mon usage, and where there is no law there can be no transgression. At common law drunkenness, or cursing and swearing, were not punishable; and yet I do not find the spiritual court took notice of them. This is but a general solicitation of chastity, and not indictable. Lady Purbeck's case was for procuring men and women to meet at her house, and held not indictable, unless there had been particular facts to make it a bawdy-house. To make it indictable there should be a breach of the peace, or something tending to it, of which there is nothing in this case. A libel is a technical word at common law, and I must own the case of the R. v. Read sticks with me, for there was a rule to arrest the judgment nisi. And in Sir Charles Sedley's case there was a force in throwing out bottles upon the people's heads. REYNOLDS, J. It is much to be lamented if this is not punishable. I agree there may be many instances, where acts of immorality are of spiritual cognizance only; but then those are particular acts, where the prosecution is pro salute animae of the offender, and not where they are of a general. immoral tendency; which I take to be a reasonable distinction. Read's case is indeed a case in point. But I confess I should not have been of that opinion. Libellus does not ex vi termini import defamation, but is to be governed by the epithet which is added to it. This is surely worse than Sir Charles Sedley's case, who only exposed himself to the people then present, who might choose whether they would look upon him or not; whereas this book goes all over the kingdom. Drunkenness and swearing were punishable in the spiritual court before the acts which made them temporal offenses, and in which the jurisdiction of the spiritual court is saved. (Being a case of great consequence, it was ordered to stand over to the next term, at which time the judges gave their unanimous opinion that this was a temporal offense, and defendant was set in the pillory.) R. v. Curl, 2 Strange 788.

(Eng. King's Bench, 1763.) Against Public Decency and Manners. LORD MANSFIELD, C. J. This is a motion for an information against the defendants for a conspiracy to put this young girl (an apprentice to one of them) into the hands of a gentleman of rank and fortune, for the purpose of prostitution; contrary to decency and morality, and without the knowledge or approbation of her father, who prosecutes them for it, and has now cleared himself of all imputation, and appears to be an innocent and an injured man. A female infant, then about fifteen, was bound apprentice by her father to the defendant Bates, a music master; the girl appearing to have natural talents for music. The father became bound to the master in the penalty of £200 for his daughter's performance. of the covenants contained in the indenture. She became eminent for vocal music; and thereby gained a great profit to Bates, her master. And then she is indentured to Sir Francis Delaval to learn music of him; and she covenants with him, both

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in the usual covenants of indentures of apprenticeship, and likewise in several others (as "not to quit even his apartments"), etc. These articles between the parties are signed by all but the father, and a bond is drawn from him, in the penalty of £200 for his daughter's performance of these covenants (which he never executed). And the girl goes and lives and still does live with Sir Francis, notoriously, as a kept mistress. Thus she has been played over, by Bates, into his hands, for this purpose. No man can avoid seeing all this; let him wink ever so much. I remember a cause in the court of chancery, wherein it appeared that a man had formally assigned his wife over to another man, and Lord Hardwicke directed a prosecution for that transaction, as being notoriously and grossly against public decency and good manners. And so is the present Besides this there is, in the present case, a conspiracy and confederacy amongst the defendants, which was clearly and indisputably within the proper jurisdiction of this court. # Rule absolute. R. v. Delaval, 3 Burr. 1434, 1 Wm. Bl. 410, 439, 1 B. & H. 457, B. 101.

case.

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Acc. on similar facts: Smith v. P., § 61.

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(Pa. Sup. Ct., 1815.) Indictment for Exhibiting Indecent Pictures. Motion in arrest of judgment, that no offense was charged. TILGHMAN, C. J. There is no act punishing the offense charged against the defendants, and therefore the case must be decided upon the principles of the common law. That actions of public indecency were always indictable, as tending to corrupt the public morals, I can have no doubt; because, even in the profligate reign of Charles II, Sir Charles Sedley was punished by imprisonment and a heavy fine for standing naked in a balcony in a public part of the city of London. It is true that, besides this shameful exhibition, it is mentioned in some of the reports of that case that he threw down bottles containing offensive liquor among the people; but we have the highest authority for saying that the most criminal part of his conduct, and that which principally drew upon him the vengeance of the law, was the exposure of his person. For this I refer to the opinion of the judges in Queen v. Curl, 2 Strange 792 [above]; Lord Mansfield in R. v. Delaval, 3 Burr. 1434 [above]; and of Blackstone in 4 Bl. Com. 64. * # ** The law in Curl's case was established upon true principles. What tended to corrupt society was held to be a breach of the peace and punishable by indictment. The courts are guardians of the public morals, and therefore have jurisdiction in such cases. Hence it follows that an offense may be punishable if in its nature and by its example it tends to the corruption of morals, although it be not committed in public. Now, to apply these principles to the present The defendants are charged with exhibiting and showing to sundry persons, for money, a lewd, scandalous, and obscene painting. A picture tends to excite lust as strongly as a writing; and the

case.

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showing of a picture is as much a publication as the selling of a book. Curl was convicted of selling a book. It is true, the indictment charged the act to have been in a public shop, but that can make no difference. The mischief was no greater than if he had taken the purchaser into a private room and sold him the book there. The law is not to be evaded by an artifice.

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Motion overruled. C. v. Sharpless, 2 Serg. & R. 91, 7 Am. Dec. 632, B. 113.

§ 20. Touching the Government.

