relates to the forfeiture of the right of presentation, was considered in a former book)(r) enacts that if any patron, for money or any other corrupt consideration or promise, directly or indirectly given, shall present, admit, institute, induct, install, or collate, any person to an ecclesiastical benefice or dignity, both the giver and taker shall forfeit two years' value of the benefice or dignity; one moiety to the king, and the other to any one who will sue for the same. If persons also corruptly resign or exchange their benefices, both the giver and taker shall in like manner forfeit double the value of the money or other corrupt consideration. (33) And persons who shall *63] *corruptly ordain or license any minister, or procure him to be or

dained or licensed, (which is the true idea of simony,) shall incur a like forfeiture of forty pounds; and the minister himself of ten pounds, besides an incapacity to hold any ecclesiastical preferment for seven years afterwards. Corrupt elections and resignations in colleges, hospitals, and other eleemosynary corporations, are also punished by the same statute with forfeiture of the double value, vacating the place or office, and a devolution of the right of election for that turn to the crown.(34)

IX. Profanation of the Lord's day, vulgarly (but improperly) called sabbath-breaking, is a ninth offence against God and religion, punished by the municipal law of England. For, besides the notorious indecency and scandal of permitting any secular business to be publicly transacted on that day in a country professing Christianity, and the corruption of morals which usually follows its profanation, the keeping one day in the seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to a state, considered merely as a civil institution. (35) It

(r) See book ii. p. 279.

(33) Any resignation or exchange for money is corrupt, however apparently fair the transaction: as where a father, wishing that his son in orders should be employed in the duties of his profession, agreed to secure, by a bond, the payment of an annuity exactly equal to the annual produce of a benefice, in consideration of the incumbent's resigning in favor of his son. The annuity being afterwards in arrear, the bond was put in suit, and the defendant pleaded the simoniacal resignation in bar; and lord Mansfield and the court, though they declared that it was an unconscientious defence, yet, as the resignation had been made for money, determined that it was corrupt and simoniacal, and in consequence that the bond was void. Young v. Jones, E. T. 1782.-CHRISTIAN.

(34) By stat. 9 Geo. IV. c. 94, bonds of resignation of any benefice in favor of a son, grandson, brother, uncle, nephew, or grand-nephew, upon notice or request, are rendered valid, notwithstanding the 31 Eliz. c. 6; but the new act is not to extend to any engagements unless the deed be deposited within two months with the registrar of the diocese or peculiar jurisdiction wherein the benefice is situated. The passing of this act, it is believed, arose out of the fluctuating and contradictory decisions of our courts upon the subject.-CHITTY.

(35) Most states of the Union have passed statutes forbidding ordinary labor on Sunday except works of necessity and charity. Though the constitutionality of such laws has been frequently challenged, they have been universally sustained as dealing with and having respect to the Sabbath as a civil and political institution, and not affecting to interfere with religious belief in worship, faith, or practice. Commonwealth v. Wolf, 3 S. & R. (Pa.) 47, 48 (1817). Shover v. State, 10 Ark. 259, 263 (1850). Vogelsong v. State, 9 Ind. 112, 114 (1857). State v. Ambs, 20 Mo. 214, 217 (1854). Specht v. Commonwealth, 8 Pa. St. 312, 321 (1848). In some states it has been held that the Sabbath exists as a day of rest by the common law, without the necessity of legislation to establish it; and all that the legislature attempts to do in the "Sabbath laws" is to regulate its observances. Lindenmuller v. People, 33 Barb. (N. Y.) 548, 568 (1861). Ex parte Burke, 59 Cal. 6, 17 (1881). State v. Green, 37 Mo. 466, 470 (1866). The authorities differ as to what constitutes works of necessity and charity. An agreement to subscribe for the erection of a church edifice, is valid, though made on Sunday. Allen v. Duffie, 43 Mich. 1, 9 (1880). Dale v. Knepp, 98 Pa. St. 389, 393 (1881). A hack driver is excused for carrying passengers on Sunday, since he believed that the particular journey was a necessary one. Myers v. State, 1 Conn. 502, 504 (1816). A lock-keeper

