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COMMENTARIES

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

committing

offenders. 4. The

W e are now arrived at the fourth and last branch of these public wro Commentaries; which treats of public wrongs, or crimes nati and misdemesnors. For we may remember that, in the persons capable beginning of the preceding volume (a), wrongs were divided themra decrees into two species; the one private, and the other public. Of guilt of the Private wrongs, which are frequently termed civil injuries, several species were the subject of that entire book: we are now therefore, means of prelastly, to proceed to the consideration of public wrongs, or and, 6. 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 1 principals or accessaries; fourthly, the several species of crimes, with the punishment annexed to each by the laws

thod of punish

(a) Book III. ch. 1.

VOL. IV.

proper prosecu

offences, as the

jesty.

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. The king the First, as to the general nature of crimes and their punishtor for all public ment: the discussion and admeasurement of which forms 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). Importance of a 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. Great care neGerente care ne

In proportion to the importance of the criminal law, ought

lebo to be the framing and en. also to be the care and attention of the legislature in prolaws. Some perly* forming and enforcing it. It should be founded upon laid down. 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

cessary in

forcing criminal

rules of conduct

(b) See vol. I. p. 268

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

the inferiority
of all criminal
to civil codes

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 Revi England, where our crown-law is with justice supposed to be mendmentdesi. more nearly advanced to perfection; where crimes are more Criminal Code. 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

Some of its im

stated, and a

gested.

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

(1) This part of the encomium of the learned judge must be received with some qualification. It was decided in the recent case of Garnett v. Ferrand, 9 D. & R. 657; 6 B. & C. 611, that a coroner, in the exercise of his discretion as a judge, may legally ex. clude from his court any individual not ostensibly connected with the proceed ings; yet a coroner's inquisition fre quently terminates in an “accusation," as where the jury find a verdict of murder or manslaughter against A. or B. In the case cited, the party excluded was a reporter, so that the intention of the coroner, in which the court of King's Bench held him justified, was to prevent the inquest from being “public:" yet it was impossible for the coroner to know that the inquiry would not terminate in an “accusation" against that very person; and an accusation

made and proved against a man in his
absence, can scarcely, in the mean-
ing of the learned judge, be called
“public," or " in the face of the world.”
In a somewhat earlier case of Cox v.
Coleridge, 2 D. & R. 86; 1 B. & C.
37, it had been held, that a person
under examination before justices of
the peace, on a charge of felony, has no
right to have a legal adviser attending
on his behalf, and that the privilege,
when allowed, is entirely a matter of
discretion in the justices. In that case,
too, it seems to have been doubted,
whether the rule did not apply even
where the decision of the justices is
final, as on convictions under penal
statutes, where no appeal is given.
That doubt, however, seems to have
been since removed, and it may now, it
is apprehended, be considered as law,
that a defendant has a right to have

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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 ones. 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. 345.

the presence and assistance of counsel or attorney, or such legal advice and assistance as he can procure, in the conduct of his defence, on the final hearing of an information ; for on such hearing the magistrate is sitting judicially, and with power to decide upon law, fact, and punishment, and not as a mere ministerial officer in taking examinations. For this position the late case of Daubeny v. Cooper, 5 Man. & Ry. 314; 10 B. & C. 237, seems an authority, for it was there held, that the proceedings against a party in a summary manner, under the 5 Anne, c. 14, (since repealed, by 1 & 2 W. 4, c. 32), for keeping and

using a gun to destroy game, are of a ju. dicial nature, at which all persons have a primâ facie right to be present; and therefore, where a magistrate had, without any specific reason, caused a party, who claimed a right to be present, to be removed from a justiceroom where such proceedings were going on, it was held, that he was liable to an action of trespass : see 1 Chitty's Burn, 829. See also, an elaborate note upon the case of Cor v. Coleridge, and upon this subject generally, in Paley on Convictions (by Dowling), 27.

pointing out

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 (9) (3) (4).

It is true, that these outrageous penalties, being seldom The propriety of or never inflicted, are hardly known to be law by the pach public: but that rather aggravates the mischief, by laying tion 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 *51 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, commanding it. This general definition comprehends both erimes and misdemesnors : which, properly speaking, are ny 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. meanor. Those terms properly syng nymous.

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