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policy as already stated.' If we are required to supply a further test, we might say that public policy demands the indictability of all immoral acts of which punishment by law is the proper retribution. From this class are to be excluded immoralities which are not of enough consequence to be prosecuted, and immoralities which the public welfare requires should remain unprosecuted.

§ 15. The common law may be defined to be right reason, applicable to present issues, in analogy with prior rulings of the courts and opinions of authoritative jurists. In accordance with this view, and adopting the principle that

Distinction between public and private remedies.

crimes at common law, apart from statute, are offences which public policy manifestly requires to be prosecuted by the State, we may be able to give logical expression to the distinction between wrongs which can be redressed only by private suit, and wrongs the perpetrators of which may be proceeded against by public prosecution. That such a distinction exists in practice we have numerous instances. I may have a right to have the air about me pure; but this does not make it an indictable offence for a neighbor to invade this right by opening on his land a drain whose odors reach to no one but myself. I may exclude trespassers from my grounds; I may sue them for damages caused by their trespass; but I cannot, for the mere trespass, if there be no malicious hurt inflicted, prosecute them criminally. On the other hand, if the drain is such as to affect the community injuriously, or the trespass be conducted in such a way as to threaten the public peace, an indictment lies. The reason for this, if the above definition be correct, is that public policy in the first class of cases does not require the State to intervene, while in the second class of cases it does so require. In other words, in all matters in which the peace, order, or health of the community is not concerned, a sound social economy requires that men should settle their differences by themselves, either by compromise or private suit, just as a sound social economy requires that they should conduct their own business and regulate their own families, provided that in so doing they do not threaten public peace, or disturb public comfort, or create public scandal. As to acts, however, threatening public peace, or disturbing public comfort, or creating public scandal, it is the duty of the State to intervene. We have abundant illustrations of this dis

Meyer, 4, while concurring in test incompatibility with the wellthe reasoning of the text, makes the being of the Commonwealth.

tinction in other departments of social science; the principle being that it is not within the province of the State to enforce duties purely private. A board of health, for instance, may properly forbid unwholesome food to be sold in a market, but it cannot properly forbid an individual from eating food that will probably make him sick. Public scandalous drunkenness, to take another illustration, is indictable at common law; but common drunkenness, which is not a public scandal, is not indictable. The same distinction applies to remedies. The State is only justified in intervening to protect interests that concern itself directly; and if wrongs be committed strictly private in their character, then these wrongs must be redressed by private suit. It may be said that a distinction of this kind, based on public policy, is one to be laid down, not by the courts, but by the legislature.' This is no doubt the case where there is a code which undertakes to cover the whole ground, so that no offence is indictable which is not made indictable by the code. It is otherwise, however, when offences are to be defined by the common law. In the latter case, there is a wide range of offences as to which the judges are obliged to apply the test of public policy. The banks of a canal, for instance, or the embankments of a railroad, are wantonly torn down by a marauder. The case is one of first impression in the courts, as no one has heretofore been prosecuted for doing this particular thing. Is the offence indictable as malicious mischief? It certainly would not be, where nobody but the owner is affected by the trespass, and where no specific malice to such owner is shown. Yet as it is, in consequence of the danger to the public if canals or railroads be subject to depredations of this kind—i. e., on grounds of public policy—such an offence would be held indictable. I may be standing by a river side, to take another illustration, and see a man drowning. I do not help him out, though I could readily do so; but as omissions to perform acts of charity cannot be made indictable without great disarrangement of industry, I am not indictable for this omission, immoral as it is. I am indictable, however, on the grounds of public policy, if, being charged, as a public officer, with the protection of persons bathing on the spot, or having undertaken specially to protect this particular person, I neglect to perform my duty. This, however,

1 See infra, ¿ 29.

1065 et seq.

