Of the Progress from Edward I. to the Reformation Of the Progress from the Reformation to the Restoration WE are now arrived at the sixth and last branch of the Commentaries; which treats of public wrongs, or crimes. For it will be remembered that wrongs were divided into two species; the one private, and the other public (a). Private wrongs, otherwise termed civil injuries, were the subject of the preceding Book. [We are now, therefore, lastly, to proceed to the consideration of public wrongs, or crimes: in pursuit of which we shall consider, firstly, the general nature of crimes and punishments; secondly, the persons capable of committing crimes; thirdly, their several degrees of guilt as principals or accessories; fourthly, the several species of crimes, with the punishment annexed to each (a) Vide sup. vol. I. p. 138. VOL. IV. B [by the laws of England; fifthly, the means of preventing their perpetration; and, sixthly, the method of inflicting those punishments which the law has annexed to each crime respectively. First, as to the general nature of crimes and their punishment: the discussion and admeasurement of which forms, 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 sovereign,-in whom centres the majesty of the whole community, is supposed by the law to be the person injured by every wrong done to that community; and is therefore, in all cases, the proper prosecutor for every such offence. 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 upon a similar occasion (b), 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. 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 on principles that are permanent, uniform, and universal; and always conformable to the dictates of truth and (b) Sir Michael Foster, pref. to Rep. [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 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; or from retaining the discordant political regulations which successive conquerors or factions have established in the various revolutions of government; or 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, lastly, from 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. And 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 trials are in the face of the world; where torture is unknown, and every delinquent is judged by those of his equals against whom he can form no exception, nor even a personal dislike (c):]—yet our criminal code was long deformed by an unwise and inhuman severity; and though in modern times many signal reforms have been introduced into this branch of our juridical system, even now, no candid commentator can pronounce upon it an unmixed encomium. We shall proceed now to consider, in the first place, the general nature of crimes; and this as regards, first, the crime itself; and, secondly, the punishment. I. A crime is the violation of a right, when considered in reference to the evil tendency of such violation, as regards the community at large (d). The distinction of public wrongs from private-of crimes from civil injuries-seems upon examination 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 misdemeanors, are a violation of the same rights, considered in reference to their effect on the community in its aggregate capacity (e). [As if I detain a field from another man, to which "vided by 1 & 2 Ph. & M. c. 4, "and 5 Eliz. c. 20." It is scarcely necessary to remark, that all these sanguinary laws are now repealed. As to the two first-mentioned offences, the repeal is by 4 Geo. 4, c. 44, and 7 & 8 Geo. 4, c. 30, ss. 15, 19; as to the last, by 23 Geo. 3, c. 51, and 1 Geo. 4, c. 116. (d) The definition of Blackstone (vol. iv. p. 5), is as follows: "A "crime or misdemeanor is an act "committed or omitted, in viola"tion of a public law either for"bidding or commanding it." But this scarcely points out the difference between a crime and a civil injury. (e) The expression of Blackstone (ubi sup.) is, "A breach and vio"lation of the public rights and "duties due to the whole com"munity, considered as a com"munity in its social and aggre"gate capacity." We are thus presented with another definition of crime; but it is not more satisfactory than the first, for it merely raises the question of what is meant by "public rights due to the community." If the expression is intended to exclude private rights due to the individual, the definition seems wrong; for a violation of such rights as these clearly amounts to a crime; as in the case of a murder or battery. |