dollars, imprisonment within three years, and forfeiture of the vessel and furniture. 4. Any person, within our jurisdiction, whether citizen or not, being concerned in augmenting the force of any vessel in the service of one foreign government in war with another, with whom we are at peace- fine within one thousand dollars, and imprisonment within one year. 5. Any person within our jurisdiction, whether citizen or not, being concerned in setting on foot any military expedition against any foreign government with whom we are at peace-fine within three thousand dollars, and imprisonment within three years.

§ 205. Crimes committed by Federal Officers. These offences are provided for by virtue of the incidental and inherent power which every government has to protect itself from injury by its own functionaries. Some of them have already been described; others are peculiar to certain particular officers, and are not of sufficient general interest to call for any description; but the following apply to all coming within their principle: 1. Any officer counected with the judicial department, knowingly receiving or demanding unlawful fees - fine within five hundred dollars, and imprisonment within six months. 2. Any officer of the federal government being guilty of extortion under color of his officefine within five hundred dollars, and imprisonment within one year. 3. Any person having charge of the public arms, stores, munitions of war, or other property, wilfully embezzling or purloining the same - fine of fourfold the value, and stripes not over thirty-nine.

The

The view now presented of the criminal code of the United States, is necessarily imperfect, from its brevity; but it answers the purpose I had in view, which was to make you acquainted with the extent of federal power, on the subject of crimes and punishments. Should you have occasion to prosecute or defend for any of these crimes, you will of course consult the statutes for their exact definition. On the score of lenity, you will remark a considerable difference between the State and federal provisions. Here we have nine capital offences; namely, forgery, piracy, murder, rape, destroying a vessel, treason, rescuing a prisoner convicted of a capital offence, arson, and mail-robbery. average of fines, too, is very much higher; but on the other hand there is only one case of imprisonment for more than ten years. Again, whipping may be inflicted in two instances, and the pillory in one. (a) You will also remark that the provisions are more general for the punishment of accessories before and after the fact; Lut even here, they are not universal, as they should be. Nor is there any general provision, that the accessory may be punished without the conviction of the principal, though this is provided for in some cases. The provision against misprisions is general, but there is none against compounding offences. Taking all the provisions

(a) These modes of punishment have been abolished.

together, however, they probably meet sufficiently the chief exigencies of the federal government. In their details, as we have seen, they are obnoxious to criticism, in not clearly defining the terms employed. They are also deficient in method and arrangement, from having been made by piecemeal. For these reasons, a general and systematic revision of the whole subject would be an improvement.

PART VI.

THE LAW OF PROCEDURE. (a)

LECTURE XXXVII.

CIVIL PROCEEDINGS IN COURTS OF LAW. (b)

$206. Redress without Suit. I now enter upon the sixth part of these lectures, in which I am to consider the law of procedure, or, as it is more commonly called, practice. I have reserved this branch of our inquiries until now, in compliance with the general custom, which is to treat of rights first, and then remedies; or, in

(a) Since the text was published, great changes have taken place in the law of procedure, not only in England but in this country, all having for their object greater brevity and simplicity. In several of the States, codes of procedure have been framed, which, by abolishing all distinctions between proceedings in law and chancery, and between forms of action, have created an entirely new system. Such is the case in Ohio. But as the old forms are still retained in the federal courts, as well as in many of the State courts, I have deemed it proper to leave the text as originally written, making notes occasionally to show the operation of the Code, taking that of Ohio as a specimen. In its general outlines, it does not greatly differ from the codes of New York, Kentucky, and Missouri. It took effect July 4, 1853. For the States adopting codes, see ante, p. 58, note.

I take this occasion to say, that for more than twenty years I have been a persevering advocate for a reform of this nature. My views were earnestly urged in the first edition of this book. They were afterwards repeatedly pressed in the Western Law Journal, of which I had the editorial charge. See vol. 5, p. 338; vol. 6, p. 557; vol. 7, p. 216. Standing almost alone, at the first, and not daring to hope for so radical a change to begin with, as these codes have made, I prepared a bill to abolish commonlaw forms, in all cases, and substitute chancery forms in their place. This bill twice passed the lower house, once by a vote of 38 to 27, and at the next session, by a vote of 40 to 15; but on each occasion failed in the Senate on the pretext of want of time. This was in the years 1848 and 1849, and before the completion of any of the codes. They are now in the course of experiment, and promise the realization of all I ever anticipated. The only point in which they can be assailed, is their novelty, which gives rise to so many questions requiring adjudication. This objection could not have been made to my project, at least not to the same extent. For chancery forms have stood the test of many centuries; are not difficult to understand; and have been thoroughly expounded and settled.

