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CHAPTER THE NINTH.

OF NEGLECTING QUARANTINE, OF SPREADING CONTAGIOUS

DISORDERS, AND OF INJURY TO THE PUBLIC HEALTH.

SECT. I.

Of neglecting Quarantine. The performance of quarantine, or forty days' probation, when ships arrive from countries infected with contagious disorders, having been considered as of the highest importance, with reference to the public health of the nation, has been enforced from time to time by various legislative enactments. These were formerly of considerable severity: but the recent statute 6 Geo. 4. c. 78. repeals all former acts upon this subject, and enforces the performance of quarantine principally by pecuniary penalties. Some offences however subject the offender to imprisonment, and some are of the degree of felony. It may be here observed, that in a case which arose upon a former statute 26 Geo. 2. c. 6. which enacted, that all persons going on board ships coming from infected places should obey such orders as the King in council should make, but did not award any particular punishment, nor contain a clause as to the jurisdiction of justices of the peace, it was holden that disobedience of such an order of council was an indictable offence, and punishable as a misdemeanor at common law. (a)

The seventeenth section of this statute 6 Geo. 4. enacts, that “if 6 Geo. 4.

any commander, master, or other person, having charge of any c. 78. s. 17. “ vessel liable to perform quarantine, and on board of which the Penalty on “ plague, or other infectious disease or distemper, shall not then quitting ves“ have appeared, shall himself quit, or shall knowingly permit or sels, or per

mitting perany seaman or passenger coming in such vessel to quit

to “such vessel, by going on shore, or by going on board any other them, or not “ vessel or boat, before such quarantine shall be fully performed, conveying “ unless by such licence as shall be granted by virtue of any order appointed “in council, to be made concerning quarantine as aforesaid, or in places, 4001 66

case any commander or other person having charge of such ves« sel shall not, within a convenient time after due notice given for " that purpose, cause such vessel, and the lading thereof, to be

conveyed into the place or places appointed for such vessel and

“ suffer

(a) Rcx v. Harris, 4 T. R. 202. 2 Lcach 549.

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“ lading to perform quarantine; then and in every such case every “ such commander, master, or other person as aforesaid, for every

“ such offence shall forfeit and pay the sum of four hundred pounds; Persons com- “ and if any such person coming in any such vessel liable to quaing in such

“ rantine (or any pilot or other person going on board the same, vessels, or going on

6 either before or after the arrival of such vessel at any port or board, and “ place in the united kingdom, or the islands aforesaid), shall, quitting them « either before or after such arrival, quit such vessel, unless by before discharged from

“ such licence as aforesaid, by going on shore in any port or place quarantine, to “ in the united kingdom, or the islands aforesaid, or by going on suffer impri

“board any other vessel or boat, with intent to go on shore as sonment for six months, “aforesaid, before such vessel so liable to quarantine as aforesaid and forfeit “ shall be regularly discharged from the performance thereof, it 3001.

“ shall and may be lawful for any person whatsoever, by any kind “ of necessary force, to compel such pilot or other person so quit“ ting such vessel, so liable to quarantine, to return on board the “same; and every such pilot or other person so quitting such “ vessel so liable to quarantine shall for every such offence suffer “ imprisonment for the space of six months, and shall forfeit and

pay the sum of three hundred pounds. Penalty on

The 21st section enacts, "that if any officer of his Majesty's persons em

6 customs, or any other officer or person whatsoever, to whom it bezzling goods « doth or shall appertain to execute any order or orders made or to performing quarantine, “ be made concerning quarantine, or the prevention of infection, neglecting or " and notified as aforesaid, or to see the same put in execution, deserting their

“shall knowingly and wilfully embezzle any goods or articles perduty, or perinitting per

“ forming quarantine, or be guilty of any other breach or neglect sons, vessels,

“ of his duty in respect of the vessels, persons, goods, or articles, &c. to depart“ performing quarantine, every such officer or person so offending rity, or giving

“shall forfeit such office or employment as he may be possessed of,

“ and shall become from thence incapable to hold or enjoy the cates, or damaging goods.

same, or to take a new grant thereof; and every such officer

“ and person shall forfeit and pay the sum of two hundred pounds; And officers,

“ and if any such officer or person shall desert from his duty when &c. deserting employed as aforesaid, or shall knowingly and willingly permit their duty, or “any person, vessel, goods, or merchandize, to depart or be congiving false certificate of “veyed out of the said lazaret vessel or other place as aforesaid, performance unless by permission under an order of his Majesty, by and with of quarantine, “ the advice of his council, or under an order of two or more of the to be guilty of felony.

