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tive words is merely cumulative, and takes not away the prior law unless repugnant to it; so that there may be doubt to what extent these affirmative provisions, to aid in the prosecution of offenders, relieve individuals of any duty before recognized in the law. The doctrine of this section in other words is, that perhaps, on principle, persons who in this country have suffered from the felonious acts of others need not do more than take the initiatory steps against the offenders, before carrying on their civil suit; yet that this proposition is by no means clear even on principle, while the tribunals seem not to have hitherto recognized the distinction by any direct decision.

§ 333. Plain as this question seems, thus stated, the American courts have taken almost every possible view of it. In some of them, as of Alabama,1 and perhaps of New Hampshire (the matter being in the latter State extremely doubtful),2 the full English doctrine is held. The Maine tribunal, apparently sustained by some early Massachusetts authorities, restricted the rule to robberies and larcenies; but a recent statute of this State has altogether removed the disability. In South Carolina, Massachusetts, and appar ently Tennessee, the English doctrine has been utterly discarded. The Connecticut courts seem to have limited it to such felonies as are punishable capitally; and the Georgia, to felonies at common law, in exclusion of those created

1 Morgan v. Rhodes, 1 Stew. 70; McGrew v. Cato, Minor, 8; Morton v. Bradley, 27 Ala. 640; Martin v. Martin, 25 Ala. 201.

2 Grafton Bank v. Flanders, 4 N. H. 239; Pettingill v. Rideout, 6 N. H.


* Crowell v. Merrick, 19 Maine, 392; Belknap v. Milliken, 23 Maine, 381 ; Foster v. Tucker, 3 Greenl. 458; Boody v. Keating, 4 Greenl. 164.

Boardman v. Gore, 15 Mass. 331.

5 See reporter's note to Belknap v. Milliken, 23 Maine, 381.

Cannon v. Burris, 1 Hill, S. C. 372; Robinson v. Culp, 1 Const. 231.

7 Boston and Worcester Railroad v. Dana, 1 Gray, 83.


. Ballew v. Alexander, 6 Humph. 433. And see post, § 334, note. Cross v. Guthery, 2 Root, 90.

by statute.1 In New Jersey,2 Virginia, North Carolina,1 Missouri, and Texas, the question appears to be in doubt, with perhaps a tendency against the English doctrine.7

§ 334. The New Hampshire court has held, that the party suffering from a felony need not wait till the criminal matter is finally disposed of, before bringing his action; but that it is sufficient to delay till then the trial. This distinction seems not directly to conflict with any common law authorities, but to be in harmony with the principle on which they all repose. The plaintiff is in no fault while he is doing all he can, and as fast as he can, in respect to the crime; and no reason appears why he may not pursue his civil remedy, only not pressing his suit to a final termination in advance of his public duty.

§ 335. The cause for this rejection in some of the United States, and for this doubting in others, of the common law doctrine under consideration, appears to have been mainly, though not wholly, a misapprehension of the true legal reason on which it is founded. It has been assumed to rest on the English law of forfeiture of life and property in cases of felony; and to stand thus, that, as the goods are for the

1 Adams v. Barrett, 5 Ga. 404; Neal v. Farmer, 9 Ga. 555; Dacy v. Gay, 16 Ga. 203.

2 Patton v. Freeman, Coxe, 113.

3 Allison v. Farmers Bank, 6 Rand. 204; Cook v. Darby, 4 Munf. 444.

* White v. Fort, 3 Hawks, 251; Smith v. Weaver, 1 Taylor, 58, 2 Hayw.


Nash v. Primm, 1 Misso. 178; Mann v. Trabue, 1 Misso. 709.

Mitchell v. Minns, 8 Texas, 6.

See also Piscataqua Bank v. Turnley, 1 Miles, 312; Plummer v. Webb, Ware, 75; Dunlop v. Munroe, 1 Cranch C. C. 536.


Pettingill v. Rideout, 6 N. II. 454. And see Smith v. Weaver, 1 Taylor, -58, 2 Hayw. 108, as sustaining the same view. See also Ballew v. Alexander, 6 Humph. 433, which may really rest on this ground, though the judge who delivered the opinion stated, as the reason, that the English doctrine is not applicable in this country. See also Deakin v. Pread, 4 Taunt. 825.

crown, and the body is for the gallows, no benefit could result to the plaintiff from a judgment in the civil suit. And the American argument has been, that, since the goods in this country are not forfeited, and the felon's life is not ordinarily taken, the consequence of this removal of the foundation must be the fall of the superstructure, in obedience to the maxim, Cessante ratione legis, cessat ipsa lex,1 the rule of law ceases with its reason.

