The Online Library of Liberty

A project of Liberty Fund, Inc.

• Acknowledgments and Dedicatory
• A Note On the Texts, Editions, and Translations
• Introduction
• Chronology of Events
• Editions of Coke’s Works
• Mottoes and Crests of Sir Edward Coke
• I: Reports
• Part One of the Reports
• The Preface to the Reader.
• Shelley’s Case.
• Part Two of the Reports
• (preface) to the Learned Reader.
• Manser’s Case.
• The Case of Bankrupts.
• |[46 A] the Archbishop of Canterbury’s Case. *
• Part Three of the Reports
• (preface) to the Reader.
• Heydon’s Case.
• Fermor’s Case.
• Part Four of the Reports
• (preface) to the Reader.
• The Lord Cromwell’s Case. *
• Cutler V. Dixon.
• Vaux’s Case.
• Slade’s Case.
• Part Five of the Reports
• (preface) to the Reader.
• Foster’s Case.
• Cases of By-laws and Ordinances the Chamberlain of London’s Case.
• Clark’s Case.
• The Case of Market-overt.
• Semayne’s Case.
• Rooke’s Case.
• Pinnel’s Case.
• |[125 A] the Case De Libellis Famosis.
• Part Six of the Reports
• (preface) to the Reader.
• Jentleman’s Case.
• Part Seven of the Reports
• (preface) Deo, Patriae, Tibi. 2
• Calvin’s Case, Or the Case of the Postnati. 1
• The Case of Swans.
• Penal Statutes.
• Part Eight of the Reports
• (preface) Deo, Patriae, Tibi. 3
• Vynior’s Case. *
• Dr. Bonham’s Case.
• The Case of Thetford School, &c.
• Part Nine of the Reports
• (preface) Deo, Patriae, Tibi. 3
• William Aldred’s Case.
• John Lamb’s Case.
• Mackalley’s Case. (in the Killing of the Sergeant of London.)
• Part Ten of the Reports
• (preface) Deo, Patriae, Tibi. 5
• The Case of Sutton’s Hospital.
• The Case of the Isle of Ely.
• Part Eleven of the Reports
• (preface) Deo, Patriae, Tibi. 4
• The Lord De La Warre’s Case.
• The Case of the Tailors of Habits &c. of Ipswich.
• The Case of Monopolies.
• James Bagg’s Case.
• Part Twelve of the Reports
• Ford and Sheldon’s Case.
• Case of Non Obstante, Or Dispensing Power.
• Q. If High Commissioners Have Power to Imprison.
• Floyd and Barker.
• Of Oaths Before an Ecclesiasticall Judge Ex Officio.
• Of Pardons.
• Customs, Subsidies, and Impositions.
• Buggery. 1
• Premunire.
• Nicholas Fuller’s Case.
• Sir Anthony Roper’s Case.
• Sir Anthony Roper’s Case.
• The Case of Heresy.
• Langdale’s Case.
• Mouse’s Case.
• Prohibitions Del Roy.
• The Lord Aburgaveney’s Case.
• Of Convocations.
• Proclamations.
• Thomlinson’s Case.
• Walter Chute’s Case.
• Sir Stephen Procter’s [proctor’s] Case.
• Exaction of Benevolence.
• Part Thirteen of the Reports
• (preface) to the Reader.
• Prohibitions.
• The Case De Modo Decimandi, 1 and of Prohibitions, Debated Before the Kings Majesty.

The Case of Heresy.

(1600–1601) 43 Elizabeth I In Conference with Sir John Popham, Chief Justice.

First Published in the Reports, volume 12, page 56.*

Ed.: These are Coke’s notes of a conference with the Chief Justice of the king’s Bench, on the nature of a proceeding for heresy, including the evolution of their procedure, and the problems of indictments brought against Lollards, who were not heretics in the definition by Statute.

