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In all cases the crime includes an injury: every public offence is also a pri. vate wrong, and somewhat more; it affects the individual, and it likewise affects *6]
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 its 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 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.?So, also, in case of a public nuisance, as digging a ditch across a
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 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 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 ex perience discovered the necessity of rendering them subject to public and severu 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.-Christian,
The 9 Geo. I. c. 22, relating to killing and maiming cattle, is repealed by 4 Geo. IV. c. 54, by which the punishment of that offence is altered to transportation or imprisonment, and the necessity of proving malice against the owner is removed.--Cutty.
6 The civil right to sue for the injury the party has received in a case of felony is not in general merged or destroyed, but only suspended until he has performed his duty to society by an endeavour to bring the offender to justice: and after the party on whom suspicion was fixed has been convicted or acquitted, without collusion, the prosecutor may support an action for the same cause as that on which the criminal prosecution was founded. Styles, 346. 12 East, 409. Rep. T. Hardw. 350. 17 Ves. 329. No action can be brought, or bill in equity filed, in relation to a felony, until the offender has been duly tried for the offence, (id. ibid.,) or that every exertion has been made to bring him to justice.-Cutty.
The court of Common Pleas wili 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 vs. 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 vs. Barlow, 1 Man. & Ryl. 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
highway: this is punishable by indictment as a common offense 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 ample satisfaction, as well for the [*7 private injury as for the public wrong.
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 bim 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 misdemeanours 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 misdemeanours; 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 teinporal legis. lator to inflict discretionary penalties for crimes and misdemeanours.(h) 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. For 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
[*8 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)
As to offences merely against the laws of society, which are only mala pro hibita, 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 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 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, gires to the state exactly the same power, and no more, over all its members, as each indi(4) See Grotius, de j. 6. & p.1. 2, c. 20. Puffendorf, L. of Nat & N. b. 8, 1.3.
(*) Seu kok i. p. 25+. criminal information obtained by A., and made absolute, was no bar to the action. See also the note to that case, id. 278.-Cutty. Vɔl. II.-22
(1) Gen. iv. 14.
vidual member had naturally over himself or others : which has *occa.
sioned 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, “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 posi. tive 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 formerly seen,(m) owes its origin not to the law of nature, but merely to civil society.' .
The practice of inflicting capital punishments, for offences of human institution, is thus justified by that great and good man, Sir Matthew Hale :(n) "When offences grow enormous, frequent, and dangerous to a kingdom or state, destructive or highly pernicious to civil societies, and to the great insecurity and danger of the kingdom or its inhabitants, severe punishment, and even death itself, is 'necessary to be annexed to laws in many cases by the prudence of lawgivers.” It is therefore the enormity or dangerous tendency of the crijne that alone can warrant any earthly legislature in putting him to death *10]
that commits it. *It is not its frequency only, or the difficulty of other
wise preventing it, that will excuse our attempting to prevent it by a wanton effusion of human blood. For though the end of punishment is to deter men from offending, it never can follow from thence that it is lawful to deter them at any rate and by any means; since there may be unlawful methods of enforcing obedience even to the justest laws. Every humane legislator will be therefore extremely cautious of establishing laws that inflict the penalty of death, especially for slight offences or such as are merely positive. He will expect a better reason for bis so doing than that loose one which generally is given,-that it is found by former experience that no lighter penalty will be effectual. For is it found upon further experience that capital punishments are more effectual ? 'Was the vast territory of all the Russias worse regulated under the late empress Elizabeth than under her more sanguinary predecessors ? Is it now, under Catherine III., less civilized, less social, less secure? And yet we are assured, that neither of these illustrious princesses have, throughout their whole administration, inflicted the penalty of death ; and the latter has, upon full persuasion of its being useless, nay, even pernicious, given orders for abolishing it entirely throughout her extensive dominions.(0) But, indeed, were capital punishments proved by experience to be a sure and effectual remedy, that would not prove the necessity (upon which the justice and propriety depend) of inflicting them upon all occasions when other expedients fail
. I fear this reasoning would extend a great deal too far. For instance, the (1) Gen. ix. 6.
