CHAP. XVI. this is forbidden as brutalizing to the public generally, or as offensive to the humane sentiments of individuals, -or whether it does not imply the recognition of quasi-rights in animals, analogous to the Roman prohibition of cruelty to slaves1.

against individuals.

12. Acts injurious to public morality, such as bigamy, and, under some systems2, adultery.

13. Acts injurious to the public health, such as neglect of vaccination, and various forms of nuisance.

Many wrongful acts, affecting primarily individuals, and therefore giving rise to remedial rights in private law, are also so harmful to society as to be punished by it as crimes 3. They may perhaps be classified under the following heads :—

1. Violence to the person, in its various kinds and degrees of homicide, wounding, rape, assault, or imprisonment.

2. Defamation of character, sometimes justifiable when shown to be true and for the public benefit 5.

3. Acts offensive to religious feeling 6.

4. Offences against family rights, such as abduction of children.

5. Offences against possession and ownership, such as theft and arson, or other wilful destruction of property.

6. Certain breaches of contract, of a kind likely to cause

1 Cf. supra, p. 290.

2 Code Pénal, art. 337; Strafgesetzbuch, art. 171; Indian Penal Code, art. 497.

3 Supra, pp. 269, 272.

On account of its supposed tendency to arouse angry passions, R. v. Holbrook, 4 Q. B. D. 46.

5 It would seem that no proceedings can be taken for libel on a deceased person. See the charge of Stephen J. at the Cardiff Assizes, in R. v. Ensor, 10 Feb., 1887, relying on R. v. Topham, 4 East 126, as against a dictum in 5 Rep. 125. So also the French law; cf. Dalloz, s. v. Presse-outrage,'

art. 1128.

"

6 On the question whether this, or mere repugnancy to the Christian religion, be the test of a blasphemous libel, see the summing up of Lord Coleridge, C. J. in Foote's case, and Sir J. F. Stephen's History of the Criminal Law, ii. P. 475.

social inconvenience, or for which a civil remedy would be CHAP. XVI. valueless 1.

7. Fraudulent misrepresentations and swindling.

It may be remarked that offences against the property of the State are often assimilated to offences against that of individuals; and, in many instances, particular kinds of State property are, for the purposes of the criminal law, vested by statute in certain State functionaries 2.

IV. Adjective criminal law, 'Penal procedure,' ' Instruction Criminal procedure. criminelle,' 'Strafprozess,' is the body of rules whereby the machinery of the Courts is set in motion for the punishment of offenders.

It consists usually of two species; a simpler, 'peines de police,' 'summary convictions,' applicable, unless with the consent of the accused, only to trifling transgressions; and a more solemn, for the trial of serious crimes.

Each of these consists of several stages, having a strong resemblance to the stages of procedure in private law 3. In the more solemn procedure we may distinguish :

i. The choice of the proper jurisdiction.

ii. The choice of the proper Court.

Jurisdiction.

iii. The procedure proper, consisting of—

1. The summons, by which the accused is called upon, or the warrant, under which he is compelled, to appear to answer the charge.

1 E. g. the provisions in Irish Statutes against ploughing grass lands. Cf. in Holtzendorff's Encyclopädie, the art. 'Vertragsverletzung.'

2 Thus by 7 W. IV and I Vict. c. 36. s. 40 articles sent by post are, for the purposes of the Act, made the property of the Postmaster-General. It would have been sufficient, and in accordance with fact, to declare that such articles are in his possession. This rule is peculiar to the law of England. For a comparative view of the laws of other countries upon the subject, see an art. by M. de Kirchenheim in the Revue de Droit International, xiv. p. 616. Supra, p. 295. The resemblance is stronger in England than on the continent, which is still under the influence of the 'inquisitorial' method introduced into Germany by the Constitutio Criminalis Carolina.

3

Court.

Procedure.

CHAP. XVI.

Execution.

Public

2. The preliminary investigation, terminating in the discharge of the accused, or in his being committed for trial.

3. The measures ensuring that the accused shall be forthcoming for trial, viz. either imprisonment or security given by himself or his friends.

4. The pleadings, by which on the one hand the prosecution informs the Court and the accused of the nature of the charge against him, and, on the other hand, the accused states the nature of his defence.

5. The trial, conducted on a prescribed plan and in accordance with rules of evidence which differ in certain respects from those which prevail in civil suits 1.

6. The verdict and judgment.

7. The procedure on appeal, so far as an appeal is permissible.

iv. Execution, which is carried out by the functionary to whom the force of the State is entrusted for the purpose.

