The English Reformation is the product of converging circumstances. The early-sixteenth century ‘murder’ case of Richard Hunne illuminates the signs of tension between secular justice and church courts that existed before the Reformation. The legal events around Hunne occupied the participants from 1511 to 1515. Richard Hunne was a merchant living in London. His son Stephen Hunne died in infancy in Whitechapel, a district of London, in March 1511. His son received Christian burial and the Church officials, as was typical, claimed a ‘mortuary fee’ for officiating at the little boy’s funeral. The local priest claimed his fee not in money but in goods, ordering Hunne to hand over the dead child’s best gown as his mortuary fee. Giving the ‘best’ item in a testator’s possession—such as their best cow—was typical.  Here however is where events become mysterious, tragic, and legally complex. Hunne refused to pay the mortuary fee in kind (the gown) and, for this non-payment, the rector or priest of St Mary Matfelon in Whitechapel sued him in 1512.  The Church excommunicated Hunne after he denied the charges against him. 

Hunne retaliated with legal action of his own, suing the rector for slander in the King’s Bench. In this case, the alleged slander was that the parish clergy had publicly called him ‘accursed’. In addition, Hunne sued for a writ of praemunire against all involved in the ecclesiastical case against him.  As such, the legal machinery of the Church courts and the common law courts was set in motion. 

These events show a microcosm of legal actions in and between Church courts and common law courts. The defendants—the rector and parish clergy—whom Hunne sued for slander argued in their defence that the King’s Bench did not have appropriate jurisdiction. Hunne demurred, claiming in this objection that the defence was not good in law. The Church authorities arrested Hunne and imprisoned him in Lollard’s Tower, a prison in the precincts of St Paul’s Cathedral. After this legal activity in both ecclesiastical and common law courts, there came a sudden and terminal conclusion: after two months’ imprisonment, Hunne suddenly died in custody and his body was found hanging from a rope in his cell in December 1514. 

A number of important points stand out for the student of legal history from this rather sinister series of events that ended with a corpse hanging in Lollard’s Tower. The cases themselves were long drawn out, involving multiple jurisdictions and a number of high-ranking participants, including the chancellor (or chief legal official) of the Bishop of London. The outcome was Hunne’s death. Had this case been an Agatha Christie murder mystery, the question would be: whodunit?

Church officials claimed Hunne had hanged himself. This was a suicide and, in Church dogma, suicide is a mortal sin. The Church officials burned Hunne’s corpse after subjecting it to a post mortem heresy trial. Secular officials however thought differently. As would be the identical procedure today, a coroner empanelled a coronial jury and investigated the case, including the locus in quo or the scene of the crime. The coroner’s report made number of sensible forensic points that still have their own solid logic today. When the coroner’s jury examined the corpse hanging in Lollards Tower, it soon became obvious that Hunne could not have killed himself:  

The noose round the neck was too small to accommodate the head; marks on the victim’s wrists showed that his hands had been tied; the serrations round the neck had been caused by some metal object and not by a silken belt; the body was clean (‘without any drivelling or splurging in any place of his body’) which was inconsistent with death by hanging; and the chair from which Hunne would have had to jump, was too precariously placed on the bed to allow anybody to stand on it.  

Consequently, the inquest accused the Bishop’s Chancellor and two officials of murder.

The case is of legal interest when looking at English legal history in the sixteenth century as the Reformation impacts legal actions and jurisdictions. King’s Bench challenged the Church’s jurisdiction through the slander action and praemunire that Hunne brought.  The Statute of Praemunire stated: ‘Any subject who shall draw out of the realm in plea whereof the cognizance pertaineth to the king’s court or which do sue in any other court to defeat or impeach the judgments given in the king’s court’.  This medieval law arose to protect proceedings taking place in the King’s courts from a challenge from another court or even another realm.  In other words, the writ pulled a case from the Church court into the common law court. Edward Coke cited this statute in his confrontations with other jurisdictions. 

When Hunne died, his slander and praemunire cases were incomplete. A litigant unhappy with the unfolding legal process could have gone up to the Court of Exchequer Chamber but Hunne’s cases came to a terminal end. They had however while they lasted questioned the ecclesiastical jurisdictions, raising points that are relevant and leading to the conflict of jurisdictions the next section of this Chapter will consider.  

Hunne’s complex and tragic legal processes reveal the litigants and jurisdictions in tension with each other. A final point about Hunne’s case is to consider how sinister these events were, with Hunne taken from his home, locked away, and meeting his death—in ways still unclear—late one night. Legal history presents to the modern law student not only the technicalities but also the human being caught in the machinery. 

James VI and I held to the belief he was on the throne by divine right. This fusion of the state with the will of God and the notion that there is a conjunction of the law and the supernatural may sit uncomfortably with lawyers and law students who expect that the law is a sober, rational, and fact-based body of knowledge and procedure. But the emergence of medieval and early modern law is the product of a world ‘resonating with magical forces’, as described by the historian Glyn Parry.  Traces of that magic remain today from the oaths sworn by witnesses to the number of twelve jurors — a supernaturally significant number. English law sought statutory ways to regulate the preternatural, or the devil’s works. 

