benefit; that the concurrence of the will in what is done, where it has a choice, is the only thing that renders a human action culpable, or, in other words, that to make a complete offence there must be both a will and an act. This axiom, as it may be termed, is applied as well to offences created by statute as to those which are such at common law. The variety of cases in which this absence of will excuses those who would otherwise be offenders have been mentioned in the course of the argument, and among them we find that on which this defence proceeds, namely, an act which proceeds from compulsion and inevitable Lecessity. Whether the legislature might not by apt words punish an act taking place under such circumstances is foreign from the present inquiry; but where this is not done in terms, they are supposed to know that, by the rules of the common law, it is always considered as excepted, and therefore do not make the exception themselves. The cases which have been produced by the appellant are as strong and conclusive as perhaps were ever submitted to a Court in support of any proposition of law. If the necessity which leaves no alternative but the violation of law to preserve life be allowed as an excuse for committing what would otherwise be high treason, parricide, murder, or any other of the higher crimes, why should it not render venial an offence which is only malum prohibitum, and the commission of which is attended with no personal injury to another. The Court, therefore, cannot but yield to the weight of so many authorities, especially, too, when every decision accords with reason, common sense, and the feelings of mankind, which are universal and indelible.

But is it so very clear that the law itself does not make the exception? The Court is inclined to think that, on a fair comparison of the different acts with each other, this will be found to be done. The legislature, by some of the provisions of the enforcing law, as it is called, certainly appear to have been of the same opinion.

The Court, therefore, thinks that the necessity which is proved to have existed excused the party from all guilt, and of course from the forfeiture which is sought; and that none having accrued, it is not among those cases which are referred for mitigation to the Secretary of the Treasury.

The sentence of the District Court must accordingly be reversed.

COMMONWEALTH v. BROOKS.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1868.

[Reported 99 Massachusetts, 434.]

COMPLAINT for the violation of s. 34 of an ordinance of the city of Boston relating to carriages, which section is printed in the margin."

1 "No owner, driver, or other person having the care or ordering of any chaise, carryall, hackney carriage, truck, cart, waggon, handcart, sleigh, sled, handsled, or any

(Laws and Ordinances of Boston, ed. 1863, p. 106) in suffering the defendant's wagon to stop in South Market Street in Boston more than twenty minutes.1

GRAY, J. It is very clear that the defendant was not proved to have violated the city ordinance on which he was prosecuted. No person transgresses the ordinance, who does not voluntarily suffer his vehicle. to stop in the street for more than twenty minutes. The defendant, indeed, drove into South Market Street more than twenty minutes before four o'clock, and intended to remain in that street until four o'clock. But he had the right to travel in the street, if he did not voluntarily suffer his vehicle to stop in it for the prohibited period. If he had arrived on his stand more than twenty minutes before four o'clock and voluntarily remained there with his wagon until that hour, or if he had voluntarily stopped his wagon for more than twenty minutes at any other place in the street, it would have been a violation of the ordinance. So, perhaps, if he had stopped for more than twenty minutes in all in two places near each other, in the execution of one purpose. But it is unnecessary in this case to consider under what circumstances repeated intermissions of travel, or time spent in driving about the street without intention of moving onward towards a particular destination, might be treated as going to make up one stopping, within the meaning of the ordinance; for it appears that the defendant, while driving his wagon through the street towards his stand, was delayed by the crowding of other vehicles which he could not control for five or six minutes, and then drove on and occupied his stand. He did not voluntarily stop at all before arriving at his stand; he did not stop on his stand but fifteen minutes before four o'clock; and after four o'clock, being a marketman, engaged in bringing vegetables into the city and selling them from his wagon at a stand occupied by him within the established limits of the market, though in a public street, he is admitted to have had a right, by virtue of the exception in the ordinance, and of the St. of 1859, c. 211, to be and remain upon his stand with his wagon. New trial ordered.

other vehicle whatsoever, new or old, finished or unfinished, with or without a horse or horses, or other animal or animals harnessed thereto, shall suffer the same to stop in any street, square, lane, or alley of this city more than five minutes, without some proper person to take care of the same, or more than twenty minutes in any case; and any person so offending shall be liable to a fine of not less than three, nor more than twenty dollars for each offence. But this section shall not apply to the carriages of physicians while visiting the sick, or to the vehicles of market and provision men, who may stand with the same, without the limits of Faneuil Hall Market, until eleven o'clock in the forenoon, at such places in the city as the board of aldermen may designate, for the purpose of vending provisions."

1 The evidence is omitted.

SECTION VII

Custom.

ANONYMOUS.

COMMON PLEAS.

[Reported 2 Leon. 12.]

MANWOOD, J., said: When I was servant to Sir James Hales, one of the Justices of the Common Pleas, one of his servants was robbed at Gads Hill, within the Hundred of Gravesend in Kent, and he sued the men of the Hundred upon this statute,1 and it seemed hard to the inhabitants there that they should answer for the robberies done at Gads Hill, because robberies are there so frequent that if they should answer for all of them, that they should be utterly undone. And Harris, Sergeant, was of counsel with the inhabitants of Gravesend, and pleaded for them, that time out of mind, etc., felons had used to rob at Gads Hill, and so prescribed, and afterwards by award they were charged.

