Capital offense

“ It is a very high duty, and a common duty, devolving upon every respectable citizen. The question is this—and we desire that there may be no delusion or misapprehension on your mind in respect to it—in a capital case, if the proof on behalf of the Government should be such as to satisfy your mind that the prisoner was guilty of the capital offence, whether or not you have any conscientious scruples as respects capital punishment, that would prevent your rendering a verdict of guilty? ”

“ Find out who that individual is and let him answer to the law, but do not visit his misdeeds upon innocent stockholders who have had nothing whatever to do with the offense, who knew nothing of its commission and could have done nothing to prevent it if they had known. Remember, that a penalty inflicted upon a corporation is actually inflicted not upon guilty persons but upon innocent investors. ”

“ To expatiate upon the principles of penal law is foreign to the purpose of this work, but thus much is evident to the plainest apprehension, that the objects most to be desired in it are the restriction of the number of capital inflictions, as far as is consistent with the security of society; and the employment of every method that can be devised for rendering the guilty persons serviceable to the public, and just to themselves ”

“ This court has held that, where directions as to the method of conducting a business are embodied in a revenue act to prevent loss of taxes, and the act declares a willful failure to observe the directions a penal offense, an evil motive is a constituent element of the crime. ”

“ At the present day nearly all enterprises, for the prosecution of which large expenditures are required, are conducted by corporations. They occupy, in such cases, almost all branches of industry, and prosecute them by means of the united capital of their members with increased success. ”

“ To the employer it is a question whether his individual rights as to the control of his property shall be so far overborne as not only to deprive him of his freedom, but also expose him to interference seriously impairing the value of his capital. To the employees, it is a question whether, by the force of coercion, they can wrest, to their own profit, powers and control, which, in every civilized community, are secured as the most sacred and inalienable rights of the employer. ”

“ It is not the purpose of the statute to confiscate the property and capital of the offending trusts. Methods of punishment by fine or imprisonment of the individual offenders, by fine of the corporation or by forfeiture of its goods in transportation, are provided, but the proceeding in equity is a specific remedy to stop the operation of the trust by injunction and prevent the future use of the plant and capital in violation of the statute. ”

“ The issuing of bills as a currency by such a corporation without authority is not only contrary to positive law, but, being ultra vires, is an abuse of the public franchises which have been conferred upon it; and the receiver of the bills, being chargeable with notice of the wrong, is in pari delicto with the officers, and should have no remedy, even for money had and received, against the corporation upon which he has aided in inflicting the wrong. ”

“ With the tendency of the law to extend the liability of the owners of capital for all the injuries attendant upon the use of capital, even to those injuries which proceed from it only constructively, and to relieve those who have no capital from ordinary human responsibility for themselves, this injustice is increasing. ”

“ The man who obtained the loan of money and fraudulently withheld his security, was deemed to have committed a capital offence, nor could his high rank or honourable connexions skreen him from punishment. [1594] For it was considered, observes the orator, that an offender of this description not only defrauded the individuals with whom he dealt, but also made an attempt against the sources of public prosperity, commercial operations depending not on the borrower but on the lender, without whose coöperation no ship, or captain, or passenger, can move. ”

“ The apathy argument is predicated on the assumption that the penalty is used against the less influential elements of society, that the public is fully aware of this, and that it tolerates use of capital punishment only because of a callous indifference to the offenders who are sentenced. ”

“ There are no funds provided by which the common remedy by indictment could now be prosecuted: and since the most offensive and injurious nuisances are those supported by large capital, redress for the private injury is practically available only to persons who can afford to risk large sums in litigation. ”

“ Members who could not become ministers, and who yet wanted to do something, often had interest enough to hang somebody, or at least to get a law passed creating a new capital felony. [161]
Thus through the ambitions of private members and the general callousness of the ruling class, the number of capital offences kept ever growing, until, in theory, there were more than two hundred of them. ”

“ Corporations are allowed, but no watered stock and every stockholder has the same vote in electing officers of the company, whether he holds one share or any other number of shares, and any conspiracy to corner the market or to enhance the price of any article produced or manufactured is punished as a felony, the penalty being five years at hard labor in prison. ”

“ This problem arises from the fact that the public's desire for retribution, even though this is a goal that the legislature cannot constitutionally pursue as its sole justification for capital punishment, might influence the citizenry's view of the morality of capital punishment. The solution to the problem lies in the fact that no one has ever seriously advanced retribution as a legitimate goal of our society. Defenses of capital punishment are always mounted on deterrent or other similar theories. ”

“ These violators were not the corporations, which we all know have no souls, but their officers; yet the officers have gone thus far unwhipped of justice, much to the disgust of the masses of the people. But in future this defect should be remedied, and rich and poor among the individual violators of the law should be prosecuted criminally, and upon conviction sent to jail like any other criminal. I can understand how many men, who as private individuals would have avoided criminal or wrongful acts, had no scruples about violating laws in their corporate capacity. ”

“ But as the punishment was always by fining the corporations, and never by the imprisonment of the officers, who were the actual violators of the law, the masses of the people complained that while they themselves would have been sent to jail if guilty of criminal offences, these high and mighty railway and Trust officials were not, and that by fining the corporations only the innocent stockholders were made to suffer instead of the individual wrongdoers. ”

