356 wise.3 When statutory powers are conferred under circumstances in which they may be exercised with a result not causing any nuisance, and new and unforeseen circumstances arise, which render the exercise of them impracticable without causing a nuisance, the persons so exercising them are liable to indictment.357 (c) Benefit to the Community.-If the act of a person, or his use of property, amounts to a public nuisance under the rules and principles explained in the preceding sections, it is no defense for him to say that the public may be or is in fact benefited thereby.358 Thus, on an indictment for a nuisance in erecting a wharf on public property, it is no defense to show that such erection has been beneficial to the public.359 And, on an indictment for maintaining an offensive business in a thickly-settled community, it is no defense to show that the business is useful or necessary, or that it contributes to the wealth or prosperity of the community.360 (d) Acquiescence by the Public.-According to the better opinion, long acquiescence by the public in conditions may prevent or bar an indictment for nuisance based upon such conditions. Thus, it was held in an English case, that an acquiescence for fifty years by the neighborhood prevented an indictment for continuing a noxious trade.361 It was also held that an indictment would not lie for setting up a noxious manufac 356 Reg. v. Scott, 3 Q. B. 543, 2 Gale & D. 729; Rex v. Pease, 4 Barn. & Adol. 30. 357 Reg. v. Bradford Nav. Co., 6 Best & S. 631, 11 Jur. (N. S.) 769. 338 Anon., 12 Mod. 342, Beale's Cas. 843; Respublica v. Caldwell, 1 Dall. (Pa.) 150, Beale's Cas. 177; People v. Detroit White Lead Works, 82 Mich. 471, 46 N. W. 735, Beale's Cas. 851; State v. Kaster, 35 Iowa, 221; Seacord v. People, 121 Ill. 623, 13 N. E. 194; Rex v. Ward, 4 Adol. & El. 384 (overruling Rex v. Russell, 6 Barn. & C. 566). 359 Respublica v. Caldwell, 1 Dall. (Pa.) 150, Beale's Cas. 177. 360 People v. Detroit White Lead Works, 82 Mich. 471, 46 N. W. 735, Beale's Cas. 851. 361 Rex v. Neville, Peake, 93, per Lord Kenyon. But see Ashbrook v. Com., 1 Bush (Ky.) 139, 89 Am. Dec. 616; Anon., 12 Mod. 342, Beale's Cas. 843. tory in a neighborhood in which other offensive trades had long been borne with and acquiesced in, where the inconvenience to the public was not greatly increased.362 A man carrying on a noxious business in a place where it has been long established is indictable for a nuisance if the mischief is materially increased by a change in the manner or extent of carrying it on; but if the business is increased, with no additional mischief, by adoption of a better mode of carrying it on, an indictment will not lie. 363 (e) Things not Nuisances when Erected.-Whether an indictment will lie where the thing complained of was not a nuisance when first erected, but became so afterwards, is not clearly settled. It has been held in some jurisdictions that if a person sets up a noxious trade remote from habitations and public roads, and, after that, new houses are built and new roads constructed near it, he may continue his trade, although it may be a nuisance to persons living in such houses, or passing along such roads.364 Other courts have taken a contrary view, and have held that when a business becomes a nuisance by reason of residences being erected around it and roads or streets constructed, "it must give way to the rights of the public, and the owner thereof must either devise some means to avoid the nuisance, or must remove or cease the business."365 He certainly cannot change the manner or extent of carrying on the business, so as to increase the mischief and injury." 366 362 Rex v. Neville, Peake, 91, per Lord Kenyon. See, also, Com. v. Miller, 139 Pa. 77, 21 Atl. 138, 23 Am. St. Rep. 170, Beale's Cas. 849. 363 Rex v. Watts, Moody & M. 281, per Lord Tenderden. 364 Anon., 12 Mod. 342, Beale's Cas. 843; Rex v. Cross, 2 Car. & P. 483; Ellis v. State, 7 Blackf. (Ind.) 534. 365 People v. Detroit White Lead Works, 82 Mich. 471, 46 N. W. 735, Beale's Cas. 851; Taylor v. People, 6 Park. Cr. R. (N. Y.) 347; Com. v. Upton, 6 Gray (Mass.) 473. 366 Rex v. Watts, Moody & M. 281. IV. OFFENSES AGAINST GOD AND RELIGION. 457. In General.-In this country, no act is a crime merely because it is contrary to the doctrines of the Christian religion, or any other religion. In England, various acts were punished at first in the ecclesiastical courts, and later, by statutes, in the civil courts, as offenses against God, the Christian religion, and the established church, and some acts were punished at common law. Among these were apostacy, or a total renunciation of Christianity by embracing either a false religion, or no religion at all, after having once professed Christianity ;337 heresy, which consists, not in a total denial of Christianity, but in a denial of some of its essential doctrines, publicly and obstinately avowed;368 offenses against the established church, by reviling its ordinances, or failure to conform to its worship;369 blasphemy;370 profane swearing and cursing;371 witchcraft;372 religious impostures, such as falsely pretending an extraordinary commission from heaven, and terrifying and abusing the people with false denunciations of judgments;373 simony, or the corrupt presentation of any one to an ecclesiastical benifice for gift or reward;374 Sabbath breaking;375 drunkenness ;376 and open and notorious lewdness.377 867 9 & 10 Wm. III. c. 32; 4 Bl. Comm. 43. 