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dise, provisions, or workmanship, were prohibited upon pain of forfeiture of goods and perpetual banishment.
10. To exercise a trade in any town, without having previously served as an apprentice for seven years (s), is looked upon to be detrimental to public trade, upon the supposed want of sufficient skill in the trader : and therefore is punished by statute 5 Eliz. c. 4. with the forfeiture of forty shillings by the month (20).
11. Lastly, to prevent the destruction of our home manufactures by transporting and seducing our artists to settle abroad, it is provided by statute 5 Geo. I. c. 27. that such as so entice or seduce them shall be fined 1001. and be imprisoned three months : and for the second offence shall be fined at discretion, and be imprisoned a year: and the artificers, so going into foreign countries, and not returning within six months after warning given them by the British ambassador where they reside, shall be deemed aliens, and forfeit all their land and goods, and shall be incapable of any legacy or gift. By statute 23 Geo. II. c. 13. the seducers incur, for the first offence, a forfeiture of 5001. for each artificer contracted with to be sent abroad, and imprisonment for twelve months; and for the second, 10001. and are liable to two years' imprisonmentand by the same statute, connected with 14 Geo. III. c. 71. if any person exports any tools or utensils used in the silk, linen, cotton, or woollen manufactures (excepting woolcards to North America) (1), he forfeits the same and 2001., and the captain of the ship (having knowledge thereof) 100l.; and if any captain of a king's ship, or officer of the customs, knowingly suffers such exportation, he forfeits 100l. and his employment; and is for ever made incapable of bearing any public office: and every person collecting such tools or utensils, in order to export the same, shall, on conviction at the assises, forfeit such tools and also 2001. (21)
OF OFFENCES AGAINST THE PUBLIC HEALTH, AND
THE PUBLIC POLICE OR OECONOMY.
The 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 Provi(8) Seo book I. page 427.
(1) Stat. 15 Geo. III. c. 5.
(20) The 54 Geo. III. c. 96, § 1, repeals so vides, that the customs of London concerning much of the 5 Eliz. c. 4, as provides ihat per- apprentices are not to be affected. For the sons shall not exercise any art or manual oc- decisions upon the 5 Eliz. c. 4, respecting the cupation, except they had served an appren- exercising of trades by unqualified persons, ticeship of seven years. 2 renders valid see 2 Harrison's Digest, 518, title Trade. certain indentures of apprenticeship which (21) All the slatutes prohibiting artificers would have been void by certain provisions from going abroad are repealed by 5 Geo. IV. in the old Act, and repeals the part of the Act e. 97; so that artists may now settle in focontaining such provisions. 9 3 provides that reign parts without any restrictions or liabilijustices may determine complaints respecting ties. apprenticeships as heretofore. And 4 pro
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 1001. if done by the wholesale merchant ; and 401. 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 vice, to render him criminally liable. 2 East, P. statutes relative to the quarantine laws are re- C. 822. 6 East, 133 to 141. If a haker direct pealed, and other provisions are made, similar his servant to make bread containing a specific in their nature to the former : see the prior quantity of alum, which, when mixed with the statutes and decisions thereon, Burn J. 24 ed. Other ingredients is innoxious, but in the exe. tit. Plague ; 2 Chit. Crim. Law, 551 ; and 2 cution of these orders, the agent mixes up the Chit. Commercial L. 62 to 87.
drug in so unskilful a way that the bread beIt is a misdemeanor at common law to ex. comes unwnolesome, the master will be liable pose a person labouring under an infectious to be indicted. 3 M. & S. 10. 4 Camp. 10. disorder, as the small pox, in the streets or But an indictment will not lie against a miller other public places. 4 M. & S. 73. 272. An for receiving good barley to grind at his mill, indictment lies for lodging poor persons in an and delivering a mi of oat and barley unhealthy place. Cald. 432.
which is musty and unwholesome'. 4 M. & (2) As to quarantines in New York, see 1 S. 214. R. S. 425, &c.
