appears to have been discontinued in this country and in other parts of Europe when Christianity was fully established, as the destruction of the body by fire was considered, for reasons to which I need not refer here, to be opposed to Christian sentiment, but this change took place so long ago, and the substitution of burial for burning was so complete, that the burning of the dead has never been formally forbidden or even mentioned or referred to, so far as I know, in any part of our law. The subject of burial was formerly, and for many centuries exclusively a branch of the ecclesiastical or canon law. Amongst the English writers on this subject little is to be found relating to burial. The subject was much more elaborately and systematically studied in Roman Catholic countries than in England, because the law itself prevailed much more extensively. In the Jus Ecclesiasticum of Van Espen,1 there is an elaborate discourse, filling twenty-two folio pages in double columns, on the subject of burial, in which every branch of the subject is systematically arranged and discussed, with references to numerous authorities. The importance of it is that it shows the view taken by the canonists, and this view had great influence on our ecclesiastical lawyers, though only a small part of the canon law itself was ever introduced into this country. "Van Espen throughout regards the participation in funeral rites as a privilege to which, subject to certain conditions, all the members of the church were entitled, and the deprivation of which was a kind of posthumous punishment analogous to the excommunication of the living. The great question with which he occupies himself is, in what cases ought burial to be denied? The general principle is, that those who are not worthy of church privileges in life are also to be excluded from them after death. 'Sicuti enim nonnllos vivos a sua communione, præsertim in sacris, jam pridem excludendos censuit, ita quoque eosdem sua communione post mortem indignos credidit.' As for the manner in which the dead bodies of persons deprived of Christian burial were to be disposed of, Van Espen says only that though in some instances the civil power may have entirely forbidden burial, whereby bodies may remain unburied and exposed to the sight of all, to be devoured by beasts or destroyed by the weather (he considers the dissection of criminals as a case of this sort), the church has never made such a provision, and has never prohibited the covering of such corpses with the earth. "This way of looking at the subject seems to explain how the law came to be silent on exceptional ways of disposing of dead bodies. The question was, In what cases burial must be refused? As for the way of disposing of bodies to which it was refused, the matter escaped attention, being probably regarded as a matter which interested those only who were so unfortunate as to have charge of such bodies. "The famous judgment of Lord Stowell, in the case of iron coffins which constitutes an elaborate treatise on burial, proceeds upon the same principles. The law presumes that every one will wish that the bodies of those in whom he was interested in their lifetime should have Christian burial. The possibility of a man's entertaining and acting upon a different view is not considered. "These considerations explain the reason why the law is silent as to the practice of burning the dead. Before I come to consider its legality directly, it will be well to notice some analogous topics which throw light upon it. There is one practice which has an analogy to funeral burning, inasmuch as it consti 1 II. 142-168, pt. II., seo. 4, tit. vii. 2 Gilbert v. Buzzard, 2 Hagg. Consist. 333. The shot discharged at random strikes its object by chance, that which is turned aside from its well directed aim by some unforeseen circumstances misses it mark by its accident. In this case, therefore, we reasonably feel disappointed but not in the other, for blind uncertainty is the chief element of chance. In fact, pure chance consists in the entire absence of all the means of calculating results, accident in the unusual prevention of an effect naturally resulting from the means employed That the fleetest horse sometimes stumbles in the race course, and leaves the victory to its more fortunate antagonist is the result of accident, but the gambler whose success depends upon the turn of the cards, or the throwing of the dice, trusts his fortune to chance. It is said that there are strictly few or no games of chance, but that skill enters as a very material element in most or all of them. This, however, does not prevent them from being games of chance within the meaning of the law. There are many games the result of which depends entirely upon skill. Chance is in nowise resorted to therein, Such games are not prohibited by the statute. But there are other games, which although they call for the exercise of much skill, still there is an intermingling of chance. The result depends, in a very considerable degree upon sheer hazard. These are the games against which the statute is directed, and horse racing is not included in that class. We think, therefore, the indictment in this case charged no indictable offense against the defendants below, and that the judgment below should therefore be reversed, which is accordingly done." Shuffle board is not a game of chance, nor is the a game of ten pins. In State v. Gupton,2 it was said: "The phrase game of chance is not one long known to the law, having therein a settled signification, but was introduced into our statute book by the act of 1835. As it had no technical meaning as a legal expression it must have been used by the Legislature in the sense in which persons conversant in games, or the world at large, give to it in classing the different kinds of games. Therefore, it is apparent, that those games are specified in contra-distinction to other games, which are not games of chance. In other words, those terms must be understood in their plain, popular sense as descriptive of a certain kind of