instances criminals of distinction, convicted of offences against the state, were permitted to choose whatever form of death appeared to them least painful, as happened in the case of Seneca, who was condemned for having been privy to a conspiracy against the Emperor Nero, and chose to expire in a warm bath after having his veins opened.1 1 According to popular tradition, when the Duke of Clarence, brother of Edward IV., was condemned to death, he very whimsically chose to be drowned in a butt of Malmsey. Hume's Hist., vol. iii. p. 363. CHAPTER V. OF THE CRIMINAL LAW OF FRANCE AND BRITAIN. L-FRENCH LAW. BEFORE the Revolution of 1789 the criminal laws of France Criminal were arbitrary and confused, and stained by the most wanton system. cruelty. The first National Assembly in 1791 improved the penal system, remodelled the criminal courts, and introduced publicity and trial by jury. Since then the body of penal law has been entirely recast, and now consists of the Code d'Instruction Criminelle of 1808, and of the Code Penal of 1810, both of which were revised in 1832, besides numerous laws concerning special matters, forming a collection much more considerable than that of the codes. According to the French penal system offences are treated under three heads. 1. Crimes, which are tried before a jury and punished by severe or infamous punishments. 2. Delicts, which are tried by the correctional tribunals without a jury, and are punished by imprisonment for a time in a house of correction, temporary privation of certain civil rights, or a fine. 3. Contraventions, which are petty offences tried by the simple police, and punished by imprisonment not exceeding five days, and fines not exceeding fifteen francs. jury. All criminal prosecutions in France are conducted by a Trial by public prosecutor appointed by Government. The jury consists of twelve persons. Originally the verdict could be returned by a simple majority; but under the law of 28th April 1832 no decision can be given against the accused Principal punishments. Ancient system. A similar except by a majority of more than seven votes. By the Penal Code all crimes are defined and all punishments are fixed, but with a maximum and a minimum as regards certain punishments. The principal punishments now in force in France are death, forced labour for life or for a limited time, deportation for life to some place beyond the Continental territory of France, banishment from the empire for a fixed period, detention in a fortress, imprisonment in a house of correction, privation of civil rights, and pecuniary fine. Formerly there were five modes of inflicting capital punishment in France :-Burning alive, breaking on the wheel, hanging, beheading, and quartering. To these were sometimes added extraordinary tortures, such as tearing off the flesh from the living body with red-hot pincers, pouring molten lead and brimstone into the raw wounds, cutting out the tongue, and similar atrocities, which, though carefully recorded in judicial sentences, almost stagger belief.1 Under the ancient regime nobles were beheaded, while meaner criminals were hanged; but now all are reduced to the same level, as every one condemned to death is beheaded by the Guillotine. guillotine. This machine, though surrounded by painful associations from the great number of its victims during the Reign of Terror, was introduced and is retained from motives of humanity, because it inflicts less pain than decapitation by the axe or the sword as practised in other countries. The proposal to abolish the punishment of death, supported by Robespierre, was rejected by the National Assembly. The question as to the mode of execution was a question of equality. After the Revolution of 1848 the punishment of death was abolished for all political crimes; but it was reestablished in 1853 for all criminal attempts against the head of the state.2 1 When General Kleber was assassinated by a fanatic in Egypt in June 1800, the murderer was put to death by impalement, which is said to be the punishment of assassins by the law of Turkey. Ortolan, Eléments du Droit Penal, Paris, 1855, p. 69. provements. By the law of 28th April 1832 the Penal Code was greatly Recent imimproved by a general reduction in the scale of punishments; many crimes formerly capital were declared to be so no longer, and the barbarous penalties of mutilation, branding, and the iron collar, were entirely abolished. The penalty of confiscation of goods was abrogated after the Restoration by a law of Louis XVIII. Criminals sentenced to death, to forced labour for life, or to deportation, were formerly subjected to what was called civil death, involving the loss of property and all civil rights; but that penalty, after being long condemned as inexpedient, was finally abolished by the law of 31st May 1854.1 II.-BRITISH CRIMINAL LAW. crimes. By the law of England crimes are classed under the heads Classificaof felony and misdemeanour. Treason is a higher kind of tion of felony, and a misdemeanour is an offence lower in the scale of crime than felony, but separated from it by an arbitrary line. "The chief practical difference consists in the legal incidents attaching to conviction of these crimes. In capital felonies the prisoner forfeits both his real and personal estate. In felonies not capital he forfeits only his personal estate. In misdemeanours the prisoner forfeits nothing." Besides these classes of indictable crimes there are many statutory offences subject to the summary jurisdiction of Justices of the Peace. The distinction between felony and misdemeanour is unknown in the law of Scotland. Sentence of death by that law involves only a forfeiture of movables. In all other cases not capital, even the movables are not forfeited, except in a few crimes where this is made part of the punishment, and in outlawry.3 One of the great defects in the English system of criminal How proprocedure, is the want of a public prosecutor, such as exists Ortolan, Eléments du Droit Penal, Broom's Com., p. 891. p. 715. 2 Paterson's Compendium, p. 342. 3 2 Hume's Criminal Law, p. 483 492. secuted. Verdict of jury. in France and Scotland. Any member of the community, generally speaking, may prosecute for all offences in the name of the sovereign, but the task is usually devolved on the person injured by the crime, though, in some cases, the prosecution is conducted by the Crown. "To leave each individual in the community," says Lord Brougham, “the power of prosecuting for all offences in the name of the sovereign, but at his discretion, subject to the power of staying his proceedings, vested in the sovereign, and at his own cost, subject to the court which tries the case allowing his reimbursement; to burden the injured party with the expense and trouble of bringing to justice him by whom he has been injured; to let wealthy offenders buy off their prosecutor, while poor men must stand their trial; to divide the responsibility of a culprit's escape, who ought to be convicted, and of an innocent man's vexation and trial, who ought never to have been tried, among three-and-twenty country gentlemen or tradesmen in towns, while no professional man is answerable at all either for the omission or the oppression; this is the English system of prosecution, and anything so bad, we may safely affirm, exists in no other country under the sun."1 In Scotland, the Lord Advocate and his deputies, who are barristers, are charged with the duty of prosecuting all crimes, acting with the assistance of procurators-fiscal, who take the initiative, and collect the evidence in all criminal proceedings. Before inferior courts the procurator-fiscal, who is a solicitor, not a barrister, acts as prosecutor. The person injured, or his kinsmen, but not strangers, may also prosecute in certain cases; but they can only do so with the concurrence of the public prosecutor. The jury which tries the prisoner in England consists of twelve men, and their verdict must be unanimous. In Scotland, the jury in criminal trials consists of fifteen, and the verdict may be returned by a majority. There seems no good reason why the number of the jurymen should not be reduced to twelve; but in no case should a bare majority be allowed to return a verdict against the accused, as involving too great 1 Lord Brougham, British Constitution, 1861, p. 329. |