casioned several disabilities and restrictions (which I shall not undertake to justify) to be laid upon them by abundance of statutes, yet at length the legislature, with a spirit of true magnanimity, extended that indulgence to these sectaries, which they themselves, when in power, had held to be countenancing schism, and denied to the church of England. The penalties are conditionally suspended by the statute 1 W. & M. st. 1. c. 18. "for exempting their majesties' protestant "subjects, dissenting from the church of England, from the

66

penalties of certain laws," commonly called the toleration act; which is confirmed by statute 10 Ann, c. 2., and declares that neither the laws above mentioned, nor the statutes 1 Eliz. c. 2. § 14., 3 Jac. I. c. 4. & 5., nor any other penal laws made against popish recusants (except the test acts), shall extend to any dissenters, other than papists and such as deny the Trinity: provided, 1. that they take the oaths of allegiance and supremacy (or make a similar affirmation, being quakers 2), and subscribe the declaration against popery; 2. that they repair to some congregation certified to and registered in the court of the bishop or archdeacon, or at the county sessions; 3. that the doors of such meeting-house shall be unlocked, unbarred, and unbolted; in default of which the persons meeting there are still liable to all the penalties of the former acts. Dissenting teachers, in order to be exempted from the penalties of the statutes 13 & 14 Car. II. c. 4., 15 Car. II. c. 6., 17 Car. II. c. 2., and 22 Car. II. c.1. are also to subscribe the articles of religion mentioned in the statute 13 Eliz. c. 12. (which only concern the confession of the true christian faith, and the doctrine of the sacraments,) with an express exception of those relating to the government and powers of the church, and to infant baptism; or if they scruple subscribing the same, shall make and subscribe the declaration prescribed by statute 19 Geo. III. c. 44. professing themselves to be christians and protestants, and that they believe the scriptures to contain the revealed will of God, and to be the rule of doctrine and practice. Thus, though the crime of non-conformity is by no means universally abrogated, it is suspended and ceases to

* 23 Eliz. c. 1. 29 Eliz. c.6. 35 Eliz. c. i. 22 Car. II. c. 1.

The ordinance of 1645 (before cited) inflicted imprisonment for a year on the third offence, and pecuniary

penalties on the former two, in case of using the book of common prayer not only in a place of public worship, but also in any private family.

2 See stat, 8. Geo. I. c. 6.

[

exist with regard to these protestant dissenters, during their
compliance with the conditions imposed by these acts: and,
under these conditions, all persons, who will approve them-
selves no papists or oppugners of the Trinity (4), are left at
full liberty to act as their consciences shall direct them, in the
matter of religious worship. And if any person shall wilfully,
maliciously, or contemptuously disturb any congregation,
assembled in any church or permitted meeting-house, or shall
misuse any preacher or teacher there, he shall (by virtue of
the same statute, 1 W. & M.) be bound over to the sessions of
the
peace, and forfeit twenty pounds. But by statute 5 Geo. I.
c. 4. no mayor or principal magistrate must appear at any dis-
senting meeting with the ensigns of his office, on pain of
disability to hold that or any other office: the legislature
judging it a matter of propriety, that a mode of worship, set
in opposition to the national, when allowed to be exercised
in peace, should be exercised also with decency, gratitude,
and humility. Dissenters also, who subscribe the declaration
of the act 19 Geo. III. are exempted (unless in the case of
endowed schools, and colleges,) from the penalties of the
statutes 13 & 14 Car. II. c. 4. and 17 Car. II. c. 2. which pro-
hibit (upon pain of fine and imprisonment) all persons from
teaching school, unless they be licensed by the ordinary, and
subscribe a declaration of conformity to the liturgy of the
church, and reverently frequent divine service, established by
the laws of this kingdom. (5)

up

a Sir Humphry Edwin, a lord mayor of London, had the imprudence soon after the toleration act to go to a presbyterian meeting-house in his forma

lities; which is alluded to by Dean Swift, in his tale of a tub, under the allegory of Jack getting on a great horse, and eating custard.

(4) As to these last see ante, p. 50. n. 3.

(5) An important statute upon this subject was passed in the close of the last reign (the 52 G.3. c.155.) by which the 13 & 14C. 2. c.1. 17 C. 2. c. 2. and 22 C. 2. c. 1. are repealed; and it is enacted, that places of religious worship for protestants shall be certified to, and registered in the bishop's or archdeacon's court, and at the general or quarter sessions, that persons officiating in, or resorting to places of worship so certified, shall be exempt from all pains or penalties relieved against by the toleration act, as fully as if they had taken the oath, and made the declaration mentioned in that act. But every one preaching or teaching at such place, shall, when required by a magistrate, take and subscribe the oath and declaration specified in the 19 G. 3. c.44.; and if not required so to do, he may call upon

any

As to papists, what has been said of the protestant dissenters would hold equally strong for a general toleration of them; provided their separation was founded only upon difference of [55] opinion in religion, and their principles did not also extend to a subversion of the civil government. If once they could be brought to renounce the supremacy of the pope, they might quietly enjoy their seven sacraments, their purgatory, and auricular confession; their worship of reliques and images; nay, even their transubstantiation. But while they acknowledge a foreign power, superior to the sovereignty of the kingdom, they cannot complain if the laws of that kingdom will not treat them upon the footing of good subjects.

