COMMENTARIES ON THE LAWS OF ENGLAND. BOOK THE FOURTH. OF PUBLIC WRONGS (1). CHAPTER I. OF THE NATURE OF CRIMES, AND THEIR PUNISHMENT. We are now arrived at the fourth and last branch of these Commentaries; which treats of public wrongs, or crimes and misdemesnors. For we may remember that, in the beginning of the preceding book (u), wrongs were divided into two species : the one private and the other public. Private wrongs, which are frequently termed civil injuries, were the subject of that entire book: we are now therefore, lastly, to proceed to the consideration of public wrongs, or crimes and misdemesnors; with the means of their prevention and punishment. In the pursuit of which subject I shall consider, in the first place, the general nature of crimes and punishments; secondly, the persons capable of committing crimes; thirdly, their several degrees of guilt, as principals, or accessaries; *fourthly, [*2 ] the several species of crimes, with the punishment annexed to each by the laws of England ; fifthly, the means of preventing their perpetration; and, sixthly, the method of inflicting those punishments, which the law has annexed to each several crime and misdemesnor. First, as to the general nature of crimes and their punishment; the discussion and admeasurement of which forms in every country the code of criminal law; or, as it is more usually denominated with us in England, the doctrine of the pleas of the crown ; so called, because the king, in whom centers the majesty of the whole community, is supposed by the law to be the person injured by every infraction of the public rights, belonging to that community, and is therefore in all cases the proper prosecutor for every public offence (b). (6) See book I. p. 268. (a) Book III. ch. 1. (1) See in general, Staundford Pl. Cr.; L.; and the proper titles in Vin. Ab., Com. 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 criminal 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, pref. 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. a 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 matter 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 aggravates 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). : (g) 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. nishment 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 felony, and 2; and the offender or offenders, together with misdemeanors comprehend all indictable of. their accessaries, are liable, at the discretion fences which do not amount to selony; as of the court, to be transported or imprisoned. perjury, battery, libels, conspiracies, attempts, And see still more recent enactments 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) The 5 Eliz.c. 20, which introduced 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," includes every offence & M. c. 4, as far as it made it a capital felony punishable criminally. 2 R. S. 702. But by for gypsies to remain one month in England, the amendments to those statutes, the adjeća VOL. II. 50 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 (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 aflects the community. *Thus treason in imagining the kiny'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 lives " selonious" and "criminal," and the ad- crime wilfully to do an injury to another's perverbs “ feloniously” and “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 compensaand private injuries seems entirely to be creat. tion, is, in all cases, a worse crime in reason ed by positive laws, and is referable only 10 than theft; because the individual deprived of civil institutions. Every violation of a moral his property suffers precisely the saine injury, law, or natural obligation, is an injury, for and the public loses the benefit of that properwhich the offender ought to make retribution ty, which contributes to the support of no one; to the individuals who iminediately suffer from and he, who does the injury, has not the tempit; and it is also a crime for which he ought tation of him who stcals to supply his wants. to be punished to that extent, which would In the case of those actions which are only deter both 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. reiribution will be sufficient to deter the comture 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 ano. classes of injuries, it then becomes necessary ther's calile : yet these detestable and diabo. for the legislative power to raise them into lical acts were not crimes by the common law crimes, and to endeavour to repress them 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 io set fire to a technical meaning in the law of England. It field of ripe standing corn is still only a pri. seems, 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 toigh 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. c. merely to give greater solemnity to the charge. 54, by which the punishment of that offence is When the word crime is used u ith a reference altered to transportation or imprisonment, and to moral law, it implies every deviation from the necessity of proving malice against the moral rectitude. Hence we say, it is a crime owner is removed. See post 246. to 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 for seven Geo. IV. c. 30, $ 17, " if any person shall un- years, or to be imprisoned not exceeding two lawfully and maliciously set fire to any crop of years; and, if a male, to be once, twice, or corn, grain, or pulse, whether standing or cut ihrice, publicly or privately whipped." down, every such offender shall be guilty of |
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