fuffer any punishment for committing a bare theft (8) in company with, or by coercion of, her husband. (8) This exemption extends to burglary, Kely 31. F. Cor. 199. and feemingly to robbery, as an offence of a nature certainly not more heinous. The reafon of this rule is faid to be "because the "wife cannot know what property her husband may claim in the goods taken." 10 Mod. 63. If this be the true principle, the cafes of robbery and burglary are in some measure distinguishable upon this fubject; for in burglary, the abfence or prefence of the party is immaterial, but in robbery, prefence is an unavoidable and effential ingredient to the crime, and affords to the wife an opportunity of judging in what fort of right the goods are taken.-Vide, infra. fe&t. 11. 3 Inft. 108. Sum. 65. 1 Hale 44. Sect. 10. Neither shall she be deemed acceflary to a felony for receiving her husband, who has been guilty of it, as her husband shall be for receiving her. (9) (9) Nor a principal, though the husband's offence be treason, for she is fub poteftate viri, and bound to receive him. Neither is the affected by receiving, jointly with her husband, any other offender. 1 Hale, 48. For the cannot be admitted as a witnefs to difcover even collaterally, her husband's guilt. Brownl. 47. Dalt. 540. Hale 301. O. B. 1785. p. 181. Sum. 65, 66. F. Cor. 199. Sect. II. But if the commit a theft of her own voluntary act, or by the bare command of her husband, or be guilty of treafon, murder, or robbery, in company with, or by coer2 B. c. 29, 134 cion, of her husband, (10) he is punishable as much as if she were fole. 383. I Hale 45 516. 2 Comm. c. 29. Lucas 63. Kely 31. S. P. C. 10. 19. 142. 4 Comm. 29. Vide O. B. 1785. No. 3. (10) Or receive ftolen goods of her own feparate act, without the privity of her husband, or, if he, knowing thereof, leave the house and forfake her company; the alone shall be guilty, as acceffary. 22 Afs. 40. Dalt. 157. for the coercion which is fuppofed to be conveyed by the command or prefence of the husband is only a prefumption of law, and like other prefumptions may be repelled. 1 Hale, 516.-In treafon, no plea of coverture shall excufe the wife; no prefumption of her husband's coercion fhall extenuate her guilt, for he has no right to that obedience from a wife, which he, as a subject, has forgotten to pay. In murder alfo this privilege is denied, becaufe the offence is repugnant to the laws of nature, which thall never be contravened by the refinements of civil fociety. 4 Conim. 29. 2 Roll. 39. 3 Kcb. 34. Sid. 410. Hob. 95. Salk. 384. g Co. 72, 1 Keb. 634. Sec. 12. Alfo a wife may be indicted together with her hufband, and condemned to the pillory with him for keeping a bawdy-house; for this is an offence as to the government of the house, in which the wife has a principal fhare; and also fuch an offence as may generally be prefumed to be managed by the intrigues of her fex. Sect. 13. And generally a feme covert fhall anfwer as much as if the were fole, for any offence, not capital, against the common law, or ftatute, (and if it be of fuch a nature that it may be committed by her alone, without the concurrence of the husband) fhe may be punished for it without the husband, by way of indictment, which being a proceeding grounded merely on the breach of the law, the hufband fhall not be included in it for an offence to which he is no way privy. And if a woman bring a malicious appeal for the death of her husband, known by her to be alive, fhe may be B. Imp. 103. imprisoned for the falfe appeal, till fhe make fine to the king, SH. 4. 17. and and the husband fhall go at large. But if a wife incur the Poft. p. 17. 18. forfeiture of a penal statute, the husband may be made a party Bac. Ab. 294. 1. 31. 39. to an action or information for the fame, (as he may be gene- Noy, 103. rally to any fuit for a cause of action given by his wife) and Sav. 25. shall be liable to answer what shall be recovered thereon. (11) I Roll. 93. 233. (11) She may be indicted alone for a riot. Dalt. 447. For felling gin against the injunctions of the 9 Geo. 2. c. 23. Str. 1123. For recufancy. Str. 1120. Hob. 96. 1 Sid. 410. 11 Co. 64. Sav. 25. For being a common fcold, communis rixatrix. 6 Mo. 213. 239. For affault and battery. Salk. 384. For foreftalling. Sid. 410. For ufury. Skin. 348. For bar'ratry. Bac. Ab. 280. Con. Roll. 39. Poit. 243. For a forcibly entry. Poft. 147. For keeping a gaming house. 10 Mod. 335. Keeping a bawdyhoufe, if the hufband does not live with her. 1 Bac. Abr. 294. For trefpals or flander. Keilw. 61. R. Abr. 251. Leon. 122. C. Car. 376. Sect. 14. Neither a fon nor a fervant are excufed the Sum. 66. Moor 813. commiffion of any crime whether capital or not capital, by the Dalt. 04. command or coercion of the father or mafter. 504. 1 Hale 44. THERE are other exemptions from punishment, than thofe which have been mentioned in this chapter. First, By cafualty and misfortune; thus if in the execution of a lawful act, an unintended death or maim eniue, the party ftands excufed from all guilt. B. Cor. 229. 