
who have no professional interest in legal matters often find
themselves engaged, as jurymen or Justices of the Peace, in
discharging public duties in which a knowledge of the
criminal law is of great assistance to them. Again, without
any such call either of public duty or of professional activity,
the plainest private citizen may easily have direct personal
cause to realise the value of this kind of knowledge. For
K. 1
2 Crimwal Law [ch.
our civilisation is not yet so perfect that a man can be sure
that even the most prudent administration of his affairs will
save him from having to invoke the protection of the
criminal law, or that even the highest moral rectitude will
remove all risk of his having to defend himself against
groundless and malicious criminal accusations. But there
are also other causes, less utilitarian than any of these, which
nevertheless play a still greater part in giving the criminal
portion of our law that special attractiveness which it un-
questionably has, not only for professional students but even
for ordinary readers. For this branch of study is rendered
attractive to all thoughtful men by its direct bearing on the
most urgent social difficulties of our time and on the deepest
ethical problems of all times. And almost all men, whether
thoughtful or thoughtless, are fascinated by its dramatic
character — the vivid and \dolent nature of the events which
criminal courts notice and repress, as well as of those by
which they effect the repression. Forcible interferences
with property and liberty, with person and Kfe, are the
causes which bring criminal law into operation ; and its
operations are themselves directed to the infliction of similar
acts of seizure, suffering, and slaughter. The utmost violence
which administrators of civil justice have power to inflict
ranks only amongst the gentlest of those penalties by which
the criminal courts do their work. Hence of all branches of
legal study there is no other which stirs men's imaginations
and sympathies so readily and so deeply.
The interest thus aroused tends naturally to facilitate the
progress of law students through the difficulties of this
subject; and has done much to produce the impression,
which happily prevails in the minds of most of them, that
this branch of their work is peculiarly easy. That impression
is erroneous; though no doubt, the beginner may acquire
such a knowledge of criminal law as suffices for ordinary
needs, either of examination or of everyday practice, without
i] Definition of Crime 3
having to face so many points of intrinsic difficulty as he
will usually find it necessary to master, whether for practice
or for exaujination, in any other leading branch of our law.
But there is one grave — if not indeed insoluble — difficulty
which has to be faced in studying the law of crime. And
this difficulty unhappily comes at the very outset of the
subject. For it consists of the fundamental problem — What
is a Crime? Clearly the criminal law is concerned with
criuies_alone, not wth illegal acts in general. But how are
we to distinguish those breaches of law which are crimes
from those which are merely illegal without being criminal ?
Many attempts have been made to answer this question,
and to propound a general definition of crime which shall
distinguish wrongs which are criminal from those which are
merely "civil." Moreover, as the distinction between criminal
and non-criminal law is not peculiar to England but is
familiar in every civilised country, attempts have naturally
been made to go a step further, and to look for such a
definition of crime as will express this difference in a form
so general as to be applicable, not merely to England, but to
all countries in which this world-wide distinction between
criminal and civil prevails.
In attempting, whether for this general purpose or merely
with reference to English law, to frame a definition of crime
which shall separate the illegal acts that are criminal from
those which must be treated in another branch of the law of
wrongs, the first course which naturally occurs to us is to see
if some distinctive peculiarity, \vhich may serve as a basis
for our definition, can be found in the very nature of the
criminal act itself.
(1) This was a course adopted by Sir William Blackstone
when writing the great classical text-book of English law.
The fourth volume of his Commentaries on the Laws of England
is devoted to " Public Wrongs," or crimes ; and his definition
1 See Salmoud's Jurisprudence, td. 1907, § 27.
1—2
4 BJacIcstone's drfinltions [ch.
of a pul)lic wrong is given at the outset of it, though in two
somewhat dissimilar forms. Of these the first is, "an act
committed or omitted in violation of a public Unu forbidding
or commanding it'." This answer, however, only drives us to
the further question, What is meant by "public" law? That
phrase has several well-accepted senses, but none of thera
seems applicable here. For if, with Austin^ we take public
to be identical with constitutional law, then Blackstone's
definition will cover political offences alone, though they are
only an extremely small portion of the whole field of crime.
If again, with the Germans, we take public law to include,
along Avith constitutional law, criminal law itself^, the defini-
tion ceases to define. And if, finally, we adopt the only other
familiar sense, and consider public law as equivalent to what
is now more commonly called 'positive law' or 'municipal
law' — that is to say, all law which has been made by the
public authorities of a State* — the definition will obviously
become too wide ; for it will cover every legal wrong.
(2) We must therefore pass to Blackstone's next defini-
tion. According to this, a crime is " a violation of the public
:jItm^ rights and duties due to the whole community, considered
as a community^" Blackstone, of course, does not intend to
suggest by this that crimes violate no other rights besides
public ones ; for obviously every theft violates some private
right of property. What he meant is expressed more clearly
in the form given to this definition by Serjeant Stephen in
editing, or rather reconstructing, the Commentaries : — " A
crime is a violation of a right, considered in reference to the
evil tendency of such violation as regards the community at
large." It may be remarked, in passing, that this form of
words introduces a new error, by limiting crimes to violations
"of rights"; whereas, as Blackstone had correctly pointed
' 4 Bl. Comin. 5. * Jurisprudence, Lecture xliv., p. 770.
K Hollaud, Jurisprudence, ch. ix., ch, xvi. * Ausliu, pp. 781, 787.
i] Judicia publica 5
out, a crime may be a violation either of a right or of a
duty. For one remarkable difference between criminal and
"civil" (i.eT^oii-criminal) law lies, as we shall subsequently
see, in the fact that breaches of the latter always involve an
iniringenient of some definite person's right, whilst the
criminal law makes it our duty to abstain from various
objectionable acts although no particular person's rights
would be invaded by our doing them. Instances of crimes
which do not violate any one's right may be found in the
offences of engraving upon any metal plate (even when it is
your own) the words of a bank-note, without lawful excuse
for so doing'; or of being found in possession of house-breaking
tools by night* ; or of keeping a live Colorado beetle'.
The idea which Blackstone and Stephen are here attempt-
ing to embody is one of great importance, if only on account
of the wide currency it has obtained ; and it deserves a very
close scrutiny. Crimes, according to this idea, are such
breaches of law as injure the community. Now there can
be no doubt that if we make a merely general contrast
between crimes, taken as a mass, and the remaining forms of
illegal conduct, taken similarly as a mass, the amount of
harm produced by the former group will be much greater
and much more widespread than that produced by the
latter. This fact was observed even so early as in the days
of the Roman Empire. Roman jurists who noted this
specially strong tendency of crimes to injure the public,
supposed it to be the reason why their forefathers had called
crimes "delicta publica" and criminal trials "judicia joa6^ica."
As a matter of actual history, those phrases were not sug-
gested originally by this; nor even, as Justinian fancied
(Inst. 4. 18. 1), by the rule that any member of the public
can prosecute a criminal ; but by the fact that in early Rome
all charges of crimes were tried by the public itseli, i.e., by
1 Forgery Act, 1913, s. 9 (c). 2 24 and 25 Vict. c. 98, s. 58.
a 40 and 41 Vict. c. G8.
6 Civil lorongs injurious [ch.
the whole Roman people assembled in comitia centuriata.
Long after this form of trial had become obsolete, and the
origin of the epithet consequently obscure, crimes still con-
tinned to be railed "public." And the phrase did not end
with the Uoiuau law; but, as we have seen, plays a prominent
part in the classifications and the definitions of our own
Blackstone. Its survival was doubtless due to the recog-
nition of the unmistakable public mischief which most
crimes produce. Were only a rough general description to
be attempted, this public mischief ought undoubtedly to be
made the salient feature. But can we accept it as sufficient
foundation for the precise accuracy necessary in a formal
definition ? Such a definition must give us "the whole thing
and the sole thing"; telling us something that shall be true
of every crime, and yet not true of any conceivable non-
criminal breach of law. Clearly then we cannot define ci-imes
by mere help of the vague fact that " they usually injure the
community." For every illegal act whatever, even a mere
breach of contract, must be injurious to the community, by
causing it alarm at least, if not in other ways also. Indeed
had not this been the case, the community would not have
taken the trouble to legislate against the act. Moreover we
cannot even make the question one of degree, and say that
crimes are always more injurious to the community than
civil wrongs are. For it is easy to find instances to the
contrary. Thus, until 9 Geo. I. c. 22, English law made it no
crime to kill another person's horses, though it was a crime
to steal them; yet the former wrong, since it involved the
actual destruction of wealth, was obviously the more injurious
to the community.
Similarly, even at the present day, it is possible that,
without committing au}^ crime at all, a man may by a breach
of trust, or by negligent mismanagement of a Company's
affaii-s, bring about a calamity incomparably more widesj)read
and mure severe than that produced by stealing a cotton
i] Penal Actions 7
pocket handkerchief, though that petty theft is a felonioua
crime. Indeed a person's conduct may amount to a crime
even though, instead of being an evil to the community, it is,
on the whole, a benefit ; as where a defendant was held guilty
of the offence of a common nuisance, because he had erected
in Cowes Harbour a sloping causeway which to some extent
hindered navigation, though by facilitating the landing of
passengers and goods it produced advantages which were
considered by the jury to more than counterbalance that
hindrance*.
Hence we cannot say, with anything like that unvarying
precision which a definition requires, that a legal wrong is a
crime if it tends to cause evil to the community. Nay, it
does not necessarily become a crime even when this public
evil tendency is expressly recognised by law, and made the
sole ground for legally prohibiting the hurtful conduct. For
there exists a well-known class of proceedings called "penal
actions," by which pecuniary penalties can be recovered
— in some cases^ by any person who will sue for them — from
the doers of various prohibited acts ; these acts being thus
prohibited, and visited with penalties, solely on account
of their tendency to cause evil to the community at large,
" considered as a community." For example, a person who,
in advertising a reward for the return of lost property, adds
that "no questions will be asked," incurs by the Larceny Act
a penalty of £50 recoverable by anyone who will sue for
it^ In like manner, the County Courts Act 1888 provides
that if any ofiicer of a county court shall act as a solicitor in
any suit in that court, he shall be liable to a penalty of £50*
similarly recoverable. Yet the litigation by which an in-
former enforces such a penalty against a wrong-doer is not
1 Bex V. Ward, 4 Ad. and E. 384.
" Styled '• Popular " actions. In 1912 an informer sued Sir S. Samuel, M.P.
for £46,500 as penalties.
3 24 and 25 Vict. c. 96, s. 102. See L. R. [1901] 2 K. B. 564.
■1 51 and 52 Vict. c. 43, s. 41.
8 Twjritude of crimes [ch.
treated by English law as a criminal, but as a "civil," pro-
ceeding ; and the wrong-doing itself is not regarded aa a
crime'. This anomalous method of checking ill-doing has
long been discredited ; but in the early part of the nineteenth
century it was so jxjpular with Parliament that every session
saw new instances of it enacted*.
Hence to speak of crimes as those forms of legal wrong
which are regarded by the law as being especially injurious
to the public at large, may be an instructive general de-
scription of them, but is not an accurate definition.
(3) The same may be said of a way of distinguishing
them which is often adopted in the course of political dis-
cussions, and which probably is the one that most naturally
suggests itself to an ordinary man's mind — the limitation of
the idea of crime to those legal wrongs which violently offend
our moral feelings. Here again, however, we only find a
rough test ; it holds of grave' crimes in the mass, as con-
trasted with civil wrongs in the mass, but breaks down when
we come to apply it with the universality of a definition. It
is in recognition of the fact that many crimes involve little
or no ethical blame that Natal and West Australia, when
recently prohibiting the immigration of convicted criminals,
limited the prohibition to those whose offences "involved
moral tui-pitude." Thus, for example, Treason is legally the
gravest of all crimes, yet often, as Sir Walter Scott says,
remembering Flora Macdonald and George Washington, " it
arises from mistaken virtue, and therefore, however highly
criminal, cannot be considered disgraceful"; — a view which
has received even legislative approval, in the exclusion of
treason and other political offences from international arrange-
ments for extradition. Again, to take a very different
1 Atchcson V. Evcrilt, 1 Cowp. H8'2 (K. S. 0. 4).
- It is still popular in the legislatures of the United States.
' E.g., of nearly all indictable offences, but not of more than a tenth of
the petty offences that are punished summarily.
i] Criminal Procedure 9
example, the mere omission to keep a highway in repair shocks
nobody, but it is a crime; whilst many grossly cruel and
fraudulent breaches of trust are mere civil wrongs. Conduct
may, of course, be grossly wicked and yet be no breach of law
at all. A man who should callously stand by and watch
a child drowning in a shallow trough, would arouse universal
indignation ; but he would have committed neither a criminal
nor even a civil wrong.
This failure of the most approved tests of criminality that
are based on the nature or natural consequences of the
criminal acts themselves, may lead us to suspect that there
exists no intrinsic distinction between those acts which are
crimes and those which are not. It may nevertheless be
possible to trace some extrinsic one. For there may be some
unmistakable difference between the respective legal conse-
quences of these two classes of acts. It would, indeed, be
purely technical ; amounting merely to a distinction between
criminal procedure and civil procedure. But it would at any
rate enable us to distinguish between these two, and then to
define a crime as being " an act which gives rise to that kind
of procedure which is styled criminal."
(4) Some writers have laid stress upon a difference
between the respective degrees of activity manifested by the
State in the two cases. In "civil" matters, say they, the State
does not interpose until actual wrong has been done; and,
even then, it does not interpose unless some private person
institutes litigation ; and no person is allowed to institute it
except the one who has been directly injured by the wrong.
In criminal matters, on the other hand, every civilised State
maintains an elaborate staff of police officials charged with
the duty of taking antecedent precautions to prevent offences
from being committed ; and, if one be committed, a prosecution
may always be — indeed in many countries, it can only be* —
^ Thus in France the Code d'Instruction Criminelle provides (Art. i.)
that " L'action pour Tapplieation des peiues n'appartient qu'aux fonction-
10 Criminal Procedure [ch.
instituted by public functionaries, without any cooperation
on the part of the person injured ; and possibly the law may
(as in England it does) give every person in the community,
whether injured or not, a right to institute a prosecution.
This contrast is a genuine and a vivid one ; and the tendency
of modem criminal legislation is to intensify it. Yet it can-
not be applied with such unvarying precision as to afford the
basis for a definition. For, on the one hand, civil proceedings
are often taken in order to obtain an "injunction" against
some anticipated wrong which has not yet been actually com-
mitted ; and, on the other, many offences that are undeniably
criminal are so trivial that the police would not interfere
beforehand to prevent them. Again, there are some few
crimes for which, even in English law, a prosecution cannot
be initiated by any private person, even though it be the
victim himself, except by direct permission from the State^;
whilst, as we have seen, those " penal actions " which may be
instituted by any private person who chooses to turn informer,
are classed amongst civil proceedings. And the flict that there
exist many private local "Associations for the Prosecution of
Felons" serves at least to shew that, from a practical point
of view, the activity of the State in initiating criminal pro-
secutions still leaves much to be desired.
(5) It might, again, be expected that the two procedures
could be distinguished by a difference in the tribunals in
which they are employed. But this is not so ; for as we shall
hereafter see, it often happens, alike in the case of the hum-
blest and of the most dignified tribunals, that both criminal
and civil proceedings may be taken in the same court.
(6) But between the two kinds of proceedings themselves
various points of contrast have been remarked. It is evident,
naires." In Scotland, though it is theoretically possible for an injured
person to prosecute, such private prosecutiona, except in mere petty com-
plaints, are obsolete. Coats v. Broion (Sessions Cases, 1909, p. 20) was the
first for four huuilrt.-d years past.
' E.g., the criiues spe'-ilJed in the Vexatious Indictments Act ; see p. -105.
i] Punishment and Redress 11
for instance, that the object of criminal procedure always is
Punishment ; the convicted offender is made to undergo evil
which is inflicted on him not for the sake of redress but for
the sake of example. The infliction does not provide com-
pensation to the person who has been injured by the crime,
but is simply a warning — a document am, as the Roman law-
yers called it — to persons in general not to cause such injuries.
In civil proceedings, on the other hand, the order which is
made against an unsuccessful defendant is usually concerned
with no interests but those of the parties to the litigation;
the defendant is forbidden to infringe the plaintiff's rights, or
still more frequently, is directed to pay him a sum of money
in reparation of some right which he already has actually
infringed. In assessing that sum of money, the tribunal will
usually be guided by the amount of loss the plaintiff has
sustained through the wrong, without considering whether or
not that amount is large enough to render the pa^nnent of it
so inconvenient to the defendant as to be a lesson to him.
Even where the wrong complained of is an adultery, the
damages given to the injured husband must (it is now settled)
be no greater against an adulterer who is rich than they
would be were he poor\ And even in those cases where civil
proceedings result, not in a pajnuent of money, but in the
defendant's being sent to prison, a similar distinction is trace-
able. For he will be set free as soon as he is willing to do
what the court has ordered; civil imprisonment being only
" coercive," and not, like criminal imprisonment, " punitive."
At first sight, therefore, it may seem to be quite easy to
distinguish civil proceedings from criminal ones, by sa^dng
that punishment is always the aim of the latter but never
the aim of the former. But when we take a more compre-
hensive view of civil Htigation, we find that there are cases
in which a part of its object — and indeed others in which the
^ L. B. 11 P. D. 100. Divorce proceedings, like those in Bankruptcy, are
civil, despite the gravity both of their causes and of their results; L. R., 2 P.
& M. at p. 141.
12 Criminal Sanctions [oh.
whole of its object — is to puiiish. Thus there is a large class
of ordinary civil cases, in which " exemplary " damages are
permitted '. Where, for example, a plaintiff has been assaulted
yy or slandered or defrauded, the jury need not limit the damages
A to such an amount as suffices to make good his loss; they
may also take into account the degree of violence or oppressive-
ness or malice of which the defendant has been guilty, and give
more liberal damages in retribution of it. Thus in a case of
assault, as much as £500 damages have been given for knock-
ing i>tf a man's hat, and a higher court has refused to treat
the amount as excessive-. Moreover that peculiar class of
proceedings called penal actions belong, as we have seen, to
civil procedure ; and yet they exist solely for the purpose of
inflicting punishment. When in such an action, an informer
recovers a penalty from some one who — for instance — has
opened a place of amusement on a Sunday, the money is not
exacted because the informer has suffered by the wrong-doing,
but only because the community desires to prevent such
wrong-doings from being repeated. The law inflicts these
penalties from precisely the same motive which leads it to
send thieves to gaol or murderers to the gallows. We are
brought, then, to the conclusion that, whilst punishment is
admittedly the object of all criminal proceedings, it sometimes
is the object of civil ones also. If the aim of the legislature,
in creating any particular form of litigation, clearly was to
punish, this raises a strong probability that the litigation
ought to be treated as a criminal proceeding. But it gives
us a probability only ; and not that positive certainty which
a dorinition requires.
(7) If, however, we pass from the purpose with which (in
either case) the unsuccessful defendant is made to undergo
some evil, or "sanction," to the differences perceptible between
the respective sanctions themselves, a more plausible ground
* Pollock on Torts, lik. i. ch. 6. * Cited m 6 Taunton 442.
i] Remission by Sovereign 13
of distinction is reached. For it may be said that, on the
one hand, all civil sanctions, even those of penal actions,
directly enrich some individual (whether by awarding him
money or by securing him the specific performance of some
act to which he has a right); whilst criminal sanctions inflict
a loss or suffering that never enriches any individual — though
occasionally, as in the cases of fines or confiscations, it may
enrich the State. This is almost precisely true, but not
quite. For in " penal actions," unless the statute expressly
authorises private persons to act as informers, the State
alone can sue and recover the penalty ; and yet there is
full authority for ranking such suits by it as merely civil
proceedings^ And, conversely, mere civil actions for debt
used, in former days, often to end not in enriching the
plaintiff, but merely in imprisoning the debtor; for if the
defendant had no property out of which the amount for
which judgment had been given could be realised, he himself
could generally be seized in execution. And even now,
although the Debtors' Act 1869'' has aboHshed the old
matter-of-course imprisonment for debt, yet even under it
(sec. 5), if the non-payment of a judgment debt is wilful, the
debtor may be committed to prison. Many thousands of such
orders of commitment are made every year. Such imprison-
ment of course is, as we have seen, not punitive but only
coercive; for the debtor will be at once released if he con-
sents to pay what he owes.
(8) But a real and salient difference between civil and
criminal proceedings may be discovered, if we look at the
respective degrees of control exercised over them by the
Sovereign ; not so much in respect (as we have already said)
of their commencement as of their termination. Austin^ has
^ See Rex v. Hausmann, 3 Cr. App. R. 3; Att. Gen. v. Bradlaiigh,
L. R. 14 Q. B. D. 667 (K. S. C. 7) ; Att. Gen. v. Bowman, 2 B. ami P. 632.
2 32 aud 33 Vict. c. 62.
* Lectures on Jurisprudence, Lect. xxvii.
u
Remission bi/ Sovereign
[CH.
established that the distinctive attribute of criminal pro-
cedure, in all countries, lies really in the fact that " its
sjxnctions are enforced at the discretion of the Sovereign."
This does not mean that the Sovereign's permission must be
obtained before any criminal proceedings can be taken, but
that he can at any time interfere so as to prevent those
proceedings from being continued, and can even grant a
pardon which will release an offender from all possibility of
punishment. Thus the " sanctions," the punishments, of
criminal procedure are always remissible by the Crown.
Moreover they are not remissible by any piivate person.
Such a person may be the sole victim of the crime, he may
even have taken the trouble to commence a prosecution for
it, yet these facts will not give him any power of final control
over the proceedings ; and no settlement which he may make
with the accused offenders will afford the latter any legal
immunity. The prosecution which has been thus settled and
abandoned by him may at any subsequent time, however
remote, be taken up again by the Attorney General or even
by any private person. Thus in Rex v. Wood^ a man had
begun a prosecution against the keeper of a gaming house,
and employed a particular solicitor to conduct the proceed-
ings. He afterwards changed his lawyer ; and subsequently
arranged matters with the defendant and dropped the prose-
cution. Thereupon the original solicitor took it up, and
brought it to trial. The former prosecutor protested against
this activity, but in vain ; the Court of King's Bench insisted
that the case must proceed. All this is in striking contrast
to the rules of civil procedure, where the party injured usually
has an absolute legal power of settling the matter and of
remitting the sanction, alike before he has commenced pro-
ceedings and after he has commenced them ; whilst the
Sovereign, on the other hand, has usually no power to inter-
» 3 B. and Ad. 657. Cf. Smith v. Dear, 88 L. T. 6Gi.
i] Limits of Remission 15
fere, and no pardon granted by him could relieve the offender
from his liability to make redress to the injured person.
Austin here has suggested a true principle of demarca-
tion ; (though, to avoid including actions for recovery of the
Crown's debts or other civil rights, we should add that all
criminal sanctions " a re impo sed_with a punitive purpose ").
But he suggested it only in general terms ; so that, for any
particular system of criminal law, some difficulty may arise
in expressing it with the completeness locally necessary.
Thus in English law two exceptional rules must not be
overlooked. One is that the Crown's power of pardon, |
though nearly universal, is not absolutely so {infra, p. 495j.
For by the common law a public nuisance, whilst still
unabated, cannot be pardoned ; and by the Habeas Corpus
Act, another oifence, that of sending a man to prison outside
England, is also made unpardonable, lest politicians ob-
noxious to the Crown should be kidnapped by Crown servants
with impunity. Accordingly the punishment of these two
offences is not remissible ; (except, of course, by passing a
special Act of Parliament, an anomalous interference with
the rules of law such as would equally suffice to remit any
non-criminal sanction). We must therefore modify Austin,
and not say more than that "crimes are wrongs whose V,
sanction is punitive, and is remissible by the Crown, if '
remissible at all." The other qualification in English law
arises from the anomalous character of those penal actions
which in this country complicate so artificially the natural
boundary between criminal and civil law. Were it not for
them, it would be sufficient to say simply, with Austin, that
the sanctions of civil procedure are always remissible by the
party suing and are never remissible by the Crown (unless it
be itself that party). But penal actions have long ceased to
be remissible quite freely by the party suing; for 18 Eliz.
c. 5 requires him to obtain leave from the court before
compromising the action. Moreover they have always
16 Forms of lUigathn \cb..
been to some extent remissible by the Crown ; for, even at
common law, the Crown always had power to give a valid
'F pardon before any informer had commenced an actual suit
(though not after he had commenced one and so secured
himself a vested interest in the penalty). And under some
statutes, like the Lord's Day Act 1875, the power is not
terminated even by a suit being brought\ Hence, to allow
for the peculiarities of this form of civil procedure, we must
modify Austin's account of civil wrongs, and say only that
a wrong is civil if any power of remitting its sanction can be
exercised, whether freely or even under restrictions, by any
private person. The Crown may, as we have seen, though
only in one rare and peculiar class of cases, have the power of
remitting a civil sanction. But no private pers o^_can ever
grant a valid remissioji_of any criminal sanction. Herein
lies the only ultimate and unvarying distinction between the
two kinds of procedure (though, as we have seen, the familiar
everyday instances of both are characterised by other and
more conspicuous, though less essential, distinctions). For
the judicial proceedings taken against a wrong-doer may
produce a variety of results. There may be : —
1. Civil proceedings producing merely restitution or
compensatory damages. Plaintitf is out of pocket by paying
his owTi costs.
2. Civil proceedings producing efficient redress {i.e. both
damages and also costs). A " documentum' " to defendant ;
but plaintiff is not enriched.
3. Civil proceedings producing exemplary damages. A
documcntum to defendant, and an actual protit to piaintiff.
4. Civil proceedings in which an iniurnier receives or
* See for instance the eflect of 38 and 39 Vict. o. 80 in extending the
Crown's jjowcr of pardoning offences comnntteJ against Bishop Porteus' Act
(21 Geo. III. c. 49) vhich restrains the holding of conceits and other public
entertainments on Sunday.
' Supra, p. 11.
i] Judicial test of criminality 17
shares the penalty. A documentum to defendant, and an
actual profit to plaintifi".
5. Civil proceedings in which the Crown receives all
the penalty \ A documentum to defendant, but a profit to
the State alone.
6. Criminal proceedings. A documentum to the de-
fendant ; either a profit to the State alone, or, more usually,
no profit even to it.
In recent years the question as to the dividing line
between civil and criminal proceedings has assumed great
practical importance, and has occupied the attention of the
English courts with unusual frequency. For many contro-
versies have arisen under the Judicature Act 1873, which
when creating a general Court of Appeal for civil cases, still
retained (by s. 47) the rule that " No appeal shall lie from
the High Court in any criminal cause or matter "
In dealing with these cases, the courts have recognised
that a charge may be criminal even though it be too trivial
to be tried by a jury or visited with imprisonment. Thus i^s I
a "^rime^^notio^end your^cM to^chooP; though it cannot V-
be prosecuted in any higher tribunal than applice-magis- f
trate^sTandthe utmost possible punishment for, it is^ a fine^of / X
a^sovereign. Similarly they have recognised that conduct'
may be" criminal without involving any moral turpitude ; as
where a limited company omits to send to the Registrar of
Joint Stock Companies the annual list of its members'.
Up to the present time, they have found it a practi-
cally sufficient test to inquire whether the object of the
proceedings is punitive or not. They regard any proceed-
ings as " criminal " which may terminate in the infliction of
1 These are now decided to be civil ; and even when the penalty is en-
forceable by imprisonment, if it be a Coercive— not a Punitive — one. See
p. 13 u. (1), supra.
2 Mellor V. Denham, L. R. 5 Q. B. D. 467.
3 25 and 2G Vict. o. 89, s. 26. Cf. Eobson v. Biggar, L. E. [1908] 1 E. B.
672.
K. 2
^
18 Api^eals of Felony [ch.
a Punishment; even though it be merely a pecuniary line,
and even though this fine be not inevitable but only alterna-
tive, e.g. where the defendant might either have been ordered
to pay a fine or to abate the nuisance complained of, and in
fact only the abatement was ordered, so that no fine was
imposed^ For proceedings which are not punitive cannot
{supra, p. 11) be criminal, and proceedings which are civil
are very seldom punitive; so that in the vast majority of
cases this simple test, pnnitiveness or nonpunitiveness, will
answer the question as to who has the legal power of remit-
ting the sanction". But it is upon this last and fundamental
question that, as we saw (p. 14), the criminal or civil character
of the proceedings finally depends.
Inasmuch as the difference between crimes and civil
injuries does not consist of any intrinsic difference in the
nature of the wrongful acts themselves, but only in the legal
proceedings which are taken upon them, the same injury
may be both civil and criminal ; for the law may allow both
forms of procedure if it like. And, in this very way, the
distinction between civil wrongs and crimes was formerly
much obscured in England, when our civil courts were
allowed to try " Appeals of Felony^" The sole object of
such a proceeding was to inflict capital punishment upon
a man guilty of heinous crime. Yet the proceeding was
taken in a civil court ; and was conducted by civil rules of
procedure, (the accused, for example, being defended by
counsel, who would not have been allowed to him in a
1 Reg. V. Whitchurch, L. R. 7 Q. B. 0. 534. As a Punitive imprisoniiient
may always be ordered [infra, p. 432) in default, even non-wilful default, of
payment of any punitive fine, the essential mark of Crime is often spoken
of as being liability (either immediate or on default) — not to Punishment, in
general, but — to a Punitive imprisonment.
" E.g. if a commitment for contempt of court was meant to be a
punitive one, the Sovereign (or similarly a colonial governor noting on
his behalf) can release the offender. Moscley's Case, L. R. [1893] A. C. 138.
2 4 Blackstone 308. 'Appeal' here means merely 'summons,' and has
no connexion with the modern idea of ' appealing ' from a lower court.
i] Crimes that are not Torts 19
criminal court) ; and, whilst it might be compromised by the
plaintiff, it could uot be defeated by any pardon from the
Crown. This anomalous remedy was not formally abolished
until 1819 ; and in 1818 in the case of Ashford v, Thurnton\
an accuser actually instituted an " Appeal." Even then the
abolition was resisted by some of the most progressive
politicians ; on the ground that such proceedings afforded the
only sure means by which over-zealous soldiers or constables,
who had acted with an illegal excess of violence, could be
brought to punishment without the possibility of their being
shielded by the Cro^vn. From this point of view, no less
eminent a judge than Lord Holt had eulogised Appeals as
"a true badge of English liberty."
But, though Appeals have been abolished, it still remains
possible that the same Avrongful act may be followed up by
both civil and criminal proceedings. For almost every crime
admits of being treated as a " tort," i.e. as a civil injury, so
that the person \vronged by it can sue the wrong-doer for
pecuniary compensation. Blackstone even goes so far as to ^
say, universally, that eveiy crime is thus also a private
injury"; but of course this cannot be the case with those
ofi'ences which do not happen to injure any particular private
individual. Of such offences there are three groups. There
are the cases in which a crime affects the State alone, as
where a man publishes a seditious libel or enlists recruits for
the service of some foreign belligerent. Again, there are the
cases in which, though the crime is aimed against a private
individual, its course is checked before it has reached the
point of doing any actual harm; as where an intending forger
is charged only with " having in his possession a block for
the purpose of forging a trade-mark," or with possessing
bank-note paper without lawful excuse, or witTi eiigraving a
bank-note plate without lawful excuse. And, thirdly, there
are cases in which, though a private individual does actuallj'
1 1 B. and Aid. 423. « 4 lil. Comm. 6.
20 Crimes that are Torts [oh.
suffer Jby the offence, yet this sufferer is no other than the
actual criminal (who, of course, cannot claim compensation
from himself) ; as in cases of attempted suicide, or of a man's
making a " forcible entry " into his own house, or (under
34 and 35 Vict. c. 108) of a tramp's " wilfully destroying "
his own clothes whilst receiving shelter in the casual ward of
a workhouse.
In, however, the vast majority of cases, he who commits
a crime docs thereby cause actual hurt to the person or
property of some other man ; and whenever this is so, the
crime is also a tort. But though most criminals are thus
liable to be sued, in civil proceedings, for pecuniary compen-
sation for the harm which they have done, such proceedings
are rarely brought; for most crimes are committed by
persons so poor that no compensation could be obtained
from them. Hence libel and assault, since they are the
crimes least unlikely to be committed by rich people, are the
only crimes for which a resort to civil proceedings is at all
common in practice; but they are very far from being (as
is sometimes hastily inferred) the only crimes where it is
possible. Thus a case occurred in Ireland, a few years ago,
in which the victim of a rape brought an action for damages
against her ravisher^ ; and, in like manner, the circumstances
which give rise to a prosecution for bigamy would often
support civil proceedings for the tort of Deceit. Criminal
wrongs and civil wrongs, then, are not sharply separated
groups of acts, but are often one and the same act as viewed
from different standpoints; the difference being one not of
nature but only of relation. To ask concerning any occur-
rence, " Is this a crime or is it a tort ? " is — to borrow
Sir James Stephen's apt illustration — no wiser than it would
be to ask concerning a man, " Is he a father or a brother ? "
For he may well be both.
If w^e know any particular occurrence to be a crime, it is
1 S. V. «., 16 Cox 566.
i] Archaic criminal law 21
easy — as we have seen — to ascertain whether or not it is also
a tort, by asking if it damages any assignable individual.
But there is no corresponding test whereby, when we know
an occurrence to be a tort, we can readily ascertain whether
or not it is also a crime. We cannot go beyond the rough
historical generalisation that Torts have been erected into
crimes whenever the law-making power had come to regard
the mere civil remedy for them as being inadequate. In-
adequate it may have been on account of their great
immorality, or of their great hurtfulness to the community,
or of the greatness of the temptation to commit them, or of
the likelihood of their being committed by persons too poor
to pay pecuniary damages. The easiness of the legal tran-
sition from tort to crime is vividly illustrated by the ancient
Norman custom of the " Clamour de Haro," still surviving in
our Channel Islands, by which a person who is suffering from
a tort may cause any further continuance of that tort to
become an actual crime, by merely uttering, in the wrong-
doer's presence, an archaic invocation of the protection of
Duke Rollo».
By a paradox, familiar to all readers of Sir Henry Maine's
Ancient Law, the codes of archaic civilisations may equally
well be described as utterly ignoring crime or as being
mainly occupied with it. For whilst the chief task of a
primitive lawgiver is to cope with those acts of serious
violence which mature civilisations repress by criminal pun-
ishment, yet his only means of coping with them is by
exacting the claims of the private individuals who have been
injured. The idea of repressing them by a further sanction,
imposed in the collective interests of the community, is not
reached until a late stage of legal development. The process
of evolution may sometimes be traced through successive
periods. In the earliest, the State recognizes the need for
* See M. Glasson's article on the Clameur, in La Grande EncyclopSdie.
22 Evolution of crimmal law [rn.
redress, but only as for a merely private wrong; and so
tlie amount of redress, and sometimes even the mode of
redress, are left to the discretion of the injured person or his
relatives. Even the Mosaic legislation left this primitive
Bedouin rule in force for every homicide that was wilful,
and bade the elders of the murderer's own city " fetch him
and deliver him into the hands of the Avenger of Blood "
(Deut. xix. 12). Even within the present century popular
sentiment in Corsica recognised these vendettas as per-
missible, if not even obligatory. A moderti (1899) traveller in
Abyssinia found the law of murder there to be, even yet,
that " the relations of the murdered man have the legal right
to put the murderer to death by whatever means he em-
ployed towards their kinsman ; or they may, if they prefer,
accept a money payment instead." A decided advance in
civilisation is made when the penalty of any given class of
crimes is specified and limited ; a fine of sheep or cattle, it
may be. The injured persons still retain the privilege of
exacting it, but it is all that they can exact. A good
instance is that law ascribed to Numa Pompilius which
mitigated in this way the vengeance for mere manslaughter :
" Si quis occidisset hominem, pro capite occisi agnatis ejus in
concione offeret arietem\" And, nearer home, a more familiar
jL instance may be found in the Anglo-Saxon _wer^gild^claim-
^ able by the kinsmen of a murdered man, and mcelypaduated
according to his status ; twelve hundred shillings for a thegn,
but only two hundred for a villein, and forty for a slave,
and less for a Welshman than for a Saxon 2. Later on,
again, it comes to be perceived that when one member
suffers the community suffer ; and hence that a compensatory
expiation is due not only to the victim and his kindred but
also to the State. So perhaps a fine is exacted on behalf
> Clark's Early Roman Law, 44 — 50.
2 Pollock anil Mailland's Ilht. Eiiij. Law, i. 26, n. 448, Maitland's
Domesday Book, p. 31. Of. Homer's ' blood-price ' ; Iliad ix. and xviii.
i] Evolution of criminal law 23
of the community, either in addition to or instead of the
private one ; and probably some person is specified who shall
exact it. The fourth and final stage of the process^is reached
when the State realises that her interest in the preservation
of order is so great that she must no longer remain content
with saying that those who violate order shall afterwards
make her a reparation ; she must now deter them by threats
from committing any such violation. The idea of a true
punishment is thus made to supersede all idea of compensa-
tion to the community. It overshadows even the idea of
compensation to the injured; though for some time the
consent of the injured may perhaps be thought necessary, at
the outset of prosecutions, to enable the public punishment
to take precedence of the private penalty or supersede it.
(Traces of that conception are traceable even now in our ovm.
English criminal courts when, in dealing with some slight )iL
offence, they mitigate the punishment "because the prose-
cutor does not press the case," or they even give him leave
to settle the matter and withdraw the prosecution.) A
good example of the introduction of true punishment is
afforded by the law, attributed to Numa Pompilius, which
punished murder : " Si quis hominem liberum dolo sciens
morti dedit, paricidas esto '\" But no additional example is
afforded by early Roman legislation, even when we come
down to the XII Tables; unless it be in the penalty of
retaliation for a " membrum ruptum," and even this was
perhaps regarded by the lawgivers rather as a source of
gratification to the party originally maimed, than as a
punishment by which the State sought to deter men from
maiming its citizens. In like manner, the English con-
querors of Ireland superseded the ancient fines for homicide
by the punishment of death. They pronounced those Brehon
fines to be " contrary both to God's law and man's " ; yet it
^ The stages of evolution are well illustrated in the Babylonian code of
Hammurabi; see Dr Johns' cheap and excellent translation.
^ Clark's Early Roman Law, loc. eit.
24 Evolution of criminaJ laiv [ch.
was only late in the twelfth century that such fines had been
superseded in their own England*. Punishments thus in-
stituted in the interests of the State would at first be
imposed by direct action of the State itself or its delegate ;
thus at Rome each sentence was pronounced by a special lex
of the great national assembly, the Comitia. As time went
on, the function of administering criminal justice would come
to be delegated to representatives. Sir Henry Maine'' has
shewn how, in the t}'pical case of Rome, the Comitia came to
delegate criminal cases, one by one, each to a special com-
mittee (quaestio), nominated for the particular occasion ; and
later on, to adopt the practice of appointing these quaestiones
for a period, with power to try all cases, of a given class, that
might arise during that time ; whilst, ultimately, they were
appointed permanently, as true forensic Courts.
Even in England the process of turning private wrongs
into public ones is not yet complete ; but goes forward year
by year, whenever any class of private wrong — or even of
acts that have never yet been treated as \vrongs at all —
comes to inspire the community ^vith new apprehension
either on account of its unusual frequency or of some new
discovery of its ill effects. Thus it was not until Hanoverian
reigns that the maiming or killing of another man's cattle,
or the burning of his standing com, were made crimes;
though they were wrongs as injurious to the owner as theft,
and to the community still more injurious than theft. It
was not until 1857 that it was made a crime for a trustee to
commit a breach of trust"; and not until 1868 that it was
made a crime for a partner to steal the partnership property*.
Every year sees Parliament create some new crime" ; though,
1 Pollock and Maitlanl, u. 458. » 20 and 21 Vict. c. 54.
2 Ancient Law, ch. x. * 31 and 32 Vict. c. 116.
6 Cf. the Prevention of Corruptiuu Act, lOOG, making criminal certain
acts of bribing commercial af,'ent8; the Musical Coi)yright Act, 1906; tlie
Public Health Act, 1907, s. 59, punishing any i^crson who, when he knows
be has an infectious disease, borrows a book from a public Ubiary; the
i] Evolution of criminal law 25
in most cases, of a character much more trivial than such
instances as those just now quoted. Probably the multipli-
cation of crimes would have gone on even more rapidly than
it has done, but for the fact that various forms of misconduct,
which otherwise would naturally have come to be restrained
by criminal prohibitions, were already under an adequate
deterrent sanction in the shape of some abnormal form of civil
proceedings, such as an action for " exemplary damages\" or,
again, for a penalty recoverable by the first informer I
Public Meeting Act, 1908, punishing any one who disturbs a public meeting
in order to prevent the transaction of its business. Industry itself may be
made a crime ; the Coal Mines Regulation Act, 1908, imposes a fine on any
coal-miner who remains underground, for the purpose of work, for more
than eight hours in one day.
1 Siqna, p. 12. 2 Supra, p. 7.
CHAPTER II.
THE PURPOSE OF CRIMINAL PUNISHMENT.
The inquiry will naturally suggest itself; Under what
circumstances does it become wise thus to issue a new
criminal prohibition ? All modem legislatures are constantly
being requested to pass enactments punishing some prevalent
practice which the petitioners consider to be injurious to the
community and which, whether from selfish or from philan-
thropic motives, they desire to see repressed. But Bentham'
has vividly shewn that a lawgiver is not justified in yielding
to such appeals merely because it is established that the
practice in question does really injure his subjects. Before
using threats of criminal penalties to suppress a noxious form
of conduct, the legislator should satisfy himself upon no fewer
than six points.
1. The objectionable practice should be productive not
merely of evils, but of evils so great as to counterbalance the
suffering, direct and indirect, which the infliction of criminal
punishment necessarily involves. Hence he will not make
a crime of mere Lying; unless it has caused a pecuniary
loss to the deceived person and thereby become aggravated
into Fraud.
2. It should admit of being defined with legal precision.
On this ground, such vices as ingratitude, or extravagance,
or gluttony (unlike drunkenness), do not admit of being
punished criminally.
1 Of. Bentham's Principles of Morals and Legislation, chap, sv.; and
his Principles of Penal Law, n. 1. 4.
CH. ii] Rules for criminal legislation 27
3. It should admit of being proved by cogent evidence.
The untrustworthiness of the only available evidence has
been one great cause of the reluctance of experienced legis-
lators to deal criminally with offences that are purely mental,
like heresy and conspiracy and the " compassing " of treason ;
and even with those which consist of merely oral utterances,
like slander.
4. Moreover this evidence should be such as can usually
be obtained without impairing the privacy and confidence
of domestic life. Hence in England, the criminal law does
not punish drunkenness, except when it is detected in a
" public place."
5. And even if an offence is found to satisfy all these
intrinsic conditions of illegality, the lawgiver should not
prohibit it, until he has ascertained to what extent it is
reprobated by the current feelings of the community. For,
on the one hand, that reprobation may be sufficiently severe
to remove all necessity for those more clumsy and costly
restraints which legal prohibition would impose; just as in
England at the present time, it is really by public sentiment,
and not by the unpopular Lord's Day Act of Charles II, that
our habitual abstinence from trade and labour on Sundays is
secured. Or, on the other hand, — as has sometimes been
shewn by prosecutions, under the same statute, of bakers
and crossing-sweepers for pursuing their callings on Sundays —
public opinion may regard an offence so leniently that the
fact of a man's having to undergo legal penalties for it,
would only serve to secure him such a widespread sympathy
as would countervail the deten-ent effect of the punishment.
To elevate the moral standard of the less orderly classes of
the community is undoubtedly one of the functions of the
criminal law ; but it is a function which must be discharged
slowly and cautiously. For attempts at a rapid and pre-
mature elevation are apt, as in the case of the Puritan
legislation of the Cromwellian period, to provoke a reaction
28 Rules for criminal legidation [ch.
which defeats their aim. An admirable ilhisti-ation of the
caution which a wise legislator exercises in undertaking the
tasks that moral leformers commend to him, is afforded by
the Englisli law of sexual offences (p. 143). It does not
inflict criminal penalties upon all those acts which the
ecclesiastical law prohibits and used to punish, and which
the law of contract still visits fitly with the sanction of
Nullity. It selects out of them, for criminal prohibition,
those alone in which there is also present some further
element — whether of abnonnality or violence or fraud or
widespread combination — that provokes such a general
popular disgust as will make it certain that prosecutors
and witnesses and jurymen will be content to see the pro-
hibition actually enforced.
6. Whenever any form of objectionable conduct satisfies
the five foregoing requisites, it is clear that the legislature
should prohibit it. But still the prohibition need not be
a criminal one. It would be superfluous cruelty to inflict
, criminal penalties where adequate protection can be secured
T to the community by the milder sanctions which civil courts
can wield.
Hence breaches of contract have rarely been criminally
dealt with. For, even when intentional, they are seldom
accompanied by any great degree of wickedness or any great
public risk ; or by any great temptation which the fear of an
action for damages would not be likely to counterbalance ; or
by any ill effects to the other contracting party which such
an action could not repair. It has, however, been made a
crime for a workman to break his contract of service when-
ever the probable consequences will be to endanger life or to
expose valuable property to serious injury ; (38 and 39 Vict.
c, 36). Again, violations of the rights of property, whenever
they are merely unintentional, are usually sufficiently re-
strained by the fear of a mere civil sanction, viz. the
payment to the injured person of a sum of money co-exten-
ii] Rides for criminal legislation 29
sive with the loss that has been inflicted, and of a further
sum towards the "costs" which he has incurred by the
litigation. But there are other forms of wrong-doing upon
which the fear of damages and costs, or even of such mild
forms of imprisonment as a civil court can inflict for breach
of any injunction which it has laid upon a defendant, do not
impose an adequate restraint. Thus the case may be one in
which the offender belongs to a class too poor to have the
means of paying pecuniary compensation. Or the harm done
to the immediate victim of the crime may be such that it
cannot be redressed by pecuniary compensation; as in the
case of murder. Or, as is far more commonly the case, the
gravity of the offence, or the strength of the temptation to it,
may be such that every instance of its commission causes
a widespread sense of insecurity and alarm. In that case
there is, beyond the immediate and direct victim who has
been robbed or wounded, an unknown group of "indirect"
sufferers; who, if only because they are unascertainable,
cannot have pecuniary compensation given them for the
suffering that has been caused to them. In such cases the
lawgiver must adopt some more stringent remedy. He
may, for instance, take precautions for securing some Ante-
cedent interference which will check the wrong-doer at the
incipient manifestations of his criminal purpose ; interference
such as our Saxon ancestors attempted to provide by their
system of Frankpledge, which made it the direct interest
of a man's neighbours to keep him from crime, and as
Sir Robert Peel provided in the nineteenth century when he
secured the establishment of the vigilant force of policemen
with whom even the current slang of the streets still associates
his two names. Or he may adopt the easier and more common,
but less effective, method of a Retrospective interference ; by
holding out threats that, whenever a wrong has been actually
committed, the wrong-doer shall incur punishment.
To check an offence by thus associating with the idea
30 Deterrence by Fmiishraent [ch.
of it a deterrent sense of Terror, is possible only when both
of two conditions are present. For (1) the wrong-doer
must know he is doing wrong; for otherwise a terror would
not affect him, and so not deter. It is on this ground that
immunity from punishment is conceded to a man who has
taken another's property by mistake for his own, or has
committed a murder in a fit of insanity. Nor does it suffice
that he knows that what he is doing is wrong, unless also
(2) he can ' help ' doing wrong : for a man ought not to be
punished for acts which he was not, both physically and
mentally, capable of avoiding ; since the fear of punishment
could not have the effect of making him avoid them. (Hence
comes the reluctance which lawgivers have often shewn to
punish men who have been coerced by threats of death to
aid in a rebellion, or who have been hurried into a thefb
by some kleptomaniacal impulse). When these two condi-
tions are satisfied, so that the restraint of Terror becomes
justifiable, such a restraint is supplied by criminal law very
efficiently. For, as we have already seen in our review of
the peculiarities which seem to distinguish criminal proce-
dure firom civil, the former exposes the offender to more
numerous hazards of having litigation instituted against
him, as well as to far severer "sanctions" in case of that
litigation succeeding; and, at the same time, it diminishes
his chances of having these penalties remitted.
According to the most generally accepted writers — as
for instance Beccaria, Blackstone, Romilly, Paley, Feuer-
bach — this hope of preventing the repetition of the offence
is not only a main object, but the sole permissible object,
of inflicting a criminal punishment. Hence Abp. Whately
vividly says, " Every instance of the infliction of a punish-
ment is an instance of the failure of that punishment " ; for
it is a case in which the threat of it has not proved perfectly
deterrent. Whately here embodies an important truth;
which had been exaggerated by Whichcote into the over-
ii] Prevention of crime 31
statement that " The execution of malefactors is no more to
the credit of rulers than the death of patients is to the credit
of physicians." But, whereas the death of one patient never
constitutes any step towards the cure of others, the execution
of a man, whom the fear of punishment has not deterred
from murder, may nevertheless help to deter others. Hence
there was sound logic in the often-derided exclamation of the
shipwrecked crew who, when they saw a gibbet on the
beach where they were washed ashore, cried "Thank God,
we've reached a civilised country ! "
Criminal punishment may effect the prevention of crimes
in at least three different ways.
(a) It may act on the body of the offender, so as to
deprive him, either temporarily or permanently, of the
power to repeat the offence; as by imprisoning him, or by
putting him to death.
(6) It may act on the offender's mind ; counteracting his
criminal habits by the terror it inspires, or even eradicating
them by training him to habits of industry and a sense of
duty. The improvements in prison-management which,
mainly under the influence of Howard's initiative, have been
carried out during the past century and a quarter, have been
largely directed towards the development of the educational
influences that can be thus attempted during imprisonment.
There are indeed some criminologists, especially in America,
who hold this reformation of the individual punished to be
the only legitimate object of punishment — an extreme view
which denies to the State so simple and obvious a right as
that of self-preservation.
(c) Its chief aim is to act on the minds of others, if
only in one of the ways in which it may act on his mind ;
for, though it cannot amend them by education, it may at
least deter them by fear. It is in this way that pecuniary
penalties help to prevent crime, though incapable of pre-
venting it either in mode (a) or as an educative influence.
32 Personal Resentment [ch.
But beyond this paramount and universally admitted
object of punishment, the prevention of crime, it may be
questioned whether there are not two further purposes which
the legislator may legitimately desire to attain as results
though only minor results, of punishment.
One of these — distasteful as is the suggestion of it to
the great majority of modem writers — is^the gratification of
the feelings of the persons injured. In early law this was
undoubtedly an object, often indeed the paramount object, of
punishment*. Even in Imperial Rome, hanging in chains
was regarded as a satisfaction to the kindred of the injured,
"ut sit solatio cognatis"; and even in England, so recently
as 1741, a royal order was made for a hanging in chains
" on petition of the relations of the deceased*." The current
morality of modern days generally views these feelings of
resentment with disapproval. Yet some eminent Utilitarians,
like Bentham, (and not without support from even so
dissimilar a writer as Bishop Butler'), have considered them
not unworthy of having formal legal provision made for their
gratification. Hence no less recent and no less eminent a
jurist than Sir James Stephen maintains that criminal pro-
cedure may justly be regarded as being to resentment what
marriage is to afi'ection: — the legal provision for an inevitable
impulse of human nature. And a very general, if an uncon-
scious, recognition of this view may be found in the common
judicial practice, in minor offences, of giving a lighter
sentence whenever the prosecutor " does not press the case " :
and again, in the widespread reluctance to punish crimes that
are not prosecuted until several years after their commission.
The modern community, like those ancient ones which Maine
depicts*, measures here its own public vengeance by the
resentment which the victim of the crime entertains. The
^ Holmes, Common Law, p. 34. * Prof. Amos' Ruins of Time, p. 23.
* Sermons at the lioll^ Chapel, vin. and ix., cf. Heurj Sidgwick's Lecture!
on Ethics, p. 357. * Ancient Law, ch. x.
ii] Moral Retribution 33
same impulse occasionally reveals itself, in the " Lynch law "
of the Southern United States, when the mob that condemns
a negro ravisher to the flames directs the outraged woman
herself to kindle the first torch.
There is a second subsidiary purpose of Punishment,
which, though not so distasteful as the foregoing one, is
almost equally often ignored by modem jurists. This con-
sists in the effects of Punishment in elevating the mor;il
feelings of the community at large. For men's knowledge
that a wrong-doer has been detected, and punished, gratifies —
and thereby strengthens — their disinterested feelings of moral
indignation. They feel, as Hegel has it, that " wrong contra-
dicts right, but punishment contradicts the contradiction."
Mediaeval law made prominent this effect of punishment.
For more than a century past, the tendency of jurists has
been to disregard it; but it occupies a large place in the
judgment of ordinary men. It has full recognition from
practical lawyers so eminent as Sir Edward Fry^ Mr Justice
Wright*, and Mr Justice Kennedy ^ As Professor Sidgwick
testifies : — " We have long outgrown the stage at which the
normal reparation given to the injured consisted in retri-
bution inflicted on the wrong-doer. It was once thought
as clearly right to requite injuries as to repay benefits; but
Socrates and Plato repudiated this, and said that it could
never be right to harm anyone, however he may have harmed
us. Yet though we accept this view of Individual resent- '^
ment, we seem to keep the older view when the resentment
is universalised, i.e., in Criminal Justice. For the principle
that punishment should be merely deterrent and reformatory
is, I think, too purely utilitarian for current opinion. That
opinion seems still to incline to the view that a man who
has done wrong ought to suffer pain in return, even if no
benefit result to him or to others from the pain; and that
1 Studies by the Way, pp. 40 — 71. Cf. Nineteenth Century, 1902, p. 848.
" Draft Jamaica Criininul Code, p. 129. 3 Law Magazine, Nov. 1899.
K. 3
84 Moral Retrihntion [ch.
justice requires this ; although the individual wronged ought
not to seek or desire to inflict the pain^" (It may however
be doubted whether any such qualification as that contained
in the last fourteen words is really imposed by current
opinion.)
The view of most people who are not lawyers is thus
much the same as that maintained by no less a philosopher
than Victor Cousin, in his terse epigram" that " punishment
is not just because it deters, but it deters because it is felt tQ
be just." They hold with Lord Justice Fry that "the object
of punishment is to adjust the suffering to the sin."
And accepted judicial practice, when carefully examined,
contains much to corroborate this view, and to shew that
Prevention is not the sole object of punishment. For were
it so, then (1) an absolutely hardened and incon-igible oflfender
ought to go scot-free, instead of being the most severely
punished of all*. So that in a community utterly defiant of
the law — as in that period of modem Irish history which
Lord Beaconsfield has described or imagined, when " the iron
discipline of the armed constabulary rather avenged outrage
than secured order " — such discipline ought to be altogether
abandoned as useless. Moreover, if prevention be all, then
(2) we should have to consider force of Temptation as being
usually reason for iucreasing the punishment-*; yet judges
have generally made it a ground of extenuation, as when a
thief pleads that he stole to satisfy his hunger, or a slayer
that he struck under the provocation of a blow. And (3) on
the other hand, by a divergence in the opposite direction,
1 Methods of Ethics, p. 280.
a Preface to the Gorgias of Plato. Cf. Mr Lilly, cited p. 36 infra.
3 Thus a very late writer (Dr G. V. Poore, Medical Juiispnidence,
p. 324, ed. 1901) expressly maintains that "In the case of young offenders,
one should make an example of them;. ..but when we deal with a hardened
sinner... the sooner we banish from our minds any idea of vengeance the
better." To most persons this will appear a precise inversion of the proper
contrast.
* As in thefts of goods necessarily exposed ; see p. 221 infra.
ii] Moral Retribution 35
the reluctance with which English law admits Duress by
any threats to be an excuse for a crime committed by the
intimidated agent, and its modem refusal^ to treat Necessity
as an excuse for homicide, even in the extreme case of a
starving crew of shipwrecked men, shew again that deter-
rence cannot be the sole object of punishment; for punish-
ment is thus inflicted where the fear of it could not have
sufficed to deter. Indeed the sense of Ethical Retribution
seems to play a part even in non-criminal law; for if, in
some action of debt or trespass, the judge, in order to save
himself trouble by shortening the suit, should offer to pay
the plaintiff the damages out of his own pocket, an ordinary
plaintiff would feel dissatisfied. Vivid proofs of the influence
formerly exercised on criminal law by this idea of Ethical
Retribution, may be found in the fact that it sometimes
drove the tribunals into the illogical excess of punishing,
from mere blind association of ideas, "crimes" committed
by non-ethical agents. Instances occur in the mediaeval
punishments sometimes inflicted on animals; and in the
" piacularity " attached in ancient Greece to even inanimate
instruments of death, as when, according to Pausanias, the
Prytanes at Athens condemned to penal destruction lifeless
objects that had accidentally slain a man^ — a feeling which
reappears in the " Deodand " of the old English law of Homi-
cide^ The same unreasoning association of ideas induced
so modern a statesman as Windham to urge in Parliament
(July 11, 1800) that even criminals who were insane should
nevertheless be punished " for example's sake."
On the other hand, the fact that temptation does not
always extenuate, inasmuch as in some classes of offences
(especially political and military ones) lawgivers often make
it a reason for threatening a graver punishment, sheM's that
the principle of Ethical Retribution is not the only one
1 Reg. V. Dudley and Stephens, L. K. 14 Q. B. D. 273. Infra, p. 75.
2 Itinerary, Bk. i. c. 28, s. 11. » lujia, p. 107.
3—2
36 Preventive pmiislntieiits . [ch. ii
thai guides them, and that they take account also of the
necessity of Prevention. A fiiitlicr proof may be found in
the comparatively severe punishment inflicted on criminals
who through mere negligence {e.g., a careless engine-driver),
or through intoxication {e.g., a mother overlaying a child in
drunken sleep), so that the purely ethical blame is small,
have caused some fatal irijui y. The same lesson is taught,
too, on the other hand, by some cases where the divergence
from mere Ethics is in the opposite direction ; as in the
English rules that mere Intention to commit a crime is
never punished, and that even the Attempt to commit it is
punished but slightly. For in either case the ethical guilt
may be just as great as if the guilty scheme had not
happened to become frustrated*.
It cannot however be said that the theories of criminal
Punishment current amongst either our judges or our legis-
lators have assumed, even at the present day, either a
coherent or even a stable form-. To this, in part, is due the
fact that — as will be shewn in the concluding chapter^of this
volume — our practical methods of applying punishment are
themselves still in a stage which can only be regarded as one
of experiment and transition.
^ In French law, an attempt to commit any grave crime, which has
miscarried "only through circumstances independent of the criminal's own
will," is punishable as severely as the consummated offence. Code Pinal,
art. 2.
' The student should refer to the discussion of the Purposes of I'unishment
in Salmond's Jurisprudence, ed. 1907, ss. 28—31, He may compare with it
the views of Dr llashdall {Theory of Good and Evil, i. 284—312) ; and of
Mr W. S. Lilly (Idola Fori, pp. 233 — 240) who regards Retribution as being
" first and beyond all things " the dominant aim of Punishment.
« P. 499 infra.
CHAPTEH III.
THE MENTAL ELEMENT IN CRIME.
We have already seen how closely the idea of moral
Wickedness is interwoven with that of legal crime; and also
(p. 30) how deterrence is dependent upon certain conditions
of Mind. Hence to constitute a crime and subject the
offender to a liability to punishment, i.e., to produce legal
criminal "guilt " (or, in Austin's terminology "imputability"),
a mental as well as a physical element is necessary \ Thus,
to use a maxim (which has been familiar to English law3ers
for nearly eight hundred years), "Actus nonfacit reum nisi
mens sit rea^." Accordingly, every crime involves: —
(1) A particular physical conditiou. Blackstone calls it
" a vicious act V As, however, it may consist of inaction the
term " vicious conduct " would be more appropriate.
(2) A particular mental condition causing this physical
condition. Blackstone calls it "a vicious will*." It is not,
however, a " will " in Austin's sense of that word ; but is
closely akin to, and includes, his "Intention."
In Ethics, of course, this second condition would of itself,
suffice to constitute guilt. Hence"* on Garrick's declaring
^ See Austin's Lectures on Jurisprudence, xviii., xxvi. ; Clark's Analysis of
Criminal Liability ; Stephen's General View of the Criminal Law, ch. in. ;
Stephen's Hist. Cr. Law, ii. 94 — 123.
2 Professor Maitland has traced the use of this aphorism in England
back to the Leges Henrici Primi, v. 28, and its origin to an echo of some
words of St Augustine, who says of Perjury " ream linguam nou facit nisi
mens rea." Hist. Eng. Law, ii. 475.
3 4 Bl. Ci.mm. 21. * Ibid. » Boswell, anno 1783.
38 Physical act necessary [ch.
that whenever he acted Richard Til he felt like a miuderer,
Dr Johnsou, as a moral philosopher, retorted, "Then he
ought to be hanged whenever he acts it." But there is no
such searching severity in the rules of Law. They, whether i
civil or even criminal, never inflict penalties upon mere
internal feeling, when it has produced no result in external |
conduct. So a merely mental condition is practically never
made a crime. If a man takes an umbrella from a stand at
his club, meaning to steal it, but finds that it is his ow^n, he
commits no crime. It is true that there appears at first
sight to be an important exception to this principle, in that
form of High Treason called "compassing the King's deaths"
But the exception is only apparent; for the Statute of
Treasons goes on to make it essential to a conviction that
some "overt act" should have been committed towards
accomplishing the end contemplated. In another apparent
exception, the misdemeanor of Conspiracy", it is true that the
Conspiracy itself is a purely mental state — the mere agree-
ment of two men's minds — and that here, unlike Treason, it
is not necessary to a conviction that any act should have
been done towards carrying out the agreement ; but it would
be impossible for two men to come to an agreement without
communicating to each other their common intentions by
speech or gesture, and thus even in conspiracy a physical
act is always present. Hence conspiracies are amongst
the commonest instances of the "overt acts" relied upon
in charges of Treason.
A still greater divergence from Ethics will be remarked,
if we turn from the criminal to the non-criminal branches of
Law ; for they often inflict their sanctions on mere external
conduct, which is not the result of any blameable state of
mind. Thus,
(1) In breaches of Contract, the mental and moral
» Infra, p. 265; Stephen, Digent of Criminal Law, Art. 52, 53.
* Infra, p. 287 ; Stephen, Digest of Criminal Law, Ait. 49.
Ill] Mental element "neceasary 39
condition of the defaulter has no effect upon the question
of his liability or non-liability^ ; unless the very language ol
the contract implies that it can only be broken by some act
which is wilful. Thus a wife's covenant in a separation deed
"not to molest" her husband, is held not to be broken by
anything but an intentional annoying of him. And, similarly,
if the defaulter be liable, the wilfulness or wickedness of his
conduct will not affect the amount of the damages to be
recovered from him ; (except in the case of a breach of
promise to marry).
(2) And in Torts the mental condition of the wrong-
doer is ignored very largely. But not so nearly universally
as in the law of Contract ; for there are a few classes of tort
{e.g., malicious prosecution) in which it is an indispensable
element of liability'' ; and in very many' (if not, indeed, in
all*) of the remaining classes, namely the torts in which
liability can exist without it, it still may be taken into
account in estimating the amount of the damages.
But in Criminal law, as we have seen, no external conduct, 1*^
however serious or even fatal its consequences may have been,
is ever punished unless it has been produced by some form or
other of mens rea. It is not, however, necessary that the
offender should have intended to commit the particular crime
which he has committed; (indeed not even that he should
have intended to commit any crime at all). In all ordinary
crimes the psychological element which is thus indispensable
may be fairly accurately summed as consisting simply in
" intending to do what you know to be illegal*." It admits,
however, of a minuter description. Thus, in the scientific
analysis given by Professor E. C. Clark*, it is shewn to
1 Anson on Contracts, Part v. ch. iii. s. 3,
2 Pollock on Torts, ch. n. ^ Hid. ch. v.
* Addison on Torts, ch. iii.
■> i.e. what you know to belong to a class of conduct that is {whether you
know it or not) forbidden by law.
* Analysis of Criminal Liability, \^[\ 80, 109. Cf. the analysis made by
40 Mental element analysed [ch.
require : —
(1) The power of Volition ; i.e., the oflfender must
be able to " help doing " what he does. This faculty is
absent in persons who are asleep, or are subject to physical
compulsion or to duress by threats, or whose conduct is
due to accident or ignorance ; and it is also absent in some
cases of insanity, of drunkenness, and of infancy. Where
it is absent, an immunity from criminal punishment will
consequently arise.
(2) Knowledge that what the offender is doing is
wrong; either intrinsically, or, at any rate, in prospect
of such consequences as he has grounds for foreseeing.
There will be an absence of such knowledge in very early
infancy, or in the case of some delusions as to the super-
natural ; and immunity, accordingly, will arise.
(3) In such crimes as consist of conduct that is not
intrinsically unlawful, but becomes criminal only when
certain consequences ensue, there must further be the
power of Foreseeing these consequences. It is sufficient
that he merely had this power, i.e., that he would have
expected these consequences had he but paid proper
attention to his surroundings ; but if this be all, he will
usually be placed by criminal law in a position of only
minor liability. But, if on the other hand, he actually
foresaw them (still more, if he both foresaw and desired
them, i.e., in Bentham's phrase, intended them " directly "),
the law will probably impose on him a major liability
The power of foresight may be absent in infancy, even m
late infancy ; and in some forms of insanity.
It might seem that a rule thus rendering the existence of
a complex mental element necessary to create legal liability,
would usually cause a prosecutor much difficulty in obtaining
evidence of it. For, to borrow the saying of a mediasval
Sir James Stephen in his Histoi-y of Criminal Law, ii. ch. xvni., and his
General View of the Criminal Law, 1st ed. ch. ni., 2ud ed. ch. v.
Ill] Intent to do wrong ' 41
judge, wlnVh Sir Frederick Pollock has made fn miliar to
modern readers, " the thoiifrht of man is not triable, for the
Devil himself knowefch not the thought of man'." But this )
difficulty seldom arises in practice; for in most cases the law
regards the criminal act itself as sufficient prima facie proof v
of the presence of this viens rea. Every ?ane adult is pre- 1
sumed to intend the natural consequences of his conducts J
We have seen that criminal liability may exist although
the offender had no intention to commit the particular crime
which he did in fact commit, and that it suffices if he had
an intention to commit a crime at all, whatever it were, or
even an act that was simply illegal without being criminal.
But there remains a further question — whether English law
does not even go so far as to permit a still slighter degree of
mens rea to suffice, viz. an intention to commit some act
that is wrong, as a breach of the accepted rules of Morality,
even though it be not a breach of Law at all. This question y
was discussed in the elaborately considered case of Reg. v.
Prince^, which deserves the most careful attention of the
student. There it had been thought by Brett, J. (afterwards
Lord Esher, M.R.), that to constitu^ criminal wens 7'ea there
must always be an intent to commit some criminal offence. '
The rest of the court, however, (fifteen judges), decided that,
upon the construction of the particular statute under which
the prisoner Prince was indicted, his conduct was not excused '
by the fact that he did not know, and had no reasonable \
grounds for supposing, that he was committing any crime
at all. Moreover, independently of the terms of that par-
ticular statute, most (or, probably, all) of these fifteen differed
from Lord Esher on the general rule of criminal liability;
and were agreed in the view that an intention to do anything
that is wrong legally, even as a mere civil tort and not as
1 Briau, C. J., Y. B. 17 Edw. IV. p. 1.
2 Rex V. Shcppard, K. and R. 169 (K. S. C. 403).
» L. E. 2 C. C. R. ir,i (K. S. C. 21).
42 The gravest mens rea [ch.
a crime at nil, would be a sufficient mens rea. Indeed ei;iht
of the fifteen, in a jnrlofment delivered by Bramwell, B.\
expressly wfnt even beyond this; laying down a third view,
according to which there is a sufficient mens rea wherever
there is an intention to do anything that is wrong morally,
even though legally it be quite innocent, both criminally and
civilly. If this opinion be correct, the rule as to mens rea
will simply be that any man who does any act which he
knows to be immoral must take the risk of its turning out,
from circumstances not contemplated by him, to be in fact
criminal also. This third view has great authority from
having been enunciated by so great a number of judges;
and it is approved by eminent text-writers. Yet it must be
remembered that it was only an obiter dictum ; being un-
necessary for the particular appeal, as there the circumstances
actually known to the prisoner made his conduct not merely
immoral but also legally actionable-, as a tort. And it is not
easy to reconcile this dictum with the express decision in
Reg. V. Hibbert^; which none of the judges in Reg. v. Prince
seem to have wished to overrule. Moreover the dictum has
the inconvenience of substituting the vagueness of an ethical
standard for the precision of a legal one.
Hitherto we have spoken only of the degree of mens rea
required in the general run of crimes. But there are also
crimes (usually grave ones) in which a higher degree is
necessary. And, on the other hand, there are some (usually
of a petty character) in which a less degree than the ordi-
nary one will suffice. Let us consider these two extremes.
A more complex and special (and therefore more guilty)
state of mind than the usual mens rea is required for some
particular crimes, sometimes by the common law — as in
» L. R. 2 C. C. R. at p. 173 (K. S. C. at p. 22).
2 See^^er Denman, J., at p. 178 (K. S. C. at p. 25).
3 L. R. 1 C. C. R. 184 ; cf. Beg. v. Green (3 F. and F. 274) where
Martin, B. directed an acquittal, though pronouncing the abductors' conduct
"very immoral." Cf. Lord Esher's "that whicli the law has forbidden"
(11 Q. B. D. at p. 689) ; and see Irish L. R. [1908] 2 K. B. at p. 425.
Ill] The least grave mens rea 43
the case of murder, what is technically called " malice afore-
thought" being there necessary — and sometimes by statute,
as in the cases of wounding " with intent to disfigure," and
of wounding "with intent to do grievous bodily harm." (But
with regard to statutory crimes it should here be noted that
although the definitions of them often contain words specifying
some mental condition — such as "knowingly," " maliciously,"
"wilfully," "negligently," "fraudulently" — yet words so
general seldom add in any way to tlie degree of mens rea
requisite ^ Usually, they merely alter the burtlen of proof
with regard to it; their effect being to throw on the Crown
the obligation of proving the ordinary mens rea by further
evidence than that mere inference from the actus reus which,
as we have already seen, is ordinarily sufficient to prove it.
Such evidence may consist, for instance, in expressions of
vindictive feeling, or in previous injurious acts nearly
identical with the present one; thus negativing the proba-
bility of accident or carelessness or ignorance^)
Conversely, some less complex and less guilty state of
mind than the usual mens rea is sometimes — by statutory
enactment, but hardly ever by the common law — made
sufficient for the mental element in criminal guilt. Such
statutory offences deserve consideration, not only because of
their singular character, but also because they are steadily
increasing both in number and in importance. Yet they are
still rare. For the legislature is usually averse to creating
them except where (1) the penalty incurred is not great
(usually not more than a petty fine imposed by a petty
tribunal), but (2) the damage caused to the public by the
offence is, in comparison with the penalty, very great ; and
where, at the same time, (3) the offence is such that there
would usually be peculiar difficulty in obtaining adequate
^ For they require only what the actus reus itself suggests.
2 See the cases cited in the note to Reg. v. Dossctt, 2 C. and K. 506.
44 The least grave mens rea [ch.
evidence of the ordinary mens rea, if that degree of guilt
were to be required.
Thus where on ordinary principles there would be no
guilt unless the offender actually knew all the circumstances
under which he acted (or, at any rate, had wilfully and
deliberately abstained from coming to know them), ex-
ceptional statutes sometimes make him guilty if, before
acting, he merely failed to take effective care to obtain
knowledge of the circumstances. The following are in-
stances of this exceptional kind of criminal liability: —
(a) Trespassing in pursuit of game ; though without
knowing that you were trespassing^
(b) Keeping two or more lunatics without a license;
though without knowing the persons to be lunatics*.
(c) Possessing, for sale, unsound meat ; though without
knowing it to be unsound ^
{d) Selling an adulterated article of food ; though with-
out knowing it to be adulterated*.
(e) Selling intoxicating liquor to a drunken person;
though without noticing that he was drunk^
In these cases, from the difficulty of obtaining legal
evidence of the offender's knowledge of one portion of his
actus reus {e.g., the adulteration, or the drunkenness), some-
thing much less than actual knowledge is allowed to suffice
in respect of that portion. But for all the rest of the actus
reus {e.g., the selling, or the supplying, or the walking in
pursuit of game), an ordinary mens rea is still necessary.
1 Morden v. Porter, 7 C. B. N. S. 641. Here, although the proceeding is
criminal in form, it is really only a summary mode of enforcing a civil right;
per Wright, J., in Sherras v. De Rutzen, L. R. [1895] 1 Q. B. 922.
2 Reg. V. Bishop, L.R. 5 Q. B. D. 259.
» Ilohbs V. Corporation of Winchester, L. E. [1910] 2 K. B. 471.
* lletts V. Arm^tead, L. li. 20 Q. B. D. 771; Goulder v. Book, L. R.
[1901] 2 K. B. 290. Laird v. Dobell, L. R. [190G] 1 K. B. 131, is very strong.
Contrast Derbyshire v. Ilouliston, L. R. [IH'.I?] 1 Q. B. 772.
6 Cundy v. Lecocq, L. R. 1^ Q. B. D. 207.
Ill] Master and servant 45
That is to say, the offender must have actually known that
he went through the act of selling; though it will suffice
that he merely neglected the means of coming to know that
the butter sold was adulterated, or the purchaser of the gin
was intoxicated.
Indeed, even a still slighter degree of nieiis rea than
this is sometimes allowed to suffice. For even when an
offence is of such a kind as not to be punishable unless
committed with full knowledge of its circumstances, it oc-
casionally happens that an offender is by statute made liable
to be punished for it ; in spite of the fact that it was not he,
but only some servant of his, that actually knew the circum-
stances. To punish such a man is a startling departure from
the general rule of law. For the utmost moral blame that
can be imputed to him is the comparatively trivial omission
of not having originally secured a trustworthy servant and] a
of not having subsequently kept him under constant super- Ja
vision. Hence, in the case of all ordinary offences, the law )
does not regard a master as having any such connexion with f
acts done by his servant as will involve him in any criminal ^
liability for them (whatever may be his liability in a civil
action of tort or contract); unless he had himself actually
authorised them. And to render him liable criminally
this authorisation must have been given either expressly j
or else by a general authority couched in terms so wide
as to imply permission to execute it even criminally^ i
Thus, iLa. bargeman steers his bar ge so carelessly^ that j
he sinks a skiff and drowns the oarsman, or a chemist's
shopman carelessly puts a poison into tlje_ medicine he
makes up, this negligence of^is will involve his master in
a civil liability, but not in any criminal one.
So fundamental is this rule that the common law seems
never to have deviated from it, except in one instance, and
1 Bex V. Hufif/ins, 2 Ld. Eaymond 1574 (K. S. 0. 35); Hardcastle v.
Bielby, L. II. [1892] 1 Q. B. 709; Newman v. Joiu'6, L. R. 17 Q. B. D. 132.
46 Servants of a ^mhlican [ch.
this only an anomalous offence, where the prosecution is
criminal merely in point of form, and in substance and effect
is only a civil proceeding, its object usually being not
Punishment but simply the cessation of the offence. The
offence in question is that of a public nuisance {i.e., one from
^ which no particular individual incurs any special damage).
\>^ (^ In the case of any private nuisance, as the remedy is by a
^^- ^^^ action, the master is liable, under the ordinary civil rale,
^ji^ for all the acts of his servant done in the course of his
employment ; even though they may have been done without
the master's knowledge and contrary to his general orders.
For public nuisances on the other hand, no civil action can
be brought, but only an indictment. There would therefore
often be much greater difficulty in obtaining effectual redress
for them than for the more trivial class of nuisances, were
not the master's liability for his servant's conduct made as
general as in the case of mere private nuisance. It accord-
ingly is made so\ This special rule has the further justifi-
cation that the master, by the very fact of setting a servant
upon work that may result in a nuisance, has brought about
a state of things which he ought at his peril to prevent from
actually producing that criminal result. Hence, instead of,
as in ordinary offences, being liable only if he had authorised
the servant's crime, he will, in the case of Nuisance, be
liable even although he had actually forbidden it. For here,
he ought, at his peril, to have seen that his prohibition was
obeyed.
But whilst the common law recognises only one instance
of this extreme liability, several in recent times have been
created by Parliament. Thus, for example, under the Licens-
ing Act, 1872, a publican is held to be liable for the conduct
of his servants if they supply refreshments to a constable on
duty"; or again, if they permit any unlawful game, or any
» Reg. V. Stephens, L. R. 1 Q. B. 702.
2 35 aud 3G Vict. c. 94, s. 16. Mullins v. Collins, L. R. 9 Q. B. 292.
%
Ill] Mens rea unrter StaUUes 47
" gaming " to be carried on upon the licensed premises^ For,
as Grove, J., says, "If this were not the rule, a publican
would never be convicted. He would take care always to be
out of the way." (In the offence of permitting gaming it was
especially desirable to relieve the Crown of the burden of
securing proof of the publican's mens rea. For though an
actics reus, as we have seen*, is usually itself sufficient prima h
facie proof of the ordinary mens rea ] this is not so when that
actus reus consists merely in the offender's "permitting" some
other person to do something.) Again, going still further, a
man has even been held responsible for adulteration effected
by a mere stranger, whose acts he had no means of protecting
himself against '.
But it must be remembered that even in these exceptional
offences, where one man's mens rea makes another become
liable, a mens rea is still necessary ^ Had the servant had
no grounds for thinking that the constable was on duty, or
that gaming was taking place, neither he nor his master
would be punishable.
It is, as we have said, only ia rare instances, that any less
degree of mens rea than the ordinary one is allowed by law
to suffice ; and clear words are usually needed to establish
that sufficiency. In construing any statutory definition of
a criminal offence there is always a presumption against
the sufficiency of any degree of mens rea that falls short of
the ordinary one. The lesser the suggested degree of it, or
the severer the punishment, or the older the statute, the
greater will be the need of clear and unmistakable words to
rebut this presumption and establish the sufficiency. Hence
1 IMd. 8. 17. Eetlfiate v. Haynes, L. R. 1 Q. B. D. 89; Bond v. Evans,
L. E. 21 Q. B. D. 249. "Gaming" consists in the playing for money or
monev's worth at any game, even though a lawful one. ^ Supra, p. 41.
3 Parker v. Alder, L. R. [181)9] 1 Q. B. 26. Cf. Brooks v. Mason (L. B.
1902, 2 K. B. 743), with Eviary v, Nolloth (L. R. 1903, 2 K. B. 204).
* Hence say— with the Judicial Committee (L. E. [1897] A. C. 387)— that
in them " a less mens rea is made sufficient," not that " there is no mens rea."
48 Meiu rea under Statutes [ch. hi
though the statute against Bigamy simply specifies the actus
reus — "being married, marries" — and is silent as to requiring
any mens rea, yet the great majority of the judges decided in
Reg. V. Tolson^ that the absence of the ordinary mens rea will
afford a good defence for remarrying; as, for instance, where
the prisoner contracted the second marriage with an honest
and reasonable belief that his first wife was dead. Similarly,
in Reg. v. Sleeps, under a statute which made it an offence
simply " to be found in possession of Government stores
marked with the broad arrow," and said nothing as to any
necessity for guilty knowledge, it was held that the prisoner
could not be convicted if the jury found that, though he had
possession of such stores, and had reasonable means of know-
ing of the mark, he neither knew of it nor had wilfully
abstained from knowing of it. But in statutes that are very
recent the courts are a little less reluctant to dispense with
the necessity for the ordinary degree of m,ens rea. For,
owing to the greater precision of modem statutes, it is per-
missible to draw a more emphatic inference from their
silence than would be drawn in the case of an older enact-
ment. Hence if the public evil of an offence created by
some recent statute be very great, when compared with the
smallness of its punishment, then even a mere silence as
to guilty knowledge may be sufficient to show that the
legislature did not intend ordinary guilty knowledge to be
essential to the offence I
i L. 1^. 23 Q. B. D. 168 (K. S. C. 15). Infra, p. 305.
2 L. and C. 44. Contrast Reg. v. Woodrow, 15 M. and W. 404.
8 Per Stephen, J. in lieg. v. ToUon, L. R. 23 Q. B. D. 1G8 (K. S. C. 15).
CHAPTER TV.
EXEMPTIONS FEOM RESPONSIBILITY.
We have seen that mens re(i, in some shape or other, is a
necessary element in every criminal offence. If this element
be absent, the commission of an actus reus produces no
criminal responsibility.
Blackstone's classification of the various conditions which
in point of law negative the presence of a guilty mind^, has
become so familiar that it is convenient to adhere to it, in
spite of the defects of its psychology. Three of his groups
of cases of exemption deserve minute consideration. These
are: —
I. Where there is no will.
II. Where the will is not directed to the deed.
III. Where the will is overborne by compulsion.
I. Whe7'e there is no luill. (Students of Austin's Juris-
prudence should be warned that Blackstone's " Will " is not
Austin's "Will," i.e., a volition, and indeed is not clearly
definable at all ; but it con-esponds roughly with Austin's
" Intention ^") This absence of will may be due to any one
of various causes.
(1) Infancy.
The most common cause, one which must place every
member of the community beyond the control of the criminal
law for some part of his life, is Infancy. By the law of Crime,
infants are divided into three classes : —
> 4 Bl. Coram. 21.
" Austin, Lect. xix. ; Clark's Analysis oj Criminal Liability, p. 74.
50 Infancy [ch.
i. Those under seven years of age. There is a conclusive
presumption that children so young cannot have mens rea at
alP. Nothing, therefore, that they do can make them liable
to be punished by a criminal court ; though it is not illegal
for parents to administer a domestic chastisement to such
children if they have, in fact, become old enough to under-
stand it^
ii. Between seven and fourteen^. Even at this age
" infants " are still presumed to be incapable of mens rea ;
but the presumption is no longer conclusive, it may be re-
butted by evidenced Yet the mere commission of a criminal
act is not necessarily, as it would be in the case of an adult,
sufficient primd facie proof of a guilty mind. The pre-
sumption of innocence is so strong in the case of a child
under fourteen that some clearer proof of the mental con-
dition is necessary-'. The necessity for special proof of viens
rea in the case of an infant of this age is impressed upon the
jury v/ho try him, by their being asked not only the ordinary
question, " Did he do it ? " but also the additional one, " Had
he a guilty knowledge that he was doing wrong?"
This guilty knowledge may be shewn by the fact of the
offender's having been previously convicted of some earlier
crime ; or even by the circumstances of the present offence
itself, for they may afford distinct proof of a wicked mhid.
Thus a boy of eight was hanged in 1629 for burning
two barns ; " it appearing that he had malice, revenge, craft
and cunning ^" Two boys, aged eight and nine respectively,
were tried at Liverpool, in 1891, for murder, in having drowned
1 Y. B. 30 and 31 Ed. I. 511. ^ Reg. v. Griffin, 11 Cox 402.
f 8 Modem statutory phrases should be noticed :— up to fourteen, a "child ";
fourteen to sixteen, a "young person"; sixteen to twenty-one, a "juvenile
\ adult."
4 Hex V. Alice (1338), Lib. Ass. Ann. 12, f. 37, pi. 30 (K. S. C. 41).
6 y. B. 3 Hen. VII. f. 1, Hil. pi. 4 (K. S. C. 41).
" 1 Hale P. C. 25. A boy of twelve and a half was hanged in New Jersey
in 1828; 18 American Decisions 404.
iv] Insanity . 51
another boy, in order to steal his clothes ; but they were
acquitted on the ground of their infancy.
iii. Between fourteen and twenty-one. At fourteen an
infant comes under full criminal responsibility. A trifling
exception perhaps exists in the case of some ethically
innocent oft'ences of omission, which may be merely due to
lack of wealth ; like non-repair of a highway.
But, by the Children Act, 1908 (8 Edw. VII. c. 67, s. 103)
no infant under sixteen can be sentenced to death, or to
penal servitude, or (unless he be ' unruly ') to imprisonment.
And no infant wn^QV fourteen can be sentenced to imprison-
ment. In all these cases the forbidden punishment is re-
placed by mere ' Detention ' ; and even it, in most crimes,
can only be for a month. C£ p. 484, infra.
(2) Insanity^.
Absence of " Will " may also arise, not from the natural
and inevitable immaturity which we have just discussed,
but from a morbid condition of mind.
Within a century of our own time so eminent a states-
man as Windham could urge in Parliament the view that
even the most insane criminal ought to be hanged for his
crime "for example's sake." But the English law, even in its
harshest days'-, never adopted any rule so much at variance
as this would be with every intelligible theory of criminal
punishment, whether regarding it as deterrent or even as
retributive. On the other hand our law has n^ver held (as a
widespread popular error imagines it to hold) that the mere
existence of insanity is of itself necessarily sufficient to
exempt the insane person from criminal responsibility. Only
insanity of a particular and appropriate kind \vill produce
any exemptive effect. For lunatics are usually capable of
being influenced by ordinary motives, such as the prospect of
1 See Sir J. Stephen, IlUt. Cr. Law, ii. 124—186; General Vieio of
Criminal Law, 1st ed., 86—96.
8 Cf. Kentish Eyre of 1313 (Selden Society), p. Ixxi.
4—2
52 . Insanity [oh.
punishment; thev u^umIIv iil.m tlieir crimes with care, and
take means to avoid detection. Lord Brougham tells a
striking story of the patients confined in the York Asylum
having discussed amongst themselves the case of the in-
cendiary, Martin, when he was about to be tried for setting
York Cathedral on fire. The conclusion which they reached
was — " He will be all right ; for he is one of us, so the law-
will take no notice of him." They were quite capable of
taking into account the chances of being or not being
punished'.
Not only popular opinion but even the opinion of medical
experts inclined at one time to the view that the presence of
any form whatever of insanity in the man who has committed
a criminal act is— or at any rate ought to be — legally suf-
ficient to afford him immunity from punishment. But of
late years the accumulated results of a careful observation of
insane patients in various countries has thrown clearer light
upon the mental processes of the insane; and has brought
back medical opinion into closer accord with the views of
lawyers. The world, it is now recognised, is full of men and
women in whom there exists some taint of insanity, but who
nevertheless are readily influenced by the ordinary hopes and
fears which control the conduct of ordinary people. To
place such persons beyond the reach of the fears which
criminal law inspires, would not only violate the logical
consistency of our theory of crime, but would also be an
actual cause of danger to the lives and property of all their
neighbours. Where insanity takes any such form, it comes
clearly within the rule of criminal legislation propounded by
Bain*^: — "If it is expedient to place restrictions upon the
conduct of sentient beings, and if the threatening of pain
1 " Lunatic prisoners, when guilty of assaulting a prison warder, will
sometimes say ' You can't touch me ; I am a lunatic.'" (Dr John Campbell'a
Thirtij Years' Experiences of a Medical OJicer, p. 92.)
2 Mental and Moral Science, p. 40i.
IV j McNaufihtou^s Case 53
operates to arrest such conduct, the case for punishment is
made out."
English law therefore divides, and would seem to be
fully justified in dividing, insane persons into two classes: —
(a) Those lunatics over whom the threats and pro-
hibition of the criminal law would exercise no control, and
on whom therefore it would be gratuitous cruelty to inflict
its punishments ; and
(6) Those whose form of insanity is only such that — to
use Lord Bram well's apt test — " t hey would not have yielded
to^their_insanity if a policeman had been at their elbow."
But the very difficult practical question as to where
the line of demarcation should be drawn between the two
classes, is one upon which the views of English judges have
undergone grave though gi-adual changes, and even now
cannot be said to have developed into a complete or even a
perfectly stable form. At^e time a view prevailed^ that no
lunatic ought to escape punishment unless he were so totally
deprived of understanding and memory as to be as ignorant
of what he was doing as a wild beast. But ever since the
epoch-making speech of Erskine in defence of Hadfield'^ a
view at once more rational and humane has prevailed, which
bases the test upon the presence or absence of the faculty of
distinguishing right from wrong.
In a still later generation, this modem rule as to the
criminal aspects of insanity acquired a degree of authoritative
precision, unusual for any common law doctrine, through its
formulation, in 1848, in an abstract shape by a set of answers
delivered by the judges in reply to questions propounded
to them by the House of Lords. One Daniel McNaughton'
had aroused great public excitement by the murder of a
Mr Dnimmond, the private secretary of Sir Robert Peel,
in mistake for the statesman himself The acquittal of
1 Cf . 16 St. Tr. 704 ; a.d. 1724.
2 Rex V. Hadficld (1800), 27 St. Tr. 1281.
^ The name is spelt variously.
54 McNaughtods Case [ch.
McNaughtoii on the ground of insanity provoked such wide-
spread dissatisfaction, and so much public attention, that it
became the subject of debate in the House of Lords (though
the case never came before that House in its judicial capacity).
In consequence of the debate, the Lords submitted to the
judges certain abstract questions respecting persons afflicted
with insane delusions'. The replies given by the judges, to
these questions, may be summed up thus : —
(i) Every man is presumed to be sane, and to possess a
sufficient degree of reason to be responsible for his crimes,
until the contrary be proved to the satisfaction of a jury.
(ii) To establish a defence on the ground of insanity, it
must be clearly shewn that, at the time of committing the
act, the party accused was labouring under such a defect of
reason, from disease of the mind, as not to know the nature
and quality- of the act he was doing, or (if he did know this)
not to know that what he was doing was wrong.
(iii) As to his knowledge of the wi'ongfulness of the act,
the judges say : — " If the accused was conscious that the act
was one which he ought not to do, and if that act was at the
same time contrary to the law of the land, he is punishable."
Thus the test is the power of distinguishing between right
and wrong, not, as was once supposed, in the abstract, but in
regard to the particular act committed.
(iv) Where a criminal act is committed by a man under
some insane delusion as to the surrounding facts, which
conceals from him the true nature of the act he is doing, he
will be under the same degree of responsibility as if the facts
with respect to which the delusion exists had been as he
imagined them to be.
Let us add that, for a defence of insane delusion, the act
must be directly connected with the delusion. (An instance
of such connexion, though due not to insanity but to sleep,
1 neg. V. McNaughtoii, 10 CI. and F. 200, 4 St. Tr. (N.S.) 847; Townsend's
Modern State Triah, i. 326; K. S. C. 43. * E.g. tJiat the drug would kill.
iv] McNaughtons Case 55
may be cited from Scotland where a man, dreaming that he
was struggling with a wild beast, killed his baby^) So a
man has been convicted of obtaining money by false pre-
tences notwithstanding his being so insane as to be under
the delusion that he was the lawful son of a well-known
prince. But, as Sir J. Stephen points out, "juries ought to
be careful not to conclude hastily that there is no connexion
between a madman's conduct and his delusion because a sane
man would see no connexion between what he does and what,
under the influence of his delusion, he believes."
The questions put to the judges had reference, as we
have seen, only to the effect of insane delusions and insane
ignorance. But insanity affects not only men's beliefs, but
also, and indeed more fi-equently, their emotions and their
wills. Hence, during the period which has elapsed since
1843, much discussion has taken place as to the effect of
these latter forms of insanity in conferring immunity from
criminal responsibility. The result has been that though
the doctrines laid do^^^l in the judges' answers, given after
McNaughton's trial, remain theoretically unaltered", the
practical administration of them has been such as to afford
a wider immunity than their language would at first sight
seem to recognise l For many forms of insanity, which do
not in themselves constitute those particular defects of reason
which the judges recognised as conferring exemption from
responsibility, are now habitually treated as being sufficient
evidence to shew that one or other of those exemptive defects
was also actually present. A man who after killing his child,
goes forthwith to the police station to surrender himself, and
' Eraser's Case, 4 Couper 70; a.d. 1878. He was discharged.
- Cf. 5 Cr. App. E. 123.
3 "Had the McNauKhton dictum been rigidly insisted on, it would have
been the means of hanging more than half the women who are now in
Broadmoor, as criminal lunatics, for the murder of their children" (see
Sir Clifford Allbutt's System of Medicine, viii. 456).
56 Insane impulse [ch.
gives a lucid account of what he has done, would certainly
seem to know the nature and quality of the act committed,
and to know that in doing it he did wrong. Yet if he
had previously shewn some symptoms of madness, and has
killed this child with no discoverable motive and with no
attempt at concealment, a judge would probably encourage
a jury to regard these facts as evidence of his labouring
under such insanity as would justify them in pronouncing
him irresponsible ^ The mere fact that a crime has been
committed without any apparent motive is, of course, not
sufficient of itself to establish any similar immunity^
How far an insane impulse to do an act is to be regarded
as affecting the criminal responsibility for doing it, is a
question which is not yet definitely settled. In the United
States both the Supreme Court and the courts of some
of the States recognise irresistible impulse as being a
sufficient defence, even when accompanied by a knowledge
that the act was "vvrong. In England, however, the balance
of authority is the other way. Judges have held — cf. Bray, J.,
in Rex v. Coelho, in 1914 (10 Cr. App. R. at p. 212)— that
an insane impulse, even when uncontrollable, atibrds no
defence I On the other hand, the authority of Sir James
Stephen^ and the dicta of other judges* support the view
that an insane impulse should be admitted as a defence
1 Cf. Beg. V. Jackson (1895), Central Criminal Court Sessions Papers,
cxxii. 1156 ; and the still stronger case tried before Bigham, J. (Times,
July 29, 1901), of Hannah Cox, a devoted mother, who, under pressure of
poverty, drowned two of her infants, " as it was the best thing she could do
for them." Though she had shewn no other symptoms of insanity, either
before or after this act, the judge advised the jury to declare her insane.
- Meg. V. llayncs, 1 F. and F. 666 (K. S. C. 52).
= Reg. V. Burton, 3 F. and F. 772 (K. S. C. 50).
•• Dig. Cr. Law, Art. 28; Hist. Cr. Law, ir. 167.
' But Bex V. Hay, 22 Cox 286, is no sound authority for this view; since
Hay, independently of any Impulse, "did not know the quality" of his act;
see C. C. C. Sess. Pap. clv. 338.
iv] Insane impulse 57
if really irresistible, (not merely unresisted)^ because then
the act done would not be a "voluntary" act at all. Stephen,
indeed, regards this view as being a consequence, rather than
a contradiction, of the doctrines laid down by the judges of
1843 in their answers. He adds to it a single qualification —
"unless this absence of the power of control has been produced
by his own default." uj j
There is one form of insane impulse, that of kleptomania, y^ f
which is sometimes put forward, with or without evidence, by ' ''' "
well-to-do persons accused of trivial acts of theft. It naturally
is chiefly in courts of Petty Sessions that these unilupoftant
charges are preferred ; and in such courts a plea of insanity
is the safer to raise because they do not possess the power,
enjoyed by higher tribunals, of ordering an accused person,
who establishes this plea, "to be kept in custody as a criminal
lunatic ^" Hence as to the legal effect of kleptomania it is
impossible to speak with certainty, as there seems to be no
reported case in which any judge of assize has dealt with it.
That an impulse to steal does sometimes arise from actual
insanity seems to be established^ by the fact that it is
often limited to special times (e.g., that of pregnancy) or to
some special class of objects, which are accumulated in
numbers not at all needed by the thief (e.g., hats, boots,
tablecloths).
Still the defence of insane Impulse is now rarer than
that of Unconscious Automatism, as in sleep-walking or
epilepsy. But our courts, unlike Continental tribunals, have
not yet become familiar with the plea that a crime was
committed under the influence of post-hypnotic "sugges-
tion," exercised by some designing person who had induced
hypnotic sleep in the offender. It remains to be seen
^ A remarkable iustance of continued and successful resistance to an
insane impulse is referred to by Stephen, Hist. Cr. Law, ii. 172.
- Trial of Lunatics Act 18S;3 (46 and 47 Vict. c. 38, s. 2).
5 See Taylor's Med. Jur. 10th ed. 757.
58 Insanity [ch.
what exeraptive effect will ever be accorded in England to
such " suggestions," or to those affections which (like hystero-
mania and neurasthenia) have been called the borderland of
insanity. Such questions have become of great practical
importance, now that modern science has come to recognise
so clearly, in addition to the ordinary " Intellectual " insanity
which impairs a man's Judgment, a "Conative'"' form which
affects his Will, whether by weakening his natural impulses
to action or by inspiring abnormal impulses, and an "Affec-
tive" insanity which disturbs his Emotions of love or
hatreds
In the United States, insanity, even when it is not of
such a character as to confer complete exemption from
responsibility, is recognised as a circumstance that may
mitigate the offender's punishment. Prof Clifford Allbutt'
defends this view ; on the ground that every form of insanity
weakens the power of self-control, and that thus the offender's
moral guilt is proportionately lessened, and therefore his
punishment ought to be the less. And even in England
a weakened c_apacity of self-control is in practice pften^ thus
treated — whether with strict legality or not — as a mitigating
circumstance; as where a sunstroke has left a man with
a will-power permanently so weakened that he pursues any
passing pleasure with little regard for consequences. Yet
the argument urged by Prof Allbutt might be at least as
aptly employed for the opposite purpose of shewing that
insanity, when not of such a form as to destroy responsibility,
should actually aggravate the punishment; for the weaker
a man's will, the more sternly does it need to be braced by
the fear of penalty.
In cases where a defence of insanity has been accepted
by a jury, the form of their verdict used to be " not guilty "
1 Cf. Eibot, Lcs Maladies de la Vohmte.
2 System of Medicine, viii. 291.
3 Cf. 7 Cr. App. R. 59 ; 8 Cr. App. R. 90.
(
iv] Intoxication 59
on the ground of insanity. But now, under the Trial of
Lunatics Act 1883 (46 and 47 Vict. c. 38), it is to be "guilty
of the act (or omission), but so insane as not to be re-
sponsible, according to law, for his actions at the time when
the act was done (or the omission made)."
The Court then orders the prisoner to be kept in custody
as a "criminal lunatic^" till His Majesty's pleasure shall be
known; and His Majesty may order him to be kept in
custody, during his pleasure, in such place and manner as
he may think lit. The confinement is usually lifelong^ ; and
consequently the defence of insanity is rarely set up in the
higher criminal courts except in heinous crimes'.
It may be added that insanity is sometimes important
in criminal law, even apart from its bearing on mens rea.
For if a man become insane after committing a crime, he
cannot be tried until his recovery ; and, again, if after con-
viction a prisoner become insane, he cannot be hanged until
his recovery, for he may have some plea which, if sane, he
could urge in stay of execution*.
(3) Intoxication.
Drunkenness is ordinarily no excuse for the commission
of a criminal act ; even though it have produced for the time
* On the other hand, a "lunatic criminal" is a convicted criminal who,
whilst undergoing his imprisonment, has become insane.
2 If we leave out of view those female prisoners whose insanity was
merely a puerperal mania, only about one prisoner in 150 obtains release
from Broadmoor.
* An unusually minute picture of the practical working of a trial where
this defence is raised may be seen in the Times of April 20th, 18S2, which
reports the trial of Maclean before a special commission (Coleridge, L.C.J. ,
and Huddleston, B.), for High Treason in shooting at the Queen. The
criminal act was admitted, and the only issue was that of sanity.
* Less than thirty of the prisoners for trial in any year are found to
be so insane as to be incapable of trial, whilst loss than forty of those tried
are acquitted on the ground of insanity. A person so acquitted cannot
appeal to the Court of Criminal Appeal against either half of the verdict ;
Fehtead's Case, L. E. [1914J A. C. 534.
GO Intoxication [CH.
great aberration of mind. For, unlike insanity, it has been
produced voluntarily ; and to produce it was wrong, both
morally and legally ^ Accordingly the law will not allow
one wrong act to be an excuse for another^ Hence the
gi-oss negligence^ which has caused a fatal collision is punish-
able, not only in a sober driver but also in a drunken one.
And if a man, when excited by li(iuor, stabs the old friend
whum he never quarrelled with when sober, or steals the
picture which never attracted him before, it is no defence to
say that " it was the drink that did it." Indeed the older
law (4 Coke 125 a) regarded intoxication as even aggravating*
the guilt of any crimes whose predisposing cause it was ; but
modern judges, whilst still holding that it cannot excuse that
guilt, admit that it may mitigate the punishments
Moreover, though drunkenness is thus no excuse for a
guilty state of mind, it often affords a defence for an actus reus
by being evidence that no guilty state of mind existed. For
intox ication may c ause — even on grounds slighter than could
reasonably lead a sober person to the same erroneous
conclusion — a Mistake of fact, such as is incompatible*' with
^ Until 1872 it was a criminal oiJence, under 4 Jac. I. c. 5, s. 2; and even
now a conspiracy to produce it would be indictable, and a contract for it
would be void.
2 But actual Insanity, even when produced by drunken habits (as in some
cases of delirium tremens), exempts from criminal responsibility just as
effectually as if it had not originated in misconduct (Eeg. v. Davis, 14 Cox
563). And intoxication itself, in those rare cases where it is innocent— as
when" produced by necessary medical treatment or by the fraud of malicious
companions — has the full exemptive eiJect of insanity. This exemption has
been extended in Ireland and the United States even to the case of a person
who, in consequence of fatigue or sleeplessness, becomes intoxicated by
taking his accustomed small quantity of alcohol, which usually he takes with
impunity {Heg. v. Marij R., see Kerr on Inebriety, ch. xxii).
^ Cf. 16 Cox, at p. 309 (surgeon's negligence).
■• Though not on the principle of Lord Cockburn's convivial Scottish
judge who argued, "If he remains so bad even when drunk what must he be
when sober ? ' '
» 1 Cr App. K. 181, 255; 25 T. L. K. 76. « Infra, p. 65.
iv] Intoxicatloti 61
mens rea. The drunken man fancies some one else's umbrella
to be his own ; or takes an innocent gesture to be an
attempted assault and hits back in supposed self-defence\
Or,^ltluHi^li SMin ■ mens rea does exist , the misapprehension /ima^v*}'^
caused by drunkenness may preclude a more aggravated
form which, at first sight, appears ta harve-existed. The man
did strike his enemy unjustifiably ; but was so drunk as to be
incapable of realizing how fatally excessive was the number
of blows he inflicted, or how dangerous was the weapon he
used. This ignorance, whilst leaving him responsible for
such an assault as he meant to commit, will release him from
the additional responsibility which a sober man's knowledge
of the facts would have imposed. Thus even where death
has been produced by a prolonged beating with a broorn-
stick-, or by an attack with a razor^ the jury must nevert^-
less consider " whether the prisoner was, at the time, in such
a state of drunkenness that he could not appreciate that his
act would cause death or grievous bodily harm^" For, if he
were, the death must be treated as if it were only the result,
not of a dangerous act, but of a merely illegal one; and
consequently as but a manslaughter.
Again, even when it has not produced any error as to
present fact, drunkenness may still exculpate by affording
evidence that the man's intentions as to the future were not
such as his acts would — if he had been sober — have
suggested ^ Thus it may show that an apparent bui-glar
1 Beg. V. Gamlen, 1 P. and F. 90 (K. S, C. 54). At a baby's christening-
party, its nurse, having got so drunk as to be "quite stupid and senseless,"
put the infant on the fire, by mistake for a log of wood. The magistrates
discharged her. Gent. Mag. 1748, p. 570.
2 Rex V. Meade, L. R. [1909] 1 K. B. 895. Cf. 3 Cr. App. E. 187.
* Rex V. Griffiths ; Liverpool Assizes, Oct. 30, 1913.
* Avory, J., in Rex v. Griffiths. The Court of Criminal Appeal said
(Nov. 17, 1913) "We all think that there is no fault to be found with
this summing up." Cf. 9 Cr. App. R. 109.
6 Cf. p. 329 infra; Rex v. Bentley, 9 Cr. App. R. 109.
62 Intoxication [ch.
had no intention of stealing^ ; or that an apparent suicide
' jumped into the water when " so drunk as not to know what
he was aboutl" The more complex the intent required by
the definition of the particular crime, the more likely is
drunkenness to be useful in disproving the presence of some
element requisite to it; as by showing that wounds were
'T inflicted with no " intent to do grievous bodily harm," or that
a false pretence was made with no " intent to defraud."
Let us finally note that the question " Was he drunk ? " is
often^ answered too definitely, as if there existed some single
standard of sobriety. Intoxication, it should always be re- ^^^^^
membered, is a question of degree, ranging from mere '^ ^'
exhilaration down to unconsciousness. The man may be too ^wtc
drunk to do this act properly, yet sober enough to do some
other*.
(4) Corporations.
Corporations formerly lay quite outside the criminal law.
If a crime were committed by a corporation's orders, criminal
proceedings, for having thus instigated the offence, could
only be taken against the separate members, in their
personal capacities, and not against the corporation as itself
a guilty person^ This was an inference from the technical
rule that criminal courts expect a prisoner to stand at their
bar, and do not permit "appearance by attorney ^" But
1 The State v. Bell, 29 StQes 316 (K. S. C. 55).
2 Eeg. V. Moore, 3 C. and K. 319.
3 Especially often when it is (not the Excuse but) part of the Offence.
•* We may add that an accused man may sometimes be helped towards
acquittal by the fact of his having been drunk even on some occasion sub-
sequent to the date of the crime in question. For it may afford an innocent
explanation of conduct that otherwise would suggest a consciousness of guilt;
as where, on being arrested, he has made untrue statements or has refused to
make any statement at all.
5 Per Holt, C.J., 12 Mod. 559. Cf. Pollock and Maitland, i. 473, 661.
8 This technical difficulty was afterwards evaded by the device of removing
any indictment of a corporation into the King's Bench ; as that Court would
allow it to appear by attorney. Cf. p. 466 n. infra.
iv] Corporations ' 63
it was further supported also by more scientific considerations,
which the Roman law had anticipated and accepted ^ It was
urged that a corporation, as it had no actual existence, could
have no will ; and therefore could have no guilty will^ And
it was further urged that, even if the legal fiction which gives
to a corporation an imaginary existence may be stretched so
far as to give it also an imaginary will, yet the only activities
that can consistently be ascribed to the fictitious will thus
created, must be such as are connected with the purposes
which it was created to accomplish. Hence, it cannot
compass a crime; for any crime would be necessarily ultra
vires.
But under the commercial development which the last
two generations have witnessed, corporations have become
so numerous that there would have been grave public danger
in continuing to permit them to enjoy this immunity. The
various theoretical difficulties have therefore been brushed
aside; and it is now settled law that corporations may be
indicted by the corporate name, and that fines may be con-
sequently inflicted upon the corporate property. The inno-
vation was introduced at first by drawing a distinction
between offences of non-feasance and those of mis-fcasance ;
on the ground that whilst, in the case of a criminal mis-
feasance, the servant or agent who actually did the criminal
act could always be himself indicted, no such indictment
would be available in the case of a non-i'easance, for the
omission would not be imputable to any individual agent
but solely to the coqooration itself Hence, in 1840, an
indictment for non-feasance, in omitting to repair a highway,
* But the theory of Germanic law inclined the other way ; as our English
institution of Frankpledge (Stubbs' Const. Hist, i. 618) may serve to
remind us. Cf. Maitland's Political Theories, p. xxxix.
' Hence, even in civil actions, doubts were entertained, until a few years
ago, as to the possibility of holding a corporation liable for those Torts in
which "express malice" is necessary. Abrath v. North Eastern By. Co.,
L. R. 11 A. C. 247. Contrast, now, Chater v. Freeth, 27 T. L. R. 467.
64 Corporations [ch.
was allowed against a corporation, in Eeg. v. Birmingham
and Oluucester Ry. Co.^ Soon afterwards, in the case of
Reg. V. The Gh-eat North of England Ry. Co.", an indictment
was siniilarly allowed even for a mis-feasance, that of actually
obstructing a highway. And the principle has received legis-
lative approval. For the Interpretation Act 1889* provides
that in the construction of every statutory enactment re-
lating to an offence, whether punishable on indictment or
on summary conviction, the expression ' person,' shall, unless
a contrary intention appears, include a body corporate. The
gravity, or the nature, of an offence may, as we shall shortly
see, be sufficient to shew that the framers of enactments
about it could not have had any intention of regarding
bodies corporate as capable of committing it.
For, although there is no longer any difficulty in indicting
a coi-poration, there may be a difficulty in punishing it.
True, it possesses property, and it can be therefore fined.
But it possesses no body, and therefore it cannot be hanged
or imprisoned. Hence arises a limit to the range of its
criminal liability ; viz. that a coi"poration can only be prose-
cuted, as such, for those offences which the law allows to
be punished by a fine. Thus, whilst it can be indicted and
fined for a libel published by its order^ it cannot be indicted
for a treason, or a burglary, or any of the other offences
which are too grave to admit of being \asited adequately
by a merely pecuniary penalty. If any crime so heinous
be committed by the orders of a corporation, the various
persons by whom it was ordered must be indicted indi-
vidually in their own names, and punished in their o^vn
persons. It must be remembered that they are also liable
to be thus individually indicted, even in the case of those
1 3 A. and E. (N. S.) 223. " 9 A. and E. (N. S.) 315 (K. S. C. 69).
^ 52 and 53 Vict. c. 63, s. 2. Pearks v. Ward, L. R. [1902] 2 K. B. 1.
* See Eastern Counties Ry. Co. v. Broom, 6 Ex. 314. Or, in Canada and
in Now York, even for Manslaughter.
iv] Mistake 65
less heinous offences for which their corporation might itself
be indicted ; for it becomes indictable only through the fact
that a wrong has been instigated by them.
II. Whei-e the will is not directed to the deed.
We may fairly regard this state of mind as always arising Aa,aa/9.
from mistake or some other form of ignorance ; {e.g., taking
from the hat-stand in your club another man's umbrella in
mistake for your own). Blacks tone ^ speaks of there being
also a class of cases in which it arises from (what he calls) /: ^
Misfortune ; apparently with the idea of distinguishing, from . . «
acts done with the expectation that no unlaw/ id result would '^'•'^ ^
follow on them, some acts done with the expectation of their
being followed by no result at all. But it does not seem
possible to draw accurately any such line of demarcation.
And inasmuch as, even were it drawn, the legal treatment
of the two classes would present no points of difference, all
distinction between them may well be disregarded here.
Our criminal law often allows mistake or ignorance to
afford a good defence by shewing, even where there has been an
actus reus, that no sufficient mens rea preceded it. But such
a defence can only arise when three conditions are fulfilled.
(1) The first condition is that the mistake must be of Ji'^J t
such a character that, had the supposed circumstances been '
real, they would have prevented any guilt^ from attaching to
the person in doing what he did. Therefore it is no defence
for a burglar, who breaks into No. 5, to shew that he mistook
that house for No. 6; or that he did not know that nine
o'clock had afready struck. Similarly, on an indictment for
assaulting a constable "in the discharge of his duty," the
fact that the assailants did not know ol his official character
will be no defence for them. On the other hand, it will be
no offence to lay violent hands upon a pei-son, whom you
1 4 Bl. Comm. 2(i.
a As to whether this means legal jjuilt or merely moral guilt, see p. 41 supra.
K. 5
66 Mistake [ch.
reasonably, though mistakenly, suppose to be committing
a burglary^ The cases of Reg. v. Prince and Meg. v. Tolson,
which we have already discussed*, afiford important illustra-
tions of this principle.
(2) A further condition is that the mistake must be
a reasonable one. This will be mainly a question of fact.
But in extreme cases the jury may be assisted by the judge's
directions as to some mistakes being clearly reasonable and
some others clearly unreasonable. Of the former class an
illustration is related by Sir Michael Foster^ A man, before
going to church, fired off his gun, and left it empty. But
during his absence some person went out phooting with the
gun ; and, on returning, left it loaded. The owner, late in
the same day, took up the gun again; and in doing this,
touched the trigger. The gun went off, and killed his wife,
who was in the room. Foster held that in these circumstances
the man had reasonable grounds to believe that the weapon
was not loaded. The case might well have been otherwise
if weeks, instead of hours, had elapsed between his firing off
the gun and his subsequently handling it without taking any
pains to see whether it had meanwhile been loaded again*.
Similarly in an American case', where a constable was charged
with arresting a man unlawfully, it appeared that the man
had fallen down in the street in a fit, and his friends had
first tried to revive him by administering whiskey, and then
had gone away to seek help. The constable was acquitted ;
for the fact that the man smelt of whiskey afforded reasonable
ground for supposing his insensibility to be due to intoxi-
cation (which would (juitc have been a lawful ground for
taking him into custody).
1 Rex V. Levett, Cro. Car. 538 (K. S. C. 26).
a Supra, p. 41, and p. 48. » Foster 2G5 (K. S. C. 27).
* Contrast Reg. v. Jones, 12 Cox 628 (K. S. C. 28) ; The State v. Bardie,
10 Ruunells 647 (K. S. C. 123) ; cases where a mistaken belief that the liiearms
were unloaded was unreasonable.
* Commonwealth v. Fresbij, 14 Gray 65.
iv] Mistake of law 67
On the other hand, no^ belief \vhi<h has now come to .
be currently regarded as an obsolete superstition can be
treated as a mistake sufficiently reasonable to excuse a crime ^,,^uJaty
which it may give rise to. Thus in 1880, at Clonmel, a /
woman who had placed a child naked on a hot shovel, in the
honest belief that it was a deformed fairy sent as a substitute
for the real child, (who would be restored if the changeling
were thus imperilled), was convicted and was sentenced to
imprisonment. So, in 1895, again at Clonmel, were men
who had caused the death of the wife of one of them by
holding her over a fire and searing her with a red hot poker,
in the honest expectation of thereby exorcising a demon that
was supposed to possess her^ A nd even peop le who break , , ,
the^a w in con sequence of a belief that they are obeying
a Divine command, are legally regarded as actuated by a.
mistake which is " unreasonable." Illustrations are afforded
in America by the prosecutions of Mormons for polygamy";
and in England by the prosecutions of the " Peculiar People" v-^^'Oa^
for withholding medical aid' from their sick children. (At iQiik
the same time it must be remembered that some religious
delusions may be of so extreme a character as to be evidence
of insanity, and to afford a good defence upon that grounds)
(3) The final condition is, that the mistake, however
reasonable, must not relate to matters of law but to matters
of " fact." For a mistake of law, even though inevitable, is
not allowed in England to afford any excuse for crime.
Ignorantia jui'is neniinem excusat^. The utmost effect it
^ In 181)-i an Indian was convicted in Canada who had killed a man
under the belief of his being an evil spirit that would attack human beings;
Rep. V. Machekequoiiahe, 2 Canadian Grim. Ca. 138.
2 Beynolds v. United States, 98 U. S. 145 (K. S. C. 31).
3 Infra, p. 122.
* Hex V. Hadfield, 27 St. Tr. Compare C. C. Sess. Pap. cliv. 357.
' For a discussion of the justifications, that may be offered for this severe
rule, see Austin's Jurisprudence, Lect. xxv., and Markby's Elemetits of Law,
sees. 269, 270. Perhaps after considering them all, the student may still
5—2
68 Misfalr of laio [ch.
can ever have is that it may occasionally, like drunkenness',
rebut the existence of the peculiar form of mens rea which
some particular kind of crime may require. Thus larceny
can only be committed when a thing is stolen without even
the appearance of right to take it ; and, accordingly, a bond
fide mistake of law, if based upon reasonable grounds, — like
that of a woman who gleans corn in a village where it is the
practice to do so — will afford a sufficient defence''. Similarly
nv-^ a mortgagor who, under an invalid but bond fide claim of
^ right, damages the fixtures in the house which he has
mortgaged, will not be guilty of " malicious " damage'.
Apart, however, fz-om these exceptional offences, the rule
which ignores mistakes of law is applied with rigour. A sailor
has been convicted of an offence that had been forbidden only ^Ua ^
by an Act of Parliament of which he could not possibly y^/y
know, since it was enacted when he was far away at sea, and . j
the offence was committed before the news of its enactment . ; M*. •
could reach him*. Frenchmen, who had acted as seconds in "^"^^^
a fatal duel here, have similarly been committed for trial l^^^uM
f on a charge of murder, although their o^^^l law permitted i?ip«^T<«
•^^^ duelling and they did not know that English law forbade /"-^ ^'^iiW<
^c it*. Various Italians have recently been punished in London
^ for keeping lotteries, in spite of their urging that in Italy
every little village possesses a lottery sanctioned by the
State, and that they had no idea that the English law could
be different. It is therefore easy to see that a veterinary
surgeon's mistaken belief that an operation, which he knows
feel compelled, with the late Prof. Henry Sidgwick, to regard tlie rule as
" not a reiilif?ation of ideal justice, but an exercise of Society's right of self-
preservation." For the milder principles adopted in ]{oman Law see
Justinian's Digest, xxii. 6, and Lindley's Jurisprudence, p. 24. and App. six.
^ Supra, p. 61.
- IiiJ'.a, p. 203.
» Beg. V. Croft, [1889] C. 0. C. Sess. Pap. cxi. 202.
* Rex V. Bailey, R. and R. 1 (K. S. C. 2'J),
* Banoneis Case, 1 E. and 13. 1.
iv] Mistake of law 69
to be painful and purpose! ess S is nevertheless unpunishable
legally, will atiord him no defence for performing it. Again,
where a Parliamentary elector, who had a qualification in each
of three polling-districts of the same county constituency P
and accordingly was on the register of each, voted at all the Y
three respective polling-stations, but in the honest and not
unnatuial belief that he could legally do so, he was held
by Stephen, J., to have no legal defence for this criminal
conduct*.
These mistakes are reasonable enough; yet they afiford
no excuse. Nor would they do so, even if the prisoner could
shew that he had taken pains to obtain a lawyer's advice
and had been misled by it. Still less, therefore, can any
excuse be conferred by legal errors that are unreasonable.
Some such occasionally occur in connexion with the law of
Marriage. In a trial for bigamy, which I witnessed at the
Central Criminal Court in 1883, it appeared that not only
the prisoner himself, but also his first wife and all her
family, had believed his marriage mth her to be void, be-
cause the wedding-ring was only of brass and not of gold.
In a much more recent case, where the first marriage
was between a Catholic and a Protestant, the parties had
believed it to be invalid because they had gone through
a Roman Catholic marriage alone, and had not superadded
a Protestant ceremony^-
But although mistakes of law, unreasonable or even
reasonable, thus leave the offender punishable for the crime
which he has blundered into, they may of course afford good
grounds for inflicting on him a milder punishment"".
* In England dishorning cattle is decided to be tlins illrrral, Ford v.
Wdey, L. K. 23 Q. B. D. 203; though held legal in Scotland and Ireland, 23 Ir.
L. R. Q. B. 204. It is an embarrassing but unsettled question whether the
Jewish mode of slaughtering cattle is illegal in England.
2 Ite(j. V. Ilearn, C. C. C. Sess. Pap. cm. 561.
8 Cf. L. R. [1893] P. 85. * Bex v. Esop, 7 C. and P. 45G.
70 Public subjection [CH.
in. Where the will is overborne by compulsion.
(1) Public civil suhjecHonK This rarely atfords any
defence in English law. Though the King can do no wrong,
either civilly or even criminally, — or, rather, because the
King can do no wrong — his subordinates must be held
strictly accountable for any wrongs they may commit on
his behalf. Hence a soldier or sailor or constable, who
unlawfully does violence to any one, cannot simply plead
as a defence that he was acting under orders from his
superior officer, or even from the King himself*.
Of course such orders, when not obviously unlawful, may
be relevant to his defence under some more general rule of
law. They may give him such a " claim of right' " as renders
it no larceny for him to appropriate another man's goods ; or
such grounds for supposing his conduct to be lawful as will
render his Mistake of Fact* a valid defence.
And, more than this, by a special rule as to Public Sub-
jection, a Mistake even of Law may afford a defence to a
public servant who has obeyed unlawful orders under a reason-
able (though mistaken) belief that they were lawful. Thus
when violence is exercised by a gaoler or hangman in carrying
out an invalid sentence, then, though the violence was
criminal, yet if the Court which passed the sentence had
jurisdiction over the offence, and the sentence had all
reasonable appearance of validity, the man's public official
subjection affords him immunity*. And a marine who, to
obey orders, shoots a boatman who insists on rowing up to
the ship, seems^ not guilty of murder if he knew that the
1 4 Bl. Conim. 28.
2 Infra, p. 77; cf. Pollock on Torts, ch. 4, s. 1. See Hallam's Constitu-
tional Hintory, ch. i. p. 3, and ch. vii. p. 526, as to this peculiarly English
check upon royal authority. * Infra, p. 203. * Supra, pp. 65— (59.
6 9 Coke 68; 1 Hale 490 ; 1 Hawkins, ch. 28; 1 East P. C. 331. See the
authorities cited in Marks v. Frogley, L. K. [18'Jl] 1 Q. ii. at p. 404.
« Rex V. Thomas (3 Russell on Crimes 94). Cf. Rerj. v. Smitli, 17 Cape
of Good Hope 561, K. S. C. 00; Rex v. Behher, 18 South African Law
Journal 421 ; and Stephen's Hist. Cr. Law, i. 205.
iv] Private subjection 71
orders were given lest tlie boatman should promote a mutiny
on board ; for such orders he mi(,dit reasonably fancy to be
lawful. Yet he would be guilty if he knew them to be given
from a mere desire to keep the ship agreeably isolated.
