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1. Apostasy. This is a total renunciation of Christianity, by embracing either a false religion, or no religion at all, This offence can only exist, in such as have once professed true religion. The conversion of a christian to paganism was punished by Constantine with confiscation of goods, to which the emperors Theodosius and Valentinian added capital punishment, in case the apostate endeavored to convert others. The zeal of our ancestors imported this harsh doctrine into our country, and at one time, apostates were burned at the stake.
Basis of Judicial Oaths. The belief in a future state of rewards and punishments, the entertaining just ideas of the attributes of the Supreme Being, and a firm persuasion that He superintends and will finally compensate every action in human life, are the grand foundation of judicial oaths, which call God to witness the truth of those facts, which perhaps may only be known to him and the party attesting. All moral evidence, all confidence in human veracity must be weakened by apostasy, and overthrown by total infidelity.
Not Cognizable by Our Laws. Wherefore all affronts to christianity, or endeavors to vlepreciate its efficacy in those who have once professed it, are highly deserving of censure. Yet, taken in a spiritual light, our laws have no jurisdiction over it. The punishment therefore has long ago become obsolete, and the offence of apostasy was for a time the object only of the ecclesiastical courts, which corrected the offender pro salute animae. The last penal statute for this offence was in the reign of William III. where it was severely punished.
II. Heresy. This consists not in a total denial of christianity, but of some of its essential doctrines, publicly and obstinately avowed. Particular modes of belief or unbelief, not tending to overturn christianity itself, or to sap the foundations of morality, are by no means the object of coercion by the civil magistrate. What doctrines may be adjudged heresy were left by our old constitution to the determination of the ecclesiastical judge, who had herein a most arbitrary latitude. A general definition of a heretic in those days extended to the smallest deviation from the doctrines of the church. The first general councils, on the contrary, defined all heretical doctrines with the utmost exactness. What ought to have alleviated the punishment, the uncertainty of the crime, seems to have enhanced it in those days of blind religious zeal.
Punishments for Heresy. At first, the canonists merely enjoined penance, excommunication and ecclesiastical deprivation; afterwards, imprisonment and confiscation of goods in pios USUS. They subsequently even made heresy a capital offence, through the aid of the temporal power.
History of such Punishments. Hence, the capital punishments inflicted on the Donatists and Manicheans by the emperors Theodosius and Justinian; hence also, the constitutions of the emperor Frederic, adjudging death by fire to all persons found guilty of heresy by the ecclesiastical judge. The same emperor ordained, that if any temporal lord, after being admonished by the church, neglected to clear his territories of heretics within a year, it should be lawful to seize the lands, and to utterly exterminate the heretical possessors. Upon this foundation was built that arbitrary power, so long claimed and fatally exerted by the church, of disposing even of the kingdoms of refractory princes. The pope afterwards expelled this very emperor Frederic from his kingdom of Sicily, and gave it to Charles of Anjou.
Heresy in England. In ancient times in England, the conviction of heresy, by the common law, was not in an ecclesiastical court, but before the archbishop himself, in a provincial synod, and the delinquent was delivered over to the king, to do as he should please with him. In the reign of Henry IV, the clergy, to increase their power, obtained an act of parliament, empowering the diocesan alone, without the intervention of a synod, to convict of heretical tenets; and unless the convict abjured his opinions, or if, after abjuration, he relapsed, the sheriff was bound, if required by the bishop, to commit the victim to the flames, without waiting for the consent of the crown. Under Henry V, lollardy, which was a form of religion, was made a temporal offence and indictable in the king's courts; which gained thereby a concurrent jurisdiction with the king's consistory.
Reign of Henry VIII. As time advanced, the power of the ecclesiastics was somewhat moderated, the statute of Henry VIII declaring, that offences against the see of Rome are not heresy. The ordinary was not allowed to act on mere suspicion, but the party must first be accused by two credible witnesses, or an indictment of heresy be found in the king's courts of common law. Six years later, in the same reign, the law of the six articles was made, which established the contested points of transubstantiation, communion in one kind, the celibacy of the clergy, monastic vows, the sacrifice of the mass, and auricular confession. The statute declared all opponents of the first of these doctrines to be heretics, who should be burnt with fire, and opponents of the remainder to be felons, who should suffer death. The same law established a mixed jurisdiction of clergy and laity for the trial of heretics, and retained all the corrupt abuses of the past, while intent on destroying the supremacy of the bishops of Rome.
