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fhape is derogatory from found morality, is not however taken notice of by our law, unlefs it carries with it fome public inconvenience, as fpreading falfe news; or fome focial injury, as flander and malicious profecution, for which a private recompence is given. And yet drunkenness and malevolent lying are in foro confcientiae as thoroughly criminal when they are not, as when they are, attended with public inconvenience. The only difference is, that both public and private vices are fubject to the vengeance of eternal justice; and public vices are befides liable to the temporal punishments of human tribunals.

On the other hand, there are some misdemefnors, which are punished by the municipal law, that have in themselves nothing criminal, but are made unlawful by the pofitive conftitutions of the ftate for public convenience. Such as poaching, exportation of wool, and the like. These are naturally no offences at all; but their whole criminality confifts in their disobedience to the fupreme power, which has an undoubted right, for the well-being and peace of the community, to make fome things unlawful, which are in themfelves indifferent. Upon the whole therefore, though part of the offences to be enumerated in the following sheets are offences against the revealed law of God, others against the law of nature, and fome are offences against neither; yet in a treatife of municipal law we must confider them all as deriving their particular guilt, here punishable, from the law of man.

HAVING premised this caution, I fhall next proceed to diftribute the feveral offences, which are either directly or by confequence injurious to civil fociety, and therefore punishable by the laws of England, under the following general heads: first, thofe which are more immediately injurious to God and his holy religion; fecondly, such as violate and tranfgrefs the law of nations; thirdly, fuch as more efpecially affect the fovereign executive power of the ftate, or the king and his government; fourthly, fuch as more directly


Book IV. infringe the rights of the public or commonwealth; and, laftly, such as derogate from those rights and duties, which are owing to particular individuals, and in the preservation and vindication of which the community is deeply interested.

FIRST then, of fuch crimes and mifdemefnors, as more. immediately offend Almighty God, by openly tranfgreffing the precepts of religion either natural or revealed; and mediately by their bad example and confequence, the law of fociety, also; which conftitutes that guilt in the action, which human tribunals are to cenfure.

I. Or this species the firft is that of apoftacy, 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 profeffed the true religion. The perversion of a christian to judaism, paganism, or other false religion, was punished by the emperors Conftantius and Julian with confifcation of goods; to which the emperors Theodofius and Valentinian added capital punishment, in cafe the apoftate endeavoured to pervert others to the fame iniquity. A punishment too fevere 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, that in his time apoftates were to be burnt to death. Doubtlefs the prefervation of chriftianity, as a national religion, is, abstracted from it's own intrinfic truth, of the utmost confequence to the civil ftate: which a fingle inftance will fufficiently demonftrate. The belief of a future state of rewards and punishments, the entertaining juft ideas of the moral attributes of the fupreme being, and a firm perfuafion that.he fuperin tends and will finally compenfate every action in human life, (all which are clearly revealed in the doctrines, and forcibly inculcated by the precepts, of our faviour Chrift) these are the grand foundation of all judicial oaths; which call God to witnefs the truth of thofe facts, which perhaps may be only known to him and the party attefting: all moral evidence

d Cod. I. 7. T.

* Ibid. 6.

f1.3. c. 9.


therefore, all confidence in human veracity, must be weaked by apoftacy, and overthrown by total infidelity. Wherefore all affronts to christianity, or endeavours to depreciate it's efficacy, in those who have once profeffed it, are highly deserving of cenfure. But yet the lofs of life is a heavier penalty than the offence, taken in a civil light, deferves: and, taken in a spiritual light, our laws have no jurisdiction over it. This punishment therefore has long ago become obfolete; and the offence of apoftacy was for a long time the object only of the ecclefiaftical courts, which corrected the offender pro falute animae. But about the close of the laft century, the civil liberties to which we were then restored being used as a cloke of maliciousnefs, and the moft horrid doctrinés fubverfive of all religion being publicly avowed both in difcourfe and writings, it was thought neceffary again for the civil power to interpofe, by not admitting those mifcreants to the privileges of fociety, who maintained fuch principles as deftroyed all moral obligation. To this end it was enacted by ftatute 9 & 10 W. III. c. 32. that if any perfon educated in, or having made profeffion of, the chriftian religion, fhall, by writing, printing, teaching, or advifed fpeaking, deny the christian religion to be true, or the holy fcriptures to be of divine authority, he shall upon the first offence be rendered incapable to hold any office or place of truft; and, for the fecond, be rendered incapable of bringing any action, being guardian, executor, legatee, or purchȧfor 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 difcharged for that once from all difabilities.


