M AL A PRO H IBI TA (Lat.). Those things which are prohibited by law, and therefore unlawful. , Crimes, made such, only by reason of stat utory prohibition. 1 McClain, Cr. L. § 23.
The distinction was formerly made with respect to the right to recover upon a con tract for doing an unlawful act between mala, prohibita and mala in se, but it has been said that this "has been long since ex ploded," and that "it was not founded upon any sound principle,"—that it makes no dif ference whether an act is forbidden because it is against good morals or against the in terest Of the state; 5 B. & Ald. 335, 340; Warren v. Ins. Co., 13 Pick. (Mass.) 519, 25 Am. Dec. 341; 12 Q. B. Div. 121 ; and "it is now well settled that every contract to do a thing made penal by statute is void as un lawfull" Sharsw. note, 1 Bla. Com. 58.
An act done in violation of a statutory prohibition confers no right upon the wrong. doer ; Waskey v. Hammer, 223 U. S. 85, 32 Sup. Ct. 187, 56 L. Ed. 359.
In the criminal law the distinction is im portant with reference to the intent with which a wrongful act is done. Thus, a man in the execution of one act, by chance, does another one for which, if he had wilfully committed it, he would be liable to punish ment,—if the act that he is doing were law ful or merely malum prohibitum, he is not punishable for the act arising from chance; but if malum in se, it is otherwise. For in stance, if a person unauthorized to kill game in England, contrary to the statutes, in un lawfully shooting at game, accidentally kills a man, it is no more criminal than if he were authorized; but if the accidental killing be the result of wantonly shooting at another's fowls, which is malum in se, as a-trespass, it is manslaughter ; '1 Bish. N. Cr. L. § 332; citing 1 East, P. C. 260; and see State v. Stanton, 37 Conn. 424; Conn. v. Adams, 114 Mass. 323, 19 Am. Rep. 362; 1 Whart. Cr. L. § 25.
Mr. Bishop also considers that the rule that ignorance of the law is no excuse for crime is particularly harsh when applied to what is only malum prohibitum; but that at the same time this is less important because most indictable wrongs are mala in se; 1 Bish. N. Cr. L. § 295.
It, is said that "offences which are smala in se attract no additional turpitude from being declared unlawful by human legisla tion," while "mala prohibita are such acts as are in themselves indifferent," and be come right or wrong, just or unjust, duties or misdemeanors, as the municipal legisla ture sees proper for protecting the welfare of society and more adequately carrying on the purposes of civil life ; Anderson, Law Diet. In Com. v. Willard, 22 Pick. (Mass.)
476, the court speak of offences "of a high and aggravated character, tending to breach es of the peace or other great disorder and violence, being what are usually considered mala in se, or criminal in themselves, in con tradistinction to mala prohibita, or acts oth erwise indifferent than as they are restrain ed by positive law." "The substance of the distinction between malum in se and malum prObibitum, is that the former is more intensely evil than the latter." 1 Bish.. N. Cr. L. § 658. Offences which have been judicially characterized in this country as male, prohibita are viola tions of statutes against gambling and lot teries ; Stone v. Mississippi, 101 U. S. 814, $21, 25 L. Ed. 1079; carrying concealed weap ons; State v. Shelby, 90 Mo. 302, 2 S. W. 468.
Blackstone mentions as examples, game laws and laws against exercising certain trades without hav ing served a certain apprenticeship, for not perform ing the statute-work on the public roads, and "for innumerable other positive misdemeanors," the sub ject of discussion being more particularly the effect of the mars prohibition of an act and affixing a penalty ; he adds: "Now these prohibitory. .laws do not make the transgression a moral offence or sin ; the only obligation in conscience is to submit to the penalty, if lawful. It must, however, here be ob served that we are speaking of laws that are merely penal where the thing forbidden or enjoined is wholly a matter of indifference and where the pen alty involved is an adequate compensation for the small inconvenience supposed to arise from the of fence, but where disobedience to the law involves al so indirect or public mischief or private injury, there it falls within our former distinction and is also an offence against conscience." 1 Bla. Com. 57. His "former distinction" is as to mala in se which we are in conscience bound to abstain from, apart from their being criminal. These views of Blackstone have been the subject of much criticism and are controverted in the notes of Christian, Sharswood, and Chase.
Aside from the considerations suggested by Bishop as above stated, the distinction between mala prohibita and mala in se is of little, if any, practical utility, and some crimes usually relegated to the former class are so generally recognized as such by stat ute as to be considered as covered by the criminal law in the same sense as ma/um in se; 1 McClain, Cr. L. § 23. Judicial notice is taken of them in a country where the common law prevails ; Morrissey v. People, 11 Mich. 327. See CRIME; MALUM IN SE.