will then be indictable, either at the common law or under the old statute, as the case may be, leaving the court to inflict the punishment ordained by the new;1 or under the new statute, at the election of the prosecutor.2 It was indeed ruled in an English nisi prius case,3 harmoniously with the doctrine apparently best sustained by authority, that, where the offence was originally created by a statute affixing to it a penalty, and a subsequent statute increased the penalty, the indictment must conclude against the form of the statutes, in the plural. But this is at most a mere technical rule of pleading, not resting well on principle; and, in this country, the question has been decided both ways.5 The true view seems to

penalty, all right to prosecute for a violation of the previous one is gone. Reg. v. Adams, Car. & M. 299.

1 Commonwealth v. Searle, 2 Binn. 332, 339; Williams v. Reg. 7 Q. B. 251; The State v. Wilbor, 1 R. I. 199; McCann v. The State, 13 Sm. & M. 471; The State v. Thompson, 2 Strob. 12; Rex v. Berry, 1 Moody & R. 463 ; The State v. Williams, 2 Rich. 418.

Rex v. Dickinson, 1 Saund. Wms. Ed. 135; Rex v. Dixon, 10 Mod. 335, 337, Say. 226; Rex v. Urlyn, note, 2 Saund. Wms. Ed. 308; Rex v. Chatburn, 1 Moody, 403; Sir John Knight's case, 3 Mod. 117; Rex v. O'Brian, 7 Mod. 378, 379. See, however, Felix v. The State, 18 Ala. 720.

* Reg. v. Adams, Car. & M. 299.

* 1 Chit. Crim. Law, 2d Eng. Ed. 291, and Am. Notes; 2 Gab. Crim. Law, 246; Lee v. Clarke, 2 East, 333, 339; Rex v. West, Owen, 134.

That the singular form is sufficient, Strong v. The State, 1 Blackf. 193; The State v. Wilbor, 1 R. I. 199; The State v. Dayton, 3 Zab. 49; The State v. Berry, 4 Halst. 374; Butman's case, 8 Greenl. 113. That the plural form must be employed, The State v. Moses, 7 Blackf. 244, and King v. The State, 2 Cart. Ind. 523, the judges being apparently unaware of their previous decision in Strong v. The State; The State v. Cassel, 2 Har. & G. 407. See Kane v. People, 8 Wend. 203; United States v. Gibert, 2 Sumner, 19; Sears v. United States, 1 Gallis. 257, 259. In The State v. Pool, 2 Dev. 202, the majority of the judges held, that, where one statute creates an offence punishable by a penalty recoverable in an action civil in form, and another statute makes the offence indictable, the indictment must conclude against the form of the statutes, in the plural. But Henderson, C. J., dissented; observing, "I am inclined to believe that this is the rule; that, where it is necessary to have recourse to two or more statutes to show that the acts imputed as crimes are in fact so, that is, acts forbidden or duties enjoined, ... .. there both or all the statutes must be referred to. But it can

have been expressed by Lord Denman, thus: "It is the offence which is the subject of indictment, not the punishment;"1 and the doctrine is settled in both countries, that, if the offence is originally at common law, and the punishment is by statute, a conclusion at common law is sufficient.2 Looking at the matter of this section in the light of principle, the result is, that, since the punishment pertains to the procedure rather than to the prohibition, we may separate the two; and

not be said, that the defendant did an act contrary to the prohibitions of a statute, when the statute did not prohibit it; in fact, was silent in regard to it, and only prescribed the mode of prosecution, and the punishment on conviction. . . . . . . The defendant cannot be said to act contrary to a statute which prescribes nothing to be done, but only fixes the mode of proceeding against, and the measure of punishment to, those who have violated another." p. 207, 208. In the supreme court of Maine, Parris, J., drew the distinctions as follows: "Where one statute creates the offence, and another gives the penalty, it seems to be settled that an indictment must conclude against the form of the statutes. But if there be more than one statute concerning the same offence, and the first of them was never discontinued, and the later only qualify the method of proceeding upon the earlier, without altering the substance of its purview, it seems agreed that it is safe in an indictment on such a statute to conclude against the form of the statute. Where an offence is prohibited by several statutes, if only one is the foundation of the action, and the others are explanatory, it is sufficient to say, against the form of the statute.” Morrison v. Witham, 1 Fairf. 421, 425. 1 Reg. v. Williams, 14 Law J., N. s., M. C. 164.

