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NEW COMMENTARIES

ON

THE LAWS OF ENGLAND.

BOOK VI.

OF CRIMES.

CHAPTER I.

OF THE NATURE OF CRIMES AND THEIR

PUNISHMENTS.

We are now arrived at the sixth and last branch of the Commentaries; which treats of public wrongs, or crimes. For it will be remembered that wrongs were divided into two species; the one private, and the other public (a). Private wrongs, otherwise termed civil injuries, were the subject of the preceding Book. [We are, therefore, lastly, to proceed to the consideration of public wrongs or crimes: in pursuit of which we shall consider, firstly, the general nature of crimes and punishments; secondly, the persons capable of committing crimes; thirdly, their several degrees of guilt as principals or accessories ; fourthly, the several species of crimes, with the punish

(a) Vide sup. vol. 1. p. 138.

VOL. IV,

B

[ment annexed to each by the laws of England; fifthly, the means of preventing their perpetration ; and, sixthly, the method of inflicting those punishments which the law has annexed to each crime respectively.

First, as to the general nature of crimes and their punishment: the discussion and admeasurement of which forms, in every country, the code of criminal law; or, as it is more usually denominated with us in England, the doctrine of the pleas of the crown,so called because the sovereign,-in whom centres the majesty of the whole community,—is supposed by the law to be the person injured by every wrong done to that community; and is therefore, in all cases, the proper prosecutor for every such offence.

The knowledge of this branch of jurisprudence, which teaches the nature, extent and degrees of every crime, and adjusts to it its adequate and necessary penalty, is of the utmost importance to every individual in the State. For, as a very great master of the crown law (6) has observed upon a similar occasion, no rank or elevation in life, no uprightness of heart, no prudence or circumspection of conduct, should tempt a man to conclude that he may not at some time or other be deeply interested in these researches. The infirmities of the best among us, the vices and ungovernable passions of others, the instability of all human affairs, and the numberless unforeseen events which the compass of a day may bring forth, will teach us (upon a moment's reflection), that to know with precision what the laws of our country have forbidden, and the deplorable consequences to which a wilful disobedience may expose us, is a matter of universal concern.

In proportion to the importance of the criminal law, ought also to be the care and attention of the legislature in properly forming and enforcing it. It should be founded on principles that are permanent, uniform, and universal ;

(6) Sir Michael Foster, pref, to Rep.

[and always conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind: though it sometimes, (provided there be no transgression of these eternal boundaries,) may be modified, narrowed, or enlarged, according to the local or occasional necessities of the State which it is meant to govern. And yet either from a want of attention to these principles in the first concoction of the laws, and adopting in their stead the impetuous dictates of avarice, ambition and revenge; or from retaining the discordant political regulations which successive conquerors or factions have established in the various revolutions of government; or from giving a lasting efficacy to sanctions that were intended to be temporary, and made, (as Lord Bacon expresses it,) merely pon

the

spur of the occasion; or, lastly, from too hastily employing such means as are greatly disproportionate to their end, in order to check the progress of some very prevalent offence ;- from some or from all of these causes it hath happened, that the criminal law is, in every country of Europe, more rude and imperfect than the civil. And even with us in England, where our Crown law is, with justice, supposed to be more nearly advanced to perfection; where crimes are more accurately defined and penalties less uncertain and arbitrary; where all our trials are in the face of the world; where torture is unknown, and every delinquent is judged by those of his equals against whom he can form no exception, nor even a personal dislike (c)]=yet our criminal code was long deformed by an unwise and inhumane severity ; and though

(c) 4 Bl. Com. p. 3. Blackstone down, however maliciously, the adds, that if bills, introductory of “ mound of a fish pond whereby any new penal enactments, were first re- “ fish shall escape; or to cut down ferred to some of the learned judges a cherry-tree in an orchard; as before they were entertained in par- “ provided respectively by stat. 9 liament, it would not have been “ Geo. 1, c. 22; 31 Geo. 2, c. 42. And possible " that in the eighteenth “ were even a committee appointed “ century it could ever have been “ bat once in 100 years to revise the “ made a capital crime to break “ criminal law, it could not have

in modern times many signal reforms have been introduced into this branch of our juridical system, even now, no candid commentator can pronounce upon it a quite unmixed encomium. We shall proceed now to consider, in the first place, the general nature of crimes; and this as regards, first, the crime itself; and, secondly, the punishment.

I. A crime is the violation of a right; when considered in reference to the evil tendency of such violation, as regards the community at large (d).

[The distinction of public wrongs from private-of crimes from civil injuries—seems upon examination principally to consist in this: that private wrongs, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals ; public wrongs, or crimes and misdemeanors, are a violation of the same rights, considered in reference to their effect on the community in its aggregate capacity (e). As if I detain a field from another man, to which

“ continued to this hour a capital scarcely points out the difference “ felony to be seen for one month in between a crime and a civil injury. “the company of persons who called (e) The expression of Blackstone “ themselves, or are called Ægyp- (ubi sup.) is, "A breach and viola“ tians; as provided by 1 Ph. & “tion of the public rights and duties “ M. c. 4, and 5 Eliz. c. 20.” It is “ due to the whole community, conscarcely necessary to remark, that “sidered as a community in its social all these sanguinary laws are now “ and aggregate capacity.” We are repealed. As to the two first-men- thus presented with another definitioned offences, the repeal is by 4 tion of crime; but it is not more Geo. 4, c. 44, and 7 & 8 Geo. 4, satisfactory than the first, for it c. 30, ss. 15, 19; as to the last, by merely raises the question of what 23 Geo. 3, c. 51, and 1 Geo. 4, c. is meant by “public rights due to 116.

" the community.” If the expres(d) The definition of Blackstone sion is intended to exclude prirate (vol. iv. p. 5), is as follows: “A rights due to the individual, the “ crime or misdemeanor is an act definition seems wrong; for a vio. " committed or omitted, in violation lation of such rights as these clearly of a public law either forbidding amounts to a crime; as in the case or commanding it." But this of a murder or battery.

[the law has given him a right,—this is a civil injury and not a crime: for here only the right of an individual is concerned, and it is immaterial to the public which of us is in possession of the land. But treason, murder and robbery, are properly ranked among crimes; since, besides the injury done to individuals, they strike at the very being of society; which cannot possibly subsist, where actions of this sort are suffered to escape with impunity. In all cases, crime includes an injury: every public offence is also a public wrong, and somewhat more; it affects the individual, and it likewise affects the community. Thus treason in imagining the sovereign’s death, involves in it conspiracy against an individual, which is also a civil injury; but as this species of treason in its consequences principally tends to the dissolution of government, and the destruction thereby of the order and peace of society,

- this raises it to a crime of the highest magnitude. Murder is an injury to the life of an individual: but the law of society considers principally the loss which the State sustains by being deprived of a member, and the pernicious example thereby set for others to do the like. Robbery may be considered in the same view: it is an injury to private property; but were that all, a civil satisfaction in damages might atone for it: the public mischief is the thing for the prevention of which our laws have made it a felonious offence. In these gross and atrocious injuries, the private wrong is swallowed up in the public. We seldom hear any mention made of satisfaction to the individual, the satisfaction to the community being so very great (f). But there are crimes of an inferior

(f) There still exists, however, a the case of Stone v. March, 6 B. & remedy for the private wrong; even C. 551, which was an action against in cases of felony, it is only sus- the surviving partners of Fauntleroy pended during the prosecution for the forger, connected with felonious the crime. The authorities for this transactions in which he had been doctrine are collected and reviewed engaged. by the Court of Queen's Bench in

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