CHAPTER VIII. ENGLISH RULES OF EVIDENCE.-Pp. 276-325. I. Rules as to the Sanctions under which Eridence is given, 276–279. II. Rules as to the Manner in which Evidence is to be elicited, 280–284. III. Rules as to the Competency of Witnesses, 284– 294. Competency in General, 284. Exceptions- 1. Incompetency of Husbands and Wives, 285-287. 2. Incompetency from Want of Understanding, 287, 288. 3. Incompetency from Want of Religious Belief, 288-291. Rules as to Number of Witnesses, 294, 295. Rules as to Credit of Witnesses, 295–302. In general for the Jury, 295. Credit of Witnesses attacked- -By general Evidence of Bad Character, 295, 296 -By Cross-examination, 296-298. -By Contradiction, 298-300. Evidence of Accomplices, 300. Discrediting the Party's own Wit- IV. Rules as to Competency of Eridence, 302—325. 1. The Burden of Proof, 303–305. -On Prosecutor, 302, 303-When it shifts, 303, 304-as to Inten- 2. Evidence confined to Point at issue, 305–311. 3. Best Evidence must be given, 314-316. Written Instruments, 314. Official Documents, 315. Cross-examining 4. Hearsay is no Evidence, 316–319. Relation of this to the last-mentioned Rule, 316, 317. Sayings of 5. Rules as to Confessions, 319-324. English and Continental Practice, 319. English Rule, 320. What is an Inducement, 320. Older and later Decisions, 320, 321. Qualifi- CHAPTER IX. ENGLISH CRIMINAL LEGISLATION.-Pp. 326–337. Judicial and Parliamentary Legislation, 326–329. Relations of Law A GENERAL VIEW OF THE CRIMINAL LAW OF ENGLAND. CHAPTER I. THE PROVINCE OF CRIMINAL LAW. A and Crime. THE object of this chapter is to show what is the subject- Cap. I. matter to which criminal law relates, and what are the com- Definitions ponent parts of which by the nature of the case it must of Law consist. First, then, what is a law, and what is a crime? A law is a command enjoining a course of conduct. command is an intimation from a stronger to a weaker rational being, that if the weaker does or forbears to do some specified thing the stronger will injure or hurt him.* A crime is an act of disobedience to a law forbidden under pain of punishment. It follows from these definitions that all laws are in one sense criminal, for by the definitions they must be commands, and any command may be disobeyed. one sense. This consequence may appear paradoxical, but it is true. All law To common apprehension, the laws of inheritance are abso- j^^sense 11 lutely unrelated to the criminal law, yet, in fact, they repose upon it. Thus the law is that the eldest son is heir-at-law to his father. This means that all persons, except the eldest son of the dead man—if he has one—are commanded by the sovereign power not to exercise proprietary rights over the land which belonged to him, unless they can show a title to do so. If * Austin's Prov. of Jurisprudence, Lect. I. B CHAP. I. they should exercise such rights and should fail to show such a title, the sovereign would command the sheriff to give possession of the land to the heir-at-law, and to make the intruder pay the costs of the suit; and if the sheriff should fail to execute that command, he would he liable to punishment (amongst other things) by an indictment for not obeying the lawful commands of the sovereign, and to fine and imprisonment on conviction under that indictment. Thus, the ultimate meaning of the phrase, "By law the eldest son is heir to the father," is, that the sovereign commands all persons to act upon that rule, and will, if necessary, force them by the terror of legal punishment to do so. Legal maxims may appear to stand even further from the criminal law than the law of inheritance. It may be said the maxim that the king never dies is part of the law of England, but how can this be resolved into a command? The answer is, that this and other maxims of the same kind are to a great extent subject to the will of courts of justice, which are entrusted by the tacit consent of the sovereign power with a certain discretion in their interpretation, and are to that extent legislators. To the extent of that discretion these maxims are certainly not laws at all, but beyond that discretion they are laws and might be penally enforced. If, for example, a judge, being called upon to apply to a given case the maxim that the king never dies, were expressly to refuse to do so, that refusal might be evidence of judicial misconduct for which he might be made answerable by impeachment or by a criminal information. The extreme improbability of the case has nothing to do with the justice of the principle. The general doctrine well established in English law, that it is a misdemeanor to disobey the lawful commands of the king or the provisions of a public act of parliament, is in exact accordance with it. Though the notions of law and crime are thus, in reality, correlative and co-extensive, and though the phrase "criminal law" may thus be accused of tautology, it may be and generally is used in a sense definite enough for practical purposes, but much narrower. Laws relating to murder, theft, or robbery, would be included under the head of criminal law; whilst those which refer to contracts, inheritance, administration, Popular use of term "criminal law." shipping, landlord and tenant, and the like, would not. What, Chap. I. then, is and what ought to be the principle of this distinction? The first question must be answered by reference to the common use of language, the second by reference to the nature of the things to be classified. According to the common use of language, a crime means something more than mere disobedience to law: it means an act which is both forbidden by law and revolting to the moral sentiments of society. Kobbery or murder would, in common language, be described as crimes, but a trifling offence against the revenue laws would not; but this way of using language, though vivid, is obviously altogether indefinite. For example, it is agreed on all hands that murder is, in the popular use of language, a crime, but what in the popular use of language is a murder? Many acts which the law qualifies by that name would excite little or no feeling of moral detestation. In many states and classes of society they might excite the reverse. For example, a man in a fair duel shoots another for seducing his sister. An American soldier, in the War of Independence, rescues a brother insurgent by shooting an English soldier who had captured him. A man shooting at a domestic fowl with intent to steal, accidentally wounds a person with a stray shot corn, and the wounded man dies of lock-jaw six months afterwards. A midwife puts to death a monstrous birth which, though it had human shape, could not have lived to maturity. Two lovers agree to poison themselves together, one provides the poison, each partakes of it, the one who provided it recovers. Each of these cases is a case of wilful murder; each, therefore, is a capital crime, but in a moral point of view they differ endlessly; and whilst the common use of language might describe some of them as crimes, it would describe others as errors, and possibly approve of some as virtuous acts. It is clear, therefore, that the popular use of language throws no light on the question what sort of violations of law are emphatically crimes. sense of When we inquire what ought to be the principle on which Strict the question should be determined, we must look at the nature thc >hrase of the things to be classified; and here a broad distinction law" acts Though all laws are commands, and as punished B 2 ky law. suggests itself. "criminal |