public office and every person collecting such ools or utensils in order to export the same shall, on conviction at the assizes, forfeit such tools and also 2007. CHAPTER XIII. OF OFFENCES AGAINST THE PUBLIC HEALTH, AND THE PUBLIC POLICE OR ECONOMY. *THE fourth species of offences more especially affecting the common[*161 wealth are such as are against the public health of the nation; a concern of the highest importance, and for the preservation of which there are in many countries special magistrates or curators appointed. 1. The first of these offences is a felony, but, by the blessing of Providence, for more than a century past incapable of being committed in this nation: for, by statute 1 Jac. I. c. 31, it is enacted that, if any person infected with the plague, or dwelling in any infected house, be commanded by the mayor or constable, or other head officer, of his town or vill, to keep his house, and shall venture to disobey it, he may be enforced, by the watchmen appointed on such melancholy occasions, to obey such necessary command; and, if any hurt ensue by such enforcement, the watchmen are thereby indemnified. And further, if such person so commanded to confine himself goes abroad and converses in company, if he has no plague-sore upon him, he shall be punished as a vagabond by whipping, and be bound to his good behaviour; but, if he has any infectious sore upon him, uncured, he then shall be guilty of felony. By the statute 26 Geo. II. c. 26, (explained and amended by 29 Geo. II. c. 8,) the method of performing quarantine, or forty days' probation, by ships coming from infected countries, is put in a much more regular and effectual order than formerly, and masters of ships coming from infected places and disobeying the directions there given, or having the plague on board and concealing it, are guilty of felony without benefit of clergy. The same penalty also attends [*162 persons escaping from the lazarets, or places wherein quarantine is to be performed; and officers and watchmen neglecting their duty; and persons conveying goods or letters from ships performing quarantine.1 2. A second, but much inferior, species of offence against public health is the selling of unwholesome provisions. To prevent which, the statute 51 Hen. III "All the statutes prohibiting artificers from going abroad are repealed, by 5 Geo. IV. c. 97, so that artists may now settle in foreign parts without any restrictions or liabilities. -CHITTY. 1 Py the 6 Geo. IV. c. 78, all the prior statutes relative to the quarantine-laws are repealed, and other provisions are made, similar in their nature to the former. See the prior statutes and decisions thereon, Burn, J. 24th ed. tit. Plague. 2 Chitt. Crim. Law, 551, and 2 Chitt. Commercial Law, 62 to 87. It is a misdemeanour at common law to expose a person labouring under an infectious disorder, as the smallpox, in the streets or other public places. 4 M. & S. 73, 272. An Indictment lies for lodging poor persons in an unhealthy place. Cald. 432.—CHITTY. Now, by the 16 & 17 Vict. c. 100, s. 9, if the parent or person having care of a child shall not, after notice from the registrar of births, attend to have vaccination performed, such father, mother, or person shall forfeit a sum not exceeding 20s.STEWART. "It is a misdemeanour at common law to give any person injurious food to eat, whether the offender be excited by malice, or a desire of gain; nor is it necessary he should be a public contractor, or the injury done to the public service, to render him criminally liable. 2 East, P. C. 822. 6 East, 133 to 141. If a baker direct his servant to make bread containing a specific quantity of alum, which when mixed with the other ingredients is innoxious, but in the execution of these orders the agent mixes up the drug in so unskilful a way that the bread becomes unwholesome, the master will be 'iable to be indicted. 3 M. & 3. 10. 