infirmities of the best among us, the vices and ungovernable passions of others, the instability of 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 which a wilful disobedience may expose us, is a matter of universal concern.

legislature.

In proportion to the importance of the criminal law ought also to be the care and attention of the legislature in properly forming and enforcing it. It should be founded* upon principles that are permanent, Especially to the [*3] uniform, and universal; and should be 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 has happened, that the criminal law throughout the countries of Europe and in our own has until recently been more rude and imperfect than the civil.

I proceed now to consider (in the first place) the general nature of crime.

I. A crime is an act committed, or omitted, in violation of a public law, either forbidding or commanding it. This general definition, which will in future chapters be rendered more precise, comprehends both crimes which are indictable, and offences which are summarily punishable.

I. Nature of crime in general.

between public and private

wrongs.

The distinction of public wrongs from private, of crimes from civil injuries, seems principally to consist in this: that private wrongs, or civil injuries, Distinction are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals: public wrongs, or crimes, are a breach and violation of the public rights and * duties, due to the whole community, considered as a community, [*4] in its social aggregate capacity. If I detain a field from another man, to which the law has given him a right, this is a civil injury, 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. (606)

(606) In most of the States the common law is held to extend as well to criminal cases as to civil. See State v. Bosse, 8 Rich. (S. C.) 276; State v. Danforth, 3 Conn. 112; State v. Twogood, 7 Iowa, 252; Smith v. People, 25 Ill. 17; Barlow v. Lambert, 28 Ala. 704;

is, in general, also a private wrong.

In nearly every case a crime includes an injury; almost every public offence is also a private wrong, and somewhat more; it affects the individual, and it A public offence likewise affects the community. Thus treason in imagining the sovereign's death involves in it conspiracy against an individual, which is also a civil injury; but, as this species of treason in its consequences principally tends to the dissolution of government, and the destruction thereby of the order and peace of society, it must be regarded as 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 be allowed to atone for it: the public mischief is the thing, for the prevention of which our laws have made this offence severely punishable. In any such gross and atrocious injury 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 or liberty and property, it is in general impossible afterwards that any reparation can be made for the private *wrong: for this can only be had from the body or [*5] goods of the aggressor. (607) But there are crimes of an inferior nature, in 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 suit of the crown, 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 for the injury which he in particular sustains, and may recover a civil satisfaction in damages. (608) So also, in case of a public nuisance, as digging a ditch

State v. Rollins, 8 N. H. 550; Com. v. Newell, 7 Mass. 245; State v. Odum, 11 Texas, 12. But it has been decided otherwise in Ohio. See Allen v. State, 10 Ohio St. 287; Smith v. State, 12 id. 466; Key v. Vattier, 1 Ohio, 132. And in Indiana criminal offenses are defined and punished solely by statute. See Jennings v. State, 16 Ind. 335; Beal v. State, 15 id. 378; Marvin v. State, 19 id. 181; Hackney v. State, 8 id. 494.

(607) The doctrine of the English law, that in felony no action lies against the felon, before the institution of criminal proceedings against him, is not in force in the United States. In some of the States where the rule had been established by decisions of the courts it has been abolished by legislative enactments. See N. Y. Code, § 7; Stat. of Maine, 1844, chap. 102. Prosecutions for offenses against the State are, in this country, conducted by officers selected for the purpose; and parties injured by a felony may demand and recover compensation for the private injury inflicted, without awaiting the result of such action as the public prosecutor may see proper to institute. Boston & Worcester R. R. Corp. v. Dana, 1 Gray (Mass.), 83, 100; Story v. Hammond, 4 Ohio, 376; Pettingill v. Rideout, 6 N. H. 454; Blassingame v. Glaves, 6 B. Monroe (Ky.), 38; Cross v. Guthery, 2 Root (Conn.), 90; Gordon v. Hostetter, 37 N. Y. (10 Tiff.) 99, 105. See Newton v. Porter, 5 Lans. 416, 432.

It is illegal, however, in a private individual to suppress a prosecution for a crime, or the evidence necessary to support such a prosecution. Plumer v. Smith, 5 N. H. 553.

(608) The prosecutor, in an indictment for an assault and battery, has a right to proceed both criminally and civilly, and he will not be compelled to make his election upon which he will rely. Buckner v. Beck, Dudley (S. C.), 168; State v. Frost, 1 Brev. (S. C.) 385. But

across a highway, this is punishable by indictment, as a common offence to the whole kingdom and to all her majesty's subjects; but if any individual sustains any special damage thereby, his horse being lamed, his carriage broken, or the like, the offender may be compelled to make ample satisfaction, as well for the private injury as for the public wrong.

Upon the whole we may observe, that in taking cognisance of 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, is to be considered in the present book.

II. Nature of pungeneral.

II. The nature of crime in general being thus ascertained and distinguished, I proceed in the next place, to consider the general nature of punishment: which is an *evil or inconvenience consequent upon ishment in [*6] crime; 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.

punishment.

1. As to the power of human punishment, or the right of the temporal legislator to inflict discretionary penalties for crimes (d). It is clear that the 1. The power of 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. 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. Whereof the first murderer Cain was so sensible, that we find him (e), expressing his apprehensions, that whoever should find him. would slay him. 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 power is now vested in the magistrate alone; who bears the sword of justice by consent of the whole community.

