First, then, of such crimes and misdemeanors as more immediately offend Almighty God, by openly transgressing the 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; (d) to which the emperors Theodosius and Valentinian added capital punishment, in case the apostate endeavoured to pervert others to the same iniquity: (e) 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 (f) that in his time apostates were to be burnt to death. Doubtless the preservation of Christianity, as a national religion, is, abstracted from its own intrinsic 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 [*44 ] veracity, must be weakened by apostasy, and overthrown by total infidelity. (g) Wherefore all affronts to Christianity, or endeavours to depreciate. its efficacy, in those who have once professed it, are highly deserving of censure. But yet the loss of life is a heavier 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 obsolete; and the offence of apostasy was for a long time the object only of the ecclesiastical courts, which corrected the offender pro salute anime. But about the close of the last century, the civil liberties to which we were then restored being used as a cloak 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 miscreants () to the privileges of society, who maintained such principles as destroyed all moral obligation. To this end it was enacted by statute 9 and 10 Wm. III, c. 32, that if any person educated in, or having made profession of, the Christian 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.

II. A second offence is that of heresy, which consists not in a total denial of Christianity, but of some of its essential *doctrines, publicly and obstinately avowed; being defined by Sir Matthew Hale, "sententia rerum divinarum [*45] humano sensu excogitata, palam docta et pertinaciter defensa."(i) And here it must also be acknowledged that particular modes of belief or unbelief, not tend

(d) Cod. 1, 7, 1.

(e) Ibid. 6.

(f) l. 3. c. 9.

(g) Utiles esse opiniones has. quis negat, cum intelligat, quam multa firmentur jurejurando; quantæ salu. tis sint foederum religiones; quam multos divini supplicii metus a scelere revocavit; quamque sancta sit societas civium inter ipsos, Diis immortalibus interpositis tum judicibus, tum testibus? Cic. de L. L. ii. 7. (h) Mescroyantz in our ancient law books is the name of unbelievers. (i) 1 Hal. P. C. 354.

ing 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, (k) extends to the smallest deviation from the doctrines of holy church: "hæreticus est qur dubitat de fide catholica, 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 enchanced 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 bigoted 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 [*46 ] the unhappy victim to certain death. Hence the capital punishments inflicted on the ancient Donatists and Manichæans by the emperors Theodosius and Justinian: (m) hence also the constitution of the emperor Frederic mentioned by Lyndewode, (n) 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, (0) 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 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 dæmon 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 (9) a writ de hæretico comburendo, which is thought by some to be as ancient 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 hæretico comburendo being not a writ *of course, but issuing only by the special direction of the king in [*17] council. (r) 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) (s) took root in the kingdom; the clergy

(1) Decretal. l. 5, t. 40, c. 27. (p) Baldus in Cod. 1. 5, 4.

(m) Cod. l. 1, tit. 5. (n) c. de hæreticis. (7) F. N. B. 269. (r) 1 Hal. P. C. 395.

(k) Cap. de hæreticis. (o) Cod. 1, 5, 4. (8) 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. U. 1315. Mod. Uu. Hist. xxvi, 13. Spelm. Gloss. 371.

taking advantage from the king's dubious title to demand an increase of their own power, obtained an act of parliament, (f) 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 enets: 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 [*48] 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.

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 senate only. (u) 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 hæretico comburendo was not demandable of common right, but grantable or otherwise merely at the king's discretion. (v) 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 [*49] 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 worst 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 heresy till the ecclesiastical judge so interpreted the words of the canonical scriptures.

For the writ de hæretico 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 the First. But it was totally (t) 2 Hen. IV, c. 15 (u) 5 Rep. 23. 12 Rep. 56. 92.

(v) 1 Hal. P. C. 405.

abolished, and heresy again subjected only to ecclesiastical correction, pro salute anima, 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.

In what I have now said, I would not be understood to derogate from the just rights of the national church, or to favor 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 thein, 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 [*50 ] 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 and 10 Wm 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 apostacy by the same statute. (1) And thus much for the crime of heresy.

III. Another species of offences against religion are those which affect the established church. And these are either positive or negative: positive, by reviling its ordinances; or negative, by non-conformity to its worship. Of both of

these in their order.

