Sec. II-Of Spreading Contagious Disorders, and of Injury to the Public Health.

WITH the same regard to the public health, upon which the statutes relating to quarantine have proceeded, the Legislature appears to have acted in former times, in making persons guilty of felony who, being infected with the plague, went abroad and into company, with infectious sores upon them, after being commanded by the magistrates to stay at home.(c) The statute which contained this enactment, after being continued for some time, is now expired: but Lord Hale puts the question, whether if a person infected with the plague should go abroad with intent to infect another, and another be thereby infected and die, it would not be murder by the common law. (d) And he seems to consider it as clear, that though where no such intent appears it cannot be murder, yet, if by the conversation of such a person another should be infected, it would be a great misdemeanor.(d)

In a case relating the small-pox, it was held that the exposing in the public highway, with a full knowledge of the fact, a person infected with a contagious disorder is a common nuisance, *and as such the subject of an indictment. *168] The defendant was indicted for carrying her child, while infected with the small-pox, along a public highway, in which persons were passing, and near to the habitations of the King's subjects: and having suffered judgment to go by default, it was moved, in arrest of judgment, that it was consistent with the indictment that the child might have caught the disease, and that it was not shown that the act was unlawful, as the mother might have carried it through the street, in order to procure medical advice; and that the indictment ought to have alleged, that there was some sore upon the child at the time when it was so carried. It was also urged, that the only offences against the public health of which Hawkins speaks are spreading the plague and neglecting quarantine; (e) and that it appeared that Lord Hardwicke thought the building of a house for the reception of patients inoculated with the small-pox was not a public nuisance, and mentioned that upon an indictment of that kind there had been an acquittal.(f) But Lord Ellenborough, C. J., said, that if there had been any such necessity as supposed for the conduct of the defendant, it might have been given in evidence as matter of defence but there was no such evidence; and as the indictment alleged that the act was done unlawfully and injuriously, it precluded the presumption that there was any such necessity. Le Blanc, J., in passing sentence observed, that although the Court had not found upon its records any prosecution for this specific offence, yet there could be no doubt in point of law, that if any one unlawfully, injuriously, and with full knowledge of the fact, exposes in a public highway a person infected with a contagious disorder, it is a common nuisance to all the subjects, and indictable as such. That the Court did not pronounce that every person who inoculated for this disease was guilty of an offence, provided it was done in a proper manner, and the patient was kept from the society of others, so as not to endanger a communication of the disease. But no person, having a disorder of this description upon him, ought to be publicly exposed, to the endangering the health and lives of the rest of the subjects.(g)

In a subsequent case, where the indictment was against an apothecary for unlawfully and injuriously inoculating children with the small-pox, and while they were sick of it, unlawfully and injuriously causing them to be carried along the public street, it was moved in arrest of judgment, that this was not any offence; that the case differed materially from that of Rex v. Vantandillo, as it appeared that the defendant was by profession a person qualified to inoculate with this disease, if it were lawful for any person to inoculate with it. That as to its being alleged that the defendant caused the children to be carried along the street, it was no more

(c) 2 (vulgo 1.) Jac. 1, c. 31, s. 7; 1 Hale 432, 695; 3 Inst. 90.

(d) 1 Hale 432.

(e) 1 Hawk. P. C. c. 52, 53.

(ƒ) Anon., 3 Atk. 750. In 2 Chitt. Crim. Law, 656, there is an indictmeut against an apothecary for keeping a common inoculating house near the church in a town; and the Cro. Circ. A. 365, is referred to.

(g) Rex v. Vantandillo, 4 M. & S. 73.

[*169

than this, that he directed the patients to attend him for advice instead of visiting them, or that he prescribed what he might deem essential for their recovery, air, and exercise. And it was observed that in Rex v. Sutton,(h) which was an indictment for keeping an inoculating-house, and therefore much more likely to spread infection than what had been done here, the Court said that the defendant might demur. But Lord Ellenborough, C. J., said that the indictment laid the act to be done unlawfully and injuriously; and that in order to support this statement it must be shown, that what was done was, in the manner of doing it, incautious, and likely to affect the health of others. That the words unlawfully and injuriously precluded all legal cause of excuse. And Le Blanc, J., in passing

sentence observed that in all times it was unlawful and an indictable offence to expose persons affected with contagious disorders, and therefore liable to communicate them to the public, in a place of public resort. (i)

