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Heresy in United Kingdom

Note: see also heresy in the European legal Encyclopedia and click here about heresy in the world.

Heresy according to the Law of England: History

The highest point reached by the ecclesiastical power in England was in the Act De Haeretico comburendo (2 Henry IV. c. 15). Some have supposed that a writ of that name is as old as the common law, but its execution might be arrested by a pardon from the crown. The Act of Henry IV. enabled the diocesan alone, without the co-operation of a synod, to pronounce sentence of heresy, and required the sheriff to execute it by burning the offender, without waiting for the consent of the crown. (Stephen’s Commentaries, bk. iv. ch. 7.)

A large number of penal statutes were enacted in the following reigns, and the statute 1 Eliz. c. 1 is regarded by lawyers as limiting for the first time the description of heresy to tenets declared heretical either by the canonical Scripture or by the first four general councils, or such as should thereafter be so declared by parliament with the assent of Convocation. The writ was abolished by 29 Car. II. c. 9, which reserved to the ecclesiastical courts their jurisdiction over heresy and similar offences, and their power of awarding punishments not extending to death. Heresy became henceforward a purely ecclesiastical offence, although disabling laws of various kinds continued to be enforced against Jews, Catholics and other dissenters.

The temporal courts have no knowledge of any offence known as heresy, although incidentally (e.g. in questions of copyright) they have refused protection to persons promulgating irreligious or blasphemous opinions. As an ecclesiastical offence it would at this moment be almost impossible to say what opinion, in the case of a layman at least, would be deemed heretical. Apparently, if a proper case could be made out, an ecclesiastical court might still sentence a layman to excommunication for heresy, but by no other means could his opinions be brought under censure. The last case on the subject (Jenkins v. Cook, L.R. 1 P.D. 80) leaves the matter in the same uncertainty. In that case a clergyman refused the communion to a parishioner who denied the personality of the devil.

The judicial committee held that the rights of the parishioners are expressly defined in the statute of I Edw. VI. c. i, and, without admitting that the canons of the church, which are not binding on the laity, could specify a lawful cause for rejection, held that no lawful cause within the meaning of either the canons or the rubric had been shown. It was maintained at the bar that the denial of the most fundamental doctrines of Christianity would not be a lawful cause for such rejection, but the judgment only queries whether a denial of the personality of the devil or eternal punishment is consistent with membership of the church. The right of every layman to the offices of the church is established by statute without reference to opinions, and it is not possible to say what opinions, if any, would operate to disqualify him.

The case of clergymen is entirely different. The statute 13 Eliz. c. 12, § 2, enacts that “if any person ecclesiastical, or which shall have an ecclesiastical living, shall advisedly maintain or affirm any doctrine directly contrary or repugnant to any of the said articles, and by conventicle before the bishop of the diocese, or the ordinary, or before the queen’s highness’s commissioners in matters ecclesiastical, shall persist therein or not revoke his error, or after such revocation eftsoons affirm such untrue doctrine,” he shall be deprived of his ecclesiastical promotions. The act it will be observed applies only to clergymen, and the punishment is strictly limited to deprivation of benefice. The judicial committee of the privy council, as the last court of appeal, has on several occasions pronounced judgments by which the scope of the act has been confined to its narrowest legal effect.

The court will construe the Articles of Religion and formularies according to the legal rules for the interpretation of statutes and written instruments. No rule of doctrine is to be ascribed to the church which is not distinctly and expressly stated or plainly involved in the written law of the Church, and where there is no rule, a clergyman may express his opinion without fear of penal consequences. In the Essays and Reviews cases (Williams v. the Bishop of Salisbury, and Wilson v. Fendall, 2 Moo. P.C.C., N.S. 375) it was held to be not penal for a clergyman to speak of merit by transfer as a “fiction,” or to express a hope of the ultimate pardon of the wicked, or to affirm that any part of the Old or New Testament, however unconnected with religious faith or moral duty, was not written under the inspiration of the Holy Spirit. In the case of Noble v. Voysey (L.R. 3 P.C. 357) in 1871 the committee held that it was not bound to affix a meaning to articles of really dubious import, as it would have been in cases affecting property. At the same time any manifest contradiction of the Articles, or any obvious evasion of them, would subject the offender to the penalties of deprivation.

