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CHAPTER THE NINTH.

OF NEGLECTING QUARANTINE, OF SPREADING CONTAGIOUS

DISORDERS, AND OF INJURY TO THE PUBLIC HEALTH.

SECT. I.

Of neglecting Quarantine.

The performance of quarantine, or forty days' probation, when ships arrive from countries infected with contagious disorders, having been considered as of the highest importance, with reference to the public health of the nation, has been enforced from time to time by various legislative enactments. These were formerly of considerable severity: but the 6 Geo. 4, c. 78, repeals all former acts upon this subject, and enforces the performance of quarantine principally by pecuniary penalties. Some offences, however, subject the offender to imprisonment, and some are of the degree of felony. It may be here observed, that in a case which arose upon 26 Geo. 2, c. 6, which enacted, that all persons going on board ships coming from infected places should obey such orders as the King in council should make, but did not award any particular punishment, nor contain a clause as to the jurisdiction of the justices of the peace, it was holden that disobedience of such an order of council was an indictable offence, and punishable as a misdemeanor at common law. (a)

The 6 Geo. 4, c. 78, s. 17, enacts, that “ if any commander, mas- 6 Geo. 4, c. ter, or other person, having charge of any vessel liable to perform 78, s. 17. quarantine, and on board of which the plague, or other infectious Penalty on disease or distemper, shall not then have appeared, shall himself quitting vesquit, or shall knowingly permit or suffer any seaman or passenger mitting persons coming in such vessel to quit such vessel, by going on shore, or by to quit them, going on board any other vessel or boat, before such quarantine or not conveyshall be fully performed, unless by such license as shall be granted ing them to the by virtue of any order in council, to be made concerning quarantine places, 4001. as aforesaid, or in case any commander or other person having charge of such vessel shall not, within a convenient time after due notice given for that purpose, cause such vessel, and the lading thereof, to be conveyed into the place or places appointed for such vessel and lading to perform quarantine; then and in every such case every such commander, master, or other person as aforesaid, for every such offence shall forfeit and pay the sum of four hundred pounds; and if any such person coming in any

such vessel liable to quaran- Persons comtine (or any pilot or other person going on board the same, either ing in such

(a) Rex v. Harris, 4 T. R. 202. 2 Lcach, 549.

sons, vessels,

vessels, or before or after the arrival of such vessel at any port or place in the going on board, united kingdom, or the islands aforesaid), shall

, either before or and quitting them before after such arrival, quit such vessel, unless by such license as aforedischarged said, by going on shore in any port or place in the united kingdom, from quaran

or the islands aforesaid, or by going on board any other vessel or tine, to suffer imprisonment boat, with intent to go on shore as aforesaid, before such vessel so for six months, liable to quarantine as aforesaid shall be regularly discharged from and forfeit

the performance thereof, it shall and may be lawful for any person 3001.

whatsoever, by any kind of necessary force, to compel such pilot or other person so quitting such vessel, so liable to quarantine, to return on board the same; and every such pilot or other person so quitting such vessel so liable to quarantine shall for every such offence suffer imprisonment for the space of six months, and shall forfeit and

pay the sum of three hundred pounds.” Penalty on The 21st section enacts, “ that if any officer of his Majesty's cusbezzling goods toms, or any other officer or person whatsoever, to whom it doth or performing shall appertain to execute any order or orders made or to be made quarantine,

concerning quarantine, or the prevention of infection, as notified as neglecting or

aforesaid, or to see the same put in execution, shall knowingly and deserting their duty, or per

wilfully embezzle any goods or articles performing quarantine, or be mitting per- guilty of any other breach or neglect of his duty in respect of the &c., to depart

vessels, persons, goods, or articles, performing quarantine, every such without autho. officer or persons so offending shall forfeit such office or employrity, or giving ment as he may be possessed of, and shall become from thence false certifi

