arms near houses, for the purpose of annoying the inhabitants, is a criminal breach of the peace.

§ 161. Forcible entry and detainer. Forcible entry and detainer are common law misdemeanors, committed by violently taking lands or tenements with menaces, force, and arms, from the possession of another, without authority of law; or in like manner detaining them. These offenses are also regulated by statutes. One may lawfully detain by force what is his in right and possession; but if he is out and opposed by force, he should resort to court to obtain his due, unless he can put himself into possession peaceably.

§ 162. Affray. An affray is the act of two or more persons fighting in a public place, to the terror of the people in the peace of the state there being. If the fighting be in a private place with no others in attendance it is but assault and battery. It takes two to commit this offense. If one assaults, and the other unwillingly defends himself only so far as is necessary, he is not guilty of affray. If one of the persons charged pleads self-defense and is acquitted on this ground, the other must be discharged also. If only words and threatening gestures are indulged in, but no attempt to use force, this may be a breach of the peace, but it is no affray.

§ 163. Riots, routs, and unlawful assemblies. These can be committed only by three or more persons, not by a less number. An unlawful assembly occurs when three or more assemble to do an unlawful act, as to pull down a house of another wrongfully, and part without making any motion towards executing their design. A rout occurs

when three or more meet to do an unlawful act upon a common quarrel and make some advance toward doing it. A riot is the doing of an unlawful act of violence by three or more, either with or without a common cause. If three or more persons agree to meet to furnish to a newly married pair that kind of a serenade usually enjoyed only by the entertainers, and commonly called a charivari, that would be a conspiracy; if they meet accordingly, that would be an unlawful assembly; if they then start to march to the place where the serenade is to be given they are guilty of rout; if they begin the performance they are guilty of riot.

§ 164. Libel. A libel is a malicious defamation of any person, made public by printing, writing, signs or pictures, tending to blacken the memory of the dead with intent to provoke the living, or injure the reputation of the living, provoke him to wrath, or expose him to hatred, contempt or ridicule. It is punished criminally because it tends to breaches of the peace; and at the old common law, proof of the truth of the statement was no defense, which may have caused the popular maxim: the greater the truth the greater the libel. Oral slander is merely a civil wrong not taken notice of by the state, but treated as the idle talk of wagging tongues. But words maliciously written or printed may be a libel which would not be civilly actionable if spoken. Malice is presumed from the proof of the publication. Publication is made when the matter is exhibited to anyone, even the person libeled only. But nothing privately written and shown to him only is a civil libel, though he permit others to see it.

What would otherwise be a libel may be excused on any of the several grounds of privilege: that it was published to one at his request and for his protection, as a report to a tradesman on the credit due to one asking for goods on credit; that it was published by a newspaper without malice as a part of the news of the day; that it was part of the necessary pleadings in a case in court, or a speech in a legislative body. If the publication is actually malicious it is an abuse of the privilege and destroys it. The publishers of newspapers and magazines are liable criminally for what appears in their publications though inserted by a servant without previous authority or subsequent ratification; for it would expose the public to too great danger if the offense could be committed and put off upon a subordinate. Proof of authority in such cases would also be hard to make.

§ 165. Morals in general. As immorality tends to undermine the foundations of society and impose burdens and expense on the public to care for the offenders and protect the rest of the public from the results, the worst forms of immorality are punished criminally. Immorality in public is criminal because it outrages the public sense of decency and tends to general immorality by others. The principal crimes of this sort are bigamy, adultery, miscegenation, incest, sodomy, seduction, illicit co-habitation, fornication, indecent exposure of the person, and uttering obscene and profane language.

§ 166. Bigamy is going through the form or ceremony of marriage by one having another spouse living. It was made felony by the statute of 1 James I, c. 11. By some

American statutes the crime is felony; by some, a misdemeanor. If one goes through the form of marriage having another spouse at the time, the crime is complete without any act of consumation. But if one whose first marriage was for any cause absolutely void goes through the form, this is not bigamy, for he has no other spouse living. If the first marriage was valid the offense is no less by reason of the fact that the second marriage was void on other grounds than the fact of the prior marriage. All bigamous marriages are absolutely void; and this argument logically applied would render all bigamy unpunishable. If one having a spouse living goes through the form of marriage with another, this second marriage is void; now if the first spouse dies or is divorced, and he then goes through the form of marriage with a third, this third marriage is neither bigamous nor void; for at the time it is celebrated the person entering into it has no other spouse living. The first marriage is dissolved by death or divorce, the second marriage never was of any validity, and so the third marriage is lawful and valid (1). Whether an honest but erroneous belief, on probable cause and due inquiry, that the other spouse is dead or divorced, is a defense to a charge of bigamy is a debated question, depending largely upon the construction of the statute under which the charge is made (2). Religious belief in bigamous marriages is clearly no defense (3).

§ 167. Adultery is illicit intercourse between persons

either of whom is married to another. Under the English ecclesiastical law, by which such offenses were punished in the ecclesiastical courts in the early days of the common law, it was immaterial which party was married, the man or the woman, and both were guilty. There are three reasons for criminal punishment: (1) the introduction of a spurious heir to the estate, which could happen only in case of adultery by a married woman for which reason the old Roman law punished the offense in this case only, but punished both parties; (2) the violation of the marriage vow, which is committed only by the married party; and (3) the spread of immorality and the destruction of the family relation, the unit of civilized society, which is the reason that most states punish both parties. In a few states only the married party is punished for adultery. If one of the parties is innocent, having gone through the form of marriage to the other under the belief that he or she was single, the person so acting on probable grounds for so doing is not guilty.

§ 168. Miscegenation is a purely statutory crime, and consists in the marriage of persons of different race in violation of the statute prohibiting it. Such marriages are often declared by the statute to be absolutely void. The offense is no less by reason of the fact that the marriage is also void because bigamous.

§ 169. Incest is sexual intercourse between persons so nearly related to each other that a marriage between them would be illegal. It has been argued that the crime can be committed only by consent and only by two persons; and therefore if one party is not guilty because violated