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 III is repealed, so far as it disables them from purchasing or inheriting, or authorizes the apprehending or prosecuting the popish clergy, or subjects to perpetual imprisonment either them or any teachers of youth. (5)

In order the better to secure the established church against perils from noncomformists of all denominations, infidels, Turks, Jews, heretics, papists, and sectaries, there are however two bulwarks erected; called the corporation and test acts: (6) 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 takes the oath of office: or, in default of either of these requisites, such [*59] 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 5007. 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 ccclesiastical, 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 amendment.

IV. 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. (7) Whither

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

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

(5) The restrictions, penalties and disabilities. imposed by statute upon persons professing he 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. c. 12-14.

(6) 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.

(7) 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. 555; Updegraph v. Commonwealth, 11 S. and R. 394; and Commonwealth v. Kneeland, 20 Pick. 213, as to leave little to be added by other authorities.

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 speech concerning the Being who is the object of

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. (i)

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 [*60] which, 19 Geo. II, c. 21, which repeals 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 58. 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 57. 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. (8) 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. 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, (j) imitating in the former the express law of God, (k) "thou shalt not suffer a witch to live." And [*61] 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. (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.

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

(k) Exod. xxii, 18.

(i) 1 Ventr. 293. 2 Strange, 831.
(l) 3 Inst. 44. (m) Sp. L. b. 12, c. 5.

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

(n) Mr. Addison, Spect. No. 117.

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 Coùst. Lim. 472, et seq.

(8) [By the 4 Geo. IV, c. 31, this latter provision is repealed.]

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 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 of *Louis XIV, in France, who thought proper by an edict to restrain the tribunals of justice from receiving informations of witchcraft. (0) And [*62]. 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 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. (9)

VII. 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. (q) (10) 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, 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. And persons who shall *corruptly ordain or license any minister, or procure him to be ordained or licensed (which is the true idea of simony), [*63 ] 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:

(0) 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. (p) 1 Hawk. P. C. 7. (g) 3 Inst. 156. (r) See book II. p. 279.

(9) The vagrant act treats these as rogues and vagabonds, and restrains and punishes them accordingly.

(10) But according to 2 Bla. Rep. 1052; 1 Ld. Raym. 449; Moore Rep. 564, simony is not an offence criminally punishable at common law. ]

IX. Profanation of the Lord's day, vulgarly (but improperly) called Sabbathbreaking, is a ninth offence against God and religion, punished by the municipal law of England. (11) 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 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 peopl 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

[*64] parishes, shall use any bull or *bear-baiting, interludes, plays, or other unlawful exercise, or pastimes; on pain that every offender shall pay 3s. 4d. to the poor. This statute dose 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 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. 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) (12) or by some grossly scandalous and public indecency for

(11) 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. and R. 50; Commonwealth v. Lisher, 17 S and R. 160; Shover v, State, 5 Eng. 529; 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.

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.

(12) 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 lewdness and indecency, as shown by Mr. Chitty in the following note. And probably frequenting houses of ill-fame may be so open and scandalous as to con stitute a public offense, also, but single acts of private lewdness certainly are not such at the common law.

which the punishment is by fine and imprisonment. (u) (13) 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 fornification, 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 [*65] 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) (14)

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. (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 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. (15)

(u) 1 Sid. 168. (1)Scobell, 121. (x) See book III, p. 139. (y)See book I, p. 458. (z) Dalt. Just. ch. 11.

(13) [Exposing a party's person to the public view, is an offence contra mores, and indicta ble. See 1 Sid. 168; 2 Camp, 89; 1 Keb. 620. And by the vagrant act. 5 Geo. IV, c. 83, § 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 willfully 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, § 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 been sustained, and imprisonment for six months inflicted.

Procuring or endeavoring to procure the seduction of a girl seems indictable. 3 St. Tr. 519. So is endeavoring 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 church-yard. 2 T. R. 733; Leach, C. L. 4th ed. 497, S. C.; 2 East, P. C. 652. And the mere disposing of a dead body for gain and profit is an indictable offence. Russ. and R. C. C. 366, note; 1 Dowl. and R. N. P. C. 13. And it is a misdemeanor 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.]

(14) 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.

(15) 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 father, and he may be compelled to support the child, either alone or with the assistance of the mother.