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The knowledge of this branch of jurisprudence, which teaches the natuce, 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
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, ihe 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, ámbition, 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 occacionally find room to remark some particulars that scem 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 : efter 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 inal tur 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 reserring 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. .vates 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)
(8) Stat. 5 Eliz. c. 20.
(e) See book II. p. 335.
(3) The two Acts inflicting this severe pu- is repealed by 1 Geo. IV. c. 116. pishment are repealed, as far as regards the (5) In the English law, misdemeanor is gebenefit of clergy, hy 4 Geo. IV. c. 54, $ 1 and nerally used in contradistinction to felmy, and 2; and the offender or offenders, Ingether with misdemeanors comprehend all indictable of. their accessaries, are liable, at the discretion fences which do not amount to felony ; as of the court, to be transported or imprisoned. perjury, battery, libels, conspiracies, attempts, And see still more recent enact nents with re. and solicitations to commit felonies. &c. spect to these offences, in 7 and 8 Geo. IV. c. (6) By the Revised Statutes of New.York, 30, 15, 19, and 20. post 232, 234, and 246. “felony," or " infamous crime," when used in
(4) Tbe 5 Eliz.c. 20, which intrinluced this a statute, includes every offence punishable crime and its severe punishment, is repealed with death or imprisonment in a state prison : by the 23 Geo. III c. 51. Also the 1 & 2 Ph. “crime, "or offence," ineludes every offence & M. c. 4, as far as it made it a capital selony punishable criminally. 2 R. S. 702. But by for gypsies to remain one month in England, the amendments to those statutes, the adjac VOL. II.
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  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 hightives " felonious" and " criminal," and the ad. crime wilfully to do an injury to another's per verbe " seloniously"aud "criminally,"are made son or property without making him a satis. synonymous. 3 R. S. App. p. 158.
faction. To destroy another's property wil (7) The distinction between public crimes fully, without making the owner a compensa. and privale injuries seems entirely to be creat- tion, is, in all cases, a worse crime in reason ed by positive laws, and is referable only to than theft; because the individual deprived of civil institutions. Every violation of a moral bis property suffers precisely the saine injury, law, or natural obligation, is an injury, for and the public loses ihe benefit of that proper. which the offender ought to make retribution ty, which contributes to the support of no one; to the individuals who immediately suffer from and he, who does the injury, has not the temp. it; and it is also a crime for which he ought tation of him who steals to supply his wants. to be punished to that extent, which would in the case of those actions which are only deter lioth him and others from a repetition of civil injuries, and to which no legal punishthe offence. In positive laws those acts are ment is annexed, the law has supposed that denominated injuries, for which the legisla- retribution will be sufficient to deter the coin. ture has provided only retribution, or a com- mission of them. But the wilful and malicious pensation in damages: but when from expe. destruction of another's property by fire, in rience it is discovered that this is not sufficient many cases, is punished with death ; so also to restrain within moderate bounds certain is the malicious killing and maiming of anoclasses of injuries, it then becoines necessary ther's cattle : yet these detestable and diabofor the legislative power to raise them into lical acts were not crimes by the common law crimes, and to endeavour to repress thern by of England: but experience discovered the the terror of punishment, or the sword of the necessity of rendering them subject to public public magistrate. The word crime has no and severe punishmeni. Yet to set fire to a iechnical meaning the law of England. It field of ripe standing corn is still only a priseems, when it has a reference to positive law, vate injury, though this is an act which strikes to comprehend those acts which subject the at the very being of society, but the legislature offender to punishment. When the words high have not yet found it necessary to repress it by crimes and misdemeanors are used in prosecu. the terror of penal laws.t. tions by impeachment, the words high crimes The 9 Geo. I. c. 22, relating to killing and have no definite signification, but are used maiming cattle, is repealed by 4 Geo. IV. e. merely to give greater solemnity to the charge. 54, by which the punishment of that offence in When the word crime is used with a reference altered to transportation or imprisor.ment, and lo moral law, it implies every deviation from the necessity of proving malice against che mural rectitude. Hence we say, it is a crime owner is removed. See post 246. lo refuse the payment of a just debt; it is a
+ This has now been done. By 7 and 8 felony, and be liable to be transported !or seren Geo. IV. c. 30, $ 17, "if any person shall un- years, or to be imprisoned not exceeding iwo lawfully and maliciously set fire to any crop of years; and, if a inale, to be once, twice, os corn, grain, or pulse, whether standing or cut ihrice, publicly or privately whipped." town, every such offender shall be guilty of
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 i 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 da. mages 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, thai 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 other property. Any person injured by a felo. party has received in a case of felony is not in ny for which the offender is committed to the general merged or destroyed, but only suspend. state prison, can recover damages in a suit ed until he has performed his duty to society against the trustees of the felon's estale. (Id by an endeavour to bring the offender to jus. 700.) tice : and after the party on whom suspicior (10) See 6 East, 158. was fixed has been convicted or acquitted, (11) The court of Common Pleas will not without collusion, the prosecutor may support compel a party who has proceeded both by inan action for the same cause as that on which dictinent and action for the same assault, to the criminal prosecution was founded. Styles, make his election upon which he will rely 346. 12 East, 409. Rep. T. Hardw.350. 17 Jones v. Clay, i Bos. and Pul. 191 ; and, Ves. 329. No action can be brought, or bill though it was formerly held, that in general, in equity field, in relation to a felony, until if the party moved for a criminal information, the offender has been duly tried for the offence, he must abandon any action, that doctrine id. ibid. ; or that every exertion has been made seems to have been broken in upon by a very to bring him to justice. See further on this recent case in the court of King's Bench, point, ante, 3 hook, 119. note.
Caddy v. Barlow, 1 Man. and Ryl. 275, where (9) in New York, stolen property in the it was held in an action by A. for the inalicious possession of any officer, is to be returned to prosecution by C. of an indictment against A the owner on his paying the expences incurred and B., and that a rule for a criminal informain its reservation, al any time within six tion obtained by A., and made alısolute, was months after the conviction of the offender, or no bar to the action. See also the note to that before se conviction. If not claimed in that case, Id. 278. tine, it is applied to the use of the poor. (2 R. (12) 6 East, 158. See cases of actions, note S. 746 74- f in possession of any other 3 book 200, note. person, of way be claimed the same as any
every breach 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.
11. 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 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 hunan 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 yested in
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 natyre 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 hĻman le
(See Grotius, de j. 6. 6 p. 1. 2, c. 20. Puffen- (*) Gen. iv, 14. dorf. L. of Nat. &N 6.8, 3.
(k) See book I. p. 234