But

same circumstances as contempt of any other court. as an ecclesiastical court is not a court of record, it cannot by its own powers carry out the punishment by imprisonment. Yet the same thing is done circuitously by the Court of Chancery issuing the necessary process called a writ de excommunicato capiendo on a certificate or significavit of the ecclesiastical judge. And there is power afterwards with consent of the other party to release the party from imprisonment.1 A peculiar practice exists in these courts, which consists in adding a monition to a sentence for any of the ordinary offences, and when this monition is disobeyed the court can, on affidavit and in a summary way, without any fresh suit commenced, sentence the contumacious person to suspension.2

Penance as a punishment.-Penance was the familiar punishment imposed by the Church for most of the offences, being founded on the same views of human nature and conduct as the pillory and stocks for civil offences. The chief difference was, that the civil court left the offender to contempt, careless as to what his thoughts may be, whereas the Church used penance as a mode of bringing about a public display of penitence. There was, however, also a private penance, consisting of contrition coupled with a confession of the mouth. The ceremony was even treated as a sacrament, and consisted in the offender putting on a certain garment and making an open acknowledgment of his fault in church; but a more solemn form of it was performed by the penitent going barefooted and clothed in sackcloth. It was deemed part of the correct discipline in early times not to re-admit penitents except in a public manner; and they were bound with solemn prayers and tears to stand at the altar clothed in sackcloth, the virtue of sackcloth being discovered by the first Council of Toledo. And if the offence was very notorious and scandalous, the absolution was given still more publicly in presence of the whole people before the reading desk. The better class of Christians were once all agreed, that the humiliation of a penitent must be sufficiently public.

1 53 Geo. III. c. 127; Hudson v Tooth, 2 Prob. Div. 125. 2 Martin v Mackonochie, 4 Q. B. D. 697.

4 Concil. Carth. III. c. 32.

3 Concil. Tolet. I. c. 2.

5 Cave's Prim. Chr. P. 3, c. 5. In China, the Buddhists atone for

The Ecclesiastical Court all along claimed the privilege of commuting such a punishment for a fine, or rather the delinquent could claim this commutation as a right;' and these commutations brought great profit to the Church till the time of the Reformation. But the scandal of allowing money to be substituted for corporal penance in case of notorious sins long haunted the Church and its archbishops. In 1597 a solemn convocation of the Province of Canterbury ordained, that it should only be allowed with the bishop's leave, and the money was to be given to the poor of the parish or other pious use. And the canons of 1640 kept up the ancient prejudice against letting off offenders with a fine, unless the bishop was privy to it. Even so late as the time of Queen Anne, the convocation made a regulation, that no commutation of penance should be deemed valid without the express written consent of the bishop; and a faithful register was to be kept of what was done with the money, the destination of which seems to have been deemed a difficult problem. The Ecclesiastical Court still keeps up the form of reserving this punishment in its armoury. But Lord Stowell, in 1804, somewhat ostentatiously seized upon the excuse of the offender's age and infirmity for remitting the sentence of solemn penance for incest.5 In 1816 a party was ordered to perform penance in the parish church during divine service, so that most of the congregation might see and hear the same. In another case, in 1828, the court did not go further than enjoin a penance of asking forgiveness of the aggrieved party in the vestry-room in presence of the clergyman. and churchwardens; but the form of retractation was at the same time compelled. In 1835 the judge took upon himself to remit the penance altogether as part of the sentence. Courts of law in modern times have sometimes been asked to discharge or otherwise protect defendants against irregularities in the attempt to enforce this barbarous punishment of penance. In one case, in 1823, the

their sins by expending large sums in highway repairs.-1 Gray's China, 128.

1 9 Ed. II. c. 2.

4 Gibs. 1046.

2

Ayliffe, Par. 414.

3 Gibs. Cod. 1045. Hagg. Cons. 393. 7 Courtail v Homfray,

5 Burgess Burgess, 1 6 Blackmore v Burder, 2 Phillim. 352. Chick Ramsdale, 1 Curt. 36.

2 Hagg. 1.

L L

defendant was ordered to perform "the usual penance," but he was not told what that was, and the court of law released him from imprisonment on that account.1 In another case, however, in 1838, when he had been ordered to go to the minister's house and make a confession, though a common law court was asked to say this was illegal, and the defendant said he would be a trespasser if he went into a stranger's house, the process was left undisturbed, it being chiefly a question of costs. And though no court will in future be likely to repeat such a sentence, the power to do so has never yet been expressly repealed.

