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February 10, 1900.]
heir. It is evident-public feeling has much changed since those days.
When the jury has been sworn, proclamation is made calling on the prosecutor and witnesses to prosecute and give their evidence.
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CHINA OVERLAND TRADE REPORT.
oution. In Hongkong, however, the Attorney: General acts as Public Prosecutor and private prosecutions, the Indictment has to be signed by the Attorney General. NECESSITY FOR A CODE OF CRIMINAL LAW. It seems very strange, and it indicates the necessity for oiling the wheels of the Legis. lative Machinery in England, that we have no complete Code of English Criminal Law. If Parliament has had the inclination, it has not found time to pass such a measure.
We will assume the accused to have pleaded “not guilty.” The next step is that of em- panneling the jury by whom he is to be tried. In England the jury consists of twelve men and the verdict must be unanimous. In Hong- kong the jury consists of seven men and (except in cases, such as murder visited by the law with capital punishment) a majority consisting of not less than five jurors can give a valid verdict.
In England the accused may challenge për. It is to be lamented that King James did not emptorily, that is, may, without giving any accept Lord Bacon's offer to digest the laws of reason, object to thirty-five jurymen in cases England as they existed at the beginning of the of treason, and twenty in cases of felony, but seventeenth century. Sir Robert Peel, speaking in cases of misdemeanour he has no right of in the House of Commons in 1926, said that the peremptory challenge and must show good lapse of more than two hundred years had cause for any challenge he makes. Any chal- incressed the necessity of the measure which lenge must be made as the juryman is about to be Lord Basin then proposed. It is estimated by sworn and before he is sworn. In Hongkong, competent authority that in the middle of causeless challenges are not allowed. It.is pro- the thirteenth century, some twenty sec. vided by the Jury Consolidation Ordinance.tions would have sufficed for a criminal code, No. 18 of 1878, that no person who shall be put while in Lord Coke's day, possibly eighty sec. upon his trial either for treason, felony or mis- tions, carefully drawn, would have been suffi. demeanour shall be allowed to challenge any of cient. It is true that some portious, perhaps the jurors except for caure.
nearly half of the Criminal Law, was consoli. dated nearly forty years ago. The Consolida tion Aots of 1861 dealing with accessories, with offences against the person, with larceny, with In cases of tregion and felony, the officer of malicious injury to property, with forgery, and the Court then gives the prisoner in charge to with coinage offences, although somewhat com. the jury, stating the effect of the indictment brous in their structure and very deficient in and the prisoner's plea of not guilty and charg-definitions, are very useful Acts. But a Code ing them to enquire whether he is guilty or of substantive Criminal Law and also a Code not. The Counsel for the prosecution then of l'rocedure are sadly needed, and in the ab- opens the case to the jury and calls and ex- sence of such codes one can but admit the amives his witnesses who are respectively cross-justice of the description of our law as examined and re-examined according to the curious combination f Common Law and frag rales of evidence. It used to be a cardinal rulements of innumerable statutes, welded, so far as that the prisoner could not be called as a witness to give evidence on oath, but by recent Act of Parliament 61 and 62, Victoria, chap. 36, it is enacted that in England "Every person charged with ад offence and the wife or husband, as the case may be, of the person so charged, shall be a competent witness for the defence at very stage of the proceedings whether the person charged 8. lely or jointly with any other person. As a general rule, however, the accused can- not even now he called as a witness except upon his own application, and certain limits are im- posed on his cross-examination. At the closa of the prosecution, the case for the defence is opened by the prisoner's Counsel (if he has any) and the witnesses for the defence are called and cross-examined and re-examined and then the prisoner's Counsel sums up his evidence.
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it is velded into a whole, only by the industry of text writers who have assimilated and col- lected the immense materials afforded by ancient treatises, case law, and the status law."
The result is that the practising lawyer has constantly to consult huge treatises such as Russell on Crimes,
IGNORANTIA LEGIS NEMINEM EXCUSAT.
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not commit high treason or other politioal of fences. · Those who honour and obey, in their due order and degree, those who are put in suthority under the Queen, will not attempt to pervert the course of justion nor will they dis- obey lawful commands or violate the provisions of Acts of Par.isment or be guilty of corrupt practices with regard to public officers, or in the discharge of powers confided to them by law. Those who hurt nobody by word will not com- mit libel, or threaten injury to person, property or reputation, nor will they lie in Courts of Justice or elsewhere but will keep their tongues from evil speaking, lying and slandering. Those who hurt nobody by deed will not commit murder, administer poison. or wound assault others. or burn their houses or maliciously injure their property. Those who keep their hands from picking and stealing will commit neither thefis, nor frandulent breaches of trust, nor forgery, nor will they pass bad money.' I need not proceed any further with this illustration, but there is much truth in that learned. writer's statement that
**** The criminal law may be regarded as a detailed ex- position of the different ways in which men may so violate their duty to their neighbours as to incur the indignation of society, to an extent measured not inaccurately by the various punishments awarded to their misdeeds."
