punishment? For these reasons: 1. To distinguish the nature and denomination of crimes that the accused may know how to defend himself, when indicted; the commission of an actual robbery being quite a different accusation from that of harboring the robber. 2. Because, though by the ancient common law the rule is as before laid down, that both shall be punished alike, yet now by the statutes relating to the benefit of clergy a distinction is made between them: accessories after the fact being still allowed the benefit of clergy in all cases, except horse-stealing (f) and stealing of linen from bleaching-grounds: (g) which is denied to the principals and accessories before the fact, in many cases as, among others, in petit treason, murder, robbery, and willful burning. (h) And perhaps if a distinction were constantly to be made between the punishment of principals and accessories, even before the fact, the latter to be treated with a little less severity than the former, it might prevent the perpetration of many crimes, by increasing the difficulty of finding a person to execute the deed itself; as his danger would be greater than that of his accomplices, by reason [*40] of the difference of his punishment. (i) 3. Because formerly no man could be tried as accessory till after the principal was convicted, or at least he must have been tried at the same time with him: though that law is now much altered, as will be shown more fully in its proper place. 4. Because, though a man be indicted as accessory and acquitted, he may afterwards be indicted as principal: for an acquittal of receiving or counselling a felon is no acquittal of the felony itself: but it is matter of some doubt, whether, if a man be acquitted as principal, he can be afterwards indicted as accessory before the fact; since those offences are frequently very nearly allied, and therefore an acquittal of the guilt of one may be an acquittal of the other also. (k) (8) But it is clearly held, that one acquitted as a principal may be indicted as an accessory after the fact; since that is always an offence of a different species of guilt, principally tending to evade the public justice, and is subsequent in its commencement to the other. Upon these reasons, the distinction of principal and accessory will appear to be highly necessary; though the punishment is still much the same with regard to principals, and such accessories as offend before the fact is committed. (9)`

(f) Stat. 31 Eliz. c. 12. (i) Beccar. c. 37.

(g) Stat. 18 Geo. II, c. 27.

(h) 1 Hal. P. C. 615. (k) 1 Hal. P. C. 625, 626. 2 Hawk. P. C. 373. Foster, 361.

(8) [The authorities of Hawkins and Foster are both against this reasoning and the princi ple of the law is certainly with them, because the offences are specifically different, and require different evidence to prove them.]

(9) By statute 24 and 25 Vic. c. 94, an accessory before the fact to a felony may be ir dicted, tried, and punished as if he were a principal felon; and, by section 2, whoever shall counsel, procure or command any other person to commit a felony, shall be guilty of felony, and may be punished either as accessory before the fact, or for a substantive felony, and whether the principal felon is previously convicted, or is amenable to justice or not. And, by section 3, accessories after the fact to a felony may be indicted and convicted, of a substantive felony, whether the principal felon shall or shall not be previously convicted, or amenable to justice, or not.

In a number of the United States there are similar modifications of the common law relat ing to this subject. For the rule, in the absence of such statutes, see Stoops v. Commonwealth, 7 S. and R. 491; Commonwealth v. Knapp, 10 Pick. 477; State v. Duncan, 6 Ired. 98; Holmes v. Commonwealth, 25 Penn. St. 221.

As to charging accessories with a substantive felony, under statutes permitting that course, see State v. Weston, 9 Conn. 527; Noland v. State, 19 Ohio, 131; Shannon v. People, É Mich. 71.

VOL. II.-41

321.

CHAPTER IV.

OF OFFENCES AGAINST GOD AND RELIGION.

IN the present chapter we are to enter upon the detail of the several sr cies of crimes and misdemeanors, with the punishments annexed to each by the laws of England. It was observed in the beginning of this book, (a) that crimes and misdemeanors 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 (b) it was shown 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 farther 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 censures. The vice of lying, which consists (abstractedly taken) in a criminal violation of truth, and therefore in any *shape is derogatory from sound morality, is not however taken notice of [*42] 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 recompense is given. And yet drunkenness and malevolent lying are, in foro conscientiæ, 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 subjcet 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 misdeameanors which are punished by the municipal law, that have in themselves nothing criminal, but are made unlawful by the positive constitutions of the state for public convenience; such as 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 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 consider them all as deriving their particular guilt, here punishable, from the law of man.

Having premised this caution, I shall next proceed to distribute the several offences, which are either directly or by consequence injurious to civil society, and therefore punishable by the laws of England under the following genera heads: first, those which are more immediately injurious to God and his holy religion; secondly, such as violate and transgress the law of nations; thirdly, such as more especially affect the sovereign executive power of the state, or the king and his government; fourthly, such as more directly infringe the [*43] rights of the public or commonwealth; and 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.

