
    Same Case—On an Application for a Re-hearing.
    
      Roselius, Attorney General, for a re-hearing.
    It is immaterial in the present case, to enter into a discussion of the formerly much vexed question, whether the Supreme Court can constitutionally exercise criminal appellate jurisdiction. The contemporaneous interpretation of the constitution, followed up by an uniform current of decisions of this court during a period of twenty-nine years, has put this question at rest. Be this, however, as it may, the question does not arise on this occasion. “ The Legislature has made no provision for the exercise of such jurisdiction” by this court.
    The only question which the case presents is, whether the act of 29th January, 1817, creates a crime or misdemeanor punishable criminally ; or whether that law only gives a penal action in the proper and legal acceptation of that word.
    To come to a correct solution of that question, it is necessary to ascertain what is the legal and proper definition of “ a penal action,” and on what statutes it lies.
    It is strange that this question, which presents itself at the very threshold of the inquiry should not have been discussed either in the elaborate argument of the counsel for the defendant, nor in the opinion delivered by the majority of the court. It is taken for granted, that nothing but a penal action is given by the act of 1817, without a single argument being offered in support of that position. Not one of the “very numerous authorities” cited, gives the slightest countenance to the doctrine here assumed.
    What do those authorities establish 1 Two propositions; first, that penal actions are civil suits; and secondly, that an indictment is not the proper remedy on a penal statute for the recovery' of the penalty, unless that mode of proceeding is pointed out by law. I have never controverted either of these propositions. I have admitted during the whole of this protracted litigation, that penal actions must be considered as civil suits; and I never pretended that a civil suit could be commenced by an indictment. What I contest is, that the law of 1817, under which Williams is prosecuted, gives a penal .action, or is a penal statute as contra-distinguished from a criminal law.
    
    What is a penal action ? It is a suit brought for the recovery of a pecuniary penalty for the commission or omission of an act in violation of a penal statute, in virtue of a special provision in the law authorizing the plaintiff to sue for it. This definition is supported by all the authorities cited, as I shall show hereafter. I contend, therefore, that it is an undeniable proposition, that no penal action, or suit for the recovery of a penalty can be maintained, unless the authority to sue for it, or to recover it, is expressly given by the statute on which the action is founded. In other words, the party who brings a penal action, must show his authority to sue by a provision in the law to that effect. So that when an act is prohibited under a pecuniary penalty, and no authority given to sue for the penalty in case of contravention, no penal action will lie. This distinction runs through all the books. It is not a mooted point among common law lawyers. The question debated by them has been in relation to the form of the action to be resorted to, where the right to sue for the recovery of the penalty was given by the statute; and it has long been settled, that “ the action of debt” is the proper one.
    It is true, that penal actions are based, as the court observes, by Blackstone and other elementary writers, on the doctrine of implied contracts. But neither Blackstone nor any other author says, that a penal action lies for the recovery of a fine imposed as a punishment for the violation of a public law, when the right to sue is not expressly given. The converse of the proposition is supported by all that Blackstone says on the subject. He is discussing the different modes in which obligations are created. In speaking of implied obligations arising from the mere operation of the law, he says :
    “ The same reason may with equal justice be applied to all penal statutes, that is, such acts of Parliament whereby a forfeiture is inflicted for transgressing the provisions therein enacted. The party offending is here bound by the fundamental contract of society to obey the direction of the Legislature, and pay the forfeiture incurred to such persons as the law requires. The usual application of this forfeiture is either to the party aggrieved, or else to any of the King’s subjects in general. Of the former sort is the forfeiture inflicted by the statute of Winchester (enforced and explained by several- subsequent statutes) upon the hundred wherein a man is robbed, which is meant to oblige the hundredors to make hue and cry after the felon ; for if they take him they stand excused. But otherwise the party robbed is entitled to prosecute them by a special action on the case, for damages equivalent to his loss. And of the same nature' is the action given by the statute, 9 Geo. I, c. 22, commonly called the black act, against the inhabitants of any hundred, in order to make satisfaction in damages to all persons who have suffered by the offences enumerated and made felony by that act. But more usually these forfeitures created by statute are given at large to any common informer; or in other words, to any such person or persons as will sue for the same: and hence such actions are called popular actions, because they are given to the people in general.” By referring to the different statutes here commented on, the court will find, that in every one of them the right to sue for and recover the penalty is given in express terms, either to particular persons, or to common informers in general. In the latter case the King himself may bring the suit: but if one of his subjects has commenced it before him, he cannot maintain it. But Blackstone never dreamt that either the King, or an ordinary individual, could maintain a penal action unless the right to sue was specially given.
    This position is fortified by the authority of Bacon in the clearest possible manner. In the first volume of his Abridgment, page 73, verbo, Actions, qui tarn, is the following definition of the action under consideration.
    
      “ Actions, qui tarn, are such as are given by acts of Parliament which impose a penalty and create a forfeiture for the neglect of some duty, or commission of some crime, to be recovered by ac
      
      tion or inform,ation, at the suit of him who prosecutes as well in the King;s name as in his own. As most penal statutes direct that the penalty may be recovered by action or information, we shall consider both matters together.”
    
    And again in a note we read :—
    “ It is called sometimes a popular action, when the penalty or a part of it, is given to any one who will sue for the same. In these actions or informations, the party who prosecutes has, by commencing his suit, such an interest in the penalty, that the King cannot discharge or suspend the suit, as to the part the plaintiff is entitled to.”
    Hawkins is equally explicit on this point. He lays down the rule as follows :
    “ I take it for granted, that they (informations qui tarn) lie on no statute which prohibits a thing as being an immediate offence against the public good in general, under a certain penalty, unless the whole or part of such penalty be expressly given to him who will sue for it; because otherwise it goes to the King and nothing can be demanded by the party.
    “But where such statute gives any part of such penalty to him who will sue for it by action or information, &c., I take it to be settled at this day, that any one may bring such action or information, and lay his demand tarn pro domino rege quam pro seipso.”
    
    But if any doubt can exist in relation to this question it will be removed by an attentive examination of the cases cited in the opinion of the court.
    The court remarks, that “ the counsel for the defendant has urged, that at common law, a penal action or action to recover a penalty is a civil suit.” The correctness of this proposition so far as the present controversy is concerned, no one ever disputed. It would have been more to the point to have produced authority to show, that when “ a breach and violation of the public rights and duties due to the whole community, considered as a community, in its social aggregate capacity” is punished by a fine only, such breach and violation constitutes neither a crime nor a misdemeanor. It is, however, not difficult to account for the absence of authorities to that effect, for no such authorities can be found. It has never yet been held by any court, that the degree and nature of the punishment to be inflicted for the perpetration of a public wrong, is the criterion, by which it is to be determined whether it is a crime or misdemeanor. Murder, will be admitted by all to be a crime, yet by the Saxon law, and by the law of nearly every other nation during the middle ages, the murderer was not otherwise punished than by a pecuniary penalty or fine, which varied according to the rank of the person killed. Were the Legislature of this State to enact, that whosoever shall be guilty of murder, shall he fined in the sura of ten thousand dollars, would this .obliterate the crime, and subject the party to a mere penal action ? Or, to take one of the lightest misdemeanors, a simple assault, for instance, which is according to the existing law punished by a fine, with or without imprisonment, will any one pretend that for this reason, an assault is not a misdemeanor, and that the party guilty of such an offence cannot be indicted criminally for it? There are many offences enumerated in our criminal code, not punishable in any other way than by a fine. By the first section of the act in relation to lotteries, approved February 17,1841, every person who shall set up or promote any lottery, 6pc., shall for every such offence, be punished by a fine of not less than one thousand dollars, and not more than ten thousand dollars, and by imprisonment in the parish jail not less than three months, nor more than one year; and by the second section it is provided, that every person who shall sell either for himself, or for any other person, or shall offer for sale, any lottery ticket, cfc., shall be punished for every such offence by a fine not exceeding five thousand dollars. The third section subjects those who advertise any lottery ticket for sale, &c., to a punishment for every such offence of a fine of not less than one hundred dollars, and not more than five hundred dollars. According to the fifth section, one-half of the fines specified in the first, second, and third sections, is to be paid to the informer, and the other half to the use of the Charity Hospital of New Orleans; and it is further enacted, that in all prosecutions under this act, the informer shall be a competent witness. It is made the duty of the presiding judge of every court of criminal jurisdiction in this State, specially to charge every grand jury to inquire into all violations of the Idws against lotteries, and against the unlawful selling of tickets in lotteries. Three distinct offences are created by this law ; but they are all punished differently; the first by a heavy fine and severe imprisonment; the two last by a pecuniary penalty only. Nota word is said in the law in relation to the mode of prosecution. Now I would ask, whether a violation of the first section of this act alone exposes the offender to be indicted criminally ? And whether a penal action is to be instituted for the recovery of the fine for the violation of the second and third sections ? If the answers to these two questions be in the affirmative, why are the presiding judges of the courts of criminal jurisdiction and the grand juries throughout the State specially charged to see that the different sections are not violated 1 What then becomes of the argument, that the act on which the prosecution against Williams is founded is purely penal; nothing is inflicted by it but a pecuniary penalty or fine ; — no imprisonment, no punishment ; — nothing but a definite, fixed, pecuniary penalty ? The Legislature has certainly expressed a different opinion on the subject of punishment. In all the sections of the law relative to lotteries, the word punishment is used with reference to the payment of a fine. There are few, if any persons who would not consider the payment of a heavy fine as a severe punishment. Indeed the words penalty and punishment are synonymous. It is a gross error to suppose, that all pecuniary penalties can be recovered by a penal action, even under the common law. No such action can be maintained unless specially given by the statute.
    It is said, that “we have no punishments at commonf law, or by common law; consequently we could not indict or punish a violation of a law which merely forbids, but does not prescribe any punishment for a certain act. This principle explains at once the error of the Attorney General. Having no common law, Williams cannot be indicted and punished under a prohibitory clause of the act of 1817, as for a misdemeanor. The case of The King v. Harris, 4 Dura. <fc East, 202, 206, and the doctrine in Bacon’s Abr. title, Indictment, p. 498, and in the note, will fully illustrate this.”
    
