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cumstances no one can have his private action.1 Unless, however, there were a general or public remedy, the wrong would go unredressed. When, therefore, the thing done is of this nature, and sufficient in magnitude for the tribunals to notice,2 it is cognizable criminally. It need not be more intensely evil than torts for which, being directed merely against an individual, only a civil remedy is provided. Thus if a man goes on his neighbor's land and deadens a tree there growing, he exposes himself to a civil suit; if, upon public land, to a criminal; or, if a nuisance affects the public, it is indictable, while actionable if it affects only individuals; but it would be difficult to show the act to be in any greater degree evil in the latter cases than in the former ones.

§ 349. It is obvious, that whatever is made the subject of statutory prohibition is thus brought to the notice of the tribunals. So we see, carrying in our minds the principles stated in the last section, how it is, that, as already observed, when a statute forbids a thing affecting the public, but provides no penalty, the doing of it is indictable at the common law. If the thing were a special injury to an individual, he

1 Broom Leg. Max. 2d ed. 156; ante, § 327.

* Ante, § 320 et seq.

See ante, § 247, 257, 259, 298; Rex v. Gaul, Holt, 363; Crouther's case, Cro. Eliz. 654; Anonymous, Lofft, 185; Pennsylvania v. Gillespie, Addison, 267; Rex v. Lesingham, T. Raym. 205; Anonymous, Comb. 46; Rex v. Ford, 2 Stra. 1130; Commonwealth v. Webb, 6 Rand. 726; ante, § 237, 257; post, § 335.

* Commonwealth v. Eckert, 2 Browne, Pa. 249.

5 Rex v. Trafford, 1 B. & Ad. 874, where Tenterden, C. J., said: “We think there can be no doubt that if the wrong [a nuisance] would have entitled an individual owner of land to maintain an action for it, it is properly the subject of an indictment like the present for a public nuisance." p. 886. • Ante, § 84; and, besides the cases there cited, Rex v. Jones, 7 Mod. 410, 2 Stra. 1146; Rex v. Vaughan, Skin. 11; Rex v. Gregory, 2 Nev. & M. 478, 5 B. & Ad. 555; Rex v. Smith, 2 Doug. 441; W.'s case, Lofft, 44; Rex v. Cummings, 5 Mod. 179; Rex v. Hemmings, 3 Salk. 187; Crofton's case, 1 Mod. 34; Reg. v. Nott, 4 Q. B. 768, 1 Dav. & M. 1; Griffith v. Wells, 3 Denio, 226; Colburn v. Swett, 1 Met. 232; The State v. Thompson, 2

would have his common law action; and an indictment

Strob. 12; Rex v. Howard, 7 Mod. 307; Commonwealth v. Shattuck, 4 Cush. 141, 146; Tate v. The State, 5 Blackf. 73; People v. Norton, 7 Barb. 477; Rex v. Rogers, 2 Keny. 373; The State v.Justices of Lenoir, 4 Hawks, 194; The State v. Williams, 12 Ired. 172; Pennsylvania v. Gillespie, Addison, 267; Rex v. Sparkes, 2 Show. 447; Smith v. Langham, Skin. 60, 61; Rex v. Wright, 1 Bur. 543, 545; Waterford and Whitehall Turnpike v. People, 9 Barb. 161. Contra, The State v. Ashley, Dudley, Ga. 188. And see The State v. McEntyre, 3 Ired. 171.

Beckford v. Hood, 7 T. R. 620; Barden v. Crocker, 10 Pick. 383; Colburn v. Swett, 1 Met. 232; Jenner v. Joliffe, 9 Johns. 381; Broom Leg. Max. 2d ed. 64; Ferguson v. Kinnoull, 9 Cl. & F. 251. In a New York case, however, the court held, that no action would lie by the publisher of a newspaper against a postmaster, for refusing to receive proofs of the fact of his paper being, by reason of its large circulation, entitled to advertise, letters remaining in the post-office, under an act of congress and instructions from the postmaster-general; the ground of the opinion being, that the law was intended only for the public good, and so an action on it could not be maintained. Johnson, J., observed: "To give a right of action for such a cause, the plaintiff must show that the defendant owed the duty to him personally. Wherever an action is brought for a breach of duty imposed by statute, the party bringing it must show, that he had an interest in the performance of the duty, and that the duty was imposed for his benefit. But where the duty was created or imposed for the benefit of another, and the advantage to be derived to the party prosecuting, by its performance, is merely incidental and no part of the design of the statute, no such right is created as forms the subject of an action. In this I apprehend all the authorities will be found to agree. Martin v. Mayor, 1 Hill, N. Y. 545; Bank of Rome v. Mott, 17 Wend. 554; 19 Vin. Ab. 518, 520; Salk. 19; Ashby v. White, 6. Mod. 45, 51. In the latter case, Holt, chief justice, laid down the rule, that it must be shown that the party had a right vested in him, in order to maintain the action. And this, I apprehend, is the true rule." Strong v. Campbell, 11 Barb. 135, 138. It is not within the plan of this volume to discuss questions of mere civil right; but there is reason for the opinion, that the decision in this case might have been put on a firmer ground of principle. Suppose a statute was passed for the benefit clearly and exclusively of a particular person, no doubt can exist that another person could not claim a right under it. But where a statute is for the public, if any individual suffers under it a special injury not common to other members of the public, the doctrine already discussed, ante, § 327, seems to give him the right of action. Yet that injury may be too remote from its cause, may be too vague and uncertain, and so on, for the law's notice; in which circumstances his remedy fails through the operation of other principles.

