measures; the standard of which fell under our consideration in a former volume. (h) The punishment of bakers breaking the assize was anciently to stand in the pillory, by statute 51 Henry III, st. 6, and for brewers (by the same act), to stand in the tumbrel or dungcart: (i) which, as we learn from domesday book, was the punishment for knavish brewers in the city of Chester, so early as the reign of Edward the Confessor. "Malam cerevisiam faciens, in cathedra ponebatur stercoris." (j) But now the general punishment for all frauds *of this kind, if indicted (as they may be) at common law, is by fine and imprisonment: though the easier and more usual [*158] way is by levying on a summary conviction, by distress and sale, the forfeitures imposed by the several acts of parliament. Lastly, any deceitful practice, in cozening another by artful means, whether in matters of trade or otherwise, as by playing with false dice, or the like, is punishable with fine, imprisonment, and pillory. (k) (5) And by the statutes 33 Hen. VIII, c. 1, and 30 Geo. II, c. 24, if any man defrauds another of any valuable chattels by colour of any false token, counterfeit letter, or false pretence, or pawns or disposes of another's goods without the consent of the owner, he shall suffer such punishment by imprisonment, fine, pillory, transportation, whipping, or other corporal pain, as the court shall direct. (6) The offence of forestalling the market is also an offence against public trade. This, which (as well as the two following) is also an offence at com. mon law, () was described by statute 5 and 6 Edw. VI, c. 14, to be the buying or contracting for any merchandize or victual coming in the way to market; or dissuading persons from bringing their goods or provisions there; or persuading them to enhance the price, when there: any of which practices make the market dearer to the fair trader. (7) 7. Regrating was described by the same statute to be the buying of corn, or other dead victual, in any market, and selling it again in the same market, or within four miles of the place. For this also enhances the price of the provisions, as every successive seller must have a successive profit. 8. Engrossing was also described to be the getting into one's possession, or buying up, large quantities of corn, or other dead victual, with intent to sell them again. This must of course be injurious to the public, by putting it in the power of one or two rich men to raise the price of provisions at their own discretion. And so the total engrossing of any other commodity, with intent to sell it at an unreasonable *price, is an offence indictable and finable at the common law. (m) And the general penalty for these three of[*159] fences by the common law (for all the statutes concerning them were repealed by 12 Geo. III, c. 71), is, as in other minute misdemeanors, discretionary fine and imprisonment. (n) Among the Romans these offences, and other malpractices to raise the price of provisions, were punished by a pecuniary mulct." Pana viginti aureorum statuitur adversus eum, qui contra annonam fecerit, societatemve coierit quo annona carior fiat." (0) (h) See book I, page 274. (i) 3 Inst. 219. (n) 1 Hawk. P. C. 235. (Seld. tit. of Hon. b. 2, c. 5, § 2. (1) 1 Hawk. P. C. 234. (0) Ff. 48, 12, 2. (5) Frauds upon public justice and such as affect the crown and public, though arising from some particular transaction with an individual, are indictable as cheats at common law. 1 Russell on Crimes, 285. Under this head come such cheats as are effected by means of false tokens, measures or weights, and false dice. Russell, 289. (6) By statute 24 and 25 Vic., c. 96, s, 88, "Whosoever shall, by any false pretense, obtain from any other person any chattel, money or valuable security with intent to defraud, shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable, at the discretion of the court, to be kept in penal servitude for the term of three years, or be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement.' See, as to this offense, 1 Bish. Cr. L. §518; 2 Russ. on Crimes, 286, et seq. (7) This and the two following offenses are now done away with by statute 7 and 8 Vic., c. 24. 