games of chance in contra-distinction to a certain other kind, commonly known as games of skill. Though our knowledge on such subjects is very limited, yet, we believe that in the popular mind, the universal acceptation of a game of chance' is such a game as is determined entirely or in part by lot or mere luck, and in which judgment, practice, skill or adroitness have honestly no office at all, or are thwarted by chance. As intelligible examples, the games with dice which are determined by throwing only, and those in which the throw of the dice regulates the play, or the hand at cards depends upon the dealing with the face down, exhibit the two classes of games of chance. A game of skill, on the other hand, is one in which nothing is left to chance; but superior knowledge and attention, or superior strength, agility and practice gain the victory. Of this kind of gaming chess, draughts or chequers, billiards, pins, bowls and quoits may be cited as examples. It is true that in these latter instances superiority of skill is not always successful - the race is not necessarily to the swift. Sometimes an oversight, to which the most skillful is subject, gives an adversary the advantage; or an unexpected puff of wind, or an unseen gravel in the way, may turn aside a quoit or a ball and make it 1 State v. Bishop, 8 Ired. 266 (1848). 28 Ired. 272 (1848). come short of the aim. But if those incidents were sufficient to make the games in which they may occur, games of chance, there would be none other but games of that character. But that is not the meaning of the statute; for, as before remarked, by the very use of those terms, the existence of other kinds of games, not of chance, is recognized. The incidents mentioned, whereby the more skillful may yet be the loser, are not inherent in the nature of the games. Inattention is the party's fault, and not his luck; and the other obstacles, though not perceived nor anticipated, are occurrences in the course of nature and not chances. They are, indeed, sometimes innocently called so, as one hears 'chances of war' used to excuse losses by means not foreseen, but which might and, though out of the usual course of things, ought to have been foreseen and provided against. For the art of war is surely a science and the results of certain persons, movements, and combinations may be almost mathematically calculated. In the same manner, comparing small things with great, these are games of skill-purely such although the better player may, in particular instances, fail to win, from such causes as those mentioned, the want of attention or energy, and not the blindings of chance. In that sense, ten pins, as understood by us, from the description in the case, is not a game of chance, but of skill. Nothing is referred to chance; but, as in billiards, a just estimate of distances and angles, steadiness of hand, and a due application of strength constitute, under ordinary circumstances, the judicious and successful player. We take the game to be one species of the game known in England, and spoken of in her statutes, under the general term of bowls; and if it be, there is legal authority for holding it not to be a game of chance. The phrase is found in a statute of 5 George IV., which enacts, that every person playing or betting, in any or public place, at or with any table or instrument of gaming, 'at any game or pretended game of chance,' may be punished as a vagrant. Mr. Chitty states that playing at bowls is not within the act. So in Siegel v. Jobb,2 Chief Justice Abbott held that all games for money, 'whether of skill or of chance,' were unlawful within the meaning of statute 9 Anne, and remarked particularly, that playing at bowls had been held to be within that statute, and yet that was not a game of chance.' In like manner, bowls and ten pins are certainly within our act avoiding gaming contracts. But for the reasons assigned, we do not think that those, and other games of the like kind, are games of chance, within the other act of 1835, so as to render the players indictable. "PER CURIAM. Judgment reversed, and venire de novo." § 236. Game Played with Dice. In Wetmore v. State, it was held that backgammon was not within this phrase. "The place," said the court, "being public, the question arises, was this a playing at a game with dice within the meaning of the statute? Is backgammon one of the games prohibited? In the American cyclopedia, it is said, this game is 'played with dice and thirty pieces called men, upon a board or table peculiarly marked.' The derivation of the name is not satisfactorily settled. Three agencies are employed in the game: the table, the men, and the dice, or some other instrumentality to determine the chances. It is a game not much dependent on chance, but depends largely on the skill of the player. The dice are employed as a convenient mode of determining who shall first move, and afterwards, of designing the number of "There is only one other case to be mentioned. It is the case of Williams v. Williams, which was decided just two years ago by Kay, J., in the Chancery Division of the High Court, and is reported in the Law Reports. In this case, one H. Crookenden directed his friend, Eliza Williams to burn his body, and directed his executors to pay her expenses. The executors buried the body. Miss Williams got leave from the Secretary of State to disinter it in order, as she said, to be buried elsewhere. Having obtained possession of it by this misrepresentation, she burnt it and sued the executors for her expenses. The case leaves the question now before me undecided. The purpose,' says Kay, J., 'confessedly was to have the body burnt, and thereupon arises a very considerable question whether that is or is not a lawful purpose according to the law of this country. That is a question I am not going to decide.' He held that in that particular case the removal of the body and its burning were both illegal according to the decision of Regina v. Sharpe,2 already referred to. "Giving the lady credit,' he said, "for the best of motives, there