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departments of our law. It is neither a punishment for crime, even though a crime is committed when it is incurred; nor a damage awarded for a civil injury, even though a civil liability follows the act which produces it. And when the motive for its infliction is the same which pervades our criminal law, — if, in any instance, the required circumstances occur, it falls, without regard to whether the owner commits, at the same time, a crime or not. Thus, when the master of a vessel undertakes piratical aggressions upon the high seas, contrary to the act of congress, the owner of the vessel forfeits the vessel, though himself innocent in the matter. So a neutral's share in a belligerent ship is subject to condemnation. Likewise, if a vessel violates an embargo act,

And see The Palmyra, 12 Wheat. 1, and particularly the observations of Story, J., p. 14, 15.


* United States v. Brig Malek Adhel, 2 How. U. S. 210. In this case, Story,' J., who delivered the opinion of the supreme court of the United States, observed: "It was fully admitted in the court below, that the owners of the brig and cargo never contemplated or authorized the acts complained of; that the brig was bound on an innocent commercial voyage from New York to Guayamas, in California; and that the equipments on board were the usual equipments for such a voyage..... The act [of congress] makes no exception whatsoever, whether the aggression be with or without the cooperation of the owners. The vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches, without any reference whatsoever to the character or conduct of the owner. . . . . It is not an uncommon course in the admiralty, acting under the law of nations, to treat the vessel in which or by which, or by the master or crew thereof, a wrong or offence has been done as the offender, without any regard whatsoever to the personal misconduct or responsibility of the owner thereof. And this is done from the necessity of the case, as the only adequate means of suppressing the offence or wrong, or insuring an indemnity to the injured party. The doctrine also is familiarly applied to cases of smuggling and other misconduct under our revenue laws; and has been applied to other kindred cases, such as cases arising on embargo and nonintercourse acts. In short, the acts of the master and crew, in cases of this sort, bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs." 3 The Primus, 29 Eng. L. & Eq. 589. 42

without the owner's concurrence, she is forfeited, the same as if he concurred; for she excavates from beneath her the place of her rest on the law, the same when she acts through her master and crew, as through her owner. In all these cases, of course, the forfeiture would be equally incurred, if the owner suffering it were personally guilty.

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§ 699. Another illustration of the last-mentioned principle may be drawn from the common law doctrine of deodands,→ a branch of the English system not received in this country generally, if at all. A deodand, in the English law, is any thing as a cart, a horse, a wheel, or other like objectwhich occasions the death of a human being; and all the owner's property in "the unhappy instrument," as Hawkins terms it, is "forfeited to the king, in order to be disposed of in pious uses by the king's almoner."3 Now, the law leaves it quite immaterial, whether the death were accidental or intended; or whether the person whose property is forfeited participated in the act, or not.*

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$700. One further illustration is in the law of abatable nuisances. Whenever a subject of property comes, through the fault of its owner or not, into a situation to be a nuisance, it is not strictly forfeited; but the nuisance may be abated, to the destruction, if necessary, of the property.5 If the nuisance is a private one, persons whose interests are prejudiced by it may, without resorting to legal proceedings, go upon the ground and abate it; if a public, it may be abated


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1 United States v. Little Charles, 1 Brock. 347, 354.

? See ante, § 642 and note, 643.

3 1 Hawk. P. C. Curw. Ed. p. 74, § 3, 6.

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Ib.; 3 Inst. 57; Foster, 287, 288; 1 Hale P. C. 419 et seq. And see Hampstead's case, 1. Salk. 220; Rex v. Brown, T. Raym. 208; Chandois's case, Cro. Jac. 483; Reg. v. Wheeler, 6 Mod. 187; Anonymous, T. Raym..


Ante, § 694..

• Gates v. Blincoe, 2 Dana, 158; Moffett v. Brewer, 1 Greene, Iowa, 348;

Yet, as

by any individual of the public, that is, by anybody. we have seen, it must be in actual existence, not merely prospective. So the person abating must do no more damage than he is obliged to do, in accomplishing the object;3 as, for example, if a house is used for purposes publicly injurious, he may pull it down, when the injury cannot otherwise be arrested; but, when it can, he must not proceed so far. In other words, he may simply abate the nuisance, no more.

§ 701. In the case of a private nuisance, as mentioned in the last section, there is no crime committed: in the case of a public one, there is a crime or not, according as the intent of the producer of it concurs criminally therein or not. Thus an indictment ordinarily lies against an individual obstructing a public way; but, if the owner of a vessel by misfortune or accident sinks the vessel in a navigable river, he is not indictable; though the nuisance may, like any other obstruction of a public way, be abated.8 Yet even where a crime is committed, the abatement of the nuisance is not a punishment for the crime; since punishment can follow only the conviction of the offender. On such conviction, the court

Lancaster Turnpike v. Rogers, 2 Barr, 114; Great Falls Co. v. Worster, 51 N. H. 412; Rex v. Rosewell, 2 Salk. 459,

1 Renwick v. Morris, 7 Hill, N. Y. 575; Arundel v. McCulloch, 10 Mass. 70; Wetmore v. Tracy, 14 Wend. 250; Hall's case, 1 Mod. 76; Low v. Knowlton, 26 Maine, 128.