There is not yet, however, any conclusive English authority
for thus extending to the military and naval forces the im-
munity which the common law conceded to gaolers and other
civil functionaries. And the courts of the United States
have repeatedly refused to recognize any such extension ;
and insist that a soldier or sailor cannot plead his com-
mandei-'s orders as a defence unless they not merely seemed
to be legal but actually were so. See United States v. Jones
(3 Washington 218); Commomuealth v. Blodgett (12 Metcalf
56) ; and United States v. Carr, A.D. 1872 (1 Woods 480).
(2) Private civil subjection is of little more importance as
a ground of defence than public is. It afifords no exemption
to servants or children who commit crimes at the instigation
of a master or a parent. Itjs_iinl^Lin_tIie case of conjugal
subjection that it ever amounts to a defence. For if a wife^
commits an ordinary felony ni her husband's actual presence
and by his instructions, she is presumed prima facie to have
committed it under such a compulsion as to entitle her to
be acquitted ; though there be no proof of any show of in-
timidation by him. (Yet for any crime committed by her
when he is not actually present, his previous orders or threats
would afford her no more excuse than those of any other
instigator would do.) This_presumption of coercion extends,
(so the majority of waiters - assert), to all misdemeanors,
except those that are connected with the management of the
house (for in that matter the wife is assumed to be the
person chiefly active). And it extends to most felonies',
e.g., to burglary, larceny, forgery. But it d^s^ no_t_ extend to
felonies that are of extreme gravity, such as treason and
1 Not a mere concubine ; Rex v. Court, 7 Cr. App. R. 127.
■•' Cf. lieg. V. Torpty, 12 Cox 45; Heg. v. Price, 8 C. and P. 19.
3 Kel^iig 31 (K. S. (J. G6). In laUl Cave, J., allowed it in arson.
72 Hiishand and wife [ch.
murder ; though the exact line of demarcation has not yet
been drawn. Even, however, where the defence is admissible,
this presumption of subjection is only & prima facie one. lb
may be rebutted by proof that the wife took so active a part
in the crime as to shew that her will acted independently of
her husband's'.
The singular privilege thus accorded to the wife, yet
denied to the child, admits of a curious historical explanation.
" Benefit of clergy " — the right of any man, who could read,
to escape capital punishment — was denied to women'-. Hence,
whenever a man and his wife were charged with jointly
committing any felony, the man, if he could make a semblance
of reading, would get off, whilst the woman, though probably
the less guilty of the two, would be sentenced to death. This
injustice was evaded by the establishment of this artificial
presumption of conjugal subjection.
It may perhaps be convenient, though not strictly
relevant, to mention here that, besides this general exemp-
tion on the ground of mens rea, there are a few cases in
which even an act itself, otherwise criminal, that has been
done by a wife, will cease to be reiLS because of its connexion
witli the relations between her and her husband. Thus, if
a husband who has committed a crime is received and
sheltered by his wife, she is not regarded by the law as
becoming thereby an accessory after the fact (or a par-
ticipator in his treason) ; " for she is sub potentate viri, and
bound to receive him." Again, in consequence of the con-
jugal unity by which the married pair are — for many pur-
poses — regarded in law as constituting only a single person,
no criminal agreement to which they are the only parties
can amount to the crime of conspiracy ; for a conspiracy
1 Reg. V. Cruse, 2 Moody 53 (K. S. C. 66).
■ Hence under Charles II. and James II., though (just as now) few women
were tried, they usually formed about two-sevenths — sometimes even a
majority— of those sentenced to death at each Old Bailey sessions.
iv] Duress hji Threats 73
needs two conspirators. And, similarly, a libel published
against a husband by his wife, or one on a wife published
by her husband, constitutes no offence^
(3) Duress per minas is a very rare defence ; so rare
that Sir James Stephen, in his long forensic experience, never
saw a case in which it was raised. Consequently the law
respecting it remains to this day both meagre and vague. It
is, however, clear that threats of the immediate infliction
of death, or even of grievous bodily harm, will excuse some
crimes that have been committed under the influence of
such threats. It is impossible to say with precision for ;-
what crimes the defence will be allowed to avail. It certainly
will not excuse murder. Yet it may excuse the still graver
ofifence of treason, though only in its minor forms : as where
a prisoner shews that under pain of death, or of some physical
injury falling little short of death, he was forced into giving
some subordinate assistance in a rebellion. But he must
shew that the compulsion continued throughout the whole
time that he was assisting; and that he did no more than
he was obliged to do ; and that he desisted at the earliest
possible opportunity". Moreover, according to Sir James
Stephen, this defence is admissible only where the prisoner
has been threatened by a plurality of persons. Yet it would
seem, on principle, that two persons may differ so much in
strength, or in weapons, that a degree of compulsion sufficient
to exempt may have been exercised by one of them over the
other, although there was but this single threatened
Fears of some lesser degree of violence, insufficient to
excuse a crime, may nevertheless mitigate its punishment.
It was remarked by Lord Denman that, wherever there are
two criminals, one of them is always to some extent in
terror of the other, hi such a case the timid rcgue will
» Eeg. V. Lord Mayor of Loudon, L. R. 16 Q. B. D. 772.
2 Eex V. McGrowther, Foster 13 (K. S. C. 5G); cf. supplies, or transport-
service, requisitioned by an occupying Invader.
74 Necessit}/ [ch.
usually deserve a less severe punishment than his masterful
associate.
(4) Necessity. The fact that a man who has inflicted
harm upon another's person or property, did so for the
purpose of saving the community from a much afreater
harm, has from early times been rec(JC[iiised as a defence m
civil actions, brought to recover compensation for the harm
thus inflicted'. It is admittedly no tort to pull down houses
to prevent a fire from spreading'', or to enter a person's house
to put out a fire. It is therefore natural that such necessity
should be still more readily admissible as a defence to
criminal proceedings; both because in them the object is
not to compensate mere loss but only to punish actual guilt
(which here seems almost or altogether absent), and also
because punishment itself must fail to attain its great object,
that of Deterrence, in those cases of necessity where the
evil it threatens is less than the evil which would have been
suSered if the crime had not warded it off. A person who
violates some municipal bye-law, or commits some similar
trivial offence, for the purpose of saving life — who goes at
night, shall we say, on a lampless bicycle to fetch the fire-
engine — would seem to have a valid legal excuse. Yet
though theoretical writers have been willing to accept this
ground of defence, the actual law on the subject is extremely
scanty and vague. Indeed there is no English case in which
the defence has actually been raised with success. Yet
Lord Mansfield gave an obiter dictum that even an act of
treason, like the deposition of a colonial governor by his
Council, might, in some circumstances of public danger, be
justified by its necessity ^ It has always been thought that
if provisions run short during a voyage, the captain of Lhe
^ For necessity as a civil defence, see Pollock on Torts, (Jth ed. p. 108.
2 Dyer .36 h. See Kenny's Select Cases on Torts, pp. 101—170.
' Hex V. Stratton, 21 St. Tr. 1222. The correctness of this dictum was
conceded by Lord Coleridge in lieg. v. BudUy; (see next paye).
iv] . NecessUfj 7 b
ship commits no larceny by breaking into the cargo to feed
his crew. In Gregson v. Gilbert^, which was an action on
a policy of marine insurance to recover the value of a hundred
and fifty slaves, who had been thrown overboard during a
voyage because the casks of water were running short and
a hundred slaves had already died of thirst, no doubt was
suggested, either by the Court or even at the bar, as to
extreme necessity being capable of excusing even so awful
an act as this. But there the question of criminal liability
did not directly arise; and now, since Reg. v. Dudley, it
seems that the criminal law would concede no exemption,
on the ground of necessity, for such an act of homicide.
It is clear that no such ground of defence can be accepted
in any case (1) where the evil averted was a less evil than the
offence committed to avert it, or (2) where the evil could
have been averted by anything short of the commission of
that offence, or (3) where more harm was done than was
necessary for averting the evil. Hence it is scarcely safe
to lay down any more definite rule than that suggested by
Sir James Stephen, viz. that " It is just possible to imagine
cases in which the expediency of breaking the law is so
overwhelmingly great that people may be justified in
breaking it ; but these cases cannot be defined beforehand I"
Each particular instance, as it arises, must be considered
upon its own merits; whether by a jury in forensic routine,
or by the Crown as a matter of special grace.
In the only English case where this defence has been
expressly raised, it failed'. Three men and a boy escaped
in an open boat from the ship'vvreck of the yacht Mignonette.
After having passed eight days without food, the men killed
the boy in order to eat his body. Four days later, they
were rescued by a passing ship. On their arrival in England,
1 3 Douglas 232.
a Hist. Grim. Law, n. 109.
» Reg. V. Dudley and Stephens, L. K. 14 Q. B. D. 273 (K. S. C. 61).
76 Necessitif [ch.
two of the men were tried for the murder of the boy. Their
counsel reminded the court that Lord Bacon had suggested^
that if two ship-svrecked men were clinging to a plank which
was only sufficient to support one, and one of them pushed
the other off, he would be exempt from any criminal liability,
because his conduct was necessary to save his life. But the
Court of Queen's Bench declared emphatically that there
is no general principle of law which entitles a man to take
the life of an innocent person in order to preserve his own.
It was pointed out by the court that Lord Bacon's similar
statement* that it would be no crime in a starving man to
steal food to satisfy his hunger and so preserve his life, iiad
been scouted by Sir Matthew Hale*; and if necessity could
not excuse theft, it certainly could not excuse murder. The
court appears to have been willing, if necessary, even to
overrule Lord Bacon's dictum about the plank ; but Sir J.
Stephen considers that their actual decision does not go so
far as to overrule it. For, as he points out, the accused man
does no direct bodily harm to the other, but leaves him still
the chance of getting another plank ; whereas in the Migno-
nette case the boy was actually killed ; and, moreover, by men
who did it for the sake of avoiding a starvation which the
jury only found to have been otherwise '' 'probable" not other-
wise "inevitable^."
1 Maxims, reg. 5.
" Reg. 5. Cf. Grotius, De Jure Belli, i. 4. 7. 1, ii. 2. 6. 2.
8 Hale's Pleas of the Crown, 54. Much legal controversy has recently
been aroused in France by a judgment in which the Court of Appeal at
Amiens acted (April 23, 1898) upon Bacon's lenient principle. Hale's view
seems, however, to be the one more generally adopted by French judges.
* Stephen, Dig. Cr. Law, Art. 33. He also maintains that the circum-
stances of Reg. V. Dudley distinguish its principle from many cases in
which there is a choice of evils; for instance, from cases where an
accoucheur finds it necessary to destroy a cliild at the approach of birth in
order to save the mother (an act that is never made the subject of a prosecu-
tion). Still more readily would he distinguish it from tliose in which the
question is not which one shall live, but whether any shall live ; as where
iv] The King's immunity 77
From the scantiness of the recorded authorities upon this
subject it will readily be seen that the defence of necessity,
even if it be a possible one, is at least extremely rare. The
question of its possibility can only be important in the few
crimes where, as in capital offences, there is a prescribed
minimum of punishment: for every judge would take the
extremity of the offender's situation into account, by re-
ducing the sentence to a nominal penalty, wherever he has
the power to do so.
Where immediate death is the inevitable consequence of
abstaining from committing a prohibited act, it seems futile
for the law to continue the prohibition. For if the object
of punishment be only to deter, then it must be a useless
cruelty to inflict or to threaten any punishment the threat of
which cannot have the effect of deterring^ Hence, perhaps,
it is that in the United States the defence of Necessity seems
to be viewed with favour^
To these three groups^ of cases where unquestionably
a criminal act goes unpunished for lack of the necessary mens
rea, Blackstone adds a supposed fourth one : — " Wbere the
will is too perfect to do vo-ong." For*, by a totally unneces-
sary legal fiction, he ascribes the King's unquestionable im-
munity from criminal liability to an imaginary " perfection "
in his will, which Blackstone supposes to render him in-
capable of mens rea. But it is clear that our law does not
three mountaineers are roped together, but two of them slip, and the third
cuts the rope to save himself from being dragged to death with them.
^ See Moriaud's able monograph, Le delit necessaire. At the court-
martial held {Times, July 28, 1893) in consequence of the collision in which
the Victoria was sunk, it was shewn, from the official Directions, that
naval discipline regards even disobedience to an Admiral's orders as being
excusable by necessity, e.g., the paramount necessity of not endangering the
safety of a ship.
2 Commonwealth v. Brooks, 99 Mass. 434; State v. Wray, 72 N. C. 253
etc. So too in the penal codes of Italy (s. 49) and Germany (s. 54).
* See above, p. 49. * 4 El. Comm. 32.
78 The King's iniimuiity [ch. iv
really regard the King as incapable of committing crime ;
inasmuch as, though it will never punish him, it would
readily punish, as an accessory before the fact, any evil
counsellor who might prompt him to a crime. The King
has indeed himself an exemption from liability; but it is
sufficiently explained by the absence, in our Constitution, of
any tribunal possessed of jurisdiction to try him. It is thus
a mere matter of adjective law; and not the result of any
fiction in our substantive law.
But, whichever be the proper branch of law to class it
under, the exemption itself is dictated by a wise policy.
Almost every nation has considered it necessary to clothe its
Chief Magistrate with this immunity. (It is true that in the
United States the personal responsibility of the President for
any crimes he may commit is fully recognised^; but the
particular circumstances under which the States framed
their constitution sufficiently account for this unusual
liability.) At the trial of Charles I, even the Parliament's
counsel admitted'' the correctness of a judicial dictum, of
Henry VII's time, that "If the King should, in passion, kill
a man, this would be no felony for which to take away the
Kings life."
The like immunity conceded to every foreign sovereign
and his ambassadors and their suites, whilst resident in this
country, must be remembered'. In some recent cases of the
unlawful driving of motor-cars, it has had practical results.
1 Constitution of U.S.A., art. n. s. 4. Cf. The Fedemlint, no. fi9.
* 4 State Trials, 1034. Cf. Anson's Law of the Constitution, ii. 4, 453.
' Hall's International Law, ii. 4. 49, 50; Westlake's International Law
of Peace, chap. xi. In Lord Halslniry's Latvs of England the iuimiinity of
ambassaJora and ihuir suites is asserted at vi. 42'J, k'ii'l ; Lut denied at ix. 245.
Bee the Times of Oct. 27, 1896 as to the kidnapping of the famous Sun
Yat Sen in the London residence of the Chinese Legation.
As to senii-sovereifin rulers, like the protected Indian princes, see
Statham v. Stathavi, L. B. [1'J12J l>. U2.
CHAPTER Y.
INCHOATE CRIMES.
We have seen that where there is merely mens rea, there
is no crime at all. But though an actus reus is thus neces-
sary, there may be a crime even where the whole of the par-
ticular actus reus that was intended has not been consummated
If an assassin misses the man he shoots at, there is clearly no
murder ; but nevertheless a crime has been committed. For
the law will punish acts that constitute even a very early
stage in the preparations for an indictable crime.
But, just as the mere mens rea is not punished, so neither
are the earliest conceivable stages of the actiis reus. There
is thus, as a general rule, (leaving out of view, at present,
the anomalous case of Treason), no criminal liability where
a mens rea has only been followed by some act that does
no more than manifest the mens rea. Liability will not
begin until the offender has done some act which not only
manifests his mens rea, but also goes some way towards
carrying it out. Three classes of merely incipient or in-
choate crimes proceed far enough to become punishable: —
Incitements, Conspiracies, Attempts.
(1) In Incitement, the act takes the form of soliciting \
some other person to commit a crimed This is a mis-
demeanor-, even though that person never does commit i
the ultimate crime thus suggested to him». If he do commit <
1 Bex V. Biggins, 2 East 5 (K. S. C. 83). But this desired crime must
be an indictable one.
2 Punishable with fine and imprisonmi^nt.
8 Ii,';l. V. Gregory, L. B. 1 C. C. E. 77. Or even could not commit it.
63 J. P. 790.
80 Attempts [ch.
it, the inciter becomes still more guilty; being liable as
an "accessory before the fact'," if the suggested crime be
a felony, and liable as a principal offender, il' it be a mis-
demeanor.
(2) In Conspiracy^; the mere agreement of two or more
persons to commit a crime is regarded by the law as an act
sufficiently proximate to the contemplated offence to render
these persons guilty at once of a crime. Even a conspiracy
to do no more than incite some one else to commit a crime,
would be criminal.
(3) Attempts constitute the most common form of in-
choate crime. They consist in some physical act which
helps, and helps in a sufficiently "proximate" degree, to-
wards caiiyiiig out an mdictahle crime that is contemplated.
But no abstract test can be given for determining whether
an act is sufficiently proximate to be an " attempt." It is
clear that mere preparations for the intended crime, ante-
cedent to the actual commencement of the crime itself, do
not amount to an indictable attempt. Thus if a man, who
contemplates murder, buys a pistol and takes a railway
ticket to the place where he expects to find his intenddl
victim, these are mere acts of Preparation, too remote from
the actual offence to constitute an attempt. But if, on
meeting the victim, he points the pistol at him and puts his
finger on the triggei-, he does acts which are a part of the
offence of murder— and, similarly, of that of shooting with
intent to wound^ — and certainly will amount to an " attempt "
to commit either of those two crimes.
So ag.iin, taking an impression in wax of the lock of
a door in order to make a key to fit it, may constitute an
1 Infra, p. 86.
• Ii\fra, p. 287. In a Conspiracy {unlike Incitement and Attempt) the
crime aimed at need not be an indictable one ; and, as in Incitement and
Attempt, it need not be a possible one (see Wills, J., 24 Q. B. D. at p. 421).
3 Reg. V. Duckworth, L. R. [1892] 2 Q. B. 83.
v] Attempts 81
attempt to commit burglary; for the only object of such
a proceeding must be to open the door in question. But
buying a box of matches would not be an act sufficiently
proximate to the offence of arson to constitute an attempt
to commit it ; for it is an ambiguous act, not necessarily
referable to that crime, or to any crime at all. On the other
hand, actually striking one of the matches, for the purpose of
setting fire to a haystack, would be a sufficient " attempt " to
commit this arson'. And it will remain so, even if the match
goes out — or is snatched away from the prisoner, or is thrown
away by him on finding himself detected — before any hay
has caught fire at all.
Another illustration of this dividing line may be found
in cases relating to the publication of seditious or defamatory
books. Merely to preserve such a book, even with a view
to publish it, is not an attempt at publication, but procuring
such a book with intent to publish it, would bel
It was for a time thought that a person could not be con-
victed of an attempt unless the attempted act were possible.
Thus for a thief to put his hand into a person's pocket which
happened to be empty, was not regarded as amounting to
an attempt to commit larceny*. This doctrine has, however,
been definitely overruled^
The offence attempted may itself be only an inchoate
form of crime. Thus a conviction may be obtained for an
attempt to incite, or an attempt to conspire. But, as it is
of the essence of an attempt to be itself merely inchoate,
it will be a good defence to an indictment for an attempt
if the prisoner can shew that he actually completed the in-
1 Reg. V. Taylor, 1 F. and F. 511. Cf. infra, p. 250.
2 Contrast, similarly, 11 Cr. App. E. Ill with 11 Cr. App. R. 121.
« Reg. V. Collins, L. and C. 471. Nevertheless it was punishable as an
•'assault with intent to commit a felony" {infra, p. 168).
* Reg.y. Brown, L. R. 24 Q. B. D. 357 ; Reg. v. Ring, 61 L. J. R. (M. C )
116 (K. S. C. 88).
K. 6
82 Attempts [ch. v
tended crime. For, thereupon, the attempt became merged
in the greater offence^ ; and he must be reindicted if he is
to be punished. li', however, on the other hand, a man
indicted for some crime turns out to have done no more
than attempt it, it is now provided by statute'' that he may,
even on the original indictment, be convicted of the mere
attempt; thus avoiding the trouble of a new indictment
and a new trial.
At common law, every attempt to commit any indictable
crime, whether that ulterior crime be felony or misdemeanor,
is itself a misdemeanor*; and is punishable with fine and
imprisonment (to which, since the Criminal Justice Ad-
ministration Act, 1914, hard labour may, in all cases, be
added; see p. 314, infra).
By statutes some particular attempts have themselves
been made felonies ; thus, every attempt to murder is now a
felony, and punishable with penal servitude for life^.
1 Rex V. Higgins, 2 East, at p. 20, per Grose, J.; Reg. v. Meredith,
8 C. and P. 589. Similarly an Incitement will merge in the completed
crime. But a Conspiracy will not; see p. 288 iiifra.
« 14 and 15 Vict. c. 100, s. 9. * Reg. v. Hensler, 11 Cox 570.
♦ 24 and 25 Vict. c. 100, s. 11. This does not include attempts to commit
suicide; see p. 114 iii/ra.
CHAPTER YI.
THE POSSIBLE PARTIES TO A CRIME.
Crimes are often grouped by English lawyers into three
classes — Treasons, Felonies, and Misdemeanors. In the
gravest, and also in the least grave, of these three, no legal
distinction, either of substance or even of form, is drawn
between the various recognised modes of taking part in the
commission of them. For the guilt of even the slightest
share in any Treason is regarded as being so heinous that it is
needless to distinguish it from still deeper shades of guilt.
And, on the other hand, no activity in a mere Misdemeanor
is considered heinous enough to make it worth while to draw
a formal distinction between it and any less prominent mode
of taking part in the offence. Hence if a crime belongs to
either of these two opposite extremes, all persons who are
concerned in it in any way — whether by actually committing
it, or only by keeping near in order to assist whilst it is
being committed, or merely by suggesting its commission —
are indiscriminately classed together by the law as being
alike " principals " in the offence.
But the intermediate group of crimes, viz., Felonies,
appeared to be neither so grave nor so trivial as to make^
it useless to take some formal notice of the gradations of
guilt that arise from the variety of ways in which men may
be concerned in them. And in the case of Felonies these
distinctions still continue to be drawn, though their practical
^ See Stephen, Hist. Crim. Law, n. 221 — 241; Digest Crim. Law, Arts.
36—47 ; Pollock aud Maitland, ii. 507—509.
6—2
84 Privcipal in first deyree [cu.
importance has now almost entirely disappeared. An
accurate comprehension of them is, however, still of great
value to the student as cnahling him, not merely in Felonies
but also in Treasons and Misdemeanors, to trace with
precision the lines at which the law ceases to take notice
of participation in a crime — the stages, in other words, where
Complicity ends and Immunity begins. Four several ways
of taking part in a felony are recognised : — (1) as a principal
in the first degree, (2) as a principal in the second degree,
(3) as an accessory before the fact, (4) as an accessory after
the fact.
(1) By a iirincipal in the first degree, we mean the
actual offender — the man in whose guilty mind lay the latest
blameable mental cause of the criminal act. Alinost always,
of course, he will be the man by whom this act itself was
done. But occasionally this will not be so; for the felony
may have been committed by the hand of an innocent agent
who, having no blameable intentions in what he did, incurred
no criminal liability by doing it. In such a case the man
who instigates this agent is the real offender; his was the
last mens rea that preceded the crime, though it did not
cause it immediately but mediately. Thus if a physician
provides a poisonous di-aught and tells a nurse that it is
the medicine to be administered to her patient, and then by
^^ her administration of it the patient is killed, the murderoufi
physician — and not the innocent nurse — is the " principal in
the first degree V Similarly, if a man sends a six-year-old
child into a shop to steal something off the counter for him,
the man and not the child will be principal in the first
degree in this thefts By like reasoning it has been decided
that if you hand in to your master's book-keeper a lying
statement of money matters, and he believes it and makes
entry of it, you are yourself indictable for the offence of
» Kelyng 52 (K. S. C. 79) ; Jicx v. Saunders, i-'oster '371 (K. S. (J. 61;.
» Uey. V. Mauley, 1 Cox lOi (K. S. C. 7b).
./
vi] Principal in second degree 85
" falsifying " the master's account-books in which the untrue
statement was so entered ^ Even an animal may be em-
ployed as an "innocent agent." For, just as anyone who
sets a dog upon people is himself guilty of assaulting them,
so any one who should send his trained retriever to purloin
meat from a butcher's stall, might be convicted of the larceny
of the meat, as a principal in the first degree ; and this, even
though he were far out of sight when the dog took it.
There may, of course, be more than one principal in the
first degree. Thus all the members of a gang of poachers
may have fired simultaneously at the keeper who has sur-
pi'ised them. Or both the father and the mother of a little
child may have together sent it into a shop to steal for them;
or may have together concurred in starving it. And persons
may be thus joint principals in the first degree, even though
one of them commits his share of the crime in one town
whilst his colleague commits his in quite a different one^
(2) A principal in the second degree is one by whom
the actual perpetrator of the felony is aided and abetted at
the very time when it is committed. (In early law he was
not ranked as a principal at all, but only as a third kind
of accessory — the accessory at the fact.) This subordinate
principal may or may not be actually present at the scene of
the crime. Instances of persons who aid and abet a felony
at the place itself^ are afforded by the seconds in a prize-
fight which ends fatally ; or even by mere spectators if they
actively encourage such a contest. But a spectator's presence
at a prize-fight does not of itself constitute sufficient en-
couragement to amount to an aiding and abetting*, and
therefore does not necessarily make him punishable as a
party to it. On the other hand, a man may etfectively aid
1 Reg. V. Butt, 15 Cox 564. 2 ^gg_ y. KeUy, 2 Cox 379.
» Reg. V. Swindall, 2 C. and K. 230 (K. S. C. 74). Coutxast Rex v.
Mastin, 6 C. and P. 396 (K. S. C. 77).
■* Reg. V. Coney, L. R. 8 Q. B. D. 534.
86 Accessory before the fact [ch.
and abet a crime, and at the very moment of its perpetration,
,f> i without being present at the place where it is perpetrated.
VN - Thus, when A is inside a house, committing a burghiry, B and
\ \^^ G may be waiting outside it, ready to help him in carrying
^ off the plunder or to protect him by giving warning of the
approach of the police'. A prize-fight will usually have
sentinels thus on the alert. In a case in Ohio, a man who
invited a shop-keeper to accompany him to a convivial
gathering, and took care to keep him agreeably occupied
at it while some accomplices broke into his shop, was held
to have been giving, even at the moment of the burglary,
a sufficiently effective assistance in it to render him a
principal in the second degreed
An aider and abettor is only liable for such crimes com-
mitted by the principal in the first degree as were done in
execution of their common purpose. Thus^jf burglars find
themselves interrupted by the master of the house which
they have broken into, and one of them shoots him, the other
burglar will be in no way liable for this murder, unless they
had jointly resolved to resist interruption at any cost.
(3) An accessory before the fact is a person who procures
or advises' one or more of the principals to commit the felony*.
This definition requires firom him an instigation so active that
a person who is merely shewn to have acted as the stake-
holder for a prize-fight, which ended fatally, would not be
punishable as an accessory. The fact that a crime has been
committed in a manner different from the mode which the
accessory had advised, will not excuse him from liability for
it. Accordingly if A hires B to poison C, but B instead
kills C by shooting him, A is none the less liable as accessory
1 Foster 350. Cf. Jicg. v. Griffith, Plowden 97 (K. S. C. 73).
2 Breese V. Stale, 12 Obio 146.
3 Even to know of an intended crime and furnish means tor it, is not
enough; instigation is necessary: Rex v. Loma^, 9 Cr. App. 220. Cf. L. and
C. 161. , , „/•
* Therefore there can be no accessory before the fact m ' ' voiuutaiy {i.e.,
unpremeditated) manslaughter.
vi] Accessory before the fact 87
before the fact to (7's murder. But a man who has coun-
selled a crime does not become liable as accessory if, instead
of any form of the crime suggested, an entirely different
offence is committed. An exception, however, arises where
the crim e counselled -^as one which was itself likely to cause
this other crime that actually was committed ; for if, when
A has hired B to murder G, B by mistake kills G'q twin
brother D instead, A may be convicted as an accessory to D's
murder. Yet in Saunders Case\ where one man had insti-
gated another to give a woman a poisoned apple, but she
innocently handed on this apple to her child, who died from
eating it, there was held to be no such likelihood as would
render the original instigator an accessory to the murder of
the child.
The student should notice that in criminal law the word
"principal" thus suggests the very converse of the idea which
it represents in mercantile law. In the former, as we have
seen, an accessory proposes an act, and the "principal" carries
it out. But in the law of Contract, and in that of Tort, the
"principal" only authorises an act, and the "agent" carries
it out^. Where the same transaction is both a tort and
a crime, this double use of the word may cause confusion.
For example, if, by an innkeeper's directions, his chamber-
maid steals jewels out of a guest's portmanteau, the maid
is the " principal " in a crime, wherein her master is an
accessory before the fact; whilst she is also the agent in
a tort, wherein her master is the " principal."
As we have already seen, to participate in a treason or
a misdemeanor in either the second or the third of the
modes now enumerated would constitute, not only an act of
crime but, an act which the law does not distinguish (as it
does in the case of felonies) from that of the " principal in
the first degree." It is wholly immaterial, for all technical
1 Plowden 475; Foster 371 (K. S. C. 81).
2 South African lawyers use the terms thus, even as to Crimes.
88 Accessory after the fact [ch.
pui-poses, whether a misdemeanant was principal at the fact
or before the fact. But we now proceed to a fourth and
remoter degree of complicity, which in the case of mis-
demeanors' involves no criminal responsibility at all; and
which even in the case of treasons was at one time regarded
as not producing the full guilt of treason itself but only that
of a Misprision — a mere misdemeanor and so not punishable
with death'*.
(4) An accessory after the fact is a person who, knowing
that a felony has been committed, subsequently shelters or
relieves one of the felons (even one who was a mere ac-
cessory') in such a way as to enable him to elude justice*.
He may do this, for instance, by concealing a fugitive
murderer in his house or supplying him \vith the means of
escape", or by helping a convicted murderer to get out of
prison. Active assistance to the felon is thus necessary^
Hence merely abstaining (however wilfully) from arresting
a known felon, and so leaving him to make his escape, is not
enough' to make the sympathiser guilty, as an accessory,
of the felony itself (But it does make him guilty of the
specific misdemeanor of a Misprision of Felony 8, Similar
merely passive connivance in a treason would, in like
manner, be a Misprision of Treason. For crimes so grave
as felonies or treasons ought to be disclosed to a magistrate
by every one who knows of them. But in the case of mere
misdemeanors there is no such duty.) It should be noted
that, since it is a wife's duty to aid her husband and to keep
his secrets, she incurs no liability if, after he has committed
a felony, she shields him from justice, however actively. But
1 Or of the petty offences punishable summarily. Vaugliari's Case,
Popham 134. ^ See p. 278 infra. 3 Coke Inst. 138.
« 26 Lib. Ass. 52. * See 3 Coke Inst. 138; 4 Bl. Comm. 3.
5 Or destroyinfj dangerous evidence, Bex v. Levy, 7 Or. App. R. 61.
6 lieg. V. Chappie., 9 C. and P. 355 (K. S. C. 82).
7 Y. C. 9 Hen. IV. pi. 1. » Infra, p. 277.
vi] Accessortj after the fact 89
a husband enjoys no similar exemption when he assists a
felonious wife ; he becomes accessory to her felony.
Even in felonies but little practical importance now
attaches to the distinctions between the first three of these
four classes of " accomplices " — (a term which the law applies
to all the participes criniims, whatever their degree of " com-
plicity" in the offence, though popular use generally limits
it to those who take only a minor part). For the maximum
punishment prescribed for any given crime is the same in
the case of all three classes. And similarly the mischievous
rule of the old common law, that the accessories to a crime
could not be convicted until their principal was convicted
(though he perhaps might be acquitted utterly unjustly or
might die before he could be arrested), has long ago been
abolished by statute ; so that now all accessories whether
before or after the fact may be indicted even though the
principal felon has not yet been convicted, or even is not
amenable to justice ^ Moreover, by a bold application of
the principle that qui facit per alium facit per se, it has
also been enacted that an accessory before the fact may
even be indicted and convicted as himself a principal*.
But the converse does not hold good ; so, if a principal
is indicted as an accessory he, even now, cannot be con-
victed.
In modem times, the only important surviving difference
between the various grades of accomplices consists in the
fact that a much more lenient punishment is awarded to the
man who is only an accessory after the fact. Instead of
being, like accessories before the fact, liable to the same
heavy maximum of sentence as the principal, he is punish-
able with nothing more than two years' imprisonment, with
or without hard labour ; (except in the case of murder, where
1 24 and 25 Vict. c. 94, ss. 1, 3.
a 24 and 25 Vict, c 94, s. 2. See Rei). v. James, L. R. 24 g. B. D. 439
(K.S.C. 81).
90 Accessory after the fact [ch. vi
the maximum punishment for an accessory after the fact is
penal servitude for life).
It is scarcely necessary to say that a man may be
accomplice in more than one way to the same act of crime ;
and thus he may be convicted on one count as an accessory
before the fact, and on another count as an accessory after
the fact\ For that famous and still mysterious crime, the
murder of Sir Edmondbury Godfrey in 1678, Atkins (the
secretary of Pepys the diarist) was indicted both as an
accessory before the fact and also as a principals
1 8 C. and P. 43. ■' 6 St. Tr. 1491.
CHAPTEK VII.
THE CLASSIFICATION OF CRIMES.
Public wrongs, Pleas of the Crown, or — to use a phrase
more familiar but more ambiguous — Crimes, may be ar-
ranged, according to their technical degrees of importance,
in the following series of groups.
I. Indictable offences; i.e., those which admit of trial
by jury.
(1) Treasons,
(2) (Other!) Felonies,
(3) Misdemeanors.
II. Petty offences ; i.e., those which are tried summarily
by justices of the peace sitting without a jury-.
The word " Crime " is properly applicable to all these ;
and thus, for instance, in the Judicature Act^ the expression
"criminal cause or matter" includes them all. But some-
times more restricted senses have been adopted : as when
Serjeant Stephen, in re-writing Blackstone's Commentaries,
limits " crime " to offences that are indictable ; or when
Blackstone himself goes still further, and limits it to
those indictable offences that are more heinous than mis-
demeanors ^
The two groups, Indictable and Non-indictable, were
originally quite exclusive of each other ; but now they over-
lap to some extent. For, under the Summary Jurisdiction
^ For {infra, p. 92) ''Felony" properly includes Treasons.
'"Misdemeanor" in its toidest sense includes these; L. R. [1907]
1 K. B. 40.
» 36 and 37 Vict. c. 66, s. 47. •* 4 Bl. Comm. 1.
92 Felony and misdemeanor [ch.
AcL 1879, a few commuii indictable offences may in certain
circumstances be tried summarily' instead ; whilst all such
of the petty offences as are heinous enough to admit of
a sentence of imprisonment for over three months i7iay
instead be tried on indictment.
The discussion of the distinction between indictable and
non-indictable offences may conveniently be postponed until
we reach the subject of Procedure, and have occasion to
explain there the modem mode of summary trial which now
so often takes the place of trial by jury. But the mode in
which indictable offences themselves are subdivided springs
from so noteworthy a historical origin^, and produces so
many important consequences, that the consideration of it
.does not admit of being similarly postponed.
Amongst indictable crimes, the common law singled
out some as being so conspicuously heinous that a man
adjudged guilty of any of them must incur — not as any
express part of his sentence but as a consequence that
necessarily ensued upon it — a forfeiture of property, whether
of his lands or of his goods or of both. Such crimes were
called " Felonies." The other, and lesser, crimes were known
as "Transgressions" or "Trespasses"; and did not obtain
their present name of misdemeanors until a much later
date. A felony is, therefore, a crime which either involved
by common law such a forfeiture, or else has been placed
by statute on the footing of those crimes which did involve
it. (This definition, it will be seen, includes treason; and,
accordingly, the Statute of Treasons* speaks of " treason or
other felony." But the differences of procedure between
cases of treason and those of other felonies are so numerous
and important that treasons have usually to be spoken of
1 42 and 43 Vict. c. 49, ss. 10, 11, 12. Infra, p. 433. Four-fifths of all
indictable olleuces prosecuted are so tried. "^ Ibid. s. 17.
s See rollock and Maitland, i. 284—286, ii. 463— 4G8, 509.
* 25 Edw. III. St. 5, c. 2. Cf. Mailland's Collected Papers, i. 316.
vii] Former incidents of felony 93
apai-t; and hence, for brevity's sake, the term "felony" is
commonly employed as exclusive of them.)
The very word " felony " has been said' to contain a
reference to the forfeiture which the crime entailed, and
to be derived from the words fee, i.e., feudal holding, and
Ion, i.e., price ; felony thus being such a crime as " costs you
your property." But according to the Dictionary of Prof.
Skeat the word is derived from a Celtic root, meaning "evil";
(or, according to that of Dr MuiTay, from the Latin fel,
"venom" ); and at any rate it is akin to our English adjective
"fell," as in Shakespeare's "fell and cruel hounds V
Familiar instances of felonies are — murder, m^-nslaughter,
burglary, hou^breaking, larceny, bigamy, rape^ Whilst the
most conspicuous instances of misdemeanors are less heinous
crimes like perjury, conspiracy, fraud, false pretences, libel,
riot, assault. The differences between felonies and mis-
demeanors are no longer so numerous as they once were.
Amongst those, however, that have now disappeared there
are some which still require notice.
(1) Originally, as we have seen, every felony tacitly
produced a forfeiture; whilst no misdemeanor did, and in
extremely few misdemeanors could forfeiture be imposed
even as an express part of the sentence. But all forfeitures
for felony and treason were abolished by the Forfeiture Act
1870 (33 and 34 Vict. c. 23, s. 1).
(2) Originally all felonies (except petty larceny) were
punished with death ; whilst no misdemeanor was^ Hence
the idea of capital punishment became so closely connected
with that of felony that any statute making a crime a felony
made it capital by mere silent implication, whilst in an
enactment which created a mere misdemeanor even the
» 4 Blackstone Coram. 95. ^ Pollock and Maitland, n. 465.
* Heresy (though never a felony) was of course punishable with death ;
but it was an ecclesiastical offence with which the temporal courts had no-
94 Present incidents of felony [ch.
widest general words could not suffice to make it capital\
and nothing but the most express language would suffice.
(3) Originally, a felon could not, at his trial, call any
witnesses in his defence ^ or have any counsel to defend him
(except for the argument of mere points of law); whereas
a misdemeanant, like a defendant in a civil case, could have
both. These disabilities were removed in 1702 and in 1826
respectively.
But the majority of the ancient differences between
felonies and misdemeanors still exist in the law of the
present day. The discussion of most of these may be post-
poned until we reach the general subject of Procedure ; when
we can more appropriately discuss those which relate to such
matters as the mode of accusation ^ the procedure at the
trial*, and the disqualifications produced by a conviction.
But there are some differences which can more conveniently
be considered now.
(1) It is, as we have already seen^ only in felonies that
the distinction between the four classes of participes criminis
is technically drawn, or the fourth class made criminal.
(2) When the Act of 1870* put an end, as we have seen,
to the forfeitures which were formerly created by a conviction
for treason or any other felony, it did not restore the offender's
property free of all liabilities, but justly saddled him with
certain burdens which the crime itself had brought about.
1 Hence the Statute of Anne (7 Anne c. 12) which, in consequence of the
unfortunate arrest of the Russian Ambassador, subjects those who violate an
ambassador's privileges to "such pains, penalties, and corporal punishment
as the court shall think fit " did not make it possible to punish this offence
with death : though its framers may have hoped that "his Czarish Majesty,"
whom they avowedly were attempting to appease, would be unaware that its
language would be construed thus restrictively. See Blackstone's Commen-
taries, I. 255.
2 1 St. Tr. 885, 1281, 1^04. =* infra, p. 453.
" Infra, pp. 475—6. * Supra, pp. 83, 88.
6 33 and 34 Vict. c. 23.
vii] Present incidents of felony 95
Thus, sec. 4 of the Forfeiture Act enables the court before
\Yhich any person is convicted of felony — but not of treason
— to order that he shall pay damages, not exceeding £100,
for any " loss of property " which the felony has occasioned ;
(as where cash has been given for a forged cheque). But for
this enactment, the person who had suffered the loss would
have had to incur the trouble and expense of bringing an
action in some civil court to obtain compensation. French
procedure has long permitted the intervention, in criminal
proceedings, of a partie civile ; so as to save expense and
trouble by enabling one litigation to do the work of two.
But the principle is so unfamiliar in England that it has not
been extended to misdemeauors\
(3) As felonies were always heinous offences, the law
regarded it as of great moment that the offender should
be brought to justice. Hence whenever a felony has been
committed, any one who, on reasonable gi'ounds, suspects
any person of being the offender, is permitted to arrest
^ But in those light cases where any crime — whether felony or mis-
demeanor or even a mere petty non-indictable offence — has been committed
under such extenuating circumstances (whether arising from the triviality of
the act itself, or from the youth, good character, mental condition, etc.
of the offender) that, although the charge is proved, the court thinks it
inexpedient to inflict actual punishment, it may instead order him to pay
"such damages for injury or compensation for loss" as it thinks reasonable.
If the court is only one of summary jurisdiction, the sum ordered must
not exceed £10 ; but if it be a court of assizes or quarter-sessions there is no
limit, (not even that of the £100 prescribed in the Forfeiture Act). See
s. 1 (3) of the Probation of Offenders Act, 1907 (7 Edw. 7, c. 17) ; and
cf. p. 512 infra.
The Forfeiture Act also empowered the court which convicted a person
of felony or of treason to charge him with the costs of the prosecution. But
by the Costs in Criminal Cases Act, 1908 (8 Edw. 7, c. 17, s. 6) that power
is now given on conviction for any indictable offence ; and for all non-
indictable offences it already existed, under 11 and 12 Vict. c. 43, s. 18. In
1909, such an order was made on a misdemeanant in a case where the taxed
costs of the prosecution exceeded £2,000 ; Hex v. Stoddart, 2 Cr. App. B.
228.
96 Ft^esent incidents of felony [cii.
him forthwith. And any one who actually sees a felony
committed is not only permitted, but required, to do his
best forthwith to arrest the felon ; and may use any degree
of violence that may be necessary to attain that object.
But in the case of misdemeanors the common law never
permitted (and it is only in certain particular cases that
modern statutes' now permit) even the eye-witnesses of
the offence to arrest the offender without first obtaining a
magistrate's warrant to enable them to do so. Hence a
man who steals a penny may be seized on the spot, since
he is a felon. But a man who has obtained a herd of cattle
by false pretences is only a misdemeanant, so the farmer
had, at the common law, to let him go. On the same prin-
ciple, the justices of the peace who committed a felon for
trial, have always had authority to insist, if they thought fit,
on his remaining in prison until the trial took place ; though
a person committed for trial for misdemeanor could, at
common law, insist on being released on bail if he found
sufficient sureties. By modern legislation, however, the dis-
cretion which justices possess in felonies has been extended
— first to many — now to all misdemeanors'". The anxiety
of the law to secure the punishment of felons led to the
further rule that no person injured by a felony could bring
a civil action against the felon, to recover compensation for
his loss, until after a criminal prosecution had either taken
place or (as by the death or the pardon of the offender)
been rendered impossible. In misdemeanors, on the other
hand, either the civil or the criminal remedy may be taken
first; or indeed, in theory, both may be pursued simul-
taneously", though in practice such a course would never
be prudent*. But it should be added that, even in the case
of felonies, it is not altogether easy for a defendant to defeat
1 Infra, p. 444. ^ 8 Edw. 7, c. 17 ; mfra, p. 449.
8 Jones V. Clay, 1 B. and P. 191 ; Edgar's Case, 29 T. L. E. 278.
* Cf. Rex V. Mahon, 4 A. and E. 575.
vii] Gravity of felonies 97
a civil action by raising this defence that he has not yet
been prosecuted for the wrong which is complained of. So
audacious an attempt to ' take advantage of his own wrong'
is not allowed by the courts to be raised in the form of an
ordinary defence. Hence in recent years grave doubts have
been occasioned as to the validity of this objection. But the
defence does certainly exist. It was distinctly recognised in
1914 by the Court of Appeal, in Smith v. Selwyn ; (L. R.
[1914] 3 K. B. my. A defendant can set it up by a
summons at chambers to stay the action ; or the court itself
might spontaneously refuse to hold the trial. The objection
was never regarded as applying to actions (even though
connected with the felony) in which the defendant was not
the felon himself, or in which the plaintiff was not the
injured party himself.
(4) The heinousness of felonies is vividly shewn by the
legal disqualifications which arise from the infamy of being
convicted of one. The convicted felon ^ loses any office or
pension ; and he cannot vote for or sit in Parliament, or hold
military or civil or ecclesiastical office, until after he either
has been pardoned or has worked out his sentence'. These
disqualifications are not entailed by any misdemeanor.
The existence of so many differences, some of them still
so important, between felonies and misdemeanors naturally
suggests to the student that the former class of crimes are
marked by some special gravity. Yet it is not easy for him
at first sight to discover on what principle the separation
has been made between the crimes which are allotted to the
one class or to the other. It cannot depend— like the French
classification into crimes, delits, and contraventions — upon
the degree of dignity of the tribunal before which the
1 See also L. E. 17 Q. B. D. 93; 16 Cox 567. Felonies of homicide are
made an exception by 9 and 10 Vict. c. 93.
- Unless sentenced merely to imprisonment for twelve months or less,
and without hard labour; or (8 Edw. VII. c. 67, s. 100) unless convicted
when younger than sixteen. ^ 33 and 3i Vict. c. 23, s. 2.
K. 7
98 Inquisitorial procedure [cii.
offender is tP be tried. For a man may be tried for larceny,
which is a felony, before a police magistrate, and yet for
mere misdemeanors he may be impeached before the House
of Lords. Nor, again, can it depend upon the amount of
evil actually caused by the offence. For perjury, though it
may cause the death of an innocent person, is only a mis-
demeanor, whilst keeping a horse-slaughterer's yard without
licence is a felony ^ Nor, thirdly, can it depend upon the
gravity of the punishment. For larceny, which is a felony,
and false })retences, which is a misdemeanor, are punishable
alike. And the misdemeanor of conspiracy to murder is
punishable with ten years' penal servitude; yet the felony
of stealing mineral ores is only punishable with two years'
imprisonment-. An arrangement which produces such
anomalies as these, can only be explained by considerations
purely historical. It probably may be traced back to ancient
times when particular offences were first found to be of such
frequency and gravity as to render it no longer safe to leave
them to the chance of a prosecution, by the injured, in the
forms of ordinary litigation. The public safety demanded
a periodical public investigation by the Crown, through a
jury of accusation provided for the purpose, into the question
whether any offences of this deep dye had been committed.
Hence arose what we now know as " Grand Juries." To
facilitate their operations it became necessary to frame a
precise legal definition of each of the offences which they
were to report about^ To such offences the name of
'felonies' probably soon became'* limited; and the pro-
cedure concerning them gradually acquired its peculiar
characteristics. But offences less grave, or less common,
were for a long time left very loosely defined (as some of
them still are, e.g., conspiracy); and were never prosecuted
' 26 Geo. III. c. 71. The object is to prevent stolen horses from being
easily disposed of. ~ 24 and 25 Vict. c. 90, s. 38.
3 Cf. Eyre of Kent, 1313 (Solden Society), i. 52, ol.
* For an earUer and wider meaning {i.e. an "appealable" crime) see 2 P.
and M. 466.
vii] Inquisitorial p7^ocedure 99
in this " inquisitorial " mode, but were left as before to the
" litigious " action of private persons, (though in later days
that action would usually be nominally taken on behalf of
the Crown). These latter offences (except where statutory
enactment has since erected any of them into felonies)
constitute our modern misdemeanors. They, said Bracton
six hundred years ago, are tried like civil actions (" civiliter
intentantur ") ; and even now, as Sir James Stephen says,
a prosecution for misdemeanor is hardly distinguishable
from an action for tort in which the King is plaintiff and
which aims at punishment and not at damages. Thus, in
a trial for misdemeanor, the juryman's oath is to " truly
try the issue joined between our sovereign Lord the King
and the defendant." But in a felony it is to " true deliver-
ance make between our sovereign Lord the King and the
prisoner at the bar." Hence it is easy to understand why,
in so many respects, the older law assimilated the idea of
misdemeanors rather to that of mere civil wrongs than to
that of felony ; as in the conspicuous instance of its requiring
a Peer to be tried by the House of Lords if the charge is one
of felony, but by a jury of mere commoners if it is one of
misdemeanor. In the course of time, the analogies of civil
procedure have gradually caused the litigious type of pro-
cedure to supersede the inquisitorial, even in the case of
felonies. The influence of the old inquisitorial theory, how-
ever, still survives in the treatment of such crimes as still
continue to be (as formerly every felony was) punishable
with death. Thus, in cases of homicide, every person present
at the killing is usually called by the Crown as a witness ;
and this even though he be near akin to the prisoner, or be
sub-poenaed by him, or be manifestly hostile to the Crown.
Thus, in a case of poisoning, all the chemists who have made
analyses for the Crown, alike those who thought they found
poison and those who did not, may have to be called. .In
other words, it is and has always been the view of English
1—2
lUO Proposals for reform [ch. vii
law that, when a man is being tried for his life, the Cro\vTi
counsel are not " litigants " battling with the prisoner, but a
royal commission of " inquirers " dispassionately investigating
the truths
We may add that long before the abolition, in 1870, of
forfeitures for felony, they had ceased to be of any financial
importance. The annual amounts received between 1848
and 1870 ranged only from £253 to £13171 Most felons
were poor; and the rich ones disposed of their wealth
between arrest and conviction. The time had come for this
change ; and, indeed, for other allied reforms.
It is quite possible that, in a perfect Criminal Code, crimes
would continue to be broken into two great divisions according
to their greater or lesser heinousness^; and that particular
incidents both "of procedure and punishment would attach
to the graver class. But, in English law, great objection
may be taken both, as we have seen, to the illogical manner
in which particular crimes have been placed in the one class
or the other, and also to some of the incidents attached to
one or other of the classes. Hence the Criminal Code Bill
of a score years ago, in its earlier form, abolished altogether
the distinction between felonies and misdemeanors; and
though the last draft, that of 1880, retained the distinction,
yet it removed nearly all its importance. For it proposed
that some incidents now attached to felonies should be
attached only to such crimes as are punishable with death
or penal servitude ; whilst a few of the other incidents were
to be extended to all crimes; and other incidents, again, were
to be wholly abolished. There can be little doubt that, of
all parts of our criminal law, none is in greater need of a
thorough reconstruction than that which concerns the classi-
fication into Felonies and Misdemeanors.
' See 8 C. and P. 269 ; and (/to/i-capital) 1 C. and K. 650.
" Parliamentary Papers: 186-i, no. 136; 1870, no. 125.
' Yet see Stephen's criticism, Hist. Cr. Law, ii. lOi — 196.
BOOK 11.
DEFINITIONS OF PARTICULAR CRIMES.
CHAPTER VIII.
HOMICIDE.
We have already shewn ample ground for not adopting,
as the an-angement of our successive explanations of the
various crimes known to English law, the technical classifi-
cation into Felonies and Misdemeanors. All writers have
found it necessary to classify crimes upon a very different
and more scientific principle — viz., by reference to the various
kinds of interests which the respective offences violate. Thus
Blackstone arranged them into those that are committed
against (1) religion ; (2) the law of nations ; (3) the sovereign
executive power; (4) the rights of the public; and (5) the
rights of private individuals, whether these rights relate to
(a) the persons, or (6) the habitations, or (c) the ordinary
property, of those individuals. And, very similarly, the pro-
posed Criminal Code of 1880 classified crimes into (1) those
against public order, {e.g., treason); (2) those affecting the
administration of law and justice, {e.g., perjury); (3) those
against religion, morals, or public convenience, {e.g., blasphemy,
nuisance); (4) those against the person or reputation of
individuals, {e.g., murder, libel); and (5) those against the
rights of property of individuals, {e.g., theft). But the clearest
arrangement is that of Blackstonc's modern ediior, Serjeant
102 Non-criminal homicides [ch.
Stephen, who divides them simply into (1) offences against
the persons of individuals, (2) offences against the property
of individuals, (8) offences against public rights.
Following this last arrangement, our list of crimes must
begin with those which affect the security of men's persons —
employing here that much abused word, not in its ancient
technical legal sense of "a subject of rights and dutiesS" but
in the modern meaning of "the living body of a human being^"
Of all such offences, that of homicide* is necessarily the most
important. And, to every student of criminal law, homicide
is a crime peculiarly instructive ; inasmuch as in it, from the
gravity of the fact that a life has been taken, a minuter
inquiry than is usual in other criminal cases is made into all
the circumstances, and especially into the wrong-doer's state
of mind. Hence the analysis of the mens rea has been worked
out in homicide with great detail ; whilst in regard to many
other offences it still remains uncertain what precise condition
of mind the accepted definitions of them are to be interpreted
as requiring.
It is not, however, every homicide that is criminal.
And at one time those forms of homicide which were not
criminal were subdivided into two species; (though the im-
portance of the distinction has now disappeared). For the
older lawyers distinguished between the homicides that
were Justifiable, and those that were only Excusable. In the
former the act was enjoined or permitted by the law, (the
slayer thus really acting on behalf of the State); in the
latter, the act carried with it some taint, however slight, of
blameworthiness.
1 See Holland's Jurisprudence, ch. viii.
* This sense perhaps was brought into English law by Sir Matthew
Hale; who has the grotesque phrase, " the interest which a person has in the
safety of his own person." (Analysis of the Law, sec. 1.)
s See Stephen's Hist. Cr. Law, iiu 1—107 ; iJif). Cr. Law, chs. xxm.,
XXIV.
viii] Justifiable homicides 103
(A) The common law, from a very early stage in its
history, seems to have regarded some cases of homicide as
being strictly Justifiable; and therefore as involving no legal
penalty whatever.
(1) The execution of pnMie justice. Thus the hangman
who carries out the sentence of a competent court incurs no
criminal liability. The sheriff who burnt the martyrs Latimer
and Ridley at the stake was accordingly in no danger, either
under Mary or even under Elizabeth, of being himself con-
victed of murder for having so done. His immunity was due
— not, as Blackstone^ ascribes it, to a mere absence of mens
rea, because his act was extorted by a compulsion of official
duty which overbore his own reluctance to commit it — but
to the entire absence of any actus reus at all. It was not
a crime for him to carry out the sentence ; nay, it would
have been a crime, though it might at the same time have
been an act of moral heroism, for him to refuse to carry
it out.
(2) The advancement of public justice. Thus life may
be innocently taken, if it be necessary for arresting a felon ^
or suppressing a riot, or preventing some crime of a violent
character. On the other hand, when the "Hammersmith
Ghost" in 1804 was shot on its nocturnal round, the slayer
was held guilty of murder; for the masquerade thus pre-
vented was not a violent crime but a mere misdemeanor of
"Nuisance."
(3) The defence, of oneself against a wrong-doer. A man
is justified in using force against an assailant, in defence of
himself or of his immediate kindred^ (and probably now-a-
1 4 Bl. Coram. 28.
2 Cf. pp- 285, 443, infra ; and K. S. C. 143. As to officers' inclpmnifica-
tiou for tiring on air-craft that fly illegally, see 2 and 3 Geo. 5, c. 22.
s HoiveVs Case, Maitland's Select Pleas 94 (K. S. C. 139). In 1811
Mr Purcell, of co. Cork, a septuagenarian, was knighted for killing four
burglars with a carving-knire.
4 Eeg. V. Rose, 15 Cox 510 (K. S. C. 140).
104 JustJfahle homicides [ch.
days even of anyone else who actually needs his protection').
Hence if he h.is a reasonable apprehension of danger, and
adopts none but reasonable means of warding it off, he will
be innocent even though the Avrong-doer be killed by the
means thus adopted. But reasonable these means must be.
Hence a person assaulted is not justified in using firearms
against his assailant, unless the assault is so violent as to
make him consider his life to be actually in danger. On
the other hand, where a man, after hurling a bottle at the
head of one Mr Cupe, had immediately proceeded to draw
a SAVord, and Cope thereupon had thrown back the bottle with
violence. Lord Holt held that Cope's action was justifiable-:
"for he that hath raamfested that he hath malice against
another is not fit to be trusted with a dangerous weapon in
his hand."
But where the wrong-doer is not going so far as to as-
sault a human being, but is only interfering unlawfully with
property, whether real or personal, the possessor of that
property, (though he is permitted by the law to use a mode-
rate degree of force in defence of his possession), vnW usually
not be justified in carrying this force to the point of killing
the trespasser'. For such a justification will not arise unless
the trespasser's interference or his resistance amounts to a
felony, and moreover to a felony of some kind that is
violent, such, for example, as robbery, arson, or burglary.
And even these extremely violent felonies should not be
resisted by extreme violence unless it is actually necessary ;
1 Foster 274 ; 3 Russell on Crimes 216. Cf. p. 154 infra.
- Mawi/ridoe's Case, Kelyng 128. For, if blameless from the first, the
self-defender is not bound to retreat, if possible, before killing ; which is
required in Chance-medley, p. 107 infra.
3 So a "black-leg" vandriver must not use a pistol to defend his van
from being injured by strikers; but may use it if their attempt to overturn
the van endangers his own life ; Rex v. Roberts, 75 J. P. 436.
viii] Excusable homicides 105
thus firearms should not be used until there seems to be no
other mode available for defeating the intruder and securing
his arrest. Hence, a fortiori, the actual killing of a person
who is engaged in committing any mere misdemeanor, or
any felony that is not one of force, qannot be legally justified;
any one so killing him will be guilty of a criminal homicide.
(4) There was some old authority for maintaining that
under some circumstances a man might, for the preservation
of his own life, be justified in taking away the life even of
a person who was in no way a wrong-doer. Thus Lord Bacon^
reviving the ancient problem which Cicero had cited from
the Rhodian moralist Hecato, suggested that where two men,
swimming in the sea after a shipwreck, get hold of a plank
not large enough to support both, and one pushes off the
other, who consequently is drowned, the survivor will not be
guilty of any crime. But, as we have seen, in Reg. v. Dudley
and Stephen^, the five senior judges of the King's Bench
Division threw doubt upon Bacon's doctrine ; and refused to
recognise as justifiable the act of some shipwrecked sailors,
who had killed a boy, in order to feed on his body, when
scarcely any other hope of rescue remained*.
The peaceful orderliness of modem times has of course
greatly diminished the number of cases of justifiable homi-
cide. Some three hundred felonious homicides take place in
England every year ; but less than a score of executions, and
less than half-a-dozen other acts of justifiable homicide.
(B) Beyond the strictly justifiable cases of homicide
there were other cases which the law regarded as merely
Excusable, i.e., as, similarly, not deserving to be made felonies
and punished with death, but as nevertheless being in some
1 Bacon's iUaa;i?7K, 5; Cicero, De Ojjiciis, iii. 23; Puffendorf, J.N. Q.
2. 6. 4.
2 L. B. 14 Q. B. D. 273 (K. S. C. Gl). Supra, pp. 75, 76.
3 Bracton ii. 284—286; 1 Hale P. C. 419—424; Stephen, liist. Cr. Law,
III. 77 ; Pollock and Maitland, Hist. Eng. Law, u. 471.
iOG Excusable homicides [cii.
degree blameable. Tlu-se accoi'ilingly were punislied by the
forfeiture of the offender's moveable property; (though ulti-
mately it became usual for the Crown to restore all these
goods except the "deodaud," the iustiumeut by which the
killing had been effected'). We have here a relic of the
rough Anglo-Saxon times in which the law treated almost
all homicides, however heinous or innocent, as matters that
must be expiated by the payment of a pecuniary wer.
Thus, so late as 1118, the compiler of the so-called Leges
Henrici I. gives it as still the Wessex rule, that for every
homicide, whether intentional or even accidental, the wergild
must be paid* to the family of the slain man. Even after
a more discriminating legislation had recognised, under
ecclesiastical influence^ th.it the more heinous forms must
be punished with death, some time had still to elapse before
it was clearly settled what forms were on the other hand
so innocent as not to deserve even a pecuniary penalty.
Thus, in the thirteenth century, even the man who slew
some one by mere accident still needed a royal pardon,
though he received this pardon as a matter of course*.
And subsequently it came to be settled that, even when
pardoned, he would still have to forfeit not merely the
deodand but all the rest of his chattels; (which, however,
at that period were seldom of great value). Even if it were
not to him that the deodand belonged, it nevertheless would
still be confiscated, in order that it might be purged from
the stain of blood by being " given to God " in pious uses.
Hence it was exacted not only where a human agent was
thus responsible for the death, as in the case of a man on
* Pollock and Maitlaud, u. 473.
- Cap. 70, s. 12. "Sive sponte aut non spoute liant haeo, nihilominua
tamen emendetur, qua; enim per inscientiam peccamus, per induKdiam corri-
gamus." Pollock and Maitland, ii. 409; and (Alfred's quaint iJliili Law, as
to various accidents caused by carrying a spear) i. 53.
' Glasson, Jlintoire dii droit de I'Aitjleterre, u. 537.
■* Pollock and Maitland, li. 47a.
viii] Chance-medley 107
horseback accidentally riding over a man who was asleep
on the highway, but even where death was due to some mere
natural accident, as in the case of a man's falling from a boat
and being drowned. The rule was
"Whatever moved to do the deed
Is deodand and forfeited."
But, in practice, the forfeiture of the deodand was not con-
fined to things that had moved. A small boy fell into a pan
full of milk and was thereby drowned ; whereupon the pan was
forfeited^ The deodand was usually sold by the King ; the
purchase money, or commutation money, received for it being
devoted to pious uses for the soul that had died unabsolved.
After the Reformation, the money was usually handed to the
poor, or to the relations of the deceased. Thus when in 1716
the coroner's juries of Yarmouth declared a horse from which
a man had been thrown, and a stack of timber which had
fallen on a child, to be forfeited as deodands, the stack was
ransomed for 305., which was paid over to the child's father.
Deodands were not abolished until 1846^ But the general
forfeiture of goods caused by excusable homicide had been
abolished in 1828^; so homicides which down to that time
had been classed as Excusable ceased, thenceforward, to differ
at all in their legal consequences from such as were fully
Justifiable. The merely Excusable cases of homicide had
been the two following.
(1) Where in any chance-medley (i.e., " sudden combat ")
one of the combatants desisted from fighting, but the other
continued his assault, and then the former one, having no
other probable means of escape open to him^ killed his assail-
ant, the necessity of self-defence prevented the homicide from
being a felony. But, as at first he was to blame for his share
in the affray, the case was distinguished from the strictly
"justifiable" homicide in which a person, who had been
1 Select Coroners' lioUs, p. 50. 2 9 and 10 Vict. c. 62.
3 8 and 9 Geo. IV. c. 31.
* For he should retreat, if he can. Contrast p. 104 u. (2).
108 Misadventure [<"h.
assaulted when entirely passive, slew his assailant in self-
defence. On the other hand, if the chance-medley had been
continued by both the combatants down to the time when the
fatal blow was struck, the homicide would have nothing to
excuse it, and would be felonious — a manslaughter or possibly
even a murder'.
(2) Where one man killed another by misadventure —
i.e., in doing a lawful act, and with no intention of causing
harm, and with no culpable negligence in the mode of doing
^' ^^ it 2 — his act was held excusable. Thus where a man spun
^ \ round with a boy in a frolic, and, on the boy disengaging him-
self, reeled against a woman and thereby caused her death,
the case was held to be only one of misadventure*. So again,
where a child of four, on being asked if he would like a drop
of gin, twisted the glass out of the prisoner's hand and
i^. • swallowed nearly all its contents, and died in consequence,
it was held that the drinking this extraordinary additional
y quantity of the gin was the act of the child himself; and that
the prisoner therefore had committed no felony*. A very
important class of cases of mere misadventure are those in
which death is accidentally caused by a parent or master,
when engaged in the lawful act of giving a child, or scholar,
or apprentice, reasonable chastisement with a reasonable
inst^ument^
The right of the parent or teacher to punish a chihl is
recognised by the Children Act, 1908 ; (8 Edw. VII. c. 67,
s. 37). By the older common law this right of correction was
recognised even as against adult servants. Similarly, every
husband was formerly intrusted with the power ul correcting
1 Infra, p. 118.
2 Contrast Reg. v. Jones, 12 Cox 628 (K. S. C. 28) with Foster 265 (K. S.
C. 27).
8 Ueg. V. Bruce, 2 Cox 262 (K. S. C. 136).
* Rex V. Martin, 3 C. and P. 211 (K. S. C. 137).
B Combe's Case, 9 Coke 76 a; Cleary v. Booth, L. R. [1893] 1 Q. B. 465.
Even an apprentice as old as seventeen; see Times, Nov. 30, 1910.
1
viii] Homicide by chastisement 109
his wife by personal chastisement; but, as Blackstone tells
us, in the politer days of Charles the Second this power of
correction began to be doubted ; though, he adds in a vein
of humour, " the lower rank of people, who %uere always fond
of the Common Law, still claim and exert their antient
privileged"
The right to punish a child exists of course only in the
case of one who is old enough to be capable of appreciating
con-ection ; not, for instance, in that of an infant of the age
of two and a half^ And, in all cases, the character and
amount of the punishment that can be recognised as lawful
will vary with the age and the sex and the apparent physical
condition of the child. But where the punishment has
clearly a lawful occasion, and is not unreasonable in the
manner of its infliction or even in its amount, the fact that
the child has died in consequence of it, will not render the
parent or master who inflicted it guilty of a felonious homi-
cide. Such a death may ensue where the child has some
hidden peculiarity of structure that was unknown to the
parent or master — such a defect, for instance, as the familiar
"egg-shell skull" may render a slight blow fatal, or a
hsemophilic boy may have such a tendency to bleeding
that he dies from a flogging which might have been ad-
ministered with impunity to ordinary pupils'. Similarly,
quite apart from any chastisement, the peculiar physical
formation of a person may easily lead to his death by mis-
adventure. A slight push, which was only such as is usual
in social intercourse, has, for instance, been known to cause
the death of a man who by congenital malformation had
only one kidney; a push, which an ordinary person would
scarcely have felt, sufficed to arrest its physiological action,
and the man died almost immediately.
1 1 Bl. Comm. 444.
^ Reg. V. Griffin, 11 Cox 402.
" See the case cited in Poore's Medical Jurisprudence, p. 357.
'^
no Homicide in sports [ch.
Another class of cases of misadventure, of still greater
practical importance, are those where death is accidentally
caused in the course of some lawful game or sport. Thus,
though an armed tournament was unlawful even in mediaeval
times, and a knight who killed another in such an exercise
would usually be guilty of criminal homicide, yet it was
otherwise if the King had commanded the particular tourna-
ment in question. In a struggle thus legalised by the royal
order, the death of any of the combatants would be a case
of mere innocent misadventure. At the present day, all
such exercises with naked swords would be illegal however
licensed. But ordinary fencing, and, similarly, boxingi, wrest-
ling, football-, and the like, are lawful games if carried on
with due care. Everyone who takes part in them gives, by
so doing, his implied consent to the infliction upon himself
of a certain (though a limited) amount of bodily harm. But
no one has the right to consent to the infliction upon himself
of an excessive degree of bodily harm, such harm as amounts
to " maiming •'" him ; and thus his agreement to play a game
under dangerously illegal rules will, if he be killed in the
course of the game, afford no legal excuse to the killer. (Nor
has he even any right to consent to the production of such
a state of affairs as will constitute a breach of the peace.
For both these reasons, prize-fighting is held to be illegal;
in spite of the two competitors having consented to take
its risk). Thus not only is a combat illegal, produced by an
actual desire to hurt, but so also is even a contest, for mere
exhibition of strength and skill, if they are exhibited in
a manner that is perilous-*. To wear boxing-gloves will not
necessarily reduce the peril of boxing to within the legal
limit, for they may be too slight for their purpose*. And
' 7?r<7. V. Coney, L. E. 8 Q. B. D. 53i.
2 Reg. V. Bracishaw, 14 Cox 83 (K. S. C. 131). » Infra, p. 146.
* See p. 85 as to guilt of such spectators as applnud.
'•> Or the fight may be unduly prolonged; C. C. C. Sess. Pap. lxiv. 73.
viiij Homicide in (sports 111
the question has recently been debated Avhether an illegal
degree of peril is not created by the common Ten Seconds
Rule; which, in making the non-resumption of the contest
equivalent to a defeat, tempts a man to try to secure victory
by reducing his opponent to a dangerously extreme degree
of exhaustion.
Of course even the most lawful game will cease to be
lawful as soon as anger is imported into it; and the im-
munity from criminal liability for those engaged in it will
consequently at once disappear'.
1 Beg. V. Canniff, 9 C. and P. 359. The fact that the prisoner was playing
in strict accordance with the well-accustomed rules of the game will help
towards showing that he was not actuated by motives of anger ; and, again,
towards showing that the way in which he was playing was not so obviously
perilous as to be illegal. Hence, for either of these purposes, these rules
may be admissible evidence on behalf of the prisoner. But, on the other
hand, if the prisoner was playing in violation of the rules, they are not
thereby rendeivd admissible evidence against him. For it is not criminal,
and not necessarily either dangerous or mahcious, to break them. On this
point the case of Reg. v. Bradshaw {supra, p. 110) may be compared with
that of Reg. v. Moore (14 T. L. R. 229), where, in a game of Association
football, the prisoner had killed a man by charging him from beliind, in
defiance of the rules.
CHAPTER IX.
' FELONIOUS HOMICIDES.
If a homicide be committed under such circumstances as
to be neither justifiable nor excusable, but a crime, it is not,
and never was, a mere misdemeanor, but always a fl-lony.
The felony may, however, take any one of three forms : —
(I) Felonia de se ; i.e., a suicide that takes place under
such conditions as to be criminal. It is generally said that
no one can be — and in actual practice no one ever is —
adjudged & felo^de se unless he brought about his own death
with the same full "malice aforethought" {infra, pp. 132 — 9)
that would render his killing of someone else a Murder'-.
The common law endeavoured to deter men from this
crime by the threat of degradations to be inflicted upon the
suicide's corpse, which, by a natural if unreasoning association
of ideas, were often a potent deterrent ; and also by threaten-
ing the forfeiture of his goods, a vicarious punishment which,
though falling wholly upon his surviving family, was likely
often to appeal strongly to his sense of affection. Thus the
man who feloniously took his own life was at one time buried
in the highway, with a stake through his body; and his
goods were forfeited. The burial of suicides lost its gruesome
aspect in 1824, when the original mode was replaced by the
1 Felo de se does not mean the felony, but the felon himself.
2 Stephen {Digest, Art. '240) makes murderous miilice essential. Yet the
authorities he relies on are ambiguous ; and see Jervis on Coroners, p. 151 ;
and 50 and 51 Viet. c. 71, sched. 2. If, through an invalid's wilful refusal
to call in medical aid, both he and his sick child die, it is hard to see how,
whilst the child's death is (infra, p. 122) felonious, the father's can be
innocent.
CH. ix] Insanity in Suicides 113
practice of burial between the hours of nine and twelve at
night, without any service. In 1870, the confiscation of the
goods of suicides was put an end to in the general abolition
of forfeitures for felony'. And in 1882, the statute 45 and 46
Vict. c. 19 removed every penalty, except the purely ecclesias-
tical one that the interment must not be solemnised by a
burial service in the full ordinary Anglican form. Even
before the common law penalties oifelonia de se were legally
abolished, the popular disapprobation of them, which ulti-
mately secured their abolition, had gone very far in reducing
the number of cases in which they were actually inflicted.
For it rendered coroners' juries eager to avail themselves of
the slightest grounds for pronouncing an act of suicide to
have been committed during a fit of insanity, and con-
sequently to have involved no felonious guilt. So if the
evidence disclosed any source of anxiety which might have
given the deceased a motive for his fatal act, anxiety was
declared to have unsettled his mind ; if, on the other hand,
no motive could be found, then the very causelessness of his
act Avas declared to be itself proof of his insanity. It is to
be regretted that this practice of "pious perjury" — to borrow
an indulgent phrase of Blackstone's — became so inveterate
that it has survived the abolition of those penalties which
were its cause and its excuse. In every thousand cases of
suicide upon which coroners' inquests are held, there are
usually less than forty in which a verdict of felo de se
is returned-. This seems to shew that, in cases of suicide,
juries are still in the habit of pronouncing on utterly in-
adequate grounds a verdict of Insanity; forgetting that whilst
such a verdict no longer removes any appreciable penalty, it
may throw upon the family of the deceased an undeserved
stigma, gravely affecting their social or matrimonial or
1 33 aud 34 Vict. c. 23.
- Criminal Judicial Statistics, 1896, p. 141 ; 1911, p. 121. In France only
sixteen per cent, of suicides are pronounced insane, unlike this ninety-six.
K. 8
114 Attempts at Suicide [ch.
commercial prospects. For the same proorross of th(Mic^ht
which has made men averse to vicarious and to degrading
punishments, has also made them quick to trace the physical
and mental influences of heredity.
In spite of the abolition of the old penalties, the inten-
tional suicide of a sane person is still regarded by the law as
an act of crime. Accordingly, every attempt to commit
suicide is an indictable misdemeanor'. Hence, in 1901,
where a girl, in attempting to shoot herself, accidentally
shot her lover as he was trying to snatch the revolver from
her, though the jury on her trial at the Central Criminal
Court somewhat pcrvei'sely insisted upon acquitting her on
an indictment for murder, she was found guilty on one for
attempting to commit suicide, and received a sentence of
imprisonment. Another consequence of the criminality of
suicide is that if two persons agree to die together, but only
one succeeds in putting an end to his life, the survivor is
guilty of murder, as a principal in the second degree*. Or,
putting it more generally, anyone who successfully instigates
another to commit suicide is guilty of murder'. For the same
reason, if a person, in making an attempt to commit suicide,
should accidentally kill any of the bystanders, he will be guilty
at least of manslaughter ; and, in most cases, of murder*.
Statistics shew that for many years the proportion of
suicides to population went on steadily increasing. In 1905
it was quite half as high again as in 1873", having risen from
about 63 per million to about 10 P. But at present, happily,
the rise seems to be checked.
We now pass to those cases of felonious killing in which
the person slain is not the slayer himself but someone else.
* Vide supra, p. 82. Reg. v. Burgess, L. and C. 258.
« Rex V, Dyson, liussell aud Ryan 523 (K. S. C. 89).
3 Commonwealth v. Bowen, 13 Mass. 356 (K. S. C. 91).
* Commonwealth v. Mink, 9 Lathrop 422 (K. S. C. 110).
" Criminal Judicial Statistics of England and Wales, issue of 1907, p. 48.
* In Fiance, above 200. In both England and France, summer and not
ix] Voluntary Manslaughter 115
(II) Manslaughter. This felony consists in killing an-
other person unlawfully, yet under conditions not so heinous
as to render the act a murder. It is spoken of by Hale
and Blackstone as being committed " without malice, either
express or implied." We shall better avoid confusion of
language if we say, instead, "without any of those^ more
guilty forms of malice which amount to Murderous Malice."
For malice, in its wide legal sense (that is to say, mens
rea), is essential to every crime.
Manslaughter admits of subdivision into two sharply
distinguished forms; the so-called "voluntary" and the so-
called " involuntary."
(a) Voluntary manslaughter is that which is committed
with the "voluntas," the intention, of causing to another
person some illegal harm — it may be a merely slight or a
grave or even a fatal harm. Where some trivial blow is
struck, with the intention of producing mere momentary
pain, but death unexpectedly results from it, then, if it is
an unlawful blow, the striker will be guilty of manslaughter.
(We have already seen that this merely accidental homicide
would not have been criminal at all if the blow had been a
lawful one, as in correcting a scholar.) An illustration of
such a manslaughter is afforded when the carrying out of
some slight practical joke, which seemed harmless enough,
unhappily results, perhaps through blood-poisoning, in the
death of the victim of it".
Where, however, death is produced by a blow which
was not a mere trivial one, but was likely to cause serious
bodily harm, the crime may be either a manslaughter or a
murder, according to the circumstances. For though, if the
assailant had received only a slight provocation, or none at
all, his crime will amount to murder ; yet if he had received
•winter is the period of the maximum of suicides; and in both countries
they are thrice as common among men as amoig women.
1 Infra, p. 133. « Eex v. Sullivan, 7 C. and P. 641 (K. S. C. 116).
8—2
A.
116 Voluntary MansIaitgJiter [en.
gross' provocation, it may amount to no more than a man-
slaughter. This may be the ease even though the fatal
injur}' were inflicted by a deadly weapon and with the full
intention of killing. For the provocation which the slayer
had received may have been so sudden and so extreme as
to deprive him (for the time being) of his ordinary powers of
self-control-; and consequently to render his violent feelings
of hostility less blameable — blameable enough, still, to merit
punishment, but not to merit the punishment of death. The
suddenness of the homicidal act is thus an essential condition
of this mitigation of his guilt. The fact that the weapon
he used was one which he already had in his hand at the
time of receiving the provocation, may be important as
evidence that the blow was not premeditated ^ Still more
favourable will it be for the prisoner if he can shew that
he used no weapon but that with which nature had provided
him — his own clenched fist.
In manslaughter of the " voluntary " kind, as there can
have been no premeditation, there can never be an accessory
before the fact ; (a remark which has sometimes been, too
hastily, extended to manslaughters in general). There will
usually, too, be no appreciable interval of time between the
one man's act of provocation and the other man's act of
killing. If, however, some time do intervene, it is neverthe-
less possible that the slayer's conduct during it may be such
as to shew that the ungovernable passion, aroused by the
provocation, still continued throughout that time and was
truly the cause of the fatal blow. On the other hand, it is
of course also possible that his conduct during the interval
may have been so calm as to shew that his resentment had
cooled down ; and consequently that the provocation originally
1 Bc(i. V. Wild, 2 Lewin 214 (K. S. C. 116). The "grossness" must be
measured by an ordinary person's feelings, not by this prisoner's exceptional
sensitiveness; Rex v. Alexander, 9 Cr. App. R. 139; cf. ibid. p. 93.
2 Rex V. Lynch, 5 C. and P. 324.
3 See Rex v. Thomas, 7 C. and P. at p. 818.
ix] Manslaughter on Provocation 117
received cannot have the legal effect of reducing the killing
to something less than murder.
The provocation upon which any such sudden intent to
kill is formed must, as we have said, be a gross one, if it is
to have the result of reducing the killing to a manslaughter.
Mere words, however insulting and irritating, are never re-
garded by the law as gi'oss enough to produce this i-esult.
Indeed very few forms of provocation that do not involve
some physical assault are regarded as sufficiently gross to
produce it. One of those few may be found in the case of
a husband who detects a man in the very act of adultery
with his wife\ and kills him^ on the spot. (But had the man
been committing not mere adultery but rape — i.e., had the
wife not been a consenting party — the husband's act in killing
him might not have had even the guilt of manslaughter and
might have been a Justifiable Homicide.) On the other ii
hand, if he kill him, not on the spot but subsequently, "after//
cooling-time," it will be Murder. f
Even an actual assault is not provocation enough unless
it be of a very violent or very insulting character. Thus if
a man receives from a woman a slap in the face, the provoca-
tion is not gross enough for this purpose ; though if she had
struck him violently on the face with a heavy clog, so as
to draw blood, that would have been suflficiently gross.
A n(iju_bliyY-.^hidi was_giv en. lawfully, e.g., for the purpose
of preyeiiting a violent assault on some third person, can
never be an adequate provocation. Although, as we have
seen, mere words, however insulting, are never regarded as
1 Not with a mere fiancee, Bex v. Palmer, L. R. [1913] 2 K. B. 29 ; nor
a concubine. Rex v. Greening, 29 T. L. R. 732,
2 Or kills her. Cf. Bex v. Muddy, 1 Ventris 158 (K. S. C. 111). And the
same rule is now applied when a killing follows immediately upon a (sup-
posed) confession of 'past adultery, if the words used would put an ordinary i
man into the same state of mind as if he had witnessed his wife's act of '
adultery ; Rex v. Palmer. But no less convincing proof of adultery suffices;
Rex V, Birchall, 9 Cr. App. 11. 91, 29 T. L. R. 711, cf. p. 732,
(^.
■\l
118 Manalattfjhter in Combats [ch.
amounting of themselves to a sufficiently gross provocation,
yet, where they accompany a blow, they may be taken into
account in estimating the degree of provocation given by
the blow. They may thus have the effect of rendering an
assault, which, if committed silently, would have been trivial,
a provocation gross enough to reduce a homicide into a man-
slaughter. An unlawful imprisonment, or an unlawful arrest,
may clearly be a sufficient provocation to reduce to man-
slaughter an act of killing inflicted by the actual person
imprisoned or arrested \ But it will never have this effect
as regards a homicide committed by other persons in their
sympathy with him. Hence if bystanders try to rescue him,
and kill someone in the attempt to do so, they will be
guilty of murder^
One of the most common cases ofjvoluntary manslaug^hter
is that of its being committed in the anger provoked by a
sudden combat. Thus if, upon a quarrel which was not pre-
meditated — or, at least, was not premeditated on the part
of the prisoner — persons fall to fighting; and then, in the
heat of the moment, either of them (for the combat affords
matter of provocation to each) inflicts some fatal injury on
the other, the slayer will not be guilty of more than a man-
slaughter. Thus where a soldier, who was defending himself
against an insulting mob by brandishing his sword and by
striking some of them with the side of it, finally struck
one of them a blow on the head which killed him, the judges
held that it was only manslaughter*. Similarly where, in
the course of a quarrel, one French prisoner-of-war threw
another to the ground, and then stamped on his stomach
and thereby killed him, it was held to be only a case of
manslaughter; because there had been no interval of time
between the blow which threw the deceased to the ground
1 Rex V. Stevenson, 19 St. Tr. 846. See p. 443 infra.
* Re;;. V. Allen, Stephen's Dig. Cr. Law, Art. 245 and note 9.
» Rex V. Brown, 1 Leach 176 (K. S. C. 112).
ix] Involuntary Manslaughter 119
and the stamping on his body'. If, however, the quarrel
subside for a time, and then be resumed by one of the
combatants, it usually will not afford him any palliation
for a fatal blow struck after the resumption of the conflicts
It certainly will not do so if he employed the interval in
arming himself for the renewal of the combats Hence if,
when two persons quarrel, they proceed to fight then and
there, and one of them is killed, the offence is only man-
slaughter* ; but if, instead of thus fighting at the moment of
the quarrel, they agree to hold a duel on the following day,
and one of them is killed in that duel, the slayer will be
guilty of murder'.
The various effects of provocation in cases of " voluntary "
homicide may be summed up thus. A grave provocation
r educes to ^ maaslaugbtgr the act of killing, even though it
be committed with some dangerous instrument, such as was
likely to kill {e.g., a pestle). But a slight provocation (a)
Ipavps tjip no-t 9f HilHng-adth a dangerous instrument still a
murder; though it {jB) reduces the act of killing with a
slight instrument, such as was likely only to wound, {e.g., a
cudgel), to manslaughter. Provocation never reduces. .a
homicide to misadventure, if the fatal blow were unlawful,
{e.g. resentful) ; though it may if that blow were only a
lawful act of self-det'cuce.
(6) Involuntary manslaughter is that which is committed
by a person who brings about the death of another by
acting in some unlawful manner, but without any in-
tention of killing, or even of hurting, anyone. This may
happen in three ways : —
(1) He may be doing some act which is intrinsically
unlawful ; (probably it must not® be so unlawful as to be
1 Rex V. Ayes, RusseU and Ryan 167 {K S. C. 113).
2 Reg. V. Kirkham, 8 C. and P. 115.
s Rex V. Mason, Foster 132. * Rex v. Walters, 12 St. Tr. 113.
6 Reg. V. Cuddy, 1 C. and K. 210. «* Infra p. 136.
120 Manslcmgliter hif Omissions [ch.
a felony, for then the honiieiile miglit not be a mere man-
slaughter but a murder). Thus a person commits man-
A slaughter if he accidentally kills some one else by conduct
which amounts to a misdemeanor (as by taking part in an
unlawful assembly'), or even to a petty ofifence punishable
summarily (as where a motorist exceeds the appointed limit
of speed). And this rule has usually been regarded as hold-
ing good whenever the unlawful act which accidentally pro-
duced the death amounted to even a mere civil tort. But
/ there is some modern authority for confining the doctrine to
/ such torts as are likely to cause bodily hurt^ In Reg. v.
Franklin^, this more lenient view was expressed by Field, J.,
and Mathew, J. But this view was not taken by the late
Mr Justice Stephen*, who adhered to the older doctrine that
any tort will suffice, even though it did not seem fraught
with any danger.
(2) He may be leaving unperformed some act which it
is his legal duly to perform. Thus if a railway passenger
is killed because the pointsman fell asleep and forgot to
move the points, this pointsman will be guilty of man-
^ slaughter; (if, on the other hand, he had purposely left
the points unmoved, it would have been murder). Where
X- the engine-man at a colliery left his steam-engine in the
[>\ charge of an ignorant boy, and this lad's inexperience in
- ^^"^^ managing it brought about the death of a miner, the engine-
^'^ man was held guilty of manslaughter'' But the connexion
^ between the omission and the^fatal result mus t not be too
reiDote®.
• Rcf). V. McIVaughten, 14 Cox 576.
' Cf. the similar tendency in murder to say that a merely felonious act
will not suffice, infra pp. 137-8.
» 1.5 Cox 1C3 (K. S. C. 118). * Dig. Cr. Law, 6th eJ. Art. 231.
» Reg. V. Lowe, 3 C. and K. 123 (K. S. C. 132).
8 See Reg. v. Hilton, 2 Lewin 214 (K. S. C. 133) ; Reg. v. Rees, C. C. C.
Sessions Papers, civ. (K. S. C. 133).
IX J Pai'ental Neglect 121
In these two instances, the legal duty of acting arises
from special circumstances whereby the particular person
concerned had taken it upon himself ^ It will usually arise
thus ; for the community at large are seldom under any legal
duties but negative ones, duties to abstain from the com-
mission of certain acts. " If I saw a man, who was not under
my charge, taking up a tumbler of poison, I should not
become guilty of any crime by not stopping him. I am under
no legal obligation to protect a stranger"." But the law itself
does in some cases impose upon a special class of persons
some duty of a positive character, a duty of acting. Thus ^ -^
parents are responsible for the care of their children =^ ; and
consequently, if a child's death is caused, or even accelerated,
by a parent's gross neglect in not providing sufficient food
or clothing for his child, the parent will be guilty of man-
slaughter.
The mere fact that there was some degree of negligence
on the parent's part, will not suffice. There must be a
wicked negligence, a negligence so great as to satisfy a jury
that the prisoner did not care whether the child died or not.
Of course if the wickedness went to such a point that the
parent intentionally left his child to starve to death, he would
be guilty not of manslaughter but of murder. At common
law, it was a good defence that the parent was not sufficiently
well off to provide for the child. But now, under the Children
Act, 1908—8 Edw. VII. c. 67, s. 12 (1)— neglect to provide
food, clothing, medical aid, or lodging for a child is not
excused by the being unable to do so without resorting to
the Poor Law authorities. A cognate question has frequently
arisen as to the liability of a parent for neglecting to procure
1 Even a duty created only by a contract {e.g. signalman's hiring) to
which the person killed was not a party, may suffice; at any rate if it
contemplated the safety of life. See 11 Cox 210, 16 Cox 710, 19 T. L. R. 37.
2 Per Hawkins, J., in Reg. v. Paine {The Times, Feb. 25th, 1880).
3 From the birth, but not before ; Rex v. Izod, 20 Cox 090.
IJj Parental Neglect [ch.
medical aid for his cliildren. The rule of law is now cle;\r,
that his wilful omission to provide medical aid for his child
is such a neglect as comes within the provisions of the Act
of Parliament ; aud it would seem that it was punishable
even at common law. Hence, if it occasions or accelerates
the death of the child, the parent will be guilty of man-
slaughter. (And this will be the case even when the omission
is due to a conscientious or religious objection to the use of
medicine^) The evidence must however shew positively
that death was in fact caused (or accelerated) by the omission;
it is not sufficient to shew a mere possibility that proper
medical treatment might have saved (or prolonged) the
child's life. This liability for neglect is not confined to
parents. Any adult who undertakes the care of a person
who is helpless, whether it be through infancy or even
through mere infirmity 2, will similarly be guilty of man-
slaughter if this person should die through his wicked neg-
lect. And, on the same principle, if a doctor, after having
actually undertaken the treatment of a patient, wickedly
neglects him, and he dies in consequence of this neglect,
the doctor will be guilty of manslaughter.
But the degree of negligence must be not merely
a culpable but a criminal one. It is not enough to shew
that there was such carelessness as would support a civil
action for negligence ; there must be " a w i^ckedjoggli gence'."
Yet how ever e xtreme a man's negligence may have been,
he still will not be answerable for a death which even full
diligence on his part would not have averted or delayed*.
1 Reg. V. Senior, L. R. [1899] 1 Q. B. 283.
2 Rg. V. Instan, L. R. [1893] 1 Q. B. 450.
3 For illustrations see Note A, p. 142 injra. Beg. v. Finney, 12 Cox 0-25
(K. S. C. 120); Reg. v. Noakes, 4 F. and F. 920; Reg. v. Doherly, 16 Cox,
at p. 309. But contributory negligence is not, as in civil casts, a defence;
infra, p. 128.
* Reg. V. Dailoway, 2 Cox 273 (K. S. C. 134).
ix] Manslaughter hy Carelessness 123
(3) Hejnay be doing some act which is quite lawful,
but nevertheless may be doing it negligently^ and therefore
unlawfully; as where a volunteer indulges in rifle practice
in the immediate vicinity of houses". Thus if death be
caused in chastising a child who is under your authority,
and whom you have no intention to kill, the case will be
(a) one of Manslaughter, if the extent of the punishment
were unreasonable, although the instrument used was a
reasonable one. On the other hand, it ^vill be (6) one of
Misadventure, if both the extent and the instrument were
reasonable ; but (c) of Murder, if the instrument used was
utterly unreasonable. And similarly if death be caused
by a workman throwing down rubbish from a roof, though
without his having any idea of doing hurt to anyone, there
are the same three alternatives. For (a) it will be Misad-
venture, if the matter occurs in a village, and the workman
has called out to give warning before throwing the materials
down. But (6) it will be Manslaughter, (1) if, though it
were only in a village, the workman did not even call out ; or
(2) if it were in a town and he only called out, but did not
take the further precaution of looking over. Finally, (c) it
will be Murder, if it were in a town, and he so recklessly
negligent as not even to call out^ In like manner, if a person
die from being plied with liquor by his boon-companions, the
degree of their legal responsibility will depend upon the
motives with which they acted. If from mere unreflecting
conviviality, the homicide would only be one of misad-
venture ; if from a deliberate " practical joke," it would
be^at least a manslaughter ; and, in case that an extremely
excessive amount of liquor was administered, or that there
1 I.e. with a icicked negligence. See Note A, p. 142 infra.
2 Or a motorist drives at a rate which, though within the prescribed speed
limit (contrast p. 120 supra), is too rapid for the corner he is turning.
3 Archbokl, p. 892. * Eex v. Martin, 3 C. and P. 211 (K. S. C. 137).
124 Murder [ch.
was a desire to produce death\ it would be murder'. Maa-
slauo-hter is often spoken of as " the most elastic of crimes";
for the degrees of guilt which may accompany it extend
from the verge of murder to the verge of excusable homicide.
The punishment^ is penal servitude for life or not less than
three years, or imprisonment for not more than two, or a fine.
The annual number of cases of manslaughter is a little
under, and that of murders a little over, one hundred and
fifty ; as against nearly three thousand suicides.
(Ill) Murder. The word * murder,' from the Germanic
movth\ originally denoted (1) a secret killing. Hence the name
was applied to the fines imposed by William the Conqueror
upon any hundred where a Norman was found secretly killed.
The dead man was presumed to be a Norman unless there was
express ' presentment of Englishry.' After these fines (then
already nearly obsolete) were abolished by Edward III. in 1340,
the word ' murder ' necessarily lost its earlier meaning, and
came to be applied as a name for (2) the worst kinds of homi-
cide. (Those kinds of homicide which, as they were neither
justifiable nor even cases of misfortune or self-defence, were
capital felonies, but yet were not of so bad a kind as to be
called murders, remained undistinguished by any particular
name.) Finally, when by 23 Hen. VIII. c. 1 the benefit of
clergy was largely taken away from ' murder of malice afore-
thought,' the term ' murder ' soon became (3) limited, as it
still is, to the form of homicide dealt with by this statute. This
phrase ' malice aforethought ' was not new. It had been in
use since the thirteenth century' (even before the abolition of
Englishry) ; for ' malitia excogitata ' (or ' praecogitata ') was
familiar under Henry III. as one of the tests of unpardonable
1 Ren. V. Paine, Sessions Papers, xci. 537—592 ; The Times, Feb. 25, 1880.
2 Reg. V. Packard (K. S. C. 137) ^ 24 and 25 Vict. c. 100, s. 5.
* For the history of the word "murder" see Sir James Stephen's Ilist.
Criiii. Law, iii. 40; and Polioclc and Maifland, ii. 483.
» See Maitland's Collected Papers, i. 308.
ix] What conMitiites a Killing 125
{i.e., capital) homicide. But at the time when the phrase
began to be used the word 'malitia' meant rather the wrong-
ful act intended, than the intention itself; still less had it
any particular reference to that special form of evil intention,
viz., hatred, which ' malice ' noAV popularly denotes^
Murder, in this third and final sense, may be defined in
antique phraseology Avhich has been classical ever since the
time of Lord Coke, as (a) unlawfully {^) killing (7) a reason-
able creature, who is (8) in being and (e) under the King's
peace, (^) with malice aforethought either express or implied ;
{rj) the death following within a year and a day ". Of these
seven constituents, the first, viz. " unlawfulness," distinguishes
murder from all non-felonious homicides, whether ranked
as justifiable or only as excusable ; and the sixth, " malice
aforethought," distinguishes it from those unlawful homicides
which rank only as manslaughter. The second, third, fourth,
fifth and seventh are as necessary in manslaughter as in
murder. But, as it is in cases of murder that they have
received the fullest judicial consideration, it has seemed
more appropriate to postpone until now our discussion of
them. We will consider the last six points successively.
(1) Killing. In murder, as in manslaughter, a man may
be held liable for a homicide which he effected, not by any
direct violence, but only through some protracted chain of
consequences; his own last act in it being remote, both in
time and in order of causation, from the death which it
brought about. This is vividly illustrated by two old cases
mentioned by Blackstone^ In one, a "harlot" abandoned
her new-born child in an orchard, and covered it over with
no better protection than leaves. Birds of prey being then
common in England, a kite struck at the infant with its
claws, and thereby inflicted wounds which caused the death
of the child. The woman was arraigned of murder and
> Pollock and Maitland, ii. 467. » 3 Coke lust. 47.
» 4 Bl. Comm. 197.
126 Kill lit (J by Perjury [ch.
executed*. The other case is that of a son who took his
sick father from town to town in cold weather, against the
old man's will, and so hastened his deathl Yet in murder,
just as we saw in the case of Attempts*, there is a point at
which the law refuses to continue to trace out chains of
causation ; and beyond which, therefore, any act is regarded
as too remote to produce guilt. But here, as before in
Attempts, it is impossible to lay down any general rule for
fixing this point; and the utmost that can be done is to
suggest it approximately by illustrative instances. The
most noteworthy is the rule that killing a man by perjury
is not murder*. That rule, though it has been doubted by
some lawyers, has the sanction of so great a criminal judge
as Sir Michael Foster'; and is supported by the fact that,
even in an age when the definition of murder was less
narrowly construed than now, and when judges were more
pliant to the Crown, the lawyers of James II. did not venture
to indict Titus Gates, the inventor of the imaginary " Popish
Plot," for the murder of the men whose lives he had sworn
away. Yet their desire to see him expiate his guilt by
death, if it were legally possible, is suflSciently evidenced by
the sentence passed (and executed) upon him when he was
prosecuted for perjury — viz. two floggings of about two
thousand lashes each. It used, again, formerly to be thought
that killing by a mental shock would not be murder; but, in
the clearer light of modern medical science, the present
tendency of legal opinion is to regard such a cause of death
as not too remote for the law to trace*.
1 Crompton's Justice 24 (K. S. C. 92).
2 Y. 13. 2 Ed. III. f. 18, Hil. pi. 1 (K. S. C. 92). » Supra, p. 80.
•* Rex V. Macdaniel, Leach 52 (K. S. C. 97). But the Roman jurists
treated such a perjurer as a murderer ; Dig. 48. 8. 1. In England, killing
by Witchcraft was not murder; though made capital in 1562.
'-> Foster's Groion Law, 130.
« Rex V. Haijward, 21 Cox 693; WilhiHsua v. JJowutuii, L. R. [1897]
2 Q. B. 57.
ix] Remote causes of death 127
An act may amount to an unlawful killing, either as a
murder or a manslaughter, even though it be so remote m
the chain of causes that it would not have produced death
but for the subsequent acts or omissions of third parties^;
unless this conduct of the third parties were either wilful
or, at least, unreasonably negligent''. The rule extends even
to similar intervening conduct on the part of the deceased
victim himselfl The rationale of it is, that a person who
brought the deceased man into some new hazard of death may
fairly be held responsible if any extraneous circumstances (that
were not intrinsically improbable) should convert that hazard
into a certainty. An illustration, noteworthy both for the
rank of the criminal and also because nearly twenty years
elapsed between his crime and his trial, may be found in the
case of Governor Wall*. He was tried and executed, in 1802,
for the murder of Serjeant Armstrong, on the island of Goree,
by sentencing him to an illegal flogging ; though the illness
thus caused might not have produced death, but for Arm-
strong's own rash act in drinking spirits whilst he was ill.
So in another case', a man, who had been severely cut across
one of his fingers by an iron instrument, refused to allow the
finger to be amputated, although warned of the danger he
was running. Lock-jaw came on, and he died. His assailant
was convicted of murder ; Maule, J., holding that it made no
difference whether the wound was instantly mortal in its
own nature, or became a cause of death only by reason of
1 Contrast Reg. v. Hilton, 2 Lewin 214 (K. S. C. 133), with Reg. v. Lowe,
3 C. and K. 123 (K. S. C. 132).
« 1 Hale P. C. 428.
2 See Governor Wall's Case, 28 State Trials 51 ; and contrast Reg.
V. Holland, 2 M. and R. 351 (K. S. C. 93) with Reg. v. Sawyer, C. C. C.
Sessions Papers, cvi. (K. S. C. 94). Cf. Gomvionwealth v. Hackett, 2 Allen 141.
In Scottish law, the corresponding rule does not thus include the conduct of
the deceased or the mere omissions of third parties.
* Loc. cit.
' Reg. V. Holland, 2 M. and 11. 351 ^K. S. C. Uo). Cf. a similar case in
C. C. C. Sessions Papers, hnwu 259.
128 What constitutes Birth [ch.
the deceased's not having adopted the best mode of treat-
ment. Much more recently, it was held by Baron ]\Iartin»
that if an engine-driver negligently causes a collision, and a
passenger, on seeing this collision to be imminent, jumps out
of the train and is killed by the jump, the liability of the
engine-driver for the manslaughter of this passenger will
depend on the question whether a man of ordinary self-
control would have thus jumped, or only a man unreasonably
timid. In like manner, Quain, J., held that if a man who lay
drunk in the middle of a road, and did not get out of the
way of a vehicle, were driven over by it and killed, the driver
would be indictable. For "contributory negligence" is no
defence in criminal law-.
(2) A reasonable creature. Here " reasonable " does not
mean " sane " but " human." In criminal law a lunatic is
a persona for all purposes of protection, even when not so
for those of liability.
(8) In being, i.e., not a mere unborn child^ There can
be no murder of a child which dies either before being born
or even whilst being born ; only of one that has been born,
and, moreover, born alive. For pui-jjoses of criminal law,
— and also for those of property law, e.g., to become a holder
of property and so transmit it again to new heirs, or to
enable the father to obtain courtesy of his wife's lands —
mere birth consists in extrusion from the mother's body,
i.e., in having "come into the world." Partial extrusion is
not sufficient; if but a foot be unextricated, there can be
no murder; the extrusion must be complete, the whole
» Reij. V. Monks, C. C. C. Sessions Papers (1870), lxsu. 424.
2 C. C. C. Sessions Tapers, lxxvii. 354. See Reg. v. Dant, L. and C.
567 (K. S. C. 126) per Blackburn, J. ; Reg. v. Kew, 12 Cox 455 (K. S. C. 135)
per Byles, J. ; Reg. v. Swiudall, 2 C. and K. 230 (K. S. C. 74) per Pollock,
C. B. But it may well mitigate the sentence; Rex v. Stuhhs, 8 Cr. App. K.
238. « 3 Lib. Ass. pi. 2 ; 22 Lib. Ass. pi. 94.
ix] Concealment of Birth 129
body of the infant must have been brought into the worlds
But it is not necessary that the umbilical cord should have
been severed*. And to be born alive the child must have
been still in a living state after it had quitted the body of
the mother. Hence that life then still existed must be
actually proved; and this may be done by giving evidence
of any cry, or breathing, or pulsation, or movement, after
extrusion. But it is not necessary that the child should
have continued to live until it was severed from the mother;
or even until it could breathe. For a child may not
breathe until some time after full extrusion ; though, on the
other hand, infants sometimes breathe, and even cry, before
they arc fully extricated.
The birth must tlms precede the death; but it need not
also precede the injury. Thus an act which causes a child
to be born much earlier than in the natural course, so that
the child when bom is rendered much less capable of living
and accordingly soon dies, may itself amount to murder.
It may be convenient here to digress for a moment from
murder to another offence; and to mention that on the
indictment of any person (whether the mother or not) for
the murder of a new-born infant, the jury may find no
sufficient proof of murder, and yet may find proof of the
statutory offence of " endeavouring, by secret disposition^ of
its dead body, to conceal its birth " (24 and 25 Vict. c. 100,
8. 60). For in this crime, unlike murder, it is immaterial
whether the child was bom alive or not. In such cases they
are permitted by the statute to convict of this offence of
Concealment of Birth, without the delay of any fresh trial or
fresh indictment. This statutory offence (which, of course,
1 7?f.rv.Po»Zton(1832),5C. andP. 330. Not so in India. Cf. p. 337 f/i/m.
2 Rex V. Crutchley, 7 C. and P. 814; Eeg. v. Reeves, 9 C. and P. 25.
The vague phrases, "separate existence" and "independent circulation,"
should be avoided, as derived from an obsolete physiology.
3 E.g. throwing into a pond.
K. 9
130 The Kings Peace [ch.
may itself form the subject-matter of an express indictment)
is a misdemeanor ; and is punishable by two years' imprison-
ment, with hard labour. It should be noted that it is no
crime to conceal a birth merely from some particular indi-
vidual alone. "There would be a hardship in punishing
a girl for concealment from her master, if there had been
no concealment from her mother'."
(4) Under the King's peace. "The Eling's majesty is,
by his office and dignity royal, the principal conservator
of the peace within all his dominions"." Yet there was
a time when the King's peace was only partial in its opera-
tion, and merely supplemented that national peace which
it finally supplanted. The national peace, which apparently
had its origin in the sanctity of the homestead, was pro-
tected only in the local courts ; and these were weak. The
King's peace on the other hand was enforced with vigour by
royal officers of justice. At first it applied only in certain
holy seasons, or to persons to whom it was specially granted
by the King, or to places which were under the King's
special protection (such as the precincts of his house and
the four great roads). These limits, however, soon became
indefinitely extended. "The interests of the King and of
the subject conspired to the same end'." The King profited
in the way of fees, and the subject was anxious to appeal
to the one authority which could not anywhere be lightly
disobeyed. Accordingly, "after the Conquest, the various
forms in which the King's special protection had been given
disappear, or rather merge in his general protection and
authority\" But even then the King's peace did not arise
throughout the nation at large until he proclaimed it; and
it lasted only till his death. On the death of Henry I., as
' Mr Justice "Wright, Draft Criminal Code for Jamaica, p. 103.
' 1 Blackstone Comm. 350.
3 Pollock, Oxford Essays (The Kiug'a Teace), p. 83.
♦ Ibid. p. 87.
ix] The Kings Peace 131
the chronicler tells us, " Then was there seen tribulation in
the land ; for every man that could forthwith robbed another."
Edward I. was away in Palestine when his father died ; and,
to avoid the confusion which would otherwise have arisen,
the magnates themselves proclaimed the Bang's peace, in
spite of his absence. Henceforward, even the King's death
was never regarded as suspending the royal peace.
A man attainted of praemunire was not under the King's
peace; and therefore, until 5 Eliz. c. 1, it was not murder
to kill him^ On the other hand, to kill an outlaw was
murder'^ ; and even a condemned criminal^ or an alien enemy*
is under the King's peace. Hence an alien enemy cannot law-
fully be killed except in the actual course of true war. In
such, of course, he may; so it appears that if the captured crew,
on board a prize brought into British waters, should endeavour
to release themselves from their British captors, and in the
consequent struggle one of the captives should be killed by
one of the captors, the homicide' would not be felonious.
The law (as we are often told) is no respecter of persons.
Without being universally true, this is a principle which has
always applied with special force to the law of Homicide.
Thus the villein could not be killed by his lord; nor could
the slave, even in Anglo-Saxon times, be killed by his master,
for the laws of Alfred inflicted a fine on the master who
murdered his slave, and this at a time when most homicides
admitted of being atoned for by mere payment of a fine.
The King's peace was powerful to protect both villein and
slave from the extremity of tyranny. It is instructive to
notice that, even in much more recent times, a West Indian
legislature imposed on masters no severer responsibility than
Anglo-Saxon legislation had done in their dealings with the
' Y. B. 2 Ed. m. fo. 6, pi. 19. '' 1 Hale P. C. 433.
=» Y. B. 35 H. VL 57; Commonwealth v. Bowen, 13 Mass. 366 (K. S. C. 91).
* 1 Hale P. C. 433. E.g., a prisoner of war; 1 Taunt. 32, 136.
6 Per James, L.J., in Dyke v. Elliott, L. R. 4 P. C. 184.
9-2
132 Malice aforethought [ch.
lives of their slaves. Tims one of the Acts of Barbadoes' ran
as follows : " If any slave under punishment by his master,
for running away or any other misdemeanor towards his
master, unfortunately shall suffer in life(!) or member, no
person whatsoever shall be liable to a fine. But if any man
out of wantonness or cruel intention shall wilfully kill a slave
of his own, he shall pay into the public treasury £15 sterling."
(5) Malice afuretho light The preceding elements in
the definition of murder are common to all forms of criminal
homicide; but this fifth point is the distinctive attribute
of those homicides that are murderous. When, as we have
seeia", the legislature determined to take away the "benefit
of clergy" from the most heinous cases of homicide, it
adopted the already familiar notion of " malice aforethought "
{malitia praecogitata) as the degree of wickedness which
should deprive a homicidal " clerk " of his ancient right to
escape capital punishment. The phrase is still retained in
the modern law of murder ; but both the words in it have
lost their original meanings. For the forensic experience
of successive generations brought into view many cases of
homicide in which there had been no premeditated desire
for the death of the person slain, yet which seemed heinous
enough to deserve the full penalties of murder. These
accordingly, one after another, were brought within the
definition of that offence by a wide judicial construction of
its language. Hence a modem student may fairly regard
the phrase "malice aforethought" as now a mere arbitrary
symbol. It still remains a convenient comprehensive term
for including all the very various forms of mens rea which
are so heinous that a homicide produced by any of them will
be a murder. But none the less it is now only an arbitrary
symbol. For the " malice " may have in it nothing really
I No. 329, p. 125.
" Hu^ra, p. I"i4.
ix] hulirect Intention 133
malicious; and need never be really "aforethought," except
in the sense that every desire must necessarily come before
— though perhaps only an instant before — the act which is
desired. The word "aforethought," in the definition, has thus
become^ther false or else superfluous. The word "malice"
is neither; but it is apt to be misleading, for it is not em-
ployed in its original (and its popular) meaning. A desire
for the death of the individual who was killed — or, as for
distinctness' sake it may be termed, " Specific Malice " — is
not essential to murder. Blackstone, indeed, in his treatment
of this crime, sometimes uses the word Malice as if in this
narrow sense; but at other times he includes under it, and
more correctly, other states of mind far less guilty. For
there are six several forms of mens rea which have been held
to be sufficiently wicked to constitute murderous malice.
They are the following:
(i) Intention to kill the particular person who, in fact,
was killed. This, of course, is the most frequent of all the
six forms.
(ii) Intention to kill a particular person, but not the
one who actually was killed^- If a man shoots at A with
the intention and desire (or, as Bentham would express it,
the "direct intention") of killing A, but accidentally hits
and kills B instead, this killing of B is treated by the law
not as an accident but as a murder'-. In old legal phrase,
malitia egreditur personam ; the meris rea is transferred from
the injury contemplated to the injury actually committed.
Austin has pointed out that such a murderer may have had
any one of three mental attitudes with regard to the prospect
of this latter injury. He may have —
(a) Thought it probable that he would hit B instead
of A ; and have risked doing so, though feeling no desire
1 Beg. V. Salishury, Plowden 100 (K. S. C. 102). Cf. Orsini; infra, p. 413.
- Or manslaughter, if A has given such provocation as would reduce the
killing of him to manslaughter; Rex v. Gross, 23 Cox 455.
134 Intention to hurt [ch.
at all that B should be hit. Austin classes this as an
" intention " ; and Benthara gives it the specific name of
"indirect intention." But in ordinary parlance it is not
called "intention" at alP; because there was no desire of
killing B.
(b) Thought it improbable that he would do so. This,
Austin denominates " rashness."
(c) Not thought of it at all. This, Austin denominates
" heedlessness."
(iii) Intention to kill, but without selecting any particular
individual as the victim. This has been conveniently called
"universal malice." It is exemplified by the case put by
Blackstone, of a man who resolves to kill the next man he
meets and does kill him"; and by the more frequent and
more intelligible case of Malays who madden themselves,
with hemp, into a homicidal frenzy, and then run "amok";
and by that of the miscreant who, a dozen years ago, placed
an explosive machine on board an Atlantic liner about to
sail from Bremerhaven, in order to get the money for which
he had insured part of the cargo. It is also exemplified by
such atrocities as those attributed to the early settlers in
Queensland, who are said to have rubbed strychnine into the
carcases of sheep and then placed them in the bush, in hopes
of their being eaten by the aborigines.
(iv) Intention only to hurt— and not kill — but to hurt
by means of an act which is intrinsically likely to kill.
There is an old case of a park-keeper who, on finding a
mischievous boy engaged in cutting some boughs from a tree
in the park, tied him to his horse's tail, and began to beat
him on the back ; but the blows so frightened the horse that
it started off and dragged the boy along with it, and thus
injured him so much that he died'. The park-keeper was
1 Cf. p. 148 infra. "^ 4 Bl. Coram. 200.
3 Rex V. Ilalloway (1G28), Cio. Car. 131 (K. S. C. 103).
ix] Mere Rashness 135
held to be guilty of murder. So recently as 1885 a very
similar ease was tried at the Lewes Assizes. In it, a cow-
boy had tied a child, who annoyed him whilst he was milking,
to one of the hind legs of a cow ; but the cow took fright at
this, and started off, and in its course dashed the child's head
against a post. Here, the jury, with the approval of the
judge, convicted the prisoner of manslaughter only. The
case is of couree distinguishable from Hallo way's; inasmuch
as the cow, being both a less sensitive and a less active
animal than the horse, was not so likely to do a serious
injury. But the more lenient verdict is probably to be
attributed less to this consideration than to the general
tendency of modem tribunals to relax the severity of the old
law of murder.
We have already seen that even a parent or master, legally
entitled to inflict corporal punishment upon a child, will be
guilty of murder if he should, however unintentionally, kill
the child by inflicting such punishment in some mode which
was obviously likely to cause death '. Thus in Rex v. Grey^,
where a blacksmith was charged with the murder of his
apprentice by striking him on the head with a bar of iron,
it was held that the use of so dangerous an instrument
"is all one as if he had run him through with a sword."
And, similarly, a mother who had punished her child by
stamping on its body, and had thereby killed it, was held
guilty of murder^
(v) Intention to do an act which is intrinsically likely
to kill, though without any pui-pose of thereby inflicting any
hurt whatever. Such cases are usually due to the state of
mind which Austin specifically terms "rashness^" Of this
character is the intention of any workman who carelessly
throws things off the roof of a house in a toAvn, without
» Supra, p. 123. ^ Kelyng 64 (K.S. C. 105).
* Cited in Eex v. Gre^j. * Supra, p. lol.
136 Felonious purpose [ch.
looking over the edge to see if anyone is likely to be struck,
or giving any wa^ning^ We may add, as an instance of this
fifth form of mens rea, Blackstone's case of the " unnatural "
son who carried his sick father about, out of doors, in cold
weather, which hastened the old man's death ». (This latter
case, the printers of some thirteen successive editions of
Stephen's Commentaries have unwittingly represented as if
it had been one of a deliberate intention to kill, by printing
" rich " instead of " sick " !)
To treat this class of intentions as amounting to a
murderous malice is perhaps impolitic; as being a more
severe treatment than modem public opinion cordially ap-
proves. It certainly is felt by juries to be so. This was
forcibly shewn at the trial of Leon Sern^, at the Central
Criminal Court in 1887 ». He set fire to his house in the
Strand, which he had insured for considerably more than its
value ; and in the fire his two boys perished. He had been
a kind father ; and he had no intention of causing the death
of the boys. On an indictment for their murder, he was
acquitted. The acquittal seems to have been due simply to
the jury's dislike of the doctrine of "constructive" malice;
for when indicted, in the following month, for arson, he
was convicted, (and was sentenced to twenty years' penal
servitude). Yet if guilty of arson, he undoubtedly was legally
guilty of murder.
(vi) (The older authorities add), Intention to commit a
felonious act even though it be one unlikely to kill.
The oldest text-books had extended this principle to any
unlawful act, but Sir Michael Foster limited it to felonious
acts. Since his time, however, the efi'ect of the rule, even
as thus limited, has become enlarged, in consequence of
various assaults and other acts having by statute been made
1 Supra, p. 123. Bex v. Hull (1664), Kelyng 40 (K. S. C. 125).
» Supra, p. 126. Y. 13. 2 Ed. lU. f. 18, Hil. pi. 1 (K. S. 0. 92).
•* Beg. V. Seme, 16 Cox 311 (K. S. C. 100).
IX J Felonious purpose 137
into felonies^ The illustration which Foster^ gives of this
sixth rule is that of a man shooting at a fowl in order to
steal it, and thereby accidentally killing a bystander. This,
according to his view, would be murder^; though if the
intent had been merely to kill (and not to steal) the fowl,
or if the bird aimed at had been a mere sparrow, the homicide
would only have been manslaughter, as the act intended
would not be a felony. Similarly, if a thief gives a man
a push with intent to steal his watch, and the man falls to
the ground and is killed by the fall — or if a man assaults
a woman, with intent to ravish her, and she, having a weak
heart, dies in the struggle — such a homicide would, according
to Foster's rule, be murder*.
Yet the severity of this rule has led to its being doubted.
As early as 1773, in Lad's Case (Leach 96), the judges hesitated
to say whether it would be murder to cause a child's death
by a rape. Both Stephen, J.', and Huddleston, B., instructed
juries that the Court for Crown Cases Reserved would prob-
ably not uphold Foster's rule. The draft Criminal Code
omitted it. Such an omission would still leave such felonies
as are intrinsically likely to cause death to be dealt with as cases
of our last mentioned rule. No. (v); though homicide resulting
from any felony which was unlikely to cause death would be
only a case of " involuntary " manslaughter^ On the other
hand, Lord Alverstone, L.C.J., has said'' that " The experience
1 See Stephen's Dig. Crim. Law, p. 411.
- Foster's Crown Laic, 258.
2 See the remarks of Blackburn, J., in Reg. v. Pembliton, L. R. 2 C. C. R.
at p. 121 (K. S. C. 159). And see 2 F. and F. 5S2
■» Per Stephen, J., in Eeg. v. Serne, 10 Cox 311 (K, S. C, 106).
See Reg. v. Seme'; Reg. v. Horsey, 3 F. and F. 287 (K. S. C. 109) ; and
Stephen, Hist. Crim. Law, iii. 79. * Supra, p. 119.
7 In charging the grand jury at Liverpool, March 9, 1909. Cf. Reg.
V. Barrett {Times, 2i April, 1868).
138 Resisting Justice [ch.
of the judges shows that there are so many cases of death
caused by attempts to commit felonies, that, for the protec-
tion of human life, it is not desirable to relax the rule which
treats such crimes as murders."
It IS iiighly to be desired that some authoritative decision
should be given as to this alleged sixth form of murderous
malice; were it only for the sake of making it clear how to
deal with the too-frequent cases in which death results from
an abortion which has been procured feloniously, yet in such
a manner as seemed to involve no appreciable risk to the
woman's life*. Formerly the judges regarded it as clear law
.that even such cases amounted to murder, and they passed
' sentences of death accordingly^ But in recent years these
sentences have usually been commuted by the Crown*. The
desire to avoid this unseemly divergence between the letter
of the law and its practical operation has recently led some
judges, in such cases, to rule that if the jury think the
prisoner could not reasonably have expected death*to result,
they may convict him of a mere manslaughter.
Some books include, amongst the cases of malice that
thus give the character of murder to homicide produced by
acts that were not likely to kill, one form of intention which
would not even be felonious. Thus, to the intent to commit
a felony, they add the intent knowingly to oppose by force an
officer of justice, when engaged in arresting or imprisoning
an offender. Sir James Stephen, for example, maintains
1 As to the filightness of tho risk involved iu the induction of an abortion,
when performed with an expert's skill, see Fothergill's Midwifery, ed. 1900,
p. 166. * Jiex V. Russell, 1 Moody 356 ; Beg. v. Gaylor, D. and B. 288.
3 As in Reg. v. Cnlmore, (C. C. C. Sessions Papers, xcii. 553, Times
August 9, 1880), where Hawkins, J., in passing sentence, had said, " Tiiat the
I offence amounts to wilful murder, is the law as it at present stands ; and as,
I in all human probability, it will exist in time to come."
* Or grievous bodily harm; Rex v. Lumlcy, 22 Cox 835, Cf. Reg. v.
Whitmarsh, 62 J. P. 711.
ix] FresiimjJtions of Malice 139
that even if the opposition took no more violent form than
merely that of tripping up the officer, yet, should his fall
accidentally kill him, the case would be one of murder^
But he appears to have drawn this severe doctrine merely
from general language used in the old authorities ; and there
is, as he admits, no decision, nor even an express dictum of
any judge, to be cited in support of it. In all the decided
cases in which officers were killed, the actual means appear
to have been intrinsically dangerous ones. Hence, in view
of the modern tendency to narrow even the accepted rules as
to constructive malice in murder, it may well be doubted
whether the Court of Criminal Appeal would support this
less definitely established doctrine.
The existence of these six various forms of " murderous
malice " shew it to be much wider than mere " malice " in
the popular sense, viz., ill-will ; though much narrower than
malice in the technical legal sense, viz., mens rea. Every
intentional homicide is prima facie presumed to have been
committed with a murderous malice'^; so that the defendant
has the burden of shewing, if he can, that the circumstances
were such as to reduce it to a manslaughter or a non-criminal
homicide. But he may, of course, do this even by mere
cross-examination of the Crown witnesses themselves^ As
regards the malice which is to be imputed to the various
members of a group of wrong-doers when one of them commits
a homicide, the rule is that, if several persons act together
in pursuance of a common intent, every act done in further-
ance of it by any one of them is, in law, done by all. Hence
if persons have agreed to waylay a man and rob him, and
they come together for the purpose armed Avith deadly
weapons, and one of them happens to kill him, every member
» Dig. Cr. Law, Art. 224. Illustration 11.
2 See Rex v. Thomas, 7 C. and P. 817 ; and the trial in Massachusetts,
in 1850, of Prof. Webster, of Harvard University, for the murder of
Dr Parkman (Bemis's Report, p. 457). Cf. 9 Cr. App. E. G3.
140 Punishment for murder [ch.
of the gang is lield guilty of the murder. But if their agree-
ment had merely been to frighten the man, and then one of
them went to the unexpected length of shooting him, such
a murder would affect only the particular person by whom
the shot was actually fired'.
(6) A year and a day. " Day " is here added merely
to indicate that the 365th day after that of the injury is to
be included. Such an indication was rendered necessary by
an old rule (now obsolete) that, in criminal law, in reckoning
a period from the doing of any act, the period was to be
taken as beginning on the very day when this act was done'.
The doctrine that a charge of homicide could not be
sustained unless the death ensued within a limited period
after the injury that caused it, was a wise precaution in
view of the defectiveness of medical science in mediaeval days.
