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CHAPTER THE

THIRTEENTH.

OF OFFENCES AGAINST THE PUBLIC HEALTH,

AND THE PUBLIC POLICE OR OECONOMY.

T

HE 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 bleffing 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 inforced, by the watchmen appointed on such melancholy occafions, to obey such necessary command: and, if any hurt ensue by such inforcement, 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 fore 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 VOL. IV. 26 Geo. II.

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26 Geo. II. c. 6. (explained and amended by 29 Geo. II. c. 8.) the method of performing quarentine, 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 fame penalty also attends persons escaping from the lazarets, or places wherein quarentine is to be performed; and officers and watchmen neglecting their duty; and persons conveying goods or letters from. ships performing quarentine.

2. A SECOND, but much inferior, species of offence against public health is the selling of unwholsome provisions. To prevent which the statute 51 Hen. III. ft. 6. and the ordinance for bakers, c. 7. prohibit the fale of corrupted wine, contagious or unwholsome flesh, or flesh that is bought of a Jew; under pain of amercement for the first offence, pillory for the fecond, fine and imprisonment for the third, and abjuration of the town for the fourth. And by the statute. 12 Car. II. c. 2.5. §. 11. any brewing or adulteration of wine is punished with the forfeiture of 1001, if done by the wholesale merchant; and 401, if done by the vintner or retale trader. 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 and oeconomy. By the public police and oeconomy 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, induftrious, and inoffenfive in their respective stations. This head of offences must therefore be very miscellaneous, as it comprizes 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 misdemesnors only. Among the former are,

amount,

I. THE offence of clandestine marriages: for by the statute 26 Geo. II. c. 33. 1. To folemnize marriage in any other place besides a church, or public chapel wherein banns have been ufually published, except by licence from the archbishop; --- and, 2. To folemnize marriage in such church or chapel without due publication of banns, or licence 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, he and his assistants were subject to a pecuniary forfeiture of 1001. 3. To make a false entry in a marriage register; to alter it when made; to forge, or counterfeit, such entry, or a marriage licence, or aid and abet 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 fubject any person to the penalties of this act; all these offences, knowingly and wilfully committed, subject the party to to the guilt of felony, without benefit of clergy.

2. ANOTHER felonious offence, with regard to this holy eftate of matrimony, is what our law corruptly calls bigamy; which properly fignifies being twice married, but with us is used as synonymous to polygamy, or having a plurality of wives at once. Such second marriage, living the former husband or wife, is fimply void, and a mere nullity, by the ecclefiaftical law of England: and yet the legislature has thought it just to make it felony, by reason of it's being so great a violation of the public oeconomy 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 fallacioufness of which has been fully proved by many sensible writers :

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2 6 & 7 W. III. c. 6. 7 & 8 W. III. c.35. 3 Inst. 88.

10 Ann. c. 19. §. 176.

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but

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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, " prope foli barbarorum fingulis uxoribus " contenti funt." It is therefore punished by the laws both of antient and modern Sweden with death. And with us in England it is enacted by statute I Jac. I. c. II. 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 an evidence against her husband, because she is the true wife; but the second may, for she is indeed no wife at all; and so, vice verfa, of a fecond husband. This act makes an exception to five cafes, in which such second marriage, though in the three first it is void, is yet no felony. 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 notice of the other's being alive within that time. 3. Where there is a divorce or feparation a mensa et thoro by sentence in the ecclefiaftical court. 4. Where the first marriage is declared absolutely void by any such sentence, and the parties loofed a vinculo. Or, 5. Where either of the parties was under the age of confent at the time of the first marriage: for in such cafe the first marriage was voidable by the disagreement of either party, which this second marriage very clearly amounts to. But, if at the age of confent 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 fuch second marriage would be within the reason and penalties of the act.

• de mor. Germ. 18.

• Stiernh. de jure Sueon. 1. 3. c. 2.

Hal, P. C. 693.

3. A THIRD

3. A THIRD species of felony against the good order and oeconomy of the kingdom, is by idle foldiers and mariners wandering about the realm, or persons pretending so to be, and abusing the name of that honourable profession. 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 fubstance will take him into his service, and he abides in the same for one year; unless licenced 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 made their first appearance in Germany about the beginning of the fixteenth century, and have fince spread themselves all over Europe. Munster, it is true, who is followed and relied upon by Spelmanh, fixes the time of their first appearance to the year 1417; but, as he owns, that the first whom he ever faw were in 1524, it is probably an error of the press for 1517: especially as other historians inform us, that when fultan Selim conquered Egypt, in the year 1517, several of the natives refused to submit to the Turkish yoke; but, being at length fubdued and banished, they agreed to disperse in small parties all over the world, where their supposed skill in the black art gave them an universal reception, in that age of fuperftition and credulity. In the compass of a very few years they gained such a number of idle proselytes,

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