CHAPTER VII. RELIGIOUS LIBERTY. Laws of Henry V. against Heresy.-Penal Laws of Elizabeth against Catholics and Puritans. Intolerance of the Long Parliament.-The Corporation and Test Act. -Penal Laws against the Catholics.-Oppressed condition of the Catholic Landowners.-Penal Laws against Priests.-Montesquieu's Opinion touching these Laws.-Blackstone's.-Modifications under George III.-Laws for Relief of Roman Catholics in England and Ireland.—Emancipation of the Catholics.-The Position of the "Catholic" Church.-Penal Laws against Jesuits and Monks.Prohibition of Processions.-Legacies for "Superstitious Uses."-Civil Marriage, -Political Rights of Catholics. - Toleration Act in favour of Dissenters.Emancipation of Dissenters.-Quakers.-Jews in the Middle Ages.-Naturali. zation.-Political Rights.-Admission to Parliament.-A Mohammedan Attor ney.-Keeping the Sabbath.-Churchyards.-Laws against Blasphemy. THE Common law does not know of the offence of "heresy." The convocation and the spiritual courts, to whose decrees the temporal power gave no effect, proceeded against heretics by spiritual punishments, such as excommunication and the like. By a statute of Henry V., passed against the Lollards, entitled "De heretico comburendo," the arm of the civil power first gave effect to the sentences of the spiritual courts, and, on the issuing of a writ in chancery, delivered up the heretic to the punishment of death by fire. As this statute had simply in view the saving of the soul, the persons condemned did not suffer forfeiture of their goods and chattels. The statute against heretics remained in force down to the time of Charles II. From the time of the Reformation it was called into activity against Catholics and dissenters. The English Reformation was originally a Reformation merely of jurisdiction, inasmuch as the Pope ceased to be the last resort in religious disputes, and the king assumed to be his successor. To question the infallibility of the king and parliament in matters. of religion became an act of heresy, as had previously been the case with reference to the infallibility of the "Bishop of Rome," as the Pope, since the Reformation, has been "officially " styled. This supremacy of the king over the church was fully established by 1 Elizabeth, c. 1 (1562), called the "Act of Supremacy and Conformity," whereby it is ordered that all clergymen and laics who are invested with any office under the crown, shall take the oath of supremacy, and abjure the spiritual and worldly jurisdiction of every foreign prince, under penalty of loss of office or benefice. Defection from the legalised religion, and the spreading of contrary principles, entailed the penalty of high treason. Ecclesiastics not conforming to the English liturgy, were forbidden to exercise their functions, under severe penalties, which might involve imprisonment for life. A later statute declared the making of proselytes with intent to procure their return to catholicism and the publication of papal bulls as high treason. Heavy penalties were further threatened against such as remained away from church. During her reign no milder measure was meted out to Protestant dissenters; Udal, a puritan clergyman, was executed for having published a book against episcopacy.* In the eyes of the Established Church, not only are Puritans, but Catholics likewise, deemed "Dissenters." Against the Catholics both the Parliament and the kingdom at large acted most aggressively under the first two Stuarts. The Puritans brought the Long Parliament and Commonwealth to bear against Charles I. The Long Parliament deprived all Catholic peers of their seat in the upper house, and Catholic officers of their posts in the army. Though Cromwell, on political grounds, vehemently persecuted the Catholics, the measures adopted by him with regard to Ireland were of a far more rigorous character than those applied to the Catholics in England during his “Protectorate." The Restoration was especially intolerant against the Puritans. By the Corporation Act of 13 Charles II., st. 2, c. 1, it was provided that no person should thereafter be elected to office in any corporate town, who should not, within one year previously, have taken the sacrament of the Lord's supper, according to the rites of the Church of England; and every person Mr. Hallam is of opinion that he died of the effects of confinement in prison. Neal says that he suffered death for an alleged libel on the bishops. so elected was also required to take the oaths of allegiance and supremacy. By the Act of Uniformity, 13 and 14 Charles II. c. 4, it was enacted that no person should thenceforth be capable of holding any ecclesiastical promotion or dignity; or of consecrating or administering the sacrament, until he should be ordained priest according to episcopal ordination; and, with respect to all ministers who then enjoyed any ecclesiastical benefice, it directed that they should, within a certain period, openly read morning and evening service according to the Book of Common Prayer, and declare before the congregation their unfeigned assent and consent to the use of all things therein contained, upon pain of being ipso facto deprived of their spiritual promotions. This Act is really the test-act of the English hierarchy. It operates most upon its clergy, and by its enforcement in 1662, 1800, 2000, or, as others state, 2400 of its most efficient and devoted ministers were deprived of all promotion. Charles II., whose Catholic tendencies began to develope with years, suspended the penal laws against Catholics and dissenters, just when nothing was so popular with the people as the persecution of Catholics. This line of conduct had no further result than to force upon him the Test Act (1673), to the adoption of which the second "long parliament "* (1660 to 1678) compelled the king. By this act, any one about to be invested with a public office was bound to subscribe a declaration against the real presence of Christ in the Eucharist, i. e., "transubstantiation," and also to receive the sacrament of the Lord's Supper "according to the usage of the Church of England."