BOOK IV.

OF PUBLIC WRONGS.

CHAPTER I.

OF THE NATURE OF CRIMES, AND THEIR
PUNISHMENT.

WE are now arrived at the fourth and last branch of these Commentaries, which treats of public wrongs, or crimes and misdemeanors. 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 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: 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 centres 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.

I. A crime, or misdemeanor, 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: 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 omissions of less consequence, are comprised under the gentler name of "misdemeanors" only.

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 public rights and duties, due to the whole community, considered as a community, in its 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, besides the injury done to individuals, they strike at the very being of society; which cannot possibly subsist, where actions of this sort are suffered to escape with impunity.

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 inquiries 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 sovereign 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 considered in the present book.

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 inconveniencies 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. As to the power of human punishment, or the right of the temporal legislator to inflict discretionary penalties for crimes and misdemeanors. 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. In a state of society this right is transferred from individuals to the sovereign power; whereby men are prevented being judges in their own causes, which is one of the evils that civil government was intended to remedy.

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, 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 non-observance, severities 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 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. As to the end, or final cause of human punishments. This is not by way of atonement or expiation for the crime committed; for that must be left to the just determination of the Supreme

Being; but as a precaution against future offences This is effected three ways:

of the same kind. either by the amendment of the offender himself; for which purpose all corporal punishments, fines, and temporary exile or imprisonment are inflicted: or, by deterring others by the dread of his example from offending in the like way, "ut pœna (as Tully expresses it) ad paucos, metus ad omnes perveniat ;" 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 further mischief; which is effected by either putting him to death, or condemning him to perpetual confinement, slavery, or exile. The same one end, of preventing future crimes, is endeavoured to be answered 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 farther 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.

3. As to the measure of human punishments. From what has been observed we may collect, that the quantity of punishment can never be absolutely determined by any standing invariable rule; but it must be left to the arbitration of 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