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thing done a misdemeanor, persons who procure it to be done, though not present, are considered as actually doing it.1 So in statutory treasons, says Mr. East, "he who rescues the traitor from prison, or suffers him voluntarily to escape from his lawful custody, though not expressly named in the statute, is yet a traitor by a necessary construction of law upon the act itself."2 This matter of treason, however, may stand on a different ground in this country.3

§ 83. And from the operation of various principles of the common law results the doctrine, that every statute carries with it so much of collateral right and remedy as will make its provisions effectual; or, as Lord Coke expresses it, "when the law granteth any thing to any one, that also is granted without which the thing itself cannot be."4 Thus the author

1 United States v. Morrow, 4 Wash. C. C. 733; The State v. Berham, 3 Hill, S. C. 90; Commonwealth v. Nichols, 10 Met. 259; Schmidt v. The State, 14 Misso. 137; The State v. Dow, 21 Vt. 484; post, § 264.

21 East P. C. 96.

Post, § 495-498.

↑ Oath before Justices, 12 Co. 130, 131. Fletcher, J., in the recent case of Heard v. Pierce, 8 Cush. 338, 345, stated the doctrine as follows: "When a general power is given, or duty enjoined, every particular power, necessary for the exercise of the one, or the performance of the other, is given by implication;" citing Foliamb's case, 5 Co. 115b; Miller v. Knox, 4 Bing. N. R. 574, 583; Overseers of Pittstown v. Overseers of Plattsburgh, 18 Johns. 407, 418; Field v. People, 2 Scam. 79; Witherspoon v. Dunlap, 1 McCord, 546. See also Cookson v. Lee, 23 Eng. L. & Eq. 400; The Protector v. Ashfield, Hardr. 62; 2 Inst. 306; 1 Kent Com. 464; The State v. Hawthorn, 9 Misso. 385; Stief v. Hart, 1 Comst. 20; Lockwood v. The State, 1 Cart. Ind. 161; People v. Hicks, 15 Barb. 153; Dewitt v. San Francisco, 2 Cal. 289. In Illinois, the like principle was applied to the construction of the State constitution. The doctrine laid down was, that, where this instrument gives a general power, or enjoins a duty, it also gives by implication every particular power, necessary for the exercise of the one or the performance of the other. But, on the other hand, if it gives also the means for the exercise of the power, those means, and no other, must be employed. Field v. People, 2 Scam. 79. The implied means, however, are never such as violate existing rights, or interfere with established relations. Commonwealth v. Downes, 24 Pick. 227. It has been held, that a power

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ity to punish for contempt is necessarily implied in the establishment of a judicial tribunal.1 And, where a statute gave the king's justices power "to take the oaths" of persons, it carried with it, by intendment, authority to issue their precept and bring the persons before them to be sworn.2 A grand jury, authorized by statute to make inquiry and presentment of offences, may require the officer in attendance to conduct before the court a witness who is disrespectful and refuses to be sworn, that he may be punished for the contempt; because this is essential to the exercise of the power expressly conferred.3

§ 84. Fifthly. The common law is both contracted and expanded by statutes. This proposition differs not essentially in principle from the propositions before laid down. It may be illustrated thus: since the law punishes every breach of public duty, sufficient in magnitude for its notice, as will more exactly appear in subsequent parts of this volume,— the consequence follows, that, if a statute newly creates a duty of a public nature, but prescribes no punishment for its violation, the party violating, while not indictable strictly under the statute, is so at common law,4-a doctrine, however, which.

granted to a court by statute to refer a case to arbitrators, does not so descend to the arbitrators as to qualify them to administer an oath. Reg. v. Hallett, 2 Den. C. C. 237, 4 Eng. L. & Eq. 570.


1 United States v. New Bedford Bridge, 1 Woodb. & M. 401; The State v. Johnson, 1 Brev. 155.

2 Oath before Justices, 12 Co. 130, 131; Dwar. Stat. 2d ed. 671.


Heard v. Pierce, 8 Cush. 338.

And see the State v. Blocker, 14 Ala.

