Blackstone's Commentaries on the Laws of England
Book the Fourth - Chapter the Fourth : Of Offences Against God and Religion
CHAPTER THE FOURTH.
OF OFFENCES AGAINST GOD AND RELIGION.
IN the prefent chapter we are to enter upon the detail of the feveral fpecies of crimes and mifdemefnors, with the punifhment annexed to each by the law of England. It was obferved, in the beginning of this book
a, that crimes and mifdemefnors are a breach and violation of the public rights and duties, owing to the whole community, confidered as a community, in it's focial aggregate capacity. And in the very entrance of thefe commentaries
b it was fhewn, that human laws can have no concern with any but focial and relative duties ; being intended only to regulate the conduct of man, confidered under various relations, as a member of civil fociety. All crimes ought therefore to be eftimated merely according to the mifchiefs which they produce in civil fociety
c : and, of confequence, private vices, or the breach of mere abfolute duties, which man is bound to perform confidered only as an individual, are not, cannot be, the object of any municipal law ; any farther than as by their evil example, or other pernicious effeccts, they may prejudice the community, and thereby become a fpecies of public crimes. Thus the vice of drunkennefs, if committed privately and alone, is beyond the knowlege and of courfe beyond the rach of human tribunals : but if committed publicly, in the face of the world, it's evil example makes it liable
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a See pag.5.
b See Vol.1. pag.123,124.
c Beccar. ch.8.
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F
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to temporal cenfures. The vice of lying, which confifts (abftractedly taken) in a crimanal violation of truth, and therefore in any fhape derogatory from found morlity, is not however taken notice of by our law, unlefs it carries with it fome public inconvenience, as fpreading falfe news ; or fome focial injury, as flander and malicious profecution, for which a private recompence is given. And yet drunkennefs and lying are in foro confcientiae as thoroughly criminal when they are not, as when they are, attended with public inconvenience. The only difference is, that both public and private vices are fubject to the vengeance of eternal juftice ; and public vices are befides liable to the temporal punifhments of human tribunals.
ON the other hand, there are fome mifdemefnors, which are punifhed by the cunicipal law, that are in themfelves nothing criminal, but are made fo by the pofitive conftitutions of the ftate for public convenience. Such as poaching, exportation of wool, and the like. Thefe are naturally no offences at all ; but their whole criminality confifts in their difobedience to the fupreme power, which has an undoubted right for the wellbeing and peace of the community to make fome things unlawful which were in themfelves indifferent. Upon the whole therefore, though part of the offences to be enumerated in the following fheets are againft the revealed law of God, others againft the law of nature, and fome are offences againft neither ; yet in a treatife of municipal law we muft confider them all as derving their particular guilt, here punifhable, from the law of man.
HAVING premifed this caution, I fhall next proceed to diftribute the feveral offences, which are either directly or by confequence injurious to civil fociety, and therefore punifhabel by the laws of England, under the following general heads : firft, thofe which are more immediately injurious to God and his holy religion ; fecondly, fuch as violate and tranfgrefs the law of nations ; thirdly, fuch as more efpecially affect the fove
reign
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reign executive power of the ftate, or the king and his government ; fourthly, fuch as more directly infringe the rights of the public or common wealth ; and, laftly, fuch as derogate from thofe rights and duties, which are owing to particular individuals, and in the prefervation and vindication of which community is deeply interefted.
FIRST then, fuch crimes and mifdemefnors, as more immediately offend Almighty God, by openly tranfgreffing the precepts of religion either natural or revealed ; and mediately, by their bad example and confequence, the law of fociety alfo ; which conftitutes that guilt in the action, which human tribunals are to cenfure.
1. OF this fpecies the firft is that of apoftacy, or a total renunciation of chriftianity, by embracing either a falfe religion, or no religion at all. This offence can only take place in fuch as have once profeffed the true religion. The perverfion of a chriftian to judaifm, paganifm, to other falfe religion, was punifhed by the emperors Conftantius and Julian with confifcation of goods
d ; to which the emperors Theodofius and Valennian added capital punifhment, in cafe the apoftate endeavoured to pervert others to the fame iniquity
e. A qunifhment too fevere fore any temporal laws inflict : and yet the zeal of our anceftors imported it into this country ; for we find by Bracton
f, that in his time apoftates were to be burnt to death. Doubtlefs the prefervation of chriftianity, as a nation religion, is, abftracted from it's own intrinfic truth, of the utmoft confequence to the civil ftate : which a fingle inftance will fufficiently demonftate. The belief of a future ftate of rewards and punifhments, the entertaining juft ideas of the moral attributes of the fuprime being, and a firm perfuafion that he fuperintends and will finally compenfate every action in human life (all which are clearly revealed in the doctrines, and forcibly inculcated by the precepts, of our faviour Chrift) thefe are the grand founda-
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d Cod. 1.7.1.
e Ibid.6.
f l.3.c.9.
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F 2
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tion of all judicial oaths ; which call to witnefs the truth of thofe, which perhaps may be only know to him and the party attefting : all moral evidence therefore, all confidence in human veracity, muft be weakened by irreligion, and overthrown by infidelity. Wherefore all affronts to chriftianity, or endeavours to depreciate it's efficacy, are highly deferving of human punifhment. But yet the lofs of life is a heavier penalty than the offence, taken in a civil light, deferves : and, taken in a fpiritual light, our laws have no jurifdiction over it. This punifhment therefore has long ago become obfolete ; and the offence of apoftlcy was for a long time the object only of the ecclefiaftical courts, which corrected the offender pro falute animae. But about the clofe of the laft century, the civil liberties to which we were then reftored being ufed as a cloke of malicioufnefs, and the moft horrid doctrine fubverfive of all religion being publicly avowed both in difcourfe and writings, it was found neceffary agian for the civil power to interpofe, by not admitting thofe mifcreants
g to the privileges of fociety, who maintained fuch principle as deftoyed all moral obligation. To this end it enacted by ftatute 9&10 W. III. c.32. that if any perfon educated in, or having made profeffion of, the chriftian religion, fhall writing, printing, teaching, or advifed fpeaking, deny the chriftian religion to be true, or the holy fcriptures to be of divine authority, he fhall upon the firft offence be rendered incapable to hold any office of truft ; and, for the fecond, be rendered incapable of bringing any action, being guardian, executor, legatee, or purchafer of lands, and fhall fuffer three years imprifonment without bail. To give room however for repentance ; if, within four months after the firft conviction, the delinquent will in open court publicy renounce his error, he is difcharged for that once from all difabilities.