(b) On the general subject of practice, see the third book of Blackstone; the third book of Swift; Howe's Practice; Duer's Practice; Tidd's Practice; Chitty's Prac tice; Archbold's Practice; Selwyn's Nisi Prius, with notes by Wheaton; Buller's Nisi Prius; Espinasse's Nisi Prius; Chitty, Stephen, Gould, and Lawes on Pleading; Wilcox's Forms; Leigh's Nisi Prius; Stephen's Nisi Prius.

other words, to discuss law in the abstract, before attending to its practical application. But for this general custom, I should have been inclined to prefer the synthetic to the analytic method; for I believe that the simplest way of teaching the elements of law, would be to begin with a single case of injury or wrong, and trace the proceedings with respect to it historically, from the first violation of the law up to the last step in the attainment of the remedy, in every form in which it can be administered. The student would thus be the better prepared for understanding legal rights in all their bearings and relations, by having first acquired a general idea of the mode in which legal remedies are applied. This may be mere conjecture; but the experiment would be worth making. I have, however, complied with the general custom, and reserve remedies until the last. Having, therefore, considered what our rights are, I am now to indicate the course of proceeding when those rights are violated. This is regulated almost entirely by the common law, and is, of course, very nearly the same in all the American as well as English courts. The organization of our federal and State courts, and the general apportionment of jurisdiction among them, have been sufficiently considered in the eighth lecture, on the judicial department. And our remaining inquiries naturally fall into four divisions: namely, first, civil proceedings in courts of law; secondly, civil proceedings in courts of chancery; thirdly, admiralty proceedings; fourthly, criminal proceedings; to each of which I shall devote one lecture. But before proceeding to the main subject of this lecture, I shall notice the principal modes of redress without suit.

1. Defence of Persons and Property. This falls more properly under the head of prevention than of redress, and has been before referred to. As a general rule, every one is allowed to prevent a threatened injury to the person or property, either of himself, or of those who stand in the relation of husband or wife, parent or child, master or servant, guardian or ward, by using just so much force as is necessary to prevent the injury and no more. To exceed this limit would be to convert defence into aggression. The law designs. to furnish a shield only, not a sword.

2. Reprisal. (a) If, without personal violence amounting to a breach of the peace, one can, by seizure or entry, as the case may be, recover the possession of any property, or the custody of a wife, child, servant, or ward, wrongfully withheld from him, the law justifies him in so doing. But no personal violence is permitted, in making such re-caption or reprisal; because, as a general rule, this would be to redress one wrong by doing another and greater. (b)

3. Abatement of Nuisances. (c) The causing of certain speci

(a) 3 Black. Com. 4.

(b) See ante, p. 220, note.

(c) 3 Black. Com. 5. An individual citizen may abate a private nuisance injurious to him when he could also bring an action, but he can abate a common nuisance

fied nuisances is usually punished as an offence. But the term nuisance comprehends whatsoever unlawfully annoys or does damage to another, in contravention of that great rule of right, so use your own as not to injure others. When therefore one suffers from a nuisance, as thus defined, the law permits him to abate it; that is, remove it in a summary manner, if this can be done without riot or personal violence. Moreover, damages may be recovered at law for the injury thus sustained, in an action on the case, to be described hereafter.

4. Distraining Property. (a) Under the English law, the right of distraining property is deemed of great importance. When rent is in arrear, landlords are permitted to seize the chattels of their tenants on the leased premises, in satisfaction thereof; and trespassing animals may likewise be seized by the owners of the land on which they trespass, to indemnify themselves for the injury thus committed. To try the legality of such seizures, the action of replevin is resorted to, as will be seen hereafter. But in this State no such summary proceeding is allowed, except for the collection of debts due to the State. Landlords cannot distrain for rent, and trespassing animals are the subject of special statutory regulations.

5. Accord and Satisfaction. (b) This takes place when the parties themselves agree upon the satisfaction to be rendered for any injury, which they are permitted to do in all cases not criminal; and if such agreement be performed, the accord and satisfaction form a complete bar to any action by the injured party. The law, which always endeavors to discourage litigation, will not disturb a compromise thus made.

6. Arbitration. (c) This takes place when parties refer any matter in controversy to the decision of third persons. The act of reference is technically called submission; the persons to whom the reference is made, arbitrators; and the decision made by them, award. At common law, any thing may be the subject of arbitration, which is not criminal. The usual mode of submission is by a penal bond, specifying the particulars submitted, and conditioned for the performance of the award when made; but any other form of agreement will be valid, if sufficiently specific. A court of equity will not compel the specific performance of an agreement for submission; but when an award has once been made, it is held conclusive between the parties, unless it be set aside for fraud, accident, or mistake; and if either party refuse to perform it, the other may

only when it obstructs his individual right. State v. Paul, 5 R. I. 185; State v. Keeran, 5 id. 497; Brown v. Perkins (Supreme Court of Mass.), 22 Law Reporter (June, 1859), p. 98.

(a) 3 Black Com 6.

(b) 3 Black. Com. 16. An accord and satisfaction moving from a stranger or person having no pecuniary interest in the subject-matter, if accepted in discharge of the debt, is a good defence to an action against the debtor. Leavitt v. Morrow, 6 Ohio State, 71. See post, § 211.

(c) 3 Black. Com. 16; 2 Story on Equity Juris. chap. 40; Kyd on Awards; Caldwell on Arbitration.