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 quarantine (or any pilot or other person going on board the same, either before or after the arrival of such vessel at any port or place in the United Kingdom, or the islands aforesaid), shall, either before or after such arrival, quit such vessel, unless by such licence as aforesaid, by going on shore in any port or place in the United Kingdom, or the islands aforesaid, or by going on board any other vessel or boat, with intent to go on shore as aforesaid, before such vessel so liable to quarantine as aforesaid shall be regularly discharged from the performance thereof, it shall and may be lawful for any person 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.' Sec. 21. If any officer of his Majesty's customs, or any other officer or person whatsoever, to whom it doth or shall appertain to execute any order or orders made or to be made concerning quarantine, or the prevention of infection, as notified as aforesaid, or to see the same put in execution, shall knowingly and wilfully embezzle any goods or articles performing quarantine, or be guilty of any other breach or neglect of his duty in respect of the vessels, persons, goods, or articles, performing quarantine, every such officer or person so offending shall forfeit such office or employment as he may be possessed of, and shall become from thence incapable to hold or enjoy the same, or to take a new grant thereof; and every such officer and person shall forfeit and pay the sum of two hundred pounds: and if any such officer or person shall desert from his duty when employed as aforesaid, or shall knowingly and willingly permit any person, vessel, goods, or merchandize, to depart or to be conveyed out of the said lazaret vessel or other place as aforesaid, unless by permission under an order of his Majesty, by and with the advice of his council, or under an order of two or more 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; (c) 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.' (cc) Sec. 36 enacts, that in any prosecution, suit, or other proceedings against any person, for any offence against this Act, or any which may hereafter be passed concerning quarantine, or for any breach or disobedience of any order made by his Majesty by the advice of his (c) This Act specifies no punishment for principals: they are, therefore, punishable under the 7 & 8 Geo. 4, c. 28, ss. 8, 9; 1 Vict. c. 90, s. 5. (cc) See 29 & 30 Vict. c. 90, s. 52, post. privy council, concerning quarantine, and the prevention of infection, notified or published as aforesaid, or of any order or orders made by two or more of the privy council, the answers of the commander, master, or other person having charge of any vessel, to any question or interrogatories put to him by virtue and in pursuance of the Act, or of any Act which may hereafter be passed concerning quarantine, or of any such order or orders as aforesaid, shall be received as evidence so far as the same relate to the place from which such vessel came, or to the place or places at which she touched in the course of her voyage; and also that where any vessel shall have been directed to perform quarantine by the superintendent of quarantine, or his assistant, or, where there is no superintendent or assistant, by the principal officer of the customs at any port or place, or other officer of the customs authorized to act in that behalf; the having been so directed to perform quarantine shall be given and received as evidence that such vessel was liable to quarantine, unless satisfactory proof be produced by the defendant to show 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 superintendent, &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. By the 29 & 30 Vict. c. 90, s. 52, it is enacted that every vessel having on board any person affected with a dangerous or infectious. disorder shall be deemed to be within the provisions of the 6 Geo. 4, c. 78, although such vessel has not commenced her voyage, or has come from or is bound for some place in the United Kingdom; and the Lords and others of Her Majesty's Most Honourable Privy Council, or any three or more of them (The Lord President of the Council, or one of Her Majesty's principal Secretaries of State being one) may, by order or orders to be by them from time to time made, make such rules, orders, and regulations as to them shall seem fit, and every such order shall be certified under the hand of the Clerk in Ordinary of Her Majesty's Privy Council, and shall be published in the London Gazette, and such publication shall be conclusive evidence of such order to all intents and purposes, and such orders shall be binding and be carried into effect as soon as the same shall have been so published, or at such other time as shall be fixed by such orders, with a view to the treatment of persons affected with cholera and