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CHAPTER XIII.: OF OFFENCES AGAINST THE PUBLIC HEALTH, AND THE PUBLIC POLICE OR ECONOMY. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 [1753]

Edition used:

Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).

Part of: Commentaries on the Laws of England in Four Books, 2 vols.

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CHAPTER XIII.

OF OFFENCES AGAINST THE PUBLIC HEALTH, AND THE PUBLIC POLICE OR ECONOMY.

*[*161The fourth species of offences more especially affecting the commonwealth 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, *[*162or having the plague on board and concealing it, are guilty of felony without benefit of clergy. The same penalty also attends 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.2 To prevent which, the statute 51 Hen. III. 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.3 And, by the statute 12 Car. II. c. 25, § 11, any brewing or adulteration of wine is punished with the forfeiture of 100l. if done by the wholesale merchant, and 40l. if done by the vintner or retail trader.4 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 individuals 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 archbishop of **163]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 100l. 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.5

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 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 legislature 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: *[*164but 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 the 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 divorce (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.6

3. A third species of felony against the good order and **165]economy of 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 statute-book, 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.7

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 fitteenth 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 ad 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 supposes 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 **166]Egyptians, using no craft nor feat of merchandise, 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, 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 40l. 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(l) 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.8

5. To descend next to offences whose punishment is short of death. Common 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 *[*167preceding volume,(n) when we considered 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.9 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.(o) 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)10 2. All those kinds of nuisances (such as offensive trades and manufactures) which, when injurious to a private man, are actionable, are, when detrimental to the public, punishable by public prosecution, and subject to fine according to the quantity or the misdemeanour; and particularly the keeping of hogs in any city or market town is indictable as a public nuisance.(q)11 All disorderly inns or ale-houses, bawdy-houses, gaming-houses, stage-plays, unlicensed booths, and stages for rope-dancers, mountebanks, and the like, are public nuisances, and may, upon indictment, be suppressed and fined.(r)12 Inns in particular, being intended for the lodging and receipt of travellers, may be indicted, suppressed, and the *[*168inn-keepers fined, if they refuse to entertain a traveller without a very sufficient cause; for thus to frustrate the end of their institution is held to be disorderly behaviour.(s) Thus, too, the hospitable laws of Norway punish, in the severest degree, such inn-keepers as refuse to furnish accommodations at a just and reasonable price.(t) 4. By statute 10 & 11 W. III. c. 17, all lotteries are declared to be public nuisances, and all grants, patents, or licenses for the same to be contrary to law. But, as state lotteries have, for many years past, been found a ready mode for raising the supply, an act was made, 19 Geo. III. c. 21, to license and regulate the keepers of such lottery-offices.13 5. The making and selling of fire-works and squibs, or throwing them about in any street, is, on account of the danger that may ensue to any thatched or timber buildings, declared to be a common nuisance by statute 9 & 10 W. III. c. 7, and therefore is punishable by fine.14 And to this head we may refer (though not declared a common nuisance) the making, keeping, or carriage of too large a quantity of gunpowder at one time or in one place or vehicle, which is prohibited by statute 12 Geo. III. c. 61, under heavy penalties and forfeiture.15 6. Eaves-droppers, or such as listen under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance, and presentable at the court-leet,(u) or are indictable at the sessions, and punishable by fine and finding sureties for their good behaviour.(v) 7. Lastly, a common scold, communis rixatrix, (for our law-Latin confines it to the feminine gender,) is a public nuisance to her neighbourhood. For which offence she may be indicted,(w) and, if convicted, shall(x) be sentenced to be placed in a certain engine of correction called the trebucket, castigatory, or cucking-stool, which, in the Saxon language, is said to signify the scolding-stool, though now it is frequently corrupted into ducking-stool, because the residue of the judgment is, that, when she is so placed therein, she shall be plunged in the water for her punishment.(y)

