: than that of his accomplices, by reason of the difference of his punishment ". (5) 3. Because formerly no man could be tried as accessory till after the principal was convicted, or at least he must have been tried at the same time with him though that law is now much altered, as will be shewn more fully in it's proper place. 4. Because, though a man be indicted as accessory and acquitted, he may afterwards be indicted as principal: for an acquittal of receiving or counselling a felon, is no acquittal of the felony itself: but it is matter of some doubt, whether, if a man be acquitted as principal, he can be afterwards indicted as accessory before the fact; since those offences are frequently very nearly allied, and therefore an acquittal of the guilt of one may be an acquittal of the other also'. (6) But it is clearly held, that one acquitted as principal may be indicted as an accessory after the fact; since that is always an offence of a different species of guilt, principally tending to evade the public justice, and is subsequent in its commencement to the other. Upon these reasons the distinction of principal and accessory will appear to be highly necessary; though the punishment is still much the same with regard to principals, and such accessories as offend before the fact is committed. Beccar. c. 37. 1 Hal. P. C. 625. 626. 2 Hawk. P.C. c.35. § 11. Foster. 361. (5) It is impossible, however, not to feel, that in many instances the conduct of the accessory before the fact is much more criminal and mischievous than that of the principal, and therefore merits a severer punishment. The legislature has recently acted under this impression, and by 3G.4. c.38. has enacted that in all cases in which accessories before the fact to any grand larceny, are by the law within benefit of clergy, and liable only to a fine and one year's imprisonment, the court may at its discretion, instead of that punishment, sentence them to transportation for seven years, or imprisonment with or without hard labour to the extent of three years. And for the more speedy conviction of such offenders, the same statute enacts that all accessories before the fact to burglary, robbery, or grand larceny, may be prosecuted for a misdemesnor, and punished with two years' imprisonment and hard labour, though their principals have not been convicted, and whether they are or are not amenable to justice. (6) The authorities of Hawkins and Foster are both against this reasoning, and the principle of the law is certainly with them, because the offences are specifically different, and require different evidence to prove them. CHAPTER THE FOURTH. OF OFFENCES AGAINST GOD AND : b IN the present chapter we are to enter upon the detail of the 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, 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 it's social aggregate capacity. And in the very entrance of these Commentaries 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 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 farther 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, it's evil example makes it liable to temporal censures. The vice of lying, which consists (abstractedly taken) in a criminal violation of truth, and therefore in any shape [ 42 ] 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 a See pag.5. See Vol. I. pag.123, 124. Beccar. ch. 8. [ 43 ] slander and malicious prosecution, for which a private recompence is given. And yet drunkenness and malevolent lying are in foro conscientiae as thoroughly criminal 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 are punished by the municipal law, that have in themselves nothing criminal, but are made unlawful by the positive constitutions of the state for public convenience; such as poaching, exportation of wool, and the like. These are naturally 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 community, to make some things unlawful, which were 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 treatise of municipal law we must consider them all as deriving their particular guilt, here punishable, from the law of man. HAVING premised this caution, I shall next proceed to distribute the several offences, which are either directly or by consequence injurious to civil society, and therefore punishable by the laws of England, under the following general heads: first, those which are more immediately injurious to God and his holy religion: secondly, such as violate and transgress the law of nations; thirdly, such as more especially 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, 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. FIRST then, of such crimes and misdemesnors, as more immediately offend Almighty God, by openly transgressing the precepts of religion either natural or revealed; and mediately by their bad example and consequence, the law of society also: which constitutes that guilt in the action, which human tribunals are to censure. I. Or this species the first is that of apostasy, or a total renunciation of christianity, by embracing either a false religion, or no religion at all. This offence can only take place 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; to which the emperors Theodosius and Valentinian added capital punishment, in case the apostate endeavoured to pervert others to the same iniquity": 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, that in his time apostates were to be burnt to death. Doubtless the preservation of christianity, as a national religion, is, abstracted from it's own instrinsic 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 attesting: all moral evidence, therefore, all confidence in human veracity, must be weak- [ 44 ] ened by apostasy, and overthrown by total infidelity. Wherefore all affronts to christianity, or endeavours to depreciate it's efficacy, in those who have once professed it, are highly deserving of censure. But yet the loss of life is a heavier d Cod. 1. 7. 1. e Ibid. 6. f 1. 3. c.9. & Utiles esse opiniones has, quis neget, cum intelligat, quam multa firmentur jurejurando; quantae salutis sint foede rum religiones; quam multos divini sup- 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 apostasy was for a long time the object only of the ecclesiastical courts, which corrected the offender pro salute animae. But about the close of the last century, the civil liberties to which we were then restored being used as a cloke 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 to the privileges of society, who maintained such principles as destroyed all moral obligation. To this end it was enacted by statute 9 & 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) 66 II. A SECOND offence is that of heresy, which consists not in a total denial of christianity, but of some of it's essential [45] doctrines, publicly and obstinately avowed; being defined by sir Matthew Hale, "sententia rerum divinarum humano sensu excogitata, palam docta et pertinaciter defensa." 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 doctrine shall therefore be adjudged heresy, was left by our old constitution to h Mescroyantz in our antient law i 1 Hal. P. C. 384. pooks is the name of unbelievers. (1) See post, p.50. |