Imágenes de páginas

statute, is guilty of no crime; because such is the rule of the common law, and in construction it restricts the statute. Yet in some instances of this sort he incurs a civil liability.' So,-

Outlawed plaintiff.- Where the old English doctrine of outlawry prevails, disqualifying the outlawed person to maintain an action, one may defend an information qui tam by showing that the plaintiff is outlawed, though the statute sued upon allows “any person” to inform.? And,

$133. In general,- all statutes, and more particularly criminal ones, are liable to be cut short in this way. Thus,

False pretenses. — However unqualified the enactments against cheating by false pretenses may be in their terms, numerous limitations, drawn from the reasons of the common law, as well as from considerations of their objects and purposes, incumber their practical application.'


$ 134. Doctrine defined. The doctrine of this sub-title is that, when the harmony of the legal system requires, statutes will be construed as exiended in their effects by the common law beyond their terms. The prior common law operates in the same way as a prior statute, explained in the sub-title before the last. For,

New interest and old law. - As once observed: “When an act of parliament creates a new interest, it shall be governed by the same law that like interests have been governed [by] before." And

New right or duty.- Rights and duties newly created by statute are, in the same way, construed as extended by the common law. Thus,i Crim. Law, I, SS 301-310, and par

2 Atkins v. Bayles, 2 Mod. 267. ticularly the note to & 303a; Myers 3 See P. v. Clough, 17 Wend. 351, c. S., 1 Conn. 502; Reg. v. Grasseley, [31 Am. D. 303;] Reg. v. Johnston, 2 2 Dy. 2106, pl. 25; Preston v. Hunt, Moody, 254; Com. v. Drew, 19 Pick. 7 Wend. 53; The Marianna Flora, 11 179. [Every false pretense is not Wheat. 1; Etheridge v. Cromwell, 8 within such statutes. Sumuer v. S., Wend. 629; U.S. v. Package of Wood, 10 Vt. 587, 33 Am. Dec. 219; Chapman Gilpin, 349. But see Reg. v. Wood- v. S., 2 Head, 42; Wallace v. S., 11 Lea row, 15 M. & W. 404; Attorney-Gen. (Tenn.), 542; S. v. Delay, 93 Md. 98; eral v. Lockwood, 9 M. & W. 378; Rothschild v. S., 13 Lea (Tenn.), 296. Rex v. Marsh, 4 D. & R. 260.

'Lane v. Cotton, 12 Mod. 472, 486.

Acting by agent. The act of a duly authorized agent being, by the common law, the principal's act,' if a statute commands or forbids one to do a thing, and his agent, authorized thereto, does or declines it, the case is within the statute, which, by construction, receives for the occasion the appendage of this common-law rule. And the like doctrine prevails in all analogous cases. For example,

Trading with slave. — Under the law of slavery, now abolished, if a statute made it criminal to trade with a slave without a permit from his master, a permit from the overseer, being the master's agent, was sufficient. But the rule was limited where the common law limits the powers of agents, who cannot act for themselves and their principals in the same transaction; therefore the overseer could not trade with the slave on a permit given by himself. And,

False pretenses.— Under the statutes against cheating by false pretenses, such pretense made to a clerk or salesman, and by him communicated to the employer, is a false pretense to the employer;' interpretation, it is perceived, adding the common-law rule to the statutory terms. Again,

§ 135. Principals of second degree.- By the common law, all persons present giving aid and comfort to another committing an offense, even a felony, are regarded as principals; that is, as in legal contemplation doing the deed. Therefore, if a statute makes the doing of a thing criminal, it includes, with the actual doer, persons who are present lending their countenance and aid. Thus,

1 Bishop, Con., S 1112; Crim. Pro., I, corporation cannot be held crimi. & 332.

nally responsible when in the hands 2 Hathaway v. Johnson, 55 N. Y. of a receiver. S. v. Wabash, 115 Ind. 93, (14 Am. R. 186;] Dorrity v. Rapp466, 17 N. E. R. 909, 1 L. R. A. 179; S. 72 N. Y. 307; Armstrong v. Cooley, 5 V. R. R. Co., 30 Vt. 108. A corporaGilman, 509; U. S. v. Voss, 1 Cranch, tion is indictable for keeping a disC. C. 101; U. S. v. Conner, 1 Cranch, orderly house. S. v. Passaic, 54 N. J. C. C. 102. [A corporation may be L. 260, 23 Atl. R. 680.] criminally responsible for the acts of v. Chandler, Strob. 266. See its agents. Com. v. New Bedford, 68 Reg. v. Nickless, 8 Car. & P. 757. Mass. 339; Ill. Cent. R. R. Co. v. P., 95 4 Com. v. Harley, 7 Met. 462; Com. Ill. 313; Com. v. Ass'n, 92 Ky. 197, 17 v. Call, 21 Pick. 515. S. W. R. 442; S. v. Morris, 23 N. J. L. 5 U. S. v. Wilson, Bald. 78, 103; Rex 360; Norris v. S., 25 Ohio St. 217, 18 v. Tattersal, 1 Russ. Crimes (30 Eng. Am. R. 291; L. & N. R. R. Co. v. S., ed.), 27; Rex v. Manning, 2 Comyns, 40 Tenn. 523, 75 Am. D. 778. But a 616; Reg. v. Simpson, Car. & M. 669;

