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THE

WORKS

OF

THE HONOURABLE

JAMES WILSON, L. L. D.


LATE ONE OF THE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES, AND PROFESSOR OF LAW IN THE COLLEGE OF PHILADELPHIA.


PUBLISHED UNDER THE DIRECTION

OF

BIRD WILSON, ESQUIRE.


LEX FUNDAMENTUM EST LIBERTATIS, QUA FRUIMUR. LEGUM OMNES SERVI SUMUS, UT LIBERI ESSE POSSIMUS. CIC.


VOL. III.


PHILADELPHIA:

AT THE LORENZO PRESS, PRINTED FOR BRONSON AND CHAUNCEY.


1804.



DISTRICT OF PENNSYLVANIA: ― TO WIT.


BE IT REMEMBERED, That on the fifth day of July, in the twenty ninth year of the independence of the United States of America, BIRD WILSON, Esquire, of the said district, hath deposited in this office the title of a book, the right whereof he claims as proprietor, in the words following, to wit:


"The Works of the Honourable James Wilson, L. L. D. late one of the Associate Justices of the Supreme Court of the United states, and Professor of Law in the College of Philadelphia. Published under the direction of Bird Wilson, Esquire. Lex fundamentum est libertatis, qua fruimur. Legum omnes servi sumus, ut liberi esse possimus." Cic.


In conformity to the act of the Congress of the United States entitled "An act for the encouragement of learning by securing the copies of maps, charts and books to the authors and proprietors of such copies during the times therein mentioned; and also to the act entitled "An act supplementary to an act entitled "An act for the encouragement of learning, by securing the copies of maps, charts, and books to the authors and proprietors of such copies during the times therein mentioned," and extending the benefits thereof to the arts of designing, engraving, and etching historical and other prints."


D. CALDWELL, Clerk of the

District of Pennsylvania.



CONTENTS

OF THE

THIRD VOLUME.


LECTURES ON LAW.


PART III.


PAGE.


CHAPTER I.

Of the nature of crimes; and the necessity and proportion of punishments. 3


CHAPTER II.

Of crimes against the right of individuals to their property. 49


CHAPTER III

Of crimes against the right of individuals to liberty, and to reputation. 67


CHAPTER IV.

Of crimes against the right of individuals to personal safety. 77


CHAPTER V.

Of crimes immediately against the community. 95


CHAPTER VI.

Of crimes affecting several of the natural rights of individuals. 109


CHAPTER VII.

Of crimes against the rights of individuals acquired under civil government. 113


CHAPTER VIII.

Of the persons capable of committing crimes; and of the different degrees of guilt incurred in the commission of the same crime. 123


CHAPTER IX.

Of the direct means used by the law to prevent offences. 129


CHAPTER X.

Of the different steps prescribed by the law, for apprehending, detaining, trying, and punishing offenders. 137



On the history of property. 179


Considerations on the nature and extent of the legislative authority of the British parliament.

Published in the year 1774. 199


Speech delivered in the convention for the province of Pennsylvania,

held at Philadelphia, in January, 1775. 247


Speech delivered on 26th November, 1787, in the convention of Pennsylvania,

assembled to take into consideration the constitution framed,

by the federal convention, for the United States.271


Oration delivered on 4th July, 1788, at the procession formed at Philadelphia

to celebrate the adoption of the constitution of the United States. 297


Speech on choosing the members of the senate by electors;

delivered, on 31st December, 1769, in the convention of Pennsylvania,

assembled for the purpose of reviewing, altering,

and amending the constitution of the state. 313


Speech delivered, on 19th January, 1790, in the convention of Pennsylvania,

assembled for the purpose of reviewing, altering,

and amending the constitution of the state;

on a motion that "no member of congress from this state,

nor any person holding or exercising any office of trust or profit under the United States,

shall, at the same time, hold and exercise any office whatever in this state." 337


A charge delivered to the grand jury in the circuit court

of the United States for the district of Virginia, in May 1791. 355


Considerations on the Bank of North America.

Published in the year 1785. 395




LECTURES ON LAW,


DELIVERED IN THE


COLLEGE OF PHILADELPHIA,


IN THE YEARS ONE THOUSAND SEVEN HUNDRED AND NINETY,

AND ONE THOUSAND SEVEN HUNDRED AND NINETY ONE.



PART III.


CHAPTER I.


OF THE NATURE OF CRIMES;

AND THE NECESSITY

AND PROPORTION OF PUNISHMENTS.


HITHERTO, we have considered the rights of men, of citizens, of publick officers, and of publick bodies: we must now turn our eyes to objects less pleasing ― the violations of those rights must be brought under our view. Man is sometimes unjust: sometimes he is even criminal: injuries and crimes must, therefore, find their place in every legal system, calculated for man. One consolatory reflection, however, will greatly support us in our progress through this uninviting part of our journey: we shall be richly compensated when we reach its conclusion. The end of criminal jurisprudence is the prevention of crimes.


What is an injury? ― What is a crime? ― What is reparation? ― What is punishment? ― These are questions, which ought to be considered in a separate, and also in a connected, point of view. At some times, they have been too much blended. In some instances, the injury and the reparation have been lost in the crime and the punishment. In other instances, the crime and the punishment have, with equal impropriety, been sunk in the reparation and injury. At other times, they have been kept too much apart. The crime has been considered as altogether unconnected with the injury, and the punishment as altogether unconnected with reparation. In other instances, the reparation only has been regarded, and no attention has been given to the punishment: the injury only has been calculated; but no computation has been made concerning the crime.


An injury is a loss arising to an individual, from the violation or infringement of his right.


A reparation is that, which compensates for the loss sustained by an injury.


A crime is an injury, so atrocious in its nature, or so dangerous in its example, that, besides the loss which it occasions to the individual who suffers by it, it affects, in its immediate operation or in its consequences, the interest, the peace, the dignity, or the security of the publick. Offences and misdemeanors denote inferiour crimes.


A punishment is the infliction of that evil, superadded to the reparation, which the crime, superadded to the injury, renders necessary, for the purposes of a wise and good administration of government.


Concerning an injury and a reparation, and the measures by which each of them ought to be estimated, it will not be necessary to say much; because, with regard to them, much confusion or mistake has not been introduced into the theory or practice of the law.


Concerning crimes and punishments, and concerning the relation between a crime and an injury, and between punishment and reparation, the case is widely different indeed. On those subjects, an endless confusion has prevailed, and mistakes innumerable have been committed. On those subjects, therefore, it will be proper to be full; and it will certainly be attempted ― I promise not success in the attempt ― to be both accurate and perspicuous.


From an inattention or a disregard to the great principle ― that government was made for the sake of man, some writers have been led to consider crimes, in their origin and nature as well as in their degrees and effects, as different from injuries; and have, consequently, taught, that without any injury to an individual, a crime might be committed against the government. Suppose, says one of the learned commentators on Grotius, that one has done neither wrong nor injury to any individual, yet if he has committed something which the law has prohibited, it is a crime, which demands reparation; because the right of the superiour is violated, and because an injury is offered to the dignity of his character.1033 How naturally one mistake leads to another! A mistake in legislation produces one in criminal jurisprudence. A law which prohibits what is neither a wrong nor an injury to any one! What name does it deserve? We have seen1034 that a law which is merely harmless without being tyrannical, is itself a harm; and should be removed.


But this doctrine is unsupported by sound legal principle. Every crime includes an injury: every offence is also a private wrong: it affects the publick, but it affects the individual likewise. It is true indeed, that, in very gross injuries, we seldom hear of any satisfaction being awarded to the individual, for reasons, the propriety of which will, by and by, be examined. But in offences of an inferiour nature, the distinction, and, at the same time, the connexion between the crime and the injury is most accurately marked and preserved. For a battery, he who commits it may be indicted. Violence against the person of an individual is a disturbance of the publick peace. On this disturbance punishment may he inflicted. But in the crime and the punishment, the injury is not sunk, nor is the reparation lost. The party who has suffered the violence may bring his action against the party who has committed it: and recover in damages a satisfaction for the loss which has been sustained.


The doctrine, that a crime may be committed against the publick, without any injury being done to an individual, is as little consonant to the history, as it is to the principles of criminal jurisprudence. Among the Saxons, as we are informed by Mr. Selden, the most ancient way of proceeding, in criminal causes, was by an appeal of the party complaining. But afterwards, in cases which concerned damage, injury, or violence done to the body of a man or to his estate, the king ― who represented the publick ― was found to be therein prejudiced, beside the prejudice done immediately to the subject: and upon this ground, a way was found out to punish the offender by indictment, beside the satisfaction done to the party wronged.1035


In the very early periods of society, those actions, even the most atrocious, which now are viewed and prosecuted as solely crimes against the state, were considered and resented merely as private injuries. In those ages, the conceptions of men were too crude to consider an injury done to an individual, as a crime committed against the publick; they viewed it only as a prejudice to the party, or the relations of the party, who were immediately affected. The privilege of resenting private injuries, in the opinion of a very ingenious writer on the history of the criminal law,1036 was that private right which was the latest of being surrendered to society. An improvement in government, so opposite to a strong propensity of human nature, could not have been instantaneous. The progressive steps leading to its completion were slow and almost imperceptible.


Coincident, in a very considerable degree, with these sentiments and observations, is a part of the law and practice of England, which at this moment subsists in its full force ― I mean the law and practice concerning appeals, particularly appeals of death. An appeal is the party's private action, seeking satisfaction for the injury done him; and at the same time, prosecuting for the crown in respect of the offence against the publick. On an appeal, the benign prerogative of mercy cannot be exercised; because, saith the law,1037 the plaintiff has an interest in the judgment. This interest, however, may be released; and the release will be a bar to the proceedings on an appeal.


These observations, drawn from so many separate sources, combine in the result, that a crime against the publick has its foundation in an injury against an individual. We shall see, in the progress of our investigation, that as, in the rude ages of society, the crime was too much overlooked; so, in times more refined, there has been a disposition, too strong, to overlook the injury.


Concerning the standard, by which crimes should be measured in municipal law, there has been much diversity of sentiment among writers, even the wisest and most enlightened. The law of nature, it is admitted on all hands, measures crimes by the intention, and not by the event. Should a standard, different from that which has been established by unerring wisdom, he adopted by uninformed man? Should not that rule, which is observed by the law divine, be observed, in humble imitation, by laws which are human? It is said, not; and it is said, that this difference must be accounted for by those peculiar attributes of the divine nature, which distinguish the dispensations of supreme wisdom from the proceedings of human tribunals. A being whose all-seeing eye observes the inmost recesses of the heart, and whose outstretched arm no flight or stratagem can elude or escape ― such a being may consider and may punish every crime in exact proportion to the quantity of intrinsick guilt, which is contained in it. But with those to whom the trust and authority of human government is committed, the case is greatly different. Their power and their knowledge are limited by many imperfections: speed may remove, artifice may cover the object of punishment from their, view or their grasp: by them, therefore, crimes must be considered in proportion to the ease and security with which they are committed or concealed, and not in strict proportion to their degrees of inherent criminality. Such, or nearly such, seem to be the sentiments of Mr. Paley.1038


The Marquis of Beccaria goes farther: he thinks himself authorized to assert, that crimes are to be measured only by the injury done to society. They err, therefore, says he, who imagine that a crime is greater or less according to the intention of the person by whom it is committed; for this will depend on the actual impression of objects on the senses, and on the previous disposition of the mind; and both of these will vary in different persons, and even in the same person at different times, according to the succession of ideas, passions, and circumstances. Upon that system, it would be necessary to form, not only a particular code for every individual, but a new penal law for every crime. Men with the best intentions, do the greatest injury, and with the worst, the most essential services to society. That crimes are to be estimated by the injury done to society, adds he, is one of those palpable truths, which, though evident to the meanest capacity, yet, by a combination of circumstances, are known only to a few thinking men, in every nation and in every age.1039


Sir William Blackstone, in one part of his Commentaries, seems to adopt these sentiments. All crimes, says he, are to be estimated according to the mischiefs which they produce in civil society.1040


Mr. Eden, in one part of his book on the principles of penal law, tells us, agreeably to the same sentiments, that crimes are of temporal creation, and to be estimated in proportion to their pernicious effects on society:1041 in another part, he says, that, in some casts, it is necessary to punish the offence without any research into its motive; and that, in every case, it is impracticable for lawgivers to assume the divine attribute of animadverting upon the fact, only according to the internal malice of the intention:1042 in a third place, however, he expresses himself in the following manner: "It is true, that crimes are to be estimated, in some degree, by the actual mischief done to society; because the internal malignity of mankind is not within the cognizance of human tribunals. But if this position were received in its fullest latitude, it would prove too much; it would prove that every act of homicide is equally criminal; and that the intention is, in no case, to be considered:"1043 in a fourth place, he considers its flagitiousness as the standard, by which a crime should be measured; and informs us, that, by its flagitiousness, he means its abstract nature and turpitude, in proportion to which, the criminal should be considered as more or less dangerous to society:1044 in a fifth place, he intimates the same sentiment, that "the malignity of the fact is the true measure of the crime."1045


Is it not shocking to reason, says Mr. Dagge, and destructive of virtue, to contend, that the ill consequence of an act is more to be considered than its immorality? To disregard a crime, however heinous, because it may be supposed not to have a bad effect on society; and to punish slight offences severely, because they tend more immediately to disturb the publick peace, is to sacrifice moral equity to political expediency. But, in fact, there is no real necessity for making such a sacrifice. If we would effectually provide for the lasting peace of society, we should first regard private offences, which are the sources of publick crimes. The subtle distinctions, which casuists make between moral and political delinquencies, are offensive to common sense.1046


Concerning the standard by which punishments should be measured in municipal law, there has been, as might be expected, as much diversity of sentiment, as concerning the standard for the measure of crimes.


