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virtue of any statute or statutes made lony shall have been committed within or to be made, the offence of such per- the body of any county, and the act by son may be inquired of, tried, deter- reason whereof any person shall have mined, and punished by any court become accessary shall have been comwhich shall have jurisdiction to try the mitted within the body of any other principal felon, in the same manner as county, the offence of such accessary if the act by reason whereof such per may be inquired of, tried, determined, son shall have become an accessary
had and punished in either of such counbeen committed at the same place as ties: Provided always, That no person the principal felony, although such act who shall be once duly tried for any may have been committed either on the offence of being an accessary, shall be high seas, or at any place on land, whe- liable to be again indicted or tried for ther within his Majesty's dominions or the same offence. And see post, 132. without; and in case the principal fe
OF OFFENCES AGAINST GOD AND RELIGION.
drunkenness or lying.
Some acts, crd. In the present chapter we are to enter upon the detail of the not punishable several species of crimes and misdemesnors, with the punishlaw, as private ments annexed to each by the laws of England. It was ob
served in the beginning of this book (a), that crimes and misdemesnors are a breach and violation of the public rights and duties, owing to the whole community, considered as a community, in its social aggregate capacity. And in the very entrance of these Commentaries (6) it was shewn, that human laws can have no concern with any but social and relative duties ; being intended only to regulate the conduct of man, considered under various relations, as a member of civil society. All crimes ought therefore to be estimated merely according to the mischiefs which they produce in civil society (c): and, of consequence, private vices, or breach of mere absolute duties, which man is bound to perform considered only as an individual, are not, cannot be, the object of any municipal law; any further than as, by their evil example, or other pernicious effects, they may prejudice the community, and thereby become a species of public crimes. Thus the vice of drunkenness, if committed privately and alone, is beyond the knowledge and of course beyond the reach of human tribunals: but if committed publicly, in the face of the world, its evil example makes it liable to temporal cen
sures. The vice of lying, which consists, abstractedly taken, [*42 ] in a criminal violation of truth, and therefore in any *shape
is derogatory from sound 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 slander and malicious prosecution, for which a private recompence is given. And yet drunkenness and malevolent lying are in foro conscientia as thoroughly criminal
(a) See p. 5.
(1) See vol. I., p. 123, 124. ·
(c) Beccar, ch. 8.
are not 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 justice; and public vices are besides liable to the temporal punishments of human tribunals.
On the other hand, there are some misdemesnors, which some acts puare punished by the municipal law, that have in themselves crimes by law, nothing criminal, but are made unlawful by the positive con- per sei; as stitutions of the state, for public convenience.
poaching poaching, exportation of wool, and the like. These are naturally no offences at all; but their whole criminality consists in their disobedience to the supreme power, which has an undoubted right, for the well-being and peace of the community, to make some things unlawful, which are 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 consider them all as deriving their particular guilt, here punishable, from the law of man.
Having premised this caution, I shall next proceed to dis- Crimes and mistribute the several offences, which are either directly or by punishable by consequence injurious to civil society, and therefore punish- offend against, able by the laws of England, under the following general ligion. 2, The heads: first, those which are more immediately injurious to 2, The king and God and his holy religion ; secondly, such as violate and transgress the law of nations; thirdly, such as more espe- widuals. cially affect the sovereign executive power of the state, or the king and his government; fourthly, such as more directly * infringe the rights of the public or commonwealth; and, [*43 ] lastly, 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 such crimes and misdemesnors as more im- Offences against mediately offend Almighty God, by openly transgressing the transgress the precepts of religion either natural or revealed; and medi- also. ately, by their bad example and consequence, the law of society also; which constitutes that guilt in the action, which human tribunals are to censure.
I. Of this species the first is that of apostacy, or a total Apostacy is an renunciation of christianity, by embracing either a false reli- God and relia gion, or no religion at all. This offence can only take place tion, history,
his government. 4, The common. wealth. 5, Indi.
in such as have once professed the true religion. The perversion of a christian to judaism, paganism, or other false religion, was punished by the Emperors Constantius and Julian with confiscation of goods (d); to which the Emperors Theodosius and Valentinian added capital punishment, in case the apostate endeavoured to pervert others to the same iniquity (e). A punishment too severe for any temporal laws to inflict upon any spiritual offence : and yet the zeal of our ancestors imported it into this country; for we find by Bracton (s), that in his time apostates were to be burnt to death. Doubtless the preservation of christianity, as a national religion, is, abstracted from its own intrinsic truth, of the utmost consequence to the civil state : which a single instance will sufficiently demonstrate. The belief of a future state of rewards and punishments, the entertaining just ideas of the moral attributes of the supreme being, and a firm persuasion that he superintends and will finally compensate every action in human life, all which are clearly revealed in the doctrines, and forcibly inculcated by the precepts, of our Saviour Christ, these are the grand foundation 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 [*44 ) attesting: all moral evidence *therefore, all confidence in
human veracity must be weakened by apostacy, and overthrown by total infidelity (9). Wherefore all affronts to christianity, or endeavours to depreciate its efficacy, in those who have once professed it, are highly deserving of censure. But yet the loss 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 jurisdiction over it. This punishment therefore has long ago become obsolete; and the offence of apostacy was for a long time the object only of the ecclesias
(d) Cod. 1. 7,1.
LL. ii. 7. Who will deny the uti(e) Ibid. 6.
lity of these opinions, when he consi(1) L. 3, c. 9.
ders how many things are established (8) Utiles esse opiniones has, quis by an oath ; what benefit arises from negat, cum intelligat, quam multa fir- the religious obligations of treaties ; mentur jure-jurando ; quantæ salutis how many are deterred from crime by sint fæderum religiones ; quam multos the fear of divine punishment; and how divini supplicii metus a scelere revoca- sanctified the intercourse of men will berit; quamque sancta sit societas civium come, when the gods are interposed as inter ipsos, Diis immortalibus interpo- the judges and as the witnesses of their sitis tum judicibus tum testibus ? Cic de conduct.
tical courts, which corrected the offender pro salute animæ. But about the close of the last century, the civil liberties to which we were then restored being used as a cloak of maliciousness, and the most horrid doctrines subversive of all religion being publicly avowed both in discourse and writings, it was thought necessary again for the civil power to interpose, by not admitting those miscreants (h) to the privileges of society, who maintained such principles as destroyed all moral obligation. To this end it was enacted by statute 9 and 10 W. III. c. 32, that if any person educated in, or having made profession of, the christian religion, shall, by writing, printing, teaching, or advised speaking, deny the christian 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 second, be rendered incapable of bringing any action, 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 (1).
II. A second offence is that of heresy, which consists not fence against in a total denial of christianity, but of some of its essential God and select *doctrines, publicly and obstinately avowed; being defined nition, history, by Sir Matthew Hale,“ sententia rerum divinarum humano punishment. sensu excogitata, palam docta et pertinaciter defensa” (i).
[*45 ] And here it must also be acknowledged, that particular modes of belief or unbelief, not tending to overturn christianity itself, or to sap the foundations of morality, are by no means the object of coercion by the civil magistrate. What doctrines shall therefore be adjudged heresy, was left by our old constitution to the determination of the ecclesiastical judge; who had herein a most arbitrary latitude allowed him.
(h) Mescroyants, in our ancient law upon divine subjects framed_by human books, is the name of unbelievers. reason, openly taught and obstinately
(i) I Hal. P. C. 384. An opinion defended.
(1) There are several other statutes afford the best remedy, it is not necesrelating to this offence, and to that of sary to set them out. See further as blasphemy; but as they do not alter to Blasphemy, post, 59. the common law, which seems also to