humanizes, by the help of conversation and society, the manners of the lower classes, which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit; it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness; it imprints on the minds of the people that sense of their duty to God so necessary to make them good citizens, but which yet would be worn out and defaced by an unremitted continuance of labor, without any stated times of recalling them to the worship of their Maker. And, therefore, the laws of king Athelstan(s) forbade all merchandizing on the Lord's day, under very severe penalties. And by the statute 27 Hen. VI. c. 5, no fair or market shall be held on the principal festivals, Good Friday, or any Sunday, (except the four Sundays in harvest,) on pain of forfeiting the goods exposed to sale. And since, by the statute I Car. I. c. 1, no persons shall assemble out of their own parishes for any sport whatsoever upon this day; nor, in their parishes, shall use any bull or *bear baiting, interludes, plays, or other unlawful exercises or [*64 pastimes; on pain that every offender shall pay 3s. 4d. to the poor. This statute does not prohibit, but rather impliedly allows, any innocent recreation or amusement, within their respective parishes, even on the Lord's day, after divine service is over. But, by statute 29 Car. II. c. 7, no person is allowed to work on the Lord's day, or use any boat or barge, or expose any goods to sale; except meat in public houses, milk at certain hours, and works of necessity or charity, on forfeiture of 5s. Nor shall any drover, carrier, or the like travel upon that day, under pain of twenty shillings. (36) X. Drunkenness is also punished, by statute 4 Jac. I. c. 5, with the forfeiture of 5s. or the sitting six hours in the stocks: by which time the statute presumes the offender will have regained his senses, and not be liable to do

(8) C. 24.

on a canal, which is a public highway, is not liable to conviction for opening the lockgates on Sunday, at the demand of owners or captains of boats navigating the canal. Murray v. Commonwealth, 24 Pa. St. 270, 271 (1855). For a discussion of what constitutes "necessity," see Beecher v. Fitchburg Railroad, 131 Mass 156, 158 (1881). Also Mueller v. State, 76 Ind. 310, 315 (1881). Yonoski v. State, 79 Ind. 393, 395 (1881). The cases can be understood only by a study of the statutes of the several states.

(36) It has been recently held that the driver of a stage-van to and from London to York is a common carrier within the meaning of 3 Car. I. c. 1, c. 2, and subject to the penalties thereof for traveling on Sunday. Rex v. Middleton, 4 D. & R. 824. Where a parol contract was entered into for the purchase of a horse above the value of 10l., on a Sunday, with a warranty of soundness, and the horse was not delivered and paid for until the following Tuesday, held, first, that the contract was not complete until the latter day; and, second, that supposing it to be void within the 29 Car. II. c. 7, s. 2, still it was not an available objection on the part of the vendor in an action for a breach of the warranty, the vendee being ignorant of the fact that the former was exercising his ordinary calling on the Sunday. Bloxsome v. Williams, 5 D. & R. 82. 3 B. & C. 232.

The 11 & 12 W. III. c. 21, and all other acts for the regulation of watermen plying upon the river Thames, are repealed by the 7 & 8 Geo. IV. c. 75. (By stat. 34 & 35 Vict. c. 87, it is provided that prosecutions for offences under the 29 Car. 2, c. 7, shall be instituted only by the chief officer of the police, or with the consent of two justices of the peace. Under the 38 & 39 Vict. c. So, the crown is empowered to remit penalties incurred by violation of the provisions of the 29 Geo. III. c. 49,) which permits a limited number of watermen, under certain regulations, to ply upon the Thames, within certain specified limits, on Sundays. By 29 Car. II. c. 7, no arrest can be made nor process served on a Sunday except for treason, felony, or breach of the peace. Ante, book iii. 290. Neither is the hundred answerable to the party robbed for a robbery committed on a Sunday. But where a plaintiff was robbed in going to his parish church, in his coach, on a Sunday, he recovered against the hundred, under the statute of Winton, (13 Edw. I. st. 2.) the court observing that the statute of Charles must be construed to extend only to cases of traveling, and that it might have been otherwise if the plaintiff had been making visits, or the like. Teshmaker v. The Hundred of Edmonton, M. 7 Geo. I. See I Stra. 406. Com. 345. Killing game on a Sunday is prohibited, under heavy penalties, by 13 Geo. III. c. 80. (Repealed by 1 & 2 Wm. IV. c. 32.)—CHITTY.

mischief to his neighbors. And there are many wholesome statutes by way of prevention, chiefly passed in the same reign of king James I., which regulate the licensing of alehouses, and punish persons found tippling therein; or the master of such houses permitting them.

