William Feilden Craies

“ The object of the discipline enforced by the court by proceedings for contempt of court is not now, if it ever was, to vindicate the personal dignity of the judges or to protect them from insult as individuals, but to vindicate the dignity and authority of the court itself and to prevent acts tending to obstruct the due course of justice. ”

“ There are many ways in which the wrong may be committed. In some cases the exercise of the dominion may amount to an act of trespass or to a crime, e.g. where the taking amounts to larceny, or fraudulent appropriation by a bailee or agent entrusted with the property of another (Larceny Acts of 1861 and 1901) . But in such cases, except where money is taken, the civil remedy of the owner is by action for conversion or detention of the property, subject in the case of larceny to the rule that criminal prosecution should precede restitution by the taker. ”

“ In Scotland the law of compensation for breach of contract is substantially the same as in England. In cases of delict or quasi-delict, the measure of reparation is a fair and reasonable compensation for the advantage which the sufferer would, but for the wrong, have enjoyed and has lost as a natural and proximate result of the wrong, coupled with a solatium for wounded feelings. The claim for reparation vests as a debt when it arises and survives to the representatives of the sufferer, and against the representatives of the delinquent. ”

“ Homicide is excusable and not criminal at all when committed either by misadventure or in self-defence. In the former case the homicide is excused; where a man in the course of doing some lawful work, accidentally and without intention kills another, e.g. shooting at a mark and undesignedly hitting and killing a man. The act must be strictly lawful, and death by misadventure in unlawful sports is not a case of excusable homicide. Homicide in self-defence is excusable when the slayer is himself in immediate danger of death, and has done all he could to avoid the assault. ”

“ It provides that, to prove any house to be a common gaming-house, it “shall be sufficient to show that it is kept or used for playing therein at any unlawful game, and that a bank is kept there by one or more of the players exclusively of the others, or that the chances of any game played therein are not alike favourable to all the players, including among the players the banker or other person by whom the game is managed, or against whom the other players stake, play or bet.” Gambling, it will be noticed, is still in this definition connected with some kind of game. ”

“ The court may allow the appeal if they think that the verdict of the jury should be set aside because it is unreasonable, or because it cannot be supported having regard to the evidence, or that the judgment should be set aside on the ground of a wrong decision on any point of law, or that on any ground there was a miscarriage of justice. Power is given to the court to dismiss the appeal if they consider that no substantial miscarriage of justice has occurred, even though they are of opinion that the point raised in the appeal might be decided in favour of the appellant. ”

“ As a review of the discretion of stipendiary magistrates in committing cases for trial, the intervention of the grand jury is in most cases superfluous; and even when the committing justices are not lawyers, it is now a common opinion that their views as to the existence of a case to be submitted to a jury for trial should not be over-ridden by a lay tribunal sitting in private, and in this opinion many grand jurors concur. But the abolition of the grand jury would involve great changes in criminal procedure for which parliament seems to have no appetite. ”

“ The modes of trial have altered with legal development in English as in Roman law (see Action) . Many forms of trial, notably those by ordeal, by wager of battle or of law (see Ordeal and Wager) , and by grand assize, have become obsolete, and new forms have been created by legislation in order to meet altered circumstances of society. Up to a very recent date the tendency of the Roman and English systems was in opposite directions. In the former and in systems founded on it, such as the Scottish and French, trial by the judge became the rule, in the latter trial by judge and jury. ”

“ And Sir James Stephen’s opinion is that, to justify conviction of murder by an act done with intent to commit a felony, the act done must be one dangerous to life or known to be likely to cause death. ”

“ CRIMINAL LAW. By criminal, or penal, law is now understood the law as to the definition, trial and punishment of crimes, i.e. of acts or omissions forbidden by law which affect injuriously public rights, or constitute a breach of duties due to the whole community. The sovereign is taken to be the person injured by the crime, as he represents the whole community, and prosecutions are in his name. ”

“ In an American case, where a person had agreed with a boarding-house keeper for a year, and quitted the house within the time, it was held that the measure of damages was not the price stipulated to be paid, but only the loss caused by the breach of contract. In contracts to marry, a special class of considerations is recognized, and the jury in assessing damages will take notice of the conduct of the parties. The social position and means of the defendant may be given in evidence to show what the plaintiff has lost by the breach of contract. ”

