continues the historian, in writing of that period, had been free from like barbarities. (Hume, VII. 9.)

The statute of 1 Ed. VI. cap. 12, with a laudable spirit, repealed all acts concerning doctrine or matters of religion; but that act was itself repealed in the reign of Philip and Mary.

It was not until the statute 1 Elizabeth, cap. 1, that the statute laws concerning heresy were finally abolished : that act repealing all former statutes relating to heresy; which, "therefore, leaves the jurisdiction of heresy as it stood at common law, namely, as to the infliction of common censures in the ecclesiastical courts, and in the case of burning the heretic, in the provincial synod only" (Bl. Comm. IV. 48); though Sir Matthew Hale was of opinion, that the diocesan might proceed to burning the heretic. (P. C., I. 405.) Sir Edward Coke says, "At this day no person can be indicted or impeached for heresy before any temporal judge, or other that hath temporal jurisdiction." (Rep. XII. 57.)

The makers of the statute 1 Elizabeth, according to Sir Edward Coke, were in doubt what should be adjudged heresy, and therefore the statute provides, that if any person be charged before the high commissioners with heresy, they shall have no authority to judge any matter to be heresy, but only such as hath been so adjudged, (1st) by the authority of canonical scripture, and (2d) by the first four general councils, or by any other general council wherein the same was declared heresy by the express and plain words of canonical scripture, or (3d) such as shall hereafter be determined to be heresy by Parliament with the assent of the convocation.

The writer adds, "Although this proviso extends only to the high commissioners, yet seeing in the high commission there be so many bishops and other divines and learned men, it may serve for a good direction to others, especially to the diocesan, being a sole judge in so mighty a case.'

Still, the writ de hæretico comburendo remained in force at the common law, but at length this infamous process was totally abolished by the statute 29 Charles II. cap. 9. Instead, however, of proceeding from the prevalence of juster sentiments concerning religious liberty, this statute seems to have been made in the dread of the return to Popery. (Hume, IX, 536).

Heresy was now defined to be, "sententia rerum divi

narum humano sensu excogita, palam docta et pertinaciter defensa." (Hal. P. C. I. 384.) Serjeant Hawkins says, "It seemeth that amongst Protestants heresy is taken to be a false opinion, repugnant to some point of doctrine clearly revealed in scripture, and either absolutely essential to the Christian faith, or, at least, of most high importance." (Hawk. I. 3.)

Persecution still continued the practice of Christians, though it received a different direction. The laws of that period, and of succeeding ages, were directed against persons professing the Roman Catholic religion.

The statute 35 Elizabeth, cap. 2, was the first act which made any distinction between Roman Catholic and other nonconformists to the Established Church.

I shall not go into any account of the laws enacted against Roman Catholics, because they are foreign to my purpose; neither shall I enumerate the intolerant statutes which affected Protestant Dissenters, because, so far as they are material to the present question, they are repealed. The statute 1 William and Mary, cap. 18, commonly called the Toleration Act, enacts, that neither the statutes therein particularly enumerated, nor any other law or statute made against Papists, (except 25 Car. II. cap. 2, and 30 Car. II. stat. 2, cap. 1, commonly called the Corporation and Test Acts,) shall be construed to extend to any person dissenting from the Church of England that shall take the oaths of allegiance and supremacy, and make and subscribe the declaration against Popery of 30 Charles II. stat. 2, cap. 1; and the fourth section of the same act enacts, that none of the said persons shall be prosecuted in any ecclesiastical court, for or by reason of their nonconformity to the Church of England. The 17th section of the act provides, that nothing therein contained shall be construed to extend to any person that shall deny, in his preaching or writing, the doctrine of the blessed Trinity, as it is declared in the Thirty-nine Articles; and this exception is repealed by the statute 53 George 111. cap. 160.

2dly. The following deductions appear to me so clearly to result from this detail of the penal laws on the subject of religious opinion, that I should have thought them unquestionable, but for the sentiments expressed by the late Lord Chancellor in delivering the judgment to which I have adverted.

1. That every difference of practice from the Established Church was, by the common law, heresy.

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2. That all heresy was cognizable, 1st, by the archbishop in a provincial synod, and, in case of conviction, was pu nishable by burning by the writ de hæretico comburendo and 2d, by the ordinary ecclesiastical courts, which had power to punish by censures and excommunication, and, after the statute 2 Henry IV. cap. 15, by burning.

3. That heresy was not, by the common law, cognizable in the temporal courts, and only became so by statute.

4. That the consequence of the repeal of all statutes relative to heresy, by the statute 1 Elizabeth, cap. 1, was, that heresy again ceased to be a temporal crime, and was left cognizable and punishable as at common law.

5. That the statute 29 Charles II, cap, 9, having taken away the writ de hæretico comburendo, heresy became punishable by ecclesiastical censures only.