      It is true, crimes and misdemeanors in this State are created by statute ; and therefore, it is not sufficient to prohibit an act without denouncing the punishment which is to be inflicted for its commission. At common law, all misdemeanors are punishable with fine and imprisonment at the discretion of the court; and all new offences are considered as misdemeanors unless they are declared to be felonies. The courts in the exercise of the discretionary power vested in them, sometimes punish by fine alone, and at others couple both modes of punishment together, according to the nature of the offence. Hence in England and in the common law States, a prohibitory clause is all that is required to create a new crime or misdemeanor; and when it is found necessary in order to enforce obedience, to annex a pecuniary penalty for the benefit of the person more immediately injured by the commission of the offence, or in favor of a common informer with a view of provoking the prosecution of offenders, the com - mon law punishment of fine and imprisonment, at the discretion of the court, and the penalty to be recovered by action of debt, are considered cumulative: the latter is an additional sanction of the law superadded to the former. But although both punishments may be inflicted, it is not done in the same prosecution. The common punishment follows the prosecution and conviction on an indictment or criminal information; the pecuniary penalty is recovered by a penal action, brought by the party to whom the right of suing is given by the statute. In some cases, however, the right to sue for the penalty is not given by the law creating the offence, and then the common law punishment is superseded by that provided in the statute, no matter whether it consist in a fine or imprisonment, or both, nor whether the prosecution be by indictment, or criminal information. With us it is different; and having no common law, crimes and misdemeanors can only be punished in conformity to the statutes applicable to them. We have no cumulation of punishment. For this reason there are but few penal actions, or actions on penal statutes given by our law. The distinction between criminal laws and penal statutes, is clearly marked in the legislation of this State. The law in relation to lotteries affords a striking instance of this. By the three first sections, the promotion of lotteries, the selling of lottery tickets, and the advertising of lotteries, &c., are severally punished criminally; but the fourth section gives a penal action to the government; it is in the following words :
    
