Commentaries on the Laws of England (1765-1769)
Sir William Blackstone
Of Offenses Against the Public Health, and the Public Police or Economy
THE fourth species of offenses, more especially affecting the commonwealth, are such as are against the public health of the nation; a concern of the highest importance, and for the preservation of which there are in many countries special magistrates or curators appointed.
1. THE first of these offenses is a felony; but, by the blessing of providence for more than a century past, incapable of being committed in this nation. For by statute 1 Jac. I. c. 31. it is enacted, that if any person infected with the plague, or dwelling in any infected house, he commanded by the mayor or constable, or other head officer of his town or vill, to keep his house, and shall venture to disobey it; he may be enforced, by the watchmen appointed on such melancholy occasions, to obey such necessary command: and, if any hurt ensue by such enforcement, the watchmen are thereby indemnified. And farther, if such person so commanded to confine himself goes abroad, and converses in company, if he has no plague sore upon him, he shall be punished as a vagabond by whipping, and be bound to his good behavior: but, if he has any infectious sore upon him uncured, he then shall be guilty of felony. By the statute 26 Geo. II. c. 6. (explained and amended by 29 Geo. II. c. 8.) the method of performing quarantine, or forty days probation, by ships coming from infected countries, is put in a much more regular and effectual order than formerly; and masters of ships, coming from infected places and disobeying the directions there given, or having the plague on board and concealing it, are guilty of felony without benefit of clergy. The same penalty also attends persons escaping from the lazarets, or places wherein quarantine is to be performed; and officers and watchmen neglecting their duty; and persons conveying goods or letters from ships performing quarantine.
2. A SECOND, but much inferior, species of offense against public health is the selling of unwholesome provisions. To prevent which the statute 51 Hen. III. St. 6. and the ordinance for bakers, c. 7. prohibit the sale of corrupted wine, contagious or unwholesome flesh, or flesh that is bought of a Jew; under pain of amercement for the first offense, pillory for the second, fine and imprisonment for the third, and abjuration of the town for the fourth. And by the statute 12 Car. II. c. 25. §. 11. any brewing or adulteration of wine is punished with the forfeiture of 100£, if done by the wholesale merchant; and 40£, if done by the vintner or retail trader. These are all the offenses which may properly be said to respect the public health.
V. THE last species of offenses which especially affect the commonwealth are those against the public police and economy. By the public police and economy I mean the due regulation and domestic order of the kingdom: whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners; and to be decent, industrious, and inoffensive in their respective stations. This head of offenses must therefore be very miscellaneous, as it comprises all such crimes as especially affect public society, and are not comprehended under any of the four preceding species. These amount, some of them to felony, and others to misdemeanors only. Among the former are,
1. THE offense of clandestine marriages: for by the statute 26 Geo. II. c. 33. 1. To solemnize marriage in any other place besides a church, or public chapel wherein banns have been usually published, except by license from the archbishop; and, 2. To solemnize marriage in such church or chapel without due publication of banns, or license obtained from a proper authority; do both of them not only render the marriage void, but subject the person solemnizing it to felony, punished by transportation for fourteen years: as, by three former statutes,1 he and his assistants were subject to a pecuniary forfeiture of 100£ 3. To make a false entry in a marriage register; to alter it when made; to forge, or counterfeit, such entry, or a marriage license, or aid and abet such forgery; to utter the same as true, knowing it to be counterfeit; or to destroy or procure the destruction of any register, in order to vacate any marriage, or subject any person to the penalties of this act; all these offenses, knowingly and willfully committed, subject the party to the guilt of felony, without benefit of clergy.