+ This provision excluded James II. openly dispensed with this Act. The validity of such dispensation was questioned in a collusive action brought against Sir Edward Hales, a Roman Catholic, in the name of his servant, to recover the penalty of £500, imposed by the Test Act for accepting the commission of colonel of a regiment without the previous qualification of receiving the sacrament in the Church of England. The judges decided in favour of the defendant, upon the principle that it was an inseparable prerogative of the crown to dispense with penal laws in particular cases, for reasons of which it was the sole judge. One of the charges brought against James was the assuming and ex ercising a power of dispensing with and suspending laws without the consent of Parliament. Sir John Howell, Recorder of the City of London, sent back a jury repeatedly, and intimidated them for the purpose of securing a verdict against the Quaker Penn, for art and conspiracy, the worthy judge exclaiming-"Now I for the first time understand the craft and wisdom of the Spanish Inquisition; and it will not be well with us until we get such an institution in England.-Disraeli, Curios. Lit. i. Roman Catholics and dissenters from every considerable place of trust and public employment. The revolution occasioned by the Catholic tendencies of James II., rendered the position of the Catholic body in many particulars still more unendurable.* In the first half of the 18th century they were still unusually oppressed. Blackstone gives the long and terrible list of punishments to which they were subjected. Penalties for non-attendance at church continued after the Revolution; whosoever read mass was subject to a fine of 200 marks, whosoever heard it, to 100; both priest and hearer were alike subject to one year's imprisonment. No one of the age of eighteen, who had not taken the oath of allegiance and supremacy, and signed the declaration against "Transubstantiation" and prayer to the saints, could either purchase or otherwise acquire land. No Catholic could teach in any school, or keep one, under penalty or imprisonment for life. Catholics could not exercise the rights of presentation to a living. If any Catholic sent a co-religionist to the continent for education in a Catholic college, both the person sending and the person sent, and any one contributing money for the education, became incapable of defending or instituting a suit in the courts of law, of being executors or adminstrators, of inheriting any legacy, or being invested with any public office; and forfeited, moreover, all their property, both real and personal. Apostacy and the making of proselytes still remained high treason. Popish recusants+ convicted in a court of law of not attending the service of the Church of England, were subject to the following disabilities, penalties, and forfeitures, over and above those before-mentioned: they were considered as persons excommunicated,‡ and could not take any office, bear arms, go further than five miles from home, unless by licence, come within ten miles of London on pain of £100, or appear as plaintiff in any court of law or suit in equity. Marriages, christenings, and burials, might only be conducted and registered by the clergy of the church established; all marriages concluded between Catholics in a Catholic church, and celebrated by a Catholic priest, were invalid, and the children born of such union bastards.* The son of any Catholic, by becoming a Protestant, might forthwith enter into possession of the family estate; a child of ten years, by conforming, might thereby deprive the whole of his family of their property. Every Protestant son might summon his father, being a Catholic, before the Court of Chancery, and compel him, on oath, to surrender his property; a yearly income for his life, in conformity with a judgment of a court of law, would thereupon be allotted from the father's income. By 7 Will. III., cap. 4, a union between Catholics and Protestants is prohibited; in the event of mixed marriages having been concluded abroad, the children belonging to the Catholic side shall be taken away and brought up as Protestants. In the event of a Catholic being brought before a court on the ground of his religion, or any of the matters abovementioned, he was not allowed the privilege of being tried by a jury; the burden of proof lay upon the accused.† Two justices of the peace might, on any occasion, proceed forthwith to search the house of a Catholic. Catholic priests saying mass (excepting in the house of an ambassador) were, by 11 and 12 Will. III., cap. 4, liable to perpetual imprisonment. If a priest celebrated marriage between Catholics and Protestants, he might be hanged. According to statute 27 Eliz., c. 2, any priest born within the dominions of the crown of England, who shall come over thither from beyond sea, or shall be in England three days without conforming and taking the oaths, is guilty of high treason; and all persons harbouring him were guilty for felony without "benefit of clergy."§ In Ireland, the priests were registered and durst not quit the district assigned to them. Such was the legal position of Catholics under Will. III., Anne, and the first two Georges. It was rendered more oppressive still when Walpole, in 1722, caused a penalty of £100,000 to be levied against all Catholics and Nonconformists on the ground * Hansard, iii., Ser. v., p. 1261. Miss Martineau, ii. 7. § Bl. iv. 57. |