Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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LAW, Criminal

II.248.1

LAW, Criminal, is that branch of jurisprudence which takes cognizance of those wrongs which are injurious to the public, and punished by the government in its own name by what are denominated criminal proceedings. The criminal law, like the civil, is both statutory and common. In all but four states of the Union, the common law extends as well to criminal matters as to civil. In Ohio the court decided that the common law could not be resorted to for the punishment of crimes and misdemeanors, and in Indiana the statute provides that all crimes and misdemeanors must be defined and punished by the statutes of the state. In Florida and Missouri there are legislative enactments restricting to a limited fine and imprisonment the right to punish for common law offenses. On the other hand, Louisiana and Texas, not originally governed by the common law, have expressly introduced it as to crimes. Common law offenses against the general government do not exist in the states in the liberal sense of the proposition, as we have no national common law; but there are in special cases common law offenses against the United States, within the territorial limits of the states. In localities where state power is unknown, common law offenses against the United States must necessarily exist, and yet the result has been definitely reached through the decisions of the court that the United States courts can not punish crimes against the general government, unless specified and defined by an act of congress. (Bishop, Crim. Law.) In the District of Columbia the laws existing previous to its acquirement are by statute still in force, and common law crimes against the United States exist the same and to the same extent as they do in the several states against the state.

II.248.2

—In criminal law, when applying the specific rules of statutory interpretation, there are two kinds that appear: the liberal or open, and the strict or close. The liberal interpretation expands or covers a larger space than words import; the strict contracts within a less space. Both are modified in accordance with the requirements of particular cases. The law both abhors and favors. In respect to things odious, a strict interpretation is used; in respect to things favored, a liberal. All statutes detracting from common law rights are strictly construed, and reach no further in meaning than their words express; no one is subject by implication, and all doubts are construed in favor of the prisoner. Revenue laws come within this rule, for though their primary object is but the collection of duties, yet they range themselves beside other penal statutes, by imposing fines, working forfeitures, and depriving men of their property. The leading doctrine is, that criminal statutes are to be strictly enforced. As against defendants the statute may be enlarged where the reason and intent of the law require it, and they may be extended by other provisions of statutory law, and by the common law combining with them; and this rule is not violated by permitting the words of the statute to have their full meaning, or the more extended of two meanings; as for instance, the statute forbidding the larceny of any "bank note" extends to the bank notes of other states; or, against betting "upon any election of this state" extends to the betting within the state upon an election for president. A strict construction is not violated by giving the words of a statute a reasonable meaning according to the sense in which they were intended. Thus, the state or corporation may be included in the word "person"; a woman may be indicated by the masculine pronoun "his"; a ewe or lamb by the word "sheep"; a girl by the word "woman"; and horses, geldings, asses and pigs by the word "cattle." The words of a penal statute, however, can not be extended by construction beyond what they will reasonably bear. An act which makes an assault indictable, must be an actual assault and not of a constructive nature. If two men are in altercation, and one holds a weapon in his hand and the other forces a part of his body against the point of the weapon, the wound inflicted is not by the party holding the weapon. Money is not meant by the words, "security for money." Wheat threshed for straw is not a "stack of wheat." This principle is, however, established: If the court entertains a reasonable doubt as to the meaning of a criminal statute, it must decide in favor of the prisoner. It must also construe statutes so as not to multiply felonies, and no case is to be brought within the statute by construction while it does not fall within its words. Thus, where a statute regulating the sale of cord wood imposed a penalty of so much per cord "for every cord of wood bought and sold," the court held that no penalty could be incurred in the purchase or sale of less than a cord.

II.248.3

—On the other hand, it is held that whenever the thing done does not come within the wrong which the statute evidently intended to suppress, though it come within its words, the person so doing is not punishable. It is a principle of the common law that no one shall suffer criminally for an act in which his mind does not concur. If the act committed is not within the intention of the law makers, it is not within the law although within the letter; therefore the case must come not only within the words of a statute, but also within its reason and spirit. Thus statute 12 Anne, stat. 1, c. 7, against stealing goods "being in any dwelling house, although such dwelling house be not actually broken in by such offender, and although the owner of the goods or any other person or persons be or be not in such house," is not violated where one steals, in his own house, the goods of another; or where a wife does the same thing in her husband's house; or where the larceny is of property found upon the person, though in a dwelling house, but therefore not under its protection; or where the things stolen are such as are not usually deemed to be under the protection of a dwelling house.

