In order the better to secure the established church against perils from non-conformists of all denominations, infidels, turks, jews, heretics, pa. pists, and sectaries, there are however two bulwarks erected; called the corporation and test acts: by the former of which (e) no person can be legally elected to any office relating to the government of any city or corporation, unless, within a twelvemonth before he has received the sacra ment of the Lord's supper according to the rites of the church of England; and he is also enjoined to take the oaths of allegiance and supremacy at the same time that he takes the oath of office : or, in default of either of these requisites, such election shall be void." The other, called the test act, (f) directs all officers, civil and military, to take the oaths and [59] make the declaration against transubstantiation, in any of the king's courts at Westminster, or at the quarter sessions, within six calendar months after their admission; and also within the same time 10 to receive the sacrament of the Lord's supper, according to the usage of the church of England, in some public church immediately after divine service and sermon, and to deliver into court a certificate thereof signed by the e Stat. 13 Car. II. st. 2 c. 1. f Stat 25 Car. II. c. 2. explained by 9 Geo. II. c. 26. a place allowed by this statute, or in a private house, where there shall not be more than five persons besides the family. Id. s. 11. This statute shall not exempt Roman catholics from the pay. ment of tithes, or other dues, to the church; nor shall it affect the statutes concerning marriages, or any law respecting the succession to the crown. Id. s. 12. No person, who has qualified, shall be prosecuted for instructing youth, except in an endowed school, or a school in one of the English universities; and except also, that no Roman catholic schoolmaster shall receive into his school the child of any protestant father, id. ss. 13, 14, 15.; nor shall any Roman catholic keep a school until his, or her, name be recorded as a teacher at the sessions. Id. s. 16. But no religious order is to be established; and every endowment of a school or college by a Roman catholic shall still be superstitious and unlawful. Id. s. 17. And no person henceforth shall be summoned to take the oath of supremacy, and the declaration against transubstantiation. Id. s. 18. Nor shall Roman catholics, who have qualified, be removable from London and Westminster, id. s. 19. neither shall any peer, who has qualified, be punishable for coming into the presence, or palace, of the king or queen. Id s 20. And no papist whatever shall be any longer obliged to register their names and estates, or enrol their deeds and wills. Id. s. 21. And every Roman catholic, who has qualified, may be permitted to act as a barrister, attorney, and notary. Id. s. 22. By the 43 Geo. III. c. 30. Roman catholics, taking the oath, and making the declaration prescribed by 31 Geo. III. c. 32 shall be entitled to all the benefits given by 10 Geo. III. c. 60. as fully as if they had taken the oath therein prescribed. The Roman catholics cannot sit in either house of parliament, because every member of parliament must take the oath of supremacy, and repeat and subscribe the declaration against transubstantiation: see 1 Book, 162. Nor can they vote at elections for the members of the house of commons, because, before they vote, they must take the oath of supremacy. Ibid. 180. The Roman catholics in Ireland are permitted to vote at elections, but they cannot sit in either house of parliament. A bequest or disposition for the purpose of educating children in the Roman catholic religion is unlawful. But the fund will not pass to the testator's next of kin, but it shall be applied to such charitable purposes as his majesty shall please to direct by his sign manual. 7 Ves. Jan. 490. Christian. (9) By the 5 Geo. I. c. 65. the election into a corporate office shall not be void on account of the person elected having omitted to receive the sacrament within a year before the election, unless he shall be removed within six months after his election, or unless a prosecution be com menced within that time, and be carried on without delay; and during that time the office is not void, but only voidable; and the person elected, until a removal or prosecution within the time limited, is entitled to all the incidental rights of his office in as full an extent as if he had actually zeceived the sacrament within a year previous to his election. 2 Burr. 1016. (10) The 25 Car. II. c. 2 the original test act, required that both the sacrament and the oaths should be taken within three months; and by subsequent statutes, the time for taking the oaths has been enlarged to six months; but the time for taking the sacrament remains unaltered, which must still be taken within three months after admission into the office. And by several statutes subsequent to the test act, various descriptions of persons, whose offices are not considered civil or military, are required to take the oaths within six months after their respective appointments, though they are not required to take the sacrament. Amongst these are all ecclesiastical persons promoted to benefices, members of colleges, who have attained the age of 18 years, teachers of scholars or pupils, dissenting ministers, high constables, and practisers of the law. 1 Geo. I. st. 3. c. 13. 3 Geo. II. c. 81. 