CHAPTER THE FIRST.

OF THE NATURE OF CRIMES; AND THEIR PUNISHMENT.

E are now arrived at the fourth and last branch of these commentaries; which treats of public wrongs, or crimes and misdemefnors. For we may remember that, in the beginning of the preceding volume, wrongs were divided into two forts or fpecies; 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, laftly, to proceed to the confideration of public wrongs, or crimes and mifdemefnors; with the means of their prevention and punishment. In the purfuit of which fubject I fhall confider, in the firft place, the general nature of crimes and punishments; fecondly, the perfons capable of committing crimes; thirdly, their several degrees of guilt,

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as principals or acceffories; fourthly, the feveral species of crimes, with the punishment annexed to each by the laws of England; fifthly, the means of preventing their perpetration; and, fixthly, the method of inflicting those punishments, which the law has annexed to each several crime and mifdemefnor.

FIRST, as to the general nature of crimes and their punishment: the difcuffion and admeasurement of which forms in every country the code of criminal law; or, as it is more ufually denominated with us in England, the doctrine of the pleas of the crown: fo called, because the king, in whom centers the majesty of the whole community, is fuppofed by the law to be the person injured by every infraction of the public rights belonging to that community, and is therefore in all cafes the proper prosecutor for every public offence'.

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THE knowlege of this branch of jurifprudence, which teaches the nature, extent, and degrees of every crime, and adjusts to it it's adequate and neceffary penalty, is of the utmost importance to every individual in the state. For (as a very great master of the crown law has observed upon a similar occafion) no rank or elevation in life, no uprightness of heart, no prudence or circumfpection of conduct, fhould tempt a man to conclude, that he may not at fome time or other be deeply interested in these researches. The infirmities of the best among us, the vices and ungovernable paffions 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 confequences to which a wilful disobedience may expofe us, is a matter of univerfal concern.

IN proportion to the importance of the criminal law, ought alfo to be the care and attention of the legislature in properly Sir Michael Fofter. pref. to rep.

↳ See Vol. I. p. 268.

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forming and enforcing it. It should be founded upon principles that are permanent, uniform, and univerfal; and always conformable to the dictates of truth and juftice, the feelings of humanity, and the indelible rights of mankind: though it fometimes (provided there be no tranfgreffion of thefe eternal boundaries) may be modified, narrowed, or enlarged, according to the local or occafional neceffities 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 fucceffive 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 expreffes it) merely upon the spur of the occafion; or from, laftly, too haftily employing such means as are greatly difproportionate to their end, in order to check the progress of fome very prevalent offence; from fome, or from all, of these caufes 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 enquiries 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 perfection; where crimes are more accurately defined, and penalties less uncertain and arbitrary; where all our accufations are public, and our trials in the face of the world; where torture is unknown, and every delinquent is judged by fuch of his equals, against whom he can form no exception nor even a personal dislike; --- even here we shall occafionally find room to remark fome particulars, that feem to want revifion and amendment. These have chiefly arisen from too fcrupulous an adherence to fome rules of the antient common law, when the reasons have ceased upon which those rules were founded; from not repealBaron Montefquieu, marquis Beccaria, &c.

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ing fuch of the old penal laws as are either obsolete or absurd; and from too little care and attention in framing and paffing new ones. The enacting of penalties, to which a whole nation fhall be fubject, ought not to be left as a matter of indifference to the paffions or interefts of a few, who upon temporary momay prefer or fupport fuch a bill; but be calmly and maturely confidered by persons, who know what provisions the law has already made to remedy the mischief complained of, who can from experience foresee the probable confequences of those. which are now propofed, and who will judge without paffion or prejudice how adequate they are to the evil. It is never ufual 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 furely equal precaution is neceffary, when laws are to be established, which may affect the property, the liberty, and perhaps even the lives, of thoufands. Had fuch a reference taken place, it is impoffible 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 fifh fhall efcape; or to cut down a cherry tree in an orchard. 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 feen for one month in the company of perfons who call themselves, or are called, Egyptians.

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 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

Stat. 5 Eliz. c. 20.

See Vol. II. p. 345

f Stat. 9 Geo. I. c. 22. 31 Geo. II. c. 42.

decency to those, whose abilities and ftations enable them to apply the remedy. Having therefore premised this apology for some of the ensuing remarks, which might otherwise feem to favour of arrogance, I proceed now to confider (in the first place) the general nature of crimes.

I. A CRIME, or mifdemefnor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemefnors; which, properly speaking, are mere fynonymous terms: though, in common usage, the word, “crimes,” is made to denote fuch offences as are of a deeper and more atrocious dye; while smaller faults, and omiffions of less confequence, are comprized under the gentler name of "mifde"mefnors" only.

THE distinction of public wrongs from private, of crimes. and misdemefnors from civil injuries, feems principally to confift in this: that private wrongs, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, confidered merely as individuals; public wrongs, or crimes and misdemefnors, are a breach and violation of the public rights and duties, due to the whole community, confidered as a community, in it's focial 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 poffeffion of the land: but treafon, murder, and robbery are properly ranked among crimes; fince, befides the injury done to individuals, they strike at the very being of fociety; which cannot poffibly fubfift, where actions of this fort are fuffered to escape with impunity.

In all cafes the crime includes an injury: every public offence is also a private wrong, and fomewhat more; it affects the individual, and it likewife affects the community. Thus

treafon