CHAPTER ILL.

OFFENSES AGAINST RELIGION.

ON what grounds does the state arrogate to itself the right of punishing offenses against religion? Certainly not as the minister of God. The state has observed that certain acts or courses of conduct, which are forbidden by religion, are also productive of disorder and mischief to the community. It has therefore provided for the punishment of those that offend, not in consequence of the breach of the law of God, but as the result of the breach of the law of the country. That the state does not consider itself under an obligation to enforce the law of morality, as such, is obvious from the fact that mere lying and other acts of immorality are not within the pale of the criminal law. This violation of human law is the true ground of interference, though in some of the offenses we shall notice it is impossible to shut our eyes to the fact that in early times the legislators did to some extent consider themselves authorized to punish mere irreligion.

APOSTACY-BLASPHEMY.

Apostacy, or the total renunciation of Christianity, was for a long period punished by the ecclesiastical courts only, at one time the punishment they awarded being death. Later, however, the civil power thought it necessary to interfere," by not admitting those miscreants to the privilege of society who maintained such principles as destroyed all moral obligations."(f) It was provided that if any one educated in, or having made profession of the Christian religion, by writing, printing, teaching, or advised speaking, maintains that there are more Gods than one, or denies the Christian religion to be true, or the Holy Scripture to be

(f) 4 Bl. 44.

of divine authority, for the second offense, besides being incapable of bringing an action, or being guardian, executor, legatee, or grantee, must suffer imprisonment for three years without bail. (g) There shall be no prosecution for such words spoken, unless information of such words be given on oath before a justice within four days after they are spoken, and the prosecution be within three months after such information. (h) The offender is to be discharged, if, within four months after his first conviction, he renounces his error. (i)

Blasphemy is also punishable at common law by fine and imprisonment. Christianity, as it is said, is a part of the law of England, and a gross outrage against it is to be punished by the state. The offenses include not only the blasphemous libels by one who has been attached to the Christian religion and has apostatized, as to which we have seen particular provisions have been made, but also denying, whether orally or by writing, the being or providence of the Almighty, contumelious reproaches of our Lord and Savior Christ, profane scoffing at the Holy Scriptures, or exposing any part thereof to contempt or ridicule. (k) The libel, to be blasphemous, must consist not in an honest denial of the truths of the Christian religion, but in a willful intention to pervert, insult, and mislead others by means of licentious and contumelious abuse applied to sacred subjects. (1) But the disputes of learned men upon particular points of religion are not punished as blasphemy. (m) It remains merely to add that the law is rarely put in force, and then only because the libel is of a most extravagant

nature.

DISTURBING PUBLIC WORSHIP.

Any person willfully and maliciously or contemptuously disturbing any lawful meeting of persons assembled for public worship, or molesting the person officiating or any of those assembled, upon proof by two or more credible witnesses before a magistrate, must answer for such offense at the sessions, and upon conviction is fined forty pounds. (n)

(g) 9 and 10 Wm. 3, c. 32, ? 1; in the Rev. Stat., c. 35.

(h) Ibid., § 2.

(k) v. 1 Russ. 332, 333.

(m) For cases v. Arch. 814.

5

(i) Ibid., 2 3

(1) Reg. v. Ramsay, 48 L. T. N. S. 73.

(n) 52 Geo. 3, c. 155, ? 12.

Riotous, violent, or indecent behavior is also punishable on summary conviction. (n)

WITCHCRAFT, SORCERY, ETC.

Punishment (generally death) for these supposed evil practices belonged to a state of society different from ours. It is only about a century and a half, however, since an act was passed to the effect that prosecutions for such practices should cease; at the same time making punishable by imprisonment persons pretending to use witchcraft, tell fortunes, or discover stolen goods by skill in any occult or crafty science.(0) By a later statute, persons using any subtle craft, means, or device, by palmistry, or otherwise to deceive her majesty's subjects, are dealt with in their true character, namely, as rogues and vagabonds, and are punishable by imprisonment.(p)

Under this head may be noticed the case of religious impostors, who are punishable by fine and imprisonment. Two offenses dealt with by the magistrates may be noticed here briefly:

Profane swearing is punishable on summary conviction by fine.(q)

Profanation of the Sabbath is an offense which has been brought into prominence through recent prosecutions. The statute of Charles II. provides that no person may do any work of his ordinary calling upon the Lord's day, works of necessity and charity only excepted, under penalty of five shillings. Nor may any one expose to sale any wares, on penalty of forfeiting his goods; nor may drovers, etc., travel, under a penalty of forty shillings.(r) But no prosecution for such offense may be commenced without the consent of the chief officer of the district, or of two justices, or of a stipendiary magistrate.(s)

Places of amusement, debate, etc., open on Sunday, admission to which is paid for, are to be deemed disorderly

(n) v. 23 and 24 Vict., c. 32, 2.

(p) 5 Geo. 4, c. 83, 4.

(r) 29 Car. 2, c. 7.

(0) 9 Geo. 2, c. 5.

(q) v. 19 Geo. 2. c. 21.

(s) 34 and 35 Vict., c. 87, continued by subsequent statutes.

houses, and as such may be suppressed, and the keeper fined or imprisoned.(t) The crown has, however, recently been empowered to remit the penalties.(u)

Certain practices, which were at one time criminally punishable, are now no longer so. Heresy, which consists not in a total denial of Christianity, but in an open denial of some of its principal doctrines, as held by the church, has been again subjected only to ecclesiastical correction, pro salute animæ.(x) Offenses against the national church, which are either negative, that is, non-conformity, or positive, by reviling its ordinances, etc.,(y) though nominally liable to legal penalties, are never practically made the subjects of prosecution.(z)

(t) 21 Geo. 3, c. 49; v. p. 119.

(u) 38 and 39 Vict., c. 80; v. Terry v. Brighton Aquarium Co., L. R. 10, Q. B. 306.

(x) 29 Car. 2, c. 9; 4 Bl. 49.

(2) As to Simony, v. 4 St. Bl. 212.

(y) v. I Edw. 6, c. 1; 1 Eliz., c. 2.

CHAPTER IV.

OFFENSES AGAINST PUBLIC JUSTICE.

In the first place, we shall treat of that class of offenses against public justice which consist in avoiding oneself, or assisting another to avoid, the punishments awarded by a court of justice.

Escape; Breach of Prison; Being at large during a term of Penal Servitude; Rescue; Obstructing Lawful Arrest.

ESCAPE.

The distinction between the first two and fourth offenses has been thus put: Where the liberation of the party is effected either by himself or others, without force, it is more properly called an escape; where it is effected by the party himself, with force, it is called prison breaking; where it is effected by others, with force, it is commonly termed a rescue. (a) We have to consider the cases of delinquents in three positions-the prisoner who escapes; the person who aids him; those in whose custody he is, whether of ficers of the law or private individuals.

If a prisoner escapes out of the custody of the constable, before he is imprisoned, he is punishable with fine and imprisonment.

Officers who, after an arrest, negligently allow a prisoner to escape are punishable with fine; if they voluntarily permit it, they are deemed guilty of the same offense, and are liable to the same punishment, as the prisoner who escapes from their custody; and this whether the latter has been committed to jail, or is only under bare arrest. But the officer can not be thus punished for a felony, until after the original offender has been convicted. Before the conviction, however, he may be fined and imprisoned as for a

(a) v. 1 Russ. 581; 1 Hale, P. C. 590.