For undoubtedly all persecution and oppression of weak consciences, on the score of religous persuasions, are highly unjustifiable upon every principle of natural reason, civil liberty, or sound religion. But care must be taken not to carry this indulgence into such extremes, as may [52] endanger the national church: there is always a difference to be made between toleration and establishment.

Non-conformists are of two sorts: first, such as absent themselves from divine worship in the established church, through total irreligion, and attend the service of no other persuasion. These by the statute of 1 Eliz. c. 2. 23 Eliz. c. 1. and 3 Jac. I. c. 4. forfeit one shilling to the poor every Lord's day they so absent themselves, and 207. to the king if they continue such default for a month together. And if they keep any inmate, thus irreligiously disposed, in their houses, they shall forfeit 107. per month.

The second species of non-conformists are those who offend through a mistaken or perverse zeal. Such were esteemed by our laws, enacted since the time of the Reformation, to be papists and protestant dissenters : both of which were supposed to be equally schismatics in not communicating with the national church; with this difference, that the papists divid. ed from it upon material, though erroneous, reasons; but many of the dissenters upon matters of indifference, or, in other words, upon no reason at all. Yet certainly our ancestors were mistaken in their plans of compulsion and intolerance. The sin of schism, as such, is by no means the object of temporal coercion and punishment. If through weakness of intellect, through misdirected piety, though perverseness and acerbity of temper, or (which is often the case) through a prospect of secular advantage in herding with a party; men quarrel with the ecclesiastical establishment, the civil magistrate has nothing to do with it, unless their tenets and practice are such as threaten ruin or disturbance to the state. He is bound indeed to protect the established church and, if this can be better effected, by admitting none but its genuine members to offices of trust and emolument, he is certainly at liberty so to do the disposal of offices being matter of favour and discretion. But, this point being once secured, all persecution for diversity of opinions, however ridiculous or absurd they may be, is contrary to every principle of sound policy and civil freedom. The names and subordination of the clergy, the posture of devotion, [53 ] the materials and colour of the minister's garment, the joining in a known or unknown form of prayer, and other matters of the same kind, must be left to the option of every man's private judgment.

With regard therefore to protestant dissenters, although the experience of their turbulent disposition in former times occasioned several disabilities and restrictions (which I shall not undertake to justify) to be laid upon them by abundance of statutes, (x) yet at length the legislature, with a spirit of true magnanimity, extended that indulgence to these sectaries, which they themselves, when in power, had held to be countenancing schism, and de nied to the church of England. (y) The penalties are conditionally suspended by the statute 1 W. & M. st. 1. c. 18. " for exempting their majes. "ties' protestant subjects dissenting from the church of England, from the "penalties of certain laws," commonly called the toleration act; which is confirmed by the statute 10 Ann. c. 2. and declares that neither the laws above mentioned, nor the statutes 1 Eliz. c. 2. § 14. 3 Jac. I. c. 4 & 5.

x 23 Eliz. c. 1. 29 Eliz. c. 6. 95 Eliz. C. 1. 22 Car. II. c. 1.

y The ordinance of 1645 (before cited) inflicted imprisonment for a year on the third offence, and pecuniary penalties on the former two in case of using the book of common prayer not only in a place of pubAic worship, but also in any private family.

nor any other penal laws made against popish recusants (except the test acts), shall extend to other dissenters, other than papists and such as deny the Trinity provided, 1. that they take the oaths of allegiance and supremacy (or make a similar affirmation being quakers) (2) and subscribe the declaration against popery; 2. that they repair to some congregation certified to and registered in the court of the bishop or archdeacon, or at the county sessions; 3. that the doors of such meeting-houses shall be unlocked, unbarred, and unbolted; in default of which the persons meeting there are still liable to all the penalties of the former acts. Dissenting teachers, in order to be exempted from the penalties of the statutes 13 & 14 Car. II. c. 4. 15 Car. II. c. 6. 17 Car. II. c. 2. and 22 Car. II. c. 1. are also to subscribe the articles of religion mentioned in the statute 13 Eliz. c. 12. (which only concern the confession of the true christian faith, and the doc