(Mass. Sup. Judicial Ct., 1812.) For Voting More than Once on an election of selectmen at a town meeting, a legal voter was indicted, and after conviction moved in arrest of judgment, that no statute made the act an offense, nor was such office known to the law. On the other side it was argued that such frauds were becoming so common that they must be stopped to save the purity of elections. CURIA. There cannot be a doubt that the offense described in the indictment is a misdemeanor at common law. It is a general principle that where a statute gives a privilege, and one wilfully violates such privilege, the common law will punish such violation. In town meetings every qualified voter has equal rights, and is entitled to give one vote for every officer to be elected. The person who gives more infringes and violates the rights of the other voters, and for this offense the common law gives the indictment. Fine, $10 and costs. C. v. Silsbee, 9 Mass. 417, B.

111.

Acc. C. v. Randolph, § 6.

(Va. General Ct., 1825.) Misdemeanors in General-Trading Votes. Case adjourned by the superior court for the opinion of this court. The indictment states that defendants, being magistrates, attended a meeting of the county court held to elect a clerk of the court and a revenue commissioner, and corruptly agreed the one to vote for one Holloway for commissioner in consideration that the other would vote for one Callaghan for clerk. The court found the case did not fall within the statute against buying and selling public offices, because neither would profit personally by the transaction. Further, BARBOUR, J., said: "The court being thus of opinion that this case was not embraced by the statute, but at the same time considering that that system of criminal jurisprudence must be essentially defective which had provided no punishment for acts such as are charged in the information, and which merit the reprehension of all good men, were led to inquire whether the acts charged in the information did not constitute an offense at common law; and they are of opinion that they do. In relation to those offenses which rise to the grade of felony there is usually, particularly in the designation of them by name, an accuracy in the defini

tion; as, for example, murder, burglary, arson, etc., in each of which the term ex vi termini imports the constituent of the offense; but in the general classification of crimes whatever is not felony is misdemeanor. In relation to these, then, they are not only numerous but indefinitely diversified, comprehending every act which, whilst it falls below the grade of felony, is either the omission of something commanded or the commission of something prohibited by law. As to these the law can do no more than lay down general principles, and it belongs to the courts of the country to apply those principles to the particular cases as they occur, and to decide whether they are or are not embraced by them. Thus the law, as a general proposition, prohibits the doing of any act which is contra bonos mores. The particular acts which come up to this description it is impossible to include in any precise enumeration; they must be decided as they occur, by applying this principle to them as a standard. Thus, again, it is now established that the incitement to commit a crime is itself criminal under some circumstances. 6 East, 464; 2 East, 5. Let us apply these principles to the present case. The defendants were justices of the peace, and as such held an office of high trust and confidence. In that character they were called upon to vote for others, for offices also implying trust and confidence. Their duty required them to vote in reference only to the merit and qualifications of the officers, and yet upon the pleadings in this case it appears that they wickedly and corruptly violated their duty and betrayed the confidence reposed in them, by voting under the influence of a corrupt bargain or reciprocal promise, by which they had come under a reciprocal obligation to vote respectively for a particular person, no matter how inferior the qualifications to their competitors. C. v. Callaghan,

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2 Va. Cas. 460, B. 116, C. 6.

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§ 21. "For Which the Wrongdoer May be Prosecuted and Punished."

(U. S. C. C., East Dist. La., 1892.) Excluding Chinese. Motion to quash an indictment for coming into the United States contrary to act of congress of May 5, 1892, § 4, which provides: "That any such Chinese person, or person of Chinese descent, convicted and adjudged to be not lawfully entitled to be or remain in the United States, shall be imprisoned at hard labor for a period not exceed ing one year, and thereafter removed from the United States, as hereinbefore provided." BILLINGS, D. J. The whole

proceeding of keeping out of the country a class of persons deemed by the sovereign to be injurious to the state, to be effective of its object, must be summary in its methods and political in its character. It could have no place in the criminal law, with its forms and rights and delays. After the unlawful presence of the alien

is determined, he must be sent back to his country by the treasury department at Washington. To prevent an unreasonable and possibly oppressive detention it must be within one year. Meanwhile he must keep from entering the community of the people of the United States, and therefore he is to be imprisoned. To prevent expense to the government, and as a sanitary matter, he is to be made to work. This, it seems to me, is the meaning of the clause relied upon to authorize trial and punishment for a crime. There is nothing in the statute declaring that it shall be a crime or a misdemeanor for a Chinese to come into the country. The unlawfulness is not made the basis of criminal procedure or detention, but rather is made the warrant to send him back. The imprisonment spoken of in the statute is that which is necessary to effectuate his return. It seems to me that § 4 deals with proceedings before the commissioner conducting an examination which is political and not criminal, and amounts to a direction to him and to the authorities who conduct the transportation or removal back to China, and is two-fold: 1, that a Chinese adjudged to be here unlawfully shall be removed within a year; 2, that till removal he shall be kept in prison and made to work. In accordance with these views, I must direct that this indictment be quashed, and that the defendant be remanded to the custody of the commissioner, to be dealt with according to law. U. S. v. Hing Quong Chow, 53 Fed. 233, B. 123.

DIFFERING FROM PRIVATE WRONGS.

§ 22. Since the criminal prosecution is by the state because of the injury to the public, it is no defense that the person especially injured (1) might have escaped but for his own negligence, (2) was equally guilty, (3) has been reimbursed, (4) has forgiven the wrong, (5) entrapped the offender, or even (6) consented to the act (7) unless want of consent is an essential element of the particular crime.

§ 23. "Might Have Escaped but for his Own Negligence."

(Eng. Sessions at Newgate, 1662.) Neglecting Wound. Edward Rew was indicted for killing Nathaniel Rew, his brother, and upon the evidence it was resolved that if one gives wounds to another, who neglects the cure of them, or is disorderly, and doth not keep that rule which a person wounded should do; yet if he die it is murder or manslaughter, according as the case is in the person who gave the wounds; because if the wounds had not been the man had not died; and therefore the neglect or disorder in the