tion of the offense contained in the first section of the penitentiary act, had been followed out in the twelfth section which annexes the punishment, that the indictment might be sustained; but there is a material, and, in my view, a fatal variance. The first section contemplates the prohibition of, and the punishment for, keeping a faro-bank, or other common gaming-table; and had any subsequent section pursued this description, and followed it with a specific punishment for the offense, the case might have been sufficiently clear, and the offense sufficiently set out to sustain the present indictment; but what is the offense set out in the twelfth section? It is the keeping a faro-bank, or gamingtable; now here is a material and most imporant distinction. If the words, or gaming-table," can, by any reasonable interpretation and rules of construction, admit of an intention in Congress to have made penal the keeping of any kind of gaming-table, other than a faro-bank, which I can not admit however; then we see an utter want of harmony between the offense set out in the twelfth section, and the one contemplated as a subject of subsequent specific legislation in the first section. They (Congress) omitted, in the twelfth section to make provision for the offense as set out in the first section; it is a causus omissus, and must be supplied, if deemed proper or necessary, by future legislation. The act is carelessly drawn, which is manifest in another instance; the first section, in enumerating the offenses to be provided for in the subsequent sections, mentions, among them, petty larceny; if this means any thing, it must mean petty larceny as a description of offense then well known and settled. Still you find nothing of petty larceny in the subsequent provisions; the law makes, or creates a new constructive petty larceny, extending the sum necessary to constitute it far above the amount necessary to constitute petty larceny at the time of the passage of the act; it is true they have fixed a sum, the stealing under or over which makes the punishment penitentiary confinement, or only fine and imprisonment in the common jail; here is another casus omissus, for the crime or offense called petty larceny, although enumerated in the first section as one of the offenses to be specifically punished, is not afterwards mentioned throughout the law.

But to return: for what offense of gaming is punishment actually (not contemplatively) provided for? Why the keeping a faro bank or gaming table; and what is the difference, it may be asked? I answer substantial, essential, and most important; that characteristic word "common " is wanted; a word which alone gives existence, I may say vitality, to the offense; in which alone lurks the poison baneful to society, which is an essential and indispensable element of every nuisance; without which the same act is no nuisance. Common, means, in the sense in which it is used in the first section, public, and common sense,

too; and so it will be found in the best expounders of the meaning of words. There is another important word also, in setting out the offense intended, or rather contemplated to be specifically animadverted on, in the subsequent section; namely, the word "other." Now, this word, other, so separates and disunites the subsequent words, common gaming-table, from the preceding words, faro-bank, as to leave no doubt ' that other common gaming-tables than faro-banks, were in the contemplation of Congress to be prohibited, and the keeping of them punished; but there is no punishment provided for them; had the twelfth section gone to the extent of the first, no doubt could exist, I should think, as at present advised, that they would have embraced sweat-cloths or tables, among the prohibited games. But I give no opinion as to this, because there is enough to arrest the judgment without considering particularly the result of an accordance between the crimes contemplated to be punished and those actually punished.

Again, shall it be said (as I think I heard intimated), that the first and twelfth sections may be taken together, and the defects in the twelfth may be supplied, and the meaning and intention of the Legislature gathered therefrom. How is this? Because in the first section they denounce the keeping of a common gaming-table, and neglect afterwards to provide any punishment for it, shall we be bold enough to send any one to the penitentiary for keeping a common gamingtable? I have read of preambles affording a clue to unravel a doubtful meaning as to the sense of subsequent enactments in the same statute, by affording a view of the policy of the statute, and the public evil intended to be remedied by it; but I never heard of their being actual enactments, or as supplying the place of them. If a statute were to propose to punish any offense, and to denounce it with all the terms of reprobation which ingenuity could invent, or the enormity of the offense about to be punished could justify, still if the Legislature omitted to carry its denunciations into effect, the law would be of no avail. But can you, from the preamble, supply, in the prohibitory and actual penal enactment, the very gist and essence of the crime? Can the words in the twelfth section "faro-bank or gaming-table," be made, with the help of the first section, to be equivalent with "faro-bank or other common gaming-table?" The first section declares that the keeper of a faro-bank or other common gaming-table, "shall be sentenced to suffer punishment by imprisonment and labor in the penitentiary,” etc., "for the time and times hereinafter prescribed." Well, through the whole law you find this crime not noticed; but in the twelfth section it is true that there is a definition of crime something like it; something akin to it, but falling far short of it in essential characteristics, which is punished by confinement, etc., and these important charac

teristics may be supplied, we are told, from the first section. What! supply the only word which is essential? which is the soul of the crime; in which alone the public weal could be concerned, namely, publicity? Who will say, that when the law is advanced as far as the twelfth section, the framers of it might not have changed their intention, and softened the severity of the contemplated provision in the first section? All that the first section shows is, that they did intend to punish a certain crime, but this intention is not carried into effect; but the only offense like this one actually provided for, is a different one in substance and essence. To say the best of it, perhaps, is to say that the Legislature overlooked it; it is a casus omissus. Let us now come to the twelfth section as it stands in its crippled condition, not propped up by the first section. What do the words "keeping a faro-bank or gamingtable," mean. In my opinion they mean only a gaming-table called a faro-bank, and no other kind of gaming-table. Now, let it be considered that faro-bank is no term known to our laws; there is no certain, legal, or established technical meaning attached to the term. Had the words faro-bank stood alone as desigating the offense, it might be very equivocal, whether some other bank than a gaming-bank might not be intended. When a new offense is about to be punished, circumlocution is used to describe it; and as the words faro-bank were used as descriptive of the offense, it was reasonable to make it more certain by adding the words, after the disjunctive "or," "gaming-table," to put it beyond all uncertainty, and that a gaming-table vulgarly denominated a faro-bank, was intended to be the subject of animadversion. Now, as to the denomination, the act of Maryland, 1797,1 uses the word faro-table, and declares it to be one of the devices used for gaming; and this term, and not faro-bank, was know to the law as a gamingtable, and had it been used instead of faro-bank, there might have been less necessity for those explanatory words, "or gaming-table."

