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Criminal Law

treason, king, punishable, crime, redress, war, levying, classes, generality and legal

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LAW, CRIMINAL. The object of the English as of every other system of Criminal Law is the prevention of inju ries by the terror of punishment ; but it is not every injury the commission of which the thinks fit to prevent by such means ; in most cases it is satisfied with the redress of injuries after they have been committed, by either restoring the party injured to his right, where that is possible, or by giving him compensation in damages. In law, an injury is any violation of a legal right or omission of a legal duty : a crime, then, may be de fined to be such a violation of a legal right or omission of a legal duty as sub jects the person guilty of it to punish ment. Such acts or omissions for which the law affords redress only have, in Eng land, been usually denominated civil in juries as contradistinguished from crimes. It is to be observed however, that, in strictness, every crime includes an injury, in respect of which some individual or the public may be entitled to redress. In felony, indeed, such injury is said to be merged in the crime ; but this doctrine appears to have originated in the circum stance of all felonies having, with one or two exceptions, been originally punishable with death and having worked a forfeiture of all the offender's property, and so ren dered redress Crimes, according to the English law, are divisible into two great classes, which depend upon the mode of proceeding pecu liar to each, viz. into 1st. Such as are punishable on indict ment or information (the common law methods of proceeding).

idly. Such as are punishable on sum mary conviction before a justice or jus tices of the peace or other authorized persons, without the intervention of a jury (a mode of proceeding derived en ti..ely from special statutory enactments).

It is proposed, in the first place, to treat of olIgnces punishable on indict ment or information, and afterwards to shortly refer to those punishable on sum mary conviction.

Offences punishable on Indictment or Information.

Indictable offences are distributable into four classes or divisions, viz.: Trea sons, Priemunires, Felonies, and Misde meanors. Persons who commit the of fences which constitute the last-mentioned division may also be prosecuted by cri minal information instead of being in dicted.

The distinction between these classes is, for the most part, a merely arbitrary one, without any apparent reference to rule or principle, the consequence of which is that offences in their nature wholly undistinguishable are, in many instances, separated and subjected to punishments widely disproportionate, and to forms of procedure widely dissimilar. In fact, the only real distinguishing fea ture 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. For merly, however, the classes of crimes were marked by distinctive character istics ; but they have subsequently, either by artificial constructions of the courts or by legislative enactment, been made to embrace offences of a very different na ture from those originally included within them. For instance, the crime of treason, whether high or petit, implied a viola tion of the allegiance due from an in ferior 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 subject to his 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 his 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 time created by the courts. It will be sufficient here to give a single illustration of the mode in which the law of treason has been stretched to reach cases totally inconsistent with its original design. By one of the clauses of the statute of treasons (25 Edw. III. c. 2) it is de clared to be treason to levy war against the king. A riotous assembly attempting by force to redress a public grievance, as, for example, to pull down all in closures or to burn all meeting-houses, has been held to be a levying of war within the meaning of this clause, al though there has been no direct intention or design whatever against either the state or the person of the king. This construction is said to depend upon the generality of the design. If the intention be to pull down particular inclosures or meeting-houses only, the offence is a mere riot, and in quality a simple misde meanor. Although the generality 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 con struing an offence, which but for such generality would be a misdemeanor only, to amount to the crime of treason in levying war against the king. The Cri minal Law Commissioners (4th, 5th, and 6th Reports) have recommended that this offence should no longer be con sidered to fall within the statute of trea sons. They propose that the only assem blings or risings of the people which should amount to a levying of war against the king should be such as are against the person of the king, or against any army or force appointed by him in op position to his authority, or with intent to do him bodily harm, or impose any restraint upon his person, or to depose him, or to dispossess or deprive him of any portion of his dominions or regal authority, or with intent by force or constraint to compel him to change his measures or counsels, or to put any force or constraint upon or to intimidate or overawe both houses or either house of parliament ; and that no assembling or rising of the people should by reason of any illegality or generality of purpose be deemed to be a levying of war against the king, unless it be with one or other of the several intentions before mentioned. Such riotous and tumultuous meetings as have no such intention in view they recommend should be denominated fe lonies or misdemeanors merely, according to the circumstances by which they are attended.

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