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, ABATABLE NUISANCES AND FORFEITURES WITHOUT CRIMINAL ??..11

CONVICTION.

$ 693. The subject of this chapter is one of a nature peculiar to itself. Its affinity is not alone with the criminal law, neither is it peculiarly a matter of civil jurisprudence. In the popular mind, it is more allied to the criminal. In fact, it extends its roots into both departments, while its visible branches are all its own. Nearly every subject of property is some material thing. For its existence as matter, and for its material relations toward us, it depends upon the law of nature. But its relations toward us as property, and its existence as such, depend solely on the law of the land. If a man owns a bag of coin, and drops it in mid ocean where gravitation carries it beyond his reach, he can enjoy it no more, though it is still his property; while, if he maintains his material grasp, yet so uses it that forfeiture takes from him, not the material substance, but the legal right to it, he no longer enjoys the property, which has passed from him, though he has in his hand the gold. Law is the creator of property; and the province of a creator is to prescribe to the thing created the conditions of its being. When the conditions are violated, the property falls ; vesting in another, or in the State, or being destroyed. The violation may be either

1 In a late Massachusetts case, not of forfeiture, but involving the same principle, Shaw, C. J., observed : “ All property in this Commonwealth, as well that in the interior as that bordering on tide waters, is derived directly or indirectly from the government, and held subject to those general regulations, which are necessary to the common good and general welfare. Rights a criminal or a civil wrong; or it may be a thing of which the tribunals take no cognizance, further than simply to recognize the change of proprietorship in the article forfeited, when the question comes before them judicially.

$ 693 a. This doctrine of forfeiture, thus explained, differs from some other things in the law, known by the same name. For instance, the forfeitures differ from fines of specific articles of property, transferred therefore to the government, as already mentioned. They differ, moreover, from those forfeitures which in the English law attend corruption of blood, on attainder for treason and felony.

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$ 694. The forfeitures we are considering may be illustrated as follows. If a man so uses his property that it becomes a nuisance, the nuisance is liable to be abated, to the destruction, if necessary, of the property;2 if, in some of the States, he declines or omits to pay taxes on his lands, they are forfeited, under statutes, to the State ;: one who, in some States, bets money on an election, forfeits the money; 4 and, during our revolutionary struggle, confiscation acts were in several of the States passed, under which the lands of persons absenting themselves lapsed in some cir

of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment, as shall prevent them from being injurious ; and to such reasonable restraints and regulations established by law, as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient.” Commonwealth v. Alger, 7 Cush. 53, 85. And see also observations on pages 96, 102, 103, of the

report. Ante, $ 629; Vol. II. $ 1008. • Lancaster Turnpike v. Rogers, 2 Barr, 114; Pennsylvania v. Wheeling & Belmont Bridge, 13 How. U. S. 518; Meeker ». Van Rensselaer, 15 Wend. 397; Mills v. Hall, 9 Wend. 315, Penruddock's case, 5 Co. 100b, Jenk. Cent. 260; Baten's case, 9 Co. 53b.

3 Blackwell on Tax Titles, 536 et seq.; Hodgdon v. Wright, 36 Maine, 326; Clarke r. Strickland, 2 Curt. C. C. 439.

• Doyle v. Baltimore County, 12 Gill & J. 484 ; Hickman v. Littlepage, 2 Dana, 344.

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cumstances to the State,1 If a seaman deserts the ship, he forfeits his wages. Forfeitures are likewise appointed to enforce revenue and other similar laws; and there are forfeitures of the enemy's property in times of war, of property employed by our own people in illicit trade, in violations of embargo laws, and the like. Many other illustrations might be added.

