3. wandering by soldiers or mari.. ners, a felony without clergy; 4. remaining in England by Egyptians or gypsies, a felony without clergy; import demeanor; 3. A third species of felony against the good order and economy of the kingdom, is by idle soldiers and mariners wandering about the realm, or persons pretending so to be, and abusing the name of that honourable profession (g). Such a one not having a testimonial or pass from a justice of the peace, limiting the time of his passage; or exceeding the time limited for fourteen days, unless he falls sick; or forging such testimonial; is by statute 39 Eliz. c. 17, made guilty of felony without benefit of clergy. This sanguinary law, though in practice deservedly antiquated, still remains a disgrace to our statute-book: yet attended with this mitigation, that the offender may be delivered, if any honest freeholder or other person of substance will take him into his service, and he abides in the same for one year; unless licensed to depart by his employer, who in such case shall forfeit ten pounds (10) (11). 4. Outlandish persons calling themselves Egyptians, or gypsies, are another object of the severity of some of our unrepealed statutes. These are a strange kind of commoning such, a mis. wealth among themselves of wandering impostors and jugglers, who were first taken notice of in Germany about the beginning of the fifteenth century, and have since spread themselves all over Europe. Munster (h), who is followed and relied upon by Spelman (i) and other writers, fixes the time of their first appearance to the year 1417; under passports, real or pretended, from the emperor Sigismund, king of Hungary. And pope Pius II., who died A. D. 1464, men(g) 3 Inst. 85. (i) Gloss. 193. (h) Cosmogr. 1. 3. (10) In the Vagrant Act, the 17 Geo. II. c. 5, there is an exception in favour of soldiers having certificates from their officers, or the secretary at war; and also in favour of mariners having a testimonial from a justice of peace, who were thus licensed to beg. But by 32 Geo. III. c. 45, such certificates and testimonials were very properly declared to be null and void, and that all soldiers and mariners who should wander abroad and beg, should be deemed rogues and vagabonds within the meaning of the Vagrant Act.-CH. (11) This Act is now repealed by 52 Geo. III. c. 31. Soldiers, sailors, and mariners, with their wives, are relieved against the penalties of the different Vagrant Acts by 43 Geo. III. c. 61; vide Annual Mutiny Act, and 58 Geo. III. c. 92. It was held that a common soldier could not be a vagrant under the repealed statute of 17 G. 2. Soldier's case, 1. Wils. 331; and see Rex v. Patchett, 5 East, 339; 1 Smith, 547; and Rex v. Brown, 8 T. R. 26. tions them in his history as thieves and vagabonds, then wandering with their families over Europe, under the name of Zigari; and whom he supposes to have migrated from the country of the *Zigi, which nearly answers to the modern [*166] Circassia. In the compass of a few years they gained such a number of idle proselytes, who imitated their language and complexion, and betook themselves to the same arts of chiromancy, begging, and pilfering, that they became troublesome and even formidable to most of the states of Europe. Hence they were expelled from France in the year 1560, and from Spain in 1591 (k). And the government in England took the alarm much earlier; for, in 1530, they are described by statute 22 Hen. VIII. c. 10, as "outlandish people, calling themselves Egyptians, using no craft nor feat of merchandize, who have come into this realm and gone from shire to shire and place to place in great company, and used great, subtle, and crafty means to deceive the people; bearing them in hand, that they by palmestry could tell men's and women's fortunes; and so many times by craft and subtlety have deceived the people of their money, and also have committed many heinous felonies and robberies." Wherefore they are directed to avoid the realm, and not to return under pain of imprisonment, and forfeiture of their goods and chattels : and, upon their trials for any felony which they may have committed, they shall not be entitled to a jury de medietate lingua. And afterwards, it is enacted by statute 1 and 2 Ph. and M. c. 4 (12), and 5 Eliz. c. 20, that if any such persons shall be imported into this kingdom, the importer shall forfeit 40%. And if the Egyptians themselves remain one month in this kingdom; or if any person, being fourteen years old, whether natural-born subject or stranger, which hath been seen or found in the fellowship of such Egyptians, or which hath disguised him or herself like them, shall remain in the same one month, at one or several times; it is felony without benefit of clergy; and Sir Matthew Hale informs us (1), that at one Suffolk assizes no less than thirteen gypsies were exe (k) Dufresne, Gloss. I. 200. (1) 1 Hal. P. C. 671. (12) 1 & 2 P. & M. c. 4, is repealed by the 1 Geo. IV. c. 116, as relates to the infliction of capital pu nishment. Such parties are now pu- cuted upon these statutes a few years before the restoration. [*167] But, to the honour of our *national humanity, there are no instances more modern than this, of carrying these laws into practice. 