James Fitzjames Stephen.

A history of the criminal law of England online

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was 35 Eliz. c. 1. " An Act to retain the Queen's Majesty's
" subjects in their due obedience." It provided that any
person who obstinately refused to come to church, and per-
suaded others to withstand her 'Majesty's ecclesiastical
authority, or persuaded any other person not to go to church
and to go to any unlawful conventicle, should be imprisoned
till he conformed. If he did not conform within three
months, he was to abjure the realm, and if, after abjuration,
he did not leave the realm, or returned to it without license,
he became guilty of felony without benefit of clergy.

The law relating to Protestant dissenters stood thus till
the Civil War, being enforced with various degrees of rigour
according to the circumstances of the time ; but in estimating
its severity it must be remembered that the Court of High
Commission and the ecclesiastical courts exercised their
powers down to the year 1640 in the manner already
suflSciently illustrated.

During the Civil War, and under the Commonwealth and
Cromwell's protectorship, the law on this subject underwent
a succession of remarkable changes. The first took place
immediately after the battle of Naseby, when the Presby-
terians were at the height of their power. It was eflFected by
an ^ordinance dated August 23, 1645, which ordered all
ministers to make use of a new service-book called the
Directory, then lately framed by the Westminster divines,
and forbad the use of the Book of Common Prayer, not only
in all places of public worship, but in any private place or
family, under the penalty of £5, and £10 fine, and a year's
imprisonment, for the first, second, and third oflFences

This ordinance was by no means satisfactory to the Inde-

^ S. 14 in Pickering's StattUes, The Revised Statutes omit the repealed
parts of the act, and renumber the parts which are unrepealed.
' Neal's PuritanSf iii. p. 131.


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cbomwell's legislation. 479

pendents, and ^ eflforts were made to frame some scheme by Ch. XXV.
which they could be comprehended under the Presbyterian
government without oppression. These attempts, however,
failed, as there was no room for a compromise between men
who claimed the spiritual government of others by divine
right, and those who peremptorily refused to admit their
claim. By degrees, however, the Independents obtained the
upper hand, and they established, especially under the Pro-
tectorate, a form of Church government much less stringent
than Presbyterianism. The principal points in its history
were as follows : —

On the point of his departure for Ireland in 1649,
^ Cromwell wrote to Parliament recommending the removal
of all penal laws on religion, and in this he was seconded by
Fairfax and his army. The Parliament thereupon ^ repealed
all the acts of Elizabeth already referred to, but provided
that, in order to prevent pro£a»ne or licentious persons from
neglecting the performance of religious duties, all persons
should resort to some place of religious worship every Sunday.
It also legislated against adultery and incest, which were
made felony, and fornication, which on a first offence sub-
jected the offender to three months' imprisonment, and on
the second was felony without benefit of clergy. The law,
already noticed, as to " blasphemous and execrable opinions,"
formed part of the same legislation.

The Irish campaign, the invasion of Scotland, the defeat of
the Presbyterians at the battle of Dunbar, and the termina-
tion of the second civil war by the battle of Worcester, the
expulsion of the last remnant of the Long Parliament, and
the failure of the Barebone Parliament, led to the estab-
lishment of Cromwell as Protector, first under the Instrument
of Government (December 16, 1653), and afterwards under
the Humble Petition and Advice (March 29, 1657). Each
of these memorable documents contained a statement of
principles as to religious belief which represented fedrly the
practice of Cromwell during his tenure of power. *They
were thus stated in the Instrument of Government : —

Art. 35. "That the Christian religion contained in the

1 Neal's Puritans, iii. pp. 183-142. » Ih. iv. p. 8. » lb. p. 26. * lb, p. 69.


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480 Cromwell's "instrument of government."

Ch. XXV. "Scriptures be held forth and recommended as the public
" profession of these nations,; and that as soon as may be
'' a provision less subject to contention and more certain than
" the present be made for the maintenance of ministers ; and
" that till such provision be made the present maintenance
" continue."

36. "That none be compelled to conform to the public
'* religion by penalties or otherwise ; but that endeavours be
" made to win them by sound doctrine and the example of a
" good conversation."