trine of the sacraments), with an express exception of those relat[54]ing to the government and powers of the church, and to infant bap

tism; or if they scruple subscribing the same, shall make and subscribe the declaration prescribed by statute 19 Geo. III. c. 44. professing themselves to be christians and protestants, and that they believe the scriptures to contain the revealed will of God, and to be the rule of doctrine and practice. Thus, though the crime of non-conformity is by no means uni. versally abrogated, it is suspended and ceases to exist with regard to these protestant dissenters, during their compliance with the conditions imposed by these acts; and, under these conditions, all persons, who will approve themselves no papists or oppugners of the Trinity, are left at full liberty to act as their consciences shall direct them, in the matter of religious worship. And if any person shall wilfully, maliciously, or contemptuously disturb any congregation, assembled in any church or permitted meetinghouse, or shall misuse any preacher or teacher there, he shall (by virtue of the same statute, 1 W. & M.) be bound over to the sessions of the peace, and forfeit twenty pounds. But by statute 5 Geo. I. c. 4. no mayor or principal magistrate must appear at any dissenting meeting with the ensigns of his office, (a) on pain of disability to hold that or any other office the legislature judging it a matter of propriety, that a mode of worship, set up in opposition to the national, when allowed to be exercised in peace, should be exercised also with decency, gratitude, and humility. Dissenters also, who subscribe the declaration of the act 19 Geo. III. are exempted (unless in the case of endowed schools, and colleges), from the penalties of the statutes 13 & 14 Car. II. c. 4. and 17 Car. II. c. 2. which prohibit (upon pain of fine and imprisonment) all persons from teaching school, unless they be licensed by the ordinary, and subscribe a declaration of conformity to the liturgy of the church, and reverently frequent divine service, established by the laws of this kingdom."

4

z See stat. 8 Geo. I. c. 6.

:

a Sir Humphrey Edwin, a lord mayor of London, had the imprudence soon after the toleration act to go toa presbyterian meeting-house in his formalities; which is alluded to by Dean Swift, in his tale of a tub, under the allegory of Jack getting on a great horse, and eating custard.

(6) To constitute an offence within this act, the party must come into the place of worship. See 5 T. R. 542. The enactment is repeated, without the words," come into," in the 52 Geo. III. c. 155. s. 12., which imposes the heavier penalty of 401. The act applies only where the thing is done wilfully and of purpose, maliciously to disturb the congregation, or misuse the preacher; per Abbott, C. J. 2 B. & C. 699. sed vid. Peake R. 132. 5 T. R. 542. Each defendant is liable to the penalty. 5 T. R. 542. An indictment found at sessions may be removed into K. B. by prosecutor before verdict. 5 T. R. 542. 4 M. & S. 503. Chitty. (7) The 13 & 14 Car. II. c. 1., 17 Car. II. c. 2. and 22 Car. II. c. 1., are repealed by the 52 Geo. III. c. 155. s. 1. by which all places of religious worship of protestants must be certified to

As to papists, what has been said of the protestant dissenters, would hold equally strong for a general toleration of them; provided their separation was founded only upon difference of opinion in religion, [ 55 ] and their principles did not also extend to a subversion of the civil government. If once they could be brought to renounce the supremacy of the pope, they might quietly enjoy their seven sacraments, their purgatory and auricular confession; their worship of reliques and images; nay, even their transubstantiation. But while they acknowledge a foreign power, superior to the sovereignty of the kingdom, they cannot complain if the laws of that kingdom will not treat them upon the footing of good subjects.