9. Monopolies are much the same offence in other branches of trade, that engrossing is in provisions: being a license or privilege allowed by the king for the sole buying and selling, making, working or using of any thing whatsoever; whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before. (p) These had been carried to an enormous height during the reign of Queen Elizabeth; and were heavily complained of by Sir Edward Coke, (q) in the beginning of the reign of King James the First: but were in great measure remedied by statute 21 Jac. I, c. 3, (8) which declares such monopolies to be contrary to law and void (except as to patents, not exceeding the grant of fourteen years, to the authors of new inventions; and except also patents concerning printing, saltpetre, gunpowder, great ordnance and shot); and monopolists are punished with the forfeiture of treble damages and double costs, to those whom they attempt to disturb; and if they procure any action, brought against them for these damages, to be stayed by any extra-judicial order, other than of the court wherein it is brought, they incur the penalties of præmunire. Combinations, also, among victuallers or artificers, to raise the price of provisions, or any commodities, or the rate of labor, (9) are in many cases severely punished by particular statutes; and in general by statute 2 and 3 Edw. VÍ, c. 15, with the forfeiture of 10%., or twenty-one days' imprisonment with an allowance of only bread and water, for the first offence; 201. or the pillory, for the second; and [*160] *40%. for the third, or else the pillory, loss of one ear and perpetual infamy. In the same manner by a constitution of the Emperor Zeno, (r) all monopolies and combinations to keep up the price of merchandise, provisions or workmanship, were prohibited upon pain of forfeiture of goods and perpetual banishment. (10) 10. To exercise a trade in any town, without having previously served as an apprentice for seven years, (s) is looked upon to be detrimental to public (p) 1 Hawk. P. C. 821. (g) 3 Inst. 181. (r) Cod. 4, 59, 1. (8) See book I, page 427. (8) Amended by statute 5 and 6 Wm. 4. c. 83. See also statute 7 and 8 Vic., c. 24. (9) All prior acts relative to labor combinations were repealed by 6 Geo. IV, c. 129. See further in reference to the matter, 9 Geo. IV, c. 31; and 22 Vic., c. 34, and 24 and 25 Vic., c. 100. (10) The following is an important recent enactment-34 and 35 Vic., c. 32-for the protection of both employers and laborers, against unlawful combinations and attempts at intimidation. Be it enacted, etc.: 1. Any person who shall do any one or more of the following acts, that is to say: (1) Use violence to any person or any property; (2) Threaten or intimidate any person in such manner as would justify a justice of the peace, on complaint made to him, to bind over the person so threatening or intimidating to keep the peace; (3) Molest or obstruct any person in manner defined by this section. With a view to coerce such person; (1) Being a master, to dismiss or cease to employ any workman, or, being a workman, to quit any employment, or to return work before it is finished; (2) Being a master, not to offer, or, being a workman, not to accept any employment or work; (3) Being a master or workman, to belong or not to belong to any temporary or permanent association or combination; (4) Being a master or workman, to pay any fine or penalty imposed by any temporary or permanent association or combination; (5) Being a master, to alter the mode of carrying on his business, or the number or description of any persons employed by him, Shall be liable to imprisonment, with or without hard labor, for a term not exceeding three months. A person shall, for the purposes of this act, be deemed to molest or obstruct another person in any of the following cases, that is to say: (1) If he persistently follow such person about from place to place; (2) If he hide any tools, clothes or other property owned or used by such perscr, or deprive him of or hinder him in the use thereof; (3) If he watch or beset the house or other place where such person resides or works trade, upon the supposed want of sufficient skill in the trader: and therefore is punished by statute 5 Eliz. c. 4, with the forfeiture of forty shillings by the month. (11) 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 1007., 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 imprisoned for twelve months: and for the second 1,000l., and are liable to two years' imprisonmentand 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 (except wool-cards to North America), (t) he forfeits the same and 2007., and the captain of the ship (having knowledge thereof) 100%.; and if any captain of a king's ship, or officer of the customs, knowingly suffers such exportation, he forfeits 100%. 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, forfeit such tools, and also 2007. (12) CHAPTER XIII. OF OFFENCES AGAINST THE PUBLIC HEALTH, AND THE PUBLIC POLICE OR ECONOMY. 