4 Camp. 10. But an indictment will not lie against st. 6, and the ordinance for bakers, c. 7, prohibit the sale of corrupted wine, contagious or unwholesome flesh, or flesh that is bought of a Jew, under pain of amercement for the first offence, pillory for the second, fine and imprisonment for the third, and abjuration of the town for the fourth. And, by the statute 12 Car. II. c. 25, § 11, any brewing or adulteration of wine is punished with the forfeiture of 1007. if done by the wholesale merchant, and 401. if done by the vintner or retail trader. These are all the offences which may properly be said to respect the public health. V. The last species of offences which especially affect the commonwealth are those against the public police or economy. By the public police and economy I mean the due regulation and domestic order of the kingdom, whereby the indi viduals of the state, like members of a well-governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations. This head of offences must therefore be very miscellaneous, as it comprises all such crimes as especially affect public society and are not comprehended under any of the four preceding species. These amount some of them to felony, and others to misdemeanours only. Among the former are, 1. The offence of clandestine marriages: for, by the statute 26 Geo. II. c. 33, 1. To solemnize marriage in any other place besides a church or public chapel wherein banns have been usually published, except by license from the arch*163] bishop of Canterbury; and, 2. To solemnize marriage in such church or chapel without due publication of banns, or license obtained from a proper authority, do both of them not only render the marriage void, but subject the person solemnizing it to felony, punished by transportation for fourteen years; as, by three former statutes, (a) he and his assistants were subject to a pecuniary forfeiture of 1001. 3. To make a false entry in a marriage-register; to alter it when made; to forge or counterfeit such entry, or a marriage-license; to cause, or procure, or act or assist in such forgery; to utter the same as true, knowing it to be counterfeit; or to destroy or procure the destruction of any register, in order to vacate any marriage or subject any person to the penalties of this act; all these offences, knowingly and wilfully committed, subject the party to the guilt of felony without benefit of clergy. 2. Another felonious offence with regard to this holy estate of matrimony is what some have corruptly called bigamy, which properly signifies being twice married, but is more justly denominated polygamy, or having a plurality of wives (a) 6 & 7 W. III. c. 6. 7 & 8 W. III. c. 35. 10 Anne, c. 19, e. 176. miller for receiving good barley to grind at his mill, and delivering a mixture of oats and barley which is musty and unwholesome. 4 M. & S. 214.—CHITTY. This statute is now repealed. 7 & 8 Vict. c. 24. STEWART. And, by the 1 W. and M. st. 1, c. 34, s. 20, any person selling wine corrupting or adul terating it, or selling it so adulterated, shall forfeit 3007., half to the king and half to the informer, and shall be imprisoned three months.-CHITTY. This act is now repealed, by the 4 Geo. IV. c. 76, and clergy is restored. By the 21st section of the 4 Geo. IV. c. 76, it is felony with transportation for life to solemnize matrimony in any other place than in a church or chapel wherein banns may be lawfully published, or at any other time than between eight and twelve in the morning, except by special license from the archbishop of Canterbury, or to solemnize it without due publication of banns unless by license, or to solemnize it according to the rites of the Church of England, falsely pretending to be in holy orders: but the prose cution must take place in three months. By the 28th section of the same act, it is felony, punishable with transportation for life, to insert in the registry-book any false entry of any thing relating to any marriage, or to make, alter, forge, or counterfeit any such entry, or to make, alter, forge, or counterfeit any license of marriage, or to utter or publish as true any such false, &c. register as aforesaid, or a copy thereof, or any such false, &c. license; or to destroy any such register-book of marriages, or any part thereof, with intent to avoid any marriage, or to Bubject any person to any of the penalties of that act. But this act does not extend to marriages of Quakers or Jews. Independently of this statute, these offences were punishable at common law, and ubjected the offender to severe imprisonmer and fine. 2 Sid. 71.—CHITTY. [*164 at once.