that, whenever the thing done comes not within the mischief which evidently the statute was intended to suppress, though it comes within its words, the person doing the thing is not punishable. While, on the other hand, a prisoner may show that either the principal enactment, or an exceptional clause of it, is so unguardedly worded as to open an escape for him through the letter, his act being still a complete violation of its spirit. § 140. In favor therefore of defendants, criminal statutes are both contracted and expanded, First; they are contracted. We had occasion to notice, in the chapter before the last, how common law and statutory principles cut short one another.1 So likewise a thing may be excepted out of general words in a criminal statute as well as any other, for the reason that to include it would be contrary to the general spirit and policy of the law.2 Perhaps, under this head, might be embraced cases like those already alluded to, where a prohibition in general terms is held to apply only to wilful transgressions, it being a principle of the common law, that no one shall suffer criminally for an act in which his mind does not concur. In this way, too, the statutes against false pretences are greatly restrained in their operation; and indeed the books are full of illustrations of the same principle. And, generally, if the thing done is not within the intention of the lawmakers, it is not within the law, though within its letter. § 141. This doctrine is usually stated in terms somewhat 1 Ante, § 78, 80, 84. See ante, § 86. 3 Ante, § 80. See ante, § 81; also People v. Stetson, 4 Barb. 151; Rex v. Douglas, 1 Moody, 462; Rex v. Henderson, Car. & M. 328. See ante, § 76, 86, 111. And see Reg. v. Marner, Car. & M. 628; 2 East P. C. 703-706; Richardson v. Broughton, 3 Strob. 1. narrower than those last employed; in substance, that the case must come not only within the words of the statute, but within its reason and spirit, and the mischief it was intended to remedy. Thus, the act of congress, that "it shall not be lawful to import or bring, in any manner, into the United States or territories thereof, from any foreign kingdom, place, or country, any negro, mulatto, or person of color, with intent to hold, sell, or dispose of such negro, mulatto, or person of color as a slave, or to be held to service or labor," is not violated by conveying slaves from the United States to Europe, and thence back to the United States where they are again held in bondage; because the object of the law was to put an end to the slave-trade; and this case, therefore, though within its letter, is not within the mischief to be suppressed. So the sale of a free negro into slavery, with his own consent, under the collusive agreement between him and the seller to share the proceeds between the two, is not within a statute against "selling a free person for a slave, knowing the person so sold to be free."3 So if it is made penal to "entice or persuade any servant or slave to absent him or herself from his or her owner's service; or harbor or maintain, under any pretence whatever," such servant or 1 Haynes v. The State, 5 Humph. 120; Daggett v. The State, 4 Conn. 60; The State v. Sumner, 10 Vt. 587; Commonwealth v. Clark, 2 Ashm. 105. And see, for illustrations, besides the other cases referred to, Reg. v. Marner, Car. & M. 628; The State v. Boozer, 5 Strob. 21; The State v. Mahan, 2 Ala. 340; Rex v. Corry, 5 East, 372; The State v. Newbegin, 25 Maine, 500; The State v. Lane, 8 Ired. 256; Hancock v. Sturges, 13 Johns. 331; Preston v. Hunt, 7 Wend. 53; Richardson v. Broughton, 3 Strob. 1; The State v. Johnson, 1 Dev. 360; Rex v. Sharpe, 1 Moody, 125; Wood v. Smith, 23 Vt. 706; Commonwealth v. Slack, 19 Pick. 304; Wragg v. The State, 14 Ala. 492; United States v. Hiler, 1 Morris, 330; Rex v. Williams, 1 Leach, 4th ed. 529. Mercer v. Commonwealth, 2 Va. Cas. 144. But the consent of a boy eight years old will not excuse the offence. Davenport v. Commonwealth, 1 Leigh, 588. slave; one who takes another's slave under claim of property in himself, is not within the prohibition.1 And a man killing deer under a pretence of right is not within the English statutes against deer-stealing. Likewise a judicial sale is not embraced by the statutes against champerty,3 2 § 142. The principle under consideration finds frequent illustration in those statutes which visit with special consequences larceny committed in specified places; the general rule being, that such statutes apply only to things usually kept in the places, and under their protection; and to per: sons who come within the spirit of their provisions. Thus when Stat. 11 Will. 3, c. 3, took away clergy from "any person who, by night or day, shall, in any shop, warehouse, coach-house, or stable, privately and feloniously steal any goods of the value of five shillings or more, though such shop, &c., be not broken open, and though the owner or any other person be or be not in such shop,"-it was decided, that "the statute was made as a remedy for the owners of shops to preserve their own goods which might be left there by way of trade;" and therefore, that it did not apply where one had left his shirt in another's shop, to be sent to a third person to mend. So Stat. 12 Anne, c. 7, against stealing 1 Gordon v. Farquhar, Peck, 155. 