      “ Sect. 4. That every grant, bargain, sale, conveyance, or transfer, of any real estate, or of any personal property, which shall hereafter be made in pursuance of any lottery not authorized by the laws of this State, or for the purpose of aiding or assisting in such lottery, are hereby declared void and of no effect; and that all sums of money, and every other valuable thing drawn as a prize, or as a share of a prize in any lottery, by any person contrary to the provisions of this act, shall be forfeited to the use of the State of Louisiana, and may be recovered by an information to be filed, or by a civil action to be brought by the Attorney General, or any District Attorney in the name and in behalf of the State.”
    Here we have the most conclusive evidence that whenever the Legislature intend to give an action on a penal statute, they do so in express terms.
    Having no common law offences, no act can be punished except in pursuance of a special law. But let us inquire how the legislative will has been expressed on this subject ? By reference to the different criminal laws in our statute book, it will be found, that the language used in nearly all, is similar to that of the act of 1817. The 8th section of the “ act for the punishment of crimes and misdemeanors” is as follows: “ Every person convicted of horse or mule stealing, or for stealing any slave, shall for every such offence, be publicly whipped, and shall suffer imprisonment at hard labor, not less than seven, and not more than fourteen years.” Similar phraseology is used with regard to almost all the other crimes and misdemeanors punishable in this State. Generally, the act is not even prohibited in express words; the penalty or punishment alone is denounced. In this way all crimes and misdeineanors have been created by our law. Is the language of the act of 1817 different? The first branch of the section provides, “ that no slaves shall be imported and brought into this State, who shall have been convicted of the crimes of murder, rape, arson, manslaughter, attempt to murder, burglary, or having raised or attempted to raise an insurrection among the slaves in any State of the Union or elsewhere.” The concluding part of the section contains the punishment to be inflicted for the violation of the law. It is as follows : “ And if any such should be, they shall on conviction. thereof be seized and sold, for cash, to the highest bidder, after fifteen days notice of time and place of sale, one-half of the purchase money to be applied to the use of the State, and the other half to the informer • and every person who shall import or bring into this State such slaves knowing that they have been convicted of any of the above mentioned crimes, shall upon conviction before any court of competent jurisdiction, be fined for each and every slave, in the sum of five hundred dollars, one-half to be applied to the use of the State, and the other half to the use of the informer .” By comparing the phraseology of these two statutes, we discover the greatest similarity except in the kind of punishment inflicted. No authority is given in the act of 1817, either to the State, or to a common informer, to sue for the recovery of the fine or forfeiture. But it may be said that the informer can sue for it, because he has an interest, being entitled to one-half. The answer is, that no penal action, or action qui tarn, can be maintained on the statute because of the absence of any provision directing the recovery of the penalty or forfeiture by suit; and that the word informer in the law, means an informer in a criminal prosecution, who gives information to the, proper officers of the commission of the offence. The fine and forfeiture are the consequences of and follow the conviction ; and are to be applied after the conviction, “ one-half to the use of the State, and the other half to the use of the informer.” On such a statute no action or information of debt, or any other form of civil action has ever been instituted.
    The objection that the statute under which Williams is prosecuted, does not expressly direct that the proceeding shall be by indictment, is futile. Is this direction found in relation to any other offence punished by our laws ? It is to be found in a single case only. The act approved the 31st January, 1821, relative to the maliciously killing, or wounding of certain animals, authorizes a proceeding by indictment; and that law is triumphantly invoked to prove, that no offence can be prosecuted in this manner unless the statute expressly authorize it. If this be so, out of upwards of eighty crimes and misdemeanors, only one can be prosecuted criminally ! Such is not the legitimate and fair deduction to be drawn from the provisions of that law. Suppose it had been silent in regard to the manner in which the offences should be prosecuted, could there be a serious question whether an indictment would lie? How are all crimes and misdemeanors to be prosecuted in this State? That question is answered by the constitution, article 6, section 18.
    “In all criminal prosecutions the accused shall have the right of being heard by himself or counsel, of demanding the nature and cause of the accusation against him, of meeting the witnesses face to face, of having compulsory process for obtaining witnesses in his favor, and
      prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage ; nor shall he be compelled to give evidence against himself.”
    It might perhaps be doubted under this provision of the constitution, whether a person accused of an offence could be prosecuted, in this State, in any other way than by indictment or information. At all events, when the law directs no other mode of proceeding, where is the public officer, sworn to support the constitution, who would dare to adopt a different method of prosecution.
    Though the English and other common law authorities are not binding on us in this State in questions of this kind, I will examine the decided cases and authors referred to.
    The first case cited in the opinion of the majority of the court is from 1 Lord Raymond, 682, The President and College of Physicians v. Salmon. The plaintiffs by the name of the President and College or commonalty, &c., brought an action of debt against the defendant for five pounds per month, for having practised physic without license. Among other questions raised in argument, it was contended, “ that debt will not lie, it not being given by the statute, but an information at the suit of the King. Debt is given by 25 Car. 2, c. 2, for the penalties for not having taken the oaths, and usually in all penal statutes. To which it was answered, that when a certain penalty is given by statute, the person to whom &c., shall have debt by construction of law. And the case upon 2 and 3 Edward VI. c. 13, of tith.es is a strong case, the treble value sounding in damages, and not being given in certain to any person by the words of the statute. And the case in Cro. Car. 256, is as the present case is, which was agreed by the court.” It is very clear, that the point here in controversy between the parties was in relation to the form of the action. The right to sue was given in express words to the plaintiffs. It was objected, that the action of debt was not the proper one under the special statute, and that the payment of the penalty should be enforced by an information at the suit of the King. The information spoken of is evidently one of debt, and not a criminal prosecution. The court decided, that when the right to sue for the recovery of the penalty is given by the law, the party can bring the action in his own name; and that the action of debt was correct. The language of Chief Justice Holt is too plain to admit of a doubt. He said “ that the case of debt for tithes upon the statute of Edward VI. was at first a strain because it gave an action of debt, whereas the statute gave but treble damages : but the party should rather have had an action upon the statute.” The idea that an action of debt or any other action could be maintained on a statute which did not authorize the plaintiff’to sue, never presented itself to the mind either of the court or counsel. It cannot be denied then that this case supports, and indeed, fully recognizes the rule for which I contend.
    The next case relied on is that of The Attorney. General v. John Bowman, coram Eyre, C. B. 16th January, 1791. “Upon the trial of an information against the defendant for keeping false weights, and for offering to corrupt ap officer, the defendant’s counsel called a witness to character. The question was, whether the testimony was admissible or not. The court ruled that it was not, on the ground that it was a civil suit brought in pursuanee of the statute for the recovery of the penalty, and ‘ not a prosecution directly for the crimed The pecuniary penalty in this instance, is superadded to the common law punishment of the crime. But the right to sue for the penalty is given by the statute.” The Chief Baron says : “ I cannot admit this evidence in a civil suit. The offence imputed by the information is not iri the shape of a crime. It would be contrary to the true line distinction to admit it, which is this, that in a direct prosecution for a crime, such evidence is admissible; but where the prosecution is not directly for the crime, but for the penalty, as is in this information, it is not. If evidence of character were admissible in such a case as this, it would be necessary to try character in every charge of fraud upon the Excise and Custom House Laws.” It is too plain to be disputed, that the information filed by the Attorney General against Bowman, was an information of debt, in which the penalty was sought to be recovered, in virtue of a special provision of the statute. It is well known, that nearly all suits in the name of the King are brought by information. To suppose that the right to bring a civil suit for the recovery of the penalty is recognized in this case, in the absence of a special provision in the law to that effect, is an egregious mistake.
    The case of Atcheson v. Everitt, 1 Cowper, 382, was an action of debt upon the statute, 2 George II., c. 24, sect. 7, against bribery. That section provides : “ That if any person who shall have or claim to have any right to vote in any election of any member in Parliament, shall ask, receive, or take any money or other reward, by way of gift, loan, or other devise, or agree or contract for any money, gift, office, employment or other reward whatsoever, to give his vote, or to refuse or forbear to give his vote in any such election ; or if any person by himself or any person employed by him, shall by gift or reward, or by any promise, agreement, or security, for any gift or reward, corrupt or procure any person or persons to give his or their vote or votes in any such election, such person so offending in any of the cases aforesaid, shall for every such offence forfeit five hundred pounds ; and such offender after judgment against him in any action, or information, or summary action, or prosecution, or being otherwise lawfully convicted thereof, shall forever be disabled to vote in any election of any member of Parliament, and to hold any office or franchise, as if such person was naturally dead.” 1 Russel on Crimes, 156, et seq. The right to bring an action and to obtain & judgment for the penalty, is given by the statute in express words. But besides the penal action, the party guilty of bribery is subject to be prosecuted criminally. The same author, from whose excellent work on criminal law I have copied the statute of 2 Geo. II. c. 24, $ 7, says: “ It has been holden that notwithstanding this statute, bribery in elections of members to serve in Parliament still remains a crime at common law j that the Legislature never meant to take away the common law crime, but to add a penal action ; and that this appears by the words of the statute — or being otherwise lawfully convicted thereof." I cannot conceive how a question could arise as to the character of the suit brought by Atcheson. It was founded on the express authority of the statute, and its object was to recover the penalty which the defendant was liable to pay independently of the criminal punishment. The payment of the penally could be no protection against a criminal prosecution; and Lord Mansfield very correctly observed, that “ it was as much a civil action as an action for money had and received." But his lordship no where says that a civil action can be maintained on a statute which does not authorize a suit to be instituted for the recovery of the penalty.
    It was idle to cite authorities to prove, “ that the statutes of jeofails and amendments do not extend to criminal proceedings, but that it has been invariably held that penal actions are within those statutes, and may be amended.” Nor was it necessary to refer to adjudged cases for the purpose of showing, “ that in criminal prosecutions no new trial can be granted in case of acquittal ; and that the ruléis different in penal actions.” All this is beyond a doubt, and has never been disputed.
    I come to the case of Üominus Rex v. Malland, from 2 Strange, 828, which is relied on by the counsel for the defendant, and cited in the opinion of the court. With reference to this case the court observes:
    “ In Malland’s case, an indictment to recover a pecuniary penalty, no method being pointed out or prescribed in the statute by which it should be recovered, on demurrer it was held, that an indictment would not lie, and that the proper remedy was debt, to be sued for in the court of revenue and not by indictment.”
    This is not a correct statement of the case. It is true, the objection urged by the counsel for the defendant was, ‘‘ that there is no appropriation of the penalty, nor any method prescribed in which it shall be recovered, though there is as to all the rest.” But the reporter informs us, that “ upon looking into the act, it appeared this offence was omitted out of the clause which gave the Bricklayers Company power to sue for the penalties, and therefore the court held, that the twenty shillings per thousand was in the nature of a debt to the crown, where the unappropriated penalty would go, and was suable for in a court of revenue, and not by indictment.” It appears that the statute 12 Geo. I. c. 35, imposed several penalties with a view of regulating the burning of bricks. All the penalties were for the benefit of the Bricklayers Company for whose encouragement the law was evidently passed, and express power is given to it to sue for the penalties. This then was a penal statute as contradistinguished from a criminal one —the right to sue for the penalties being expressly given ; but the penalty of twenty shillings per thousand for burning place bricks and stock bricks together, was (probably through inadvertency,) omitted in that clause of the act which gave the Bricklayers Company power to sue, and the question was, whether this omission was to change the otherwise undoubted character of the statute under consideration. The court decided that it did not; and that all the unappropriated penalties went to the crown. Besides the burning of place bricks and stock bricks together was not a public xorong, for which reason it might be well doubted whether it could be the subject of an indictment without an express provision to that effect. However that may be, it certainly does not establish the position in support of which it is invoked.
    The cases collected in the 7th volume of the Practical Abridgment of American Common Law Cases recognize the rule, which I never disputed, that when the right to sue is given, without indicating the specific action or remedy, “ debt will lie.”
    In citing the case of Adams v. Woods, 2 Cranch, 336, it is said that Chief Justice Marshall held, “ that almost every fine or forfeiture under a penal statute, might be recovered in an action of debt, as well as by information of debt.” By referring to the case it will be discovered, that the Chief Justice never said any such thing. The case of Adams v. Woods was founded on a penal statute in the true acceptation of that word, the act of Congress passed on the 22d March, 1794, “ to prohibit the carrying on the slave trade from the United States to any foreign place or country,” (1 Story’s Laws U. S. 319 ;) the second section of which provides :
    “ That all and every person building, fitting out, equipping, loading or otherwise preparing or sending away any ship or vessel, knowing or intending that the same shall be employed in the slave trade, contrary to the true intent and meaning of the act, or any ways aiding or abetting therein, shall severally forfeit and pay the sum of $2000; one moiety thereof to the use of the United States, and the other moiety thereof to the use of him or her who shall sue for and prosecute the same.”
    
