is the law where a felony is actually complete, in order to do effectual jus tice, that the nearest relations are not suffered to aid or receive one another (9). If the parent assists his child, or the child the parent, if the brother receives the brother, the master his servant, or the servant his mas ter, or even if the husband relieves his wife, who have any of them committed a *felony, the receivers become accessaries ex post [*39 J facto (z). But a feme-covert cannot become an accessary by the receipt and concealment of her husband; for she is presumed to act under his coercion, and therefore she is not bound, neither ought she, to discover her lord (a). 4. The last point of inquiry is, how accessaries are to be treated, considered distinct from principals. And the general rule of the ancient law (borrowed from the Gothic constitutions) (b) is this, that accessaries shall suffer the same punishment as their principals: if one be liable to death, the other is also liable (c): as, by the laws of Athens, delinquents and their abettors were to receive the same punishment (4). Why then, it may be asked, are such elaborate distinctions made between accessaries and principals, if both are to suffer the same punishment? For these reasons: 1. To distinguish the nature and denomination of crimes, that the accused may know how to defend himself when indicted; the commission of an actual robbery being quite a different accusation from that of harbouring the robber. 2. Because, though by the ancient common aw the rule is as before laid down, that both shall be punished alike, yet now by the statutes relating to the benefit of clergy a distinction is made between them: accessaries after the fact being still allowed the benefit of clergy in all cases, except horse-stealing (e) and stealing of linen from bleaching-grounds (f) (10): which is denied to the principals and accessaries before the fact, in many cases; as, among others, in petit treason, murder, robbery, and wilful burning (g). And perhaps if a distinction were constantly to be made between the punishment of principals and accessaries, even before the fact, the latter to be treated with a little less severity than the former, it might prevent the perpetration of many crimes, by increasing the difficulty of finding a person to execute the deed itself; as his danger would be greater than that of his accom- [*40] plices, by reason of the difference of his punishment (h). 3. Because formerly no man could be tried as accessary till after the principal was convicted, or at least he must have been tried at the same time with (s) 3 Inst. 108. 2 Hawk. P. C. 320. a) Hal. P. C 621. (b) See Stiernhook, ibid. (c) 3 Inst. 188. d) Pott. Antiq. b. 1, c. 26. (e) Stat. 31 Eliz. c. 12. (f) Stat. 18 Geo. II. c. 27. (g) 1 Hal. P. C. 615. (h) Beccar. c. 37. (9) That is (as stated in the last section) if to any felony punishable under this Act, (er done in order to prevent an arrest, &c. (10) See ante 38 in notis. By st. 9 Geo. IV. c. 31, accessaries before he fact in cases of murder, are rendered equally guilty with the principal. By st. 7 and 8 Geo. IV. c. 29, it is enacted, in the 61st section, "That in every case of telony punishable under this Act, every principal in the second degree, and every accessary before the fact, shall be punishable with death, or otherwise in the same manner as the principal in the first degree is by this Act puushable; and every accessary after the fact VOL. II. 53 cept only a receiver of stolen property,) shall on conviction be liable to be imprisoned for any term not exceeding two years; and every person who shall aid, abet, counsel, or procure the commission of any misdemeanor punish able under this Act, shall be liable to be in dicted and punished as a principal offender." And by 7 and 8 Geo. IV. c. 30, a similar enactment is made in § 26 to the above. These three Acts incorporate nearly every offence of murder, felony, and misdemeanor mentioned and adverted to by the earned Commentator him though that law is now much altered, as will be shewn more fully in its proper place (11). 4. Because, though a man be indicted as accessary and acquitted, he may afterwards be indicted as principal: for an acquittal of receiving or counselling a felon, is no acquittal of the felony itself but it is matter of some doubt, whether, if a man be acquitted as principal, he can be afterwards indicted as accessary before the act; since those offences are frequently very nearly allied, and therefore an acquittal of the guilt of one may be an acquittal of the other also (i). But it is clearly held, that one acquitted as principal may be indicted as an acces. sary after the fact; since that is always an offence of a different species of guilt, principally tending to evade the public justice, and is subsequent in its commencement to the other. Upon these reasons the distinction of principal and accessary will appear to be highly necessary; though the punishment is still much the same with regard to principals, and such accessaries as offend before the fact is committed (12). CHAPTER IV. OF OFFENCES AGAINST GOD AND RELIGION (1). In the present chapter we are to enter upon the detail of the several species of crimes and misdemeanors, with the punishments annexed to uach by the law of England. It was observed in the beginning of this book (a), that crimes and misdemeanors are a breach and violation of the public rights and duties owing to the whole community, considered as a community, in its social aggregate capacity. And in the very entrance of these Commentaries (b) it was shewn that human laws can have no concern with any but social and relative duties, being intended only to regulate the conduct of man, considered under various relations, as a member of civil society. All crimes ought therefore to be