1

COMMENTARIES

ON

THE LAWS OF ENGLAND.

BOOK THE FOURTH.

OF PUBLIC WRONGS.

CHAPTER I.

OF THE NATURE OF CRIMES, AND THEIR PUNISHMENT.

wrongs and

We are now arrived at the fourth and last branch of these Public Commentaries, which treats of public wrongs, or crimes and punishmisdemeanors. For we may remember that, in the beginning ments. of the preceding volume,a 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 misdemeanors; with the means of their prevention and punishment. In Division of the subject. 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 accessories; fourthly, the several species of crimes, with the punishment annexed to each by the laws of England; fifthly, the means of preventing their [2] perpetration; and, sixthly, the method of inflicting those punishments which the law has annexed to each several crime and misdemeanor.

eral nature

ment.

First, as to the general nature of crimes and their punish- First, genment; the discussion and admeasurement of which form in of crimes every country the code of criminal law; or, as it is more and punish. 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

VOL. IV.-A

a Book iii., ch. 1.

1

Importance of knowl

of.

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 offense.b

The knowledge of this branch of jurisprudence, which teachedge there- es 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 lawe 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 willful disobedience may expose us, is a matter of universal concern.

Especially to the legis lature.

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, uniform, 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 trangression of these eternal [3] 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 offense; 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. But even with us in England, where our crown law is with justice supposed to be more nearly advanced to perfecb See vol. i., p. 268. Baron Montesquieu, Marquis Beccaria, &c.

e Sir Michael Foster, Pref. to Rep.

tion; where crimes are more accurately defined, and penalties ess uncertain and arbitrary; where all our accusations are public, 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 attention in framing and passing new ones. The enacting of penalties, to which a whole nation shall 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 [ 4 ] 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. 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 fish-pond, whereby any fish shall escape; or to cut down a cherry-tree in an orchard.f Were even a committee appointed but once in a 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, Egyp

tians.g

It is true that these outrageous penalties, being seldom or never inflicted, are hardly known to be law by the public; but that rather aggravates the mischief, by laying a snare for the [ 5 ]

c. 42.

See vol. ii., p. 335.

Stat. 9 Geo. I., c. 22; 31 Geo. II.,

Stat. 5 Eliz., c. 20.

(2) The

(1) But see now the stat. 7 & 8 Geo. Eliz., c. 20, which introIV., c. 29, s. 38, 39, and c. 30, s. 15, 19, duced this crime and its severe punishand 20, whereby offenses of this nature ment, was repealed by the 23 Geo. III., are subjected to punishments not exceed- c. 51. And the 1 & 2 Ph. & M., c. 4, as ing (in any case) transportation for seven far as it made it a capital felony for gipyears, or imprisonment for a term not sies to remain one month in England, is exceeding two years. repealed by 1 G. IV., c. 116.-[CHITTY.]

I. Nature of crimes and

eral.

unwary. Yet they can not 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 savor 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, misdemean in violation of a public law, either forbidding or commanding ors in gen 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 offenses as are of a deeper and more atrocious dye; while smaller faults, and omissions of less consequence, are comprised under the gentler name of "misdemeanors" only."

Distinction between

private wrongs.

The distinction of public wrongs from private, of crimes and public 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 can not possibly subsist where actions of this sort are suffered to escape with impunity.*

(3) In the English law, misdemeanor tirely to be created by positive laws, is generally used in contradistinction to felony, and misdemeanors comprehend all indictable offenses which do not amount to felony; as perjury, battery, libels, conspiracies, attempts and solicitations to commit felonies, &c.-[CHRISTIAN.]*

and is referable only to civil institutions. Every violation of a moral law, or natural obligation, is an injury, for which the offender ought to make retribution to the individuals who immediately 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 (4) The distinction between public from a repetition of the offense. In crimes and private injuries seems en- positive laws those acts are denominated

* In New York, a misdemeanor is an offense against the public, punishable by fine and imprisonment in a county jail, and in this respect is distinguished from a felony or infamous crime, which subjects the perpetrator to the punishment of death or imprisonment in a state prison. Crime and misdemeanor, in other respects, are synonymous.