12. After the decree is signed and enrolled, how only can it be rectified?—-454.

By bill of review, or by appeal to the House of Lords.

43. How is appeal to the House of Lords effected, and what evidence is admitted there upon such appeal?-454, 455.

An appeal to parliament, that is, to the House of Lords, the dernier resort, is effected by petition to the house, and not upon writ of error, as upon judgments at common law. No new evidence is admitted on appeal, upon any consideration.

18

BOOK IV.

OF PUBLIC WRONGS.

CHAPTER I.

OF THE NATURE OF CRIMES AND THEIR PUNISH.

MENT.

1. What are to be considered in treating of public wrongs, or crimes and misdemeanors ?-1, 2.

1st. The general nature of crimes and punishments.

2d. The persons capable of committing crimes.

3d. The several degrees of guilt, as principals or accessaries.

4th. The several species of crimes, with the punishment annexed to each by the laws of England.

5th. The means of preventing their perpetration.

6th. The method of inflicting those punishments which the law has annexed to each several crime and misdemeanor.

2. What do codes of criminal law embrace?—2.

The discussion and admeasurement of crimes, and their punishment, form 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 offense.

3. Is the knowledge of this branch of jurisprudence of general importance ?-2.

Yes; 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 has observed) 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.

4. What considerations should influence in properly forming and enforcing the criminal law ?-3, 4.

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 upon principles. that are permanent, uniform, and universal; 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 to 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 inade (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 offense; 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. 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 arbitrary; 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 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 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 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. 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 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 cut down a cherry-tree in an orchard. 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.

5. What is a crime or misdemeanor?—5.

It is an act committed, or omitted, in violation of the public law, either forbidding or commanding it.

6. How has common usage distinguished the one from the other?

—5.

In common usage, the word "crimes" is made to denote such offenses as are of a deeper and more atrocious dye; while smaller faults, and omissions of less consequence, are comprised under the gentler name of "misdemeanors."

7. In what does the distinction of public wrongs from private, of crimes and misdemeanors from civil injuries, principally consist? -5.

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, or misdemeanors, are a breach and violation of the public rights and duties, due to the whole community, in its social aggregate capacity.

8. Does crime include an injury ?—6.

Yes; every public offense is also a private wrong, and somewhat more; it affects the individual, and it likewise affects the community.

9. Wherein is the distinction of crimes from civil injuries apparent ?-6, 7.

In injuries of an atrocious character, the private wrong is swallowed up in the public: we seldom hear of any satisfaction made to the individual. But in those of an inferior nature, room is left for a private compensation also.

10. What double view has the law in taking cognizance of wrongs or unlawful acts?—7.

To redress the party injured, and to benefit society.