(b) Such second marriage, living the former husband or wife, is simply void, and a mere nullity, by the ecclesiastical law of England; and yet the legis lature has thought it just to make it felony, by reason of its being so great a violation of the public economy and decency of a well-ordered state. For polygamy can never be endured under any rational civil establishment, whatever specious reasons may be urged for it by the eastern nations, the fallaciousness of which has been fully proved by many sensible writers: *but in northern countries the very nature of the climate seems to reclaim against it, it never having obtained in this part of the world, even from the time of our German ancestors, who, as Tacitus informs us,(c) "prope soli barbarorum singulis uxoribus contenti sunt." It is therefore punished by the laws both of antient and modern Sweden with death. (d) And with us in England it is enacted, by statute 1 Jac. I. c. 11, that if any person, being married, do afterwards marry again, the former husband or wife being alive, it is felony, but within the benefit of clergy. The first wife in this case shall not be admitted as a witness against her husband, because she is the true wife; but the second may, for she is indeed no wife at all; (e) and so vice versa of a second husband. This act makes an exception to five cases in which such second marriage, though in the three first it is void, is yet no felony.(f) 1. Where either party hath been continually abroad for seven years, whether the party in England hath notice of the other's being living or no. 2. Where either of the parties hath been absent from tho other seven years within this kingdom, and the remaining party hath had no knowledge of the other's being alive within that time. 3. Where there is a di vorce (or separation a mensa et thoro) by sentence in the ecclesiastical court 4. Where the first marriage is declared absolutely void by any such sentence, and the parties loosed a vinculo. Or, 5. Where either of the parties was under the age of consent at the time of the first marriage; for in such case the first marriage was voidable by the disagreement of either party, which the second marriage very clearly amounts to. But if at the age of consent the parties had agreed to the marriage, which completes the contract, and is, indeed, the real marriage, and afterwards one of them should marry again, I should apprehend that such second marriage would be within the reason and penalties of the act. (*) 3 Inst. 88. Bigamy, according to the canonists, consisted in marrying two virgins successively, one after the death of the other, or once inarrying a widow. Such were esteemed incapable of orders, &c., and, by a canon of the Council of Lyons, A.D. 1274, held under Pope Gregory X., were omni privilegio clericali nudati, et coercioni fori secularis addicti. 6 Decretal. 1, 12. This canon was adopted and explained in England, by statute 4 Edw. I. st. 3, c. 5, and bigamy thereupon became no uncommon counter-plea to the claim of the benefit of clergy. M. 40 Edw. III. 42. M. 11 Hen. IV. 11, 48. M. 13 Hen. IV. 6 Staundf. P. C. 134. The (d) Stiernhook, de jure Sueon. l. 3, c. 2. (3 Inst. 89. Kelw. 27. 1 Hal. P. C. 694. By 9 Geo. IV. c. 31, 22, it is enacted, "That if any person being married shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or elsewhere, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and, being convicted thereof, shall be liable to be transported beyond the seas for the term of seven years, or to be imprisoned, with or without hard labour, in the common gaol, or house of correction, for any term not exceeding two years; and any such offence may be dealt with, inquired of, tried, determined, and punished in the county where the offender shall be apprehended or be in custody, as if the offence had been actually committed in that county: provided always that nothing herein contained shall extend to any second marriage contracted out of England by any other than a subject of his majesty, or to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time, or shall extend to any person who at the time of such second marriage shall have been divorced from the bond of the first marriage, or to any person whose former marriage shall have been declared void by the sentence of any cour of competent jurisdiction." Three important improvements in the law relating to bigamy are introduced by this enactment. First, the offence is now punishable wherever committed: formerly it was not punishable at all if committed out of the jurisdiction of England. Secondly, the absence of one party for seven years abroad will not now excuse the second marriage, if such party be known by the other party to have been alive within that period: formerly 3. A third species of felony against the good order and "economy of *165] the kingdom is by idle soldiers and mariners wandering about the realm, or persons pretending so to be, and abusing the name of that honourable profession.