2. ANOTHER felonious offense, with regard to this holy estate of matrimony, is what our law corruptly calls bigamy; which properly signifies being twice married, but with us is used as synonymous to polygamy, or having a plurality of wives at once.2 Such second marriage, living the former husband or wife, is simply void, and a mere nullity, by the ecclesiastical law of England: 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,3 “prope soli barbarorum singulis uxoribus contenti sunt” [“almost the only barbarians who are contented with one wife”]. It is therefore punished by the laws both of ancient and modern Sweden with death.4 And with us in England it is enacted by statute 1 Jac. I. c. 11. that if any person, being married, do afterwards marry again, the former husband or wife being alive, it is felony; but within the benefit of clergy. The first wife in this case shall not be admitted as an evidence against her husband, because she is the true wife; but the second may, for she is indeed no wife at all;5 and so, vice versa, of a second husband. This act makes an exception to five cases, in which such second marriage, though in the three first it is void, is yet no felony. 1. Where either party bath been continually abroad for seven years, whether the party in England has notice of the other’s being living or no. 2. Where either of the parties has been absent from the other seven years, within this kingdom, and the remaining party has had no notice of the other’s being alive within that time. 3. Where there is a divorce or separation a mensa et thoro [from bed and board] by sentence in the ecclesiastical court. 4. Where the first marriage is declared absolutely void by any such sentence, and the parties loosed a vinculo [from (marital) bonds]. Or, 5. Where either of the parties was under the age of consent at the time of the first marriage: for in such case the first marriage was voidable by the disagreement of either party, which this second marriage very clearly amounts too. But, if at the age of consent the parties had agreed to the marriage; and afterwards one of them should marry again; I should apprehend that such second marriage would be within the reason and penalties of the act.
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 honorable profession.6 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 years; unless licensed to depart by his employer, who in such case shall forfeit ten pounds.
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 commonwealth among themselves of wandering impostors and jugglers, who made their first appearance in Germany about the beginning of the sixteenth century, and have since spread themselves all over Europe. Munster, it is true,7 who is followed and relied upon by Spelman,8 fixes the time of their first appearance to the year 1417; but, as he owns, that the first whom he ever saw were in 1524, it is probably an error of the press for 1517: especially as other historians9 inform us, that when sultan Selim conquered Egypt, in the year 1517, several of the natives refused to submit to the Turkish yoke; but, being at length subdued and banished, they agreed to disperse in small parties all over the world, where their supposed skill in the black art gave them an universal reception, in that age of superstition and credulity. In the compass of a very few years they gained such a number of idle proselytes, (who imitated their language and complection, 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 1591.10 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 merchandise, 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 palmistry 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 linguae [half foreign and half native]. And afterwards, it is enacted by statutes 1 & 2 Ph. & M. c. 4. and 5 Eliz. c. 20. that if any such persons shall be imported into the 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 has been seen or found in the fellowship of such Egyptians, or which has 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,11 that at one Suffolk assizes no less than thirteen gypsies were executed upon these statutes, a few years before the restoration. But, to the honor of our national humanity, there are no instances more modern than this, of carrying these laws into practice.
5. To descend next to offenses, whose punishment is short of death. Common nuisances are a species of offenses against the public order and economical 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.12 The nature of common nuisances, and their distinction from private nuisances, were explained in the preceding volume;13 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 offenses, 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 persons 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. 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.14 2. All those kinds of nuisances, (such 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 according to the quantity of the misdemeanor: and particularly the keeping of hogs in any city or market town is indictable as a public nuisance.15 3. All disorderly inns or ale-houses, 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.16 Inns, in particular, being intended for the lodging and receipt of travelers, may be indicted, suppressed, and the inn-keepers fined, if they refuse to entertain a traveler without a very sufficient cause: for thus to frustrate the end of their institution is held to be disorderly behavior.17 Thus too the hospitable laws of Norway punish, in the severest degree, such inn-keepers as refuse to furnish accommodations at a just and reasonable price.18 4. By statute 10 & 11 W. III. c. 17. all lotteries are declared to be public nuisances, and