2 Reg. v. Williams, supra; Rex v. Chatburn, 1 Moody, 403; Fuller v. The State, 1 Blackf. 63; Rex v. O'Brian, 7 Mod. 378, 379; Rex v. Jones, 1 Leach, 4th ed. 174; Reg. v. Bethell, 6 Mod. 17; The State v. Evans, 7 Gill & J. 290; Williams v. Reg. 10 Jur. 155; Russell v. Commonwealth, 7 S. & R. 489. See The State v. Flanigin, 5 Ala. 477; The State v. Jones, 5 Ala. 666; Rex v. Brown, 2 East P. C. 1007. In King v. The State, 2 Cart. Ind. 523, the court, after laying down the doctrine, that, where one statute defines the offence and another prescribes the punishment, the indictment must conclude in the plural, adds: "This is no doubt correct, for the obvious reason that neither statute would of itself support the prosecution." But the reader will notice, that in fact the former statute would have supported it, the same as the common law would have done, if the offence had existed at common law; for if the former statute had failed to prescribe any penalty, then, as we have seen, ante, § 84, the offence created by it would have been punishable at the common law.

pay no regard to the punishment either in framing the indictment, or in considering whether the prohibition in one statute is repealed by another statute. Always, in the criminal law, the indictment describes the offence upon the prohibition merely, not at all upon the punishment.

§ 96. It is clear, that, if a new statute provides a milder punishment than was before imposed for the same offence, and adopts no different remedy, it repeals so much of the old law as concerns the punishment.1 From some cases and dicta we might infer, that the converse is not true; but if, by a more recent enactment, a heavier punishment is established, a prisoner may be sentenced under either law. The better view however appears to be, that, where there is no change. in the character or circumstances of the offence, or nature of the remedy, a new law establishing any different punishment in amount, whether more or less, is so far inconsistent with and repeals the old. Where, by two sections of one statute, jurisdiction over the same offence was given to different courts, and different degrees of punishment were prescribed, it was held that only the milder degree could be ordered by either court.*

1 Henderson v. Sherborne, 2 M. & W. 236, 239; Smith v. The State, 1 Stew. 506; The State v. Thompson, 2 Strob. 12; The State v. Whitworth, 8 Port. 434; United States v. Jones, 3 Wash. C. C. 209; The State v. Upchurch, 9 Ired. 454; The State v. Ripley, 2 Brev. 300; Barton v. Watkins, 2 Hill, S. C. 674.

* Harrison v. Chiles, 3 Litt. 194; The State v. Taylor, 2 McCord, 483; Reg. v. Pugh, 6 Mod. 140, 141.

Nichols v. Squire, 5 Pick. 168; Perine v. Van Note, 1 Southard, 146; Buckallew v. Ackerman, 3 Halst. 48; Carter v. Hawley, Wright, 74; Commonwealth v. Kimball, 21 Pick. 373; Sir John Knight's case, 3 Mod. 117; Attorney-General v. Lockwood, 9 M. & W. 378, 391. See Clarke v. The State, 23 Missis. 261; The State v. Ward, 6 N. H. 529; Sullivan v. People, 15 Ill. 233; post, § 97-99. In Pennsylvania this has been so provided, substantially, by statute. Commonwealth v. Evans, 13 S. & R. 426; ante, § 92,

