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always an offense 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 accessory will appear to be highly necessary; though the punishment is still much the same with regard to principals, and such accessories as offend before the fact is committed.


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In the present chapter we are to enter upon the detail of the several species of crimes and misdemeanors, with the punishment annexed to each 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 it was shown 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; and, of consequence, private vices, or the breach of mere absolute duties, which man is bound to perform considered only as an individual, are not, can not be, the object of any municipal law; any further than as by their evil example, or other pernicious effects, they may prejudice the community, and thereby become 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 violation of truth, [42] and therefore in any shape is derogatory from 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 justice; and public vices are besides liable to the temporal punishments of human tribunals.

a See p. 5.

(1) See in general, 1 East, P. C., 1 to 36. 2 Chitty's Cr. L., 13 to 34, and id.,

b See vol. i., p. 123, 124.

Beccar., ch. 8.

14, as to libels, &c., against the Christian religion, &c.-[CHITTY.]*

See, also, Starkie on Slander, vol. ii., p. 129, et seq. Amer. ed., 1843.

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 convenience. Such as poaching, exportation of wool, and the like. These are naturally no offenses 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 were in themselves indifferent. Upon the whole, therefore, though part of the offenses to be enumerated in the following sheets are offenses against the revealed law of God, others against the law of nature, and some are offenses 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.

the subject.

Having premised this caution, I shall next proceed to dis- Division of tribute the several offenses, 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 [ 43 ] government; fourthly, such as more directly infringe the rights of the 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 imme- FIRST. Of diately offend Almighty God, by openly transgressing the pre- against God cepts of religion, either natural or revealed; and mediately, and religion. by their bad example and consequence, the law of society also; which constitutes that guilt in the action which human tribunals are to censure.

I. Of this species the first is that of apostasy, or a total re- I. Apostasy. nunciation of Christianity, by embracing either a false religion, or no religion at all. This offense can only take place in such as have once professed the true religion. 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 endeavored to pervert others to the same iniquity. A punishment too severe for any temporal laws to inflict upon any spiritual offense; and yet the zeal of our ancestors imported it into this country;

a Cod., 1, 7, 1.

e Ibid., 6.

(2) No longer punishable.

for we find by Bractonf that in his time apostates were to be burned 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 finally compensate every action in human life (all which are clearly revealed in the doctrines, and forcibly inculcated by the precepts, of our Savior Christ), these are the grand foundation of all judicial oaths; which call God to witness the truth of those facts, which per[44] haps may be only known to him and the party attesting; all moral evidence, therefore, all confidence in human veracity, must be weakened by apostasy, and overthrown by total infidelity. Wherefore, all affronts to Christianity, or endeavors 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 offense, 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 offense of apostasy was for a long time the object only of the ecclesiastical courts, which corrected the offender pro salute animæ. But about the close of the last century, the civil liberties to which we were then restored being used as a cloak 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 admitting those miscreantsh 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 offense 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.*

f L. 3, c. 9.

8 Utiles esse opiniones has, quis negat, cum intelligat, quam multa firmentur jurejurando; quanta salutis sint fæderum religiones; quam multos divini supplicii metus a scelere revocarit; quamque sancta

* For the offense of apostasy there is no punishment other than what is in

sit societas civium inter ipsos, Diis immortalibus interpositis tum judicibus, tum testibus? Cic., De LL., ii., 7.

Meseroyantz, in our ancient law books, is the name of unbelievers.

II. A second offense is that of heresy, which consists not in II. Heresy. a total denial of Christianity, but of some of its essential doc- [ 45 ] trines, publicly and obstinately avowed; being defined by Sir Matthew Hale, “sententia rerum divinarum humano sensu excogitata, palam docta et pertinaciter defensa." 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, therefore, be adjudged heresy, was left by our old constitution to the determination of the ecclesiastical judge, who had herein a most arbitrary latitude allowed him. For the general definition of a heretic, given by Lyndewode,k extends to the smallest deviations from the doctrines of holy Church: "hæreticus est qui dubitat de fide Catholicà, et qui negligit servare ea, quæ Romana ecclesia statuit, seu servare decreverit." 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 usage 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 further than enjoining penance, excommunication, and ecclesiastical deprivation, for heresy; though afterward they proceeded boldly to imprisonment by the ordinary, and confiscation of goods in pios usus. But in the mean time, they had prevailed upon the weakness of bigoted princes to make the civil power subservient to their purposes, by making heresy not only a temporal, but even a capital offense; 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; well knowing, at the same time, that they were delivering the unhappy victim to certain death. Hence the capital punishments inflicted on the ancient Donatists and Manichæans by the Emperors Theodosius and Justinian: hence, also, the constitution of the Emperor Frederic, [ 46 ] mentioned by Lyndewode;" adjudging all persons, without distinction, to be burned with fire who were convicted of heresy

1 Hal., P. C., 384.
Cap. de Hæreticis.

1 Decretal., 1. 5, t. 40, c. 27.

flicted by the Church. III., c. 32.

m Cod., 1. 1, tit. 5.


Cap. de Hæreticis.

There is no statute in New York like that of 9 & 10 W.

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