The bringing of criminals to justice may be confided, as prosecutor. it generally is on the continent, to a 'ministère public,' Staatsanwaltschaft,' or left, as it generally has been in England, and was at Rome, to the industry of the injured individual 2.

Law of the
State as a

juristic

person.

V. Besides its rights and duties as the guardian of order, in which respect little analogy can be remarked to anything in private law, the State as a great juristic person enjoys many quasi-rights against individuals, as well strangers as subjects, and is liable to many quasi-duties in their favour. These

1

Supra, p. 296. On the tendency towards an assimilation of the rules of evidence in civil and criminal cases, see the remarks of M. A. Prins, Étude sur la Procédure pénale à Londres, 1879, p. 4.

2 A Roman form of indictment is preserved in the following fragment of Paulus: Consul et dies, apud illum praetorem vel proconsulem, Lucius Titius professus est se Maeviam lege Iulia de adulteriis ream deferre, quod dicat eam cum Gaio Seio, in civitate illa, domo illius, mense illo, consulibus illis, adulterium commisisse.' Dig. xlviii. 2. 3. The office of Director of Public Prosecutions' has been established in England by 42 and 43 Vict. c. 22.

rights and duties closely resemble those which private law CHAP. XVI. recognises as subsisting between one individual and another1. The State, irrespectively of the so-called eminent domain ' which it enjoys over all the lands forming its territory, is usually a great landed proprietor; and in respect of its land is entitled to servitudes over the estates of individuals, and subject to servitudes for the benefit of such estates. It owns buildings of all sorts, from the palace to the police-station, and a large amount of personal property, from pictures by Titian and Tintoretto to cloth for making the prison dress of convicts. It carries on gigantic manufacturing undertakings, lends and borrows money, issues promissory notes, and generally enters into all kinds of contracts. It necessarily acts by means of agents, who may exceed their powers or act fraudulently. Its servants may wilfully or negligently cause damage to individuals. It may become a mortgagee, and in many cases allows itself a tacit hypothec by way of security for what is owed to it. It is capable of taking under a will, and succeeds ab intestato to all those who die without leaving heirs. Its rights and liabilities under many of these heads are different from those of individuals, or even of private artificial persons, especially with reference to liability for injuries done by its servants, and as to the barring of its rights by prescription, though here the modern tendency is to modify the strictness of the old rule that 'nullum tempus occurrit regi2.'

Procedure.

VI. The substantive law affecting the State as a quasi- Law of private juristic personality is supplemented by a body of adjective rules, prescribing the mode in which the State, as such a personality, may sue or be sued. The procedure thus provided is not, it may be remarked, as in private law,

1 See the remarks of Grotius upon the transactions of those 'qui summain habent potestatem... in his quae privatim agunt.' De I. B. et P. ii. 2. 5. 3.

2 Cf. the nullum tempus' Act, 9 G. III. c. 16, and 24 and 25 Vict. c. 62, barring the crown as to lands and rents after sixty years.

CHAP. XVI. similar for both parties, but varies according as the party, plaintiff or defendant, is the State or a private individual. In other words, the procedure, as compared with the ordinary procedure between individuals, is always abnormal; and its abnormity takes different forms when the sovereign takes proceedings against one of his subjects, or a subject takes proceedings against his sovereign. The reason, of course, being that the litigation is between the sovereign, who is the source of all right, and the subject, whose rights are wholly dependent on the will of the sovereign.

Against

the State.

The character of this procedure varies considerably in different countries.

In England the old common law methods of getting redress from the Crown were by 'pétition de droit' and 'monstrans le droit,' in the Court of Chancery or the Court of Exchequer, and in some cases by proceedings in Chancery against the Attorney-General. It has recently been provided by statute that a petition of right may be entitled in any one of the superior Courts in which the subject-matter of the petition would have been cognisable, if the same had been a matter in dispute between subject and subject, and that it shall be left with the Secretary of State for the Home Department, for her Majesty's consideration, who, if she shall think fit, may grant her fiat that right be done, whereupon an answer, plea, or demurrer shall be made on behalf of the Crown, and the subsequent proceedings be assimilated as far as practicable to the course of an ordinary action. It is also provided that costs shall be payable both to and by the Crown, subject to the same rules, so far as practicable, as obtain in proceedings between subject and subject 2.

1 23 and 24 Vict. c. 24. See Tobin v. The Queen, 16 C. B., N.S. 310. 2 On the law of the United States upon this subject, cf. supra, p. III, note 2. It is noticeable that in Egypt actions may be brought in the International Courts directly against the Government. Règlement pour les procès-mixtes, tit. i. art. 10.