February 3, 1900.]
action for damages to the person injured. In the one case the injury to the community is considered and punished, in the other merely the injury to the individual is regarded. Now
there are
TWO GREAT SYSTEMS CF CRIMINAL LAW.
One, the Continental system. The other, the English system.
By the Continental system, I mean the sys. tem based upon Roman Law; the system in force in France, Spain, Italy, and Holland, for example. In these, countries, as formerly in Scotland, the Roman Law profoundly influenced the local legal system, including the criminal procedure in force from time to time.
By the English system, I mean the system in force in England, which represents the present-day views of the Anglo-Saxon race on the subject of crime and the methods of dealing with alleged criminals. That this English system comes of a vigorous stock and has a vitality of its own which seems to suit the genius of our race, is evident from its prevalence in so large a proportion of the civilized world. With trifling modifications to suit local require ments, it is in force in nearly every British Colony. In various shapes it obtains in almost the whole of those vast areas which go to make up the United States of America. You will find it in Canada and in Australia, and it forms the basis of that Indian Penal Code which has been described by an eminent modern writer as "the Criminal Law of England freed from all technicalities and superfluities, systematically arranged and modified in some very few par. ticulars to suit the circumstances of British India." The English system appears, therefore, capable of adaptation to varied races of men, living in different countries and in tropical as well as in temperate climates.
DISTINCTION BETWEEN THE TWO SYSTEMS.
The experience of centuries has of course, caused improvements and modifications in both these two great systems. While, however, the essential features of the English system are now Trial by Jury and viva voce evidence given in open Court by witnesses in the pre. sence of the accused who may oross-examine them, the Continental system admits of written evidence not necessarily seen by the accused and elaborate official interrogation of the pri-
soner conducted often in secret and rather on the assumption that he is guilty than that he may be innocent. Such interrogation is aimed at procuring confession of his guilt or damag ing admissions to be used eventually against him. To take, for instance, the French case of the Monk Léotade accused of mar der and other crimes. He was arrested in April. Sir James F. Stephen points out, and not tried till the following February. Now, during those ten months, he spent most of the time in solitary confinement, being, however, constantly examined, cross-examined, re-examin. ed, and confronted with various witnessess al ways in secret. "At the trial it seems that, after the acte d'accusation had been read, he was again cross-examined at great length, and the agument for the prosecution was that he must be guilty because his answers on differ ent occasions were, in some degree, inconsist. ent, and because on one or two points he was contradicted by other witnessas. I am not discussing which is the most effective system in preventing the escape of a guilty person from punishment allotted to his crime, but there can be no doubt that the English system is more in accordance with our notions of justice and fair play. According to the English system, Leo- tade could not have been interrogated at all, and before he made any statement before the Magistrate on the preliminary enquiry he would have been cautioned that anything he said might be given in evidence against him. I am aware that juries are not unknown in some Continental States, and that trifling offences can be dealt with summarily by a Magistrate without a jury under the English system; but I am speaking generally of the difference between the two systems.
THE ENGLISH SYSTEM SHOULD BE STUDIED
HISTORICALLY.
It is impossible to thoroughly understand the present English system of criminal law without some knowledge of its past history. You may find out what the law on some particular point
CHINA OVERLAND TRADE REPORT.
79
is by reference to elaborate works of text | Treason, Homicide and Accomplions in capital writers on the subject. The man of intelligence cases. Tho excellent work appeared in 1762. will, however, want to know why the law is such! How came that to be the law? Is it delivering lectures on law at Oxford, and among It was about this time that Blackstone was quite satisfactory to the logical mind of the those who attended his lectures was Jeremy philosopher that the law should be so? Why Bentham who was afterwards to become one of is it a felony if I steal your purse with a shill- the ablest and most fearless critics of the Brit- ing in it, and only a misdemeanour if by some ish Constitution and Laws. false pretence I swindle you out of ten thousand pounds? The answer to such questions is that one must study Criminal Law historically. That history is interwoven with the history of Eng. land itself. The various races that have settled in England have left their impress on her laws both civil and criminal. The mark of some has been more abiding than that of others. But it is a fact that English Criminal Law would not have been exactly what it is to-day hnd not Saxons, and Roman ecclesiastics, and Danes and Normans settled in England and brought with them their respective customary laws and their habits of thought and modes of regarding crime and dealing with criminals.
Just as the intermingling of various races evolved. on English soil, the modern English- man, so the present English Criminal Law has been evolved from the succession of the varied laws and customs of those races, tested and tried by the exper.ence of many centuries and modi fed by Acts of Parliament. The result is, doubtless, a somewhat complex and nnsystema ic body of law, but the principles which per meate it are admirable.
WRITERS WHOSE WOKKS SERVE AS LANDMARKS IN THE HISTORY OF CRIMINAL
LAW.
