Critical and Historical Essays, vol 2 | Page 8

hostility
to her government had been shown by the Catholic population, an act
passed prohibiting the celebration of the rites of the Romish Church on
pain of forfeiture for the first offence, of a year's imprisonment for the
second, and of perpetual imprisonment for the third.
A law was next made in 1562, enacting, that all who had ever
graduated at the Universities or received holy orders, all lawyers, and
all magistrates, should take the oath of supremacy when tendered to
them, on pain of forfeiture and imprisonment during the royal pleasure.
After the lapse of three mouths, the oath might again be tendered to
them; and if it were again refused, the recusant was guilty of high
treason. A prospective law, however severe, framed to exclude
Catholics from the liberal professions, would have been mercy itself
compared with this odious act. It is a retrospective statute; it is a
retrospective penal statute; it is a retrospective penal statute against a
large class. We will not positively affirm that a law of this description

must always, and under all circumstances, be unjustifiable. But the
presumption against it is most violent; nor do we remember any crisis
either in our own history, or in the history of any other country, which
would have rendered such a provision necessary. In the present case,
what circumstances called for extraordinary rigour? There might be
disaffection among the Catholics. The prohibition of their worship
would naturally produce it. But it is from their situation, not from their
conduct, from the wrongs which they had suffered, not from those
which they had committed, that the existence of discontent among them
must be inferred. There were libels, no doubt, and prophecies, and
rumours and suspicions, strange grounds for a law inflicting capital
penalties, ex post facto, on a large body of men.
Eight years later, the bull of Pius deposing Elizabeth produced a third
law. This law, to which alone, as we conceive, the defence now under
our consideration can apply, provides that, if any Catholic shall convert
a Protestant to the Romish Church, they shall both suffer death as for
high treason.
We believe that we might safely content ourselves with stating the fact,
and leaving it to the judgment of every plain Englishman. Recent
controversies have, however, given so much importance to this subject,
that we will offer a few remarks on it.
In the first place, the arguments which are urged in favour of Elizabeth
apply with much greater force to the case of her sister Mary. The
Catholics did not, at the time of Elizabeth's accession, rise in arms to
seat a Pretender on her throne. But before Mary had given, or could
give, provocation, the most distinguished Protestants attempted to set
aside her rights in favour of the Lady Jane. That attempt, and the
subsequent insurrection of Wyatt, furnished at least as good a plea for
the burning of Protestants, as the conspiracies against Elizabeth furnish
for the hanging and embowelling of Papists.
The fact is that both pleas are worthless alike. If such arguments are to
pass current, it will be easy to prove that there was never such a thing
as religious persecution since the creation. For there never was a
religious persecution in which some odious crime was not, justly or
unjustly, said to be obviously deducible from the doctrines of the
persecuted party. We might say, that the Caesars did not persecute the
Christians; that they only punished men who were charged, rightly or

wrongly, with burning Rome, and with committing the foulest
abominations in secret assemblies; and that the refusal to throw
frankincense on the altar of Jupiter was not the crime, but only
evidence of the crime. We might say, that the massacre of St.
Bartholomew was intended to extirpate, not a religious sect, but a
political party. For, beyond all doubt, the proceedings of the Huguenots,
from the conspiracy of Amboise to the battle of Moncontour, had given
much more trouble to the French monarchy than the Catholics have
ever given to the English monarchy since the Reformation; and that too
with much less excuse.
The true distinction is perfectly obvious. To punish a man because he
has committed a crime, or because he is believed, though unjustly, to
have committed a crime, is not persecution. To punish a man, because
we infer from the nature of some doctrine which he holds, or from the
conduct of other persons who hold the same doctrines with him, that he
will commit a crime is persecution, and is, in every case, foolish and
wicked.
When Elizabeth put Ballard and Babington to death, she was not
persecuting. Nor should we have accused her government of
persecution for passing any law, however severe, against overt acts of
sedition. But to argue