Page images

In proportion to the importance of the criminal law ought also to be tire car© and attention of the legislature in properly forming and enforcing it. It should *o be founded upon principles tnat are permanent, uniform, *and universal;

J 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 external 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 tc these principles in the first concoction of the laws, and adopting in their stead the impetuous dictates 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 more nearly advanced to perfection; where crimes are more accurately defined, and penalties less uncertain and ar„41 bitrary; where all our accusations are public, and our *trials in the 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 antient common law, *vhen 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 100 little care and attention in framing and passing new ones. The enacting of penalties, to which a whole nation should 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 'n 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 lawB 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 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 fish-pond, whereby any fish shall escape; or to cut down a cherry-tree in an orchard^/)1 "Were even a committee appointed but once in a 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.^)*

(*) Baron Monteaquleu. marquis Beccaria, Ac. (/) Stat 9 Geo. L c. 22. 31 Geo. II. c, 42,

(•) Sw book ii. page 336. (») Stat. 6 Kliz. c. 20.

1 The two acts inflicting this severe punishment are repealed, as far as regards the benefit of clergy, by 4 Geo. IV. c. 54, |J 1 &2; and the oflender or offenders, together with their accessaries, are liable, at the discretion of the court, to be transported or imprisoned. And see still more recent enactments with respect to these offences, in " &. 8 W IV. c. 30, |§ 15, 19, 20.-ohittt

'The 5 Eliz. c. 20, wh'oh introduced this crme and its severe punishment, is repealed

It is true that these outrageous penalties, being seldom or never inflicted, are hardly known to be law by the public; *but that rather aggravates the r„„. 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 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 misdemeanour is an act committed or omitted, in violation of a public law either forbidding or commanding it. This general definition comprehends both crimes and misdemeanours, which, properly speaking, are 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 omissions of less consequence, are comprised under the gentler names of "misdemeanours" only.*

The distinction of public wrongs from private, of crimes and misdemeanours from civil injuries, seems 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 misdemeanours, are a breach and violation of the public rights and duties due to the whole community, considered as a community, in its social aggregate capacity. As, if I detain a field from another man, to which 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.6

by the 23 Geo. III. c. 51. Also the 1 & 2 Ph. &, it. c. 4, as far as it made it a capital felony for gypsies to remain one month in England, is repealed by 1 Geo. IV. c. 116.—Chittv.

* This hint was, however, taken but tardily, and the duty of reforming our criminal code was left unperformed until very recently. In spite of the striking expostulation of our commentator, and the repeated exposure by other great and good men of the injustice, the inconsistency and inefficiency of this branch of our law, one-fourth of the present century was suffered to expire without any important or uniform amelioration of its enactments. The subject has, however, recently received the attention which it my seriously demanded; and it is only due to a late eminent statesman to say that, although others had previously pointed out the defects of the criminal code, to him the merit is to be given of first bringing the power and advantages of office to remedy them. The work thus commenced has \ een carried on by others.—Stewart.

'In the English law misdi neanour is generally used in contradistinction to felony, atd misdemeanours compreher d all indictable offences which do not amount to felony, as perjury, battery, libels, con/; .iracies, attempts and solicitations to commit felonies, AcChristian.

1 The distinction betw en public crimes and private injuries seems entirely to be created by positive laws, and r< referable only to civil institutions. Every violation of a moral law or natural oblig<i'Jon is an injury for which the offender ought to make retribution to the individuals who immediately suffer from it; and it is also a crime for which he ought to be punished to that extent which would deter both him and others from a repetition of the "L. In positive laws those acts are denominated injuries for which the legislatare has provided only retribution or a compensation in damages; but when, from experie'j'.e, it is discovered that this is not sufficient to restrain within moderate bounds certain classes of injuries, it then becomes necessary for the legislative power to raise them into crimes and to endeavour to repress them by the terror of punishment, or the sword of the public magistrate. The word "crime" has no technical meaning in the law of England. It seems, when it has a reference to positive law, to comprehend those acts which subject the offender to punishment. When the words high crimes and misdemeanours are used in prosecutions by impeachment, the words high crimes have no definite signification, but are used merely to give greater solemnity to the charge. When the word aims is used with a reference to moral law, it implies every deviation from moral

In all cases the crime includes an injury: every public offence is also a pri. vate wrong, and somewhat more; it affects the individual, and it likewise affects the community. *Thus, treason in imagining the king's death involves