If arson, rape, robbery, or perjury are the subjects of legislative prohibition or punishment, they per se ex vi terminorum are descriptive of the offense, and sufficiently certain. They carry with them and in them a full and perfect exposition or definition of the offense; no explanatory words or circumlocution are necessary; but where shall we look for the meaning and technical offense inherent in the words farobank? Suppose a prosecution commenced for keeping a faro-bank; would it not be a preliminary question, what is a faro-bank? Neither the law, nor any judicial precedents, furnish an adequate or settled meaning of the term; you have to resort to evidence to ascertain what faro-bank is, in which case there may be great diversity of opinion

1 ch. 110.

among the learned in the gambling republic and thus great uncertainty as to the offense the law meant to punish. Would it not be curious to have witnesses before a jury to tell us what murder, arson, rape, or robbery is? We hear facts, and the law defines crimes; if the evidence proves facts amounting to the established and settled characteristics of the crime, the court are judges of the sufficiency of the evidence, and adjudge the party guilty of the crime charged. We look not to evidence, not to the opinion of witnesses, for what constitutes offenses known and settled in the law; so that the legal denomination in one word comprises all the constituents of the crime. Not so with the term faro-bank; it is unknown to the law, and is no technical description per se of any offense. Therefore, when the Legislature mean to punish any act not known and established as a crime by some legal and technical, and certain characteristics, it resorts to descriptions and specifications of the facts and circumstances which are to constitute the prohibited act; they would not be satisfied, nor would there be any certainty in it, to prohibit and punish the act, merely by its vulgar, and popular name; and, therefore, it was proper to superadd the words, or "gaming-table," to illustrate more specifically the meaning of the words faro-bank. But with the explanation, it is still very loose; but if deemed sufficiently explanatory of the meaning attached to the word faro-bank, it has nothing to do with a sweat-cloth, or sweatcloth-table. A faro-bank or gaming-table, is only an alternative expression of the same thing. It would be a forced construction to say that when one offense was mentioned, that using another more generic or explicit term, separated from the first by the disjunctive, or that all kind of offenses which might fall within the scope of this generic term were intended to be embraced in it. It is most consistent with the rules of construction, to consider the latter words as merely an alternative description of the offense not so clearly expressed or defined in the first term. But suppose they were meant as distinct and independent offenses, let us see how the matter would then stand.

I say nothing of the absence of any legal, known, technical meaning of the words faro-bank, and the necessity of resorting to the uncertainty of human testimony to ascertain what a faro-bank is, I would ask if the words have a known and definite meaning? Is not betting at a faro-bank essential to constitute the keeping it an offense? Then take away the explanatory words, "or gaming-table," or consider them as independent of the words, "faro-bank," and creating a distinct offense; then the keeping a faro bank without any betting, or gaming, would fully come within the prohibition, and might be accordingly punishable; can this be the meaning of the Legislature? Then take the latter branch of the alternative prohibition, and say that the words, or gam

ing-table, mean to prohibit all sorts of gaming-tables, then private gaming-tables are prohibited, and a person having a party of friends at his house keeping a whist, or loo-table (and nothing is more common), he comes within the prohibition, and is liable to the penalty. Could this have been the intention of the Legislature? No. Gaming-tables must be common, or public, to make them nuisances, and as such, only are punishable. Whatever rigid moralists may desire as to the correction of private as well as public morals, legislatures have never gone so far as to visit with vindictive penalties, the pleasures or amusements of private families; these are left to the gradual influence of public opinion, or are proper subjects for the press, the pulpit, or writers and lecturers on moral duties.

The conclusions, therefore, to which the foregoing considerations lead my mind, are, that whatever the intention of the Legislature might have been to provide in the specific punishments for the crimes enumerated in the first section of the act, that if they have omitted to provide for any one of them, that one is not punishable. That there is no section of the law, subsequent to the first, that makes the keeping a faro-bank, or other common gaming-table an offense, or provides any punishment for such offense, by such description of the offense, or other equivalent descriptive words. That the offense set out and punished in the twelfth section, is not the offense of keeping a faro-bank, or other common gaming-table, but only the keeping a faro-bank or gaming table; a distinct offense, and not identical in language, meaning, or substance, with those in the first section.

That you can not supply the defect of description, by any aid to be derived from the first section, because there is an important, substantial, and essential difference in the two descriptions of offenses, to wit: the word common is wanting in the latter, which, being the very essence of the offense, can no more be intended, than you can intend, from the preamble of a statute, important words, essential to constitute the crime which the enacting clause professes to punish, because the offense is among those which the preamble contemplates to punish. For example: Suppose the penitentiary act, among the énumerated offenses, contained that of murder, which it proposed to punis by penitentiary confinement, instead of capitally; when you come to the clause providing for the punishment of the offense, it is described thus: whoever shall kill another, shall be punished by confinement, so and so; could you, because the first section enumerated murder among the crimes to be punished, supply the material and characteristic words, "with malice prepense," from the preamble, or (what is tantamount to a preamble, or is, at least, in the same category), the first section of the act in question.