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CHAPTER THE FOURTH.
OF OFFENCES AGAINST GOD AND RELIGION.
a See pag. 5.
See Vol. I. pag. 123, 124.
N the present chapter we are to enter upon the detail of the several species of crimes and misdemefnors, with the punishment annexed to each by the laws of England. It was observed, in the beginning of this book, that crimes and misdemefnors are a breach and violation of the public rights and duties, owing to the whole community, confidered as a community, in it's focial aggregate capacity. And in the very entrance of these commentaries' it was fhewn, that human laws can have no concern with any but focial and relative duties; being intended only to regulate the conduct of man, confidered under various relations, as a member of civil fociety. All crimes ought therefore to be estimated merely according to the mifchiefs which they produce in civil fociety: and, of confequence, private vices, or the breach of mere abfolute duties, which man is bound to perform confidered only as an individual, are not, cannot be, the object of any municipal law; any farther than as by their evil example, or other pernicious effects, they may prejudice the community, and thereby become a fpecies of public crimes. Thus the vice of drunkenness, if committed privately and alone, is beyond the knowlege and of course beyond the reach of human tribunals: but if committed publicly, in the face of the world, it's evil example makes it liable
• Beccar. ch. 8.
to temporal cenfures. The vice of lying, which confists (abftractedly taken) in a criminal violation of truth, and therefore in any shape is derogatory from found 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 flander and malicious profecution, for which a private recompence is given. And yet drunkenness and lying are in foro confcientiae 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 juftice; and public vices are befides liable to the temporal punishments of human tribunals.
On the other hand, there are some mifdemefnors, which are punished by the municipal law, that are in themselves nothing criminal, but are made fo by the pofitive constitutions of the ftate for public convenience. Such as poaching, exportation of wool, and the like. These are naturally no offences at all; but their whole criminality confifts in their disobedience to the supreme power, which has an undoubted right for the wellbeing and peace of the community to make fome things unlawful, which were in themselves indifferent. Upon the whole therefore, though part of the offences to be enumerated in the following sheets are offences against the revealed law of God, others against the law of nature, and some are offences against neither; yet in a treatise of municipal law we must confider them all as deriving their particular guilt, here punishable, from the law of man.
HAVING premised this caution, I fhall next proceed to distribute the several offences, which are either directly or by confequence injurious to civil fociety, 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; fecondly, fuch as violate and tranfgrefs the law of nations; thirdly, fuch as more especially affect the fove
reign executive power of the state, or the king and his government; fourthly, such as more directly infringe the rights of the public or common wealth; and, laftly, 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 fuch crimes and mifdemefnors, as more immediately offend Almighty God, by openly tranfgreffing the precepts of religion either natural or revealed; and mediately, by their bad example and confequence, the law of fociety alfo ; which constitutes that guilt in the action, which human tribunals are to cenfure.
I. Of this fpecies the first is that of apoftacy, or a total renunciation of chriftianity, by embracing either a false religion, or no religion at all. This offence can only take place in fuch as have once profeffed the true religion. The perverfion of a christian to judaism, paganism, or other falfe religion, was punished by the emperors Conftantius and Julian with confifcation of goods; to which the emperors Theodofius and Valennian added capital punishment, in cafe the apoftate endeavoured to pervert others to the fame iniquity. A punishment too severe for any temporal laws to inflict: and yet the zeal of our ancestors imported it into this country; for we find by Bracton, that in his time apoftates were to be burnt to death. Doubtless the prefervation of christianity, as a national religion, is, abftracted from it's own intrinfic truth, of the utmost consequence to the civil state: which a fingle instance will sufficiently demonftrate. The belief of a future ftate of rewards and punishments, the entertaining just ideas of the moral attributes of the fupreme being, and a firm persuasion that he superintends and will finally compenfate every action in human life (all which are clearly revealed in the doctrines, and forcibly inculcated by the precepts, of our faviour Chrift) these are the grand founda
Cod. 1.7.1. • Ibid. 6.
1. 3. c. 9.
tion of all judicial oaths; which call God to witness the truth of those facts, which perhaps may be only known to him and the party attesting: all moral evidence therefore, all confidence in human veracity, must be weakened by irreligion, and overthrown by infidelity. Wherefore all affronts to christianity, or endeavours to depreciate it's efficacy, are highly deferving of human punishment. But yet the lofs of life is a heavier penalty than the offence, taken in a civil light, deserves: and, taken in a spiritual light, our laws have no jurifdiction over it. This punishment therefore has long ago become obfolete; and the offence of apoftacy was for a long time the object only of the ecclesiastical courts, which corrected the offender pro falute animae. But about the close of the last century, the civil liberties to which we were then restored being used as a cloke of maliciousness, and the most horrid doctrines fubverfive of all religion being publicly avowed both in difcourfe and writings, it was found neceffary again for the civil power to interpofe, by not admitting those miscreants to the privileges of fociety, who maintained fuch principles as destroyed all moral obliga tion. To this end it was enacted by ftatute 9 & 10 W. III. c. 32. that if any person educated in, or having made profeffion of, the christian religion, fhall by writing, printing, teaching, or advised speaking, deny the chriftian religion to be true, or the holy scriptures to be of divine authority, he shall upon the first offence be rendered incapable to hold any office or place of trust; and, for the fecond, be rendered incapable of bringing any ac tion, 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.
II. A SECOND offence is that of herefy; which confists not in a total denial of christianity, but of fome of it's effential Mefcroyantz in our antient law-books is the name of unbelievers.
doctrines, publicly and obftinately avowed; being defined, " fententia rerum divinarum humano fenfu excogitata, palam docta, "et pertinaciter defenfa" And here it must also be acknowleged that particular modes of belief or unbelief, not tending to overturn christianity itself, or to fap the foundations of morality, are by no means the object of coercion by the civil magiftrate. What doctrines fhall therefore be adjudged herefy, was left by our old conftitution to the determination of the ecclefiaftical judge; who had herein a most arbitrary latitude allowed him. For the general definition of an heretic given by Lyndewode', extends to the smallest deviations from the doctrines of holy church: "baereticus eft qui dubitat de fide catholica, et qui negligit fervare ea, 66 quae Romana ecclefia ftatuit, feu fervare decreverat." Or, as the statute 2 Hen. IV. c. 15. expreffes it in English, "teachers of "erroneous opinions, contrary to the faith and blessed determi"nations 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 fanctimonious hypocrify of the canonifts went at first no farther than enjoining penance, excommunication, and ecclefiaftical deprivation, for heresy; though afterwards they proceeded boldly to imprisonment by the ordinary, and confiscation of goods in pios ufus. But in the mean time they had prevailed upon the weakness of bigotted princes to make the civil power fubfervient to their purposes, by making heresy not only a temporal, but even a capital offence: the Romish ecclefiaftics determining, without appeal, whatever they pleased to be herefy, and shifting off to the fecular arm the odium and drudgery of executions; with which they themfelves were too tender and delicate to intermeddle. Nay they pretended to intercede and pray, on behalf of the convicted heretic, ut citra mortis periculum fententia circa eum moderetur: well
* Decretal. 1. 5. t. 40. c. 27.
1 Hal. P. C. 384.
cap. de baereticis.