Heresie upon conference with Sir John Popham and others, An. 43. Eliz.Note, 2 Mar. title Heresie, Brook per omnes Justiciarios1 & Baker & Hare: The Arch-bishop in his Province, in the Convocation, may and doth use to convict Heresie by the common Law, and then to put them convicted into Ley hands, and then by the Writ, De haeretico comburendo2 they were burnt: But for this, that it was troublesome to call a Convocation of the whole Province, it was ordained by the Statute of 2 Hen. 4. cap. 15. That every Bishop in his Diocesse might convict Hereticks; And if the Sheriff was present, he might deliver the party convict to be burnt, without any Writ De haeretico comburendo: But if the Sheriff be absent, or if he be to be burnt in another County, then there ought to be a Writ De haeretico comburendo; And that the Common Law was such, vide lib. intra. title Indictment, pl. 11. who there are taken for Hereticks, some of them are consonant to true Religion, vide 11 Hen. 7. Book of Entries, fol. 319. see Dr. & St lib. 2. cap. 29. Cosin. 48. 2. see the Statute of 1 & 2. P.M. cap. 6. That Ordinaries wanting authority to proceed against Hereticks, 3. F. N. B. fol. 269. And the Writ in the Register, which in the new Writ is omitted proves this directly, 4. Bracton, lib. 3. cap. 9. fol. 123, 124. Concilio Oxoniensi quidam Diaconus convictus fuit de Apostasia, sed primo degradatus fuit per Ordinarium:3 And true it is, that every Ordinary may convent any Heretick or Schismatick before him, Pro salute animae,4 and may degrade him, as Bracton saith, and may injoyn him penance according to the censure of Ecclesiasticall Law: But upon such conviction at Common Law, the party convict shall not be burnt, nor any Writ De haeretico comburendo lyeth upon it; for the Common Law will not commit the Disseison of a Heresie, for the life of a Christian man, to any sole Judge.

Nota, The makers of the act of 1 Eliz. were in doubt what shall be deemed Heresie, Schism, or Schismaticall Opinion: And for this on purpuse the Statute 10 Eliz. provides that nothing shall be deemed Heresie by any of the Commissioners, by vertue of the high Commission, but what had been determined for Heresie by one of the four generall Councils, or expresly by the word of God, or Parliament, and will not leave it to so many of the Bishops and high Divines who are Commissioners, to determine what was Heresie: without question it cannot be thought reasonable that this shall be left without any limitation to one only Bishop, but to a generall Convocation; for Plus vident oculi quam oculus,5 see Fox in Ed. 6. Tyne the Ordinary convicted none but by commission, and it appears by Bracton, vide supra, & Britton, who writ in 5 Edw. 1. lib. 1. cap. 17. That an Heretick shall be burnt for Heresie, but he doth not speak of the manner of conviction: See Horne in Myrrour of Justice; And true it is, that is appears by the preamble of the Statute, 2 Hen. 4. that the Ordinary hath Cognizance of Heresie: And this is true, as it hath been said, Pro salute animae; but not to burn the Heretick before that Statute: And with this agrees the Statute, 2 Hen. 5. cap. 7. 23 Hen. 7. 9. 25 Hen. 8. cap. 14. which recites the mischief, and the said act 2 Hen. 4. introduceth, scil. That a man incurs the losse of his life, good fame, or goods, upon naked suspition without due examination and testimony, or presentment, viz. Confession, &c. Also that the words in the said Act, viz. Cannonical Functions, were to generall and incertain; Also that it was not defined by the said act what was Heresie, the said Act repeals the act, 2 Hen. 4. & 2 Hen. 5. and the same act 25 Hen. 8. gives power to the Ordinary to proceed in other form and manner then the Statute 2 Hen. 4. hath provided, viz. That the Ordinary shall only proceed upon presentment or indictment of Heresies, or upon an accusation of two lawfull witnesses, and not otherwise. Also the Ordinary cannot burn the Heretick without the Kings Writ De haeretico comburendo, so that the proceeding in that Commencement and end was altered by the Statute 25 Hen. 8. and where this Statute sayes, Ordinaries having power to examine Heresies, this restrains it to Ordinaries themselves and not to Suffragans, Commissaries, &c. Then came the Statute of 1 Edw. 6. cap. 12. and that repealed, 5 Ric. 2. 2 Hen. 5. & 25 Hen. 8. but not the 2 Hen. 4. by expresse words, but by generall words, viz. All Statutes concerning matter of Religion: then came the Statute 1, & 2. P & M. cap. 6. and revived the Statute 2 Hen. 4. amongst others, by the reviver of which, without more, the Statute of 25 Hen. 8. loseth its force, so that the Ordinary may proceed upon bare suspition, and burn in any case without the Kings Writ: But by the act 1, & 2. P. & M cap. 8. after divers acts expresly repealed, Scil. 21 Hen. 8. 23 Hen. 8. 24 Hen 8. 27. Hen. 8. but the act of the 25 Hen. 8. cap. 14. was not expresly repealed, for this was repealed before by the act 1 Edw. 6. and yet in the end of that long and prolix Act, there is a generall clause which is sufficient of it self to repeal the Act of 25 Hen. 8. cap. 14. without more, Scil. the Ecclesiasticall Jurisdiction of the Arch-bishop and Ordinary to be in the same Estate, for processe of Suits, punishment of crimes, and execution of Church censures, with knowledge of Causes belonging to the same; and as large in these points as the said Jurisdiction was the twentieth year of the Raign of Hen. 8. by which Clause without question the Act of the 25. of Hen. 8. cap. 14. was repealed; then came the Statute of 1 Eliz. cap. 1. and by this the said Act of the 1, & 2. Phil. & Mar. is repealed, except such branches as after in the Act is excepted: And after divers acts particularly are repealed by the Act 1, & 2. Phil. & Mar. and are revived by 1 Eliz: particularly: And after in the same act of 1 Eliz. it is enacted, that all other Statutes repealed by the said act of Repeal of 1, & 2. Phil. & Mar. and not in this act specially revived shall remain repealed: But the act 25 Hen. 8. cap. 14. was not particularly revived, and therefore is repealed; And after it is enacted by the Statute of 1 Eliz. that the said act 1, & 2. Phil. & Mar. of reviving of three Acts for punishment of Heresies, and the said three Acts themselves shall be repealed, so that now at the Common Law none can be burnt for Heresie, but by conviction at a Convocation, for the Statute of 2 Hen. 4. cap. 15. and 25 Hen. 8. 14. are now repealed, and no regard was had to the said Doctor Cosins, in his Apology pag. 48. That he heard the two chief Justices, &c. for he doth not touch any time, or persons, &c. And it may very well be that they said, That cognizance of Heresie belongs to Ordinaries Quatenus6 to penance, but not Quatenus to losse of life.