Publick utility, says Mr. Eden, is the measure of human punishments; and that utility is proportioned to the efficacy of the example.1047


Liberty, says Montesquieu,1048 is in its highest perfection, when criminal laws derive each punishment from the particular nature of the crime. Then the punishment does not flow from the capriciousness of the legislator, but from the very nature of the thing; and man uses no violence to man.


Among crimes of different natures, says Sir William Blackstone, those should be most severely punished, which are most destructive to the publick safety and happiness: and, among crimes of an equal malignity, those, which a man has the most frequent and easy opportunities of committing, which cannot be so easily guarded against as others; and which, therefore, the offender has the greatest inducement to commit.1049


Much to the same purpose are the expressions of Mr. Paley ― the punishment should be in a proportion compounded o the mischief of the crime, and the ease with which it is executed.1050


The end of human punishment, says Mr. Paley, in another place, should regulate the measure of its severity.1051 To the propriety of this rule every one will subscribe; but it throws us back upon another, concerning which there is an equal variety and opposition of sentiment.


Criminals, says Plato in his book concerning laws, are punished, not because they have offended, for what is done can never be undone, but that they may not offend.1052


The very learned Mr. Selden objects to this doctrine, and says, that the antecedent crime is the essence of punishment.1053


The amendment of the criminal is assigned by some as the end of punishment. To put it out of his power to do future mischief, is the end proposed by others. To deter from the imitation of his example, is that proposed by a third class of writers. Reparation to the injured, is an end recommended by a fourth class.


Almost all agree, that between crimes and punishments there ought to be a proportion: but how can this proportion be fixed among those, who are so much at variance with regard to the measure of the objects, between which it confessedly ought to subsist.


If there is so much diversity and contrariety of opinion respecting the principles, how much greater diversity and contrariety of conduct may we expect to find with regard to the execution, of the criminal law. Nay, how often shall we find those rules violated in its practice, the propriety of which is agreed in its theory.


The theory of criminal law has not, till lately, been a subject of much attention or investigation. The Marquis of Beccaria led the way. His performance derives much importance from the sentiments and principles, which it contains: it derives, perhaps, more from those, which its appearance has excited in others. It induced several of the most celebrated literati in Europe to think upon the subject. The science, however, is, as yet, but in a weak and infantine state. To convince you that it is so, I need only refer you to the unsatisfactory, nay, the contradictory sentiments, of which I have given you an account, with regard to the two great heads of crimes and punishments. That account has been extracted from the most celebrated writers on the subject ― from writers, indeed, who, on any subject, would deserve celebrity.


To give you a history of the practice of criminal law would be a task, not difficult, because the materials are very copious; but it would be very disgusting both to you and to me. I draw the character of this practice from one, who appears to have a head and a heart well qualified to feel and to judge upon the subject ― I mean the Author of the principles of penal law. "The perusal of the first volume of the English State Trials,"1054 says he, "is a most disgustful drudgery." "The proceedings of our criminal courts at this era" ― meaning that which preceded the revolution ― "are so disgraceful, not only to the nation, but to human nature, that, as they cannot be disbelieved, I wish them to be buried in oblivion. From oblivion, it is neither my duty nor inclination to rescue them." ― No; nor to rescue from oblivion the proceedings of other ages and of other countries, equally disgraceful and disgustful. I recite only a single instance.


Mr. Pope, in his picturesque and interesting retrospect of the barbarous reigns of the Conqueror and his son, asks, alluding to the laws of the forests ―


What wonder then, if beast or subject slain

Were equal crimes in a despotick reign?

Both, doom'd alike, for sportive tyrants bled,

But while the subject starv'd, the beast was fed.1055


Many, I dare say, have considered this as a fine fanciful description of the Poet. It has, however, been exceeded by the strict severity of fact. We are, in the Life of Mr. Turgot, told in plain and sober prose, that so rigorous were the forest lawss of France even so lately, that a peasant, charged with having killed a wild boar, alleged as an alleviation of the charge, that he thought it was a man.1056


In these lectures, I have had frequent occasion to observe and to regret the imperfection and the impropriety, which are seen too plainly in the civil codes and institutions of Europe: it is the remark ― it is the just remark of Sir William Blackstone, that, "in every country of Europe, the criminal law is more rude and imperfect than the civil."1057 Instead of being, as it ought to be, an emanation from the law of nature and morality; it has too often been avowedly and systematically the reverse. It has been a combination of the strong against the weak, of the rich against the poor, of pride and interest against justice and humanity. Unfortunate, indeed, it is, that this has been the case; for we may truly say, that on the excellence of the criminal law, the liberty and the happiness of the people chiefly depend.


By this time, you see very clearly, that I was well warranted to announce, even in the summary of my system, that the criminal law greatly needs reformation. I added ― In the United States, the seeds of reformation are, sown. Those seeds, and the tender plants which from some of them are now beginning to spring, let it be our care to discover and to cultivate. From those weeds, luxuriant and strong, with which they are still intermingled, and by which, if they continue so, they will indubitably be choked, let it be our business industriously to separate them. From those beasts of the forest, by whom, if left unguarded, they will unquestionably be devoured, let it be our effort vigorously to defend them.


In the fields of the common law, which, for ages past, have lain waste and neglected, some of those seeds and plants will, on an accurate inquiry, be found. In the gardens of the American constitutions, others, and the most choice of them, have been sown and planted by liberal hands.


The generical term used immemorially by the common law, to denote a crime, is felony. True indeed it is, that the idea of felony is now very generally and very strongly connected with capital punishment; so generally and so strongly, that if an act of parliament denominates any new offence a felony, the legal inference drawn from it is, that the offender shall be punished for it capitally. But this inference, whatever legal authority it may now have acquired, is by no means entitled to the merit of critical accuracy. At this moment, every felony does not, in England, receive a punishment which is capital: petit larceny is a felony. At this moment, one felony escapes in England, as it must in all other countries, every degree of punishment that is human: suicide is a felony. At the common law, few felonies, indeed, were punished with death.


Treason is now considered, both in legal and in vernacular language, as a species of crime distinct from that of felony; but originally it was not so considered. "In ancient time," says my Lord Coke,1058 "every treason was comprehended under the name of felony." Indeed it was so, down even to the time of Edward the third; for the famous statute of treasons, made in his reign, uses these expressions ― "treason or other felony."


It will be very important to ascertain the true meaning of a term, employed so extensively and so long by the common law, to convey the idea of a crime.


In order to ascertain the true meaning, it is frequently of importance to ascertain the true etymology, of a term; and in order to ascertain that of the term felony, much learned labour has been bestowed by juridical lexicographers and criticks.


Sir William Blackstone asserts that its original is undoubtedly feudal; and being so, we ought to look for its derivation in the Teutonick or German language; and he prefers that given by Sir Henry Spelman; according to whom, felon is taken from two northern words, fee, which signifies, as all know, the fief, feud, or beneficiary estate; and lon, which signifies price or value. Felony is, therefore, the same as pretium feudi, the consideration, for which a man gives up his fief; as we say, in common speech, such an act is as much as your life or estate is worth. "In this sense," says Sir William, "it will clearly signify the feudal forfeiture, or act, by which an estate is forfeited or escheats to the lord."1059 He mentions two other derivations, and adds ― "Sir Edward Coke, as his manner is, has given us a still stranger etymology; that it is, "crimen animo felleo perpetratum," with a bitter or gallish inclination.1060


The authority of Sir Henry Spelman, in matters of legal antiquity, is unquestionably respectable: it is unfortunate, on this as on many other occasions, that his Glossary, the work here cited, is not in my power; and, therefore, I cannot examine particularly what he says upon the subject.


Serjeant Hawkins, so noted for his painful accuracy and his guarded caution, cites, in his treatise of the pleas of the crown, both the places which are cited by the Author of the Commentaries. The Serjeant had probably examined both: he follows the description of my Lord Coke. From this, I infer one of the two things ― that Mr. Hawkins either found something in the Glossary, which prevented his assent to the conclusion drawn from it, or preferred the authority of my Lord Coke to that of Sir Henry Spelman. Thus, on one side we find Sir Henry Spelman and Sir William Blackstone; on the other, my Lord Coke and Serjeant Hawkins. In each scale of authority the weight is great; but, in both, it is equal: the beam of decision inclines at neither end.


If an estate could be purchased, instead of being forfeited, by a felony, I can easily conceive how the crime might be viewed as the consideration of the purchase: if a fee signified a crime, instead of signifying a fief, I can easily conceive how the estate might be viewed as the value forfeited by its commission. But the "pretium feudi," applied in the manner and arrangement in which the application is made here, appears, in my humble conception, to be etymology inverted. Thus stand the propriety and the authority of the derivation adopted by the Author of the Commentaries.


My Lord Coke, when he refers the meaning and the description of felony to the motive, and not to the event, to the disposition which produced it, and not to the forfeiture which it incurs, cites, in the margin, the authority of Glanville, the oldest book now extant in law, and two very ancient statutes; one made in the reign of Henry the third; the other in that of his son, Edward the first. With regard to Glanville, there must be some numerical mistake in the margin; for it refers us to the fifteenth chapter of the fourteenth book: in that book, there are only eight chapters. The statutes I have examined: you shall judge whether they support that meaning of felony, for the truth of which they are cited.


The first is the twenty fifth chapter of the statute of Marlbridge, which was made in the fifty second year of Henry the third. It is very short. "In future, it shall not, by our justices, be adjudged murder, where it is found misfortune only; but it shall take place as to such as are slain by felony ― interfectis per feloniam ― and not otherwise." Felony is here put most obviously in a contrasted opposition to misfortune; intention to accident. But what is peculiarly unfortunate for the etymology of Sir William Blackstone, a forfeiture was incurred at that time, and, according to the reprehensible theory retained in England for the sake of fees and not for the sake of justice, a forfeiture is still incurred, where a homicide happens by misfortune,1061 as well as where it is committed feloniously. If felony, therefore, "signifies clearly," as he says, "such a crime as works a forfeiture of the offender's lands or goods," the distinction mentioned in the statute would be absurd and ridiculous; referring felony to the principle, and not to the consequences of the fact, the provision in the statute is just and humane.


The other statute cited by my Lord Coke is the sixteenth chapter of Westminster the first, made in the third year of the first Edward. It distinguishes between those criminals who may be bailed, and those who ought not to be bailed. In the latter class are ranked those, who are taken for house burning feloniously done ― "felonicusement fait." ― Does this direct our view to the punishment, or to the intention?


But I am able to produce instances still more ancient and still more strong. The Mirrour of Justices, as has been mentioned oftener than once, contains a collection of the law, chiefly as it stood before the conquest; and consequently before the feudal system was introduced into England. In that collection there is a chapter concerning incendiaries: they are thus described ― Incendiaries are those who burn a city, a town, a house, a man, a beast or other chattels of their felony ― "de lour felony," ― in time of peace for hatred or vengeance. Do the words of their felony describe that principle, which gives the crime its "body and its form?" or do they relate to a feudal forfeiture, then unknown?


But to put the matter in a light still more striking and clear: in the next sentence, a case is supposed, in which the intention existed, the fact was committed; but the effect did not take place; and, consequently, the punishment was not to be inflicted: yet the action is said to be done feloniously. "If one puts fire to a man feloniously ― felonicusement ― so that he is scorched or hurt, but not killed by the fire; it is not a capital crime."1062


I suggest another argument, the legal force of which will, by every professional gentleman, be seen immediately to be irresistible. In every indictment for felony, the fact charged must be laid to have been done feloniously. To express this meaning, no other term in our language is legally adequate.1063 The antiquity of indictments, and the high authority of their essential forms, I pretend not to ascertain or to circumscribe.


