Page:Encyclopædia Britannica, Ninth Edition, v. 6.djvu/623

Rh CRIMINAL LAW 589 and after the fact. Principals in the first degree are those who have actually and ivith their own hands committed the &amp;lt;fad. Principals in the second degree are those who were present aiding and abetting at the commission. An acces sory before the fact is one who, being absent at the time of the offence committed, doth yet procure, counsel, com mand, or abet another to commit a .felony. And an acces sory after the fact is one who, knowing a felony to have beau committed by another, receives, relieves, comforts, or assists the felon. Participation in the commission of a felonious act in any of these ways is a felony (Russell On Crimes, vol i. p. 156). By the Accessories and Abettors Act (24 and 25 Viet. c. 94) accessories before the fact may bs tried and punished as principals, and accessories after the fact may be indicted as such or as substantive felons. Criminal procedure in England is distinguished by several special features, the most remarkable of which is its close similarity to procedure in ordinary civil cases. Crimes are left, like civil injuries or breaches of contract, to be prosecuted by the persons injured, and the nature of th&quot;e trial, tho character of the tribunal, and the rules of evidence are the sama as in an ordinary litigation at common law. Mr J. F. Stephen, in the excellent treatise already quoted, aptly distinguishes the English system as &quot; litigious &quot; from the &quot; inquisitorial &quot; system prevailing in France and other countries. Preliminary jurisdiction in criminal cases is possessed by the justices of the peace, who may also under special Acts convict in a summary manner for offences of minor importance. When the justices are satisfied that fiere is a prima facie case they commit tho prisoner for trial either at the quarter sessions or at the assizes. (See COURTS.) The following cases are not liable at quarter sessions : Nisprision of treason; offences against the queen s person, prerogative, &c., or against Parliament; offences subject to the penalties of prgemunire ; blasphemy ;. unlawful oaths (administering or taking) ; perjury and false affirmation; setting fire to crops of grain, wood, heath, &c. ; bigamy ; abduction ; concealment of birth ; bankruptcy offences ; blasphemous libels ; bribery ; conspiracies for offences not triable at sessions ; stealing records or documents, &c. A trial at quarter sessions or assizes begins by the presenta tion of an indictmant to the grand jury, who are selected for the occasion, to the number of from twelve to twenty- three, from the gentlemen of standing within the district for which the court is sitting. The judge delivers a charge to the grand jury, shortly pointing out the nature of their duties, and directing their attention to any peculiarities in the cases that are to come before them. The grand jury discuss each case seriatim, and hear witnesses in private (in general only those for the prosecution), and if they are satisfied that there is a prima facie case against the prisoner they return a true bill, and the case goes to trial before the judge and a common jury. If the grand jury do not return a true bill, the case is at an end, unless there has been a verdict on a coroner s inquisition, or unless it is a case which may be proceeded on by way of information. A criminal trial in open court now differs in very few points from any ordinary civil cause. For a long time prisoners were not allowed to have the benefit of professional advocacy except in cases of high treason, and the privilege was not conceded until the Prisoners Counsel Act of 1836. Sir J. Stephen fixes at the same date the entire exemption of prisoners from interrogation, a practice which would appear to be connected, in legal reason, with the rule which made a party to a cause an incompetent witness. In this respect the contrast between a criminal trial in England and a criminal trial in France is very striking. The constant interrogation and browbeating of the prisoner by the judge, consistent as it may be with the inquisitorial theory of their procedure, is always revolting to English men, accustomed to see in every criminal trial a fair fight between the prisoner and the prosecution. Confessions, which are the object of many proceedings in a French inquisition, are regarded with suspicion by the English law. During the spring assizes of 1877 a prisoner was charged with having committed a murder twenty years ago, 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. 1 Although a prisoner may have counsel to defend him if he can afford to pay the customary fee, no provision is made by law for his being BO represented. But the custom of the courts has imposed upon judges excep tional care for the prisoner s interests, and on the prosecut ing counsel exceptional forbearance when tho prisoner is undefended. It was often said before the Prisoners Counsel Act (and it is still true) that the judge is the prisoner s counsel. In exceptional circumstances the judge will call on some member of the bar to undertake tho prisoner s defence. As there is no provision made by law for the prisoner s defence, so there is no public prosecutor. The absence of such an officer has long been an admitted defect in the English system, but no successful attempt has yet been made to deal with it. It is generally agreed that an official staff of prosecuting counsel would not be desirable. But there certainly ought to be some public officer charged with the preparation, if not of all criminal cases, at least of those which the injured person dots not wish to conduct himself. At present a private person is bound over by tho magistrates to prosecute at his own expense, and the con sequence often is that many persons will forego an injury rather than submit to the trouble and risk of a prosecution. The prosecutor can recover his costs from the county, unless they are disallowed by the judge. The county again is entitled to be recouped by the Treasury, and between these two bodies there has been a standing feud on the subject of criminal costs for some years. Properly speaking there is no appeal in criminal trials. The verdict of the jury is final. Any substantial defect or informality in the procedure may be taken before the Queen s Bench by writ of error, but such cases are not now of frequent occurrence. And if any question of law arises at the trial, the judge may reserve it for the opinion of the court for the consideration of crown cases reserved, by whom the conviction may be either quashed or con firmed. Punishments under the common law were excessively severe, but their operation was mitigated by the singular privilege of BENEFIT OF CLERGY (q.v.}. Blackstone laments that &quot; among the variety of actions which men are daily liable to commit, no less than 160 have been declared by Act of Parliament to be felonies without benefit of clergy, or, in other words, to be worthy of instant death.&quot; Tho more atrocious punishments have disappeared from the law, and the penalty of death is now practically restricted to murder. Fine, imprisonment with or without hard labour and with or without solitary confinement, and penal servi tude, 2 are the most usual punishments, and a wide discretion is left to the judges. 1 &quot; No confession made by the prisoner is admissible which is made in consequence of any inducement of a temporal nature, having refer ence to the charge against the prisoner, held out by a person in author- ity&quot; (Eoscoe s Digest of Criminal Evidence). Notwithstanding the general bearing of the law against confessions, it is held that a con fession obtained by artifice or by spiritual solicitation may be used in evidence. 2 By 16 and 17 Viet. c. 99, all sentences of transportation were coa- verted into penal servitude.