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Cap. V. Of Heresie. - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. II [1606]

Edition used:

The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 2.

Part of: Selected Writings of Sir Edward Coke, 3 vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Cap. V.
Of Heresie.

Concerning Heresie five things fall into consideration. First, who be the Judges of Heresie. Secondly, what shall be adjudged Heresie. Thirdly, what is the judgement upon a man convicted of Heresie. Fourthly, what the law alloweth him to save his life. Fifthly, what he shall forfeit by judgement against him.

Touching the First, an Heretique may be convicted a1 before the Archbishop and other Bishops, and other the Clergy at a generall Synod, or Convocation, as it appeareth both by our books, and by history. See the statute of 25 H.8. cap.19. revived by 1. El.cap.I.

b2 And the Bishop of every Dioces may convict any for Heresie, and so might he have done before the statute of 2 H.4. ca.15. as it appeareth by the Preamble of that Act in these words.

Whereas the Diocesans of the said Realme cannot by their jurisdiction spirituall, without aid of the said royall Majesty, sufficiently correct the said false and perverse people, (i. Heretiques, named before) because the said false and perverse people doe goe from Dioces to Dioces, and will not appear before the said Diocesans, but the same Diocesans and their Iurisdiction spirituall, and the keys of the Church with the censures of the same, doe utterly contemn and despise.

Now that statute doth provide, that the Diocesan of the same place, such person or persons, &c. may cause to be arrested, and under safe custody in his prisons to be detained. From this Act and other Acts and Authoritiesquoted in the margent, these Two conclusions are to be gathered. First, that the Dio-|-cesan hath jurisdiction of Heresy, and so it hath been put in use in all Queen Elizabeths reign:3 and accordingly it was resolved by Flemming Chief Justice, Tanfield chief Baron, Williams, and Crook Justices, Hil. 9. Ja. R. in the case of Legate the Heretique, and that upon a conviction before the Ordinary of Heresy, the writ of De haeretico comburenedo4 doth lie. Secondly, that without the aid of that Act of 2 H.4. the Diocesan could imprison no person accused of Heresy, but was to proceed against him by the censures of the Church. And now seeing, that not only the said Act of 2 H.4. but 25 H.8. c.14. are repealed,5 the Diocesan cannot imprison any person accused of Heresy, but must proceed against him, as he might have done before those statutes, by the censures of the Church, as it appeareth by the said Act of 2 H.4. c.15. Likewise the supposed statute of 5 R.2. c.5. and the statutes of 2 H.5. c.7. 25 H.8. c.14. 1 & 2 Ph. & Mar. c.6. are all repealed, so as no statute made against Heretiques standeth now in force: and at this day no person can be indicted, or impeached for Heresy before any temporall Judge, or other, that hath temporall jurisdiction, as upon perusall of the said statutes appeareth.

Every Archbishop of this Realm may cite any person dwellinginany Bishops Dioces within his province for causes of Heresy,6 if the Bishop, or other Ordinary immediate thereunto consent, or if that the same Bishop, or other immediate Ordinary, or Judge doe not his duty in punishment of the same.

2. Touching the second point, if any person be charged with Heresy before the High Commissioners, they have no authority to adjudge any matter or cause to be heresy, but only such, as hath been so adjudged by the authority of the Canonicall, Scripture, or by the first four generall Councells, or by any other generall Councell, wherein the same was declared heresie by the expresse and plain words of the Canonicall, Scripture, or such as shall hereafter he determined to be heresy by Parliament, with the assent of the Convocation: for so it is expresly provided by the said Act of 1 El. And albeit this Proviso extendeth only to the said 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 weighty a cause.

No manner of Order, Act, or Determination for any matter of Religion, or cause Ecclesiasticall, had or made by the Authority of the Parliament in Anno 1 El.7 shall be accepted, deamed, interpreted, or adjudged Heresy, Schism, or Schismaticall opinion, any order, decree, sentence, constitution, or law (whatsoever the same be) notwithstanding.

