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its members: but it may often occur, that what is treated by the law as a private wrong is not less injurious to the community than another offence, which is, nevertheless, placed under the head of public wrongs. Thus, for instance, it cannot surely be said that the crime of petty larceny is more pernicious to society than the wrongful and fraudulent detaining of an estate, or a lawful debt. Blackstone1 says that private wrongs or civil injuries are an infringement or privation of the civil rights of individuals considered merely as individuals. But does not theft clearly come under this description? Blackstone seems to have been aware of this; for in exemplifying the distinction between public and private wrongs, he enumerates as public wrongs a number of instances, all consisting in an offence either against the state, or directly against the public peace, or including a violation of the rights of the community.
But Blackstone was too wise not to see the true reason why some wrongs are visited with punishment as offences against the community, while in others the law only awards reparation to the party injured. The illustrious commentator says, "the law has a double view, namely, not only to redress the party injured, but also to secure to the public the benefit of society, by preventing or punishing every breach of those laws which the sovereign power has established for the tranquillity and government of the whole."2 Now, we may deduce from this very accurate description of the objects of municipal law and government, that where the wrong is sufficiently redressed, and the wrong-doer sufficiently discouraged by the reparation which he is forced to make to the injured person, the wrong may be treated as a private one; but where the nature of the wrong is such that any reparation must be 1 Blackst. Com. b. iv. c. i. § 1. 2 Ibid.
impossible or inadequate, and where the enforcement of the obligation to make reparation is ineffectual for the discouragement of wrong-doers, society is bound, for the protection of its members, to threaten and execute a punishment in such cases, as well as in those wherein the grave nature, or the object of the crime, render it public, as being an evident injury to the community directly or indirectly. We may conclude, then, that the distinction between the civil and criminal law is a matter of public policy, and may therefore vary greatly.
For instance, a refusal to pay rent which is legally due is a civil wrong, and sufficiently repaired by civil remedies; but if there were a general refusal to pay rent all over the country, that number of private wrongs might become so serious in its effect, that it might be the duty of the legislature to stop the progress of such an evil, by adding a public prosecution and penalty to the inadequate remedies of the civil law: and yet each of the refractory tenants might be actuated by no design against the commonwealth.
Thus, again, for instance, the offence of calumniating a private individual cannot be, strictly speaking, an offence against society, or a public wrong, unless it has a tendency to produce a breach of the peace, which may, in many instances, not be the case: but mere compensation to the party injured may be entirely, or to a great degree, inadequate, either for indemnifying the party, or discouraging offenders; for rich men will run the risk of being made to pay damages, and poor men would know that they could not be forced to do so. It follows, then, that society is bound (because the protection of individuals is its first duty) to punish calumny as a public crime, besides permitting the injured person to sue for damages for the detriment suffered thereby.
Upon the same principles, theft would be very inadequately discouraged by the mere civil remedy of restitution, since the thief would have nothing to lose and every thing to gain from his crime; and he could evade even the obligation of restitution, by making away with the stolen goods, if he could not, by reason of poverty, be made to pay an equivalent; and for this reason, stealing a handkerchief or a pair of gloves is a public crime in all civilised countries; while the refusal to pay a debt of a thousand pounds is merely visited with a civil action.
With respect to the distinction between civil and ecelesiastical jurisdiction, it arises from the secular or the ecclesiastical nature of the laws which are therein administered. It has already been shewn, in treating of the canon law (Chap. I.), that the ecclesiastical jurisdiction is essentially and purely spiritual, though the civil authority has invested it with an external and coercive power; and that the municipal law of England has also entrusted to the church the administration of the law touching certain matters which are properly of a secular nature. But we shall have an opportunity of returning to this subject when we come to treat of the ecclesiastical courts.
It has already been shewn, that by our constitution the judicial power is vested in the crown. But it would be inconvenient and improper that the supreme magistrate should be occupied in the discharge of judicial functions, even were it possible for a single person to decide the multitude of questions which are constantly arising respecting the application of the laws. Thus, we have already seen that some functions of the supreme power are exercised by those persons in whom that power is originally vested; but others are more properly delegated to inferior magistrates; and of this nature is the judicial branch of government. There must, indeed, necessarily exist in every state a power of establishing persons entrusted with the discharge of judicial and other public functions.1 This power (as has been already shewn) is vested by the English constitution in the queen.
To the crown, therefore, belongs the erection of courts of, and the appointment of judges for, the administration of justice, of which her majesty is the only ultimate source within her empire; for, whether created by act of parliament, or letters patent, or subsisting by prescription (the only methods by which any courts of judicature* can exist), the queen's consent in the two former is expressly, and in the latter impliedly, given. In all these courts the queen is supposed, in contemplation of law, to be always present; but as that is, in fact, impossible, she is there represented by her judges, whose power is only an emanation of the royal prerogative.3
For the more complete administration of justice, there are, by the English constitution, a great variety of courts. Of these (as Coke informs us) some are ecclesiastical, and some temporal; some of record, and others not of record; some to inquire, hear, and determine, some to inquire only; some guided by one law, some by another: the bounds and nature of all being most necessary to be known.4
All these courts will be taken notice of in their proper places; and it is therefore sufficient to mention here one distinction, with reference to their nature, in our law, which runs through them all, namely, that some are courts of record, others not of record. Blackstone informs us, that a court of record is that where the acts and judicial
1 Pufendorf, Dr. de la N. et des G. l . vii. c. iv. § vi
3 Blackst. Com. b. iii. c. iii. p. 23, 24.
4 i Inst. Prooem.
proceedings are enrolled in parchment for a perpetual memorial and testimony; which rolls are called the records of the court, and are of such high and supereminent authority, that their truth is not to be called in question. For it is a settled rule and maxim, that nothing shall be averred against a record; nor shall any plea, nor even proofs, be admitted to the contrary.1 And if the existence of a record be denied, it shall be tried by nothing but itself,—that is, upon bare inspection whether there be any such record or no,—else there would be no end of disputes. But if there appear any mistake of the clerk in making up such record, the court will (within a limited time, and subject to certain circumstances) direct him to amend it.2 All courts of record are the queen's courts, in right of her crown and dignity ;3 and therefore no other court hath authority to fine and imprison; so that the very erection of a new jurisdiction, with the power of fine and imprisonment, makes it instantly a court of record.4 A court not of record is the court of a private man, whom the law will not entrust with any discretionary power over the fortune or liberty of his fellow-subjects. Such are the courts baron incident to every manor, and other inferior jurisdictions, where proceedings are not enrolled or recorded, but as well their existence as the truth of the matters therein contained shall be tried by a jury.5 But there are courts of record which have no power of fine and imprisonment, as is the case with the court of commissioners of sewers;6, and there are courts of the queen which are not courts of record, such as the court of equity in chancery, and the court of admiralty.
1 Co. Litt . 260, and note. 4 Rep. 52.
J As to amendment of records, see Blackst. b. iii. c. xxv. p. 457, 8tc.
3 Finch, L. 231.
4 Salk. 200. 12 Mod. 388.
5 Blackst. Com. b. iii. c. iii. p. 24, 25. 8 1 Sid. 145.