perty 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. (ƒ) 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) 2

It is true, that these outrageous penalties, being seldom or never in. flicted, are hardly known to be law by the public: but that rather aggravates the mischief, by laying a snare for the unwary. Yet [5] 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 misdemesnor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemesnors; 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 "misdemesnors" only.3

The distinction of public wrongs from private, of crimes and misdemesnors 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 misdemesnors, 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.1

e See Book II. p. 335.

f Stat. 9 Geo. I. c. 22. 31 Geo. II. c. 42. g Stat. 5 Eliz. c. 20.

(2) 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, is repealed by 1 Geo. IV. c. 116.

(3) 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.

Christian.

(4) 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 natu

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

al, 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 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 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 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. 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 instance; in the case of battery, or beating another, the aggressor may be indicted for

ral obligation, is an injury, for which the offender ought to make retribution to the individuals who iminediately 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 misde mesnors 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 a 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. 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.-Mr. Christian's note.

(5) 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 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, 400. 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. ibid. ; or that every exertion has been made to bring him to justice. See further on this point, ante, 3 Book, 119. note. Chilly.

(6) See 6 East, 158.

this at the suit of the king, for disturbing the public peace, and be punish. ed 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 nusance, 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 carriage, or the like, [7] the offender may be compelled to make ample satisfaction, as well for the private injury as for the public wrong.

8

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. those breaches are, and how prevented or punished, are to be considered in the present book.

What

II. The nature of crimes and misdemesnors, 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 consesequent upon crimes and misdemesnors; 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 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 misdemesnors. (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 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 mur- [8] derer 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 h See Grotius, de j. b. & p. l. 2. c. 20. Puffendorf. L. of Nat. & N. b. 8. c. 3.

i Gen. iv. 14.

(7) And in case of an indictment and action for an assault, the court will not compel the prosccutor to make his election, 2 B. & P. 191.; though in general, on moving for a criminal information, the party must relinquish any action for the same cause. 2 Burr. 719. 836. 2 T. R. 198. Tidd, 8 ed. 8. n. h.

(8) 6 East, 158. See cases of actions, ante, 3 Book, 220. note.

(9) It will appear from the following notes to this edition, that very important improvements in the degrees and modes of punishment have been enacted within a few years; and that by the excellent prison regulations, established by 4 Geo. IV. c. 64. (which repeals the foriner acts) amended by 5 Geo. IV. cc. 12 & 85., facilities for the comfort, as well as amelioration of the morals of offenders, are judiciously provided.

VOL. II.

49

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 con. sent 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-observ. ance, 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 legislature

ought to inflict capital 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 precepts delivered to Noah, their common ancestor and representative, "whoso sheddeth man's blood, by man shall his blood be shed." (1) 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 of property, which, as we have formerly seen, (m) owes its origin not to the law of nature, but merely to civil society.10

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

k See Book I. p. 254.

1 Gen. ix. 6.

m Book II. c. 1.

n 1 Hal. P. C. 13.

(10) 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, (2 Book, 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 quam detractio aut appetitio alieni."-Cic. Thou shalt not steal, is certainly one of the first precepts both of nature and religion,-Mr. Christian's note.

"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. It is not its frequency only, or the difficulty of otherwise preventing it, that [10] 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 never can 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. (o) 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 waggons 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 [ 11 ] blood of our fellow-creature is 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 collected 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, 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 ex

• Grand Instructions for framing a new code of laws for the Russian empire, § 210.