2 Hen. IV. c. 15 (De hæretico comburendo); Sawtre burned a under the writ De hæretico comburendo; such persons, on the order of the bishops, should be arrested and imprisoned by the sheriffs "till they will justify, according to the law and reason of holy church." Not until 1400 did the clergy obtain, under circumstances heretofore described, the famous statute of 2 Hen. IV. c. 15 (De hæretico comburendo), in which it was provided that the convicted heretic who refused to abjure, or who after abjuration should relapse, should be taken by the sheriff or other civil authority and burned in a public place as an example and terror to others. Although this first burning statute was not passed until March 10, the fact remains that a week before one William Sawtre week before was burned under a writ De hæretico comburendo entered upon its passage the Parliament Roll, and dated March 2. The writ recites the fact that Sawtre had been convicted by the archbishop and bishops in a provincial council, and commands the mayor and the sheriffs to burn him in a public place. While the older lawyers upon inadequate authority promulgated the idea, for a long time accepted, that this writ was as old as the common law itself, a reëxamination of the whole subject has resulted in the conclusion that there is no evidence that such a writ was ever issued prior to Sawtre's case.1 In 1414 followed before that the supplementary statute of 2 Hen. V. c. 7, which relates mainly to the question of procedure. These three acts of 1381, 1400, and 1414-which first gave to the ecclesiastical courts the power to arrest and imprison by their own authorunaltered ity, and, in the absence of definitions, made any judgment the ordinary might render as to what constituted heresy conclusive upon the civil power, and which gave to the ordinary the power to command the sheriff to burn the condemned without a writ De hæretico comburendo remained unaltered down to 1533. Then it was that by the statute of 25 Hen. VIII. c. 14, the statutes of 5 Rich. II. c. 5 and 2 Hen. V. c. 7 were confirmed, while that of 2 Hen. IV. c. 15 was repealed, because it gave power to the ordinaries to put men on trial for heresy upon bare suspicion, and because it failed to "decline any certain cases of heresy." The first positive statutory definition of the crime of heresy came in the following Act of the Six Articles (31 Hen. VIII. c. 14), which, by reason of the new machinery it provided for its punishment, made it "in great 1 Vol. i. pp. 537-540. no such writ ever issued time; acts of 1381, 1400, and 14142 until 1553; statute of 25 Hen. VIII. c. 14; first posi tive statutory definition of heresy contained in the Act of the Six Articles; measure a secular offence."1 Some slight mitigations of the Act of the Six Articles were made by 34 & 35 Hen. VIII. tem for the VI. c. 12; c. I; and so the law stood at the time of his death. Upon whole statthe accession of Edward VI. the whole statutory system for tooth the punishment of heresy was swept away by 1 Edw. VI. c. punishment of heresy 12, and what was then understood to be the common law was swept away by i Edw. reinstated, that is to say the right of the ecclesiastical court, after conviction, to ask for the writ De hæretico comburendo as granted in Sawtre's case.2 In that condition, in which the crown and the bishops had to concur before a burning could take place, the law remained until the old statutes of Richard revived by II., Henry IV., and Henry V. were reënacted by 1 & 2 Phil. & Mar. c. 6. & Mar. c. 6, as heretofore explained. 1 & 2 Phil. persecution intolerance; ble power carry with It is now generally admitted on every hand that religious Religious persecution was the natural outcome of the medieval spirit of the outcome intolerance, the common heritage of all religious sects and of mediaval factions which date from that period. The idea had its root in the belief that whoever possessed the infallible power to the infalli teach should likewise possess the correlative right to extirpate to teach error by physical means. Down to the Reformation, infalli- supposed to bility was claimed as the exclusive heritage of the Church of it the right to extirpate Rome. After that event, under the opposing theory of private error by judgment, "the papal infallibility was sometimes transferred physical to the leader of a petty sect; at other times a dreaming enthu- the right claimed by siast would become his own pope, and would consult nothing all sects; but the oracle within his own breast." 