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    "source_key": "britannica_1911",
    "source_title": "Encyclopaedia Britannica (1911)",
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    "chunk_id": "1911:misdemeanour:c228421d4419",
    "title": "MISDEMEANOUR",
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    "verified_text": "misdemeanour, &c. here it is enough to say that the distinction is a result of history and is marked for abolition and reclassification. treason and most felonies and some misdemeanours would under foreign codes fall under the head of crime. misdemeanour, roughly but not exactly, corresponds to the french _delit_, and summary offence to _contravention_. elements of criminal responsibility. in all systems of criminal law it is found necessary to determine the criterion of criminal responsibility, the mental elements of crime, the degrees of criminality and the point at which the line is to be drawn between intention and commission. the full definition of every crime contains expressly or by implication a proposition as to a state of mind, and in all systems of criminal law, competent age, sanity and some degree of freedom from coercion, are assumed to be essential to criminality; and it is also generally recognized that an act does not fall within the sanction of the criminal law if done by pure accident or in an honest and reasonable belief in circumstances which if true would make it innocent; e.g. when a married person marries again in the honest and reasonable but mistaken belief that the former spouse is dead. honest and reasonable mistake of fact stands on the same footing as absence of the reasoning faculty, as in infants, or perversion of that faculty, as in lunatics. besides the elements essential to constitute crime generally, particular mental elements, which may differ widely, are involved in the definition of particular crimes; and in the case of statutory offences adequately and carefully defined, the mental elements necessary to constitute the crime may be limited by the definition so as to make the prohibition of the law against a particular act absolute for all persons who are not infants or lunatics. as a general rule of english law, it is enough to prove that the acts alleged to constitute a crime were done by the accused, and to leave him to rebut the presumption that he intended the natural consequences of the acts by showing facts justifying or excusing him or otherwise making him not liable. children are conclusively presumed to be incapable of crime up to seven years of age; and from seven to fourteen the presumption is against the capacity, but is not absolute. under the common law, insanity was an absolute answer to an accusation of crime. since 1883, where insanity is proved to have existed at the date of the commission of the incriminated acts, the accused is found guilty of the acts but insane when he did them, and is relegated to a criminal lunatic asylum. there was also at common law a presumption that a married woman committing certain crimes in the presence of her husband did so under his coercion. but under modern decisions and practice the presumption has become feeble almost to inanition (_r_. v. _mary baines_, 1900, 69 l.j. q.b. 681). distinctions are also drawn between degrees of guilt or complicity. english criminal law punishes attempts to commit crime if the attempt passes from the stage of resolution or intention to the stage of action, when the completion of the full offence is frustrated by something other than the will of the accused. except in the case of attempt to commit murder, which is a felony, attempts to commit a crime are punished as misdemeanours. it also punishes the solicitation or incitement of others to commit crime, as a separate offence if the incitement fails, as the offence of being accessory before the fact or abettor if the offence is committed as a result of the incitement; and it punishes persons who, after a more serious crime--felony--has been committed, do any act to shield the offender from justice. in the case of the crimes described as felonies the law distinguishes between principals in the first or second degree and accessories before or after the fact. in the case of misdemeanours the same punishment is incurred by the principal offenders, and by persons who are present aiding and abetting the commission of the offence, or who, though not present, counselled or procured the commission of the offence (see accessory). besides these degrees of crime there is one almost peculiar to english law known as conspiracy, i.e. an agreement to commit crime or to do illegal acts (including interference with the due course of justice), which is punishable even if the conspiracy does not get beyond the stage of agreement. the exact nature of this form of crime and the propriety of abolishing it or limiting its scope have been the subject of much controversy, especially with reference to combinations by trade unions. the english law does not, but most european laws do, allow the jury to reduce the penalty of an offence by finding in their verdict that the commission of the offence was attended by extenuating circumstances; but when the jury recommend to mercy a person whom they find guilty the judge may give effect to the recommendation or report it to the home office. in systems of criminal law derived from england the forms of crime or degrees of complicity above stated reappear with or without modification, but as to conspiracy with a good deal of alteration. in the indian penal code, for instance, conspiracy is limited to cases of treason (s 121 a), and when it goes beyond agreement in the case of other offences it is merely a form of abetment or participation (s 107). definitions of particular crimes. the criminal law of england[1] is not codified, but is composed of a large number of enactments resting on a basis of common law. a very large part is reduced to writing in statutes. the unwritten portion of the law includes (1) principles relating to the excuse or justification of acts or omissions which are prima facie criminal, (2) the definitions of many offences, e.g. murder, assault, theft, forgery, perjury, libel, riot, (3) parts of the law relating to procedure. the law is very rich in principles and rules embodied in judicial decisions and is extremely detailed and explicit, leaving to the judges very little latitude of interpretation or expression. so far as the legislature is concerned there is an absence of systematic arrangement. the definitions of particular crimes are still to be sought in the common law and the decisions of the judges. the consolidation acts of 1861 for the most part leave definitions as they stood, e.g. the larceny act 1861 does not define the crime of larceny. the consequence is that exact definitions are very difficult to frame, and the technical view of a crime sometimes includes more, sometimes less, than it ought. thus the crime of murder, as settled by the existing law, would include offences of such very different moral gravity as killing a man deliberately for the sake of robbing him, and killing a man accidentally in an attempt to rob him. on the other hand, offences which ought to have been criminal were constantly declared by the judges not to fall within the definition of the particular crimes alleged, and the legislature has constantly had to fill up the _lacunae_ in the law as interpreted by the judges. jurisdiction. the jurisdiction to deal with crime is primarily territorial, and can be exercised only as to acts done within the territory or territorial waters, or on the ships of the law-giver. _extra territorium jus dicenti impune non paretur._ no state will enforce the penal laws of another nor permit the officer of another state to execute its laws outside its own territory. but international law recognizes the competence of a state to make its criminal law binding on its own subjects wherever they are, and perhaps even to punish foreigners who outside its territory do acts which menace its internal or external security, e.g. by dynamite plots or falsification of coin. apart from extradition arrangements the national law cannot reach such persons, be they citizens or aliens, until they come within the territory of the state whose law has been broken. the codes of france, germany and italy make the penal law national or personal and not territorial. in some british colonies whose legislatures have a derived and limited legislative authority, indirect methods have been taken to deal within the colony with persons who commit offences outside its territory. throughout the development of the english criminal law it showed and retains one particular characteristic that crime was treated as local, which means not merely that the common law of england was limited to english soil, but that an offence on english soil could be \"inquired of, dealt with, tried, determined and punished\" only in the particular territorial division of england in which it was committed, which was and is known as the venue (q.v.). each township was responsible for crimes within its boundaries, a responsibility made effective by the \"view of