retain the horse until you pay him for his work. If you land goods on a wharf, or send them to a warehouse for storage, the wharfinger or warehouseman may retain them until payment of his dues. (a) If you send cloth to a tailor to be made into a garment, he may retain the garment until you pay him his charges. (b) These examples sufficiently illustrate the general principle.

Miscellaneous Liens. Under this head, I shall enumerate a few liens which do not come within either of the foregoing classes. In the case of salvage at sea, the salvors have a lien upon the goods saved for their compensation, which is always liberal, in order to encourage the utmost exertions; but this right is limited to goods lost or exposed in the course of navigation, usually called wrecks. (c) The finder of things on land has no lien unless the statute give him one. (d) We have a statute by which persons who take up stray animals, or boats adrift, have a lien thereon for their compensation, provided they take the proper steps, by advertisement and other proceedings. The master of a ship has no lien thereon for his wages, because he engages upon the credit of the owners; but all the rest of the crew have such lien, and in a court of admiralty may prevent the ship from sailing, and even cause her to be sold, if their wages be not paid. (e)

General and Particular Liens. I have thus far spoken of what are called particular liens, as distinguished from general. The distinction is this; a particular lien extends only to the charge made upon the identical property then in hand; but a general lien is that which covers any general balance of account. (f) Thus, when you put your horse to a livery stable, the keeper only has a particular lien for the expense incurred at that particular time; but if you leave your papers with an attorney, he may retain them not only for his fees for that particular service, but for his general balance of account against you. General liens are not favored in law: they exist only by the long-established usage of particular trades, or by express contract. Thus factors, wharfingers, bankers, insurance brokers, and attorneys are said to have a general lien by the force of usage alone; and in any other case, if you notify those who employ you that you will not receive

Co. 8 Gray, 262; Clark v. Lowell, &c. R. R. Co. 9 Gray, 231. But an innkeeper in such a case has a lien. York v. Greenaugh, Ld. Raym. 866; Black v. Brennan, 5 Dana, 312; Broadwood v. Granara, 28 Eng. Law & Eq. 443; 10 Exch. 417; Snead v. Watkins, 1 Com. Bench (N. s.), 267.

(a) But only persons regularly carrying on the business of warehousemen are entitled to this lien. Alt v. Weidenberg, 6 Bosworth, 176.

(b) See ante, note (b); Steinman v. Wilkins, 7 W. & S. 466. An agister of cattle, in the absence of a special agreement to that effect, has no lien on them for the keeping. Goodrich v. Willard, 7 Gray, 183.

(c) Abbott on Shipping, 399; Post v. Jones, 19 How. 150.

(d) Nicholson v. Chapman, 2 H. Bl. 254; Forster v. Juniata Bridge Co. 16 Penn. State, 393. But the finder of goods, for which a reward has been offered, has a lien. Wentworth v. Day, 3 Met. 352; Wilson v. Guyton, 8 Gill, 213.

(e) 3 Kent, Com. 165, 197; Abbott on Shipping, 475.

(f) Oppenheim v. Russell, 3 B. & P. 494; M'Farland v. Wheeler, 26 Wend. 467.

property for the purposes of your trade, without a general lien, those who employ you with that notice are bound by it. (a)

When a Lien does not Exist. You cannot acquire a lien by a voluntary or wrongful act: for instance, if you pay charges upon goods for the mere sake of getting possession, you do not thus acquire a lien. Again, you cannot acquire a lien by misrepresentation. If by a false statement you obtain possession of goods, you cannot retain them, though money be actually due you on account of them. (b) Again, you cannot acquire a lien where the person who gave you possession had no authority so to do. (c) Again, you cannot insist on a lien, when there has been any agreement or other circumstance, from which it may be inferred that you intend to waive the right of lien. (d) Finally, you cannot acquire a lien by assignment from another; for, as a general rule, a lien is a personal privilege which cannot be assigned. (e)

