CHIMIN A L of the judge or justice dealing with the case. In the procedure for the trial of felonies and misdemeanours there are several differences as regards: (a) the right of challenge, that is to say, the right of either party to challenge jurors, which is equivalent to an exception for one or more of the jurors, who have appeared individually, and who in consequence of the challenge are set aside. In the case of felonies the defendant may challenge peremptorily twenty jurymen; in the case of misdemeanour he has no right to peremptory challenge, but has to show justification for his challenge. (b) The withdrawal of the jury from communicating with the outside world during the pendency of the case. (c) The obligatory presence of the person charged. In the case of misdemeanour the court may permit his absence. Formerly, on conviction of the offence of felony, forfeiture of lands and goods ensued. But forfeiture resulting on a conviction of felony was abolished in 1870, and the distinction of felony and misdemeanour with regard to forfeiture, as already stated, now only exists in the unusual case of outlawry. Whether a crime is a felony, misdemeanour, or a summary offence depends chiefly on the heinousness of the offence. But a few misdemeanours, created by statutes of Victoria’s reign for punishing frauds of modern origin, are punishable more severely than some felonies. However, as a rule all the more serious offences are felonies, and the most trivial offences are summary offences, whilst misdemeanours come between the two categories. Many summary offences are what some writers call mala prohibita, as distinguished from mala in se; that is to say, they do not involve any breach of ordinary morality, except such breach as is involved in any violation of positive law. The chief common law felonies are : homicide, rape, larceny, i.e., in ordinary language, theft, robbery, i.e., theft with violence, burglary, and kindred offences ; counterfeiting the coin has been made a felony instead of being treason ; and forgery of most documents has been made felony instead of being, as it was at common law, a misdemeanour. Among the chief misdemeanours the following may be mentioned :— 1. Assaults on the Sovereign. 2. Unlawful assemblies. 3. Riots and seditious offences. 4. Forcible entries. 5. Perjury. 6. Blasphemy. 7. Extortion. 8. Bribery. 9. Minor bodily injuries. 10. Assaults. 11. Common nuisances. 12. Libel. 13. Conspiracy to defraud, &c. Perjury was, until the year 1563, punished solely by the ecclesiastical courts, but since that year it has been punished, like any other misdemeanour, by a civil court. Examples of summary offences are as follows :— 1. Offences by children (under twelve years). 2. Offences by young persons (twelve to sixteen years). 3. Offences by adults (above sixteen years), in cases of larceny and embezzlement. 4. Common assaults. 5. Certain larcenies not indictate. 6. Small wilful injuries to property. 7. Offences relating to game. The criminal law applies in England to all persons alike, with the sole exception of a peer or peeress charged with felony, who has the right to be tried by fa peer.° House of Lords. An Earl Marshal is appointed. He presides over the House of Lords to try the indictment. When the trial is over, the staff, which is the sign of his office, is broken, and the Earl Marshal ceases to exist as the president of this special court.
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There are in England no courts of a special character, such as exist in some foreign countries, for the determination of disputes between the governing classes themselves or with the governed classes, whether of a civil or criminal character. Special tribunals do indeed exist for trying naval or military offences committed by members of the navy and army, but those members are not exempt from being tried by the ordinary tribunals for civil offences, as though they were civilians. The punishment for crimes by English law was formerly most brutal, but this brutality was tempered partly by the law of Benefit of Clergy, partly by the rigid adherence to singular technicalities, as, for instance, acquitting a criminal because the person whom he was charged with killing had two Christian names, whereas one only was mentioned in the indictment, or because the name of the person killed was wrongly spelt in the indictment. Benefit of clergy began with the claim of the ecclesi- ^ ^ ^ astical authorities that they alone should punish ° a clerk. The term clerk always included a large number of persons in what were called minor orders, and after a time the test of being a clerk was ability to read, and thus everybody who could read obtained exemption from punishment for his crime, as the ecclesiastical authorities practically enacted no punishment. This practice led to Parliament declaring certain offences to be felonies without benefit of clergy, in order to ensure punishment in all cases of offence against life or property. Bentham pointed out at the beginning of the 19th century that certainty of punishment was more effective than severity, that severe punishments induced juries to acquit criminals, and thus the certainty of punishment was diminished. But his arguments and the eloquence of Sir Samuel Romilly produced no effect until after the reform of Parliament in 1832, shortly after which Acts were passed abolishing the death sentence for all felonies where benefit of clergy existed. Benefit of clergy was finally abolished in 1827 (7 & 8 Geo. IV. c. 28). At present no offences are capital except treason, murder, piracy accompanied by violence, setting fire to the royal dockyards, and inciting to mutiny. The severity of the capital sentences had already been modified by the pardoning power of the Crown, which directed the convict to be transported to convict settlements in the Colonies instead of being hanged. For some years this was only done by the consent of the convict, who agreed to be transported if his death sentence was remitted, but in 1824, when a convict refused to give this consent, Parliament authorized the Crown to substitute transportation for a death sentence. About the middle of the 19th century the Colonies objected to receive any more convicts. Transportation was prohibited in 1857, and penal servitude within the United Kingdom was substituted for transportation; whilst for many felonies imprisonment with hard labour for a term not exceeding two years may now be substituted for penal servitude. By the Penal Servitude Act, 1864, the shortest period of penal servitude for an offence committed after the passing of the Act is five years, and where any previous Act had fixed a maximum of less than five years, the period of five years is to be substituted for such shorter term. The distinction between penal servitude and imprisonment with hard labour is rather one of prison management and discipline than one of any principle. The punishment for misdemeanour at common law has always been fine or imprisonment, or both, at the discretion of the court before which the prisoner was convicted. To this simple imprisonment hard labour has been added by statute for various offences, but the term for imprisonment with hard