6. **169]Idleness in any person whatsoever is also a high offence against the public economy. In China it is a maxim that if there be a man who does not work, or a woman that is idle, in the empire, somebody must suffer cold or hunger, the produce of the lands not being more than sufficient, with culture, to maintain the inhabitants; and, therefore, though the idle person may shift off the want from himself, yet it must in the end fall somewhere. The court also of Areopagus, at Athens, punished idleness, and exerted a right of examining every citizen in what manner he spent his time; the intention of which was,(z) that the Athenians, knowing they were to give an account of their occupations, should follow only such as were laudable, and that there might be no room left for such as lived by unlawful arts. The civil law expelled all sturdy vagrants from the city:(a) and, in our own law, all idle persons or vagabonds, whom our antient statutes describe to be “such as wake on the night and sleep on the day, and haunt customable taverns and ale-houses, and routs about, and no man wot from whence they came nor whither they go,” or such as are more particularly described by statute 17 Geo. II. c. 5, and divided into three classes,—idle and disorderly persons, rogues and vagabonds, and incorrigible rogues: all these are offenders against the good order and blemishes in the government of any kingdom. They are therefore all punished by the statute last mentioned; that is to say, idle and disorderly persons with one month’s imprisonment in the house of correction; rogues and vagabonds with whipping and imprisonment not exceeding six months; and incorrigible rogues with the like discipline and confinement not exceeding two years; the breach and escape from which confinement in one of an inferior class ranks him among incorrigible rogues, and in a rogue (before incorrigible) makes him a felon and liable to be transported for seven years. Persons harbouring vagrants are liable to a fine of forty shillings, and to pay all expenses brought upon the parish thereby; in the same **170]manner as, by our antient laws, whoever harboured any stranger for more than two nights was answerable to the public for any offence that such his inmate might commit.(b)16

7. Under the head of public economy may also be properly ranked all sumptuary laws against luxury, and extravagant expenses in dress, diet, and the like; concerning the general utility of which to a state, there is much controversy among the political writers. Baron Montesquieu lays it down(c) that luxury is necessary in monarchies, as in France; but ruinous to democracies, as in Holland. With regard therefore to England, whose government is compounded of both species, it may still be a dubious question how far private luxury is a public evil, and, as such, cognizable by public laws. And, indeed, our legislators have several times changed their sentiments as to this point; for formerly there **171]were a multitude of penal laws existing to restrain excess in apparel;(d) chiefly made in the reigns of Edward the Third, Edward the Fourth, and Henry the Eighth, against piked shoes, short doublets, and long coats; all of which were repealed by statute 1 Jac. I. c. 25. But as to excess of diet there still remains one antient statute unrepealed, 10 Edw. III. st. 3, which ordains that no man shall be served at dinner or supper with more than two courses, except upon some great holidays, there specified, in which he may be served with three.

