toleration. While the civil arm was cautious in punishing the religious opinions of the people, no power of a fecular nature was delegated to the church for that purpofe. They could only inflict the fentence of excommunication, which fecluded a perfon for mifconduct, from the communion of a religious congregation, but fubjected him to no civil inconvenience whatever.

VI. Breach of Sabbath confifts in a variety of acts, which are punishable by ftatute. Non attendance on divine worship in fome lawful congregation, fubjects a perfon to a fine of three fhillings: but this law has grown obsolete.

No perfon may keep open his fhop, flore, ware-house, or work house, or do any manner of fecular business, (works of neceffity and mercy excepted,) nor be prefent at any concert of mofic, dancing, or any public diversion, or fhow, or entertainment, nor afe any game, sport, play, or recreation, on any part of the Lord's day, upon a penalty not exceeding twenty, nor lefs than ten fhillings. No traveller, drover, waggoner, or teamfter, or their fervants, may travel on that day, (except for necellity or charity,) under the fame penalty. Companies may not meet in the streets, or elsewhere, nor any perfons go from home, unless to attend public worship or fome work of seceflity and mercy, upon the penalty of five fhillings.

No tavern-keeper may entertain, or fuffer any of the inhabitants of the town, or others, not strangers or lodgers, to be in their houfes or dependencies, drinking or idly spending their time, on Saturday night after fun-fet, on Sunday, or the evening following, on penalty of five fhillings, and every person so spending his time to forfeit the faine fum. Informations must be made within a month. No warning or notification of any fecular business may be fixed on a door of any meeting-houfe to remain there on any day of public worship, upon penalty of five fhillings, to be paid by the perfon putting it up, and grandjurors, constables and tything-men are directed to pull them down. No veffel may unneceffarily depart from any harbour, port, creek or river, nor pafs by any town, where public worship is maintained, nor weight

anchor

/ Statutes, 213, 214.

anchor within two miles, unless to get nearer thereto, on the Lord's day, at any time between the morning light, and the fet ting fun, upon penalty of thirty fhillings to be paid by the maller. Any person behaving rudely or indecently within the house, where any congregation are met for public worship, may be fined not more than forty, nor lefs than five fhillings. The fervice of a civil procefs on the Lord's day is void, and the officer incurs a penalty of ten fhillings.

All fines impofed for a breach of this act, on minors, fhall be paid by their parents, guardians, or mafters, if any be, otherwise fuch minors are to be disposed of in service to answer the fame, and upon refufal and neglect to pay fuch fine and coft, the offender may be committed, unless he be a minor, in which cafe execution for the fine and coft, fhall iffue againft his parent, guardian, or mafter, at the end of a month, after conviction. No appeal is al lowed upon a conviction of any offence in this flatute.

The ftatute law to prevent the disturbances of public worship, has provided, that if any perfon or perfons, either on the Lord's day, or any other day, fhall wilfully interrupt, or disturb any af fembly of people, met for the public worship of God, within the place of their affembling, or out of it, each perfon fo offending, fhall pay a fine not exceeding ten pounds, nor less than twenty hillings and that in cafe the offender is a minor, the fine is to be collected as aforefaid, and if not, then on neglect or refufal, he may be committed.

There feems to be an inaccuracy in this ftatute. After the above direction refpecting the payment of fines, there is a claufe, that where there is a conviction for any profanation of the Lord's day, or any disturbance of public worship, if the offender neglect or refufe to pay the fine, or prefent eftate, that he may be whipped, not exceeding twenty ftripes, by order of the court before whom he was convicted. The first paragraph, directs on neglect to pay, that the offender be committed, in cafe of all fines impofed for a breach of this law, and the laft directs, that in fuch cases

he

he be whipped. Thefe paragraphs being contradictory, the courts

muft determine which is void.

It is directed by ftatute, that where children or fervants are under the age of fourteen, on conviction of profanation, or difturbance, they fhall be corrected by their guardians, parents, or masters, in prefence of fome officer, if the authority fo appoint, and in no other way, and if they neglect, or refufe to correct, they fhall incur a penalty of three fhillings.

VII. The fwearing rafhly, vainly, or profanely, by the holy name of God, or any other oath, or the finful and wicked curfing any perfon, fubjects the offender for every offence, to a fine of fix fhillings, and if he be unable or refuse to pay, he fhall be fet in the ftocks, not exceeding three hours, nor lefs than one, for one offence, and pay coft of profecution.