all grants, patents, or licenses for the same to be contrary to law. 5. Cottages are held to be common nuisances, if erected singly on the waste, being harbors for thieves and other idle and dissolute persons. Therefore it is enacted by statute 31 Eliz. c. 7. that no person shall erect a cottage, unless he lays to it four acres of freehold land of inheritance to be occupied therewith, on pain to forfeit to the king 10£ for its erection, and 40 s. per month for its continuance: and no owner or occupier of a cottage shall suffer any inmates therein, or more families than one to inhabit there, on pain to forfeit 10 s. per month to the lord of the leet. This seems, upon our present more enlarged notions, a hard and impolitic law; depriving the people of houses to dwell in, and consequently preventing the populousness of towns and parishes: which, though it is generally endeavored to be guarded against, though a fatal rural policy, (being sometimes, when the poor are ill-managed, an intolerable hardship) yet, taken in a national view, and on a supposition of proper industry and good parochial government, is a very great advantage to any kingdom. But indeed this, like most other rigid or inconvenient laws, is rarely put in execution. 6. The making and selling of fireworks and squibs, or throwing them about in any street, is, on account of the danger that may ensue to any thatched or timber buildings, declared to be a common nuisance, by statute 9 & 10 W. III. c. 7. and therefore is punishable by fine. 7. 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:19 or are indictable at the sessions, and punishable by fine and finding sureties for the good behavior.20 8. Lastly, a common scold, communis rixatrix, (for our law-latin confines it to the feminine gender) is a public nuisance to her neighborhood. For which offense she may be indicted;21 and, if convicted, shall22 be sentenced to be placed in a certain engine of correction called the trebucket, castigatory, or cucking stool, which in the Saxon language signifies the scolding stool; though now it is frequently corrupted into ducking stool, because the residue of the judgment is, that, when she is so placed therein, she shall be plunged in the water for her punishment.23
6. IDLENESS in any person whatsoever is also a high offense against the public economy. In China it is a maxim, that if there be a man who does not work, or a woman that is idle, in the empire, somebody must suffer cold or hunger: the produce of the lands not being more than sufficient, with culture, to maintain the inhabitants; and therefore, though the idle person may shift off the want from himself, yet it must in the end fall somewhere. The court also of Areopagus at Athens punished idleness, and exerted a right of examining every citizen in what manner he spent his time; the intention of which was,24 that the Athenians, knowing they were to give an account of their occupations, should follow only such as were laudable, and that there might be no room left for such as lived by unlawful arts. The civil law expelled all sturdy vagrants from the city:25 and, in our own law, all idle persons or vagabonds, whom our ancient statutes describe to be “such as wake on the night, and sleep on the day, and haunt customable taverns, and ale-houses, and routs about; and no man wot from whence they come, ne whither they go;” or such as are most particularly described by statute 17 Geo. II. c. 5. and divided into three classes, idle and disorderly persons, rogues and vagabonds, and incorrigible rogues: all these are offenders against the good order, and blemishes in the government, of any kingdom. They are therefore all punished, by the statute last-mentioned; that is to say, idle and disorderly persons with one month’s imprisonment in the house of correction; rogues and vagabonds with whipping and imprisonment not exceeding six months; and incorrigible rogues with the like discipline and confinement, not exceeding two years: the breach and escape from which confinement in one of an inferior class, ranks him among incorrigible rogues; and in a rouge (before incorrigible) makes him a felon, and liable to be transported for seven years. Persons harboring vagrants are liable to a fine of forty shillings, and to pay all expenses brought upon the parish thereby; in the same manner .as by our ancient laws, whoever harbored any stranger for more than two nights, was answerable to the public for any offense that such his inmate might commit.26
7. UNDER the head of public economy may also be properly ranked all sumptuary laws against luxury, and extravagant expenses in dress, diet, and the like; concerning the general utility of which to a state, there is much controversy among the political writers. Baron Montesquieu laws it down,27 that luxury is necessary in monarchies, as in France; but ruinous to democracies, as in Holland. With regard therefore to England, whose government is compounded of both species, it may still be a dubious question, how far private luxury is a public evil; and, as such, cognizable by public laws. and indeed our legislators have several times changed their sentiments as to this point: for formerly there were a multitude of penal laws existing, to restrain excess in apparel;28 chiefly made in the reigns of Edward the third, Edward the fourth, and Henry the eighth, against piked shoes, short doublets, and long coats; all of which were repealed by statute 1 Jac. I. c. 25. But, as to excess in diet, there still remains one ancient statute unrepealed, 10 Edw. III. st. 3. which ordains that no man shall be served at dinner or supper, with more than two courses; except upon some great holy days there specified, in which he may be served with three.
