he shall be discharged. 3 Inst. 44. Dalt. p. 513, 514. 3 Inst. 44. F. N. B. 269. 1 Hale, 383. 45 Ed. 3. 17. B. Cor. 15. 2 Keb. 719. By 33 Hen. c. 8. witchcraft and Sorcery were made felony (upon his acknowledgment and renunciation of such erroneous "opinions within four months after conviction), be discharged "from all penalties and disabilities incurred by such conviction." Of Witchcraft. Offenders of this nature are said to have been of three kinds. CONJURERS, Who by force of certain magic words endeavoured to raise the devil, and compel him to execute their commands. WITCHES, who by way of friendly conference were said to bargain with an evil spirit to do what they desire of him. SORCERERS or charmers, who by the use of certain superstitious forms of words, or by means of images, or other odd representations of persons or things, &c. were said to produce strange effects above the ordinary course of nature. Sect. 2. All these were anciently punishable in the same manner as heretics, by the writ de hæretico comburendo after a sentence in the ecclesiastical court, and a relapse. And it is said also, that they might be condemned to the pillory, &c. upon an indictment at common law. Sect. 3. In the time of king Edward the third, one taken with the head and face of a dead man, and a book of sorcery, was brought into the king's bench: but there being no indictment against him, he was sworn that from henceforth he would not be a sorcerer, and then delivered from prison, and the head was burnt at his charge: but this method seems to be obsolete at this day. Sect. 4. By statute 1 Jac. 1. c. 12. which was the only law in. force against these offenders, they are divided into two degrees.. Those in the first degree, and their accessaries before the fact,. without clergy. were to suffer as felons without clergy. But accessaries after were entitled, 1 Hale, 7. Sum. 6, 7. Of these there were the four following species: FIRST," Such as shall use any invocation or conjuration of any 4 Inst. 45. con. " evil spirit ;" and such seem clearly to be within the law, though no spirit do actually appear. 1 Jon. 143. (a) See Lynn's Case, Cases in Cro. Law, 395. 2 T. Rep. 733. 66 SECONDLY, "Such as consult, covenant with, entertain, employ, feed, or reward any evil spirit to any intent:" and these were agreed to be within the statute, though nothing farther was done upon such consultation, &c. THIRDLY, "Such as take up any dead person's body, or any part thereof (a), to be used in any manner of witchcraft:" and these were also clearly within the statute, though they did not actually so use it. FOURTHLY, "Such as exercise any witchcraft, inchantment, "charm, or sorcery, whereby any person shall be killed, destroyed, "consumed, "consumed, or lamed in his or her body, or any part thereof.". But none were within this branch who did not actually effect such mischief. Sect. 5. Those in the second degree were, for the first offence, to suffer a year's imprisonment, and the pillory; and for the second, as felons without clergy. And these, by the manifest purport of the words of the act, which is very obscurely penned, seem to be divided into the two following species: FIRST," Such as take upon them by witchcraft, inchantment, 12 Mod. 556. "charm, or sorcery, to tell where treasure is to be found, or where things lost or stolen may be found, (a) or to do any thing to the (a) See "Theftbote," post. "intent to provoke any person to unlawful love, or to hurt or destroy any person in his or her body, though the same be not "effected." 66 66 SECONDLY," Such as shall use any witchcraft, &c. whereby Sum. 8. 66 any cattle or goods of any person shall be destroyed, wasted or 3 Inst. 46. impaired:" but those who take upon them to do this, were not within the act unless they actually did it. (b) (b) At Hertford assizes on the 4th March, 1712, one Jane Wenham received sentence of death under this statute, on a conviction for witchcraft, on the prosecution of the Rev. Mr. Bragge. 66 Sect. 6. But this statute of James is repealed by 9 Geo. 2. c. 5. which enacts, "That no proceeding shall be had against any per"son for witchcraft, sorcery, inchantment, or conjuration, or for charging another with such crimes; and that whoever shall pre"tend to exercise those arts, or shall undertake to tell fortunes, "or pretend by crafty science to discover stolen goods, shall be "imprisoned for one year, stand four times in the pillory, and find "sureties as the court shall think fit." Of Sodomy. All unnatural carnal copulations,' whether with man or beast, seem to come under the notion of sodomy, which was felony by the ancient common law, and punished, according to some authors, with burning; according to others, with burning alive.