abolished, and heresy again subjected only to ecclesiastical correction, pro salute anima, 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 corpus act, and our minds from the tyranny of superstitious bigotry, by demolishing 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 favor a loose latitude of propagating any crude, 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 [*50] legislature hath indeed thought it proper, that the civil magistrate should again interpose, with regard to one species of heresy very prevalent in modern times; for by statute 9 and 10 Wm 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 in 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. (1) And thus much for the crime of heresy.

III. Another species of offences against religion are those which affect 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. (2) 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 I 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 one year's value of his benefice: for the second offence he shall be deprived, and suffer one year's imprisonment: and, for the third, he shall in like manner be deprived, and suffer imprisonment for life. *And if any person [*51 ] whatsoever shall, in plays, songs, or other open words, speak any thing in derogation, depraving, 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 first offence an hundred marks; for the second, four hundred; and for the third, shall forfeit all his goods and chattels, and suffer imprisonment

(1) [This enactment, so far as it affected persons denying the holy trinity, was repealed by the 53 Geo. III, c. 160, § 2. See R. v. Waddington, 1 B. and C. 26; R. v. Carlile, 3 B. and Ald. 161.]

(2) See the cases cited in the previous note.

for life. (3) These penalties were framed in the infancy of our present establishment, when the disciples of Rome and Geneva united in inveighing with the utmost bitterness against the English liturgy; and the terror 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 aifferently 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 mode of worship; yet contumely and contempt are what no establishment can tolerate. (w) 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 hinted at in a former volume, (x) 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 shown 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 of private conscience, to the scruples of [*52] which our present laws have shown 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 attend the service of no other persuasion. These, by the statutes of 1 Eliz. c. 2, 23 Eliz. c. 1, and 3 Jac. 1, c. 4, forfeit one shilling to the poor every Lord's day they so absent themselves, and 20l. 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 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 divided 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, 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 practice are such as to threaten ruin or disturbance to the state. He is bound, indeed, to protect the established church; *and, if this can be better [*53 ] effected, by admitting none but its genuine members to offices of trust

(w) 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, subjected the offender upon indictment to a discretionary fine, not exceeding 501. (Scobell 98.) (z) Book I, p. 98.

(3) [This statute of 1 Eliz. c. 2, was repealed as far as relates to protestant dissenters, by the 31 Geo. III, c. 32, s. 3.]

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 from persecution for diversity of opinions, however ridiculous and 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 an 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 (y) 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. (2) 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 and 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, first, that they take the oaths of allegiance and supremacy (or make a similar affirmation, being quakers) (a) and subscribe the declaration against popery; second, that they repair to some congregation certified to and registered in the court of the bishop or archdeacon, or at the county sessions; third, that the doors of such meeting-honse shall be unlocked, unbarred, and unbolted; in default of which the persons meeting there are [*54] still liable to all the penalties of the former acts. Dissenting teachers

in order to be exempted from the penalties of the statutes 13 and 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 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 meeting-house, or shall misuse any preacher or teacher there, he shall (by virtue of the same statute, 1 W. and 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 lissenting meeting with the ensigns of his office, (b) 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 ( 1 ) 23 Eliz. c. 1. 20 Eliz. c. 6. 35 Eliz. C. I. 22 Car. II, c. 1.

(The ordinance of 1645 (before cited) inflicted imprisonment for a year on the third offence, and pecu. niary 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.

(a) See stat. S Geo. I. c. 6.

(b) Sir Humphrey Edwin, a lord mayor of London, 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.

(unless in the case of endowed schools, and colleges), from the penalties of the statutes 13 and 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, estab- [ *55 ] lished by the laws of this kingdom. (4)

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, 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 teach or keep 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. 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 [*56]

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. Popish recusants, convicted in a court of law of not attending the 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 license, upon pain of forfeiting all their goods; and they may not come to court under pain of 1007. 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 twothirds 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

(4) The statutes here mentioned, and others operating as restraints and impediments to the religious worship and education of persons not in communion with the established church, are nearly all repealed. See statutes 9 Geo. IV, c. 17; 8 and 9 Vic. c. 102; 9 and 10 Vie. c. 59 29 and 30 Vic. c. 52; 30 and 31 Vic. c. 62. For an account of the modern advance of religious liberty in England, see May, Const. Hist. cc. 12-14.

in prison, unless her husband redeems her at the rate of 107. 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 license, 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, [*57] keeping arms in his house, or any horse above the value of five pounds. This is the state, by the laws now in being, (c) of a lay papist. But, 3. The remaining species or degree, viz., popish priests, are in a still more dangerous condition. For by statute 11 and 12 Wm. III, c. 4, popish priests or bishops, celebrating mass, or exercising any part of their functions in England, except in the houses of ambassadors, are liable to perpetual imprisonment. And by the statute 27 Eliz. c. 2, any popish priests, 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, (d) 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, (e) 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 establishment, and the boldness of their hopes and wishes for the succession of the queen of Scots, obliged the parliament to counteract so dangerous a spirit by laws of a great, and then perhaps necessary, severity. The powder-treason, in the succeeding reign, struck a panic into *James I, which operated [*58] in different ways: it occasioned the enacting of new laws against the papists; but deterred him from putting them into execution. The intrigues of Queen Henrietta in the reign of Charles I, the prospect of a popish successor in that of Charles II, the assassination-plot in the reign of King William, and the avowed claim of a popish pretender to the crown in that and subsequent reigns, will account for the extension of these penalties at those several periods of our history. But if a time should ever arrive, and perhaps it is not very distant, when all fears of a pretender shall have vanished, and the power and influence of the pope shall become feeble, ridiculous, and despicable, not only in England, but in every kingdom of Europe; it probably would not then be amiss to review and soften these rigorous edicts: at least till the civil principles of the Roman catholics called again upon the legislature to renew them: for it ought not to be left in the breast of every merciless bigot to drag down the vengeance of these occasional laws upon inoffensive, though mistaken, subjects; in opposition to the lenient inclinations of the civil magistrate, and to the destruction of every principle of toleration and religious liberty.

(c) Stat. 23 Eliz. c. 1. 27 Eliz. c. 2. 29 Eliz. c. 6. 35 Eliz. c. 2. 1 Jac I, c. 4. 3 Jac. I, c. 4 and 5. 7 Jac. I, c. 8. 3 Car. I, c. 3. 25 Car. II. c. 2. 30 Car. II. st. 2. 1 W. and M. c. 9, 15 and 26. 11 and 12 Wm. III, c. 4. 12 Ann. st. 2, c. 11. 1 Geo. I, st. 2, c. 55. 3 Geo. I. c. 18. 11 Geo. II, c. 17.

(d) Raym. 377. Latch, 1.

(e) Sp. L. b. 19, c. 27.