22 Aff. 71. 1 Hale, 39. Kel. 123. 4 Co. 124. 4 Com. 27. Secondly, by ignorance or mistake; as when a man intending to do a lawful act, does that which is unlawful. Jones, 15. C. Car. 538. But this must be an ignorance, or mistake in fact, and not in law, for ignorantia juris quod quifque tenetur fcire neminem excufat. Plow. 343. 1 Hale, 42. 4 Comm. 27.-Thirdly, By compulfion or neceffity; as where the act proceeds from the lawful coercion of another; or arifes from circumftances of unavoidable constraint; or the impulie of a juft and well grounded apprehenfion of death. 1 Hale, 50 54. Plow. 18. 3 Inft. 10. Brac. 16. Reg. 88. N. B. 177. 1 Comm. 131. 4 Comm. 30. And a thefe circumstances of accident, neceffity, or infirmity, must be fatisfactorily proved by the prifoner, unless they arife out of the evidence adduced against him. FoL 255. Ld. Ray. 1493. Str. 773. Hale, 34. CHAPTER THE SECOND. OF HERESY. FFENCES confidered in relation to the perfons 4 Comm. 41. against whom they are committed, are either,--Firft, Beccar. c. 8. fuch as are more immediately against God, or, Secondly, fuch as are more immediately againft man.-Offences more immediately against God, are either by common law or by ftatute. Thofe at common law are either capital or not capital. The capital offences of this nature are of three kinds: Herefy. Witchcraft. Sodomy.-Concerning Herefy, I fhall confider, 1. What it is. 2. By whom it is cognizable. 3. How it is punishable. 2 Burn. E. I Sect. 1. As to the first point, it feems, that among pro- 4 Comm. 44. teftants, herefy is taken to be a falfe opinion, repugnant to L. 258.—260. fome point of doctrine clearly revealed in fcripture, and ei- 1 Hale 383 to ther abfolutely effential to the Chriftian faith, or at least of 410. most high importance. B 3 3 Inst. 40. Sum. 3. 4. 3 Inft. 40. Sum. 3. B. Herefy paflin. R. Abr. 226. F. N.. B. 269. Sum. 5. Gib. 401. 410. 93. 27 H. 8. 14. 5 Co. 58. Sum. 4. Hob. 236. 3 Inf. 39. 12 Rep. 56. Finch. 219. * Salk. 135: 1 Hale, 399. 3 Inst. 42. Sum. 4. 1 Roll. 110. 2 Bulft. 300. Co. 5. i And 197 Sect. 2. But it is impoffible to fet down all the particular errors, which may properly be called heretical, concerning which there are, and always have been fo many intricate difputes. However, the firft of Elizabeth, which erected the high-commiffion-court, having reftrained the fame from adjudging any points to be heretical, which have not been determined to be fuch, either by fcripture, or by fome one of the four first general councils, or by fome other council, by exprefs words of fcripture, or by the parliament, with the aflent of the convocation; it has been fince generally holden, that these rules will be good directions to ecclefiaftical courts in relation to heresy. Set. 3. As to the fecond point, viz. By whom herefy is cognizable, it is certain, that the convocation may declare what opinions are heretical: but it hath been queftioned of late, whether they have power at this day to convene and convict the heretick. Sect. 4. However it is agreed, that every bishop may convict perfons of herefy within his own diocese, and proceed by church-cenfures against thofe who fhall be convicted; but it is faid, that no fpiritual judge, who is not a bishop, hath this power; and it has been queftioned, whether a conviction before the ordinary were a fufficient foundation whereon to ground the writ de hæretico comburendo, as it is agreed that a conviction before the convocation was. Sect. 5. By 24. Hen. 8. c. 9. the arch bishop of either province may cite any perfon before him for herefy, if the immediate ordinary either confent thereto, or do not his duty in punishing the fame. Sect. 6. But it is certain, that a man cannot be proceeded against at the common law, in a temporal court, merely for herefy; yet if in maintenance of his errors he fet up conventicles and raise factions, which may tend to the disturbance of the publick peace, it seemeth that he may in this refpect be fined and imprisoned, upon an indictment, &c. at the common law. Sect. 7. Alfo a temporal judge may incidently take knowledge whether a tenet be heretical or not; as where one was committed by force of 2 H. 4. c. 5. for faying, that he was not bound by the law of God to pay tithes to the curate; and another for faying, that though he was excomunicated before man, yet he was not fo before God. The temporal courts, on an habeas corpus in the firft cafe, and an *action of falle imprisonment in the other, adjudged neither of the points to be herefy within that ftatute; for the king's courts will examine all things which are ordained by ftatute. Sect. 8. Alfo in a quare impedit, if the bishop plead that he refused the clerk for Herefy, it seems that he muft fet forth the Hale 407. the particular point, that it may appear to be heretical, to the Leon 192. court wherein the action is brought, which having conulance 3 Lev. 314. of the original caufe, muft by confequence have a power as to all incidental matters neceffàry for the determination of it; and, without knowing the very point alledged 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. But if a man be proceeded againft as an heretick 5 Co. 88. in the fpiritual court pro falute anima, and think himself ag- 27 H. 8. 