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The statute also enacts, that in any prosecution, suit, or other Sect.

The answers 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 evi

dence of the 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 ory

touched at, 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

quarantine is 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 ex

the vessels vessel came, or to the place or places at which she touched in the were liable 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 hab behalf : the having been so directed to perform quarantine shall be

quarantine.

hone 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,

to be evidence 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 any vessel

De unless the deshall 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

fact have been of council as aforesaid, be deemed liable to quarantine, without put under proving in what manner or from what circumstances such vessel quarantine,

and shall be became liable to the performance thereof.

the same, it shall be deemed liable without proof of the manner in which it became liable.

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performing

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 in

any plague going who, being infected with the plague, went abroad and into com- fecting others. pany, with infectious sores upon them, after being commanded by

VOL. I.

1 go abroadon, whether it a time, is non

the

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 unlawfully and in

a highway, with a full knowledge of the fact, a person infected with injuriously to m8nway, WI a TUII KII 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 along a public ner child, w

· her child, while infected with the small-pox, along a public highhighway, 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, are passing,

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. 1. 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. in) Anon. 3 Atk. 750. In 2 Chitt.

wanan

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blic health.

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

11 apothecary, lawfully and injuriously causing them to be carried along the after having public street. The defendant was found guilty: but it was moved inoculated

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

w n 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 pub 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

we always an inthe introduction of vaccination did not render the practice of dicta inoculation for the small-pox unlawful; but that in all times it fence lo exwas unlawful and an indictable offence to expose persons infected pose persons

infected in with contagious disorders, and therefore liable to communicate pla them to the public, in a place of public resort. (9)

lic resort. 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

by selling any thing made and supplied for the food of man. And if a master 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

(0) Rex v. Vantandillo, 4 M. and S. (Q) Rex v. Burnett, 4 M. and S. 272. 73.

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

months' imprisonment.

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unwholesome

Court thought, that if the master suffered the use of a prohibited article, it was his duty to take care that it was not used to a noxious extent, and that he was answerable if it was. A rule for arresting the judgment was then moved for, on the ground that the indictment did not specify what the noxious ingredients were, or state that the loaves were delivered to be eaten by the children: but the Court held the former not necessary because the ingredients were in the defendant's knowledge; and the allegation that the loaves were delivered for the use and supply of the children, must mean that they were delivered for their eating; and the rule was refused. (7)

(n) Rex v. Dixon, 3 M. and s. 11. penalties upon bakers for using alum, And see 1 and 2 Geo, 4. c. 50. as to &c. in making bread..

CHAPTER THE TENTH.

OF OFFENCES AGAINST THE REVENUE LAWS, RELATING

TO THE CUSTOMS OR EXCISE.

offerte, in aditig revente eo those on endeave use

AMONGST the offences against the revenue laws, that of smuggling is one of the principal. It consists in bringing on shore, or in carrying from the shore, goods, wares, or merchandize, for which the duty has not been paid, or goods of which the importation or exportation is prohibited : an offence productive of various mischiefs to society. (a) In order to prevent the commission of offences of this kind, many statutes were passed from time to time, which, in addition to the proceedings at common law for assaulting and obstructing revenue officers when acting in the execution of their duties, (b) gave to those officers extraordinary powers and protections, and punished persons endeavouring to resist or evade the laws relating to the customs and excise. The recent statute 6 Geo. 4. c., 105. recites that the laws of the customs had become intricate, by reason of the great number of acts relating thereto, which had been passed through a long series of years; and that it was therefore highly expedient for the interests of commerce and the ends of justice, and also for affording convenience and facility to all persons who might be subject to the operation of those laws, or who might be'authorized to act in the execution thereof, that all the statutes then in force relating to the customs should be repealed; and that the purposes for which they had from time to time been made should be secured by new enactments, exhibiting more perspicuously and compendiously the various provisions contained in them: and then it proceeds to repeal all the statutes relating to smuggling.

The statute 6 Geo. 4. c. 108. recites this recent statute, and also that other laws relating to the customs have been made ; (c) and the expediency of making provisions to prevent or punish any infraction of such laws; and then proceeds to make various enactments relating to the forfeiture of vessels engaged in illegal traffic, and of uncustomed goods, which do not come within the scope and

(a) i Hawk. P. C. c. 48. s. 1. 4 Blac. 2 Chit. Crim. Law 127, et sequ. And Com. 155. 6 Bac. Abr. 258.

see Brady's case, 1 Bos. and Pul. 188, (6) See many precedents for misde- where it was admitted that the offence meanors at common law, in assaulting charged in the indictment was an ofand obstructing officers of excise and fence indictable at common law. customs, acting in the due execution (c) See 6 Geo. 4. c. 106, 107, of their offices ; 4 Wentw. 385, et sequ.

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