and their principles did not also extend to a subversion of the civil government. If once they could be brought to renounce the supremacy of the pope, they might quietly enjoy their seven sacraments, their purgatory and auricular confession, their worship of relics and images, nay, even their transubstantiation. But while they acknowledge a foreign power superior to the sovereignty of the kingdom, they cannot complain if the laws of that kingdom will not treat them upon the footing of good subjects. (20)

Let us therefore now take a view of the laws in force against the papists; who may be divided into three classes, persons professing popery, popish recusants convict, and popish priests. 1. Persons professing the popish religion, besides the former penalties for not frequenting their parish church, are disabled from taking their lands, either by descent or purchase, after eighteen years of age, until they renounce their errors; they must at the age of twenty-one register their estates before acquired, and all future conveyances and wills relating to them; they are incapable of presenting to any advowson, or granting to any other person any avoidance of the same; they may not keep or teach any school, under pain of perpetual imprisonment; and if they willingly say or hear mass, they forfeit the one two hundred, the other one hundred marks, and each shall suffer a year's imprisonment. Thus much for persons who, from the misfortune of family prejudices or otherwise, have conceived an unhappy attachment to the Romish church from their infancy and publicly profess its errors. But if any evil industry is used to rivet these errors upon them, if any person sends another abroad to be educated in the popish religion or to reside in any religious house abroad for that purpose, or contributes to their maintenance when there; *both the [*56 sender, the sent, and the contributor are disabled to sue in law or equity, to be executor or administrator to any person, to take any legacy or deed of gift, and to bear any office in the realm, and shall forfeit all their goods and chattels, and likewise all their real estate for life. And where these errors are also aggravated by apostacy or perversion, where a person is reconciled to the see of Rome, or procures others to be reconciled, the offence amounts to high treason. 2. Popish recusants, convicted in a court of law of not attending the service of the church of England, are subject to the following disabilities, penalties, and forfeitures, over and above those before mentioned. They are considered as persons excommunicated; they can hold no office or employment; they must not keep arms in their houses, but the same may be seized by the justices of the peace; they may not come within ten miles of London, on pain of 100l.; they can bring no action at law, or suit in equity: they are not permitted to travel above five miles from home, unless by license, upon pain of forfeiting all their goods; and they may not come to court under pain of 100l. No marriage or burial of such recusant, or baptism of his child, shall be had otherwise than by the ministers of the church of England, under other severe penalties. A married woman, when recusant, shall forfeit two-thirds of her dower or jointure; may not be executrix or administratrix to her husband, nor have any part of his goods; and during the coverture may be kept in prison, unless her husband redeems her at the rate of 10l. a month, or the third part of all his lands. And, lastly, as a feme-covert recusant may be imprisoned, so all others must, within three months after conviction, either submit and renounce their errors, or, if required so to do by four justices, must abjure and renounce the realm: and if they do not depart, or if they return without the king's license, they shall be guilty of felony, and suffer death as felons without the benefit of clergy. There is also an inferior species of recusancy, (refusing to make the declara

(20) Hale v. Everett, 53 N. H. 9, 195 (1868).

tion against popery enjoined by statute 30 Car. II. st. 2, when tendered by the proper magistrate,) which, if the party resides within ten miles of Lon

don, makes him an absolute recusant convict; or, if at a greater distance, *57] suspends him from having any seat in *parliament, keeping arms in his house, or any horse above the value of five pounds. This is the state, by the laws now in being, (c) of a lay papist. But, 3. The remaining species or degree, viz., popish priests, are in a still more dangerous condition. For by statute II and 12 W. III. c. 4, popish priests or bishops celebrating mass or exercising any part of their functions in England, except in the houses of ambassadors, are liable to perpetual imprisonment. And, by the statute 27 Eliz. c. 2, any popish priest, born in the dominions of the crown of England, who shall come over hither from beyond sea, (unless driven by stress of weather, and tarrying only a reasonable time,)(d) or shall be in England three days without conforming and taking the oaths, is guilty of high treason: and all persons harboring him are guilty of felony without the benefit of clergy. This is a short summary of the laws against the papists, under their three several classes of persons professing the popish religion, popish recusants convict, and popish priests. Of which the president Montesquieu observes, (e) that they are so rigorous, though not professedly of the sanguinary kind, that they do all the hurt that can possibly be done in cold blood. But in answer to this it may be observed (what foreigners who only judge from our statute-book are not fully apprized of) that these laws are seldom exerted to their utmost rigor: and, indeed, if they were, it would be very difficult to excuse them. For they are rather to be accounted for from their history, and the urgency of the times which produced them, than to be approved (upon a cool review) as a standing system of law. The restless machinations of the Jesuits during the reign of Elizabeth, the turbulence and uneasiness of the papists under the new religious establishment, and the boldness of their hopes and wishes for the succession of the queen of Scots, obliged the parliament to counteract so dangerous a spirit by laws of a great, and then perhaps

necessary, severity. The powder-treason in the succeeding reign *58] struck a panic into *James I., which operated in different ways: it

occasioned the enacting of new laws against the papists, but deterred him from putting them in execution. The intrigues of queen Henrietta in the reign of Charles I., the prospect of a popish successor in that of Charles II., the assassination-plot in the reign of king William, and the avowed claim of a popish pretender to the crown in that and subsequent reigns, will account for the extension of these penalties at those several periods of our history. But if a time shall ever arrive, and perhaps it is not very distant, when all fears of a pretender shall have vanished, and the power and influence of the pope shall become feeble, ridiculous, and despicable not only in England but in every kingdom of Europe, it probably would not then be amiss to review and soften these rigorous edicts; at least, till the civil principles of the Roman Catholics called again upon the legislature to renew them: for it ought not to be left in the breast of every merciless bigot to drag down the vengeance of these occasional laws upon inoffensive, though mistaken, subjects; in opposition to the lenient inclination of the civil magistrate, and to the destruction of every principle of toleration and religious liberty.