J 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 denominates it 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. Bobbery 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 capital 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. And, indeed, as the public crime is not otherwise avenged than by forfeiture of life and property, it is impossible afterwards to make any reparation for the private wrong, which can only be had from the body or goods of the aggressor.' But there are crimes of an inferior nature, in which the public punishment is not so severe but it affords room for a private compensation also; and herein the distinction of crimes from civil injuries is very apparent. For instance: in the case of battery, or beating another, the aggressor may be indicted for this at the suit of the king, for disturbing the public peace, and be punished criminally by fine and imprisonment; and the party beaten may also have his private remedy by action of trespass for the injury which he in particular sustains, and recover a civil satisfaction in damages.' So, also, in case of a public nuisance, as digging a ditch across a

rectitude. Hence we say it is a crime to refuse the payment of a just debt; it is a crime wilfully to do an injury to another's person or property without making him a satisfac tion. To destroy another's property wilfully, without making the owner a compensation, is in all cases a worse crime in reason than theft; because the individual deprived of his property suffers precisely the same injury, and the public loses the benefit of that property, which contributes to the support of no one; and he who does the injury has not the temptation of him who steals to supply his wants. In the case of those actions which are only civil injuries, and to which no legal punishment is annexed, the law has supposed that retribution will be sufficient to deter the commission of them. But the wilful and malicious destruction of another's property by fire in many cases is punished with death; so also is the malicious killing and maiming of another's cattle: yet these detestable and diabolical acts were not crimes by the common law of England; but ex perience discovered the necessity of rendering them subject to public and severe punishment. Yet to set fire to a field of ripe standing corn is still only a private injury, though this is an act which strikes at the very being of society, but the legislature have not yet found it necessary to repress it by the terror of penal laws.—Christian.

The 9 Geo. I. c. 22, relating to killing and maiming cattle, is repealed by 4 Geo. IV. o 54, by which the punishment of that offence is altered to transportation or imprison ment, and the necessity of proving malice against the owner is removed.—Chittt.

'The civil right to sue for the injury the party has received in a case of felony is not in general merged or destroyed, but only suspended until he has performed his duty to society by an endeavour to bring the offender to justice: and after the party on whom suspicion was fixed has been convicted or acquitted, without collusion, the prosecutor may support nn action for the same cause as that on which the criminal prosecution was founded. Styles, 346. 12 East, 409. Rep. T. Hardw. 350. 17 Ves. 329. No action can be brought, or bill in equity filed, in relation to a felony, until the offender has been duly tried for the offence, (id. ibid.,) or that every exertion has been made to bring him to justice.—CniTTY.

T The court of Common Pleas wili not compel a party who has proceeded both by indictment and action for the same assault to make his election upon which he will rely, (Jones vs. Clay, 1 Bos. & Pul. 191;) and, though it was formerly held that, in general, if the party moved for a criminal information he must abandon any action, that doctrine seems to have been broken in upon by a very recent case in the court of King's Bench, (Caddy vs. Barlow, 1 Man. & Ryl. 275,) where it was held, in an action by A. for the malicious prosecution by C. of an indictment against A. and B., that a rule for

highway: this is punishable by indictment as a common oftenje to the whole kingdom and all his majesty's subjects; but if any individual sustains any special *damage thereby, as laming his horse, breaking his carriage, or the like, the offender may be compelled to make ample satisfaction, as well for the L private injury as for the public wrong.

Upon the whole, we may observe that, in taking cognizance of all wrongs or unlawful acts, the law has a double view, viz.: not only to redress the party injured by either restoring to him his right, if possible, or by giving him an equivalent, the manner of doing which was the object of our inquiries in the

p receding book of these commentaries, but also to secure to the public the enefit of society, by preventing or punishing every breach and violation of those laws which the sovereign power has thought proper to establish for the government and tranquillity of the whole. What those breaches are, and how prevented or punished, are to be considered in the present book.

II. The nature of crimes and misdemeanours in general being thus ascertained and distinguished, I proceed, in the next place, to consider the general nature of punishments, which are evils or inconveniences consequent upon crimes and misdemeanours; being devised, denounced, and inflicted, by human laws, in consequence of disobedience or misbehaviour in those to regulate whose conduct such laws were respectively made. And herein we will briefly consider the power, the end, and the measure, of human punishment.

1. As to the power of human punishment, or the right of the temporal legislator to inflict discretionary penalties for crimes and misdemeanours.(A) It is clear that the right of punishing crimes against the law of nature, as murder, and the like, is, in a state of mere nature, vested in every individual. For it must be vested in somebody; otherwise the laws of nature would be vain and fruitless, if none were empowered to put them in execution: and, if that power is vested in any one, it must also be vested in all mankind, *since all are r^s by nature equal. Whereof the first murderer, Cain, was so sensible, that 'we find him(i) expressing his apprehensions that whoever should find him would slay him. In a state of society this right is transferred from individuals to the sovereign power; whereby men are prevented from being judges in their own causes, which is one of the evils that civil government was intended to remedy. Whatever power, therefore, individuals had of punishing offences against the law of nature, that is now vested in the magistrate alone, who bears the sword of justice by the consent of the whole community. And to this precedent natural power of individuals must be referred that right, which some have argued to belong to every state, (though, in fact, never exercised by any,) of punishing not only their own subjects, but also foreign ambassadors, even with death itself, in case they have offended, not indeed against the municipal laws of the country, but against the divine laws of nature, and become liable thereby to forfeit their lives for their guilt)

As to offences merely against the laws of society, which are only mala prohibita, and not mala in se, the temporal magistrate is also empowered to inflict coercive penalties for such transgressions, and this by the consent of individuals who, in forming societies, did either tacitly or expressly invest the sovereign power with the right of making laws, and of enforcing obedience to them when made by exercising, upon their non-observance, severities adequate to the eviL The lawfulness, therefore, of punishing such criminals, is founded upon this principle, that the law by which they suffer was made by their own consent: it is a part of the original contract into which they entered when first they engaged in society; it was calculated for, and has long contributed to, their own security.