estimated merely according to the mischiefs which they produce in civil society (c); and of consequence private vices or breach of mere absolute duties, which man s bound to perform considered only as an individual, are not, cannot be, he object of any municipal law, any farther than as by their evil example, or other pernicious effects, they may prejudice the community, and thereby becomes a species of public crimes. Thus the vice of drunkenness, if committed privately and alone, is beyond the knowledge, and of course beyond the reach of human tribunals: but if committed publicly, in the face of the world, its evil example makes it liable to temporal censures. The vice of lying, which consists (abstractedly taken) in a criminal vio lation of truth, and therefore in any shape is derogatory from [ *42] sound morality, is not however taken notice of by our law, unless it carries with it some public inconvenience, as spreading false news, or some social injury, as slander and malicious prosecution, for which a private recompense is given. And yet drunkenness and malevolent lying are in foro conscientiae as thoroughly criminal when they are not, as when they are attended with public inconvenience. The only difference is, that both public and private vices are subject to the vengeance of eternal jus tice; and public vices are besides liable to the temporal punishment of human tribunals. On the other hand; there are some misdemeanors which are punished by the municipal law, that have in themselves nothing criminal, but are made unlawful by the positive constitutions of the state for public inconvenience; such as poaching exportation of wool, and the like. These are naturally no offences at all; but their whole criminality consists, in their disobedience to the supreme power which has an undoubted right, for the well-being and peace of the community to make some things unlawful which are in themselves indifferent. Upon the whole, therefore though part of the offences to be enumerated in the following sheets are offences against the revealed law of God, others against the law of nature, and some are offences against neither; yet in a treatise of municipal law we must consider them all as deriving their particular guilt here punishable, from the law of man. Having premised this caution I shall next proceed to distribute the several offences, which are either directly or by consequence injurious to civil society and therefore punishable by the laws of England under the following general heads: first, those which are more immediately injurious to God and his holy religion; secondly, such as violate and transgress the law of nations; thirdly, such as more especially affect the sovereign executive power of the state, or the king and his government; fourthly, such as more directly infringe the rights of the [*43 ] public or commonwealth; and, lastly, such as derogate from those rights and duties, which are owing to particular individuals, and in the preservation and vindication of which the community is deeply interested. First then, of such crimes and misdemeanors, as more immediately offend Almighty God, by openly transgressing the precepts of religion either natural or revealed; and mediately by their bad example and consequence, the law of society also: which constitutes that guilt in the action, which human tribunals are to censure. 1. Of this species the first is that of apostasy, or a total renunciation of christianity, by embracing either a false religion, or no religion at all. This offence can only take place in such as have once professed the true reli gion. The perversion of a christian to judaism, paganism, or other false religion, was punished by the emperors Constantius and Julian with confiscation of goods (d); to which the emperors Theodosius and Valentinian added capital punishment, in case the apostate endeavoured to pervert others to the same iniquity (e): a punishment too severe for any temporal aws to inflict upon any spiritual offence, and yet the zeal of our ances (4) Cod. 1. 7. 1 (e) Ibid. 6. (2) See reference ante 41. note 1. tors imported it into this country; for we find by Bracton (f) that in dis time apostates were to be burnt to death. Doubtless the preservation of christianity, as a national religion, is, abstracted from its own intrinsic truth, of the utmost consequence to the civil state which a single instance will sufficiently demonstrate. The belief of a future state of rewards and punishments, the entertaining just ideas of the moral attributes of the Supreme Being, and a firm persuasion that he superintends and will final. ly compensate every action in human life (all which are clearly revealed in the doctrines, and forcibly inculcated by the precepts, of our Saviour Christ), these are the grand foundation of all judicial oaths; which call God to witness the truth of those facts, which perhaps may be only [44] known to him and the party attesting: all moral evidenee, *there. fore, all confidence in human veracity, must be weakened by apostasy, and overthrown by total infidelity (g). Wherefore all affronts to christianity, or endeavours to depreciate its efficacy, in those who have once professed it, are highly deserving of censure. But yet the loss of life is a heavier penalty than the offence, taken in a civil light, deserves: and taken in a spiritual light, our laws have no jurisdiction over it. This punishment therefore has long ago become obsolete; and the offence of apostasy was for a long time the object only of the ecclesiastical courts, which corrected the offender pro salute animae. But about the close of the last century, the civil liberties to which we were then restored being used as a cloke of maliciousness, and the most horrid doctrines subversive of all religion being publicly avowed both in discourse and