[*55 ] Reasons why a similar toleration cannot be extended to papists. But by statute 5 Geo. I. c. 4, no mayor or principal magistrate, must appear at any dissenting meeting with the ensigns of his office (a), 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 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 established by the laws of this kingdom.. 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 relicks and (a) Sir Humphry 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. till the next general or quarter sessions; An indictment on this statute may be n. (4), must be registered, but it seems immaterial whether the officiating minister has qualified or not; Rex v. Hale, Peake, 132; 5 T. R. 542. The statute has been held to extend to a congregation of foreign Lutherans; ibid. Where, in a contest for the situation of clerk, one clerk pulled another from the desk, it was held within the statute; ibid. By stat. 31 Geo. III. c. 30, s. 10, similar protection is given to roman catholics. 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. of papists de. laws affecting Let us therefore now take a view of the laws in force The three classes against the papists; who may be divided into three classes, fined, and the persons professing popery, popish recusants convict, and each reviewed. 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 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 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 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 [*56 ] London, on pain of 100%.; 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 100%. 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 licence, they shall be guilty of felony, and suffer death as felons without 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 [*57] 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 (b), 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 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 (c), or shall be in England three days without conforming and (b) Stat. 23 Eliz., c. 1; 27 Eliz, c. 2; 29 Eliz., c. 6; 35 Eliz., c. 2; I Jac. I., c. 4; 3 Jac. I., c. 4 & 5; 7 Jac. I., c. 6; 3 Car. I., c. 3; 25 Car. II., c. 2; 30 Car. II., st. 2; 1 W. & M., c. 9, 15, & 26; 11 & 12 W. (c) Raym. 377; Latch. 1. taking the oaths, is guilty of high treason: and all persons harbouring him are guilty of felony without the benefit of clergy. enactment of fended: the pro ing their rigour This is a short summary of the laws against the papists, The original under their three several classes, of persons professing the those laws depopish religion, popish recusants convict, and popish priests. priety of soften Of which the president Montesquieu observes (d), that they considered. 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 1 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 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 (d) Sp. L. b. 19, c. 27. How far those laws have been already miti gated. 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. 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 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 (7) (8). (7) But now by the stat. 31 Geo. III., c. 32 (amended and explained by 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. Of 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 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 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 no such place of assembly shall have its doors locked or barred during the time of meeting or divine worship. And 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. But every minister, who has qualified, shall be exempt from serving upon juries, and from being elected into any parochial office. 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. & M. And if any person disturb a congregation allowed under this act, he shall, as for disturbing a dissenting meeting, |