8. Next to that of luxury naturally follows the offence of gaming, which is generally introduced to supply or retrieve the expenses occasioned by the former; it being a kind of tacit confession that the company engaged therein do, in general, exceed the bounds of their respective fortunes; and therefore they cast lots to determine upon whom the ruin shall at present fall, that the rest may be saved a little longer. But, taken in any light, it is an offence of the most alarming nature, tending by necessary consequence to promote public idleness, theft, and debauchery among those of a lower class; and among persons of a superior rank it hath frequently been attended with the sudden ruin and desolation of antient and opulent families, an abandoned prostitution of every principle of honour and virtue, and too often hath ended in self-murder.17 To restrain this pernicious vice among the inferior sort of people, the statute 33 Hen. VIII. c. 9 was made; which prohibits to all but gentlemen the games of tennis, tables, cards, dice, bowls, and other unlawful diversions there specified,(e) unless in the time of Christmas, under pecuniary pains and imprisonment. And the same law, and also the statute 33 Geo. II. c. 24, inflict pecuniary penalties, as well upon the master of any public house where servants are permitted to game, as upon the servants themselves who *[*172are found to be gaming there. But this is not the principal ground of modern complaint; it is the gaming in high life that demands the attention of the magistrate; a passion to which every valuable consideration is made a sacrifice, and which we seem to have inherited from our ancestors the antient Germans; whom Tacitus(f) describes to have been bewitched with a spirit of play to a most exorbitant degree. “They addict themselves,” says he, “to dice (which is wonderful) when sober, and as a serious employment, with such a mad desire of winning or losing, that when stripped of every thing else they will stake at last their liberty and their very selves. The loser goes into a voluntary slavery, and, though younger and stronger than his antagonist, suffers himself to be bound and sold. And this perseverance in so bad a cause they call the point of honour: ea est in re parva pervicacia, ipsi fidem vocant.” One would almost be tempted to think Tacitus was describing a modern Englishman. When men are thus intoxicated with so frantic a spirit, laws will be of little avail; because the same false sense of honour that prompts a man to sacrifice himself will deter him from appealing to the magistrate. Yet it is proper that laws should be, and be known publicly, that gentlemen may consider what penalties they wilfully incur, and what a confidence they repose in sharpers, who, if successful in play, are certain to be paid with honour, or, if unsuccessful, have it in their power to be still greater gainers by informing. For, by statute 16 Car. II. c. 7, if any person by playing or betting shall lose more than 100l. at one time, he shall not be compellable to pay the same; and the winner shall forfeit treble the value, one moiety to the king, the other to the informer. The statute 9 Anne, c. 14 enacts that all bonds and other securities given for money won at play, or money lent at the time to play withal, shall be utterly void; that all mortgages and encumbrances of lands made upon the same consideration shall be and enure to the use of the heir of the mortgagor; that if any person at any time or sitting loses 10l. at play, he may sue the winner, and recover it back by action of debt at law; and in case the loser does not, any other person may sue the winner for treble the sum so lost; and the plaintiff may by bill in equity examine the defendant himself upon oath; and that in any of these suits no privilege of parliament shall be allowed. The *[*173statute further enacts, that if any person by cheating at play shall win any money or valuable thing, or shall at any one time or sitting win more than 10l., he may be indicted thereupon, and shall forfeit five times the value to any person who will sue for it,18 and (in case of cheating) shall be deemed infamous, and suffer such corporal punishment as in case of wilful perjury. By several statutes of the reign of king George II.,(g) all private lotteries by tickets, cards, or dice (and particularly the games of faro, basset, ace of hearts, hazard, passage, rolly polly, and all other games with dice, except back-gammon) are prohibited, under a penalty of 200l. for him that shall erect such lotteries, and 50l. a time for the players Public lotteries, unless by authority of parliament, and all manner of ingenious devices, under the denomination of sales or otherwise, which in the end are equivalent to lotteries, were before prohibited by a great variety of statutes(h) under heavy pecuniary penalties. But particular descriptions will ever be lame and deficient, unless all games of mere chance are at once prohibited; the inventions of sharpers being swifter than the punishment of the law, which only hunts them from one device to another. The statute 13 Geo. II. c. 19, to prevent the multiplicity of horse-races, another fund of gaming, directs that no plates or matches under 50l. value shall be run, upon penalty of 200l. to be paid by the owner of each horse running, and 100l. by such as advertise the plate.19 By statute 18 Geo. II. c. 24, the statute 9 Anne is further enforced, and some deficiencies supplied; the forfeitures of that act may now be recovered in a court of equity; and, moreover, if any man be convicted upon information or indictment of winning or losing at play, or by betting at one time 10l. or 20l. within twenty-four hours, he shall be fined five times the sum for the benefit of the poor of the parish. Thus careful has the legislature been to prevent this destructive vice; which may show that our laws against gaming **174]are not so deficient, as ourselves and our magistrates in putting those laws in execution.

9. Lastly, there is another offence, constituted by a variety of acts of parliament, which are so numerous and so confused, and the crime itself of so questionable a nature, that I shall not detain the reader with many observations thereupon. And yet it is an offence which the sportsmen of England seem to think of the highest importance, and a matter, perhaps the only one, of general and national concern, associations having been formed all over the kingdom to prevent its destructive progress. I mean the offence of destroying such beasts and fowls as are ranked under the denomination of game; which, we may remember, was formerly observed(i) (upon the old principles of the forest law) to be a trespass and offence in all persons alike who have not authority from the crown to kill game, (which is royal property,) by the grant either of a free warren or at least a manor of their own. But the laws called the game laws have also inflicted additional punishments (chiefly pecuniary) on persons guilty of this general offence, unless they be people of such rank or fortune as is therein particularly specified. All persons, therefore, of what property or distinction soever, that kill game out of their own territories, or even upon their own estates, without the king’s license expressed by the grant of a franchise, are guilty of the first original offence of encroaching on the royal prerogative.20 And those indigent persons who do so without having such rank or fortune as is generally called a qualification are guilty not only of the original offence, but of the aggravations also created by the statutes for preserving the game; which aggravations are so severely punished, and those punishments so implacably inflicted, that the offence against the king is seldom thought of, provided the miserable delinquent can make his peace with the lord of the manor. The offence, thus aggravated, I have ranked under the present head, because the only rational footing upon which we can consider it as a crime is that in low and indigent persons it promotes idleness, and takes them away from their proper employments and callings, which is an offence against the public police and economy *[*175of the commonwealth.

