*

It is true that the sanctimonious hypocrisy of the canonists went at first no further than enjoining penance, excommunication, and ecclesiastical deprivation, for heresy; though afterwards they proceeded boldly to imprisonment by the ordinary, and confiscation of goods in pios usus. They prevailed also upon the weakness of bigoted princes, to render the civil power [55] subservient to their purposes, by making heresy not only a temporal, but even a capital offence; the Romish ecclesiastics determining, without appeal, whatever they pleased to be heresy, and shifting off to the secular arm the odium and drudgery of executions, with which they themselves were too tender and delicate to intermeddle. Nay, they pretended to intercede and pray, on behalf of the convicted heretic, ut citra mortis periculum sententia circa eum moderatur (m): well knowing at the same time that they were delivering the unhappy victim to certain death. Hence the capital punishments inflicted on the ancient Donatists and Manichæans by the Emperors Theodosius and Justinian (n): hence also the constitution of the Emperor Frederic mentioned by Lyndewode (0); adjudging all persons without distinction to be burnt with fire, who were convicted of heresy by the ecclesiastical judge. The same emperor, in another constitution (p), 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 afterwards expelled the Emperor Frederic from his kingdom of Sicily, and gave it to Charles of Anjou (g).

Christianity being thus deformed by the demon of persecution upon the continent, we cannot expect that our *own island should be entirely free from the same scourge. And accordingly we find among our [*56] ancient precedents (r) 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 temporal power: 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 sovereign in council (s).

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 Lollardy (t)), took root in this kingdom, the clergy, emboldened by the king's dubious title to amend an increase of their own power,

(m) Decretal. 1. 5, t. 40, c. 27.

(n) Cod. 1. 1, tit. 5.

(0) Cap. de Hæreticis.

(p) Cod. 1, 5, 4.

(9) Baldus in Cod. 1, 5, 4.

(r) F. N. B. 269.

() 1 Hale, P. C. 395.

(t) So called, not from lolium, or tares, (an etymology which was afterwards devised 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. Ducange, Gloss, ad verb. Lollardi.

obtained an act of parliament (u), 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. 5, c. 7, Lollardy was afterward made a temporal offence, and indictable in the king's courts; which did not thereby gain an exclusive jurisdiction, but one concurrent with the bishop's consistory.

Afterwards, when the final reformation of religion *began to [*57] advance, the power of the ecclesiastics was somewhat moderated: for though what heresy is, was not then precisely defined, we are told in some points what it is not: the statute 25 Hen. 8, c. 14, declaring offences against the see of Rome not to be heresy; and the ordinary being thereby restrained from proceeding in any case upon mere suspicion; that is, unless the party were accused by two credible witnesses, or an indictment of heresy were first found in the 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 afterwards, by statute 31 Hen. 8, 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 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 burnt with fire; and of the five last 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. By statute 1 Eliz. c. 1, all former enactments relating to heresy were repealed, the jurisdiction as to heresy being left as it stood at common law; viz., as [*58] *regarded the infliction of common censures, in the ecclesiastical courts; and, in case of burning the heretic, in the provincial synod only (x). 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 discretion of the crown (y). The principal point, however, now gained was, that by this statute a boundary was for the first time set to what should be accounted heresy; nothing for the future being to be so determined, but only such tenets, which had been theretofore so declared: 1. By the words of the canonical scriptures; 2. By the first (y) 1 Hale, P. C. 405.

(u) 2 Hen. 4, c. 15.

(x) The Case of Heresy, 5 Rep. 23; Writ de hæretico comburendo, 12 Rep. 92.

four general councils, or such others as had only used the words of the holy scriptures; or, 3. Which should thereafter be so declared by 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 precise and particular: as a man continued still liable to be burnt, for what perhaps he did not understand to be heresy until 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 upon two Arians in the ninth of James I. But it was totally abolished, and heresy again subjected only to ecclesiastical correction pro salute animæ, by virtue of the statute 29 Car. 2, c. 9. For in one and the зame reign, our lands were delivered from the slavery of military tenures (z), our bodies from arbitrary imprisonment on criminal charges by the habeas corpus act (a), and our minds in some measure from the tyranny of superstitious bigotry, by demolishing this horrible and especial badge of persecution in the English law.

[* 59]

From this period heresy was dispunishable by our law, until the legislature thought proper that the civil magistrate should again interpose, with regard to a species of it, at one time prevalent; for the statute 9 & 10 Will. 3, c. 32 (b), enacted that 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 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. But this enactment, so far as it affected persons denying the holy Trinity, was repealed by the 53 Geo. 3, c. 160, s. 2 (c).

III. Nonconformity.

III. Of laws against catholics and protestant dissenters the most penal and obnoxious have, since the latter part of the seventeenth century, been gradually mitigated and repealed, so that dissent from the doctrines and ordinances of our established church has ceased to be in any degree punishable or penal, provided that certain statutory requirements, by no means stringent in their nature, be complied with. It will be unnecessary, therefore, to exhibit in minute detail the long course of legislation in reference to nonconformists; a brief allusion to some especial portions of it may suffice.

The penal statutes formerly enacted in regard to Roman catholics must be accounted for by the urgency of the times at which they originated. 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, *induced the parliament to counteract so dangerous a spirit by [*60] severely penal laws. The 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

(2) 12 Car. 2, c. 24.

(a) 31 Car. 2, c. 2.

(b) Sect. 1.

(c) See R. v. Waddington, 1 B. & C. 26; R. v. Carlile, 3 B. & Ald. 161.

VOL. II.47

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-plo 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 infliction of such penalties at those several periods of our history.

