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[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. 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 became somewhat moderated; for though in what heresy consisted was still not precisely defined, yet the legislature explained in some points what is 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 clergy-monastic 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 “spiritual and temporal, and the commons, in parliament “ assembled, did not only render and give unto his high“ness 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 anima, 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(z). For Christianity is part of the laws of England ; and a blasphemous libel may be prosecuted as an offence at common law, and punished with fine and imprisonment (a).]
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 (6). 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 (c).
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 the sacrament of the Lord's Supper should be punished
(z) Hawk. P. C. b. 1, c. 5, s. 5. fondés.” (See the Year Book, 34
(a) Hawk. ubi sup.; 1 Vent. Hen. 6, 40.) And that Christianity 293; R. v. Woolston, Str. 834; is part of the law of England, is R. v. Carlisle, 3 B. & Ald. 161. again judicially asserted in the In the thirty-fourth year of Henry judgment of Chief Baron Kelly, in the sixth, Chief Justice Prisot de- the recent case of Cowan v. Milclared in the Court of Common bourn, Law Rep., 2 Exch. 230. Pleas,—“Scripture est common ley, (6) 4 Bl. Com. p. 50. sur quel touts manieres de leis sont (c) Vide sup. vol. II. p. 702.
by fine and imprisonment. And by the statute 1 Eliz. c. 2, that if any ordained minister should speak any thing in derogation of the Book of Common Prayer, he should, if not beneficed, be imprisoned one year for the first offence, and for life for the second: and, if beneficed, he should 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 should 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 should 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. Nor can the milder penalties, at least, provided by these enactments be thought too severe and intolerant; so far as they were 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 (d).
V. [Another offence against God and religion is that of profane and common swearing and cursing. And by 19 Geo. II. c. 21, which repealed all former statutes on this subject, every labourer, sailor, or soldier profanely cursing or swearing, shall forfeit one shilling (e); every
(d) See also the provisions con- subject to that Act, who shall be tained in 9 & 10 Will. 3, c. 32, sup. guilty of profane swearing, shall be
dismissed her majesty's service with (e) It also forms one of the arti- disgrace, or suffer such lesser punishcles of war contained in the Naval ment as by that Act authorized (29 Discipline Act, 1866, that any person & 30 Vict. c. 109, s. 27). VOL. IV.
[other person, under the degree of a gentleman, two shillings; and every gentleman or person of superior rank, five shillings; to the poor of the parish wherein such offence was committed (f). And, on a second conviction, shall forfeit double, and for every subsequent offence, treble, the sum first forfeited, with all charges of conviction; and, in default of payment, shall be sent to the house of correction for ten days. Any justice of the peace may convict upon his own hearing or the testimony of one witness. And any constable or peace officer, upon his own hearing, may secure any offender and carry him before a justice, and there convict him; but the conviction must be within eight days after the committal of the offence. If the justice omits his duty, he forfeits five pounds, and the constable forty shillings.]
VI. Another offence of the description under consideration, is that of using pretended witchcraft, conjuration, enchantment, and sorcery. Our law once included in the list of crimes, that of actual witchcraft or intercourse with evil spirits: and though it has now no longer a place among them, its exclusion is not to be understood as implying a denial of the possibility of such an offence. [To deny this, would be to contradict the revealed word of God in various passages both of the Old and New Testament; and the thing itself is a truth to which every nation in the world hath in its turn borne testimony; either by examples seemingly well attested, or by prohibitory laws, which at least suppose the possibility of a commerce with evil spirits. Wherefore it seems to be the most eligible way to conclude, with an ingenious writer, that in general there has been such a thing as witchcraft, though one cannot give credit to any particular modern instance of it (9).
Our forefathers were stronger believers when they (f) See a modern conviction v. Scott, 4 B. & Smith, 368. under this enactment, The Queen (9) Mr. Addison, Spect. No. 117.