frankpledge,\" now obsolete, and the guilt or innocence of every man had to be determined by his neighbours. this rule excluded from trial by the courts of common law, treasons, &c. committed by englishmen abroad and piracy; and it was not till henry viii.'s reign (1536, 1544) that the common-law mode of trial was extended to these offences. the legislature has altered the common law as to numerous offences, but on no settled plan, and except for a bill introduced about 1888, at the instance of the 3rd marquess of salisbury, no attempt has been made to make the english criminal law apply generally to subjects when outside the realm; and in view of the complicated nature of the british empire and the absence of a common criminal code it has been found desirable to remain content with extradition in the case of crimes abroad, and with the provisions of the fugitive offenders act 1881 in the case of criminals who flee from one part to another of the empire. the localization in england of crime, and the procedure for punishing it, differ largely from the view taken in france and most european countries. the french theory is that a frenchman owes allegiance to the french state, and commits a breach of that allegiance whenever he commits a crime against french law, even although he is not at the time within french territory. in modern days this theory has been extended so as to allow french and german courts to punish their subjects for crimes committed in foreign countries, and by reason of this power certain countries refuse to extradite their subjects who have committed crimes in other states. offences on the high seas. the principle of the french law, though not expressly recognized in england, must be invoked to justify two departures from the english principle--(1) as regards offences on the high seas, and (2) as regards certain offences committed outside the united kingdom. in early days offences committed by englishmen on the high seas were punished by the lord high admiral, and he encroached so much on the ordinary courts as to render it necessary to pass an act in richard ii.'s reign (15 rich. ii. st. 2, c. 3) to restrain him. offences committed on land outside england. misdemeanours committed by public officers in colonies. in the time of henry viii. (1536, 28 hen. viii. c. 15) an act was passed stating that, as the admiral tried persons according to the course of civil law, they could not be convicted unless either they confessed or they or the witnesses were submitted to torture, and that therefore it was expedient to try the offences according to the course of the common law. under that act a special commission of oyer and terminer was issued to try these offences at the old bailey, and english law was satisfied by permitting the indictment to state that the offence was committed on board a ship on the high seas, to wit in the county of middlesex. since 1861 these special commissions have been rendered unnecessary by the provision (contained in each of the criminal law consolidation acts of that year) that all offences committed on the high seas may be tried as if they had been committed in england. as regards offences on land, it was found necessary as early as the reign of henry viii. (1544) to provide for the trial in england of treasons and murders committed on land outside england. this was largely due to the constant presence in france of the king and many of his nobles and knights, but the aid of this statute had to be invoked in 1903 in the case of lynch, tried for treason in south africa. the latest legislation on the subject was in 1861 (offences against the person act, s 9), and any murder or manslaughter committed on land out of the united kingdom, whether within the king's dominions or without, and whether the person killed were a subject of his majesty or not, may be dealt with in all respects as if it were committed in england. the jurisdiction has been extended to a few other cases such as slave trade, bigamy, perjury, committed with reference to proceedings in an english court, and offences connected with explosives. but these offences must be committed on land and not on board a foreign ship, because if a man takes service on board a foreign ship he is treated for the time as being a member of the foreign state to which that ship belongs. the principle has been also extended to misdemeanours (but not to felonies) committed by public officers out of great britain, whether within or without the british dominions. thus a governor or an inferior officer of a colony, if appointed by the british government, may be prosecuted for any misdemeanour committed by him by virtue of his office in the colony; and cases have occurred where governors have been so prosecuted, such as that of general picton at the beginning of the 19th century, and of governor eyre of jamaica in 1865, and the attempt to prosecute governor maccallum of natal in 1906. as a corollary to the system of \"capitulations\" applied to certain non-christian states in asia and africa, it has been necessary to take powers for punishing under english law offences by british subjects in those states, which would otherwise go unpunished either by the law of the land where the offence was committed or by the law of the state to which the offender belonged (jenkyns, _foreign jurisdiction of the crown_). punishment. an essential part of the criminal law is the punishment or sanction by which the state seeks to prevent or avenge offences. see also under criminology. here it is enough to say that during the 19th century great changes have been made throughout the world in the modes of punishing crime. in england until early in the 19th century, punishments for crime were ferocious. the severity of the law was tempered by the rule as to benefit of clergy and by the rigid adherence of the judges (_in favorem vitae_) to the rules of correct pleading and proof, whereby the slightest error on the part of the prosecution led to an acquittal. bentham pointed out that certainty of punishment was more effective than severity, that severe punishments induced juries to acquit criminals, and that thus the certainty of punishment was diminished. but his arguments and the eloquence of sir samuel romilly produced no effect until after the reform of parliament in 1832, shortly after which statutes were passed abolishing the death sentence for all felonies where benefit of clergy existed. the severity of capital sentences had already been modified by the pardoning power of the crown, which pardoned convicts under sentence of death on their consenting to be transported to convict settlements in the colonies. (see deportation.) for some years this was only done by the consent of the convict, who agreed to be transported if his death sentence was remitted, but in 1824, when a convict refused to give this consent, parliament authorized the crown to substitute transportation for a death sentence, and the same course was adopted in ireland in 1851 when some treason-felony prisoners refused commutation of their sentence to transportation. the punishments now in use under the english law for indictable offences are:-- 1. death, inflicted by hanging, with a provision that other modes of execution may be authorized by royal warrant in cases of high treason. 2. penal servitude, which in 1853 was substituted for transportation to penal settlements outside the united kingdom. the minimum term of penal servitude is three years (penal servitude act 1891), and the sentence is carried out in a convict prison, in the united kingdom, but there is still power to send the convicts out of the united kingdom. 3. imprisonment in a local prison, which must be without hard labour unless a statute specially authorizes a sentence of hard labour. at common law there is no limit to a term of imprisonment for misdemeanour; but for many offences (both felonies and misdemeanours) the term is limited by statute to two years, and in practice this limit is not exceeded for any offence. the treatment of prisoners is regulated by the prison acts and rules. 4. police supervision, on conviction or indictment of felony and certain misdemeanours after a previous conviction of such offences. prevention of crimes act, c. 112, ss 8, 20. 5. pecuniary fine, a punishment appropriate only to misdemeanours and never imposed for a felony except under statutory authority, e.g. manslaughter (offences against the person act, s 5). the amount of the fine is in the discretion of the judge, subject to the directions of magna carta and the bill of rights and of any statute limiting the maximum for a particular offence. 6. whipping was a common law punishment for misdemeanants of either sex. under the present law the whipping of females is prohibited, and the punishment is not inflicted on males except under statutory authority, which is given in the case of certain assaults on the sovereign, of certain forms of robbery with violence or assaults with intent to commit felony (garrotters act 1863), of incorrigible rogues, larceny and malicious damage, and certain other offences by youthful offenders. 