more than two infants) under the age of one year, for the purpose of nursing or maintaining such infants apart from their parents for a longer period than twenty-four hours, -except in some house which has been duly registered under that Act. And if it shall be proved to the "local authority" under whose superintendence such houses are placed, that there has been serious neglect, or that the person registered is incapable of supplying the infants with proper food, or that the house has become unfit for the reception of infants, the house may be struck out of the register. And any offence under this Act may be prosecuted under the Summary Jurisdiction Acts (m).

XI. Unlawfully endangering railway passengers.-Whoever shall unlawfully and maliciously put or throw on or across a railway any wood, stone or other thing; or displace any rail, sleeper or other thing, or turn any point of machinery belonging to a railway; or show, hide or remove any signal or light; or do any other thing with intent to endanger the safety of any person travelling or being on such railway (n)—or shall throw against or into a railway engine or carriage any wood, stone or other thing, with a similar intent (o)—he shall, in any of the above cases, be guilty of felony: and he is liable to penal servitude for life, or not less than five years; or to be imprisoned, with or without hard labour, for any term not exceeding two years (p). And, moreover, whoever by any unlawful act, or wilful omission or neglect, shall endanger or cause to be endangered, or shall aid or assist in endangering or in causing to be endangered, the safety of any person con

(m) The punishment may be imprisonment for not more than six months with or without hard labour, or a penalty not exceeding 57. (35 & 36 Vict. c. 38, s. 9).

(n) 24 & 25 Vict. c. 100, s. 32.

In cases under this section, the

offender, if a male under the age
of sixteen, may be sentenced to be
whipped in addition to the punish-
ments mentioned in the text.
(0) Sect. 33.

(p) Sects. 32, 33; 27 & 28 Vict.

c. 47.

veyed by or being on a railway, shall be guilty of a misdemeanor, and punishable by imprisonment, with or without hard labour, to the extent of two years (q).

XII. Setting spring-guns or engines to destroy or injure trespassers. It is enacted by 24 & 25 Vict. c. 100, that whoever shall set or place, or cause to be set or placed, any spring-gun, man-trap, or other engine calculated to destroy human life, or inflict grievous bodily harm, with intent to destroy such life or inflict such harm, upon a trespasser or other person coming in contact therewith,—shall be guilty of a misdemeanor, and be punishable with penal servitude for five years, or imprisonment, with or without hard labour, to the extent of two years (r).

There is, however, a proviso, that the said enactment shall not extend to gins or traps such as are usually set with the intent of destroying vermin; or to spring-guns, man-traps, or other engines, set in a dwelling-house for the protection thereof from sunset to sunrise (s).

XIII. Assaults, batteries, and false imprisonment shall next be considered. With regard to the nature of these offences in general, we have nothing further to add to what has been already observed in the preceding book of these Commentaries; when we considered them as civil injuries, for which a satisfaction is given to the party aggrieved (†). But taken in a public light as a breach of the peace, a common assault, even though not occasioning any actual bodily harm, is a misdemeanor, and punishable

(2) 24 & 25 Vict. c. 100, s. 34. See R. v. Bradford, 29 L. J. (N. S.) M. C. 171.

(r) Sect. 31; 27 & 28 Vict. c. 47. Prior to 7 & 8 Geo. 4, c. 18, s. 1 (repealed by 24 & 25 Vict. c. 95), the mere act of setting such instruments with intent to destroy trespassers, if sufficient notice were given to the public that they were

so set, was not an indictable offence. (Elott v. Wilks, 3 B. & Ald. 312, 314.) As to the right of action by a person who sustains injury from an engine of this description, see Jordan v. Crump, 8 Mee. & W. 782; Wootton v. Dawkins, 2 C. B. (N. S.) 412.

(s) 24 & 25 Vict. c. 100, s. 31. (t) Vide sup. bk. v. ch. vIII.

with imprisonment, with or without hard labour, to the extent of one year (u); while if it has occasioned such harm, it is punishable by penal servitude for five years, or imprisonment to the extent of two years, with or without hard labour (x). But, in some cases, assaults are punished in a still severer manner and degree: that is, when they are committed with any atrocious design,—as, for example, in case of an assault with intent to murder, in which case we may remember that penal servitude for life may be awarded (y).

Moreover, a variety of assaults of different kinds are provided against by particular enactments (z). Thus, amongst others (for it would be tedious to attempt an enumeration of all), an assault on a magistrate, or any other person in lawful authority while preserving wreck or goods cast on shore, is a misdemeanor punishable with penal servitude to the extent of seven years, or imprisonment to the extent of two years, at the discretion of the court (a). So, also, to obstruct or assault a clergyman while in the discharge of the duties of his calling (6), or to assault any person with intent to commit felony (c), or to assault any female indecently (d),- are all made punishable by two years' imprisonment with or without

(u) 24 & 25 Vict. c. 100, s. 47. Before this provision, "hard labour" could not be inflicted for a common assault.

