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 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 sustains, and recover a civil satisfaction in damages. 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 [*7] *damage thereby, as laming his horse, breaking his carriage, or the like, the offender may be compelled to make ample satisfaction, as well for the private injury as for the public wrong.

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 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.

II. Punishment of crimes.-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 misbehavior 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. The right to punish.- 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

(h) See Grotius de j. b. & p. 1. 2, c. 20. Puffendorf, L. of Nat. & N. l. 8, c. 8.

1 One reason why a civil suit is not permitted until after the termination of a criminal prosecution is, that if the party injured were first to recover satisfaction in damages, he might not thereafter be disposed to pursue the criminal action. See Cox v. Paxton, 17 Ves. 329; Crosby v. Leng, 12 East, 409; White v. Spettigue, 13 M. & W. 603.

In the United States, where the management and control of prosecutions for offenses against the state are confided to officers chosen or appointed for the purpose, the civil remedy is not

thus postponed. Parties injured by a felony are not permitted to compound with the offender, and to receive a compensation for suppressing a prosecution, or concealing the evidence of the crime; but they may demand and recover compensation for the private injury the crime has inflicted upon them, without awaiting the result of such action as the public prosecutor may see fit to institute. See Plumer v. Smith, 5 N. H. 553; Boston, etc. R. R. Co. v. Dana, 1 Gray, 83, and cases cited. [McClain's Cr. L., § 11.]

of punishing crimes against the laws 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[*8] cution: 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 murderer Cain was so sensible that we find him (2) 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 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 (crimes because forbidden), and not mala in se (wrongs in themselves); 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 non-observance, 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.

Based on consent.-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. Which has *occasioned some [*9] 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 precept delivered to Noah, their common ancestor and representative, "whoso sheddeth man's blood, by man shall his blood be shed." () In other instances they are inflicted after the example of the Creator, in his positive code of laws for the regula

tion 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."

Capital punishment. 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 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 will excuse our attempting to prevent it [*10] by a wanton effusion of human blood. For, though the end of punishment is to deter men from offending, it can never 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 wagons is universally allowed, and many laws have been made to prevent it; none of which have hitherto

(0) Grand instructions for framing a new code of laws for the Russian empire, § 210.

1 See book 2, p. 11 and note.

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 [*11] the 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 extent of their warrant; and not at the doors of the subject who is bound to receive the interpretations that are given by the sovereign power. 2. The object of punishment. As to the end, or final cause of human punishments. This is not by way of atonement or expiation for the crime committed; for that must be left to the just determination of the Supreme Being; but as a precaution against future offences of the same kind. This is effected three ways: either by the amendment of the offender himself; for which purpose all corporal punishment, fines, and temporary exile and imprisonment, are inflicted: or, by deterring others by the dread of his example from offending in the like way "ut pœna (as Tully (p) expresses it) ad paucos, metus ad omnes perveniat" (that few may suffer, but all may dread punishment); which gives rise to all ignominious punishments, and to such executions of justice as are open

and public: *or, lastly, by depriving the party injured of the [*12] power to do future mischief; which is effected by either putting him to death or condemning him to perpetual confinement, slavery, or exile. The same one end, of preventing future crimes, is endeavoured to be answered by each of these three species of punishment. The public gains equal security, whether the offender himself be amended by wholesome correction, or whether he be disabled from doing any further harm: and if the penalty fails of both these effects, as it may do, still the terror of his example remains as a warning to other citizens. The method, however, of inflicting punishment ought always to be proportioned to the particular purpose it is meant to serve, and by no means to exceed it: therefore, the pains of death, and perpetual disability by exile,

(p) Pro Cluentio, 46.

slavery, or imprisonment ought never to be inflicted, but when the offender appears incorrigible: which may be collected either from a repetition of minute offences; or from the perpetration of some one crime of deep malignity, which of itself demonstrates a disposition without hope or probability of amendment; and in such cases it would be cruelty to the public to defer punishment of such a criminal, till he had an opportunity of repeating perhaps the worst of villainies.

3. Degree of punishment.-As to the measure of human punishments. From what has been observed in the former articles, we may collect, that the quantity of punishment can never be absolutely determined by any standing invariable rule; but it must be left to the arbitration of the legislature to inflict such penalties as are warranted by the laws of nature and society, and such as appear to be the best calculated to answer the end of precaution against future offences.1

Hence it will be evident, that what some have so highly extolled for its equity, the lex talionis, or law of retaliation, can never be in all cases an adequate or permanent rule of punishment. In some cases, indeed, it seems to be dictated by natural reason; as in the case of conspiracies to do an injury, or false accusations of the innocent; to which we may add that law of the Jews and Egyptians, mentioned by *Josephus and Diodorus Siculus, that whoever without sufficient cause was found with any mortal poison in [*13] his custody, should himself be obliged to take. But, in general, the difference of persons, place, time, provocation, or other circumstances, may enhance or mitigate the offence; and in such cases retaliation can never be a proper measure of justice. If a nobleman strikes a peasant, all mankind will see, that if a court of justice awards a return of the blow, it is more than a just compensation. On the other hand, retaliation may, sometimes, be too easy a sentence; as, if a man maliciously should put out the remaining eye of him who had lost one before, it is too slight a punishment for the maimer to lose only one of his: and therefore the law of the Locrians, which demanded an eye for an eye, was in this instance judiciously altered by decreeing, in imitation of Solon's laws, (4) that, he who struck out the eye of a one-eyed man, should lose both his own in return. Besides, there are very many crimes, that will in no shape admit of these penalties, without manifest absurdity and wickedness. Theft cannot be punished with theft, defamation by defamation, forgery by forgery, adultery by adultery, and the like. And we may add, that those instances, wherein retaliation appears to be used, even by the divine authority, do not really proceed upon the rule of exact retribution, by doing to the criminal the same hurt he has done to his neighbour and no more; but this correspondence between the crime and punishment is barely a consequence from some other principle. Death is ordered to be punished with death; not because one is equivalent to the other,

(q) Pott. Ant. b. 1, c. 26.

1 [Punishment should be measured by the nature of the crime. 2 Wilson's Works (1896), 344.]