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the offense of incontinency, and that by that statute the jurisdiction was transferred to the ecclesiastical courts. * # After the statute of circumspecte agatis, the court of king's bench did. not exercise jurisdiction in punishing the mere act of incontinence. It, however, retained its general power of punishing offenses contra bonos mores, and it is presumed might have punished an offense of incontinence combined with circumstances, which, beyond the mere criminality of the simple fact, were calculated to make it injurious to society; as, in case of incontinence in a street or highway. But, in such cases the jurisdiction would not spring from the criminal character of the simple fact, but from its publicity; as, there are many cases where an act, which is not criminal in private, becomes penal by the publicity which attends its perpetration. The act of Sir Charles Sedley, in running naked through the streets, derived its whole criminality from its publicity. It is too late now to assume jurisdiction over a new class of cases, under the idea of their being contra bonos mores. We must consider the practice of the English courts, from which we derive the principle, as having settled in the course of many centuries, the true limits and proper subjects of this principle. If we are to disregard these landmarks, and take up any case which may arise under this principle, as res integra, then might it be extended to cases which none has yet thought of as penal. A case of slander may display as much baseness and malignity of purpose, as much falsehood in its perpetration, as ruinous effects in its consequences, and as pernicious an example in its dissemination, as this case of seduction. And yet none would think of prosecuting it criminally. It is true, that if something peculiar in our situation had given rise to a class of cases contra bonos mores, as in regard to our slaves, which could not have existed in England, we might be justified in applying the rule in the absence of all precedent. But, in relation to seduction, no such supposition can be made, as we know from the books of reports that many such cases have occurred there. And we even see that in two cases, it was in fact the prominent feature, and yet the jurisdiction in one of them [R. v. Delaval, § 19] was made to hang on another hinge; and in the other, which was never decided, was certainly fortified by the allegation and proof of a common law misdemeanor. From these premises, it would seem to be proper to infer that since the statute of circumspecte agatis, in England, the common law courts have never taken jurisdiction of the mere offense of incontinence, nor of any offense of incontinence combined with other reprehensible circumstances, not in themselves importing a common law misdemeanor: that in this country the legislature has taken up the subject of simple fornication and adultery, and has defined a precise mode of proof, and a fixed and certain punishment; that there is no reason to believe, that these statutes are cumulative; but, that they occupy the whole ground; and that, as in England, the offense being merely spiritual,

is not, under any circumstances, allowed to be the foundation of a criminal prosecution in the courts of common law; so here, by parity of reasoning, the offense being entirely statutory, it shall not be converted into the foundation of a common law misdemeanor. Reversed. Anderson v. C., 5 Randolph 627, 16 Am. Dec. 776, Mi. 64.

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(Tenn. Sup. Ct., 1851.) Case of First Impression. Appellant was convicted of using obscene language in public. MCKINNEY, J. * Upon the first point, the argument for the plaintiff in error rests upon the narrow and unsubstantial ground, that no precedent, or adjudication, has been found in support of such an indictment. Admitting this to be true, for the present, what does it establish? If the case stated in the indictment falls within the operation of clear, well defined, and well established principles of law, is it to be urged against the maintenance of this prosecution, that no similar case has heretofore occurred calling for the like application of such principles? Surely not, at this day. Are not innumerable instances to be found in the modern reports, both of England and America, in which the liberal, enlightened, and expansive principles of the common law have been adapted and applied to new cases, for which no precedents were to be found, so as to meet the ever varying condition and emergencies of society? And this must continue to be so, unless a stop be put to all further progress of society; and unless a stop be also put to the further workings of depraved human nature, in seeking out new inventions to evade the law. Affirmed. Bell v. S., 1 Swan (31 Tenn.) 42,

Mi. 59.

