If the fervant kills his mistress or his master's wife, this is petit treafon within this act. 19 H. 6. 47. Plowd. Com. 86. b. Co. P. C. 20. 12 A. 30.

If a fervant, being gone from his master, kills him upon a grudge, that he conceived against his mafter, while he was in his fervice, which he attempted while his fervant, but was difappointed, it is petit treafon. 33 Aff. 7. Plowd. Com. 260. a. Co. P. C. 20.

If a child live with his father as a fervant, as if he receive wages from him, or meat and drink for his fervice, or be bound apprentice to him, and kills his father or mother, this is petit treafon at this day. (f)

But if he receives no wages, nor meat and drink for his service, or be not bound apprentice to him, but only is his fon and not his fervant, and kills his father, this was petit treafon at common law. 21 E. 3. 17. b. per Thorp (g); but the better opinion is, that it is not petit treafon at this day, because this statute of 25 E 3. fhall not in this cafe be extended by equity: quod vide Co. P. C. 20. Lambart Juftic. 248. Crompt 19. b.

II. The wife killing her husband.

If the hufband kill the wife it is murder, not petit treafon. [381]

because there is fubjection due from the wife to the husband, but not è converso.

If the wife be divorced from the husband caufâ adulterii vel fævitia, fhe is yet a wife within this law, because this diffolves not the vinculum matrimonii by our law, for they may cohabit again, but otherwise it is, if they be divorced caufâ confanguinitatis or præcontractûs, for then the vinculum is diffolved, they are no more hufband and wife.

If A. be married to B. and during that intermarriage A. marries C. tho C. be, as to fome purposes, a wife de facto, yet she is not a wife within this law, for the fecond marriage was merely void, tho perchance she may, upon circumstances, be a fervant within the former claufe, if the cohabit with A. and he finds her neceffaries for her fubfiftence; tamen quære.

III. The clergyman killing his prelate, &c.

If a clergyman living and beneficed in the diocefe of A. kills the bishop of that diocefe, it is petit treafon; but if he kills the bishop of the diocese of B. it is only murder.

should be read maistre, (bis master) for mre being abreviated, (as perhaps at was in the MS. of the year books) may be read either way, the the laft feems the most probable.

If a clergyman hath a benefice in the diocese of A. and after, by dispensation takes a benefice in the diocese of B. if he kills the bishop of one diocefe or the other, it is petit treason, for he owes and fwears upon his inftitution canonical obedience to the bishop of each diocese.

If a clergyman beneficed in the diocese of A. within the province of C. kills his metropolitan, it feems it is petit treason, tho he be not his immediate fuperior.

If a clergyman be ordained by the bishop of A. in ordinem diaconi, five prefbyteri fine titulo, yet it seems if he kills the bishop it is petit treafon, for he profeffeth canonical obedience upon his ordination.

Concerning proceedings in petit treasons.

In high treafon all are principals, but in petit treason there are principals and acceffaries, as well before, as after.

If the principal be only murder, as being committed by a stranger, the acceffary cannot be petit treason, tho fhe be a wife or fervant. Dy. 332. Brown's cafe ubi fupra.

But if the principal be petit treafon, as being committed by

[382] a wife upon her husband, or by a fervant upon his master

or mistress, if the acceffary be of the fame relation, viz. a fervant or wife, the judgment fhall be given against the acceffary, as in petit treafon; but if the acceffary, whether before or after, be a stranger, tho fuch stranger be an acceffary to petit treason, yet the judgment thall be as in a cafe of felony against the acceffary, viz. quod suspendatur, for tho he be an acceffary to petit treason, which is the principal, yet fuch acceffary being a stranger is not, nor can be guilty of petit treafon, because a stranger to the party killed, and neither wife nor fervant.

At common law, and by the ftatute of 25 E. 3. cap. 4. clergy was allowable in cafe of petit treason, but not in cafe of high treafon; but now by the statute of 23 H. 8. cap. 1. 1 E. 6. cap. 12. clergy is excluded from petit treafon, as well as murder, and in the fame kind.

