precepts of religion either natural or revealed; and mediately by their bad example and consequence, the law of society also: which constitutes that guilt in the action, which human tribunals are to censure.

I. Of this species the first is that of apostasy, or a total renunciation of christianity, by embracing either a false religion, or no religion at all. This offence can only take place in such as have once professed the true religion. The perversion of a christian to judaism, paganism, or other false religion, was punished by the emperors Constantius and Julian with confiscation of goods; to which the emperors Theodosius and Valentinian added capital punishment, in case the apostate endeavoured to pervert others to the same iniquity : a punishment too severe for any temporal laws to inflict upon any spiritual offence; and yet the zeal of our ancestors imported it into this country; for we find by Bracton, that in his time apostates were to be burnt to death. Doubtless the preservation of christianity, as a national religion, is, abstracted from it's own instrinsic truth, of the utmost consequence to the civil state which a single instance will sufficiently demonstrate. The belief of a future state of rewards and punishments, the entertaining just ideas of the moral attributes of the Supreme Being, and a firm persuasion that he superintends and will finally compensate every action in human life, (all which are clearly revealed in the doctrines, and forcibly inculcated by the precepts, of our Saviour Christ,) these are the grand foundation of all judicial oaths; which call God to witness the truth of those facts, which perhaps may be only known to him and the party attesting: all moral evidence, therefore, all confidence in human veracity, must be weak- [ 44 ] ened by apostasy, and overthrown by total infidelity. Wherefore all affronts to christianity, or endeavours to depreciate it's efficacy, in those who have once professed it, are highly deserving of censure. But yet the loss of life is a heavier

d Cod. 1. 7. 1.

* Ibid. 6.

fl. 3. c. 9.

Utiles esse opiniones has, quis neget, cum intelligat, quam multa firmentur jurejurando; quantae salutis sint foede

rum religiones; quam multos divini sup-
plicü metus a scelere revocarit; quamque
sancta sit societas civium inter ipsos, Diis
immortalibus interpositis tum judicibus,
tum testibus? Cic. de LL.ii.7.

penalty than the offence, taken in a civil light, deserves: and,
taken in a spiritual light, our laws have no jurisdiction over
it. This punishment therefore has long ago become obso-
lete; and the offence of apostasy was for a long time the
object only of the ecclesiastical courts, which corrected the
offender pro salute animae.
salute animae. But about the close of the last
century, the civil liberties to which we were then restored
being used as a cloke of maliciousness, and the most horrid
doctrines subversive of all religion being publicly avowed
both in discourse and writings, it was thought necessary again
for the civil power to interpose, by not admitting those mis-
creants to the privileges of society, who maintained such
principles as destroyed all moral obligation. To this end
it was enacted by statute 9 & 10 W. III. c. 32. that if any
person educated in, or having made profession of, the chris-
tian religion, shall, by writing, printing, teaching, or advised
speaking, deny the christian religion to be true, or the holy
scriptures to be of divine authority, he shall upon the first
offence be rendered incapable to hold any office or place of
trust; and, for the second, be rendered incapable of bringing
any action, being guardian, executor, legatee, or purchaser of
lands, and shall suffer three years' imprisonment without bail.
To give room however for repentance, if, within four months
after the first conviction, the delinquent will in open court
publicly renounce his error, he is discharged for that once
from all disabilities. (1)

II. A SECOND offence is that of heresy, which consists not in a total denial of christianity, but of some of it's essential [45] doctrines, publicly and obstinately avowed; being defined by sir Matthew Hale, "sententia rerum divinarum humano sensu "excogitata, palam docta et pertinaciter defensa." And here it must also be acknowledged that particular modes of belief or unbelief, not tending to overturn christianity itself, or to sap the foundations of morality, are by no means the object of coercion by the civil magistrate. What doctrine shall therefore be adjudged heresy, was left by our old constitution to h Mescroyantz in our antient law i 1 Hal. P. C. 384. pooks is the name of unbelievers.

(1) See post, p.50.