In Holland, indeed, so brief a period as six weeks was
adopted ; but the modern Roman-Dutch law of South Africa,
in view of the present advanced state of forensic medicine,
recognises no time-limit, (Nathan, § 2605). Nor is any
recognised in Scottish law (Hume I. 186); nor in the Indian
Penal Code. But in England the common-law rule has
recently been reasserted by the Court of Criminal Appeal,
even in a case of manslaughter; {Rex v. Dyson, L. R. [1908]
2 K. B. 454).
The punishment of murder is death I In early times,
those murders which constituted an act of petit-treason
{e.g., where a person was murdered by his wife or servant,
or a bishop by one of his clergy) received an enhanced punish-
ment. The offender, instead of being taken in a cart to the
scaffold, was dragged thither on a hurdle ; and, if a woman,
was not hanged but burned, as in the case of Catherine
Hayes, in 1726, familiar to readers of Thackeray. By 31 Vict.
' See Reg. v. Macklin, 2 Lewin 225 (K. S. C. 100).
2 Hob. 139. But now see Radclyffe v. Bartholomeio , L. R. [1892] 1 Q. B. 161.
s Except for murderers not yet sixteen. Supra, p. 51.
ix] Homicide abroad 141
c. 24, s. 2, every execution /or murder must take place within
the prison walls, before such persons only as the sheriff may
admit. It should be noted that this enactment does not
extend to the other three offences which still continue to
be punishable with death, viz. : — treason, piracies that are
accompanied by any act which endangers Hfe^ and the arson
of a royal dockyard or man-of-war^ or of any ship in the port
of London*. But, since 1828, petit-treason has been entirely
assimilated to ordinary murder*.
As murder is so heinous an offence, the legislature has
enacted severe penalties for even mere incipient approaches
to it. Thus any conspiracy to murder, though it still remains
only a misdemeanor, is by statute punishable with ten years'
penal servitude^, a far higher maximum of punishment than
is allowed in the case of many felonies. And every attempt
to commit a murder is now made by statute® a felony, and is
punishable with penal servitude for life.
In concluding this subject, it may be added that murder
affords a noteworthy exception to the general legal rule that
" criminal jurisdiction is territoriaF." Every nation tries and
punishes all crimes committed in its own territory (or on its
own ships), whether committed by its own subjects or by
foreigners. Conversely, on the same principle, a nation
usually does not concern itself with crimes committed any-
where else, even though committed by its own subjects. But
to this latter branch of the rule, homicide has been made
an exception in English law, by a succession of statutes
commencing as far back as Henry VIII. The enactment
now in force is 24 and 25 Vict, c. 100, s. 9 ; under which the
courts of any part of the United Kingdom may try a British
1 7 Wm. IV. and 1 Vict. c. 88.
» 12 Geo. III. c. 24, s. 1 ; 7 and 8 Geo. IV. c. 28, ss. 6, 7.
» 39 Geo. III. c. 69, s. 104. * 9 Geo. IV. c. 31, s. 2.
6 24 and 25 Vict. c. 100, s. 4. « Ibid. ss. 11, etc.
» Infra, p. 411. Macleod v. Att.-Gen., L. K. [1891] A. C. 455.
142 Homicide abroad [en. ix
subject for murder or manslaughter committed by him any-
where outside the United Kingdom, whether within or
without the Empire, provided it were on land. The power
th»is does not extend to homicides committed on a foreign
ship. It is immaterial whether the person killed were a
British subject or not. (It may be convenient to add here
that similarly Bigamy, when committed by a British subject,
even m a foreign country, may, by virtue of s. 57 of the same
statute, be tried in the United Kingdom.)
NOTE A.
Criminal Negligenck
The line between the merely ' tortious ' negligence which is actionable
civilly, and that grosser negligence which may result in the guilt of Man-
slaughter, cannot be drawn in abstract terms. The demarcation may, how-
ever, be illustrated by contrasts. Motorists have been allowed to be convicted
for homicides produced by driving at a rate of sixteen miles an hour down
Oxford Street at ten a.m. (C. C. C. Sess. Pap. cxlvii. 677), or at twenty-live
miles an hour on a country road that was slippery with ice (clh. 340);
or one produced by steering out on the wrong side, to pass a tramcar that
stood lengthways across the motorist's course (cLviir. 33). And so has a
drunken van-driver who took his horses 'galloping like a fire-engine' along
the wrong side of the road (cliv. 38(5). But it was held by Ridley, J., to be
no manslaughter where the negligence by which a motorist caused a death
was only that of getting out of the line of trallic and proceeding on the wrong
side (cxLix. 314) ; or that of continuing his journey after finding that his
steering-gear had got out of order (cxlix. 232). The well-known case of
Dixon V. Bell (o M. and S. 198, Kenny's Cases on Tort, p. 587) is so close to
the dividing-line that authorities are disagreed as to whether or not the
negligence shewn in it would be sufficient for Manslaughter.
CHAPTER X.
OFFENCES AGAINST THE PERSON THAT ARE
NOT FATAL.
Crimes of this class are of two sharply distinguished
types, the sexual and the non-sexual ; the one springing from
lust, the other from anger.
To these offences that are of the former type, a very brief
reference will be sufficient for the purposes of the present
volume. The mediaeval English law adopted, in all their
entirety, the lofty ethical teachings of Christianity as to the
mutual relations of the sexes. Those teachings are, for
example, strictly followed by the common law in its doctrine
of contract, when deciding what agreements shall be regarded
as too immoral for the courts to enforced
And the same teachings were enforced by punitive sanc-
tions in the ecclesiastical courts ; a jurisdiction which, though
long obsolete in practice, has never been formally abolished ^
But the common law had no penal prohibitions of similar
comprehensiveness ; its criminal rules taking cognisance only
of those grosser breaches of sexual morality that were ren-
dered peculiarly odious, either by the abnormality of the
form they took^ or by the violence with which they were
accompanied; aggravations to which the legislature subse-
quently added that of the tender age of the female concerned
in them*. Hence, the voluntary illicit intercourse of the
1 Anson on Contracts, Part n. ch. 5, s. 1, e (8th ed. p. 248).
2 Stephen, Big. Gr. Law, Art. 170; Hist. Cr. Laio, ir. 396—429. See
the authorities cited arguendo in Phillimore v. Machon, L. E. 1 P. D. 481.
3 Stephen, Dig. Cr. Laic, ch. xviii.
* Ibid. ch. XXIX. And her near consanguinity; see the Punishment of
Incest Act, 1908; 8 Edw. 7, c. 45.
144 Bodily injuries [en.
sexes, even though it might take the form of mercenary
prostitution or of an adulterous violation of marital legal
rights, furnished no ground for a criminal indictment. Such
a limitation of the sphere of penal law, like the modern
abandonment of the ecclesiastical courts' penalties, is abun-
dantly justified by the considerations, which have been already
set out^ that distinguish those injurious acts that can pru-
dently be repressed by criminal sanctions, from such as will
more fitly be left to be restrained by the penalties^ of soci al
opinion and of religion.
' Fi'om this class of offences against the person we may
pass to those that are unconnected with sexual relations.
These call for a detailed consideration. They fall readily
into two groups: according as the crime does or does not
leave behind it, upon the sufferer's body, some actual hurt.
The former alternative, as the graver, must first be con-
sidered.
A. Offences where actual bodily injury is occasioned'-.
The present law regarding this aggravated class of crimes
is entirely the creation of statutes. Wounding and maiming
did, in early times, entitle the sufferer to bring an ' appeal' of
felony'; and if the appeal were successful the ANTong-doer
forfeited life and member. But these appeals seldom proved
successful ; as they were usually quashed for some technical
informality ; and if the appellee were then arraigned at the
King's suit he received no heavier punishment than that of
a mere misdemeanor — imprisonment or fine. Appeals for
wounding consequently died out ; though the injured parties,
if unwilling to indict the offender for a mere assault, had
still the alternative of a civil remedy in the shape of an
action of trespass* to recover pecuniary damages. But
» Suina, p. 28.
« See Stephen, Hist. Cr. Law, m. 103—120; Dig. Cr. Law, Arts. 257—
268. ' Siqyra, p. 18. * Pollock and Maitland, ii. 487.
x] Felonious Wounding 145
subsequently, by various statutes commencing with the
Coventry Act, 22 and 23 Ch. II. c. 1', offences of this class
have again been ex})()sed to a more adequate punishment.
The present law on the subject is, however, as Mr Justice
Wright has said, " singularly fragmentary and unsystematic"."
It is mainly to be found in the Act of 1861 consolidating
the enactments that dealt with offences against the person
(24 and 25 Vict. c. 100). By this Act the graver offences are
made felonies, the others ranking as misdemeanors. We
may mention some salient instances of each class.
1. Felonies.
(a) It is a felony, punishable with penal servitude for
life, u nlaw f ully and maliciously to wound or cause any grievous
bodily harm to anyone — or shoot (or even attempt to shoot)
at him — with intent to maim, disfigure, disable, or do any )
other grievous bodily harm, or prevent an arrests
Some of the phrases here used are so technical as to need
explanation. Thus, to constitute a "wound" the continuity
of the skin must be broken; i.e., that of both* skins,
cutis vera as well as epidermis. Hence a mere scratch in
the latter is not a wound^; nor will it even suffice that
b6nes~halv^e~T)eerriractured if the skin is not broken also.
Harm may be " caused " without personal contact ; so, if A
break h_is^_leg by jumping out of a window to avoid jB's
threatened attack, B is indictable for "rausiug" this injury*. I
Bodily harm becomes "grievous" whenever it seriously '
interferes with health or even with comfort. It is not
necessary that its effects should be dangerous, nor that they
^ bee Stephen, Hist. Cr. Law, in. 112.
' Drajt Criminal Code for Jamaica, p. 106.
•' -24 and '25 Vict. c. 100, s. 18.
♦ I.e. the " three skins" of the older anatomists.
^ Rex V. Beckett, 1 Moody and R. 526. And lieuce no injury can be
a wound unless it do bleed.
6 Reg. V. Parker, C. C. C. Sess. Pap. lix. 393.
K. 10
146 Malicious Wounding [cii.
should be permanent^ The rather vague question as to
whether, in any particular case, the harm done was serious
enough to be classed as grievous, is for the jury to determine'.
The statutory " attempt " to shoot at a person is not
made until some really proximate step is taken; as, for
instance, that of drawing the trigger. Hence merely to
point a loaded pistol at a man (though it does amount to
an " assault " on him) will not suffice for the crime we are
now considering. But to pull the trigger, even though the
discharge fails through a defect in the cartridge, (or barely to
put your finger on the trigger with the intention of pulling
it, even though you be interrupted before you actually pull
it), will suffice to constitute an attempt to shoot, within the
statute^.
To "maim" is to do such a hurt to any part of a man's
body that he is rendered less capable, in fighting, either
of defending himself or of annoying his adversary*.
The wording of the statute does not make it necessary
that the person whom it was intended to harm should be
the one actually harmed.
(6) It is a felony, punishable with penal servitude for
ten years, unlawfully and maliciously to administer any
poison or other noxious thing to anyone so as thereby to
endanger his life or inflict upon him grievous bodily harm^
2, Misdemeanors.
Each of the following statutory misdemeanors is punish-
able with five® years* penal servitude.
(a) Unlawfully and maliciously wounding, or inflicting
any grievous bodily harm upon, any pe^•sou^
1 Merely that " the shoulder was very much bruised" was held insnfficient
by Cleasby, B. (C. C. C. Sess. Pap. Lxxxvni. 440) ; but harm that causes
a woek's confinement to bed may suffice, 1 Crawford and Dix 81.
'^ B. and E. 862; 1 Crawford and Dix 164.
« Reg. V. Duckworth, L. R. [1892] 2 Q. B. 83.
* 1 Hawk. P. C. c. 55, s. 1. ^ 24 and 25 Vict. c. 100, s. 23.
* Not merely three, as sometimes stated. '' 24 and 25 Vict. c. 100, s. 20.
xj Statutory Malice 147
This offence differs from the somewhat similar felony
above referred to as " 1 (a)," in that the felony requires an
actual intention to do the particular kind of grievous bodily
harm, whereas in the misdemeanor it is sufficient that
such harm has been done "maliciously," even though there
was no intention to produce the full degree of harm that^
has actually been inflicted.. Here we again meet with "that
most unsatisfactory of all expressions^" — malice. But the
" malice " required here is something narrower than that
vague general idea of a wicked state of mind which the
word usually denotes at common law^, as in cases of homicide
or in the phrase " mute of malice^," For in statutory wrongs
the word " malice " is presumed to have been employed by
the legislature in a precise sense ; so as to require a wicked-
ness which consisted of, or included, an actual intention to
do an injury, and, moreover, an injury of the same kind as
that which in fact was done. Thus the intention to injure
a man's body is not such malice as will support an indict-
ment for malicious injury to his property ; and similarly vice
versa. Accordingly if a stone aimed at a person misses him, ^
but crashes through a window, the thrower will not neces- | y
sarily be guilty of "maliciously" breaking this window*. V
And, similarly, had the stone been flung at the window, and [
then intercepted on its flight by the head of someone who I
unexpectedly looked out of the window, the thrower would J
not necessarily have committed a "malicious" injury to this
person. In either of these two cases, however, there would
be a sufficient " malice," if the man who threw the stone in
the desire of doing the one kind of harm, knew that it was
likely that the other kind might be done, and felt reckless
as to whether it were done or not, though not desiring it^
^ Prof. E. C. Clark, Analysis of Criminal Liability, p. 82. " One of the
most perplexing legal terms;... continually used in conflicting senses";
(Bigelow on Torts, § 35). 2 cf. 2 Ld. Raymond 1485.
3 Infra, p. 467. ■* Reg. v. Pembliton, L. R. 2 C. C. K. 119 (K. S. C. lo7).
6 Re Borrowes, Ir. L. R. [1900] 2 K. B. 593.
10—2
148 Malice and Intention [ch.
But if the harm done be of the Mnd intended, this is
sufificient ; even though it be produced in some degree, or in
some manner, or upon some subject, that was not intended.
Thus where a soldier aimed a blow at another man with his
belt, but the belt bounded off" and struck a woman who was
standing by, and cut open her face, he was held guilty of
maliciously wounding her\
Much confusion hangs around the three cognate words —
Malice, Intention, Purjiose. Clearly 'purpose' always in-
volves the idea of a desire. So, also, in popular parlance
does 'intention'; for a man is not ordinarily said to 'intend'
any consequences of his act which he does not desire but
regrets to have to run the risk of ^, {e.g. when he shoots at an
enemy, though seeing that a friend is close to the line of fire).
Yet in law it is clear that the word ' intention,' like the word
' malice,' covers all consequences whatever which the do^p-el
an act foresees as likely to result from it ; whether he does
the act with an actual desire of producing them, or only m
recklessness as to whether they ensue or not*. The fact that
he had means of knowing* a consequence to be likely, raises
a prima facie presumption that he did actually foresee it as
being so. There is such a great difficulty in obtaining any
evidence to rebut this presumption, as usually to render it
practically equivalent to a conclusive o^e^
Accordingly, to give legal proof of malice is less difficult
than might theoretically have been expected. If th e act-
wasunlawful, and d one with a bad motiv e, and was at all
lilcely to cause injury of the kind that did in fact result,
there is enough prima facie proof of ' malice ' to warrant
1 Reg. V. Latimer, L. E. 17 Q. B. D. 359 (K. S. C. 144).
- Prof. E. C. Clark's Analysis of Criminal Liability, pp. 73, 78; Markby's
Elements of Law, s. 222. And see above, p. 134.
=* Reg. V. Welch, L. R. 1 Q. B. D. 23. Cf. Mr Justice Wright's Draft
Criminal Code for Jamaica, pp. 3, 98; Austin, Lecture xxi.
* As to " Knowledge," see p. 2.53 i/tfra.
' But it is 7iot conclusive. See Woodley v. Cork, Irish L. It. [1910J
2 K. B. 29.
x] Actual hoclily harm 149
a con\nction. Thus, Avhere A was engaged in shooting
\vdld-fowl, and B fired a gun in the direction of A's boat
with the mere object of frightening A so as to make him
give up his sport, but, owing to the boat's being suddenly
slewed round, the shot actually struck A, it was held
that there was sufficient evidence of malice on the part
of B^ And where A, merely in order to frighten B, pointed
at him a gun which he knew to be loaded, and then, in
consequence of B's own act in seizing the muzzle, the gun
accidentally went off and shot B, it was held by Wills, J.^, that
there was a sufficiently " malicious " wounding ; (and accord-
ingly that the prisoner might be convicted of this minor
offence, though acquitted of the felonious one' of wounding
" with intent to do grievous bodily harm ").
Unlawfully inflicting grievous bodily harm without (strict
statutory) " malice," is not known to the law as a specific
offence; and can at most be dealt with as a mere form of
assault. If it were inflicted by mere negligence, however
gross, it probably is not even an assault^; and thus is no
offence at all, unless death results from it^ ^li^Q^^^^^iWho
makes his patient lose a limb or an eye, is only liable ci villy
and not criminally.
rKe question as to what kind of causation will suffice to
constitute an "inflicting" shall be considered later on*.
(6) Occasioning actual bodily harm by an assault ^
The reason of the framers of the Act of 1861 for
separating this offence from that last described (viz., ' 2 (a)')
is not obvious; especially as they both entail the same
punishment. Indeed, " occasioning actual bodily harm by
an assault " would seem a description wide enough to include
1 Reg. V. Ward, L. E. 1 C. C. R. 356.
2 Cambridge Assizes, Oct. 1899. ^ Supra, p. 145.
* lufra, p. 158. Jleg. v. Latimer, L. II. 17 Q. B. D. 359 (K. S. C. 144).
5 Or unless it were negligence iu managing a " vehicle"'; see the statute
of 1861, infra, p. 158 n. (3).
•* Infra, p. 150. ' 24 and 25 Viet. c. 100, s. 47.
150 Administering poison [ch.
all the acts covered by 2 (a) ; unless " inflict " be taken to
have been used by the legislature as a wider word than
" assault," and as capable of including the production of harm
by some indirect and protracted chain of causation, e.g., by
poisoning or infecting with disease. Arguments of great
force have been used in favour of this wide construction'.
And we may add to them that in Reg. v. Halliday^ the
Court for Crown Cases Rese rved held that grievous bodily
harm h ad been "inflic ted," w lu iv ili.' d( f.nil.int li.nl merely
frighten ed a woman so that s he jurnp^'d f 'in a window and
was hurt; and this frightening, though aii " assault" in the
o^TTechnical meaning of that word was no assault in the
modern sense of a " battery." But in Reg. v. Clarence^ when
the majority of the Court held that the communication of
venereal disease by a husband (even though he knew of it) to
his wife (even though she did not know of it) was no assault,
inasmuch as there was consent to the contact, they decided
that it consequently was not an " inflicting of grievous bodily
harm " ; on the ground that they considered that an " m-
flicting" must be by assault and battery* and requires
a direct and immediate causing of the harm.
(c) Unlawfully and maliciously administering to anyone
any poison or other noxious thing with intent to injure,
aggrieve, or annoy him^.
If the thing administered be a recognised " poison," it
seems probable that the offence would be committed by
giving even a quantity so small as to be incapable of doing
harm*. But if it be not a poison, and be " noxious " only
when taken in large quantities, (as, for example, castor-oil or
1 See per Hawkins, J., in Reg. v. Clarence, L. R. 22 Q. B. D. at p. 49.
» 61 Lnw Times, 699. Cf. 7 Cr. App. K. 197 ; and L. 11. 8 Q. C. D. 51.
» L.R. 22Q. B. D. 23.
* Wills, J., at p. 37 ; Stephen, J., at p. 41 ; Pollock, B., at p. 62.
6 24 and 25 Vict. c. 100, s. 24.
6 See 2}''r Field, J., and Stephen, J., in Reg. v. Cramp, L. ii. 6 Q. B. D.
307 ; a case arising upon similar words in a different statute.
x] Assault and Battery 151
ardent spiiits), the offence will not be committed by giving a
person only a small dose of it\
Upon an indictment for feloniously administering poison
(under 24 and 25 Vict. c. 100, s. 23"), the jury are permitted
to convict, instead, of this misdemeanor of administering it in
a less heinous manner ^
B. Offences in which actual bodily harm is not essential.
An "assault" is an unlawful attempt, or offer, ^v^1•h J
violence, to do a corporal hurt to another*. A " battery " is (//*
an injury done to the person of a man in an angry, revenge-"
ful, rude or insolent manner'. In other words, an assault is
a movement which attempts, or threatens, the unlawful -, • ;,-•.»»'■
application of force to another person ; whilst such an appli- , ■"
cation itself, when actually effected^constitutes a battery.
Thus riding at a person is an assault®, riding against him is a
battery. A mere assault, even without any battery, is not
only a tort but also a misdemeanor. Hence if a battery
ensue, it does not enhance the degree of the crime ; though it
is important as affording clear proof of the h ostile intention
of the movements Avhich constitute the assault. Usually, of
course, both the two offences are committed together; and
t he wi mle transaction is.le^illy described as " an assault an d
battery." This became shortened in popular language to
*' an assault " ; and now the current speech even of lawyers
habitually uses that word as if synonymous with " battery."
Even in a battery, no actual harm need be done or
threatened. T he slightest force will suffice, if it were
exercised in a hostile spirit; thus merel y spitting on a
person may amount to an indictable battery. T he force_
applied (or threatened) need not involve immediate contact
bcL\vri_n the assailant aiul the sufferer. Thus it is sufficient
1 Beg. V. Hennab, 13 Cox 547. ^ Supra, p. 146.
8 24 and 25 Vict. c. 100, s. 25.
* Hawkins, P. C. c. 62, s. 1. An assault committed in a public place
becomes an "Affray."
6 Ibid. s. 2. Ci. Pollock on Torts, Bk. ii. chap. 6.
152 Unloaded weapons [ch.
if harm is done (or threatened) to a person's clothes without
touching his skin^ And, similarly, the hostile force may be
exercised cither directly or even indirec tl}^ as_ by striking a
horse and thereby making it throw its rider'.
TTo deprive another person of his liberty will usually
involve either touching or threatening to touch him ; and thus
the tort of false imprisonment usually involves the crime of
an assaults But s ome bodi ly movement is (^sciitiai to an
assault or battery ; so that where there is only mere motion-
less obstruction'' — as where a cyclist is brought doAvn by
collision with a person who only stands still, however
\vilfully, in front of him — no proceedings can be taken for
assault. (The much graver offence of " maliciously causing
grievous bodily harm," may, however, have been committed.)
y Similarly, mere words, however threatening, can never make
an assault^ Yet they may wnmake an assault ; as in a case
where a man laid his hand menacingly on his sword, but
at the same time said, " If it were not assize time, I'd run
you through the body*."
Alarm is essential to an assault. Hence if a person who
^ strikes at another is so far off that he cannot by possibility
touch him, it is certainly no assault^. And it has even been
said that to constitute an assault there must, in all cases, be
the means of carrying the threat into effect*. Accordingly,
whilst pointing a loaded pistol at a person is undoubtedly an
X assault, it was held, in Reg. v. James", that it was no assault
to present an unloaded one. But in an earlier case, Reg. v.
St George^\ it was held, on the contrary, that if a person
1 Per Parke, B., in Rey. v. Day, 1 Cox 207.
•- Cf. Dodivell V. Burford, 1 Mod. 24.
8 1 Hawk. P. C. c. 60, s. 7 ; 4 Bl. Comra. 218.
* Innes v. Wylie, 1 C. and K. 257.
» 1 Hawk. P. C. c. 62, s. 1. " Tuberville v. Savagr, 1 Mod. 3.
7 Com. DiK. Battenj (C).
8 Per Tindal, C. J., in Stephens v. Myers (1830), 4 C. and P. 349.
» ^1811), 1 C. and K. 530. " (1840), 9 C. and P. 483.
x] Poisoning no as.saitU 153
presents a firearm which he knows to be unloaded, at a man -
w ho d oes not know that it is unloaded, and who is so near
that (were it loaded) its discharge might injure him, an
assault is committed.
This latter view, which makes the offence depend upon
the alarm naturally (however mistakenly) aroused in the
person threatened, is in accord with the Scotch law' ; and it
agrees with the predominance of authority in America,
where this question has much more frequently come before
the courts than in this country ^
It may be regarded as now settled that poisoning, where the ^ ,,
poison (as is usually the case) is taken by the sufferer's own '/
hand, does not constitute an assault'. A contrary view was
at one time taken in this country, and is still favoured in
America\ But^_on principle^ it is essential to^ an assault_tliat
the re should be a personal exertion of force by the assailant.
If therefore the actual taking up of the cup or glass was the
act of the person poisoned, there is no assault ; even though
he took it in consequence of the poisoner's false representa-
tion that it was harmless. This consideration seems to
settle the controversy; irrespectively of the further argu-
ments that poison, unlike an ordinary "battery," takes
effect internally instead of externally, and acts chemically
instead of mechanically. Hence, as we have seen*, the
statute 24 and 25 Vict. c. 100 distinguishes between the
offence of causing bodily harm by an assault^ and that of
administering poison with intent to injure or annoy \
1 1 Broun 391; and with Queensland law (Q, L. R. 1911, p. 206).
" See, for the liability, Commonwealth v. White, 100 Mass. 407; and,
against it, State v. McKay, 44 Texas 43. In 1891 the Supreme Court of
New South Wales pronounced for the liability (12 N. S. W. 113) ; though in
1870 it had decided against it.
3 Reg. V. Dilmorth, 2 Moo. and R. 531; Reg. v. B^'tlkden, 1 Cox 282;
Beg. V. Hanson, 2 C. and K. 912 ; and see ]>er Hawkins, J , in Eeg. v.
Clarence, L. R. 22 Q. B. D., at p. 42.
* Covmonwealth v. Slratton, 114 Mass. 303. ^ Supra, pp. 149-150.
•> sec. 47. ' sec. 24.
154 Self-defence [ch.
The exercise of force ao-ainst tlie body of anot he r man is not ,
always unlawful*. T he principal occasions on w hich (provided
that the amount used is not more than is proportionate to
the immediate need) it is legally justifiable are the followi ng:
(1) In the furtherance of public authority; as in pre-
venting a breach of the peace, or arresting a felon, or exe-
cuting any process issued by a court of law. This has been
already sufficiently considered in Homicide-.
(2) In correctiiTg either your own childr en, or the
scholars or apprentices who have been placed under your
authority. This right has also already been considered*.
(3) In de fending either (a) your__jperspn, or (6) your
existingJaJYfuf^ossession of any property (whether it consist
of lands or merely of goods).
" Nature prompts a man who is struck to resist ; and he
is justified in using such a degree of force as will prevent a
-4— repetition*." Nor is it n(M;r>>;;i-v that lu.' sliould wait to be
C a,ctually struck, before strikin- in SL'lf-UL'tL'iicc. If one party ^
>^-f raise u p a threatening l iaiid, tlien the other may strike^_
*- Nor is the right of defence limili d to the jiariicular person
assailed ; it includes all who are under any obligation, even
though merely social and not legal, to protect him. The old
authorities exemplify this by the cases of a husband defend-
ing his wife, a child his parent, a_ mas tfi^ his servant^ or a
servant his master"; (and perhaps the courts would now
take a still more general view of this duty of t he strong to
X p rotect the we akQ. A familiar modern instance is the force
exercised by the stewards of a public meeting, to remove
those who persistently disturb it.
1 Cf. sitpra, pp. 102—111. "^ Supra, p. 103.
3 Supra, p. 109. It was upheld in 1910 for an apprentice as old as seven-
teen ; Tivies, Nov. 30, 1910.
* Per Parke, B., 2 Lewin 48. " Hid.
8 1 Hawk. c. 80, ss. 23, 24; Re;i. v. Eose, 15 Cox 540 (K. S. C. 140).
7 Bishop, Criminal Law of U.S.A., 8th ed. i. § 877. 3. Cf. 11 Mod. 242.
x] Self-defence 155
Bnt the justification extends only to blows struck in
sheer self-defence and n^t in re venge. Accordingly i f, wh en
all the danger is over and no more blows are really needed
for defence, the defender nevertheless strikes one, he commits
an assault and battery'. The numerous decisions that have
been given as to the kind of weapons that may lawfully be
used, to repel an assailant, are merely applications of this
simple principle. Thus, as Ave have already seen*, where a
person is attacked with such extreme violence that his very
life IS in danger he is justified in even killing his assailant. (^^ ^,
But a mere ordinary assault jnust not be thus met by the jise
of firearms or other deadl}- weapons^ And, sim ilarly, a knife
is not usually a proper instrument of self-defence, but must
only be employed where serious bodily danger is apprehended,
or where a rolDbery (z. e., a theft by violence) is to be pre-
vented^. Hence it is unjustifiable for a man to use it where
the attack upon him is made with a mere strap. I t shoul d, ')
however, bejQoted that where more force than was necessary y )(^
has been used for self-defence, the case is not to be treated \
as if all the force employed had been illegal. The fact that J
part of it was justifiably exerted may, for instance, have the
effect of reducin g a char ge of " wounding with intent to do
grievous bodily harm" to one of mere unlawful wounding".
The right of self-defence extends, as we have said, to the
defence not only of your person but also of your property. .
Thus force may lawfully be used in expelling anyone who is "C/iV^
trespassing in your house, or on your land, if no milder m ode
of getting rid of him would avail. Hence if his entry had
itself been effected forcibly, as by a burglary or even by
breaking open a gate, you may at once use force to expel
1 Reg. V. Driscoll, C. aud M. 214 (K. S. C. 151).
2 Supra, p. 103.
" Osborn v. Veitch, 1 F. and F. 317 (K. S. C. 150).
" Rea. V. Hewlett, 1 F. and F. 91 (K. S. C. 150).
6 Reg. V. Hunkey, 3 C. aud K. 142.
156 Assaults by consent [ch.
him'. But in the cise of an or dinary iiea ceftil trespasser,. it
/ will not be until 3'ou have first requested him to depart, and
I he has failed to comply with the requost, that you will be
] justified in ejecting him by the strong hand. Disturbance
of an easement is a wrong in the nature of a trespass, and
therefore force may be used to prevent it ^
A similar right exists in the case of movable property.
Force may accordingly be used to resist anyone who attempts
/ to take away your goods from you*. And there is modem
authority for sajdng that force may even be used to reca'p ture
yourgoods, after they have bee n actually ta ken_Qut of you r
possession. But this alleged right to use force, not merely
to protect an existing possession but to create one, is not
beyond doubt*. In the case of real property it certainly
does not exist. A landlord may commit an indictable offence
by " forcibly entering " a house, although it is his own, if
any full (though unlawful) possessor is excluding him*. For
real property, unlike personal, is in no danger of being
mean\vliile destroyed, or lost, if the owner waits for the
intervention of the law to recover it.
(4) There is, again, a 1( gal justification for the trifling
degree of force involved in those petty instances of contact
which inevitably arise in the ordinary social intercourse of
everyday life®; such as tapping a friend's shoulder to attract
his attention, or jostling past one's neighbour in a crowd.
But, to be thus justifiable, t hese acts mu st b e done bond fide ,
a,nd with no uniisual vehemence.
(5) There is, further, a justification for acts that are
done by consent of the person assaulted ; unless the force be
1 Green v. Goddard, 2 Salk. 6il (K. S. C, 147).
2 Bird V. Jones, L. R. 7 Q. B. D. 74-2.
» 2 Rol. Abr. .548; Green v. Goddard, 2 Salk. 641 (K. S. C. 147).
* See Pollock on Torts, 6th cd. p. ;372.
Newton v. Harland, 1 M. and G. 744 ; cf. L. 11. 17 Ch. D. at p. 188.
* Hopper V. Reeve, 7 Taunt. 098.
x] Assaults by consent 157
a breach of the peace, or be causelessly dangerous. Volenti
non fit injuria. Hence seduction is no assault, either in the
law of crime or even in that of tort\
But the consent mus t be given freely {i.e., without^ force,
f ear or f raud), and byasane^ andTsober person, so sTtuatecTas
to be able to form a reasonable opinion upon the matter to
which consent is given ^ For " f raud vitiates con sent " ; and
accordingly an impostor who, by pretending to be a surgeon,
induces an invalid to submit to be operated upon by him,
will be guilty of assault, notwithstanding the consent which
was nominally given. As regards the mental capacity to
consent, it may be mentioned that, in the case of indecent
assaults, the legislature has established a definite rule as
to age, by enacting that consent given by a child of either ,
sex under thirteen years of age shall not constitute a
defence^ And, again, even the most complete consent, by
the most competent person, will not suffice to legalise an
assault which there are public grounds for prohibiting.
Thus consent is no defence, criminallyS for any assault that
amounts'to a breach of the peace. The public interests
similaVly preclude the consent of TKe^person injured from
affording any defence where the violence exercised (and j
consented to) involved some extreme and causeless injury ^
to life, limb, or health. If, therefore, one of the parties to a
duel is injured, his consent is no excuse. Yet it is uncertain
at what degree of danger the law thus takes away a man's
right to consent to be placed in situations of peril, (as for
instance, by allowing himself to be wheeled in a barrow
alono- a tight-rope^). But in the case of a surgical operation-
1 Pollock on Torts, 6th ed. p. 226.
2 For a Submission is not alwaj-s a Permission.
3 43 and 44 Vict. c. 45, s. 2.
4 lleg. V. Coney, L. E. 8 Q. B. D. 534. Vide supra, p. 110. For the
(disputed) effect of such consent upon the civil liabiUty, see Pollock on
Torts, ch. IV. s. 11 ; Kenny's Cases on Tort, p. 157.
5 But against juvenile acrobats, see the Children's Dangerous Perform-
ances Acts, 1879 and 1897.
158 Punishment of Assaults [cu.
carried out by a competent surgeon, however great be the
risk, there will nsually be adequate cause for running it;
and so the patient's consent will be full justification for
what would otherwise be an aggravated assault. And even
injuries which are occasioned in the course of a mere game,
if it be a lawful one and be played with due care, are
not regarded as causeless ^
These rules as to the amount of violence which con-
stitutes an assault, and as to the circumstances which will
excuse that violence, hold equally good in the law of tort
and in the law of crime. But those two branches of law differ
in their rules as to the state of mind which will render a man
liable for the exercise of such violence as has been shewn to
be a forbidden act. In actions of tort, either intention or
even mere negligence'^ — if the degree of negligence be gross
— will suffice to render the wrong-doer liable to pay damages.
But an assault will not render a man liable to criminal
punishment unless it were committed with actual intention I
The following assaults are statutory misdemeanors,
punishable with the statutory penalty of imprisonment with
hard labour for two years, or a fine, viz.: —
1. Assaults with intent to commit a felony*.
2. Assaults with intent to prevent the lawful appre-
hension either of the assailant himself or of any other
person*.
' Supra, p. 110.
2 Weaver v. Ward, Hobart 134 ; yet see Bigelow on Torts, 7th ed. § 374.
* Ackroyd v. Barett, 11 T. L. E. 115. But negligence in driving may,
without any actual intention, suflice for the statutory misdemeanor of
"causing bodily harm by wilful misconduct or wilful neglect when in charge
of a carriage or vehicle " (e.fj. even of a bicycle) ; 24 and '25 Vict. c. 100, s. 35.
In India, in the United Stales (Wharton's Criminal Law, Bk. iv. ch. 8), and
in Scotland (Macdonald's Criminal Law, p. 154), negligence is held to be not
Buflicient to make assaults criminal.
* 24 and 25 Vict. c. 100, s. 38. « Ibid.
x] Punishment of Assaults 159
3. Assaults upon a constable in the execution of his
duty, or upon any person acting in aid of such constable'.
Even a mere common assault is also an indictable mis-
demeanor, punishable on indictment {i.e., on trial before a
jury) by imprisonment for one year with hard labour, or
by a fine*.
The person assaulted has usually also the option of
prosecuting the offender summarily before a court of petty
sessions. For though an assault must be dealt Avith by
indictment if it either (i) involves the title to lands ^ or
(ii) is accompanied by an attempt to commit a felony*, yet
in ordinary cases of assault the offender may be summarily
convicted, wthout a jury, before two justices of the peace".
But the maximum penalties that such a court can inflict are
only :—
(a) Nine months' imprisonment with hard labour; for
assaulting a constable in the execution of his duty, after
having been previously convicted of a similar assault within
two years'.
(6) Six months' imprisonment with hard labour, or a
fine of £20 ; for
i. Assaulting a constable in the execution of his
duty^
ii. Assaulting a boy under fourteen, or any female;
provided that the assault is of an aggravated nature*.
(c) Two months' imprisonment with hard labour, or a
fine of £5; for a common assault. The justices in this
instance can summarily convict only when the complaint has
1 2\ and 25 Vict. c. 100, s. 38. « 24 and 25 Vict. c. 100, s. 47.
» 24 and 25 Vict. c. 100, s. 46. ■• Ihid.
« 24 and 25 Vict. c. 100, s 42. e 34 and 35 Vict. c. 112, s. 12.
' Ibid. « 24 aud 25 Vict. c. 100, s. 43. Ct. p. 435 infra.
IGO Separation Orders [ch. x
been made by (or on behalf of) the very person assaulted;
and not merely by the policed For a resort to this summary
procedure takes away the aggrieved party's right of civil
action. In Ireland, however, (as, there, injured persons are
less ready to prosecute), the justices may, by 25 and 26 Vict.
c, 50, s. 9, try cases of assault even when the party assaulted
declines to complain".
By 41 Vict. c. 19, any court wliich convicts a husband
(either summarily or not) of an aggravated assault on his
wife may, if satisfied that her future safety is in peril, make
an order that she shall no longer be bound to cohabit with
him; and may also make an order for her maintenance. The
first-mentioned order will have the effect of a judicial
separation. The word "aggravated," in this enactment, is
not limited to the various statutory aggravations of assaults.
A striking illustration of the increased orderliness of
the people is afforded by the fact that the number of petty
assaults summarily prosecuted in 1908 was less than half
what it had been, thirty-five years previously; though the
population had meanwhile increased by more than fort}-
per cent.
1 To meet the case of children being assaulted.
2 24 and 25 Vict. c. 100, s. 42.
3 In Cambridge, on the other hand, the Proctors and their men enjoy
exemption from all summary jurisdiction of justices, in respect of assaults
committed by them "in the exercise of the authority of the Proctor"; but
the person assaulted may still proceed by indictment or by civil action; Cam-
bridge Award Act 1856 (19 and 20 Vict. c. xvii.), s. 7. This enactment arose
from fines having been imposed upon a Proctor and two of his men, by the
borough justices, on Dec. 6, 1850.
CHAPTER XL
AKSON AND OTHER MALICIOUS INJURIES TO PROPERTY.
Passing from crimes against the Person to crimes against
Property, our discussion of the various offences which violate
rights of ownership ought to begin with those groups which
centre round two ancient crimes of p eculiar heinousness —
AiSQB and Bur gl ary — whose historical importance can be
traced to the peculiar sacredness which early English law
attached to men's habitations \ For a dwelling-house was
regarded as being its occupier's "castle and fortress, as well
for his defence against injury and violence, as for his repose.
Domus sua cuique est tutissimuni refngium^." Hence to set
fire wilfully to the humblest cottage is still a heinous felony;
though to set fire equally \vilfully to some unique picture or
some priceless tapestry is at most a misdemeanor, and at
common law was no crime at all.
This felony of Arson (so called from the Latin ardeo,
I bum) was at one time punished with the terrible retaliation
of death by burning^ Yet to destroy a house in any other
manner than by fire was not regarded by the common law
as a criminal offence at all. The legislature has, however,
now supplied this omission by making it a felony riotously to
demolish a house* and a misdemeanor riotously to damage*
one ; and more generally, apart from any riot, by rendering the
doing of malicious injury to any property — whether a house
or not — a crime. That crime is punishable in some cases as
^ 4 Bl. Comm. 223. - Semaijne's Case [a.d. 1604], 5 Coke 91.
3 Britton, i. 41. * 24 and 25 Yict. c. 97, a. 11. " Jbid. s. 12.
K. 11
162 Definition of Arson [en.
an indictable misdemeanor' and in others as a mere petty
offence*, according to the amount of damage done.
Arson at common law was defined as "the malicious and
wilful burning of the house or outhouse of another ma,n' "
The requirement of malice suggests the remark that arson
seems to have been one of the earliest crimes in which the
mental element was emphasised. " At a very early time, men
must distinguish between fires that are, and fires that are
not, intended*." So far back as the days of Bracton* it was
already settled that "Incendia fortuita, vel per negligentiam
facta, et non mala conscientia, capitali sententia non puni-
untur ; quia civiliter agitur contra tales."
The phrase "burning" was construed narrowly, and was
regarded as requiring that some portion of the building
must be actually consumed by the fire; anything short of
this being held to be a mere attempt at arson. In limiting
the crime to the burning of the house of "another man,"
attention was concentrated on the interference with the
rights, not of the o^vner, but of the immediate occupier.
Hence, if a tenant were actually in lawful possession of a
house, even though his tenancy was to last no longer than for
the single day, he would commit no arson by burning the
house down. And, on the other hand, his landlord (though
the owner of the house) would commit arson if he burned it
whilst it was still in the occupation of the tenant.
But the common law definition no longer holds good. It
has been superseded by the somewhat different language
adopted in various statutes dealing with arson, which are
now consolidated by the Malicious Injuries to Property Act,
1861 «.
Arson under this enactment is now the felony of unlaw-
fully and maliciously setting fire to buildings or to certain
1 24 and 25 Vict. c. 97, s. 51. - Ibid. s. 52. ^ 4 bI. Comm. 220.
* Pollock and Maitland, n. 491. ' fo. 146 b.
« 24 and 25 Vict. c. 97. See Stephen, Diij. (Jr. Law, Arts. 417 — 121.
xi] Burning hy Negligence 1G3
peeHUarly inflammable kinds of other property. The possible
punishments vary. In one extremely rare class of cases
arson is punishable with death, under statutes which are
still unrepealed; viz., when it consists in setting fire to a
King's ship or dockyard \ or to any ship in the port of
London'.
~^ The next most heinous class of cases are those in which
penal servitude for life may be infligtad ; viz., the offences
of setting fire to : — (1) a church^ railway station*, public
building*, stack', coal mine^ or ship*; (2) a dwelling-house\
when any person is therein^; and (3) almost any kind<J
of building if the act be done with intent of injuring, or '
defraudiBg .any person^". But for setting fire to any building
under any other circumstances than those above mentioned",
or for setting fire to crops or plantations ^2, the maximum
penalty is only penal servitude for fourteen years.
It will be seen that the statutory law of arson is far
wider than was the common law doctrine of it. The crime
is no longer confined to houses and outhouses; and more-
over it may be committed even by a person who is in
possession of the thing burned.
Two of the statutory phrases call for comment — the
"maliciously" and the "setting fire to."
{a) "Maliciously." Burning a house by any mere neg-
ligence, however gross it be, is, as we have seen", no crime;
(an omission in our law which may well be considered as
deserving the attention of the legislature). Even the fact
that this gross negligence occurred in the course of the
commission of an unlawfiil act, or even of a felonious one,
1 12 Geo. III. c. 24, s. 1 (Dockyards Protection Act) ; 7 and 8 Geo. IV.
c. 28, SB. 6, 7.
2 39 Geo. III. 0. 69, s. 104. » 24 and 25 Vict. c. 97, s. 1.
* Ibid. 6. 4. » 8. 5. 6 s. 16. ^ g. 26. a 8. 42.
9 s. 2. '» p. 3. " s. 6. " 8. 16.
13 Supra, p. 102 ; a Cuke Inst. 67.
11—2
1(34 Burning hy Malice [ch.
will not suffice to render the consequent burnint^-down
indictable as an areon. For in any statutory definition of a
crime, "malice" must, as we have ah-eady seen\ be taken—
not in its vague common law sense as a "wickedness" in
general, but — as requiring an actual intention to do the
particular kind of harm that in fact was done. Con-
sequently, if a criminal, when engaged in committing some
burglary or other felony, negligently sets fire to a house, he
usually will not be guilty of arson^ He would, however,
be 80 in those rarer cases where the original crime he was
engaged in was itself an act of burning, such as he would
know to be likely to result in producing an arson. For a man
is responsible for all the foreseen consequences of his acts.
Thus under the old common law, if a man by wilfully burning
his own house, (which would not be arson), accidentally
burnt the closely adjacent house of a neighbour, he might
be guilty of arson; since in such a case the law would
raise a prima facie presumption of malice from the manifest
obviousness of the danger'. But it must not be supposed that
everyone who has maliciously set fire to some article which it
is not arson to burn, will necessarily become guilty of arson
if the fire should happen to spread to an arsonable building.
For if a man mischievously tries to burn some chattels
inside a house, and, quite accidentally and unintentionally,
sets fire to the house thereby, this is uot an arson of the
house\ And even if his setting fire to the chattels inside
the building was intrinsically likely to result in setting fire
1 Supra, p. 147; Reg. v. Pemhliton, L. 11. 2 C. C.R. 119 (K. S. C. 157).
2 Reg. V. Faulkner, 11 Ir. Kep. C. L. 8 (K. S. C. 152).
» Rex V. Probert, 2 East P. C. 1030.
* Not of the house; and not even of the chattels burned, for, though
B. 7 does make it a felony to set fire to " any matter or thing " in (or against)
a building, it does so only where the incendiary knows and disregards the
danger to the building. Reg. V. Child, L. R. 1 C. C. 11. 307; Reg. v. Nattrass,
15 00x73 (K. S.G. 150).
xi] Definition of Burning 165
to the building itself, he still will not necessarily be guilty of
arson of it. For it is essential to arson that the incendiaij
either should have intended the building to take fire, or,
at^ least, should have recognised the probability of its
taking fire and have been reckless as to whether or not
it did so*.
(6) The statute speaks of " setting fire to " houses,
where the common law required a " burning." But this
appears to be a distinction without a difference ; since " set
fire to " is regarded as meaning not merely " place fire
against," but actually " set on fire." It will be sufficient if
any part of the woodwork of the building Has been charred,
by being raised to a red heat even without any blaze'', for
some kinds of wood will burn away completely without ever
blazing at all\ But it has been held not to be sufficient
that the action of the fire has scorched some of the wood to
blackness, if no part of it has been actually " consumed*."
Yet it does not seem easy to draw any true distinction
between these two cases ; inasmuch as even a mere blacken-
ing of wood shews that the chemical constitution of its cell-
walls has, as in the case of charcoal, undergone a change.
There must consequently have been a "decomposition" (which
is the test suggested by Sir James Stephen"), with a con-
sequent actual loss in weight ; and therefore, in fact, a
" consumption " of part of the wood, though this appears to
have been denied in Reg. v. Russell.
1 Eeg. V. Harris, 15 Cox 75 (K. S. C. 154). Cf. C. C. C. Sess. Pap.
cxxvii. 15. Similarly where a prisoner, indicted (under 24 and 25 Vict.
c. 100, s. 32) for maliciously obstructing a railway line with intent to
endanger the safety of persons travelling thereon, was found by the jury to
be " guilty of the act, but with an intent, not of causing injury, but only of
gaining favour with his employers by professing to discover the obstruction,"
this was held by Grantham, J., to amount to a verdict of Not guilty. (The
Times, 29 July, 1901.)
2 Reg. V. Parker, 9 C, and P. 45. » Beg. v. liussell, C. and M. 541-
■* Keg. V. Russell. • Dig. Cr. Law, Art. 419 n.
166 Malicious Damage [ch.
Arson was the only t'orui of injury to property that was
recognisecTby the common hiw as aTcmrro: All other kinds
of mischievous damage to it were merely trespasses, to which
onlv a civil remedy was attached. But by statutory legisla-
tion, numerous provisions have been made for the criminal
punishment of various forms of malicious injury to property.
Under the Malicious Damage Act, 1861 (24 and 25 Vict.j
c. 97), malicious injuries to various specified classes of pro-|
perty are rendered criminal offences of various degrees of guilt J
ranging from that of felonies punishable with penal servitude
for life {e.g., for destroying machinery used in textile manuj
factures, or textile goods exposed in process of manufacture *))[
down to offences punishable on sunniiary conviction.
Malicious injuries to all other real or personal property,
not included in these classes, are dealt with as follows : —
(1) Maliciously causing damage is always an indictable
misdemeanor; and (a) when committed by night {i.e.,
between 9 p.m. and 6 a.m.) is punishable with penal servi-
tude for five years-, or imprisonment for two years, with
or without hard labour, or a fine=* ; or (6) when committed
bv day, is punishable Avith such imprisonment, or a fine.
But no person is to be sent for trial by indictment unless the
committing justice considers the damage to exceed £5'*.
(2) Maliciously, or even merely wilfully"*, causing damage
to any amount not exceeding £20 may be dealt with as a petty
offence, punishable on summary conviction (a) if the damage
exceeds £5, by imprisonment for three months or by a fine
not exceeding £20 ; or (6) if it be only £5 or less, by imprison-
ment for two months or by a fine not exceeding £5 ; together
with, in either case, compensation to the party aggrieved".
1 24 and 2.5 Vict. c. 97, s. 14. '^ Ibid. s. .51.
=* Ibid. P. 7H. * 4 and 5 Geo. V. c. .58, s. 14 (2).
* Ihld. s. 5'2. '• Wilfulness " is mere knowledi^e that the Thing is damaged,
even though there be no " malice" against its Owner ; e.g. a dairyman waters
his employer's milk, but only in order to have more to sell. Roper v. Knott,
L. 11. [1898] 1 Q. B. 868.
" 4 and 5 Geo. V. c. .58, s. 14 (1). In either case the imprisonment may
be either with ur without hard labour; s. 10 (1).
xi] Malicious Damage 167
These pro visions do _not_ extend to mischi ef done either
(a) under a reasonable supposition of right'.; or (6) without
producingjiny actaal harm — merely nominal damage (as in
\v;inang"on a gravel path), that would suffice for an action of
Tort, thus not being enough. But if the damage, though
slight, is quite appreciable, the statute applies. In Hamilton
V. Bone^ a conviction was sustained for cutting blossom from
a chestnut tree, though the blossom was only worth eleven-
pence. Whereas a conviction was held impossible where
persons, in playing football, repeatedly trespassed into an
adjoining pasture to recover the fugitive ball, but (it being
winter) did no appreciable harm to the grass thereby ^ So
the familiar announcement " Trespassers will be prosecuted "
is often a prophecy utterly incapable of fulfilment''. But
where the land to which it refers is bearing such a crop
(e.g., mowing grass) as is capable of receiving appreciable
damage from the trespass, the presence of a prohibitory
notice may be important as shewing the " wilfulness " — and
therefore the criminality — of a trespass committed in defiance
of it''.
Moreover it must be remembered that to damage pro-
perty is one thing, and to carry it off is another. Hence in
Gardner v. Manshridge^, a conviction under this statute for
plucking wild mushrooms (though to a value of as much
as two shillings) was quashed ; and partly upon this very
ground, viz., that the Act does not regard the loss to the
owner, but the damage to the realty. And here the realty
itself was'no \vorse, for sectTons'ie — 24 shew that the statute
treats the fruits of realty not as being a part of the realty,
but as distinct from it. (In our case of plucking blossom
from a tree, part, and a cultivated part, of the freehold
stood visibly mutilated.) A further ground was that, as s. 24
1 Beg. V. Mitssett, 36 J. P. 280. Cf. L. R. [1903] 2 K. B. 714.
2 16 Cox 437. ^ Eley v. Lytle, 50 J. P. 308.
^ Cf. Pollock on Torts, ch. ix. sec. 10; Maitland's Justice and PoUce,
p. 13. 5 See Gayford v. Choider, L. R. [1898] 1 Q. B. 316.
fi L. R. 19 Q. B. D. -217.
1G8 Definition of Malice [cii.
inflicts only one month's imprisonment for taking cultivated
plants, the mere general words of s. 52, which inflicts two
months' imprisonment, must not be allowed to include un-
cultivated plants. Hence to take, however wilfully and
maliciously, such things as fern-roots, primrose-roots, water-
cresses, mushrooms, sloes, hips, nuts, blackberries, when they
are growing wild, usually constitutes no offence under this
Act. Yet where, as in the case of nuts and sloes, a shrub or
underwood is concerned, the plunderer will commit an offence
under s. 53 if his depredations are so effected as to involve
injury to the shrub itself. In all other cases his act is merely
a civil wrong ; for, even when looked at as a theft, it mil fall
neither within the common law' (which punishes no thefts of
realty), nor within the Larceny Act of 18G1, which does net,
even under ss. 36 and 37, protect uncultivated plants.
Hence the prudence of those farmers who, in fields where
mushrooms are plentiful, place some spawn occasionally here
and there under the turf, and put up a notice that " Mush-
rooms are cultivated in this field."
We have already more than once said" that in statutory
wrongs of malice, there must be an intention to do the par-
ticular kind of harm that actually was done. It is scarcely
necessary to point out here that, as all the offences with which
we are now dealing are purely statutory, this principle
applies to them with full force. It is, at the same time,
provided by s. 58 of the Act, that the malice need not be
against the owner of the property. And indeed, it need not be
against any human being at all. It is true that on the con-
struction of a similar statute, 9 Geo. I. c. 22, which first
made it a crime " maliciously to kill or wound cattle," the
judges of the eighteenth century repeatedly held it to be
necessary that the wound should have been inflicted from a
feeling of malice against the owner of the animal ; so that
spite merely against the animal itself would not sufi&ce, even
> Infra, p. 109. ' -Sup'^. PP- l^^' ^^^-
xi] Defi}iUio7i of Malice 169
where the injury to it would necessarily violate the rights of
its owner*. But in a recent case a man, who had in a fit of /
drunken spite cruelly kicked and stabbed a horse which was jfrriQ.
his own, was indicted (under 24 and 25 Vict. c. 97, s. 40) for f
having feloniously and maliciously wounded it^ It was Uq^ \
urged that he was only liable to be convicted of a petty
offence under the Act for the prevention of cruelty to
animals'. But it was held by Lord Russell, C.J. (after
consultation with Grantham, J.), that he might be convicted
of the felony. This extension of the idea of malice to cases
of mere cruelty, in which a sentient creature is hurt but the
rights of no human being are infringed, affords a striking
instance of the advance which has taken place during the
past century in the current ethical conception of man's
duties towards the lower animals.
1 2 East's Pleas of the Crown, 1072—1074.
2 Rtg,_v^__Parry (Chester Assizes), The Times, July 27, 1900. Cf.
Eeg. V. Welch, L. R. 1 Q. B. D. 23.
» 12 and 13 Vict. c. 92, s. 2.
CHAPTER XII.
BURGLARY AND HOUSEBREAKING.
In consequence of the peculiar sanctity which, as we
have seen ^, the common law attaches to even the humblest
dwelling-house, capital punishment was inflicted upon those
guilty of the nocturnal violation of any habitation, even
when little or no injury had been done thereby to the fabric ,
The crime of Burglary* is committed when a dwelUng-hause
or a church^ (or, as the old books used to add, a walled town),
is broken and entered at night with the intention of com-
mitting some felony therein. Let us consider successively
the five points in this definition ; the place, the breaking,
the entry, the time and the intention.
(1) The Place. That the walls of a town should have
been protected by as stringent penalties as those which safe-
guarded the to\vnsmen's o^vn homes, will not be surprising
to any one who is familiar with the Roman treatment of
city-walls as res sanctae *, or who has learned from a visit to
Berwick, or York, or Chester, the importance of the defence,
against private as well as public violence, which a mediaeval
town derived from its circumvallation". And it was natural
enough that a reverence for religious edifices should lead
mediaeval criminal lawyers to extend also to churches the
' Supra, p. 161.
» See Stephen, Dig. Cr. Law, Arts. 341—346.
' Reg. V. Baker, 3 Cox 581 (a.d. 1849). * Just. Inst. ii. 1. 10.
* The original importance of this form of tlie crime is illustrated by the
very derivation of the word "burglary," which Prof. Skeat traces to the old
Trench botirg (towuj, and lere (robber).
CH. xtt] Biirglanj — the House 171
full protection of the penalties which guarded a dwelling-
house — an extension for which Lord Coke offers the verbal
justification that "a church is the dwelling-house of God i."
Much technicality has arisen in determining what build-
ings are to be regarded as " houses," and when a house is to
be regarded as being "dwelt" in. Clearly a house must
be something more than a mere tent or booth ^ it must
be a permanent structure. But it is not necessary that it
should consist of the whole of such a structure. Thus one
building may contain several dwelling-houses; each single
set of chambers, or even each single room, in it may be
a separate dwelling-house'. The test of separateness is
merely whether or not there is internal communication be-
tween this part of the building and the rest of it^ If
any one occupier's part has no internal communication
with other parts, it becomes a separate house. Conversely,
a house is regarded as including its accessory buildings that
stand outside its own walls, if only they (a) stand in the
same curtilage * with the house, and {h) are occupied along
with it, and (c) communicate with it either directly or at
least by a covered and enclosed passage «. So to "break" an
area gate, for the purpose of gaining admittance to the
house through an open door in the area, is not a breaking of
the house itself ^
But a building, although it be a "house," is not to be
regarded as being " dwelt " in unless some person habitually
sleeps there ^ and sleeps in it as his home. He must thus be
a member of the household that occupies it» — whether as
1 3 Coke Inst. 64. 2 Or caravan.
8 As in colleges ; 3 Coke Inst. 65. * Rex v. Egginton, 2 B. and P. 508.
* The "curtilage" is the ground immediately round the house, such as
passes upon a grant of the messuage without being expresslj- mentioned.
« 24 and 25 Vict. c. 96, s. 53.
' Rex V. Davis, R. and R. 322 (K. S. C. 160).
8 Rex V. Martin, R. and R. 108 (K. S. C. 161).
» Rex V. Harris, Leach 701 (K. S. C. 103).
172 Bnrglary — the Brealdng [ch.
himself the possessor* of the house or only as one of that
possessor's family or servants — and not a mere temporary
licensee, whose home the place is not. But though he
must sleep there habitually, he need not do so invariably,
i.e., his residence may at intervals be interrupted. If a
householder goes away from home, but with an animus
revertendi, his house is still considered to be a dwellincr,
although not a single person remains in it-.
(2) The Breaking. This may be either actual or
constructive. It is considered as "actual" whenever the
intruder dispUtces any part of the building or of its closed
fastenings. It is therefore not necessary that there should
be an actual fracture of anything. Drawing a bolt, or turn-
ing a key, or even lifting a latch will suffice. And, simi-
larly, if a window is closed, even though its sash be kept in
position by nothing but the pulley-weight, merely to move
the sash will amount to a " breaking ^" So, too, will the
raising of a cellar flap even though it be held down by
nothing more than its intrinsic weight*; or the turning of a
swing window'. Yet if a window or door be already partly
open, it will not be a "breaking" to open it still further* and
gain admittance thereby. For when a householder leaves
a window or a door partly open, he gives, as it were, a visible
invitation to enter ; but the fact of his having left it merely
unbolted is not thus conspicuous to the passers-by.
But besides these so-called "actual" breakings, in which
the intruder himself displaces the fastenings of the house,
the definition of burglary is interpreted as extending even
to cases in which the breaking is a purely " constructive"
one. Such cases may arise (a) where the displacement has
^ Even a mere tenancy-at-will suffices ; 1 Cox 261.
2 Rex V. Nutbrowii, Foster 76 (K. S. C. 1G4).
» Rex V. Haines, R. and 11. 451 (K. S. C. 107).
* Rex V. Russell, 1 Moody 377. ' Rex v. Hall, R. and R. 355.
6 Rex V. Smith, 1 Moody 176 (K. S. C. 168).
xTi] Constructive Breakings 173
been effected by some authorised person (some innocent
member of the household), or even (6) where there has been
no displacement at all.
In (a) the burglar, by force or fraud, gets some inmate
of the house to open it ; but, though it is thus opened to him
by consent, that consent is deprived of all its ordinary legal
effect by the way in which it was obtained. Thus if an
intending burglar gains admittance to the house by threats
of violence, which put the inmates into such fear that they
open the door to him, there is a constructive breaking^ Or,
again, if, as is more common in modem times, he rings the
bell like an ordinary visitor, and then, when the door is
accordingly opened to him, he comes in on pretence of want-
ing to speak to some member of the household, this is held to
be as true a breaking as if he had himself opened the door.
"For the law will not endure to have its justice defeated by
such evasions ^" But if a pretence thus attempted should fail
to deceive, (so that, though the door be opened to the evil-doer,
it is opened solely for the purpose of entrapping him), the law
does not regard such an opening as being in any way his act,
and therefore does not hold it to be, even "constructively,"
a breaking^.
We have said that (6) a constructive breaking may also
occur even though nothing whatever be displaced. This
occurs where the burglar comes into the house by some
aperture which, by actual necessity, is permanently left open.
There is thus a sufficient "breaking" if the thief comes down
into the house by the chimney *; though there would be no
1 Rex V. Swallow, Euss. Cr. 1070. ^ j Hawkins P. C. 287.
" Reg. V. Johnson, C. and M. 218 (K. S. C. 171). Contrast with tbis case
Rex V. Chandler, 8 Cr. App. E. 82.
* Rex V. Brice, E. and E. 450. Cf. the case tried at Cambridge by-
Sir Matthew Hale, 1 Hale P. C. 552; and an American case {The State
V. Donohoe, 36 Alabama 271). In the latter, the chimney proved to be of
such inadequate dimensions that the burglar stuck fast in it, and it had to
be pulled down to extricate him.
174 Burglary — the Entry [ch.
breaking if he came in througli a window which the builders
had left unglazed.
It should be added that " breaking," whether actual or
constructive, need not be committed upon the external parts
of the house ; it will be sufficient for instance, if an inner
door be "broken." And therefore if a robber gain admit-
tance to a house by means of an open window or door, but
then, when inside, proceed to unlock a parlour-door, he
from that moment becomes guilty of burglary ^ The same
principle holds good, of course, in the case of a servant or
guest who, whilst resident in the house, opens the door of
any of the rooms for a felonious purpose. But whether this
is to be extended to the opening of the door of a mere
cupboard in the wall is very doubtful ^ There is certainly
no burglarious "breaking" in opening the door of a mere
piece of movable furniture, like a sideboard or bureau.
At common law, to break out of a house did not amount
to a burglarious breaking'. But by statute^ it is now provided
that if a person who has committed a felony in a dwelling-
house — or even has entered a dwelling-house with the inten-
tion of committing a felony — shall proceed to break out
of this dwelling-house by night, he is to be held guilty
of a burglary. Thus while both a breaking and an entering
are necessary, either of them may now precede the other.
(3) The Entering. The entry may be sufficiently made
by the insertion of any part of the intruder's own body, how-
ever small that part be. Thus a finger, or even a part of
a finger', will suffice. And there may even be a sufficient
entrj' — without any part whatever of the man himself having
come into the house — by his merely inserting some instru-
1 1 Hale P. C. r,rv.).
- 1 Hale P. C. 527 ; Foster 108.
3 1 Hale P. C. 554.
« 24 and 25 Vict. c. 96, s. 51, re-enacting 7 and 8 Geo. IV. c. 2'J, s. 11.
« Rex V. Davis, E. and R. 499 (K. S. 0. 172).
xii] Burglary — the Time 175
ment which he is holding. But in this case, a subtle dis-
tinction is drawn. The insertion of an instrument, unlike
that of a limb, is not regarded by law as constituting an
entry, unless it were thus inserted for the purpose (nob
merely of entering or of breaking but) of accomplishing
that ulterior felony for the sake of which the house is being
broken into. Thus if a man pushes a bar through a window
for the simple purpose of making a hole in the shutter, there
is only a breaking, but no entry'. Yet if he had pushed
the bar through the window for the purpose of drawing
towards him a spoon which he was going to steal, there
would have been both a breaking and also an entry^. So,
again, it would be no entry to push a pistol through a
window, merely in order to make an aperture to get in at.
But if after having broken a window, he were to thrust
a pistol through the hole, in order to shoot one of the
persons in the room, this would be a sufficient entry*.
Perhaps the best justification that can be given, for this
very technical distinction as to entry by instruments, is that
if the mere insertion of an instrument were always to be
sufficient to constitute an " entry," most of the common acts
of breaking would of themselves include an entry, whereas
the definition evidently supposes the two things to be
quite distinct.
(4) The Time. In the earliest law, burglary might be
committed in the day-time as well as at night*. But after-
wards it became essential that it should take place at night.
By "night" was then understood the period between sunset
and sunrise. Later, however, it was held not to be night
if there was even sufficient sun-light to tell a man's face.
This test again has now been discarded, and by 24 and 25
1 Cf. Rex V. Rush, I Moody 183 (K. S. C. 174).
2 Rex V. Hughes, Leach 406 (K. S. C. 173) ; 1 Anderson 114 (K. S. C. 173).
» 1 Anderson 114 (K. S. C. 173).
* Pollock and Maitland, ii. 491.
176 Barglarji tlie Intent [ch.
A''ict. c. 96, s. 1 (following an Act of 1837), nij^ht ia dpfined
aa^ the period between 9 p.m. and 6 a.m. As to the pi'ecise
instant when that period begins and ends, it should be noted
that here, (as always when a reference to time occurs in an
Act of Parliament or other legal instrument, Avithout the
expression of a contrary mode of reckoning), it is to be under-
stood to be Greentuich mean time*.
To constitute a burglary, then, the breaking must always
take place during this statutory night-time. And if, as is
usually the case, the breaking precedes the entering, both
must take place at night, though not necessarily on the same
night *. But if the entry precedes the breaking, i.e., if the
latter is not a breaking-in but a breaking- c/i<^, the entry need
not be at nights
(5) The Intent There must be an intention to commit
some felony*, {e.g., to kilP, or to commit a rape, most
commonly it is an intention to steal); though it is not
necessary that the felony should actually be accomplished.
Moreover this intention must exist at the time of the
breaking and the entering; and not arise merely after lie is
in the house". Hence if people break open the front door
of a house illegally, but only for some honest purpose {e.g.,
constables acting with an invalid search warrant), and then
are so tempted by the sight of something inside that they
steal it, they will not be guilty of any burglary.
Accordingly if only a tort, or even a misdemeanor, be
intended — as, for instance to get a night's shelter, or to
commit an adultery or an assault — the breaking and entering
for such a purpose will not be burglary, but either a mere
1 4.3 and 44 Vict. c. 9, b. 1. In the case of Ireland, Dublin mean time.
But "sunset" and "sunrise," for lighting-up vehicles, refer to local time.
2 1 Hale P. C. 551 ; Rex v. Smith, R. and 11. 417.
3 24 and 25 Vict. c. 90, h. 51.
4 3 Coke Imt. 63. = Kclyng 07 (K. S. C. 170).
^ But if be break out, after actually committing a felony inside, felonious
intent at the time of entry is not necessary.
XI i] Burglarious Intent 177
civil trespass and no crime at all, or, if a crime, only an
attempt to commit a misdemeanor. And thus, in 1770,
where a man broke into a stable and cut the sinews of a
horse's fore-leg in such a manner that it died, but it was
shewn that his intention had not been to kill the horse
(which would even then have been a felonious act) but only
to maim it, so as to prevent it from running in a race, he
was held not to have committed a burglary \ For in 1770,
although killing a horse had already been made a statutory
felony, any lesser injury to the animal was merely a tort.
At the present time it is a felony, not only to kill but,
even to maim a horse'.
The fact that the burglar actually committed some felony
in the house, is excellent evidence that he broke and entered
it with an intention of committing this felony^ Thus if he
drank some wine which he found in the dining-room, this
theft would be evidence, though certainly only weak evidence,
that he entered the house with intent to steal. In the great
majority of cases the question of intention will resolve itself
simply into " Plunder or Blunder ? " Drunkenness may be
useful as evidence to support the latter alternative. But the
question is not always an easy one to answer, and it often has
to be determined by a somewhat weak chain of inference.
Thus in 1899 a boy broke into a house while the family were
away ; but contented himself with winding up all the clocks
and setting them going. Had he been detected before he
had undertaken this comparatively innocent course of action,
he might have found it difficult to rebut the inference that
he had broken into the house for purposes of theft.
Under 24 and 25 Vict. c. 96, s. 52, the maximum punish-
ment for burglary is penal servitude for life. The same
1 Rex V. Dobbs, 2 East P. C. 513 (K. S. C. 176). The stable was part of
a dwelling-house. ^ 24 and 25 Vict. c. 97, s. 40.
» 1 Hale P. C, 5G0 ; 2 East P. C. 514.
K. 12
178 Housebreaking [ch.
enactment deals also with some statutory nocturnal offences,
which are approximations to burglary, but much less heinous
than it. We may mention the following : —
1. Entering (i.e., without breaking) a dwelling-house, by
night, with intent to commit felony therein, is a felony. It
is punishable with seven years' penal servitude'.
2. Being found by night in a dwelling-house, {i.e., al-
though the entry may have been eflFected only in the day-
time), mth intent to commit felony therein, is a misde-
meanor. It is punishable with five years' penal servitude ^
3. Being found by night in possession of housebreaking
implements, without lawful excuse, is a misdemeanor. It
is punishable with five years' penal servitude^.
We have seen that burglary is essentially a nocturnal
offence. To do in the day-time what it would be a burglary
to do at night, was at common law a mere misdemeanor. It was
known as Housebreaking. But statutory enactment has now
erected it into a felony. It is identical mth burglary so far
as concerns the breaking, the entry, and the intention that it
requires. But in some points it differs from burglary. Thus
(1) it is not limited to any particular hours. An indictment
for burglary must state that the offence was committed at
night; but an indictment for housebreaking does not allege
that the offence was committed by day, — it omits all refer-
ence to time. Again, (2) it extends to a wider range of
buildings ; including, besides dwelling-houses, mere shops,
warehouses, etc. And (3) it admits of different maxima of
punishment accordingly as the ulterior felony intended is
actually committed or not. For, under the Larceny Act,
1861, it is punishable with penal servitude (1) for fourteen
^ 8. 51. ' 8. o8. ' Ibid, See p. 5, supra.
xii] Sacrilege 179
years, if that ulterior felony is actually committed ; but
(2) only for seven years, where nothing more is proved than
that the breaking and entering were effected with the intent
to commit some felony '. A breaking out will suffice in the
tirst of these two forms, but not in the latter. In either case,
instead of penal servitude, imprisonment for not more than
two years may be imposed, with or without hard labour.
We have seen- that the definition of burglary includes
a sacrilegious form, in which the place broken into at night
is a church. Modem enactments have, in addition, created
a statutory form of sacrilege which differs from that just now
mentioned, (1) in being irrespective of the hour of the day,
and (2) in extending to other places of worship besides those
of the established religion. For, under provisions that are
now consolidated in the Larceny Act, 1861, it is a felony,
punishable with penal servitude for life^ to break and enter
and commit a felony in — or to enter and commit a felony in
and then break out of — a church or chapel or meeting-house.
And it is also a felony, but punishable with only seven years'
penal servitude, to break and enter such a place with the
intention of committing a felony, though without accom-
plishing that intention^ In either case, instead of penal
servitude, imprisonment for not more than two years, with or
without hard labour, may be imposed.
It will readily be observed that the definitions of both
burglary and housebreaking are wide enough to cover, along
with acts of heinous guilt, others of a very trivial character.
In 1801, Andrew Branning, a boy of thirteen (to whom three
witnesses gave a good character) was sentenced to death for
burglary, in having, after sunset but before closing-time,
broken a pane of glass in a shop window and put his hand
through the hole, and so stolen a spoon that lay inside^ And
1 24 and 25 Vict. c. 96, ss. 56, 57 (following 7 and 8 Geo. IV. c. 29).
2 Supra, p. 170. ^ j5,v/. g. 50. * Ibid. s. 57.
^ Old Bailey Sessions Papers, Lxxviii. lOi.
12—2
180 Juvenile burglars [ch. xii
in 1833 a boy of nine was sentenced to death for house-
breaking, in having, during the day-time, pushed a stick
through the paper which patched a broken pane in a shop
window, and put his hand through the hole, and so stolen two
pennyworth of paints that lay inside. The latter boy, how-
ever, was not executed; and probably Branning was not.
CHAPTEK XIII.
LARCENY.
§ 1. Htstortoal.
We now pass from the ofifences which consist in destroy-
ing or damaging a man's property, to tliose which consist in
depriving him of the enjoyment of it, though probably leaving
the property itself uninjured. Of such offences the most
ancient in English law is Larceny ^ The rules relating to it
can be traced back through a history of several centuries;
and they have now become so complex as to be scarcely
intelligible without a knowledge of their historical develop-
ment.
Some seventeen hundred years ago, the jurist Paulus
elaborated for Roman law a definition of the offence of Theft
(furtum); which subsequently received legislative approval
from Justinian. Bracton, more than a thousand years after-
wards, embodied this definition, with some verbal alteration,
in his account of English law as it then stood, in Henry III.'s
reign. His words are: " Contrectatio rei alienae fi'audulenta,
cum animo furandi, invito illo domino cujus res ilia fueritl"
("The fraudulent dealing with another man's property against
his will, with an intention of stealing it.") Bracton thus
retains the wide Roman idea of theft, as including any kind
of dealings (contrectatio) by which a dishonest appropriation
could be effected. But it would seem that, in so doing,
1 Stephen, Hist. Gr. Law, in. 121—176 ; Dig. Cr. Law, Ai-ts. 304—334.
^ Bracton, iii. 32. 1. The words of Paulus had been " Contrectatio rei
fraudulosa, lucri faciendi gratia, vel ipsius rei vel etiam usus ejus posses-
siouisve." Digest, xlvii. 2. 1. 3.
182 Hlstorij of Larceny [ch.
he greatly exaggerated the comprehensiveness of the English
idea of theft. Here, as in all Germanic nations, that idea
was too crude to go beyond punishing such dishonest deal-
ings as took the "violent and unmistakeable form of a
change of possession \" This narrow conception was sub-
sequently narrowed still further by various subtleties which
were introduced by judicial decision. Some of these limita-
tions would seem to us unaccountable, if we did not know
that they had been inspired by motives of humanity. The
desire of avoiding capital punishment — and in later times
that of restricting the number of offences in which, by the
old procedure in trials for felony'', the accused person was
denied the support of counsel and witnesses — led our mediae-
val judges to invent ingenious reasons for depriving many acts,
that seemed naturally to fall within the definition of larceny,
of all larcenous character. So extreme was the severity of
the law of larceny that it exacted death as the penalty for
stealing, except when the thing stolen did not exceed the
value of twelve pence. This severity was ultimately tempered
by two active forces. One was what Blackstone® leniently
terms "a kind of pious perjury" on the part of juries; who
assessed the value of stolen articles in a humanely depreci-
atory manner. Thus a silver cup has been known to be
valued on the purely conjectural hypothesis that it miglxt be
of copper barely silvered over. And in 1808, to avoid con-
victing a woman for the capital offence of "stealing in a
dwelling-house to the value of forty shillings," a jury went so
far as to find on their oaths that a £10 Bank of England
note was worth only 39s. * The other force which similarly
' Pollock and Maitland, ii. 497. " There can we think be little doubt
that the 'taking and carrying away,' upon which our later law insists, had
been from the first the very core of the English idea of theft " ; ibid.
2 Siivra, p. 94. « 4 Bl. Comni. 239.
■• Hex V. Bridget Macallister (Sessions Papers, lxxxvi. 18). Sir
S. Romilly, citing this case in Parliament, mentioned another, in 1732,
where a woman had stolen two guineas and two half-guineas, but the jury
pronounced the total value of the four coins to be " under 40^'."
xiii] Larceny — the Taking 183
struggled against putting men to death for thefts was that of
the ingenious judicial legislation, to which we have already
referred. By it, as early as the reign of Edward III., many
articles were placed outside the protection of the law of
larceny on the ground of their supposed connexion with
immovable property, as for instance, title deeds to land, or
even the boxes in which such deeds were kept. Again,
under Edward IV., the judges declared certain acts of dis-
honest appropriation to be no larcenies, on account of their
not involving a sufficient change of technical possession.
By these and other modifications, the legal idea of larceny
has now come to be that of the crime which is committed
when any person (1) takeSj_a.nd (2) carries away — or when
(3) a bailee appropriates — (4) another person's (5) pereonal
chattel, (6) of some value, (7) without any claim uf right,
and (8) with an intention to deprive that other person of the
whole benefit of his title to the chattels Blackstone, with
attractive brevity, defines it simply as "the fe lonious t aking
and carrying away of the personal goods of another^"; but
thereby leaves unanswered the main question, viz., when j s
such an act felojiious ?
We must proceed to consider separately the eight points
which our own definition includes.
§ 2. The Taking.
We have seen that the common law made a change of
possession essential to larceny. Where there was no in-
fringement of possession, i.e., no "trespass," there could be
no larceny*. Thus the definition of this felony became
embarrassed with "that vaguest of all vague questions — the
meaning of the word Possession*." The utter technicality
of that question is vividly illustrated, for instance, by the
' Gf. 3 Coke Imt. 107 ; East P. C. c. 16, s. 2,
2 4 Bl. Comm. 230.
' L Hawkins P. C. c. 33, s. 1 ; Dalton 493 (K. S. C. 211).
« Per Erie, C.J., in Eeg. v. Smilh, 6 Cox 554.
184 Larceny hi/ a Wife [ch.
legal theory of conjugal life. A wife is held to be one person
with her husband ; and therefore a possession by her is
possession by him. Consequently an appropriation of his
goods by her would not constitute a change of possession;
and therefore did not at common law constitute a larceny'.
Nor did even adultery put an end to this. So if a wife went
away with money of her husband's, and then met her
adulterer and gave him this money, he could not be con-
victed of receiving stolen goods; for they had not been
"stolen^" Yet if the adulterer had instead assisted her in the
original taking of the goods, he could have been convicted of
a larceny of them'; for then he would have taken them out
of the actual possession of the husband himself Now, how-
ever, by the Married Women's Property Act, 1882*, both
husband and wife are criminally liable for stealing each
other's property, if (a) they were not living together at the
date of the offence, or if (6) the property was appropriated
with a view to their ceasing to live together. But when
thev once again are living together no prosecution can take
place. Thus a wife, so long as she has no intention of ceas-
ing to cohabit with her husband, retains even under the Act
of 1882 her immunity for committing thefts of his property*.
And even if she were to abscond from him temporarily and
to take away with her some of his property, but in the
expectation of ultimately returning to him and bringing it
back with her then, she would commit no larceny. For she
would not satisfy the final clause of the definition of the
offence; since she does not intend to deprive him of the
whole future benefit of the property.
1 Y. B. 21 Hea. VI. 455 ; 3 Coke List. 110 ; Hex v. Harrison, Leach
47 (K.S. C. 274).
2 Reg. V. Sirecter, L. R. [1900] 2 Q. B. 601 (K. S. C. 3G7).
3 Reg. V. Fcatherstone, Dearsly 369 (K. S. C. 274).
* 45 and 46 Vict. c. 75, ss. 12, 16.
» Reg. V. Smith, L. R. 1 C. C. R. 200 ; Reg. v. Streeter, L. R. [1900]
2 Q. B. 601 (K. S. C, 367).
xiii] Larceny by a Servant 185
But the necessity of protecting masters against the dis-
honesty of their servants soon caused the judges to make an
extension of the legal conception of changes of possession.
It came to be held^ that it was sufficient^ if, without any
change in the actual holding of an article, there were a
change of what, by a mere fiction of law, was regarded as
equivalent to possession — i.e., of a merely "constructive"
possession. Thus, where a butler has his master's plate in
his keeping, or a shepherd is in charge of his master's sheep,
the legal possession remains with the master; and similarly
the landlord of an inn retains the legal possession of the
silver forks and spoons which his customers are handling at
the dinner table. In all such cases, — where one person has
physical possession and yet the legal possession is "con-
structively" in some one else — the former person is not said
in law to have a " possession," but only "charge" or "custody."
If, however, he proceeds to appropriate the thing — e.g., if the
shepherd sells a lamb out of the flock — he thereby converts
his custody into a "possession": {i.e., into a "legal," though
not a laiuful, possession). Accordingly by thus converting to]
his own use the thing entrusted to him, and thereby ceasing
to hold it on that trust, the servant is regarded in law a&
creating a new possession, and thereby constructively "takino-"
the thing, so as to become as truly guilty of larceny as if ha
had never had it in his custody at all. I
Many other cases, too, besides that of master and servant,
may be found, in which the legal possession is divorced Irom
the physical possession, and in which accordingly it would
be a constructive "taking," and therefore a larceny, for the
custodian to appropriate the article to himself, though he
thus actually holds it. One such case arises whenever the
owTier of a portmanteau delivers it to a lad to carry for him
to his hotel, but accompanies the lad on his way and has no
intention of relinquishing the full control over the port-
1 Y. 13. 21 Heu, VII. Hil. pi. 21 (K. S. C. 21G).
186 Embezzlement [ch.
manteau'. Similarly whore at a railway booking-office a
lady handed a sovereign to a man to get her ticket for her
(he being nearer than she to the office window), it was held
that in point of law she still retained possession of the
sovereign ; consequently, when the man ran off with it, he
became guilty of larceny*. So, again, a cabman does not
get legal possession of his passengers' luggage when he
puts it on the top of his cab; hence if the passengers, on
quitting the cab, left some article behind them, it would be
a larceny, even at common law, for the cabman to appro-
priate it*.
Recurring to the particular case of servants, it may be
convenient to note here that when it was not by the master
himself, but by some third person, that chattels were en-
trusted to a servant, they are held to be not in the servant's
mere custody, but in his full legal possession. Such chattels
do not — in crimival law (see below, p. 228) — pass into the
possession of the master until they are actually delivered
to him ; as by the money being placed in his till. Ac-
cordingly, if the servant appropriates them whilst they are
only on the way towards such a delivery, he does not commit
larceny. Indeed until 1799 such an appropriation did not
constitute any crime at all. But in that year a statute was
passed making such conduct felonious*. It constitutes the
crime of Embezzlement, which we shall hereafter deal with
in details A dishonest servant commits embezzlement in the
case of things which he has received for his master; but
larceny in the case of those which he has received from
his master.
1 Cf. 2 East p. C. 633,
* Reg. V. Thompson, L. and C. 225.
3 LamVa Case, 2 East P.O. 66i ; licg. v. Thurboru, 1 Den. 387 (K. S.C.
276).
* 39 Cieo. 111. c. 8j. ^ Injiu, ch. xiv.
xjii] Larceny by Bailees 187
§ 3. The Carrying Away.
Grasping a thing is sufficient to confer possession of it,
i.e., to constitute a " taking " ; but it does not amount to an
" asportation," i.e., to a carrying away. Thus where A stopped
B, who was carrying goods, and bade him lay them down,
which B did, but A was arrested before he could touch them,
it was held that A had not committed larceny; for there
had been no carrying away. But the slightest removal will
suffice ; and this, even though the thief at once abandon the
thing'. Thus there is a sufficient asportation in taking plate (r^^-yf^
out of a chest and laying it on the floor'^; or in shifting a bale
from the back of a cart to the front ; or in pulling a lady's
ear-ring from her ear, even though the ear-ring be caught in
, her hair and remain in it^ The test seems to be, — Has ev ery / ' '^'^
! atom left the place in which that particular atom was before?/ -^o.
So there may thus be a sufficient carrying away even though
part of the thing still occupies the place which some other
part of it previously did ; e.g., by half-drawing a sword from
its scabbard, or lifting a bag part-way out of the boot of
a coach*, or pulling a pocket-book not quite out of a man's
pocket". There is, indeed, a case in which the raising of
a bale of linen cloth from a horizontal to a perpendicular
position was held not to be an asportation^ But here, as
the bale was flexible, moving the one end of it would not
necessarily cause the other end to move.
§ 4. Appropriation by a Bailee.
"Where the proprietor of an article te mporarily entrusts
not merely the physical but also the legal possession of it to
1 Rex V. Anier, 6 C. and P. 344 (K. S. C. 220).
2 Rex V. Simson, Kelyng 31 (K. S. C. 219).
3 Rex V. Lapier, Leach 320 (K. S. C. 222).
* Rex V. Walsh, 1 Moody 14 (K. S. C. 220).
5 Rex V. Taylor, L. R. [1911] 1 K. B. 674.
6 Rex V. Cherry, Leach 236, 321 (K. S. C. 218).
\
188 Larceny by Bailees [ch.
another person, e.g., to a carrier, a " Bailment " arises. The
temporary possessor, or bailee, was at common law not
indictable for larceny^ for as he (unlike a " custodian ") had
possession — legal as well as actual — of the article, it was
impossible for him to "take" it^ Here, again, it was the
necessities of domestic life that first compelled an extension
of the law. In the case of its being to one of his own
servants that the proprietor of an article thus entrusted the
legal possession of it, an appropriation by that servant was
made criminal by statute so early as Henry VIII.'s reign*.
But, in regard to all other bailees, the common law rule
remained in force for some three hundred years longer. The
judges had, however, so far back as the reign of Edward IV.*,
engrafted upon it the subtle distinction that if any bailee
dishonestly severed into separate parts the article bailed to
him — e.g., by drawing a pint of beer fi-om the cask he was
carrying — he thereby put an end to that possession of the
Thing, as a unity, which he held under the bailment. Ac-
cordingly a subsequent appropriation by him of any of the
parts thus separated — as by his drinking the pint of beer —
would amount to a " taking " of that part, and so would be
larceny. This rule as to "breaking bulk" brought within
the reach of punishment many cases of dishonest appropria-
tion. And in 1691 Parliament interposed, to extend the law
of larceny to lodgers who stole the furniture of the rooms that
had been let to them'. But it was not till 1857 that any
general provision was made for dealing comprehensively with
misappropriation by bailees. In that year a statute^j^aa
1 See Pollock and Wright on Possession, pp. 160 — 171.
2 Contrast the wider sweep of the Roman law of Furtum, Dig. XLva.
2. 52. 7. ' 21 Hen. VIII. c. 7.
« Tlie Cairier's Case, Y. B. 13 Ed. IV. f. 9, Pasch. pi. 5 (K. S. C. 223).
Stephen looks upon the decision in this case as an extraordinary one ; and
thinks it obvious that it was a compromise intended to propitiate the
Chancellor, and perhaps the King (Hist. Cr. Law, iii. 139).
5 3 W. and M. c. 9, s. 5 ; see now 24 and 25 Viet. c. 90, s. 74.
xiii] Larceny by Bailees 189
passed making it larceny for a bailee to appropriate to^ him-
self the articles entrusted to his charged This has since
been replaced by a clause in the Larceny Act of 1861 ^ which
provides that it shall be larceny for a bailee fraudulently to
convert any chattel, money, or valuable security _tp_the use_
of himself, or of any person but the owner ; even though he
do not determine the bailment by breaking bulk or other-
wise. Wide as these words seem to be, their effect has been
restricted, by judicial decision', to those bailments alone
under which it is the bailee's duty to deliver up at last
(whether to the original owner or to some one else), the
identical article bailed and not merely an equivalent for it.
Accordingly a land-agent usually cannot ,be indicted under
this statute^ for stealing the rent he has collected. Nor can
the auctioneer who sells an article for you and then absconds
with its price. Before the sale he was a bailee of the article,
and was bound to dispose of it according to your directions.
But after the sale he does not become a similar bailee of the
money which he has received for it, inasmuch as he is not
bound to deliver to you the identical coins.
In the case by which the principle was established, Reg.
V. Hassall, the prisoner was treasurer of a money club, and
had authority to lend to its members sums out of the club-
money in his hands. He misappropriated part of this fund.
It was held that he was not a bailee within the Act; since he
was under no obligation to pay over to anybody the specific
coins which had been paid to him. But the tendency is to
restrict rather than to enlarge the immunity so established.
Thus it has been held that there was a duty to deliver
over the specific coins received, in some cases where at
1 20 and 21 Vict. c. 54, s. 17. « 24 and 25 Vict. c. 96, s. 3.
3 Beg. V. Hassall, Leigh and Cave 58 (K. S. C. 227). On the doubt whether
the Act applies when the bailee has also a power to divest the bailor's
ownership (e.g. iu a "sale on approval"), see Whitehorn y. Davison, L.H.
[1911] 1 K. B. 4G3.
* But see another statute, that of lUOl, infra, p. 235.
190 Larceny hi/ Bailees [ch.
first sight it might have been supposed that the parties had
not created any such obligation. Thus in Reg. v. Aden^
a bargeman, who had been entrusted with £24 to buy a barge-
load of coals, and who appropriated this money, was convicted
of larceny under the statute ; apparently on the ground that
it was his duty to pay for the coals with the actual coins
which the prosecutor had given him. And, similarly, in
Reg. V. De Banks\ where the prisoner sold a horse for the
prosecutor and appropriated the purchase-money he received,
there was held to be evidence of his holding this money
under such a bailment as would come within the statute.
(There is nothing unreasonable in making such a bailment,
even of a " fungible " thing like money. It has even been
said, and by judges so eminent as Lord Wensleydale and the
late Mr Justice Willes, that whenever a servant receives
money for his master from anyone he is bound to hand over
the very same coins that he received*.) But* whilst Aden or
De Banks was a mere bailee of a fixed sum which he had
only to hand over, Hassall's club-money was left in his hands
as a fund which he had to deal with, so that he was a trustee
of it, with complex duties to discharge.
It should be noticed that the idea of bailment is not
confined to cases where the article has been in the bailor's
own possession before it was delivered to the bailee"*. Thus
if a vendor of goods deliver them to a carrier for conveyance
to the purchaser, it is the latter that is regarded in law as
the bailor ; for the vendor, who actually handed them over
to the bailee, is regarded as having done so only as an agent
for the purchaser*. It must also be noticed that bailment
requires nothing more than simply a delivery upon a trusty
' 12 Cox 512. 2 L. R. 13 Q. B. D. 29. ' L. and C. 62.
" lieg. V. Governor of Hollow mj Prison, 18 Cox 631 (K.S.C. 229J.
e See Reg. v. Bunkall, L. and C. 371 (K. S. C. 231).
« Beujamin on Sales, Book i. Pait i. cli. 4.
xiii] Larceny hy Bailees 191
Hence, though there is usually also a contract, express or
implied, to fulfil this trust, there may quite well be a bail-
ment even where no such contract can exist, as when goods
are delivered to some person who is incapable of contracting.
Accordingly, if an infant hires furniture, though no valid
contract of hiring may arise S he nevertheless becomes a
bailee. Consequently, if he proceeds to sell the furniture, he
will be guilty of larceny under this statute-.
Before a bailee can be convicted of larceny, it must be
clearly shewn that he has really converted to his own use the
article entrusted to him. Only some act of conversion that
is quite inconsistent with the bailment can amount to a
sufficient appropriation. In the case of a bailment of silver <
forks for use, melting them down would of course always bej
evidence of a conversion ; and so would selling them. But as
to pawning, a distinction must be drawn. If the bailee can
shew that when he pawned the goods he honestly intended
to redeem them subsequently (which might very well be
made out by instances of his previous similar conduct), and
can also give proof of there having been a full prospect of
his getting money enough to carry out this intention, the
pawning will not amount to a conversion". But if he had
merely a vague intention to redeem the goods at some future
time if he should happen to become able to do so, then he
clearly acted in a manner quite inconsistent with his duties
as bailee, and so became guilty of larceny*. It may be well to
point out that when once a bailment has come to an end, and
the article bailed has returned into the possession oi its pro-
prietor, no contracts subsequently made about it by the
ex-bailee — such, for instance, as a bargain by him to sell it —
can amount to a conversion ^ This seems obvious enough ;
1 Anson on Contracts, Part n. ch. iii. s. 2.
2 Reg. V. Macdonald, L. K. 15 Q. B. D. 323.
^ But may be a petty offence of " Unlawful Pawning"; 35 and 36 Vict.
c. 93, s. 33. And the loss of control is a breach of his contract.
* Reg. V. Medland, 5 Cox 292 (K. S. C. 236). Cf. p. 212 infra.
6 Reg. V. Joji£s. C. and M. 611 (K. S. C. 237).
102 Larceny — the Oivnership [cii.
but a student may sometimes be apt to overlook it, in conse-
quence of the difficulty of tracing the changes in the legal
possession.
It is desirable to notice that there does not exist, as seems
to be sometimes supposed, a specific offence entitled " larceny
by a bailee." The statute simply places conversion by a
bailee on the footing of ordinary larceny ; so that an indict-
ment for it need not even contain the word " bailee."
§ 5. The Ownership.
Things which do not belong to any determinate owner
cannot be the subjects of larceny. One conspicuous example
of such things is a human corpse, and accordingly the
" resurrection men " who, in the days before the passing of
the Anatomy Act', used to violate churchyards in order to
supply the dissecting-rooms with "subjects," committed no
larceny in taking the bodies. (It was otherwise if they
carried off a coffin or graveclothes ; for these remained the
property of the executors who had bought them.) But a
consequent question, of much practical importance yet still
unsettled", is whether the rule of law must further be taken
to be that " once a corpse, always a corpse " ; for, if so, the
protection of criminal law will not extend even to skeletons
and similar anatomical preparations on which great labour
has been expended^ or to ethnological collections of skulls or
mummies brought to this country at great cost.
Even an article that has an owner may come to be inten-
tionally abandoned by him ; and of such " derelict " articles
there can be no larceny ^ Thus abandoned wrecks', and
1 2 and 3 Wm. IV. c. 75.
2 See the conflicting judgments in Doochcard v. Spcnce, 9 New South
Wales Kep. 107. From the decision, recognising ownership, the Judicial
Con}mittee refused leave to appeal.
3 Stephen, Dig. Or. Law, Art 318.
* 2 Bl. Comm. 9; Eeg. v. Peters, 1 C. and K. 247; Beg. v. Rccd, C. and
M. ;]07; Justinian's Digest, XLvn. 2. 43. 9. ° Whales are "wreck."
xiii] Animals ferae naturae 193
treasure -trove that has no longer any owner, are incapable of
being stolen', until after they have been taken possession of
by the Crown, or by some person to whom the Crown has
granted the franchise of taking them.
Animals ferae^ naturae, straying at large, form the most
important of all the classes of things which have no o^\^ler.
Even the (so-called) property per privilegium, which the lord
who has a chartered park or forest is regarded by law as
having over certain of the wild creatures in it, is not a suffi-
cient ownership to sustain an indictment for larceny^; for it
is not so much an ownership as a peculiar right to obtain
ownership. For the general principle of law is that all true /
ownership of living things depends upon actual control over /
them. Domestic animals (such as horses, oxen, sheep), or
domestic fowls (such as hens, ducks, geese), usually have
a settled home, and so come under the control of its occupier ;
and consequently are larcenable*. If they are so, their eggs
and other produce will equally be larcenable ; and this even
when the produce is stolen directly from the living animals
themselves (as by milking cows®, or plucking wool from the
backs of sheep^), before the true owner has ever had posses-
sion of it as a separate thing. But over animals that are of
a /era natura there is usually no control, and therefore no
ownership. Ownership over them whilst uncontrolled, if it
were to exist, could exist only in the owner of the land where
at any moment they were ; and it would be futile to recog-
nise any such mutable ownership, which the animal itself
might vary from hour to hour. But a power of control may
1 22 Lib. Ass. 95, 99 ; 1 El. Comm. 295 ; Williams' Personal Property,
47 ».
- Ferae, here, is of course an adjective. Yet people talk about " hunting
and shooting our English ferae naturae"; and both Sir Walter Scott
{Antiquary, ch. xxii.) and Sir W. H. Eattigan (Jurisprudence, p. 138) have
fallen into like error.
3 7 Coke Eep. 17 b. "1 Hale P. C. 511.
" 2 East P. C. 617. « Eex v. Martin, 1 Leach 171.
K. 1 3
11^4 Animals ferae naturae [ch.
of conrse^be created' ; either per industri<nn, by their being
killed, or caught, or tarnqd^ ov propter impotentiam, by their
being too young to be able to get away. Consequently
larceny may be committed of pheasants which have been
shot, or deer which have been so enclosed in a park that they
may be taken at pleasure' ; or of fish in a tank, or even at
large in a mere pond, though not when at large in a running
stream ^ Again, young partridges reared under a barndoor
fowl and not yet old enough to leave her protection^ are the
subjects of a true ownership, and so are larcenable'.
The degree of physical control which is necessary to esta-
blish ownership will vary with the habits of the particular
species concerned. Creatures may be subjects of ownership
although they are not closely confined but are allowed to
wander away from home, provided they have a settled habit
of returning thither ; and this will be so although they are
not shut up, even at nights Peacocks, ducks, geese, and
pigeons readily acquire this animus revertendi; unlike
pheasants and partridges. This rule, that the taking of
ownerless things^ cannot be a larceny, still holds good ; but
the modem statute-law has created many offences of dis-
honesty which it has not erected into larcenies. And thus
deer-stealing", the taking of hares or rabbits in warrens in
the night-time^", and the taking of fish from private waters",
^ Williams' Personal Property, Part i. ch. i.
2 Bex V. Rough, 2 East P. C. 607 (K. S. C. 2.:0). ^ i Hale P. C. 511.
* Ibid. At Cambridge in 1G27, before Harvey, J., two men were con-
victed of larceny for taking fish out of a net lying in the river; Dalton'a
Justice, 350.
6 Reg. V. Shirlde, L. E. 1 C. C. K. 159 (K. S. C. 251). But the young, or
the eggs, in a icild bird's nest are not in the landowner's Possession; and so,
though his, are not larcenable; Rex v. Stride, L. R. [1908] 1 K. B. 617.
6 Y. B. 18 Edw. IV. fo. 8, pi. 7 (K. S. C. 219). Cf. 7 Coke 17.
' Reg. V. Cheafor, 2 Denison 361.
» The Case of Peacockx, Y. B. IB Hen. VIII. pi. 11 (K. S. C. 250).
« 24 and 25 Vict. c. 96, ss. 12—15. i" Ibid. s. 17. '' Ibid. s. 21.
xiii] Creation of ownership 195
have been made punishable offences ; but they vary greatly
in their degrees of heinousness as well as in their punish-
ments ^
It is important to notice that larceny requires not only
an ownership, but an ownership which existed already before
the act of taking. Hence a proprietorship that was created
only by that very act will not suffice. Thus, although
rabbi ts or w ild pigeons,, on being killed by a trespasser,
become the property of the owner of the land where they are
killed'*, yet if this trespasser who kills them should proceed
to carry them away, he will not commit larceny thereby.
For the ownership which he infringes did not exist before he
killed the creatures. Moreover even if, after killing them
and taking them into his possession, he should go away and
leave them on the land, with the intention of returning for
them, and afterwards should so return and take them away,
these proceedings will be regarded by law as a single con-
tinuous act, and therefore will still constitute no larceny ^ But
if he had left them on the land with the idea of abandonins'
them altogether, he would thereby have ceased to be their
possessor, and they would pass into the legal possession of the
owner of the soil*; so that if the trespasser should afterwards
change his mind and come back and seize them again, this
would be an entirely new act of taking. And, as it would be
the taking of a thing which now had got an owner, it would
be a larceny. Where a man, employed to trap rabbits, put
some into a bag in order to appropriate them, and a keeper
(suspecting him) nicked them, during his absence, for pur-
poses of identification, it was held that the nicking was not
sufficient to reduce them into the possession of the keeper or
of his master. Hence the trapper did not become guilty of
^ Infra, p. 221.
« Blades v. Higgs, 11 H. L. C. 621.
* Reg. V. Townley, L. R. 1 C. C. R. 315 (K. S. C. 255).
* Cf, Reg. V. Foley, L. R. (Ir.) [1889] C.L. 299 (K. S. C. 241).
13—2
196 Stealing from yourself [ch.
larceny by carrying them away, even after they had been
thus nicked\
But though there can be no larceny of things which have
no owner at all, there may be a larceny in spite of the owner
being unknown and undiscoverable ; as in the case of brass
plates being stolen from old coffins in a vault. It is well,
however, to bear in mind Sir Matthew Hale's caution never
to convict any person of having stolen from a supposed but
unknown owner, merely because he has been found in posses-
sion of property under suspicious circumstances and will not
give an account of how he came by it^. Even if a tramp is
found to have six gold watches in his pocket, he ought not to
be treated as a thief until some definite proof can be obtained
of their having actually been stolen somewhere.
In conclusion, we may point out that though there can
only be a larceny where the thing (at the time of being
stolen) already belonged to some other person, it is not
necessary that this person should be a sole owner, or even
a full owner, {a) He may, for instance, be merely a joint-
owner with the thief himself. At common law, indeed, this
was not possible ; for, as every co-owner is lawfully entitled
to the possession of the whole thing, he could not commit
larceny by taking it. But now, by 31 and 32 Vict. c. 116, s. 1,
a beneficial co-owner or co-partner may be tried for stealing
or embezzling, as if he had not been owner. (6) Again, even
at common law, the person stolen I'rom may be onu who has
even a less interest than that of a co-owner, no interest
beyond a mere right to the possession of the thing stolen, — a
mere bailee (nay, even a thief who had himself stolen it).
, Consequently, paradoxical as it may seem, a man may
Icommit larceny by stealing his own property. For wlien"
an owner of goods has delivered them to any one on such
a bailment as (like those of pawn and of hire) entitles the
1 Reg. V. Fetch, 1-t Cox 116.
« 2 Hale P. C. 290 (K. S. C 4G7). Cf. 26 T. L. R. 265.
xiii] Larceny — its subjects 197
bailee to exclude him from possession^ that owner may
become guilty of larceny, even at common law, if he carries
them off from this bailee with any intention to defraud him.
He might, for instance, aim at defrauding him by making
him chargeable for the loss"'*; or by depriving him of an
interest which he had in retaining his possession,rguch as the
lien of a cobbler upon the boots which he has mended, for the
cost of the mending \ Possibly it will suffice even though
the intention was to defraud (not the bailee but) some other
person ; as where the owner of goods, which are in a bonded
warehouse, surreptitiously takes them out, in order to cheat
the Crown of the customs-duty payable on them^ An old
illustration is that of a man who sent his servant on a journey
in charge of some valuables, and then disguised himself as
a highwayman and robbed the servant of these things, in
order to claim their value from the inhabitants of the
Hundred, under its ancient liability to make good the loss
sustained by a crime of violence committed within its
boundaries*. But Mr Justice Wright, in his learned Essay
on Possession*, doubts that the owner of a thing can commit
any larceny of it by taking it away from a mere bailee at
will, such as his own messenger would be.
§ 6. The Subject-Matter.
Some of the very early Roman lawyers had thought there
might be furtum fundi locive, i.e., that land was legally
capable of being stolen. But, even before the time of Gaius,
all the jurists came to abandon this view. No one ever held
' Williams' Personal Property, Part i. ch. i. § 2. 2.
2 1 Hale P. C. 513.
^ Williams' Personal Property, Part i. ch. i. § 2. 6. Cf. Justinian, Inst.
IV. 1. 10.
* Rex V. Wilkinson, R. and K. 470 (K, S. C. 253).
5 2 East P. C. 654. (K. S. C. 260.)
* Pollock and Wright on Possession, pp. 165, 228. Cf. Bishop's
Criminal Law of U.S.A., Sth ed. ii. § 790.
198 Things real [ch.
it in Enc^land. For, since a larceny could only be committed
by carrying a thing away, this clearly made it essential that
the thing should be movable. Moreover, just as we have
seen that some other person's ownership over the thing must
exist before the act of theft, and not merely be created by
it, so also this movableness of the thing must have existed
before it was taken. A thing therefore was not larcenable if
it first became movable by the very act of the taking. Thus
it is no theft at all to take sand from a pit or a river-bed ; or
to pull doNvn a wall' and carry away the bricks. And it is no
larceny to strip woodwork or other fixtures from a house, or to
cut down a tree'^; but these acts have now been made specific
statutory felonies', so that if a man demolishes some one
else's house and sells the materials, he may be proceeded
against in respect of the fixtures. Yet, even at common law,
there would be a larceny if, after the severance had once
been fully completed, the fixtures or the trees were aban
doned by the thief but he afterwards changed his mind and
returned and carried them away. As Hale says, it become
larceny if the act is "not continuated but interpolated*." But
a mere interval of time is not sufiicient to deprive the act of
its continuous (and therefore non-criminal) character, if all
the while after the severance the severer retained his inten-
tion of possessing the thing. On this point Toiunleys Case*
may again be referred to, as shewing how a poacher who shot
rabbits and hid them in a ditch, and then went away, never-
theless retained " possession," during that interval of personal
absence, by mere continuousness of intention. It will be
instructive to a student to compare this decision with the
case of Reg. v. Foley^. In the latter case a trespasser mowed
' Bnt this is Eucrime of Malicions Damage ; .nipra, p. 166.
* The Forester's Case, T. B. (Rolls Ser.) 11 and 12 Edw. III. G41
(K. S. C. 238). Cf. Ileg. v. Pinchbeck (K. S. C. 355).
a 24 and 25 Vict. c. 96, ss. 31, 32. * 1 Hale P. C. 510.
5 L. R. 1 C. C. R. 315 (K. S. C. 255). Supra, p. 195.
« L. R. (Ir.) [1889] C.L. 299 (K. S. 0. 241).
t\
XII i] Things quasi-real 199
some grass, but left it where it fell ; then, after two days, he
returned and took it away. It was held by the Irish Court
for Crown Cases Reserved that, even if he had a continuous
intention, there was not a continuous possession ; and, there-
fore, that his ultimate removal of the grass constituted a
larceny. If this case be regarded as at variance with that of
Townley, the latter is of course the one to be followed by
English courts. But the two may be reconciled if it be
thought right to lay stress on the distinction that Townley,
unlike Foley, performed an unequivocal act of taking posses-
sion, by hiding the rabbits, before he left the field.
It seems strange that land, by far the most important
form of wealth in the middle ages, should have been left
unprotected by our early criminal law. The omission, how-
ever, as Sir James Stephen^ points out, is rendered more
intelligible by the fact that in ordinary cases it is nearly
impossible to misappropriate land without resorting to some
act which itself is criminal, such as personation or forgery.
But a dislike to capital punishment was probably the reason
why the judges went still further, and excluded from the
scope of larceny even things that really were movable and
had only a technical comiexion with the land ; as when they
held it to be no crime to carry off dung which had been
spread upon a fields Moreover, even standing corn and
similar growing crops, although the law of property gives
them to a deceased owner's executors as chattels personal,
were held in criminal law to savour so far of the realty as
not to be larcenable'. Yet, on the other hand, some things
which do not thus go to the executor, but to the heir, are
larcenable ; e.g., some species of heirlooms. It has similarly
been held in an American case* that though, by a very
reasonable rule of law, the keys of a house always pass along
1 Hist. Cr. Laic, iii. 126.
» Carver v. Pierce, Style 66 (K. S. C. 238). ' 3 Coke Inst. 109.
* Hoskim v. Tarraiice, 5 Blackford 417 (K. S. C. 239).
200 Larceny — the Value [en.
with it on any alienation (whether by death or by convey-
ance), the legal identification of them with the realty does
not go so far as to prevent its being a larceny to steal them.
In general, however, the rule of immobility extends to
all things which any legal fiction identifies with the land,
even though they be physically movable. This is the case,
for instance, with title deeds'; they would not pass under
a grant of "all my goods and chattels": hence they are not
larcenable. And a sealed-up box, inclosing such deeds, has
been held to be so identified with them as itself to become
not larcenable^ (An additional reason has been given for
this non-larcenability of title deeds; namely, that their value
is so indefinite that it was impossible to say whether or not
they were worth mcne than 12d ; cf. p. 218 infra. For a
still better reason — Identification with the right they evi-
dence — see p. 202 infra.) It has now been made a statutory
felony to steal, or to destroy, documents of title to land"*; but
such a theft is still no larceny.
It may be convenient here, if not strictly relevant, to
mention that, even at common law, gas is larcenable* ; and
that by the Electric Lighting Act, 1882', electricity has also
been made larcenable.
§ 7. The Value.
A thing is not larcenable unless it possesses some value.
"De minimis non curat lex." Otherwise it would, as Lord
Macaulay says, be a crime to dip your pen in another man's
inkstand, or to pick up acorns in his garden to throw at
a bird*. But the exact measure of this value has never been
» 1 Hale p. C. 510 ; Stephen, Hist. Cr. Law, iii. 138.
« Y.B. 10 Ed. IV. fo. 14, pi. 9 ; Dalton, c. 156, s. 8.
3 24 and 25 Vict. c. 96, 8. 28, re-enacting (with additions) 7 and 8
Geo. IV. c. 29, e. 23.
♦ Reg. V. Firth, L. R. 1 C. C. B. 172.
^ 45 and 46 Vict. c. 56, s. 23.
' Note N, to his Indian Penal Coda.
xiii] Value of Animals 201
fixed. Its indefiniteness gave scope for the humane ingenuity
of the judges. Hence many things in which a legal property
existed, and which were of such appraisable importance that
damages could have been recovered in a civil action for taking
them away, were held to be below the minimum of value
that was necessary to support a conviction for the felony of
larceny. A vivid illustration is afforded by the fact that
at one time it was doubted whether even jewels had any
such intrinsic worth as to be larcenable, "though some do
hold them precious ^" It is clearly settled that the law of
larceny affords no protection for such animals as serve neither
for draught nor for food I Hence clearly there was no crime
in stealing cats, ferrets^ monkeys, nightingales, parrots,
or canaries. The principle was applied even to dogs; for
"a man's two best friends — his wife and his dog — were
singularly disregarded by the old common law^" (Yet, for
taking a dog, damages could be recovered in a civil action^
even in very early days, and it was never denied that steal-
ing a dog's collar, or even stealing the dressed skin of a
dead dog, would amount to larceny.) Bees, however, though
themselves inedible, were a source of food, and consequently
were held" to be larcenable; and the law similarly protected
the hawk when tamed, "in respect of the nobleness of its
nature, and its use for princes and great men'." A statutory
protection, however, though less stringent than that of
^ Lambard, p. 275 ; citing Hales, J., temp. Ed. VI. Lambard enu-
merates as larcenable "horses, mares, colts, oxen, kiue, sheep, lambs,
swine, pigs, hens, geese," etc.
2 1 Hale P. C. 512.
3 Rex V. Searing, Leach 350 (K. S. C. 244).
^ Ingham's Law of Animals, p. 57.
5 Y. B. 12 Hen. VIII. 3. Manwood (Forest Laws, p. 09, a.b. 1598)
speaks of even mortgages and pledges of dogs, as if quite frequent. Yet
the civil action has recently been refused in America, in deference to the
old rule of larceny ; see 75 Georgia 444.
« Hannam v. Mockett, 2 B. and C. at p. 944. ^ i Hale P. C. 512.
202 Documents of Title [en.
larceny, has been given in modern times to every animal or
bird that is ordinarily kept for domestic purposes, or even
kept in confinements
The rule Avhich made value essential to larcenability was
extended artificially by a fiction which identified the docu-
mentary evidence of any right with the right itself, so that
if the subject of the right could not be stolen the document
could not be. "The accessory must follow its principal."
We have already noticed one of the applications of this rule,
the case of the title deeds of real property. It was (and is)
larceny to steal a skin of parchment before the scrivener has
engrossed the words of a deed upon it; but when multiplied
manifold in value by engrossment and execution, the parch-
ment passes beyond the protection of the law of larceny.
The same principle would apply to documents which were
evidence of the right to any mere chose in action*^; such
instruments as a promissory note, or even a contract for the
sale of a quantity of unascertained goods. But a document
of title to specific goods, which themselves are larcenable,
would itself be larcenable; e.g., a pawnbroker's duplicated
This latter instance shews that the legal identification of the
evidence with the right evidenced is now the only reason why
the thief of a lease or a conveyance cannot be indicted for
simply stealing so much parchment. It cannot be (as used
to be said) the mere smallness of the intrinsic value of the
parchment or paper ; for it is now quite clear that an indict-
ment for the larceny of merely " a piece of paper " is good,
and counts so expressed are habitually inserted in indictments
for stealing post-office letters. Accordingly convictions have
taken place ior the larceny of proof-shcets^ of cancelled bank-
' Ivfra, p. 222. The individual must be so kept ; the species need not.
- Dalton, 501 ; cf. Williams' Personal Properly, Introd. § 3. But note
also p. 222 (1) infra. * Reg. v. Morri)<on, Bell 158.
* A proof-sheet containing secret information {e.g., a telegraphic cipher-
code, or the forthcoming annual report of the Directors of a Compauj')
might have very great pecuniary value to certain persons.
xiii] Claims of rigJtt 203
notes\ of a worthless cheque-, and of a small slip with
memoranda jiencilled on it*. Indeed the principle is now
distinctly laid down that although, to be the subject of
larceny, a thing must be of some value to its owner, if not
to other people, yet this need not amount to the value of the
smallest coin known to the law, or of even "the hundredth
part of a farthmg^" In Reg. v. Clarence^, Mr Justice Hawkins
even went so far as to say, though only incidentally, that
stealing a single pin would be larceny.
To have omitted from our definition of larceny all refer-
ence to the element of value would have been to leave
unexplained some well established points of law. But it
must frankly be admitted that, if the word be thus retained
in the definition, it must be understood in some sense which
is neither a natural nor even a precise one".
§ 8. The Claim of Right.
If property is taken by legal right, obviously no wrong,
either civil or criminal, is committed by taking it. But in
criminal law immunity is carried still further. Ail act of
taking will not amount to larceny unless it be committed
not only without a legal right, but without even any appear-
ance (or, in the old phrase, "colour''") of a legal right.
Accordingly the ordinary mens rea, which is quite compatible
with an honest ignorance of law^, does not suffice to constitute
guilt in cases of larceny ; for any bond fide claim that is at
1 Eex V. Clark, R. and R. 181. A telegram ; C. C. C. Sess. Pap. cliii. 451.
2 Reg. V. Perry, 1 C. and K. 729 (K. S. C. 215).
3 Reg. V. Bingley, 5 C. and P. 602.
•" Reg. V. Morris, 9 C. and P. 349, per Parke, B.
5 L. R. 22Q. B.D. 23.
6 Bishop (ii. § 57. 9) treats the rule as now quite obsolete in American
law.
' Under the colour of commending him
I have access my own love to prefer.
Two Gentlemen of Verona, iv. 2.
* Supra, p. 07.
204 Claims of rigid [ch.
all reasonaLle will suffice to deprive the takers act of any
larcenous character'. It is a question of fact, for the jury,
whether the goods were taken with such a belief or not.
But there is high authority for saying that " If there be in
the prisoner any fair pretence of property or right, or if it be
brought into doubt at all, the court will direct an acquittal V
The best evidence that there was actually a sincere claim of
right is that the goods were taken quite openly^ A surrep-
titious taking, or a subsequent denial of the taking, or a
concealment of the goods, goes far to suggest a felonious
intent.
The following instances may be suggested in which the
carrying off of some one else's goods will be unpunishable,
on account of their being appropriated under a bond fide
claim of right.
(1) Where something is seized by a landlord in a distress
for rent ; even though he be mistaken in thinking that any
rent is due, or even though the article seized be one which is
privileged by law from being distrained on*.
(2) Where com is taken by a gleaner, honestly and openly,
in a locality where gleaning is customary ^
(3) Where the taker believes that what he is taking is
his own jproperty^, or that it is something which he has a
right to take, whether as an equivalent for his own property'
or with a view to mere temporary detention {e.g., by way of
lien^). Thus, at the Cambridge Assizes in 1897, a nobleman's
' E.g., error of law as to the rights of a Finder (C. and M. 30G) or of a
Poacher (3 C. and P. 409).
2 East, Pleas of the Grown, 659.
« 1 Hale P. C. 509; Causexj v. The State, 79 Georgia 564 (K. S. C. 281).
4 See 1 Hale P. C. 506, 509.
B 2 Russell on Crimes (6th ed.), p. 217.
6 Rex V. Hall, 3 C. and P. 409 (K. S. C. 2.S0),; cf. 3 Cr. App. R. 92.
7 Reg. V. Boden, 1 C. and K. 305 (K. S. C. 282).
8 Reg. V. Wade, 11 Cox 549 (K. S. C. 283). See also p. 210 infra.
XI ii] Oivne7''s consent 205
housekeeper who, on leaving her situation, had taken away
some things belonging to her employer, was prosecuted for a
larceny of them. But it appeared that she had an unpaid
account outstanding against her employer for expenses in-
curred by her for him ; and that she took away the articles
without any effort at concealment, under the mistaken belief
that as creditor she had a right to seize her debtor's property
for the debt. Pollock, B., accordingly advised the jury to
acquit her.
(4) Where the taking is by consent of the owner'.
Upon this point a question of considerable practical
importance often arises in consequence of the plans laid by
the police for the detection of a suspected thief. If, for
mere purposes of detection, the owner of goods acquiesces
in a thief's carrying them off, does such a consent suffice to
prevent the thief's act from being a larceny ? We have seen
that, in burglary, an entry permitted, after an unsuccessful
attempt to deceive, does not amount to a constructive break-
ing''. Similarly in larceny, if the owner desired that the
thief should actually remove his goods, or, still more, if he
had employed someone to suggest to the thief the perpetra-
tion of the theft, 'his action would constitute a sufficient
consent to render the taking no larceny, although his sole
object was to secure the detection of the offender. Yet if
he went no further than merely to facilitate the commission
of the theft {e.g., by allowing one of his servants to assist the
thief), such conduct would no more amount to a consent than
if a man, knowing of the intention of burglars to break into
his house, were to leave one of the bolts on the front door
unfastened*.
'But the^w ner's consent must of course be a true consent
— a frgg_ and a full^ ne. Thus it can afford no defence where
1 Rex V. Macdaniel, Foster 121 (K. S. C. 259).
» Reg. V. Johnson, C. and M. 218 (K. S. C. 171). Supra, p. 173.
« Pxex V. Eggintotif Leach 913 (K. S. C. 2G0).
206 Larceny hy a Trick [ch.
it is obtained from him by Intimidation. In such a case his
will is overborne by compulsion ; as where the keepers of an
auction-room forced a woman to pay for some lots which she
had nut bid for, by threatening that she should not be allowed
to leave the room until she had so paid\ Much more frequent
than intimidation, however, is Fraud ; which is equally effective
in removing all exemptive character from an apparent per-
mission. Consent obtained by fraud is not a true consent.
Hence wherever an owner's consent to the taking of his
goods is obtained animo furandi, the deception vitiates the
consent. The taker is accordingly guilty of "larceny by a
trick'-." It should be noticed that here he has a guilty
intention at the time when he receives the thing from the
owner. If he had received it innocently, and had not con-
ceived until aftenvards the idea of appropriating it, his
conduct would not be larceny ; (unless by statute, sec p. 189).
In some cases an actual " trick " is carried out, some false
artifice or misrepresentation, like those involved in the use
of false weights, or in the practices of ring-dropping^ and
of "ringing the changes*," or in the "confidence trick'."
Still simpler pretences are a representation by the thief that
he has been sent by customers to fetch a\vay the goods* they
had bought ; or a representation that he wants change for
a sovereign, which affords him an opportunity of running
off with both the sovereign and the change also^ But it
is not essential that there should be any such active fraud.
* It is enough if the offender obtains the thing from the owner,
^ fully intending to appropriate it, and knowing at the same
' Ee(j. V. McGrath, L. R. 1 C. C. 11. 205 (K. S. C. 262). Contrast 4 F.
and F. 50. See Eex v. Hillinrd, 9 Cr. App. E. 174, on theft by drugging.
- A common but puzzling offence. ISee Oppenheimer v. I'razer, L. K.
[1907] 2 K. B. 60.
- Hex V. Patch, 1 Leach 238.
* Reg. V. McKale, L. R. 1 C. C. R. 125.
Rex V. Standley, R. and R. 305.
8 Rex V. Hench, R. and R. 163 (K. S. C. 264).
1 Rex V. Williams, 6 C. and 1'. 390 (K. S. C. 265).
xiii] Midclleton's Case 207
time that the owner does not intend him to appropriate it. "
It IS thus abundantly clear that if the owner only consents"
to give up the mere possession of the thing {e.g., to lend a»
horse for a ride), the fact that this consent was obtained by »
fraud will prevent its constituting any defence for the larceny'"
of subsequently appropriating the thing.
But if the owner had consented to give up not only his
Possession but also his Property in the thing, then — even
though there may have been such fraud as to vitiate the
transaction, still more if there were merely the owner's own
mistake — may not a valid possession have passed in spite of
the error, and a larceny consequently have been rendered
impossible ? This question involves various alternative
possibilities ; which we must consider separately.
(a) It is usually by active Fraud on the part of the thief,
and not by a mere spontaneous blunder of the owner himself,
that the latter is led to give a defective consent to a transfer
of his ownership. But such a fraud may take either of two
forms. If it be merely such as, in property law, gives the
alienor only a right to rescind the alienation, and does not
prevent a legal ownership (though a merely voidable one)^
from passing meanwhile to the alienee, then the alienee's
crime will not be that of larceny, but only the misdemeanor
of obtaining by false pretences^ If, however, the fraud
related to some circumstance so fundamental that, notwith-
standing the owner s intention to alienate, no right of pro-
perty (not even a voidable one) passed to the author of the
fraud, the latter will have committed a larceny^ Similarly,
there will be a larceny if the owner's intention was not to
make 5in immediate and absolute alienation but only a
deferred or a conditional one ; as where a stranger purports
to buy a horae in a fair for ready money, but mounts it and
1 Or a power to confer ownership; L. E. [1911] 1 K. B. at p. 479.
2 See p. -241 infra.
3 Cf . L. R. , 2 C. C. R. at p. 45 ; Rex v. Tuleswell, L. R. [1905] 2 K. B. 273.
208 Thefts by Fraud [ch.
rides off without paying the price'. Such a transaction may
at first sight seem to resemble the misdemeanor of a fraudu-
lent obtaining of ownership, rather than the felony of lar-
cenously taking away possession from a continuing owner.