    To this action the defendant pleaded the prescription of two years, founded upon the 31st section of the act of Congress entitled, “an act for the punishment of certain crimes against the United States,” passed 30th April, 1790. 1 Story’s Laws U. S. 83. On behalf of the plaintiff it was contended, that the limitation only applied to criminal prosecutions ; and did not extend to suits for penalties. The case of Atcheson v. Everitt, and other authorities were cited in support of this distinction. In arguing this point the Chief Justice says :
    “ The words of the act are, ‘ nor shall any person be prosecuted,’ <fcc. It is contended, that the prosecutions limited by this law are those only which are carried on in the form of an indictment or information, and not those where the penalty is demanded by an action of debt.”
    Now what does the Chief Justice mean by the word information in the above paragraph ? Can any one seriously contend that he means “ an information of debt ?” It is too clear to admit of a doubt, that he uses the words “ indictment or informationas methods of criminal prosecution in contradistinction to a civil suit by action of debt. The same words are again used in the next paragraph :
    “ But if the words of the act be examined, they will be found to apply not to any particular mode of proceeding, but generally to any prosecution, trial, or punishment for the offence. It is not declared that no indictment shall be found, or information filed, for any offence not capital, or for any fine or forfeiture under any penal statute, unless the same be instituted within two years after the commission of the offence. In that case the act would be pleadable only in bar of the particular action. But it is declared, that ‘ no person shall be prosecuted, fried or punished’ — words which show an intention not to limit any particular form of action, but to'limit any prosecution whatever.”
    The Chief Justice is evidently using the word in the same acceptation when he says subsequently: “ almost every fine or forfeiture under a penal statute, may be recovered by an action of debt as well as by information ; and to declare that the information was barred while the action of debt was left without limitation, would be to attribute a capriciousness on this subject to the Legislature, which could not be accounted for; and to declare that the law did not apply to cases on which an action of debt is maintainable, would be to overrule express words, and to give the statute almost the same construction which it would receive if one distinct member of the sentence was expunged from it. In this particular case, the statute which enacts the forfeiture does not prescribe the mode of demanding it; consequently, either debt or information would lie. It would be singular if one remedy should be barred and the other left unrestrained.”
    So Chief Justice Marshall was of opinion, that when the statute which creates the forfeiture does not prescribe the mode of demanding it, a criminal information is the proper remedy, which is quite a different thing from what he is made to say, “ that the penalty may be recovered by an action of debt as well as by an information of debt.” And no one will deny, that if I could have filed an ex officio criminal information against Williams, ] could, a fortiori, submit an indictment against him to the grand jury. The latter mode of prosecution is always more satisfactory, and affords additional protection to the accused.
    Let it not be supposed, however, that I claim for the Attorney General the power of converting a civil case into a criminal, prosecution by the mode of proceeding to which resort is had. I contend, that no penal action is maintainable on a statute prohibiting a public wrong, unless the right to sue for the penalty is given by the law itself. The act of Congress and its exposition by the Chief Justice of the United States, affords an additional illustration of the correctness of that position.
    What possible bearing the case of The United States v. Lyman, (1 Mason, 481,) can have on the question under discussion, I am at a loss to conceive. That was an action of debt brought by the United States against the defendant for $17,242 40, being the amount of duties due on five hundred chests of tea imported into the port of Boston, in the ship Alert, in July, 1816. Plea Nil debet. The only question was, whether a personal action for the duties would lie against the importer of the tea, or whether the government ought to have proceeded in rem. Judge Story decided, that the obligation is a personal one, and that the proper remedy for the enforcement of such obligations is by action of debt. He says : “ It has been repeatedly settled, both here and in England, that under such circumstances, the duties are a debt accruing to the government from the time of the actual importation.” Did any one ever suppose that a suit for the payment of duties was a penal action 1 No doubt by the common law, as Judge Story observes, “ an action of debt is the general remedy for the recovery of all sums certain, whether the legal liability arise from a contract or be created by a statute. And the remedy as well lies for the government itself, as for a citizen. And where the debt arises by statute, an action or information of debt is the appropriate remedy, unless a different remedy be prescribed by the statute.” Here the learned Judge lays down the elementary principle that no matter how the obligation to pay a sum certain is created, the remedy is the same, unless a different one be prescribed.
    The last of the “ very numerous authorities cited,'’ is the case of Matthews v. Offley, 3 Sumner’s Reports, 120, et seq. The Vice-Consul of the United States instituted that suit against the defendant, who was master of the ship Gem, to recover the penalty of one hundred dollars, prescribed by the act concerning consuls &c., of the 2Sth February, 1803, for the refusal to take a destitute seaman of the United States on board of his vessel at the port of Smyrna. The 4th section of that law enacts, that the pen
      