II.248.4

—Time and place operate distinctly in the character and division of crime. The attempt to commit felony by breaking into a house at night is a common law felony, called burglary. When the same act is committed in the daytime, it is a felony called a misdemeanor. A dwelling house includes the cluster of buildings surrounding the main building in which a family lives, and a burglary committed in any one of these out-buildings is of the same character of offense as if committed in the mansion itself.

II.248.5

—The uttering of forged paper or counterfeited bank notes or coin, or anything of like character, is to offer the same, intending it to be received as good, and whether it is accepted or not, the act of uttering it is complete. It is, however, held to be the rule, that to constitute the uttering, there must be a complete attempt to do the particular act the law forbids. There may be also a complete conditional uttering which will be criminal, as where a master gives an innocent servant a counterfeit bill to be delivered to another party in another county; while it was no part of his intention that the servant should receive it himself, and therefore not a complete uttering, it still appears that there would be ground for construing the act of delivery of the forged bill to the servant as an indictable attempt to cheat the third party.

II.248.6

—The act of breaking into a man's castle either with burglarious intent, or by an officer to serve process on him, is not to be construed legally to mean an act of violence. The mere lifting of a latch and thus opening a door not otherwise fastened; raising or lowering a window sash held by a wedge, or by a weight with ropes and pulleys; raising a trap-door kept down by its own weight; or obtaining by stealth and procuring by threats of violence an entrance; or by intimidating a person within to open the door; or by the removal of a pane of glass or window shutter, or by forcing the blinds partially closed, is held legally to be a breaking. But if a door or window is open a little way, it is not breaking into the house for an officer in serving process to push it open still farther to admit the passage of his body. This part of the treatise of criminal law, to wit, statutory interpretations, could be commented upon still further with profit, but space forbids. It is possible only to glance at it.

II.248.7

—To constitute a criminal offense two things must be established: the intent to do the wrong, and the performance of the act in pursuance of the intent. It is a universal rule that to constitute an offense, the act and intent must concur in point of time. To constitute a larceny the act of trespass and the intent to steal must occur at one and the same time. To constitute a burglary the intent to commit the felony in the house must occur at one and the same time.

II.248.8

—It was a principle of Roman jurisprudence that ignorance of the law did not excuse its violation. This rule has been engrafted upon our own jurisprudence, combining with it another general principle, that every man is presumed to know the laws of the country in which he dwells. This rule may appear arbitrary, but is nevertheless essential to the proper administration of government. Sometimes the court takes into consideration a prisoner's ignorance of the law, when passing sentence after conviction. Also the degree of responsibility from mental condition. Should the guilt or innocence of the prisoner depend on the fact, to be ascertained by the jury, of his mental condition at the time of the perpetration of the act, the jury, in determining this question of mental condition, may take into consideration his ignorance or misinformation in a matter of law.

II.248.9

—Ignorance of fact, however, stands on different grounds from ignorance of law. "Ignorance or mistake in point of fact is, in all cases of supposed offense, a sufficient excuse." (Gould, J., Myers vs. State, 1 Conn., 502.) This doctrine is held in those cases of justifiable homicide where the act was committed either in self-defense or to prevent the person killed from committing a felony. If he has reasonable cause to believe that the facts exist which excuse a homicide, and he does believe them to exist, without any fault or carelessness on his part, he is legally innocent, although it becomes apparent after the deed that he was mistaken, and the life of an innocent person was sacrificed through his ignorance. The law of libel furnishes an illustration of this doctrine. The words charged in a criminal case to be libellous are construed as the defendant understood them, rather than as understood by others or by the court. This principle also applies to an "innocent agent" who is moved to do a forbidden thing by another person, and yet incurs no legal guilt, because either not possessing sufficient mental capacity, or not having been made acquainted with the true facts of the case. These distinctions between law and fact, where the excuse of ignorance is offered for the commission of crime, are held to be of the highest importance in criminal law jurisprudence.