$ 695. The forfeiture may come instantly on the violation

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Gilbert v. Bell, 15 Mass. 44 ; Borland v. Dean, 4 Mason, 174 ; Cooper v. Telfair, 4 Dall. 14; Atherton v. Johnson, 2 N. H. 31 ; Thompson v. Carr, 5 N. H. 510; Dunham v. Drake, Coxe, 315; Martin v. Commonwealth, 1 Mass. 347; Conyngham v. Commonwealth, 3 Yeates, 471; Dunham v. Drake, Coxe, 315; Denn v. Clark, Coxe, 340 ; Denn v. Sparks, Coxe, 56 ; Denn v. Banta, Coxe, 266; Cutts v. Commonwealth, 2 Mass. 284; Hoylton v. Brown, 1 Wash. C. C. 298, 307; Beach v. Woodhull, Pet. C. C. 2; Jackson 1. Catlin, 2 Johns. 248; Catlin v. Jackson, 8 Johns. 520; Jackson v. Stokes, 3 Johns. 151 ; Sleight v. Kane, 2 Johns. Cas. 236; Jackson v. Munson, 1 Johns. 277; Jackson v. Sands, 2 Johns. Cas. 267; Palmer v. Horton, 1 Johns. Cas. 27; Jackson v. Prevost, 2 Caines, 164; McGregor v. Comstock, 16 Barb. 427; Bare v. Rhine, 2 Yeates, 286; Dietrick v. Mateer, 10 S. & R. 151; Maclay v. Work, 5 Binn. 154,

* The Rovena, Ware, 309; Spencer v. Eustis, 21 Maine, 519; Sherwood "0. McIntosh, Ware, 109.

3 McLane v. United States, 6 Pet. 404; Douglass v. Roan, 4 Call, 353 ; Bentley v. Roan, 4 Call, 153; Brewster v. Gelston, 11 Johns. 390; Wood v. United States, 16 Pet. 342; The Ploughboy, I Gallis. 41; Phile v. The Anna, 1 Dall. 197; United States v. Package of Lace, Gilpin, 338; Bottomley v. United States, 1 Story, 135.

* Atherton v. Johnson, 2 N. H. 31 ; Church v. Hubbart, 2 Cranch, 187; The Emulous, 1 Gallis. 563; The Joseph, 1 Gallis. 545 ; The Alexander, 1 Gallis. 532; The Rapid, 1 Gallis. 295; The Eliza, 2 Gallis. 4; The Rugen, 1 Wheat. 62; The Rapid, 8 Cranch, 155; The Lord Wellington, 2 Gallis. 103 ; The Sally, 8 Cranch, 382; The St. Lawrence, 8 Cranch, 434; Darby v. The Brig Esstern, 2 Dall. 34; United States v. Brig James Wells, 3 Day, 296 ; The William Gray, Paine, 16; Amory v. McGregor, 15 Johns. 24; United States v. La Jeune Eugenie, 2 Mason, 409; Maisonnaire v. Keating, 2 Gallis. 325; Harmony v. Mitchell, 1 Blatchf. C. C. 549, 13 How. U. S. 115; United States v. Little Charles, 1 Brock. 347; The Caledonian, 4 Wheat. 100; The Langdon Cheves, 4 Wheat. 103 ; Jecker v. Montgomery, -18 How. U. S. 110; United States v. One thousand nine hundred and sixty Bags of Coffee, 8 Cranch, 398.

taking place which produces it, or it may come, only when pronounced by judicial sentence.? In the latter instance, however, the sentence carries it back, by legal implication,, to the time of the violation; unless intervening rights of per-, sons unconnected with the violation prevent. Such intervening rights, if they exist, do not preclude this result in all circumstances, only in some circumstances.3

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$ 696. In these cases of forfeiture, the property is supposed so to act, through its possessor, as, losing its resting place on the law, to fall. Now a mere intent in a man's mind-çannot

a be deemed an act of his property. And so it appears to be a principle of the common law, that neither an intent,4 norordinarily an attempt, will work a forfeiture. Consequently a condition in a devise, making the devise void if the devisee, attempt to alien the estate, is a nullity; 6 and " if one see his neighbor erecting a thing which will be a nuisance, he cannot abate it till it become an actual nuisance." 7 This principle, however, should be guardedly received, as modified by the doctrines we are about to state.