II. A SECOND offence is that of herefy which confifts not in a total of chriftianity, but of fome of it's effential
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g Meferayantz in our antient law-books is the name of unbelievers.
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doctrines, publicly and obftinately avowed : being defined, “fententia rerum divinarum humano fenfu excogitata, palam docta, et pertinaciter defenfa
h.” And here it muft alfo be acknowleged that particular modes of belief or unbelief, not tending to overturn chriftianity itfelf, or to fap the foundations of morality, are by no means the object of coercion by the civil magiftrate. What doctrines fhall therefore be adjudged herefy, was left by our old conftutution to the determination of the ecclefiaftical judge ; who had herein a moft arbitrary Iatitude allowed him. For the general definition of an heretic given Lyndewode
i, extends to the fmalleft deviations from the doctrines of holy church : “haereticus eft qui dubitat de fide catholica, et qui negligit fervare ea, quae Romana ecclefia ftatuit, feu fervare decreverat.” Or, as the ftatute 2 Hen. IV. C.15. expreffes it in Englifh, “teachers of erroneous opinions, contrary to the faith and bleffed betermination of the holy church.” Very contrary this to the ufage of the firft general councils, which defined defined all heretical doctrines with the utmoft precifion and exactnefs. And what ought to have alleviated the punifhment, the uncertainty of the crime, feems to have enhanced it in thofe days of blind zeal and pious cruelty. It is true, that the factimonious hypocrify of the canonifts went firft no farther than enjoining penance, excommunication, and ecclefiaftical deprivation, for herfy ; though afterwards they proceeded boldly to imprifonment by the ordinary, and confifcation of goods in pios ufus. But in the mean time they had prevailed upon weaknefs of bigotted princes to make the civil power fubfervient to their purpofes, by making herefy not only a temporal, but even a capital offence : the Romifh ecclefiaftics dtermining, without appeal, whatever they pleafed to be herfy, and fhifting off to the fucular arm the odium and drudgery of executions ; with which they themfelves were too tender and delicate to intermeddle. Nay they pretended to intercede and pray, on behalf of the convicted heretic, ut citra mortis periculum fententia circa eum moderetur
k : well
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h 1Hal. P.C.384.
i cap.de haercticis.
k Decretal.l.5.t.40.c.27.
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knowing at the fame time that they were delivering the unhappy victim to certain death. Hence the capital punifhments inflicted on the antient Donatifts and Manichaens by the emperors Theodofius and Juftinian
l : hence alfo the conftitution of the emperor Frederic mentioned by Lyndewode
m, adjudging all perfons without diftinction to be burnt fire , who were convicted of herefy by the ecclefiaftical judge. The fame emperor, in another conftitution
n, ordained that if any temporal lord, when admonifhed by the church, fhould neglect to clear his territories of heretics within a year, it fhould be lawful for good catholics to feife and occupy the lands, and utterly to exterminate the heretical poffeffors. And upon this foundation was built that arbitrary power, fo long claimed and fo fatally exerted by the pope, of difpofing even of the kingdoms of refractory princes more dutiful fons of the church. The immediate event of this conftitution was fomething fingular, and may ferve to illuftrate at once the gratitude of the holy fee, and the juft punifhment of the royal bigot : for upon the authority of this very conftitution, the pope afterwards expelled this very emperor Frederic from his kingdom of Sicily, and gave it to Charles of Anjou
o.
CHRISTIANITY being thus deformed by daemon of perfecution upon the continent, we cannot expect that our own ifland fhould be entirely free from the fame fcourge. And therefore we find among our antient precedents
p a writ de haeretico comburendo, which is thought by fome to be as antient as the common law iffelf. However it appears from thence, that the conviction of herefy by the common law was not in any petty ecclefiaftical court, but before the achbifhop himfelf in a provincial fynod ; and that the delinquent was delivered over to the king to do as he fhould pleafe with him : fo that the crown had a control over the fpiritual power, and might pardon the convict by iffuing
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l Cod. l.1.tit.5.
m c. de haereticis.
n Cod.1.5.4.
o Baldus in Cod.1.5.4.
p P.N.B.269.
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no procefs againft him ; the writ de haeretico comburendo being not a writ of courfe, but iffuing only by the fpecial direction of the king in council
q.
BUT in the reign of Henry the fourth, when eyes of the chriftian world began to open, and the feeds of the proteftant religion (though under the opprobrious name of lollardy
r) took root in this kingdom ; the clergy, taking advantage from the king's dubious title to demand an increfe of their own power, obtained an act of parliament, which fharpened the edge of perfecution to it's utmoft keennefs. For, by that fynod, might convict of heretical tenets ; and unlefs the convict abjured his opinions, or if after abjuration he relapfed, the fheriff was bound ex officio, if required by the bifhop, to commit the unhappy victim to the flames, without waiting for the confent of the crown. By the ftatute 2Hen. V.c.7. lollardy was alfo made a temporal offence, and indictable in the king's courts ; which did not thereby gain an exclufive, but only a concurrent jurifdiction with the bifhpop's confiftory.
