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.(1) 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 misdemeanor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemeanors; 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 name of "misdemeanors" only. (2)

The distinction of public wrongs from private, of crimes and misdemeanors 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 misdemeanors, 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.(3)

(1) This hint has been taken, at last, and a thorough revision has been made of the criminal law of England, relieving it of its worst and most barbarous features.

(2) [In the English law, misdemeanor is generally used in contradistinction to felony, and misdemeanors comprehend all indictable offences which do not amount to felony; as perjury, battery, libels, conspiracies, attempts, and solicitations to commit felonies, &c.]

For the enlarged meaning of the word felony in American law, see Carpenter v. Nixon, 5 Hill, 260; post, p. 94. note.

(3) [The distinction between public crimes and private injuries seems entirely to be created by positive laws, and is referable only to civil institutions. Every violation of a moral law, or natural obligation, is an injury, for which the offender ought to inake retribution to the individuals who immediately suffer from it; and it is also a crime for which he ought to be punished to that extent, which would deter both him and others from a repetiton of the offence. In positive laws those acts are denominated injuries, for which the legislature has provided only retribution, or a compensation in damages; but when, from experience, it is discovered that this is not sufficient to restrain within moderate bounds certain classes of injuries, it then becomes neces sary for the legislative power to raise them into crimes, and to endeavor to repress them by the terror of punishment, or the sword of the public magistrate. The word "crime" has no technical meaning in the law of England. It seems, when it has a reference to positive law, to comprehend those acts which subject the offender to punishment. When the words high crimes and misdemeanors are used in prosecutions by impeachment, the words high crimes have no definite signification, but are used merely to give greater solemnity to the charge. When the word crime is used with a reference to moral law, it implies every deviation from moral rectitude. Hence we say, it is a crime to refuse the payment of a just debt; it is a crime wilfully to do an injury to another's person or property without making him satisfaction. To destroy another's property wilfully, without making the owner a compensation, is, in all cases, a worse crime in reason than theft; because the individual deprived of his property suffers precisely the same injury, and the public loses the benefit of that property, which contributes to the support of no one; and he who does the injury has not the temptation of him who steals to supply his wants. In the case of those actions which are only civil injuries, and to which no legal punishment is annexed, the law has supposed that retribution will be sufficient to deter the commission of them.]

The meaning of the phrase "high crimes and misdemeanors" underwent much discussion in the case of President Johnson, who was tried on articles of impeachment in 1868, but the result of the case was not such that any authoritative rule can be derived from it. See, upon the general subject, articles in the American Law Register, vol. vi, N. S. pp. 257 and 641. Wrongs done to individuals for which they may have a remedy by private action, but which involve no offence against the state, are usually spoken of as torts.

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 [*6] 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 preven tion 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.(4) 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 destinction 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. 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 al 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, of 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 tranquility 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 misdemeanors 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

(4) [The civil right to sue for the injury the party has received for a case of felony is not in general merged or destroyed, but only suspended until he has performed his duty to society, by an endeavor to bring the offender to justice and after the party on whom suspicion was fixed has been convicted or acquitted, without collusion, the prosecutor may support an action for the same cause as that on which the criminal prosecution was founded. Styles, 346; 12 East, 409; Rep. T. Hardw. 350; 17 Ves. 329. No action can be brought, or bill in equity filed, in relation to a felony, until the offender has been duly tried for the offence (id.), or that every exertion has been made to bring him to justice.]

This is believed not to be law in the United States, where the management and control of prosecutions for offences against the state are confined to officers chosen or appointed for the purpose. Parties injured by a felony are not permitted to compound with the offender, and to receive a compensation for suppressing a prosecution, or concealing the evidence of the crime; but they may demand and recover compensation for the private injury the crime has inflicted upon them, without awaiting the result of such action as the public prosecutor may see fit to institute. See Plumer v. Smith, 5 N. H. 554; Boston, &c., R. R. Co. v. Dana, 1 Gray, 83, and cases cited.

misdemeanors; 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.

[*8]

1. As to the power of human punishment, or the right of the temporal legislator to inflict discretionary penalties for crimes and misdemeanors. (h) It is clear, that the right of punishing crimes against the laws 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 (i) 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. (k)

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 [*9] 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." (?) 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

(h) See Grotius, de j. b. & p. 1. 2, c. 20. Puffendorf. L. of Nat. & N. l. 8, c. 3. (k) See book I, p. 254. (1) Gen. ix, 6.

(i) Gen. iv, 14.

of property, which, as we have formerly seen, (m) owes its origin not to the law of nature, but merely to civil society. (5)

