dence 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 this 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 farther, 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 *me- [*162] thod 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 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). 2 A second, but much inferior species of offence against public health is the selling of unwholesome provisions (3). 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. 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 oeconomy. By the public police and oeconomy I mean the due regulation and domestic order of the kingdom; whereby the individuals of the state, like members of a well (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. 24 ed. tit. Plague; 2 Chit. Crim. Law, 551; and 2 Chit. Commercial L. 62 to 87. It is a misdemeanor at common law to expose a person labouring under an infectious. disorder, as the small pox, 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. (2) As to quarantines in New-York, see 1 R. S. 425, &c. (3) It is a misdemeanor 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 ser vice, 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 oat and barley which is musty and unwholesome. 4 M. & S. 214. (4) And by the 1 Wm. & 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 thre months. 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 misdemeanors only. Among the former are, [*163] *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 licence from the archbishop of Canterbury;-and, 2. To solemnize marriage in such church or chapel without due publication of banns, or licence 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 100%. 3. To make a false entry in a marriage register; to alter it when made; to forge, or counterfeit such entry, or a marriage licence: 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), (6). 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 for[164] mer 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 (a) 6 & 7 W. III. c. 6. 7 & 8 W. III. c. 35. 10 Ann. c. 19, 176. (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, 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. (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 cence from the archbishop of Canterbury; or to solemnize it without due publication of barns unless by licence, 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, its being so great a violation of the st. 3, c. 5, and bigamy thereupon became no uncom mon 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. I Edw. VI. c. 12, 16, bigamy was declared to be no longer an impediment to the claim of clergy. See Dal. 21. Dyer, 201. alter, forge, or counterfeit any such entry, or to make, alter, forge, or counterfeit any licence 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. licence; 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. (6) There are no such laws in New-York, marriage being left there as it was at common law. See 2 R. S. 138: & 3 id. App. p. 151. see also anto, book 1. p. 433, note 1. p 436 note 13. public oeconomy 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 ancient and modern Sweden with death (4). 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 (ƒ). 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 (7). 4. Where the first marriage is declarad 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 mararige, [165] 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 (8). (c) du mor. Germ. 18. (d) Stiernh. de jure Sueon. 1. 3, c. 2. (7) In New-York, 5 years' absence is a sufficient excuse, but the divorce a mensa merely is no excuse and the party whose adultery has been the cause of an absolute divorce cannot marry. In addition to the excuses men. tioned in the text, the sentence of a husband or wife to imprisonment for life sanctions a new marriage by the other party. (2 R. S. 139, 5. & 697, § 9.) The punishment may be imprisonment for five years. (Id. § 8.) See also, ante, note 6, p. 163. (8) 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 VOL II. (e) 1 Hal. P. C. 693. (f) 3 Inst. 89. Kel. 27. 1 Hal. P C. 694. years; and any such offence may be dealt with, inquired of, tried, determined, and panished in the county where the offender shall be apprehended, or be in custody, as if the of fence 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 com petent jurisdiction." Three important improvements in the law relating to bigamy are introduced by this en actment. First, the offence is now punishable wherever committed; formerly it was not 65 3. A third species of felony against the good order and oeconomy 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 (9). 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 imposters and jugglers, who where 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 at 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 supposes [166] 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 formid able 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 de (g) 3 Inst. 85. (h) Cosmogr. l. 3. 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 mensa 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 v. 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 licence. Rex v. Allison, R. and 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 (i) Gloss. 193. (k) Dufresne. Gloss. 1. 200. 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 v. Lolley, R. and R. C. C. 237, cited in Tovey v. Lindsay, 1 Dow. 117. The burthen of proving the first marriage to have been legal, lies upon the prosecutor. Rex v. James, R. and R. C. C. 17; Rex v. Morton, id. 19; Rex v. Butler, id. 61. The Act extends to all dissenters except Jews and Quakers. Upon the subject of bigamy gene. rally, 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. (9) 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 tiny act; and see the vagrant act, post, 169 scribed by statute 22 Hen. VIII. c. 10. as "outlandish people, calling themselves Egyptians, using no craft nor feat of merchandize, 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 linguae. And afterwards, it is enacted by statute 1 & 2 Ph. & 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 naturalborn 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 assises no less than thirteen gypsies where 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 [*167] this, of carrying these laws into practice (10). : 5. To descend next to offences whose punishment is short of death. Common nuisances are a species of offence against the public order and oeconomical 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 book (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 (11), bridges, and public rivers, by rendering the same inconvenient or dangerous to pass, either positively, by actual obstructions; or nega tively, 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 de fault 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 assise, &c. or a justice of the peace, shall be in all respects equivalent to an indictment (o).3 Where there is a house erected, or an inclosure made, upon any part of the king's demesnes, or of an highway, (2) 1 Hal. P. C. 671. (10) This act of 5 Eliz. c. 20. is repealed by the 23 Geo. III. c. 51; and now by the 1 Seo. IV. c. 116. so much of the 1 & 2 P. & M. c. 4. as inflicts capital punishment is re (n) Book III. page 216. (0) Stat. 7 Geo. III. c. 42. pealed. Gypsies are now only parishable under the vagrant act. See post, 169. (11) See also 7 & 8 Geo. IV. c. 30, 13 and 2 R. S. 695, § 30, &c. (3) See Hov. n. (3) at the end of the Vol. B. IV |