6. That all persons conforming to the provisions of the Toleration Act, 1 William and Mary, cap, 18, are exempted from prosecution and punishment in the ecclesiastical courts by reason of their nonconformity to the Church of England.

7. That the statute 53 George III. cap. 160, having repealed the exception in the act of 1 William and Mary, as to persons denying the doctrine of the Trinity, has equally abolished the ecclesiastical crime of heresy, as affecting persons complying with the terms of that statute.

And therefore, 8, that all Protestant Dissenters are equally exempted from temporal and ecclesiastical punishment by reason of their nonconformity to the Church of England.

3dly. I shall now proceed to an examination of some of the opinions delivered by the Lord Chancellor in giving his judgment upon the case in question, as reported by Mr. Merivale in the third volume of his Cases in Chancery.

His Lordship observes (p. 405), "that the object of the Toleration Act seems to have been merely, as stated in the title of the act, viz., to exempt his Majesty's Protestant subjects dissenting from the Church of England from the penalties' of the laws therein mentioned; not appearing, therefore, either upon the terms or substance of it, to have done, or to have intended to do, any more leaving the common law exactly as it was with respect to all commonlaw offences against religion or religious establishments.".

In page 399, he says, "Of this I am satisfied, that in one House of Parliament at least, it was never intended by these measures" (the repeal of the English, Scotch, and Irish statutes against impugning the doctrine of the Trinity) to do any thing that should alter, or in any manner affect, the common law."

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Here I must object, that no testimony as to the intention of one part of the Legislature is admissible as a rule for interpreting the sense of the legislative body. If such evidence is to be admitted, all the rules of interpretation applied to discover the intention of the Legislature from what it has said and done, may be at once overthrown by the assertion of an individual, that the intention of the Legislature is not that which, by the established rules of construction, judges and lawyers would infer. Demurring, therefore, to this unusual method of interpreting the intention of the Legislature, I contend, that it must be discovered from what it has said and done, and not from evidence of what has been said and done by individuals in “one House of Parliament."

His Lordship, after citing the Act of Toleration, proceeds thus: "In that act there is an express provision, S. 17, that no clause or article therein should extend to give any ease, benefit or advantage to any Papist or Popish recusant whatever, or any person who should deny the doctrine of the blessed Trinity declared in the Articles of Religion. Afterwards, in the 9th and 10th of William, an act passed, entitled, 'An Act for the more effectual suppressing of Blasphemy and Prophaneness,' and it recites that, whereas many persons had of late years openly avowed and published many blasphemous and impious opinions contrary to the doctrines and principles of the Christian religion, greatly tending to the dishonour of Almighty God, and may prove destructive to the peace and welfare of this kingdom; therefore, 'for the more effectual suppressing of the said detestable crimes,' it was enacted, that if any person or persons, having been educated in, or at any time having made profession of, the Christian religion, within the realm, shall, by writing, printing, teaching, or advised speaking, deny any one of the persons in the holy Trinity to be God, or shall assert or maintain that there are more Gods than one, or shall deny the Christian religion to be true, or the Holy Scriptures of the Old and New Testament to be of divine authority; and

shall, upon indictment or information, be thereof lawfully convicted, upon the oath of two witnesses, such person shall for every such offence, and for the repetition thereof, incur such several and distinct disabilities and penalties as by the said act are provided. Now, it is to be observed, that the opinions, the publication of which in any of the modes specified it is the intention of this act to prevent, are not thereby expressed to be opinions contrary to those of the Church of England, but contrary to the Christian religion."

It is admitted that the Christian religion has been repeatedly declared by judges of eminent learning to be part of the common law; but surely it would be too much to say that every offence contrary to the Christian religion is, therefore, an offence at common law. No judge or lawyer could ever have intended to advance such a proposition; and an examination of the authorities will shew, that the Christianity which is part of the common law is not the doctrinal and evanescent opinions of a particular church or sect, but that Christianity which is the same yesterday, to-day, and for ever, namely, the facts, and principles, and spirit of Christianity.

That such was the opinion of that eminent Judge, Lord Mansfield, is evident from his language in the great case of Evans v. the Chamberlain of London. "It must be allowed," said he," that the principles of natural and revealed religion and morality are the principles of common law; so that any persons opposing these principles are actionable at common law : but neither the principles of natural religion, and much less those of revealed religion and morality, will admit of a person's being prosecuted for opinions differing from others with respect to particular modes of worship." (Furn. Lett. to Bl. 13.) To prosecute for denying the doctrine of the Trinity, what is it but to "prosecute for opinions differing from others with respect to particular modes of worship"?

The principal cases cited to exemplify the position that Christianity is part of the common law, are the King v. Taylor, and the King v. Woolston.

The case of the King v. Taylor (Ventris, I. 293) was

* In the 34 H. VI., Chief Justice Prisot declared in the Court of Common Pleas, Scripture est common ley, sur quel touts manières de leis sont fondés. Year Book, 34 H. VI., 40.