But Sir William Blackstone, in this passage, is opposed not only by principle, by precedent, and by other authority; he is, I think, clearly opposed by his own. He says here, as we have seen, that felony clearly signifies the feudal forfeiture, or act, by which an estate is forfeited, or escheats to the lord. And yet, in another place,1064 he recommends great care in distinguishing between escheat to the lord, and forfeiture to the king; and traces them very properly to different sources. "Forfeiture of lands," says he, "and of whatever else the offender possessed, was the doctrine of the old Saxon law, as a part of the punishment for the offence; and does not at all relate to the feudal system, nor is the consequence of any signiory or lordship paramount; but being a prerogative vested in the crown, was neither superseded nor diminished by the introduction of the Norman tenures; a fruit and consequence of which escheat must undoubtedly be reckoned. Escheat, therefore, operates in subordination to the more ancient and superiour law of forfeiture.


"The doctrine of escheat upon attainder, taken singly, is this, that the blood of the tenant, by the commission of any felony (under which denomination all treasons were formerly comprised) is corrupted and stained, and the original donation of the feud is thereby determined, it being always granted to the vassal on the implied condition of dum bene se gesserit. Upon the thorough demonstration of which guilt by legal attainder, the feudal covenant and mutual bond of fealty are held to be broken, the estate instantly falls back from the offender to the lord of the fee, and the inheritable quality of his blood is extinguished and blotted out for ever. In this situation the law of feudal escheat was brought into England at the conquest, and in general superadded to the ancient law of forfeiture. In consequence of which corruption and extinction of hereditary blood, the land of all felons would immediately revest in the lord, but that the superiour law of forfeiture intervenes, and intercepts it in its passage; in case of treason for ever; in case of other felony, for only a year and a day; after which time, it goes to the lord in a regular course of escheat, as it would have done to the heir of the felon, in case the feudal tenures had never been introduced. And that this is the true operation and genuine history of escheats, will most evidently appear from this incident to gavelkind lands (which seem to be the old Saxon tenure) that they are in no case subject to escheat for felony, though they are liable to forfeiture for treason."


Instead, therefore, of considering felony as a feudal forfeiture or escheat, we are here taught, and properly taught, to view them as flowing from different sources, and, in their operations, not only distinct, but incompatible.


Having thus traced the true meaning of felony, not to the event or part of the punishment, but to the principle and disposition from which it proceeds; our next step will be to ascertain, as plainly and as correctly as possible, the nature and character of that principle and disposition. It is characterized by the epithet felleo. Some derive it from the Latin verb fallo, which signifies, to deceive, others from the Greek word fhlej, which signifies an impostor or deceiver. In language, these derivations are different: in sentiment, they are the same. Perhaps they may lead us to as just a conception as can well be formed of felony ― the generical term employed by the common law to denote a crime.


Without mutual confidence between its members, society, it is evident, could not exist. This mutual and pervading confidence may well be considered as the attractive principle of the associating contract. To place that confidence in all the others is the social right, to deserve that confidence from all the others is the social duty, of every member. To entertain a disposition, in which that confidence cannot with propriety be placed, is a breach of the social duty, and a violation of the social right: it is a crime inchoate. When an injury, atrocious in its nature, or evil in its example, is committed voluntarily against any one member, the author of that voluntary injury has, by his conduct, shown to all, that their right is violated; that his duty is broken; that they cannot enjoy any longer their right of placing confidence in him; that he entertains a disposition unworthy of this confidence; that he is false, deceitful, and treacherous: the crime is now completed.


A disposition, regardless of social duty to all, and discovered by an injury, voluntary, and atrocious or dangerous, committed against one ― this is a crime against society. Neither the disposition separated from the injury, nor the injury separated from the disposition, constitutes a crime. But though both the ingredients are necessary, they have not an equal operation in forming that character, from which a crime receives its denomination. In the consideration of crimes, the intention is chiefly to be regarded.


As the injuries, and the breaches of social trust and confidence, which we have mentioned, may relate to a great variety of objects, and, in their own nature, may be more or less aggravated, it follows, that crimes may be distinguished into many different species, and are susceptible of many different degrees.


Some think, that, at common law, the disposition, separated from the injury, constituted a crime. The saying, that "voluntas reputabitur pro facto," seems to have given rise to this opinion. On a close examination, however, it will, I imagine, appear, that, in all the cases, on which the opinion is founded, and from which the saying is drawn, an injury was done, though not the injury intended to be done.


A very ancient case is reported in the following manner. A man's wife went away with her adulterer; and they compassed the death of the husband; and as he was riding towards the sessions of oyer and terminer and gaol delivery, they assaulted and beat him with weapons, so that he fell down as dead: upon this they fled. The husband recovered, and made hue and cry, and came to the sessions, and showed all this matter to the justices; and, upon the warrant of the justices, the woman and her adulterer were taken, indicted, and arraigned. All this special matter was found by a verdict; and it was adjudged, that the man should be hanged, and the woman burnt.1065 Here, indeed, the injury intended and compassed ― for to compass is, in legal understanding, to intend ― was not carried into complete execution: an atrocious injury, however, was perpetrated.


Another case is mentioned to the following purpose. A young man was arraigned, because he intended to have stolen his master's goods, and came to his master's bed, where he lay asleep, and, with a knife, attempted, with all his force, to have cut his throat; and, thinking that he had indeed cut it, fled; upon this, the master cried out; and his neighbours apprehended the young man. All this matter was found by a special verdict; and, in the end, the young man was adjudged to be hanged. Quia voluntas reputabitur pro facto. But upon this case it is to be observed, that there was much more than mere intention: a barbarous outrage was committed on the person of a man; and was even thought by the aggressor to have been fully completed in its most extreme extent. For the young man, it is said, thought that he had indeed cut his master's throat. Accordingly, my Lord Coke says upon this subject, that it was not a bare compassing or plotting of the death of a man, either byword, or even by writing; but that some overt deed to manifest that compassing or plotting was necessary.


In a species of high treason, and in a species of felony, the rule is still observed ― that the intention manifested by a degree of injury, though not the degree intended, constitutes the crime. This is the case in compassing the death of the king. Though this intention be not completed by his death; the crime is completed by what is called an overt act, manifesting that intention by injurious and disloyal conduct. Indeed this rule is so strictly observed in this species of treason, that even when the intention is carried into full effect by putting the king to death, this completion itself, connected with the intention, is not considered as constituting the crime it is viewed only as the injurious and overt act which manifests that intention. Agreeably to these principles, the regicides of Charles the first were indicted as compassing his death, and the fact of beheading him was specified and made use of as one of the overt acts to prove this compassing.1066


The species of felony, in which the rule above mentioned still governs, is burglary. A burglar, says my Lord Coke, is, by the common law, a felon, who, in the night, breaketh and entereth into a mansion house of another, with intent to commit some felony within it.1067 The intention in this crime is to commit a felony; but, in order to constitute the crime, it is not necessary that the intention should be executed; the injurious acts done at the time and the place and in the manner described are sufficient: nay more; if the intention be completed by committing the felony, yet, if it be not committed at the time and the place, and in the manner described, it is not a burglary, though it is a felony of another species.


The foregoing cases, the view under which I have stated them, and the observations which I have drawn from them, show strongly the spirit of the common law in its estimation of crimes. In those cases, the felony or treason is traced to the malignity of the principle, not to the mischief of the consequences: the crime is constituted, though the event fail.


In other cases, indeed, the completion of the event is necessary to the constitution of the crime; but even in these, the intention is much more considered than the act. "Actus non facit reum, nisi mens sit rea,"1068 is, I believe, a rule of immemorial antiquity in the common law. If, indeed, it is an errour, as the Marquis of Beccaria alleges it to be, to think a crime greater or less according to the intention of him by whom it is committed, it is, in the common law, an errour of the most inveterate kind; it is an errour which the experience of ages has not been able to correct. "Justitia," said Bracton many hundred years ago, "est voluntarium bonum; nec enim potest dici bonum proprie, nisi intercedente voluntate: tolle enim voluntatem, et erit omnis actus indifferens. Affectio quidem tua nomen imponit operi tuo. Crimen non contrahitur nisi voluntas nocendi1069 intercedat. Voluntas et propositum distinguunt maleficia. Furtum omnino non committitur sine affectu furandi. In maleficiis spectatur voluntas et non exitus."1070


But, on one hand as well as on the other, there is an extreme. The intention governs; the intention communicates its colours to the act: but the act ― the injurious act must be done. Abstract turpitude is not, I apprehend, a subject of cognizance in a human forum. The breach of our duty to man and to society alone is the object of municipal reprehension. For those sentiments, for those principles, nay for those actions, by which no other member of society can be affected, no one member is accountable to the others. For such sentiments, for such principles, and for such actions, he is amenable only to the tribunal within, and the tribunal above him. In the human code we have seen it to be a rule, that without an injury there is no crime.


Let us not, however, confine our conceptions of injury to the loss or to the risk merely of property. Of injury, all our rights, natural and civil, absolute and relative, are susceptible. Every injurious violation, therefore, of any of those rights may lay the foundation of a crime. The strings of society are sometimes stretched in the nicest unison: strike one, and all emit a complaining tone. Is a single member of society menaced? He who threatens is bound in a recognisance to keep the peace towards every other citizen, as well as towards him, to whom the immediate cause of alarm was given.1071


I have now traced and described the principles of the common law with regard to the measure of crimes. We have seen with what wise and experienced caution its rules are guarded from every extreme. The result seems to be, that the common law estimates crimes by the design chiefly, but pays a proportionate attention to the fact ― by the malignity, without overlooking the injury, of the transaction. After ideal perfection in her calculations concerning those amounts and proportions she aspires not; she is satisfied with that practical degree of accuracy, which a long and careful experience can attain.


From the consideration of crimes I pass to the consideration of punishments. On this subject some rules, and some valuable ones too, may be gleaned from the principles and the practice of the common law; but we must have recourse chiefly to those which are founded on our new but improved political establishments, and to those which result from the general principles of criminal jurisprudence.


Every crime, we have seen, includes an injury: this I consider as a leading maxim in the doctrine of crimes. In the punishment of every crime, reparation for the included injury ought to be involved: this I consider as a leading maxim in the doctrine of punishments.


In this particular, the law of England is defective to a degree both gross and cruel. The father of a family, whose subsistance depends on his personal industry, is, in the arms of his wife, and amidst his surrounding children, stabbed by the order of an insolent and barbarous neighbour. The miserable sufferers by the event are the miserable witnesses of the crime. The assassin, who has ordered it, is opulent and powerful. To the honour of the English law and of its administration be it said, that no degree of opulence or power will purchase or command impunity to the guilty: this assassin will feel its avenging arm. But to the honour of the English law and of its administration can it be added, that every degree of injury shall find its proportioned degree of reparation; and that as the assassin is not above its power, so those who suffer by the assassination are not beneath its care? No. This addition cannot be made. The widow and the orphans, who were the witnesses of the crime and the sufferers by the loss, are recognized in the former, but not in the latter character. They attend to give their testimony on the trial. The rich culprit is condemned as he ought to be. They apply to obtain reparation for the loss ― of the life? That is irreparable ― of the industry of their husband and father, from the ample patrimony of the criminal, who occasioned the loss? To this application, reasonable and just, what is the answer which must be given in the spirit of the law? His property is forfeited by the crime; no funds remain to make you reparation for your loss. They are dismissed, without being reimbursed the expense of their attendance in consequence of their duty and the order of the law; for the king pays no costs, Can this be right?


It was, in ancient times, ordered otherwise and better. In the early part of our juridical history, we find that a part of the composition or forfeiture for homicide was given to the relations of the person deceased.1072 We find likewise, that, in those times, penalties in cases of personal injury had so far the nature of a civil redress, that they were given as a compensation to the person injured.1073 Thus it was among the ancient Saxons. Reparation, indeed, was one great object in the Anglo-Saxon system of criminal law. The principle may be traced to the Germans as described by Tacitus.1074 "Recipitque satisfactionem universa domus." In one of the very early laws of Pennsylvania, it is directed that "those next of kin shall be considered in the loss occasioned by the death of the party killed."1075


Another quality of the Saxon jurisprudence in criminal matters deserves our attention ― I add, our imitation they inflicted very few capital punishments.1076 Such was the case, we are told, formerly in Scotland; such was it originally in Ireland; and such was it anciently in Wales.1077


In every case before judgment, the Romans allowed an accused citizen to withdraw himself from the consequences of conviction into a voluntary exile. To this institution, the former practice of abjuration in England bore a strong resemblance. This was permitted, as my Lord Coke says, when the criminal chose rather "perdere patriam, quam vitam."1078 On the same principles, a liberty was given, in Greece, to a person accused to disappear after his first defence, and retire into voluntary banishment ― in the language of the English law, to abjure the realm after the indictment was found.1079


Sabacos, one of the legislators of Egypt, went still further. He abolished capital punishments, and ordained, that such criminals as were judged worthy of death should be employed in the publick works. Egypt, he thought, would derive more advantage from this kind of punishment; which, being imposed for life, appeared equally adapted to punish and to repress crimes.1080


Punishments ought unquestionably to be moderate and mild. I know the opinion advanced by some writers, that the number of crimes is diminished by the severity of punishments. I know, that if we inspect the greatest part of the criminal codes, their unwieldy size and their ensanguined hue will force us to acknowledge, that the opinion has been general and prevalent. On accurate and unbiassed examination, however, it will appear to be an opinion unfounded and pernicious, inconsistent with the principles of our nature, and, by a necessary consequence, with those of wise and good government.


