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out an infected child, this act subjects the doer to the common law indictment. So if one brings into a public place a horse having the glanders, a disease communicable by infection to man, he is indictable. And in a New York case, the court observed: "It is a common nuisance, indictable, to divide a house in a town for poor people to inhabit in, by reason whereof it will be more dangerous in time of sickness and infection of the plague. So manufactures, lawful in themselves, may become nuisances, if erected in parts of towns where they cannot but greatly incommode the inhabitants, and destroy their health." Therefore, when cholera was supposed to be contagious, - a consideration, however, which does not directly appear to have influenced the decision, it was held, that a dwelling-house, divided into small apartments, thickly inhabited and kept in a filthy condition, was, during the cholera time, a nuisance abatable by persons residing near.4

§ 374. For the like reason, to render unwholesome any thing to be consumed in the community; as bread which is to be eaten, or a fountain or well of water which is to be drank; or to sell, or otherwise cause to be consumed, provisions injurious to the health, is an indictable offence.8



1 Rex v. Vantandillo, 4 M. & S. 73; Rex v. Burnett, 4 M. & S. 272; 1 East P. C. 226.

* Reg. v. Henson, Dears. 24, 18 Eng. L. & Eq. 107.

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* Meeker v. Van Rensselaer, 15 Wend. 397. See The State v. Purse, 4 McCord, 472; People v. Townsend, 3 Hill, N. Y. 479; and, as to the abatement of the nuisance, Welch v. Stowell, 2 Doug. Mich. 332, and Moffett v. Brewer, 1 Greene, Iowa, 348; Barclay v. Commonwealth, 1 Casey, 503; post, § 700.

'Rex v. Dixon, 3 M. & S. 11, 4 Camp. 12; Rex v. Haynes, 4 M. & S. 214. The State v. Buckman, 8 N. H. 203.

The State v. Smith, 3 Hawks, 378; The State v. Norton, 2 Ired. 40; Rex v. Treeve, 2 East P. C. 821; The State v. Buckman, 8 N. H. 203.

The doctrine of the text concerns public offences; but a mere private act of administering what is unwholesome to a particular individual only, has been held, in a nisi prius case, not to be indictable. Reg. v. Hanson, 2 Car.

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There can be no doubt this is so by the ancient common law; and, if it were not, there are English statutes to this effect, so old as to be common law with us. Thus also the injury to the public health is one ground on which the carrying on of noxious trades, in thickly settled neighborhoods, is held to be a public crime.2

§ 375. Considerations of public health enter into many statutory regulations, and regulations by municipal corporations, relating to matters of internal police. The rules of quarantine and other rules of a like nature, might be mentioned by way of illustration. But we are treating of the common law, not of statute law.

375 a. Let us add, however, that the doctrines of the present and subsequent sub-titles of this chapter lie at the founda. tion of statutory regulations and prohibitions, existing in most of the States, concerning the sale of intoxicating liquor,5 concerning lotteries, concerning gaming, and concerning various other like things. Doubts have arisen, whether legislation of this sort is constitutional. But if there is neither an express clause in the constitution of the State forbidding it, nor the equivalent of such clause in strong implication, and no objectionable details encumber the enactment, clearly it must

& K. 912, 4 Cox C. C. 138. Concerning this class of questions, however, there is some difficulty. An assault is a mere private advantage taken of an individual; yet it is indictable; and, on the same reason, there may plainly be circumstances in which the private administering of unwholesome things will be indictable likewise, as a question of principle. Indeed there are grave reasons for doubting the correctness of the decision itself, referred to in this note.

1 Burnby v. Rollitt, 11 Jur. 827; 4 Bl. Com. 162. And see ante, § 11, 13.

2 Rex v. Davey, 5 Esp. 217; Rex v. Neil, 2 Car. & P. 485.

See Rex v. Harris, 4 T. R. 202, 2 Leach, 4th ed. 549.

* See Commonwealth v. Fahey, 5 Cush. 408; Harrison v. Mayor of Baltimore, 1 Gill, 264.

5 Vol. II. § 928 et seq.

6 Vol. II. § 821 et seq.

Vol. II. § 506 et seq.

be deemed authorized. To hold otherwise would be to deny the power of the legislature to protect at all the various public interests now referred to. Because, if the legislature may protect them by its laws, it must be competent to decide what particular provisions are necessary for this purpose. And though a citizen or a judge may think its decision unwise, neither citizen nor judge has been vested with the authority, which reposes alone in the legislature, to act upon the question. No power of our governments can declare a statute void simply because of its being unwise.1

V. Protection to the Public Morals, Religion, and Education.

§ 376. Morality, religion, and education are the three main pillars of the State, and the substance of all private good. A community from which they are banished presents more than the gloom of original chaos. Therefore they should be objects of primary regard by the laws. How far they are such, in fact, as concerns our criminal jurisprudence, let us now


§ 377. Our English ancestors had always a form of religion established by law. But those wiser Englishmen who settled this country deemed, that religion, in its essence and spirit, flourishes best when left to its own forms. There are in England, therefore, growing out of its church establishment, several statutory and common law offences unknown in the United States. Such are simony, being the corrupt presentation of any one to an ecclesiastical benefice; 2 non-conformity to the worship of the church; beating a


1 See Vol. II. § 1010. The Vermont court, in conformity with these doctrines, has held, that the railroads may be compelled by legislative act to maintain cattle guards at the crossings. Thorpe v. Rutland & Burlington Railroad, 1 Wms. Vt. 140.