But the latter view of it has prevailed ; for the owner, it is
said, must have intended only a conditional alienation, not
meaning the property to vest absolutely in the recipient
until the price was paid. This argument, however, does of
course involve a conjectural assumption as to the owner's
state of mind with regard to a contingency that possibly
never occurred to his mind at all. A further reason, perhaps
more satisfactory, is that inasmuch as there was no consensus
voluntatuvi, no " meeting of two minds in one and the same
intention* " — the prisoner never having any genuine intention
to contract — the arrangement (whatever its conditionality or
unconditionality) was wholly void in law, and therefore could
confer on the prisoner no rights whatever ; though he himself
would be " estopped'" from asserting its invalidity.
(6) Occasionally, liowever, a man's own spontaneous
Mistake leads him to wish to make over all his rights in
some chattel. If that mistake amounts to a Fundamental
error*, and the recipient knowingly and dishonestly avails
himself of it and appropriates the thing, does he commit
larceny ? This question was discussed very fully in Reg. v.
Middleton^ A post-office clerk, when about to pay out
money to a savings-bank depositor, consulted by mistake
the wrong letter of advice ; and consequently handed over
to the depositor a far larger sum than really stood to his
credit. The man took the money, knowing full well that it
1 Reg. V. Russctt, L. R. [1892] 2 Q. B. 313 (K. S. C. 349). See also
Reg. V. Buckmaster, L. R. 20 Q. B. D. 182. Cf. 4 Cr. App. R. 17, 53.
2 Pollock on Contract, p. 3. Rex v. Oliver, 4 Taunton 275.
■* Anson on Contract, Part ii. ch. iv. sec. 2. Cf. Freeman v. Cooke,
2 Kx. 654.
* Pollock on Contract, ch. ix. p. 488; Anson on Contract, ii. iv. 1.
6 L. B. 2 C. C. E. 38 (K. S. C. 266).
xiii] Consent of owner's Agent 209
was paid to him by mistake. On being inflicted for larceny,
he was convicted; and tho conviction was upheld by eleven
judges against four. Eight of these eleven judges held that,
even here, the clerk's mistake was sufficient to prevent both
the property and even the possession from passing^ ; so
that the prisoner's taking of the coins was felonious. They
insisted that ajrijQrii. inoperative intention on the part of an
owner to pass the property — inoperative in itself, and known
to the thief to be inoperative — could not be enough to pre-
vent the appropriation from constituting a larceny. On the
other hand, seven judges thought that an owner's consent to
pass not only possession but also property might, even when
too defective to pass a perfect title, still suffice to prevent the
taking of possession from being a larceny; in spite of there
being mistake, or fraud, of such a nature as to prevent the
consent from being operative. (But three of these seven,
it may be added, upheld nevertheless the conviction of
Middleton ; on the ground that the full authority of an owner
had not been delegated to the post-office clerk.)
It is therefore still somewhat uncertain whether, where
an owner intends to part with possession and property, but
does so only in consequence of a spontaneous mistake (how-
ever fundamental) which is detected by the taker, the latter
is guilty of larceny. Clearly he is not, if the mistake were
not fundamental.
(5) To this discussion of the effect of an owner's consent
in giving a " colour of right " and so preventing a taking from
being larcenous, we may add that where the taking is by
consent of the owner's agent, or apparent agent, as where
a cook gives scraps of food to a beggar, the same principles
will apply. And a wife will usually have sufficient appear-
ance of being her husband's agent for this purposed But her
1 Sir Frederick Pollock tliinks that this doctrine had already been con-
clusively established in the earlier case of Hardman v. Booth (1 H. and C.
803) ; which, however, was not cited in Reg. v. Middleton. See Pollock and
Wright on Possession, p. 112.
2 Rex V. Harrison, Leach -17 (K. S. C. 27A).
K. 14
210 Larcenous intent [ch.
consent to the taking of his goods is no defence where they
are taken by her adulterer^ It may reasonably be con-
jectured that where (as may so readily happen, since the
passing of the Married Women's Property Act, 1882) property
belongs to a wife, the consent of her husband would similarly
be held to afford a sufficient "colour of right" to excuse
a taking.
§ 9. The Intent.
We have seen that an intention to deprive the other
person of the whole benefit of his title is necessary. Accord-
ingly a mere intention to take away the o^vner's possession
from him temporarily will not suffice'^; as when a schoolboy
takes out of his master's desk a " crib " wherewith to prepare
a lesson. Similarly a husband who takes his wife's diary,
merely that he may produce it as evidence against her on his
petition for a divorce, does not commit a larceny. To seize
your debtor's property wrongfully, but merely for the purpose
of inconveniencing him by detaining it until he pays your
debt, is thus no larceny but only a tort. So again, it is no
larceny for the finder of an article to refuse to deliver it up
when first asked for, if he is delaying merely in hopes of
a reward being offered'. To take a key merely for unlocking
a safe, even though it be with the object of stealing the
contents, is no larceny. And thus a boy may steal a ride
without stealing the donkey \ He does of course commit
a trespass ; but he does nothing that amounts, in the law of
tort, to a " conversion," Nor will even his turning the animal
loose, when he has finished his ride, necessarily constitute
a conversion. But if he turned it loose at some place so
remote that it would be unable to find its way back to its
1 ncg. V. Featherslom, Dcarsly 369 (K. S, C. 274),
- English and even Scotch law thus reject the Eoinan " fnitum usfis."
* Reg. V. Gardner, L. and C. 243.
•• Rex V. Crump, 1 C. and l\ 658 (K. S. C. 284); Hex v. FhiiU^s, 2 East
P. C. c. 16, s. 98.
xiii] Borroiving not a larceny 211
owner, he would usually be guilty of a conversion, and so of
a larceny. Early in Queen Victoria's reign, a slave, escap-
ing from the United States, seized upon a boat and rowed
himself out to a British man-of-war. On reaching her he
abandoned the boat. The United States government claimed
his extradition as a criminal, for the larceny of this boat.
But the law officers of the Crown advised that there was no
larceny ; as the boat was only taken for mere temporary use
fugae causa, and with no intent to deprive the owner of it
permanently ^ It may however be doubted whether this
advice was not dictated by philanthropic rather than by
juridical considerations ; a boat being much less likely than
a donkey to find its way back to its owner. The same may
be said of a bicycle or a motor-car.
It has alreadjiJieen^^eerL that, where goods are bailed,
only an act of conversion by the bailee quite inconsistent
mth the bailment can amount to an appropriation ^ Equally
miist there, in the case of all other larcenies, be an intention
to appropriate the thing in a manner wholly inconsistent
with the rightful possessor's interest in it. (But in them
such an intention may be sufficiently manifested by many
acts which it would have been quite permissible for a bailee
to do, though they show gross dishonesty in the case of any-
one who has no right to be in possession of the thing at all.)
There is no sufficient appropriation if a servant takes his
mastei's goods merely for the purpose of bringing them back
and then defrauding him by a pretence of having meanwhile
done work upon them and earned wages thereby*. And
similarly, it is no larceny for a man, who is only temporarily
in need of money, to carry off another person's overcoat and
pawn it, with a full intention of redeeming it and returning
it, and with a full likelihood of being able to carry out this
^ Forsyth's Cases and Opinions in Constitutional Law, p. 370.
' Supra, p. 191.
8 Ileg. V. Holluway, 1 Deuison 570 (Iv. S. C. 285).
14—2
212 Unprojitahle Thejh [ch.
intention. But a man must be taken to intend the natural
consequences of his conduct ; and therefore if, when he
pawned the overcoat, he liad not an immediate prospect of
vLx being able to redeem it, the mere hope and desire on his part
of restoring the coat, if he should ever become able to do so,
will not suffice to negative a larcenous intent'. An intention
of appropriation does not cease to be criminal because ^e
owner is unknown, or even quite untraceable; as when a
grave-digger steals brass fittings from very old coffins which
he disinters ^
It should be observed that the mere intention thus to
injure the owner suffices, even though the thief have no
intention to benefit himself by the theft. It thus is not
essential in English law, as it was in Roman law', that the
theft should be committed lucri causd. Accordingly where
the prisoner, in order to put difficulties in the way of the
prosecution of a friend of his, who was about to be tried for
having stolen a horse, took this horse out of its owner's
^ t^ stables and backed it down a coal-pit, it was held, by the
^ \^ ^ majority of the Court for Crown Cases Reserved, that his act
amounted to a larceny^ So again where a servant, in order
to suppress inquiries as to her character, took a letter and
destroyed it, she was convicted of a larceny of it'. Similarly
if, at the termination of a drunken fight, one of the com-
batants should, in his ill-temper, pick up the hat which his
antagonist has dropped, and fling it into a river, he Avould
commit larceny. Had he, however, flung it merely into a
field, there Avould be no evidence of any intention to deprive
the owner of it permanently.
There is, however, one exceptional case in which a thief's
intention merely to deprive the ov^naer of his ownership, with-
out any intention of also benefiting himself by his theft,
1 Reg. V. Trelnleock, D. and B. 453; cf. p. 191 supra. ^ Siipra,p. 196.
^ Digest, xlvii. 2. 1. 3; cf. Sandars' uotc to Inst. iv. 1. 1.
* Rex V. Cabbage, K. and R. 292. "> Reg. v. Jones, 1 Denison 182.
xiiij Time of appropriation 213
will not suffice for larceny. For by 26 and 27 Vict. c. 103
(a statute passed in consequence of a case that excited a
momentary agitation), it has been made no longer a larceny
for servants to give to their master's animals, against his
orders, food thaL belongs to hin^; and it is, instead, made
a "petty offence, (punishable, on summary conviction, with
imprisonment for not more than three months, with or with-
out hard labour, or a fine of not more than £5).
By far the most difficult question that arises in respect of
the animus furandi is that of Time. At what moment must
the guilty intention exist, in order to render an appropria-
tion larcenous ? The answer must differ, accordingly as the
accused person's original possession was a lawful one or not.
If it were lawful, then no dishonest intention that arises only
subsequently can amount at common law to a larceny^; (but
it has, as we have seen^ been provided by a modem statute
that bailees — though their original taking of possession is of
course a lawful one — may be convicted of larceny if they,
however long after receiving possession, convert to their own
use the article bailed).
If, however, the original taking of possession were in any
way unlawful, then any subsequent determination to appro-
priate the thing will operate retrospectively, and -wall convert
that taking into a larceny. Eveji.if the original taking were
no more than a trespass {e.g., taking the Avrong umbrella by
mistake^^r borrowing a neighbour's plough for an afternoon's
work without his leave), a subsequent intent to appropriate
the thing so taken will thus relate back, and render the act a
larceiiy! Thus where the prisoner drove off amongst his own
lambs a lamb of the prosecutor's by mistake, but, after he
had discovered the error, proceeded to sell the lamb, he was
convicted of larceny ^
1 Bex V. Holloway, 5 C. and P. 525 (K. S. C. 288).
2 Supra, p. 189.
8 Beg. V. Rileij, Dearsly WJ [K. a. C. 289).
214 Aj^propriatiou hi/ Flitders [ch.
Let us apply those two principles to the very common
case of the finding of lost articles ^ If the owner has inten-
tionally abandoned all right to them, of course the finder may
appropriate them, and thereby become true owner'^ But
even where there has been no such abandonment, and conse-
quently the finder does not become owner of the thing which
he has found, he will not commit any crime by appropriating
it, unless, at the very time of the finding, he both
(i) beli^ed
(a) that the owner could be discovered, and
(yS) that that owner had not intentionally abandoned
the thing",
and also (ii) forthwith resolved, notwithstanding, to appro-
priate it.
In determining whether or not a finder has had reason-
able grounds to believe that the owner could be discovered,
it will be important to take into account the place wher^ the
thing was found, and also its own nature, and, again, the
value of any identificatory marks upon it. Thus in the case
of cheques, bills of exchange, promissory notes, and other
securities that carry the owner's name upon them, a finder
could scarcely think it impossible to trace out the owner,
even though it were in a crowded thoroughfare that he
picked up the papers. Similarly in the case of articles left
in a cab, the dri\er will generally have a clue to the o\vner
from knowing where he picked up, or set down, his pas-
sengers^ And where property has been left by a passenger
in a railway train, it has always been held to be larceny for a
servant of the railway company to appropriate it instead of
taking it to the lost-property office".
» See Pollock and Wright on Possession, pp. 171—187.
^ Supra, p. 192. =* Reg. v. Thnrhorn, 1 Denison 387 (K. S. C. 276).
* 2 East P. C. fi64. Supra, p. 186.
* Cf. lleg. V. Pierce, 6 Cox 117; contrast a mere coin found ou an open
moor, 18 Bombay 212.
xiii] Appropriation after Mistake 215
Every finder, it has " always been clearly held, has a
" special property," i.e., a right to possession ; so that he could
maintain against any stranger the old actions of trover,
detinue, or trespass*. But it must be noted that he has not
— as some bailees have — a right of possession against the
owner himself The owner remains all the while in "con-
structive possession " of the article ; and hence, if any third
person should dishonestly take it from the finder, that
person may be treated as having stolen it fi-om the owner ^
Cases of finding present, however, much less difficulty
than those of mutual error, i.e., where a Avrong article has
been both given, and accepted, in mistake for something else
which both parties believed they were dealing with. Simple
as is our twofold rule as to the time of the animus furandi,
it is not easy to apply it in these cases; because of the
difficulty of deciding which was the moment Avhen, in con-
templation of law, the technical possession shifted, and the
thing accordingly was " taken ^" When walking together in
the evening, A asks B to lend him a shilling ; and B gives
him a coin which both of them, owing to the darkness,
suppose to be a shilling. But, after they have separated,
A discovers the coin to be a sovereign; and thereupon
resolves nevertheless to spend it. When, in point of law,
did A " take " this sovereign into his possession ? If it were
when the coin was actually handed to him, then (as he had
at that time no guilty intent) he " took " it innocently ; and
therefore no subsequent appropriation of it can make him
guilty of larceny. But, on the other hand, if the law does
not regard him as having taken possession of it until he
came really to know what it was, then (as he simultaneously
formed the intention of appropriating it) he will be guilty of
larceny. The whole question therefore resolves itself into
' Pollock and Wright on Possession, p. 187.
* Reg. V. Swinson, C. C. C. Sess. Pap. cxxxi. 132. Infra, p. 223.
^ See G Edw. YII. c. 32, s. 4, as to the special duty of finders of stray dogs.
216 Appropriation after Mistake [ch.
this, What mental element is necessary for legal possession ?
" Delivery and receipt," said Lord Coleridge, C.J., " are acts
into which mental intention enters. There is not in law, any
more than in common sense, a delivery and receipt, unless
the giver and receiver intend respectively to give and to
receive what is given and received." Yet there still remains
difficulty in determining what precise extent of concurrence
between their intention and the facts is necessary. Thus in
AshivelVs Case (where the circumstances which we have above
described arose) although all the fourteen judges were agreed >
in adhering to the rule that " if the original taking is inno-
cent, no subsequent appropriation can be a crime," yet seven
of them were for upholding his conviction for larceny, whilst
seven were for quashing it^ In the similar and later case of
Ueg. V. Hehir^ the Irish Court for Cro^vn Cases Reserved was
divided almost equally closely; four judges being in favour
of the conviction, but the remaining five in favour of quash-
ing it. It must be noted that in both these difficult cases
the mutual error went so far as to be a mistake about even
the species of the article, and not merely about its market-
able value. Had the error concerned value alone, it certainly
would not have prevented the possession from passing at
the moment of the physical delivery. As was said by
Madden, J.*:— "^ may deliver to B, in discharge of a trifling
obligation, an old battered copy of Shakspeare printed in
1623; both innocently believing at the time that— being
old, full of errors and misprints, and badly spelled— it would
only fetch a couple of shillings at an auction. Suppose B
then to sell it to a collector for several hundreds of pounds,
1 As was expressly announced iu the subsequent case of Ueg. v. Flowers,
L.E. 16 Q. B.D. 643.
2 L. R. 16 Q. B. D. lOD (K.S.C. 292). The rule of the Court being
'praesumitur pro uegante,' the conviction stood afiirined.
3 Irish L. R. [1895] 2 Q. B. 709 (K. S. C. 300).
•» Reg. V. llchir (K. S. C. at p. 3Ul).
xiii] Apjwojjriation after Mistcdce 217
and to appropriate the proceeds, he would not be guilty
of larceny; inasmuch as there was an intelligent delivery
of the chattel itself, though there was a mistake as to its
value." But in the view of those judges who upheld the
convictions of Ashwell and Hehir a mistake as to the species
of a coin is not a question of mere value but one of identity.
Now in contracts for the sale of chattels, any mistake of
identity undoubtedly avoids the contract ; since there is no
consensus ad idem, and therefore^ the property does not pass.
Yet even then it does not follow that legal possession may
not pass. True, there are two civil cases'^ in which it was
held that the delivery of a bureau (whether on sale or on
bailment) is not a delivery of its unknown contents {e.g., money
lying in some secret drawer) ; and accordingly that these are
not "received" by the holder until he knows of their existence.
These cases go so far as to shew that a person does not always
"receive" a thing by its merely coming into his physical
possession. But, inasmuch as the parties dealing with the
bureaux were ignorant of the very existence of the money,
these cases fall short of AshwelVs Case, where both parties
quite knew that it was with a coin that they were dealing.
We therefore can only say that if a chattel is given and
received "intelligently," the possession will certainly pass;
and beyond this, we must not go. For it is not yet possible
to lay down authoritatively what exactly it is that must be
correctly understood by the parties^.
1 Baffles V. Wichelhavs, 2 Hurlstone and Coltman 906.
2 Cartwright v. Green, 8 Vesey 405 ; Merry v. Green, 7 M. and W. 623.
^ In Reg. v. Ashwell those who maintained that knowledge of the true
nature of the thing was essential also held that the taker had at first merely
an excusable "detention " ; and accordingly, if he had paid away the coin before
discovering its nature, he would have been protected from any claim by the
owner for its proper value. But an intermediate view has since been
suggested by Mr Justice Wright (Possession, p. 210; cf. p. 105), viz., that
the mistake did not thus invalidate the acceptance, but that it did invalidate
the delivery ; so that, though a new (and an excusable) possession did arise,
it was a trespassory one, and accordingly the subsequent animus fiirandi
related back and made the taker guilty of larceny.
218 Grand Larceny [ch.
Wliere the mutual mistake relates to the person for whom
a letter is intended, it has more than once been held^ that if
a postman mis-delivers a letter, and then the recipient, on
opening it and finding it not to be meant for him, neverthe-
less appropriates some article which was enclosed in it, he
commits no larceny. For there was no animus furandi at
the time when the letter came into his hands; and the
delivery of a letter, unlike that of a bureau, clearly is always
intended to include delivery of all its contents. Thus in
a recent case a letter addressed to a Mrs Fisher in one house
was delivered to a Mr Fish living in another ; and, on opening
it, he found that it contained a cheque. This he proceeded to
endorse (in the name of Fisher) and to cash. On an indict-
ment for stealing this cheque, he was acquitted; the court
holding that the legal " receipt " both of the letter and of the
cheque took place at the actual moment when the envelope
reached Fish, although he did not then detect the mistake of
name ^.
§ 10. The Punishment.
As regarded its punishment, larceny presented some
anomaly at common law; for, though a felony, it was not
invariably a capital offence^ A distinction was made, accord-
ing to the pecuniary value of the thing stolen. If it were
worth only twelve pence or less, the offence was merely a
" Petty " larceny ; and, although a felony, was not punishable
with death. If the thing were worth more than 12d. the
crime was a " Grand " larceny^ ; and at least as early as the
1 Rex V. MxicldoiD, Moody 160 ; Beg. v. Davies, Deaisly 640 ; sec Pollock
and Wright on Possession, p. 113, as to the authority of these cases being
still maintainable, whatever view be taken of the recent conflict of opinion
in Ileg. v. Ashwell.
2 C. C. C. Sess. Pap. cxxxi. 212. Fish might, however, have been
indicted under 7 Wm. IV. c. 36, s. 31, for the statutory misddmeanor of
" fraudulently retaining a post-letter which ought to have beta delivered to
Bome other person."
8 Supra, p. 93. ■• Cf. Kentish Eyre of a.d. 1313, p. 90.
xiii] Aggravated Larceny 219
time of Edward I. — probably indeed by the legislation of
the sLcin " Lion of Justice," Henry I.' — it became punishable
capitally. The phrases "Petty "and "Grand" have become
obsolete since the abolition in 1827 of the distinction between
them". But larceny still admits of a division into two forms ;
the Simple and the Aggravated.
SiiMpIfi l a r ceny — namely such as is merely what we
originally defined larceny to be, and is unaccompanied with
any of certain specified circumstances of aggravation — is
puni shable either w ith penal servitude for not more than
five year s or less tha.n three or with not more than two years'
imprisonment with_ or- without hard la]iour^ Tf con\dcTed
"OS an indictment, the offender cannot be fined; but upon
summaiy conviction by justices of the peace, he may (p.
435). A person convicted of simple larceny, after having
been previously convicted of any felony whatever, may be
sentenced to ten years' penal servitude ^
Aggravated larceny is of various kinds ; punishable by
various long periods of penal servitude, ranging from the
offender's life down to seven years. The circumstances by
which larceny may be aggravated are of four species.
(1) The place where it is committed ; e.g., a ship", dock*,
wharf ^ or wrecks or (if the stolen property be worth not less
than £5) a dwelling-house. The maximum punishment in
each of these five cases is fourteen years' penal servitude.
(2) The manner in which it is committed ; e.g., by steal-
ing from the person. If the property is not only taken from
the person of someone but taken from him by force, or if he
is led to give it up by being put in fear of force being used,
the otleiice obtains the name of Robbery^ But obtaining
' Pollock and Maitland, ii. 496. 2 7 ^^^ g Geo. IV. c. 29, s. 2.
» 24 and 25 Vict. c. 96, s. 4 ; 54 and 65 Vict. c. 69, s. 1. And a boy
under sixteen may be whipped.
* 24 and 25 Vict. c. 96, s. 7. ^ Ibid. s. 63. « Ibid. s. 64.
^ Six times rarer now (proportionally) tlian fifty years ago.
220 Aggravated Larceny [ch.
money from a solitary woman in a lonely place by a threat, not
to use force, but merely to accuse her of being there for evil
pui-poses, would not be robbery ; though it would, as we shall
shortly see, constitute a statutory felony \ And even actual
force, if it does not begin until after the taking, will not
make a larceny become a robbery.
The maximum punishment of these offences is again
fourteen years' penal servitude. But for robberies that are
further aggravated in certain specified ways, (as by the
robber's being armed, or having a companion, or actually com-
mitting an assault), the maximum punishment rises to penal
servitude for life'^; and the well-known Garrotters' Act, 1863*
makes it possible to add flogging, unless the offender be
a woman. Even if no article be actually taken, and so no
robbery be eflfected, the mere assault with intent to rob is
a felony, and punishable with five -years' penal servitude*;
and, similarly, demanding a thing by menaces with the
intent to steal it — though there be no assault and the
menaces do not relate to physical violence — is a felony in-
curring the same punishment ^
(3) The person by whom it is committed. For a larceny
by a clerk or servant, the maximum punishment is raised to
fourteen years' penal servitude', owing to the opportunities
of dishonesty which are necessarily placed within the reach of
all persons thus employed, and to the breach of trust which
is involved in taking adviintage of them. The discussion of
the difficult question " Who is a clerk or servant ? " may be
deferred until the subject of Embezzlement is dealt with^
(4) The subject-matter which is stolen. Thus the
larceny of cattle, or of ten shillings' worth of textile goods
' 24 and 25 Vict. c. 96, s. 45. = Ihid. s. 43.
^ 2G and 27 Vict. c. 44. The C, J. A. Act, 1914, forbids more than one
flogb'ing. •* '24 and 25 Vict. c. 96, s. 42.
5 Ibid 8. 45. « Ibid. s. 67.
7 InJ'ra, p. 2;J0.
XIII j Quasi- Larceriies 221
exposed in process of mamifactureS is punishable with penal
servitude for fourteen years, (But maliciously destroying
such textile goods is punishable with penal servitude for
life".) Again, for stealing letters from a post-office, or from
a postman, the maximum punishment is penal servitude for
life^. And yet, curiou&ly enough, a more complex and ap-
parently more heinous offence, viz., the stealing of a post-
letter by a person who is himself an employ^ of the post
office, is punishable only with seven years' penal servitude* ;
(unless the letter contained some chattel or money or
valuable security, in which case the maximum punishment
is penal servitude for life)
§ 11. Quasi-Larcenies.
In the course of the foregoing account of larceny we
have had occasion to mention various articles which, though
movable, do not come within the law of larceny. It is
important to add that by various modern statutes which are
now consolidated in the Larceny Act, 1861, it has been made
a crime to steal almost any of these*. But such thefts are
not* made " larcenies " ; and some of them are not even made
felonies, but only indictable misdemeanors or offences punish-
able on summary conviction. Hence, even where one of such
offences is made a felony, if a person indicted for it were to
be convicted of larceny, the conviction would be bad. Yet
such thefts are construed by all the other common law rules
about larceny, e.g., rules as to what will constitute a taking
or a carrying away, or an intent to steal. It may conse-
quently be convenient if, for want of any recognised name,
we call them " Quasi-Larcenies."
1 24 and 25 Vict. c. 96, s. 02. -' 24 and 25 Vict. c. 97, s, 14.
3 1 Vict. c. 36, s. 28.
'' Ibid. s. 26. This lessening of punishment was perhaps due to the
influence of the ancient rule that mere embezzlement was no crime.
* See Stephen, Dig. Cr. Laic, Arts. 347 — 354,
<'• Sep 7 C. and P. 667 /(. ; cf. 8 C. and P. 294. The headings adopted in
the Larceny Act, 1861, suggest that the draftsman was not clear about this
222 Restitution after theft [ch.
The cases of hares, and of fish, have already been men-
tioned. We may add some still more common instances.
(1) The theft of any valuable security^ is a felony, and
punishable in the same maimer as if the thief had stolen
a chattel of like value.
(2) To steal trees of the value of £1' or more, if growing
in a pleasure ground, or to steal any fixtures^ or title-deeds*,
is a felony punishable (like simple larceny), with five years*
penal servitude.
(3) To steal wild deer in inclosed land, and to steal
mineral ore*, are felonies, but punishable with no higher
penalty than two years' imprisonment, with or without hard
labour.
(4) And it is a petty offence punishable, on summary
conviction, with (for a first commission of the crime) six
months' imprisonment with or without hard labour, to steal
any plant, fruit or other vegetable production growing in
a garden', or to steal a dog^, or indeed to steal any bird, beast
or other animal which has been ordinarily kept in confine-
ment {e.g., a canary) or for any domestic pui-pose {e.g., a cat)
and is not larcenable at common law^
§ 12. Restitution of Possession.
The only remaining topic to be considered in connexion with
larceny, is that of the Restitution of the stolen property. The
thief, as we have said, aims at depriving the true owner of all
the benefits of his ownership. But of the ownership itself he
cannot deprive him. It is important for the student to avoid
the misapprehensions on this point Avhich are apt to arise
from the ambiguity of the word " p ropert y." Th at ter m may
mean** either the physical object which is owned {e.g., "This
1 24 and 25 Vict. c. 96, 8. 27. ^ m^^ g 32. 3 j^,,;^ g. 31
* Ibid. 8. 28. '^ I.e. from the realty. Ibid. a. 13, and s. 38.
» Ibid. s. 36. 7 Ibid. 8. 18. 8 m^i^ g 21.
* Austin's Jurisprudence, Lect. xlvh.
xiii] Restitution after theft 223
umbrella is part of my property "), or the legal right which
the^wner has over it {e.g., " The finder of a lost umbrella
acquires a special property in it "). It is only in the former
sense that we can ever speak of " lost property " or of " stolen
property." For property in the second sense {i.e., the in-
tangible right of ownership) cannot be stolen or mislaid. A
theft, then, leaves unaltered the ownership in the goods stolen^;
so that the owner is still entitled to seize upon the thing, or
to bring a civil action to recover it from the thief There is
an apparent exception to this where the thief has gone on to
destroy the thing, or even to irrecoverably alter its essence
by making an entirely new kind of thing out of it. In the
latter case, as when A takes B's barley and makes it into
malt, or ^'s planks and builds a summer-house with them, he
acquires title, by Specificatio', in the new thing thus created.
For, just as if A had burned the planks, or had fed pigs with
the barley, ^'s ownership is utterly gone^; and, consequently,
his civil remedy is an action for damages alone. Yet even
here there is no real exception to the principle we laid down.
For it was not by the theft, but by further conduct, posterior
to the theft, that B'q ownership was extinguished*.
1 It is usually said that even the possession remains, constructively, in
the owner (1 Hale P. C. 507) ; but see Pollock and Wright, p. 157 as to
whether this should not be understood only as the right to possession,
2 See Justinian, Inst. ii. 1. 25—29. ^ Y. B. 5 Hen. VH. fo. 15, pi. 6.
* If ^ had dealt with the materials in a less trenchant manner, so that
the law would regard their identity as still continuing and as being still
traceable — as where leather is made into shoes, cloth into a dress, or a log
into planks {Betts v. Lee, 5 Johnson, New Yk. 348)— ownership would not
have been changed; and B might lawfully have seized the whole of the
manufactured product.
Indeed, ^'s misconduct will sometimes have even the result of actually
enriching B. For if, by a Confiisio, A mingles B'a goods with his own, and
not in a mere separable combination (like a heap of chairs) but so as to
become mixed uudistinguishably (as in a heap of corn or a stack of hay), then
the law confers upon B the ownership of the whole mass. B therefore
becomes entitled to carry off even that part which, before the theft, did not
belong to him at all (Popham 38, Cro. Jac. 366). yimilarly, in Accessio, if
224 Sales hy a tldef [ch.
Since a thief does not become owner, he cannot confer
ownership upon anyone else ; for non dat qui non Iiabet
Hence the original o^vner may sue the thief, or anyone to
whom the thief has given or sold the stolen article, in a civil
action to recover it or its value. Moreover, to save o^vners
the trouble and expense of this fresh litigation, it has been
enacted that an order for restitution^ of stolen property may
be made by the Criminal Court (even though it be a court
of mere summary jurisdiction) before which any person is
convicted under the Larceny Act, 1861, of larceny (whether
simple or aggravated) or embezzlement or theft in any
form, or even false pretences. But it can only cover such
stolen property as has been mentioned in the indictment and
has been produced and identified at the trial.
But it must now be added that upon this general
principle, Non dat qui non hahet, the common law soon
engrafted two exceptions, which the necessities of trade had
shewn to be indispensable for the security of purchasers ^
One depends upon a peculiarity in the stolen property itself;
the other upon a peculiarity in the place where the purchaser
buys it. A man who, in all ignorance of the theft, gives the
thief valuable consideration in exchange for the stolen
property, may, in spite of its having been stolen, acquire
a good title to it, if either (i) this stolen property consisted of
money or of a negotiable security, or if (ii) it was transferred
to him in a " market overt."
A take B'& dressing-gown and embroider it with his own thread, B, as owner
of the "principal," can retake the garment and, along with it, tlie
"accessory" embroidery (1 Hale P.O. 513), Nor does the English law
require him in any of these cases to pay any compensation for the advantage
he obtains; though the Eoman did.
It should be added, however, that in those cases of Confusio where the
commingled articles are identical not only in kind but even in mere quality
and value, it is doubtful whether the general rule would not be modihed, by
making A and B joint owners of the total mass (see 15 Vesey 442).
1 24 and 25 Vict. c. 90, a. 100.
« Williams' Personal rrupeny, Part iv. p. 518.
xiii] MarTcet overt 225
(i) To secure the free circulation of current coin, the
law treats as indefeasible the title to money which has been
paid away for value to an innocent recipient ; and this, even
though the particular coins may be still identifiable. Yet
even money can be claimed back by its original owner from
a beggar to whom the thief has generously flung it ; or trom
a companion to whom he has paid it in discharge of a bet ;
or, again, from shopkeepers who have sold goods to him for it,
but in full knowledge that he had no lawful right to the coins
he was paying them\ And it has recently been held that if
the coins were dealt with, not as currency but, as chattels, the
privilege does not apply. Thus, where a stolen Jubilee £5
piece had been acquired, by an innocent purchaser for value,
as a curiosity, the original owner was held to be entitled to
recover it or its worths The distinction is perhaps to be
regretted ; as making a bond fide receiver's title depend upon
a question so uncertain, even possibly to himself, as that of
his intentions about his future treatment of the coin.
When modern commercial law introduced a paper cur-
rency, in the shape of bills of exchange and promissory notes,
the privileges of money were (under similar restrictions) con-
ferred on them. This privilege it is, which renders them not
merely " assignable " but " negotiable^"
(ii) Fairs and markets, moreover, brought together men
from places so distant that, in mediaeval days, the purchaser
had little means of knowledge about the vendor he dealt
v^fith there, and consequently he needed the protection of
some legal privilege*. Hence it became settled that even
the most ordinary chattels might be effectually alienated by
a mere t hief, if he sold them for value to a bond fide pur-
1 Williams' Personal Property, Tart iv. p. 519. Australian courts
(12 Commonwealth 105) make the owner ijrove the defect in payee's title.
- Moss V. Hancock, L. R. [1899] 2 Q. B. 110.
3 Anson on Contracts, Part in. ch. ii. § 1.
■» Cf. Pollock and Maitland, ii. 151, 161.
K. 15
226 Restitntion [ch.
chaser on a market day, in such a place as was a lawfully
established market for the particular kind of goods concerned
— e.g., cattle, or corn, or cloth. And the publicity and rarity
of the privileged occasions made this exceptional rule work
comparatively little injury in the way of encouraging thieves.
But modem facilities of intercourse have lessened the need
for this protection ; and, accordingly, modem legislation has
restricted its completeness. For now, even when the original
ownership has been divested by a sale in market overt, it
will be revested in the old proprietor if the thief, or guilty
receiver, be convicted of the stealing or receiving* ; a rule
intended to stimulate owners to activity in prosecuting. (The
court which convicts may itself issue an order for restitution,
and st> save the trouble of a civil action. Such an order
does not create any new right; the mere conviction has upset
the effect of the sale in market overt".) But a conviction
does not revest the ownership retrospectively. Accordingly,
though the present holder must give up the article to the old
owner, yet if the former were not the original purchaser in
market overt, the owner will have no right of action in
" trover " against that original purchaser, or against any
intermediate holders.
Formerly a conviction for almost any felony or misde-
meanor under the Larceny Act would produce this revesting.
But now by the Sale of Goods Act, 1893 ^ goods in which an
actual ownership has been obtained by false pretences do not
revest in the owner, upon a conviction of the ofifender ; still
less are intermediate sales of such goods (whether in or even
out of market overt) affected by the conviction.
Hence after a conviction for larceny (but usually not
after one for false pretences) the owner is sure to be able to-
sue for restitution, except in the case of money or a negoti-
. 1 24 and 25 Vict, c. OG, s. 100.
" Scattergood v. Sylvester, 15 Q. B. 500. Infra, p. 251.
- 56 aud 57 Vict. c. 71, s. 24.
xiii] Restitution 227
able security. And even in this excepted case, if the thief
has spent the proceeds of the theft in buying some article,
the owner of the money may seize that article, and the thief
cannot recover it from him*. Thus the owner may " follow
his money " even into the subsequently purchased goods
which represent it; for in the Larceny Act*^ the word
" property " includes not only the property originally pos-
sessed, but also any property into or for which it has been
converted or exchanged. An innocent purchaser"', against
whom a restitution order is made, may ask the court to com-
pensate him by returning him, out of any moneys that have
been taken from the prisoner on his apprehension, the
amount of the price which he had paid*.
It will be seen that the rules which we have explained do
not include any provisions for cases (1) where a thief, though
really guilty, has been acquitted, or (2) where other pro-
perty has been stolen besides the articles specified in the
indictment, or (3) where stolen property has been recovered
by the police, but the thief has not been arrested. Accord-
ingly the Police Property Act, 1897 (60 and 61 Vict. c. 30)
has given more extensive powers ; by enabling Courts of
Summary Jurisdiction to order the delivery of any property,
which has come into the possession of the police " in con-
nexion with any criminal charge," to anyone who appears to
be the owner. After six months from the date of such
an order, this person will become indefeasible owner.
1 Cattley v. Lonndes, 2 T. L. E. 136. Cf. L. E. 17 Q. B. D. at p. 601.
2 24 and 25 Vict. c. 96, s. 1. ^ 30 and 31 Vict. c. 35.
•* In the case of a Pawnbroker with whom the stolen goods have been
pledged for a small sum, the convicting court has still greater power of com-
pensation; for it may make the restitution-order conditional upon the
ouner's repaying the loan to the pawnbroker. The court will consider
whether there has been carelessness on the part either of pawnbroker or
of owner. But— except in metropolitan police-courts— there is no such
power where the loan, on the individual pledge, exceeds ten pounds.
15-2
CHAPTER XIV.
EMBEZZLEMENT.
As early as 1529 (21 Hen. VIII. c. 7) the criminal liability
of servants 1 was extended to cases in which their master had
delivered (not into their mere custody but) into their full
" legal " possession any valuable goods to be kept by them as
bailees for him. The " imbezilment " of such goods by them
was made a felony. But where goods were received by a
servant into his legal possession on his master's account, not
from that master himself but from some third person, who
wished to transfer the possession of them (whether with or
without the ownership) to the master, the statute did not
apply. In such a case the deliveror has ceased to have any
possession of the goods ; while, on the other hand, they have
not yet reached the possession of the master ; and they thus
are for the time being in the servant's own possession. There
they will continue until he either actually delivers them to
his master, or constructively does so by consenting to hold
them as a mere "custodian." Until then, he accordingly
cannot commit larceny of them. (Yet, somewhat incon-
sistently, it is held by our civil courts that this delivery to a
servant, by a stranger, gives the master such a possession as
entitles him to sue anyone for damages who commits a tres-
pass to the goods, even whilst they are still in the servant's
hands\) Accordingly if a bank cashier, on receiving money
at the counter, does not put it into the till, but pockets it
' Supra, p. 188. See Stephen, Dig. Cr. Law. Arts. 335—8.
" Pollock and Wright ou Tossessiou, 130 ; 1 Hale P. C. 668.
CH. XI v] Embezzlement 229
and uses it for his own purposes, he commits no larceny. It
had not reached the possession of the bankers ; he therefore
cannot legally be said to have " taken " it from them. Such
a doctrine exposes employers to risks so great that immedi-
ately upon its definite establishment by the case of Rex v.
Bazeley\ in 1799, Parliament took action. A statute'* was
passed, which made it felony for any servant or clerk to
embezzle money or goods thus received into his possession
for his employer, although they had not reached the employer's
0A\Ti actual possession. (The words embezzle (or imhezil) and
hezzle had been in use since at least the fourteenth century,
as meaning "to make away with," usually connoting some
degree of clandestinity',) The enactment now in force as to
this crime* provides that : —
" Whosoever, being a clerk or servant (or being employed
for the purpose, or in the capacity, of a clerk or servant)
shall fraudulently embezzle any chattel, money, or valuable
security, which shall be taken into possession by him for,
or in the name, or on the account of, his master or employer
shall be deemed to have feloniously stolen the same
from his master or employer ; although such chattel, money,
or security, was not received into the possession of such
master or employer otherwise than by the actual possession
of his clerk, servant, or other person so employed."
As he occupies a fiduciary position, he is liable to a
higher punishment than that of simple larceny. He may
be sentenced to penal servitude for any term not exceed-
ing fourteen years and not less than three years; or to be
' Leach 973 (K. S. C. 305).
2 39 Geo. III. c. 85. Stephen, Hist. Cr. Laic, in. 152.
* The derivation is uncertain. Professor Skeat suggests a connexion
with imbecile, and the idea of diminishing by a purloining ; but Dr Murray
traces it to the French besillier, to ravage. The legal use of the term is
almost exclusively limited, at the present day, to the statutory felonj
explained on this page. For its use iu a.d. 1353, see K. S. C. p. 219.
•• 24 and 2-5 Vict. c. 96, s. 68.
230 Uefinition of a Servant [ch.
imprisoned for any term not exceeding two years, with or
without hard labour, and with or without solitary confine-
ment, and — if a male under the age of sixteen years — with
or without whipping.
The crime of Embezzlement presents three points for our
consideration : — (1) the persons who can commit the offence ;
(2) the property on which it can be committed ; and (3) the
mode of commission.
(1) As to the first of these, the question, Who is a clerk
or a servant ? — the latter term here including the former —
often presents gi-eat difficulty in practice. If A is em-
ployed by B to do work for him, he is not necessarily 5's
servant, but may be merely an agent, an "independent
contractor^" He will not be a " servant " unless the agi'ee-
ment, between himself and B, puts him so completely under
5's control that he must obey all lawful orders that B may
give him in connexion with the employment^ ; i.e., B can tell
him not only what to do, but even how to do it. To ascertain
whether or not the contract between the parties did create so
complete a control, we must first inquire if its terms were
embodied in a written document. If thoy were, it will be for
the court to determine whether or not they established this
full control. But if the contract was an oral one, then it is
by the jury that the question must be determined. lu
determining it, they may have to take into consideration
a variety of points, no one of which is of itself absolutely
conclusive. Something will depend on (a) the natin-e of the
employment ; thus a commercial traveller usually is a servant,
wliilst an insurance collector or a debt collector usually is
notl Again, it is important to notice (6) the amount of time
which it was agreed should be devoted to the employment.
That A was to give the whole of his time to B is strong
» Cf. Pollock on Torts, ch. in. § 3.
2 Reg. V. Negus, L. R. 2 C. C. R. 34 (K. S. C. 306).
» As to taxicab-diivers, see6'mit/tv. G. M. C. C. Ld., L. R. [1911] A.C. 188.
xiv] What can be embezzled 231
evidence of his being a servants though it is not conclusive.
Yet, on the other hand, it is not essential ; for a true servant
may also work for himself, or even for other masters ^ He
may even have been employed by the prosecutor for merely
one solitary transaction ; and, indeed, in principle, the relation-
ship of master and servant is merely one of present fact, and ' "^ 2r
may exist where there is no contract binding the servant
to go on serving any longer than he likesl Another matter
to be taken into consideration is (c) the mode of payment.
A periodical salary or wage is some evidence of the recipient's
being a servant^; hence it is common for societies to pay
their treasurers a nominal yearly sum, such as a shilling, to
secure the protection of the law of embezzlement. Conversely,
payment by commission, or by share of profits, tends to dis-
prove the existence of any such relation as that of master and
servant. But neither fact is at all conclusive.
(2) Passing to the property concerned, we must notice
that the statute" limits the offence to the appropriation of
such articles as have been received by the prisoner "for, or in
the name, or on the account of, his master or employer." Thus
a servant can commit an embezzlement only of things that
he has received as servant. A shopman who sells such goods
as he is authorised to sell — or a workman who executes for
his master's customer, and with his master's tools, work which
he is authorised to execute and receive paj^ment for — will be
guilty of embezzlement if he appropriates the money paid by
the customer®. But a servant cannot embezzle anything
which he obtained by doing an act that was outside his
authority. Hence if a gentleman's coachman takes it on
himself to ply for hire with his master's carriage, and spends
^ Reg. V. Bailey, 12 Cox 50.
" lieg.w. Tite, L. and C. 29.
3 Pxeg. V. Foulkes, L. R. 2 C. C. R. 150 (K. S. C. 309).
•» Reg. V. Negm, loc. cit. ^ 24 and 25 Vict. c. 96, s. 68.
6 Rex V, Hoggins, R. and R. lio (K. S. C. 314).
232 What can be embezzled [ch.
in drink the coins so earnod, he does not commit embezzle-
ment of them'. Or if a woman, employed in a shop only
to act as cashier, should take it upon herself to sell ribbons
at the counter, and should appropriate the prices paid to her
for them, she will not be guilty of any embezzlement of the
money; (though she will have committed a larceny of the
ribbons themselves-). Similarly it has been held that if
a servant forges a cheque in the name of his master, and
cashes it, he does not receive the coins in his capacity of
servant, and therefore does not commit embezzlement by
making off with them'. But it would, of course, be embezzle-
ment, to appropriate money which he had obtained by cashing
any cheque that had been sent to him on his master's account ;
even though it had been made out to the prisoner himself as
payee*.
A servant, as we have already said, can only " embezzle "
what he has received for his master. It is not an embezzle-
ment, but a larceny, for him to appropriate money which he
has received from his master ; and this even though it did
not come to him from the master directly, but only through
the hands of some fellow-servant". Yet if, through the same
fellow-servant, he had received money remitted for their
master by some stranger, he can commit embezzlement of
this money ; for it had not yet reached the master's possession,
but was stopped by him whilst still on its way to the master*.
But if once he had put this money into his master's tilP, his
subsequently taking it out again and appropriating it would
be a larceny and not an embezzlement. So would the con-
duct of a person who should remove a load of straw after
1 Per Blackburn, J., in Reg. v. Cullum, L. R. 2 C. C. II. 28 (K. S. C. 311).
2 Reg. V. Wilson, 9 C. and P. 27 (K. S. C. 313).
3 Reg. V. Aitken, C. C. C. Sess. Pap. xcvii. 336 (K. S. C. 315).
* Reg. V. Gale, L. R. 2 Q. B. D. 141 (K. S. C. 31G).
» Reg. V. Murray, 1 Moody 276 (K. S. C. 318).
" Reg. V. Masters, 1 Uenison 332 (K. S. C. 319).
' Cf. Reg. V. Sulleus, 1 Moody 129 (K. S. C. 320).
xiv] Proof of appropriation 233
once he had dehvered it on his master's premises' or even
had merely put it into a cart, or a barge, that belonged to
(or was possessed by) his master.
These illustrations shew vividly how fine a line often
has to be drawn in determining whether it is a larceny or
an embezzlement that a servant has been guilty of. _The
doctrine of possession is so subtle and technical that it
frequently is hard to say for which of the two offences a
man should be indicted; and failures of justice used often to
arise in consequence. Fortunately, however, they have been
rendered rarer by a statute passed in 1851 ^ which has
removed the absolute necessity of accuracy on this point, so
far as the indictment is concerned ; by providing that if, on a
charge of larceny, the crime committed prove to have been
an embezzlement (or vice versa), the jury may convict of
the crime actually proved, instead of the crime originally
charged. But it may be hard to say which luas proved.
(3) Turning to the mode of committing the offence, we
must note that, as embezzlement is committed without any
change of possession, the fact of an appropriation is often
hard to prove. It may be shewn by absconding with the
moneys or by denials of having ever received it, or by any
realfy^vilful omission to pay it over. But the mere fact of
omission, as it may have been due to pure carelessness, does
not suffice to shew an appropriation^ Still less does the
mere fact of there being a deficiency in the servant's
accounts ; i.e., his not having actually credited to himself,
in his books, disbursements sufficient to exhaust all the cash
he has received. For he may merely have lost it by negli-
gence ; and negligence, however gross, is not a criminal
1 Reg. V. Hayward, 1 C. aud K. 518 (K. S. C. 321).
- Now replaced by 24 aud 25 Viut. c. 96, s. 72. Infra, p. 463.
» Eex V. Williams, 7 C. and P. 338 (K. S. C. 322).
* Rex V. Jones, 7 C. and P. 833 (K. S. C. 322). So, besides proving nou-
payment, you should also prove non-entry in his accounts.
234 False accounting [ch.
dishonesty^ And even if he has spent it, there is nothing
to shew that he did not spend it on his master's account.
Moreover, when it is proved that there must have been some
really dishonest appropriation, this proof will not be enough
so long as the theft is only shewn to have produced a
"general deficiency." There must further be evidence that
the particular amount specified in the indictment was appro-
priated, and at the particular date and place also there
specified. For otherwise the prisoner would have no means
of securing himself the protection of the plea of autrefois
convict or autrefois acquit"^, in case of his being prosecuted a
second time for this same charge.
It is easy to understand that dishonest clerks often
escape on indictments for embezzlement, because of the
difficulty of thus proving an actual appropriation ; even where
it is clear that money has been received by them, and
detained, without their making any entry or other acknow-
ledgment of the receipt. Hence in 1875, by a measure
introduced by Sir John Lubbock but commonly known as
Lqpes^_Act^.^ Jt was. made a misdemeanor, punishable with
seven years' penal servitude, for a clerk or servant " wilfully,
and with intent to defi-aud, to alter, or make a f;ilse entry^in,
or omit a material particular from, any account of his master's."
An indictment for this offence of false accounting is often
useful where a clerk to whom a customer has paid money is
suspected of stealing it, but no more can be actually proved
than that he has never credited the customer with the
amount. If, however, his books do shew correctly the sum
which he ought to have in hand, the fact of his not really
having that amount, ready to hand over, does not render
the entry a " false " one within this statute.
' Ldnier v. Rex, 24 Cox 53. 2 Infra, p. 469.
3 38 Vict. c. 21. * E.g., even tilting a taxinieter-fla^
xiv] Appropriation hy Agents 235
Servants and clerks are far from being the only persons
whose fiduciary position gives them opportunities for com-
mitting acts of dishonesty which, in the common law, were
treated as deprived of legal criminality by those very cir-
cumstances of trust which aggravate their moral heinousness.
We have already alluded^ to the case of an employer's being
defrauded by some agent whose engagement has not placed
him under such a control as would render him a " servant,"
and so bring him mthin the law of embezzlement. And a
trustee, since he has possession and even legal ownership of
the things he holds for his cestui que trust, could not by
appropriating them commit any offence against the common
law. It altogether ignored the existence of such trusts, even
for civil purposes ; not regarding a breach of trust as creating
any debt, still less any crime. A dishonest trustee thus
enjoyed in penal law an immunity as unreasonable as the
excessive civil responsibility which equity, on the other hand,
imposes upon even honest trustees if they prove complaisant
or unbusinesslike ^
Happily, in recent times, a much-needed extension of the
criminal law has been effected in these respects. Thus, as
to appropriation by agents, some limited and tentative pro-
visions^ were initiated so far back as 1811 ; and have recently
been expanded into a comprehensive form in the_Larceny
Act, 1901*. This statute renders it a misdemeanor for any
personTraudulently to convert to his own use, or to that of any
other person, any property — or the proceeds of any property —
which he (whether solely or jointly with some other person)
has been entrusted with : —
either (a) for, or on account of, any other person ;
or (6) in order that it, or any part of it, or any pro-
ceeds of it, may be retained by him in safe custody, or
' Supra, p. 230. ^ Williams' Personal Property, Part m. ch. i.
3 Subsequently embodied in 24 and 25 Vict. c. 96, ss. 75 — 79.
* 1 Edw. VII. c. 10. It covers realty as well as personalty.
236 Appropriation hy Trustees [ch.
may be applied or paid or delivered by liim for any
purpose or to any person ^
Fraud is necessary ; and pure carelessness, however gross,
will not render an agent indictable. The maximum punish-
ment is higher than that of simple larceny ; being penal
servitude for seven years. This enactment does not extend
to mortgages of either real or personal property. Nor does it
extend to "trustees on any express trust created by a deed
or will." Most equitable owners must thus rely on th§ Act
of 1861 ^ Under this a trustee of either real or persona]
property is punishable wdth seven years' penal servitude, if,
with intent to defraud, he converts or appropriates to any
other purpose than that of his trust, any property which has
been given to him on an express trust created in writing^.
This extension of the criminal law to the protection of mere
equitable ownership was an experiment so novel that it was
restricted closely. Thus no trustee under a deed or will*
can be thus prosecuted without the leave of the Attorney-
general. And if proceedings have already been begun in any
civil court in respect of the breach of trust, the person who
has taken them must obtain the leave of that court before
beginning a criminal prosecution. Moreover, by a clause
added by Lord Cairns ''j the criminal liability thus created is
not to prejudice any agreement which the trustee may have
entered into for making good the loss caused by his dis-
honesty. So that even a bargain by him to make restitution
in consideration of not being prosecuted, would appear to be
rendered enforceable, in spite of the ordinary rules as to con-
tracts that are against public policy^ and unindictable, in
1 E.g., a lodger is sent by his landlady with £1 to pay her rates ; or a
stockbroker receives from a client £100 to buy Consols with.
- 24 and 25 Vict. c. 96, s. 80.
3 Implied trusts, and Oral trusts, are thus excluded ; as vague.
< Hex V. Davies, L. R. [1913] 1 K. B. 57"). 5 g, qG.
'' Anson on Contract, I'art ii. ch. v. s. 1, ii a.
xiv] The forms of Theft 237
spite of the ordinary rule against " compounding " a misde-
meanor ^ A further remarkable clause ^ applying not only
to trustees but also to agents and the other similar fiduciary
misdemeanants, exempts them from criminal prosecution if
the misdemeanor was first disclosed by them in the course
of civil proceedings instituted against them by the person
defrauded; but removes their privilege as to refusing to
incriminate themselves when examined in these civil pro-
ceedings.
The Forms of Theft.
It may be convenient, at this stage, to summarise the
chief results which, step by step, we have arrived at, in
discussing the historical development of the English law of
theft. Four leading classes of cases must be carefully dis-
tinguished : —
1. The owner gives up no rights at all ; and the article
is taken entirely without his consent. This clearly is
Larceny.
2. The o^vner gives up physical possession {i.e., "custody"),
though retaining legal possession; and then the custodian
appropriates. This is Larceny, even at common law.
3. The owner gives up both physical and legal posses-
sion ; and then the possessor appropriates. Here : —
(i) If possession were obtained animo furandi, then
the fraud vitiates the consent, and there is
a " Larceny by a trick." E.g., a plough is
borrowed with intent to steal it ; or a sovereign
is handed to a cabman, who knoius it has been
given in mistake for a shilling.
(ii) If possession were obtained bond jide, then the
subsequent appropriation is no crime at common
law.
1 Infra, p. 278. ^ 21 aud 25 Vict. c. 96, s. 85.
238 Definitions of Theft [ch.
But by statute, even if possession were obtained
bond fide, yet if it had been obtained
(a) by a clerk or servant, receiving for his master
from a third person, appropriation by him is
an Embezzlement ;
Qj) by any person who is to deliver up the specific
article, appropriation by him is a Larceny,
under statute.
(c) by an Agent who comes within the Larcen>
Act, 1901, appropriation by him is a mis-
demeanor of Fraudulent Conversion^
4. The owner gives up not only physical and legal
possession, but also ownership. This cannot be a Larccnv
(either at common law or by statute), or an Embezzlement.
But it may be the misdemeanor of an " Obtaining by false
pretences^," or of an appropriation by an Agent' or by
a Trustee^
Our account of the closely allied offences of common law
larceny, statutory larceny, " quasi-larceny," and embezzlement,
will have enabled the student to appreciate Mr Justice
Wright's criticism that " The English law of criminal mis-
appropriation has been... extended piecemeal, by fictions and
by special legislation confined to particular instances;... and
the resulting mass is at once heterogeneous and incomplete*."
The prospect of a scientific reform in this, as in various other
branches of our penal law, was, for a time, held out by the
efforts of Lord Beaconsfield's government, a generation ago,
to enact a Criminal Code". It was proposed to abandon
the term Larceny and to replace it by that of " Theft " ;
which it defined* as being — "Fraudulently, and without colour
J Supra, p. 235. " See ch. xv. =• Supra, p. 236.
■* Draft Criminal Code for Jamaica, p. 110.
» Infra, p. 513.
" See Stephen, Hist. Cr. T.mc, pp. 1G2— 8. It is instructive to compare
witli this the definitions of recent Continental codes. Italian Penal Code of
xiv] Definitions of Theft 239
of right, taking or converting to the use of any person any-
thing capable of being stolen, with intent" {inter alia) " ...to
permanently deprive the owner, or any person having any
special property or interest therein, of such thing or property
or interest." And things capable of being stolen were
made to include " all tame animals, all confined wild animals,
and all inanimate things which either are, or may be made,
movable, (except things growing out of the earth and not
worth more than a shilling)." No carrying away was to
be required ; and no change of possession ; and the very act
of rendering the thing movable might suffice to constitute
a Theft.
1890, s. 402 :— " To possess oneself of a movable thing belonging to another
person, for the purpose of deriving advantage from it, and take it away
from the place where it is, without that person's consent." German Penal
Code of 1870, s, 242 :— " To take away a movable thing which is not the
taker's own, from some other person, with the intention of illegally appro-
priating it." Still briefer, though earlier, is the French definition {Code
Penal, s. 379), " Whoever has fraudulently taken away a thing which does
not belong to him is guilty of theft."
CPTAPTER XV.
FALSE PRETENCES.
The common law, as we have seen, treated Dishonesty as
a felonious crime only when it took the form of an actual
wrong to the owner's Possession ^ But it also regarded
dishonesty as sufficiently affecting the public to be made
criminal, though only in the degree of misdemeanor, when-
ever an owner had been induced to alienate his goods or
money to some knave by any device that was calculated to
deceive, not merely him, but people in general. The pro-
tection of public trade seemed to require this restraint upon
the use of false weights or measures or hall-marks. But it
was no offence to get a man to pay money, or give away
property, by telling him some lie in a merely private trans-
action. Where A got money from B by pretending that C
had sent him for it, Lord Holt grimly asked, " Shall we indict
a man for making a fool of another?" and bade the prose-
cutor to have recourse to a civil action^ But a statutory
provision for the punishment of mere private cheating was
made in 1757, and is followed in the Larceny Act of 1861*;
so that it is now an indictable misdemeanor to " obtain from
any other person by any false pretence any chattel, money,
or valuable security, with intent to defraud."
Under this enactment five points arise for our con-
sideration : — (1) the Right obtained, (2) the Thing which is
J Supra, pp. 182-3.
- Ih'p. V. Jones, 1 Salk. 379; 2 Ld. Raymond 1013.
' 24 and 25 Vict. c. 96, 8. 88.
CH. xv] Voidable alienations 241
the subject-matter of that right, (3) tlie Pretence, (4) its
Effect, and (5) the Intent.
(1) The Right. The ofifence before ns is committed
wh en person S- gct^^oods dishonestly by fraudulently inducing
the_ owner to make over to theui at once the immediate
o wnership^ in those gomls. W'e have already seen that for
such persons tlie law of laicuny provides no punishment.
Sometimes, however, where frauds of this kind are attempted,
they do unexpectedly turn out to be larcenies, because of
some legal difficulty which has prevented the ownership from
actually passing.
One such difficulty may be that the deceit, which has
been practised, related to facts so fundamental to the in-
tended alienation that error as to them will render the whole
transaction null and void, and thus prevent the supposed
alienation from effecting any transfer of ownership at all.
A, for instance, may obtain goods from B by personating G;
or A may purchase goods from B on his own account, but
with a secret intention never to pay for them^ In such
cases the carrying-off of the goods will, as we have seen,
amount to "larceny by a tricks" But wherever the aliena-
tion is not thus utterly void from the outset, there will be no
larceny. And, in the great majority of cases of fraudulent
obtaining, the fraud does not relate to a fundamental fact,
but to some merely extraneous one, errors as to which do not
render the transaction void but only voidable ^ Ownership
therefore passes in such cases, notwithstanding the false pre-
tence ; though the defrauded owner has a right to rescind
the alienation and to cause the property to revest in him.
^ Or even a mere power to pass ownership. Whitehorn Brothers v,
Davison, L. R. [1911] 1 K. B. 463.
2 Hex V. Gilbert, 1 Moody 185 (K. S. C. 353). » Supra, p. 206.
* Anson on Contract, Part ri. ch. iv. s. 1, contrasted with Part ii. cb. iv.
B. 3; Pollock on Contract, ch. x.pt. in.; Pollock and Wright on Possession,
p. 100.
K. 16
242 Obtainwg from Agents [ch.
Yet, even should he do so, tliis revesting will have no retro-
spective operation on the thief's criminal liability ; and thus
will not convert his conduct into a larcenous taking^ More-
over even this right to rescind and revest will be extinguished
if, before it has been exercised, the thief should dispose of
the goods for valuable consideration to some innocent pur-
chaser ; and, against such a purchaser, even an ultimate con-
viction of the ofifender will not suffice to revive the original
owner's rights'.
Another cause which may similarly defeat an intended
alienation, and prevent ownership from passing, is that the
person who attempted to alienate had not the legal power to
do so. Thus if a man tries to obtain the property in- goods
by a fraud practised, not upon the o%vner himself, but upon
his servant, and if that servant had only a limited authority
to dispose of these goods, and one too limited to cover the
transaction in question, then the cai-rying them ofif will be
a larceny*. Hence, as a postmaster receives from London
specific instructions for all "money orders" (unlike mere
" postal orders ") which he ought to cash, the money he pays
on a forged money order is taken from him by a larceny.
But, on the other hand, money paid by him on a forged
" postal order," (with regard to which he receives no specific
instructions), would become the property of the payee,
and accordingly would be obtained by false pretences, and
not by a larceny. (The general extent of the authority of
Post Office servants to part with the moneys of the Post-
master-General has not yet been precisely settled ; e.g., it is
uncertain whether it covers payments made by them by
spontaneous mistake*,) And as every bank cashier has a full
and general authority to part with the money entrusted to
1 Per Will?, J., in Beg. v. Clarence, 22 Q. B. D. at p. 27.
« Sale of Goods Act, 1893 (56 and 57 Vict. c. 71, s. 24 (2)).
» Reg. V. Stewart, 1 Cox 174.
« Iteg. V. MhhUeton, L. R. 2 C. C. R. 38 (K. S. C. 266).
xv] Temporary obtainiiu/s 243
him by his employer for the purposes of business, it follows
that any coins paid by him in cashing a forged cheque be-
come the property of the recipient. The latter, therefore,
obtains them by false pretences and does not commit larceny^
It is not essential that the right obtained should be
that of a full ownership. It appears to be sufficient for this
offence, consequently, to deprive a man of his whole- inde-
feasible interest in the thing, even though he be no more
than a bailee. Hence the OAvner himself may be convicted
of obtaining the thing by false pretences from his bailee I
But it does not seem that the offence can be committed
without obtaining actual possession, and not merely a bare
right as in the case of fraudulently obtaining mere title to
a cargo that is at sea. There is no case, or even dictum, for
allowing an indictment for obtaining by false pretences when
there has been no delivery. But so long as there has been
a delivery, it is not necessary that it should have been made
to the same person who made the false pretence. For s. 89
of the Larceny Act, 1861, provides that there is a sufficient
" obtaining " even if the prisoner's false pretence caused the
thing to be delivered to some other person than himself.
But in false pretences, just as in larceny, there must be
ail intention to deprive the injured person of his whole
interest, and not merely of the temporary use of his interest.
Thus to obtain by fraud the loan of a horse for a day's ride
does not come within the statute ^ Objection has conse-
quently been taken to the ruling in Reg. v. Boulton'^ — where
a conviction was upheld for obtaining a railway ticket by false
pretences — on the ground that the possession and property
of the railway ticket are to be restored to the Company when
the journey is over, and therefore that a frill criminal " obtain -
' Reg. V. Frince, L. 11. 1 U. U. R. 150. 2 cf. p. 197 su^ra.
^ Reg. V. Martin, 8 Ad. and E. at pp. 185, 488. Cf. Dearsly 145.
* Reg. V. Kilham, L, K. 1 C. C. 14. 2Gi (K. t>. G. 243). Cf. p. 210 supra.
» 1 Den. 508; followed in Rex v. Chapman, 4 Cr. A pp. R. 276.
10 — 2
244 Obtaining mere Services [qu.
ing" of the property in it never took place. But surely a
person who, on abandoning his idea of making the journey,
destroys his ticket, does not infringe any right of the railway
company. If so, their only right must be a merely contrac-
tual one, against him, (viz., a right that, if he should actually
take the journey, he will give up the ticket to them) ; and
not a right of ownership in the ticket itself.
(2) The Thing. What we have just said suffices to shew
that the legal distinction between larceny and a mere
obtaining by false pretences is often hard to trace. The two
offences being so closely akin, it is not surprising that the
technicalities of the older one — as, for instance, with regard
to the subject-matters capable of being stolen — should have
affected even the more modern of the two. Thus an indict-
ment for obtaining by false pretences Avill not lie unless the
thing obtained were either (1) a valuable security, or else
(2) such a chattel as was a subject of larceny at common law\
Thus the offence does not include a fraudulent obtaining of
real property, or of anything " savouring " of the realty"'', or
of those chattels which are considered as of insufficient value
for larceny {e.g., dogs) ; yet a railway ticket, in spite of its
being evidence of a mere chose in action (supra, p. 202),
may be the subject of an indictment for obtaining it by
false pretences'. So, again, if what was obtained by the
false pretence were not a Thing at all, but only an Act of
service, the offence is not committed ; as where a man secures
a ride in a train by saying, " I am a season ticket holder."
(It may, however, be noted that under the London Cab Act,
1896*, it is a specific petty ofience, punishable on summary
conviction, to hire a cab in London Avith intent to avoid
payment of the lawful fare. And the Larceny Act, 1861,
1 Supra, pp. 197-203.
» Reg. V. Pinchbeck, C. C. C. Sess. Pap. cxxiii. 205 (K. S. C. 355);
Reg. V. Robinson, Bell 35 (K. S. C. 357).
8 Rig. V. Boullon, mqjra, p. 243 n. * 59 and 60 Vict. c. 27.
xv] Pretences as to the Future 245
by s. 90, makes it an indictable misdemeanor to procure by
false pretences the execution of any valuable security.)
(3) The Pretence. The false representation may be made
expressly in words, either written or spoken ; but it is quite
sufficient if it can be even implied from them, or from mere
silent conduct. But the words or the conduct must be fairly
capable of conveying the false meaning, and must have been
intended to convey it. For a mere huckster to give an order
for goods to an extent so great that only a man in a very large
Avay of business could require them, may thus amount to a
false pretence 1; and so may the packing up of goods made by
yourself in wrappers closely resembling those used by some
well-known firm of manufacturers'''. And again, without any
deceptive words at all, the mere act of wearing a cap and
gown, in a Univei'sity town, may be enough to constitute a
representation that you are a member of its University*.
Similarly, quite independently of the use of any words assert-
ing the genuineness of the article, there would be a false
representation in passing a note of a wound-up bank; or,
again, in offering for sale a fowl's body with a turkey's head
sewn on to it, or a sparrow painted as a canary, (such as an
eminent judge described to be a "gaol-bird").
The pretence ninst bo made with knowledge of its falsity ;
not by^^huiiL'sD mibLakL-. Aiul it must relate lu tjouie fact
that is either past or present. A statement purely affecting
the future will not suffice. For all future events are obvi-
ously matters of conjecture, upou which every person must
exercise his own judgment. If the buyer says, "Send me
the meat and I will pay to-morrow," it is for the butcher to
determine whether he will part with the meat on the strength
of this promise. If, therefore, the customer flxils to fulfil his
1 Reg. V. Cooper, L. R. 2 Q. B. D. 510 (K. S. C. 333).
* Reg. V. Smith, D. aud B. 566 (K. S. C. 186), per rullock, C.B.
« Rex V. Barnard, 7 C. and P. 784 {K. S. C. 333).
246 Implied Pretences [ch.
promise, the butcher cannot prosecute him for obtaining the
meat by false pretences, but can only sue him in a civil
action to recover the price of it. In like manner, to borrow
money under the pretence that you will use it in paying
your rent, is not an obtaining by such a felse pretence as will
come within the statute^ This distinction between Present
and Future is, however, now being undermined by the prin-
ciple that representations, which do not expressly mention
anything but the future, may nevertheless imply a represen-
tation about the present; — viz., a representation that the
existing state of affairs is such that, in the ordinary course
of events, the future occun-ence mentioned will take place
Thus it has been held that sending the half of a bank-note,
along with an order for goods, is not merely a promise that
on a subsequent occasion the other half shall be sent, but
implies also a representation that at the present time the
sender already possesses that other half^ Similarly the
familiar act of drawing a cheque — a document which on the
face of it is only a command of a future act — is held' to
imply at least three statements about the present: —
(1) That the drawer has an account with that bank;
(2) That he has authority to draw on it for that
amount ;
(3) That the cheque, as drawn, is a valid order for
the payment of that amount ; {i.e., that the present state
of affairs is such that, in the ordinary course of events, the
cheque will on its future presentment be duly honoured).
It may be well to point out, however, that it does not
imply any representation that the drawer now has money in
this bank to the amount drawn for ; inasmuch as it is quite
» Reg. V. Lee, L. and C. 309 (K. S, C. 323).
= Reg. V, Gileg, L. and C. 502 ; Reg. v. Murphy, It. Bep. 10 G. L. 608
(K. S. C. 338).
« Reg. V. Ilazeltoit, L. li. 2 C. (J. H. 134 (K. S. C. 330).
xv] Obtaining Credit 247
in the ordinary course of business that he may have authority
to overdraw, or that he may intend to pay in (before the
cheque can be presented) sufficient money to meet it. These
doctrines apply not only to ordinary cheques, which are
payable forthwith, but even to post-dated ones'.
It has sometimes been suorgested that when a man orders
a meal at a restaurant he impliedly makes a representation
as to his present ability, and present intention, to pay for it.
But to treat every order for goods as if it impliedly con-
tained the words, " I can pay," would render it dangerously
easy for disappointed creditors to call in the law of False
Pretences to the assistance of the law of Debt. Accordingly
it is now settled'^ that the penniless man, who orders and eats
a meal at a restaurant, does not thereby make any implied
false statement about the present. But though his deceit
relates only to the future, it is enough to constitute an
"obtaining credit by fraud," which is a specific statutory
misdemeanor under the Debtors Act, 1869^; although the
credit given by the innkeeper was to last only until the end
of the meal.
Where it is by the joint operation of s everal represent a-^
tions, that a person has been induced to part with property, |
the offence may be committed although some of them were
mere promises about the future, if even one of them was a
representation of a present fact. In other words, it is suffi-
cient that the false representation of present fact was essen-
tial to the transaction ; even though it alone would not have
been enough to induce the owner to part with his property.
Thus if a married man represents himself as unmarried, (^
and proposes marriage to a woman, and thereupon obtains /
1 Bex V. Parker, 7 C. and P. 823, 2 Moody 1.
2 Reg. V. Jones, L. R. [1898] 1 Q. B. 119.
3 32 and 33 Vict. c. 62, s. 13. The maximum punishment is only a year's
imprisonment, with hard labour. This enactment is useful where there is
either (1) a "fraud" which is not a "false pretence," e.g. by mere reticence,
or (2) "credit" not on alienation, but on a hiring or for labour.
248 Facts and Opinions [en.
money from her for the pretended purpose of furnishing their'
house, he may be convicted of obtaining this money by false
pretences*.
Again, even in the case of statements which clearly relate
only to the present, it is often hard to say whether they are
statements aa to actual facts or merely as to matters of
opinion ; as in the case of a vendor's exaggerated eulogies of
his wares. For in English law, as in Roman ^ the license
of trade has established as to "dealers' talk" the lax rule
that " Simplex commendatio non obligat." In all bargaining
there is usually a conflict between the two parties, in com-
mercial skill and general experience; and it would be perilous
to employ the criminal law to regulate this conflict. For a
man to represent himself as having " a good business," when '
he carries on no business at ail, is clearly a false statement
of a definite Fact^ But a similar representation made by a
man who has a business, however poor a one, will generally
be a mere matter of Opinion*. A seller's misrepresentation
of the weight of a sack of corn will concern mere matter of
opinion, if the sale is for a lump sum ; but will concern a
fact so fundamental as to render it indictable, if the sale
is by weight'. In the same way, to falsely represent an
article as being silver* — or to represent a chain as being of
15 carat gold, when it is really only 6 carat' — is a false pre-
tence of fact; the real article being different in substance
from the pretended article. Yet to represent plated spoons
as being "equal to Elkington's A," (or even as having as
much silver on them as Elkington's A), has been held to be
only exaggerated praise, a mere puffing; inasmuch as the
1 Reg. V. Jennison, L. and C. 157 (K. S. C. 324).
2 Justinian's Digest, iv. 3. 37 ; cf. Benjamin on Sales, iii. ii. 1, and
IV. ii. 1. 1. 3 jigg^ V. Crab, 11 Cox 85.
* Reg. V. Williamson, 11 Cox 328. But contrast Reg. v. Cooper, L. B.
•2 Q. B. D. 510 (K. S. C. 333). « Reg. v. Ridgway, 3 F. and F. 858.
6 Reg. V. Ball, C. and M. 2-19.
" Reg. V. Ardley, L. R. 1 C. C. Ii. 3Ui (K. b. 0. 331).
xv] Unsuccessful i)retences 249
person deceived did get plated spoons, dififering only in value
from what he had been led to expect'.
It seems'* that even jn ere states of mind are to be regarded
as "Facts" within the definition of the offence; so that an in-
dictnioiit will lie against a man for obtaining goods by a false
statement of his present intention to do a given future act.
In Reg. v. Gordon^, Mr Justice Wills inclined to think that
such a merely mental fact would suffice. And on this side
may be urged the celebrated dictum of Lord Bowen that
"the state of a man's mind is just as much a fact as the \^
state of his digestion^" But if such expressions of Intention
are to be recognised as sufficient pretences, it will be hard
indeed to distinguish between them and mere Promises,
which (as we have seen") are not sufficient.
(4) The Effect. T he ch ange of ownership must not
morely have been preceded by a false pretence, but also
have been actually caused by it, wholly or at any rate® in
part. Hence when a shopkeeper is actually delivering goods
on credit to A, it is no offence for A then to say falsely, "I
am the Earl of Z^." Similarly, if a false representation had
been actually made by the prisoner to the prosecutor's agents,
but the agents never communicated it to the principal before
he parted with his goods, (so that it was not by it that he was
led to act), there must be an acquittal. The same principle
applies wherever the pretence did not in fact deceive the
person to whom it was made ; as in the frequent instances
where, on the advice of the police, the recipients of a begging
letter send money to the writer of it, in order to expose him.
(In such cases, however, the prisoner may nevertheless be
1 Ri'g. V. Bryan, D. and B. 265 (K. S, C. 328).
- Bex V. Bancroft, 3 Cr. App. E. 16-
3 L. K. 23 Q. B. D. 354 (K. S. C. 326). Cf. the remarks of Hawkins, J.,
in the similar case of Reg. v. Pochett {The Times, May 14 and 18, 1896).
■* Edgingtonv. Fitzmaurice, L. E. 29 Ch. D. 483; cf. Angus v. Clifford,
L. E. [1891] 2 Ch. D. at p. 470. » Supra, p. 245. 6 p. and B. 578.
7 Cf. Reg. V. Martin, 1 F. and F, 501 (K. S. C. 339).
\
250 Remote pretences [ch.
guilty of an Attempt to obtain by false pretences — which is
a common law misdemeanor.) If, however, the person has in
fact been actuated^ by the false pretence, it does not matter
how credulous or how careless he may have been in accepting
it; as where one professed to have the magical power of
bringing back a missing person "over hedges and ditches^"
Even, however, where there is a causal connexion between
the pretence and the obtaining, the law will refuse to take
cognisance of this causation if it be too remote '. But mere
lapse of time does not necessarily amount to remoteness.
And if_the delivery of the article obtained was the object and
aim of the false pretence, there will be a sufficiently direct
connexion between the pretence and the obtaining, even
though what was immediately obtained by the false pretence
was not the delivery but merely a contract, the ultimate execu-
tion of which produced the delivery^ A nd this, eventhough
thejthing delivered was not in existence at the time of the
prfitencc". In the case of races, if a competitor., by making
a false statement of his previous performances, obtain an
undue allowance in a handicap, and thereby win a prize,
such a false pretence will not be too remote from the obtain-
ing of the prize to be indictable®. Had he not won the
prize, the running the race would still have been indictable
as an attempt to obtain the prize by false pretences; but
merely entering for the race without running would probably
have been too remote an act to constitute even an attempt,
(5) The Intent. It is not enough that the pretence did
obtain the thing, it mjist have been made with the purpose
1 Actuation must always be proved by direct evidence, not by mere
inference from business-ways ; Rex v. Dargiie, 6 Cr. App. E. 261.
- Reg. V. Giles, L. and C. 502.
3 Cf. supra, p. 80. * Rex v. Moreton, 8 Cr. App. B. 214.
5 Rcfj. v. Martin, L. R. 1 C. C. R. 56 (K. S. C. 344).
6 liaj. V. Butlon, L. K. [I'JOOJ 2 Q. B. 597 (K. S. C. 342).
xv] Restitution Orders 251
of Defraudmg {e.g., not merely to got the thing as a joke, or
to hold it as security for a genuine debt), and with knowledge
of, ov perhaps'^ recklessness about, its falsity^
Although the offence of obtaining by false pretences is, as
we have seen, only a misdemeanor, it is punishable as severely
as petty larceny : viz., with penal servitude for not more than
five years or less than three, or imprisonment, with or without
hard labour, for not more than two years or (unlike larceny)
with a fine^ After the famous Tichborne case, an Act was
passed (37 and 38 Vict. c. 36) making false persona tion, for
the purpose of obtaining either personal or real property,
(whether the property be actually obtained or not), a felony,
punishable with penal servitude for life.
On an indictment for false pretences, a prisoner may now
be convicted — and convicted of that very misdemeanor —
even though his offence be shewn to have really constituted
a larceny; whilst on an indictment for larcenv he may be
c onvicted of false pretences ^ The subtle distinctions between
the two crimes have thus lost much of their practical im-
portance,
A restitution order^ may be had against the actual offender,
or his maid fide sub-purchaser, by any prosecutor who has
actually become again the owner, i.e., who has legally rescinded
the transfer. But the Sale of Goods Act, 1893 (56 and 57
Vict. c. 71, s. 24), provides that conviction for frauds not
amounting to larceny shall not'' produce such a revesting as
to defeat intermediate bond fide sales. Hence the courts
are chary of granting restitution orders in cases of false
pretences ; for fear there may have been such a sale.
* No criminal court has, as yet, decided this : but see L. E. [1884] 9 A. G.
at p. 20B, L. K. [1889] li A. C. at p. 371.
'■' Such knowledge is prima facie evidence of intent to defraud.
3 24 and 25 Vict. ss. 4, 117. ■* Infra, pp. 403— 4. » Supra, p. 221.
^^ Thus overriding the decision in Bentley v. Vilmont, L. R. 12 A. C. 741.
252 Receiving stolen goods [ch.
THE RECEIVING OF STOLEN PROPERTY.
Having now completed our view of the various crimes
by which an o^vner may be dishonestly deprived of his
chattels, we may supplement it by an account of a crime
which is likely to be committed in the course of the subse-
quent disposition of that property.
At common law the receiving of stolen goods was, and
still is, a misdemeanor. It was necessary that a larceny of
the goods should have been committed ; yet the receiver was
not indictable as an accessory after the fact to this larceny,
(unless the receiving in some way assisted the thief 's escape
from justice), because it was not the thief, but only the goods,
that he received. Subsequently, however, by various statutes,
(whose provisions are now comprised in the Larceny Act,
1861^), the scope of the offence was greatly widened;, by
extending it to cases where the original act of dishonesty —
the " stealing, taking, extorting, obtaining, embezzling, con-
verting, or disposing of," the property — was some lesser form
of theft than a larceny. And many cases of receiving were
raised from misdemeanors into felonies'.
The offence consists of "receiving stolen goods, well
knowing them to have been stolen." This involves three
points fur consideration: — (1) the receiving, (2) the thing
received, (3) the guilty knowledge.
(1) There must have been some act of "receiving",
which involves a change of possession. It must therefore be
she^vn that the prisoner took the goods into his possession,
actual or constructive*. This cannot be the case so long
as the original thief retnins exclusive possession of thom ;
(though there may well be an amicable joint possession by a
1 24 and 25 Vict. c. 96, ss. 91, etc.
2 As to a receiving here of goods stolen abroad, see p. 414 infra.
» Reg. V. Wiley, 2 Den. 37 (K. S. C. 361).
xv] lieceiving stolen goods 253
receiver and a thief together). But, as in all cases of
possession, a person may "receive" without himself taking
part in any physical act of receipt. Accordingly if stolen
goods are delivered to the prisoner's servant, or wife, in his
absence, but he afterwards does some act that implies an
acceptance of the goods — as'by removing them to some other
part of his premises, or by striking a bargain about them
with the thief — he will then (though not till then) become
himself a " receiver " of them.
(2) It is also necessary that the goods received should
have already been stolen, antecedently to the act of receiving.
Hence a man cannot become a receiver of stolen goods by
himself committing the act of stealing them. Moreover, the
character of being " stolen goods " is only a temporary one.
For if, after being stolen, the goods happen to return into the
possession (actual or even constructive) of their owner, such
a return will deprive them of the character of stolen pro-
perty ; so that there will not be any crime in subsequently
receivino- them\ This rule often defeats measures which
have been taken by an owner, after detecting a theft, in
hopes of entrapping and punishing some intending receiver.
(3) Finally, the prisoner must have received the stolen
goods with knowledge then- of their having been stolen. Such
knowledge may be presumed, prima facie, if he knew of
circumstances so suspicious as to convince any reasonable
man that the goods had been stolen — e.g., when an unlikely
vendor offers them for an unlikely price at an unlikely hour^
As to the punishment of receivers, the main provisions of
the Larceny Act, 1861, are as follows : —
1. If the original stealing was a felony, either at com-
mon law or by the Larceny Act itself, the receiver may be
1 Reg. V. Villensky, L. R. [1892] 2 Q. B. 597 (K. S. C. 360).
- Rex V. Johnson, 6 Gr. App. E. 218. Eetaining is not Eeceiving.
s Wills' Circumstantial Evidence, p. 76; L. E. [1892] A. C. 287. But
negligence in not realizing their being stolen, or even Eecklessness, will not
create guilt.
254 Receiving stolen goods [ch.
indicted either for a substantive felony or as an accessory
after the fact to the original felony of stealing. The
maximum punishment is fourteen years' penal servitude.
2. If the original stealing was, by the Larceny Act, a
misdemeanor {e.g., if the goods had been obtained by false
pretences), the receiving is a misdemeanor ; and punishable
with a maximum punishment of seven years' penal servitude.
3. If the original stealing was, by the Larceny Act, a
petty offence punishable on summary conviction {e.g., if the
thing stolen were only a dog), the receiving is only a similar
offence ; and is punishable just as the stealing itself is.
But if it be only by some new statute, passed since the
Larceny Act, that the particular form of stealing has been
made a crime, the receiver will only be liable to the common-
law punishment of fine and simple imprisonment, without
hard labour.
CHAPTEE XVI.
FORGERY.
The verb "to forge," which originally meant simply "to
make," acquired early, even before the time of Shakespeare,
the special sense of making deceitfully \ (The cognate verb
"to fabricate" has passed through a similar development.)
Forgery, accordingly, is the offence ^ of "making a false
V^ document in order that it may be used as genuine"; or,
similarly, of counterfeiting certain seals or dies, or the im-
pressions of them.
' See Dr Murray's English Dictionary.
- See o and 4 Geo. 5, c. 27, s. 1 (1); Stepheu, Hist. Cr. Law, m.
180—6.
xvi] Forged Documents 255
Though at first sight this might seem a crime not likely
to be prevalent except in an age of commercial activity, yet
it had already become quite a common offence in England as
early as the fourteenth century. And it was not regarded as
a heinous one. Thus a man who had forged a conveyance of
lands in the name of a deceased person was merely fined
135. ^d} For the common law treated it only as a misde-
meanor, punishable with fine and imprisonment. But, in
proportion as the increase of education and the development
of commerce multiplied the opportunities for committing
acts of forgery, it became necessary to restrain heinous ones
by more stringent penalties. Accordingly, by a succession of
statutes, now consolidated in the FoKgery_Actj J913 (3 and
4 Geo. 5, c. 27, taking effect as from Jan. 1st, 1914)^_maj]iy
classes of instruments have been covered Avith a special
protection, by making the forging of any of them a felony.
Moreover, this statute of 1913 re-enacts a comprehensive
provision (s. 7), making it. a felony punishable with fourteen
years' penal servitude, to obtain money or 'property (or even
endea\. iiu- to obtain it) by "a7i^ forged instrument whatso-
evi r, with intent to defraud." Accordingly to send even
a false telegram, or tamper with a postmark, with the view of
wrongfully obtaining money thereby, will be a felony^.
We must consider (1) the Document, (2) the Falsity,
(3) the Making, (4) the Intent.
(1) The word " Document," or " Instrument," will" cover
any writing the falsificatinu wlKMoif ca n pre judice any
person"'. Accordingly the forgery of many instruments not
comprised in the definitions of any of the numerous statutory
1 Kentish FAjre of 1313, p. Ixxi ; cf. Mr Pike's Y. B. 20 Edw. III. p. I.
- Beg. V. Riley, L. K. [1890] 1 Q. B. 309 (K. S. C. 179).
3 The two words are synonymous; Rex v. Cade, L. K. [1911] 2 K. B. 209.
■* I.e., by prejudicing him in any " business relatiou"; even thougii it be
one not enforceable legally, e.g. a bet.
256 Forged Documents [ch.
felonies still remains punishable ; for instance, certificates of
Holy Orders, tlu;iir<- ti.kets\ and ordinary imsealed written
contracts. Hence nut (»uly deeds and similar important instru-
-^^ ments are protected by the law of Forgery, but also mere
1. U( i< of recommendation by which employment or other
pecuniaiy advantage is sought, or certificates of identity for
obtaining a passport". A letter to a man Avho really owed
money to the forger, falsely purporting to be wi'itten by his
employer and urging him to pay the debt promptly, is a
sufficient document^ And so is a letter to a gaoler, request-
ing leave to confer with a prisoner and falsely purporting to
be written by his solicitor*. "It is immaterial in what
language the document is expressed ; or in what place, Avithin
J or without the King's dominions, it is expressed to take effect ^"
^ I Yet a picture is not a document. He nce it is no fo rgeiy
I to put on a picture the false signature of some famous
\ painter ; fur the painter's signature gives no legal efficacy*^,
>^p*4 / but is a mere identificatory mark. The imitation of any
V trademark, accordingly, was not a forgery, until specifically
made a misdemeanor by statute I Similarly, when a man pays
his bill in a shop with a bank-note and some sovereigns,
although he would commit a forgery if he were to put on
the back of the note the name of some well-known capitalist,
yet there would be no forgery in his scratching the same
name on the sovereigns.
So, again, whilst it is forgery to fabricate a postage-stamp
for actual use, or to eradicate from a used stamp the Post
Office's cancelling marks, it is not a common-law forgery
1 Reg. V. Bennett, C. C. C. Sess. Pap. Lxxm. 94.
2 Reg. V. Barrow, C. C. C. Sess. Pap. c. 644.
» Rex V. Parker, 74 J. P. 203.
* Rex V. Barrett, C. C. C. Sess. Pap. cxxx. 797.
6 Forgery Act, 1913, s. 1 (3 a).
6 Reg. V. Gloss, D. and B. 460 {K. S. C. 184).
^ See, noiv, the Merchandise Marks Act, 1887 (50 and 51 Vict. c. 28).
xvi] Forgery — the Falsity 257
to. make what purports to be an already-used stamp, for sale
as a curiosity ; but it is forgery by the Stamp Act^
" (2) A document is a "false" one, whenever the forgery
causes it to have an effect which the person executing it
does not intend to produce, or an effect which (though he
does mtendTd procluceTt) he cannot legally produce. Accord-
ingly an instrument is not a forgery when it merely contains
statements which are false, but only when it falsely purports
to he itself that which it is not^. Thus a telegram to a
newspaper is forged if it is sent falsely in their reporter's
name; but not if it merely sends untrue news^. In other
words a forgery is a document which not only tells a lie, but
tells a lie about itself. The commonest case is where it "^^
" purports to be made by or on^ behalf of a person who did
not make it nor authorise its making*."
Again, mis-statement^ in an instrument of the time or ife.
place of making it, will render it false if that time or place '^
be material to its operation; and, similarly, too, will the
mis-statement of any distinguishing mark — like the number
on a debenture — which identifies the instrument. So the
fraudulent ant edating of a cheque is forgery. And if a ^
telegraph clerk, immediately on hearing the result of a race, \}^^ ^
despatches to a bookmaker a telegram backing the winning
horse, and purporting to have been handed in at the post
office before the race was run — i.e., in time to make a genuine
bet — he commits a forgery^. Again, a person, to whom a
merely limited authority to act as agent has been given, may
commit forgery by exceeding this authority. Thus if a servant, (
to whom £2 are due for wages, receives from his employers \
a cheque in his own favour, duly signed but with the amount /
1 See 9 Cr. App. K. 195; Rex v. Jeffreys, C. C. C. Sess. Pap, csv. 575.
- Reg. V. Ritson, L. R. 1 C. C. E. 200 (K. S. C. 188).
3 Rex V. Horner, 74 J. P. 216.
* Forgery Act, 1913, s. 1 (2). s Ibid,
« Reg. V. Riley, L. R. [1896] 1 Q. B. 309 (K. S. C. 179).
K. 17
ly
258 Forcfery — tlie Falsity [ch.
left blank, and is told to fill it up for the £2, he will become
i^uilty of forgery if he fills it up for £3^. But it is otherwise
/ if the agent has a general authority; or if, though he has
merely a limited authority, he makes only such a document
as comes within the limit. Accordingly if, when a blank
signed cheque has been entrusted to a man, with authority
to fill it up for an amount to be calculated by him, he fills
it up for that amount correctly, but wrongfully goes on to
cash it and to appropriate the proceeds, his crime is not
a forgery 2.
By mere implication a document may tell a suflScient
falsehood about itself Thus falsity may be produced by
making a document in the name of an imaginary or a
deceased person^; or even by making it in your own name
but with the intention that it shall j^ass as made by some
one else^ as where a man indorses a bill which was remitted
to some other person of his name, but by mistake came to
him instead ^ In all these cases there is a forgery; for one
person makes a writing which represents itself as the act of
some other person (real or fictitious). But when a man puts
forward a document as emanating, not from any other person,
but strictly from himself, it will not be rendered false by
his adopting an assumed name in his signature to it, for it
still is to him and no one else that credit is given ^.
(3) The act of "making" a false document may be com-
mitted either (i) by affixing to it a seal or a stamp, or altering
one that is already on it, or (ii) by either writing or erasing,
in the document itself, any material words or letters or
figures, even though they do not constitute the whole of the
1 Reg. V. Batemnn, 1 Cox 186 (K. S. C. 191). " Ihid.
8 Bex V. Lewis, Foster 116 (K. S. C. 195); Forgery Act, 1913, s. 1 (2 b).
* Forgery Act, 1913, s. 1 (2 c).
« Mead v. Youiir/, 4 T. E. 28 (K. S. C. 197); Rex v. Parkes^2 Leach 775.
6 Reg. V. Mailiii, L. E. 5 Q. B. D. 34 (K. S. C. 199).
xvi] Forgery— the Making 259
document but only a part of it^ {e.g., the signature, or even
the crossing-, of a cheque). There may even be a forgery by
a mere inactive omission, provided that the words omitted
would have qualified the operation of those that remained ;
as where an amanuensis, when taking down a will from
a testator's dictation, fraudulently omits a condition attached
to one of the legacies^. A nd the_ offeace of Forgery* "may
be complete^ve n if the d ocument, when forged, is incomplete;
or is not, or docs not purport to be, such a document as would
bejbinding in law" — e.g., an unstamped promissory note.
A man may be guilty of forging a document even though'
nojpart of it was actually written by him. Thus the written
transcript of a telegraphic message, made out at the arrival
office, is made by the hand of a purely innocent agent ^ the
post office clerk ; but the sender of the telegi'am is as much
responsible for it as if he had written it with his own hand^.
Yet it is not forgery merely to use fraud (however gross) to
procure the execution of a document, e.g. to get a man to
sign it by misrepresenting to him its contents'^. Such con-
duct, however, is a statutory misdemeanor^, punishable with
five years' penal servitude. And it may well be contended
that in all those cases where the deceived person — as where
he is blind or illiterate^ — is entitled to repudiate the instru-
ment as not his genuine act, the fraudulent author of this
1 Forgery Act, 1913, s. 1 (2 a). 2 Forgery Act, 1913, s. 1 (3 c).
3 1 Hawkins P. C. p. 265.
* Forgery Act, 1913, s. 1 (3 h).
^ Cf. p. 84 supra.
6 Reg. V. Riley, L. B. [1896] 1 Q. B. 309 (K. S. C. 179).
7 Reg. V. Chadivich, 2 M. and K. 545.
8 24 and 25 Vict. c. 96, s. 90: " fraudulently inducing by a false pretence
the execution of a valuable security." All instruments of title, either to
land or to goods, are here included by s. 1 as " valuable securities."
^ But as to normal men the law is not clear. See Hoicatson v. Wehli,
L. E. [190.S] 1 Ch. 1 : Carlisle C. B. Co. v. Bragg, L. K. [1911] 1 K. B. 489 ;
Pollock on Contract, pp. 488 — 493.
17—2
2G0 Forgery— the Maldng [on.
false document is guilty of Forgery, through an innocent
agents
If a document is not itself false in any way, the mere fact
of putting it to a fraudulent use will not make it a forgery.
.p Thus where wrappers were printed in imitation of those used
zOj . J by a well-known firm, but the goods of a less famous firm
^'. - were packed in them for sale, the mere printing of these
wra})pers was held not to constitute a forgery-. (But the
actual use of them in trade would involve the crime of an
attempt to obtain money by false pretences.)
(4) It only remains to consider whether it is necessary
that the forger should have had any specific form of mens rea
in deceitfully making the false document. At common law
it was necessary that he should intend not merely to deceive
but also to defraud 3 thereby — to prejudice some one by
inducing him to alter (or abstain from altering) his rights,
though not necessarily to his actual pecuniary loss, ^ut
the statute law has specified many kinds of instruments
which it has rendered it criminal to forge even for the
purpose of merely deceiving, without any intention of de-
frauding. This, for instance, is the case with every piihtic
document* {e.g. a nomination paper or ballot paper for a
Parliamentary or municipal election) ; and thus with marriage
licences and the documents or registers of any court of
justice^; with registers, or certificates, of births, baptisms,
marriages, deaths, burials, or cremations^; and with documents
1 See Stephen (Dig. Cr. Law, art. 385) on Ecg. v. Collins, 2 M. and E.
461. Cf. 4 American State Ecp. 848.
2 Ecg. V. Smith, D. and B. 566 (K. S. C. 186).
8 Eeg. V. Hodgson, D. and B. 3 (K. S. C. 202).
* Forgery Act, 1913, s. 4 (2). Two years' imprisonment -with hard
labour and a fine is the maximum punishment ; except for those especially
important ones, which it is made felony to forge.
5 Ibid. s. 3 (3). Felony: seven years' penal servitude.
' Ibid. s. 3 (2). Felony : fourteen years' penal servitude.
i
xvi] Forgery — the Intent 261
that bear a royal seal or sign-maniiaP. It similarly is marie
an offence to forge a telegram^ — i.e., to send one so signed
as to purport to come from a person other than the actual '''
sender — even though the object in view be not to defraud, ,
but merely to obtain the joy of hoaxing the recipient.
In most forgeries, however, an intention to defraud is
necessary. Thus there is a comprehensive provision in the
Forgery Act, 1913, s. 4 (1), that "Forgery of any document
which is not made felony... [by statute]... if committed with
intent to defraud shall be a misdemeanor; and punishable
with imprisonment with or without hard labour for any term
not exceeding two years" and a fine^ And even of those
forgeries that are statutory felonies the most common require
an intent not merely to deceive but to defraud: as in the
case of forging valuable securities or documents of title to
land or to goods*, or of forging deeds, wills, or bank-notes ^
/ At ^ommon law, i t was moreover necessary that the^^
indictment should specify the particular person againsf whom
this^ intent ion to defraud had been directed. But it is now^
sufficient t .• all' ge in general terms an intention to defraud
"^ — or, where mere deceit makes the forgery criminal, to
deceive — without stating in the indictment, or even shewing
by the evidence, what particular person was to suffer.
But it is not necessary that the forger should have
intended the defrauded person to incur an actual pecuniary
detriment. Consequently a man may be fully guilty of
having forged an acceptance, although he may from the out-
set have truly intended to " take it up " before it should fall
due, or although the money which he aimed at getting by
the forgery was only a sum that was legally due to him.
1 Forgery Act, 1913, s. 3 (1). Felony: penal servitude for life.
2 47 and 48 Vict. c. 76, s. 11. Twelve months' imprisonment.
^ Sec. 12 (2 «)• * Ihid. s. 2 (2). Penal servitude for fourteen years.
'' Ihid. s. 2 (1). Penal servitude for life. The notes of even private or
foreign banks are included; s. 18 (1). 6 mj^^ g_ 17 (.3).
262 Fimishment of Forgery [en.
The mere existence, in the prisoner's mind, of this intent to
defraud will suffice, though {a) no one was in fact defrauded,
and though (6) no particular individual was aimed at in
the prisoner's scheme^, and even though (c) there did not in
fact exist" any one whom the scheme could have defrauded.
Thus if the person, whose signature has been forged as the
drawer of a cheque, has ceased to have any account at the
particular bank, this will not deprive the forgery of its full
criminality. But the fraudulent intent necessary will not
exist unless the offender had reasonable grounds for supposing
(however" wrongly) that some one or other might possibly be
defrauded^. Thus it will be no forgery for a man, who is
himself the sole payee of a bond, to alter it by lessening its
amount^.
The offence of forgery consists,as we have seen, in"making"
the instrument. But the " uttering " of it is also an offence ;
incurring whatever punishment a forgery of the particular
document would have involved, and being a felony or a mis-
demeanor according as that forgery would be*. A person is
regarded as "uttering" when he "uses, offers, publishes,
delivers, disposes of, tenders in payment or in exchange...
tenders in evidence, or puts off" a forgery, knowin g it^ to be
forged, and having the same intent {i.e. either to defraud or
to deceive, respectively,) as the law requires, in the case of
that particular thing, to constitute the offence of forging it^
The punishments of forgeries, as we have seen, vary very
greatly. All the various forgeries that have by statute
been made felonies, have their respective maxima of punish-
ment; ranging froni penal servitude for life to penal servitude
1 Forgery Act, 1913, s. 17 (2). Rex v. Mazagora, E. and H. 291.
- Tliat such a person does exist, is prima facie evideuce of an intent to
defraud. " UtterinR " is still stronger evidence of it.
^ Blake V. Alli'u, Moore G19. Let us add that he loses more than may
appear ; for the bond thereby becomes wholly void.
* I'orgery Act, 19ia, s. (i (Ij. ^ lOid. s. G (2).
xvi] Punishment of Forgery 263
for seven years ; whilst, instead of penal servitude, imprison-
ment may be imposed for any term not exceeding two years,
with or without hard labour^. But any forgery that is a
mere misdemeanor, is punishable only by such imprisonment
as just mentioned, and fine, and binding over, or by merely
one of these I
^ Forgery Act, 1913, s. 12 (1). The offender may, in addition, be bound
over to be of good behaviour; s. 12 (2 h).
2 Ihid. s. 4, s. 12 (2 a, c). There are a few statutory misdemeanors of
Forgery which may be prosecuted either by indictment or even at Petty
Sessions summarily. In the latter case their maximum punishments are
reduced; e.g., forged trademarks, four months' imprisonment or £20 fine;
forged telegrams, a £10 fine. See s. 19 (2) of the Forgery Act, 1913.
CHAPTER XVII.
OFFENCES AGAINST THE SAFETY OF THE STATE.
Passing from offences committed against Property to the
offences against Public Rights, our account of these latter
must commence with what the law ranks as the most heinous
of all crimes — that of Treason^ — " the atrocious crime of
endeavouring to subvert by violence those institutions which
have been ordained in order to secure the peace and happi-
ness of society''." Its name, derived from the French trahir
and Latin tradere, denotes an act of perfidious " betrayal."
The offence might, at common law, be committed either by
a breach of the faith due to the King from his subjects (High
treason), or even by a breach of that due to one of those
subjects from his own inferiors (Petit treason). But a suf-
ficiently grave breach of the latter form of allegiance could
only be committed by the actual slaying of the superior ; as
when a feudal vassal murdered his lord, a priest his bishop,
or a wife her husband. Since 1828, such homicides have
ceased to differ from ordinary murders^; so that high treason
is now the only kind of treason known to our law.
An indictment for high treason was in mediaeval times a
most powerful weapon for the Crown to vdeld against its two
great rivals, the church and the baronage. For a " clerk "
who was accused of this crime could not claim benefit of
^ See Pollock and Maitland, i. 498—507; Stephen, Hist. (Jr. Law, ii.
241—207.
2 Per Marshall, C.J., 4 Ciauca (U.S.A.) 127,
3 9 Geo. IV. 0, Dl, s. 2.
CH. xvii] High Treason 265
clergy'; and if any feudal vassal was convicted of it, his
lands passed to the Crown instead of to his immediate lord.
Hence the King's judges, attentive to their master's interests,
expanded the definition of high treason until it became a
most comprehensive offence, including any kind of injury
to the King's rights, e.g., even the hunting of deer in his
forests. At last a reaction was provoked. In the reign of
Edward III., one John Gerbage of Royston laid hands on one
William of Bottisford and would not release him until he
made a payment of £90. This act of unlawful imprisonment
was construed as an act of treason, on the plea of its being
an " accroaching of the royal power." At this the barons
forthwith took action''; and succeeded in confining the law
of treason within definite limits by the enactment, in 1351,
of the Statute of Treasons'. This measure is remarkable;
both for the constitutional securities directly conferred by
it^ and also from its affording, at so early a date, what
is still almost the only instance in which any statutory
definition of an important crime has entirely superseded
the older common law with regard to it. It limited high
treason to seven possible forms; (two of which have since
been reduced to felonies). The seven were: —
1. Compassing' the death of the King, of his Queen, or
of their eldest son and heir.
So far as these words go, the crime seems to consist in a
mere state of mind. But an actus reus is made necessary by
words in a subsequent part of the statute, which require the
1 Injra, p. 480. Pollock and Maitland, i. 429 ; ii. 500.
2 Reeves' History of English Law (ed. Finlason), n. 317.
» 25 Edw. III. c. 2. " Accroach " = appropriate.
* "No people enjoy a free constitution unless adequate security is
furnished by their laws against the discretion of judges in a matter so
closely connected [as the law of treason is] with the relation between the
Government and its subjects"; Hallam's Constitutional Uintory, ch. xv.
pp. 203 — 226, (a passage deserving careful study).
8 Austin's Jurisprudence, Lect. xxi.
266 The overt act [oh.
person accused to " be thereof proveably attainted of open
deed\" It was for this incipient offence of " compassing the
death " of the King, that the regicides of Charles the First
were indicted ; the ultimate act of taking off his head being
merely treated as one of the open deeds which made manifest
that compassing^
That in treason, just as in all other crimes, a mens rea
will not constitute guilt without an actus reus, is vividly
shewn by a Transatlantic decision that an American citizen
who meant to join the hostile British forces, but found that
he had by mistake attached himself to a party of the United
States troops, could not be convicted of treason'.
An "open deed," or "overt act," has been defined by
Alderson, B., as "any act, measure, course, or means what-
ever, done, taken, used, or assented to, for the purpose
of effecting a traitorous intention* " ; and, more tersely, by
Lord Tenterden* as "any act manifesting the criminal in-
tention and tending towards the accomplishment of the
criminal object." Thus even so commonplace an event as
hiring a boat at a riverside wharf may amount to such an
act^ And the collecting of information for the use of the
King's enemies, though it never be actually sent to them,
clearly amounts to one^ And even a conspiracy, though
going no further than the oral conversation, constitutes a
sufficient overt act^ But mere spoken words, however
1 These words do not occur in the statute until the conclusion of the
fourth species of treason. But the judges, in construing the statute, did
not limit them to that species ; and ruled that, in indictments for any form
of treason, a specific overt act must be alleged. The first form, it being the
only one which is purely mental, is that case in which this rule assumes its
chief importance. See Foster's Grown Laic, p. 220 ; and 1 Hale P. C. 108.
a 5 St. Tr. 982. ' Commonwealth v. Malin, 1 Dallas 33.
4 6 St. Tr. (N. S.) 1133.
" Rex V. Thistlewood, 33 St. Tr. 684.
« Lord Preston's Case, 12 St. Tr. GIG (K. S. C. 377).
7 Rex V. Delamotte, 22 St. Tr. 808.
8 See 7 St. Tr. (N. S.) 403.
xvii] The overt act 267
seditious and violent, are not as a general rule an overt
acts yet they may become one if they are not simply " loose
words, spoken without relation to any act or project," but
help to carry forward, or are connected with conduct which
carries forward, the intention which they express". Thus
words inciting some one to kill the King are an overt act
of high treason. Indeed spoken words, uttered with an
intent to confirm men in the prosecution of measures for
a deposing of the King by force of arms, " are in their verj'
nature and essence the clearest and most absolute overt
acts of high treason ^"
But the publication of written words, since they are in a
more permanent form, and have usually been composed with
more deliberation, than mere spoken ones, may be a suf-
ficient overt act of treason ; even when it is unconnected with
any plan for further conduct of a treasonable character. Yet,
whilst published writing may clearly be thus an overt act, it
is quite uncertain how far, if at all, the mere writing of a
document, without ever publishing it, can be an overt act.
In 1615, Edward Peacham* was convicted of treason on
account of certain passages in a sermon found in his study,
which had never been preached. But he was never executed;
and died in prison. Algernon Sidney' again, was similarly
convicted of treason in 1683, on account of an old unpublished
MS. treatise on Sovereignty, found in his house. He was
executed; but his conviction was subsequently reversed by
Parliament. Hence neither of these two cases is of weight
as a precedent. Had Sidney's papers been, on the other
hand, plainly referable to some definite project of insur-
rection, they might of course have constituted an overt act.
1 Foster -^00 ; Pijne's Case, Cro. Car. 117 (K. S. C. 377).
2 Bex V. Charnock, 2 Salk. 633 (K. S. C. 379), per Lord Holt.
» Per Lord EUenborouRh in Rex v. Despard, 28 St. Tr., at p. 487.
* 2 St. Tr. 869. Hallain, Con-<t. flixt. ch vi.
6 9 St. Tr. 818 ; Foster, p. lys. See also Lord l-'iaivu s ouot, xZ tit. Tr.
646 (K. S. C. 377).
208 Levying of War [ch.
2. Violating the King's consort, their eldest daughter
unmarried, or the wife of their eldest son and heir.
It seems illogical to bring in the daughter, since the
wives of younger sons are omitted ; hence all reference to
her was left out in the Draft Criminal Code of Lord Beacons-
field's Administration {infra, p. 513).
A sufficient " violating " may take place even by consent.
And the executions, in Henry VIII.'s reign, of two queens,
Anne Boleyn and Catherine Howard, serve to shew that the
royal lady, who consents to her paramour's addresses, shares
the full guilt of his treason.
3. Levying war against the King in his realm.
" War," here, is not limited to the true " war " of inter-
national law»; but will include any forcible disturbance that
is produced by a considerable number of persons, and is
directed at some purpose which is not of a private but of a
"general" character, e.g., to release the prisoners in aZ^_ the
gaols. It is not essential that the offenders should be in
military array or be armed with military weapons*. It is
quite sufficient if there be assembled a large body of men,
who intend to debar the Government from the free exercise
of its lawful powers and are ready to resist with violence
any opposition'.
This kind of treason is therefore distinguishable from a
mere riot by nothing but the "generality" of the object
which is aimed at by those taking part in it. Thus the
Edinburgh rioters in the Porteous case of 1736*, rendered
familiar to English readers by Sir Walter Scott's Heart of
Midlothian, were, after mature consideration, prosecuted only
for riot, and not for treason ; inasmuch as, though they
1 Dr T. J. Lawrence's Principles of International Law, Part iii. ch. i.
a Reg. v. Bowling, 7 St. Tr. (N. S.) 4G0; cf. 32 St. Tr. 3.
* Nor need the body even be large; three men with dynamile have been
held sufficient. C. C. C. Sess. Pap. xcviii. 280.
♦ 17 St. Tr. 993 ; Lord Stanhope's History of England, ch. xvii.
xvii] Aid to Enemies 269
sought to interfere with the Crown's prerogative of mercy,
they resisted merely its being exercised in the particular case
of the detested Captain Porteous, and not the general exer-
cise of it. " It IS neither the numbers concerned, nor the
force employed, but the object which the people have in view,
that determines the character of their crime ; which will be
a riot or a treason, according as this object is of a private
and local or of a public and general character^" Thus in
Damarees Case^, in Queen Anne's reign, a riotous tumult
with the object of demolishing all accessible Nonconformist
meeting-houses was held to amount to a treason; on the
ground that it was to be regarded as a public resistance to
the Toleration Act (which had legalised such meetings) and
an attempt to render it ineffectual by numbers and open .
force. Hence, although the rioters were strong partisans
of the Queen and imagined themselves to be serving her
interests and advancing her policy, they were, by construction
of law, guilty of treason against her.
It will be noticed that the levying of war must be " in
the realm " ; so that enlistmg men, even within the realm, to
go to the aid of the King's enemies in military operations to
be carried on abroad, ^vill not be punishable under this
section*. It is, howevei', punishable under both section 1 and
section 4.
4. Adhering to the King's enemies in his realm\ by
giving to them aid and comfort in the realm or elsewhere.
" Enemies," here (unlike " war " in section 3), is to be
taken in the strict sense which international law puts upon
the word ; and accordingly includes none but true public
1 Rex V. Bardie, 1 St. Tr. (N. S.) 624. Cf. Reg. v. Frost, 4 St. Tr.
(N. S.) 85 (K. S. C. 374). « Foster 213 ; 15 St. Tr. 521 (K. S. C. 370).
3 "Even the actual enlistment of men to serve against the Government,
does not amount to levying of war. To constitute it, there must be an
actual assembling of men for a treasonable purpose." Per Marshall, C. J.,
4 Cranch (U.S.A.), at p. 126.
* These three words seem surplusage ; Rex v. Lynch, 20 Cox 477.
270 Constructive Treason [ch.
belligerents^ Hence to assist mere rebels or pirates does
noTS^nstitute any offence under this section '^ ; though if the
assistance were rendered within the realm it would be a
sufficient "levying of war" under section 31
5. Slaying the Chancellor or the Treasurer or the King's
justices, when in their places doing their offices.
6 and 7. The statute also contained two further sections,
now repealed, which made it treason to counterfeit the King's
great seal or his privy seal, or his money.
These two offences were reduced to felony by statutes
passed in 1832 \
But by statutes of Anne, which are still in force, two
further species of treason have been created, viz. : —
(a) To attempt to hinder the succession to the Crown
of the person entitled thereto under the Act of Settle-
ment*;
(6) To maintain in writing the invalidity of the line of
succession to the Crown established by the Act of Settle-
ment*.
To this summary of the statute law of treason, we must
add an account of what is almost equally important — the
extraordinary extension of its scope by the interpretations
which the judges of the seventeenth and eighteenth centuries,
from political sagacity rather than from logical necessity,
placed upon the simple language of the ancient Parliament
of Edward III.
The original idea of high treason was, as we have seen,
that of a breach of the personal loyalty due to the lord para-
mount of the realm from each of his vassals. Thus an aliefi^
\vho had never been even resident in our realm, could not
1 "Wheaton's International Law, ed. Boyd, § 124 h. * 3 Co. Inst. 11.
3 In Natal, it was held in 1901 that'by serving the Boer forces even as
a cook, a man gave them " aid and comfort." As to Duress, see p. 73 supra.
4 2 and 3 Wm. IV. c. 123 ; 2 Wm. IV. c. 34, s. 1. Sujyra, p. 263.
» 1 Anne, st. 2, c, 21, h. 3. * Auue, c. 41, 6. 1.
xvii] Constructive Treason 271
commit treason ; for clearly he was under no duty of allegi-
ance ^ Hence when a charge of adultery was made, in
Parliament, against the Queen of George IV., it was pointed out
that it did not amount, as in the case of Henry VIII.'s wives,
to a charge of participation in treason ; for the acts alleged
against Queen Caroline were supposed to have been com-
mitted abroad with a paramour (Signor Bergami) who was
an alien and had never resided in British territory.
And this rule still remains in force. No alien falls
within the law of treason unless, by coming into this realm
and so obtaining the benefit of the King's protection, he has
placed himself under the consequent obligation of rendering
him an allegiance, though only a local and a temporary one-.
And even then, as his duty — unlike the lifelong obligation
of the King's own subjects — is only temporary, it has some-
times been urged that it does not necessarily continue
throughout the whole of his residence, but only for so long
as the King's protection continues to be actually effective.
Hence when British territory, where a Boer had for ten
years resided, passed into the military occupation of his own
State's forces, and he thereupon took service with them, it
was argued that the withdrawal of the British troops had
dissolved his British allegiance and that his subsequent ^
conduct was therefoi-e no treason against the King. But
the Judicial Committee^ overruled this contention; pointing Um' /
out that, so soon as the invaders were expelled, the King's jO^
courts gave redress for any wrongs sustained during the
hostile occupation, and that the King's protection was
1 Tucker's Case, 2 Salk. 632.
3 1 Bl. Comm. 457 ; Foster 183 ; Hex v. Maclane, 26 St. Tr, 721. This
temporary allegiance by domicile, insisted on in many South African trials,
is due (Forsyth's Cases and Opinions, p. 200) from every subject of a friendly
State who enters our dominions, even though he avowedly come for hostile
purposes alone. See Bex v. Lynch, L. K. [1903] 1 K. B. 444, for the converse
case, that of the Englishman naturalized in a hostile State.
s De Jager v. Alt. Qen. of Natal, L. E. [1907] A. C. 326.
272 Constructive Treason [ch.
therefore a continuous one. It would be intolerable if,
immediately upon an enemy's taking possession of a county,
the aliens resident within it could join him Avitli impunity.
A small invading force might thus become an army.
The historical development of our nation tended steadily,
century after century, to make a consciousness of the impor-
tance of the stability of public order — rather than the feudal
feeling of mere personal loyalty to a prince — become the
binding force of the body-politic. This new conception of
civic duty rendered necessary new provisions for its legal
enforcement. The criminal law had to begin to take cog-
nizance of politicians who, whilst devoted to the reigning
King, were nevertheless disturbing the order of the realm ;
though possibly only by assailing those institutions whereby
the constitution had set a check upon the King's powers. It
is a remarkable instance of the activity of judicial legislation
that the important legal development, thus rendered neces-
sary, was effected not by Parliament, but by the judges.
They transformed the feudal conception of treason, as a
breach of personal faith, into the modern one, which regards
it as " armed resistance, made on political grounds, to the
public order of the realms" This new idea they evolved out
of Edward III.'s statute by violent interpretations of the
language of the 1st and 3rd sections. Thus a compassing of
the death of the King was held to be sufficiently evidenced
by the overt act of imprisoning him ; because, as Machiavelli
had observed, " between the prisons and the graves of princes
the distance is very small '^." And an attempt to raise a
rebellion against the King's power, in even a remote colony,
was similarly held to shew a compassing of his death ; though
he were thousands of miles away from the scene of all the
disturbances^ So, again, the overt act of inciting foreigners
to invade the kingdom, i.e., of compassing the levying of war,
^ Steplien's General View, 1st ed. p. 3(5.
« Foster, p. 196. • Hex v. Maclane, 20 bi. Ir. 721.
xvii] Constructive Treasons 273
an offence which the statute does not mention, was held to
constitute an overt act towards compassing the King's death'.
Similarly, as we have seen, a levying of war against any
general class of the King's subjects was held — by a. con-
struction which Hallam" pronounces to be " repugnant tP the
understandings of mankind in general and of most lawyers" —
tobea levying of war against the King himself; as in the
case of riots for the purpose of pulling doAvn all public houses
or all inclosures of commons, or of forcing all the employers
in a particular trade to raise the rate of Avages^.
These interpretations were often violently artificial,
almost setting the statute of Edward aside by their forced
constructions, and accordingly they Avere viewed with
jealousy by the public at large — a jealousy which found
expression in the verdicts of jurymen. Thus when, for his
share in the No-Popery riots of 1780, Lord George Gordon
was indicted for the treason of constructively " levying war^"
the acquittal which he secured, whilst fully justified by the
facts of the case, was facilitated by the popular dislike to
strained interpretations of the law^ Not long afterwards.
Hardy, Home Tooke and Thelwall were in 1794 indicted for
a constructive compassing of the King's death*. The doctrine
which was laid down at these trials, as to constructive treasons,
was of an extreme character, carrying its " construction " of
Edward III.'s statute to (in Hallam's opinion) " a length at
which we lose sight of the plain meaning of words I" The
verdicts of acquittal shewed that such judicial legislation
would serve only to defeat its own end. Direct legislation had
obviously become necessary. Accordingly the Parliament at
once enacted, in 1795, a statute expressly recognising as treason
the most important of the constructive treasons.
> Lord Preston's Case, 12 St. Tr. 646, Foster 196.
2 Constitutional History, ch. xv. ^ Foster 211. * 21 St. Tr. 485.
" Campbell's T.iies of the Cliicf Justices, ch. xxxviii.
« 24 St. Tr. lOy ; 25 St. Ti. I. 7 Constitutional History, ch. xv.
K. 18
274 T reason- felo)iy [ch.
After the Irish agitation of 1848, a further statute (11
Vict. c. 12), extending to Ireland, was passed; which reduced
those constructive treasons dealt with in George Ill's statute
(except some which really afitected the person of the Sove-
reign) to mere felonies, so far as regarded the operation of
tlie Act of 1795. They have no statutory name; but are
commonly known as "treasonable felonies" or "treasour
felonies." They include all deliberate expression, by overt
act, of any intention to depose the King, or bo incite an
invasion of the realm, or to levy war against even a House
of Parliament to change its policy. The maximum punish-
ment for them is penal servitude for life. This change in the
punishment rendered it much easier to prosecute these crimes
with success'. For juries, naturally, are extremely reluctant
to convict persons of good character for offences which, how-
ever gravely injurious to the community, involve no ethical
guilt and yet are punished with death.
But it is important to notice that these Acts of 1795 and
1848 loft untouched the statute of Edward III. and the
judicial constructions of it ; and that, consequently, it is still
open to the Crown in such cases to proceed against the
offender for a constructive treason- instead of on the lighter
charge of a treason-felony". That precisely the same action
should thus occupy, simultaneously, two different grades in
the scale of crime is indeed a singular juridical anomaly.
As treason was, of all crimes, that in which the Crown
had the strongest direct interest in securing the convic-
tion of an accused person, it was the one in which a public
prosecutor or a subservient judge had most temptation to
conduct the trial so as to press harshly upon the prisoner.
The reigns of the Stuarts had afforded so many instances of
' So, too, did a change as to Evidence ; infra, p. 385.
* An excellent account of constructive treason will be found in chaps.
CLXxvii. and clxxx. of Lord Campbell's l,ives of the Chancellors.
3 11 Vict. c. 12, ss. 6, 7. See 51 and 55 Vict. c. 67, abrogating the
merely oral treason-felonies.
xvii] Procedure in Treason 275
this harshness that, after the Revolution of 1688, the legisla-
ture introduced great innovations into the course of criminal
procedure so far as trials for treason were concerned; and,
as Erskine says, " met the headlong violence of angry Power
by covering the accused all over with the armour of the Law."
By the 7 and 8 Wm. III. c. 3 it was provided that a prisoner
accused of high treason should have a right to receive (1) a
list of the intended jurors S (2) a copy of the indictment, and
to make defence by (3) counsel learned in the law, and (4)
witnesses. And another clause, (re-enacting and strength-
ening an enactment of Edward VI.''') made necessary
(5) a technical minimum of proof; by providing that the
prisoner should not be convicted unless either he voluntarily
confessed in open court or his guilt were established by two
witnesses, deposing either to the same overt act, or at least
to separate overt acts of the same kind of treason. And
(6) it enacts that treason can only be prosecuted within
three years from its commission ; unless it were committed
abroad, or consisted of an actual plot to assassinate the
Sovereign (not a mere technical " compassing the death ").
(These rules — except nos. (3) and (4) — have not been
extended to treason-felony ; an omission which creates ad-
ditional causes for the greater facility of obtaining a convic-
tion for that crime than for treason.)
Treason, like all felonies, was punished with death. But
the execution of a traitor was accompanied with special
circumstances of horror, to mark the supreme heinousness
1 To which 7 Anne, c. 21, s. 14 adds a list of the intended Crown
witnesses. Cf. p. 475 infra.