2 Rex v. Speed, 1 Ld. Raym. 583, the judge observing: "The case is out of the intent of the act, but is plainly within its, words. The intent of the act was to punish rogues and vagabonds; and not to punish persons who by mistake in the execution of their trusts exceed what the law warrants. If the keeper of a walk gives leave to third persons to kill a deer; though this license does not give sufficient authority to the third person to kill it, yet it will not be an unlawful killing within the statute, because there is a color of right." See also post, § 145. Sims v. Cross, 10 Yerg. 460; Tuttle v. Jackson, 6 Wend. 213; Jackson v. Anderson, 4 Wend. 474; Hoyt v. Thompson, 1 Seld. 320; Vol. II. § 116. Anonymous, 8 Mod. 165; s. P., Rex v. Storer, 1 Leach, 4th ed. 334, 2 East P. C. 643; Rex v. Seas, 1 Leach, 4th ed. 304, 2 East P. C. 643. See Vol. II. § 776. goods "being in any dwelling-house," is not violated where one steals, in his own house, the goods of another;1 or where a wife does the same thing in her husband's house; 2 or where the larceny is of property found upon the person, though in a dwelling-house, but therefore not under its protection; or where the things stolen are such as are not usually deemed to be under the protection of the dwelling-house.* For similar reasons, an Alabama enactment providing a particular punishment for "every person who shall enter any dwelling-house" and commit larceny therein, was held not applicable to one who entered by the owner's permission, before entertaining the criminal intent. But the contrary was held under the Georgia statute; because, said the court, "larceny from the house is defined to be either the breaking or entering of any house with intent to steal; or, after breaking and entering said house, stealing therefrom any money or thing of value." 6 § 143. This doctrine, of excepting out of the operation of criminal statutes cases not within their spirit and true intent, 1 Rex v. Thompson, 1 Leach, 4th ed. 338, 2 East P. C. 644. But where a lodger invites a man into his room, and there steals his goods, this is within the statute. Seven judges against three, in Rex v. Taylor, Russ. & Ry. 418. * Rex v. Gould, 2 East P. C. 644, 1 Leach, 4th ed. 339, note. 8 Rex v. Campbell, 2 Leach, 4th ed. 564, 2 East P. C. 644; Rex v. Watson, 2 East, 680, 681; Rex v. Owen, 2 East P. C. 645, 2 Leach, 4th ed. 572. And see the State v. Chambers, 6 Ala. 855. A man went to bed with a prostitute, having put his watch in his hat on the table; she stole it while he was asleep; and this was held to be larceny from a dwelling-house, though, if he had been awake, the legal consequence might have been different. Reg. v. Hamilton, 8 Car. & P. 49. * 2 East P. C. 644, 680, 681. And see 2 East P. C. 647; Rex v. Rourke, Russ. & Ry. 386. But if the property is such as is usually under the protection of the house, and by mistake is left in the possession of the occupier under the supposition that it is for one of the persons in the house, the stealing of it will come within these statutes. Rex v. Carroll, 1 Moody, 89. The State v. Chambers, 6 Ala. 855. 'Berry v. The State, 10 Ga. 511. is highly beneficial. The law, as we have already seen,1 does not attempt to punish all wrongs. Therefore, though a case is really within the mischief of an act of the legislature, no, particular breach of the order of the law comes from permitting the offender to escape under the objection, that what he did is not within its words. But to punish one who has not violated its spirit and intent, merely because its words. are broad enough to cover the thing done in general terms, is to strike a blow at the root of our jurisprudence, as well as to commit a great wrong to the individual. Especially in this country, where emphatically the law emanates from the people; not always the whole people, many acts depending on bare majorities; there is no way in which a legislative enactment, good or bad, can be brought so effectually into disrepute, or be made the instrument of so much real injustice, as to construe it in disregard of the principle we are considering. When a statute comes into being under a divided public sentiment, the judges necessarily form their private opinions; and, if adverse to it, they are liable in fact, whatever they intend, to construe it so rigidly by the letter as to punish those whom its framers never meant to punish; and suffer to escape those whom, if they had followed more its spirit, they would have seen to be within its provisions. Clearly the legislature alone is to decide its own policy; and if what it does is within its general and constitutional powers,2 the judges have no right to interfere. But they are to concur judicially in the propriety of the statute; and administer it in its spirit, whatever be their individual opinions upon the legislative question. § 143 a. The courts, in following these views, are not chargeable with what is popularly termed judicial legislation. Their province is to administer all law, statutory and common, as they find it. They find, that the common law prescribes the rules just mentioned for the interpretation of the acts of the |