shall be at such place or places as the congress may by law have directed.1 It also provides that treason against the United States. shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort; and that no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.2 It further provides that a person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime.3 § 22. Acts of congress.-Congress has no inherent power whatever. In this respect it differs widely from a state legislature. It has only such powers as are conferred upon it expressly or impliedly by the United States Constitution.* Moreover, this instrument contains some express restrictions upon its powers. All legislative powers, however, granted by the United States Constitution, are conferred upon congress. It has power to legislate not only for the United States as a whole but also for the territories and for the District of Columbia. § 23. State constitutions.-State constitutions differ materially from the United States Constitution. The former constitute, for the most part, restrictions or limitations of powers; whereas the latter constitutes, for the most part, grants of powers. The constitution of Illinois, which may be taken as typical, 1 U. S. Const., art. III, § 2. 2 U. S. Const., art. III, § 3. 3 U. S. Const., art. IV, § 2. 4 United States v. Arizona, 120 U. S. 479, 30 L. ed. 728. 5 U. S. Const., art. I, § 9. 6 U. S. Const., art. I § 1. 7 U. S. Const., art. I, § 8. See also Reynolds v. United States, 98 U. S. 244, 25 L. ed. 244. in this respect, of most states, contains, among others, the following provisions: "No person shall be deprived of life, liberty or property, without due process of law.8 "Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense. "The right of trial by jury as heretofore enjoyed, shall remain inviolate; * * *10 "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue without probable cause, supported by affidavit, particularly describing the place to be searched, and the persons or things to be seized.11 "All persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great; and the privilege or writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.1 12 "No persons shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army and navy, or in the militia, when in actual service in time of war or public danger: Provided, that the grand jury may be abolished by law in all cases.13 "In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel, to demand the nature and cause of the accusation and to have a copy thereof, to meet the witnesses face to face, and to have 8 Ill. Const. (1870), art. II, § 2. 9 Ill. Const (1870), art. II, § 4. 10 Ill. Const. (1870), art. II, § 5. 11 Ill. Const. (1870), art. II, § 6. 12 Ill. Const. (1870), art. II, § 7. 13 Ill. Const. (1870), art. II, § 8. process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.14 "No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense.15 "All penalties shall be proportioned to the nature of the offense, and no conviction shall work corruption of blood or forfeiture of estate; nor shall any person be transported out of the state for any offense committed within the same.16 "No person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors, in such manner as shall be prescribed by law, or in cases where there is strong presumption of fraud." 17 "No ex post facto law, *** shall be passed."18 § 24. Acts of state legislatures.-State legislatures, unlike congress, have inherent power to declare acts criminal and to impose penalties for their violation, Their power, however, in these respects, is not absolute. Their enactments must not conflict with any provision of the United States Constitution, or of the state constitution, or with any valid act of congress. Barring these limitations, however, their legislative authority is absolute; and their enactments, when they become law, must be enforced by the courts.19 "It is the province of the legislature to determine in the interest of the public what shall be permitted or forbidden, and 14 Ill. Const. (1870), art. II, § 9. See also Watt v. People, 126 III. 9, 18 N. E. 340, 1 L. R. A. 403. 15 Ill. Const (1870), art. II, § 10. 16 Ill. Const. (1870), art. II, § 11. 17 Ill. Const. (1870), art. II, § 12. This provision has reference solely to debts arising ex contractu, and is not applicable to fines or penalties arising from criminal actions, or to obligations arising the statutes contain very many instances of acts prohibited, the criminality of which consists solely in the fact that they are prohibited, and not at all in their intrinsic quality. The unnecessary multiplication of mere statutory offenses is undoubtedly an evil, and the general interests are best promoted by allowing the largest practical 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 can not interfere."20 § 25. Acts of territorial legislatures-Territorial legislatures are created by congress, and their powers are limited to those conferred upon them by that body. Their legislative power "shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States."21 § 26. Acts of the British parliament.-The British parliament, like state legislatures, has inherent power to declare acts criminal and to impose penalties for their violation. Unlike state legislatures, however, its hands are not tied by any written constitution. Its power to enact laws, therefore, is absolute. § 27. The English common law.-The basis of the English common law is immemorial usage and custom, and not legislative enactment. For this reason it is often called the "unwritten law." The generic term "common law" has been well defined as "those maxims, principles, and forms of judicial proceedings, which have no written law to prescribe or warrant them, but which, founded on the laws of nature and the dictates of reason, have, by usage and custom, become interwoven with the written laws; and, by such incoralso Booth v. People, 186 Ill. 43, 57 N. E. 798, 50 L. R. A. 762. 78 Am. St. 229. 20 People v. West, 106 N. Y. 293, 12 N. E. 610, 60 Am Rep. 452 As to acts which legislatures may or may not declare criminal, see note to 78 Am. St. 235-274. See 21 U. S. Comp. Stat. (1916), § 3438. poration, form a part of the municipal code of each state or nation, which has emerged from the loose and erratic habits of savage life, to civilization, order, and government of laws."22 "The authority of these maxims [and rules of the common law] rests entirely upon general reception and usage. "23 § 28. The American common law.-The American common law is similar in most respects to the English common law. In so far, however, as the latter is inapplicable to our conditions and surroundings it is not a part of our common law. On the other hand, it includes some usages adopted by the colonists, some English statutes in force when they settled in this country, and a few enacted afterward and before the Revolution. The Supreme Court of the United States has decided that English statutes which were enacted before the emigration of our ancestors, and which were in force at that time, and which are applicable to our conditions and surroundings, constitute a part of our common law.24 § 29. The common law as defined by legislature.-The common law of many states is expressly defined by an act of the legislature. The Illinois act, which is practically the same as that of other states, provides "That the common law of England, so far as the same is applicable and of a general nature, and all statutes or acts of the British parliament made in aid of, and to supply the defects of the common law, prior to the fourth year of James the First, excepting the second section of the sixth chapter of 43d Elizabeth, the eighth chapter of 13th Elizabeth, and ninth chapter of 37th Henry Eighth, and which are of a general nature and not local to that kingdom, shall be the rule of decision, and shall 22 Ohio V. Lafferty, Tappan (Ohio) 81. 231 Bl. Comm. 68. See also, 6 Am. & Eng. Encyc. L. (2d ed.) 270, 271. 24 Patterson V. Winn, 5 Pet. (U. S.) 233, 241, 8 L. ed. 311. See also Nider v. Commonwealth, 140 Ky. 684, 131 S. W. 1024, Ann. Cas. 1913 E, 1246 and note on Adoption of Common Law in Relation to Crimes. |