If a perfon arraigned of high treason ftands wilfully mute, he shall be convicted as hath been formerly fhewn; but if arraigned of petit treason, he stand mute, he shall have judgment of (*) peine fort & dure. Crompt. 19. b. Co. P. C. 217.

The judgment of a woman convict of petit treafon is to be burnt (h), but (by Stamf. P. C. fol. 182. b.) in high treason to be drawn

(*) [Peine fort & dure] but now see the Stat. 12. Geo. 3. cb. 20. as to a perfon, arraigned on any indictment, standing mute. And 3 Burn. Edit. 1776, p. 211.

(b) The judgment of a woman convict of petit treafon (or in cafe of coin) is all one as in high treafon, viz. to be drawn and burnt. Co. P.C.p.211, and fo is the conftant practice.

and

and burnt, unless it be in case of coin, and then only to be burnt, as in case of petit treason.

But the judgment against a man convict of petit treason is to be drawn and hanged, trahatur & fufpendatur per collum.

Stamford in P. C. 182. tells us, that the execution of drawing is to be upon a hurdle, but 33 A. 7. Shard justice commanded, that nothing fhould be brought, whereupon he should be drawn, mes que fans cley ou autre chofe a defouth lui foit tray de chivaux hors de la fale, ou il avoit judgement, tanque a les furc, &c. but that severity is difufed: he is in fuch cafes drawn upon a hurdle to the place of execution.

And thus far touching petit treafon.

4 Blackf. Com. ch. 6. p. 92. ch. xiv. p. 20. 203, 204. Fofter. 337, 107, 324, 336. ■ Hawk, P. C. ch. 32. 4 Burn. Edit. 1776. p. 301.

Concerning herefy and apostacy, and the punishment thereof.

NDER the general name of herefy there hath been in ordinary

UNDE

speech comprehended three forts of crimes: 1. Apoftacy, when a christian did apoftatize to Paganism or to Judaism, and the punishment hereof, as well by the law of this kingdom, as by the imperial laws, seems to have been by death, namely burning. Bract. Lib. III. de coronâ, cap. 9. (a).. by the imperial law he was subject to loss of goods, Cod. de apoftatis, tit. 7. lege 1. but it appears not, whether he were to fuffer death, Ibid. l. 6. unless he folicited others to apoftacy (b). 2. Witchcraft, Sortilegium was by the antient laws of England of ecclefiaftical cognizance, and upon conviction thereof without abjuration, or relapfe after abjuration, was punishable with death by writ de hæretico comburendo, vide Co. P. C. cap. 6. & libros ibi, Extr de hæreticis, cap. 8. §. 5. n. 6. 3. Formal herefy; the old popish canonifts define an heretic to be fuch, qui male fentit vel docet de fide, de corpore Chrifti, de baptifmate, peccatorum confeffione, matrimonio, vel aliis facramentis ecclefiæ, & generaliter, qui de aliquo prædictorum vel de articulis fidei aliter prædicat, fentit vel doceat, quam docet fanita (a) p. 123. b: (b) Then it was capital, Lib. I. Cod. tit. 7. 1. 5.

mater

mater ecclefia; and whereas the antient councils and imperial conftitutions grounded thereupon kept the bufinefs of herefy within certain bounds and defcriptions, as the Manichees, Neftorians, Eutychians, &c. quod vide in Codice, Lib. I. tit. 5. de hæreticis, l. 5. in the edict of Theodofius and Valentinian; the papal canonifts have by ample and general terms extended heresy so far, and left fo much in the difcretion of the ordinary to determine it, that there is fcarce any the fmalleft deviation from them, but it may be reduced to herefy according to the great generality, latitude, and extent of their definitions and

[384] descriptions, whereof fee the glofs of Lindwood in titulo de Hæreticis, cap. 1. Reverendiffimæ ad verbum declarentur: the definition of Groftead, tho somewhat general, is much more reasonable as we have it given by Mr. Fox, Acts & Mon. part. 1. p. 420. Eft fententia humano fenfu electa, palàm docta, pertinaciter defenfa; but of this more hereafter.

