Page images

purity, should be admitted by an ancient rival ; it would appear to be of little importance to the established faith, whether it were proscribed as heretical and erroneous, until her exasperated rival had acquired power proportionate to her will to exact the penalty due to heresy and error. By those who proclaim the Romish See, as idolatrous, imbecile, and corrupt, it might be supposed her anathemas would be regarded as mere “bruta fulmina,” which the naturalist justly describes as “vana; quæ nulla veniunt ratione naturæ, omnesque irriti jactus.” It may be, however, some consolation to the holy advocates for the perpetuity of those penal laws, which are of native growth, that however “ready they may be to be offered up;" like the apostle; however disposed to "give their body to be burned, in that charity which profiteth” to the attainment of beatitude; their patient resignation in suffering is fortunately not likely to be brought to the test of martyrdom. The Church of Rome is so far from arrogating the right of interfering in the secular arrangements even of those nations which enter her communion, and recognise her authority, that she has often disavowed the intention.* And whatever faith may be (11) reposed in her professions; in the tender mercies visited on heretics, she has had atleast the address, to transfer the odium of the capital sentence, and the infamy of the execution, to the secular power. * If the flames of persecution, are therefore likely to be rekindled in this country, by the concession of the R. Catholic claims, it may be consolatary to know, that when the land receives the unction, and the nidor is inhaled, of a human holocaust, it must be by the deliberate sentence of the legislative authority, and under the sign manual of the executive. sionibus, et ideo militans Deo minime se negotiis sæcularibus implicaret ; ac vicissim non ille rebus divinis præsidere videretur, qui esset sæcularibus implicatus.

* It is a vulgar error to suppose the Pope claims any right of interfering in the civil administration of independent states, or exercises any right of inflicting secular punishment, upon the most stubborn offenders against his spiritual authority ; this is fnlly conceded in a canon of P. Nicholas I. which was framed in reply to the demand for an explicit declaration, on the

subject of the regal supremacy. Distinct. X. can. viii. “ Quoniam idem Mediator Dei et hominum, homo Christus Jesus, sic actibus propriis, et dignitatibus distinctis, officia Potestatis utriusque discrevit propria, ...... ut et Christiani Imperatores pro æterna vita Pontificibus indigerent, et Pontifices, pro cursu temporalium tantummodo rerum, imperialibus legibus uterentur, quatenus spiritualis actio a carnalibus distaret incur

* After the precedent of the pagan Emperors who persecuted. the Christians, the first imperial converts to Christianity inflicted capital punishment on those heretics who retained the writings, and adhered to the tenets of Arius, Nestorius, and Porphyry ; vid. Socrat. Hist. Eccl. I. ix. Cod. Theod. tit. de hæret. Cod. Just. Lib. I. tit. i. 3. tit. v. 6. Our own princes and parliament, following their godly example, passed many acts against heretics, as 3 Rich. II. S. 1. c. 6. 2 Hen. V. c.7. 25 Hen. VIII. c. 14. &c. the sentence of burning having been decreed against them by 2 Hen. IV. c. 15. The German and English canonists derive the summary method, thus employed in disposing of them, not from the canon of some intolerant Pope, but from a contitution of the Emperor Frederick II. Vid. Pertsch. El. Jur Can. Lib. IV. tit. iv. $ ccciii. Lyndw. cap. de hæret. to whose sentence may be added that of our municipal lawyers; vid. Blackst. Com. IV. iv. 2. We are informed by this great legal luminary, Ibid. iv. 2. “ We find among our ancient precedents a writ de comburendo hæretico, which is by some thought to be as ancient as the common law itself. However it appears from thence, that the conviction of heretics 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 king to do as he should please with him : so that the crown had a controul over the spiritual power, and might pardon the convict by issuing no process against him; the writ de cumberendo hæretico being not a writ of course, but issuing only by the special direction of the king in council,"

To pass from these absurdities, and come within a rational view of the subject; some definitive notion of it may be acquired, and possibly, a true estimate formed, on which of the opposed parties, the imputation of an intolerant and persecuting spirit may be most justly charged; and in whose hands alone, it is armed with those powers which afford the only rational grounds of complaint or apprehension. I shall offer a summary view of the penal laws, from which emancipation is sought; presenting them, in the description of a writer, who possessed the fullest knowledge of the subject; and who will not be justly blamed for overcharging his coloring, through any mistaken tenderness, or honest indignation, at their injustice and oppressiveness. Whatever be the impression conveyed by the annexed review of the penal code by the hand of Sir W, Blackstone; it will atleast determine, how far the clerical body, which unite in opposing its abrogation, can justify their own consistency, in branding the body whom it affects, with the reproach of intolerance and persecution : unless, indeed, they claim the benefit arising from the plea of a profound ignorance of those claims, against which they set themselves in array. “Ita utrumque ex altro redarguimus: et ignorare illos dum oderunt, et injuste odisse dum ignorant."

“Let us therefore now” observes the judge, in culling his scattered sweets,* “ 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 by several statutes, too numerous to be here recited, disabled from taking any lands either by descent or purchase, after

* Blackst. Com. IV. iv. 1.

ces persons, whiler a yeathe

eside in to be s upon

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, in prejudice of the two universities; they may not keep or teach any school under pain of perpetual imprisonment; they are liable also in some instances to pay double taxes; 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 it's 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 any thing 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 apostacy, or perversion, where a person is reconciled to the See of Rome or procures 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 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 1001 ; they can bring no action at law, or suit in equity ; they are not permitted to travel above five miles from home, unless by licence upon pain of forfeiting all their goods; and they may not come to court, under pain of 1001. 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 a. man, when recusant, shall forfeit two thirds of her dower or jointure, may not be executrix or administratni to her husband, nor have any part of his goods ; and during the coverture may be kept in prison, unless ber husband redeems her at the rate of ten pounds 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 licence, they shall be guilty of felony, and suffer death as felons. There is also an interior species of recusancy, (refusing to make the declaration against po: pery 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, of a lay papist. But, 3. The remaining species or degree, viz, popish priests, are in a still more dangerous condition. By statute 11 & 12 W. III. c. 4. popish priests or bishops, celebrating mass or exercising any parts 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 sea, 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.

To have a true relish of this sketch of the rights and immunities of a considerable class of society, it would be necessary to peruse the description given by the same faithful hand, through the whole of the work, of the rights and privileges of a British subject. It, however, requires no comment to do it justice. I appeal, not to the heart, but to the

« PreviousContinue »