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BIBLIOGRAPHY.

CHAPTER I.

SOURCES OF OUR CRIMINAL LAW.

§ 1. Constitutions, Statutes, Reports, and Treatises, 1.

SOURCES OF NATIONAL CRIMINAL LAW.

§ 2. Constitution, Statutes, and Decisions, 3.

SOURCES OF STATE CRIMINAL LAW.

§ 3. General Statement, 9.

§ 4. "Common Law of England and English Statutes Enacted before the Settlement," 9.

§ 5. "As is Suitable and Adapted to our Condition and Institutions," 11.

§ 6. "Supplemented and Amended by the Common Law and Customs that have Grown up in this Country," 14.

§ 7. "And by the Constitution and Statutes of the State," 17.

§ 8. "Except as Restrained by the United States Constitution," 19.

BIBLIOGRAPHY.

§ 1. The law of crimes is found in the constitutions and statutes of the state and nation, in the decisions of the courts on particular cases, and in the works of writers on the law.

The Constitution of the United States is the fundamental law of the land, paramount to all other statutes so far as it extends. All others must yield to it so far as they conflict. The acts of congress are likewise paramount so far as they are constitutional. Next in order, the state constitutions are paramount within the state, so far as they do not conflict with valid laws of the United States. Next in order of command, the state statutes control so far as not in conflict with any of the foregoing, and with these exceptions control and supplant ail prior statutes and decisions in conflict with them.

The Decisions of the Courts are supposed to indicate the law existing then and before, and to depend on the law then found to exist. But in fact the decisions mark the growth of the law, by applying it to new cases, thus forming precedents for all similar cases in the future. Within the same jurisdiction, the decisions of the courts of last resort are held to create a fixed rule for all similar cases, until overruled by a court of equal or greater authority (which rule is called the doctrine of stare decisis), or abrogated by legislative enactment. Outside of the same jurisdiction these decisions have a persuasive influence, depending on the good sense indicated by the decision, the force of the reasoning given to support it, the respect entertained for the court by the persons sought to be influenced by it, and by numerous other considerations. These Decisions are Reported or Published in various forms. The earlier English decisions are found in the Year Books, mixed with civil cases, covering the period from 20 Ed. 1 (1292) to near the

close of the reign of Hen. 8, and a few older records have been published recently from manuscripts in the British Museum. Likewise, cases on crown law after the period of the Year Books till now have generally been published with reports of civil cases, both in England and America. Howell's State Trials is a set of thirtyfour books, in which criminal cases exclusively are reported with great detail, arranged in chronological order and extending from the time of the conquest to 1820. Reports of criminal cases confined to brief statements of the facts, arguments, and law points decided, may be mentioned as follows: A thin quarto by John Kelyng, chief justice of the king's bench, first published in 1708, after the death of the writer; Leach's Crown Cases in two volumes, including decisions from 1730 to 1813; Russell and Ryan's Crown Cases in one volume, 1799 to 1824; Moody's Crown Cases in two volumes, 1824 to 1844; Denison's Crown Cases in two volumes, 1844 to 1852; Dearsly's Crown Cases, one volume, 1852-6; Dearsly & Bell's Crown Cases, one volume, 1856-8; Bell's Crown Cases, one volume, 1858-60; Leigh & Cave's Crown Cases, one volume; Law Reports Crown Cases Reserved, two volumes, 1865 to 1875; and Cox's Criminal Cases, beginning in 1843 and continuing to the present time. All of the above are English publications of English decisions. In America there are several collections of criminal cases published for use of the lawyer. Among these might be mentioned the American Criminal Cases (1878 current), Bennett & Hurd's Leading Criminal Cases (2 Vols., 1856), Green's Criminal Cases (2 Vols., 1875), and Lawson's Crimes and Defenses (1885, a collection of English and American decisions and annotations, arranged by topics, 5 Vols.). Among the cases selected for use of students in law schools may be mentioned: One volume of 983 pages by Prof. Joseph H. Beale, 1894; one volume of 461 pages by W. L. Clark (author of Clark's Criminal Law) 1895; republished without the notes as "Fisher's Cases" in 344 pages in 1895; one volume of 583 pages by Mr. W. H. Chaplin, in 1891, second ed. in 1896; one volume of 396 pages by Prof. J. C. Knowlton in 1902; and one volume of 983 pages by Prof. Wm. E. Mikell in 1903.

