Disorderly inns, &c. pears, that persons putting on board a ship an article of a combustible and dangerous nature, without giving due notice of its contents, so as to enable the master to use proper precautions in the stowing of it, will be guilty of a misdemeanor. The case did not come before the court of King's Bench directly upon its criminal nature: but that court, in adverting to the conduct imputed to the defendants, declared it to be criminal; and said, " in order "to make the putting on board wrongful the defendants must be "conusant of the dangerous quality of the article put on board; "and if, being so, they yet gave no notice, considering the probable danger thereby occasioned to the lives of those on "board, it amounts to a species of delinquency in the persons "concerned in so putting such dangerous article on board, for "which they are criminally liable, and punishable as for a mis"demeanor at least." (p) All disorderly inns or ale-houses, bawdy-houses, gaming-houses, play-houses, unlicensed or improperly conducted, booths and stages for rope-dancers, mountebanks, and the like, are public nuisances, and may therefore be indicted. (g) It seems to be agreed, that the keeper of an inn may, by the common law, be indicted and fined as being guilty of a public nuisance, if he usually harbour thieves, or persons of scandalous reputation, or suffer frequent disorders in his house, or take exorbitant prices, or set up a new inn in a place where there is no manner of need of one, to the hindrance of other ancient and well governed inns, or keep it in a place in respect of its situation wholly unfit for such a purpose. (r) And it seems also to be clear that if one who keeps a common inn refuse either to receive a traveller as a guest into his house, or to find him victuals or lodging, upon his tendering him a reasonable price for the same, he is not only liable to render damages to the party in an action, but may also be indicted and fined at the suit of the king; and it is also said, that he may be compelled by the constable of the town to receive and entertain such a person as his guest; and that it is in no way material whether he have any sign before his door or not, if he make it his common business to entertain passengers. (s) The keeping of an inn is no franchise, but a lawful trade when not exercised to the prejudice of the public; and therefore there is no need of any licence or allowance for such erection. (t) But if an inn use the trade of an alehouse, as almost all innkeepers do, it will be within the statutes made concerning alehouses. (u) (p) Williams v. The East India (r) 1 Hawk. P. C. c. 78. s. 1. And 21. (s) 1 Hawk. P. C. c. 78. s. 2. (1) Dalt. c. 56. Blackerby 170. 1 Burn. Just. tit. Alehouses, I. 3 Bac. Abr. Inns, &c. (A) (u) 1 Burn. Just. Alehouses, where those statutes are collected. Before the stat. 5 and 6 Edw. 6. c. 25. it was lawful for any one to keep an alehouse without licence, for it was a means of livelihood which any one was free to follow. But if it was so kept as to be disorderly, it was indictable as a nuisance. 1 Salk. 45. 1 Hawk. P. C. c. 78. s. 52. in marg. houses. It is clearly agreed that keeping a bawdy-house is a common Bawdy-. nuisance, as it endangers the public peace by drawing together dissolute and debauched persons; and also has an apparent tendency to corrupt the manners of both sexes, by such an open profession of lewdness. (w) And it has been adjudged that this is an offence of which a feme covert may be guilty as well as if she were sole, and that she, together with her husband, may be convicted of it; for the keeping the house does not necessarily import property, but may signify that share of government which the wife has in a family as well as the husband; and in this she is presumed to have a considerable part, as those matters are usually managed by the intrigues of her sex. (x) If a person be only a lodger, and have but a single room, yet if she make use of it to accommodate people in the way of a bawdy-house, it will be a keeping of a bawdy-house as much as if she had a whole house. (y) But an indictment cannot be maintained against a person for being a common bawd, and procuring men and women to meet together to commit fornication the indictment should be for keeping a bawdy-house. (*) For the bare solicitation of chastity is not indictable, but cognizable only in the ecclesiastical courts. (a) houses. It is clearly agreed, that all common gaming-houses are nui- Common sances in the eye of the law, being detrimental to the public, as gamingthey promote cheating and other corrupt practices; and incite to idleness, and avaricious ways of gaining property, great numbers whose time might otherwise be employed for the good of the community. (b)~~ And in a late case it was held, that the keeping a common gaming-house, and for lucre and gain unlawfully causing and procuring divers idle and evil disposed persons to frequent and come to play together at a game called "rouge et noir," and permitting the said idle and evil disposed persons to remain playing at the same game for divers large and excessive sums of money, is an indictable offence at common law. (i) It has also been adjudged, that it is an offence for which a feme covert may be indicted; for, as she may be concerned in acts of bawdry, as has been observed above, so she may be active in promoting gaming, and furnishing the guests with conveniences for that purpose. (r) There are also certain penalties imposed by statutes upon the offence of keeping a common gaming-house. (d) An indictment against a defendant for that he did keep a common, ill-governed, and disorderly house, and in the said house for (w) 3 Inst. c. 93. p. 204. 