Peculiarities in offences of clergy.-In criminal suits against the clergy one characteristic is found which did not belong to ordinary prosecutions in civil courts, much less in criminal courts, which is this, that if a criminal is found guilty he pays the whole costs, and if he is acquitted or discharged then the promoter pays his costs, though the matter has always been in the discretion of the court." But a still greater peculiarity is, that the bishop has an entire discretion as to allowing a clergyman to be prosecuted for any criminal offence under the Church Discipline Act. Another peculiarity of punishment for an ecclesiastical offence is, that as the punishment is deemed mostly only a mode of inducing a penitent state of mind, any ecclesiastical court has power at any time to order the release of the prisoner; and this again is only allowed on condition that the other party consents.5 But the court seems to insist, that the clerk shall not set up the excuse that he did not know he was offending against the law, and for no better reason than the maxim, that everybody is bound to know the law; moreover, the court seems not satisfied with an acknowledgment, that the party will not offend in future, but derives satisfaction from making the offender humble himself. This revocation of error must be made expressly and unreservedly.7

1 R. v Maby, 3 D. & R. 570. 2 Kington v Hack, 7 A. & E. 708. 3 Bennett Bonaker, 3 Hagg. Eccl. 56; Burder v Hodgson, 4 Notes of C. 492. 4 Julius v Bp. Oxford, H. L. 23 March, 1880. 53 & 4 Vic. c. 93, § 1. 6 Proc.-Gen.v Stone, 1 Hagg. Cons. 424. 7 Heath & Burder, 15 Moore, P. C. 1.

CHAPTER IX.

TOLERATION AND DISSENTERS.

Intolerance is a law of nature.-If the law of nature be a law, which existed as a system of positive rules at some antecedent stage in the progress from barbarism, or if it ever was a historic fact in any age, then the law of intolerance is part of the law of nature.1 There is no country or age recorded until the seventeenth, or rather the eighteenth century, in which it was not deemed the highest wisdom and the most divine justice, that he, who had satisfied himself of the truth of his creed and form of worship, and had power over others, should insist on these. others making themselves equally satisfied also; and on their professing that they could not or would not do so, should burn them alive or imprison them, or strip them of their property, or deprive them of some means of happiness and comfort, or at least make them in some way feel their inferiority for not thinking and believing what they were told. It scarcely occurred even to those who had the earliest tincture of civilisation, that it was possible for two human beings of different faiths to inhabit the same country without fighting to the last extremity, till the heresy of the weaker party should be utterly extinguished. That two persons could stand at arms' length, each resolute in denying what the other affirmed, and each becoming the more convinced as the other grew more confident that such conviction was wrong, that they could each go about his own business without first coming to extremities about their opposing creeds has been the discovery of a very recent age, and attained only after centuries of experience and reflection.

1 As to the law of nature, see 1 Pat. Com. (Pers.) 99.

All governors confessed to some inexplicable impulse towards orthodoxy, as if some law of moral gravitation drove themselves-and yet not without driving all others also at the same time-towards one and the same central goal. Intolerance or persecution is as clearly the natural condition of barbarians as toleration is that of civilisation; but the progress from the one to the other has been tortuous, reluctant, and long drawn out.

The ancients on toleration.-The ancients were unsparing in their malignity towards heretics. Plato said that he, who would not submit to the established religion must die or suffer stripes and bonds, or privation of citizenship, or loss of property or exile; 2 and Plato's doctrine ruled the world till the end of the seventeenth century. The Athenian law punished with death the introduction of new deities. Socrates was made to drink poison for this alleged crime, or at least for attacking the established. religion. Anaxagoras was prosecuted by Cleon for impiety in saying nothing more than that the sun was a fiery ball of iron.5 Anacharsis was put to death by his fellowcountrymen in Scythia, because, having been an intelligent traveller, after returning home he performed rites to foreign gods; and the same fate befell Scyles for performing rites to Bacchus and wearing Greek clothes. The works of Protagoras were publicly burnt, and himself banished, because he declared that he could not make out, whether there were gods or not. Alcibiades was condemned and his goods confiscated for making light of the ceremonies of Ceres and Proserpine. The Romans also prohibited all new gods and new rites of worship.9 Suetonius says Tiberius zealously checked those practising foreign rites, and on that account Suetonius viewed him as a masterly governor.10 Paulus said such persons were banished or

8

1 The laws of Menu prohibited the people under the cruellest penalties from acquiring knowledge. If any one were to listen to the reading of the sacred books, burning oil was to be poured into his ears; and if he committed to memory what he heard he was to be killed. Wikoff, Civ. 2.

2 Plato, Leg. b. x. 3 Butler's Rom. L. 168. i. c. 1. 5 Diog. Laert. Anax.

139, §§ 51, 52.

iv. 30, xxv. 1.

8 Plut. Alcib.

4 Xen. Mem. b.

7 Diog. Laert.

Herod. b. iv. 9 Cic. de Leg. b. ii. 8, 19; Livy,

10 Suet. Tib. § 36.