wife fhall be continually beyond the feas, by the space of feven years together, or whofe hufband or wife fhall abfent him, or her felf, the one from the other, for that time, the one of them not knowing the other to be living within that time. Nor fhall it ex. tend to perfons whofe hufband or wife have gone to fea in any fhip or veffel, bound from one port to another, where the puflage is ufual'y made in three months time, and fuch fhip or veffel shall not be heard of in three years, or be heard of under fuch circumstances, as may rather confirm the opinion, that the whole company are lost. In fuch cafes the matter being laid before the fuperior court, the parties may be efteemed and declared fingle and unmarried, and upon fuch declaration thereof, and liberty obtained from the fuperi or court, fuch parties may marry again. This ftatute does not extend to perfons legally divorced, or whofe first marriage was within the age of confent, which is fourteen for a man and twelve for a woman,

woman.

IV., Fornication is the carnal copulation of a man and fingle The punishment is a fine of thirty-three fhillings to the county treasury, or corporal punishment not exceeding ten ftripes, but corporal punishment is never inflicted.

V. Lafcivious carriage and behaviour is a crime of very uncertain defcription. The ftatute enacts, that for the preventing of lafcivious carriage and behaviour againft, and for the punishment of which, (in regard of the variety of the circumftances, particular and express laws cannot be easily made and fuited) the county courts fhall be impowered, and directed to proceed against and punish fuch perfons, as fhall be guilty of lafcivious carriage, and behaviour, either by imposing a fine on them, or by committing them to the house of correction, or by inflicting corporal punishment on them, according to the nature and aggravation of the offence, and the difcretion of the court that fuch feafonable and exemplary punishment may be inflicted upon offenders of that kind, that others may hear and fear.

The general terms, and the uncertain fignification of the words of this ftatute are fuch, that it is no wonder that judges and lawyers have always been puzzled about the meaning of it. Indeed no con

fiftent

- Statutes, 82.

Ibid. 124.

fiftent conftruction has ever been put upon it. Perfons have been punifhed as violators of this act, for paffing thro a town with their nudities expofed. This manifeftly was public indecency, an offence at common law. Perfons have been punished on this statute for attempting to commit rapes, and expofing their nudities. This was clearly a high-handed breach of the peace at common law. As the ftatute gives courts power to inflict very fevere punishments on this crime, it is neceffary to know the acts which come within the de. fcription of it. For the purpose of establishing a rational construc tion, we must confider the ftate of fociety, and manners, and the fentiments of the people at the time the law was past, the probable object they had in contemplation, the true import of the word lafcivious, and whether the legislature did not intend to punish a crime, not punishable by any laws then in being.

This act was paffed in the earliest period of the government. The first fettlers of this country, most unquestionably brought with them much of the spirit of puritanifin. The gloominess of their manner, was heightened by the fingular opinions they entertained respecting focial pleafure. They confidered the joys of love, to be in a great measure inconfiftent with the grace of God; they reprobated the carnal appetites of men, and many entertained the whimfical idea, that the husband fhould not indulge in the conjugal act in the arms of his wife, with any other view than that of procreation. The fingularity of thefe fentiments, were firft difplayed at New-Haven, in the punishment of young perfons of both fexes, for the crime of filthy dalliance in fome of their innocent frolics and and amusements, which gave birth to the fiction of the blue laws, respecting which, fo many laughable ftorics have been told, and which is unqueftionably the proto-type of the act refpecting lafcivious carriage and behaviour. When people entertained fuch whimsical ideas, refpecting the impurity of the fexual paffion, it is not ftrange that they should attempt to reftrain the intercourfe of the fexes, by fevere laws, and to establish the greatest purity of manners. They could not have it for their object to punish crimes already punishable by law. It was evident that the crimes of adultery and fornication did not comprehend every act in the intercourfe of the fexes, which was repugnant to virtue and innocence: that between these,

and

and that connexion of the sexes which is consistent with chastity, decency, and delicacy, there are many acts which are improper and vicious. It was pursuant to the fpirit of the times, to attempt to restrain them; but as they are so various that they could not be defcribed in detail, they were all comprehended under the defcription of lafcivious carriage and behaviour: and tho the legiflature intended to introduce an aufterity of manners and reserve, in focial intercourse, which would have thrown a gloom over life and excluded the most innocent amufements, yet by a liberal conftruction of their law, it may now be directed to restrain that licentious familiarity between the fexes, which is repugnant to decency and virtue. Lafcivious, has an appropriate meaning, and fignifies the exercife of luftful paffions, or unchafte and wanton defires, between the fexes; and when applied to carriage and behaviour, these words fignify the acts which evidence the exercise of thofe feelings.