      alty shall be sued for and recovered for the benefit of the United States, in any court of the United States. But nothing is said in the act as to the person by whom, or the mode in which, this penalty shall be sued for or recovered. That a penal action could be maintained on that statute no one could deny. The right to sue for and recover the penalty is expressly given. The only difficulty was in relation to the person by whom the sui should be brought, and the form of action which was to be adopted. And Judge Story decided, “ that upon general principles, where a pecuniary penalty or forfeiture is inflicted for any public offence or wrong, it seems clear, that the action to recover the penalty or forfeiture must be brought in the name of the government, and not in the name of any private party, unless some other mode for the recovery is prescribed by some statute ; and the usual remedy in cases of a pecuniary penalty is an action or information of debt by the government itself.” This is a mere repetition of the doctrine recognized in all the other cases. It is too plain to require argument, that when the whole penalty is to be recovered for the benefit of the government, the suit must be instituted in its name, unless some person is specially authorized to sue for its use and benefit. And how could it be questioned that an action of debt was the proper remedy? But suppose the law of Congress had enacted, that every master of a ship or vessel belonging to citizens of the United States who shall refuse to receive destitute seamen when required so to do by the consul, &c., shall on conviction thereof before any court of competent jurisdiction, be fined for each and every such offence in the sum of one hundred dollars, would Judge Story have said one word about an action of debt?
    Does any one of the cases cited establish the position assumed, that a penal action ought to have been brought against Williams under the law of 1817? Most assuredly not. On the contrary the doctrine for which I contend is recognized and illustrated in all of them. There is no penal action unless the right to sue for and recover the penalty be given by the statute.
    The acts of our own Legislature are next invoked for the purpose of proving that Williams should not have been indicted. The first volume of Moreau’s Digest is referred to, at pages 371, 338, 402. The pages referred to are filled with provisions relative to crimes and misdemeanors punishable criminally by fine or imprisonment, or both, at the discretion of the court. No one has ever pretended, that any of the offences there enumerated eould be prosecuted in any other mode than by indictment or information.
    The 37th section of the act of 1806 is cited to show, that it was not the intention of the Legislature that the payment of fines and forfeitures should be enforced by indictment. But a different construction has been given to that section ever since its enactment. The obvious intention of the law-maker was to limit criminal prosecutions. It was considered, that the prescription of minor offences punishable by fine and forfeiture only, ought to be shorter than that of those of a graver character ; and as regards the crimes of wilful murder, arson, robbery, forgery, and counterfeiting, no limitation is established, To infer from this, that crimes and misdemeanors for the commission of which a fine only is inflicted, cannot be prosecuted criminally, is illogical, The very title of the act is indicative of a different intention. Its title is : “ An act for the punishment of crimes and misdemeanors'’ The fallacy of the argument, however, results beyond the possibility of a doubt from the enacting clauses of the law itself. The 7th section provides, that “ If any person or persons shall be accessory after the fact, to any wilful murder, rape, arson, robbery or burglary, he, she, or they so offending, shall, upon conviction thereof, be fined not exceeding five hundred dollars, or receive not exceeding thirty-nine lashes on the bare back.’*
    By a subsequent law the punishment of whipping has been abolished as regards free persons; consequently the only punishment that can be inflicted for the offences enumerated in the section, is a fine not exceeding five hundred dollars. Yet would it not be absurd to say, that those crimes can, for that reason, not be prosecuted criminally ? The 11th section of the same law punishes misprision of felony by fine not exceeding three hundred dollars. Can this offence not be prosecuted criminally 1 The 30th and 32d sections likewise impose a fine for the misdemeanors therein set forth; and to make assurance doubly sure, the 33d section declares, that all “ the crimes, offences and misdemeanors 
      herein before named, shall be taken, intended and construed according to and in conformity with the common law of England; and the forms of indictment, (divested however of unnecessary-prolixity,) the method of trial, the rules of evidence, and all other proceedings whatever in the prosecution of said crimes, offences and misdemeanors, changing what ought to be changed, shall be, except as is by this act otherwise provided for, according to the said common law.”
    All crimes are not prosecuted by indictment, for the act of the 8th of March, 1841, provides, “ that in all criminal prosecutions in the Criminal Court of the First District, for crimes and of-fences punishable by not more than two years hard labor, the proceedings may be by information.” There can be no dispute as to the meaning of the word “ information” here. It is an ex oficio criminal information filed by the Attorney, in the name and by the authority of the State. Nor will it be asserted that larceny is no longer a crime, because “ an indictment or presentment” need not now be found or exhibited against the thief, in the language of the 37th section of the act of 1805. The prosecution spoken of in that section means a criminal prosecution: and not an action of debt on a penal statute. There is no statute in the whole chapter on which a penal action could be instituted.
    There are some, though not many laws, to be found in our statute book on which penal actions can be maintained. When the right to sue for and recover the penalty is given, neither an indictment nor a criminal information is the proper remedy. The fine imposed on an assessor for neglect of duty, is cited as an instance of a penal statute on which no indictment or information could be maintained. But the reason of this is obvious. The statute directs the District Attorney to sue for the payment of •the fine. The case of pedlars and hawkers who neglect to obtain a license, or to exhibit it when required, is to be prosecuted criminally, and not by action or information of debt, as the court seems to suppose. See the 4th section of the act of 22d February, 1820.
    As these offences are punished by both fine and imprisonment, it will hardly be insisted that an information, of debt will lie for them.
    But it is urged, that “ the laws in relation to the inspection of tobacco, flour and other articles, furnish us with many cases where it is not necessary to indict the party to subject' him to the fine or penalty.” An examination of those statutes will show, that the right to sue for the recovery of the penalties is expressly given in all of them. See the 9th section of the act regulating the inspection of flour, beef, and pork, approved May 3d, 1805.
    The argument founded on the “ Bank Law,” by which the corporation and directors are subjected to certain fines and forfeitures for buying, selling, bartering or trading for cotton, sugar, or any other produce, &c., is answered in the same manner.' The 15th section of that law enacts:
    “ That all fines and penalties under this act, shall be sued for, as before provided, and all sums recovered shall be paid over by the Attorney General, less ten per cent for his own services, to the President of the Charity Hospital of New Orleans, for the use of said hospital.”
    There is not a single statute in this, or in any other State of the Union, nor in England, on which a penal action is maintainable when the power to sue for and recover the penalty is not given. The different laws referred to in the opinions delivered by the majority of the court, all of which I have noticed, afford the most decisive proof of this assertion. In every instance the right to sue for and recover the penalty is given in express words. It has already been shown, that the act of 1817 contains no provision of that kind. On the contrary, the language in-which it is expressed excludes the idea of any suit. There is to be a prosecution and a conviction ; and the fine and forfeiture of the slaves constitute the sanction of the law.
    It is said that the obligation of the defendant to pay the fine, is merely a civil one, which he might have extinguished by payment. This would probably be correct, if the statute on which the prosecution is based had authorized the institution of a suit.
    It is just as unreasonable to say, that the fine imposed by the law of 1817 is a debt and may be extinguished by payment before prosecution and conviction, as it would be for the forger or robber to present himself to the warden of the penitentiary, and offer to undergo the punishment prescribed by law for the crime of which he had been guilty, without being either prosecuted or convicted. If the keeper of the penitentiary was to admit an individual under such circumstances, the prisoner could, of course, obtain his release at any time by a habeas corpus. And if the Treasurer, or any other officer of the State, were to receive a fine to be inflicted on the conviction of an offence, before the offender had been prosecuted and convicted, can it be doubted, that the party would have the right to compel the officer to refund the amount on the ground that no debt existed when the money was paid 1 The debt arises from the conviction. And it would be no defence for the Treasurer to say that the party admitted his guilt. If it is a mere civil debt, why, in case of non-payment, on conviction, is the offender to be imprisoned for a period not exceeding one year. See the 10th section of the act of 1818. 1 Bullard & Curry’s Digest, 260. The punishment of imprisonment is substituted for the fine when the accused is unable or unwilling to pay it; and yet we are gravely told that it is a mere civil obligation to be enforced by a civil suit.
    That the importation into this State of slaves convicted of the felonies enumerated in the act of 1817, is a serious public wrong, is not denied. Now this “ matter of public grievance to the liberties ancl security of the citizens,” is prohibited by the law under which Williams was indicted; anda punishment is annexed for the violation of its provisions. The court has observed, that “ if the Legislature merely prohibits the doing of an act, and annexes no punishment to the doing of it, no one is punishable for violating it.” I would ask whether this is not “ a negative pregnant with an affirmative ?” I conclude that, according to the course of reasoning adopted by the majority of the court, the statute creates a crime or misdemeanor.
    I have never contended, “ that an indictment would lie in this case on the principle that when a new offence is created by an act of Parliament, and a penalty is annexed to it by a separate clause, the prosecutor is not bound to sue for the penalty, but may proceed to indict on the prior clause for a misdemeanor.” I observed incidentally, that according to the authorities cited, an indictment may lie on the prohibitory clause of even a penal statute expressly authorizing the institution of a suit for the recovery of the penalty; but not that such was the law in this State. What I insisted upon was, that the rule as laid down by Hawkins was the correct one. He says :
    
      “ Also it seems to be a good general ground, that whenever a statute prohibits a matter of public grievance to the liberties and security of the subject, or commands a matter of public convenience, as the repairing of the common streets of a town, an offender against such statute is punishable, not only at the suit of the party aggrieved, but also by way of indictment for his contempt of the statute, unless such method of proceeding do manifestly appear to be excluded by it.”
    
      “ Also where a statute makes a new offence, which was in no way prohibited by the common law, and appoints a particular manner of proceeding against the offender, as by commitment or action of debt, or information, &c., without mentioning an indictment, it seems to be settled at this day, that it will not maintain an indictment, because the mentioning the other methods of proceeding only, seem impliedly to exclude that of indictment. Yet it hath been adjudged, that if such statute give a recovery by action of debt, bill, plaint, information, or otherwise, it authorizes a proceeding by way of indictment. Also where a statute adds a further penalty to an offence prohibited by the common law, there can be no doubt but that the offender may still be indicted, if the prosecutor think fit, at the common law.”
    
