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spirit to and for any intent of purpose ;—or take up any dead man, woman: or child, out of hie, her, or their grave, or any other place, where the dead body reeteth, or the skin, bone, or any other part of any dead person, to be employed in any manner of witchcraft, enchantment, charm or sorcery, whereby any person •hall be killed, destroyed, wasted, consumed, pined or lamed in his or her body, or any part thereof; that then every such offender, or offenders, their aiders, abettors, and counsellors, being guilty of any of the said offences, duly and lawfully convicted, shall suffer pains of death, as a félon or felons, and shall lose the benefit of clergy and sanctuary.
"And further, to the intent that all manner of practice, use or exercise of witchcraft, enchantment, charm, or sorcery, should be from henceforth utterly abolished, be it enacted, that, if any person or persons, shall from and after the feast of St. Michael next coming, take upon him or them by witchcraft, enchantment, charm, or sorcery, to tell or declare in what place any treasure might be found, or where goods, or things lost or stolen, should be found, or to the intent to provoke any person to unlawful love; or whereby any cattle or goods of any person,, »hall be destroyed, wasted or impaired; or to hurt or destroy any person in his or her body, although the same be not effected; that then all persons, so offending, and being convicted, shall suffer a year's imprisonment, and stand in the pillory once every quarter for six hours, and there openly confess his, or her error, and offence." The second offence is felony. 1 Jae. I. cap. 12.
Lord Coke hath written a learned comment upon this statut?, in which, he declares, that it would be a very great defect in government to suffer so great art 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 uf 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 Traveler, 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, entitled, .in act against conjuration, witchcraft, and dealing with, evil and wicked spirits, shall be * repealed and utterly void,, except so * 653 much as repeals the statute of the 5th of Elizabeth, entitled an act against conjuration, Ase. Ac.—that an act passed in Scotland, in the ninth parliament of Queen Mary, entitled Anentis witchcrafts, 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, enchantment, or conjuration, 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 quarter 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. 2d at Bury St. Edmonds, where saye the account, "in conclusion, the judge and ail the court were fully satisfied with the verdict, and thereupon gave Judgment against the witches that they should be hanged. They were much urged to confess, but would not: on the 17th of March following they were executed much to the credit of Sir Matthew Hale! See also the statements which Ch. Justice Marshall in his life of Washington Vol. 1. Appendix page 0, gives of the proceedings of the bigots of New England in 1692, from Hutchinson; and Dr. Feriar'» essay on popular illusions in the Manchester transactions.
§ 6. De parracidiis, p. 388. Vide Dig. 48. 8 and 9. Cod. 9. 16 and 17. De lege Pompeia de parricidiis. On the laws de sicariis ct parricidiis, see further Cod. Theodos. 9. 14 and 15. with Godefroy's commentary, V. 3 p. 84—118.
§ 7. Defaisis, 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 peculatus, p. 390. A pecorc, in which wealth chiefly consisted in early times. Dig. 48. 13.
\ 10. De plagiants, p. 390. Dig. 43. 15. Cod. 9. 20. I have already spoken of Kidnapping, at sect. 9. of Tit. 1 of this book of the Institutes. "654 § 11. *De ambitu, p. 391. Lex Julia de ambitu.] vid.ff. 48. Í- 14.
The crime, which the Romans called 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. Décret. 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. Лог. 8. cap. 1. 7.
In France judicial offices are publicly set to sale, and generally sold to the highest bidder; and perhaps, as Vinny observes, there may be less reason to prohibit this species of commerce in a monarchy, than in a democracy.
But in England the statute of the 5th and 6th of Edw. VI. restrains "all persons under pain of forfeiture and disability for the future, from buying certain offices, which concern the king's revenue, and the execution 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 repetundarum.] This law forbids all persons in public offices to take money or presents, either for administering justice, or committing injustice. Lege Julia repetundarum [pecuniarum] tenetur, qui, cum aliquam potestem haberet, pecuniam ob judicandum decernendumve acceperit. ff. 48. t. 11.
Fortescuei 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 before him any way, for doing his office, or by color of his office, but of the king only, unless it be of meal and drink, and that of small value, cap. 51." 3 Co. Inst. 145. Harris.
De anona.] The crime fraúdala anona; is that of abusing the markets, by raising the price of provisions, forestalling, monopolizing, Ac.
This offence is punishable in England by imprisonment and forfeiture of the goods or merchandise 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.
*Dc rtsiduis] Crimen rcsidvi is committed by retaining the public "655 money, or converting it to other uses than those, to which it was appropriated. Lege Julia de residuis tenetur, qui publicam pecuniam delegatam in usum aliquem retinuit, neque in eum consumpsit. ft'. 43. t. 13. Harris.
FROM FATHERS CATROU, AND ROUILLE.
*636 "I. Law. Go immediately with the person who cites yon before the
II. Law. If the person you cite refuses to go with yoa before the judge, take some that are present to be witnesses of it, and you shall have a right to compel
h i in to appear.
1П. Law. If the person cited endeavors to escape from you, or puts himself int» a posture of resistance, you may seile his body.
IV. Law. If the person prosecuted be old, or infirm, let him be carried in & Jumrniiin, or open carriage. But if he refuse that, the prosecutor shall not be obliji il to provide him an Antra, or a 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 PratuT 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 Prator 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 aun.
*657 "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 npon, unless he was hindered by some great fit of sickness, or by the performance of some vow, or by business of stete, 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. Laiv. Whoever shall not be able to bring any witnesses to prove his pretensions before the judge, may go and make a clamor 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 capítol. If he be a child, under the age of puberty, let him be corrected, according to the Prœlor'a discretion, 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 be 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 committed 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 Яззеа 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 Prator order him to be corrected as he shall think fit, or let double satisfaction be made for the damage he has done.
* VIII. Law. If a robber and the person robbed agree together upon *658 terms of restitution, no farther action shall lie against the robber.
IX. Law. Prescription shall never be pleaded as a right to stolen goods, nor ■hall a foreigner have a right to the goods of any Roman citizen, by the longest possession.
X. Law. If any one betrays his truet, with respect to what is deposited in his hands, let him pay double the value of what was so deposited, to him who entrusted him with it.
XI. Law. If any one finds any of his goods in another man's possession, who became possessed of them by a breach of trust, let the Prator nominate three arbitrators to judge of it. And let the wrongful possessor pay double the value of what he has gained by detaining them.
XII. Law. If a slave has committed a robbery, or done any damage, with the privity, and at the instigation of his master, let the master deliver up the slave to the person injured, by way of compensation.