riage, though in the three first it is void, 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 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. 4. Where the first marriage is declared absolutely void by any such sentence, and the party 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, [*165] which the second marriage very clearly amounts to. But *if at the age of consent the parties had agreed to the marriage, 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. (5) 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 prétending so to be, and abusing the name of that honorable 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 (5) [The statute 24 and 25 Vic. c. 100, s. 57, enacts that whosoever, 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, shall be guilty of felony; and any such offender may be tried in any place in England where he shall be apprehended or be in custody, in the same manner in all respects as if the offence had been actually committed there, and may be punished by penal servitude for not more than seven years, nor less than five years, or by imprisonment for any term not exceeding two years, with or without hard labor. But this enactment does not extend (1) to any second marriage contracted elsewhere than in England or Ireland by any other than a subject of her majesty; or (2) 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: see Reg v. Cullen, 9 C. and P. 681; Reg. v. Curgerwen, 1 L. R. C. C. 1; or (3) to any person who, at the time of such second marriage, shall have been divorced from the bond of such first marriage; or (4) to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction.] Of the previous statute, 9 Geo. IV, c. 31, which was superseded by this, Mr. Chitty says that three important improvements were introduced by it. First, the offence is now punishable wherever committed; formerly it was not 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 Truman'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 license: 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 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." and he abides in the same for one year; unless licensed to depart by his employer, who in such case shall forfeit ten pounds. (6) 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 impostors and jugglers, who were 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 of 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 to have migrated from the country of *Zigi, which nearly answers to the modern Circassia. In the compass of a few years they gained [*166] 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 formidable 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 described by statute 22 Hen. VIII, c. 10, as "outlandish people, calling themselves Egyptians, using no craft nor feat of merchandise, 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 linguæ. And afterwards it is enacted by statutes 1 and 2 P. and M. c. 4, and 5 Eliz. c. 20, that if any such persons shall be imported into this kingdom, the importer shall forfeit 407. And if the Egyptians themselves remain one month in this kingdom, or if any person being fourteen years old (whether natural-born, 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 assizes no less than thirteen gypsies were 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 this, of carrying these laws into practice. (7) [*167] 5. To descend next to offences whose punishment is short of death. Common nuisances are a species of offences against the public order and economical 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 required. (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 (7) Statute 5 Eliz. c. 20, is repealed, and gypsies are now only punishable under the vagrant acts. 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, bridges, and public rivers, (8) 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 amend them, and in some cases fined. And a presentment thereof by a judge of assize, &c., or a justice of the peace, shall be in all respects equivalent to an indictment. (0) (9) Where there is a house erected, or an inclosure made, upon any part of the king's demesnes, or of an highway, or common street, or public water, or such like public things, it is properly called a purpresture, (p) (10) 2. All those kind of nuisances (such as offensive trades and manufactures), which when injurious to a private man are actionable, are, when detrimental to the public, [*168] *punishable by public prosecution, and subject to fine according to the quantity of the misdemeanor: and particularly the keeping of hogs in (o) Stat. 7 Geo. III, c. 42. (p) Co. Litt. 277, from the French pourpris, an enclosure. (8) [See Mayor of Colchester v. Brooke, 7 Q. B. 377; Reg. v. Betts, 16 Q. B. 102; Reg. v. Charlesworth, id. 1012.] (9) By the highway act. 5 and 6 Wm. IV, c. 50, the proceeding by presentment for the nonrepair of highways is abolished, and a summary mode of proceeding before magistrates substituted. See also statutes 25 and 23 Vic. c. 61. (10) [With respect to nuisances in general to highways, &c., by actual obstruction, it is to be observed, that every unauthorized obstruction of the highway, to the annoyance of the king's subjects, is an indictable offence. 3 Camp. 227. Thus if a wagoner, carrying on a very extensive concern, constantly suffers wagons to remain on the side of the highway on which his premises are situated, an unreasonable time, he is guilty of a nuisance. 6 East, 427; 2 Smith, 424. And if stage coaches regularly stand in a public street in London, though for the purpose of accommodating passengers, so as to obstruct the regular track of carriages, the proprietor may be indicted. 