Decriminalizing Heresy

Guest post by Hannah Wygiera, 31 August 2022.

The boundaries between orthodoxy and heterodoxy changed repeatedly throughout the English Reformation. Despite changes to what constituted a heretical belief, what remained constant was the ability to punish heresy as a crime. However, in 1677 members of Parliament, motivated by anti-Catholic fears, abolished the centuries-old punishment for heresy: death by burning.

The execution of William Sawtrey, 1401, from John Foxe’s ‘Book of Martyrs

Heresy had been a long-standing religious concern in England and in 1401, it also became a criminal offence with the creation of the writ de Heretico comburendo.[1]This writ looked back at the precedents for burning people deemed heretics and made it the punishment for heresy at common law. The writ lasted until 1677, when Parliament abolished it and effectively decriminalized heresy. This was not an act of toleration. It was an act of self-preservation by members of Parliament who wanted to protect Protestantism in the face of a potential Catholic threat.

A plaque in Lichfield market place reading: 'Edward Wightman of Burton-on-Trent was burnt at the state in this market place for heresy, 11th April 1612, being the last person in England so to die.'
Others would be burnt at the stake after Wightman, but not for heresy.

The last English burning for heresy happened in 1612, when Edward Wightman died at the stake after refusing to recant his heretical beliefs.[2] While the Elizabethan Act of Supremacy had repealed earlier heresy statutes, authorities decided that they could still use the common law writ (despite some disagreement, not least from Sir Edward Coke).[3] Because the writ de Heretico comburendo remained in common law, no one for decades thereafter could be confident that Wightman’s burning for heresy would be the last. Following his execution, heresy remained a concern for both the English Church and state but the political and religious turmoil of the mid-seventeenth century magnified the uncertainty and disagreement over what constituted a heretical belief. Authorities became less willing to define heretical beliefs and to punish people as heretics. But up until the sentence of death for heresy was abolished in 1677, the possibility of its use remained.[4]

The Protestant Parliament of 1677 also faced another concern, with many members increasingly worried about the prospect of a Catholic monarch. Many Protestants had feared ‘papists’ – a  derogatory term for Catholics who were loyal to the papacy politically as well as religiously – since the reign of Mary I (r.1553-1558). The legacy of the burnings of some 280 men and women for their beliefs continued to live on in the memories of later Protestants.[5] The possibility of a new ruler like ‘Bloody Mary’ caused some people to fear for their lives and liberties.

An image depicting the burning of John Rogers for heresy, from John Foxe's Book of Martyrs.
From John Foxe’s ‘Book of Martyrs’

This fear became even more potent when it became clear that Charles II’s brother and likely successor, James, was Catholic. Members of Parliament believed that their faith, their positions, and perhaps their lives, were at risk should James become king. While members of Parliament would try to exclude James from the line of succession, they also pursued other ways to protect themselves. In the 1677 Parliament they discussed bills to prevent the growth of popery and to counter the dangers of popish recusants. It was in this context that the old writ de Heretico cumburendo, unused since 1612, was brought to the table.

In support of abolishing the writ, an anonymous author published a letter to members of Parliament in 1675 that conveys some of the thinking that influenced the 1677 Parliamentary abolition. The letter argued that Christians should promote love and peace.[6] Punishing religious offences with death did not promote these virtues. Abolishing the writ would also make English subjects feel protected. Most of all, abolishing the writ would make Protestants safe from a potential ‘papist’ on the throne. Christian virtues were important, but personal safety was far more convincing. Additionally, the writer of this letter maintained that papists only used the writ against Protestants and never against their fellow papists, while Protestants used it against other Protestants. Therefore, the writ’s continuation was a “standing reproach” to the religion they professed and a “Snare among our Law.”[7]

The letter writer was not alone in wanting the writ abolished. On 16 March 1677, Sir Thomas Meres proposed to the House of Commons a bill to do away with the writ.[8] The bill passed about a month later, on 13 April. The Act to abolish the writ de Heretico comburendo stated that for heresy, “all punishment by death in pursuance of any Ecclesiastical censure be from henceforth utterly taken away and abolished.”[9] Worried that the Church would not be able to punish heresy as a religious offence, the bishops in Parliament asked for a proviso to clarify their authority. The proviso allowed bishops or ecclesiastical court judges to punish religious offences such as heresy, blasphemy, or atheism, according to ecclesiastical laws.[10] Sanctions such as excommunication were still allowed, but punishments could not extend to death. By abolishing the common law writ and with it, the punishment of death – particularly the highly charged punishment of death by burning – heresy was effectively decriminalized, treated only as a religious offence, not as a crime. Protestant members of Parliament were safe from burning at the stake for their religious beliefs, whether by fellow Protestants or by Catholics.