Note also, that by the said Writ in the Register, it appears that Hereticks convict ought first to abjure, so that it may be said Omnes infra ovile,7 and after relapsed into the same Heresie, there he shall suffer death: And with this accords Fitzh. but quaere de hoc.8

Note, divers were convicted in the time of Queen Eliz. upon the Statute of 2. Hen. 4. for the order and form of 25 Hen. 8. was not observed, both which acts are repealed; So William Newburgess. lib 2. cap. 13. de haeretico comburendo in France.

Note, the High Commission may punish Heresies, and upon their conviction a Writ De haeretico comburendo. See the Act 6. Ric. 2. by which the Commons disavowed their assent to the act of 5 Ric. 2. That Hereticks shall be imprisoned, &c. upon the Certificate of the Bishops, &c. and there the Commons declared, that it was not their intent to be justified, nor bound themselves, nor their Successors to Prelates, more then their Ancestors had done in time past.

Note well, the act 5 Ric. 2. was contrived by the Prelates in the name of the Commons, wheras they never assented: And this private act of 6 Ric. 2. not Printed, nor was it after divers Parliaments, as it may appear before.

[* ]There is a most unusual degree of variation among the editions for this report. The text of the 1656 edition is reproduced here. The 1826 report being so much fuller, it is reproduced in whole in the note ** below.

[1. ][Ed.: according to all the judges]

[2. ][Ed.: for burning a heretic;]

[3. ][Ed.: At a council at Oxford a certain deacon was convicted of heresy, but first he was degraded by the Ordinary:]

[4. ][Ed.: For the salvation of his soul,]

[5. ][Ed.: Two eyes can see better than one,]

[6. ][Ed.: [Who are only] commanded.]

[7. ][Ed.: All within the fold,]

[8. ][Ed.: investigate the matter.]

[* ]There is a most unusual degree of variation among the editions for this report. The text of the 1656 edition is reproduced here. The 1826 report being so much fuller, it is reproduced in whole in the note ** below.

[**]The 1826 edition provides:The archbishop and other bishops, and other the clergy, at a general synod or convocation mightconvict a heretic by the Common Law. But for this, that it was troublesome to call a convocation of the whole province, it was ordained by the Statute of 2 Hen. 4. cap. 15. that every bishop in his diocese might convict heretics; and, note, 2 Mary Brook, title Heresy, per omnes justic’,1

[1][Ed.: according to all the judges]

[][Ed.: for burning a heretic;]

[][Ed.: In the council of Oxford a certain deacon was convicted of apostasy, but first he was degraded [from his orders] by the ordinary:]

[][Ed.: for the salvation of his soul,]

[][Ed.: At the pleasure of the king.]

[][Ed.: We, wishing the said accords or ordinances to be inviolably observed in all and singular their points, command you that you publicly proclaim the aforesaid accords and ordinances in those places within your bailiwick where you think fit, both within liberties and without, and cause them to be kept according to the aforementioned form. Witness the king at Westminster on the twenty-sixth day of May in the fifth year the reign of King Richard II.]

[][Ed.: [1] that it is not meritorious to make pilgrimages to St. Thomas or to St. Mary of Walsingham; (2) nor to adore images of the crucifix and of other saints; (3) no priests to be allowed except by God alone, etc.]