LET us therefore now take a view of the laws in force against the papists; who may be divided into three classes, persons professing popery, popish recusants convict, and popish priests. 1. Persons professing the popish religion, besides the former penalties for not frequenting their parish church, are disabled from taking their lands either by descent or purchase, after eighteen years of age, until they renounce their errors; they must at the age of twenty-one register their estates before acquired, and all future conveyances and wills relating to them; they are incapable of presenting to any advowson, or granting to any other person any avoidance of the same; they may not keep or teach any school under pain of perpetual imprisonment; and if they willingly say or hear mass, they forfeit the one two hundred, the other one hundred marks, and each shall suffer a year's imprisonment. Thus much for persons, who, from the misfortune of family prejudices or otherwise, have conceived an unhappy attachment to the Romish church from their infancy, and publicly profess it's errors. But if any evil industry is used to rivet these errors upon them, if any person sends another abroad to be.

any magistrate to administer such oath to him, and to attest his subscription to such declaration, and to give him a certificate thereof, which certificate will exempt him from certain civil offices and burthens, supposing he employs himself solely in the duties of a teacher or preacher, and does not follow any trade or other occupation but that of a schoolmaster. These places of religious assembly must not be locked, bolted, or barred; but they are protected by penalties from disturbance. The act does not extend to places in which the service is performed according to the rites and ceremonies of the established church, nor to the meetings of Quakers.

educated in the popish religion, or to reside in any religious house abroad for that purpose, or contributes to their maintenance when there; both the sender, the sent, and the contributor, are disabled to sue in law or equity, to be executor or administrator to any person, to take any legacy or deed of gift, and to bear any office in the realm, and shall forfeit all their goods and chattels, and likewise all their real estate for life. And where these errors are also aggravated by apostacy, or perversion, where a person is reconciled to the see of [56] Rome, or procures others to be reconciled, the offence amounts to high treason. 2. Popish recusants, convicted in a court of law of not attending the service of the church of England, are subject to the following disabilities, penalties, and forfeitures, over and above those before mentioned. They are considered as persons excommunicated; they can hold no office or employment; they must not keep arms in their houses, but the same may be seized by the justices of the peace; they may not come within ten miles of London, on pain of 100l.; they can bring no action at law, or suit in equity; they are not permitted to travel above five miles from home, unless by licence, upon pain of forfeiting all their goods; and they may not come to court under pain of 100l. No marriage or burial of such recusant, or baptism of his child, shall be had otherwise than by the ministers of the church of England, under other severe penalties. A married woman, when recusant, shall forfeit two-thirds of her dower or jointure, may not be executrix or administratrix to her husband, nor have any part of his goods; and during the coverture may be kept in prison, unless her husband redeems her at the rate of 10l. a month, or the third part of all his lands. And, lastly, as a femecovert recusant may be imprisoned, so all others must, within three months after conviction, either submit and renounce their errors, or, if required so to do by four justices, must abjure and renounce the realm: and if they do not depart, or if they return without the king's licence, they shall be guilty of felony, and suffer death as felons without benefit of clergy. There is also an inferior species of recusancy, (refusing to make the declaration against popery, enjoined by statute 30 Car. II. st. 2. when tendered by the proper magistrate,) which, if the party resides within ten miles of London, makes him an absolute recusant convict; or if at a greater distance, suspends

This is
But, 3.

him from having any seat in parliament, keeping arms in his
house, or any horse above the value of five pounds.
the state, by the laws now in being, of a lay papist.
The remaining species or degree, viz. popish priests, are in a
still more dangerous condition. For by statute 11 & 12 W.III.
c. 4. popish priests or bishops, celebrating mass, or exercising
any part of their functions in England, except in the houses
of ambassadors, are liable to perpetual imprisonment. And
by the statute 27 Eliz. c. 2. any popish priest, born in the do-
minions of the crown of England, who shall come over hither
from beyond sea, (unless driven by stress of weather, and tar-
rying only a reasonable time,) or shall be in England three
days without conforming and taking the oaths, is guilty of
high treason: and all persons harbouring him are guilty of
felony without the benefit of clergy.

THIS is a short summary of the laws against the papists, under their three several classes, of persons professing the popish religion, popish recusants convict, and popish priests. Of which the president Montesquieu observes, that they are so rigorous, though not professedly of the sanguinary kind, that they do all the hurt that can possibly be done in cold blood. But in answer to this it may be observed, (what foreigners who only judge from our statute-book are not fully apprized of,) that these laws are seldom exerted to their utmost rigour and, indeed, if they were, it would be very difficult to excuse them. For they are rather to be accounted for from their history, and the urgency of the times which produced them, than to be approved (upon a cool review) as a standing system of law. The restless machinations of the jesuits during the reign of Elizabeth, the turbulence and uneasiness of the papists under the new religious establishment, and the boldness of their hopes and wishes for the succession of the queen of Scots, obliged the parliament to counteract so dangerous a spirit by laws of a great, and then perhaps necessary, severity. The powder-treason, in the succeeding reign,

* Stat. 23 Eliz. c. 1. 27 Eliz. c. 2. 29 Eliz. c. 6. 35 Eliz. c. 2. 1 Jac. I. c. 4. 3 Jac. I. c.4.& 5. 7 Jac. I. c.6. 3 Car. I. c.2. 25 Car. II. c.2. 30Car. II. st. 2. 1 W. & M. c. 9. 15. & 26.

11 & 12 W. III. c. 4. 12 Ann. st. 2.
c. 14. 1 Geo. I. st. 2. c.55. 3 Geo. I.
c.18. 11 Geo. II. c. 17.

< Raym. 377. Latch. 1.
Sp. L. b. 19. c.27.

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