AFTERWARDS, when final reformation of religion began to advance, the power of the eccclefiaftics was fomewhat moderated : for thought what herefy is, was not then precifely defined, yet we are told in fome points what it is not : the ftatute 25 Hen.VIII.c.14. declaring, that offences againft the fee of Rome are not herefy ; and the oreinary being thereby reftrained from proceeding in any cafe upon mere fufpicion ; that is, unlefs the party be accufed by two credible witneffes, or an indictment of herefy be firft previoufly found in the king's courts of common law. And yet the fpirit of perfecution was not then abated, but only diverted into a lay chanel. For in fix years afterwards, by ftatute 31.Hen.VIII.c.14. the bloody law of the fix articles was made, which eftablifhed the fix moft contefted points popery, tran-
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q Hal. P.C.395.
s So called not from lolium, or tares, (which was afterwards devifed, in order to juftify the burning of them from Matth. xiii.30.) but from one Walter Lolhard, a German reformer. Mod.Un.Haft.xxvi.13.Spelm. Gloff.371.
s Hen.IV. c.15.
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fubftantiation, communion in one kind, the celibacy of the clergy, monaftic vows, the facrifice of the mafs, and auricular confeffion ; which points were “determined and refolved by the moft godly ftudy, pain, and travail of his majefty : for which his moft humble and obedient fubjects, the lords fpiritual and temporal and the commons, in parliament affembled, did not only render and give unto his highnefs their moft high and hearty thanks,” but did alfo enact and declare all oppugners of the firft to be heretics, and to be burnt with fire ; and of the five laft to felons, and to fuffer death. The fame ftatute eftablifhed a new and mixed jurifdiction of clergy and laity for the trial and conviction of heretics ; the reigning prince being then equally intent on deftroying the fupremacy of the bifhops of Rome, and eftablifhing all other their corruptions of the chriftian religion.
1. SHALL not perplex this detail with the various repeals and revivals thefe fanguinary laws in the two fucceding reigns ; but fhall proceed directly to the reign of queen Elizabeth ; when the reformation was finally eftablifhed with temper and decency, unfullied with party rancour, or perfonal caprice and refentment. By ftatute 1 Eliz. c.1. all former ftatutes relating to herefy are repealed, which leaves the jurifdiction of herefy as it ftood at common law ; viz. as to the infliction of common cenfures, in the ecclefiaftical courts ; and, in cafe of burning the heretic, in the provincial fynod only
t. Sir Matthew Hale is indeed of a different opinion, and holds that fuch power refided in the diocefan alfo ; though he agrees, that in either cafe the writ de haeretico comburendo was not demandable of common right, but grantable or otherwife merely at king's difcretion
u. But the principal point now gained, was, that by this ftatute a boundary is for the firft time fet to what fhall be accounted herefy ; nothing for the future being to be fo determined, but only fuch tenets, which have been heretofore fo declared, 1. By the words of the canonical fcriptures ; 2. By the firft four general councils, or fuch others
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t 5Rep.23. 12Rep.56 92.
u 1Hal. P.C.405.
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as have only ufed the words of the holy fcriptures ; or, 3. Which fhall hereafter be fo declared by the parliament, with the affent of the clergy in convocation. Thus was herefy reduced to a greater certainty than before ; though it might not have been the worfe to have defined it in termsftill more precife and particular : as a man continued ftill liable to be burnt, for what perhaps he did not underftand to be herefy, till the ecclefiaftical judge fo interpreted the words the canonical fcriptures.
FOR the writ de haeretico comburendo remained ftill force ; and we have inftanes of it's being put in execution upon two anabaptifts in the feventeenth of Elizabeth, and two Arians in the ninth of James the firft. But it was totally abolifhed, and herefy again fubjected only to ecclefiaftical correction, pro falute animae, by virtue of the ftatute 29. Car. II. c.9. For in one and the fame reign, our lands were delivered from the flavery of. military tenures ; our bodies from arbitrary imprifonment by the habeas corpus act ; and our minds from the tyranny of fuperftitious bigotry, by demolifhing this laft badge of perfecution in the Englifh law.
IN what I have now faid I would not be underftood to derogate from the juft right of the national church, or to favour a loofe latitude of propagating any crude undigefted fentiments in religious matters. Of propagating, I fay ; for the bare entertaining them, without an endeavour to diffufe them, feems hardly cognizable by any human authority. I only mean to illuftrate the excellence of our prefent eftablifhment, by looking back to former times. Every thing is now as it fhould be : unlefs perhaps that herefy ought to be more ftrictly defined, and no profecution permitted, even in the ecclefiaftical courts, till the tenets in queftion are by proper authority previoufly declared to be heretical. Under thefe reftrictions, it feems neceffary for the fupport of the national religion, that the officers of the church fhould have power to cenfure heretics, but not to exterminate or deftroy them. It has alfo been thought proper for the
G
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civil magiftrate again to interpofe, with regard to one fpecies of herefy, very prevalent in mofern times : for by ftatute 9&10 W.III.c.32. if any perfon educated in the chriftian religion, or profeffing the fame, fhall by writting, printing, teaching, or advifed fpeaking, deny any one of the perfons in the holy trinity to be God, or maintain that there are more Gods than one, he fhall undergo the fame penalties and incapacities, which were juft now mentioned to be inflicted on apoftacy by the fame ftatute. And thus much for the crime of herefy.
III. ANOTHER fpecies of offences againft religion are thofe which affect the eftablifbed church. And thefe are either pofitive, or negative. Pofitive, as by reviling it's ordinances : or nagative, by non-conformity to it's worfhip. Of both of thefe in their order.
