our own law, in relation to those general principles. Thus the Chap. I. third chapter treats of the definition of crime in general; the fourth, of the English definitions of particular crimes; the fifth, of criminal procedure in general, illustrated by a comparison of the English and French systems; the sixth, of the peculiarities of English criminal procedure; the seventh, of the principles of evidence in general; the eighth, of English rules of evidence; and the ninth, of English criminal legislation—the way in which the law is made. The work concludes with detailed accounts of four English and three French criminal trials, intended to illustrate the practical operation of our own and the French systems. CHAPTER II. ure antece of crimes and punish ments. HISTORICAL SKETCH OF ENGLISH CRIMINAL LAW. Chap. Ii. In the last chapter I gave an analysis of criminal law in Object and general, according to the order of thought. In the present arrange- chapter I propose to give a sketch of the construction of mcnt of the chapter. English criminal law, according to the order of time. The Historitwo modes of viewing the subject require a different arrangecally, law of proced- ment. In the order of thought, the law of crimes and punishdent to law ments precedes the law of criminal procedure, inasmuch as it is necessary to understand the object to be attained before it is possible to estimate the means employed for its attainment. In the order of time, the law of criminal procedure precedes the law of crimes and punishments; for definitions of crimes, the general principles which regulate the view which the courts take of them, and the provisions for their punishment, have, in this country, been, to a great extent, the creatures of the courts of justice. According to the oldest theory, the criminal law, as well as the rest of the common law of the land, was an unwritten tradition, in Jhe keeping of the judges, who, from the earliest times to the present day, have enjoyed a qualified power of legislation, by virtue of their right to declare with authority what the law is. That part also of the criminal law which has been expressly enacted by the supreme legislature has always been made with express reference to the existing state of things; and the changes made by legislation, in definitions of crimes and the apportionment of punishments, have been deeper and wider than the alterations introduced into the rules of procedure. The law of crimes and punishments has been more than once completely recast, and is composed, to a great extent, of statutes, of which few are fifty years old. The courts by which the law is administered have undergone few changes, and it is possible to trace the steps by which they were formed out Chap. II. of institutions which existed in the time of Henry III. For these reasons, I begin this general outline of the English criminal law with an account of the construction of our present system of criminal procedure, which I shall consider under the following heads :— 1. The courts of justice and the mode of trial. 2. The apprehension of offenders and the preparation of the case for trial. It might appear more natural to begin with the last of these two heads; but the first gives a general notion of the character of the system, without which the discussion of the second would be scarcely intelligible. The first systematic account of the criminal courts and their Justices in procedure is to be found in the second part of the second eyre" book of Bracton's work on the laws and customs of England, and the germ of the criminal procedure of our own times may be traced in that of the courts of the justices of eyre, of which he gives a minute description. The first records of the appointment of Justices in eyre (in i(inere) occur in the 22d Henry II. A. D. 1176.* They were succeeded in the 4th Edward III. A. D. 1327,t by the justices of assize, nisi prius, and oyer and terminer, who have continued for upwards of 530 years to administer the most important part of the criminal justice of the nation. In order to show the original character of the institution, and to explain the different changes which in the course of time have been introduced into its working, it will be necessary, in the first place, to say something of the state of things which preceded its establishment, for the Norman kings seem to have used, for the purpose of discharging their duties, the institutions which they found existing amongst the people whom they had conquered. Saxon The Anglo-Saxons had two modes of procedure altogether Anglodistinct, and the distinction was natural enough in a very criminai rude state of society. It depended not on the nature of the procedure, crime, but on the quantity of the evidence. If a criminal was *Hale, Hist. Com. Law, 170. 1 Madox, Exch. 122. CHAP. II. taken in the fact; if the murderer was discovered with the knife in his hand; or if the thief was taken, to use the expressive language of the law, "hand habend," or "bakbarend," he was liable to the law of infangthief—that is, the constable, sheriff, or lord of the franchise, might instantly put him to death without further inquiry. If the criminal were not taken in the fact, his trial was altogether a different matter. The elaborate processes by which criminal charges are investigated in the present day appear to have been altogether unknown to the Anglo-Saxons. To prove by the combination of various circumstances that a crime has been committed by a particular person, though no one saw him do it, appears, to simple and half-barbarous nations, a feat beyond human wisdom. The question by which Daniel shook the credit of the elder obviously produced upon those who heard it an impression of almost supernatural sagacity: it would be considered in our own days a very commonplace effort of ingenuity. The Anglo-Saxons altogether renounced the attempt to make such discoveries. If the criminal was not taken in the fact, and executed on the spot, his fate depended almost entirely on his character. He might be accused in any one of several specified ways, and if accused he was condemned without further evidence, unless he could bring a certain specified number of compurgators to swear to his innocence. The accusation might be made either by the hundred, by the ceorls of the township (if the prisoner were a ceorl), or by the injured party, who, however, had to bring seven compurgators to swear that he was not actuated by malice. If the person accused were of inferior rank, and if his lord and two thanes swore to his character, he was entitled to be acquitted on his own oath and on those of a certain number of his neighbours, or to appeal to the ordeal of boiling water or hot iron. If the lord refused his testimony, the ordeal was more severe, and the compurgators required more numerous. If he were a thane, the terms were somewhat different, but the principles of the trial were the same.* Weres and alternative punishments. The consequence of conviction was, the payment to the person injured, of a were, or penalty, proportioned to the offence: Palg. Eng. Com. ch. vii. pp. 210—215. * is possible to trace the steps by which they were formed out CHAP. II. of institutions which existed in the time of Henry III. For these reasons, I begin this general outline of the English criminal law with an account of the construction of our present system of criminal procedure, which I shall consider under the following heads : 1. The courts of justice and the mode of trial. 2. The apprehension of offenders and the preparation of the case for trial. It might appear more natural to begin with the last of these two heads; but the first gives a general notion of the character of the system, without which the discussion of the second would be scarcely intelligible. The first systematic account of the criminal courts and their Justices in procedure is to be found in the second part of the second eyre. book of Bracton's work on the laws and customs of England, and the germ of the criminal procedure of our own times may be traced in that of the courts of the justices of eyre, of which he gives a minute description. The first records of the appointment of Justices in eyre (in itinere) occur in the 22d Henry II. A.D. 1176.* They were succeeded in the 4th Edward III. A. D. 1327,† by the justices of assize, nisi prius, and oyer and terminer, who have continued for upwards of 530 years to administer the most important part of the criminal justice of the nation. In order to show the original character of the institution, and to explain the different changes which in the course of time have been introduced into its working, it will be necessary, in the first place, to say something of the state of things which preceded its establishment, for the Norman kings seem to have used, for the purpose of discharging their duties, the institutions which they found existing amongst the people whom they had conquered. Saxon The Anglo-Saxons had two modes of procedure altogether Anglodistinct, and the distinction was natural enough in a very criminal rude state of society. It depended not on the nature of the procedure. crime, but on the quantity of the evidence. If a criminal was |