himself of ten pounds, befides an incapacity to hold any ecclefiaftical preferment for seven years afterwards. Corrupt elections and refignations in colleges, hofpitals, and other eleemofynary corporations, are also punished by the same statute with forfeiture of the double value, vacating the place or office, and a devolution of the right of election for that turn to the crown.

IX. PROFANATION of the lord's day, vulgarly (but improperly) called fabbath-breaking, is a ninth offence against God and religion, punished by the municipal law of England. For, befides the notorious indecency and fcandal, of permitting any fecular business to be publicly tranfacted on that day, in a country profeffing christianity, and the corruption of morals which ufually follows it's profanation, the keeping one day in feven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to a ftate, confidered merely as a civil inftitution. It humanizes by the help of conversation and society the manners of the lower claffes; which would otherwise degenerate into a fordid ferocity and favage selfishness of spirit: it enables the industrious workman to pursue his occupation in the ensuing week with health and chearfulness: it imprints on the minds of the people that sense of their duty to God, so neceffary to make them good citizens; but which yet would be worn out and defaced by an unremitted continuance of labour, without any ftated times of recalling them to the worship of their maker. And therefore the laws of king Athelftan forbad all merchandizing on the lord's day, under very severe penalties. And by the statute 27 Hen. VI. c. 5. no fair or market shall be held on the principal festivals, good friday, or any funday, (except the four fundays in harvest) on pain of forfeiting the goods exposed to sale. And, fince by the statute 1 Car. I. c. 1. no person shall asfemble, out of their own parishes, for any fport whatsoever upon this day; nor, in their parishes, shall use any bull or bear baiting, interludes, plays, or other unlawful exercises, or paftimes; on pain that every offender shall pay 35 4d to the poor. This ftatute does not prohibit, but rather impliedly allows, any innocent recreation or amufement, within their

64

PUBLIC

BOOK IV. respective parishes, even on the lord's day, after divine service is over. But by statute 29 Car. II. c. 7. no person is allowed to work on the lord's day, or ufe any boat or barge, or expofe any goods to fale; except meat in public houses, milk at certain hours, and works of neceffity or charity, on forfeiture of 5s. Nor fhall any drover, carrier, or the like, travel upon that day, under pain of twenty fhillings (b).

IX. DRUNKENNESS is also punished by statute 4. Jac. I. c. 5. with the forfeitnre of 5s; or the fitting fix hours in the ftocks by which time the ftatute prefumes the offender will have regained his fenfes, and not be liable to do mifchief to his neighbours. And there are many wholesome statutes, by way of prevention, chiefly paffed in the fame reign of king James I, which regulate the licencing of ale-houses, and punish perfons found tippling therein; or the mafters of fuch houses permitting them.

XI. THE laft offence which I fhall mention, more im mediately against religion and morality, and cognizable by the temporal courts, is that of open and notorious lewdnefs : either by frequenting houses of ill fame, which is an indict

(b) [By ftatute 21 Geo. 3. c.49. it is enacted, that any house, room, or other place, which fhall be opened or used for public entertainment or amufement, or for publicly debating on any subject whatsoever, within the cities of London or Weftminster, or in the neighbourhood thereof, upon any part of the lord's day called funday, and to which persons fhall be admitted by the payment of money, or by tickets fold for money, fhall be deemed a diforderly houfe or place; and the keeper of fuch houfe, room, or place, shall forfeit the fum of 2001. for every day that fueh houfe, room, or place fhall be opened or ufed as aforefaid on the lord's day, to fuch perfon as will fue for the fame; and be otherwise punishable as the law directs in cafes of disorderly houses: and the perfon managing or conducting fuch entertainment or amusement on the lord's day, or acting as malter of the ceremonies there, or as moderator, prefident, or chairman of any fuch meeting for public debate on the lord's day, fhall likewife for every fuch offence forfeit the fum of 1007. to fuch perfon as will fue for the fame; and every door keeper, fervant, or other perfon who fhall collect or receive money or tickets from perfons affembling at fuch house, room, or place on the lord's day, or who fhall deliver out tickets for admitting perfons to fuch houfe, room, or place on the lord's day, shall also forfeit the fun of 50 1. to such perfon as will fue for the fame: and that any person advertising or caufing to be advertised any public entertainment or amufement, or any public meeting for debating on any subject whatsoever, on the lord's day, to which perfons are to be admitted by the payment of money, or by tickets fold for money; and any perfon printing or publishing any fuch adver tifement, shall respectively forfeit the fum of 501. for every fuch offence, to any perfon who will fue for the fame.]