II. A SECOND offence is that of herefy, which confifts not in a total denial of chriftianity, but of fome of it's effential

Utiles effe opiniones bas, quis negat, cum intelligat,quam multa firmentur jurejurando; quantae falutis fint foederam religiones; quam multos alvini fupplicii metas a fcelere revocarit; quamque fan&ta

fit focietas civium inter ipfos, Diis immortalibus interpofitis tum judicibus tum teftibus? Cic. de LL. ii. 7.

h Mefroyantz in our antient law books is the name of unbelievers.


doctrines, publicly and obftinately avowed; being defined by fir Matthew Hale, "fententia rerum divinarum humano fenfu ex"cogitata, palam docta et pertinaciter defenfa1. And here it must also be acknowleged that particular modes of belief or unbelief, not tending to overturn christianity itself, or to fap the foundations of morality, are by no means the object of coercion by the civil magistrate. What doctrines shall therefore be adjudged herefy, was left by our old constitution to the determination of the ecclefiaftical 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 holy church, "hae"reticus eft qui dubitat de fide catholica, et qui negligit fervare "ea, quae Romana ecclefia ftatuit, feu fervare decreverat." Or, as the ftatute 2 Hen. IV. c. 15. expreffes it in English, "teachers of erroneous opinions, contrary to the faith and "bleffed determinations of the holy church." Very contrary this to the ufage 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, feems to have enhanced it in those days of blind zeal and pious cruelty. It is true that the fanctimonious hypocrify of the canonifts went at firft no farther than enjoining penance, excommunication, and ecclefiaftical deprivation, for herefy; though afterwards they proceeded boldly to imprisonment by the ordinary, and confiscation of goods in pios ufus. But in the mean time they had prevailed upon the weakness of bigotted princes, to make the civil power fubfervient to their purposes, by making herefy not only a temporal, but even a capital offence: the Romish ecclehaftics determining, without appeal, whatever they pleased to be herefy, and thifting off to the fecular 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 fententia circa eum moderatur well knowing at the fame time that they were delivering the un1 Decretal. 1. 5. t. 40. c. 27.

1 Hal. P. C. 384.


cap. de baereticis.


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happy victim to certain death. Hence the capital punishments inflicted on the antient Donatifts and Manichaeans by the em perors Theodofius and Juftinian m: hence alfo the conftitution of the emperor Frederic mentioned by Lyndewode adjudging all perfons without distinction to be burnt with fire, who were convicted of herefy by the ecclefiaftical judge. The fame emperor, in another conftitution, ordained that if any temporal lord, when admonished by the church, fhould neglect to clear his territories of heretics within a year, it should be lawful for good catholics to feize and occupy the lands, and utterly to exterminate the heretical poffeffors. And upon this foundation was built that arbitrary power, fo long claimed and fo fatally exerted by the pope, of difpofing even of the kingdoms of refractory princes to more dutiful fons of the church. The immediate event of this conftitution was fomething fingular, and may serve to illuftrate at once the gratititude of the holy fee, and the just punishment of the royal bigot: for upon the authority of this very conftitution, 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 perfecution upon the continent, we cannot expect that our own ifland fhould be entirely free from the fame fcourge. And therefore we find among our antient precedents a writ de haeretico comburendo, which is thought by fome to be as antient as the common law itfelf. However it appear's from thence, that the conviction of herefy by the common law was not in any petty ecclefiaftical court, but before the archbi shop himself in a provincial fynod; and that the delinquent was delivered over to the king to do as he should please with him fo that the crown had a control over the spiritual power, and might pardon the convict by iffuing no process against him; the writ de haeretico comburendo being not a writ of course, but iffuing only by the fpecial direction of the king in council".

m Cod. 1. 1. tit. 5-
nc de baereticis,
• Cod. 1. 5. 4..

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