There was a statute supposed to be made in 5 R.2.8 that Commissionsshould be by the Lord Chancellor made, & directed to Sherifs, and others, to arrest such as should be certified into the Chancery by the Bishops, and Prelates, *9 Masters of Divinity, to be preachers of heresies, and notorious errors, their fautors, maintainers, and abetters, and to hold them in strong prison, until they will justifie themselves to the law of holy Church. By colour of this supposed Act, a10 certain persons, that held, that images were not to be worshipped, &c. were holden in strong prison, until they (to redeem their vexation) miserably yeelded before these Masters of Divinity to take an oath, and did swear to worship images, b11 which was against the morall and eternall law of Almighty God. We have said (by colour of the said supposed statute, &c.) not only in respect of the said opinion, but in respect also, that the said supposed Act, was in truth never any Act of Parliament, though it was entred in the Rolls of the Parliament, for that the Commons never gave their consent thereunto. And therefore in the c12 next Parliament, the Commons preferred a bill reciting the said supposed Act, and constantly affirmed, that they never assented thereunto, and therefore desired that the said supposed statute might be aniented, and declared to be void: for they protested, that it was never their intent to be justified, and to bind themselves and their successors to the Prelates, more then their Ancestors had done in times past: and hereunto the King gave his royall assent in these words, y pleist au | Roy.13 And mark well the manner of the penning the Act: for seeing the Commons did not assent thereunto, the words of the Act be, It is ordained and astented in this present Parliament, that, &c. And so it was, being but by the King and the Lords.

It is to be known, that of ancient time, when any Acts of Parliament were made, to the end the same might be published, and understood, especially before the use of printing came into England, the Acts of Parliament were ingrossed into parchment, and bundled up together with a writ in the Kings name, under the great seal to the Sherif of every County, sometime in Latin, and sometime in French, to command the Sherif to proclaim the said statutes within his bayliwick, as well within liberties, as without. And this was the course of Parliamentary procedings, before printing came in use in England, and yet it continued after we had the print, till the reign of H.7.

Now at the Parliament holden in 5 R.2. John Braibrook Bishop of London being Lord Chancellor of England, caused the said Ordinance of the King and Lords to be inserted into the Parliamentary writ of Proclamation to be proclaimed amongst the Acts of Parliament: which writ I have seen, the purclose of which writ, after the recitall of the Acts directed to the Sherif of N. is in these words. Nos volentes dictas concordias, sive ordinationes in omnibus et singulis suis Articulis inviolabiliter observari, tibi praecipimus quòd praedictas concordias, sive ordinationes in locis infra balivam tuam, ubi melius expedire volueris, tam infra libertates, quam extra, publicé proclamari, et teneri faciasjuxta formam praenotatam. Teste Rege apud Westm. 26 May, Anno regni Regis R.2.5.14 But in the Parliamentary proclamation of the Acts passed in Anno 6 R.2. the said Act of 6 R.2. whereby the said supposed Act of 5 R.2. was declared to be void, is omitted: and afterwards the said supposed Act of 5. R.2.wascontinually printed, and the said Act of 6 R.2. hath by the Prelates been ever from time to time kept from the print.

Certain men called Lollards were indicted for heresy,15 upon the said statute of 2 H.4. for these opinions, viz. Quod non est meritorium ad Sanctum Thomam, nec ad Sanctam Mariam de Walsingham peregrinari. 2. Nec imagines Crucifixi et aliorum sanctorum adorare. 3. Nulli sacerdoti confiteri nisi soli deo, &c.16 Which opinions were so far from heresy, as the makers of the statute of 1 Eliz. had great cause to limit what heresy was.

And afterwards they thought not good to contain these opinions in any indictment, but indicted them in general words, one of which indictments as to Lollardy and heresy followeth.17Jurati dicunt super eorum Sacramentum, quod A. R. E. D. Lollardi & falsi haeretici die Jovis post hebdornadam Paschae, Anno regni Regis H.6. post conquestum Nono, apud Abendon in Com’ Berks infra virg. falso et proditioriè ut communes proditores, et insurrectores conspiraverunt, imaginati fuerut, et ad invicero consoederaverunt cum quamplurimis proditoribus illis associatis, & felonibus de eorum comitiva, et eorum falsa malitia praecogitata, ut communes Infidiatores altaram viaram,18ad fidem catholicam destruendam et ibidem falso et proditorie ut communes proditores, et felones dictidñi Regis secerunt, et scripserunt diversas falsas billas, & scripturas seditiosas, & nonnulla fidei & doctrinae Christianae contraria continentes, & eas populo domini regis publicandas & credendas falsò, damnabiliter in diversis locis, viz. in civitatibus London, Sarum, & villis de Coventria & Marleburgh, nequiter posuerunt, fixerunt, & projecerunt, ae indies sic scribere, affigere & projicere & ponere non cessant, nec formidant, in gravissimam majestatis, & coronae dignitatis Regis nostri offensam, & Christianae fidei ludibrium, & pacis dicti domini regis perturbationem & omnium Christi fidelium injuriam & contemptum,19 Which generall indictment, and all other of like form were utterly insufficient in law: For albeit the words of the statute be generall, yet the indictment must contain certainty, whereunto the party indicted may have an answer. Also where the parties are indicted, ut communes inidiatores viarum,20 that also is insufficient, as it appeareth by the statute of 4 H.4. ca.2.

