It is an indictable offence unlawfully and injuriously to carry a child infected with the small pox along a public highway, in which persons are passing, and near to the babitations of the king's subjects. the magistrates to stay at home. (i) 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) In a late case in the Court of King's Bench, relating to the small-pox infection, it was held that the exposing in the public highway, with a full knowledge of the fact, a person infected with a contagious disorder is a common nuisance, and as such the subject of an indictment. The defendant was indicted for carrying her child, while infected with the small-pox, along a public highway, in which persons were passing, and near to the habitations of the king's subjects; and having suffered judgment to go by default, it was moved on her behalf, in arrest of judgment, that it was consistent with the indictment that the child might have caught the disease, and that it was not shewn that the act was unlawful, as 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 (i) 2 (vulgo 1.) Jac. 1. c. 31. s. 7. 1 Hale 432, 695. 3 Inst. 90. (k) 1 Hale 432. (1) Id. ibid. (m) 1 Hawk. P. C. c. 52, 53. (n) Anon. 3 Atk. 750. In 2 Chitt. 1 Crim. Law 656, there is an indictment against an apothecary for keeping a common inoculating house near the church in a town: and the Cro. Circ. A. 365, is referred to. him, ought to be publicly exposed, to the endangering the health and lives of the rest of the subjects. (0) offence in an children, un 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- 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 in 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 the introduction of vaccination did not render the practice of inoculation for the small-pox unlawful; but that in all times it was unlawful and an indictable offence to expose persons infected with contagious disorders, and therefore liable to communicate them to the public, in a place of public resort. (q) The public health may be injured by selling unwholesome food; and it is an indictable offence to mix unwholesome ingredients in 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 prohibited, 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 (q) Rex v. Burnett, 4 M. and S. 272. The defendant was sentenced to six months' imprisonment. And it was dictable of always an infence to expose persons places of pub infected in lic resort. Injury to the public health by selling unwholesome food. 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. (r) (r) Rex v. Dixon, 3 M. and S. 11. And see 1 and 2 Geo. 4. c. 50. as to penalties upon bakers for using alum, &c. in making bread. CHAPTER THE TENTH. OF OFFENCES AGAINST THE REVENUE LAWS, RELATING 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) 1 Hawk. P. C. c. 48. s. 1. 4 Blac. Com. 155. 6 Bac. Abr. 258. (b) See many precedents for misdemeanors at common law, in assaulting and obstructing officers of excise and customs, acting in the due execution of their offices; 4 Wentw. 385, et sequ. 2 Chit. Crim. Law 127, et sequ. And 6 Gco. 4. to seizure, not Sect. 34. Officers making collusive seizures, or taking bribes, and persons offering the same, to forfeit 5007. Sect. 36. on board ves object of this treatise. But some of the enactments relating to the right to proceed to extremities, when necessary, for the purpose of seizing vessels liable to seizure, and the right to search for and seize goods liable to forfeiture, may properly be here mentioned. And the offence of making signals to smuggling vessels at sea, and the several offences declared to be felonies by this statute, require to be particularly noticed. 66 as The 6 Geo. 4. c. 108. s. 14. enacts, "that in case any vessel or boat, liable to seizure or examination under any act or law for "the prevention of smuggling, shall not bring to on being required "so to do, on being chased by any vessel in his Majesty's navy, "having the proper pendant ensign of his Majesty's ship hoisted, "or by any vessel employed for the prevention of smuggling, "under the authority of the lords commissioners of the Admiralty, "or the commissioners of his Majesty's customs, having a pendant "and ensign hoisted, of such description as his Majesty, by any "order in council, or by his royal proclamation under the great "seal of the united kingdom, shall have ordered and directed, or "shall from time to time in that behalf order and direct, it shall be "lawful for the captain, master, or other person, having the charge "or command of such vessel in his Majesty's navy, or employed aforesaid (first causing a gun to be fired as a signal), to fire at "or into such vessel or boat; and such captain, master, or other person acting in his aid or assistance, or by his direction, shall "be and he is hereby indemnified and discharged from any indict"ment, penalty, or action for damages, for so doing; and in case any person or persons shall be wounded, maimed, or killed, by 66 any such firing, and the said captain, master, or other person, and any person acting in his or their aid or assistance, or by his or "their direction, shall be sued, molested, or prosecuted, or shall be "brought before any of his Majesty's justices of the peace, or other "justices, or persons having competent authority, for or on account "of such firing, wounding, maiming, or killing as aforesaid, all and every such justice or justices, person or persons, is and are hereby authorized and empowered, enjoined and required, to "admit every such captain, master, or other person or persons, so "brought before him or them as aforesaid to bail; any law, usage, "or custom to the contrary notwithstanding." 66 66 The 34th section enacts, "that all vessels and boats, and all goods whatsoever liable to forfeiture, under this or any other act "relating to the revenue of customs, shall and may be seized in any place either upon land or water, by any officer or officers of "his Majesty's army, navy, or marines, duly authorized and on "full pay, or officers of customs or excise, or any person having "authority to seize from the commissioners of his Majesty's cus"toms or excise; and all vessels, boats, and goods, so seized shall, as soon as conveniently may be, be delivered into the care of the proper officer appointed to receive the same. The 36th section enacts, "that it shall and may be lawful to and "for any officer or officers of the army, navy, or marines, duly sels, and search "authorized and on full pay, or for any officer of customs, producing for prohibited and uncustom- "his or their warrant or deputation (if required), to go on board "any vessel which shall be within the limits of any of the ports of ed goods; |