COMMENTARIES

ON THE

LAWS OF ENGLAND.

BOOK THE FOURTH.

OF

PUBLIC WRONGS.

CHAPTER THE FIRST.

OF

THE NATURE OF CRIMES; AND THEIR
PUNISHMENT.

WE

E are now arrived at the fourth and last branch of PUBLIC WRONGS. 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 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 consideration of public wrongs, or crimes and misdemeanors; with the means of their prevention and punishment. In the pursuit of which subject I shall consider

VOL. IV.

(a) Book III. ch. 1.
A

in

1

[2]

Crimes and their punishments,

of the nature of which, a know

necessary,

in the first place, the general nature of crimes and punishments; secondly, the persons capable of committing crimes; thirdly, their several degrees of guilt, as principals or accessaries; 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, sixthly, the method of inflicting those punishments, which the law has annexed to each several 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 majesty of the whole community, is supposed by the law to be the person injured by every infraction of the public rights belonging to that community, and is therefore in all cases the proper prosecutor for every public offence".

c

THE knowledge of this branch of jurisprudence, which ledge is absolutely teaches the nature, extent, and degrees of every crime, and adjusts to it its 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 occasion) 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 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 consequences to

(b) See vol. I. p. 268.

which

(c) Sir Michael Foster, Pref. to Rep.

which a wilful disobedience may expose us, is a matter of

universal concern.

larly claim the at

tention of the legislature.

[ 3 ]

IN proportion to the importance of the criminal law, ought and should particualso to be the care and attention of the legislature in properly 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 sometimes (provided there be no transgression of these eternal boundaries) may be modified, narrowed, or enlarged, according to the local or occasional 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 discordant political regulations, which successive 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 occasion; 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 some, 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

land.

civil. I shall not here enter into any minute enquiries con- Errors in the crimi cerning the local constitutions of other nations; the inhu-nal code of Engmanity 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 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;

(d) Baron Montes quien, marquis Beccaria, &c.

even