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CRIMINAL See also:LAW . By criminal, or penal, See also:law is now understood the law as to the See also:definition, trial and See also:punishment of crimes, i.e. of acts or omissions forbidden by law which affect injuriously public rights, or constitute a See also:breach of duties due to the whole community . The See also:sovereign is taken to be the See also:person injured by the See also:crime, as he represents the whole community, and prosecutions are in his name . Criminal law includes the rules as to the prevention, the investigation, See also:prosecution and punishment of crime (q.v.) . It See also:lays down what constitutes a criminal offence, what See also:proof is necessary to establish the fact of a criminal offence and the culpability of the offender, what excuse or See also:justification for the See also:act or omission can be legally admitted, what See also:procedure should be followed in a criminal See also:court, what degrees and kinds of punishment should be imposed for the various offences which come up for trial . Finally, it regulates the constitution of the tribunals established for the trial of offences according to the gravity of the infraction of law, and deals with the organization of the See also:police and the proper management of prisons, and the See also:maintenance of See also:prison discipline . (See See also:EVIDENCE; PRISON; POLICE.) Many acts or omissions, which are technically criminal and classified as offences and punished by See also:fine or imprisonment, cannot be said to have a strictly criminal See also:character, since they do not fall within the popular conception of crime . To this class belong such matters as stopping up a See also:highway under claim of right, or failing to repair it, or allowing a See also:chimney to emit See also:black See also:smoke in excessive quantities, or to catch See also:fire from being unswept, or breach of See also:building by-See also:laws, or See also:driving a motor See also:car on a highway at a See also:speed in excess of the legal limit . Such breaches of law are under the See also:French law described as contraventions . In See also:England most of them are described as See also:petty misdemeanours or offences punishable on See also:summary conviction, or less happily as " summary offences," and some writers speak of them as See also:mala prohibita as distinguished from mala in se, i.e. as not involving any breach of See also:ordinary morality other than a breach of See also:positive regulations . See also:Continental jurists at times speak of crimes de See also:droit commun (i.e. offences See also:common to all systems of law as distinguished from offences which are crimes only by a particular municipal law) . To this class of crimes de droit commun belong most of the offences included in See also:extradition See also:treaties .
Criminal and See also:civil law overlap, and many acts or omissions are not only " wrongs " for which the person injured is entitled to recover See also:compensation for his own See also:personal injury or damage, but also " offences " for which the offender may be prosecuted and punished in the See also:interest of the See also:state
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In non-See also:English See also:European systems care is taken to prevent civil remedies from being extinguished by punishment: it is quite usual for the civil and criminal remedies to be pursued concurrently, theindividual appearing as partie civile and receiving an See also:award of compensation by the See also:judgment which determines the punishment to be inflicted for the offence against the state
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Under English law it is now exceptional to allow civil and criminal remedies to be pursued concurrently or in the same proceeding, or to award compensation to the injured party in criminal proceedings, and he is usually See also:left to seek his remedy by See also:action
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Among the exceptions are the restitution of stolen goods on conviction of the thief if the prosecution has been at the instance or with the aid of the owner of the goods (See also:Larceny Act 1861, § Too), and the award of compensation to persons who have suffered injury to See also:property by See also:felony (See also:Forfeiture Act 1870)
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As See also:Sir See also: Of the early criminal laws of See also:Greece only fragments survive, e.g. those of See also:Solon and See also:Draco . In See also:Athens in early times crime was dealt with in the See also:Areopagus from the point of view vrewe. of See also:religion and by the archons from the point of view of compensation: and it was only when the state interests were directly affected that proceedings by way of eicayyeXia or See also:impeachment were taken . In classical times crimes See also:fell to be tried by panels of jurors or See also:judges See also:drawn from the See also:assembly and described as &Kaaripla . The earliest materials for ascertaining the criminal law of See also:Rome are to be found in the Twelve Tables, Table VIII . The criminal law of imperial Rome is collected in books 47 Rome. and 48 