son presented. The statute 31 Eliz. c. 6. (which, so far as it relates to the forfeiture of the right of presentation, was considered in a former book) enacts, that if any patron, for money or any other corrupt consideration or promise, directly or indirectly given, shall present, admit, institute, induct, install, or collate any person to an ecclesiastical benefice or dignity, both the giver and taker shall forfeit two years' value of the benefice or dignity; one moiety to the king, and the other to any one who will sue for the same. (12) If persons also corruptly resign or exchange their benefices, both the giver and taker shall in like manner forfeit double the value of the money or other corrupt consideration. And persons who shall corruptly ordain or license any minister, or procure him to be ordained or licensed, (which is the true idea of simony,) shall incur a like forfeiture of forty pounds; and the minister himself of ten pounds, besides an incapacity to hold any ec- [63] clesiastical preferment for seven years afterwards. Corrupt elections and resignations in colleges, hospitals, and other eleemosynary 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. (13)

(12) The giver shall be incapable of enjoying the benefice; and the two years' value shall be accounted according to the rent at which it would let in the opinion of a jury, and not according to the taxation in the King's Books, or Parliamentary Survey, 3 Inst. 154.

(13) This seems not to be correctly stated; the statute (s. 2.) enacts, that if any person or persons, bodies politic or corporate, which have election or voice in the election of any fellow, &c. to have room or place in any church, college, &c. shall take money, fee, or reward for his or their voice or voices, assent or consent, then the place which such person so offending shall then have in any of the said churches, colleges, &c. shall be void; and that then, as well the queen as every other person and persons to whom the presentation, gift, &c. shall of right belong, of the room or place of the said offender, shall at their pleasure nominate to it, as if the offender were naturally dead. Under this section, the offender seems to be the person or corporation taking money, &c., though it is not easy to see how the penalty would apply to a corporation, or to an individual not having room or place in any of the churches, &c.; and the section, in this view of it, does not seem to vacate the election which may have been so corruptly made. Nor does the section devolve any turn to the crown, merely as such, but apparently either to the ordinary electors, or

VOL. IV.

F

at

IX. PROFANATION of the Lord's day, vulgarly (but improperly) called sabbath-breaking, is a ninth offence against God and religion, punished by the municipal law of England. For, besides the notorious indecency and scandal of permitting any secular business to be publicly transacted on that day, in a country professing Christianity, and the corruption of morals which usually follows it's profanation, the keeping one day in seven holy, as a time of relaxation and refreshment, as well as for public worship, is of admirable service to a state, considered merely as a civil institution. It humanizes by the help of conversation and society the manners of the lower classes; which would otherwise degenerate into a sordid ferocity and savage 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 necessary to make them good citizens; but which yet would be worn out and defaced by an unremitted continuance of labour, without any stated times of recalling them to the worship of their Maker. And therefore the laws of king Athelstan forbad all merchandizing on the Lord's day, under very severe penalties. (14) And by the statute 27 Hen. VI. c. 5. no fair or market shall be held on the principal festivals, Good Friday, or any Sunday,) except the four Sundays in harvest,) on pain of forfeiting the goods exposed to sale. And since, by the statute 1 Car. I. c. 1., no persons shall assemble out of their own parishes, for any sport whatsoever upon this day; nor, in their parishes, shall use any bull or bear-baiting, interludes, plays, or other unlawful exercises, or

€. 24.

at all events to those in whom the statutes of the foundation have placed it under such circumstances.

The third section provides for the case of a corrupt resignation, and election in consequence: it punishes the resigner by a forfeiture of the double value, not of the thing resigned, but of the corrupt consideration agreed to be received: it punishes the person elected by making him incapable of the place for that turn; and directs that they" to whom it shall appertain❞ may choose another person as if he by or for whom the corrupt consideration was agreed to be given were dead or had resigned.

(14) Perdat pretium emptionis, et solvat xxx solidos pro mulcta.—But these are by no means the severest penalties, which the Anglo-Saxon laws imposed on those who laboured or merchandized on the Lord's Day. See Wilk. 11. n. e.

pastimes; on pain that every offender shall pay 3s. 4d. to the
poor. This statute does not prohibit, but rather impliedly
allows, any innocent recreation or amusement, within their
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 use any boat or barge, or expose
any goods to sale; except meat in public houses, milk at cer-
tain hours, and works of necessity or charity, on forfeiture
of 5s. Nor shall any drover, carrier, or the like, travel upon
that day, under pain of twenty shillings. (15)

X. DRUNKENNESS is also punished by statute 4 Jac. I. c. 5. with the forfeiture of 5s., or the sitting six hours in the stocks; by which time the statute presumes the offender will have regained his senses, and not be liable to do mischief to his neighbours. And there are many wholesome statutes, by way of prevention, chiefly passed in the same reign of king James I., which regulate the licensing of ale-houses, and punish persons found tippling therein, or the master of such houses permitting them.