In this business of herefy, and the punishment thereof, I fhall, as near as I can, use this method: 1. I will confider in general who is the judge of herefy according to the common and imperial law. 2. Who shall be said an heretic according to thofe laws. 3. What the punishment of an heretic is according to those laws: then I shall confider more specially, viz. 1. What was the method of the conviction of herefy according to the antient law used in England before the time of Richard II. and Henry IV. And 2. What was the usual punishment of herefy here in England before the time of Richard II. and Henry IV. 3. I fhall give an account touching the proceeding against heretics from the beginning of Richard II. to the twenty-fifth year of king Henry VIII. 4. What is the method of proceeding, and how the law touching herefy, heretics, and their punishment from 25 H. 8. until the first year of queen Elizabeth. 5. How the law ftood from 1 Eliz. to this day touching this matter.

I. According to the common and imperial law, and generally by other laws in kingdoms and states, where the canon law obtained, the ecclefiaftical judge was the judge of herefies, and hereby they obtained a large jurifdiction touching it, fo that there was scarce any thing, wherein a man diffented from the doctrine or practice of the Roman church, but they took the liberty to determine heretical, qui a recto tramite, & judicio ecclefiæ catholicæ detectus fuerit deviare, & is qui dubitat de fide catholicâ, yea even, qui defpicit & negligit fervare ea, que Romana ecclefia ftatuit vel fervare decreverat: vide Lindwood

de

de hæreticis in cap. Reverendiffimæ ad verbum declarentur, which left and exceffive arbitrary latitude in the ecclefiaftical judge, and a great fervitude and uncertainty upon men fubject to their cenfures: the ecclefiaftical judge was either extraordinary, viz. certain in

quifitors thereunto deputed by the pope, or ordinary, which [385]

was the bishop of the diocefe, as appears by Lindwood de hæreticis, cap. finaliter verb. ordinarius in glossa; (*) only for the more folemnity of the business of degradation, which accompanied the fentence of herefy upon one in orders before the offender was left to the fecular power, there were fix, but afterwards three bishops to be prefent in degradation à facris ordinibus, viz. the epifcopal, Prefbyteratus, Diaconatus & fubdiaconatus, but in minoribus ordinibus there was only required the bishop and his chapter, canonici five clerici, 6 decretal, cap. 2. afterward the bufinefs of degradation was reduced to one bishop, viz. the ordinary of the place, fo far at least as the fame refpected the ordo Prefbyteratus and inferior orders.

But I do not find, that by the canon or civil law the declaratory fentence of herefy was neceffary in a provincial fynod, tho in great cafes, especially where a prieft was to be degraded, it was most commonly done in a provincial fynod, partly for the greater folemnity of the business, and partly because in fuch fynods more bishops and others of the clergy were prefent; but how the ufe was in England we fhall hereafter fee.

II. As to the fecond, touching heretics and their difcriminations according to the canon law, they may be diftinguished into three ranks: 1. Simplex hæreticus. 2. Hæreticus contumax. 3. Hæreticus relapfus.

1. A fimple heretic was fuch, as held an heretical opinion, but being convened before the ordinary, and the opinion being fubftantially declared heretical, and the party convicted thereof, declares his penitence and abjures his opinion, in this cafe he was dismissed without farther punishment, and this abjuration might be required by the ordinary, and was of two kinds, viz. a special abjuration, whereby he abjured that fingle heretical opinion, for which he was condemned, or a general abjuration, whereby he renounced all heretical opinions vide Lindwood de Hæreticis, cap. Reverendiffimæ verb. nifi refipifcant & abjuraverint in fo ma ecciefiæ confueta: and this abjuration might be required not only of thoie, that were detected [386]

(*) See alfo Lindaocoa de kærancis, cap, item quia verb, ordinarii,

and