the court. This report may be excepted to, disproved, and overruled; or otherwise is confirmed, and made absolute, by order of the court.

When all issues are tried and settled, and all references to the master ended, the cause is again brought to hearing upon the matters of equity reserved, and a final decree is made; the performance of which is enforced (if necessary) by commitment of the person, or sequestration of the party's estate. And if by this decree either party thinks himself aggrieved he may petition the chancellor for a rehearing; whether it was heard before his lordship, or any of the judges sitting for him, or before the master of the rolls. For, whoever may have heard the cause, it is the chancellor's decree, and must be signed by him before it is enrolled; which is done of course unless a rehearing be desired. Every petition for a rehearing must be signed by two counsel of character, usually such as have been concerned in the cause, certifying that they apprehend the cause is proper to be reheard. And upon the rehearing, all the evidence taken in the cause, whether read before or not, is now admitted to be read: because it is the decree of the chancellor himself, who only now sits to hear reasons why it should not be enrolled and perfected; at which time all omissions of either evidence or argument may be supplied. But, after the decree is once signed and enrolled, it cannot be reheard or rectified but by bill of review, or by appeal to the house of lords.

A bill of review may be had upon apparent error in judgment appearing on the face of the decree; or by special leave of the court, upon oath made of the discovery of new matter or evidence, which could not possibly be had or used at the time when the decree passed. But no new evidence or matter then in the knowledge of the parties, and which might have been used before, shall be a sufficient ground for a bill of review.

An appeal to parliament, that is, to the house of lords, is the dernier resort of the subject who thinks himself aggrieved by an interlocutory order or final determination in this court; and it is effected by petition to the house of peers, and not by writ of error, as upon judgments at common law. But no new evidence is admitted in the house of lords upon any account; this being a distinct jurisdiction: which differs it very considerably from those instances, wherein the same jurisdiction revises and corects its own acts, as in rehearings and bills of review. For it is a practice unknown to our law (though constantly followed in the spiritual courts) when a superior court is reviewing the sentence of an inferior, to examine the justice of the former decree by evidence. that was never produced below. And thus much for the general method of proceeding in the courts of equity.

THE END OF THE THIRD BOOK.

BOOK THE FOURTH.
OF PUBLIC WRONGS.

Chapter I.

OF THE NATURE OF CRIMES, AND THEIR PUNISH

MENT.
I-20.

Definition of Crime.

I. A crime or misdemeanour is an act committed or omitted, in violation of a public law either forbidding or commanding it. This general definition comprehends both crimes and misdemeanours, which, properly speaking, are mere synonymous terms; though, in common usage, the word "crime" 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 "misdemeanours" only.

Distinction Between Public and Private Wrongs.

The distinction of public wrongs from private, of crimes and misdemeanours 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 misdemeanours, are a breach and violation of the public rights and duties due the whole community, considered as a community, in its social aggregate capacity.

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. In 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 wrongs, which can only be had from the body or goods of the aggressor. 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 distinction of crimes from civil injuries is very apparent. For in

stance: 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 sustained, and recover a civil satisfaction in damages.

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 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.

Here follows a discussion as to the power, end and measure of human punishment, the principal points being as follows: The right of punishing crimes against the law of nature is, in a state of mere nature, vested in every individual. In a state of society, this right is transferred by the individual to the sovereign power. As to offences merely against the laws of society, which are only mala prohibita, the magistrate may also inflict coercive penalties, and this by consent of individuals, who in forming society, tacitly consented thereto.

The end of punishment is not by way of atonement or expiation, but as a precaution against future offences, either by the amendment of the offender himself, or by deterring others by dread of the example or by depriving the person of the power to do further mischief. The method should be proportioned to the purpose, and not exceed it. As to the measure of punishment, regard must be had to the object of it, to the fact that violence of passion, or temptation may alleviate a crime; that crimes the most destructive of public safety should be most severely punished; and as to crimes of equal malignity, those which a man has most frequent and easy opportunities of committing and the strongest inducements to commit should be punished the most severely.

Punishments of unreasonable severity have less effect in preventing crime than such as are more merciful or properly intermixed with due distinctions of severity.

Chapter II.

OF THE PERSONS CAPABLE OF COMMITTING

CRIMES.
20-34.

Persons Incapable-The Will and the Act.

The general rule is, that no person shall be excused from punishment for disobedience to the laws of his country, excepting such as are expressly defined and exempted by the laws themselves.

All the several pleas and excuses which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto may be reduced to this single consideration, the want or defect of will. To constitute a crime against human laws there must be first, a vicious will; and secondly an unlawful act consequent upon such vicious will.

Three Cases of Will and Act Not Joining.

Now, there are three cases in which the will does not join with the act: I. Where there is a defect of understanding. 2. Where there is understanding and will sufficient residing in the party, but not called forth or exerted at the time of the action done; which is the case of all offences committed by chance or ignorance. 3. Where the action is constrained by some outward force and violence.

Infancy.

I. First we will consider the case of infancy, or nonage, which is a defect of the understanding. Infants under the age of discretion ought not to be punished by any criminal prosecution whatever. What the age of discretion is, in various nations, is matter of some variety.

The law of England does in some cases privilege an infant under the age of twenty-one, as to common misdemeanours, so as to escape fine, imprisonment, and the like: and particularly in cases of omission, as not repairing a bridge, or a highway, and other similar offences; for not having the command of his fortune till twenty-one, he wants the capacity to do those things which the law requires. But where there is any notorious breach of the peace, a riot, battery, or the like (which infants, when full grown, are at least as liable as others to commit), for these an infant above the age of fourteen is equally liable to suffer as a person of the full age of twenty-one.

With regard to capital crimes, the law is still more minute and circumspect; distinguishing with greater nicety the several degrees of age and discretion. By the law, as it now stands, and has stood at least ever since the time of Edward the Third, the capacity of doing ill, or contracting guilt, is not so much measured by years and days as by the strength of the delinquent's understanding and judgment. For one lad of eleven years old may have as much cunning as another of fourteen; and in these cases our maxim is, that "malitia supplet aetatem." Under seven years of age, indeed, an infant cannot be guilty of felony, for then a felonious discretion is almost an impossibility in nature; but at eight years old he may be guilty of felony. Also, under fourteen, though an infant shall be prima facie adjudged to be doli incapax, yet if it appear to the