368 1 Hale, P. C. 384; 2 Hen. IV. c. 15; 2 Hen. V. c. 7; 31 Hen. VIII. c. 14; 4 Bl. Comm. 44-49. 369 4 Bl. Comm. 50-59; 1 Edw. VI. c. 1; 1 Eliz. c. 1; and other statutes mentioned by Blackstone. 370 4 Bl. Comm. 59. 371 4 Bl. Comm. 60. 372 4 Bl. Comm. 60. See post, § 471. See post, § 470. This was at one time punished in New England with death, as it was in England. 373 4 Bl. Comm. 62. 374 4 Bl. Comm. 62. 375 4 Bl. Comm. 63. 376 4 Bl. Comm. 64. 377 4 Bl. Comm. 65. See ante, § 451. See post, § 462 et seq. In this country there is no established church, as in England, and no act is a crime merely because it offends against any church, or against God, or against the doctrines of any religion. Some of the acts above mentioned, if committed under such circumstances as to constitute a public nuisance, are indictable in this country as misdemeanors at common law, but this is because they annoy the community or shock its sense of morality and decency, or tend to corrupt the public morals, and not merely because the act is forbidden by God, or is contrary to the doctrines of Christianity, or of any church. Blasphemy, profane swearing and cursing, drunkenness, and lewdness are all misdemeanors at common law if committed openly and notoriously,378 but, as a rule, it is otherwise if they are committed in private. To commit fornication in private, even when it is accompanied by seduction, or to get drunk in one's own house, is no offense at all at common law, though clearly an offense against God and religion.379 To work on the Sabbath is a violation of God's command, but it is not a crime unless the work is done in such a way as to disturb the public rest, or unless it is expressly prohibited by statute.380 It is almost needless to say that there are no such crimes in this country as apostacy, heresy, nonconformity to the worship of a church, etc. The constitution of the United States expressly declares that "congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,"381 and the state constitutions contain similar limitations on the power of the state legislatures. 378 Post, §§ 463-472. Ecclesiastical offenses are said in Grisham v. State, 2 Yerg. (10 Tenn.) 595, Mikell's Cas. 191, n., to be punishable by our courts as the successors of both the temporal and ecclesiastical courts of England, but that view is not sound, and the remarks were obiter, the offense being open and notorious lewdness which without doubt the temporal courts can punish. Post, § 463. 379 Post, §§ 462, 472. 380 Ante, § 451. 381 Const. U. S. Amend. art. 1. Christianity as a Part of the Common Law.-It has been said in a number of cases that Christianity is a part of the common law,382 but from what is said above it is clear that this is true only in a very limited sense. The fact that most people in this country, as in England, are Christians, makes certain acts, like blasphemy and open and notorious lewdness, offensive, so as to render them public nuisances, and for this reason indictable at common law; but, as stated above, no act is punished at common law in this country merely because it is contrary to the Christian religion. Nor, in view of our constitutions, could an act be punished for this reason alone.383 It must be conceded, therefore, that Christianity is not, in any proper sense, a part of our common law,383a V. OFFENSES AGAINST MORALITY AND DECENCY. 458. In General.—Any act which directly tends to corrupt the public morals, or which shocks the public sense of morality and decency, is a nuisance and misdemeanor at common law. As was stated in a previous section,384 "immorality" and "crime" are by no means convertible terms. The common law does not undertake to punish a man for his acts merely because they are immoral. There must be something more than this. There must be some injury or prejudice to the community at large. A man may be guilty of fornication or adultery in private, or be otherwise guilty of the grossest immorality in his private life, without being amenable to the criminal law, unless 382 4 Bl. Comm. 69; Taylor's Case, 1 Vent. 293, Beale's Cas. 96; People v. Ruggles, 8 Johns. (N. Y.) 290, 5 Am. Dec. 335; Lindenmuller v. People, 33 Barb. (N. Y.) 548; Shover v. State, 5 Eng. (10 Ark.) 259; Chapman v. Gillet, 2 Conn. 40; Updegraph v. Com., 11 Serg. & R. (Pa.) 394; Vidal v. Philadelphia, 2 How. (U. S.) 127. 383 Const. U. S. Amend. 1. See Specht v. Com., 8 Pa. 312, 49 Am. Dec. 518. See ante, § 451, note 340, and cases there cited. 383a Bloom v. Richards, 2 Ohio St. 387; Board of Education of Cincinnati v. Minor, 23 Ohio St. 211, 13 Am. Rep. 233. 384 Ante, § 28. |