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when and so far as directly and irreconcilably opposed in terms. See 1 Bishop Cr. Law (3d ed.) §§ 195-200, and cases cited in notes to said sections. Our statutes fall far short of covering the whole field of common law crimes. It is not pretended that conspiracy is by them made a crime, and we think it very clear that libel is not, and many other instances might be added. We think, therefore, that they do not by implication abolish these crimes" (5).

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§ 8. Restraints by the Constitution of the United States. Without attempting to enumerate all the cases in which constitutional restraints exist, the reader is reminded of the provision that "No state shall pass any bill of attainder, ex post facto law," etc. (6), and the provision in the Fourteenth Amendment that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of its laws" (7). The principal questions that have been argued in the courts on these provisions have related to the expression "due process of law." This provision is a paraphrase of the provision in the Magna Charta of King John, that: "No freeman shall be taken, or imprisoned, or disseised, or outlawed, or any ways destroyed; nor will we pass upon him, nor will we send

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upon him, unless by the lawful judgment of his peers or by the law of the land."

The state having enacted a law providing that the manufacture and sale of intoxicating liquors within the state, except for medical, scientific, and mechanical purposes, shall be a misdemeanor, and that all places where such liquors are manufactured, sold, or given away, are common nuisances, which should be abated as such, it was held that this law did not deprive the defendant of his property without due process of law within the meaning of the amendment above referred to, although he had invested his money in a plant to manufacture liquor before the law was enacted, and the beer, for the selling of which he was prosecuted, was made by him before the enactment of that law (8). Again it was held that a law forbidding the manufacture and sale of any oleaginous substitute for butter and declaring void all contracts made in violation of the law was a legitimate exercise of the police power of the state in the protection of health and prevention of fraud, and that the Fourteenth Amendment was not designed to interfere with the exercise of such powers by the state (9).

A law enacting that a person who should practice medicine or surgery without first obtaining a license from the state authorities to do so should be deemed guilty of a misdemeanor, was held not to infringe this amendment by abridging the privileges or immunities of citizens of the United States (10).

(8) Mugler v. Kansas, 123 U. S. 623.
(9) Powell v. Pennsylvania, 127 U. S. 678.

(10) People v. Phippin, 70 Mich. 6.

CHAPTER II.

CRIMES IN GENERAL. NATURE OF A CRIME.

§ 9. Crime defined. A crime is a wrong done to the whole public, and so flagrant in its nature that the state will take notice of it to prosecute the offender in a proceeding in its own name and punish him for his act.

§ 10. A wrong. From the statement that it is a wrong done, the reader must not suppose that it is essential to a crime that the act be in its nature essentially wicked, immoral, or actually injurious. On the contrary it may be wholly innocent, pious, and actually beneficial to the general public, and be criminal nevertheless. It is enough that the law-making body has declared the act to be criminal and punishable. An instance of an act innocent in itself and yet made criminal by statute, is the case already cited of prescribing medicine for the sick without previously obtaining a license from the state to do so. An instance of a pious act made punishable by statute is furnished by the case of the "peculiar people," whose faith is based on the General Epistle of St. James, c. 5, v. 14-15, as follows: "Is any sick among you? Let him call for the elders of the church; and let them pray over him, anointing him with oil in the name of the Lord; and the prayer of faith shall save the sick; and the Lord shall raise him up; and if he have committed sins, they shall be forgiven him." Because of this pious

faith, these people think it is a manifestation of lack of faith to call a physician, and therefore wicked. After a law had been enacted, making it a misdemeanor not to call a physician in certain malignant diseases named, a Ichild of the defendant was taken with one of the diseases mentioned, and he merely called in a woman of his sect, who prayed over the child and anointed it with oil, until it died. When he was indicted for violation of the statute, and alleged his religious scruples against calling a physician, this was held to be no excuse (1). In another case, which came before the Supreme Court of the United States, the defendant was indicted for bigamy in violation of the statute; to which he replied that he was a Mormon in faith, and a part of his religion was that it was his duty to marry as many women as he could support; but these facts were held to be no excuse (2).

If the criminal act is done it is none the less punishable because no injury actually resulted in the particular case. For example, it would be no defense to a charge of offering a bribe, that it was not accepted.

§ 11. Moral wrongs. People often say that this or that is a crime, because they think it is wicked or injurious. But it is not the wickedness or injuriousness of the act that makes it criminal. It may be very wicked to be disrespectful to our parents and superiors, not to pay our honest debts, to destroy our own property, and so forth, but it is not on that account criminal unless it has been declared punishable by statute or decision of

(1) Regina v. Downes, 13 Cox Cr. Cas. 111.

(2) Reynolds v. U. S., 98 U. S. 145.

the courts. Yet if the court sees in it a positive injury to the public, a criminal prosecution may be sustained, though no statute nor prior decision can be found declaring it criminal. A prosecution for using obscene language in public was sustained, though no prior decision or statute on the point could be found. The court said: "If the case stated in the indictment falls within the operation of clear, well defined, and well established principles of law, is it to be urged against the maintenance of this prosecution that no similar case has heretofore occurred, calling for the like application of such principles? Surely not at this day." (3)

§ 12. Must be criminal at the time. An act cannot be punished as a crime by reason of any statute enacted after the act charged was done, nor unless it continues to be the law at the time of the trial, judgment, and punishment. On indictment for disinterring a dead body, judgment against the defendant was arrested on motion after verdict; and the reason was thus stated by Chief Justice Shaw: "If the law ceases to operate by its own limitation or by repeal, at any time before judgment, no judgment can be given. Hence, it is usual, in every repealing law, to make it operate prospectively only, and to insert a saving clause preventing the operation of the repeal and continuing the repealed law in force as to all pending prosecutions, and often as to all violations. of the existing law already committed. These principles settle the present case. By the statute of 1830, c. 57, § 6, that of 1814 was repealed without any saving clause. The act charged upon the defendants as an offense was

(3) Bell v. State, 1 Swan (31 Tenn.) 42.

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