Page images
PDF
EPUB

licensed (P);—and all of these practices are prohibited by the 23 & 24 Vict. c. 139(1),-amended by 24 & 25 Vict. c. 130, and 25 & 26 Vict. c. 98,-under heavy penalties and forfeitures (r). And the Acts last mentioned also require the manufacture of all fireworks, and of other preparations or compositions of an explosive nature, to be carried on in licensed places; and moreover prohibit, under a penalty, the sale of fireworks by persons unlicensed, or to any person apparently under the age of sixteen (s). The Acts also declare that if a squib or other firework be thrown or fired in any thoroughfare or public place, the offender shall be liable to a penalty of 51.(t). 7. Eaves-dropping,-or the offence committed by such as loiter under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales,- is a common nuisance ; and the offenders are indictable at sessions, and are liable to be fined and bound over to their good behaviour (u). 8. [Lastly, we must enumerate among nuisances noticed in our law, (though in practice it has long ceased to be the subject of prosecution,) that of being a common scold. For which offence the communis rixatrix, (for our law confines it to the feminine gender,) might

(P) By 25 & 26 Vict. c. 66, regu- the seizure of gunpowder, seo 3 & lations of a similar description are 4 Will. 4, c. 19, s. 36; 2 & 3 Vict. made with respect to the carriage c. 47, s. 35; 9 & 10 Vict. c. 25. As by sea, or deposit, of a highly in- to the manufacture of fire-arms, flammable substance called petro- 53 Geo. 3, c. 115. As to public lcum; and by 29 & 30 Vict. c. 69, nuisances arising from the keeping s. 8, most of the provisions of the or using of dangerous materials Petroleum Act are made to apply generally, or from practising danalso to nitro-glycerine. As to

gerous games, see Williams v. East which see 32 & 33 Vict. c. 113; 34 India Company, 3 East, 200, 201; & 35 Vict. c. 105; 36 & 37 Vict. R. v. Moore, 3 B. & Ad. 184. c. 75; Beck v. Stringer, Law Rep., (8) Scc Bliss, app., Lilley, resp., 6 Q. B. 497; Jones v. Cook, ib. 3 B. & Smith, 128. 505. (See also sup. vol. II. p. 86.) (t) See 2 & 3 Vict. c. 47, s. 4,

(7) See Biggs v. Mitchell, 2 B. & and The Qucen v. Bennett, 28 L. J. Smith, 523.

(M. C.) 27, as to this offence within (r) See also 54 Geo. 3, c. 159, the metropolitan district. S. 6; 14 & 15 Vict. c. 67. As to (11) 4 Bl. Com. p. 168.

[be indicted (x); and, if convicted, she might be sentenced to be placed in a certain engine of correction called the trebucket, castigatory, or cucking stool; which, in the Saxon language, is said to signify the scolding stool; though now it is frequently corrupted into ducking stool ; because the residue of the judgment was, that, when so placed therein, she should be plunged in the water for her punishment(y).]

Such is the general state of the law, with respect to common nuisances; but it is material to add here that, as to all those species of them which tend to affect the public health, they are now very specially provided against by the several Acts for improving the sanatory condition of the people,-and amongst these we may particularize the Public Health Act, 1848 (11 & 12 Vict. c. 63), the Local Government Acts, 1858 and 1861 (21 & 22 Vict. c. 98, and 24 & 25 Vict. c. 61); the Diseases Prevention Act, 1855 (18 & 19 Vict. c. 116); the Nuisances Removal Act for England, 1855 (18 & 19 Vict. c. 121); and the Public Health Act, 1872 (35 & 36 Vict. c. 79). By the provisions of these Acts respectively, and of those passed for their amendment, a great variety of nuisances are specified and prohibited, under the penalties of misdemeanor in some instances, and in others under pecuniary penalties recoverable before the justices of the peace.

III. (We shall next notice that offence with regard to the holy estate of matrimony, which is called bigamy (z);

(2) R. v. Foxby, 6 Mod. 213. Lyons, A.D. 1274, held under Pope

(y) Hawk. P. C. b. 1, c. 75, s. 5; Gregory the tenth, were "omni pri3 Inst. 219.

vilegio clericali nudati, et coërcioni (3) It may be incidentally ob- fori secularis addicti.”—(6 Decreserved here that “bigamy,” accord- tal. 1. 12.) This canon was adopted ing to the canonists, consisted in and explained in England by 4 Edw. marrying two virgins successively, 1, st. 3, c. 5; and bigamy thereupon one after the death of the other; or in became no uncommon counterplea once marrying a widow. Such were to the claim of benefit of clergy. esteemed incapable of orders, &c.; (M. 40 Edw. 3, 42; M. 11 Hen. 4, 11, and by a canon of the council of 48; M. 13 Hen. 4, 6; Staundf. P. C.

[and this consists of a second marriage (a), having a former husband or wife still living (6). Such second marriage is simply void, and a mere nullity, by the ecclesiastical law of England (c): and yet the legislature has thought it just to make it felony; by reason of its being so great a violation of the public economy and decency of a well-ordered State. For polygamy can never be endured under any rational civil establishment, whatever specious reasons may be urged for it by the eastern nations; the fallaciousness of which has been fully proved by many sensible writers; but in northern countries, the very nature of the climate seems to reclaim against it;—it never having obtained in this part of the world, even from the time of our German ancestors, who, as Tacitus informs us,“ prope soli barbarorum, singulis uxoribus contenti sunt(d).] And with us in England, it is enacted by 24 & 25 Vict. c.

