Of public nuisances in ge neral. Offensive trades and manufactures. The existence of the nui sance depends upon the num also upon its making the enjoyment of life and pro SECT. I. Of Public Nuisances in General. PUBLIC nuisances may be considered as offences against the public order and œconomical regimen of the state; being either the doing of a thing to the annoyance of all the King's subjects, or the neglecting to do a thing which the common good requires. (c) But the annoyance or neglect must be of a real and substantial nature: and the fears of mankind, though they may be reasonable, will not create a nuisance. (d) Offensive trades and manufactures may be public nuisances. A brewhouse, erected in such an inconvenient place that the business cannot be carried on without greatly incommoding the neighbourhood, may be indicted as a common nuisance: and so in the like case may a glasshouse, or swineyard. With respect to a candle rnanufactory, it has been holden, that it is no common nuisance to make candles in a town, because the needfulness of them shall dispense with the noisomeness of the smell: but the reasonableness of this opinion seems justly to be questionable, because, whatever necessity there may be that candles be made, it cannot be pretended that it is necessary to make them in a town. (e) An indictment will not lie for that which is a nuisance only to a few inhabitants of a particular place: as where, upon an indictment against a tinman for the noise made by him in carrying on ber of houses his trade, it appeared in evidence, that the noise only affected and concourse the inhabitants of three numbers of the chambers in Clifford's Inn, of people; and and that by shutting the windows the noise was in a great measure prevented, it was ruled by Lord Ellenborough, C. J. that the indictment could not be sustained, as the annoyance was, if any thing, a private nuisance. (f) But an indictment for a nuisance, by steeping stinking skins in water, laying it to be committed near the highway, and also near several dwelling houses, has been held sufficient: and the court said, that if a man erects a nuisance near the highway, by which the air thereabouts is corrupted, it must in its nature be a nuisance to those who are in the highway; and that therefore the indictment was well enough. (g) And an indictment was held good for a nuisance in erecting buildings, and making fires which sent forth noisome, offensive, and stinking perty uncom fortable. smokes, and making great quantities of noisome, offensive, and stinking liquors, near to the King's common highway, and near to the dwelling houses of several of the inhabitants, whereby the air was impregnated with noisome and offensive stinks and smells. (h) Upon the report of the evidence it appeared that the smell was not only intolerably offensive, but also noxious and hurtful, and made many persons sick, and gave them head-aches; and it was held that it was not necessary that the smell should be unwholesome, but that it was enough if it rendered the enjoyment of life and property uncomfortable; and further, that the existence of the nuisance depended upon the number of the houses and concourse of people, and was a matter of fact to be judged of by the jury. (i) But the carrying on of an offensive trade is not indictable, unless it be destructive of the health of the neighbourhood, or render the houses untenantable or uncomfortable. (k) noxious trade may be sanc It appears to have been ruled that a person cannot be indicted How far a for setting up a noxions manufactory in a neighbourhood in which other offensive trades have long been borne with, unless the in- tioned. convenience to the public be greatly increased. (1) And also that a person cannot be indicted for continuing a noxious trade which has been carried on at the same place for nearly fifty years. (m) But this seems hardly to be reconcileable to the doctrine, subsequently recognized, that no length of time can legalize a public nuisance, although it may supply an answer to the action of a private individual. (n) It should seem that in judging whether a thing is a public nuisance or not, the public good it does may, in some cases, when the public health is not concerned, be taken into consideration, to see if it outweighs the public annoyance. With respect to offensive works, though they may have been originally established under circumstances which would prima facie protect them against a prosecution for a nuisance, it seems that a wilful neglect to adopt established improvements, which would make them less offensive, may be indictable. bles. It seems, that erecting gunpowder mills, or keeping gunpowder Gunpowder magazines near a town, is a nuisance by the common law, for and combusti which an indictment or information will lie. (0) And the making, keeping, or carrying, of too large a quantity of gunpowder at one time, or in one place or vehicle, is prohibited by the statute 12 Geo. 3. c. 61. under heavy penalties and forfeiture. And it ap (h) Rex v. White and Ward, 1 Burr. 333. (i) Rex v. White and Ward, 1 Burr. 337. where see also that the word "noxious" not only means hurtful and offensive to the smell, but includes the complex idea of insalubrity and offensiveness. (k) Rex v. Davey and another, 5 Esp. 217. (1) Rex v. Bartholomew Neville, Peake 91. (m) Rex v Samuel Neville, Peake 93. (n) Weld v. Hornby, 7 East. 199. Rex v. Cross, 3 Campb. 227., and see post, 305. (0) Rex v. Williams, E. 12. W. an indictment against Roger Williams for keeping 400 barrels of gunpowder near the town of Bradford, and he was convicted. And in Rex v. Taylor, 15 Geo. 2. the Court granted an information against the defendant as for a nuisance, on affidavits of his keeping great quantities of gunpowder near Maldon in Surry, to the endangering of the church and houses where he lived. 2 Str. 1167. 2 Burn. Just. Gunpowder; where it is said, "or ra"ther it should have been expressed "to the endangering the lives of his majesty's subjects." 64 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. (q) 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. (?) 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. (t) Dalt. c. 56. Blackerby 170. 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 Bawdynuisance, 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. (2) 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. () 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 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. ct 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 Places of pub- 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 West"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) lic entertain ment unli censed to be deemed disorderly houses. (g) 5 Bac. Abr. Nuisances (A). I 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 50l. See also the 28 Gco. 3. c. 30. by which () 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 |