THE indictment stated that the defendants did unlawfully and indecently expose their bodies and persons naked and uncovered in presence of divers of her Majesty's subjects, to their great scandal, and to the manifest corruption of their morals; and, second count, that the defendants on a certain public and common highway, in the parish of Appledown, unlawfully and indecently did expose their bodies and persons naked and uncovered in the presence of divers subjects then and there being, and within sight and view of divers others passing and repassing in the highway, to the common nuisance of the subjects of the Queen.

The defendants pleaded not guilty.

1 Statute of Winchester, 13 Edw. 1.

Hawkins, Q. C., and Grantham, for the prosecution.

Willoughby and A. L. Smith, for the defendants.

Hawkins, in opening the case, cited Rex v. Crowden, 2 Camp. N. P. C. 89, where a defendant was convicted of indecency in bathing at Brighton in view of houses recently erected. Although in the present case it was not alleged that the bathing was within view of the houses, it was urged that, as it was on a public pathway, it was the same case in point of principle.

It appeared that the bathing took place in the sea, at a spot about two miles from Chichester, and half a mile from the nearest dwellinghouse, at the mouth of the Levant, a stream flowing from Chichester, and where the water was deeper than elsewhere on that part of the coast. The bathing-place was on a public footway from Chichester, on a bank or sea-wall along the beach. The side of the bank next to the sea, as it was a sea-wall, was not accessible as a place for dressing and undressing, and so the bathers dressed and undressed on the land side of the path. Hence they passed naked to and from the sea across the path; and it was proved that as many as eighteen or twenty women passed along the footpath in the course of a day, and that sometimes they had to turn back in order to avoid the bathers. The bathing took place, not merely in the morning and evening, but in the afternoon, at the time women were walking along the path. Moreover, as the bank was five or six feet high, the bathers, when on the path, were seen at some distance.

It was proved that bathing went on at the time women were passing, and that sometimes they had to turn back. The pathway was, it was stated, one of the most pleasant walks round Chichester, and a good deal frequented by ladies, especially in that season of the year when bathing went on; and the prosecutor, Mr. Stanford, whose house was within half a mile of the bathing-place, stated that the bathers could be seen from some of the windows of his house and from his garden. But it did not appear that complaints had been made until the prosecutor purchased the house about two years ago, and it also appeared that there was another house nearer than his, and that the inhabitants did not complain, the nearest house being above a quarter of a mile from the bathing-place. Further, it appeared that for more than half a century bathing had taken place there without any complaint, and that there had not been on the part of any of the defendants any exposure beyond what was necessarily incident to bathing. Nevertheless, it appeared that the pathway from which the bathing took place was one of the most pleasant walks in the neighborhood of Chichester, and that it was practically closed to females during the bathing season, which was, of course, the finest portion of the year.

COCKBURN, C. J. If the place where the bathing went on was a place where persons could not bathe without indecent exposure, it was a place where bathing ought not to go on. Undoubtedly, if it was a place where people rarely passed, and where there was no necessity for

passing at all, it would be a material element in the case. But the mere fact that bathing could not go on in the place without exposure was not enough to excuse the exposure, and was rather a reason why the bathing ought not to go on. Upon these facts it was quite impossible that the defendants could resist a conviction upon this indictment. There was, it appeared, a public footway frequented in fine weather by the inhabitants of Chichester, and which must be taken to be an ancient and accustomed footway. It was impossible to set up a customary right to bathe close to the path in such a way as to violate public decency, and thus to be inconsistent with the use of the footway by any of the Queen's subjects, especially of the female sex. No one could suppose that respectable women could frequent the footpath where men were in the habit of bathing, and were constantly seen in a state of nudity. It was clear, therefore, that the usage so to bathe, however long it might have existed, could not be upheld, and that those persons who thus exposed themselves upon or near to a public footway were liable to be indicted for indecency. There must, if the prosecution was pressed, be a verdict of guilty upon this indictment, unless the facts as thus shown in evidence could be altered.

It was not suggested for the defence that the facts could be altered. Hawkins, for the prosecution, stated that it was not desired to press the prosecution, if protection for the future could be secured, and thereupon it was agreed between the parties that bathing henceforth should take place from a shed to be erected for the purpose, and on this condition the jury were discharged.1

BANKUS v. STATE.

SUPREME COURT OF INDIANA. 1853.

[Reported 4 Ind. 114.]

PERKINS, J. Indictment for a riot. Jury trial, conviction, motion for a new trial overruled, and judgment against the defendants. The bill of exceptions in the case states the substance of the evidence given as follows: "Jesse Bankus, Lewis Simpson, William Woods, and William McShirely, four of the defendants, were on trial, and three witnesses were examined on the part of the state (one of whom was engaged in the alleged riot with the defendants), whose testimony tended to prove that on a certain evening, within a year before the finding of said indictment, at the county of Henry, the above-named defendants were at a certain place in said county, called Chicago, (there being no evidence to prove that they had assembled at said place by previous concert or arrangement, for any purpose whatever, except the facts that they were all present without any known business, and

1 Acc. Com. v. Perry, 139 Mass. 198.