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found (notwithstanding the vague limits which were placed by this statute), to be by no means a dead letter. In the 17 Elizabeth, two Anabaptists, and, in the 9 James I. two impugners of the doctrine of the Trinity, suffered under the writ de hæretico comburendo.

It may be proper to notice two cases which occurred at this period, and which appear to have been attempts to establish in effect a sort of temporal jurisdiction over heresy, by considering the maintenance of here tical opinions, under the light of a breach of the peace; they can hardly be considered, however, as establishing any principle, particularly under the circumstances of the cases and the time of their occurrence. The one was before the Star-chamber, and the other seems to have been much doubted, and to have had the opinion of the court and even the Attorney General against it, and in both, the courts took special care to decide upon the principle of the seditious and inflammatory tendency towards a breach of the peace, of which, of course, a jury would always be the judge.

The first is Atwood's case, 15 Jas. I. Cro. Jac. 421. It was error brought by him to reverse a judgment, upon an indictment before Justices of the Peace, for scandalous words: “That the religion now professed was a new religion, preaching was but prattling," &c. The error assigned was, that the offence was not inquirable by indictment, and before Justices of the Peace, but only before the High Commissioners. It was referred to the Attorney General to inquire if the offence was inquirable there, and he certified that it was not, and of that opinion, it is said, was the court, but they would inquire. From 2 Roll. 78, it appears, however, that, by some means, the opinion of the court altered, and considered the words as scandalous and indictable, not, however, for their religious tendency, but as a breach of the peace

The other case was Traske's case, (Hob. 236,) in the Star-chamber, for maintaining Judaizing opinions, "being called ore tenus; he was sentenced to fine and imprisonment, not for holding those opinions, (for those were examinable in the Ecclesiastical Courts, not here,) but for making of conven

ticles and factions, by that means which may tend to seditiou and commotion, and for scandalizing the King, the Bishops," &c.

The next important change in the law of heresy was made by the 29 Car. II. c. 9, by which the writ de hæretico comburendo, was abolished, and the offence was subjected only to ecclesiastical censures, pro salute animæ, and all harassing with temporal penalties was put an end to. Such censures, however, were not to be regarded as a trifling punishment upon the offender if put in full force, and toleration of diversity of opinion was still very incomplete.

The stat. of 1 William and Mary, c. 18, made for the purpose of giving "some ease to scrupulous consciences," effected very little difference in the condition of persons who wished to think for themselves in religious matters. Freedom of opinion and the right of private judgment, seem to have been as little understood, or rather as much deprecated by Dissenters as Churchmen; and, accordingly, the Toleration Act did little more than enable good Churchmen, in point of doctrine, to dissent from the government and ordinances of the church, and required a subscription to all the doctrinal articles of its faith, expressly providing, that persons who impugned the doctrine of the Trinity should not be considered as taking any relief under it. It, however, provided, that as far as it permitted diversity of faith and worship, the ecclesiastical courts should not interfere with any prosecutions.

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The exception of impugners of the Trinity from the benefits of this toleration, and the censures of the ecclesiastical courts to which they were left exposed, were still not considered sufficient to repress this heresy, “very prevalent," as Blackstone says, modern times;" and the stat. of the 9 and 10 William III. c. 82, was passed, which once more revived the temporal jurisdiction over this species of heresy, and imposed very heavy penalties against all impugners of the doctrine of the Holy Trinity, who were made indictable under it, in the King's Courts; which seem, in this instance, as observed by Blackstone, in the case of 2 Hen. V. c. 7, to have gained not an exclusive but a concur

rent jurisdiction over the offence with the ecclesiastical courts.

I have classed this statute under the legal head of heresy, because there can be no doubt that it is under that head that the offence against which it was directed, had always been punished, and accordingly, this method has been pursued by Hawkins, East, Blackstone, and, I believe, all our text writers on this subject. The latter observes, "the legislature hath thought it proper that the civil magistrate should again interpose with regard to one species of heresy," &c. It will be more proper to consider, under our third head, whether this act can be considered as declaratory of an offence of a different species, originally indictable at common law, and whether it has ever been treated as such; only observing here, that the word blasphemy, in the title of the act, does not seem at all to affect the nature of the offence, that being a term very ill, or rather not at all defined in our law, and applied, in most instances, as an epithet of reproach against speculative differences, from the established faith, as well as opinious hostile to religion in general.

