COMMENTARIES

ON

THE LAWS OF ENGLAND.

BOOK THE FOURTH.

OF PUBLIC WRONGS.

CHAPTER I.

OF THE NATURE OF CRIMES; AND THEIR
PUNISHMENT.

nature. 2. The

of committing

3. The

of guilt of the

several species

of crimes. 5. The means of preventing them;

WE are now arrived at the fourth and last branch of these Public wrongs: Commentaries; which treats of public wrongs, or crimes 1. Their general and misdemesnors. For we may remember that, in the persons capable beginning of the preceding volume (a), wrongs were divided them several degrees into two species; the one private, and the other public. offenders. 4. The Private wrongs, which are frequently termed civil injuries, were the subject of that entire book: we are now therefore, lastly, 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 principals or accessaries; fourthly, the several species of crimes, with the punishment annexed to each by the laws

thod of punish

[ *2 ]

The king the

proper prosecu

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

jesty,

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 (b).

Importance of a knowledgeof the

all classes of the

The knowledge of this branch of jurisprudence, which Criminal Law to teaches the nature, extent, and degrees of every crime, and community. 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 necessary in

framing and enforcing criminal laws. Some

rules of conduct laid down.

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 [*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

(b) See vol. I. P.

268

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

the inferiority

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 England, where our crown-law is with justice supposed to be mendment desi 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

(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 exclude from his court any individual not ostensibly connected with the proceedings; yet a coroner's inquisition frequently 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

Revision and a

rable in our own

Some of its im

stated, and a

gested.

3

[ 4 ]

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 par-
ticulars, 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 *re-
pealing 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 mat-
ter 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 ju-
dicially, and with power to decide upon
law, fact, and punishment, and not as a
mere ministerial officer in taking exami-
nations. 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

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 (f) (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).

pointing out such imperfec

tions.

It is true, that these outrageous penalties, being seldom The propriety of or never inflicted, are hardly known to be law by the public: 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 oneto 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.

crime or misde

properly syna.

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 Those terms crimes 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

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

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

(2) The two Acts inflicting this severe punishment are repealed, as far as regards the benefit of clergy, by 4 Geo. IV. c. 54, § 1 & 2; and the offender 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 7 & 8 Geo. IV. c. 30, § 15,

19, & 20, post 144, 233, and 246.

(3) The 5 Eliz. c. 20, which introduced this crime and its severe punishment, is repealed by the 23 Geo. III. c. 51.-CH.

(4) The 1st Geo. IV. c. 116, repeals the 1st & 2d P. & M. c. 4, which made it a capital felony for gipsies to remain one month in England.