The statutes for preserving the game are many and various, and not a little obscure and intricate, it being remarked(j) that in one statute only, 5 Anne, c. 14, there is false grammar in no fewer than six places, besides other mistakes; the occasion of which, or what denomination of persons were probably the penners of these statutes, I shall not at present inquire. It is, in general, sufficient to observe that the qualifications for killing game, as they are usually called, or more properly the exemptions from the penalties inflicted by the statute law, are, 1. The having a freehold estate of 100l. per annum,21 there being fifty times the property required to enable a man to kill a partridge as to vote for a knight of the shire: 2. A leasehold for ninety-nine years of 150l. per annum: 3. Being the son and heir apparent of an esquire (a very loose and vague description) or person of superior degree: 4. Being the owner or keeper of a forest, park, chase or warren. For unqualified persons transgressing these laws by killing game, keeping engines for that purpose, or even having game in their custody, or for persons (however qualified) that kill game or have it in possession at unseasonable times of the year or unseasonable hours of the day or night, on Sundays or on Christmas day, there are various penalties assigned, corporal and pecuniary, by different statutes;(k) on any of which, but only on one at a time, the justices may convict in a summary way, or (in most of them) prosecutions may be carried on at the assizes. And, lastly, by statute 28 Geo. II. c. 12, no person, however qualified to kill, may make merchandise of this valuable privilege by selling or exposing to sale any game, on pain of like forfeiture as if he had no qualification.22

[1 ] By 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.

[2 ] 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 liable to be indicted. 3 M. & S. 10. 4 Camp. 10. But an indictment will not lie against a 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.

[3 ] This statute is now repealed. 7 & 8 Vict. c. 24.—Stewart.

[4 ] And, by the 1 W. and M. st. 1, c. 34, s. 20, any person selling wine corrupting or adulterating it, or selling it so adulterated, shall forfeit 300l., half to the king and half to the informer, and shall be imprisoned three months.—Chitty.

[(a) ] 6 & 7 W. III. c. 6. 7 & 8 W. III. c. 35. 10 Anne, c. 19, e. 176.

[5 ] 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 prosecution 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 subject 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 subjected the offender to severe imprisonment and fine. 2 Sid. 71.—Chitty.

[(b) ] 3 Inst. 88. Bigamy, according to the canonists, consisted in marrying two virgins successively one after the death of the other, or once marrying a widow. Such were esteemed incapable of orders. &c., and by a canon of the Council of Lyons, ad 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 cognizance of the plea of bigamy was declared by statute 18 Edw. III. st. 3, c. 2, to belong to the court Christian, like that of bastardy. But, by stat. 1 Edw. VI. c. 12, s. 16, bigamy was declared to be no longer an impediment to the claim of clergy. See Dal. 21. Dyer, 201.

[(c) ]De Mor. Germ. 18.

[(d) ] Stiernhook. de jure Sueon. l. 3, c. 2.

[(e) ] 1 Hal. P. C. 693.

[(f) ] 3 Inst. 89. Kelw. 27. 1 Hal. P. C. 694.

[6 ] 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 court 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 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: formerly 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, subsequently 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. Morton, 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. 1 East, P. C. c. 12. 1 Russell, c. 23. Butler’s Co. Litt. 79, b. n. 1. 3 Stark. Ev. Polygamy.—Chitty.

[(g) ] 3 Inst. 85.

[7 ] 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.

[(h) ]Cosmog. l. 3.

[(i) ] Gloss. 193.

[(k) ] Dufresne. Gloss. i. 200.

[(l) ] 1 Hal. P. C. 671.

[8 ] 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.

[(m) ] 1 Hawk. P. C. 197.

[(n) ] Book iii. p. 216.

