VII. Religious imposters.-A seventh species of offenders in this class are all religious imposters; 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) 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. (2) 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), (?) enacts, that if any patron, for money or any other corrupt consideration or promise, directly or indirectly given, shall present, admit, institute, induct, 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 the taker shall in like manner forfeit double the value of the money or other corrupt consideration. And persons who shall *corruptly ordain or license any minister or procure him to be ordained [*63] 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 devolution of the right of election for that turn to the crown. IX. Profanation of the Lord's day, vulgarly (but improperly) called Sabbath 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 Chris In the United States generally, by statute, persons are prohibited by law from following their ordinary calling on Sunday, and contracts entered into on that day are made void. These statutes have sometimes been assailed as unconstitutional, because encroaching upon religious liberty; but the courts have sustained them. Commonwealth v. Wolf, 3 S. & R. 48; Commonwealth v. Lisher, 17 S. & R. 155; Shover v. State, 10 Ark. 259; Vogelsong v. State, 9 Ind. 112; State v. Ambs, 20 Mo. 214; Cincinnati v. Rice, 15 Ohio, 225; Specht v. Commonwealth, 8 Penn. St. 312. [Sunday contracts were not void at (r) See Book II, p. 279. common law. As to exceptions in such statutes of works of necessity or charity, see Commonwealth v. Knox, 16 Mass. 76; Myers v. State, 1 Conn. 502; Murray v. Commonwealth, 24 Penn. St. 270; Allen v. Duffie, 43 Mich. 1; S. C., 38 Am. Rep. 159; Mueller v. State, 76 Ind. 310; S. C., 40 Am. Rep. 245; Bucher v. Railroad Co., 131 Mass. 156; S. C., 41 Am. Rep. 216; Youoski v. State, 79 Ind. 393; S. C., 41 Am. Rep. 614; Dale v. Knapp, 98 Penn. St. 389. tianity, 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 person shall assemble out of their own parishes, for any sport whatsoever upon this day; nor, in their par ishes, shall use any bull or *bear-baiting, interludes, plays, [*64] or other unlawful exercises, or pastimes; on pain that every offender shall pay 38. 4d. to 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 in public houses, milk at certain hours, and works of necessity or charity, on forfeiture of 58. Nor shall any drover, carrier, or the like, travel upon that day, under pain of twenty shillings. 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: 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. XI. Lewdness.-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 indictable offence; (t)1 (8) C. 24. (t) Poph. 208. The keeping of a bawdy-house is a nuisance at the common law, and indictable as such. Smith v. State, 6 Gill, 425; Smith v. Commonwealth, 6 B. Monr. 21; State v. Evans, 5 Ired. 603; Commonwealth v. Harrington, 3 Pick. 26; People v. Erwin, 4 Denio, 129. And any form of open and notorious lewd ness and indecency. See the following note. And probably frequenting houses of ill-fame may be so open and scandalous as to constitute a public offense, also, but single acts of private lewdness certainly are not such at the common law. or by some grossly scandalous and public indecency for which the punishment is by fine and imprisonment. (u)1 In the year 1650, when the ruling powers 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 a contrary extreme of licentiousness, 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, [*65] according to the rules of the canon law; a law which has treated the offense 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)2 Bastardy.-But, before we quit this subject, we must take notice of the temporal punishment 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. (2) 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 in (u) 1 Sid. 168. (y) See book I, p. 458. (w) Scobell, 121. (x) See book III, p. 139. (z) Dalt. Just. ch. 11. 1 The indecent exposure of one's person to public view is an indictable of fense at common law. 1Sid. 168; Britain v. State, 3 Humph. 203; State v. Roper, 1 Dev. and Bat. 208; State v. Rose, 32 Mo. 560. It would seem, how ever, that the exposure must be such as would be offensive to more than one person. See Commonwealth v. Catlin, 1 Mass. 8; State v. Millard, 18 Vt. 574. Publishing obscene books and pictures was indictable at common law. Commonwealth v. Holmes, 17 Mass. 336; Commonwealth v. Sharpless, 2 S. and R. 91. It is also in many states made indictable by statute. To procure the seduction of a woman, or to lead one into prostitution, or to conspire to seduce one, are crimes at common law. 3 Burr. 1434. As to the force of American statutes punishing enticement,made criminal by statute. for purposes of prostitution, see Kauffman v. People, 18 N. Y. (Sup. Ct.) 82; People v. Roderigas, 49 Cal. 9; Osborn