2 1 Edw. VI. c. 12, s. 22. Hence when a treason had been committed,
but the Crown could obtain only a single witness, the only mode of punishing
the offender was either to prosecute him for the mere misdemeanor of
sedition— as in the case of Hampden [9 St. Tr. 1053] (the grandson of the
great opponent of illegal taxation) who took part in the Rye House Plot— or
to attaint him by an ex jwst facto Act of ParUament, as in the case of
Fenwick [13 St. Tr. 637], who plotted the assassination of William III.
18—2
276 Punishment of Treason [ch.
of his crime'. Instead of being taken in a cart to the
scaffold, he was drawn to it on a hnrdle, hanged only par-
tially-, cut down alive and then disembowelled, beheaded and
quartered. The head and quarters were permanently exposed
in some conspicuous place*; after being boiled in salt to
prevent putrefiiction, and in cummin seed to prevent birds
pecking at them. But the form of sentence in treason was
not quite invariable*, and the King often remitted everything
except the beheading. In later times, even where there was
no such remission, the executioner usually took it upon him-
self to make the strangulation fatal. At last it was enacted,
in 1814', that the beheading and quartering should not take
place till after the prisoner had been put to death by
the hanging. (Women were never beheaded or quartered ;
but^ burned.) And finally in 1870 by the Forfeitures Acf
all the exceptional features of execution for treason w^ere
abolished, except in cases where quartering or beheading
may be ordered by royal warrant. For by the Act of 1814^
the Crown has still power to order, by warrant under the
sign manual, that any male who has been sentenced to be
hanged for treason shall be beheaded. The judge, however,
cannot appoint any mode of death but hanging. In treason,
(as in all capital crimes except murder), the common law rule
which requires executions to take place in public still holds.
But (see p.482/i.l t?i/7'a)the sentence is now always commuted.
A penalty which was entailed at common law by all
capital crimes, and which sometimes was more dreaded than
1 See Stephen, Hht. Cr. Late, i. 476—7 ; Pollock and Maitland, i. 499.
"^ The regicide Harrison rose and struck the executioner after his bowels
had been cut out (5 St. Tr. 1237).
3 Dr Pusey's mother, who survived until 1858, could remember seeing
on Temple Bar the head of one of the rebels of 1745.
■• The grossest may be seen in 3 Hargrave's State Trials, 340, 409, and in
Comberbach's Reports, 257.
1 51 Geo. III. c. 146. « Till 1790; 30 Geo. III. c. 43.
7 33 and 31 Vict. c. 23. 8 54 Geo. III. c. 146, s. 2.
(>J \/£ ^'^ L.\ n.
xvii] ^ Misjjrision of Treason Til
that of death, was the loss of all the offender's property, and
the consequent ruin of the fortunes of his family. But in
treasons his landed estate Avas not disposed of in the same
way as in felonies. For in cases of treason, as we have already
seen, not only the personal but also the real estate was for-
feited to the Crown absolutely^ But in case of felonies, the
realty was forfeited to the Crown for no longer than the
offender's life and a year afterwards ; after which period his
estate (if in fee simple and not of gavelkind tenure) escheated
at common law to the lord from whom it was held.
There had been no trial, in England or Wales, for a
treason since 1882, (or for a treason-felony since 1885)»
until Lynch^ was tried for treason, ou Jan. 21, 1903.
Misprision of Treason.
In our account of the law of Principal and Accessory' we
saw that, when a treason has been committed, anyone who
knowingly receives or assists the traitor, so as to aid himTm
escaping from justice, becomes himself guilty of complicity
inthe past act of treason as a " principal after the fact." And,
in the case of felonies, a corresponding rule renders a similar
harbourer an " accessory after the fact " to the original felony.
We may now add that, even where no active assistance is
thus given to the person who has committed a treason or a
felony, anyone who knows of his guilt, and can give informa-
tion that might lead to his arrest, will commit an offence if
he omits to communicate that information to some justice of
the peace. The " misprision " (i.e., high misdemeanor) of thus
concealing a treason, or a felony, is usually termed briefly
" misprision of treason " or " misprision of felony*." There is
1 See 1 Hale P. C. c. xxiii.
2 L. R. [1903] 2 K. B. 444. » Supra, pp. 83, 88.
^ The word Misprision was formerly in use as a general name for any of
the more heinous kinds of misdemeanors (4 Bl. Comm. 119) ; but it has now
become obsolete except in the two offences now mentioned; where it probably
means " undervaluing " the crime concealed.
' 1? /■ ^'
\ -
278 Praemunire [ch.
some authority^ for saying that a misprision may also be
committed in the case of a treason or felony that is merely
beino- planned, if anyone who knows of the design refrains
(however much he may disapprove of the project) from dis-
closing it to a justice of the peace in order to prevent its
accomplishment-. If he go so far as to give actual assent
and encouragement to the plot, he may of course become
guilty, not of this mere misdemeanor, but as an accomplice
in the felony or treason itself, should the design be ulti-
mately carried into effect. A misprision of felony is punish-
al)le with imprisonment and fine^ ; but a misprision of treason
witli imprisonment for life and the forfeiture of the offender's
goods absolutely and of his lands for so long as he li,ves. In
the case of mere misdemeanors* there is no similar crime in
omitting to disclose them.
It is moreover in felonies, and perhaps also even in
misdemeanors'*, an offence to "compound" them; i.e., to
bargain, for value, to abstain from prosecuting the offender
w'hoTTaa committed a crime. This offence of compounding
is committed by the bare act of agreement ; even though the
compounder afterwards breaks his agreement and prosecutes
the criminal. And inasmuch as the law permits not merely
the person injured by a crime, but also all other members
of the community, to prosecute, it is criminal for anyone to
make such a composition ; even though he suffered no injury
and have no concern with the crime'.
Praemunire.
Akin in nature to treason, though far less heinous in
de^rree, are the miscellaneous offences which have become
' 2 Hawkins P. C. c. 29, s. 23; cf. Bishop's Criminal Law of U.S.A.
* For tlie wider duty imposed in India, including even that of answering
questions put by the police, see the Indian Penal Code, s, 44.
2 Prosecutions for it are now unknown, but Lord Wensleydale had tried
two; Times, March 18, 1852. * Cf. p. 88 n. 1.
•'' Often, certainly, as a "conspiracy to pervert the course of justice."
G Reg. V. Ihmiens, L. R. 10 Q. B. D. 141.
xvii] Praemunire 279
grouped together under the name of Praemunire. Under
this head are comprised a variety of crimes whose chief con-
nexion lies in their having the same punishment. But all
the earlier offences so punished were, as some of the later
also are, acts tending to introduce into the realm some foreign
po'WEr (usually that of the Pope), to the diminution of the
King's authority. The word " praemunire " was the name of
tlie WTitjw hich commenced the proceedings against a person
guilty of such an offence ; but afterwards it was also applied
to any statute that created an offence for which this writ
was to be issued ; and, still later, it came to be applied to the
punishment appointed for such offences, and even to the
offences themselves ^
The voluminous collections of our State Trials contain
only one English instance of any proceedings under any
Statute of Praemunire ; viz., that of some Quakers who refused
to swear allegiance to Charles 11.^ The principal offences
of praemunire still recognised in our criminal law are the
following : —
(1) By 25 Henry VIII. c. 20, the refusal of a dean and
chapter to elect to a bishopric the clergyman nominated to
them by the King.
(2) By the Habeas Corpus Act (31 Car. II. c. 2), the
unlawful sending of any prisoner outside the realm, so
that he would be beyond the protection of the writ of
Habeas Corpus.
This offence is not only made a praemunire, but, as we
have seen, even the Crown's power to pardon it is taken
away^.
(3) By 6 Anne, c. 23, s. 9, if the Scotch peers when met
to elect their representative peers to the House of Lords
discharge any further business they commit a praemunire.
' 4 Bl. Comm. ch. viir.
" 6 St. Tr. 201. There is also one Irish case, 2 St. Tr. 553.
3 Supra, p. 15.
280 Unlawful Assemblies [en.
The offence of praemunire is only a misdemeanor; yet
it is punished more severely than most felonies. For the
offender (a) is placed out of the King's protection, e.g., he
cannot sue ; (6) he is imprisoned for life ; and (c) he forfeits
to the Crown all his property, real as well as personal,
absolutely. This forfeiture is pronounced expressly, as a
part of the sentence ; and consequently does not render the
offence a felony \ and is not removed by the "Forfeitures
Act, 1870."
OFFENCES AGAINST THE PUBLIC PEACE.
In reviewing the law of treason, we have seen- that the
extension of that crime by judicial constructions has enlarged
its scope so as to include many acts which would seem to
fall more naturally under the head of the much less heinous
offence of Rioting. This offence itself is also one of a very
wide and elastic character. This comprehensiveness is pro-
bably due (like the severity of the law of Conspiracy') to the
weakness which characterised our constitutional provisions for
the prevention of crime throughout the long period that elapsed,
after the decay of the old system of corporate responsibility
by Frankpledge'*, before the establishment by Sir Robert Peel
of our modern force of borough and county police. Through-
out these intervening centuries, the law felt its parish
constabulary to be comparatively powerless to prevent any
offence that involved the presence of a plurality of offenders.
It consequently attempted to supply the defect by very
comprehensive prohibitions of all such crimes.
Hence it was laid down that whenever so many as three
persons meet together to support each other, even against
opposition, in carrying out a purpose which is likely to
involve violence or to produce in the minds of their neigh-
bours any reasonable apprehensions of violence, then even
' Siijyra, p. 02. ^ Siqmi, p. 2T2. » Infra, p. 29(1. * Supra, p. 29.
xvii] Unlaicfod Assemhlies 281
though they ultimately depart without doing anything what-
ever towards carrying out their design, the mere fact of their
having thus met will constitute a crime. It will be the
indictable misdemeanor of Unlawful Assembly^ Such an
offence would therefore be committed as soon as three
labourers collect in a cottage of one of them, wi th a view to
a night's poa ching, or to attending service in the village
church and protesting turbulently against the mode in which
it is conducted, even though they never actually start on
their expedition. Similarly, a group of people who have
come together to see a prize-fight constitute an unlawful
assembly, even though the fight never takes placed The
offence is sometimes defined so widely as to include all cases
where three or more persons are assembled for any unlawful
purpose whatever, even though it be one that can cause no
fears of violence. But this comprehensive definition, long
ago called in question^ has now been set aside by the case
(A Field v. The Receiver for the Metropolitan Police District,
L. R. [1907] 2 K. B. 853 ; (which should also be studied for
its definition of the offence of Riot). Accordingly, when
three boys meet to go and gamble at pitch-and-toss on a
common, or when three costermongers go into a street on
Sunday morning to sell their vegetables contrary to the
Lord's Day Act, they would not constitute an unlawful
assembly, though they may be guilty of an indictable
conspiracy*.
In this offence, as in all others, the law regards persons
as responsible for the natural consequences of their conduct.
Consequently if people have assembled together under such
circumstances as are in fact likely to cause alarm to by-
standers of ordinary courage, the assembly will be an
unlawful one, even though the original purpose for which
1 3 Coke Inst. 176 ; 4 Bl. Coram. 146.
2 Rex V. Brodribh, 6 C. and P. 571 ; cf. Reg. v. Coney, L. R. 8 Q. B. D. 534.
3 Dig. Cr. Laio, Art. 75. Cf. Beatty v. Gillbcaiks, L. R. 9 Q. B. D. 308
(K. S. C. 392). * Infra, p. 289.
282 Unlawful Assemblies [ch.
it came together involved neither violence nor any other
illegality. " You must look not only to the purpose for
which they meet, but also to the manner in which they come,
and to the means which they are using'." Accordingly the
idea of an unlawful assembly is not restricted to gatherings
met together for the commission of some crime (like the
poachers or prize-fighters already mentioned), or for arousing
/-, seditious feelings, or for inciting to some breach of the law
(such as the non-payment of rents). For however innocent
IN / may be the object for which a meeting is convened — e.g., to
. I support some Parliamentary measure by strictly constitutional
means — it will nevertheless become an unlawful assembly if
the persons who take part in it act in such a way as to give
firm and rational men, who have families or property to
protect, reasonable ground for fearing that some breach of
the peace will be committed'-. Mere numbers alone, it is
true, will not suffice to make an assembly unlawful ; but they
are a circumstance to be considered. And a marked absence
of women and childi-en^ from a crowd, or an unusually late
hour of meeting, or any seditious tone in the speeches, any
menacing cries or banners, any carrying of weapons, are
similarly circumstances which must be taken into account in
determining whether a meeting is such as might reasonably
inspire terror in a neighbourhood. But it is important to
notice that, if persons meet together for a lawful purpose
and quite peaceably*, the fact of their being aware that other
people, less scrupulous, are likely to disturb them unlawfully,
- > and thereby to create a breach of the peace, does not render
''their assembly an unlawful one. A man cannot be con-
victed for doing a lawful act, merely because he knows that
his doing it may cause some one else to do an unlawful act'.
1 Per Bayley, J., in Reg. v. Hunt, 1 St. Tr. (N. S.) 171, 435 (K. S. C. 388).
« Per Alderson, B., in Rej. v. Vincent, 9 0. and P. 91 (K. S. C. 391).
3 Per Bayley, J., in Rex v. Dewhurst, 1 St. Tr. (N. S.) 600.
•• As to the necessity of this qualification, see Wi.<ie v. Dunning, L. R.
[1002] 1 K. B. 1G7 ; and Dicey's Law of the Constitution, App. v.
» Per Field, J., iii Beatly v. Gillbanks, L. R. 9 Q. B. D. 308 (K. S. C. 302).
xvn] Routs and Riots 283
The alarm with which the common law viewed unlawful
assemblies naturally led to the establishment of the rule that
they may be dispersed forcibly, even by private persons
acting on their own initiative. The particular degree of
force which suc h person s wiU be lawfully justified in iisiflg,
must be determined by the particular necessities of each
individual case. But an unlawful assembly — even when
accompanied by such further circumstances as aggravate it
into a common-law riot — only amounts to a misdemeanor ;
and therefore, although blows with fists or with sticks may be
struck when necessary to suppress it, it will be unlawful to
kill any of the rioters or to employ deadly weapons. If,
however, the rioters go beyond their mere misdemeanor and
proceed to the length of some felonious violence, then even
the infliction of death will be permissible in resisting such
violence, or in dispersing or arresting the rioters, and the
act of killing will be a justifiable homicide. Inde ed, so long
as those engaged in suppressing the felonious violence act
with~3ue care, the accidental killing of even an innocent
bystander by the means lawfully employed for the suppression,
will amount only to a case of homicide by misadventure.
Closely akin to the offence of an unlawful assembly are
some other crimes of tumultuous disorder which are techni-
cally distinguished from it. Thus an unlawful assembly
developes into a Rout, so soon as the assembled persons do
any act towards carrying out the illegal purpose which has
made their assembly unlawful ; e.g., so soon as they actually
commence their journey towards the plantation which is to
be netted or the field where the fight is to come off. And
the rout will become a Riot, so soon as this illegal purpose is
put into effect forcibly' ; e.g., so soon as a hare is netted or a
bldV"is "Struck. All these three offences are misdemeanors
punishable with the common-law penalties of fine and iraprison-
1 I.e., with a mutual intent to resist any opposition: see Field v. The
Receiver, L. E. [1907] 2 K. B. 853 ; cf. 6 Cr. App. 11. 60.
284 The Riot Act [CH.
ment; to which it has now been provided by statute that
hard labour may be added'.
But from these mere misdemeanors we must pass to a
cognate but more modem and more heinous offence; which
has no specific technical name but, for distinction's sake, may
conveniently be _ termed a Riotous Asse mbly. It is the
creation of the Riot Act of Vl\b'\ which was passed in con'
sequence of the riots in many towns that followed the
accession of George I. in 1714. It establishes a wiser
mode of prosecuting grave tumults than by treating them as
treasonable " levyings of war^" Under its provisions^when-
ever an unlawful assembly of twelve or more persons do not
disperse within an hour after a Justice of the Peace has read,
or has endeavoured to read, to them a proclamation (set out
in the Act) calling upon them to disperse, they cease to be
mere misdemeanants and become guilty of a felony. The
maximum punishment for it is penal servitude for life. It is,
however, by a departure from the general rule of criminal
procedure, provided that no prosecution for this felony can be
commenced after the lapse of a year from its commission.
The Riot Act contains an express clause* indemnifying
any persons who, after the expiration of the statutory hour,
may have to use violence for dispersing or arresting the
rioters and in so doing may hurt or kill some one. Indeed,
such an indemnity was abeady implied in the provision that,
after the lapse of the hour, the rioters' offence should become
aggravated into a felony**; for this rendered justifiable the
employment of any amount of force necessary to suppress
this tumultuous felony, e.g., even the infliction of death, as
by troops firing upon the crowd. But even whilst the hour
is still unexpired the common-law right of dispersion^ still
exists, unaffected by the Riot Act and by the justice's pro-
clamation. Consequently a moderate degree of force may be
1 4 and 5 Geo. V. c. 58, s. 10. 2 1 Gpo. I. st. 2, c. 5.
8 Huimi, p. 2G8. * 8. 3. « Supra, p. 9(3. ^ Supra, p. 283.
xvii] Suppression of riots 285
lawfully used even then. An d if the rio ters s hould proce.ed
to commit any felonious violence, they may be checked with
the same extreme measures of force as if the statutory hour
were~over. But a misapprehension that the Kiot Act had
somehow impliedly modified the common-law right, did at
one time prevail; and sometimes led to grave disorder being
allowed to rage unchecked. In 1780, for instance, in conse-
quence of this misapprehension, London was abandoned to
pillage for three days, during the disturbances initiated by
Lord George Gordon \ Neither the citizens nor the soldiers
dared to fire upon the plundering incendiaries who had
become masters of the metropolis, because no magistrate was
present to " read the Riot Act." Their timidity was doubt-
less enhanced by the verdict of murder which had been given
at Edinburgh in 1736 against Captain Porteous^, and by the
indictments which had been found in 1768 against the
soldiers who fired upon the Wilkite rioters in London^ But
the result of the Gordon riots was'* to make it clear, beyond
doubt, that every citizen— and the armed soldier, no less than
any other --^as by common law the right and the duty of
usmg even deadly violence, whenever it is indispensable for
the purpose of protecting person and property against a
felonious mob of rioters. For, in Lord Mansfield's phrase,
" whether the citizen's coat be a brown one or a red," it is
equally his duty to aid the law. This principle is vividly
recognised in the present Army Regulations ; which (whilst
providing that, if a magistrate be present, the ofiicer in com-
mand of the troops should not fire without the magistrate's
orders) direct that if no magistrate be present, the ofiicer
1 See Dickens' Barnaby Rudge, chs. lxiii— lxvii. ^ Supra, p. 268.
3 Of those Wilkites, a certain stout-hearted Mr Green, with the help of
his equally courageous maidservant, slew no fewer than eighteen, when they
attacked the little alehouse which he kept. He was tried for murder, and
acquitted ; but seven of his antagonists were hanged. Knight's Popular
History of England, vi. 291.
* Lord Campbell's Lives of the Chief Justices, ch. xxxviii.
286 Sifpjyression of riots [ch. xvti
need not wait for one before taking active steps to prevent
outrage upon persons or property ^
The matter, indeed, is not merely one of right, but of
duty. It is an indictable misdemeanor for any person to
refuse to take part in suppressing a riot, when called upon to
do so by a justice of the peace or by a constable. And the
duty of the justice of the peace himself goes further. It is
incumbent on him to proceed to the scene of a riot, and to
read the statutory proclamation if the riot be such as to
require it, and to take whatever subsequent steps are neces-
sary to disperse the rioters-. If he fail to do this, he is guilty
of a criminal neglect of duty, unless he can shew that he has
at least done all that a man of firm and constant mind would
have done under the circumstances^
'■ An admirable account of the law as to the suppression of riots will be
found in the Eeport of the Committee appointed to inquire into the
Featherstone Eiots of 1893. See The Times of December 8th, 1893.
2 Bex V. Kcunett, 5 C. and P. 283 (K. S, C. L;'J(3j ; Rex v. Finney,
3 St. Tr. (N. y.j 11,
* The law of Kiot includes a remarkable instance of a Vicarious liability
— that thrown upon the inhabitants of any locality where rioters have done
damage to " buildings," to make good that damage. The particular locality
originally assigned as the unit for this purpose was the Hundred. It is now
the district — whether a borough or a section of a county — which maintains
the local police-force; and the liability is discharged out of the local police-
rate. See the Riot Damages Act, 1886 (49 and 50 Vict, c 38).
CHAPTER XVIIL
CONSPIRACY.
Conspiracy^ is the agreement of two or more persons to
effect any unlawful purpose whether as their ultimate aim or
only as a means to it. This definition presents three points
for notice: — (1) the act of agreement, (2) the persons agree-
ing, (3) the purpose agreed upon.
(1) The Agreement It must not be supposed that
conspiracy is a purely mental crime, consisting in the mere
concurrence of the intentions of the parties. Here as every-
where in our law, bare intention is no crime. " Agreement,"
as Lord Chelmsford puts it clearly, "is an act in advance-
ment of the intention which each person has conceived in his
mind^" It is not mere intention, but the announcement
and acceptance of intentions. Bodily movement, by word or
gesture, is indispensable to effect it. In order of time, it
comes intermediate between the intention and the act agi'eed
upon. But the mere fact of the parties having come to such
an arrangement suffices to constitute a conspiracy^ Hence
it is not necessary to shew that they went on to commit some
overt act towards carrying it out^; though this would be
necessary in an action of Tort for conspiracy^ It follows
1 Stephen, Hist. Gr. Law, ii. 227—229.
2 Mulcahy v. The Queen, L. K. 3 H. L., at p. 328 ; cf. Irish L. E. 1
Q. B. 12.
3 Rex V. Gill, 2 B. and Aid. 205 (K. S. C. 398).
4 Rex V. Eccles, 6 T. R. G28.
5 Mogul Steamship Co. v. McGregor, L. R. 21 Q. B. D., .t'gr Lord
Coleridge, C.J., a.t p. 549. See Pollock on Torts, ch. viii. s. 4c
288 Conspiracy— tlie jmrpose [en.
that a person may be convicted of a conspiracy as soon as it
has been formed, and before any overt act has been com-
mitted. The offence is complete as soon as the parties have
agreed as to their unlawful purpose, although nothing has
yet been settled as to the means and devices to be employed
for effecting it'. Thus if two lovers agree to commit suicide
together, but promptly think better of it, they nevertheless
are liable to an indictment for conspiracy. On the other
hand the actual accomplishment of the crime agreed upon
will not cause the original offence of conspiracy to become
" merged " in it'. Hence it would be technically possible to
bring an indictment for a mere conspiracy to commit some
grave crime, and then support it by evidence that tends to
shew an actual consummation of the crime; but judges
sternly discourage such a course as unfair to the accused '.
(2) Ttuo persons. The very name of the crime indicates
that it is essentially one of combination ; a man cannot by
himself con-spire. Moreover, the law applies here the old
doctrine of conjugal unity, reckoning husband and wife as
one person ; so that an unlawful combination by him and her
alone does not amount to a conspiracy. But though there
must be a plurality of conspirators, it is not necessary that
all should be brought to trial together. One person may be
indicted, alone, for conspiring with other persons who are not
in custody, or who are even unknown to the indictois^
(3) An unlawful purpose. The term " unlawful " is here
used in a sense which is unique' ; and, unhappily, has never
yet been defined precisely. The purposes which it comprises
appear to be of the following species : —
(i) Agreements to commit a substantive crime* ; e.g., a
conspiracy to steal, or even merely to incite some one else to
1 Hex V. Gill, loc. cit. ^ As Attempts are; p. 81.
» Reg. V. Bouhon, 12 Cox 87. •* Bex v. Khnwrdey, 1 Strange 193.
' Contrast its sense in the Vn;.,'rant Act, infra, ch. xxiii.
« licg. V. iJavitt, H Cox G76 (K. S. C. 380).
xviii] Unlaivful purposes 289
steal. This extends to all cases where it would be criminal
for any of the conspirators to commit the act agreed upon ;
even though there be in the gang other persons in whom it
would be no offence to commit it ; and to all ' crimes,' even
non-indictable ones^ ; e.g., non-payment of poor-rates.
(ii) Agreements to commit any tort that is malicious'^
or fraudulent. Some say that agreements to commit any
tort, of whatever kind, are indictable as conspiracies. But
the weight of authority seems to be in favour of limiting the
rule to torts of fraud or malice ; thus excluding, for instance,
a trespass committed hona fide by persons eager to assert
their supposed right of way. See note E, p. 525 infra.
(iii) Agreements to commit a breach of contract under
circumstances that are peculiarly injurious to the public^
(iv) Agreements to do certain other acts, which (unlike
all those hitherto mentioned) are not breaches of law at all.
but which nevertheless are outrageously immoral or else are,
in some way, extremely injurious to the public. We may
quote, as familiar instances, agreements to facilitate the
seduction of a woman* ; or to run slackly in a race so as to
enable a confederate to win his bets^; or to hiss a play
unfairly* ; or to raise by false reports the price of the Funds ^;
or so to carry on trade as to diminish the revenue^. On the
other hand, it is doubtful whether an agreement to make
loud noises for the purpose of disturbing an invalid neighbour
would be indictable as a conspiracy^ And it is now settled,
1 Reg. V. Whitchurch, L. R. 24 Q. B. D. 420. Cf. p. 281 supra ; and Lord
Campbell's "If two men agree to blow their noses together during Divine
service so as to disturb the congregation, tliey may be indicted for con-
Bpiracy," (Hansard, March 1, 1859). ^ Wright's Conspinicij, 40.
3 Vertue v. Lord Clive, 4 Burrows 2473 (K. S. C. 401).
* Rex V. Lord Grey, 9 St. Tr. 127. ^ n^j. y Orbell, 6 Mod. 42.
* Gregory v. Duke of Brunswick, 6 Man. and Gr. 205.
' Rex v. De Berenger, 3 M. and S. 67, (the trial of Lord Dundonald, the
uaval hero) ; cf. Rex v. Braihford, L. E. [1905] 2 K. B. 730.
« Or to iudemnify a prisoner's bail ; Rex v. Porter, L. R. [1910] 1 K. B. 369.
3 Rex v. Lloyd, 4 Esp. 200 ; Rex v. Levy, 2 Starkie 453.
K- 19
290 Unlaivfnl purposes [ch.
after some conflict of opinion, that there is nothing illegal in
a " knock out," i.e., a combination among dealers to abstain
from bi Iding agaiust one another, and afterwards to redis-
tribute amongst themselves the goods so underbought^ And
a combination to marry a female pauper to a pauper of
another parish in order to relieve the ratepayers of the
woman's parish, is not a conspiracy-. (Yet some combina-
tions for procurement of marriage will amount to conspiracy ;
e.g., taking a young woman of property Irom the custody of
her relations in order to many her to one of the conspirators^.)
And although all combinations " in restraint of trade " are so
far illegal as to be unenforceable*, it is now settled that they do
not necessarily constitute a criminal offence. Some, at least,
of them did so in the older common law; as, for example,
any combination of employed or employers that affected the
rate of wages, (such as that of the journeymen tailors of
Cambridge who were successfully indicted in 1721 for com-
bining to refuse to work below a certain rate of payment").
But by the Conspiracy and Protection of Property Act, 1875
(38 and 39 Vict. c. 86), no combination for the doing of any
act " in furtherance of a trade dispute between employers and
workmen " is any longer to be indictable, unless the act con-
templated be one which is in itself a crime — and moreover a
crime punishable with imprisonment — even when committed
by one pei"son alone**.
The vagueness of the definition of this fourth class of
" unlawful " purposes — to say nothing of the minor uncer-
tainties hanging over the second and third classes — is histo-
rically intelligible. For in days when our police system was
ineffective, the law felt itself dangerously threatened by any
1 Ileffer v. Martyn, 15 W. R. 390 ; ovenuling Levi v. Levi, 6 C. and
P. 239. " Rex v. Seward, 1 A. aud E. 706 (K. S. C. 405).
« Rex V. Wakefield, 2 Lewiu 1, cf. Rex v. Thorp, 5 Mod. 221 (K. S. C. 407),
* Mogul Steamship Co. v. McGregor, L. R. [1892] A. C. 25.
6 8 Mod. 11 (K. S. 0. 404); cl'. Rex v. Hammond, 2 Esp. 718
(K. S. C. 4llJ. " Ci., a^s to TorU, the Trade Disputes Act, 1900.
xvTii] Evidence of conspiracy 291
concert amongst evil-doers ; and consequently, in the seven-
teenth and eighteenth centuries, indictments against conspira-
tors were held good very readily. " A conspiracy," said even
Lord Holt, "is odious in the law'." But this vagueness
renders it possible for judges to treat all combinations to
effect any pur})ose which happens to be distasteful to them
as indictable crimes, by declaring this purpose to be "unlawful."
Owing to this elasticity in the definition of the crime, and
also to the unusually wide range of evidence by which (as we
shall see) indictments for it may be supported, there is much
justification for the language used by Fitzgerald, J., in
reference to it, in the Irish State Trials of 1867: — "The
law of conspiracy is a branch of our jurisprudence to be
narrowly watched, to be jealously regarded, and never to be
pressed beyond its true limits." For, in the prudent words of
the greatest of American judges: — "It is more safe that
punishment should be ordained by general laws, formed upon
deliberation, under the influence of no resentments, and with-
out knowing on whom they are to operate, than that it
should be inflicted under the influence of those passions
which a trial seldom fails to excite, and which a flexible
definition of the crime, or a construction that would render
it flexible, might bring into operation V
As to the Evidence admissible, the principles are just
the same for conspiracy as for other crimes. But, owing to
the peculiarity of the circumstances to which they are here
applied, there often appears to be some unusual laxity in the
modes of giving proof of an accusation of conspiracy ^ For
it rarely happens that the actual fact of the conspiring can
be proved by direct evidence ; since, naturally, such agree-
ments are usually entered into both summarily and secretly.
Hence they ordinarily can only be proved by a mere inference
1 5 Mod. 408. 2 Per MarP^all, C.J., in Ex parte BoUman (4 Cranch 127).
3 See Reg. v. Hunt, 1 St. Tr. (N. S.) 437 ; cf. 7 St. Tr. (N. S.) 472-5.
ly— 2
292 Evidence of compiracy [ch.
from the subsequent conduct of the parties, in committing
some overt acts which tend so obviously towards the alleged un-
lawful result as to suggest that they must have arisen from
an agreement to bring it about\ The circumstantial evidence
thus rendered necessary will often embrace a very wide range
of acts, committed at widely dififerent times and in widely
different places*. The range of admissible evidence is still
further widened by the fact that each of the parties has, by
entering into the agreement, adopted all his confederates as
agents to assist him in carrying it out ; and consequently that.
by the general doctrine as to principal and agent, any act
done* for that purpose by any of them will be admissible
as evidence against him. The same doctrine is, of course,
applicable to any crime where a plurality of offenders are
concerned, and is not peculiar to trials for conspiracy. But
in them it assumes unusual prominence; because, in cases
of conspiracy, an unusually long interval often elapses be-
tween the time when the common criminal purpose is
formed and the time when it is carried out.
Conspiracy is a misdemeanor; punishable with fine and
imprisonment, to which no limit is affixed. Since the
Criminal Justice Administration Act, 1914 (see p. 314,
infra), hard labour may, in all cases, be added. Moreover
a conspiracy to murder is punishable with penal servitude
for ten years, though it still remains only a misdemeanor ;
(24 and 25 Vict. c. 100, s. 4).
1 Iteg. V. Parnell, 14 Cox 50.3 (K. S. C. 412), Rev v. Parsons, 1 W. Bl.
391 (K. S. C. 408). For acts not obvious enough, see 3 Cr. App. 11. 31, 32.
2 Hex V. Hmnmond, 2 Esp. 718 (K, S. C. 411).
8 But not a mere admission uttered ; see below, p. 398.
CHAPTER XIX.
PEEJURY.
In Anglo-Saxon legal procedure, judicial oaths played a
very important part, being taken both by jurors and by
compurgators. Both these classes were punishable for any
perjuries they uttered. But not until 1613 was perjury
by a Witness declared to be punishable at common law^
Sir James Stephen recognises this decision of the Star
Chamber as " one of the boldest and, it must be added,
one of the most reasonable acts of judicial legislation on
record V
The ofie nce thus_ created was one which_cQuld only be
committed in a judicial proceeding', and by a witness who
gave false evitleiice on oath. But the law gradually came
to assume a far more complicated form. Parliament specified
various matters which were not judicial proceedings, yet in
which the telling a falsehood upon oath was to be a Perjury.
Again, some classes of witnesses came to be allowed by statute
to give evidence in judicial proceedings on mere affirmation,
without any oath ; and falsehood by them, though no Perjury,
was made as severely punishable as if it were one. Moreover,
the judges proceeded to declare that, in any matter wherein
the law required an oath to be taken, the taking it falsely
— if it were not judicial, and so not a Perjury — would be at
1 Bex V. Rowland, 3 Coke Inst. 164 (K. S. C. 415).
a Dig. Cr. Laic, 1st ed. p. 345.
3 The Keepers of the Liberties v. Gwinn, Style 336 (K, S. C. 416).
294 Definition of Pcrjiirij [ch.
least a common-law misdemeanor', punishable with fine and
imprisonment, though not with the penalties of Perjury.
Hapoily the multifarious rules on these subjects have
now betjn reduced to a comparatively simple and logical form.
The noble task of codifying our criminal law, a task attempted
by the statesmen of a generation ago^ on a comprehensive
scale but with no practical result, was resumed in 1910 by
Lord Loreburn in a more fragmentary manner but with
legislative success. For he carried the Perjury Act, 1911
(1 and 2 Geo. V. c. 6); taking full effect from Jan. 1, 1912.
It modifies not only the common law but also the provisions
of upwards of a hundred and thirty Acts of Parliament.
It creates, or continues, numerous offences of False Public
Statement. All, however severely punishable, are only mis-
demeanors. It classifies them into three groups.
(A) The grade most heinous consists of the offences
punishable with seven years' penal servitude, or with two
years' imprisonment (whether with or without hard labour),
or with a fine (whether in addition to one of the preceding
punishments or alone). Of these there are several.
(1) "Perjury"; a term which ishenecfoi'th to be restricted,
as it was originally, to the case of forensic false evidence. It
is defined — s. 1 (1) — as the crime committed when a person,
lawfully " sworn^ " as a witness (or an interpreter) in a. judicial
proceedmg wilfully makes a statement, material in that
proceeding, which he knows to be false or which he does not
believe to be true.
The term "judicial" is, however, employed here in a wide
sense which will cover not only iiiferior courts, like petty
sessions,or courts outside the common law, like a court-martial,
1 B,-(i. V. Foster (E. and R. 4.')0, K. S. C. 417). ^ c^ee p. 513 iufni.
3 The expression is here not limited to reli^'ious Oaths, but includes also
tli<3 taking of a legal Aflirmation or Declaration — s. l.") (2). But the child
who gives evidence without being sworn [infra, pp. 37o, .S86) still remains
punishable only by being sent for a month to a mere "place of detention."
xix] False oaths 295
but even many matters of mere administrative business. For
it is — s. 1 (2) — to include all proceedings " before any court,
tribunal, or person, having by law the power to hear, receive,
and examine evidence on oath^" Yet clearly the offence
will not be committed unless the evidence be actually taken
before a person who has legal power to take it. Thus when
a Registrar in bankruptcy, who was presiding over the
examination of a debtor, left the room to discharge other
duties but bade the solicitor go on questioning the debtor,
false answers given after his leaving were held to be no
perjury 2. And when justices of the peace held an informal
preliminary meeting, at which they took evidence, in order
to lighten the labour of their statutory licensing-session, a
witness who swore falsely at this unauthorised meeting was
held to have committed no offence^
(2) Similar conduct when committed, outside all judicial
proceedings, by a person who has been " required or authorised
by law to make any statement on 'oath ' [including, by s. 15,
Affirmation or Declaration] for any purpose "; s. 2 (1).
In these two crimes — A (1) and A (2) — in which, whether
in a judicial or a non-judicial proceeding, the offender has
been " sworn," it is not necessary that his statement should
be false at all. T he man becon aes puni shable simply through
utteiing an assertion, false or true^ whjch he d oes no t positively
"beli eve to be true"; s. 1 (1), s. 2 (1). For a man who^tells
t he truth quite unin tentionallY^is morally^ aMiar. Bracton
(fo. 289) enforces this principle by the grotesque illustration
^ Difficulties as to the common-law "territoriality" of criminal juris-
diction {infra, p. 411) the Act obviates by treating as perjuries punishable
in this country not only — s. 1 (4) — such as are committed here for the purposes
of a judicial proceeding in colonial or foreign territory, but also— s. 1 (5)—
all that are committed for the purposes of an English judicial proceeding,
though committed in other parts of the King's doniiuions or (if before a
British functionary) even in some foreign country.
. 2 Reg. V. Lloyd, L. K. 19 Q. B. D. 215.
s Rex V. Shaw, 6 Cr. App. R. 103.
296 Mater kdlty in fahrJioods [ch.
of a Jewish juryman who, by concurring in a verdict that
Christ was born of a virgin, committed a perjury, whilst his
Christian colleagues of course committed none.
On the other hand, a rule of peculiar, and perhaps
unfortunate*, leniency is borrowed by the Act, from the
older law, for these two important offences — A (1) and
A (2) — and also for one — viz. B — of those that are less
heinous. For in tiicsf tlirce crimes no guilt is incurred^ by
a wilful false >i;ii< incni unless it be "materjaP" to the
proceed ingTor the purpose, for which it was rnadel This
lenient old rule has often enabled witnesses, who had wilfully
given false evidence, to escape all punishment. Fortunately
the judges construe the rule very narrowly. Thus they have
■ held that the evidence need not be material to the actual
issue of the Htiiiation — a lie about his solvency by a man
'5^ who meroK 'mV' is liiin-. It' as bail is sufTicifntly material to
a criminal pi ..-■ > m i^ii^. Again, evidence may be sufficiently
"material" even thuugh it were material, not intrinsically,
but only by its facilitating the jury's acceptance of other
testimony which had an intrinsic materiality. For mere
trivial details, mentioned by a witness in giving his account
of a transaction, may become important by their leading the
jury to believe that his knowledge of the transaction is
complete, and his evidence therefore likely to be accurate.
On the same ground, all statements made by a witness as
to matters that merely affect his credibility are material^
e.g., his denial of having been convicted of a crime^ And
even if the false evidence were legally inadmissible, yet this
need not prevent its being regarded as " material " enough to
form the subject of an indictment for perjury. There is, for
1 The Indian Pcual Code shews no such leniency in Perjury (s. 191).
* licg. V. Hohlen, 12 Cox 1C7 (K. S. C. 418).
3 Cf. Roijson's Case, Cro. Car. 146.
* Reg. V. Baker, L. 11. [1895] 1 Q. B. 7'J7 (K. S. C. 419).
6 Reg. V. Lavey, 3 C. and K. 26.
xix] False Registration 297
instance, a riile^ that when a witness answers questions that
relate merely to his own credibility, his answers are to be
taken as final ; so that no other witness can legally be brought
to contradict them. Yet if, by a breach of this rule, some
second witness be permitted to give this contradiction, and
he give it falsely, he may be indicted for perjury; for, so soon
as the contradiction was admitted, it did affect the credit
given to the previous witness, and so became "material^."
The loDg-disputed question whether it is for the judge
or for the jury to say if a statement was or was not "material,"
is determined by the Act in favour of the judge ; s. 1 (6).
(3) The wilful use of a false affidavit for the purposes
of the Bills of Sale Act, 1878^; s. 2 (2).
Moreover this first grade of crimes includes two further
offences which may be committed even when no formal oath
or affirmation has been taken.
(4) False statements, whether they be "sworn" to or
not, made with reference to eff"ectiug the celebration or
registration of a mai'riage ; s. 3 (1).
(5) False statements, sworn to or not, with reference to
the registration* of a birth or of a death ; s. 4 (1).
(B) A less guilty group of offences consists of some that
are not punishable with penal servitude but only with two
years' imprisonment, or a fine, or both (s. 5).
In these no Oath has been taken. They are committed
when statements, wilfully false in a material particular, are
made in a "Statutory Declaration'"; or in some document
» Ivfra, p. 358. ^ jjg^. y. Gibbon, L. and C. 109.
3 41 and 42 Vict. c. 31. See Williams' Personal Property, Pt. i. ch. 2.
* In this offence, somewhat singularly, (1) a fine cannot be inflicted along
with penal servitude or imprisonment, but only in substitution for them;
and (2) the offender may be prosecuted either summarily or by indictment,
but in the former case his utmost punishment will be a fine of £10. It is
curious that Petty Sessions are thus enabled to try him ; for Quarter Sessions
can try neither his offence nor any other offence against the Act (s. 10).
* See the Statutory Declarations Act, 1835 (5 and 6 Wm. IV. c. 62).
298 Wilfulness [ch.
■which the offender was authorised to make, or some oral
declaration which he was required to make, by a public
general Act of Parliament.
(C) The least heinous grade is that of the offences for
which the punishment is imprisonment for a year (with, since
1914, hard labour) with or without a fine, or a fine alone.
These offences arise when a man makes (either in writing or
orally) a representation "which he knows to be false or
fraudulent" for the purpose of getting himself registered,
or of procuring a certificate of some one's being registered,
on the statutory roll of persons legally qualified to practise
a particular calling — e.g. medicine or dentistry; s. 6.
In all these various offences, from Perjury downwards,
wilfulness is an element essential to guilt. The man who mak es
an untrue assertion, but with an hones t belief that it is tr ue,
commits no crime. His clerk, say, made out the account, or
his solicitor prepared the affidavit; and then he, on reading
it over, felt no doubt of its correctness. Though due to
inadvertence or fi)rgetfulness or mistake — even careless and
stupid mistake — his untrue words were not due to wilfulness.
The case would be different if, instead of an actual belief
that his assertion was true, he had had no belief either way;
for, by making the assertion, he pledged himself that his
mind was not a blank with regard to it, so he lies "wilfully."
It may however be doubted whether such non-belief would
support a conviction for those offences — A (4) and B and C —
which the Act requires to be conmiitted not only wilfully
but knowingly.
If any one incites a person to commit either perjury or
any other offence against the Act, he commits, of course
(supra, p. 79), a misdemeanor for which he may be fined
and imprisoned with (since 1914) hard labour. But if his
incitement prove so successful that the other man does
xix] Need for Corrohoration 299
commit the offence, there is then an actual Subornation ;
and for this the suborner may be visited with as severe a
punishment as for the perjury, or other offence, itself (s. 7).
For all the above-mentioned offences a time-honoured
precaution, which the common law of Evidence imposed in
prosecutions for perjury, is perpetuated. "A person shall
not be liable to be convicted of any offence against this Act
(or of any offence declared by any other Act to be, or to be
punishable as, perjury or subornation of perjury) solely upon
the evidence of one witness as to the falsity of any statement
alleged to be false"; s. 13, Otherwise there would but be
one man's oath against another's — the statement originally
sworn to by the detendant, and, on the other hand, the
contradiction of it now sworn to by the wituess for the
prosecution. See below, p. 385.
CHAPTEE XX.
BIGAMY.
BIGA^rY^ as Blackstone tells us (4 Comm. 163). properly
signifies being married Uuice ; but in law is used as synony-
mous with polygamy, or having a plurality of wives at once.
(In 1790 a man named Miller was pilloried for having married
so many as thirty women, for the sake of getting their
money.) It originally was a purely ecclesiastical offence.
But in 1603, by 1 Jac. 1. c. 11, it was made felony. This
statute, after being repealed and re-enacted by 9 George lY.
c. 31, is now reproduced in the Offences against the Person
Act, 1861 (24 and 25 Vict. c. 100, s. 57).
The offence is committed when a person who —
(1) has previously been married,
(2) and has not since been legally divorced,
(3) goes through a legally recognised ceremony of
marriage with another person,
(4) whilst the original wife or husband is still living ;
(5) unless the original wife or husband has been
continuously absent, from the accused husband or wife,
during the seven years preceding the second marriage ;
and has not during that time been known by him or her
to be living.
1. Previously married. To sustain an indictment for
bigamy the first marriage must have been valid according to
the law of the domicil ot the parties, so far as concerns their
* See Stephen, Diy. (Jr. Law, Arts. 274—5.
CH. xx] Bigamy 301
personal capacity to marry ^ ; and according to the law of the
place of celebration, so far as concerns the ceremonial form.
Amongst possible causes of voidness may be mentioned
the fact of either party being an idiot at the time of
marriage ; or the fact of the parties being within the pro-
hibited degrees of relationship, (as formerly upon a man's
marriage with his deceased wife's sister^); or even the more
technical fact that the parties were Protestants and yet went
through a form of marriage appropriated to Roman Catholics
alone. So too, if the prisoner's first wife were actually the
wife of someone else, at the time of her marriage with him,
this marriage would necessarily be void ; and consequently
for him to proceed to marry some other woman will, though
apparently a bigamy, be really no crime. Similarly if X
marries first A, and secondly B, and then thirdly, after ^'s
death, marries G, this marriage between X and G will not be
indictable as a bigamy; inasmuch as the marriage with B
was a mere nullity.
But besides those invalid marriages which are actually
void {i.e., which may be treated as null by any court where
evidence is given of the circumstances that invalidate them),
there are others which are only voidable, i.e., the cause of their
invalidity is merely one for which a court of matrimonial
jurisdiction may set aside the marriage, if called upon to do
so whilst both the parties are still alive. But, until thus set
aside, such a marriage must be treated by all courts as valid.
Hence even a voidable marriage, (as where either party to
the marriage is sexually impotent), has always been regarded
as sufficient to render any second marriage bigamous.
2. Not divorced. It will be a good defence to a charge
of bigamy, if the prisoner prove that the first marriage had
1 Dicey's Conflict of Laws, 2nd ed., p. 613. But see p. 838 as to the
growing tendency to test Capacity by the same rule as Form.
* Now legal under 7 Edw. 7 c. 47.
302 Bifjamy [ch.
been validly dissolved' before the celebration of the second
marriage. The divorce must be a legal one ; legal, that is,
by the law of the country where the divorced parties were
domiciled at the time% If it ^ere not th us valid, the fact
that, by an error of law, theyhonestly' though mistaFenly
supposed it to be valid, will not prevent the second marriage
ofeither of them from being criminal. But if valid under
that country's law, a divorce will be effectual here as a
defence to a charge of bigamy, even though the gi-ound on
which it was granted was one that would not have enabled
the parties to obtain a divorce in this country, had they then
been domiciled here. And even in a case where an English-
man, at a time when he still was domiciled in England, had
obtained a divorce in Chicago, and afterwards had re-married
there, Butt, J., expressed (in ray hearing) some appre-
hension — perhaps groundless — that that divorce, though
invalid in England, might nevertheless bar, even here, an
indictment for bigamy; as both the divorce and the re-
marriage took place in the same country.
3. Legally recognised ceremony.
Bigamy, like homicide, forms one of the rare exceptions
to the principle that criminal jurisdiction is purely territorial.
For, if the person accused be a British subject^, it is im-
material in what territory (even though it bo outside the
British dominions altogether^) the second marriage took
place; and he may be tried in any part of the United
Kingdom where he may be in custody. But a person who
is not a subject of His Majesty cannot thus be tried here
for a bigamy committed outside the United Kingdom.
The second marriage, (the alleged crime), must have
been in a form reco-uiscd by the law of the place where it
1 A " decree nisi" is not enough ; a point too often overlooked,
2 Le Mesurier v. Le Mesurier, L. li. [1895] A. C. 617.
8 See tlie iiroviso in s. 57.
* Earl liusiell's Case, L. R. [1901J A. C. 4i6.
XX J Bigamy 303
was celebrated\ But any form, legally recognised there, is
sufficient. It is enough that it would have been good on
some occasions; notwithstanding its being one which could
not have been effectual on that particular occasion, even had
the guilty person not been already mamed. Thus it is no
defence for a man, accused of bigamy, to shew that he is a
Protestant, and that the form of marriage which he went
through at his second wedding Avas one that is valid for
Catholics alone. Nor is it any defence to shew that the
parties were too near akin to be able to contract a valid
marriage. For the ground upon which bigamy is punished
is the broad one of its involving an outrage upon public
decency by the profanation of a solemn ceremony.
4. Original spouse still living. The prosecution must
establish the fact that the prisoner's original husband or wife
was still living at the time of the second marriage. Still it
is not necessary that this should be she^vn by the direct
evidence of some one who can speak to having seen that
person alive at that date. It may be sufficiently estab-
lished by mere probable inference from circumstances; e.g.,
from the fact that the prisoner's first wife was alive and well
a few days before his second marriage. But the fact of her
having been alive merely within the often-cited period of
" seven years " before that mamage, will often be utterly
insufficient to justify an inference that she was still alive
when it was solemnised. For the effect of shewing that she
was alive at ^ome time within these seven years is merely
to neutralise the presumption" of her death. It does not
reverse it, and so throw back the burden of proof upon the
prisoner. In other words, it simply releases the jury from
any technical presumption ; and sets them free to look to the
circumstances of the particular case. (From the woman's
age and health, the climate of the country in which she
1 Reg. V. Allen, L. R. 1 C. C. R. 3G7 (K. S. C. 423). ^ j,yVrt, p. 329.
304 Seven years' Absence [ch.
resided, the period which has elapsed since she was heard of,
and simihir circumstances, they must draw an inference as to
whether she did or did not survive until the time when her
husband married again ^)
5. Not absent for seven years. It is provided by the
statute'* that it shall be a conclusive defence to shew that the
prisoner's original spouse (1) had been continuously absent
from the prisoner during the seven years preceding the second
marriage, and (2) had never been heard of by the prisoner
meanwhile. It does not seem to be necessary that the
prisoner should give express proof of both the elements
requisite to this defence. For if his wife's continuous
absence for seven years be proved, this will suffice to raise a
primd facie presumption of her not having been heard of
throughout that periods But of course the prosecution may
rebut this presumption, by shewing that within the seven
years the fact of her being alive had become known to the
prisoner. Yet, even when this has been she\vn, the jury will
still have to determine the further question whether or not
the wife remained alive down to the actual time of the
prisoner's second marriage ; a question which must be deter-
mined by consideration of the circumstances of the case, in
the manner which we have already suggested.
We now come to a difficulty about which there have been
keen controversies. If it be shewn (1) that the prisoner's
wife was alive at the time of his second marriage, and (2) that
at some time during the seven years preceding the second
marriage he had known of her being still alive, must he
necessarily be convicted ? What if, subsequently to his last
hearing of her as alive, he had received authoritative, though
mistaken, assurance that she was dead ? So far as the mere
1 Reg. V. Lumley, L. li. 1 C. C. li. lUG.
2 24 and 25 Vict. c. 100, s. 57 ; cf. 1 Jac. I. c. 11, 8. 2.
» lieg. V. Curgerwen, L. K. 1 C. C. R. 1 {K. S. C. 426).
xx] Evidence of Bigamy 305
language of the statute goes, he undoubtedly has satisfied
its definition of bigamy. Yet he may have done nothing
which he did not honestly believe, and reasonably believe,
to be perfectly lawful. For a long time judges differed in
their decisions as to whether such a belief would or would
not be a good defence for the re-marrpng. But in 1889 it
was decided in the Court for Crown Cases Reserved, by nine
judges to five, that the general principle of criminal law,
that a person cannot be guilty of a crime unless he has
a guilty mind, is so fundamental that it must override the
mere omission of the statute in not expressly including
a mental element as an essential requisite in the offence
of bigamy^ Accordingly the majority of the court held that
the prisoner's bond fide belief, on reasonable grounds, that his
wife was dead, would excuse his re-marrying even within the
seven years. In the United States the opposite view prevails.
As regards the evidence which will be available at the
trial, it should be noted that, although the husbands or
wives of accused persons were excluded by the common law
from giving evidence at the trial of the accusation, Parliament
has greatly relaxed this exclusion. The Criminal Evidence
Act, 1898 -, now admits the husband or wife to give evidence
foi^ a prisoner ; and, if the accusation be one of Bigamy, the
husband or wife may, by the Criminal Justice Administra-
tion Act, 1914^, also be called even for the prosecution, and
without the consent of the person accused.
1 neg. V. Tohon, L. E. 23 Q. B. D. 103 (K. S. C. 15). Where, under
a mistaken (but reasonable) belief that his first marriage had been to a
married woman, a man re-married, Horridge, J., applied this principle
{Rex V. Cunliffe, Manchester Assizes, Feb. 19, 1913); as had been done
in Canada in Rex v. Sellurs (9 Can. Cr. Ca. 153),
2 Gl and 62 Vict. c. 36, s. 1. Infra, p. 404.
3 4 and 5 Geo. V. c. 58, s. 28 (3). Infra, p. 40-'}.
K. 20
306 Punishment of BUjaniy [cu. xx
Bigamy is a felony, punishable with penal servitude for
not more than seven years or less than three, or with ini-
prisuninent (with or without hard labour) for not more than
two years. It is, like manslaughter, a peculiarly " elastic "
crime ; the degrees of guilt varying, according to the degree
of deceit practised, from an oftence closely approximating in
heinousness to a rape, down to cases in which the parties'
only guilt consists in their having misused a legal cere-
monial for the pui'pose of giving a decent appearance to
intercourse which they knew to be illicit. Indeed there may
even be cases of an undoubtedly criminal bigamy where
there is no moral guilt at all. For both parties may have
been misled by some very natural misapprehension of law.
The great, and unhappily increasing, dissimilarity between
the matrimonial laws of civilised nations has made it but too
easy for a man and woman to be husband and wife in one
country and yet not so in another.
The other party to the bigamous man-iage, if aware, at
the time, of its criminal character, became guilty of aiding
and abetting the crime; and accordingly may be indicted
for bigamy as a principal in the second degreed On the
other hand, as Mr Justice Wright has pointed out'', when
a woman, who reasonably believes her husband to be dead,
marries a man who knows (but conceals) the fact of his being
still alive, this man will escape all punishment ; for the
woman committed no crime, so he cannot be treated as an
accessory.
It may be added that where a bigamy is committed, but
the other party to the second marriage has no knowledge of
its invalidity, she or he may, after the criminal proceedings,
bring a civil action to recover damages for the tort of Deceit,
which the prisoner committed in pretending to be free to
marry''.
> Reg. V. Braxcn, 1 C. and K. 144.
* 'Draft Criviinal Code for Jamaica, p. ll'i,
" Cliitty's General Practice, p. xviii.
CHAPTER XXL
LIBEL.
A LIBEL is such a writing or picture as either defames
an individual (" private " libel) or injures religion, govern-
ment^ or morals (" public " libel).
We have already seen^ that most crimes are also torts.
But the most conspicuous illustration of this is aiforded by
the defamatory, or private, Libel. It is a crime which
not only is a tort, but is often treated as such in actual
practice. For (1) it is only a misdemeanor, and accordingly
not affected by the rule which delayed, and therefore usually
frustrated, civil proceedings for crimes that were of the degree
of felonies. And again, (2) it is a crime which, unlike most
others, is often committed by persons whose pecuniary means
are large enough to enable them to pay whatever compensa-
tion a civil court may award. Libels, indeed, are much more
frequently followed up by civil than by criminal proceedings.
For the judges of the present day desire to see indictments
for defamation restricted to those cases in which the libel is
aggravated either by its intrinsic gravity or by its obstinate
repetition.
Hence a detailed exposition of the general principles of
the law of libel should be sought rather in books on Torts*
than in those devoted to criminal law. It will, therefore,
probably be sufficient for the purposes of the present volume
if we indicate very briefly the fundamental principles, which
are common to both the civil and the criminal law of libel,
1 E.g., L51 C. C. C. Sess. Pap. 459; (a.d. 1909). 2 Supra, p. 20.
3 See Pollock on Torts, ch. vii.; Bigelow on Torts, 7th ed. eh. vir.
20—2
308 Malice in Libels [ch.
and then ox])l;iin the distinguishing features of the latter
aspect of this \vi-ong^ The following principles are common
to both its aspects : —
(I) Anyone who publishes a defamatory document con-
cerning another person, so as to tend to bring hira into hatred ^
contempt, or ridicule, is guilty of " publishing a defamatory
libeP." This "document' may consist of either a ^vritten or
a pictorial* composition {e.g., even of an effigy suspended
from a mock gibbet).
(II) The publication need not be "malicious" in the
popular sense of that word, i.e., it need not be due to spite,
or, as it is called, "express malice." It is true that the Libel
Act, 1843, when dealing with criminal libel, does in terms
restrict the offence to " malicious publication." But the law
draws from the fact of publishing such matter, without any
of the recognised legal grounds of excuse, an absolute pre-
sumption that the publication was malicious. Hence it is
now settled' that it is not even necessary for the prosecutor
or plaintiff to make in his pleadings any formal allegation
that the libel was published maliciously. The law of libel
has thus, at last, worked itself free from entanglement with
the old fictions of a "constructive malice," which sometimes
(as in the case of ardent social or political reformers) was
— in Lord Macaulay's words — "only a technical name for
benevolence ^"
» See Stephen, Hii^t. Cr. Law, ii. 298—395; Stephen, Dig. Cr. Law,
Arts. 96, 179—183, 291—303.
2 In one of the United States, it has thus been held libellous to describe
a man as " a Tory." With emphatic rhetoric the Supreme Court of Georgia
thus ruled the point: "When the name of Washington shall grow cold to
the ear of the patriot, when the poles of tlie earth shall be swung round to
a coincidence with the equator, then and not till then will it cease to be
a libel" to call a man a Tory; Gj7cs v. The State, 6 Cobb 284, a.d. 1849.
3 See Rerj. v. Munslow, L. R. [1895] 1 Q. B. 758 (K. S. C. 432).
* .}romon V. Tussau(h, L.n. [1894] 1 Q. B. 671.
t lUy. V. Munslow, supra. ' Miscell. U'oika, iv, 189.
xxi] Privileged Libels 309
(III) Everj^one who circulates, or authorises the circu-
lation of, a libel is primd facie regarded as publishing it\
But if he can be shewn 'to have been a mere unconscious
instrument, (as, for instance, is generally the case with a news-
boy), this will be a sufficient defence'^; some mental element
being necessary to constitute such an act of " publication " a ;
will render the doer responsible for it.
(IV) The unlawful meaning which the document is
alleged to have conveyed must be one: —
(i) which it was reasonably capable of convejdng to
ordinary people of the class addressed', and
(ii) which it actually did convey to the particular
person to whom it was published.
(V) There are certain occasions upon which the publi-
cation of (what would on ordinary occasions be) a libel
becomes privileged. Such a privilege may be either,
(a) Absolute ; e.g., for publication in a House of Parlia-
mont^ or by its order; and also for publication in a Court
of Justice^
(6) Qualified; i.e., arising prima facie, but ceasing if
the prosecution shuw that the publication was made with
a spiteful motive, or, in other words, that there was " express"
malice on the part of the defendant. A privilege of this
qualified character is conceded to matter that is published
under a legal or even a social duty ; or as a fair comment
upon a subject of public concern*; or for the protection of
any of the interests of the person publishing it, (or, probably
^ Pollock on Torts, ch. vii. s. 2.
* Emmem v. Pottle, L. E. 16 Q. B. D. 354.
^ Capital and Counties Bank v. Ilenty, L. E. 7 A. C. at p. 776.
* Rex V. Lord Abingdon, 1 Esp. 225 (K. S. C. 440).
^ Watson V. Jones, L. R. [1905] A. C. 480.
" Thomas v. Bradbury, L. E. [1906] 2 K. B. 627.
310 Criminal Libels [ch.
even of the interests of the person to whom it is published');
and to fair and accurate reports of Parliamentary or judicial
proceedings"; and also, by statute^ to such fair and accurate
reports of public meetings, or of open sittings of public
bodies, as are published in a "newspaper" and relate to
some matter of public concern.
(VI) It is the function of the judge to decide (i) whether
the document is reasonably capable of bearing the alleged
defamatory meaning ; (ii) whether the occasion was privileged ;
and — where there exists a qualified privilege — (iii) whether
there is any evidence of express malice. All other matters
— including now even the fundamental question whether the
document is or is not a libel ^ — are left to the jury.
But though the criminal and the civil rules as to cases of
libel are, fundamentally, thus similar, they differ as regards
some few minor points. These are the following : —
(1) No civil action will lie for a libel unless it has been
-^Jr , published to some tliird person; since the sole object of such
an action is to secure to the plaintiff compensation for the
^<Xs wrongful loss of that esteem in which other people formerly
held him'. Hence a defamatory letter addressed to the very
person defamed will not, in the ordinary course, be action-
able; though a defamatory post-card addressed to him will
be. But the reason for the criminal prohibition against
libels is, on the other hand, their tendency to provoke the
libelled person into committing a breach of the peace ; and
» Coxhcad v. Richards, 2 C. B. 569.
5 Usill V. Ilales, L. R. 3 C. P. D. 319 (K. S. C. 442).
^ 51 and 52 Vict. c. 64, s, 4.
* See Lord Campbell's Lives of the Lord Chancellors, ch. clsxviii. , aud
May's Constitutional History, ii. 2')3— 2f);!, as to the historic controversy,
during 1752 — 17'Jl, on this important constitutional quebtion, ultimately
settled by Mr Fox's Libel Act, 32 Geo. III. c. 60.
"> Barrow v. Llewtllin, Hobart 62 (K. S. C. 437).
xxij Libels that are True 31 1
this tendency is naturally greatest when it is directly to
himself that the defamation is addressed. Accordingly a
publication to the actual person defamed is quite sufficient
to support an indictments
(2) The truth of the matter complained of has long
been a good defence in a civil action for libel ; for it shews
that the plaintiff has no right to that reputation which he
claims compensation for being deprived of. But the common
law did not regard this as being any defence to criminal'^
proceedings; for the truer the charge, the more likely was it
to cause a breach of the peace. An honest man may often
despise calumnies ; but a rascal is sure to resent exposure.
Hence in criminal courts it used even to be a maxim that
"the greater the truth, the greater the libel." But this
difference between the civil and criminal rules has been
almost wholly removed by Lord Campbell's Act, (6 and 7 Vict.
c. 96), which permits the truth of a private libel to be
a valid defence to criminal proceedings for it. This_^er-
mission is, however, subject to a proviso that the defendant
must further allege expressly, and prove, that it was for the
public benefit that the matter in question should be made
known. The existence of this proviso makes it possible to
repress the publication of statements which, though quite
true, are objectionable, whether on grounds of decency, or as
being disclosures of State secrets, or as being painful yet
needless intrusions into the privacy of domestic life. It may
be for the public benefit to make it known that a man is
suffering from an infectious fever ; but not that he. is suffer-
ing from heart-disease, or from some carefully concealed
1 Clutterhuck v. Chaffers, 1 Starkie 471 (K. S. C. 438). Cf. 4 Bl. Comm. 150.
It is often said that when the publication is, thus, only to the jDerson libelled
the indictment must expressly allege an intent to cause a breach of the
peace. But it would seem that this is not really necessary ; for in Eeg.
V. Adams (L. R. 22 Q. B. D. 66) the count contained no snoh allegation.
2 Hobart 253 ; Moore 627 ; 5 Coke Eep. 125. Cf. the similar rule in the
recent Italian Penal Code, Art. 394.
v^
312 Oral utterances [cii.
deformity, (like that club-foot, the consciousness of whose
existence embittered the whole life of Byi'on).
(3) There is no civil action for libelling a class of
persons, if, as must usually be the case, its members are
too numerous to join as plaintiffs in a litigation. But since,
technically speaking, it is not by the persons injured, but by
the King, that criminal proceedings are earned on, an indict-
ment will lie ; provided only that the cjas s defa imed be not
an indefinite {e.g., "the men of science," "the Socialists")
but a definite one, {e.g., " the clergy of the diocese of
Durham\" " the justices of the peace for the county of
Middlesex^").
(4) No civil action for a libel upon a person deceased
has ever been brought by his repi-esentatives' ; for. the dead
have no legal rights and can suffer no legal wrongs. But
in tliose extreme cases where the libel, under the guise of
attacking the dead man, attacks living ones by bringing his
posterity into contempt or hatred, they — like any other
class of persons who ai-e injured by a libel — may obtain
protection from the criminal law^ Yet to extend that pro-
tection to the case of ordinary attacks upon the reputation
of persons deceased, would be to impose an intolerable re-
straint upon the literary freedom of every writer of modern
history * ; especially as the lapse of time might have rendered
it impossible for him to obtain legal proof of the truth of
his statements, and as that truth, moreover, even if proved,
might not be of sufficient public moment to constitute
' Rex V. Williams, 5 B. and Aid. 595. Cf. The Case of the Jews,
2 Swanston 503.
» Rex V. HoUnway, cited 5 B. and Aid. 595.
^ Reg. V. Laboiichere, L. R. 12 Q. B. D. at p. 324.
■• See Rex v. Topham, 4 T. Ti. 130; Rerj. v. Fnxor, 3 Times L. R. SfiO;
Rex V. Hunt, 2 St. Tr. (N. S.) 69, for libelling Geo. III. in Geo. IV.'s reign.
As to blackmailing by threats to libel the dead, see 4 and 5 Geo. V. c. 5S, s. 35.
6 See however the careful provision in the Italian Penal Code (Art. 399)
to make i ossible such prosecutions.
xxi] Punishment of Libel 313
a statutory defence to criminal proceedings. Historical
criticism may, no doubt, cause much pain to the descendants
of the person criticised ; but mere mental suffering never
suffices, by itself, to render an act wrongful.
(5) In civil actions, a master is liable for all libels-
published by his servants in the course of their employment.
But in criminal cases, it is^ a good defence for him that the
libel was published neither by his authority nor through his
negligence. Cf. p. 45 supra.
Besides differing thus in their treatment of libellous
writings the two systems also differ in theii' treatment of the
cognate subject of unlawful oral utterances. These never
create, as a defamatory libel does, a twofold liability, at once
civil and criminal. For if the spoken words are merely
Slander, I.e., if they only defame private persons, a civil action
will lie in certain grave cases^ but an indictment will not
lie' (except in those rare instances where the words tend
quite directly to a breach of the peace*, as when they convey
a challenge to fight). And, conversely, if the oral words are
blasphemous^ or obscene, or seditious, or reflect on the
administration of justice, an indictment can be brought (as
for similar written words), but no civil action can.
Libel is a misdemeanor, punishable with fine and im-
prisonment. In the case of seditious, blasphemous, and
other public libels there appears to be no limit to the period
1 6 and 7 Vict. c. 96, s. 7. ^ See Pollock ou Torts, ch. vii. s. 1.
3 But the Indian Penal Code (s. 499) allows criminal proceedings.
* Reg. V. Laiirjleij, 6 Mod. 125 (K. S. C. 437). In London, 2 and 3 Vict.
c. il makes such words in a " public place" punishable summarily
5 As to the present uncertainty as to what constitutes an indictable
blasphemy, see Stephen, Dig. Cr. Law, Art 179, and Lord Coleridge's
Bumming up in Reg. v. Ramsaif, Cababe and Ellis 126.
314 Punishment of Lihd [en. xxi
of imprisonment' ; and similar words uttered orall\' are
punishable similarly. But in the case of defamatory libels,
the term has been restricted by statute to two years, when
the libel was published with a knowledge of its being
false; and, in all other cases of defamatory libels, to a
single year'-.
Until the Criminal Justice Administration Act, 1914,
hard labour could not be imposed in any case of Libel,
whether defamatory or public. But for all libels, except
seditious ones, it now can be. For that Act provides, s. 16 ( 1),
that any sentence of imprisonment without option of fine
may, in the discretion of the court, impose hard labour,
" notwithstanding that the offence is an offence at common
law, or that the statute under wliich the sentence is passed
does not authorise the imposition of hard labour." See
p. 483 infra.
^ In tlie case of seditious libels or utterances, the form of imprison-
ment must be only that of offenders of tiie jimt divibiou (40 and 41 Vict.
c. 21, s. 40).
* 6 and 7 Vict. c. 'J6, ss. 4, 5.
CHAPTER XXII.
OFFENCES AGAINST INTERNATIONAL LAW.
With a view of discharging those duties to the other
nations of civilised mankind which are imposed upon us
alike by political prudence and by International Law, our
criminal law has made provision for the punishment of all
persons who (1) violate the rights of the ambassadors sent
to us by foreign nations, or (2) commit acts of piracy,
or (3) violate the neutrality due from us to belligerent
nations.
(1) As regards offences against the privileges of am-
bassadors, it is unnecessary to add to the brief mention that
has already been made of the statute of 1708^ which makes it
a misdemeanor (with remarkable peculiarities of procedure)
to execute even a judicial civil process against the person or
goods of any ambassador or his registered servant.
(2) Of piracy according to International Law, (or "piracy
jure gentium") we obtain a good example when the crew of
a vessel mutiny, and seize the ship. But, old and famous
though the crime is, there is not, even now, any authoritative
definition of it^ Clearly it is not every felony that becomes
piracy by being committed on board ship; for violence is
essential, so mere larcenous pilfering would not suffice. The
Judicial Committee of the Privy Council has endorsed^ the
^ 7 Anne, c. 12 ; supra, p. 94.
* Stephen, Hist. Cr. Law, ii. 27 ; Dig. Or. Law, Arts. 108—122.
^ In Att. Gen. oj Hong Kong v. Kwok-a-Sing, L. R. 5 P. C. 199.
316 Piracy [ch.
rule, laid down by Sir Charles Hedges so long ago as 1696',
that j)iracy is "only a sea term for robbery." But this is
not" absolutely precise ; for an unsuccessful though violent
attempt at pillage would be treated as a piracy if committed
at sea; although on land it would not be a robbery, but
only an assault with intent to rob. Moreover some menacing
thefts which b}' English law do technically amount to
robberies would not be regarded as piracy if they were
committed at sea. Probably the best approach to a correct
definition is "any_ g-rmed violence at sea which is not a lawful
act of Wa r." For a pirate must be one who may be taken to
be a source of danger to the vessels of all nations ; and there-
fore those who act solely against a particular belligerent,
and in the interests of the Power that is at war with it, are
not pirates, even though they go beyond their commission.
Nor will they be, even though their action be spontaneous
and without any commission at all from the Power (whether
a recognised State or not) whose interests they serve". But,
whatever be the precise limits of piracy j«re gentium, it is
at least clear that nothing that does not fall within them
would be taken account of, as a piracy, by the common law.
But by statute it has further been made piracy : —
(a) For any British subject to commit hostilities at
sea, under the commission of any foreign Power, against
other British subjects*;
(b) For any British subject, or any resident in the
British dominions, to take part in the slave trade'.
Every piracy, whether of the common-law form or of the
statutory, is a felony, and usually punishable ^vith penal
servitude for life*. But if accompanied by any act that
' llrx V. Dnwi^on, IB St. Tr. 454.
2 Cf. Oppenheim's International Law, 2nd ed., T. 340 — 348.
3 In re Tivnun, 5 B. and S. at p. 680. Cf. L. R. [190f»] 1 K. B. 78-5.
* 11 and 12 Wm. III. c. 7, s. 7. ^^ .'"> Geo. IV. c. 113, s. 9.
8 1 Vict. c. 88, 8. 1, and the Penal Servitude Acts.
xxii] Foreign Enlistment 317
may endanger life it is punishable with death\ It is an
offence now almost unknown in our courts ; no case having
occurred since 1894, and that only an unimportant one''.
(3) Previously to the nineteenth century, there was no
hindrance in the way of an Englishman's following the pro-
fession of a soldier of fortune wheresoever he chose ; saving
only the claim of the King of England to his continued
loyalty, and perhaps to his services if they should be needed*.
The former right of the King was considered to be in jeopardy
in James I.'s reign, and an Act (3 Jac. I. c, 4) was passed
with the object of preventing subjects of the Cro\\n from
being contaminated in religion or loyalty by the Jesuits
whom they might meet in Continental armies^. The second
right appears to have been in the mind of the framers of
the statute passed in 1736 ^ now repealed, which made it
felony, without benefit of clergy, to enlist in the service of
any foreign prince ; an enactment which seems, however,
to have remained a dead letter. But the modern develop-
ment of International Law created a new reason for similar
prohibitions ; and in the nineteenth century Foreign Enlist-
ment Acts were passed with the object of preserving England's
neutrality, by forbidding her subjects to give any assistance
to foreign belligerents. In treatises on International Law*
the student will find narrated the growth of the principle of
Neutrality, as determining the course of conduct to which
nations are now bound to adhere, whenever a condition of
war exists between Powers with whom they themselves are
at peace. The ancient powers of the Crown in England
being insufficient to enable it to prevent its subjects from
1 1 Vict. c. 88, s. 2.
2 Criminal Statistics of England and Wales, issue of 1901, p. 29.
3 See Stephen, Hist. Cr. Law, iii. 257—262 ; Dig. Cr. Law, Arts. 104—107.
* See the preamble to the Act. ^ 9 Geo. II. c. 30.
* See Dr T. J. ha\fTence's Principles of International Laic, pp. 542 — 556 ;
Oppenheim's International Laic, 2nd ed., ii. 347 — 377.
318 Foreign Enlistment [ch.
committing acts which might be at variance with the modem
conceptions of the obligations of neutrality, Parliament found
it necessary to make participation in foreign hostilities a
criminal offence. The first Foreign Enlistment Act was
passed in 1819\ to restrain outbursts of sympathy with the
revolt of Spain's South American colonies against her.
During the American Civil War, it proved insufficient to
prevent the traffic between English shipbuilders and the
Confederate Government ; and was accordingly replaced in
1870 by a more stringent enactment-. Under this one, the
chief offences forbidden are : —
1. To enlist oneself or others — without a licence from
the Crown — for service under a foreign State which is at war
with a State that is at peace with us^.
2. To equip, build*, despatch, or even agree to build,
within British dominions — without licence from the Crown —
a ship with reasonable cause to believe that it will be
employed in such service as aforesaid^
3. To fit out, within the British dominions — without
a licence from the Crown — any naval or military expedition
to proceed against the dominions of any State that is at peace
with us*.
Each of these offences is a misdemeanor, punishable with
a fine and with imprisonment for a period not exceeding two
years, with or without hard labour. All ships or munitions
of war in respect of which the offence is committed are to be
forfeited to the Crown.
The student must bear in mind that, though it is some-
times said that " International Law is part of the laws of
1 59 Geo. III. c. G9. - 33 and 34 Vict. c. 00.
' a. 4. This is an offence whether committed within or even without
the British dominions.
* The previous Act (of 1819) forbade nothing short of the ultimate
"equipping, fitting-out, or arming" of a ship. See the case ot the
AleJMudra, 2 H. and C. 431. ' Ibid. s. 8.
« Ibid. 8. 11; see Eej. v. Jameson, L. 11. [1890] 2 (j. B. 425.
xxii] Blockade-running 319
England," this is true only in that loose historical sense in
which the same is also said of Christianity. But an indict-
ment will not lie for not loving your neighbour as yourself.
Equally little will it lie for trading in contraband of war, or
for the running of a blockade. Both these acts are visited
by International Law with the penalties of confiscation ; but
neither of them constitutes any offence against the laws
of England, or is even sufficiently unlawful to render void
a contract connected with it\
1 See Ex parte Chnvasse, 4 De G. J. and S. fi55. To trade with persons
domiciled amongst a nation with whom our oion country is at war seems at
one time to have been regarded as an indictable misdemeanor at common
law ; 1 T. E. at p. 85. In 1914 it was made a statutory misdemeanor,
punishable with seven years' penal servitude, for any one thus to trade with
the enemy ^' dixxxin^ the present luar" except in such transactions as might
be permitted by royal proclamation ; (4 and o Geo. V. c. 87). The offender
might also be prosecuted summarily, instead of by indictment : but the
maximum punishment would then be a year's imprisonment with hard
labour and a fine not exceeding £500. But every prosecution under this
statute must have the consent of the Attorney-General.
CHAPTEK XXIII.
OFFENCES OF VAGRANCY.
The historical interest and the juridical anomalies of the
Vagrancy Act are such as to justify a fuller reference to it
here than the importance of the offences created by it might
seem to call for. An experienced observer of criminal pro-
ceedings has pronounced it, somewhat sweepingly, to be
" the most unconstitutional law yet lingering on the statute
book^" It is a survival from a long series of penal enact-
ments — enforced by imprisonment, flogging, enslavement,
and death — whereby the legislature strove to grapple with
the difficulties created by the steady increase in the numbers
of the migratory population. Legislation for this purpose
began so far back as 1888, when the dearth of labourers,
caused by the devastations of the Black Death in the period
1348—1369, had produced competition amongst employers
and, consequently, many migrations of labourers towards the
districts where they might best hope to avail themselves
of this competition. The legislature interposed in order to
check both the rise of wages consequent upon all such free
exchange between labour and capital, and also some more
genuine evils, arising from the mendicancy of such of the
wanderers as did not obtain employment, and the dishonesty
of many of them who did not even seek for it. To this latter
class of vagrants, a dangerous addition was made in the
reign of Henry VIII. by the arrival of the first Gipsies.
^ beijcuiit Cox'b Frincn)ic6 uj runi.->limeiU, p. 212.
CH. xxiri] The Vagrancy Act 321
The establishment under Elizabeth of a compulsory parochial
assessment, for the relief of the destitute, naturally led to
the imposition of further penalties to protect parishes from
the arrival of strangers who might become a burden on the
local assessment. The modern reform of our industrial legis-
lation and of our system of poor-relief has now swept away
almost the whole of the long series of enactments which
four centuries had accumulated. But there still remains the
Vagrancy Act, 1824 ; whose provisions might be unintelligible
if we did not regard them as a supplement to the old Poor
Law, intended to prevent indigent persons from wandering
out of their parishes, and to restrain the offences likely to
be committed by such wanderers. Offenders against the
Act (5 Geo. 4. c. 83) are of three classes ; according to
the maximum punishment which can be inflicted upon
them. Every case is tried at Petty Sessions ; though in
cases of the third class, as will be seen, the sentence is not
pronounced there.
I. The first class consists of the persons who are guilty
of the more trivial offences of vagrancy. Typical instances
are: —
(1) A person whose wilful neglect to work causes him
or her, or any of his or her family, to become chargeable
to the parish.
(2) A person wandering abroad to hawk goods with-
out a pedlar's licence.
(3) A person begging in any public place, or en-
couraging any child to do so.
All these are technically denominated by the Act "Idle
and disorderly persons." They are liable to a punishment of
imprisonment for not more than a month with or without
hard labour, or a fine not exceeding £5.
s. 21
322 Rogues and Vagabonds [ch.
II. The second class consists of the persons who are
guilty of the more grave forms of vagrancy. The following
instances may be cited : —
1. A person convicted for a second time of any of the
offences of the former series.
2. A person running away and leaving his wife or child
chargeable to the parish,
3. A person endeavouring to procure alms by exposing
deformities or by making fraudulent pretences.
4. A person found in a building, or inside an enclosed
yard or garden, for any unlawful (i.e., criminal^) purpose.
5. A person gaming*, in an open and public place,
at some game of chance, with cards, coins, or other in-
struments'.
G. A person telling fortunes; or using any subtle craft,
by palmistry or otherwise, to deceive*, e.g., casting astro-
logical nativities.
7. A person wandering abroad, without visible means
of subsistence, and lodging in unoccupied buildings or under
a tent or in a cart, and not giving a good account of him-
self. Between eight and nine thousand persons annually
are convicted of thus " sleeping out," as this otience is
commonly designated.
^ Not mere immorality; Haynes v. Stephenson, 25 J. P. 329.
2 See above, p. 47 n.
' This does not cover the depositing of money on a bet made with
a person standing in a street to receive bets upon a horse race ; Redtoay
V. Farndale, L. R. [1892] 2 Q. B. 309. And a coin does not become an
"instrument" by being used for tossing up; Watson v. Martin, 34 L. J. R.,
M. C. 50. The clause of 1824 is strengthened by 36 and 37 Vict. o. 38
8. 3.
* Deception by mere avowed legerdemain is not included; Julmaon v.
tenner, 33 J. T. 740.
xxiii] Incorrigible Rogues 323
8. A male person (a) knowingly living, wholly or in
part, on the earnings of prostitution, or (/3) persistently
soliciting, in public, for immoral purposes. This much-
needed prohibition of the calling of a souteneur was added
by the Vagrancy Act, 1898 (61 and 62 Vict. c. 39). In
1900, 440 men were punished under it.
All these are styled " Rogues and Vagabonds." (Both
words originally meant simply "wanderers," the "rogues
forlorn " of King Lear ; from the Latin rotare and vagaH.)
They may be punished with imprisonment up to three
monthsS with or without hard labour, or with a fine not
exceeding £25.
III. The third class consists chiefly of those who have
been twice convicted — or who have resisted arrest when
apprehended on even a first charge — of an offence of the
second series". Such a person is technically an ''Incorrigible
Rogue." The procedure is curious. The offender, as in
the two previous classes, is convicted at a court of Petty
Sessions ; but this court can only commit him to imprison-
ment (with hard labour) until the next court of Quarter
Sessions. That court will receive the conviction, and with-
out further accusation or evidence will pass the sentence
upon it ; which may extend to a year's further imprisonment,
with hard labour ; and in the case of a male, the prisoner
may also be ordered to be whipped.
Of recent years there has been a large increase in prose-
cutions under the Vagrancy Act ; e.g. in 1900 the convictions
for begging, and for sleeping out, were less than half of what
they had risen to by 1905. (Just after 1900 prison diet
was improved.) Labour-colonies are needed (cf. p. 520).
^ By 2 and 3 Geo. 5 c. 20 the eighth class may be imprisoned for six
naonths ; (or, on indictment, for two years).
2 Other than the eighth, the souteneur.
21 2
BOOK TIL
MODES OF JUDICIAL PROOF.
CHAPTER XXIV.
THE NATURE OF PRESUMPTIONS AND OF EVIDENCE.
A READY knowledge of the law of evidence is essential to
all who are engaged in forensic practice. The occasions for
applying it arise suddenly; and the rules must be put in
force forthwith, before the witness has had time to break
them. Hence, as Sir Henry Maine has remarked, there is
probably no other legal accomplishment so widely diffused
amongst the members of the English bar as skill in appre-
ciating evidence and familiarity with the law relating to it.
The constitutional value of the rules of evidence is very
great." For they have done much towards producing tliat
"general confidence in our criminal courts which has kept
popular feeling in full sympathy with the administration 'of
the criminal law, and has thereby facilitated the task of
government to an extent surprising to continental observers.
In the emphatic words of the late Professor W. L. Birkbeck,
Q.C., " the Jury and the law of Evidence are Englishmen's
two great safeguards against the worst of all oppressions —
that oppression which hides itself under the mask of justice."
And these two safeguards are intimately connected ; for the
one is a product of the other. Our rules of evidence were
created in consequence of a peculiarity of English procedure,
in taking away from the trained judges the determination of
questions of fact, and entrusting it to untrained laymen.
The Romans had no law of evidence; for, with them, ques-
tions of fact were always tried by a, judex who was a citizen
CH. XXI v] Presumptions 325
of rank and intelligence, {e.g., under the Republic, a senator
or a knight). But in England such questions were left to
plain jurymen ; whose inexpertness led the courts to establish
many rules for the exclusion of certain kinds of evidence
that seemed likely to mislead untrained minds.
Whenever, in any country, a tribunal is called upon to
decide any question of fact, it must do so either by obtaining
actual evidence, or by the easier but less precise method of
employing, instead, some d priori presumption. Before com-
mencing a detailed account of evidence, it may be convenient
to explain the technical substitute which thus sometimes
replaces it. Presumptions are of three kinds.
(i) Praesamptiones juris {i.e. drawn by the Law) et de
jure {i.e. in an Obligatory manner). These are inferences
of fact so overwhelming that the law NvTirDOt permit evi-
dence to be called to contradict them. We have already
noticed one of them; viz., the presumption that an infant
under seven cannot have a guilty intention^ Such rules,
though in form connected with the law of Proof, are in truth
rules of substantive law disguised in the language of mere
adjective rules.
(ii) Praesumptiones juris, i.e., inferences of fact which
only hold good until evidence has been given which contra-
dicts them. They thus afford merely a prima facie proof
of the fact presumed; a proof which may be overthrown
by evidence which negatives it, or by collision vnth. some
other and still stronger presumption which suggests a con-
trary inference. Thus, in the United States, when slavery
existed, there was, in the slaveholding States, a primd facie
presumption that every man of black or mulatto skin was a
slave, unless he proved himself to be a freeman*.
(iii) Praesumptiones hominis, or facti. These do not
really deserve to be classed amongst legal presumptions; for
^ Supra, p. i'i). * Wheeler's Laivs of Slavery, p. 392.
326 Preswnptio)i of Innocence [ch.
though, like the two preceding classes, they are inferences of
fact, the law does not (as in those two cases) command juries
to draw them, but only advises their doing so. A good
instance of such a recommendation is the presumption that
arises from possession of goods recently stolen ; (see p. 330).
The presumptions important enough to call for detailed
notice here belong mainly to the second class, the praesump-
tiones juris, sed non dejnre.
(1) There is a presumption of this kind against the
commission of any crime. This holds good, not merely in
criminal trials, but equally in every civil case where any
allegation is made that a criminal act has been committed^
So strong is this presumption that in order to rebut it, the
crime must be brought home to the prisoner "beyond reason-
able doubt ''; and the graver the crime, the greater will be
the degree of doubt that is reasonable. Hence (a) the com-
mission of the crime — that the horse actually was stolen, or
the man killed — must be clearly proved ; so clearly, that
circumstantial evidence will rarely suffice to prove it'. Thus
on a charge of murder the fact of death must be very clearly
proved ; which can rarely be done unless the body be pro-
duced, mere circumstantial evidence of death thus being
usually insufficient*. Moreover (b) after proving that the
crime was committed, the prosecution must also prove dis-
tinctly that the person accused committed it ; so that when
two men are charged with a crime, and it is made clear that
one of them committed it, but it cannot be shewn which one,
both must be acquitted^
Strong as is the presumption of Innocence, it is not too
strong to be rebutted by the presumption of the Continuance
of Life* ; e.g., in a case of bigamy, the presumption that the
' Williams v. East. India Co., 3 East 1U2 (K. S. C. 472).
2 Rerj, V. Manning, K. S. C. 416. » Injra, p. 338.
* Hale P. C. ch. xxxix. (K. S. C. 449) ; 8 Coke Inst. 104 (K. S. C. 449).
' Rex V. Richardson, Leach 387 (K. S. C. 448). ■* Inj'ra, i\ 329.
xxiv] Presumption of Due Course 327
prisoner would not have contracted a second marriage unless
his first wife were dead, may be outweighed if it be shewn
that she was alive only five and twenty days before this
second wedding took placed But it may be useful to note
that an amount of testimony which is not sufficient to rebut
the presumption of innocence entirely'', {i.e., to shift the
burden of proof so completely as to compel the prisoner to
call legal evidence of circumstances pointing to his inno-
cence), may yet suffice to throw upon him the necessity of
offering, by at least an unsworn statement, some explanation^
If he remain silent and leave this hostile testimony unex-
plained, his silence will corroborate it, and so justify his
being convicted. A frequent illustration of this occurs in
the case where a person accused of theft is shewn to have
been in possession of the goods shortly after the stealing''.
(2) There is a presumption against the commission of
any immoral act. Hence cohabitation, with the general
reputation of being husband and wife, is, in most cases,
sufficient prima facie evidence of marriage^ And birth is
presumed to be legitimated But the presumption against
moral wrong-doing is not so strong as the presumption
against criminal wrong-doing. Hence u4's cohabitation with
B does not constitute such strong evidence of his being
married to her as will justify his being convicted of bigamy
if he proceeds to marry C.
(3) Omnia praesumuntur rite ac solenniter esse acta; i.e.,
all things are presumed to have been done in the due and
1 2 A. and E. 540; secns, if no more shewn than that she was aHve
twelve months before the second wedding, 2 B. and Aid. 389.
* For illustrations of such insufficient evidence see Reg. v. Walker,
Dearsly 280 (K. S. C. 450) ; Reg. v. Slingsby, 4 F. and F. 61 (K. S. C. 452).
Contrast Reg. v. Ilobson, Dearsly 400 (K. S. C. 453).
3 Reg. V. Frost, 4 St. Tr. (N.S.) 85 (K. S. C. 374). ^ liijra, p. 329.
^ Doe dem. Fleming v. Fleming, 4 Bingham 260 (K. S. C. 458).
* Morris v. Davies, 5 CI. and F. 163.
^ Morris v. Miller, 1 W. Bl. 632 (K. S. C. 4oUj.
B,
328 Fresiimption of Continuance [ch.
wonted manner. This presumption is one of great force,
especially when ap})lio(i to public or official acts. Thus from
the fact that a church has been frequently used for the
celebration of marriage services the court will infer that
it had been duly licensed for that purposed Similarly the
fact of a person's acting in a public office, {e.g., as sheriff^
justice of the peace, or constable*), is sufficient privid facie
evidence of his having been duly appointed to it*. And
there is a presumption that in any Government office the
regular course of business has been followed; (e.g., that the
particulars on a postmark represent the time and place at
which the letter was handled in the post). Even in a private
establishment the course of dealing may become so syste-
matic and regular as to justify a similar employment of this
presumption. Thus a letter left in the ordinary course with
a servant for delivery to his master may be presumed to
have reached the master's hands". Again, a deed will be
presumed to have been executed on the day whose date it
bears". And the holder of a bill of exchange is deemed
priind facie to be a " holder in due course."
(4) The possessor of property, real or personal, is pre-
sumed prima facie to be full owner of it'. In the case of
real property, accordingly, the presumption is that he is
seised in fee simple.
(5) There is a presumption that any existing state of
things will continue for some time further «. Accordingly if a
partnership or agency is shewn to have once existed, those
who allege it to have been subsequently dissolved will have
1 Reg. V. Crcssicell, L. R. 1 Q. B. D. 446.
2 Bunbury v. Matthews, 1 C. and K. 382.
* Berryman v. Wise, 4 T. R. 366.
•» Rex V. Borrett, 6 C. and P. 124 (K. S. C. 461).
* Macgregor v. Kelly, 3 Exch. 794.
* Malpas V. Clements, 19 L. .J. R., Q. B. 435.
^ Webb v. Fox, 7 T. R. 397; cf. 7 A. and E. 239.
8 E.g. train's, or motor-car's, rate of speed.
xxiv] Possession of Stolen Goods 329
the burden of proving the dissolution^ This presumption is
often applied in questions as to the duration of human life.
Where a person is once shewn to have been living he will be
presumed to have continued alive'' for some time longer;
though the strength of this presumption will depend upon
the particular circumstances of the case, such as his age and
his state of health ^ But if it be shewn that for the last
seven years he has not been heard of by those persons who
would naturally have heard of him had he been alive, the
presumption of his continued existence becomes reversed'*.
(6) There is a presumption that a custom which has been
observed for twenty years has been observed immemorially ;
as, for instance, a peculiar mode of nominating the jury of
a manorial court.
(7) A sane adulb is presumed to intend all the con-
sequences likely to flow directly from his intentional conduct'.
Besides these obligatory presumptions of Law, there is
one discretionary presumption of Fact® which deserves careful
attention — viz. that the possessor of goods recently stolen
may fairly be re^aiiled as either the actual thief or else a
gui lty rece iver'^. His possession raises also — but less strongly
— a presumption of his guilty connexion with any further
crime that accompanied the theft, e.g., a burglary, an arson,
or a murder*.
We have said that this presumption arises in the case of
goods which have been stolen recently. It therefore does not
arise until proof has been given that the goods in question
1 Clark V. Alexander, 8 Scott N. R. 161.
3 Beg. V. Jones, L. E. 11 Q. B. D. 118 (K. S. C. 428) ; Reg. v. IVillshire,
L. R. 6 Q. B. D, 366 (K. S. C. 429).
' Eex V. Harborne, 2 A. and E. 540.
* Hopeicell v, De Pinna, 2 Camp. 11.3.
6 7 Cr. App. K. 140 ; 8 Cr. App. R. 211. « 3 Cr. App. R. 36.
7 Rrg. V. Langmead, L. and C. 427 (K. S. C. 464).
8 Per Pollock, C.B., in Reg. v. Exall, 4 F. and F. 1)22.
330 Evidence [ch.
have actually been stolen. Thus it is not sufficient that a
tramp is wearing three gold watches and gives quite contra-
dictory accounts as to how he got possession of thera^ As
to what time is near enough to be " recent," no general rule
can be given ; for the period within which the presumption
can operate will vary according to the nature of the article
stolen. For such articles as pass from hand to hand readily,
two months would be a long time; particularly in the case
of money. In regard to a horse, it has been held that six
months is too long. And it would seem that, Avhatever the
article were, sixteen months would be too long a period-.
We have already seen' that this presnmj)tion does not dis-
place the presumption of innocence so far as to throw upon
the accused the burden of producing legal proof of the inno-
cent origin of his possession. He merely has to state how it
did originate. If his account is given at, or before, the pre-
liminary examination, and is minute and reasonably probable,
then he must not be convicted unless the prosecution can
prove the story to be untrue! But if he has put forward
two inconsistent accounts, his explanation cannot be regarded
as satisfactory; and the prosecution need not call evidence
to rebut these varying stories ^
Evidence.
A litigant, whose case is not made out for him by any
Presumption, must convince the tribunal by producing
Evidence. The evidence known to our courts admits of a
ready classification, according to differences in its intrinsic
nature, into three kinds ; which are respectively described in
the Indian Evidence Act as (a) Or^A__evidence, (6) Documen -
1 Cp. p. 338 infra; but contrast, in London, no. (iii) on p. 346.
2 2 C. and P. 4.59, (K. S. C. 469), per Bayley, J. 3 Supra, p. 327.
* If he " raises a reasonable doubt," this sufBcps ; 2 Cr. App. E. at p. 242.
6 Reg. V. Dibley, 2 C. and K. 81« ; see 10 Cr. App. 207. But the absence
of saiist'actory explanation does uut compel a jury to convict; Hex v.
Schaina, 31 T. L. li. 88.
xxiv] Classifications of evidence 331
tary evidence, (c) Material -^meaning thereby not " rele-
v^a^r^^ni " physical " — non-documentary evidence. The
same principle of classification has been carried out, in other
phraseology and in a slightly different arrangement, by
J eremy Bentham^ as follows: —
1. " Real " evidence, i.e., that consisting in the condition
of a thing; as, for example, a fence, a uniform, a tattoo mark,
a wound, a smell of prussic acid. Thus blood stains upon a
knife are " real " evidence of its having caused a wound.
2. " Personal " evidence, i.e., evidence which was pro-
duced directly by the mental condition of a human being.
It may be either,
(a) Involuntary, e.g., a blush.
(6) Voluntary, (or, Testimonial); e.g., an affidavit.
This may be either,
(i) Oral, or
(ii) Written.
There is also a very dissimilar, but not less important,
mode of classifying evidence, which turns upon differences
in its logical bearing upon the question to be decided.
Considered from this point of view, all evidence is either
(i) direct, or (ii) indirect (or, "circumstantial^").
(i) Direct evidence is testimonial evidence to one or
more of the facta proUanddT{oT "facts In Issue"); i.e., those
facts AvliTcTT," if all of them be proved, render legally necessary
a decision favourable to the person producing them. ^
(ii) All other evidence is "circumstantial." This term
consequently includes : —
(a) all " real " evidence ;
(6) all " involuntary personal " evidence ;
^ The student must distinguish between this technical use of the word,
and a more popular one, iu which it is also applied to evidence, but means
simply "full of detail," "circumstantiated," {e.g., "his tedious and ciicum-
stantial description ") ; and in which it consequently may be as applicable to
a witness's Direct as to his Indirect evidence.
332 Testhnonial evidence [ch.
(c) such testimonial evidence as concerns only /octo
prohantia; i.e., circumstances which tend to prove, or to
disprove, some factum prohanduni, or " factjn issue " — some
fact, that is, which is an essential part of the question to be
tried. Thus in a prosecution for libel, the act of publication
by the defendant is a fact in issue ; whilst the similarity of^
the defendant's ordinary handwriting to that on the envelope
in which the libellous document was posted, is a fact that
tends to prove this fact, and so becomes relevant to the jssue.
The folloAving are instances of some of the principal forms
of circumstantial evidence most familiar in criminal cases : —
the rank of the defendant, his disposition, his motives, his
threats, his preparations, his attempts, his false statements,
his silence, his fabrication or destruction of evidence, his
flight, his possession of stolen property. But circumstantial
evidence is just as applicable in civil cases as in criminal.
(Thus, in an action on a loan, the defendant may call evidence
of the poverty of the plaintiff in order to help to prove that
the money was not lent'.) Yet the controversies with regard
to its value have arisen almost entirely in connexion with
criminal offences. For the much greater severity of the
penalties that may be inflicted for them has caused many
persons to challenge the probative force of circumstantial
evidence, as being logically inadequate to support a convic-
tion for (at any rate) any capital crime.
The question thus raised is so fundamental as to need our
careful consideration. It is clear that in dealing with any
testimonial evidence whatever, whether " circumstantial " or
"direct," a jury may be misled. For they have to depend
upon : —
(1) the accuracy of the 'witness's original observation of
the events he describes ;
(2) the correctness of his memory ;
(3) his veracity.
1 Bowling v. Bowling, 10 Ir. C. L. 236.
xxiv] Circumstantial evidence 333
But in addition to the risks of mistake, forgetfulness, and
falsehood, which thus arise even when none but direct
evidence is given, there are additional risks to run in dealing
with circumstantial evidence. For here the jury have also
to depend upon : —
(4) the cohesion of each circumstance in the evidence
with the rest of that chain of circumstances of which it forms
a part ;
(5) the logical accuracy of the jury themselves in deduc-
ing inferences from this chain of facts.
These last two hazards have impressed some writers so
deeply as to make them urge that no conviction for any
capital offence should be allowed to take place upon merely
circumstantial evidence. But those who so contend have
not always realised that in every criminal case the mens rea
must necessarily be proved by circumstantial evidence alone ^;
(except when the prisoner actually confesses). Nor have
they realised how extremely obvious may often be the infer-
ence to be drawn from circumstantial evidence; as, for
instance, in a case of evidence of an " alibi ^." Indeed the
cii'cumstantial element often plays a large part in what
would pass, at first sight, as excellent " dii'ect " evidence.
Thus a witness may depose that he saw A point a rifle at B
and fire it; saw the smoke, heard the crack, and saw B fall;
and then, on going up to him, saw a bullet-hole in his leg.
But still he did not see ^'s bullet strike B; so this fact (the
really essential one) depends entirely upon circumstantial
1 The task of inferring the mens rea from such evidence is often facilitated
by certain presumptions of law, e.g., that "a man intonds the natural and
probable consequences of his act"; or that an intentional killing is to be
prima facie supposed to have been due to murderous malice, supra, p. 139.
^ Or of identity. Thus, in identitieation by Fingerprints, error is almost
impossible; e.g., of the first million fingerprints recorded by the London
police, no two correspond in more than seven out of the eleven "character-
istics" by which they are classified.
334 Circumstantial evidence [ch.
evidence ; i.e., it has to be merely inferred from these other
facts which he actually did see\
No distrust of circumstantial evidence has been shewn
by English law. It does not even require that direct evidence
shall receive any preference over circumstantial. Memorable
instances of important capital convictions, whose correctness
is unquestioned, that were based solely on indirect evidence
are found in the trials of Courvoisier for the murder of
Lord William Russell in 1840^ and of Crippen in 1910
for the murder of his wife {infra, p. 339 n.; 5 Cr. App.
R. 255). Reference may also bo made to Rex v. Nash
(6 Cr. App. R. 225) ; and to Rex v. Robertson (9 Cr. App.
R. 189).
Indeed some experienced English and American lawj^ers
have even gone so far as to prefer circumstantial evidence to
direct. " Witnesses," say they, " can lie ; circumstances can-
not." Undoubtedly many famous cases may be cited where
great masses of direct evidence have proved to be utterly
misleading. Such cases have shewn that the direct and
explicit assertions of scores of witnesses, by being given on
opposite sides, may create a far greater uncertainty than that
which attends the employment of circumstantial evidence.
Three such cases may be briefly referred to.
(1) In the Leigh Peerage Gase^, the claimant of a title
based his claim on his alleged descent from one Christopher
Leigh. The proof of such descent was the alleged inscription
on a monument, which was said to have formerly stood inside
* Accordingly, in an old case under unpopular Game LawB, a friendly
jury accepted the hypothesis of the poacher's counsel, that the gun fired by
his client was not loaded with shot, and that the pheasant died of mere
fright. And the superior court did not set aside this verdict, (though, it
being a civil case, they had full jurisdiction to do so). (4 T. 11. 4G8.)
2 The Times, June 19, 1840; Townsend's Modern State Trials, i. 267,
where an account will be found of the grave question raised by this case as
to the duties of an advocate to a client whom he knows to be guilty.
* 1832. See the Committee's Eeport,
XX I v] Circumstantial evidence 335
Stoneleigh Church. Thirty witnesses appeared before a
committee of the House of Lords, and swore orally to their
recollection of the monument; and affidavits to the same
effect were made by about thirty others. But these sixty
witnesses were contradicted (a) by twenty-one other wit-
nesses, who denied altogether that any such monument had
existed ; and also (h) by the fact that their own descriptions
of its shape, its colour, and the inscription carved on it were
utterly irreconcileable^ Accordingly the committee refused
to believe these sixty persons.
(2) In Elizabeth Canning's Case*, thirty-five witnesses
swore that a gipsy (of peculiarly unmistakable features)
who had been convicted of a robbery in Middlesex, was in
Dorsetshire at the time of the robbery; but were contradicted
by twenty-five other witnesses, who swore to ha\dng seen her
then in Middlesex. Besides shewing by this contradiction
how untrustworthy even the most direct testimonial evidence
may be, the case further emphasises the same lesson by the
instance of Canning's own narrative of abduction and rob-
bery, which was discredited by its sheer improbability, with-
out being contradicted at all.
(3) But the case of Reg. v. Castro^, the longest and most
remarkable trial in our legal history, affords the most vivid
^ To take, for instance, only some seven out of the first thirty, they thus
differed as to the colour of the monument: — "nearly black"; "a kind of
dove colour"; "black with white letters"; "had been originally white";
" black" ; "light marble with dark introduced into it" ; " bluish grey." As
to its shape: — "oblong"; "square at top, but narrowed to a point at
bottom"; " square at bottom, but narrowed to a point at top"; " square at
top and square at bottom." And as to the inscription on it : — "all Latin";
" agreat deal of it English" ; "all English except anno domuir^; "all Latin."
2 19 St. Tr. 283. A full account of this extraordinary case will be
found in an article in Blackwood's Magazine for 1860, p. 581, written by
a well-known metropolitan magistrate, who considers it " perhaps the most
inexplicable judicial puzzle on record"; and also in one contributed by the
present writer to the Law Quarterly Review in 1897. See Comhill Magazine,
1904. Cf. the case of Mr Adolf Beck, infra, p. 512.
3 Annual Register, vols, for 1871, 1872, 1873, 1874,
336 Circiimstantial evidence [en.
of all illustrations of the untrustworthiness of direct evidence.
A butcher, named Castro, or Orton, came forward in 1866
claiming to be Sir Roger Tichborne, a young baronet who
was believed to have perished in 1854 in a shipwreck. On
Orton 's being ultimately tried for peijury, 212 witnesses
were examined for the Crown, and 256 for the defence. These
included four large groups of people who respectively gave
the following items of direct evidence : —
(1) the claimant is not Roger Tichborne;
(2) he is Arthur Orton ;
(3) he is not Arthur Orton ;
(4) he is Tichborne.
These four vast groups, accordingly, served only to prove
each other to be untrustworthy; and the case had there-
fore to be decided by circumstantial evidence, such as the
claimant's degree of education, his ignorance of the affairs
of the Tichborne family, and his conduct towards them and
towards the Orton family
These cases shew vividly that testimony, even when a
large number of witnesses corroborate each other, may be
quite untrustworthy; and therefore that direct evidence is not
necessarily to be believed. It may even be less trustworthy
than circumstantial evidence, if the latter happens to consist
of a great number of detached facts, which are severally
proved by different witnesses. For, in such a case, each
wifness's contribution may well appear to him too trivial for
it to be worth while to commit perjury about it' ; (though,
on the other hand, the same triviality which thus diminishes
the chance of mendacity, increases somewhat the chances of
mistake and of forgetfulness). But in all other cases circum-
1 " Wherever there can be any doubt as to the veracity of the witnesses,
Indirect evidence, coming from different sources and from remote quarters,
has a greater force and elTect than Direct evidence" ; per Pollock, C.B. , in
Reg. V. MuUer {The Time*, Oct. ai, IbGi).
xxiv] Circumstantial evidence 337
stantial evidence must certainly be pronounced to be less
trustworthy than direct evidence ; since a dangerous source
of error is introduced by the difficulty of reasoning from the
fragmentary items of proof to the conclusion to be proved.
For, though "circumstances cannot lie," they can mislead'.
They may even have been brought about for the very pur-
pose of misleading ; as when Joseph's silver cup was placed
in Benjamin's sack, or when Lady Macbeth "smeared the
sleeping grooms with blood."
Unfortunately it is in the graver rather than the lesser
crimes that circumstantial evidence has the most frequently
to be relied upon ; because in such crimes an offender is the
more careful to avoid eye-witnesses. Just as adultery can
scarcely ever be proved by direct evidence S so no deliberately
planned murder is likely to be carried out when any third
person is at hand. Hence comes it that if a child has died
just about the time of birth, though the question whether
it was born alive or dead can usually be settled easily in
civil actions, (friends of the mother, who were present at
the birth, being called), yet its determination on a criminal
trial for infanticide is usually most difficult'. For it ordi-
narily has to depend wholly on circumstantial evidence, and
this has to be drawn from post-mortem appearances of an
ambiguous character. Hence has arisen a -widespread im-
pression that the evidence requisite to prove live birth is
different in civil and in criminal cases ; the only difference
being, in reality, in the evidence usually available in those
respective cases.
^ As when Bodin tells us that " For the woman not to weep when
accused is one of the strongest presumptive proofs of witchcraft that
Grillard and other Inquisitors had observed, after having tried and executed
very many witches " ; Demonomanie, rv. ch. iv.
- Lord St Helicr said that if direct evidence of adultery be given, this
very fact should inspire doubts as to the truth of tlie accusation.
3 "Almost impracticable," (Ogston's Medical Jurisprudence, p. 220);
" absolutely impossible," (T. F. Smith's Med. Jur., p. 224). Supra, p. 129.
K. 22
338 Circumstantial evidence [ch.
These various considerations point to the conchision that
circumstantial evidence should be admitted, but admitted
only with watchful caution. With this conclusion the prac-
tice of English courts accords. (The caution, however, as
Stephen^ points out, must not be excessive; as when some
suggest that there should be no conviction unless guilt be
" the only possible inference " from the circumstances. For
even in the best-proved case there must always be some
possible hypothesis which would reconcile the evidence with
innocence*.) The prudent hesitation of English law in regard
to circumstantial evidence has found expression in some
familiar restrictions upon its employment. Two of these are
of special importance.
(a) No con\dction for larceny is to be allowed unless the
fact that a larceny has actually taken place be proved fully.
It is not enough that a penniless tramp has been found to be
wearing two diamond rings. To convict him of larceny, it
must further be proved that these rings had somewhere been
stolen; and this must be proved either by direct evidence
or at least by exceptionally strong circumstantial evidence.
Usually therefore it will be necessary to bring the owner
himself, to prove his loss of some article and its identity with
the article which is the subject-matter of the indictment".
But it is possible that even cii'cumstantial evidence may be
so peculiarly strong as to justify a conviction without any
such direct proof; as where a person, on coming out of a barn,
is found to have corn, (or one coming out of a cellar is found
to have wine), concealed under his coat*.
(b) Similarly no conviction for homicide is allowed unless
the fact that there has been a death be proved fully. This
1 General View of Criminal Law, pp. 265 — 275.
2 Cf. the case mentioned, supra, p. 334 n.
8 Reg. V. Dredije, 1 Cox 235; Hex v. Joiner, 4 Cr. App. li. 64.
* Beg. V. Burton, Dearsly 202. Cf. p. 196 sujjra.
XXI v] Circumstantial evidence 339
again must be done either by direct evidence {e.g., the find-
ing of the body), or by circumstantial evidence of an excep-
tionally strong character^ Hale and Coke illustrate the
importance of this rule by actual instances in which persons
were executed for murder, and yet their supposed victims
subsequently reappeared alive''. Hence in a case where the
father and mother of a bastard child were seen to strip it
and throw it into the Liverpool Docks, and the body could
not afterwards be found, Gould, J., nevertheless advised that,
as there was a bare chance that the child might have been
carried out to sea by the tide and picked up alive, the
parents ought not to be convicted of its murder*. It thus is
usually necessary that the body, or some identifiable portion
of it, should be founds A memorable instance of the identi-
fication of a mere portion occurred in a famous American
trial of 1850 ; that of Professor Webster, of Harvard Univer-
sity, for the murder of Dr Parkman^ The body had been
burnt in a furnace in the Professor's laboratory and the only
identifiable portion left was the victim's false teeth; which
fortunately were of a peculiar character,
' Bex V. Hhidmarsh, 2 Leach 569.
2 Hale P. C. c. xxxrx. ; 3 Coke Inst. 104 (K. S. C. 449).
* Citod in Eex v. Uindmnrsh, loc. cit. Doubt has been thrown on this
ruling as over-cautious. But Rex v. Farquharson (Sussex Assizes, June 29,
1908) is similar. The prisoner confessed having thrown her baby into a
tidal stream. It was proved that on the next morning the body of a baby of
the same sex and age was found on the shore, a mile away, in the line of
current. Jelf, J., told the jury that they could not convict unless satisfied
that the body found was actually that of the prisoner's child.
* The phrase corpus delicti — though often applied to the body of a
murdered man, or the stolen goods, or any other Thing which is the
subject-matter of criminal conduct — more properly means the criminal
Conduct itself, e.g. the act of killing the man, or of stealing the goods.
* Supra, p. 139; 5 Cushing 295. Cf. Crippen's case, in England in Nov.
1910; where no head and no bones were found and no organs that indicated
sex, but only pieces of flesh, on one of which was an identificatory scar. And
in Rex v. Peacock, an Australian case (13 Commonwealth L. R. 619), the
murderer had burned the whole of the corpse, yet was convicted.
22—2
CHAPTER XXV.
THE GENERAL RULES OF EVIDENCE.
We now come to consider the chief general rules of
evidence. They consist, as we have said, mainly of rules of
Exclusion. And they are not limited to excluding such
matters as are irrelevant to the issue to be tried. For even
of relevant testimony there are two kinds which it is highly
desirable to excluded
(a) Evidence.of matters so slightly relevant as not to be
worth the time occupied in proving them. If every circum-
stance Avhich might tend to throw light on the matters in
issue were let in, trials would be protracted to an intolerable
length ; especially (as Maine says) in India, where extraordi-
nary ingenuity is exhibited in discovering every fact which
has the remotest bearing on a question that is to come under
litigation.
(b) Evidence which, though relating to facts that are
not only relevant but even important, is itself of such a
character that experience shews it to be likely to impress
persons of merely ordinary intelligence as being a more
cogent proof of those facts than it really is. "Hearsay"
affords a conspicuous example of this kind of evidence. The
legal rules of evidence were probably developed in consequence
of the gradual discovery by judges that certain kinds of proof
were apt to be thus accepted, by inexperienced jurymen,
1 Cf. Sir Henry Maine's Speeches, p. 426.
CH. XX v] Inadmissible evidence 341
with a degree of respect which was undeserved. Hence an
adherence to them was chiefly insisted upon in cases where
it was by jurymen that the evidence was to be weighed.
Accordingly where the functions of the Court alone are
concerned, (as in determining the sentence for a convicted
prisoner), facts are often taken into account which have not
been established in accordance with the strict rules of evi-
dence. Thus the law of evidence was not reduced to definite
form until long after our forensic procedure had become"
familiar with the practice of producing witnesses to give
evidence to juries. It was in civil courts that the rules of
evidence first arose; and they thence passed to criminal
courts, where, however, they came to assume an even greater
importance than was accorded to them in civil ones.
A marked distinction between the civil and the criminal
views of the law of evidence is that its rules may in civil
cases be waived, either by consent or by an order made on a
summons for directions ; but in criminal cases the rules of
evidence are matters piiblici juris, and cannot be dispensed
with by consent of the parties \ For, here, others than they
have an interest at stake ; not merely the single person
accused but also every other inhabitant of the realm has an
interest in seeing that the prisoner's liberty or life is not
taken away except under the whole of the safeguards which
the law has prescribed.
And till recently there was a further grave distinction.
For in civil cases, a new trial is not allowed merely because
of an improper admission or rejection of evidence at the
original trial, unless this error has occasioned " some sub-
stantial wrong or miscarriagel" But in criminal cases a
1 Rex V. Foster, 7 C. and P. 495; Reg. v. Bateman, 1 Cox 156 (K. S. C.
191). Bat the quasi-civil character which the early law attached to mere
misdemeanors (supra, p. 99), has occasionally led, in their case, to slight re-
laxations of this rule ; see, e.g., p. 390. Cf. Rex v. Morphew, 2 M. and S. 602.
^ Rules of the Supreme Court; Order 39, Eule 6.
342 Inadmissible evidence [ch.
jury's verdict of Guilty was liable to be quashed if any in-
admissible evidence for the crown had gone in ; even though
that evidence was of no importance, and though the evidence
legally admissible was, without it, amply sufficient to warrant
a conviction. Happily, however, the Criminal Appeal Act,
1907 S has abolished this scrupulosity. For it provides that
" the court may, (notwithstanding that they are of opinion that
the point raised in the appeal might be decided in favour of
the appeal), dismiss an appeal if they consider that no
substantial miscarriage of justice has actually occurred." A
similarly wide power of dismissal had already been adopted
by the High Court in dealing with appeals from rulings
given about evidence in courts of Petty Sessions^
So, now, a conviction cannot be set aside for every small
slip in the evidence. That slip will not entitle a prisoner to
appeal successfully if, even had an opposite ruling been given,
the only reasonable and proper verdict for the jury to
return would still have been the same, one of Guilty*. Yet
there may be a sufficient " miscarriage of justice " to warrant
setting aside a conviction, even though the Court of Appeal
itself thinks the conviction justifiable. It is sufficient that
it would have been " fairly and reasonably" possible for the
jury to have refused to convict, had the evidence been sub-
mitted to them according to the strict rule of law. For the
prisoner has lost that chance of acquittal^- Hence a prosecutor
should not press for the admission of any evidence which is
at all of doubtful admissibility. But, on the other hand, a
prisoner's counsel should not be too eager to take objections
to evidence ; for every objection prejudices the jury, who
resent any technicality which closes the avenues to truth.
If any improper evidence is given, the judge should strike
it out of his notes and should bid the jury pay no attention
1 7 Edw. VII. c. 23, s. 4 ; infra, p. 490.
2 Shorn V. Robinson, 63 J. P. 295.
* Wrongful rejection: 2 Cr. App. R. 119. Wrongful admission: 1 Cr.
App. R. 83, 128; 5 Cr. App. R. 14, 233. < 3 Cr. App. R. 177.
xxv] The burden of proof 343
to it. In an extreme case, where the evidence has made too
much impression to be counteracted thus, he should discharge
the jury and rc-try the prisoner before a fresh jury.
We will first explain the fundamental doctrines of
Evidence, applicable in all courts whether civil or criminal ;
and then pass to the consideration of such rules as are
peculiar to courts of criminal jurisdiction. The following
are the fundamental principles which require our attention.
Kule I. Omnia praesumuntur pro negante ; or, as the
rule is more fully expressed by Justinian, "ei incumbit pro-
batio qui dicit, non qui negat*."
Thus the creditor who claims a debt has the burden of
proving it to be owed. Similarly, in any criminal accusation^
the burden of^^QofLaJways liesjupon the accuser as regards
the actus reus, and usually also as regards the mens rea;
Avhile the accused, on the other hand, is entitled to main-
tain "a sullen silence." And this duty of every affirmant
to make out his case is so clearly imposed by law that,
although questions of fact are for the jury, and not for the
judge, yet the judge must not allow the jury to pronounce
a verdict in the affirmant's favour if the only evidence he
has produced is so slight that no reasonable man could
accept it as establishing the fact which is to be proved.
Thus if it is necessary to shew that a transaction took place
on a Monday, and the evidence only shews that it took
place "either on a Monday or else on a Tuesday," there
would be no case which the judge could submit to the jury;
(unless indeed this evidence were eked out by some presump-
tion, as for instance, "omnia' rite esse acta"). Hence it may
quite logically happen that a defendant may be acquitted,
and yet that the witnesses against him, on being indicted
before the same jury for perjury, may also be acquitted.
^ Dig. XXII. 3. 2.
' Rex V. Hazy, 2 C. and P. 458 (K. S. C. 471); WilUayns v. East India
Co., 3 East 192 (K. S. C. 472). 3 Su^^a, p. 327.
y
344 Affirmative defences [en.
Sometimes, however, this rule, that the burden of proof
is on the affirmant, may happen to come into collision with
the fundamental presumption of innocence', which throws the
burden of proof on any person who alleges misconduct, even
though his allegation of misconduct be a negative averment, a
charge of omission. In such a collision of rules the presumption
of innocence must usually be allowed to prevail; and the
accuser will generally be required to give proof not only of
his affirmations but even of his negations'^ To this principle,
however, a somewhat perplexing exception arises in those
cases where the affirmative fact, which would disprove guilt,
is one which (if it exists) lies peculiarly within the know-
ledge of the litigant whose interest it is that this guilt
should be disproved. For in these peculiar cases, so soon
as the accuser has given so much evidence as a reasonable
man might consider to be sufficient to establish the positive
elements of the offence, there then is cast upon the accused
person the burden of disproving the negative element by
producing affirmative counter-evidence. So if he fail to pro-
duce that evidence, this failure may be taken as proving that
DO such affirmative evidence exists, and accordingly as
establishing the accuser's negative allegation. Thus on an
indictment for misprision of treason, though it is for the
Crown to prove that the prisoner knew of the treason, it yet
may legally leave the prisoner to prove (if he can) that he
discharged his consequent duty of disclosing it to some
magistrate'. And similarly in proceedings for practising
medicine without a qualification, or selling game without
a licence, or producing a play without the author's consent,
80 soon as the active conduct alleged has been proved, it may
then be left to the defendant to prove that he possessed the
qualification or licence or consents
But it is only in this unusual class of cases — viz. accusa-
tions of omission, and where the act omitted is such that its
' Supra, p. 326. - See cases cited supra, p. 343 ii.
3 Bex V. Thistlewood, 33 St. Tr. at p. G91.
* Hex V. Turner, 5 M. and S. 20G (K. S. C. -IT-l).
XX v] Prisoner's silence 345
performance could best be proved by the accused — that a
defendant's naere silence can suffice to prove any element of
his guilt. Usually, the utmost hostile inference that can
be drawn from his silence does not amount to Proof but
merely to Confirmation. It is not sufficient to rebut so
strong a presumption as that of Innocence ; but merely
capable of being taken into account to corroborate other
evidence which, even uncorroborated, was already legally
adequate to effect that rebuttal. Of course the value of this
fact of silence becomes the greater in proportion as the
grounds of defence, about which the defendant is silent, lie
the more particularly within his own knowledge. In Att-
Gen. V. Bradlaugh^, an action for penalties for acting as a
Member of Parliament without having taken the oath, the
informant alleged that the defendant's religious views made
him incompetent to take an oath ; and this assertion was
supported by evidence. As the defendant could himself have
disproved the assertion if it were not true, the jury were
directed to take into account the fact that he had not done
so. And in divorce proceedings, if the co-respondent is
present in court, and yet does not go into the witness-
box to assert his innocence, this corroborates (though only
slightly) the evidence given against him. So, in the pro-
ceedings, in 1820, on the allegation of adultery against Queen
Caroline, great stress was laid upon her failure to bring her
devoted attendant Bergami, the alleged adulterer, as a
witness to her innocence".
The importance of this rule as to a defendant's silence
is very great, now that the Criminal Evidence Act,
1898", has allowed all accused persons to give evidence for
themselves on oath. For, though this Act forbids counsel
^ The Times, July 1, 1884 ; same case on appeal, L R. 14 Q. B. D. 667.
2 Lord Eldon, for instance, treats this failure as "amounting to a tacit
admission," in his speech in the House of Lords on Nov. 2, 1820.
3 See p. 401 infra. Cf. 1 Cr. App. R. 62, 64, 218; liex v. Corrie, 68
J. P. 294 ; Ward v. Bp. of Mauritius, 23 T. L. R. 52.
346 Giving evidence [ch.
to comment on the prisoner's not giving evidence, no such
restriction is imposed upon the judge, and indeed jurymen
are themselves usually on the alert to notice this silence.