7. recognizances (caution) to keep peace and be of good behaviour, i.e. a bond with or without sureties creating a debt to the crown not enforceable unless the conditions as to conduct therein made are broken. this bond may be taken from any misdemeanant, and, under statutory authority, from persons convicted of any felony (except murder) falling within the criminal law consolidation acts of 1861. 8. in the case of any offence which is not capital the court, if it is a first offence or if any other grounds for mercy appear, may simply bind the offender over to come up for judgment when required, intimating to him that if his conduct is good no further steps will be taken to punish him. except in the case of the death penalty, the court of trial has a discretion as to the _quantum_ of a particular punishment, no minimum being fixed. in the case of offences punishable on summary conviction the maximum punishment is always fixed by statute. it consists of imprisonment with or without hard labour, or a fine of a limited amount, or both. the imprisonment in very few cases may exceed six months. if the maximum exceeds three months the accused must be informed that he has a right, if he so elects, to be tried by a jury. where power is given to deal summarily with offences which under ordinary circumstances would be tried on indictment, the punishments are as follows (summary jurisdiction act 1879):-- (a) in the case of adults pleading guilty, imprisonment not exceeding six months without the option of a fine. (b) in the case of adults (consenting to be summarily tried), where the offence affects property not worth over forty shillings, imprisonment not over three months, or fine not exceeding l20. (c) in the case of young persons, between twelve and sixteen years, imprisonment not over three months, or fine not exceeding l10. (d) in the case of children under twelve, imprisonment not over one month, or fine not exceeding forty shillings. if the offence is trifling, the accused may be discharged without punishment, and under the first offenders act (1887) the justices have a discretionary power to forgo punishment. the justices have also the power, under the prevention of crime act 1908, in lieu of passing a sentence of penal servitude or imprisonment, to commit persons between the ages of sixteen and twenty-one to a borstal institution, for a period of detention ranging from one to three years (see juvenile offenders). in the criminal law of europe the scale of punishments is on similar lines in most states, and is more elaborate than that of england, and less is left to the discretion of the court of trial. the following examples will indicate the kind of punishments awarded under the french penal code. punishments are classified as (1) _afflictives et infamantes_, including death, _travaux forces a perpetuite ou a temps_, _deportation_, _detention_, _reclusion_; (2) _infamantes_, viz. banishment and civil degradation; (3) _peines en matiere correctionnelle_, viz. imprisonment in a house of correction (six days to five years), interdiction from certain civic rights, and fine. the punishments in no case have any effect to extinguish the civil claims of individuals who have suffered by the offence (arts. 6 and 55). special provisions are made for _recidivistes_, police supervision and first offenders (_loi berenger_). in the german code of 1872 the legal punishments are: (1) death; (2) penal servitude for life or for a term not exceeding fifteen years nor less than one year; (3) imprisonment with labour for a term not exceeding five years nor less than one day; (4) confinement in a fortress (terms same as for penal servitude but involving only withdrawal of freedom and supervision); (5) arrest for not more than six weeks nor less than one day; (6) fine (not less than three marks in the case of crimes or delicts nor one mark in case of petty offences). sentence of imprisonment is in certain cases followed by liability to be placed under police supervision for a term after release. in the case of a sentence of death or of penal servitude, the court may order forfeiture of civil privileges, and a condemnation to penal servitude permanently disqualifies for service in the army and public office (code pt. 1, chap. 1, arts. 13-40). under the italian code of 1889 (arts. 11-30) the punishments are (1) _ergastolo_ (for life); (2) _reclusione_ (from three days to twenty-four years), which involves hard labour and cellular confinement; (3) _detenzione_ (like term), which involves labour and at night separate confinement; (4) _confino_ (one month to three years), a form of banishment from the commune of origin or residence of the offender; (5a) fine (_multa_), from ten to ten thousand lire; (5b) _amende_, from one to two thousand lire; (6) arrest (one day to two years); (7) interdiction from public office; (8) suspension from professional calling. punishments (5b), (6) and (8) are applied only to contraventions, the others to crimes (_delitti_). the spanish law (_codigo penal_, title 3, chaps. 2 and 3) contains a general scale of punishments classified as afflictive, correctional, light and accessory. the first class begins with death and runs down through many forms of imprisonment to disqualification (_inhabilitacion_). the second includes forms of imprisonment, (_presidio_ and _prision_), and arrest, public censure and suspension from the exercise of certain offices or callings. the slight punishments are minor arrest and private censure. offenders in any of the three classes may also be fined or put under recognizance (_caucion_). the accessory punishments include payment of costs, degradation, civil interdiction. in england indictable offences (i.e. offences which must be tried by a judge and jury) are thus dealt with:-- tribunals. 1. courts of assize (sitting under old commissions known as commissions of assize, oyer and terminer, and general gaol delivery) are held twice or oftener in every year in each county and also in some large cities and boroughs. they are the lineal successors of the justices _in eyre_[2] of the middle ages; but they are now integral parts of the high court of justice. these courts can try any indictable offence presented by a grand jury for the district in which they sit. 2. for the counties of london and middlesex and certain adjoining districts, a special court of assize known as the central criminal court sits monthly. 3. in all counties and many boroughs the justices of the peace sit quarterly or oftener under the commission of the peace to try the minor indictable offences. (see quarter sessions, court of.) 4. the high court of justice in the king's bench division tries a few special offences in its original jurisdiction, and where justice requires may transfer indictments from other courts for trial before itself. 5. the court of criminal appeal has been instituted by the criminal appeal act 1907; to it all persons convicted on indictment have a right of appeal. (see appeal.) the substantive law as to crime applies in england to all persons except the reigning sovereign, and criminal procedure is the same for all subjects alike, except in the case of peers or peeresses charged with felony, who have the right of trial by their peers in the house of lords if it be sitting, or in the court of the lord high steward. special tribunals. there are in england no courts of a special character, such as exist in some foreign countries, for the determination of disputes between the governing classes themselves or with the governed classes, whether of a civil or criminal character. there are a few exceptional courts with criminal jurisdiction. the court of chivalry, which used to punish offences committed within military lines outside the kingdom, is obsolete. special tribunals exist for trying naval or military offences committed by members of the navy and army, but those members are not exempt from being tried by the ordinary tribunals for offences against the ordinary law, as though they were civilians. the naval courts can be held only on board a ship, and can as a general rule try only persons entered on the books of a king's ship. the military courts can only try persons who are actually members of the army at the time, and their authority is annually renewed by parliament, in consequence of the jealousy still felt against the trial of any man except by the ordinary courts of law. military and naval courts can try in any part of the world, and whenever the forces are in active service can try followers of the camp as if they were actual members of the forces. (see military law; martial law.) ecclesiastical courts. the ecclesiastical courts, which were formerly very powerful in england, and punished persons for various offences, such as perjury, swearing, and sexual offences, have now almost fallen into disuse. their authority over protestant dissenters from the established church was taken away by statute; their authority over lay members of the church of england has disappeared by disuse. occasionally suits are instituted in them against the clergy for offences either against morality or against doctrine or ritual. in these cases their sentences are enforced by penalties, such as suspension, or deprivation of benefice, or by imprisonment; which has replaced the old punishment of excommunication. procedure. a system of procedure, with the judicial machinery required to work it, may be created either by the direct legislative action of the supreme power or by custom and the action of the courts. both at rome and in england it was through usage and by the courts themselves that the earlier system was slowly moulded: both at rome and in england it was direct legislation that established the later system. (see bryce, _studies in history and jurisprudence_, 1901, ii. 334.) the characteristics of english criminal procedure which most distinguish it from the procedure of other countries are as follows:-- 1. it is litigious or accusatory and not inquisitorial (stephen, _prel. view cr. law_). it is for the prosecutor to prove by evidence the commission of the alleged offence. no power exists to interrogate the accused unless he consents to be sworn as a witness in his own defence, which since 1898 he may do. the right to cross-examine him even when he is so sworn is limited by law, with the object of excluding inquiry into his past character or into past offences not relevant to the particular charge on which he is being tried. 