_L._ Burning, as he defines it (ibid. p. 66), is a felony at the common-law, committed by any that maliciously and voluntarily, in the night or day, burneth the house of an other. And he hereupon infers, if a man set fire to the house, and it takes not, that then it is not within the statute. _P._ If a man should secretly and maliciously lay a quantity of gunpowder under another man’s house, sufficient to blow it up, and set a train of powder in it, and set fire to the train, and some accident hinder the effect, is not this burning? Or what is it? What crime? It is neither treason, nor murder, nor burglary, nor robbery, nor theft, nor (no damage being made) any trespass, nor contrary to any statute. And yet, seeing the common-law is the law of reason, it is a sin, and such a sin as a man may be accused of, and convicted; and consequently a crime committed of malice prepensed. Shall he not then be punished for the attempt? I grant you that a judge has no warrant from any statute-law, common-law, or commission, to appoint the punishment; but surely the King has power to punish him, on this side of life or member, as he please; and with the assent of Parliament, if not without, to make the crime for the future capital. _L._ I know not. Besides these crimes, there is conjuration, witchcraft, sorcery and enchantment; which are capital by the statute _1 James, c. 12_. _P._ But I desire not to discourse of that subject. For though without doubt there is some great wickedness signified by those crimes; yet I have ever found myself too dull to conceive the nature of them, or how the devil hath power to do many things which witches have been accused of. Let us now come to crimes not capital. _L._ Shall we pass over the crime of heresy, which Sir Edward Coke ranketh before murder? But the consideration of it will be somewhat long. _P._ Let us defer it till the afternoon. [Sidenote: Of heresy.] _L._ Concerning heresy, Sir Edward Coke (3 _Inst._ p. 39) says, that five things fall into consideration. 1. Who be the judges of heresy. 2. What shall be judged heresy. 3. What is the judgment upon a man convicted of heresy. 4. What the law alloweth him to save his life. 5. What he shall forfeit by judgment against him. _P._ The principal thing to be considered, which is the heresy itself, he leaveth out, viz. what it is; in what fact or words it consisteth; what law it violateth, statute-law or the law of reason. The cause why he omitteth it, may perhaps be this; that it was not only out of his profession, but also out of his other learning. Murder, robbery, theft, &c. every man knoweth to be evil, and are crimes defined by the statute-law, so that any man may avoid them, if he will. But who can be sure to avoid heresy, (if he but dare to give an account of his faith), unless he know beforehand what it is?