2

brawling and disorderly conduct in church, there being a sufficient remedy by application to justices of the peace.1 Nevertheless the clergy may still be punishable for that offence as an ecclesiastical offence. And the jurisdiction for defamation was also wholly taken away from the ecclesiastical courts, as the civil courts deal now exclusively with slander when it is actionable. And finally the Church Discipline Act in 1840 provided a new mode of procedure, and enacted, that no criminal proceeding against the clergy for any offence against the laws ecclesiastical should be instituted in any ecclesiastical court otherwise than as therein provided.*

Remedy under Church Discipline Act against clergy. The incidents of the procedure in the ecclesiastical courts belong to that division of the law entitled Judicature. It is enough to say that all criminal suits against clergymen are now instituted and carried on under the procedure set forth in the Church Discipline Act.5 One feature of this Act is, that all criminal proceedings must be begun either by a preliminary inquiry under commissioners appointed by the bishop, so as to see whether there is a prima facie case fit to be tried out in the regular way, or the bishop may at once refer the trial to the Court of Appeal for the Province-that is to say, to the Court of Arches. And all such suits must be commenced within two years from the time when the offence was committed. This Act is thus at once a law of criminal procedure as to the offences to which it relates, and a statute of limitations as to penal prosecutions. And the bishop has an absolute veto on the commencement of any proceeding under this Act.8 And though he may send the case to be tried by the Arches Court, still the latter court is not bound to assume jurisdiction.9

1 23 & 24 Vic. c. 32. 2 Ibid. § 1. 3 18 & 19 Vic. c. 41, ante, p. 208. 4 3 & 4 Vic. c. 86, § 23. In 1839 there were 360 ecclesiastical courts exercising criminal jurisdiction, and each having its own notions of law. The House of Commons resolved, that they ought to be put an end to without delay; and hence the Act of 3 & 4 Vic. c. 86. 5 3 & 4 Vic. c. 86. 6 3 & 4 Vic. c. 86, § 20. 7 Ditcher v Denison, 11 Moore, P. C. 324. 8 Julius Bp. Oxford, H. L.,

23 March, 1880.

9 Sheppard v. Bennett, L. R., 2 Eccl. 335.

At one time it was

K K

settled that for the conviction of a bishop seventy-two witnesses

When a clergyman has committed an offence for which he may be tried in a temporal court, the ecclesiastical court may nevertheless take cognizance of the offence for its own purposes of discipline. It cannot indeed profess to punish him for the crime committed, but it may suspend or deprive him on the ground of the acts committed, whether these are proved by conviction in the temporal court, or though the clergyman has not been yet punished by such court.1 And though for incontinence no suit can be brought in the ecclesiastical courts for mere discipline after eight months, yet that court may nevertheless inquire into the same facts after that date for the purpose of deprivation.3

In some of the offences of clergymen, such as using forbidden ceremonies and ornaments-offending against the Prayer Book as regards services, rites, and ceremonies, a shorter and more prompt remedy is given by the Public Worship Act of 1874, which treats such offences as of a civil nature. And the proceeding must be instituted by the bishop either at the instance of the archdeacon or a churchwarden, or any three male parishioners, members of the church and resident at least a year; or in case of cathedral or collegiate churches, any three inhabitants of the diocese. The bishop may however refuse to prosecute under this Act, provided he state the reasons for his opinion to be furnished to the relator.

Clerical offence of schism and heresy.-The offence of schism, and of affirming and maintaining, that other assemblies than the Church of England are true and lawful churches, is set forth in the canons, but recusants and nonconformists are no longer subject to be excommunicated on that account. And schism is now scarcely recognisable as an offence even of the clergy. The form it may assume is better known as heresy."

were required, and these must be heads of families and professing Christians; while forty-four would suffice for a priest, thirty-seven for a deacon, and seven for a sub-deacon.—Capit. Car. Mag. vi. A.D. 806, § 2. And a variation of this law had been accepted in England a century earlier.-Thorpe, Anc. Laws, ii. 73.

1 Free v Burgoyne, 2 Bligh, N. S. 65; 1 Dow & Cl. 115. Geo. III. c. 44, § 2. 3 Burder v Hodgson, 3 Curt. 822.

Vic. c. 85. 5 Ibid. § 8.

227

4 37 & 38

6 In 1542 a statute of Henry VIII. expressly forbade as pestiferous

It has sometimes been said that all the ancient nations except the Persians and Jews were to a certain degree tolerant.1 But it would be difficult to distinguish between ancient and modern nations in this respect, or to show that the law in any one epoch was less vindictive than in another against offenders of this class.2

Heresy. According to Hale the common law recognised the ecclesiastical judge as the judge of heresy; and that judge was the bishop, or, in grave cases, a provincial synod. If the bishop declared a layman a heretic, and sentenced him to death, the secular power then obtained the writ de heretico comburendo and burnt him; if the heretic was a clergyman, he was degraded by the'bishop himself. Some have doubted whether a bishop alone could sentence to death; but certain provincial constitutions, and also the recital of the statute of Henry IV. c. 15, recognise this as within the bishop's authority. Yet the Crown had a discretion to issue this writ de heretico comburendo. And before the reign of Richard II. heretics were seldom burnt. The statute of Henry IV. made burning follow as of course the sentence of the bishop, or even of his commissary, and also gave the bishop power to arrest and imprison those suspected of the offence. And the bishop had this wild and unbounded jurisdiction till the statute of Henry VIII. repealed that Act and transferred the power of burning to the sheriffs in their tourns.5 Yet while the jurisdiction was vested in the bishop, the temporal court could interfere and rescue the heretic before judgment. This they did in one case, where all that the heretic said was, that "though excommunicated by the Archbishop of Canterbury, he was not excommunicated before God, and he had, notwithstanding,

