LAW, CRWIXAI.. 



LAW, CRIMINAL. 



113 



nil* at Divine Uw, which an only discoverable by a process of 

 ..OK* tram the i Jut* mem of human society. 



N AL. The object of the English, as of every other 

 of criminal law is the prevention of injuries by the terror of 

 Hut it U not every injury the commission of which the 



cases it U satisfied 

 omitted, by either 



fit to prevent by mob mean* ; in most ossns it U satisfied 

 with the redrass of injuries after they have been 

 the party 



to hi* right, where that u possible, or by 

 i in damage*. In law, an injury U any violation 



of a legal right "or otniwon of a legal duty : a crime, then, mar be 

 denned to be ntch a violation of a legal right or omission of a legal 



:ibjots the person guilty of it to punishment. Such acts or 

 for which the law afford* redras only have, in England, been 

 I civil injurie. aa contradistinguished from crime*. 

 It is to be observed, bowerer, that, in strictness, every crime includes 

 an injury, in respect of which aome individual or the public may be 

 srtiUsd to redress. In felony, indeed, mch injury U said to be merged 

 in the crime; but U>i doctrine appear* to have originated in the circum- 

 stance of all fekmiea having, with one or two exceptions, been originally 

 puniihablc with death and having worked a forfeiture of all the offender's 

 property, and ao rendered redrew impossible. ,. 



Crimea, according to the R^gh law, are divisible into two great 

 claaic*, which depend upon the mode of proceeding peculiar to each, 

 namely, into 



1. Such as are punishable on indictment or information (the common 

 law methods of proceeding). 



2. Such a* are punishable on summary conviction before a justice or 

 justices of the peace or other authorised persons, without the inter- 

 vention of a jury (a mode of proceeding derived entirely from special 

 statutory enactments). 



It is proposed, in the first place, to treat of offences punishable on 

 indictment or information, and afterwards to shortly refer to those 

 " " > on summary conviction. 



Ofcxce* puxiihaMe on indictment or Information. 



offences are distributable into four classes or divisions 

 namely, tuiasons, pnemuuires, felonies, and misdemeanors. Persons 

 who commit the offences which constitute the last-mentioned division 

 may also be prosecuted by criminal information instead of being 

 indicted. 



The distinction between these cltunon is for the most part a. merely 

 arbitrary one, without any apparent reference to rule or principle, the 

 i of which is, that offences in their nature wholly undist.in- 

 e, in many instances, separated and subjected to puni-h- 

 widely disproportionate, and to forms of procedure widely 

 iHsthnil-r In fact, the only real distinguishing feature between one 

 class of crimes and another, at the present day, is to be found in 

 certain peculiarities of punishment and procedure incident to each. 

 Formerly, however, the classes of crimes were marked by distinctive 

 characteristic* ; but they have subsequently, either by artificial con- 

 structions of the courts or by legislative enactment*, been made to 

 embrace offences of a very different nature from those originally 

 fadwWI within them. For instance, the crime of treason, whether 

 Ugh or petit, implied a violation of the allegiance due from an inferior 

 to a superior. In the case of high treason, so called "by way of 

 eminent distinction," it was the violation of the allegiance due from a 

 object to hia liege lord and sovereign ; and in case of petit treason, 

 which was limited to the murder of a husband by his wife, a master 

 by his servant, or an ecclesiastic by hia inferior who owed him faith 

 and obedience, it was the breach of the allegiance of private and 

 domestic faith.* 



The characteristic above pointed out can no longer be traced in 

 many of the various constructive treasons which have been from time 

 to tone created by the court*. It will be sufficient here to give a 

 single illustration of the mode in which the law of treason has been 

 stretched to reach case* totally inconsistent with its original design. 

 By one of the clauses of the statute of treasons (25 Edw. 111. c. 2) it is 

 declared to be treason to Itry war agaix* the ting. A riotous assembly 

 attempting bv force to redress a public grievance as, for example, to 

 pull down alt inclosure* or to burn all meeting-house* has been held 

 to be leryifg of war within the meaning of this clause, although 

 then has been no direct intention or design whatever again*! 

 the state or the penon of the king. This construction is said to 

 depend upon the gauralitf of the design. If the intention be U. pull 

 down partintlar inclosure* or meeting-houses only, the offence is a 

 mere riot, and in quality a simple misdemeanor. Although the gene- 

 rality of the design may be a reason for awarding a higher punishment 

 in the former than in the latter case, there appears to be no foundation 

 in reason or principle for construing an offence, which but for such 

 generality would be a misdmnmnor only, to amount to the crime of 

 treason in levying war against the king. 



Again, the term "pncmunire" was originally applied to offences 

 which consisted in the introduction of any foreign juri < 

 especially the authority of the nee to the kin/ 



ahssqocntJy, to use the language of Mr. Serjeant Hawkins (' Pleas of 



I by U* * Oeo. IT. c. II, . 1, and tbe offences 

 r U aitUi< to to mrd*r our. 



the Crown,' b. 1, c. 19), " been applied to other heinous crimes, for 

 the most part having relation to the offences originally . 

 the notion of pncmunire, but in some instances none at all." The 

 Habeas Corpus Act (31 Car. II. c. 12) con- 

 mode of application. By the 12th section oi it in made a 

 pnemunire to semi any inhabitant of England, Wales, or 

 Berwick-upon-Tweed, a prisoner beyond the seaa in defiance of its 

 provisions to the contrary. 