v. State, 52 Ind. 526; People v. Carrier, 46 Mich. 442. Under the old English law there was in strictness no property in a dead body. Burial rights were within the cognizance of ecclesiastical courts. But removal of a dead body and stealing the grave clothes were indictable offenses. In the United States it has been held that there is a quasi-property in a dead body; that relatives have rights over it which a court of equity will protect, and enjoin the removal of dead bodies against their will. See Pierce v. Proprietors, &c., 10 R. I. 227; S. C., 14 Am. Rep. 667: Bogert v. Indianapolis, 13 Ind. 134, 138; Guthrie v. Weaver, 1 Mo. App. 136; Wynkoop v. Wynkoop, 42 Penn. St. 293; Meagher v. Driscoll, 99 Mass. 281. In the United States the violation of graves and defacing of monuments, &c., is generally 2 Adultery and seduction are punished criminally in some of the United States. In others the only redress is by civil action for the recovery of damages. flicted 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 justices 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.1 [*66] *CHAPTER V. OF OFFENCES AGAINST THE LAW OF NATIONS. 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 [*67] 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. 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 (a) Ff. 1, 1, 9. (b) See book I, p. 43. 1 The statute 7 James I, c. 4, was repealed by 50 Geo. III, c. 51, which made new provisions for these cases. In the United States the statutes upon the subject of bastard children do not usually go much beyond the protection of the public against the bastard becoming a public charge. With this object in view proceedings may be taken against the putative (c) Sp. L. b. 1, c. 3. father, and he may be compelled to support the child, either alone or with the assistance of the mother. 2 The offenses enumerated in this chapter are in the United States cognizable by the federal courts. They will be found treated of by Mr. Wheaton in his International Law, as well as in other treatises on that subject, and those on criminal law. law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land. And those acts of parliament which have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom: without which it must cease to be a part of the civilized world. Thus, in mercantile questions, such as bills of exchange, and the like; in all marine causes, relating to freight, average, demurrage, insurances, bottomry, and others of a similar nature; the law merchant, (d) which is a branch of the law of nations, is regularly and constantly adhered to. So, too, in all disputes relating to prizes, to shipwrecks, to hostages, and ransom bills, there is no other rule of decision but this great universal law, collected from history and usage, and such writers of all nations and languages as are generally approved and allowed of.1 Scope of treatment.- But though in civil transactions and questions of property between the subjects of different states, the law of nations has much scope and extent, as adopted by the law of England; yet the present branch of our inquiries will fall within. [*68] a narrow compass, as offences against the law of nations can rarely be the object of the criminal law of any particular state. For offences against this law are principally incident to whole states or nations, in which case recourse can only be had to war; which is an appeal to the God of hosts, to punish such infractions of public faith as are committed by one independent people against another: neither state having any superior jurisdiction to resort to upon earth for justice. But where the individuals of any state violate this general law, it is then the interest as well as duty of the government, under which they live, to animadvert upon them with a becoming severity, that the peace of the world may be maintained. For in vain would nations in their collective capacity observe these universal rules, if private subjects were at liberty to break them at their own discretion, and involve the two states in a war. It is therefore incumbent upon the nation injured, first to demand satisfaction and justice to be done on the offender, by the state to which he belongs, and, if that be refused or neglected, the sovereign then avows himself an accomplice or abettor of his subject's crime, and draws upon his community the calamities of foreign war. The principal offences against the law of nations, animadverted on as such by the municipal laws of England, are of three kinds: 1. Violation of safe-conducts; 2. Infringement of the rights of ambassadors; and 3. Piracy. I. Violation of passports.- As to the first, violation of safeconducts or passports, expressly granted by the king or his ambassadors (e) to the subjects of a foreign power in time of mutual war; or committing acts of hostilities against such as are in amity, league, 1 The ransom of ships is forbidden by and securities for that purpose are statute 33 Geo. III, c. 66, and contracts made void. |