* 4 Bl. Com. 62; 1 East P. C. 35.

4 Bl. Com. 51.

clerk in orders, as an offence of a higher grade than an ordinary battery;1 and some others. Yet, in a more general sense, Christianity is a part of our common law.2 Whether it is so far such, that apostasy, which is a total renunciation of Christianity by those who have once embraced it;3 those darker heresies which tend to overturn Christianity itself, and not merely some particular form of it; religious imposture,5 false and pretended prophecies, and the like, are the subjects of indictment here, as they were in England when our forefathers came to this country, we have probably no direct adjudications; but they seem practically to have dropped silently out of the catalogue of crimes on both sides of the Atlantic. And the good-sense of the present age has taught, that the opinions of men should not be restrained by the public laws, unless some injurious act is committed. This, indeed, we have seen to be a fundamental principle of the common law itself."


§ 378. Public profane swearing and blasphemy & have been held in this country to be indictable at the common law; yet less, according to some of the judges, as tending to sap the foundations of Christianity, than as disturbing the peace and corrupting the morals of the community.9 The observance of the Lord's day is, both here and in England, so fully enforced by statutes, that it is of little practical consequence to

1 4 Bl. Com. 217.


Updegraph v. Commonwealth, 11 S. & R. 394; People v. Ruggles, 8 Johns. 290; Shover v. The State, 5 Eng. 259; 1 Bancroft Hist. U. S. 243. 34 Bl. Com. 43.

* 4 Bl. Com. 44. And see Reg. v. Gathercole, 2 Lewin, 237.

5 4 Bl. Com. 62.

64 Bl. Com. 149.

7 Ante, § 312.


See Vol. II. § 68 et seq.

People v. Ruggles, 8 Johns. 290; The State v. Jones, 9 Ired. 38; The State v. Chandler, 2 Harring. Del. 553; Updegraph v. Commonwealth, 11 S. & R. 394. And see The State v. Kirby, 1 Murph. 254; Commonwealth v. Kneeland, 20 Pick. 206; The State v. Ellar, 1 Dev. 267.

inquire, whether, without them, a breach of this duty is cognizable criminally. Its violation has been considered by one of our State courts,2 not to be a common law offence in this country. Yet if we reflect, that such observance contributes to the public repose, health, morals, convenience, as well as religion; that our ancestors were a Sabbath-keeping people; and that the law in both countries rests on exactly the same we shall see room for at least the doubt, whether this part of the English system did not come to us with the great body of English law. If it should be found to have originated in ancient acts of parliament, rather than imme morial usage, the result would not therefore be different.


379. But however uncertain may be the precise extent to which the common law protects Christianity, there is not question that it practically and fully cherishes the public morals. And it punishes as a crime every act which it deems sufficiently evil and direct, tending to impair the public morals. Thus the keeping of bawdy-houses; the publishing of obscene prints and writings; the public utterance of obscene words; the indecent and public exposure of one's person, or the person of another; and, generally, all

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11 East P. C. 5; The State v. Brooksbank, 6 Ired. 73; Nabors v. The State, 6 Ala. 200; The State v. Schnierle, 5 Rich. 299. And see The State v. Williams, 4 Ired. 400.

The State v. Brooksbank, 6 Ired. 73.

3 Ante, § 11.


Ante, § 320-324.

4 Bl. Com. 168; Reg. v. Williams, 10 Mod. 63, 1 Salk. 384; Smith v. The State, 6 Gill, 425; The State v. Evans, 5 Ired. 603; Smith v. Commonwealth, 6 B. Monr. 21; Ross v. Commonwealth, 2 B. Monr. 417; People v. Erwin, 4 Denio, 129; Commonwealth v. Harrington, 3 Pick. 26; Reg v. Pierson, 1 Salk. 382; Jennings v. Commonwealth, 17 Pick. 80. And see The State v. Bailey, 1 Fost. N. H. 343.

• Commonwealth v. Holmes, 17 Mass. 336; Commonwealth v. Sharpless, 2 S & R. 91.

'Bell v. The State, 1 Swan, Tenn. 42.

* Britain v. The State, 3 Humph. 203; The State v. Roper, 1 Dev. &

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