Sivut kuvina
[ocr errors]

giving every man a separate right of action, for what damnifies him in com-
mon only with the rest of his fellow-subjects. Of this nature are, 1. Annoy-
ances in highways, bridges, and public rivers, (8) by rendering the same inconve
nient 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,
*punishable by public prosecution, and subject to fine according to the
quantity of the misdemeanor: and particularly the keeping of hogs in

(0) 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. r. 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 26 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, 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, 463. 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 public 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. 846; Bac. Abr. t. Nuisance. And it inay 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 dop 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 legaliz the nuisance. 7 East, 199; 3 Camp. 227; 6 East, 195. If the party who has been indicted fo a nuisance continue the same, he is again indictable for such continuance. 8 T. R. 142. Inde pendently 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; Commonwealth 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. (7) (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

(7) Salk. 460.
(f) Stiernh, de jure
(w)'6 Mod. 21.

(r) 1 Hawk. P. C. 198, 225.
Sueon.l. 2, c. 9.

(s) Ibid. 225.
(u) Kitch. of courts, 20.
(x) 1 Hawk. P C. 198, 200.
(y) 3 Inst. 219.

(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, c. 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 [*170] 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 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 (b) LL. Edw. c. 27. Bracton, l. 3, tr. 2, c. 10, í 2.

(z) Valer. Maxim. l. 2, c. 6. (c) Sp. L. b. 7, cc. 2 and 4.

(a) Nov. 80, c. 5.
(d) 3 Inst. 199.

(16) These offences are now punishable under statute 5 Geo. IV, c. 83, amended by 1 and 2 Vic. c. 38.


every principle of honour and virtue, and too often hath ended in self-mur171 der. (17) 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, (e) unless in the time of Christmas, under pecuniary pains and imprisonment. And the same law, and also the statute 30 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 consideration is made a sacrifice, and which we seem to have inherited from our ancestors the ancient Germans; whom Tacitus (ƒ) describes to have been bewitched with a spirit of play to a most exorbitant degree." They addict themselves," says he, "to dice (which is wonderful) when sober, and as a serious employment: with such a mad desire of winning or losing, that when stript of every thing else, they will stake at last their liberty and their very selves. The loser goes into a voluntary slavery, and though younger and stronger than his antagonist, suffers himself to be bound and sold. And this perseverance in so bad a cause they call the point of honour: *ea est in re parva pervicacia, ipsi fidem vocant." One would almost be [*172] tempted to think Tacitus was describing a modern Englishman. When men are thus intoxicated with so frantic a spirit, laws will be of little avail; because the same false sense of honour that prompts a man to sacrifice himself, will deter him from appealing to the magistrate. Yet it is proper that laws should be, and be known publicly, that gentlemen may consider what penalties they wilfully incur, and what a confidence they repose in sharpers; who, if successful in play, are certain to be paid with honour, or, if unsuccessful, have it in their power to be still greater gainers by informing. For by statute 16 Car. II, c. 7, if any person by playing or betting shall lose more than 1007. at one time, he shall not be compellable to pay the same; and the winner shall forfeit treble the value, one moiety to the king, the other to the informer. The statute 9 Ann. c. 14, enacts, that all bonds and other securities, given for money won at play, or money lent at the time to play withal, shall be utterly void; that all mortgages and incumbrances of lands, made upon the same consideration, shall be and enure to the use of the heir of the mortgagor; that, if any person at any time or sitting lose 107. at play, he must sue the winner, and recover it back by action of debt at law; and in case the loser does not, any other person may sue the winner for treble the sum so lost; (18) and the plaintiff may by bill in equity examine the defendant himself upon oath; and that in any of these suits no privilege of parliament shall be allowed. The statute further enacts, that if any person by cheating at play shall win any money or valuable thing, or shall at any one time or sitting win more than 107., he may be indicted thereupon, and shall forfeit five times the value to any person who will sue for it; and (in case of cheating) shall be deemed infamous, and suffer such corporal punishment as in case of wilful perjury. By several statutes of the reign of King George

(e) Logetting in the fields, slide thrift or shove groat, cloyish cayles, half-bowl and coyting. (f) De Mor. Germ. c. 21.

(17) [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. Justices 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 person cheating by means of cards or dico 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. 6.1

(18) The penalties for winning or losing to a certain amount are repealed by 8 and 9 Vic. c. 109, which makes new provisions. See also 14 and 15 Vic. c. 100; 16 and 17 Vic. c. 119; 17 and 18 Vic. c. 38; and 22 and 23 Vic. c. 17.