9 Geo. II. c. 26. Christian. minister and churchwarden, and also to prove the same by two credible wit nesses; upon forfeiture of 5001. and disability to hold the same office." And of much the same nature with these is the statute 7 Jac. I. c. 2. which permits no persons to be naturalized or restored in blood, but such as undergo a like test; which test having been removed in 175, in favour of the Jews, was the next session of parliament restored again with some precipitation. Thus much for offences, which strike at our national religion, or the doctrine and discipline of the church of England in particular. I proceed now to consider some gross impieties and general immoralities, which are taken notice of and punished by our municipal law; frequently in concurrence with the ecclesiastical, to which the censure of many of them does also of right appertain; though with a view somewhat different: the spiritual court punishing all sinful enormities for the sake of reforming the private sinner, pro salute animae; while the temporal courts resent the public affront to religion and morality on which all government must depend for support, and correct more for the sake of example than private amend ment. The fourth species of offences therefore, more immediately against God and religion, is that of blasphemy against the Almighty, by denying his being or providence; or by contumelious reproaches of our Saviour Christ.12 Whither also may be referred all profane scoffing at the holy scripture, or exposing it to contempt and ridicule. These are offences punishable at common law by fine and imprisonment, or other infamous corporal punishment: (g) 1 for christianity is part of the laws of England. (h) 1a 13 14 V. Somewhat allied to this, though in an inferior degree, is the offence of profane and common swearing and cursing. By the last statute against which, 19 Geo. II. c. 21. which repeals all former ones, [60] every labourer, sailor, or soldier profanely cursing or swearing, shall forfeit 1s.; every other person under the degree of a gentleman 2s. ; and every gentleman or person of superior rank 5s. to the poor of the parish; and, on the second conviction, double; and, for every subsequent offence, treble the sum first forfeited; with all charges of conviction and in default of payment shall be sent to the house of correction for ten days. Any (11) But before the end of every session of parliament an act is passed to indemnify all persons who have not complied with the requisition of the corporation and test acts, provided they qualify themselves within a time specified in the act; and provided also, that judgment in any action or prosecution has not been obtained against them for their former omission. (12) It is not lawful even to publish a correct account of the proceedings in a court of justice, if it contain matter of a scandalous, blasphemous, or indecent nature, 3 B. & A. 167.; and a publication stating our Saviour to be an impostor, and a murderer in principle, and a fanatic, is a libel at common law. 1 B. & C 26 The general law as to this offence, as collected from 2 Stra. 834 Fitzg. 64. Barn. R. 162 is, that it is illegal to write against christianity in general, that it is also illegal to write against any one of its evidences or doctrines, so as to manifest a malicious design to undermine it altogether; but that it is not illegal to write, with decency, on controverted points, whereby it is possible some articles of belief may be affected. Chitty. (13) The statute of 9 & 10 Wm. III. c. 32. before noticed, has not altered the common law as to the offence of blasphemy, but only given a cumulative punishment, 3 B. & A. 161.; and it seems that the 53 Geo. III. c. 160. before noticed, does not alter the common law, but only removes the penalties imposed by the 9 & 10 Wm. III. c. 32. on persons denying the Trinity, and extends to them the benefits conferred on all other protestant dissenters by 1 Wm. & M. c. 18. s. 1. 1 B. & C. 26. See Burn. Ecc. Law, 8. ed. vol. 3. tit. Profaneness, 215. n. 3. For a second offence the defendant may be fined or imprisoned. or banished for such a number of years as the court shall think fit, 60 Geo. III. and 1 Geo. IV. c. 8. s. 4 and by the same act, after conviction, all copies of the blasphemous work may be seized; but if judgment be arrested or reversed, they are to be restored. (14) See ante, 44, 50, 1 Bar. & C. 56: 15 justice of the peace may convict upon his own hearing, or the testimony of one witness; and any constable or peace officer, upon his own hearing, may secure any offender and carry him before a justice, and there convict him. If the justice omits his duty, he forfeits 571. and the constable 40s. And the act is to be read in all parish churches and public chapels, the Sunday after every quarter-day, on pain of 5l. to be levied by warrant from any justice.16 Besides this punishment for taking God's name in vain in common discourse, it is enacted by statute 3 Jac. I. c. 21. that if in any stage-play, interlude, or shew, the name of the holy Trinity, or any of the persons therein, be jestingly or profanely used, the offender shall forfeit 107. one moiety to the king, and the other to the informer. VI. A sixth species of offence against God and religion, of which our ancient books are full, is a crime of which one knows not well what account to give. I mean the offence of witchcraft, conjuration, enchantment, or sor cery. To deny the possibility, nay, actual existence