Sivut kuvina

particular, being intended for the lodging and receipt of trav- [168] elers, may be indicted, suppressed, and the inn-keepers fined, if they refuse to entertain a traveler without a very sufficient cause; for thus to frustrate the end of their institution is held to be disorderly behavior." Thus, too, the hospitable laws of

1 Hawk., P. C., 225.

with fine and imprisonment, in the discretion of the court; usually imprisonment in the case of married women. Hawk., b. 1, c. 74; Rep. T. Hardw., 278; vide ante. If a person be only a lodger, and make use of her room for disorderly purposes, she would be guilty of keeping a bawdy-house, as if she were the proprietor of the whole house. 2 Lord Raym., 1197; 1 Salk., 382. A wife, as well as her husband, may be indicted for keeping a disorderly house. 1 Salk., 384. The 25 Geo. II., c. 36, s. 2, provides that unlicensed places of public entertainment shall be considered as disorderly places, and that the person acting as master shall be deemed the keeper. And the same act, sect. 5, points out how constables may be compelled to prosecute for keeping bawdy and disorderly houses. See, also, the 58 Geo. III., c. 70, s. 7, which requires the overseers to prosecute. By the 3 Gen. IV., c. 114, keeping a bawdy or other disorderly house is punishable with hard labor and imprisonment, in addition to or in lieu of any other punishment. [See, also, the 2 & 3 Vict., c. 47, s. 42-49.]

There is no doubt that common gaming-houses are public nuisances, and that the keeper may be indicted at common law. Hawk., b. 1, c. 25, s. 6; 1 Russ., 323; 10 Mod., 336; and see Rex v. Rogier, 1 B. & C., 272; 2 D. & R., 431. By c. 5. Tumbling is not an entertainment the 58 Geo. III., c. 70, s. 8, the person of the stage within the 10 Geo. II., c. appearing or acting as master, or as hav- 28. 6 T. R., 286.-[CHITTY.] ing the care and management of any gaming-house, shall be deemed the keeper thereof, and liable as such. The 25 Geo. II., c. 36, s. 5, and 58 Geo. III.,

c. 70, s. 7, show in what manner con-
stables or overseers may be compelled
to prosecute. Independently of the 'com-
mon law, the 33 Hen. VIII., c. 9, s. 11,
prohibits the keeping any gaming-house
for profit, under a penalty of 40s. a day;
merely playing at an inn or tavern, where
the owner derives no gain from it, is not
within the act. Dalt., c. 46. By the
same act, sect. 12, haunting and using
such gaming-houses is prohibited under
a penalty of 6s. 8d.; and by 18 Geo. II.,
c. 34, no person shall keep any house or
place for playing, or permit any person
within such house to play at any pro-
hibited game, with cards or dice, under
the penalties of the 12 Geo. II., c. 28,
s. 1. As to gaming in public houses,
see 3 Geo. IV., c. 77, s. 9. By the 5
Geo. IV., c. 83, s. 4 (the Vagrant Act),
persons playing or betting in any open
or public place, at or with any table or
instrument of gaming, at any game or
pretended game of chance, may be treat-
ed as vagrants. By the 3 Geo. IV., c.
114, the offense of keeping a common
gaming-house may be punished with im-
prisonment and hard labor, in addition
to or in lieu of any other punishment.
[See, also, 2 & 3 Vict., c. 47, s. 48.]*

As to the licensing stage-players, see
the 6 & 7 Vict., c. 68. Players are not
included in the Vagrant Act, 5 Geo. IV.,
c. 83, which repealed the 17 Geo. II.,

(13) On this subject, see 6 T. R., 17; Bull., N. P., 73; 5 T. R., 273; 8 M. & W., 269.

* In New York, vagrants may be committed by a justice of the peace to the alms-house for a term not exceeding six months, and there kept at hard labor, unless notorious offenders; in which case, they are to be sent to the house of correction of the city or county, if there be one, and if there be none such, then to the common jail of the county for a term not exceeding sixty days, and there kept on bread and water only, if the justice so direct.-(1 R. S., 632, § 1, 2, 3.) So a justice, on complaint made, may cause to be arrested and brought before him a class of offenders known to our law as disorderly persons; such as keepers of bawdy-houses and prostitutes, keepers of wheels of fortune or other device for gaming, and gamblers, who, for the most part, support themselves by gaming; fortune-tellers, mountebanks, and the like, and require of them sureties for their good behavior for the space of one year, and, in default of sureties, to commit them to the common jail.-(1 R. S., 638, § 1, 2.) For a description of the classes deemed vagrants and disorderly persons beyond what is above given, see the statutes above referred to.

