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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 of its being so great a violation of the public economy and decency of a well-ordered 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 north[*164 ern 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 antient 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 marriage, 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 di vorce (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 parties 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 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.
(*) 3 Inst. 88. Bigamy, according to the canonists, consisted in marrying two virgins successively, one after the death of the other, or once marrying a widow. Such were esteemed incapable of orders, &c., and, by a canon of the Council of Lyons, A.D. 1274, held under Pope Gregory X., were omni privilegio clericali 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. 134. The
(d) Stiernhook, de jure Sueon. 1. 3, c. 2.
()3 Inst. 89. Kelw. 27. 1 Hal. P. C. 694.
By 9 Geo. IV. c. 31, 22, it is enacted, "That if any person 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, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and, being convicted thereof, shall be liable to be transported beyond the seas for the term of seven years, or to be imprisoned, with or without hard labour, in the common gaol, or house of correction, for any term not exceeding two years; and any such offence may be dealt with, inquired of, tried, determined, and punished in the county where the offender shall be apprehended or be in custody, as if the offence had been actually committed in that county: provided always that nothing herein contained shall extend to any second marriage contracted out of England by any other than a subject of his majesty, or 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, or shall extend to any person who at the time of such second marriage shall have been divorced from the bond of the first marriage, or to any person whose former marriage shall have been declared void by the sentence of any cour of competent jurisdiction."
Three important improvements in the law relating to bigamy are introduced by this enactment. 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
*165] 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 honourable 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 statutebook, 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, and he abides in the same for one year, unless licensed to depart by his employer, who in such case shall forfeit ten pounds."
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 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,
*166] 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,
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 mensâ 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 vs. Miller, 4 Burr. 2059; but see Trueman'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 vs. Allison, R. & 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 vs. Lolley, R. & R. C. C. 237, cited in Tovey vs. Lindsay, 1 Dow. 117. The burden of proving the first marriage to have been legal lies upon the prosecutor. Rex vs. James, R. & R. C. C. 17. Rex vs. Mor ton, id. 19. Rex vs. Butler, id. 61. The act extends to all dissenters except Jews and Quakers. Upon the subject of bigamy generally, see 1 Hawk. P. C. c. 32. Î East, P. C. c. 12. 1 Russell, c. 23. Butler's Co. Litt. 79, b. n. 1. 3 Stark. Ev. Polygamy.-CHITTY.
But this act of Eliz. is now repealed by the 52 Geo. III. c. 31. By the 43 Geo. III. c. 61, soldiers, sailors, mariners, and the wives of soldiers mentioned therein, are relieved against the penalties of the vagrant acts. See also the 58 Geo. III. c. 92, and the annual mutiny act; and see the vagrant act, post, 169.-CHITTY.
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 statute 1 & 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 401. 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() 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
5. To descend next to offences whose punishment is short of death. nuisances are a species of offence 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 requires.(m) The nature of common nuisances and their distinction from private nuisances were explained in the *preceding volume,(n) when we con[*167 sidered 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 rest of his fellow-subjects. Of this nature are, 1. Annoyances in highways, 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 assize, &c., or a justice of the peace, shall be in all respects equivalent to an indictment.(0) Where there is a house erected or an enclosure made upon any part of the king's demesnes, or of a highway or common street, or public water, or such like public things, it is properly called a purpresture.(p) 2. All those kinds of nuisances (such as of
() 1 Hal. P. C. 671.
()1 Hawk. P. C. 197.
() Stat. 7 Geo. III. c. 42.
(P) Co. Litt. 277; from the French pourpris, an enclosure.
This act of 5 Eliz. c. 20 is repealed by the 23 Geo. III. c. 51; and now, by the 1 Geo. IV. c. 116, so much of the 1 & 2 P. and M. c. 4 as inflicts capital punishment is repealed. Gypsies are now only punishable under the vagrant act. See post, 169.-CHITTY.
Railways have, by stat. 3 & 4 Vict. c. 97, and 5 & 6 Vict. c. 55, been very properly placed under the control and regulation of the state: a penalty is incurred for opening a railway without notice to the board of trade, and for obstructing the government inspector.-STEWART.
10 The general highway act is now the 13 Geo. III. c. 78, which repeals the 7 Geo. III. c. 42. The 3 Geo. IV. c. 126 is the general turnpike act.
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 situate 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
fensive 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 misdemeanour; and particularly the keeping of hogs in any city or market town is indictable as a public nuisance.(q)" All disorderly inns or ale-houses, bawdy-houses, gaminghouses, 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
cause and permit such coaches so to wait are guilty of a nuisance." 3 Camp. 226; and see 1 Russell, 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 an 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. 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; sed vid. Peake C. N. P. 91. 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 so 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.