37. " That such as profess faith in God by Jesus Christ,
" though diflfering in judgment from the doctrine, worship, or
" discipline publicly held forth, shall not be restrained from,
" but shall be protected in, the profession of their faith and
" exercise of their religion, so as they abuse not this liberty
" to the civil injury of others and to the actual disturbance of
*' the public peace on their parts : provided this liberty be not
" extended to popery or prelacy, or to such as, under a pro-
" fession of Christ, hold forth and practise licentiousness."

In its debates on this subject, * Parliament tried to abridge
the generality of the 37th Article by drawing up a list of
fundamental points on which agreement should be required,
and they elaborated sixteen propositions " intended to exclude
" not only Deists, Socinians, and Papists, but Arians, Anti-
'* nomians, Quakers, and others," but this seems to have
come to nothing.

*The corresponding part of the Humble Petition and
Advice goes into considerably greater detail than the
Instrument of Gk>vemment, but is to much the same effect.
In substance, it provides that all forms of Christian wor-
ship are to be permitted and protected, except Deism or
Socinianism, popery, and prelacy. Matters stood thus till
the restoration of Charles 11. Upon that event, the Com-
monwealth legislation being treated as void, except in some
particular points on which it was confirmed by express
enactments, the law as to conformity stood as Elizabeth had
left it, the High Commission Court however being taken
away and the ecclesiastical courts being greatly restrained in
1 Neal, iv. pp. 89-91. * lb. p. 163.


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their operations by the abolition of the ex officio oath. Under Ch. XXV.
this state of the law those who dissented from the Church
of England, as constituted by Edward VI.'s Prayer-book and
Articles, were subject to severe penalties. They might be
fined £20 a month if they did not go to church; they
might be banished if they persuaded others to go to illegal
religious meetings, and all such meetings were illegal except
those of the Church by law established. This state of
things, however, by no means satisfied the party which had
regained power. They insisted upon and carried the act of
Uniformity of 1662 (13 & 14 Chas. 2, c. 4), which was in
various ways far more stringent than the older act. It
required *far more explicit declarations of assent and consent
to the articles and other contents of the new Book of Common
Prayer than had been required to the old one. * It made
episcopal ordination an absolutely essential condition to
holding preferment in the Church of England. The new
Prayer-book also contained matter which was not in the
old one, and which was vehemently objected to by what
we should call the Low Church party. The legal eflTect of the
substitution of the new for the old Prayer-book and Act of
Uniformity was largely to increase the class to whom all
the severe penalties eliacted by the statutes of Elizabeth
applied, and tx) make it more difficult for them than it
had been before to bring themselves to obey the law.

The legislation of Charles II. against Dissenters did not,
as is well known, stop here. In 1665 was passed 17 Chas. 2,
c. 2, known as the Five-mile Act. It provided in substance
that no Nonconformist minister should " come or be within "
five miles of any town represented in Parliament, or any
place where he had acted as such minister, " unless only in
"parsing upon the road," without swearing to the doctrine
that it is not lawful upon any pretence whatever to take up
arms against the king, and that the person swearing " will
" not at any time endeavour any alteration of government
** either in Church or State." The persons in question were
also prohibited from keeping schools (s. 4).

^ See 8s. 4 and 17, and compare 13 Eliz. c. 12, ss. 1 and 3 (Pickering).
» Ss. 13, 14. V '^

VOL. n. II


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Ch. XXV. In 1670 was passed the act to suppress seditious con-
venticles (22 Chas. 2. c. 1). This act authorised, and in
^ stringent terms required, all peace oflBcers to disperse all
conventicles, breaking open doors if necessary (s. 9) for that
purpose. Persons attending such conventicles were liable to
5^. penalty for a first, and to lO^. for a second offence, and
preachers to penalties of £20 and £40, and the owners of
houses who permitted their houses to be so used to a
penalty of £20. "Lieutenants, or deputy-lieutenants, or any
" commissionated officer of the militia or other his Majesty's
"forces," were required on a certificate by one justice to
disperse such conventicles by military force.