So far as any sentiment of generous sympathy is suffered, by a merciless code, to remain among the citizens, their abhorrence of crimes is, by the barbarous exhibitions of human agony, sunk in the commiseration of criminals. These barbarous exhibitions are productive of another bad effect ― a latent and gradual, but a powerful, because a natural, aversion to the laws. Can laws, which are a natural and a just object of aversion, receive a cheerful obedience, or secure a regular and uniform execution? The expectation is forbidden by some of the strongest principles in the human frame. Such laws, while they excite the compassion of society for those who suffer, rouse its indignation against those who are active in the steps preparatory to their sufferings.


The result of those combined emotions, operating vigorously in concert, may be easily conjectured. The criminal will probably be dismissed without prosecution, by those whom he has injured. If prosecuted and tried, the jury will probably find, or think they find, some decent ground, on which they may be justified or, at least, excused in giving a verdict of acquittal. If convicted, the judges will, with avidity, receive and support every, the nicest, exception to the proceedings against him; and, if all other things should fail, will have recourse to the last expedient within their reach for exempting him from rigorous punishment ― that of recommending him to the mercy of the pardoning power. In this manner the acerbity of punishment deadens the execution of the law.


The criminal, pardoned, repeats the crime, under the expectation that the impunity also will be repeated. The habits of vice and depravity are gradually formed within him. Those habits acquire, by exercise, continued accessions of strength and inveteracy. In the progress of his course, he is led to engage in some desperate attempt. From one desperate attempt he boldly proceeds to another; till, at last, he necessarily becomes the victim of that preposterous rigour, which repeated impunity had taught him to despise, because it had persuaded him that he might always escape.


When, on the other hand, punishments are moderate and mild, every one will, from a sense of interest and of duty, take his proper part in detecting, in exposing, in trying, and in passing sentence on crimes. The consequence will be, that criminals will seldom elude the vigilance, or baffle the energy of publick justice.


True it is, that, on some emergencies, excesses of a temporary nature may receive a sudden check from rigorous penalties: but their continuance and their frequency introduce and diffuse a hardened insensibility among the citizens; and this insensibility, in its turn, gives occasion or pretence to the further extension and multiplication of those penalties. Thus one degree of severity opens and smooths the way for another, till, at length, under the specious appearance of necessary justice, a system of cruelty is established by law. Such a system is calculated to eradicate all the manly sentiments of the soul, and to substitute in their place dispositions of the most depraved and degrading kind.


The principles both of utility and of justice require, that the commission of a crime should be followed by a speedy infliction of the punishment. The association of ideas has vast power over the sentiments, the passions, and the conduct of men. When a penalty marches close in the rear of the offence, against which it is denounced, an association, strong and striking, is produced between them, and they are viewed in the inseparable relation of cause and effect. When, on the contrary, the punishment is procrastinated to a remote period, this connexion is considered as weak and precarious, and the execution of the law is beheld and suffered as a detached instance of severity, warranted by no cogent reason, and springing from no laudable motive.


It is just, as well as useful, that the punishment should be inflicted soon after the commission of the crime. It should never be forgotten, that imprisonment, though often necessary for the safe custody of the person accused, is, nevertheless, in itself a punishment ― a punishment galling to some of the finest feelings of the heart ― a punishment, too, which, as it, precedes conviction, may be as undeserved as it is distressing.


But imprisonment is not the only penalty, which an accused person undergoes before his trial. He undergoes also the corroding torment of suspense ― the keenest agony, perhaps, which falls to the lot of suffering humanity. This agony is by no means to be estimated by the real probability or danger of conviction: it bears a compound proportion to the delicacy of sentiment and the strength of imagination possessed by him, who is doomed to become its prey.


These observations show, that those accused of crimes should be speedily tried; and that those convicted of them should be speedily punished. But with regard to this, as with regard to almost every other subject, there is an extreme on one hand as well as on the other; and the extremes on each hand should he avoided with equal care. In some cases, at some times, and under some circumstances, a delay of the trial and of the punishment, instead of being hurtful or pernicious, may, in the highest degree, be salutary and beneficial, both to the publick and to him who is accused or convicted.


Prejudices may naturally arise, or may be artfully fomented, against the crime, or against the man who is charged with having committed it. A delay should be allowed, that those prejudices may subside, and that neither the judges nor jurors may, at the trial, act under the fascinating impressions of sentiments conceived before the evidence is heard, instead of the calm influence of those which should be its impartial and deliberate result. A sufficient time should be given to prepare the prosecution on the part of the state, and the defence of it on the part of the prisoner. This time must vary according to different persons, different crimes, and different situations.


After conviction, the punishment assigned to an inferiour offence should be inflicted with much expedition. This will strengthen the useful association between them; one appearing as the immediate and unavoidable consequence of the other. When a sentence of death is pronounced, such an interval should be permitted to elapse before its execution, as will render the language of political expediency consonant to the language of religion.


Under these qualifications, the speedy punishment of crimes should form a part in every system of criminal jurisprudence. The constitution of Pennsylvania1081 declares, that in all criminal prosecutions, the accused has a "right to a speedy trial."


The certainty of punishments is a quality of the greatest importance. This quality is, in its operation, most merciful as well as most powerful. When a criminal determines on the commission of a crime, he is not so much influenced by the lenity of the punishment, as by the expectation, that, in some way or other, he may be fortunate enough to avoid it. This is particularly the case with him, when this expectation is cherished by the example or by the experience of impunity. It was the saying of Solon, that he had completed his system of laws by the combined energy of justice and strength. By this expression he meant to denote, that laws, of themselves, would be of very little service, unless they were enforced by a faithful and an effectual execution of them. The strict execution of every criminal law is the dictate of humanity as well as of wisdom.


By this rule, important as well as general, I mean not to exclude the pardoning power from my system of criminal jurisprudence. That power ought to continue till the system and the proceedings under it become absolutely perfect ― in other words ― it ought to continue while laws are made and administered by men. But I mean that the exercise of the pardoning power should be confined to exceptions, well ascertained, from the general rule. Confined in this manner, instead of shaking the truth or diminishing the force of the rule, the exercise of the power to pardon will confirm the former and increase the latter.


Need I mention it as rule, that punishments ought to be inflicted upon those persons only, who have committed crimes ― that the innocent ought not to be blended in cruel and ruinous confusion with the guilty?


Yes; it is necessary to mention this as a rule: for, however plain and straight it is, when viewed through the pure and clear ether of reason and humanity, it has not been seen by those whom pride and avarice have blinded; nay, it has been represented as a rule, crooked and distorted, by those who have beheld it through the gross and refracting atmosphere of false policy and false philosophy. The doctrines of forfeiture and corruption of blood have found their ingenious advocates, as well as their powerful patrons.


There have been countries and times ― there still are countries and times, when and where the rule, founded injustice and nature, that the property of the parent is the inheritance of his children, has been intercepted in its benign operation by the cruel interference of another rule, founded in tyranny and avarice ― the crimes of the subject are the inheritance of the prince. At those times, and in those countries, an insult to society becomes a pecuniary favour to the crown; the appointed guardian of the publick security becomes interested in the violation of the law; and the hallowed ministers of justice become the rapacious agents of the treasury.


A poisoned fountain throws out its bitter waters in every direction. This rule, hostile to the nearest domestick connexions, was unfriendly also to the safety of the publick. If the inheritance was reaped by the prince; it was, by him, deemed a matter of small moment, that impunity was stipulated for the crime. Accordingly, we are told, that, in the thirteenth century, one of the methods, by which the kings of England and of other parts of Europe supplied their exchequers, was the sale of pardons for crimes.1082 When crimes were the sources of princely wealth, it is no wonder if they were objects of princely indulgence. In this manner we may naturally account for the disorder and violence, which, in those ages, prevailed so universally over Europe.


The law of forfeiture it has been attempted to defend by considerations drawn from utility, and also from natural justice. The high authority of Cicero is also1083 produced upon this occasion ― "Nec vero me fugit, quam sit acerbum, parentum scelera filiorum poenis lui; sed hoc praeclare legibus comparatum est, ut caritas liberorum amiciores parentes reipublicae redderet."1084 Amicus Cicero ― sed magis amica veritas. For the high authority of Cicero, I certainly entertain a proportionate degree of respect; but implicit deference should be paid to none. Besides; in the passage quoted, Cicero does not speak in a character of authority. He decides not as a judge: he pleads his own cause as a culprit; he defends, before Brutus, a rigorous vote, which he had given in the senate, against the sons of Lepidus.


But farther; upon a closer investigation, it will, perhaps, be found, that the principle of policy, on which Cicero rests his defence, as it certainly is not of the most generous, neither is it of the most enlarged kind; since forfeitures, far from preventing publick crimes and publick dangers, may have the strongest tendency to multiply and to perpetuate both. When the law says, that the children of him, who has been guilty of crimes, shall be bereaved of all their hopes and all their rights of inheritance; that they shall languish in perpetual indigence and distress; that their whole life shall be one dark scene of punishment, unintermitted and unabating; and that death alone shall provide for them an asylum from their misery ― when such is the language, or such is the effect of the law; with what sentiments must it inspire those, who are doomed to become its unfortunate though unoffending victims? ― with what sentiments must it inspire those, who from humanity feel, or by nature are bound to take, an interest in the fortunes and in the fate of those victims, unfortunate though unoffending? With sentiments of pain and disgust ― with sentiments of irritation and disappointment ― with sentiments of a deadly feud against the state which has adopted, and, perhaps, against the citizens also who have enforced it.


Vain is the attempt to range the cold and timid suggestions of policy against the vivid and the indelible feelings of nature, and against the warm though impartial dictates of humanity. Who will undertake to satisfy an innocent son, that he is the victim ― who will undertake to persuade his relations ― his virtuous ― his patriotick ― his meritoriously patriotick relations, that one so nearly connected with them is the victim, whom the publick good indispensably demands to be offered up as a sacrifice to atone for the guilt of his father? The sons of Lepidus were the children, of the sister of Brutus. "Contra patrem Lepidum Brutus avunculus," says he very naturally in his answer to Cicero.


An attempt has been likewise made to support the law of forfeiture on the foundation of natural justice.1085 "All property," says Sir William Blackstone,1086 "is derived from, society, being one of those civil1087 rights which are conferred upon individuals, in exchange for that degree of natural freedom, which every man must sacrifice when he enters into social communities. If therefore a member of any national community violates the fundamental contract of his association, by transgressing the municipal law, he forfeits his right to such privileges as he claims by that contract; and the state may very justly resume that portion of property, or any part of it, which the laws have before assigned him. Hence in every offence of an atrocious kind, the laws of England have exacted a total confiscation of the movables or personal estate; and in many cases a perpetual, in others only a temporary, loss of the offender's immovables or landed property; and have vested them both in the king, who is the person supposed to be offended, being the only visible magistrate in whom the majesty of the publick resides."


It has often been said, that, at elections, the people of England sell their liberty for their own money; but this, I presume, is the first time that this kind of exchange has been brought forward as a fundamental article of their original contract.


A philosophizing is, on some occasions, an unfortunate turn. It was, we are told, an opinion long received in China, that the globe of the earth was supported on the back of an elephant. The people were satisfied and inquired no farther. An ingenious philosopher, however, was not satisfied so easily. If the earth, reasoned he, must be supported on the back of an elephant, pari ratione, the elephant must stand on the back of something else. Exactly fitted for his design, he found a broad backed tortoise. He placed the elephant upon it, and published his new theory of the manner in which the globe was supported. Unfortunately, the spirit of his ars philosophandi caught; and he was asked ― on whose back will you place the tortoise? To this a satisfactory answer is not yet found in the history of this Chinese philosophy.


The sceptres of princes required a support: the political creed of Europe rested them on forfeitures. The people paid and inquired not. But the attempt is now made to find a rational foundation for forfeitures: they are rested on property as a civil, and not as a natural right.


In both instances, the mistake was made, and the wrong direction was pursued, in the first step which was taken. Forfeitures for crimes, according to the true principles of political philosophy, were a foundation as improper for the revenue of princes, as an elephant, according to the true principles of natural philosophy, was inadequate to sustain the weight of the globe.


But the investigation of the doctrine ― that property is a civil right ― will, as I have already mentioned, find its appropriated place in the second division of my system.


The observations which we have made are equally applicable to the forfeiture of dower, as to the forfeiture of inheritance.