Let us therefore now take a view of the laws in force against the papists who may be divided into three classes, persons professing popery, popish recusants convict, and popish priests. 1. Persons professing the popish religion, besides the former penalties for not frequenting their parish church, are disabled from taking their lands either by descent or purchase, after eighteen years of age, until they renounce their errors: they must at the age of twenty-one register their estates before acquired, and all future conveyances and wills relating to them; they are incapable of presenting to any advowson, or granting to any other person any avoidance of the same; they may not keep or teach any school under pain of perpetual imprisonment; and if they willingly say or hear mass, they forfeit the one two hundred, the other one hundred marks, and each shall suffer a year's imprisonment. Thus much for persons, who, from the misfortune of family prejudices or otherwise, have conceived an unhappy attachment to the Romish church from their infancy, and publicly profess its errors. But if any evil industry is used to rivet these errors upon them, if any person sends another abroad to be educated in the popish religion, or to reside in any religious house abroad for that purpose, or contributes to their maintenance when there; both the sender, the sent, and the contributor, are disabled to sue in law or equity, to be executor or administrator to any person, to take any legacy or deed of gift, and to bear any office in the realm, and shall forfeit all their goods and chattels, and likewise all their real estate for life. And where these errors are also aggravated by apostasy, or perversion, where a person is reconciled to the see of Rome, or procures others to be reconciled, the offence amounts to high treason. 2. [56] Popish recusants, convicted in a court of law of not attending the

the bishop of the diocese, or the archdeacon of the archdeaconry, or to the justices at the general or quarter sessions, and shall be also registered, and a penalty to the amount of 201. and not less than 20s. may be inflicted for permitting meetings in places not so certified or registered. And by sect. 4. every person teaching or preaching at, or being in, such place so certified, is exempted from penalties, as a person who has taken the oath, and made the declaration prescribed by the 1 W. & M. st. 1. c. 18. or any act amending the same. By sect. 5. every one preaching or teaching at such place so certified, shall, when required by a magistrate, take and subscribe the oath and declaration specified in the 19 Geo. III. c. 44.; and if he refuse to take it, he must not teach or preach, under a penalty of not exceeding 107. nor less than 108.; but he need not go more than five miles from his place of residence to take such oath. And by sect. 6. such person may compel a justice to administer such oath to him, and to attest his subscription to such declaration, and give him a certificate thereof. By sect. 11. no place of public meeting for religious worship must have the doors fastened, so as to prevent persons entering therein during the time of such meeting, under a penalty to the teacher, of not exceeding 20%. nor less than 10s. By sect. 13. the act is not to affect the celebration of divine service, according to the rights of the church of England and Ireland, by ministers of such church, in places before then used for that purpose, or licensed or consecrated by any person so to do, nor affect the jurisdiction of bishops, or others exercising lawful authority in the church, over the said church, according to the rules and discipline of the saine, and to the laws of the realm. And by sect. 14. the act is not to extend to quakers, nor to meetings convened by them, or in any manner to affect any act relating to them, except those expressly above repealed. Chitty.

service of the church of England, are subject to the following disabilities, penalties, and forfeitures, over and above those before mentioned. They are considered as persons excommunicated; they can hold no office or employment; they must not keep arms in their houses, but the same may be seized by the justices of the peace; they may not come within ten miles of London, on pain of 1007.; they can bring no action at law, or suit in equity; they are not permitted to travel above five miles from home, unless by licence, upon pain of forfeiting all their goods; and they may not come to court under pain of 1001. No marriage or burial of such recusant, or baptism of his child, shall be had otherwise than by the ministers of the church of England, under other severe penalties. A married woman, when recusant, shall forfeit two-thirds of her dower or jointure, may not be executrix or administratrix to her husband, nor have any part of his goods; and during the coverture may be kept in prison, unless her husband redeems her at the rate of 101. a month, or the third part of all his lands. And, lastly, as a feme-covert recusant may be imprisoned, so all others must, within three months after conviction, either submit and renounce their errors, or if required so to do by four justices, must abjure and renounce the realm : and if they do not depart, or if they return without the king's licence, they shall be guilty of felony, and suffer death as felons without the benefit of clergy. There is also an inferior species of recusancy (refusing to make the declaration against popery, enjoined by statute 30 Car. II. st. 2. when tendered by the proper magistrate), which; if the party resides within ten miles of London, makes him an absolute recusant convict; or if at a greater distance, suspends him from having any seat in parliament, keeping arms

in his house, or any horse above the value of five pounds. This [57] is the state, by the laws now in being, (b) of lay papist. But, 3.