1. And, first, of the offence of reviling the ordinances of the church. (2) This is a crime of a much grosser nature than the other of mere nonconformity since it carries with it the utmost indecency, arrogance, and ingratitude; indecency, by setting up private judgment in virulent and factious opposition to public authority; arrogance, by treating with contempt and rudeness what has at least a better chance to be right than the singular notions of any particular man: and ingratitude, by denying that indulgence and undisturbed liberty of conscience to the members of the national church, which the retainers to every petty conventicle enjoy. However, it is provided by statutes 1 Edw. VI, c. 1, and i Eliz. c. 1, that whoever reviles the sacrament of the Lord's supper shall be punished by fine and imprisonment; and by the statute 1 Eliz. c. 2, if any minister shall speak any thing in derogation of the book of common prayer, he shall, if not beneficed, be imprisoned one year for the first offence, and for life for the second; and if he be beneficed, he shall for the first offence be imprisoned six months, and forfeit one year's value of his benefice: for the second offence he shall be deprived, and suffer one year's imprisonment: and, for the third, he shall in like manner be deprived, and suffer imprisonment for life. *And if any person [*51] whatsoever shall, in plays, songs, or other open words, speak any thing in derogation, depraving, or despising of the said book, or shall forcibly prevent the reading of it, or cause any other service to be used in its stead, he shall forfeit for the first offence an hundred marks; for the second, four hundred; and for the third, shall forfeit all his goods and chattels, and suffer imprisonment

(1) [This enactment, so far as it affected persons denying the holy trinity, was repealed by the 53 Geo. III, c. 160, § 2. See R. v. Waddington, 1 B. and C. 26; R. v. Carlile, 3 E. and Ald. 161.] (2) See the cases cited in the previous note.

for life. (3) These penalties were framed in the infancy of our present establishment, when the disciples of Rome and Geneva united in inveighing with the utmost bitterness against the English liturgy; and the terror of these laws (for they seldom, if ever, were fully executed) proved a principal means, under Providence, of preserving the purity as well as decency of our national worship. Nor can their continuance to this time (of the milder penalties at least) be thought too severe and intolerant so far as they are levelled at the offence, not of thinking differently from the national church, but of railing at that church and obstructing its ordinances, for not submitting its public judgment to the private opinion of others. For, though it is clear that no restraint should be laid upon rational and dispassionate discussions of the rectitude and propriety of the established mode of worship; yet contumely and contempt are what no establishment can tolerate. (w) A rigid attachment to trifles, and an intemperate zeal for reforming them, are equally ridiculous and absurd; but the latter is at present the less excusable, because from political reasons, sufficiently hinted at in a former volume, (x) it would now be extremely unadvisable to make any alterations in the service of the church; unless by its own consent, or unless it can be shown that some manifest impiety or shocking absurdity will follow from continuing the present

forms.

2. Non-conformity to the worship of the church is the other, or negative branch of this offence. And for this there is much more to be pleaded than for the former; being a matter of private conscience, to the scruples of which our present laws have shown a very just and Christian indul[*52 ] gence. For undoubtedly all persecution and oppression of weak consciences, on the score of religious persuasions, are highly unjustifiable upon every principle of natural reason, civil liberty, or sound religion. But care must be taken not to carry this indulgence into such extremes, as may endanger the national church: there is always a difference to be made between toleration and establishment.

Non-conformists are of two sorts: first, such as absent themselves from divine worship in the established church, through total irreligion, and attend the service of no other persuasion. These, by the statutes of 1 Eliz. c. 2, 23 Eliz. c. 1, and 3 Jac. 1, c. 4, forfeit one shilling to the poor every Lord's day they so absent themselves, and 207. to the king if they continue such default for a month together. And if they keep any inmate, thus irreligiously disposed, in their houses, they forfeit 107. per month.

The second species of non-conformists are those who offend through a mistaken or perverse zeal. Such were esteemed by our laws, enacted since the time of the reformation, to be papists and protestant dissenters; both of which were supposed to be equally schismatics in not communicating with the national church; with this difference, that the papists divided from it upon material, though erroneous reasons; but many of the dissenters upon matters of indifference, or, in other words, upon no reason at all. Yet certainly our ancestors were mistaken in their plans of compulsion and intolerance. The sin of schism, as such, is by no means the object of temporal coercion and punishment. If through weakness of intellect, through misdirected piety, through perverseness and acerbity of temper, or (which is often the case), through a prospect of secular advantage in herding with a party, men quarrel with the ecclesiastical establishment, the civil magistrate has nothing to do with it, unless their tencts and practice are such as to threaten ruin or disturbance to the state. He is bound, indeed, to protect the established church; and, if this can be better [*53] effected, by admitting none but its genuine members to offices of trust

(w) By an ordinance 23 Aug. 1645, which continued till the restoration, to preach, write, or print any thing in derogation or depraving of the directory, for the then established presbyterian worship, subjected the offender upon indictment to a discretionary fine, not exceeding 501. (Scobell 98.) (2) Book I, p. 98.

(3) [This statute of 1 Eliz. c. 2, was repealed as far as relates to protestant dissenters, by the 31 Geo. III, c. 32, s. 3.]