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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 moderatur1: 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. And 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.

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 "godly study, pain, and travail of his majesty: for which his [ 48 ] "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

t2 Hen. IV. c. 15.

supremacy of the bishops of Rome, and establishing all other their corruptions of the christian religion.

I SHALL not perplex this detail with the various repeals and revivals of these sanguinary laws in the two succeeding reigns; but shall proceed directly 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 heresy are repealed, which leaves the jurisdiction of heresy 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, 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 is for the first time set to what shall be accounted heresy; 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 heresy 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 [49] liable to be burnt, for what perhaps he did not understand to be heresy till the ecclesiastical judge so interpreted the words of the canonical scriptures.

FOR the writ de haeretico comburendo remained still in force; and we have instances of it's being put in execution upon two Anabaptists in the seventeenth of Elizabeth, and two Arians in the ninth of James the first. 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 5 Rep. xxiii. 12 Rep. 56. 92.

1 Hal. P. C. 405.

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,

In what I have now said, I would not be understood to derogate from the just rights of the national church, or to favour a loose latitude of propagating any crude undigested sentiments, in religious matters. Of propagating I say; for the bare entertaining them, without an endeavour to diffuse them, seems hardly cognizable by any human authority. I only mean to illustrate the excellence of our present establishment, by looking back to former times. Every thing is now as it should be, with respect to the spiritual cognizance, and spiritual punishment, of heresy: 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 [50] and incapacities, which were just now mentioned to be inflicted on apostacy by the same statute. (3) And thus much for the crime of heresy.

(3) This statute, so far as regards the denying any one of the persons of the Holy Trinity to be God, is repealed by the 53 G.3. c. 60. It should seem now, therefore, that the temporal courts have no jurisdiction directly in cases of heresy, but they may still have to determine collaterally what falls within that description; as in a quare impedit, if the bishop pleads that he refused the clerk for heresy, it is said that he must set forth the particular point; for the court having conusance of the original cause, must, by consequence, have a power as to all collateral and incidental matters which

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