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 55. 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. I, 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. 80, 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. Ι 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. I 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).

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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, I Mass. 8 (1804) distinguished. State v. Roper, 1 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. The temporal courts therefore take no cognizance of the crime of adultery otherwise than as a private injury.(x)(39)

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. (y) 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. (z)

(w) Scobell, 121.

(x) 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, 11 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, 2 502, 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.

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 justices 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, 2 10. Id. art. 3, sec. 2, I.

In arbitrary states this law, wherever it contradicts, or is not provided for by, the municipal law of the country, is enforced by the royal power; but since in England no royal power can introduce a new law, or suspend the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land. (2) And those acts of parliament which have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom, without which it must cease to be a part of the civilized world. Thus, in mercantile questions, such as bills of exchange and the like; in all marine causes, relating to freight, average, demurrage, insurances, bottomry, and others of a similar nature; the law-merchant, (d) which is a branch of the law of nations, is regularly and constantly adhered to. (3) So too in all disputes relating to prizes, to shipwrecks, to hostages and ransom-bills, there is no other rule of decision but this great universal law, collected from history and usage, and such writers of all nations and languages as are generally approved and allowed of. (4)

But though in civil transactions and question of property between the subjects of different states the law of nations has much scope and extent as adopted by the law of England; yet the present branch of our inquiries will fall *within a narrow compass, as offences against the law of [*68 nations can rarely be the object of the criminal law of any particular state. For offences against this law are principally incident to whole states or nations: in which case recourse can only be had to war, which is an appeal to the God of hosts to punish such infractions of public faith as are committed by one independent people against another; neither state having any superior jurisdiction to resort to upon earth for justice. But where the individuals of any state violate this general law, it is then the interest as well as duty of the government under which they live to animadvert upon them with becoming severity, that the peace of the world may be maintained. would nations in their collective capacity observe these universal rules, if private subjects were at liberty to break them at their own discretion, and involve the two states in a war. It is therefore incumbent upon the nation injured, first, to demand satisfaction and justice to be done on the offender by the state to which he belongs; and, if that be refused or neglected, the sovereign then avows himself an accomplice or abettor of his subject's crime, and draws upon his community the calamities of foreign war.

The principal offences against the law of nations, animadverted on as such by the municipal laws of England, are of three kinds: 1. Violation of safe

(d) See book i. p. 273.

(2) "Governments, like individuals, cannot exist together without law to regulate their mutual relations; hence the law of nations. It is, in truth, common law; or, rather, the common law has appropriated the law of nations, making it a part of itself." Bishop's New Crim. Law, 8 ed. vol. 1, 483, p. 296. Similiter, Taylor v. Lowell, 3 Mass. 331, 343 (1807).

(3) Board of Com'rs of Bartholomew Co. v. Bright, 18 Ind. 93, 95 (1862). Wheeler on Modern Law of Carriers, p. 14, note (1890).

4) By the 33 Geo. III. c. 66, it was enacted that it was unlawful for any of his majesty's subjects to ransom, or enter into any contract for ransoming, any ship or merchandise captured by an enemy; and that all contracts and securities for that purpose, without the license therein mentioned, were absolutely void; and that every person who entered into such a contract should be subject to a penalty of 500l.-CHRISTIAN. As to the power of the president as commander-in-chief of the army and navy of the United States, see in re Kemp, 16 Wis. 359, 369 (1863).