“ lords or others of his privy council ; or if any person hereby au“thorized and directed to give a certificate of a vessel having duly

performed quarantine or airing, shall knowingly give a false cer“ tificate thereof, every such person so offending shall be guilty of “ felony; and if any such officer or person shall knowingly or “ wilfully damage any goods performing quarantine under his di“rection, he shall be liable to pay one hundred pounds' damages,

6 and full costs of suit, to the owner of the same. Publication The publication in the London Gazette of any order in council

, of orders of

any order by two or more of the lords or others of the privy in the London council, made in pursuance of the act, or his Majesty's royal proGazette to be clamation made in pursuance of the same, is to be deemed and sufficient no- taken to be sufficient notice to all persons concerned, of all matters tice.

therein respectively contained.

false certifi

or of

evi

vessel came or touched at,

were liable

The statute also enacts, that in any prosecution, suit, or other Sect. 36. proceedings against any person or persons whatsoever, for any of the comoffence against this act, or any which may hereafter be passed mander, &c. concerning quarantine, or for any breach or disobedience of any are to be order made by his Majesty by the advice of his privy council, con- place from cerning quarantine, and the prevention of infection, notified or which the published as aforesaid, or of any order or orders made by two or less more of the privy council, the answers of the commander, master, and the having or other person, having charge of any vessel, to any question or been directed interrogatories put to him by virtue and in pursuance of the act, or to perform of any act which may hereafter be passed concerning quarantine, to be received or of any such order or orders as aforesaid, shall be received as as prima facie evidence so far as the same relate to the place from which such evidence that vessel came, or to the place or places at which she touched in the course of her voyage: and also that where any vessel shall have thereto; and been directed to perform quarantine by the superintendant of qua- performance of rantine, or his assistant, or, where there is no superintendant or quarantine to assistant, by the principal officer of the customs at any port or be proof of place, or other officer of the customs authorized to act in that liability to

quarantine. behalf; the having been so directed to perform quarantine shall be

The having given and received as evidence that such vessel was liable to qua- been directed rantine, unless satisfactory proof be produced by the defendant to to perform shew that the vessel did not come from, or touch at, any such place

quarantine is or places, as is or are stated in the said answers, or that such vessel, that the vessel although directed to perform quarantine, was not liable to the per- was liable to formance thereof. And it further enacts, that where

quarantine, any

vessel shall in fact have been put under quarantine by the superintendant, fendant shew &c. and shall actually be performing the same, such vessel shall, the contrary. in any prosecution, &c. for any offence against this act, or any other where any act hereafter passed concerning quarantine, or against any orders vessel shall in of council as aforesaid, be deemed liable to quarantine, without put under proving in what manner or from what circumstances such vessel quarantine, became liable to the performance thereof.

performing the same, it shall be deemed liable without proof of the ma

to be evidence

unless the de

and shall be

her in which it became liable.

SECT. II.

Of Spreading Contagious Disorders, and of Injury to the

Public Health.

With the same regard to the public health, upon which the sta- Persons intutes relating to quarantine have proceeded, the

Legislature appears fected with the to have acted in former times, in making persons guilty of felony abroad and inwho, being infected with the plague, went abroad and into com- fecting others. pany, with infectious sores upon them, after being commanded by

VOL. I.

the magistrates to stay at home. (*) The statute which contained this enactment, after being continued some time, is now expired: but Lord Hale puts the question, whether if a person infected with the plague should go abroad with intent to infect another, and another be thereby infected and die, it would not be murder by the common law. (k) And he seems to consider it as clear, that though where no such intent appears it cannot be murder, yet, if by the conversation of such a person another should be infected, it

would be a great misdemeanor. (1) It is an indict- In a late case in the Court of King's Bench, relating to the able offence

small-pox infection, it was held that the exposing in the public injuriously to highway, with a full knowledge of the fact, a person infected with carry a child a contagious disorder is a common nuisance, and as such the subinfected with ject of an indictment. The defendant was indicted for carrying the small pox

her child, while infected with the small-pox, along a public highalong a public highway, in way, in which persons were passing, and near to the habitations of which persons the king's subjects; and having suffered judgment to go by default, and near to the it was moved on her behalf, in arrest of judgment, that it was conhabitations of sistent with the indictment that the child might have caught the the king's

disease, and that it was not shewn that the act was unlawful, as subjects.

