3 Conn. 112 | Conn. | 1819
In this case three objections have been made to the court’s rendering judgment against the prisoner.
The first is, that the prosecution is not founded oil statute. It is contended, that there never existed a common law defining crimes ; and if there had been one formerly, that the late constitution would have abolished it. On this head of objection I am incapable of entertaining a doubt. The principle contended for is perfectly novel. The country from whence our ideas of jurisprudence have principally emanated, and our sister states, have a common law defining and punishing crimes ; and it is remarkable, that the written constitutions, adopted by the latter, have made no difference in their practice on this subject. It is indispensibly necessary, that there -should exist a common law, on the broad principles of public convenience and necessity, defining crimes, and prescribing adequate punishments. To determine, by statute, every of-fence, and direct the punishment which shall be inflicted, has not, so far as I know, ever been attempted, and would be nearly impracticable. The community must, at least, be left exposed to injuries the most atrocious ; and the evils resulting would be much greater, than any reasonable mind will anticipate, from the exercise of a sound discretion, in the application of principles and analogies, which the common law supplies. Instead, however, of theory, we have well established 'rules to guide us on this interesting subject. A series of precedents, from a period beyond the memory of man, have settled the question now raised ; during which period, offences in this state, have been defined and punished, at common law. If we have any established law, this is immoveably fixed on the basis of principle, often recognized, and decisions uniformly rendered. The effect of the constitution on this point has been so entirely mistaken, that I am at a loss to conceive on what possible ground, it can be brought to-bear on the question. It must have been supposed by the objector, that the constitution implies an abolition of every rule of action preceding it, and the commencing life anew, without the benefit -of a single practical lesson of wisdom derived from our predecessors, or even from ourselves.
In reply to a supposition so • extravagant, I have already opposed the practice of those of our sister states, who have adopted written constitutions. It may likewise be effectually re
A second objection has been presented, that the statute against breaking the peace has repealed the common law on the subject before us. This act prescribes a punishment and fine for an assault and battery; and if the offence be aggravated by some notorious and high-handed crimes, a binding over of the offender to the next county court. The offence here spoken of, intends nothing beyond battery, attended with unusual damage. But the aggravation attending the crime now prosecuted, refers to the nature of the offence, and not merely to the accidental consequences. It was a battery ■with intent to maim and kill; and that distinguishes it from a beating, where there was no such intention. Trespass, assault and battery, trespass with an intent to kill, and murder, are each more aggravated than the other; and as they rise on the scale of aggravation, they constitute distinct offences! Murder is nothing but an aggravated trespass. Crimes are defined from their nature and consequences. Now, I cannot doubt, that the murderous intention and barbarous cruelty of the trespass complained of, is a different offence from any ordinary battery. This is in conformity with the law on this subject, universally understood, and sanctioned by numerous decisions.
The last objection made, is, that the offender may be confined in new-gaie for life, and by the constitution can only be prosecuted through the medium of a grand-jury. This objection is founded on the supposition, that at common law, it is competent for the court to inflict fine and imprisonment, without limitation. No precedent has been cited in proof of this principle, except the punishment for a libel published against the Lord Chancellor Bacon ; and the circumstances attending the above decision would take from it the force of authority, if,
The common law can never require a fine to the extent of án offender’s goods and chattels, or sentence of imprisonment for life. The punishment is both uncertain, and unnecessary. It is no more difficult to limit the imprisonment of an atrocious offender to an adequate number of years, than to prescribe a limited punishment for minor offences. And when there existsmo firmly established practice, and public necessity or convenience does not imperiously demand the principle contended for, it cannot be the common law, as it wants the main ingredient on which that law is founded. Indefinite punishments are fraught with danger, and ought not to be admitted, unless the written law should authorize them. It is true, that there have been instances of persons sentenced to new-gate for life, where the statutes did not give the authority; but those decisions have not been so numerous, nor do they appear to have been so thoroughly considered and discussed, as to possess the force of precedent.
I would advise the superior court to render judgment upon the verdict against Danforth.