can be no kind of doubt that the act of removing the body by that license and then burning it, was as distinct a fraud on that license as anything could possibly be.' This was enough for the purposes of the particular case, and the learned judge accordingly expressed no opinion on the question on which it now becomes my duty to direct you. "The question arises in the present case in a perfectly clear and simple form, unembarrassed by any such consideration as applied to the other cases to which I have referred. There is no question here of the illegality and dishonesty which marked the conduct of those who were described as resurrection men, nor of the artifices, not indeed criminal, but certainly disingenuous, by which possession of the body was obtained in the cases of Regina v. Sharpe,3 and Williams v. Williams. Price had lawful possession of the child's body, and it was not only his right but his duty to dispose of it by burying, or in any other manner not in itself illegal. Hence, I must consider the question whether to burn a dead body instead of burying it is in itself an illegal act. "After full consideration, I am of opinion that a person who burns instead of burying a dead body does not commit a criminal act, unless he does it in such a manner as to amount to a public nuisance at common law. My reason for this opinion is that upon the fullest examination of the authorities, I have, as the preceding review of them shows, been unable to discover any authority for the proposition that it is a misdemeanor to burn a dead body, and in the absence of such authority I feel that I have no right to declare it to be one. "There are some instances, no doubt, in which courts of justice have declared acts to be misdemeanors which had never previously been decided to be so, but I think it will be found that in every such case the act involved great public mischief or moral scandal. It is not my place to offer any opinion on the comparative merits of burning and burying corpses, but before I could hold that it must be a misdemeanor to burn a dead body, I must be satisfied not only that some people, or even that many people, object to the practice, but that it is, on plain, undeniable grounds, highly mischievous or grossly scandalous. Even then I should pause long before I held it to be a misdemeanor, for many acts involving the grossest indecency and grave public mischief - incest, for instance, and where there is no conspiracy, seduction or adultery - are not mis 1 20 Ch. D. 659. 3 1 D. & B. 160. 21 D. & B. 160. 4 20 Ch. D. 659. demeanors, but I can not take even the first step. Sir Thomas Browne finishes his famous essay on Urn Burial with a quotation from Lucan, which in eight words seems to sum up the matter: Tabesne adavera solvat an rogus, haud refert.' Whether decay or fire consumes corpses matters not. The difference between the two processes is only that one is quick, the other slow. Each is so horrible that every healthy imagination would turn way from its details; but one or the other is inevitable, and each may be concealed from observation by proper precautions. There are, no doubt, religious convictions and feelings connected with the subject which every one would wish to treat with respect and tenderness, and I suppose there is no doubt that as a matter of historical fact the disuse of burning bodies was due to the force of those sentiments. I do not think, however, that it can be said that every practice which startles and jars upon the religious sentiments of the majority of the population is for that reason a misdemeanor at common law. The statement of such a proposition, in plain words, is a sufficient refutation of it, but nothing short of this will support the conclusion that to burn a dead body must be a misdemeanor. As for the public interest in the matter, burning, on the one hand, effectually prevents the bodies of the dead from poisoning the living On the other hand, it might, no doubt, destroy the evidence of crime. These, however, are matters for the Legislature, and not for me. It may be that it would be well for Parliament to regulate or to forbid the burning of bodies, but the great leading rule of crim. inal law is that nothing is a crime unless it is plainly forbidden by law. This rule is, no doubt, subject to exceptions, but they are rare, narrow, and to be admitted with the greatest reluctance, and only upon the strongest reasons. "This brings me to the last observation I have to make. Though I think that to burn a dead body decently and inoffensively is not criminal, it is obvious that if it is done in such a manner as to be offensive to others it is a nuisance of an aggravated kind. A common nuisance is an act which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all her majesty's subjects. To burn a dead body in such a place and such a manner as to annoy persons passing along public roads or other places where they have a right to go, is beyond all doubt a nuisance, as nothing more offensive, both to sight and to smell, can be imagined. The depositions in this case do not state very distinctly the nature and situation of the place where this act was done, but if you think upon inquiry that there is evidence of its having been done in such a situation and manner as to be offensive to any considerable number of persons, you should find a true bill." § 300. Disorderly House Elements of the Crime.-To constitute a disorderly house, it must be kept for the purpose of public prostitution or as a common resort for prostitutes and vagabonds. That this class frequently with other citizens resort there is not enough.1 - Keeping Bawdy House § 301. Entertaining Lewd People - Gist of Offense. A woman is not indictable for keeping a bawdy house, who is merely unchaste, lives by herself and habitually admits men to cohabit with her. "A bawdy house," it is said, "is defined to be a house of ill-fame, kept for the resort and convenience of lewd people of both sexes. The residence of an un 1 McElhaney v. State, 12 Tex. (App.) 231. 2 State v. Evans, 5 Ired. 603 (1845). |