the mother might have carried it through the street, in order to procure medical advice; and that the indictment ought to have alleged, that there was some sore upon the child at the time when it was so carried. It was also urged, that the only offences against the public health of which Hawkins speaks are spreading the plague and neglecting quarantine ; (m) and that it appeared that Lord Hardwicke thought the building of a house for the reception of patients inoculated with the small-pox was not a public nuisanee, and mentioned that upon an indictment of that kind there had been an acquittal. (n) But Lord Ellenborough, C. J. said that if there had been any such necessity as supposed for the conduct of the defendant, it might have been given in evidence as matter of defence : but there was no such evidence; and as the indictment alleged that the act was done unlawfully and injuriously, it precluded the presumption that there was any such necessity. Le Blanc, J. in passing sentence observed, that although the Court had not found upon its records any prosecution for this specific offence, yet there could be no doubt in point of law, that if any one unlawfully, injuriously, and with full knowledge of the fact, exposes in a public highway a person infected with a contagious disorder; it is a common nuisance to all the subjects, and indictable as such. That the Court did not pronounce that every person who inoculated for this disease was guilty of an offence, provided it was done in a proper manner, and the patient was kept from the society of others, so as not to endanger a communication of the disease. But no person, having a disorder of this description upon

(1) 2 (vulgo 1.) Jac. I. c. 31. s. 7. 1 Crim. Law 656, there is an indictment Hale 432, 695. 3 Inst. 90.

against an apothecary for keeping a (k) I Hale 432.

common inoculating house near the (1) Id. ibid.

church in a town: and the Cro. Circ. (m) i Hawk. P. C. c. 52, 53. A. 365, is referred to. (n) Anon. 3 Atk. 750. In 2 Chitt.

him, ought to be publicly exposed, to the endangering the health and lives of the rest of the subjects. (0)

In a subsequent case, in the same Court, the indictment' was And it is also against an apothecary for unlawfully and injuriously inoculating an indictable children with the small-pox, and, while they were sick of it, un- offence in an lawfully and injuriously causing them to be carried along the after having public street. The defendant was found guilty: but it was moved inoculated

children, unin arrest of judgment, that this was not any offence; that the case

lawfully and differed materially from that of Rex v. Vantandillo, as it appeared injuriously to that the defendant was by profession a person qualified to inoculate cause them to

be exposed with this disease, if it were lawful for any person to inoculate with

in the public it. That as to its being alleged that the defendant caused the street to the children to be carried along the street, it was no more than this, danger of the that he directed the patients to attend him for advice instead of public health. visiting them, or that he prescribed what he might deem essential to their recovery, air and exercise. And it was observed that in Rex v. Sutton, (p) which was an indictment for keeping an inoculating-house, and therefore much more likely to spread infection than what had been done here, the Court said that the defendant might demur.

But Lord Ellenborough, C. J. said, that the indictment laid the act to be done unlawfully and injuriously; and that in order to support this statement it must be shewn, that what was done was, in the manner of doing it, incautious, and likely to affect the health of others. That the words unlawfully and injuriously precluded all legal cause of excuse. And that though inoculation for the small-pox may be practised lawfully and innocently, yet it must be under such guards as not to endanger the public health by communicating this infectious disease.

And Le Blanc, J. in passing sentence in this case observed, that And it was the introduction of vaccination did not render the practice of always an ininoculation for the small-pox unlawful; but that in all times it fence to exwas unlawful and an indictable offence to expose persons infected pose persons with contagious disorders, and therefore liable to communicate places of pubthem to the public, in a place of public resort. (9)

The public health may be injured by selling unwholesome food; Injury to the and it is an indictable offence to mix unwholesome ingredients in public health any thing made and supplied for the food of man. And if a master unwholesome knows that his servant puts into bread what the law has pro- food. hibited, and the servant, from the quantity he puts in, makes the bread unwholesome, the master is answerable criminally, for he should have taken care that more than is wholesome was not inserted. The indictment was against the contract baker for a military asylum, for delivering for the use of the children belonging to the asylum divers loaves containing noxious materials, which he knew. The evidence was that they contained crude lumps of alum, and that alum was an unwholesome ingredient, and that the defendant's foreman made the loaves : but the jury found that the defendant knew he used alum. Upon a motion for a new trial the (6) Rex v. Vantandillo, 4 M. and S. (9) Rex v. Burnett, 4 M. and S. 272.

1

lic resort.

The defendant was sentenced to six (P) 4 Burr. 2116.

months' imprisonment.

73.

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