Distinction between crimes rics. Some examples pro duced. omissions of less consequence, are comprised under the gentler names of "misdemesnors" only (5). The distinction of public wrongs from private, of crimes and civil inju- 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 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 (6). Every crime includes a public In all cases the crime includes an injury: every public wrong and a ci- offence is also a private wrong, and somewhat more; it affects vil injury; and, the individual, and it likewise affects the community. in some cases, the offender may make satisfac Thus be compelled to 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 its consequences principally tends tion for each separately. [ *6 ] (5) In the English law misdemeanor is generally used in contradistinction to felony, and misdemeanors comprehend all indictable offences, which do not amount to felony; as perjury, battery, libels, conspiracies, &c.-CH. (6) The distinction between public crimes and private injuries seems entirely to be created by positive laws, and it is referable only to civil institutions. Every violation of a moral law, or natural obligation, is an injury, for which the offender ought to make retribution to the individuals who immediately suffer from it; and is also a crime, for which he ought to be punished to that extent which would deter both him and others from a repe tition of the offence. In positive laws those acts are denominated injuries, for which the legislature has only provided retribution, or a compensation in damages; but, when from experience it is discovered that this is not sufficient to restrain within moderate bounds certain classes of injuries, it then becomes necessary for the legislative power to raise them into crimes, and to endeavour to repress them by the terror of punishment, or the sword of the public magistrate. The word crime has no technical meaning in the law of England. It seems, when it has a reference to positive law, to comprehend those acts which subject the offender to punishment. When the 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 words high crimes and misdemeanors are used in prosecutions by impeachment, the words high crimes have no definite signification, but are used merely to give greater solemnity to the charge. When the word crime is used with a reference to moral law, it implies every deviation from moral rectitude. Hence we say, it is a crime to refuse the payment of a just debt; it is a crime wilfully to do an injury to another's person or property without making him a satisfaction. To destroy another's property wilfully, without making the owner a compensation is, in all cases, a worse crime in reason than theft; because the individual deprived of his property suffers precisely the same injury, and the public loses the benefit of that property, which contributes to the support of no one; and he, who does the injury, has not the temptation of See post 221, n. (2). †The 9 Geo. I. c. 22, relating to killing and maiming cattle, is repealed; see post 245, n. (54). This has now been done. By 7 & 8 Geo. IV. c. 30, § 17, "if any person shall unlawfully and maliciously set fire to any crop of corn, grain, or him who steals to supply his wants. In the case of those actions which are only civil injuries, and to which no legal punishment is annexed, the law has supposed that retribution will be sufficient to deter from the commission of them. But the wilful and malicious destruction of another's property by fire, in many cases, is punished with death, so also is the malicious killing and maiming of another's cattle ;† yet these detestable and diabolical acts were not crimes by the common law of England; but experience discovered the necessity of rendering them subject to public and severe punishment. Yet to set fire to a field of ripe standing corn is still only a private injury, though this is an act which strikes at the very being of society; but the legislature have not yet found it necessary to repress it by the terror of penal laws.+-CH. pulse, whether standing or cut down, every such offender shall be guilty of felony, and be liable to be transported for seven years, or to be imprisoned not exceeding two years; and, if a male, to be once, twice, or thrice, publicly or privately whipped." See post 244, n. (52). 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 aggressor. 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 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 (7). 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 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 [ *7] *ample satisfaction, as well for the private injury as for the public wrong. The object of criminal laws redress the in 2. To prevent it. Upon the whole we may observe that in taking cognizance twofold: 1. To of all wrongs, or unlawful acts the law has a double view: jury done: and viz. not only to redress the party injured by either restoring the repetition of 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 (7) The court of Common Pleas will not compel a party who has proceeded both by indictment and action for the same assault, to make his election upon which he will rely. Jones v. Clay, 1 Bos. & Pul. 191; and, though it was formerly held, that in general, if the party moved for a criminal information, he must abandon any action, that doctrine seems to have been broken in upon by a very recent case in the court of King's Bench, Caddy v. Barlow, 1 Man. & Ry. 275, where it was held in an action by A. for the malicious prosecution by C. of an indictment against A. and B., that a rule for a criminal information obtained by A., and made absolute, was no bar to the action. See also the note to that case, Id. 278. breaches are, and how prevented or punished, are to be considered in the present book. punishments power, end, and punishment was in every indivi since been general consent trate. II. The nature of crimes and misdemesnors in general The nature of being thus ascertained and distinguished, I proceed in the consists in their next place to consider the general nature of punishments: measure. 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 power of the temporal legislator to inflict discretionary penalties for originally vested crimes and misdemesnors (h). It is clear, that the right of dual, but has punishing crimes against the law of nature, as murder and transferred by the like, is in a state of mere nature vested in every individual. to the magisFor 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 (i) 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 is now vested in the magistrate alone; who bears the sword of justice by the consent of the whole community. And to this precedent natural power of individuals must be referred that right, which some have argued to belong to every state, (though, in fact, never exercised by any,) of punishing not only their own subjects, but also foreign ambassadors, even with death itself; in case they have offended, not indeed against the municipal laws of the country, but against the divine laws of nature, and become liable thereby to forfeit their lives for their guilt (k). (h) See Grotius, de j. b. and p. 1.2, c. 20. Puffendorf, L. of Nat. and N. b. 8, c. 3. (i) Gen. iv. 14 254. [ *8 ] That general consent renders punishments lawful. The origin of capital punish propriety considered. 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 thereof 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. This right, therefore, being thus conferred by universal ments. Their consent, gives to the state exactly the same power, and no more, over all its members, as each individual member had [ *9] *naturally over himself or others. Which has occasioned some to doubt, how far a human legislature ought to inflict capital punishments for positive offences; offences against the municipal law only, and not against the law of nature; since no individual has, naturally, a power of inflicting death upon himself or others for actions in themselves indifferent. With regard to offences mala in se, capital punishments are in some instances inflicted by the immediate command of God himself to all mankind; as in the case of murder, by the precept delivered to Noah, their common ancestor and representative (1), "whoso sheddeth man's blood, by man shall his blood be shed." In other instances they are inflicted after the example of the Creator, in his positive code of laws for the regulation of the Jewish republic; as in the case of the crime against nature. But they are sometimes inflicted without such express warrant or example, at the will and discretion of the human legislature; as for forgery, for theft, and sometimes for offences of a lighter kind. Of these we are principally to speak: as these crimes are, none of them, offences against natural, but only against social rights; not even theft itself, unless it be accompanied with violence to one's house or person: all others being an infringement of that right of property, which as we have for (1) Gen. ix. 6. |