II.248.10

—Another principle laid down in criminal law jurisprudence, where an act committed produces an unintentional result, is, that the thing done having proceeded from a wicked intent, is to be viewed in the same light, whether the crime was of one particular form or another. Thus, if one attempting to kill a particular individual, discharges a weapon at him and by accident the charge is lodged in the body of another person and kills him; or if seeking the life of a person one places poison in his way which another person consumes, and dies; or if one, while in the attempt to steal poultry or the like, discharges his gun and shoots and kills accidentally a human being, the party who commits the act, though unintended, is legally as much guilty of murder as if he had intentionally performed any one of the acts. So where a man criminally assaults a woman, and she in the attempt to protect her honor, offers money to her assailant to release her or desist from the assault, which he accepts by putting it in his pocket, although he made no demand for the money, he is nevertheless in law guilty of robbery. But in the enforcement of this principle it must be clearly shown that the thing intended to be done was malum in se, and not alone malum prohibitum. Archbold thus states the principle: "When a man in the execution of one act, by chance or misfortune and not designedly, does another act for which, if he had willfully committed it, he would be liable to be punished; in that case if the act he was, doing were lawful, or merely malum prohibitum, he shall not be punishable for the act arising from misfortune or chance; but if malum in se, it is otherwise."

II.248.11

—With respect to the doctrine of necessity and compulsion, Rutherford says: "No action can be criminal if it is not possible for a man to do otherwise. An unavoidable crime is a contradiction; whatever is unavoidable is no crime; and whatever is a crime is not unavoidable." (Ruth. Inst., c. 18.) An act from necessity or compulsion is not therefore a crime, but anything short of a firm apprehension of personal injury endangering life can not excuse the killing of another in self-defense. Should a man be attacked by a ruffian who attempts to inflict upon him severe bodily harm, the law presumes the man's life endangered and he may lawfully kill the ruffian. But although a man should assault another with such violence as to endanger his life in the effort to compel him to take the life of a third party, there would be no legal excuse for complying with the demand. Upon this point there has arisen some controversy. Russell on Crimes says: "It has been observed that if the commission of treason may be extenuated by the fear of present death, there seems to be no reason why homicide may not also be mitigated upon the like consideration of human infirmity. But Lord Denman, in charging the jury in the case of The Reg. vs. Tyler, 8C. & P., 616, emphatically stated the doctrine to be, that no man, from fear of consequences to himself, has a right to make himself a party to committing mischief on mankind. The weight of authority is with this opinion.

II.248.12

—With regard to coverture, marriage does not absolve a woman's legal capacity for crime which as a femme sole she possessed. Her relations toward her husband, however, compel obedience, affection and confidence. For this condition the law permits an indulgence. If through constraint of her husband's will, her duty of obedience is carried to such an extent as to commit unlawful acts, she shall not suffer for them criminally. This consideration is peculiar to the common law. The act, however, must be done or completed in his presence. A command is insufficient, unless the act is committed in his presence, and then the law presumes her to be compelled by him to perform the act. But the rule that coercion is presumed from the mere presence of the husband does not apply to certain crimes on account of their peculiar nature, such as treason, murder, robbery, and all such malignant crimes as render it probable that the mere presence of the husband would not be sufficient to compel her to commit the crimes, without the active co-operation of her own mind. The presumption that the wife, being in the presence of her husband, acts under his coercive power, is only a prima facie one, and can be rebutted by evidence. If the two acted together, she will be acquitted. But if her husband was a cripple or otherwise powerless to enforce his command, although present, or if she acted from a co-operating will, she is to be convicted Therefore the wife may be proceeded against jointly with her husband in the same indictment, and when they come to trial she can rely upon coercion when the proofs are sufficient. There are other points of interest, which space forbids, involved in this part of the subject; notably those acts which it is impossible for a wife to legally commit on account of her peculiar relations with her husband.

