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E are now arrived at the fourth and last branch of these commentaries; which treats of public wrongs, or crimes and misdemesnors. For we may remember that, in the beginning of the preceding volume, wrongs were divided into two forts or 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 confideration of public wrongs, or crimes and misdemesnors; with the means of their prevention and punishment. In the pursuit of which subject I shall consider, in the first place, the general nature of crimes and punishments; secondly, the perfons capable of committing crimes; thirdly, their several degrees of guilt,

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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 perpetration; and, fixthly, the method of inflicting those punishments, which the law has annexed to each feveral crime and misdemesnor.

FIRST, as to the general nature of crimes and their punishment: the discussion and admeasurement of which forms in every country the code of criminal law; or, as it is more usually denominated with us in England, the doctrine of the pleas of the crown: so called, because the king, in whom centers the majefty of the whole community, is supposed by the law to be the perfon injured by every infraction of the public rights belonging to that community, and is therefore in all cafes the proper profecutor for every public offence b.

THE knowlege of this branch of jurisprudence, which teaches the nature, extent, and degrees of every crime, and adjusts to it it's adequate and necessary 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 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 inftability 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 expose us, is a matter of universal concern.

IN proportion to the importance of the criminal law, ought also to be the care and attention of the legiflature in properly ►See Vol. I. p. 268. • Sir Michael Fofter. pref. to rep. forming 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 fometimes (provided there be no tranfgreffion of these eternal boundaries) may be modified, narrowed, or enlarged, according to the local or occafional 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 difcordant political regulations, which fuccessive 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 occafion; 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 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 shall not here enter into any minute enquiries concerning the local constitutions of other nations; the inhumanity and mistaken policy of which have been fufficiently pointed out by ingenious writers of their ownd. 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 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 occafionally find room to remark some particulars, that feem to want revision 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 repeal

Baron Montesquieu, marquis Beccaria, &..

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ing such 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 interests of a few, who upon temporary motives may 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 consequences of those which are now proposed, and who will judge without paffion 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 fome of the learned judges, and hearing their report thereon. And furely 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 malicioufly) the mound of a fishpond, whereby any fish shall escape; or to cut down a cherry tree in an orchardf. 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 seen for one month in the company of persons who call themselves, or are called, Egyptians 8.

It is true, that these outrageous penalties, being feldom 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

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 favour of arrogance, I proceed now to confider (in the first place) the general nature of crimes.

I. A CRIME, or misdemesnor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemesnors; which, properly speaking, are mere synonymous terms: though, in common usage, the word, "crimes," is made to denote such 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" mesnors" only.

THE distinction of public wrongs from private, of crimes and misdemesnors from civil injuries, seems 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 misdemesnors, are a breach and violation of the public rights and duties, due to the whole community, confidered as a community, in it's 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, befides the injury done to individuals, they strike at the very being of society; which cannot possibly fubfift, where actions of this fort are suffered 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 likewise affects the community. Thus treafon.