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(Pa. Sup. Ct., 1892.) Test of Criminality-Indictment for Solicitation to Murder. Defendant moved to quash, and the motion being refused, appealed. PER CURIAM: It may be conceded that there is no statute which meets this case, and if the crime charged is not an offense at common law, the judgment must be reversed. What is a common law offense? We endeavored to answer this question in C. v. McHale, 97 Pa., 397, 410, 39 Am. Rep. 808, Mi. 27, in which we held that offenses against the purity and fairness of elections were crimes at common law, and indictable as such. We there said: "We are of opinion that all such crimes as especially affect public society are indictable at common law. The test is, not whether precedents can be found in the books, but whether they injuriously affect the public policy and economy." Tested by this rule, we have no doubt that the solicitation to commit murder, accompanied by the offer of money for that purpose, is an offense at common law. Affirmed. C. v. Randolph, 146 Pa. St. 83, 23 Atl. 388, 28 Am. St. Rep. 782, B. 134, Kn. 85.

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§ 7. "And by the Constitution and Statutes of the State."

(Ill. Sup. Ct., 1860.) Seduction-Implied Abrogation. Defendants bring error on conviction of conspiracy to seduce M., assigning that no offense was charged in the indictment. CATON, C. J.

* The objection that this being but a common law offense, is not punishable in this state, where we have a criminal code defining most criminal offenses and prescribing their punishment, is answered by the case of Johnson v. P., 22 Ill. 314. It is there shown, that our criminal code prescribes punishment for offenses not enumerated, which can mean nothing but common law offenses, showing conclusively that it was not the intention of the legislature to repeal that portion of the common law by implication. Smith v. P., 25 Ill. 17, 76 Am. Dec. 780, B. 811.

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(Iowa Sup. Ct., 1860.) Slander, Sodomy-Implied Change by Statute. LOWE, C. J. This was an action of slander, for charging the plaintiff with having committed the crime of sodomy. No special damages being laid in the petition for uttering and publishing the slanderous words, a demurrer was filed to the effect that the words complained of imputed no crime which was indictable under the criminal laws of the state, and were therefore not actionable per se. The demurrer was overruled, and the question brought up to this court for revision. Article 5, § 6, of the constitution, declares that the district courts of this state shall have jurisdiction in civil and criminal matters arising in their respective districts in such manner as shall be prescribed by law. The mode thus prescribed is contained in our Code Crim. Proc., and is limited, we think, to the prosecution and punishment of offenses therein enumerated. This is inferable from the powers and duties of the grand jury and the court therein expressed. Besides, the statutory offenses so nearly cover all the common law offenses that it is reasonable to infer that those which are omitted were intended to be excluded. In this state the mode of punishing the crime of sodomy is not prescribed by law, and in the absence of such statutory authority, the court can exercise no such power. The demurrer in this case should have been sustained and the cause dismissed. Estes v. Carter, 10 Iowa 400, F. 40.

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(Minn. Sup. Ct., 1866.) Implied Abrogation-Conspiracy. Indicted for conspiracy to assault. Demurrer, that no statute created such a crime. Overruled, and defendant appeals. "That our statutes expressly abolish common-law offenses is not pretended. A statute which is clearly repugnant to the common law must be held as repealing it, for the last expression of the legislative will must prevail. Or we may admit, for the purposes of this case, that when a new statute covers the whole ground occupied by a previous one, or by the common law, it repeals by implication the prior law,

though there is no repugnancy. Beyond this the authorities do not go in sustaining a repeal of the common law by implication. On the contrary, it is well settled that where a statute does not especially repeal or cover the whole ground occupied by the common law, it repeals it only when and so far as directly and irreconcilably opposed in terms. See 1 Bish. Cr. Law (3d ed.) §§ 195-200, and cases cited in notes to said sections. Our statutes fall far short of covering the whole field of common-law crimes. It is not pretended that conspiracy is by them made a crime, and we think it very clear that libel is not, and many other instances might be added. We think, therefore, that they do not by implication abolish these crimes. [Here the judge refers to instances in which the statutes regulate prosecutions for libel and other offenses not made. criminal by statute, or mention common-law crimes.] These sections are an admission or recognition by the legislature of the fact that common-law offenses may be punished in this state. This conclusion is in accordance with the views entertained by the courts generally throughout the United States. See authorities cited in note to § 36, 1 Bish. Cr. Law (3d ed.)" Per WILSON. C. J. Berry, J., dissented. Exceptions overruled. S. v. Pulle, 12 Minn. 164 (Gil. 99), F. 41. Mi. 16.

