Sivut kuvina

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) [*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 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 [*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 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 meat in public houses, milk 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 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; (f) (12) or by some grossly scandalous and public indecency for (t) Poph. 208.

(8) C. 24,

(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 r.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 . 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 unfash[*65] ionable rigour. And these offences have been ever since left to the feeble 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.; 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 K. 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.



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. (1)

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 justice, in which all the learned of every nation [*67] 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 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 unversal law, collected from history and usage, and such writers of all nations and languages as are generally approved and allowed of. (2)

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 a narrow compass, as offences against the law of nations can rarely be the object of the criminal law of any particular state. For

[ *68]

(a, Ff, 1, 1, 9.

(b) See book I, p. 43.

(c) Sp. L. b. 1, c. 7.

(d) See book I, p. 273.

(1) The offences 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.

(2) The ransom of ships is forbidden by statute 33 Geo. III, c. 66, and contracts and securities for that purpose are made roid.


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 satistaction 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. Infringements of the rights of ambassadors; and 3. Piracy.

I. Ás to the first, violation of safe-conducts 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, or truce with us, who are here under a general implied safe-conduct: these are breaches of the public faith, without the preservation of which there can be no intercourse or commerce between one nation and another: and such offences may, according to the writers on the law of nations, be a just ground of a national war; since it is not in the power of the foreign prince [*69] to cause justice to be done to his subjects by the very individual delinquent, but he must require it of the whole community. And as during the continuance of any safe-conduct, either express or implied, the foreigner is under the protection of the king and the law: and, more especially, as it is one of the articles of magna carta, (f) that foreign merchants should be entitled to safe-conduct and security throughout the kingdom; there is no question but that any violation of either the person or property of such foreigner may be punished by indictment in the name of the king, whose honour is more particularly engaged in supporting his own safe-conduct. And, when this malicious rapacity was not confined to private individuals, but broke out into general hostilities, by the statute 2 Hen. V, st. 1, c. 6, breaking of truce and safe-conducts, or abetting and receiving the truce-breakers, was (in affirmance and support of the law of nations) declared to be high treason against the crown and dignity of the king; and conservators of truce and safe-conducts were appointed in every port, and empowered to hear and determine such treasons (when committed at sea) according to the ancient marine law then practiced in the admiral's court; and, together with two men learned in the law of the land, to hear and determine according to that law the same treasons when committed within the body of any county. Which statute, so far as it made these offences amount to treason, was suspended by 14 Hen. VI, c. 8, and repealed by 20 Hen. VI, c. 11, but revived by 29 Hen. VI, c. 2, which gave the same powers to the lord chancellor, associated with either of the chief justices, as belonged to the conservators of truce and their assessors; and enacted that, notwithstanding the party be convicted of treason, the injured stranger should have restitution out of his effects, prior to any claim of the crown. And it is farther enacted by the statute 31 Hen. VI, c. 4, that if any of the king's subjects attempt or offend upon the sea, or in any port within the king's obeysance, against any stranger in amity, league, or truce, or under safe-conduct; and especially by attaching *his person, or spoiling him or robbing him of his goods the lord [*70 ] chancellor, with any of the justices of either the king's bench or common pleas, may cause full restitution and amends to be made to the party injured.

(e) See book I, page 200.
VOL. II.-43

(f) 9 Hen. III, c. 30. See book I, page 259, &c.


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