CHAPTER EIGHTH,

OF CRIMES AGAINST CHASTITY AND PUBLIC DECENCY.

THESE crimes are, I. Adultery. II. Inceft. III. Polygamy.

IV. Fornication. V. Lacivious Carriage and Behaviour. VI. A Man being found in a bed with another's Wife. Aud, VII. Public Indecency.

I. Adultery is the carnal connexion of a man with another's wife. The man may be either married or fingle; but the woman must be married: for the effence of the crime, is the adulteration of the offspring, the spurioufnefs of the iffue. If a married man has carnal knowledge of a fingle woman, it is not adultery, but fornication. This diftinction is founded in nature. The common opinion of mankind declares, that it is a very different and much more heinous crime for a woman that is married, to have criminal converfation with a fingle man, than for a married man with a fingle woman. A married woman that fubmits to the enbraces of any man but her husband, does by that act, alienate her affections, deprave her fentiments, and expofe him to the greater

of

m Statutes, 240.

of all misfortunes, an uncertainty with refpect to his offspring, or to fupport the children of another. But it is poffible, tho hardly probable, that a married man may be concerned in an intrigue with a girl, without impairing his conjugal affection, and at any rate he does not fubject his wife, to maintain the children of another, nor does that act produce fuch total depravity of moral character in a man, as in a woman: for when a female once breaks over the bounds of decency and virtue, and becomes abandoned, fhe is capable of going all lengths in iniquity: but there are frequent inftances of men, who difregard the principles of chastity, but in other refpects conduct with propriety.

It must however be granted, that it is a crime of a much blacker nature for a married than a fingle man, to commit fornication. For he not only does an injury to his wife, but brings difgrace upon his family. It would therefore be proper, that a married man fhould be punished with greater feverity for committing fornication, than a fingle man: but with lefs feverity than in the cafe of adultery; for this would be proportioning the punishment to the crime, according to its influence on fociety, which is the only ftandard of human punishments.

The punishment for adultery is difcretionary whipping, branding in the forehead with the letter A, and wearing a halter about the neck, on the out fide of the garments fo as to be visible, On being found without the halter, on information and proof made before an affiftant or juftice of the peace, he may order them to be whipped not exceeding thirty ftripes.

• If a man and woman, who have been divorced shall again cobabit together as man and wife, they fhall be punished as adulterers.

It has been determined, that the fact of a man and woman being found in bed together, naked, is fuch prefumptive proof of the commiflion of the crime of adultery, as will juftify a conviction, tho the fame evidence would have convicted the man of the offence of being found in bed with another's wife, if he had been profecuted for that offence.

II. Incest

"Statues' S

Ibid. 137. Kirb. 87.

II. Inceft is the marriage or carnal copulation between rela tions within certain degrees of confanguinity and affinity, prohibi ted by ftatute. This prohibition is extended to all degrees in the afcending and defcending line, and to the third degree in the collateral line. Formerly the law prohibited a man to marry his wife's fifter, but that law has lately been repealed. The punishment is, that the offenders fhall be set on the gallows for the space of one hour, with a rope round their necks, and the other end over the gallows. On the way from thence to the common goal, they fhall be feverely whipped, not exceeding forty stripes; they shall forever wear the capital letter I, two inches long, and of propor tionable bignefs, cut out of cloth, of a contrary colour to their clothes, and fewed upon the upper garments, on the out fide of the arm, or on the back in open view. If they are found without fuch letter worn as aforefaid, they may by warrant from an affistant or justice of the peace, be apprehended and ordered to be publicly whipped, not exceeding fifteen stripes, and so as often as they are guilty. The iffue of fuch marriage or carnal copulation, is difabled from inheriting or taking any eftate, being generally named in a deed or will, by the father or mother, and the marriage is declared to be void. If the parties fhall afterwards converse together as man and wife, or dwell together in the fame house, they fhall be punished as adulterers. The fuperior court may affign to the woman fo feparated, fuch reasonable part of her late husband's estate, as in their difcretion the circumstances of it will admit, not exceeding one third.

III. Polygamy is where a married perfon marries another, the former or other husband or wife being living: or where fuch perfons continue to live together when thus married. The pun ishment is the fame as in cafes of adultery, and the marriage void. If either party at time of marriage, be ignorant that the other is married, and separate immediately on difcovering it, that party will not be guilty of any crime: but a continuance to live together after knowing the fact, will be criminal. The offenders are to be tried in the county where apprehended.

This statute does not extend to thofe perfons, whofe husband of wife

U u

Statutes, 137,