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2. selling unwholesome pro
veying goods or letters from ships performing quarantine (1).
2. A second, but much inferior, species of offence against * public health is the selling of unwholesome provisions. To visions, a misprevent 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 offence, 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 1001. if done by the wholesale merchant; and 401. if done by the vintner or retail trader.
These are all the offences which may properly be said to respect the public health (2).
(1) By 6 Geo. IV. c. 78, all former acts relating to quarantine are repealed, and other provisions substituted, establishing certain pecuniary fines for the different offences therein set forth: these provisions are similar to those set forth in former statutes.
By $ 21, all parties guilty of deserting their duty, or officers permitting any person, or goods, to leave a lazaret vessel, or giving false certificates, are guilty of felony. By $ 25, persons al. tering or forging any certificate, or publishing any false certificate, are to be deemed guilty of felony.
Sec. 28 empowers consuls and viceconsuls to administer oaths in cases respecting quarantine. And by sec. 29, parties making false oaths, or procuring others to do so, touching quarantine, are to be punished, as in cases of perjury or subornation of perjury.
The repealed statute 26 G. II. c. 6. $ , enacted, that persons going on board ships coming from infected places should obey such orders as the king in council should make, without annexing any particular punishment: it was held, that the disobeying such an order was an indictable offence, and punishable as a misdemeanor at common law ; Rer
v. Harris, 4 T. R. 202. And see 2
A person may be indicted for unlaw-
It is an indictable offence for an apothecary unlawfully and injuriously to inoculate children with the small pox, and, while they are sick of it, unlawfully and injuriously to cause them to be carried along a public street; Rer v. Burnett, 4 M. & S. 272.
(2) Selling adulterated wine, or adulterating it, is punishable with fine and imprisonment, by 1 W. & M. st. I, c. 24, S 20. So the mixing alum with bread in a manner to render it unwholesome is an indictable offence; Rer v. Diron, 4 Camp. 12; 3 M. & S. 11. But it would seem that an indictment does not lie against a miller for receiving good barley to grind at his mill, and delivering a mixture of oat and barley meal different from the produce of the barley, and which is musty and unwholesome; Rer v. Haynes, 4 M. & S. 214.
Offences against the public police
nies, and others
Offences against V. The last species of offences which especially affect the are, some felo. commonwealth are those against the public police and ecomisdemeanors, nomy. 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 behaviour to the rules of propriety, good neighbourhood, and good manners ; and to be decent, industrious, and inoffensive in their respective stations. This head of offences 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 misdemesnors only. Among the
former are, [*163] 1. The offence of clandestine marriages ; for, by the sta
of tute 26 Geo. II. c. 33; 1. To solemnize marriage in any inimestest, reconies, other place besides a church, or public chapel wherein banns
have been usually published, except by licence from the archbishop of Canterbury; and, 2. To solemnize marriage in such church or chapel without due publication of banns, or licence 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 (a), he and his assistants were subject to a pecuniary forfeiture of 1001. 3. To make a false entry in a marriage register ; to alter it when made; to forge, or counterfeit, such entry, or a marriage licence; to cause or procure, or act or assist in 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 offences, knowingly and wilfully committed, subject the party to the guilt of felony without benefit of clergy (3).
1. those relating to clandestine or irregular mar. riages, felonies, with or without clergy;
(3) The 26 Geo. II. c. 33, and all subsequent acts upon this subject, are repealed by 4 Geo. IV. c. 76; by $ 21 of which it is provided, that persons solemnizing marriages in any other place
than a church or chapel, or without banns or licence, or under pretence of being in holy orders, shall be transported for fourteen years; by $ 22, that all marriages solemnized ander any of the
2. Another felonious offence, with regard to this holy es- 2. bigamy, or
polygamy, a fe. tate of matrimony, is what some have corruptly called bigamy, iony, with some which properly signifies being twice married ; but is more justly denominated polygamy, or having a plurality of wives at once (6). 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 [*164] 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 (c), “ prope soli bar
(6) 3 Inst. 88. Bigamy, according to the canonists, consisted in marrying two virgins successively, one after the death of the other, or in once marrying a widow. Such were esteemed incapable of orders, &c. ; and by a canon of the council of Lyons, A.D. 1274, held under pope Gregory X. were omni privilegio clericali nudati et coercioni fori secularis addicti. (6 Decretal. I. 12.) This canon was adopted and explained in England, by statute 4 Edw. I. st. 3, c. 5; and bigamy thereupon became
no uncommon counterplea, to the
(c) De mor. Germ. 18.