5. common nuisances; as, disorderly fireworks, eves dropping, comall misdemea mon scolding, nors. 5. To descend next to offences, whose punishment is short annoyances in of death. Common nuisances are a species of offences against highways, &c., offensive trades, the public order and economical regimen of the state; being houses, lotteries, 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 (m). The nature of common nuisances, and their distinction from private nuisances, were explained in the preceding volume (n); when we considered more particularly the nature of the private sort, as a civil injury to individuals. I shall here only remind the student, that common nuisances are such inconvenient or troublesome offences, as annoy the whole community in general, and not merely some particular person; and therefore are indictable only, and not actionable; as it would be unreasonable to multiply suits, by giving every man a separate right of action, for what damnifies him in common only with the rest of his fellow-subjects. Of this nature are, 1. Annoyances in highways, bridges, and public rivers, by rendering the same inconvenient or dangerous to pass: either positively, by actual obstructions; or, negatively, by want of reparations. For both of these, the person so obstructing, or such individuals as are bound to repair and cleanse them, or, in default of these last, the parish at large, may be indicted, distrained to repair and amend them, and in some cases fined. And a presentment thereof by a judge of assize, &c. or a justice of the peace, shall be in all respects equivalent to an indictment (o). (13). Where there is an house erected, or an enclosure made, upon any part of the king's demesnes, or of an highway, or common street, or public water, or such like public things, it is properly called a purpresture (p) (14). 2. All those kinds of nuisances, such (m) 1 Hawk. P. C. 197. (n) Vol. III. page 216. (13) By the new highway act, 5 & 6 W. IV. c. 50, the proceeding by presentment for the non-repair of highways is abolished, and a summary mode of proceeding before magistrates substituted. (p) Co. Litt. 277, from the French pourpris, an enclosure. (14) By 7 & 8 Geo. IV. c. 30, § 13, pulling down any public bridge, or doing any injury thereto, with intent to obstruct the thoroughfare, is punishable as a felony with transportation as offensive trades and manufactures, which when injurious to a private man are actionable, are, when detrimental to the public, *punishable by public prosecution and subject to fine [*168] according to the quantity of the misdemesnor; and particularly the keeping of hogs in any city or market-town is indictable as a public nuisance (q) (15). 3. All disorderly inns (q) Salk. 460. for life, or not less than seven years, or imprisonment not exceeding four years, and one, two, or three public whippings if a male offender; vide ante 144. And by the preceding § 12, cutting piles, chalk, or other materials, fixed in the ground to secure any sea bank or wall, or the bank of any river, canal, or marsh, or drawing up any floodgate with intent to commit mischief, or to obstruct the navigation of the same, is punishable with transportation for seven years, or imprisonment, not exceeding two years, with private or public whipping for male offenders, at the discretion of the court, in addition. (15) An indictment, as for a nuisance, lies for placing a person in a footway in a public street in London, to deliver out printed bills of the defendant's occupation, whereby the footway is obstructed; Rex v. Sarmon, I Burr. 516. So, for keeping stagecoaches plying in the public streets; Rex v. Cross, 3 Camp. 224. So, for cutting logs of timber in a public street; Rex v. Jones, id. 230. So, for erecting buildings near a highway and dwelling-houses, and there making spirit of sulphur, whereby the air is poisoned; Rex v. White, 1 Burr. 333. So, for obstructing one side of a highway by means of waggons loading and unloading for several hours at a time; Rex v. Russell, 6 East, 427; 2 Smith, 424. So, for slaughtering horses within a certain distance of dwellinghouses; Rer v. Watts, 2 C. & P. 486. So for conveying the refuse of gas into a public river, whereby the fish are destroyed; Rex v. Medley, 6 C. & P. 292. So for exhibiting effigies at the windows of a house in a public street, and thereby attracting a crowd to look at them, which causes the footway to be obstructed; Rex v. Carlile, 6 C. & P. 636. To support an indictment