the cause; or ascribe them with more correctness to mere negligence in preventing safeguards, or to an act renderedimproper by nothing but the want of safeguards." This English view is the doctrine also of the courts of New Jersey, Massachusetts, and Vermont; 4 and certainly it is the best established in principle.

§ 309. Let it be understood, however, that not every act of misfeasance is indictable in a corporation which would be so in an individual. The act must come within the scope of corporate duty.5 Said Denman, C. J., in the case just cited: 6 "Some dicta occur in the old cases, 'A corporation cannot be guilty of treason or of felony.' It might be added, 'of perjury, or offences against the person.' The court of com

mon pleas lately held, that corporations might be sued in trespass; but nobody has sought to fix them with acts of immorality. These plainly derive their character from the corrupted mind of the person committing them, and are violations of the social duties that belong to men and subjects. A corporation, which, as such, has no such duties, cannot be guilty in these cases; but it may be guilty, as a body corporate, of commanding acts to be done to the nuisance of the community at large." So it is said, that a corporation cannot be guilty of an assault, or riot, or other crime involving personal violence, or any felony.8

1

Reg. v. Great North of England Railway, 9 Q. B. 315, 10 Jur. 755, 16 Law J. N. s. M. C. 16; Rex v. Medley, 6 Car. & P. 292; Angell & Ames Corp. § 395. In England it is even held, that a corporation may be made a defendant in the civil action for assault and battery. Eastern Counties Railway v. Broom, 6 Exch. 314, 15 Jur. 297, 20 Law J. N. s. Exch. 196. The State v. Morris & Essex Railroad, 3 Zab. 360.

3 Commonwealth v. New Bedford Bridge, 2 Gray, 339. The State v. Vermont Central Railroad, 1 Wms. Vt. 103.

6

See ante, § 306.

Reg. v. Great North of England Railway, 9 Q. B. 315, 326.

But see ante, § 308, note.

* Rex v. Birmingham and Gloucester Railway, 2 Gale & D. 236, 9 Car. &

P. 469, 6 Jur. 804, 3 Q. B. 223; Orr v. Bank of United States, 1 Ohio, 36.

§ 310. Though a corporation is indictable for a particular wrong, still the individual members of it, who participate in the wrong, may be indictable also for the same act.1 But the members and the officers are not always so liable, when the corporation is.2 This matter, however, rests on principles sufficiently explained elsewhere in the present volume.

....

"A corporation aggregate of many is invisible, immortal, and rests only in intendment and consideration of the law. . . . . They cannot commit treason, nor be outlawed, nor excommunicate, for they have no souls, neither can they appear in person, but by attorney." Case of Sutton's Hospital, 10 Co. 23, 32 b. See however a note to the last section, in which it appears that a corporation may commit assault and battery.

1

1 Reg. v. Great North of England Railway, 9 Q. B. 315, 327; Kane v. People, 3 Wend. 363; Edge v. Commonwealth, 7 Barr, 275; Kimbrough v. The State, 10 Humph. 97; Rex v. Gaul, Holt, 363. See also Sloan v. The State, 8 Blackf. 361; Kane v. People, 8 Wend. 203; Rex v. Kingston, 8 East, 41.

The State v. Barksdale, 5 Humph. 154.

[351]

BOOK IV.

THE AСТ.

CHAPTER XXV.

PRELIMINARY VIEWS.

§ 311. HAVING considered the intent necessary to constitute a crime, we now come to the act.

§ 311 a. The doctrine, that the intent must be accompanied by some act, has already been mentioned. Thus the intent and act together complete the crime. But these two elements in combination, like physical compounds, exert each an influence on the other, and receive each a quality and an accretion from the other. Therefore our discussion of the act must be conducted with constant reference to the intent.

§ 311 b. In the present volume we omit from our statements of the law those expanded explanations of particular offences with which the second volume is occupied. But, in other respects, the discussions in this volume are designed to be full.

CHAPTER XXVI.

THE ACT AND INTENT TOGETHER.

§ 311 c. UNDER this title, we shall present only general views; because the operation of the intent and the act in combination is matter running through all the titles of the criminal law.

