Punishment by cucking stool.

holden, it seems that in a plea, justifying the removal of the nuisance, a man need not shew that he did as little damage as might be. 1 Haw. c. 75. § 12.

But although he may remove the nuisance, yet he cannot remove the materials, or convert them to his own use. Dalt. c. 50. But so much of the thing only as causes the nuisance ought to be removed: As if a house be built too high, only so much of it as is too high should be pulled down. 9 Rep. 53. God. 221. 2 Str. 686.

And in the case of a glass-house, the judgment was to abate the nuisance; but not by pulling the house down, but only to prevent its being again used as such. Co. Ent. 92.

III. How punished.

It is said that a common scold is punishable (after conviction upon indictment) by being placed in a certain engine of correction called the trebucket or cucking stool. 1 Haw. c. 75. § 14.

Note, cuck or guck, in the Saxon tongue (according to Ld. Coke), signifieth to scold or brawl; taken from the bird cuckow or guckhaw; and ing in that language signifieth water; because a scolding woman was for her punishment soused in the water. 3 Inst. 219. The common people in the northern parts of England, amongst whom the greatest remains of the ancient Saxon are to be found, pronounce it ducking stool; which perhaps may have sprung from the Belgic or Teutonic ducken, to dive under water; from whence also probably we denominate our duck the water fowl: or rather, it is more agreeable to the analogy and progression of languages, to assert, that the substantive duck is the original, and the verb made from thence; as much as to say, that to duck is to do as that fowl does.

And she may be convicted, without setting forth the particulars in the indictment. 2 Haw. c. 25. § 59.

Nevertheless, the offence must be set forth with convenient certainty; and the indictment must conclude not only against the peace, but to the common nuisance of divers of his majesty's liege subjects. And in the case of Rex v. Margaret Cooper, 2 Str. 1246, the defendant was convicted on an indictment, for being a common and turbulent brawler, and sower of discord amongst her quiet and honest neighbours, so that she hath stirred, moved, and incited divers strifes, controversies, quarrels, and disputes amongst his majesty's liege people, against the peace, &c. It was moved in arrest of judgment that the charge was too general, and did not amount to being either a barrator or common scold, which are the only instances in which a general charge will be sufficient. It was likewise objected that if the words did amount to a description of a scold, yet it should be laid to be to the common nuisance of her neighbours; for every degree of scolding is not indictable. And the Court was of opinion, that the judgment ought to be arrested on both exceptions; for none of the words here used are the technical words; and it must be laid to be to the common nuisance. (a)

(a) It seemeth to savour not much of gallantry, that our ancestors supposed none but women could be guilty of this offence: for the technical words denoting

There is no doubt but that whoever is convicted of nuisance Punishment by may be fined and imprisoned; and it is said that one convicted of fine and impria nuisance done to the king's highway may be commanded by sonment, and to the judgment to remove the nuisance at his own costs; and it remove the nuiseems to be reasonable that those who are convicted of any other common nuisance should also have the like judgment. 1 Haw. c. 75. § 14. 2 Str. 686.

sance if it be continuing.

But unless the nuisance be stated to be continuing, there need R. v. Stead, not be judgment to abate it; for every judgment should be 8 T.R. 142. adapted to the nature of the case; so that where the nuisance vide per Lawexists at the time of the judgment, there ought to be a demolition;

but not otherwise.

rence J.

If the party who has been indicted for a nuisance continue the s. c. same, he may be again indicted for such continuance of the nui- 1 Ld. Raym. sance. So, though for a private nuisance two actions for the 370. erection cannot be had, yet a second action for the continuance thereof may be sustained.

The defendant shall not be allowed to make any objections against the indictment, until he hath pleaded to it. Dalt. c. 66.

And the Court never admits a person convicted of a nuisance to a small fine, until proof is made of the nuisance being removed. Dalt. c. 66.

All common nuisances are indictable not only at the sessions, but also in the torn and leet. 2 Haw. c. 10. § 59.

An act of general pardon only discharges the fine, but not the abatement of the nuisance. 2 Salk. 458.