The Bible demands ‘thou shalt not suffer a witch to live’ (Exodus 22:18). Elsewhere, the Bible contains references to devils, demons, possession, and necromancy. It clearly shows Jesus expelling demons in the story of Legion and the Gadarene Swine (Mark 5:1-20). Medieval law and theology elaborated a comprehensive demonological theory that identified the traits of witches and, importantly, their punishment. In Europe, the fullest and most thought-through work was the Malleus Maleficarum, written by the German clergymen Kramer and Sprenger in 1486. 

English law in due course turned witchcraft into a statutory offence. Witchcraft prosecutions were not action of an unruly mob. Seeing meaning in portents, prodigies, freaks, prophecy and providences, and accepting the reality of witchcraft, was in the domain of an educated elite including kings and lawyers. There were also high profile and socially elite people accused of sorcery and witchcraft, including the wealthy Irish woman Dame Alice Kyteler in 1324 and Eleanor Cobham, the Duchess of Gloucester in 1441.  Using magic became a felony under the Witchcraft Act 1542,  repealed in 1547. During the reign of Elizabeth I, the Witchcraft Act 1563 was passed reiterating the 1542 statute but with lesser penalties.  A wider context for this statute was an elite preoccupation with using magic and conjuration to kill Elizabeth I.  Harsher penalties came with the Witchcraft Act 1604,  by which time James VI and I was on the throne, and a second offence incurred the death penalty. Each of these had included necromancy in the range of the Act.  The most eminent legal minds became involved in cases of magical treason. Francis Bacon pithily noted that ‘Sir Edward Coke was now afoot’, busily investigating suspected use of magic against James I.  People died because of the Witchcraft Acts, especially the 1563 and 1604 Acts. Witchcraft accusations led to trials and executions of mostly female victims at St Osyth in Essex in 1582, at Warboys in East Anglia in 1593, at Pendle in Lancashire in 1612 and — especially from the notorious actions of the young ‘witch finder’ Matthew Hopkins — at Bury St Edmunds in 1645. Hopkins, who may have had some legal training, did not preside at the trials but his brutally effective methods of questioning accused witches, which included the ‘pricking’ of their bodies to look for a witch’s mark, led to a high number of executions.  Other cases were legal shambles and, as the historian Keith Thomas points out, even by the standards of the era, the proceedings were appalling distortions of due process. Accused witches appeared in courtrooms that were so disorderly they could not even hear the charges laid against them.

However, the legal history of English witchcraft is nuanced. Some judges believed in the possibility of witchcraft. Others flatly disbelieved in witchcraft, as did senior churchmen who exposed frauds.  One judge allegedly dismissed an accusation by pointing out it was not against any law to fly on a broomstick. Judges and magistrates also had misgivings about tests such as pricking or swimming a suspected witch.  When high-level jurisdictions such as the Privy Council became involved, they also tended to insist on a level of proof rather than relying on rumour. 

The English witchcraft statutes and trials are more than a curiosity in the history of the law. Beyond the fact the statutes were deadly, the trials are instances where the legal machinery of the age is seen not just in action but in conflict with each other, as seen already in this chapter with Coke and Bancroft. The writs of prohibition were means for common law judges to act against other jurisdictions including not only the High Commission but others such as the Council of the North.  The High Commission had its own powers. The overarching context was the tension between Bancroft and Coke over the powers of the Commission. But the Commission’s rigorous means of questioning could also be a decisive way to intervene in witchcraft trials. When a woman called Elizabeth Jackson was tried for witchcraft before Sir Edmund Anderson CJCP, Bancroft used the Commission, as well as energetic behind-the-scenes activity, to adduce evidence in her favour, and likewise the Commission was his instrument for subverting the claims by a self-described exorcist John Darrell to have performed a dispossession. In microcosm, witchcraft cases present a vision of the legal system of the period in action. 

As a final note, the law continues to have to deal with the supernatural. In 2000 the Queensland Parliament passed palmistry and fortune-telling laws in the Justice and Other (Miscellaneous Provisions) Act 2000 to repeal section 432 of Queensland’s Criminal Code 1899. However, as has been the trend since the eighteenth century, this law treats the preternatural as fraudulent. 

Edward Coke Selden Society Supreme Court Brisbane

History of witchcraft

Witchcraft statutes

Crime and the law

Case of prohibitions

Case of proclamations

Earl of Oxford’s case

Petition of Rights

Habeas Corpus Act

 

Michael Kirby, ‘The trial of King Charles I - defining moment for our constitutional liberties’, Anglo-Australasian Lawyers' Association London - Great Hall, Grays Inn Friday 22 January 1999, 16, available at https://www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyj_charle88.htm

The bloody reign of Mary I (1553–8), the St Bartholomew’s Day Massacre in France (1572), the attempted invasion of the Spanish Armada (1588), the Gunpowder Plot (1605), and the Irish rebellion (1641) combined to encourage a fear recurrent in the sixteenth and seventeenth centuries that Catholic domination of England was a real concern. 

