arrested the judgment.
Morsell, J.,was of opinion that an attempt to commit an
offence, created by statute, which was not an offence at common law, is not indictable.
Thruston, J.The following remarks are rather an answer to the point made and attempted to be sustained by the Attorney for the United States, than an opinion on the indictment itself. I came into court after the indictment was read, and did not hear it; but the two positions stated at the head of the following opinion, were taken by Mr. Key, and as they involved considerations of great importance, I wrote, (with little time for deliberation, and without the means of consulting books,) the suggestions which are stated below.
The United States v. Haney Hedley, (otherwise Washington Henning.) Indictment at common law, for attempting or offering to sell a free colored boy as a slave.
The Attorney for the United States endeavored to support this indictment, on a motion to arrest the judgment by the traverser’s counsel, on two grounds.
1. That every attempt or offer to commit any crime or misdemeanor at common law, or by statute, is an indictable offence.
2. That the act itself was, per se, an indictable offence, because it amounted to a common-law cheat or ff'aud.
As to the first position: Its universality, if carried out, would lead to great absurdities, such as neither the law nor common sense can tolerate, and, therefore, I cannot agree to it; but am of opinion that there is a rational limit to it, beyond which we ought not to go; and this limit is well defined by certain rules and principles, which, if attended to, will direct us into the path to be pursued; this limit embraces only those attempts, or offers, to *610violate laws which, if the attempt be carried into effect, would invade the very safeguards of social order, or lead to the utter subversion or corruption of our political institutions; among the most considerable of those violations, perhaps, we may class mere breaches of the peace. I mean actual breaches of the peace. Such is the tenderness of the law, from the earliest legal records, and its sensibility to any thing like breaches of the peace, that it has been cherished with uncommon solicitude, as far back as the history of our institutions goes; so that it is kept alive, and is universally inserted, or ingrafted, in every indictment, even where it would require great ingenuity to discover where the force and arms could be found in the setting out of the offence. Therefore, if this peace, this great and long-nourished panoply of our social happiness, be not only assailed, but attempted to be, by any overt, acts, it may be, probably, an indictable offence. So attempts to bribe a judge, or a member, of Congress, or an executive officer, to betray his duty and trust, might lead, if carried into effect, to the utter corruption of the fountain of justice, of legislation, and of the due administration of the laws ; and, therefore, the danger attending such an act, its ruinous consequences to society, are of such vital importance, that an attempt, even, to perpetrate such a crime, may reasonably afford just ground for an indictment; so of murder, robbery, arson, and, in short, every offence (to say nothing of their enormity) where the perpetration must necessarily be attended with a breach of the peace. I will not say that an attempt to commit some other offences denominated mala in se, might not be indictable; but I will take the converse of the rule, and boldly say, that there are infinite acts of moral fraud, of mala in se, which are not indictable, but remediable only by civil process. For my present argument, and as at present advised, I will take my stand on this tangible, visible, well-defined ground, that an attempt to commit any crime or misdemeanor, which, if carried into effect, would involve a breach of the peace, may be indictable. I mean an actual, not a mere technical breach of the peace; therefore the actual selling an unsound horse, or merchandise, under false representations, or any other private fraud, are not indictable offences ; why ? they are unattended with a breach of the pteace, are to no public detriment, and, therefore, to be redressed civililer only. But these are mala in se, and morally criminal. But it occurs to me that there are cases where the rule that I have laid down would find an exception, namely, “that an attempt to commit a crime, which if carried into effect must necessarily involve a breach of the peace, might be indictable.” To constitute a breach of the peace, there can be only two things necessary; either an actual battery, or an assault. Now we see *611every day indictments for both ; but I have never read of, heard of, or known an indictment for an attempt to commit an assault. Suppose a man were to threaten another that he would beat him, and make demonstrations to that effect, and is held back by others, so as to prevent an assault even, would this be indictable ? If so, out of the million of cases of assault and battery in the books, and in this Court, we should have heard of, read of, or actually witnessed such a prosecution. These considerations are applicable so far to common-law offences only. Next, as to an attempt, or offer, to violate a penal statute.
I endeavored to show to what absurdities this position would lead, if carried to the fullest extent. Instanced the case of attempting to sell a gill of whiskey without license; who can imagine such an attempt only, not carried into effect, would be indictable ? So in a multitude of parallel cases. There are laws to prevent the hunting of deer, or fishing at certain seasons. Suppose a man proposes to another, to go to hunt or fish in such seasons, and actually provides arms or nets, and they go part of the way and turn back, would this be indictable ? My reason and common sense forbid an affirmative reply.
