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Lord Coke hath written a learned comment upon this statute, in which he declares, that it would be a very great defect in government, to suffer so great an abomination, as conjuration, witchcraft, and sorcery, to pass with impunity, 3 Inst. 44.
But the tendency of the statute of the 1st of James the 1st, may best appear from the cheats, perjuries, and various other mischiefs, which it produced, to the ruin of many innocent persons; all which are but too well known to require any particular mention. Vid Mather's Hist, of New England; and Salmon's Universal Traveller. vol. II. p. 695. This act nevertheless continued to be a scandal and reproach to the good sense of the nation, till the 9th year of George the 2d, when it was enacted by
parliament "That the statute, made in the first year of king James
"the first, intitled, An act against conjuration, witehcraft, and dealing "with evil and wicked spirits, shall be repealed and utterly [ *653 ] "*void, except so much as repeals the statute of the 5th of "Elizabeth, intitled an act against conjuration, &c. &c.— "that an act passed in Scotland, in the ninth parliament of Queen Ma
"ry, intitled Anentis uitchcrafts, shall be repealed and that from the
"24th of June no prosecution, suit or proceeding, shall be carried on "against any person for witchcraft, sorcery, inchantment, or conjura,: tion, or for charging another with any such offence, in any court
"whatsoever in Great Britain but that any person, pretending to
"exercise witchcraft, tell fortunes, or discover stolen goods, shall suffer "imprisonment for one whole year, stand in the pillory once every quar"ter for an hour; and if the court shall think proper, be obliged to give "sureties to behave well for the future." 9 Geo. 2. Harris.
Thus far Harris: to whose note add Cod. 9. 18. Those who desire further information on the practical comments that have taken place, on that notable passage in the old Testament, "Thou shalt not suffer a witch to live," may consult Sir James Melville's memoirs as to the examination of the witches before James 6th of Scotland: the trial of Amy Duny and Rose Cullender, widows, both of Leystoff, in Suffolk, before Sir Matthew Hale, on the 10th of March, 16th Ch. 2nd. at Bury St. Edmonds, where says the account, "in conclusion, the judge and all the "court were fully satisfied with the verdict, and thereupon gave judg11 ment against the witches that they should be hanged. They were "much urged to confess, but would not: on the 17th of March foliow"ing, they were executed;" much to the credit of Sir Matthew Hale! See also the statements which Ch. Justice Marshall in fiis life of Washington Vol. 1. Appendix page 9, gives of the proceedings of the bigots of New England in 1692, from Hutchinson; and Pr. Feriar's essay on popular illusions in the Manchester transactions.
$ 6. De parracidiis, p. 388. Vide Dig. 48. 8 and 9. Dod. 9. 16 and 17. 'De lege Pompeia de porracidiis. On the laws de sicariis et parricidiis, see further Cod. Theodos. 9. 14 and 15. with Godefroy's commentary, V. 3. p. 84—118.
$ 7. Defalsis, p. 389. Dig. 48. 10. 5 Eliz. ch. 14. 8 Geo. 1. ch. 22. 12 Geo. 1. ch. 22. 2 Geo. 2. ch. 25, &c. Our Pennsylvania act respecting forgery.
$ 8. De vi, p. 389. Dig. 48. 6. 7. Cod. 9. 13.
$ 9. De peculattts, p. 390. A pecore, in which wealth chiefly consisted in early times. Dig. 48. 13.
§ 10. De plagiariis, p. 390. Dig. 48. 15. Cod. ;9. 20. I have already spoken of kidnapping, at sect. 9. of Tit. 1. of this book of the Institutes.
*$ 11. De dmlilu, p. 391. [ *654 ]
Lex Julia de ambilu.] Vid. IT. 48. t. 14.
The crime, which the Romans call ambitus, is committed by procuring any public office with money, or other gifts; and it seems to be the same offence in regard to temporal offices, as simony is in regard to spiritual preferment. Decret. Greg. ix. Lib. 5. t. 3.
But ambitus, or the buying and selling of offices, ceased to be criminal, and became common among the Romans, soon after the demolition of the republic; and this practice continued, till Justinian, becoming sensible of its evil tendency, enforced the ancient laws in order to restrain it. Nov. 8. cap. 1. 7.
In France, judicial offices are publicly set to sale, and generally sold to the highest bidder; and perhaps, as Tinney observes, there may be less reason to prohibit this species of commerce in a monarchy, than in a democracy.