See infra,

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Infra, 130, 133.

in Germany as to the distinction between public and private wrongs. By Stahl a crime assails and defies the

Several theories have been proposed dominion and dignity of the State by

concerns the subject-matter of crime. So far as concerns the form, the distinction is that criminal wrongs are punishable by the State, while for civil wrongs redress is obtained at the suit of the party injured. A wrong, however, may be in one aspect civil, in another criminal.2

dencies, but in the difference between the modes wherein they are respectively pursued, or wherein the sanction is applied in the two cases. An offence which is pursued at the discretion of the injured party or his representative is a civil injury. An offence which is pursued by the sovereign, or by the

England, in the name of the sovereign, is a crime." Austin's Jur. ed. 1863, ii. 72; ed. 1869, 1092, adopted in Nasmith's Inst. 63. The defects of this distinction are pointed out in Whart. Com. Am. Law, ?? 56 et seq.

positive assaults, which are by them- supposed difference between their tenselves under all circumstances (in thesi) a violation of law; while there is no such defiance in civil wrongs, since here we have exclusively to do with acts which are only unlawful (in hypothesi) under the given relations. On the other hand, Berner and Köstlin, representing the Hegelian School, include under crimes exclusively the subordinates of the sovereign, or, as in conscious resistance of the general will by the individual will; under civil wrongs exclusively, acts whose perpetrators are unconscious of wrong. By Hälschner crimes consist of absolute wrongs, that is to say, wrongs as against the objective existing law; while civil wrongs are merely relative, that is to say, wrongs exclusively directed against the privileges of other persons. Geib, ii. 175. That there is any definable distinction is denied by Bekker, Theorie, s. 108; Geib, ii. 173; Merkel, Abt. i. p. 41; and Binding, Normen, s. 172 et seq. By the latter writer the view in the text is assailed elaborately.

Blackstone's distinction, that "civil injuries are private wrongs and concern individuals only, while crimes are public wrongs and affect the whole community," is objected to by Austin on the ground that many crimes are private wrongs, and many civil injuries affect the whole community. See R. v. Trafford, 1 B. & Ad. 874, 1831; R. v. Paget, 3 F. & F. 29, 1862; Resp. v. Teischer, 1 Dall. 335, 1788; Dobbins's Distillery v. U. S., 96 U. S. 395, 1877. Mr. Austin, in his own definition, begs the question. "The difference," he says, "between crimes and civil injuries is not to be sought for in a

Sir H. Maine's explanation of the origin of the distinction leads to the definition in the text. A crime, he tells us, in the original conception of the term, was an act "involving such high issues that the State, instead of leaving its cognizance to the civil tribunal or the religious court, directed a special law or privilegium against the perpetrator." Maine's Ancient Law, 1870, 372.

1 Mere indictability is not the test, since there are cases in which an indictment is prescribed merely as a civil remedy. R. v. Paget, 3 F. & F. 29, 1862; Bancroft v. Mitchell, L. R. 2 Q. B. 549, 1867. Similarly, a suit for a penalty, though civil in form, is really criminal in its nature; Boyd v. U. S., 116 U. S. 616; s. c. 6 Sup. Ct. Rep. 524, 1886; Lees v. U. S., 14 Sup. Ct. Rep. 163, 1893; provided the action prohibited be an offence either at common law or by statute. City of Huron v. Carter, (S. D.) 57 N. W. Rep. 947, 1894.

2 Infra, 3 31 b.

law in force

United

§ 15 a. The common law of England was adopted as a part of their own common law by such of the American colonies English as were of English settlement, and is operative in the common States embracing or peopled from such colonies. And, in the as is elsewhere seen, even in States where the common States. law is by legislation declared not to be in force, it nevertheless remains in force for the purpose of interpreting legislative action. We have a curious illustration of this in Texas, where it was at one time required that an offence should be "expressly defined" by statute. This was found to be impracticable; and now the common law is resorted to for a definition of statutory terms.3

1 See cases cited infra, ?? 17 et seq., and see Com. v. Newell, 7 Mass. 245, 1810; State v. Danforth, 3 Conn. 112, 1819; State v. Briggs, 1 Aikens, 226, 1826; State v. Cawood, 2 Stewart, 360, 1830; Grisham v. State, 2 Yerg. 589, 1831; State v. Rollins, 8 N. H. 550, 1837; Loomis v. Edgerton, 19 Wend. 419, 1838; State v. Huntley, 3 Ired. 418, 1843; Com. v. Chapman, 13 Metc. 68, 1847; State v. Twogood, 7 Iowa, 252, 1858; Smith v. People, 25 Ill. 17, 1860; State v. Pulle, 7 Minn. 164, 1866; Ex parte Blanchard, 9 Nev. 101, 1874; Territory v. Ye Wan, 2 Mont. 478, 1876.

