and there convict him.10 If the justice omits his duty he forfeits 51., 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 war rant from any justice." 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 stageplay, interlude, or show, 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.

[*61

VI. A sixth species of offence against God and religion, of which our antient books are full, is a crime of which one knows not well what account to give. Ι mean the offence of witchcraft, conjuration, enchantment, or sorcery. 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, (j) 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.) 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 heresy; 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. Wherefore 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 con sulting, 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 without 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 antient 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

10 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 a court-martial shall think proper to inflict. 22 Geo. II. c. 33.-CHITTY.

11

By the 4 Geo. IV. c. 31, this latter provision is repealed.—CHITTY. VOL. II.-24

369

*62] example of *Louis XIV. in France, who thought proper, by an edict, te restrain the tribunals of justice from receiving informations of witchcraft.(0) And accordingly it is with us enacted, 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 enchantment. But the misdemeanour 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."2

VII. A seventh species of offenders in this class are all religious impostors : 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 infamous corporal punishment.(p)

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.(g) 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, induct, instal, 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." And *63] persons who shall *corruptly 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 forty pounds; and the minister himself of ten pounds, besides an incapacity 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 forfeiture of the double value, vacating the place or office, and a devolution of the right of election for that turn to the crown." 15

IX. Profanation of the Lord's day, vulgarly (but improperly) called sabbath

() Voltaire, Siecl. Louis XIV. ch. 29. Mod. Un. Hist. xxv. 215. Yet Voughlans (de droit criminel, 353, 459) still reckons up sorcery and witchcraft among the crimes punishable in France.

12

(P) 1 Hawk. P. C. 7.

(9) 3 Inst. 156.

(7) See book ii. p. 279.

By the vagrant act, (5 Geo. IV. c. 8, s. 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.CHITTY.

13 But, according to 2 Bla. Rep. 1052, 1 Ld. Raym. 449, Moore, Rep. 564, simony is not an offence criminally punishable at common law.—CHITTY.

14 Any resignation or exchange for money is corrupt, however apparently fair the transaction: 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. The 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 vs. Jones, E. T. 1782.-CHRISTIAN. 15 By stat. 9 Geo. IV. c. 94, bonds of resignation of any benefice in favour of a son, grandson, brother, uncle, nephew, or grand-nephew, upon notice or request, are rendered valid, notwithstanding the 31 Eliz. c. 6; but the new act is not to extend to any engagements unless the deed be deposited within two months with the registrar of the diocese or peculiar jurisdiction wherein the benefice is situated. The passing of this act, it is believed, arose out of the fluctuating and contradictory decisions of our courts upon the subject.-CHITTY.

breaking, is a ninth offence against God and religion, punished by the municipal law of England. For, besides the notorious indecency and scandal of permit ting 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 the 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) forbade all merchandizing on the Lord's day, under very severe penalties. And by the statute 27 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 persons 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 exercises or pastimes; on pain that every offender shall pay 3s. 4d. to [*64 the poor. This statute does not prohibit, but rather impliedly allows, any innocent 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.16

X. Drunkenness is also punished, by statute 4 Jac. I. c. 5, with the forfeiture of 5s., or the sitting six hours in the stocks: 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."

(*) C. 24.

16 It has been recently held that the driver of a stage-van to and from London to York is a common carrier within the meaning of 3 Car. I. c. 1, and subject to the penalties thereof for travelling on Sunday. Rex vs. Middleton, 4 D. & R. 824. Where a parol contract was entered into for the purchase of a horse above the value of 107., on a Sunday, with a warranty of soundness, and the horse was not delivered and paid for until the following Tuesday, held, first, that the contract was not complete until the latter day; and, second, that supposing it to be void within the 29 Car. II. c. 7, s. 2, still it was not an available objection on the part of the vendor in an action for a breach of the warranty, the vendee being ignorant of the fact that the former was exercising his ordinary calling on the Sunday. Bloxsome vs. Williams, 5 D. & R. 82. 3 B. & C. 232.

