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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 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 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 lasting efficacy to fanctions that were intended to be temporary, and made (as lord Bacon expresses it) merely upon the spur of the occasion; or from, laftly, too haftily 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 thefe 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 conftitutions 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 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 perfonal 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 reafons have ceafed upon which thofe rules were founded; from not repealBaron Montefquieu, marquis Beccaria, &c. A 2
ing fuch of the old penal laws as are either obsolete 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 support such a bill; but be calmly and maturely confidered by perfons, 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 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 surely equal precaution is neceffary, when laws are to be established, which may affect the property, the liberty, and perhaps even the lives, of thousands. 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 fish shall efcape; or to cut down a cherry tree in an orchard f. 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 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 fnare for unwary. Yet they cannot but occur to the obfervation 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 fuch a one to hint them with Stat. 5 Eliz. c. 20.
• See Vol. I. F. 345.
Stat. 9 Geo. I. c. 22. 31 Geo. II. c. 42.
decency to thofe, whofe abilities and ftations enable them to apply the remedy. Having therefore premised this apology for fome 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 misdemefnor, 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 ufage, 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 "misde"mefnors" only.
THE diftinction 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 society; 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 somewhat more; it affects the individual, and it likewife affects the community. Thus
treafon in imagining the king's death involves in it confpiracy against an individual, which is also a civil injury: but as this fpecies of treafon in it's confequences principally tends to the diffolution of government, and the deftruction 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 ftate fuftains 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 mifchief 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 swallowed up in the public: we feldom hear any mention 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 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 alfo: and herein the distinction 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 majesty's fubjects: but if any individual fuftains any special damage thereby, as 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 restoring to him his right, if poffible; 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 fociety, by preventing or punishing every breach and violation of thofe 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 afcertained and distinguished, I proceed in the next place to confider the general nature of punishments: which are evils or inconveniences confequent upon crimes and misdemesnors; be-ing devised, denounced, and inflicted by human laws, in consequence of disobedience or misbehaviour in those, to regulate whofe conduct fuch 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 discretionary penalties for crimes and misdemefnors h. 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 fruitlefs, if none were empowered to put them in execution and if that power is vefted in any one, it must also be vested in all mankind; fince all are by nature equal. Whereof
See Grotius, de j. b. & p. l. 2. c. 20. Puffendorf, L. of Nat. and N. b. 8. c. 3.