In some of the cases the question has been raised how far the doctrine of the church could be ascertained by reference to the opinions generally expressed by divines belonging to its communion. Such opinions, it would seem, might be taken into account as showing the extent of liberty which had been in practice, claimed and exercised on the interpretation of the articles, but would certainly not be allowed to increase their stringency. It is not the business of the court to pronounce upon the absolute truth or falsehood of any given opinion, but simply to say whether it is formally consistent with the legal doctrines of the Church of England. Whether Convocation has any jurisdiction in cases of heresy is a question which has occasioned some difference of opinion among lawyers. Hale, as quoted by Phillimore (Ecc. Law), says that before the time of Richard II, that is, before any acts of Parliament were made about heretics, it is without question that in a convocation of the clergy or provincial synod “they might and frequently did here in England proceed to the sentencing of heretics.” But later writers, while adhering to the statement that Convocation might declare opinions to be heretical, doubted whether it could proceed to punish the offender, even when he was a clerk in orders.

Phillimore states that there is no longer any doubt, even apart from the effect of the Church Discipline Act 1840, that Convocation has no power to condemn clergymen for heresy. The supposed right of Convocation to stamp heretical opinions with its disapproval was exercised on a somewhat memorable occasion. In 1864 the Convocation of the province of Canterbury, having taken the opinion of two of the most eminent lawyers of the day (Sir Hugh Cairns and Sir John Rolt), passed judgment upon the volume entitled Essays and Reviews. The judgment purported to “synodically condemn the said volume as containing teaching contrary to the doctrine received by the United Church of England and Ireland, in common with the whole Catholic Church of Christ.”

These proceedings were challenged in the House of Lords by Lord Houghton, and the lord chancellor (Westbury), speaking on behalf of the government, stated that if there was any “synodical judgment” it would be a violation of the law, subjecting those concerned in it to the penalties of a praemunire, but that the sentence in question, was “simply nothing, literally no sentence at all.” It is thus at least doubtful whether Convocation has a right even to express an opinion unless specially authorized to do so by the crown, and it is certain that it cannot do anything more. Heresy or no heresy, in the last resort, like all other ecclesiastical questions, is decided by the judicial committee of the council.

The English lawyers, following the Roman law, distinguish between heresy and apostasy. The latter offence is dealt with by an act which still stands on the statute book, although it has long been 363 virtually obsolete—the 9 & 10 Will. III. c. 35. If any person who has been educated in or has professed the Christian religion shall, by writing, printing, teaching, or advised speaking, assert or maintain that there are more Gods than one, or shall deny any of the persons of the Holy Trinity to be God, or shall deny the Christian religion to be true or the Holy Scriptures of the Old and New Testament to be of divine authority, he shall for the first offence be declared incapable of holding any ecclesiastical, civil, or military office or employment, and for the second incapable of bringing any action, or of being guardian, executor, legatee, or grantee, and shall suffer three years’ imprisonment without bail. Unitarians were saved from these atrocious penalties by a later act (53 Geo. III. c. 160), which permits Christians to deny any of the persons in the Trinity without penal consequences.

Source: Encyclopedia Britannica (1911)

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Further Reading

English Law: Heresy in the Past

The adoption of any wrong religious tenet, not warranted by the established church.

Developments

This is punished by the deprivation of certain civil rights and by fine and imprisonment. 1 East, P. C. 4.

Details

In other countries than England (see more about this legal system) , by heresy is meant the profession, by Christians, of religious opinions contrary to the dogmas approved by the established church of the respective countries. For an account of the origin and progress of the laws against heresy, see Giannoni’s Istoria di Napoli, vol. 3, pp, 250, 251, etc.

Other Aspects

In the United State, happily, we have no established religion; there can, therefore, be no legal heresy. Vide Apostacy; Christianity. [1]

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Notes and References

  1. Partialy, this information about heresy is based on the Bouvier´s Law Dictionary, 1848 edition. There is a list of terms of the Bouvier´s Law Dictionary, including heresy.

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  • Article Name: Heresy
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  • Description: Note: see also heresy in the European legal Encyclopedia and click here about heresy in the world. Heresy according to the [...]

This entry was last updated: July 10, 2020

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