| John Keyser was excommunicated by the greater excommunication before Thomas Archbishop of Canterbury, and Legate of the Apostolique See, at the suit of another, for a reasonable part of goods,21 and so remained eight months: The said Keyser openly affirmed that the said sentence was not to be feared; neither did he fear it. And albeit the Archbishop, or his Commissary hath excommunicated me, yet before God I am not excommunicated: and he said that he speak nothing but the truth, and it so appeared; for that he the last harvest standing so excommunicate, had as great plenty of wheat, and other grain, as any of his neighbours, saying to them in scorn (as was urged against him) that a man excommunicate should not have such plenty of wheat. The Archbishop denying these words to be within the said Act of 2 H.4. did by his warrant in writing comprehending the said cause, by pretext of the said Act commit the body of the said Keyser to the Gaol at Maidstone, for that (saith he) in respect of the publishing of the said words, dictum Johannem non immerito habemus de haeresi suspectum.22 By reason whereof the said John Keyser was imprisoned in Maidstone Gaol and in prison detained under the custody of the Keeper there, untill by his counsell he moved Sir John Markham then Chief Justice of England, and other the Judges of the Kings Bench, to have an Habeas corpus, and thereupon (as it ought) an Habeas corpus was granted: Upon which writ the Gaoler returned the said cause, and speciall matter, and withall, according to the writ, had his body there. The Court upon mature deliberation perusing the said statute, (and upon conference with Divines) resolved, that upon the said words Keyser was not to be suspect of Heresy within the said statute, as the Archbishop took it. And therefore the Court first bayled him, and after he was delivered: for that the Archbishop had no power by the said Act for those words to commit him to prison.

Hillary Warner being an Inhabitant within the parish of S. Dunstans in the West, held opinion,23 published there, & in divers other places, quòd non tenebatur solvere aliquas decimàs Curatori, sive Ecclesiae parochiali ubi inhabitabat.24 Whereupon Richard Bishop of London commanded Edward Vaughan and others to arrest the said Hillary Warner: by force whereof they did arrest him, and detained him in prison a day and a night, and then he escaped. Hillary Warner brought his Action of false imprisonment against Edward Vaughan and others: In bar whereof the Defendants pleaded the statute of 2 H.4. and that the Plaintif held and published the opinion aforesaid; which opinion was, Contra fidem Catholicam, seu Determinationem Sanctae Ecclisiae,25 and that the Defendants, as servants to the said Bishop, and by his commandment did arrest the Plaintiff, and justified the imprisonment; whereupon Hillary Warner the Plaintif demanded in law, and after long and mature delieration it was by Brian Chief Justice, and the whole Court of Common Pleas adjudged, that the said opinion was not within the said statute of 2 H.4. for that it was an error, but no Heresy. Which I have the rather reported,26 for that the Reporter of this case did not only misreport the time of the bringing of the Action, but the statute, which was the ground of the matter in law, and leaveth out the judgement. The record it self is worthy the reading.

Upon that which hath been said touching the said statute of 2 H.4. Four conclusions doe necessary follow. First, that seeing, that many opinions were by the Bishops taken to be heresy, which in troth had no shadow of heresy, and so mistaken, and unjustly extended by the Bishops further then the Purvien,27 and true intention thereof, as by that which hath been, and might be said, appeared, the makers of the said Act of Parliament of 1 El. had great reason to limit (as hath been said) what opinions should be judged Heresy by authority of that commission grounded upon that Act. Secondly, that if any Ecclesiasticall Judge or Commissioner shall by pretext of any statute, or other cause, commit any man to prison, upon motion in Court on the behalf of the party imprisoned, the Judges of the Common Law ought to grant an Habeas corpus for him: upon the reforn of which writ, if it shall appear to the Judges, that the imprisonment is well | warranted by law, the party shall be remanded: and if the imprisonment be without warrant of law, then the party ought to be delivered. Thirdly, if the imprisonment be not warranted by law, the party imprisoned may have his action of false imprisonment, and recover his damages. Fourthly, that when an Act of Parliament is made concerning matter meerly sprituall, as Heresie, &c. yet that Act being part of the lawes of the Realm, the same shall be construed and interpreted by the Judges of the Common Lawes, who usually confer with those that are learned in that profession. But let us now descend to the third point.

