CROMWELL'S LEGISLATION.

479

pendents, and 1efforts 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 Protectorate, a form of Church government much less stringent than Presbyterianism. The principal points in its history were as follows:

3

On the point of his departure for Ireland in 1649, 2 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 The Parliament thereupon 3 repealed all the acts of Elizabeth already referred to, but provided that, in order to prevent profane or licentious persons from neglecting the performance of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 subjected 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 termination 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 establishment 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 fairly 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. 133-142. 2 Ib. iv. p. 8. 3 Ib. p. 26. * Ib. p. 69.

480

CH. XXV.

CROMWELL'S " INSTRUMENT OF GOVERNMENT."

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 differing 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, Antinomians, Quakers, and others," but this seems to have come to nothing.

2 The corresponding part of the Humble Petition and Advice goes into considerably greater detail than the Instrument of Government, but is to much the same effect. In substance, it provides that all forms of Christian worship are to be permitted and protected, except Deism or Socinianism, popery, and prelacy. Matters stood thus till the restoration of Charles II. Upon that event, the Commonwealth 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. 2 Ib. p. 153.

DISSENT ON THE RESTORATION.

481

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. 2 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 effect 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 enacted by the statutes of Elizabeth
applied, and to 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
"passing 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).

1 See ss. 4 and 17, and compare 13 Eliz. c. 12, ss. 1 and 3 (Pickering).
2 Ss. 13, 14.

VOL. II.

ΙΙ

482

CH. XXV.

THE TOLERATION ACT.

In 1670 was passed the act to suppress seditious conventicles (22 Chas. 2, c. 1). This act authorised, and in 1 stringent terms required, all peace officers to disperse all conventicles, breaking open doors if necessary (s. 9) for that purpose. Persons attending such conventicles were liable to 5s. penalty for a first, and to 10s. 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 II., I need say nothing; nor does it fall 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 illegal 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 exercise 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

"

1 "Any justice wilfuly and willingly omitting to perform his duty was liable "to a penalty of £100 by s. 11, and every constable to a penalty of £5."

LEGISLATION OF 18TH CENTURY.

483

66

advantage to any papist or popish recusant whatever, or CH. XXV. any person who shall deny in his 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. 59. 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 was 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 unnecessary, therefore, to repeat what has already been said on