XI. The last offence which I shall mention, more immediately against religion and morality, and cognizable by the temporal courts, is that of open and notorious lewdness; either by frequenting houses of ill fame, which is an indictable offence;(t)(37) or by some grossly scandalous and public indecency, for which the punishment is by fine and imprisonment. (u)(38) In the year

(t) Poph. 208.

(u) 1 Siderf. 168.

(37) As to the offence of keeping or frequenting bawdy-houses, see post, 167. A woman cannot be indicted for being a bawd generally; for the bare solicitation of chastity is not indictable. Hawk. b. 1, c. 74. I Salk. 382.-CHITTY.

(38) Many offences of private incontinence fall properly and exclusively under the jurisdiction of the ecclesiastical court, and are appropriated to it; but where the incontinence or lewdness is public, or accompanied with conspiracy, it is indictable.

Exposing a party's person to the public view is an offence contra bonos mores [Against good manners,] and indictable. See I Sid. 168. 2 Camp. 89. 1 Keb. 620. And, by the vagrant act, (5 Geo. IV. c. 83, s. 4,) exposing a man's person with intent to insult a female is an offence for which the offender may be treated as a rogue and vagabond; and so is the wilfully exposing an obscene print or indecent exhibition: indeed, this would be an indictable offence at common law. 2 Stra. 789. 1 Barn. Rep. 29. 4 Burr. 2527, 2574. And, by the same act of 5 Geo. IV. c. 83, s. 3, every common prostitute wandering in public and behaving in a riotous and indecent manner may be treated as an idle and disorderly person within the meaning of that act.

Publicly selling and buying a wife is clearly an indictable offence, (3 Burr. 1438;) and many prosecutions against husbands for selling and others for buying have recently been sustained, and imprisonment for six months inflicted.

Procuring or endeavoring to procure the seduction of a girl seems indictable. 3 St. Tr. 519. So is endeavoring to lead a girl into prostitution. 3 Burr. 1438; and see post, 209, 212, as to the offence of seduction.

It is an indictable offence to dig up and carry away a dead body out of a churchyard. 2 T. R. 733. Leach, C. L. 4 ed. 497, S. C. 2 East, P. C. 652; post, 236; ante, 2 book, 429. And the mere disposing of a dead body for gain and profit is an indictable offence. Russ. & R. C. C. 366, note. I Dowl. & R. N. P. C. 13. And it is a misdemeanor to arrest a dead body, and thereby prevent a burial in due time. 4 East, 465. The punishment for such an offence is fine and imprisonment. 2 T. R. 733.

All such acts of indecency and immorality are public misdemeanors, and the offenders may be punished either by an information granted by the court of King's Bench, or by an indictment preferred before a grand jury at the assizes or quarter-sessions.-CHITTY. It may be stated as a general principle that whatever openly outrages decency and is injurious to public morals is a misdemeanor. See Russell on Crimes, 9 Am. ed. (Sharswood) vol. I, *449. Archbold's Crim. Prac. & Pleadings, 8 ed. (Pomeroy) vol. 2, p. 1770 and cases cited. Bishop's New Crim. Law, 8 ed. vol. 1, 500, p. 306. Williams v. State, 64 Ind. 553, 557 (1878). Binn's Justice, 10 ed. (Brightly) 76 (1895). Bell v. State, I Swan. (Tenn.) 42, 45 (1851).