2. the forms of criminal pleading still in use are in substance framed on the lines of the old system of pleading at common law in civil cases, which was swept away by the judicature acts. criminal pleadings have, however, one peculiarity. indictments, being in form the presentment of a grand jury, could not be amended until provision for that purpose was made in 1851. (see indictment.) 3. criminal prosecutions are ordinarily undertaken by the individuals who have suffered by a crime. there is not in england, as in scotland and all european countries, a public department concerned to deal with all prosecutions for crime. the result is that the prosecution of most ordinary crime is left to individual enterprise or the action of the local police force or the justices' clerk. the attorney-general has always represented the crown in criminal matters, and in state prosecutions appears in person on behalf of the crown, and when he so appears has certain privileges as respects the reply to the prisoner's defence and the mode of trial. in the prosecution of offences acts of 1879, 1884 and 1908 there is to be found the nucleus of a system of public prosecution such as obtains in other countries in case of crime. under these acts the director of public prosecutions (up to 1908 an office conjoint with that of solicitor to the treasury) acts under the attorney-general, but unless specially directed he only undertakes a limited number of prosecutions, e.g. for murder, coining and serious crimes affecting the government. 4. where an indictable offence is supposed to have been committed the accused is arrested, with or without the warrant of a justice, according to the nature of the offence, or is summoned by a justice before him. on his appearance a preliminary inquiry is held for the purpose of ascertaining whether there is a prima facie case against him. the procedure is regulated by the indictable offences act 1848, and is entirely different from the procedure for summary offences. it may be, though usually it is not, held in private; it is an inquiry and not a trial; the justices have to consider not whether the man is guilty, but whether there is such a prima facie case against him that he ought to be tried. if they think that there is, they commit him to prison to wait his trial, or require him to give security, with or without sureties, to the amount named by them, for appearing to take his trial. if they think the charge unsubstantial they discharge the accused at once. the prosecutor in cases of felony may if he likes go before the grand jury whether the case has or has not been the subject of a preliminary inquiry, but in the case of many misdemeanours it is obligatory first to have a preliminary inquiry, as a protection against vexatious indictments. the grand jury. whether there has or has not been a preliminary inquiry before a magistrate, no person can be tried for any of the graver crimes, treason or felony, except upon indictment found by a grand jury of the county or place where the offence is said to have been committed or is by statute made cognizable. in olden days, and even now in theory, the grand jury inquire of their own knowledge, by the oath of good and lawful men of the neighbourhood, into the crime of the county, but in practice the charges against the accused persons are always first submitted to the proper officer of the court. the grand jurors are instructed as to their inquisition by a charge from the judge, as regards the indictments concerning which they are called upon to enquire whether there is a prima facie case to send them for trial to the petty jury. the grand jury must consist of not less than twelve, nor more than twenty-three, good and lawful men of the county. but any person who prefers an indictment is entitled to have it presented to the grand jury. officers of the court lay the indictments before the grand jury. the charges are then called bills, and if the grand jury considers that there is no prima facie case the foreman endorses the bill with the words \"no true bill,\" and it is then presented to the judge. the jury are then said to have ignored the bill, and if the person charged is in custody he is released, but is liable to be indicted again on better evidence. as a means of constitutional protection in times of monarchical aggression this practice had no doubt a great value, but in the present day, when few offenders are tried without a preliminary inquiry by justices, the functions of a grand jury are of secondary importance, and the jurors' time is perhaps needlessly occupied. the institution of the grand jury prevented the crown in the days of its great power from removing a person whom it wished to get rid of from among his neighbours, and placing him on trial in a strange place where the influence of the crown was greater. this is still true to a certain extent, as great injustice may be caused to a man by removing him from his neighbours and trying him at a distance from his friends, and from the witnesses whom he might call for his defence. in ireland, for instance, the greatest injustice might be done by removing an orangeman from belfast and trying him in a roman catholic county or vice versa. but it has its evils where the area from which the jurors are drawn is small, such as a town of a few thousand inhabitants. in that case a man charged, say, with fraud, may be protected by his friends from being properly punished for that fraud. but where justice requires, an order may be made for the trial of the offence in another county or at the central criminal court. in many colonies the scottish system has been adopted, by which the ordinary form of accusation is by indictment framed by the public prosecutor, and a grand jury is only impannelled in cases where an individual claims to prosecute an offence as to which the public officials decline to proceed. in england criminal informations by the attorney-general, or by leave of the court without the intervention of a grand jury, are permitted in cases of misdemeanour, but are now rarely preferred. coroner's courts. if a coroner's jury, on inquiring into any sudden death, finds that murder or manslaughter has been committed, that finding has the same effect as an indictment by a grand jury, and the man charged may be tried by the petty jury accordingly. the law and procedure of the coroner's courts are now regulated by the coroners act 1887. when there is a dead body of a person lying within the area of his jurisdiction, and there is reasonable cause to suspect that such person died a violent or unnatural death, or a sudden death of which the cause is unknown, or has died in prison, the coroner is entitled to hold an inquest, and if the verdict or inquisition finds murder or manslaughter, it is followed by trial in the same way as if the person accused had been indicted. trial by jury. when an indictment is found by the grand jury (twelve at least must concur) the person charged is brought before the court, the indictment is read to him, he is asked whether he is guilty or not guilty. if he pleads guilty he is then sentenced by the court; if he pleads not guilty, a petty jury of twelve is formed from the panel or list of jurors who have been summoned by the sheriff to attend the court. he is tried by these jurors in open court. the common law method of trial of crimes by a jury of twelve, native to english law, has been in modern times transplanted to european countries. it was not the original form of trial, for it was preceded by wager of battle (which was not finally abolished till 1819); and by ordeal, which was suppressed as to criminal trials in 1219 in consequence of the decree of the lateran council (1216). the first was allowed only on an appeal by an individual accuser; the second was resorted to on an accusation by public fame, which the accused was allowed to meet by submitting to the ordeal. it was after 1219 that trial by the jury of twelve (known as trial in pais) began to develop. at the outset the accused used to be asked how he would be tried, and could not be directly compelled to plead to the charge or to accept trial by a jury; which led to the indirect pressure known as the _peine forte et dure_, which fell into disuse after the revolution and was formally abolished in 1772. but it was not until 1827 that refusal to plead was treated as a plea of not guilty, entailing a trial by a jury, and some old-fashioned officials still ask the old question \"how will you be tried?