The measure of intolerance, so far as regards opinion on doctrinal points, seems, therefore, to have been very full, notwithstanding the boasted act of toleration, as it is called, and continued so for a long period, till at length, by the 19 Geo. III. c. 44, the benefit of the toleration act, and, of consequence, the suspension of ecclesiastical prosecution, are extended to those who, instead of subscribing the articles, merely sign a declaration of their belief that the Scriptures contain the revealed will of God. Though impugners of the doctrine of the Trinity were still excepted from the benefit of this act, the power of the Ecclesiastical Courts was materially abridged by it, and seems to be now almost, if not altogether, destroyed by the 53 Geo. III. which repeals the excepting clause, and thus appears to put an end to any prosecution for heresy, against persons who comply with the provisions of the toleration act, as enlarged and extended by the 19 Geo. III.

By the same statute of the 58 Geo. III. the temporal punishment imposed by the 9 and 10 William III. was

abolished, and thus ended all common law jurisdiction over heresy.

2. Non-conformity, and Offences against the Ordinances and Worship of the Established Church. It seems unnecessary to enter minutely into the history of this offence, as it had no farther existence than the authority of the statutes which created it, and died with them.

"My Lords," said Lord Mansfield, (in his memorable speech in the House of Lords, in the case of Evans, reported by Dr. Furneaux,)“there never was a single instance, from the Saxon times down to our own, in which a man was ever punished for erroneous opinions concerning rites or modes of worship, but upon some positive law. The common law of England, which is only common reason or usage, knows of no prosecution for mere opinions. For Atheism, blasphemy, and reviling the Christian religion, there have been instances of persons prosecuted and punished upon the common law; but bare non conformity is no sin by the common law, and all positive laws inflicting any pains or penalties for non-conformity to the established rites and modes, are repealed by the act of toleration, and Dissenters are thereby exempted from all ecclesiastical censures."

This seems to be now the settled. law on the subject, and, accordingly, the courts have acted upon it in many cases, as well as the above of Evans; the statute of superstitious uses is considered as virtually repealed by it, so far as relates to Dissenters, and the Court of Chancery now administers trusts for the support of their worships, which were, previous to the toleration act, bad. The enlargement of this act, by the 19 Geo. III. and the repeal of the clause excepting impuguers of the doctrine of the Trinity, by the 53 Geo. III. has placed Dissenters from the doctrine of the church, on an equal footing with those who only dissent from its worship; and its provisions have not only exempted "their way of worship," in the words of Lord Mansfield, "from punishment, but rendered it innocent and lawful; have put it not merely under the connivance, but, under the protection of the law, have established it. For nothing can be plainer, than that the law protects nothing in that very

respect, in which it is, at the same time, in the eye of the law, a crime."

An opinion contrary to this has, however, been sustained by consider able authority, and particularly by Blackstone, who says, "that the crime of non-conformity is by no means abrogated." Baron Perrott, in Evans's case, in opposition to all the other judges, contended, that the toleration act amounted to nothing more than an exemption from the penalties of certain laws then particularly mentioned; an opinion which has been most extraordinarily revived by the present Lord Chancellor, and expressed in the same words, only a few days ago, in the case of the Attorney General, on the relation of Maunder v. Pearson, reported in your July Number. But this opinion has never been adopted in practice, and, on the contrary, it has been repeatedly decided by the unanimous judgment of judges and parliament, "that the toleration act removed the crime, as well as the penalty of non-conformity"

The whole subject has been ably commented upon, and enforced by Dr. Furneaux, in his Letters to Black

stone.

Under this head, then, there can be no doubt that, as Dissenters, impugners of the doctrine of the Trinity stand, in common with the rest of their brethren, clear, not only of penalty, but of crime in the eye of the law, and protected as amply in the exercise of their worship as others; and on this part of the subject it will, therefore, be manifest, not only that this class of Dissenters are unaffected by any common law, or statute offence as non-conformists, but that if they are protected and their worship established under the provisions and restrictions of express statutes, as they undoubtedly are, that circumstance will furnish strong additional ground to contend that the law, when it placed them in that situation and repealed all express enactment against them, could not mean to consider them as indictable at common law for the expression of opinions, in the free exercise of which they are sanctioned and protected.