§336. Now we should remember, that the reason of the law is a thing inherent in the law itself. It may be, in a particular instance, the same which the judges have stated, or it may not, according as they have been correct or otherwise in their statement. In the matter now before us a single consideration will show, that the reason mentioned in the last section cannot be the true one; because, if it were, the felon could no more be sued on a claim disconnected from the felony, and by a person not the sufferer, than by the sufferer in respect to the precise thing; and because also he could no more be sued after a conviction than before. But as the law does not contain these effects, so neither of course does it contain their cause. Hence if every judge, English and American, and every text writer had laid down this reason, we should see that all had fallen into error. Then let us inquire, whether the reason assigned a few sections back 2 is the true one. We perceive, that, according to all the authorities, the only impediment to the carrying on of the civil suit is the neglect to prosecute, and that the right to carry it on keeps even pace with the removal of this neglect: thence it follows, that the legal reason why the sufferer cannot maintain his civil proceeding, in those cases in which he is not permitted to maintain it, is because he has not prosecuted. The proposition may assume either the precise form

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we gave it, or the similar form it wears in most of the English cases; namely, that the policy of the law requires this stimulant to induce men to bring felons to justice. The result is the same.

§ 337. Then with regard to the maxim, that the rule fails with the reason on which it rests;1 while it is one of the most important maxims in the law, it is one of the most liable to be misapplied. Because often, after a rule has been created by some legal reason, the reason gradually in the mutation of things crumbles away, when the rule is found to have become so crystallized and solidified in the same gradual course, as to be immovable except by legislative power. And so it stands as a pure technical rule,2 to the reason of which we recur only to learn its quality, extent, and force. Whether the rule under examination should be regarded as one of these crystallized rules might be worthy of inquiry, had we not found, that the reason has not materially changed in this country, but that it remains substantially as it stood in England when our forefathers brought hither the body of the common law. Besides, if the reason had ceased, and if on this account the rule must cease also, then it would seem to follow, that the criminal offence of compounding crimes must no longer be recognized; for it is drawn from exactly the same reason,5 and, Cessante ratione legis, cessat ipsa lex. But the compounding of crimes is regarded as a common law offence in all the States where common law offences are recognized. The same also of misprision of felony.

§ 338. One method of argument on this question, by

1 Ante, § 335.

See ante, § 29.

And see Crowell v. Merrick, 19 Maine, 392.

Ante, § 332.

"What is the gist of the offence [of compounding felony]? It is the concealing of the crime, and abstaining from prosecution, to the detriment of the public." Commonwealth v. Pease, 16 Mass. 91, 93.

See authorities cited, ante, § 329.

which we might perhaps reach a conclusion different from the one here indicated, suggests itself. It is to consider, that misprision of felony, which stands one degree further removed from the principal offence than compounding felony, has ceased to be indictable because of the small amount of guilt it involves; and that also the policy of the law no longer requires individuals to communicate to the officers of justice information of the existence of felonies. True we have no legal authority for either, much less for both, of these propositions; and it would be difficult to sustain either of them by suggestions weighty in legal argument. But, if the proposi tions were both admitted, they might lead to the result of overturning the English doctrine.

§ 339. This so extensive discussion is a departure from the general plan of these commentaries; but it has been indulged in here, not so much on account of the importance of the subject, as exhibiting to the student and non-professional reader some principles of legal reasoning; and as showing the difference between it and reasoning addressed to the legislator, the difference, in other words, between the reasoning by which we ascertain what the law is, and that by which we form our judgments what it should be. If a man were in discussion before a legislator on this question, he might say to him, what (discarding the method intimated in the last section) would hardly be relevant spoken to a court, that the officers can do all the prosecuting; that there is no danger felons will not be sufficiently pursued; that the rule is favored in England because a judgment against a dead felon whose goods are forfeited can do no good, which reason does not exist in the United States; and he might add any other like considerations. And the person addressed, sitting as a legislator, might deem the considerations presented conclusive; but, sitting as a judge, quite too light to be taken into the balance.1

1 Those readers who, throughout these volumes, examine the decisions cited in the notes in connection with their perusal of the text, will some[379]

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