Corruption of blood is another principle, ruinous and unjust, by which the innocent are involved in the punishment of the guilty. It extends both upwards and downwards. A person attainted cannot inherit lands from his ancestors: he cannot transmit them to any heir he even obstructs all descents to his posterity, whenever they must, through him, deduce their right from a more remote ancestor.1088


This unnatural principle ― I call it unnatural, because it dissolves, as far as human laws can dissolve, the closest and the dearest ties of nature ― this unnatural, principle was introduced by the feudal system, pregnant with so many other principles of the most mischievous kind: and it still continues to disgrace the criminal jurisprudence of England. It begins now, however, to be very generally deserted as to its principle. The ingenious and elegant Mr. Eden, who seems to cling to forfeiture, at least in a qualified degree, as "to a branch of the penal system, which will not be suffered to fall from the body of our law, without serious consideration,"1089 admits very freely, that it is not so easy to reconcile, either to reason or benevolence, that corruption of blood, by which the inheritable quality is for ever extinguished.1090 Sir William Blackstone intimates a very laudable wish, that the whole doctrine may, in England, be antiquated by one undistinguishing law.1091


This subject of extending punishments beyond the guilty, I conclude with a passage from one of the laws of Arcadius and Honorius, the Roman emperours. "Sancimus ibi esse paenam, ubi et noxa est; propinquos, natos, familiares, procul a calumnia submovemus, quos reos sceleris societal non facit. Nec enim affinitas, vel amicitia, nefarium crimen admittunt; peccato igitur suos teneant auctores; nec ulterius progrediatur metus quam reperiatur delictum."1092


As the punishment ought to be confined to the criminal; so it ought to bear a proportion, it ought, if possible, to bear even an analogy, to the crime.1093 This is a principle, the truth of which requires little proof; but the application of which requires much illustration.


"It is not only," says the Marquis of Beccaria, "the common interest of mankind that crimes should not be committed; but it is their interest also that crimes of every kind should be less frequent, in proportion to the mischief which they produce in society. The means, therefore, which the legislature use to prevent crimes, should be more powerful in proportion as they are destructive of the publick safety and happiness. Therefore there ought to be a fixed proportion between punishments and crimes." "A scale of crimes," adds he, "may be formed, of which the first degree should consist of such as tend immediately to the dissolution of society; and the last, of the smallest possible injustice done to a private member of that society."1094


To a scale of crimes, a corresponding scale of punishments should be added, each of which ought to be modified, as far as possible, according to the nature, the kind, and the degree of the crime, to which it is annexed. To select, where it can be clone, a punishment analogous to the crime, is an excellent method to strengthen that association of ideas, which it is very important to establish between them.


In the graduation of each of these scales, and in the relative adjustment between them, a perfect accuracy is, unquestionably unattainable. The different shades both of crimes and of punishments are so numerous, and run so much into one another, that it is impossible for human skill to mark them, in every instance, distinctly and correctly. How many intervening degrees of criminality are there between a larceny of the petty kind and a robbery committed with every degree of personal insult and outrage ― between a private slander and a publick inflammatory libel ― between a simple menace and a premeditated murder ― between an unfounded murmur and a daring rebellion against the government?


But though every thing cannot, much may be done. If a complete detail cannot be accomplished; certain leading rules may be established: if every minute grade cannot be precisely ascertained; yet the principal divisions may be marked by wise and sagacious legislation. Crimes and punishments too may be distributed into their proper classes; and the general principles of proportion and analogy may be maintained without any gross or flagrant violation.


To maintain them is a matter of the first moment in criminal jurisprudence. Every citizen ought to know when he is guilty: every citizen ought to know, as far as possible, the degree of his guilt. This knowledge is as necessary to regulate the verdicts of jurors and the decisions of judges, as it is to regulate the conduct of citizens. This knowledge ought certainly to he in the possession of those who make laws to regulate all.


"Optima est lex," says my Lord Bacon, "quae minimum relinquit arbitrio judicis."1095 If this is true with regard to law in general; it must be very true, and very important too, with regard to the law of crimes and punishments. What kind of legislation must that have been, by which "not only ignorant and rude unlearned people, but also learned and expert people, minding honesty, were often and many times trapped and snared!" Yet such is the character of the criminal legislation under Henry the eighth, given by the first parliament assembled in the reign of his daughter Mary;1096 which could well describe, for it still smarted under the legislative rod. The candour, at least, of legislation should be inviolable.


"Misera est servitus, ubi jus est incognitum." When a citizen first knows the law from the jury who convict, or from the judges who condemn him; it appears as if his life and his liberty were laid prostrate before a new and arbitrary power; and the sense of general safety, so necessary to the enjoyment of general happiness, is weakened or destroyed. But a law uncertain is, so far, a law unknown. To punish by a law indefinite and unintelligible! ― Is it better than to punish without any law?


A laudable, though, perhaps, an improvable degree of accuracy has been attained by the common law, in its descriptions of crimes and punishments. On this subject, I now enter into a particular detail. To the description of each crime, I shall subjoin that of its punishment; and shall mention, as I proceed, the alterations introduced by the constitution and laws of the United States and of Pennsylvania. The laws of other nations will frequently be considered in a comparative view.


______


1033. 2. War. Bib. 15.


1034. Ante. vol. 2. p. 443.


1035. Bac. on Gov. 53.


1036. Kaims. Hist. L. Tr. 19, 20.


1037. 5. Rep. 506.


1038. 2. Paley, 291. 292.


1039. Bac. c. 7. 8.


1040. 4. Bl. Com. 41.


1041. Eden. 89.


1042. Id. 12.


1043. Eden. 12.


1044. Id.8.


1045. Id. 10.


1046. 1. Dag. 335. 343.


1047. Eden. 151.


1048. Sp. L. b. 12. c. 4.


1049. 4. Bl. Com. 16.


1050. 2. Paley. 290.


1051. Id. 287.


1052. 1. Dag. 203. Eden. 6.


1053. 1. Dag. 203.


1054. Eden. 199.


1055. Windsor Forest.


1056. Pri. Lect. 297.


1057. 4. Bl. Com. 3.


1058. 3. Ins. 15.


1059. 4. Bl. Com. 95. 96.


1060. 4. Bl. Com. 95. 1. Ins. 391 a.


1061. 4. Bl. Com. 188.


1062. 4. Con. Ang. Nor. 504.


1063. 1. Haw. 65.


1064. 2. Bl. Com. 251. 252.


1065. 3. Ins. 5.


1066. Kel. 8.


1067. 3. Ins. 63.


1068. 3. Ins. 6.


1069. Brac. 26.


1070. Id. 136 b.


1071. 4. Bl. Com. 250.


1072. 2 Henry 289. 2. Dag. 90. Eden. 217.


1073. 1. Reev. 12.


1074. De. Mor. Germ. c. 21. 2. Dag. 77.


1075. R. O. Book A. p. 49.


1076. 4. Bl. Com. 406.


1077. 1. Whitak. 278.


1078. Eden. 31.


1079. 2. Gog. Or. L. 72.


1080. 3. Gog. Or. L. 15.


1081. Art. 9. s. 9.


1082. Bar. on St. 27.


1083. 4 Bl. Com. 375.


1084. Ep. ad Brut. 12.


1085. 4. Bl. Com. 375.


1086. 1. Bl, Com. 299.


1087. 4. Bl. Com. 9.


1088. 4 Bl. Com. 381.


1089. Eden 48.


1090. Id. 39.


1091. 4. Bl. Com. 382.


1092. Eden. 49.


1093. Id. 83.


1094. Bec. c. 6. p. 17. 19.


1095. 1. Ld. Bac. 249.


1096. St. 1. Mary. c. 1.




CHAPTER II.


OF CRIMES AGAINST THE RIGHT OF INDIVIDUALS TO THEIR PROPERTY.


EVERY crime includes an injury: every injury includes a violation of a right. The investigations, which we have hitherto made concerning rights, will direct our course in that which we are now to make concerning wrongs.


I assumed, though, for the reasons assigned, I have not yet proved, that a man has a right to his property. I begin my enumeration of crimes with those which infringe this right.


I have observed that every injurious violation of our rights, natural and civil, absolute and relative, may lay the foundation of a crime.1097 I did not mean, however, to insinuate, by this observation, that every injury ought to be considered by the law in a criminal point of view. For every injury let reparation be made by the civil code, in proportion to the loss sustained; but let those injuries alone, which become formidable to society by their intrinsick atrocity, or by their dangerous example, be resented by society and prosecuted as crimes. Agreeably to this principle, a private injury done without actual violence, cannot be prosecuted by an indictment.1098 It is not considered as affecting the community.


This principle, however, seems to have gained its full establishment only by the liberality of modern times. It is remarkable, that a law made on this liberal principle, in an early period of Pennsylvania, was repealed by the king in council.1099 But this is not the only instance, in which the improving spirit of our legislation has been at first checked, but has received subsequent countenance by late decisions in England.


With the enjoyment and security of property, the security and the authenticity of its evidences is intimately connected. For this reason, dangerous and deliberate attacks upon that security or authenticity are crimes by the common law.


Forgery, at the common law, may be described " the fraudulent making or alteration of a writing, to the prejudice of another man's right." For this crime, the punishment of fine, imprisonment, and pillory may, by the common law, be inflicted on the criminal.1100


Among the Egyptians, publick notaries, who forged false deeds, or who suppressed or added any thing to the writings, which they had received to copy, were condemned to lose both their hands. They were punished in that part, which had been particularly instrumental in the crime.1101 In Lorrain, so long ago as the fourteenth century, forgery was punished with banishment!1102


The first act of parliament, which appears against it, was made in the reign of Henry the fifth. This act punishes it by satisfaction to the party injured, and by a fine to the king.1103 But this first statute has been the fruitful mother of a thousand more. True it is, that the increase of commerce, the invention of negotiable and even current paper, the institution of national funds, and the many complex securities and evidences of real property have justly rendered the crime of forgery, beside its intrinsick baseness ― for it is a species of the crimen falsi ― a consideration of great importance and extent. But is it equally true, that all this is a sufficient reason, why, in almost all cases possible to be conceived, every forgery, which tends to defraud, either in the name of a real or of a fictitious person, should be made, as in England it is now made, a capital crime:1104 "Pluet super populum laqueos." There is a learned civilian, says my Lord Bacon, who expounds this curse of the prophet, of a multitude of penal laws; which are worse than showers of hail or tempest upon cattle; for they fall upon men.1105


By a law of Pennsylvania, whoever shall forge, deface, corrupt, or embezzle deeds and other instruments of writing, shall forfeit double the value of the damage sustained, one half of which shall go to the party injured; and shall in the pillory, or otherwise, be disgraced as a false person.1106


By a law of the United States it is enacted, that if any person shall falsely make, alter, forge, or counterfeit, or cause or procure to be falsely made, altered, forged, or counterfeited, or willingly act or assist in the false making, altering, forging, or counterfeiting any certificate, indent, or other publick security of the United States; or shall utter, put off, or offer, or cause to be uttered, put off, or offered in payment or for sale, any such false, forged, altered, or counterfeited certificate, indent, or other publick security, with intent to defraud any person, knowing the same to be false, altered, forged, or counterfeited, and shall be thereof convicted; every such person shall suffer death.1107


To forge, says my Lord Coke, is metaphorically taken from the smith, who beateth upon his anvil, and forgeth what fashion or shape he will. The offence is called crimen falsi, and the offender falsarius; and the Latin word to forge is falsare or fabricare. And this is properly taken when the act is done in the name of another person.1108 "Falsely to make," says he, are larger words than "to forge;" for one may make a false writing within this act (he speaks of the 5th. Eliz. c. 14. in which, as to the present point, the words used are substantially the same with the words of the law now under consideration) though it he not forged in the name of another, nor his seal nor hand counterfeited. As if a mean make a true deed of feolfxaent under his hand and seal of the manor of Dale unto B.; and B. or some other rase out D and put in S, and then when the true deed was of the manor of Dale, now it is falsely altered and made the manor of Sale; this is a false writing within the purview of the statute.1109


Another crime against the right of property is larceny. Larceny is described ― the felonious and fraudulent talking and carrying away of the personal goods of another.1110 The Mirrour describes the crime as committed, "treacherousement."1111 More indictments are to be found for larceny, among the records of England, than for all the other crimes known to the law. It is computed that nineteen criminals out of twenty are prosecuted for this crime.1112


According as the opinions and sentiments of men concerning property have been more or less correct, their notions concerning larceny have been more or less pure. indeed, in the nature of things, this must be the case. Theft, or the secret acquisition of property, was, at Sparta, thought neither a crime nor a shame. Why? Because at Sparta, Lycurgus had established a community of goods; and when one got hold of a larger share than his neighbours, especially among the young people, it was considered merely as an instance of juvenile address, and as indicating a superiour degree of future dexterity. The senatorial order at home, we are told, enjoyed the distinguished privilege of being exempted from every prosecution for larceny.1113 What is still more remarkable, a similar claim of privilege was, in the time of Charles the second, insisted on by the house of lords in England, when a bill was sent to them from the commons, to punish ― wood stealers!1114 This anecdote we have on the authority of my Lord Clarendon, a peer, the chancellor, and the speaker of the house of lords.