      R. Hunt and Grymes, contra.
    The counsel for the State declares, that the authorities cited by the court only establish two principles, which he has always admitted. “ 1st. That penal actions, are civil suits ; and 2d. that an indictment is not the proper remedy on a penal statute for the recovery of the penalty, unless that mode of proceeding is pointed out by law.” Now, the authorities were cited by the court, to sustain the doctrine laid down by Judge Martin in his opinion : “ That at common law, a penal action or action to recover a penalty, is a civil suit. The usual remedy in cases of a pecuniary penalty, is an action or information of debt. An indictment will not lie for such a penalty, unless specially allowed by statute ; for, it is properly recoverable as a debt; and is in no just sense, a criminal proceeding.” The Attorney General therefore, clearly admits the soundness of the conclusions of the court thus far. But he says, “ there has not been a single argument offered by the majority of the court, to show that in this case, the action should be a civil one ;” and he asserts, that “ it is taken for granted, that nothing but a penal action is given by the act of 1817, without a single argument being offered in support of that position.”
    Is this so? The act of 1817 subjects any person who shall bring certain slaves into this Slate, to a penalty of $500, for each and every such slave, &c. It provides no corporal or other punishment for the violation of this provision, but affixes merely a pecuniary mulct or penalty to the transgression of the law. n The statute upon which this prosecution was based,” says Judge Martin in his opinion, “ is purely penal. Nothing is inflicted by it but a pecuniary penalty, or fine : — no imprisonment — no punishment : — nothing but a certain, definite, fixed pecuniary penalty.” Having thus decided, that the statute of 1817 is purely penal, and provides merely a pecuniary mulct or penalty for its violation; that according.to the Attorney General’s own admission, “ an indictment will not lie for such a penalty, unless specially allowed by statute;” and perceiving that no such allowance is made in the act of 1817, or any other statute of this State ; the court concluded, that an indictment would not lie for the recovery of the penalty under the act of 1817. Again, the Attorney General admits that this court has correctly determined, that an action to recover a penalty is a civil action. The court has further determined, that under the act of 1817, a pecuniary penalty alone can be recovered : surely'it necessarily follows, that the action to recover the penalty must be a civil action ; and yet the Attorney General says, “ it is taken for granted, that nothing but a penal action is given by the act of 1817, without a single argument being offered in support of that position.” And here in truth the whole case ends. The proceedings against Williams were, from beginning to end, criminal proceedings, informal, erroneous and illegal.
    But the Attorney General says : “ I contend that it is an undeniable proposition that no penal action, or suit for the recovery of a penalty can be maintained, unless the authority to sue for it, or to recover it, is expressly given by the statute on which the action is founded. In other words, the party who brings a penal action must show his authority to sue, by a provision in the law to that effect,” &c. The whole argument of the Attorney General goes only to this extent, that a penal action will not lie, unless express authority is given to sue, totidem verbis. Supposing this to be true, it would not follow that an indictment or criminal action would lie for the recovery of the penalty. Indeed the Attorney General in the opening of his argument, admits that it would not lie ; and, therefore, his proposition, if correct, would not prove his proceedings in this case to be legal.
    But the proposition of the Attorney General is not supported by any authority, and is erroneous. His error consists in the notion, that a qui tam action is the only mode of recovering a penalty civiliter. A few words will dissipate the error.
    Wherever a statute prohibits a thing, as being an immediate offence against the public good in general, under a certain penalty ; the statute is a penal statute.
    Wherever a part or the whole of the penalty is given to him who will sue for it, any person may bring such action or suit and lay his demand, (according to the common law, tam pro domino rege, quam pro seipso;) and this action is a qui tam action. “ But without such penalty or part of it be given, no person can sue ; (2 And. 127. 2 Jones, 234. 2 Hawk. P. C. 377;) for the whole penalty goes to the King. 2 East, 569. 3 Bos. & Pul. 382. 5 East, 313. It hath been determined however, that where an informer, entitled to no part of the penalty, sues for the King and himself, the information is not void, but the whole shall be adjudged to the King. Parker, 105. Hardr. 185.” Bac. Abr. Tit. Actions qui tam, (A) in notes.
    Admitting that no ordinary individual can sue to recover a penalty by a penal action, unless the statute creating the penalty authorizes him to do so ; it is equally clear,- that where a statute prohibits a thing under a certain pecuniary penalty, without making any appropriation of the penalty, the unappropriated penalty goes to the Grown in England, or to the State in this country ; and if nothing is said as to the recovery, it must be sued for in a court of revenue, and not by indictment.
    This is fully supported by the authorities relied on in the opinion of the court. For instance, take the case of Dominus Rex V, Malland. The report of that case in 2 Strange, 828, is in these words:
    “ Indictment on the statute of the late King, 12 Geo. I. c. 35, for burning place bricks and slock bricks together. And on demurrer, it was objected by Mr. Fazekerly, that in this particular instance, though a penalty of 20s. per thousand was given, yet there is no appropriation of it, or any method proscribed in which it shall be recovered, though there is, as to all the rest. And in looking into the act, it appeared this offence was omitted out of the clause which gave the Bricklayers Company power to sue for the penalties; and therefore the court held, that the 20s. per thousand was in the nature of a debt to the Crown, where the unappropriated penalty would go, and was suable for in a court" of revenue, and not by indictment. Though Strange cited 1 Mod. 34, 1 "Vent. 63, and insisted that the 20s. .ought to be the measure of the fine upon the. indictment. Judicium pro def.n
    
    Here there was a penalty prescribed by a statute ; there was no. express power or authority to sue given to any person or corparation; being unappropriated, the penalty belonged to the Crown. The court decided that it might be sued for by the King in a court of revenue, and not by indiciment.
    In Barnardistone, K. B. 108, on an indictment on the same statute, Mr. Reeves is r'eported to have said, that the bricklayers had the right to sue by the statute, and that therefore the indictment was wrong. “ The court,” adds the reporter, “ did notenter into that exception, but said they thought it bad upon another : because an indiciment does not seem a proper remedy, to recover a penalty given to the King by an act of Parliament. They thought this proper only for a prosecution in the Exchequer; so arrested the judgment.”
    In Yiner’s Abridgment, tit. Statutes, (E. 6,) Construction of Statutes, the same law is clearly laid down. “ (75) Where an act of Parliament gives a particular penalty, the party shall not be punished by indictment. (6 Mod. 86.)” “ (77) Where an act of Parliament gives a penalty to the King for doing such an act, and does not make it an offence indictable, the party ought to be sued in the Exchequer for the penalty, as for a duty vested in the Crown, but is not therefore indictable. Gilb. 47. The King v.Manning.”
    . “ IS here a thing is prohibited by statute under a penalty, if the penalty or part of it be not given to him who will sue for the same, it goes and belongs to the King. 2 Hawk. P. C. c. 26, § 17. Rast. Entr. 433.”
    “Every statute made against an injury, gives a remedy by action expressly, or impliedly. 2 Inst. 55, 74.”
    “ Wherever a matter concerns the public government, and no particular person is entitled to an action, there an action will lie for the King. 1 Salk. 374.”
    “ If there be no appropriation of a statute penalty, it is a debt due to the King, and suable in a court of revenue and not by indictment. Yiner’s Abr. Statutes. General Principles, art. 1, ch, 196, s. 37.”
    “ 10 Co. 75. An action is a consequent, and a thing implied in everything prohibited by a statute. 2 Inst. 159.”
    “Wherever a penalty is given by a statute, but no suit, debt lies for this penalty. __ Yiner’s Abr. Statutes. General Principles,, art. 6, ch. 196, s. 3. ' Welden v. Vesey, Poph. 175.”
    All these authorities show, that wherever an act is prohibited under a certain penalty, and the penalty is unappropriated, and no particular mode of recovering it,is pointed out by statute, the penalty belongs to the State, which may sue for the same in a penal action, although the statute does not expressly state this.
    Salmon’s case, (1 Lord Raymond, 64,) was cited by the court to show that a civil action, debt, would lie to recover the penalty affixed by statute, 14 Hen. YIII. c. 5, to practising physic, without a license. The Attorney General says: “ The language of Chief Justice Holt, is too plain, to admit of a doubt. He said that the case of debt, for tithes upon the statute of Edward YI. was at first a strain ; because it gave an action of debt, whereas the statute gave but treble damages ; but the party should rather have had an action upon the statute.”
    Nothing in Holt’s language is intended to intimate that a criminal action or indictment should hare been resorted to. Holt considered debt a strain, because debt was the proper action to recover a sum certain; a liquidated, definite amount; while the 'statute gave but treble damages, a sum uncertain and to be assessed : and therefore he thought the party should rather have had “ an dction upon the statute a different, but still a civil action; not an indictment, a criminal prosecution, as the Attorney General erroneously infers. '
    But it is asserted, that the right to sue was expressly given to the plaintiffs in Salmon’s case, by the statute. This is a mistake. The statute gave one-half the penalty to the King, and the other half to the College of- Physicians. Being entitled to one-half of the penalty, although there is no express, specific declaration in the statute, that the college should have a right to sue for the penalty, the law necessarily implied that the college had that right. Comyn, in his Digest, verbo, Debt, A. (1), says : “ Debt lies upon every contract in deed or in law. As, if an act of Parliament gives a penalty, and does not say to whom, nor by what action it shall be recovered, an action of debt lies upon such statute by the party grieved : as upon the statute, 14 Hen. VIII. c. 6, (the very statute referred to in Salmon’s case,) that every practiser of physic in London, without a license, shall forfeit £5 a month, a moiety to the King, and a moiety to the College of Physicians.”
    The Attorney General asserts, that “ Chief Justice Marshall never said, that almost every fine and forfeiture under a penal statute, may be recovered in an action, or an information of debt.” And yet these are the very words of that illustrious Judge, used by him in the case of Adams v. Woods, 2 Cranch, 339.
    