II.248.13

—With respect to legal capacity, the common law fixes the age at twenty-one for both males and females. The law enforces filial obedience and yet does not establish the close relation between parent and child as between husband and wife. In law, all children under twenty-one are viewed as infants; but infants who have arrived at a maturity of understanding are capable of committing crimes. They can not plead in justification of the crime committed that they were constrained by their parents to commit the same. At common law a child under seven years of age is held to be unaccountable; between seven and fourteen incapable prima facie; between fourteen and twenty-one, capable prima facie, and incapacity must be established by proof. A boy under fourteen or a girl under twelve can not contract a perfectly valid marriage. The legal principle denies puberty in a boy under fourteen, and also establishes the rule that he can not at that age legally commit a rape, whatever his physical capabilities.

II.248.14

—Under the head of want of mental capacity as an excuse for the commission of crime, criminal law ethics treats of the various grades of insanity. The classification adopted by Dr. Ray involves the subdivisions necessarily existing. From defective development of the faculties springs idiocy and imbecility. Idiocy may result from congenital defect and obstacles to the development of the faculties supervening in infancy. Imbecility may result from the same causes. From the lesion of the faculties subsequent to their development, spring mania and dementia—mania intellectual and affective, general and partial; dementia from injuries to the brain, and the senility of old age. The existence of these grades of insanity establishes the nature or character of the act as in proportion to the mental capacity of the individual. The court usually puts the question of insanity to the jury in this form: whether at the time the prisoner committed the act he was in a state to comprehend his relations to other persons, the nature of the act and its criminal character as against the law of the land, which, if sane, he is presumed to know; in fact, whether he was conscious of doing wrong.

II.248.15

—With respect to the defense of drunkenness as an excuse for the commission of crime, the legal doctrine is, that voluntary intoxication furnishes no excuse for crime committed under its influence. But if a party be made drunk by stratagem or the fraud of another, or the unskillfulness of his physician, he is not responsible. (Parks, J., in Pearson's Case, 2 Lewin, 144.) The legal principles which operate in the case of drunkenness are the same as those which govern an act of evil intent producing an unintended result. Under the common law, drunkenness is regarded in the nature of a crime, and its public exhibition in this country is usually punished by fine, as a misdemeanor. There is still, however, a question as to the extent of criminal responsibility he may incur. If one is too drunk to entertain an intent to steal, although he takes another's property into his hands, he is not guilty of larceny. In further illustration of this point, Bishop says in relation to its application in cases of homicide: "The common law divides all indictable homicides into murder and manslaughter; but the specific intent to kill is not necessary in either. A man may be guilty of murder without intending to take life; he may be guilty of manslaughter without so intending; or he may intend to take life, yet not commit any crime in taking it. Now the doctrine of the courts is, that the intention to drink may fully supply the place of malice aforethought; so that if one voluntarily becomes so drunk as not to know what he is about, and then with a deadly weapon kills a man, the killing will be murder, the same as if he were sober." In some of the states, however, murder is divided by statute into two degrees. The first requires the specific intent to kill; the second degree is where there is an absence of specific intent, as in the case of extreme drunkenness, when the party would be incapable of entertaining a specific intent. In like manner under the common law distinction between murder and manslaughter, evidence of intoxication under certain circumstances may reduce the homicide to manslaughter. If it should be shown that the killing arose from provocation at the time of the act, and that the prisoner was too drunk at that particular time to carry in his mind any previous malice he entertained, if such existed, this will be of weight with the jury in mitigation of the offense, as rendering the presumption correct that he yielded to provocation and not to malice. Therefore, while the law holds men criminally responsible for what they do under the influence of liquor, yet if the habit begets frenzy or insanity such as delirium tremens, the act becomes excusable, the same as for other causes operating in the same way.