With respect to the punishment for nuisances to highways, &c., the offenders may be fined and imprisoned. Hawk. b. 1, c. 75, s. 14. But no confinement or corporal punishment is now inflicted. The object of the prosecution is to remove the nuisance, and to that end alone the sentence is in general directed. It is therefore usual, when the nuisance is stated on the proceedings as continuing, in addition to a fine, to order the defendant at his own costs to abate the nuisance. 2 Stra. 686. By the 1 & 2 Geo. IV. c. 41, for facilitating the abatement, &c. of nuisances from furnaces in steam-engines, costs may be awarded to the prosecutor, and an order may be made for abating the nuisance; but the act does not extend to furnaces for mines.-CHITTY.
11 It is not essential, in order to constitute this a nuisance, that the smell, or other inconvenience 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 neighbourhood of noisome smells is indictable. Peake, Rep. 91. If the prosecutor be particularly affected by the nuisance, he will be entitled to costs under 5 W. and M. c. 11, s. 3. 16 East, 194.
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. Vet. 171. 2 Salk. 662. 1 Vent. 295;) carrying about persons infected with contagious diseases. 4 M. & S. 73, 272, ante, 162. But neither an old nor a new dovecote is a common nuisance. Hawk. b. 1, c. 7, s. 8.--CHITTY.
12 The keeping of bawdy-houses, gaming-houses, and disorderly houses of all descrip tions, together with the unlawful pastimes there pursued, has been from time to time prohibited by various acts of parliament, (see them collected in Collyer's Criminal Statutes, Nuisance, 399, et seq.,) imposing various punishments and penalties upon offenders; and, by the 3 Geo. IV. c. 114, such offenders are punishable by sentence of imprison
travellers, may be indicted, suppressed, and the *inn-keepers find, if they refuse to entertain a traveller without a very sufficient cause; [*169 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 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.13 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." 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.15 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) and, if convicted, shall(x) be sentenced to be placed in a certain engine of correction called the trebucket, castigatory, or cucking-stool, which, in
() 1 Hawk. P. C. 225.
(Stiernhook, de jure Sucon. 1. 2, c. 9.
(*) Kitch. of Courts, 20.
() Ibid. 1 Hawk. P. C. 132.
(*) 1 Hawk. P. C. 198, 200.
ment with hard labour for any term not exceeding the term for which the court before which they are convicted may now imprison for such offences, either in addition to or in lieu of any other punishment which might have been inflicted on such offenders by any law in force before the passing of that act. The keeping of a cock-pit is an indictable offence at common law, (as are the other offences above mentioned;) and a cock-pit has been held to be a gaming-house within the 33 Hen. VIII. c. 9, s. 11. 1 Russell, 300. Bawdyhouses and gaming-houses are clearly nuisances in the eye of the law. 1 Russell, 299. Rex rs. Higginson, 2 Burr. 1232. Rex vs. Rogier, 2 D. & R. 431. 1 B. & C. 272. Playhouses are not in themselves nuisances, though by neglect or mismanagement they may be rendered so. 1 Hawk. P. C. c. 32, s. 7. But, by 10 Geo. II. c. 28, all places for the exhibition of stage-entertainments must be licensed, (Rex vs. Handy, 6 T. R. 286, where it was held that tumbling was not a stage-entertainment within that act;) and, by 25 Geo. II. c. 36, all unlicensed places kept for such entertainments are to be deemed disorderly houses.-CHITTY.
13 The 19 Geo. III. c. 21 was repealed by the 22 Geo. III. c. 47, which was repealed by 42 Geo. III. c. 52, s. 27.
By the 42 Geo. III. c. 119, ss. 1, 2, all lotteries called little goes are declared to be public nuisances; and if any one shall keep an office or place to exercise or expose to be played any such lottery, or any lottery whatever not authorized by parliament, or shall knowingly suffer it to be exercised or played at in his house, he shall forfeit 500l. The provision as to the offender being deemed a rogue and vagabond seems repealed by the 5 Geo. IV. c. 83, which contained a provision to that effect.
And, by sect. 5 of the 42 Geo. III. c. 119, if any person shall promise to pay any money or goods on any contingency relative to such lottery, or publish any proposal respecting it, he shall forfeit 1007. State lotteries are now abolished, by statute 6 Geo. IV.-CHITTY. 14 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. And if any person shall make or sell any squibs, rockets, or fire-works, he shall forfeit, upon conviction before a magistrate, 5l.,—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 highway, he shall forfeit 20s. in like manner. 9 & 10 W. III. c. 7.-CHITTY.
By 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, J. 24th ed. 758. 2 Stra. 1167.-CHITTY.