3. To the third. a28 It appeareth by Bracton, Britton, Fleta, Stanford, and all our Books, that he that is duly convict of Heresie, shall be burnt to death.

4. To the fourth, b29 The Ecclesiasticall Judge at this day cannot commit the person that is convict of heresie to the Sheriffe, albeit he be present, to be burnt; but must have the Kings Writ De haeretico comburendo,30 according to the Common Law: for now all Acts of Parliament (as hath been said before) against Hereticks are repealed. And the reason wherefore Heresie is so extremely and fearfully punished, is, for that Gravius est aternam, quam temporalem laedere majestatem: and Haeresis est lepra animae.c3132 The party duly convicted of Heresie, may recall, and abjure his opinion, and thereby save his life, but a Relapse is fatall: For as in case of a disease of the body, after recovery, recidivation is extremely dangerous: So in case of Heresie (a disease of the soule) a relapse is irrecoverable. And as he that is a Leper of his body, is to be removed from the society of men, lest he should infect them, by the kings Writ De leproso amovendo:33 So he that hath lepram animae, that is, to be convicted of Heresie, shall be cut off, lest he should poyson others, by the Kings Writ De haeretico comburendo. But if the Heretick will not after comviction abjure, he may by force of the said Writ d34De haeretico comburendo be burnt without abjuration.

5. As to the fifth. e35 The statute made in the 2 year of H.5. cap.7. whereby the forfeiture of lands in fee-simple, and goods, and chattels was given in case of Heresie, standeth repealed by the Act of 1 Eliz. cap.1. The Books that speak of this forfeiture are grounded upon the said Act of 2. H.5. which then stood in force, saving 5 R.2. which was before that statute: for there, though Belknap swore, Per ma foy si home soit miscreant, sa terre est forfeitable, & le seigniour avera ceo p. voy descheate;36 yet was his opinion never holden for law: for neither lands, nor goods f37 before the making of that statute of 2 H.5. were forfeited by the conviction of heresie, because the proceeding therein is meerely spitituall, pro salute animae,38 and in a Court that is no Court of Record. And therefore the conviction of heresie worketh no forfeiture of any thing that is temporall, viz. of lands or goods. g39 For what cause the said hereticks were called Lollards you may reade in Caudries case, and Linwood thereto agreeth. *40 And it is to be observed, that in proceeding against Lollards, the Prelates, besides their opinions, did charge them with hainous offences: As conspirary with multitudes of people, insurrection, rebellion, or some other treason, or great crimes.

We have spoken thus much of this argument, because there be divers wandring opinions concerning some of these points, that are not agreeable to the law, as it standeth at this day. See the fourth part of the Institutes, cap. Chancery, in the Articles against Cardinall Woolsey. Artic. 44.

[1. ]a Bract. 1. 3. fo. 123. & 124. in Conc’ Oxon. Newburg. li. 2. ca. 13. 6 H. 3. Stow. Holl. 203. 2 H. 4. Rot. Parl. nu. 29 Sautries case. Fitz. N. B. 269. a. 1 El. ca. 1.

[2. ]b Vid. 23 H. 8. ca. 9. F. N. B. ubi supra. 5 El. ca. 23. 10 H. 7. 17. b. Doct. & Stud. lib. 2. ca. 29. Br. 2. Mar. tit. Heresy 1.

[3. ]Mat. Hammond Anno 21 El. Holl. 1579. Stowe. 1161. Hil. 9. Ja. Regis. Legates case.

[4. ][Ed.: Writ for burning a heretic.]

[5. ]Vide 1 E.

[6. ]c. 12. 1 El. c. 1. 6. 23 H. 8. ca. 9.

[7. ]1 El. ca. 1.

[8. ]5 R. 2. Stat. 2. cap. 5. repealed by 1 E. 6. c. 12. & 1 Eliz. ca. 1.

[9. ]*In diebus iliis Masters of Divinity (and Batchelors of Divinity) now Doctors of Divinity and Batchelors.

[10. ]a Rot. claus. 19 R. 2. m. 17. in Dors.

[11. ]b Exod. 20. 4. Levit. 26. 1. Deut. 5. 8. & 16. 22. Psal. 97. 7. I John 5. 21.

[12. ]c Rot. Parl. 6 R. 2. nu. 62. Vide 7 H. 4. nu. 62. Rot. Parl.

