price of provisions (1 East Rep. 343); putting a dangerous commodity on board a ship without notice to the owner or master (3 East 201) - are all misdemeanors punishable at common law by indictment. And in elder times similar discussions must have arisen as to cheats, conspiracies, libels, maintenance, forgeries, forestalling, &c.

The distinction stated by Blackstone is very easily perceived in crimes against the public, as such; as in treason, insurrections, sedition, obstructions of public process, murder, &c. But I ask, if in many of the preceding instances quoted, the same principle is as apparent.

As far as the light of adjudged cases will reach there is no difficulty, and as far as principles are developed in those cases, we may find a good general guide.

I. It is alleged that all breaches of the peace, and all acts that have a tendency to a breach of the peace, are punishable as public wrongs. And the reason seems to be that one great object of society is to preserve peace and to protect the persons of the citizens from injury. This is an implied condition in the very nature of society, that the citizen shall obey, and the public protect. All public writers agree that the protection of life, liberty, and property, constitute the great ends of society.

All breaches of the peace-Assaults and batteries, maiming, illegal imprisonments, larcenies. Com. Dig. Indictment D.; 3 Bac. Indictment E.; 2 Hawk. ch. 25, sec. 4; 4 Black. Com. 243. Entering a dwelling house with force and arms. 3 Burr.

1698.

All acts tending to a breach of the peace-Libels, endeavors and solicitations to commit crimes, conspiracies. Com. Dig. Indictment D.; 3 Bac. Indictment E.; 2 Hawk. ch. 25.

The reason assigned for classing libels among public wrongs, is because they have a tendency to excite men to revenge and resentments, and thereby the public peace is endangered. But would the unjust conversion of another's property, be the less likely to produce revenge and resentment? In a nearer or more remote degree almost all private injuries tend to the breach of the public peace.

So the reason assigned why a conspiracy is a public wrong, is, that it has a tendency to a breach of the public peace. 3 Burr. 1321. It is not material what the act is for which the conspir

acy is formed, if it be unlawful. Why, however, has a conspiracy to injure or cheat another, any more tendency to a breach of the peace, than the actual cheating of him? or the actual malicious prosecution of him? Yet these latter acts, if done by one person only, are not indictable, unless in the case of a cheat there be a false public token. 1 Black. Rep. 273.

2 Burr. 1125.

So unlawfully entering a yard, digging up the ground, erecting a shed, and expelling the owner from the possession, is not an indictable offence, unless there be actual violence or riot; mere constructive force is not sufficient. 3 Burr. 1698.

II. A second principle is that all unlawful acts against which common prudence cannot guard a man, are punishable as public wrongs; as cheats with false public tokens; conspiracy; reading a writing falsely to an illiterate man, whereby he seals. it (Com. Dig. Justices B. 33; 1 Sid. 312); forgery of writings not records or deeds (1 Hawk. ch. 70, sec. 11; 2 Ld. Raym. 1461); cancelling or tearing a note obtained from the party by false insinuations (Mod. Cas. 175; 11 Mod. 398); selling counterfeit coin (Cro. Cir. Comp. 311); selling by false weight and measures (3 Burr. 1697; Com. Dig. Indictment D.)

But if the cheat be of a nature against which common prudence may guard a man, it is not a public wrong. Cowp. 323; 2 Burr. 1125, 1130; 1 Wils. 301; Salk. 697. It is not very easy to give a good reason why the credulity of an individual should vary the nature of an offence. It is certainly more proper for the law to protect those who have not common prudence, than those who have. Sed ita lex scripta est.

III. A third principle is that every unlawful act which affects injuriously the public health or the public police, is a public wrong. Selling unwholesome provisions, 4 Black. Com. 161; carrying on trades, which occasion uncomfortable as well as unwholesome smells near dwelling houses, 1 Burr. 333; putting a dangerous commodity on board a ship without notice, 3 East Rep. 201; common nuisances.

IV. A fourth principle is that all acts contra bonos mores are public wrongs. Keeping bawdy houses, 1 Hawk. ch. 74; digging up dead bodies, 2 T. R. 733; lewdness; debauching another man's wife, Comb. 377. Yet seducing a woman's affections, but not her person; blasting reputation by false stories; common lying; private frauds, &c.,⋅ are not public wrongs.

We need not enumerate other classes. The offence of poisoning chickens must come within some one of the foregoing classes, or the authorities furnish no principle that embraces it.

It seems to me that poisoning chickens may be considered as a public wrong, because it is an offence against which common prudence cannot guard a man. It may be and usually is perpetrated in secret. It may also be considered as an offence against the public health, inasmuch as chickens are used for food, and if poisoned without notice they may be immediately killed, and prove highly injurious to life.

It may indeed be said that it is no more a public offence to poison chickens, than it would be to kill them with a gun or maim them. And that the latter are not indictable offences. It is certainly true that, except with a view to the public health, there is no striking difference between the cases. They both come within the principle of that class of cases, which are punished as public wrongs, because they cannot by common prudence be guarded against. Perhaps, also, they may be considered as contra bonos mores. But at any event I am not satisfied that the maliciously and wilfully maiming or killing an animal the property of another, is not an indictable offence.

