BOOK THE FOURTH.

OF PUBLIC WRONGS.

CHAPTER I.

OF THE NATURE OF CRIMES; AND THEIR PUNISHMENT. General nature of crimes-and punishments-end of punishment-measure of punishment.

WE are now arrived at the fourth and last branch of these commentaries; 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, 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 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, sixthly, the method of inflicting those punishments which the law has annexed to each several crime and misdemeanor.

First, as to the general nature of crimes and their punishment; ur, as it is more usually denominated, the doctrine of the pleas of the crown; so called, because the sovereign is supposed by the law to be the person injured by every infraction of the public rights of the community, and is therefore the proper prosecutor for every public offence.

I. A crime is an act committed, or omitted, in violation of a ́public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemeanors, which, properly speaking, are mere synonymous terms. But in common usage the word "crimes" is made to denote such offences as are of a deeper and more atrocious dye; while smaller faults are comprised under the gentler name of "misdemeanors" only; and are so designated, I may add, in contradistinction to felonies: the former class

comprehending all indictable offences which do not fall within the other, such as assaults, nuisances, non-repair of a highway, and the like.

The distinction of public wrongs from private, of crimes and misdemeanors from civil injuries, seems principally to consist in this: that private wrongs, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals: public wrongs, or crimes and misdemeanors, are a breach and violation of the public rights and duties due to the whole community, considered as a community, in its social aggregate capacity. In all cases, therefore, a crime includes an injury; every public offence is also a private wrong, and somewhat more; it affects the individual, and it likewise affects the community. Thus murder is an injury to the life of an individual; but the law of society considers principally the loss which the state sustains by being deprived of a member, and the pernicious example thereby set for others to do the like. Robbery may be considered in the same view it is an injury to private property; were that all, a civil satisfaction in damages might atone for it: the public mischief is the thing, for the prevention of which our laws have made it a felony. In these gross and atrocious injuries the private wrong is swallowed up in the public: and we seldom hear any mention made of satisfaction to the individual; the satisfaction to the community being so very great.

There are crimes, however, of an inferior nature, in which the punishment is not so severe but that it affords room for a private compensation also; and herein the distinction of crimes from civil injuries is very apparent. For instance, in the case of an assault, the aggressor may be punished criminally; and the party beaten may also have his private remedy by an action for damages. So, upon the whole, we may observe, that the law has a double view: viz., not only to redress the party injured, but also to secure to the public the benefit of society, by preventing or punishing every breach and violation of those laws, which have been established for the government and tranquillity of the whole.

II. The nature of crimes and misdemeanors in general being thus ascertained and distinguished, I proceed, in the next place, to consider the general nature of punishments, which are evils or inconveniences consequent upon crimes and misdemeanors; 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 consider the power, the end, and the measure of human punishment.

1. 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; since all are by nature equal. 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 sword of justice by the consent of the whole community.

As to offences merely against the laws of society, which are only mala prohibita, and not mala in se, the temporal magistrate is also empowered to inflict coercive penalties for such transgressions: and this by the consent of individuals, who, in forming societies, invested the sovereign power with the right of making laws, and of enforcing obedience to them when made. 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 a 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.

2. The end or final cause of human punishments is not by way of atonement or expiation for the crime committed, but as a precaution against future offences of the same kind. This is effected three. ways: either by the amendment of the offender himself; for which purpose all corporal punishments, fines, and temporary imprisonments are inflicted: or, by deterring others by the dread of his example from offending in the like way; which gives rise to all ignominious punishments, and to such executions of justice as are open and public: or, lastly, by depriving the party injuring of the power to do future mischief; which is effected by either putting him to death, or condemning him to perpetual confinement or exile. The same one end, of preventing future crimes, is sought by each of these three species of punishment. The public gains equal security, whether the offender himself be amended by wholesome correction, or whether he be disabled from doing any further harm; and if the penalty fails of both these effects, as it may do, still the terror of his example remains as a warning to other citizens..