“ Decrees in admiralty, bankruptcy and equity, in the federal courts, are the subjects of an appeal; judgments in actions at law, of a writ of error. On an equity appeal the evidence taken at the original hearing is reported at length to the appellate court, and it has the right to review the conclusions of fact reached by the court below and come to different ones. ”

“ Recent decisions in England have so fully defined the limits of the offence and declared the practice of the courts that it would probably only result in undue licence of the press if the power now carefully and judicially exercised of dealing summarily with journalistic interference with the ordinary course of justice were taken away and the delay involved in submitting the case to a jury were made inevitable. The courts now only act in clear cases, and in cases of doubt can always send the question to a jury. ”

“ The law which punishes treason is a necessary consequence of the idea of a state, and is essential to the existence of the state. Most, if not all, nations have accordingly, at an early period of their history, made provision by legislation or otherwise for its punishment. The principle is universal, though its application has led to differences of opinion. What would have been a capital crime at Rome under Tiberius may be no offence at all in England. ”

“ In England the single-judge system is universal, save in appeal; on the continent of Europe plurality of judges is insisted upon, save in the most trivial cases, where the punishment is insignificant. In most countries of the continent of Europe the whole machinery for the prevention, investigation and punishment of crime, is conducted by what is called the parquet, which represents society as a collective unit and not the individual injured. ”

“ While the jury is in legal theory absolute as to matters of fact, it is in practice largely controlled by the judges. Not only does the judge at the trial decide as to the relevancy of the evidence tendered to the issues to be proved, and as to the admissibility of questions put to a witness, but he also advises the jury as to the logical bearing of the evidence admitted upon the matters to be found by the jury. ”

“ The interrogation and browbeating of the prisoner by the judge, consistent as it may be with the inquisitorial theory of their procedure, is strange to English lawyers, accustomed to see in every criminal trial a fair fight between the prisoner and the prosecution, and not a contest between the judge and the prisoner. The accused may, if he choose, be defended by counsel, and if poor may get legal aid at the public expense if the court certify for it. ”

“ Opinion in England has hitherto been against subjecting a man to serious punishment as a result of conviction before a judge sitting without a jury, and the judges themselves would be the first to deprecate so great a responsibility, and the Criminal Appeal Act 1907, which constituted the court of criminal appeal, recognized the responsibility by requiring a quorum of three judges in order to constitute a court. The same act, by permitting an appeal to persons convicted on indictment both on questions of fact and of law, removed to a great extent any possibility of error by a jury. ”

“ Value of Jury System.—The value of the jury in past history as a bulwark against aggression by the Crown or executive cannot be over-rated, but the working of the institution has not escaped criticism. Its use protracts civil trials. The jurors are usually unwilling and are insufficiently remunerated; and jury trials in civil cases often drag out much longer and at greater expense than trials by a judge alone, and the proceedings are occasionally rendered ineffective by the failure of the jurors to agree. ”

“ It is for the prosecutor to prove by evidence the commission of the alleged offence. No power exists to interrogate the accused unless he consents to be sworn as a witness in his own defence, which since 1898 he may do. The right to cross-examine him even when he is so sworn is limited by law, with the object of excluding inquiry into his past character or into past offences not relevant to the particular charge on which he is being tried. ”

“ Thus the crime of murder, as settled by the existing law, would include offences of such very different moral gravity as killing a man deliberately for the sake of robbing him, and killing a man accidentally in an attempt to rob him. On the other 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. ”

“ In olden days, and even now in theory, the grand jury inquire of their own knowledge, by the oath of good and lawful men of the neighbourhood, into the crime of the county, but in practice the charges against the accused persons are always first submitted to the proper officer of the court. The grand jurors are instructed as to their inquisition by a charge from the judge, as regards the indictments concerning which they are called upon to enquire whether there is a prima facie case to send them for trial to the petty jury. ”

“ What is a reasonable ground it is of course impossible to define, but, in the case of a constable, a charge by a person not manifestly unworthy of credit is generally regarded as sufficient. An accused person who has been bailed may be arrested by his bail, and the police may assist in the arrest. In neither case is a warrant necessary. Nor is it necessary for the apprehension of one against whom the hue and cry is raised. The king cannot arrest in person or by verbal command, as no action would lie against him for wrongful arrest. ”

“ In the United States prosecution or indictment by a grand jury is the rule: the form of indictment is the same, substituting the state or commonwealth of the United States for references to the king, and the conclusions “against the form of the statute” and “against the peace” are still in use. ”