Page:Encyclopædia Britannica, Ninth Edition, v. 6.djvu/622

Rh 588 CRIMINAL LAW that many offences which are crimes in the sense of being directly punishable, are, so far as the morality of the act i concerned, far removed from the class of crimes. To allow your chimney to go on fire is a crime in the sense that it is punishable by fine, but it is not a crime in the sense of the preceding article, or in the ordinary accepta tion of the term. The law of England on the subject of crimes is, like the rest of the law, composed of a large number of enactments, resting on a basis of common law. Its leading definitions and distinctions are derived from the common law, modified by judicial interpretation and by statute. A few of the general principles of the criminal law of England will be stated here ; for information as to the law relating to specific crimes reference should be made to the respective heads. The absence of systematic arrangement and of any precise definition of crimes is due to the historical character of the criminal law. &quot; It is founded,&quot; says a high authority, &quot;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 com ments and constructions occasioned by particular cases, the great mass of which have arisen within the last fifty years.&quot; ( View of the Criminal Law of England, by J. Fitzjames Stephen). A crime being defined as an action specifically forbidden under penalty of direct punishment, it may be stated, without entering into a minute analysis, that to render a person liable to punishment he must have a guilty inten tion, or, as it is called in English law, malice. This malice will be inferred from the fact tint the forbidden action has been done ; a man will be prasumed to have intended the natural consequences of his own acts. The inference, however, may be rebutted by evidence showing that the criminal intention required to constitute a crime was not as a matter of fact present. And there are certain conditions from which the law will infer the impossibility of any such intention. A child under seven is held to be incapable of committing a crime. If a married woman commits an alleged crime in presence of her husband, she will be held to have acted under his compulsion. The state of mind described as insanity, also excludes the possibility of criminal intention. Crimes are divided into treasons, felonies, and mis demeanours. The first class includes offences against the state, e.g., violence to the person of the king, or resistance to the authority of the sovereign power. The distinction between felonies and misdemeanours is not so easily drawn, and is founded if anything on the nature of the punishment and not of the crime in such case. In the definitions of crime in Bracton, misdemeanours appear as a less serious class of crimes, after the graver crimes of treason, crimen falsi, homicide, mayhem, arson, rape, and theft have been described. They are &quot; minor or lighter crimes, prosecuted civilly as inpersonal actions for injuries.&quot; They are regarded as of the nature of wrongs done to the sovereign power. In a trial for felony the jury are required to make true deliverance between the queen and the prisoner at the bar. In a trial for misdemeanour they are to try the issue joined between the queen and the defendant. The principal com mon law misdemeanours libel conspiracy, and nuisance have an obviously direct reference to the public peace, and may without much violence be regarded as grievances to the sovereign power itself. In Russell On Crimes, a mis demeanour is said to be the name generally applied to offences for which the law has not provided a particular name. But so many crimes have been created misdemean ours by statute which do not differ in character from felonies, that no distinction founded on the nature of the crime can be drawn between them. Nor can they be dis tinguished by the greater or less severity of the punishment, for some misdemeanours are punished more severely than felonies. Besides, however, the differences in the mode of trial noted above, felonies differed from misdemeanours inas much as they involved a forfeiture of property a distinc tion which no longer exists, since forfeiture for felony was abolished by 33 and 34 Viet. c. 23. And in general there are greater facilities for arresting the criminal in case of felony than in misdemeanours. 1 It is unfortunate that a distinction so fundamental should be so utterly vague. All the crimes known to the law may be divided into felonies and misdemeanours, for treason is after all a case of felony , but it is impossible to say what felony is or what a misde meanour is without an enumeration of the specific crimes which are ranked under each head. The Consolidation Acts form a classification of crimes which is more easily understood, although it does not cover the whole of the criminal law. Thus the Acts of 1861 (24 and 25 Yict. cc. 96, 97, 98, 99, and 100) relate respectively to larceny, malicious injuries to real property, forgery, coinage, and offences against the person. The definitions of particular crimes are still to be sought in the common law and the decisions of the judges. The Consolidation Acts for the most part leave them as they stood, e.g., the Larceny Act 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 some times 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 set aside by the judges as not being within their definition of the particular crimes alleged, and the legislature has constantly had to interfere. In this way the penalties of larceny were gradually extended to embezzle ment, frauds by trustees, &amp;lt;fec. Attempts to commit crimes are themselves crimes. It is laid down in Russell On Crimes (vol. i. p. 189) that &quot; an attempt to commit a felony is a misdemeanour, and an attempt to commit a misdemeanour is a misdemeanour, whether the offence be so by comir.on law or by statute.&quot; An attempt to murder was at common law no more than a misdemeanour punishable by two years imprisonment. This was the case until 1861 ; but now by the 24 and 25 Viet. c. 100 (Offences against the Person Act), any person attempting by the means specified therein, or by any other means, to commit murder, is guilty of felony and punish able by penal servitude for life or for any term not less than three years, &c., or to be imprisoned for not less than two years with or without hard labour or solitary confinement. Persons accused of a crime may be either principals or accessories, and these are further distinguished into princi pals of the first and second degree, and accessories before 1 Any one who has obtained a drove of oxen or a fiock of sheep by false pretences may go quietly on his way and no one, not even a peace officer, can apprehend him without a warrant, but if a man offers to sell another a bit of dead fence supposed to have been stolen, he ret only may but is required to be apprehended by that person (Greaves, Criminal Law Consolidation Act$).