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this narrow end wisely, if he forgets, that, as a man, and not as a brute, he must obtain this sustenance if at all.

§ 41. The foregoing are not the only methods of investigation; others will be learned as the emergencies of a success. ful practice require. The methods, too, will differ somewhat with different persons.

Each one must humor his own mental peculiarities; and still more must he, when he appears in court, those of his adversary, and especially of the judge. He must know, therefore, besides the law, both himself and mankind. And, as in mechanical employments skill in the use of tools often supplies the place of strength, so in legal. He who in our profession learns to direct his faculties best, will often, with moderate ability, excel his neighbor more richly endowed by nature.

§ 42. With one general observation, we shall pass from this part of our subject. The English and American decisions, especially the latter, are accumulating so rapidly, that it will soon become impossible for professional men, doing any business, to look through all upon each question arising. With this increase therefore the profession must adopt, and the courts encourage, a deeper study of principles. Let no one entering the legal ranks hope to succeed by other means. Not only does the emergency of practice dictate this course; but the law itself, for its own preservation. The body of English lawyers and judges may pursue the track of precedents, destitute of other light; while the English jurisprudence is kept from failing, by occasionally one appearing, who, with better views, looks to the region of principles; but with us this is impossible. The quantity of matter engaging our attention is greater; the larger part is quasi authority only, and, coming from opposite and diverse quarters, is incongruous and inharmonious ; so that nothing can preserve even the present condition of our law, but for every individual who aids in its exposition or administration to become master of its principles. Yet, if this is done, we have a glorious juridical future before us. From the mass of incongruous mate

rial, a structure of jurisprudence may be reared, the like of which the world never saw; and, in the nature of things, never could see. And because of these facts; because of the greater quantity of material, and its calling peculiarly for the exercise of the bighest intellectual powers to master it, — an American lawyer is even now much superior to an English one, of the same natural capacity. We have only this very considerable disadvantage, that, while the English system secures the strongest, clearest, best cultured intellects on the bench, ours more frequently, though happily not always, leaves them at the bar; and fills the places of greater influence upon the law by. those less competent. The judicial office should be so rewarded pecuniarily, that men of the first qualifications can afford to accept it; so honorable as to be worthy the aspirations of the most gifted; bestowed, not in compensation for caucus services or popular harangues in party politics, - but the triumphal crown worn as the meed of conquest in the field of legal science. For the jurisprudence of a country is so woven into the morals and happiness of the people, and the commercial and social interests are so affected by it, that we cannot overestimate its importance. If therefore there were the smallest hope that the voice of an author from the chambers of the law could be heard over the roar of party strife, this chapter, instead of closing here, should break forth into expostulation.

1 “I cannot refrain from asking your lordships to consider how the subject has been viewed by our brethren of the United States of America. They carried the common law of England along with them, and jurisprudence is the department of human knowledge to which, as pointed out by Burke, they have chiefly devoted themselves, and in which they have chiefly excelled.” Opinion of Lord Campbell in Reg. v. Millis, 10 Cl. & F. 534, 777.




SECT. 42 a–45 c. The Ordinary Criminal Law.

46, 46 a. The Ecclesiastical Criminal Law.
47-49 a. Martial and Military Law.

50. Authorities and Field of Investigation.


$ 42 a. Thus far our chapters are intended to introduce the reader alike to the civil and the criminal departments of the law. The fact of its division into these two departments has already been mentioned.1


§ 43. Criminal law treats of those wrongs which the gove ernment notices as injurious to the public, and punishes in what is called a criminal proceeding, in its own name. Blackstone defines "a crime or misdemeanor” to be, an act committed or omitted in violation of a public law, either forbidding or commanding it."2 But his definition fails in precision; neither is ours as apt as sometimes we are able to give. In the present state of the authorities we may hesitate to say, that in no case is any thing deemed a crime unless pursuable in the name of the State, or, in England, of the sovereign; but this is the general, if not universal, rule. Thus a sale of intoxicating liquor without license is a criminal offence, when a statute prohibits the sale under a penalty, and provides for its recovery by indictment; but otherwise

1 Ante, $ 1.

: 4 Bl. Com. 5. And see further, as to what is a criminal offence, Rector r. The State, 1 Eng. 187; Durr v. Howard, 1 Eng. 461; People v. Ontario, 4 Denio, 260.

when the proceeding is by action of debt, - a suit on a penal

statute being deemed a civil cause. Judges frequently, however, speak of things as belonging to the general department of criminal jurisprudence, though the form of procedure is civil;a but we should hardly treat of such things under the title of criminal law. On the other hand, a mandamus is said to be a criminal process, to enforce civil rights ; yet we do not ordinarily regard it as belonging to the criminal law. The words “criminal cases,” in the constitution of Georgia, are held not to apply to violations of the local by-laws and police regulations of town and city corporations.