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'1 9.697, We have already seen, that forfeiture is sometimes

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1 McLane v. United States, 6 Pet. 404; Amory v. McGregor, 15 Johns. 24; United States v. One thousand nine hundred and sixty Bags of Coffee, 8 Cranch, 398 ; United States v. Brigantine Mars, 8 Cranch, 417; Reg. v. Whitehead, 9 Car. & P. 429; Ash v. Ashton, 3 Watts & S. 510; Doyle v. Baltimore County, 12 Gill & J. 484.

* Fire Departmentv. Kip; 10 Wend. 266; The Thomas Gibbons, 8 Cranch, 421 ; The Mars, 1 Gallis. 192; The Caledonian, 4 Wheat. 100; Rex v. Van Muyen, Russ. & Ry. 118 ; Parker v. United States, 2 Wash. C. C. 361 ; Hobson v. Perry, 1 Hill, S. C. 277; United States v. Grundy, 3 Cranch, 337.·, )

Buckley v. Orms, Brayt. 124; The Mars, 1 Gallis. 192; Clark v. Pro tection Insurance Company, 1 Story, 109; The Ploughboy, 1 Gallis. 41. 4 Case of Le Tigre, 3 Wash. C. C. 567, 572. :) 6 McQueen Hus. & Wife, 271.

17 * Pierce v. Win, 1 Vent. 321; Foy v. Hynde, Cro. Jac. 697.! And see Mildmay's case, 6 Co. 40, 42 b; Stephens v. James, 4 Sim. 499.

? Rex v. Wharton, 12 Mod. 510, by Holt, C. J. 8 Ante, $ 629.

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inflicted as a punishment for crime. And we have mentioned such infliction as differing in nature from the forfeiture discussed in this chapter. It may however be observed, that,

" when forfeiture comes as punishment, it may fall as well upon a criminal attempt as upon a substantive offence. But aside from this doctrine, there are circumstances in which the forfeiture treated of in this chapter, not flowing indeed from the intent of the owner, but from the act of his property, will be arrested if the owner's intent did not concur with the property's act. Thus the violation of revenue laws - which laws are not of the criminal department, being merely for the collection of duties 2 - is excused, and the forfeiture is avoided, by overwhelming necessity, and by accident and mistake;4 and the same doctrine is applied to the breach of embargo acts, and to many other things. But in these cases it is of no avail to the owner of the property, that he is free from blame, unless those to whom he had voluntarily intrusted it are so likewise.?

$698. The object of these forfeitures, or more accurately the law's motive for inflicting them, may be akin to the peculiar spirit of either the criminal law or the civil. But, whether the one or the other, the forfeiture proceeds in a way of its own, drawing its sustenance from a principle of its own, peculiar neither to the one nor to the other of these two great

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1 Ante, $ 693 l.

Ante, $ 116. & Stratton v. Hague, 4 Call, 564; The Gertrude, 3 Story, 68; ante, $ 278.

* United States v. Nine Packages of Linen, Paine, 129 ; Fairclough.v.. Gatewood, 4 Call, 158; United States v. Fourteen Packages, Gilpin, 235, 244.

Brig James Wells v. United States, 7 Cranch, 22; The New York, 3 Wheat. 59; The William Gray, Paine, 16; United States v. Brig James Wells, 3 Day, 296; United States v. Guillem, 11 How. U. S. 47.

6 The Marianna Flora, 11 Wheat. 1; Peisch v. Ware, 4 Cranch, 347; Martin v. Commonwealth, 1 Mass. 347. And see Sturges v. Maitland, Anthon, 153; The Palmyra, 12 Wheat 1.. ? Phile v. The Anna, 1 Dall. 197 ; The Bello Corrunes, 6. Wheat. 152:

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