Page:EB1911 - Volume 07.djvu/478

Rh The penal laws of modern states classify crimes somewhat differently, but in the main on the same general principles, dividing them into:—

1. Offences against the external and internal order and security of the state.

2. Offences against the administration of police and against public authority.

3. Acts injurious to the public in general.

4. Offences against the person (life, health, liberty and reputation), and conjugal and parental rights and duties.

5. Offences relating to property and contracts (including theft, fraud, forgery and malicious damage).

The terminology by which crimes are described by reference to their comparative gravity varies considerably. In many continental codes distinctions are drawn between crimes (Ger. Verbrechen; Norse vorbrydelser; Span. crimenes; Ital. reato), delicts (Ger. Vergehen; Ital. delitti; Span, delitos), and contraventions (Ital. contravenzioni; Span, faltas).

The classification adopted by English law is peculiar to itself, “treason,” “felony” and “misdemeanour,” with a tentative fourth class described as “summary offences.” The particular distinctions between these three classes are dealt with under the titles ; ;, &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 délit, and summary offence to contravention.

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 ). 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 (§ 121 A), and when it goes beyond agreement in the case of other offences it is merely a form of abetment or participation (§ 107).

The criminal law of England 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