(a) See page 5.

(b) See book I, pages 123, 124.

(c) Beccar, c. 8.

First, then, of such crimes and misdemeanors as more immediately offend Almighty God, by openly transgressing the precepts of religion, either natural or revealed; and mediately, 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 apostasy, or a total renunciation of Christianity, by embracing either a false religion, or no religion at all. This offence can only take place 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 (ƒ) 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 attesting: all moral evidence, therefore, all confidence in human [*44 ] veracity, must be weakened by apostasy, and overthrown by total infidelity. (g) 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 apostasy was for a long time the object only of the ecclesiastical 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 Wm. 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.

II. A second offence is that of heresy, which consists not in a total denial of Christianity, but of some of its essential *doctrines, publicly and obstinately [*45] avowed; being defined by Sir Matthew Hale, " sententia rerum divinarum humano sensu excogitata, palam docta et pertinaciter defensa." (i) And here it must also be acknowledged that particular modes of belief or unbelief, not tend

(d) Cod. 1, 7, 1.

(e) Ibid. 6.

(f) l. 3, c. 9.

(g) Utiles esse opiniones has. quis negat, cum intelligat, quam multa firmentur jurejurando; quantæ salu. tis sint foederum religiones; quam multos divini supplicii metus a scelere revocavit: quamque sancta sit societas civium inter ipsos, Diis immortalibus interpositis tum judicibus, tum testibus? Cic. de L. L. ii. 7. (h) Mescroyantz in our ancient law books is the name of unbelievers. (i) 1 Hal. P. C. 354.

ing 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 For the general definition of an heretic given by Lyndewode, (k) extends to the smallest deviation from the doctrines of holy church: "hæreticus est qui dubitat de fide catholica, et qui negligit servare ea, quæ Romana ecclesia statuit, seu servare decreverat." Or, as the statute 2 Hen. IV, c. 15, expresses it in English,"teachers of erroneous opinions, contrary to the faith and blessed determinations 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 enchanced it in those days of blind zeal and pious cruelty. It is true that the sanctimonious hypocrisy of the canonists went at first no farther than enjoining penance, excommunication, and ecclesiastical deprivation for heresy; though afterwards they proceeded boldly to imprisonment by the ordinary, and confiscation of goods in pios usus. But in the mean time they had prevailed upon the weakness of bigoted princes to make the civil power subservient to their purposes, by making heresy not only a temporal, but even a capital offence: the Romish ecclesiastics determining, without appeal, whatever they pleased to be heresy, and shifting off to the secular arm the odium and drudgery of executions; with which they themselves were too tender and delicate to intermeddle. Nay, they pretended to intercede and pray, on behalf of the convicted heretic, ut citra mortis periculum sententia circa eum moderatur: (1) well *knowing at the same time that they were delivering [*46] the unhappy victim to certain death. Hence the capital punishments inflicted on the ancient Donatists and Manichæans by the emperors Theodosius and Justinian: (m) hence also the constitution of the emperor Frederic mentioned by Lyndewode, (n) adjudging all persons without distinction to be burnt. with fire, who were convicted of heresy by the ecclesiastical judge. The same emperor, in another constitution, (6) ordained that if any temporal lord, when admonished by the church, should neglect to clear his territories of heretics within a year, it should be lawful for good catholics to seize and occupy the lands, and utterly to exterminate the heretical possessors. And upon this foundation was built that arbitrary power, so long claimed and so fatally exerted by the pope, of disposing even of the kingdoms of refractory princes to more dutiful sons of the church. The immediate event of this constitution was something singular, and may serve to illustrate at once the gratitude of the holy see, and the just punishment of the royal bigot: for upon the authority of this very constitution, the pope afterwards expelled this very emperor Frederic from his kingdom of Sicily, and gave it to Charles of Anjou. (p)

Christianity being thus deformed by the dæmon of persecution upon the continent, we cannot expect that our own island should be entirely free from the same scourge. And therefore we find among our ancient precedents (9) a writ de hæretico cumburendo, which is thought by some to be as ancient as the common law itself. However, it appears from thence, that the conviction of heresy by the common law was not in any petty ecclesiastical court, but before the archbishop himself, in a provincial synod; and that the delinquent was delivered over to the king, to do as he should please with him: so that the crown had a control over the spiritual power, and might pardon the convict by issuing no process against him; the writ de hæretico comburendo being not a writ [*47] *of course, but issuing only by the special direction of the king in council. (r) But in the reign of Henry the Fourth, when the eyes of the Christian world began to open, and the seeds of the protestant religion (though under the opprobrious name of lollardy) (s) took root in the kingdom; the clergy

(1) Decretal. l. 5, t. 40, c. 27. (p) Baldus in Cod. 1, 5, 4.