The law relating to Protestant Dissenters stood thus till
the Revolution of 1688. Of the manner in which it was
administered, and of the degree in which it contributed to
the overthrow of the government of James IL, I need say
nothing ; nor does it Ml within my province to discuss the
manner in which the Protestant Dissenters refused to be
bribed by James II. into an approval of the obviously ill^;al
measures by which he tried to gain their support in favouring
the members of his own Church. Their reward was the
Toleration Act (1 Will. & Mary, c. 18). It is a narrow and
jealously-worded concession. It does not repeal one of the
acts to which reference has been made, but after reciting
that ** some ease to scrupulous consciences in the exerdse of
** religion may be an effectual means to unite their Majesties'
*' Protestant subjects in interest and affection," it proceeds to
enact that no one shall be liable to the penalties contained
in the various acts which I have noticed who makes certain
declarations or takes certain oaths set out in the act. It
also provides (s. 5) that "if any assembly of persons dissenting
" from the Church of England shall be found in any place
"of religious worship with the doors locked, bolted, or
" barred," the persons present are to receive no benefit from
the act. It is also provided " that neither this act, nor any
''clause, article, or thing therein contained, shall extend,
" or be construed to extend, to give any ease, benefit, or

^ ** Any justice wilfully and willingly omitting to perform his dnty was liable
" to a penalty of £100 by s. 11, and every constable to a penalty of £5."


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" advantage to any papist or popish recusant whatever, or Ch. XXV.
*' any person who shall deny in liis preaching or writing the
"doctrine of the blessed Trinity as it is declared in the
'' Thirty-nine Articles.'*

Practically the Toleration Act put an end to the attempt
to treat Protestant dissent as a crime, though theoretically it
interfered in no degree with the general principle that the
State ought to regulate religion, and that it is a duty to obey
the law upon that as upon other subjects. The old statutes
became obsolete, but they continued to exist upon paper for
a great length of time.

The Five-mile Act and the Conventicle Act were repealed
by 52 Geo. 3, c. 155, a.d. 1812, which also contains a section
(s. 4) the effect of which is to extend to Unitarians the
advantages of the Toleration Act; for it applies to every
person officiating in or resorting to any congregation of
Protestants whose place of meeting is duly certified under the
act, and it makes no condition as to belief in the Trinity.

Two of the acts of Elizabeth — ^namely, the acts of 1581
and 1593 — continued to be nominally in force, subject to the
provisions of the Toleration Act, till 1844, when they were
repealed by 7 & 8 Vic. c. 102. The section of Elizabeth's
Act of Uniformity (1 Eliz. c. 2, s. 14) which made attendance
at church obligatory under a penalty of a shilling, was
repealed in 1846 by 9 & 10 Vic. c. 69. The result of the
whole is that it may now be stated broadly that uniformity
in public worship is no longer one of the objects sanctioned
by the criminal law.

I now come to the legislation against Roman Catholics.
It waff extremely intricate and severe, and may be referred
to three distinct periods, namely, the reign of Elizabeth, the
reign of James I., and the reign of William III.

It is to be observed, in the first place, that the offence of
nonconformity to the Established Church was one which was
committed as much by a Roman Catholic as by a Protestant
Dissenter. Each was equally bound by law to attend the
services of the Established Church, and each was liable to the
same penal consequences for refusing to do so. It is un-
necessary, therefore, to repeat what has already been said on

I I 2


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Ch. XXV. this subject; though I may observe that the expression
*' popish recusant," which continually occurs in the acts on
the subject, means ^ a Roman Catholic who, because he is
one, refuses to come to church.

It must also be observed that practically several of the
statutes by which it was made high treason or an offence
punishable by prcemunire to deny the royal supremacy
may be regarded either as creating offences against the
State or offences against religion. Having already referred
to many of them in giving the history of the law relating to
political offences, I need not return to the subject. 1 may,
however, observe that several of the treasons created in
Elizabeth's reign seem to fall rather under the head of
offences against religion than under that of offences against
the State, though no doubt they were passed principally, if
not altogether, for political reasons.

The most important of the acts in question were as
follows: —

In 1570, Pius V. issued a bull releasing Elizabeth's
subjects from their allegiance.

