to civil. In Ohio, however, contrary to the doctrine elsewhere, the court "decided, that the common law, although in force in this State in all civil cases, could not be resorted to for the punishment of crimes and misdemeanors." 2 And, in Indiana, by statute, "crimes and misdemeanors shall be defined, and the punishment thereof fixed, by statutes of this State, and not otherwise." So in Florida and Missouri there are legislative enactments less broad, yet still restricting, to a limited fine and imprisonment, the right to punish for common law offences. How it is of common law offences against the national United States government, we have already seen.5

3

§ 45 a. In Scotland, the doctrine, that the common law of the country embraces the criminal as well as the civil department, is held in a very clear and just light. There, the courts will not listen to the objection of a defendant, that the thing alleged against him is not laid down either in any statute or in any decision of the courts, as a crime."

1 Ante, § 11; The State v. Danforth, 3 Conn. 12; The State v. Rollins, 8 N. H. 550; The State v. Counsil, Harper, 53; Commonwealth v. Newell, 7 Mass. 245; The State v. Bosse, 8 Rich. 276; Brockway v. People, 2 Hill, N. Y. 558, 562; Chandler v. The State, 2 Texas, 305, 309; Grinder v. The State, 2 Texas, 338. But in Texas it is so by statute. Hartley Dig. Laws,

120.

Key v. Vattier, 1 Ohio, 132; Vanvalkenburg v. The State, 11 Ohio, 404. See Young v. The State, 6 Ohio, 435, 438; Bloom v. Richards, 2 Ohio State, 387.

Ind. R. S. of 1852, p. 352.

• Thompson Dig. Fla. Laws, 21; Missouri R. S. of 1845, c. 100, § 2. In Florida it is also provided, that no person shall be "punished by the said common law, when there is an existing provision by the statutes of the State on the subject." Thompson Dig. ut supra.

5 Ante, § 16-22.

In a recent case, the Lord Justice-Clerk remarked: "It is of no consequence that the charge is now made for the first time. For there are numerous instances, in which crimes which had never before been the subject of prosecution, have been found cognizable by the common law of this country. On this point I refer particularly to the authority of Baron Hume (Vol. I. p. 12). It appears that that learned author had not been sufficiently

§ 45 b. A judge might well hesitate to convict of crime a person doing a thing neither expressly prohibited by the stat utes of the State, nor defined by an exact decision in the common law, if the thing were not such as every enlightened conscience pronounces wrong. But where the evil is apparent to the evil-doer; and, at the same time, the thing comes within the reasons of the common law of crime as already expounded by the tribunals; he will be greatly wanting in a just appreciation of the duties of his office, if he suffers the offender to escape on the simple allegation, that another offender, in the same thing, is not shown by the prosecutor to have been convicted.1

§ 45 c. There is no question, however, that great difficulty attends many cases where the act is clearly a crime against natural law, yet not well defined in judicial decision. Under such circumstances the safer way is for the courts to refuse conviction, unless the act falls plainly within some principle

aware of the power of the common law in England; for, after stating, that 'It seems to be held in England that no court has power to take cognizance of any new offence, although highly pernicious, and approaching very nearly to others which have been prohibited, until some statute has declared it to be a crime, and assigned a punishment,' he continues — With us the maxim is directly the reverse; that our supreme criminal court have an inherent power, as such, competently to punish (with the exception of life and limb) every act which is obviously of a criminal nature, though it be such which in time past has never been the subject of prosecution."" And Lord Moncreiff added: "We are all agreed, that the present case is the first example of an offence of this nature having been made the subject of an indictment in this court. But that will go but a very little way to settle the question, unless we were also agreed, that that circumstance must be sufficient to render it incompetent for the public prosecutor so to proceed against it. Now it cannot, in my apprehension, be maintained, that nothing is an indictable offence by the common law of Scotland, which has not been indicted before. Indeed, to hold this to be law, seems to me to be impossible, without running the whole theory of the criminal system into absurdity. For the common law itself must have had a beginning." Greenhuff's case, 2 Swinton, 236, 259, 264, 265.

either recognized already, or deducible from the decided cases. Because, so frequent are the sessions of our legislative assemblies, that little danger will arise from any new form of wickedness before the legislative power can interfere. Still no suggestion which an author can make will so much aid a judge on this subject, as a thorough reading of, and a deep meditation upon, the criminal law in all its branches, and in all its spirit.

The Ecclesiastical Criminal Law.