1. AND, firft, of the offence of reviling the ordinances of the church. This is a crime of much gorffer nature than the other of mere non-conformity : fince it carries with it the utmoft indecency, arrogance, and ingratitude : indecency, by fetting up private judgment in oppofition to public ; arrogance, by treating with contempt and rudenefs what has leaft a better chance to be right, than the fingular notions of any particular man ; and ingratitude, by denying that indulgence and liberty of confcience to the members of the national church, which the retainers to every petty conventicle enjoy. However it is provided by ftatutes 1 Edw. VI. c.1. and 1 Eliz. c.1. that whoeverreviles the facrament of the lord's fupper fhall be punifhed by fine and imprifonment : and by ftatute 1 Eliz. c.2. if any minifter fhall fpeak any thing in derogation of the book of common prayer, he fhall be imprifoned fix months, and forfeit a year's value of his benefice ; and for the fecond offence he fhall bedeprived. And if any perfon whatfoever fhall in plays, fongs, or other open words, fpeak any thing in derogation, depraving, or defpifing of the faid book, he fhall forfeit for the firft offence an hundred marks ; for the fecond four hundred ; and for the
third
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third fhall forfeit all his goods chattels, and fuffer imprifonment for life. Thefe penalties were framed in the infancy of our prefent eftablifhment ; when the difciples of Rome and of Geneva united in inveighing with the utmoft bitternefs againft the Englifh liturgy : and the terror of thefe laws (for they feldom, if ever, were fully executed) proved a principal means, under providence, of preferving the purity as well as decency of our national worfhip. worfhip. Nor can their continuance to this time be thought too fevere and intolerant ; when we confider, that they are levelled at an ofence, to which men cannot now be prompted by nay laudable motive ; not even by a miftaken zeal for reformation : fince from political reafons, fufficiently hinted at in a former volume
v, would now be extremely unadvifable to make any alterations in the fervice of the church ; unlefs it could be fhewn that fome manifeft impiety or fhocking abfurdity would follow from continuing it in it's prefent form. And therefore the virulent declamations of peevifh or opinionated men on topics fo often refuted, and of which the preface to the liturgy is itfelf a perpetual refutation, can be calculated for no other purpofe, than merely to difturb the confciences, and poifon the minds of the people.
2. NON-CONFORMITY to the worfhip of the church is the other, or negative branch of this offence. And for this there is much more to be bleaded than for the former ; being a matter of private confciene, to the fcruples of which our prefent laws have fhewn a very juft and chriftian indulgence. For undoubtedly all perfecution and oppreffion of weak confciences, on the fcore of religious perfuafions, are highly unjuftifiable upon every principle of natural reafon, civil liberty, or found religion. But care muft be taken not to carry this indulgence into fuch extremes, as may endanger the national church : there is always a difference to be made between toleration and eftablifhment.
NON-CONFORMISTS are of two forts : firft, fuch as abfent themfelves from the divine worfhip in the eftablifhed church,
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v Vol. 1. pag.98.
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through total irreligion, and attend the fervice of no other perfuafion. Thefe by the ftatutes of 1 Eliz. c.2. 23Eliz. c.1. and 3 Jac.I.c.4. forfeit one fhilling to the poor every lord's day they fo abfent themfelves, and 20 l. to the king if they continue fuch default for a month together. And they keep any inmate, thus irreligioufly difpofed, in their houfe, they forfeit 10 l. per month.
THE fecond fpecies of non-conformifts are thofe who offend through a miftaken or pervaerfe zeal. Such were efteemed by our laws, enacted fince the time of the reformation, to be papifts and proteftant diffenters : both of which were fuppofed to be equally fchifmatics in departing from the national church ; with this differecne, that the papofts divide from us upon material, though erroneous, reafons ; but many of the diffenters upon matters of indifference, of, in other words, upon no reafon at all. However the laws againft the former are much more fevere than againft the principles of the papifts being defervedly looked upon to be fubverfive of the civil government, but not thofe of the proteftant diffenters. As to the papifts, their tenets are undoubtedly calculated for the introduction of all flavery, both civil and religious : but it may with juftice be queftioned, whether the fpirit, the doctrines, and the practice of the fectaries are better calculated to make men good fubjects. One thing obvious to boferve, that thefe have once within the compafs of the laft century, effected the ruin of our church and monarchy ; which the papifts have attempted indeed, but have never yet been able to excute. Yet certainly our anceftors were miftaken in their plans of compulfion and intolerance. The fin of fchifm, as fuch, is by no means the object of temporal coercion and punifhment. If through weaknefs of intellect, through mifdirected piety, through perverfenefs and acerbity of temper, or (which is often the cafe) through a profpect of fecular advantage in herding with a party, men quarrel with the ecclefiaftical eftablifhment, the civil magiftrate has nothing to do with it ; unlefs their tenets and practice are fuch as threaten ruin or dif-
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turbance to the ftate. He is bound indeed to protect the eftablifhed church, by admitting none but it's genuine members to offices of truft emolument : for, if every fect was to be indulged in a free communion of civil emplyments, the ides of a national eftablifhment woudl at once be deftroyed, and the epifcopal church would be no longer the church of England. But, this being once fecured, all perfecution for diverfity of opinions, however rificulous or abfurd they may be, is contrary to every principle of found policy and civil freedom. The names and fubordination of the clergy, the pofture of devotion, the materials and colour of the minifter's garment, the joining in a known or an unknown form of prayer, and other matters of the fame kind, muft be left to the option of every man's private judgment.