epidemic, endemic, and contagious disease, and preventing the spread of cholera and such other diseases as well on the seas, rivers, and waters of the United Kingdom, and on the high seas within three miles of the coasts thereof, as on land, and to declare and determine by what nuisance authority, or authorities, such orders, rules, and regulations, shall be enforced and executed; and any expenses incurred by such nuisance authority, or authorities, shall be deemed to be expenses incurred by it, or them, in carrying into effect the Nuisances Removal Act. (d) By the 35 & 36 Vict. c. 79, s. 52, (e) it is enacted that any person wilfully neglecting or refusing to obey or carry out, or obstructing the execution of any rule, order, or regulation made by the Local Government Board under sect. 52 of the Sanitary Act (1866), shall be guilty of an offence punishable on summary conviction before two justices, and be liable to a penalty not exceeding £50. These provisions are applied to the metropolis, by the 37 & 38 Vict. c. 89, s. 52. SEC. II. Of Spreading Contagious Disorders, and of Injury to the 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. (g) 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. (h) 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. (h) In a case relating to 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. The defendant. was indicted for carrying her child, while infected with the smallpox, 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 (d) This enactment is now repealed except so far as relates to the metropolis or to Scotland or Ireland, and the following provision enacted instead, Description of vessels within provisions of 6 Geo. 4, c. 78,' every vessel having on board any person affected with a dangerous or infectious disorder shall be deemed to be within the provisions of the 6 Geo. 4, c. 78, although such vessel has not commenced her voyage, or has come from or is bound for some place in the United Kingdom (38 & 39 Vict. c. 55, sched. 5, part 3). (e) This enactment is now repealed except so far as it relates to the metropolis (58 & 39 Vict. c. 55, sched. 5). (f) The Acts relating to the public health are consolidated by the Public Health Act, 1875 (38 & 39 Vict. c. 55). This Act (g) 2 (vulgo 1) Jac. 1, c. 31, s. 7. See 37 & 38 Vict. c. 35. 1 Hale, 432, 695. 3 Inst. 99. (h) 1 Hale, 432. 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; (i) 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. (5) But Lord Ellenborough, C. J., said, that if there had been any such necessity as was 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. (k) 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 R. 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 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 R. v. Sutton, (1) 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 (i) 1 Hawk. P. C. cc. 52, 53. (j) Anon. 3 Atk. 750. In 2 Chitt. Crim. Law, 656, there is an indictment against an apothecary for keeping a common inoculat VOL. I. 18 ing house near the church in a town; and the Cro. Circ. A. 365, is referred to. (k) R. v. Vantandillo, 4 M. & S. 73. (7) 4 Burr. 2116. manner of doing it, incautious, and likely to affect the health of others. (m) By an Act (n) to consolidate and amend the laws relating to vaccination, it is made a misdemeanor to wilfully sign a false certificate or duplicate of vaccination under that Act, and by section 32 it is enacted that any person who shall after the passing of this Act 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, shall be guilty of an offence, and shall be liable to be proceeded against summarily, and upon conviction to be imprisoned for any term not exceeding one month. The public health may be injured by selling unwholesome food; 1 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. (o) 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 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. (p) 'Victuallers, butchers, and other common dealers in victuals, are (m) R. v. Burnett, 4 M. & S. 272. See the Public Health Act, 1875, ss. 1, 2, 3, et seq. (n) 30 & 31 Vict. c. 84, s. 30. (0) See 38 & 39 Vict. c. 63, entitled 'an Act to repeal the Adulteration of Food Acts, and to make better provision for the sale of food and drugs in a pure state.' See 35 & 36 Vict. c. 74, and see the Public Health Act, 1875, ss. 116, 117, 118, 119. (p) R. v. Dixon, 3 M. &. S. 11. See Att.-Gen. v. Siddon, 1 Tyrw. 41, as to the liability of a master for the acts of his servant. As a general rule a master cannot be held criminally responsible for the acts or defaults of his servant, see Chisholm v. Doulton, 22 Q. B. D. 736. 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. AMERICAN NOTE. 1 Where the defendant had contracted to supply a city with wholesome water he was held indictable for a nuisance when the supply was not wholesome. Stein v. S., 37 Ala. 123. |