How a Lien may be Lost. With the exception of liens by mortgage or judgment, where possession does not usually accompany the lien, the general rule is that possession is essential to the existence of a lien. It would be highly prejudicial to the general interest of trade and traffic, if a lien could attach to goods in the market; because no one could know when he might safely buy them. It follows, therefore, that you lose your lien by parting with possession. (ƒ)

There are some other particular contracts to which I have not adverted in this lecture. Maritime loans on bottomry and respondentia were referred to in the lecture on mortgages. The charter party and the general contract of affreightment, are peculiar to the law of shipping, and I have not room for a description of them here; and the same is true of the implied contract of general average, by which all the parties interested in a ship and cargo, tacitly agree to contribute their proportions, if it becomes neces

(a) Knap v. Alvord, 1 Paige, 205; Bryce v. Brooks, 26 Wendell, 367; Dennet v. Cutts, 11 N. H. 163; 2 Kent, Com. 634; Smith's Merc. Law (Holcombe & Gholson), 559. A carrier has no general lien for back freights. Leonard v. Winslow, 2 Grant's Cases, 139.

(b) Lempriere v. Pasley, 2 T. R. 485; Taylor v. Robinson, 2 Moore, 730.

(c) Robinson v. Baker, 5 Cush. 137; Fitch v. Newbury, 1 Doug. (Mich.) 15; Daubigny v. Duval, 5 T. R. 606. But see Arendale v. Morgan, 5 Sneed, 708, and as to innkeepers' liens, see Sneed v. Watkins, 1 C. B. (N. s.) 267.

(d) Hewison v. Guthrie, 2 Bing. N. C. 755; Cowper v. Green, 7 M. & W. 633; Jackson v. Cummins, 5 id. 351; Chase v. Westmore, 5 M. & S. 180; Burdick v. Murray, 3 Vt. 302.

(e) Daubigny v. Duval, 5 T. R. 606; Holly v. Huggeford, 8 Pick. 76.

(f) Hutton v. Bragg, 7 Taunt. 14; M'Farland v. Wheeler, 26 Wend. 473; Bailey v. Quint, 22 Vt. 474; Nevan v. Roup, 8 Clarke (Iowa), 207. But delivery for a special and temporary purpose, Roberts v. Wyatt, 2 Taunt. 268; Reeves v. Capper, 5 Bing. N. C. 136; Hays v. Riddle, 1 Sandf. 248; or when obtained by fraud, does not dissolve the lien. Bigelow v. Heaton, 6 Hill, 43; s. c. 4 Denio, 496. The bailee loses his lien as against an innocent purchaser, where he redelivers the article to the bailor, even for a special and temporary purpose. Bodenhammer v. Newsom, 5 Jones (N. C.), 107. Continued possession is not necessary, however, in the case of equitable liens, such as the vendor's lien for purchase-money.

sary to sacrifice a part of the cargo for the safety of the rest. (a) Here, then, we close the consideration of property and contracts, which constitutes the fourth division of these lectures.

(a) For all these maritime contracts, see the 42d, 45th, 46th, 47th, and 49th lectures of Kent; and Abbott on Shipping, with American notes by Judge Story; and the two valuable treatises of Flanders on Shipping and on Maritime Law; also, Parsons on Maritime Law.

PART V.

THE LAW OF CRIMES.

LECTURE XXXIV.

CRIMES AND PUNISHMENTS IN GENERAL.

§ 186. Preliminary Considerations. (a) We have now reached that division of our inquiries, which is usually denominated criminal law, and to which, under the head of public wrongs, Blackstone devotes the fourth book of his commentaries. The distinction between civil and penal sanctions has already been adverted to. Society does not invite obedience to its regulations by the offer of rewards, but deters from disobedience by the threat of punishments. It is therefore to the terrors of the law that our thoughts are now to be chiefly directed. We are to contemplate the dark side of the human condition, and make ourselves familiar with the consequences of transgression. To the philanthropic inquirer, this is perhaps the most interesting branch of legal study. I cannot indulge myself in tracing the history of criminal