of the See also:Digest . The See also:classification of crimes therein is capricious and anomalous . " In the early See also:Roman law the See also:idea of legislative See also:power was so fully grasped and that of judicial power so little understood that the criminal See also:jurisdiction arose in the See also:form of a legislative enactment applicable to particular cases." Crimes were classified according to the mode of prosecution into: r . Publica judicia, dealing with crimes specifically forbidden by definite laws, which took the See also:place of the See also:standing commissions (quaestiones perpetuae) of the See also:time of the See also:republic . In the earlier stages of Roman law the state only interfered to punish offences which gravely affected it, and did so by privilegia, which correspond to impeachment or See also:Bill of Pains and Penalties . Development of modern criminal law . 2 . Extraordinaria crimina, crimes for which no See also:special procedure or punishment was provided: the punishment being, within limits, left to the discretion of the See also:judge and the prosecution to the injured party . 3 . Privata delicta, offences for which a special form of action was open to the injured party, e.g. actio furti . The multiplicity of tribunals under the republic was replaced under the See also:empire by a See also:complete organization of the judiciary throughout the districts (dioceses) under the supervision of the See also:emperor in his privy See also:council (see Maine, Ancient Law, ed . 1906, p . 393) . Public prosecution under the empire began by See also:arrest of the accused, who was taken before an eirenarclza, who examined him (by See also:torture in the See also:case of a slave or See also:parricide) and sent him on for trial before the praeses of the See also:diocese (8zoi,Cl70'es) . Private prosecution followed, a procedure closely resembling that of civil actions, beginning with citatio (See also:summons), followed by libellus or See also:accusation, and See also:appointment of a See also:day for See also:hearing . The right of either party to See also:call witnesses was very imperfectly established . The early laws of the See also:Celtic races are preserved as to See also:Wales in the laws of Hywel Dda, and as to See also:Ireland in the See also:Book of Aicill and other Brehon law tracts, which are See also:pro- Celtic law . fessional collections of precedents and formulae made by the hereditary law See also:caste (Brehons), whose business it was " to pass See also:sentence from precedents and commentaries." (See BREHON LAWS.) The development of Celtic law was arrested by the Saxon and Anglo-See also:Norman See also:conquest: but the materials preserved indicate an origin common with that of Germanic law . The special characteristics of Irish criminal law, if it can be so called, were: 1 . The law was customary and theoretically unchangeable, and no legislative or judicial authority existed to alter or enforce it .
2
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All crimes were treated as wrongs, for which compensation was made by See also:assessment of See also:damages by a consensual tribunal whose power to make awards depended on submission of the parties and the ultimate See also:sanction of public See also:opinion or See also:custom
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A customary See also:tariff for compensation existed for all offences from wilful See also:murder downwards
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No crime was unamendable
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The Irish law recognized a See also:body See also:price or compensation (S. bot) and an See also:honour price or See also:eric (S. wer), for which the family or tribe of the offender was collectively liable; but there is no clearly ascertained See also:equivalent to the Saxon wife, or fine to the See also:chief
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The laws of the Germanic tribes, so far as preserved in the Germania of See also:Tacitus, and in the compilations of customs known as the Salic and Ripuarian laws, the Leges Barbarorum, law. the Dooms of .IEthelberht and the collections of(fredus or friede), and bot, of punishment in See also:life and See also:limb
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As regards the malefactor the community may assume one of four attitudes: it may make See also:war on him; it may have him exposed to the vengeance of those whom he has wronged; it may suffer him to make See also:atonement; it may inflict on him a determinate punishment, See also:death, See also:mutilation or the like." The wite or sum paid to the See also:
Certain crimes, such as murder, See also:rape, See also:arson and See also:burglary, became unamendable or bootless, i.e. placed the offender's life, limb, lands and goods at the king's See also:mercy
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These crimes came to be generally described by the name felony (q.v.)
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Other crimes became punishable by fines which took the place of wites
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These were styled trespasses and correspond to what is now called See also:misdemeanour (q.v.)
