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"with, such person or persons shall, on conviction thereof, be "deemed guilty of receiving stolen goods, knowing the same to "be stolen, as if the same had been stolen on shore, and suffer "the like punishment as for a misdemeanor at the common law, or be liable to be transported for seven years, at the discretion "of the court before which he, she or they shall be tried."

By 1 and 2 Geo. 4. c. 76. similar provisions are made for the Cinque Ports.

For destroying king's ships, &c. vide ante, p. 50-" Offences "against the King."

By the articles of war, king's ships negligently running others down, the offender to be punished by court-martial.

For Damaging Ships in Thames, vide ante, p. 232.

CHAP. XXV.

OF PURVEYANCE.

ANCIENTLY the king's court was supplied with necessaries from the ancient demesnes of the crown, which were manured for that purpose, and in respect thereof the tenants of those lands had many privileges, which they still enjoy; but this method being found to be troublesome and inconvenient, was by degrees disused, and afterwards the king used to appoint certain officers to buy in provisions for his household, who were called purveyors, and claimed many privileges, by the prerogative of the crown, and seem to have had the pre-emption of all such victuals as were brought by any one to sell again.

+ Sect. 2. By Magna Charta, chapter 21. "The king shall "not take the timber of any person against his will:" and by many subsequent statutes, several offences of purveyors were made felonies; as if they took things above the value of twelvepence against the will of the owner, without warrant, or without such appraisement as was directed by those statutes, or without paying for them, &c.

+ Sect. 3. But these laws having been found by experience not to have sufficiently provided against the oppressions of persons employed for making provisions for his majesty's household, carriages, and other purveyance for his majesty, and several counties having found themselves obliged to submit to sundry rates and taxes, and compositions, to redeem themselves from such vexations and oppressions, as it is recited by 12 Car. 2. c. 24. s. 12. it was enacted by the said statute, That from thenceforth no sum or sums of money, or other thing, shall be taken, raised, "taxed, rated, imposed, paid, or levied, for or in regard of any provision, carriages, or purveyance for his majesty, his heirs or successors."

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Sect. 4. And by 12 Car. 2. c. 24. s. 13. it is further enacted,

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"That no person or persons, by any warrant, commission, or "authority under the great seal, or otherwise, by colour of buy"ing or making provision or purveyance for his majesty, or any "queen of England for the time being, or of any of the children "of any king or queen of England for the time being, or that "shall be, or for his, their, or any of their household, shall take any timber, fuel, cattle, corn, grain, malt, hay, straw, victual, "cart, carriage, or other thing whatsoever, of any the subjects of "his majesty, his heirs or successors, without the free and full "consent of the owner or owners thereof, had and obtained "without menace or enforcement; nor shall summon, warn, take, use, or require any the said subjects to furnish or find any "horses, oxen, or cattle, carts, ploughs, wains, or other carriages, for the use of his majesty, his heirs or successors, or of "any queen of England, or of any child or children of any of the "kings or queens of England for the time being, for the carrying "the goods of his majesty, his heirs or successors, or the said queens, or children, or any of them, without such full and free "consent as aforesaid; any law, statute, custom, or usage to the "contrary notwithstanding."

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Sect. 5. And by 12 Car. 2. c. 24. s. 14. it is further enacted, "That no pre-emption shall be allowed or claimed in the behalf "of his majesty, or of any of his heirs or successors, or of any of "the queens of England, or of any of the children of the royal family, for the time being, in market or out of market, but that "it be free to all and every the subjects of his majesty, to sell, "dispose, or employ his said goods to any other person or persons, as him listeth; any pretence of making provision or pur"veyance of victual, carriages, or other thing for his majesty, "his heirs or successors, or of the said queens or children, "or any pretence of pre-emption in their, or any of their behalfs "notwithstanding. And if any person or persons shall make "provision or purveyance for his majesty, his heirs or successors, "or any the queens or children aforesaid, or impress or take any "such carriages, or other things aforesaid, on any pretence or "colour of any warrant aforesaid, under the great seal, or other"wise, contrary to the intent hereof, it shall be lawful for the "justices of peace, or such two or one of them as dwell near, "and to the constables of such parish or village where such "occasion shall happen, at the request of the party grieved, to "commit, or cause to be committed, the party or parties so doing and offending, to gaol, till the next sessions, there to be "indicted and proceeded against for the same," &c.

