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COMMENTARIES

ON

THE LAWS OF ENGLAND.

BOOK THE FOURTH.

OF PUBLIC WRONGS.

CHAPTER I.

OF THE NATURE OF CRIMES; AND THEIR

PUNISHMENT.

1. Their general nature.

2. The

of

3. The several degrees

of crimes. 5. The

We are now arrived at the fourth and last branch of these public wrongs : Commentaries; which treats of public wrongs, or crimes and misdemesnors. For we may remember that, in the persons capable beginning of the preceding volume (a), wrongs were divided them into two species; the one private, and the other public. of suit of the Private wrongs, which are frequently termed civil injuries, several species were the subject of that entire book: we are now therefore, menting theme; lastly, to proceed to the consideration of public wrongs, or anid6. The me crimes and misdemesnors; with the means of their prevention ing them. and punishment. In the pursuit of which subject I shall consider, in the first place, the general nature of crimes and punishments ; secondly, the persons capable of committing crimes; *thirdly, their several degrees of guilt, as

[ *2 ] principals or accessaries; fourthly, the several species of crimes, with the punishment annexed to each by the laws

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The king the proper prosecu

Importance of a knowledgeof the

all classes of the community.

of England ; fifthly, the means of preventing their perpetration; and sixthly, the method of inflicting those punishments, which the law has annexed to each several crime and misdemesnor.

First, as to the general nature of crimes and their punishtor for all public ment: the discussion and admeasurement of which forms offences, as the center of all ma. 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 king, in whom centers the majesty of the whole community, is supposed by the law to be the person injured by every infraction of the public rights belonging to that community, and is therefore in all cases the proper prosecutor for every public offence (6)

The knowledge of this branch of jurisprudence, which Criminal Law to 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 (c) 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 framing and en. also to be the care and attention of the legislature in pro

perly* forming and enforcing it. It should be founded upon

principles that are permanent, uniform, and universal ; and [ *3] 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

Great care necessary in

forcing criminal laws. Some rules of conduct laid down.

(b) See vol. I. p. 268

(c) Sir Michael Forster, pref. to rep.

the state which it is meant to govern. And yet, either from Some causes of a want of attention to these principles in the first concoction of all criminal of the laws, and adopting in their stead the impetuous dic-stated. tates of avarice, ambition, and revenge; from retaining the discordant political regulations, which successive conquerors or factions have established, in the various revolutions of government ; from giving a lasting efficacy to sanctions that were intended to be temporary, and made (as Lord Bacon expresses it) merely upon the spur of the occasion; or from, lastly, 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. I shall not here enter into any minute inquiries concerning the local constitutions of other nations; the inhumanity and mistaken policy of which have been sufficiently pointed out by ingenious writers of their own (d). But even with us in England, where our crown-law is with justice supposed to be mendment desi. more nearly advanced to perfection; where crimes are more accurately defined, and penalties less uncertain and arbitrary; perfections where all our accusations are public (1), and our trials in the remedy sug

Revision and a.

rable in our own Criminal Code. Some of its im

(d) Baron Montesquieu, Marquis Beccaria, &c.

(1) This part of the encomium of made and proved against a man in his the learned judge must be received absence, can scarcely, in the meanwith some qualification. It was decided ing of the learned judge, be called in the recent case of Garnett v. Fer- “public,” or “in the face of the world.” rand, 9 D. & R. 657 ; 6 B. & C. 611, In a somewhat earlier case of Cox v. that a coroner, in the exercise of his

Coleridge, 2 D. & R. 86; 1 B. & C. discretion as a judge, may legally ex- 37, it had been held, that a person clude from his court any individual not under examination before justices of ostensibly connected with the proceed the peace, on a charge of felony, has no ings; yet a coroner's inquisition fre- right to have a legal adviser attending quently terminates in an “accusation," on his behalf, and that the privilege, as where the jury find a verdict of mur- when allowed, is entirely a matter of der or manslaughter against A. or B. discretion in the justices. In that case, In the case cited, the party excluded too, it seems to have been doubted, was a reporter, so that the intention of whether the rule did not apply even the coroner, in which the court of King's where the decision of the justices is Bench held him justified, was to pre- final, as on convictions under penal vent the inquest from being “public:” statutes, where no appeal is given. yet it was impossible for the coroner That doubt, however, seems to have to know that the inquiry would not been since removed, and it may now, it terminate in an “accusation” against is apprehended, be considered as law, that very person ; and an accusation that a defendant has a right to have

