CHAPTER VII.

OF OFFENCES AGAINST RELIGION.

It was laid down at the outset of this work that rights are liberties secured to the individual by the compact of civil society (a); and at the beginning of our present division we defined crimes as the violation of rights when considered in a particular point of view, viz. in reference to the evil effect of such violation as regards the community at large (b). It follows from this, that crimes, in contemplation of law, essentially consist in the breach of human institutions; and therefore, though the offences in this and the following chapter are enumerated as offences against religion, yet in a treatise of municipal law, we must consider them as deriving their particular guilt from the law of man.

Of those offences against religion of which cognizance is thus taken by human tribunals, the first is that of

I. [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 (c); to which the Emperors Theodosius and Valentinian added capital punishment, in case the apostate endeavoured to pervert others to the same iniquity (d):

(a) Vide sup. vol. I. p. 29. (b) Vide sup. p. 1.

(c) Cod. l. 7, 1.
(d) Cod. 6.

[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, that in his time apostates were to be burnt to death (e). Doubtless the preservation of Christianity, as a national religion, is, abstracted from its own intrinsic truth, of the utmost consequence to the state; and therefore all 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 animæ. But about the close of the sixteenth 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 (ƒ).] To this end it was enacted by stat. 9 & 10 Will. III. c. 35, that if any person educated in, or having made profession of, the Christian religion, shall by writing, printing, teaching, or advised speaking, assert or maintain there are more Gods than one, or shall deny the Christian religion to be true (g), or the Holy Scripture of the Old and New Testament to be of divine authority, he shall upon the first offence be rendered incapable to

hold any ecclesiastical, civil or military office or employment, and for the second, be rendered incapable of bringing any action, (or to be guardian, executor, legatee, or grantee,) 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 the court in which he was convicted and within four months from the trial renounce his error, he is discharged for that once from all diasabilities.

II. A second offence is that of heresy; which consists not in a total denial of Christianity, but of some of its principal doctrines, publicly and obstinately avowed (h).

[Heresy was described among the canonists, in vague and general terms, as consisting of any deviation from the true Catholic faith, as understood by Holy Mother Church (i),-very contrary to the usage of the first general councils, which defined all heretical doctrines with the utmost precision and exactness (j); and spoke of heretics by name as in the case of the Manichæans, Nestorians, and others (k). The cognizance of heresy has always been held in every country, where the canon law has prevailed, to belong to the ecclesiastical judge (1) ; and the canonists have ever treated it with great severity. On the continent, they 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

(h) 1 Hale, P. C. 384.

(i) “Hæreticus, qui de articulis fidei aliter prædicat, sentit, vel doceat, quàm docet sancta mater ecclesia."-See 1 Hale, P. C. 383.

(j) 4 Bl. Com. p. 45.
(h) See Hale, ubi sup.

(1) Year Book, 27 Hen. 8, 14 b; stat. 2 Hen. 4, c. 15; 1 Hale, P. C. 384; Bl. Com., ubi sup.

[intercede and pray on behalf of the convicted heretic, ut citra mortis periculum, sententia circa eum moderetur (m). well knowing at the same time that they were delivering the unhappy victim to certain death. Hence the capital punishments inflicted on the ancient Donatists and Manichæans, by the Emperors Theodosius and Justinian (n): hence also the constitution of the Emperor Frederic, mentioned by Lyndewode (o): adjudging all persons without distinction to be burned by 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 (p). 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 somewhat 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 Anjou (q).

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 not only find that our ecclesiastical courts were always in the habit of proceeding against heretics by spiritual punishments, such as penance, excommunication and the like; but we also discover among our antient precedents a writ de hæretico comburendo, which is thought by some to be as an(m) Greg. Decret. lib. 5, t. 40, c. 27.

(n) Cod. 1. i. tit. 5.

(0) C. de Hæreticis.

(p) Cod. 1, 5, 4.

(2) Baldus in Cod. 1, 5, 4.

tient as the common law itself (r). However, it appears that it was not the practice to issue this writ except upon a conviction for contumacy or relapse; nor unless such conviction took place before the archbishop himself in a provincial synod or convocation. And even that authority could not lawfully award the writ, but merely left the delinquent to the secular power: so that the crown might pardon him, if it thought proper, by forbearing to issue the writ; which was not grantable as of course, but issued by the special direction of the sovereign (s). [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 (t) took root in this kingdom, the clergy, taking advantage, from the king's dubious title, to demand an increase of their own power, obtained an act of parliament (2 Hen. IV. c. 15), which sharpened the edge of persecution to its utmost keenness (u). 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

(r) 1 Hale, P. C. 392; 1 Hawk. b. 1, c. 2, s. 10; and see St. Tr. vol. ii. 275. It seems clear, however, that, at common law, heresy was not punishable by forfeiture of lands or goods. 1 Hale, P. C. 388 (n).

(s) 1 Hale, P. C. 385, 393, 395. According to some opinions, the writ de hæretico comburendo was, at common law, not only in practice confined to convictions before the archbishop in provincial synod, but could not legally be awarded on a conviction before any court of inferior authority, such as that of the diocesan. See 1 Hale, P. C. 391; 12 Rep. 56, 57.

(t) So called not from lolium or

tares (an etymology which was afterwards devised in order to justify the burning of them, see Matth. xiii. 30), but from one Walter Lolhard, a German reformer, A.D. 1315 (Mod. Un. Hist. xxvi. 13; Spelm. Gloss. 371); or, as some hold, from Lollen, to sing, in reference to their psalmsinging. (D'Aubigné, Hist. of Reformation, vol. v. p. 130.)

(u) A previous Act (5 Ric. 2, st. 2, c. 5,) had been aimed at the followers of Wickliffe, but the people would not assent to it, and it was revoked the following year. (See Hist. Eng. L. by Reeves, vol. iii. p. 163.)