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,.

1 BLACKST.-14.

because they were unknown to our fathers, involve much more moral turpitude than many of the common-law crimes mentioned by Coke, such as forestalling and engrossing. For example, a considerable number of the most heartless and atrocious frauds are of so recent introduction that no court would feel authorized to punish them in any state without an express statute. This vagueness of distinction is another strong reason for allowing the terms to fall into disuse.

(23) Natural rights, such as. life and liberty, need not the aid of human laws to be more effectually irvested in every man than they are. No human legislation has power to abridge or destroy them. etc., page 54.

....

This statement is a logical consequence of Blackstone's position that ethics or natural law is a part of the municipal law, binding over all the globe, in al. countries and at all times. (Ante, p. 41, and p. 107, n. 10.) Or course, the rights given by that law must be legal rights, attended by legal duties, and enforcible by the courts without other authority than the law of God himself. But this position is one that few writers upon the law would now admit in its full force. It implies that the state or the sovereign is God's vice-gerent, intrusted by him with the enforcement of his laws, and all the other consequences of the divine right of kings. The recognition of a complete distinction between ethics and law must be fatal to the doctrine.

Moreover, there are practical difficulties in the enforcement of such a doctrine in a country of free institutions. If no human legislation is of any validity against this law of nature, it must always be possible for one accused of crime to raise the question whether the law under which he is accused is consistent with the highest law of ethics. Even in civil questions the

rulings of the courts must always be disturbed by ethical considerations, making a logical system of law impossible. No judge could assume to pass with authority upon issues of this kind by any wisdom less than inspiration; or, if he did assume it, it would be only to lay the way open to an intolerable amount of individual caprice and injustice.

I do not mean by this to express any opinion upon the question so often mooted of the "higher law," that is, of the force of obligations upon a citizen's conduct, when a law of the land seems to him to be in direct conflict with the teachings of his own conscience. That such a conflict is possible, follows inevitably from the recognition of ethics and law as two distinct systems. We thus keep it out of human tribunals; but no power can remove it from the court of one's own conscience. It may be that human law will command an act which even a healthy conscience may refuse to approve, or forbid one that such a conscience will require; and in that case the ethical duty of a good man is as clear as the necessity of a breach of human law. It is not easy to define such cases in advance, any more than it is to lay down rules for the right of rebellion, which rests upon the same principle, and which no American citizen, at least, can deny. Every such case must be judged by its own circumstances-a rule true in ethics generally, and especially so here.

But it should be remembered, when such a case arises, that there is also an ethical duty incumbent upon every good citizen to obey the laws of his state even in matters indifferent; and also that there is a strong presumption in favor of their justice as against the cavils of a single conscience. The citizen who feels himself obliged to break a law of the state on conscientious grounds must assure himself in the first place that there is no logical error in his position, and in the second place, that the pressure upon his conscience is more weighty than his duty as a citizen.

(24) This was certainly a bad method of interpretation, etc., page 59.

This judgment passed upon authentic interpretation is now a just one; and, as Judge Cooley has well remarked, such interpretation is inadmissible where the legislative and judicial powers are distinctly separate. But it certainly is no more so than to assign to the judiciary the work of legislation. It would be better to allow the judges to refer the solution of doubtful questions to the legislature, as is not only permitted but required by several of the European codes, where their interpretation must in effect constitute new law, than to allow the judge to make such new law in deciding the case already before him, the facts of which have occurred before the change. If the interpretation is meant only to explain what is ambiguous in the existing law, it would seem that the author of that law should be the one best qualified to give it. This was the medieval doctrine, following Justinian (Code, 1, 14, 12), who had decided the doubts earlier existing in favor of the power. It is remarkable, however, that he puts the emperor's power to interpret the laws upon the same base with his power to form law by judicial decision. The entire constitution is translated and commented on by Savigny, System, vol. 1, 247, pp. 301-304. The glossators adopted the doctrine and greatly enlarged it. The maxim, ejus est interpretari legem cujus est condere (Code, 1, 14, 9; Novel 143, pr.; Digest, 28, 6, 43, pr.) was regarded as fundamental, and based in the very nature of the case. The interpretation of the sovereign became law as fully as the text that called for it, and was therefore binding on all inferior tribunals and persons not only in its direct terms, but also in all the consequences and analogies that could be derived from it. The interpretation of the courts, on the other hand, was held to have no authority beyond the particular case to which it was applied.