incapable to hold or enjoy the same, or to take a new grant thereof; cates, or damaging goods. and every such officer and person shall forfeit and pay the sum of And officers, two hundred pounds; and if any such officer or person shall desert &c;, deserting from his duty when employed as aforesaid, or shall knowingly and giving false

willingly permit any person, vessel, goods, or merchandize, to depart certificate of

or to be conveyed out of the said lazaret vessel or other place as performace of quarantine,

aforesaid, unless by permission under an order of his Majesty, by to be guilty of and with the advice of his council, or under an order of two or more felony. of the lords or others of his privy council; or if any person hereby

authorized and directed to give a certificate of a vessel having duly performed quarantine or airing, shall knowingly give a false certificate thereof, every such person so offending shall be guilty of felony;(6) and if any such officer or person shall knowingly or wilfully damage any goods performing quarantine under his direction, he shall be liable to pay one hundred pounds' damages, and full costs

of suit, to the owner of the same.” Publication of

The publication in the London Gazette of any order in council, orders of council, &c.,

or of any order by two or more of the lords or others of the privy in the London council, made in pursuance of the act, or his Majesty's royal proGazette to be clamation made in pursuance of the same, is to be deemed and

(b) This act specifies no punishment for the principals in the first degree, they

are, therefore, punishable under the 7 & 8 Geo. 4, c. 28, 8. 8, (ante, p. 38), and s. 9 and 1 Vict. c. 90, s. 5, ante, p. 65, with transportation for seven years, or imprisonment for not exceeding two years, with or with out hard labour, in the common gaol or house of correction, and the offender may also be kept in solitary confinement for any portion of such imprisonment, or of such imprisonment with hard labour, not exceed..

ing one month at a time, or three months in the

space of one year, and if a male, may be once, twice, or thrice publicly or privately whipped, in addition to such imprisonment. The act makes no provision for principals in the second degree, or accessories, but there may be such, (ante, p. 34) and the principals are punishable as the principals in the first degree, and the accessories in the same manner as the principals in this case. See note (t), ante, p. 65. C. S. G.

tice.

The answers of the com

taken to be sufficient notice to all persons concerned, of all matters sufficient notherein respectively contained.

The statute also enacts, that in any prosecution, suit, or other Sec. 36. proceedings against any person, for any offence against this act, or any which may hereafter be passed concerning quarantine, or for mander, &c., any breach or disobedience of any order made by his Majesty by are to be evithe advice of his privy council, concerning quarantine, and the pre- place from vention of infection, notified or published as aforesaid, or of any which the order or orders made by two or more of the privy council, the an- vessel came or swers of the commander, master

, or other person, having charge of the hy any vessel, to any question or interrogatories put to him by virtue been directed and in pursuance of the act, or of any act which may hereafter be to perform passed concerning quarantine, or of any such order or orders as so be received aforesaid, shall be received as evidence so far as the same relate to as primá fucie the place from which such vessel came, or to the place or places at evidence that which she touched in the course of her voyage: and also that where the vessels any vessel shall have been directed to perform quarantine by the thereto ; and superintendant of quarantine, or his assistant, or, where there is no the being in superintendant or assistant, by the principal officer of the customs performance of at any port or place, or other officer of the customs authorized to be proof of act in that behalf; the having been so directed to perform qua- liability to rantine shall be given and received as evidence that such vessel quarantine. was liable to quarantine, unless satisfactory proof be produced by the defendant to shew that the vessel did not come from, or touch at, any such place or places as is or are stated in the said answers, or that such vessel, although directed to perform quarantine, was not liable to the performance thereof. And it further enacts, that where any vessel shall in fact have been put under quarantine by the superintendant, &c. and shall actually be performing the same, such vessel shall, in any prosecution, &c. for any offence against this act, or any other act hereafter passed concerning quarantine, or against any orders of council as aforesaid, be deemed liable to quarantine, without proving in what manner or from what circumstances such vessel became liable to the performance thereof.

SECT. II.

