47m, the writ de haeretico comburendo being not a writ of course bu issuing only by the special direction of the king in council (7) But in the reign of Henry the Fourth, when the eyes of the christian world began to open, and the seeds of the protestant religion (though under the opprobrious name of lollardy) (s) took root in this kingdom; the clergy taking advantage from the king's dubious title to demand an increase of their own power, obtained an act of parliament (t), which sharpened the edge of persecution to its utmost keenness. For, by that statute, the diocesan alone, without the intervention of a synod, might convict of heretical tenets; and unless the convict abjured his opinions, or if after ab juration he relapsed, the sheriff was bound ex officio, if required by the bishop, to commit the unhappy victim to the flames, without waiting for the consent of the crown. By the statute 2 Hen. V. c. 7. lollardy was also made a temporal offence, and indictable in the king's courts; which did not thereby gain an exclusive, but only a concurrent jurisdiction with the bishop's consistory. Afterwards, when the final reformation of religion began to advance, the power of the ecclesiastics was somewhat moderated: for though what heresy is, was not then precisely defined, yet we were told in some points what it is not: the statute 25 Hen. VIII. c. 14. declaring that offences against the see of Rome are not heresy; and the ordinary being thereby restrained from proceeding in any case upon mere suspicion; that is, unless the party be accused by two credible witnesses, or an indictment of heresy be first previously found in the king's courts of common law. And yet the spirit of persecution was not then abated, but only diverted into a lay channel. For in six years afterwards, by statute 31 Hen. VIII. c. 14. the bloody law of the six articles was made, which established [*48] the six most contested points of *popery, transubstantiation, com : munion in one kind, the celibacy of the clergy, monastic vows, the sacrifice of the mass, and auricular confession; which points were "determined and resolved by the most godly study, pain, and travail of his majesty for which bis most humble and obedient subjects, the lords spiritual and temporal, and the commons, in parliament assembled, did not only render and give unto his highness their most high and hearty thanks," but did also enact and declare all oppugners of the first to be heretics, and to be burnt with fire; and of the five last to be felons, and to suffer death. The same statute established a new and mixed jurisdiction of clergy and laity for the trial and conviction of heretics; the reigning prince being then equally intent on destroying the supremacy of the bishops of Rome, and establishing all other their corruptions of the christian religion. I shall not perplex this detail with the various repeals and revivals of these sanguinary laws in the two succeeding reigns; but shall proceed directly to the reign of queen Elizabeth; when the reformation was finally established with temper and decency, unsullied with party rancour, or personal caprice and resentment. By statute Eliz. c. 1. all former statutes relating to heresy are repealed, which leaves the jurisdiction of heresy as it stood at common law; viz. as to the infliction of common censures, in the ecclesiastical courts; and in case of burning the heretic, in the provincial senate only (u). Sir Matthew Hale is indeed of a different opinion. (r) 1 Hal. P. C. 395. (a) So called not from lolium, or tares, (an etymology which was afterwards devised in order to tify the burning of them, Matth. xiii. 30.) but from one Walter Lolhard, a German reformer, A. D 1315. Mod. Un. Hist. xxvi. 13. Spelm. Gloss, 371 (t) 2 Hen. IV. c. 15. (u) 5 Rep. 23. 12 Rep. 56 V and holds that such power resided in the diocesan also, though he agrees, that in either case the writ de haeretico comburendo was not demandable of common right, but grantable or otherwise merely at the king's discre tion (u). But the principal point now gained was, that by this statute a boundary is for the first time set to what shall be accounted heresy; no thing for the future being to be so determined, but only such tenets, which have been heretofore so declared, 1. By the words of the canonical scriptures: 2. By the first four general councils, or such *others [*49] as have only used the words of the holy scriptures; or, 3. Which shall hereafter be so declared by the parliament, with the assent of the clergy in convocation. Thus was heresy reduced to a greater certainty than before; though it might not have been the worst to have defined it in terms still more precise and particular: as a man continued still liable to be burnt, for what perhaps he did not understand to be heresy till the ecclesiastical judge so interpreted the words of the canonical scriptures For the writ de haeretico comburendo remained still in force; and we have instances of its being put in execution upon two anabaptists in the seventeenth of Elizabeth, and two arians in the ninth of James the First. But it was totally abolished, and heresy again subjected only to ecclesiastical correction pro salute animae, by virtue of the statute 29 Car. II. c. 9. For in one and the same reign, our lands were delivered from the slavery of military tenures, our bodies from arbitrary imprisonment by the habeas cor pus act; and our minds from the tyranny of superstitious bigotry, by de inolishing this last badge of persecution in the English law. In what I have now said, I would not be understood to derogate from the just rights of the national church, or to favour a loose latitude of propagating any rude undigested sentiments, in religious matters. Of propagating, I say; for the bare entertaining them, without an endeavour to diffuse them, seems hardly cognizable by any human authority. I only mean to illustrate the excellence of our present establishment, by looking back to former times. Every thing is now as it should be, with respect to the spiritual cognizance, and spiritual punishment, of heresy: unless perhaps that the crime ought to be more strictly defined, and no prosecution permitted, even in the ecclesiastical courts, till the tenets in question are by proper authority previously declared to be heretical. Under these restrictions it seems necessary for the support of the national religion, that the officers of the church should have power to censure heretics; yet not to harass them with temporal penalties, much less to exterminate or destroy them. The legislature hath indeed thought it pro- [50] per, that the civil magistrate should again interpose, with regard to one species of heresy very prevalent in modern times; for by statute 9 & 10 W. III. c. 32. if any person educated in the christian religion, or professing the same, shall by writing, printing, teaching, or advised speaking, deny any one of the persons of the holy Trinity to be God, or maintain that there are more gods than one, he shall undergo the same penalties and incapacities, which were just now mentioned to be inflicted on apostacy by the same statute (3). And thus much for the crime of heresy. (u) 1 Hal. P. C. 405. (3) This statute has been repealed as far as it affects unitarians only, by the 53 Geo. (II. c. 160. Prosecutions for reviling the Trinity, seem to have been generally framed The on the construction of the common law [1. Another species of offences against religion are those which affec the established church. And these are either positive or negative: positive by reviling its ordinances; or negative, by non-conformity to its worship Of both of these in their order. 