enactments against heresy which had been in existence before Henry VIII's time were revived, but not similar statutes made in his reign.

เ

Elizabeth in 1 Eliz. (1558/9 c 1) repealed the act of Mary just mentioned and the three older acts specified therein.29 The idea of heresy is not however thereby abandoned; on the contrary, it is expressly defined, essentially as being whatever is in contradiction to the authority of the canonical Scriptures' or 'the first four general councils.' 30 Moreover, arrest by the civil powers of those excommunicated by the ecclesiastical authorities for heresy or erroneous doctrines still remained. In spite of the fact that the heresy laws proper were repealed and that no act of parliament imposed such a penalty, in 1575 there were two cases, and in 1579 one case, of persons burned to death for the anabaptist heresy.3+

33

From the reign of James I again, we have accounts of two cases (1612) in which heretics were burned. The old procedure was followed in them: the bishop's court (the bishop with assessors) pronounced sentence, the king directed his chancellor to send the writ de haeretico comburendo to the secular executive officer, and the latter carried it into effect. The right of the ecclesiastical courts to inflict fines and imprisonment for heresy was generally recognized even at this time.

The still dangerous weapon was not finally wrested from the

29 An Acte restoring to the Crowne thauncyent Jurisdiction over the State Ecclesiasticall and Spirituall, and abolyshing all Forreine Power repugnaunt to the same; s 6.

3088 Correccion of Heresies belongs also to the royal prerogative; the power to exercise it can be conferred on commissioners (it is part of the high commission). s 20 enacts: The commissioners shall not in any wise have Aucthoritie or Power to order determine or adjudge anny Matter or Cause to bee Heresie but onelye suche as heretofore have been determined ordred or adjudged to bee Heresie by thaucthoritee of the Canonicall Scriptures, or by the first foure generall Councelles (cf. however art. 21 in appendix XI), or any of them, or by any other generall Councell wherin the same was declared Heresie by thexpresse and playne woordes of the sayd Canonicall Scriptures, or suche as hereafter shall bee ordredd judged or determined to bee Heresye by the Highe Courte of Parlyament of this Realme withe thassent of the Clergie in their Convocacion; 31 5 Eliz. (1562/3) c 23 s 7: in cases of Heresię of Religyon or Doctryne nowe receyved Englande. (More fully in § 61, note 19.)

or Errour in Matters in the Churche of

32 Compare also Coke, Reports XII, 56 ff. According to Coke, Reports XII, 93 four judges in 9 Jac. I gave an opinion that the issue of a writ de haeretico comburendo was still allowable (Coke held it not allowable. Compare, however, Coke Instit. III, 39 ff.), but that it was safer to effect the condemnation of the heretic through the high commission court.

33 Fuller, Church Hist. Ed. 1845, IV, 390. The order for the burning is in Rymer, Foedera 3rd Ed. VI pt. IV, 161. Wilkins, Conc. IV, 281.

34 Perry, Hist. of Engl. Church II, 315, note 3 c 19 § 3.

35 Fuller, Church Hist. Ed. 1845, V, 422 ff. Gardiner, History of England from the Accession of James I, II, 43. The king's orders to burn are in Somers, Tracts II, 400, 403. In a third case there was also a condemnation; the king. however, merely caused the condemned to be thrown into prison, where he died. Fuller, l.c. 424.

ecclesiastical authorities even by the first revolution. The act abolishing the high commission court, 16 sq. Car. I (1640 ff.) c 11, forbade the infliction of fine, imprisonment or corporal punishment in any matter belonging to ecclesiastical cognizance. During the ascendency of the presbyterians in the English house a parliamentary ordinance, dated May the 2nd, 1648, threatened stubborn. opposition to certain doctrines with heavy penalties to be imposed by secular judges." But on the restoration a return was made to the previous state of the law, in that 13 Car. II (1661) st. 1 c 12 repealed the above mentioned provision of 16 Car. I c 11, and further declared that nothing in that act took away the ordinary powers of the bishops and their officers, but that these powers still continued.38

37

Some years later 29 Car. II (1677) c 9 abolished the punishment of death as a consequence of condemnation by any ecclesiastical authority. But the power to punish heresy and similar offences by purely ecclesiastical penalties was neither to be abridged nor taken away.39