\" to which the old answer was \"by god and my country.\" the original trial jury or inquest certainly acted on its own knowledge or inquiries without necessarily having evidence laid before it in court. the impartiality of the jurors was to some extent secured by the power of challenge. the exact time when the jury came into its present position is difficult accurately to define. on the trial before the petty jury the procedure and the rules of evidence differ in very few points from an ordinary civil case. the proceedings as already stated are accusatory. the prosecutor must begin to prove his case. confessions (which are the object sought by french procedure) are regarded with some suspicion, and admissions alleged to have been made by the accused are not admitted unless it is clear that they were not extracted by inducements of a temporal nature held out by persons in authority over him. during the spring assizes of 1877 a prisoner was charged with having committed a murder twenty years before, and the counsel for the prosecution, with the consent of the judge, withdrew from the case because the only evidence, besides the prisoner's own confession, was that of persons who either had never known him personally or could not identify him. the accused may not be interrogated by the judge or the prosecuting counsel unless he consents to be sworn as a witness. in this respect the contrast between a criminal trial in england and a criminal trial in france is very striking. the interrogation and browbeating of the prisoner by the judge, consistent as it may be with the inquisitorial theory of their procedure, is strange to english lawyers, accustomed to see in every criminal trial a fair fight between the prisoner and the prosecution, and not a contest between the judge and the prisoner. the accused may, if he choose, be defended by counsel, and if poor may get legal aid at the public expense if the court certify for it. he is entitled to cross-examine the witnesses for the prosecution and to call witnesses in his defence. at the conclusion of the evidence and speeches the judge sums up to the jury both as to the facts and the law, and the jury by their verdict acquit or convict. immediate discharge follows on acquittal; sentence by the judge on conviction. summary trials. justices of the peace may under many statutes convict in a summary manner (without the intervention of a jury) for offences of minor importance. the procedure for punishing summary offences is before two justices, or a stipendiary magistrate. this proceeding must not be confused with the preliminary inquiry already mentioned before justices for an indictable offence, nor with the procedure before justices in relation to civil matters, such as the recovery of small sums of money. the proceeding begins either by the issue of a warrant for the arrest of the person charged, in which case a sworn information must be filed, or by a summons directing the person charged to appear on a certain day to answer the complaint made by the prosecutor. the justices hear the case in open court; the person charged can make his defence either in person or by his solicitor or counsel, he can cross-examine the witnesses for the prosecution, call his own witnesses, and address the justices in his defence. the justices, after hearing the case, either acquit or convict him, and in case of conviction award the sentence. if the sentence is a fine, and the fine is not paid, the person convicted is liable to be imprisoned for the term fixed by the justices, not exceeding a scale fixed by an act of 1879, the maximum of which is one month. the imprisonment may be with or without hard labour. procedure for summary offences. of late years this summary jurisdiction of the justices has received very large extensions, and many offences which were formerly prosecuted as serious offences by an indictment before the court of assize or quarter sessions have, where the offence was a trivial one, been made punishable, on summary proceedings before justices, by a small fine or a short term of imprisonment. the extension of the jurisdiction of the justices is open to the observation that it deprives a person charged of the protection of a jury, and also that it throws upon him, if convicted, and upon the prosecution if there is no conviction, the cost of the proceedings. the former objection is much mitigated by the enactment made in 1879, that a person if liable on conviction to be sentenced to imprisonment for more than three months, or to a fine exceeding l100, can claim to be tried by a jury. but the objection as to the costs remains, and the payment of costs is often a very serious addition to the trivial fine; and it is anomalous that a person convicted of a trifling offence should bear the cost of the prosecution, while if he is convicted before a superior tribunal of the most serious offence he does not pay the costs. appeal. in english law until 1907, where a criminal case had been tried by a jury the verdict of the jury of guilt or innocence was final and there was no appeal on the facts. any considerable defect or informality in the procedure might be the subject of a writ of error. and if any question of law arose at the trial, the judge might, if he chose, reserve it for the opinion of the court for the consideration of crown cases reserved, by whom the conviction might be either quashed or confirmed. by the criminal appeal act 1907, a new court was established, to which any person convicted on indictment might appeal. (see appeal.) costs. the expenses of prosecution for crime in england are dealt with in the following manner. prosecutions for high treason and the cognate offence known as treason-felony are at the expense of the state, which alone undertakes such prosecutions. in the case of all other felonies and of many misdemeanours the expense of the prosecution falls on the local rate. in the case of other misdemeanours the expense falls on the prosecutor. where an offence is summarily prosecuted the costs are in the discretion of the court, which may order the accused to pay them, if convicted, or the prosecutor to pay on acquittal, or may leave the parties to pay their own expenses. on charges of felony and a few misdemeanours the court may order the accused person to pay the expenses of his prosecution in relief of the local rate. in a few cases, chiefly where the prosecution is vexatious, the court may order the prosecution to pay the expenses of the defence. the expenses of witnesses for the defence in any indictable offence may be paid out of the local rate when they have been called at the preliminary inquiry; and where the court in the case of a poor prisoner has certified that he should have legal aid, the expenses of the defence may be charged to the local rate. the local rate upon which the expenses fall is usually that of the county or borough in which the offence was committed; but sometimes is that of the place where the offence is tried. between 1852 and 1888 parliament reimbursed to the local authorities the expense imposed on the local rate. in 1888 the proceeds of certain taxes were set aside and handed over to the local authorities as a set-off to the expense incurred in prosecutions. in one class of case, offences committed in the admiralty jurisdiction, i.e. outside england, the treasury directly reimburses to the local authorities the expense incurred. under most, if not all, european codes, the state pays for the prosecution, subject to reimbursement by the accused, if the court so orders. non-british criminal procedure. the english system of criminal procedure is the basis of that of most of the states which form the united states of america, and, with few exceptions, of the procedure throughout the british empire. the french penal code and code of criminal procedure are substantially the model of all systems of continental criminal law. they were promulgated in 1811 by napoleon i., and although he called in the aid of the greatest french jurists, he guided, and occasionally even revised, their labours. the french codes have been improved upon by later european codes, and more especially by the italian penal code. all european codes have an opening chapter where the general principles of criminal law in its practical application are enunciated, such as, for instance, the rules that--(1) no person is liable to punishment for any act not expressly declared to be an offence; (2) no person can be punished for an act which by virtue of a subsequent law is declared not to be an offence; (3) whoever commits an offence within the kingdom is tried and punished according to the criminal law of the kingdom, and by the tribunals created for the administration of justice, to the exclusion of special tribunals created for temporary purposes. this rule really lays down that no citizen can be deprived of his own judges when he is accused of a criminal offence. (4) a citizen, although he may have been tried in a foreign country for an offence committed within the kingdom, can be retried according to the law of the kingdom. (5) extradition only applies to foreigners, not to citizens. the preliminary chapter is followed by the classification of offences according to the importance of the punishments the law assigns to them. the lowest degree of offence is denominated \"contravention.