writings, it was thought necessary again for the civil power to interpose, by not adraitting those miscreants (h) to the privileges of society, who maintained such principles as destroyed all moral obligation. To this end it was enacted by statute 9 & 10 W. III. c. 32, that if any person educated in, or having made profession of, the christian religion, shall, by writing, printing, teaching, or advised speaking, deny the christian religion to be true, or the holy scriptures to be of divine authority, he shall upon the first offence be rendered incapable to hold any office or place of trust; and, for the second, be rendered incapable of bringing any action, being guardian, executor, legatee, or purchaser of lands, and shall suffer three years' imprisonment without bail. To give room however for repentance, if, within four months after the first conviction, the delinquent will in open court publicly renounce his error, he is discharged for that once from all disabilities. II. A second offence is that of heresy, which consists not in [*45] a total denial of christianity, but of some of its essential *doc trines, publicly and obstinately avowed; being defined by sir Matthew Hale, "sententia rerum divinarum humano sensu excogitata, palam docta et pertinaciter defensa (i)" And here it must also be acknowledged that particular modes of belief or unbelief, not tending to overturn christianity itself, or to sap the foundations of morality, are by no means the object of coercion by the civil magistrate. What doctrines shall the refore be adjudged heresy, was left by our old constitution to the determination of the ecclesiastical judge; who had herein a most arbitrary latitude al.owed him. For the general definition of an heretic given by Lyndelibus interpositis tum judicibus, tum testibus? Crc. de LL. ii. 7. (f) t. 3, c. 9. (g) Utiles esse opiniones has, quis negat, cum intelligat, quam mulla firmentur jurejurando; quantae salutis sint foederum religiones; quam multos divini supplicii metus a scelere revocavit; quamque emcta sit societas civium inter ipsos Diis immorta (h) Mescroyantz in our ancient law books is the name of unbelievers. (i) 1 Hal. P. C. 384. wode (k), extends to the smallest deviation from the doctrines of holy church: "haereticus est qui dubitat de fide catholica, et qui negligit servare ea, quae Romana ecclesia statuit, seu servare decreverat." Or, as the statute 2 Hen. IV. c 15. expresses it in English, "teachers of erroneous opinions, contrary to the faith and blessed determinations of the holy church." Very contrary this to the usuage of the first general councils, which defined all heretical doctrines with the utmost precision and exactness. And what ought to have alleviated the punishment, the uncertainty of the crime, seems to have enhanced it in those days of blind zeal and pious cruelty. It is true that the sanctimonious hypocrisy of the canonists went at first no farther than enjoining penance, excommunication, and ecclesiastical deprivation, for heresy; though afterwards they proceeded boldly to im prisonment by the ordinary, and confiscation of goods in pios uses. But in the mean time they had prevailed upon the weakness of bigotted prin ces, to make the civil power subservient to their purposes, by making heresy not only a temporal, but even a capital offence: the Romish ecclesiastics determining, without appeal, whatever they pleased to be heresy, and shifting off to the secular arm the odium and drudgery of executions; with which they themselves were too tender and delicate to intermeddle. Nay, they pretended to intercede and pray, on behalf of the convicted heretic, ut citra mortis periculum sententia circa eum moderatur (l) : well *knowing at the same time that they were delivering the [*46] unhappy victim to certain death. Hence the capital punishments inflicted on the ancient Donatists and Manichaeans by the emperors Theodosius and Justinian (m): hence also the constitution of the emperor Frederic mentioned by Lyndewode (n), adjudging all persons without distinction to be burnt with fire, who were convicted of heresy by the ecclesiastical judge. The same emperor, in another constitution (o), ordained that if any temporal lord, when admonished by the church, should neglect to clear his territories of heretics within a year, it should be lawful for good catholics to seize and occupy the lands, and utterly to exterminate the heretical possessors. And upon this foundation was built that arbitrary power, so long claimed and so fatally exerted by the pope, of disposing even of the kingdoms of refractory princes to more dutiful sons of the church. The immediate event of this constitution was something singular, and may serve to illustrate at once the gratitude of the holy see, and the just punishment of the royal bigot: for upon the authority of this very constitution, the pope afterwards expelled this very emperor Frederic from his kingdom of Sicily, and gave it to Charles of Anjou (p). Christianity being thus deformed by the daemon of persecution upon the continent, we cannot expect that our own island should be entirely free from the same scourge. And therefore we find among our ancient precedents (9) a writ de haeretico comburendo, which is thought by some to be as ancient as the common law itself. However it appears from thence, that the conviction of heresy by the common law was not in any petty ecclesiastical court, but before the archbishop himself in a provincial synod; and that the delinquent was delivered over to the king to do as he should please with him: so that the crown had a control over the spiritual power, and might pardon the convict by issuing no process against (k) cap de haereticis. (1) Decretal, l. 5, t. 40, c. 27 (m) Cod. l. 1, tit. 5. (a) c de haereticis (0) Cod. 1.5.4. (p) Baldus in Cod. 1. 5. 4. |