Commentaries on the Laws of England

Book IV: On Public Wrongs

Sir William Blackstone

• Editorial: Jazzybee Verlag
• Año: 2017
• ISBN:
  9783849649852
• Categoría: Derecho
• Categoría: Derecho público

The Commentaries were long regarded as the leading work on the development of English law and played a role in the development of the American legal system. They were in fact the first methodical treatise on the common law suitable for a lay readership since at least the Middle Ages. This is book four out of four, including more than 1700 footnotes and annotations.

BOOK THE FOURTH.: Of Public Wrongs.

CHAPTER I.: OF THE NATURE OF CRIMES, AND THEIR PUNISHMENT.

We are now arrived at the fourth and last branch of these commentaries, which treats of public wrongs, or crimes and misdemesnours. For we may remember that, in the beginning of the preceding book, ^{Ref 1939} wrongs were divided into two species: the one private, and the other public. 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 crimes and misdemesnours; with the means of their prevention 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 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 misdemesnour.

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 king, in whom centres 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. ^{Ref 1940}

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 ^{Ref 1941} 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.

In proportion to the importance of the criminal law ought also to be the care and attention of the legislature in properly forming and enforeing 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, uarrowed, 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 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. ^{Ref 1942} 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 antient 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. ^{Ref 1943} 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 fish-pond, whereby any fish shall escape; or to cut down a cherry-tree in an orchard. ^{Ref 1944 Ref 1945} Were even a committee appointed but once in a 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. ^{Ref 1946 Ref 1947}

It is true that these outrageous penalties, being seldom 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 one to hint them with decency to those whose abilities and stations enable them to apply the remedy. ^{Ref 1948} 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 misdemeanour is an act committed or omitted, in violation of a public law either forbidding or commanding it. This general definition comprehends both crimes and misdemeanours, which, properly speaking, are 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 omissions of less consequence, are comprised under the gentler names of “misdemeanours” only. ^{Ref 1949}

The distinction of public wrongs from private, of crimes and misdemeanours from civil injuries, seems 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 misdemeanours, 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. As, if I detain a field from another man, to which the law has given him a right, this is a civil injury, and not a crime; for here only the right of an individual is concerned, and it is immaterial to the public which of us is in possession of the land: but treason, murder, and robbery are properly ranked among crimes, since, besides the injury done to individuals, they strike at the very being of society, which cannot possibly subsist where actions of this sort are suffered to escape with impunity. ^{Ref 1950}

In all cases the crime includes an injury: every public offence is also a private wrong, and somewhat more; it affects the individual, and it likewise affects the community. Thus, treason in imagining the king’s death involves in it conspiracy against an individual, which is also a civil injury; but, as this species of treason, in its consequences, principally tends to the dissolution of government, and the destruction thereby of the order and peace of society, this denominates it a crime of the highest magnitude. Murder is an injury to the life of an individual; but the law of society considers principally the loss which the state sustains by being deprived of a member, and the pernicious example thereby set for others to do the like. Robbery may be considered in the same view: it is an injury to private property; but, were that all, a civil satisfaction in damages might atone for it; the public mischief is the thing for the prevention of which our laws have made it a capital offence. In these gross and atrocious injuries the private wrong is swallowed up in the public: we seldom hear any mention made of satisfaction to the individual, the satisfaction to the community being so very great. And, indeed, as the public crime is not otherwise avenged than by forfeiture of life and property, it is impossible afterwards to make any reparation for the private wrong, which can only be had from the body or goods of the aggressor. ^{Ref 1951} But there are crimes of an inferior nature, in which the public punishment is not so severe but it affords room for a private compensation also; and herein the distinction of crimes from civil injuries is very apparent. For instance: in the case of battery, or beating another, the aggressor may be indicted for this at the suit of the king, for disturbing the public peace, and be punished criminally by fine and imprisonment; and the party beaten may also have his private remedy by action of trespass for the injury which he in particular sustains, and recover a civil satisfaction in damages. ^{Ref 1952} So, also, in case of a public nuisance, as digging a ditch across a highway: this is punishable by indictment as a common offence to the whole kingdom and all his majesty’s subjects; but if any individual sustains any special damage thereby, as laming his horse, breaking his carriage, or the like, the offender may be compelled to make ample satisfaction, as well for the private injury as for the public wrong.

