2 Mass. 530

June, 1807

When a statute prohibiting an obstruction in a river imposes a pecuniary penalty on him who erects or continues it, and also enacts that it shall be considered and adjudged a common nuisance, an indictment upon such statute need not allege such obstruction to be a common nuisance.

The Court of Common Pleas, as successor to the Court of Sessions, has no jurisdiction of an offence created by statute, unless expressly given by the statute.

THE indictment in this case was found at the Court of General Sessions of the Peace for this county, May term, 1803. It alleges that there is a certain river or stream in this county, which empties itself into the River Kennebeck, called Sandy River, up and through which said Sandy River, salmon, shad, and alewives, have been wont to pass to the ponds adjacent, to cast their spawn, and which river ought by law to be free from all obstructions whatever; yet that the defendant, not ignorant of the premises, at Farmington, in said county, on the first day of June, 1801, with force and arms, built and erected a mill-dam across said Sandy River, and being owner and occupant thereof, the same hath continued to the present time, without making or providing a sufficient sluice or passage-way either through or round the said dam for the said fish to pass up, as by law he ought to have done. By reason whereof, the said fish have been, and still are, obstructed in their passing up the said river, “to the great injury of the public, in evil example to all others in like cases offending, against the peace and dignity of the commonwealth, and contrary to the form of the statute in such case made and provided.”

Upon not guilty pleaded at the Court of Common Pleas, [Note 1] he was convicted and sentenced, and appealed to this Court, where, at September term, 1805, he was again tried and found guilty.

After verdict, the defendant moved in arrest of judgment:--1. Because it is expressly declared and enacted, by the statute [Note 2] on which the indictment is founded, that an offence, similar to that charged in said indictment, shall be considered and adjudged to be a nuisance, and abated as such: whereas the offence charged in said indictment is not therein alleged to be a common,

Page 531

public, or other nuisance, nor is it stated that said milldam was erected or continued by the said J. K. to the public or common nuisance of all the citizens of said commonwealth, as it should have been. 2. Because, by law, the said indictment did not lie at said Court of General Sessions of the Peace, and said court last named had, by law, no jurisdiction of the offence charged in said indictment. 3. Because the said indictment is informal, and wholly insufficient.

Mellen, for the defendant, argued, as to the first cause of arrest, that this being no offence at common law, but created only by statute, which declares it to be a common nuisance, the indictment ought to have pursued the statute, and to have charged the offence ad commune nocumentum, &c. If the indictment does not bring the offence within the statute, no judgment can be rendered upon it.

As to the second point, he contended that the Sessions had no jurisdiction of this offence. The authority of that court depends wholly upon the statute of July 3, 1782, which empowers them to take cognizance of such offences as are cognizable by them at common law, or by the acts and laws of the legislature. Being a court created by statute, it is not competent for them to enlarge their jurisdiction by implication. No new offence created by statute is within their jurisdiction, unless expressly made cognizable by them. The reasoning of this Court in the case of the Commonwealth vs. Leach & Al. [Note 3] goes to this point, and there are many authorities to the same effect. [Note 4]

Page 532

The Solicitor-General conceded that an indictment for a nuisance at common law would not be good unless it alleged the offence to be to the common nuisance, &c.; but he apprehended that, where an offence was created by statute, as the defendant contended this to be, it was sufficient for the indictment to bring it within the words of the statute. The statute on which this indictment is grounded, besides declaring the dam a nuisance, has inflicted a pecuniary penalty on the person who erects it. The indictment may be sufficient to authorize the Court to inflict the penalty, even if this nice technical objection should avail to prevent the abatement of the nuisance.

As to the second point, the Solicitor-General said that the authority of the Court of Sessions depends not only on the statute creating that court, but also on the commissions of the justices, which uniformly include all trespasses. And accordingly, they have always taken cognizance of all crimes where an infamous punish ment did not follow conviction.

But this is, in truth, an offence at common law. The statute does no more than prescribe the punishment, without creating a new offence. The offence charged is the obstruction of a public highway through which all the citizens have a right to pass; and, it may be added, through which the public has a right that the fish should pass. The importance of passages for fish, as they furnish food to the inhabitants, and especially considered in relation to the marine fisheries, is such as should make it a part of our common law to prevent obstructions to them.

Mellen, in reply. The statute declaring this a common nuisance, the indictment ought so to have charged it. All the rules of the common law, respecting the prosecution of a crime, apply equally to a crime created by statute as to one which is such at the common law. If the indictment is to produce only a pecuniary penalty, still that penalty is to be inflicted for a nuisance, or for no offence at all.

The river, in the indictment, is not alleged to be a highway, nor is it said to be a navigable river; it is called a stream. If the facts charged constitute an offence at common law, independently

Page 533

of the statute, it must be granted that the legislature have labored, to say the least of it, very needlessly.

Curia. The defendant moves in arrest of judgment, on two grounds. The first is that the offence, as described in the indictment, is not alleged to be a common nuisance: the second is that the indictment is found at the Sessions, which has no jurisdiction of the offence.

