God, "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 class with heresy, and condemning both to the flames. The President Montesquieum [61] 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," that in general there has been such a thing as witchcraft, though one can not 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 enchantment; 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 offense, 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 neighbors, 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. [ 62 ] 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 en * Exod., xxii., 18. 13 Inst., 44. m Sp. L., b. 12, c. 5. Mr. Addison, Spect., No. 117. • Voltaire, Siecl. Louis XIV., ch. 29, Modern Univ. History, xxv., 215. Yet VII. Relig ious impostors. ony. chantment." 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." VII. A seventh species of offenders in this class are all religious impostors; 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 corporeal punishment.p VIII. Sim- VIII. Simony, or the corrupt presentation of any one to an ecclesiastical benefice for gift or reward, is also to be considered as an offense 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. 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 taker shall in like manner forfeit double the value of the money or other corrupt consideration." And persons who shall corruptly (18) By the Vagrant Act, 5 Geo. IV., c. 8, s. 4, persons pretending or professing to tell fortunes, or using any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose on any of his majesty's subjects, are rogues and vagabonds, subject to a year's imprisonment and hard labor. See further, as to this and the Vagrant Act, post, 169.[CHITTY.] (19) But, according to 2 Bla. Rep., 1052; 1 Ld. Raym., 449; Moore, Rep., 564, simony is not an offense criminally punishable at common law.-[CHITTY.] r See vol. ii., p. 279. (20) Any resignation or exchange for money is corrupt, however apparently fair the transaction; as where a father, wishing that his son in orders should be employed in the duties of his profession, agreed to secure, by a bond, the payment of an annuity exactly equal to the annual produce of a benefice, in consideration of the incumbent's resigning in favor of his son. The annuity being af terward in arrear, the bond was put in suit, and the defendant pleaded the simoniacal resignation in bar; and Lord Mansfield and the court, though they declared that it was an unconscientious defense, yet as the resignation had been made for money, determined that it was corrupt and simoniacal, and in consequence that the bond was void. Young v. Jones, E. T., 1782.-[CHRISTIAN.] See further, as to simony, ante, vol. ii.. 278, notes 14 to 21.-[CHITTY.] ordain or license any minister, or procure him to be ordained or licensed (which is the true idea of simony), shall incur a like forfeiture of forty pounds; and the minister himself of ten [63] pounds, besides an incapacity to hold any ecclesiastical preferment for seven years afterward. 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." bath break IX. Profanation of the Lord's day, vulgarly (but improperly) IX. Sabcalled sabbath-breaking, is a ninth offense against God and re- ing. ligion, 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 Christianity, and the corruption of morals which usually follows its profanation, "the keeping one day in 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 labor, without any stated times of recalling them to the worship of their Maker.' And, therefore, the laws of King Athelstans 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 persons shall assemble out of their own parishes for any sport whatsoever upon this day; nor, in their parishes, shall use any bull or bear baiting, interludes, plays, or other unlawful exercises or pastimes, on pain that every offender shall pay 3s. 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 serv- [ 64 ] ice 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 • C. 24. (21) The stat. 9 Geo. IV., c. 99, permits a bond to be taken to secure the resignation of a living in favor of any person whomsoever, and in favor of any X. Drunkenness. at certain hours, and works of necessity or charity, on forfeiture of 5s. 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 5s., or the sitting six hours in the (21) Goods exposed to sale upon a Sunday are forfeited to the use of the poor, except that one third may be allowed the informer; but milk may be sold before nine in the morning, and after four in the afternoon. 29 Car. II., c. 7. Mackerel, also, may be sold on Sundays before and after divine service. 10 & 11 Will. III., c. 24.-[CHRISTIAN.] By the 3 Car. I., c. 1, no carrier with any horse, nor wagonman with any wagon, nor carrier with any cart, nor wainman with any wain, nor drover with any cattle, shall, by themselves or any other, travel on Sunday, on pain of 20s.; or if any butcher, by himself or any other, shall kill or sell any victuals on Sunday, he shall forfeit 6s. 8d. But selling meat on Sunday is no offense at common law. 2 Stra., 702; 1 Saund., 249. The driver of a van traveling to and from London and York is a carrier within this act, and liable to the penalty for traveling on a Sunday. 