another abroad to be educated in the popish religion, or to reside in any religious house abroad for that purpose, or contributes to their maintenance when there; *both the sender, the sent, [*56] and the contributor, are disabled to sue in law or equity, to be executor or administrator to any person, to take any legacy or deed of gift, and to bear any office in the realm, and shall forfeit all their goods and chattels, and likewise all their real estate for life. And where these errors are also aggravated by apostasy, or perversion, where a person is reconciled to the see of Rome, or procures others to be reconciled, the offence amounts to high treason. 2. Popish recusants, convicted in a court of law of not attending the service of the church of England, are subject to the following disabilities, penalties, and forfeitures, over and above those before mentioned. They are considered as persons excommunicated; they can hold no office or employment; they must not keep arms in their houses, but the same may be seized by the justices of the peace; they may not come within ten miles of London, on pain of 1007.; they can bring no action at law, or suit in equity; they are not permitted to travel above five miles from home, unless by license, upon pain of forfeiting all their goods; and they may not come to court under pain of 1007. No marriage or burial of such recusant, or baptism of his child, shall be had otherwise than by the ministers. of the church of England, under other severe penalties. A married woman, when recusant, shall forfeit two-thirds of her dower or jointure, may not be executrix or administratrix to her husband, nor have any part of his goods; and during the coverture may be kept in prison, unless her husband redeems her at the rate of 107. a month, or the third part of all his lands. And, lastly, as a femecovert recusant may be imprisoned, so all others must, within three months after conviction, either submit and renounce their errors, or, if required so to do by four justices, must abjure and renounce the realm; and if they do not depart, or if they return without the king's license, they shall be guilty of felony, and suffer death as felons without benefit of clergy. There is also an inferior species of recusancy (refusing to make the declaration against popery, enjoined by statute 30 Car. II, st. 2, when tendered by the proper magistrate), which, if the party resides within ten miles of London, makes him an absolute recusant convict; or if at a greater distance, suspends him from having any seat in *parliament, keeping [*57] arms in his house, or any horse above the value of five pounds. This is the state, by the laws now in being, (c) of a lay papist. But,

3. Priests.-The remaining species or degree, viz., popish priests, are in a still more dangerous condition. For by statute 11 and 12 Wm. III, c. 4, popish priests or bishops, celebrating mass, or exercising any part of their functions in England, except in the houses of ambassadors, are liable to perpetual imprisonment. And by the statute 27 Eliz. c. 2, any popish priests, born in the dominions of the crown of England, who shall come over hither from beyond sea

(c) Stat. 23 Eliz. c. 1. 27 Eliz. c. 2. 29 Eliz. c. 6. 35 Eliz. c. 2. 1 Jac. I, c. 4. 3 Jac. I, c. 4 and 5. 7 Jac. I. c. 6. 3 Car. I, c. 3. 25 Car. II, c. 2. 30 Car. II st. 2. 1 W. and M. c. 9, 15 and 36. 11 and 12 Wm. III, c. 4. 12 Ann. st. 2, c. 14. 1 Geo. I, st. 2, c. 55. 3 Geo. I, c. 18. 11 Geo. II, c. 17.

(unless driven by stress of weather, and tarrying only a reasonable time, (d) or shall be in England three days without conforming and taking the oaths), is guilty of high treason: and all persons harbouring him are guilty of felony without the benefit of clergy.

Reasons for the severity.-This is a short summary of the laws against the papists, under their three several classes, of persons professing the popish religion, popish recusants convict, and popish priests. Of which the president Montesquieu observes, (e) that they are so rigorous, though not professedly of the sanguinary kind, that they do all the hurt that can possibly be done in cold blood. But, in answer to this, it may be observed (what foreigners who only judge from our statute-book are not fully apprized of), that these laws are seldom exerted to their utmost rigour: and, indeed if they were, it would be very difficult to excuse them. For they are rather to be accounted for from their history, and the urgency of the times which produced them, than to be approved (upon a cool review) as a standing system of law. The restless machinations of the jesuits during the reign of Elizabeth, the turbulence and uneasiness of the papists under the new religious establishment, and the boldness of their hopes and wishes for the succession of the queen of Scots, obliged the parliament to counteract so dangerous a spirit by laws of a great, and then perhaps necessary, severity. The powder-treason, in the succeeding reign, struck a panic into *James I, which operated in different ways: it occasioned the enacting of [*58] new laws against the papists; but deterred him from putting them into execution. The intrigues of Queen Henrietta in the reign of Charles I, the prospect of a popish successor in that of Charles II, the assassination-plot in the reign of King William, and the avowed claim of a popish pretender to the crown in that and subsequent reigns, will account for the extension of these penalties at those several periods of our history. But if a time should ever arrive, and perhaps it is not very distant, when all fears of a pretender shall have vanished, and the power and influence of the pope shall become feeble, ridiculous, and despicable, not only in England, but in every kingdom of Europe; it probably would not then be amiss to review and soften these rigorous edicts: at least till the civil principles of the Roman catholics called again upon the legislature to renew them: for it ought not to be left in the breast of every merciless bigot to drag down the vengeance of these occasional laws upon inoffensive, though mistaken, subjects; in opposition to the lenient inclinations of the civil magistrate, and to the destruction of every principle of toleration and religious liberty.