and noisome all books, sermons, and ballads, whereby diversity of opinion and schisms arose. Printers, bookbinders, and booksellers, particularly of books in favour of the Anabaptists, and such crafty translations of the Bible as Tindal's, were liable to three months' imprisonment, and on a second offence to perpetual imprisonment. Ballads and songs for rebuking of men and setting forth of virtue were expressly excepted; and ladies, if noble and gentle, might read to themselves alone and not to others any texts of the Bible or New Testament.-34 & 35 Henry VIII. c. 1. 1 Newman's Lect. Hist. 37. 31 Hale's Pleas of Cr. 5 25 Hen. VIII. c. 14; repealed by 1 Ed. VI. c. 12.

Chap. IX. c. 15.

2 See further as to this, post, 391; 12 Co. 92. 4 2 Hen. IV.

And in an

as great plenty of wheat as his neighbours." other case, where all that the heretic said was, "that he was not bound to pay tithes to the curate of the parish where he dwelt," 2 the courts of law interfered on the ground, that the ecclesiastical court's jurisdiction was at an end, when it pronounced sentence and delivered up the heretic to the secular powers, and those courts insisted on the specific matter of heresy being set forth, and of reviewing it so as to see that it was a legal ground of judgment; "for it concerned life and liberty."3 As Hale said, the temporal courts were not mere lacqueys to endorse whatever the ecclesiastical courts certified to them.*

Until the time of Henry VIII. there was nothing clearly laid down as to what was or was not heresy; and even then no further certainty was attainable, except that it was declared, that some specific statements were not, and others were, heresy. It was to be no longer heresy to speak against the authority of the Pope.s It was next declared to be heresy to say, that, in the communion, after consecration, the bread and wine remained bread and wine still And it was made not only heresy, but felony, to say that priests might marry, and that auricular confession was not necessary. After the reign of Henry VIII. Protestants and Roman Catholies had opportunities of burning each other as heretics, till Elizabeth repealed the preceding statutes, and thereby restored the common law.7 And the High Court of Commission being erected obtained jurisdiction to sentence heretics; but nevertheless the jurisdiction of the bishop and of the provincial council was not thereby taken away. And under this statute the writ de heretico comburendo was not issued as of course, but was in the discretion of the king and council. And forfeiture of goods and lands no longer was to follow on conviction. And though since the time of Elizabeth no further definition of heresy has been given by any statute, yet the writ de heretico comburendo, and all capital punishments in pursuance of ecclesiastical

42.

1 Keyser's case; 5 Ed. IV. Rol. 143; 3 Inst. 42; Att.-Gen. v Pearson, 3 Meriv. 383. 2 Warner's case; 1 Rol. Rep. 110; 3 Inst. 32 Inst. 615, 623. 41 Hale, Pleas Cr. 408. 5 25 Hen. VIII. c. 14. 6 31 Hen. VIII. c. 14. 7 1 Eliz. c. 1.

censures, are utterly abolished.' And no means exist for ecclesiastical courts dealing with heresy except by excommunication; though clergymen guilty of heresy may still be deprived and degraded. But whenever such a charge is made, there must be great precision and distinctness in the accusation. The articles of charge must definitely state the opinions maintained and doctrines contravened, and the particular articles of religion or portions of the formularies containing those doctrines. And while the accuser is confined to the passages he sets forth as matter of accusation, the defendant may explain, from the rest of his work, the sense or meaning of the passage on which the charge is founded.2

The punishment of heretics.-The punishment of heretics seems to have been always severe. The early Church made it a rule not to eat or converse with heretics. And Theodosius punished some of them capitally. One of the earliest instances of burning for heresy is said to have occurred under Robert of France in the eleventh century.5 In this country it is said, that the first martyrs for heresy were thirty men and women who set up strange opinions in Oxford, and a council of the clergy there, in 1159, condemned them to be burnt in the forehead with a red-hot iron, whipped half naked through the streets, and left to die of hunger and cold. The reason given by Coke for burning being the appropriate punishment was, that it was an offence against the Eternal Majesty and a leprosy of the soul, requiring the offender to be cut off lest he poison others. Yet it was always competent to escape punishment by abjuring the heretical opinion. In the short reign of Mary it is said about 288

3

Bing.

1 29 Ch. II. c. 9. 2 Williams v Bp. Salisbury, 2 Moore, P. C. N. S. 375; Sheppard v Bennett, L. R., 4 Priv. C. 362. Chr. Ant. b. xvi. c. 6. 4 Cod. Theod, b. xvi. tit. 5. 5 1 Prescott's Ferd. 261; Sismondi, b. iv. c. 4.

65 Henry's Hist. Gt. Brit. 338. It is said the first martyrdom in Scotland for religious opinions was that of Rereby at Perth in 1408.2 Fordun's Scotichr. 441. The Emperor Charles V. decreed death and forfeiture of goods as the punishment of converts from the ancient faith. And in 1568 a decree of the Inquisition condemned all the inhabitants of the Netherlands to death as heretics.-2 Motley's Dutch Rep. 158.

73 Inst. 43; Fuller's case, 12 Rep. 44.