lic offense is In all cases the crime includes an injury; every public of Every pubfense is also a private wrong, and somewhat more; it affects also a prithe individual, and it likewise affects the community. Thus vate wrong treason in imagining the king's death involves in it conspiracy [6] 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 offense. 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 injuries, for which the legislature has all cases, a worse crime in reason than provided only retribution, or a com- theft; because the individual deprived pensation in damages; but when from of his property suffers precisely the experience it is discovered that this is same injury, and the public loses the not sufficient to restrain within moderate benefit of that property, which conbounds certain classes of injuries, it then tributes to the support of no one; and becomes necessary for the legislative he who does the injury has not the power to raise them into crimes, and to temptation of him who steals to supply endeavor to repress them by the terror his wants. In the case of those actions of punishment, or the sword of the public which are only civil injuries, and to magistrate. The word "crime" has no which no legal punishment is annexed, technical meaning in the law of England. the law has supposed that retribution It seems, when it has a reference to will be sufficient to deter the commispositive law, to comprehend those acts sion of them. But the willful and maliwhich subject the offender to punish- cious destruction of another's property ment. When the words high crimes and by fire, in [some] cases, is punished misdemeanors are used in prosecutions with death; so also is the malicious killby impeachment, the words high crimes ing and maiming of another's cattle;* have no definite signification, but are yet these detestable and diabolical acts used merely to give greater solemnity were not crimes by the common law of to the charge. When the word crime England; but experience discovered the is used with reference to moral law, it necessity of rendering them subject to implies every deviation from moral rec- public and severe punishment. Yet to titude. Hence we say, it is a crime to set fire to a field of ripe standing corn is refuse the payment of a just debt; it is still only a private injury, though this a crime willfully to do an injury to an- is an act which strikes at the very being other's person or property without of society, but the legislature have not making him a satisfaction. To destroy yet found it necessary to repress it by another's property willfully, without the terror of penal laws.-[CHRISTIAN.] making the owner a compensation, is, in *Now only with transportation for a term not exceeding fifteen nor less than ten years, or imprisonment for a term not exceeding three years; 7 Will. IV. & 1 Vict., c. 90, s. 2. † But see now the stats. 7 & 8 Geo. IV., c. 30, s. 17, whereby this act is property, it is impossible afterward 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 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 offense 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, 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 [7] 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. II. Nature of punishments in general. II. 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 (5) The civil right to sue for the in- exertion has been made to bring him to jury the party has received in a case of justice. See, further, on this point, ante felony is not, in general, merged or de- vol. iii., 119, note. [CHITTY.] stroyed, but only suspended until he has performed his duty to society, by an en- (6) And in case of an indictment and deavor to bring the offender to justice; action for an assault, the court will not and after the party on whom suspicion compel the prosecutor to make his elecwas fixed has been convicted or ac- tion, 2 Bos. & P., 191; though in general, quitted, without collusion, the prose- on moving for a criminal information, cutor may support an action for the same the party must relinquish any action for cause as that on which the criminal the same cause. 2 Burr., 719, 836; 2 T. prosecution was founded. Styles, 346; 12 East, 409; Rep. Temp., 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 offense, id. ibid.; or every R., 198; Tidd, 8 ed., 8, n. h.—[CHITTY.] The court will not, however, pass judgment for an assault during the pendency of an action for the same assault. 4 Adol. & Ell., 575. 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. As to the power of human punishment, or the right of the temporal legislator to inflict discretionary penalties for crimes and misdemeanors. 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 [ 8 ] be vested in all mankind, since all are by nature equal. Whereof the first murderer, Cain, was so sensible, that we find himi 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 offenses 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 embassadors, 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 offenses 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 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 nonobservance, severities adequate to the evil. The lawfulness, therefore, of punishing such criminals is founded upon this prin h See Grotius, De J. B. & P., l. 2, c. 20; Puffendorf, L. of Nat. and N., b. 8, c. 3. (7) It will appear from the following notes to this edition, that very important improvements in the degrees and modes of punishment have been enacted of late years; and by the prison regulations, established by 4 Geo. IV., c. 64 (which i Gen., iv., 14. k See vol. i., p. 254. repeals the former acts), amended by 5. ciple, 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 [9] over himself or others. Which has occasioned some to doubt how far a human legislature ought to inflict capital punishments for positive offenses, offenses 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 offenses 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 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 offenses of a lighter kind. Of these we are principally to speak; as these crimes are, none of them, offenses 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." The practice of inflicting capital punishments for offenses of human institution is thus justified by that great and good man, Sir Matthew Hale: "When offenses 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 [10] otherwise preventing it, that will excuse our attemping 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 of fenses, 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 further 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 Catharine 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. 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 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 provisions 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 [11 ] such a law to the dictates of conscience and humanity. To shed 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. • Grand Instructions for framing a new Code of Laws for the Russian Empire, 210.-[A new penal code, founded on the Code Penal of France, was com pleted in 1832, under the direction of |