Part 136

"Sir James Fitz James Stephen, in his _History of Criminal Law_, estimates that at the end of the sixteenth century there were about 800 executions per year in England (volume 1, 468). Another sentence in vogue in England before that time was to be hanged, to have the bowels burned, and to be quartered. Beccaria describes the scene where 'amid clouds of writhing smoke the groans of human victims, the crackling of their bones, and the flying of their still panting bowels were a pleasing spectacle and agreeable harmony to the frantic multitude.' (chapter 39.) As late as the reign of Elizabeth, … the sentence of death in England was to be hung, drawn and quartered. Campian, the Jesuit, was tortured before trial until his limbs were dislocated on the rack, and was carried helpless into Westminster Hall for trial before the Chief Justice of England, unable to raise an arm in order to plead not guilty. He was sentenced to be hung, drawn and quartered, which meant legally, that upon being hung he was to be cut down while yet living, and dragged at the tail of a horse, and then before death should release him, to be hewn in pieces, which were to be sent dispersed to the places where the offense was committed or known, to be exhibited in attestation of the punishment, the head being displayed in the most important place, as the chief object of interest. In the process of hanging, drawing and quartering, Froude says that due precautions were taken to prolong the agony. Campian's case is specially interesting, as showing the intervention of a more humane spirit to mitigate the barbarity of the law. As they were about to cut him down alive from the gibbet, the voice of some one in authority cried out: Hold, till the man is dead.' This innovation was the precursor of the change in the law so as to require the sentence to be that he be hanged by the neck until he is dead. It is not generally known that the words 'until he is dead' are words of mercy inserted to protect the victim from the torture and mutilation which the public had gathered to enjoy."

_Austin Abbott, Address before New York Society of Medicine Journal (The Advocate, Minn., 1889, volume 1, page 71)._

CRIMINAL LAW: A. D. 1641-1662. No Man shall be compelled to Criminate himself.

"What … is the history of this rule? … Briefly, these things appear: 1st. That it is not a common law rule at all, but is wholly statutory in its authority. 2d. That the object of the rule, until a comparatively late period of its existence, was not to protect from answers in the king's court of justice, but to prevent a usurpation of jurisdiction on the part of the Court Christian (or ecclesiastical tribunals). 3d. That even as thus enforced the rule was but partial and limited in its application. 4th. That by gradual perversion of function the rule assumed its present form, but not earlier than the latter half of the seventeenth century. … But nothing can be clearer than that it was a statutory rule. … {1984} The first of these were 16 Car. I., c. 2 (1641) and provided that no one should impose any penalty in ecclesiastical matters, nor should 'tender … to any … person whatsoever any corporal oath whereby he shall be obliged to confess or accuse himself of any crime or any … thing whereby he shall be exposed to any censure or penalty whatever.' This probably applied to ecclesiastical courts alone. The second (13 Car. II., c. 12, 1662) is more general, providing that 'no one shall administer to any person whatsoever the oath usually called ex officio, or any other oath, whereby such persons may be charged or compelled to confess any criminal matter.' … The Statute of 13 Car. II. is cited in Scurr's Case, but otherwise neither of them seems to have been mentioned; nor do the text-books, as a rule, take any notice of them. Henceforward, however, no question arises in the courts as to the validity of the privilege against self-crimination, and the statutory exemption is recognized as applying in common-law courts us well as in others. … This maxim, or rather the abuse of it in the ecclesiastical courts, helps in part to explain the shape which the general privilege now has taken. … We notice that most of the church's religious investigations, … were conducted by means of commissions or inquisitions, not by ordinary trials upon proper presentment; and thus the very rule of the canon law itself was continually broken, and persons unsuspected and unbetrayed 'per famam' were compelled, 'seipsum prodere,' to become their own accusers. This, for a time, was the burden of the complaint. … Furthermore, in rebelling against this abuse of the canon-law rule, men were obliged to formulate their reasons for objecting to answer the articles of inquisitions. … They professed to be willing to answer ordinary questions, but not to betray themselves to disgrace and ruin, especially as where the crimes charged were, as a rule, religious offences and not those which men generally regard as offences against social order. In this way the rule began to be formulated and limited, as applying to the disclosure of forfeitures and penal offences. In the course of the struggle the aid of the civil courts was invoked, … and towards the end of the seventeenth century, … it found a lodgement in the practice of the Exchequer, of Chancery, and of the other courts. There had never been in the civil courts any complaint based on the same lines, or any demand for such a privilege. … But the momentum of this right, wrested from the ecclesiastical courts after a century of continual struggle, fairly carried it over and fixed it firmly in the common-law practice also."

_John H. Wigmore, Nemo Tenetur seipsum Prodere (Harvard Law Review, volume 5, pages 71-88)._

CRIMINAL LAW: A. D. 1660-1820. 187 Capital Offenses added to Criminal Code in England.