8 The theory of the right thus underwent no change; a new question simply arose as to the functionary or tribunal by whom it could be legiti mately exercised. When Calvin burned Servetus, he simply personal as put into force the new theory of personal as opposed to the older opposed to theory of corporate infallibility. The persecution that took infallibility: place during Mary's reign constitutes a long and livid chapter 1 Hale, P. C., p. 403; Stephen's Hist. of the Crim. Law, vol. ii. p. 438. 2 See above, p. 146. Under that condition of things Joan Bocher suffered in May, 1550, and George Van Paar in the next year. Stephen considers that the executions in both cases were illegal, for the reason that it was a mistake to suppose that the issuance of the writ was justified by Sawtre's case. Hist. Crim. Law, vol. ii. p. 459. means; corporate persecution carried on in the sad story of catholic and protestant intolerance, which extends from the Lollard revolt down to the reign of James I., the Marian when executions for heresy came to an end.1 The Marian persecution was carried on under old statutes and in the old form, with an additional stimulus in the shape of commissions, by virtue of which certain high public officials were associated with the bishops as "co-assessors," 2 in order to insure their zeal in the sickening work which was executed with a fanatical ruthlessness never before known. under old statutes and in the old form. Statistics of the persecution; nearly all the victims The statistics of the persecution, drawn in the main from the narrative of Foxe, reveal the fact that from the execution of John Rogers, who was to "break the ice," on the 4th of February, 1555, down to the end of Mary's reign, about two hundred and seventy-seven persons, men and women, suffered by fire, of whom about two hundred and forty belonged to the laboring classes, while the remainder consisted of seven tradesmen, nine of the village gentry, sixteen priests, and five bishops, Hooper, Ferrar, Ridley, Latimer, and Cranmer. It further appears that nearly all the victims were taken from the southtaken from east of England, from a district having as its principal centres the south London and Canterbury, and in which it is reasonable to supEngland; pose protestantism was more general than elsewhere. And yet, despite the persecuting. zeal which has wreathed Mary's name with a terrible epithet that will live forever, she utterly failed either to satisfy the papacy, or to drive the nation back into the fold of the older faith. In the desperate effort made to attain these ends the queen was ably supported, first by Gardiner as Gardiner, and then by Pole. Although the prior training of the former made him hesitate at first as to the restoration of the papal supremacy, he yielded to pressure as the reign advanced, while from the outset he committed himself by his conduct in parliament to the policy of active persecution. east of its failure to accomplish the desired end; a perse cutor; 1 The last person burned for heresy in England was Edward Wightman, who suffered at Lichfield, in April, 1612. Fuller's Ch. Hist., vol. iii. pp. 252-255, ed. 1837. The infliction of such punishment was, however, legally possible down to the year 1677, when the writ of De hæretico comburendo was taken away by 29 Chas. II. c. 9, which also abolished "all punishment of death in pursuance of any ecclesiastical censures." 2 See Strype's Mem. Eccl., vol. iii. pt. i. pp. 286-296; Foxe's Acts and Mon., vol. vi. pp. 587, 598, 649; Ibid., vol. vii. pp. 293, 296. 3 The whole matter is well summed up by Blount, Reform. of the Church of Eng., vol. ii. pp. 220-226. 4 See above, p. 135. 3 death in became church and restore the and first fruits; restitution Not until after Mary's third parliament had passed the great act of reconciliation that swept away the whole legislative fabric which Henry VIII. had built up, and not until after the heresy statutes, at the same time reënacted, had been put into vigorous operation under Gardiner's personal supervision,1 did his death in November, 1555, leave Pole, after the manner of after his Wolsey, the supreme counsellor in all matters both of church November, and state. The only particular in which Pole fell short of 1555, Pole complete success in his effort to reestablish the condition of supreme in things that had existed before the schism began was his failure state; to restore to the monastic communities the abbey lands