law, an offence against Christianity, consisting in a denial of some of its essential doctrines, publicly and obstinately avowed; being defined, "sententia rerum divinarum humano senju exscogitata, palam docta et pertinaciiter defensa." And here it must 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 doctrines shall therefore be adjudged heresy, was left by our old constitution to 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 deviations from the doctrines of the holy church: "hereticus est qui dubitat de fide catholicæ, et qui negligit servare ea, quæ 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; tho' afterwards they proceeded boldly to imprisonment by the ordinary, and confiscation of goods in pious uses. 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 Romanish 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 sententie circa eum moderetur; well knowing that at the same time they were delivering the unhappy victim to certain death. Hence the capital punishments inflicted on the ancient Donatists and Manichæans by the emperors Theodosius and Justinian; hence also the constitution of the emperor Frederic mentioned by Lyndewode, adjudging all persons with- Hereby, out distinction to be burnt with fire who were convicted of hereby 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 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.

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. And therefore we find among our ancient precedents a writ de heretico comburendo, which is thought by some to be as ancient as the common law itself. However, it appears from thence, that the conviction of hereby 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 heretico comburendo being not a writ of course, but issuing only by the special direction of the king in council.

But in the reign of Henry IV, 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 their own power, obtained an act of parliament, which sharpened the edge of persecution to its 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 hereby is, was not then precisely defined, yet we are told in some points what it is not: the statute 25 Hen. VIII. c. 14, declaring, that offences against the fee of Rome are not hereby; 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 hereby be first previously found in the king's courts of common law. And yet the spirit of persecution was not yet 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 godly study, pain, and travail of his majesty; for which his most humble and obedient subjects, the lords spiritual and 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 supremacy of the bishops of Rome, and establishing all other their corruptions of the Christian religion.

Without perplexing this detail with the various repeals and revivals of these fanguary laws in the two succeeding reigns, let us proceed to the reign of queen Elizabeth; when the reformation was finally established with temper and decency, unsullied with party-rancour, or personal caprice and resentment. By statute 1 Eliz. c. 1, all former statutes relating to hereby are repealed, which leaves the jurisdiction of hereby as it stood at common law; viz. as to the infliction of common censures, in the ecclesiastical courts; and in case of burning the heretic, in the provincial synod only. Sir Matthew Hale is indeed of a different opinion, and holds that such power resided in the diocesan also; tho' he agrees, that in either case the writ de heretico comburendo was not demandable of common right, but grantable or otherwise merely at the king's discretion. But the principal point now gained was, that by this statute a boundary is for the first time set to what shall be accounted hereby; nothing for the future being to be so determined, but only such tenets, which have been heretofore so declared, 1. By the words of the canonical scriptures; 2. By the first four general councils, or such others as have only used the words of the holy Scriptures; or, 3. Which shall hereafter be so declared by the parliament, with the assent of the clergy in convocation. Thus was hereby reduced to a greater certainty than before; though it might not have been the worse to have defined it in terms still more precise and particular: as a man continued still liable to be burnt, for what perhaps he did not understand to be hereby, till the ecclesiastical judge so interpreted the words of the canonical scriptures.

For the writ de heretico comburendo remained still in force; and we have instances of its being put in execution upon two Anabaptists in the seventeenth of Elizabeth, and two Arians in the ninth of James I. But it was totally abolished, and hereby again subjected only to ecclesiastical correction, pro salute animae, by virtue of the statute 29 Car. II. c. 9: for, in one and the same reign, our lands were delivered from the slavery of military tenures; our bodies from arbitrary imprisonment by the habeas corpus act; and our minds from the tyranny of superstitious bigotry, by demolishing this last badge of persecution in the English law.

Every thing is now as it should be, with respect to the spiritual cognizance, and spiritual punishment of HERETIC hereof; unless perhaps that the crime ought to be more strictly defined, and no prosecution permitted, even in the ecclesiastical courts, till the tenets in question are by proper authority previously declared to be heretical. Under these restrictions, it seems necessary for the support of the national religion, that the officers of the church should have power to censure heretics; yet not to harass them with temporal penalties, much less to exterminate or destroy them. The legislature hath indeed thought it proper, that the civil magistrate should again interpose, with regard to one species of heresy, very prevalent in modern times; for by statute 9 & 10 W. III. c. 32, if any person educated in the Christian religion, or professing the same, shall by writing, printing, teaching, or advised speaking, deny any one of the persons in the holy Trinity to be God, or maintain that there are more gods than one, he shall undergo the same penalties and incapacities which were just now mentioned to be inflicted on apostasy by the same statute.