The measure of human punishments, therefore, can never be absolutely determined by any standing invariable rule; but it must

be left to the legislature to inflict such penalties as are warranted by the laws of nature and society, and such as appear to be the best calculated to answer the end of precaution against future offences. Yet there are some general principles, drawn from the nature and circumstances of the crime, that may be of some assistance in allotting it an adequate punishment. Thus the greater and more exalted the object of an injury is, the more care should be taken to prevent that injury, and of course under this aggravation the punishment should be more severe. Treason is therefore by the law punished with greater rigour than even actually killing any private subject. Again the violence of passion, or temptation, may sometimes alleviate a crime. Theft, in case of hunger, is more worthy of compassion than when committed through avarice; and to kill a man upon sudden resentment, is less penal than upon cool deliberate malice. The age, education, and character of the offender; the repetition of the offence; the time, the place, the company wherein it was committed; all these, and a thousand other incidents, may aggravate or extenuate the crime. Finally, it may be observed that punishments of unreasonable severity have less effect in preventing crimes, and amending the manners of a people, than such as are more merciful in general, yet properly intermixed with due distinctions of severity. Crimes are more effectually prevented by the certainty than by the severity of punishment. For the excessive severity of laws hinders their execution; and when the punishment surpasses all measure, the public will frequently out of humanity prefer impunity to it. The laws of the Roman kings, and the twelve tables of the decemviri, were full of cruel punishments: the Porcian law, which exempted all citizens from sentence of death, silently abrogated them all. In this period the republic flourished; under the emperors severe punishments were revived, and then the empire fell.

CHAPTER II.

OF THE PERSONS CAPABLE OF COMMITTING CRIMES.

Defect of will-Defect of understanding-Infancy-Lunacy-Drunkenness— Chance-Mistake-Civil subjection-Duress.

WE are next to inquire what persons are, or are not, capable of committing crimes; or, which is all one, who are exempted from the censures of the law upon the commission of those acts which in other persons would be severely punished. In which inquiry, we

must have recourse to exceptions; for the general rule is, that no person shall be excused from punishment, excepting such as are expressly exempted. And thus we shall find that all the excuses, which protect the committer of a forbidden act from punishment, may be reduced to this single consideration—the want or defect of will. An involuntary act, as it has no claim to merit, so neither can it induce any guilt; the concurrence of the will being the only thing that renders human actions either praiseworthy or culpable. Indeed, to make a complete crime cognisable by human laws, there must be both a will and an act. For though, in foro conscientiæ, a fixed design to do an unlawful act is almost as heinous as the commission of it, yet as no temporal tribunal can fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. For which reason in all temporal jurisdictions an overt act, or some open evidence of an intended crime, is necessary in order to demonstrate the depravity of the will, before the man is liable to punishment. And as a vicious will without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act consequent upon such vicious will.

Now there are three cases in which the will does not join with the act: 1. Where there is a defect of understanding. For where there is no discernment, there is no choice; and where there is no choice, there can be no act of the will, which is nothing else but a determination of one's choice to do or to abstain from a particular action: he, therefore, that has no understanding, can have no will to guide his conduct. 2. Where there is understanding and will sufficient residing in the party, but not called forth and exerted at the time of the action done, which is the case of all offences committed by chance or ignorance. Here the will sits neuter; and neither concurs with the act, nor disagrees to it. 3. Where the action is constrained by some outward force and violence. Here the will counteracts the deed; and is so far from concurring with, that it loathes and disagrees to, what the man is obliged to perform. Infancy, idiocy, lunacy, and intoxication, fall under the first head; misfortune and ignorance may be referred to the second; and compulsion or necessity may properly rank in the third.

I. The law in some cases privileges an infant under twenty-one, as to common misdemeanors: and particularly in cases of omission, as not repairing a bridge or a highway; for, not having the command of his fortune till twenty-one, he wants the capacity to do those things which the law requires. But where there is any breach