which failure to had been so widely distributed, and to the See of Rome the abbey lands annates and firstfruits which had been annexed to the crown since the 20th of Henry VIII. As a partial compensation, Mary had of her own motion, and in the face of pressing obligations, given back to the church in March, 1555, all the abbey partial lands that remained to the crown, while in the parliament made by which met in the following October an act was passed, not crown and parliament; restoring the annates and firstfruits to the pope directly, but providing that they should be devoted under the direction of the legate to church purposes. Such concessions, which might have satisfied another pontiff, fell far short, however, of the absolute demands soon to be put forth upon the part of the papacy by Caraffa, who, as the uncompromising leader of the church party organized to meet the Reformation with the Inquisition, was elected to the papal throne in May, 1555, as Paul IV. On the day of the new pope's election arrived in edict of Rome the English ambassadors,5 who were sent to make formal announcement of the act restoring the papal supremacy; character and on the 12th of July Paul, among his first acts, put forth a of church sweeping bull reasserting the decision of the canons as to the sacred and inalienable character of church estates, and threatening all who should dare to withhold them with spiritual penalties. In order to save Pole's work from destruction by 1 The heresy statutes were passed in December, 1554, and in the following January Gardiner presided at the trial of Hooper, Rogers, and others. Foxe's Acts and Mon., vol. vi. pp. 587, 598, 649. 2 As heretofore pointed out, although 23 Hen. VIII. c. 20 was re pealed, the annates were not restored. 3 Burnet, vol. i. p. 514. 4 2 & 3 Phil. & Mar. c. iv. See Poli. Ep., vol. v. pp. 51, 53, 56. 5 Burnet, vol. i. p. 515. 6 Ibid., vol. ii. p. 791. At the time of the schism Henry VIII. had as Paul IV. as to the inalienable estates; tion made save Pole's work; Pole; an excep- excepting England from the general edict, the ambassadors of England finally succeeded in obtaining from Paul a confirmation of the in order to dispensation of Julius III., the basis of the reconciliation, which was read in the commons on the 23d of the following October. But behind the reluctance with which Paul made this exception in order to uphold a bargain that embodied for Paul's ani- him less of triumph than humiliation stood an old animosity mosity to against the legate, which had grown out of personal rivalries and widely divergent views as to the methods by which Lutheranism should be confronted. As viewed by the violent orthodoxy of Paul, the more liberal theologians, led at that time by Contarini and Pole, were but little better than heretics. This prejudice against Pole and his work, which Paul was induced to stifle for a moment, manifested itself in no uncertain revoked his terms in the summer of 1557, when he revoked his legatine legatine commission commission,2 against the protest of both queen and council, the moment that Philip succeeded in dragging England into war with the pope's ally of France. Mary, with something of the Tudor spirit, resisted the attempt to force a new legatine upon her, while Paul went so far as to subject Pole to a formal accusation at Rome for heresy.3 To the sorrow thus brought upon the queen by the hostility of the one power for which she had sacrificed everything was added the growing consciousness that the very means that she had so zealously employed to drive the nation back to its spiritual allegiance had not only failed of their purpose, but had converted the broad popularity with which she had ascended the throne into a detestation at once deep and universal. At enmity with the pope, forsaken by Philip, and hated by the nation, the childless queen, who had struggled in vain to make her husband her successor, was doomed to see, as she sank to the grave, the nation the tide of popular enthusiasm rising around Elizabeth, whose right to the throne every parliament had protected against her in the summer of 1557; Pole ac cused at Rome of heresy ; loyalty of to Elizabeth; sumed the title of King of Ireland, 7th of June. The ambassadors were then received on the 23d. 1 Commons Journal, 2 & 3 Phil. & Mar. See Froude, vol. v. p. 566. 2 Burnet, vol. i. p. 546, and Collec tanea; Strype, Mem. of the Reformation, vol. vi. p. 476. 8 Poli. Ep., vol. v. pp. 31-36; Lingard, vol. v. pp. 515-518. |