this kind of protection. (a) 4. Wilfully and maliciously setting fire to any woods, prairies, or other grounds belonging to another; or causing the same to be done; or intentionally suffering fire to pass from one's own ground to another's-fine within fifty dollars, and liability in single damages. Such are the provisions against the malicious destruction of life or property by burning. But why might there not be one general provision, punishing the malicious burning of every kind of property whatever, instead of these numerous and yet very imperfect specifications? I can see no objection. The highest punishment might be for the burning of buildings where life is endangered; and the rest might depend upon the amount of property endangered or destroyed. As the provisions stand, there is great want of discrimination in this respect.

Fraudulent Conveyance and Swindling. To guard the business. transactions of men against fraud, deception, and imposition, in addition to the civil liability which they involve, the following penalties are provided: 1. Knowingly selling or conveying any tract of land, without having a title thereto, either in law or equity, by descent, devise, or other written evidence, with intent to defraud the purchaser-penitentiary from one to seven years. This has been mentioned before. 2. Committing a fraud upon the insolvent act, by concealing property, or fraudulently disposing of it— fine within five hundred dollars, or imprisonment within ten days or both. 3. Obtaining from another, by any false pretence, any money or other value, with intent to cheat and defraud him; or fraudulently making and transferring any instrument of writing, with intent to defraud creditors - fine within five hundred dollars, or imprisonment within ten days, or both. (b) These are the only provisions we have against what is commonly called swindling. It will be at once perceived that they are very far from including all the cases in which knaves may cheat honest men.

Malicious Destruction of Property. (c) We have already considered one way of maliciously destroying property; namely, by burning. The other provisions on the subject are as follows: 1. Knowingly or maliciously destroying any private or public bridge, or any landmark or boundary properly established-fine within five hundred dollars, or imprisonment within thirty days, or both. 2. Knowingly and maliciously destroying or defacing any monument or tombstone-fine within two hundred dollars, or imprisonment within thirty days, or both. 3. Knowingly and maliciously

(a) See act of April 16, 1857.

(b) State v. Green, 7 Wis. 676; Commonwealth v. Drew, 19 Pick. 179. The false pretence must relate to a past event or an existing fact, and not be merely an assurance as to the future. Dillingham v. The State, 5 Ohio State, 280. Counterfeiting trademarks. Act of March 29, 1859. Executing and delivering false and fictitious bills of lading. Act of March 22, 1860. One who obtains money upon a mortgage of personalty which he falsely represents as his, is guilty of obtaining money under false pretences. Commonwealth v. Lincoln, 11 Allen, 233. So is one who obtains money by falsely stating that in a former transaction proper change was not given to him. Commonwealth v. Norton, 11 Allen, 266.

(c) 4 Black. Com. ch. 17.

altering or defacing any ear-mark or brand upon any horse, sheep, swine, or cattle of another-fine within fifty dollars, and liability in treble damages. 4. Knowingly and maliciously destroying any horse, sheep, swine, or cattle of another; unless found trespassing -fine within five hundred dollars, or imprisonment within twenty days, or both, and liability in double damages. (a) Does not this indirectly sanction the killing of trespassing animals? 5. Knowingly and maliciously destroying trees in any nursery, garden, orchard, or yard, belonging to another-fine within five hundred dollars, and liability in double damages. 6. Knowingly and maliciously destroying any tree belonging to another, not within the foregoing description-fine within one hundred dollars, and liability in double damages. 7. Knowingly and maliciously destroying any public ornamental tree- fine within one hundred dollars. 8. Knowingly and maliciously destroying or defacing any milestone or guide-board, on any public road - fine within fifty dollars, or imprisonment within ten days, or both. 9. By the act to prevent the destruction of timber, the destroying of any trees belonging to another is prohibited under a penalty within twenty dollars for each tree; but a distinction is made among different trees. 10. Intentionally obliterating or destroying any public notification set up by authority of law-fine within ten dollars, or imprisonment within one day, or both. 11. By the act for the better security of toll and other bridges, there is a penalty of between five and fifteen dollars for defacing any sign affixed thereto; and another within five dollars for riding or driving over such bridge faster than a walk. 12. Injuring or destroying trees on the lands belonging to the State, or otherwise trespassing thereon-fine within one hundred dollars, and imprisonment within twenty days. (b) The above specifications furnish a remarkable instance of the particularity which I have so often referred to in the definition of offences. There certainly could be no difficulty in providing a general penalty for the malicious destruction of every kind of property without specification, but varying according to the value destroyed.

