The knowledge of this branch of jurisprudence, which teaches the nature, extent, and degrees of every crime, and adjusts to it its adequate and necessary penalty, is of the utmost importance to every individual in the state. For (as a very great master of the crown law (c) has observed upon a similar occasion) no rank or elevation in life, no uprightness of heart, no prudence or circumspection of conduct, should tempt a man to conclude, that he may not at some time or other be deeply interested in these researches. The infirmities of the best among us, the vices, and ungovernable passions of others, the instability of all human affairs, and the numberless unforeseen events, which the compass of a day may bring forth, will teach us (upon a moment's reflection) that to know with precision what the laws of our country have forbidden, and the deplorable consequences to which a wilful disobedience may expose us, is a matter of universal concern.

In proportion to the importance of the criminal law ought also to be the care and attention of the legislature in properly forming and enforcing

it. It should be founded upon principles that are permanent, uni*3] form, and universal; and always conformable to the dictates of

truth and justice, the feelings of humanity, and the indelible rights of mankind: though it sometimes (provided there be no transgression of these external boundaries) may be modified, narrowed, or enlarged, according to the local or occasional necessities of the state which it is meant to govern. And yet, either from a want of attention to these principles in the first concoction of the laws, and adopting in their stead the impetuous dictates of avarice, ambition, and revenge; from retaining the discordant political regulations, which successive conquerors or factions have established, in the various revolutions of government; from giving a lasting efficacy to sanctions that were intended to be temporary, and made (as lord Bacon expresses it) merely upon the spur of the occasion; or from, lastly, too hastily employing such means as are greatly disproportionate to their end, in order to check the progress of some very prevalent offence: from some, or from all, of these causes, it hath happened, that the crimi nal law is in every country of Europe more rude and imperfect than the civil. I shall not here enter into any minute inquiries concerning the local constitutions of other nations: the inhumanity and mistaken policy of which have been sufficiently pointed out by ingenious writers of their own (d). But even with us in England, where our crown law is with justice supposed to be more nearly advanced to perfection; where crimes

are more accurately defined, and penalties less uncertain and [*4] arbitrary; where all our accusations are public (2), and our *trials

in the face of the world; where torture is unknown, and every delinquent is judged by such of his equals, against whom he can form no exception nor even a personal dislike-even here we shall occasionally find room to remark some particulars that seem to want revision and amendment. These have chiefly arisen from too scrupulous an adherence to some rules of the ancient common law, when the reasons have ceased upon which those rules were founded; from not repealing such of the old penal laws as are either obsolete or absurd; and from too little care and (c) Sir Michael Foster, prer. to rep.

(d) Baron Montesquieu, marquis Beccaria, &c

(2) Some of the proceedings prior to an indictment must be, others may be, private: after that period they are public.

attention in framing and passing new ones. The enacting of penalties to which a whole nation should be subject, ought not to be left as a inat ter of indifference to the passions or interests of a few, who upon temporary motives may prefer or support such a bill; but be calmly and maturely considered by persons who know what provisions the laws have already made to remedy the mischief complained of, who can from experience foresee the probable consequences of those which are now proposed, and who will judge without passion or prejudice how adequate they are to the evil. It is never usual in the house of peers even to read a private bill, which may affect the property of an individual without first referring it to some of the learned judges, and hearing their report thereon (e). And surely equal precaution is necessary, when laws are to be established, which may affect the property, the liberty, and perhaps even the lives of thousands. Had such a reference taken place, it is impossible that in the eighteenth century it could ever have been made a capital crime, to break down (however maliciously) the mound of a fishpond, whereby any fish shall escape; or to cut down a cherry-tree in an orchard (f) (3). Were even a committee appointed but once in an hundred years to revise the criminal law, it could not have continued to this hour a felony, without benefit of clergy, to be seen for one month in the company of persons who call themselves, or are called, Egyptians (g) (4).

It is true, that these outrageous penalties, being seldom or never inflicted, are hardly known to be law by the public: "but that ra- [*5] ther agg.avates the mischief, by laying a snare for the unwary. Yet they cannot but occur to 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. 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 names of "misdemeanors" only (5), (6)

(e) See book II. p. 335.

(f) Stat. 9 Geo. 1. c. 22. 31 Geo. II. c. 42.

(3) The two Acts inflicting this severe puBishment are repealed, as far as regards the benefit of clergy, by 4 Geo. IV. c. 54, § 1 and 2; and the offender or offenders, together with their accessaries, are liable, at the discretion of the court, to be transported or imprisoned. And see still more recent enactments with respect to these offences, in 7 and 8 Geo. IV. c. 30, 15, 19, and 20. post 232, 234, and 246.