As to offences merely against the laws of society, being 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

(d) See Grotius, de J. B. & P. 1. 2, c. 20. (e) Gen. iv. 14. Puffendorf, L. of Nat. and N. b. 8, c. 3.

see State v. Blyth, 1 Bay (S. C.), 166. And proceedings on the indictment will not be stayed because a civil suit is pending to recover damages for the same assault and battery. Commonwealth v. Elliott, 2 Mass. 372; People v. Judges, etc., of Genesee, 18 Johns. 85.

The act of an individual in abating a public nuisance does not bar him of an action for damages. The abatement is preventive merely. Pierce v. Dart, 7 Cow. 609.

sovereign power with the 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 (ƒ) into which they entered, when first they engaged in society; it was calculated for, and has long contributed to, their own security.

This right, therefore, being thus conferred by universal consent, gives to the state exactly the same power, over all its members, as each individual member had naturally over himself or others.

punishment.

2. As to the end or final cause of human punishment. This is not by way of atonement or expiation for the crime committed: for that must be left to 2. The object of the just determination of the Supreme Being: but as a precaution against future offences of the same kind. This may be effected three ways: either by the amendment of the offender himself, or, by deterring others by the dread of his example from offending in the like way, "ut pœna ad paucos, metus ad omnes, perveniat;" (g) or, lastly, by depriving the party injuring of the power to do future mischief, either permanently or for a season. The same one end, of preventing future crimes, is thus endeavoured to be answered. 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 in producing both these effects, as it may do, still the terror of his example remains as a warning to other citizens. The method however of inflicting punishment ought always to be proportioned to the particular purpose it is meant to serve, and by no means to exceed it.

*

3. As to the measure of human punishments. From what has been observed in the former articles 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 best calculated to answer the end of precaution against future offences.

3. The measure or degree of punishment.

[*8]

Hence it will be evident, that what some have so highly extolled for its equity, the lex talionis, or law of retaliation, cannot be a fit or adequate` rule of punishment. It is unequal in its operation; for a difference of person, place, time, provocation, or other circumstance, may enhance or mitigate the offence; and if so, retaliation cannot be a proper measure of justice. If a man maliciously should put out the remaining eye of him who had lost one before, it is too slight a punishment for the maimer to lose only one of his: and therefore the law of the Locrians, which demanded an eye for an eye, was in this instance judiciously altered by decreeing, in imitation of Solon's laws (h), that he who struck out the eye of a one-eyed man, should lose both his own in return. Besides, there are very many crimes, that will in no shape admit of these penalties, without manifest absurdity and wickedness. Theft cannot be punished by theft, defamation by defamation, forgery by forgery, adultery by adultery, and the like. And we may add, that those instances, wherein retali

(f) Ante, vol. i. p. 41.

(g) Cic. Pro Cluentio, 46.

(h) Pott. Ant. b. 1, c. 26.

ation appears to be used, even by the divine authority, do not really proceed upon the rule of exact retribution, by doing to the criminal the same hurt he has done to his neighbour, and no more: but this correspondence between the crime and punishment is barely a consequence from some other principle. Death is ordered to be punished with death, not because one is equivalent to the other, for that would be expiation, and not punishment. Nor is death always an equivalent for death; the execution of a needy decrepit assassin is a poor satisfaction for the murder of a nobleman in the bloom of his youth, and full enjoyment of his friends, his honours, and his fortune. But the reason upon which * this sentence is grounded seems to be, that this is the [*9] highest penalty that man can inflict, and tends most to the security of mankind; by removing one murderer from the earth, and setting a dreadful example to deter others; so that even this grand instance proceeds upon other principles than those of retaliation. And truly, if any measure of punishment is to be taken from the damage sustained by the sufferer, the punishment ought rather to exceed than equal the injury: since it seems contrary to reason and equity, that the guilty (if convicted) should suffer no more than the innocent has done before him; especially as the suffering of the innocent is past and irrevocable, that of the guilty is future, contingent, and liable to be escaped or evaded. With regard indeed to crimes that are incomplete, which consist merely in the intention, and are not yet carried into act, as conspiracies and the like; the innocent has a chance to frustrate or avoid the villany, as the conspirator has also a chance to escape his punishment: and this may be one reason why the lex talionis is more proper to be inflicted, if at all, for crimes that consist in intention, than for such as are carried into act. It seems indeed consonant to natural reason, and has therefore been adopted as a maxim by several theoretical writers (i), that the punishment due to the crime of which one falsely accuses another, should be inflicted on the perjured informer. Accordingly, when it was once attempted to introduce into England the law of retaliation, it was intended as a punishment for such only as preferred malicious accusations against others; it being enacted by statute 37 Edw. 3, c. 18, that such as preferred any suggestions to the king's great council should put in sureties of taliation; that is, to incur the same pain that the other should have had, in case the suggestion were found untrue. But, after one year's experience, this punishment of taliation was rejected, and imprisonment adopted in its stead (k).

*But though from what has been said it appears, that there cannot

[*10] be any regular or determinate method of rating the quantity of punishment for crime, by any one uniform rule; that it must be referred to the will and discretion of the legislative power: yet there are some general principles, drawn from the nature and circumstances of a crime, that may be of some assistance in allotting to it an adequate punishment.

As, first, with regard to the object of it: for 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. Therefore treason in compassing and conspiring the death of the sovereign is by the English law punished with greater rigour than even actually killing any private subject. And yet, generally, a design to transgress is not so flagrant (i) Beccar. c. 15.

(k) Stat. 39 Edw. 3, c. 9.