Section I. AT COMMON LAW

HISTORICAL: NOT EMBODIED IN A CODE

Our system of criminal law is not, as is the case in some countries, contained in a single code promulgated by a legislative body. It is, on the contrary, a conglomerate mass of rules based upon the ancient common law of England as modified and extended by the authoritative decisions of the judges in the long passage of history, and vastly enlarged by the addition of statutory enactments made by parliament from time to time, to meet the needs of the moment. For a proper understanding of our criminal system it is therefore necessary to begin with a study of the common law, for as Blackstone wrote: ‘ Statutes also are either declaratory of the common law, or remedial of some defects therein.’

THE PERIOD OF STRICT LIABILITY

There is evidence that throughout Europe in the remote past acts which caused serious harm were supposed to bring about the infliction upon the people of some calamitous punishment by the gods. In such circumstances severe sufferings were inflicted upon the offender in order to placate the outraged deity. But combined with this notion, and eventually outliving it, was the idea that the person whose active conduct appeared as the visible cause of the harm should be held responsible for it; indeed, this responsibility was attached to animals and even to inanimate objects, under the crude conception of causation formed by primitive and superstitious minds, which attributed some kind of spiritual personality to lifeless objects with which man himself had brought about a human death. The English law as to ‘deodands’ was a relic of this prehistoric notion; the deodand was any inanimate instrument by which the killing had been effected. In the Anglo-Saxon era it was called brana, the slayer, and it was handed over to the family of the man killed in order that they might take vengeance upon it. The old couplet ran

but forfeiture was not confined to things that had moved: so once where a small boy fell into a pan full of milk and was drowned, the pan was forfeited.