The practice of burning the heretic alive was thus not the creature of positive law, but arose generally and spontaneously, and its adoption by the legislator was only the recognition of a polular custom. We have seen numerous instances of this in a former chapter, and even as late as 1219, at Troyes, an insane enthusiast who maintained that he was the Holy Ghost was seized by the people, placed in a wicker crate surrounded by combustibles, and promptly reduced to ashes. The origin of this punishment is not easily traced, unless it is to the pagan legislation of Diocletian, who decreed this penalty for Manichæism. The torturing deaths to which the martyrs were exposed in times of persecution seem to suggest, and in some sort to justify, a similar infliction on heretics; sorcerers were sometimes burned under the imperial jurisprudence, and Gregory the Great mentions a case in which one was thus put to death by the Christian zeal of the people. As heresy was regarded as the greatest of crimes, the desire which was felt alike by laity and clergy to render its punishment as severe and as impressive as possible found in the stake its appropriate instrument. With the system of exegesis then in vogue, it was not difficult to discover an emphatic command to this effect in John, XV. 6. "If a man abide not in me, he is cast forth as a branch and is withered; and men gather them and cast them into the fire and they are burned." The literal interpretation of Scriptural metaphor has
rici (Böhlau, Nove Constit. Dom. Alberti, Weimar, 1858, p. 78, cf. Böhmer Regost. V. 700)—Sachsenspiegcl, I. xiii—Schwabenspiegel, cap. 118 No. 29; cap
351 No. 3 (Ed. Senckenb.).-Archivio di Venezia, Codice ex Brera No. 277.-El Fuero real de España, Lib. r. Tit. I. ley 1-Isambert, Anc. Loix Françaises I 230-33, 257.-Harduin. Concil. VII. 208-8.-Établissements, Lib. I. ch. 85. Livres de Jostice et de Plet, Liv. I. Tit. iii. 7.-Beaumanoir, Cout. du Beauvoisis, xr. 2, xxx. 11.-2 Henry IV. c. 15 (cf. Pike, History of Crime in Eng-
land I. 343-4, 489).
It is true that both Bracton (De Legibus Anglie Lib. IrI. Tract ii. cap. 9 § 2) and Home (Myrror of Justice, cap. . 4, cap. II. § 22, cap. IV. § 14) describe the punishment of burning for apostasy, heresy, and sorcery, and the former alludcs to a case in which a clerk who embraced Judaism was burned by a council of Oxford, but the penalty substantially had no place in the common law, save under the systematizing efforts of legal writers, enamoured of the Roman jurisprudence, and seeking to complete their work by the comparison of treason against God with that against the king. The silence of Britton (chap. v.) and of the Fleta (Lib. I. cap. 21) shows that the question had no practical importance.