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§ 27.: The effect of crime on the rights of the criminal—Power of State to declare what is a crime.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
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The effect of crime on the rights of the criminal—Power of State to declare what is a crime.—
The commission of crime, in the discretion of the government, subjects all rights of the criminal to the possibility of forfeiture. Life, liberty, political rights, statutory rights, relative rights, all or any of them may be forfeited to the State, in punishment of a crime. When a man commits a crime he forfeits to a greater or less extent his right of immunity from harm. The forfeiture for crime is usually confined to life, liberty and property, and political rights, although all rights in the wisdom of the legislature may be subjected to forfeiture, and the forfeiture of liberty is the most common.
But, in order that there may be a constitutional forfeiture of any right, as a punishment for the doing of an act, that act must be one which the State may condemn and punish as a crime. The power of the State to declare what is a crime, and punishable as such, is not unlimited. We need not dwell upon Blackstone’s distinction between mala in se and mala prohibita, for that distinction is neither scientific nor safe as a guide in this case. On the one hand, it is an undoubted principle of constitutional law that an act innocent or innocuous per se cannot be prohibited and punished as a crime. And, on the other hand, that the State may enlarge the category of existing crimes, by the prohibition and punishment as crimes of acts, which at common law and under existing statutes were permitted to be done, subject to no penalty, civil or criminal, or which were not punishable as crimes.
This principle of constitutional law has recently been discussed and applied, in a case1 in which the constitutionality of a New York statute was questioned, which statute made it a criminal misdemeanor to be found in possession of the means of violating a law, and authorized the peremptory destruction of such means by any constable or peace officer.2 In holding the act to be constitutional, the Court of Appeals said, inter alia: “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 (express limitations of constitutions, State and Federal) make acts criminal which before were innocent, and ordain punishments 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. The act in question declares that nets set in certain waters are public nuisances, and authorize their summary destruction. The statute declares and defines a new species of public nuisance, not known to the common law, nor declared to be such by any prior statute. But we know of no limitation of legislative power which precludes the legislature from enlarging the category of public nuisances, or from declaring places or property used to the detriment of public interests or to the injury of the health, morals or welfare of the community, public nuisances, although not such at common law. There are, of course, limitations upon the exercise of this power. The legislature cannot use it as a cover for withdrawing property from the protection of the law, or arbitrarily, where no public right or interest is involved, declare property a nuisance for the purpose of devoting it to destruction. If the court can judicially see that the statute is a mere evasion, or was framed for the purpose of individual oppression, it will set it aside as unconstitutional, but not otherwise.”
A similar question, as to the power of the State to create new crimes by statute, was raised in respect to a California statute, which declared a husband guilty of a felony who “connives at, consents to, or permits,” his wife to be placed or left in a house of prostitution. The statute was held to be constitutional, notwithstanding the statutory crime there created was a mere operation of the mind, not evidenced by any overt act.1 It has also been held to be a constitutional exercise of police power to make it criminal for any person doing business as a banker to receive deposits after he knows that the bank is insolvent.2
There are, however, some express constitutional limitations upon the power of the State to declare that a crime, which may be held to create a civil liability. Thus, many of the State constitutions contain an express prohibition of imprisonment for debt. Difficulty is experienced in determining, when this constitutional provision is infringed, in those cases where the element of fraud enters into the case. The cases seem, generally, to agree that this constitutional protection from liability to imprisonment is intended solely for the honest but unsuccessful debtor, and cannot be invoked in behalf of the dishonest or fraudulent debtor. For example, in applying this question of constitutionality to the statutes, now very common, which provide for the punishment of hotel guests who fraudulently and with intent to cheat, refuse to pay their bills, a distinction is made by the courts between the honest and the fraudulent failures to pay such bills; holding that the statutes are only intended to punish those who willfully and fraudulently contract such bills, and hence do not come within the constitutional prohibition of imprisonment for debt.1
On the same general principle, it has been held that imprisonment, for refusal to obey the order of court, in bastardy proceedings, to pay an allowance to the mother of the child,2 or to pay over to another money which is in one’s possession, but under the control of the court,3 does not fall within the constitutional prohibition of imprisonment for debt. It has also been held to be constitutional for a city ordinance to provide imprisonment for employees of a water company, as a penalty for their violation of the contract between the city and the water company.1 On the other hand, it has been held to be a violation of the constitutional prohibition of imprisonment for debt, where a statute provides for the punishment by fine, and by imprisonment if he fails to pay the fine, of a banker who receives deposits after he knows himself to be in an insolvent condition.2 And it has, likewise, been held that a statute is unconstitutional which directs the imprisonment of a debtor who has disposed of all his property, with the intent to defraud his creditors.3 On the other hand, it has been held to be constitutional for a statute to provide for the arrest of debtors, who are removing and disposing of their property in fraud of creditors.4
Lawton v. Steele, 119 N. Y. 226; s. c. 152 U. S. 133.
See, also, to the same effect, Ford v. State, 85 Md. 465, in which it was held to be within the police power of a State to make the possession of a lottery outfit, or any part thereof, a misdemeanor.
People v. Bosquet, 116 Cal. 75.
Meadowcroft v. People, 163 Ill. 56.
Ex parte King, 102 Ala. 182; State v. Yardley, 95 Tenn. 546; Hutchinson v. Davis, 58 Ill. App. 358. In the last case, this distinction between honest and dishonest failures to pay hotel bills is clearly set forth. See also State v. Norman, 110 N. C. 484, applying the same principle to the general cases of fraudulently contracted debts.
State v. Wynne, 116 N. C. 981. So, also, where the court imprisons husband for refusing to pay alimony to his wife, under order of the court. Hurd v. Hurd (Minn.), 65 N. W. 728.
State ex rel. Audibert v. Mauberret, 47 La. Ann. 334.
Crosby v. City Council of Montgomery, 108 Ala. 498.
Carr v. State, 106 Ala. 35.
Drummer v. Nungesser, 107 Mich. 481.
Light v. Canadian Co. Bank, 2 Okl. 543 (37 P. 1075).