(x) Sect. 47; 27 & 28 Vict. c. 47. (y) Vide sup. p. 79.

(z) See also the following .provisions:-13 & 14 Vict. c. 101, s. 9, as to assaults on workhouse or relieving officers: 17 & 18 Vict. c. 104, s. 206, as to masters of British ships wrongfully forcing a seaman or apprentice ashore, or leaving him behind, &c.: 24 & 25 Vict. c. 100, s. 39, as to assaults with intent to obstruct the sale or free passage of grain, &c.: sect. 40,

VOL. IV.

as to assaults on seamen and others, with intent to prevent them from working at their trades: 24 & 25 Vict. c. 100, s. 38, and 34 & 35 Vict. c. 112, s. 12, as to assaults on constables.

(a) 24 & 25 Vict. c. 100, s. 37. (b) Sect. 36.

(c) Sect. 38.

(d) Sect. 52. As to other indecent assaults, vide sup. p. 92,

et post, ch. VII. As to security being sometimes required for the due prosecution of such charges, see 22 & 23 Vict. c. 17, and 30 & 31 Vict. c. 35.

H

hard labour, even though no actual bodily harm may have been occasioned (e).

We may observe, too, that common assaults may be, and continually are, disposed of by the justices of the peace sitting at petty sessions, in the exercise of their summary jurisdiction, and not by way of indictment; and that, when so disposed of, the punishment is of a lighter description, and consists in a fine not exceeding £5, or imprisonment (with or without hard labour) to the extent of two months (e); and, in certain cases, even some species of aggravated assaults may be heard and determined by the justices (ƒ). But, for further information hereon, we must refer the reader to the chapter on Summary Convictions, in a subsequent part of the work.

XIV. We shall next notice that offence which is called bigamy (g), and which consists of a second marriage (h) by

(e) 24 & 25 Vict. c. 100, s. 42. In case of violence or threats of violence to persons engaged in the exercise of certain trades and occupations, the offender may, under 24 & 25 Vict. c. 100, s. 39, be kept to hard labour for as long as thre months, on being summarily convicted.

(f) See sect. 43. In these cases the fine may be as high as £20, and the imprisonment may extend to six months.

(g) It may be incidentally observed here that "bigamy," according to the canonists, consisted in marrying two virgins successively, one after the death of the other; or in once marrying a widow. They who contracted such marriages were esteemed incapable of orders, &c.; and by a canon of the council of Lyons, A.D. 1274, held under Pope Gregory

the tenth, were "omni privilegio clericali nudati, et coërcioni fori secularis addicti."-(6 Decretal. 1. 12.) This canon was adopted and explained in England by 4 Edw. 1 (Stat. de Bigamis); and bigamy thereupon became no uncommon counterplea to the claim of benefit of clergy. (M. 40 Edw. 3, 42; M. 11 Hen. 4, 11, 48; M. 13 Hen. 4, 6; Staundf. P. C. 134.) The cognizance of the plea of bigamy was declared by stat. 18 Edw. 3, st. 3, c. 2, to belong to the court christian, like that of bastardy. But by stat. 1 Edw. 6, c. 12, s. 16, bigamy was declared to be no longer an impediment to the claim of clergy. See Dal. 21; Dy. 201.

(h) Blackstone says (vol. iv. p. 163) that the offence of bigamy "is more justly denominated poly

gamy, or having a plurality of "wives at once:" and he objects

one who has a former husband or wife still living (i). [Such second marriage is simply void, and a mere nullity, by the ecclesiastical law of England; and yet the legislature has 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 (k). 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, "prope soli barbarorum, singulis uxoribus contenti sunt" (1).] And with us in England, it is enacted by 24 & 25 Vict. c. 100, that whosoever, 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, Ireland or elsewhere,) shall be guilty of felony (m); and is liable to penal servitude for not more than seven nor less than five years, or to be imprisoned with or without hard labour, for not more

to the term "bigamy" as describing the offence; because it "pro"perly signifies being twice mar"ried."

(i) 3 Inst. 88. It is to be observed, that, for the purposes of the 20 & 21 Vict. c. 85, "to amend "the law relating to divorce and "matrimonial causes in England," the term "bigamy" is to be taken to mean "the marriage of any "person being married, to any "other person during the life of "the former husband or wife, "whether the second marriage "shall have taken place within "the dominions of her Majesty, "or elsewhere."

(k) It has been held that cohabitation in a country where polygamy is lawful and between those who profess a faith which allows of polygamy, will not be recognized as lawful marriage in the English courts. See Hyde v. Hyde and Woodmansee, Law Rep., 1 P. & D. 130; and the remarks on this case contained in the Criminal Code Bill Commission Report, p. 25.

(2) De Mor. Germ. 18.

(m) The offence is committed though the second wife (or husband) be within the prohibited degrees of affinity. (The Queen v. Allen, Law Rep., 1 C. C. R. 367.)