II.248.16

—With respect to criminal acts viewed as an injury to the public, this rule is laid down: Whenever the public believes that an act of wrong to individuals is of a character requiring the public protection for the wronged individual, the public assumes the act of punishment as its own suit, and makes the act itself a crime. And the rule of law is still broader in its general significance. No one can have a private action under criminal law. Therefore unless there were a public remedy the transgression would go unpunished. This doctrine is also asserted when the injury arising to the public is by a corporation or body of men, as when the law invests a corporation with the duty of repairing a public way, a neglect of such duty or refusal upon the part of the corporation, is indictable at common law. Thus the law protects the individual, in the protection of the community. Says Bishop, in commenting on this rule of law: "In all ages and countries the path of human improvement is macadamized with bones and wet with blood. The strong tread down and trample out the feeble; and by ending them diminish the average weakness of the race, and the conflict which goes on among the survivors strengthens their bodies and minds, and the acquired vigor passes down to succeeding generations. But in the conflict which prevails among men there is a point beyond which if it proceeds it injures the community in a way requiring criminal prosecution for what is done. * * If, therefore, two or more persons undertake any of the controversies of life, and one of them assumes toward another or the rest what the law deems to be unfair ground, the community interferes and punishes the wrong by a criminal prosecution. In estimating what is fair ground we are simply to inquire what view the common law takes of the question. The old common law, originating in an age of rough minds, iron sinews and semi-barbarous manners, demanded less fairness than is required by the superior culture and finer moral sentiments of modern times. And the demand increases as we progress in civilization. The common law has, therefore, been expanded by slow and insensible gradations, and by legislation which both adds to the number of crimes and enlarges the boundaries and augments the punishments of the old ones."

II.248.17

—With respect to the common law divisions of crime, by the old rule it is divided into treason, felony and misdemeanors. In England, treason is of two kinds, high and petit. In the United States it is confined to the act of levying war against the United States and giving aid and comfort to its enemies. All treason is felony, and with the aggravation that makes it a greater offense it is rendered the most heinous of this classification of crimes. Felony, when a common law offense in England, will usually be the same in the United States. There are some exceptions founded on special reasons. It is provided by statute in some of the states that all offenses punishable either by death or by imprisonment in the state prison, shall be felonies. Any crime less than a felony is termed a misdemeanor. Russell on Crimes thus defines it: The word misdemeanor, in its usual acceptation, is applied to all those crimes and offenses for which the law has not provided a particular name, and they may be punished according to the degree of the offense by fine and imprisonment, or by both. A misdemeanor is, in truth, any crime less than felony; and the word is generally used in contradistinction to felony, comprehending all indictable offenses which do not amount to felony, such as perjury, libel, conspiracies, battery, and public nuisances.

II.248.18

—In criminal law jurisprudence, an accessory is a person who participates in a felony without coming sufficiently near to become a principal. A person may be an accessory both before and after the fact. An accessory before the fact is one who aids and assists by his will or command another's felonious act, committed while he himself is too remote from the act to be a principal; as when a husband commands his wife, or a master his servant, to perform for his benefit some crime, which thing is in his absence performed through fear or affection, constraining an inferior or subject mind. If, before the birth of a child, a mother is counseled to murder her offspring when born, and she does so, the person so advising is an accessory in the murder, before the fact. If several parties plan the uttering of a forged order, where the act would be a statutory felony, and in the absence of all the others, one of them utters it, an indictment will lie for the utterer as principal and all of the others as accessories. Murder of the second degree admits of accessories before the fact. A wife may be an accessory before the fact in a crime of her husband.

II.248.19

—An accessory after the fact is one who receives, harbors and assists to elude justice, one whom he knows to be guilty of felony. The true test for determining whether a party is an accessory after the fact is, to consider whether what he does is done by way of personal help to his principal with a view of enabling him to escape punishment, the nature of the aid rendered being unimportant. If a person furnishes another, whom he knows to have committed a felony, with a horse to escape arrest, or conceals him from search, or feeds and shelters him, or exercises violence in his behalf toward those who lawfully hold the prisoner, or attempts his rescue from the officers of the law, he is an accessory, and may be held to answer at the election of a prosecuting power for the crime of accessory to another's felony, or for a substantive crime. The receiver of stolen goods is not an accessory, as he renders no aid to the felon, but he can be indicted at common law for the misprision of knowing the thief, and failing to prosecute him. There are no accessories, either before or after the fact, to misdemeanors. In the latter case, they are usually too small for the law to notice; and in the former, should they approach sufficiently near to be an accessory, they will be indicted as principal.