() Grand instructions for framing a new code of laws for
(m) Book ii. c. 1.
the Russian empire, & 210.
It is strange that the learned judge's conclusion-viz., that theft itself is not an offence against natural rights_did not lead him to suspect the fallacy of the position that the right of property owes its origin not to the law of nature, but merely to civil society, which he has also advanced in a former book, (2 book, p. 11,) and which I have there presumed to contro vert. If theft be not a violation of the law of nature and reason, it would follow that there is no moral turpitude in dishonesty. “Non igitur magis est contra na-uram norbus aut egestas aut quid hujusmodi quam detractio aut appetitio alieni.”-Cic. Thou shall not steal is cer lainly one of the first precepts both of nature and religion.-Christian.
damage done to our public roads by loaded wagons is universally allowed, and many laws have been made to prevent it; none of which have hitherto proved effectual. But it does not therefore follow that it would be just for the legislature to inflict death upon every obstinate carrier who defeats or eludes the provision of former statutes. Where the evil to be prevented is not adequate to the violence of the preventive, a sovereign that thinks seriously can never justify such a law to the dictates of *conscience and humanity. To shed the blood of our fellow-creature is a matter that requires the greatest de
[*11 liberation and the fullest conviction of our own authority: for life is the immediate gift of God to man; which neither he can resign, nor can it be taken from him, unless by the command or permission of Him who gave it; either expressly revealed, or collected from the laws of nature or society by clear and indisputable demonstration.
I would not be understood to deny the right of the legislature in any country to enforce its own laws by the death of the transgressor, though persons of some abilities have doubted it; but only to suggest a few hints for the consideration of such as are, or may hereafter become, legislators. When a question arises, whether death may be lawfully inflicted for this or that transgression, the wisdom of the laws must decide it; and to this public judgment or decision all private judgments must submit; else there is an end of the first principle of all society and government. The guilt of blood, if any, must lie at their doors who misinterpret the extent of their warrant, and not at the doorg of the subject, who is bound to receive the interpretations that are given by the sovereign power. 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 of the same kind. This is effected three ways: 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 pæna (as Tully(P) 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
[*12 power to do tuture 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 further 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. 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: therefore the pains of death, and perpetual disability by exile, slavery, or imprisonment, ought never to be inflicted but when the offender appears incorrigible: which may be collected either from a repetition of minuter offences, or from the perpetration of some one crime of deep malignity which of itself demonstrates a disposition without hope or probability of amendment: and in such cases it would be cruelty to the public to defer the punishment of such a criminal till he had an opportunity of repeating perhaps the worst of villanies.
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 war. ranted by the laws of nature and society, and such as appear to be the best calculated to answer the end of precaution against future offences. Hence it will be evident that what some have so highly extolled for its
() Pro Clucntio, 46.
equity, the lex talionis, or law of retaliation, can never be in all cases an ade quate or permanent rule of punishment. In some cases indeed it seems to be dictated by natural reason; as in the case of conspiracies to do an injury, or false accusations of the innocent; to which we may add that law of the Jews *13]
and Egyptians, mentioned by *Josephus and Diodorus Siculus, that who
ever without sufficient cause was found with any mortal poison in his custody should himself be obliged to take it. But, in general, the difference of persons, place, time, provocation, or other circumstances nay enhance or mitigate the offence; and in such cases retaliation can never be a proper measure of justice. If a nobleman strikes a peasant, all mankind will see that if a court of justice awards a return of the blow it is more than a just compensation. On the other hand, retaliation may sometimes be too easy a sentence; as, 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,(9) 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 adul. tery, and the like. And we may add, that those instances, wherein retaliation 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 highest *14]
penalty that man can intlict, *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,(r) 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 attemped 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. III. ch. 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 ex. perience, this punishment of taliation was rejected, and imprisonment adopted in its stead.(3) But though from what has been said it appears that there cannot be any (9) Vott. Antiq. b. c. 28.
(*) Beccar. c. 15.
(9) SUL. 38 Edw. III. c. .