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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. (z) 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, 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-house 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 meaus 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. senters, also, who subscribe the declaration of the act 19 Geo. III, are exempted ( H ) 23 Eliz. c. 1. 29 Eliz. c. 6. 35 Eliz. C. 1. 22 Car. II, c. 1.


(z) The ordinance of 1615 (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. & Geo. I. c. 6.

76) 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 [*56] 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. 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 Vic. 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.

VOL. II.-42


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 inprisoned, 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 recusaney (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 conviet, 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. 6. 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 Wrt. III, c. 4. ́ ́12 Ann. st. 2, c. 14. 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.

This hath partly been done by statute 18 Geo. III, c. 60, with regard to such papists as duly take the oath therein prescribed, of allegiance to his majesty, abjuration of the pretender, renunciation of the pope's civil power, and abhorrence of the doctrines of destroying and not keeping faith with heretics, and deposing or murdering princes excommunicated by authority of the see of Rome: in respect of whom only the statute of 11 and 12 Wm. III is repealed, so far as it disables them from purchasing or inheriting, or authorizes the apprehending or prosecuting the popish clergy, or subjects to perpetual imprisonment either them or any teachers of youth. (5)

In order the better to secure the established church against perils from noncomformists of all denominations, infidels, Turks, Jews, heretics, papists, and sectaries, there are however two bulwarks erected; called the corporation and test acts: (6) by the former of which (f) no person can be legally elected to any office relating to the government of any city or corporation, unless, within a twelvemonth before he has received the sacrament of the Lord's supper, according to the rites of the church of England; and he is also enjoined to take the oaths of allegiance and supremacy at the same time that he takes the oath of office: or, in default of either of these requisites, such [*59] election shall be void. The other, called the test act, (g) directs all officers, civil and military, to take the oaths and make the declaration against transubstantiation, in any of the king's courts at Westminster, or at the quarter sessions, within six calendar months after their admission; and also within the same time to receive the sacrament of the Lord's supper, according to the usage of the church of England, in some public church, immediately after divine service and sermon, and to deliver into court a certificate thereof signed by the minister and church warden, and also to prove the same by two credible witnesses upon forfeiture of 500l. and disability to hold the said office. And of much the same nature with these, is the statute 7 Jac. I, c. 2, which permits no persons to be naturalized or restored in blood, but such as undergo a like test: which test having been removed in 1753, in favor of the Jews, was the next session of parliament restored again with some precipitation.

Thus much for offences, which strike at our national religion, or the doctrine and discipline of the church of England in particular. I proceed now to consider some gross impieties and general immoralities, which are taken notice of and punished by our municipal law; frequently in concurrence with the ecclesiastical, to which the censure of many of them does also of right appertain; though with a view somewhat different: the spiritual court punishing all sinful enormities for the sake of reforming the private sinner, pro salute anima; while the temporal courts resent the public affront to religion and morality on which all government must depend for support, and correct more for the sake of example than private amendment.

IV. The fourth species of offences, therefore, more immediately against God and religion, is that of blasphemy against the Almighty, by denying his being or providence; or by contumelious reproaches of our Saviour Christ. (7) Whither

(f) Stat. 13 Car. II, st. 2, c. 1.

(g) Stat. 25 Car. II, c. 2, explained by 9 Geo. II, c. 26.

(5) The restrictions, penalties and disabilities, imposed by statute upon persons professing he Roman Catholic religion, are now nearly all removed. See statutes 10 Geo. IV, c. 7; 7 and 3 Vic. c. 102; 9 and 10 Vic. c. 59; 29 and 30 Vic. c. 22; 30 and 31 Vic. c. 62; May's Const. Hist. c. 12-14.

(6) But these "bulwarks" of the church, having become generally odious, were in 1828 repealed, with the consent even of the prelates and to the general satisfaction of the nation.

(7) The law on the subject of blasphemy is so fully considered in the cases of People v. Ruggles, 8 Johns. 290; State v. Chandler, 2 Harr. 555; Updegraph v. Commonwealth, 11 S. and R. 394; and Commonwealth v. Kneeland, 20 Pick. 213, as to leave little to be added by other authorities.