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the determination of the ecclesiastical judge; who had herein a most arbitrary latitude allowed him. For the general definition of an heretic given by Lyndewode *, extends to the smallest deviation from the doctrines of holy church: "hae"reticus est qui dubitat de fide catholica, et qui negligit servare ea, quae Romana ecclesia statuit, seu servare decreverat." Or, as the statute 2 Hen. IV. c. 15. expresses it in English, "teachers of erroneous opinions, contrary to the faith and "blessed determinations of the holy church." Very contrary this to the usage of the first general councils, which defined all heretical doctrines with the utmost precision and exactness. And what ought to have alleviated the punishment, the uncertainty of the crime, seems to have enhanced it in those days of blind zeal and pious cruelty. It is true that the sanctimonious hypocrisy of the canonists went at first no farther than enjoining penance, excommunication, and ecclesiastical deprivation, for heresy; though afterwards they proceeded boldly to imprisonment by the ordinary, and confiscation of goods in pios usus. But in the mean time they had prevailed upon the weakness of bigotted princes, to make the civil power subservient to their purposes, by making heresy not only a temporal, but even a capital offence: the Romish ecclesiastics determining, without appeal, whatever they pleased to be heresy, and shifting off to the secular arm the odium and drudgery of executions: with which they themselves were too tender and delicate to intermeddle. Nay, they pretended to intercede and pray, on behalf of the convicted heretic, ut citra mortis periculum sententia circa eum moderatur 1: well knowing at the same time that they were delivering the unhappy victim to certain death. Hence the capital punishments [ 46 ] inflicted on the antient Donatists and Manichæans by the emperors Theodosius and Justinian : hence also the constitution of the emperor Frederic mentioned by Lyndewode", adjudging all persons without distinction to be burnt with fire, who were convicted of heresy by the ecclesiastical judge. The same emperor, in another constitution, ordained that if any temporal lord, when admonished by the church, should neglect to clear his territories of heretics within a year, it

[ 47 ]

should be lawful for good catholics to seise and occupy the lands, and utterly to exterminate the heretical possessors. And upon this foundation was built that arbitrary power, so long claimed and so fatally exerted by the pope, of disposing even of the kingdoms of refractory princes to more dutiful sons of the church. The immediate event of this constitution was something singular, and may serve to illustrate at once the gratitude of the holy see, and the just punishment of the royal bigot for upon the authority of this very constitution, the pope afterwards expelled this very emperor Frederic from his kingdom of Sicily, and gave it to Charles of Anjou P.

CHRISTIANITY being thus deformed by the daemon of persecution upon the continent, we cannot expect that our own island should be entirely free from the same scourge. therefore we find among our ancient precedents a writ de haeretico comburendo, which is thought by some to be as antient as the common law itself. However it appears from thence, that the conviction of heresy by the common law was not in any petty ecclesiastical court, but before the archbishop himself in a provincial synod; and that the delinquent was delivered over to the king to do as he should please with him : so that the crown had a control over the spiritual power, and might pardon the convict by issuing no process against him; the writ de haeretico comburendo being not a writ of course, but issuing only by the special direction of the king in council'. (2)

BUT in the reign of Henry the fourth, when the eyes of the christian world began to open, and the seeds of the protestant religion (though under the opprobrious name of lollardy) took root in this kingdom; the clergy taking advantage from the king's dubious title to demand an increase of

P Baldus in Cod. 1. 5. 4.

9 F. N. B. 269.

г 1 Hal. P. C.395.

$ So called not from lolium, or tares, (an etymology, which was afterwards

devised in order to justify the burning of them, Matth. xiii. 30.) but from one Walter Lolhard, a German reformer, A. D. 1315. Mod. Un. Hist. xxvi. 13. Spelm. Gloss. 371.

(2) Neither could the writ issue for the first offence; the party must once have abjured, and then relapsed into the same or some other heresy. 5 Rep. xxiii. F. N. B. 269.

their own power, obtained an act of parliament', which sharpened the edge of persecution to it's utmost keenness. For, by that statute, the diocesan alone, without the intervention of a synod, might convict of heretical tenets; and unless the convict abjured his opinions, or if after abjuration he relapsed, the sheriff was bound ex officio, if required by the bishop, to commit the unhappy victim to the flames, without waiting for the consent of the crown. By the statute 2 Hen. V. c. 7. lollardy was also made a temporal offence, and indictable in the king's courts; which did not thereby gain an exclusive, but only a concurrent jurisdiction with the bishop's consistory.

AFTERWARDS, when the final reformation of religion began to advance, the power of the ecclesiastics was somewhat moderated for though what heresy is, was not then precisely defined, yet we were told in some points what it is not the statute 25 Hen. VIII. c. 14. declaring that offences against the see of Rome are not heresy; and the ordinary being thereby restrained from proceeding in any case upon mere suspicion; that is, unless the party be accused by two credible witnesses, or an indictment of heresy be first previously found in the king's courts of common law. And yet the spirit of persecution was not then abated, but only diverted into a lay channel. For in six years afterwards, by statute 31 Hen. VIII. c. 14. the bloody law of the six articles was made, which established the six most contested points of popery, transubstantiation, communion in one kind, the celibacy of the clergy, monastic vows, the sacrifice of the mass, and auricular confession; which points were "determined and resolved by the most

66

godly study, pain, and travail of his majesty: for which his [ 48 ] "most humble and obedient subjects, the lords spiritual and

66

temporal, and the commons, in parliament assembled, did "not only render and give unto his highness their most high "and hearty thanks," but did also enact and declare all oppugners of the first to be heretics, and to be burnt with fire; and of the five last to be felons, and to suffer death. The same statute established a new and mixed jurisdiction of clergy and laity for the trial and conviction of heretics; the reigning prince being then equally intent on destroying the

t2 Hen. IV. c.15.