these external 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 civil. I shall not here enter into any minute inquiries concerning the local constitutions of other nations: the inhumanity 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 those of his equals, against whom he can form no exception nor even a personal dislike;

even here we shall occasionally find room to remark some particulars that seem to want revision and amendment. These have chiefly arisen from too scrupulous an adherence to some rules of the antient common law, when the reasons have ceased upon which those rules were founded; from not repealing such of the old penal laws as are either obsolete [4] or absurd; and from too little care and attention in framing and passing 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 passions or interests of a few, who upon temporary motives may prefer or support such a bill; but be calmly and maturely considered by persons who know what provisions the laws have already made to remedy Baron Montesquieu, marquis Beccaria, &c.

the mischief complained of, who can from experience foresee the probable consequences of those which are now proposed, and who will judge without passion 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 some of the learned judges, and hearing their report thereon. And surely equal precaution is necessary, when laws are to be established, which may affect the property, the liberty, and perhaps even the lives of thousands. Had such a reference taken place, it is impossible 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 escape; or to cut down a cherry-tree in an orchard'. 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 persons who call themselves, or are called, Egyptians §. (1)

Ir is true, that these outrageous penalties, being seldom or never inflicted, are hardly known to be law by the public: [5] but that rather aggravates the mischief, by laying a snare for the unwary. Yet they cannot but occur to the observation 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 such a one to hint them with decency to those, whose abilities and stations enable e See Vol. II. p. 345.

f Stat. 9 Geo. I. c. 22. 31 Geo. II. c.42.

Stat. 5 Eliz. c. 20.

(1) The 9 G. 1. c. 22. which was made perpetual by the 31 G. 2. c.42., has been in great measure repealed as to its capital punishments; the two offences mentioned in the text are now punishable, the first by seven years' transportation, or imprisonment with or without hard labour for any term not exceeding three years, and the second by transportation for life, or any term not less than seven years, or imprisonment with or without hard labour for any term not exceeding seven years. The 5 Eliz. c. 20. has been repealed by the 23 G. 3. c. 51., as well as so much of a statute of 1 & 2 P. & M. c. 4. as made it a capital felony for persons calling themselves Egyptians, to remain one month in England, by 1 G. 4. c.116. By this last named statute, the 1 G. 4. c.115., and several later enactments, the parts of several statutes which inflicted capital punishment for disproportionately small offences, were repealed; and smaller penalties, where necessary, were imposed. These will be specified in their proper places.

them to apply the remedy. Having therefore premised this apology for some of the ensuing remarks, which might otherwise seem to savour of arrogance, I proceed now to consider (in the first place) the general nature of crimes.

I. A CRIME, or misdemesnor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemesnors; 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 "misdemesnors" only. (2)

THE distinction of public wrongs from private, of crimes and misdemesnors 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 misdemesnors, are a breach and violation of the public rights and duties, due to the whole community, considered as a community, in it's 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.

(2) In the English law offences are technically divided into felonies and misdemesnors, under the latter term are comprised all offences which are not felonies, whether against common or statute law, whether indictable or subject only to summary punishment. The French law has three terms, distinguishing between "crimes," "delits," and "contraventions;" the first are those offences, of which the punishment renders the party infamous, and rather aims to inflict suffering on him than to produce his amendment; the second, those of which the punishment aims to reform the offender; the third, correspond in great measure to the class of offences punishable summarily by the English law, offences against the police, and good order of the community. Code Penal Disp. Prel. Art. 1.

In all cases the 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 treason in imagining the king's death involves in it conspiracy 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 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; but 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 capital offence. In these gross and atrocious injuries the private wrong is swallowed up in the public we seldom hear any mention made of satisfaction to the individual; the satisfaction 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 impossible afterwards to make any reparation for the private wrong which can only be had from the body or goods of the But there are crimes of an inferior nature, in aggressor. which the public punishment is not so severe, but 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 battery, or beating another, the aggressor may be indicted for this at the suit 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 nuisance, as digging a ditch across a highway, this is punishable by indictment, as a common offence to the whole kingdom and all [7] 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

ample satisfaction, as well for the private injury as for the public wrong. (3)

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 misdemesnors 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 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 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

(3) It is not very easy in theory, and quite impossible according to the English law, to lay down any single principle by which to distinguish crimes from civil injuries,― public from private wrongs. In theory, every wilful violation of another's right, however committed, and to whatever extent, is a crime, and so a public wrong. By the English law a distinction exists, but it seems wholly technical; depending sometimes on the situation of the agent; sometimes on the nature or relations of the thing which is the object of the act; sometimes on the manner in which the act is done; sometimes on the consequences of the act, the time of doing it, and other grounds which it would be useless here to enumerate, because they can only be learned thoroughly by an acquaintance with the law itself. This however will explain, why much of the reasoning in the text is necessarily unsatisfactory; because it is an attempt to explain upon one principle, what has been founded upon many.