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.
The jurisdiction to deal with crime is primarily territorial, and can be exercised only as to acts done within the territory or territorial waters, or on the ships of the law-giver. Extra territorium jus dicenti impune non paretur. NoJurisdiction. state will enforce the penal laws of another nor permit the officer of another state to execute its laws outside its own territory. But international law recognizes the competence of a state to make its criminal law binding on its own subjects wherever they are, and perhaps even to punish foreigners who outside its territory do acts which menace its internal or external security, e.g. by dynamite plots or falsification of coin. Apart from extradition arrangements the national law cannot reach such persons, be they citizens or aliens, until they come within the territory of the state whose law has been broken.
The codes of France, Germany and Italy make the penal law national or personal and not territorial. In some British colonies whose legislatures have a derived and limited legislative authority, indirect methods have been taken to deal within the colony with persons who commit offences outside its territory.
Throughout the development of the English criminal law it showed and retains one particular characteristic that crime was treated as local, which means not merely that the common law of England was limited to English soil, but that an offence on English soil could be “inquired of, dealt with, tried, determined and punished” only in the particular territorial division of England in which it was committed, which was and is known as the venue (q.v.). Each township was responsible for crimes within its boundaries, a responsibility made effective by the “view of frankpledge,” now obsolete, and the guilt or innocence of every man had to be determined by his neighbours. This rule excluded from trial by the courts of common law, treasons, &c. committed by Englishmen abroad and piracy; and it was not till Henry VIII.’s reign (1536, 1544) that the common-law mode of trial was extended to these offences. The legislature has altered the common law as to numerous offences, but on no settled plan, and except for a bill introduced about 1888, at the instance of the 3rd marquess of Salisbury, no attempt has been made to make the English criminal law apply generally to subjects when outside the realm; and in view of the complicated nature of the British empire and the absence of a common criminal code it has been found desirable to remain content with extradition in the case of crimes abroad, and with the provisions of the Fugitive Offenders Act 1881 in the case of criminals who flee from one part to another of the empire.
The localization in England of crime, and the procedure for punishing it, differ largely from the view taken in France and most European countries. The French theory is that a Frenchman owes allegiance to the French state, and commits a breach of that allegiance whenever he commits a crime against French law, even although he is not at the time within French territory. In modern days this theory has been extended so as to allow French and German courts to punish their subjects for crimes committed in foreign countries, and by reason of this power certain countries refuse to extradite their subjects who have committed crimes in other states.
The principle of the French law, though not expressly recognized
in England, must be invoked to justify two departures
from the English principle—(1) as regards offences
on the high seas, and (2) as regards certain offencesOffences
on the
high seas.
committed outside the United Kingdom. In early
days offences committed by Englishmen on the high
seas were punished by the lord high admiral, and he encroached
so much on the ordinary courts as to render it necessary to pass
an act in Richard II.’s reign (15 Rich. II. st. 2, c. 3) to restrain
him.
In the time of Henry VIII. (1536, 28 Hen. VIII. c. 15) an act
was passed stating that, as the admiral tried persons according
to the course of civil law, they could not be convicted unless
either they confessed or they or the witnesses were submitted
to torture, and that therefore it was expedient to try the offences
according to the course of the common law. Under that act
a special commission of oyer and terminer was issued to try these
offences at the Old Bailey, and English law was satisfied by permitting
the indictment to state that the offence was committed
on board a ship on the high seas, to wit in the county of Middlesex.
Since 1861 these special commissions have been rendered unnecessary
by the provision (contained in each of the Criminal Law
Consolidation Acts of that year) that all offences committed on
the high seas may be tried as if they had been committed in
England. As regards offences on land, it was found necessary
as early as the reign of Henry VIII. (1544) to provide for the trial
in England of treasons and murders committed on land outside
England. This was largely due to the constant presence inOffences committed on land outside England.
France of the king and many of his nobles and knights,
but the aid of this statute had to be invoked in 1903
in the case of Lynch, tried for treason in South Africa.
The latest legislation on the subject was in 1861
(Offences against the Person Act, § 9), and any murder
or manslaughter committed on land out of the United Kingdom,
whether within the king’s dominions or without, and whether
the person killed were a subject of His Majesty or not, may be
dealt with in all respects as if it were committed in England.
The jurisdiction has been extended to a few other cases such as
slave trade, bigamy, perjury, committed with reference to
proceedings in an English court, and offences connected with
explosives. But these offences must be committed on land and
not on board a foreign ship, because if a man takes service on
board a foreign ship he is treated for the time as being a member
of the foreign state to which that ship belongs. The principleMisde-
meanours committed by public officers in colonies.
has been also extended to misdemeanours (but not to
felonies) committed by public officers out of Great
Britain, whether within or without the British
dominions. Thus a governor or an inferior officer of a
colony, if appointed by the British government, may be
prosecuted for any misdemeanour committed by him by
virtue of his office in the colony; and cases have occurred where
governors have been so prosecuted, such as that of General
Picton at the beginning of the 19th century, and of Governor
Eyre of Jamaica in 1865, and the attempt to prosecute Governor
MacCallum of Natal in 1906. As a corollary to the system of
“capitulations” applied to certain non-Christian states in Asia
and Africa, it has been necessary to take powers for punishing
under English law offences by British subjects in those states,
which would otherwise go unpunished either by the law of the
land where the offence was committed or by the law of the state
to which the offender belonged (Jenkyns, Foreign Jurisdiction
of the Crown).
An essential part of the criminal law is the punishment or sanction by which the state seeks to prevent or avenge offences. See also under Criminology. Here it is enough to say that during the 19th century great changesPunishment. have been made throughout the world in the modes of punishing crime.
In England until early in the 19th century, punishments for crime were ferocious. The severity of the law was tempered by the rule as to benefit of clergy and by the rigid adherence of the judges (in favorem vitae) to the rules of correct pleading and proof, whereby the slightest error on the part of the prosecution led to an acquittal. Bentham pointed out that certainty of punishment was more effective than severity, that severe punishments induced juries to acquit criminals, and that 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 statutes were passed abolishing the death sentence for all felonies where benefit of clergy existed. The severity of capital sentences had already been modified by the pardoning power of the crown,
