sive 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 quality, of the misdemesnor; and particularly the keeping of hogs in any city or market town is indictable as a public nusance. (q)" All disorderly inns or ale-houses, bawdy.

13

q Salk. 460.

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 Russel, 463. Nor is it necessary, in order to fix the responsibility on the defendant, to shew that he immediately obstructed the public way, or even intended so to do; 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 abat ed. 1 Ventr. 169. 1 Mod. 76. 2 Keb. 846. Bac. Abr. Nuisance. But distributing hand-bills in a public way has been holden not to be illegal, 1 Burr. 516.; and it may be collected that a mere transitory obstruction, which must necessarily occur, is excuseable, if all reasonable promptness be exerted. So that the erection of a scaffolding to repair a house, the unloading a cart or waggon, 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 watercourses by actual obstruction, any diversion of a public river, whereby the current is weakened and rendered incapable of carrying vessels of the same burthen as it could before, is a common nuisance. Hawk. b. i. 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. But it should seem, that where a building is not a nuisance in itself, but becomes so either by its extension or the use made of it for carrying on a noxious trade, the house itself ought not to be demolished, but only such part removed as annoys the public, or such injurious occupation discontinued. Id. ibid. And where the nuisance is not charged as still existing, but as having been offensive on a day specified, no judgment need be given to abate, because it would be absurd to adjudge that to be destroyed, which does not appear to exist. 8 T. R. 142. And if the court be satisfied that a nuisance indicted is already effectually abated, before judgment is prayed upon the indictment, they will not in their discretion give judgment to abate it; and they refused to give such judgment upon an indictment for an obstruction in a public highway, which highway, after the conviction of the defendant, was regularly turned by an order of justices, and a certificate obtained, that the new way was fit for the passage of the public, and on affidavits that so much of the old way indicted, as was still retained, was freed from all obstructions. 13 East, 164. As to the power of a court of equity to abate a nuisance, see 18 Ves. 211. 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.

(13) 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. & 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.

houses, gaming-houses, stage-plays unlicensed, booths and stages for ropedancers, mountebanks, and the like, are public nusances, and may upon in

dictment be suppressed and fined. (r)" Inns, in particular, being in[168] tended for the lodging and receipt of travellers, may be indicted,

suppressed, and the inn-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) 15 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 nusances, and all grants, patents, or licences 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.16 5. The making and

(14) As to the offence of keeping a bawdy-house or other disorderly house, see in general, Bac. Ab. Nuisances, A. Hawk. b. 1. c. 74. Burn J. Lewdness. Keeping a house of ill-fame, and encouraging suspicious or disorderly persons to resort thither, is an offence punishable at common Jaw with fine and imprisonment, in the discretion of the court; usually imprisonment in the case of married women. Hawk. b. 1. c. 74. Rep. T. Hardw. 278. vide ante. If a person be only a lodger, and make use of her room for disorderly purposes, she would be guilty of keeping a bawdy-house, as if she were the proprietor of the whole house. 2 Lord Raym. 1197. 1 Salk. 382. A wife, as well as her husband, may be indicted for keeping a disorderly house. 1 Salk. 384. The 25 Geo. II. c. 36. s. 2. provides, that unlicensed places of public entertainment shall be considered as disorderly places, and that the person acting as master shall be deemed the keeper. And the same act, sec. 5. points out how constables may be compelled to prosecute for keeping bawdy and disorderly houses. See also the 58 Geo. III. c. 70. s. 7. which requires the overseers to prosecute. By the 3 Geo. IV. c. 114. keeping a bawdy or other disorderly house, is punishable with hard labour and imprisonment, in addition, or lieu of any other punish

ment.

There is no doubt that common gaming-houses are public nuisances; and that the keeper may be indicted at common law, Hawk. b. 1. c. 25. s. 6. 1 Russ. 433. 10 Mod. 386.; and see the late case, 1 B. & C. 272. 2 D. & R. 431. S. C. By the 58 Geo. III. c. 70. s. 8. the person appearing or acting as master, or as having the care and management of any gaming-house, shall be deemed the keeper thereof, and liable as such. The 25 Geo. II. c. 36. s. 5. and 53 Geo. III. c. 70. s. 7. shew in what manner constables or overseers may be compelled to prosecute. Independently of the common law, the 33 Hen. VIII. c. 9. s. 11. prohibits the keeping any gaming-house for profit, under a penalty of 40s. a day; merely playing at an inn or tavern, where the owner derives no gain from it, is not within the act, Dalt. c. 46. By the same act, sect. 12. haunting and using such gaming-houses is prohibited under a penalty of 6s. 8d.; and by 18 Geo. II. c. 34. no person shall keep any house or place for playing, or permit any person within such house to play at any prohibited game, with cards or dice, under the penalties of the 12 Geo. II. c. 28. s. 1. As to gaining in public-houses, see 3 Geo. IV. c. 77. s. 9. By the 5 Geo. IV. c. 83. s. 4. (the vagrant act) persons playing or betting in any open or public place, at or with any table or instrument of gaming, at any game or pretended game of chance, may be treated as vagrants. By the 3 Geo. IV. c. 114. the offence of keeping a common gaming-house, may be punished with imprisonment and hard labour, in addition to, or in lieu of any other punishment.

