« EdellinenJatka »
succession of the queen of Scots, obliged the parliament to counteract so dan. gerous a spirit by laws of a great, and then perhaps necessary, severity. The *58] powder-treason in the succeeding reign struck a panic into *James I., which operated in different ways: it occasioned the enacting of new laws against the papists, but deterred him from putting them in 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 shall 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 inclination of the civil magistrate, and to the destruction of every principle of toleration and religious liberty.
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 & 12 W. 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 is repealed so far as it disables them from purchasing or inheriting, or authorizes the apprehending or prosecuting the popish clergy, or subjects to perpetual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 But now, by the statute 31 Geo. III. c. 32, (amended and explained by the 43 Geo. III. c. 30,) which may be called the toleration act of the Roman Catholics, all the severe and cruel restrictions and penalties enumerated by the learned judge are removed from those Roman Catholics who are willing to comply with the requisitions of that statute, which are that they must appear at some of the courts of Westminster, or at the quarter-sessions held for the county, city, or place where they shall reside, and shall make and subscribe a declaration that they profess the Roman Catholic religion, and also an oath, which is exactly similar to that required by the 18 Geo. III. c. 60, the substance of which is stated above in the text. On this declaration and oath being duly made by any Roman Catholic, the officer of the court shall grant him a certificate; and such officer shall yearly transmit to the privy council lists of all persons who have thus qualified themselves within the year in his respective court. The statute (sect. 4) then provides that a Roman Catholic thus qualified shall not be prosecuted under any statute for not repairing to a parish church, nor shall he be prosecuted for being a papist, nor for attending or performing mass or other ceremonies of the Church of Rome; provided (by sect. 5) that no place shall be allowed for an assembly to celebrate such worship until it is certified to the sessions; nor shall any minister officiate in it until his name and description are recorded there. And (by sect. 6 of 31 Geo. III. c. 32) no such place of assembly shall have its doors locked or barred during the time of meeting or divine worship.
If any Roman Catholic whatever is elected constable, church-warden, overseer, or into any parochial office, he may execute the same by a deputy, to be approved as if he were to act for himself as principal. Id. s. 7. But every minister who has qualified shall be exempt from serving upon juries and from being elected into any parochial office. Id. s. 8. And all the laws for frequenting divine service on Sundays shall continue in force, except where persons attend some place of worship allowed by this statute or the toleration act of the dissenters. 1 W. and M. s. 1, c. 18. Id. s. 9.
If any person disturb a congregation allowed under this act, he shall, as for disturbing a dissenting meeting, be bound over to the next sessions, and, upon conviction there, shall forfeit twenty pounds. Sect. 10.
But no Roman Catholic minister shall officiate in any place of worship having a steeple and a bell, or at any funeral in a church or churchyard, or shall wear the habits of his order, except in a place allowed by this statute, or in a private house, where there shall
In order the better to secure the established church against perils from nonconformists of all denominations, infidels, Turks, Jews, heretics, papists, and sectaries, there are, however, two bulwarks erected; called the corporation and test acts 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 elec[*59 tion 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
() Stat. 13 Car. II. st. 2, c. 1.
(#) Stat. 25 Car. II. c. 2, explained by 9 Geo. II. c. 26.
not be more than five persons besides the family. Id. s. 11. This statute shall not exempt Roman Catholics from the payment of tithes or other dues to the church; nor shall it affect the statutes concerning marriages, or any law respecting the succession to the crown. Id. s. 12. No person who has qualified shall be prosecuted for instructing youth, except in an endowed school, or a school in one of the English universities; and except, also, that no Roman Catholic schoolmaster shall receive into his school the child of any Protestant father, (id. ss. 13, 14, 15;) nor shall any Roman Catholic keep a school until his or her name be recorded as a teacher at the sessions. Id. s. 16.
But no religious order is to be established; and every endowment of a school or college by a Roman Catholic shall still be superstitious and unlawful. Id. s. 17. And no person henceforth shall be summoned to take the oath of supremacy and the declaration against transubstantiation. Id. s. 18. Nor shall Roman Catholics who have qualified be removable from London to Westminster, (id. s. 19;) neither shall any peer who has qualified be punishable for coming into the presence or palace of the king or queen. Id. s. 20. And no papist whatever shall be any longer obliged to register their names and estates, or enrol their deeds and wills. Id. s. 21. And every Roman Catholic who has qualified may be permitted to act as a barrister, attorney, and notary. Id. s. 22.
By the 43 Geo. III. c. 30, Roman Catholics taking the oath and making the declaration prescribed by 31 Geo. III. c. 32 shall be entitled to all the benefits given by 10 Geo. III. c. 60, as fully as if they had taken the oath therein prescribed,
The Roman Catholics cannot sit in either house of parliament, because every member of parliament must take the oath of supremacy, and repeat and subscribe the declaration against transubstantiation, (see 1 book, 162;) nor can they vote at elections for the members of the house of commons, because before they vote they must take the oath of supremacy. Ibid. 180.