3 Camp. 224. So a timber merchant occasionally cutting logs of wood in the street, which he could not otherwise convey into his premises, will not be excused by the necessity which, in choosing the situation, he himself created. 3 Camp. 230. It is even said that "if coaches on 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, 453. Nor is it necessary, in order to fix the responsibility on the defendant, to show that he immediately obstructed the public way, or even intended to do so: it seems to be sufficient if the inconvenience result, as immediate consequence of any public exhibition or act; for the erection of a booth to display rope-dancing, and other attractive spectacles, near a publie street in London, which draws together a concourse of people, is a nuisance liable to be punished and abated. 1 Ventr. 169; 1 Mod. 76; 2 Keb. 845; Bac. Abr. t. Nuisance. And it may be collected that a mere transitory obstruction, which must necessarily occur, is excusable, if all reasonable promptness be exerted. So that the erection of a scaffolding to repair a house, the unloading a cart or wagon, 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. 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 as much of it as is too high should be pulled down. 9 Rep. 53; God. 221; 2 Stra. 686. With respect to nuisances to water courses by actual obstruction, any diversion of a public river, whereby the current is weakened and rendered incapable of carrying vessels of the same burden as it could before is a common nuisance. Hawk. b. 1. 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.] That a nuisance is not legalized by length of time, see Mills v. Hall, 9 Wend. 315; Common. wealth v. Upton, 6 Gray, 476; People v. Cunningham, 1 Denio, 524; Douglass v. State, 4 Wis. 392. any city or market town is indictable as a public nuisance. (q) (11) All disorderly 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) 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 and 11 Wm. III, c. 17, all lotterries are declared to be public nuisances, and all grants, patents, or licenses 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. (12) 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 and 10 Wm. III, c. 7, and therefore is punishable by fine. (13) 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 place or vehicle; which is prohibited by statute 12 Geo. III, c. 61, under heavy penalties and forfeiture. (14) 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: (u) or are indictable at the sessions, and punishable by fine and finding sureties for their good behaviour. (v) 7. Lastly, a common scold, communis rixatrix (for our law-latin confines it to the feminine gender), is a public nuisance to her neighbourhood. For which offence she may be indicted: (w) (15) *and if convicted, shall (x) be sentenced to be placed in a certain engine of cor[*169] rection 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. (y) 6. Idleness in any person whatsoever is also a high offence against the public economy. 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 (q) Salk. 460. (r) 1 Hawk. P. C. 198, 225. (8) Ibid. 225. (v) Ibid. 1 Hawk. P. C. 132. (11) [It is not essential in order to constitute this a nuisance, that the smell or other incon venience 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 neighborhood of noisome smells is indictable. Peake Rep. 91. 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; 2 Salk. 662; 1 Vent. 295; carrying about persons infected with contagious diseases. 4 M. and S. 73, 272, ante, 162. But neither an old nor a new dovecote is a common nuisance. Hawk. b. 1, c. 7, s. 8.] Nuisances by offensive trades and manufactures are now punished under "The Sanitary Act, 1866," 29 and 30 Vic. c. 90; St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642. And on the same subject reference may also be had to Commonwealth v. Brown, 13 Met. 365; Smith v. Commonwealth, 6 B. Monr. 22; People v. Cunningham, 1 Denio, 524. (12) Since repealed. And statute 6 Geo. IV, e 60, entirely abolishes state lotteries. (13) [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.] (14) See statute 23 and 24 Vic. c. 139, and the acts amendatory thereof. See also Williams v. East India Co., 3 East, 192, 201. (15) James v. Commonwealth, 12 S. and R. 220; U. S. v. Royall, 3 Cranch C. C. 620. 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, (z) that the Athenians, knowing that 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: (a) 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 ne whither they go," or such as are more particuluarly described by statute 17 Geo. II, c. 5, and divided into three classes, idle and disorderly perons, 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 six months; and incorrigible rogues with the like disci[*170] pline 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 harboring 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 harboured any stranger for more than two nights, was answerable to the public for any offence that such his inmate might commit. (b) (16) 7. Under the head of public economy may also be properly ranked all sumptuary laws against luxury, and extravagant expense 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, (c) 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; (d) 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 Edward 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 expenses occasioned by the [ *171] 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 (z) Valer. Maxim. 7. 2, c. 6. (c) Sp. L. b. 7, cc. 2 and 4. (a) Nov. 80. c. 5. (b) LL. Edw. c. 27. Bracton, l. 3, tr. 2, c. 10, § 2. (16) These offences are now punishable under statute 5 Geo. IV, c. 83, amended by 1 and 2 Vic. c. 38. |