Players are not included in the
Tumbling is not an entertain-
Chitty.

As to the licensing stage-players, see the 28 Geo. III. c. 30. vagrant act, 5 Geo. IV. c. 85. which repealed the 17 Geo. II. c. 5. ment of the stage within the 10 Geo. II. c. 28. 6 T. R. 286. (15) And for further as to this, see 6 Term Rep. 17. Hawk. b. 1. c. 78. s. 2. Bull. N. P. 73. 5 T. R. 273.

(16) 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. s. 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, seeins repeated by the 5 Geo. IV. c. 83. which contained a provision to that effect.

And by sec. 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 100%.

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 nusance, by statute 9 & 10 W. III. c. 7. and therefore is punishable by fine." And to this head we may refer (though not declared a common nusance) 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.18 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 nusance and presentable at the court-leet: (t) or are indictable at the sessions, and punishable by fine and finding sureties for their good behaviour. (u) 7. Lastly, a common scold, communis rixatrix (for our law-latin confines it to the feminine gender), is a public nusance to her neighbourhood. For which offence she may be indicted; (v) and if convicted, shall (w) be sentenced to be placed in a certain engine of correction called the trebucket, castiga. tory, 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. (x)

:

6. Idleness in any person whatsoever is also a high offence against [169] the public oeconomy. 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, (y) only that the Athenians, knowing they were to give an account of their occupations, should follow such as were laudable, and that there might be no room left for such as lived by unlaw. ful arts. The civil law expelled all sturdy vagrants from the city: (x) and, in our own law, all idle persons or vagabonds, whom our ancient 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 come, nor whither they go," or such as are more particu. larly 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 go

t Kitch. of courts. 20. w1 Hawk. P. C. 198. 200.

u Ibid. 1 Hawk. P. C. 132.
y Valer. Maxim. 1. 2. c. 6.

x 3 Inst. 219.

v 6 Mod. 21.
z Nov. 80. c. 5.

By the same act justices of the peace upon complaint may empower any person by day, and in the night in the presence of a constable, to break open doors and apprehend such offenders; and see further the 1 & 2 Geo. IV. c. 120. The last lottery act, 4 Geo. IV. c. 60. s. 19., intimates that lotteries will not be continued. Indeed it may be objected, that this system of publicly encouraging such speculations, is contrary to the general policy of the law discouraging gaming contracts. Chitty.

(17) 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, rockets, or fire-works, he shall forfeit, upon conviction before a magistrate, 51. one half to the informer, and the other half to the poor. And if any person shall throw or fire them into any house, street, or highway, he shall forfeit 20s. in like manner. 9 & 10 W. III. c. 7.

(18) 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. 24 ed. 758. 2 Stra. 1167.

V

vernment 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 manner as, by our [170] ancient laws, whoever harboured any stranger for more than two nights, was answerable to the public for any offence that such his inmate might commit. (a) 19

19

a LL. Edw. c. 27. Bracton. 1. 3. tr. 2. c. 10. § 2.

(19) This act and all others relating to vagrants, &c. are now repealed by the 5 Geo. IV. c. 83, which on account of its importance it is thought expedient to abstract. By the 3d section,

IDLE AND DISORDERLY persons are, 1. Any person being able wholly or in part to maintain himself or family by any means, and refuses or neglects so to do, whereby he or his family, whom he may be bound to inaintain, become chargeable to any parish, &c. 2. Persons returning to and becoming chargeable in any parish, &c. from whence he shall have been removed by order of two justices of the peace, unless he produce a certificate of the churchwardens and overseers of the poor of some other parish, &c. thereby acknowledging him to be settled in such other parish, &c. 3. Petty chapmen or pedlars wandering abroad and trading without being duly licensed or otherwise authorized by law. 4. Common prostitutes wandering in the public streets or public highways, or in any public place of resort, and behaving in a riotous or indecent manner. 5. Persons wandering abroad, or placing themselves in any public place, street, highway, court, or passage, to beg or gather alms, or causing, or procuring, or encouraging any child so to do.

