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"gulis uxoribus contenti sunt." It is therefore punished by the laws both of antient and modern Sweden with death. 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 a witness against her husband, because she is the true wife; but the second may, for she is indeed no wife at all; 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 hath been continually abroad for seven years, whether the party in England hath notice of the other's being living or no. 2. Where either of the parties hath been absent from the other seven years within this kingdom, and the remaining party hath had no knowledge of the other's being alive within that time. 3. Where there is a divorce (or separation a mensa et thoro) 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. 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 the second marriage very clearly amounts to. But if at the age of consent the parties had agreed to the marriage, which completes the contract, and is indeed the real 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. (4)

Stiernh. de jure Sueon. 1.3. c. 2.

e 1 Hal. P. C. 693.

f

3 Inst. 89. Kel. 27. 1 Hal. P.C. 694.

(4) It seems that by the old law, which for this purpose remained untouched by the 18 E. 3., bigamy was general, and special; the former embraced the cases which fall within the provisions of the statute of James, and the latter, some at least of those within it's exceptions; the former were placed by the statute of E. 3. under the cognisance of the bishop, the latter still remained to be tried by a jury. Thus if to the counter-plea of bigamy, the prisoner replied that the first marriage was void because contracted within the age of consent, and at full age disaffirmed, that issue was tried by the country. By the statute of James, and the 35 G.3. c.67. s. 1., this distinction is become unimportant; this latter statute punishes offences within the former in the same manner

as

3. A THIRD species of felony against the good order and oeconomy of the kingdom, is by idle soldiers and mariners [ 165 ] wandering about the realm, or persons pretending so to be, and abusing the name of that honourable profession. 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 (5).

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 were first taken notice of in Germany about the beginning of the fifteenth century, and have since spread themselves all over Europe. Munster ", who is followed and relied upon by Spelman' 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) mentions them in his history as thieves and vagabonds, then wandering with their families over Europe under the name of Zigari; and Cosmogr. 1.3.

* 3 Inst. 85.

h

i Gloss. 193.

as persons convicted of grand or petit larceny, and a return from transportation without lawful cause before the expiration of the term limited, is felony without benefit of clergy. See Staundf. Pl. C. 135.

The prisoner may be tried under the statute of James in the county in which he is apprehended; and therefore Hawkins thinks that where the second marriage, which is the offence, was celebrated beyond the sea, still the party might be tried for it in England; but the broad principle that an offence committed out of the jurisdiction of the law, cannot be cognisable by the law, is scarcely to be got over by mere inference; and it should be remembered besides, that both the statutes of James I. and George III. begin, "If any person or persons within his majesty's dominions of England and Wales, &c." Hawkins, 1. c. 42. s. 7. East's Pl. C. c. xii. s. 2. (5) This statute was repealed by the 52 G.3. c. 31.

whom he supposes to have migrated from the country of Zigi, which nearly answers to the modern 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. 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 [166] " 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, subtil, "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 subtilty have "deceived the people of their money, and also have com"mitted 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. And afterwards, it is enacted by statute 1 & 2 Ph. & M. c. 4. and 5 Eliz. c. 20. that if any such persons shall be imported into this kingdom, the importer shall forfeit 401. 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, that at one Suffolk assises no less than thirteen gypsies were executed upon these statutes a few years before the restoration. But, to the honour of our national humanity, there are no instances more modern than this, of carrying these laws into practice (6).

* Dufresne. Gloss. I. 200.

1 Hal. P. C. 671.

(6) The 5 Eliz. c. 20. was repealed by the 23 G. 3. c. 51., and the capital

5. To descend next to offences whose punishment is short of death. Common nusances are a species of offences against the public order and oeconomical 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. The nature of common nusances, and their distinction from private nusances, were explained in the preceding volume": when we considered more particularly the [167] nature of the private sort, as a civil injury to individuals. I shall here only remind the student, that common nusances are such inconvenient and 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 [or county], at large, may be indicted, distrained to repair and amend them, and in some cases fined. And a presentment thereof by a judge of assise, &c. or a justice of the peace, shall be in all respects equivalent to an indictment (7). Where there is a house erected, or an inclosure 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. 2. All those kinds of nusances, (such as offensive trades and manufactures) which when injurious to a private man are actionable, are, when detrimental

m 1 Hawk. P. C. 75.1.

n Vol. III. pag. 216.

Stat. 7 Geo. III. c.42.

P Co. Litt. 277. from the French pourpris, an enclosure.

pital punishment under 1 & 2 Ph. & M. c. 4. by the 1 G. 4. c. 116. s. 1. Gypsies are now considered and punished merely as rogues and vagabonds under the vagrant acts. See 5 G. 4. c. 83.

(7) The 7 G.3. c. 42. is repealed by the 13 G.5. c.78. (the general highway act), which at s. 24. contains a similar provision with that stated in the text.

VOL. IV.

to the public, punishable by public prosecution, and subject to fine, according to the quantity of the misdemesnor: and particularly the keeping of hogs in any city or market town is indictable as a public nusance (8). 3. All disorderly inns or alehouses, bawdy-houses, gaming-houses, stage plays unlicensed, booths and stages for rope-dancers, mountebanks, and the like, are public nusances, and may upon indictment be suppressed and fined' (9). Inns, in particular, being intended for the lodging and receipt of travellers, may be indicted, suppressed, and the [168] 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 disorderly behaviour 3 (10). 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. 4. By statute 10 & 11 W. III. c. 17. all lotteries are declared to be public nusances, and all grants, patents, or licences for the same to be contrary to law. But, as state-lotteries have, for many years past, been found a ready mode for raising the supply (11), an act was made 19 Geo. III. c.21. to license and regulate the keepers of such lottery-offices. 5. The making and selling of fire-works, 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

9 Salk.460.

r1 Hawk. P. C. c.74. & 75. s.6.

S

$ 1 Hawk. P. C. c.78. s. 2.
Stiernh. de jure Sueon. 1.2. c. 9.

(8) It must be understood that they are kept in such inconvenient parts of the city or town that they cannot but greatly incommode the neighbourhood. 5 Bac. Abr. Nusance.

(9) See ante, p. 65. n. (16)

(10) Hawkins only says the innkeeper may be indicted and fined; Dalton, certainly, to whom he refers, c. 7. says, that the " alehouse-keeper may be suppressed:" but I do not imagine that a suppression of the inn can follow in the present day as any part of the punishment inflicted under an indictment at common law; though undoubtedly a refusal of the licence may follow as an indirect consequence.

(11) It might be said with more truth perhaps, " a very small part of the supply;" for I believe the produce of the state-lottery has seldom been estimated for many years but at a very inconsiderable sum. The last lottery-act 4 G. 4. c. 60. s. 19., holds out an expectation that the practice of raising money by means so objectionable will be henceforward discontinued, and makes some provisions, which would in that case become ne

cessary.

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