Page images

to be understeod. The ancient Enlish lawyers all agree, that it ought to be punished with death, ultimo supplicio ; though they differ, as to the manner of inflicting it. Britton says, that Sodomites and miscreants shall be burned –Fleta writes, that they shall be buried alive; pecorantes ct sodomita in terra vivi confodiantur —The author of the mirror also delivers himself much to the same purpose; and adds, that Sodomie est crime de majestie vers le roy celester. At this day by 25 Hen. 8. cap. 6, and 5 Eliz. 17. the commiters of this crime, whether male or female, are no otherwise punishable, than as common felons, who are denied the benefit of the clergy. 3 Co. Inst. cap. 10. Hawk. pl. of the crown, lib. 1. cap. 4. But it was doubted by some of the judges in the 4th year of Geo. 1. (though with little reason according to Fortescue) whether a man, indicted for buggery with a woman, could legally be convicted upon the above mentioned statute of 25 H. 8. See the King v. Wiseman, Fortescue's Repts. 91. Harris. See the notes of 8 Gibb. R. Hist. 19. Stuprum. In Dean v. Peel, 5 East, 45. it was decided, that a father could not have per quod servitium amisit, if his daughter, though a minor lived at the time of the seduction in another person's family but returned to her father who maintained her. This is something like a sacrifice of justise to form. $ 5. Lex Cornelia desicariis, p. 387. vid.s. 48. t. 8, ad legem Corneliam de sicariis et veneficis. Venefici capite damnatur..] In England, all persons suspected of conjuration, witchcraft, or inchantments, were anciently cited into the spiritual courts, where, if they were found guilty, sentence was pronounced; upon which the aid of the secular power was demanded by the ecclesiastical judge, and the supposed delinquents were burned, as heretics, by virtue of the writ de harretico comburendo; which was taken away by the 29th of Charles the 2d, cap. 9. Vid. 3 Co inst. 44, 45. Thus the ecclesiastical judges had the entire jurisdiction in respect to sorceries and enchantments, which were all ranked under the general term heresies, till the statute of the 33 H 8. which was the first statute, by which any of these offences were made felony; but this act was repealed by the 1st of Edward VI cap. 12. Conjuration and the invocation of wicked spirits, were afterwards made felony by 5 Eliz. cap. 16. And again, by a statute in the first year of fames the first, by which the 5th of Eliz. is repealed. The 1st of jac. 1. cap. 12. is to the following purport. “That the act of 5 Eliz. against conjurations, inchantments, and “witchcrafts, he utterly repealed—That if any person or persons “shall use, practice, or exercise any invocation or conjuration of any “evil and wicked spirit; or shall consult, covenant with, entertain; “employ, feed, or reward any evil and wicked spirit to and for any in“tent or purpose ; or take up any dead man, woman or child, out “of his, her, or their grave, or any other place, where the dead body “resteth, or the skin, bone, or any other part of any dead person, to “be employed in any manner of witchcraft, inchantment, charm or sor“cery, whereby any person shall be killed, destroyed, wasted, consum“ed, pined or lamed in his or her body, or any part thereof; that then “every such offender, or offenders, their aiders, abettors, and counsel“lors, being guilty of any of the said offences, duly and lawfully con“victed, shall suffer pains of death, as a felon or felons, and shall lose « the benefit of clergy and sanctuary. “And further, to the intent that all manner of practice, use or exer“cise of witchcraft, inchantment, charm, or sorcery, should be from “henceforth utterly abolished, be it enacted, that, if any person or per“sons, shall from and after the feast of St. Michael next coming, take “upon him or them by witchcraft, inchantment, 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, shall be destroyed, wasted or impaired; or to hurt or “destroy any person in his or her body, although the same be not effect“ ed; 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 jac. 1. cap. 12. 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, who nit was enacted by parliament, “That the statute, made “in the first year of king James the first, intitled, An act against conju“ration, witchcraft, and dealing with evil and wicked spirits, shall be

[ocr errors]

“repealed and utterly 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 Mary, in“titled 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, 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 suf. “fer 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. 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 “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 I See also the statements which Ch. Justice Marshall in his life of Washington Vol. 1. Appendix page 9, gives of the proceedings of the bigots of New England in 1692, from Hutchinson; and Dr. Feriar's essay on popular illusions in the Manchester transactions. $6. Deparracidiis, p. 388. Vide Dig 48.8 and 9. Cod 9.16 and ty. De lege Pompeia de parracidiis. On the laws desicariis et parricidiis, see further Cod. Theodos. 9. 14 and 15, with Godefroy's commentary, V. 3 p. 84–118. 5-7. De falsis, p. 389. Dig. 48.10. 5 Fliz. ch. 14. 8 Geo. 1. ch. 22.12 Geo. 1 ch. 22.2 Geo. 2 ch. 25, &c. Our Pennsylvania actres. pecting forgery. $ 8. Devi, p. 389. Dig. 48.6.7. Cod. 9. 13. § 9. De peculatus, p. 390. A pecore, in which wealth chiefly con. sisted 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 Institute 8.

$ 11. De ambitu, p. 391. Lex julia de ambitu.] vid. f. 48. t. 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. 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. Wov. 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 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 repetundarum.] This law forbids all persons in public of. fices to take money or presents, either for administering justice, or committing injustice. Lege julia repettendarum specuniarum] tenetur, qui, cum aliquam potestem 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 before him 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 fraudatae anona 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 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. Ins: p. 195.

The residuis.) Crimen residui is committed by retaining the public money, or converting it to other uses than those, to which it was appropriated. Lege julia de residuis tenetur, qui publicam pecuniam deJegatam in usum aliquem retinuit, neque in ean consumpsit, fl. 48. t. t3. Harris,


« PreviousContinue »