(g) Such a one, not having a testimonial or pass from a justice of the peace limiting the time of his passage, or exceeding the time limited for fourteen days, unless he falls sick, or forging such testimonial, is, by statute 39 Eliz. c. 17, made guilty of felony without benefit of clergy. This sanguinary law, though in practice deservedly antiquated, still remains a disgrace to our statutebook, yet attended with this mitigation, that the offender may be delivered, if any honest freeholder or other person of substance will take him into his service, and he abides in the same for one year, unless licensed to depart by his employer, who in such case shall forfeit ten pounds." 4. Outlandish persons calling themselves Egyptians or gypsies are another object of the severity of some of our unrepealed statutes. These are a strange kind of commonwealth among themselves of wandering impostors and jugglers, who were first taken notice of in Germany about the beginning of the fifteenth century, and have since spread themselves all over Europe. Munster, (h) who is followed and relied upon by Spelman(i) and other writers, fixes the time of their first appearance to the year 1417, under passports, real or pretended, from the emperor Sigismund, king of Hungary. And pope Pius II. (who died A.D. 1464) mentions them in his history as thieves and vagabonds, then wandering with their families over Europe under the name of Zigari, and whom he sup poses to have migrated from the country of Zigi, which nearly answers to the modern Circassia. In the compass of a few years they gained such a number of idle proselytes (who imitated their language and complexion, and betook themselves to the same arts of chiromancy, begging, and pilfering) that they became troublesome, and even formidable, to most of the states of Europe. Hence they were expelled from France in the year 1560, and from Spain in 1591.(k) And the government in England took the alarm much earlier, for in 1530 they are described, by statute 22 Hen. VIII. c. 10, as "outlandish people, calling themselves *Egyptians, using no craft nor feat of merchandise, *166] who have come into this realm, and gone from shire to shire and place to place in great company, and used great, subtil, and crafty means to deceive the people, bearing them in hand that they by palmestry could tell men's and women's fortunes, and so many times, by craft and subtility, have deceived the people of their money, and also have committed many heinous felonies and robberies." Wherefore they are directed to avoid the realm, and not to return, 3 Inst. 85. () Gloss. 193. the mere absence was a protection, though the absent party was well known by the other to be living. Thirdly, a divorce a vinculo alone will now justify the second marriage: for merly a divorce a mensâ et thoro was held sufficient. 1 East, P. C. 466. In a prosecution for bigamy it has been said that a marriage in fact must be proved, (Morris vs. Miller, 4 Burr. 2059; but see Trueman's case, 1 East, P. C. 470;) but if proved by a person who was present it does not seem necessary to prove the registry or license, (Rex vs. Allison, R. & R. C. C. 109;) and it matters not that the first marriage is voidable by reason of affinity &c. 3 Inst. 88. Parties who are within age at the time of the first marriage, subse quently affirming the union by their consent, will be liable to be punished for bigamy if they break that contract and marry again. 1 East, P. C. 468. On an indictment for bigamy, where the first marriage is in England, it is not a valid defence to prove a divorce a vinculo out of England before the second marriage, founded on grounds on which a divorce a vinculo could not be obtained in England. Rex vs. Lolley, R. & R. C. C. 237, cited in Tovey vs. Lindsay, 1 Dow. 117. The burden of proving the first marriage to have been legal lies upon the prosecutor. Rex vs. James, R. & R. C. C. 17. Rex vs. Mcrton, id. 19. Rex vs. Butler, id. 61. The act extends to all dissenters except Jews and Quakers. Upon the subject of bigamy generally, see 1 Hawk. P. C. c. 32. Î East, P. C. c. 12. 1 Russell, c. 23. Butler's Co. Litt. 79, b. n. 1. 3 Stark. Ev. Polygamy.— CHITTY. But this act of Eliz. is now repealed by the 52 Geo. III. c. 31. By the 43 Geo. III. c. 61, soldiers, sailors, mariners, and the wives of soldiers mentioned therein, are relieved against the penalties of the vagrant acts. See also the 58 Geo. III. c. 92, and the annual mutiny act; and see the vagrant act, post, 169.