[9 ] 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.

[(o) ] Stat. 7 Geo. III. c. 42.

[(p) ] Co. Litt. 277; from the French pourpris, an enclosure.

[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 cause and permit such coaches so to wait are guilty of a nuisance.” 3 Camp. 226; and see 1 Russell, 463. Nor is it necessary, in order to fix the responsibility on the defendant, to show that he immediately obstructed the public way, or even intended to do so: it seems to be sufficient if the inconvenience result as an immediate consequence of any public exhibition or act; for the erection of a booth to display rope-dancing and other attractive spectacles, near a public street in London, which draws together a concourse of people, is a nuisance liable to be punished and abated. 1 Ventr. 169. 1 Mod. 76. 2 Keb. 846. Bac. Abr. Nuisance. And it may be collected that a mere transitory obstruction, which must necessarily occur, is excusable if all reasonable promptness be exerted. So that the erection of a scaffolding to repair a house, the unloading a cart or wagon, and the delivery of any large articles, as casks of liquor, if done with as little delay as possible, are lawful, though if an unreasonable time were employed in the operation they would become nuisances. 3 Camp. 231. No length of time will legalize the nuisance. 7 East. 199. 3 Camp. 227. 6 East, 195; sed vid. Peake C. N. P. 91. If the party who has been indicted for a nuisance continue the same, he is again indictable for such continuance. 8 T. R. 142. Independently of any legal proceedings, it appears that any person may lawfully abate a public nuisance, at least if it be placed in the middle of a highway and obstruct the passage of his majesty’s subjects, (Hawk. b. 1, c. 75, s. 12;) but though a party may remove the nuisance, yet he cannot remove the materials or convert them to his own use, (Dalt. c. 50;) and 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 Stra. 686.

With respect to nuisances to water-courses by actual obstruction, any diversion of a public river, whereby the current is weakened and rendered incapable of carrying vessels of the same burden as it could before, is a common nuisance. Hawk. b. 1, c. 75, s. 11. But if a ship or other vessel sink by accident in a river, although it obstruct the navigation, if the owner removes it in a reasonable time, it is not indictable as a nuisance. 2 Esp. 675. No length of time will legalize the nuisance, (6 East, 195, supra;) and even the rightful existence of a weir of brushwood will not authorize the building one of stone in its room. 7 East, 199.

With respect to the punishment for nuisances to highways, &c., the offenders may be fined and imprisoned. Hawk. b. 1, c. 75, s. 14. But no confinement or corporal punishment is now inflicted. The object of the prosecution is to remove the nuisance, and to that end alone the sentence is in general directed. It is therefore usual, when the nuisance is stated on the proceedings as continuing, in addition to a fine, to order the defendant at his own costs to abate the nuisance. 2 Stra. 686. By the 1 & 2 Geo. IV. c. 41, for facilitating the abatement, &c. of nuisances from furnaces in steam-engines, costs may be awarded to the prosecutor, and an order may be made for abating the nuisance; but the act does not extend to furnaces for mines.—Chitty.

[(q) ] Salk. 460.

[11 ] It is not essential, in order to constitute this a nuisance, that the smell, or other inconvenience complained of should be unwholesome: it is sufficient if it impairs the enjoyment of life or property. 1 Burr. 333. The material increase in a neighbourhood of noisome smells is indictable. Peake, Rep. 91. If the prosecutor be particularly affected by the nuisance, he will be entitled to costs under 5 W. and M. c. 11, s. 3. 16 East, 194.

To this class of public nuisances may be added that of making great noises in the streets in the night by trumpets or otherwise, (2 Stra. 704;) exhibiting monsters, (2 Ch. Ca. 110;) suffering mischievous animals, having notice of their propensity, to go loose, &c., (Dyer, 25. Vet. 171. 2 Salk. 662. 1 Vent. 295;) carrying about persons infected with contagious diseases. 4 M. & S. 73, 272, ante, 162. But neither an old nor a new dovecote is a common nuisance. Hawk. b. 1, c. 7, s. 8.—Chitty.

[(r) ] 1 Hawk. P. C. 198, 225.

