1911 Encyclopædia Britannica/Burning to Death

BURNING TO DEATH. As a legal punishment for various crimes burning alive was formerly very wide-spread. It was common among the Romans, being given in the XII. Tables as the special penalty for arson. Under the Gothic codes adulterers were so punished, and throughout the middle ages it was the civil penalty for certain heinous crimes, e.g. poisoning, heresy, witchcraft, arson, bestiality and sodomy, and so continued in some cases, nominally at least, till the beginning of the 19th century. In England, under the common law, women condemned for high treason or petty treason (murder of husband, murder of master or mistress, certain offences against the coin, &c.) were burned, this being considered more “decent” than hanging and exposure on a gibbet. In practice the convict was strangled before being burnt. The last woman burnt in England suffered in 1789, the punishment being abolished in 1790.

Burning was not included among the penalties for heresy under the Roman imperial codes; but the burning of heretics by orthodox mobs had long been sanctioned by custom before the edicts of the emperor Frederick II. (1222, 1223) made it the civil-law punishment for heresy. His example was followed in France by Louis IX. in the Establishments of 1270. In England, where the civil law was never recognized, the common law took no cognizance of ecclesiastical offences, and the church courts had no power to condemn to death. There were, indeed, in the 12th and 13th centuries isolated instances of the burning of heretics. William of Newburgh describes the burning of certain foreign sectaries in 1169, and early in the 13th century a deacon was burnt by order of the council of Oxford (Foxe ii. 374; cf. Bracton, de Corona, ii. 300), but by what legal sanction is not obvious. The right of the crown to issue writs de haeretico comburendo, claimed for it by later jurists, was based on that issued by Henry IV. in 1400 for the burning of William Sawtre; but Sir James Stephen (Hist. Crim. Law) points out that this was issued “with the assent of the lords temporal,” which seems to prove that the crown had no right under the common law to issue such writs. The burning of heretics was actually made legal in England by the statute de haeretico comburendo (1400), passed ten days after the issue of the above writ. This was repealed in 1533, but the Six Articles Act of 1539 revived burning as a penalty for denying transubstantiation. Under Queen Mary the acts of Henry IV. and Henry V. were revived; they were finally abolished in 1558 on the accession of Elizabeth. Edward VI., Elizabeth and James I., however, burned heretics (illegally as it would appear) under their supposed right of issuing writs for this purpose. The last heretics burnt in England were two Arians, Bartholomew Legate at Smithfield, and Edward Wightman at Lichfield, both in 1610. As for witches, countless numbers were burned in most European countries, though not in England, where they were hanged. In Scotland in Charles II.’s day the law still was that witches were to be “worried at the stake and then burnt”; and a witch was burnt at Dornoch so late as 1708.