the same shall, on conviction at the assizes, forfeit such tools and also 2001. (25) CHAPTER XIII. OF OFFENCES AGAINST THE PUBLIC HEALTH, AND THE PUBLIC POLICE OR ECONOMY. *161] *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 watchmen appointed on such melancholy occasions, to obey such necessary command; and, if any hurt ensue by such enforcement, the watchmen are thereby indemnified. And further, 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 behavior; but, if he has any infectious sore upon him, uncured, he then shall be guilty of felony. By the statute 26 Geo. II. c. 26, (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 com*162] ing 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 (2) To prevent which, the statute 51 (25) All the statutes prohibiting artificers from going abroad are repealed, by 5 Geo. IV. c. 97, so that artists may now settle in foreign parts without any restrictions or liabilities. -CHITTY. (1) By the 6 Geo. IV. c. 78, all the prior statutes relative to the quarantine-laws are repealed, and other provisions are made, similar in their nature to the former. See the prior statutes and decisions thereon, Burn, J. 24th ed. tit. Plague. 2 Chitt. Crim. Law, 551, and 2 Chitt. Commercial Law, 62 to 87. It is a misdemeanor at common law to expose a person laboring under an infectious disorder, as the smallpox, in the streets or other public places. 4 M. & S. 73, 272. An indictment lies for lodging poor persons in an unhealthy place. Cald. 432-CHITTY. Now, by the 16 & 17 Vict. c. 100, s. 9, if the parent or person having care of a child shall not, after notice from the registrar of births, attend to have vaccination performed, such father, mother, or person shall forfeit a sum not exceeding 20s.—STEWART. (2) "Amongst offences of this description is the selling of unwholesome provisions. And it is said, more largely, that the giving of any person unwholesome victuals, not fit for man to eat, lucri causa [For the sake of gain], or from malice and deceit, is undoubt. edly, in itself, an indictable offence." Russell on Crimes, 2, *605. 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. (3) And, by the statute 12 Car. II. c. 25, §11, any brewing or adulteration of wine is punished with the forfeiture of 100l. if done by the wholesale merchant, and 40/. if done by the vintner or retail trader. (4) These are all the offences which may properly be said to respect the public health. 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 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 behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations. (5) 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. 33, 1. To solemnize marriage in any other place besides a church or public "If this putting upon the community of unwholesome food and drink were assumed not to be punishable under the ancient common law, still it is under English statutes so old as to be common law with us." Bishop, Cr. L. 1, 8 491, p. 300. An indictment for selling unwholesome provisions sufficiently avers a sale for consumption as food for man by stating that the prisoner sold to divers citizens beef as wholesome food, well knowing the same to be diseased, unwholesome and not fit to be eaten. Goodrich V. The People, 19 N. Y. 574, 576 (1859). Blumhardt v. Rohr, 70 Md. 328, 335 (1889). 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 execution 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. & S. 10. 4 Camp. 10. But an indictment will not lie against a miller for receiving good barley to grind at his mill, and delivering a mixture of oats and barley which is musty and unwholesome. 4 M. & S. 214.-CHITTY. (3) This statute is now repealed. 7 & 8 Vict. c. 24.—STEWART. (4) And, by the 1 W. and M. st. 1, c. 34, s. 20, any person selling wine corrupting or adulterating it, or selling it so adulterated, shall forfeit 300l., half to the king and half to the informer, and shall be imprisoned three months.-CHITTY. See statutes 3 Geo. IV. c. 106; 6 & 7 Wm. IV. c. 37; and 24 & 25 Vict. c. 100, 24. (5) Tennessee v. Davis, 100 U. S. 257, 300 (1879). Concerning the uncertainty of the limits of this species of offences, see Watertown v. Mayo, 109 Mass. 315. See also People v. Cipperly, 37 Hun. (N. Y.) 319, 325 (1885). "It [police power] has its foundation in that maxim of all well ordered society, which requires every one to use his own so as not to injure the equal enjoyments of others having equal rights of property. To a great extent the legislature is the proper judge of the necessity for the exercise of this restraining power. It is not easy to prescribe this limit. The law will not allow rights of property to be invaded under the guise of a police regulation for the preservation of health or protection against a threatened nuisance; and when it appears that such is not the real object and purpose of the regulation, courts will interfere to protect the rights of the citizen.' Watertown V. Mayo, 109 Mass. 315, 318 (1872). See Cohen v. Jarrett, 42 Md. 571, 576 (1875). Commissioners v. Steamboats, etc., 28 Ala. 185, 199 (1856). The imposition of a tax upon the rights granted to an individual by a charter cannot be sustained as a proper exercise of the police power. Stein v. Mayor, 49 Ala. 362, 369 (1873). chapel wherein banns have been usually published, except by license *163] 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 100l. 