By way of reply to this there was passed in the same
year the act 13 Eliz. c. 2, which made it treason to " use or
" put in ure " any bull of absolution or reconciliation, or to
absolve or reconcile any person by virtue of any such bull.
It was also made a prcsmunire to bring any agntis d^i " or
"any crosses, pictures, beads, or any such like vain and
" superstitious things from the Bishop or See of Rome, or
" from any person authorised or claiming authority by or from
" the said Bishop of Rome, to consecrate or hallow the same."

In 1580, the contest between Catholic and Protestant was
at its height. The massacre of St. Bartholomew had hap-
pened just eight years before. The Spanish Armada sailed
eight years afterwards. The parliamentary association for
the protection of Elizabeth against assassination was formed
in 1584, and Mary Stuart was executed in 1587.

Under these circumstances the following Acts of Parliament

^ " And first as to the said offence of not coming to church, so far as it
*' practically concerns those of the popish religion whp, in respecl thereof, are
" commonly called popish recusants.—! Hawkins, P. C, 886.


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were passed : — By 23 Eliz. c. 1, s. 2, it was made high treason Ch. xxv.
" to pretend to have power, or by any ways and means put
" in practice, to absolve, persuade, or withdraw any of the
"queen's subjects from their natural obedience to her
"Majesty, or to withdraw them for that intent from the
" religion now by her Highness's authority established within
" her Highnesses dominions to the Romish religion, or to
"move them to promise any obedience to any pretended
" authority of the See of Rome," or do any overt act for that
purpose. By s. 4 of the same act the saying or singing of
mass was made an offence punishable by two hundred marks
iine, and imprisonment for a year and till payment. To
hear mass willingly was made an offence punishable by one
hundred marks fine and a year's imprisonment.

In 1585 was passed 27 Eliz. c. 7, "An Act against Jesuits,
" seminary priests, and other such like disobedient persons. "
It provided that all Jesuits, seminary priests, and other priests,
ordained out of England or ordained in England since the
beginning of the reign under the authority of the Pope,
should within forty days ieave the realm ; that every such
priest coming into the realm, or remaining in it after the
forty days, should bo guilty of high treason; and that it
should be felony without benefit of clergy "wittingly and
"willingly" to "receive, relieve, comfort, aid, or maintain any
" such Jesuit, seminary priest, or other priest, being at liberty
" and out of hold." Every subject being a student at a sem-
inary was to return within six months after a proclamation
made for that purpose under pain of high treason.

By the same act it was made a prcsinunire to send money
to any Jesuit, or seminary or other priest abroad, and a
misdemeanour to send any child or other person under the
government of the offender abroad without special license.

In 1593, the effects of the defeat of the Spanish Armada
had made themselves felt in various directions. The large
body of persons who up to that time had been moderate
Roman Catholics, or at least had favoured the Roman Catholic
side, became members of the Cburch of England, and formed
the High Church section of it. The Church of England was
thus strongly reinforced, both as against the extreme Catholics


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Ch. XXV. and as against the Puritans, and the effect of this was shown
in the legislation of 1593. In that year were passed two
most severe acts — 35 Eliz. c. 1, "The Act to retain the
" Queen's Majesty's subjects in their due obedience/' and 35
Eliz. c. 2, " An Act for restraining popish recusants to some
" certain places of abode." Of the first act I have already
spoken. The second provided that all popish recusants
should within a certain time " repair to their place of dwelling
"where they usually heretofore made their common abode,
" and shall not at any time after pass or remove above five
" miles firom thence." A recusant having no place of abode
was to " repair to the place where such person was bom, or
"where the father or mother of such person shall then be
"dwelling, and not remove or pass above five miles firom
" thence." The penalty was forfeiture of goods and chattels,
and of the profits of land for life. They were also to
notify their names to the minister or constable of the parish.
If an offender had nothing to forfeit, he was to abjure the

The result of this legislation wcCs that at the end of the
reign of Elizabeth every Roman Catholic priest in England,
except the few who might have been ordained in the reign
of Queen Mary, was by the very fact of his presence in
England guilty of high treason ; that to celebrate the mass
was an offence in itself punishable with fine and imprison-
ment, and that popish recusants were not only liable to
ruinous penalties, but were forbidden to travel above five
miles from their registered places of abode.

