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Common Law Misdemeanors
Published online by Cambridge University Press: 16 January 2009
Extract
The recognition of the misdemeanor of Public Mischief has raised the whole issue of whether it is desirable that the judiciary should be in a position to extend the criminal law. The abortive Draft Criminal Code, section 5, provided that all offences should be prosecuted either under the Code or under some other statute, and not at common law. Fitzjames Stephen strongly supported this proposal. The opposing view is that no legislation can foresee all the mischievous acts that may occur, and that it is therefore undesirable to take away from the judges their power of extending common law offences. Any full discussion of this problem requires some consideration of the part played by the judges in building up our criminal law. The purpose of this paper is to examine the main lines of judicial activity in this field.
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- Research Article
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- Copyright © Cambridge Law Journal and Contributors 1937
References
1 49 L. Q. R. (1933), editorial comment at p. 153, and article by Dr. Stallybrass at p. 183.
2 Stephen, History of the Criminal Law, iii, 358 et seq.
3 Kenny, Outlines of Criminal Law, contains many references to the history of offences. It is significant that Stephen, History of the Criminal Law, 1883, has never been republished.
4 Holdsworth, History of English Law, viii, 302 et seq.
5 Bl. Cotnm. iv, 229 et seq.
6 Stephen, op. cit. iii, 144 et seq.
7 Holdsworth, op. cit. v, 197 et seq.
8 Bl. Comm. iv, Chapters 11 and 15.
9 Bl. Comm. iv, Chapter 10.
10 Bl. Comm. iv, 150.
11 Bl. Comm. iv, 136.
12 Holdsworth, op. cit. viii, 381, where the relevant authority is cited.
13 Hawkins, Pleas of the Crown (1716) i, Chapter 72. Hale, Pleas of the Crown, does not discuss conspiracy.
14 Hale, P.C. i, 259. In Pine's Case (1628) 3 Howell's State Trials, 359 at 368, the judges said that uttering words could not be treason ‘unless it were by some particular statute’.
15 Holdsworth, op. cit. viii, 307 et seq.
16 Stephen, op. cit. ii, 274–280. Such offences were made statutory treason in 1795 by 36 Geo. 3, c. 7.
17 Stephen, op. cit. ii, chap. xxiv.
18 Stephen, op, cit. iii, pp. 209 et seq.
19 Professor Sayre, 41 Harvard Law Review (1928) 829, takes this view.
20 1 Siderfin 168, 1 Keb. 620. The defendant's name is spelt variously; the correct spelling, used in some reports and in the Dictionary of National Biography, is ‘Sedley’.
21 ‘Pur ceo *** il fuit gent’ home de trope aun*** family' he was merely fined 2,000 marks, imprisoned one week, and had to give security for good conduct for three years.
22 Fort. 98.
23 2 Str. 788.
24 R. v. Crunden, 2 Camp. 89.
25 AS in R. v. Wellard (1894) 14 Q. B. D. 63, at 67: ‘It seems to be established that, speaking generally, whatever openly outrages decency and is injurious to public morale is a misdemeanor at common law’, citing Bl. Comm. iv, 65; Hawkins P. C. i, c. 5, s. 4; East P. C. c. 1, s. 1.
26 R. v. Lynn (1788) 2 T. R. 733. The indecency is the exhumation; hence religious motives are no defence, although they may mitigate the penalty: R. v. Sharpe (1857) Deare. & Bell 160.
27 R. v. Price (1884) 12 Q. B. D. 247, at 255. The burning of a corpse may in some cases constitute a nuisance and so be indictable, or it may be indictable as an act done to prevent the holding of an inquest: R. v. Stephenson (1884) 13 Q. B. D. 331.
28 Stephen, op. cit. ii, 223–4; Holdsworth, op. cit. v, 201.
29 41 Harvard Law Review (1928) p. 821.
30 Cald. 397.
31 R. v. Harris, 6 Car. & P. 129.
32 R. v. Roderick, 7 Car. & P. 795.
33 Turner, 5 Cambridge Law Journal (1934) p. 230.
34 RUSS. & Ry. 184. R. v. Stewart (1814) Russ. & Ry. 288 ia a similar case.
35 ‘So long as an act rests in mere intention, it is not punishable by our laws’: R. v. Scofield (1784) Cald. 397, per Lord Mansfield at 402.
36 Russ. & Ry. 308.
37 Kenny, Outlines of Criminal Law, 15th ed. p. 93. A late instance of failure to distinguish between preparations for an offence and an attempt to commit that offence can be found in the language of the judges in R. v. Chapman (1849) 2 Car. & K. 846.
38 Russell, Crimes, 8th ed., i, p. 362. Since case law is always retrospective it is fair to say that this misdemeanor has survived several demonstrations that its parents never existed.
39 R. v. Sutton (1736) Cas. temp. Hard. 370; 2 Str. 1074.
40 R. v. Heath, supra, virtually overrules R. v. Sutton. The Coinage Act, 1861, s. 24, now governs this offence.
41 R. v. Roberts (1855) 7 Cox 39; Dears. 539; 25 L. J. M. C. 17.
42 Dugdale v. R. (1853) Dears. 04; Russell, Crimes, ii, p. 1732.
43 Russell, Crimes, 8th ed., i, p. 149, includes some of these without any indication of their origin.
44 2 East 5.
45 [1933] 1 K. B. 529.
46 49 L. Q. R. (1933) p. 183.
46a The Scottish Courts appear to have reached by another route the result of R. v. Manley; see Kerr v. Hill (1936) Scots Law Times 320.
47 The Times newspaper, September 19 and 22, 1936.
48 82 Law Journal (N.S.) p. 310.
49 Compare Kenny's observations on conspiracy, Outlines of Criminal Law, 15th ed. p. 339.
50 Halsbury, Laws of England, 2nd ed. vol. ix, pp. 227 et seq.
51 Halsbury, op. cit. vol. ix, p. 426.
52 R. v. Jones, 2 Ld. Raym. 1013; 1 Salk. 379; 6 Mod. 105.
53 R. v. Wheatley (1761) 1 Black. W. 273; 2 Burr. 1125; and cases there cited.
54 30 Geo. 2, c. 24, s. 1, later 7 & 8 Geo. 4, c. 29, s. 53; Larceny Act, 1861, ss. 88, 89, 90, now Larceny Act, 1916, s. 32.
55 Stephen, op. cit. iii, 152 et seq.
56 [1933] 1 K. B. 529.
57 Millar v. Taylor (1769) 4 Burr. 2303, at 2312.
58 49 L. Q. E. (1933) p. 482.
59 Kari Singh (1912) 40 Calcutta 433.
60 [1933] 1 K. B. 529.
61 Australian Law Journal, vol. 7, p. 435, vol. 8, p. 430, vol. 9, p. 131.
62 United States of America v. Flores (1932) 77 Law. Ed. 1091, per Stone J.
63 American ‘Corpus Juris’, vol. 16, sect. 23.
64 American ‘Corpus Juris’, Annotations 1933–1936, Criminal Law, sects. 23 and 25. The writer has not had access to enough American reports to be able to give further information. Louisiana is not a common law state.
65 E.g. Road Traffic Act, 1930, s. 28, to meet the practice of unauthorised use of motor cars.