41

CHAPTER IV.

OF OFFENCES AGAINST GOD AND RELIGION.

minal per se, are

as crimes by

law, as private

drunkenness or lying.

:

Some acts, crl- IN the present chapter we are to enter upon the detail of the not punishable several species of crimes and misdemesnors, with the punishments annexed to each by the laws of England. It was observed 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 (b) 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 censures. 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 conscientiæ as thoroughly criminal (a) See p. 5. (c) Beccar, ch. 8.

(b) See vol. I., p. 123, 124. ·

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,

nishable as

are not criminal

nothing criminal, but are made unlawful by the positive con- per sei; as poaching.

Such as

stitutions of the state, for public convenience.
poaching, exportation of wool, and the like. These are na-
turally 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 commu-
nity, 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 trea-
tise of municipal law we must consider them all as deriving
their particular guilt, here punishable, from the law of man.

demeanors

law, are such as

1, God and re

law of nations.

his government. 4, The commonwealth. 5, Indi

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 3, The king and God and his holy religion; secondly, such as violate and transgress the law of nations; thirdly, such as more espe- viduals. 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.

law of society

First then, of such crimes and misdemesnors as more im- Offences against God and religion 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.

offence against

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 religion, or no religion at all. This offence can only take place fion, history,

gion. Its defini

mischief, and punishment.

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 (f), 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 (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 apostacy was for a long time the object only of the ecclesias

(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 jure-jurando; quantæ salutis sint fæderum religiones; quam multos divini supplicii metus a scelere revocarit; quamque sancta sit societas civium inter ipsos, Diis immortalibus interpositis tum judicibus tum testibus? Cic de

LL. ii. 7. Who will deny the utility of these opinions, when he considers how many things are established by an oath; what benefit arises from the religious obligations of treaties; how many are deterred from crime by the fear of divine punishment; and how sanctified the intercourse of men will become, when the gods are interposed as the judges and as the witnesses of their 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 reli *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 books, is the name of unbelievers.

(i) 1 Hal. P. C. 384. An opinion

upon divine subjects framed by human
reason, openly taught and obstinately
defended.

Heresy an of

gion. Its defi

mischief, and

(1) There are several other statutes relating to this offence, and to that of blasphemy; but as they do not alter the common law, which seems also to

afford the best remedy, it is not neces-
sary to set them out. See further as
to Blasphemy, post, 59.