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See also:Minor acts of violence, dishonesty or See also:nuisance, were dealt with in seigniorial and See also:borough courts by presentment of the jurors of courts See also:baron and courts;leet, and punished by fine or in some cases by See also:pillory, tumbril or See also:stocks
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See also:Grave acts were dealt with by the See also:sheriff as breaches of the peace
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He sat with the freeholders in the See also:county court, which sat twice a See also:year, or in the See also:hundred court, which sat every four See also:weeks
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So far as this involved dealing with pleas of the crown the sheriff's jurisdiction was abolished and was ultimately replaced by that of the justices or conservators of the peace
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The sheriff then ceased to be a judge in criminal cases, but remained and still is in law responsible for the peace of his county, and is the officer for the See also:execution of the law
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The royal See also:control over crime was effectually established by the itinerant justices sent regularly throughout the See also:realm, who not only dealt with the ordinary proprietary and fiscal rights of the crown but also with the graver crimes (See also:treason and felony), and ultimately were commissioned to See also:deal with the less grave offences now classed as indictable misdemeanours
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The See also:change resulted from the strengthening of royal authority throughout England, which enabled the crown gradually to enlarge the pleas of the crown and to weaken and finally to supersede the criminal jurisdiction, notably of the sheriff, but also of prelates and lords in ecclesiastical and other manors and franchises
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" In the early English laws and constitution there existed a See also:national See also:sovereignty and See also:original criminal jurisdiction, but the ideas of legislative power and crime were very slowly See also:developed." During the 12th See also:century the criminal law was affected by the See also:influence of the See also: The See also:Statute of Treasons (1351) is to a large extent an admixture of Roman with feudal law; and to the same source is probably due the more careful See also:analysis of the See also:mental elements necessary to create criminal responsibility, summed up in the somewhat misleading expression nemo See also:reus est nisi mens sit rea . In the 14th century justices of the peace and See also:quarter sessions were established to deal with offences not sufficiently important for the king's judges, and from that time the course of criminal justice in England has run substantially on the same lines, with the single and temporary interruption caused by the court of See also:star chamber . Germanic Anglo-Saxon law and custom (to be found in See also:Thorpe's Ancient Laws and Institutes of England), do not indicate any adequate or definite See also:division between crimes and causes of civil action, but, like the laws of Babylon, recognize the system and contain the tariffs of compensation for wrongs . The idea of the compensation was originally to put an end (finis) to blood feuds and private war or vengeance . These laws formed the See also:foundation of the criminal law of See also:Germany, including the See also:Netherlands, of England and of Scandinavia . But in each See also:country the development of criminal law has been affected by influences other than Germanic, mainly consisting in an infusion more or less great of ideas derived from Roman law . In England under See also:Alfred some See also:part of the Levitical law (Exod. xxi . 12-15) was incorporated, just as in 1567 the criminal law as to See also:incest in See also:Scotland was taken bodily from See also:Leviticus xviii . The stage which the development of criminal law had reached in England by the reign of See also:Edward the See also:Confessor is thus described by See also:Pollock and See also:Maitland (Hist . Eng . Law, ii . 447): Anglo- " On the See also:eve of the Norman Conquest what we may call Saxon law, the criminal law of England (but it was also the law of torts or civil wrongs) contained four elements which deserve See also:attention: Its past See also:history had in the See also:main consisted of the varying relations between them . We have to speak of outlawry, of the blood feud (faidus), of the tariffs of wer and wile Anglo-Norman See also:period . tion of crimes . See also:order and See also:security of the state . ~' 2 . Offences against the See also:administration of police and against public authority . 3 . Acts injurious to the public in See also:general . . 4 . Offences against the person (life, See also:health, See also:liberty and reputation), and conjugal and parental rights and duties . 5 . Offences See also:relating to property and contracts (including See also:theft, See also:fraud, See also:forgery and malicious damage) . The terminology by which crimes are described by reference to their See also: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. delilti; Span. delitos), and contraventions (Ital. contravenzioni; Span. faltas) . The classification adopted by English law is See also:peculiar to itself, " treason," " felony " and " misdemeanour," with a tentative See also:fourth class described as " summary offences." The particular distinctions between these three classes are dealt with under the titles TREASON; FELONY; MISDEMEANOUR, &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 See also:foreign codes fall under the See also:head of crime . Misdemeanour, roughly but not exactly, corresponds to the French See also:delft, and summary offence to contravention . Elements In all systems of criminal law it is found necessary of criminal to determine the criterion of criminal responsibility, responsi- the mental elements of crime, the degrees of crimin- 6177ty. ality and the point at which the See also:line is to be drawn between intention and See also: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 See also:age, sanity and some degree of freedom from See also: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 See also:accident or in an honest and reasonable belief in circumstances which if true would make it See also:innocent; e.g. when a married person marries again in the honest and reasonable but mistaken belief that the former See also:spouse is dead . Honest and reasonable See also:mistake of fact stands on the same footing as See also:absence of the reasoning See also: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 See also:prohibition of the law against a particular act See also:absolute for all persons who are not infants or lunatics . As a general See also: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 . See also: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, See also:insanity was an absolute See also: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 See also:asylum . There was also at common law a presumption that a married woman committing certain crimes in the presence of her See also:husband did so under his coercion . But under modern decisions and practice the presumption has become feeble almost to inanition (R. v . See also:Mary See also:Baines, 'goo, 69 L.J . Q.B . 