\" it applies mainly to the pettiest offences, or to infractions of police regulations, and can be punished by fine or by imprisonment under a week, or by both fine and imprisonment, limited to a week. next comes the \"_delit_,\" which includes all offences punished by imprisonment over a week and under five years. then, finally, we arrive at the \"_crime_,\" the highest form of offence in french criminal law. it includes all offences subject to a more severe sentence than the punishment assigned to a _delit_. all cases are held to be crimes where death, life-imprisonment with or without hard labour, deportation out of the kingdom, detention or seclusion in a fortress or other expressly assigned place, are the punishments mentioned by the law. a certain number of explanatory definitions follow, of which the most important concern _attempts_ to commit offences, and in \"crimes\" they are punishable if the execution of the attempt was only prevented by circumstances beyond the will of the offender, whilst in \"_delits_\" an attempt is not punishable as an offence unless the law specially provides that it should be punished. as regards \"contraventions,\" attempts not carried out are not held to be offences at all. accomplices are generally subject to the same punishment as the principal. old offenders (_recidivistes_) are subject to severer punishments. the usual exceptions as regards responsibility for crime, such as madness and extreme youth and _force majeure_, are to be found in all codes. the excuse of youth extends to all offenders under the age of sixteen, when the tribunal decides whether the offender has acted without \"discernment,\" and acquits where the discernment is not found, whilst one-half of the usual punishment is inflicted where discernment is found. foreign codes differ from the english law in allowing the injured party to claim damages in the criminal suit, appearing as _partie civile_. on another question there is a wide divergence on the continent of europe from english law. according to the law of england there is no prescription in criminal law (with a few exceptions created by statute). an offender is always liable to punishment whatever time may have elapsed since the committal of the offence. on the continent of europe the limitation of a judgment and sentence for a crime is twenty years; five years for a _delit_, and for a contravention two years. no proceedings can be taken as regards a crime after a lapse of ten years, whilst as regards a _delit_ the limit is three years, and two years for a contravention. there are three main differences between english criminal procedure and european criminal procedure. 1. a criminal prosecution directed on european criminal procedure at once passes into the hands of the state as an infringement of law which must be repressed, on the ground that the whole community bases its security on obedience to law. in england the repression of all minor crime is left to the injured party. 2. in england every criminal trial from beginning to end is, and has always been, public. preliminary inquiries into an indictable offence may be, but rarely if ever are, conducted in private. on the continent of europe, with rare exceptions, all preliminary proceedings in a criminal charge are secret. outside english-speaking countries this secret investigation continues more or less. but of the two systems, accusatory or inquisitorial--the first meaning the right of the accused to defend himself, the second meaning the right of the state to examine any legal offence in private in order to ensure the safety of society,--the accusatory is gaining ground in every country. in english-speaking countries it is an established law that an accused person should have the right of publicity of the proceedings and the right to defend himself by counsel and by witnesses. in europe the inquisitorial system is gradually being abandoned. perhaps the best code of criminal procedure in europe is that promulgated in austria in 1873. it followed a fundamental law of the empire which laid down _inter alia_ that all legal proceedings, civil or criminal, should be oral and public, and that the accusatory system in criminal cases should be adopted. germany followed this example. italy, holland. switzerland and spain have followed austria and germany as regards the preliminary investigation; italy and belgium have surrounded the accused with guarantees against arbitrary confinement before trial; holland has conferred upon the accused the right of seeing the adverse testimony and of being confronted with the witnesses, and, further, has formally insisted that no insidious questions, such as questions assuming a fact as true which is not known to be true, should be allowed. other countries still remain on the old lines. but everywhere, whether reform has actually been accomplished or not, there is a demand for even-handed justice, and a growing conviction that the accused should have all his rights, now that society is no longer in danger from undiscovered criminals and unpunished crime. even in france, the champion of the inquisitorial system, a change is being made. up to 1897 secrecy was imposed invariably in the preliminary investigation of crime, and was held necessary for the discovery and punishment of the offender. the _loi de l'instruction contradictoire_, december 8, 1897, however, was a long step towards complete justice in the treatment of the accused in the preliminary inquiry. the main reform is that the accused, after he has once appeared before the judge and a formal charge has been made against him, is entitled to the assistance of counsel, either chosen by himself or assigned to him if he is poor. if he is in prison he is allowed to communicate freely with his counsel, who is entitled to see all the proceedings, and in every appearance before the judge his counsel accompanies him. there are, however, certain limitations. the counsel cannot address the judge without leave, which may be refused, nor can he insist on any proceeding he thinks necessary in his client's interest. he can only solicit. he has no right to be present at the examination of witnesses, who continue to be interrogated by the judge alone and not in the presence of the accused; but he must receive twenty-four hours' notice of every appearance of the accused, and he is entitled to be present whenever his client, after the first formal appearance, comes before the judge. in england, as already pointed out, although the prosecution is in the name of the crown, and although a public prosecutor has been appointed, still as a rule it is conducted by the person injured as the person injured, or by the police. 3. in england the single-judge system is universal, save in appeal; on the continent of europe plurality of judges is insisted upon, save in the most trivial cases, where the punishment is insignificant. in most countries of the continent of europe the whole machinery for the prevention, investigation and punishment of crime, is conducted by what is called the _parquet_, which represents society as a collective unit and not the individual injured. the head of the whole parquet in france is the _procureur-general_, who holds equal rank with the members of the supreme court. under him there are procureurs-generaux attached to each of the courts of appeal, of which in france there are twenty-six, and under each of these subordinate procureurs there are procureurs (prosecutors) of a lesser degree. the next stage to the parquet is the _juge d'instruction_, who corresponds to the english magistrate, and is the most formidable personage in the whole system of french criminal law. he can detain and accuse a person in prison, can send for him at any time and ask him such questions as he pleases. after the first examination the prisoner is entitled, in most european countries, to the assistance of counsel, but the powers of counsel are so limited that the juge d'instruction has a complete discretionary power regarding the investigation of the case. the natural consequence of this procedure is that the preliminary investigation really decides the ultimate result, and the final trial becomes more or less a solemn form. ireland. the criminal law of ireland is to a great extent the same as that of england, resting on the same common law and on statutes which extend to both countries or are in almost the same terms, and is administered by courts of assize and quarter sessions, and by justices, as