Much has been said, in the English law books, concerning the distinction between grand and petit larceny. The distinction, however ancient, was never founded upon any rational principle; and the farther it flowed from its original source, the more unreasonable and cruel it became. Well might Sir Henry Spelman complain, that, while every thing else became daily dearer, the life of a man became more and more cheap.1115 But, what is more, this distinction, irrational and really oppressive, appears never to have been established with any degree of accuracy. The Author of Fleta says, if a person steals the value of twelve pence and more, he shall be punished capitally. Britton, in one place, says, if it is twelve pence or more. At this time, therefore ― that is, in the reign of Edward the first ― it was unsettled whether twelve pence was sufficient, or more than twelve pence was necessary, to superinduce the capital punishment.1116 A similar diversity and uncertainty of opinion appears in the reign of Edward the third.1117


In the description of larceny, the taking is an essential part. For every felony includes a trespass; and if the person is guilty of no trespass in taking the goods, he can be guilty of no felony in carrying them away.1118 This is precisely the law language, conveying the doctrine, which I have illustrated generally and fully ― that, without an injury, there can be no crime. A real trespass must be committed; but a real trespass will not be covered or excused by any artful stratagem to prevent the appearance of it. If one, who intends to steal the goods of another, obtains, with that intention, the process of the law to get them into his possession, in a manner apparently legal; this contrivance ― an abuse of the law ― will not excuse him from a charge of a felonious taking.1119


To a larceny it is as necessary that the goods be carried away, as that they be taken. But the least removal of the goods is sufficient to satisfy this part of the description. To remove them from one place to another, even in the same room, is, in legal understanding, to carry them away. One, who intended to steal plate, took it out of a trunk, and laid it upon the floor, but was surprised before he could do more; he was adjudged guilty of larceny.1120


The taking and carrying away, says Sir William Blackstone, and very truly, must also be felonious, that is, done animo furandi. This, by the way, is a clear and decided instance, that, in the meaning of the common law, felony is referred to the intention, and not to the event. As we saw in the former part of the description, that the crime could not exist without the injury; we see now, that the injury will not constitute the crime without the criminal intention. For, as the Author of the Commentaries next observes, this requisite indemnifies mere trespassers, and other petty offenders.1121


The last part of the description of larceny at the common law is, that the goods must be personal. Land, or any thing that is adhering to the soil or to the freehold, cannot in one transaction be made the subject of larceny. But if any thing of this kind is, at one time, separated from the freehold, so as to become a chattel; and is, at another time, taken and carried away; larceny is now committed.1122


In different nations, and in the same nation at different times, larceny or theft has received very different punishments. It would be tedious minutely to recite them. On no subject has there been more fluctuation in the criminal laws both of Greece and Rome. Seldom, however, was larceny punished capitally at Athens; never among the Romans. In the early part of the Anglo-Saxon period in England, theft of the worst kind did not expose the thief to any corporal punishment. But the compensation which he was obliged by law to make, rendered larceny a very unprofitable business when it was detected. Ina, the king of Wessex, declared stealing to be a capital crime; but allowed the offender or his friends to redeem his life, by paying the price at which it was valued by the law.1123


The distinction between punishing theft as a crime, and exacting compensation for it as an injury, is strongly marked in a law of Dowel Dha, the celebrated legislator of Wales: "If a thief is condemned to death, he shall not suffer in his goods; for it is unreasonable both to exact compensation, and to inflict punishment."


In the ninth year of Henry the first, larceny above the value of twelve pence was, in England, made a capital crime, and continues so to this day; and, in a vast number of instances, it is, by modern statutes, deprived of the benefit of clergy. These statutes, says Mr. Eden, are so complicated in their limitations, and so intricate in their distinctions, that it would be painful, on many accounts, to attempt the detail of them. It is a melancholy truth, but it may, without exaggeration, be asserted, that, exclusive of those who are obliged by their profession to be conversant in the niceties of the law, there are not ten subjects in England, who have any clear conception of the several sanguinary restrictions, to which, on this point, they are made liable.1124


By a law of the United States, larceny is punished with a fine not exceeding the fourfold value of the property stolen, and with publick whipping not exceeding thirty nine stripes.1125 In Pennsylvania, a person convicted of larceny to the value of twenty shillings and upwards, shall restore the goods or pay their value to the owner, shall also forfeit to the commonwealth the value of the goods, shall undergo a servitude for any term not exceeding three years, and shall be confined and kept to hard labour: a person convicted of larceny under twenty shillings, shall restore the goods or pay their value to the owner, shall forfeit the same value to the commonwealth, shall undergo a servitude not exceeding one year, and shall be confined and kept to hard labour.1126


Forgery and larceny seem to be the only crimes against the right of private property known to the common law.


Robbery is generally classed among the crimes against. the right of private property; but somewhat improperly, in my opinion. Robbery receives its deep dye from outrage committed on the person; but as property also enters into the description of this crime, I shall consider it here.


Robbery, at the common law, is a violent and felonious taking from the person of another, of money or goods to any value, putting him in fear.1127 From this description it appears, that, to constitute a robbery, the three following ingredients are indispensable: 1. a felonious intention, or animus furandi. 2. Some degree of violence and putting in fear. 3. A taking from the per. son of another.


1. There must be a felonious intention to steal: larceny is a necessary, though by no means the most important ingredient, which enters into the composition of a robbery. The circumstances which are calculated and proper to evince this felonious intention, it is impossible to describe or recount: they must, in this as in other crimes, be left to the attentive consideration of those, by whom the person accused is tried. The value, however, of the property on which the larceny is committed, is, as to the robbery, totally immaterial. In this respect, a penny is equivalent to a pound.1128


2. There must be some degree of violence and putting in fear. This indeed is the characteristick circumstance, which distinguishes robbery from other larcenies. If one assault another with such circumstances of terrour as put him in fear, and he, in consequence of this fear, deliver his money; this is a sufficient degree of violence; for he was put in fear by the assault; and gave his money to escape the danger.1129 To constitute a robbery, it is sufficient that the force used be such as might create an apprehension of danger, or oblige one to part with his property against his consent. Thus, if a man be knocked down without any previous warning, and stripped of his money while he lies senseless; this, though he cannot strictly be said to be put in fear, is undoubtedly a robbery.1130


3. There must be a taking from the person of another. The thief must be in the possession of the thing stolen. If he go even so far as to cut the girdle, by which a purse hangs, so that it fall to the ground; yet if he do not take it up, he has not completed the robbery, because the purse was not in his possession.1131 The taking must be from the person; but this part of the description is answered, not only by taking the money out of one's pocket, or forcing from him the horse on which he actually rides, but by taking from him, openly and before his face, any thing which is under his immediate and personal care and protection. If one, wishing to save his money, throw it into a bush, and the thief take it up; this is a taking from the person.1132


We are told by Mr. Selden, that, before the conquest, robbery was punished differently, by the different nations who came from the continent of Europe. By the Saxons, it was punished with death: by the Angles, and by the Danes, it was punished only with fine.1133 After the conquest, these different laws were settled by the Normans in the more merciful way; and if the delinquent fled, his pledge satisfied the law for him. But in the times of Henry the first, the law was again reduced to the punishment of this crime by death: and so it has continued ever since.1134


In the ancient laws of Wales, it is expressly declared, that robbery shall never be punished with death; "because (say these laws) it is a sufficient satisfaction for this crime, if the goods taken be restored, and a fine paid to the person from whom they were taken, according to his station, for the violence offered him, and another to the king for the breach of the peace."1135


Robbery, by a law of the United States, is punished capitally.1136 By a law of Pennsylvania, a person convicted of robbery forfeits to the commonwealth his lands and goods, and undergoes a servitude not exceeding ten years, in the gaol or house of correction.1137


I proceed now to the consideration of two other crimes at the common law, which, though property, as in the case of robbery, enters into their description, yet receive their deep dye from outrages against personal security. This cannot be enjoyed without a legal guard around the residence of the person.


"A man's house is his castle" was the expression, in times rude and boisterous, when the idea of security was found only on its association with the idea of strength; and in such times, no expression more emphatical could have been used. In happier times, when the blessings of peace and law are expected and due ― in such times, a man's house is entitled to an appellation more emphatick still ― in such times, a man's house is his sanctuary. "Quid enim sanctius, quid omni religione munitius, quam domus uniuscujusque civium?"1138 Into this sanctuary, the law herself, unless upon the most urgent emergencies, presumes not to look or enter. We have seen, on many occasions, with what a delicate ― I may add, with what a respectful ― reserve, she treats the near and dear domestick connexions. We may well suppose, that she will guard, with peculiar vigilance, the favoured spot in which a family reside. Even those who endeavour clandestinely to pry into its recesses ― such are1139 eaves-droppers ― receive her reprehension: and unless the peace or security of the publick require it, she will not suffer its doors to be broken, to execute even her own imperial mandates. When she thus solicitously protects the residence of a family from inferiour insults, we may rely, that she will zealously defend it from atrocious crimes. Such are arson and burglary.


Arson is a felony at common law, in maliciously and voluntarily burning the house of another.1140 This is not intended merely of the dwelling house itself, but extends to the outhouses; as the barn, the stable, the cow house, the dairy house, the mill house, the sheep house; which are parcel of the mansion house.1141


This crime may be committed by wilfully burning one's own house, if the house of another is also burnt; but if no mischief is done to that of another, it is not felony, though the fire was kindled with an intention to burn the house of that other.1142 But if the intention is to burn the house of another person, and by the burning of this the house of a third person is also burned; the burning of the house of this third person is felony; because the pernicious event shall be coupled with the felonious intention.1143


Neither the mere intention to burn a house, nor even an actual attempt to burn it, by putting fire to it, will, if no part of it be burnt, amount to felony; but if any part of the house be burnt, it is arson, though the fire afterwards go out of itself, or be extinguished.1144 No misfortune, nor even culpable negligence or imprudence, will amount to arson: it must be voluntary and malicious. A person, by shooting with a gun, set fire to the roof of a house; this was determined not to be felony.1145


Arson is a crime of deep malignity. The object of other felonies against the right to property, is merely to give it a new master; the object of arson is to destroy it ― to lose it to society, as well as to its owner. The confusion and terrour which attend arson, and the continued apprehension which follows it, are mischiefs frequently more distressing than even the loss of the property.


The crime of arson was one of the very few punished capitally by the Saxon law. In the reign of Edward the first, those who perpetrated this crime were burnt, that they might suffer in the same manner, in which they had been criminal.1146 This crime is also one of the very few still punished capitally in Pennsylvania.11471148


Burglary is a felony at the common law, in breaking and entering, by night, the mansion house of another, with intent to commit a felony.1149


There have been some opinions, that this crime, on a construction of the phrase "by night," may be committed at any time after the setting and before the rising of the sun; because the day was deemed to begin at the end, and to end at the beginning of those times; but the later and better opinion is, that if there be day light enough to discern the countenance of a man when the crime is committed, it cannot amount to a burglary.1150


To a burglary it is necessary, that the house be both broken and entered. The breaking must be actual, and not merely such as the law implies in every unlawful entry on the possession of another. To open a window; to unlock the door; to break a hole in the wall; to enter an open door and unlatch a chamber door; to come down the chimney; to knock at the door and rush in when it is opened; to gain admittance by an abuse of legal process, or by the means of a conspiring servant; all these are actual breaches. The least degree of entry with any part of the body, or with an instrument held in the hand, or even a load discharged from a gun, is sufficient to satisfy that entry, which the law deems necessary to constitute the crime of burglary.1151


In a dwelling house only burglary can be committed. But a house in which one sometimes resides, and has left with an intention to return; a house which one has hired, and into which he has brought part of his goods, though he has not lodged in it; a chamber in a college; a room occupied in a private house by a lodger; the out houses adjoining to the principal house; all these are mansion houses within the meaning of the law.1152 A shop may be parcel of a mansion house; but if it is severed by a lease to one who works in it by day only, and does not lodge in it, it is not burglary to break and enter it in the night time.1153


To a burglary, an intention to commit some felony, and not merely a trespass, is indispensable; but, as was shown on another occasion,1154 it is not necessary that the felony intended be committed; and it is immaterial whether that felony be by common or by statute law.1155


By the law of Athens, burglary was a capital crime.1156 Among the Saxons also, burgessours were to be punished with death.1157 In Pennsylvania, burglary and robbery receive precisely the same punishment.1158 The punishment for robbery has been already mentioned.


______


1097. Ante. p. 28.


1098. 3. Burr. 1703. 1733.


1099. R. O. book A. vol. 1. p. 14.


1100. 4. Bl. Com. 245.


1101. 1. Gog. Or. L. 59.


1102. Bar. on St. 380.


1103. Id. ib.


1104. 4. Bl. Com. 247.