"From the Restoration to the death of George III.,—a period of 160 years,—no less than 187 capital offenses were added to the criminal code. The legislature was able, every year, to discover more than one heinous crime deserving of death. In the reign of George II. thirty-three Acts were passed creating capital offenses; in the first fifty years of George III., no less than sixty-three. In such a multiplication of offenses all principle was ignored; offenses wholly different in character and degree were confounded in the indiscriminating penalty of death. Whenever an offense was found to be increasing, some busy senator called for new rigor, until murder became in the eye of the law no greater crime than picking a pocket, purloining a ribbon from a shop, or pilfering a pewter-pot. Such law-makers were as ignorant as they were cruel. … Dr. Johnson,—no squeamish moralist,—exposed them; Sir W. Blackstone, in whom admiration of our jurisprudence was almost a foible, denounced them. Beccaria, Montesquieu, and Bentham demonstrated that certainty of punishment was more effectual in the repression of crime, than severity; but law-givers were still inexorable."

_T. E. May, Constitutional History of England (Widdleton's edition), volume 2, pages 553-554._

CRIMINAL LAW: A. D. 1695. Counsel allowed to Persons indicted for High Treason.

"Holland, following the early example of Spain, always permitted a prisoner the services of a counsel; and if he was too poor to defray the cost, one was furnished at the public charge. In England, until after the fall of the Stuarts, this right, except for the purposes of arguing mere questions of law, was denied to every one placed on trial for his life. In 1695, it was finally accorded to persons indicted for high treason. Even then it is doubtful, says Lord Campbell, whether a bill for this purpose would have passed if Lord Ashley, afterwards Earl of Shaftesbury and author of the 'Characteristics,' had not broken down while delivering in the House of Commons a set speech upon it, and, being called upon to go on, had not electrified the House by observing: 'If I, sir, who rise only to give my opinion upon a bill now pending, in the fate of which I have no personal interest, am so confounded that I am unable to express the least of what I propose to say, what must the condition of that man be, who, without any assistance, is called to plead for his life, his honor, and for his posterity?'"

_D. Campbell, The Puritan in Holland, England and America, volume 2, page 446._

CRIMINAL LAW: A. D. 1708. Torture.

The fact that judicial torture, though not a common law power of the courts, was used in England by command of Mary, Elizabeth, James I and Charles I, is familiar to all. It was sanctioned by Lord Coke and Lord Bacon, and Coke himself conducted examinations by it. It was first made illegal in Scotland in 1708; in Bavaria and Wurtemburg in 1806; in Baden in 1831.

_Austin Abbott, Address before New York Society of Medicine Journal, (The Advocate, Minn., 1889, volume 1, page 71)._

CRIMINAL LAW: A. D. 1725. Knowledge of Right and Wrong the test of Responsibility.

The case of Edward Arnold, in 1725, who was indicted for shooting at Lord Onslow, seems to be the earliest case in which the knowledge of right and wrong becomes the test of responsibility.

_American Law Review, volume 15, pages 720-722._

CRIMINAL LAW: A. D. 1770. Criminal Law of Libel.

"In this case [Case of the North Briton Junius' Letter to the King, tried before Lord Mansfield and a special jury on the 2nd June 1770] two doctrines were maintained which excepted libels from the general principles of the Criminal Law—firstly, that a publisher was criminally responsible for the acts of his servants, unless he was proved to be neither privy nor to have assented to the publication of a libel; secondly, that it was the province of the Court alone to judge of the criminality of the publication complained of. The first rule was rigidly observed in the Courts until the passing of Lord Campbell's Libel Act in 1843 (6 and 7 Vict., c. 96). The second prevailed only until 1792, when Fox's Libel Act (32 Geo. III, c. 60) declared it to be contrary to the Law of England. … {1985} A century's experience has proved that the law, as declared by the Legislature in 1792, has worked well, falsifying the forebodings of the Judges of the period, who predicted 'the confusion and destruction of the Law of England' as the result of a change which they regarded as the subversion of a fundamental and important principle of English Jurisprudence. Fox's Libel Act did not complete the emancipation of the Press. Liberty of discussion continued to be restrained by merciless persecution. The case of Sir Francis Burdett, in 1820, deserves notice. Sir Francis had written, on the subject of the 'Peterloo Massacre' in Manchester, a letter which was published in a London newspaper. He was fined £2,000 and sentenced to imprisonment for three months. The proceedings on a motion for a new trial are of importance because of the Judicial interpretation of the Libel Act of 1792. The view was then stated by Best, J. (afterwards Lord Wynford), and was adopted unanimously by the Court, that the statute of George III. had not made the question of libel one of fact. If it had, instead of removing an anomaly, it would have created one. Libel, said Best, J., is a question of law, and the judge is the judge of the law in libel as in all other cases, the jury having the power of acting agreeably to his statement of the law or not. All that the statute does is to prevent the question from being left to the jury in the narrow way in which it was left before that time. The jury were then only to find the fact of the publication and the truth of the innuendoes, for the judges used to tell them that the intent was an inference of law to be drawn from the paper, with which the jury had nothing to do. The legislature have said that this is not so, but that the whole case is for the jury (4 B. and A. 95). The law relating to Political Libel has not been developed or altered in any way since the case of R. v. Burdett. If it should ever be revived, which does not at present appear probable, it will be found, says Sir James Stephen, to have been insensibly modified by the law as to defamatory libels on private persons, which has been the subject of a great number of highly important judicial decisions. The effect of these is, amongst other things, to give a right to everyone to criticise fairly—that is, honestly, even if mistakenly—the public conduct of public men, and to comment honestly, even if mistakenly, upon the proceedings of Parliament and the Courts of Justice. (History of the Criminal Law, II., 376.) The unsuccessful prosecution of Cobbett for an article in the 'Political Register,' in 1831, nearly brought to a close the long series of contests between the Executive and the Press. From the period of the Reform Act of 1832, the utmost latitude has been permitted to public writings, and Press prosecutions for political libels, like the Censorship, have lapsed."

