The Clergyman's Hand-book of Law Part 11

CHAPTER x.x.xII. CRIMES

*396.* _Sins, Crimes, Discipline._-Crimes are offenses against the civil law. The fact that the church organization may try and punish a member for sinning, or acquit him, has nothing whatever to do with the administration of the criminal law of the State. Therefore, a member may be arrested and tried for any offense before or after the ecclesiastical tribunal has taken action in the matter. But there are certain crimes of a religious nature of which the civil law a.s.sumes jurisdiction and punishes, such as blasphemy,(698) disturbing religious meetings,(699) etc. Most of those laws are statutory and depend wholly upon the statute of the State where the crime is committed.

*397.* _Profane Language, Smoking, Disturbance._-Rude behavior or profane language if audible,(700) smoking in the church or during services,(701) cracking and eating nuts in church,(702) and fighting near the church so as to disturb the services, are violations of the law.(703) A father's taking his child out of the church with violence is a disturbance of the meeting.(704) The disturbance of any member of the congregation a.s.sembled for religious wors.h.i.+p is a violation of law.(705) A sentence of $100 fine or one year's imprisonment in the penitentiary, is not excessive or cruel or unusual punishment on conviction for disturbing a meeting.(706)

*398.* _Sunday-School, Church._-An ordinary Sunday-school where the Bible and religious precepts are taught, is a church within the law.(707)

*399.* _Private School._-A person may be punished under the statute for wilfully disturbing a private school kept in a district schoolhouse for instruction in the art of writing.(708)

*400.* _Disturbing a Religious Meeting._-Under a statute against disturbing a religious meeting, it has been held that it should define what disturbance is punishable.(709) Also, mere want of attention or observance of ceremonies, as standing or kneeling at times, is not a violation of the law.(710) Neither is singing out of time, unless done purposely,(711) nor performing a proper duty, such as objecting to a silenced clergyman's conducting the services.(712)

*401.* _Common Law, Offense, Statutory Law._-If there is no statutory provision, in those States where the common law prevailed before the admission of the State to the Union the offense is punishable under the common law.(713) And even in States where there is a statutory law on the subject, a person may be convicted at common law.(714)

*402.* _Services, Violation, Time._-The nature of the services and the discipline of the denomination may determine whether there is a violation of the law. Usually the disturbance may occur at any place the congregation is a.s.sembled, and at any time when any part of the congregation is a.s.sembled for religious services or business.(715)

*403.* _Force, Priest, Preserve Order._-A congregation may use sufficient force to remove a disturber.(716) A Catholic priest who is the conductor of religious services and master of ceremonies within his church has the right to preserve order and to remove by force, if necessary, any person who disturbs his services.(717)

*404.* _Interrupt, Liquors, Traffic._-There are statutes in most of the States making it a penal offense to interrupt or molest any a.s.sembly or meeting of the people for religious wors.h.i.+p, or to sell intoxicating liquors or other articles of traffic within a certain distance of any camp-meeting or other religious a.s.sembly, except at a place of business regularly established prior to such meeting or a.s.sembly and not with intent of evading the provisions of the law.(718)

*405.* _Theory, Blasphemy, Crime._-On the theory that the United States is a Christian nation, blasphemy is held to be a crime.(719) Infidels naturally claim that it interferes with their rights. However, there is no more interference with the private rights of the infidel than there is with the private right of the Mormon who is forbidden to violate the laws of the country by having a plurality of wives; and it has been held that any words importing imprecation for divine vengeance may const.i.tute profane cursing or blasphemy.(720)

*406.* _Religion, G.o.d, Ridicule, Virgin._-Words vilifying the Christian religion,(721) denying G.o.d or the final judgment,(722) and profane ridicule of the Holy Scriptures or of Christ,(723) are usually punishable.

Also, the use of vile words applied to the Virgin Mary is blasphemy.(724)

*407.* _Profanity, Proof, Excuse._-The profanity must be in the hearing of some person.(725) Every time a person profanely swears by taking the name of G.o.d in vain is a separate offense.(726) The prisoner's confession is sufficient proof; otherwise the prosecution must show that the offense was committed and some one heard the words.

Drunkenness is no excuse.(727) Punishment by fine or imprisonment is not in violation of the const.i.tution of the State or of the United States.(728)

*408.* _Sunday, Business, Fis.h.i.+ng._-The offenses against the Sunday law are so numerous that it would be almost impossible to review them within the limits of this work. Of course, the carrying on of a man's ordinary business is a violation of the Sabbath laws. But in some States selling cigars,(729) a butcher selling meat,(730) and even selling soda water,(731) and ice cream,(732) as well as fis.h.i.+ng, traveling, driving, using a slot machine,(733) and almost every other imaginable act excepting going to church, has at some time and in some State been declared a violation of the law, and a penalty imposed therefor.