(1) Sect. 1. But at this day, by force of 25 Hen. 8. c. 6, and 5 Eliz. c. 17. this offence is punished in the same manner as other felonies which are excluded from clergy.(2) 12 Co. 36, 37. 3 Inst. 58. Sect. 2. In every indictment for this offence there must be the 12 Co. 36, 37. words rem habuit veneream, et carnaliter cognovit; and conse- 3 Inst. 58. quently some kind of penetration, and also of emission, must be Qu. 1Hale, 628. proved; Sed vide 1 (1) According to Britton, b. 6. c. 9. these unnatural offenders were, on conviction, committed to the flames. Fleta, b. 6. c. 35. buries them alive within the earth. And the Mirror, c. 1. s. 14. consigns them, with just indignation, to shameful and eternal oblivion. (2) Sir Mathew Hale, 1 H. P. C. 670, says, 670. St. Tr. 388. those that are present aiding and abetting are all principals; the statute making it felony generally: that there are or may be accessaries before and after, as in the case of rape; but although none of the principals are admitted to their clergy, yet accessaries before and after are not excluded from clergy. Duffey's case, proved; but any the least degree is sufficient, and emission is primâ facie an evidence of penetration. 1721. Hollis's case, at Lincoln, 1781. Prentice's case, Admiralty Sess. 1786, Crown Circuit Assistant, 17, 18; and the case of Rex v. Wiseman, Fortescue's Rep. 91 to 98. 3 Bac. Ab. 38. 1 Vent. 293. 3 Keb. 607. 2 Str. 834. 4 Comm. 59. 1 Black. 395, 11 Mod. 142. Str. 416. 788. 834. Offences more immediately against God not capital, are by the common law, Sect. 1. FIRST, All blasphemies against God; as denying his being or providence, and all contumelious reproaches of Jesus Christ. Sect. 2. SECONDLY, All profane scoffing at the Holy Scripture, or exposing any part thereof to contempt or ridicule. 1 Burn, 225. 4 Comm. 41. 3 Burn, E. L. 201. Fitzg. 65. 1 Str. Tr. 802. 1 Keb. 620. Dalt. 124. 1 Sid. 168. Sect. 3. THIRDLY, Impostors in religion; as falsely pretending to extraordinary commissions from God, and terrifying or abusing the people with false denunciations of judgments, &c. Sect. 4. FOURTHLY, All open lewdness grossly scandalous; such as was that of those persons who exposed themselves naked See the case of to the people in a balcony in Covent Garden with most abominable circumstances. R. v. Read. Fort. 98. 2 R. Abr. 184. Sect. 5. FIFTHLY, Seditious words in derogation of the estaC. Jac. 44. 421. blished religion are indictable, as tending to a breach of the peace; as these, "Your religion is a new religion;" and, "Preaching is but prattling, and prayer once a-day is more edifying." 1 Ven. 293. 3 Keb. 621. Str. 776. 788. Fairs shall not be held on a Sunday or other holyday, except in harvest time. Sect. 6. SIXTHLY, Offences of this nature, because they tend to subvert all religion or morality, which are the foundation of government, are punishable by the temporal judges with fine and imprisonment, and also such corporal infamous punishment as to the court in discretion shall seem meet, according to the heinousness of the crime. Offences, by statute, not capital, more immediately against God, are either such as are against RELIGION IN GENERAL, or such as are against THE ESTABLISHED CHURCH. Offences against RELIGION IN GENERAL are of several kinds. Sect. 1. By 27 Hen. 6. c. 5. it is ordained, " That all manner "of fairs and markets held upon the high and principal feasts, as " in the feast of the Ascension of our Lord; in the day of Corpus Christi; in the day of Whitsunday; in Trinity Sunday, with "other Sundays; and also in the high feast of the Assumption of "our blessed Lady; the day of All Saints; and on Good Friday; shall clearly cease from all shewing of any goods or mer"chandizes (necessary victual only except), upon pain of for"feiture of all the goods aforesaid so shewed, to the lord of the "franchise or liberty where such goods, contrary to this ordi 66 66 nance, nance, be or shall be shewed (the four Sundays in harvest except)." shall not expose their goods to Sect. 2. By 1 Jac. 1. c. 22. s. 28. “ No person or persons Shoemakers "who shall occupy the mystery or occupation of a cordwainer or "shoemaker shall shew, to the intent to put to sale, any shoes, sell on a Sun"boots, buskins, startops, slippers or pantouffles, upon the day. Sunday, upon pain of forfeiture for every pair made, sold, "shewed, or put to sale, three shillings and four-pence, and the 'just and full value of the same." or games, shall not be practised on