We have thus reviewed, as briefly as possible, the principal offences made punishable in this State, and the measure of punishment assigned to each. This examination has shown, that although our criminal code is yet crude and imperfect, its spirit is deserving of all commendation. The Dracos among mankind have had no part in it. Humanity has presided over every enactment. How remarkable the contrast between this country and England, where, in the time of Blackstone, there were no less than one hundred and sixty capital offences. (c) Our whole number of penal enactments

(a) Poisoning or attempting to poison domestic animals. Act of April 8, 1856. (b) See act of April 11, 1857; also act of March 26, 1859; also act of March 24, 1860. The latter act punishes malicious injuries to different classes of buildings, public and private.

(c) See 4 Black. Com. 18.

scarcely amount to this. We have but one capital offence; but two penitentiary offences for life; and the rest never exceed twenty years, and do not average more than ten. Then as to the minor punishments, imprisonment in jail is very rarely over thirty days, and does not average ten; and fines rarely exceed five hundred dollars, and do not average one hundred. On the score of humanity, then, we may reasonably congratulate ourselves. Nor has experience thus far shown that we have erred in this benevolent way. Our criminal records will probably show as few prosecutions and as few depredations, in proportion to our population, as those of any other state or nation; although our local exposure to travelling depredators is very great. It will be observed that there is no provision against compounding or compromising a crime, between the party injuring and the party injured, as there is in England. This will probably be considered as a defect. Again, there is no provision against misprisions, or the concealment of crimes having knowledge of their commission, as there is under the acts of Congress. Whether this be a defect, may be more questionable. Perhaps the duty of information may be safely left to the public spirit and private interest of individuals, without punishment, as we have seen it is without reward. On the whole, then, with little to censure, we have a great deal to admire, in our criminal law. The defects exist only in the details, and can be easily remedied; while the merits are fundamental, and characterize the entire system. You can hardly appreciate them as they deserve, unless by a comparison with some other system; and if you take that of England, it will be a contrast rather than a comparison.

LECTURE XXXVI.

CRIMES UNDER THE LAW OF THE UNITED STATES. (a)

§ 196. Crimes Relating to the Currency. The federal government, being framed and designed for national purposes only, as distinguished from local or municipal, we have seen that its power to define and punish crimes is limited, by this consideration, to a comparatively small number of cases, rendered absolutely necessary for its well-being; while the general power of punishment is reserved to each State, as belonging to its internal police. We have already enumerated the cases to which the federal power of punishment extends, whether by express provision or incidentally; but it will be proper here briefly to recapitulate them. Congress, then, has the express power of punishment in five classes of cases;

(a) See a good analysis of the criminal law of the United States in the preface to 2 Wheeler's Crim. Cases; Wharton's Criminal Law, 124–47.

namely: 1. Offences relating to the public securities and currency. 2. Offences committed on the high seas. 3. Offences against the law of nations. 4. Treason. 5. Offences committed in places of exclusive legislation. And Congress has exercised the incidental power of punishment in six classes of cases, making in all eleven; namely: 6. Offences against the revenue laws. 7. Offences against commerce. 8. Offences against the post-office regulations. 9. Offences against foreign nations. 10. Offences against the federal government below treason. 11. Offences committed by federal officers. Instead, therefore, of classifying these offences according to the subject-matter, as in the preceding lecture, I shall adopt the arrangement just indicated; except that the fourth and tenth classes will be united, in order to present at one view all the offences against the federal government. The description will contain all offences of any considerable importance, though some trivial ones may be omitted; at the same time, in aiming at brevity, I shall generalize, where the acts of Congress particularize.

