shall be deemed a pirate the crime is not less clearly ascertained than it would be by using the definition of the terms as they are found in our treatises of the common law. In fact, by such a reference, the definitions are necessarily included, as much as if they stood in the text of the act. In respect to murder, where 'malice afore thought' is of the essence of the offense, even if the common law definition were quoted in express terms, we should still be driven to deny that the definition was perfect, since the meaning of 'malice aforethought' would remain to be gathered from the common law. There would then be no end to our difficulty or our definitions, for each would involve some term which might still require some new explanation. Such a construction of the Constitution is therefore wholly inadmissible. To define piracy, in the sense of the Constitution, is merely to enumerate the crimes which shall constitute piracy; and this may be done either by a reference to crimes having a technical name and determinate extent, or by enumerating the acts in detail upon which the punishment is inflicted. It is next to be considered whether the crime of piracy is defined by the law of nations with reasonable certainty. What the law of nations on this subject is, may be ascertained by consulting the works of jurists writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law. . . . It is to be certified to the circuit court that upon the facts stated the case is piracy as defined by the law of nations, so as to

be punishable under the act of Congress of March 3, 1819" (2).

§ 5. Common law crimes against the states. In further exposition and illustration of the statement made above, that acts which were crimes in England at the common law are crimes against the state here, a case which arose in Massachusetts is quite instructive. One Warren was indicted for deceit, cheating, and fraud, in that he obtained fifty pairs of shoes on credit by falsely pretending that he had good credit, kept a store at Salem, and his name was Waterman. After conviction he moved to arrest judgment against him on the ground that the indictment charged no offense. The motion was granted because: 1. The defendant being alone, no conspiracy was charged. 2. There was no pretense that false weights or measures were used, which would make the act the common law crime of cheating. 3. No false tokens were used to obtain the credit, which would be punishable by the statute of 33 Henry VIII, c. 1, which is a part of our common law, having been enacted before the settlement of Massachusetts. The only ground for claiming that there was a false token was the fact that Warren had signed his name to a note for the price at the time of obtaining the shoes, and had signed "William Waterman"-which the court held was not a "false token." 4. The statute of 30 George II, c. 24, which makes obtaining goods by false pretenses indictable was not in force in Massachusetts, because it was enacted after the settlement of that colony. It is clear that if

(2) United States v. Smith, 5 Wheat. (18 U. S.) 153.

obtaining goods by false pretenses had been a crime at common law, or by an English statute enacted before the settlement of Massachusetts, or by any statute of Massachusetts enacted before the defendant obtained the goods, he could have been convicted of obtaining goods by false pretenses; for clearly his statement that his name was Waterman (designed to prevent his subsequent discovery) and that he kept a store in Salem (designed to induce a belief that he was worthy of credit) were false statements of fact which would constitute a false pretense under such statutes (3).

§ 6.

Common law not suitable to our institutions. As an example of a case in which an act which was a crime by the common law of England would not be criminal here, the reader is referred to that large group of cases in which the crime consisted of non-conformity to the established religion, which could not be law here, because we have no established church. An actual case might make the point clearer. Nancy James was convicted of being a common scold and was sentenced to be placed on a ducking stool and plunged three times in the river. She claimed that the judgment was illegal and appealed to the higher court, in which her contention was sustained, the court saying: "This sentence, we are informed, has created much ferment and excitement in the public mind. It is considered as a cruel, unusual, unnatural, and ludicrous judgment. But whatever prejudices may exist against it, still, if it be the law of the

(3) Commonwealth v. Warren, 6 Mass. 72.

land, the court must pronounce judgment for it. But as it is revolting to humanity, and is of that description which could only have been invented in an age of barbarism, we ought to be well persuaded that it is the appropriate judgment of the common law, or is inflicted. by some positive law; and that that common law, or statutory provision, has been adopted here, and is now in force... The sanguinary code of England could be no favorite with William Penn, and his followers, who fled from persecution. Cruel punishments were not likely to be introduced by a society who denied the right to touch the life of man, even for the most atrocious crime. For had they brought with them the whole body of the British criminal law, then we should have had the appeal of death, and the impious spectacle of trial by battle in a Quaker colony. . . . The common law punishment of ducking was not received nor embodied by usage so as to become a part of the common law of Pennsylvania. It was rejected, as not accommodated to the circumstances of the country, and against all the notions of punishment entertained by this primitive and humane community; and though they adopted the common law doctrines as to inferior offenses, yet they did not follow their punishments. One remarkable instance I will notice. A gross libel in England was sometimes punished by the pillory; I believe Mr. Prynne lost both his ears. Though the offense is the same here, yet the sentence is very different. It is not true that our ancestors brought with them all the common law offenses; for instance that of champerty and maintenance this court decided did

not exist here. . . . I am far from thinking this is an unbroken pillar of the common law, or that to remove this rubbish would impair a structure which no man can admire more than I do. But I must confess I am not so idolatrous a worshiper as to tie myself to the tail of this dung-cart of the common law” (4).

§ 7. Changes by statute of the state. As before intimated, changes by the statute of the state may be by making acts criminal which were not so before, by increasing the punishment, by making acts innocent which were criminal by the old law, etc.; and these changes may be made by express provision or clear implication. A case decided in Minnesota will illustrate this point. Defendant, being convicted of conspiracy to assault, appealed on the ground that a statute had abolished this common law offense. The court said: "That our statutes expressly abolish common law offenses is not pretended. A statute which is clearly repugnant to the common law must be held as repealing it, for the last expression of the legislative will must prevail. Or we may admit for the purposes of this case, that when a new statute covers the whole ground occupied by a previous one, or by the common law, it repeals by implication the prior law, though there is no repugnancy. Beyond this the authorities do not go in sustaining a repeal of the common law by implication. On the contrary it is well settled that where a statute does not expressly repeal or cover the whole ground occupied by the common law, it repeals only

(4) James v. Commonwealth, 12 S. & R. (Pa.) 220.