The first position, then, of the Attorney of the United Stales, does not amount to a universal rule; it is too broad. Show me an universal rule of law, holding in all possible cases, and you will show me a phenomenon that my Lord Coke never dreamed of. I cannot see any distinction between an attempt to violate a penal statute, or to commit a common-law offence; if there be any, my reason is too obtuse to discover it. * I cannot discern what gives this dignity to a statutory penalty, or prohibition, which cannot be equally claimed by the good old common law. In fact, there is no difference; and the line of demarcation which I have drawn as to common-law offences, ought to be the fixed boundary between punishable and dispunishable attempts to violate penal statutes. Without repeating the class of cases which are indictable, and those which are not, I refer to the numerous specifications of those cases which I have set out in my consideration of them under the common law. Tim indictment before us, was for a fraud in attempting to sell a free negro as a slave, contrary to the provisions of the penitentiary law. The argument first stárted on the broad ground, that an .attempt to violate any penal statute was an indictable offence ; this, I think, I have answered sufficiently; such a broad assumption cannot be sustained.
Secondly, it was urged that the attempt to sell a free man for a slave, was a fraud at common law, and therefore indictable; but the multitude of eases, never yet contradicted, that a mere over*612reaching, or misrepresentation, in a private sale, is not an offence at common law, seems to me to furnish a clear refutation of this argument. It was then contended in the case in question, that false tokens were used, or false pretences. I heard of none, of nothing more than false representations, or assertions that the negro was free; it was precisely like all those offences, which, though morally wrong, were left entirely, for redress, to civil tribunals, and were not indictable; such as false warranty of a horse which proves unsound; selling wine of inferior quality, for wine of better quality : asserting a right to sell a horse, or other commodity, which turned out to be the property of another, el omne id genus ; but it was also urged, with much earnestness, that the case in question was one of great moral turpitude; this goes only to the degree of moral guilt, but does not vary the case from others just enumerated, and alluded to, as civil injuries only, but cannot be distinguished from them, as to its legal characteristics. But the transaction was said to be gross and flagrant turpitude and injustice, and deserved punishment; so it does, but it cannot be punished here. Our sympathies were appealed to in behalf of the poor negro; but we can have none to bestow; and if we had, perhaps a few drops might have fallen to the poor ignorant traverser who probably did not kqow his danger, and who, if the opinion of the Court had been against him, would have been doomed to a lot worse than slavery. Therefore it behooved us to reflect well before we decided.
It seems to me from this, and some other cases which I have remarked, during this court, that the sword of criminal justice is longer than it used to be; it sweeps over a larger space. Offenders have either multiplied astonishingly, or the scale of offences is unusually extended ; our grand juries are wielding it with a liberal hand. I did not hear the charge of the chief judge at the opening of the Court, and therefore cannot say whether they are acting within the scope of his instructions or not; but I must say, from the number of presentments, and the character of some of them, that there is scarcely a hole or a corner of the county, where offenders might skulk, that their inquisitorial eyes have not inspected, and dragged out the offenders to light. .This is as it should be, provided due regard be had, not to involve the innocent (innocent, I mean, in the eyes of the law,) with the guilty, which I confess it is not easy for gentlemenqnot skilled in the law, always to avoid. If all, or any large proportion of presentments and indictments made, and which probably will be made during this court, be sustained, they display a woful amount and increase of crime.
But to return to my subject. I am willing to lay down this rule, and without some rule we are afloat in an ocean of uncer*613tainty: “ that all attempts to commit an offence, which, if carried into execution, would go to corrupt the fountains of justice, of legislation, or the executive administration of the law; or, if perpetrated, would involve actual violence or breach of the peace, whether statutory or common-law offences, are indictable, otherwise not.”
We have adjudged that to incite another to commit an assault and battery, is indictable; this is the only case of the kind that I am aware of; and there I think we have gone to the utmost limit; but I look upon the inciting another to commit a breach of the peace, of more aggravated criminality than an attempt to break the peace one’s self. I hardly know how such a case can well be manifested; a man might, in a passion, say and threaten, that he would beat another, but is held back by friends and others present; or he might approach another in a threatening manner, and that other might have the heels of him, and run away. I should question much whether either of these demonstrations of hostility are indictable. We have not gone that far yet, and I shall think more of it when the case occurs.
Finally, the penitentiary law has provided for the case of attempting to sell a free man for a slave, and declared under what circumstances it shall be punishable; here we have all that is wanted, or deemed by the sovereign authority to be wanted ; and shall we legislate too on the same subject; and declare that an act or acts, not coming up to the statutory description of the offence, are punishablé ? I cannot, for it does not fall within my rule as I have before laid it down ; nor, in my opinion, within the sound principles of law; nay, I reserve to myself the privilege of considering even this rule a little further, and when a case occurs within it, shall deem myself at liberty to narrow it, if, after more reflection I shall think it right to do so. I have suggested it for the present, as safe to steer by, so far as it touches the case before us.