The doctrine of our commentator, that "Christianity is part of the law of England," is true in the qualified sense that the law takes notice of the fact that Christianity is the prevailing religion among the people, and that evil speech concerning the Being who is the object of

also may be referred all profane scoffing at the holy scripture, or exposing it to contempt and ridicule. These are offences punishable at common law by fine and imprisonment, or other infamous corporal punishment; (7) for Christianity is part of the laws of England. (i)

V. Somewhat allied to this, though in an inferior degree, is the offence of profane and common swearing and cursing. By the last statute against [*60] which, 19 Geo. II, c. 21, which repeals all former ones, every labourer, sailor, or soldier profanely cursing or swearing shall forfeit 18.; every other person under the degree of a gentleman 2s.; and every gentleman or person of superior rank 5s. to the poor of the parish; and, on the second conviction, double; and, for every subsequent offence, treble the sum first forfeited; with all charges of conviction: and in default of payment shall be sent to the house of correction for ten days. Any justice of the peace may convict upon his own hearing, or the testimony of one witness; and any constable or peace officer, upon his own hearing, may secure any offender and carry him before a justice, and there convict him. If the justice omits his duty, he forfeits 57. and the constable 40s. And the act is to be read in all parish churches and public chapels, the Sunday after every quarter-day, on pain of 57. to be levied by warrant from any justice. (8) Besides this punishment for taking God's name in vain in common discourse, it is enacted by statute 3 Jac. I, c. 21, that if in any stage-play, interlude, or show, the name of the holy trinity or any of the person's therein, be jestingly or profanely used, the offender shall forfeit 107., one moiety to the king, and the other to the informer.

VI. A sixth species of offence against God and religion, of which our ancient books are full, is a crime of which one knows not well what account to give. I mean the offence of witchcraft, conjuration, inchantment, or sorcery. To deny the possibility, nay, actual existence, of witchcraft and sorcery, is at once flatly to contradict the revealed word of God, in various passages both of the Old and New Testament: and the thing itself is a truth to which every nation in the world hath in its turn borne testimony, either by examples seemingly well attested, or by prohibitory laws; which at least suppose the possibility of commerce with evil spirits. The civil law punishes with death not only the sorcerers themselves, but also those who consult them, (j) imitating in the former the express law of God, (k) "thou shalt not suffer a witch to live." And our own laws, both before and since the conquest, have been *equally

[*61] penal; ranking this crime in the same class with heresy, and con

demning both to the flames. (1) The president Montesquieu (m) ranks them also both together, but with a very different view; laying it down as an important maxim, that we ought to be very circumspect in the prosecution of magic and heresy; because the most unexceptionable conduct, the purest morals, and the constant practice of every duty in life, are not a sufficient security against the suspicion of crimes like these. And indeed the ridiculous stories that are generally told, and the many impostures and delusions that have been discovered in all ages, are enough to demolish all faith in such a dubious crime; if the contrary evidence were not also extremely strong. Wherefore it seems to be the most eligible way to conclude, with an ingenious writer of our own, (2) that in general there has been such a thing as witchcraft; though one cannot give credit to any particular modern instance of it.

(h) 1 Hawk. P. C. 7. (k) Exod. xxii, 18.

(i) 1 Ventr. 293. 2 Strange, 834.
(2) 3 Inst. 44. (m) Sp. L. b. 12, c. 5.

(j) Cod. l. 9, c. 18.

(n) Mr. Addison, Spect. Nc 17.

adoration by the Christian, and malicious reproach or profane ridicule of Christ or the books of the Bible, have an evil effect in sapping the foundations of society and of public order, and are therefore properly punished as crimes. And the punishment of the lower species of profanity may be referred to the same principle. See upon this subject Cooley's Const. Lim 472, et seq.

(8) [By the 4 Geo. IV, c. 31, this latter provision is repealed.]

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