_J. W. Ross Brown, Law Magazine & Review, 4th ser., volume 17, page 197._

CRIMINAL LAW: A. D. 1791. Criminals allowed Counsel.

"When the American States adopted their first constitutions, five of them contained a provision that every person accused of crime was to be allowed counsel for his defence. The same right was, in 1791, granted for all America in the first amendments to the Constitution of the United States. This would seem to be an elementary principle of justice, but it was not adopted in England until nearly half a century later, and then only after a bitter struggle."

_D. Campbell, The Puritan in Holland, England and America, volume 1, page 70_.

CRIMINAL LAW: A. D. 1818. Last Trial by Battle.

"The last appeal of murder brought in England was the case of Ashford v. Thornton in 1818. In that case, after Thornton had been tried and acquitted of the murder of Mary Ashford at the Warwick Assizes her brother charged him in the court of king's bench with her murder, according to the forms of the ancient procedure. The court admitted the legality of the proceedings, and recognized the appellee's right to wage his body; but as the appellant was not prepared to fight, the case ended upon a plea of autrefois acquit interposed by Thornton when arraigned on the appeal. This proceeding led to the statute of 59 Geo. III., c. 46, by which all appeals in criminal cases were finally abolished."

_Hannis Taylor, Origin and Growth of the English Constitution, part 1, page 311._

See, also, WAGER OF BATTLE.

CRIMINAL LAW: A. D: 1819. Severity of the former Criminal Law of England.

"Sir James Mackintosh in 1819, in moving in Parliament for a committee to inquire into the conditions of the criminal law, stated that there were then 'two hundred capital felonies on the statute book.' Undoubtedly this apparent severity, for the reasons stated by Sir James Stephen, is greater than the real severity, since many of the offenses made capital were of infrequent occurrence; and juries, moreover, often refused to convict, and persons capitally convicted for offenses of minor degrees of guilt were usually pardoned on condition of transportation to the American and afterwards to the Australian colonies. But this learned author admits that, 'after making all deductions on these grounds there can be no doubt that the legislation of the eighteenth century in criminal matters was severe to the highest degree, and destitute of any sort of principle or system.'"

_J. F. Dillon, Laws and Jurisprudence of England and America, page 366._

CRIMINAL LAW: A. D. 1825. "Ticket-of-leave" system established.

"The 'ticket-of-leave' system [was] established under the English laws of penal servitude. It originated under the authority of the governors of the penal colonies, and was the first sanctioned by Parliament, so far as the committee are aware, by an Act 5 Geo. IV., chapter 34. Subsequently, when transportation for crime was abolished by the Acts 16, 17 Vict., chapter 99 (A. D. 1853) and 20, 21 Vict., chapter 3, and system of home prisons established, the 'license' or ticket-of-leave system was adopted by Parliament, in those acts, as a method of rewarding convicts for good conduct during imprisonment. By further acts passed in 1864, 1871 and 1879, the system has been brought gradually into its present efficacy."

_Report of Committee on Judicial Administration, and Remedial Procedure (9 American Bar Association Report, 317)._

{1986}

CRIMINAL LAW: A. D. 1832-1860. Revision of Criminal Code in England.