In order the better to secure the church of England-re-established on the accession of Queen Elizabeth by the Acts of Supremacy and Uniformity (d)— against perils from nonconformists, jews, catholics, and other sectaries, two bulwarks were during the reign of Charles II. erected. By the Corporation Act (e), no person could be legally elected to any office relating to the government of any city or corporation, unless, within a twelvemonth previously, he had received the sacrament of the Lord's Supper according to the rites of the church of England; he was also enjoined to take the oaths of allegiance and supremacy at the same time that he took the oath of office: and, in default of either of these requisites, such election was avoided. By the Test Act (f), all officers, civil and military, were directed to take the oaths, and make the declaration against transubstantiation, in any of the 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 [* 61] church immediately after divine service, to deliver into court a certificate thereof signed by the minister and churchwarden, and also to prove the same by two credible witnesses; upon forfeiture of 500l. and disability to hold the said office.

These enactments necessarily excluded as well catholic as protestant nonconformists from civil and military offices, and their operation was afterwards extended by the statutes below cited (g).

The penal laws directed against papists might formerly have been divided into three classes: 1. Those which concerned lay persons professing popery; 2. Those which concerned popish recusants convict; and, 3. Those which concerned popish priests. 1. Persons professing the popish religion, besides being subject to penalties for not frequenting their parish church, were disabled from taking land either by descent or purchase, after eighteen years of age, until they renounced their errors: they were required at the age of twenty-one to register their estates, and all future conveyances and wills relating to them; they were incapable of presenting to any advowson, or granting to any other person any avoidance of the same; they could not keep or teach any school under pain of perpetual imprisonment; and if they said or heard mass, they incurred pecuniary penalties and imprisonment. Moreover, if any person sent another abroad to be educated in the popish religion, or to reside in any religious house abroad for that purpose, or contributed to his maintenance when there; the sender, the sent, and the contributor, were each 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 incurred a forfeiture

(d) 1 Eliz. cc. 1 & 2. The clause (sect. 14) in the latter act rendering compulsory attendance at the parish church, and similar clauses of the 3 Jac. 1, cc. 1 & 4, were repealed by the 7 & 8 Vict. c. 102, and 9 & 10 Vict. c. 59.

(e) Stat. 13 Car. 2, st. 2, c. 1.

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

(g) 1 Geo. 1, st. 2, c. 13; 2 Geo. 2, c. 31; 9 Geo. 2, c. 26.

*

of goods and chattels, and of real estate for life. And where these errors were aggravated by apostasy, or perversion, where a person was himself reconciled, or procured others to be reconciled, to the see of Rome, the offence [* 62 ] amounted to high treason. 2. Popish recusants, convicted in a court of law of not attending the service of the church of England, were subject to the following disabilities, penalties, and forfeitures, over and above those before mentioned. They were considered as persons excommunicated; they could hold no office or employment; they were forbidden to keep arms in their houses, and the same, if kept there, might be seized by justices of the peace; they could not come within ten miles of London, on pain of 100%.; they could bring no action at law, or suit in equity; they were not permitted to travel above five miles from home, unless by licence, upon pain of forfeiting their goods; and they might not come to court under pain of 1001. No marriage or burial of such recusant, or baptism of his child, could be had otherwise than by the ministers of the church of England, under other severe penalties. A married woman, when recusant, forfeited two-thirds of her dower or jointure, could not be executrix or administratrix to her husband, nor have any part of his goods; and during the coverture might be kept in prison, unless her husband redeemed her at the rate of 107. a month, or the third part of all his lands. And, lastly, as a feme-covert recusant might be imprisoned, so all others must, within three months after conviction, either have submitted and renounced their errors, or, if required so to do by four justices, must have abjured and renounced the realm: and if they did not depart, or if they returned without licence from the crown, they incurred the guilt of felony, and were liable to incur death as felons. There was also an inferior species of recusancy, (refusing to make the declaration against popery, enjoined by statute 30 Car. 2, st. 2, when tendered by the proper magistrate,) which, if the party resided within ten miles of London, made him an absolute recusant convict; or, if at a greater distance, suspended him from having any seat in parliament, keeping arms in his house, or any horse above the value * of [*63] five pounds. This was the state, by the laws once in being (h), of a lay papist. But, 3. Popish priests were in a still more dangerous condition. For by statute 11 & 12 Will. 3, c. 4, popish priests or bishops, celebrating mass, or exercising any part of their functions in England, except in the houses of ambassadors, were 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 should come over hither from beyond sea (unless driven by stress of weather, and tarrying only a reasonable time (i)), or should be in England three days without conforming and taking the oaths, was guilty of high treason: and all persons harbouring him were guilty of felony, and were capitally punishable.

This is a short summary of the laws formerly in force against the papists, under their three several classes, of persons professing the popish religion, popish recusants convict, and popish priests. Concerning which the President Montesquieu observed (k), that they were so rigorous, though not pro

(h) Stats. 23 Eliz. c. 1; 27 Eilz. c. 2; 29 Eliz. c. 6; 35 Eliz. c. 2; 1 Jac. 1, c. 4; 3 Jac. 1, cc. 4 & 5; 7 Jac. 1, c. 6; 3 Car. 1, c. 3; 25 Car. 2, c. 2; 30 Car. 2, st. 2; 1 W. & M. cc. 9, 15, and 26; 11 & 12 Will. 3, c. 4; 12 Ann. st.

2, c. 14; 1 Geo. 1, st. 2, c. 55; 3 Geo. 1, c. 18;
11 Geo. 2, c. 17.

(i) Raym. 377; Latch, 1.
(k) Sp. L. b. 19, c. 27.