VOL. II.-51.

II, (g) all private lotteries by tickets, cards or dice (and particularly the games of faro, basset, ace of hearts, hazard, passage, rolly polly, and all other games with dice except backgammon) are prohibited under a penalty of 2001. for him that shall erect such lotteries, and 50l. a time for the players. Public *lot[*173] teries, unless by authority of parliament, and all manner of ingenious

devices, under the denomination of sales or otherwise, which in the end are equivalent to lotteries, were before prohibited by a great variety of statutes (h) under heavy pecuniary penalties. But particular descriptions will ever be lame and deficient, unless all games of mere chance are at once prohibited: the inventions of sharpers being swifter than the punishment of the law, which only hunts them from one device to another. The statute 13 Geo. II, c. 19, to prevent the multiplicity of horse races, another fund of gaming, directs that no plates or matches under 50%. value shall be run, upon penalty of 2007. to be paid by the owner of each horse running, and 1007. by such as advertise the plate. By statute 18 Geo. II, c. 34, the statute 9 Ann. is farther enforced, and some deficiencies supplied; the forfeitures of that act may now be recovered in a court of equity; and, moreover, if any man be convicted upon information or indictment of winning or losing at play, or by betting at one time 10%., or 201. within twenty-four hours. he shall be fined five times the sum for the benefit of the poor of the parish. Thus careful has the legislature been to prevent this destructive vice; which may show that our laws against gaming are not so deficient, as ourselves and our magistrates in putting those laws in execution. (19)

9. Lastly, there is another offence, constituted by a variety of acts of parlia ment; which are so numerous and so confused, and the crime itself of so questionablea nature, that I shall not detain the reader with many observations thereupen. And yet it is an offence which the sportsmen of England seem to think of the highest importance; and a matter, perhaps the only one, of general and national concern: associations having been formed all over the kingdom to prevent its destructive progress. I mean the offence of destroying such beasts and fowls as are ranked under the denominations of game; which, we may remember, was formerly observed (i) (upon the old principles of the forest law), *to be a trespass and offence in all persons alike, who have not author[*174] ity from the crown to kill game (which is royal property), by the grant either of a free warren, or at least a manor of their own. But the laws, called the game laws, have also inflicted additional punishments (chiefly pecuniary) on persons guilty of this general offence, unless they be people of such rank or fortune as is therein particularly specified. All persons, therefore, of what property or distinction soever, that kill game out of their own territories, or even upon their own estates, without the king's license, expressed by the grant of a franchise, are guilty of the first original offence, of encroaching on the royal prerogative. And those indigent persons who do so, without having such rank or fortune as is generally called a qualification, are guilty not only of the

(g) 12 Geo. II, c. 28. 13 Geo. II, c. 19. 18 Geo. II, c. 34.

(h) 10 and 11 Wm. III, c. 17. 9 Ann. c. 6, § 53. 10 Aun. c. 26, § 109. 8 Geo. I, c. 2, fi 36, 37. 9 Geo. I, c. 19, § 4. 5. 6 Geo. II, c. 35. §§ 29, 30.

(i) See book II, page 417, &c.

(19) The enactment of 13 Geo. II, c. 19, referred to in the text, was repealed by 3 and 4 Vic. c. 5, and the penalties under statute 9 Ann. were repealed by 8 and 9 Vic. c. 109, s. 15. Sec tion 18 of the same statute made all wagers and wagering contracts null and void, and pro. hibited suit to recover the stakes. That wagers in general were legal at the common law, see Good v. Elliot, 3 T. R. 693; Bland v. Collett, 4 Campb. 37; Marryat v. Broderick, 2 M. and w 369. But if the subject-matter of the wager is such as to make it inconsistent with public policy, either party may demand his stakes and recover from the stakeholder if he refuse to pay back, even though the wager is determined (Cotton v. Thurland, 5 T. R. 405; Lacaussade . White, 7 T. R. 535), unless the stakeholder has actually paid it over to the winner before notice not to do so. Howson v. Hancock, 8 T. R. 575; Perkins v. Eaton, 3 N. H. 152; Livingston v. Wootan, 1 N. and McC. 173. In the United States wagers are generally made illegal by statute.

« EdellinenJatka »