Among the authorities who may be consulted by oue desirous of ascertaining what the Crimi- nal Law was in former days in England, may be mentioned the following:-The collection of Ancient Laws and Institutes of England, publi- shed by Mr. Thorpe under the direction of the Record Commissioners. This contains some forty-seven sets of laws or partly ecclesiastical. partly secular statutes, bearing the names of fourteen rulers, twelve of them before the Con. quest, viz. from Ethelbert to Edward the Con- fessor inclusive, while the remaining two are Norman Kings-William the Conqueror and Heary I.
the reign of Henry II. and
Glanville is next worth notice. He wrote in was in 1189 the then equivalent of the Chief Justice.
The Mirror of Justice seems to have been written about the time of Edward I. Sir
JAMES F. STEPHEN, however, does not seem to regard its authority as very trustworthy in some
matters.
Bracton
The earliest writer, on Criminal Law, who gives anything like a general view of the subject in his day, is
He was one of the Justices Itinerant of Henry III. and collected the laws and customs pre- vailing in England in the earl'er half of the thirteenth century, Things were then in s transition stage and while the old English law regulated procedure, the deficiency in definitions and principles was supplied by Bracton chiefly from the Roman Law. It must not be supposed that Roman Criminal Law ever took deep root generally in England. The English were always suspicious of it, possibly on account of the ar- bitrary powers conferred by it on the Sovereign. The Digest lays down that "what pleases the Prince has the force of law, as by the Royal Law (Lex Regia) which was passed concerning his authority, the people conferred upon him all their power and authority." Principles of Roman Law such as these would have des- troyed that feudal liberty which the nobles cherished. Such doctrines would have been, fatal, bad they been incorporated in our the Lex Regia kind which cost the Stuarts the laws. It was the attempt to put in practice of throne of England.
which have had a greater influence on the laws The next great work was Goky's Institutes, of our country than any work written between the days of Bracton and those of Blackstone.
Coke flourished in the time of James I.
|
|
celebrated Commentaries between 1765 and 1769. Blackstone published the first edition of his He gives us a complete view of the whole sys- tem of English Law as it existed in the latter part of the 18th century. An eminent authority has said :- "Blackston did, and did exceedingly well, for the end of the 18th century, what Coke tried to do and did exceedingly ill about one hundred and fifty years before, that is to say, he gave an account of the law as a whole, capable of being studied not only without dis- gust but with interest and profit."
Hale with common law principles and de- He dealt more completely than Coke and finitions, and treated fully of the great ad. ditions which had been made in the course of the 18th century in the substantive Cri- minal Law by statutary enactment. Black- stone's Commentaries have passed through many editions, and even at the present day the four volumes of Mr. Sergeant Stephen's Commentaries, which may be described as Blackstone brought up to date, are set as the subject of the Intermediate Examination of articled clerks aspiring to become solicitors. Of course, the modern writers have had to take nto account the vast number of Acts of Parlia ment which have dealt, in an unsystematic way, with various offences which the circum- stances of the day bare, from time to time, forced on the special attention of the Legisla ture. Blackstone's courtly language and some.. what exaggerated feeling of admiration for the aw as existing when he wrote, brought him under the literary lash of Bentham, that robust hater of technicalities and red tape, that exval- leat specimen of a healthy mind in a healthy body.
Jeremy Bentham exposed, by his bold and dashing oriticism, many of these defects and blemishes of our legal system whose antiquity had caused them t› be generally regarded with to- laration and even respect,
It is difficult for us to realize that when Blackstone wrote, th re were no less than one hundred and sixty offences declared by Act of Parliament to be punishable by death.
Bentham boldly points out the atrocious cruel: It is true that Blackstone laments this, but
ty of such a state of things. Death was the punishment for stealing a sheep just as it was for murdering a man.
Henry Brougham, afterwards Lord Chan. cellor, was a devout Benthamite, and the brilliant speech he delivered in the House of Commons when Bentham was between seventy and eighty years old led to the appointment of two Commissions. one to consider the Criminal Law, and the other the methods of the Courts at Westminster and the Common Law. The Report of a Commission on Crimi nal Law led to the appointment of a further Commission, which resulted in the passing of the Criminal Law Consolidation Acts of 1861. But the more immediate and very satisfactory result of Bentham's and Brougham's efforts, was the confining of capital punishment to murder, high treason, and piracy.
The ablest modern writer upon Criminal Law was, in my opinion, the late Sir James Fits- James Stephen, whose Digests of Criminal Law and of Procedure contain the result of the labours of half a life-time, and show how feasible it would be to produce a complete code, given the necessary power and authority to the right availed myself of his admirable History of the persons. In writing this Paper, I have largely
Criminal Law of England, a work showing immense research.
His EXCELLENct the GovezNOR-I think
there will be no dificulty in your acceding to my proposition that we shall pass a vote of cordial thanks to the lecturer for the very in- teresting lecture he has just delivered on English criminal law. (Hear hear.) We have all listened with very great interest to his rapid review of English criminal law from the A century later appeared Sir Michael Foster's | earliest times, and there is one thing which Report of Criminal Cases, decided mostly in the Í struck me with reference to the past and the reign of George 11. followed by discourses on present, and that is the fact that at the present
In the middle of the 17th century Sir Mat- thew Hale's Pleas of the Crown was published. It was a work of great ability and is even now deemed an authority of a high order.
No comments yet.
Private notes are available after approval.