ORIMINAL LAW IN THE OLDEN DAY8.
or
Greene tells us in his History of the English People, that the ten commandments aud a portion of the law of Moses were prefixed to the code of King Alfred, and thus be- came part of the law of the land in Saxon times. Now King Alfred died A.D. 901, so bis laws were in force a thousand years ago; and while the Church Ecclesiastics gradu. ally assumed jurisdiction in matters calling for spiritual censure, the Civil Courts came to deat in time almost exclusively with offenders against the second half of the commandments. One might say, in popular languages, the clergy en- forced many of the duties to God while the Civil Courts dealt with wrongful acts to a man's neighbours or fellow-men. This may be accounted for, even in those wild days, by the An eminent writer influence of the Church. has pointed out that "the clergy were never more powerful in any time or country than The answer will be "everyone is presumed to they were in England before the Norman know the law," an assumption perhaps more re. Conquest Civil and Ecclesiastical legislature markable for boldness than for accuracy. At
went band in hand, nearly every set of secular the same time, it is difficult to see how justice laws enacted by any of the early Kings were could be administered on any other assumption coupled with an ecclesiastical onde or contained though, most certainly, the majority of people ecclesiastical provisions." In those days the Thon follows the reply of the Counsel for
know remarkably little about the Criminal Law.highest as well as the lowest in the land regard the prosecution and the summing up of the
Yet comparatively few seem to suffer much in- whole matter by the Judge who directs the
convenience from that want ef knowledge. It jury as to the law of the case and calls their
is quite possible for any ordinary, honest, well attention to the evidence adduced. The jury conducted man to go through life without tron- then give their verdict and prisoner is discharg-bling himself in the least, about the diffi- ed if the verdict is "not guilty" and sentenced if he is found guilty.
REMARKS ON THE PRESENT PROCEDURE.
All this seems very natural to us now, because we are accustomed to it, but the prisoner wAS not always treated with the consideration he meets with now. I am far from saying that the present system might not be improved, and that many useless technicalities might not be abolished with advantage to the community; but there can be little doubt that, given a care. ful judge and fair-minded jury, very few inno- cent people can be convicted, though, possibly, a fair percentage of guilty men are acquitted through technicalities. It must be remembered that although the jury may think the probability is that the accused is guilty, nevertheless if they entertain any reasonable doubt they must find a verdict of not guilty. We have no special verdict of "not proven in English Criminal Law.
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Now although modern Criminal Law is a complicated and difficult subject, it is no good breaking the law. for an offender to say he did not know he was
is true that, as
ed ecclesiastical censure and discipline with awe. Moreover, the Bishop and the Earl sat sido by side in the Court of each County, till William the Conqueror relegated the Bishops to their special province of dealing with things ecclesias- tical and the discipline of souls. Thus originat- the Bishops' Courts which still exist und which many years ago played an important part in history.
The Clergy encouraged the system of Com- purgation and of Ordeuls, which were the modes of deciding contested cases where an of- fender was charged with crime in Saxon times,
culties and complexities of Criminal Law. It
civilization increase and¦ed men congregate in large towns, many regulations, fiscal or municipal, have to be enacted, and as contraventions of these are enforced by the Magistrate in the interests of the community, an act not, in itself, morally wrong may be made punishable, But, in the main, the Criminal Law is an elaborate devel- opment of the second half of those ten com- mandments, which we are told were divinely given more than three thousand years ago, amidst thunderings and lightnings, at Mount Sinai. Therefore a man who obeys those com. mandments will not be likely to fall foul of the Criminal Law of England.
CRIMINAL LAW AND THE COMMANDMENTS. Human nature now is singularly likely bu- man nature then. The commandments Thou shalt not kill, Thou shalt not steal, Thou shalt not bear false witness against thy neighbour, Thou shalt not covet, &c. &o, aye and other One defect in the criminal procedure in Eng. commandments too, ara just as essential to the land is the want of a sufficient staff of public welfare of the individual and of the State now prosecutors. It is true that, in 1884, the Soli- at the end of the 19th century in England and citor of Her Majesty's Treasury was consti- in Hongkong and elsewhere, as in the days of tuted Director of Criminal Prosecutions. But Moses and in the wilderness around the holy he intervenes only occasionally, to prevent a
mountain. Indeed, Sir James F. Stepheù miscarriage of justice; and in nearly every case points out that the statement of the positive the private individual who is injured is left to duties of man to man to be found in the prosecute at his own expense, subject to the Church Catechism which merely develops those Court allowing his reimbursement to a certain commandments, corresponds step by step with oxtent. Such prosecution, though in the name | the prohibitions of a Criminal Code. Those," of the Sovereign, is in reality a private prose- says he, "wno honour and obey the Queen will
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CRIMINAL LAW IN SAXON TIMES.—INFANG- THIET, COMPURGATION, AND ORDEALS. In Saxon times the thief or murderer, if of bad character, got little mercy. Franchises of Infangthief were usually conceded to the lords of townships, which conferred the right sum- marily excuting thieves found on their lands. Strangers were regarded with suspicion, for Ina's laws provide that 'if a far coming man or a stranger journey through a wood out of the highway, and neither shout nor blow his horn, he is to be held for a thief either to be slain or redeemed."
Assuming, bowever, that the accused escaped summary hanging, the process of investigation into a charge of theft seems, to have been some- what as follows:-First, in order to see that the charge was made bond fide, the accuser had to swear he accused not for hatred, suvy, or unlawful lust of gain.”
The accused mau, if he denied the charge, Then then had to swear to his innocence.
The arose the question of personal character. system of sureties and Frankpledge simplified this. Ethelstone's law, for instance, enacted that the lord or his steward should answer for