Works of Writers on the Law of crimes are numerous. Those of highest repute are Coke's Institute Concerning High Treason and other Pleas of the Crown, by Sir Edward Coke, 1644; Hale's History of the Pleas of the Crown, by Sir Matthew Hale, two volumes, 1680; Hawkins's Pleas of the Crown, two volumes, 1716; Foster's Crown Law, a collection of cases and commentaries by Justice Foster, one small volume, 1762; East's Pleas of the Crown, two volumes, 1803. All these have weight as authorities irrespective of the cases they cite to support their statements, and all of them contain brief reports of cases not otherwise published. Perhaps mention should be made, also, in the same connection, of Russell on Crimes, two volumes, and Archbold's Criminal Procedure, two volumes. The books on this subject most used by lawyers in practice,

aside from the encyclopedias and local books, are the writings of Mr. Joel Bishop, one on Criminal Law in two volumes, first published in one volume in 1856; one on Criminal Procedure in two volumes, first published in 1866; and one on Statutory Crimes in one volume, first published in 1873; and McClain's Criminal Law in two volumes, 1897, by Mr. Justice McClain of the Iowa supreme court, formerly dean of the law department of the Iowa state university. Of the briefer hand books on the subject, mention may be made of those by Clark, Clark & Marshall, Hawley & McGregor, and May.

We have two systems of criminal law in this country, one national, the other state.

SOURCES OF NATIONAL CRIMINAL LAW.

§ 2. There are no common law crimes against the nation. The United States courts have implied jurisdiction to try and punish all offenses that would interfere with their appointed business, such as disturbance of order in court or contempt of its proceedings.

They have jurisdiction of offenses made criminal by the constitution of the United States or acts of congress in pursuance of its express or implied powers under the constitution.

U. S. Const., Art. 1, § 8. Congress shall have power:

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3. To regulate commerce with foreign nations, and among the several states, and with the Indian tribes. # 6. To provide for the punishment of counterfeiting the securities and current coin of the United States. 7. To establish postoffices and post roads. * * 9. To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations. 17. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.

U. S. Const., Amend. 10. The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

(U. S. Sup. Ct., 1812.) Implied Jurisdiction of Courts and Power of Congress. Indictment for libel, in publishing that the president and congress of the United States had secretly voted tribute to Napoleon. Defendant demurred, and the case was certified here, the judges of the circuit being divided in opinion. JOHNSON, J. The only question which this case presents is, whether the circuit courts of the United States can exercise a common law jurisdiction

The powers of the general government

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in criminal cases. are made up of concessions from the several states. only ground on which it has ever been contended that this jurisdiction could be maintained is that, upon the formation of any political body, an implied power to preserve its own existence and promote the object of its creation, necessarily results to it.

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But if admitted as applicable to the state of things in this country, the consequence would not result from it which is here contended for. * The legislative authority of the union must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offense. Certain implied powers must necessarily result to our courts of justice from the nature of their institution. But jurisdiction of crimes against the state is not among these powers. To fine for contempt, imprison for contumacy, enforce the observance of order, etc., are powers which cannot be dispensed with in a court, because they are necessary to the exercise of all others. * ** ** Demurrer sustained. U. S. v. Hudson, 7 Cranch (11 U. S.) 32, C. 14, F. 42.

(U. S. Sup. Ct., 1820.) Jurisdiction of U. S. Courts.-What is Piracy? On indictment for piracy the jury found that Smith and others of the crew of a private armed vessel commissioned by Buenos Ayres (a colony at war with Spain) mutinied at Margaritta, seized another privateer commissioned by Artigas (another government at war with Spain), put to sea on a cruise, without any documents or commission whatever, and while so at sea committed the offense charged in the indictment, by plunder and robbery of the Spanish vessel therein named. The circuit court being divided on the question whether this be punishable under act of congress March 3, 1819, as piracy, certified the question to this court for decision. STORY, J. The act of congress upon which this indictment is founded provides, "that if any person or persons whatsoever, shall, upon the high seas, commit the crime of piracy, as defined by the law of nations, and such offender or offenders shall be brought into, or found in the United States, every such offender or offenders shall, upon conviction thereof, etc., be punished with death." The first point made at the bar is whether this enactment be a constitutional exercise of the authority delegated to congress upon the subject of piracies. The constitution declares that congress shall have power "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations. The argument which has been urged in behalf of the prisoner is, that congress is bound to define in terms the offense of piracy, and is not at liberty to leave it to be ascertained by judicial interpretation. If the argument be well founded, it seems admitted by counsel that it equally applies to act of congress, 1790, c. 9, 8, which declares that robbery and murder committed on the high seas shall be deemed piracy. When the act of

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