LAW CRIMINORD LIBRARY JOHN ROMAIN ROOD; Professor of Law, University of Michigan. § 1. Outline. This article will consist of the following topics: Part I. 1. The sources from which our criminal law is derived. 2. Of crimes in general: (A) the nature of a crime; (B) the essential intention; (C) the criminal act. 3. The parties to a crime. 4. Jurisdiction of crimes. Part II. Some rules concerning particular crimes considered in the following classes: 1. Crimes against the person. 2. Crimes against the habitation. 3. Crimes against property. 4. Crimes against the public peace and welfare (public morals, health, safety, and comfort). 5. Crimes against the administration of public justice and authority. 6. Treason and piracy. PART I. GENERAL PRINCIPLES. CHAPTER I. THE SOURCES FROM WHICH OUR CRIMINAL LAW IS .DERIVED. § 2. Sources of our criminal law in general. Our criminal law is derived from the following sources: 1. The criminal law of England as it existed at the time of the settlement of this country, which our forefathers ara said to have brought with them, the law of their mother country being esteemed by them their choicest possession; or, otherwise stated, they were subject to the law of their country and continued so subject when they moved to the new colony. 2. Parts of the English law have been deemed not applicable in this country, because not suitable nor adapted to our institutions and national ideals, wherein these differ from those of England. 3. Additions have been made to this law by customs that have grown up in this country, as a continuation of the growth of custom which was the origin of the law of England-the common law. 4. Further additions to our law have been made by statutes from time to time, enacted by the various legislatures for their several jurisdictions. To restate the above, the English law consisted of ancient universal custom plus the laws enacted by 2 Parliament. Our law consists of that ancient custom plus the old English statutes as the two existed at the time of the settlement of this country, less such parts as were foreign to our national ideals. To this original body of our criminal law we have since added by American customs, common law, and statutes; and these to a certain extent have also abrogated and displaced part of the law which we obtained from the mother country. § 3. Crimes against the United States. There are no common law crimes against the United States, because the United States government is a government of derivative powers. It has no powers except those expressly or impliedly given to the United States government by the several states in the Constitution of the United States. On the other hand, the states have all the powers which they have not given to the United States government by that Constitution, or are not by it forbidden to exercise, except as they are further restrained by their own particular state constitutions. The acts which were crimes at common law, therefore, are not crimes against the United States, unless made so by the Constitution or some act of Congress enacted in the exercise of powers given to Congress by the Constitution. Therefore an act which would be a crime at common law in England, or by a statute of England enacted before the settlement of this country, would be a crime against the state in which the act is committed and could be prosecuted in the courts of that state, unless the law had been changed there by its constitution or some statute. But such an act would not be a crime against the United States unless it had been made a crime by the Constitution of the United States or some valid act of Congress. For example, at the time of the trouble between the United States and France, in the administration of President Madison, a publisher of a paper in Connecticut printed an article in his paper charging that the President and Congress had secretly voted a tribute to Napoleon. For this act the publisher was indicted in the United States courts on a charge of criminal libel against the President and Congress. It was thought this was a crime against the United States because it might seriously affect the administration of the national government and the popular support of the government, and bring the national officers into general contempt and disrepute. The defendant denied the jurisdiction of the United States courts to entertain the prosecution because, admitting the act to be a criminal libel, it was not a crime against the United States, but a crime against the state in which the paper was printed, even though it might be injurious to the United States government. And his reason was that there are no common law crimes against the United States-no crimes except those which have been created by some valid act of Congress; and inasmuch as there was no act of Congress declaring it to be a crime against the United States to libel an officer of the government, therefore no crime against the United States was charged in the indictment. This defense was sustained by the United States Supreme Court. The court admitted that if the act was one which might endanger the efficient administration of the national government, Congress would have implied power to make that act a crime against the United States. But, inasmuch as Congress had not yet declared it criminal to libel the President, the act charged, if a crime at all, was a crime against the state where the paper was published, and not a crime against the United States (1). § 4. How the common law supplements acts of Congress on crimes. When Congress does enact that an act shall be a crime, that statute is read in the light of the pre-existing law. The whole common law can be invoked to ascertain the true meaning and effect of that statute. For example, when a man was charged with piracy as a crime against the United States, by virtue of the act of Congress of March 3, 1819, and was brought to trial in a United States court, he alleged in his defense that there was no act of Congress defining piracy. The judges of the circuit court in which he was brought to trial, being divided in opinion as to the validity of the defense, the question was certified to the United States Supreme Court, and Mr. Justice Story, speaking for the court, said: "The argument which has been urged in behalf of the prisoner is that Congress is bound to define in terms the offense of piracy, and is not at liberty to leave it to be ascertained by judicial interpretation. If the argument be well founded, it seems admitted by counsel that it equally applies to the act of Congress of 1790, Chap. 9, Sec. 8, which declares that robbery and murder committed on the high seas shall be deemed piracy... When the act of 1790 declares that any person who shall commit the crime of robbery or murder on the high seas (1) United States v. Hudson, 7 Cranch. 32. |