It should be noted, in conclusion, that there are a few ex-
ceptional criminal cases in which the legislature has thrown
upon the prisoner the onus probandi of a part of the issue.
The following are instances : —
(i) By the Explosive Substances Act, 1883', it is a felony,
punishable with penal servitude for fourteen years, to be in
possession of any explosive substance under suspicious cir-
cumstances, unless the prisoner can shew that his possession
was for a lawful purpose.
(ii) We have already mentioned the offence against the
Vagi-ant Act which is committed by those who " sleep out,"
unless they can give a good account of themselves^
(iii) By 2 and 3 Vict. c. 71, s. 24 it is made an offence,
to be in unlawful possession, in any street or public place,
in the Metropolitan Police District, of goods which may
reasonably be suspected of being stolen, unless the prisoner
gives a good account of how he came by them ; (punishable
by two months' imprisonment, with or without hard labour).
Rule II. The mode in which testimonial evidence is
given.
The admirable method adopted is one which was gi-adually
developed by the common-law courts. They ultimately went
unfortunately far in excluding evidence, but they elicited in
the best possible manner all that was not excluded ; (whilst
in Chancery, far more evidence was always admissible, but
the mode of elicitation was such as to render it all far less
trustworthy). The witness must give his testimony not
" spontaneously " but " responsively," i.e., not in a consecutive
1 40 aud -17 Vict. c. 3, 8. 4. " iiU2>ra, y. 322.
xxv] Cross-examination 347
narrative, but by brief answers to brief successive questions.
This method affords the opposing party an opportunity of
objecting, before it is too late, to any question which tends
to elicit an answer that would not be legally admissible as
evidence. The questions moreover are put by counsel, and
not by the judged But in French criminal trials, they are
still put through the medium of the presiding judge, (for
though the prisoner's counsel may, now, carry on an examina-
tion or cross-examination, he can only do so by getting the
express leave of the judge for each question^); and the
French Code of Criminal Procedure provides that a witness
must not be interrupted in his answer. Hence, upon the
trial of M. Zola (in connexion with the Dreyfus case) in
February, 1898, more than one of the military witnesses
made a continuous speech that occupied over a quarter of
an hour; and General de Pellieux was called as a witness
expressly on account of his extreme eloquence.
The questions proposed to a witness may occur in as
many as three successive series.
(1) He is first "examined in chief" by the party that
has called him ; with the object of eliciting from him
evidence in support of that party's view of the question at
issue.
(2) He is then cross-examined by the opposite party;
in order to diminish the effect of the evidence which he
has thus given, and perhaps also to obtain evidence in
support of the case of the party cross-examining ; (for a cross-
examination is not, as is sometimes imagined, limited to
the scope of the examination-in-chief). Cross-examination
^ Yet 80 late as Lilburne's Case (1649) a strong court told him that
a prisoner might not cross-examine the Crown witnesses, but only suggest
questions for the court to put ; (4 St. Tr. at p. 1334).
* " With the result that his cross-examination becomes comparatively
ineffective," wrote Lord Kussell of Killowen, after attending the trial of
Capt. Dreyfus at Benues (Life, p. 320).
348 Re-examination [c^h.
may reduce the effect of the evidence given in examination-
in-chief either (1) simply by eliciting further facts which
tend to harmonise that evidence with the case set up by
the cross-examiner; or (2) by shaking that evidence itself
This latter effect may be produced by bringing the witness
to admit that his opportunities of observing the facts
narrated were inadequate, or that his character or bias is
such as to make it unwise to rely on his veracity, or again,
by involving him in such inconsistencies of statement as
to make all such reliance impossible on (at any rate) this
particular occasion^
(3) Finally, a witness who has undergone cross-examina-
tion may be re-examined by the party who originally called
him; in order to shew the real meaning of the evidence
elicited by the cross-examination. A re-examiner may, for
instance, get the witness to explain any ambiguous ex-
pressions which he may have used on cross-examination, or
his motives (e.g., provocation) for any conduct which he
may have admitted when under cross-examination*. Thus,
if the cross-examiner has asked, " Didn't you once assault
a neighbour ? " the re-examiner may ascertain what this
neighbour bad done to you that made you assault him. Or
if the witness has been asked in cross-examination, " What
are you to receive for coming here to-day ? " the re-examiner
may ai=!k, "And what have your journey here and your loss of
time cost you ? " But re-examinations are limited strictly to
the matters that have been elicited in the cross-examination.
Hence, in an action against a ship-owner for negligence in
his mode of loading a cargo, after a witness for the plaintiff
had stated that deck-loading was perilous, and had conse-
quently been asked by the cross-examiner, " Isn't it usual in
summer voyages ? " it was held not to be permissible for the
^ Quintilian's instructions on the cross-examination of witnesses still
retain all their value; Iiist. Oral. v. 7-
2 Queen Caroline's Case, 2 B. and B. 297.
xxv] Leading questions 349
re-examiner to ask, " Are those summer deck-cargoes carried
at the risk of the ship-owner or of the cargo-owner ? " For
such a question would go beyond the range of the cross-
examination and open up a new inquiry.
It should be added that if either an examiner-in-chief or
a cross-examiner has elicited from a witness some portion of
a conversation or of a document, (even though he may have
brought out all that it was legally permissible for him to ask
for), his opponent becomes entitled to elicit (in his subse-
quent cross-examination or re-examination) all the rest of
that conversation or document, so far as it concerned the
same subject. Thus if the examiner-in-chief asks, " Why
did you go to that house?" and receives for answer, "Because
of a remark my brother made to me," he cannot go on to ask
what this remark was, (for that would be to adduce hearsay
evidence): but the opposite party, when he comes to cross-
examine, will be fully entitled to ask.
Rule III. Questions put to a witness by the counsel
who produces him, (whether in examination-in-chief or in
re-examination), must not be "leading" ones^
A question "leads" if, though it admits of several
answers, it suggests that a particular answer is desired
by the questioner. Thus an examiner-in-chief must not
ask, " Didn't the noise last long ? " but, " How long did the
noise last?"; not, "Wasn't it a wet day?" but, "What sort of
day was it ?" not, " When he was leaving, did he offer you
£5 ?" but, " When he was leaving what did he do ?" Lead-
ing questions are objectionable because (1) to a false witness
they suggest what particular lie would be desirable ; and (2)
even an honest witness is prone to give an assenting answer
from mere mental laziness. But these objections are not
1 Leading questions were objected to even as early as the trial of
Lilburne in 1649. The Attorney-General having asked a witness such
a question, Lilburne interposed, " I pray. Sir, do not direct him what to
say, but leave him to his own conscience and memory " (5 St. Tr. 1337).
350 Leadinfi questions [ch.
likely to apply to a cross-examination, so leading questions
are freely permitted there. To certain portions, also, of
the ordinary examination the objections are inapplicable;
and therefore, as leading questions save much time, they are
allowed even in examination-in-chief in the following cases.
(1) As to undisputed matter; e.g., the name, address, and
occupation of a witness. If a fact has been deposed to by a
witness, and he has not been cross-examined about it, this
may prima facie be taken to imply that the fact is undis-
puted, and accordingly that subsequent witnesses may be
" led " with respect to it.
(2) As to the identity of persons or things ; e.g., " Is this
the watch that you missed?" Thus an examiner may ask,
"Is the prisoner the mrin you saw?" Yet a jury would be
more fully impressed if counsel asked first, " Would you re-
cognise the man?" and then bade the witness point him out,
(3) For the purpose of contradicting the account which
some previous witness, A, has given of his own statements, a
subsequent witness, B, may be asked a leading question; as,
" Did A say so-and-so ?" But, before this is asked, B should
be got to give his own version of what A said
(4) Sometimes a witness, in the course of his examina-
tion-in-chief, shews himself to be hostile to the party pro-
ducing him — meaning thereby, not that he merely gives
evidence which is at variance with that party's case, but that
he shews an evident unwillingness to disclose what he knows
in favour of it. Thereupon the judge may, if he think fit,
permit the examiner to contend with this unwillingness by
asking leading questions.
(5) If the witness merely proves to be forgetful, no such
permission will be given to ask questions that are strictly
leading ones ; yet after an examiner-in-chief has thoroughly
tested and exhausted his witness's memory, he will usually
xxv] Witnesses' Memory 351
be allowed to suggest points for recollection', e.g., even to
ask, " Was nothing said on the subject of the... ?"
Rule IV. A witness speaks to his Memory and not to
his reasoning.
What, however, he remembers will be admissible in
evidence even though his recollection of the facts is only
weak; (but, of course, its value may consequently be trifling).
Thus in Lord Melville s Case'^ it was held that, where a
witness was not able to swear positively but had a very
slight remembrance, this was legal evidence. And on an
important triaP a letter as evidence was admitted though
the witness to its authorship could go no further than to say,
" It is in a disguised hand ; I believe it to be his writing, but
I would not like to swear positively to it."
But it is only for his memory that a witness is brought
into court, and not for his powers of judgment ; (unless he
be called as a scientific expert, e.g., a chemist or pathologist
in a case of poisoning). Hence an ordinary witness must
not be asked, either in examination-in-chief or in cross-
examination, to draw inferences. "As A and B occupied
the same cabin, would A have put this message into writing
if he meant it for B only ? " is an argument, not a question.
Similarly, on reminding a witness that his answer is a
contradiction of the evidence which some previous witness
has given, even to ask him, " If A says the contrary to what
you have just told us, is what he says untrue?" is, strictly
speaking, to ask what he need not answer. Similarly a cross-
examiner has no right to ask, " Did you go to the prisoner's
house as a spy*?" fur this is a matter not merely of facts
but of the view to be taken of those facts. Yet he may
ask under what directions the witness went there, for what
1 Cf. Courteen v. Touse, 1 Camp. 43. 2 29 St. Tr. 740.
* Before a Special Commission consisting of four judges ; lieg. v. Simon
Bernard, 8 St. Tr. (N. S.) at p. 981; cf. p. 927.
4 lieg. V. Simon Bernard, 8 St. Tr. (N. S.) at p. 935; 1 F. and F. 240.
352 Relevancji of evidence [ch.
purpose he went, what he did when there, what report he
afterwards made to those who employed him ; and then, on
the strength of the answers to these questions, he may, in
his subsequent address to the jury, insist that the conduct of
the witness must be regarded as that of a spy.
Rule V. Evidence must be relevant; i.e., it must be
confined to the question at issue.
A party may prove all circumstances that are relevant to
the facts in issue, but no others'. The circumstances thus
relevant consist not only of those which form part of the
facts in issue themselves, but also of all such further circum-
stances as may be necessary to identify or to explain these'.
This will include, for instance, in a criminal case, not only
the prisoner's commission of the crime and his guilty know-
ledge, but also — as facilitating a belief in these — his oppor-
tunities, motives, and subsequent conduct, and the credibility
of the witnesses produced at his trial.
Thus, where a prisoner, accused of murder, bore the some-
what unusual surname of Lamson, evidence was admitted
that luggage had been deposited in that name on the day
of the murder, at a railway station near the place where it
was perpetrated ; the circumstance being held to be relevant
because it was proof of opportunity, though very slight proof*.
Not only is the prisoner's own conduct relevant, but so soon
as it has been shewn that others Avere combined with him in
carrying out a joint criminal purpose, evidence may be given
of any conduct of theirs which forwarded this joint purpose,
even though such conduct took place in the prisoner's ab-
sence and though they are not indicted along with him*.
This rule is of specially frequent application on trials for
conspiracy*; but is by no means confined to them. Thus if
' Per Parke, B., in Wright v. Doe, 7 A. and E., at p. 384.
■■^ See Mr W. Wills' Law of Evidence, p. 39.
» Reg. V. Lamson, C. C. C. Sess. Pap. xcv. 572.
« Rex V. Stone, G T. 11. .527 ; Rex v. Winkworth, 4 C. and P. 444.
6 Rex V. Hammond, 2 Esp. 718 (K. S. C. 411).
xxv] Evidence of character 353
A be indicted for uttering counterfeit coin, evidence may be
given of his accomplice B going into a market and passing
it there, though A himself did not go. Similarly, if A and B
have agreed that B shall obtain goods at a shop by a false
pretence, what B says in the shop may be given in evidence
against^, though he was not there, and even though B is not
indicted along with him.
The legal limits of relevancy exclude much evidence
which, in non-legal matters, would be thought very cogent.
Thus if the question at issue be as to how a man acted on
one occasion, evidence of the way in which he acted on some
other similar occasion is not considered sufficiently relevant
to be admissible. Accordingly in civil courts, in a dispute
as to what the terms of a contract were, a litigant cannot
corroborate his account of them by giving proof of the
terms of other contracts which his opponent made on the
same subject-matter with other persons^ Yet evidence of
these other contracts would have been quite admissible had
the dispute related — not, as here, to what the opponent
actually said when making the present contract, but — to
what was his state of mind -when making it ; e.g., whether
or not it was with a fraudulent intent that he introduced into
it some ambiguous terms^
And in criminal courts the same principle serves to
exclude evidence of the prisoner's past offences. It is true
that evidence of his good character is alwaj's regarded as
relevant^; perhaps because in the chief Anglo-Saxon mode
of trial, (viz., by compurgation), it was practically the only
evidence the law demanded of him. But his had character
is not regarded as similarly relevant to the question whether
1 HoUhigham v. Head, 4 C. B., N. S., 385. Cf. Holcombe v. Hewson,
2 Camp. 891, where the fact that the beer which A had sold to G, D, and E,
was good, was held to be irrelevant to the question whether that which he
had sold to B was also good.
'■^ Barnes v. Merritt, in the Court of Appeal, June loth, 1899.
» Reg. V. Rowton, L. and C. 520 (K. S. C. 528).
K. 23
354 Prisoner's past offences [en.
lie committed the actus reiis^. Consequently evidence of
other (even similar) offences of which he has been guilty
cannot be given in order to corroborate the proof of his
having committed this one. Yet in French criminal pro-
cedure such evidence plays a most important part.
Nor is there, even in English law, any intrinsic objection
to giving evidence of the prisoner's having committed other
crimes, if there be any special circumstance in the case to
render those crimes legally relevant. Thus burglary may
be brought home to a man by shewing that a cigar case,
which the burglars left behind them in the house, had that
day been stolen from its owner by htm. Or, to shew the
motive of the present offence, some other crime may be
disclosed": as where a murder is accounted for by proving
that the deceased had been an accomplice with the prisoner
in some previous crime, and consequently was a person to be
got rid of; or where an earlier act of sexual passion between
the same two persons renders probable the further existence
of their passion^ So even of their similar act* subsequent
to the one under trial ; for the subsequent conduct of a
prisoner may throw light upon his offence, as where a thief,
on being arrested, shoots his arrestor'.
Moreover, a distinction similar to that which we have
already noticed in civil courts® holds good in criminal ones.
Whilst the fact of a prisoner's having committed other similar''
offences is not relevant to the question whether he com-
^ " A man's general bad character is a circumstance common to him with
hundreds and thousands of other people; whereas the opportunity of com-
mitting the crime, and facts immediately connected with it, are marks which
belong to very few." Stephen, Ge7i. View, 1st ed., p. 309.
- Re!j. V. Neill, C. C. C. Sess. Pap. cxvi. 1417 (K. S. C. 483).
8 Hex V. Ball, L. R. [1911] A. C. 47.
* Rex V. Stone, 6 Cr. App. R. 91, 94. Cf. p. 355 n. 1 infra.
« C. C. C. Sess. Pap. xci. 131. « Supra, p. 353.
7 Hex V. Fisher, L. R. [1910] 1 K. B. 119; cf. 2 K. B. 746.
XX v] Prisoner's past offences 355
mitted the actus reus of which he is accused now, yet, so
soon as this actus reus has been fully established, evidence of
those previous offences may well be relevant to the question
of his state of mind in committing this act, (his mens rea),
if the defendant do actually raise that question; {Rex v.
Rodley, 8 Cr. App. R, at p. 75). Such evidence was
originally admitted only in exceptional offences where a
denial of mens rea was peculiarly easy; like embezzle-
ment, or false pretences^ But now its admissibility is
recognised as a general rule; in no way limited to
peculiar classes of crime. For, on the indictment of a baby-
farmer for the murder of a particular child, the Judicial
Committee'^ held that the Crown might put in evidence
(i) that the bodies of other infants also had been found
secretly buried on the premises occupied by the prisoner;
and (ii) that several infants had been received by him on
pajnnent of inadequate sums similar to that paid in the case
of the particular child for whose murder he was indicted.
In one instance the legislature has even extended this
principle to evidence of offences that are not of a precisely
similar kind. For by the Prevention of Crimes Act, 1871',
on indictments for receiving stolen goods, as soon as it has
been established that the prisoner did have possession of
the stolen property, the fact of his having been convicted,
within five years previously, of "any offence involving fraud
or dishonesty " is admissible to shew guilty knowledge.
By a distinction precisely the converse of that which is
1 Reg. V. Francis, L. R. 2 C. C. R. 1'28 (K. S. C. 492). Evidence may be
given even of crimes suhaequent to the one under trial; Reg. v. Rhodes,
L. E. [1899] 1 Q. B. 77 ; Rex v. Adamson, 6 Cr. App. R. 205.
2 Makln v. Att.-Gen. (for New South Wales), L. R. [1804] A. C. 57
(K. S. C. 485). This decision may indeed be regarded as declaring the
evidence admissible to prove, not merely the mevs rea, but even the act of
killing; see per Pickford, J., 5 Cr. App. R. 240, and per Lord Atkinson,
6 Cr. App. R. 37.
« 34 and 35 Vict. c. 112, s, 19.
23—2
356 Discrediting a witness [ch.
thus applied in the case of a prisoner's character, the badness
of a witness's character is always relevant, but its goodness'is
not. For the party by whom witnesses are produced cannot
(in the first instance) corroborate them by offering proof of
their good character or even of their having on former
occasions told the same tale they now telP. But the party
hostile to these witnesses may discredit their characters, or
may prove that at one time they told a different story.
Sometimes this is done by mere cross-examination, some-
times by evidence. Thus the hostile party may call evidence
to shew : —
(1) That the witness is notoriously mendacious. This
practice is now very rare ; for it was decided in Rex v.
Watson' that no evidence can be given of any particular
misconduct of his, and the only question to be asked is the
vague general one, "Is he to be believed on his oath'?"
— as if mendacity were a fixed habit that did not vary
with subject-matter and with personal interests. (The party
who has produced the witness can never discredit him thus,
even if he turn out utterly hostile.) When such evidence is
given it entitles the other party to contradict it by bringing
proof of his witness's good character for veracity*.
(2) That he is biassed^ Bias may, for instance, be
shewn by evidence that the witness has received money, or
^ Similarly, evidence to corroborate a prisoner's defence by shewing that
he told his present story before ever he was accused, is considered too remote
to be relevant. In Mrs Maybrick's case, Stephen, J., said, " Its admission is
essentially reasonable ; but the law does not allow it." Yet it may perhaps
be doubted whether it would be wise to admit such evidence ; inasmuch as it
could always be easily created on purpose by a far-seeing offender.
^ In regard to the discrediting of the spy, Castles ; the celebrated cross-
examination of whom by Sir Charles Wetherell deserves study; 32 St.
Tr. 284.
» 32 St. Tr. 486 ; Meg. v. Brouit, L. li. 1 C. C. K. 70.
* In Elizabeth Cannmg^s Case, the witness Fortune Natna was dis-
credited thus, and afterwards thus recredited, 19 St. Tr. 588, 595.
^ Att.-Gen. v. Hitchcock, 1 Ex. K. 94.
xxv] Discrediting a loitness 357
has offered money to other witnesses; or that he has
threatened revenged And even mere relationship to the
litigant who produces him is some evidence of bias^
But no proof of bias can be given unless the witness has
been cross-examined on the point, so as to have had an
opportunity of explaining the circumstances.
(3) That on some relevant fact, to which he now de-
poses, he had previously made a statement inconsistent with
what he now says. Here, again, before proof can be given
of the discrediting statement, the witness's attention must
be specifically drawn to it in cross-examination, in order that
he may, if possible, explain it^ In criminal cases this mode
of discrediting is an especially frequent one; because most
of the mtnesses at the trial have already given evidence,
viz., at the preliminary examination before the justice of the
peace who committed the prisoner for trial. At common
law, if the previous statement were in writing {e.g., a de-
position^ at this examination for commitment), the cross-
examiner had to put it in as part of his own evidence, (thereby
giving the other party a right to a speech in reply), before
even asking the witness about it. But now by statute^ he
need not put it in, unless he desires actually to contradict
what the witness says in cross-examination. And the judge
may use it for such a contradiction, although the cross-
examiner has not put it in.
Even the party who produces a Avitness is allowed to
discredit him by thus proving a previous inconsistent state-
ment of his, should he turn out to be (in the opinion of
the judge himself) hostile to that party. And, even with-
out any such recognition of his hostility, the assertion which
he now makes may be contradicted by the subsequent
1 Rex V. Yewin, 2 Camp. 637 (K. S. C. 543).
- Thomas v. David, 7 C. and P. 350 (K. S. C. 544).
3 Angus v. Smith, Moo. and M. 473. * See p. 450 infra.
5 28 and 29 Vict. c. 18, s. 5.
358 Discrediting a witness [ch.
mtnesses, called on the same side, if it be a fact which is
intrinsically relevant to the issue. For clearly those wit-
nesses who could have spoken to this fact if they had been
examined before he was, cannot be excluded by the mere
accident of his having been called first*.
Besides these three modes of discrediting a witness by
the evidence of other persons, his credit may be shaken by
his own cross-examination^ and sEaken in a manner much
more extensive. For he may be cross-examined not only on
the matters already mentioned — his mendacity, his bias, his
former inconsistent statements — but as to any past conduct
of his of a discreditable character. This rule is often made
use of to elicit facts which are admissible for this purpose,
with the object of really employing them on account of their
bearing upon the main issue in the case ; though that bearing
is too remote to suffice to render them legally admissible as
evidence relevant to it. Thus on an indictment for ravishing
A, a letter written to the prisoner immediately afterward by
A's father, demanding a pecuniary compensation, cannot be
put in evidence to discredit A herself, (unless there be legal
proof that she authorised its being written); but, if her
father be called as a witness he can be asked about it, to
discredit him, and it will thus effect, indirectly, the more
important result of discrediting her.
It must be noted that the answers which a Avitness gives
to questions that are put merely to discredit him, are "final,"
i.e., the cross-examiner cannot call evidence to disprove them ;
for thus to digress into the determination of side-issues might
render a trial interminable. (The legislature has, however,
created an exception in one case, in which the disproof is
peculiarly simple and peculiarly important ; for by 28 and 29
Vict. c. 18, if a witness denies, or refuses to answer about,
having been convicted of a crime, evidence of that conviction
> Greevough v. Ecclea, 5 C. B. (N. S.) 803 ; cf. 4 B. and Ad. l'J7, and
6 Bing. 50. See, too, Coles v. Cola, L. B. 1 P. D. 70.
XX v] Best evidence necessary 359
may be given.) If, however, the discreditable act were rele-
vant not merely to credit but also directly to the actual issue
in the litigation, evidence might of course be given, in re-
gard to it, in contradiction of the witness ; for such evidence
would have been intrinsically admissible even if he had never
been examined.
For instance on an indictment for rape, if the prosecutrix
be cross-examined as to her unchastity with third persons,
and deny it, she cannot be contradicted ; and consequently,
witnesses to her good character cannot be called by the
prosecution to confirm her denial. But if the question had
related to her previous unchastity with the prisoner himself,
or to her being a common prostitute, her denial might be
contradicted ; for these facts, if true, would not merely affect
her credit but would be relevant to an essential part of the
issue, viz., whether the act now complained of took place
against her will'. Similarly if in cross-examination a witness
denies having been di'unk at the time when he watched the
events that are in issue, he may be contradicted on this
point by direct evidence.
Thus evidence can be called to contradict a witness
only as to his answers about (1) his bias, or (2) his own
previous inconsistent statements, or (3) facts which the
opposite party could have proved as part of his own case.
Rule VI. The best evidence must be given or its
absence must be accounted for.
The rule is usually stated, by writers and by judges, in
this general language; but its actu al application is limited
to one particular case, viz., the proof of the contents of a
written document. The bare fact that the document has
actually been drawn up*, or the mere condition of it, may be
proved ^ secondary evidence, that is, by the production, not
» Reg. V. Riley, L. E. 18 Q. B. D. 481.
3 Jolley V. Taylor, 1 Camp. 143 (K. S. C. 494).
360 Be fit evidence nece^^ary [ch.
of the document itself, but of remoter evidence derived from
it through some intermediute channel ; such evidence, for
instance, as copies made from it, or the recollections of a
witness who has seen it. But if, on the other hand, it is
desired to prove what the actual contents of the document
were, then the rule now under discussion excludes all mere
secondary evidence. Thus where it is sought to give the
contents of a message sent by telegram in evidence againat,
the sender of it, the original paper handed in by him at the
post-office must be produced. The subsequent paper, whicb
the telegraph boy delivered at the house of the receiver of
the telegram, carmot be given in evidence for this purpose,
(unless it be proved that the first-mentioned paper has been
destroyed or lost'). It, however, would be otherwise if the
object were to prove not what message was sent, but what
message was in fact received ; for then the positions would
be reversed, and the paper brought by the boy would be the
necessary " best evidence."
Accordingly when, in any litigation, a witness is asked,
"Was any bargain made on this subject?" the opposing
counsel will probably interpose by asking, " Was it made in
^v^iting?" For if it were embodied in written words, the
witness must not give parol evidence about them. Thus a
witness, as Lord Eldon said, " may be asked whether a parti-
cular house was purchased and conveyed ; but, if he states
that it was conveyed by a written instrument, then the
examination must stop there." Similarly it would not be
permissible to ask, " Did you write a note to your master
asking to be taken back into service ? " for that would be to
elicit the contents of the note without producing it. The
utmost that the examiner can do will be to ask, " After leav-
ing your master's service did you write to him ?" and, on
getting an affirmative answer, to proceed ; " Alter so writing,
were you taken back into his service ?"
1 lleij. V. liojan, IG Cox 203.
XX v] Secondary evidence 361
But the rule only applies where the object desired is
to prove what actually were the contents of a document.
Hence where words have been uttered orally, by a person who
apparently read them out from a paper, if the object be to
shew, not what the words of the document itself were, but what
he actually did utter, any persons who heard him may narrate
what they heard, and his paper need not be produced. For
the words he uttered may have varied from the written ones'.
Similarly, such a question as, " What did you tell your clerk
to state in the letter ?" would be quite permissible, if the
point to be proved be not the actual contents of the letter,
but merely what the witness intended those contents to be;
(as, for instance, where the only object is to shew his know-
ledge of the matters thus mentioned by him to the clerk^).
It will, however, sometimes happen that no primary
evidence is available. In that case the production of the
document will be dispensed with, and secondary evidence
may take its place. The following are the most frequent
instances in which this occurs.
(1) When the writing has been destroyed; or where,
after proper search having been made for it^ it cannot be
found. Thus on a trial for forgery the contents of the note,
which was alleged to have been forged, were allowed to be
proved by parol evidence, because the prisoner had himself
swallowed the note*.
(2) When its nature is such that it is physically impos-
, - sible to produce it ; as in the case of a placard posted on a
4(A4A ys^^^> or of a tombstone. This has at times been extended
^ to cases where it was not absolutely impossible, but only
extremely inconvenient, to produce the writing; as when,
1 Rex V. Sheridan, 31 St. Tr. 673—674 ; Hex v. Dewhurst, 1 St. Tr. (N. S.)
558.
" Cf. Rex V. Thistlewood, 33 St. Tr. 757.
8 BreiDSter v. Seioell, 3 B. and A. 296. •• 14 East 276.
6 Rex V. Fuisey, 6 C. and P. at p. 8i (K. S. C. 884).
362 Condition of Chattels [ch.
in Rex v. Hunt^, parol evidence was admitted of the in-
scriptions on the banners and flags that had been displayed
at a meeting.
(3) When the \vriting is in the possession of the oppo-
site party- and, though notice has been given to him to
produce it, he fails to do so. Sometimes the very nature of
the litigation is of itself a sufficient notice to him that his
opponent expects him to produce the document.
(4) When the secondary evidence which is tendered
consists of an admission, by the opposite party himself, as to
what the contents of the document were'.
(5) When the original is a " public " document, it is now
provided by statute, that it may be proved by means of an
examined copy*.
(6) When the original is an entry in a banker's book it
is now provided by statute that it may be proved by a copy
of the entry, if verified by some officer of the bank either
orally or even by mere affidavit'.
The rule goes no further than simply to postpone all
secondary evidence whatever of the contents of documents
to the primary evidence of them. It takes no heed of the
different degrees of value of various kinds of secondary
evidenced For instance, it will allow a witness to give his
mere recollections of the contents of a document, even when
some attested copy of it is available. And the rule ceases
to have any operation at all, where the Thing under dis-
cussion is not a written document. For where, in any
litigation, the quality or condition of some chattel is
in dispute, the law does not similarly require the chattel
1 3 B. and A. 566. " Tiosecutor is not a "party."
8 Earle v. Picken, 5 C. and P. 542. ■• 14 and 15 Vict. c. 99, s. 14.
» 42 and 43 Vict. c. 11. « x)oe v. Boss, 7 M. and W. 102, 106
xxv] Hearsay evidence 363
itself to be produced in court for actual inspection*. If the
purchaser of a horse, or of a diamond-ring, or of corn,
refuses payment of the price because the animal is unsound,
or the jewel is false, or the grain does not come up to sample,
he need not produce the horse, or the ring, or the sample ;
(though he will arouse suspicion by not producing it-).
Similarly, in an action to recover compensation for the
damage sustained by a bicycle which a cart has run down, it
will not be necessary at the trial to produce the bicycle.
Equally little is any such principle applied to the proof of
handwriting ; for it is not essential that the party, who is
alleged to have signed a document, should himself be called
to prove, or (as at a trial for forgery) to disprove, his hand-
writing*. And, as we have seen, to prove that a person
holds a public office, {e.g., that of a justice of the peace or
of a solicitor), it is sufficient to give evidence that he is in
the habit of acting as a holder of it, without producing the
written commission by which he came to hold the office.
Finally it may be noted, as a further illustration of the
limited application of the " best evidence" principle, that the
law does not prescribe any preference between different
species of Primary evidence. Thus the testimony of a witness
who had watched through a telescope an assault, which took
place a mile away*, would not be postponed to the testimony
of the actual victim of the attack.
Rule VII. Hearsay evidence is inadmissible. That is
to say, a witness who has received from some one else a
narrative of facts, even though they be the very facta
probanda, is not allowed to give this narrative in evidence.
The untrustworthiness of mere Hearsay appears to have
been recognised in England as early as 1202; and in the
same century Bracton repeatedly disapproves of all such
1 Reg. V. Francis, L. R. 2 C. C. R. 128 (K. S. C. 492).
* Armory v. Delamirie, 1 Str. 504. ^ Rex v. Hughes, 2 East P. C. 1002.
* See in The Times of Feb. 26th, 1901, an instance of such a witness.
364 Hearsay evidence [ch.
"testimonium de auditu alieno'." Yet when, in course of
time, the procedure of trial by jury and witnesses became
established, hearsay evidence was at first freely admitted.
Thus, in 1603, on the trial of Sir Walter Raleigh, a witness
was allowed to narrate that "Mr Brooke told me he had
heard of a most dangerous plot," and that " a Jesuit, who
was in company with honourable lords, whispered one of
them in the ear saying, that..." etc. But in 1660^ we find
hearsay only received after direct evidence has been given,
and merely to corroborate it; and thus not admissible
of itself. And within another generation the full modem
principle of exclusion had become accepted — probably the
earliest of all the rules of evidence— for in 1G83, the one
caution which Algernon Sidney's counsel could furnish him
with was to bid him, " Desire that evidence of Heai-say fi-om
witnesses may not be given ; and suffer it not to be given."
Accordingly in 1684, Lord Jeffreys, C.J., says^, " What the
witness heard from the woman is no evidence. If she were
here herself and did say it, but not swear it, we could not
hear her ; how then can her saying it elsewhere than here be
evidence before us ? I wonder to hear any man that wears a
gown make a doubt of it !"
Yet in continental countries, even now, hearsay evidence
remains acceptable. In the Dreyfus case the great bulk of
the evidence given was the merest hearsay*. For on the
1 Pollock and Maitland, ii. 620. The Romans recognised its defects
even in the time of Plautus : " Pluris est oculatus testis unus quam auriti
decern: qui audiunt, audita dicunt; qui vident, plane sciunt." Plant.
Trucul. u. 6. Yet in 1598 even Bodin said, "In cases of witchcraft,
common repute is almost infallible"; (D6monomanie, iv. 4).
"- At the trial of the regicide Hulet, 5 St. Tr. 1195.
8 9 St. Tr. 1189.
* In a recent famous Belgian trial the following fifth-lmnd evidence was
received, " He told me that Mrae. Lagasse had heard from a lady that Van
Steen told her he knew the prisoners were guilty." In the great French case
of Galas, a.d. 17G2 (Encyc. Britannica, Art. Galas), his threat to murder was
only proved at sevenlh-\\a.nii.
xxv] near say evidence 365
continent, as in Scotland, trial by jury was not introduced
until so late an epoch that the admission of hearsay had
become a practice too inveterate to be shaken. Before that
introduction it was comparatively innocent, for when trained
judges are to determine the facts in dispute they can trust
themselves to give hearsay evidence only its due weights
The peculiar (and emphatic) exclusion of hearsay in
England is due to its evident untrustworthiness, since it is
derived ultimately from an absent witness who was not on
oath and did not undergo cross-examination ^ And the
exclusion is further justified by the necessity of avoiding
that prolongation of trials which would be produced by the
admission of a range of evidence, so indefinitely wide, and
yet of such trifling value.
Hearsay usually appears in the shape of some other
person's written or oral statements ; but evidence of his mere
conduct, unaccompanied by any statement, will be rejected
on the same principle, if it be adduced for the same purpose,
viz., of shewing his state of mind with regard to some fact
which it is sought thereby to prove. As was said by Baron
Parke', the conduct of a deceased sea-captain, who examined
every part of a vessel and then deliberately embarked in her
with his family, cannot be given in evidence to shew that
she must have been seaworthy.
It is important to notice that the rule only excludes
evidence about such statements or conduct as are merely
narratives of a fact that is in dispute in the litigation ; but
not evidence about such statements or conduct as actually
constitute in themselves such a fact. Thus in an action for
slander, a witness can of course narrate the defamatory words
which were uttered, for they are a main part of the issue.
And, similarly, evidence may be given of any statement
1 Cf. Lord Mansfield's remarks in the Berkeley Peerage Case, 4 Camp. 415.
2 See Hex v. ErisweU., 3 T. R. 707 (K. S. C. 495).
* Doe d. Wright v. Tatham, 7 A. aud E. at p. 383.
366 Complaints [ch.
which, though not itself constituting a fact relevant to
the issue, nevertheless accompanied some act which does.
For such a statement must throw light upon the character
and purpose of this act*, and is itself a part of the "res
gestae." It is not necessary that it should have been uttered
by the very person who did the act. It is sufficient if it
were uttered in his hearing, and he may be taken to have
assented to it; as when evidence was given against Lord
George Gordon'' in the case of the seditious cries uttered by
the rioters whom he led. Similarly not only the remarks
made by persons engaged in drilling, but also those made by
persons who were watching them drill, have been allowed to
be given in evidence against the former to shew the illegal
purpose of the drilling^ And when a libellous picture has
been exhibited in public, remarks uttered by the spectators
whilst looking at the picture may be given in evidence
to shew whom the figures in it were meant to represent*.
But the rule is confined to utterances that are strictly simul-
taneous with the res gestae^] and even such as are made
only a few minutes after the transaction is over will be
regarded as mere narratives, and accordingly excluded*.
In some cases a complaint, although not uttered till some
time after the conduct complained of, is admitted as evidence.
But this is only allowed after the person complaining has
given testimony as a witness in the case; and, even then,
only for the purpose of corroborating that testimony (by
shewing the complainant's consistency of conduct), and not as
being intrinsically any evidence at all of the alleged act com-
plained of. Thus in a wife's suit for judicial separation, on
the ground of cruelty, the question, " Did the petitioner com-
plain to you of her husband's cruelty?" is always allowed to
1 Per Bayley, J., in Bedford v. Birley, 1 St. Tr. (N. S.) 1244.
2 21 St. Tr. 535. » Bedford v. Birley, 1 St. Tr. (N. S.) 1071.
< Du Bast V. Beresford, 2 Camp. 511 (K. S.C. 497).
» Aveson v. Lord Kinnaird, East 198 (K. S. C 498).
« Bey. V. Bedinyfidd, 14 (Jox Ul (K. S. C. 501).
XX v] Admissions 367
be put (even by the examiner-in-chief) to such of her wit-
nesses as are examined subsequently to herself. And so, in
cases of violent sexual assault on a female, evidence that she
afterwards complained about it, will be admitted in criminal
(but not in civil) proceedings if she has been examined as
a witness. It is now decided^ that not merely the fact of
complaint having been made but even the details uttered
in it are admissible. The precise scope of this decision is,
however, still far from clear; opinions differing as to whether
(a) the details, or even {b) the mere fact, of the complaint
will now be admissible in all crimes, or only in offences
against the person, or — still more probably — even only in
sexual ones^ or perhaps only in sexual ones against females.
There are, however, some well-ascertained and much more
important cases in which mere hearsay, (i.e., a narrative of
the past), is freely and fully admitted as evidence. Of these
exceptions we may now discuss such as are accepted equally
in civil and criminal tribunals ; (postponing for the present
some others which only concern the latter). The following
deserve careful attention : —
(1) Admissions made by, or by the authority of, the
party against whom they are produced. (The term " admis-
sion " is here used in the wide sense, which it always bears
in civil cases ; though in criminal cases it is usually applied
only to those individual details of fact which do not involve
the criminal intent, an admission of full guilt being styled
1 Reg. V. Lilhjman, L. R. [1896] 2 K. B. 167 (K. S. C. 503). The complaint
must be spontaneous, e.g., not caused by leading questions. Aud must
perhaps not be loritten complaint; for the recipient has not the opportunity
of noticing tlie complainant's demeanour ; iJe/;. v. Ingrey, 64 J. P. 106.
So Wright, J. (at the Lincoln Assizes of July, 1900), refused to allow
a letter, written only four hours after the occurrence, to be put in, though
he did not actually rule it to be inadmissible in strict law.
2 Rex V. Osborne, L. R. [1905] 1 K. B. 551, shews that its ajiplication is
not limited to those sexual crimes in which Consent would be a deience.
368 Admissions [ch.
in criminal cases a "confession") The authority need not
expressly relate to the particular statement; so a man will
be responsible for any admissions made on his behalf in
the ordinary course of business^ by his partner or his agent,
or even by some one to whom he has referred some third
person for information on the subject concerned ^
An admission may be made either expressly, in words
(either spoken or written), or tacitly, by mere silent conduct.
An instance of an express admission is furnished by the case
of Malthy v. Christie^. One party to the case, who was an
auctioneer, had issued a catalogue in which he described
certain goods as being the property of a bankrupt ; and this
fact was held to render it unnecessary for the other party to
produce any further proof that the person to whom they
belonged had really become bankrupt. Tacit admissions
present more difficulty. An instance of one would arise if a '
man were shewn to have posted to his mother a copy of a
newspaper which contained an account of his wedding^ He c
may reasonably be inferred to have posted it in order to
announce his marriage ; and his doing so constitutes a tacit
adoption of the newspaper's statements. Hence on his
indictment for bigamy, they will be evidence to connect
him with this marriage, (alike whether it be the iirst one
or the criminal one). A less simple but more familiar illus-
tration is afforded whenever a statement is uttered in the
presence of some one who would naturally contradict it if it
were not true, and who nevertheless remains silent. Qui
tacet consentire videtur; he impliedly admits its truth. In
this way, hearsay is often rendered admissible by the
question, " Was the other party [to this litigation] present
when you heard that man say this?" Thus in an action for
> Rapp V. Latham, 2 B. and A. 795.
2 Williams v. Innes, 1 Camp. 364 (K. S. C. 507).
3 lEsp. 340(K.S. C. .50fi).
* Beg, V. McCujjeity (Gliamue>'B Irish Utate Trials oj ltiG7, p. 6G0).
xxv] Admissions bij Silence 369
breach of promise of marriage, if the plaintiff was heard to
say to the defendant, "You always promised to marry me,"
his mere silence is sufficient coiToboration of her statement ^
Yet the mere fact of the other party's having been present
will not let in this evidence, if the circumstances were such
as to make it unlikely that he would contradict the state-
ment even if he knew it to be false. And since the act of
admission lies purely in his demeanor, {e.g., his silence), and
the statement uttered before him only becomes admissible as
accompanying and explaining that demeanor, it follows that
if his conduct involves no admission — e.g. (usually) if he ^fj(y^ If-
denies the truth of the assertions — then, though uttered in ^\
his presence, they cannot be taken as evidence against him^ -'Vv'.
And even without his going so far as to deny it, his de-
meanor may fall short of constituting any such admission
as will render it evidence. Thus when a magistrate brought
a prisoner into the presence of his dying victim, who then
made a statement to the magistrate about the crime, which
the prisoner did not contradict, this statement was neverthe-
less held to be inadmissible^; for the prisoner might well
have kept silent by his respect for the magistrate, and his
silence therefore raised no fair inference of his assent. In
the same way if a person, after having received a letter
asserting that he had made a promise of marriage or accusing
him of having committed a crime, should never send any
reply to the letter, this inaction will be no proof that he
admitted the promise or the accusation, and consequently will
not enable his opponent to put in the letter as evidence against
him^ Yet it would be different in the case of any letter —
such as a mercantile one — which it would be the ordinary
1 Bcssela v. Stern, L. R. 2 C. V. D. 265.
2 Eex V. Christie, L. R. [1914] A. C. .515.
3 Reg. V. Gilligan, 3 Crawford and Dix 175 ; cf. Child v. Grace, 2 C. and
P. 193. See p. 388 infra as to its admissibility as a "Dying Declaration."
* Wiedemann v. IValpole, L. R. [1801] 2 Q. B. 534.
K. 2'i
370 Pedigrees [ch.
course of business to contradict at once, if the recipient
dissented from the statements it contained. So the fact that,
to a letter which contained a "statement of accounts, no reply
was sent, is some evidence of the correctness of those
accounts'. In like manner, when papers are found in a
person's possession, even though they were not written by
iDut to him, they may be evidence against him. For his
conduct in having preserved them affords some evidence that
the contents of them had reached his knowledge ; and also
some (though weaker) evidence that he approved of them.
It must be remembered that when an admission is given
in evidence against a party, he can demand that the whole
statement, and not merely the inculpating part, shall be
brought out^ And if this statement was qualified or ex-
plained by any other statement made at the same time, or if
it referred expressly or impliedly to any previous statement,
such statements may be incorporated with the inculpating
statement*. But this rule as to taking the whole of an
admission has no application to warrants of arrest ; for they
are not admissions, i.e., statements of what has been done,
but of what is directed to be done.
(2) When in examination-in-ohief a witness has said,
" In consequence of what I heard or read, I did so and so,"
the cross-examiner will be entitled (though the party call-
ing the witness was not) to ask what the witness heard, or
to call for the document which he read. For otherwise the
witness's evidence would be left incomplete. A re-examiner
may similarly' supplement a cross-examination.
Four other exceptions arise in cases of Death.
(3) Thus, one exception is, that in questions of Pedigree,
evidence is allowed to be given of statements that were
made, before any dispute arose, by deceased members of the
1 Fairlie v. Denton, 3 C. and P. 103.
2 Supra, p. 349 ; Randle v. Blackburn, 5 Taunt. 245.
8 Vcnnell v. Meyer, 2 Moo. and R. 98.
xxv] Public Rights 371
family, as to births, marriages, or deaths, (or the dates when ,/- 7, , ,
these events occurred), or as to relationships. The deceased
person must have been an actual member of the family, not ^
a mere servant or friends And he must have made his
statement before any dispute on the matter had arisen^ as
that might have tainted him with some bias. But he need
not have spoken from personal knowledge of the fact he
narrated ; family tradition is sufficient.
The introduction of this exception is due to the difficulty
of obtaining any first-hand evidence of events after intervals
of time so long as those over which disputed genealogies
often extend. It is, however, (for no very obvious reason)
restricted to cases strictly genealogical ; so that if a defendant
sets up a plea of infancy, he cannot support it by merely
proving what his deceased mother said as to the date when
he was born-'.
(4) A similar exception is recognised in regard to dis-
putes as to Public Rights, which may concern all the King's
subjects {e.g., the existence of a highway), and even as to
General Rights, which concern only some large class of people
{e.g., the customs of a manor, or the boundaries of a parish).
For in all such cases — unlike disputes as to a private right of
way or the boundaries of a private person's estate — evidence
of mere Repute is admissible ; and may be given even by
narrating statements that were made (whether orally or in
writing), before any dispute arose, by deceased persons who
were likely to have a competent knowledge of the subject.
But such statements can only be given in evidence so
far as they relate to current Repute. They cannot bo
adduced to shew any particular facts that would bear on the
^ Johnson v. Lawson, 2 Bing. 86.
- Berkeley Peerage Case, 4 Camp. 401.
^ Figg V. Wedderburne, 6 Jurist 21S.
24—2
372 Entries against Interest [ch.
question^ e.g., the fact of the deceased person's having seen
boys whipped or cakes distributed at a particular place, by
some person who wished thereby to commemorate its being
a parish-boundary.
(5) Declarations made by a person, now deceased,
against his pecuniary or proprietary interest are admissible.
Thus a declaration of a deceased person as to the terms of
his tenancy of a house has been admitted as sufficient both
to rebut the presumption of law^ that the person in pos-
session of real property holds it in fee simple, and also to
establish the actual amount of rent which the deceased paid'.
And when any such declaration is admitted, all details which
form part of the same statement will be admitted, even
though they were in no way against the deceased man's
interests*. Thus the fact of a life estate having been surren-
dered has been proved by the entry in a deceased solicitor's
ledger of his having been paid for carrying out the surren-
der' ; and the date of a child's birth by a similar entry in
the accoucheur's accounts of the payment of his fee for his
attendance*. This class of evidence usually takes the form of
written entries made by the deceased; but it is none the less
admissible if the declaration were oral'.
Since this principle only admits declarations against the
pecuniary or proprietary interests of the deceased man, his
declaration that he — and not certain suspected persons —
committed a crime, would not be admissible as evidence on
behalf of those persons should they be indicted for this
crimed
1 Rex V. Bliss, 7 A. and E. 550.
2 Supra' ^. 328.
* Reg. V. Churchwardens of Birmingham, 1 B. and S. 703 (K. S. C. 512).
* Peaceable v. Watson, 4 Taunt. 16.
5 Warren v. Greenville, 2 Strange 1129 (K. S. C. 511).
'' Higham V. Ridgwutj, 1 East 109.
7 27 T. L. 15. 202. « U CI. and E. at y. 112.
xxv] Entries in Business 373
(6) A similar privilege is extended to statements
(whether written or oral) made by a person, now deceased, in
the discharge of a duty'^ which he owed to an employer, in
the ordinary course of his employment^ ; even though they
may be actually in favour of his own interests. Thus the fact
that a man was served with a writ may be proved by the
indorsement made on it by the deceased clerk who served it^
and the note entered by a deceased drayman, in a book kept
for that purpose, of having made delivery of certain goods is
evidence that those goods were so delivered^ But, as the
mere routine of business affords a less effective guarantee for
accuracy than does self-interest, this privilege is restricted
by some limitations that were not imposed upon the one
which we last explained. Thus a statement is not rendered
admissible by having been made in the course of employ-
ment, unless it was made at the time of the occun-ence
to which it relates, — i.e., within so few hours of it as to be
practically a part of the transaction^ And moreover the
admission of such a statement will be limited strictly to its
mention of those circumstances which were essential to the
performance of the duty ; and will not, as in the case of a
statement made against interest, cover the collateral details
which may have been added^ A third limitation is that it
must record, not mere hearsay but, the personal knowledge of
the person recording. Thus, if a deceased clergyman has, in
his duty, entered that he " today baptised the child of A and
of B his wife," though the entry is evidence of the baptism,
it is not evidence of the wifehood'', (unless the clergyman
happens to have been present at the marriage also).
1 Mellor V. Walmesley, L. R. [1905] 2 Ch. 164.
2 Reg. V. Buckley, 13 Cox 293; a case of oral statement.
8 Poole V. Dicas, 1 Bing. (N. C.) 649 (K. S. C. 514).
* Price V. Earl of Torrington, 1 Salk. 283 (K. S. C. 514).
5 Doe V. Turford, 3 B. and Ad. 897; cf. 29 T. L. R. 28.
8 Chambers v. Bernasconi, 1 C. M. and R. 347.
' liyan v. liyaii, 25 Irish L. R. 185.
374 Competency [ch.
Rule VIII. The judges of the eighteenth century went far
in excluding the testimony of witnesses who seemed to them
to be likely, from personal interest in the case or other causes,
to give but untrustworthy evidence. A reaction, however,
against this tendency was initiated by Jeremy Bentham.
He y)ointed out that even the plainest jurymen are on the
alert to suspect bias in a witness ; and moreover that from
ever}'- witness's evidence, whether true or false, instructive
inferences may be drawn, the very fact that he thinks it
worth while to lie being itself a suggestive one. The in-
fluence of Bentham has brought about legislative reforms
which have removed almost all objections to the competency
of witnesses on the ground of Bias' or of Character; it
being left to the jury to take account of these considera-
tions when deciding upon the weight to be attached to their
evidence.
But (1) an adequate degree of Understanding is, of
course, necessary in a witness ; and, on the ground of want
of understanding, children or insane persons may still be
excluded if the judge finds, on investigation, that they are
incapable of comprehending the focts about which they are
to testify. But a lunatic is not necessarily incompetent to
give evidenced The principle is just the same as is applied
in substantive criminal law* to the liability of infants and
of lunatics. But the arbitrary rule treating children under
1 In 1843, Lord Denraan'a Act made mere interest cease to be a dis-
qualification ; and in 1846 and 1851 Lord Brougham's Acts qualified even
the parties to a suit to give evidence.
« Re(]. V. Hill, 2 Den. 254. On the trial at New York, in 1901, of an
attendant in a lunatic asylum for the murder of a patient, two persons of
undoubted insanity were admitted as witnesses; on the authority of the
decision of the Supreme Court of the United States in Columbia v. Amies
(107 U. S. 419), that it is for the court, after hearing evidence as to the
mental condition of the witness, to decide whether or not his insanity
extends so far as to prevent "his giving a perfectly accurate and lucid
statement as to what he has seen and heaid." Cf. C. C. Sess. Pap. lii. 617.
* Supra, pp. 49, 51.
xxv] The Oath 375
seven years of age as necessarily too young for criminal
liability has no counterpart in the law of Evidence, it being
now settled that competency depends not upon the precise
age but upon the actual degree of intelligence of the
witness ^
(2) The value added to testimony by its being given
under supernatural sanctions is frequently so great that the
law formerly made it essential to the competency of every
witness that he should know and accept the religious obliga-
tion of an Oath. (Increased intercourse with the East led in
the seventeenth century to the recognition of Muhammadans,
and in the eighteenth to that of Hindus, as satisfying this
condition, and being entitled to be sworn with their own
sacred ceremonies^.) But now, even in the case of adult
witnesses, the rule is no longer universal ; for, by the Oaths
Act, 1888^ " Every person objecting to be sworn, on the
ground either that he has no religious belief or that the
taking of an oath is contrary to his religious belief, shall be
permitted to make his solemn affirmation, in all places and
for all purposes where an oath shall be required by law."
And as regards "children of tender years," one who does
not understand the nature of an oath may yet give evidence
unsworn'*, if it is of sufficient intelligence and " understands
the duty of speaking the truth." But the accused is not
to be convicted on such evidence unless it be corroborated
by material evidence which implicates him (cf. p. 386
infra).
1 Rex V. Brasier, 1 Leach 199. Five is usually too young ; 2 Cr. App.
R. 283.
2 Omichund v. Barker, 1 Atk. 21.
3 51 and 52 Vict. c. 46 ; replacing an Act of 1869, which was of more
limited extent.
■* See the Criminal Justice Administration Act, 1914, s. 28 (2), uuiver-
salising s. aO of the Children Act, 1908 (8 Edw. Yll. c. 07).
376 Privileged silence [ch.
Rule IX. There are some questions which it is quite
legal to ask, but which a witness may, if he think fit, equally
legally refuse to answer. Such a privilege arises, for instance,
in the following cases : —
(1) A witness cannot be compelled to answer any
question which tends to criminate him. (For instance, even
when a witness has already been tried for a murder and
acquitted, he may still be in risk of criminating himself in
connexion with the very same crime, e.g., by admitting his
having been an accessory after the fact.) He must pledge
his oath that his answer would have this effect ; and it will
then be for the Court to decide whether the question seems
to be one which, under all the circumstances of the case\ it
would really endanger the witness to answer. For a merely
remote possibility of criminal prosecution'^ will not be
regarded as sufficient to entitle a witness to withhold in-
formation ^
(2) A witness cannot be compelled to produce his title
deeds for inspection. If however he is himself a party to
the particular litigation, he does not enjoy this privilege
except for deeds that are irrelevant to his opponent's case.
(3) A husband or wife cannot be compelled to disclose
any communications made to him or her, during the cover-
ture, by his or her wife or husband. This rule is based on
' Fisher v. Ronalds, 12 C. B. 765. A prisoner giving evidence on his own
trial has no privilege against criminating himself as to that accusation ; 61
and 62 Vict. c. 36, s. 1 (e).
2 Hex V. Boyes, 1 B. and S. 311 (K. S. C. 535).
» By 24 and 25 Vict. c. 96, s. 85, in a few peculiar offences of Misappropria-
tion, e.g., by trustees, agents, etc. (sitjira, pp. 235, 236), a witness has no
privilege against criminating himself in respect of such an offence, but he is
exempted from prosecution for it if he "first disclosed" it when thus under
compulsory examination. Cf. 53 and 54 Vict. c. 71, s. 27, as to compulsory
admissions in bankruptcy.
xxv] Privileged silence 377
the social importance of preserving the confidences of married
life.
(4) Counsel and solicitors can not be compelled — and
indeed are not even permitted — to disclose facts confided to
them by^ or on behalf^ of a client, or to produce any docu-
ments received by them from a client, in their professional
capacity, unless the client consents to waive this privilege ;
for it is his, and not theirs. No such protection, however,
exists if the adviser was being consulted, not merely in order
to protect his client against the results of a past criminal act
but to facilitate the commission of some future one^
There is no similar privilege for confidences entrusted to
a medical or even to a clerical adviser*; nor for business
secrets {e.g., secret marks upon bank-notes).
(5) By a still stricter rule, one of Exclusion rather than
of Privilege, a witness cannot be compelled, and indeed will
not be permitted ^ to answer any question which involves a
disclosure of any official communications (whether written or
oral) which are such that — in the opinion of the judge —
disclosure of them would be contrary to public policy^
Hence in the case of prosecutions so important as to have
been (not merely nominally but actually) instituted by the
executive government, the name of the informer need not be
disclosed by a witness, nor can he be asked if he were him-
self the informer^ But it would seem that this rule does
1 Rex V. Withers, 2 Camp. 578 (K. S. C. 534).
2 Greenough v. Gaskell, 1 M. and K. 101. E.g., the statements made to
them bj' a witness as to what evidence he can give. Such statements are
often taken down in writing, and then signed by the witness.
•* Eussell V. Jackson, 9 Hare 392.
*. Wheeler \. Le Marchant, L. K. 17 Ch. D. at p. 681 ; Rex v. Gibbotis, 1 C.
and P. 97 (K. S. C. 524). ^ Rex v. Hardy, 24 St. Tr. at pp. 818, 820.
e Beatson v. Skene, 29 L. J. R. Ex. 430.
7 Att.-Gen. v. Briant, 15 M. and W. IGl) ; Marks v. Beyfus, L. R. 25
Q. B.D. 491. As to reports made to a Superintendent of Police by his
constables, see 65 J. P. 209.
378 Proof of documents [ch.
not extend to the case of communications made to a private
prosecutor, even where the prosecution is practically in the
bauds of the police.
Where any of these privileges is waived by a person who
is at liberty to waive it, the answer he gives will be perfectly
good evidence, even against himself; both in the proceedings
in which it is given and in any subsequent litigation. But
if, on the other hand, he claims his privilege, and yet is
illegally compelled to answer, his answer will not be evidence
against him, as an admission, either then or in any subse-
quent litigation. Yet against other parties it is evidence,
(since the privilege is only his and not theirs) ; and conse-
quently, if he were not himself a party to the particular
litigation, the validity of the trial will not be afifected.
Rule X. Where a document is tendered as evidence the
proof of genuineness necessary to secure its admission varies
with its age.
(1) If the document be less than thirty years old, ex-
press evidence of its genuineness must be adduced. In
ordinary cases, it is not necessary to do more than to shew
that the document or the signature to it is in the hand-
writing of the person by whom it purports to have been
executed. Hand\vriting may be proved by any witness who
from knowing the person's handwriting can swear to the
genuineness of the document ; or under a modern statute^
by letting the jury compare the document in question " with
any Avriting proved, to the satisfaction of the judge, to be
genuine," e.g., a signature made by the person whilst actually
in the witness-box before them^
1 17 and 18 Vict. c. 12.5, s. 27 ; extended to criminal cases by 28 and
29 Vict. c. 18, s. 8.
"^ Cobbett V. Kilminster, i F. and F. i[)0.
xxv] Ancient documents 379
But there are some instruments to whose validity some
further circumstance is essential; and in such cases, that
circumstance must also be proved. Thus where attestation
by witnesses is essential to the document' (as in the case of
a bill of sale) it must be shewn to have been duly attested.
To establish this fact one of those witnesses must, if possible,
be produced : but if none of the attesting witnesses can be
found ^ the handwriting of one of them must be proved, and
some evidence must be given as to the identity of the person
who actually executed the instrument with the person who
is under discussion in the litigation, unless the attestation
clause itself sufficiently identifies him'. Again, in the case
of deeds the further ceremony of sealing is necessary (though
any act by which the party adopts the seal will suffice); but
where there is an attestation clause the courts will, if the
signature be proved, accept this clause as sufficient evidence
of sealing and delivery*.
(2) In the case of documents more than thirty years old
(just as in questions of pedigree") the law of evidence is
relaxed to meet the difficulties produced by the lapse of
time*. Such documents, if produced from a proper custody,
"prove themselves," i.e., no express evidence of their genuine-
ness need be adduced. Nor is it necessary that the custody
from which such instruments come should be the most proper
custody for them to be in ; it is sufficient that the custody,
though not the best, is a natural one, i.e., one which, under
the circumstances of the particular case, appears to the judge
1 Wright v. Doe, 1 A. and E. 3. Cf. 7 C. and P. 574.
2 Crosby v. Percy, 1 Taunt. 364 ; Barnes v. Trompowsky, 7 T. R. 265.
3 Whitelock v. Miisgrove, 1 Crom. and M. 511.
" In re Sandilands, L. R. 6 C. P. 411. Cf. 7 Taunt. 253.
» Supra, p. 370.
" " Time with his scythe is ever mowing down the evidences of title ;
wherefore the law places in his other hand an hour-glass by which he metes
out periods of duration that shall supply the place of the muniments the
scythe has destroyed." Lord Plunket, L.C.
380 Ancient documents [ch. xxv
to be one naturally consistent vAt\\ the genuineness of the
document'. Thus although papers relating to an episcopal
see properly pass on the death of one bishop to his successor
in office, yet an ancient document would be allowed to " prove
itself," if it were produced from the custody of a deceased
bishop's descendants-.
> Doe V. Phillips, 8 Q. B. 158.
« Mealh v. Winchester, 3 Bing. (N. C.) 183.
CHAPTER XXVI.
RULES OF EVIDENCE PECULIAR TO CRIMINAL LAW.
In criminal cases the general principles of Evidence are
supplemented by some rules and modified by others, Avhich
do not hold good in civil litigation. Of these the following
deserve explanation here.
Rule I. A larger minimum of proof is necessary to sup-
port an accusation of crime than will suffice when the charge
is only of a civil nature.
Even in the latter case, e.g., in actions of debt, a mere
scintilla of evidence would not warrant the jury in finding a
verdict for the plaintiff, for there must (as we have seen') be
so much evidence that a reasonable man might accept it as
establishing the issue. But in criminal cases the presump-
tion of innocence is still stronger'^, and accordingly a still
higher minimum of evidence is required ; and the more
heinous the crime the higher will be this minimum of neces-
sary proofs The progressive increase in the difficulty of
proof as the gravity of the accusations to be proved increases,
is vividly illustrated in Lord Brougham's memorable words
in his defence of Queen Caroline: — "The evidence before us,"
he said, " is inadequate even to prove a debt — impotent to
1 Supra, p. 343 ; cf. 13 C. B., N. S., 916. =• Supra, p. 326.
3 The practical working of this is well shewn by the fact that whereas
the average percentage of convictions on criminal indictments in general is
about eighty, it is very much less on indictments for murder; e.g., in the
statistical year 1913, out of 45 persons who (besides the 22 others who were
shewn to be insane) were tried for murder, only 28 were convicted of it ;
i.e., less than sixty-three per cent.
382 Proof of crime [ch.
deprive of a civil right — ridiculous for convicting of the
pettiest offence — scandalous if brought forward to support
a charge of any grave character — monstrous if to ruin the
honour of an English Queen\"
It was formerly considered that this higher minimum
was required on account of the peculiarities of criminal pro-
cedure, such, for instance, as the impossibility of a new trial,
and (in those times) the refusal to allow felons to be defended
by counsel and to allow any prisoners to give evidence ; and
consequently that it was required only in criminal tribunals.
This view is still taken in America; but in England it is
now generally held that the rule is founded on the very
nature of the issue, and therefore applies without distinction
of tribunal. Hence, if arson be alleged as a defence by an
Insurance Company when sued on a fire-policy, or forgery as
a defence by a person sued on a promissory note, it cannot
be established in these civil actions by any less evidence than
would suffice to justify a conviction in a criminal court.
History shews how necessary is some such rule, emphatic
and universal, in order to protect prisoners from the credulity
which the shifting currents of prejudice will inspire about
whatever offence, or class of offences, may for the moment
have aroused popular indignation. No less enlightened a
jurist than Bodin maintained, in an elaborate treatise^
that persons accused of witchcraft ought to be convicted
without further proof, unless they could demonstrate them-
selves to be innocent — " for to adhere, in a trial for witch-
craft, to ordinary rules of procedure, would result in defeating
the law of both God and man^"
' Speeches, i. 2'27. ^ Dimonomanie, ed. 1598; bk. iv. ch. iv.
3 Similarly when in 1899 Esterhazy confessed in the Observer newspaper
that he had forged the famous " bordereau," in order that the suspicions
against Capt. Dreyfus niight be eked out by some item of actual evidence, he
justified himself by the plea that " on the trial of Spies, it is always necessary
to forge some documentary evidence [fabriijuer des preuves mat6rielles], or
no spy would ever be convicted."
xxvi] Reasonable doubt 383
Whenever, therefore, an allegation of crime is made, it is
the duty of the jury — to borrow Lord Kenyon's homely
phrase — " if the scales of evidence hang anything like even,
to throw into them some grains of mercy ^"; or, as it is more
commonly put, to give the prisoner the benefit of any
reasonable doubt. Not, be it noted, of every doubt, but only
of a doubt for which reasons can be given; (for everything
relative to human affairs and dependent on human e"vidence
is open to some possible or imaginary doubts). " It is the
condition of mind which exists when the jurors cannot say
that they feel an abiding conviction, a moral certainty, of
the truth of the charge. For it is not sufficient for the pro-
secutor to establish a probability, even though a strong one
according to the doctrine of chances ; he must establish the
fact to a moral certainty, — a certainty that convinces the
understanding, satisfies the reason, and directs the judgment.
But were the law to go further than this, and require abso-
lute certainty, it would exclude circumstantial evidence alto-
getherl" As was said by Cockbum, C.J., in the Tichborne
Case, " It must not be the mere doubt of a vacillating mind
that has not the moral courage to decide upon a difficult
and complicated question, and therefore takes shelter in an
idle scepticism." Or as the same truth was expressed by a
great Irish judge ^ "To warrant an acquittal the doubt must
not be light or capricious, such as timidity or passion
prompts, and weakness or corruption readily adopts. It must
be such a doubt as, upon a calm view of the whole evidence,
a rationalundereta nding will suggest to an honest heaij ^the
conscientious hesitation of minds that are not influenced by
part^, preoccupied by prejudice, or subdued by fear,"
Accordingly, a verdict of acquittal does not necessarily
mean that the jury are satisfied of the prisoner's innocence^;
1 Rex V. Had field, 27 St. Tr. 1354.
* Ffr Shaw, C.J., on the trial of Prof. Webster {supra, p. 339), 5 Gushing.
* Kendal Bushe, C. .J., Dublin Univ. Mag. xviir. 85. < Supra, p. 343.
384 A minimum of proof [ch.
it states no more than that they do not regard the evidence
as legally sufficient to establish his guilt. There is therefore
a fallacy in the old forensic argument of prosecutors, " you
must convict the prisoner unless you think my witnesses
ought to be convicted of perjury"; for the jury may well be
in utter doubt as to the propriety of either alternative'.
This abstract, and therefore necessarily vague, direction,
that they must be satisfied " beyond reasonable doubt," is
the only restriction which, in ordinary cases, English criminal
law imposes upon the discretion of juries in pronouncing
upon the sufficiency of evidence. The civil and the canon
law, on the other hand, required at least two witnesses'^;
and, from the frequent difficulty of obtaining these, had to
fall back upon confessions extorted by torture. The English
common law, by avoiding the unreasonable rule, escaped the
cruel consequence ^
The cases are rare indeed in which English law exacts
any defined minimum of proof for even a criminal charge.
But the following are important ones.
1 The same grand jury ignored alike the bill for perjury preferred against
Elizabeth Canning {m^ra, p. 31:55), and also the converse one which her
friends preferred against some of the witnesses who had accused her.
2 See Ayliffe's Parergon, p. 541. In some cases indeed (see Best on
Evidence, p. 81) the canon law exacted far higher degrees of proof; as
when it provided that no cardinal was to be convicted of uncliastity unless
there were at least seven — or in Fortescue's time, according to him (De
Laudibus, c. 32, ed. Amos, p. 113), twelve — witnesses. This requirement
was rendered the harder to comply with by the further rule of canon law,
that in criminal cases a woman could not be a witness. The result may
well have been the same as was produced by the similar rule of the Koran,
requiring all accusations of adultery to be supported by four eye-witnesses,
namely, that (according to Sir William Muir) " the threat of punishment
became almost inoperative." For by introducing artificial rules of proof into
the law of evidence it is easy to effect a modification of the substantive law,
whilst appearing to modify merely the adjective law ; the disguise being
closely akin to that under which the Praetores Urbani succeeded in
surreptitiously reforming the laws >>f Rome (Maine's Ancieiu Law, ch. in.).
^ See Pollock and Maitland, ii. G57.
XXV i] Evidence of Perjury 385
(1) In treason and in misprision of treason, as has been
provided by statute^ a prisoner is not to be convicted except
upon the evidence of two lawful witnesses, deposing either
to the same overt act or at least to separate overt acts of the
same kind of treason ; or upon his own voluntary confession
in open court. To secure the benefit of this rule, the oath
by which persons were admitted, in Ireland, into the Fenian
society was always administered by a single one of its
members, Avith no third person present.
(2) Upon an indictment for perjury or subornation of
perjui-y, or for any of the cognate offences created by the
Perjury Act 1911, (though the taking of the oath, or the
giving of the false evidence, may be proved by one witness),
the falsity of the evidence itself cannot be legally established
solely upon the testimony of one witness^ On each " as-
signment" of perjury the contradicting witness must be
corroborated ^ and on some material point. The question
as to whether a point is sufficiently material is for the judge.
not_the jury, to decide . It is not necessary that the circum-
stance should be so important that from it, standing alone,
the falsity of the perjured statement could have been in-
ferred. The corroboration may be by documentary evidence,
or a second witness, or some admission by the prisoner*,or other
similar circumstanced It will not be sufficient merely to
shew that the supposed perjurer has made statements directly
contradictory of each other, even though both of them were
1 1 Edw. VI. c. 12, s. 22; modified by 7 and 8 Wm. III. c. 3, s. 2 ;
supra, p. 275. But in most treason-felonies one witness suffices.
2 1 and 2 Geo. V. c. 6, s. 13, (the Perjury Act, 1911). See pp. 29S-9 supra.
* There are two instances where corroboration is, by statute, required in
non-criminal proceedings; viz., in bastardy cases, and in actions for breach
of promise of marriage.
•• Ileg. V. Hook, D. and B. 606 (K. S. C. 422). In some American cases,
perjury has been proved without any witness, by a combination of two
evidentiary documents; e.g., where both a letter written by the prisoner aiid
an invoice written to and preserved by him, contradicted him as to the
ownersliip of property. Such proof would probably be held sufficient in
England also. ^ Reg. v. Parker, C. and M. 646.
K. 25
386 A ccompliees [ch.
made on oath^ For this will leave it still utterly uncertain
which of the two statements was the false one ; and conse-
quently any indictment is impossible, for indictments cannot
be framed in a merely alternative form.
(.3) Under the Criminal Law Amendment Act, 1885^ it
is provided in regard to certain offences against women and
children that no person shall be convicted of these upon
the evidence of one witness alone, unless such witness be
corroborated in some material particular, and by evidence
which implicates the accused.
(4) Similar corroboration is required in those cases in
which under the Criminal Justice Administration Act, 1914^
and the Children Act, 1908, a very young child is allowed
to give evidence without being sworn". The precaution
is wise ; for a tribunal of adults is apt to place undue
reliance upon these little people. " Children are a most
untrustworthy class of w^itnesses : for, when of a tender age,
as our common experience teaches us, they often mistake
dreams for reality, repeat glibly as of their own knowledge
what they have heard from others, and are greatly influenced
by fear of punishment, by hope of reward, and by desire for
notoriety'."
(5) Where a witness was himself an Accomplice in the
very crime to which the indictment relates, it is the esta-
blished duty of the judge to caution the jury strongly as
to the danger of convicting upon such evidence without
corroboration*. Moreover this corroboration must confirm
not merely a material particular of the witness's story, but
some particular which connects the prisoner himself with the
1 Rex V. Harris, 5 B. and Aid. 92G. ^ 43 ^nd 40 Vict. c. fig.
8 4 and 5 Geo. V. c. S8, s. 28 (2). " Supra, p. 375.
6 Mr luderwick, K.C.; ia Side-Lights on the Stitnrtn.
6 Ret). V. Stuhbs, Deaisly 555 ; Reg. v. Boyes, 1 B. and S. 311 (K. S. C.
535). Rex v. Tate, L. 11. [1'JU8] 2 K. B. 630.
xxvij Accomplices 387
offence^ For, as the accomplice knows the whole history
of the crime, he may tell a true tale, capable of thorough
corroboration, and yet may easily insert in it the name of an
innocent man, in place of one of the actual offenders. Hence
it is not enough that an accomplice is corroborated as to the
position of the house into which the burglars broke, and as
to the number of its doors and windows. And if there are
two or more prisoners, and the accomplice's evidence is corro-
borated as regards one of them only, this will not suffice to
dispense with the warning as regards the others^.
Corroboration by another accomplice, or even by several
accomplices^ does not suffice; nor, usually, does corrobo-
ration by even the innocent wife of the accomplice^ But a
spy, since his complicity extends only to the actus reus and
not to the mens rea, is not truly an accomplice, and so does
not need con'oboration".
So soon as the prisoner raises any question as to a witness
being an accomplice, the jury may be at once called upon by
the judge to answer it', so that the prosecution may proceed,
if necessary, to tender evidence to corroborate him.
But these rules as to the necessity of corroborating
accomplices amount (as we have seen) only to a caution
1 Eex V. Wilkes, 7 C. and P. 272 (K. S. C. 541). Similarly in the
Divorce Court, where this sort of corroboration is always required for the
evidence of private detectives, if such a detective says, " I saw respondent
and co-respondent enter the hotel together, and I called this policeman's
attention to it," it is no sufficient corroboration for the policeman to say
merely, " He did shew me a man and a woman entering that hotel."
a Eeg. v. Jenkins, 1 Cox 177 ; Eex v. Wilkes, 7 C. and P. 272 (K. S. C. 541).
' Rex V. Ga7j, 2 Cr. Ap. R. 327. "A jury is no more bound to believe
two informers than one," said Whiteside, C. J.
4 8 Cr. App. R. 171 ; 7 C and P. 1G8 ; C. 0. C. S. P. ol. 173.
6 Bex V. Bicklcy, 2 Cr. Ap. R. 53 ; Reg. v. MulUns, 7 St. Tr. (N. S.) 1111.
Yet see the dicta of Whiteside, C. J., and Keogh, J., in Charauey's Irish State
Trials of 1867, as to the peculiar untrustworthiness of a man who has thus
taken up falsehood as his trade.
« See C. C. C. Sess. Pap. cxi. 169 ; cxxxiv. 728.
25—2
388 J^y^^W -Declarations [ch.
and not to a command. Accordingly even in capital cases
verdicts of conviction, based solely on the uncorroborated
evidence of an accomplice, have upon appeal been held good^
And, even as a matter of mere caution, the urgency of the
advice may vary according to the consistency of the witness's
story, the extent of his complicity, and the heinousness of
the crime. Thus the caution will be withheld altogether in
cases where the charge implies so little moral guilt as not to
taint a man's credibility at all ; e.g., in the case of non-repair
of a highway-.
Rule II. To the doctrine which excludes Hearsay evi-
dence there are— besides the general exceptions which we
mentioned along with it^ — some further ones which are
peculiar to criminal cases. Two of these deserve careful
consideration.
(1) Upon an indictment for Homicide*, the dying decla-
rations of the slain man respecting the cause of his death
are admitted under certain circumstances. This exception
seems to have been fully recognised as early as 1697. At
the Old Bailey, in that year, whilst it was held, in one trial
for murder, that evidence could not be received as to the
murdered man having said that he and the prisoner were
going to fight a duel, yet in another, wlicre a painter in
Lincoln's Inn Fields was indicted for having killed two bailiffs,
their "dying words" were admitted as evidence against him".
Such declarations are admitted because the religious awe
inspired by the approach of death is deemed fully equal to
the sanction of any judicial oath*. Hence the rule has been
held to be inapplicable to declarations made by a child of the
1 Yet see Rex v. Cohen, 10 Cr. App. R. 91.
2 Rex V. Hargrave, 5 C. and P. 170 ; Reg. v. Boyes, 1 B. and S. -311
(K. S. C. 535). ' Supra, p. 367 et scq.
* Rex V. Mead, 2 B. and C. 605 (K. S. C. 519).
» Hargrave MSS. in British Museum, No. 146, p. 162.
8 Rex V. Woodcock, 1 Leach 502.
XX vi] Dejyositi'ons SSU
age of four^ And, similarly, it will not apply unless the
deceased thought his death quite imminent. It is not suffi-
cient that he was " in fear of death '^" or " thought he was
going to diel" He must have felt nothing short of "a settled
hopeless expectation of deaths" If, however, he had thus
abandoned all hope of recovery when he made the declaration,
the fact that his medical attendants were not equally hope-
less, or that he did actually survive for several days after
making it, will not render the declaration inadmissible". The
present tendency, however, is to reject dying declarations
except in the clearest cases, testing them with " scrupulous
and almost with superstitious careV
It should be carefully remembered that the rule is
limited, not merely to trials for crime, but to trials for
Homicide; and thus will not apply when the person who
caused the death is under trial, not for it, but only for some
earlier crime (perhaps an abortion or a violent robbery) of
which the death was a results
(2) When a witness (whether for the prosecution* or the
defence^) has made a deposition before the justice who sent
the case for trial, it may be used at the trial, instead of
calling the witness himself, if he has died in the interval, or
has become insane'", or is too ill to travel, or is being kept
out of the v/ay by the prisoner". But it is important to
1 Rex V. Pike, 3 C. and P. 598 ; Reg. v. Jenkins, L. R. 1 C. C. R. 187
(K. S. C. 515).
8 C. C. C. Sess. Pap. cxxvi. 841.
3 Reg. V. Neill, G. C. C. Sess. Pap. cxvi. 1417 (K. S. C. 483).
* Reg. V. Peele, 2 F. and F. 21 ; Reg. v. Gloster, C. C. C. Sess. Pap.
cviii. 647 (K. S. C. 518).
» Rex V. Mosley, 1 Moody 97; Rex v. Perry, L. R. [1909] 2 K. B. 097.
« Per Byles, J., in Reg. v. Jenkins, L. R. 1 C. C. R. 187 (K. S. C. 515) ;
of. Reg. V. Mitchell, 17 Cox 503.
7 Rex V. Lloyd, 4 C. and P. 233 ; Reg. v. Hind, BeU 253.
8 Indictable Offences Act, 1848 (11 and 12 Vict. c. 42, s. 17).
9 30 and 31 Vict. c. 35, s. 3. i" Reg. v. Marshall, C. and M. 147.
" Rex V. Harrison, 12 St. Tr. 833.
390 Evidence of Character [ch.
notice that if the witness has merely gone abroad, it cannot
be used; except in cases of misdemeanor, and even then
onl}^ by consent of the opposite party.
A deposition must bear the signatures of both the witness
and the committing magistrate, but it is not necessary to
call any evidence to prove their genuineness. If the witness
refuse or be physically unable to sign it would appear that
this signature may be dispensed with\ When a deposition
is put in as evidence, some person must be called, (very often
it will be a policeman whom the committing magistrate has
bound over to prosecute), who can prove that the prisoner
(i) was present when the witness gave the evidence which it
embodies, and (ii) had an opportunity of cross-examining
him^ Further testimony, too, will be necessary, for the pur-
pose of satisfying the judge that the absence of the witness
is due to one of the grave causes which we have mentioned ^
A witness's deposition will not be thus available as evi-
dence at a trial, unless the offence for which the prisoner is
being tried is (if not in technical definition, at any rate sub-
stantially), the same as that with which he was charged at
that preliminary hearing where the deposition was taken*.
Rule III. Evidence of the prisoner's good character is
always admissible on his behalf in criminal courts ; (though
in civil proceedings it would be excluded, as not sufficiently
relevant to the issue, and though evidence of his had
character is, as we have seen"*, not readily admitted even in
criminal tribunals).
But, ancient and well-established as is this rule^ opinion
has been considerably divided as to its exact scope. Is the
1 Rex V. HoUoway, 65 J. P. 712.
2 Rex V. Paine, 1 Salk. 281. * Reg. v. Stephetisoit, L. and C. 165.
•» Reg. V. Ledbetter, 3 C. and K. 108. * Supra, p. 353.
* So much so that the fact th;it iu some particular class of actions
•witnesses to the defendant's good character have always been excluded, may
be used as a proof that those actions are civil and not criminal proceedings ;
Att.-Gen. v. Radlof, 10 Q. B. at pp. 97, 108,
xxvi] Evidence of Character 391
"character," which the witnesses are thus allowed to describe,
the disposition or the reputation of the accused person ? In
Reg. V. Rowtoin} the Court for Crown Cases Reserved adopted,
though only by a majority, the latter alternative. Accord-
ingly, in strictness, no evidence ought to be given about the
prisoner's disposition, and still less about any particular acts
of his. The witness, therefore, to borrow Erskine's words'',
is not to say " what A, B, ox G told him about the man's
character, but what is the general opinion concerning him.
For character is the slow-spreading influence of opinion,
arising from a man's deportment in society, and extending
itself in one circle beyond another till it unites in one
general opinion. That general opinion is allowed to be
given in evidence."
But, as Lord Ellenborough long ago said, " No branch of
evidence is so little attended to^"; and this strict rule of law
is in practice constantly and humanely disregarded. For the
present conditions of busy life in crowded cities often render
it impossible for a man's conduct to have been under the
continuous observation of many persons for so long a time as
would enable any "general opinion" about it to grow up.
No neighbour or customer of his knows an}i;hing about him
except from personal experience. Yet thus to depart from
the strict rule, opens out an inconveniently wide field of
inquiry. For a witness's individual opinion of his neigh-
bour's disposition may have to be supported or tested by
protracted consideration of the innumerable facts which led
him to form it. But evidence of a man's general reputation
affords terse and summary proof of his disposition. On the
other hand this briefer and more technically correct mode of
proof has the disadvantage of excluding all evidence (such as
perhaps might have been obtained from the very same
witness who proves the good reputation) of a deep-rooted
1 L. and C. 520 (K. S. C. 528). ^ lu his speech in defence of Haidy.
8 Bex V. Jones, 31 St. Tr. 310.
392 Evidence of Character [ch.
evil disposition that rendered the man utterly unworthy of
the good reputation which he enjoyed.
Either method of proof, however, would admit that nega-
tive evidence which in practice is so frequent, "I never heard
anything against him." Such negative testimony may be
the best of all tributes to a man's disposition ; for most men
are little talked of until there is some fault to be found with
thera^
Evidence of good character is thus peculiar in its nature,
as being a case in which the witness speaks as to other
people's knowledge, instead of as to his own. And the
forensic procedure in regard to it is also peculiar. For the
opposite party has no right to make a speech in reply upon
it; nor ought he even to cross-examine upon it, unless he
knows that he can thereby elicit a definite charge against
the prisoner, e.g., his having committed other similar
offences ^ But evidence of good character even though
obtained only by cross-examination of the Crown witnesses,
may always be rebutted by evidence of his bad reputation ;
though not by evidence of bad disposition, still less of parti-
cular bad acts, (except that it sometimes* may be rebutted by
evidence of previous convictions).
If a defendant does not exercise his privilege of calling
evidence of his good character, the prosecution ought not to
make any comment upon this omission.
The probative value of evidence to character must not be
overrated. It should never be considered sufficient ground
for disbelieving clear evidence of facts, for, if it were, no con-
viction could ever take place ; since as Lord Ellenborough
says, " Every criminal had a good character until he lost it."
But it may be of great importance in determining which of
^ Cf. the remarks of Cockburn, C.J., in Reg. v. liuictoit, L. aud C. 53G
(K, S. C. 53H). - Rex v. Hodgkigs, 7 C. and P. 298.
3 Under tlie following statutes : — 7 and 8 Geo. IV. c. 28, s. 11 ; 6 and 7
Wm. IV. c. Ill ; 24 and 25 Vict. c. 96, s. 116 ; 24 and 25 Vict. c. 99, s. 37.
xxvi] Evicleyice of Character 393
two inferences should be drawn from a fact; and conse-
quently in all questions of mens rea, since they must always
be matters of mere inference. It will thus be very useful in
cases where a man is found in possession of recently stolen
goods\ At a charity-bazaar at Lincoln, years ago, when an
alarm was raised that a purse had been stolen, the thief slipped
it into the coat-pocket of a bishop who was present; but
any suspicions that might have been aroused by its being
found in this pocket were effectually rebutted by the episco-
pal character of the wearer. Yet, even for such purposes,
evidence of good character is, by a curious paradox, of least
avail where it is most needed, namely in offences of great
heinousnoss. For " in any case of atrocious criminality the
act is so much out of the ordinary course of things, that, if
perpetrated, it must have been produced by motives not
frequently operating on the human mind. Therefore e\i-
dence as to the character of a man's habitual conduct in
common circumstances will here become far inferior in efficacy
to what it is in the case of accusations of a slighter guilt '\"
After conviction, however, evidence of character will always
be of great importance in determining what punishment
should be inflicted on an offender.
Rule IV. In criminal proceedings Admissions, made by
(or on behalf of) a party to the litigation, are received in
evidence less readily than in civil cases.
In civil tribunals, any admissions which have been made
by the plaintiff, or the defendant, or the duly authorised
agent of either, can be given in evidence quite freely. But
in criminal cases, the admissions of the prosecutor cannot, as
such, be given in evidence; for, technically speaking, he is
no party at all to the proceedings, they being brought in the
name of the Crown itself. And even the admissions (or —
1 Supra, p. 329.
* Per Shaw, C.J., at the trial of Prof. Webster ; supra, pp. 139, 339.
394 Confessions [ch.
to use the term more commonly applied to admissions of
criminal guilt — the Confessions') made by the person accused
are not allowed to be given in evidence unless it appears
that they were quite voluntary. (Whether or not they were
so is a question for the judge, not the jury, to decide'.) It
would seem that, even though there be no circumstances to
raise any doubt as to the character of the confession, it is the
duty of the prosecutor to bring evidence of its having been
given voluntarily*.
For though a litigant's own admissions may well appear
at first sight to be the most satisfactory of all forms of
evidence — and indeed were so regarded in the civil and the-
ca^oiL- law* — experience has now shewn them to be open,
especially in serious criminal charges, to two serious hazards
of error'. For (i) eagerness to secure the punishment of
a hateful offence may lead a witness to exaggerate, even
unconsciously, what was said to him by the person accused ;
and (ii) eagerness to propitiate those who can obtain mercy
for him may lead the accused person himself to make untrue
admissions*. Hence for some two centuries past English
1 Supra, p. 367. "^ Reg- v. Warringham, 2 Deu. at p. 448.
» Reg. V. Rose, 68 L. J. B., Q. B. 289.
* Even so recent a civilian as Lord Stowell said: — "A confession
generally ranks highest in the scale of evidence ;...it is taken as indubitable
truth, ...a demonstration, unless indirect motives can be assigned to it";
2 Hag. Con. 316. But now the Divorce Court will not act upon an un-
corroborated confession except "with the utmost circumspection and
caution " (see Williams v. Williams, L. R. 1 P. and D. 29).
" Hence in very grave cases English judges frequently urge a prisoner
who pleads guilty to withdraw that plea. Indeed in New York the Code of
Criminal Procedure forbids any conviction upon a plea of Guilty where the
crime charged is punishable by death or by penal servitude for life (s. 332).
Hence when Czolgosz, on his trial in 1901 for the murder of President
McKinley, pleaded " Guilty," a plea of " Not Guilty " was nevertheless entered.
« The (now) indubitable falsity of the confessions made by many persona
who suiiered death for witchcraft, has done much to bring about this chauge
in the legal estimate of the probative value of such evidence. Mr Inderwick,
K.O. {Side-LighU on the Stuarts) cites two instances of women who thus
xxvi] Coyifessions 395
criminal lawyers have recognised that " hasty confessions are
the weakest and most suspicious of all evidence'."
The rule as to what confessions are to be regarded
as sufficiently voluntary may be stated thus: — a confession
must be excluded if it was made (i) in consequence of (ii) any
inducement (iii) that was of a temporal character and
(iv) connected with this accusation, and (v) that was held out
to the prisoner by a person who had some authority over the
accusation. The various clauses of this definition deserve to
be considered in detail.
(i) In consequence of. The confession will only be inad-
missible if it was due to the inducement. Where therefore
the inducement seems clearly to have been deprived of all
influence, whether by lapse of time or by some intervening
warning {e.g., a magistrate's statutory caution), the confession
will standi But it is never necessary that the prisoner
should have been pressed to make an actual confession of
guilt; it is sufficient if he were pressed to say anything
whatever ^ Thus, " It might be better for you to tell the
truth and not a lie*," will suffice to exclude a confession;
although " Speak the truth if you speak at all" is harmless.
(ii) An inducement. It is immaterial whether the
inducement consisted in a threat of evil or in a promise of
good*. Thus the admonitions, " Tell the truth, or I'll send
confessed, although they declared privately that their confessions were
false; their motive being an actual desire to be put to death, in order to
escape the obloquy under which they lived ; p. 16-i.
1 Sir Michael Foster's Crown Law, p. 234. Yet in French law, great
importance is still attached to them. Thus on the prosecution of the Abb6
Auriol, in 1881, for the murder of two of his parishioners, when the questions
of the examining magistrate failed to elicit from him any incriminating
admission, the Abb6 was shut up in complete isolation for thirty-seven days.
On the thirty-seventh he at last made a full confession. He afterwards
(though untruly) retracted it. See Mr H. B. Irving's Studies o, French
Criminals. ^ Rex v. Clcwes, 4 C. and P. 221.
3 Reg. V. Warringham, 2 Den. 447. * iwg. v. Bate, 11 Cox 686.
B Eeg. v. Jarcis, L. R. 1 C. C. R. 90 (K. S. C. 525).
396 Confessions fcH.
for the police S" and, "Tell the truth and it will be better for
youV' are equally objectionable ; and either inducement will
be fatal to the admissibility of any confession which it may
elicit. At one time the courts exercised a somewhat per-
verse (if humane) ingenuity in so construing colourless words
as to detect in them some phrase which an accused person
might have imagined to imply a hint of some inducement*.
But throughout the last half century it has been held* that
the words of any alleged inducement must be construed only
in their natural and obvious meaning.
(iii) Temporal. An inducement will not exclude con-
fessions produced by it, unless it Avere of a temporal character.
To urge that it is a moral or religious duty to speak out, is
not likely to cause a man to say what is untrue ; and there-
fore will not affect the admissibility of what he says. Hence
where a prisoner had been urged by the prosecutor to tell
the truth " so that if you have committed a fault, you may
not add to it by stating what is untrue*" — and similarly
where the mother of one of two boys said to them, " You had
better, as good hoys, tell the truth ^" — the confessions which
ensued were received as legal evidence.
(iv) Connected with the accusation. If the inducement
had no bearing upon the legal proceedings connected with
the accusation, it will not exclude the confession. Thus a
confession was admitted in spite of its having been obtained
by the promise, " If you will tell where the property is, you
> Rex V. Richards, 5 C. and P. 318. ^ 2 East P. C. 659.
^ See, for instance, Reg. v. Drew, 8 C. and P. 140; Reg. v. Morton,
2 M. and R. 614.
* Reg. V. Baldry, 2 Den. 430.
» Reg. V. Jarvis, L. R. 1 C. C. R. 96 (K. S. 0. 525).
6 Reg. V. Reeve. L.R. 1 C. C. R. 362. Similarly the exhortation— " With
the profession you make of being a Christian, it is only right for you to
clear the innocent ones," has been held not to exclude the consequent
confession ; {Reg. v. Feterif C. G. 0. Sess. Pap. cxxvii. 209, coram
Channell, J.). Cf. Rex v. StantoH. Cr. App. R. 198.
xxvi] Confessmis 397
shall see your wife'." And if even an objectionable induce-
ment to confess one crime should produce also a confession
of some second and unsuspected offence, such confession will
be admissible upon a trial that is only for the latter crime.
(v) By a person in authority. A person in authority
means one who had some opportunity of influencing the course
of the prosecution ■■' ; e.g., a magistrate or a constable ^ or even
a private person if he is prosecuting or is likely to prosecute.
Thus if an accusation be made against a servant, and she
make a confession to her master or mistress in consequence
of some inducement held out by him or her, it would be
excluded if the charge were one of stealing their property ;
whilst if it were a charge of killing her own child, they would
have no such "authority" in the matter as to give any
disabling effect to the inducement*. It is sufficient if the
person in authority is present, silently acquiescing, when
some third party spontaneously holds out the inducement*.
The mere fact that it was to a constable (or other person
in official authority) that a confession was made, will not
cause it to be rejected, when no inducement was held out.
And this will be so even if no preliminary warning had been
given to the prisoner who made it; and even though he
made it in answer to questions put to him by this person in
authority. " To innocent people it is a most valuable safe-
guard to have an opportunity of knowing and answering the
charged" But questions thus asked are viewed jealously by
1 Rex V. Lloyd, 6 C. and P. G93 (K. S. C. 527). There is indeed a case
in which the inducement, " Tell and you shall have some gin," was held to
exclude the confession, but it is a decision of very little authority ; see
3 liussell on Crimes 482.
2 Rex V. Gibbons, 1 C. and P. 97 (K. S. C. 524).
' A person who has the prisoner in his or her custody, though not
a constable, is "in authority," e.y., a "searcher" of female prisoners.
Reg. V. Windsor, 4 F. and F. 361. * Reg. v. Moore, 2 Den. 522.
* Reg. V. Taylor, 8 C. and P. 733.
s Per Lord Russell, C.J.. in Rogers v. Uawken, G2 J. P. 27U.
398 Admissions by Agents [ch.
the judges; and so soon as a constable has arrested or charged
(or even made up his mind to charge) a prisoner, it is desirable
if not essential, that he sLould give him a caution before asking
any question^
Even, however, when English law thus regards a confession
as being rendered inadmissible by some inducement, it does
not exclude evidence of any acts that may have been per-
formed along with, or in consequence of the giving of the
confession; e.g., the surrender, or the discovery, of stolen
property ^ Moreover it does not exclude confessions them-
selves when not obtained by an inducement, even though
they may have been obtained by some underhand means;
e.g., by intoxicating the prisoner', or by abusing his confidence
(as by a gaoler appropriating a letter which he had promised
the prisoner to put into the post*), or by artifice (as by
falsely asserting that some of the prisoner's accomplices are
already in custody''). In such cases, however, the judge will
doubtless warn the jury not to attach to the confession too
much weight.
A further difference between civil and criminal courts, in
their treatment of admissions, concerns such admissions as
are made by mere agents. In.iiivil proceedings, wherever the '
tacts of an agent will bind the pimcipal his admissions will
also bind him, if made in the same afi"air and at the same
time, so as to constitute a part of the transaction*. But
' And even before charging, the questioning must not be oppressive or
hostile. But this topic of questions put by constables, frequently though it
arises in practice, is one on which there is still uncertainty ; see Lewis v.
Harris, 24 Cox G6 ; Rex v. Bet^t, 2 Cr. App. K. 30, 315 ; licv v. Booth,
5 Cr. App. E. 177. If the constable do not Rive a caution, the admission
may perhaps be rendered useless ; and yet, if he do give one, perhaps no
admission will be uttered.
2 Ee.x V. Jenkins, E. and R. 492. » Hex v. Spilshurij, 7 C. and P. 187.
* Ee.x V. Derringtoii, 2 C. and P. 418.
6 Bex V. Bitrley, 1 Phil. Ev. (7th ed.), 111.
6 See Story on Agency, sects. 134, 451. Thus, in an action against
a railway company by a passenger for the loss of his luggage, the admissions
xxvi] Competency of witnesses 399
criminal law does not adopt this wide rule^; it never holds
a principal liable for admissions made by his agent except
when he has authorised them expressly. Accordingly an
admission made by a prisoner will not be evidence against
his accomplices in the crime, unless it had been expressly
authorised by them^ Yet, as we have seen, so soon as a
common criminal purpose has been shewn, evidence of the
acts of one accomplice, though done in the absence of the
others, will be admissible against all of them'.
Rule V. The principles relating to the Competency of
witnesses are not identical in civil and in criminal courts.
We have already sufficiently mentioned* the rare and
exceptional cases in which recent statutes have permitted
evidence to be given in criminal proceedings by children
who do not understand the nature of an oath, if they be
sufficiently intelligent and be aware of the duty of speaking
the truth. A much more general and more important pecu-
liarity in the criminal rules of evidence is that by which
(A) accused persons, and (B) the wives or husbands of accused
persons, are entitled to refuse to give evidence ; (and indeed,
until very recently, were entirely incompetent to give it).
(A) The common law disqualified every person who had
an interest in the result of any legal proceeding — whether
civil or criminal — from giving evidence in it. Hence, of
course, the actual parties to that proceeding, since they had
the strongest interest of all, were disqualified ; plaintiffs and
of the station-master as to the way in which the loss took place, made by
him the next day after the loss, in answer to inquiries for the luggage, are
good evidence against the company. Morse v. C. E. Railroad, 6 Gray 450.
1 Reg. V. Downer, 14 Cox 480.
* 1 Hale 585 ; Reg. v. Swinnerton, C. and M. 593. So, in the Divorce
Court, a respondent's confession is no evidence against her co-respondent ;
and an incriminating letter written by her to him, but lost in the post, will
be no evidence against him, (though it would be, had he received and
preserved it, vide supra, p. 370).
* Supra, p. 292. * Supra, p. 375.
400 Prisoners as ivitnesses [ch.
defendants in civil cases, and prisoners in criminal ones.
(But the prosecutor in a criminal case could give evidence;
for technically he is no party to the proceedings, the Crown
being the dominus litis.) Prisoners, however, until early in
the eighteenth century, were usually questioned (though not
upon oath) by the judge himself, at the conclusion of the
Crown evidence, in order to elicit their defences ^ And, this
often was of great assistance to them ; especially as no felon
could then be defended by counsel. On the other hand, it
gave wide scope for judicial cruelty, as was too often she^vn
by Lord Jeffreys and other judges in the Stuart period*.
In civil cases the evidence of the parties was rendered
admissible in 1851 ^ Subsequently in 1872 there began
a series of legislative enactments which enabled prisoners
to give evidence in the case of a few particular crimes.
The judicial experience of the working of these exceptional
privileges proved so favourable that ultimately a general
enactment was passed* — the Criminal Evidence Act, 1898.
Byit:—
1. The person charged is made a competent (but not
compellable) witness for the defence at every stage of the
proceedings"; whether he be charged solely, or jointly with
1 See instances in the first volume of State Trials, passim ; and
Harrison's Case in 1692, 12 St. Tr. 159.
2 And by Page, J., even so late as 1741. See in Tom Jones, bk. viii.
ch. XI., Fielding's vivid picture of Page's satirical questioning of a prisoner
until "everybody fell a-laughing. It is indeed charming sport to hear
trials upon life and death 1 But I own I thought it hard that there should
be so many of them — my lord and the jury and the counsellors and the
witnesses — all upon one poor man, and he too in chains. He was hanged ;
as, to be sure, it could be no otherwise."
3 Lord Brougham's Act ; 14 and 15 Vict. c. 99.
■* 61 and 62 Vict. c. 30. It does not extend to Ireland ; s. 7 (1).
'' This does not however include proceedings before the Grand Jury, for
they have nothing to do with the defence ; Reg. v. Rhodes, L. 11. [1899]
1 Q. B. 77. Nor can a prisoner, after pleading guilty or being convicted,
give evidence on oath in mitigation of punishment, as there is then no
xxvi] Prisoner as loitness 401
some other person. His evidence is to be given from the
box and not from the dock^
2. (a) On committal for trial, he gives his evidence
immediately after the magistrate has delivered the usual
statutory caution as to the ultimate use that may be made
against him of anything he may say.
(6) At trial, he gives it immediately after the Crown
witnesses ; unless he is going to call some witness of his own
(other than a mere Avitness to character). When he thus
does not call a witness, the fact of his having himself given
evidence creates no right of reply ; so that, if he be unde-
fended by counsel the Crown counsel will have no oppor-
tunity at all of commenting upon the evidence he gives.
3. He must not be cross-examined to credit'^; except
(a) as regards some offence which is such that evidence
of its commission would intrinsically be admissible evidence
for the prosecution {e.g., as bearing upon the question of mens
red) in the present proceedings* ;
or (yS) when he has put in evidence of his good character;
or (7) when his defence is such as to assail the character
of the prosecutor, or of the prosecutor's witnesses*;
or (S) when he has given evidence against a co-defendant^
" issue " ; he can only, as at common law, make an unsworn statement.
Reg. V. HodgkinsoH (64 J. P. 808).
1 s. 1 (;■). 2 8_ 1 (y)^ See p. 402, note 3.
^ Thus a conviction against a schoolmaster, for an assault upon
a scholar, was quashed because the defendant had been asked whether he
had been previously convicted of a similar assault on another scholar ;
Chamock v. Merchant, L. K. [1900] 1 Q. B. 474. Had the previous assault
been on the same scholar, the evidence would probably have been admissible.
* But not by merely raising the defence, in rape, of prosecutrix's Con-
sent; Rex V. Sheean, 21 Cox 561. Study Rex v. Hudson, 7 Cr. App. E. 256 ;
of. 8 Cr. App. B. 249 ; the principle is still vague.
5 He is liable to be cross-examined by, or by counsel for, any person
tried along with him whom he has prejudiced by his evidence. But if
questions be put to him for a co-prisoner whom his evidence has not
K. 26
402 Prisoner as imtness [ch.
4. The prosecutor must not comment on the fact of a
prisoner's having refused to give evidenced But the court is
not placed (as in the United States it is) under any such
restriction*. Experience, however, seems to shew that juries,
without the help of any comment, readily draw for them-
selves a hostile inference from the prisoner's refusal*.
Experience seems already to have shewn that this statute,
though so great a departure from what had been a funda-
mental principle in English criminal procedure, has worked
admirably*. We may add that there is also in force another
statute which departs even further from the ancient prin-
ciples; viz. the Evidence Act, 1877*. Under this, whenever
criminal proceedings are taken merely to test or to enforce
some civil right, the party charged is not only competent
but even compellable to give evidence, and either for the
defence or even for the prosecution.
The prisoner had at common law a right (at any rate
when undefended by counsel^) to make a statement in his
own defence without being sworn. And the Criminal Evi-
dence Act, 1898, expressly provides' that " nothing in this
Act shall effect any right of the person charged to make a
statement without being sworn." This proviso seems in-
tended to operate even in the case of a prisoner who does
give evidence on oath ; enabling him (at any rate if unde-
fended) to add to it an argumentative unsworn statement.
prejudiced, this will give the Crown a right to a speech in reply as against
that prisoner {Reg. v. Paget, 64 J. P. 281).
1 s. 1 (6). "^ Reg. v. Rhodes, L. R. [1899] 1 Q. B. 77.
•* The restrictions (for instance, as to cross-examination to credit)
imposed hy the Act extend even to those trials at which, by special statutes,
the prisoner had already been rendered a competent witness. 19 Cox 443.
* See the testimony of no less competent a critic than Sir H. B. Poland,
in A Century of Law Reform, ed. 1901, p. 54. * 40 and 41 Vict. c. 14.
* And probably even when defended ; Reg. v. Shimmin, 15 Cox 122,
R^x V. Pope, {The Times, July 8, 1902), Rex v. Bernay, {The Times, June 3,
1907). ' 8. 1 {h).
xxvi] Prisoner's wife 403
If any persons who took part with the prisoner in his
crime should be indicted along with him for it, they would
nevertheless, even at common law, be competent (and
indeed compellable) to give evidence, either for him or for
the prosecution, unless they were put up for actual trial
along with him^ Accordingly, a prisoner who desired to
call any co-prisoners as Avitnesses, would request a separate
trial'; if he obtained it, he then could call them although
their own trial had not yet taken place. Sometimes the
Crown calls one of a group of prisoners, as "King's evidence";
but in that case it often secures him a formal verdict of
acquittal before calling him, as this greatly enhances the effect
of his evidence.
Even since the Act which rendered accused persons
competent to give evidence, a prisoner will still sometimes
apply thus to be tried apart from those indicted along Avith
him. For some fellow-prisoner whom he wishes to give
evid e nce on his behalf, may-;:£erhaps from the dread of
cross-examination — be unwilling (although now competent)
to_^do so^ Or the applicant may desire this separate trial in
order to avoid the danger of the jury's taking into account
against himself some evidence which, legally, is only ad-
missible against some fellow-prisoner.
(B) The common law imposed an incompetency to give
evidence, not only upon the person under accusation, but
also upon that person's wife or husband*. Thus, if several
1 Reg. V. Bradlaugh, 15 Cox 217.
2 In cases of felony or treason, prisoners can even compel a separate trial,
by " severing" in their peremptory challenges (infra. Book rv.).
' Even though A may have been one of the witnesses who were bound
over, by the magistrate who committed B, to give evidence for B's defence,
he cannot be compelled to give such evidence if he be himself indicted and
tried along with B.
* Yet no other relationship, not even that of parent and child, was
regarded as producing sufficient community of interest with a prisoner to
create any incompetency. In two consecutive trials at the Central Criminal
26—2
404 Prisoner's wife [ch.
prisoners were tried together, not only all of them but also
all their spouses were thus disqualified from giving evidence ;
(even though each one of them was charged in an entirely
separate count). The rule produced strange results. Serjeant
Ballantine mentions, in his Reminiscences, having once prose-
cuted a man who obtained an acquittal by calling his mistress
to prove an alibi, viz. his having been away at the races with
her. Had he, instead, taken his wife, she could not have
thus given evidence for him. On the other hand, Rush (the
Norfolk murderer of 1848) was hanged on the testimony of
his mistress. He had promised to marry her; and, had he
kept his word, it would have saved his life.
An exceptional competency was, however, almost of
necessity, conceded in those cases where the crime consisted
in some act of personal violence committed by the prisoner
upon the wife or husband. And, in recent years, a few
statutes created further exceptions in the case of those
crimes in which prisoners themselves were being rendered
competent. But the whole doctrine has now been thrown
into a new form by the Criminal Evidence Act, 1898'. The
changes thus effected may be summarised as follows.
(I) In all ordinary criminal cases : —
1. The husband or wife of the party charged is now
competent to give evidence, but only for the defence, and
only on the application of the party charged*; (and apparently
is not compellable to give evidence).
2. But this husband or wife has the full liability of an
ordinary witness to be cross-examined as to credit ; not merely
the (very limited) liability of a prisoner who becomes a witness
under this Act*.
Court in 1889, I heard the one prisoner convicted on the evidence of his
brother, and the other on that of his sister.
1 61 and 62 Vict. c. 36. " a. i (a).
' Supra, p. 401.
XX vi] Prisoner's loife 405
3. A prisoner's omission to call the husband or wife is
not to be commented upon by the prosecution'.
4. To call the husband or wife has the same effect as
calling any ordinary witness for the defence, in giving the
Crown the right of reply.
(II) Moreover in the following exceptional cases, the
husband or wife of the party charged is a competent witness
for either the defence or even the prosecution, and quite
irrespectively of the consent of the party charged^
1. Cases where the common law itself recognised an
exception to the general rule^; \'iz. upon charges of personal
violence committed against the husband or wife in question*.
This would cover an assault or an attempt to murder; but
not crimes that involve no actual violence, such as bigamy
or libel.
2. Cases where, under the Married Women's Property
Act, 1882', the husband or wife is taking criminal proceedings
for an offence committed against his or her property by the
prisoner.
3. Cases of the sexual offences dealt \vith by sections
48 — 55 of the Offences against the Person Act, 1861, or by
the Criminal Law Amendment Act, 1885 ; Incest*^ ; Bigamyl
4. Cases specified in Part ii. of the Children Act, 1908^
e.g. offences involving bodily injury to a person under sixteen ;
or in the Prevention of Cruelty to Children Act, 1904.
5. Cases of persons charged under the Vagrancy Act®
with neglecting to maintain (or with deserting) their families ;
or with being souteneurs.
6. Cases where criminal proceedings are taken to test
or to enforce a civil right ^".
^ s. 1 (&). 2 s. 4. 3 ^upra, p. 404. * s. 4(1).
6 45 and 46 Vict. c. 7-5, ss. 12, 16. Supra, p. 18i.
6 8 Edw. VII. c. 45. " 4 and 5 Geo. V. c. 58, s. 28 (3).
8 8 Edw. VII. c. 67, s. 27. » 5 Geo. IV. c. 83. Su^ra, pp. 321, 322.
1° Evidence Act, 1877, s. G (1); su^ra, p. 402.
406 Stamps [gh.
Even before the Act of 1898 the husband or wife was
already compellable to give evidence in nos. 2 and 6 ; and,
according to the prevailing opinion, in no. 1 also. But con-
siderable uncertainty existed, and consequently much diver-
gence arose in practice, as to whether that Act should be
construed as authorising compulsion in nos. 3, 4, and 5. It
was at last unanimously decided, in 1912, by the House of
Lords {Rex v. Leach, L. R. [1912] A. C. 305), reversing the
judgment of the Court of Criminal Appeal, that in those
latter three cases the husband or wife, though a competent
witness, is not a compellable one.
Rule VI. Documents which require to be stamped are
treated differently in civil and in criminal courts.
For purposes of revenue an artificial restriction upon the
admissibility of documents as evidence has been created by
the imposition of Stamp Duties upon certain classes of them.
Familiar instances are the penny stamp upon receipts for the
amount of £2 or over ; the sixpenny stamp upon a written
agreement whose subject is of the value of £5 ; and the
ad valorem stamp of lOs. per £100 on conveyances, and of
2s. Qd. per £100 on mortgages and bonds. Under the earlier
Stamp Acts, a document that ought to bear a stamp, and
yet bore none, was incapable of being used as evidence in
any court whatever, whether civil or criminal. Tl\us on
the trial of a man for having burned down his shop, with
intent to defraud the Insurance Company of the sum for
which he had insured it, it was held that the absence of any
stamp on the policy of insurance rendered it inadmissible in
evidence, even though it was tendered for the mere purpose
of proving the particular intent alleged in the indictment*.
Hence such duties formed a conspicuous example of taxes
on Litigation ; which Benthara condemned as " the worst of
all taxes, being denials of justice, co-operating with every
injury and with every crime, and directly violating that first
» Rex V. Gilson, 2 Leach 100? ; R. and li. 138.
xxvi] Witnesses abroad 407
of statutes, Magna Charta — 'Justice shall be sold to no
man^'" But the severity of their operation was greatly
mitigated in 1854, when an enactment (now superseded
by the Stamp Act, 1891^) established with respect to them
an important difference between civil and criminal courts.
For whilst in civil proceedings unstamped documents are
still incapable of being given in evidence, without at least
the payment of penalties', the absence of a stamp no longer
prevents any document from being given in evidence in
criminal proceedings.
Rule VII. The testimony of witnesses who are abroad
can be made available much more easily in civil than in
criminal courts.
The fundamental principle which, as we have seen, excludes
hearsay evidence rendered it impossible for such persons to
give their testimony by merely sending letters or affidavits,
without coming to England to appear in court in person.
Even an official telegram from the Madras Government in
answer to an inquiry addressed to it by the India Office
cannot be given in evidence*. But in civil courts this diffi-
culty has now been overcome by making a general provision
for taking the evidence of such witnesses upon oath, with
full formalities, in the foreign country where they reside';
by granting a commission or appointing a special examiner.
But in criminal courts no such general rule prevails®. In
some exceptional instances, however, statutes have sanctioned
the taking of evidence abroad for use in criminal cases.
1 Works, IV. 582. 2 54 and 55 Vict. c. 39, s. 14 (4).
8 And some instruments [e.g., bills of exchange and bills of lading) can
only be stamped at the time of execution ; so that, if not stamped then, they
cannot be rendered admissible as evidence even by payment of penalty.
* Eeg. V. O'Flyim, C. C. C. Sess. Pap. cxx. at p. 916.
* Rules Oj the Supreme Court, Order xxxvn. rule 5.
* Accordingly in the Tichborne proceedings, the witnesses from Chili,
whose evidence had been taken in that country for the civil action, had to
come to England to give evidence in person at the criminal trial.
408 Witnesses abroad [cii. xxvi
The most important of these provisions is one, contained in
the Merchant Shipping Act, 1894^ which provides for all
cases in which an accused person is himself in the foreign
country where the witness is; (as may well happen if the
crime be committed at sea, or abroad). For it permits
any deposition on oath made outside the United Kingdom
before a proper official — a magistrate if in a British possession,
or a British consular officer if in a foreign country — i7i the
presence of the accused to be given in evidence in any
criminal proceedings here to whose subject-matter it relates,
if, at the time of using it, the witness is not in the United
Kingdom I
1 57 and 58 Vict. c. 60, s. 691.
- The other statutes are of a less general character. By 13 Geo. HI.
c. 63, on a prosecution in the King's Bench Division for an offence com-
mitted in India {infra, p. 421), the court may issue a mandamus to Indian
courts to take evidence publicly in court ; a provision which is extended by
6 and 7 Vict. c. 98, to any offence against the Slave Trade Acts committed
outside the United Kingdom, but within the Empire. In extradition pro-
ceedings, the Extradition Act, 1870 (33 and 34 Vict. o. 52) allows written
depositions taken abroad to bu given iu evidence.
BOOK IV.
CRIMINAL PROCEDURE.
CHAPTER XXVII.
LIMITATIONS ON CRIMINAL JURISDICTION.
We have now explained the Substantive law of crime ;
and also that portion of the Adjective law which regulates
the evidence by which crimes are to be proved. We have,
finally, to consider the remaining portion of adjective law;
that which regulates the procedure by which offenders
who have committed crime are brought to punishment.
We may begin by mentioning some limitations upon the
exercise of this procedure ; and then go on to describe the
various courts in which it is exercised.
Limitation by Toie.
To civil actions, lapse of time may often operate as a bar ;
Vigilantibus, non dormientibus, jura subveniunt. But it can
rarely affect a criminal prosecution. For the King could do no
wrongs ; and consequently it was impossible that his delay
in pressing his claims, whether civil or criminal, could be
due to any blameable negligence. Accordingly at common
law it was a rule that those claims remained unaffected by
lapse of time; nullum tempus occurrit regi^. And though,
1 Hu^ra, p. 77. ^ 2 Coke Inst. 273.
410 Limitations of Time [ch.
as regards ci\'il claims, this kingly privilege has now been
subjected to grave limitations by 9 Geo. II. c, 16, it still
operates almost unimpaired in criminal prosecutions. Hence
in several noteworthy cases, offenders have been brought to
justice many years after the commission of their crimes.
Thus the trial of Eugene Aram took place fourteen years,
that of Governor Wall^ nineteen years, that of Edward
Shippey* thirty years, and that of William Home' thirty-
five years after the respective murders for which they were
executed. Stephen*, indeed, mentions a prosecution in 1863
for the theft of a leaf from a parish register no less than
sixty years previously.
But this rule, that lapse of time is no bar to criminal
justice, is subject to a few statutory exceptions. Of these the
following are the chief*:
i. A prosecution for treason or misprision of treason
must be brought within three years from the commission of
the crime; unless the treason either consists of an actual
plot to assassinate the Sovereign, or was committed abroad".
ii. Offenders against the Riot Act' must be prosecuted
within one year.
iii. The misdemeanor of carnally knowing (or attempting
to know) a girl between the ages of thirteen and sixteen must
be prosecuted for within six months^
iv. And the innumerable offences which are punishable
on summary conviction must be prosecuted for within six
months®.
» 28 St. Tr. 51; mpra, p. 127. * 12 Cox 161 ; a.d. 1871.
8 Annual Register, ii. 368 ; Gentleman'a Magazine lor 1759, pp. 604, 627.
* Hist. Cr. Law, ii. 2.
* Others are mentioned in Stephen, Hist. Cr. Law, ii. 2.
*■ 7 and 8 Wm. III. c. 3, 88. 5, 6. Supra, p. 275.
» 1 Geo. I. St. 2, 0. 5 ; supra, p. 284.
e 48 and 49 Vict. c. 69, s. 5 (i) ; 4.Edw. YII. c. 15.
" 11 and 12 Vict. c. 43, s. 11. Exciptions are most rare.
xxvii] Extradition 411
Limitation by Territory.
According to International Law, a State ought only to
exercise jurisdiction over such persons and property as are
within its territory. And in criminal matters it cannot
always exercise jurisdiction over an offender even though he
actually be within its territory. For it is forbidden by
International Law to try foreigners for any offences which
they committed outside its territorial jurisdiction^ One
unique exception is, indeed, allowed. For persons guilty of
any act of " Piracy jure gentium'^" are treated as the common
enemies of all mankind, and any nation that can arrest
them may exercise jurisdiction over them, whatsoever their
nationality, and wheresoever their crime may have been
committed, even though it were within the territorial waters
of some other nation ^.
Hence the activity of a nation's criminal courts is usually
confined to those persons* who have committed offences on
its own soil' or on one of its own ships. Accordingly, persons
who come into a State's territory, after having committed
a crime elsewhere, usually incur no risk of being punished
by the courts of their new home for what they did in their
old one. In modem times, however, in order to counteract
this immunity, almost all civilised countries have concluded
Extradition treaties ; mutual arrangements whereby any
person who betakes himself abroad after he has perpetrated
a serious offence may be arrested, and then sent back to
1 Dr T. J. Lawrence's Principles of International Law, § 125, p. 219.
2 Supra, p. 315 ; Lawrence, § 122, p. 209.
» The Marianna Flora, 11 Wheaton at p. 41 ; In re Tivnan, 5 B. and S.
at p. 677. But this would not cover acts which, like trading in slaves, are
made piracy by local laws alone. For one country — or even several
countries — cannot add to International Law.
•* But it covers such persons even though they be aliens ; Courieen's Case,
Hobart 270 ; Ex parte Barronett, 1 E. and B. 1.
' As to " territorial waters," see 41 and 42 Vict. c. 73.
412 Fngitive Offenders Act [ch.
take his trial in the country where this offence was com-
mitted', if it were not a " political " crime.
Extradition transmits an offender from the territory of
one nation to that of another. But even within a nation's
own territory, if her constitution be a federated or quasi-
federated one, some similar provision may be necessary, in
order to transmit offenders from one of the component local
jurisdictions to another. Thus within the British Empire,
the Fugitive Offenders Act, 1881*, provides for a surrender,
akin to an extradition by a foreign nation, where a person
who had committed an offence in one part of the King's
dominions^ has fled to another part of them. The range
of crimes for which such a person may be thus surrendered
is naturally much wider than in the case of extradition to
a foreign country. It comprises all offences that are punish-
able (in the territory where they are committed) with not
less than twelve months' imprisonment with hard labour.
The statute moreover applies even though the conduct with
which the fugitive is charged would have constituted no
offence at all if committed in that part of the King's
dominions to which he has fled'.
International Law, although forbidding States to exercise
criminal jurisdiction over any foreigner for an offence com-
mitted by him outside their territorial jurisdiction, never-
theless leaves unlimited their power to punish their own
subjects. Yet nations vary in their readiness to exercise
* Lawrence, pp. 233 — 240; Hall's International Law, pp. 60, 206 — 9.
« 44 and 45 Vict. c. 69.
* In consequence of the annexation of the Transvaal, the question has
quickly been raised whether this Act applies only when the territory in
which the offence was committed formed part of the King's dominions at
the date of the offence, or will ap])ly even though the territory did not
become incorporated into those dominions until after the crime. Contra
dictory decisions on this point have been given already in South Africa.
* In 1011 we sent back 3 fugitives to the colonies and received 6 from
them; and extradited 26 foreigners, and obtained 3 persons by extradition.
xxvii] Grimes abroad 413
this power in respect of crimes which their subjects have
committed whilst away from their native soil. Great Britain
(like France and the United States) prefers, in nearly all
cases, to adhere to the principle that crimes are local matters,
to be dealt with where they are committed. But to this
general rule she has by modern statutes made a few ex-
ceptions; empowering her courts to exercise jurisdiction
over English subjects who commit certain specified offences
even upon foreign soiP.
Doubt has arisen as to whether, even when a man is
in England, he would commit any offence against English
law by conspiring to commit — or being accessory to the
commission of — a crime in some country abroad'^. For as
English courts have no official knowledge of foreign law they
cannot be sure that the act, however wicked, is actually
a crime by the law of the particular foreign country con-
cerned. (Hence if goods stolen abroad were brought to this
country by a man who had knowingly received them abroad,
though persons who knowingly received them from him
here could not be extradited for punishment abroad, as he
clearly could be, it nevertheless was doubtful whether they
^ This is the case with, as we have seen, homicide (24 and 25 Vict.
c. 100, s. 9, supra, p. 141) and bigamy (ibid. s. 57, supra, p. 302) ; and
piracy {supra, pp. 316, 411). So is it with treason and misprision of treason
(35 Hen. VIII. c. 2, s. 1) ; with offences committed by colonial governors
(11 Wm. III. c. 12; see Beg. v. Governor Eyre, L. R. 3 Q.B. 487); with
(supra, p. 318 n) un-neutral foreign enlistment (33 and 34 Vict. o. 90,
8. 4) ; offences against the Official Secrets Act, 1889 (5'2 and 53 Vict. c. 52,
s. 6) ; and with some offences against the Explosives Act, 1883 (46 and
47 Vict. c. 3). And by the Merchant Shipping Act, 1894 (57 and 58 Vict.
c. 60, s. 687), with any offence committed by British subjects who are, or
have within three months been, seamen on a British ship.
2 This doubt was debated with much political ardour in 1858 ; in con-
sequence of various persons having conspired in London to assist Orsini in
his project of assassinating Napoleon III. in Paris. Orsini's attempt was
made on January 14th, 1858, the Emperor escaping unhurt ; but ten of the
spectators being killed, and a hundred and fifty-six wounded.
414 Crimes abroad [ch. xxvii
could even be punished here\) The general principle still
remains unsettled, but particular cases have been dealt with
by statute. Conspiracy (or incitement) here to commit
a murder abroad has been made indictable*. And the
offence of dealing in this country with goods stolen abroad
has been dealt with by the Larceny Act, 1896'; which pro-
vides that it shall be an offence, punishable with seven years'
penal servitude, to receive, or to have* in possession, in this
country without lawful excuse, any property stolen outside
the United Kingdom, knoAving such property to have been
stolen. Property is to be deemed to be " stolen " whenever
it has been obtained under such circumstances that if the
act had been committed in the United Kingdom it would
have constituted an indictable offence, even though not
a larceny. The Act applies not only to cases of receiving
in Eno-land goods stolen abroad by other persons, but even to
cases where the thief himself is found in possession of the
goods in England*.
