burendo, which is thought by some to be as antient as the common law itself (). However, it appears that it was not the practice to issue this writ except upon a conviction for contumacy or relapse; nor unless such conviction took place before the archbishop himself in a provincial synod or convocation. And even that authority could not lawfully award the writ, but merely left the delinquent to the secular power; so that the crown might pardon him, if it thought proper, by forbearing to issue the writ; which was not grantable as of course, but issued by the special direction of the sovereign (s). [But in the reign of Henry the fourth, when the eyes of the Christian world began to open, and the seeds of the Protestant religion-though under the opprobrious name of Lollardy (t)-took root in this kingdom, the clergy, taking advantage, from the king's dubious title, to demand an increase of their own power, obtained an act of parliament (2 Hen. IV. c. 15), which sharpened the edge of persecution to its utmost keenness (u). For by that statute the diocesan alone, without the intervention of a synod, might convict of heretical tenets; and unless the convict abjured his opinions, or if, (r) 1 Hale, P. C. 392; 1 Hawk. b. 1, c. 2, s. 10; and see St. Tr. vol. ii. 275. It seems clear, however, that, at common law, heresy was not punishable by forfeiture of lands or goods. See 1 Hale, P. C. 388 (n). (s) 1 Hale, P. C. 385, 393, 395. According to some opinions, the writ de hæretico comburendo was, at common law, not only in practice confined to convictions before the archbishop in provincial synod, but could not legally be awarded on a conviction before any court of inferior authority, such as that of the diocesan. See 1 Hale, P. C. 391; 12 Rep. 56, 57. (t) So called not from lolium or tares (an etymology which was afterwards devised in order to justify the burning of them, as sanctioned by Matth. xiii. 30), but from one Walter Lolhard, a German reformer, A.D. 1315 (Mod. Un. Hist. xxvi. 13; Spelm. Gloss. 371); or, as some hold, from Lollen, to sing, in reference to their psalm-singing. (D'Aubigné, Hist. of Reformation, vol. v. p. 130.) (u) A previous Act (5 Ric. 2, st. 2, c. 5,) had been aimed at the followers of Wickliffe, but the people would not assent to it, and it was revoked the following year. (See Hist. Eng. L. by Reeves, vol. iii. p. 163.) [after abjuration, he relapsed, the sheriff was bound, ex officio, if required by the bishop, to commit the unhappy victim to the flames, without waiting for the consent of the crown. And again, by the stat. 2 Hen. V. st. 1, c. 7, Lollardism was also made a temporal offence, and indictable in the king's courts; which did not however thereby gain an exclusive but only a concurrent jurisdiction with the bishop's consistory. Afterwards, as the reformation of religion advanced, the power of the ecclesiastics become somewhat moderated; for though in what heresy consisted was still not precisely defined, yet the legislature explained in some points what it was not. For the statute 25 Hen. VIII. c. 14, declared that offences against the see of Rome were not heretical; and restrained the ordinary from proceeding in any case of alleged heresy upon mere suspicion,-that is, unless the party was accused by two credible witnesses, or an indictment for the offence was first found in the king's courts of common law. And yet the spirit of persecution was not then abated, but only diverted into a lay channel. For in six years afterwards, by statute 31 Hen. VIII. c. 14, the bloody law of the Six Articles was made; which established the six most contested points of popery-transubstantiation -communion in one kind-the celibacy of the clergymonastic vows-the sacrifice of the mass-and auricular confession; which points were "determined and resolved by "the most godly study, pain and travail of his majesty; for "which his most humble and obedient subjects, the lords 66 spiritual and temporal, and the commons, in parliament "assembled, did not only render and give unto his highness their most high and hearty thanks," but did also enact and declare all oppugners of the first to be heretics, and to be burned with fire, and of the five last, to be felons, and to suffer death. The same statute established a new and mixed jurisdiction of clergy and laity for the trial and conviction of heretics; the reigning prince being then equally intent on destroying the supre [macy of the bishops of Rome, and establishing all other their corruptions of the Christian religion. We shall not enter into the various repeals and revivals of these sanguinary laws in the two succeeding reigns; but shall proceed directly to the reign of Queen Elizabeth, when the Reformation was established on a firm and permanent basis. By stat. 1 Eliz. c. 1, all former statutes relating to heresy were repealed, which left the jurisdiction of heresy as it stood at common law; that is, left the simple offence to be visited by spiritual punishments in the ecclesiastical courts; and the offence, when aggravated by contumacy or relapse, to be dealt with by the writ de hæretico comburendo, after a conviction in the