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* Gearhart v. Dixon, 1 Barr, 224; Rex v. Wiggot, Comb. 205, 372; Rex v. Robinson, 2 Bur. 799, 803; United States v. Coolidge, 1 Gallis. 488; The State v. Fletcher, 5 N. H. 257; Rex v. Smith, 2 Doug. 441; Commonwealth v. Chapman, 13 Met. 68, 69; Rex v. De Beauvoir, 7 Car. & P. 17; Commonwealth v. Silsbee, 9 Mass. 417; The State v. Patton, 4 Ired. 16; Commonwealth v. Piper, 9 Leigh, 657; Reg. v. Price, 3 Per. & D. 421, 11 A. & E. 727, 4 Jur. 291; The State v. Morris Canal and Banking Co. 2 Zab. 537 ; Reg. v. Wyat, 1 Salk. 380, 2 Ld. Raym. 1189; Anonymous, 6 Mod. 96; Rex v. Sheffield Coal Company, 4 New Sess. Cas. 25, 14 Jur. 170, 19 Law J.,

we shall more minutely examine under another head.1 So it is, ordinarily, criminal at common law to attempt unsuccessfully to commit a substantive offence, whether felony or misdemeanor; therefore, as the number of substantive offences. is increased or diminished by statute, the number of indictable attempts is increased or diminished likewise.2

§ 85. Sixthly. Whatever is newly created by statute draws to itself the same qualities and incidents as if it had existed at the common law.3 This proposition is a sort of condensation of the foregoing propositions. Thus, if a new felony is created, or what before was a misdemeanor is elevated to a felony, those who are present aiding and assisting are principals, and other persons connected with the offence are accessories before or after, according to the rules of the common law. So if an offence which was felony is made treason, a crime having no accessories at common law, those who would have been accessories to the felony will be principals in the treason. And if a statute creates a new treason, it virtually and consequently makes the concealing of it

N. S., M. C. 44; Crouther's case, Cro. Eliz. 654; The State v. Commissioners, Walk. Miss. 368, and cases cited post, § 349.

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Rex v. Roderick, 7 Car. & P. 795; Rex v. Butler, 6 Car. & P. 368; Reg. v. Meredith, 8 Car. & P. 589; Rex v. Cartwright, Russ. & Ry. 106; post, § 85. And see Reg. v. Williams, 1 Den. C. C. 39.

The State v. Murdock, 9 Misso. 730; Rex v. Wyer, 1 Leach, 4th ed. 480, 2 East P. C. 753, 2 T. R. 77; The State v. Smith, 32 Maine, 369; The State v. Wright, 4 McCord, 358; Commonwealth v. Macomber, 3 Mass. 254; Commonwealth v. Barlow, 4 Mass. 439; Rex v. Potts, Russ. & Ry. 353; Troy's case, 1 Mod. 5, 6; Rex v. Gray, 7 Car. & P. 164; The State v. Bosse, 8 Rich. 276.

* Ante, § 82.

♪ 1 East P. C. 161, 176, 446; 2 East P. C. 511; Rex v. Soares, 2 East P. C. 974; Reg. v. Tracy, 6 Mod. 30, 32; Rex v. Whistler, Salk. 542, 11 Mod. 25, 29; Hughes v. The State, 12 Ala. 458; Rex v. Sadi, 1 Leach, 4th ed. 468, 2 East P. C. 748; Rex v. Gaze, Russ. & Ry. 384; Rex v. Bear, 2 Salk. 417, 418.

Reg. v. Tracy, 6 Mod. 30, 32; Reg. v. Whistler, 11 Mod. 25, 29; 1 East P. C. 93, 94, 96.

§ 86 misprison of treason,1 and the consenting to it treason.2 So, likewise, all the incidents of a misdemeanor by statute are the same as of a misdemeanor at the common law. And where an offence of any grade is newly constituted, an unsuccessful attempt to commit it is consequently indictable, as though it existed at the common law. Also the common law rule, that, if a thief stealing goods in one county carries them into another county, he may be indicted for the larceny in either county, applies as well to articles of which larceny may be committed only under statutes, as to the common law offence.5

§ 86. Seventhly. Statutes should be construed in all other respects, as far as possible, in harmony with their policy, and with the common law. Thus, never will a statute be interpreted, unless its express words require, to authorize a proceeding against a person without notice to him; or to em

11 East P. C. 140.

Eden Penal Law, 3d ed. 125; ante, § 82.

* Reg. v. Britton, 11 Q. B. 929, 947, 10 Jur. 1017, 1021; Hall v. The State, 3 Kelly, 18; People v. Brown, 16 Wend. 561.


The State v. Maner, 2 Hill, S. C. 453; ante, § 84.

'Commonwealth v. Simpson, 9 Met. 138

Ante, § 66.