    The Attorney General is at a loss to conceive, what possible bearing the case of L3?man can have on the question now before the court. The court quoted that case for the great principle which pervades it, and which is applicable to the point now before us, viz., that where a debt of a sum certain, arises by statute, an action or information of debt is the appropriate remedy to recover it, unless some other remedy is prescribed by the statute ; (1 Mason’s Rep. 498 ;) or, to use the language of Judge Story himself, on another occasion. “1 take it to be clear that an information of debt in the Exchequer for a penalty, is as much a civil proceeding as an action of debt. Without question, all infractions of public laws, are offences; and it is the mode of prosecution which ordinarily distinguishes penal statutes from criminal statutes. It is laid down as law in Rex v. Malland, (2 Str. 828,) that where a pecuniary penalty is annexed to an of-fence, and no mode of prosecution is prescribed, an indictment does not lie thereon ; but only an information of debt in the Exchequer. Yet it seems to be admitted, that the Court of Exchequer has no criminal jurisdiction; and, therefore, if the offence had been simply prohibited without annexing a penalty, the King’s Bench, and not the Exchequer, would have had jurisdiction to punish.”
    This reasoning answers the labored argument of the Attorney General, that “ Williams has been guilty of a crime and offence by the infraction of a public law” It is exactly, because it is for an offenee against the public law, that the penalty in the act of 1817 is given to the State. In 2 Vent. 268, C. B. the court held, that “ penalties were given to the King for the public good, and interest of the government, as well as for the King’s treasure. There is no exception out of this construction upon penal statutes, unless they are in recompense for the damage suffered by a subject, &c.' And this follows the reason of the common law, that fines, and penalties for offences at law, go to the King, as the head of the government; and that was the second reason the court went upon, that the offence was principally against the King, it being against the administration of justice. This is indeed the case of all crimes of a public nature. The King is most evidently injured by them. Now who should have the forfeiture, or penalty, but he that has the greatest share in the injury.” In the case of Thornby v. Fleetwood, l.Comyn’s Rep. 210, Chief Justice Trevor, delivering the unanimous opinion of the Court of Common Pleas, says: “ When an act of Parliament gives a forfeiture, and does not say who shall have it, if it be for a public crime and offence against the government, the law will give it to the King; for though for a private wrong, the penalty may sometimes, by way of recompense, belong to the party grieved, yet for a public offence, the law will give it to the King, as the head of the public ; so it was resolved in 2 Yent. 268. 3 Lev. 289. Sid. 14S, 86.”
    Apply the reasoning of Judge Story, to the case of Williams, and it will run thus : Williams’ infraction of the law of 1S17— if there was any such infraction — was doubtless an offence. Without question, all infractions of public laws are offences ; but it is the well established law of the land, that where a pecuniary penalty is annexed to an offence, and no mode of prosecution is prescribed, an indictment does not lie thereon ; but only a civil action : in other words, to use the very language of Judge Martin in this case, “ where a statute is purely penal; where nothing is inflicted by it but a pecuniary penalty or fine; no imprisonment, no punishment, nothing but a fixed, definite, pecuniary penalty; and no mode of prosecution is prescribed, an indictment does not lie, but only a civil action to recover the penalty.”
    The Attorney General in his review of the authorities cited by the court, passes, sub silentio, the case of Marquand, (2 Gallis. Rep. 554.) But its language is too important to remain unnoticed, especially as the following portion of it, fully supports the opinion of the court: “ at common law, wherever a penalty is given, and no appropriation or method of recovery is prescribed by the act, an action or information of debt lies, and not an indictment.”
    The Attorney General attempts to show that the case of Matthews v. Offley, (3 Sumner’s Rep. 120, 121,) quoted by Judge Martin, has no bearing upon the point before the court. But the direct applicability of the principles contained in the following extract from Judge Story’s decision in that case, will be at once perceived : “ Upon general principles, where a pecuniary penalty or forfeiture is inflicted for any public offence or wrong, it seems clear, that the action to recover the penalty or forfeiture must be brought in the name of the government, and not in the name of any private party, unless some other mode for the recovery is prescribed by some statute; and the usual remedy in cases of a pecuniary penalty, is an action or information of debt by the go-' vernment itself. This is the rule of the common law; and therefore it has been held, that, a suit will not lie by a common informer for such a penalty, unless power is given to him for that purpose by statute ; neither will an indictment lie for such a penalty, unless also specially allowed by statute; for it is properly recoverable as a debt, in a court of revenue by the government ; ■and is in no just sense a criminal proceeding.”
    Apply this to Williams’ case: By our statute, a pecuniary forfeiture or penalty is inflicted for the public offence or wrong of bringing a convict slave here ; no mode to recover the penalty is pointed out, and no indictment is specially allowed by statute. An indictment, therefore, will not lie ; the penalty is recoverable as a debt in the civil courts, and is in no just sense a criminal proceeding.
    The Attorney General has not cited a solitary case to show that an indictment would be a proper remedy in the case before the court.
    A re-hearing having been granted, Martin and Garland, Judges, adhered to the opinions originally pronounced by them.
    
      
       In the original manuscripts of the constitution, the word in occurs between the words “ and” and “prosecutionsso that this article of the constitution reads— “ the accused shall have the right, &c., of having compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial,” &.c. The argument of the Attorney General, appears to be based on this erroneous reading. The restitution of the word in shows that this article has been misapprehended. — Repórter.
    
   Bullard, J.

My opinion remains unchanged by the new arguments adduced for the defendant; and I think the appeal ought to be dismissed, for the reasons stated in my first opinion.

Morphy, J.

" When this case was last before the court, I concurred in the opinion entertained by a majority of my colleagues ; but further reflection having brought me to a different conclusion, it is proper that I should state briefly the grounds on-which it rests. I deem it unnecessary to go into the inquiry, whether this court can constitutionally exercise appellate criminal jurisdiction. My individual impression has always been, and still is, that the terms of the constitution are not clearly exclusive of' such jurisdiction: but, at the same time, I think, that after the' repeated decisions of this court, the question can no more be considered as an open one. The Legislature, moreover, have never made any provision for the exercise of criminal jurisdiction by this tribunal, and have lately established a Court of Appeals in Criminal Cases. The only ground then on which we can entertain this appeal must be, that the present is a civil case, and should have been prosecuted as such. It is admitted, on all hands, that penal actions are civil suits, and cannot be carried on by indictment, unless that mode of proceeding^ pointed out by the-statute denouncing the fine or penalty. But the question here, is,' whether the act of 1817, under which Williams has been indicted, creates a crime or misdemeanor punishable criminally, and to be prosecuted by information or indictment; or whether that law only gives a penal action, in the legal acceptation of the term ; in other words, whether it is a penal statute as contradistinguished from a criminal law.

The statute enacts: “That no slave shall be imported or brought into this, State, who shall have been convicted of the. crimes of murder, rape, arson, manslaughter, attempt to murddr, burglary, or having raised or attempted to raise an insurrection among the slaves in any State of the Union, or elsewhere ; and, if any such should be, they shall, on conviction thereof, be seized and sold, for cash, to-the highest bidder, after fifteen days notice of time and place of sale, one-half of the purchase money to be applied to the use of the State, and the other half to the informer ; and any person who shall import or bring into the State such slaves, knowing that they have been convicted of any of the above mentioned crimes, shall, upon conviction before any court of competent jurisdiction, be fined for each and every such slave in the sum of five hundred dollars, one-half to be applied to the use of the State, and the other half to the use of the informer.”

It has not been,'nor-can it be pretended, that the importation into this State of slaves convicted of any of the felonies enumerated in this law, is not a serious public wrong, or offence. The inquiry then is, how should it have been prosecuted under our laws. The Legislature have provided, that all prosecutions for capital or infamous crimes, or offences punishable by imprisonment at hard labor, shall be by indictment duly found by a grand jury ; and prosecutions for all other offences may be by information. B. & C.’s Dig. 197, § 42. This law has been so far amended by an act approved March 8th, 1841, that in all criminal prosecutions in the Criminal Court of the First District for crimes punishable by not more than two years hard labor, the proceedings may be by information. These enactments entirely do away with all the difficulties which exist in the common law. States, as to what matters are indictable or not. We have in this State no common law offences punishable with fine and imprisonment ; with us, all crimes and misdemeanors must be created by statute, and can only be punished in the manner provided for bylaw. If the Legislature merely prohibits an act without annexing a punishment for doing it, no one is punishable for having done the act. As to the manner of prosecuting offences against the criminal laws of the State, it is regulated, as we have seen, according to the degree of punishment inflicted for their commission. If our statutes are examined, it will be found that there are many offences not punishable otherwise than by fines; and that the word punishment is not unfrequently used in reference to the infliction of such fines. It will be further found, that in some instances the sanction of the law is a fine or an imprisonment, or both, at the discretion of the court; and that whenever the fine is not paid, the punishment of imprisonment for a period not exceeding one year, is substituted in lieu of it. B. &, C’s. Dig. 247, 248, 259, 260, 510, 548. Acts of 1842, p. 260. From all these provisions of our laws, it is fair and reasonable to infer, that all offences for which an indictment is not required, may be prosecuted by information, whether the punishment denounced for their commission be fine, imprisonment, or both. If an ex officio information could have been filed against Williams, the Attorney General could, a fortiori, submit an indictment against him to a grand jury, as the latter mode of proceeding is considered as affording greater security to the accused.