Sundays. Sect. 3. By 3 Car. 1. c. 1. " There shall be no meetings, as- Pastimes,sports, semblies, or concourse of people out of their own parishes on "the Lord's day, within the realm of England, or any the domi"nions thereof, for any sports and pastimes whatsoever: nor any bear-baiting, bull-baiting, interludes, common plays, or other "unlawful exercises and pastimes, used by any person or persons within their own parishes: and every person or persons offending in any these premises, shall forfeit for every offence "three shillings and four-pence, the same to be employed and "converted to the use of the poor of the parish where such "offence shall be committed; and any one justice of the peace of "the county, or the chief officer or officers of any city, borough, or town corporate, where such offence shall be committed, upon his or their view, or confession of the party, or proof of any one or more witness, by oath, shall find any person "offending in the premises, the said justice or chief officer or "officers shall give warrant, under his or their hand and seal, to "the constables and churchwardens of the parish or parishes "where such offence shall be committed, to levy the said penalty "so to be assessed, by way of distress and sale of " the goods of "every such offender, and in default of such distress the party "offending shall be set publicly in the stocks by the space of "three hours." 66 + Sect. 4. It is said that this statute does not prohibit, but 4 Comm. 63. rather impliedly allows, any innocent recreation or amusement to persons within their respective parishes, even on the Lord's day, after divine service is over. Sect. 5. By 3 Car. 1. c. 2. s. 2. " If any butcher, by himself, Butchers shall or any other for him, by his privity or consent, shall kill or sell not sell meat on "any victual upon the Lord's day, every such butcher shall for- Sundays. "feit and lose for every such offence the sum of six shillings and + Sect. 6. The selling meat on a Sunday was no offence at common law, and therefore an indictment for this offence must conclude contra formum statuti. But if the offender keep open shop, 1 Stra. 702. the usual method is to indict at the sessions for the nusance. Cro. C. C. 372. Sect. 7. By 29 Car. 2. c. 7. it is enacted, "That no trades- No worldly la"man, artificer, workman, labourer, or other person whatsoever, bour, business, or calling, shall "shall do or exercise any worldly labour, business, or work at be exercised on "their ordinary callings upon the Lord's day, or any part thereof Sunday, except " (works of necessity and charity only excepted;) and that every ty or for charity. person, being of the age of fourteen years or upwards, offend- 2 Burn, 787. it be of necessi 11 Mod. 114. Cowp. 640. 2 Burr. 788. Crepps v. Dur- 10 Mod. 26. Brook v. Miliken, 3 Term Rep. 509. Mackarel may "ing in the premises, shall, for every such offence, forfeit the 66 + Sect. 8. It is said to have been agreed by the court, that an indictment will lie on this statute against a baker for baking loaves of bread or rolls on the Lord's day in the usual way of his trade, because that is not a work of necessity; but that it will not lie for baking puddings, pies, or meat for dinners; for the sabbath is more likely to be generally observed by a baker staying at home to bake the dinners of a number of families, than by his going to church, and those families or their servants staying at home to dress dinners for themselves; and this sort of exercise of a trade not only falls within the exception of" works of necessity " and charity," but is also within the proviso, as being for this purpose a cook's-shop; it being as reasonable that a baker should bake for the poor, as that a cook should roast or boil for them. Sect. 9. It has also been determined, that a person cannot be convicted of committing more than one offence on the same day under this statute; and therefore if a justice proceed to convict an offender in more than one penalty for the same day, it is an excess of judicature, for which an action will lie before the convictions are quashed. + Sect. 10. But perhaps this must be understood only where the baking consists of one entire and continued act; for it has been determined on the statute 12 Geo. 2. c. 36. which inflicts a penalty on any person who shall sell English books piratically printed abroad, that two penalties may be incurred on the same day, if the acts of sale be distinct. Sect. 11. By 10 and 11 Will. 3. c. 24. s. 14. for regulating the be sold on Sun- sale of fish at Billingsgate market, “the act shall not be construed day. "to |