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 watchman appointed on such melancholy occasions, to obey such necessary command: and if any (t) Stat. 15 Geo. III, c. 5. or carries on business, or happens to be, or the approach to such house or place, or if, with two or more other persons, he follow such person in a disorderly manner in or through any street or road. Nothing in this section shall prevent any person from being liable under any other act or otherwise to any other or higher punishment than is provided for any offense by this section, so that no person be punished twice for the same offense. Provided, that no person shall be liable to any punishment for doing or conspiring to do any act on the ground that such act restrains or tends to restrain the free course of trade, unless such act is one of the acts herein before specified in this section, and is done with the object of coercing as herein before mentioned. (11) The part of this statute here referred to was repealed by statute 54 Geo. III, c. 96, 8. 1. (12) All statutes prohibiting artificers from going abroad are repealed by statute 5 Geo. IV, c. 97, and 6 and 7 Vic.. c. 84. hurt ensue by such enforcement, 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 [*162] 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) 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 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, s. 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. (3) 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 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, (1) Other statutes imposing lighter punishments now take the place of those mentioned in the text. Vaccination of children was made compulsory by statute 16 and 17 Vic., c. 100, § 9. (2) Where a contractor was indicted for selling bad bread to prisoners of war, the court held that the giving of any person unwholesome victuals not fit for man to eat, lucri causa, or from malice or deceit, is an indictable offense. Treeve's Case, 2 East P. C., 821. So where lumps of crude alum were mixed with bread sent to a charity school. R. v. Dixon, 3 M. & Sel., 11. A principal is liable for his agent's sale of noxious provisions, if by ordinary care he could have ascertained the condition of the food sold. Hunter v State, 1 Head, 161. On the ground that mixing any poisonous ingredient with food or drink is indictable, throwing a dead animal into a well from which a family was known to drink, was held an offense. State v. Buckman, 8 N. H., 203. The sale of bad food is not only an offense at common law (State v. Smith, 3 Hawks, 378; R. v. Stevenson, 3 F. & F., 106), but knowingly carrying to market meat unfit for human food, is likewise an offense. R. v. Jarvis, 3 F. & F., 108; not, however, if the meat is meant for feeding animals. R. v. Crawley, 3 F. & F., 109. So, where the sale of bad food was to a wholesale dealer, the ignorance of the seller as to the person to use the food is no excuse, if he sells knowing the state of the provisions. People v. Parker, 38 N. Y., 85. The food must be in such condition as to affect the health of those using it. State v. Norton, 2 Ired., 40. Where a miller was charged in an indictment with delivering four bushels of musty, unwholesome, mixed oat and barley meal, after receiving four bushels of barley to grind, without stating that the meal was to be used for human food, held no offense was stated. If it had been a mill to which the inhabitants were bound to resort for grinding, query? citing R. v. Wheatley, 2 Burr., 1175; R. v. Haynes, 4 M. & Sel., 214. (3) See also the statutes 1 W. and M., st. 1. c. 34, s. 20; 3 Geo. IV, c. 106; 6 and 7 Wm. IV, c. 37; 7 and 8 Vic., c. 24; 24 and 25 Vic., c. 100, § 24. 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, [*163] or public chapel wherein banns have been usually published, except by license 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 100%. 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. (4) 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) 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, [*164] 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 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, (c) "prope soli barbarorum singulis uxoribus contenti sunt." 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, 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 divorce (or separation a mensa et (a) 6 and 7 Wm. III, c. 6. 7 and 8 Wm. III, c. 35. 10 Ann. c. 19, § 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, &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 counterplea 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 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 statute 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. (c) Du mor. Germ. 18. (d) Stiernh. de jure Sueon. l. 3, c. 2. (f) 3 Inst. 89. Kel. 27. 1 Hal. P. C. 694. (e) 1 Hal. P. C. 693. (4) The law on this subject is much modified by subsequent statutes. See statute 4 Geo. IV, c. 76; 6 and 7 Wm. IV, c. 85; 7 Wm. IV and 1 Vic., c. 22; 3 and 4 Vic., c. 72; and 24 and 25 Vic., c. 98. Marriages solemnized knowingly except in the manner provided are void, and the persons officiating are guilty of felony. |