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the protection of the worship of the Established Church, particularly the 1 Eliz. c. 2, which prohibits railing attacks on the Common Prayer Book; to which protection (when the point of an establishment of a particular religion and form of worship is conceded), there does not seem much objection, and it appears to me, therefore, that Blackstone has not at all merited the censure that has been lavished upon him for his defence of this statute.

3. We come to the head of Offeuces against God and Religion in general, which are the only offences indictable at common law, and under which head, therefore, as we have seen, must be included the impugning the doctrine of the Trinity, if it is to be considered as an offence at common law.

In the first place, it will be expedient to look at the description or definition of this offence, as given by our text writers, in order to ascertain as well as we can, some principle on which this branch of common law jurisdiction proceeds. We shall then investigate the different cases on the subject, to discover how far they establish it, and from thence our way will be clear to see whether the simple impugning of the doctrine of the Trinity comes within that principle, and the cases on which it is founded.

It may be proper first, however, to observe, that this branch of the common law, although depending on a very ancient principle of interference, viz. the breach of the peace, is of comparatively modern date in prac tice: and on the subject, our old law books are therefore perfectly silent— the cognizance of the offence having, in fact, till of late resided in the ecclesiastical courts only, to which, as far as regarded the expression of opinion on religious subjects, it undoubtedly exclusively belonged; and we shall accordingly find, that when the common law jurisdiction began to be enforced, the ground on which the temporal courts took up the offence, was much debated, and the boundary of their authority laid down with considerable precision. Hawkins (Pleas of the Crown, ch. 5), thus enumerates the offences of this kind. 1. "All blasphemies against God, as denying his being or providence, and all contumelions reproaches of Jesus Christ,"

for which he cites 1 Ven. p. 293. S Keb. pp. 607, 621. 2. "All profane scoffing at the Holy Scripture, or exposing any part thereof to contempt or ridicule." 3. "Impostures of religion," &c., for which he cites Nailor's case, &c. 4. "Certain immoralities." And he states the principle on which these offences are so considered to be as follows: "Offences of this nature, because they tend to subvert all religion or morality, which are the foundation of government, are punishable by the temporal judges with fine," &c. 5. "Seditious words in derogation of the established religion are indictable, as tending to a breach of the peace," for which he cites the case above noted, namely Atwood's case. Cro. Ja. 421, which seems to be the only case on the subject, and as we have seen is of rather doubtful authority, though it certainly is not at all material to our purpose to contend that attacks on the established religion, or any other part of our constitution, ought not to be restrained within the bounds of order and decency.

This description and enumeration of offences, is repeated with little variation by East and by Burn in his Ecclesiastical Law, Title, Profaneness. Blackstone's definition is much to the same effect: "The fourth species of offences more immediately against God and religion, is that of blasphemy against the Almighty, by denying his being or providence; or by contumelious reproaches of our Saviour Christ. Whither also may be referred, all profane scoffing at the Holy Scriptures, or exposing them to contempt and ridicule. These are offences punishable at common law by fine, &c., for Christianity is part of the laws of England." Vol. iv. 59. And the same writer has, in a previous part of the same chapter, illustrated this subject by the following observatious on apostacy: "The belief of a future state of rewards and punishment; the entertaining just ideas of the moral attributes of the Supreme Being; and a firm persuasion that he superintends, and will finally compensate, every action in human life (all which are clearly revealed in the doctrines, and forcibly inculcated by the precepts, of our Saviour Christ); these are the grand foundation of all judicial oaths, which call God to witness the truth of

those facts, which perhaps may be only known to him and the party attesting. All moral evidence, therefore, all confidence in human veracity, must be weakened by apostacy, and overthrown by total infidelity. Wherefore all affronts to Christianity, or endeavours to depreciate its efficacy, in those who have once professed it, are highly deserving of censure." To oppose "such principles as destroyed all moral obligation," he adds, “it was enacted by Stat. 9 and 10 Wm. HI. c. 32," (the part of the statute relating to the doctrine of the Trinity being not here noticed by the Commentator, but inserted in its proper place, under the head of Heresy,) "That if any person educated, &c. in the Christian religion, shall by writing, &c. deny the Christian religion to be true, or the Holy Scriptures to be of divine authority, he shall, &c."

