SUMMARY OF HISTORY. 219 or less skill-usually with almost none-but representing CH. XXI the aggregate result of a great deal of laborious drudgery, performed as a rule with more accuracy and care than could be expected in work so tiresome and usually so very poorly paid. To sum up in a few words the contents of this chapter. The following, in a highly condensed form, is the history of the Criminal Law in England. 1. In the time of Henry III. the Criminal Law consisted of eleven known offences, nearly all of which were capital, and of an indefinite number of minora et leviora crimina. Its definitions and doctrines were crude and unsettled. 2. Between Bracton and Coke the definitions and doctrines of Bracton's times were to a considerable extent settled and greatly developed, and about twenty statutory felonies and as many misdemeanours were added to the crimes known to Bracton. The Court of Star Chamber was one great agent in bringing about this change as to misdemeanours. 3. Between the days of Coke and those of Blackstone the common law principles and definitions of crimes were completely settled, Hale and Foster having contributed more than any other writers to their settlement, and much having been done in the same direction by judicial decisions, especially in the early part of the eighteenth century. Owing mainly to the crudity of the Common Law, an immense quantity of fragmentary occasional legislation had taken place, by which the number of capital felonies had been increased, according to Blackstone, to 160, and the number of statutory misdemeanours to a very considerable, though ill-ascertained amount. 1 4. From the days of Blackstone to the present time numerous attempts have been made to codify the law. They have been partially, but only partially, successful, about half of it having been reduced to a statutory form twice over, namely, once in 1826-32, and again in 1861. 5. A number of minor offences were in early times everybody felt that such changes made no difference, and were indeed rather judicious than otherwise? 1 Written in 1882. 220 SUMMARY OF HISTORY. CH. XXI. punished by the sheriffs' tourn and the courts-leet of manors, and the Ecclesiastical Courts had a wide jurisdiction over every kind of conduct which could be regarded as sinful. The courts-leet and sheriffs' tourns fell into disuse before the sixteenth century, though to this day they continue to exercise a very trifling jurisdiction. The Ecclesiastical Courts were totally abolished in 1640 and though they were revived in 1661, their procedure was so much altered, especially by the abolition of the ex-officio oath, that they have fallen into almost entire disuse for all purposes except the discipline of the clergy. The offences which were formerly dealt with by the courtsleet and sheriffs' tourns, and a certain number of the offences formerly dealt with in the Ecclesiastical Courts, are now disposed of by the Courts of Summary Jurisdiction, which in the course of the last century and a half have acquired by many Acts of Parliament very extensive powers. In the following chapters most of these matters will be stated in full detail. PARTIES-ATTEMPTS-CONSPIRACIES. 221 CHAPTER XXII. OF PARTIES TO THE COMMISSION OF CRIMES, AND OF IN- THE first subject to be considered in reference to the sub- CH.XXII. stantive criminal law is that of the parties to crimes and of degrees in the commission of crimes-matters which are obviously closely connected with each other. The facts to which the law has to be applied must always, from the nature of the case, be more or less as follows: A crime must first occur to the mind, it must then be considered and determined upon, preparations more or less extensive must, in most cases, be made for it, and it must be carried into execution. The execution may either be prevented or may be fully carried out, in which case it may either accomplish, or fail to accomplish, the full object which the criminal proposed to himself. Finally, after a crime has been committed, the person who committed it usually wishes to conceal or to profit by it. In each of these stages one person, or more persons than one, may be engaged, and they may or may not receive assistance from others. It ought also to be observed that apart from every general doctrine as to attempts, many actions which under any circumstances would be regarded as crimes, are in the nature of attempts to commit some further crime. For instance, every crime against the person must of necessity involve an assault. An assault is not less an assault because it is intended to be the first step towards murder, or rape, or robbery. So forgery, 222 ATTEMPTS-VOLUNTAS PRO FACTO. CH.XXII. coining, and the offering of bad money, are attempts to defraud, though they may not in fact produce the desired result; and the same remark applies to perjury. Treason, again, at least in its highest form, is essentially an attempt to subvert the established