1 Hawk. P. C. c. 74. aud c. 75. s. 6. 5 Bac. Abr. Nuisances (A). 3 Burn. Just. Lewdness and Nuisance. (x) Reg. v. Williams, 1 Salk. 383. ante, 16. (y) Rex v. Pierson, 2 Lord Raym. 1197. 1 Salk. 382. (z) Id. Ibid. (a) 1 Hawk. P. C. c. 74. 3 Burn. Just. Lewdness. (b) 5 Bac. Abr. Nuisances (A). 1 Hawk. P. C. c. 75. s. 6. Rex v. Dixon, 10 Mod. 336. (i) Rex v. Rogier and Humphry, 1 B. and C. 272. And Holroyd, J. said, (c) Rex v. Dixon, Trin. 2 Geo. 1. 5 (d) 1 Hawk. P. C. c. 92. s. 14. et sequ. And see 25 Geo. 2. c. 36. s. 5. 42 Geo. 3. c. 119. And see post, p. 304, as to lotteries and little goes. his lucre, &c. certain persons of ill-name, &c. to frequent and come together, did cause and procure, and the said persons in the said house to remain fighting of cocks, boxing, playing at cudgels, and misbehaving themselves, did permit, has been held to be good. (e) And it seems that the keeping of a cockpit is not only an indictable offence at common law, but that a cockpit is considered as a gaming-house within the statute 33 Hen. 8. c. 9. s. 11. which imposes a penalty of forty shillings per day upon such houses; and therefore, on a conviction on an indictment at common law, the court will measure the fine by inflicting forty shillings for each day, according to the number of days such cockpit was kept open. (ƒ) Playhouses. It seems to be the better opinion that playhouses, having been originally instituted with a laudable design of recommending virtue to the imitation of the people, and exposing vice and folly, are not nuisances in their own nature, but may only become such by accident; as, where they draw together such numbers of coaches or people, &c. as prove generally inconvenient to the places adjacent; or, when they pervert their original institution by recommending vicious and loose characters, under beautiful colours, to the imitation of the people, and make a jest of things commendable, serious, and useful. (g) Players and playhouses are now put under salutary regulations by the provisions of several statutes. (h) And places of public entertainment in the neighbourhood of London, if not properly licensed, are to be deemed disorderly houses by the statute 25 Geo. 2. c. 36. (i) which, reciting the multitude of places of entertainment for the lower sort of people as a great cause of thefts and robberies, enacts, "that any house, room, garden, or "other place, kept for public dancing, music, or other public en"tertainment of the like kind in the cities of London and West66 minster, or within twenty miles thereof," without a licence from the last preceding Michaelmas quarter sessions, under the hands and seals of four of the justices, "shall be deemed a disorderly "house or place." The act then particularizes the mode of granting the licence, makes it lawful for a constable or other person, authorized by warrant of a justice, to enter such house or place, and to seize every person found therein; and makes every person keeping such house, &c. without a licence liable to a penalty of 100%., and otherwise punishable as the law directs in cases of disorderly houses. (k) Places of pub lic entertain ment unlicensed to be deemed disorderly houses. 1 (g) 5 Bac. Abr. Nuisances (A). Hawk. P. C. c. 75. s. 7. And as to the performance of an obscene play, see ante, 220, note (d). (h) The 10 Geo. 2. c. 28. enacts that persons performing any entertainment of the stage without authority or licence, shall be deemed rogues and vagabonds, and liable to the penalties of 12 Ann. stat. 2. c. 23. (an act repealed, but re-enacted by 17 Geo. 2. c. 5.) and also to a penalty of 501. See also the 28 Geo. 3. c. 30. by which justices of the peace at their quarter sessions may license theatrical representations occasionally, under certain restrictions The words "entertain"ment of the stage," in 10 Geo. 2. c. 28. have been held not to extend to an exhibition of tumbling. Rex v. Handy, 8 T. R. 286. By special acts of Parliament playhouses are permitted to be erected in particular places. (i) Made perpetual by the 28 Geo. 2. c. 19. (k) By s. 3. this act is not to extend to the theatres in Drury Lane and Covent Garden, or the King's Theatre in the Haymarket; nor to perform 66 &c. It seems also to be the better opinion, that all common stages for Stages for rope-dancers, &c. are nuisances, not only because they are great rope-dancers, temptations to idleness, but also because they are apt to draw together numbers of disorderly persons, which cannot but be very inconvenient to the neighbourhood. () or other dis The proceedings in respect of prosecutions against persons Proceedings in keeping bawdy-houses, gaming-houses, or other disorderly houses, prosecutions are facilitated by 25 Geo. 2. c. 36. by which it is enacted, that if against persons for keeptwo inhabitants of any parish or place, paying scot and lot, give ing bawdynotice in writing to the constable, of any person keeping a bawdy- houses, gamhouse, gaming-house, or any other disorderly house, in such ing-houses, parish or place, the constable shall go with such inhabitants to a orderly justice; and shall, upon such inhabitants making oath before the houses. 