in the singular, unless the plural is required, as here, by a reference to more than one state.

(22) Every law may be said to consist of several parts, page 53.

This must not be understood to mean that we find, as a rule, in each law the four distinct parts here mentioned by Blackstone, but that these are four distinct modes in which any law may operate, so implying one another that from a law stated in either mode the others may generally be inferred. Thus, for example, the declaratory part is, as B. says, that by which the rights to be observed and the wrongs to be eschewed are clearly defined and laid down: and when the existence of a right or a wrong is thus declared, the courts will infer from it the direction to respect the one or avoid the other, and the existence of a remedy whenever that direction is not followed. The vindicatory part, when properly distinguished from the remedial, has limitations indeed of its own. The commission of an unlawful act is not necessarily punishable. Many of our states, as has been shown elsewhere, deny to the courts the power of punishing such an act as a crime or a misdemeanor, unless an express statute to that effect has been enacted. (See Lieber's Hermeneutics, 3d edition, by Hammond, note J, page 293.) And this is no modern rule. The maxim, nulla pœna sine lege, has long been familair in European law. For its history, see Hermeneutics, pp. 294-296; and for its American application, U. S. v. Morris, 13 Peters, 464; Ferrit v. Atwill, 1 Blatchf. 151; U. S. v. Clayton, 2 Dill. 219; 1 Green's Crim. Rep. 439; 1 Bishop on Crim. Law, ?? 36, 134, 135. But this exception has no bearing upon private law, in which the existence of a right, the direction to respect it, and the remedy for its violation, so generally imply each other that they are almost convertible terms.

Even

The declaration of a right rarely is found in formal language; and a right itself in legal language is less often designated by that name than by the common terms for the different kinds of rights. When a constitution or a statute defines the age and other conditions upon which suffrage is to be exercised, the law at once converts that exercise into a right, and gives a remedy for any unlawful interference with it. The question whether the plaintiff in such a case must also show some actual damage proceeding from the infringement of his right is one upon which the courts have differed. If a statute gives to a person or to a corporation the power of flooding land, or of constructing a railroad or other easement, the exercise of such power at once becomes a right, and every interference with it a wrong, to which the law annexes the common remedies. when a court recognizes a new kind of property, as in the case of ice, the law at once annexes all the directions and remedies which belong to property in general to the right thus declared. One important limitation must be mode here. If the legislature has not only declared a new right, but has expressly given a remedy for its enforcement, that remedy alone can be pursued; on the principal, expressum facit cessare tacitum. It will be presumed that the legislature did not intend to add the usual common-law remedies by implication, since they have given a special one. (Cole v. City of Muscatine, 14 Iowa, 296.) Here, again, the courts have introduced a distinction not always easy to apply. If the act thus forbidden would constitute a common-law wrong, independent of the statute, the addition of a special remedy will not prevent the use of that given by the common law, e. g., a statute regulates the taking of land under the power of eminent domain for a railroad, and prescribes how it may be condemned. A railroad corporation enters upon land without taking the necessary steps for condemnation; must the owner

pursue the statutory remedy, or may he treat the entry as a common-law trespass and recover damages on that ground? Upon this point decisions are conflicting, but the latter is the more correct doctrine.

Some courts distinguish the cases where the owner has the right to set in motion the process of condemnation from those where the railroad company alone can do it, giving the common-law action to the owner in the latter case but not in the former.

Still more frequently the law gives the remedy for acts not previously characterized either as rights or as wrongs, which are at once enrolled under those categories as a consequence. If a statute gives an action where none existed at common law, the necessary inference at once is that the case of such action includes both a right and a wrong: a wrong by the defendant for which a recovery is sought; a right in the plaintiff of which that act is an infringement. And this is a logical and necessary conclusion to which there can hardly be an exception; for right and wrong are the parents of all actions, as the old books say

Finally, when an act previously innocent is made penal, this vindicatory law implies a declaration that it is wrong, a direction not to do it, including the important corollaries that it is legally void when done, and that no contract or agreement to do it can be binding, and a remedy for all damage resulting from it. It makes no difference in this respect whether the act is malum in se or malum prohibitum, since the addition of the legal penalty would now be regarded as adding new force and effect in such cases, contrary to Blackstone's doctrine. (1 Com, 53.)

And although the act be merely prohibited by positive law, that prohibition is evidence of the will of the state that it should not be done, and is held to impose a conscientious duty of obedience on all citizens: "Where a statute inflicts a penalty for doing an act, though the

act be not prohibited, yet the thing is unlawful: for it cannot be intended that a statute would inflict a penalty for a lawful act." (Bartlett v. Viner, Skin. 322; Griffith v. Wells, 3 Denio, 226.) An exception is sometimes made in the case of penalties imposed merely for revenue purposes or to insure uniformity in a course of conduct otherwise indifferent; and generally the ordinances of municipal corporations and the penalties they impose do not come within the rule. Finally, an important distinction is made in the remedial effect of all such actions. The plaintiff must show not only that the defendant has committed the wrong thus established, but also that such wrong has produced a special and substantial harm to himself, independently of its harmful effects as a breach of the general law or a wrong to the community. It is only when the wrong thus committed is a breach of some common-law right of security, liberty, or property for which a direct action would lie at common law, that its commission is sufficient to sustain the action without proof of damnum. (Upon this, see notes to book 3, chapter 9.)

The distinction of malum in se and malum prohibitum as originally recognized in the common law, answers to the distinction between the natural and positive law, or in Coke's language, the former is an offense against the common law and the latter against some statute. (Coke, 4 Inst. ch. 5, p. 63, and ch. 20, p. 153.) Coke gives as instances of both examples which would hardly be recognized to-day, such as the offense of forestalling and engrossing as mala in se; but the difference in his view is substantially the same with that of Blackstone. It is still recognized by judges and courts, although it has frequently been repudiated : but it loses all its force and meaning when ethics and law are properly discriminated, and the latter term is limited to such rights and wrongs as affect the state or private individuals. In that case, the moral character

of an act has no bearing upon its legal quality. There may be a conflict between the requirements of law and those of conscience, but neither can properly overrule or avoid the other. All wrongs are prohibited, and prohibited only, so far as the state is concerned. With their quality as wicked or unconscientious, the judge has nothing to do, as even "murder, and theft, and perjury, which contract no additional turpitude from being declared unlawful by the human legislature," in Blackstone's words, are held to be punishable only so far as the state has made them so, and not by virtue of any moral prohibition. Some states require a positive legal prohibition, in all cases; others still recognize, as England does, common-law offenses, which may be punished although no legislative act has forbidden them or attached a penalty to them; but even in the latter case they are punished, not because they are immoral, but because the law of the state has forbidden them, as shown by judicial precedents, or by such other authorities as the courts deem themselves bound by. The distinction may be still useful so far as to express the greater or less turpitude of a crime, but not as forming two classes of crimes, the punishment of which rests upon different bases

If the distinction is to be maintained, it is not easy to determine where the line shall be drawn. Blackstone evidently draws it between ethics on the one side, and matters indifferent on the other, without reference to the question whether there has been positive legislation or not; since, as he says distinctly, a statute forbidding a thing wrong in itself has no force or operation at all. Coke, on the other hand, makes the distinction substantially the same with that of common law and statute; mala in se being common-law crimes, as distinct from those created by positive legislation. (4th Inst. pp. 63, 153.) But many acts which could not be punished criminally without an express statute for that purpose,

16LACKST.-14.