There are many offences by particular statutes declared to be common nuisances, which are treated of under their respective titles.

General Indictment for a Nuisance.

Westmorland. THE jurors for our lord the king upon their oath present, that A. O. late of

the county of

in the

yeoman, on the year of the reign of

day of

in

and on divers other

days and times, as well before as afterwards, with force and arms at in the said county, [here set forth the nuisance]; and the same (a) (nuisance) so as aforesaid done doth yet continue and suffer to remain, to the common nuisance of all the lieges and subjects of our said lord the king, to the evil example of all others in the like case offending, and against the peace of our said lord the king, his crown and dignity.

the same, whilst the proceedings were in Latin, were all of the feminine gender: as rixatrix, calumniatrix, communis pugnatrix, communis pacis perturbatrix, and the like.

(a) If the nuisance do not continue, this paragraph must be omitted.

Oath.

Corporal oath.

Oath taken on the common prayer-book.

So help me
God.

Daths.

$ I. Of Oaths in general.

[15 G. 3. c. 39.49 G. 3. c. 65.]

II. Of the Oath of Allegiance.

[1 G. 1. st. 2. c. 13.]

III. The Oath of Supremacy.
[1 G. 1. st. 2. c. 13.]

IV. The Oath of Abjuration.

[6 G. 3. c. 53.]

V. Declaration against Transubstantiation.
[25 C. 2. c. 2.]

VI. Declaration against Popery.

[30 C. 2. st. 2. c. 1.]

VII. Quakers' Affirmations.

[1 W. & M. sess. 1. c. 18.- 7 & 8 W. 3. c. 34. —- 8 G. 1. c. 6. - 22 G, 2. c. 46.]

AN oath is a solemn asseveration made as strong and binding as possible, in order to beget faith and confidence in others, as to the certainty of what is affirmed. When men swear, nothing can make their asseveration so strong and binding, as the invocation of God to be their witness or avenger. See D'Oyley and Mant's Bible, Deut. c. 1. v. 34. (n).

Oath is a corruption of the Saxon word eoth. 3 Inst. 165. It is called a corporal oath, because the person lays his hand upon some part of the scriptures when he takes it. 3 Inst. 165. If the oath be taken on the common prayer-book, which hath the epistles and gospels, it is good enough, and perjury upon the statute may be assigned upon his oath. 2 Keb. 314.

The words, So help me God, in the common form of an oath, perhaps may have been first used in the very ancient manner of trial by battel in this kingdom, or at least are delivered with a peculiar emphasis in that solemnity; wherein the appellee lays his right hand on the book, and with his left hand takes the appellant by the right, and swears to this effect: Hear this, thou who callest thyself John by the name of baptism, whom I hold by the hand, that falsely upon me thou hast lied; and for this thou liest, that I who call myself Thomas by the name of baptism did not feloniously murder thy father W. by name. So help me

God; (and then he kisses the book, and says) and this I will defend against thee by my body, as this Court shall award. And so the appellant is sworn in like manner.

There hath been much doubt, how far justices of the peace Power of admi. have power to administer an oath. The statute of the 15 G. 3. nistering an c. 39. hath in one instance ascertained and declared their power; oath.

by which it is enacted as follows: "Whereas it is frequently neces- 15 G. 3. c.39. sary for justices of the peace to administer oaths or affirmations, where penalties are to be levied, or distresses to be made, in pursuance of acts of parliament, which they have no power to administer, unless authorised so to do by such acts respectively," it is therefore enacted, "that in all cases where any penalty is directed to be levied, or distress to be made, by any act of parliament now in force, or hereafter to be made, it shall and may be lawful for any justice or justices, acting under the authority of such acts respectively, and he and they is and are hereby authorised and empowered to administer an oath or oaths, affirmation or affirmations, to any person or persons, for the purpose of levying such penalties or making such distresses respectively."

But, except in the particular instances here specified, the matter remains as doubtful as it was before, or perhaps more doubtful, as it may induce an inquiry into other branches of the office of a justice of the peace, which possibly may be liable to the same objection..

