:

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 [any sum not exceeding] 100%. 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 lands 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 [calendar] months; and for the second, 1000l. 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, (excepting woolcards to North America',) he forfeits the same and 2007., and the captain of the ship (having knowledge thereof) 100l.; 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, [or quarter sessions,] forfeit such tools and also 200l. (13)

t Stat. 15 Geo. III. c. 5.

(13) These statutes, and several later, which had been made in pursuance of the same policy, so far as they relate to artificers going abroad, or the enticing them so to do, are now repealed by the 5G. 4. c. 97.

CHAPTER THE THIRTEENTH.

OF

OFFENCES AGAINST THE PUBLIC HEALTH, AND THE PUBLIC POLICE OR OECONOMY.

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 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 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. 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)

9. A SECOND, but much inferior species of offence against public health is the selling of unwholesome provisions. 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 Car. II. c. 25. § 11. any brewing or adulteration of wine is punished with the forfeiture of 100%. if done by the wholesale merchant; and 40%. if done by the vintner or retail trader. These are all the offences which may properly be said to respect the public health. (2)

(1) The 45G.3. c. 10. and 46 G.3. c. 98. are the laws now in force for the regulation of quarantine. Many offences described in these statutes are punished by pecuniary penalties and imprisonment; but it is felony, without benefit of clergy, for any master knowingly to omit disclosing that he has touched at any infected place, or has any infected person on board, or wilfully to omit, under such circumstances, the hoisting the yellow flag; it is also a capital offence for persons liable to perform quarantine to refuse to repair to the appointed place for performing it, or to escape from it; and for any officer of quarantine knowingly to permit any person, ship, or goods to depart, or be conveyed from such place, without permission of his majesty, or to give a false certificate of the due performance of quarantine. Persons uninfected who once enter a lazaret are laid under the same restrictions, and exposed to the same punishments, as those performing quarantine there. It is also a capital offence to convey clandestinely, or conceal for such purpose, any letters or goods from a ship in quarantine.

By the common law, it is a nuisance to expose persons infected with contagious disorders in streets or places of public resort; and therefore, though it is not unlawful to inoculate with the small-pox, yet it must be done under such guards, and the patients afterwards so managed as not to endanger the public health by the communication of the disease. R. v. Vantandillo, 4 M. & S. 73., and R. v. Burnett, 4 M. & S. 272.

(2) By 1 W.& M. st. 1. c. 34. s. 20., it is more generally provided that every person selling wine by wholesale or retail, who shall adulterate it,

or

V. THE last species of offences which especially affect the commonwealth, are those against the public police or 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, 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 misdemesnors only. Among the for

mer 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 chapel wherein banns have been usually published, except by licence from the archbishop of [163] Canterbury; and, 2. To solemnize 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 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 licence; 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. (3) a 6 & 7 W.III. c.6. 7&8 W. III. c.35. 10 Ann. c. 19. § 176.

or sell it adulterated, shall forfeit 300l. for each offence, one half to the king, and the other to him who shall sue for it, and shall also be imprisoned three months.

(3) The 26 G. 2. c. 33. is now repealed; and by 4G. 4. c. 76., 1st, to solemnize matrimony elsewhere than in a church, or such public chapel

wherein

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. 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 oeconomy 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 [164] 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,

b3 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

66

prope soli barbarorum sinuncommon counterplea to the claim of the benefit of clergy. (M. 40 Ed. 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 Ed. III. st.3. c. 2. to belong to the court christian, like that of bastardy. But by stat. 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.

de mor. Germ. 18.

wherein banns may be lawfully published, or at any other time than between eight and twelve in the forenoon, except by licence from the archbishop of Canterbury; 2d, to solemnize it without due publication of banns, unless by licence from a competent authority; or, 3d, to solemnize it according to the rites of the church of England, falsely pretending to be in holy orders, are all made felonies, punishable, if prosecuted within three years from the commission of the offence, by transportation for fourteen years. And by the same act, 1st, to insert in a register-book any false entry of any thing relating to any marriage; 2d, to make, alter, or counterfeit, or assist in making, &c. any such entry, or any licence of marriage, or to utter the same as true, knowing it to be false; or, 3d, to destroy or procure the destruction of any register-book of marriages, or any part thereof, with intent to avoid any marriage, or subject any person to any of the penalties of the statute, are made felonies punishable by transportation for life.