By the 3 & 4 Vict. c. 29, s. 8, which was passed to extend the practice of vaccination, "any person who shall from and after the passing of this Act (23 July, 1840) produce or attempt to produce in any person, by inoculation with variolous matter, or by wilful exposure to variolous matter, or to any matter, article or thing, impregnated with variolous matter, or wilfully by any other means whatsoever produce the disease of small-pox in any person in England, Wales, or Ireland, shall be liable to be proceeded against and convicted summarily before any two or more justices of the peace in petty sessions assembled, and for every such offence shall, upon conviction, be imprisoned in the common gaol or house of correction for any term not exceeding one month." And by the 16 & 17 Vict. c. 100, vaccination was made compulsory, and penalties recoverable before two justices imposed on persons neglecting to comply with its provisions.(k)

The public health may be injured by selling unwholesome food; and it is an indictable offence to mix unwholesome ingredients in anything made and supplied for the food of man. And if a master knows that his servant puts into bread what the law has prohibited, and the servant, from the quantity he puts in, makes the bread unwholesome, the master is answerable criminally, for he should have taken care that more than is wholesome was not inserted. The indictment was against the contract baker for a military asylum, for delivering for the use of the children belonging to the asylum divers loaves containing noxious materials, which he knew. The evidence was that they contained crude lumps of alum, and that alum was an unwholesome ingredient, and that the defendant's foreman made the loaves; but the jury found that the defendant knew he used alum. Upon a motion for a new trial the Court thought that if the master suffered the use of a prohibited article, it was his duty to take care that it was not used to a noxious extent, and that he was answerable if it was. A rule for arresting the judgment was then moved for, on the ground that the indictment did not specify what the noxious ingredients were, or state that the loaves were delivered to be eaten by the children; but the Court held the former not necessary, because the ingredients were in* the [*170 defendant's knowledge; and the allegation that the loaves were delivered for the use and supply of the children, must mean that they were delivered for their eating; and the rule was refused.(1)

Victuallers, butchers, and other common dealers in victuals, are not merely in the same situation that common dealers in other commodities are, and liable under the same circumstances that they are, so that if an order be sent to them to be executed they are presumed to undertake to supply a good and merchantable article; but they are also liable to punishment for selling corrupt victuals, by virtue

(h) 4 Burr. 2116.

(i) Rex v. Burnett, 4 M. & S. 272.

(k) The 14 & 15 Vict. c. 68, and 21 & 22 Vict. c. 64, contain other provisions on this subject as to Ireland, and the 4 & 5 Vict. c. 32, and 24 & 25 Vict. c. 59, as to England. (7) Rex r. Dixon, 3 M. & S. 11. And see 1 & 2 Geo. 4, c. 50, as to penalties upon bakers for using alum, &c., in making bread. See Att.-Gen. v. Siddon, 1 Tyrw. 41, as to the liability of a master for the acts of his servant: Att.-Gen. v. Riddell, 2 Tyrw. 523, as to the. liability of a husband for the acts of his wife: Lyons v. Martin, 8 A. & E. 512 (35 E. C. L. R.)

of an ancient statute, (m) certainly if they do so knowingly, and probably if they do not."(n)

If a person publicly exposes or causes to be exposed for sale in a market meat unfit for human food as and for meat that is fit for human food, knowing it not to be so, he is indictable at common law. (o) But a person is not indictable at common law for sending meat unfit for human food to a salesman in a market, unless he intend it to be sold for human food.(p)

It is an indictable offence at common law to bring a horse infected with the glanders into a public place to the danger of infecting the people there: and an indictment, which alleges that the defendant knew that a horse was infected with a contagious and infectious disease called the glanders, and that he brought it into a public place among divers subjects of the Queen to the great danger of infecting the said subjects with the said disease, is sufficient, after verdict, without alleging that the defendant knew that the disease was communicable to man.(q)

Where an indictment alleged that the defendant mixed a large quantity of cantharides with rum, and gave the mixture to a woman with intent that she should drink it, and with intent thereby to injure her health, and that the woman, not knowing the cantharides to have been mixed with the rum, drank the mixture, whereby she became ill for a long space of time, and the facts corresponded with the statements in the indictment, Williams, J., after consulting Cresswell, J., held that the offence charged was not a misdemeanor at common law. (r)

Of late years many excellent provisions have been made for promoting the public health, for the better prevention of diseases, and for preventing the adulteration of food, by the 11 & 12 Vict. c. 63, 18 & 19 Vict. cc. 116 & 121, 171*] 22 & 23 Vict. c. 84, 23 & 24 *Vict. c. 77, and other Acts, but their provisions do not fall within the scope of this work.

It is also an indictable offence to convey the refuse of gas into a great public river, and thereby to render the waters corrupt, insalubrious, and unfit for the use of man, and the directors of a gas company are responsible for the acts done by their superintendent and engineer under a general authority to manage the works, though they are personally ignorant of the plan adopted, and though such plan be a departure from the original and understood method which the directors had no reason to suppose was discontinued: for if persons for their own advantage employ servants to conduct works, they are answerable for what is done by those servants.(s)

*172]

*CHAPTER THE TENTH.