(a) It is not a little remarkable that we have no American treatise on criminal law. Kent does not touch the subject in his Commentaries. Swift, in his Digest, treats of crimes only with reference to Connecticut; and Tucker in his Notes to Blackstone, only with reference to Virginia. Nor have we any thing like a full collection of reported cases. There are, indeed, criminal cases scattered through all our reports; but the only exclusively criminal reports of which I am aware, are Wheeler's Criminal Cases, the New York City Hall Recorder, a small collection of Virginia Cases, and separate Reports of certain celebrated cases, such as Burr's Trial, Selfridge's Trial, Goodwin's Trial, and the like. Add to these Davis's Precedents, a valuable collection of Forms designed especially for Massachusetts; Livingston's Project of a Criminal Code for Louisiana; and an article on Crimes and Punishments in the Encyclopædia Americana; and we have nearly all the sources of information peculiar to this country. But if we look abroad, the books are abundant. And among these I would recommend Beccaria on Crimes and Punishments, Bentham on Legislation, and the fourth book of Blackstone, for the theory of criminal law; and for consultation and practice, the treatises of Hawkins, Hale, Foster, East, Chitty, and Russell, Archbold's Criminal Practice, M'Nally and Roscoe on Criminal Evidence, the English State Trials, and the Criminal Reports of Leach, Russell and Ryan, Moody and Jebb.

Since this note was written, we have been favored with the reports of Thatcher (Mass.), and of Parker (N. Y.); the leading criminal cases of Butler and Heard; and the treatises of Wharton, Lewis, Barbour, Bishop, the third volume of Greenleaf's Evidence, and Precedents of Indictments by Train and Heard; Leading cases in Criminal Law, with Notes by Bennett and Heard. Bishop on Criminal Law.

legislation in ancient and modern times; but I can assure you that there is no aspect in which the different ages present a greater diversity. An impartial survey cannot fail to conduct you to the gratifying conclusion, that mankind have been steadily improving in this department of legislation. It is hardly a metaphor to say that the ancient codes were written in blood; whereas the characteristics of modern criminal jurisprudence are mildness, compassion, and benevolence. In a word, humanity has kept even pace with the progress of civilization. In their anxiety to protect the life, liberty, and property of the whole community from aggression, legislatures have ceased to be altogether unmindful of the life, liberty, and happiness of the offenders themselves. The divine attribute of mercy has been brought to temper justice, and sanguinary laws are found to be as unnecessary as they are hateful. In this country, at the present moment, we can hardly perceive a trace of that fierce and savage spirit which dictated the ancient penal codes. The grand problem in criminal legislation is to preserve the peace and order of society, with the least possible exercise of severity. All punishment is in itself an evil; but as disobedience of the laws is a still greater evil, there is a point beyond which humanity cannot safely go; and many affect to fear that in this country that point has been passed; but I trust that such persons have not made due allowance for the natural tendency of good laws to protect themselves. As a general principle, it is only bad laws which require very severe sanctions. Let all the regulations of society be wise and equitable, and they will go far towards sustaining themselves by their own intrinsic excellence; whereas obedience to laws which are palpably unjust, can only be enforced by the most terrific denunciations. I do not, of course, mean to intimate that, in any possible condition of society, penal enactments can ever be entirely dispensed with; but merely to assert the proposition, that the better the government becomes, the fewer will be the occasions of punishing transgression; and the view we are about to take of criminal law in this country will prove that I am correct.

§ 187. The Nature of Crimes. A crime, in its legal acceptation, signifies any act to which the law attaches a penalty or punishment, without any reference to its moral turpitude. The terms offence and misdemeanor are nearly synonymous, though commonly used to indicate a less degree of enormity. To constitute a crime, there must first of all be an act; since a mere opinion or intention, however wrong in a moral or religious point of view, if not carried into an act, cannot be treated as a crime; although the criminality of the act when done, may be partially or entirely dependent upon the intention of the actor. This results from that entire freedom of the mind, which is a fundamental condition of human nature. And although it will be found that most of those acts which the law declares to be criminal, are likewise wicked or sinful in a moral or religious view, yet it is because of their ten