It is not our intention under this head to discuss the character and tendency of heresy as an ecclesiastical question, nor to give an account of the several forms of belief which have from time to time been denounced as heresies. The more conspicuous and important of these will be found under the several titles which they bear in ecclesiastical history. The object of the present article is merely to give a brief notice of the civil effect which has generally been given to that departure from established modes of faith to which the term applies. It never included infidels or persons professing a different religion from the Christian, such as Jews or Mohammedans. These were dealt with by separate laws. True to its etymological origin (ἀπόστασις, choice or selection), heresy was the offence of those who, professing to be Christians, used the right of private judgment, and chose their own form of Christianity, instead of conforming to the declared will of the Church. From the days of Constantine downwards, the imperial power treated any departure from the imperial established religion as a public nuisance which must be suppressed. The fifth title of the first book of the Justinian code contains a series of the laws so passed from time to time against heretics described as people who, at the instigation of conceit or waywardness, set up doctrines for themselves, and endeavour to break free from the control of the Catholic Church. The offence was punished by the secular arm as an interruption of the imperial policy, and a disturbance of the public peace. As the companion of catholic unity, the arrangement was one of perfect theoretical simplicity. The general councils established the doctrines of the Church, and those who preached or taught against them were guilty of a public offence, for which they were punished by death or some minor infliction, according to the severity or leniency of the criminal code of each country. But even during the professed continuance of catholic unity, this simplicity was more theoretical than practical. The early councils were enabled, it is true, to draw a broad line of demarcation between the belief of the church and the doctrines of certain heretical sects, because the condemnation of these sects was sometimes the chief business discussed by the council, and the triumphant majority clearly defined the opinions which they repudiated. But in later times when the voice of general councils was no longer so specifically announced, and the Catholic Church, spread over all Europe, was influenced by national habits and institutions, the opinions which constituted heresy fluctuated according to local conditions. Hence, independently of the conflicts connected with the great question of preserving the Catholic Church from the large innovations of the reformers, minor heresies sprung up according to local conditions and conventionalities, creating that long array of secondary per- secutions with which the annals of Christendom are unfortunately crowded. In the countries which adopted the Reformation, even the name of a catholic unity from which it was a crime to secede, no longer existed. Yet if we except some imperfect glimmerings of the principle of toleration in Britain, Holland, and a part of Germany, it seems never to have been thought of, even by the reforming communities, that the state was no longer to punish as a crime all divergence from the mode of faith established by the preponderating power. In France, where after a long conflict, the edict of Nantes established Protestantism side by side with Catholicism, neither party acknowledged the principle of toleration, and the Huguenots were no less jealous than their opponents in preserving their ranks from the taint of heresy. The arrangement was in fact a treaty between two hostile powers occupying the same soil; and like two armies which agree to suspend warlike operations, each kept its own ranks in discipline, and punished desertion.

In looking on heresy as a sort of offence against the public peace, the continental states generally permitted the ecclesiastical judicatories acting under the canon law to fix its character, and even dictate its punishment. The feeling of the feudal princes on the subject is characteristically expressed in a constitution of the Emperor Frederick I., which decrees that, if the temporal lord, when duly admonished and warned by the Church, shall neglect to purge his territory of heretics, his fief shall be forfeited and pass into the hands of faithful followers of the Church, that they may free it from pollution. In England no effect was in the general case given to either the canon or the civil law in the shape of punishment; and heresy, like other offences, was the creature of statute. By an act of the 5th of Richard II., passed in 1382, commissions were issued for the apprehension and imprisonment of such as were certified by the prelates to be preachers of heresy, with their favourers, maintainers, and abettors. It is singular that Mr Hallam mentions this statute as one of those instances where the commons complain that a law was passed by the crown without their consent (Mid. Ages, pt. iii., chap. 8). The 2d of Henry IV., passed in 1400, is the earliest act which condemns heretics to be burned. It has been remarked, that it is drawn up in Latin, while the other acts of the same session are in French, and that it is a precise echo of a petition by the prelates and clergy; hence it may be inferred, that while it was the practice in general for the crown to pass acts on the petition of parliament, this particular act was granted on the application of the Church. Notwithstanding the jealousy with which the English law protected the subject from penalties not authorized by parliament, it has always been maintained that the writ for burning a heretic, de heretico comburendo, was issued, on application by the proper ecclesiastical authority, by the sole prerogative of the crown; and lawyers have been in use to observe apologetically, that the writ was not issued as of course, but required the special authority of the king in council (Blackstone, b. iv., chap. 4). There is, however, some reason to believe, that the writ is no older than the act of Henry IV., and thus has its origin in statute (see notes on the statute in Tomlyn's edition). Several other cruel acts against heresy were subsequently passed, but the climax both of severity and confusion was reached by the act 31st of Henry VIII., "for abolishing of diversity of opinion," which established the six articles of faith so well known in history, and appointed death by burning as the punishment of transgressing the first, and death in the ordinary penal form, as the punishment for transgressing any of the others. The celebrated first act of Elizabeth, abolishing the authority of the see of Rome in England, did not mitigate the punishment of heresy, but enacted, that no opinion should be punished as heresy, unless it had been "heretofore determined, ordered, and adjudged to be heresy by the authority of the canonical Scriptures," or was so determined by one of the four first general councils, or by parliament, with the consent of convocation. The law by which heretics were liable to be put to death by burning, was not abolished until the year 1676 (29th Car. II., c. 9).

Much interest has lately been created in England by the question, how far the Established Church can exclude clergymen, adjudged by ecclesiastical authority to be maintainers of heretical doctrines, from ecclesiastical rank and emoluments? In Scotland the right of the judicatories of the establishment to depose a minister for heresy or any other purely ecclesiastical offence is not doubted; and the courts of law have only interfered with proceedings of this nature, when it has been maintained that they were not founded on strictly ecclesiastical grounds, but were held for the purpose of accomplishing some ulterior object. In England the supremacy of the crown has enabled the temporal power to consider the ecclesiastical grounds on which any effort to affect the right to the temporalities of the Church has been based; and the discontinuance of the convocation, by withdrawing corporate action from the prevalent majority in the Church, has decidedly favoured this limitation of the powers of ecclesiastical judicatories. In the instance known as the Gorham case, decided in 1850, the Bishop of Exeter refused, on account of what he counted heretical opinions, to institute to the vicarage of Bramford-Speke, the Rev. G. C. Gorham, presented by the crown. The bishop's refusal was confirmed by the Dean of the Arches Court of Canterbury. Mr Gorham appealed to the Queen in council; and the judicial committee of the privy council entering into the whole question, whether the presentee's opinions justified the bishop's refusal to institute, decided as a court of law in favour of Mr Gorham.