-CHITTY. under pain of imprisonment, and forfeiture of their goods and chattels; and upon their trials for any felony which they may have committed, they shall not be entitled to a jury de medietate linguæ. And afterwards, it is enacted, by statute 1 & 2 P. and M. c. 4, and 5 Eliz. c. 20, that if any such persons shall be imported into this kingdom, the importer shall forfeit 401. And if the Egyptians themselves remain one month in this kingdom, or if any person, being fourteen years old, (whether natural-born subject or stranger,) which hath been seen or found in the fellowship of such Egyptians, or which hath disguised him or herself like them, shall remain in the same one month, at one or several times, it is felony without benefit of clergy: and Sir Matthew Hale informs us(1) that at one Suffolk assizes no less than thirteen gypsies were executed upon these statutes, a few years before the restoration. But, to the honour of our national humanity, there are no instances more modern than this of carrying these laws into practice Common 5. To descend next to offences whose punishment is short of death. nuisances are a species of offence against the public order and economical regimen of the state, being either the doing of a thing to the annoyance of all the king's subjects, or the neglecting to do a thing which the common good requires.(m) The nature of common nuisances and their distinction from private nuisances were explained in the *preceding volume,(n) when we con[*167 sidered more particularly the nature of the private sort as a civil injury to individuals. I shall here only remind the student that common nuisances are such inconvenient and troublesome offences as annoy the whole community in general, and not merely some particular person, and therefore are indictable only, and not actionable, as it would be unreasonable to multiply suits by giving every man a separate right of action for what damnifies him in common only with the rest of his fellow-subjects. Of this nature are, 1. Annoyances in highways, bridges, and public rivers, by rendering the same inconvenient or dangerous to pass, either positively, by actual obstructions, or negatively, by want of reparations. For both of these, the person so obstructing, or such individuals as are bound to repair and cleanse them, or (in default of these last) the parish at large, may be indicted, distrained to repair and mend them, and in some cases fined. And a presentment thereof by a judge of assize, &c., or a justice of the peace, shall be in all respects equivalent to an indictment.(0) Where there is a house erected or an enclosure made upon any part of the king's demesnes, or of a highway or common street, or public water, or such like public things, it is properly called a purpresture.(p) 2. All those kinds of nuisances (such as of (2) 1 Hal. P. C. 671. (m)1 Hawk. P. C. 197. () Stat. 7 Geo. III. c. 42. (P) Co. Litt. 277; from the French pourpris, an enclosure. This act of 5 Eliz. c. 20 is repealed by the 23 Geo. III. c. 51; and now, by the 1 Geo. IV. c. 116, so much of the 1 & 2 P. and M. c. 4 as inflicts capital punishment is repealed. Gypsies are now only punishable under the vagrant act. See post, 169.-CHITTY. Railways have, by stat. 3 & 4 Vict. c. 97, and 5 & 6 Vict. c. 55, been very properly placed under the control and regulation of the state: a penalty is incurred for opening a railway without notice to the board of trade, and for obstructing the government inspector.-STEWART. 10 The general highway act is now the 13 Geo. III. c. 78, which repeals the 7 Geo. III. c. 42. The 3 Geo. IV. c. 126 is the general turnpike act. With respect to nuisances in general to highways, &c. by actual obstruction, it is to be observed that every unauthorized obstruction of the highway, to the annoyance of the king's subjects, is an indictable offence. 3 Camp. 227. Thus, if a wagoner, carrying on a very extensive concern, constantly suffers wagons to remain on the side of the highway on which his premises are situate an unreasonable time, he is guilty of a nuisance. 6 East, 427. 2 Smith, 424. And if stage-coaches regularly stand in a public street in London, though for the purpose of accommodating passengers, so as to obstruct the regular track of carriages, the proprietor may be indicted. 3 Camp. 224. So a timber-merchant occasionally cutting logs of wood in the street, which he could not otherwise convey into his premises, will not be excused by the necessity which, in choosing the situation, he himself created. 3 Camp. 230. It is even said that "if coaches on the occasion of a rout wait an unreasonable length of time in a public street, and obstruct the transit of his majesty's subjects who wish to pass through it in carriages or on foot, the persons who |