provincial synod. But the principal point then gained was, that by this statute a boundary was for the first time set to what would be accounted heresy; that is to say, such tenets only as had been theretofore so declared, 1, by the words of the Canonical Scriptures, or 2, by the first four general councils, or such others as had only used the words of the Holy Scriptures: or which should thereafter be declared heresy by the parliament, with the assent of the clergy in convocation. The writ, however, de hæretico comburendo still remained in force and we have instances of its being put in execution upon two Anabaptists in the seventeenth year of Elizabeth, and upon two Arians in the ninth year of James the first. But that writ was totally abolished, and heresy at length again subjected only to ecclesiastical correction pro salute animæ, by virtue of the statute 29 Car. II. c. 9. III. Another species of offences against God and religion is that of blasphemy against the Almighty by denying His being or providence; or by contumelious reproaches of our Lord and Saviour Christ: whither, also, may be referred all profane scoffing at the Holy Scripture, or exposing it to contempt and ridicule. These are offences [punishable at common law by fine and imprisonment, or other infamous corporal punishment (r). For Christianity is part of the laws of England; and a blasphemous libel may (as noticed elsewhere) be prosecuted as an offence at common law, and punished with fine and imprisonment (y).] IV. A fourth species of offences against religion are those which affect the Established Church. And these have been said to be either positive or negative: positive, by reviling its ordinances; or negative, by non-conformity to its worship (). But we shall confine our remarks to the former class: the latter being in effect abolished by the gradual extension of the principle of religious toleration; the history of which has been already traced in that part of this work where we had occasion to consider the Church and its worship (a). [As to the offence of reviling the ordinances of the Church, this is a crime which carries with it the utmost indecency, arrogance, and ingratitude; indecency by setting up private judgment in virulent and factious opposition to public authority; arrogance, by treating with contempt and rudeness, what has at least a better chance to be right than the singular notions of any particular man; and ingratitude, by denying that indulgence and undisturbed liberty of conscience to the members of the national Church, which the retainers to every petty conventicle enjoy. And, accordingly, it was provided by statute 1 Edw. VI. c. 1, and 1 Eliz. c. 1, that whoever reviled (x) Hawk. P. C. b. 1, c. 5, s. 5. (y) Vide sup. p. 102, note (d). Hawk. ubi sup. ; 1 Vent. 293; R. v. Woolston, Str. 834; R. v. Carlisle, 3 B. & Ald. 161. In the thirty-fourth year of Henry the sixth, Chief Justice Prisot declared in the Court of Common Pleas," Scripture est common ley, sur quel touts manieres de leis sont fondés." (See the Year Book, 34 (a) Vide sup. vol. 1. p. 705. [the sacrament of the Lord's Supper shall be punished by fine and imprisonment. And by the statute 1 Eliz. c. 2, that if any ordained minister shall speak any thing in derogation of the Book of Common Prayer, he shall, if not beneficed, be imprisoned one year for the first offence, and for life for the second: and, if beneficed, he shall for the first offence be imprisoned six months, and forfeit a year's value of his benefice; for the second offence be deprived, and suffer one year's imprisonment; and, for the third, be deprived, and suffer imprisonment for life. The same Act provided also, that if any person shall in plays, songs, or other open words, speak any thing in derogation, depraving or despising of the said book of prayer, or forcibly prevent the reading of it, or cause any other service to be used in its stead, he shall forfeit, for the first offence, a hundred marks; for the second, four hundred and, for the third, all his goods and chattels, and suffer imprisonment for life. These penalties were framed in the infancy of our present establishment, when the disciples of Rome and Geneva united in inveighing with the utmost bitterness against the English liturgy, and the terror of these laws (for they seldom, if ever, were fully executed) proved a principal means, under Providence, of preserving the purity as well as decency of our national worship. Nor can the milder penalties, at least, provided by these enactments be thought too severe and intolerant ; so far as they are levelled at the offence, not of thinking differently from the national Church, but of railing at that Church and obstructing its ordinances. For though it is clear that no restraint should be laid upon rational and dispassionate discussions of the rectitude and propriety of the established mode of worship, yet contumely and contempt are what no establishment can tolerate (b). V. Another offence against God and religion is that of profane and common swearing and cursing. And by (b) See also the provisions contained in 9 Will. 3, c. 35, sup. p. 230. |