During the early ages of Chri'atianity, the term hcre,s'y gradually lost the innocence of its original meaning, and came to be applied, in a reproachful sense, to any corrup tion of what was considered as the orthodox creed, or even to any departure from the established rites and ceremonies of the church. In the present article, we do not intend to enter into a minute history of the various heresies, which have at different times disturbed the repose of the church, and given occasion to persecutions, which arc revolting to the milder genius of modern times. All that we propose is, to give a short view of the progressive doctrines of the law upon this subject.
In our definition of the word heresy, we have marked the essential character of the offence, as it falls under the view of the law. In the law of England, however, it seems difficult to determine precisely what errors amount to he resy, and what do not. By our ancient constitution, this was left generally to the determination of the ecclesiastical judge, who, in this respect, had a most arbitrary latitude allowed him. For the general definition of an heretic given by Lyndewode, (cap. de Hareticis,) extends to the slightest deviations from the doctrines of the holy church : hxreticus est qui dubitat de fide Catholica, et qui negligit scrvare ea, gux Romance eccicsia 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 con trary this to the usage of the first general councils, Nvhich defined all heretical doctrines with the utmost precision arid exactness. And the uncertainty of the crime, which ought to have alleviated the punishment, 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 to enjoin penance, exconnnuni cation, and ecclesiastical deprivation, for heresy ; though af terwards they proceeded boldly to imprisonment by the ordinary, and confiscation or goods in pies uses. But, in the mean time, they had prevailed upon the weakness of bigotted princes, to render the civil power subservient to their purposes, by making heresy not only a temporal but even a capital offence ; the Romish ecclesiastics determin ing, 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 ten der and delicate to intermeddlc. Nay, they even pretended
to intercede and pray, on behalf of the convicted heretic, ut titre inertia periculum scntentia circa cum moderetur ; (Decret.l. 5. t. 40. c. 27.) well knowing, at the same time, that they were delivering the unhappy victim to certain death. Hence the capital punishments inflicted on the an cient Donatists and Manichxans, by the emperors Theo dosius and Justinian, (Cod. I. I. tit. 5.) ; hence also the constitution of the emperor Frederic, mentioned by Lynde wode, (cap. de Hxreticis,) 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 should be lawful for good Catholics to seize and occupy the lands, and ut terly 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 duti ful sons of the church, which formed a fruitful source of contention and animosity during the dark ages of Europe.
While Christianity was thus deformed by the demon of persecution upon the continent, it was not to he expected that our own island should be left entirely free from the same scourge. Accordingly, we find among our ancient precedents a writ de haretico comburcndo, which is thought by some to be as ancient as the common law itself. It ap pears front thence, however, 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 centroul over the spiritual power, and might. pardon the convict, by issuing no process against him ; the writ do hxretice comburendo being not a writ of course, but is suing only by the special direction of the king in council.