Upon an information, filed by the state’s attorney, for an assault and battery, with an intent to kill, the defendant has been convicted, and now moves in arrest of judgment ; because,
1. This is an offence by statute, whereof the county court has jurisdiction ; or,
2. It is an offence at common law, whereof no court has jurisdiction; or,
3. It is punishable by imprisonment for life, and by indictment only.
1. By statute, “ whoever shall disturb, or break the peace, by tumultuous and offensive carriages, threatening, traducing, quarrelling, challenging, assaulting, beating or striking any other person, such person or persons, so offending, shall be liable to pay to the party hurt or stricken, just damages ; and also shall pay such fine, as, on consideration of the party smiting, or being smitten, and with what instrument, danger,
2. Have our courts jurisdiction of offences at common law ? Or have they power to define crimes, and prescribe punishments ? This power has^ been exercised time immemorial, in England, by courts originating in the common law ;
It has been said, by the same high authority, “ that our an
Accordingly, we find, in the first page of their statutes, a solemn provision against all indefinite laws, and discretionary punishments, which “ remained for substance the same,” until the adoption of the constitution. “ No man’s life shall be taken away ; no man’s honour and good name shall be stained ; no man’s person shall be arrested, restrained, banished, dismembered, nor any ways punished ; no man shall be deprived of his wife or children ; no man’s goods or estate shall he taken away from him, nor any ways endamaged ; under colour of law, or countenance of authority, unless it be by virtue or equity of some express law, established by the general court, and sufficiently published, or in case of the defect of a law in gny particular case, by some clear and plain rule of the word of God.”
In this state, our courts seem not to have considered the common law in force proprio vigoro, but the judiciary as auxiliary to the legislature, extending the written law, and supplying its defects,
At what period of our juridical history, our courts assumed this prerogative of Huyanla regis, does not appear ; but it does appear, that in 1743, the superior court suspended judgment against a malefactor,
It has been said, that the statute giving jurisdiction of “ high crimes and misdemeanours,” is a grant of common law powers ; but it is a maxim in jurisprudence, that “ penal laws are to be construed strictly.”
It is said, the exercise of this power is necessary. If so, statutes are unnecessary. If the judiciary is competent to adopt statutes, define crimes, and prescribe punishments, a legislature is useless! Whatever may have been the effect of constitutions in other states upon the common law, many of which have adopted it,
In conformity with this principle, the same high tribunal has more than once decided, that the courts of the United States have not jurisdiction of crimes at common law. “ Certain implied powers must necessarily result to our courts of justice from the nature of their institution. But jurisdiction of crimes against the state is not among those powers. To fine for contempt—imprison for contumacy—enforce the observance of order, &c. are powers, which cannot be dispensed with, in a court, because they are necessary to the exercise of all others : and so far, no doubt, our courts possess powers not immediately derived from statute ; but all exercise of criminal jurisdiction, in common law cases, we are of opinion is not within their implied powers.” “ The legislative authority must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offence.”
To come nearer home : “ Courts of law,” says an eminent jurist,
3. Is this offence punishable by imprisonment for life ? If so, it must be by indictment: for by the constitution, “ no person shall he holden to answer for any crime, the punishment of which may be death or imprisonment for life, unless on presentment or indictment of a grand jury.”
But it is said, that the common law can never require a sentence of imprisonment for life :—that Wrennum?s case was in the Star-Chamber. Be it remembered, that that court was composed of the oracles of the common law; and that its decisions, before it was perverted to political purposes, are justly holden in the highest estimation ; and they are now cited as authorities in our courts; of which we “ read plentifully” in The Reports, Croke, Popham, Hobart, &c. e. g. Twyne's case.
“ It is the most honourable court,” saith Lord Coke, “(our parliament excepted,) in the Christian world.” 3 Inst. 65. “ Seeing it is an ancient court, the precedents of the court are to be followed ; and the rather, for that the court consisteth of such learned and honourable judges.” 3 Inst. 66. In Rex v Johnson, Comb. 36. it is said, “ the authority of this court was, and is, in the King's Bench," who have often ex-ercised it in the same manner.