WITH regard therefeore to proteftant diffenters, although the experience of their turbulent difpofition in former times occafioned feveral difabiltties and reftrictions (which I fhall not undertake to juftify) to be laid them by abundance of ftatutes
w, yet at length the legiflature, with fpirit of true magnanimity, extended that indulgence to thefe fectaries, which they themfelves, when in power, had held to be countenancing fchifm, and denied to the church of England. The penalties are all of them fufpended by the ftatute 1 W.&m.ft.2.c.18. commonly called the toleration act ; which exempts all diffenters (except papifts, and fuch as deny the trinity) from all penal laws relating to religion, provided they take the oaths of allegiance and fupremacy, and fubfcribe the declaration againft popery, and repair to fome congregation regiftered in the bifhop's court or at the feffions, the doors whereof muft be always open : and diffenting teachers are alfo to fubfcribe the thirty nine articles, except thofe relating to church government and infant baptifm. Thus are all perfons, who will approve themfelves no papifts or oppugners of the trinity, left at full liberty to act as their confcience fhall direct them, in the matter of religious worfhip. But by ftatute
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w 31 Eliz. c.1. 17car. II.c.2. 22car.II.c.1.
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5 Geo. 1. c.4. no mayor, or principal magiftrate, muft appear at any diffenting meeting with the enfigns of his office
x, on pain of difability to hold that any other office : the legiflature judging it a matter of propriety, that a mode of worfhip, fet up in oppofition to the national, when allowed to be exercifed in peace, fhould be exercifed alfo with decency, gratitude, gratitude, and humility.
AS to papifts, what has been faid of the proteftant diffenters would hold equally ftrong for a general toleration of them ; provided their feparation was founded only upon difference of opinion in religion, and their principles did not alfo extend to a fubverfion of the civil government. If once they could be brought to renounce the fupremacy of the pope, they might quietly enjoy their feven facraments, their purgatory, and auricular confeffion ; their worfhip of reliques and images ; nay even their tranfubftantiation. But while they ackknowlege a foreign power, fuperior to the fovereignty of the kingdom, they cannot complain if the laws of that kingdom will not treat them upon the footing of good fubjefts.
LET us therefore now take a view of the laws in force againft the papifts ; who may be divided into theree claffes, perfons profeffing popery, popifh recufants convict, and popifh priefts. 1. Perfons profeffing the popifh religion, befides the former penalties for not frequenting their parifh church , are by feveral ftatutes, too numerous to be here recited
y, difabled from taking any lands either by defcent or purchafe, after eighteen years of age, until they renounce their errors ; they muft at the age of twenty one regifter their eftates before acquired, and all future convevances and wills relating to them ; they are incapable of prefenting to any advowfon, or granting to any other perfon any
{FS}
x Sir Humphrey Edwin, a lord mayor of London, had the imprudence foon after the toleration-act to go to a prefhyterian meeting-houfe in his formalities : which is alluded to by dean Swift, in his tale of a tub, under the allegory of tack getting on a great hourfe, and cating cuftard.
y See Hawkins's pleas of the crown, and Burn's juftice.
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avoid-
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avoidance to the fame, in prejudice of the two univerfities ; they may not keep or teach any fchool under pain of perpetual imprifonment ; they are liable alfo in fome inftances to pay double taxes ; and, if they willingly fay or hear mafs, they forfeit the one two hundred, the other one hundred marks, and each fhall fuffer a year's imprifonment. Thus much for perfons, who from the misfortune of family prejudices or otherwife, have conceived an unhappy attachment to the Romifh church from their infancy, and publicly profefs it's errors. But if any evil induftry is ufed to rivet thefe errors upon them, if any perfon fends another abroad to be educated in the popifh religion, or to refide in any religious houfe abroad for that purpofe, or contributes any thing to their maintenance when there ; both the fender, the fent, and the contributor, are difabled to fue in law or equity, to be executor or adminiftrator to any perfon, to take any legacy or deed of gift, and to bear any office in the realm, and fhall forfeir all their goods and chattels, and likewife all their real eftate for life. And where errors are alfo aggravated by apoftacy, or perverfion, where a perfon is reconciled to the fee of Rome or procures others to be reconciled, the offence amounts to high treafon. 2. popifh recufants, convicted in a court of law of not attending the fervice of the church of England, are fubject to the following difabilities, penalties, and forfeitures, over and above thofe before-mentioned. The can hold no office or employment ; they muft not keep arms in their houfes, but the fame may be feifed by the juftices of the peace ; they may not come within ten miles of London, on pain of 100 l ; they can bring no action at law, or fuit in equity ; they are not permitted to travel above five miles from home, unlefs by licence, upon pain of forfeiting all their goods ; and they may not come to court, under pain of 100 l. No marriage or burial of fuch recufant, or baptifm of his child, fhall be had otherwife than by the minijfters of the church of England, under other fevere penalties. A married woman, when recufant, fhall forfeit two thirds of her dower or jointure, may not be executrix or adminiftratrix to her hufband, nor any part of his goods ; and during the
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coverture may be kept in prifon, unlefs her hufband redeems her at the rate of 10 l. a month, or the third part of all his lands. And, laftly, as a feme-covert recufant may be imprifoned, fo all others muft, within three months after conviction, either fubmit and renounce their errors, or, if required fo to do by four juftices, muft abjure and renounce the realm : and if they do not depart, or if they return without the king's licence, they fhall be guilty of felony, and fuffer death as felons. There is alfo an inferior fpecies of recufancy, (refufing to make the declarition againft popery enjoined by ftatute 30 Car.II.ft.2. when tendered by the proper magiftrate which, if the party refides within ten miles of London, makes him an abfolute recufant convict ; or, if at a greater diftance, fufpends him from having any feat in parliament, keeping arms in his houfe, or any horfe above the value of five pounds. This is the ftate, by the laws now in being, of a lay papift. But, 3. The remaining fpecies or degree, viz. popifh priefts, are in a ftill more dangerous condition. By ftatute 11&12 W. III. c.4. popifh priefts or bifhops, celebrating mafs or exercifing any parts of their fuctions in England, except in the houfes of embaffadors, are to perpetual imprifonment. And by the ftatute 27 Eliz. c.2. any popifh prieft, born in the dominious of the crown of England, who fhall come over hither from beyond fea, or fhall be in England three days without conforming and taking the oaths, is guilty of high treafon : and all perfons harbouring him are guilty of felony without the benefit of clergy.