The term " pr.emunire " was adopted from the first word of the 

 original writ on which the subsequent proceedings were fn 

 "Pnrnumin (fornramoiwri) facia* A. B. quod sit coram nobis," 4c. 

 [PKJEIIDKIBE.] The Criminal Law Commissioners proposed to abolish 

 prtcmunires as a class of crimes. (Seventh Report) 



The crime of felony had its origin in very remote times, and was 

 founded upon feudal principles. Ft* incidents were not formerly, as 

 they are now, of a mere arbitrary nature, peremptorily annexed to 

 certain criminal acts without reference to rule or principle. The crime 

 originally consisted in a violation of the feudal contract by the mis- 

 conduct of the lord 'or of the tenant ; and where committed by the 

 tenant, occasioned aa a consequence tbe forfeiture of his feud to the 

 lord. (4 Black. ' Comtu.,' p. 96 ; 4th and 7th ' livpts. of (Mm. Law 

 Commit.') 



Those crimes, therefore, which induced such forfeiture, and, by a 

 small deflection from the original sense, those which induced the 

 forfeiture ofj goods also, were denominated felonies; and 

 by long use the term felony came to signify the actual < 

 and not the penal consequence. " So that upon the whole," to use the 

 words of Mr. Justice Blackstone (4 ' Comm.,' p. 95), " the only adequate 

 definition of felony seems to be that whic ' id down, n 



an offence which occasions a total forfeiture , i' . : h. i ]:,'. 

 both, at the common law; and to which capital or. iunciit 



may be superadded according to the degree of guilt," \Vh, 

 punishment is less than capita], the offender loses his goods only ; 

 where capital, hia lands as well as his goods. The crimes which occa- 

 sioned such forfeiture were originally, with one or two exce] 

 capital ; but at the present day there are offences for which no K 

 punishment can be inflicted than imprisonment for a term not exceed- 

 ing three years, which are felonies, and consequently occasion the 

 forfeiture of all the offender's goods and chattels ; whilst other crimes, 

 for which the punishment may be as high as penal servitude, are mis- 

 demeanors only, and work no forfeiture. It is apparent from this that 

 the present law U very defective, and that the amount of punishment 

 is no longer the test of distinction between a felony aii'l i 

 It was proposed by the Criminal Law Commissioner* f.S-venth Kip.' 

 p. 16) to remedy this by making the liability to transportation the test 

 of distinction, that is, that all offences liable to a less punishment than 

 transportation should be misdemeanors only. 



The term" Misdemeanor" is used in the English system of Criminal 

 Law to denote such indictable offences are of a lower degree than 

 felony. 



We shall now point out the 'peculiarities of punishment which 

 distinguish one class of crimes from another at the present day. In 

 order to this, the penal consequences incident to the whole 1" 

 offences constituting each class will be first stated, and then in what, 

 respects those consequences differ from each other. The classes will 1 >e 

 taken in the same order as above. 



Tretumu. Treasons, with one exception mentioned Mow, are 

 capital; but whether capital or not, the offer 

 forfeits to the crown the personal estate of every description, w i 

 in action or possession, or settled by way of bust, whieh the off! 

 has otherwise than as an executor (' Cro. Car.' 566), or a trustee, or a 

 mortgagee (13 & 14 Viet. c. 60.) at the time of conviction; and in the 

 case of capital treasons, upon attainder by judgment of death or out- 

 Ititrnj, the blood of the offender is corrupted, but not so as to ol' 

 descents to such offender's posterity, when they are obliged to d. 

 title through such offender to a remoter ancestor (3 & 4 Will. IV. c. 

 105, s. 10), and all the freehold lauds and tenemcnU of inheritance in 

 fee-simple or fee-tail, and all other hereditament* (except copyholds), 

 whether in possession, reversion, or remainder; and all ih. right* of 

 entry on freehold lands and tenements which the offender has t 

 wise than as a trustee or mortgagee, at the time of the offence 

 Bitted or at any time afterwards), and also the profits of all i, 

 lands and tenements which the offender has in his or her own ri ; 

 life, so long a* such interest shall subsist, and, if the offender be a 

 male, his wife's dower, are forfeited to the crown (4 Black. ' Comm.,' 

 381; 2fi Hen. VIII. c. 13, s. 5 ; 83 Hen. VIII. c. 20, s. 2 ; and 5 4 6 

 Edw. VI. c. 11, us. 9 * IS); and all the < i,,g to 



the offender at the time of the olleiiee committed are fon, 

 loid of the manor ('Com. Dig.' Copyhold (Ml l.i. The above ]-enal 

 consequences are general to al! i.-<ons, unless, as is som< 



the case, the act which creates the particular tre^on 

 from some of them. The before-mentioned non 



it liable to those onlv 



tfUoh ae.-rue upon conviction, since the others follow only up..n tin- 

 party's being attainted, that is, sentenced to death or , -,,i |.,w,,l. w hi. h 

 latter, in the e.-wc of capital treasons and felonies, is of the same effect 

 as being sentenced to death. The existence of this non-capital treason 

 would ap]>ear to be the result of inadvertence. By the Forgery Con- 



