There is certainly no hardship in this so far as the common law is concerned, for it only punishes acts which are mala in se, or wrong in their very nature, and which are therefore contrary to the dictates of conscience. The hardship, if any, is in case of the statute law, where it prohibits an act which is only wrong because of the statute. Even here ignorance of the statute is no excuse for violating it.

Morality and Christianity

Morality and the teachings of Christianity have had an influence in the formation of the common law, as well as on legislators. They may be the cause of an act being prohibited by the common law or by statute, but an act is not a crime simply because it is immoral, nor because it is contrary to the doctrines of Christianity. It is true that an act is a crime if it shocks the moral sense of the community, and creates a public scandal, but this is because of the injury to the public. The same act which would be a crime if done in public is not punished at all if done in private, though it is none the less immoral. Some of the writers on criminal law make the broad assertion that Christianity is a part of our common law, and there are statements to the same effect by some of the judges; but the assertion is too broad. No court in this country would punish a man because he does not believe in the doctrines of Christianity, or because he argues against the truth of Christianity. Our Constitution expressly declares that no man's religious liberty shall be interfered with, and a man is free in this country, as far as the law is concerned, to worship Mohammed or the sun, without being liable to punishment. The com

1 Bish. New Cr. Law, § 497; May, Cr. Law, § 43; Updegraph v. Com., 11 Serg. & R. (Pa.) 394; People v. Ruggles, 8 Johns. (N. Y.) 290, 5 Am. Dec. 335; Vidal v. Girard, 2 How. 127, 11 L. Ed. 205.

fort, the peace, and the morals of the community are protected by the common law, and it punishes acts which have a tendency to injure them, but it does not interfere with one's religious views. Disturbance of a church meeting is a common-law crime, but this is because of the breach of the public peace, and not because of the religious character of the meeting, for disturbance of an assemblage to argue against Christianity is equally a crime. A person may shut himself up in a room and blaspheme without being amenable to punishment; but, if he blasphemes in a public place, it is otherwise. This is not because of the sin, but because the blasphemy is a public nuisance, or because it tends to a breach of the public peace.10

No Common-Law Crimes against the United States

There are no common-law crimes against the United States, either within state limits or within territory within the exclusive jurisdiction of the United States. It can punish no offenses that have not been expressly defined, and made punishable by an act of Congress.11

101 Whart. Cr. Law, § 20, citing Cooley, Const. Lim. 472; 13 Alb. Law J. 366; 20 Alb. Law J. 265, 285; Donahoe v. Richards, 38 Me. 379, 61 Am. Dec. 256; Chapman v. Gillet, 2 Conn. 40; Lindenmuller v. People, 33 Barb. (N. Y.) 548; Com. v. Jeandell, 2 Grant Cas. (Pa.) 506; People v. Porter, 2 Parker, Cr. R. (N. Y.) 14; Bloom v. Richards, 2 Ohio St. 387; Board of Education of City of Cincinnati v. Minor, 23 Ohio St. 211, 13 Am. Rep. 233; State v. Pepper, 68 N. C. 259, 12 Am. Rep. 637. And see People v. Ruggles, 8 Johns. (N. Y.) 290, 5 Am. Dec. 335; Com. v. Kneeland, 20 Pick. (Mass.) 206. Post, p. 401. 11 U. S. v. Hudson, 7 Cranch, 32, 3 L. Ed. 259; U. S. v. Eaton, 144 U. S. 677, 12 Sup. Ct. 764, 36 L. Ed. 591; 1 Kent, Comm. 331. See, also, post, p. 491 et seq.

STATUTES

5. The state Legislatures can punish any act unless restricted by the state or federal Constitution.

6. The United States Congress has no power to declare and punish crimes except such as is derived from the federal Constitution.

Statutory Crimes

In addition to crimes at common law, there are statutory crimes; that is, acts declared criminal by express enactments of the lawmaking power. After the Legislature expressly prohibits an act, and makes it a crime, there is no longer any test of public policy to be applied. The Legislature has presumably enacted the law for the public good, and the courts cannot look further into its propriety than to ascertain whether the Legislature had the power to pass it.12

Same-Power of the State Legislatures

The Legislatures of the different states have the inherent power to prohibit and punish any act, provided they do not violate the restrictions of the state and federal Constitutions.

Same-Power of the United States Congress

The United States Congress also has power to a certain extent to define and punish crimes, but it has only such power as is expressly or by implication conferred by the

12 Com. v. Waite, 11 Allen (Mass.) 264, 87 Am. Dec. 711; Parker 7. State ex rel. Powell, 132 Ind. 419, 31 N. E. 1114.

federal Constitution.13 Unlike the state Legislatures, it has no inherent power.14

Same-The Powers Conferred on Congress by the Constitution

The Constitution gives Congress the power to regulate commerce with foreign nations and between the several states; 15 to provide for the punishment of counterfeiting the securities and current coin of the United States; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; 16 to make rules for the government and regulation of the land and naval forces; to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States; to exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the Legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings; and, finally, to make all

18 Post, p. 491.

14 U. S. v. Hudson, 7 Cranch, 32, 3 L. Ed. 259; U. S. v. Coolidge, 1 Wheat. 415, 4 L. Ed. 124.

15 This provision prevents the states from passing any penal statute interfering with commerce. State v. Pratt, 59 Vt. 590, 9 Atl. 556; In re Kimmel (D. C.) 41 Fed. 775; Ex parte Thomas, 71 Cal. 204, 12 Pac. 53; Com. v. Gardner, 133 Pa. 284, 19 Atl. 550, 7 L. R. A. 666, 19 Am. St. Rep. 645; Territory v. Evans, 2 Idaho (Hasb.) 658, 23 Pac. 115, 7 L. R. A. 288; In re Rebman (C. C.) 41 Fed. 867; Minnesota v. Barber, 136 U. S. 313, 10 Sup. Ct. 862, 34 L. Ed. 455; Ex parte Kieffer (C. C.) 40 Fed. 399.

16 Congress may punish, as an offense against the law of nations, counterfeiting in United States of notes of foreign banks. U. S. v. Arjona, 120 U. S. 479, 7 Sup. Ct. 628, 30 L. Ed. 728.

laws which shall be necessary and proper for carrying into execution the powers given it, and all other powers, vested by the Constitution in the government of the United States, or in any department or officer thereof.1 Congress is also given power to enforce, by appropriate legislation, the prohibition against slavery or involuntary servitude in the United States,18 and to punish treason.1o

Same-Express Restrictions of the Federal Constitution

To give the student a general idea of the constitutional provisions bearing on the criminal law, including questions of procedure, it will be well to show the restrictions laid down by the Constitution. They do not apply, however, to the states, except where it is so expressed.20 Thus, it is provided that the trial of all crimes, except in cases of impeachment, shall be by jury, and shall be held in the state where the crime was committed.21 The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by oath or affirmation, and describing the place to be searched and the persons or things to be seized.22 No person can be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in certain cases; nor shall any person be subject, for the same offense, to be twice put in jeopardy of life or limb; nor shall he be compelled in any criminal case to be a witness against himself, nor be deprived of life,

17 Const. U. S. art. 1, § 8. 19 Const. U. S. art. 3, § 3.

18 Const. U. S. Amend. art. 13.

20 Eilenbecker v. District Court, 134 U. S. 31, 10 Sup. Ct. 424, 33

L Ed. 801; Boyd v. Ellis, 11 Iowa, 97.

21 Const. U. S. art. 3, § 2.

22 Const. U. S. Amend. art. 4.