The indictment is for an offence against a statute, passed in 1798, for the preservation of salmon, shad, and alewives, in the rivers in the counties of Lincoln and Cumberland. The first section, on which the indictment is framed, provides that no person shall erect any mill-dam, or, being interested or concerned therein, shall continue the same in, across, or upon, any river within the counties of Lincoln or Cumberland, in, up, or through, which salmon, shad, or alewives, or either of them, do or have been used to pass into the ponds or lakes, to cast their spawn, without providing a sufficient passage-way for the said fish to pass, in their season of going up and returning, on penalty of forfeiting a sum not exceeding 200 dollars, nor less than 20 dollars. And the said dam shall be considered and adjudged a common nuisance, and be abated as such.

On the last part of this section the defendant rests his first objection. On consideration, we are of opinion that this objection cannot prevail. It appears to be the true intent of this statute, not that the offence created by the first section should be described in the indictment as a common nuisance, but that, as part of the sentence on conviction, the mill-dam should be adjudged a common nuisance, on which judgment a writ may issue to abate it. It may be reasonably supposed that the pecuniary forfeiture might not be a penalty sufficient, in all cases, to induce the owner of the obstruction to remove it; provision is therefore made, not only that he shall be liable to a fine, but further, that the obstruction shall be adjudged a common nuisance, to be prostrated by the sheriff in execution of the judgment. If the construction which the defendant contends for

Page 534

should prevail, much inconvenience might result. Every dam not having a sufficient passage-way for fish being a common nuisance, any individuals, of their private authority, might, before indictment or conviction, undertake to remove it at any season of the year. Resistance would be the probable consequence, the certain effect of which would be a breach of the peace, attended with outrage and violence. [Note a]

The second objection, founded on the want of jurisdiction of the Sessions, has great weight.

The Court of Sessions, to whose jurisdiction in criminal causes the Court of Common Pleas has succeeded, by statute of March, 1804, was erected by the statute of July 3, 1782, and it is empowered to hear and determine all matters relating to the conservation of the peace, and such offences as are cognizable by them at common law, or by the acts of the legislature. If by common law, mentioned in this statute, be understood strictly the common law of England, those words cannot have any effect; for the Sessions, being created by statute, cannot have any jurisdiction but what was given it by some statute. But if these words import the common law of the commonwealth, they have an extensive operation and are easily understood. Our ancestors, when they came into this new world, claimed the common law as their birthright, and brought it with them, except such parts as were judged inapplicable to their new state and condition. The common law, thus claimed, was the common law of their native country, as it was amended or altered by English statutes in force at the time of their emigration. Those statutes were never reënacted in this country, but were considered as incorporated into the common law. Some few other English statutes, passed since the emigration, were adopted by our courts, and now have the authority of law derived from long practice. To these may be added some ancient usages, originating probably from laws passed by the legislature of the colony of the Massachusetts Bay, which were annulled by the repeal of the first charter, and, from the former practice of the colonial courts, accommodated to the habits and manners of the people.

Page 535

So much, therefore, of the common law of England, as our ancestors brought with them, and of the statutes then in force, amending or altering it,--such of the more recent statutes as have been since adopted in practice,-- and the ancient usages aforesaid,--may be considered as forming the body of the common law of Massachusetts, which has submitted to some alterations by the acts of the provincial and state legislatures, and by the provisions of our constitution.

From these principles we may conclude that, the Sessions in England having, at the time of the emigration, jurisdiction of all trespasses (except, perhaps, forgery and perjury; see 2 East's Rep. 18) which were offences against law when the statute of 34 Ed. 3, c. 1, was passed, giving the Sessions (among other things) the cognizance of all trespasses,--our Court of Common Pleas, as successor of the Sessions, has jurisdiction of the same trespasses by the common law of the commonwealth; and that it has jurisdiction of no other trespasses, unless derived expressly from some statute.

The offence of which the defendant is indicted is clearly not an offence at common law, but it is a new offence created by the statute on which this indictment is drawn;--as it is not supposed that there is any other statute by which the Sessions can have jurisdiction, the validity of the objection to judgment on this conviction must depend on the construction of the statute on which it was obtained. In the 12th section it is enacted, that all the fines imposed shall be recovered by presentment of the grand jury, or by action of debt. This section does not expressly, or by necessary implication, include the Sessions, for the words may be perfectly satisfied by a presentment of the grand jury to this Court. And the Sessions before the statute of March, 1804, or the Common Pleas since, not having jurisdiction at common law, nor by the express provisions of any statute, the

Judgment must be arrested.


[Note 1] By statute passed March 9, 1804, all the powers and duties of the Sessions, with certain exceptions, were transferred to the Courts of Common Pleas; and all indictments, &c., then pending in the Sessions were to be proceeded in and determined by the Courts of Common Pleas.

[Note 2] Passed March 1. 1798.--2 Mass. Special Laws, 2 6.

[Note 3] Mass. Rep. 59.

[Note 4] Bl. Com. 268.--2 Str. 1256, Rex vs. James & Al.--4 Com. Dig. tit. Justices of Peace, B. 1.--2 Salk. 680, Regina vs. Smith.--4 Mod. 379, Rex et Regina vs. Bugg??--5 Mod 149, Rex vs. Clough & Al.

[Note a] These dams are declared to be nuisances by the act, and are to be abated as such; and they are as much so before, as after, an adjudication. The evils mentioned, if any, must result from the law as it is, and not from any misconstruction of it.