1. And, first, of the offence of reviling the ordinances of the church (4) This is a crime of a much grosser nature than the other of mere nonconformity since it carries with it the utmost indecency, arrogance, and ingratitude; indecency, by setting up private judgment in virulent and factious opposition to public authority: arrogance, by treating with contempt and rudeness what has at least a better chance to be right than the singular notions of any particular man and ingratitude, by denying that indulgence and undisturbed liberty of conscience to the members of the national church, which the retainers to every petty conventicle enjoy However, it is provided by statutes 1 Edw. VI. c. 1. and 1 Eliz. c. 1. that whoever reviles the sacrament of the Lord's supper shall be punished by fine and imprisonment; and by the statute 1 Eliz. c. 2. if any minister shall speak any thing in derogation of the book of common prayer, he shall, if not beneficed, be imprisoned one year for the first offence, and for life for the second: and if he be beneficed, he shall for the first offence be imprisoned six months, and forfeit a year's value of his benefice: for the second offence he shall be deprived, and suffer one year's imprisonment : and, for the third, shall in like manner be deprived, and suffer im [*51] prisonment for life. And if any person whatsoever shall, in plays, songs, or other open words, speak any thing in derogation, deprav ing, or despising of the said book, or shall forcibly prevent the reading of it, or cause any other service to be used in its stead, he shall forfeit for the irst offence an hundred marks; for the second, four hundred; and for the third, shall forfeit all his goods and chattels, and suffer imprisonment for life (5). These penalties were framed in the infancy of our present establishment, when the disciples of Rome and of Geneva united in inveighing with the utmost bitterness against the English liturgy; and the terro of these laws (for they seldom, if ever, were fully executed) proved a principal means, under Providence, of preserving the purity as well as decency of our national worship. Nor can their continuance to this time (of the milder penalties at least) be thought too severe and intolerant; so far as they are levelled at the offence, not of thinking different from the national church, but of railing at that church and obstructing its ordinances, for not submitting its public judgment to the private opinion of others. For, though it is clear that no restraint should be laid upon rational and dispassionate discussions of the rectitude and propriety of the established made of worship; yet contumely and contempt are what no establishment can tolerate (v). A rigid attachment to trifles, and an intemperate zeal for reforming them, are equally ridiculous and absurd; but the latter is at present the less excusable, because from political reasons, sufficiently (v) By an ordinance 23 Aug. 1645, which continued till the restoration, to preach, write, or print any thing in derogation or depraving of the directory, for the then established presbyterian worship, 54. n. 7. And it seems also the 53 Geo. III. c. 160. does not alter the common law, but only emoves the penalties imposed upon persons lenying the Trinity, by 9 & 10 W. III. c. 32. and extends to such persons the benefits conferred upon all other protestan dissente s. bv subjected the offender upon indictment to a discre tionary fine, not exceeding 50 pounds. (Scobel) 98.) 1 W. & M. s. 1. c. 18. 1 Bar.& Cres. 26. unted at in a former volume (w), it would now be extremely unadvisable to make any alterations in the service of the church; unless by its own consent, or unless it can be shewn that some manifest impiety or shocking absurdity will follow from continuing the present forms. 2. Non-conformity to the worship of the church is the other, or negative branch of this offence. And for this there is much more to be pleaded than for the former; being a *matter cf private con- [*52] science, to the scruples of which our present laws have shewn a very just and christian indulgence. For undoubtedly all persecution and oppression of weak consciences, on the score of religious 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 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 at tend the service of no other persuasion. These by the statutes of 1 Eliz c. 2. 23 Eliz. c. 1. and 3 Jae. I. c. 4. forfeit one shilling to the poor every Lord's day they so absent themselves, and 20l. to the king if they con tinue such default for a month together. And if they keep any inmate, thus irreligiously disposed, in their houses, they forfeit 10l. 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 divided from it upon material, though erroneous, reasons; but many of the dissenters upo 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, through 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 praclice are such as threaten ruin or disturbance to the state. He is bound indeed to protect the established church; *and, if this can [*53] 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 dis posal 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, 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 heir 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 denied to the church of England (y). The penalties are conditionally suspended by the statute 1 W. & M. st. 1. c. 18. " for exempting their majesties' 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. nor any other penal laws made against popish recusants (except the test acts), shall extend to any 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) (z) 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 house shall be unlocked, unbarred, and unbolted; in default of [*54] 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 doctrine of the sacraments), with an express exception of those relating to the government and powers of the church, and to infant baptism; 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 universally abrogated, it is sus pended and ceases to exist with regard to those protestant dissenters, dur ing their compliance with the conditions imposed by these acts; and, un der 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 meeting-house, 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 wenty pounds (6). 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 legis (y) The ordinance of 1845 (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 public worship, but also in any private family. (z) See stat. 8 Geo. I. c. 6. (6) To constitute an offence within this act, the party must come into the place of wor ship. See 5 T. R. 542. The enactment is repeated, without the words, "come into," in he 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 urpose maliciously to disturb the congrega (a) Sir Humphrey Edwin, a lord mayor of Lon don, had the imprudence soon after the toleration act to go to a 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. tion, 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 fo'ind at sessions may be removed into K. B. by prosecutor before verdict. 5 T. R 542 4 M. & S. 508. |