29. Offenses Affecting the Administration of the Government.

A number of offenses which cannot strictly be classed as offenses against the administration of justice, but which are very similar, and are governed by the same principles, may be designated as offenses against the administration of the government. Misconduct on the part of a public officer, if accompanied by fraud or corruption, is clearly a misdemeanor at common law.91 He may be guilty of a misdemeanor, even without fraud or corruption.92 Private citizens may also be punished at common law for acts preventing or obstructing the administration of the government, as for illegally voting at an election.93

30. Offenses against God and Religion.

Blackstone mentions a number of offenses which he classes as offenses against God and His holy religion, and which were punishable in England. These have been mentioned in another place. In this country, we have no offenses which can be called offenses against God and religion. Neither the United States nor the states undertake to interfere with a citizen's religious belief or religious practices, so long as his acts do not affect the other members of the community, so as to become common nuisances, or otherwise criminal.95

31. Offenses against the Law of Nations.

The law of nations "is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world, in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the

and corrupt the morals of youth, as well as others," and to their "manifest corruption and subversion," was indictable at common law.

91 Trial of Jones, 31 How. St. Tr. 251; Walsh v. People, 65 Ill. 58, 16 Am. Rep. 569, Beale's Cas. 128; post, § 434.

92 Com. v. Callaghan, 2 Va. Cas. 460, Beale's Cas. 116; Com. v. Alexander, 4 Hen. & M. (Va.) 522; post, § 434.

93 Com. v. Silsbee, 9 Mass. 417, Beale's Cas. 111; post, § 444.

observance of justice and good faith in that intercourse which must frequently occur between two or more independent states, and the individuals belonging to each."96 The law of nations is a part of the common law.97 The offenses against the law of nations noticed by the common law were (1) violation of safe conducts, (2) infringements of the rights of ambassadors, and (3) piracy, or robbery and depredation upon the high seas.

III. THE STATUTE LAW.

98

32. In General.-The statute law, as distinguished from the common or unwritten law, is the law expressly promulgated by the law-making power,-in England, by parliament; in the United States, by congress for the federal government and for the District of Columbia, by the legislatures or general assemblies for the states, and by congress and the territorial legislatures for the territories.

The power of the English parliament to punish acts as crimes is absolute.

The power of congress is such only as is conferred upon it, expressly or impliedly, by the constitution of the United States. The power of the state legislatures or general assemblies is absolute, except in so far as it is limited by the constitution of the United States, or of the state.

The power of a territorial legislature is such only as is conferred upon it by the organic act of the territory,—the act of congress by which the territory is created,-and acts supplemental thereto.

The Reason and Object of Statutes.-Both in England and in the United States, notwithstanding the common law, statutes

94 4 Bl. Comm. 42; ante, § 19.

95 Post, § 457.

96 4 Bl. Comm. 66.

97 4 Bl. Comm. 67; Respublica v. De Longchamps, 1 Dall. (Pa.) 111, Mikell's Cas. 33.

98 4 Bl. Comm. 68-73; post, §§ 482-485.

have been enacted from time to time punishing particular acts as crimes. There are various reasons for their enactment. Some statutes have been enacted to remedy or supply what was considered to be a defect in the common law, by punishing an act which was not regarded as a crime at common law, but which experience has shown to be so hurtful to the public as to require interference and punishment by the state. It was for this reason that statutes were enacted to punish embezzlement, and the obtaining of money or property by false pretenses, neither of which were regarded as crimes at common law.99 For the same reason, statutes have been enacted to punish as burglary or arson the breaking and entering, or the burning, of other houses and things than dwelling houses and outhouses within the curtilage or common inclosure, which were the only subjects of burglary and arson at common law.100

Other statutes have been enacted to remove doubt and uncertainty as to what was the common law, where the judges differed in opinion. Thus, eminent judges differed in opinion as to whether it was burglary at common law to enter a house with felonious intent, but without any breaking, and to break out, in order to escape. A statute was enacted in England at an early day, and has been followed in some of our states, declaring it to be burglary.101

Other statutes have been enacted merely to change the punishment imposed by the common law. Felonies, at common law, were almost invariably punished by death, but this has been very generally changed by statute as to all felonies except murder and rape, and in some states as to these. This was the reason for the statutes dividing murder into different degrees. All murder was punished by death at common law, but, under

99 See Rex v. Wheatly, 2 Burrow, 1125, 1 W. Bl. 273, Beale's Cas. 5. See ante, § 16; post, §§ 341, 350.

100 See post, § 400 et seq.

101 See post, § 404 (e).

these statutes, only murder in the first degree-that is, murder with actual malice, or express malice is so punished.102