in england. in a few instances statutes passed for england or great britain before the union have not been extended to ireland, or statutes passed by the irish parliament before the union or by the british parliament since the union create offences not known to english law. in ireland the system of prosecution is nominally the same as in england, but in practice almost all prosecutions are instituted and conducted under the direction of the attorney-general for ireland, who is a member of the government of the day, and so responsible to parliament, as in the case of the lord advocate. in ireland, owing to the police being a centralized force, under the management of commissioners residing in dublin, any prosecution which in england might be conducted by the local police, would in ireland be conducted under the direction of the chief of the police in dublin, who is necessarily in close communication with and under the control of the attorney-general. scotland. in scotland hardly any crimes are constituted by statute law, the common law being to the effect that if a judge will direct any act to be a crime, and a jury will convict, that act is a crime. this great elasticity of the common law to include every sort of new crime which might arise was in times past very dangerous to political liberty, as it greatly enlarged the power of the crown to oppress political opponents, but in modern days it has its convenience in facilitating the punishment of persons committing crimes for the punishment of which in england a new act of parliament may be necessary. criminal procedure in scotland is regulated by an act of 1887 which greatly simplified indictments and proceedings. the prosecution of crime is in the hands of public officers, procurators fiscal, under the control of the lord advocate. private prosecutions are possible, but rare. except in the case of the law of treason, imported from england at the union, no grand jury is required, and the indictments are filed by the public officer. other british possessions. the criminal law of england forms the basis of the criminal law of all british possessions abroad, with a few exceptions, e.g. the channel islands (still subject to the custom of normandy) and the anomalous case of cyprus, where mahommedan law is to some extent in force. as to india, see infra. in many british colonies the criminal law has been codified or at the least consolidated. criminal codes have been passed in canada, new zealand (1893), queensland (1899) and w. australia (1901). many crown colonies have codes framed on the model prepared by the late sir r. s. wright for jamaica and revised in 1901, and in british guiana opportunity was taken (in 1893) to abolish the remnants of roman-dutch criminal law. the criminal law of south africa, which is based on the roman-dutch law, including the _constitutio criminalis carolina_ (1532), is not codified. in the transvaal and orange river colonies codes of criminal procedure are in force, drawn mainly from the common and statute law of the cape colony with the addition of provisions borrowed from english and colonial legislation. in mauritius the criminal law is comprised in a penal code of 1838 and a procedure code of 1853, which, with the incorporated amendments, are to be found in the _revised laws of mauritius_ (1903-1904), ii. 466 et seq. the penal code is based on the code napoleon. codification. \"criminal law has everywhere grown out of custom, and has in all civilized states been largely dealt with by direct legislation. in most civilized states (including japan) it has been codified by statute, to the general satisfaction of the people; and the conspicuous success of the indian penal code shows that english criminal law is susceptible of being so treated\" (bryce, _studies_, ii. 34). the expediency, if not the necessity, of codifying the criminal law of england has long been apparent. the writings of bentham drew attention to many of its substantial defects, and the efforts of romilly and mackintosh led to certain improvements embodied in what are known as peel's acts (1826 to 1832). in 1833, at the instance of lord chancellor brougham, a royal commission was appointed to deal with the criminal law. the nature of the instructions indicate the crudity of the ideas then ruling as to codification. the commissioners were directed to digest into one statute all enactments touching crimes and the punishment thereof, and into another statute the provisions of the common unwritten law touching the same. the commission was renewed in 1836 and 1837, and in 1843 a second commission was appointed. numerous and voluminous reports were published, including (1848) a bill for consolidating and amending the law as to crimes and punishments, and (1849) a like bill for criminal procedure, indicating that the commissioners had in the meantime learned the distinction between substantive and adjective law. lord brougham in 1848 unsuccessfully introduced the first bill, and in the end the only fruit of the reports has been certain amendments of procedure in 1851 and the passing of the seven criminal law consolidation acts of 1861, which deal with the statute law as to theft, forgery, malicious injuries to property, coinage offences and offences against the person. the reports, however, proved of value in the revision of macaulay's draft of the indian penal code, and led to the formation of the statute law committee, which has relieved the statute book of much dead matter. on his return from india, impressed by the success of the indian penal code, sir j. stephen made a strong effort to obtain codification. in 1878, at the instance of lord cairns, he prepared a draft code (based on his well-known _digest of the criminal law_), which was laid before parliament and then submitted to judicial criticism and revision. as a result of this revision a code bill was introduced in 1880; but a dissolution intervened and no serious effort was then made. the obstacle in the way is not lack of reports or digests on which to frame a code, but the incapacity of parliament to do the work itself, and its unwillingness to trust the work to other hands. india. the indian penal code and criminal procedure code, by their history, their form, and the extent and diversity of the races and peoples to which they apply, are perhaps the most important codes in the whole world. while the east india company was merely a trading company holding certain forts and trading ports in india and elsewhere, such criminal justice as was administered under its auspices was in the main based on the english criminal law, said to have been introduced to some extent by the company's charter of 1661, but reintroduced into the presidency laws by later charters of 1726, 1753 and 1774. (see _nuncomar and impey_, by sir j. stephen.) from 1771 until 1860 the criminal law administered was the mahommedan law. when in 1771 the east indian company determined to stand forth as diwan, warren hastings required the courts of the mofussil (provinces), as distinct from those of the presidency town of fort william, to be guided in the administration of criminal justice by mahommedan law, which under the moguls had been used in criminal cases to the exclusion of hindu law. difficulties arose in administration, from the definition of crime, the nature of punishments, and in matters of procedure, which were removed by regulations and by enactments on english lines, especially in bombay (1827); and great delays and considerable injustice were caused by the want of unity in judicial organization. between 1834 and 1837 macaulay with three other commissioners, macleod, anderson and millet, prepared a draft penal code for india, for which they drew not only upon english and indian laws and regulations but also upon livingstone's louisiana code and the code napoleon. little or nothing was taken from the mahommedan law. a revised draft of the penal code by sir b. peacock, sir j. w. colville and others was completed in 1856. in framing it the reports of the english criminal law commissioners (published after macaulay's draft code) were considered. the draft was presented to the legislative council in 1856, but owing to the mutiny and to objections from missionaries, &c., its passing was delayed till the 6th of october 1860. a draft scheme of criminal procedure was prepared in india in 1847-1848, which, after submission to a commission in england in 1853 (government of india act 1853), was moulded into a draft code which passed the india legislative council in 1861 (act no. xxv.) and came into force in 1862. it has been re-enacted with amendments in 1872 (act x.), 1882 (act x.) and 1898 (act v.). the result is that in india the criminal law is the law of the conqueror, though for many civil purposes the law of race, religion and caste governs. under the codes, one set of courts has been established throughout the country, composed of well-paid, well-educated judges, most of the higher judicial appointments being held by englishmen; all those who hold subordinate judicial posts at the same time are subjected to a combined system of appeal and revision. the arrangement of the indian penal code is