able

able offence; or by fome grossly fcandalous and public indecency, for which the punishment is by fine and imprisonment". In the year 1650, when the ruling powers found it for their intereft to put on the semblance of a very extraordinary strictnefs and purity of morals, not only inceft and wilful adultery were made capital crimes; but also the repeated act of keeping a brothel, or committing fornication, were (upon a second conviction) made felony without benefit of clergy ". But at the restoration, when men, from an abhorrence of the hypocrify of the late times, fell into a contrary extreme of licentiousness, it was not thought proper to renew a law of fuch unfashionable rigour. And these offences have been ever fince left to the feeble coercion of the spiritual court, according to the rules of the canon law; a law which has treated the offence of incontinence, nay even adultery itself, with a great degree of tenderness and lenity; owing perhaps to the constrained celibacy of it's firft compilers. The temporal courts therefore take no cognizance of the crime of adultery, otherwife than as a private injury *.

BUT, before we quit this fubject, we must take notice of the temporal punishment for having baftard children, confidered in a criminal light; for with regard to the maintenance of fuch illegitimate offspring, which is a civil concern, we have formerly spoken at large. By the ftatute 18 Eliz. c. 3. two justices may take order for the punishment of the mother and reputed father; but what that punishment shall be is not therein ascertained; though the contemporary expofition was, that a corporal punishment was intended. By ftatute 7 Jac. I. c. 4. a fpecific punishment (viz. commitment to the house of correction) is inflicted on the woman only. But in both cafes, it seems that the penalty can only be inflicted, if the baftard becomes chargeable to the parish; for otherwise the very maintenance of the child is confidered as a degree of punishment. By the last mentioned statute the justices may commit the mother to the house of correction, there to be punished and set on work for one year; and, in cafe of a fecond offence, till fhe find fureties never to offend again.

t Poph. 208.

Siderf. 168: w Scobell. 121.

VOL. IV.

E

x See Vol. III. pag. 139.

y See Vol. I. pag. 458.

z Dalt. just. ch. 11.

CHAPTER THE FIFTH.

OF OFFENCES AGAINST THE LAW OF NATIONS.

A

CCORDING to the method marked out in the

preceding chapter, we are next to confider the offences more immediately repugnant to that univerfal law of fociety, which regulates the mutual intercourse between one state and another; those, I mean, which are particularly animadverted on, as fuch, by the English law.

THE law of nations is a system of rules, deducible by natural reason, and established by univerfal confent among the civilized inhabitants of the world; in order to decide all difputes, to regulate all ceremonies and civilities, and to infure the obfervance of justice and good faith, in that intercourse which must frequently occur between two or more independent states, and the individuals belonging to each ". This general law is founded upon this principle, that different nations ought in time of peace to do oneanother all the good they can; and, in time of war, as little harm as poffible, without prejudice to their own real interefts. And, as none of these states will allow a fuperiority in the other, therefore neither can dictate or prescribe the rules of this law to the reft; but fuch rules muft neceffarily refult from those

a Ff. 1. 1. 9.

See Vol. I. pag. 43.

I

c Sp. L. b. I. c. 3.

principles

principles of natural juftice, in which all the learned of every nation agree; or they depend upon mutual compacts or treaties between the respective communities; in the construction of which there is alfo no judge to refort to, but the law of nature and reafon, being the only one in which all the contracting parties are equally converfant, and to which they are equally subject.

IN arbitrary states this law, wherever it contradicts or is not provided for by the municipal law of the country, is enforced by the royal power: but fince in England no royal power can introduce a new law, or fufpend the execution of the old, therefore the law of nations (wherever any question arifes which is properly the object of it's jurifdiction) is here adopted in it's full extent by the common law, and is held to be a part of the law of the land. And thofe acts of parlia ment, which have from time to time been made to enforce this univerfal law, or to facilitate the execution of it's decifions, are not to be confidered as introductive of any new rule, but merely as declaratory of the old fundamental conftitutions of the kingdom; without which it must cease to be a part of the civilized world. Thus in mercantile questions, such as bills of exchange and the like; in all marine causes, relating to freight, average, demurrage, infurances, bottomry, and others of a fimilar nature; the law-merchant", which is a branch of the law of nations, is regularly and constantly adhered to. So too in all disputes relating to prizes, to shipwrecks, to hoftages, and ransom bills, there is no other rule of decifion but this great univerfal law, collected from history and ufage, and fuch writers of all nations and languages as are generally approved and allowed of.

BUT, though in civil tranfactions and questions of property between the fubjects of different ftates, the law of nations has much scope and extent, as adopted by the law of England; yet the present branch of our inquiries will fail