It is now settled that the federal courts have no common law criminal jurisdiction. In re Greene, 52 Fed. Rep. 104, 1892; U. S. v. Eaton, 144 U. S. 677, 1892. See infra, & 253. The New York Penal Code of 1882 appears to abolish the common law (32); but see

675, which but for the insertion of the word wilfully would be a re-enactment of the common law.

State, 107 Ind. 185, 1886; and so to a limited extent in other States. See Estes v. Carter, 10 Iowa, 400, 1860; Ex parte Meyers, 44 Mo. 279, 1869. As to Pennsylvania, see infra, 26. In Louisiana the English common law has been established by statute. State v. Davis, 22 La. An. 77, 1870. The evolution of the common law in America is discussed in Whart. Com. Am. Law, 24 et seq. How far the ecclesiastical or canon law of Christendom is here effective will be considered elsewhere. Infra, ¿? 20, 1717, 1741. See Grisham v. State, 2 Yerg. 589, 1831.

2 Whart. Com. Am. Law, ?? 12, 201. See infra, 1? 29, 255. So, where an act is made unlawful and no proceeding is specified, it must be prosecuted according to the forms of the common law. State v. Parker, 91 N. C. 650, 1884.

Ex parte Bergen, 14 Tex. App. 52, 1883; Prindle v. State, 31 Tex. Cr. 551, 1893. In general, whenever an offence is not defined by the statute prohibiting it, its definition is to be sought at common law. Wall v. State, 23 Ind. 150, 1864; U. S. v. King, 34 Fed. Rep. 302, 1888. In re Greene, 52 Fed. Rep. 104, 1892; State v. Williams, 34 La. An. 87, 1883; State v. Hagan, (La.) 12 So. Rep. 929, 1893.

In Ohio it has been held that the criminal side of the English common law is not in force. Vanvalkenburg v. State, 11 Ohio, 404, 1842; Smith v. State, 12 Ohio, 466, 1861. Such is the rule in Indiana, by statute; Hackney v. State, 8 Ind. 494, 1856; Marvin v. State, 19 Ind. 181, 1862; Jones v. State, 59 Ind. 229, 1877; Stephens v. See infra, & 579.

Want of
English

common

law authorities does not preclude an offence

indictable

United

States.

§ 16. Certain points of difference, however, between the penal policy of England' and that of the United States must be kept in mind in determining how far the want of common law authority in one country is to weigh upon the courts of the other. There is a grade of offences, in the first place, comprehending adultery, fornication, and from being lewdness in general, together with those misdemeanors at common connected more particularly with the conduct of the rites law in the and observances of religion, which in England is cognizable chiefly in the ecclesiastical courts, but which with us is in many States punished by indictment at common law. In England, in the second place, from the earliest period of judicial history, statutes were from time to time passed which defined the limits and determined the punishment of almost every offence, as it in its turn attracted legislative action. Thus, in the English books, few cases are found of malicious mischief at common law; penalties more summary than the common law afforded being provided for the protection of each species of property as it became the object of investment. No case, for instance, is to be found of an indictment at common law for malicious injury done to locks or other improvements on navigable rivers; because, as soon as locks were introduced into England, and canals built, such offences, by the statute of 1 Geo. II., st. 2, c. 19, were made felonious, and were subject to transportation. So, though elementary writers agree that the destruction of an infant en ventre sa mere is indictable at common law, no case is to be found in England where such is adjudged by the courts, the statute of 43 Geo. III. c. 58, making it a felony, being enacted about the time when the offence first required the action of the public authorities. The want of English precedents in such cases does not show that offences of such character were not cognizable at common law; it shows only that at an early period common law remedies gave way to statutes with provisions more specific and penalties more severe. Many offences, accordingly, which have been punished exclusively by statute in England, have been brought in this country within common law sanction, and have been considered misdemeanors. We cannot

3

1 Black. Com. 65 w; 1 Hawk. P. C. c. 5, s. 1; 1 East P. C. c. 1, s. 1; 1

Russell, Crimes, 46.

3 See infra, ?? 1066-7.

Bracton, 1. 3, c. 21; 3 Coke's Inst. 50; 1 Hawk. P. C. 94; 1 Vesey,

2 Grisham v. State, 2 Yerg. 589, 98; 1 Russell, Crimes, 671. Infra,

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