The remaining species or degree, viz. popish priests, are in a still more dangerous condition. For by statute 11 & 12 W. III. c. 4. popish priests or bishops, celebrating mass, or exercising any part of their func. tions in England, except in the houses of ambassadors, are liable to perpe. tual imprisonment. And by the statute 27 Eliz. c. 2. any popish priest, born in the dominions of the crown of England, who shall come over hither from beyond sea (unless driven by stress of weather, and tarrying only a reasonable time) (c) or shall be in England three days without conforming and taking the oaths, is guilty of high treason: and all persons harbouring him are guilty of felony without the benefit of clergy.

This is a short summary of the laws against the papists, under their three several classes, of persons professing the popish religion, popish recusants convict, and popish priests. Of which the president Montesquieu observes, (d) that they are so rigorous, though not professedly of the sanguinary kind, that they do all the hurt that can possibly be done in cold blood. But in answer to this it may be observed (what foreigners who only judge from our statute-book are not fully apprized of), that these laws are seldom exerted to their utmost rigour and, indeed, if they were, it would be very difficult to excuse them. For they are rather to be accounted for from their history, and the urgency of the times which produced them, than to be approved (upon a cool review) as a standing system of law. The restless machinations of the jesuits during the reign of Elizabeth, the turbulence and uneasiness of the papists under the new religious

b Stat. 23 Eliz. c. 1. 27 Eliz. . 2. 29 Eliz. c. 6. 85 Eliz. c. 2. 1 Jac. I. c. 4. 3 Jac. I. c. 4. & 5. 7 Jac. I. c. 6. 3 Car. I. c. 3. 25 Car. II. c. 2. 50 Car. II. st. 2. 1 W. & M. c. 9. 15. & 26. 11 & 12 W. III. c. 4. 12 Ann. st. 2. c. 14. 1 Geo. I. st. 2. c. 55. 2 Geo. I. c. 18. 11 Geo. II. c. 17.

c Raym. 377. Latch. 1.

d Sp. L. b. 19. c. 27.

(8) But now by the statute 31 Geo. III. c. 32. (amended and explained by the 43 Geo. III. c. 30.), which may be called the toleration act of the Roman catholics, all the severe and cruel restrictions and penalties, enumerated by the learned judge, are removed from those Roman catholics who are willing to comply with the requisitions of that statute; which are, that they must ap pear at some of the courts of Westminster, or at the quarter-sessions held for the county, city, or place where they shall reside, and shall make and subscribe a declaration, that they profess the Roman catholic religion, and also an oath which is exactly similar to that required by the 18 Geo. III. c. 60., the substance of which is stated above in the text. Of this declaration and oath being duly made by any Roman catholic, the officer of the court shall grant him a certificate and such officer shall yearly transmit to the privy council lists of all persons who have thus quali fied themselves within the year in his respective court. The statute (sect. 4) then provides, that a Roman catholic, thus qualified, shall not be prosecuted under any statute for not repairing to a parish church, nor shall he be prosecuted for being a papist, nor for attending or performing mass or other ceremonies of the church of Rome; provided (by sect. 5.) that no place shall be allowed for an assembly to celebrate such worship until it is certified to the sessions; nor shall any minister officiate in it, until his name and description are recorded there. And (by sect. 6. of 31 Geo. III. c. 32.) no such place of assembly shall have its doors locked or barred during the time of meeting or divine worship.

If any Roman catholic whatever is elected constable, churchwarden, overseer, or into any par rochial office, he may execute the same by a deputy, to be approved as if he were to act for himself as principal. (Id. s. 7.) But every minister, who has qualified, shall be exempt from serving upon juries, and from being elected into any parochial office. (id. s. 8.) And all the laws for frequenting divine service on Sundays, shall continue in force, except where persons attend some place of worship allowed by this statute, or the toleration act of the dissenters. 1 W. & M. s. 1. c. 18. id. s. 9.

If any person disturb a congregation allowed under this act, he shall, as for disturbing a dis senting meeting, be bound over to the next sessions, and upon conviction there, shall forfeit twenty pounds. Sect. 10.

But no Roman catholic minister shall officiate in any place of worship having a steeple and e bell, or at any funeral in a church or church-yard, or shall wear the habits of his order, except in VOL. II. 53