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. (6) 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)(7) 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. (8) 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 *164] (a) 6 & 7 W. III. c. 6. 7 & 8 W. III. c. 35. 10 Anne, c. 19, e. 176. (b) 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, etc., 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. [They were stripped of every clerical privilege, and given up to the power of the secular court.] 6 De cretal. 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 counterplea to the claim of the benefit of clergy. M. 49 Edw. III. 42. M. 11 Hen. IV. 11, 48. M. 13 Hen. IV. 6 Staundf. P. C. 134. 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 stat. 1 Edw. VI. c. 12, s. 16, bigamy was declared to be no longer an impediment to the claim of clergy. See Dal. 21. Dyer, 201. (6) This act is now repealed, by the 4 Geo. IV. c. 76, and clergy is restored. By the 21st section of the 4 Geo. IV. c 76, it is felony with transportation for life to solemnize matrimony in any other place than in a church or chapel wherein banns may be lawfully published, or at any other time than between eight and twelve in the morning, except by special license from the archbishop of Canterbury, or to solemnize it without due publication of banns unless by license, or to solemnize it according to the rites of the Church of England, falsely pretending to be in holy orders: but the prosecution must take place in three months. By the 28th section of the same act, it is felony, punishable with transportation for life, to insert in the registry-book any false entry of anything relating to any marriage, or to make, alter, forge, or counterfeit any such entry, or to make, alter, forge, or counterfeit any license of marriage, or to utter or publish as true any such false, etc. register as aforesaid, or a copy thereof, or any such false, etc. license; or to destroy any such register-book of marriages, or any part thereof, with intent to avoid any marriage, or to subject any person to any of the penalties of that act. But this act does not extend to marriages of Quakers or Jews. Independently of this statute, these offences were punishable at common law, and subjected the offender to severe imprisonment and fine. 2 Sid. 71.-CHITTY. See statutes 6 & 7 Wm. IV. c. 85; 7 Wm. IV. & 1 Vict. c. 22; 3 & 4 Vict. c. 72, and 24 & 25 Vict c. 98. (7) Barb. Cr. L. 1, *211, p. 365. See N. Y. Penal Code. Russell on Crimes, 1, *268, supra. Archbold's Crim. Pr. & Pl. 2 (1807). (8) Regina v. Brierly, 14 Ontario, 525, 535 (1887). 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.'(9) 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 (10) 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.(ƒ) 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. (11) 3. Where there is a divorce (or separation a mensa et thoro)(12) 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. (13) 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. (14) (c) De Mor. Germ. 18. (d) Stiernhook, de jure Sueon. l. 3, c. 2. 1 Hal. P. C 693. (f) 3 Inst. 89. Kelw. 27. 1 Hal. P. C. 694. (9) ["Almost the only barbarians who are contented with one wife."] (10) [Conversely.] (11) If a person marrying again come within the second of these exceptions, though the second marriage is not felony, yet, as before the statute, it is null and void, and the parties will be subject to the censures and punishment of the ecclesiastical courts." Russell on Crimes, 1, *273. (12) [From board and bed.] (13) [From the bond of marriage.] (14) 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 labor, 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 court 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, *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 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, and he abides in the same for one year, unless licensed to depart by his employer, who in such case shall forfeit ten pounds. (15) 4. Outlandish persons calling themselves Egyptians or gypsies are another object of the severity of some of our unrepealed statutes. (16) 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 3 Inst. 85. Cosmog. l. 3. (i) Gloss. 193. 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 [From the bond] alone will now justify the second marriage: formerly a divorce a menså et thoro [From board and bed] was held sufficient. I 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 Trueman's case, I 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. & R. C. C. 109;) and it matters not that the first marriage is voidable by reason of affinity, etc. 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. I 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. & R. C. C. 237, cited in Tovey v. Lindsay, I Dow. 117. The burden of proving the first marriage to have been legal lies upon the prosecutor. Rex v. James, R. & R. C. C. 17. Rex v. Morton, id. 19. Rex v. Butler, id. 61. The act extends to all dissenters except Jews and Quakers. Upon the subject of bigamy geneally, see I Hawk. P. C. c. 32. 1 East, P. C. c. 12. I Russell, c. 23. Butler's Co. Litt. 79, b. n. I. 3 Stark. Ev. Polygamy.-CHITTY. (15) 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. (16) No such statutes exist in the United States. Bishop, Cr. L. 1, 516, p. 315. |