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Sect. 6. But this absolute and universal restraint of all kinds of purveyance having been found by experience inconvenient, it was enacted by 13 and 14 Car. 2. c. 20. which has been often continued by subsequent statutes, that the officers of the navy may press carriages for the use of his majesty's navy and ordnance, according to the regulations prescribed by that statute, and the like was enacted by 1 Jac. 2. c. 10. in relation to the king's royal progresses, &c.

END OF PART I.

BOOK

BOOK I. PART II.

OF OFFENCES AGAINST THE COMMONWEALTH.

IT has been before observed (Chap. II. p. 5.) that of offences against man, some were more immediately against the king, others more immediately against the subject. In the preceding Part, the offences against the king, as affecting his person and rights, and also against the subject, as affecting his person, habitation, and property, have been considered. It now remains to consider of offences against the COMMONWEALTH, which offences may be distributed under the following heads:

Offences against GOD and RELIGION.

against PUBLIC JUSTICE.

against the PUBLIC PEACE.
against PUBLIC TRADE.

against the PUBLIC REVENUE.

against the PUBLIC HEALTH.
against the PUBLIC ECONOMY.

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CHAP. XXVI.

AGAINST, GOD.

Of Heresy.

THE offences more immediately against God are, by common law, of three kinds: Heresy, Witchcraft, and Sodomy.

Concerning HERESY, I shall consider, 1. What it is. (1) 2. By whom it is cognizable. 3. How it is punishable.

258-260.
1 Hale, 383 to
410. 3 Inst. 40.

Sect. 1. As to the first point, it seems, that among protestants, 4 Comm. 44. heresy is taken to be a false opinion, repugnant to some point of 2 Burn. E. L. doctrine clearly revealed in scripture, and either absolutely essential to the Christian faith, or at least of most high importance. Sect. 2. But it is impossible to set down all the particular errors 4 Comm. 48. which may properly be called heretical, concerning which there 4 Com. Dig.

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8vo edit, 342 to are, 347.

"rum, vel de articulis fidei aliter prædicat, docet, vel "sentit quàm docet sancta mater ecclesia, dicitur here"ticus." (Provinciale de Hæreticis.)

A A

(a) Repealed by 16 Car. 1. c. 11.

8. 3.

3 Inst. 40.

B. Heresy, passim.

are, and always have been, so many intricate disputes. However, the statute 1 Eliz. c. 1. s. 18. which erected the high commission court (a), having restrained the same from adjudging any points to be heretical which have not been determined to be such, either by scripture, or by some one of the four first general councils, or by some other council, by express words of scripture, or by the parliament, with the assent of the convocation; it has been since generally holden, that these rules will be good directions to ecclesiastical courts in relation to heresy.

Sect. 3. As to the second point, viz. by whom heresy is cognizable. It is certain that the convocation may declare what opi2 R. Abr. 226. nions are heretical; but it hath been questioned of late, whether they have power at this day to convene and convict the heretic.

F. N. B. 269.
Sum. 5.

1 Hale, 392.
Gib. 401. 410.

12 Co. 56, 57.

Sect. 4. However it is agreed, that every bishop may convict persons of heresy within his own diocese, and proceed by church censures against those who shall be convicted: but it is said, that no spiritual judge who is not a bishop; hath this power; and it 93. 3 Inst. 40. has been questioned, whether a conviction before the ordinary be a sufficient foundation whereon to ground the writ de hæretico comburendo, as it is agreed that a conviction before the convocation was.

9 St. Tr. 275.

27 H. 8. 14. 5 Co. 58. Hob. 236.

3 Inst. 39. 12 Co. 56. Finch. 219.

1 Salk. 135.

1 Hale, 399.
3 Inst. 42.
1 Roll. 110.
2 Bulst. 300.

5 Co. 5.
1 And. 191.
1 Leon. 190.
3 Lev. 314.
1 Hale, 407.

Sect. 5. By 24 Hen. 8. c. 9. the archbishop of either province may cite any person before him for heresy, if the immediate ordinary either consent thereto, or do not his duty in punishing the same.

Sect. 6. But it is certain, that a man cannot be proceeded against at the common law, in a temporal court, merely for heresy; yet if, in maintenance of his errors, he set up conventicles, and raise factions, which may tend to the disturbance of the public peace, it seems that he may in this respect be fined and imprisoned, upon an indictment, &c. at the common law.

