CRIMINAL LAW. That branch of jurisprudence which treats of crimes and offences.
2. From the very nature of the social com pact on which all municipal law is founded, and in consequence of which every man, when he enters into society, gives up a part of his natural liberty, result those laws which, in certain cases, authorize the inflic tion of penalties, the privation of liberty, and even the destruction of life, with a view to the future prevention of crime and to hi curing the safety and well-being of the public. Sales populi suprema lex.
3. The extreme importance of a know ledge of the criminal law is evident. For a mistake in point of law, which every person of discretion not only may know but is bound and presumed to know, is in criminal cases no defence. Ignorantia eorum, qvce quis scire tenetur non excusat. This law is adminis tered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. Per Tindal, C. J., in 10 Clark & F. 210. This doctrine has been carried so far as to include the case of a foreigner charged with a crime which was no offence in his own country. 1 Ell. & B. 1 ; Dears]. 51• 7 Carr. & P. 456 ; Russ. & R. Cr. Gas. 4. And, further, the criminal law, whether common or statute, is imperative with reference to the conduct of individuals : so that, if a statute forbids or commands a thing to be done, all acts or _omissions contrary to the prohibition or com mand of the statute are offences at common law, and ordinarily indictable as such. Broom, ,Comm. 865 ; Hawkins, Pl. Cr. bk. 2, c. 25, 4; 8 Q. B. 883. See 15 Mees. & W. Exch. 404.
4. In seeking for the sources of our law upon this subject, when a statute punishes a crime by its legal designation, without enu merating the acts which constitute it, then it is necessary to resort to the common law for a definition of the crime with its distinctions and qualifications. So if an act is made criminal, but no mode of prosecution is di rected or no punishment provided, the com mon law furnishes its aid, prescribing the mode of prosecution by indictment, and as a mode of punishment, fine, and imprison ment. This is commonly designated the common law of England ; but it might now be properly called the common law of this country. It was adopted by general consent when our ancestors first settled here. So far, therefore, as the rules and principles of the common law are applicable to the admi nistration of criminal law and have not been altered and modified by legislative enact ments or judicial decisions, they have the same force and effect as laws formally en acted. 5 Cush. Mass. 303, 304 ; 4 Mete.
Mass. 358; 13 id. 69, 70. "The common law of crimes," says a very recent writer, "is at present that jus vagum et incognitum against which jurists and vindicators of freedom have strenuously protested. It is to be ob served that the definitions of crimes, the nature of punishments, and the forms of criminal procedure originated, for the most part, in the principles of the most ancient common law, but that most of the unwritten rules touching crimes have been modified by 'statutes which assume the common-law terms and definitions as if their import were fami liar to the community. The common law of crimes has, partly from humane and partly from corrupt motives, been pre-eminently the sport of judicial constructions. In theory, indeed, it was made for the state of things that prevailed in this island and the kind of people that inhabited it in the reign of Rich ard I. ; in reality, it is the patchwork of every judge in every reign, from Coeur de Lion to Victoria." Ruins of Time Exempli .fied in Hale's Pleas of the Crown, by Amos, Pref. x.
5. Some of the leading principles of the English and American system of criminal law are—First. Every man is presumed to be innocent till the contrary is shown; and if there is any reasonable doubt of his guilt, he is entitled to the benefit of the doubt. Second. In general, no person can be j brought to trial until a grand jury on examina tion of the charge has found reason to hold 'him for trial. Third. The prisoner is en titled to trial by a jury of his peers, who are chosen from the body of the people with a view to impartiality, and whose decision on questions of fact is final. Fourth. The ques tion of his guilt is to be determined without reference to his general character. By the systems of continental Europe, on the con trary, the tribunal not only examines the evidence relating to the offence, but looks at the probabilities arising from the prisoner's previous history and habits of life. Fifth. The prisoner cannot be required to criminate himself, nor permitted to exculpate himself, by giving his own testimony on his trial. The justice and expediency of this latter restric tion are now much questioned. Sixth. He i cannot be twice put in jeopardy for the same offence. Seventh. He cannot be punished for an act which was not an offence by the law existing at the time of its commission ; nor can a severer punishment be inflicted than was declared by law at that time.