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treason in imagining the king's death involves in it confpiracy against an individual, which is also a civil injury: but as this species of treason in it's 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 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 gross and atrocious injuries the private wrong is swallowed up in the public: we feldom hear any mention made of satisfaction to the individual; the fatisfaction to the community being so very great. And indeed, as the public crime is not otherwise avenged than by forfeiture of life and property, it is impoffible 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 so severe, but it affords room for a private compenfation also: and herein the distinction of crimes from civil injuries is very apparent. For instance; 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 satisfaction in damages. So also, in case 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 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 make ample fatisfaction, as well for the private injury, as for the public wrong.

UPON the whole we may observe, 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 restoring to him his right, if possible; or by giving him an equivalent; the manner of doing which was the object of our enquiries 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 present book..

II. THE nature of crimes and misdemesnors in general being thus afcertained and diftinguished, I proceed in the next place to confider the general nature of punishments: which are evils or inconveniences consequent upon crimes and misdemesnors; being devised, denounced, and inflicted by human laws, in consequence of disobedience or misbehaviour in those, to regulate whose conduct such laws were respectively made. And herein we will briefly confider 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 difcretionary penalties for crimes and misdemesnors. 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 be vested in all mankind; fince all are by nature equal. Whereof

See Grotius, de j. b. & p. 1. 2. c. 20. Puffendorf, L. of Nat. and N. b. 8. c. 3.

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the first murderer Cain was so sensible, that we find him expreffing his apprehenfions, that whoever should find him would flay 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 offences against the law of nature, that is now vested in the magistrate alone; who bears the fword 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 ftate, (though, in fact, never exercised by any) of punishing not only their own subjects, but also foreign embassadors, even with death itself; in cafe 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*.

As to offences merely against the laws of fociety, which are only mala prohibita, and not mala in fe; the temporal magiftrate is also empowered to inflict coercive penalties for fuch tranfgressions: and this by the consent of individuals; who, in forming societies, did either tacitly or expressly invest the sovereign power with a right of making laws, and of enforcing obedience to them when made, by exercising, upon their nonobservance, feverities adequate to the evil. The lawfulness therefore of punishing such criminals is founded upon this principle, that the law by which they suffer was made by their own consent; it is 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 fame power, and no more, over all it's members, as each individual member had naturally over himself or others. Which has occafioned some to doubt, how far a human legislature ought to inflict capital punishments for positive offences; offences 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 offences mala in fe, capital punishments are in some instances inflicted by the immediate command of God himself to all mankind; as, in the cafe 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 fuch express warrant or example, at the will and difcretion of the human legiflature; as for forgery, for robbery, and fometimes for offences of a lighter kind. Of these we are principally to fpeak: as these crimes are, none of them, offences against natural, but only against social, rights; not even robbery itself, unless it be a robbery from one's perfon: all others being an infringement of that right of property, which, as we have formerly seen", owes it's origin not to the law of nature, but merely to civil fociety.

Gen. iv. 14.

* See Vol. I. pag. 254.

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THE practice of inflicting capital punishments, for offences of human institution, is thus justified by that great and good man, fir Matthew Hale": "when offences 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 it's inhabitants, severe punishment " and even death itself is necessary to be annexed to laws in " many cafes by the prudence of lawgivers." It is therefore the enormity, or dangerous tendency, of the crime, that alone can warrant any earthly legiflature in putting him to death that

1

Gen. ix. 6. Book II. ch. 1. VOL. IV.

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1 Hal. P. C. 13.

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commits

commits it. It is not it's frequency only, or the difficulty of otherwise preventing it, that will excuse our attempting 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; fince 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 flight offences, 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 farther 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 Catherine 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 experience of it's 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 fure and effectual remedy, that would not prove the necessity (upon which the justice and propriety depend) of inflicting them upon all occafions 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 waggons 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

• Grand instructions for framing a new code of laws for the Russian empire. §. 210. fuch

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