In 1605 the Gunpowder Plot was discovered, and two statutes
were passed in consequence, namely 3 Jas. I, c. 4, andS Jas.l,
c. 6. They greatly increased the severity of the law upon
this subject. By c. 4 ^ the king was enabled to refuse £20 a
month penalty, and to take instead of it two-thirds of the
recusant's whole estate, ^ his mansion house excepted. More-
over an * oath abjuring the Pope's authority to depose the
king was drawn up, and any * two justices were empowered to

1 S. 11. « S. 12.

> S. 15. B^ 7 Jas. 1, c. 6, this oath was to he administered to every person
over eighteen in the whole country. * S. 13.


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administer it to any person, not being a nobleman, who had Ch. XXV.
not received the sacrament twice in the year before, and to
all travellers who would not upon oath say that they had
done so. ^ Six privy councillors might tender the oatii to a
nobleman. ^ Every one who refused the oath was to be com-
mitted to prison till the next quarter sessions or assizes, when
the oath was to be tendered a second time, and if it was
still refused the person refusing was guilty of a protniunire.
^ Lastly, the provisions of the act of 23 Eliz. c. 1, which made
it treason to reconcile any person to Rome, or to be willingly
reconciled, were reenacted in a somewhat severer form.

The statute 3 Jas. 1, c. 5, contained further provisions. It
* offered rewards for the discovery of any person entertaining
or relieving a Jesuit or priest. It * prohibited recusants from
coming to Court, and ^ required all popish recusants (^ except
mechanics and persons having no other place of abode) to
leave London and go to at least ten miles from it.

Other provisions ® disabled recusant convicts from practis-
ing as barristers, attorneys, solicitors, advocates, or proctors :
from practising physic and from being apothecaries, from
being judges in any court, and from holding any military
office. Popish recusants convict, and every one married to a
wife being a popish recusant convict, were forbidden to
" exercise any public office or charge in the commonwealth
" by himself or by his deputy," unless the husband and all
his children above nine went to church once a month. ^ All
popish recusants were excommunicated ipso facto, ^^ but not
so as to be prevented from suing. There were also pro-
visions imposing a penalty of £100 on all persons ^^ married
or causing any dead body to be ^* buried otherwise than
according to the rites of the Established Church, or not
having their children so ^baptized within a month after

^* Popish books were prohibited, and ^* justices were autho-
rised to search for them as well as for *' relics of popery,"

1 S. 41. « S. 14. » Ss. 22 and 28. * S. 1. » S. 2. « S. 8. ' S. 6.

^ ft. 8. I suppose " recusant " in this section meant " popii^ recusant,"
which is the expression used in other parts of the act, but this is not the
natural meaning of the word.

» S. 11. i« S. 12. " S. 13. w S. 16. " S. 14. i« S. 25. « S. 26.


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Ch. XXV. and if any " altar, pix, beads, pictures, or such like popish
" rehcs or books " were found, the justice, if he *' thought them
" unmeet for such recusant," might cause them to be presently
defaced and burnt.

^Finally all arms, gunpowder, and munition, except
only such weapons as four justices might consider necessary
for the defence of the person or house of the recusant, were
to be taken from him, and be kept and maintained at the
recusant's cost in any place which the justices might appoint.

It is well known that the execution of these laws under
James I. and Charles I. was very uncertain. It was con-
stantly suspended by both of these sovereigns, but instances
occurred even in the reign of Charles II. in which the most
severe of them, those by which the mere fact of being a
priest in England amounted to high treason, were executed
in their full rigour. They not only remained in force all
through the seventeenth century, but they were increased in
severity on two occasions.

In 1678, in consequence of the excitement caused by
Oates's story about the Popish Plot, was passed * 30 Chas. 2,
St. 2, c. 1, by which Roman CathoUcs were excluded fix>m
Parliament by a test oath denying transubstantiation, and
describing *' the invocation or adoration of the Virgin Mary,
" or any other saint, and the sacrifice of the mass, as they
" are now used in the Church of Rome, as superstitious and
" idolatrous.'*

All these acts were passed under the influence of pas-
sionate excitement and great fear caused by real danger.
There could be no mistake about the dangers to which
Elizabeth was exposed by the Roman Catholics at home and

Online LibraryJames Fitzjames StephenA history of the criminal law of England → online text (page 47 of 48)