COMMENTARIES

ON THE

LAWS OF ENGLAND.

BOOK THE FOURTH.

OF PUBLIC WRONGS.

CHAPTER THE FIRST.

OF THE NATURE OF CRIMES; AND
THEIR PUNISHMENT.

WE
E are now arrived at the fourth and last branch of
these Commentaries; which treats of public wrongs, or
crimes and misdemesnors. For we may remember that, in
the beginning of the preceding volume 2, wrongs were divided
into two species: the one private, and the other public. Pri-
vate wrongs, which are frequently termed civil injuries, were
the subject of that entire book: we are now therefore, lastly,
to proceed to the consideration of public wrongs, or crimes
and misdemesnors; 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 punish-
ments; secondly, the persons capable of committing crimes ;
thirdly, their several degrees of guilt, as principals, or acces- [2]
saries; fourthly, the several species of crimes, with the pu-

nishment 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 misdemesnor.

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 centers 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 b.

с

THE knowledge of this branch of jurisprudence, which teaches the nature, extent, and degrees of every crime, and adjusts to it it's adequate and necessary penalty, is of the utmost importance to every individual in the state. For (as a very great master of the crown law has observed upon a similar occasion) no rank or elevation in life, no uprightness of heart, no prudence or circumspection of conduct, should tempt a man to conclude, that he may not at some time or other be deeply interested in these researches. The infirmities of the best among us, the vices, and ungovernable passions of others, the instability of all 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,

In proportion to the importance of the criminal law ought also to be the care and attention of the legislature in properly [3] forming and enforcing it. It should be founded upon prin

ciples that are permanent, uniform, and universal; and al-
ways 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
b See Vol. I. p. 268.
c Sir Michael Foster, pref. to rep.

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)

It 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.