The abolition of the writ was not an expression of ‘toleration’ so much as another manifestation of concerns about religious difference. In addition to the anti-Catholic bills debated alongside the abolition Act, other measures passed around the same time to counter religious threats, including the notorious Test Acts. The first Test Act, passed in 1673, required all civil officers and military leaders to take oaths of supremacy and allegiance, deny the belief in transubstantiation, and to take the Eucharist in an Anglican church within three months.[11] The second Test Act passed in 1678 and kept Catholics out of Parliament.[12] Other Acts sought to repress forms of Protestant dissent through fines, imprisonment, and other sanctions. The civil power still sought to police the boundaries of orthodoxy, just not with the charge of ‘heresy’ or threat of burning at the stake.

How and why did an offence once seen as the worst of all crimes become effectively decriminalized? Abolishing the writ likely gave many Protestant members of Parliament a sense of security. The bloodiness associated with the heresy executions under a Catholic monarch would not be associated with the Protestant Parliament of 1677. In their eyes, members of this Parliament did not see death as the answer to stopping different religious beliefs. Defences of liberty of conscience circulated at this time (not least those of Thomas Hobbes), and some members of Parliament had long wanted to restrain ecclesiastical jurisdiction. However, the timing and context of the abolition Act, in the midst of anti-Catholic actions, suggest that at its root was the desire to not be added to the lengthy list of men and women who died for their religious beliefs. Toleration was not the goal of the 1677 Parliament. Even so, its members ended the history of heresy as a crime punishable with death.


Hannah Wygiera is a Master’s student in History at the University of Calgary, with a 2021 BA (Hons.) from Dalhousie University.


All images are from Wikimedia Commons, as linked. The cover image depicts the execution of Archbishop Cranmer for heresy and comes from the 1887 edition of John Foxe’s Acts and Monuments (aka, ‘Book of Martyrs’), illustrated by Joseph Martin Kronheim, via Wikimedia Commons.

Notes:

[1] See esp. Ian Forrest, The Detection of Heresy in Late Medieval England (Oxford: Clarendon Press, 2005) and Peter McNiven, Heresy and Politics in the Reign of Henry IV: the Burning of John Badby (Woodbridge: Boydell Press, 1987).

[2] For more on Wightman’s beliefs and death, see Ian Atherton and David Como, “The Burning of Edward Wightman: Puritanism, Prelacy and the Politics of Heresy in Early Modern England,” The English Historical Review 120, no. 489 (2005): 1215-1250.

[3] In addition to Como and Atherton, op. cit., see also Paul Cavill, “Heresy, Law and the State: Forfeiture in Late Medieval and Early Modern England,” English Historical Review 129, no. 537 (2014): 270-295.

[4] For the continued fears, see, e.g., Jeffrey R. Collins, “Thomas Hobbes, Heresy, and the Theological Project of Leviathan,” Hobbes Studies 26 (2013): 6-33 and Stephen D. Snobelen, “Isaac Newton, Heresy Laws and the Persecution of Religious Dissent,” Enlightenment and Dissent 15 (2009): 204-259.

[5] Eamon Duffy, Fires of Faith: Catholic England Under Mary Tudor (New Haven; London: Yale University Press, 2009), 7.

[6] Anonymous, A Letter to a Member of Parliament with Two Discourses Enclosed in it: I. the One Shewing the Reason Why a Law should Pass to Punish Adultery with Death, II. the Other Shewing the Reasons Why the Writ, De Haeretico Comburendo, should be Abolish’d (London, 1675), 7.

[7] Ibid., 7-8.

[8] Journal of the House of Commons, 9:401. On the passage of the Act, see also Andrew Marvell, The Poems and Letters of Andrew Marvell, Volume II: Letters, ed. H. M. Margoliouth (Oxford: Clarendon Press, 1971), 192-193 and J.A.I. Champion, “An Historical Narration Concerning Heresie: Thomas Hobbes, Thomas Barlow, and the Restoration Debate over ‘Heresy’,” in Heresy, Literature and Politics in Early Modern English Culture, ed. John Marshall and David Loewenstein (Cambridge: Cambridge University Press, 2006), 222-223.

[9] 29 Car. II c. 9.

[10] Ibid.

[11] Snobelen, “Isaac Newton, Heresy Laws and the Persecution of Religious Dissent,” 222.

[12] Ibid.

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