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that examination. And though, also, practitioners are apt to look with disfavor on discussions of the law so elementary as this, yet, in fact, no discussion of the criminal law is either so much needed, or practically so useful to them, as the one lying within the scope of the present volume. If the author is able to make even a few leading minds of the country see this truth, he will do more, in this respect, than he even dares to hope.




SECT. 403-407. Introductory Views.

408-417. Personal Preservation and Comfort.
418-435 a. Acquiring and Retaining Property.

436. The Same of Reputation.
437, 438. Combinations to commit Private Injuries.

439. Protection to the Lower Animals.

$ 403. In all ages and countries, the path of human improvement has been macadamized with bones, and wet with blood. The strong trample down and tread out the feeble, and by ending them diminish the average weakness of the race; while the conflict, between those who survive, strengthens their bodies and minds, and the acquired vigor passes down to succeeding generations. When one party or tribe or nation has so prevailed as to preclude further contest, a decay commences, progressing until they who were strong become weak, and are themselves overthrown. Christianity indeed has opened another and better way, bloodless and bright; but “ few there be that find it.”i This view does not justify men in preying on one another; yet it shows how, in fact, good comes from the antagonisms of evil. Our Saviour expressed the idea, in words brief and weighty, thus: “It must needs be that offences come; but woe unto that man by whom the offence cometh.2


§ 401. This doctrine, that permitted evil brings forth good, prevails likewise in the law. It lies at the foundation of the doctrines of our present chapter. While the individuals who compose the State are contending with one another, they are adding to the general sum of power, and the community is not injured in a way justifying a criminal prosecution. The law merely allows à civil suit for the redress of the private wrong inflicted; not in vindication of public justice, but as an instrument in the hands of the party to obtain what is his private due.

1 Matt. vii. 14.

9 Matt. xviii. 7.

$ 405. 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 a criminal prosecution for the wrong done. When two or more persons, engaged in the contest of life, stand on a fair ground toward one another, they interfere not with any public interest, as already intimated, however far they proceed; because, though one may press unduly hard on the other, yet only good comes to the public at large from this. But when they cease to sustain this fair relation toward one another, the contest ceases to be a strengthening one, and becomes rather one of destruction. If therefore two or more persons undertake any of the controversies of life, and one of them assumes toward another or the rest unfair ground, the community interferes and punishes the wrong by a criminal prosecution. What is fair ground is often a question of doubt and difficulty. In the present chapter,' we shall simply inquire what view the common law has taken of this matter. The old common law, originating in an age of strong minds, iron sinews, and semi-barbarous manners, demanded less to fairness than is required by the superior culture and finer moral sentiment of modern times. And the demand continues to increase as we progress in civ. ilization. The consequence is, that the common law itself expands by slow and insensible gradations; while a more rapid expansion is carried on by legislation, which both adds to the number of crimes, and enlarges the boundaries and augments the punishments of the old ones. Statutory enactments, therefore, more enlarge the department treated of in this chapter than the last; and, although the department does not embrace so many distinct classes of offences, they give occasion for more criminal prosecutions, and encumber the reports with more decisions.1

$ 406. The leading objects of private regard are, I. Personal Preservation and Comfort; II. Acquiring and Retaining Property; III. The Same of Reputation. Let us see how these several interests are protected by the crimiual common law. In looking at them with reference to the violations of the law, we shall assume, that only one person does the wrongful thing. Then we shall consider, IV. Combinations to commit Private Injuries. Because the mere act of combining sometimes places the confederates on unfair ground toward those whom they would injure, even in circumstances in which a single one, actually doing what they jointly propose, would stand on equality. Finally, we shall look at the question of, V. Protection to the Lower Animals.

$ 407. Before contemplating the doctrines of these subtitles severally, let us call to mind a preliminary distinction, important in reference to the whole discussion. It relates to the two kinds of force known among men; namely, mental force, and physical force. Between them great difference exists. The physical force is needful for many purposes of life, but not needful to be employed by private men upon each other; and therefore its employment thus is always wrong in itself, and wrong as a violation of the common duties we owe to the community. The employment of mental force, on the other hand, though a wrong oftentimes to the individual, is deemed to be of public good, so long as the wrongdoer refrains from assuming toward the injured person the unfair ground of which we are speaking. In other words, the use of physical force, in this way, is of itself an assumption of unfair ground; but the use of mental force is not such of itself, yet may become such by the manner of

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1 And see ante, $ 324 b et seq. i post, $ 409 a-409 C.

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its use.

These points will more plainly appear, with their reasons also, in the following discussion. And the distinction will be found to explain most of the difficulties concerning what is indictable, and what is not, as done to the injury of the individual.

I. Personal Preservation and Comfort.

$408. The heaviest offence known to the law, as an offence against the individual, is the unjustifiable taking away of the life, called felonious homicide.

The common law divides it into murder and manslaughter; and there are in many of the States other divisions also, introduced by statutes. We have seen, that it is likewise a crime against the public. But we shall pass over this offence, with the various forms of attempts to take life, lying under its shadow, until we come to the full examination of specific crimes in the next volume. The same may be said of mayhem, and the various statutory maims.

$ 409. There are two offences against the person and personal security, usually found together, and practically regarded as one; namely, assault and battery. A battery is any unlawful beating, or other wrongful physical violence or constraint,4 inflicted on a human being without his consent:6 an assault is less than a battery, where the violence is cut short before actually falling ; being committed whenever a well-founded apprehension of immediate peril, from a force already partially or fully put in motion, is created. An

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? Ante, $ 301. 2 Ante, $ 387.

Ante, $ 388. * Long v. Rogers, 17 Ala. 540 ; Reg. v. Cotesworth, 6 Mod. 172; Ed. sall v. Russell, 6 Jur. 996 ; Pike v. Hanson, 9 N. H. 491.

Ante, $ 342, 343. • Stephen v. Myers, 4 Car. & P. 349; The State v. Davis, 1 Ired. 125;


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