THIS is a fhourt fummary of the laws againft the papifts, under their three feveral claffes, of perfons profeffing the popifh religion, popifh recufants convict, and popifh priefts. Of which the prefident Montefquieu obferves
z, that they do all the hurt that can poffibly be done in cold blood. But in anfwer to this it may be obferved, (what foreigners who only judge from our ftatute book are not fully apprized of) that thefe laws
{FS}
z Sp. L.b.19. c.27.
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are
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are feldom exerted to their utmoft rigor : and indeed, if they were, it would be very difficult to excufe them. For they are rather to be accounted for from their hiftory, and the urgency of the times which produced them, than to be approved (upon a cool review) as a ftanding fyftem of law. The reftlefs machinations of the jefuits during the reign of Elizabeth, the turbulence and uneafinefs of the papifts under the new religious eftablifhment, and the boldnefs of their hopes and wifhes for the fucceffion of the queen of Scots, obliged the parliament to counteract of dangerous a fpirit by laws of a great, and perhaps neceffary, feverity. The powder-treafon, in the fucceeding reign, ftruck a panic a into James I, which operated in different ways : it occafioned the enacting of new laws againft the papifts ; but deterred him from putting them in execution. The intrigues of queen Henrietta in reign of Charles I, the profpect of a popifh fucceffor in that of Charles II, the affaffination-plot in the reign of king William, and the avowed claim of a popifh pretender to the crown, will account for the extenfion of thefe penalties at thofe feveral periods of our hiftory. But if a time fhould ever arrive, and perhaps it is not very diftant, when all fears of a pretender fhall have vanifhed, and the power and influence of the pope fhall become feeble, ridiculous, and defpicable, not only in England but in every kingdom of Europe ; it probably would not then be amifs to review and foften thefe rigorous edicts ; at leaft till the civil principles of the romancatholics called again upon the legiflature to renew them : for it ought not to be left in the breaft of every mercilefs bigot, to drag down the vengeance of thefe occafional law upon inoffenfive, though miftaken, fubject ; in oppofition to the lenient inclinations of the civil magiftrate, and to the deftruction of every principle of toleration and religious liberty.
IN order the better to fecure the eftablifhed church againft perils from no-conformifts of all denominations, infidels, turks, jews, heretics, papifts, and fectaries, there are however two bulwarks erected ; called the corporation and teft acts : by the
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former of which
a no perfon can be legally elected to any office relating to the government of any city or corportion, unlefs, within a twelvemonth befofe, he has received the facrament of the lord's fupper according to the rites of church of England : and he is alfo enjoined to take the oaths of allegiance and fupremacy at the fame time that he takes the oath office : or, in default of either of thefe requifites, fuch election fhall be void. The other, called the teft act
b, all officer civil and military to take the oaths and make the declaration againft tranfubftantiation, in the court of king's bench or chancery, the next term, or at the next quarter feffions, or (by fubfequent ftatutes) within fix months, after their admiffion ; and alfo within the fame time to recieve the facrament of the lord's fupper, according to the ufge of the church of England, in fome public church immediately after divine fervice and fermon, and to deliver into court a certificate thereof figned by the minifter and church-warden, and alfo to prove the fame by two credible witneffes ; upon forfeiture of 500 l, and difability to hold the faid office. And of much the fame nature with thefe is the ftatute 7 Jac. I.c.2. which permits no perfons to be naturalized or reftored in blood, but fuch as undergo a like teft : which teft having been removed in 1753, in favour of the jews, was the next feffion of parliament reftored again with agian with fome precipitation.
THUS much for offence, which ftrike at our national religion, or the doctrine and difcipline of the church of England in particular. Iporceed now to cnfider fome grofs impieties and general immoralities, which are taken notice of and punifhed by our municipal law ; frequently in concurrence with the ecclefiaftical, to which the cenfure of many of them does alfo of right apperatain ; though with a view fomewhat different : the fpirtual court punifhing all finful enormities for the fake of reforming the private finner, pro falute animae ; while the temporal courts refent the public affront to religion and morality, on
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a Star. 13 Car.II.ft.2.c.1.
b Stat.25 car. II.c.2.
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which
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which all government muft depend for fupport, and correct more for the fake of example than private amendment.
IV. THE fourth fpecies of offences therefore, more immediately againft God and religion, is that of blafphemy againft the Almighty, by denying his being or providence ; or by contumelious reproaches of our Saviour Chrift. Whither alfo may be referred all profane fcoffing at the holy fcripture, or expofing it to contempt and ridicule. Thefe are offences punifhable at common law by fine and imprifonment, or other infamous corporal punifhment
c : chriftianity is part of the laws of England
d.