During Mary I’s reign, Protestants endured widespread persecution. The Catholic Queen attempted to re-establish Catholicism as England’s official religion. The St Bartholomew’s Day Massacre (24 August 1572) saw French Protestants (Huguenots) massacred in Paris and surrounding provinces at the bidding of Catholics. Although it took place in France the violence against Protestants alarmed many English people and Huguenots subsequently settled in England. On 5 November 1605, a small group of English Catholics attempted to assassinate James VI and I and the entire English government by blowing up the House of Lords in the failed Gunpowder Plot. One of the plotters, Guy Fawkes, is immortalised not only by Gunpowder Day each year (‘Remember, remember, the fifth of November…’) but by the lead masked character in V for Vendetta, who in fact succeeds in detonating Parliament. 

The religious settlement of 1661–2 naturally provoked friction between Charles II and Parliament. Before accepting the throne, Charles II (in the Declaration of Breda) promised ‘a liberty to tender consciences; and that no man shall be disquieted, or called in question, for differences of opinion in matters of religion which do not disturb the peace of the kingdom’.  

Expectation, however, did not meet reality. The Restoration or Cavalier Parliament (1661–78) comprised royalists and conservative Anglicans, dogged in ensuring conformity with the Church of England. Between 1661–5, the Cavalier Parliament passed a series of anti-Puritan statutes collectively known as the Clarendon Code after Sir Edward Hyde, Earl of Clarendon (1609–74), the Lord Chancellor.  

That is not to say that Clarendon was in favour of persecuting Puritans, but members of the Cavalier Parliament were. They were keen to restore the Church of England to its former glory and to exact revenge on Puritans that had persecuted them in Cromwell’s government. The measures introduced by the Clarendon Code were retaliatory. It pigeonholed Puritans as ‘Dissenters’ or ‘Nonconformists’ separate from the Anglican majority. 

The first of these measures, the Corporation Act 1661,  required all municipal officers to receive Anglican communion at least once a year and to reject the Solemn League and Covenant (1643, a treaty with Scotland to unite the Church of Scotland and the Churches of England and Ireland under Presbyterian church government. The Sedition Act 1661 declared it unlawful). The Act had the effect of excluding non-conformists from public office. 

A second measure, the Uniformity Act 1662,  required ministers of religion to be ordained or re-ordained by a bishop of the Church of England. Ministers, lecturers and schoolmasters had to swear that they would repudiate the Covenant and not take up arms against the king. The Book of Common Prayer (1662) was required to be used for all church services; each minister had to give their ‘unfeigned assent and consent to all and everything contained and prescribed’ in it. Ministers were required to take an oath against the Solemn League and Covenant. Almost 1800 clergy were deprived of their livings—their positions as parish ministers—for refusing to comply with the Uniformity Act by 24 August 1662 (St Bartholomew’s Day—how very tasteless it was to choose a day strongly associated with religious persecution!).  The Uniformity Act created the modern Anglican church.  Before it, the Church of England had included Presbyterians and Puritans.  The Uniformity Act entrenched a church governed by bishops, using the Book of Common Prayer for its worship.       

The Quaker Act 1662, the first Conventicle Act 1664 and the Five Mile Act 1665 followed. The Quaker Act banned meetings of more than five persons outside the parish church and made it illegal for Quakers (officially the Religious Society of Friends, a Protestant community) to refuse to plead in court, as Quakers traditionally rejected swearing oaths. By means of fines or imprisonment, the first Conventicle Act 1664 prohibited unauthorised worship and meetings (‘conventicles’) of five people, who were not members of the same household. It had the ostensible purpose of preventing ‘seditious sectaries’, but its real aim was to prevent non-conformist ministers who had been ejected from the Church of England under Uniformity Act 1662 from establishing new congregations. The second Conventicle Act 1670 authorised the seizure of property from non-conformist ministers to pay fines. 

The Five Mile Act 1665, repealed in 1812, targeted non-conformist ministers who continued to assemble meetings or conventicles in violation of the first Conventicle Act 1664. The Act prohibited non-conformist ministers from coming within five miles of incorporated towns or the place of their former living. It also prohibited these ministers from teaching in schools unless they took an oath of non-resistance to the government of Church or State. 

In 1662 and 1672 (‘the Declaration of Indulgence’), Charles II issued declarations to ‘suspend’ the operation of penal laws ensuring Anglican conformity for the benefit of Catholics and non-conformists, but uproar and pressure from Parliament prompted the King to back down. Charles II withdrew the 1672 Declaration of Indulgence so that he would receive revenue from Parliament. Parliament passed the first Test Act in 1673. 

The Test Act excluded Catholics and Dissenters from public office. It may have been aimed at Charles II’s brother, James Stuart, Duke of York, who had converted to Catholicism but held high office in the military. The Act demanded that all officeholders swear an oath supporting the royal supremacy in the Church of England and deny transubstantiation (Catholic dogma that in the Mass the bread and wine become the body and blood of Jesus).  They were also to take Anglican Holy Communion. The law exposed prominent Catholic officeholders. James, Duke of York, resigned as Lord High Admiral of the Navy. Early Governors of New South Wales, holding an office under the Crown, had to take the oaths of the Test Act. The second Test Act 1678 extended the exclusion to Members of Parliament. 

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