Norway punish in the severest degree such inn-keepers as refuse to furnish accommodations at a just and reasonable price. 4. By statute 10 & 11 W. III., c. 17, all lotteries 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 regFire-works. ulate the keepers of such lottery offices." 5. The making and selling of fire-works and squibs, or the 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." 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., Eaves-drop c. 61, under heavy penalties and forfeiture." 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," or are indictable at the sessions, and punishable by fine and finding sureties for their good behavior. 7. Lastly, a common scold, communis rixatrix (for our law-Latin confines it to the feminine gender), is a public nuisance to her neighborhood. For which offense she may be indicted, and, if convicted, shall 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.y




Common scolds.

Stiernh., De Jure Sueon., 1. 2, c. 9. u Kitch. of Courts, 20.

▾ Ibid.; 1 Hawk., P. C., 132.

(14) State lotteries are now suppressed altogether, by virtue of the stat. 4 Geo. IV., c. 60.*

(15) The offender may be indicted on the statute or at common law. 4 T. R., 202; 1 Sund., 136, n.; 4 Cowp., 650; 2 Burr., 863. And if any person shall make or sell any squibs, rockets, or fireworks, he shall forfeit, upon conviction before a magistrate, £5, 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 high

w 6 Mod., 21.

* 1 Hawk., P. C., 198, 200.
y 3 Inst., 219.

way, he shall forfeit 20s. in like manner. 9 & 10 Will. III., c. 7.-[CHITTY.] See, also, the 2 & 3 Vict., c. 47, s. 54.

(16) By the 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.

Erecting powder-mills, or keeping powder-magazines near a town, is a nuisance at common law. See 2 Burn, Just., 758; 2 Stra., 1167.-[CHITTI.]

In New York, lotteries are prohibited by law. They were forbidden by the Constitution of 1821; but the provision seems not to be incorporated in the Constitution of 1846.-(See post, p. 173, n. t.)

[ocr errors]


6. Idleness in any person whatsoever is also a high offense [169] against the public economy. In China, it is a maxim that if 6. Idleness; there be a man who does not work, or a woman that is idle in vagrants the empire, somebody must suffer cold or hunger, the produce derly per of the lands not being more than sufficient, with culture, to sons. 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,z 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; 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 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 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 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 harbored [170] any stranger for more than two nights was answerable to the public for any offense that such his inmate might commit.b1

Valer. Maxim., 1. 2, c. 6. a Nov., 80, c. 5.

(17) This act and all others relating to vagrants, &c., are now repealed by the 5 Geo. IV., c. 83, which, on account of its importance, it is thought expedient to abstract. By the 3d section,

Idle and disorderly persons are, 1. Any person being able wholly or in part to maintain himself or family by any means, who refuses or neglects so to do, whereby he or his family, whom he may be bound to maintain, become chargeable to any parish, &c. 2. Any person reVOL. IV.-M

b LL. Edw., c. 27; Bracton, 1. 3, tr. 2, c. 10, § 2.

turning to and becoming chargeable in
any parish, &c., from whence he shall
have been removed by order of two
justices of the peace, unless he produce
a certificate of the church-wardens and
overseers of the poor of some other par-
ish, &c., thereby acknowledging him to
be settled in such other parish, &c. 3.
Petty chapmen or peddlers wandering
abroad and trading without being duly
licensed or otherwise authorized by law.
4. Common prostitutes, wandering in


7. Luxury, extravagance, &c.

7. Under the head of public economy may also be properly ranked all sumptuary laws against luxury, and extravagant ex

the public streets or public highways, or in any public place of resort, and behaving in a riotous or indecent manner. 5. Persons wandering abroad, or placing themselves in any public place, street, highway, court, or passage, to beg or gather alms, or causing, or procuring or encouraging, any child so to do.

These offenders are by the same act punishable by a single justice, with one month's imprisonment and hard labor.