1105. 4. Ld. Bac. 3.


1106. 1. Laws Penn. 5.


1107. Laws U. S. 1. cong. 2. sess. c. 9. s. 14.


1108. 3. Ins. 169.


1109. 3. Ins. 169.


1110. Id. 107. 4. Bl. Com. 230.


1111. C. 1. s. 10. 2. Reev. 42.


1112. Bar. on St. 443.


1113. Bar. on St. 491.


1114. Id. Ibid.


1115. 4. Bl. Com. 238.


1116. 1. Reev. 485.


1117. 2. Reev. 204.


1118. 1. Haw. 89. Kel. 24.


1119. 1. Haw. 90.


1120. Kel. 31. 1. Haw. 93.


1121. 4. Bl. Com. 232.


1122. 1. Haw. 93.


1123. 2. Henry 290.


1124. Eden. 289.


1125. Laws U. S. 1. cong. 2. sess. c. 9. s. 16.


1126. 2. Laws. Penn. 803. s. 3. 4.


1127. 3. Ins. 68. 1. Haw. 95.


1128. 3. Ins. 69.


1129. 1. Haw. 96, 97.


1130. Fost. 128. 4. Bl. Com. 242.


1131. 3. Ins. 69.


1132. 3. Ins. 69. 1. Haw. 96.


1133. Bac. on Gov. 63.


1134. Id. 88.


1135. 2. Henry 292.


1136. Laws U. S. 1. con. 2. sess. c. 9. s. 8.


1137. 2. Laws Penn. 802. s. 2.


1138. Cic. pro dom. 41.


1139. 4. Bl. Com. 169.


1140. 3. Ins. 66. 1. Haw. 105.


1141. 3. Ins. 67.


1142. Cro. Car. 376.


1143. 3. Ins. 67.


1144.1. Haw. 106.


1145. 1. Hale. P. C. 569.


1146. 1. Reev. 485.


1147. 1. Laws. Penn. 137. 476.


1148. By an act of assembly passed 22d April, 1794, arson is punished by imprisonment at hard labour, for a period not less than five, nor more than twelve years. 3. Laws. Penn. 600. Ed.


1149. 3. Ins. 63. 1. Haw. 101.


1150. 1. Haw. 101.


1151. 1. Haw. 103.


1152. 3. Ins. 64. 1. Haw. 103. 104. 4. Bl. Com. 226.


1153. Wood. Ins. 388.


1154. Ante. p. 26.


1155. 4. Bl. Com. 227.


1156. 1. Pot. Ant. c. 26.


1157. 1. Reev. 485.


1158. 2. Laws. Penn. 802. s. 2.




CHAPTER III.


OF CRIMES AGAINST THE RIGHT OF INDIVIDUALS TO LIBERTY, AND TO REPUTATION.


LIBERTY, as we have seen on former occasions, is one of the natural rights of man; and one of the most important of those natural rights. This right, as well as others, may be violated; and its violations, like those of other rights, ought to be punished, in order to be prevented. Yet these violations are scarcely discernible in our code of criminal law.


This we must ascribe to one of two causes. Either this right has been enjoyed inviolably: or the law has suffered the violations of it to escape with shameful impunity. The latter is the truth: I am compelled to add, that the latter, bad as it is, is not the whole truth. Violations of liberty have not only been overlooked: they have also been protected; they have also been encouraged; they have also been made; they have also been enjoined by the law. I speak this not only concerning the statute law; I am compelled to speak it also concerning the common law of England: I speak this not only concerning the law as it was received in the American States before their revolution; I am compelled to speak it also concerning the law as it is received in them still: I speak this not only concerning the law as it is received generally in the other sister states; I am compelled to speak it also concerning the law as it is received in Pennsylvania nay, I am farther compelled to speak it also of the law .as it is recently received in our national government.


Our publick liberty we have indeed secured; ― esto perpetua ― But, notwithstanding all our boasted improvements ― and they are improvements of which we may well boast ― the most formidable enemy to private liberty is, at this moment, the law of the land.


In some former parts of my lectures,1159 I have had occasion to remark, and I have remarked with pleasure, that solicitous degree of attention which the law gives to personal security. Its most distant avenues are watchfully guarded. To decide questions, by which it may he affected in the highest, or even in inferiour degrees, I have shown, in a sublime part of our system, to be the incommunicable prerogative of sovereignty or selected sovereignty itself. I have shown, that, by an operation inexpressibly fine, personal safety never sees the arm which holds the sword of justice, but at the moment when it is found necessary that its stroke should be made. Inferiour to personal safety only, if indeed inferiour even to that, is the consideration of personal liberty. And yet, while personal safety can be authoritatively affected only by the community, or a body selected from the community impartially and for the occasion, the law implicitly, causelessly, unconditionally, and continually prostrates personal liberty at the feet of every wretch who is unprincipled enough to trample upon it. I say, unprincipled; because a citizen, who has principle, will not wound it by using the authority of the law. In every state of the union ― in every county of every state, there are shops opened, nay licensed, nay established by the law, at which its authority may be purchased, for a trifle, by the worst citizen, in order to infringe the personal liberty of the best.


From the disgrace of these enormities against the rights of liberty, I gladly rescue the character and principles of the common law. The history of the several processes of capias, and orders and rules of commitment will show, when we come to it, that this part of our municipal law is of statute original; and that it was produced in the darkest and rudest, though its existence has continued in the most enlightened and the most refined times.


With another part of these enormities against the rights of liberty, however, impartiality obliges me to charge the common law. Man is composed of a soul and of a body. To mental as well as to bodily freedom, he has a natural and an unquestionable right. The former was grossly violated by the common law. Witness the many overgrown titles, by which the volumes of the law are still distended: witness, in particular, the customs de modo decimcandi, and the writs de excommunicato capiendo and de heretico comburendo.1160 These parts I only mention; because from these parts we are happily relieved: they are parts of the common law, which did not suit those who emigrated to America: they were, therefore, left behind them.


But, in some respects, private liberty is still the orphan neglected; in others, she is still the victim devoted by our municipal law. So inveterate, indeed, is the vice of the law in this particular, that it has infected its very language. The terms, which denote the diminution or the destruction of personal safety ― homicide, wounding, battery, assault ― are all prima facie understood in an unfavourable meaning; though they are sometimes excused, or justified, or even enjoined, as well as sometimes prohibited and punished by the law: but to imprisonment, the idea of legal authority seems, in legal understanding, to be prima facie annexed: and when it speaks of the unauthorized kind, it is obliged to distinguish it by adding the epithets false or unlawful.


But legislators should bear in their minds, and should practically observe ― and well persuaded I am, that our American legislators bear in their minds, and, whenever the necessary resettlement of things after a revolution can possibly admit of it, will practically observe, with regard to this interesting subject ― the following great and important political maxim: ― Every wanton, or causeless, or unnecessary act of authority, exerted, or authorized, or encouraged by the legislature over the citizens, is wrong, and unjustifiable, and tyrannical: for every citizen is, of right, entitled to liberty, personal as well as mental, in the highest possible degree, which can consist with the safety and welfare of the state. "Legum" ― I repeat it ― "servi sumus, ut liberi esse possimus." In the course of my future investigations into this point, I shall be able to evince, in the clearest manner, that our municipal regulations concerning it are not less hostile to the true principles of utility, than they are to those of the superiour law of liberty.


Having made these preliminary observations on a subject, which so greatly needs, and so richly deserves them, I proceed to search the little that is said in some of our systems of criminal law ― in others nothing is said ― concerning it.


False imprisonment is punishable by indictment, like assaults and batteries; and the delinquent may be fined and imprisoned.1161


Thus much concerning the crime of violating the personal liberty of man.


Reputation, except that of official characters, seems not, of late times, any more than personal liberty, to have attracted the distinguished regard of our publick law: and even when it deigns a little degree of regard to it, that regard flows from a wrong principle, and is referred to a wrong end. Libels are considered as objects of publick cognizance, not because the character, but because the tranquillity of the citizens is precious to the publick; and therefore, crimes of this nature are classed and prosecuted and punished as breaches of the peace, and as much resembling challenges to fight.1162 But it was not always so.


I said, on a former occasion,1163 that robbery itself does not flow from a fountain more rankly poisoned, than that which throws out the waters of calumny and defamation. In saying so, I was warranted by authority respectable and ancient. By the laws of the Saxons, the felon, who robbed, was punished less severely than the wretch who calumniated. By a law, made, towards the end of the seventh century, by Lothere, one of the kings of Kent, a calumniator was obliged to pay one shilling to him in whose house or lands he uttered the calumny. It was conceived, it seems, to diffuse a degree of contamination over things inanimate. He was obliged to pay six shillings to the person whom he calumniated, and twelve shillings to the king. When we recollect, that, long after this time, a shilling could purchase a fatted ox; we may judge concerning the light, in which defamation was viewed at this time. But Edgar the peaceable, who flourished about two centuries afterwards, made, against this crime, a law much more severe: it decreed, that a person convicted of gross and dangerous defamation should have his tongue cut out, unless he redeemed it by paying his full were, as it was called, or the price of his life. This law was confirmed by Canute the great.1164


By the laws of Egypt, a defamer was condemned to the same punishment, which would have been inflicted on the defamed, if the defamation had been true.1165 Solon, in one of his laws, ordained, that a delinquent in slander should make reparation in money to the party injured; and should also pay a fine into the publick treasury.1166


A libel may be described ― a malicious defamation of any person, published by writing, or printing, or signs, or pictures, and tending to expose him to publick hatred, contempt, or ridicule.1167 It is clearly a crime at the common law.1168


It has been often observed in the course of these lectures, that one extreme naturally produces its opposite. An unwarrantable attempt made in the star chamber, during the reign of James the first, to wrest the law of libels to the purposes of ministers, and an effort continued ever since to carry that attempt into execution, and even to go beyond some of its worst principles, have, in England, lost to the community the benefits of that law, wise and salutary when administered properly, and by the proper persons. The decision in that case has ever since been considered, in England, as the foundation of the law on this subject. It will be proper, therefore, to examine the parts of that decision with some degree of minuteness.


The libel, prosecuted and condemned, was a satyrical ballad on a deceased archbishop of Canterbury and his living successour.1169


The first resolution is, that a libel against a magistrate, or other publick person, is a greater offence than one against a private man. This, in the unqualified manner here expressed, cannot be rationally admitted. Other circumstances being equal, that of office ought to incline the beam, if the libel refer to his official character or conduct; because an officer is a citizen and more. But a libel of one kind against a private citizen, may certainly be more atrocious, and of example more atrociously evil, than a libel of another kind against a publick officer.


Another and a more important resolution in that case is ― that it is immaterial whether the libel be false or true. This resolution is clearly extrajudicial, because it appears, from the state of the case, that the author of the libel was proceeded against on his own confession. The rule, however, has been followed by more modern determinations; and reasons have been offered to support it on the principles of law. The provocation and not the falsity, says Sir William Blackstone, is the thing to be punished criminally. In a civil action, he admits, a libel must appear to be false as well as scandalous; for, if the charge be true, the plaintiff has received no private injury, and has no ground to demand a compensation for himself, whatever offence it may be against the publick peace; and, therefore, upon a civil action, the truth of the accusation may be pleaded in bar of the suit. But in a criminal prosecution, the tendency which all libels have to create animosities, and to disturb the publick peace, is the sole consideration of the law.1170


Upon this passage, I observe, in the first place, that a libel is a violation of the right of character, and not of the right of personal safety. It is no wonder if the seasonings on this crime are inaccurate, when its very principle is mistaken.


I observe, in the second place, that these inaccurate reasonings are attempted to be established by a gross inconsistency. When they refer to the effects of the libel, they suppose the tendency to produce disturbances of the peace: when they refer to the causes of the libel, they say to him who is actuated by them ― you ought, in a settled government, to complain for every injury in the ordinary course of law, and by no means to revenge yourself.1171 Why is not this advice given consistently, to the person provoked by the libel? If he has received an injury ― if on that injury a crime is superinduced; the law will repair the former, and punish the latter: if no injury has been sustained, no foundation has been laid for a crime.


I observe, in the third place, that Sir William Blackstone here seems not to have been sufficiently attentive to a principle, which he properly subscribes in another part of his Commentaries:1172 the crime includes an injury: every publick offence is also a private wrong, and somewhat more: it affects the individual, and it likewise affects the community.


The only points, it is said, to be considered in the prosecution for a libel, are, first, the making or publishing of the book or writing: secondly, whether the matter be criminal.1173


On the last of these two points, a celebrated controversy has subsisted between judges and juries; the former claiming its decision as a question of law; the latter claiming it as a question of fact, or, at least, necessarily involved in the decision of a question of fact. After what I have said, in a former lecture,1174 concerning the general duties and powers of juries, you will be at no loss to know my sentiments on this controverted subject. I only remark, at present, that if a libel be, as I think it is, a crime against the right of reputation; the trial on a libel must be the trial of a character, or some part of a character. Of all questions, almost, which can be proposed, I think this the most remote from a question of law.