"With the reform period commenced a new era in criminal legislation. Ministers and law officers now vied with philanthropists, in undoing the unhallowed work of many generations. In 1832, Lord Auckland, Master of the Mint, secured the abolition of capital punishment for offences connected with coinage; Mr. Attorney-general Denman exempted forgery from the same penalty in all but two cases, to which the Lords would not assent; and Mr. Ewart obtained the like remission for sheep-stealing, and other similar offences. In 1833, the Criminal Law Commission was appointed, to revise the entire code. … The commissioners recommended numerous other remissions, which were promptly carried into effect by Lord John Russell in 1837. Even these remissions, however, fell short of public opinion, which found expression in an amendment of Mr. Ewart, for limiting the punishment of death to the single crime of murder. This proposal was then lost by a majority of one; but has since, by successive measures, been accepted by the legislature;—murder alone, and the exceptional crime of treason, having been reserved for the last penalty of the law. Great indeed, and rapid, was this reformation of the criminal code. It was computed that, from 1810 to 1845, upwards of 1,400 persons had suffered death for crimes, which had since ceased to be capital."

_T. E. May, Constitutional History of England (Widdleton's edition), volume 2, pages 557-558._

CRIMINAL LAW: A. D. 1843. Lord Campbell's Libel Act, and Publisher's Liability.

"In the 'Morning Advertiser' of the 19th of December, 1769, appeared Junius's celebrated letter to the king. Inflammatory and seditious, it could not be overlooked; and as the author was unknown, informations were immediately filed against the printers and publishers of the letter. But before they were brought to trial, Almon, the bookseller, was tried for selling the 'London Museum,' in which the libel was reprinted. His connection with the publication proved to be so slight that he escaped with a nominal punishment. Two doctrines, however, were maintained in this case, which excepted libels from the general principles of the criminal law. By the first, a publisher was held criminally answerable for the acts of his servants, unless proved to be neither privy nor assenting to the publication of a libel. So long as exculpatory evidence was admitted, this doctrine was defensible; but judges afterwards refused to admit such evidence, holding that the publication of a libel by a publisher's servant was proof of his criminality. And this monstrous rule of law prevailed until 1843, when it was condemned by Lord Campbell's Libel Act."

_T. E. May, Constitutional History of England (Widdleton's edition), volume 2, pages 113-114._

"And be it enacted, that whensoever, upon the trial of any indictment or information for the publication of a libel, under the plea of not guilty, evidence shall have been given which shall establish a presumptive case of publication against the defendant by the act of any other person by his authority, it shall be competent to such defendant to prove that such publication was made without his authority, consent, or knowledge, and that the said publication did not arise from want of due care or caution on his part."

_Statute 6 & 7 Vic., c. 96, s. 7._

CRIMINAL LAW: A. D. 1848. The English Court of Criminal Appeal.

"England has not yet got her court of Criminal Appeal, although the Council of Judges, in their belated scheme of legal reform, recommend the legislature to create one. Questions whether an action should be dismissed as 'frivolous or vexatious,' disputes about' security for costs,' and the 'sufficiency of interrogatories' or 'particulars,' and all manner of trivial causes affecting property or status, are deemed by the law of England sufficiently important to entitle the parties to them, if dissatisfied with the finding of a court of first instance, to submit it to the touchstone of an appeal. But the lives and liberties of British subjects charged with the commission of criminal offences are in general disposed of irrevocably by the verdict of a jury, guided by the directions of a trial judge. To this rule, however, there are two leading exceptions. In the first place, any convicted prisoner may petition the sovereign for a pardon, or for the commutation of his sentence; and the royal prerogative of mercy is exercised through, and on the advice of the Secretary of State for the Home Department. In the second place, the English machine juridical notwithstanding its lack of a properly constituted Court of Criminal Appeal, is furnished with a kind of 'mechanical equivalent' therefor, in the 'Court for Crown Cases Reserved,' which was established by act of Parliament in 1848 (11 & 12 Vict. c. 78)."

_The English Court of Criminal Appeal (The Green Bag, volume 5, page 345)._

CRIMINAL LAW: A. D. 1854. Conflict between United States Constitution and a Treaty.

"About 1854, M. Dillon, French consul at San Francisco, refused to appear and testify in a criminal case. The Constitution of the United States (Amendment VI.), in criminal cases grants accused persons compulsory process for obtaining witnesses, while our treaties of 1853, with France (Art. II.) says that consuls 'shall never be compelled to appear as witnesses before the courts.' Thus there was a conflict between the Constitution and the treaty, and it was held that the treaty was void. After a long correspondence the French Consuls were directed to obey a subpoena in future."

_Theodore D. Woolsey, Introduction to the Study of International Law [6th edition], page 157, note._

CRIMINAL LAW: A. D. 1877. "Indeterminate Sentences."

"This practice, so far as the committee can ascertain, has been adopted in the states of New York and Ohio only. … The Ohio statute has been taken mainly from that which was adopted in New York, April 12, 1877."

_Report of Committee on Judicial Administrations, and Remedial Procedure (9 American Bar Association Report, page 313)._

CRIMINAL LAW: A. D. 1893. Criminal Jurisdiction of Federal Courts.