Year: 1859




and its policy, Lotteries could not fairly be deemed
violation of any of the moral principles Of the
| mon law NAHUM IN se 1t is a fixed rule of com
| mon law, that whenever a statute creates an Of
fence, not punishable before and prescribes the
remedy, and affixes the pains and penalties the
mode Of proceeding against the offender prescribed
by the act must be strictly pursued, because there
is no punishment provided by the common law for
such offence This doctrine of reason is so well
established by all the text books on criminal law,
that it is not necessary to refer to them here.


This brings us to consider what punishment is
provided bv the acts and Constitution for the sale of
foreign lottery tickets, and whe her the mode of pro-
ceedng against offenders exists, and is practicable
The Act of lS47, which renders the offender liable
to Indictment, is a supplement to the Act of 1885,
They were both enacted to preUent frauds on the
repenue The Commissioners of Lotteries are the
only agents employed by the act of 1916, to pro-
ceed IN the cases therein specified and the Act of
lS4, its supplement- also refers in its second section
to the Commissioners agents to institute the Bill
OF Discovery therein provided; although in its first
section it declares the party NAV Be indicted for n
violation of the lst, I'd and 4h sections of the Act
OF 1876, under which the Commissioners were to re-
ceive all lines recovered pay one-haf to the State
and the other moiety to the informer. If any per
son should be indicted under the act of lS47 and
convicted, there is no agent authorized to receive
the fine of thirty dollars, or pay it over because
the office OF the Lottery Commissioner is now abol-
ished.


When the evil intended to be remedied and pun-
cannot
survive the evils intended to be remedied, which
are expressed in the titles of these acts to be frauds
on the revenue of the State. u"-f'E atF 81.


Since the prohibition of all lottery grants by the
last Constitution, the State has sold out all her rev.
enue IN lotteries before granted to a firm bonded
under act % lrsat ahiTyrH to nav her n certain
for all her consolidated lotteries Under these
circumstances, the State would not perhaps be en-
titled to receive any part of the fines and convic
tlons, if there was any Commissioner to pay it, But
be this as it may, this Court is of the opinion as ar
gued by the counsel for defendant, that these acts
may be construed as one act: and therefore if
there be no Commissioners to (carry) the Ist. End
and 4th sections of the act of 1916 into operation its
supplement, the act of lS47 must fall with it. after
the grievance which the act of 1916 intended to
guard against and punish, has become extinct in
the State


This leads us in the next place to examine, and
give construction to the 5tb section of the 7th ar
tlcle OF the Constitution, which reads in these
words: "From and after the lst day of April 1859
no lottery scheme shall be drawn for any purpose
whatever, nor shall any lottery ticket be sold in
this State and it shall be the duty of the several
commissioners elected under this Constitution to
make such contract contracts as shall extineuish
all existing lottery grants before the lst day of
April, 1853, and also to the State clear
yearly revenue equal to the average amount de-
rived by the State from the system for the last five
years; but no such contract or contracts shall be
Vand, until approved by the Treasurer and Comp
trolIer.' f


In the first place, it may be proper to remark in
els connection, that there is no case of
conviction on an article, imposing no
the absence of Legislative enactments, to
supply this deficiency. All constitutions are con-
sldered declaratorv of the general principles of
government, which are left to the wisdom of the
Legislature, In most cases, to carry into effect by
proper laws.


In all such cases the Punishment must be confer
red accordingly, bv Indictment or otherwise This
fundamental principle must have been known to
and considered by the trainers of our Constitution
who in some of their prohibitory articles declared
the mode OF proceeding against such offenders and
the degree of punishment They have not done so
IN all prohbiory articles, because they thought it
the province of the Legislature to make laws in
such cases, and relied on the Legislature to do so
In this reasoning we are not including prohibited
contracts about usury and the like, which are de-
c'ared void, and, therefore, not reasonable in the
counts.


They of different nature and relate to the
civil rights of parties acquired under them, over
which this Court has no jurisdiction. Such pro-
hibited contracts have been referred to here be-
cause the counsel for the State argued by analogy
that the principles of law decided in the case ofDl
Elliotby Chief Justice Taney and Judge Giles in
the Circuit Court of the United States for Mary
land ought to rule this Criminal Court in deciding
Clark's case.


On the side of the defendant. the record of
the opinion of the Court of Appeals of this State
was produced in the of Bandell u.s. Isaac to
convince the Court here, that an act of Assembly
must necessarally be enacted to give effect and
operation to the 5th section of the count under
which Clark trial for selling foreign lottery
tickets.


These two cases are mentioned in this opnion to
explain the reason why this Court does not intend
to be governed entirely in its decision in Cark's
case by either of these conflicting opinions Both
OF these cases. of high authority have been studied
with due Difference, without the power to Judge
which is right, to reconcile them to each other
But mon "ostram est tonfos componere es" it is not
~


ments, and therefore it is prudent to pronounce no
presumptuous opinion about them; but only to ex-
plain the difference betwixt those cases and Carks
and to endeavor to steer its passage betwxt them
by tn light of its own lamp and avoid the dangers
betwixt Scylla and Charybds.


This Court thinks neither of these decide all
the principles of criminal law m Clark's case be-
cause they relate to civil suits a usurious con-
tract prohibited by the 49th section of the 3rd act
of the Constitution of 1851 which the Circuit Court
OF the United States decided in 1854 to be void an
toto and forfeited, and which the Court of Appeals
In late case, 1885, (Bandel Us. Issac) decided a
usurlous contract not to be void in TOTO but that the
sum actually received by the defendant, with legal
interest could be recovered by virtue and force of
the act of l845, chapter 352 the Legislature had
not enacted any penalties or forfeitures which by
sad 3rd act they were required to provide.


These were civil actions; Clarks is an indictment
on which the State claims conviction, and punish
ment by fine and Imprisonment under the said 5th
section, although the Legislature has since provided





By way of conclusion, a few remarks of the Court
in the case of Bandel will be quoted, which read
thus:-'lf as in the case) the Legislature has not
provided, BY td~, forfeitures and penalties the
Courts cannot usurp the authority by which the
Constitution has in express terms empowered the
Legislature to exercise, &C."


Ii this be sound doctrine, laid down by the
Court of Appeals it is only necessary to show that
the Legislature have not provided any act since the
Constitution of 1851, to punish any person for sell
ing foreign lottery tickets in this State. This
Court has convinced itself that the previous law in
1lctlng fines and imprisonment are not now in
force. -..


1t will be borne in mind that the Court of Ap-
peas in Bandes case decided that the acts of l7O4
chapter 69, and ls45, were both in force the sub
ject of usury, and their opinion is based upon the
effect of these Acts after the Constitution of 1851


For these reasons it is adiudged by this Court
that John Clark is not guilty of the offence for
which he is tried and ordered by the Court that
the said John Clark be hence discharged without
pay. -- 5.-a .-..