This hath partly been done by statute 18 Geo. III, c. 60, with regard to such papists as duly take the oath therein prescribed, of allegiance to his majesty, abjuration of the pretender, renunciation of the pope's civil power, and abhorrence of the doctrines of destroying and not keeping faith with heretics, and deposing or murdering princes excommunicated by authority of the see of Rome: in respect of whom only the statute of 11 and 12 Wm. III is repealed, so far as it disables them from purchasing or inheriting, or author

izes the apprehending or prosecuting the popish clergy, or subjects to perpetual imprisonment either them or any teachers of youth.1 Inducement to faithfulness to the church. In order the better to secure the established church against perils from non-conformists of all denominations, infidels, Turks, Jews, heretics, papists, and sectaries, there are however two bulwarks erected; called the corporation and test acts: by the former of which (f) 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 sacrament 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 [*59] takes the oath of office: or, in default of either of these requisites, such election shall be void. The other, called the test act, (g) directs all officers, civil and military, to take the oaths and 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 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 minister and church warden, and also to prove the same by two credible witnesses; upon forfeiture of 500%. and disability to hold the said 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 1753, in favor 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 anima; 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.

IV. Blasphemy.-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 contume

(f) Stat. 13 Car. II, st. 2, c. 1.

(g) Stat. 25 Car. II, c. 2, explained by 9 Geo. II, c. 26.

The restrictions, penalties and disabilities, imposed by statute upon persons professing the Roman Catholic religion, are now nearly all removed. See statutes 10 Geo. IV, c. 7; 7 and 8 Vic., c. 102; 9 and 10 Vic., c. 59; 29 and

30 Vic., c. 22; 30 and 31 Vic., c. 62; May's Const. Hist., cc. 12-14.

2 But these "bulwarks" of the church, having become generally odious, were in 1828 repealed, with the consent even of the prelates, and to the general satisfaction of the nation.

lious reproaches of our Saviour Christ.' 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; (h) for Christianity is part of the laws of England. (¿)

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 [*60] all former ones, every labourer, sailor, or soldier profanely cursing or swearing shall forfeit 18.; 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 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 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 57. to be levied by warrant 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 stage-play, 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.

VI. Witchcraft.- 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, inchantment 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, () imitating in the

(h) 1 Hawk. P. C. 5. The law on the subject of blasphemy is so fully considered in the cases of People v. Ruggles, 8 Johns. 290; State v. Chandler, 2 Harr. 553; Updegraph v. Commonwealth, 11 S. & R. 394; and Commonwealth v. Kneeland, 20 Pick. 206, as to leave little to be added by other authorities.

(i) 1 Ventr. 293. 2 Strange, 834.

The doctrine of our commentator, that "Christianity is part of the law of England," is true in the qualified sense that the law takes notice of the fact that Christianity is the prevailing religion among the people, and that evil

(j) Cod. l. 9, c. 18.

speech concerning the Being who is the object of adoration by the Christian, and malicious reproach or profane ridicule of Christ or the books of the Bible, have an evil effect in sapping the foundations of society and of public order, and are therefore properly punished as crimes. And the punishment of the lower species of profanity may be referred to the same principle. See upon this subject Cooley's Const. Lim. 472, et seq.; 2 Bish. Cr. L., 7th ed., ch. 6.

2 This provision is repealed.

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 [*61] class with heresy, and condemning both to the flames. (7) 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 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 inchantment; 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 impris onment 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 of *Louis XIV, in France, who thought proper by an [*62] edict to restrain the tribunals of justice from receiving informations of witchcraft. (o) 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 person for conjuration, witchcraft, sorcery, or inchantment. But the misdemeanor 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.'

(n) Mr. Addison, Spect. No. 17.

(m) Sp. L. b. 12, c. 5.

(0) Voltaire sieci. 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.

1 The vagrant act treats these as rogues and vagabonds, and restrains and punishes them accordingly.