The 11 & 12 W. III. c. 21, and all other acts for the regulation of watermen plying upon the river Thames, are repealed by the 7 & 8 Geo. IV. c. 75, which permits a limited number of watermen, under certain regulations, to ply upon the Thames, within certain specified limits, on Sundays. By 29 Car. II. c. 7, no arrest can be made nor process served on a Sunday except for treason, felony, or breach of the peace. Ante, book iii. 290. Neither is the hundred answerable to the party robbed for a robbery committed on a Sunday. But where a plaintiff was robbed in going to his parish church, in his coach, on a Sunday, he recovered against the hundred, under the statute of Winton, (13 Edw. I. st. 2,) the court observing that the statute of Charles must be construed to extend only to cases of travelling, and that it might have been otherwise if the plaintiff had been making visits, or the like. Teshmaker vs. The Hundred of Edmonton, M. 7 Geo. I. See 1 Stra. 406. Com. 345. Killing game on a Sunday is prohibited, under heavy penalties, by 13 Geo. III. c. 80.-CHITTY.

"Justices of the peace have an absolute and uncontrolled power and discretion in

18

XI. The last offence which I shall mention, more immediately against religion and morality, and cognizable by the temporal courts, is that of open and notorious lewdness; either by frequenting houses of ill fame, which is an indietable offence ;(t) or by some grossly scandalous and public indecency, for which the punishment is by fine and imprisonment.(u) In the year 1650, when the ruling power found it for their interest to put on the semblance of a very extraordinary strictness and purity of morals, not only incest and wilful adultery were made capital crimes, but also the repeated act of keeping a brothel, or committing fornication, were (upon a second conviction) made felony without benefit of clergy.(w) But at the restoration, when men, from an abhorrence of the hypocrisy of the late times, fell into the contrary extreme of licentious*65] it was not thought proper to renew a law of *such unfashionable rigour. And these offences have been ever since left to the feeble coercion of the spiritual court according to the rules of the canon law; a law which has treated the offence of incontinence, nay, even adultery itself, with a great degree of tenderness and lenity, owing perhaps to the constrained celibacy of its first compilers. The temporal courts therefore take no cognizance of the crime of adultery otherwise than as a private injury.(x)

ness,

But, before we quit this subject, we must take notice of the temporal punish

granting and refusing ale-licenses; but if it should appear from their own declarations or the circumstances of their conduct that they have either refused or granted a license from a partial or corrupt motive, they are punishable in the court of King's Bench by information, or they may be prosecuted by indictment. 1 Burr. 556. 1 T. R. 692.

But the court of King's Bench refused a mandamus to justices to rehear an application for an ale-house license, which they had refused, though it was suggested that their refusal had proceeded from a mistaken view of their jurisdiction. Rex vs. Farringdon Without, (Justices,) 4 D. & R. 735. So they refused a mandamus to rehear a similar application at any other period of the year than within the first twenty days of September, though the justices might have refused the license under a mistake of the law. Rex vs. Surrey, (Justices,) 5 D. & R. 308.-CHITTY.

18 As to the offence of keeping or frequenting bawdy-houses, see post, 167. A woman cannot be indicted for being a bawd generally; for the bare solicitation of chastity is not indictable. Hawk. b. 1, c. 74. 1 Salk. 382.-CHITTY.

19 Many offences of private incontinence fall properly and exclusively under the jurisdiction of the ecclesiastical court, and are appropriated to it; but where the incontinence or lewdness is public, or accompanied with conspiracy, it is indictable.

Exposing a party's person to the public view is an offence contra bonos mores, and indictable. See 1 Sid. 168. 2 Camp. 89. 1 Keb. 620. And, by the vagrant act, (5 Geo. IV. c. 83, s. 4,) exposing a man's person with intent to insult a female is an offence for which the offender may be treated as a rogue and vagabond; and so is the wilfully exposing an obscene print or indecent exhibition: indeed, this would be an indictable offence at common law. 2 Stra. 789. 1 Barn. Rep. 29. 4 Burr. 2527, 2574. And, by the same act of 5 Geo. IV. c. 83, s. 3, every common prostitute wandering in public and behaving in a riotous and indecent manner may be treated as an idle and disorderly person within the meaning of that act.