§ 312. We have seen,1 that the tribunals take notice of wrongs only when the complaining party is entitled to complain. And he is so entitled only when, besides having an interest in the matter, he has also suffered. Now the State, that complains in criminal cases,2 suffers not from the imaginations of men until some action has followed. Hence the rule,3 that there must be an act, as well as an intent, to constitute in law a crime. It is therefore no offence at the common law, to have in one's possession counterfeit coin or forged paper or bills of a non-existing bank, with intent to pass them as good; or tools for forging, with intent to use them; or an obscene libel, with intent to publish it; because the bare possession is not an act. But to procure such

See, besides the cases cited at § 229, Rex v. Green, 7 Car. & P. 156; Reg. v. Chapman, 1 Den. C. C. 432, Temp. & M. 90, 13 Jur. 885; Case of Le Tigre, 3 Wash. C. C. 567, 572; Rex v. Sutton, Cas. Temp. Hardw. 354, 357, 2 Stra. 1074; Reg. v. Turvy, Holt, 364.

Rex v. Stewart, Russ. & Ry. 288, 1 Russ. Crimes, Grea. Ed. 48; Reg. v. Fulton, Jebb, 48; Rex v. Heath, Russ. & Ry. 184; Commonwealth v. Morse, 2 Mass. 138; Dugdale v. Reg. 16 Eng. L. & Eq. 380, 1 Ellis & B.

money or other things with the criminal intent mentioned is an offence; because the procuring or receiving is an act.1 This is a nice distinction; yet the principles of the common law clearly require it. There are, however, English and American statutes, which, in respect to particular offences mentioned in them, make the bare possession a sufficient act; and possibly some of the older of these English statutes are common law in this country.2 So, at the common law, a possession may be shown in evidence against a prisoner on a charge of procuring.3

§ 313. A conspiring together of two or more persons is sufficiently an act, without any step taken in pursuance of the conspiracy.5 Legislative enactments have modified this rule in some of the States; as in New York, where the result of the provisions in the Revised Statutes is stated to be, that,

435, Dears. 64, 22 Law J. N. s. M. C. 50, 17 Jur. 546; The State v. Penny, 1 Car. Law Repos. 517; Rex v. Rosenstein, 2 Car. & P. 414. But see Reg. v. Willis, Jebb, 48, note.

1 Rex v. Fuller, Russ. & Ry. 308; Dugdale v. Reg. 16 Eng. L. & Eq. 380, 1 Ellis & B. 435.

See Rex v. Sutton, Cas. temp. Hardw. 354, 357, 2 Stra. 1074. From the report of this case in Strange we should infer, that a possession is alone a sufficient act at the common law; and therefore some modern writers have supposed, that the rule was so anciently, and was changed by later decisions. But the more extended report in Cas. temp. Hardw. ut supra, seems to put this case on one of the English statutes. As to what English statutes are common law in the United States, see ante, § 11, 13, 15.

Rex v. Fuller, Russ. & Ry. 308; Brown's Case, 1 Lewin, 42.

+ Commonwealth v. Manson, 2 Ashm. 31; The State v. Tom, 2 Dev. 569. 5 Commonwealth v. Judd, 2 Mass. 329, 337; Commonwealth v. Tibbetts, 2 Mass. 536, 538; Commonwealth v. Warren, 6 Mass. 74; People v. Mather, 4 Wend. 229; The State v. Cawood, 2 Stew. 360; The State v. Buchanan, 5 Har. & J. 317; Collins v. Commonwealth, 3 S. & R. 220; Morgan v. Bliss, 2 Mass. 111, 112; O'Connell v. Reg. 11 Cl. & F. 155, 9 Jur. 25; Commonwealth v. Eastman, 1 Cush. 189; Commonwealth v. McKisson, 8 S. & R. 420; Sydserff v. Reg. 11 Q. B. 245; People v. Richards, 1 Mich. 216; The State v. Ripley, 31 Maine, 386; Reg. v. Turvy, Holt, 364; The State v. Noyes, 23 Vt. 415,