Ante, § 696.

Arundel v. McCulloch, 10 Mass. 70; The State v. Moffett, 1 Greene, Iowa, 247; Moffett v. Brewer, 1 Greene, Iowa, 348; James v. Hayward, W. Jones, 221, 223.


• Meeker v. Van Rensselaer, 15 Wend. 397.

Welch v. Stowell, 2 Doug. Mich. 332; Barclay v. Commonwealth, 1 Casey, 503.

• The State v. Knotts, 2 Speers, 692; Freeman v. The State, 6 Port. 372; Kelly v. Commonwealth, 11 S. & R. 345.


7 Rex v. Watts, 2 Esp. 675; Cummins v. Spruance, 4 Harring. Del. 315. • Dimmett v. Eskridge, 6 Munf. 308; Hopkins v. Crombie, 4 N. H. 520; Rung v. Shoneberger, 2 Watts, 23.

usually perhaps, not always,2 orders the abatement of the nuisance; yet this is not properly a part of the punishment. A pardon of the offence, whereby all punishment is taken away, does not free the nuisance from being abated.

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§,701 a. Many other illustrations of the doctrines thus far unfolded in this chapter might be given, but these will suf fice..

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702. The creation of forfeitures unknown to the common law is a legitimate exercise of the legislative power; but the power, like any other, may be restrained by the constitution of the State. The State constitutions differ from one another; the adjudications on the subject are not numerous; and so we should traverse too wide a field, and be compensated by too little fruit gathered, if we were to carry our investigations far in this direction. It may however be said generally, that our constitutions have few if any direct restrictions in the matter; those which exist resulting from provisions introduced with a primary regard to other objects, if indeed any exist. Thus there are, in most of the constitutions, guaran

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1 Anonymous, Comb. 10.

Rex v. Incledon, 13 East, 164; Rex v. West Riding of Yorkshire, 7 T. R. 467; The State v. Haines, 30 Maine, 65; Rex v. Pappineau, 2 Stra. 686; The State v. Noyes, 10 Fost. N. H. 279.

*Rex v. Wilcox, 2 Salk. 458. And see Case of Pardons, 12 Co. 29.

The reader who is curious to follow this subject further into detail, may profitably consult the cases below; namely, - Barnicoat v. Six Quarter Casks of Gunpowder, Thacher Crim. Cas. 596; Trueman v. Casks of Gunpowder, Thacher Crim. Cas. 14; American Print Works v. Lawrence, 3 Zab. 9; Hale v. Lawrence, 3 Zab. 590; Smith v. Maryland, 18 How. U. S. 71; Griffin v. Potter, 14 Wend. 209; Stump v. Findlay, 2 Rawle, 168; Harrisburg Bank v. Commonwealth, 2 Casey, 451; French v. Rollins, 21 Maine,

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: The reader may consult Hickman v. Littlepage, 2 Dana, 344; Violett v. Violett, 2 Dana, 323; Shepherd v. McIntire, 5 Dana, 574; Cooper v. Telfair, 4 Dall. 14; Atherton v. Johnson, 2 N. H. 31; The Apollon, 9 Wheat. 362; Commonwealth v. Dana, 2 Met. 329; The State v. Allen, 2 McCord, 55; Wooldridge v. Lucas, 7 B. Monr. 49; The Palmyra, 12 Wheat. 1; Boles

ties for the protection of persons charged with crime; but the reader has noticed, that the forfeitures discussed in this chapter are not, even where a crime is committed, a part of the punishment. Yet we have seen, that forfeiture as punishment for crime is known in our law, being a different thing from the forfeiture we have been discussing. And there may be circumstances in which doubts will arise, whether the forfeiture mentioned in a statute is of the one kind or the other. Where the legislature of Massachusetts directed, in a statute, the forfeiture of intoxicating liquors kept with the intent to sell them contrary to its provision, the supreme judicial court of the Commonwealth pronounced the provision unconstitutional; because the proceedings it established to enforce the forfeiture were obnoxious to the guarantees for the protection of persons accused of crime.2


§ 703. Concerning this Massachusetts case, a single suggestion may be useful. The forfeiture of property, for which the statute provided, was by the statute itself made to depend upon an intent in the mind of its owner; that is, it was to be forfeited when kept for sale contrary to law. And, disguise the matter as we may, under whatever form of words, if the intent which the owner of property carries in his bosom is the gist of the thing on which the forfeiture turns, then the question is one of the criminal law, and the forfeiture is a penalty imposed for crime, instead of being the kind of forfeiture discussed in the foregoing sections. If the Massachusetts statute had provided for the destruction or other forfeiture of the liquor on its being found in a particular set of circumstances surrounding, or in a particular locality, or in

v. Lynde, 1 Root, 195; Whitfield v. Longest, 6 Ired. 268; Miller v. The State, 3 Ohio State, 475.

1 Ante, § 693 a, 697.

Fisher v. McGirr, 1 Gray, 1, 22, 26, 27, 36, 37. On the general subject of statutes similar to that of Massachusetts, see The State v. Gurney, 33 Maine, 527; Barnett v. The State, 36 Maine, 198; The State v. Gurney, 37 Maine, 156. See Vol. II. § 1008.

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