would not lie, unless it were also injurious to the public.1 And on the same reason, when an act is by legislation made criminal, an unsuccessful attempt to do it, carried far enough for the law to notice, is an indictable misdemeanor, not under the statute, but at the common law.2

§ 349 a. The doctrine of the last section is attended with some difficulty in practice. In the first place, the question frequently embarrasses the tribunals, whether a particular prohibition is open to the construction of laying the foundation of a common law indictment, on account of its being accompanied, in the same statute, with a disconnected penalty, a point already discussed.3 Again; the difficulty sometimes. arises, whether the thing prohibited is of the peculiar nature which the common law makes indictable, because plainly if it is not, no common law indictment lies on the prohibition,-the remedy being either by action in the hand of the party aggrieved, or by such other proceeding as the nature and general principles of our jurisprudence point out. In the consideration of these statutes therefore, the mind must sometimes traverse the entire field of our jurisprudence. This fact beautifully illustrates the proposition, mentioned in the earlier part of this volume, that no one can understand well the doctrines of any particular title, without a knowledge of the entire law.

§ 350. The principles which govern these statutes are not peculiar to the statutory law, but they pervade the common law as well. For the doctrine is general, that, whenever the law, statutory or common, casts on one a duty of a public

Into this latter class, the case under consideration seems to fall; though perhaps it falls into the former also.

1 Rex v. Leginham, 1 Mod. 71. And see Crumpton v. Newman, 12 Ala. 199; Rex v. Watson, 2 T. R. 199.

2 Ante, § 84.

Ante, § 150-150 d.

Ante, § 22 b, 37.

That the duty must be a legal one, sec Reg. v. Vann, 8 Eng. L. & Eq.

nature, any neglect of the duty, or act done in violation of it, is indictable. Still we should remember, what is many times said in these pages,2 that there are duties, clear and well defined in morals, of magnitude so small as not to be taken into account in the law; and therefore such duties are not included in our rule. In this particular as in others, we must be guided by the landmarks which the adjudications of the courts have laid down for us.3 The English books, more frequently than the American, furnish illustrations of our rule in cases where magistrates, in sessions or otherwise, pass an order of a nature affecting the public; as to support poor persons, or a woman and her bastard child,5 to pay the costs of an appeal to the poor's rate, to admit an individual to membership in a friendly or benefit society, and other like matters within the jurisdiction of the magistrates, — the doctrine being, that disobedience to the order is indictable at the common law. Thus also disobedience to a lawful order of the privy council, concerning the performance of quarantine, is indictable. So an officer 10 may be thus punished who re

596, 2 Den. C. C. 325, 5 Cox C. C. 379; The State v. Bailey, 1 Fost. N. H. 185; Rex v. Everett, 8 B. & C. 114.

1 See People v. Norton, 7 Barb. 477.

See ante, § 320-324.

And see the observations of Dade, J., in Anderson v. Commonwealth, 5 Rand. 627, 631.

Rex v. Turner, 5 Mod. 329.

Rex v. Moorhouse, Cald. 554, 4 Doug. 388; Reg. v. Brisby, 3 New Sess. Cas. 591, Temp. & M. 109, 1 Den. C. C. 416, 13 Jur. 520.

Rex v. Boys, Say, 143.

Rex v. Gilkes, 3 Car. & P. 52; Rex v. Wade, 1 B. & Ad. 861.

* Rex v. Gash, 1 Stark. 441; Rex v. Mytton, Cald. 536, 1 Bott P. L. 428, note, 4 Doug. 333; Rex v. Robinson, 2 Bur. 799, 2 Keny. 513; Rex v. Boyall, 2 Bur. 832, 2 Keny. 549; Reg. v. Wood Ditton, 18 Law J. N. s. M. C. 218; Reg. v. Wiggot, Comb. 205; Reg. v. Crossley, 2 Per. & D. 319, 10 A. & E. 132, 3 Jur. 675.

• Rex v. Harris, 2 Leach, 4th ed. 549, 4 T. R. 202.

10 See The State v. Berkshire, 2 Cart. Ind. 207.

fuses to serve1 or return 2 a magistrate's warrant în a criminal case; or, having served it, disobeys the magistrate's mandate to take the arrested person to prison during an adjournment of the examination of his case; and it is no defence to have him otherwise in custody, and produce him at the` adjourned hearing.3

§ 351. Moreover, as we shall see more particularly in another place, if the law casts upon any individual or corporation the duty of repairing a public way, a neglect of this duty is consequently indictable at the common law. And so we might add numerous other illustrations of our doctrine; but we should thereby only anticipate, with small compensatory advantage, a large proportion of the following pages.

§ 351 a. The foregoing views may be condensed, thus: The law seeks to keep the people within certain boundaries of duty, without compelling them into all the right. And whenever one steps beyond the boundaries defined, it pursues him according to the method appropriate to the case. If the transgression is in a thing affecting the public directly, in distinction from a mere wrong to an individual, then the indictment is appropriate.

§ 352. For an act to be injurious to the public, within the foregoing principles, how many persons must suffer, or be in danger of suffering, from it? We cannot easily answer this question in brief and exact words; yet the idea is not difficult of comprehension. Not all the citizens of the country need be actually injured; but the wrong must be of a nature to produce injury to all; and, when carried fully out, must in fact injure all who are in the particular locality, or otherwise

1 Rex v. Mills, 2 Show. 181.

2 Reg. v. Wyat, 1 Salk. 380, 2 Ld. Raym. 1189.


Reg. v. Johnson, 11 Mod. 62. And see ante, § 250, 252.

4 Post, § 359.

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