(m) Cod. l. 1, tit. 5, (n) c. de hæreticis. (q) F. N. B. 269. (r) 1 Hal. P. C. 395.

(k) Cap. de hæreticis, (0) Cod. 1, 5, 4. (8) So called not from lolium or tares, (an etymology which was afterwards devised in order to justify the burning of them, Matth. xiii. 30) but from one Walter Lolhard, a German reformer, A. L. 1315. Mod Un. Hist. xxvi, 13. Spelm. Gloss. 371.

taking advantage from the king's dubious title to demand an increase of their own power, obtained an act of parliament, (f) which sharpened the edge of persecution to its utmost keenness. For, by that statute, the diocesan alone, without the intervention of a synod, might convict of heretical tenets: and unless the convict abjured his opinions, or if after abjuration he relapsed, the sheriff was bound, ex officio, if required by the bishop, to commit the unhappy victim to the flames, without waiting for the consent of the crown. By the statute 2 Hen. V, c. 7, lollardy was also made a temporal offence, and indictable in the king's courts; which did not thereby gain an exclusive, but only a concurrent, jurisdiction with the bishop's consistory.

Afterwards, when the final reformation of religion began to advance, the power of the ecclesiastics was somewhat moderated: for though what heresy is, was not then precisely defined, yet we were told in some points what it is not: the statute 25 Hen. VIII, c. 14, declaring that offences against the see of Rome are not heresy; and the ordinary being thereby restrained from proceeding in any case upon mere suspicion; that is, unless the party be accused by two credible witnesses, or an indictment of heresy be first previously found in the king's courts of common law. And yet the spirit of persecution was not then abated, but only diverted into a lay channel. For in six years afterwards, by statute 31 Hen. VIII, c. 14, the bloody law of the six articles was made, which established the six most contested points of *popery, transubstantiation, communion in one kind, the celibacy of the clergy, monastic vows, the sacrifice of the [*48] mass, and auricular confession; which points were "determined and resolved by the most godly study, pain, and travail of his majesty: for which his most humble and obedient subjects, the lords spiritual and temporal, and the commons in parliament assembled, did not only render and give unto his highness their most high and hearty thanks," but did also enact and declare all oppugners of the first to be heretics, and to be burnt with fire; and of the five last to be felons, and to suffer death. The same statute established a new and mixed jurisdiction of clergy and laity for the trial and conviction of heretics; the reigning prince being then equally intent on destroying the supremacy of the bishops of Rome, and establishing all other their corruptions of the Christian religion.

I shall not perplex this detail with the various repeals and revivals of these sanguinary laws in the two succeeding reigns; but shall proceed directly to the reign of Queen Elizabeth; when the reformation was finally established with temper and decency, unsullied with party rancour, or personal caprice and resentment. By statute 1 Eliz. c. 1, all former statutes relating to heresy are repealed, which leaves the jurisdiction of heresy as it stood at common law; viz., as to the infliction of common censures, in the ecclesiastical courts; and in case of burning the heretic, in the provincial senate only. (u) Sir Matthew Hale is indeed of a different opinion, and holds that such power resided in the diocesan also, though he agrees that, in either case, the writ de hæretico comburendo was not demandable of common right, but grantable or otherwise merely at the king's discretion. (v) But the principal point now gained was, that by this statute a boundary is for the first time set to what shall be accounted heresy; nothing for the future being to be so determined, but only such tenets, which have been heretofore so declared: 1. By the words of the canonical scriptures; 2. By the first four general councils, or such *others as have only used the words of the [*49] holy scriptures; or, 3. Which shall hereafter be so declared by the parliament, with the assent of the clergy in convocation. Thus was heresy reduced to a greater certainty than before; though it might not have been the worst to have defined it in terms still more precise and particular: as a man continued still liable to be burnt for what perhaps he did not understand to be heresy till the ecclesiastical judge so interpreted the words of the canonical scriptures.

For the writ de hæretico comburendo remained still in force; and we have instances of its being put in execution upon two anabaptists in the seventeenth of Elizabeth, and two arians in the ninth of James the First. But it was totally (t) 2 llen. IV, c. 15 (u) 5 Rep. 23. 12 Rep. 56. 92. (v) 1 Hal. P. C. 405.