Odger's English Common Law

212 OFFENCES AGAINST RELIGION.
Court, civil or ecclesiastical, can any longer proceed against
a layman for mere nonconformity. By the 4th section of the
Toleration Act, 1 no dissenter shall be prosecuted in any
Ecclesiastical Court for or by reason of his nonconformity to
the Church of England.
" The canon law forms no part of
the law of England, unless it has been brought into use and
acted upon in this country : the burden of proving which
rests on those who affirm the adoption of any portion of it in
England." 2 The Ecclesiastical Courts of the Church of
England no longer possess any criminal jurisdiction over
laymen. "As against laymen, whatever may be the nature
of the charge, undoubtedly the Court has no jurisdiction to
entertain a criminal' suit." 3 "Speaking generally, and
setting aside for the moment all questions as to the clergy,
it cannot, I think, be doubted that a recurrence to the punishment
of the laity for the good of their souls by Ecclesiastical
Courts would not be in harmony with modern ideas, or the
position which ecclesiastical authority now occupies in the
country. Nor do I think that the enforcement of such
powers, where they still exist, if they do exist, is likely to
benefit the community." 4
Even over clergymen of the Established Church the power of the
Ecclesiastical Courts on questions of heresy is very limited. The judgment
of Her Majesty's Privy Council (including the Archbishop of Canterbury)
decided that it is not an ecclesiastical offence, even for the clergy, to
dispute the dates and authorship of the several books of the Old and New
Testaments, to deny that the whole of the Holy Scriptures was written
under the inspiration of the Holy Spirit, to reject parts of Scripture upon
their own opinion that the narrative is inherently incredible, to disregard
precepts in Holy Writ because they think them evidently wrong, so long
as they do not contradict any doctrine laid down in the Articles or Formu-
laries of the Church of England. 5
1
1 Will. & Mary, c. 18. Although by s. 17 it was provided that the benefits of
the Act should not extend to Unitarians, this exception was repealed in 1813 by the
statute 63 Geo. III. c. 160.
2 Per Lord Denman, C. J., in R. v. The Archbishop of Canterbury (1818), 11
Q. B. at p. 649 ; and see Middle-ton v. Croft (1734, 1736), Lee's Cases temp.
Hardwicke, 57, 326 ; Year Book, 34 Hen. VI. fo. 38 (1459) ; Priscot, c. 5 ; Fitzh.
Abr. quare imp. 89 ; Bro. Abr. quare imp. 12.
3 Per Sir H. Jenner Fust in Burder v. (1844), 3 Curteis, at p. 827 ; and
see Woods v. Woods (1840), 2 Curteis, 516.
* Per Lord Penzance in Phillimore v. Miaohon (1876), 1 P. D. at p. 487.
6 Williams v. Bishop of Salisbury, Wilson v. Kendall (1864), 2 Moore P. C
(N. S.) 375 ; Brodrick & Fremantle, 247 ; Gorham v. Bishop of Exeter (1850), ib. 64.
.