[ *4]

ones.

face of the world; where torture is unknown, and every delinquent is judged by such of his equals, against whom he can form no exception nor even a personal dislike ;---even here we shall occasionally find room to remark some particulars, that seem to want revision and amendment. These have chiefly arisen from too scrupulous an adherence to some rules of the ancient common law, when the reasons have ceased upon which those rules were founded; from not *repealing such of the old penal laws as are either obsolete or absurd ; and from too little care and attention in framing and passing new The enacting of penalties, to which a whole nation shall be subject, ought not to be left as a matter of indifference to the passions or interests of a few, who upon temporary motives may prefer or support such a bill; but be calmly and maturely considered by persons who know what provisions the laws have already made to remedy the mischief complained of, who can from experience foresee the probable consequences of those which are now proposed, and who will judge without passion or prejudice how adequate they are to the evil. It is never usual in the House of Peers even to read a private bill, which may affect the property of an individual, without first referring it to some of the learned judges, and hearing their report thereon (e). And surely equal precaution is necessary, when laws are to be established, which may affect the property, the liberty, and perhaps even the lives of thousands. Had such a reference taken place, it

(e) See Vol. II. p. 315.

the presence and assistance of counsel

using a gun to destroy game, are of a juor attorney, or such legal advice and dicial nature, at which all persons have a assistance as he can procure, in the primâ facie right to be present; and conduct of his defence, on the final therefore, where a magistrate had, hearing of an information ; for on such without any specific reason, caused a hearing the magistrate is sitting jul- party, who claimed a right to be predicially, and with power to decide upon sent, to be removed from a justicelaw, fact, and punishment, and not as a room where such proceedings were mere ministerial officer in taking exami- going on, it was held, that he was nations. For this position the late case of liable to an action of trespass : see 1 Daubeny v. Cooper, 5 Man. & Ry. 314; Chitty's Burn, 829. See also, an ela10 B. & C. 237, seems an authority, for borate note upon the case of Cor v. it was there held, that the proceedings Coleridge, and upon this subject geneagainst a party in a summary manner, rally, in Paley on Convictions (by under the 5 Anne, c. 14, (since repealed, Dowling), 27. by 1 & 2 W. 4, c. 32), for keeping and

tions.

is impossible that in the eighteenth century it could ever have been made a capital crime, to break down (however maliciously) the mound of a fishpond, whereby any fish shall escape; or to cut down a cherry-tree in an orchard () (2). Were even a committee appointed but once in an hundred years to revise the criminal law, it could not have continued to this hour a felony, without benefit of clergy, to be seen for one month in the company of persons who call themselves, or are called, Egyptians (g) (3) (4). It is true, that these outrageous penalties, being seldom The propriety of

pointing out or never inflicted, are hardly known to be law by the such imperfecpublic: but that rather aggravates the mischief, by laying a snare for the unwary. Yet they cannot but occur to the observation of any one, who hath undertaken the task of examining the great outlines of the English law, and tracing them up to their principles : and it is the duty of such a one to hint them *with decency to those, whose abilities and [ *5 ] stations enable them to apply the remedy. Having therefore premised this apology for some of the ensuing remarks, which might otherwise seem to savour of arrogance, I proceed now to consider (in the first place) the general nature of crimes.

I. A crime, or misdemesnor, is an act committed, or Definition of a omitted, in violation of a public law, either forbidding or meanor. commanding it. This general definition comprehends both Thoose terms erimes and misdemesnors : which, properly speaking, are nymous. mere synonymous terms: though, in common usage, the word “ crimes" is made to denote such offences as are of a deeper and more atrocious dye; while smaller faults, and

crime or misde.

() Stat 9 Geo. I. c. 22; 31 Geo. II. c. 42

(g) Stat. 5 Eliz. c. 20.

(2) The two Acts inflicting this 19, & 20, post 144, 233, and 246. severe punishment are repealed, as far (3) The 5 Eliz. C. 20, which inas regards the benefit of clergy, by 4 troduced this crime and its severe Geo. IV. c. 54, § 1 & 2; and the punishment, is repealed by the 23 Geo. offender or offenders, together with III. c. 51.-CH. their accessaries, are liable, at the dis- (4) The 1st Geo. IV. c. 116, recretion of the court, to be transported peals the 1st & 2d P. & M. c. 4, which or imprisoned. And see still more made it a capital felony for gipsies to recent enactments with respect to these remain one month in England. offences, in 7 & 8 Geo. IV. c. 30, $ 15,

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