14. grieved, his proper remedy feems to be to bring his appeal to a higher ecclefiaftical court, and not to move for a prohibition from a temporal one, which, as it feems to be agreed, cannot regularly determine or discuss what fhall be called herefy. & St. 1. 3 Set. 10. As to the third point, viz. How herefy is F. N. B. 269. punishable, there is no doubt but that at common law one 3 Inft. 43. Sum. 5. convicted thereof, and refufing to abjure it, or falling into Dr. it again after he had abjured it, might be burnt by force of the c. 29. writ, de hæretico comburendo, which was grantable out of Sum. s. chancery upon a certificate of fuch conviction; but it is faid, that he forfeited neither lands nor goods, because the proceedings against him were only pro falute anime. I Sect. 11. But at this day the faid writ de hæretico comburendo is abolished by 29 Car. 2. c. 9. And all the old ftatutes which give a power to arrest or imprifon perfons for herefy, Sum. 4, 5. or introduced any forfeiture on that account are repealed. Gilb. 353Yet by the common law, an obftinate heretick being excom- 12 Co. 440 municate is still liable to be imprifoned by force of the writ, de excommunicato capiendo, till he makes fatisfaction to the 1 Salk. 293. church. And by 9 & 10 W. 3. c. 32. "If any perfon B. R. H. 314. "having been educated in, or having made profeffion of the "Chriftian religion within this realm, fhall be convicted "in any of the courts of Westminster, or at the affizes, of "denying any one of the perfons in the holy Trinity to be "God, or of maintaining that there are more Gods than one, 66 or of denying the truth of the Chriftian religion, or the "divine authority of the holy fcriptures, he fhall for the "firft offence be adjudged uncapable of any office; and for "the fecond, fhall be difabled to fue any action, or to be a guardian, executor or adminiftrator; or to take by any "legacy or deed of gift, or to bear any office civil or mili tary, or benefice ecclefiaftical, for ever, and fall also 3 Jac. 1.c.11. "fuffer imprisonment for three years, without bail or "mainprize, from the time of fuch conviction." 3 Inft. 44. Dalt. p. 513. 514. 3 Inft. 44. S. P. C. 38. Hale 383. 45 Ed. 3. 17. B. Cor. 15. 2 Keb. 719. By 33 H. c. 8. witchcraft and forcery were made fe lony, without clergy.-But acceffaries after were intitled, 1 Hale 7. Sum. 6. 7. 4 Inst. 45. con. Jon. 143 CHAPTER THE THIRD. OF WITCHRAFT, F offenders of this nature there are faid to be three kinds. -First, conjurers, who by force of certain magick words endeavour to raise the devil, and compel him to execute their commands.-Secondly, witches, who by way of friendly conference are said to bargain with an evil fpirit to do what they defire of him.-Thirdly, forcerers or charmers, who by the ufe of certain fuperftitious forms of words, or by means of images, or other odd reprefentations of perfons or things, &c. are faid to produce ftrange effects above the ordinary courfe of nature. Sect. 2. All these were anciently punished in the fame manner as hereticks, by the writ de hæretico comburendo after a fentence in the ecclefiaftical court, and a relapfe. And it is faid alfo, 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 forcery, was brought into the king's bench; but there being no indictment against him, he was fworn that from thenceforth he would not be a forcerer, and then delivered from prifon, and the head was burnt at his charge: but this method feems to be obfolete at this day. Seft. 4. By 1. Jac. 1. c. 12. (the only law now in force against thefe offenders) they are divided into two degrees and thofe in the first degree, and their acceffaries before, fhall fuffer as felons without clergy. Of these there are the four following fpecies. First, Such as fhall ufe any invocation or conjuration of any evil fpirit: and fuch feem clearly to be within the law, tho' no fpirit do actually appear.-Secondly, Such as confult, covenant with, entertain, employ, feed, or reward any evil fpirit to any intent: and these are agreed to be within the ftatute, though nothing farther be done upon fuch confultation, &c.-Thirdly, Such as take up any dead perfon's body, or any part thereof, to be used in any manner of witchcraft: and thefe are alfo clearly within the ftatute, though they do not actually fo ufe it.-Fourthly, Such as exercise any witchcraft, inchantment, charm, or forcery, whereby any person shall be killed, destroyed, confumed, or lamed in his or her body, or any part thereof. But none are within this branch who do not actually effect fuch mifchief. Sect. |