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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 sbire 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 (?), 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
of his fellow-subjects. Or 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, fc. 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, (1) 1 Hal. P. C. 671.
(n) Book III. page 216. (m) 1 Hawk. P. C. 197.
(o) Stat. 7 Geo. III. c. 42.
(10) This act of 5 Eliz. c. 20. is repealed pealed. Gypsies are now only punishable by the 23 Geo. III. c. 51; and now by the 1 under the vagrant act. See post, 169. Geo. IV. c. 116. so much of the 1 & 2 P. & (11) See also 7 & 8 Geo. IV. c. 30, $ 13, N. c. 4. as inflicts capital punishment is re- and 2 R. S. 695, 9 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, *punish
able 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 (2) (13). All disor
(p) Co. Litt. 277, from the French pourpris, an (9) Salk. 460.
(12) The general highway act is now the for a nuisance continue the same, he is again 13 Geo. III. c. 78. which repeals the 7 Geo. indictable for such continuance. 8 T. R. 142. III. c. 42. The 3 Geo. IV. c. 126. is the gene- Independently of any legal proceedings, it apral turnpike act.
pears that any person may lawfully abate a With respect to nuisances in general to public nuisance, at least if it be placed in the highways, &c. by actual obstruction, it is to be middle of a highway, and obstruct the passage observed, that every unauthorized obstruction of his majesty's subjects, Hawk. b. 1. c. 75. of the highway, to the annoyance of the king's s. 12; but though a party may remove the subjects, is an indictable offence. 3 Camp. nuisance, yet he cannot remove the mate227. Thus if a wagoner, carrying on a very rials or convert them to his own use, Dalt. C. extensive concern, constantly suffers wag. 50; and so much of the thing only as causes ons to remain on the side of the highway on the nuisance ought to be removed, as if a which his premises are situate, an unreason- house be built too high, only so much of it as able time, he is guilty of a nuisance. 6 East, is too high should be pulled down. 9 Rep. 53 427. 2 Smith, 424. And if stage coaches God. 221. 2 Sira. 686. regularly stand in a public street in London, With respect to nuisances to water-courses though for the purpose of accommodating pas. by actual obstruction, any diversion of a public sengers, so as to obstruct the regular tract of river, whereby the current is weakened and carriages, the proprietor may be indicted. 3 rendered incapable of carrying vessels of the Camp. 224. So a timber merchant occasion. same burthen as it could before, is a common ally cutting logs of wood in the street, which nuisance. Hawk. b. 1. c. 75. s. ll. But if a he could not otherwise convey into his premi. ship or other vessel sink by accident in a ri. ses, will not be excused by the necessity, ver, although it obstruct the navigation, if the which, in choosing the situation, he himself owner removes it in a reasonable time, it is created. 3 Camp. 230. It is even said that not indictable as a nuisance, 2 Esp. 675. No. " if coaches on the occasion of a rout wait an length of time will legalize the nuisance, 6' unreasonable length of time in a public street, East, 195. supra ; and even the rightful existand obstruct the transit of his majesty's sub.ence of a weir of brushwood will not authorize jects who wish to pass through it in carriages the building one of stone in its room. 7 East, 199. or on foot, the persons who cause and permit With respect to the punishment for nuisan. such coaches so to wait, are guilty of a nui- ces to highways, &c. The offenders may be sance.” 3 Camp. 226 ; and see 1 Russel. fined and imprisoned. Hawk. b. I. c. 75. s. 463. Nor is it necessary, in order to fix the 14. But no confinement or corporal punishresponsibility on the defendant, to shew that ment is now inflicted. The object of the he immediately obstructed the public way, or prosecution is to remove the nuisance, and to even intended to do so ; it seems to be suffi- that end alone the sentence is in general dicient if the inconvenience result, as an imme- rected. It is therefore usual, when the nui. diate consequence of any public exhibition or sance is stated on the proceedings, as continuact ; for the erection of a booth to display ing, in addition to a fine, to order the defeud. rope-dancing, and other attractive spectacles, ant at his own costs to abate the nuisance. 2 near a public street in London, which draws Stra. 686. By the 1 & 2 Geo. IV. c. 41. for together a concourse of people, is a nuisance, facilitating the abatement, &c. of nuisances liable to be punished and abated. 1 Ventr. from furnances in steam-engines, costs may be 169. 1 Mod. 76. 2 Keb. 846. Bac, Abr. awarded to the prosecutor, and an order may Nuisance. And it may be collected that a be made for abating the nuisance ; but the mere transitory obstruction, which must ne- act does not extend to furnaces for mines. cessarily occur, is excuseable, if all reason- (13) It is not essential, in order to constis able promptness be exerted. So that the erec- tute this a nuisance, that the smell or other tion of a scaffolding to repair a house, the inconvenience complained of, should be ununloading a car or wagon, and the delivery wholesome, it is sufficient if it impairs the enof any large articles, as casks of liquor, if joyment of life or property. 1 Burt. 333. The done with as little delay as possible, are law material increase in a neighbourhood of noi. ful, though if an unreasonable time were em- some smells is indictable. Peake Rep. 91. ployed in the operation, they would become If the prosecutor be particularly affected by nuisances. 3 Camp. 231, No length of time the nuisance, he will be entitled to costs un. will legalize the nuisance. 7 East, 199. 3 der 5 W. & M. c. 11. s. 3. 16 East, 194. Camp. 227. 6 East, 195. sed vid. Peake C. To this class of public nuisances may be N. P. 91. If the party who has been indicted added that of making great noises in the
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. I. 2, c. 9.