3 B. & C., 164; 4 D. & R., 824, S. C. By the 1 & 2 Geo. IV., c. 50, s. 11, bakers out of the city and liberties of London, and the weekly bills of mortality, and ten miles of the Royal Exchange, must not, on Sunday, make or bake, or sell bread, rolls, or cakes, except to trav-, elers, or in cases of urgent necessity; or bake or deliver any meat, &c., or victuals after half past one; or in any other manner exercise the trade of a baker, except as aforesaid, and except as to superintending the sponge to prepare the dough for the following day; and no meat, &c., or victuals shall be brought to or taken from any bake-house during divine service, or a quarter of an hour before, under a penalty for the first of fense of 5s., for the second 108., and every other 20s., besides costs and expenses, &c., of prosecutor. And by 3 Geo. IV., c. 106, s. 16, bakers within the limits aforesaid shall not make or bake bread, rolls, or cakes on Sunday, nor, except between nine and one, sell, or expose to sale, any bread, &c., nor bake or deliver any meat, &c., or victuals, or in any way exercise the trade of a baker, except to prepare the dough, &c., for the following day, under a penalty of 10s. for the first, 20s. for the second, and 40s. for every subsequent offense, besides costs and expenses of prosecution, &c., provided that bakings may be delivered till half past one. By the 13 Geo. III., c. 80, killing game on Sunday is subject to a penalty of £20, and not less than £10, for the first offense, and £30, and not less than £20, for the second offense, and for every subsequent offense £50, to be recovered upon indictment at the ses sions. By the 29 Car. I., c. 7, s. 6, serving process on a Sunday is prohibited. See ante, vol. iii., 290. By the same act, s. 5, no hundred shall be answerable if a person traveling on a Sunday be robbed, but the inhabitants must raise the hue and cry; the act does not extend to persons traveling to church, though probably it would include traveling for pleasure, or upon visits. See 1 Stra., 406; Com., 345.[CHITTY.] Forty watermen are permitted to ply upon the Thames between Vauxhall and Limehouse on Sundays. 11 & 12 Will. III., c. 21. (See, also, the 7 & 8 Geo. IV., c. 75, s. 42.) Fish carriages are allowed to travel on Sundays, either la den or returning empty. 2 Geo. III., c. 15. Persons exercising their calling on a Sunday are only subject to one penalty; for the whole is but one offense, or one act of exercising, though continued the whole day. Cowp., 640. The 21 Geo. III., c. 49, was passed to restrain an indecent practice, which had become very prevalent in London and Westminster; it enacts that if any house, room, or place is opened upon a Sunday for any public entertainment, or for debating upon any subject whatever, to which persons are admitted by money or tickets, the keeper of it shall forfeit £200, the manager or president £100, and the receiver of the money or tickets £50; and every person advertising, or printing an advertisement of such a meeting, shall in like manner forfeit £50 for every offense, to any person who will prosecute.-[CHRISTIAN.] * In New York there is a statute to enforce the observance of Sunday.--(1 R. S., 675.) stocks;" by which time the statute presumes the offender will have regained his senses, and not be able to do mischief to his neighbors. 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 ale-houses, and punish persons found tippling therein, or the masters of such houses permitting them.* XI. The last offense which I shall mention, more imme- XI. Open lewdness, diately against religion and morality, and cognizable by the and offenses temporal courts, is that of open and notorious lewdness, either against pubby frequenting houses of ill fame, which is an indictable of fense; or by some grossly scandalous and public indecency, [ 65 ] for which the punishment is by fine and imprisonment.u" In Poph., 208. (22) That is, if the offender is not able to pay the penalty. The punishment is not, as above stated, imposed by the 4 Jac. I., c. 5, but by the 21 Jac. I., c. 7, 8. 1, 3. The 4 Jac. I. compels constables, &c., to do their duty in punishing drunkards. By the 21 Jac. I., s. 3, upon a second offense, the offender is to be bound in a recognizance of £10, with two sureties for good behavior; but by 4 Jac. I., c. 5, s. 11, the offender must in all cases be convicted in six months. By the 22 Geo. II., c. 33, persons in the navy being drunk may be punished by a court-martial.-[CHITTY.] (23) The acts now in force regulating the licensing and keeping, &c., of alehouses, will be found collected in Burn's Justice, tit. Ale-houses. The provisions are too numerous and practical to be given here.-[CHITTY.] u 1 Siderf., 168. 789; 1 Barn. Rep., 29; 4 Burr., 2527, Publicly selling and buying a wife is Procuring or endeavoring to procure the seduction of a girl, seems indictable. 3 St. Tri., 519. So is endeavoring to lead a girl into prostitution. 3 Burr., 1438. And see post, 209, 212, as to the offense of seduction. It is an indictable offense to dig up and carry away a dead body out of a church-yard. 2 T. R., 733; Leach, C. L., ed. 497, S. C.; 2 East, P. C., 652; (24) Many offenses of private incon- post, 236; ante, vol. ii., 429. And the tinence fall properly and exclusively un- mere disposing of a dead body for gain der the jurisdiction of the ecclesiastical and profit is an indictable offense. Russ. court, and are appropriated to it. But & R., C. C., 366, note; 1 Dowl. & R., where the incontinence or lewdness is public, or accompanied with conspiracy, it is indictable. N. P. C., 13. And it is a misdemeanor Exposing a party's person to the public view is an offense contra bonos mores, and indictable. See 1 Sid., 168; 2 All such acts of indecency and immoCamp., 89; 1 Keb., 620. And by the rality are public misdemeanors, and the Vagrant Act, 5 Geo. IV., c. 83, s. 4, ex- offenders may be punished either by an posing a man's person, with intent to in- information granted by the Court of sult a female, is an offense for which the King's Bench, or by an indictment preoffender may be treated as a rogue and ferred before a grand jury at the Assizes vagabond; and so is the willfully expos- or Quarter Sessions.-[CHITTY.] ing an obscene print or indecent exhibi- As to the offense of keeping or fretion, indeed, this would be an indicta- quenting a bawdy house, see post, 167. ble offense at common law. 2 Stra., * Drunkenness is punished in New York by placing the person and estate of the drunkard in charge of a committee, treating him as a lunatic.-(2 R. S., 52.) lic decency. |