IX. PROFANATION of the lord's day, or fabbath-breaking, is a ninth offence against God and religion, punished by the municipal laws of England. For, befides the notorious indecency and scandal, of permitting any fecular business to be publicly tranfacted on that day, in a country profeffing christianity, and the corruption of morals which usually follows it's profanation, the keeping one day in feven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable fervice to a state, confidered merely as a civil institution. It humanizes by the help of conversation and society the manners of the lower claffes; which would otherwife degenerate into a fordid ferocity and favage selfishness of spirit: it enables the industrious workman to pursue his occupation in the enfuing week with health and chearfulness: 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 forbad all merchandizing on the lord's day, under very fevere 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 funday (except the four fundays in harvest) on pain of forfeiting the goods exposed to fale. And, fince, by the statute 1 Car. I. c.1. no perfons shall affemble, out of their own parishes, for any sport whatsoever upon this day; nor, in their parishes, fhall use any bull or bear baiting, interludes, plays, or other unlawful exercises, or pastimes; on pain that every offender fhall pay 3 s. 4 d. to the pay 3 s. 4 d. 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 fervice is over. But by statute

29

Car. II. c. 7. no person is allowed to work on the lord's day, any boat or barge, or expofe any goods to fale; except meat in public houses, milk at certain hours, and works of ne

or ufe

ceflity or charity, on forfeiture of 5 s. Nor fhall any drover, carrier, or the like, travel upon that day, under pain of twenty fhillings.

X. DRUNKENNESS is alfo punished by ftatute 4 Jac. I. c. 5. with the forfeiture of 5s; or the fitting fix hours in the stocks: by which time the statute prefumes the offender will have regained his fenfes, and not be liable to do mischief to his neighbours. And there are many wholsome ftatutes, by way of prevention, chiefly passed in the fame reign of king James I, which regulate the licencing of ale-houses, and punish perfons found tippling therein; or the masters of such houses permitting them.

XI. THE laft offence which I fhall 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'; or by some groffly fcandalous and public indecency, for which the punishment is by fine and imprisonment. In the year 1650, when the ruling powers found it for their intereft to put on the semblance of a very extraordinary ftrictness and purity of morals, not only inceft and wilful adultery were made capital crimes; but also the repeated act of keeping a brothel, or committing fornication, were (upon a second conviction) made felony without benefit of clergy'. But at the restoration, when men from an abhorrence of the hypocrify of the late times fell into a contrary extreme, of licentioufnefs, it was not thought proper to renew a law of such unfashionable rigour. And these offences have been ever fince left to the feeble coercion of the fpiritual 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 celibacy of it's firft compilers. The temporal

P Poph. 208. 11 Siderf. 168.

r Scobell. 121.

courts

courts therefore take no cognizance of the crime of adultery, otherwise than as a private injury.

BUT, before we quit this fubject, we must take notice of the temporal punishment for having baftard children, confidered 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. By the ftatute 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 expofition was, that a corporal punishment was intended". By ftatute 7 Jac. I. c. 4. a specific punishment (viz. commitment to the house of correction) is inflicted on the woman only. But in both cafes, it seems that the penalty can only be inflicted, if the baftard becomes chargeable to the parish: for otherwife the very maintenance of the child is confidered as a degree of punishment. By the laft mentioned ftatute the justices may commit the mother to the house of correction, there to be punished and set on work for one year; and, in cafe of a fecond offence, till fhe find fureties never to offend again.

Sce Vol. III. pag. 139! Sce Vol. I.. pag. 458.

"Dalt. juft. ch. 11.

VOL. IV.

I

CHAPTER THE FIFTH.

OF OFFENCES AGAINST THE LAW OF

NATIONS.

A

CCORDING to the method marked out in the preceding chapter, we are next to confider the offences more immediately repugnant to that univerfal law of fociety, which regulates the mutual intercourse between one state and another; those, I mean, which are particularly animadverted on, as such, by the English law.

THE law of nations is a fystem of rules, deducible by natural reason, and established by univerfal confent among the civilized inhabitants of the world; 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 muft frequently occur between two or more independent states, and the individuals belonging to each. 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 poffible, without prejudice to their own real interefts. And, as none of these states will allow a fuperiority in the other, therefore neither can dictate or prescribe the rules of this law to the reft; but fuch rules must necessarily

result from those principles of natural justice, in which all the learned of every nation agree: or they depend upon mutual compacts or treaties between the respective communities; in the construction of which there is alfo no judge to refort to, but the law of nature and reason, being the only one in which all the contracting parties are equally converfant, 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 fince in England no royal power can introduce a new law, or fufpend the execution of the old,. therefore the law of nations (wherever any question arises which is properly the object of it's jurisdiction) is here adopted in it's 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 it's decifions, are not to be confidered as introductive of any new rule, but merely as declaratory of the old fundamental conftitutions 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 fimilar nature; the lawmerchant, which is a branch of the law of nations, is regularly and conftantly adhered to. So too in all disputes relating to prizes, to shipwrecks, to hoftages, and ransom bills, there is no other rule of decifion but this great universal law, collected from history and usage, and fuch writers of all nations and languages as are generally approved and allowed of..

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 enquiries will fall within a narrow