A person, although himself abroad, may by the hands
of an innocent agent commit a crime in England ; e.g., by
posting in France a libellous letter which the postman will
deliver for him in London. If the Frenchman come to
England, he may be tried here®.
1 Cf. C. C. C. Sess. Pap. lxxxiv. 295; lxxxviii. 638.
2 24 and 25 Vict. c. 100, s. 4 ; Reg. v. Most, L. R. 7 Q. B. D. 244.
3 59 and 60 Vict. c. 52.
* Thus covering cases in which not only the act of stealing, but even that
of receiving, took place abroad.
* Rex V. Graham, 65 J. P. 248.
« Rex V. De Marny, L. K. [1907J 1 K. B. 383.
CHAPTER XXVIII.
CRIMINAL COURTS.
We may now proceed to describe the various courts that
possess a general criminal jurisdiction; considering them in
the order of their dignity.
I. The High Court of the King in Parliament.
This is the highest court in the realm. Its title must not
mislead the student into supposing either that the King sits
there in person, or that the word "Parliament" is used in the
usual modem sense, as including the House of Commons^
But a Parliament, when deprived of the Sovereign and of the
Commons, becomes simply the House of Lords; by which,
accordingly, the jurisdiction of this court is exercised. That
jurisdiction is twofold: (A) as a Court of Appeal, and (B) as
a Court of First Instance.
(A) In civil matters the House of Lords is the only
final court of appeal on all questions of law from English
secular tribunals. But in criminal causes it is only one, and
far the less active, of two such courts. Until_J.907 its
funfitions^ of appeal were limited to those extremely rare
errors of law which are apparent on the record itself^ Such
an error would appear in any indictment that disclosed no
' Anson [Law and Custom of the Constitution, pt. i. p. 343) shews how
the Commons have ceased to share in the judicial functions of Parliament.
- Chitty says that the record contains {inter alia) the judge's commission,
the indictment by the Grand Jury, the arraignment, plea, issue, award of
jury, verdict, judgment; (Practical Treatise on Criminal Law , i. 720). But
it never shews the evidence, or the rulings of the judge as to admission or
rejection of evidence, or his statements in his summing up to the jury.
416 House of Lords [ch.
crime. But the Act of 1907' which created the new Court
of Criminal Appeal provides* that from it there may be an
appeal to the House of Lords on any point of law which the
Attorney-General certifies to be of such exceptional 'public
importance that it is desirable to have the highest decision
on it. A sitting of " Parliament " for legal appeals differs
very gravely from an ordinary sitting of the House of Lords.
For, by the Appellate Jurisdiction Act, 1876, there .muatJifi.
present at least three "Lords of Appeal^"; and, on the
otherhand, by a rule of constitutional etiquette which has
prevailed since O'GonnelVs Case in 1844)*, all peers who are
not lawyers abstain from giving a vote. Moreover, under
the Act of 1876, the Lords of Appeal may be allowed
by the House of Lords to hold these sittings after the
prorogation of Parliament; and the Crown may authorise
them to sit even after Parliament has been dissolved.
(B) The House of Lords is also a court of first instance.
In this capacity, unlike that already mentioned, it can try
questions of fact as well as of law ; and the modern rule of
etiquette excluding non-legal peers has therefore no appli-
cation here. But as the early Chancellors, being ecclesiastics,
could take no part in capital trials, it became the practice
for the Crown to appoint some peer (it will now probably
be the Lord Chancellor himself) as Lord High Steward, to
preside. Criminal cases may deserve to be tried before this
august tribunal, on account of the dignity of either (1) the
accused or (2) the accusers.
(1) Peers when accused of treason, or felony, or the mis-
prision of either, must be tried by their noble peers'. This
1 7 Edw. 7. c. 23. Infra, p. 490. » RiX v. Ball, L. I^ [1011] A. C. 47.
8 39 and 40 Vict. c. 59. These may be either Lords of Appeal " in
Ordinary " (i.e., salaried life peers appointed by virtue of the Appellate
Jurisdiction Act, 1876), or peers of the realm who have held high judicial
oiSce. ■• Knight's Popular History of England, viii. 520.
» Pollock and Maitland, i. 393. 1 Bl. Comm. 401.
XX VIII j House of Lords 417
privilege depends upon nobility of blood, not upon the right
to a seat in the House of Lords ; and accordingly is possessed
even by peeresses, infant peers, and non-representative Scotch
or Irish peers. The weight of authority is decidedly in
favour of the view that a peer cannot waive the privilege^;
(cumbrous and inconvenient though the form of procedure
is^ as was vividly shewn by the recent trial of Earl RusselP
for bigamy). All prosecutions of peers are, however, com-
menced in one of the ordinary courts, by an indictment found
by^ an ordinary grand jury; this indictment being sub-
sequently removed into the House of Lords (or into the
Lord High Steward's Court) by a writ of certiorari.
It appears that bis hops cannot be tri ed by the House
ofXiOrds^ No bishop has ever been so tried ; and Archbishop
Cranmer and Bishop Fisher were tried by ordinary juries*.
Bishops may however sit at the trial of a secular peer, until the
final moment when the lords come to the vote of " guilty," or
" not guilty ^" This disqualification for pronouncing judgment
doubtless arose from the rule of canon law which forbade clerks
to take part in any sentence of death ; though it also has
been explained by the questionable doctrine of "ennobled
blood*."
(2) Any person, whether peer or commoner, who is
impeached by the House of Commons must be tried by the
House of Lords. A peer may be thus impeached for any
1 See in Hansard, cccx. 245 (Jan. 31, 1887), the debate as to the
indictment of Lord Graves.
2 It will be found vividly described in Blackwood's Magazine, Dec. 1850,
in an account of the trial of Lord Cardigan in 1841, for firing at Capt.
Tuclistt in a duel; the latest instance before Earl Russell's Case.
3 L.E. [1901] A. C. 44G.
* Yet the Resolution of the House of Lords excluding bishops from trial
by the peers (Lords S.O., No. 61), depends upon the doctrine of "ennobled
blood " ; which Dr Stubbs regards as historically a mere absurdity.
^ Earl of Danby's Case, a.d. 1679, 13 Lords' Juuruals, 371.
^ Anson on the Constitution, l 226.
K. 27
418 House of Lords [ch.
crime ; and so may a commoner for, at any rate, any high
misdemeanor'. iJut as the House of Commons is itself now
able to exercise directly an effective political control over
the proceedings of the great officers of state, the cumbrous
procedure by impeachment has fallen into utter disuse. Its
inconveniences were vividly manifested in the proceedings
against Wan-en Hastings; which lasted from 1786 until
1795. Since Lord Melville's impeachment in 1805' there
has been no instance of it ; and none is likely to arise. For
impeachment, as Lord Macaulay says, " is a fine ceremony,
which may have been useful in the seventeenth century,
but not one from which much good can be expected nowV
11. The Court of the Lord High Steward of the United
Kingdovi.
This court differs in name, rather than in substance, from
the tribunal first mentioned. It sits for the purpose of trying
peers for treason, or felony, or misprision of either, when the
r ecess o r the dissoliition of Pailiaiaont makes it impossible to
h ave recourse to the House of Lords in its technical form.
The court consists of such temporal peers as the Lord High
Steward* may summon. But they must not be fewer than
' On the coutroversy whether a commoner can also be impeached for
felony and for treason, or may for these crimes insist on being tried by " his
peers" according to Magna Charta, the student is referred to the conflicting
precedents collected by Serjeant Stephen in his edition of Blackstone
(Bk. VI. ch. 14), and by Sir Erskine May {Parliamentary Practice, pp. 734,
Tbtj). The latter eminent authority considers impeachment applicable even
to these graver crimes ; in opposition to the conclusions of Blackstone (iv.
25G), and Lord Campbell {Lives of the Chancellors, iii. 358).
* 29 St. Tr. 549. It was described by a lawyer as " not an impeachment
of waste, but a waste of impeachment."
' Essay on Warren Hastings. For an account of the process of impeach-
ment, see Anson on the Constitution, i. .3(')-2.
•• At one time there was an hereditary Lord High Steward, but lor some
centuries past, the office has beeu giaulod only for the occasion of a particular
trial. As to the institution of his court, in the fifteenth century, see a recent
brilliant volume, His Grace the Steward, by Mr L. W. Vernon Harcourt.
xxviii] Court of Appeal 419
twenty-three; since the court decides by a majority, and
there cannot be a valid vote of guilty or not guilty unless
twelve concur in it. On trials for treason or misprision of
treason, it is provided by 7 Wm. III. c. 3 that all the peers
who have seats in the House of Lords must be summoned.
To this court, unlike the High Court of Parliament, no
bishop can even be summoned ; and hence there is no doubt
that a bishop cannot be tried by this court. Again, — though
in trials by the High Court of Parliament all the members
are equally judges of law as well as fact — in this court there
is a division of functions akin to that between a judge and
a jury. For the Lord High Steward is the sole judge on
questions of law, but cannot vote on facts ; and the facts
are determined by the rest of the court, (who are called
" the lords triors ").
III. The Court of Criminal Appe.al.
Except for those rare errors of law which are actually (m
technical phrase) " apparent on the record," the commou law
provided no court of appeal in criminal cases, although it
made abundant provision for civil appeals. Hence the
judges had recourse to the wise practice of holding informal
meetings to discuss questions of difficulty which had arisen
before any of them at criminal trials. By 11 and 12 Vict,
c. 78 these informal meetings were superseded by the es-
tablishment of a formal tribunal — the " Court for Crown
Cases Reserved " — with power to determine points of law
which arose upon the trial of any prisoner at either the Assizes
or the Quarter Sessions. By the Judicature Acts, this juris-
diction was transferred to the High Court of Justice, i.e. the
lower section of the Supreme Court of Judicature. Such
appeals could be made by the prisoner only, not by the
Crown. But he could not make them as of right; for he
could not compel the judge to reserve a point. And only
27—1'
420 High Court [ch.
questions of law could be reserved, never questions of fact.
The annual number of such appeals only averaged eight.
A more comprehensive principle has now been esta-
blished by the Criminal Appeal Act, 1907, which created
a general "Court of Criminal Appeal^" that can review
any question whether of law or of fact. This Court now
consists of the Lord Chief Justice of England along with
— originally only eight of, but now, by 8 Edw. VII. c. 46— all
of the judges of the King's Bench Division, It may sit in
several divisions; but a sitting requires a quorum of at least
three judges. To render impossible an equal balance of
opinion, it is enacted that the number of judges present
must always be an uneven one. And, further to secure
certainty in the law, only a single judgment — as in the
Judicial Committee — is usually to be delivered.
This Act of 1907 abolished (s. 20) a rare form of appeal —
not occurriiiof once in a decade — the Writ of Error. By this,
a decision of the King's Bench Division upon a point of law
that was "apparent on the record " of a criminal case might
be brought before His Majesty's Court of Appeal, {i.e. the
upper section of the Supreme Court of Judicature), though
that Court was debarred, by s. 47 of the Judicature Act,
from receiving any other form of appeal in criminal matters.
Thence the case might be carried up to the House of Lords,
(or, to express it more technically, to " Ilis Majesty the King
in his Court of Parliament").
Thus, since 1007, both His Majesty's Court of Appeal
and (in its collective form) the High Court of Justice have
reased to exercise any jurisdiction as courts of criminal law.
» For a full account of its working, see p. 490 infra.
2 But in the merely juasi-criminal offences of obstructing (or not re-
pairing) a highway or bridge or river, the Act of 1907 confers— s, 20 (3)— on
the convicted oScnder the same full rights of appeal as if he were a defendant
in a civil action at assizes; api'iuwall^' iucluiiuiii the right of resort to His
Majesty's Court of ApiJettl,
xxviii] King's Bench Division 421
IV. The King's Bench Division of the High Court of
Justice.
This tribunal exercises the criminal jurisdiction of the
ancient Curia Regis'^. Hence, though the Lord Chancellor
is the highest of the judicial functionaries of the realm, not
he but the Lord Chief Justice (who presides in this Division)
is the head of our criminal judicature. And from it alone is
it now usual to select the judges of assize ; to the exclusion
of their colleagues in the other Divisions of the High
Court.
Like the House of Lords, the King's Bench Division has
cognizance both of matters of first instance and of matters
of appeal
(A) As a court of first instance, the King's Bench Division
possesses (though in modern times it is scarcely once a year
that it exercises) an original jurisdiction in four classes of
offences. For it can try the following ones : —
(1) Any crime committed out of England by one of our
public officials in the execution of his office ^
(2) Any misdemeanor, in whatever part of England
committed, for which an " information^ " (dispensing with all
recourse to a grand jury) has been filed by some officer of the
Crown.
(3) Any indictable crime (whether a misdemeanor or
even a felony or treason) that has been committed in
Middlesex.
(4) Any indictable crime, in whatever part of England
committed, an indictment for which has been found in some
other court {e.g., at the Assizes) and has since been removed
by certiorari into the King's Bench Division for trial. The
1 Anson, Law and Custom of the Constitution, ch. x. sect. i. § 1.
^ For crimes by governors of colonies such ti'ial was authorised so far
back as 11 Wm. III. c. 12; and 42 Geo. III. c. 85 made it applicable to all
officials abroad. 8 Infra, p. 453.
422 King's Bench Division [ch.
object of such a removal may be either to secure a "trial at
bar," or to enable the case to be tried with some of the
incidents of civil procedure.
A trial at the bar of the King's Bench Division takes
place before three of its judges with (usually) a special jury^
From such a trial no appeal lay to the Court for Crown
Cases Reserved. But cases that have been removed into the
King's Bench Division for trial are usually tried not at bar
but before a single judge of that Division, either in London
(in which case if the charge be one of felony the trial usually
takes place at the Central Criminal Court), or else at some
circuit, but on its civil side (the King's Bench Division having
no power over the criminal side of an assize court). The
costliness of this procedure makes it impossible except in
the case of wealthy persons. The crimes for which it is
oftenest asked for are libel, assault, conspiracy, perjury, and
nuisance. In such proceedings, unlike ordinary criminal
ones, a special jury may, if the charge is one of misdemeanor,
be obtained, at the wisli of either the prosecutor or the de-
fendant; and formerly, until the Criminal Appeal Act, 1907.
(s. 20), the defendant enjoyed also the unique privilege of
being able to obtain a new trial, if he were wrongly convicted.
(B) In its appellate functions the King's Bench Division
is much more active. They are usually exercised through
two (or three) of its judges sitting as a Divisional Court.
The appeals are of two kinds.
(1) By a writ of Certiorari the proceedings of Quarter
Sessions or of any still lower court may be brought before it
to be reviewed and (if necessary) quashed for error of law
apparent on the face of them; e.g., absence of jurisdiction 2.
(2) By a Case being stated by justices of the peace
1 The latest cases are those of the leaders of the Jameson Raid, see L. B.
[1896] 2 Q. 15. 425 ; and of Lyncli, L. 11. [1903] 1 K. B. 414.
- No such course can be taken with the proceedings of Assizes or of the
Central Criminal Court.
xxviii] Assize Courts 423
at petty sessions\ (at the instance of either prosecutor or
defendant), any question of law that has arisen before them
may be brought to the King's Bench Division for deter-
mination.
Formerly, too, a Writ of Error might bring up before it
any question of law apparent on the record of proceedings
in which judgment had been given by any court of record ;
(e.g., at the Assizes, or the Central Criminal Court, or the
Quarter Sessions). But writs of error, which had long been
very rare, were abolished in 1907 by the Criminal Appeal
Act of that year, (s. 20). See above, p. 420.
V. The Courts of the Commissioners of Assize.
These ancient itinerant criminal tribunals^ are created by
two commissions^ issued two, three, or four times ^ a year,
(according to the county), to judges of the High Court
and some eminent members of the bar, authorising them to
try the prisoners presented for trial by the grand juries of
the several counties for which the Assize is to be held. One
criminal commission is that of Oyer and Terminer (" to hear
and to determine"), giving authority to try all prisoners
against whom true bills have been found at that particular
Assize. The other is that of General Gaol Delivery, giving
authority to try all prisoners who are in gaol or have been
released on bail; whatever may have been the Assize at
which the bills against them were found. There is, in
practice, little difference between the lists of prisoners triable
- under the two commissions ; and the two lists of commis-
sioners are identical. The courts thus held can try any
^ Courts of Quarter Sessions also may state a case for the consideration
of tlie King's Bench Division, but only in regard to some matter that has
come to them on appeal from petty sessions.
2 By s. 29 of the Judicature Act, 1873, they now are to be regarded as
branches of the High Court of Justice.
3 See Stephen, Hist. Cr. Law, i. 75—144. * See p. 523 infra.
424 Quarter Sessions [ch.
indictable ofiFence whatever, and are the most important of
our criminal courts of firtit instance ; but they have no
appellate jurisdiction.
In London and its suburbs the function of the Assizes
is discharged by the Central Criminal Court — a special
tribunal created by 4 and 5 Wm. IV. c. 36 ; the Commis-
sions of Oyer and Terminer and of General Gaol Delivery
for the metropolitan district being addressed to the Lord
Mayor and Aldermen of the City of London, along with all
the judges of the High Court, the Recorder, the Common
Serjeant, and others. The sittings under these commissions
are held monthly ; and sometimes proceed in as many as four
courts simultaneously, one or another legal member of the
commission presiding in each of these.
VI. General Quarter Sessions.
These, in their oldest form, are meetings of the justices
of the peace of a particular county ; and two at least of such
justices must be present. They are held once a quarter, or,
by adjournment, oftener\ More recently, 108 cities and
boroughs have also obtained the privilege of a local Court
of Quarter Sessions; presided over, however, not by justices
of the peace, but by a Recorder, who is the sole judge. He
must be a barrister of at least five years' standing'^ Every
' In the County of London, the volume of business is such that they are
held much ofteuer. Thus those foi Loudon try one-fifth of all the persons
indicted in Enf^land and Wales and are held twice a month.
' In the Quarter Sessions of counties (except two or three populous
ones possessing salaried Chairmen) there is no such guarantee for the
accurate administration of justice. It is a singular paradox that our consti-
tution should permit trials (not merely for petty matters of pohce but) for
charges that seriously affect men's character and liberty to be conducted by
persons who, however honourable and eminent, are legally untrained, whilst
it requires a civil suit for the smallest ordinary debt to be heard before
a professional lawyer. The evil is the greater because criminal practice,
being badly paid, does not attract the most experienced advocates; and
because the Bench at Sessions, being a numerous body, have less sense of
responsibility than an individual judge. The percentage of successful appeals
xxviiij Quarter Sessions 425
Court of Quarter Sessions, whether for a county, a city or
a borough, has both an original and an appellate jurisdiction.
(A) As a court of first instance it can try all indictable
offences except^ :
(i) Such felonies — other than burglary — as are punish-
able, on even a first conviction, by penal servitude for life or
by deaths
(ii) Certain specified crimes which, though less grave
than those already enumerated, are likely to involve difficult
questions of law; e.g., pra?munire, forgery, bigamy, conceal-
ment of birth, perjury, libel, the offences created by the
Criminal Law Amendment Act, 1885 ^ and the statutory
offences of misappropriation by bankers, agents, and trustees*.
For all indictable crimes, except these two classes. Courts
of Quarter Sessions have a jurisdiction concurrent with that
of the Assizes*.
(B) Ail Courts of Quarter Sessions have also an appellate
jurisdiction, (extending to questions not only of law but
even of fact), over convictions that have taken place
from County Sessions is more than double that from convictions before
Recorders.
^ 5 and 6 Vict. c. 38. Before this Act it could try any crime, except
treason and (it is hard to say why) perjury and forgery (2 East 18) ; though
in practice it rarely dealt with the most serious felonies.
^ Sessions have now been authorised (59 and 60 Vict. c. 57) to try any
cases of burglary that are not grave or difKcult. More than two-thirds of
the indictments for burglary, actual or attempted, are now tried by them.
^ 48 and 49 Vict. c. 69.
* Supra, p. 235.
^ More than twice as many prisoners are tried by Quarter Sessions as by
the Assizes and the Central Criminal Court together. Thus in 1911, only
4,105 persons were tried at these latter courts, but 8,838 at Quarter Sessions.
Of the latter rather more than two-thirds went to the Quarter Sessions of
counties, and rather less than one-third to those of boroughs. About three-
quarters of the trials for offences against Property take place at Quarter
Sessions ; but little more than a third of those for offences against the
Person.
426 Pemj Sessions [ch.
at Petty Sessions. But its details can more conveniently be
considered in connexion with ihu latter tribunals; (see p. 437).
VII. The Coroner's Court.
The Coroner's Court, which has a history stretching back
for seven hundred years S is still held as a Court of Record
for inquests upon cases of homicide or sudden death". Bub
its criminal function is only to accuse and not to try. The
finding of a Coroner's inquest, accusing a prisoner of murder
or manslaughter is equivalent to an indictment by a grand
jury. It is the practice, however, in such cases to take the
precaution of also preferring a bill of indictment before the
grand jury; and if this bill is thro^^^l out it is not usual to
offer any evidence upon the coroner's inquisition. But if
they do find a true bill, the accused can be tried upon
both the indictment and the inquisition together.
Vlil. Petty Sessions.
These constitute a noteworthy survival of the mediaeval
idea of a Popular justice; (now generally superseded^ by the
Royal justice, which acts only, as Magna Charta provides
(s. 45), through professional experts "qui sciunt leges regni").
For they are composed of justices of the peace ; gentlemen,
not necessarily of legal experience, nominated to their office
by the Lord Chancellor''; (who acts on the advice of the
Lord Lieutenant in the case of the county justices, and of the
Home Secretary in the case of borough' justices). The
sittings of Petty Sessions constitute the basis of the govern-
1 See Pollock and ISInitland, i. 379 ; and the Introduction to the SeUlen
Society's Select Coroiiem' EoUs. 1 Bl. Comm. 346.
2 From 35,000 to 87,000 inquests are held in each year.
8 Stubbs' Constitutional History, i. ch. xiii.
■» There are about 21,000 ; sitting for 85 "counties" (in 750 petty sessional
divisions) and 227 boroughs.
' For now the Crown may, on the petition of any Borough, grant it a
separate commission of the peace. But the persons appointed to act as
justices under this are not thereby authorised to act in any Quarter Sessions.
xxviil] Petty Sessions 4:27
ment of this country ; by being held in every locality, and
with great frequency, they effectively secure public order and
tranquillity. Through them " nnore than through any other
agency (except the tax-gatherer) are the people brought into
contact with the Government." In the scale of dignity such
sittings of justices of the peace are the lowest of our criminal
courts; but the amount of work done by them is so vast
that they play a far more important part in our penal system
than some tribunals of much greater dignity. The vast
majority — say, about two-thirds of a million annuall}- — of
our criminal cases ai e entirely disposed of by justices, outride
their Quarter Sessions ; and almost all the remainder are
commenced before them. General consent, corroborated by
statistical evidence}, testifies that in these matters — where,
as there is no jury, the questions for the bench to decide are
far oftener of fact than of law, and where no punishment of
great severity can be imposed — the justices discharge their
duties with conspicuous success.
In exercising some of their many functions they do not
constitute a court of law (although they may have to take
evidence and act on it); as in some of their licensing
duties'. In others, although they do constitute a court,
it is not one of summary jurisdiction; as when conducting
a merely preliminary examination into some grave charge,
which they will send to be tried by a jury^ And even when
sitting as a court of summary jurisdiction, to try a charge
and adjudicate upon it finally, they do not always constitute
a "Petty Sessional Court"; as when sitting in a building
which they only occasionally use*.
1 Infra, p. 438. Gneist, the most authoritative of all foreign critics of
our institutions, pronounces English justices of the peace to exhibit "den
Charakter des Richteramts in seiner besten Gestalt."
- Boulter v. Justices of Kent, L. R. [1897] A. C. 556. When sitting thus,
(i.e. not "judicially" but "administratively"), they may act on wjisworu
testimony or on their own knowledge.
* Infra, p. 446. * Infra, p. 429. Yet they still are a "Petty Session."
CHAPTER XXIX.
SUMMARY PROCEDURE.
The summary jurisdiction of justices of the peace is the
creation of statutes. Parliament has thus immeasurably
extended the common-law powers of justices, whilst at the
same time reducing to a minimum > their legal responsibility;
and the steady tendency of modern legislation is towards
giving enhanced importance to these courts of summary
jurisdiction. It will be advisable, therefore, to consider their
procedure somewhat fully.
This summary jurisdiction is not exclusively criminal, but
extends also to a few civil cases. It may in some matters be
exercised, (though even in them only to a limited extent), by
a single justice; but in most it is necessary to have either
two ordinary justices'* or a stipendiary magistrate*. It is
always subjected to a stringent limitation of Time; for it
1 See now 11 and 12 Vict. c. 44.
' If several justices sit, the majority decide. The Chairman has no
casting vote. Accordingly if the votes be equal, the matter must either
drop in order to be renewed before a diflerent Court, or else one justice must
withdraw his vote — perhaps the junior, or one whose vote is opposed to that
of the Chairman.
• A stipendiary magistrate must be a barrister of several years' standing ;
and accordint.'ly is empowered to exercise all the power that a full petty-
sessional court of two justices would possess. Stipendiaries are appointed
not only in the Metropolis but also in some provincial towns. If a provincial
stipendiary happens to sit with other justices, he has only a single vote; but
a London "police magistrate" ia the sole judge, even thouyh other justices
be on the bench with him.
CH. xxix] Summary Procedure 429
can only be invoked within the six months following "the
time when the matter arose\" And for its exercise a pre-
scribed Place of meeting is now made essential ; in order to
secure ready access for the public. Two classes of such places
are recognised.
(1) The habitual place of meeting of the justices of the
locality — their " petty sessional court-house"." Two justices,
by sitting here, constitute themselves a "Petty Sessional
Court"; and such a court alone can exercise the summary
jurisdiction to the full. For a single justice, wherever
sitting, can only hear certain classes^ of cases ; and even
in them he can pass only a limited sentence — an imprison-
ment of not more than fourteen days, or a fine of (including
costs) not more than twenty shillings\
(2) In counties, even the area of a single petty sessional
division may be so wide as to make it convenient to provide
for it subsidiary places of meeting, for use in case of emergency.
Such a place is called an "occasional court-housed" When
sitting in it, even a bench of two or more justices can
inflict no greater sentence than that which a single justice
could; though they are not limited to his range of cases^
Justices can compel the attendance of any witness in
any case before them, (alike in their summary jurisdiction^,
both civil and criminal, and also in their preliminary
hearings of indictable offences), by issuing a summons to
him to come*, or even, in case of need, a warrant to bring
him. The hearing of any matter within the summary juris-
diction is commenced by stating to the defendant the
^ 11 and 12 Vict. c. 43, s. 11. Exceptions are most rare.
^ As to "Juvenile Courts," see p. 438 infra.
2 E.(j., Drunkenness in a public place or on licensed premises.
^ 42 and 43 Vict. c. 49, ss. 20 (7), 20 (9), 49.
s lUd. s. 20 (4). 6 s. 20 (7). '' H and 12 Vict. c. 43, s. 7.
8 Or to produce documents or things ; 4 and 5 Geo. V. o. 58, s. 29.
430 Summary Frocediire [ch.
substance of the information or complaints If he denies its
truth, the case proceeds. The prosecutor, or complainant,
opens his case by a speech ; and then calls his witnesses, who
are examined in chief, cross-examined, and re-examined.
The defendant may then similarly open his case, and his
witnesses are similarly heard. The other party may then, if
necessary, call rebutting evidence. But neither side has (as
at trials before a jury) any right to make a second speech,
unless some point of law arises. The decision of the justices
is then given. If it be against the defendant, they have
power, both in civil and in criminal cases, to adjudge him
to pay to his opponent such costs as they shall think fit. If,
on the other hand, they dismiss the case, they can similarly
direct costs to be paid to the defendant.
The summary jurisdiction of Petty Sessions covers, as we
have said, both civil and criminal cases.
(1) Thecivil jurisdiction is the less important. Amongst
the matters coming within it are bastardy proceedings;
1 The "information" (or, similarly, the "complaint") is at once the
foundation of the justices' jurisdiction and the definition of the charge {B,eg.
V. Hughes, L. R. 4 Q. B. D. 614) ; it is in the nature of an indictment. (The
summons or warrant is, on the other hand, a mere process to secure the
defenifb,nt's presence ; and consequently its absence or its illegality does not
affect the jurisdiction of the court, so long as he is in fact present before it
to answer to the accusation.) But the charge so defined by it need not be
adhered to with such strictness as an indictment is. For, as Lord Russell
said, the hearing is not "of," but only "based on" the information. By
11 and 12 Vict. c. 43, ss. 1, 9 the justices may disregard any small variance
between the information (or complaint) and the evidence adduced in support
of it, and give judgment against the defendant accordingly ; unless he has
been so far misled by the variance that it is right to adjourn the proceedings
to enable him to meet the charge in the shape it has now assumed. (But
they are not authorised actually to "amend" the summons or information
or complaint, as is so often done, in order to fit it to the unexpected
evidence that is thus given.) This provision, however, only applies to
variances in the mere circumstances of the charge ; not to evidence which
discloses some charge legally different from that alleged in the information
OT complaint, even though the difference be only that between being " drunk
and riotous " and being " drunk " ; Martin v. Frldijcon, 1 E. and E. 778.
xxix] Summary Procedure 431
disputes between employers and workmen ; claims for Dis-
trict rates, or contributions due under Public Health Acts
from the owners of house property, for the making of streets
or the repair of sewers, (contributions which are sometimes
of large amount^). These civil proceedings are commenced
by a " complaint." It is never made on oath, and need not
be made in writing*. Only a summons can in the first
instance be issued ; though, if the defendant fails to appear
in obedience to the summons, a warrant for his arrest may
then be issued, if the complainant substantiates his claim
upon oath'. As in all other civil proceedings, the defendant
can be compelled to give evidence on oath. If the case be
decided in favour of the plaintiff, it can only produce an
order to pay money, which creates a mere "civil debt."
Hence payment of it cannot be enforced by imprisonment;
except in case of wilful non-payment*, when the defendant
has it in his power to pay ; and even then it is only a civil
and not a criminal imprisonment.
(2) The summary jurisdiction in criminal cases covers
some hundreds of offences; e.g., many petty forms of dis-
honesty or of malicious damage, acts of cruelty to animals,
transgressions against the bye-laws that secure order in
streets and highways, and trivial violations of the laws
relating to game, intoxicating liquors, adulteration of food,
revenue, public health, and education'. The proceedings
com-menee with an " information," which (unlike a " com-
plaint ") must usually be in writing; and may (though it
1 E.g. £546 from one estate ; Corhett v. Badger, L. B. [1901] 2 K. B. 278.
2 11 and 12 Vict. c. 43, s. 8. 3 jjj-^, g. 2.
* Or, in the case of a bastardy order (42 and 43 Vict. c. 49, s. 54).
<* Occasionally a severe pecuniary penalty is possible ; e.g., that for
keeping .~ gaming-house may amount to £500, (17 and 18 Vict. c. 38, s. 4j;
and that upon a railway company which provides any special facilities for
conveyance to a prize fight, may amount to as much as £500, and must not
be less than £200, (31 and 32 Viot. o. 119, s. 21).
432 Summary Procedure [ch.
need not) be on oath. If it be on oath a warrant may, even
in the first instance, be issued for the arrest of the defendants
If it be not on oath, only a summons can be issued in the
first instance*; though if the defendant fails to appear in
answer to the summons, a warrant will then be issued^ At
the hearing, as the proceedings are criminal, the defendant
cannot be compelled to give evidence ; though since the Act
of 1898* he now can do so if he desires. If the hearing
results in a conviction the sentence may impose imprisonment
or a fine ; and payment of the fine is enforceable by (criminal)
imprisonment-'. The justices are invested in these criminal
cases "v\dth a remarkable statutory power of shewin?:^ mercv®..
For if, though the charge is proved, they think it unwise''
actually to punish, they may discharge the offender on
his giving security to be of good behaviour and appear
when called on ; or they may even, in spite -of the charge
being proved, dismiss it altogether. But, in taking
either course, they may, if they like, order the defendant
1 11 and 12 Vict. c. 43, s. 2.
2 For the comparative statistics see p. 446 infra.
* By the common law anyone accused of crime must appear in person at
the bar of the criminal court. But^ by statute, courts of summar^LJiins-
diction, as the offences are trivial, may try an offender in his absence, except
in London (11 and 12 Vict. c. 43, s. 1.3). Thus if a defendant who has
been served with a summons does not appear at the appointed time, tho
justices may either issue a warrant to bring him up, or they may instead
proceed to hear and determine tlie case without him.
■» 61 and 62 Vict. c. 36; supra, p. 400.
s But without hard labour ; Criminal Justice Administration Act, 1914,
s. 16 (1). This Act also provides (s. 13) that no sentence of imprisonment,
on a suinmary conviction, shall be for less than five days; but "Detention
in police custody," instead, may be ordered for four days or less, even for
adults. And, after August, 1915, a convicted " juvenile adult " (infra,
p. 484, n. 2) may be sent on to Quarter Sessions to be there sent to a Borstal
institution.
^ And they exercise it in nearly ten per cent, of their cases.
' E.g., from the character, antecedents, age, health, or mental state of
the offender; or from the triviality of his offence.
xxix] Indictable offences 433
to pay to the prosecutor, as damages, any sum up to ten
pounds' (cf. p. 95 supra), and to pay costs.
The summary criminal jurisdiction was originally con-
cerned only Avith non-indictable offences; but it has since
been_extended to some exceptional cases of indictable ones.
Some of these are misdemeanors. Thus, as already men-
tioned*, assaults (when not so grave as to be of a felonious
character') may be thus tried, provided that the person
assaulted be himself the prosecutor. And, by consent of
the accused, charges of libel when brought against the
publishers of a newspaper* may also be tried summarily.
And even some cases of felony may be thus tried.
By the Summary Jurisdiction Acts, 1879 and 1899*, power
has been given to Petty Sessional Courts to deal summarily
with three classes of offenders, instead of committing them
(as at common law was the only course) for trial by a jury.
The power is only to be exercised if, during an examination
for such commitment, the justices "become satisfied by the
evidence that it is expedient to deal with the case sum-
marily." The expediency will, of course, depend both upon
the circumstances of the particular case and also upon the
antecedents of the person accused. But even when the
justices desire thus to try an offender summarily, his own
1 7 Edw. 7, c. 17, F. 1 (3); superseding s. 16 of the Summary Juris-
diction Act 1879. "It would be well" — I have heard Lord Brampton
remark — "if justices oftener bore in mind this power of awarding damages."
^ Supra, p. 159. If a husband is convicted of an aggravated assault upon
his wife, the justices may, if they think fit, make a separation order, and also
require the husband to pay a weekly sum for the support of his wife.
3 24 and 25 Vict. c. 100, ss. 39, etc. Nor when it is charged as an
"affray" i.e., fighting in a public place, so as to cause general affright.
* 44 and 45 Vict. c. 60, s. 5. But the libel must be of only a trivial
character, and the only punishment that can be inflicted is a fine (which
must not exceed £50).
« 42 and 43 Vict. c. 49 ; 62 and 63 Vict. c. 22. Four-fifths of all the
trials for indictable offences now take place thus.
K. 28
43-1 Summarij Procedure [ch.
consent' — or, if ho be a child under twelve, the consent of
bis parent or guardian — will also be necessary to waive his
common-law right of being tried by a jury. The three
classes who may thus be dealt with are the following:
(i) " Children " under fourteen, when charged with any
indictable offence whatever, excei^t homicide. But the
punishment must not exceed one month's "detention" or
a fine of forty shillings, with or without a whipping; and a
whipping may be ordered alone*.
(ii) "Young persons," from fourteen to sixteen years
of age^ when charged with any indictable offence whatever,
except homicide. The limit of punishment is, however, ex-
tended to three months' imprisonment, with or without hard
labour; or, instead, to a fine of £10.
(iii) Adults only when charged with the following par-
ticular offences :
(a) Simple larceny, thefts punishable like larceny, larceny
from the person, larceny as a clerk or servant, embezzlement,
receiving stolen goods, obtaining goods by false pretences,
setting on fire plantations or heaths* &;c., wdien the value of the
property stolen (or the damage done by the fire) does not
exceed tiuenty pounds^ ; and also charges of merely attempting
to commit any of these offences (except embezzlement),
1 Such consent is usually given realily; in order to avoid the risk of
imprisonment whilst awaiting trial, and of receiving a severer sentence than
it is possible for the Petty Sessions to inflict. Hence, though this juris-
diction is not available in all cases of indictable crimes, yet about four
times as many such crimes are tried under it as are tried by actual indict-
ment.
* 42 and 43 Vict. c. 49, s. 10 (1). The whipping will be with a birch rod,
and not more than six strokes. Even in cnscs of Felony, the child may be
merely fined ; 4 and 5 Geo. V. c, 58, s. 15 (3).
» See 8 Edw. VH. c. 67, s. 128 (1).
* 24 and 25 Vict. c. 97, s. 16.
' By 4 and 5 Geo. V. c. 58, s. 15 (1). Before April 1, 1915, only forty
shillings.
xxix] Indictable offences 435
however great may be the value of the property. But the
punishment must not exceed imprisonment, with or without
hard labour, for three months, or, instead, a fine up to £20 ;
or, if the value is over forty shillings, six months, or £50 \
Indecent assault on a boy or girl, under sixteen, is now
added; and imprisonment for it may be for six months.
(h) The offences thus enumerated in (a), however great
may be the value of the property, if the adult pleads guilty.
The punishment can only be imprisonment, with or without
hard labour, for not more than six months ; there is no fine^
By a converse innovation, the Summary Jurisdiction Act,
1879, has made it possible for the graver of the non-indictable
offences to be dealt with, instead, by indictment. For it
enacts' that any offence (except assault) for which, on
summary conviction, a sentence of imprisonment for more
than three months can be imposed, shall be dealt with by
indictment if at the hearing, but before the charge has been
gone into, the defendant claims to be tried by a jury*.
An important restriction upon all exercise of summary
jurisdiction by justices must be noticed. In consequence of
the difficulties of the English law of land, they have imme-
morially been debarred from dealing with any question which
involves the decision of a bond fide and reasonable claim to real
property or to some right therein. Hence if a riotous crowd
pull down the fences enclosing a gentleman's estate, which
they reasonably believe to be common land, the justices
cannot try them.
1 Criminal Justice Administration Act, 1914, s. 15 (1).
^ When dealing summarily with indictable offences the justices may
now, by 8 Edw, VII. c. 15, s. 6, order the convicted defendant to pay the
costs of the prosecution. Their consecutive sentences, for his two or more
indictable offences, must not exceed twelve (for unindictable, six) months
in the aggregate; C. J. A. Act, 1914, s. 18. ^ g. 17.
* Accordingly, when any person appears before justices upon a charge of
any such offence, they must — before taking any evidence — inform liim of his
jright to be tried by a jury ; (4'2 and 43 Vict. c. 49, s. 17 (2)).
28— 2
436 Aj^peals from Juf^tices [cii.
The practical importance of the various powers of justices
is vividly shewn by the figures of the judicial statistics of
every year. Thus, in 1913, in addition to all the civil cases
which they determined, they decided summarily » no fewer
than 680,290 charges of petty offences, as well as 50,758
charges of indictable offences against persons who elected to
be tried summarily ; besides committing about 12,511 persons
for trial before a jury ^
Appeals from Petty Sessions.
There are, as we have already seen, two tribimals by which
the summary proceedings of justices may be reviewed; the
King's Bench Division^ and the Quarter Sessions*.
(1) The control of the King's Bench Division is exercised
in two ways :
{a) It may issue a writ of Certiorari to bring up a con-
viction, and quash it, if necessary, for some defect of law
which vitiates it ; e.g., if the justices have convicted on
an "information" that was not laid within the six niDnths*.
' The charge is proved in about eight cases in every nine. Of the pett^-
offences proved, only about a ninth end in Imprisonment.
» A further and a noteworthy (though not a strictly official) service
rendered by justices' courts is that of giving advice to the poor in their
legal difficulties. Sir James Vaughan, the late Chief Magistrate of the
metropolis says:— "To our courts the poor resort with confidence; they
come and lay before us their own various troubles and difficulties, and cases
of oppression which they have met with ; and they ask our advice. The
confidence thus engendered amongst the people of a district is such that very
many wrongs are redressed without issuing any summons at all, simply by
the magistrate's sending a message by a constable to the party complained
about." A French eyewitness of these consultations found "quelque chose
de frappant k voir la con fiance qu'ont les malheureux dans la bonte des
magistrats. C'est pourquoi la justice reste toujours populaire." (Frauque-
ville, Syst. Jud. G.-B., u. 326.)
3 Supra, p. 423. * Supra, p. 425.
» Supra, p. 429. This Division may also intervene to compel justices to
perform duties devolving upon them ; e.g., by granting a Mandamus, or rule^
requiring them to issue a eummuns or to hear and determine a charge.
xxix] Aj)peals from Justices 437
(h) It may determine any case which justices have
themselves stated for its decision, as to any point of law
that has been determined by them^ (whether apparent on
the face of the proceedings, or not) ; e.g., where they have
overruled a defendant's objection that the evidence against
him was not legally sufficient to support a conviction. They
may state such a case at the instance of either party ; (not
like appeals from trials before juries, which can only" be at
the instance of the defendant^).
(2) The appellate jurisdiction of Quarter Sessions* is
not, like that of the King's Bench, coextensive with the
whole range of the summaiy jurisdiction of justices. It
arose first in the case of particular offences to which it
has been expressly attached by the respective statutes that
prohibited them. And for most of the non-indictable offences
such an appeal had thus been allowed to the defendant ; and
occasional!}^ even to the prosecutor. But, now, the Criminal
Justice Administration Act, 1914^ has made a general
provision that any person aggrieved by any conviction of a
court of summary jurisdiction, for any offence, may appeal to
Quarter Sessions, (unless in the lower court he admitted his
guilt). On the other hand, these appeals are not — like those
to the King's Bench Division — limited to questions of law ;
for the Quarter Sessions hear the whole case oyer again®;
^ 20 and 21 Vict. c. 43, s. 2 ; 42 aud 43 Vict. c. 49, s. 33.
2 Supra, p. 420.
3 Even when justices have refused to state a case, the King's Bench
Division may order them to do so; (42 and 43 Vict. c. 49, s. 33).
■* Supra, p. 425.
5 4 and 5 Geo. V. c. 58, s. 37 (1).
6 Accordingly it is not here, as in appeals in higher courts, for the
appellant to shew that the decision of which he complains was wrong ; but
for the respondent to shew that it was right. Hence if the prosecutor
does not appear, the Quarter Sessions will have to quash the conviction
{Reg. V. Purdey, 5 B. and S. 909) ; and this even when the appellant
does not dispute its validity, but protests only against the severity of the
sentence.
438 Appeals from Justices [ch. xxix
(even now witnesses, who were not hoard at Petty Sessions,
being admissible). The appeal is heard before the justices
of the Quarter Sessions alone, without any jury ^
> The number of cases iu which any of these appeals are made, either to
the King's Bench or to Quarter Sessions, is very small ; the yearly average
being less than a hundred to the former, and about a hundred and fifty to
the latter, though the yearly total of summary convictions for non-indictable
offences is over 500,000. Appeals to the King's Bench average under a dozen
by certiorari and under ninety by case stated; about half being unsuccessful.
It may safely be estimated that there is only one appeal to Quarter Sessions
for every three thousand of those convictions in which there is a power so to
appeal. Doubtless considerations of expense have much to do with this;
j'et, even after allowing for them, these statistics, coupled with the further
fact that less than half of the appeals to Sessions are entirely successful,
afford noteworthy evidence of the satisfactory working of our courts of
summary jurisdiction. After close personal observation of our English
police-courts, a learned French lawyer, the Comte de Franqueville came to
the conclusion that "il est difficile d'iraaginer unc organisation plus simple,
plus pratique, plus prompte, ou plus humaiue"; (Le Systemc judiciaire de
la Grande-Brctagne, n. 710). An advocate once prominent as a defender of
prisoners says : " I had very great experience with country Benches. I am
bound to say that, as a rule, very little fault could be found with the
manner in which they did their work "; (Montagu Williams' Leaves of a Life,
II. 208).
NOTE
Juvenile Courts
Ey the Children Act, 1908 (8 Edw. 7, c. G7, s. Ill), a court of summary
jurisdiction, when dealing with any case that concerns, a person under
sixteen, with no adult co-defendant, is called a " Juvenile Court." It
(a) must sit either in a different room, or else at a different time, from its
ordinary one ; and {h) must exclude all persons, except those directly con-
cerned in the proceedings and the newspaper reporters.
In iyi3 these courts tried 34,602 juveniles j of these only 1603 were
girls.
CHAPTER XXX.
ORDINARY PROCEDURE.
I. Preliminary Steps.
From the modern, and purely statutory, form of procedure
which prevails in courts of summary jurisdiction, we now
pass to the more ancient form which prevails in those courts
where otfenders are tried in the common-law manner, that is
to say, by a jury. In this procedure — still styled " ordinary,"
yet now far rarer than the summary — there are ten possible
stages which call for explanation. These are: — 1. Informa-
tion; 2. Arrest; 3. Commitment for trial; 4, Prosecution,
i.e., Accusation ; 5. Arraignment ; 6. Plea and issue ; 7. Trial
and verdict; 8. Judgment; 9. Reversal of judgment; 10. Re-
prieve or pardon.
During the greater portion of the history of English
criminal law its provisions for the detection and arrest of
offenders wereS as we have said-, very defective. In the
earliest times, indeed, excellent provision had been made by
the system of Frankpledge^ A frankpledge was a group of
adult males — sometimes all those within a particular town-
ship, sometimes only a " tithing " or group of ten, selected
individually — who were liable to amercement if they did not
surrender to justice any one of their number who committed
a crime (each individual in the group is also sometimes
called a " frankpledge "). This institution apparently only
^ " lu 1800, in no department of English government was inefficiency so
pronounced as in that of police"; W. L. M. Lee's History of Police, p. 214.
2 Sujpm, pp. 29, 280. » Pollock and Maitland, i. 554—558.
440 Information [ch.
existed south of the Humber; but probably arose there as
far back as the Anglo-Saxon period. From at least the time
of Henry I. a "view of frankpledge" Avas taken by the
sheriif periodically, at which the above-mentioned amerce-
ments were collected. After the frankpledges fell, in the
fourteenth century, into decay, England possessed no effective
machinery for arresting criminals or for preventing the com-
mission of crime, until the creation, by Sir Robert Peel's
energy, of the modern police force. Even in London, as
is stated in the preamble to his Act of 1830S " the local
establishments of nightly watch and nightly police were
found inadequate to the prevention and detection of crime,
by reason of the frequent unfitness of the individuals em-
ployed, the insufficiency of their number, the limited sphere
of their authority, and their want of connection and co-
operation with each other." But since the successive establish-
ment of metropolitan, borough, and county police-forces ^ the
detection of offenders is so efficient that in over seventy
per cent, of the known cases of indictable crime, a prosecution
takes place ; and six-sevenths of the prosecutions succeed.
1. Information.
Every justice of the peace has by his commission the duty
of " conserving the peace " by taking active steps to exact
securities from suspected persons, to suppress riots, and to
apprehend offen(iers. These duties he still actively exercises ;
(though, since tlie accession of the House of Hanover, the
judgesof theKing's Bench Division, on whomalso they are con-
ferred, have ceased to do so, regarding as more constitutional
that differentiation of function which keeps the judicial office
apart from all the strictly executive work of government).
Hence in ordinary procedure, just as in summary, tlie
first step usually is to lay an "information " before a justice
» 10 Geo. IV. c. 44.
* There are now over 30,000 constables; making 186 Forces.
xxx] Arrest 441
of the peaces It may be laid by any person who is aware of
the facts, whether or not he be the person aggrieved. It
usually is not technically necessary that it should be in
writing or be upon oath. But unless both these formalities
are observed, the justice can only issue a summons to the
accused to attend, instead of a warrant for his arrest.
2. Arrest.
Where there is good ground for supposing — as, for
instance, from the gra\aty of the charge — that a mere
summons would not suffice to secure the attendance of an
accused person, he must be arrested ^ in order to bring him
before a magistrate. On accusations of indictable offences,
a warrant is sometimes — only in about ten per cent, of
the arrests for such crimes — obtained, in order to authorise
the arrest. But (as we shall snbseqiiently see') the cases in
which ariest is legally permissible, without any such special
authorisation, are numerous.
I. Special authorisation for arrest always takes in
modern times the form of a written warrant*. This may
be issued in cases of political crime by a Secretary of State
or an}' other Privy Councillor, or, in any criminal case
whatever, by a judge of the King's Bench Division or (as
1 Stipra, p. 429. The justice may belong either to the district where
the offence was committed or even (unlike Summary jurisdiction) to that
where the offeoder is. Do not confuse such informations with the much
rarer and more formal "informations," by officials of the Crown, which
are a substitute for indictments ; infra, p. 453.
2 All arrest before trial seems inconsistent with Magna Charta; but
a literal observance of the provisions of the Charter would prevent the
enforcement of justice. For the early law of arrest, see Pollock and
Maitland, Hist. Bug. Law, ii. 5S0— 583. » Infra, p. 443 et seq.
* In early times (see Pollock and Maitland, ii. 577) it was the duty of
anyone who discovered that a grave crime had been committed to raise orally
a "hue and cry"; (hue is an exclamation of pursuit, akin to hoot). This
gave the same powers of arrest to all taking part in it as a written warrant
now-a-days would.
442 Arrest under Wayi'ant [ch.
usually happens) by a justice of the peaces It authorises
the person executing it to arrest the person therein de-
scribed". When executing the warrant, he must have it with
him ; (except in cases where he could have arrested without
one). Since the charge is not a civil but a criminal one, he
is allowed to break open even the outer doors of a house if
he cannot otherwise seize the person who is to be arrested
{e.g., if those in the house will not give him up). If the
charge be one of treason, felony, or dangerous wounding, he
may, moreover, use any degree of force that may be necessary
to effect the arrest of the accused, even to the infliction of
wounds or death upon him ; whilst if, on the other hand, the
latter should kill the arrestor he will be guilty of murder^
But if a constable attempts to arrest offenders illegally
{e.g., on a void warrant) they will be guilty only of man-
slaughter if, in resisting such an arrest, they kill the constable.
1 If issued by an ordinary justice of the peace, it can only be executed
within the district to which his commission extends ; though it can be
executed in any other county or district as soon as it has been " backed " by
any justice who is commissioned there. But a warrant issued by a metro-
politan police magistrate for any matter arising within the metropolis may
be executed anywhere without backing (2 and 3 Vict. c. 71, s. 17) ; and
a warrant issued by a borough justice may be executed at any place in the
particular county in which the borough is situated, without backing (i.3 and
4G Vict. c. 51), s. 223). When a warrant has been executed outside the
district of the justice who issued it, the accused is usually taken back to be
examined in that district. But it is permissible for him to be instead brought
before some justice of the place of his arrest (11 and 12 Vict. c. 42, s. 11);
though, even then, the trial at the Assizes or Sessions will usually take
place in the district where the warrant was originally issued.
- The justice may endorse on it a direction to the police to admit to bail
in sums specified ; C. J. A. Act, 1914, s. 21 (1).
^ If the warrant were only on a charge of misdemeanor, it would equally
be murder to kill the arrestor (Foster, p. 311); yet the arrestor would not
be justified in killing the accused man merely to prevent his flight; though
should the man actually resist arrest, he will be justified in counteracting
this resistance by any necessary force, i.e., he may, and must, stand his
ground, instead of first trying to avoid a conflict in the mahner that the law
requires {mipra, p. 101) in cases of Chance-medley; 2 Hale 118.
xxx] Arrest ivithout Warrant 443
II. Even when no warrant has been issued, the common
law often permits an arrest to be effected; a permission
accorded not only to a constable but even to private persons.
The power has been further extended by modern statutes,
especially in the case of constables.
(A) A private person, without any warrant, may arrest
(i) Any person who, in his presence, commits a treason or
felony or dangerous wounding. The law does not merely
permit, but requires, the citizen to do his best to arrest such
a criminals And as he is thus acting not only by a right
but under an imperative duty, he may break outei^ doors in
pursuit of the criminal. And for a treason or a violent felony
he may use whatever force is necessary for capturing the
offender, as, for instance, shooting at him, if he cannot other-
wise be prevented from escaping ; so that if the felon's death
results, the case will be one of justifiable homicide^
(ii) Any person whom he reasonably suspects of having
committed a treason or felony or dangeious wounding, pro-
vided that this crime has been actually committed by some
one (whether by the arrested person or not). But in this case,
as also in all the statutory ones about to be mentioned, the
law, though permitting a mere private person to make an
arrest, (and so making it murder for a guilty man to kill him
by resisting it), does not command him to do so ; and hence
confers no general right to effect it by breaking into a house
or by using blows or other violence^
1 2 Hawkius P. C. e. 12, s. 1. Besides this power to arrest, with a view
to permanent detention, a person who actually has committed grave crime,
every private citizen has also the right to prevent such crimes, by seizing
any man who is about to commit a treason or felony or even a breach of the
peace, and detaining him teviporarihj, until the danger is over.
2 1 Hale P. C. 481, 484. Supra, p. 103.
* I.e., the private person will be justified for arresting the suspected felon,
even by fatal violence, if the suspicion be correct; but an innocent man is
not bound to submit to a piivate arrestor, so a killing, by either of them,
would be a Manslaughter.
444 Arrest without Wan-ant [ch.
(iii) In addition to these two common-law powers, modem
statutes permit any private person to arrest anyone whom
he "finds'" (a) signalling to a smuggling vessel "^ or com-
mitting any offence under (/3) the Vagrant Act', (7) the
Larceny Act, 1861*, or (8) the Coinage Offences Act, 1861 »j
or (e) committing by night any indictable offence whatever';
(iv) or, if the arrest be authorised by the owner of the
property concerned, anyone whom he finds committing any
offence against (a) the Malicious Damage Act, 1861 ^ (/9) the
Night Poaching Act^, (7) the Town Police Act», or (S) the
Metropolitan Police Acts^".
(B) A police constable, even when acting without a
warrant, has powers still more extensive than those of
a private person. Moreover as his official position renders
it in all these cases a duty for him to make the arrest, it
will, in any of them, be a duty, even for an innocent person,
to submit to him and not resist arrest".
(i) Like a private person he may arrest anyone who
commits, in his presence, a treason, or felony, or dangerous
wounding; and may break doors or use fatal violence if
necessary.
(ii) (Unlike a private person") he probably may arrest
for permanent detention anyone who, in his presence, com-
mits even a mere breach of the peace".
(iii) He may arrest anyone whom he reasonably suspects
of treason, or felony, or dangerous wounding, whether (unlike
> Accordingly, if the oCfcuder has completed the offence, even though he
has gone " but a single yard " away before detection or even before appre-
hension, it is too late to arrest him.
2 39 and 40 Vict. c. 36, s. 190. » 5 Geo. IV. c. 83, b. 6, supra, p. 320.
•* Or any one offering stolen goods for sale or pawn; 24 and 25 Vict,
c. 96, s. 103. * 24 and 25 Vict. c. 99, s. 1.
8 14 and 15 Vict. c. 19, s. 11. ' 24 and 25 Vict. c. 97, B. 61.
8 9 Geo. IV. c. 69, a. 2. " 10 and 11 Vict. c. 89, s. 15.
10 2 and 3 Vict. c. 47, s. 66, and c. 71.
11 Cf. Reg. V. Plielps, C. and M. 180. i- Supra, p. 443, note 2.
i» 1 Hale P. C. 587 ; 2 Hale P. C. 9U. But beo East P. C. c. 5, 8. 71.
xxx] Arrest without Warrant 445
the restriction on such arrest by a private person) the crime
has actually taken place or not^ It would seem that in
these arrests also he may use any necessary violence even
though fatal, and may break outer doors ; but some authorities
limit these powers to cases where the crime has actually taken
placed
(iv) Like a private person, he may arrest in the five
cases in (A) (iii).
(v) And, even without any authorisation of the owner of
the property, in the four cases enumerated under (A) (iv).
(vi) He may arrest any person loitering at night in
a highway or yard, whom he reasonably suspects of having
committed, or even of being about to commit, a felony against
the Larceny Act, 1861, the Malicious Damage Act, 1861, or
the Offences against the Person Act, 1861 ^
(vii) In London a constable may also arrest (a) any
person reasonably suspected of having committed, or even
about to commit, any indictable offence; and even (/3) any-
one loitering at night who cannot give a satisfactory account
of himselP.
As a person who arrests another without waiting to
obtain a warrant usually does so because he must act in-
stantly, if he is to act at all, the law on the subject ought
to be clear and simple. But as the foregoing summary
sufficiently shews, modern legislation has rendered it highly
^ Lawrence v. Hedger, 3 Taunton 13 ; Beckwith v. Pliilhy, 6 B. and C.
635. These cases shew that the constable's privilege, where the supposed
crime has not in fact taken place, extends to cases where he acts merely on
his own suspicion ; and is not (as is sometimes said) limited to those in which
some third person has made the charge. As to its being murder for the
supposed felon to kill the constable, even where no felony has actually
taken place, see Rex v. Woolmer, 1 Moody 334.
* See the Children Act, 1908, s. 19, for a constable's power to arrest
persons reasonably suspected of offences involving bodily injury or other
cruelty to a person tinder sixteen.
3 Ss. 104, 57, and 66 of these Acts. * 2 and 3 Vict. c. 47, s. 64.
44G PreJiminarf/ Examination [cH.
complicated, and (to use the words oi a very learned writer)
" most uusatisfactory and — to private pei-sous — almost a
snare .
3. Commitment for Trial
Of the persons who appear before justices of the peace,
for preliminary examir.ation upon charges of indictable crime,
only about ten per cent, come in mere obedience to a sum-
mons'. The others are brought up in custody; say. about
nine per cent, under warrants, and about eighty per cent,
after being arrested without a warrant*.
As the summons or warrant is merely a process to secure
appearance, the justice must take cognizance of any informa-
tion laid against the defendant when before him (^even upon
an illegal arrest), and may commit him for trial thereon*.
A preliminary examination (unlike most of the summary
healings) never requires the presence of more than a single
justice*. There is full power of compelling the attendance of
witnesses*, either by summons or (if necessary) by warrant ;
and if, on appearing, they refuse to give evidence, the justice
may commit them to prison for a week or until earlier sub-
mission. At common law the accused could not, as a right,
demand the assistance ot an advocate, nor could the public
» Mr C. S. Gieavcs, Q.C., in his edition of the CrimifuU L.ur Consolida-
tion Acts (p. 18S).
' Bat in the case of persons tried for non-iudictAble offences, near sixty
per cent, appear on mere summons, about forty per cent, on arrest without
warrant, and only two per cent, under warrants. Cf. p. 432 supra.
^ A person arrested without a warrant may be— and, if it is impracticable
to bring him before a justice within twenty-four hours, must be— released
on bail by the officer in charge of the police station, unless he thinks the
offence serious ; C. J. A. Act, 1914, s. 22.
* Rex V. Hughes, L. R. 4 Q. B. D. 616.
' And even if there be two or more they cannot technically be regarded
as a " Petty Sessional Court " under the definition now established by statute ;
supra, p. 429.
* And production of documents dc. Cf. p. 4J0, n. S supra.
x:vxj rretivainary Exaiidnation 447
insist wyuw nrlrnission'. And it would scorn' that this rule
still holds good ; in spito of the wi<io general language in
which rocont statutes' have required justices to act "in open
court"; which, however, must be interpreted as restricted to
cases of summary jurisdiction alone. The practice recently
followed in some exceptional cases of cc^mmunicating only in
writing the names and addresses of particular witnesses, and
forbidding the accused to put any questions about them
openly, is justifiable only in this view of the proceedings as
being not necessarily public. It must be noted that at these
preliminary inquiries the presence of the accused is abso-
lutely essential^
The preliminary examination is conducted as follows
The prosecutor "opens his case" by any necessary ex-
planation. Then his witnesses are examined in chief, cross-
examined, and re-examined ; their evidence being taken
down in writing at the time by the clerk to the justices.
The Crown witnesses having been heard, and their evidence
summed up'' by the prosecutor (if he wishes), the magistrate
(or his clerk for him) then reads the evidence over to the
accused, and states the charge. He then asks him if he has
anything to say ; telling him he need not say anything unless
he likes, and has nothing to hope or fear from any promise or
threat, and that whatever he says will be taken down and
' Cf. 11 aiul 12 Vict. c. 42, s. 19.
^ Boulter \. Justices of Kent, L. It. [1897] A. C. 556. A contrary view was
at one time taken by the law oiiicers of the Crown.
» E.g., 42 and 43 Vict. c. 49, s. 20 (1) ; 52 and 53 Vict. c. 63, 8. 13 (II).
* 11 and 12 Vict. c. 42, s. 17. Contrast the power given to justices in their
summary proceedings to try a defendant in his absence for petty offences, if
he fails to appear whon summoned; supra, p. 432.
■"' Oke's Magisterial Synopsis, p. 887 ; (contrast p. 430 infra). The soHcitor
for the accused may also be mm heard. Any adjournment of the proceedings
must be for not more than eiglit clear days ; unless both prosecutor and
accused consent to a longer one. Contrast summary proceedings ; there
there is no such limit of time.
448 Preliminary Examination [ch.
may be used against himV (He also asks whether he wishes
to call witnesses".) The defendant may either remain silent,
(a frequent course, but for an innocent man a most unwise
one); or leave it to his advocate to make a statement, or
himself make one. If he do make a statement it is
taken down in writing and afterwards read over to him and
signed by one of the committing justices^ After this, the
prisoner's witnesses*, if any, are examined, cross-examined,
and re-examined ; and their evidence is taken down in
wTiting. These "depositions" of the witnesses (for both
prisoner and Crown) are signed by them and also by the
justice*. Whether the defendant calls witnesses or not, the
prosecutor's advocate has no further speech.
The justice (or, if there be more than one, the majority)
must then determine (1) whether or not there is a strong
enough case to justify committing the accused for trial*;
and (2) if so, where that trial is to be. If the offence is one
which Quarter Sessions are competent to try^ the case must
1 11 and 12 Vict. c. 42, s. 18. It is only against the prisoner that this
statement is evidence ; and therefore it is for the Crown to determine
whether or not to put it in at the trial. But the ordinary course is to put it
in; and it is prudent to do so, for it may prove to be important to the
Crown as contradicting evidence given for the prisoner. " What the prisoner
said before the magistrates is not evidence unless the prosecutor choose to
make it so ; but if he does, it then becomes evidence for the priFoner as well
as against him, i.e., all parts of it" ; per Park, J., in Rex v. Iliggins, 3 C.
and P. 603.
2 30 and 31 Vict. c. 35, s. 3. ^ n and 12 Vict. c. 42, s. 18.
■• In prosecutions for libel (other than those against jiewspapera, i-l and
45 Vict. c. 60, s. 4) the defendant cannot, at this preliminary inquiry, raise
the defence of the truth of the libellous matter, either by his own witnesses,
or even by cross-examination. Reg. v. Townsend, 4 F. and F. 1089. See
also Reg. v. Garden, L. R. 5 Q. B. D. 1.
5 30 and 31 Vict. c. 35, s. 3.
« If they think the charge not merely groundless but malicious, the Costa
Act, 1908, empowers them to make the prosecutor pay costs.
1 Supra, p. 425.
xxx] Bail 449
be sent thither, unless there are special reasons for preferring
a trial at the Assizes^ Again, (3) if the accused ask to be
released on baiP the court must determine whether this is to
be allowed, and, if it be, on what terms. In cases of treason,
however, bail cannot be granted by the justices, but only by
a Secretary of State or a judge of the King's Bench Division.
But in cases of felony the matter is in the justices' discretion.
In misdemeanors they had not, at common law, even a dis-
cretion (when once the preliminary examination was over),
but were bound ^ to release the accused on his finding
adequate baill But, by statute', they obtained a discretion
in those grave misdemeanors for which the costs of prosecu-
tion may be charged on the county. As the Act of 1908
{infra, p. 487) renders all misdemeanors so chargeable^ the
discretion seems now to be equally universaF.
The Bill of Rights forbids the requiring of "excessive"
bail; but the justices must use their own judgment as to
what sum is adequate without being excessive. Here, as also
in exercising their discretion about admitting to bail at all,
they have simply to consider what likelihood there is of the
defendant's failing to appear for trial. That likelihood will
be affected by (1) the gravity of the charge^; (2) the cogency
1 Assizes Relief Act, 1889, (52 and 53 Vict. c. 12).
2 This word means properly (1) the contract whereby the man is " bailed "
(i.e., delivered) to his surety, but is also applied to (2) that surety himself.
Either the justice or the surety may be spoken of as "bailing" the man.
Such sureties were vividly described in the thirteenth century as "a living
prison" (Pollock and Maitland, ii. 583—587). Even now-a-days the surety,
if he should desire to discharge himself, is allowed to arrest the defendant
(and even to break into his house for the purpose) that he may give him back
again into the custody of the court by which he was bailed; (1 Chitty,
Cr. Law, 104; L. R. [1900] 1 Ch. 41).
3 As any King's Bench judge still is I 4 T. L. R. 757.
* Supra, p. 96. '^ 11 and 12 Vict. c. 42, s. 23.
8 Except merely quasi-criminal ones as to roads and bridges.
^ By C. J. A. Act, 1914, s. 23, justices who do not grant bail to a mis-
demeanant must tell him of his right to apply to the K. B. D.
8 Bail has occasionally been allowed even on charges of murder; as where
the circumstances pointed to a verdict of justifiable homicide.
K. 29
450 Dejyositlons [ch.
of the evidence; (3) the wealth of the offender (which renders
him more willing to bear the forfeiture of bail and also less
willing to bear the disgrace of a conviction); (4) whether the
proposed sureties are independent or are likely to have been
indemnified by the accused'; and (5) the probability of the
accused tampering with the Crown's witnesses, if he be at
larger But experience shews that, on the whole, very few
persons admitted to bail fail to appear for trial — only about
one in every thousands Hence of recent years the judges
have urged* magistrates to grant bail very readily; and
whenever the offence is a small one, and the day of trial
is distant, to accept the recognizances of the accused himself
without any sureties.
It will further be the duty of the justices to transmit to
the court where the trial is to take place the depositions of
the witnesses and the prisoner's statement ; of which we
have already spoken*. The depositions are important for
several purposes, (a) They enable the opposite party to
check the evidence given at the trial, and to cross-examine
or contradict a witness whose evidence there varies from that
' Eeg. V. Butler, 14 Cox 530. All arrangements, between a person bailed
and his sureties, that if he abscond he shall indemnify them for the bail
forfeited, are so contrary to public policy that they are void as agreements
(Anson on Contract, ch. v. 1. ii. ; Herman v. Jeuchner, L. R. 15 Q. B. D.
561 ; Lound v. Grimwade, L. R. 39 Oh. D. 605) ; and moreover are indictable
as conspiracies to pervert the course of justice, even though no intention to
pervert it be proved or alleged (Rex v. Porter, L. R. [1910] 1 K. B. 369).
2 Hence bail is less readily granted during a preliminary inquiry, when
the depositions have not yet been completed, than after its conclusion.
During the preliminary inquiry a magistrate has power to remand the
accused in custody for a period not exceeding eight days, by warrant, and
for three days, by a verbal order (11 and 12 Vict. c. 42, s. 21).
3 About one person in every five committed is admitted to bail; and yet
there is only one failure to about every four thousand committals.
■• The need of such injunctions is vividly shown by the fact that in the
statistical year 1909, no fewer than 1324 persons who had been sent to prison
to await trial were ultimately acquitted; (but perhaps not iJinocent).
' Moreover, committing justices may now, by 3 Edw. VII. c. 38 {infra,
p. 513), provide legal aid, at the public cost, for any poor prisoner whose
defence is so complex that he needs legal aid.
xxx] Depositions 451
which he gave at the commitment. (6) They form a sub-
stitute^ for the witness in the event of his being, at the time
of the trial, either dead or too ill to traveP or to give
evidence*. But his absence abroad does not suffice to render
them admissible*, (c) They assist the draftsman who has to
frame the indictment, {d) They enable the judge to learn
the difficulties of the case before he charges the grand jury.
And (e) they inform the defendant as to the precise case
which he has to meet'. To him this is obviously an ad-
vantage; and it is often an advantage to the public, for if
the case thus disclosed be a strong one, the defendant is
the more likely to plead guilty. It is, however, to be re-
gretted that our law does not take some measures for securing
a reciprocal disclosure of the intended defence". At present
it is too easy for him to raise at the trial some speculative
defence, which there is then no opportunity of contradicting,
and to support it by witnesses about whom it is too late to
make inquiries. The facility has become greater now that
the prisoner himself is allowed to come forward as a witness.
The committing justice will conclude the inquiry by
binding over (1) the necessary witnesses to appear at the
^ Being a legally-required official record they are the "best evidence"
{supra, p. 359) of what passed at the committal ; and cannot be altered by
oral evidence. Indeed oral evidence is probably not admissible even merely
to supplement their omissions, when they are used as "substantive evidence,"
(i.e., as a substitute for an absent witness), though it is when they are used
to contradict a witness who does appear (Koscoe's Criminal Evidence, p. 58).
" 11 and 12 Vict. c. 42, s. 17. » Reg. v. Wicker, 18 Jur. 252.
* Except by consent, in cases of misdemeanor ; supra, p. 342 ; cf. p. 408.
^ Hence he has a statutory right to purchase copies of them at l^d. per
ninety words (11 and 12 Vict. c. 42, s. 27). But the witness has no such
right ; and indeed ought not to be supplied with a copy.
As was said by Jessel, M.R., in Benbovr v. Low (L. R. 16 Ch. D, 95) : —
•'If you give one party the opportunity of knowing the particulars of the
evidence that is to be brought against him, you give a rogue an enormous
advantage." Hence in civil proceedings, though the defendant is entitled to
know the nature of the claim against him, he is not entitled to know by
what evidence it will be supported ; (Rules of the Supreme Court, Order 19,
rule 4 ; Mairiott v. Chamberlain, L. R. 17 Q. B. D. 154).
29—2
452 Recognizances [ch. xxx
trial and (2) some person (usually a police constable) to
prosecute, i.e., to prefer a bill of indictment before the grand
jury. He may commit to prison anyone who refuses to be
thus bound over to give evidence or to prosecuted Witnesses
and prosecutors are only bound over in their own recog-
nizances ; though defendants, as we have seen, are usually
required to find one or two sureties also. "A recognizance,"
says Blackstonc', " is an obligation of record, which a man
enters into before some court of record, or magistrate duly
authorised, with condition to do some particular act, as, to
keep the peace." Although the magistrate's court is not
a court of record, yet its records are, in this respect, on the
same footing as those of the higher courts I It is a contract
not by parol nor by deed, but of record^ ; since the record of
the court is conclusive evidence as to its existence and terms,
and indeed is the only evidence of them. For the party
bound does not sign anything ; he merely assents orally to
the court's oral question. His assent consists in an admission
of his owing to the Cro^vn some specified sum of money to
be payable unless a specified condition be fulfilled ; e.g., unless
he (or, unless the defendant) appear at the next Assizes.
Unlike other contracts (which have to be sued upon) recog-
nizances admit of direct enforcement. For, if the condition
be not fulfilled, the recognizance may at once be "estreated" ;
i.e., an extract (Norman-French, estrait) shewing the terms of
the obligation is copied from the court's record, and is sent
to the clerk of the peace, who thereupon directs the sheriff to
levy the amount upon the defendant's goods*.
Finally the court may, in fit cases, assign to the accused
a solicitor and a right to a counsel, under the Poor Prisoners'
Defence Act 1903".
1 Bennett v. Watson, 3 Maule and Sel. 1.
* 4 Bl. Comm. 341. ' See Brooke's Abridgement, tit. Recognizance; pi. 8.
* Anson on Contracts, part ii. ch. ii.; Cbitty on Contracts, ch. i. s. 2.
» 3 Geo. IV. c. 46, s. 2. See Reg. v. Smith, 17 Cox 601, as to the
difficulty of effectually binding an infant by recognizances, because of his
incapacity to contract. * Infra, p. 517.
CHAPTER XXXI.
OKDINARY PROCEDURE.
II. From Accusation to Sentence.
4. Prosecution.
The process of commitment by a justice of the peace
which we have described, though in actual practice it is
adopted in almost every instance, is not legally essential'
for bringing an accused person to trial before a jury'^; (except
in the few crimes to which the Vexatious Indictments Act^
applies). All that is usually essential is some mode of
" Prosecution," i.e., of formal accusation. Such an accusation
may be made either (1) by a crown official's Information, or
(2) by a jury's Presentment.
(1) An Information is a written complaint made on
behalf of the Crown by one of its officers and filed in the
King's Bench Division*. Since such a mode of accusation
dispenses with any accusing jury, and with any examination
before a justice of the peace, it is only allowed in cases of
1 Yet very important ; for though, without any preliminary examination,
a prosecutor may (in nearly all cases) place a bill of indictment before a
grand jury, there is no legal machinery by which witnesses can be compelled
to appear before the grand jury to support the accusation, where they have
not been bound over by a committing justice to appear and to give evidence.
2 Thus occasionally when a coroner's inquest has occupied an unusually
protracted time, the magisterial inquiry is omitted ; as in the case of Paine
{The Times, Feb. 25, 1880), who was tried for a remarkable manslaughter
(by plying with intoxicating liquor) without being taken before a magistrate,
the coroner's inquest having lasted five days.
^ Injra, p. 46i. * In lSy9 only three were Hied.
454 Presentment [cii.
misdemeanor^ The Attorney-General has the right, ex officio,
to file informations at his own discretion, but it has become
practically obsolete". The other official Avho can file them is
the Master of the Crown Office ; but he can only do it after
obtaining an express permission from the King's Bench
Division, and such permission is rarely asked for except at
the instance of some private prosecutor. It is never gi-anted
unless the misdemeanor is of a peculiarly pernicious character.
Thus informations are not to be filed for libels unless the
prosecutor has been attacked in some official capacity, or the
attack has been couched in outrageous terms^ Cf. Ex parte
Bowen, 27 T. L. R. 180 (assault by police).
(2) A Fresentment* is a written accusation of crime
presented on oath by a coroner's jury' or a grand jury. If
the accusation has been laid before the grand jury by some
prosecutor, their presentment then obtains also the more
specific name of an Indictment. In modern practice, almost
every case that comes to a petit jury for trial comes on
Indictment. The grand jury consequently plays so prominent
a part in our procedure as to require some explanation of its
history.
That history has usually been considered to date back to
Saxon times; when Ethelred the Unready enacted the Law
of Wantage: "Let a moot be held in every wapentake;
and let the twelve senior thegns go out, and the reeve with
1 But in early days it seems to lj.ave been allowed in treason and felony
also; (Pollock and Maitland, ii. 658).
^ In consequence of the hostility aroused by the great number filed
under the administration of 1828-30, But in 1911 one was filed against
Mylius for libelling the King; {The Times, Feb. 2, 1911).
8 Reg. V, Lahouchere, L. 11. 12 Q. B. D. 320.
* 4 Bl. Comm. 298. The term is also often used in a narrower sense, in
which it is limited to cases where a grand jury speaks from its own personal
knowledge, (e.g., accusing persons who are responsible for the obvious non-
repair of some well-known highway). Such presentments are now-a-days
extremely rare. They are, however, interesting as survivals of the grand
jury's ancient function of initiating accusations. ' Supra, p. 426.
xxxi] Grand Juries 455
them ; and let them swear on a relic that they will accuse no
innocent man nor conceal any guilty one\" But the most
recent authorities'' doubt both the permanence and the
generality of this law ; and consider the consecutive history
of our modern grand juries to go back only as far as A.D. 1166.
In that year Henry II. prescribed, in the Assize of Clarendon,
a very similar procedure ; probably taking it, not from the
Anglo-Saxon precedents, but from the Frankish inquests, as
adopted in Normandy. The ordinance of Henry II. required
twelve knights, or other freemen, of every hundred, and four
men (who would probably be wnfree) of every township, to
send in accusations of murder, robbery, larceny, and harbour-
ing of criminals. In 1176 arson and forgery were added*.
At the present day a grand jury may consist of any
number of persons from twelve to twenty-three, but twelve
must agree upon any presentment*. There is no property
qualification for grand jurors at Assizes or at the Quarter
Sessions of boroughs". But at the Quarter Sessions of
counties a grand juryman must have the same qualification
as is required for petty jurymen at Assizes or Sessions (and
for civil common jurymen) ; viz., he must own a freehold of
the value of £10 a year, or be a leaseholder, for a term
of at least twenty-one years, of lands of the value of
£20 a year, or occupy a house rated at not less than £20
(or in Middlesex, £30)«.
The grand jury was, as we have seen, established in order
to multiply accusations of crime. By a curious inversion its
1 Stubbs' Select Charters, part n. ; Constit. History, i. 611.
2 Pollock and Maitland, i. 121 ; ii. 6i0— 648.
3 Stubbs' Select Charters, part iv. These ordinances came to fix a line
between felonies and mere " trespasses," i.e., misdemeanors ; {supra, p. 98).
* Cf. the similar rule which applies in the court of the Lord High
Steward (st/pra, p. 419) ; and to juries on lunacy inquiries (53 and 54 Vict.
c. 5, s. 97), and at coroners' inquests (50 and 5-1 Vict. c. 71, s. 3). Even on
the petit jury, unanimity was not required until 41 Edw. in. ; (Pollock
and Maitland, ii. 623).
6 45 and 46 Vict. c. 50, s. 188 (1). « Geo. IV. c. 50.
45G Grwid Juries lCH.
present function is that of revising, and thereby diminishing,
such accusations' ; though the old form of oath remains,
viz., " You shall present all matters touching your present
service that may come to your knowledge." The grand jury
hear the witnesses for the prosecution (or so many of them as
they desire). But no counsel are present to conduct the
examination ; or to guard against the possibility of the bill's
being ignored through some misapprehension of law. It is
not usual to allow the grand jury to have the depositions
before them ; and the examination takes place in private,
without a note of it being made beyond the mere name of
each witness examined, and all the grand jurors are under
an oath of secrecy. There is thus little check upon any
untruthful witness. Moreover the grand jury never see
either the defendant or his witnesses. Thus the sole function
of a modern grand jury is to repeat badly what has already
been done well : — to hear in secret, imperfectly, and in the
absence of tlie accused, one side of the case^ after both sides
of it have already been heard fully, in open court, and with
full opportunity of legal aid. A bad tribunal is laboriously
brought together, in order to revise the work of a better one^
' Yet the rejection of an accusation by the grand jury is not equivalent
to an acquittal ; so the same bill may subsequently be presented to another
grand jury. E.g., a case of Rex v. Price where the grand jury at Assizes
found a true bill after a similar one had been ignored by the grand jury at
Quarter Sessions; {The Times, March 1, 1901).
- Of the bilh laid >iefore them, grand juries ignore from two to three per
cent. But the inquiries made iu 1859 by the Lord Chancellor (Lord
Chelmsford) led him to the conclusion that even at the Central Criminal
Cfturt more than half the bills ignored ought to have been tried. See his
speech iu support of his Bill for the aboUtiou of grand juries in London;
(Hansard, March 10, 1859).
3 The lioyal Commission on Delay iu the K. B. Division reported {Times,
December 16, 1913) in favour of the abolition of grand juries, both at assizes
and at sessions.
Those who still defend the retention of the grand jury system rely
chiefly upon the following arguments. (1) That it affords the country gentry
some useful legal experience; and by obtaining their presence adds to the
xxxi]
Indictments 457
The written accusation laid before a grand jury is called
a "bill of indictment \" If, instead of "ignoring" it, they
find it a " true bill," it then becomes an " Indictment." An
indictment is defined by Sir Matthew Hale as " a plain, brief,
and certain narrative of an offence committed^." It consists
of three parts : — (1) the commencement ; (2) the statement ;
(3) the conclusion. (For examples, see p. 518 infra.)
(1) The commencement, after setting out the venue in
the margin, usually continues: — "The jurors for our Lord
the King upon their oath present that...." The venue states
the place of the court's jurisdiction; usually a particular
dignity of the court. (2) That the grand jury, being more independent of
the Crown than a justice (or at any rate a stipendiary magistrate) is, will be
more prompt to dismiss any groundless prosecutions for political offences.
(3) That a more emphatic assurance of innocence is afforded if au accusation
is ignored before anything beyond the accuser's side of the case has been
heard. But the first argument does not apply to Quarter Sessions ; and the
second applies only to cases extremely rare. The third argument rashly
assumes that innocence is more clearly demonstrated by acquittal upon a
secret and imperfect hearing of the prosecution, than by acquittal upon a
perfect hearing of both sides. As Lord Denman said, "If the grand jury
agree with the committing magistrate, they are useless; if they differ from
him, they may defeat justice irreparably, and yet they are not clearing the
character of the accused effectually." De Franqueville pronounces the grand
jury "tout au moins inutile " (i. 357); Sir Henry Maine thought it "secret,
one-sided, irresponsible... an obstruction to justice" (Speeches, pp. 184, 191).
In Scotland no grand jury exists, except in Treason; and there appears to be
no desire for its establishment. A Scottish indictment is (Macdonald's
Criminal Lau\ pp. 274, 282) an accusation by the Lord Advocate or the
Procurator-Fiscal.
1 This is usually drawn on circuits and at the Central Criminal Court
by the Clerk of Assize, or of Arraigns, or by the Clerk of Indictments; at
Quarter Sessions, by the Clerk of the Peace. See forms, infra, p. 518.
- 2 Hale P. C. 169. Yet in charges of treason, conspiracy, or fraud,
indictments are frequently of remarkable length. Thus the indictment in
O'dninell's Cane, in 1844 (5 St. Tr., N.S., 1) was a hundred yards long;
when made into book shape it filled fifty-seven pages, the size of a page of
The Tivies. One indictment for conspiracy to defraud tried at the Central
Criminal Court in 1890 (cxi. 602) contained sixty-nine counts; another in
1912 (cLvn. 218), for inciting Suffragettes, contained fifty-four.
458 Indictments [ch.
county or borough. For, as a general rule, an offence can
only be tried by the court within whose jurisdiction it (or
a part of it') was committed. Thus on an indictment for
sending a libellous letter the venue may be either where it
was posted or where it was received ; and in larceny the
venue may be in any county where the accused has had the
goods in his possession for any moment of time. Moreover,
by statute', the venue may now be laid in any county within
five hundred yards of which, — or on a river constituting the
boundary of which, — the crime was committed.
(2) The Statement constitutes the main body of the
indictment. It consists of one or more clauses, or "counts";
each of which purports to embody a separate accusation.
Each count is, practically, a separate indictment, and may
form the subject of a separate trial. Every count, therefore,
must describe with particularity the offence with which it
charges the accused — specifying the date, circumstances, and
intention — so that he (a) may know what defence to offer,
and (6) may be able to produce it as evidence that the charge
has already been dealt with, should he ever happen to be
prosecuted for the same transaction a second time. Hence
if a count be not detailed enough, but too "general," the
judge may quash it; for "generality of accusation is difficulty
of defence." Thus counts which allege "a corrupt practice
at [a specified] election ^" or the act of "inciting A to commit
a criminal indictable offence," or of " attempting to induce A
to contravene the law of the land^" but do not specify what
the particular practice, or offence, or contravention was, are
too general. And no count may run in the alternative ^
At common law, the degree of precision required in the
statement was curiously minute®. But at the present day
1 7 Geo. IV. c. 61, s. 12. - Ibid. ss. 12, 13.
« Reg. V. Stroulger, L. R. 17 Q. B. D. 382.
♦ C. C. 0. Sess. Pap. xciii. 207. * E.g., not "neglect or expose" a child.
" Thus, in 1829, under a statute which prohibited the stealing of " rams,
xxxi] Their interpretation 459
courts hold, as the late Lord Russell grimly said, that " even
in considering the question of the validity of an indictment,
one must have some regard to the ordinary interpretation of
language^" Accordingly the rule, or supposed rule, of favour-
ing accused persons by construing penal statutes strictly^ is
not applied to indictments. An indictment, like any ordinary
document^ must be so construed ut res magis valeat quam
pereat. Thus, if its words be capable of different meanings, it
must be construed " in that sense in which the party framing
the indictment must have used it if he intended his charge
to be consistent with itself* " ; that is to say, in the sense
most favourable to the prosecutor. And, as in ordinary in-
struments, surplus words may be rejected: utile per inutile
non vitiatur. Should two entire clauses be contradictory, so
that one of them must be rejected as surplusage, it is, as
in deeds, the later one that must be so rejected ^ (not, as
in wills, the earlier).
The circumstances of the offence which it is always
necessary for a count to specify «, include (i) the party
ewea or sheep," one Puddifoot was indicted for stealing a sheep. The
evidence being that he stole an ewe, the conviction was held wrong (1 Moody
247) ; a decision which recalls some of the subtleties of the Eoman legis
actiones which might fail if vines were described as "vites" instead of as
••arbores" — the word used in the Twelve Tables. An equally striking
instance is Rex v. Woolcock, 5 C. and P. 516.
1 Reg. V. Jameson, L. R. [1896] 2 Q. B. at p. 429.
^ Broom's Legal Maxims, p. 550.
^ Anson on Contracts, part rv. ch. ii. s. 1.
* Rex V. Stevens, 5 East, at p. 257.
" Wyatt V. Aland, Salk. 325. Cf. 2 Bl. Comm. 381.
* If however, at the trial, the evidence should vary from the statements
of the indictment as to the mere " name or description of any place, or of
any matter or thing, or of any of the parties, or of the ownership of any
property referred to," the court is now permitted by statute to amend the
indictment, " if it shall consider such variance not material to the merits of
the case, and that the defendant cannot be prejudiced thereby in his defence,
on such merits " (14 and 15 Vict, c, 100, s. 1).
460 Precision of Statement [ch.
indicted; (ii) the party injured; and (iii) the facts and intent
that are necessary ingredients of the offence'.
(i) The party indicted should be described by both
Christian name and surname. Yet if the defendant's name
is unknown, and he refuses to disclose it, he may be indicted
as "a person whose name is unknown, but who was personally
brought before the jurors by the keeper of the prison^"
(ii) Similarly the names of the party injured should be
stated*. But if this be impossible he too may be described
as "a person unknown"; as in the case of the murder of some
stranger found dead.
(iii) The acts, circumstances*, and intent constituting the
offence must be set out with certainty. In some offences the
due degree of legal certainty can only be obtained by employ-
ing some particular technical expressions. Thus the intent
must be described in indictments for any treason by saying
"traitorously"; for any felony, "feloniously"; for murder,
" feloniously and of malice aforethought " ; for burglary,
"feloniously and burglariously"; for robbery, "feloniously
and against the will of the said A"; for piracy, " feloniously
and niratically." Similarly the act must be described in
indictments for murder by saying, " did murder " ; for rape,
" did ravish " ; for larceny, " did steal, take, and carry
3 »
away .
1 Not now the time, unless time be (as in burglary) of the essence of the
offence (14 and 15 Vict. o. 100, s. 24).
2 jiex V. , R. and R. 489.
3 2 Hawkins P. C. c. 25, ss. 71, 72.
♦ Formerly in all indictments for murder or manslaughter, the manner
in which death was caused had to be described with particularity ; but this
now is no longer necessary (24 and 25 Vict. c. 100, s. 6).
« The forms usually employed are still fuller. The indictment in murder
ordinarily runs :— "...feloniously, wilfully, and of his malice aforethought
did kill and murder." In burglary it runs :— "...feloniously and burglariously
did break and enter the dwelling-house. ..with intent feloniously and
burglariously to steal, take and carry away." (bee Archbold's Criminal
Pleading, p. 740, and p. 5'Jl.)
xxxi] Joinder of Counts 461
A count must never be " double " ; that is to say, must
not include two separate offences. Yet the whole of any
single transaction, however complex, may be comprised in
one count ; e.g., when A, B, G and D have set upon E and F
together, and robbed them^ And in early days no indict-
ment could contain more than one count. This simplicity of
statement made inevitable a miscarriage of justice, if the
facts proved at the trial happened to deviate even slightly
from those alleged in the indictment. To avoid this danger,
a plurality of counts was soon allowed, describing the same
crime in many forms, as if there had been so many distinct
occurrences^.
Modem practice indeed permits even entirely different
transactions to be charged in the same indictment, in difierent
counts. But (a) a court may in its discretion quash any
indictment as embarrassing ; e.g., if it includes a larger number
of charges than can be conveniently dealt with at one trial.
And (6), as the forms of procedure at a trial differ according
as it is for a treason or a felony or a misdemeanor, an in-
dictment must not include charges that belong to more than
one of these three grades. Moreover, in the case of felonies,
it is found so undesirable to exercise this right of including
separate transactions in one indictment, that (unless the
separate felonies constitute substantially a single trans-
action^) the court usually directs the prosecutor to elect one
1 Reg. V. Giddins, C. and M. 634. Compare, as to the alternative
possibility of subdividing a transaction into separate counts, Reg. v. Brettell,
C. and M. 609.
2 Thus in Reg. v. Daniel Good (C. C. C. Sess. Pap. xvi. 233), a case of
murder where only the headless trunk of the victim was found, there were
thirty-five counts alleging different modes of death. This, however, was in
1842, before 14 and 15 Vict. c. 100, s. 6 had {supra, p. 460) made it un-
necessary to specify the cause of death.
^ Thus where a man who had wounded nine cows in the same stable at
the same time, was charged with these offences in one indictment, in nine
different counts, the judge refused to interfere; since, as it all was one trans-
action, the prisoner was not embarrassed in his defence. 6 St. Tr. (N. S.) 726.
4G'i Divisible Averments [cii.
count, and proceed upon it alone. But by statute no such
direction is to be given when this plurality of felonies consists
of not more than three larcenies ^ or three embezzlements,
all of which have been committed by the same''^ offender,
against the same prosecutor, within a period, from the first
act to the thii-d, of six months,
(3) Indictments usually terminate with a clause tochnically
known as the " conclusion." In common-law offences this
consists of the words : — " against the peace of our Lord the
King, his crown and dignity." But in statutor}' offences the
further words "against the form of the statute in such
case made and provided, and..." are inserted before the
common-law formula. A conclusion, however, is no longer
essential to the validity of an indictment^.
As a general rule the evidence must of course establish,
and the conviction must be for, the actual offence stated in
the count which it concerns^ But (1) evenb}?- common law,
" averments are divisible " ; so that if the words in which
a count states an offence involve the statement of some
minor offence, the petty jury can reject part of the aver-
ment and convict of the minor offence alone, though it was
not stated separately'. Thus a statement of murder becomes
a statement of manslaughter if the words " of malice afore-
thought" be omitted'; whilst similarly every statement of
aggravated larceny includes one of simple larceny. And the
legislature has gone still further, in two Avays. For (2) in
some cases it has enabled juries to convict of the crime which
' 24 and 25 Vict. c. 96, bs. 5, 71. " See 8 Cr. App. K. 128.
* 14 and 15 Vict. c. 100, s. 24.
* For the (very limited) powers of amendment which the court possesses,
see p. 459 supra.
' 2 Hale P. C. 191, 192. Provided of course that both offences are of the
same grade ; i.e., both are treasons, or are felonies, or are misdemeanora.
» Rex V. Mackallcy, 9 Coke Hep. 67 b.
xxxij Avermeyits not proved 463
has in fact been proved, although it is not the crime charged
in the indictment. Thus on an indictment for any crime
the jury may convict of an attempt to commit it^ ; and on
one for robbery, of an assault with intent to rob^; on one
for embezzlement, of either larceny as a servant or simple
larceny; on one for larceny, of embezzlement or=' of false
pretences ; on one for murder, of concealment of birth* ;
and on one for rape, or any felony under section 4 of the
Criminal Law Amendment Act, 1885^ {e.g., having carnal
knowledge of a girl under thirteen), the jury may instead
convict of an indecent assault, or of procuring connexion by
threats or by false pretences, or of having carnal knowledge
of a girl under sixteen^. (3) Again, the legislature has in
other cases permitted juries to convict of the crime alleged
in an indictment, even though a different (but a graver
one) has been proved by the evidence. Thus, on an indict-
ment for misdemeanor, if the facts given in evidence prove
not only the constituents of the crime alleged, but further
elements which constitute some felony in which it has been
merged, the prisoner may still be convicted of the mis-
demeanor^ notwithstanding its merger; as when a person
is indicted for obtaining goods by false pretences, and the
false pretence proves to have constituted a felonious forgery.
Again, if, on an indictment for obtaining by false pretences,
' 14 anrl ].", Vict. c. 100, s. 9. Yet the crime may be a felony, whilst the
attempt is only a misdemeanor.
2 24ancI25 Vict. 0.96, s. 41.
3 4 and 5 Geo. 5, c. 58, s. 39 (2).
•* 24 and 25 Vict. c. lUO, s. 60. ■' 48 and 49 Vict. c. fi9, s. 9.
' I.e. -where the girl, instead of being under thirteen, is found to be between
thirteen and sixteen. By the Children Act, 1908 (8 Edw. 7 c. 67, s. 12 (4)) on
an indictment of a person over sixteen for the manslaughter of a person
under sixteen who was in his charge, the jury may instead convict of any of
the numerous offences of cruelty set out in the section. Hence any such
indictment will involve several distinct issues.
7 14 and 15 Vict. c. 100, s. 12. Cf. 3 C. and K. 200.
4G4 Vexations Indictments Act [ch.
the defendant is proved to have obtained the property by
means amounting to larceny, he may be convicted as in-
dicted\ A further similar provision is that an accessory
before the fact to any felony may be indicted, tried, con-
victed, and punished as if he were a principal felon^.
Moreover, in all these three groups of substitutions, a
prisoner, on being arraigned, may now plead guilty to the
substitutable offence, instead of to the one charged in the
indictments
At common law any person may prefer a bill of indict-
ment to a grand jury, without even giving notice to the
person accused ; so that the latter may never know anything
of it until the grand }nry have actually found an indictment
against him, and even then know nothing more of the case
he has to meet than the bare outline which the indictment
affords him. In practice, indeed, bills are rarely^ presented
to the grand jury until after a preliminary inquiry before
a justice. But the common-law liberty of indictment makes
it possible for innocent persons to be subjected to great
anxiety and expense by groundless prosecutions instituted
from spite" or in the hope of extorting money. Yet the only
remedy of such a person is the costly and uncertain one of
an action for malicious prosecution^. Hence the legislature
has restricted the power of prosecution in the case of those
crimes which experience shewed to be most frequently made
the subject of false accusations. Restriction is imposed by
the Vexatious Indictments Act, 1859^ in cases of (1) perjury
1 24 and 25 Vict. o. 96, s. 88.
^ 24 and 25 Vict. c. 94, s. 1.
3 4 and 5 Geo. 5, c. 58, s. 39 (1).
•» Except for merely quasi-criuiinal offences as to Highways.
» At Cambridge Assizes in Jan. 1906 a true bill was found against a man
whom two benches had refused to commit. He was acquitted,
« Pollock on Torts, ch. vni.
' 22 and 23 Vict. c. 17. Cf. the Vexatious Actions Act, 1896.
xxxi] Vexatious Indictments Act 465
and subornation of perjury; (2) conspiracy; (3) obtaining
by false pretences; (4) indecent assault; and (5) keeping
a gambling house or a disorderly house. And by subsequent
statutes, in cases of (6) misdemeanors under the Debtors'
Act, 1869^; (7) libel^; (8) misdemeanors under the Crimmal
Law Amendment Act, 1885^; (9) the Merchandise Marks
Act, 1887^ (10) the Prevention of Corruption Act, 1906
(6 Edw. 7 c. 34); (11) the Punishment of Incest Act, 1908
(8 Edw. 7 c. 45); (12) Part II. of the Children Act, 1908
(8 Edw. 7 c. 67). For these no bill is to go to a grand jury
unless either
(i) the prosecution has been directed by a judge'; or by
the Attorney-general or Solicitor-general, or, in the case of
perjury, by some other official having power^ to make such
accusation ;
or (ii) the accused has been committed for trial, in
the ordinary way, by a justice of the peace;
or (iii) the prosecutor has been bound over by a justice
of the peace, in recognizances, to prosecute forthwith. When,
on a preliminary examination for any of the offences we are
now considering, the justice refuses to send the case for
trial, the prosecutor can demand to be thus bound over to
prosecute^ and so still take the case to a grand jury. But he
does it at the risk of being ordered, in case of acquittal, to
pay the costs of the accused and of his witnesses^
» 32 and 33 Yict. o. 62, s. 18.
* 44 and 45 Vict. c. 60, s. 6. But upon any prosecution of the publisher
of a newspa-per for libel, the check is still closer ; for the only way of com-
mencing it is by obtaining the order of a judge (51 and 52 Viot. c. 64, s. 8).
•' 48 and 49 Vict. c. 69, s. 17.
* 50 and 51 Vict. c. 28, s. 13.
* Only one such prosecution has taken place at the Central Criminal
Court in thirty-tive 3-ears.
« By virtue of 14 and 15 Vict. c. 100.
7 22 and 23 Vict. c. 17, s. 2. See Reg. v. Lord Mayor of London, 16 Cox
77. It is noteworthy that in several cases at the Central Criminal Court
juries ultimately have convicted where a justice had thus refused to commit.
8 8 Edw 7 c. 15. s. 6 (C).
K. 30
466 Arraignment [ch.
5. Arraignment.
An indicted defendant (contrast p. 432 ?;. 8) must personally
appear at the bar of the court in order to be " arraigned,"
i.e., called to a reckoning {ad rationem) by hearing the
indictment read, and to plead to it. (The only exception is
that, if the trial be in the King's Bench Division and be
merely for misdemeanor, the defendant may, by leave of the
court, appear by attorney ^) As a general rule, too, the de-
fendant must remain in court during all the proceedings I
But in cases of mere misdemeanors the Court may'* give him
leave of absence so soon as he has pleaded*.
6. Plea arid issue.
When the indictment has been read' to liim he has several
courses open. He may either (1) confess ; or (2) stand mute ;
or (3) take some legal objection to the indictment; or (4)
plead to it.
' Hence corporations, as we have seen {supra, p. 62), since they were
incapable of appearing in person, were originally outside the crimiual law;
and they were first rendered amenable to it by their prosecutions being
removed into the King's Bench Division, as there the practice permitted
appearance by attorney. They now perhaps may so appear at Assizes also
(Rex V. Puck, 28 T. L. B. 197) ; though they still cannot so appear at
Quarter Sessions, for to these courts the ancient statute {3 Edw. I. c. 10)
sanctioning appearance by attorneys does not exteud. liut they may appear
by attorney before Petty Sessions, as s. 49 of the Summary Jurisdiction Act,
1079, expressly includes bodies corporate. In the case of a joint stock
company, service of the summons must be made — not with the freedom
usually allowed by the Summary Jurisdiction Acts, but — at the registered
office of the company, under s. 62 of the Companies Act, 1862 (2j and 20
Vict. c. 72) ; Pearks v. Richardson, L. R. [1902] 1 K. B. 91.
- Reg. V. St George, 9 C. and P. 483.
^ Eighth Report of the Criminal Law Commissioners, p. 143.
* Thus the Tichborne claimant was absent on a few of the 188 days of
his trial for perjury.
* In misdemeanors, he is entitled by common law to buy a copy of the
indictment; and in treasons, by statute (7 and 8 Wm. III. c. 3, s. 1). But
in felonies, his strict right is only to have it read over to him; Reg.
V. Doicling, 3 Cox o09.
xxxi] Standhig Mute 467
(1) If he confesses, i.e., "pleads guilty^" he may be at
once sentenced. But in serious cases, lest he should be con-
fessing under some misapprehension as to the law or even
the facts of his case, the court usually advises him to
withdraw his plea of guilty, and so let the matter be fully
investigated^ As to substitutable offences, see p. 464.
(2) If he "stands mute," i.e., says nothing at all, a jury
must be impanelled to try whether he is thus mute "of
mahce," or " by the visitation of God," In the latter case,
the question will arise whether or not he can be made to
understand by signs. But if he is mute merely from malice,
a plea of not guilty will at once be entered ^ In treason
and misdemeanor, standing mute used at common law to
amount, on the other hand, to a confession of guilt. But in
felony the matter was less simple. It was preferred to try
him; yet he could not be tried without his own consent.
To extort that consent he was (until 12 Geo. III. c. 20) sub-
jected to the peine forte et dure, by being laid under a heavy
mass of iron, and deprived almost entirely of food. Many
prisoners deliberately preferred to die under this torture
rather than be tried ; because, by dying unconvicted, they
saved their families from that forfeiture of property which
a conviction would have brought about*.
(3) He may shew that the indictment is, on the face of
it, open to some legal objection; e.g., that a count is too
general in its language, or that the court has no jurisdiction
to try the offence*. Legal objections may be raised by
1 Very nearly half of the prisoners indicted at Assizes or Quarter
Sessions plead guilty {Judicial Cnrninal Statistics : issue of 1900, p. 45).
* In the remarkable case, however, of Constance Kent, who pleaded
guilty in 1865 to the Road murder of 1860, Willes, J., at once pronounced
sentence of death [The Tivies, July 22, 1865).
2 7 and 8 Geo. IV. c. 28, s. 2. For a modern instance of a verdict of
mute of malice, see C. C. C. Sess. Pap. CLVin. 46; Nov. 1912.
* The memorable John Gerbage (supra, p. 265) thus avoided forfeiture
(Y. B. 21 Edw. in. 23J. » Hex v. Bainton, 2 Strange 1088.
30—2
468 Pleas in Bar [ch.
a demurrer, or (wliich for technical reasons is the far more
common course) by a motion to quash the indictment.
(4) He may put in a "plea" to the indictment. The
most important pleas are : —
i. A plea to the Jurisdiction. This plea is rarely made.
For an objection to the jurisdiction of the particular court,
(as when a man is indicted at the Quarter Sessions for
perjury), being a legal objection, may also be raised in the
manner just now explained. And if the offence is one over
which no English court at all has jurisdiction {e.g., an offence
committed on board a foreign ship on the high seas), this
defence can clearly be raised not only as a legal objection
but even under " Not guilty ^"
ii. A plea in Abatement ; i.e., an objection alleging some
fact which shews that there is in the indictment some error
of form, as when a peer is arraigned before Assizes or
Quarter Sessions. Such pleas, however, have been rendered
obsolete by the powers now given to the courts to amend
indictments^
iii. A general plea in Bar. A plea in bar means a sub-
stantial defence ; and a general plea in bar raises the "general
issue," and traverses {i.e., denies) the whole indictment, by
alleging that the defendant is " Not guilty."
iv. A special plea in Bar ^ These are extremely rare, as
almost any matter of defence can be raised under "Not
Guilty." The only ones which require any notice are: —
(a) That of Justification, in cases of libel ; where the
' Rex V. Johnson, 6 East 583. Cf. Re;), v. Jameson, L. R. [1896] 2 Q. B.
425. = 7 Geo. IV. c. 61, s. 19 ; 14 and 15 Vict. c. 100, s. 24.
" To any special plea the Crown may put in either a " demurrer " on
piouuds of law, or a " special replication " on grounds of fact, e.fi., to a plea
of "autrefois acquit" the Crown may reply " not acquit of arson but only of
murder by arson"; (Reg. v. Serne, C. C. C. Sess. Tap. cvii. 418; supra,
p. 136).
xxxi] Autrefois acquit 469
defendant pleads, under Lord Campbell's ActS that the
matter charged as libellous is true, and that it was for the
public benefit that it should be published. But on this plea
costs may be given against the defendant if he fails to
establish it. Along with this defence he may (contrary to
the general rule)* plead at the same time " Not guilty."
(/3) A Pardon from the Crown.
(7) Autrefois acquit; and (S) Autrefois convict. The
general principle of common law is Nemo debet his vexari
— a man must not be put twice in peril for the same offence.
Hence, if he be indicted again, he can plead as a complete
defence his former acquittal or conviction ^ Even though it
were in a foreign country that the acquittal or conviction
took place, it will none the less constitute a defence in our
courts*. To determine in any particular case whether such
a plea is available, it is necessary to ask: — (1) Was the
prisoner " in jeopardy " on the first indictment ? (2) Was
there a final verdict ? (3) Was the previous charge sub-
stantially the same as the present one ?
(1) A prisoner cannot have been in jeopardy "^ if the
indictment was legally invalid; for no conviction upon it
would have been effectual ^ If therefore he defeats it by
some plea to the jurisdiction, {e.g., where he has been in-
1 6 and 7 Vict. c. 96 ; supra, p. 311. Such a plea may shew vividly how
peculiar to prisouers is the privilege of tendei'ing evidence of good character
[supra, p. 390). If A, being indicted for libellously accusing B of theft,
should plead the truth of the accusation, B (being not a prisoner but
a prosecutor) cannot call evidence of his own good character to disprove its
truth ; though he could do so, if he were indicted for the theft.
2 Reg. v. Strahan, 7 Cox 85.
5* And a similar plea is allowed by statute (42 and 43 Vict. c. 49, s. 27)
in cases where an indictable offence has been dealt with summarily, (the
ordinary forms of plea being confiued to acquittal or conviction by a jury).
As to assaults, see also 24 and 25 Vict. c. 100, s. 44.
* Bex V. Roche, 1 Leach 134, (acquittal by Dutch court) ; Rex v. Hutchin-
non, 3 Mod. 194, (acquittal by Portuguese court).
» Reg. v. Salvi, 10 Cox 481. 5 4 Coke Eep. 44, 4o.
470 Autrefois acquit [cu.
dieted in the wrong county), or by getting it quashed, he
will still remain liable to be again indicted on the same
charge.
(2) It is necessary that a final verdict should actually
have been given. If the petit jury were discharged without
a verdict (e.g., on account of their being unable to agree),
this will no more prevent a second trial than would the
fact of a former bill's having been ignored by the grand
jury.
(3) To determine whether the two charges are " sub-
stantially*" identical is often a subtle problem. They are
sufficiently nearly identical, if e\'idence of the facts alleged
in the second indictment would legally have sufficed to
procure some conviction on the first indictment-; whether
it were a conviction for the offence actually charged in that
first indictment, or even for some other, either of an equal'
or of a lower* degree of heinousness. Hence the two indict-
ments must refer to the same transaction*. Yet the intent
or the circumstances alleged in the one may be more aggra-
vated than those alleged in the other. Thus an acquittal
(or similarly a conviction) for a common assault bars a sub-
sequent indictment for an assault with intent to murder, or
even for an unlawful wounding* ; and an acquittal for man-
1 Rex V. Emden, 9 East 437. ^ ^g^ v. Clark, 1 B. and B. 473.
^ E.g., a conviction for larceny as a servant, on an indictment for
embezzlement.
•* E.g., a conviction for manslaughter, on an indictment for murder.
* They may do this even though they have stated some of the immaterial
circumstances in contradictory ways. Thus if A has been indicted for
murdering B on Monday in one parish, and has been acquitted, he can
plead autrefois acquit if he be subsequently indicted for murdering him on
Tuesday in the adjoining parish, provided he can shew by evidence that,
though the averments thus differ, the two charges relate to the same
transaction.
' See Reg. v. Grimwood, 60 J. P. 809, where a man was indicted at the
Hastings Quarter Sessions on four counts ; the first three charging the
infliction of grievous bodily harm etc., but the fourth merely a common
xxxi] Trial 471
slaughter bars a subsequent indictment for murder", and
vice versa. But acquittal for wounding with intent to murder
does not bar a subsequent indictment for murder*; and an
acquittal on an indictment for murdering A by burning a
house in which he was asleep, does not bar a subsequent
indictment for the arson of the housed For in each of
these two pairs of charges, the pair are so dissimilar that
proof of such allegations as are made in the second indict-
ment would not necessarily call for some conviction under
the first one^.
In misdemeanors, by a somewhat harsh rule, judgment
on a plea of autrefois acquit or convict is final : so that if
the accused be defeated on it, he cannot proceed to establish
his innocence, but must be sentenced. Yet in felony or
treason he is allowed to ''plead over," i.e., to go on to put
in a further plea of Not guilty.
7. Trial and Verdict.
"Justice," says Lord Bacon, "is sweetest when it is
freshest." Hence, in grave cases, the Habeas Coriaus Act
assault. On the first three counts the jury disagreed, but they convicted
him of the common assault. The Eecorder remitted the prisoner to the
Assizes, to be again tried on the first three counts. At the Assizes, however,
the prisoner pleaded autrefois convict (by the verdict as to the common
assault) ; and was accordingly discharged.
1 2 Hale P. C. 246. Similarly an acquittal for any crime bars a second
indictment for an attempt to commit that crime, now that (by 14 and 15
Vict. c. 100, s. 9) a jury, on an indictment for any completed offence, can
convict of a mere attempt. And, now that (by 24 and 25 Vict. c. 96, s. 72)
a jury may convict of embezzlement upon an indictment for larceny — or
vice versa — an acquittal for either of these felonies bars a subsequent indict-
ment for the other on the same facta.
^ Reg. v. Be Salvi, C. C. C. Sess. Pap. xLvr. 884. For there may be
Murder without either a " wounding " or an "intent to murder."
3 Beg. V. Seme, C. C. C. Sess. Pap. cvii. 418.
* By the same reasoning an acquittal or conviction for burglary with
intent to commit larceny will not bar a subsequent indictment for the
larceny; though, if the first indictment had charged burglary with au actual
larceny, it would be otherwise.
472 Trial hy Jury [ch.
makes definite provision to secure this freshness; by pro-
viding that if any man, who has been committed on a charge
of either treason or felony, be not indicted at the next Assizes
after his commitment, he must be released on bail^ ; and if at
the next subsequent Assizes he be not both indicted and.
tried, he must be discharged altogether.
When a person indicted pleads Not guilty to the accusa-
tion he thereby "joins issue'*" with the Crown. This issue
must be decided by a TriaP. If the accused be a peer, and
the accusation be either of treason or of felony, the trial will,
as we have seen*, take place before the peers of the United
Kinsrdom. But in all other cases the indictment will be
tried per patriam — by a petit jury composed of twelve
representatives of his countrymen*. The history of such
' Unless the witnesses for the Crown cannot appear.
'■^ The student will be on his guard against the current misuse of this
expression, which treats it as meaning to agree with a debater's contention —
the very opposite of its real meaning.
^ Modem practice concedes to every accused person the right to know,
before his trial, what evidence will be given against him. Ilence if any one
who was not produced before the committing justice is to be called as
a witness, full information should be furnished to the accused, both as
to his name and as to the evidence he will give. If this has not been done,
his evidence should not be pressed at the trial if the accused objects ; (per
Hawkins, J., in Reg. v. Harris, C. C. C. Sess. Pap. xcv. 525). The same
principle applies to letters or other documents. Moreover every Crown
witness must be named on the back of the bill presented to the grand
jury that they may, if they like, call him. And every witness so named
must be made to attend at the trial, in order that if the Crown do not call him,
the prisoner may be able to do so. For the prosecuting counsel is not bound
to call all his witnesses (2 C. and K. 520; C. C. C. Sess. Pap. xci. 83, 136;
on. 817), since the evidence of some of them may seem to him to be
irrelevant or even untrustworthy. But should the prisoner elect to call
a Crown witness who has been thus passed over, he thereby makes him
his own witness ; and the Crown can accordingly cross-examine the witness,
and can reply on his evidence {lieg. v. Cassidy, 1 F. and F. 79^
•» Supra, pp. 410—419.
See Pollock and Maitland, i. 117, n. 615; Stubbs' Const. Hist. i. s. 164;
Stephen's Hist. Cr. Law, i. 254. " The most transcendent privilege which any
subject can wish for is, that he caunot be affected in hia property or liberty
xxxi] Histoin) of Juries 473
trials is noteworthy. Originally, accusations made by the
grand jury were tried by ordeal. After the abolition of
ordeals in 1215, every accusation had to be referred back
to the grand jury, sometimes with the addition of some
further colleagues'. In the course of a century, it came
to be the practice for these new jurors alone to undertake
this duty of revision, without the presence of the original
accusers ; and at last the latter were definitely excluded by
a statute of 1352. This produced our present double system
of juries. But both juries proceeded upon common repute,
or upon their personal knowledge; men who knew the cir-
cumstances of the crime being often put on as additional or
"afforcing" jurors. About 1500, however, such persons
■ceased to be added to the jury itself, and instead were
sent to give evidence before it. This differentiation of the
functions of the witness from those of the juror was in-
tensified, two centuries later, by allowing witnesses to be
called expressly on behalf of the prisoner. Documentary
evidence became common before that of witnesses^; and it
seems probable that even the evidence of witnesses was at
first usually received in a written form. At any rate the
or person but by the unanimous consent of twelve of his neighbours and his
equals. This, for a long succession of ages, has secured the just liberties of
this nation"; (3 Bl. Comm. 379). It is true that, as an instrument of
accurate inquiry, the value of the jury may sometimes be small. In matters
of complicated mercantile accounts, or in scientific disputes about a prisoner's
insanity or the results of a poison, trial by a common jury would have little
superiority over trial by Ordeal or by Compurgation, were it not for the
guidance afforded in the judge's summing up. Hence in nearly half the civil
cases in even the King's Bench Division (in those of London and Middlesex
in more) litigants now prefer to dispense with juries. But in criminal
■cases it is not so important that the verdict should be accurate as that
it should be humane; to let some guilty men escape is a less evil than
to punish any innocent man. Consequently, in all criminal accusations that
are of any gravity, the protection afforded by trial by jury is a privilege
worthy of the eulogium pronounced on it by Blackstone.
1 Pollock and Maitland, ir. CIS. - Ihid. ii. 625.
474 Pettij Jurors [ch.
practice of producing the witnesses themselves at the trial,
to give their evidence orally in open court — though well-
established in non-political cases at least as early as
Elizabeth's reign ^ — did not become usual in trials for
treason until the Commonwealth*. Under James I. and
Charles I. the evidence produced to the jury in political
trials usually consisted only of " examinations," i.e., reports
of what had been said by witnesses when interrogated by
royal commissioners, in the absence of the prisoner and in
private — perhaps in prison or even on the rack. Often the
accused himself was thus interrogated; as when Peacham,-
in 1615, was examined "before torture, in torture, between
torture, and after tortureV But from the time of the
Commonwealth onwards the modem course of trial has
prevailed, in political as well as in non-political cases.
To serve as a petty juror in criminal cases (or as a
common juror in civil ones) a man must (1) be over twenty-
one years of age*; and (2) be the owner, in fee or for life, of
lands or tenements worth £10 a year or of long leaseholds
worth £20 a year, or else be the occupier of a house rated at
£20 a year, or if in Middlesex at £30'. In each county the
sheriff returns a "panel"," or list, at every assize, of persons
^ Sir T. Smith's Commonwealth of England.
2 The provision made {supra, p. 275) by 1 Edw. VI. c. 12 to secure the
production of at least two witnesses in open court in all cases of treason was
regarded as having been impliedly repealed soon afterwards by 1 and 2 P.
and M. c. 12.
» Supra, p. 267 ; 2 St. Tr., at p. 871. On the trial of Lord Essex in IGOO
(1 St. Tr. 1333), in which many of these "examinations" were used. Coke,
then Attorney-general, blamed the "overmuch clemency" of Ehzabeth in
having had no witness racked or tortured whilst being examined.
■» If over sixty he may certainly claim exemption, and perhaps is even
disqualitied. As to the Irish rule see Mulcahy v. ]<ei). L. R. 3 H. L. 306.
6 6 Geo. IV. c. 50.
'■ I.e. a strip (Latin, pannus); the word being usually applied to a strip
of wood, but here to one of parchment. In Scottish law, however, the
person accused is himself called a "panel," from the moment of his
appearance.
xxxi] Challenges 475
thus qualified whom he has summoned. There is no fixed
number; but forty-eight is a frequent number at Assizes,
and thirty-six at Sessions'. From this paneP the clerk calls
twelve names, and the prisoner then has the opportunity of
challenging any of these jurors.
Challenges are now almost unknown in England, though
less rare in Ireland^ They may be either to the "array" {i.e.,
the whole panel), where the sheriff has composed it in an
unfair manner, e.g., by choosing men on the ground of their
religion* ; or to the polls {i.e., to individual jurors). An indi-
vidual may be thus challenged either for cause shewn, or
even "peremptorily" {i.e., without shewing cause). A chal-
lenge for cause may be made propter respectum, e.g., to a peer ;
propter affectum, e.g., for being near of kin to the defendant ;
propter defect um, e.g., for infancy or alienage ; propter delictum,
i.e., on the ground of the juror's having been convicted of some
infamous offence, e.g., perjury. These objections may be raised
either by the Crown or by the accused. But a "peremptory "
challenge can be made only by the accused ; and by him only
in cases of treason or felony ^ Hence a misdemeanant can-
not exclude his bitterest enemy without legal proof of the
hostility*. In treason the prisoner is allowed thirty-five
peremptory challenges, and in felony twenty.
1 See in 26 St. Tr. 1243 an instance of so large a panel as IGO.
^ At the Assizes there is also a further panel of "special" jurors, of
greater wealth, (33 & 34 Vict. c. 77); but for criminal cases a jury is never
taken from this list, except in the very rare cases where the indictment haf.
been found in, or removed into, the King's Bench Division.
3 In Frauce and the Uuitcd States they are employed freely. Maitic
Lachaud, that most eloquent defender of prisoners, made it his rule, "I
challenge every man who looks intelligent."
* Ecg. V. O'Doherty, 6 St. Tr. (N. S.), at p. 888.
^ Hence in treason and felony the jurors are sworn separately — to give
the prisoner a full opportunity of challenging each in turn— while in
misdemeanor they were, till 1909, sworn in groups of four.
6 But in misdemeanors the defendant is generally allowed to exercise
the privilege (which the Crown possesses in all criminal trials) of requiring
476 Counsel for the Crown [ch.
The jury are then sworn*. After this has been done, the
accused can no longer raise any objection to the indictment
for defects that arc merely formal". If the case be one of
felony or treason, the indictment is then read over to the
jury; which is called "charging'" them with the inquiry
concerning the prisoner. It is not so read in cases of mis-
demeanor; probably because the defendant is there entitled
to a copy. The indictment is then "opened " ; that is to say,
the counsel for the prosecution addresses the jury; in order to
direct their minds to the main questions in dispute, to tell
them what evidence he proposes to adduce, and to explain its
bearings upon the case*. If the prisoner is not defended by
counsel ', this speech is often waived. Such a waiver affords
a good illustration of the important principle that a prose-
cuting counsel stands in a position quite different from that
of an advocate who represents the person accused or who
represents a plaintiff or defendant in a civil litigation. For
any jurors to " stand by," i.e., not to serve unless a full jury cannot be made
up without them ; {Reg. v. Blakeman, 3 C. and K. 97).
1 The form of oath taken by jurors differs in felony and in misdemeanor
{aiipru, p. 99) in a manner wliich illustrates the quasi-civil character that
originally attached to offences of the latter grade. See this emphasized
vividly by Erskine, 5 T. li. 314.
2 And even when they are raised before this, the court has power to
amend them ; (14 and 15 Vict. c. 100, s. 25).
* Until they had performed this charf,'e, by completing the inquiry, the
common law did not permit them, in these cases of treason or felony, to
depart from the custody of tlie court, however protracted the trial might be.
Hence throughout the most famous of Indian criminal trials, that of
Nuncomar in 1775, (see Macaulay's Essay on Warren Hastings), which lasted
eight days, the jury and at least one of the judges slept in the court-building
itself every night. In misdemeanors, however, there was (and is) no such
necessity. And now by the Juries Detention Act, 1897, (00 and 61 Vict,
c. 18), upon the trial of any person for a felony (other than treason or
murder or treason-felony) the court may, if it see fit, permit the jury to
separate (at any time before they consider tlieir verdict) in the same way as
if the trial were for a misdemeanor.
* A prosecutor wlio employs no counsel is not allowed (as he is in
summary proceedings) to make any such opening speech, or to examine the
witnesses. * Even at the Central Criminal Court, two-lifths arc not.
xxxi] Witnesses 477
this latter advocate has a private duty — that of doing every-
thing that he honourably can to protect the interests of his
client. But the crown counsel is a representative of the
State, "a minister of justice'"; his function is to assist the
jury in arriving at the truth. He should not urge on them
any argument that does not carry weight in his own mind, or
try to shut out any legal evidence that would be important
to the interests of the person accused^ " It is not his duty
to obtain a conviction by all means ; but simply to lay before
the jury the whole of the facts which compose his case, and
to make these perfectly intelligible, and to see that the jury
are instructed with regard to the law and are able to apply
the law to the facts ^."
On concluding his address, the prosecuting counsel calls
his witnesses, one after another; and each is examined in
chief, cross-examined, and re-examined, successively*. Then
comes the turn of the person accused.