natural as well as logical; its basis is the law of england stripped of technicality and local peculiarities, whilst certain modifications are introduced to meet the exigencies of a country such as british india. it opens with a chapter of general explanations, and interpretations of the terms used throughout the code. it then describes the various punishments to which offenders are liable; follows with a list of the exceptions regarding criminal responsibility under which a person who otherwise would be liable to punishment is exempted from the penal consequences of his act, such as offences committed by children, by accident or misfortune without any criminal intention, offences committed by lunatics, offences committed in the exercise of the right of private defence. it may be worth while to add, as an innovation on english law, that an act which results in harm so slight that no person of ordinary sense and temper would complain of such harm is not considered an offence under the code. then follows a chapter on abetment, in other words, the instigation of a person to do a wrongful act. the next chapters deal with offences against the public, including the state, the army and navy, public tranquillity, public servants, contempts of the lawful authority of public servants, perjury; offences relating to coin and government stamps, to weights and measures; offences affecting the public health, safety, convenience, decency and morals; offences relating to religion; and offences relating to the human body, from murder down to the infliction of any hurt. the code then passes on to offences against property; offences relating to forgery, including trade marks, criminal breach of contracts for service; offences relating to marriage, defamation, criminal intimidation, insult and annoyance. under this last head is included an attempt to cause a person to do anything which that person is not legally bound to do, by inducing him to believe that he would otherwise become subject to divine displeasure. the last chapter deals with attempts to commit offences punishable by the code with transportation or imprisonment, and the punishment is limited to one-half of the longest term provided for the offence had it been carried out. one peculiarity of the penal code which has proved eminently successful lies in the system of illustration of the offence declared in every section by a brief statement of some concrete case. for instance, as illustration of the offence of an attempt to commit an offence the following examples are given:-- i. \"a. makes an attempt to steal some jewels by breaking open a box, and finds on opening the box there is no jewel in it. he has done an act towards the commission of theft, and therefore is guilty under this section. ii. \"a. makes an attempt to pick the pocket of z. by thrusting his hand into z.'s pocket. a. fails in the attempt in consequence of z. having nothing in his pocket. a. is guilty under this section.\" indian code of criminal procedure. passing on to the system of criminal procedure which is set forth in detail in the code of criminal procedure as amended in 1898, it is no doubt modelled on the english system, but with considerable modifications. the principal steps are--(1) arrest by the police and inquiries by the police; (2) the issue of summons or warrant by the magistrate; (3) the mode of procedure before the magistrate, who may either try the accused himself or commit him to the sessions or the high court, according to the importance of the case; (4) procedure before the court of session; (5) appeals, reference and revision by the high court. elaborate provision is made for the prevention of offences, as regards security for keeping the peace and for good behaviour, the dispersion of unlawful assemblies, the suppression of nuisances, disputes as to immovable property, which in all oriental countries constitute one of the most frequent causes of a breach of the peace. ample provision is thus made for the prevention of offences, and the code next deals with the mode of prosecution of offences actually committed. as a general rule, every offence is inquired into and tried by the court within the local limits of whose jurisdiction it was committed. differing from the practice of continental countries, all offences, even attempts, may be prosecuted after any lapse of time. as in england, there is no statutory limitation to a criminal offence. a simple procedure is provided for what are called summons cases, as distinguished from warrant cases--the first being offences for which a police officer may arrest without warrant, the second being offences where he must have a warrant, or, in other words, minor offences and important offences. in summons cases no formal charge need be framed. the magistrate tells the accused the particulars of the offence charged; if he admits his guilt, he is convicted; if he does not, evidence is taken, and a finding is given in accordance with the facts as proved. when the complaint is frivolous or vexatious, the magistrate has the power to fine the complainant. the code gives power of criminal appeal which goes much further than the system in england. in cases tried by a jury, no appeal lies as to matters of fact, but it is allowed as to matters of law; in other cases, criminal appeal is admitted on matters of law and fact. in addition to the system of appeal, the superior courts are entrusted with a power of revision, which is maintained automatically by the periodical transmission to the high courts of calendars and statements of all cases tried by the inferior courts; and at the same time, whenever the high court thinks fit, it can call for the record of any trial and pass such orders as it deems right. all sentences of death must be confirmed by the high court. no appeal lies against an acquittal in any criminal case. this system of appeal, superintendence and revision would be totally inapplicable to england, but it has proved eminently successful as applied to the present social condition of the inhabitants of india. the appeals keep the judges up to their work, revision corrects all grave mistakes, superintendence is necessary as a kind of discipline over the conduct of judges, who are not subjected, as in england, to the criticism of enlightened public opinion. these indian codes form the basis of the penal, &c., codes in force in ceylon (superseding there the roman-dutch law), the straits settlements, the sudan and the east africa protectorates. foreign codes. it has already been stated that most european states have codified their criminal law. the earliest of continental codes is that of charles v., promulgated in 1532, and known as _constitutio criminalis carolina_. austria made further codes in 1768 (_constitutio criminalis theresiana_) and 1787 (emperor joseph's code). a new code was framed in 1803, and amended in 1852 by reference to the code napoleon; and in 1906 a completely new code existed in draft. the hungarian penal code dates from 1880. the bavarian code of 1768 of maximilian, revised in 1861, and the prussian code of 1780, have been superseded by the german penal code of 1872. the most important of the continental criminal codes are those of france, the _code penal_ (1810) and the _code d'instruction criminelle_ (1808)--the work of napoleon the great and his advisers, which professedly incorporate much of the roman law. the belgian codes (1867), and the dutch penal code (1880), closely follow the french model. in spain the penal code dates from 1870, the procedure code from 1886. the spanish american republics for the most part also have codes. portugal has a penal code (1852). in italy the procedure code and the penal code, perhaps the completest yet framed, are of 1890. the swedish code dates from 1864. the norwegian code was passed in may 1902, and came into force in 1905. japan has a code based on a study of european and american models; and switzerland is framing a federal criminal code. in the united states no federal criminal code is possible; but most states, following the lead of louisiana, have digested their criminal law and procedure more or less effectually into penal codes. (w. f. c.) footnotes: [1] \"it is founded,\" said sir j. fitzjames stephen, writing in 1863, \"on a set of loose definitions and descriptions of crimes, the most important of which are as old as bracton. upon this foundation there was built, principally in the course of the 18th century, an entire and irregular superstructure of acts of parliament, the enactments of which were for the most part intended to supply the deficiencies of the original system. these acts have been re-enacted twice over in the present generation--once between 1826 and 1832 and once in 1861; besides which they were all amended in 1837. finally, every part of the whole system has been made the subject of judicial comments and constructions occasioned by particular cases, the great mass of which have arisen within the last fifty years.\" (_view of the criminal law of england_, by j. fitzjames stephen.) [2] i.e. itinerant justices. from the latin _in itinere_, on a journey.",
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