8. NEXT to that of luxury, naturally follows the offense of gaming, which is generally introduced to supply or retrieve the expenses occasioned by the former: it being a king of tacit confession, that the company engaged therein do, in general, exceed the bounds of their respective fortunes; and therefore they cast lots to determine upon whom the ruin shall at present fall, that the rest may be saved a little longer. But, taken in any light, it is an offense of the most alarming nature; tending by necessary consequence to promote public idleness, theft, and debauchery among those of a lower class: and, among persons of a superior rank, it has frequently been attended with the sudden ruin and desolation of ancient and opulent families, an abandoned prostitution of every principle of honor and virtue, and too often has ended in self-murder. To restrain this pernicious vice, among the inferior sort of people, the statute 33 Hen. VIII. c. 9. was made; which prohibits to al but gentlemen the games of tennis, tables, cards, dice, bowls, and other unlawful diversions there specified,29 unless in the time of Christmas, under pecuniary pains and imprisonment. And the same law, and also the statute 30 Geo. III. c. 24. inflict pecuniary penalties, as well upon the master of any public house wherein servants are permitted to game, as upon the servants themselves who are found to be gaming there. But this is not the principal ground of modern complaint: it is the gaming in high life, that demands the attention of the magistrate; a passion to which every valuable consideration is made a sacrifice, and which we seem to have inherited from our ancestors the ancient Germans; whom Tacitus30 describes to have been bewitched with the spirit of play to a most exorbitant degree. “They addict themselves, says he, to dice, (which is wonderful) when sober, and a serious employment; with such a mad desire of winning or losing, that, when stripped of everything else, they will stake at last their liberty, and their very selves. The loser goes into a voluntary slavery, and, though younger and stronger than his antagonist, suffers himself to be bound and sold. And this perseverance in so bad a cause they call the point of honor: ea est in re prava pervicacia, ipsi fidem vocant.” One would almost be tempted to think Tacitus was describing a modern Englishman. When men are thus intoxicated with so frantic a spirit, laws will be of little avail: because the same false sense of honor, that prompts a man to sacrifice himself, will deter him from appealing to the magistrate. Yet it is proper that laws should be, and be known publicly, that gentlemen may learn what penalties they willfully incur, and what a confidence they repose in sharpers; who, if successful in play, are certain to be paid with honor, or, if unsuccessful, have it in their power to be still greater gainers by informing: For by statute 16 Car. II. c. 7. if any person by playing or betting shall lose more than 100£, at one time, he shall not be compellable to pay the same; and the winner shall forfeit treble the value, one moiety to the king, the other to the informer. The statute 9 Ann. c. 14. enacts, that all bonds and other securities, given for money won at play, or money lent at the time to play withal, shall be utterly void: that all mortgages and encumbrances of lands, made upon the same consideration, shall be and inure to the use of the heir of the mortgagor: that, if any person at one time loses 10£, at play, he may sue the winner, and recover it back by action of debt at law; and, in case the loser does not, any other person may sue the winner for treble the sum so lost; and the plaintiff in either case may examine the defendant himself upon oath: and that in any of these suits no privilege of parliament shall be allowed. The statute farther enacts, that if any person cheats at play, and at one time wins more than 10£, or any valuable thing, he may be indicted thereupon, and shall forfeit five times the value, shall be deemed infamous, and suffer such corporal punishment as in case of willful perjury. By several statutes of the reign of king George II,31 all private lotteries by tickets, cards, or dice, (and particularly the games of faro, basset, ace of hearts, hazard, passage, rolly polly, and all other games with dice, except backgammon) are prohibited under a penalty of 200£, for him that shall erect such lotteries, and 50£, a time for the players. Public lotteries, unless by authority of parliament, and all manner of ingenious devices, under the denomination of sales or otherwise, which in the end are equivalent to lotteries, were before prohibited by a great variety of statutes32 under heavy pecuniary penalties. But particular descriptions will ever be lame and deficient, unless all games of mere chance are at once prohibited; the inventions of sharpers being swifter than the punishment of the law, which only hunts them from one device to another. The statute 13 Geo. II. c. 19. to prevent the multiplicity of horse races, another fund of gaming, directs that no plates or matches under 50£, value shall be run, upon penalty of 200£, to be paid by the owner of each horse running, and 100£, by such as advertise the plate. By statute 188 Geo. II. c. 34. the statute 9 Ann. is farther enforced, and some deficiencies supplied: the forfeitures of that act may now be recovered in a court of equity; and moreover, if any man be convicted upon information or indictment of winning or losing at any sitting 10£ or 20£, within twenty four hours, he shall forfeit five times the sum. Thus careful has the legislature been to prevent this destructive vice: which may show that our laws against gaming are not so deficient, as ourselves and our magistrates in putting those laws in execution.
