the common law, where the judges differed in opinion. Thus, eminent judges differed in opinion as to whether it was burglary at common law to enter a house with felonious intent, but without any breaking, and to break out, in order to escape. A statute was enacted in England at an early day, and has been followed in some of our states, declaring it to be burglary.101

Other statutes have been enacted merely to change the punishment imposed by the common law. Felonies, at common law, were almost invariably punished by death, but this has been very generally changed by statute as to all felonies except murder and rape, and in some states as to these. This was the reason for the statutes dividing murder into different degrees. All murder was punished by death at common law, but, under these statutes, only murder in the first degree-that is, murder with actual malice, or express malice --is so punished.102

Construction of Statutes.-It is often important to ascertain the reason for the enactment of a penal statute, because the reason

101 See post, § 404 (e). 102 See post, § 251.

and object of a statute is taken into consideration in construing it.103

33. Power of the State Legislatures.

In England there is no written constitution to impose restrictions upon the power of parliament. Its power to punish an act as a crime is absolute, and all the courts have to do is to construe its enactments and enforce them. It is different, however, in this country. The state legislatures, like the English parliament, have inherent power to declare acts criminal, and to punish the wrongdoer, but their power is not unlimited. It is restricted by the constitution of the United States, and by the state constitutiou, and no penal statute is valid if it is in violation of the provisions of either.104 Except for these limitations, the power of a state legislature is absolute. It may punish any act which, in its judgment, requires punishment, provided it violates no constitutional restriction, and its enactments must be enforced by the courts. 105 The courts cannot review the dis

103 See post, § 47 (c).

104 Post, § 36 et seq.

105 Powell v. Com., 114 Pa. St. 265, 127 U. S. 678; State v. Stephenson, 2 Bailey (S. C.) 334;

cretion of the legislature, or pass upon the

Barker v. People, 3 Cow. (N. Y.) 686, 15 Am. Dec. 322, 326; Com. v. Evans, 132 Mass. 11; Com. v. Bearse, 132 Mass. 542, 42 Am. Rep. 450; State v. Addington, 77 Mo. 110; Com. v. Waite, 11 Allen (Mass.) 264, 87 Am. Dec. 711; State v. Smyth, 14 R. I. 100, 51 Am. Rep. 344; Morgan v. Nolte, 37 Ohio St. 23, 41 Am. Rep. 485. And see post, §§ 36-44.

It is competent for the legislative power to create new offenses, and it may extend common-law definitions of particular offenses, so as to punish acts not embraced in the common-law definitions. See People v. Most, 128 N. Y. 108; Rachels v. State, 51 Ga. 374, 276; State v. Sattley, 131 Mo. 464.

In a late New York case it was said: "The legislative power of the state, which, by the constitution, is vested in the senate and assembly, covers every subject which, in the distribution of the powers of government between the legislative, executive, and judicial departments, belongs, by practice or usage, in England or in this country, to the legislative department, except in so far as such power has been withheld or limited by the constitution itself, and subject, also, to such restrictions upon its exercise as may be found in the constitution of the United States. From this grant of legislative power springs the right of the legislature to enact a criminal code, to define what acts shall constitute a criminal offense, what penalty shall be inflicted upon of fenders, and generally to enact all laws which

expediency, wisdom, or propriety of legislative action in matters within its powers. 106

the legislature shall deem expedient for the protection of public and private rights, and the prevention and punishment of public wrongs. The legislature may not declare that to be a crime which in its nature is and must be, under all circumstances, innocent, nor can it, in defining crimes, or in declaring their punishment, take away or impair any inalienable right secured by the constitution. But it may, acting within these limits, make acts criminal which before were innocent, and ordain punishment in future cases where before none could have been inflicted. This, in its nature, is a legislative power, which, by the constitution of the state, is committed to the discretion of the legislative body." Lawton v. Steele, 119 N. Y. 226, 16 Am. St. Rep. 813.

106 Per Allen, J., in People v. Albertson, 55 N. Y. 50, 54. And see State v. Addington, 77 Mo. 110; People v. Worden Grocer Co. (Mich.) 77 N. W. 315. See, also, post, § 36.

In People v. West, 106 N. Y. 293, 60 Am. Rep. 452, it was said: "It is not a good objection to a statute prohibiting a particular act, and making its commission a public offense, that the prohibited act was, before the statute, lawful or even innocent, and without any element of moral turpitude. It is the province of the legislature to determine, in the interest of the public, what shall be permitted or forbidden, and the statutes contain very many instances of acts prohibited, the criminality of which consists solely in the fact

34. Power of Congress.

The power of congress is very much more restricted than the power of the state legislatures. It has no inherent power, but has such powers only as have been expressly or impliedly conferred upon it by the instrument to which it owes its existence, the constitution of the United States.107 The constitution also contains some express limitations upon its powers.108 Congress has the power to legislate for the territories and for the District of Columbia.109

that they are prohibited, and not at all in their in trinsic quality. The unnecessary multiplication of mere statutory offenses is undoubtedly an evil, and the general interests are best promoted by allowing the largest practicable liberty of individual action, but nevertheless the justice and wisdom of penal legislation, and its extent within constitutional limits, is a matter resting in the judgment of the legislative branch of the government, with which courts cannot interfere."

107 Const. U. S. art. 1, §§ 8, 9, and the amendments; U. S. v. Arjona, 120 U. S. 479; U. S. v. Coombs, 12 Pet. (U. S.) 72.

108 Const. U. S. art. 1, § 9.

109 Const. U. S. art. 1, § 8; Reynolds v. U. S., 98 U. S. 145, Beale's Cas. 179; Reynolds v. People, 1 Colo. 179.