Cut in England the statute of the 5th and 6th of Edw. VI. restrains '1 all persons, under pain of forfeiture and disability for the future, from "buying certain offices, which concern the king's revenue, and the ex"ecution of justice." And under these offices not only that of the chancellor of a diocess is comprehended, but also that of a commissary and register; for it was resolved in the case of doctor Trevor, the chancellor of a diocess in Wales, that both the offices of chancellor, and register, are within the statute, because they concern the administration of justice. 3 Co. Inst. 148. 12 Co. Rep. 78, 79. 3 Lev. 289. Woodward v. Fox. Harris.
Lex Julia repetu?ularum.] This law forbids all persons in public offices to take money or presents, either for administering justice, or committing injustice. Lega Julia repetundarum [pecu?iiarum] tenetur, qui, cum aliquam potest em haberet, pecuniam ob judicandum decernendumve acceperit. ff. 48. t. 11.
Fortescue, on the laws of England, declares "bribery to be a great "misprision, which is committed, when any man in a judicial place, "takes any fee or pension, robe or livery, gift, reward or brocage of any "person who hath to do with him in any way, for doing his office, or "by color of his office, but of the king only, unless it be of meat and "drink, and that of small value, cap. 51." 3 Co. Inst. 145. Harris.
De anona]. The crime fraudalce anonce is that of abusing the markets, by raising the price of provisions, forestalling, monopolizing, &c.
This offence is punishable in England by imprisonment and forfeiture of the goods or merchandize forestalled. See 25 Ed. 3. cap. 3. 2 Ric . 2. cap. 2. 27 Ed. 3. cap. 11. 5, 6 Edw. 6. cap. 14. 3 Co. Inst. p. 195.
*De zesiduiis.] Crimen residui is committed by retaining [ *655 ] the public money, or converting it to other uses than those, to which it was appropriated. Lege Julia de residuis tenetur, qui publicum pecuniam delegalam in usum aliquem retinuit, neque in eum consumpsit. S. 48. t. 13. Harris.
IND OF THE NOTES.
FROM FATHERS CATROU AND ROUILLE.
OF LAW SUITS.
I. Law. Go immediately with the person who cites you before the judge.
II. Law. If the person you cite refuses to go with you before the judge, take some that are present to be witnesses of it, and you shall have a right to compel him to appear.
III. Law. If the person cited endeavors to escape from you, or puts himself into a posture of resistance, you may seize his body.
IV. Law. If the person prosecuted be old, or infirm, let him be carried in a Jumentum, or open carriage. But if he refuse that, the prosecutor shall not be obliged to provide him an Arcera, or covered carriage.
V. Law. But if the person cited find a surety, let him go.
VI. Law. Only a rich man shall be security for a rich man. But any security shall be sufficient for a poor man.
VII. Law. The judge shall give judgment according to the agreement made between the two parties by the way.
VIII. Law. If the person cited has made no agreement with his adversary, let the Praetor hear the cause from sun-rising till noon; and let both parties be present when it is heard, whether it be in the Forum, or Comitium.
IX. Law. Let the same Praetor give judgment in the afternoon, though but one of the parties be present.
X. Law. Let no judgments be given after the going down of the sun.
XI. Law. When the parties have pitched upon a judge or arbitrator by consent, let them give securities that they will appear. Let him who does not appear in court, pay the penalty agreed upon, unless he was hindered by some great fit of sickness, or by the performance of some vow, or by business of state, or by some indispensable engagement with a foreigner. If any one of these impediments happen to the judge or arbitrator, or either of the parties, let the hearing be put off to another day.
XII. Law. Whoever shall not be able to bring any witnesses to prove his pretensions before the judge, may go and make a clamour for three days together, before his adversary's house.
I. Law. He that is attacked by a robber in the night, let him not be punished if he kills him.
II. Law. If the robbery be committed by day, and if the robber be taken in the fact, let him be beaten with rods, and become the slave of him whom he robbed. If the robber be a slave already, let him be beaten with rods, and thrown down headlong from the top of the capitol. If he be a child, under the age of puberty, let him be corrected, according to the Prcetor's diecretion,, and let reparation be made to the injured party.
III. Law. When robbers attack any person with arms, if the person attacked has cried out for help, he shall not be punished if he kill the robbers.
IV. Law. When upon a legal search any stolen goods are found in a house, the robbery shall be punished upon the spot, as if openly and publicly committed.
V. Law. For robberies committted privately, the robber shall be condemned to pay double the value of the things stolen.
VI. Law. Whosoever shall cut down trees, which do not belong to him, he shall pay 25 Asses of brass, for every tree so felled.
VII. Law. If any one comes privately, by night, and treads down another man's field of corn, or reaps his harvest, let him be hanged up, and put to death, as a victim devoted to Ceres. But if he be a child, under the age of puberty, let the Prcetor order him to be corrected as he shall think fit, or let double satisfaction be made for the damage he has done. _