These authorities seem to demonstrate, that the common law sometimes requires imprisonment for life, or during the
It is admitted, that persons have been sentenced to new-gate for life, without the authority of statute. But these decisions are said not to have been so numerous, nor so thoroughly considered, as to have the force of precedent.. How numerous these decisions have been, or how often a point must be decided to have the force of precedent, I know not. I hope there are enough to attract the notice of those, who can relieve the wretched victims. Five cases only, decided in less than seventeen years, have come to my knowledge ;
As I am hound to give my own opinion, and my own reasons, I make no apology for dissenting from those whose opinions I so highly respect. If I am- in an error, it will, fortunately, be harmless^ If these remarks deserve any consideration, they may induce my brethren of the bench, and of the-bar, to review a decision, which I cannot but consider as subversive of a government of laws.
Judgment to be entered on the verdict.
Art. 10. s. 3.
Tit. 125. e. 1. s. 1, 2.
Laws of Plymouth, p. 8.
Revision of 1672, p. 56.
Revision of 1750, p. 185.
Commonwealth v. Barlow, 4 Mass. Rep. 439. Bacon's case, 1 Lev. 146. 4 Black. Comm. 216.
Slat. til. 42. c. 1. s. 42.
Newgate was established in October, 1773.
Slat. til. 118. c. 1. s. 1. 4.
4 Inst. 71. Rex v. Curl, 2 Stra. 789.
State v. Steele, cited 2 Root, 62. State v. Wilson, Ibid. Knowles' case, 3 Day 103.
Commonwealth v. Knowlton, 2 Mass. Rep. 530, 534. United States v. Isaac Williams, 2 Cranch 82. n.
1) Per Iredell, J. in Chisholm v. Georgia, 2 Dall. 435.
1 Trumb. Hist. Conn. 91, 95.
1 Hutch. Hist. Mass. 393. Neal, passim.
Revisionof 1672. p. 1.—1702. p. 1.—1750. p. Í, —1784. 1. 205.—-1795. p. 1.—Laics of Massachusetts, edit. 1972.
Revisions of 1672, and 1702.
3 Inst. 66.
Laws of Matsacku-selts , edit. 1672, p. 51.
1 Hutch. Hist. Mass. 384. 387.
Willford & al. v. Grant, Kirby 117.
2 Swift’s Syst. 365.
Knowles' case, 3 Day, 103. 108.
Tit. 66. -c. 3. s. 8.
Thomas' case, Windham, 1809.
Tit. 66. e. 3. 5. 7.
Steele's case, cited 2 Roof 62.
⅞ Domat, 646.
Parkers case, Tolland, December, 1805.
Rex v. Barney, Hartford, September, 1743.
3 Inst. 162. Brad, lib. 3. 144. **SiquisaUe-riusvirilia absciderit-, sequitur pana capitalist
October Session, 1743.
Special Session, November, 1743.
1 Black. Comm. 88.
See the constitutions of Ncw-Hampshirc, Massachusetts, New-York, New-Jerscy, Maryland, Scc.
Vide Address of NeiV'Havm Convention, 1804.
Articles, 2, 5.
Ex parte Bollman and Swartout, 4 Cranch, 75, 93.
The United States v. Hudson & Goodwin, 7 Cranch, 32, 34. See also The United States v. Coolidge & al., 1 Wheat. 415.
Ch. J. Swift, 2 Swift's Syst. 366.
Lord Camden. See. 1 Day, 81. n.
Art. 1. s. 9.
Davis' case. Dyer 188. b. See also Sir Thomas Savill's case, Pop. 207.
Sir William Waller's case, Cro. Car. 378.
Harrison’s case, Cro. Car. 503.
Brewster and Brooke's case, Kelyng 23. See also 2 St. Tri. 528, 538, 545,
1 Hawk. P. C. 88.
4 Bla. Comm. 118.
John Adams, New-Haven, August, 1801. William Riley, New-Haven, January, 1807. Josiah Smith, Hartford, November, 1808. Reuben Adams, jun. Windham, January, 1810. Prince Mortimer, Middlesex, December, 1810.