right attaches or lapses, and whether or not his proposed conduct is permitted or penalized; furthermore, a penal statute can predicate an offense and its punishment only upon an actually ascertained material injury, or the imminent danger of such, ascertained according to the known laws of our physical universe, which material injury must be imminent to, or actually realized by, some sentient being, not giving a voluntary, undeceived consent, or one who from immaturity or infirmity is incapacitated for giving that consent. If a statute does not conform to all these requirements, then I believe it cannot be the law, and all penalties inflicted under such other statutes are the deprivation of life or property for mere constructive offenses, and cannot constitute "due process of law." We pass now from these general considerations to the more specific consideration of uncertainty in criminal statutes. CHAPTER XIX. "DUE PROCESS OF LAW" IN RELATION TO STATUTORY UNCERTAINTY AND General CONSTRUCTIVE OFFENSES. PART II. Considerations Concerning Uncertainty and Due That a deprivation of liberty or property may be due process of law, two things must occur. First, there must be a valid "law," within the meaning of that word in the constitutional phrase "due process of law," and secondly the process prescribed by that law must be accurately pursued. Here I am directly concerned only with one phase of the question: What is essential as to the content of a legislative enactment to make it a criminal "law" within the meaning of the Constitution? Judicial opinions have often commented upon uniformity and universality of application, to all who in the nature of things are similarly situated, as an essential to the very existence of a law. Here it is proposed to discuss only the effect of uncertainty in a criminal statute, as related to the nonexistence of "law", because under such uncertain statutes courts must indulge in constitutionally prohibited judicial legislation; and because statutory uncertainty excludes the requirement of unavoidable uniformity of application to all who are naturally similarly situated. In other words, it is proposed to resurrect the ancient maxim, "Ubi jus incertum ibi jus nullum" (where the law is uncertain there is no law) and to make it a rule for the interpretation of the "due process of law" clause of our constitutions. In order that my conclusions may not be discredited by the use of false analogies, I deem it wise to begin with a short analytical statement which will differentiate the problem which I propose to discuss from kindred problems arising from uncertainties of other than criminal statutes, and the probable 10 Revised from The Central Law Journal, Jan. 3, 1908. different effect which uncertainty may produce in different classes of legislation. Even though the preliminary discussion may be superficial, it seems needful since I have nowhere found any general discussion of the subject. UNCERTAIN STATUTES CLASSIFIED. It is conceivable that some civil enactment of a legislature would merely be an effort verbally to declare, and legally to establish and maintain, some rule of natural justice, which is inherent in the nature of things and of the social organism. Uncertainty in such a statute, resulting from an unfortunate choice of words, could do no serious injustice even though the court, either by legitimate construction or judicial legislation, should make it certain, if in doing so nature's rule of justice was not violated, nor artificial penalties inflicted. It is probable that uncertainty in such a statute would not necessarily effectuate its annulment. At any rate, I exclude that class of cases from my discussion. A second class of statutes which might be objected to because of uncertainty, are those which create artificial civil remedies for the maintenance of natural justice. Here again ambiguity and uncertainty can be judicially eliminated in accordance with the legislative intent, if that is reasonably ascertainable from the act itself, and no injury result to innocent parties, because the postulate was that the maintenance of natural justice was the only end to be achieved by the use of this new artificial remedy. For the same reason such laws may also be retroactive.11 The third class of uncertain statutes consist of such as declare a rule of justice not derived from nature as such, but finding its foundation in some artificial condition of legislative creation. The limitation of the liability or rights of corporate stockholders might be an illustration. When in such legislation the effect is to curtail the responsibility which naturally should flow from one's act, great exactness in expressing the legislative intent to that effect would be required, since every intendment must be indulged in favor of the natural consequences of one's act operating under natural conditions. But I'm not going to discuss this either. I have mentioned these classes only to point out superficially their probable difference from the next class, so that, in the mind of the reader, my "Chamberlain v. City of Evansville, 77 Ind. 551; Davis v. Ballard, 1 Mar shall (Ky.), 579. argument may not be subjected to unmerited discredit, because of the thoughtless use of false analogies. The fourth class of legislation, of which uncertainty may be an attribute, includes all those laws which are intended to create and enforce artificial rights or which are punitive in their character. The creation of artificial rights such as arise from the establishment of a public postal system, patent rights, and copyrights, are all laws of this character wherein the statute must describe with the accuracy required for a penal statute upon what conditions the right may vest or be destroyed, else again we are governed by the arbitrary will of men, and not according to the law. The relationship of "due process of law" to an uncertainty in the statutory specification of that which is made punishable by it, is the special matter here to be discussed. Every State in the union has from one to several score of penal statutes in which no words of exact meaning serve to define with any certainty what it is that is prohibited. In the last thirty years, under only one class of these uncertain statutes, about 5,000 convictions have been secured, and it is fair to assume that under all others, including an infinite variety of vague municipal police regulations, there have been some 20,000 more citizens deprived of liberty and property, and yet seemingly no one has ever doubted that a conviction under such statutes constitutes "due process of law." This makes me wonder if I am dreaming or if the whole rank and file of the bar and judiciary have forgotten the original meaning and purpose of "the law of the land." I do not even except the Supreme Court of the United States, because it, like all the appellate courts of all the states, has repeatedly enforced such laws without a doubt ever crossing its mental horizon, originating either with the court or the attorneys appearing there to argue in such cases. The most conspicuous and most generally approved examples of these many and outrageously uncertain laws, are those which in various ways penalize "indecent, obscene, filthy or disgusting" literature and art. Those who need to have a concrete example in mind, while the discussion proceeds, may be thinking of those laws as a sample of many others which must be annulled if my contention is correct. UNCERTAIN AND AMBIGUOUS STATUTES DISTINGUISHED. First of all we must bear in mind the distinction between an ambiguous statute and an uncertain one. An ambiguous statute I conceive to be one which is expressed in words some of which have several different meanings, all, or some of which meanings, would leave the statutory signification so certain as not to require any additional words to make its meaning plain and uniform beyond doubt, to every man of average intelligence. When that is the case the problem is one of construction, in the method of which due regard is to be had, first for the liberty of citizens and second for the legislative intention, which, however, must be gathered exclusively from the words of the act itself. The rules for statutory construction will always protect the accused, so he shall not be punished if there be any reasonable doubt as to whether his act necessarily comes within the very letter of all of the possible meanings of the statutory prohibition. If it does not come within every possible interpretation of the legislative language, the accused must have the benefit of the doubt under the rule of strict construction. In a statute which is only ambiguous, we can thus avoid all possibility of raising the constitutional question which I am proposing to discuss. If in criminal cases such rules for a strict construction do not safeguard the liberties of citizens, they are convicted under judicial legislation, and not by "due process of law." By an uncertain statute, as contradistinguished from an ambiguous one, I mean a statute which is uncertain because incomplete in its description of the artificial rights created by it, or the act which it proposes to punish. Thus an uncertain statute is one which, when applied to undisputed facts of past or present existence, is incapable of any literal enforcement, or incapable of enforcement with absolute certainty and uniformity of result, except by the judicial addition of words, or tests, which may or may not have been intended by the legislature, but which are not unavoidable implications from the statutory language alone. It will be contended that such an uncertainty in a statute, creating an artificial right or punishment, makes the enactment unconstitutional because in its practical operation and enforcement it unavoidably involves ex post facto judicial legislation in defining the crime, and therefore is not "due |