Upon the whole, we may observe that, in taking cognizance of all wrongs or unlawful acts, the law has a double view, viz.: not only to redress the party injured by either restoring to him his right, if possible, or by giving him an equivalent, the manner of doing which was the object of our inquiries in the preceding book of these commentaries, but also to secure to the public the benefit of society, by preventing or punishing every breach and violation of those laws which the sovereign power has thought proper to establish for the government and tranquillity of the whole. What those breaches are, and how prevented or punished, are to be considered in the present book.

II. The nature of crimes and misdemeanours in general being thus ascertained and distinguished, I proceed, in the next place, to consider the general nature of punishments, which are evils or inconveniences consequent upon crimes and misdemeanours; being devised, denounced, and inflicted, by human laws, in consequence of disobedience or misbehaviour in those to regulate whose conduct such laws were respectively made. And herein we will briefly consider the power, the end, and the measure, of human punishment.

1. As to the power of human punishment, or the right of the temporal legislator to inflict discretionary penalties for crimes and misdemeanours ^{Ref 1953} It is clear that the right of punishing crimes against the law of nature, as murder, and the like, is, in a state of mere nature, vested in every individual. For it must be vested in somebody; otherwise the laws of nature would be vain and fruitless, if none were empowered to put them in execution: and, if that power is vested in any one, it must also be vested in all mankind, since all are by nature equal. Whereof the first murderer, Cain, was so sensible, that we find him ^{Ref 1954} expressing his apprehensions that whoever should find him would slay him. In a state of society this right is transferred from individuals to the sovereign power; whereby men are prevented from being judges in their own causes, which is one of the evils that civil government was intended to remedy. Whatever power, therefore, individuals had of punishing offences against the law of nature, that is now vested in the magistrate alone, who bears the sword of justice by the consent of the whole community. And to this precedent natural power of individuals must be referred that right, which some have argued to belong to every state, (though, in fact, never exercised by any, ) of punishing not only their own subjects, but also foreign ambassadors, even with death itself, in case they have offended, not indeed against the municipal laws of the country, but against the divine laws of nature, and become liable thereby to forfeit their lives for their guilt. ^{Ref 1955}

As to offences merely against the laws of society, which are only mala prohibita, and not mala in se, the temporal magistrate is also empowered to inflict coercive penalties for such transgressions, and this by the consent of individuals who, in forming societies, did either tacitly or expressly invest the sovereign power with the right of making laws, and of enforcing obedience to them when made by exercising, upon their non-observance, severities adequate to the evil. The lawfulness, therefore, of punishing such criminals, is founded upon this principle, that the law by which they suffer was made by their own consent: it is a part of the original contract into which they entered when first they engaged in society; it was calculated for, and has long contributed to, their own security.

This right, therefore, being thus conferred by universal consent, gives to the state exactly the same power, and no more, over all its members, as each individual member had naturally over himself or others, which has occasioned some to doubt how far a human legislature ought to inflict capital punishments for positive offences, —offences against the municipal law only, and not against the law of nature, —since no individual has, naturally, a power of inflicting death upon himself or others for actions in themselves indifferent. With regard to offences mala in se, capital punishments are in some instances inflicted by the immediate command of God himself to all mankind; as in the case of murder, by the precept delivered to Noah, their common ancestor and representative, “whoso sheddeth man’s blood, by man shall his blood be shed.” ^{Ref 1956} In other instances they are inflicted after the example of the Creator in his positive code of laws for the regulation of the Jewish republic; as in the case of the crime against nature. But they are sometimes inflicted without such express warrant or example, at the will and discretion of the human legislature; as for forgery, for theft, and sometimes for offences of a lighter kind. Of these we are principally to speak, as these crimes are none of them offences against natural, but only against social rights, not even theft itself, unless it be accompanied with violence to one’s house or person; all others being an infringement of that right of property which, as we have formerly seen, ^{Ref 1957} owes its origin not to the law of nature, but merely to civil society. ^{Ref 1958}

