legalized, or rendered dispunishable, as not being offenses. They continue offenses there still, but their cognizance is transferred and assigned to the spiritual court, who punish according to the rules of the canon law. It cannot follow as a consequence that an offense which is common to both the law of England and this state, and is animadverted upon by the law of England and punished by the spiritual court there, shall escape the like animadversion of the law and punishment here, because we have not a spiritual court; but it rather follows, from analogy, that our county courts of pleas and quarter sessions have the jurisdiction in these matters, as we find that matters, the proper tribunal of which was the spiritual court in England, are in this state, when not repugnant to our Constitution and form of government, assigned to the county courts, as the probate of wills and testaments, the granting of letters of administration, etc."

The great majority of the authorities, however, hold that offenses cognizable only in the spiritual courts in England cannot be punished here except by statute.

CHAPTER II.

THE ELEMENTS OF CRIME.

SECTION 1.-UNION OF INTENT AND ACT.

YOES v. STATE.

(Supreme Court of Arkansas, 1848. 9 Ark. 42.)

Enos Yoes was indicted in Washington circuit court for an assault and battery upon James C. Hughes. He was tried on the plea of not guilty, at the May term, 1847, before Hon. Wm. W. Floyd, Judge, convicted, and fined $10.1

JOHNSON, C. J. The circuit court manifestly erred in giving the first instruction asked by the state. The instruction is that, if the jury believe from the evidence that the defendant went to the meetinghouse yard and called Hughes out for the purpose of having a difficulty with him, they should find him guilty. A crime or misdemeanor consists in a violation of public law, in the commission of which there must be a union or joint operation of act and intention or criminal negligence. See section 1 of chapter 44 of the Revised Statutes of 1837. The mere fact of going to a place with the intention of doing an unlawful act will not of itself subject the party to the punishment denounced against such act, unless he also carries his intention into effect. If the defendant below actually made an assault upon Hughes in pursuance of his preconceived and settled intention, then it was that the motives which induced him to go to the place where Hughes was might have been legitimately inquired into in aggravation of the fine, but could not under any state of case have furnished conclusive evidence of his guilt. No valid objection is perceived to the last instruction; but for the error in giving the first the judgment must be reversed.

1 The evidence and the charge of the court are omitted

SECTION 2.-OFFENSES AGAINST PUBLIC JUSTICE
AND AUTHORITY.

omil

ANONYMOUS.

(King's Bench, 1686. 3 Mod. 52.)

One was indicted for the drinking of an health to the pious memory of Stephen College, who was executed at Oxford for high treason. He was fined one thousand pounds, and had sentence to stand in the pillory, and was ordered to find sureties for his good behavior.1

REX v. DARBY.

(King's Bench, 1687. 3 Mod. 139.)

The defendant was indicted for speaking of scandalous words of Sir John Kerle, a justice of the peace, viz.: "Sir John Kerle is a buffle-headed fellow, and doth not understand law; he is not fit to talk law with me; I have baffled him, and he hath not done my client justice." This is a scandal upon the government, and it is as much as to say that the king hath appointed an ignorant man to be a justice of peace, for which an indictment will lie. And of that opinion was the whole court, and gave judgment accordingly.'

PENNSYLVANIA v. MORRISON.

(County Court of Allegheny, 1795. Add. 274.)

These men were indicted for having, on 18th August, 1794, unlawfully, riotously, and routously assembled together to disturb the peace, and in Market street, in Pittsburg, raised a pole or standard, called a liberty pole, in defiance of the laws of the state of Pennsylvania and of the United States, and as an indignity and insult to the Honorable James Ross, Jasper Yeates, and William Bradford, Esquires, commissioners on behalf of the United States of America, and the Honorable Thomas McKean and William Irwin, Esquires, commissioners on behalf of the state of Pennsylvania, to confer with the citizens of

1 See also, absolving impenitent traitors, Rex v. Cook, Comb. 382 (1696). Part of this case is omitted.

8 Accord: Anon., Comb. 46 (1688); Rex v. Collier, 1 Wils. 332 (1752). But see Reg. v. Wrightson, 11 Mod. 166 (1708); Rex v. Weltje, 2 Camp. 142 (1809).

the counties west of the Alleghany mountains, to the great disturbance of the peace, and to the ill example of others.1

PRESIDENT. Pole raising was a notorious symptom of disssatisfaction, and the exhibition of this, in the only part of the country where government was supposed to have strength, must have made an impression very unfavorable to the whole country, promoted violence in the people here, and induced force on the part of the government. Verdict-guilty, except as to White and McWilliams.