circumstances prohibited by the preceding clause, shall be null and void; by $ 23, that where marriages are solemnized between parties under age, contrary to this act, by false oath or fraud, the guilty party shall forfeit all property accruing from the marriage; and, by $ 29, that persons convicted of making, or causing to be made, any false entry in any register book, or any licence relating to any marriage, or altering, forging, or counterfeiting, or assisting in altering, &c., or causing to be altered, &c., any such
entry or licence, or destroying or causing
A prohibition was granted in a suit
barorum singulis uxoribus contenti sunt (6)." It is therefore punished by the laws both of ancient and modern Sweden with death (d). 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 (e); and so, vice versá, of a second husband. The act makes an exception to five cases, in which such second marriage, though in the three first it is void, is yet no felony (f). 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 se- . paration a mensá et thoro, by sentence in the ecclesiastical court (7). 4. Where the first marriage is declared absolutely void by any such sentence, and the parties loosed a vinculo (8). 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
(d) Stiernh. de jure Sueon. I. 3, c. 2. (f) 3 Inst. 89; Kel. 27; 1 Hal (e) 1 Hal. P. C. 693.
P. C. 694.
(6) “ Almost the only race of barbarians who were contented with one
(7) But if a person marries again under the three first exceptions, though the second marriage is not felony, yet as before the statute it is null and void, and the parties will be subject to the censures and punishment of the Ecclesiastical courts.-Ch.
(8) In the Duchess of Kingston's case the judges were unanimously of opinion, “ That a sentence in the
Spiritual court against a marriage in a suit of jactitation of marriage is not conclusive evidence, so as to stop the counsel for the crown from proving the marriage in an indictment for polygamy. And admitting such sentence to be conclusive upon such indictment, the counsel for the crown may be admitted to avoid the effect of such sentence, by proving the same to have been obtained by fraud or collusion ;" 11 Harg. St. Tr. 262.-Ch.
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 (9).
(9) By 9 Geo. IV. c. 31, $ 22, it is enacted, “ That if any person 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 or elsewhere, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and being convicted thereof, shall be liable to be transported beyond the seas for the term of seven years, or to be imprisoned, with or without hard labour, in the common gaol or House of Correction, for any term not exceed ing two years; and any such offence may be dealt with, inquired of, tried, determined, and punished in the county where the offender shall be apprehended, or be in custody, as if the offence had been actually committed in that county: provided always, that nothing herein contained shall extend to any second marriage, contracted out of England by any other than a subject of his Majesty or to any person marrying a second time, whose husband or wife shall have been continually absent from such per son for the space of seven years then last past, and shall not have been known by such person to be living within that time, or shall extend to any person who at the time of such second marriage shall have been divorced from the bond of the first marriage, or to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction."
Three important improvements in the law relating to bigamy are introduced by this enactment. First, the offence is now punishable wherever committed ; formerly it was not punishable at all, if committed out of the ju risdiction of England. Secondly, the absence of one party for seven years abroad, will not now excuse the second
marriage, if such party be known by the other party to have been alive within that period; formerly the mere absence was a protection, though the absent party was well known by the other to be living. Thirdly, a divorce a vinculo alone will now justify the second marriage; formerly a divorce a menså et thoro was held sufficient. 1 East, P. C. 466. In a prosecution for bigamy it has been said, that a marriage in fact must be proved; Morris v. Miller, 4 Burr. 2059; but see Trueman's case, 1 East, P. C. 470; but if proved by a person who was present, it does not seem necessary to prove the registry or licence; Rer v. Allison, R. & R. C. C. 109; and it matters not that the first marriage is voidable, by reason of affinity, &c. ; 3 Inst. 88. Parties who are within age at the time of the first marriage, subsequently affirming the union by their consent, will be liable to be punished for bigamy if they break that contract and marry again ; 1 East, P. C. 468. On an indictment for bigamy, where the first marriage is in England, it is not a valid defence to prove a divorce a vinculo out of England before the second marriage, founded on grounds on which a divorce a vinculo could not be obtained in England; Rer v. Lolley, R. & R. C. C. 237, cited in Tovey v. Lindsay, 1 Dow. 117. The burthen of proving the first marriage to have been legal, lies upon the prosecutor ; Rer v. James, R. & R. C. C. 17; Rer v. Morton, id. 19; Rer v. Butler, id. 61. The Act extends to all dissenters except Jews and Quakers. Upon the subject of bigamy generally, see I Hawk. P. C. c. 32; 1 East, P. C. c. 12; 1 Russell, c. 23; Butler's Co. Litt. 79, b. n. I; 3 Stark, Ev. Polygamy. Harrison's Digest, 750, Bigamy.