Blackstone tells us, that “ Informations are of two sorts: first, those which are partly at the suit of the King, and partly at that of a subject: and secondly, such as are only in the name of the King. The former are usually brought upon penal statutes, which inflict a penalty upon conviction of the offender, one part to the nse of the King, and another to the use of the informer, and are a sort of qni tam actions (the nature of which was explained in a former volume) only carried, on by a criminal instead of a civil process.” 4 Black. 308. 3 Black. 160. We find also in Chitty, that criminal informations are to be filed on particular acts of Parliament, which inflict a penalty upon conviction, one-half to the use of the King, and the other to the use of the informer. He also calls these informations a sort of penal action, only carried on by criminal instead of civil process. 1 Ohitty’s Criminal Law, 137. These authorities, which stand deservedly high, appear fully to sustain the course pursued by the Attorney General. They show, that it is not enough that a pecuniary penalty be of a sum certain, or that a part of it be given to the King, and the other half to an informer, to justify a suit, either on the part of the King, or on the part of a common informer. If a statute imposing a fine does not authorize its recovery by action of debt, bill, plaint, or information of debt, but merely denounces such fine or penalty to be paid by the offender on conviction, the law is properly a criminal one, and the offender must be prosecuted by information. The fine, in such a case, is the consequence of and follows the conviction, and is to be applied when recovered, in the manner pointed out by the statute. It is the mode of prosecution which ordinarily distinguishes penal statutes from criminal laws, because most penal statutes direct that the penalty may be recovered by action or information; but when the right to sue for and recover the penalty is not given,' the mode of prosecution is the same as under any other criminal law. Thus Blackstone and Chitty call an information on statutes which inflict a fine or penalty upon conviction of the offender, a sort of qui tam action to be carried on by a criminal process, in contradistinction to qui tam actions properly speaking, which are civil suits, authorized generally by penal statutes.

The Attorney General contends, that no penal action or suit for the recovery of a penalty can be maintained, unless the authority to sue for it or to recover it, is expressly given by the statute on which the action was founded. In this position he appears to be fully supported by 3 Blacks. 160. Bacon’s Abridg. verbo, Actions, qui tam. 2 Hawkins, ch. 26, p. 104. This last writer says ; “ I take it for granted that they (qui tam actions) lie on no statute which prohibits a thing as being an immediate offence against the public good in general under a certain penalty, unless the whole or part of such penalty be expressly given to him who will sue for it, because, otherwise, it goes to the King, and nothing can be demanded by the party; but where such statute gives any part of such penalty to him who will sue for it by action or information, &c., I take it to be settled at this day, that any one may bring such action or informalion, and lay his demand tarn fro domino rege quam fro seif so.”

In the latter case the King may himself bring the suit; but if any one of his subjects has commenced it before him, he cannot maintain it. The several decisions relied on by the defendant’s counsel do not contradict, but rather support this doctrine. They will on examination, be found to be based on statutes giving in express terms, the right to sue for and recover the penalty. In some of these cases the question was only as to the form of the action to be resorted to, when the right to sue for the penalty is given. These decisions show, that it is well settled that an action of debt is the proper remedy, but none of them establish that when, as in the present case, a statute prohibits an act under a pecuniary penalty to be paid by the offender on conviction, without giving the right to sue for the recovery of such penalty, an action or information of debt lies. It has been urged that, admitting it to be clear that no ordinary individual can sue to recover a penalty by a penal action, unless the statute creating the penalty authorizes him to do so, yet, where a statute prohibits a thing under a certain pecuniary penalty, without making any appropriation of the penalty, the unappropriated penalty goes to the Crown in England, and if nothing is said as to the recovery, that it must be sued for in a court of revenue, and not by indictment. Admitting that the authorities quoted in support of this position show that such is the common law doctrine on the subject, which is by no means clear, it appears to me, that we must be governed by those provisions of our own laws which prescribe the manner in which crimes and offences are to be prosecuted in this State, whatever be the punishment affixed to them, unless the statute imposing a fine for the violation of a public law authorizes its recovery by a penal action or civil suit. The distinction between criminal laws and penal statutes is clearly marked in our legislative enactments, although the statutes on which penal actions can be brought are not very numerous. They will be found in the inspection laws, in the laws in relation to lotteries, ferries, &c. B. & C.’s Dig. 501 to 506, 548. 1 Moreau’s Dig. 477 to 493. In these laws the right to sue for and recover the penalty is allowed to the party aggrieved,, to a common informer, or to the State. The act of 1S32, giving civil jurisdiction to the Criminal Court of the First District, and allowing an appeal to this tribunal, was no doubt intended to apply to suits brought under these laws; but not to prosecutions which are directed by law to be carried on by information, but which may be also by indictment, if the public prosecutor see fit to adopt that proceeding, which is more favorable to the accused. The act of 1817 is criminal law. It contains no provision for the recovery of the fine by suit; its language excludes the idea of a civil proceeding, as it imposes the fine upon the conviction'of the offender, and orders it to be applied-one-half to the use of the State, and one-half to the use of the informer. The word informer in this law, evidently means an informer in a criminal prosecution, who gives information to the proper officers of the commission of the offence. If the fine which is imposed as a punishment for the violation of the act be not paid, the law substitutes in lieu of it that of imprisonment for a period not exceeding one year. B. &. C.’s Dig. 260, § 10. How, then, can the obligation to pay this fine be said to be a mere civil debt, for which, under our present laws no imprisonment exists ? If it can at all be viewed as a debt, it is one which only arises from the conviction of the offender, and for which he is not legally bound until such conviction. It can, moreover, be discharged by the imprisonment provided for in case of non-payment, while an ordinary debt was not extinguished by the imprisonment of the debtor, when that harsh remedy was allowed by our laws. In treating of the different kinds of punishment known to the law, Chitty remarks: “ That fines are the lowest species of punishment which courts of justice have power to inflict.” “ That when an act of Parliament directs a fine at the will of the King, this is always understood to mean at the discretion of the judges, and they fix it at their pleasure within constitutional boundaries; but when the statute specifies the sum to be forfeited, the courts have no power to mitigate it after conviction.” He concludes by saying, that “ it should seem that the defendant is not entitled to his discharge from imprisonment in respect of such fine, on the ground of his being an insolvent debtor, as it is not a debt, but .a punishment for a crime.”

As relates to the forfeiture of the slaves, admitting, as it is contended, that the proceeding should have been by civil process, and that there is error in the sentence passed upon Williams, so far as it decrees such forfeiture upon an indictment founded on that part of the statute imposing the fine, such an error cannot authorize us to revise the sentence of the Criminal Court. If, in relation to the slaves, the proceeding was coram non judice, the sentence has not impaired the defendant’s title and right of ownership in them. I am, therefore, of opinion, that the motion to dismiss filed by the Attorney General should prevail.

Simon, J.

The important question which this case presents, having been fully investigated on a re-hearing, a further attentive consideration thereof has brought me to a different conclusion from that which I had heretofore adopted. I am now firmly, of opinion, that the Legislature intended by the enactment of the act of the 29th of January, 1817, under whieh the defendant was indicted, to create a crime or misdemeanor punishable criminally. The penalty or fine imposed upon the defendant upon conviction, in default of the payment or the recovery of which, the convicted party, under the act of the 19th of March, 1818, is to be imprisoned for a period not exceeding one year, cannot, in my opinion, be made the subject of a penal action by civil suit; it must be prosecuted by an indictment or information. Without entering into any further discussion of the question, which, I must confess, appeared to me at the outset to be a very doubtful one, I deem it sufficient to refer to the reasons adduced, and the authorities cited' by my colleague Judge Morphy, whose views I have adopted, and to conclude with him, that the present appeal ought to be dismissed.

Appeal dismissed.  