Heresy, Law and the State: Forfeiture in Late Medieval and Early Modern England

Abstract

As a punishment for heresy, forfeiture of property had originated in Roman law, was decreed by canon law, and applied across late medieval Europe. English ecclesiastical and secular legislation of the early fifteenth century formally adopted confiscation in response to the threat of Lollardy. Prompted by Oldcastle’s rising, in 1414 an Act of Parliament ordered that heretics should henceforth suffer the penalty of felony forfeiture. This identification of heresy with criminality justified greater lay involvement in the suppression of religious dissent. Because heresy was designated as a type of felony, the Crown claimed offenders’ personal possessions and lords their real property; the Church had no right to heretics’ estates. Although the Act provided the common-law basis for forfeiture, the penalty was imposed in other circumstances that paralleled practice outside England. Notwithstanding the Richard Hunne affair, forfeiture for heresy generated little controversy during the break with Rome. Legislation in the 1530s, in fact, extended the use of forfeiture as a punishment for religious dissent. The Act of 1414 was repealed under Edward VI, revived under Mary I, and again repealed under Elizabeth I. Following this second repeal in 1559, forfeiture lapsed as a penalty for heresy. The association between heresy and crime was thus loosened.

Heresy and Forfeiture in Marian England

“…In England, forfeiture was administered by the crown, and neither concerned nor profited the church. 51 In the pre-Reformation period, excommunication had not routinely resulted in forfeiture, but ratherif the offender remained defiantto arrest, through signification by the bishop to chancery and then the sending of a writ de excommunicato capiendo to the sheriff. 52 An instance of forfeiture on grounds of excommunication for heresy has, however, been identified, when in 1555 or 1556 the sheriff of Surrey and Sussex, William Saunders, seized goods belonging to John Smith of Dallingridge and unnamed others.…”