for a nuisance, it is not necessary that the smells produced by it should be injurious to the health, it is sufficient if they are offensive to the senses; Rex v. Neil, 2 C. & P. 485. But it must appear either that the nuisance is destructive to the general health of the inhabitants, or that it renders their dwellings uncomfortable or untenantable; Rex v. Davey, 5 Esp. 217. And an indictment will not lie for that which is a nuisance only to a few inhabitants of a particular place; Rex v. Lloyd, 4 Esp. 200. Where the manufacture had been carried on near fifty years in the neighbourhood, the defendant was acquitted; Rex v. Neville, Peake, 93. So a man setting up a noxious trade in a neighbourhood where such trade has been long carried on, is not indictable, unless the noxious vapour is greatly increased in his manufacture; Id. 96. And if a party set up a noxious trade remote from houses and public roads, and afterwards new houses are built, and new roads constructed near it, he may continue his trade, although it be a nuisance to persons inhabiting those houses and frequenting those roads; Rex v. Cross, 2 C. & P. 483. Steamengines may be indictable as nuisances. The 1 & 2 Geo. IV. c. 41, after reciting that injury is sustained from the improper construction, as well as from the negligent use of furnaces employed in the working of engines by steam, and that every such nuisance being of or alehouses, bawdy-houses, gaming-houses, stage-plays unlicensed, booths and stages for rope-dancers, mountebanks, and the like, are public nuisances, and may upon indictment be suppressed and fined (r) (16). Inns, in particular, being intended for the lodging and receipt of travellers, may be indicted, suppressed, and the innkeepers fined, if they refuse to entertain a traveller without a very sufficient cause: for thus to frustrate the end of their institution is held to be dis(r) 1 Hawk. P. C. 198, 225. a public nature is abateable by indictment, enacts, that if it shall appear to the court by which judgment ought to be pronounced, in case of conviction in any such indictment, that the grievance may be remedied by altering the construction of the furnace, it shall be lawful to the court, without the consent of the prosecutor, to make such order, touching the premises, as shall be by the said court thought expedient for preventing the nuisance in future, before passing final sentence upon the defendant. Proviso, not to extend to owners of furnaces erected solely for working mines. The court may award costs to the prosecutor to be paid by the party convicted. is an indictable offence at common law, (as are the other offences above mentioned,) and a cockpit has been held to be a gaming house within the 33 Hen. VIII. c. 9, § 11; 1 Russell, 300. Bawdy-houses and gaming-houses are clearly nuisances in the eye of the law; 1 Russell, 299; Rex v. Higginson, 2 Burr. 1232; Rex v. Rogier, 2 D. & R. 431; 1 B. & C. 272. Playhouses are not in themselves nuisances, though by neglect or mismanagement they may be rendered so; 1 Hawk. P. C. c. 32, $ 7. But by 10 Geo. II. c. 28, all places for the exhibition of stage entertainments must be licensed; Rex v. Handy, 6 T. R. 286, where it was held that tumbling was not a stage entertainment within that Act,) and, by 25 Geo. II. c. 36, all unlicensed places kept for such entertainments are to be deemed disorderly houses. A house kept for the purposes of private dancing has been held to be within that Act; Clarke v. Searle, 1 Esp. 25. Though the keeper of it do not take money at the door; Archer v. Willingine, 4 Esp. 186. So also has a room in which musical performances were regularly exhibited, though not kept solely for that purpose; Bellis v. Beal, 2 Esp. 592. But a room kept by a dancing-master for the use of his scholars, and to which persons are not indiscriminately admitted, is not within the Act; Bellis v. Burghall, 2 Esp. 722. Nor does the occasional use of a room in a public-house for dancing on particular festivals, render the owner liable (16) See ante, 64 et seq. in notis, on these subjects. The keeping of bawdy-houses, gaming-houses, and disorderly houses of all descriptions, together with the unlawful pastimes there pursued, has been from time to time prohibited by various Acts of parliament, (see them collected in Collyer's Criminal Statutes, Nuisance, 399, et seq.) imposing various punishments and penalties upon offenders: and, by the 3 Geo. IV. c. 114, such offenders are punishable by sentence of imprisonment with hard labour, for any term not exceeding the term for which the court before which they are convicted may now imprison for such offences, either in addition to or in lieu of any other punishment which might have been inflicted on such offenders by any law in force before the passing of that Act. The keeping of a cockpit to a penalty; Shutt v. Lewis, 5 Esp. 128. |