§ 97. Several concurrent remedies, " of a different nature,"1 carrying with them their respective penalties, may be provided for one offence; and each remedy may stand, penalty and all, without conflicting with the others.2 "Therefore keeping of swine in the city, &c., being a nuisance at common law, the prosecutor is at liberty either to proceed by way of indictment for the nuisance, or to take that more expeditious remedy which is given him by act of parliament, by sale of the swine." So a statute making it penal to "injure a milldam" does not take away the common law right to abate the nuisance, if the mill-dam becomes such. And a statute providing a specific method of abating a nuisance does not abrogate the common law method. The reason of these propositions is, that, since no repeal of a prior law is implied from a subsequent enactment, except in cases of repugnance, there can be no repeal in these circumstances; for there is no repugnance between provisions of differing natures, to cure a common evil. And the reason of some other of the foregoing propositions; as that, where there are two provisions differing not in nature from each other, one, for instance, visiting the offender with a heavier punishment of the same kind than the other, the later repeals the earlier, is because nature forbids two identical things, both things being in this case identical a certain way, to occupy the same space.

§ 98. What are remedies of different natures, within the rule just stated, we may not find it easy to lay down in a word; and perhaps the cases are not entirely harmonious.

1 Lord Abinger in Henderson v. Sherborne, 2 M. & W. 236, 239. 21 Mod. 34, note; Rex v. Jackson, Cowp. 297; Reg. v. Wigg, 2 Ld. Raym. 1163; Jennings v. Commonwealth, 17 Pick. 80; Crittenden v. Wilson, 5 Cow. 165; The State v. Rutledge, 8 Humph. 32; Hodges v. The State, 8 Ala. 55; Rex v. Moor, 2 Mod. 128; Simpson v. The State, 10 Yerg. 525; Pitman v. Commonwealth, 2 Rob. Va. 800; United States v. Halberstadt, Gilpin, 262; Renwick v. Morris, 3 Hill, N. Y. 621, 7 Hill, N. Y. 575. Reg. v. Wigg, 2 Ld. Raym. 1163.

The State v. Moffett, 1 Greene, Iowa, 247.

Wetmore v. Tracy, 14 Wend. 250.

The Vermont court held, that a statutory provision imposing a fine of seven dollars, to be recovered by complaint before a justice of the peace, for placing any obstruction in the highway, was merely cumulative, not interfering with the common law remedy by indictment; but whether it superseded the common law punishment, which is the question now under consideration, the court did not say.1 In New Jersey, a statute having prohibited a thing under a penalty of ten dollars, to be recovered in an action of debt by any person suing for it; and a subsequent statute having made the same thing indictable, and the offender liable to twenty dollars fine; the later provision was held to repeal the earlier. The ground of the last decision was, that it could not be presumed both penalties were to stand; and that, therefore, the last must prevail.2

§ 99. Perhaps some of the difficulties on this point may be obviated, by calling to mind certain principles to be considered more at large in subsequent parts of this volume. One is, that the law may, sometimes does, attach two or more separate penalties or punishments as a fine and a forfeiture, or a fine and imprisonment-to the same act, and even authorize them to be enforced in separate prosecutions.3 In such a case, it is of course no objection that the right to prosecute is derived from statutes passed at different times. Another principle is, that, to a considerable extent, offences are like successive circles of different sizes inclosed within one

1 The State v. Wilkinson, 2 Vt. 480. And see Salem Turnpike and Chelsea Bridge v. Hayes, 5 Cush. 458.

Buckallew v. Ackerman, 3 Halst. 48.

'People v. Stevens, 13 Wend. 341; Reg. v. White, 20 Eng. L. & Eq. 585; Blatchley v. Moser, 15 Wend. 215; post, § 691. The Illinois court held, that an officer is not indictable in Illinois for taking illegal fees, observing: "A remedy has been provided by the infliction of a penalty for such acts; but the modes of proceeding to enforce such penalty are entirely of a civil nature." Pankey v. People, 1 Scam. 80. Still there is doubt whether this Illinois doctrine is sound. A civil remedy in the nature of a penalty for the offence may well stand with a common law indictment, the two remedies being enforceable together.