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 negatively, by want of reparations. For both of these, the person so obstructing, or such individuals as are bound to repair and cleanse them, or (in default of these last) the parish at large, may be indicted, distrained to repair and mend them, and in some cases fined. And a presentment thereof by a judge of 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,

(7) 1 Hal. P. C. 671.
(m) 1 Hawk. P. C. 197.

(10) 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. & 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 punishable 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.

or common street, or public water, or such like public things, it is properly called a purpresture (p) (12). 2. All those kinds of nuisances (such as of

fensive trades and manufactures), which when injurious to a private [168] man are actionable, are, when detrimental to the public, "punishable by public prosecution, and subject to fine according to the quantity of the misdemeanor: and particularly the keeping of hogs in any city or market town is indictable as a public nuisance (q) (13). All disor

derly 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) (14). Inns, in particular, being intended 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). 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 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 licence and regulate the keepers of such lottery-offices (15), (16). 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 (17). 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 (t) Stiernh. de jure Sueon. 1. 2, c. 9.

(r) 1 Hawk. P. C. 198. 225. (s) Ibid. 225.

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. (14) 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 Criminal 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 of fences, 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 cockpit is an indictable offence at common law, (as are the other offences above mentioned,) and a cockpit has been held to be a gaming-house within the 33 Hen. VIII. c. 9, § 11. 1 Russell, 300. Bawdy-houses and gaming-houses are clearly nuisances in the eye of the law. 1 Russell, 299. Rex v. Higgin. son, 2 Burr. 1232. Rex v. Rogier, 2 D. and R. 431; 1 B. and C. 272. Playhouses are not in themselves nuisances, though by neglect or mismanagement they may be rendered so. 1 Haw. P. C. c. 32, § 7. But by 10 Geo. II. c. 28, all places for the exhibition of stage-entertainments must be licensed, (Rex v. 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.

(15) 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 5001. 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 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 1007. State lotteries are now abolished by statute 6 Geo. IV.

(16) The constitution. of New-York prohibits lotteries, except such as were then authorized. (Art. 7. sect. 11.).

(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.

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 nuisance 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 nuisance to her neigh[*169] bourhood. 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, 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 (x).

6. Idleness in any person whatsoever is also a high offence against 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), 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 (2): 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 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 [*170] 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 ancient laws, whoever

(t) Kitch. of courts, 20.

(u) Ibid. 1 Hawk. P. C. 132.

(v) 6 Mod. 21.

(w) 1 Hawk. P. C. 198. 200.

(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.

(z) 3 Inst. 219.

(y) Valer. Maxim. 1. 2, c. 6.
(z) Nov. 80, c. 5

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

harboured any stranger for more than two nights, was answerable to the public for any offence that such his inmate might commit (a) (19), (20).

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 (5), 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 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 Ed. 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 [171] 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 ancient and opulent families, an abandoned prostitution of every principle of honour and virtue, and too often hath ended in self-murder (21). 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 tenis, tables, cards, dice, bowls, and other unlawful diversions there specified (d), 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 wherein servants are permitted to game, as upon the servants themselves who are 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 (a) LL. Edw. c. 27. Bracton, l. 3, tr. 2, c. 10, ◊ 2. (b) Sp. L. b. 7, c. 2 and 4. (c) 3 Inst. 199.

(19) This act, and all others relating to vagrants, &c. are now repealed by the 5 Geo. IV. c. 83.

(20) See 1 R. S. 632, as to vagrants in New-York.

(21) 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. Justi.

(d) Logetting in the fields, slide thrift or shovegroat, cloyish cayles, half-bowl, and coyting

ces 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.