II.248.20

—Compounding a crime is agreeing with a criminal not to prosecute him. It is accessorial to the principal offense, as in the case of a misdemeanor. The party compounding may be proceeded against without reference to the prosecution or conviction of the offender.

II.248.21

—Misprision of felony is a criminal neglect to either prevent the commission of a felony by another, or to bring the party to justice known to be guilty of felony. Misprision of treason is the same of treason, and misprision of misdemeanor is unknown to the law A statute of the United States provides: "If any persons or person, having knowledge of the actual commission of the crime of willful murder or other felony upon the high seas, or within any fort, arsenal, dockyard, magazine or other place or district of country under the sole and exclusive jurisdiction of the United States, shall conceal and not as soon as may be disclose and make known the same to some one of the judges or other persons in civil or military authority under the United States, on conviction thereof such person or persons shall be adjudged guilty of misprision of felony, and shall be imprisoned not exceeding three years and fined not exceeding five hundred dollars." Another section makes it misprision of treason, punishable by imprisonment not exceeding seven years and fine not exceeding one thousand dollars, if any person, having knowledge of the commission of any treason against the United States, "shall conceal, and not, as soon as may be, disclose and make known the same to the president of the United States or some one of the judges thereof, or to the president or governor of a particular state, or some one of the judges or justices thereof."

II.248.22

—With respect to the supervision of the domestic relations by the criminal law, the principle prevails that the parent possesses the legal authority to compel obedience by the exercise of merciful judgment. Sometimes parents are unmerciful, and then the law intervenes to protect the helpless child, and punish the parent for an abuse of parental trust. The general rule is, that the parent may inflict moderate correction. If he go beyond this, he is indictable for assault and battery, and if the child should die from the same, he is indictable for felonious homicide. The parent is likewise criminally guilty who refuses or neglects to provide his child with food and clothing, or exposes him to the elements, or abandons his offspring.

II.248.23

—The relations of guardian and ward are usually established by the statutes of the states in which they reside, and differ under diverse circumstances. The relations with respect to chastisement between the teacher and pupil are similar in many respects to those existing between parent and child. Between husband and wife the rule in this country is, that the husband has no right to chastise his wife, and an indictment for assault will lie against him if he does. He may, however, under certain circumstances, restrain her movements.

II.248.24

—In civil jurisprudence, there is a principle that admits of a rehearing of a cause under proper forms and circumstances. In the criminal law, however, this general right is restrained by the maxim laid down by Blackstone, "that no man is to be brought into jeopardy of his life more than once for the same offense." This principle, which is recognized in the United States by the common law, has likewise been engrafted upon our system by a provision in the constitution which declares "that no person shall be subject, for the same offense, to be twice put in jeopardy of life or limb." While this provision binds the United States only, the principle has nevertheless been extended into the states, by its adoption into state constitutions, and the courts of all the states accept it as the true common law rule.

II.248.25

—With respect to the protection of the public health, anything that tends toward its impairment is indictable at common law. A person sick with an infectious disease is not permitted to go among his neighbors, nor to carry an infected child where the public may contract the disease. Nor can a man bring a horse infected with glanders into a public place. For all of these offenses he is indictable. So manufactures, in themselves lawful but calculated to impair the public health, can not be permitted in populous places. Under this rule it is an indictable offense to sell or cause to be consumed provisions injurious to the public health. There are many others of a statutory nature which do not come within the scope of the common law.