An information was granted by the court against the defendants, as justices of the peace for the borough of Penryn, for refusing to grant licenses to those publicans who voted against their recommendation of candidates for members of Parliament for that borough. It appeared that they had acted very grossly in this matter, having previously threatened to ruin these people, by not granting them licenses, in case they should vote against those candidates whose interests those justices themselves espoused, and afterwards actually refusing them licenses upon this account only. And Lord Mansfield declared that the court granted this information against the justices, not for the mere refusing to grant the licenses (which they had a discretion to grant or refuse, as they should see to be right and proper), but for the corrupt motive of such refusal, for their oppressive and unjust refusing to grant them, because the persons applying for them would not give their votes for members of Parliament as the justices would have had them.2

(Supreme Court of Pennsylvania, 1881. 97 Pa. 407.) PAXSON, J. The indictment against Anthony McHale contains three counts. In the first count it is charged that, "intending to procure a false count and return of the votes cast by the electors," etc., he did "make false and fraudulent entries in the books kept by the clerks at said election in said election district, which books are commonly known as the list of voters, of the names of divers persons,

1 Part of this case is omitted.

2 Accord: Commonwealth v. Alexander, 4 Hen. & M. (Va.) 522 (1808), corruption in office; Commonwealth v. Callaghan, 2 Va. Cas. 460 (1825), being intoxicated while in discharge of office.

Part of the opinion is omitted.

to wit, twenty-one persons, whose names are as follows," etc. The second count charges that, with like intent, he did "deposit, among the ballots cast at said election in said election district by the electors voting thereat, false and fraudulent ballots of a large number, to wit, twenty-one ballots," etc. The third count charges that, with like intent, he did, "with the connivance of the election officers holding said election, undertake and assume to count the ballots cast by the electors voting at said election in said election district, and did falsely, fraudulently, maliciously, and unlawfully make a false and fraudulent count of said ballots as to make it appear that two hundred and eleven votes were deposited for one Adolph W. Schalck for the office of district attorney, when in truth and in fact he did not receive more than one hundred and eighty-five votes," etc.

Some of these offenses, perhaps all of them, are indictable under the act of 1839 and its supplements, when committed by election. officers. The defendants were not election officers; at least, they were not indicted as such.

It must be conceded that offenses which strike at the purity and fairness of elections are of a grave character. Are they indictable at the common law? This is a serious, and at the same time comparatively new, question. In considering it, we have little in the way of authority to guide us.

It was assumed by the learned counsel for the defendants that an indictment will not lie at common law for such acts. In their printed argument they dismiss the subject with this brief remark: "Offenses against the election laws are unknown to the common law. They are purely and exclusively of statutory origin." It may safely be admitted that, if_the_question depends upon the fact whether a precise definition of this offense can be found in the text-books, or perhaps in the adjudged English cases, the law is with the defendants. This, however, would be a narrow view, and we must look beyond the cases and examine the principles upon which commonlaw offenses rest. It is not so much a question whether such_offenses have been so punished as whether they might have been. What is a common-law offense?

The highest authority upon this point is Blackstone. In chapter 13, vol. 4, of Sharswood's edition, it is thus defined: "The last species of offenses which especially affect the commonwealth are those against the public police or economy. By the public police and economy I mean the due regulation and domestic order of the kingdom, whereby the individuals of the state, like members of a wellgoverned family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations. This head of offenses must therefore be very miscellaneous, as it comprises all such crimes as especially affect public society, and are not comprehended under any of the four preceding series. These