OF OFFENCES AGAINST THE REVENUE LAWS RELATING TO THE CUSTOMS OR

EXCISE.

AMONGST the offences against the revenue laws, that of smuggling is one of the principal. It consists in bringing on shore, or in carrying from the shore, goods, wares, or merchandise, for which the duty has not been paid, or goods of which the importation or exportation is prohibited: an offence productive of various mischiefs

(m) 51 H. 3, st. 6, repealed by the 7 & 8 Vict. c. 24, which also repeals an act for "the punishment of a butcher selling unwholesome flesh :" Ruffhead's St. p. 187, vol. 1, either of H. 3, E. 1, or E. 2.

(n) Per Parke, B., delivering the judgment of the Court in Burnby ». Bollett, 16 M. & W. 644, and see 4 Inst. 261.

(0) Reg. v. Stevenson, 3 F. & F. 106; Reg. v. Jarvis, 3 F. & F. 108.

(p) Reg. v. Crawley, 3 F. & F. 109. See 11 & 12 Vict. c. 107, s. 3; and 18 & 19 Vict. c. 121, s. 26, as to these offences when punishable summarily.

(9) Reg. v. Henson, Dears. C. C. 24.

(r) Reg. v. Hanson, 2 C. & K. 912; 4 Cox C. C. 238. See the 24 & 25 Vict. c. 100, ss. 23, 24, which clearly provide for such cases as the preceding, and Rex v. Walkden, 1 Cox C. C. 282.

(s) Rex v. Medley, 6 C. & P. 292 (25 E. C. L. R.), Lord Denman, C. J.

to society. (a) In order to prevent the commission of offences of this kind, many statutes were passed from time to time, which, in addition to the proceedings at common law for assaulting and obstructing revenue officers when acting in the execution of their duties, (b) gave to those officers extraordinary powers and protections, and punished persons endeavoring to resist or evade the laws relating to the customs and excise. The 16 & 17 Vict. c. 107, which consolidates the laws relating to the customs, makes various enactments relating to the forfeiture of vessels engaged in illegal traffic, and of uncustomed goods, which do not come within the scope of this treatise. But some of the enactments relating to the right to proceed to extremities, when necessary, for the purpose of seizing vessels liable to seizure, and the right to search for and seize goods liable to forfeiture, may properly be here mentioned. And the offence of making signals to smuggling vessels at sea, and the several offences declared to be felonies by this statute, require to be particularly noticed.

By the 16 & 17 Vict. c. 107, s. 218, "If any ship or boat liable to seizure or examination under this or any Act for the prevention of smuggling shall not bring-to when required so to do, on being chased by any vessel or boat in Her Majesty's navy having the proper pendant and ensign of Her Majesty's ships hoisted, or by any vessel or boat duly employed for the prevention of smuggling, having a proper pendant and ensign hoisted, it shall be lawful for the captain, master, or other person having the charge or command of such vessel or boat in Her Majesty's navy, or employed as aforesaid (first causing a gun to be fired as a signal), to fire at or into such ship or boat, and such captain, master, or other person acting in his aid or by his direction, shall be and is hereby indemnified and dis[*173 charged from any indictment, penalty, action, or other proceeding for so doing." (c)

Sec. 219. "Any officer or officers of the army, navy, or marines, duly employed for the prevention of smuggling, and on full pay, or any officer or officers of customs, producing his or their warrant or deputation (if required), may go on board any ship which shall be within the limits of any port of the United Kingdom, and rummage and search the cabin and all other parts of such ship for prohibited or uncustomed goods, and remain on board such ship so long as she shall continue within the limits of such port."

Sec. 220. "Any officer of customs or excise, or other person acting in his or their aid, or duly employed for the prevention of smuggling, may, upon reasonable suspicion, stop and examine any cart, wagon, or other means of conveyance, for the purpose of ascertaining whether any smuggled goods are contained therein; and if no such goods shall be found, the officer or other person so stopping and examining such cart, wagon, or other conveyance, having had probable cause to suspect that such cart, wagon, or other conveyance had smuggled goods contained therein, shall not, on account of such stoppage and search, be liable to any prosecution or action at law on account thereof; and all persons driving or conducting such cart, wagon, or other conveyance, refusing to stop or allow any such examination when required in the Queen's name, shall forfeit the sum of one hundred pounds." Sec. 221. Any officer of customs, or person acting under the direction of the commissioners of customs, having a writ of assistance issued from the Court of Exchequer, may, in the daytime, enter into and search(d) any house, shop, cellar, warehouse, room, or other place, and in case of resistance break open doors, chests,

66

(a) 1 Hawk. P. C. c. 48, s. 1; 4 Blac. Com. 155; Bac. Abr. Smuggling.