These offenders are by the same act punishable by a single justice, with one month's imprisonment and hard labour.

ROGUES AND VAGABONDS are by sec. 4. 1. Persons committing any of the offences before mentioned, after having been convicted as idle and disorderly persons. 2. Persons pretending or professing to tell fortunes, or using any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose on any of his majesty's subjects. S. Persons wandering abroad and lodging in any barn or outhouse, or in any deserted or unoccupied building, or in the open air, or under a tent, or any cart or waggon, not having any visible means of subsistence, and not giving a good account of themselves. 4. Persons wilfully exposing to view in any street, road, highway, or public place, any obscene print, picture, or other indecent exhibition. 5. Persons wilfully, openly, lewdly, and obscenely, exposing their persons in any street, road, or public highway, or in the view thereof, or in any place of public resort, with intent to insult any female. 6. Persons wandering abroad and endeavouring, by exposure of wounds or deformities, to obtain or gather alms. 7. Persons going about as gatherers or collectors of alms, or endeavouring to procure charitable contributions of any nature or kind under any false or fraudulent pretence. 8. Persons running away and leaving their wives or child chargeable, or whereby they shall become chargeable to any parish, &c. 9. Persons playing or betting in any street, road, highway, or other open and public place, at or with any table or instrument of gaming at any game or pretended game of chance. 10. Persons having in their custody any picklock, key, crow-jack, bit, or other implement, with intent feloniously to break into any dwelling-house, warehouse, coach-house, stable, or out-building, or being armed with any gun, pistol, hanger, cutlass, bludgeon, or other offensive weapon; or having upon them any instrument, with intent to commit any felonious act. 11. Persons being found in or upon any dwelling-house, warehouse, coach-house, stable, or outhouse, or in any enclosed yard, garden, or area, for any unlawful purpose. 12. Suspected persons, or reputed thieves, frequenting any river, canal, or navigable stream, dock, or basin, or any quay, wharf, or warehouse, near or adjoining thereto, or any street, highway, or avenue leading thereto, or any place of public resort, or any avenue leading thereto, or any street, highway, or place adjacent, with intent to commit felony. 13. And every person apprehended as an idle and disorderly person, and violently resisting any constable or other peace officer so apprehending him, and being subsequently convicted of the offence for which he shall have been so apprehended.

These offenders are, by the same act, punishable by a single magistrate, with three calendar months' imprisonment and hard labour.

INCORRIGIBLE ROGUES, are by sec. 5. 1. Persons breaking or escaping out of any place of legal confinement before the expiration of the term for which they shall have been committed, or ordered to be confined by virtue of the act. 2. Persons committing any offence against the act which shall subject them to be dealt with as a rogue and vagabond, such person having

7. Under the head of public oeconomy 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, (b) 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 senti- V ments as to this point; for formerly there were a multitude of penal laws existing, to restrain excess in apparel; (c) 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 in diet, there still remains one ancient 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, [171] which is generally introduced to supply or retrieve the expenses oc. casioned 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, ancient and opulent families, an abandoned prostitution of every principle of honour and virtue, and too often hath ended in self-murder. 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, (d) unless in the time of Christmas, under pecuniary pains and imprisonment. b Sp. L. b. 7. c. 2. and 4.

20

e 3 Inst. 199.

d Logetting in the fields, slide thrift or shove-groat, cloyish cayles, half-bowl, and coyting. been at some former time adjudged so to be and duly convicted thereof. 3. And every person apprehended as a rogue and vagabond, and violently resisting any constable or other peace officer so apprehending him, and being subsequently convicted of the offence for which he shall have been so apprehended.

These offenders are to be committed to the next sessions, and kept to hard labour in the interim; and the sessions may further punish them by imprisonment with hard labour for one year, with whipping, if not females.

By the 6th section of the act, any person may apprehend the offenders against it; and a penalty is enforced on constables neglecting their duty; see also sec. 11. By the 7th sect. justices may use their warrants to apprehend suspected offenders. By the 8th sect. all vagrants are to be searched, and their trunks and bundles, &c. to be inspected; and by sec. 13. lodging-houses, &c. suspected to conceal vagrants, may be searched, and suspected persons brought before a justice. By the 9th sect. justices may bind persons by recognizance to prosecute vagrants at ses. sions, and a power is given to sessions to order payment of expenses to prosecutors and witnesses, &c. and see sec. 12. Chitty. (20) 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. Ab. 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 Rol. Ab. 78. Bac. Ab. 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. Ab. Gaming, A.; and see the 9 Ann. c. 15. s. 6.