II.248.26

—Public morals are protected by public law. Under the criminal law, swearing in public and blasphemy are indictable offenses. So also are the public utterances of obscene words; the publishing of obscene prints and writings; the keeping of bawdy houses; the indecent and public exposure of the person; the public buying and selling of a wife; polygamy, and the horrible crime of sodomy; all these are indictable under the common law, and the crime of incest by statutory enactment. Indecent public shows; gaming houses; disorderly inns, or any other disorderly house; casting of dead bodies of human beings into a river, without the rites of Christian sepulture; the stealing of a corpse; resurrecting it for purposes of dissection; are all indictable offenses. The common law, having reverence for life and wealth of population, punishes abortion; indicts for murder one who voluntarily deprives another of his life at his own request, or who persuades another to take his life, and stands by at the time of the act; recognizes the act of self destruction as criminal, and holds the survivor accessory to the murder of an individual, if two men conspire to commit suicide, and, together attempting the act, one expires and the other survives. It also takes cognizance of matters of trade, and punishes the act of forestalling the market as an offense against public trade and an injury to the rights of the fair trader. Russell on Crimes says: "Every practice or device by art, conspiracy, words or news, to enhance the price of victuals or other merchandise, has been held to be unlawful; as being prejudicial to trade and commerce and injurious to the public in general. Spreading false news; buying things in the market as a whole commodity, with intent to sell at an unreasonable price, is an offense indictable at common law." So also the criminal law punishes all wrongful violations of the convenience or safety of the public. Under this principle all obstructions of highways, public squares, harbors, navigable rivers, and injuries done to such public ways; all neglect or refusal to keep them in repair by those in authority; the carrying on of noxious trades near highways or public places; making of great noises to the great discomfort of the neighborhood; storing of large quantities of gunpowder and other inflammable and combustible articles in public places; the refusal of an innkeeper to receive a lawful guest in his house of public entertainment, after a tender of money in payment of the same; also all public disturbances, riots, routs and unlawful assemblies, where three or more have gathered together to perform an unlawful act; a public prize fight; an assault and battery; forcible entry and detainer; the riotous entry of a landlord into a house to terminate a lease; riotous tearing down of inclosures; the breaking of windows with wood or stone at night, to the terror of the inmates; the breaking into a dwelling house in a loud and noisy manner, so that a woman with child, being frightened, miscarries; the sending of a challenge to fight a duel; going about armed, to the terror of the public; hazarding the lives of the people by furious driving in populous places; stirring up neighborhood broils by publishing libels; eavesdropping; being a common scold; the disturbance of public worship and public meetings, barratry, maintenance and champerty, are all indictable offenses at common law.

II.248.27

—With respect to the individual the criminal law spreads its protection over all of his individual as well as his public rights. He is maintained in his personal preservation and comfort; in acquiring and retaining property; and in his reputation. The greatest offense under the law against an individual is the act depriving him of his life. This is called felonious homicide. The common law divides this crime into two grades, murder and manslaughter. This repugnant crime, in the first degree, is visited with the highest punishment known to the law, the taking of the murderer's life also. There are two offenses against the person of the individual usually combined in one charge, to wit, assault and battery. There is no more odious form of violence in either law or morals than the crime of rape. It is visited with the severest punishment known to the law, other than capital, and by statute in some of the states by capital punishment. As every form of violence or unlawful physical restraint is indictable, so the law punishes any attempt to forcibly carry off for marriage a woman, against her will. Malicious mischief, although but a trespass at common law, is made by statute penal to a high degree. A cheat or fraud at common law is the criminal deception of an individual through the means of a false symbol or token, as by counterfeiting or forgery with intent to defraud. Extortion is also punished as an infringement on the rights of the individual, as taking from him that which is not due from him.

II.248.28

—As the law leaves to an individual the care of his own reputation, no damage to a reputation by a single party, will be entertained as the foundation of a criminal prosecution. Indictments for libel and slander are founded upon the tendency of those acts to create a breach of the peace and not upon the injury to reputation which the individual has sustained, and the offense is therefore not mitigated by the charge being true, which in a civil suit for damages would be vital.

II.248.29

—Of course from the circumscribed nature of this article, it has been possible only to glance, as it were, at the salient features of criminal law jurisprudence. As a science of ethics as well as law, it sweeps with broad pinions and unerring wing over a wide field of human rights and wrongs. To be thoroughly understood in all its rules and applications, it must be completely explored in all of its extended fields and operations.

JNO. W. CLAMPITT.

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