36 Cf. § 7, note 36.

37 Cf. ordinance of the long parliament, dated 2nd May, 1648, For the punishing of Blasphemies and Heresies, with the several penalties therein expressed. Stubborn maintenance and publication of opinions against certain specified doctrines [principally those of the triune God, the resurrection, the last judgment, and that the Bible is the Word of God] are to be punished, if abjuration is refused, as felony with death without benefit of clergy. In case of abjuration, the abjurer is to remain in prison until he gives surety, himself and two others, that he will not in future maintain or publish such opinions. Relapse is to be punished as felony with death without benefit of clergy. In case of publication or stubborn maintenance of certain other heresies [viz. that all are saved; worship of images; purgatory; that no one is obliged to believe more than he can comprehend; against the ten commandments; against the sacramental character of baptism and the communion; against infant baptism; in favour of rebaptism; against the permissibility of the English (then presbyterian) church service and against the character of her clergy as true clergy; against the government of the church by presbyteries; against the power of the state (in ecclesiastical matters) as determined by law in England; against taking up arms in a righteous cause for public defence], the offender is to be called on to revoke before the congregation. If he refuses, imprisonment until sureties given, as above.

Ordinance of rump, 9th August, 1650, Against several Atheistical, Blasphemous and Execrable Opinions, derogatory to the honor of God, and destructive to human society. This ordinance is directed rather against immoral than irreligious doctrines.

38 Compare § 7, note 69.

39 An Act for takeing away the Writt De Heretico cumburendo.

s 1: Bee it enacted That the Writt commonly called Breve de Heretico comburendo with all Processe and Proceedings thereupon in order to the executeing such Writt or following or depending thereupon and all punishment by death in pursuance of any Ecclesiasticall Censures be from henceforth utterly taken away and abolished.

$2: Provided alwayes That nothing in this Act shall extend or be construed to take away or abridge the Jurisdiction of Protestant Arch-Bishops or Bishops or any other Judges of any Ecclesiasticall Courts in cases of Atheisme Blasphemy Heresie or Schisme and other damnable Doctrines and Opinions but that they may proceede to punish the same according to his Majestyes Ecclesiasticall Lawes by Excommunication Deprivation Degradation and other

Since the end of the seventeenth century the competence of the ecclesiastical courts to inflict penalties for non-submission to the doctrines of the established church has gradually been still further restricted, without, however, being entirely destroyed. At present ecclesiastical process against laymen is almost wholly obsolete, both generally and for heresy in particular; but against the clergy for disciplinary purposes appeal is still sometimes made to ecclesiastical tribunals.

Ecclesiasticall Censures not extending to death in such sort and noe other as they might have done before the makeing of this Act.

401 Gul. & Mar. (1688) c 18 s 3 first declared ecclesiastical prosecution for non-conformity inadmissible as against protestant dissenters, provided they observed certain forms and ceremonies.

41 For the proceedings of the convocations against heretical doctrines in the eighteenth and nineteenth centuries cf. § 54, near notes 62-5.-On 9 Gul. III (1697/8) c 35 cf. § 61, note 23.

IV. The Clergy and their Orders.

1.

§ 20. GENERAL."

2

SINCE the reformation there have been in England only the three orders of deacons, priests and bishops. The members of these orders form the spirituality. The episcopal office is, according to the prevailing opinion in the church of England, a perfectly distinct one, not merely special dignity combined with the priestly office.3 The five lower orders of the Roman catholic church, ostiarius, lector, exorcista, acolutha and subdiaconus, apparently fell into disuse with the introduction of the new prayer-books and form of ordination in Edward VI's reign. But the office of reader was maintained for a considerable time and has, indeed, in recent times been revived. It is said to be a survival of the Roman catholic order of lector;

For the Anglo-Saxon time cf. Phillips, Angelsächsische Rechtsgeschichte § 61. Introduction to prayer-book form of ordination: It is evident unto all men diligently reading the holy Scripture and ancient Authors, that from the Apostles' time there have been these Orders of Ministers in Christ's Church: Bishops, Priests and Deacons. And therefore to the intent that these Orders may be continued and reverently used and esteemed in the Church of England; no man shall be accounted or taken to be a lawful Bishop, Priest, or Deacon in the Church of England except he be called, tried, examined and admitted thereunto, according to the Form hereafter following, or hath had formerly Episcopal Consecration or Ordination.