“ Public sentiment would be more shocked by the infliction of a penalty on a public officer for the performance of his duty, than by the infliction of this penalty on a bank, which, while carrying on the fiscal operations of the government, is also transacting its own business. ”

“ The true remedy for rebating and other wilful violations of law is not to be found in the infliction of heavy penalties on the guilty corporations, but on the responsible and guilty officers of those corporations, and not alone by fine but by imprisonment. Heavy fines inflicted on corporations fall finally on their stockholders, through a corresponding loss of dividend-paying power, and 884the lowering of market prices for their stocks. The proper remedy is punishment behind iron bars. ”

“ By the first crime act of the United States, forgery of public securities, or knowingly uttering forged public securities with intent to defraud, as well as treason, murder, piracy, mutiny, robbery, or rescue of a person convicted of a capital crime, was punishable with death; most other offenses were punished by fine and imprisonment; whipping was part of the punishment of stealing or falsifying records, fraudulently acknowledging bail, larceny of goods, or receiving stolen goods ”

“ To dissolve a corporation, or to penalize it, simply because it possesses the power to commit an offense which it does not commit, would be equivalent to ordering the arms of a stalwart citizen cut off lest he use his fists to pound some weaker citizen to a jelly. ”

“ Attorney-General of the United States, declared in 1892:
"Excessive capitalization of corporations, dishonest management by their
executive officers, the destruction of the rights of the minority, the
theft of public utilities, the subordination of public interests to
private gain, the debauchery of our local legislatures and executive
officers, and the corruption of the elective franchise, have resulted
from the facility afforded by the law to corporations to concentrate the
control of colossal wealth in the hands of a few men . ”

“ And while the company you were in on earth in a given transaction, however distinguished that company, is not going to help you with the Recording Angel,40 still, it is some comfort to know that wiser and abler men than yourself approved a course of imposing capital punishments to which you were a party, such punishments having been inflicted as part of a policy whose subsequent evolution revealed it to you as fundamentally wrong. ”

“ We know from experience what abuses have been practiced where the power has been conferred. Fraudulent issues, peculations, and embezzlements, and the accumulation of vast amounts of indebtedness, without any corresponding public benefit, have been rendered easy and secure from merited punishment. The purpose and object of a municipal corporation do not ordinarily require the exercise of any such power. They are not trading corporations and ought not to become such. ”

“ Should any person, association of persons, or corporation, or the officers or agents of any such corporation, person, or association of persons herein named, fail to make the report herein provided for, and pay said taxes, for thirty days after the termination of any quarter of the year, then he shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than fifty nor more than one hundred dollars. Each and every day after said thirty days have expired shall be deemed a separate offense. ”

“ But, by our definition, “a protective duty has for its object to effect the diversion of a part of the capital and labor of the people out of the channels in which it would otherwise run.” Plainly this device involves coercion. People would need no coercion to go into a new industry which had a natural origin in new industrial power or opportunity. No coercion is necessary to make men buy dollars at ninety-eight cents apiece. The case for coercion is when it is desired to make them buy dollars at one hundred and one cents apiece. ”

“ Chief Justice Field, said: 'We think that a corporation may be liable criminally for certain offenses of which a specific intent may be a necessary element. There is no more difficulty in imputing to a corporation a specific intent in criminal proceedings than in civil. A corporation cannot be arrested and imprisoned in either civil or criminal proceedings, but its property may be taken either as compensation for a private wrong or as punishment for a public wrong.' It is held in England that corporations may be criminally prosecuted for acts of misfeasance as well as nonfeasance. ”

“ But when a person claims to take from another all control of his property, to arrest him in the exercise of his occupation, and to impair his standing as a business man, in short to place him in a position which may ruin him in the midst of a prosperous career, the precise circumstances or facts on which he is authorized to do this, should not only be well defined in the law, but clearly established in the court. ”

“ That corporations are bound by their contracts is admitted; that money corporations, or those carrying on business for themselves, are liable for torts, is well settled: but that a legislative corporation, established as a part of the government of the country is liable for losses sustained by a non-feasance, by an omission of the corporate body to observe a law of its own, in which no penalty is provided, is a principle for which we can find no precedent. ”

“ The truth is that, with the great increase in corporations in very recent times, and in their extension to nearly all the business transactions of life, it has been found necessary to hold them responsible for acts not strictly within their corporate powers, but done in their corporate name, and by corporation officers who were competent to exercise all the corporate powers. When such acts are not founded on contract, but are arbitrary exercises of power in the nature of torts, or are quasi criminal, the corporation may be held to a pecuniary responsibility for them to the party injured. ”

“ It should, therefore, be the future policy of both the Federal Government and the States to punish corporations for illegal practices by criminal proceedings against those in their employ who are found to be responsible for them. Thus punishments will be confined to the guilty, and confidence will be restored among investors, for such prosecutions would in no way tend to depreciate the value of the stocks and bonds of the corporations concerned, but on the contrary they would tend to enhance their value by promoting honest management. ”