(1) If the accused has no' witnesses to call, he may
nevertheless himself give evidence on oath (should he desire
to do so) and be cross-examined upon it. After doing this
(or declining to do it), then
(a) if he have no counsel, he may address the jury in
his own defence ;
(b) if he have counsel, the prosecuting counsel may.,
should there be adequate cause^ make a second speech,
summing up the Crown evidence and commenting on the
1 i F. and F. 499. Cf. Lord Blackburn, C. C. C. Sess. Pap. LXin. 185.
'■' E.g., if the prisoner has written one letter coniessing the crime, and
another retracting this confession, the Crown must not put the former in
evidence without producing the latter also. Similarly, if the victim of an
alleged assault lias been examined by the police-surgeon, this surgeon should
be called by the Crown, even though his evidence negative the assault.
3 Sir J. Holker, Att.-gen. [The Times, Feb. 25, 1880).
* Supra, p. 347. And the prisoner's statement to the committing justice
is read now. ^ Or none but witnesses to Character (s^npra, p. 392).
•* E.g. , if the evidence has proved to be other than was indicated in his
opening speech ; Reg. v. Holchcster, 10 Cox 226.
478 The Summing-up [ch.
prisoner's o-svn evidence^ (if any). Then the counsel for the
accused addresses the jury ^
(2) But if the accused has witnesses, then, so soon as
the Crown witnesses have finished, his counsel' (or he) "opens"
his case. Then his witnesses (including himself, if he desire
to give evidence on oath) are examined, cross-examined, and
re-examined*. His counsel (or he) makes a second speech,
summing up the defence. Finally the prosecuting counsel
makes a speech in reply.
When both cases have thus been fully stated it becomes
the duty of the judge to sum up the case to the jury ; a
security for justice (as Sir Henry Maine has pointed out")
unknown to the tribunals of classical antiquity. For he not
only directs them as to any points of law that are involved in
the case, but also advises® them, less imperatively, as to the
bearing and value of the evidence.
1 Reg. V. Gardner, L. R. [1899] 1 Q. B. 150.
' By a somewhat harsh privilege, the Attorney-general or Solicitor-
general, if present in person, may — in both (a) and (b) — make a final speech
in reply. Otherwise a prisoner, by calling no witnesses, secures the right to
the last word. In Iielaud he never has that right, even tliongh he call no
witnesses. In most of the United States he never has it. In France always.
* Where several prisoners, who are being tried together, take the same
course as to calhng (or not calling) witnesses, their respective counsel
usually make their speeches (not in order of professional seniority but) in
the order in which their several clients' names occur in the indictment;
{Reg. V. Barber, 1 C. and K. 439). Where, again, some prisoners call
witnesses but others do not, the counsel for the latter will have the right to
the last word; and so will not speak until after the Crown counsel has
replied upon the evidence tendered by the other prisoners ; {Reg, v. Bums,
16 Cox 195; of. C.C.C. Sess. Pap. xcvin. 363, ovii. 147, cxi. 602, cxix. 22).
* In the rare cases where the witnesses for the defence introduce new
matter of importance which the prosecution could not have foreseen,
rebutting evidence, to contradict them, may be called even at this late
stage. lieg. v. Frost, t St. Tr. (N. S.) 384 ; Rex v. Stimpson, 2 C. and P. 415.
° Popular Government, p. 91. But in I'rauce the judges were relieved in
1881 of this duty of summing up; as they were thought to exercise it too
exclusively in the interests of the prosecution. "* tiupra, p. 473 n.
xxxi] The Verdict 479
The jury then have to consider their verdict*, and may, if
necessary, retire for this purpose. The jury may, at their
discretion, return either a " special " verdict, i.e., one on the
facts alone '^j or a " general" verdict, pronouncing on both the
facts and the law"*; i.e., "Guilty," or "Not guilty." The
verdict may dispose of the whole indictment in the same
way, or may pronounce the prisoner guilty on some counts
but not on others, or even on one part of a divisible count
but not on the residue. We have- already seen that, in a few
exceptional cases, juries are empowered by modern statutes
to convict of an offence other than that which the evidence
has established*. The first delivery of the verdict is not
final; for the court may direct the jury to reconsider it^
We have said that of all the persons who are indicted
nearly three-sixths plead guilty. We may add that about
1 A verdict must be the utterance of twelve jurors; so that in the petty
jury, as there are but twelve, unanimity is essential. But in any larger jury,
such as a grand jury or a coroner's jury, or a jury on an inquisition of
lunacy — and similarly with the Peers (supra, p. 419) — a mere majority
suffices, if it consist of twelve. In Scotland (the jury there consisting
of as many as fifteen) the verdict of a majority suffices. In India, a High
Court jury is of nine, and the verdict of six suffices if approved by the judge,
whilst m the Sessions courts the verdict of a simple majority suffices, if
approved by the judge. In France, a simple majority suffices.
^ These are rare ; but a modern instance occurs in Reg. v. Dudley,
L.B. 14 Q.B.D. 273 (K. S. C. 61); supra, p. 75.
3 It has sometimes been suggested that the jury are thus "made judges
of the law as well as of the facts." But this is not so ; for it is their duty to
adopt the law as laid down to them by the judge. (See 21 St. Tr. 1039; and,
in U. S. A., 2 Sumner 243, 1 Curtis 48, 15 Sup. Ct. 273.) It is true that
there is now (contrast 6 St. Tr. 967) no legal redress if they violate this
duty; e.g., if they declare a homicide to have been justifiable although
committed under such circumstances as to be in law a murder — or to have
been a murder although by law it was justifiable. But this legal impunity
only shews that their duty of making their verdict accord with the law, is —
like their duty of making it accord with the evidence — not a jural but a
constitutional and an ethical obligation.
^ Supra, p. 462.
' Reg. V. Meany, L. and C. 213.
480 Benefit of Clergy [ch.
two sixths are tried and found guilty, and about one-sixth'
are tried and acquitted.
After conviction, but before judgment, was the usual time
to pray Benefit of Clergy- (though it might have been raised
on arraignment as a special plea). This privilege was so
remarkable that it deserves the student's attention. After
William the Conqueror separated the ecclesiastical from the
secular courts, the clergy began to put forward a claim that
all persons in holy orders should be exempt from secular
jurisdiction in all litigation, civil and criminal. Any clerk
accused of crime was accordingly sent to the bishop's court.
He was tried there before a jury of clerks, by the oaths of
twelve compurgators ; a mode of trial which usually insured
him an acquittal. But even if he were convicted, the court
could not inflict death, but could only degrade him and
imprison him. About 1300, however, a change was made;
by surrendering no accused clerks to the bishop until after
they had undergone conviction in the secular court, and had
thereby forfeited their chattels. And it was also settled that
the clergy had no such " benefit " in civil cases, or in mis-
demeanors, or (soon afterwards) in treason. But, on the
other hand, the benefit was extended to all persons eligible
for ordination, although not actually ordained; i.e., to all
males who could read^ But in 1487 it was enacted that
these mere laymen should have the benefit only once, and
1 It is noted in the Judicial Criminal Statistics, issue of 1902 (p. 11),.
tliat the admission of prisoners as witnesses "has had no appreciable effect"
upon these proportions.
- See Pollock and Maitland i. 424.
8 By a singular coincidence even tlie Arabs of modern Algeria have
recognised learning as a ground of criminal immunity. Abd el Kadr said: —
" More than once I have remitted sentence of death on a criminal from tlie
mere fact of his being a scholar. It requires so long a time in Algeria to
become well instructed, that I had not the courage to destroy in one day the
fruit of years of laborious study." (Churchiiri Life of Abd el Kadr, p. 145.)
xxxi] Judgment 481
should be branded on the thumb to shew that they had once
had it^ Under Henry VIII. benefit of clergy was removed
from "wilful murder of malice aforethought" {supra, p. 124).
Under Elizabeth all surrenders to the bishop, and all distinc-
tions between ordained clerks and laymen, were abolished;
and henceforth every person who obtained the benefit became
liable to be kept in gaol for a year. Under William III. the
benefit was extended to women, and independently of their
being able to read; and under Anne reading was made
unnecessary for men also. On the other hand, successive
statutes took away the benefit from the more heinous
crimes; until in Blackstone's time there were one hundred
and sixty felonies in which it could not be claimed, i.e., which
were really capital. Finally, in 1827, benefit of clergy was
definitely abolished by 7 and 8 Geo. IV. c. 28.
Judgment.
Already, in our successive accounts of the various kinds
of criminal offences, we have mentioned, in connection with
each one, the character of the punishments which the law
prescribes for it. All that now remains, therefore, is to state
some provisions which affect punishment in general. Thus
the Bill of Rights^ provides that " excessive fines ought not to
be imposed, or cruel and unusual punishments inflicted."
Accordingly judges have no power to create new punish-
ments ^
» A book of 1633 (Whimsies, p. 69) says, " If a prisoner, by help of a com-
passionate prompter, hack out his Neck-verse (Psalm li. 1) and be admitted
to his clergy, the jailors have a cold iron in store if his purse be hot ; but, if
not, a hot iron, that his fist may cry Fiz." ^ \^. and M. st. 2, c. 2.
* Thus, where a defendant was sentenced to be imprisoned, and also to
ask the prosecutor's pardon and advertise the fact in certain newspapers,
this was held bad, except as to the imprisonment; (1 Wilson 832).
K. 31
482
Penal Servitude [ch.
The forms of punishment now permitted by law are
death, penal servitude, imprisonment (with or without hard
labour), whipping, fine; and, in the case of juvenile offender^
detention (in reformatories etc.).
The penalty of Death» is now practically restricted to-
cases of murder". The average annual number of capital
sentences is a little under thirty, and only about half of
these are actually carried out I
Penal servitude was established in 1853 to take the
place of transportation^ It is never imposed for less than
three years"; whilst, on the other hand, the usual maximum
for which a person can be sentenced to imprisonment with
hard labour — or to any form of imprisonment for a statutory*
offence— is only two yearsl The number of sentences of
' Persons under sixteen cannot now be sentenced to death ; see p. 484,
n. 3, infra. No one under eighteen is ever actually executed.
2 There are, however, three other capital offences : viz., treason and
certain forms of piracy and arson [supra, pp. 163, 275, 317). But although
since 1820 eighteen persons have been convicted of treason, the death
sentence has in every case been commuted.
3 Executions are usually deferred until after the third Sunday after the
passing of tlie sentence; and take place at eight in the morning, and not on
a Sunday or a Monday.
•» Transportation had been originally established by the device, which in
1665 Kelyng (fo. 45) treats as still novel, of giving pardons conditional on
the convict's remaining in a colony for seven years, and passing five of them
in service. At the end of that service he received a grant of land.
» 54 and 55 Vict. c. 69. Until this statute the minimum was five years.
" Where it is by the common law that a punishment is prescribed, there is
no maximum limit to the period of imprisonment ; but hard labour can only
be imposed by statute.
7 Practically speaking, a sentence of two years' imprisonment with hard
labour is fully as severe as one of three years' penal servitude. For a convict
in penal servitude is only .kept in separate confinement for part of his first
year alone ; and spends all the remainder of his term in associated labour.
Moreover his dietary is more liberal than in most of an imprisonment, and
his labour less continuously severe, aud more often in the open air. But
his privilege of earning by good conduct (as fourteen convicts in fifteen do)
a ticket of leave, releasing him after serving about three-fourths of his term,
has been extended to persons undergoing long imprisonment.
xxxi] Imprisonment 483
penal servitude passed in 1913 was 829 ; or about one to
every twelve of convictions upon indictment.
An offender who, after having once been convicted of any
felony, is again convicted of some felony, may, as a rule, be
sentenced to penal servitude for life^ But a misdemeanant's
legal maximum of punishment (except by special statute) is
not thus affected by his former offence.
At common law, Imprisonment involved simply the de-
privation of liberty; but now it may take several forms:
(a) A nominal obligation to perform (not only work, but)
hard 2 labour may be added to it. Such imprisonment was
first authorised in 1776. (yS) Ordinary punishment, without
this hard labour, is now known technically as that imposed
upon "offenders of the Third Division." (7) Below this is
that of " offenders of the Second Division " — a new class
introduced by the Prisons Act, 1898=*; who enjoy easier
discipline, e.g.. as to letters and visits. Persons imprisoned
in default of finding sureties must be placed in this class.
(S) A still lighter form of imprisonment is that of the
" offenders of the First Division " ; (who correspond to those
who before 1898 Avere called "first class misdemeanants").
These do not wear prison dress, and in fact incur little incon-
venience beyond the mere detention. All persons imprisoned
for sedition*, for criminal contempt of court ^ or for offences
against^ the Vaccination Acts, must be placed in this division.
1 But if this second felony be simple larceny, only to ten years' penal
servitude. All "life" sentences are reconsidered after twenty years. As to
"Preventive Detention" after penal servitude, see p. 509 ivfra.
2 Not really "hard," now, after first month. So the C. J. A. Act, 1914,
s. 16 (1), now allows it for all offences, even common-law ones; though
forbidding it for mere non-payment of fines. Cf. p. 311 supra.
3 61 and 02 Vict. c. 41. In order to keep those prisoners that are not
of criminal habits out of all contact with the hardened offenders. Infra,
p. 484, n. 1. It is useful in cases like default of fine, drunkenness, petty
assaults. * 40 and 41 Vict. c. 21, s. 40,
6 CI and 62 Vict. c. 49, s. 5. ^ Ihid. s. 41.
31—2
484 Whij^ping [ch.
These are the only forms of criminal imprisonments If no
division is specified by the judge, a prisoner is put into the
third. There exists also an even more lenient form which is
used in cases of civil debt.
Below imprisonment is "Detention under penal discipline"
as "inmate" (not "prisoner") of a Borstal Institution's
Offenders under sixteen may be sent to " Custody in a
Place^ of Detention" for a month or less ; or (a) if between
twelve and sixteen years of age, to a Reformatory school for
not less than three, and not more than live years ; and (6) if
under twelve (or under fourteen but of good character), to an
Industrial schools
Whipping (now possible only under statutes) is au-
thorised^ for male offenders, even adults, in the case of
robberies with violence, and also in the case of "incorrigible
^ In 1913, the number of criminal sentences of imprisonment without
option of fine was 61,975 (only about one-ninth being after trial on indict-
ment). The persons received into prison in 1913 (more than half of them
only in default of fine) served : (a) with hard labour, 90, 188 ; (/3) in the third
division, 45,640; (7) in the second division, 1609; (5) in the first division,
31. And 1224 juvenile offenders were sent to reformatories, and 4613 to
industrial schools. Civil-debt prisoners number about 15,000 yearly. At
assizes, great care is taken to send to the second division such offenders as
had never fallen into crime before. But justices of the peace avail them-
selves far too little of this classification,
2 See Note F on p. 526.
* As to "Detention in Police Custody" for four days or less, even of
adults, by a sentence at petty sessions, see p. 432.
* 8 Edw. VII. c. 67, ss. 57 — 106. An Industrial School retains no one
after sixteen ; a Reformatory School, no one after nineteen. For an offender's
maintenance in either, his parent may be ordered to pay. And by s. 99 a
fine or damages or costs incurred by an offender under sixteen may be
exacted, instead, from the parent or guardian if his neglect conduced to the
offence. By ss. 102 — 3, no one wider sixteen can be sentenced to penal
servitude, or to death; no one under fourteen to imjn-isoninent.
' The character of the whipping is regulated by 26 and 27 Vict. c. 44,
8. 1. The whole of it must be inflicted at one time; C. J. A. Act, 1914>
8. 36.
xxxi] Fines 485
rogues \" Boys who are under the age of sixteen may be sen-
tenced to a whipping in a very much wider range of cases,
inchiding various offences against the Larceny Act, 1861, the
Offences against the Person Act, 1861, the Malicious Damage
Act, 1861 ; and boys under fourteen 2, when convicted summarily
of any indictable offence, may be ordered to be whipped,
with or without other punishment.
Fining^ is a punishment rarely resorted to in the higher
criminal courts. It is now employed in only about one per
cent, of the convictions upon indictment, and this only in
cases where the offence involves little or no moral guilt. But
it is inflicted by courts of summary jurisdiction in about
ninety per cent, of their convictions for petty offences.
By the repeal of almost all the statutes which prescribed
for certain offences minimum punishments, English criminal
courts have obtained, in effect, an almost complete power of
remitting punishments — a discretion very rarely intrusted to
judges under the continental codes \
Besides these punitive measures, a court may also make
orders Avhose effect is of a purely preventive character. Thus
with the object of removing the young from criminal sur-
roundings, a court of Petty Sessions may order children
i Supra, p. 323. And of Procurers; 2 and 3 Geo. V. c. 20, ss. 3, 7 (5).
2 42 and 43 Vict. c. 49, s. 10 (1-) ; 8 Edw. VII. c. 67, s. 128 (1). In 1913,
2105 persons were whipped ; only 17 of tliem after an indictment.
3 A fine must be distinguished from the (now vanished) amerce-
ment. An amercement was a pecuniary penalty fixed by the jurors ; but
a fine is fixed by the court. The earliest fines were compositions agreed
upon between the judge and the prisoner, to avoid imprisonment, at a time
when the King's judges had no power to impose pecuniary punishments ;
(Pollock and Maitland, ii. 515).
* The evil effect of minimum punishments in creating in the minds of
juries an exaggerated reluctance to convict is vividly illustrated by the fact
that on the recent abolition of the minimum limit of punishment (ten years'
penal servitude) for unnatural offences, the percentage of trials for such
crimes which ended in convictions rose at once from the remarkably low rate
of 35 to 47. Criminal Judicial Statistics, issue of 1896, p. 26.
486 Costs [CH.
frequenting the company of thieves or found begging, and
destitute children who are orphans or whose parents are
undergoing penal servitude or imprisonment, to be sent to
a certified industrial school till they reach the age of
sixteen*. Another preventive measure is that of Super-
vision of an adult by the police for a fixed period after his
punishment; for whenever a prisoner is convicted of felony,
or of one of certain gi-ave misdemeanors, after having been
previously convicted of a crime of equal degree'', the judge
may direct that, after completing his sentence, he shall be
subject to supervision for a specified period. Again, even
a person who has not actually committed any offence at all
may be required to find sureties for good behaviour, or to
keep the peace, if there be reasonable grounds to fear that he
may commit some offence, or may incite others to do so, or
may act in some manner which would naturally tend to
induce other people (against his desire) to commit one'.
• After the judgment itself has been given there are
further Orders which the judge may have cause to make.
(a) Of one such we have already spoken* — the order
which, after any trial for theft, the court may make for
Restitution, to the true owner, of stolen property which
has been identified at the trial.
(b) Another, of much more frequent application, may
be made iu respect of Costs. In criminal law costs do not
" follow the event." The common law knew nothing of
1 The Industrial Schools Act (29 and 30 Vict. c. 118), s. 14.
2 rrevention of Crimes Act, 1879 (42 and 43 Viet. c. 55J, s. 8. And at
the opposite extreme, an offender who deserves no actual punishment may
be supervised; but by a "Probation Officer": see infra, p. 512 n.
* E.g., a controversial lecturer, whose open-air addresses are such that
a breach of the peace will naturally result, may be required to find sureties.
Wise V. Dunning, L. R. [l'J02] 1 K. B. 167. lint see p. 282, supra, as to the
subtlety of the distinction to be drawn between this case and that of Beatty
V. Gillbanks, L. l\. 9 Q. B. D. 308. « Supra, p. 224.
xxxi] Pi'isoners' costs 487
costs. And the statutes which introduced them^ did not
mention the Crown ; — an omission which Blackstone elevates
into rules that it is the prerogative of the Crown not to pay
costs, and that it would be beneath its dignity to receive
them I Hence as all criminal proceedings are technically
at the suit of the Crown, no judgment for costs could be
given in them. Even if the prosecution were in fact brought
by a private individual, the law did not reimburse him for
the outlay he had incurred in discharging this public duty.
But criminal courts are now empowered — the latest and
most comprehensive statute being the Costs in Criminal
Cases Act, 1908' — to order the reasonable costs both of the
prosecution and of the defence, or of either of them, to be
repaid out of the funds of the county, in the case of any
indictable offence. (The merely quasi-criminal offence of
obstructing a road or river is excepted.) The power is given,
not only to assizes and quarter sessions, but also to justices
of the peace when dealing summarily (supra, p. 435) with an
indictable offence, or when holding (supra, p. 446) a pre-
liminary examination about one^ But the defence, unlike the
prosecution, will apparently not be allowed the cost of solicitor
and counsel, except where these have been certified for under
the Poor Prisoners' Defence Act (infra, p. 517). And neither
side, usually, will receive an allowance for witnesses who
speak only to character. The costs allowed to a prosecutor
have hitherto averaged about £10 ; but see p. 95 n.
Besides these orders upon public funds, orders for costs
may now also be made upon individuals concerned in the
' The earliest was the statute of Gloucester, 6 Edw. I. c. 1.
2 III. 400; cf. Eex v. Abp of Canterbury, L. R. [1902] 2 K. B. 503.
s 8 Edw. 7 c. 15, s. 1. The scale of costs allowed to witnesses is fixed by
the Home Secretary. The present scale (that settled in 1903) is unfortunately,
lower than the scales authorised in civil courts, although the importance
to the community of the due attendance of witnesses is certainly greater in
criminal ones. * See Lex v. Dcpree, Times, March 4, 1909; (bill ignored).
488 Co7n2)ensation [ch.
criminal proceedings. For (s. 6) .any court that convicts a
person of an indictable olifencc may now order^ him to pay
the taxed costs of the prosccution\ A similar power has long
existed in case of non-indictable offences (supra, p. 430).
And, on the other hand, there are a few exceptional cases m
which a private prosecutor, if the trial has ended in an
acquittal, may be ordered to pay the taxed costs of the
defence. The principal instances of this are where a per-
sistent accuser has, under the Vexatious Indictments Act*,
been at his own demand bound over to prosecute ; or where
the prosecution is for a defamatory libel* ; or where an
accusation (of any indictable offence) has not only been
dismissed at the preliminary examination by the justices, but
has been pronounced by them to have not been "made in
good faith"."
(c) The common law knew nothing of orders for Damnges
in any criminal proceedings. They are instituted for punitive
and not compensatory purposes. But a great economy of
time and money is effected whenever a single judicial in-
vestigation into any wrongful transaction can be made to
cover all its consequences, reparative as well as penal.
Hence the French code freely permits the appearance, at
criminal trials, of a pariie civile to claim damages against
1 For felonies this had been permitted by the Act of 1870 [supra, p. 95),
before which a conviction for treason or felony caused a forfeiture of the
prisoner's goods. And a sentence of death for treason or felony involved,
as a necessary consequence, an "attainder" (4 Bl. Comm. 374). A person
attainted (nttinctus, "blackened") became dead to civil rights; his lands
were forfeited, and his blood was "corrupted," so that descent could not be
traced through him. These consequences were abolished by the Forfeiture
Act. But an attainder may still be produced by a judgment of outlawry;
though such judgments are, in practice, obsolete. The last was in 1859.
» See C. C. C. Sess. Pap. 151. 210; lo2. 273; 154. 22J; 6 Cr. App. R. 17.
3 30 and 31 Vict. c. 35, s. 2 ; supra, p. 405.
■» 6 and 7 Vict. c. 96, s. 8. » 8 Edw. VII, c. 15.
xxxi] Reversal of Judgment 489
the prisoner*. An experimental, and therefore very limited,
step in this direction was taken by the Forfeiture Act, 1870=^ ;
which in cases of felony empowers the court to order a con-
victed prisoner to pay a sum not exceeding one hundred
pounds, by way of compensation for any loss of property
suffered by any person through the felony. Thus a prisoner
convicted of forging a bill of exchange may be made to
repay to the prosecutor money which he has lost by dis-
counting it. But the clause, it should be noticed, is limited
to losses of property and does not extend to injuries to the
person ^
9. Reversal of Judgment.
Along with the steps which may be taken at this stage
to secure a revision of any supposed error in the judgment
it may be convenient to recall those other modes and occa-
sions of appealing to higher tribunals which we have already
noticed at earlier stages of the ordinary criminal procedure ;
as the student will thus obtain a general view of the subject.
The following are the prisoner's opportunities, at the various
successive stages, of defending himself against errors of law.
I. Before trial.
(a) A motion to quash* the indictment; for insufficiency
apparent" on the face of it. Strictly, if made by the defence,
it should be made before the prisoner pleads. As the court
has a discretion to refuse to quash an indictment, even for
a valid objection, there is no appeal from the refusal ; and
the prisoner, if he wishes to press his objection, must do it
by demurrer, or else wait till after trial.
^ " L'action civile peut etre poursuivie en mSme temps et devaut las
mSmes juges que Taction publique " ; [Code cV Instruction criminelle, art. 3).
2 33 and 3i Vict. c. 23, a. 4.
* For the power to award compensation (a) when dismissing trifling
charges — if in summary proceedings, up to £10 only — see pp. 95, 4b3, 512;
(6) on convicting for malicious injuries to property, see p. 16G.
* Svpra, p. 468. ^ Supra, p. 415.
490 Reversal of Judgment [ch.
{h) A Demurrer'; alleging, similarly, that the indictment
is on the face of it insufficient. The court has no dis-
cretionary power of refusing to hear objections so raised.
The disadvantage of a demurrer is that a defendant who
demurs is regarded by law as having admitted the truth
of the facts set out in the indictment. Hence, if he fails
in his demurrer, sentence must be pronounced upon him,
unless the court allows him to "plead over." .
II. After trial.
(a) A motion in arrest of judgment ; for any objection
that appears on the face of the record, (unless it be merely
formal, for then it ought to have been taken before the jury
were sworn).
(6) An application to the recently-established Court of
Criminal Appeal.
The creation of a general Court of Criminal Appeal^ by
the Criminal Appeal Act of 1907 ^ constituted a revolution
in the administration of our penal j ustice. Previously (except*
for cases tried in courts of a merely summary jurisdiction)
the general principle had been that— whilst in civil cases any
miscarriage of justice could be reviewed at the instance of
either litigant — in criminal cases no appeal was allowed to
either party upon any question of fact, whilst even on
questions of law the Crown had little opportunity of appeal
and the prisoner not' an unlimited one. If a jury wrongfully
acquitted a man, the Crown had, as it still has, no redress.
If it wrongfully convicted him, his only resource was to apply
to the Home Secretary lor a pardon— a derogatory form ol
redress for an innocent man. The Act of 1907 does not
enlarge the Crown's opportunities of appeal ; but it greatly
extends those of every prisoner convicted" — after the 18th of
April 1908— upon a trial by jury. (To convictions at petty
I Su'pra, p. 468. ^ Supra, p. 420. » 7 Fvlw. VII. c. 23.
■» Supra, pp. 436-8. "* Si^pra, p. 420.
^ Or pleading guilty. But not, now, if found 'Guilty but insane';
Fehtead v. Director P. P., L. R. [1914] A. C. 634.
xxxi] Reversal of Judgment 491
sessions^ or on trials by the peers of the realm, it does not
apply.) (A) In the rare cases where his offence is the merely
quasi-criminal one of obstructing a highway or public bridge
or navigable river, he has the same full freedom of appeal as
a defendant in a civil action^ (B) And even when the offence
charged is a truly criminal one — as in almost all cases it will
be — he still has^
(1) an absolute right to appeal on any question of
pure law*;
(2) a right, in case of his obtaining leave either from
the judge who tried him or from the Court of Criminal
Appeal itself ^ to appeal on any question of fact, or of mixed
fact and law ;
(3) a right, in case of his obtaining leave from the
Court of Criminal Appeal^ to appeal against the sentence
passed on him; (unless, as in murder, the sentence is one
fixed definitely by the la\v)«.
A prisoner who desires to appeal should — s. 7 (1)— give
notice of his desire within ten days after his conviction ; but
the Court may^ grant him an enlarged time. (Accordingly
— s. 7 (2) — any sentence of death, or even of corporal punish-
ment, is not to be carried out until the ten days, or the
enlarged time, be over; nor until the appeal, if then
instituted, be disposed of.) If the prisoner be poor, the
Court may assign him, at the public expense, a solicitor
and a counsel. Applications for leave to appeal are
usually made in writing; the appellant has no right to
be present. He has, however, a right to be present at the
hearing of the actual appeal, unless it be on a matter of pure
1 Except as to the sentences on "Incorrigible Kogues" {supra, p. 323),
or on " juvenile adults " (p. 432 n.), sent thence to Quarter Sessions.
2 s. 20 (3). ^ s. 3.
4 But the Eegistrar of the Court— s. 15 (2)— may bring before it promptly
any appeal on a purely legal point that seems to him untenable ; and the
Court may deal with it at once, without hearing arguments,
^ A single judge can give the leave, s. 17.
6 No leave is needed as to sentence of "Preventive Detention"; p. 509.
' Except in the case of au offence punishable with death.
492 Reversal of Judgment [ch.
law. At aftnal appeals the Director of Public Prosecutions
must — s. 12 — see that the prosecutor is duly represented.
On every appeal, or application for leave to appeal, the
judge who tried the appellant must — s. 8 — furnish to the
Court his notes of the trial and a report giving his opinion
upon any points arising in the case. (Or, if the appeal
involves only a question of pure law, the Court may require
the judge to "state a case" as in the old practice of the
Court for Crown Cases Reserved; s. 20.) And in view of
the possibility of an appeal, shorthand notes are henceforward
to be taken, at the public expense, of every criminal trial
before a jury (s. 16); thus rendering universal a practice
which, by the sedulous caution of the City of London, has
been in force at the Old Bailey for nearly two centuries.
Moreover the Court, when dealing with the appeal, are
empowered (s. 9) to order the production of documentary or
" real " evidence, and to receive evidence from witnesses
(whether they were called at the trial or not) either in open
court or by depositions for the purpose. (Bat new evidence,
not given at the original trial, is never to be made a ground
for increasing the sentence.) They may also, if necessary,
appoint some expert {e.g. a chemist or a specialist in lunacy)
to act with them as an assessor ; or appoint a special com-
missioner to report to them on any question which involves
such a scientific or local investigation, or such a prolonged
examination of documents or accounts {e.g. in cases of
embezzlement), as cannot conveniently be conducted before
themselves. Provision is made (ss. 12, 13) out of public funds
for all the expenses connected with an appeal, including even
those of the appellant's own attendance.
Frivolous appeals (such as have of late impeded so
greatly the administration of justice in the United States^)
are discouraged by various provisions. There is, as we have
seen, the necessity of obtaining leave to appeal, whenever
the point is not one of mere law. There is also^ — s. 4 (1) —
1 See uote on p. 498 infra. * See p. 342 supra.
XX xi] Reversal of Judgment 493
a provision that, even where the appellant is technically in
the right, his appeal may be dismissed if "no substantial
miscarriage of justice has actually occurred." There is,
further, in the case of appeals that are merely against
the sentence, a power — s. 4 (3) — for the Court to alter that
sentence by increasing, instead of by diminishing it. More-
over although, during the period that intervenes between
the institution of an appeal and the decision of it, the
appellant will escape the treatment of an ordinary prisoner
(being merely detained in a very lenient custody or even
admitted to bail), yet this period will not count — s. 14 (3) —
as any part of the punishment to which he has been sentenced;
consequently any man who appeals on frivolous grounds
postpones thereby the time of his final return to liberty.
But if — s. 4 — a substantial miscarriage of justice has
occurred, (whether from the judge's wrong decision of a
question of law, or from the jury's having returned a verdict
that was unreasonable or incapable of being supported w^hen
regard is had to the evidence, or from any other cause), then
the appeal will be allowed, the conviction quashed, and a
judgment of acquittal entered^- If the conviction were for
theft, the Court can review not only the conviction but
also — s. 6 (2) — any order that may have been made for the
restitution of the property alleged to have been stolen.
If the appellant has not objected to his conviction, but
only to the severity of his sentence, the Court may quash
that sentence, and pass instead "such other sentence (whether
more or less severe) as they think ought to have been
passed "; — s. 4 (3). If, on any appeal, the Court finds that,
though the appellant did commit 'the crime, he did so in
a condition of irresponsible insanity, they may quash the
conviction, and commit him to custody as a criminal lunatic.
The decision pronounced by the Court will usually be
final. But in those rare cases, where a point of law is raised
1 But a New Trial, unfortunately, cannot be ordered ; even though the
prisoner be obviously guilty. See Cr. App. E. i. 15, 143, 213; ii. 126, 245.
494 Meprieve [ch.
which is of such exceptional public importance that the
Attorney-General certifies that it is desirable to have the
highest decision on it, that certificate will enable either
party to take the case from this Com-t directly to the House
of Lords; s. 1 (G). This was done in Rex v. Ball, (supra,
p. 354) ; and in later cases.
The Act leaves untouched the Crown's prerogative of
mercy; and the Home Secretary will thus still be able to
institute inquiries of his own, in which he will not be
limited by the technical rules of evidence. But he may
instead (s. 19) refer to the Court of Criminal Appeal either
the whole case, or any special point in it.
The Act does not extend to Scotland or Ireland.
Experience alone can show whether the benefits which
the Act will unquestionably secure in remedying miscarriages
of justice and (still more) in allaying public alarm as to the
possibilities of such miscarriage, will be attended by either
of two drawbacks which its opponents have predicted — a
multiplication of appeals so numerous^ as to impede the
administration of the law by " a chronic condition of Re-trial,"
and a weakening of that sense of responsibility in the minds
of jurymen which has hitherto been the great safeguard of
accused persons. Countless are the acquittals that have
been secured by the influence of those impressive words —
" Remember that your verdict is final."
10. Meprieve, and Pardon.
The execution of the sentence may be postponed, by a
Respite or Reprieve, or be altogether remitted, by a Pardon.
Reprieves may be granted not only by the Crown but
even by the judge. For, except in cases of murder, a judge
of assize may not only postpone the delivery of his judgment/,
but may even, after delivering it, postpone its execution.
' At present, about six per cent, of the persons convicted on inclictment
try to avail themselves of the Act. But scavcelj one-tenth of these finish
with any deRree of snecuss. In 1913, 157 appeals reached a full hearing; in
7U of these the appellant gained nothing.
XX xi] Pardon 495
And, in the case of capital sentences, it is his imperative
duty thus to respite it ; if the prisoner be proved either to
be insane or to be pregnant. But a Pardon lies of course
beyond all judicial discretion, and can be granted by no
authority below that of the Crown itself^ It may either
be absolute or be subject to some condition^ Pardons may
be granted by the King for all crimes, except two. For
(a) under the Habeas Coi-pus Act the King cannot pardon
the offence of sending a prisoner out of England to evade
the protection of the writ of habeas corpus^; and (6), even
at common law, he cannot pardon a person convicted of a
common nuisance until after the nuisance has been abated ^
for such a pardon might prejudice the rights of the private
persons injured by the nuisance'. Moreover^ upon an im-
peachment by the House of Commons, a pardon by the
Crown cannot be pleaded as a defence so as to prevent the
trial ; though it does save from punishment.
It has often been maintained that a perfect code would
remove all necessity for a power of pardon. " Happy that
nation," says Beccaria, "in which clemency shall come to
be considered dangerous." But long experience has she^vn
that human foresight is incompetent to frame, and human
language to express, a faultless scheme of legislation. The
power of pardon therefore — however theoretically formidable,
as an instrument which, if exerted to the full, would suffice to
overthrow the whole fabric of the criminal law — is one which
is indispensable to the wise administration of penal justice^
1 Anson on the Constitution, ii. 228.
"^ E.g., the pardons which introduced transportation ; supra, p. 482,
3 31 Car. II. c. 2. ^ Supra, p. 15.
* Contrast the converse rule that it is only before any informer has
commenced an action that the Crown can grant a pardon in the case of
conduct forbidden under some penalty recoverable in a civil action by
a common informer.
« By the Act of Settlement (12 and 13 Wm. III. c. 2).
' The power is exercised in about four hundred cases every year ; but
less than one per cent, of these are complete pardons.
496 English Procedure [ch.
The social results.
No reader who has perused with attention even the out-
lines of the English law of criminal procedure and evidence
can have failed to notice how effectually its rules have been
moulded into such a shape as now aifords the amplest prac-
ticable security against the condemnation of any innocent
man. Accused persons find themselves protected by the
humane attitude of the judge ^ and of the prosecuting counsel,
by the freedom conceded to the counsel for the defence*, by
the publicity of the proceedings and the right of reporting
them' to a still wider public, by the stringency of the rules
which prescribe the quantity and the character of the evi-
dence* which the Crown must produce, by the facilities for
securing Avitnesses for the defence at the cost of public funds,
and by the rejection of all convictions from which even a
single juror dissents'*. In the sense of security against mis-
1 See the cordial appreciation of this attitude by M. Cruppi (p. 50), and
M. de Franqueville (n. 389, 477, 687), in the works cited overleaf.
* In France, the right to have the assistance of a lawyer during the
preliminary questioning of the prisoner (for the instruction du proces) was
not conceded until 1898 ; though this questioning may be protracted through-
out many months, or even (as in Prado's Case in 1888) a whole year. And it
is said that even now, the juges d'instruction often evade the law of 1898 by
relegating the examination to police-officials.
8 Pollock on Torts, c. vii. s. 3. " Les journalistes, c'est 14 le vrai et utile
public " ; (De Franqueville, n. 698).
* Even 80 far back as 1722 (as appears from Lord Cowper's speech in
Bishop Atterbury's Case) lawyers had noticed tliat English courts required
a greater " certainty of evidence " to convict men of crime than continental
courts did.
"* An instructive contrast to this picture may be found in the minute
narratives of modern continental trials given by Mr H. B. Irving in his
recent Studies of French Criminals. He maintains that, in spite of the
great legal genius of the French, their administration of penal justice is
imperilled, in one direction, by " absence of true cross-examination, loose
rules of evidence, and almost unavoidably partial judges," and, in the other,
by "undue licence in advocacy, and emotional juries," (p. 126). He
describes modern French practice as requiring the judge's questioning of the
prisoner at the pubUc trial to be " a caustic, dramatic and closely reasoned
xxxi] English Procedure 497
carriages of justice^ thus inspired in the nation at large, we
may find adequate explanation of an anomaly which has often
surprised foreign observers of English institutions. They
have remarked that our criminal courts, the courts which
come most violently into conflict with the interests of the
defendants against whom they adjudicate, are not — as would
seem natural, and as has actually been the case in many
countries — the most unpopular of all our tribunals, but the
least so. Moreover the confidence universally felt, that every
accused person will be tried by a fair method and in a fair
spirit, goes far to facilitate tfie protection of life and property,
presentation of the case for the prosecution, to which the prisoner must
make the best reply he cau," (p. 309); — a vivid contrast to the EngUsh
prisoner's right of utterly refusing to be questioned. This description is
corroborated by M. Cruppi (J^a cour d' Assises, Paris, 1898, p. 133), who says
" Le president, par son inten-ogatoire passionnS, pendant de longues heures,
se fait I'auxiliaire de I'accusation. " And a French jurist of the highest
authority, the Comte de Franqueville, in his elaborate treatise on Le
Systeme judiciaire de la Grande Bretagne (Paris, 1893), " admits that the
French preliminary examination, conducted in private, is far from satis-
factory ; that the form of the acte d' accusation, with its recital of every
unfavourable point in the prisoner's antecedents, prejudices the accused in
the eyes of the jury ; that the interrogation of the prisoner by the presiding
magistrate is often open to criticism ; and that it might be better if counsel
for the defence were allowed to cross-examine witnesses directly, instead of
being confined to suggesting questions for the Court to put." (This summary
of concessions I take from an Essay on this subject, in the Collectanea of the
Hon. Mr Justice P. M. Laurence (p. 226) ; which I strongly commend to the
student's perusal.)
' It is stated by J. D. Lewis [Causes celebres de VAngleterre, p. 10), that,
after a wide study of English criminal trials from the time of James II., he
had not found more than three cases in which any person had been (not
merely sentenced but) actually executed, who had afterwards been proved
quite innocent; viz. the clear cases of Shaw (executed at Edinburgh in 1721
for the supposed murder of a daughter who had in reality committed suicide),
of Jennings (executed at Hull in 1762 for theft, by a mistake of identity), and
the much more doubtful case of Eliza Penning (executed in London in 1815
for a supposed attempt at poisoning). That of the inn-keeper Jonathan
Bradford, (executed in 1736 for the murder of a traveller), though a case of
legal innocence, was one of moral guilt ; as he had entered the traveller's
room to kill him, but found him slain already by his own valet.
498 English Procedure [en. xxxi
by rendering it far easier in England than in many countries
for the police to obtain information and assistance in their
efforts to bring criminals to justice^
The spirit of fairness and humanity which characterizes
English criminal courts is not of recent origin. Recent yeai-s
have, however, done so much to improve the procedure which
this spirit animates, that they have now raised those courts
to a degree of efficiency perhaps greater even than that
attained by some of the tribunals that have inherited to
the fullest the spirit of Anglo-Saxon justice. Sa3^s an ex-
perienced American lawyer^ " I prefer the swift and sure,
yet careful, methods of English criminal jurisprudence to
our own cumbersome, technical, dilatory way of dealing with
criminals^"
• '• Eu Aiigleterre, tout le monde facilite la tacha de la police. En
France, il en est autrement. Nous avous vu un bon bourgeois de Paris
recevant les felicitations du pr6fet de j'olice pour avoir eu le courage de
fouinir aux autorit6s des renseiguements que meme uu portofaix de Londres
se fQt crli desbonore en cacbant. Et puis ce bonhomme de Paris est chass^
de son babitation par le m^pris des voisinsl" (J. D. Lewis, Causes cilchres
de VAnglfterre, p. 351.) Moreover Frencb juries acquit a much larger per-
centaj^e of prisoners than English ones do. (Cr. Jud. St. of 1896, p. 27.)
* Fishback's Recollections of Lord Coleridge, p. 55.
' The frequent recourse to Lynch law iu some of the United States
seeni.s partly to arise from a popular dissatisfaction with the delays and
uncertainties of the forensic administration of justice. In 1886 — 1899 there
was in the United States an annual average of 170 lynchings (95 per cent,
of which were in the Southern States) ; whilst the annual average of
executions by process of law was less than three-quarters of that number.
"When citizens," said Filaiigieri long ago, "see the sword of justice idle,
they snatch a dagger." In August, 19t):}, the President of the United States
(Roosevelt) urged the necessity of "freeing the criminal law from technicality
and delay." In 1909, President Tatt described American criminal procedure
as "a disgrace to our civilisation"; {Times, Sept. 18, 1909). "In no other
country is the deterrent effect of punislimcnt so vitiated by delay, chicanery,
and futile appeals" ; Autobiography of President A. D. White, i. 137; cf. ii.
77, 504. See also Thayer on Evidence, p. 528; Train's Prisoner at the Bar,
pp. 336—8.
CHAPTER XXXII.
THE PROBLEMS OF PUNISHMENT.
The foregoing review of the various modes of punishment
now recognised in English criminal law, may recall our
remark' that neither they, nor the abstract doctrines of
Punishment which have given rise to them, can be regarded
as having attained a final — or even a temporarily stable —
form. Nor can our doctrines as to punishment, and our
present modes of inflicting it, even be said to be in logical
accord with each other. "All theories on the subject of
Punishment," says Sir Henry Maine'*, "have more or less
broken down; and we are at sea as to first principles."
" The question as to the true principles on which penalties
■should be awarded for crime is still an unsolved one," said
a late Lord Chief Justice ^ And a most experienced ofiicial^
1 Supra, p. 36. ■' Speechea, p. 123.
s Lord Russell; (Speech at the annual meeting, in Feb. 1896, of the
Metropolitan Discharged Prisoners' Aid Society). The consequence is that—
&a was stated by Lord Herschell in a debate, on Criminal Sentences, in the
House of Lords on April 21st, 1890— " Vital diiiferences of opinion are
€xpressed, and acted upon, by judges as to the principles which should
regulate sentences.. .and we see sentences vastly differmg in their severity
inflicted for the same offence committed under circumstances of the same
gravity." Similarly in Ireland, (as was stated by Lord Morris in the same
debate), when an effort was made by the judges, a few years ago, to inter-
change opinions with the view of arriving at some idea as to the gradations
of punishment, " it was found to be impossible, and the judges have had to
continue to act on their individual responsibility."
■» Sir Robert Anderson, K.C.B.; late chief of the Criminal Investigation
Department, in the metropolitan police. See his articles in the Nineteenth
Century, Feb. and July, 1901.
32—2
500 Extenuathig facts [ch.
has recently gono so far as to maintain that "our whole
system of punishing crime is false in principle and mischievous
in practice." Continental jurists, similarly, express so much
distrust as to the systems pursued in their countries that
the International Congress of Comparative Law, at its Paris
meeting in 1900, found it desirable to appoint commissioners
" to investigate the principles which should determine the
proper measure of criminal punishments, alike as to their
kind and their quantity'." But to Englishmen the im-
portance of arriving at definite principles on this subject is
peculiarly great ; for our abolition of minimum punishments
has given our judges a range of discretion, and there-
fore of responsibility, not usually entrusted to continental
tribunals*.
Yet, though Penology is thus still an incomplete science,
it is an ancient one. The experience of centuries rendered
familiar, long ago, various leading considerations which
habitually affect the minds of legislators in determining
the maximum penalty for any given class of offences, and
the minds of judges in determining the particular penalty
to be inflicted in any given instance. Thus the ancient
Roman lawyers enumerated' seven points to be taken account
of: — 1. Causa, e.g., wanton aggression or parental chastise-
ment; 2. Persona (both of oflfender and of victim) ; 3. Locus,
* Journal of the Society of Comparative Legislation, June, 1901. In tba
number for December, 1901, p. 238, will be found the questions which the
Paria Commissioners circulated.
' Cf. Franqueville, ii. 706. Sir Raymond West actually cited to the
Society for Comparative Legislation an instance in which, under the rigidity
of the French Code, it had been necessary in Egypt to sentence a boy who
had stolen a turnip to three years' imprisonment. Supra, p. 485.
* Dig. 48. 19, 16. The passage, which is a striking one, is the only
extant fragment of Claudius Saturniuus, an Antoninian magistrate. Cf.
an admirable corresponding enumeration of topics made by Biackstone,
(4 Comm. 13). The Code made in 1892 for Samoa treats the matter lesa
admirably; as when it provides (chap, (p), that "If any one breaks a lawoa
a Sunday, this aggravates the act."
xxxTi] Extenuating facts 501
e.g., sacrilege or not; 4. Tempus, e.g., night or day;
5. Qualitas, e.g., open theft or secret; G. Quantitas, e.g.,
theft of one sow or of a whole herd ; 7, Eventus, e.g., mere
attempt or consummated crime. Practically speakiog, the
Offence itself, and the Offender.
I. As regards the Offence, account must be taken : —
(1) of the greatness or smallness of the evil likely to result
from acts of its class^; (2) of the facility or difficulty with
which it can be committed^or, again, with which it can be
detected ; (3) of the frequency or rarity with which, at the
particular time concerned, acts of this class are being com-
mitted^; (4) of the aggravating or extenuating circumstances
which accompanied this particular act — for instance, (a) the
victim, as where a woman or a child is assaulted, (/3) the
place*, (7) the time^; (8) the company, a crime being more
dangerous if committed by a group of men than if by one
alone ^
II. As regards the Offender himself, account must be
taken: — (I) of any temptation^ under which he acted;
(2) of his age^; (3) of his education, career, and disposition";
(4) of his susceptibility to punishment, e.g., an imprison-
1 Hence {supra, p. 275) the severity with which treason is punished,
or a sentry's sleeping on duty ; even when the ethical guilt is small.
" Hence the severity with which servants are punished for thefts of their
employers' property ; and the leniency usually shown to the rank and file
after the suppression of a great rebellion.
^ Thus, the fact that felonies against property have (in proportion to
population) fallen to less than half of what they were a generation ago, has
made possible the lighter sentences which are now inflicted for them.
4 Cf. pp. 170, 219, supra. 5 cf. p. 175, supra.
6 Cf. p. 280, supra. 7 cf. p. 34, supra.
8 And sex. Of our grave offenders, women form only one-tenth.
9 The practice— convenient if questionable — of diminishing a sentence
because the accused has pleaded guilty, or has disclosed the whereabouts
of the stolen property, may be justified, even in theory, by regarding this
attitude of his as proof of a penitent disposition ; and so (as Lord Bacon
says) "a footstool for mercy."
502 Extenuating facts [ch.
ment meaning much more, but a fine meaning much less, to
a nobleman than to a ploughman ; (5) of the evil which the
judicial proceedings have inflicted on him already, e.g., his
imprisonment whilst awaiting trial'.
Numerous as are these determining circumstances, a com-
plexity is introduced by the fact that the same circumstance
will not be found always to operate in the same way. We
have already noticed this in the conspicuous instance of
strong Temptation ; which sometimes extenuates the punish -
ment^ and sometimes aggravates it. For, since the aims for
whicli punishment may be inflicted are numerous — deteiTent,
preventive, reformative, retributive, reparative' — the effect
of a circumstance may vary according to the particular aim
which is predominant in the mind of the particular legislator
or judge. For example, that the person murdered was the
husband or wife of the murderer, is usually regarded as
enhancing the wickedness of the crime ; yet there are some
modem codes which treat it as an extenuation^ Indeed, " it
has often happened," an experienced advocate once said',
"that the very same circumstance is considered by one judge
as matter of extenuation, but by another as a high aggra-
vation of the crime"; and he added, as illustrations, the
facility of the offence, the frequency of it, the fact of the
offender's being a foreigner, or of his being young (which can
be treated either as a proof that he is not yet hardened, or
that he is precociously wicked).
Since Romilly's time, the difficulties surrounding this
subject have grown greater instead of less. For the
* But the habitual and wise practice of taking any such preliminary
detention into account, in sentencing a convicted prisoner, requires, as its
logical consequence, to be supplemented by some legislative provision for
affording to acquitted prisoners pecuniary compensation for the similar
detention they may have had to undergo. Cf. p. .515, infra.
^ Supra, pp. 34, '65. ^ Supra, pp. 30 — 36.
* Journal of the Societij of Comparative Legislation, Aug. 1900, p. 351.
* Sir Samuel lioniilly, m the HouBe of Conimoiis, February 9, 1810.
XXXI i] Decrease of Crime 503
development, during the last half century, of a science of
Criminology^ has disclosed to us the unexpected complexity
of the problems of crimed The jurists of the eighteenth
century — Romilly himself, for instance, and his masters
Beccaria and Bentham — have earned a just fame through
their successful efforts to purge mediagval criminal law of its
aimless severities, by abolishing mutilations, minimising the
number of capital punishments, and reforming the prisons.
But experience has shewn that they exaggerated the
simplicity of the problem they were dealing with. They
treated the human race as if all its members were possessed
of equal moral responsibility, except a few abnormal in-
dividuals, all of whom were equal in their abnormality.
And they supposed that, if punishment were but aptly
selected, the threat of it would effectually restrain all or-
dinary human beings from crime*. But, since their time,
the experience of three generations has tested their doctrines.
Thus the vast numbers, in every country, of the " Reci-
divists," who return time after time to prison, has shewn
how exaggerated were the hopes once entertained as to the
reformative effects of well-directed imprisonment. For soul,
as for body, surgery is found far less effective than sanitation.
The cure of criminal habits is difficult. But the prevention
of them is more easy ; (as the remarkable decrease of crime
in England during recent years has shewn''). Yet even this
^ The student may refer to Prof. A. Prins' admirable treatise, La Science
penale, and to Tarde's La Philosophic penale.
2 Cf. Ladd's Psychology, p. 641.
* Even so experienced a lawyer as Romilly could say (in the speech
already cited) "If punishment could be made an absolute certainty, a very
slight penalty would sufSce to prevent almost any species of crime, (except
crimes arising from sudden passion)."
* The Criviinal Judicial Statistics issued in 1913 shewed (p. 9) a nearly
continuous decrease of indictable crimes since at least 1857 (beyond which
date, accurate comparison is not possible). The annual number of persons
tried for them was, in the period 1862—6, 2860 per million of population;
bat in 1911 only 1720 per million.
504 Crime and Economics [ch.
recent prevention^ has been effected less by any improve-
ments in the criminal law than by improvements in the
social surroundings of the people. Crime has diminished
not so much" because people were more strongly "deterred"
from it by the terrors of punishment, as because they were
raised further above temptation to it, by the effects of better
education', purer literature, greater sobriety*, healthier
dwellings', increased thrift, more systematic provision for
the events of sickness, accident, or fitfulness of employ-
ment, and readier assistance for orphans and other destitute
children. How much more the criminality of a country
depends upon its fiscal and administrative laws than upon
the laws that directly concern crime, has been growing
increasingly clear ever since, seventy years ago, the Belgian
statistician Quetelet first shewed by arithmetical illustrations
that the ratio of convictions to population varies both with
physical and with economical changes. Familiar examples
of this are the decay of smuggling since the reduction of
customs-duties, and of piracy since the development of steam
1 Which, unhappilj', is ahnost peculiar to England and Geneva.
2 Brougham's Speeches, iii. 238—240.
' A connection between ignorance and crime is manifested by the fact
til at in England the pi-oportion of persons who can neither read nor write
is six times as high amongst prisoners (being about one in every seven) as
it is amongst the general population (judging by the signatures to the year's
marriage-registers). In Ireland it is only about twice as high ; 25 per cent,
fo 12-7 per cent. ; {Irish Jud. Stat, of 1909). Of 182,816 jiersons sent to
English prisons in 1909, but 9799 could read and write well ; and but 309
were of "superior instruction." In France, however, the proportion of
grave offenders is greater (as 4 to 3) amongst people who can read and
write than amongst adult illiterates ; and one in twenty of such offenders is
of " superior instruction." (Covtpte general for 1912, pp. xvi, 41, 82.)
Education in France is more often purely secular than in England or Ireland.
* This is well illustrated by the statistics obtained at Zurich by Otto Lang,
which shew Sunday to have, there, nearly thrice its normal seventh share of
each week's crime, whilst the four middle (and therefore non-festal) days have
only about half their share.
* In Ireland, the ratio of indictable offences to population is six times as
high in towns as in rural districts ; [Irish Jud. Stat, of lUUO, p. 18).
xxxii] The Italian school 505
navigation. Others are the increase of violent assaults in
periods of high wages (as also, for a different reason, in the
months of heat) ; and the increase of thefts in years of bad
trade or in the months of winter. Not indeed that poverty,
in itself, is a main cause of crime. For the parts of England
where there are fewest acts of dishonesty are not those
where pauperism is at its lowest^ ; nor where it is higliest,
are they most numerous. But any economic change, which
intensifies poverty quite suddenly, will produce a temporary
increase of thefts. Experience of the influence of external
causes has led some observers of prison -life into extreme
generalisations; as when Lacassagne says that "A nation has
only just so many criminals as she deserves," or Mr J. W
Horsley that " Crime is only condensed alcohol."
During the present generation, the reaction against the
views of the eighteenth century has carried a very important
group of jurists — the "Italian" or "positive" school of crimino-
logists — into an opposite extreme. Instead of treating nearly
every offender as a responsible being, capable of being de-
terred from crime by the threat of punishment, these writers,
all but discarding any idea of deterrence, tend to treat nearly
every offender as an in-esponsible being, the victim of either
his nature or his nurture, either his defective cerebral organi-
zation or his unfavourable social surroundings. This "Scuola
Positiva'*" has formulated a five-fold classification of criminals,
grouped accordingly as their crimes spring, respectively : —
1 Indeed the very opposite is more nearly the case. Cornwall, extremely
high in pauperism, has very little theft ; whilst Lancashire and Northum-
berland have four and five times as much theft, yet little more than half
as much pauperism ; (Criminal Judicial Statistics, issue of 1901, p. 53).
Similarly, the Prison Commissioners (Report of 1901, p. 12) found that of
13SC juvenile prisoners only 106 had been led into crime by "want."
2 The leaders are — the late physician Cesare Lombroso, (of whose books
the principal is Vuomo delinquente, which has passed through several editions),
and the lawyers Garofalo, Ferri, and Colajanni. See the Journal of Soc. of
Comparative Legislation, 1910, pp. 220—228.
506 The Italian s^chool [ch.
(1) merely from Passion;
(2) from Opportunity, (the man offending only when
exposed to some active temptation and restrained by no
external check);
(3) from acquired Habit, (usually the result of social
surroundings) ;
(4) from Insanity, (in its innumerable variety of grades,
from mere neurasthenic absence of self-control to active
mania) ;
(5) from innate Instinct^, (which these writers regard
as usually an atavistic inheritance from some early stage
in the development of the human race).
This fifth class, the supposed "born-criminals," intermediate
between the madman and the savage, have been subjected to
elaborate investigation by the Italian writers; who allege
them to be recognisable by pathological signs, visible not
only in the skull and skeleton but even in the hands, muscles
and eyes. Some Russian psycho-pathologists have carried
this so far as to allocate different colours of the eye to
different species of crime; finding for instance, chestnut-
brown prevalent amongst murderers, and slate-colour amongst
robbers.
Of the five groups, the first two are corrigible ; but the
third (to which most thieves belong) passes easily into in-
corrigibility, and the fourth and fifth, from the outset, are
usually incorrigible. For these last three, therefore, as
desiqidlihres, the onl}'- appropriate treatment is " Segregation,"
{i.e., non-punitive detention in what is rather an asylum than
a prison). And this must continue for an indeterminate
period-; that is to say, permanently, except when the treat-
ment proves so successful as to bring any particular offender
to such a condition of mental health as makes it safe to
1 Aiistotle's "Brutishneas"; Ethics vii. 5.
^ Measured, not by the guilt of the Act, but by the obduracy of the Man.
xxxii] The Italian school . 507
release him. Meanwhile the detention is to have not only
a curative, but also a compensative purpose ; being so regu-
lated as to tryHo obtain from the labour of the criminal
a sum of money which will make amends to the victim of
the crime. In the case of offenders of the first two classes
the raising of this compensation-money will, indeed, be
practically the sole object of their detention.
In these Italian theories, it is obvious that criminal law,
properly so-called, disappears from view ; and is replaced by
civil law in some cases, and by the art of medicine in others.
The writers of this school have certainly rendered great
services by drawing attention to the necessity of distinguish-
ing between different types of criminals ; and by consequently
warning legislators against the old error of trusting uni-
formly to the deterrent efficacy of punishment; and, still
more, by warning judges of the necessity of an " Individuali-
sation of Punishment," based on such an inquiry into the
career and characteristics of each offender as will make it
possible to adapt his particular penalty to his particular
needs. But their influence is now waning. The patho-
logical peculiarities upon which so much stress has been
laid by them are now shewn to occur in many persons who
are free from all taint of criminality ; and even should they
prove to occur in criminals more frequently than in others,
this may be a mere result of economical surroundings, for
the surroundings of most criminals are those of poverty.
Nor is the innate instinct to crime at all so frequent as
these writers assume ; experience shews that most criminals
are much like other men, and that it is only by gradual
steps that they have fallen. The Italian writers are"— just
1 Hopelessly, however; for a prisoner, even when employed on produc-
tive -work, costs us some £15 a year more than he earns. Prison Report,
1910, p. 83. His gross earnings, at best, are under Is. 7d. a day.
■■^ My estimate of the Italian school, expressed as above in 1902, is almost
identical with that subsequently pronounced by von Liszt ; see p. 523 infra
for this, and for the notable English bluebook of 1913.
508 Reddhism [cii.
as, on the otluT hand, were the eighteenth-century writers
who laid exclusive stress upon Deterrence — too eager^ to re-
duce the complex problem of crime to an artificial simplicity.
In the reaction, at the beginning of the nineteenth
century, against penal severities, a theory arose that punish-
ments should be solely directed to the Roformati(jn of the
offender. But protracted experience has shewn that noble
aim to be far more difficult of achievement than this theory
pre-supposed. The great number of Recidivists, a number
now increasing in almost every country-, sufficiently attests
tiiis. Thus in England, the number of persons in prison
attain, after four or more previous couviciions, was 32,781
in the year 1891 : but it had risen in 1909 to 57,591 ■'.
Now the great object of criminal law is, as wc have said*,
to prevent crime. Hence, if any particular offender has been
convicted so frequently as to make it clear that he cannot
be kept from crime through the medium of either re-
formation or deterrence, it remains only to effect that pre-
vention in a direct way, by placing him in a seclusion where
it will be impossible for him to repeat his offences. Unless
80 secluded, he will not only continue his offences, but will
also train others to offend, and will moreover transmit his
aptitudes to a tainted posterity. "The interests of justice
are sacred ; the interests of the offender are doubly sacred ;
but the interests of society are thrice sacred''." For social
• Yet, as Van Hamel says, "The old lawyers bade men study Justice,
Lonibroso wisely bids Justice study men."
2 That the mere ■proportion of reconvicted to first-convicted prisoners
should be on the increase is, of course, a hopeful sign ; as shewing that fewer
persons are falling from innocence into crime. But even the actual number
of reconvicted prisoners appears to increase. If so, the prison does not
reform; possibly it even deforms, see T. Holmes' London PoUce-Courts.
Yet better modes of identification account for much apparent increase.
3 Grim. Jud. Statistics, issue of 1911, p. 134. In Ireland, out of the
prisoners sent to gaol during 1909 twenty-three per cent., in England, only
fourteen per cent., had previously been convicted eleven times or more.
♦ Supra, pp. 29-151. * M. Anatole France.
xxxii] The Weak-minded 509
safety, it has recently been made possible, by the Inebriates
Act, to seclude those whose craving for alcohol has proved
to be incorrigible'. A similar seclusion is still more urgently
necessary in the case of a similarly incorrigible craving for
crime^ (Hence in France, a criminal whose record shews
him to be thus hopeless, must be placed in perpetual relega-
tion, in a penal colony 3). Accordingly the Prevention of
Crime Act, 1908 (8 Edw. VII. c. 59) enables the court which
sentences to penal servitude a person whom a jury has con-
victed of felony*, and has also pronounced to be an " habitual
criminal V to add a further sentence of merely 'Preventive
Detention" after the end of the penal servitude. That
detention will be under treatment less rigorous* ; and may
be for any period between five years and ten, though not, as
the Bill at first proposed, for life.
It has been similarly suggested that a like seclusion,
(or even a still laxer one, as in farm-colonies under philan-
thropic surveillance), might be substituted for punitive im-
prisonment in the case of those offenders who stand at the
opposite extreme of the moral scale — the feeble folk who fall
into crime from mere weakness of wilF. The same feeble-
1 A familiar instance is that of the once-notorious Jane Cakebread;
against whom, at the time of her death, (Dec 6th, 1898), 281 convictions for
drunkenness stood recorded. Lord Herschell mentions, however, a woman
who underwent actual imprisonment for drunkenness 404 times.
2 For cases of persons imprisoned fifty times and upwards, see the annual
Bluebook for 1901 on Scottish Prisons.
* The condition of these relegues in New Caledonia is described with
praise by a recent observer, Mr G. GriflSth, in In an Unknown Prison-Land.
* Or of coining, false pretences, conspiracy to defraud, or being found by
night about to commit burglary.
6 If the indictment has charged him with being one ; which it can only
do by consent of the Director of Public Prosecutions.
" Between 50 and 100 such sentences are passed in each year.
7 As now aimed at by the Mental Deficiency Act, 1913. Many various
degrees of mental disorder or weakness which so lessen the power of
510 Effects of imprisonment [ch.
ness which makes them yield to the first tempter, or to the
first impulse, makes them also unable to balance motives, or
even to feel any deterrent force in so apparently remote a
prospect as that of legal punishment. Hence it is not by
threats of a punitive seclusion, but only by the direct action
of a preventive one, that they can be effectually withheld
from committing crime.
Nor are these the only considerations which render neces-
sary some extension of the variety of our modes of dealing
with convicted offenders. Multifarious as were the forms of
punishment practised by our ancestors, the humane abolition
of many of them, the virtual restriction of capital punishment
to cases of murder, and the reluctance to inflict corporal pain
upon adult offenders, have left us with practically no alter-
natives but those of penal Detention (in its various forms)
and of pecuniary Fines. But a fine is not an adequate punish-
ment for any offences that involve serious guilts Nor,
again, is it a punishment always practically available, even in
the case of the pettiest offences. For offenders are often
penniless ; more than one-sixth of the total number of
persons fined go to prison for default of payment*. Yet
where a fine is an impossible or an unsuitable penalty, it is
doubtful whether the only alternative — that of penal Deten-
tion — adequately effects the principal aims which the criminal
law has in view'. Detention may (1) gratify the prosecutor's
Resentment, but it does not, as at present organised, afford
him (2) any Compensation. It does for tlie time being, efi'ect
eelf-control that the man, with his diminished responsibility, becomes "unfit
for ordinary penal treatment, yet not capable of being certified as insane."
About one per cent, of our prisoners seem to be thus " sub-normal."
1 And even where a fine would intrinsically be an appropriate punish-
ment, the legal maximum, at present set to it, often renders it inadequate.
Thus the statutory 5s. has been joyfully found a slight set-off from the profits
of keeping a shop open all Sunday.
2 I.e. half tlie total number of our convicted prisoners. Justices should
be careful to order them only a Second Division imprisonment, (supra,
,,. 483). * Supra, pp. 31—36.
xxxii] Effects of imjyy'isoninent 511
(3) a Prevention of the continuance of the offender's criminal
career ; but in the case of short sentences, (which " enable
one criminal to do the work of many"), the suspension is
brief, and far too brief to secure (4) his Reformation ^ And
as regards (5) its Deterrent effects, though both its irksome-
ness and its degradation are greatly dreaded by those on
whom it has never been inflicted, yet it is to be feared that
so soon as persons have actually undergone imprisonment,
the fear of such incarceration, (in spite of its involving the
loss of alcohol and tobacco), ceases to have much influence
upon their minds". Thus it is that prison-warders find the
old offenders actually easier to manage than the first-con-
victed ones ; for the routine has grown pleasant to them.
Hence an experienced oSicial (Major A. Griffiths) has even
ventured on the epigram that " one-half of the people in our
prisons ought never to have been sent there, and the other
half ought never to come out." The unfortunate fact that
an actual experience of imprisonment does thus reduce its
* Cf. T. Holmes' London Police-Courts, pp. 230, 234, " To make a prisoner
not only a sadder but also a wiser man, Time must be afforded " ; e.g., even
a juvenile offender undergoes little amendment in less than three months,
(Report of Prison Commissioners for 1901, pp. 12, 44). Reformation, indeed,
is less often effected in prison, than by the aid of the advice now so con-
stantly afforded upon discharge from prison. It is pathetic to learn that
crimes are sometimes committed for the sake of securing this aid ; ("You get
a helping hand when you leave a prison, but not when you leave a work-
house," said a first offender recently).
^ "After the first experience, boys who are bad come to like, rather than
otherwise, the comforts of a prison cell, with its quietness " ; (Governor of
Durham Prison, in Pr. Com. Report of 1901). "Women often go out of
prison, saying they have never been so well or so happy anywhere else " ;
Report of 1901, p. 332. See, again, the same Report, pp. 44, 847, 388, 391,
445, as to the contrast between the casual wards of workhouses and the
prison, with its better food, warmer rooms, cleaner bedding, and its officers
"who speak civil and don't shout at you"; cf. supra, p. 323. "Old offenders
often commit crime to get into prison, to recruit their energies for fresh
depredations"; Dr John Campbell's Thirtij Years' Prison Experiences, p. 124.
Deterrence thus is weakest where most needed.
512 Probation of Offenders [ch. xxxii
deterrent power over the offender, (as well as impair his
reputation and his self-respect), has led to a widespread
exercise, even in cases of felony, of the statutory powers' of
releasing first offenders without punishments Hence comes
the paradoxical result, that persons whose first offence is a
heinous one often obtain an impunity which they would not
have enjoyed had they committed some offence so petty as
to admit of being punished by a fine. Yet the paradox must
be submitted to, until the legislature authorises some less
ineligible mode of punishment.
' In 1913, there were 10,105 persons thus released, after being proved
guilty of indictable offences; Criminal Judicial Statistics, issue of 1'J15,
pp. 35, 52. See, on this subject, an elaborate study by Dr Kaarlo Ignatius,
in the Zeitschrift fiir die gemmte Htrajrechtsicisseiixchaft for liJOl. The
persons so released form about one- third of those found guilty of indictable
offences. "We concur," say the Irish Prisons Board (Report for 1904,
p. viii), "in the conviction expressed in the last Report of the Scottish
Prison Commissioners, that ' short sentences of Imprisonment are not only
useless for reformation but actually harmful to the prisoner'." "It is an
indubitable fact," the English Prison Commissioners similarly remark
(Report for 1906, p. 20), "that a succession of short imprisonments does a
man more harm than good." An offender should not enter a prison except
for a period sufficiently long to be capable of developing in him better habits.
Infra, p. 524.
"^ Supra, p. 432. These powers will probably be exercised still more
frequently in future ; now that the Act of 1907 has included amongst them
an authority to place offenders under the care of Probation Officers— an
intermediate course between actual imprisonment and absolute dismissal,
and often better for a first offender than either of those extremes would be.
For by the Probation of Offenders Act, 1907 (7 Edw. VII. c. 17), any court,
whether of summary or of higher jurisdiction, which considers that, though
an offence is proved, it is inexpedient to inflict actual punishment, may
release the offender on recognizances to be of good behaviour and to appear
for judgment within three years if called on; it may also order him to pay
damages and costs, and may place him under the supervision of a Probation
Officer, whose duty will be to visit him periodically, report on his behaviour,
and "advise, assist, and befriend him." If he behaves badly, he may be
arrested and receive sentence for his original offence. In 1913 one-sixth of
the persons against whom indictable offences were summarilij proved were put
under Probation Officers. Less than six per cent, of the probationers offend
again within the same year.
CHAPTER XXXIII.
COMING CHANGES.
The student's task in mastering the principles of English
criminal law and procedure — a task which it is hoped that
the present volume may in some slight degree facilitate —
will be rendered far more easy, should those principles ever
be reduced by the legislature to an authoritative form. But
the codification of criminal law — though successfully accom-
plished in all the leading continental countries, in India, and
in several of the principal British colonies — seems in England
to be more remote now than it did thirty yeais ago, when it
formed in successive sessions a prominent feature in the
programme of Lord Beaconsfield's cabinet. They, in 1878,
introduced a Criminal Code Bill, which had been drafted by
Sir James Fitzjames Stephen ; and reintroduced it in 1879,
after it had been recast by a committee of judges, and again
in 1880, with some few further alterations. Had the Bill
passed, it would not only have reduced the present law to a
briefer and more precise shape, but would also have intro-
duced some important reforms. For it would have (1) recast
the present distinctions between felony and misdemeanor,
(2) recast the present law as to coercion and compulsion,
(3) removed from the law of murder all cases of merely "con-
structive" malice, and (4) simplified the present multiform
law as to thefts and frauds. And it would, further, have
^ 33
514 Possible Reforms [CH.
effected several changes in procedure ; as, for instance, with
regard to indictments, venues, special juries, challenges, costs,
and appeals. But the Bill still awaits enactments
Meanwhile some particular reforms are being effected
piecemeal. Thus in 1911 the Perjury Act {supra, p. 294)
and in 1913 the Forgery Act {supra, p. 255) gave instal-
ments of codification. And, in procedure, the Act of 1907^
created a general Court of Criminal Apjjeal.
This creation, it may be hoped, will help to lighten the
tasks of the Home Secretary. Previously, he had received, on
an average, in every year some fuur thousand petitions for
remissions of sentences. To about three hundred of these,
on an average, he made some concession, partial or complete;
usually on proof of some extenuating circumstance, or, less
often, on medical grounds. But, happily, only in less than
a score of cases, annually, was a remission made necessary
by any doubt as to the justice of the conviction itself*.
Amongst other possible changes which have come under
public discussion are — the adoption, by agreement of the
judges, of some approximate standard of sentences for familiar
types of crime; the abolition of grand juries*; the enlarge-
ment of the public provision for the prosecution of offenders";
1 "It is impossible to view without a certain degree of humiliation the
entire cessation, during recent j'ears, of any effort to improve the form of
English law, and the apathy with which that cessation has been regarded;
...our want [of a criminal coJe] produces practical and substantial incon-
veniences" (Sir Courtenay llbert. Legislative Methods, 1901, p. 1G2).
2 7 Ed. VII. c. 23. Supra, p. 419.
2 CriminalJudicial Statistics, issue of 1901, p. 218; 1902, p. 164.
■• Supra, p. 457. Mittermaier, Englische Strafverjahren, § 15.
* At present the Director of Public Prosecutions undertakes only about
five to six hundred cases annually; nearly half of which are for acts either
of homicide or of coining. See Table put in the Crirninal Judicial Statistics
of each year. For the success in Scotland of a universal system of public
prosecutions, see Lord Cockburn's article in the Edinburgh Review, lxxxiii,
202. Cf. p. 10 supra. Contrast the judicial complaint in C. C. G. Sess. Pap.
cxLvi. 22.
CH. xxxriij Criminal Justice 515
the provision, as in France^ of counsel for the defence of all
indicted prisoners ; and a more systematic allowance of com-
pensation from public funds to convicted prisoners who esta-
blish their innocence^ or even (as in Scandinavia) to acquitted
prisoners who have undergone actual detention in gaol whilst
awaiting triaP — a detention which takes place under rules
more severe than those sometimes applied now to convicted
prisoners ■*.
But all these are, comparatively speaking, matters of mere
detail. The broad rules of English criminal law and pro-
cedure — in spite of a few imperfections in their substance
and many imperfections in their form — embody such exten-
sive experience, and are animated by so strong a spirit of
fairness and humanity, that our criminal courts, great and
small alike, may well recall the tribunal depicted by the great
novelist^ "ou, dans I'obscuritd, la laideur, et la tristesse, se
d^gageait une impression austere et auguste. Car on y
sentait cette grande chose humaine qu'on appelle La Loi, et
cette grande chose divine qu'on appelle La Justice."
1 The Code d' Instruction Criminelle, art. 294, compels French assize-
courts to assign counsel to every undefended prisoner. For England, see
the recent Poor Prisoners' Defence Act, 1903, (3 Edw. 7, c. 88) ; infra, p. 517.
'^ During the last twenty years, such a system has been established by
law in Portugal, Scandinavia, Austria, Belgium, and France.
3 In 1901, the Treasury granted £600 to Mr Charles Lillywhite, who had
been brought in custody from New Zealand to Colchester, on a charge of
murder, but was discharged by the magistrates. In 1905, it similarly
awarded £-5000 to Mr Adolf Beck, after actual conviction ; on demonstration
that fifteen witnesses had been mistaken in their identification of him. But
this was only the eighth case of compensation during seventy years.
* In 1913, no fewer than 382 of the acquitted prisoners had been
detained in gaol for four weeks or more, and 165 of these for eight weeks or
more ; (Criminal Judicial Statistics, issue of 1915, p. 140).
B Les Miserablcs, Vil. ch. 9.
33—2
517
NOTE A
(TO CHAPTER XXX)
DEFENCE OF POOR PRISONERS
By the Poor Prisoners' Defence Act, 1903S(3 Edw. 7, c. 38),
— taking effect on Jan. 1, 1904 — power has been given to justices
of the peace, upon committing a prisoner for trial, to certify that
a solicitor and a counsel ought to be assigned to him, and the
expenses of his defence defrayed out of public funds. Or a
similar certificate may, instead, be given subsequently, at any
time after reading the depositions, by a judge of the assize, or
the chairman of the quarter-sessions, at which he is to be tried.
But this power is only to be exercised where (1) the prisoner
has set up before the committing justices some defence which is
of such a nature as to render it "desirable in the interests of
justice" that he should have legal aid in preparing and con-
ducting his defence, and at the same time (2) he is too poor to
obtain such aid at his own expense. A complex alibi is a good
instance of such a defence as calls for the application of the Act.
The chief value of the Act lies in its providing a solicitor ;
for it has long been the practice of the judges, if they find the
prisoner to be undefended in any case of exceptional difficulty,
and in all capital cases, to ask some counsel to undertake (without
a fee) his defence.
^ "Without doubt, one of the worst- conceived and worst-drawn pieces of
legislation I ever saw"; (Wills, J., Times, Oct. 28, 1904).
518
NOTE B
(TO CHAPTER XXXI)
After mastering the rules for the drafting of an indictment,
the student may impress them on his memory by considering the
following practical illustrations.
INDICTMENT FOR MURDER.
Cambridgeshire, to wit.
The jurors for our Lord the King upon their oath present
that John Doe, on the 1st day of January in the year of our
Lord 1903, feloniously wilfully and of his malice aforethought
did kill and murder one Richard Roe ; against the peace of our
Lord the King, his crown and dignity.
INDICTMENT FOR LARCENY, (WITH A SECOND COUNT
FOR RECEIVING).
Cambridgeshire, to wit.
The jurors for our Lord the King upon their oath present
that John Doe, on the 1st day of January in the year of our
Lord 1903, an umbrella and a gun, of the goods and chattels of
Richard Roe, feloniously did steal take and carry away; against
the peace of our Lord the King, his crown and dignity.
And the jurors aforesaid, upon their oath aforesaid, do further
present that the said John Doe afterwards, to wit, on the day
and year aforesaid, the goods and chattels aforesaid, before then
feloniously stolen taken and carried away, feloniously did receive
and have, he the said John Doe (at the time when he so received
the said goods and chattels as aforesaid) then well knowing the
same to have been feloniously stolen taken and carried away ;
against the form of the statute in such case made and provided,
and against the peace of our said Lord the King, his crown and
dignity.
Indictnients 519
FORMS OF THE STATEMENT, IN INDICTMENTS.
(For the Commencement and the Conckision, see forms on p. 518.)
Manslaughter.
...present that A.B., on the 1st day of May in the year of
our Lord 1P14, feloniously did kill and slay one CD.: against
the peace....
Bw'gJavi/.
...present that A.B., on the 1st day of May in the year of our
Lord 1914, about the hour of ten in the night of the same day,
the dwellinghouse of CD., situate in the parish of Girton in the
county of Cambridge, feloniously and burglariously did break and
enter, with intent the goods and chattels of the said CD. in the
said dwellinghouse tlien being, feloniously and burglariously to
steal take and carry away: against the form....
Arson.
...present that A.B., on the 1st day of May in the year of our
Lord 1914, feloniously unlawfully and maliciously did set fire to
a certain house situate in the parish of Orwell in the county of
Cambridge with intent thereby to injure: against the form....
Malicious Damage.
...present that A.B., on the 1st day of May in the year of our
Lord 1914, in and upon certain real property of a private nature,
to wit a pane of 2:>late glass of the value of an amount exceeding
five pounds and of the property of CD., situate in the parish of
Kingston in the county of Cambridge, unlawfully and maliciously
did commit certain damage injury and spoil, to an amount ex-
ceeding five pounds, to wit the amount of seven pounds, by unlaw-
fully and maliciously breaking and destroying the same: against
the form....
Forgery: and Uttering.
...present that A.B., on the 1st day of May in the year of our
Lord 1914, feloniously did forge a certain note of the Bank of
520 Indictments
England, commonly called a bank-note, for the payment of £5,
with intent thereby then to defraud : against....
^\nd the jurors aforesaid, upon their oath aforesaid, do further
present that the aforesaid A.B. afterwards, to wit upon the day
and year aforesaid, feloniously did offer, utter, dispose of, and put
off a certain forged note of the Bank of England, commonly called
a banknote, for the payment of £5, to wit the note described in
the tirst count of this indictment, with intent thereby then to
defraud, he the said A.B. then well knowing the aforesaid note
to be foiged : against the form....
False Pretences.
...present that A.B., on the first day of May in the year of our
Lord 1914, unlawfully knowingly and designedly did falsely
pretend to one C.U. that he the said A.B. was then employed
by the British Banking Company at Cambridge in the county
of Cambridge, and that he received his salary from the said
Company once a week ; by means of which false pretence the
said A.B. did then unlawfully obtain from the said CD. certain
food and wine to the value of ten shillings, the goods and chattels
of the said CD., with intent to defraud : Whereas in truth and
in fact the said A.B. was not then employed by the said British
Banking Company, and did not receive any salary from the said
Company once a week or otherwise, as he the said A.B. then well
knew : against the form....
Enibezzlement.
...pre.sent that A.B., on the 1st day of May in the year of our
Lord 1914, being then employed as servant to CD., did receive
and take into his possession five pounds in money, for and in the
name and on the account of the said CD. his master, and the
said money then fraudulently and feloniously did embezzle; and
so, in manner and form aforesaid, the said money, the property of
lis said mastei', from his said master feloniously did steal take and
carry away : against the form....
In dictments 521
Fraudulent Conversion (p. 235).
...present that A.B., on the first day of June in the year of
our Lord 1914, in the parish of Barton in the county of Cam-
bridge, having been entrusted by one CD. with certain property,
to M'it the sum of ten pounds in money, belonging to CD., in
order that he the said A.B. might apply the said property to a
certain purpose, to wit in order that he might purchase a bicycle
for the said CD., unlawfully and fraudulently did convert the
said property to his own use and benefit: against the form....
Wounding. (Two counts.)
...present that A.B., on the 1st day of May in the year of our
Lord 1914, one CD. unlawfully and maliciously did wound :
against the form....
And the jurors afoj-esaid, upon their oath aforesaid, do further
present that the said A.B., on the said 1st day of May in the
year aforesaid, did unlawfully and maliciously inflict grievous
bodily harm upon the said CD.: against the form....
Assault.
...present that A.B., on the 1st day of May in the year of our
Lord 1914, in and upon one CD. unlawfully did make an assault,
and him the said CD. did then beat wound and illtreat : against
the peace....
Libel.
...pi-esent that A.B., on the 1st day of May in the year of our
Lord 1914, maliciously and unlawfully did write and publish, of
and concerning CD,, the false malicious and defamatory words
following, that is to say, [here set out the actual words of the
libel, and add any innuendoes that may be needed] : against the
peace....
[or, if the facts permit it, the indictment may instead conclude]
...he the said A.B. then well knowing the said defamatory
libel to be false: against the form.... [Seep. 314.]
522 Indictments
Bigamy.
...present that A.B., on the first day of May in the year of
our Lord 1910, at the parish of Richmond in the county of Surrey,
did marry and take to wife one CD.; and that the said A.B.
afterwards, and whilst he was so married as aforesaid, to wit, on
the first day of June in the year of our Lord 1914, at the parish
of Coton in the county of Cambridge, feloniously did marry and
take to wife one E.F., the said CD. his former wife being then
alive : against the form ....
Common-Law Riot.
...present that A B., CD., and E.F., together with divers
'other evil-disposed persons to the number of thirty and more, to
the jurors aforesaid unknown, on the 1st day of May in the year
of our Lord 1914, at the parish of Bourn in the county of Cam-
bridge, unlawfully routously and riotously did assemble and
gather together to disturb the peace of our said Lord the King ;
and, being so then and there assembled and gathered together,
did then and there unlawfully routously and riotously make a
great noise riot and disturbance, to the great disturbance and
terror of the liege subjects of our said Lord the King then and
there being: against the peace....
Accessory after Fact.
[Add after count charging the principal felon.]
And the jurors aforesaid, upon their oath aforesaid, do further
present that Y.Z., well knowing the said A.B. to have done and
committed the said felony in form aforesaid, afterwards, to wit,
on the 5th day of June in the year of our Lord 1914, him the said
A.B. did feloniously receive, harbour, maintain, relieve, aid,
comfort, and assist; against the form....
523
NOTE C
(TO CHAPTER XXVIII)
The circuit arrangements are now regulated by an Older in
Council made on June 28, 1909, Of the Winter Circuits, some
begin as early as Jan. 1 1 ; (only Manchester, Liverpool, and
Leeds have an Easter Circuit); of the Summer Circuits, some
begin as early as May 24 ; of the Autumn Circuits, some begin as
early as Oct. 12. The Winter and Summer ones are civil as well
as criminal ; but at the Autumn one (which is held in only forty
seven towns, instead of the fifty-nine and fifty-seven of the two
greater circuits) no civil business is usually taken, except in six
large towns. The counties are grouped into eight circuits.
By the Assizes and Quarter Sessions Act, 1908 (8 Edw. VII.
c. 41), power is given to dispense with the holding of any court
of assizes, or of quarter-sessions, if, on the fifth day before its
appointed date, there are not yet any cases for it to try.
NOTE D
(TO CHAPTER XXXII)
F. V. Liszt, probably the highest living authority in Germany
on such a subject, has recently summed up the present state of
the controversy by saying {Systematische Rechtswissenschaft, ed.
1906, pp. 218 — 222), that in spite of the cordial reception which
the Italian school has met with amongst the jurists of Southern
Europe and South America, its influence is waning elsewhere.
Its theories are found to be lacking in scientific foundation, and
often to be inconsistent with each other.
But (he adds) it still has rendered lasting services. For it
has accumulated a mass of facts, in criminal pathology, which
urgently need reexamination by thinkers more circumspect ;
(though it is impossible to admit that these anomalous predis-
positions " to run off the rails of Life " occur in criminals in
general). And it has warned us not to exaggerate the Deterrent
524 Vo7i Liszt's conclusions
efficacy of Punishment; "for it is not that panacea for all moral
ills which many people even now fancy it to be," and severer
penal laws would not check crime amongst the very poor so
rapidly as the provision of healthier houses would. Nevertheless
we need feel no scepticism as to the permanent necessity for
Criminal Law or as to the fact that the spectacle of Punishment —
society's most solemn expression of its prohibitions — does go far
in restraining ordinary people from the conduct prohibited.
The Italians have also awakened us to the importance of
making sure that where Punishment fails to deter from crime, it
shall at least debar from it. For incorrigible offenders a longer
imprisonment than mere Retribution calls for, is necessary as a
Restraint, for the protection of the public. *'A11 criminalists
now condemn the aimless folly of sending an habitual offender
to an imprisonment so short as neither to reform nor to deter
nor to permanently seclude him." Von Liszt adds that some
protracted Seclusion should also be provided, not merely for
habitual criminals and for mentally-unbalanced ones, but also
for habitual vagrants (the 'incorrigible rogues' who perplex
our Quarter Sessions).
For first offenders, on the other hand, experience throughout
many countries has now established the importance of suspending
all imprisonment, by a Conditional Sentence, until the criminal
has shown by further bad conduct that he is unwilling to amend.
The contiict of theories — von Liszt therefore concludes — is
thus sufficiently near a settlement to make it the business of
every civilised nation to provide itself with a systematised
criminal law, based ou a scientitic investigation of the actual
causes of wrongdoing.
A Parliamentary blue-book of 1913 ("The English Convict,"
pp. 440) tabulates elaborate medical statistics concerning three
thousand grave offenders. The results challenge at almost every
point the Italian theories, and lead to the inevitable conclusion
that "there is no such thing as an anthropological criminal type"
(p. 370). That conclusion is, of course, quite compatible with
Von Liszt's co7iclusions 525
the familiar fact that the proportion of persons more or less
defective, in body or mind, is usually higher amongst prisoners
than amongst the general population. This fact is readily
intelligible, quite apart from any theory of innate criminal
propensities. For every one who has less than the average
power of earning an honest living, has more than the average
temptation to get his living dishonestly. Moreover the same
defects which hamper him in any effort to earn, hamper him also
in any effort to evade the police. Thus the proportion of feeble
folk will be higher amongst criminals than amongst ordinary
men ; and higher amongst criminals arrested and punished than
amongst those who succeed in evading detection.
The Prison Commissioners, in their Report of 1914, endorse
(p. 23) the conclusions of this blue-book ; and hold that " there
are no physical or mental or moi'al characteristics peculiar to the
inmates of our prisons. ...The man is not predestined to a criminal
career by a tendency which he cannot control."
Note E.
(To Chapter XVIII.)
In Hex V. Turner (13 East 228) Lord Ellenborough ex-
pressed an opinion that persons who combined to commit a mere
civil trespass would not necessarily become thereby guilty of a
Conspiracy, This opinion was cited, without disapproval, by
Lord Denman in Eeg. v. Kenrick (5 A. and E., N. S., at p. 62.
It is true that Lord Campbell subsequently said in Keg. v.
Rowlands (17 A. and E., K S., 671) that Rex v. Turner "was
wrongly decided." But the context shews that he did not, by
these words, mean to challenge this dictum of Lord Ellenborough's;
but only to point out that Turner and his associates ought not to
have been dealt with as having planned a mere civil trespass,
for they had purposed a substantive crime — viz. to make armed
resistance to lawful arrest.
Cf. Rex v. Wkitaker (10 Cr. App. H., at p. 253).
526 Vojt LiszVs conclusions
Note R
(To Chapter XX XT.)
Borstal Institutions are State-svippovted reformatories for
"juvenile adults"; to whom they give moral, physical, and
industrial training, on a system invented at Borstal Prison,
Kent. Offenders aged, at the time of their conviction, not less
than sixteen or more than twenty-one, may be sent there tbrjiot
leaa^ tlian two ye ars (since the C. J. A. Act, 1914, s. ll) _nor
more than three, instead of to imprisonment or penal servitude.
During 1913, 473 males and 49 females were so sent; most of
whom had been previously convicted, some more than ten times.
The C. J. A. Act, 1914, s. 10, permits petty sessions, on convicting
a "juvenile adult" that seems to need such prolonged detention,
to send him to Quarter Sessions which can sentence him to it,
if it see fit. This section takes effect from Sept. 1, 1915.
The system exercises a valuable reformative influence, which
is rendered more permanent by the after-care bestowed on the
inmates, subsequently to their discharge from the Institutions, b/
an admirable voluntary Society, the " Borstal Association."
INDEX.
Abortion 138
Accessory after the fact
defined 88
wife and husband 72, 88
Accessory before the fact
defined 86
liability 86, 87
indictable as principal 89, 464
Accomplice
requires corroboration 386
spy is not one 387
Admissions (see also Confessions)
■what they are 367
civil rules unlike criminal 393
of prosecutor 393
of agents 368, 398
by silence 368
by preserving documents 370, 399
whole is admissible 349, 370
Agent
and principal 87
appropriation by 235, 425
innocent agent 84
agency of co-conspirator 292
Alien enemy 131
Alien resident 271
Ambassadors 94, 315
Amercement 485
Animals — theft of
/era£ naturae 193, 194
domestic 193, 201, 202, 222
kept in confinement 202, 222
Appeal
H.M. Court of 420
new Court of Criminal 419
prisoner's rights to 490
Appeal (cont.)
procedure on 491
by case reserved 420, 492
to House of Lords 415, 494
from petty sessions 425, 436 — 438
" Appeal of felony " 18, 19, 144
Arraignment 466
Arrest
for summary offences 432
for indictable offences 441 — 446
warrant for 441, 446
who may issue 441
execution of 442
•• backing " of 442
without a warrant 443 — 445, 446
special powers of constable 444, 445
using force to effect 103, 154, 442,
443, 444
breaking doors to effect 442, 443
killing arrester 442, 444
Arson
at common law 162
statutory definition 162
when capital 163, 482
the necessary malice 163
Asportation 187
Assault
defined 151
not mere obstruction 152
not mere words 152
occasioning harm 149
not occasioning harm 151
poisoning not one 153
unloaded weapon 152
when justifiable 154 — 158
by neghgence 158
5z8
Index
Assault [eont.)
aggravated and common 158, 159
with intent to rob 220
punishment of 158, 159
summary procedure 159, 160, 433
judicial separation for 160, 433
evidence of husband 405
Assize Courts
their functions 423, 523
Attainder 488
Attempts
proiimateness 80
impossibility 81
conviction for, upon indictment
for full offence 82, 463, 471
punishment of 36, 82
Austin (John)
on definition of crime 13, 14, 15
on will and intention 49, 131
Autrefois acquit 469 — 471
Autrefois convict 469 — 471
Bail
police ofBcer accepting 446
during preliminary inquiry 450
upon commitment 449, 450
Bailees (see Larceny) 187 — 191
Bar, trial at 422
Bastardy order 431
Battery (see Assault) 151
Begging 321, 322
Benefit of clergy
its history 480, 481
in murder 124, 481
Bentham
on criminal legislation 26, 27, 28
on evidence 331
Best evidence (see Document)
scope of rule 359, 362
when dispensed with 361
when depositions are 451
Bigamy
definition of 300
the first marriage 300
the second marriage 302
jurisdiction in bigamy 303
the proof 303
Bigamy [cont.)
presumptions in 327
seven years' absence 304
supposed death 304
punishment 306
civil action for 306
not at Quarter Sessions 425
Birth
what constitutes 123
injury before 129
concealment of 129
evidence of 337
Bishops at trials
by House of Lords 417
by Lord High Steward 419
Blackstone on
definitions of crime 4
relation of crime to tort 19
classification of exemptions 49
classification of crimes 101
Blockade-running 319
Bodily harm
causing actual 141, 149
causing grievous 145
liorstal treatment 484
Boys
under twelve
summary trial of 434
industrial school for 484
nndcr fourteen, whipping of 485
under sixteen (see Young persons)
Breach of the peace
ai-rest for 443, 444
Burden of proof
is on aflirmant 343
facts known to accused 344, 345
shifted by statute 346
Burglary
definition of 170
the house 171, 172
the breaking 172
breaking out 174
the entering 174
the night 175
the intent 176
punishment 177
kindred offences 173, 323
Index
529
Burglary (cont.)
at Quarter Sessions 425
acquittal of, no bar to larceny
471
Butler, Bp
on punishment 32
Carnal knowledge 410
Cattle
killing and wounding 168
theft for feeding 213
Central Criminal Court 422, 424
Certiorari, writ of
to remove trial 421
to review proceedings 422, 436
Challenges of jury
to array 475
to polls 475
peremptory 475
for cause 475
Chance-medley 107
Character
how estimated 391
its relevancy 353, 390
its probative force 392
rebutting evidence 392
Children (see also Infants, Boys)
evidence of 374
giving unsworn evidence 375, 386
summary trial of 434
Circumstantial evidence
its meaning 331
its value 332—337
when insufficient 388
Clameur de Haro 21
Codification (Bill of 1880) 513
Coining, arrest for 444, 445
Colonial governors 413, 421
Commitment for trial (see Fre-
liminary examination)
Compensation
to purchaser of stolen goods 227
to person unjustly convicted 515
Competency of witnesses
possessing an interest 374, 399
prisoner's own evidence 400
how given 401, 477
K.
Competency of witnesses {co7it.)
comments on it 477. 478
cross-examination 401, 102
unsworn statement 402
co-prisoners' evidence 401, 403
prisoner's wife or liusband formerly
incompetent 403
now competent for defence 404
when for prosecution 405
criminal proceedings for civil right
402, 405
infancy and insanity 374
religious belief 375
Complaint
in summary procedure 430
Complaints
admissibility of 366
Compounding an offence 278
Conceahnent of birth 129, 4G3
not at Quarter Sessions 425
Confessions
defined 367, 393
danger of 394
must be voluntary 394
temporal inducement 395, 396
person in authority 397
acts accompanying 393
obtained by artifice 398
retractations of 477
Confusio 223
Consent as a defence 110
Conspiracy
definition of 287
requires two persons 288
husband and wife 72, 288
the unlawful purpose 288 — 290
trade disputes 290
evidence of 291, 292, 352
to murder 293, 414
to incite 80, 288
for crime abroad 413
does not merge in completed
offence 288
Vexatious Indictments Act 465
punishment 293
Constable
arrest by 444, nn
34
530
Index
Contempt of conrt 18
imprisonment for 483
Contraband of war 319
Contract, breaches of
when criminal 28
conspiracy to commit 289
Conversation
eliciting whole of 349
Coroner's inquest 426, 453, 454
Corporations
abpence of will 63
difliculty of indicting 62, 466
liability of individual members
64
at Quarter Sessions 466
service of summons 466
Corpse (see Larceny)
Costs
in summary procedure 430, 435
in ordinary procedure, of prosecu-
tion 449, 487
of felon or traitor 488
under Vexatious Indictments Act
465, 488
of defendant 487
scale of 487
Count (see Indictment)
Crime
scope of the term 91
definitions by nature of act 3 — 9
definitions by procedure 9 — 16
how " sanctioned " 12
the ultimate test 16
judicial test 17
violation of duty 5
its public mischief 5, 6, 7
its turpitude 8
evolved out of tort 21 — 24
not necessarily a tort 19
principal and agent in 87
mental element 37
physical act 38
presumption against 326
proof of 383
why diminished 504
classification of crimes 83, 91 —
93. 101—102
Criminal Code Bills 513
as to felony and misdemeanor TOO
as to classification 101
as to murder 137, 140
as to theft 239
Criminal jurisdiction
no limit of Time 409
statutory exceptions 410
mainly Territorial 411
not for pirates 316, 411
personal jurisdiction
in murder 141, 413
in bigamy 302
in treason 413
over seamen 413
surrender of fugitives 411, 412
courts possessing 415 — 427
Criminal law
distinguished from civil 5
under Judicature Act 17
rules of evidence peculiar to 381 —
408
Criminal legislation, Beutham'a
rules for 26, 27, 28
Criminal procedure
limitations upon its exercise 409 —
414
summary procedure 428 — 438
ordinary procedure 439 et seq.
English procedure contrasted with
foreign 497, 498
Cross-examination
scope and objects of 347
in French courts 496, 497
Crown Cases lleserved
what they were 41'.!
jurisdiction how exercised 41'.>
no further appeal 419
Custom
presumption of 329
Damage (see Malicious damage)
Damages
in summary procedure 166, 433,
489
payable by convicted felou 489
Index
531
Death, penalty of
crimes it applies to 140, 163,
275, 317, 482
its infliction 482
Debt, imprisonment for 13
Declarations (see also Dying declara-
tions)
against interest 372
in course of employment 373
Deeds
title-deeds not larcenable 200
theft of title-deeds 222
presumption of date 328
Deer, theft of 222
Defence
homicide in 103, 104, 107
assault in 154
Deformities, exposure of 322
Delicta publica 5
Demanding by menaces 220
Demurrer 468, 489
Deodand 35, 106, 107
Depositions
rules for taking 389, 390
taken abroad 408
Direct evidence 332, 334, 335
Director of prosecutions 514
Divorce 11, 278
Document
forgery of 256
eliciting whole of 349, 373
proof of contents 359
proof of condition 359
secondary evidence of contents
361—362
public document 362
proof of genuineness 378
attestation and sealing 379
stamps on 406
Documents of title
theft of 202
Dogs, theft of 222
Duress 35, 73
Dwelling-house
what is 171
being found in 178
Dying declarations 388, 389
Electricity, larceny of 200
Embezzlement
distinguished from larceny 186, 228
defined 229
who is a servant 230
what can be embezzled 231
proof of 233
" general deficiency " 234
false accounting 234
appropriation by agents and
trustees 235
conviction for, on indictment for
larceny 233, 471
summary procedure in 434
joinder of counts 462
punishment 229
Evidence
its nature 330
need for excluding some 340
conviction bad if on any inadmis-
sible evidence 341
mode of eliciting 346
French mode 347
of prisoner 400
of prisoner's wife 403
(see Competency)
value of rules of 324
their origin 324, 340
classifications of,
" personal " and " real " 331
direct and circumstantial 331—
339
waived in civil cases only 342
fundamental rules 343—380
rules peculiar to criminal law
381—408
Examination in chief 347
Execution of criminals 103, 482
Exemplary damages 12
Explosives Act
proof of lawful purpose 346
offences abroad 413
Extradition
the object 412
fugitive offenders in British do-
minions 412
depositions taken abroad 408
34—2
532
Index
Facta probanda 331, 332
False accounting 234
False personation '251
False pretences, obtaining by
definition 240
distinguished from larceny 207,
241
the Right obtained 241—244
obtaining from agent 242
obtaining from bailee 243
the Thing obtained 244, 245
must be larcenable 244
obtaining a service 244
the Pretence 245—251
express or implied 245
as to future 245
promises 247
facts or opinions 248
as to state of mind 249
inoperative pretences 249, 250
obtaining credit 247
fraudulent cheques 246
fraudulent wrappers 2GU
Vexatious Indictments Act 465
conviction for, when larceny is
proved 251, 463
restitution order 251
punishment 251
summary jurisdiction in 434
procuring alms by fraud 322
False weights 240
Felony
definition 92
derivation 93
historical origin of 98
former incidents of 93
existing „ ,, 94
proposed abolition 100
inquisitorial procedure in 98, 99
costs and damages in 95
arrest for 95, 96
degrees of participation in 83
civil remedy 96
disqualifications by conviction 97
punishment after previous con-
viction 483
trial of peers 417, 419
Felony (cont.)
" pleading over " in 471
right to speedy trial in 472
challenging jury in 475
benefit of clergy 480
Ferae naturae (see Animals)
Finder 210, 214
Fines 485, 510
Finger-prints 333
First Offenders Act 512
Fish, stealing 194
Fixtures not larcenable 198
Foreign enlistment
history of 317
foreign service 318
equipping vessels 318
fitting out expeditions 313
punishment 318
committed abroad 413
Forfeiture
in felony 93, 467, 488
abolition of 93, 488
financial aspect of 100
in excusable homicide 106
of deodand in excusable homicide
106
Forgery
definition of 255
common law and statutory 255
the document 256
the Falsity 257—259
ineffective forgery 257
exceeding authority 257
implied falsehood 258
the Making 258—260
by omission 259
by innocent agent 259
execution procured by fraud 259
the Intent 260— 2G2
not always same 260
impossibility of fraud 262
evidence of intent 262
the Uttering 262
punishment 262
Quarter Sessions 425
conviction upon indictment for
false pretences 463
Index
533
Fortune-telling 322
Frankpledge 29, 63, 280, 439
Fugitive Offenders Act 412
Gaming
in public-house 47
in open and public place 322
Gas, larceny of 200
General Gaol Delivery, commission
of 423, 424
Grand jury
its history 454
its functions and procedure 456
qualifications of 455
need not be unanimous 455, 479
criticism of 456
Grass
damage to 167
taking away 198
Habeas Corpus Act 15, 471
Handwriting, proof of 378
Habitual criminal 509
Hawkers
licence necessary 321
Hearsay
definition of 863
why excluded 365
history of 364
rei gestae 365
contemporary complaints 366
exceptions to rule excluding hear-
say 367—373
exceptions peculiar to criminal
law 388—390
Heedlessness 134
Heirlooms, larceny of 199
High Court of Justice 420
Highway
non-repair of 9
non-repair by infants 51
Homicide (see Suicide, Murder, Man-
slaughter)
justifiable, defined 102
forms of 103
excusable, defined 106
„ forms of 107, 108
Homicide (cont.)
in effecting arrest 103, 154, 442,
443, 444
in resisting arrest 442, 444
House of Lords
as Court of Appeal 415, 494
as court of first instance 416
position of the bishops 417, 419
Housebreaking
contrast with burglary 178
punishnieut 178
Husband and wife (see also Com-
petency)
are one person 72
confidences between 376
Hypnotism 57
Ignorance (see Mistake)
Impeachment 417
Imprisonment
forms of 483
statistics of 484
limitation of 482
in default of sureties 483
in civil cases 484
defects of 510
Inchoate crimes 79
Incitement 79
Indictment
defined 457
the commencement 457
the venue 457
the statement
construction of 459
certainty necessary 458, 460, 467
technicalities necessary 460
amendment of 459
duplicity of counts 461
plurality of counts 461 — 462
the conclusion 462
divisible averments 462
conviction on, though crime not
proved 463, 464
forms of 514
" opening " the 476
motion to quash 468, 489
demurrer to 468, 490
534
Index
Indictment {cont.)
restrictions upon freedom of in-
dictment 464, 465
Indirect evidence (see Circumstantial
evidence)
Indirect intention 133, 134
Industrial schools
for boys convicted 484
for boys in criminal surroundings
486
Inebriates 509
Infants (see also Children, Boys)
criminal responsibility of 49, 50,
51
Information
in summary procedure 430, 431
in ordinary procedure
by Attorney General 454
by Master of Crown Office 421,
454
to a magistrate 440
Injunctions 10
Insanity
medical and legal views 52
degrees of 53
McNaugbten's case 53
judicial test of 54
insane delusions 54
of emotions and will 55
insane impulses 56
kleptomania 57
hypnotic suggestion 57
"affective" 59
produced by intoxication 60
form of verdict 58, 59
subsequent to crime 59
Intention
not punishable 36
Austin's view of 49, 134
indirect 133, 134
common to several wrongdoers 139
to hurt 134
Interest
declarations against 372
incompetency for 374
International Law
ofienoes against 315, 319
Intoxication
responsibility for 59
involuntary 60
causing mistake of fact 61
as disproving intent 61
Italian criminologists 50.")
Judf.'racnt 481
motion in arrest of 490
orders after 486
reversal of 490, 491
Judicature Act 17
Judicia publica 5
Jurisdiction (see also Criminal juris-
diction, Summary procedure)
objections to 467
plea to 468, 469
Jury (see Grand jury, Petty jury)
Justices of the peace
appointment of 426
their executive functions 440, 442
their summary jurisdiction 428 —
436
preliminary examination by 446 —
452
trials at Quarter Sessions 424, 425
appeals at Quarter Sessions 425,
427
Justification
in libel 468
King (see also Treason)
exempt from criminal liability 78
King's Bench Division
its jurisdiction 421, 422, 436, 437
Kleptomania 57
Larceny (see also Theft)
history of 182
definition of 183
the Taking 183
involves change of possession
183
by wife or husband 184, 405
by servant 185
constructive 185
the Carrying away 187, 239
Index
535
Larceny {cont.)
by bailees 187
"breaking bulk" 188
bailees now liable 189
proof of appropriation 191
pawning by bailee 191
the Ownership 192
corpses 192
derelicts 192
animals ferae naturae 193, 239
creation of, by taking 195
continuous intent 195, 198
undiscoverable owner 196, 212
limited owner 196
the Subject 197
things real 198
larceny after severance 198, 239
things quasi-real 199
title deeds 200
gas and electricity 200
the Value 200
base animals 201
dogs 201
documents of title 202
the Claim of right 203
illegal distraint 204
gleaning 204
mistaken claim 204
owner's consent 205
consent through fear 206
larceny by a trick 206
unilateral mistake 208
consent through fraud 207
larceny or false pretences 207
conviction for false pretences 4C3
conditional consent 208
consent of owner's agent 209
the Intent 210
borrowing insufficient 210
borrowing and pawning 211
lucri causa unnecessary 212
time of appropriation 218
trespassory possession 213
liability of finder 214
mutual mistake 215
"grand" and "petty" larceny 218
punishment 219
Larceny {cont.)
aggravated larceny 219
from ship or house 219
from the person (see also Rob-
bery) 219
by clerk or servant 220
of post-letters etc. 221
conviction for simple larceny 462
Quasi-larceny (see separate head)
Eestitution of stolen goods (see
separate head)
evidence of theft 326
summary jurisdiction in 434
arrest for 444, 445
joinder of counts 462
indictment for, not barred by
acquittal of burglary 471
distinguished from embezzlement
186
conviction for, on indictment for
embezzlement 233, 463, 471
Leading questions 349 — 351
Libel
defined 307
civil and criminal 307
principles common to both 307^
310
" malicious " publication 308
presumption of publication 309
defamatory meaning 309
privileged publication 309
functions of judge and jury 310
principles peculiar to criminal law
310
publication to person defamed
310
truth as a defence 311, 468
public benefit 311
truth not pleadable at pre-
liminary examination 448
except by newspapers 448
libelling a class 312
oral utterances 313
libelling the dead 312
blasphemous and seditious libels
313
punishment of 313
536
Index
Libel {cont?)
by husband on wife 73
not at Quarter Sessions 425
when summarily triable 433
inforinatious for 454
Vexatious Indictments Act 465
prosecutor's liabihty for costs 488
Lord Hif,'h Steward
at trials in House of Lords 41 G
Court of 418
Machinery, destroying 166
Maim, meaning of 146
Maine, Sir Henry
on archaic crime 21
on Eoman quaestiones 24
on grand juries 456
on punishment 499
Malice (see also Malicious damage)
its wide legal sense 115
in manslaughter 115
"aforethought" 124, 132, 139
universal 134
presumption of 131), 833
in statutory offences 147, 148, 164
proof of 148, 164
in libel 308
Malicious damage
exceeding £5 166
under £5 166
inappreciable 1(57
arrest for 444, 445
Mandamus 436
Manslaughter
law of Numa 22
definition of 115, 125
"voluntary" defined 115
practical joking 115
no premeditation 115
provocation 116, 117, 119
words insufiBcient 118
sudden combat 118
resumption of quarrel 119
"involuntary" defined 119
in unlawful act 120
by omission 120
parent's duty to child 121, 122
Manslaughter (cont.)
by negligence 123
alternatives of culpability 123
on indictment for murder 462
autrefois acquit of murder 471
punishment of 124
Market overt (see Restitution)
Master, seldom liable for servant's
crimes
by statute 45, 46, 47
at common law 46
chastising apprentice 135
Mens rea
essential to crime 39
Prof. Clark's analysis 39, 40
proof of 41
intention to commit a wrong 41
is it a legal or a moral wrong
41, 42
the gravest mens rea 42
effect of statutes 43
the least grave meits rea 43
construction of statutes 47, 48, 304
absence of 49
intoxication disproving 61
proveable only by circumstantial
evidence 333
presumptions as to 333
proved b}' evidence of other crimes
355
Middlesex
jurisdiction of King's Bench 421
Mignonette Case (the) 76, 105
Mineral ore, theft of 222
Misadventure, homicide by 108
in correcting children 108
in lawful game 110
Misdemeanor
obsolete differences from felony 93
existing ditto 94
no accessories in 83
proposed abolition of distinction
100
informations for 421, 453
arrest for 442
conviction for, upon indictment
for felony 463
Index
537
Misprision of felony 277
Misprision of treason 277
committed abroad 413
burden of proof 345
two witnesses required 385
limit of time 410
trial of peers 417, 419
Mistake, as affecting Will 65
due to superstition 67
due to religious belief 67
of law 67
Mistrial 490
Money (see Restitution)
Motion to quash indictment 468,
489
Murder
Anglo-Saxon law 22
Mosaic law 22
law of Numa Pompilius 23
history of the word 124
benefit of clergy in 124, 481
definition of 125
killing by remote act 125
by perjury 126
by mental shock 126
interposition of third parties
127
reasonable creature 128
in being 128
birth defined 128
live birth 129
injury before birth 129
concealment of birth 129
the King's peace 130
malice aforethought (see Malice)
132
year and a day 140
punishment of 140, 482
petit-treason abolished 141
conspiracy to 141
attempt to 141
jurisdiction not territorial 141
circumstantial evidence 326
the indictment 460
conviction for manslaughter 462
■conviction for concealment of birth
4G3
Murder (cont.)
autrefois acquit or convict 468,
470, 471
Necessity, as a defence 35, 74—77, 105
Negligence
manslaughter by 123
contributory 128
in arson 163
Negotiable securities (see Quasi
larceny and Restitution)
New trial 422
Nuisance
master's liability for servant 46
pardon for 15, 495
Oath
evidence upon 375
affirmation allowed 375
as to children 375, 386
Objections to indictment
how raised 467
when to be raised 476
Occasional court-house 429
Officials
crimes abroad by 421
Ordinary procedure, stages of 439
Outlawry, judgment of 488
Ownership
presumed from Possession 328
Oyer and Terminer, commission of
423, 424
Pardon
Crown's power of 15, 495, 514
limitations on 15, 495
plea of 469
not to impeachment 495
in penal actions 16, 495
advantages of the power 495
Parent's right to chastise 50, 108,
135, 154
duty to provide food 121
and medical aid 122
ParUament, High Court of 415
Partners
thefts by 24, 196
538
Index
Pawnbroker '227
Pedigree 370
Peers, trial of 416, 418
Peine forte et dure 4C>7
Penal actions 7, 8, 10, 12, 15
Penal servitude
history of 482
its character 482
statistics 483
Perjury
killing by, not murder 126
history of 293
definition of 294
codification of 294
punishment of 294
false affirmatiou 295
judicial proceeding 295
exterritoriality of 295
non-judicial 295
materiality of testimony 296
\rilfulness of 298
minimum of proof 299, 385
not at Quarter Sessions 425
Vexatious Indictments Act 464
Petty jury
its history 473
qualifications for 474
challenges 475
" standing by " 475
forms of oath 476
separating during trial 476
unanimity essential 479
must take the law from judge 479
Petty" offences (see also Summary
procedure)
when indictable 435
appeal from conviction for 436
Petty sessional court 429, 446
Petty sessional court-house 429
Petty sessions
constitution and functions 42G —
436
appeals from 436 — 433
Piaculiarity 35
Piracy
at common law 315
statutory piruciea 316
Piracy (cont.)
punishment of 316
jurisdiction in 411
Plantations, setting fire to 163
Plants
damaging 167
stealing 222
Pleas
to the jurisdiction 468
in abatement 468
general plea in bar 468
special pleas in bar 468 — 471
Poison
feloniously administering 146
unlawfully administering 150
not an assault 153
Police constable (see Constable)
Police foice 440
Poor Prisoners Act 517
Possession
infringement of, in larceny 183
by wife 184
constructive change of 185
Poverty as causing crime 501
Praemunire 278
election to bishopric 279
sending prisoner outside realm 27&
meeting of Scotch peers 279
punishment 2'50
Preliminary examination
before whom held 446
attendance of accused 446
attendance of witnesses 446
the open court 447
proceedings 447 — 452
witnesses' depositions 448, 450,
451
defendant's statement 448, 450
binding over 452
French practice 496, 497
Presentment 454
Presumptions
a substitute for evidence 325
juris et de jure 325
juris 325
facti 325
of innocence 326, 327, 330, 381
Index
539
Presumptions (cont.)
continuance of life 326, 329
against immorality 327
omnia rite 327
of ownership 328
of continued existence 328
of custom 329
Preventive detention 509
Primary evidence (see Best evi-
dence)
Principal (see also Agent)
in the first degree 84
innocent agent 84
joint principals 85
Prisoner's evidence (see Compe-
tency)
Privilege
criminating questions 376
title-deeds 376
domestic confidences 376
solicitor and client 377
Probation ofiicers 512
Procedure (see Criminal procedure,
Summary procedure, Ordinary
procedure)
Prosecuting counsel
duty of 476, 477
Prosecution
meaning of 453
costs of 449
Public law 4
Punishment
the object of criminal procedure
11, 17
distinguished from coercion 11, 13
prevention its main object 31
deterrence by 30
retaliation 32
retribution 33, 34, 35
temptation as affecting 34
Bill of Rights 481
forms of 482
after previous conviction 483
minimum punishments 485
preventive measures 485
considerations determining 500
individualisation of 507
Quarter Sessions
county, city, and borough 424
limits of jurisdiction 425
appellate jurisdiction of 425
Quashing an indictment
motion to quash 468, 470
after certiorari 423, 436
Quasi-larceny
common-law rules of larceny apply
221
subjects of 222
summary procedure in 434
Eape
conviction for indecent assault on
indictment for 463
Rashness 134
Realty (see Larceny)
Reasonable doubt 383
Receiving stolen property
definition of offence 252
receiver must get possession 252
owner recovering possession 263
guilty knowledge 253
by wife 72
receiving goods stolen abroad 413,
414
indictment for 254
punishment 254
summary procedure for 434
Recent possession 329
Recidivism 508
Recognizances
of witnesses 452
Record (see also Writ of error)
contents of 415
errors apparent on 415
Ee-examination 348
Reformation 508
Reformatory schools 484
Relevancy
what facts are relevant 352
acts of others 352
other acts of a party 353
other crimes of a prisoner 353 — 355
witness's bad character 356
contradicting a witness 359
540
Index
Replication 468
Reprieve 49-i
Respite 494
Restitution of stolen property
theft no cljange of owuerehip 222
exceptions 224—227
order for 224, 251, 486
compensation to purcliaser 227
Police Property Act 227
Riot (see Unlawful assembly)
Robber}' 219
armed 220
cognate oilences 220
conviction of assault 463
Rogues and vagabonds 322, 346
incorrigible rogues 323
Romilly, Sir Samuel 502
Rout (see Unlawful assembly)
Sacrilegious burglary 170, 179
Sanctions
nature of civil and criminal 12,
13
remissibility of 14, 15, 16
in archaic codes 20, 21
Secondary evidence (see Best evi-
dence)
Sedition
imprisonment for 483
Self-defence (see Defdiice)
Sentences (see also Funishment)
extenuations of 50 1
Sexual offences, criminal prohibition
of 28, 143
Sidgwick, Prof.
on punishment 33
Slave, murder of 131
Slave-trade 316
" Sleeping-out " 322
Special jury 475
Standing mute 467
Stephen, Serjt.
definition of crime 4
classification of crimes 102
Stephen, Sir James
relation of crime and tort 20
resentment and punishment 32
Stipendiary majristrate 42R
Stolen goods
receiving 252 — 2.^4
goods stolen abroad 413, 414
presumption from possession 329
Subjection
public civil 70, 71
private civil 71, 72
Suicide
when a felony 112
original punishment 112
modern punishment 113
attempt to commit 111
instigation to commit 114
increase of 114
Summary procedure (see also Petty
Sessions)
constitution of court 428, 429
limit of time 410, 428
claim to land 435
place of meeting 429
course of proceedings 429, 430
in civil cases 430
in criminal cases 431
absence of defendant 432
justices' discretion 432
costs 430, 435
damages 433
for indictable offences 433 — 435
Summing-up of judge 478
Summons
to witness 429
to defendant 431, 432, 446
Sureties
for good behaviour 486
imprisonment for not finding 483
Temptation as affecting punishment
34
Territoriality of crime (see Criminal
jurisdiction)
Theft (see also Larceny, Quasi
larceny. False preleuces, Em-
bezzlement)
in Roman law 181
liraclon's definition 181
forms of 237
Index
541
Theft {cont.)
proposed definition 239
arrest for 444, 445
Time
in miirder 140
no limitation of time 409
exceptions 410
summary procedure 410, 428
Title-deeds, theft of 222
Tort
its relation to crime 19, 20
evolution of crime out of 21, 22, 23
principal and agent 87
mental element in 39
action of felony 96
causing death by 120
conspiracy to commit 289
Transportation 482
Treason, high
at common law 265
by statute 265
compassing the King's death
265—267
violating the King's consort 268
levying war 268, 269
adhering to King's enemies 269
slaying the Chancellor, etc. 270
counterfeiting seals or money
270
opposing Act of Settlement 270
judicial constructions of statute
270, 272
overt act 266
constructive treasons 271 — 273
allegiance of aliens 271
modern aspect of treason 272
treason-felony 274
treason abroad 413
two witnesses required 275, 385,
474
prisoner's privileges 275
limitation of time 275, 410
former incidents of punishment
276
forfeiture for 277
costs in 95
accessoried 83
Treason {cont.)
trial of peers 417, 419
misprision of (see Misjrrisicm)
Treason, petit 141, 264
Trees, damaging 167
Trial
of peers 416, 418
upon impeachment 417
by jury 472—479
course of proceedings at 476 —
479
of co-prisoners 478
at bar 422
Trustees
frauds by 24, 235, 238, 425
statutory safeguards 236
Unlawful assembly
what constitutes it 280
unlawful purpose 281
causing alarm 281, 282
disturbance of lawful assembly
282
dispersal of 283
rout 283
riot 283
riotous assembly 284
Biot Act 410
Army regulations 285
suppressing riots 286
Vaccination Act 483
Vagrancy
history of 320
idle and disorderly persons 321
rogues and vagabonds 322, 346
incorrigible rogues 323
wife a witness 405
arrest for 444, 445
Valuable securities, theft of 222
Venire de novo 491
Venue 457
Verdict (see also Indictment)
must be unanimous 479
special or general 479
jury discharged without 470
statistics 480
542
Index
Vexatious Indictments Act 1G4. 465,
488
Volition, power of 40, 49
Warrant (see also Arrest)
apprehension of witness 429
apprehension of defendant 431,
432, 441
remanding defendant in custody
450
Weak-minded criminals 609
W6r-gild 22, 106
Wliately Ahp.
on punishment 30
Wife
her subjection to husband, a de-
fence 71
larceny by 184
receiving by 72
sheltering husband 72
evidence by wife or husband of
prisoner (see Competency)
Will
Blackstone and Austin on 49
absence of 49 — 65
not directed to the deed 65 — 69
overborne by compulsion 70
the King's 77
Witchcraft
proof of 382
Witness
changes in mode of giving evidence
473—474
examination of 347
hostile 350, 357
speaks to memory only 351
expert 351
modes of discrediting 356—359
when his answer final 358
evidence to rebut defence 478
competency of 374
oath or affirmation 375
need not criminate himself 376
need not produce title deeds 376
taking evidence abroad 407
compelling attendance 429, 446
depositions of 448
binding over to appear at trial
452, 453
Crown witnesses named on back
of indictment 472
Wounding
defined 145
felonious 145
malicious 146
of cattle 168
Young jiersons
summary trial of 434
reformatory school 484
CAMnniDOK ; rniNTED by jonx clay, m.a. at the ctnivkrritt rnnss.
UC SOUTHERN REGIONAL LIBRARY FACILITY
AA 000 761 623 8