134.) The cognizance of the plea of bigamy was declared by stat. 18 Edw. 3, st. 3, c. 2, to belong to the court christian, like that of bastardy. But by stat. 1 Edw. 6, c. 12, s. 16, bigamy was declared to be no longer an impediment to the claim of clergy. See Dal. 21; Dy. 201. As to benefit of clergy, vide post, c. XXIII.

(a) Blackstone says (vol. iv. p. 163) that the offence of bigamy " is more justly denominated poly

gamy, or having a plurality of " wives at once:” and he objects to the term bigamy as corruptly applied to the case; because it "pro“perly signifies being twice mar“ ried.” The correctness of this criticism, however, seems questionable. For whatever the number of marriages that may have taken place, the substance of the charge always is, that, having a lawful wife, (or husband,) still living, the offender marries a second time ;any intervening marriage being

wholly immaterial and out of the case so far as the prosecution is concerned.

(6) 3 Inst. 88. It is to be observed, that, for the purposes of the 20 & 21 Vict. c. 85, “to amend “ the law relating to divorce and “ matrimonial canses in England," the term “bigamy” is to be taken to mean “the marriage of any per

son being married, to any other " person during the life of the “ former husband or wife, whether “the second marriage shall have " taken place within the dominions “ of her Majesty, or elsewhere."

(c) It has recently been held in the court of divorce that cohabitation in a country where polygamy is lawful between those wbo profess a faith which allows of polygamy, is not a marriage such as will be recognized in the English courts. See Hyde v. Hyde and Woodmansee, Law Rep., 1 P. & D. 130.

(d) De Mor. Germ, 18.

100 (e), that whosoever, being married, shall marry any other person during the life of the former husband or wife, (whether the second marriage shall have taken place in England, Ireland or elsewhere,) shall be guilty of felony; and is liable to penal servitude for not more than seven nor less than five years, or to be imprisoned with or without hard labour, for not more than two years (f). It is to be observed, however, that the first wife, in this case, shall not be admitted as a witness against her husband, because she is the true wife ; though the second may, because she is indeed no wife at all (9); and so vice versa of a second husband : and it is held necessary to prove that the first marriage was duly solemnized ; mere proof of cohabitation not being sufficient(h). Moreover, the above enactment does not extend to the following cases(i). 1. That of a second marriage contracted out of England or Ireland, by any other than a subject of Her Majesty (k). 2. That of a person marrying a second time, whose husband or wife shall have been continually absent for the space of seven years immediately preceding the second marriage, and shall not have been known by such person to be living within that time (1). 3. That of a person who, at the time of such second marriage, shall have been divorced from the bond of the first marriage.

(e) This statute describes itself, in its title, as one relating to offences against the person.

But bigamy is classed by Blackstone (and the classification has been followed in the present work) as an offence against the public police or economy-to which division it seems properly to belong, in so far at least as the purposes of the student are concerned.

(J) 24 & 25 Vict. c. 100, s. 57. (See 27 & 28 Vict. c. 47.) The offender may also, if the court see fit, be bound over with sareties to keep

the peace (sect. 71).

(9) 1 Hale, P. C. 693; 1 East, P. C. c. 12, s. 9; Peat's case, 2 Lewin, 288.

(h) See R. v. James, R. R. C. C. 17; R. v. Morton, ibid. 19; R. v. Butler, ibid. 61; R. v. Bowen, 2 C. & K. 227.

(i) 24 & 25 Vict. c. 100, s. 57.

(k) As to this exception, see Topping's case, 1 Dearsley's C. C. R. 647.

(1) See The Queen v. Briggs, 26 L. J. (M. C.) 7; The Queen v. John Curgerwen, Law Rep., 1 C. C. 1.

4. That of a person whose former marriage shall have been declared void, by the sentence of any court of competent jurisdiction (o). In reference, however, to the second of these cases, it is to be observed that the second marriage is, under the circumstances referred to, a nullity, although it be attended with no penal consequences.

IV. [Lewdness is also an offence against the public economy, when of an open and notorious character; as by frequenting houses of ill-fame, which is an indictable offence; or by some grossly scandalous and public indecency; for which the punishment at common law was fine and imprisonment. And in the year 1650, when the republican party had the ascendant, the repeated act of keeping a brothel, or committing fornication, was, upon a second conviction, made felony without benefit of clergy (p). But at the Restoration, when men, from an abhorrence of what they deemed the hypocrisy of the late times, fell into a contrary extreme of licentiousness, it was not thought proper to renew a law of such unfashionable rigour. And the offence of lewdness was then abandoned to the feeble coercion of the spiritual court, according to the rules of the canon law: a law which has treated the offence of incontinence with a great deal of tenderness and lenity ; owing perhaps to the constrained celibacy of its first compilers (9).] To this head may be also properly referred, the offences of a public and inde

(0) Duchess of Kingston's case, 11 St. Tr. 262; 1 Leach, 146; Hawk. P. C. b. 1, c. 42, s. 11.

(p) Scob. 121. It is remarked by Blackstone (vol. iv. p. 65), that at the period alluded to in the text, “ incest and wilful adultery

use.

were made capital crimes.” This offence, and that of drunkenness, are treated of by him as offences

against God and religion.

(2) Proceedings, under the canon law, for incontinency, are out of

On the other hand, modern provisions have been framed (vide sup. p. 92) to repress the offence of fraudulently procuring the defilement of young females, by prosecutions in the ordinary criminal courts.

« EelmineJätka »