In California,(734) Tennessee,(735) and Was.h.i.+ngton,(736) men may be shaved on Sunday. In some other States it has been held that running a barber shop on Sunday is a violation of the law.(737)

*409.* _Charity, Necessity, Benefit, Pleasure._-However, doing works of charity and works of necessity usually are exempt. What is a work of necessity is a question of law. Charity includes whatever proceeds from the sense of moral duty or a feeling of kindness and humanity, and is intended wholly for the purpose of the relief or comfort of another, and not for one's benefit or pleasure.(738)

*410.* _Contracts, Marriage, Notice._-The common law made no distinction between Sunday and any other day as to making contracts, but it prohibited holding court. In this country the statutory law invariably prohibits any but works of necessity or charity to be done on Sunday. But marriage settlements,(739) publication of statutory notices on Sunday,(740) and promises to marry, have been held legal.(741)

*411.* _Funeral, Physician, Subscriptions._-To attend a funeral, to employ an undertaker, or a physician, on Sunday, has been tested in the courts, and finally decided to be works of necessity or charity and not a violation of the Sunday law. Also, subscriptions made for church purposes and in works of charity on Sunday have been held legal and binding.(742)

*412.* _Jews, Seventh-Day Observers._-In several of the States it has been held that Jews and Seventh-Day observers of the Sabbath must obey the Sunday law.(743) However, in many States there is a statute expressly exempting people who keep the seventh day of the week; but still they sometimes have a provision, unless "he shall wilfully disturb thereby some other person or some religious a.s.sembly on said day."

*413.* _Societies, Secular Work._-Business meetings of benevolent and church societies for benevolent or church work may be held on Sunday. Even the const.i.tution of such societies may be amended on Sunday. However, secular work that does not come strictly under the functions of such societies would be unlawful.(744)

*414.* _Sunday, Begins, Ends._-Usually people believe they know what the word Sunday means, when it begins, and when it ends. Christianity usually recognizes the time from midnight to midnight as Sunday, and that is the usual time recognized by law.(745) But the solar day only,(746) or from midnight to sunset,(747) give us a variety which may not be complete.

Also, we have the further anomaly of a note made at 2 o'clock on Sat.u.r.day night, being held valid.(748)

*415.* _Religious Liberty, Law._-The const.i.tutional guarantee of religious liberty is not violated by enforcing the Sunday law.(749)

*416.* _Necessaries, Doctor._-As a parent or husband is obliged to furnish necessaries for his children and wife, when medical treatment becomes necessary, he is liable for manslaughter for failure to do his duty, even in case of religious disbelief in the efficacy of medicine. Courts are not inclined to make any distinction as to religious belief, and the prevailing rule in this country is that the parent is liable if he negligently allows his child to die when it might have been saved by the services of a doctor.(750)

*417.* _Christian Healer, Consent._-A Christian healer can not be held liable except under a State law. One who consents to treatment has no action for damages unless there is a failure to exercise the care and skill of a Christian Scientist. This rule might not apply to one incompetent to consent to a contract.(751)

*418.* _Politics._-A minister who had been expelled by his congregation for voting the Democratic ticket, had some of the members of the church arrested under the election laws for intimidating a voter. The court held that as he "suffered no pecuniary loss, personal injury, or physical restraint," no crime was committed.(752)

*419.* _Mail, Obscene Language._-Under the United States postal laws against sending "obscene, lewd or lascivious" books or papers through the mail, a person can not be convicted without proof that the matter is obscene, lewd, and lascivious, as the word "or" should be construed to mean "and." Also, the court held that a newspaper article on the doctrine of the Immaculate Conception written in coa.r.s.e and obscene language that offended the religious sentiments of the people, but had no tendency to induce s.e.xual immorality, did not render the newspaper unmailable nor the publisher guilty under the United States statutes. The court says: "Those parts of the article most relied upon to sustain the charge, though ostensibly a discussion of a religious subject, are couched in language not quite suitable for insertion in a judicial opinion, however well adjusted to such applause as might be expected from taste of a certain degree of degradation."(753)

*420.* _"__Fair,__"__ Chances, Gambling._-A church "fair" at which chances are sold, drawings had, or any game of chance permitted, is illegal and may be punished as gambling.(754)

CHAPTER x.x.xIII. CEMETERIES

*421.* _Statutes, Land._-There are sufficient statutory provisions on cemeteries to make a large book, and the frequent changes made in such laws render a full statement of the law impossible. The statutes against locating cemeteries near cities, dwellings, etc., should be carefully examined before buying land therefor.(755)