'See 1 Kent Com. 464; Rex v. Peel, Russ. & Ry. 407; ante, § 76; People v. Goshen Turnpike, 11 Wend. 597; Rex v. John, 7 Car. & P. 324 ; Rex v. Ellis, 8 D. & R. 173; Palmer v. Cuyahoga Commissioners, 3 McLean, 226; Richardson v. Broughton, 3 Strob. 1; Wood v. Smith, 23 Vt. 706; People v. Mather, 4 Wend. 229, 255; The State v. Doon, R. M. Charl. 1; Rex v. Shukard, Russ. & Ry. 200; United States v. Pearce, 2 McLean, 14; Bump v. Commonwealth, 8 Met. 533; Hanway v. Boultbee, 4 Car. & P. 350, 1 Moody & R. 15; Reg. v. Hamilton, 1 Car. & K. 212; The State v. Cheatwood, 2 Hill, S. C. 459; Murphy v. The State, 1 Cart. Ind. 366.

* Mede v. Deputy Marshal, 1 Brock. 324; Reg v. Simpson, 10 Mod. 378, 380; The State v. Savannah, T. U. P. Charl. 235; Chase v. Hathaway, 14 Mass. 222, 224; Arthur v. The State, 22 Ala. 61. And see Innes v. Wylie, 1 Car. & K. 257, 263; Bigelow v. Stearns, 19 Johns. 39, 41; The State v. Stokes, Coxe, 392; Souter v. The Sea Witch, 1 Cal. 162. When a statute

brace offences committed beyond the territorial limits of the country; or to confer jurisdiction on courts established under another power, as, if it is a statute of the United States, to give authority to State tribunals; 2 or to bind the sovereign, or the sovereign State. It will not be taken, by implication, to abrogate the common law distinction between principal and accessory, or any other distinction already known in the law. If the enactment is in its nature declaratory of the common law, it will be construed as far as may

requires notice to be given, not mentioning how long it shall be in point of time, the meaning is, that it shall be reasonable notice. Burden v. Stein, 25 Ala. 455.

1 Commonwealth v. Green, 17 Mass. 515, 540; United States v. Bevans, 3 Wheat. 336; ante, § 66 c. See Rex v. Sawyer, 2 Car. & K. 101; United States v. Wiltberger, 5 Wheat. 76; United States v. Holmes, 5 Wheat. 412; Mitchell v. Tibbetts, 17 Pick. 298.

2 Houston v. Moore, 5 Wheat. 1, 42, 66; Matter of Bruni, 1 Barb. 187, 208.

Vin. Ab. Statutes, E. 10; United States v. Hewes, Crabbe, 307; Broom Leg. Max. 2d ed. 50; ante, § 66 c.

* The State v. Garland, 7 Ired. 48; The State v. Milburn, 9 Gill, 105. Therefore a statute of limitations does not run against a State, unless expressly named. Ante, § 66 c; Broom Leg. Max. 2d ed. 46; Lindsey v. Miller, 6 Pet. 666; The State v. Arledge, 2 Bailey, 401; Weatherhead v. Bledsoes, 2 Overt. 352; People v. Gilbert, 18 Johns. 227; State Treasurer v. Weeks, 4 Vt. 215; Stoughton v. Baker, 4 Mass. 522, 528; Nimmo v. Commonwealth, 4 Hen. & Munf. 57; Bagley v. Wallace, 16 S. & R. 245; Munshower v. Patton, 10 S. & R. 334; Commonwealth v. Baldwin, 1 Watts, 54; Wallace v. Minor, 6 Ohio, 366, 369; Wallace v. Minor, 7 Ohio, part 1, 249, 252. That statutes authorizing suits against the State are to be construed liberally, see The State v. Curran, 7 Eng. 321, 346.

The State v. Ricker, 29 Maine, 84; Commonwealth v. Knapp, 9 Pick. 496; Commonwealth v. Macomber, 3 Mass. 254; Commonwealth v. Barlow, 4 Mass. 439; ante, § 85.

• Drew v. Commonwealth, 1 Whart. 279; United States v. Wilson, Bald. 78; Rex v. Carlile, 3 B. & Ald. 161; Commonwealth v. Simpson, 9 Met. 138; 2 East P. C. 804; The State v. Absence, 4 Port. 397; Commonwealth v. Barlow, 4 Mass. 439; Commonwealth v. Newell, 7 Mass. 245; The State v. Butler, 3 McCord, 383; Rex v. Breeme, 1 Leach, 4th ed. 220, 2 East P. C. 1026; Rex v. Pearce, 2 Leach, 4th ed. 1046.

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