of witchcraft and sorcery, is at once flatly to contradict the revealed word of God, in various passages both of the Old and New Testament: and the thing itself is a truth to which every nation in the world hath in its turn borne testimony, either by examples seemingly well attested, or by prohibitory laws; which at least suppose the possibility of commerce with evil spirits. The civil law punishes with death not only the sorcerers themselves, but also those who consult them, (i) imitating in the former the express law of God, (k) "thou shalt not suffer a witch to live." And our own laws, both before and since the conquest, have been equally penal; ranking this crime in the same class with heresy, and condemning both to the flames. () [61] The president Montesquieu (m) ranks them also both together, but with a very different view; laying it down as an important maxim, that we ought to be very circumspect in the prosecution of magic and here. sy; because the most unexceptionable conduct, the purest morals, and the constant practice of every duty in life, are not a sufficient security against the suspicion of crimes like these. And indeed the ridiculous stories that are generally told, and the many impostures and delusions that have been discovered in all ages, are enough to demolish all faith in such a dubious crime; if the contrary evidence were not also extremely strong. Where fore it seems to be the most eligible way to conclude, with an ingenious writer of our own, (n) that in general there has been such a thing as witchcraft; though one cannot give credit to any particular modern instance of it. Our forefathers were stronger believers, when they enacted by statute 33 Hen. VIII. c. 8. all witchcraft and sorcery to be felony without benefit of clergy; and again by statute 1 Jac. I. c. 12. that all persons invoking any evil spirit, or consulting, covenanting with, entertaining, employing, feeding, or rewarding any evil spirit; or taking up dead bodies from their graves to be used in any witchcraft, sorcery, charm, or enchantment; or killing or otherwise hurting any person by such infernal arts, should be guilty of felony with i Cod. 1. 9. c. 18. m Sp. L. b. 12. c. 5. 13 Inst. 44. k Exod. xxii. 18. (15) The conviction must be within eight days after the offence, 12. Each oath or curse being a distinct complete offence, there can be no question, I conceive, but a person may incur any number of penalties in one day, though Dr. Burn doubts whether any number of oaths or curses in one day amounts to more than one offence. 3. Burn, 325. Persons belonging to his majesty's navy, if guilty of profane cursing and swearing, are liable to suffer such punishment as acourt-martial shall think proper to inflict. 22 Geo. II. c. 33.-Mr. Christian's note. (15.) By the 4 Geo. IV. c. 31, this latter provision is repealed, benefit of clergy, and suffer death. And, if any person should attempt by sorcery to discover hidden treasure, or to restore stolen goods, or to provoke unlawful love, or to hurt any man or beast, though the same were not effected, he or she should suffer imprisonment and pillory for the first offence, and death for the second. These acts continued in force till lately, to the terror of all ancient females in the kingdom: and many poor wretches were sacrificed thereby to the prejudice of their neighbours, and their own illusions; not a few having, by some means or other, confessed the fact at the gallows. But all executions for this dubious crime are now at an end; our legislature having at length followed the wise example [62] of Louis XIV. in France, who thought proper by an edict to restrain the tribunals of justice from receiving informations of witchcraft. (0) And accordingly it is with us onacted by statute 9 Geo. II. c. 5. that no prosecution shall for the future be carried on against any persons for conjuration, witchcraft, sorcery, or inchantment." But the misdemesnor of persons pretending to use witchcraft, tell fortunes, or discover stolen goods by skill in the occult sciences, is still deservedly punished with a year's imprisonment, and standing four times in the pillory." VII. A seventh species of offenders in this class are all religious impos. tors: such as falsely pretend an extraordinary commission from heaven; or terrify and abuse the people with false denunciations of judgments. These, as tending to subvert all religion, by bringing it into ridicule and contempt, are punishable by the temporal courts with fine, imprisonment, and infa mous corporal punishment. (p, VIII. Simony, or the corrupt presentation of any one to an ecclesiastical benefice for gift or reward, is also to be considered as an offence against religion; as well by reason of the sacredness of the charge which is thus profanely bought and sold, as because it is always attended with perjury in the person presented. (q) The statute 31 Eliz. c. 6. (which, so far as it relates to the forfeiture of the right of presentation, was considered in a former book) (r) enacts, that if any patron, for money or any other corrupt consideration or promise, directly or indirectly given, shall present, admit, institute, indict, install, or collate any person to an ecclesiastical benefice or dignity, both the giver and taker shall forfeit two years' value of the benefice or dignity; one moiety to the king, and the other to any one who will sue for the same. If persons also corruptly resign or exchange their benefices, both the giver and taker shall in like manner forfeit double the value of the money or other corrupt consideration.20 And persons who shall corruptly o Voltaire Siccl. Louis XIF. ch. 29. Mud. Un. Hist, xxv. 215. Yet Vougbians (de droit criminel, 353. 