*422.* _United States, Jurisdiction._-The jurisdiction over the United States cemeteries is in the State where the cemeteries are located unless such jurisdiction has been ceded to the United States.(756)

*423.*. _Tombstones, Soldiers_.-The United States will erect tombstones at the graves of soldiers who served in the Civil War, in all cemeteries where their graves are unmarked. Wherever the United States has jurisdiction over cemeteries, it has made it a criminal offense punishable by fine or imprisonment to deface a tombstone.(757)

*424.* _Indigent Soldiers, Tombstones._-Most of the States have statutes providing for the burial of indigent soldiers and for putting tombstones at their graves. The attention of relatives of deceased soldiers should be called to it.

*425.* _State Authority._-The State Legislature has authority to control cemeteries or delegate that authority to some one else, and afterward to transfer it to a different person.(758)

*426.* _Maryland, Two Acres._-Although the declaration of rights of the State of Maryland restricted the sale of lands for a cemetery for a church to two acres, the Legislature has power to grant leave to a cemetery a.s.sociation to take t.i.tle to more land. And where the trustees bought twelve acres of land for a burial ground and a subsequent act of the Legislature authorized the enlargement of the cemetery not to exceed twenty-five acres, the t.i.tle to the excess of the valid purchase was ratified and the t.i.tle vested in the trustees.(759)

*427.* _Consent, Application._-Where a statute provides that no cemetery shall be laid out without first obtaining the consent of the munic.i.p.al authorities thereto, a written communication signed by the officers of an incorporated society is sufficient application; and a motion granting consent adopted by the city council is sufficient action on its part to comply with the statute.(760)

*428.* _Charter, Ground, Members._-An application for a charter to incorporate a cemetery need not specifically locate the ground.(761) The charter or the articles of incorporation, or by-laws made under them, generally determines who shall be members of the corporation. And where every owner of a lot signing the const.i.tution and by-laws becomes a member, the trustees can not vote on the unsold lots.(762)

*429.* _Police Power, Trespa.s.s, Burial._-Under our laws the State, by reason of its police power, has control over the cemeteries within it.

However, that power has generally been very favorably exercised. Laws both civil and criminal have been enacted to protect cemeteries from invasion and trespa.s.s and to protect tombstones from injury.(763) When authorized by the Legislature a city may make a by-law prohibiting burial within its limits, notwithstanding that the cemetery has been constantly used for over one hundred years.(764) Also, the city has authority to protect and regulate the use of a cemetery.(765)

*430.* _Dwelling, Limits._-Most of the States provide that no cemetery shall be laid out within a certain limit of a dwelling. But after the cemetery is established a man can not have it moved when he puts up a dwelling within the limits or where he consented to the cemetery at the time it was established.(766)

*431.* _Well, Pollution._-And where a man had built a dwelling near a cemetery, it was not good ground for him to prevent the enlargement of the cemetery by showing that it might destroy his well. The court questions whether there is any legal ground for complaint for the pollution of subterranean waters when caused by the proper use without negligence of the adjacent premises.(767) Additional lands may be obtained under the law of eminent domain by condemnation.(768)

*432.* _Exempt, Execution, Mortgage._-The statutes in most of the States exempt the tombstones and lots in a cemetery from sale on execution.(769) Also, a cemetery lot can not be sold under mortgage after bodies have been buried therein, as any one may be arrested for desecration of graves.(770)

*433.* _Public, Regulation._-The right to bury in a public cemetery is a privilege or license that is subject to munic.i.p.al regulation, and revocable whenever the public necessity requires it.(771)

*434.* _Nuisance, Public Health, Disease._-A cemetery is not a nuisance _per se_, but if it is proved that the burial of dead bodies in a certain cemetery does injure the public health and is a fruitful source of transmission of disease, the State may prohibit such burial at certain places within cities or adjacent to dwellings. But unless authorized by the Legislature a council has no right by ordinance to provide that no one shall be buried within half a mile of any habitation or public thoroughfare.(772) And where the Legislature authorized a city to remove the bodies interred and allow streets through the land, it had authority to do so.(773)

*435.* _Devise, Eas.e.m.e.nt, Rules._-The general rule of law is that a man can not devise away a cemetery lot in which members of his family are buried. He owns only a license or at the most an eas.e.m.e.nt which is subject to the rules of the cemetery a.s.sociation and the police power of the State. However, there are some exceptions.(774)

*436.* _Conditions._-A condition in a deed that the lot can not be sold, a.s.signed, or transferred without consent of the cemetery corporation, is as good and binding as in any other conveyance of real estate.(775)