Malicious shooting.- The English statute of 9 Geo. 1, ch. 22, $ 1, having made it felony for one to “wilfully and maliciously shoot at any person,” one who, using no fire-arms himself, stood

by encouraging his companion who shot, was held to be a principal offender. Likewise,

Felonious gaming.— Under the Tennessee act of 1820, not only the person who deals the cards at faro is guilty as a principal felon, but the owner of the funds and house, who receives the profits, and is present assisting, incurs the same degree of guilt.? The like doctrine, of extending the statute by the common law, is applied also to

$ 136. Misdemeanors.- Where a statute makes the doing of a thing misdemeanor, persons who procure it to be done, though not present, are by construction treated as actually doing it, such being the rule in common-law misdemeanors.' So,

Treason (Rescue Escape).- In statutory treasons, says East

, writing of the English law, "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 necessary construction of law upon the act itself,” _ å result which, as seen in another connection, is probably different under the special terms of our American constitutions and


[ocr errors]

$ 137. Right carrying remedy.- By the common law, Ubi jus, ibi remedium, there is for every right a remedy. Or, as Coke expresses it: “In every case where a man is wronged, or

, endamaged, he shall have remedy."? Or, in the words of Holt,

[ocr errors]

Rex v. Bear, 2 Salk. 417, 418; (Com. 21 Vt. 484; (U. S. v. White, 5 Cranch C.
V. Ahearn, 160 Mass. 300, 35 N. E R. C. 73; Kinnebrew v. S., 80 Ga. 232, 5

S. E. R. 56; S. v. De Boy, 117 N. C. 702,
Granger's Case, 1 East, P. C. 413; 23 S. E. R. 167; P. v. Lyon, 99 N. Y.
Rex v. Gibson, 1 East, P. C. 413; Rex 210, 1 N. E. R. 673; Engeman v. S., 54
t. Wells, 1 East, P. C. 414. And see N. J. L. 247, 23 Atl. R. 676; Atkins v.
Reg. v. Whittaker, 1 Den, C. C. 310; S., 95 Tenn. 474, 32 S. W. R. 391.]
Rex v. Franklyn, 1 Leach, 255. And 41 East, P. C. 96.
see Reg. v. Davis, 8 Car. & P. 759; 5 Crim. Law, I, SS 701-704
Reg. v. Williams, Car. & M. 259. 6 Broom, Leg. Max. (2d ed.) 146.

2 McGowan v. S., 9 Yerg. 184. “There is no wrong without a
.: U.S. v. Morrow, 4 Wash. C. C. 733; remedy." Johnstone v. Sutton, 1 T.
S. r. Berman, 3 Hill (S. C.), 90; Com. R. 511, 512.
1. Nichols, 10 Met. 259, [43 Am. D. 432]; 7 Co. Lit. 1976.
Schmidt v. 8., 14 Mo. 137; 8. v. Dow,

[ocr errors]


[ocr errors]

C. J.: “It is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal. Hence,

Statute effectual (Collateral right and remedy).- When the harmony of the law requires, the courts expand the statutes in construction by adding to them this common-law principle; resulting in the doctrine that every enactment carries with it so much of collateral right and remedy as will make its provisions effectual. This doctrine is equally traceable to necessity, the power whereof in our jurisprudence has already been explained in this chapter. In the words of Fletcher, J., following the maxim Quando aliquid mandatur, mandatur et omne per quod pervenitur ad illud, “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. Thus,

Contempt.-- The authority to punish for contempt is necessarily implied in the establishment of a judicial tribunal. So,


Ashby v. White, 2 Ld. Raym. 938, Witherspoon v. Dunlap, 1 McCord, 953.

546; (S. v. Burbridge, 24 Fla 112, 3 2 Bac. Abr., Statute, B.; Oath before S. R. 869. Whenever a statuto proJustices, 12 Co. 130, 131; Cookson v. hibits any matter of public grievance Lee, 23 Eng. L. & Eq. 400; The Pro- or commands a matter of public contector v. Ashfield, Hardr. 62; 2 Inst. venience, without enacting any pen306; 1 Kent, Com. 464; S. v. Haw- alty, those who violate its provisions thorn, 9 Mo. 389; Stief v. Hart, 1 may be prosecuted by indictment Comst. 20; Lockwood v. S., 1 Ind. and punished by fine. Keller v. S., 161; P. v. Hicks, 15 Barb. 153; De 11 Md. 525, 69 Am. D. 226; S. v. witt v. San Francisco, 2 Cal. 289; Fletcher, 5 N. H. 257.] Green v. New York, 2 Hilton, 203; 6 U. S. v. New Bedford Bridge, 1 Stearns v. Atlantic, etc. R. R. Co., 46 Woodb. & M. 401; S. v. Johnson, 1 Me. 95; S. v. Rover, 13 Nev. 17; Wil- Brev. 155; Crim. Law, II, & 243. [The braham v. Hampden, 11 Pick. 322; power to punish for contempt is in. Chase v. Rutland, 47 Vt. 393, 401; herent in superior courts of record Sturtevants v. Alton, 3 McLean, 393; whether created by statute or other P. v. Knapp, 42 Mich. 267, [36 Am. R. wise; but the power is usually held 438.]

not to extend to inferior courts 3 Ante, SS 124, 125.

Their powers to punish for contempt 4 Broom, Leg. Max. (2d ed.) 366; FO- are conferred by statute, not to be liamb's Case, 5 Co. 1156.

extended beyond this limit, and are 5 Heard v. Pierce, 8 Cush. 338, 345, usually confined to punishing for [54 Am. D. 757,) referring also to contempts in disobedience of pro Miller v. Knox, 4 Bing. N. C. 574, 583; cess, or to those committed in facie Pittstown v. Plattsburgh, 18 Johns. curiæ. Ex parte Robinson, 19 Wall. 407, 418; Field v. P., 2 Scam. 79; 505; Cartwright's Case, 114 Mass.


Court taking oaths.- 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. And –

Witness before grand jury.- A grand jury, authorized by statute to make inquiry and presentment of offenses, 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.?

Limit of doctrine.- The terms of this doctrine indicate its limit. If an adequate remedy for the statutory right is provided in the statute itself, there is no need for implication, and none will be made;: if an inadequate, the deficiency will be supplied by implication. What violates existing rights, or interferes with established relations, will not be adopted as implied. Nor will implication be carried beyond what is fairly required; as,

[ocr errors]

238; S. o. Galloway, 5 Coldw. 326, 98 ? Heard v. Pierce, 8 Cush. 338. And Am. D. 404; Rutherford v. Holmes, see S. v. Blocker, 14 Ala. 450; Crim. 66 N. Y. 368. Supervisors cannot com- Proc., I, SS 868, 869. mit witnesses for contempt. Blue's 3 Post, SS 249–253; Payne v. Bald. Case, 46 Mich. 268, 9 N. E. R. 41. The win, 3 Sm. & M. 661; Butler v. S., 6 legislative power to punish for con- Ind. 165; Com. 7 Howes, 15 Pick. tempt is limited to the grant by stat- 231; Weller v. Weyand, 2 Grant (Pa.), ute; it does not possess the common. 10; Morris Aqueduct 1. Jones, 7 law power of the English parliament. Vroom, 206; Sudbury Meadows v. P. r. Webb, 5 N. Y. Sup. 855. The Middlesex Canal, 23 Pick. 36; Dodge grand jury has no power to punish v. Essex, 3 Met. 380; Wiley v. Yale, 1 for contempt in disobedience of pro- Met. 553, 554; Elder v. Bemis, 2 Met. cess, but should report such matter 599, 604; Lang v. Scott, 1 Blackf. 405, to the court. Wyatt v. P., 17 Colo. [12 Am. D. 257;] Andover, etc. Turn252, 28 Pac. R. 961. A referee, in the pike v. Gould, 6 Mass. 40, [4 Am. D. absence of statute, should report the 80;] Franklin Glass Co. v. White, 14 contempt to the court. In re Hal- Mass. 286; Sturgeon v. S., 1 Blackf. dorn, 10 Mont. 222, 25 Pac. R. 101; 39; Journey v. S., 1 Mo. 428; Riddick Lafontaine v. Ass'n, 83 N. C. 132. A v. Governor, 1 Mo. 147; S. v. Cole, 2 special judge having jurisdiction and McCord, 117; Rising v. Dodge, 2 Duer, power to grant a restraining order 42; Bosworth v. Brand, 1 Dana, 377; has as incident thereto the power to James v. Atlantic Delaine Co., 11 punish as for contempt the disobedi. Bankr. Reg. 390; In re O'Connor, 48 ence thereof. Mowrer v. S., 107 Ind. Barb. 258. 539, 8 N. E. R. 561.]

4 Johnston v. Louisville, 11 Bush, 10ath before Justices, 12 Co. 130, 527. 131; Dwar. Stat. (2d ed.) 671.

5 Com. v. Downes, 24 Pick. 227.

« AnteriorContinuar »