V. SOMEWHAT allied to this, though in an inferior degree, is the offence of profane and common fwearing and curfing. By the laft ftatute againft which, 19 Geo. II. c.21. which repeals all former ones, every labourer, failor, or foldier fhall forfeit 1 s. for every profane oath or curfe, every other perfon under the degree of a gentleman 2 s. and every gentleman or perfon of fuperior rank 5 s. to the poor of the parifh ; and, on a fecond conviction, double ; and, for every fubfequent conviction, treble the fum firft forfeited ; with all charges of conviction : and in default of payment fhall be fent to the houfe of coffection for ten dayds. Any the peace may convict upon his own hearing, or the teftimony of one witnefs ; and any conftable or peace officer, upon his own hearing, may fecure any offender and carry him before a juftice, and there convict him. If the juftice omits his duty, he forfeits 5 l, and the conftable 40 s. And the act is to be read in all parifh churches, and public chapels, the funday after every quarter day, onpain of 5 l. to be levied by warrant from any juftice. Befides this punifhment for taking God's name in vain in common difcourfe, it is enacted by ftatute 3 Jac. I. c.21. that if in any ftage play, interlude, or fhew, the name of the holy trinity, or any of the perfons therein,
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c 1Hawk. P.C.7.
d 1Ventr.293. 2Strange, 834.
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be jeftingly or profanely ufed, the offender fhall forfeit 10 l, one moiety to the king, and the informer.
VI. A SIXTH fpecies of offences againft God and religion, of which our antient books are full, is a crime of which one knows not well what account to give. I mean the offence of witchcraft, conjuration, inchantment, or forcery. To deny the poffibility, nay, actual exiftence, of witchcraft and forcery, is at once flatly to contradict the revealed word of God, in various paffages both of the old and new teftment : and the thing itfelf is a truth to which every nation in the world hath in it's turn borne teftimony, by either examples feemingly well attefted, or prohibitory laws, which at leaft fuppofe the poffibility of a commerce with evil fpirits. The civil law punifhes with death not only the forcerers themfelves, bur alfo thofe who confult them
e ; imitating in the former the exprefs law of God
f, “thou fhalt not fuffer a witch to live.” And our own laws, both before and fince the conqueft, have been equally penal ; ranking this crime in the fame clafs with herefy, and condemning both to the flames
g. The prefident Montefquieu
h ranks them alfo both together, but with a verydifferent view : laying it down as an important maxim, that we ought to be very circumfpect in the profecution of magic and herefy ; becaufe the moft unexceptionable conduct, the pureft morals and the conftant practice of every duty in life, are not a fufficient fecurity againft the fufpicion of crimes like thefe. And indeed the ridiculous ftories that are generally told, and the many impoftures and delufions that have been difcovered in all ages, are enough to demolifh all faith in fuch a dubious crime ; if the contrary evidence were not alfo extremely ftrong. Wherefore it feems to be the moft eligibel way to conclude, with an ingenious writer of our own
i though one cannot give credit to any particular modern inftance of it.
{FS}
e Cod.l.9.t.18.
f exod.xxii. 18.
g 3Inft.44.
h Sp.L.b.12.c.5.
i Mr.Addifon, Spect. N
o117.
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Our
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OUR forefathers ftronger believers, when they enacted by ftatute 33 Hen.VIII.c.8. all witchcraft and forcery to be felony without benefit of clerfy ; and again by ftatute 1Jac.I.c.12. that all perfons invoking any evil fpirit, or confulting, covenanting with, entertaining, employing, feeding, or rewarding any evil fpirit ; or taking up dead bodies from thier graves to be ufed in any witchcraft, forcery, charm, or inchantment ; or killing or otherwife hurting any perfon by fuch infernal arts ; fhould be guilty of felony without benefit of clergy, and fuffer death. And, if any perfon fhould attempt by forcery to difcover hidden treafure, or to reftore ftolen goods, or to provoke unlawful love, or to hurt man or beaft, though the fame were not effected, he or fhe fhould fuffer imprifonment and pillory for the firft offence, and death for the fecond. Thefe acts continued in force till lately, to the terror of all antient females in the kingdom : and many poor wretches were facrificed thereby to the prejudice of their neighbours, and their own illufions ; not a few having, by fome means or other, confeffed th afact at the gallows. But all executions for this dubious crime are now at an end ; our legiflature having at length followed the wife example of Louis XIV in France, who thought proper by an edict to reftrain the tribunals of juftice from receiving informations of witchcraft
k. And accordingly it is with us enacted by ftatute 9 Geo.II. c.5. that no profecution fhall for the future be carried on againft any perfon for conjuration, witchcraft, forcery, or inchantment. But the mifdemefnor of perfons pretending to ufe witchcraft, tell fortunes, or difcover ftolen goods by fkill in the occult fciences, is ftill defervedly punifhed with a year's imprifonment, and ftanding four times in the pillory.
VII. A SEVENTH fpecies of offenders in this clafs are all religious imoftors : fuch as falfely pretend an extraordinary com-
{FS}
k Voltaire Siecl. Louis xix. Mod. univ. Hift.xxv.215. Yet Vouglans, (de droit criminel, 353.459.) ftill reckons up forcery and witchcraft among the crimes punifhable in France.
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miffion from heaven ; or terrify and abufe the people with falfe denunciations of judgments. Thefe, as tending to fubvert all religion, by bringing it into ridicule andcontempt, are punifhable by the temporal courts with fine, imprifonment, and infamous corporal punifhment
l.
VIII. SIMONY, or the corrupt prefentation of any one to an ecclefiaftical benefice fro gift or reward, is alfo to be confidered as an offence againft religion ; as well by reafon of the facrednefs of the charge which is thus profanely bought and fold, as becaufe it is always attended with perjury in the perfon prefented
m. The ftatute 31 Eliz. c.6. (which, fo far as it relates to the forfeiture of the right of prefentation, was confidered in a former book
n) enacts, that if any patron, for money or any other corrupt confideration or promife, directly or indirectly given, fhall prefent, admit, inftitute, induct, inftall, or collate any perfon to an ecclefiaftical benefice or dignity, both the giver and taker fhall forfeit two value of the benefice or dignity ; one moiety to the king, and the other to any one who will fue for the fame. If perfons alfo corruptly rifign or exchange their benefices, both the giver and taker fhall in like manner forfeit double the value of the money or other corrupt confideration. And perfons who fhall corruptly ordain or licence any minifter, or procure him to be ordained or licenced, (which is the true idea of fimony) fhall incur a like forfeiture of forty pounds ; and the minifter himfelf of ten pounds, befides an incapacity to hold any ecclefiaftical preferment for feven years afterwards. Corrupt elections and refignations in colleges, hofpitals, and other eleemofynary corporations, are alfo punifhed by the fame ftature with forfeiture of the double value, vacating the place or office, and a devolution of the right of election for that turn to the crown.
