Lawbreaking

“ But that, on the contrary, the dressing up in legal form of such crimes (as that the grown men of one—only one—class, may at the will of another, a worse, class,—the nobles and the officials,—be subjected to an indecent, savage and revolting punishment) shows, better than anything else, that where such sham legalization of crime is possible, there exist no laws at all, but merely the savage license of brute force. ”

“ The genius, the nature, the spirit of our state governments amount to a prohibition of such acts of legislation, and the general principles of law and reason forbid them. Per Chase, J. Ibid.
15. The words and intent of the prohibition embrace, 1st, every law that makes an action done before the framing of the law, and which was innocent when done, criminal, and punishes such action; 2d, every law that aggravates a crime, or makes it greater than it was when committed; 3d, every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed ”

“ I might exhibit abuses which have occurred under the Fugitive Act,—the number of free persons it has doomed to Slavery, the riots it has provoked, the brutal conduct of its officers, the distress it has scattered, the derangement of business it has caused,—interfering even with the administration of justice, changing courthouses into barracks and barracoons, and filling streets with armed men, amidst which law is silent. ”

“ As I said before, the civil law-courts were upheld for the defence of private property; for nobody ever pretended that it was possible to make people act fairly to each other by means of brute force. Well, private property being abolished, all the laws and all the legal 'crimes' which it had manufactured of course came to an end. Thou shalt not steal, had to be translated into, Thou shalt work in order to live happily. Is there any need to enforce that commandment by violence? ”

“ But, my lords, in order to discover whether this consequence be necessary, it must first be inquired why the present law is of no force? For, my lords, it will be found, upon reflection, that there are certain degrees of corruption that may hinder the effects of the best laws. The magistrates may be vitious, and forbear to enforce that law, by which themselves are condemned; they may be indolent, and inclined rather to connive at wickedness by which they are not injured themselves, than to repress it by a laborious exertion of their authority ”

“ This account of the considerations which have regulated the punishment of crimes explains the severity with which 'criminal negligence' is in some cases punished, and that severity is justified by the account given of the true principle of criminal law, the principle, viz., that crime should be punished according to the importance of the right which it violates, and to the degree of terror which in a well-organised society needs to be associated with the crime in order to the protection of the right. ”

“ They are through out punitive and highly penal; they punish with death or with imprisonment almost as bad as death, the crime of treason; they create a new crime, that of rebellion, and punish it with imprisonment or fine, or with both, at the discretion of the court, and, to all these penalties superadd those of confiscation and of civil disability, heretofore unknown to our penal code. No one can doubt, that this is a penal statute designed to punish treason and rebellion. ”

“ From the popular hatred and abhorrence of illegal confinement, torture and extortion of confessions of violations of the 'law of the land' evolved the fundamental idea that no man's life, liberty or property be forfeited as criminal punishment for violation of that law until there had been a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement and tyrannical power. ”

“ The legislators, (or rather lawyers, whose opinions, when alive, were interested and venal, but which after their death become of decisive authority, and are sovereign arbiters of the lives and fortunes of men) , terrified by the condemnation of some innocent person, have burdened the law with pompous and useless formalities, the scrupulous observance of which will place anarchical impunity on the throne of justice ”

“ Under a Legislation which should strictly and systematically embrace every possible crime against the outward Rights of the Citizens, and under an Administration from which actual crime could seldom or never conceal itself or escape the punishment threatened by the Law, every thought of crime, as something wholly vain and leading to nothing but certain punishment, would at once be stifled in its birth. ”

“ If great principles sometimes appear as finicky obstructions in bringing a criminal to heel, this admonition of a wise judge gives the final answer: 'Such constitutional limitations arise from grievances, real or fancied, which their makers have suffered, and should go pari passu with the supposed evil. ”

“ In that case, the operations of the law would come to a stand-still, and the disorders arising therefrom would soon be so great as to compel the people to violate their constitutional provision and—leaving old offenses unpunished—to try and stop disorders by energetically punishing new offenses. For such a stand-still of the law would be the punishment of their laziness, negligence, or partiality; and why should the people inflict upon themselves a violence of this kind? ”

“ No one may enter another's land and tenements by strong hand nor with a mob, upon pain of imprisonment and ransom at the King's will.
Charters, releases, obligations, quitclaim deeds and other deeds burnt or destroyed in uprisings shall be reissued without fee, after trial by the king and his council. Manumissions, obligations, releases and other bonds and feoffments in land made by force, coercion or duress during mob uprisings are void.
Men who rape and women consenting after a rape shall lose their inheritance and dower and joint feoffments. ”

“ The primitive history of criminal law divides itself therefore into four stages. Understanding that the conception of Crime, as distinguished from that of Wrong or Tort and from that of Sin, involves the idea of injury to the State or collective community, we first find that the commonwealth, in literal conformity with the conception, itself interposed directly, and by isolated acts, to avenge itself on the author of the evil which it had suffered. ”

“ Be it enacted, &c., That if any person or persons, residing in any State or Territory, shall unlawfully combine or conspire together, with intent to invade, assail, or molest the government, inhabitants, property, or institutions, of any other State or Territory, or if any person or persons, with intent as aforesaid, shall counsel, advise, or attempt to procure any riot, invasion, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt, shall have the proposed effect or not, he or they shall be deemed guilty of a high misdemeanor ”