§ 46. We have seen, that the common law which our forefathers brought to this country from England includes not only the principles administered there in what are technically termed the courts of common law, but in all other judicial tribunals.1 Thus, though we have no ecclesiastical judicatories, yet so much of the law administered in them as relates to the civil affairs of men,2 and is applicable to our situation, has come to us as a part of our common law; and, by legislative enactments, it is found variously distributed among such courts as the people of this country have seen fit to establish. Now there are criminal offences cognizable by the ecclesiastical judges; yet not criminal in precisely the sense of the general common law, but rather as injuring the souls of men. The punishment is ordinarily to pay the costs of prosecution, and do penance; the usual penance being to make confession in the vestry of the church, unless the offender gets the consent of the judge to receive, in commutation, "an oblation of a sum of money for pious uses," 5 or

1 Ante, § 11.

Bishop Mar. & Div. § 16 et seq.

Palmer v. Tijou, 2 Add. Ec. 196, 203; Griffiths v. Reed, 1 Hag. Ec. 195, 210; Newbery v. Goodwin, 1 Phillim. 282, 286.

Coote Ec. Pract. 269, 272; Courtail v. Homfray, 2 Hag. Ec. 1; Blackmore v. Brider, 2 Phillim. 359, 362, note.

* 3 Burn Ec. Law, Phillim. ed., title Penance, 101; 2 Inst. 489.

1

unless the penalty is remitted on account of his ill health, or for some other cause.1 But obviously, in the absence both of ecclesiastical courts and an established religion, these offences and punishments do not exist in this country. And so it is held, that, although fornication and adultery are in England cognizable criminally under the ecclesiastical law,2 yet, in the absence of statutory enactments, they are not punishable in our common law tribunals, unless open and notorious, amounting to a public nuisance.3

§ 46 a. Still, though the ecclesiastical punishments and crimes exist not in form here, perhaps, as a question of principle, our courts should hold some acts criminal which in England are punishable only in the ecclesiastical. The ecclesiastical tribunals are regular courts of that country, as much as the civil; and, though their forms of procedure and their punishments differ from those established in the common law courts, the latter might well decline to pursue light offences over which the former exercised a correcting power. This view leaves open the question concerning each particular offence cognizable in England only in the ecclesiastical courts; it may, if this view is adopted, be indictable or not with us, according as it falls, within or without those boundaries of crime drawn by our general criminal law.

Martial and Military Law.

§ 47. Military law has been defined to be "a body of rules and ordinances prescribed by competent authority for the government of the military state, considered as a distinct

1 Coote Ec. Pract. 274; Chick v. Ramsdale, 1 Curt. Ec. 34, 37; Woods v. Woods, 2 Curt. Ec. 516, 529; Burgess v. Burgess, 1 Hag. Con. 384, 393. * 2 Burn Ec. Law, Phillim. ed., title Lewdness, 401; Wheatley v. Fowler, 2 Lee, 376; Coote Ec. Pract. 145.

The State v. Moore, 1 Swan, Tenn. 136; post, § 379; Vol. II. § 9 et

seq.

community," "1 and it is in a sense criminal law.2 It does not, however, come within the cognizance of a treatise on criminal law, according to the common understanding of the legal profession. Military law is, in the United States, chiefly statutory; but there is infused into it a common law, derived from the mother country, being the same there anciently administered in the court of chivalry, or of the constable and marshal. This tribunal, like the chancery and admiralty courts, proceeded after the manner of the civil law; which, as Hawkins well observes, "is as much the law of the land in such cases wherein it has been always used, as the common law is in others." 4 At present, both in England and the United States, the military law is administered in courts-martial.5 As we shall not traverse in these pages this field, we shall pause here to call to our minds two points concerning this law, as follows:

§ 48. First. Military law must not be blended, as it has sometimes been, with martial law, which is an entirely different thing. O'Brien says: "Martial law, as Blackstone truly remarks, is in fact no law. It is an expedient, resorted to in times of public danger, similar, in its effect, to the appointment of a dictator. The general, or other authority charged with the defence of a country, proclaims martial law. By so doing he places himself above all law. He abrogates or suspends, at his pleasure, the operation of the law of the land.

1 O'Brien Courts Martial, 26; The State v. Davis, 1 Southard, 311.

2 3 Greenl. Ev. § 469.

1 McArthur Courts Martial, 3d ed. 13, 18, 20.

* 2 Hawk. P. C., 6th ed., b. 2, c. 4, § 7, 11.

Concerning courts-martial, see Bell v. Tooley, 11 Ire. 605; Brooks v. Adams, 11 Pick. 441; Mills v. Martin, 19 Johns. 7; Wise v. Withers, 3 Cranch, 331; Contested Election of Brigadier-General, 1 Strob. 190; Coffin v. Wilbour, 7 Pick. 149; Opinion of the Justices, 3 Cush. 586; White v. McBride, 4 Bibb, 61; Alden v. Fitts, 25 Maine, 488; Hall v. Howd, 10 Conn. 514; Wilkes v. Dinsman, 7 How. U. S. 89, 123; The State v. Davis, 1 Southard, 311; 3 Greenl. Ev. § 470.

1 McArthur Courts Martial, 3d ed. 32; 3 Greenl. Ev. § 468.