[12 ] The keeping of bawdy-houses, gaming-houses, and disorderly houses of all descriptions, together with the unlawful pastimes there pursued, has been from time to time prohibited by various acts of parliament, (see them collected in Collyer’s Crimina. Statutes, Nuisance, 399, et seq.,) imposing various punishments and penalties upon offenders; and, by the 3 Geo. IV. c. 114, such offenders are punishable by sentence of imprisonment with hard labour for any term not exceeding the term for which the court before which they are convicted may now imprison for such offences, either in addition to or in lieu of any other punishment which might have been inflicted on such offenders by any law in force before the passing of that act. The keeping of a cock-pit is an indictable offence at common law, (as are the other offences above mentioned;) and a cock-pit has been held to be a gaming-house within the 33 Hen. VIII. c. 9, s. 11. 1 Russell, 300. Bawdy-houses and gaming-houses are clearly nuisances in the eye of the law. 1 Russell, 299. Rex vs. Higginson, 2 Burr. 1232. Rex vs. Rogier, 2 D. & R. 431. 1 B. & C. 272. Playhouses are not in themselves nuisances, though by neglect or mismanagement they may be rendered so. 1 Hawk. P. C. c. 32, s. 7. But, by 10 Geo. II. c. 28, all places for the exhibition of stage-entertainments must be licensed, (Rex vs. Handy, 6 T. R. 286, where it was held that tumbling was not a stage-entertainment within that act;) and, by 25 Geo. II. c. 36, all unlicensed places kept for such entertainments are to be deemed disorderly houses.—Chitty.

[(s) ] 1 Hawk. P. C. 225.

[(t) ] Stiernhook, de jure Sueon. l. 2, c. 9.

[13 ] The 19 Geo. III. c. 21 was repealed by the 22 Geo. III. c. 47, which was repealed by 42 Geo. III. c. 52, s. 27.

By the 42 Geo. III. c. 119, ss. 1, 2, all lotteries called little goes are declared to be public nuisances; and if any one shall keep an office or place to exercise or expose to be played any such lottery, or any lottery whatever not authorized by parliament, or shall knowingly suffer it to be exercised or played at in his house, he shall forfeit 500l. The provision as to the offender being deemed a rogue and vagabond seems repealed by the 5 Geo. IV. c. 83, which contained a provision to that effect.

And, by sect. 5 of the 42 Geo. III. c. 119, if any person shall promise to pay any money or goods on any contingency relative to such lottery, or publish any proposal respecting it, he shall forfeit 100l. State lotteries are now abolished, by statute 6 Geo. IV.—Chitty.

[14 ] The offender may be indicted on the statute or at common law. 4 T. R. 202. 1 Saund. 136, n. 4. Cowp. 650. 2 Burr. 863. And if any person shall make or sell any squibs, rocksts, or fire-works, he shall forfeit, upon conviction before a magistrate, 5l.,—one half to the informer and the other half to the poor. And if any person snail throw or fire them into any house, street, or highway, he shall forfeit 20s. in like manner. 9 & 10 W. III. c. 7.—Chitty.

[15 ] By 54 Geo. III. c. 152, so much of the 12 Geo. III. c. 61, s. 21 as enacts that no person shall carry in any land or water carriage any other lading with gunpowder is repealed.

Erecting powder-mills or keeping powder-magazines near a town is a nuisance at common law. See 2 Burn, J. 24th ed. 758. 2 Stra. 1167.—Chitty.

[(u) ] Kitch. of Courts, 20.

[(v) ] Ibid. 1 Hawk. P. C. 132.

[(w) ] 6 Mod. 21.

[(x) ] 1 Hawk. P. C. 198, 200.

[(y) ] 3 Inst. 219.

[(z) ] Valer. Maxim. l. 2, c. 6.

[(a) ]Nov. 80, c. 5.

[(b) ]LL Edw. c. 27. Bracton, l. 3, tr. 2, c. 10, 2.

[16 ] This act and all others relating to vagrants, &c. are now repealed, by the 5 Geo. IV. c. 83.—Chitty.

[(c) ] Sp. L. b. vii. c. 2 and 4.

[(d) ] 3 Inst. 199.