[13. ][Ed.: it pleases the king.]

[14. ][Ed.: We, wishing the said agreements or ordinances to be inviolably observed in each and every point, command you that you cause the aforesaid agreements or ordinances to be publicly proclaimed and kept in those places in your bailiwick where you shall think it most expedient, both within liberties and without, according to the above mentioned form. Witness the king at Westminster, the twenty-sixth day of May in the fifth year of the reign of King Richard the second.]

[15. ]Coram Rege Hil. 1 H. 5. Rot. 4. & 5.

[16. ][Ed.: [1] That it is not meritorious to make pilgrimages to St. Thomas, nor to St. Mary of Walsingham. 2. Nor to adore images of the crucifix and of other saints. 3. No priests are made except by God alone, etc.]

[17. ]Indictment generall. Vide supra ca. 1. Verbo, Per overt fait. Lollardi & falsi haeretici.

[18. ]Communes insidiatores viarum. Vide sup. c. 1. f. 5. Ad fidem Catholicam destruendá. Diversas falsas billas & scripturas, &c.

[19. ][Ed.: The jurors say upon their oath that A. R., E. D., Lollards and false heretics, on the Thursday after Easter week in the ninth year of the reign of King Henry the sixth after the conquest, at Abingdon in the county of Berkshire, within the virge, falsely and traitorously as common traitors and insurgents conspired, plotted and combined together with many other traitors associated with them, and felons of their company, and by their false malice aforethought, as common besetters of highways to destroy the catholic faith, and there falsely and traitorously, as common traitors and felons of the said lord king, made and wrote various false bills and seditious writings containing many things contrary to Christian faith and doctrine, and falsely, damnably and wickedly set, fixed and cast them forth in various places, that is to say, in the cities of London and Salisbury and the towns of Coventry and Marlborough, in order to publish them to the lord king’s people and that they might be believed by the same people, and from day to day did not cease or fear so to write, fix and cast them forth, to the gravest offence of the majesty and crown of our kingly dignity and in mockery of the Christian faith, and disturbance of the said lord king’s peace, and the injury and contempt of all faithful in Christ.]

[20. ][Ed.: as common besetters of highways.]

[21. ]Mich. 5. E. 4. Rot. 143. Coram Rege. In rationabili parte bonorum.

[22. ][Ed.: we had some reason to suspect the said John of heresy.]

[23. ]Mich. 11 H. 7. Rot. 327. In communi banco.

[24. ][Ed.: that he was not bound to pay any tithes to the curate or parochial church where he lived.]

[25. ][Ed.: Against the catholic faith or the determination of Holy Church,]

[26. ]Hil. 10. H. 7. f. 17.

[27. ]See in the second part of the Institutes, the exposition upon the statute of Artic. Cleri, the resolution of all the Judges of England to the 21 and 22 articles, or objections.

[28. ]a Mir. cap. 4. de Majestie. Bracton, ubi supra. Britton cap 9. Fleta lib. 1. ca. 35. Register. F. N. B. 269.

[29. ]b F. N. B. 269. Rot. Par. 2. H. 4. nu. 29. Sautryes case. Bre de haeretic. comburendo per regem & concilium in Parliamento.

[30. ][Ed.: Writ for burning a heretic.]

[31. ][Ed.: It is more serious to hurt the eternal majesty than an earthly majesty, [and] heresy is leprosy of the soul.]

[32. ]c 2 Mir. tit. Heresie. Br. 7.

[33. ][Ed.: for removing a leper.]

[34. ]d 2 Mar. ubi supra.

[35. ]e Vid. Doct. & Stud. lib. 2. ca. 29. Br. tit. Forfeiture 112. Stan. pl. cor. 35. I. 2. Mar. Br. tit. Heresie.

[36. ][Ed.: By my faith, if someone is an unbeliever his land is forfeitable, and the lord shall have it by way of escheat.]

[37. ]f Vid. hereafter in case of Piracy.

[38. ][Ed.: For the good of his soul. All prosecutions in the ecclesiastical courts are pro salute animae.]

[39. ]g Lib. 5. Caudries case. fol. 25. b.

[40. ]*1 H. 5. fo. 6. a. Rot. Parl. 5. H. 5. nu. 11. in the case of Sir John Oldcastle. Pasch. 9. H. 6. John Sharps case, &c. Rot. Parl. 7. H. 4. nu. 67. 11 H. 4. nu. 29. 3 H. 5. nu. 39. 1 H. 6. nu. 20.