an offence against Christianity, consisting in a denial of some of its essential doctrines, publicly and obstinately avowed. It is defined sententia rerum divinarum humano sensu excepitata, palam docet et pertinaciter defendat. And here it must be acknowledged, that particular modes of belief or unbelief, not tending to overturn Christianity itself, or to undermine the foundations of morality, are by no means the object of coercion by the civil magistrate. What doctrines therefore should be adjudged heresy, was left by our old constitution to the determination of the ecclesiastical judge, who had therein a most arbitrary latitude allowed him. 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 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." This was very contrary to the usage of the first general councils, which defined all heretical doctrines with the utmost precision and exactness. But what ought to have alleviated the punishment, namely, the uncertainty of the crime, seems to have enhanced it in those days of blind zeal and pious cruelty. It is true, that for the crime of heresy the sanctimonious hypocrisy of the canonists went at first no farther than enjoining penance, excommunication, and ecclesiastical deprivation; 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 bigoted princes to make the civil power subservient to their purposes, by making heresy not only a temporal, but even a capital offence; the ecclesiastics determining, without appeal, whatever they pleased to consider as heresy, and shifting 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 on behalf of the convicted heretic, ut extra mortis periculum sententia 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 Manicheans by the emperors Theodosius and Justinian; and hence also the constitution of the emperor Frederic mentioned by Lyndewode, adjudging all persons without distinction to be burned 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 should be lawful for good Catholics to seize 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 supreme pontiff, of disposing of the kingdoms of refractory princes to more dutiful sons of the church. The immediate consequence of this constitution was something singular, and may serve to illustrate at once the gratitude of the holy see, and the righteous punishment of the royal bigot; for, upon the authority of this very constitution, the pope afterwards expelled Frederic from his kingdom of Sicily, and gave it to Charles of Anjou.

Christianity being thus deformed by the demon of persecution upon the Continent, we cannot expect that our own island should have been entirely free from the same scourge; and accordingly we find amongst our ancient precedents a writ de heretico comburendo, which is thought by some to be as ancient as the common law itself. From this writ it appears 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 be dealt with according to the royal pleasure. Thus 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 King Henry IV., when the eyes of the Christian world began to be opened, and the seeds of the Protestant religion, though under the opprobrious name of Lollardy, took root in this kingdom, the clergy, taking advantage of the king's dubious title to demand an increase of their power, obtained an act of parliament, which sharpened the edge of persecution to its utmost keenness. 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 Henry V. c. 7, Lollardy was also made a temporal offence, and indictable in the king's courts; which thereby gained not an exclusive, but only a concurrent, jurisdiction with the bishop's consistory.

Afterwards, when the reformation of religion began to advance, the power of the ecclesiastics became somewhat moderated; for though it was not then precisely defined what heresy was, yet people were informed in some points what it was not. The statute 25 Henry VIII. c. 14, declared that offences against the see of Rome were not heresy; and the ordinary was thereby restrained from proceeding in any case upon mere suspicion; that is, unless the party delated were accused by two credible witnesses, or an indictment of heresy had been previously found in the king's courts of common law. And still the spirit of persecution was not yet abated, but only diverted into a lay channel. For in six years afterwards, by statute 31 Henry VIII. c. 14, the law of the six articles was made, which established the six most contested points of popery, namely, transubstantiation, communion in one kind, the celibacy of the clergy, monastic vows, the sacrifice of the mass, and auricular confession; points which 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 burned with fire, and of the five others 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 at the same time establishing all their corruptions of the Christian religion.

Without perplexing this detail with the various repeals and revivals of these sanguinary laws in the two succeeding reigns, we 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 I Eliz. c. 1, all former statutes relating to heresy were repealed, and the jurisdiction of heresy was left 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 also in the diocesan; though he agrees that in either case the writ de haeretico 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 was for the first time set to what should be accounted heresy. For the future nothing was to be determined heretical but only such tenets as had been heretofore so declared, first, by the words of the Holy Scriptures; or, secondly, by the first four general councils, or such others as had only used the words of the Holy Scriptures; or, thirdly, which should thereafter be so declared by the parliament, with the assent of the clergy in convocation. Thus was heresy reduced to a greater certainty than before; though it might not have been amiss to have defined it in terms still more precise and particular, as even yet a man continued liable to be burned for what perhaps he did not understand to be heresy till the ecclesiastical judge had so interpreted the words of the canonical scriptures.

But the writ de haeretico comburendo remained still in force; and we have instances of its being put in execution against two Anabaptists in the seventeenth of Elizabeth, and two Arians in the ninth of James I. But it was totally abolished, and heresy 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 removing this last badge of persecution from the system of English law.