Of Spreading Contagious Disorders, and of Injury to the

Public Health. With the same regard to the public health, upon which the statutes Persons in. relating to quarantine have proceeded, the Legislature appears to fected with the have acted in former times, in making persons guilty of felony who, abroad and inbeing infected with the plague, went abroad and into company, with fecting others. 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

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carry a child

the small pox

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. (e) It is an indict- In a case relating to the small-pox infection, it was held that the able offence

exposing in the public highway, with a full knowledge of the fact, unlawfully and injuriously to

a person infected with a contagious disorder is a common nuisance,

and as such the subject of an indictment. The defendant was ininfected with

dicted for carrying her child, while infected with the small-pox, along a public along a public highway, in which persons were passing, and near to highway, in the habitations of the King's subjects; and having suffered judgwhich persons ment to go by default, it was moved, in arrest of judgment, that it and near to the was consistent with the indictment that the child might have caught habitations of the disease, and that it was not shown that the act was unlawful, as the king's

the mother might have carried it through the street, in order to prosubjects.

cure 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; (f) 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. (9) 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 prose

cution for this specific offence, yet there could be no doubt in point Unlawfully to of law, that if any one unlawfully, injuriously, and with full knowexpose a per- ledge of the fact, exposes in a public highway a person infected with

a contagious disorder, it is a common nuisance to all the subjects, gious disorder and indictable as such. That the Court did not pronounce that in a public highway is every person who inoculated for this disease was guilty of an offence, indictable. 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 cxposed, to the endangering the

health and lives of the rest of the subjects. (h) And it is also In a subsequent case, where the indictment was against an apoan indictable offence in an

thecary for unlawfully and injuriously inoculating children with the apothecary,

small-pox, and while they were sick of it, unlawfully and injuriously after having causing them to be carried along the public street, it was moved in inoculated

arrest of judgment, that this was not any offence; that the case children, unlawfully and differed materially from that of Rex v. Vantandillo, as it appeared injuriously to that the defendant was by profession a person qualified to inoculate cause them to be exposed

with this disease, if it were lawful for any person to inoculate with it. in the public

That as to its being alleged that the defendant caused the children street to the to be carried along the street, it was no more than this, that he

with a conta

(e) Hale, 432.
( 1 Hawk, P. C. c. 52, 53.

(9) Anon. 3 Atk. 750. In 2 Chitt. Crim. Law, 656, there is an indictment against an

apothecary for keeping a common inoculating house near the church in a town : and the Cro. Circ. A. 365, is referred to.

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

to

expose

.

sonment

directed the patients to attend him for advice instead of visiting danger of the them, or that he prescribed what he might deem essential for their public health. recovery, air, and exercise. And it was observed that in Rex v. Sutton, (i) 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 shewn, 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 It is indictable observed, that in all times it was unlawful and an indictable offence

persons to expose persons infected with contagious disorders, and therefore infected in liable to communicate them to the public, in a place of public places of pubresort. (K)

By the 3 & 4 Vict. c. 29, which was passed to extend the Persons inocupractice of vaccination, s. 8, it is enacted, “that any person who lating or other shall from and after the passing of this act (23 July, 1840) produce small-pox to be or attempt to produce in any person, by inoculation with variolous subject to one

month's imprimatter, 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."

The public health may be injured by selling unwholesome food; Selling unand it is an indictable offence to mix unwholesome ingredients in wholesome

food an indictanything made and supplied for the food of man. And if a master able offence. knows that his servant puts into bread what the law has prohibited, Master liable and the servant, from quantity he puts in, makes the bread un- for the acts wholesome, the master is answerable criminally, for he should have of his servants taken care that no more than is wholesome was not inserted. The course of their indictment was against the contract baker for a military asylum, for employment. 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

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 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) (i) 4 Burr. 2016.

(1) Rex v. Dixon, 3 M. & S. Jl. And (k) Rex o. Burnett, 4 M. & S. 272. see 1 & 2 Geo. 4, c. 50, as to penalties upon

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