The Roman Catholics in Ireland are permitted to vote at elections, but they cannot sit in either house of parliament.
A bequest or disposition for the purpose of educating children in the Roman Catholic religion is unlawful. But the fund will not pass to the testator's next of kin, but it shall be applied to such charitable purposes as his majesty shall please to direct by his signmanual. 7 Ves. Jr. 490.-CHRISTIAN.
By 43 Geo. III. c. 30, all Roman Catholics who shall take and subscribe the declaration and oath specified in the 31 Geo. III. c. 32 are as fully entitled to the benefits of the 18 Geo. III. c. 60 as if the oath prescribed by that act had been taken.
53 Geo. III. c. 128 provides certain rules as to taking commissions in the army, and relieves Roman Catholics from the restrictions and penalties contained in 25 Car. II. c. 2. -CHITTY.
By stat. 10 Geo. IV. c. 7, almost all disabilities are removed from persons professing this religion. Roman Catholics now enjoy all the privileges attached to property which are enjoyed by their fellow-subjects.-STEWART.
By the 5 Geo. I. c. 6, s. 3, the election into a corporate office shall not be void on account of the person elected having omitted to receive the sacrament within a year before the election, unless he shall be removed within six months after his election, or unless a prosecution be commenced within that time, and be carried on without delay; and during that time the office is not void, but only voidable; and the person elected, until a removal or prosecution within the time limited, is entitled to all the incidental rights of his office in as full an extent as if he had actually received the sacrament within a year previous to his election. 2 Burr. 1016.-CHITTY.
'The 25 Car. II. c. 2—the original test act-required that both the sacrament and the
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 minis ter 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 person to be naturalized or restored in blood but such as undergo a like test: which test having been removed in 1753, in favour 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 governments must depend for support, and correct more for the sake of example than private amendment.
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. Whither 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; (h) for Christianity is part of the laws of England.(i)
V. Somewhat allied to this, though in an inferior degree, is the offence of *60] profane and common swearing and *cursing. By the last statute against which, 19 Geo. II. c. 21, which repeals all former ones, every labourer, sailor, or soldier profanely cursing or swearing shall forfeit 1s.; 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
oaths should be taken within three months; and, by subsequent statutes, the time for taking the oaths has been enlarged to six months; but the time for taking the sacrament remains unaltered, which must still be taken within three months after admission into the office. And, by several statutes subsequent to the test act, various descriptions of persons, whose offices are not considered civil or military, are required to take the oaths within six months after their respective appointments, though they are not required to take the sacrament. Among these are all ecclesiastical persons promoted to benefices, members of colleges who have attained the age of eighteen years, teachers of scholars or pupils, dissenting ministers, high constables, and practisers of the law. 1 Geo. I. st. 2, c. 13. 2 Geo. II. c. 31. 9 Geo. II. c. 26.-CHRISTIAN.
But before the end of every session of parliament an act is passed to indemnify all persons who have not complied with the requisition of the corporation and test acts, provided they qualify themselves within a time specified in the act; and provided also that judgment in any action or prosecution has not been obtained against them for their former omission.-CHRISTIAN.
It is not lawful even to publish a correct account of the proceedings in a court of justice if it contain matter of a scandalous, blasphemous, or indecent nature, (3 B. & A. 167;) and a publication stating our Saviour to be an impostor, and a murderer in principle, and a fanatic, is a libel at common law. 1 B. & C. 26. The general law as to this offence, as collected from 2 Stra. 834, Fitzg. 64, Barn. R. 162, is that it is illegal to write against Christianity in general; that it is also illegal to write against any one of its evidences or doctrines, so as to manifest a malicious design to undermine it altogether; but that it is not illegal to write, with decency, on controverted points, whereby it is pos ible some articles of belief may be affected.-CHITTY.
and there convict him.10 If the justice omits his duty he forfeits 51., 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 5l., to be levied by war rant from any justice." 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 stageplay, interlude, or show, the name of the Holy Trinity, or any of the persons 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 antient books are full, is a crime of which one knows not well what account to give. I mean the offence of witchcraft, conjuration, enchantment, 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 penal; rank[*61 ing this crime in the same class with heresy, and condemning both to the flames.() 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,(n) that in general there has been such a thing as witchcraft; though one cannot give credit to any particular modern instance of it.
Our forefathers were stronger believers when they enacted, by statute 33 Hen. VIII. c. 8, all witchcraft and sorcery to be felony without benefit of clergy; and again, by statute 1 Jac. I. c. 12, that all persons invoking any evil spirit, or consulting, covenanting with, entertaining, employing, feeding, or rewarding, any evil spirit; or taking up dead bodies from their graves to be used in any witchcraft, sorcery, charm, or enchantment; or killing or otherwise hurting any person by such infernal arts, should be guilty of felony without benefit of clergy, and suffer death. And if any person should attempt by sorcery to discover hidden treasure, or to restore stolen goods, or to provoke unlawful love, or to hurt any man or beast, though the same were not effected, he or she should suffer imprisonment and pillory for the first offence, and death for the second. These acts continued in force till lately, to the terror of all antient females in the kingdom and many poor wretches were sacrificed thereby to the prejudice of their neighbours and their own illusions; not a few having, by some means or other, confessed the fact at the gallows. But all executions for this dubious crime are now at an end; our legislature having at length followed the wise
10 The conviction must be within eight days after the offence. 12. Each oath or curse being a distinct complete offence, there can be no question, I conceive, but a person may incur any number of penalties in one day,-though Dr. Burn doubts whether any number of oaths or curses in one day amounts to more than one offence. 3 Burn, 325. Persons belonging to his majesty's navy, if guilty of profane cursing and swearing, are liable to suffer such punishment as a court-martial shall think proper to inflict. 22 Geo. II. c. 33.-CHITTY.