(b) See many precedents for misdemeanors at common law, in assaulting and obstructing officers of excise and customs, acting in the due execution of their offices: 4 Wentw. 385, et seq.; 2 Chitt. Crim. Law, 127, et seq. And see Brady's case, 1 Bos. & Pul. 188, where it was admitted that the offence charged in the indictment was an offence indictable at common law.

(e) By sec. 357, "ship shall mean ship or vessel of any description unless used to distinguish a ship from a sloop or some other description of vessel."

(d) The power to search was introduced in consequence of Rex v. Watts, 1 B. & Ad. 166 (20 E. C. L. R.), where it was doubted whether that power existed under the 6 Geo. 4, c. 108, s. 40, and where it was also doubted whether the ordinary writ of assistance was not too general.

VOL. I.-10

trunks, and other packages, and seize and bring away any uncustomed or prohibited goods, and put and secure the same in the Queen's warehouse, and may take with him any constable, headborough, police or other public officer, duly sworn as such, who may act as well without the limits of the parish or other place for which he shall be so sworn as within such limits; and all writs of assistance so issued shall continue in force during the reign for which they were granted, and for six months afterwards."

Sec. 223. "All ships and boats, and all goods whatsoever, liable to forfeiture, and all persons liable to be detained for any offence under this or any other Act relating to the customs, shall and may be seized or detained in any place, either upon land or water, by any officer or officers of Her Majesty's ariny, navy, or marines, duly employed for the prevention of smuggling, and on full pay, or by any officer or officers of customs or excise, or by any person having authority from the commissioners of customs or inland revenue to seize, or duly employed for the prevention of smuggling; and all ships, boats, and goods so seized shall, as soon as conveniently may be, be delivered into the care of the proper officer *ap*174] pointed to receive the same; and the forfeiture of any ship or boat shall be deemed to include her tackle, apparel, and furniture, and the forfeiture of any goods shall be deemed to include the package in which the same are found, and all the contents thereof."

In a case under the 6 Geo. 4, c. 108, s. 34, which was similar to sec. 223 of the present Act, a count alleged that certain spirituous liquors were about to be imported, in respect of which certain duties would be payable, and that R. H. was a person employed in the service of the customs of our Lord the King, and that it was the duty of R. H., as such person so employed in the service of the customs as aforesaid, to arrest and detain all such goods and merchandizes as should within his knowledge be imported, which, upon such importation thereof, would become forfeited; and that the defendant unlawfully solicited R. H. to forbear to arrest and detain the said goods; it was objected, in arrest of judgment, that as the law did not cast upon all persons in the service of the customs the duty of making seizures, and the count did not show that H. was a person coming within any of the three classes described in sec. 34 of 6 Geo. 4, c. 108, the count was bad: and the Court held that the allegation that it was H.'s duty to seize goods, which upon importation were forfeited, was an allegation of matter of law. That being so, the facts from which that duty arose ought to have been stated in the count. If, indeed, it could be said to be the duty of every person employed in the service of the customs to seize such goods, then the allegation would have been sufficient. But it clearly was not the duty of every such person, and therefore the indictment was bad.(e)

Sec. 238. "If any person liable to be detained under this or any other Act relating to the customs shall not be detained at the time of committing the offence for which he is so liable, or shall after detention make his escape, such person shall and may at any time afterwards be detained, and taken before any justice, to be dealt with as if detained at the time of committing such offence."

Sec. 244. "No person shall, after sunset and before sunrise between the twentyfirst day of September and the first day of April, or after the hour of eight in the evening and before the hour of six in the morning at any other time of the year, make, aid, or assist in making any signal in or on board or from any ship or boat, or on or from any part of the coast or shore of the United Kingdom, or within six miles of any part of such coast or shore, for the purpose of giving notice to any person on board any smuggling ship or boat, whether any person so on board of such ship or boat be or not within distance to notice any such signal; and if any person, contrary to this Act, shall make or cause to be made, or aid or assist in making, any such signal, such person so offending shall be guilty of a misdemeanor; and any person may stop, arrest, and detain the person so offending, and convey him before any justice, who, if he see cause, shall commit the offender to the next county gaol, there to remain until delivered by due course of law; and it

(e) Rex v. Everett, 8 B. & C. 114 (15 E. C. L. R.); 2 M. & R. 35 (17 E. C. L. R.).