9. LASTLY, there is another offense, so constituted by a variety of acts of parliament, which are so numerous and so confused, and the crime itself of so questionable a nature, that I shall not detain the reader with many observations thereupon. And yet it is an offense which the sportsmen of England seem to think of the highest importance; and a matter, perhaps the only one, of general and national concern: associations having been formed all over the kingdom to prevent its destructive progress. I mean the offense of destroying such beasts and fowls, as are ranked under the denomination of game: which, we may remember, was formerly observed,33 (upon the old principles of the forest law) to be a trespass and offense in all persons alike, who have not authority from the crown to kill game (which is royal property) by the grant of either a free warren, or at least a manor of their own. But the laws, called the game laws, have also inflicted additional punishments (chiefly pecuniary) on persons guilty of this general offense, unless they be people of such rank or fortune as is therein particularly specified. All persons therefore, of what property or distinction soever, that kill game out of their own territories, or even upon their own estates, without the king’s license expressed by the grant of a franchise, are guilty of the first original offense, of encroaching on the royal prerogative. And those indigent persons who do so, without having such rank or fortune as is generally called a qualification, are guilty not only of the original offense, but of the aggravations also, created by the statutes for preserving the game: which aggravations are so severely punished, and those punishments so implacably inflicted, that the offense against the king is seldom thought of, provided the miserable delinquent can make his peace with the lord of the manor. This offense, thus aggravated, I have ranked under the present head, because the only rational footing, upon which we can consider it as a crime, is that in low and indigent persons it promotes idleness, and takes them away from their proper employments and callings; which is an offense against the public police and economy of the commonwealth.
THE statutes for preserving the game are many and various, and not a little obscure and intricate; it being remarked,34 that in one statute only, 5 Ann. c. 14. there is false grammar in no fewer than six places, besides other mistakes: the occasion of which, or what denomination of persons were probably the penners of these statutes, I shall not at present inquire. It is in general sufficient to observe, that the qualifications for killing game as they are usually called, or more properly the exemptions from the penalties inflicted by the statute law, are, 1. The having a freehold estate of 100£, per annum; there being fifty times the property required to enable a man to kill a partridge, as to vote for a knight of the shire: 2. A leasehold for ninety nine years of 150£, per annum: 3. Being the son and heir apparent of an esquire (a very loose and vague description) or person of superior degree: 4. Being the owner, or keeper, of a forest, park, chase, or warren. For unqualified persons transgressing these laws, by killing game, keeping engines for that purpose, or even having game in their custody, or for persons (however qualified) that kill game, or have it is possession, at unseasonable times of they year, there are various penalties assigned, corporal and pecuniary, by different statutes;35 on any of which, but only on one at a time, the justices may convict in a summary way, or prosecutions may be carried on at the assizes. And, lastly, by statute 28 Geo. II. c. 12. no person, however qualified to kill, may make merchandise of this valuable privilege, by selling or exposing to sale any game, on pain of like forfeiture as if he had no qualification.