(r) 1 Hawk. P. C. 198. 225. (s) Ibid. 225.
streets in the night, by trumpets or otherwise, 6 T. R. 286, where it was held that tumbling 2 Stra. 704 ; exhibiting monsters, 2 Ch. Ca. was not a stage-entertainment within that 110; suffering mischievous animals, having Act,) and by 25 Geo. II. c. 36, all unlicensed notice of their propensity, to go loose, &c. places kept for such entertainments are to be Dyer, 25. Vet. 171. 2 Salk. 602. i Vent. deemed disorderly houses. 295 ; carrying about persons infected with (15) The 19 Geo. III. c. 21, was repealed contagious diseases. 4 M. & S. 73. 272. ante. by the 22 Geo. III. c. 47. which was repealed 162. But neither an old nor a new dovecote by 42 Geo. III. c. 52. s. 27. is a common nuisance. Hawk. b. I. c. 7. s. 8. By the 42 Geo. III. c. 119. s. 1 & 2. all lot.
(14) The keeping of bawdy. houses, gam- teries called little goes are declared to be pubing-houses, and disorderly houses of all de- lic nuisances, and if any one shall keep an scriptions, together with the unlawful pas- office or place to exercise or expose to be times there pursued, has been from time to played any such lottery, or any loitery whattime prohibited by various Acts of Parliament, ever not authorized by parliament, or shall (see them collected in Collyer's Criminal Sta- knowingly suffer it to be exercised or played tutes, Nuisance, 399, et seq.) imposing various at in his house, he shall forfeit 5001. The propunishments and penalties upon offenders: vision as to the offender being deemed a and, by the 3 Geo. IV. c. 114, such offenders rogue and vagabond, seems repealed by the are punishable by sentence of imprisonment 5 Geo. IV. c. 83. which contained a provision with hard labour, for any term not exceeding to that effect. the term for which the court before which they And by sec. 5 of the 42 Geo. III. c. 119. if are convicted may now imprison for such of any person shall promise to pay any money or fences, either in addition to or in lieu of any goods on any contingency relative to such Other punishment which might have been in- lottery, or publish any proposal respecting it, flicted on such offenders by any law in force he shall forseit 1001. Stale lotteries are now before the passing of that Act. The keeping abolished by statute 6 Geo. IV. of a cockpit is an indictable offence at com- (16) The constitutior. of New York pro. mon law, (as are the other offences above hibits lotteries, except such as were then aumentioned,) and a cockpit has been held to be thorized. (Art. 7. sect. 11.). a gaming-house within the 33 Hen. VIII. c. 9, (17) The offender may be indicted on the Ø 11. 1 Russell, 300. Bawdy-houses and statute or at common law. 4 T. R. 202. 1 gaming-houses are clearly nuisances in the eye Saund. 136. n. 4.
2 Burr. 863. of the law. i Russell, 299. Rex v. Higgin. And if any person shall make or sell any son, 2 Burr. 1232.
Rex v. Rogier, 2 D. and sqnibs, rockets, or fire-works, he shall forfeit, R. 431 ; 1 B. and C. 272. Playhouses are not upon conviction before a magistrate, 51. one in themselves nuisances, though by neglect or half to the informer, and the other half to the mismanagement they may be rendered so. 1 poor. And if any person shall throw or fire Haw. P. C. c. 32, 97. But by 10 Geo. II. c. ihem into any house, street, or highway, he 28, all places for the exhibition of stage-en- shall forfeit 20s. in like manner. 9 & 10 W tertainments must be licensed, (Rex v. Handy, 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 («).
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 (1) Kitch. of courts, 20.
(T) 3 Inst. 219. (u) Ibnd. 1 Hawk. P. C. 132.
(y) Valer. Maxim. l. 2, c. 6. (v) 6 Mod. 21.
(2) Nov. 80, c. 5 (w) I Hawk. P. C. 198. 200. (18) By 54 Geo. III. c. 152. so much of the Erecting powder-mills, or keeping powder 12 Geo. III. c. 61. s. 21. as enacts that no per magazines near a town, is a nuisance at com son shall carry in any land or water carriage, mon law. See 2 Burn J. 24 ed. 758, 2 Stra any other lading with gunpowder, is repealed. 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 (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 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 ihemselves 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. (d) Logetting in the fields, slide thrift or shove. (b) Sp. L. b. 7, c. 2 and 4.
groat, cloyish cayles, hall-bowl, and coyting
(c) 3 Inst. 199.
(19) This act, and all others relating to va- ces of the peace, B. 42; and see the preamble grants, &c. are now repealed by the 5 Geo. to 16 Car. II. c. 7. But a common player at IV. c. 83.
hazard, using false dice, is liable to be indict. (20) See I R. S. 632, as to vagrants in ed at common law, 2 Rol. Ab. 78. Bac. Ab. New-York.
Gaming. A.; and any persons cheating by (21) At common law, the playing at cards, means of cards or dice, might be fined or imdice, and other games of chance, merely for prisoned in proportion to the nature of the ofthe purposes of recreation, and without any fence. Bac. Ab. Gaming. A.; and see the 9 view to inordinate gain, is regarded as inno- Ann. c. 15. s. 6. cent. Bac. Ab. Gaming, A. Com. Dig. Justi