The practice of inflicting capital punishments, for offences of human institution, is thus justified by that great and good man, Sir Matthew Hale: (n)" 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. [*10] *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 can never 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 farther experience, that capital punishments are more effectual? Was the vast territory of all the Russias worse regulated under the late empress Elizabeth, than under her more sanguinary predecessors? Is it now, under Catherine II, less civilized, less social, less secure? And yet we are assured that neither of these illustrious princesses have, throughout their whole administration, inflicted the penalty of death; and the latter has, upon full persuasion of its being useless, nay, even pernicious, given orders for abolishing it entirely throughout her extensive dominions. (9) But, indeed, were capital punishments proved by experience to be a sure and effectual remedy, that would not prove the necessity (upon which the justice and propriety depend) of inflicting them upon all occasions when other expedients fail. I fear this reasoning would extend a great deal too far. For instance, the damage done to our public roads by loaded wagons is universally allowed, and many laws have been made to prevent it; none of which have hitherto proved effectual. But it does not therefore follow that it would be just for the legislature to inflict death upon every obstinate carrier, who defeats or eludes the provision of former statutes. Where the evil to be prevented is not adequate to the violence of the preventive, a sovereign that thinks seriously can never justify such a law to the dictates of *conscience and humanity. To shed the blood of our fellow creature is [*11] a matter that requires the greatest deliberation and the fullest conviction of our own authority: for life is the immediate gift of God to man; which neither he can resign, nor can it be taken from him, unless by the command or permission of Him who gave it; either expressly revealed, or eollected from the laws of nature or society by clear and indisputable demonstration.

I would not be understood to deny the right of the legislature in any country to enforce its own laws by the death of the transgressor, though persons of some abilities have doubted it; but only to suggest a few hints for the consideration of such as are, or may hereafter become, legislators. When a question arises,

(m) Book II. c. 1.

(n) 1 Hal. P. C. 13.

(0) Grand instructions for framing a new code of laws for the Russian empire, § 210.

(1) [It is strange that the learned judge's conclusion, viz., that theft itself is not an offence against natural rights, did not lead him to suspect the fallacy of the position, that the right of property owes its origin not to the law of nature, but merely to civil society, which he has also advanced in a former book (book 2, p. 11), and which I have there presumed to controvert. If theft be not a violation of the law of nature and reason, it would follow that there is no moral turpitude in dishonesty. "Non igitur magis est contra naturam morbus aut egestas aut quid hujusmodi quain detractio aut appetitio alieni."-Cic. Thou shalt not steal, is certainly one of the first precepts both of uature and religion. CHRISTIAN.

whether death may be lawfully inflicted for this or that transgression, the wisdom of the laws must decide it; and to this public judgment or decision all private judgments must submit; else there is an end of the first principle of all society and government. The guilt of blood, if any, must lie at their doors, who misinterpret the extent of their warrant; and not at the doors of the subject who is bound to receive the interpretations that are given by the sovereign.

power.

2. As to to the end, or final cause of human punishments. This is not by way of atonement or expiation for the crime committed; for that must be left to the just determination of the Supreme Being; but as a precaution against future offences of the same kind. This is effected three ways: either by the amendment of the offender himself; for which purpose all corporal punishments, fines, and temporary exile or imprisoment, are inflicted: òr, by deterring others by the dread of his example from offending in the like way, "ut pæna (as Tully (p) expresses it) ad paucos, metus ad omnes perveniat," which gives rise to all ignominious punishments, and to such executions of justice as are open and public: *or, lastly, by depriving the party injuring of the power to do future mischief; which is effected by either putting him to death or con[*12] demning him to perpetual confinement, slavery, or exile. The same one end, of preventing future crimes, is endeavoured to be answered by each of these three species of punishment. The public gains equal security, whether the offender himself be amended by wholesome correction, or whether he be disabled from doing any further harm: and if the penalty fails of both these effects, as it may do, still the terror of his example remains as a warning to other citizens. The method, however, of inflicting punishment ought always to be proportioned to the particular purpose it is meant to serve, and by no means to exceed it: therefore, the pains of death, and perpetual disability by exile, slavery, or imprisonment ought never to be inflicted, but when the offender appears incorrigible: which may be collected either from a repetition of minuter offences; or from the perpetration of some one crime of deep malignity, which of itself demonstrates a disposition without hope or probability of amendment; and in such cases it would be cruelty to the public to defer the punishment of such a criminal, till he had an opportunity of repeating perhaps the worst of villanies.

3. As to the measure of human punishments. From what has been observed in the former articles, we may collect, that the quantity of punishment can never be absolutely determined by any standing invariable rule; but it must be left to the arbitration of the legislature to inflict such penalties as are warranted by the laws of nature and society, and such as appear to be the best calculated to answer the end of precaution against future offences.

Hence it will be evident, that what some have so highly extolled for its equity, the lex talionis, or law of retaliation, can never be in all cases an adequate or permanent rule of punishment. In some cases, indeed, it seems to be dictated by natural reason; as in the case of conspiracies to do an injury, or false accusations of the innocent; to which we may add that law of the Jews and Egyptians, mentioned by *Josephus and Diordorus Siculus, that whoever without sufficient cause was found with any mortal poison in his [*13] custody, should himself be obliged to take it. But, in general, the difference of persons, place, time, provocation, or other circumstances, may enhance or mitigate the offence; and in such cases retaliation can never be a proper measure of justice. If a nobleman strikes a peasant, all mankind will see, that if a court of justice awards a return of the blow, it is more than a just compensation. On the other hand, retaliation may, sometimes, be too easy a sentence; as, if a man maliciously should put out the remaining eye of him who had lost one before, it is too slight a punishment for the maimer to lose only one of his : and therefore the law of the Locrians, which demanded an eye for an eye, was in this instance judiciously altered by decreeing, in imitation of Solon's laws, (q) that, he who struck out the eye of a one-eyed man, should lose both his own in

(p) Pro Cluentio, 46.

(g) Pott. Ant. b. 1, c. 26.

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