66

Under "lewdness" is classed "grossly scandalous and public indecency," such as exposing a party's person, and also publicly selling and buying a wife, etc. The term "public indecency "has no fixed legal meaning, and the courts in England and the United States have usually limited the operation of the term to public displays of the naked person, the publication, sale, or exhibition of obscene books and prints, using obscene language, etc. McJunkin v. State, 10 Ind. 140, 145, et seq. (1858). Brooks v. State, 2 Yerg. 482, 483 (1831). Also, Archbold's Crim. Prac. & Pleadings, 8 ed. (Pomeroy) vol. 2, p. 1034, note. Most of the offences mentioned above are regulated by statute in the various states. Indecent exposure is usually described as open and notorious" in the statute, but the cases uniformly hold that it is sufficient if the exposure be to one person, or in a public place where all may see the commission of the offence, regardless of the number who actually do observe it. State v. Millard, 18 Vt. 574, 577 (1846). Commonwealth v. Wardell, 128 Mass. 52, 53 (1880). Comm v. Catlin, 1 Mass. 8 (1804) distinguished. State v. Roper, I Dev. & Bat. (N. C.) 208, 209 (1835). State v. Rose, 32 Mo. 560, 561 (1862). One who causes others dependent upon him to go about in a halfnaked condition is guilty of lewdness and indictable therefor. Britain v. State, 3 Humph. (Tenn.) 203, 204 (1842).

In an indictment for exhibiting an obscene picture, it need not be averred that the exhibition was public; if it be stated that the picture was shown to sundry persons for

1650, when the ruling power found it for their interest to put on the semblance of a very extraordinary strictness and purity of morals, not only incest and wilful adultery were made capital crimes, but also the repeated act of keeping a brothel, or committing fornication, were (upon a second conviction) made felony without benefit of clergy.(w) But at the restoration, when men, from an abhorrence of the hypocrisy of the late times, fell into the contrary extreme of licentiousness, it was not thought proper to renew a law of such unfashionable rigor. And these offences have been [*65 ever since left to the feeble coercion of the spiritual court according to the rules of the canon law; a law which has treated the offence of incontinence, nay, even adultery itself, with a great degree of tenderness and lenity, owing perhaps to the constrained celibacy of its first compilers. temporal courts therefore take no cognizance of the crime of adultery otherwise than as a private injury.(x)(39)

The

But, before we quit this subject, we must take notice of the temporal punishment for having bastard children, considered in a criminal light: for, with regard to the maintenance of such illegitimate offspring, which is a civil concern, we have formerly spoken at large. (1) By the statute 18 Eliz. c. 3, two justices may take order for the punishment of the mother and reputed father, but what that punishment shall be is not therein ascertained; though the contemporary exposition was that a corporal punishment was intented. (2)

(w) Scobell, 121.

(z) See book iii. p. 139.

(y) See book i. page 458.
(z) Dalt. Just. ch. 11.

money, it is a sufficient averment of its publication. Commonwealth v. Sharpless, 2 S. & R. (Pa.) 91, 101 (1815). Though there is, strictly speaking, no right of property in a dead body, the courts recognize and protect as a legal right in the next of kin, in the absence of testamentary disposition, the right to bury a corpse and to preserve the remains. The right to protect the remains includes the right to preserve them by a separate burial, to select the place of sepulture, and to change it at pleasure. Though the place of burial may be taken for a public use, the next of kin may claim to be indemnified for the expense of removing and suitably reinterring the remains. For a full discussion of the law of burial see matter of Beekman St. 4 Bradf. (N. Y.) 503 (1856). Pierce v. Proprietors etc. 10 R. I. 227, 242 (1872). Bogert v. City, 13 Ind. 134, 138 (1859). Wynkoop v. Wynkoop, 42 Pa. St. 293, 301 (1862). Meagher v. Driscoll, 99 Mass. 281, 284 (1868). Guthrie v. Weaver, I Mo. App. 136, 141, et seq. (1876). And Page v. Symonds, 63 N. H. 17, 19 (1883). See Bishop on Statutory Crimes, 2 ed. 728, p. 442, note.

In most states, severe penalties are prescribed by statute for disturbing a funeral, arresting or attaching a dead body, opening a grave, stealing a body, receiving a stolen body, unlawful dissection, etc. The statutes of New York may be taken as fairly representative. Unlawful dissection, attaching or arresting a dead body, disturbing funerals are classed therein as misdemeanors, while opening a grave with intention to remove the body for purposes of sale or dissection, stealing a corpse, and receiving a stolen body are felonies punishable by imprisonment varying from two to five years and by fine. N. Y. Penal Code, 305-315.

