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which is the last resort of the subject, who thinks himself aggrieved by an interlocutory order, or final determination in the court. It is effected by petition to the house of lords, and not by writ of error, as upon judgments at common law. It is obvious, that when the courts of equity became principal tribunals for deciding causes of property, a revision of their decrees, by way of appeal, became equally necessary, as a writ of error from the judgment of a court of law. But no new evidence is admitted in the house of lords upon any account, this being a distinct jurisdiction. It is a practice unknown to our law, though constantly followed in the spiritual courts, when a superior court is reviewing the sentence of an inferior, to examine the justice of the former decree by evidence that was never produced before.
BOOK THE FOURTH.
Divisions of the Subject. We now proceed to consider public wrongs, or crimes and misdemeanors, with the means of their prevention and punishment:
1. The general nature of crimes and punishments.
4. The several species of crimes, with the punishment annexed to each.
.5. The means of preventing their perpetration.
6. The method of inflicting those punishments, which the law has annexed to each crime.
CHAPTER I.—THE NATURE OF CRIMES, AND THEIR
The King, as Prosecutor. The discussion and admeasurement of this topic form the code of criminal law, or what is termed in England, the doctrine of the pleas of the crown, so called, because the king is supposed by the law to be the person injured by every infraction of the public rights, and is therefore, in every case, the proper prosecutor for every public offence.
Knowledge of Criminal Law. The knowledge of this branch of jurisprudence, which teaches the nature, extent and degree of every crime, and adjusts to it its adequate penalty, is of the utmost importance to every one. No rank in life, no uprightness of heart, no prudence of conduct will preclude a man at some period from being interested in these researches. The infirmities of some, the vices and passions of others, the instability of human affairs, and numberless unforseen events will teach us, that it is a matter of universal concern to know what the laws forbid, and the consequences of a violation of such laws.
Criminal Legislation Imperfect. The importance of the criminal law necessitates legislative care in properly forming and enforcing it. It should be founded on principles permanent, uniform and universal, conformable to the dictates of truth and justice, the feelings of humanity and the rights of mankind, though it sometimes may be modified, narrowed or enlarged, according to the local necessities of the state. Yet from a lack of attention to these principles in the first formation of these laws, and adopting in their stead, the impetuous dictates of avarice, ambition and revenge ; from retaining discordant political regulations, established by conquerors or factions; from giving a lasting efficacy to sanctions, that were intended to be temporary, or from too hastily employing means disproportioned to the end, in order to check the progress of some prevalent offence, it has happened, that the criminal law in every country in Europe is more imperfect than the civil.
Needs Revision and Amendment. Even in England, where our crown law is 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 open, where torture is unknown, and every delinquent is judged by his equals, even here we notice some particulars that need revision and amendment. These have chiefly arisen from too scrupulous adherence to some rules of the ancient common law; from not repealing penal laws, that are obsolete or absurd, and from too little attention in framing and passing new ones.
Care in Framing Laws. It is never usual, in the house of lords, 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. 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.
Absurd and Cruel Penalties. Had such a reference taken place, it is impossible, that in the eighteenth century, it could have been made a capital crime to break down the mound of a fish pond, or cut down a cherry tree in an orchard. To this day, it is a felony, without benefit of clergy, to be seen for one month in the company of persons, who are called Egyptians. These outrageous penalties, being seldom or never inflicted, are hardly known to the public, but that rather aggravates the mischief, by laying a snare for the unwary.' I. CRIMES.
Defined. A crime or misdemeanor is an act committed or omitted, in violation of a public law, either forbidding or commanding it. The words crimes and misdemeanors are mere synonymous terms, though in common usage the word “crimes” implies the more atrocious offence, while smaller faults and omissions are termed "misdemeanors."
Distinction between Public and Private Wrongs. 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 misdemeanors, 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.”
Private Action for the Tort. In all cases the crime includes an injury; every public offence is also a private wrong, and somewhat more; it affects the individual, and affects the community. Thus robbery is an injury to private property, but were that all, a civil satisfaction in damages might atone for it; the public mischief is the crime, and it must be punished. In gross injuries, the private wrong is absorbed in the public, and we seldom hear of satisfaction being made the individual. But there are crimes of an inferior nature, in which the public punishment is not so severe, but it affords room for private compensation also. Thus a party may be indicted for assault and battery, and be punished by fine and imprisonment, and the party may also have his privata remedy for damages, by action of trespass for the injury he has received. So in the case of a public nuisance, where one is injured by its existence.
1 These suggestions have led to a thorough revision and correction of the criminal code of England.
2 Wrongs done to individuals and not to the community, for which a private action is maintainable for damages, are usually termed torts.