{FS}
l 1Hawk. P.C.7.
m 3Inft.156.
n See Vol.II. pag.279.
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IX. PROFA-
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IX. PROFANATION of the lord's day, or fabbath-breaking, is a ninth offence againft God and religion, punifhed by the municipal laws of England. For, befides the notorious indecency and fcandal, of permitting any fecular bufinefs to be publicly tranfcted on that day, in a country profeffing chriftianity, and the corruption of morals which ufually follows it's profanation, the keeping one day in feven holy, as a time of relaxation and refrefhment as well as for public worfhip, is of admirable fervice to a ftate, confidered merely as a civil inftitution. It humanizes by the help of converfation and fociety the manners of the lower claffes ; which would otherwife degenerate into a fordid ferocity and favave felfifhnefs of fpirit : it enables the induftrious workman to purfue his occupation in the enfuing week with health and chearfulnefs : it imprints on the minds of the people that fenfe of their duty to God, fo neceffary to make them good citizens ; but which yet would be worn out and defaced by an unremitted continuance of labour, without any ftated any ftated times of recalling them to worfhip of their maker. And thereore the laws of king Athelftan
o forbad all merchandizing on the lord's day, under very fevere penalties. And by the ftatute 27 Hen.VI.c.5. no.fair or market fhall be held on the principal feftivals, good friday, or any funday (except the four fundays in harveft) on pain of forfeiting the goods expofed to fale. And, fince, by the ftatute 1 Car. I.c.1. no perfons fhall affemble, out of their own parifhes, for any fport whatfoever upon this day ; nor, in their parifhes, fhall ufe any bull or bear baiting, interludes, plays, or other unlawful exercifes, or paftimes ; on pain that every offender fhall pay 3s. 4d. to the poor. This ftatute does not prohibit, but rather impliedly allows, any innocent recreation or amufement, within their refpective parifhes, even on the lord's day, after divine fervice is over. But by ftatute 29 Car.II.c.7. no perfon is allowed to work on the lord's day, or ufe any boat or barge, or expofe any goods to fale ; except meat in public houfes, milk at certain hours, and works of ne-
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o c.24.
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ceffity
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ceffity or charity, on forfeiture of 5 s. Nor fhall any drover, carrier, or the like, travel upon that day, under pain of twenty fhillings.
X. DRUNKENNESS is alfo punifhed by ftatute 4 Jac. I.c.5. with the forfeiture of 5s ; or the fitting fix hours in the ftocks : by which time the ftatute prefumes the offender will have regained his fenfes, and not be liable to do mifchief to his neighbours. And there are many wholfome ftatutes, by way of prevention, chieftly paffed in the fame reign of king James I, which regulate the licencing of ale-houfes, and punifh perfons found tippling therein ; or the mafters of fuch houfes permitting them.
XI. THE laft offence which I fhall mention, more immediately againft religion and morality and cognizable by the temporal courts, is that of open and notorious lewdnefs : either by frequenting houfes of ill fame, which is an indictable offece
p ; or by fome groffly fcandalous and public indecency, for which the punifhment is by fine and imprifonment
q. In the year 1650, when the ruling powers found it for their intereft to put on the femblance of a very extraordinary ftrictnefs and purity of morals, not only inceft and adultery were made capital crimes ; but alfo the repeated act of keeping a brothel, or committing fornication, were (upon a fecond conviction) made felony without benefit of clergy
r. But at the reftoration, reftoration, when men from an abhorrence of the hypocrify of the late times fell into a contrary extreme, of licentioufnefs, it was not thought proper to renew a law of fuch unfafhionable rigour. And thefe offences have been ever fince left to the feeble coercion of the fpiritual court, according to the rules of the canon law ; a law which has treated the offence of incontinence, nay even adultery itfelf, with a great degree of tendernefs and lenity ; owing perhaps to the celibacy of it's firft compilers. The temporal
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p Poph.208.
q 1Siderf.168.
r Scobell.121.
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courts therefore take no cognizance of the crime of adultery, otherwife than as a private injury
s.
BUT, before we quit this fubject, we muft take notice of the temporal punifhment for having baftard children, confidered in a criminal light ; for with regard to the maintenance of fuch illegitimate offspring, which is a civil concern, we have formerly fpoken at large
t. By the ftatute 18 Eliz. c.3. two juftices may take order for the punifhment of the mother and reputed father ; but what that punifhment fhall be, is not therein afcertained : though the contemporary expofition was, that a corporal punifhment was intended
u. By ftatute 7 Jac. I.c.4. a fpecific punifhment (viz. commitment to the houfe of correction) is inflicted on the woman only. But in both cafes, it feems that the penalty can only be inflicted, if the baftard becomes chargeable to the parifh : for otherwife the very maintenance of the child is confidered as a degree of punifhment. By the laft mentioned ftatute the juftices may commit the mother to the houfe of correction, there to be punifhed and fet on work for one year ; and, in cafe of a fecond offence, till fhe find fureties never to offend again.
{FS}
s See Vol.III. pag.139.
t See Vol. pag.458.
u Daft. juft. ch.11.
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