3 For the canon law see Richter, Kirchenrecht § 103, note 11. In England it was disputed, e.g. by Aelfric in a letter to bishop Wulfsin (the so-called canones Aelfrici, 992-1001, printed in Thorpe, Ancient Laws etc. 441 ff.) that a separate episcopal order was to be distinguished. c 17: Nis na mare betwyx

maesse-preoste and bisceop, buton paet se bisceop bið gesett to hadigenne preos tas, and to bisceopgenne cild, and to halgyenne cyrcan, and to gymenne Godes gerihta, forban be hit waere to maenigfeald, gif aelc maesse-preost swa dyde, and hy habbað aenne hád, þeah se oðer sý wurðor. (“There is no difference betwixt a mass-priest and a bishop, save that the bishop is appointed for the ordaining of priests, and confirming of children, and hallowing of churches, and to take care of God's dues; for it would be too multifarious if every masspriest so did: but they have one order, though the latter have precedence.") The same doctrine was afterwards taught by the lollards and the presbyterians. The same view obtains in The Institution of a Christian Man, composed by a committee of bishops and approved by the king (1537). Perry, Hist. of Eng. Church II, 152 c 9 § 19.

a Blunt, The Book of Church Law, Book III c 1.-Phillimore, Eccles. Law 108 ff.

but at present there is no order of readers, as distinct from the office, and the reader is a layman. Similarly there is the office of deaconesses, who likewise are not in ecclesiastical orders."

Spiritual rank is attained by receiving one of the three orders; it attaches to the holder for life irrespective of his filling any particular office. It is lost by degradation; or, since the Clerical Disabilities Act, 1870 (33 & 34 Vict. c 91), and in the case of priests and deacons, may be voluntarily relinquished if certain formalities are observed.

6

Orders are received by solemn conferment. The conferment is entitled 'ordination' or 'consecration,' both words designating the same act, though usually, in the language of to-day, the former is applied to the dedication of priests and deacons, the latter to that of bishops. The person who confers the orders must himself be in bishop's orders. At the consecration of a bishop there must further be two others assisting. Similarly at the ordination of deacons and priests certain persons besides the ordaining bishop are to be present or to co-operate." There is no sacrament of orders.10

8

As spiritual rank in general, so also is the possession of orders of every kind independent of the filling of a particular office; nor are orders lost by the surrender of office. There is sometimes in practice a difference between bishop's orders and priest's or deacon's orders in that the former, except in unusual circumstances, are only conferred after the bestowal of a particular office, and indeed are the last step, as it were, in the bestowal, whilst the latter, as a rule, precede it. Thus even in respect of their conferment priest's and deacon's orders exhibit their independence of the office; bishop's,

4 On the office cf reader cf. § 46.

5 On deaconesses cf. § 47.

"In case of such relinquishment, the right to pension is lost (34 & 35 Vict. c 44 s 15, Incumbents Resignation Act, 1871).-Compare also the prohibition of such relinquishment in canon 76 of 1604 (appendix XII).

7 Thus in the prayer-book The form of ordaining or consecrating of an archbishop or bishop.

See in the prayer-book form of consecrating; cf. also 25 Hen. VIII (1533/4) c 20 ss 3, 4 (appendix X), 26 Hen. VIII (1534) c 14 s 5 (§ 39, note 4). On the canon law see Richter, Kirchenrecht § 184, note 23. For England Gregory I had answered in 601 upon the inquiry of Augustine (Haddan and Stubbs, Counc. III, 21): Et quidem in Anglorum ecclesia, in qua adhuc solus tu Episcopus inveniris, ordinare Episcopum non aliter nisi sine Episcopis potes

Cum

fuerint Episcopi in propinquis sibi locis ordinati, per omnia Episcoporum ordinatio sine adgregatis tribus vel quatuor Episcopis fieri non debet. -For Scotland see § 10, note 6a. According to Haddan and Stubbs I, 155, among the ancient Britons and Irish consecration by one bishop was the usage; on the other hand see Loofs, Antiquae Britonum Scotorumque ecclesiae quales fuerint mores p. 25. For the East Indies consecration by only two bishops is allowed by 3 & 4 Gul. IV (1833) c 85 s 19.

9

The ordinal prescribes in the cases of all three orders that one bishop should speak the words and lay hands on the ordained. At the ordination of a priest, the priests present; at that of a bishop, the bishops present, are also to lay on hands. Canons 31 and 35 of 1604 (appendix XII) direct the presence, both at the ordination of priests and that of deacons, of certain persons besides the bishop.

10 See article 25 (appendix XI).