“ For me, to whom all earthly interests are dead, this policy is idle and superfluous. I hesitate not to tell you, my lord judge,—to proclaim to you, gentlemen of the jury,—that the laws which I have broken through my life I despise in death! Your laws are but of two classes; the one makes criminals, the other punishes them. ”

“ Such an action is as much and as flagrant a crime or offence against the community as an act of robbery or murder, which, though primarily an injury to the individual, is primarily avenged as an injury to the State. ”

“ In large part, dissatisfaction and resentment are caused, first, by the refusal of courts to recognize that breaches of the peace may be redressed through criminal prosecution and civil action for damages, and, second, by the expansion of a simple, judicial device to an enveloping code of prohibited conduct, absorbing, en masse, executive and police functions and affecting the livelihood, and even lives, of multitudes. ”

“ A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, and removed to the state having jurisdiction of the crime. ”

“ And when the legislators find their Byzantine discussions on the ``juridical entities'' of crime and punishment broken in upon by a recrudescence of crime, or by a serious manifestation of some phenomenon of social pathology, then all they can do in their perplexity and astonishment is to pass some new repressive law, which for a moment stills the outcry of public opinion, and remits the matter once more from the acute to the chronic phase. ”

“ It is, I think, a maxim of government, that the importance of the political inconveniences, arising from the impunity of a crime, are directly as the injury to the publick, and inversely as the difficulty of proof. ”

“ His character is under the protection of the court.”
“No, sir!” said the advocate, with energy; “no court, however high,—no tribunal, beneath that of Heaven itself, whose decrees we dare not question,—can throw a shield over a man like this. There are crimes which stain the nation they occur in; which, happening in our age, make men sorry for their generation, and wish they had lived in other times.” ”

“ How little the notion of injury to the community had to do with the earliest interferences of the State through its tribunals, is shown by the curious circumstances that in the original administration of justice, the proceedings were a close imitation of the series of acts which were likely to be gone through in private life by persons who were disputing, but who afterwards suffered their quarrel to be appeased. ”

“ Can it be supposed, that those who have the courage to violate the most sacred laws of humanity, and the most important of the code, will respect the less considerable and arbitrary injunctions, the violation of which is so easy, and of so little comparative importance? ”

“ With the triumph of democratic governments and judiciaries around the world, it seems particularly disturbing that our own legal system is tested daily by the epidemic of crime and violence here at home. ”

“ The actual distinction between crimes and civil injuries in English law is no doubt largely accidental. As the historians of law point out, the civil process, having compensation, not punishment, for its object, is the form which the interference of the community for the maintenance of rights originally takes. ”

“ Under this head we comprehend not only assassinations, and robberies committed by the populace, but by grandees and magistrates; whose example acts with more force, and at a greater distance, destroying the ideas of justice and duty among the subjects, and substituting that of the right of the strongest, equally dangerous to those who exercise it, and to those who suffer. ”

“ I will have a file of men on guard, and fire on any creature that infringes upon the vested rights which I possess in my property. I will defend myself," said I, growing warm under the oppressive weight of the law, "and maintain my vested rights." ”

“ The most prevalent problems were: murder, robbery, rape or forced marriage of wealthy women, counterfeiting of coin, extortion, misdemeanors by sheriffs and escheators, bribing of sheriffs and jurors, perjury, livery and maintenance agreements, idleness, unlawful plays, and riots. Interference with the course of justice was not committed only by lords on behalf of their retainers; men of humbler station were equally prone to help their friends in court or to give assistance in return for payment. ”

“ The adage constantly quoted, yet never out of fashion, that 'Whom the Gods wish to destroy they first make mad,' is having a pointed illustration in these successive judicial assaults upon the rights of the people. ”

“ As a warning against robbery with violence, they give a lesson in official violence by{12} flogging the criminal; and, by way of teaching the sanctity of human life, they judicially murder the murderer. Many a grotesque absurdity is solemnly and deliberately enacted in their so-called “courts of law” ”

“ The public has seen law defied, a whole generation of habitual law-breakers schooled in evasion and shamelessness, courts ineffective through fluctuations of policy, delays, perjuries, negligencies and other miscarriages of justice, officers of the law double-faced and mercenary, legislators timid and insincere, candidates for office hypocritical and truckling, and office-holders unfaithful to pledges and public expectation. ”

“ Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. ”

“ All judges who have, since the rebellion, passed sentence of death against any of his majesty's liege subjects, for any supposed or real crime, committed or pretended to be committed against any law enacted or made by the Congress, or by any of the usurped or pretended legislatures of the colonies, making the fact or facts criminal for which he, she, or they were condemned to suffer death. ”

“ In old times a dispute between man and man was settled by blows—fisticuffs —gradually superseded by the sword, at last by the pistol; and now we have thrown that out, and established a system of jurisprudence. Now all these petty grievances must be settled in court. Private violence must no longer be permitted, and that is a great march in civilization. ”

“ Thus, by the side of the regular courts of law which prescribe specific penalties for defined offences proved against a man by a regular form of trial, arbitrary governments resort to various extrajudicial forms of arrest, detention, and punishment, depending on their own will and pleasure. ”