Sect. 7. Also a temporal judge may incidentally take notice, whether a tenet be heretical or not; as where one was committed by force of 2 Hen. 4. c. 5. for saying, that he was not bound by the law of God to pay tithes to the curate; and another for saying, that though he was excommunicated before man, yet he was not before God; the temporal courts on an habeas corpus in the first case, and on an action of false imprisonment in the other, adjudged neither of the points to be heresy within the statute; for the king's courts will examine all things which are ordained by

statute.

Sect. 8. Also in a quare impedit, if the bishop pleaded that he refused the clerk for heresy, it seems that he must set forth the particular point, that it may appear to be heretical, to the court wherein the action is brought; which having conusance of the original cause, must by consequence have a power as to all incidental matters necessary for the determination of it; and, without knowing the very point alleged against the clerk, will not be able to give directions concerning it to the jury, who, if the party be dead, are to try the truth of the allegation.

Sect.

Sect. 9. But if a man be proceeded against as an heretic in the 5 Co. 88. spiritual court pro sulute animæ, and think himself aggrieved, his 27 H. 8. 14. proper remedy seems to be by appeal to a higher ecclesiastical court, and not to move for a prohibition from a temporal one, which, as it seems to be agreed, cannot regularly determine or discuss what shall be called heresy.

c. 29.

Sect. 10. As to the THIRD POINT, viz. How heresy is punish- F. N. B. 269. able, (2) there is no doubt but that at common law one convicted 3 Inst. 43. thereof, and refusing to abjure it, or falling into it again after he Dr. and St. 1, 3, had adjured it, might be burnt by force of the writ de hæretico comburendo, which was grantable out of chancery upon a certificate of such conviction; but it is said, that he forfeited neither lands nor goods, because the proceedings against him were only pro salute anima.

Sect. 11. But at this day the writ de hæretico comburendo is abolished by 29 Car. 2. c. 9. And all the old statutes which give Sum. 4, 5. a power to arrest or imprison persons for heresy, or introduce for- Gilb. 353. feiture on that account, are repealed.

12 Co. 44.

Sect. 12. Yet by the common law, an obstinate heretic being 1 Salk. 293. excommunicated, is still liable to be imprisoned by force of the B. R. H. 314. writ de excommunicato capiendo, till he makes satisfaction to the

church.

Sect. 13. And by 9 and 10 Will. 3. c. 32. "If any person, Penalty and dis"having been educated in or having made profession of the chris- ability for deny"tian religion within this realm, shall be convicted in any of the ing any one of the persons of "courts of Westminster, or at the assizes, of denying any one of the Holy Trinity "the persons in the Holy Trinity to be God, or of maintaining that to be God. "there are more Gods than one, or of denying the truth of the Repealed as to the Trinity by "Christian religion, or the divine authority of the holy scriptures, st. . Geo. 3. "he shall for the first offence be adjudged incapable of any office; c. "and for the second, shall be disabled to sue any action, or to be "a guardian, executor, or administrator; or to take by any legacy 3 Jac. 1. c. 21. or deed of gift, or to bear any office civil or military, or bene"fice ecclesiastical, for ever, and shall also suffer imprisonment "for three years, without bail or mainprize, from the time of such "conviction."

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Sect. 14. But by 9 and 10 Will. 3. c. 32. s. 2. it is provided, Information "That no person shall be prosecuted by virtue of this act for any within four must be given "words spoken, unless the information of such words shall be days, and "given upon oath before a justice of the peace within four days prosecution "after such words spoken; and the prosecution of such offence commenced "be within three months after such information."

Sect. 15. Also by 9 and 10 Will. 3. c. 32. s. 3. " "convicted of the aforesaid crimes shall, for the

(2) By the canon law, when a person was declared a heretic, all the relations and charities of civil life were dissolved, for Lyndwood tells us, "Sunt enim hæretici ipso jure excommunicati. Item " omnes eorum fideles liberantur, et omnis obligatio eis "quæsita dissolvitur. Item in filiis dissolvitur vinculum "patris potestatis, et ipsi filü fratres et sorores debent

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Any person first offence

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within three months.

But if the offender shall renounce his erro

(upon neous opinions,

eos deserere, et cum eis dissolvitur conjugalis servitus "et potest fieri separatio a thoro. Item hæretici sunt, "infames et intestabiles activè et passive." From what part of the charitable doctrines delivered by the holy founder of our religion, these learned and pious canonists drew their authorities, it may be difficult to determine.

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