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by the ecclesiastical judge. The same emperor, in another constitution, ordained that if any temporal lord, when admonished by the Church, should neglect to clear his territories of heretics within a year, it should be lawful for good Catholics to seize and occupy the lands, and utterly to exterminate the heretical possessors. And upon this foundation was built that arbitrary power, so long claimed and so fatally exerted by the pope, of disposing even of the kingdoms of refractory princes to more dutiful sons of the Church. The immediate event of this constitution was something singular, and may serve to illustrate at once the gratitude of the holy see, and the just punishment of the royal bigot; for upon the authority of this very constitution the pope afterward expelled this very Emperor Frederic from his kingdom of Sicily, and gave it to Charles of Anjou.P

Christianity being thus deformed by the demon of persecution upon the Continent, we can not expect that our own island should be entirely free from the same scourge. And, therefore, we find among our ancient precedents a writ de hæretico comburendo, which is thought by some to be as ancient as the common law itself. However, it appears from thence that the conviction of heresy by the common law was not in any petty ecclesiastical court, but before the archbishop himself in a provincial synod; and that the delinquent was delivered over to the king to do as he should please with him; so that the crown had a control over the spiritual power, and might pardon the convict by issuing no process against him; the writ de hæretico comburendo being not a writ of course, but issuing only by the special direction of the king in coun

cil.r

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 Lollardys) 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, 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 abjuration, 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 offense, and indictable in the king's

• Cod., 1, 5, 4.

P Baldus in Cod., 1, 5, 4.

q F. N. B., 269.

1 Hal., P. C., 395.

So called, not from lolium, or tares (an etymology which was afterward de

vised in order to justify the burning of them, Matth., xiii., 30), but from one Walter Lolhard, a German reformer, A.D., 1315. Mod. Univ. Hist., xxvi., 13. Spelm., Gloss., 371.

t 2 Hen. IV., c. 15.

courts; which did not thereby gain an exclusive, but only a concurrent jurisdiction with the bishop's consistory.

Afterward, 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 are told in some points what it is not; the statute 25 Hen. VIII., c. 14, declaring that offenses 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 afterward, by statute 31 Hen. VIII., c. 14, the bloody law of the six articles was made, which established the six most contested points of popery, transubstantiation, communion in one kind, the celibacy of the clergy, monastic vows, the sacrifice of the mass, and auricular confession; which points [ 48 ] were "determined and resolved by the most godly study, pain, and travail of his majesty for which his 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 burned with fire; and of the last five 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 rancor, or personal caprice and resentment. By statute 1 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 synod only. Sir Matthew Hale is, indeed, of a different opinion, and holds that such power resided in the diocesan also, though he agrees that in either case the writ de hæretico comburendo was not demandable of common right, but grantable or otherwise merely at the king's discretion. 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; nothing for the future being

5 Rep., 23; 12 Rep., 56, 92.

u 1 Hal., P. C., 405.

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 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 worse to have defined it in terms still more pre[49]cise and particular: as a man continued still liable to be burned 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 hæretico 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 animæ, 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 endeavor 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 proper that the civil magistrate should again interpose, with regard to one species. of heresy, very prevalent in modern times; for by statute 9 & 10 Will. 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 [50] 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 apostasv

by the same statute.' And thus much for the crime of heresy.*

es against

III. Another species of offenses against religion are those III. Offens which affect the Established Church. And these are either the Estab positive or negative: positive, by reviling its ordinances; or Church. negative, by non-conformity to its worship. Of both of these in their order.

lished

ordinances

1. And, first, of the offense of reviling the ordinances of the 1. Reviling Church. This is a crime of a much grosser nature than the of Church. other of mere non-conformity; 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 offense, and for life for the second; and if he be beneficed, he shall, for the first offense, be imprisoned six months, and forfeit a year's value of his benefice; for the second offense

(3) This statute has been repealed, so far as it affects Unitarians only, by the 53 Geo. III., c. 160. Prosecutions for reviling the Trinity seem to have been generally framed on the construction of the common law. The 9 & 10 Will. III. has not altered the common law as to the offense of blasphemy, but only given a cumulative punishment. See post, 54, n. (7). And it seems, also, the 53 Geo. III., c. 160, does not alter the

common law, but only removes the pen-
alties imposed upon persons denying
the Trinity by 9 & 10 Will. III., c. 32,
and extends to such persons the bene-
fits conferred upon all other Protestant
dissenters by 1 W. & M., s. 1, c. 18. 1
Bar. & Cres., 26.[CHITTY.]

(4) See 3 B. & Ald., 161; 1 B. & C., 26.-[CHITTY.]

*There is no such crime as heresy known to the law in the state of New York. In New York there is no established church, and, of course, the offenses treated of in respect to it can not exist. By the Constitution of the United States, Congress is prohibited from making any law respecting an establishment of religion or prohibiting the free exercise thereof.-Amendments, art. 1. Previous to the adoption of this Constitution, it had, in 1777, been made a part of the fundamental law of the state of New York that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, should forever thereafter be allowed within the state to all mankind. Similar provisions are to be found in the constitutions of most, if not of all the states of the Union. Maryland, however, holds the proud distinction of having been the first of the American states which secured a free toleration of religious belief and worship, an act having been passed by its Colonial Legislature in 1649, declaring that no persons professing to believe in JESUS CHRIST should be molested in respect to their religion or in the free exercise thereof, or be compelled to the belief or exercise of any other religion against their consent.-(See 2 Kent's Comm., 34.)

life.

he shall be deprived, and suffer one year's imprisonment; and, for the third, shall in like manner be deprived, and suffer imprisonment for life. And if any person 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 offense a hundred marks; for the second, four hundred; and for the third, shall [51] forfeit all his goods and chattels, and suffer imprisonment for 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 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 leveled at the offense, not of thinking differently 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. 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,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 shown that some manifest impiety or shocking absurdity will follow from continuing the present forms.

2. Non-conformity.

2. Non-conformity to the worship of the Church is the other, or negative branch of this offense. And for this there is much more to be pleaded than for the former; being a matter of private conscience, to the scruples of 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

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 50 pounds. (Scobell, 98.)
w Vol. i., p. 98.

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

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