(4) And by the 1 Wm. & M. st. 1. c. 34. s. (3) It is a misdemeanor at cominon law to 20. any person selling wine, corrupting or give any person injurious food to eat, whether adulterating it, or selling it so adulterated, the offender be excited by malice, or a desire of shall forfeit 3001., half to the king, and half to gain; nor is it necessary he should be a public the informer, and shall be imprisoned three contractor, or the injury done to the public ser- 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 1001. 3. To make a false entry in a marriage register; to alter it when made ; to forge, or counterfeit such entry, or a marriage 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 plu.
rality of wives at once (6). Such second marriage, living the for[*164] mer husband or wife, is simply void, and a mere nullity, by the "ec
clesiastical 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
(a) 6 & 7 W. III. c. 6. 7 & 8 W. III. c. 35. 10 st. 3, c. 5, and bigamy thereupon becamo no uncom, Ann. c. 19, 0176.
mon counter-plea to the claim of the benefit of (b) 3 Inst. 88. Bigamy, according to the canon- clergy. (M. 40 Edw. III. 42. U. 11 Hen. IV, 11. 48. ists, consisted in marrying two virgins successive- M. 13 Hen. IV. 6 Staundf. P. C. 134.) The cognily, one after the death of the other, or once marry- zance of the plea of bigamy was declared by sta. ing a widow. Such were esteemed incapable of or. tute 18 Edw. III. st. 3, c. 2, to belong to the court ders, &c.; and by a canon of the council of Lyons, christian, like that of bastardy. But by stat. 1 Edw. A. D. 1274, held under pope Gregory X. were omni
bigamy was declared to be no longer privilegio clericali nudati, et coercioni fori secularis an impediment to the claim of clergy. See Dal. 21. addicti. (6 Decretal, 1. 12.) This canon was adopt. Dyer, 201. ed and explained in England, by statute 4 Edw. I.
(5) This act is now repealed by the 4 Geo. alter, forge, or counterfeit any such entry, or IV. c. 76. and clergy is restored.
to make, alter, forge, or counterfeit any licence By the 21st section of the 4 Geo. IV. c. 76. of marriage, or to utter or publish, as true, any it is felony, with transportation for life, to so- such false, &c. register as aforesaid, or a copy lemnize matrimony in any other place than in thereof, or any such false, &c. licence; or to a church or chapel, wherein banns may be destroy any such register book of marriages, lawfully published, or at any other time ihan or any part thereof, with intent to avoid any between eight and twelve in the morning, ex. marriage, or to subject any person to any of cept by special licence from the archbishop of the penalties of that act. But this act does Canterbury; or to solemnize it without due not extend to marriages of Quakers or Jews. publication of banns unless by licence, or to Independently of this statute, these offen. solemnize it according to the rites of the ces were punishable at coinmon law, and sub. church of England, falsely pretending to be jected the offender to severe imprisonment and in holy orders; but the prosecution must take fine. 2 Sid. 71. place in three months.
(6) There are no such laws in New York, By the 28th section of the same act it is fe. marriage being left there as it was at common lony, punishable with transportation for life, to law. Sce 2 Ř. S. 138: & 3 id. App. p. 151. insert in the registry book'any false entry of see also anto, book 1. p. 433, note 1. p. 436 any thing relating to any marriage, or to make, note 13.
VI. c. 12,0
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 (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 exceptionn five cases, in which such second marriage, though in the three first it is old, 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
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.
(e) 1 Hal. P. C. 693. (d) Stiernh. de jure Sueon. I. 3, c. 2.