(39) Keeping a disorderly house is an indictable offence. So is leasing a house with the knowledge that it will be used for immoral purposes. Smith v. State, 6 Gill (Md.) 425, 428 (1848). Commonwealth v. Harrington, 20 Mass. (3 Pick.) 26, 29 (1825). People v. Erwin, 4 Denio (N. Y.) 129, 130 (1847). State v. Evans, 5 Ind. 603, 607 (1845). N. Y. Penal Code, 322. Seduction of a woman or leading her into prostitution is a statutory offence in many states. Osborn v. State, 52 Ind. 526, 528 (1876). Kauffman v. People, II Hun. (N. Y.) 82, 85 (1877). People v. Rodengas, 49 Cal. 9 (1874). People v. Carrier, 46 Mich. 442 (1881). Though the statutes of the several states vary, they nearly all agree in requiring that one essential element of the crime is the previous chaste character of the woman alleged to be seduced. N. Y. Penal Code, 284.

Unlawful cohabitation, or habitual living in adultery, is a statutory crime in many states. Greshan & Ligan v. State, 2 Yerg. (Tenn.) 589, 594 (1831). White v. White, 82 Cal. 427, 449 (1890). Incest is a statutory offence in many of our states, though it seems not to be indictable otherwise. Bishop's New Crim. Law, 8 ed. vol. 1, 502, p. 307. State v. Jarvis, 20 Ore. 437, 439 et seq. (1891). Incontinence is a crime in Massachusetts. Hill v. Wells, 23 Mass. (6 Pick.) 104, 106 (1828).

By statute 7 Jac I. c. 4, a specific punishment (viz., commitment to the house of correction) is inflicted on the woman only. But in both cases it seems that the penalty can only be inflicted if the bastard becomes chargeable to the parish; for otherwise the very maintenance of the child is considered as a degree of punishment. By the last-mentioned statute, the justice may commit the mother to the house of correction, there to be punished and set on work for one year; and in case of a second offence, till she find sureties never to offend again. (40)

*66]

*CHAPTER V.

OF OFFENCES AGAINST THE LAW OF NATIONS.

ACCORDING to the method marked out in the preceding chapter, we are next to consider the offences more immediately repugnant to that universal law of society, which regulates the mutual intercourse between one state and another; those, I mean, which are particularly animadverted on, as such, by the English law. (1)

The law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world;(a) in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance of justice and good faith in that intercourse which must frequently occur between two or more independent states, and the individuals belonging to each. (b) This general law is founded upon this principle, that different nations ought in time of peace to do one another all the good they can, and in time of war as little harm as possible, without prejudice to their own real interests. (c) And, as none of these states will allow a superiority in the other, therefore neither can dictate or prescribe

the rules of this law to the rest; but such rules must necessarily result *67] from those *principles of natural justice in which all the learned of

every nation agree; or they depend upon mutual compacts or treaties between the respective communities, in the construction of which there is also no judge to resort to but the law of nature and reason, being the only one in which all the contracting parties are equally conversant and to which they are equally subject.

(a) Ff. 1, 9.

(b) See book i. p. 43.

(c) Sp. L. b. i. c. 7.

(40) The 7 Jac. I. c. 4, s. 7 (which provided certain punishments for lewd females who had bastards) is repealed by 50 Geo. III. c. 51, s. 1, which enacts "that in cases when a woman shall have a bastard child which may be chargeable to the parish, any two jus tices before whom such woman shall be brought may commit her, at their discretion, to the house of correction in their district, for a time not exceeding twelve calendar months nor less than six weeks." By section 3, upon the woman's good behavior during her confinement, any two justices may release and discharge her from further confinement. By section 4, justices are restrained from committing any woman till she has been delivered one month. The child must be chargeable, or likely to become so, in order to authorize a conviction. 2 Nolan, 256, 3 ed.—CHITTY.

The later statutes in England, as well as those in the United States, do not go much beyond the protection of the community from the burden of supporting the bastard child. To this end proceedings may be taken in the inferior courts to compel the putative father to contribute to the support of the child until it arrives at an age when it can support itself. See the statutes 7 and 8 Vict. c. 101. 35 and 36 id. c. 65. 36 and 37 id. c. 9. N. Y. Code Crim. Procedure, ?? 838-880.

(1) In the United States, the federal courts have jurisdiction of this class of offences. U. S. Constitution, art. 1, sec. 8, ? 10. Id. art. 3, sec. 2, % 1.