459.) still reckons up sorcery and witchcraft among the crimes punishable in France. p 1 Hawk. P. C. 7. q 3 Inst. 156. r See Book II. p. 279. C (17) By 1 & 2 Geo. IV. the statute as to Ireland, in case of witchcraft, &c. is repealed. (18) By the vagrant act, 5 Geo. IV. c. 8. §. 4., persons pretending or professing to tell fortunes, or using any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose on any of his majesty's subjects, are rogues and vagabonds. See further, as to this and the vagrant act, post, 169. (19) But according to 2 Bla. Rep. 1052. 1 Ld. Raym. 449. Moore Rep. 564. simony is not an offence criminally punishable at common law. The (20) Any resignation or exchange for money is corrupt, however apparently fair the transac tion; as where a father, wishing that his son in orders should be employed in the duties of his profession, agreed to secure, by a bond, the payment of an annuity exactly equal to the annual produce of a benefice, in consideration of the incumbent's resigning in favour of his son annuity being afterwards in arrear, the bond was put in suit, and the defendant pleaded the simoniacal resignation in bar; and lord Mansfield and the court, though they declared that it was an unconscientious defence, yet, as the resignation had been made for money, determined that it was corrupt and simoniacal, and in consequence that the bond was void. Young v. Jones, E. 1782.—Mr. Christian's note. See further, as to simony, ante, 2 Book, 278, notes 14 to 21.' ordain or license any minister, or procure him to be ordained or licensed (which is the true idea of simony), shall incur a like forfeiture of [63] forty pounds; and the minister himself of ten pounds, besides an in capacity to hold any ecclesiastical preferment for seven years afterwards. Corrupt elections and resignations in colleges, hospitals, and other eleemosynary corporations, are also punished by the same statute with for. feiture of the double value, vacating the place of office, and a devolution of the right of election for that turn to the crown. IX. Profanation of the Lord's day, vulgarly (but improperly) called sab. bath breaking, is a ninth offence against God and religion, punished by the municipal law of England. For, besides the notorious indecency and scandal of permitting any secular business to be publicly transacted on that day, in a country professing christianity, and the corruption of morals which usually follows its profanation, the keeping one day in seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to a state, considered merely as a civil institution. It humanizes by the help of conversation and society the manners of the lower classes, which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit: it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness: it imprints on the minds of the people that sense of their duty to God, so necessary to make them good citizens; but which yet would be worn out and defaced by an unremitted continuance of labour, without any stated times of recalling them to the worship of their maker. And therefore the laws of king Athelstan (s) forbad all merchandizing on the Lord's day, under very severe penalties. And by the statute 26 Hen. VI. c. 5. no fair or market shall be held on the principal festivals, Good Friday, or any Sunday (except the four Sundays in harvest), on pain of forfeiting the goods exposed to sale. And since, by the statute 1 Car. I. c. 1. no person shall assemble out of their own parishes, for any sport whatsoever upon this day; nor, in their parishes, shall use any bull or bear-baiting, interludes, plays, or other unlawful exercise, or pastimes; on pain thate very offender shall pay 3s. 4d. to the poor. This statute does not prohibit, but rather impliedly allows, any innocent [64] recreation or amusement, within their respective parishes, even on the Lord's day, after divine service is over. But by statute 29 Car. II. c. 7. no person is allowed to work on the Lord's day, or use any boat or barge, or expose any goods to sale; except meat in public houses, milk at certain hours, and works of necessity or charity, on forfeiture of 5s. Nor shall any drover, carrier, or the like, travel upon that day, under pain of twenty shillings.a 22 X. Drunkenness is also punished by statute 4 Jac. I. c. 5. with the forfeiture of 58.; or the sitting six hours in the stocks: 2 by which time the statute presumes the offender will have regained his senses, and not be liable to do mischief to his neighbours. And there are many wholesome statutes, by way of prevention, chiefly passed in the same reign of king James I. which regulate the licensing of alehouses, and punish persons found tippling therein; or the master of such houses permitting them.23 &c. 24. (21) Goods exposed to sale upon a Sunday are forfeited to the use of the poor, except that one third may be allowed the informer; but milk may be sold before nine in the morning, and after four in the afternoon. 29 Car. II c. 7. Mackarel also may be sold on Sundays before and after divine service. 10 & 11 W. III. c. 24. (29) That is, if the offender is not able to pay the penalty. (23) The acts now in force regulating the licensing and keeping, &c. of alehouses, will be |