25 justice that they believe the contents of the notice to be true, and Geo. 2. c. 36. entering into a recognizance in twenty pounds each to give material evidence against the person for such offence, enter into a recognizance in the sum of thirty pounds to prosecute with effect at the next sessions or assizes as to the justice shall seem meet. And provision is also made for the payment by the overseers of the charges of prosecution to the constable, and ten pounds on conviction to each of the two inhabitants. (m) The person keeping such bawdy-house, &c. is also to be bound over to appear at the sessions or assizes. The eighth section of this statute, reciting that by reason of the Persons actmany subtle and crafty contrivances of persons keeping bawdy- ing as keepers houses, &c. it is difficult to prove who is the real owner or keeper, houses to of disorderly enacts, that any person "who shall appear, act, or behave as be deemed "master or mistress, or as the person having the care, govern- keepers. "ment, or management, of any bawdy-house, gaming-house, or "other disorderly house, shall be deemed and taken to be the "keeper thereof, and shall be liable to be prosecuted and punished as such, notwithstanding he or she shall not in fact be the real owner or keeper thereof." By the ninth section any person Witness. may give evidence upon such prosecution, though an inhabitant of the parish or place, and though he may have entered into the before-mentioned recognizance. The tenth section enacts, that Certiorari. no indictment shall be removed by certiorari, but shall be tried at the same sessions or assizes where it shall have been preferred (unless the court shall think proper, upon cause shewn, to adjourn the same,) notwithstanding any such writ or allowance. Upon this last clause it has been decided, that the general words do not restrain the crown from removing the indictment by certiorari ; there being nothing in the act to shew that the Legislature intended that the crown should be bound by it. (n) Any number of persons may be included in the same indict- Indictment ment for keeping different disorderly houses, stating that they and evidence "severally" kept, &c. such houses. (o) It seems that it is neces ances and public entertainments carried on under letters patent, or licence of the crown, or licence of the lord chamberlain. (1) 5 Bac. Abr. Nuisances (A). 1 Hawk. P. C. c. 75. s. 6. And see ante, P. 248, note (g), as to stage-players being indicted for a riot and unlawful (n) Rex v. Davies and others, 5 T. (0) 2 Hale 174, where it is said, "It is "common experience at this day that as to disorderly houses. Open lewdness and indecent exposure. Eaves droppers. Common scold. sary to state where the house is situate, and the time, so as to make a particular statement of the offence, which is the keeping of the house. (p) But particular facts need not be stated; and though the charge is thus general, yet at the trial evidence may be be given of particular facts, and of the particular time of doing them. (q) It is not necessary to prove who frequents the house, for that may be impossible: but if any unknown persons are proved to be there behaving disorderly, it is sufficient to support the indictment. (r) : In general, all open lewdness grossly scandalous is punishable by indictment at the common law and it appears to be an established principle that whatever openly outrages decency, and is injurious to public morals, is a misdemeanor. (s) In a late case it was held to be an indictable offence for a man to undress himself on the beach and to bathe in the sea near inhabited houses, from which he might be distinctly seen; although the houses had been recently erected, and, until their erection, it had been usual for men to bathe in great numbers at the place in question. M'Donald, C. B., ruled, that whatever place becomes the habitation of civilized men, there the laws of decency must be enforced.(t) And to shew a being of unnatural and monstrous shape for money is a misdemeanor. (u) Eaves droppers, or such as listen under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance, and presentable at the court leet; or are indictable at the sessions, and punishable by fine and finding sureties for their good behaviour.(w) 66 A common scold, communis rixatrix, (for our law confines it to the feminine gender) is a public nuisance to her neighbourhood, and may be indicted for the offence; and, upon conviction, punished by being placed in a certain engine of correction called the trebucket, or cucking stool. (a) And she may be convicted with"twenty persons may be indicted for "keeping disorderly houses or bawdy "houses; and they are daily convicted upon such indictments, for the word "separaliter makes them several in"dictments." And in Rex v. Kingston and others, 8 East. 41., it was held that it is no objection on demurrer that several different defendants are charged in different counts of an indictment for offences of the same nature; though it may be a ground for application to the discretion of the court to quash the indictment. (p) By Buller, J. in J'Anson v. Stuart, 1 T. R. 754. (q) By Lord Hardwicke, in Clarke . Periam, 2 Atk, 339. (r) J'Anson v. Stuart, 1 T. R. 754., by Buller, J. (s) 1 Hawk. P. C. c. 5. s. 4. 3 Burn. Just. Lewdness. 4 Bla. Com. 65, (n). 1 East. P. C. c. 1. s. 1. (1) Rex v. Crunden, 2 Campb. 89. And the Court of King's Bench, when the defendant was brought up for judgment, expressed a clear opinion that the offence imputed to him was a misdemeanor, and that he had been properly convicted. In Rex v. Sir Chas. Sedley, Sid. 168., 1 Keb. 620. S. C. the defendant being indicted for shewing himself naked from a balcony in Covent Garden to a great multitude of people, confessed the indictment; and was sentenced to pay a fine of 2000 marks, to be imprisoned a week, and to give security for his good behaviour for three years. (u) Harring v. Walrond, 2 Cha. Ca. 110, the case of a monstrous child that died, and was embalmed to be kept for shew, but was ordered by the Lord Chancellor to be buried, cited in Burn. Just. Nuisance.) (w) 4 Bla. Com. 167, 168. 1 Burn. Just. Eaves Droppers. (x) 1 Hawk. P. C. c. 75. s. 14. 4 Bla, |