Elizabeth's Reign. During this reign, all former statutes relating to heresy were repealed, which left the jurisdiction of heresy as it stood at common law; allowing the ecclesiastical courts to inflict censures, and the provincial senate to burn the heretics. The statute set bounds to what should be accounted heresy. It embraced only such tenets, as had been heretofore declared so: (1) By the words of the canonical scriptures. (2) By the first four general councils, or such others as have only used the words of the Bible. (3) Which shall hereafter be so declared by parliament, with the assent of the clergy in convocation. This reduced heresy to a greater certainty than before, but the writ de heretico comburendo still existed, and was not totally abolished, until the reign of Charles II; which reign delivered our lands from the slavery of military tenures, our bodies from arbitrary imprisonment by the habeas corpus act, and our minds from the tyranny of superstitious bigotry, by demolishing the last badge of persecution in the English law.
Present Law, Relating to Heresy. Everything is now as it should be, with respect to the spiritual cognizance and punishment of heresy ; unless perhaps, that the crime should be more strictly defined, and no prosecution permitted, even in the ecclesiastical courts, till the tenets, are by authority, previously declared to be heretical. Under these restrictions, it seems necessary, for the support of the national religion, that church officers should have power to censure heretics, but not to harass them with temporal penalties.
III. Offences Against the Established Church. These are positive, by reviling its ordinances; or negative, by non-conformity to its worship.
1. Reviling its Ordinances. This is a much grosser crime than mere non-conformity, since it carries with it indecency, arrogance and ingratitude; indecency by setting up private judgment in virulent opposition to authority; arrogance, by treating with contempt established doctrines; and ingratitude, by denying the liberty of conscience to members of the national church, which others enjoy. Hence, by statute of Elizabeth, a party reviling the sacrament of the Lord's supper, was punishable by fine and imprisonment; a minister speaking derogatory of the book of common prayer, was imprisoned one year for the first oftence, and for life for the second. If any person in plays, songs or words, should speak in derogation of such work, he might be fined for the first and second offences, and for the third, forfeit all his goods and be imprisoned for life.
2, Non-conformity to the Worship of the Church. This is a matter of private conscience, to the scruples of which our laws have shown a just indulgence. All persecutions of weak consciences, on the score of religious persuasions, are unjustifiable on every principle of natural reason, civil liberty, or sound religion.
Absence from Divine Worship. Non-conformists are of two sorts: first, such as absent themselves from divine worship in the established church, through total irreligion, and attend the service of no other persuasion. By statute of Elizabeth and James I, these forfeit one shilling to the poor every Lord's day they so absent themselves, and twenty pounds to the king, if they continue such default a month. If persons keep in their houses a party, thus irreligiously disposed, they forfeit ten pounds a month.
Mistaken Zeal. The second species of non-conformists are those who offend through a mistaken or perverse zeal. But the offence of schism is by no means the object of temporal coercion and punishment. If men quarrel with the ecclesiastical establishment, the civil magistrate has nothing to do with it, unless their tenets and practice threaten ruin or disturbance to the state. He is bound indeed to protect the established church, and if this can be effected by admitting none but its members to offices of trust, he is at liberty to do so; the disposal of offices being one of discretion.
Protestant Dissenters. In former times, several disabilities and restrictions were laid upon dissenters, but at length the legislature, with a spirit of magnanimity, displayed indulgence to such. Penalties were conditionally suspended by statute of William and Mary against their majesty's protestant subjects, dissenting from the church of England, by the toleration act, which was confirmed by queen Anne. By this statute, no existing penal laws, shall extend to any protestant dissenters, provided: (1) they take the oath of allegiance and supremacy; (2) that they repair to some certified congregation; (3) that the doors of such meeting house be unlocked and unbolted. Dissenting teachers must subscribe to the articles of religion mentioned in the statute of Elizabeth, which concern the confession of the true christian faith, and the doctrine of the sacraments, with the express exception of those relating to the government and powers of the church and to infant baptism; or if they object to the same, shall subscribe to the declaration prescribed by George III, professing themselves to be christians, and that they believe the scriptures contain the revealed will of God, and to be the rule of doctrine and practice. They are then left at full liberty to act as their consciences dictate, in the matter of religious worship.
1 This act was repealed as to dissenters, in the reign of George III.
Roman Catholics. What has been said of the protestant dissenters would hold equally for a general toleration of Roman Catholics, provided their separation be founded only upon difference of opinion in religion, and does not extend to a control of the civil government.
Obsolete Laws. Religious Intolerance, (1) Persons professing that religion, beside being subjected to 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 faith. (2) Recusants, convicted in court of not attending the service of the church of England, are subject to certain disabilities and forfeitures, and can hold no office or employment. They must not keep arms in their houses; 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 five miles from home without license, upon pain of forfeiture of their goods. Within three months after conviction, they must either renounce their errors or leave the realm, and if they do not depart, or if they return without license, they shall suffer death as felons. (3) Should their priests celebrate mass, except in the houses of ambassadors, they would be liable to perpetual imprisonment. All foreign priests visiting England, and remaining three days, without taking the oaths, are deemed guilty of hign treason; and all persons harboring them, of felony,