Construction of Statutes.-It is often important to ascertain the reason for the enactment of a penal statute, because the reason and object of a statute is taken into consideration in construing it.103

33. Power of the State Legislatures.

In England there is no written constitution to impose restrictions upon the power of parliament. Its power to punish an act as a crime is absolute, and all the courts have to do is to construe its enactments and enforce them. It is different, however, in this country. The state legislatures, like the English parliament, have inherent power to declare acts criminal, and to punish the wrongdoer, but their power is not unlimited. It is restricted by the constitution of the United States, and by the state constitution, and no penal statute is valid if it is in violation of the provisions of either.104 Except for these limitations, the power of a state legislature is absolute. It may punish any act which, in its judgment, requires punishment, provided it violates no constitutional restriction, and its enactments must be enforced by the courts.1 The courts cannot re

102 See post, § 251.

103 See post, § 47 (c).

104 Post, § 36 et seq.

105

105 Powell v. Com., 114 Pa. 265, 7 Atl. 913, 127 U. S. 678; State v. Stephenson, 2 Bailey (S. C.) 334; Barker v. People, 3 Cow. (N. Y.) 686, 15 Am. Dec. 322, 326; Com. v. Evans, 132 Mass. 11; Com. v. Bearse, 132 Mass. 542, 42 Am. Rep. 450; State v. Addington, 77 Mo. 110; Com. v. Waite, 11 Allen (Mass.) 264, 87 Am. Dec. 711; State v. Smyth, 14 R. I. 100, 51 Am. Rep. 344; Morgan v. Nolte, 37 Ohio St. 23, 41 Am. Rep. 485. And see post, §§ 36-44.

It is competent for the legislative power to create new offenses, and it may extend common-law definitions of particular offenses, so as to punish acts not embraced in the common-law definitions. See People v. Most, 128 N. Y. 108, 27 N. E. 970; Rachels v. State, 51 Ga. 374, 276; State v. Sattley, 131 Mo. 464, 33 S. W. 41.

In a late New York case it was said: "The legislative power of the

view the discretion of the legislature, or pass upon the expediency, wisdom, or propriety of legislative action in matters within its powers.106

state, which, by the constitution, is vested in the senate and assembly, covers every subject which, in the distribution of the powers of government between the legislative, executive, and judicial departments, belongs, by practice or usage, in England or in this country, to the legislative department, except in so far as such power has been withheld or limited by the constitution itself, and subject, also, to such restrictions upon its exercise as may be found in the constitution of the United States. From this grant of legislative power springs the right of the legislature to enact a criminal code, to define what acts shall constitute a criminal offense, what penalty shall be inflicted upon offenders, and generally to enact all laws which the legislature shall deem expedient for the protection of public and private rights, and the prevention and punishment of public wrongs. The legislature may not declare that to be a crime which in its nature is and must be, under all circumstances, innocent, nor can it, in defining crimes, or in declaring their punishment, take away or impair any inalienable right secured by the constitution. But it may, acting within these limits, make acts criminal which before were innocent, and ordain punishment in future cases where before none could have been inflicted. This, in its nature, is a legislative power, which, by the constitution of the state, is committed to the discretion of the legislative body." Lawton v. Steele, 119 N. Y. 226, 23 N. E. 878, 16 Am. St. Rep. 813.

106 Per Allen, J., in People v. Albertson, 55 N. Y. 50, 54. And see State v. Addington, 77 Mo. 110; People v. Worden Grocer Co., 118 Mich. 604, 77 N. W. 315. See, also, post, § 36.

In People v. West, 106 N. Y. 293, 12 N. E. 610, 60 Am. Rep. 452, it was said: "It is not a good objection to a statute prohibiting a particular act, and making its commission a public offense, that the prohibited act was, before the statute, lawful or even innocent, and without any element of moral turpitude. It is the province of the legislature to determine, in the interest of the public, what shall be permitted or forbidden, and the statutes contain very many instances of acts prohibited, the criminality of which consists solely in the fact that they are prohibited, and not at all in their intrinsic quality. The unneces sary multiplication of mere statutory offenses is undoubtedly an evil, and the general interests are best promoted by allowing the largest practicable liberty of individual action, but nevertheless the justice and wisdom of penal legislation, and its extent within constitutional limits, is a matter resting in the judgment of the legislative branch of the government, with which courts cannot interfere."