And there seems to be some ambiguity upon the face of the act itself. For there are three different forms of expression in acts of parliament giving power to justices to levy penalties and make distresses; one is, where an act says generally, that such an offence shall be heard and determined by one or more justices, without expressing the particular mode of conviction. The second is, where an act says, that the conviction shall be upon the oath of one or more witness or witnesses. And the third is, where the act goes further and says. which oath such justice is hereby empowered to administer.

If it be the last of these only that the acts refers to, it is certain there are numberless instances where convictions are required by acts of parliament to be made on the oaths of witnesses, which acts give no express power to the justices to administer such oaths; and if upon the said acts no oath, before this remedial act, could be administered, they must necessarily be understood as having been hitherto nugatory, and the convictions thereupon merely void. The famous game act of the 5 Ann. c. 14. and many other game acts consequent thereupon, require the conviction to be upon qath, but do not expressly authorise the justices to administer the said oath. So also many penalties relating to the poor; to the woollen, linen, fustian, cotton, leather, iron and other manufactures: to the wages of servants, labourers and artificers; and even in the late dog act, where the penalties are very large and on a yet later act, 13 G. 3. c. 63. relating to the silk manufacture, where some of the penalties are not less than 501. are directed to be recovered by the oaths of witnesses, and yet the justices are not empowered by any of the acts respectively to administer the said oaths.

But be this as it may, it is evident that this remedial act doth not extend to any case where an oath is not mentioned in the act,

but where only a general power is given to the justices to take cognisance; and it may be argued, that, if where an oath is necessary, yet the justices cannot proceed unless authorised by the several acts respectively to administer such oath, it follows à fortiori, that where no oath is mentioned, there no oath can be by them administered. And this is the case of all the ancient statutes, so far down as the latter end of the reign of queen Elizabeth. For they only express in general, that the justices shall have power to hear and determine · shall inquire of such and such offences shall inquire, hear and determine by their discretions shall convict offenders by witness, confession or otherwise. The statute of the 43 El. c. 7. against hedge-breaking and robbing of orchards is the first statute that specially requires the conviction to be upon oath; and in many subsequent statutes, it is only expressed that the conviction shall be before the justices without any mention of an oath at all.

Besides, there are many other acts to be done by justices of the peace, which have no relation to the levying of penalties or making distresses: and it may be argued from analogy, that if they have not power to administer an oath in one case, they have not power to administer it in another under the like circumstances. As for instance: sometimes the penalty, after conviction, is not pecuniary, to be levied by distress; but corporal, by commitment to the house of correction, or otherwise; and yet the acts authorising and directing the proceedings run in the very same style and form of words, only this act of the 15 G. 3. c. 39. heals the defect in one case, but leaves the matter open as to the rest, and unless the circumstances can be distinguished, may affect the office of a justice of the peace in a most essential and vital part: for, to convict, and in consequence thereof to imprison an offender without oath, or (which is the same thing) by virtue of an oath which the justice hath no power to administer, argues a very feeble and imperfect jurisdiction, and such as no one, without being well advised, would readily choose to exercise.

Indeed, very few of the oaths administered by justices of the peace have the aforesaid sanction of a special authority given by the several acts to support them. No act of parliament gives a special power to administer the oath of office to a gauger in the excise, a commissioner of sewers, or a sheriff's bailiff; to a soldier enlisted in his majesty's forces; to an out-pensioner of Chelsea Hospital, in order to receive his pension; to a pauper wanting relief; to a person apprehended as a rogue and vagabond; to a landlord on the tenant's conveying away his goods clandestinely; to a person robbed, in order to bring his action against the hundred: All these, and many other such like, are directed to be administered by the respective acts of parliament, which acts nevertheless have no clause authorising the justices to administer the said oaths. Nay, further than this, in matters of daily practice, so far from an additional clause authorising the administering of an oath, there is no act of parliament now existing that requires the justices to take any examination upon oath either on the removal of a pauper to his settlement, or the filiation of a bastard child before the two next justices. So that the oaths which upon those occasions are administered are only of congruity,