(4) The 5 Eliz. c. 20, which introduced this crime and its severe punishment, is repealed by the 23 Geo. III c. 51. Also the 1 & 2 Ph. & M. c. 4, as far as it made it a capital felony for gypsies to remain one month in England, VOL. II.

50

(g) Stat. 5 Eliz. c. 20.

is repealed by 1 Geo. IV. c. 116.

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

(6) By the Revised Statutes of New-York, "felony," or " infamous crime," when used in a statute, includes every offence punishable with death or imprisonment in a state prison: "crime, "or" offence," includes every offence punishable criminally. 2 R. S. 702. But by the amendments to those statutes, the adjoe

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, be sides 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 (7).

In all cases the crime includes an injury; every public offence is also a private wrong, and somewhat more; it affects the individual, and [6] it likewise affects the 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 high

tives "felonious" and "criminal,” and the adverba "feloniously" and "criminally," are made synonymous. 3 R. S. App. p. 158.

(7) 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 make 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 repetition 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 necessary for the legislative power to raise them into crimes, and to endeavour 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

This has now been done. By 7 and 8 Geo. IV. c. 30, § 17, "if any person shall unlawfully and maliciously set fire to any crop of corn, grain, or pulse, whether standing or cut town, every such offender shall be guilty of

crime wilfully to do an injury to another's per son or property without making him a satis faction. To destroy another's property wil fully, 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 proper. ty, 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 coinmission of them. But the wilful and malicious destruction of another's property by fire, in many cases, is punished with death; so also is the malicious killing and maiming of another's cattle: yet these detestable and diabolical acts were not crimes by the common law of England: but experience discovered the necessity of rendering them subject to public and severe punishment. Yet to set fire to a field of ripe standing corn is still only a private injury, though this is an act which strikes at the very being of society, but the legislature have not yet found it necessary to repress it by the terror of penal laws.t

The 9 Geo. I. c. 22, relating to killing and maiming cattle, is repealed by 4 Geo. IV. e. 54, by which the punishment of that offence is altered to transportation or imprisonment, and the necessity of proving malice against the owner is removed. See post 246.

felony, and be liable to be transported for seven years, or to be imprisoned not exceeding two years; and, if a male, to be once, twice, or thrice, publicly or privately whipped."

est 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 prevention 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 soldom 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 (8), (9). 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 (10); and herein the distinction 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 by 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 (11). 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 all his majesty's subjects; but if any individual sustains any special damage thereby, as laming his horse, breaking his [ 7 ] carriage, or the like, the offender may be compelled to make ample satisfaction, as well for the private injury as for the public wrong (12). Upon the whole we may observe, that in taking cognizance of all wrongs, or 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

(8) The civil right to sue for the injury the party has received in a case of felony is not in general merged or destroyed, but only suspended until he has performed his duty to society by an endeavour to bring the offender to jus tice and after the party on whom suspicior 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 field, in relation to a felony, until the offender has been duly tried for the offence, id. ibid.; or that every exertion has been made to bring him to justice. See further on this point, ante, 3 book. 119. note.

(9) In New-York, stolen property in the possession of any officer, is to be returned to the owner on his paying the expences incurred in its preservation, at any time within six months after the conviction of the offender, or before such conviction. If not claimed in that tine, it is applied to the use of the poor. (2 R. S. 746 74 if in possession of any other person, it may be claimed the same as any

other property. Any person injured by a felo ny for which the offender is committed to the state prison, can recover damages in a suit against the trustees of the felon's estate. (Id 700.)

(10) See 6 East, 158.

(11) The court of Common Pleas will not compel a party who has proceeded both by indictment and action for the same assault, to make his election upon which he will rely Jones v. Clay, 1 Bos. and Pul. 191; and, though it was formerly held, that in general, if the party moved for a criminal information, he must abandon any action, that doctrine seems to have been broken in upon by a very recent case in the court of King's Bench, Caddy v. Barlow, 1 Man. and Ryl. 275, where it was held in an action by A. for the malicious prosecution by C. of an indictment against A and B., and that a rule for a criminal informa tion obtained by A., and made absolute, was no bar to the action. See also the note to that case, Id. 278.

(12) 6 East, 158. See cases of actions, note 3 book 200, note.

every beach and violation of those laws, which the sovereign power has thought proper to establish for the government and tranquillity 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 hich are evils or inconveniences consequent upon crimes and 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.

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 law 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 exe

cution and if that power is vested in any one, it must also be [ *8] 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 of fended, 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 nonobservance, 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 [ 9 ] Which has occasioned some to doubt, how far a human le (h) See Grotius, de j. b. & p. 1. 2, c. 20. Puffendorf. L. of Nat. & N b. 8, c 3.

() Gen. iv. 14.

(k) See book I. p. 254