Criminal Law is that branch of law which deals with crimes and their punishment, and is in use in one shape or another wherever human society exists. The earliest form of penal law seems to have rested on a principle of private vengeance, and to have taken shape in the lex talionis, the law of retaliation formulated in the familiar passage in Exodus which lays down as a fit punishment an eye for an eye and a tooth for a tooth. The severity of this doctrine was mitigated when the right of personal vengeance was satisfied by a money payment, a custom which can be traced in the early laws of the Hebrews, Greeks, and Romans, and which is particularly characteristic of early Teutonic systems of penal law. According to these a family is made pecuniarily responsible for the offences of its members, or accepts a fine as a compensation for the life of a lost kinsman (see WEREGILD). When a man was killed, a part of this fine was paid to the king or head of the community to compensate the clan's loss of a fighting member; and in the distinction established between injuries done to the individual and injuries done to the community, the foundation of a system of criminal law was laid. The sovereign power in a community or state took up the wrongs of private persons, and exercised a right of public vengeance. Legislation upon this principle had for its object the intimidation of the wrong-doer, and was specially characterised by the great variety and severity of its punishments. It was not until the 18th century that a more enlightened jurisprudence prevailed. Beccaria's work, On Crimes and Punishments, published in 1764, has exercised a strong influence on the criminal legislation of Europe by urging the claims of criminals to humane consideration, and examining the basis in morals upon which criminal law rests. The principle which Beccaria opposed to the older theory of public vengeance was that of a legitimate defence restrained within the limit of the common interest. The true object of criminal law was set down as the amendment of the criminal, and the restoration to him of the rights of a free man. From this point of view many jurists have opposed Capital Punishment (q.v.), and some go so far as to oppose all forms of corporal punishment on the ground that they degrade the criminal. The modern view gains ground that crime is to be looked upon as a disease of the social body, and that the remedy is to be looked for rather in improved education and social well-being than in a repressive system of arbitrary punishments. The criminal law of a particular state is the body of legal rules affecting the commission and prosecution of crimes. See CRIME, and the several articles on MURDER, THEFT, PERJURY, &c., also JUDGE, WARRANT, &c.; and for the criminal courts, see COMMON LAW (COURTS OF), ASSIZE, HIGH COURT OF JUSTICE, JUSTICIARY, JURY, JUSTICE OF THE PEACE.
The procedure in criminal cases differs in England and Scotland. In England the prosecution is at the instance of the private person injured, and the trial resembles an ordinary civil litigation to a greater degree than is usual in other countries. The proceedings begin before justices by an 'information,' upon which the justices issue a summons directed to the party charged, or grant a warrant for apprehending him. When the person charged appears, the witnesses for the prosecution are examined in his presence, and he is at liberty to put questions to them, either personally or by counsel. After the examination the accused may say anything he desires in answer to the charge, but what he says is taken down, and may be given in evidence against him at his trial. After the statement of the accused, he may call witnesses, and the justices are bound to take the statement of these. Thereafter the justices may, according to their opinion of the evidence, either discharge the accused, or commit him to gaol, or admit him to bail. The commitment is for trial, either at quarter sessions or at the assizes. The first step in the trial is the presentment of an indictment to the grand-jury, who are chosen from gentlemen of standing in the district. The grand-jury having been charged by the judge, and having heard the witnesses, find a 'true bill' if they are satisfied that there is a prima facie case. The case then goes to trial in open court before a judge and jury. The prisoner is entitled to be represented by counsel, although there is no provision of law in England, as in Scotland, to find counsel for prisoners who cannot afford the customary fee. The order of proceeding at trial is as follows: When a jury has been sworn, and the defendant has pleaded not guilty, the counsel for the prosecution opens the case, and then examines the witnesses for the prosecution, who are afterwards cross-examined and re-examined according to the rules of evidence. Counsel for the prisoner then states the defence, and examines witnesses, and may sum up the evidence to the jury if there are no witnesses for the defence; counsel for the prosecution sums up the evidence against the prisoner. When evidence is given for the prisoner, the counsel for the prosecution has the right to reply; but in practice it is hardly ever exercised. After the reply, the judge sums up the case, and the jury consider their verdict, which must be unanimous. If the verdict be not guilty, the prisoner is discharged; if guilty, he is sentenced. The prisoner has a right to be present throughout the trial, though the court may probably proceed in his absence if he so misconducts himself as to make it impossible to try him with decency. See Sir J. F. Stephen's Digest of the Law of Criminal Procedure (1883), and his History of that law (1883).
The procedure in Scotland has been altered and simplified by the Criminal Procedure (Scotland) Act, 1887. The first step is a petition for warrant to arrest and commit, which may be granted by any magistrate. A person arrested is entitled at once to have intimation sent to any law-agent he may name that his services are required; and to have a private interview with his legal adviser before the examination, and the legal adviser may be present at the examination. The declaration of the accused is then taken by the magistrate, whose duty it is to warn him that the declaration may be used against him. The next step is the pre-cognition or inquiry into the facts of the crime, which is conducted as a rule by the procurator-fiscal. The accused is then committed for trial on a warrant specifying the offence charged. He is then served with an indictment. Where the trial is by jury, all public prosecution is conducted on indictment in name of the Lord Advocate. The old form of indictment was a lengthy and cumbrous document, and the strictness of the rules as to its form laid it often easily open to technical objections. A simpler and shorter form was introduced by the Criminal Procedure Act. On the day fixed, the trial proceeds in the presence of the prosecutor, who may appear by deputy, and that of the prisoner, which is indispensable. The panel is first called on to state objections to the relevancy of the libel; these being disposed of, to plead. If he pleads not guilty he is remitted to the knowledge of an assize—i.e. his case is laid before a jury of fifteen. Evidence is led, first for the prosecution, and then for the defence, and counsel for the parties address the jury, the accused's counsel having the last word. The presiding judge then sums up the evidence, and directs the jury in law. The jury then return their verdict, which need not be unanimous, if a majority agree. If the verdict be not guilty, or not proven, the accused is dismissed from the bar. If it be guilty, the prosecutor moves the court for sentence, which is pronounced; and can only be reviewed by way of pardon. See Macdonald's Criminal Law of Scotland (1877) and N. Macdonald's Manual of the Criminal Procedure (Scotland) Act (1887).
The criminal law of the United States has closely followed that of England. But in the United States there are public prosecutors—the district-attorneys. In some states there may also be private prosecution.