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mistaken or per
hinted at in a former volume (w), 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 shewn 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 con- [*52 ) science, to the scruples of which our present laws have shewn 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 indulgence 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 at tend the service of no other persuasion. These by the statutes of 1 Eliz c. 2.23 Eliz. c. 1. and 3 Jae. I. c. 4. forseit one shilling to the poor every Lord's day they so absent themselves, and 201. to the king is they continue such default for a month together. And if they keep any inmale, thus irreligiously disposed, in their houses, they forseit 101. per month. The second species of non-conformists are those who offend through a
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 communi. cating 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 establishinent, 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 [*53 ] be better effected, by admilling none but its genuine members to offices of trust and emolument, he is certainly at liberty so to do: the dis. posal of offices being matter of favour and discretion. But, this point being once secured, all persecution for diversity of opinions, however ridi. culous or absurd they may be, is contrary to every principle of sound policy and civil freedom. The names and subordination of 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 protestani dissenters, although the experience of chuir turbulent disposition in former times occasioned several disabilities and restrictions (which I shall not undertake to justify) to be laid upon them hy abundance of statutes (), yet at length the legislature with a
(m) Book I. p. 8.
spirit of true magnanimity, extended that indulgence to these sectaries, which they themselves, when in power, had held to be countenancing schism, and denied to the church of England (y). The penalties are conditionally suspended by the statute 1 W. & 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 Ann. 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 recusants (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) (2) and subscribe the declaration against popery ; 2. that they repair to some congregation certified to and registered in the court of the bishop or urchdeacon, or at the county sessions ; 3. that the doors of such meeting
house shall be unlocked, unbarred, and unbolted ; in default of [ *54 ] which the persons' meeting there are still liable to all the penal
ties of the former acts. Dissenting teachers, in order to be ex. empted from the penalties of the statutes 13 & 14 Car. 11. 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 make and subscribe the declaration prescribed by statute 19 Geo. III. c. 44. 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 sus. pended 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 (6). 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 legis. lature pudging it a matter of propriety, that a mode of worship, sei up ir: 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 (un less 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 schooi, unless they be licensed by the ordinary, and subscribe a [ *55] declaration of conformity to the liturgy of the church, and reverently frequent divine service, established by the laws of this kingdom (7).
(y) The ordinance of 1645 (before cited) inflicted (a) Sir Humphrey Edwin, a lord mayor of Lom Irr.prisonment for a year on the third offence, and don, had the imprudence soon after the toleration pecuniary penalties on the former two, in case of act to go to a presbyterian meeting house in his using the book of common prayer not only in a place formalities ; which is alluded to by Dean Swift, 10 of public worship, but also in any private family. his tale of a tub, under the allegory of Jack getting (z) See stat. & Geo. I. c. 6.
on a great horse, and eating custard, (6) To constitute an offence within this tion, or misuse the preacher, per Abbott, C act, the party must come into the place of wor. J. 2 B. & C. 699. sed vid. Peake R. 132. ship. See 5 T. R. 542. The enactment is 5 T. R. 542. Each defendant is liable to the repeated, without the words, "come into," in penalty. 5 T. R. 542. An indictment found che 52 Geo. III. c. 155. s. 12, which irnposes at sessions may be removed into K. B. by che heavier penalty of 401. The act applies prosecutor before verdict. 5 T. R. 542 only where the thing is done wilfully and of M. & S. 508. purpose, maliciously lo disturb the congrega
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 reliques 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 ра pists; who may be divided into three classes, persons prosessing 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 eighten 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
(7) The 13 & 14 Car. II. c. 1, (ar. II. residence to take such oath. And by sect. 6 c. 2. and 22 Car. II. c. 1, are repealed hy the such person may compel a justice to adminis. 52 Gco. III. c. 155. s. I. by which all places of ter such oath to him, and to attest his sub religious worship of protestants must be cer scription to such declaration, and give him a tified to the bishop of the diocese, or the arch- certificate thereof. By sect. 1. no place of deacon of the archdeaconry, or to the justices public meeting for religious worship must at the general or quarter sessions, and shall have the doors fastened, so as to prevent per be also registered, and a penalty to the amount sons entering therein during the time of such of 201. and not less than 20s. may be inflicted meeting, under a penalty to the teacher of not fo. permitting meetings in places not so certi- exceeding 201. nor less than 10s. By sect. fied or registered. And by sect. 4. every per. 13. the act is not to affect the celebration of son teaching or preaching at, or being in, such divine service, according to the rights of the place so certified, is exempted from penalties, church of England and Ireland, by ministers as a person who has taken the oath, and made of such church, in places before then used for the declaration prescribed by the 1 W. & M. that purpose, or licensed or consecrated by st. 1. c. 18. or any act amending the same. any person so to do, nor affect the jurisdiction By soct. 5. every one preaching or teaching at of bishops, or others exercising lawful anthosuch place so certified, shall, when required rity in the church, over the said church, acbry a magistrale, take and subscribe the oath cording to the rules and discipline of the saine, and declaration specified in the 19 Geo. III. c. and to the laws of the realm. And hy sect. 44. and i he refuse to take it. he must not 14. the act is not to extend to quakers, nor to teach or preach, under a penalty of not ex. meetings convened by them, or in any manner ceeding 10l. nor less than 10s ; but he need to affect any act relating to them, except those cot go more than five miles from his place of expressly above repealed
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 con[ *56 ] tributes 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 gist, 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 artending 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 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 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 101. a month, or the third part of all his lands. And, lastly, as a feme-covert recusant may be imprisoned, 80 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 selons without the benefit of clergy. There is also an inferior species of recusancy (refusing to make the declaration against popery, enjoined by statute 30 Čar. II. st. 2. when tendered by the proper inagistrate), which, if the party resides within ten miles of London, makes him an absolute re
cusant 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 (6), of a lay papist. But, 3. The remaining spe. cies 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 inass, 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. e. 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 taking the oaths, is guilty
W. III. c. 4. 12 Ann, st 2, c. 14. I Geo. I I., I Jac. I. c. 4. 3 Jac. I. c. 4 & 5.
(c) Raym. 377. Latch. I Car II. st. 2. i W. & M. e. 9. 15. & 26. 11 & 12
(0) Stat. 23 Eliz. e. 1. 27 Eliz. e. 2. 29 Eliz. e. 6. 12 Eliz. c. 2. T Jac I. c. 6. 3 Car. I. c. 3. 25 Car. II. c. 2. 30
c. 55. 3 Goo. I. c. 18. II Geo. II. c. 17
of high treason: and all persons harbouring him are guilty of felony wita out the benefit of clergy.
This is a short summary of the laws against the papists, under thcithree several classes, of persons professing the popish religion, popish re cusants convict, and popish priests. Of which the president Montesquieu observes (d), 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 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 in different ways : it occasioned the [*58 ] 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, with 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 (8).
(d) Sp. L. b. 19, c. 27.
(8) But now by the statute 31 Geo. III. c. by the learned Judge, are removed from those 32. (amended and explained by the 43 Geo. Roman catholics who are willing to comply III. c. 30), which may be called the toleration with the requisitions of that statute ; which act of the Roman catholics, all the severe and are, that they must appear at some of the cruel restrictions and penalties, enumerated courts of Westminster, or at the quarter-ses