The case of two wrongs

Nothing is right

In 1816, two men in Northampton, Massachusetts — Isaac Wheeler and John Russell — entered into a business deal.

3d man choiceOn 13 June 1816, Russell sign a promissory note, in which he agreed to pay Wheeler $381.06 on demand. And Wheeler delivered to Russell a quantity of shingles.

As with many business deals, things went sour, and Wheeler ended up suing Russell for non-payment. Russell complained about fraud and a bunch of other things, trying to get out of having to pay.

His argument in the Massachusetts high court in 1821 was primarily that Wheeler hadn’t strictly followed the procedures set out in chapter 15 of the Massachusetts Laws of 1783 — the shingles, the law said, should have been surveyed and valued in the town before they were sold — and so wasn’t entitled to sue on the contract.

And Wheeler’s defense to that argument was simple: if there was a problem with the contract at all, it was only malum prohibitum, not malum in se, and so he was entitled to collect his money.1

Yeah, right.

Why, oh why, do lawyers in our ancestors’ cases speak Latin (or Greek, or legal French) instead of English???2 And what in the world is this malum prohibitum or malum in se business?3

Clearly, they’re both wrongs of some kind, but what’s the difference?

It’s really a fairly simple distinction, but one that’s very important in the law, so you’ll come across it a lot in old court records (and sometimes recent ones too!). Here’s the deal.

There are some things that are not just wrong, but so wrong that nobody is even going to argue about them being wrong. Murder without provocation and not in self-defense comes to mind — the drive-by random type where there isn’t even an argument about justification. These are things that are “wrongs in themselves; acts morally wrong; offenses against conscience.”4 They are mala in se — wrongs in and of themselves (singular: malum in se).

Other examples of things that are mala in se:

• Arson5
• Burglary6
• Perjury7
• Rape8
• Robbery9

There aren’t too many people who’d think that anything on that list wasn’t wrong, and folks don’t need a law to tell them so.

And then there are things that are wrong only because the law says they’re wrong. They’re called mala prohibita — prohibited wrongs (singular: malum prohibitum). They’re defined as “prohibited wrongs or offenses; acts which are made offenses by positive laws, and prohibited as such.10

And we can all think of things that fall into that category:

• Exceeding a speed limit11
• Jaywalking12
• Littering13
• Overtime parking 14
• Running a stoplight15

The consequence of something being malum in se rather than malum prohibitum was usually the penalty: you do a lot more time — or face the death penalty — for murder or arson; for jaywalking or littering, it’s usually just a fine.

And there were and are other consequences too. Our ancestors could (and we can) be deported, stripped of public office, lose a license and much more anytime a wrong is considered malum in se, while there’d at least be an argument against that consequence if the act was only malum prohibitum.

On the civil side of things, it was different. That whole argument in Wheeler v. Russell — that if the contract was malum in se, the courts wouldn’t enforce it but if it was only malum prohibitum, then it might still be enforced?

Um… no: “No principle of law … is better settled, than that no action will lie upon a contract made in violation of a statute, or of a principle of the common law.”16


  1. Arguments of counsel, Wheeler v. Russell, 17 Mass. 258, 258-280 (1821).
  2. That’s a rhetorical question, by the way, but we can take it up in some blog post in the future…
  3. This has come up before. See Judy G. Russell, “Terms of the day: the malas,” The Legal Genealogist, posted 24 Oct 2013 ( : accessed 6 Jan 2014). But a couple of recent reader questions suggest it needs to be addressed in more detail.
  4. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 744, “mala in se.”
  5. See State v. Charles, 16 Minn. 474 (1871).
  6. See United States v. Barker, 514 F.2d 208 (D.C. Cir. 1975).
  7. See In re Anonymous, 1 F. Cas. 1032 (Cir. Pa. 1804).
  8. See Askew v. State, 118 So. 2d 219 (Fla. 1960).
  9. See People v. Chaplin, 8 A.D.2d 286 (N.Y. App. 1959).
  10. Black, A Dictionary of Law, 744, “mala prohibita.”
  11. See United States v. Bennitt, 72 M.J. 266, 269 (C.A.A.F. 2013).
  12. See Wooldridge v. Mounts, 199 Cal. App. 2d 620 (1962).
  13. See State ex rel. Argersinger v. Hamlin, 236 So. 2d 442 (Fla. 1970).
  14. See Kinney v. State, 927 P.2d 1289 (Alaska App. 1996) .
  15. See Kahaikupuna v. State, 109 Haw. 230 (2005).
  16. Wheeler v. Russell, 17 Mass. at 281.
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2 Responses to The case of two wrongs

  1. This post caught my eye almost immediately. You see, I lived in Northampton, Massachusetts for 20 years. In fact, in the district magistrates’s hearing room at the Hampshire County Courthouse one November day in 1990, it was determined that the amount of the fine for a right-turn-on-red traffic violation leading to the death of an infant child was only $120.00. So…I guess you could say that this was an instance of mala prohibita? A small cost for the loss of a life. That infant child was our daughter, Nichelle Rae Carter…and that is part of what I’ll be writing about for the 2014 Family History Writing Challenge.

    • Judy G. Russell says:

      As painful as that memory is — and I can’t imagine anything more painful — the right-on-red violation alone would have only been malum prohibitum, yes. Vehicular manslaughter (as it would have been in some other states) would have been a whole ‘nother kettle of fish.

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