[17 ] At common law, the playing at cards, dice, and other games of chance, merely for the purposes of recreation, and without any view to inordinate gain, is regarded as innocent. Bac. Abr. Gaming, A. Com. Dig. Justices of the Peace, B. 42; and see the preamble to 16 Car. II. c. 7. But a common player at hazard using false dice is liable to be indicted at common law, (2 Roll. Abr. 78. Bac. Abr. Gaming, A.;) and any persons cheating by means of cards or dice might be fined or imprisoned in proportion to the nature of the offence. Bac. Abr. Gaming, A.; and see the 9 Anne, c. 15, s. 6.—Chitty.

[(e) ] Logetting in the fields, slide-thrift, or shove-groat, cloyish cayles, half-bowl, and coyting.

[(f) ]De Mor. Germ. c. 24.

[18 ] In the construction of this act it has been held that a wager on some matter arising from the game, and collateral to it, but not on the event itself, is not an offence within it. 1 Salk. 344. Hawk. b. i. c. 92, s. 47. 2 H. Bla. 43. In the construction of the words “at any one time or sitting,” it has been adjudged that where a sum above 10l. had been won and paid after a continuance at play, except an interruption during dinner-time, it was to be considered as won at one and the same sitting. 2 Bla. R. 1226.—Chitty.

[(g) ] 12 Geo. II. c. 28. 13 Geo. II. c. 19. 18 Geo. II. c. 34.

[(h) ] 10 & 11 W. III. c. 17. 9 Anne, c. 6, 56. 10 Anne, c. 26, 109. 8 Geo. I. c. 2, 36, 37. 9 Geo. I. c. 19, 4, 5, 6 Geo. II. c. 35, 29, 30.

[19 ] Newmarket and Black Hambleton are excepted, where a race may be run for any sum or stake less than fifty pounds. But though such horse-races are lawful, yet it has been determined that they are games within the statute of 9 Anne, c. 14, and that of consequence wagers above 10l. upon a lawful horse-race are illegal. 2 Bla. Rep. 706. A foot-race and a race against time have also been held to be games within the statute of gaming. 2 Wils. 36. So a wager to travel a certain distance within a certain time, with a post-chaise and a pair of horses, has been considered of the same nature. 6 T. R. 499. A wager for less than 10l. upon an illegal horse-race is also void and illegal. 4 T. R. 1. Though the owners of horses may run them for a stake of 50l. or more at a proper place for a horse-race, yet it has been held if they run them upon the highway the wager is illegal. 2 B. & P. 51.

Wagers in general, by the common law, were lawful contracts; and all wagers may still be recovered in a court of justice which are not made upon games, or which are not such as are likely to disturb the public peace, or to encourage immorality, or such as will probably affect the interests, characters, and feelings of persons not parties to the wager, or such as are contrary to sound policy or the general interests of the community. See 3 T. R. 693, where the legality of wagers is fully discussed.

Where a person had given 100l. upon condition of receiving 300l. if peace was not concluded with France within a certain time, and he afterwards brought his action to recover the 300l., it was held the wager was void, as being inconsistent with general policy; but he was allowed to recover back the 100l. which he had paid, under a count for so much money had and received by the defendant to his use. 7 T. R. 505. So also a person was permitted to recover back his share of a wager against a stakeholder upon a boxing-match, (5 T. R. 405,) the court not considering the conduct of the plaintiff in these instances so criminal as to deprive him of the benefit of their assistance. See 2 B. & P. 467.—Christian.

The statute 13 Geo. II. c. 19 is now repealed, by stat. 3 & 4 Vict. c. 5.—Stewart.

[(i) ] See book ii. page 417, &c.

[20 ] The doctrine, so frequently repeated by the learned commentator, that no person had originally, or has now, a right to kill game upon his own estate without a license or grant from the king, is controverted in 2 book, p. 419, n.—Christian.

[(j) ] Burn’s Justice, Game, 3.

[21 ] It must be a fee-simple estate of 100l. a year, or an estate for life of 150l. per annum.—Chitty.

[(k) ] Burn’s Justice, tit. Game.

[22 ] All these statutes are repealed, by stat. 1 & 2 W. IV. c. 32, and the law in this respect almost entirely altered. The necessity of any qualification for killing game was abolished, and it is enacted that every certificated person may kill game, subject to the law of trespass; and the sale of game by licensed persons and under certain restrictions is legalized.—Stewart.