Government. If it succeeds fully it ceases to be treason and becomes a successful revolution or new departure in the political history of the country. These are the different facts relating to the subjects with which the Criminal Law has to deal. The following is the history of the manner in which the law relating to attempts to commit crimes arrived at its present state. The first general rule upon the subject with which I am acquainted was that in cases of attempts to murder the will was to be taken for the deed when it was accompanied by overt acts clearly indicating the intention of the party. Coke, in his exposition of the Statute of Treasons (25 Edw. 3, st. 5, c. 2), refers to this principle, regarding apparently the provision as to compassing and imagining the king's death as an illustration of it, and he refers to instances which occurred some time before the statute in which offenders who had clearly shown their intention to kill were punished as for murder, although their object was not carried out. 1 Two of the cases to which he refers are abstracted by Fitz Herbert, and are given in the note. 1 "Berr. [Sir W. Beresford, Chief-Justice of the Common Pleas], dit que devant luy et ces cōpaign un garson fuit arr de ceo q il voill' au emport les bns son mastr il vient al lite son maistr lou son mastr fuit "dormant et il trechia (trancha) duremt en le goul' issint qe il entend q il au "trench son gorge et se treit et son mastr cria et ses vicens oier ceo et prist 'le garson et sur ceo fuit arr. Berr. apres ceo que tout soit trouve par enquest ne voile luy pend pur ceo que il [the master] fuit en vie q il duist aver occis, pur que il fait maunde al prison, et apres compaign don juge"ment que il duit pendre, &c. 66 66 Quia voluntas in isto casu reputabitur pro facto la on le volunte est cy appartement trou." (i.e. There was a special verdict. The judge did not like to pass sentence because the person assaulted was still alive, but on argument the other judges gave judgment of death.) "Spig. (probably Spigurnel) dit q un femme se tient ove son advouters, et "son advoutr et luy compass le mort son baron et luy assail' come il chivauch "vers le deliverances, &c. [as he was riding to the assizes—the gaol delivery] "et luy naufrer ove fetz, &c. [Coke translates 'weapons '] issint que ils less "luy giss pur mort et fuger et le baron leva huy et crie et vient al deliveraunces "et mre ceo as justices, et les justices maundr pur eux prendre et fuer prises "et arr de ceo et tout ceo fuit troue p vdit et par ag [by the judgment of "the court] il fuit pend' et la femme ars," &c. Fitzherbert, Corone, 383; 15 Edw. 2 (A.D. 1322). ATTEMPTS-LATER LAW. 223 This rule, however, appears to have been considered too CH.XXII. severe and to have fallen into disuse, no general principle at all taking its place. The wide discretion which was then, and is now, allowed to the courts in regard of punishment would obviate many difficulties which the want of such a principle would raise. Many attempts to commit crimes must have been punished as assaults, forgeries, or the like, and no doubt in such cases the intent on the part of the offender to commit some special crime would involve a corresponding severity in punishment. A remarkable instance of the results of this state of the law is afforded by the 1trial of Giles before Jeffreys, then Recorder of London, for a desperate attempt to murder Arnold, a magistrate who had made himself conspicuous by his Protestant zeal. Giles cut Arnold's throat, and stabbed him in many places, giving him in particular one wound "of the depth of seven inches in hist body between his belly and his left pap." For this offence he was fined £500, pilloried thrice, imprisoned till his fine was paid, and required to find sureties for his good behaviour for life. Jeffreys described this as "as great a corporal punishment as the law will allow," an opinion which he must have altered when he afterwards sentenced Oates. In the present day the punishment for such an offence would be penal servitude for life, or for a long term of years. Apart, however, from the punishment of attempts under the name of assaults or the like, the doctrine that an attempt is as such an offence had been established, or at least suggested, by the decisions of the Court of Star Chamber before its abolition. This appears from 2 Hudson's Treatise on the Court of Star Chamber. In his chapter on "causes here examinable not otherwise punishable," he says that it is the "great and high jurisdiction of this court," that it "punisheth errors creeping into the Commonwealth, which otherwise might prove dangerous and infectious diseases, yea, although no positive law or continued custom of common "law giveth warrant to it." After mentioning some other cases, he says, "Attempts to coin money, to commit burglary, or poison, or murder, are an ordinary example of which the 17 State Trials, 1130, 1160. 2 Pp. 107, 108. |