It is not our business to stop to expose the equivocation and glaring weakness of the above reasoning, so ably animadverted on by Dr. Furneaux. Granting the learned Com mentator the whole extent of his argument, it aims at establishing no principle with which Unitarians, quasi Unitarians, can at all quarrel; all that he contends for, being, that Christianity in general is parcel of the laws of England, and that they will defend it from attacks which threaten the dissolution of its moral obligations. We can, as Unitarian Dissenters, have no objection to the principle for which he quotes the words of Cicero, "Utiles esse opiniones has quis negat, cum intelligat, quam multa ferinentur jurejurando; quantæ salutis sint fœderum religionis, quam multos divini supplicii metus a scelere revocaret, quamque sancta fit societas civium inter ipsos, Diis immortalibus interpositis tum judicibus tum testibus ?"

I shall add to these quotations from our text writers, the words of Mr. Holt, in his Law of Libel, p. 64: "The first grand offence of speech and writing, is speaking blasphemously against God, or reproachfully concerning religion, with an intent to subvert man's faith, or to impair his reverencè of him."

Mr. Starkie, in his treatise on the Law of Libel, p. 486, says, "It is the close connexion between moral obligation and opinions on religious and

theological topics, which, as it were, invests the temporal courts with jurisdiction over the latter, which are apparently of mere spiritual concern. The importance of this relation is strongly illustrated in the instance of judicial oaths." "Upon the dangerous temporal consequences likely to proceed from the removal of religious and moral restraints, the punishment for blasphemous, profane and immoral publications is founded." "Blasphemy against the Almighty, by denying his being, or providence, contumelious reflections upon the life and character of Jesus Christ, and in general, flippant and indecorous remarks upon the Holy Scriptures, are offences at common law; for Christi anity, it has been said, is a part of that law."

Enough has been said to shew the ground on which the temporal courts interfere, viz. the necessity of the maintenance of religion in general, as the bond of moral obligation, and the tendency of the opinion maintained to weaken that bond; and even to this extent, it appears now to be considered to be a necessary ingredient that the attack should be indecent and disorderly, in order to bring it within the proper scope of the temporal courts. "The law does not prohibit reasonable controversy, even upon fundamental subjects, so long as it is conducted with a tone of moderation, which shews that argument is the only purpose; the writer abstaining from terms which are abusive and passionate, and therein indecorous towards the establishment, and offensive to the consciences of individuals." "What is argumentative may very properly be left to be replied to by argument; what is passionate, &c. cannot be so safely passed over: such a suffrance would be the endurance of brawls. When the law is moved against such writers, it is not persecution, it is a defence of the public tranquillity and decency."-Holt.

The following passages also from Mr. Starkie's book, pp. 495, 496, express the same opinion: "Both the language of the indictments, therefore, and the guarded expression of the court, in the above case, (Woolston's,) shew that it was never a crime in the contemplation of the law, seriously and conscientiously to discuss theolo

gical and religious topics, though in the course of such discussions doubts may have been both created and expressed on doctrinal points, and the force of a particular piece of scriptural evidence casually weakened." "Upon the whole, it may be not going too far to infer from these principles and decisions, that no author or preacher, who fairly and conscientiously promulgates the opinions, with whose truth he is impressed, for the benefit of others, is, for so doing, amenable as a criminal."

In Lord Erskine's speech in the case of the King v. Williams, he observed, that "Every man has a right to investigate with reason controversial points of the Christian religion; but no man, consistently with a law which only exists under its sanctions, has a right to deny its very existence, and to pour forth such shocking and insulting invectives as the lowest establishments in the gradations of civil authority ought not to be subjected to, and which would soon be borne down by violence and disobedience, if they were."

We will now proceed to the cases which have established and laid down the principle of temporal interference, and which are not very numerous. The first is Taylor's case, 1 Ventr. 293. Hil. Term, 27 and 28 Car. II. (the year before the writ de hæretico comburendo, was abolished), before Chief Justice Hale. It was "an information exhibited in the Crown Office, for uttering blasphemous expressions, such as that Jesus Christ was a bastard, religion was a cheat, &c. Hale said, that such kind of wicked blasphemous words, were not only an offence to God and religion, but a crime against the laws, state and government, and, therefore, punishable in this court. For, to say religion is a cheat, is to dissolve all moral obligation, whereby civil societies are preserved, and that Christianity is parcel of the law, and therefore to reproach the Christian religion, is to speak in subversion of the law." The same case is reported, 3 Keh. 607–621, and Hale is there reported to have said, "these words, though of ecclesiastical cognizance, yet that religion is a cheat, tends to the dissolution of all government, and therefore punishable here." "For taking away religion, all

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