) 3 Inst. 89. Kel. 27. 1 Hal. P. C. 694. (7) In New-York, 5 years' absence is a suf. years; and any such offence may be dealt ficient excuse, but the divorce a mensa merely with, inquired of, tried, determined, and puis no excuse : and the party whose adultery nished in the county where the offender shall has been the cause of an absolute divorce can- be apprehended, or be in custody, as if the of not marry. In addition to the excuses men- fence had been actually committed in that tioned in the text, the sentence of a husband county : provided always, that nothing herein or wife to imprisonment for life sanctions a contained shall extend to any second marriage, new marriage by the other party: (2 R. S. contracted out of England by any other than 139, 95, & 687, Ø 9.) The punishment may a subject of his majesty, or to any person be imprisonment for five years. (Id. Ø 8.) marrying a second time, whose husband or See also, ante, note 6, p. 163.
wife shall have been continually absent from (8) By 9 Geo. IV. c. 31, $ 22, it is enacted, such person for the space of seven years then " That if any person being married, shall mar- last past, and shall not have been known by such ry any other person during the life of the for. person to be living within that time, or shall exmer husband or wife, whether the second tend to any person who at the time of such semarriage shall have taken place in England cond marriage shall have been divorced from or elsewhere, every such offender, and every the bond of the first marriage, or to any person person counselling, aiding, or abetting such whose former marriage shall have been declar. offender, shall be guilty of felony, and, being ed void by the sentence of any court of comconvicted thereof, shall be liable to be traus- petent jurisdiction." ported beyond the seas for the term of seven Three important improvements in the law years, or to be imprisoned, with or without relating to bigamy are introduced by this enhard labour, in the common gaol, or House of actment. First, the offence is now punishCorrection, for any term not exceeding two able wherever committed; formerly it was not Vol II.
3. A third species of felony against the good order and 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 (9).
4. Outlandish persrus calling themselves Egyptians, or gypsies, are another object of the deverity 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 (1) 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 an
swers 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.
Gloss. 1. 200. punishable at all, if committed out of the juris. again. 1 East, P. C. 468. On an indiciment diction of England. Secondly, the absence of for bigamy, where the first marriage is in Eng. one party for seven years abroad, will not now land, it is not a valid defence to prove a diexcuse the second marriage, if such party be vorce a vinculo out of England before the se. known by the other party to have been alive cond marriage, founded on grounds on which within that period; formerly the mere absence a divorce a vinculo could not be obtained in was a protection, though the absent party was England. Rex v. Lolley, R. and R. C.C. well known by the other to be living. Thirdly, 237, cited in Torey v. Lindsay, 1 Dow. 117. a divorce a vinculo alone will now justify the The burthen of proving the first marriage to second marriage ; formerly a divorce a menså have been legal, lies upon the prosecutor. et thoro was held sufficient. 1 East, P. C. 466. Rex v. James, R. and R. C. C. 17; Rex v. In a prosecution for bigamy it has been said, Morton, id. 19; Rex v. Butler, id. 61. The that a marriage in fact must be proved. Mor- Act extends to all dissenters except Jews and ris v. Miller, 4 Burr. 2059 ; but see Trueman's Quakers. Upon the subject of bigamy gene. case, 1 East, P. C. 470 ; but if proved by a rally, see 1 Hawk. P. C. c. 32; 1 East, P. C. person who was present, it does not seem ne- c. 12; 1 Russell, c. 23; Butler's Co. Litt. cessary to prove the registry or licence. Rex 79, b. n. 1; 3 Stark. Ev. Polygamy. v. Allison, R. and R. C. C. 109; and it mat- (9) But this act of Eliz. is now repealed ters not that the first marriage is voidable, by by the 52 Geo. III. c. 31. By the 43 Geo. III.c. reason of affinity, &c. 3 Inst. 88. Parties 61. soldiers, sailors, mariners, and the wives of who are within age at the time of the first soldiers mentioned therein, are relieved against marriage, subsequently affirming the union by the penalties of the vagrant acts. See also the their consent, will be liable to be punished for 58 Geo. III. c. 92. and the annual mutiny act; bigamy if they break that contract and marry and see the vagrant act, post, 169.
(1) Gloss. 193.