XI. THE last offence which I shall mention, more immediately against religion and morality, and cognizable by the temporal courts, is that of open and notorious lewdness; either by frequenting houses of ill-fame, which is an indictable offence'; or by some grossly scandalous and public indecency, [65]

t Poph. 208.

(15) There are several statutes which allow the necessary exercise of certain trades within certain limits on Sunday. By 10 & 11 W.3. c.24. mackarel may be sold before or after divine service. By the 59 G.3. c.36. and 1 & 2 G. 4. c. 50. bakers may bake and deliver meat, puddings, pies, tarts, or victuals, till half-past one in the afternoon, but they are prohibited from baking or selling any bread, rolls, or cakes on Sunday, except for travellers, or in case of urgent necessity, and they must not in any manner exercise their trade after half-past one. By the 11 & 12 W. 3. c. 21. 40 watermen are allowed to ply between Vauxhall and Limehouse, but they are to bring the earnings of the day to the rulers of the company on the Monday morning, who, after paying each man for his day's labour, shall set apart the surplus toward a fund for the use of decayed watermen and their widows. The 9 Ann. c. 23. permits chairmen and hackney coachmen to ply on Sundays. The 21 G. 3. c. 49. prohibits the opening on a Sunday of any house, or room, for public entertainment or debate, to which persons are admitted by payment of money.

W

for which the punishment is by fine and imprisonment. " In the year 1650, when the ruling powers found it for their interest to put on the semblance of a very extraordinary strictness and purity of morals, not only incest 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 hypocrisy of the late times, fell into a contrary extreme of licentiousness, it was not thought proper to renew a law of such unfashionable rigour. And these offences have been ever since left to the feeble coercion of the spiritual court, according to the rules of the canon law (16); 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 its first compilers. The temporal courts therefore take no cognizance of the crime of adultery, otherwise than as a private injury. *

1 Siderf.168.

w Scobell. 121.

* See Vol. III. pag. 139.

(16) It is not intended by these general words to lay down that the offence of keeping a brothel is not punishable by the temporal courts, for undoubtedly the keeping such a house is a nuisance at common law, and punishable as other nuisances. See post, p. 167. The proceedings in respect of them are much facilitated by the 25 G. 2. c. 56. by which it is enacted, that if two inhabitants of any parish or place, paying scot and lot therein, shall give notice in writing to the constable of any person keeping a bawdyhouse in such parish or place, the constable shall go with such inhabitants to a justice, and upon their making oath that they believe the notice to be true, and entering into a recognizance in 201. each to produce material evidence against the person for such offence, the constable shall enter into a recognizance in the sum of 30l. to prosecute the same with effect, at the next sessions or assizes, as to such justice shall seem meet. Provision is made for the payment of the constable's expences in the prosecution, and also of 10l. to each of such inhabitants by the overseers of the parish.

The party accused is to be brought by warrant before the magistrate, and bound over to appear at the next sessions or assizes; and the magistrate may also take security for his good behaviour in the mean time.

The indictment cannot be removed by the defendant to any other court; and upon the trial, if it shall be proved that he has appeared to act as the master or person having the management of the house, he shall be deemed to be the keeper, though he may not be the real owner.

BUT, before we quit this subject, we must take notice of the temporal punishment for having bastard children, considered in a criminal light; for, with regard to the maintenance of such illegitimate offspring, which is a civil concern, we have formerly spoken at large. By the statute 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 exposition was that a corporal punishment was intended." By statute 7 Jac. I. c. 4. a specific punishment (viz. commitment to the house of correction) is inflicted on the woman only. But in both cases, it seems that the penalty can only be inflicted if the bastard becomes chargeable to the parish; for otherwise the very maintenance of the child is considered 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 case of a second offence, till she find sureties never to offend again. (17)

(17) The 7 Jac. 1. c. 4., as to this purpose, is repealed by the 50 G. 3. c. 51., which enacts, that the mother of a bastard child, chargeable to the parish, may, after the expiration of one calendar month from her delivery, be committed by two justices for a time not exceeding twelve calendar months, nor less than six weeks; but when she has been confined six weeks, any two justices at the petty sessions for the division, wherein the parish charged is situate, may discharge her from farther confinement upon their own knowledge, or on certificate from the keeper of the house of correction of her good behaviour, and of the reasonable expectation of her reformation.