Sivut kuvina

in many cases severely punished by particular statutes; and in general by statute 2 and 3 Edw. VI., c. 15, with the forfeiture of 107., or twenty-one days, imprisonment with an allowance of only bread and water, for the first offence; 201. or the pillory, for the second; and *401. for the third, or else the pillory, loss of one ear and perpetual infamy. In the same manner by a [*160] constitution of the Emperor Zeno,(r) all monopolies and combinations to keep up the price of merchandise, 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.(10)

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 1007., 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 500l. for each artificer contracted with to be sent abroad, and imprisonment for twelve months: and for the second 1,000l., and are liable to two years' imprisonment: and 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 (except woolcards to North America), (t)he forfeits the same and 2007., and the captain of the ship (having knowledge thereof) 1007.; and if any captain of a king's ship, or officer of the customs, knowingly suffers such exportation, he forfeits 1007. 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 assizes, forfeit such tools, and also 2007.(11)

(r) Cod. 4, 59, 1.

(8) See book I, page 427.

(t) Stat. 15 Geo. III, c. 5.

pelling journeymen to leave their employment, or to return work unfinished, preventing them from hiring themselves, compelling them to belong to clubs, &c., or to pay fines, or forcing manufacturers to alter their mode of carrying on their business, are punishable with imprisonment, with or without hard labor, for three months. The remaining clauses provide for tho mode of conviction of offenders before justices of the peace. For the form and requisites of convictions for these offences under former acts of parliament, see Rex v. Nield, 6 East, 417; Rex v. Ridgway, 1 D. and R. 123; 5 B. and A. 527; Paley on Convictions, 2d ed., by Dowling, 99 et seq. By 9 Geo. IV, c. 31, s. 25, assaults in pursuance of any conspiracy to raise the rate of wages, and section 26, assaults upon certain workmen to prevent them from working at their trades, are punishable with imprisonment and hard labor.]

See amendatory statutes, 22 Vic. c. 34, and 24 and 25 Vic. c. 100.

(10) The part of this statute here referred to was repealed by statute 54 Geo. III, c. 96, s. 1. (11) All statutes prohibiting artificers from going abroad are repealed by statute 5 Geo. IV, c 97 and 6 and 7 Vic. c. 84.

VOL. II.-50.




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 Providence, 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 his town or vill, to keep his house, and shall venture to disobey it, he may be enforced, by the watchman 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. [*162] II, c. 6 (explained and amended by 29 Geo. II, c. 8), the method 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. A second, but much inferior species of offence against public health is the selling of unwholesome provisions.(2) 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 Cai. II, c. 25, s. 11, any brewing or adulteration of wine is punished with the forfeiture of 1007. if done by the wholesale merchant; and 407. if done by the vintner or retail trader. These are all the offences which may properly be said to respect the public health. (3)

V. The last species of offences which especially affect the commonwealth, are those against the public police or economy. By the public police and economy

(1) Other statutes imposing lighter punishments now take the place of those mentioned in the


Vaccination of children is made compulsory by statute 16 and 17 Vic. c. 100, $ 9, under a penalty of 20s.

(2) [It is a misdemeanor at common law to give any person injurious food to eat, whether the offender be excited by malice, or a desire of gain; nor is it necessary he should be a public contractor, or the injury done to the public service, to render him criminally liable. 2 East, P. C. 822; 6 East, 133 to 141. If a baker direct his servant to make bread containing a specific quantity of alum, which when mixed with the other ingredients is innoxious, but in the execu cution of these orders, the agent mixes up the drug in so unskilful a way that the bread becomes unwholesome, the master will be liable to be indicted. 3 M. and S. 10; 4 Camp. 10. But an indictraent will not lie against a miller for receiving good barley to grind at hie mill, and delivering a mixture of oat and barley which is musty and unwholesome. 4 M. and S. 214.] (3) See also the statutes 1 W. and M., st. 1, c. 34, s. 20; 3 Geo. IV, c. 106; 6 and Wm. IV, c. 37; and 7 and 8 Vic. c. 24.

I mean the due regulation and domestic order of the kingdom; whereby the individuals of the state, like members of a well-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,

*1. The offence of clandestine marriages: for by the statute 26 Geo. II, c. 23, 1. To solemnize marriage in any other place besides a church, [*163] or public chapel wherein banns have been usually published, except by license from the archbishop of Canterbury; and, 2. To solemnize marriage in such church or chapel without due publication of banns, or license 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 1007. 3. To make a false entry in a marriage register; to alter it when made; to forge, or counterfeit such entry, or a marriage license; 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. (4)

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 plurality of wives at once. (b) Such second marriage, living the former husband or wife, is simply void, and a mere nullity, by the ecclesiastical law of England: and yet the legislature has thought it just to make it felony, by reason [*164] of its being so great a violation of the public economy and decency of a wellordered 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 exception to five cases, in which such second mar

(a) 6 and 7 Wm. III. c. 6. 7 and 8 Wm. III, c. 35. 10 Ann. c. 19, § 176.

(b) 3 Inst. 88. Bigamy, according to the canonists, consisted in marrying two virgins successively, one ter the death of the other, or once marrying a widow. Such were esteemed incapable of orders, &c.; nd by a canon of the council of Lyons. 4. D. 1274. held under Pope Gregory X. were omni privilegio cleri cali nudati, et coercioni fori secularis addicti (6 Decretal, 1, 12). This canon was adopted and explained in England. by statute 4 Edw. I, st. 3. c. 5. and bigamy thereupon became no uncommon counter-plea to the claim of the benefit of clergy. M. 40 Edw. III, 42; M. 11 Hen. IV, 11. 48. M. 13 Hen. IV, 6; Staundf. P. C. 131. The cognizance of the plea of bigamy was declared by statute 18 Edw. III, st. 3. c. 2, to belong to the court christian, like that of bastardy. But by statute 1 Edw. VI, c. 12, § 16, bigamy was declared to be no longer an impediment to the claim of clergy. See Dal. 21; Dyer, 201. (c) Du mor. Germ. 18. (d) Stiernh, de jure Sueon. l. 3, c. 2.

(e) 1 Hal. P. C. 693.

(4) The law on this subject is much modified by subsequent statutes. See statutes 4 Geo. IV, c. 76; 6 and 7 Wm. IV, c. 85; 7 Wm. IV and 1 Vic. c. 22; 3 and 4 Vic. c. 72; and 24 and 25 Vic. c. 98. Marriages solemnized knowingly except in the manner provided are void, and the persons officiating are guilty of felony.

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, which the second marriage very clearly amounts to. But *if at the age

[*165] 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 pretending 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

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(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 mar. riage 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. Kex 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)


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

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(7) Statute 5 Eliz. c. 20, is repealed, and gypsies are now only punishable under the vagrant


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