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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 declarec 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 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 apostasy by the same statute.1 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. This is a crime of a much grosser nature than the 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. I, 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 from 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 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 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 a hundred marks; for the second, four hundred; and for the third shall forfeit all his goods and chattels, and suffer imprisonment for life. *These penalties were framed in the infancy of our [*51 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
1This statute has been repealed, as 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 W. III. has not altered the common law as to the offence of blasphemy, but only given a cumulative punishment. And it seem also the 53 Geo. III. c. 160 does not alter the common law, but only removes the penalties imposed upon persons denying the Trinity by 9 & 10 W. III. c. 32, and extends to such persons the benefits conferred upon all other Protestant dissenters, by 1 W. and M. s. 1, c. 18. 1 Bar. & Cres. 26.-CHITTY.
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.-CHITTY.
levelled at the offence, not of thinking differently from the national church, but of railing as 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 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 indul*52] gence 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. I. c. 4, forfeit one shilling to the poor every Lord's day they so absent themselves, and 207. 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 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 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 *53] 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 their turbulent disposition in former times occasioned several disabilities and restrictions (which I shall not undertake to justify) to be laid upon them by
(w) By an ordinance, (Aug. 23, 1645,) which continued till the restoration, to preach, write, or print any thing in de rogation or depraving of the directory for the then established Presbyterian worship, subjected the offender, upon
indictment, to a discretionary fine, not exceeding fifty
abundance of statutes,(y) yet at length the legislature, with a spirit of true magnanimity, extended that indulgence to these sectaries which they them selves, 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. and 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 Anne, 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 reeusants, (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)(a) 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 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 [*54
make and subscribe the declaration prescribed by statute 19 Geo. III. c. 41, 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 those 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. & 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 senting 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 (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
() 23 Eliz. c. 1. 29 Eliz. c. 6. 35 Eliz. c. 1. 22 Car. II. c. 1.
(*) The ordinance of 1645 (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 shy private family.
(a) See stat. 8 Geo I. c. 6.
(*) 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 Tule of a Tub, under the allegory of Jack getting on a great horse and eating custard.
3 To constitute an offence 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 401. The act applies only where the thing is done wilfully and of purpose maliciously to disturb the congregation 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 found at sessions may be removed into King's Bench by prosecutor before verdict. 5 T. R. 542. 4 M. & S. 508.-CHITTY.
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.*
As to papists, what. has been said of the Protestant dissenters would hold *55] 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 relics 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 twentyone 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
The 13 & 14 Car. II. c. 1. 17 Car. II. c. 2, and 22 Car. II. c. 1, are repealed by the 52 Geo. III. c. 155, s. 1, by which all places of religious worship of Protestants must be certified to the bishop of the diocese, or the archdeacon of the archdeaconry, or to the justices at the general or quarter sessions, and shall be also registered; and a penalty to the amount of 207. and not less than 20s. may be inflicted for permitting meetings in places not so certified or registered; and, by sect. 4, every person teaching or preaching at, or being 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 10s.; 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 such declaration and give him a certificate thereof. By sect. 11, no place of public meeting for religious worship must have the doors fastened, so as to prevent persons entering therein during the time of such meeting, under a penalty to the teacher of not exceeding 207. nor less than 10s. By sect. 13, the act is not to affect the celebration of divine service, according to the rights of the Church of England and Ireland, by ministers of such church, in places before then used for that purpose, or licensed or consecrated by any person so to do, nor affect the jurisdiction of bishops or others exercising lawful authority in the church over the said church, according to the rules and discipline of the same and to the laws of the realm. And, by sect. 14, the act is not to extend to Quakers, nor to meetings convened by them, or in any manner to affect any act relating to them, except those expressly above repealed.—CHITTY.
By a still more important statute, (9 Geo. IV. c. 17,) the former acts which imposea the necessity of receiving the sacrament as a test or qualification for holding corporation offices and employments were repealed, and a declaration to be made within six months after admittance in lieu of the sacramental test is substituted; but the not making the declaration which is intended for the protection of the Protestant Church renders the appointment void.-STEWART.
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 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 100l.; 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 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 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, 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 & 12 W. 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 priest, 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, ard 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
(*) Stat. 23 Fliz. c. 1. 27 Eliz. c. 2. 29 Eliz. c. 6. 35 Eliz e. 2. 1 Jac. II. c. 4. 3 Jac. I. c. 4 and 5. 7 Jac. I. c. 6. 3 Car. 1. c. 3. 25 Car. 11. c. 2 30 Car. II. st. 2. 1 W. & M. c. 9, 15,
and 26. 11 & 12 W. III. c. 4.
12 Anne, st. 2, c. 14. 1 Geo 11 Geo. II. c. 17.