Rogues and vagabonds are, by sect. 4: 1. Persons committing any of the of fenses before mentioned, after having been convicted as idle and disorderly persons. 2. Persons pretending or professing to tell fortunes, or using any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose on any of his majesty's subjects. 3. Persons wandering abroad and lodging in any barn or out-house, or in any deserted or unoccupied building, or in the open air, or under a tent, or in any cart or wagon, not having any visible means of subsistence, and not giving a good account of themselves. 4. Persons willfully exposing to view in any street, road, highway, or public place any obscene print, picture, or other indecent exhibition. 5. Persons willfully, openly, lewdly, and obscenely exposing their persons in any street, road, or public highway, or in the view thereof, or in any place of public resort, with intent to insult any female. 6. Persons wandering abroad and endeavoring, by exposure of wounds or deformities, to obtain or gather alms. 7. Persons going about as gatherers or collectors of alms, or endeavoring to procure charitable contributions of any nature or kind, under any false or fraudulent pretense. 8. Persons running away and leaving their wives or children chargeable, or whereby they shall become chargeable, to any parish, &c. 9. Persons playing or betting in any street, road, highway, or other open and public place, at or with any table or instrument of gaming, at any game or pretended game of chance. 10. Persons having in their custody any picklock key, crow-jack, bit, or other implement, with intent feloniously to break into any dwelling-house, ware-house, coachhouse, stable, or out-building, or being armed with any gun, pistol, hanger, cutlass, bludgeon, or other offensive weapon; or having upon them any instrument, with intent to commit any felonious act. 11. Persons being found in or upon any dwelling-house, ware-house,

coach-house, stable, or out-house, or in any inclosed yard, garden, or area, for any unlawful purpose. 12. Suspected persons, or reputed thieves, frequenting any river, canal, or navigable stream, dock, or basin, or any quay, wharf, or ware-house near or adjoining thereto, or any street, highway, or avenue leading thereto, or any place of public resort, or any avenue leading thereto, or any street, highway, or place adjacent, with intent to commit felony. 13. And every person apprehended as an idle. and disorderly person, and violently resisting any constable or other peace of ficer so apprehending him, and being subsequently convicted of the offense for which he shall have been so apprehended.

These offenders are, by the same act, punishable by a single magistrate, with three calendar months' imprisonment and hard labor.

Incorrigible rogues are, by sect. 5: 1. Persons breaking or escaping out of any place of legal confinement before the expiration of the term for which they shall have been committed, or ordered to be confined by virtue of the act. 2. Persons committing any offense against the act which shall subject them to be dealt with as rogues and vagabonds, such persons having been at some former time adjudged so to be, and duly convicted thereof. 3. And every person apprehended as a rogue and vagabond, and violently resisting any constable or other peace officer so apprehending him, and being subsequently convicted of the offense for which he shall have been so apprehended.

These offenders are to be committed to the next sessions, and kept to hard labor in the interim; and the sessions may further punish them by imprisonment with hard labor for one year, together with whipping, if not females.

By the 6th section of the act, any person may apprehend the offenders against it; and a penalty is enforced on constables neglecting their duty; see, also, sect. 11. By the 7th sect., justices may issue their warrants to apprehend suspected offenders. By the 8th sect., all vagrants are to be searched, and their trunks and bundles, &c., to be inspected; and by sect. 13, lodging-houses, &c., suspected to conceal vagrants, may be searched, and suspected persons brought before a justice. By the 9th sect., justices may bind persons by recognizance to prosecute vagrants at sessions, and a power

penses 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 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 Edw. 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 offense of [171] gaming, which is generally introduced to supply or retrieve 8. Gaming the 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 offense 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 honor and virtue, and too often hath ended in self-murder.18 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 tennis, tables, cards, dice, bowls, and other unlawful diversions there specified, unless in the time of

Sp. L., b. 7, c. 2 and 4.

d 3 Inst., 199.


Logetting in the fields, slide-thrift,

is given to sessions to order payment of expenses to prosecutors and witnesses, &c.; and see sect. 21.-[CHITTY.]

(18) At common law, the playing at cards, dice, or other games of chance, merely for the purpose of recreation, and without any view to inordinate gain, is regarded as innocent. Bac. Ab., Gaming, A.; Com. Dig., Justices of the Peace,

or shove-groat, cloysh-cayls, half-bowl,
and coyting.

B. 42; and see the preamble to 16 Car.
II., c. 7. But a common player at haz-
ard, using false dice, is liable to be in-
dicted 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 pro-
portion to the nature of the offense. Bac.
Ab., Gamimg, A.; and see the 9 Ann., c.
15, s. 6.—[CHITTY.]

« EdellinenJatka »