This right, therefore, being thus conferred by universal consent, gives to the state exactly the same power, and no more, over all its members, as each indi

(») S»e Grotius, <U j. b. <t p.1.2, c. 20. Puffeodorf, L. of (<) Gen. It. 14.

Nat. 4 N. b. 8, c. 3. (») See book i. p. 264.

criminal information obtained by A., and made absolute, was no bar to the action. See also the note to that case, id. 278.—Cmirr.

Vr>L. II.—22 337

^1 vidual member had naturally over himself or others which has *occ»v -I sioned some to doubt how far a human legislature ought to inflict capital punishments for positive offences,—offences against the municipal law only, and not against the law of nature,—since no individual has, naturally, a power of inflicting death upon himself or others for actions in themselves indifferent With regard to offences mala in se, capital punishments are in some instances inflicted by the immediate command of God himself to all mankind; as in the case of murder, by the precept delivered to Noah, their common ancestor and representative, "Whoso sheddeth man's blood, by man shall his blood be shed."(f) In other instances they are inflicted after the example of the Creator in his posi tive code of laws for the regulation of the Jewish republic; as in the case of the crime against nature. But they are sometimes inflicted without such express warrant or example, at the will and discretion of the human legislature; as for forgery, for theft, and sometimes for offences of a lighter kind. Of these we are principally to speak, as these crimes are none of them offences against natural, but only against social rights, not even theft itself, unless it be accompanied with violence to one's house or person; all others being an infringement of that right of property which, as we have formerly seen,(wi) owes its origin not to the law of nature, but merely to civil society.'

The practice of inflicting capital punishments, for offences of human institution, is thus justified by that great and good man, Sir Matthew Hale :(n) "When offences grow enormous, frequent, and dangerous to a kingdom or state, destructive or highly pernicious to civil societies, and to the great insecurity and danger of the kingdom or its inhabitants, severe punishment, and even death itself, is necessary to be annexed to laws in many cases by the prudence of lawgivers." It is therefore the enormity or dangerous tendency of the crime that alone can warrant any earthly legislature in putting him to death t-in-i that commits it. *It is not its frequency only, or the difficulty of other- J wise preventing it, that will excuse our attempting to prevent it by a wanton effusion of human blood. For though the end of punishment is to deter men from offending, it never can follow from thence that it is lawful to deter them at any rate and by any means; since there may be unlawful methods of enforcing obedience even to the justest laws. Every humane legislator will be therefore extremely cautious of establishing laws that inflict the penalty of death, especially for slight offences or such as are merely positive. He will expect a better reason for his so doing than that loose one which generally is given,—that it is found by former experience that no lighter penalty will be effectual. For is it found upon further experience that capital punishments are more effectual? Was the vast territory of all the Bussias worse regulated under the late empress Elizabeth than under her more sanguinary predecessors? Is it now, under Catherine Ill., less civilized, less social, less secure? And yet we are assured, that neither of these illustrious princesses have, throughout their whole administration, inflicted the penalty of death; and the latter has, upon full persuasion of its being useless, nay, even pernicious, given orders for abolishing it entirely throughout her extensive dominions.(o) But, indeed, were capital punishments proved by experience to be a sure and effectual remedy, that would not prove the necessity (upon which the justice and propriety depend) of inflicting them upon all occasions when other expedients fail. I fear this reasoning would extend a great deal too far. For instance, the

(0 Gen. ix. 6. (e) grand instructions for framing B new code of lows fcr

(•») Book iL o. 1. the Russian empire, g 210.

(«) 1 Hal. P. C. 13.

• It is strange that the learned judge's conclusion—viz., that theft itself is not an offene* against natural rights—did not lead him to suspect the fallacy of the position that the right

property owes its origin not to the law of nature, but merely to civil society, which he has also advanced in a former book, (2 book, p. 11,) and which I have there presumed to controvert. If theft be not a violation of the law of nature and reason, it would follow that there is no moral turpitude in dishonesty. "Non igitur magis est contra naiiram 'norbus out tgestas out quid hujusmodi quam detradio aut appetitio alieni."—Cic. Thou shalt not steal is certainly one of the first precepts both of nature and religion.—Christian.

« PreviousContinue »