The constitution of Pennsylvania has put this matter upon an explicit footing, consonant, or nearly consonant in my opinion, to the true principles of the common law: "in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases."1175


The punishment of a libel is a fine, or a fine and corporal punishment.1176


______


1159. Ante. vol. 2. P. 384. et seq.


1160. 4. Bl. Com. 46.


1161. 4. Bl. Com. 218. 2. Haw. 90.


1162. 4. Bl. Com. 150.


1163. Vol. 2. p. 472.


1164. 2. Henry. 293.


1165. 1. Gog. Or. L. 58.


1166. 1. Pot. Ant. 179.


1167. 1. Haw. 193.


1168. 3. Ins. 174.


1169. 5. Rep. 125 a.


1170. 4. Bl. Com.150.


1171. 5. Rep. 125 b.


1172. 4. Bl. Com. 5.


1173. Id. 151.


1174. Vol. 2. p. 336. et seq.


1175. Art. 9. s. 7.


1176. 1. Haw. 196.




CHAPTER IV.


OF CRIMES AGAINST THE RIGHT OF INDIVIDUALS TO PERSONAL SAFETY.


THE crimes which are next to be enumerated and considered are those against the right of personal safety. On this subject, the common law has been peculiarly accurate and attentive.


An assault is an attempt or offer, with force and violence, to do a corporal hurt to another; as by striking at him; by holding up the fist at him; by pointing a pitchfork at him, if he be within its reach; by presenting a gun at him, if he be within the distance to which it will carry; or by any other act of a similar kind, done in an angry and threatening manner.1177 An assault is violence inchoate.1178


A battery is violence completed by beating another. Any injury done to the person of a man, in an angry, or revengeful, or rude, or insolent manner, as by touching him in any manner, or by spitting in his face, is a battery in the eye of the law.1179 In that eye, the person of every man is sacred: between the different degrees of violence it is impossible to draw a line: with great propriety, therefore, its very first degree is prohibited.1180


Wounding is a dangerous hurt given to another; and is an aggravated species of battery.1181


These offences may unquestionably be considered as private injuries, for which compensation ought to be decreed to those who suffer them. But viewed in a publick light, they are breaches of the publick peace: as such they may be prosecuted; and as such they may be punished. The punishment is fine, or fine and imprisonment.1182


A battery or an assault, violence or an offer of violence, is susceptible of deep criminality from the atrocious intention, with which it is sometimes offered or done. An assault with a design to murder, to perpetrate the last outrage upon the honour of the fair sex, or to commit the crime which ought not to be even named ― these are instances of what I mention: in these instances, to a heavy fine and imprisonment, it is usual to add the judgment of the pillory.1183


Assaults, batteries, and woundings may be sometimes excused, and sometimes justified. The particular cases in which this may be done, will be explained with more propriety, when we come to consider them as private injuries, and not as publick offences.


Affrays are crimes against the personal safety of the citizens; for in their personal safety, their personal security and peace are undoubtedly comprehended. An affray is a fighting of persons in a publick place, to the terrour of the citizens. They are considered as common nuisances. They may, and ought to be suppressed by every person present; and the law, as it gives authority, so it gives protection, to those who obey its authority in suppressing them, and in apprehending such as are engages in them; if by every person present; then still more strongly by the officers of peace and justice.1184 In some cases, there may be an affray, where there is no actual violence; as where a man arms himself with dangerous and unusual weapons, in such a manner, as will naturally diffuse a terrour among the people.1185


To challenge another, by word or letter, to fight a duel, or to be the messenger of such a challenge, or to provoke, or even to endeavour to provoke, another to send such a challenge, is a crime of a very high nature, and is severely reprehended by the law:1186 duels are direct and insolent contempts of the justice of the state.1187


Affrays are punished by fine and imprisonment, the measure of which must be regulated by the circumstances of the case.1188 For sending a challenge, the offenders have been adjudged to pay a fine, to be imprisoned, to make a publick acknowledgment of their offence, and to be bound to their good behaviour.


It cannot have escaped your observation, with what a judicious mixture of poignant contempt the common law seasons its indignation against those, who are so lost to true sentiment as to deem it honourable to insult the justice of their country. They are not treated as criminals of dignity: they are considered in the very degraded view of common nuisances: the putrid offals of the shambles are viewed, as we shall see, in the same light.


Neither can it have escaped your observation, with what a deep knowledge of human nature, the common law traces and pursues duels to what is frequently their cowardly as well as their cruel source. Many are vain and base enough to wish and aspire at that importance, which, in their perverted notions, arises from being even the second in a quarrel of this nature, who have not spirit enough to face that danger, which arises from being the first. Hence often the officious and the insidious offers of friendship, as it is called, on these occasions, by those who, with hearts pusillanimous and malignant, inflame, instead of endeavouring, as those possessed of bravery and humanity would endeavour, to extinguish an unhappy dispute ― a dispute, perhaps, unpremeditated as well as unhappy ― regretted as well as unintended by the immediate parties ― and to rescue them from the consequences of which, without any violation of the rules of true honour, and even without any departure from the rules of false honour, which every one has not the calm courage to violate, nothing is wanting but a conduct diametrically opposite to that of these pretended friends ― a conduct which will prevent extremities, without wounding a sentiment which, without necessity, ought not to be wounded, because it is delicate though it be mistaken.


Animated with a just degree of blended resentment and disdain against the conduct first described, the common law wisely and humanely extends disgrace and censure and punishment to those who provoke, even to those who endeavour to provoke, another to send a challenge.


On the same principles on which affrays are prohibited and punished, riots, routs, and unlawful assemblies are also prohibited and punished by the common law. Two persons may commit an affray; but to a riot, a rout, or an unlawful assembly, three are necessary. A riot is a tumultuous disturbance of the peace by persons unlawfully assembled with a view to execute, and actually executing, some unlawful act, in a violent and turbulent manner, to the terrour of the people.1189 A rout is a riot unfinished; and is committed by persons unlawfully assembled with a view to execute, and actually making a motion to execute, an unlawful act, the execution of which would render the riot complete. An unlawful assembly is an unfinished rout; and is committed by persons unlawfully assembled with a view, but without actually making a motion, to execute an unlawful act, to the execution of which, if they had made an actual motion, they would have been guilty of a rout.1190 The punishment of these offences, at the common law, has generally been by fine and imprisonment only: cases, however, very enormous have been punished by the pillory also.1191


Mayhem is a crime committed by violently depriving one of the use of any part of his body, by losing the use of which he becomes less able, in fighting, to annoy his adversary or to defend himself.1192 This is an atrocious breach of the publick peace and security. By it, one of the citizens is disabled from defending himself; by it, his fellow citizens are debarred from receiving that social aid which they are obliged to give; by it, the state loses those services, which it had a right to exact and expect. In ancient times, this crime was punished according to the law of retaliation: it is now punished with fine and imprisonment.1193


The forcible abduction or stealing of a person from his country, is a gross violation of the right of personal safety. To this crime the term kidnapping is appropriated by the law. It robs the state of a citizen; it banishes the citizen from his country and it may he productive of mischief`s of the most lasting and humiliating kind. By the common law, it is punished with fine, with imprisonment, and with the pillory.1194


A rape is an irreparable and a most atrocious aggression on the right of personal safety. Besides the thousand excruciating, but nameless circumstances by which it is aggravated, some may be mentioned with propriety. It is a crime committed not only against the citizen, but against the woman; not only against the common rights of society, but against the peculiar rights of the sex: it is committed by one from whom, on every virtuous and manly principle, her sex is entitled to inviolable protection, and her honour to the most sacred regard. This crime is one of the selected few, which, by the laws of the Saxons, were punished with death. The same punishment1195 it still undergoes in the commonwealth of Pennsylvania.1196 On this subject, for an obvious reason, particular observations will not be expected from a lecture in the hall: they are fit for the book and the closet only: for even the book and the closest they are fit, only because they are necessary.


The crime not to be named, I pass in a total silence.


I now proceed to consider homicide, and all its different species. Homicide is the generical terns used by the law to denote every human act, by which a man is deprived of his life. It may be arranged under the following divisions ― enjoined homicide ― justifiable homicide ― homicide by misfortune ― excusable homicide ― alleviated homicide ― malicious homicide ― treasonable homicide.


I. 1. Homicide is enjoined, when it is necessary for the defence of the United States, or of Pennsylvania. At present, it is not necessary for me, and, therefore, I decline to examine the general and very important subject concerning the rights of war. I confine myself merely to that kind of war, which is defensive: and even that kind I now consider solely as a municipal regulation, established by the constitution of the nation, and that of this commonwealth.


The constitution of the nation is ordained to "provide for the common defence." In order to make "provision" for that defence, congress have the power to "provide for arming the militia," and "for calling them forth," "to repel invasions:" they have power "to provide a navy," "to raise and support armies," "to declare war."1197 Whenever the primary object, "the common defence," renders it necessary, the power becomes the duty of congress: and it requires no formal deduction of logick to point to the duty, when necessity shall require, of military bodies, "raised, supported, and armed." In Pennsylvania, it is explicitly declared upon the very point, that "the freemen of this commonwealth shall be armed for its defence."1198


2. Homicide is enjoined, when it is necessary for the defence of one's person or house.


With regard to the first, it is the great natural law of self preservation, which, as we have seen,1199 cannot be repealed, or superseded, or suspended by any human institution. This law, however, is expressly recognized in the constitution of Pennsylvania.1200 "The right of the citizens to bear arms in the defence of themselves shall not he questioned." This is one of our many renewals of the Saxon regulations. "They were bound," says Mr. Selden, "to keep arms for the preservation of the kingdom, and of their own persons."1201


With regard to the second; every man's house is deemed, by the law, to be his castle; and the law, while it invests him with the power, enjoins on him the duty, of the commanding officer. "Every man's house is his castle," says my Lord Coke, in one of his reports, "and he ought to keep and defend it at his peril; and if any one be robbed in it, it shall be esteemed his own default and negligence."1202 For this reason, one may assemble people together in order to protect and defend his house.1203


3. Homicide is frequently enjoined by the judgment of courts agreeably to the directions of the law. This is the case in all capital punishments. This species of homicide is usually classed with those kinds which are justifiable. The epithet is true so far as it goes. But it goes not far enough to characterize the conduct of the officer to whom it relates. One may be justifiable in doing a thing, in omitting to do which he may be equally justified. But this is not the case with a sheriff, or other ministerial officer of justice. He is commanded to do execution.


II. As homicide is enjoined, when a sentence of death is to be executed; so it is sometimes justified in the execution of other process from the courts of justice. When persons, who have authority to arrest, and who use the proper means for that purpose, are resisted in doing so, and the party making resistance is killed in the struggle; this homicide is justifiable.1204 If a person, who interposes to part the combatants in an affray, and gives notice to them of his friendly intention, is assaulted by any of them, and, in the struggle, happens to kill; this is justifiable homicide. For, in such cases, it is the duty of every man to interpose, that mischief may be prevented, and the peace may be preserved. This rule is founded in the principles of social duty.1205 If a woman, in defence of her honour, kill him who attempts the last outrage against it; this homicide is justifiable.1206 In the same manner, the husband or father may justify the killing of one, who makes a similar attempt upon his daughter or wife.1207 In these instances of justifiable homicide, the person who has done it is to be acquitted and discharged, with commendation rather than censure.1208


III. Homicide by misfortune happens, when a man, in the execution of a lawful act, and without intending any harm, unfortunately kills another.1209 The act must not only be lawful, but must also be done in a lawful manner. If a master, correcting his servant moderately, happens to occasion his death, it is only misadventure; for the act of correction was lawful: but it is much otherwise, if he exceed in the manner, the instrument, or the quantity of the correction.1210


This species of homicide, if found by a jury, still, in strict law, as it is received in England, subjects the unfortunate ― I cannot call him the guilty ― party, to a forfeiture of his personal estate; or, as some say, only a part of it. He has, it is true, his pardon, and a writ for restoring his goods, as a matter of course, when he pays the fees for them.1211 Sir William Blackstone seems to make an apology for this forfeiture, by observing, that, in the case of homicide by misadventure, the law presumes negligence, or, at least, a wart of sufficient caution, in him who was so unfortunate as to commit it; who, therefore, is not altogether faultless.1212 The law itself is severe in this instance ― confessedly so: but the apology for it seems to be founded on a principle, rigorous and totally inadmissible.


Shall the unfortunate be necessarily viewed as also incautious? Shall negligence be presumed by the law, when misadventure has been found by the jury? No. The doctrine is inadmissible. It is rigorous. Accidents of this lamentable kind may be the lot of the wisest and most cautious, and of the best and most humane among men: they most frequently happen among those who are relations or friends; because those associate most fr