By the federal constitution, Congress has power" to provide for the punishment of counterfeiting the securities and current coin. of the United States."(a) Under this provision, the following offences are made punishable; the description being abbreviated as much as possible. 1. Falsely making, altering, forging, or counterfeiting with intent to defraud, any treasury note, or any writing, to obtain money from the United States, or their officers; or any certificate of public debt, or any letters-patent, or any writing to transfer public stock, or to receive any dividend thereon, or any pension from the United States, or any abstract or official copy of the registry, license, or enrolment of any vessel; or any certificate of ownership, passport, sea-letter, or clearance granted to any vessel; or any permit, debenture, or other document, granted by the officers of the customs; or procuring the same to be done; or assisting therein; or knowingly using any such writing or document; or attempting so to do-fine within five thousand dollars, and imprisonment within ten years, varying according to the nature of the instrument. The act of 1790 punished some of these forgeries with death, but this is virtually repealed by milder provisions since enacted. 2. Falsely making, forging, altering, or counterfeiting any coins resembling the gold or silver coins of the United States, or foreign coins current therein; or procuring the same to be done, or assisting therein; or knowingly using or passing such coins or attempting so to do; or bringing such coins into the country for the purpose of using or passing them-fine within five thousand dollars, and imprisonment within ten years. For similar offences upon the copper coin-fine within one thousand dollars, and imprisonment within three years; and there is a penalty of ten dollars for using any copper coins except cents and half-cents 3. Any person employed at the mint debasing or

(a) 2 Wheeler's Crim. Cases, Pref. 57.

making too light any of the coins there struck, with intent to defraud; or embezzling any of the metals left there to be coined, -fine within ten thousand dollars, and imprisonment within ten years. 4. Impairing, clipping, diminishing, or falsifying, any of the gold or silver coins current in the country with intent to defraud-fine within two thousand dollars, and imprisonment within two years. It only remains to be observed, that, as to most of the offences now described, the jurisdiction of the State courts is expressly reserved; and we have already seen that State legislation has undertaken to provide for them. As to the coins, however, doubt exists on two points; namely, first, whether the State legislatures have any authority to legislate on the subject; and secondly, whether in the absence of State legislation, the State courts can entertain jurisdiction of the offences provided for by Congress with an express reservation of State jurisdiction. I merely state. these questions, without intending to discuss them; having already considered the subject of jurisdiction as fully as my limits will permit.

§ 197. Crimes on the High Seas. (a) Congress has express power" to define and punish piracies and felonies committed on the high seas;" because the high seas are not within the jurisdiction of any particular State. They are the common highway of all nations, and crimes there committed are the proper subjects of national cognizance. The high seas include not only the ocean proper, but also every river, haven, harbor, basin, bay, or roadstead, without the jurisdiction of particular States, or where the tide ebbs and flows. The offences provided for are the following, very much abridged: 1. Piracy. This is an offence against the law of nations, a pirate being considered as the enemy of all mankind; and by the law of nations piracy is robbery on the high seas, and is punishable with death. By the acts of Congress, piracy is also punishable with death, and the following offences, committed on the high seas, are declared to be piracy; namely: First, any person committing robbery or murder, or any other capital offence by the laws of the United States. Secondly, any master or mariner piratically running away with any vessel, or with goods or merchandise of the value of fifty dollars; or voluntarily giving up a vessel to pirates. Thirdly, any seaman laying violent hands upon his commander, to prevent his fighting in defence of his vessel or goods, or making a revolt in the vessel. But in these cases, if the vessel be foreign, and the offence be not committed by or upon any American citizen, our courts will not entertain jurisdiction. Fourthly, any American citizen committing any piracy aforesaid, or any act of hostility against the

(a) See acts of 1790, 1804, 1819, 1820, 1825; 4 Black. Com. 71; U. S. v. Ross, 1 Gallison, 624; U. S. v. Smith, 1 Mason, 147; U. S. v. Bevans, 3 Wheaton, 336; U. S. v. Palmer, 3 id. 610; U. S. v. Wiltberger, 5 id. 76; U. S. v. Smith, 5 id. 153; U. S. v. Pirates, 5 id. 184; U. S. v. Holmes, 5 id. 412; 2 Wheeler's Crim. Cases, Pref. 27; People v. Tyler, 7 Mich. 61.