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Common law crimes are held to be abolished in Ohio. See Smith v. S., § 12. Crime of libel not abolished by implication. C. v. Chapman, § 5. Further as to conspiracy, § 61.

(Mich. Sup. Ct., 1867.) Technical Terms in Statute-Burglary in "Dwelling House." Pitcher was convicted on an information for feloniously receiving wool burglariously taken by Reed from Moore's dwelling house. It was proved that the wool was taken by Reed at night from a barn back of Moore's house and connected with it by fences so as to inclose the back yard, into which the barn opened. He brings error, claiming that Reed's act was not burglary because the statute confines that crime to felonious breaking and entering of the "dwelling house," and therefore defendant could not be sentenced to confinement in the state prison. "The statutory definition of burglary in a dwelling house is the same as that of the common law, and we must infer that the statute designs simply to provide for the punishment of the common-law offense, unless we discover some reason for believing that the legislature employed the definition in some new and restricted sense.

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It is a cardinal rule in the interpretation of statutes that words which have acquired a well defined technical meaning are to be understood in their technical sense, especially when employed by way of definition. There can be no doubt that the barn in question would have been regarded as within the curtilage, and embraced by the term 'dwelling house' as a part of the congregated buildings occupied and used by the family for domestic purposes, and that consequently the act of Reed would have been a burglarv at the common law. 4 Bl. Com. 225; P. v. Tavlor, 2 Mich. 250.

And see 1 Bish. Cr. Law, § 171. It was therefore, I think, a burglary under the statute, and correctly described in the information." Per COOLEY, J. Affirmed. Pitcher v. P., 16 Mich. 142, F. 35.

That technical words are to be understood in the common law technical sense. U. S. v. Smith, § 2; C. y. Chapman, §5. What "dwelling house" means in burglary and arson, §§ 112, 119.

(Mass. Sup. Judicial Ct., 1865.) Watered Milk. Indictment for selling adulterated milk contrary to St. 1864, c. 122. Defendant moved to quash on the ground that the statute was unconstitutional. "The argument is this: It is innocent and lawful to sell pure milk, and it is innocent and lawful to sell pure water; therefore, the legislature has no power to make the sale of milk and water, when mixed, a penal offense, unless it is done with fraudulent intent. But it is notorious that the sale of milk adulterated with water is extensively practiced with fraudulent intent. It is for the legislature to judge what reasonable laws ought to be enacted to protect the people against this fraud, and to adapt the protection to the nature of the case. They have seen fit to require that every man who sells milk shall take the risk of selling a pure article. No man is obliged to go into the business." Per CHAPMAN, J. Judgment affirmed. C. v. Waite, 11 Allen (Mass.) 264, 87 Am. Dec. 711, F. 33.

See several similar cases. § 53. As to acts made criminal regardless of intent, see § 42.

§ 8. "Except as Restrained by United States Constitution."

U. S. Const., Art. 1, § 10. No state shall bill of attainder, ex post facto law, or

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U. S. Const., Amend. XIV, § 1. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(U. S. Sup. Ct., 1887.) Prohibition. Act Kan. Feb. 19, 1881, prohibits the manufacture and sale of intoxicating liquors within that state, except for medical, scientific, and mechanical purposes, and punishes the manufacture and sale thereof, except for those purposes, as a misdemeanor, and declares all places where such liquors are manufactured, sold, bartered, or given away in violation of this law to be common nuisances, and provides for their abatement. Defendant, who had been engaged in the business of brewing beer prior to the passage of this act, and had made extensive improvements peculiarly adapted to such business, was arrested for selling beer manufactured prior to the enactment of the act. Held, that the act did not deprive defendant of any right, privilege, or