43 a. We have already seen, that the criminal and civil departments of the law somewhat blend in each other; and



Indianapolis v. Fairchild, Cart. Ind. 315, Smith, Ind. 122; Keith v. Tuttle, 28 Maine, 326, 335; People v. Hoffman, 3 Mich. 248. See, however, Reed v. Cist, 7 S. & R. 183 ; Commonwealth v. Evans, 13 S. & R. 426. And see for further light on this general subject, Graham v. The State, 1 Pike, 79; Matter of Attorney-General, Mart. & Yerg. 285; Jacob v. United States, 1 Brock. 520; Mahoney v. Crowley, 36 Maine, 486; Brown v. Mayor ‘of Mobile, 23 Ala. 722; Ketland v. The Cassius, 2 Dall. 365; The State v. Mace, 5 Md. 337, 349; Kimpton v. London & Northwestern Railway, 25 Eng. L. & Eq. 557;. Matter of Eggington, 2 Ellis & B. 717, 23 Law J., N. 8., M. C. 41, 18 Jur. 224, 24 Eng. L. & Eq. 146. And see Belcher v. Johnson, 1 Met. 148, where it is held, that the process to obtain judgment for a militia fine is civil, and not criminal, because the form of proceeding is civil. See also Buckwater v. United States, 11 S. & R. 193; Ellmore v. Hoffman, 2 Ashm. 159; Rogers v. Alexander, 2 Greene, Iowa, 443; Dickinson v. Potter, 4 Day, 340; Houghton v. Havens, 6 Conn. 305; People v. Ontario, 4 Denio, 260; Eason v. The State, 6 Eng. 481; Attorney-General v. Radloff, 10 Exch. 84, 26 Eng. L. & Eq. 413; Dyer v. Hunnewell, 12 Mass. 271 ; Winslow r. Anderson, 4 Mass. 376. In The State v. Pate, Busbee, 244, the doctrine was laid down, that the test is to inquire whether the proceeding is by indictment or action; if the former, the cause is criminal; if the latter, it is civil. The action — Webster v. People, 14 Il. 365 — may be in the name of the State ; but this does not make the cause a criminal one.

i See Bishop Mar. & Div. $ 299. : The State v. Bruce, 1 Const. 165, 174.

• Williams v. Augusta, 4 Ga. 509. See, however, Slaughter v. People, 2 Doug. Mich. 334, note. • Ante, $ 1.

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that so the line dividing them is neither always distinct, nor always drawn by the hand of an exact science. And where there is no doubt to which department a particular matter belongs, it may still be so like another matter belonging to the other department as to be governed partly by its rules. Yet it will still follow the rules of its own department in other respects. Some illustrations of these things will be seen in the following pages.

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$43b. In our expositions of the criminal law, we shall first look at those principles which pervade alike all its branches. Then we shall consider the specific offences. The first will furnish the chief matter for the present volume; the second, for the next volume. The subject of criminal procedure, including what, in technical phrase, are called pleading, practice, and evidence, will remain for a separate work.

$44. The criminal law, like the civil, is both statutory and common. Our expositions, however, are only of the common law. Yet this includes the principles which govern the interpretation of the statutes. The consequence of which plan is, that those who use these volumes, having before them the statutes of their own State, will refer to the statutes in the first place, then to our volumes, and by this double reference have a full exposition of their own local criminal law. If these pages were encumbered with the statutes, still practitioners would not rely upon them as here given; because the safer reference is always to the authoritative statutebooks of their own State. And to load the page with masses of useless matter is to place the useful beyond convenient reference. The present plan, therefore, gives to the lawyers of each particular State of the Union a more convenient and better book for domestic use, than the same author could have produced writing exclusively on the local law.

§ 45. It is plain, both on principle and on, authority, that the common law must extend as well to criminal matters as

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