into such extremes as may endanger the national church; [ 52 ] there is always a difference to be made between toleration and establishment. formists of senting from Non-conformists are of two sorts: first, such as absent them- Non-conselves from divine worship in the Established Church, through two sorts; total irreligion, and attend the service of no other persuasion. as. 1. Ab. These, by the statutes of 1 Eliz., c. 2, 23 Eliz., c. 1, and 3 Jac. church. I., c. 4, forfeit one shilling to the poor every Lord's day they so absent themselves, and £20 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 £10 per month. through mis The second species of non-conformists are those who offend 2. Offending through a mistaken or perverse zeal. Such were esteemed by taken or per our laws, enacted since the time of the Reformation, to be verse zeal. 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 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 favor 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 de- [53] votion, the materials and color 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. dissenters. With regard, therefore, to Protestant dissenters, although the Protestant 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, yet at length the legislature, with a spirit of true magnanimity, extended that indulgence to these sectaries, * 23 Eliz., c. 1; 29 Eliz., c. 6; 35 Eliz., c. 1; 22 Car. II., c. 1. which they themselves, when in power, had held to be countenancing schism, and denied to the Church of England. 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 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 Quakersz°), 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 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 [54] 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 willfully, maliciously, or contemptuusing the Book of Common Prayer, not only in a place of public worship, but also in any private family. The ordinance of 1645 (before cited) inflicted imprisonment for a year on the third offense, and pecuniary penalties on the former two, in case of (5) The exception is repealed, as to the latter class of persons, by stat. 53 Geo. III., c. 160, s. 1. (6) This indulgence is now extended, by stat. 22 Geo. III., c. 30, to Moravians; by 3 & 4 Will. IV., c. 49, s. 2, a form of abjuration oath, for Quakers and Mora 2 See stat. 8 Geo. I., c. 6. vians, is given; by 3 & 4 Will. IV., C. 32, the same exemption is allowed to Separatis; and by 1 & 2 Vict., c. 77, to any person who shall have been a Quaker or Moravian. (7) Supra, n. (5). ously disturb any congregation assembled in any church or permitted meeting-house, or shall misuse any preacher or teacher there, ne 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." a 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 formali (8) To constitute an offense 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 £40. The act applies only where the thing is done willfully and of purpose, maliciously to disturb the congregation, or misuse the preacher, per Abbott, C. J., 2 B. & C., 699; sed vide 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 Q. B. by prosecutor before verdict. 5 T. R., 542; 4 M. & Sel., 508.-[CHITTY.]* ties; 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. ing 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 £10 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 (9) The 13 & 14 Car. II., c. 1, 17 such declaration, and give him a certifiCar. II., c. 2, and 22 Car. II., c. 1, are cate thereof. By sect. 11, no place of repealed by the 52 Geo. III., c. 155, s. public meeting for religious worship 1, by which all places of religious wor- must have the doors fastened, so as to ship of Protestants must be certified to prevent persons entering therein during the bishop of the diocese, or the arch- the time of such meeting, under a penalty deacon of the archdeaconry, or to the to the teacher of not exceeding £20 nor justices at the general or quarter ses- less than 10s. By sect. 13, the act is not sions, and shall be also registered, and a to affect the celebration of divine service, penalty to the amount of £20 and not according to the rites of the Church of less than 208. may be inflicted for per- England and Ireland, by ministers of mitting meetings in places not so certi- such church, in places before then used fied or registered. And by sect. 4, every for that purpose, or licensed or conseperson teaching or preaching at, or be- crated by any person so to do, nor affect In New York, the disturbance of congregations while engaged in religious worship is punished.-(1 R. S., 674; see 3 Wendell, 253.) Papists. As to papists, what has been said of the Protestant dissenters would hold equally strong for a general toleration of them; [55] 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 relics and images; nay, even their transubstantiation. But while they acknowledge a foreign power, superior to the sovereignty of the kingdom, they can not complain if the laws of that kingdom will not treat them upon the footing of good subjects.' 1. Persons professing popery. 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 offense [56] amounts to high treason. 2. Popish recusants, convicted in a the jurisdiction of bishops, or others ex- them, except those expressly above repealed.-[CHITTY.] (1) Since the stat. 10 Geo. IV., c. 7. these observations, and the statement which follows, are of course no longer applicable See post, 58, n. (8). recusants court of law of not attending the service of the Church of En- 2. Popish gland, are subject to the following disabilities, penalties, and convicted. 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 £100; 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 £100. 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 £10 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 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 is the state, by the laws now in being,b of a lay papist. But, 3. The remaining species or degree, viz., [57] popish priests, are in a still more dangerous condition. For, by 3. Popish statute 11 & 12 Will. III., c. 4, popish priests or bishops cele- priests. brating mass, or exercising any part of their functions in England, except in the houses of embassadors, are liable to perpetual 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 the sea (unless driven by stress of weather, and tarrying only a reasonable time), or shall be in England three days without conforming and taking the oaths, is guilty of high treason; and all persons harboring him are guilty of felony without the benefit of clergy. This is a short summary of the laws against the papists, the 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. 6; 3 Car. I., c. 3; 25 Car. II., c. 2; 30 Car. II., st. 2; 1 W. & M., c. 9, 15, and VOL. IV.-D Observa |