The authorities relied upon to support the negative are not, in my judgment, conclusive. Blackstone, in vol. 4, p. 243, says, 'Malicious mischief or damage is the next species of injury to private property which the law considers as a public crime. This is such as is done, not animo furandi, or with an intent of gaining by another's loss, which is some, though a weak, excuse ; but either out of a spirit of wanton cruelty or black and diabolical revenge.' And therefore any damage arising from this mischievous disposition, though only a trespass at common law, is now, by a multitude of statutes, made penal in the highest degree.' It may perhaps be inferred, from this language, that Blackstone meant to consider this offence as a mere civil trespass at the common law. But it seems to me that he uses the word trespass in a larger sense, and that which in the old statutes is considered a proper sense, as equivalent to misdemeanor. For at common law all misdemeanors are trespasses; and are punishable by the court of sessions under Stat. of Ed. III. only by virtue of the word trespasses. 2 Hawk. ch. 8. s. 13. 38; 2 East's Rep. 5; 2 Mass. Rep. 533, 535. Besides, the scope

of the paragraph seems rather to consider the offence as one existing at the common law, and it is, in the original, assimilated to arson. But admitting that this was not in the opinion of Blackstone an indictable offence at common law, it is a mere dictum wholly unsupported by any authority adduced by him. The case stated in 2 East's Cro. Law, 1074, ch. 22, s. 17, may be relied on for the same purpose. That was an indictment charging that the defendant with force and arms, one black gelding, &c. the property of W. C. did unlawfully maim to the damage, &c. Upon a reference to the judges, after conviction, they held that the indictment contained no indictable offence; for if the offence was not in the Black Act, the fact in itself was only a trespass; for that the words vi et armis did not imply force sufficient to support an indictment.'

Now we may remark in this case that the maiming was not said to have been maliciously or wickedly done, but only unlawfully done. In fact, therefore, the maiming might have been done accidentally, or merely by over-riding, and not maliciously, and then there could be no doubt that it was not indictable. If it had been maliciously done, it was within the Black Act, which having made it a felony maliciously to maim or kill cattle, it could not be punishable at common law, as a misdemeanor, for the common law was repealed (if it ever existed) as to this offence. The court held that vi et armis did not import of themselves sufficient force to support an indictment; and so it was held in 3 Burr. 1698. But if the words had been added, with a pistol, with clubs, &c. would the result have been the same, setting aside the Black Act? It seems to me that the decision in this case may be right and yet our doctrine true; that the malicious maiming and killing cattle would be indictable at common law. The case, Rex v. Buck, for killing a hare, stands on peculiar ground. 2 Str. 679.

In Commonwealth v. Teifeher, 1 Dall. 335, it was held upon solemn argument that an indictment lay for maliciously, wilfully, and wickedly killing a horse. The counsel for the defendant admitted that if the offence had been charged to be secretly done, it would have been indictable. The attorney-general admitted that he could not find any case in point, but that in 12 Mod. 337, there was an information for killing a dog. He said that it had been decided to be an indictable offence in Pennsylvania,

at common law, maliciously to burn a barn. And he contended that the common law principle was that every act of a public evil example and against good morals, is indictable; and that this principle affected the killing of a horse, as much at least as burning an empty barn; and he further cited the principle, which is before stated, as to offences against which common prudence cannot guard. And he cited from the precedent book of indictments of the attorney-general of the commonwealth, an indictment for poisoning bread and giving it to chickens; McKean, C. J., in delivering the opinion of the court, said, ‘It is true that on the examination of the cases we have not found the line accurately drawn ; but it seems to have been agreed, that whatever amounts to a public wrong, may be made the subject of an indictment. The poisoning of chickens, cheating with false dice, fraudulently tearing a promissory note, and many other offences of a similar description, have heretofere been indicted in Pennsylvania; and 12 Mod. 337, furnishes the case of an indictment for killing a dog, an animal of far less value than a horse. Unless, indeed, an indictment would lie, there are some very heinous offences which might be perpetrated with absolute impunity, since the rules of evidence in a civil suit exclude the testimony of the party injured though the nature of the transaction generally makes it impossible to produce any other proof.' And he concluded by saying that the court entertained no doubt that the indictment would lie.

I would observe that the precedent cited from 12 Mod. 337, is not there to be found. There must be a mistake respecting it. In 6 Mod. 88, case 120, the following case is stated: ‘A feme covert was indicted by her husband for poisoning his cows with bruised glass put into their grains, and she was admitted in formâ pauperis, though the court said the husband could not convict her.'

Little can be gathered from this imperfect note; but taken literally it seems to imply either that the husband could not be a witness to convict his wife of the offence, or that the offence charged could not be supported against the wife of the owner of the cows. But it by no means implies that poisoning cows was not an offence indictable at common law in other persons, who had no property therein.

In Commonwealth v. Leach, 1 Mass. Rep. 59, the defendant