"By the 4 Geo. IV. c. 31, this latter provision is repealed.-CHITTY. VOL. II-24
*62] example of *Louis XIV. in France, who thought proper, by an edict, to restrain the tribunals of justice from receiving informations of witchcraft.(0) And accordingly it is with us enacted, by statute 9 Geo. II. c. 5, that no prosecution shall for the future be carried on against any persons for conjuration, witchcraft, sorcery, or enchantment. But the misdemeanour of persons pretending to use witchcraft, tell fortunes, or discover stolen goods, by skill in the occult sciences, is still deservedly punished with a year's imprisonment, and standing four times in the pillory."2
VII. A seventh species of offenders in this class are all religious impostors : such as falsely pretend an extraordinary commission from heaven, or terrify and abuse the people with false denunciations of judgments. These, as tending to subvert all religion by bringing it into ridicule and contempt, are punishable by the temporal courts with fine, imprisonment, and infamous corporal punishment.(p)
VIII. Simony, or the corrupt presentation of any one to an ecclesiastical benefice for gift or reward, is also to be considered as an offence against religion; as well by reason of the sacredness of the charge which is thus profanely bought and sold, as because it is always attended with perjury in the person presented.(q) The statute 31 Eliz. c. 6 (which, so far as it relates to the forfeiture of the right of presentation, was considered in a former book)(r) enacts that if any patron, for money or any other corrupt consideration or promise, directly or indirectly given, shall present, admit, institute, induct, instal, or collate, any person to an ecclesiastical benefice or dignity, both the giver and taker shall forfeit two years' value of the benefice or dignity; one moiety to the king, and the other to any one who will sue for the same. If persons also corruptly resign or exchange their benefices, both the giver and taker shall in like manner forfeit double the value of the money or other corrupt consideration." And *63] persons who shall corruptly ordain or license any minister, or procure him to be ordained or licensed, (which is the true idea of simony,) shall incur a like forfeiture of forty pounds; and the minister himself of ten pounds, besides an incapacity to hold any ecclesiastical preferment for seven years afterwards. Corrupt elections and resignations in colleges, hospitals, and other eleemosynary corporations, are also punished by the same statute with forfeiture of the double value, vacating the place or office, and a devolution of the right of election for that turn to the crown.15
IX. Profanation of the Lord's day, vulgarly (but improperly) called sabbath
() Voltaire, Siecl. Louis XIV. ch. 29. Mod. Un. Hist. xxv. 215. Yet Voughlans (de droit criminel, 353, 459) still reckons up sorcery and witchcraft among the crimes punishable in France.
(P) 1 Hawk. P. C. 7.
(9) 3 Inst. 156.
(7) See book ii. p. 279.
12 By the vagrant act, (5 Geo. IV. c. 8, s. 4,) persons pretending or professing to tell fortunes, or using any subtle craft, means, or device, by palmistry, or otherwise, to deceive and impose on any of his majesty's subjects, are rogues and vagabonds.— CHITTY.
13 But, according to 2 Bla. Rep. 1052, 1 Ld. Raym. 449, Moore, Rep. 564, simony is not an offence criminally punishable at common law.-CHITTY.
Any resignation or exchange for money is corrupt, however apparently fair the transaction: as where a father, wishing that his son in orders should be employed in the duties of his profession, agreed to secure, by a bond, the payment of an annuity exactly equal to the annual produce of a benefice, in consideration of the incumbent's resigning in favour of his son. The annuity being afterwards in arrear, the bond was put in suit, and the defendant pleaded the simoniacal resignation in bar; and lord Mansfield and the court, though they declared that it was an unconscientious defence, yet, as the resignation had been made for money, determined that it was corrupt and simoniacal and in consequence that the bond was void. Young vs. Jones, E. T. 1782.-CHRISTIAN. 15 By stat. 9 Geo. IV. c. 94, bonds of resignation of any benefice in favour of a son, grandson, brother, uncle, nephew, or grand-nephew, upon notice or request, are rendered valid, notwithstanding the 31 Eliz. c. 6; but the new act is not to extend to any engagements unless the deed be deposited within two months with the registrar of the diocese or peculiar jurisdiction wherein the benefice is situated. The passing of this act, it is believed, arose out of the fluctuating and contradictory decisions of our courts upon the subject.-CHITTY.