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Ch. 1.

WRONGS.

3

forming and enforcing it. It fhould be founded upon principles that are permanent, uniform, and univerfal; 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 tranfgression 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 difcordant political regulations, which fucceffive conquerors or factions have established, in the various revolutions of government; from giving a lafting efficacy to fanctions that were intended to be temporary, and made (as lord Bacon expreffes it) merely upon the fpur of the occafion; or from, laftly, too hastily employing fuch 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 causes, it hath happened, that the criminal law is in every country of Europe more rude and imperfect than the civil. I fhall not here enter into any minute inquiries concerning the local constitutions of other nations; the inhumanity and mistaken policy of which have been fufficiently pointed out by ingenious writers of their own. But even with us in England, where our crown-law is with justice fupposed 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, againft whom he can form no exception nor even a personal dislike;

-even here we shall occafionally find room to remark fome particulars, that seem to want revifion and amendment. These have chiefly arifen from too fcrupulous an adherence to some rules of the antient common law, when the reasons have ceafed upon which thofe rules were founded; from not d Baron Montefquieu, marquis Beccaria, &c.

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repealing fuch of the old penal laws as are either obfolete or abfurd; and from too little care and attention in framing and paffing 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 paffions or interefts of a few, who upon temporary motives may prefer or fupport fuch a bill; but be calmly and maturely confidered by perfons who know what provifions the laws have already made to remedy the mischief complained of, who can from experience foresee the probable confequences of thofe 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 houfe of peers even to read a private bill, which may affect the property of an individual, without firft referring it to fome 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. Where even a committee appointed but once in an hundred years to revife 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 8 ( 1 ).

Ir is true, that these outrageous penalties, being seldom or never inflicted, are hardly known to be law by the public: [5] 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

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(1) The

g Stat. 5 Eliz. c. 20.

5 Eliz. c. 20. which introduced this crime and it's fevere punishment is repealed by the 23 Geo. III. c. 51.

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great outlines of the English law, and tracing them up to their principles: and it is the duty of fuch a one to hint them with decency to thofe, whofe abilities and ftations enable them to apply the remedy. Having therefore premised this apology for fome of the enfuing remarks, which might otherwife 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 mifdemefnors; which, properly speaking, are mere fynonymous terms: though, in common ufage, the word "crimes" is made to denote fuch offences as are of a deeper and more atrocious dye; while fmaller faults, and omiffions of lefs confequence, are comprized under the gentler names of "mifdemefnors" only (2).

THE diftinction of public wrongs from private, of crimes and misdemefnors from civil injuries, feems principally to confist 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 mifdemefnors, 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

(2) In the English law misdemeanour is generally used in contradiftinction to felony, and misdemeanours comprehend all indictable offences, which do not amount to felony; as perjury, battery, libels, confpiracies, &c.

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[6]

very being of fociety, which cannot poffibly fubfift, where actions of this fort are fuffered to escape with impunity (3).

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 likewise affects the community. Thus treason in imagining the king's death involves in it confpiracy against an individual, which is alfo a civil injury; but as this species of treason in it's consequences principally tends to the diffolution of government, and the destruction thereby of the order and peace of fociety, this denominates it a crime of the highest magnitude. Murder is an injury to the life of an individual; but the law of fociety confiders principally the lofs which the state sustains by being deprived of a member, and the pernicious example thereby fet for others to do the like. Robbery may be confidered in the fame view: it is an injury to private property; but were that all, a civil fatisfaction in damages might atone for it: the public mischief is the thing, for the prevention of which our laws have made it a capital offence. In these grofs and atrocious injuries the private wrong is fwallowed up in the public: we feldom hear any mention

(3) The diftinction between public crimes and private injuries feems entirely to be created by positive laws, and it is referable only to civil inflitutions. 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 is alfo a crime, for which he ought to be punished to that extent, which would deter both him and others from a repetition of the offence. In pofitive laws those acts are denominated injuries, for which the legiflator has only provided retribution, or a compenfation in damages; but when from experience it is discovered that this is not fufficient to restrain within moderate bounds certain claffes of injuries, it then becomes neceffary for the legislative power to raise them into crimes, and to endeavour to reprefs them by the terror of punishment, or the sword of the public magistrate. made

made of fatisfaction to the individual; the fatisfaction to the community being fo very great. And indeed, as the public crime is not otherwise avenged than by forfeiture of life and property, it is impoflible afterwards to make any reparation for the private wrong: which can only be had from the body or goods of the aggreffor. But there are crimes of an inferior nature, in which the public punishment is not fo fevere, but it affords room for a private compenfation also: and herein the diftinction of crimes from civil injuries is very apparent. For inftance; in the cafe of battery, or beating another, the aggreffor may be indicted for this at the fuit 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 fatisfaction in damages. So alfo, in cafe of a public nusance, as digging a ditch across a highway, this is punishable by indictment, as a common offence to the whole kingdom and all his majefty's fubjects: but if any individual fuftains any special damage thereby, as [7] laming his horse, breaking his carriage, or the like, the offender may be compelled to make ample fatisfaction, as well for the private injury, as for the public wrong.

UPON the whole we may obferve, 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 reftoring to him his right, if poffible; 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 fovereign 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 confidered in the prefent book.

II. THE nature of crimes and mifdemefnors in general being thus ascertained and distinguished, I proceed, in the next

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