Having premifed thefe general obfervations, I fhall hazard a definition of this crime, which I think is a fair, rational and confiftent construction of the ftatute. Lafcivious carriage and behaviour, may be defined to be those wanton acts between perfons of different fexes, which do not amount to carnal copulation, which are inconfiftent with that decent intercourfe of the fexes, that is warranted by virtue and innocence, and which are repugnant to the sentiments of delicacy and chastity. These acts are unaccompanied with force and violence; for if they are committed with force, they would be breaches of the peace, punifhable at common law. Lafcivious carriage cannot be the fame as public indecency, for that does not neceffarily import lafcivioufnefs, but may be committed without exciting lafcivious ideas, and is punishable as an offence at common law. It is a crime created by statute, is unknown to the common law, has relation only to the intercourfe of the fexes, and is intended to reftrain a wanton indulgence of the paffion of sex. It would be hardly confiftent with delicacy, to illuftrate these obfervations by detailing those actions, which come within the defcription of this crime. The imagination of every person will fuggest a thousand indecent familiarities, which are the objects of

this ftatute, which ought to be restrained, and deferve to be pun ished.

The court have a difcretionary power to punish by fine, committing to the houfe of correction, and whipping-This ftatute needs correction. It is improper and dangerous to give to courts fuch latitude of construction, with respect to the acts which are criminal, and then to veft them with fuch boundless difcretion in inflicting the punishment. It breaks that gradation of crimes, which ought to be regarded, and admits a difproportion of punishments, to crimes, which is incompatible with the principles of juftice. I have known a man on a profecution by virtue of this law, fined thirty pounds, for a connection with a woman, lefs criminal than fornication, who if he had committed fornication, and had been convicted, would not have been fined but thirty three fhillings.

VI. The offence of a man's being found in bed with another's wife, subjects them both to be whipped, not exceeding thirty ftripes; but if one party was surprised, and did not confent, that fhall excufe the punishment. It feems unneceffary to have pafled this law; for the proof of the fact, that a man was in bed with another's wife, must be fufficient to convict them of adultery, or it ought not to convict them of any crime.

VII. Public Indecency is a crime at common law ; as where fundry perfons from a balcony displayed their nudities, to a large concourfe of people: and where a man went through a town with his nudities expofed to view. So is any grofs lewdness, a crime at common law, as the keeping or frequenting a bawdyhoufe. They are punishable by fine and imprifonment.

Such are the laws which have been framed to preferve the ineftimable virtue of chastity; but fuch is the frong and perpetual temptation to the commiffion of crimes, againft chastity, and fo deep is the veil of fecrecy, which the modely of the most profligate, throws round these transactions, that it is impoffible to restrain them by the terror of penal laws. Purity of manners must depend upon principles inftilled into the minds of youth by education, and all parents are under the ftrongest obligations, to imprefs ou

Statutes, 137 Black. Com. 64,

the

the minds of their female children, thefe all-important truths; that chastity is the peculiar ornament of the fex, that innocence gives the brighteft luftre to their charms; that their connection with the other fex, ought to be marked with the utmost delicacy in their converfation, and decency in their deportment: and that they fhould forever be on their guard against that indecorous familiarity, which leads by flow but fure fteps, to irretrievable difgrace and ruin.

CHAPTER NINTH.

OF THEFT, RECEIVING STOLEN GOODS, AND THEFTВОГЕ.

I.

THEFT is the taking and carrying away the perfonal

goods of another, with an intent to steal.

I. * There must be a taking without the knowledge, and con fent of the owner. If there be an actual delivery of the goods, and the poffeffion is acquired lawfully, no fubfequent act can render it ftealing. y If a carrier fhould open a pack of goods, and take away part of it, or if he carry it to the place appointed, and then afterwards take it away, he is guilty of theft; but the mere not delivering, would only make him guilty of a breach of trust. If goods are delivered to a man to keep, and he run away with them, it is not theft; for the original poffeffion was lawful. z If a man depofit property in the hands of a pawn-broker, or entrust it with any other perfon, and then take it away with an intent to charge the bailee, with the value of it, it is theft.

2. There must be a carrying away. A bare removal of the goods is fufficient. a If a man be leading a horfe out of another's pafture, and be apprehended in the fact; if a gueft ftealing goods out of an iun, has removed them from his chamber down ftairs ; or if a thief intending to steal plate, take it out of a cheft and lay it on the floor, and is furprifed before he can go away with it, in thefe cafes it is theft.

The

w 4 Black. Com. 229. x 1 Hal. P. C. 504, y 3 Inft. 107. z Fußt, 123. a 3 luft. 108.