681) . Distinctions are also drawn between degrees of See also:guilt or complicity . English criminal law punishes attempts to commit crime if the See also:attempt passes from the stage of See also: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 See also:separate offence if the incitement fails, as the offence of being See also:accessory before the fact or See also:abettor if the offence is committed as a result of the incitement; and it punishes persons who, after a more serious crime--felonyhas been committed, do any act to See also: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 See also:principal offenders, and by persons who are See also:present aiding and abetting the commission of the offence, or who, though not present, counselled or procured the commission of the offence (see AccEssokv) . Be-sides these degrees of crime there is one almost peculiar to English law known as See also: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 See also:scope have been the subject of much controversy, especially with reference to combinations by See also:trade unions . The English law does not, but most European laws do, allow the See also:jury to reduce the penalty @of an offence by finding in their See also: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 See also:report it to the See also: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 See also:good deal of alteration . In the See also: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 See also:writing in Dalai., statutes . The unwritten portion of the law includes tions of (I) principles relating to the excuse or justification of Particular acts or omissions which are prima facie criminal, (2) crimes. the See also:definitions of many offences, e.g. murder, See also:assault, theft, forgery, See also:perjury, See also:libel, See also:riot, (3) parts of the law relating to procedure . The law is very See also:rich in principles and rules embodied in judicial decisions and is extremely detailed and explicit, leaving to the judges very little See also:latitude of See also: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 See also: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 1 " It is founded," said Sir J . Fitzjames See also:Stephen, writing in 1863, " on a set of loose definitions and descriptions of crimes, the most important of which are as old as See also:Bracton . Upon this foundation there was built, principally in the course of the 18th century, an entire and irregular superstructure of acts of See also:parliament, the enactments of which were for the most part intended to See also:supply the deficiencies of the original system . These acts have been re-enacted twice over in the present See also: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 comments and constructions occasioned by particular cases, the great See also:mass of which have arisen within the last fifty years." (View of the Criminal Law of England, by J . Fitzjames Stephen.) The penal laws of modern states classify crimes somewhat differently, but in the main on the same general principles, dividing them into: Classifica- 1 . Offences against the See also:external and See also:internal a See also:man deliberately for the See also:sake of robbing him, and killing a man accidentally in an attempt to rob him . On the other See also:hand, offences which ought to have been criminal were constantly declared by the judges not to fall within the definition of the particular crimes alleged, and the legislature has constantly had to fill up the lacunae in the law as interpreted by the judges . The jurisdiction to deal with crime is primarily territorial, and can be exercised only as to acts done within the territory or territorial See also:waters, or on the See also:ships of the law-giver . See also:Juris- diction . Extra territorium See also:jus dicenti impune non paretur . No state will enforce the penal laws of another nor permit the officer of another state to execute its laws outside its own territory . But See also:international law recognizes the competence of a state to make its criminal law binding on its own subjects wherever they are, and perhaps even to punish foreigners who outside its territory do acts which menace its internal or external security, e.g. by See also:dynamite plots or falsification of See also:coin . Apart from extradition arrangements the national law cannot reach such persons, be they citizens or aliens, until they come within the territory of the state whose law has been broken . The codes of See also:France, Germany and See also:Italy make the penal law national or personal and not territorial . In some See also:British colonies whose legislatures have a derived and limited legislative authority, indirect methods have been taken to deal within the See also:colony with persons who commit offences outside its territory . Throughout the development of the English criminal law it showed and retains one particular characteristic that crime was treated as See also:local, which means not merely that the common law of England was limited to English See also:soil, but that an offence on English soil could be " inquired of, dealt with, tried, deter-See also:mined and punished " only in the particular territorial division of England in which it was committed, which was and is known as the See also:venue (q.v.) . Each township was responsible for crimes within its boundaries, a responsibility made effective by the " view of See also:frankpledge," now obsolete, and the guilt or innocence of every man had to be determined by his neighbours . This rule excluded from trial by the courts of common law, treasons, &c. committed by Englishmen abroad and piracy; and it was not till Henry VIII.'s reign (1536, 1544) that the common-law mode of trial was extended to these offences . The legislature has altered the common law as to numerous offences, but on no settled See also:plan, and except for a bill introduced about 1888, at the instance of the 3rd See also:marquess of See also: |