Publicly selling and buying a wife is clearly an indictable offence, (3 Burr. 1438 ;) and many prosecutions against husbands for selling and others for buying have recently been sustained, and imprisonment for six months inflicted.

Procuring or endeavouring to procure the seduction of a girl seems indictable. 3 St. Tr. 519. So is endeavouring to lead a girl into prostitution. 3 Burr. 1438; and see post, 209, 212, as to the offence of seduction.

It is an indictable offence to dig up and carry away a dead body out of a churchyard. 2 T. R. 733. Leach, C. L. 4th ed. 497, S. C. 2 East, P. C. 652; post, 236; ante, 2 book, 429. And the mere disposing of a dead body for gain and profit is an indictable offence. Russ. & R. C. C. 366, note. 1 Dowl. & R. N. P. Č. 13. And it is a misdemeanour to arrest a dead body, and thereby prevent a burial in due time. 4 East, 465. The punishment for such an offence is fine and imprisonment. 2 T. R. 733.

All such acts of indecency and immorality are public misdemeanours, and the offenders may be punished either by an information granted by the court of King's Bench, or by an indictment preferred before a grand jury at the assizes or quartervessions.-CHITTY.

ment for having bastard children, considered in a criminal light; for, with regard to the maintenance of such illegitimate offspring, which is a civil concern, we have formerly spoken at large. (y) By the statute 18 Eliz. c. 3, two justices may take order for the punishment of the mother and reputed father, but what that punishment shall be is not therein ascertained; though the contemporary exposition was that a corporal punishment was intended.(z) By statute 7 Jac. I. c. 4, a specific punishment (viz., commitment to the house of correction) is inflicted on the woman only. But in both cases it seems that the penalty can only be inflicted if the bastard becomes chargeable to the parish; for otherwise the very maintenance of the child is considered as a degree of punishment. By the last-mentioned statute, the justice may commit the mother to the house of correction, there to be punished and set on work for one year; and in case of a second offence, till she find sureties never to offend again.20

*CHAPTER V.

OF OFFENCES AGAINST THE LAW OF NATIONS.

[*67

ACCORDING to the method marked out in the preceding chapter, we are next to consider the offences more immediately repugnant to that universal law of society, which regulates the mutual intercourse between one state and another; those, I mean, which are particularly animadverted on, as such, by the English law.

The law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world; (a) in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance of justice and good faith in that intercourse which must frequently occur between two or more independent states, and the individuals belonging to each.(b) This general law is founded upon this principle, that different nations ought in time of peace to do one another all the good they can, and in time of war as little harm as possible, without prejudice to their own real interests. (c) And, as none of these states will allow a superiority in the other, therefore neither can dictate or prescribe the rules of this law to the rest; but such rules must necessarily result from those *principles of natural justice in which all the learned of every nation agree; or they depend upon mutual compacts or treaties between the respective communities, in the construction of which there is also no judge to resort to but the law of nature and reason, being the only one in which all the contracting parties are equally conversant and to which they are equally subject.

*67

In arbitrary states this law, wherever it contradicts, or is not provided for by, the municipal law of the country, is enforced by the royal power; but since in England no royal power can introduce a new law, or suspend the execution of the old, therefore the law of nations (wherever any question arises which is

The 7 Jac. I. c. 4, s. 7 (which provided certain punishments for lewd females who had bastards) is repealed by 50 Geo. III. c. 51, s. 1, which enacts "that in cases when & woman shall have a bastard child which may be chargeable to the parish, any two justices before whom such woman shall be brought may commit her, at their discretion, to the house of correction in their district, for a time not exceeding twelve calendar months nor less than six weeks." By section 3, upon the woman's good behaviour during her confinement, any two justices may release and discharge her from further confinement. By section 4, justices are restrained from committing any woman till she has been delivered one month. The child must be chargeable, or likely to become so, in order to authorize a conviction. 2 Nolan, 256, 3d ed.-CHITTY.