The practice of inflicting capital punishments, for offences of human institution, is thus justified by that great and good man, Sir Matthew Hale: ^{Ref 1959} “When offences grow enormous, frequent, and dangerous to a kingdom or state, destructive or highly pernicious to civil societies, and to the great insecurity and danger of the kingdom or its inhabitants, severe punishment, and even death itself, is necessary to be annexed to laws in many cases by the prudence of lawgivers.” It is therefore the enormity or dangerous tendency of the crime that alone can warrant any earthly legislature in putting him to death that commits it. It is not its frequency only, or the difficulty of otherwise preventing it, that will excuse our attempting to prevent it by a wanton effusion of human blood. For though the end of punishment is to deter men from offending, it never can follow from thence that it is lawful to deter them at any rate and by any means; since there may be unlawful methods of enforcing obedience even to the justest laws. Every humane legislator will be therefore extremely cautious of establishing laws that inflict the penalty of death, especially for slight offences or such as are merely positive. He will expect a better reason for his so doing than that loose one which generally is given, —that it is found by former experience that no lighter penalty will be effectual. For is it found upon further...

Índice

• BOOK THE FOURTH.: Of Public Wrongs.
• CHAPTER I.: OF THE NATURE OF CRIMES, AND THEIR PUNISHMENT.
• CHAPTER II.: OF THE PERSONS CAPABLE OF COMMITTING CRIMES.
• CHAPTER III.: OF PRINCIPALS AND ACCESSORIES.
• CHAPTER IV.: OF OFFENCES AGAINST GOD AND RELIGION.
• CHAPTER V.: OF OFFENCES AGAINST THE LAW OF NATIONS.
• CHAPTER VI.: OF HIGH TREASON.
• CHAPTER VII.: OF FELONIES INJURIOUS TO THE KING’S PREROGATIVE.
• CHAPTER VIII.: OF PRÆMUNIRE.
• CHAPTER IX.: OF MISPRISIONS AND CONTEMPTS AFFECTING THE KING AND GOVERNMENT.
• CHAPTER X.: OF OFFENCES AGAINST PUBLIC JUSTICE.
• CHAPTER XI.: OF OFFENCES AGAINST THE PUBLIC PEACE.
• CHAPTER XII.: OF OFFENCES AGAINST PUBLIC TRADE.
• CHAPTER XIII.: OF OFFENCES AGAINST THE PUBLIC HEALTH, AND THE PUBLIC POLICE OR ECONOMY.
• CHAPTER XIV.: OF HOMICIDE.
• CHAPTER XV.: OF OFFENCES AGAINST THE PERSONS OF INDIVIDUALS.
• CHAPTER XVI.: OF OFFENCES AGAINST THE HABITATIONS OF INDIVIDUALS.
• CHAPTER XVII.: OF OFFENCES AGAINST PRIVATE PROPERTY.
• CHAPTER XVIII.: OF THE MEANS OF PREVENTING OFFENCES.
• CHAPTER XIX.: OF COURTS OF A CRIMINAL JURISDICTION.
• CHAPTER XX.: OF SUMMARY CONVICTIONS.
• CHAPTER XXI.: OF ARRESTS.
• CHAPTER XXII.: OF COMMITMENT AND BAIL.
• CHAPTER XXIII.: OF THE SEVERAL MODES OF PROSECUTION.
• CHAPTER XXIV.: OF PROCESS UPON AN INDICTMENT.
• CHAPTER XXV.: OF ARRAIGNMENT AND ITS INCIDENTS.
• CHAPTER XXVI.: OF PLEA, AND ISSUE.
• CHAPTER XXVII.: OF TRIAL AND CONVICTION.
• CHAPTER XXVIII.: OF THE BENEFIT OF CLERGY.
• CHAPTER XXIX.: OF JUDGMENT AND ITS CONSEQUENCES.
• CHAPTER XXX.: OF REVERSAL OF JUDGMENT.
• CHAPTER XXXI.: OF REPRIEVE AND PARDON.
• CHAPTER XXXII.: OF EXECUTION.
• CHAPTER XXXIII.: OF THE RISE, PROGRESS, AND GRADUAL IMPROVEMENTS OF THE LAWS OF ENGLAND.
• APPENDIX.
• Sect. 1.: Record of an Indictment and Conviction of Murder, at the Assizes.
• Sect. 2.: Conviction of Manslaughter.
• Sect. 3.: Entry of a Trial instanter in the Court of King’s Bench, upon a Collateral Issue; and Rule of Court for Execution thereon.
• Sect. 4.: Warrant of Execution on Judgment of Death, at the General Gaol-Delivery in London and Middlesex.
• Sect. 5.: Writ of Execution upon a Judgment of Murder, before the King in Parliament.
• Footnotes: