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.3 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, § 332. 1 Bishop, Con., § 1112; Crim. Pro., I, corporation cannot be held criminally responsible when in the hands of a receiver. S. v. Wabash, 115 Ind. 466, 17 N. E. R. 909, 1 L. R. A. 179; S. v. R. R. Co., 30 Vt. 108. A corporation is indictable for keeping a disorderly house. S. v. Passaic, 54 N. J. L. 260, 23 Atl. R. 680.] 2 Hathaway v. Johnson, 55 N. Y. 93, [14 Am. R. 186;] Dorrity v. Rapp, 72 N. Y. 307; Armstrong v. Cooley, 5 Gilman, 509; U. S. v. Voss, 1 Cranch, C. C. 101; U. S. v. Conner, 1 Cranch, C. C. 102. [A corporation may be criminally responsible for the acts of its agents. Com. v. New Bedford, 68 Mass. 339; Ill. Cent. R. R. Co. v. P., 95 Ill. 313; Com. v. Ass'n, 92 Ky. 197, 17 S. W. R. 442; S. v. Morris, 23 N. J. L. 360; Norris v. S., 25 Ohio St. 217, 18 Am. R. 291; L. & N. R. R. Co. v. S., 40 Tenn. 523, 75 Am. D. 778. But a 3 S. v. Chandler, 2 Strob. 266. See Reg. v. Nickless, 8 Car. & P. 757. 4 Com. v. Harley, 7 Met. 462; Com. v. Call, 21 Pick. 515. 5 U. S. v. Wilson, Bald. 78, 103; Rex v. Tattersal, 1 Russ. Crimes (3d Eng. ed.), 27; Rex v. Manning, 2 Comyns, 616; Reg. v. Simpson, Car. & M. 669; Malicious shooting.- The English statute of 9 Geo. 1, ch. 22, 81, 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.1 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," — a result which, as seen in another connection, is probably different under the special terms of our American constitutions and statutes. § 137. Right carrying remedy. By the common law, Ubi jus, ibi remedium, there is for every right a remedy. Or, as expresses it: "In every case where a man is wronged, or endamaged, he shall have remedy." Or, in the words of Holt, Coke Rex v. Bear, 2 Salk. 417, 418; [Com. v. Ahearn, 160 Mass. 300, 35 N. E. R. 853] Granger's Case, 1 East, P. C. 413; Rex v. Gibson, 1 East, P. C. 413; Rex Wells, 1 East, P. C. 414. And see Reg. v. Whittaker, 1 Den. C. C. 310; Rex v. Franklyn, 1 Leach, 255. And see Reg. v. Davis, 8 Car. & P. 759; Reg. v. Williams, Car. & M. 259. 2 McGowan v. S., 9 Yerg. 184. U. S. v. Morrow, 4 Wash. C. C. 733; S.. Berman, 3 Hill (S. C.), 90; Com. . Nichols, 10 Met. 259, [43 Am. D. 432]; Schmidt v. S., 14 Mo. 137; S. v. Dow, 21 Vt. 484; [U. S. v. White, 5 Cranch C. 5 Crim. Law, I, §§ 701-704. 6 Broom, Leg. Max. (2d ed.) 146. "There is no wrong without a remedy." Johnstone v. Sutton, 1 T. R. 511, 512. 7 Co. Lit. 1976. 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, 1 Ashby v. White, 2 Ld. Raym. 938, Witherspoon v. Dunlap, 1 McCord, 953. 2 Bac. Abr., Statute, B.; Oath before Justices, 12 Co. 130, 131; Cookson v. Lee, 23 Eng. L. & Eq. 400; The Protector v. Ashfield, Hardr. 62; 2 Inst. 306; 1 Kent, Com. 464; S. v. Hawthorn, 9 Mo. 389; Stief v. Hart, 1 Comst. 20; Lockwood v. S., 1 Ind. 161; P. v. Hicks, 15 Barb. 153; Dewitt v. San Francisco, 2 Cal. 289; Green v. New York, 2 Hilton, 203; Stearns v. Atlantic, etc. R. R. Co., 46 Me. 95; S. v. Rover, 13 Nev. 17; Wilbraham v. Hampden, 11 Pick. 322; Chase v. Rutland, 47 Vt. 393, 401; Sturtevants v. Alton, 3 McLean, 393; P. v. Knapp, 42 Mich. 267, [36 Am. R. 438.] 3 Ante, §§ 124, 125. 546; [S. v. Burbridge, 24 Fla. 112, 3 S. R. 869. Whenever a statute prohibits any matter of public grievance or commands a matter of public convenience, without enacting any penalty, those who violate its provisions may be prosecuted by indictment and punished by fine. Keller v. S., 11 Md. 525, 69 Am. D. 226; S. v. Fletcher, 5 N. H. 257.] 6 U. S. v. New Bedford Bridge, 1 Woodb. & M. 401; S. v. Johnson, 1 Brev. 155; Crim. Law, II, § 243. [The power to punish for contempt is inherent in superior courts of record whether created by statute or other wise; but the power is usually held not to extend to inferior courts Their powers to punish for contemp 4 Broom, Leg. Max. (2d ed.) 366; Fo- are conferred by statute, not to be liamb's Case, 5 Co. 115b. 5 Heard v. Pierce, 8 Cush. 338, 345, [54 Am. D. 757,] referring also to Miller v. Knox, 4 Bing. N. C. 574, 583; Pittstown v. Plattsburgh, 18 Johns. 407, 418; Field v. P., 2 Scam. 79; extended beyond this limit, and are usually confined to punishing for contempts in disobedience of pro cess, or to those committed in facie curiæ. Ex parte Robinson, 19 Wall. 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.1 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;3 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,— 238; S. v. Galloway, 5 Coldw. 326, 98 Am. D. 404; Rutherford v. Holmes, 66 N. Y. 368. Supervisors cannot commit witnesses for contempt. Blue's Case, 46 Mich. 268, 9 N. E. R. 41. The legislative power to punish for contempt is limited to the grant by statute; it does not possess the commonlaw power of the English parliament. P. v. Webb, 5 N. Y. Sup. 855. The grand jury has no power to punish for contempt in disobedience of process, but should report such matter to the court. Wyatt v. P., 17 Colo. 252, 28 Pac. R. 961. A referee, in the absence of statute, should report the contempt to the court. In re Haldorn, 10 Mont. 222, 25 Pac. R. 101; Lafontaine v. Ass'n, 83 N. C. 132. A special judge having jurisdiction and power to grant a restraining order has as incident thereto the power to punish as for contempt the disobedience thereof. Mowrer v. S., 107 Ind. 539, 8 N. E. R. 561.] 2 Heard v. Pierce, 8 Cush. 338. And see S. v. Blocker, 14 Ala. 450; Crim. Proc., I, §§ 868, 869. 3 Post, 249-253; Payne v. Baldwin, 3 Sm. & M. 661; Butler v. S., 6 Ind. 165; Com. u. Howes, 15 Pick. 231; Weller v. Weyand, 2 Grant (Pa.), 10; Morris Aqueduct v. Jones, 7 Vroom, 206; Sudbury Meadows v. Middlesex Canal, 23 Pick. 36; Dodge v. Essex, 3 Met. 380; Wiley v. Yale, 1 Met. 553, 554; Elder v. Bemis, 2 Met. 599, 604; Lang v. Scott, 1 Black f. 405, [12 Am. D. 257;] Andover, etc. Turnpike v. Gould, 6 Mass. 40, [4 Am. D. 80;] Franklin Glass Co. v. White, 14 Mass. 286; Sturgeon v. S., 1 Blackf 39; Journey v. S., 1 Mo. 428; Riddick v. Governor, 1 Mo. 147; S. v. Cole, 2 McCord, 117; Rising v. Dodge, 2 Duer, 42; Bosworth v. Brand, 1 Dana, 377; James v. Atlantic Delaine Co., 11 Bankr. Reg. 390; In re O'Connor, 48 Barb. 258. 4 Johnston v. Louisville, 11 Bush, 1Oath before Justices, 12 Co. 130, 527. 131; Dwar. Stat. (2d ed.) 671. 5 Com. v. Downes, 24 Pick. 227. Arbitrators administering oath.-A power conferred on a court by statute to submit a case to arbitration has been held not so to descend to the arbitrators as to qualify them to administer an oath.1 Constitution.— This doctrine is not limited to statutes: it is applied equally to the interpretation of our written constitutions.2 VI. STATUTES ABRIDGING AND ENLARGING THE COMMON LAW. § 138. Doctrine defined. The doctrine of this sub-title is that, as by construction a statute will abridge or enlarge another statute in its effect, when the harmony of the legal system requires, so also it will the common law. Thus, Breach of statutory duty.— As explained in another connection, since the common law punishes every breach of public duty, sufficient in magnitude for its notice, if a statute newly creates a duty of this sort, yet prescribes no punishment for its violation, the violator, while not indictable strictly under the statute, is so at the common law. And, where the duty is private and not public, the private party injured by a breach of it will have his common-law action. So, Attempt. A mere unsuccessful attempt to commit a substantive crime being ordinarily indictable at the common law, 1 Reg. v. Hallett, 2 Den. C. C. 237, 4 1189; Anonymous, 6 Mod. 96; Rex v. Eng. L. & Eq. 570. 2 Field v. P., 2 Scam. 79. 3 Crim. Law, I, §§ 237, 238. 4 Gearhart v. Dixon, 1 Pa. St. 224; Rex v. Wiggot, Comb. 205, 372; Rex v. Robinson, 2 Bur. 799, 803; U. S. v. Coolidge, 1 Gallis. 488; S. v. Fletcher, 5 N. H. 257; Rex v. Smith, 2 Doug. 441; Com. v. Chapman, 13 Met. 68, 69; Rex v. De Beauvoir, 7 Car. & P. 17; Com. v. Silsbee, 9 Mass. 417; S. v. Patton, 4 Ire. 16; Com. v. Piper, 9 Leigh, 657; Reg. v. Price, 3 Per. & D. 421, 11 A. & E. 727, 4 Jur. 291; S. v. Morris Canal & Banking Co., 2 Zab. 537; Reg. v. Wyat, 1 Salk. 380; s. c. nom. Reg. v. Wyatt, 2 Ld. Raym. Sheffield Canal, 4 New Sess. Cas. 25, 14 Jur. 170; Crouther's Case, Cro. Eliz. 654; S. v. Adams, Walk. (Miss.) 368; Baker v. S., 57 Ind. 255. [Where a statute makes an act “unlawful,” and specifies no mode of proceeding, its violation is punishable according to the course of the common law. S. v. Parker, 91 N. C. 650; Keller v. S., 11 Md. 525, 69 Am. D. 226. 5 Crim. Law, I, §§ 237, 238; Com. Dig., Action upon Statute, A.; 2 Inst. 118; Tripp v. Grouner, 60 Ill. 174; Case of the Marshalsea, 10 Co. 63b, 756. 6 Crim. Law, I, §§ 435, 540, 604, 723 et seq. |