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

(c) Stat. 23 Eliz. c. 1. 27 Eliz. C. 2. 29 Eliz. C. 6. 35 Eliz. c. 2. 1 Jac. II. c. 4. 3 Jac. I. c. 4 and 5. 7 Jac. I. c. 6. 3 Car. I. c. 3. 25 Car. II. c. 2. 30 Car. II. st. 2. 1 W. & M. c. 9, 15, and 26. 11 & 12 W. III.

c. 4. 12 Anne, st. 2, c. 14. 1 Geo. I. st. 2, c. 55. 3 Geo. I. c. 18. 11 Geo. II. c. 17.

(d) Raym. 377. Latch. 1.

(e) Sp. L. b. xix. c. 27.

heretics and deposing or murdering princes excommunicated by authority of the see of Rome:(21) in respect of whom only the statute of 11 and 12 W. 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.(22)

In order the better to secure the established church against perils from nonconformists of all denominations, infidels, Turks, Jews, heretics, papists, and sectaries, there are, however, two bulwarks erected; called the corporation and test acts:(23) by the former of which(ƒ) 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 [*59 time that he takes the oath of office; or, in default of either of these requisites, such 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 500l. 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 person 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 ecclesiastical, 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; (24) while the temporal courts resent the public affront to religion and morality on which all governments 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. Whither 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)(25)

(21) Hale v. Everett, 53 N. H. 9, 195 (1868).

(h) 1 Hawk. P. C. 7.
(i) 1 Ventr. 293. 2 Strange, 834.

(22) By a succession of statutes the restrictions, disabilities and penalties imposed upon Roman Catholics have been largely removed, the more important ameliorative statutes being 10 Geo. IV. c. 7; 7 and 8 Vict. c. 102; 9 and 10 Vict. c. 59; 29 and 30 Vict. c. 22; 30 and 31 Vict. c. 62; 34 and 35 Vict. c. 26, and c. 48.

(23) Hale v. Everett, 53 N. H. 9, 115 (1868). These statutes were repealed by the statute 10 Geo. 4, c. 7.

(24) [For the health of the soul.]

(25) Hale v. Everett, 53 N. H. 9 207 (1868). Commonwealth v. Kneeland, 37 Mass.

V. Somewhat allied to this, though in an inferior degree, is the *60] offence of profane and common swearing and *cursing.(26) By the last statute against which, 19 Geo. II. c. 21, which repeals all former ones, every laborer, sailor, or soldier profanely cursing or swearing shall forfeit is.; every other person, under the degree of a gentleman, 2s.; and every gentleman, or person of superior rank, 5s., 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. (27) 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. (28) 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 10l., 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, enchantment, or sorcery. (29) 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 our own laws, both before and since *61] 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

(j) Cod. l. 9. c. 18. (k) Exod. xxii. 18.

(l) 3 Inst. 44.
(m) Sp. L. b. xii. c. 4.

206, 212 (1838). For a case holding that Christianity is part of the criminal law of Pennsylvania; and maliciously to vilify the Christian religion is an indictable offence. See Updegraph v. Commonwealth, 11 S. & R. (Pa.) 394, 404 (1824). See also State v. Chandler, 2 Harr. (Del.) 553. 555 et seq. (1837). People v. Ruggles, 8 Johns. (N. Y.) 290, 297 (1811). Wharton's Crim. Law, 10 ed. (Lewis) vol. 2, % 1605.

(26) It seems that profane swearing was not indictable at common law unless the words uttered were repeated so often and so publicly as to become an annoyance to the public, and thus a public nuisance. Ex parte Delaney, 43 Cal. 478, 481 (1872). But see cases cited, supra.

(27) The conviction must be within eight days after the offence. 12. Each oath or curse being a distinct complete offence, there can be no question, I conceive, but a person may incur any number of penalties in one day,-though Dr. Burn doubts whether any number of oaths or curses in one day amounts to more than one offence. 3 Burn, 325. -CHITTY.

The swearing of any number of oaths on one occasion is only one offence, with a penalty for each oath. Reg. v. Scott, 33 L. J., M. C., 15, 4 B. & S. 368. In this case a conviction for one curse repeated twenty times, adjudging the offender to pay 25., was held to be good.

(28) This latter provision is repealed.

(29) Fulgham v. The State, 46 Ala. 143, 146 (1871).

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.

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 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 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 [*62 XIV. in France, who thought proper, by an edict, to restrain the tribunals of justice from receiving informations of witchcraft.(0) 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 persons for conjuration, witchcraft, sorcery, or enchantment. 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.(30)

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 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:(31) 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)(32) The statute 31 Eliz. c. 6 (which, so far as it among the crimes punishable in France. (p) 1 Hawk. P. Č. 7. (q) 3 Inst. 156.

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

(o) Voltaire, Siccl. Louis XIV. ch. 29. Mod. Un. Hist. xxv. 215. Yet Voughlans (de droit criminel, 353, 459) still reckons up sorcery and witchcraft

(30) By the vagrant act, (5 Geo. IV. c. 8, 83, 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.CHITTY.

(31) Bishop's New Crim. Law, 8 ed. vol. I, ? 496, p. 303.

(32) But, according to 2 Bla. Rep. 1052, I Ld. Raym. 449, Moore, Rep. 564, simony is not an offence criminally punishable at common law.—CHITTY.