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in the said Summons: and therefore it was given for doom by the mouth of Divid Lindsay, Dempster of parliament, in manner and forin as follows:

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This court of parliament shows for law, that the said umquhil Robert Logan of Restalrig, in his life-time committed the fore'said crime of treason and lese majesty; and that he was art and part guilty, and partaker 'thereof, against our sovereign lord and authority royal; and that the foresaids cruel, wick❤

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of parliament, first in Latin, and thereafter in Scots; The said Robert Logan being oft times called of new, at the Tolbooth window of the said Court of Edinburgh, to have compeared and answered to the said Summons of Treason, and Reasons and Causes therein contained: And he not compearing to have defended in the said matter: and to have answered to the said Summons, The said sirThomas Hamilton of Bynnie, kt., Advocate to our sovereign lord, desired the said estates declaration, if the Reasons of the said Summons were relevant: the whilked and treasonable crimes were interprised, Estates found the said summons and Reasons and Causes therein contained relevant. Therefore the said Advocate of new for proving of the foresaid Summons of Treason raised against the said Robert Logan, bearing and containing as is above-written; repeated all the foresaid missive Bills, and the saids Depositions of the said Witnesses examined before the saids Lords of Articles and Lords of Secret Council respective; and also George Sprott's Deposition, Conviction and Confession, in Judgment, and at his Execution to the death, for the said cause of Treason; with the hail other Writs and probations produced and repeated by him of before; for proving of the foresaid Summons of Treason, and Reasons therein contained; and desired the saids Estates of parliament yet, as of before, to advise the probations foresaids, led and deduced in the said matter; and to pronounce their sentence of parliament thereuntil, according to the said probations and their consciences: And thereafter, the hail Depositions of the Witnesses, missive bills, and hail writs, and probations, being read, seen, and considered by the foresaids hail estates of parliament; and they therewith being ripely advised, the said lord commissioner and estates of parliament findes, dicerns, and declares, That the foresaid umquhil Robert Logan of Restalrig committed and did in his life-time, open and manifest Treason, in all the points, articles, and manner, contained

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by his causing, persuasion, counsel and help. Likeas, the said umquhil Robert Logan of Restalrig, treasonably counselled the foresaid crime of lese majesty to his death, and in his death, in all manner, at length contained in the said summons: and therefore, depones and declares the name, memory and dignity of the said umquihil Robert Logan of Restalrig, to be extinct and abolished, and his arms 'cancelled, riven and delete furth of the books of arms, and nobility; so that his posterity shall be excluded, and be unhabile to possess or enjoy any offices, honours, dignities, lands, ' tenements, rooms, rents, possessions or goods, moveable or uumoveable, rights and others whatsomever, within the kingdom, in all time coming; and that all the said goods, lands, rooms, tenements and other goods, moveable. and unmoveable, rights and others whatsom'ever pertaining to the said umquhil Robert Logan of Restalrig; or which might otherways 'have pertained to him, at any time, since his conspiring of the said treasonable crimes, to 'be escheat and forefaulted to our sovereign lord; to appertain and remain perpetually with his majesty in property. And this I give for Doom.'

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Note, Here, as in Gowrie's Process, that the citing of dead persons is among the legal forms, prescribed both by our laws, and laws of several other nations.

88. The Trial of the Lord BALMERINOTH,* at St. Andrews, for High Treason: the 10th of March, 7 JAMES I. A. D. 1609. [Copied from a MS. in the Bodleian Library, Rotulæ in Archivo, A. 3033. 44, 10. And though short, is a more perfect Copy than that in the Cotton Library, Julius, F. 6. N. 34.]

him.

THE Lords being set, the lord Balmerinoth to know, whom he had entertained to speak for was sent for; and being come, the Lord Advo- | cate told him, There was a Warrant conse from his majesty for his Trial, and therefore desired

He answered, "He had great necessity to speak, the cause being such as concerned his

rest and the

;

* The lord Balmerino was a professed Pro- a hunting, thrust it in among the testant: but, upon what motive is not known, king, through inadvertency, in that hurry, signed he often pressed the king to write a Letter of it, The Letter thus signed, was sent away, and no more heard of it till some years after, cardiCompliment to the Pope, which, it seems, his majesty had as often refused to do. Hereupon, nal Bellarmine mentioning of it to the king's as the thing is related, Balmerino writ the Let-disadvantage, his majesty was obliged to take ter, and bringing the king several Dispatches at notice of, and to question the Secretary about a time when his majesty was in haste to be gone

VOL. II.

it.

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life and estate; but he had greater necessity to
hold his peace, by reason of his offence, which
was such as it admitted no excuse; and my
grief for it so great, as it will not suffer me to
extenuate my crime: and therefore I will nei-
ter make any friendt interested in that, where-
unto myself fell without the advice of any; nor
will I desire a hwyer to make that secin less, |
which I would have: If the world know to be
such as it is. Herein are two points in which
I would have all men satisfied concerning his
majesty: First, for his majesty's innocency in
the writing of the letter; for I protest I could
never draw him to hear with patience my mo-
tion. But he did utterly and absolutely refuse
to take that course against conscience, which
would neither satisfy me, who in a politic natu-
ral course had conceited it might be beloveful
for his majesty; and so applied myself to that
crooked device, which hath worthily brought
ine to this estate wherein I now stand.-The
second thing concerning his majesty, is this:
That whereas some in malice to his majesty, or
my friends in commiseration of my estate, may
think and report it too rigorous and cruel a
course, which is held against me in a matter of
this moment, the suggesting of a letter of recom-
mendation, to proceed against my life and
estate; I would have such know, that his ma-
jesty's clemency is many ways tesfied unto
the world, in cases that have seemed more
nearly to concern him; and therefore mcn
should not judge of his majesty's disposition
to mercy by this action; but rather cast
their eyes upon my unhappiness, who have
attended in such a point as his majesty can ex-
tend no favour to me without the damage of his
own honour, which being dearer to him than
his life, it must needs be more tendered than
twenty thousand such lives as mine. And there-
fore I desire not to be spared at so dear a rate
as the impeachment of his majesty's honour.—
There are likewise two things concerning my-
self, which I desire all men to understand.
First, That I had no aim at the alteration of
Religion, or to bring in a Toleration, or what
you will term it, by the writing of tirit letter:
but merely a politic course, as I have soid,
which, as a natural man, 1 conceited might,fur-
ther his majesty's right. And this I prote:t to
be true, as I shall answer God in the Day of
Judgment, when the secrets of all hearts stall
be disclosed. Next, I would have no man thinking reign. See a. D. 1634.

that it was gain or any private advantage that drew me to that; for I protest I never received or expected the least reward from any princein the world, save from the king my master. And this, as I shall answer the great God in | heaven."

This said, the Jury was called, and in their hearing was read the Indictment, which aggravated his crime by his majesty's favours to him, which had deserved more regard; by his majesty's refusal; by the dangers which did follow, or might have done; imputing all the Treasons which have been a-foot since, to be fruits of that letter; and lastly, charging him with having intelligence with foreign estates, and enemies of the Gospel, for the subversion of the state of Religion.

To all these he replied not one word.

Then was read his Confession taken in Frankland, the effect of that which he made in London. Then was read the Speech he uttered before the Council at Whitehall, containing his sorrow, his sins, the favours he had received, his unworthiness of them, his desire to give his majesty satisfaction for his offence to the last drop of his blood. Last, was read a Letter from his majesty to the Lord Advocate, shewing his majesty's refusal to listen to the Lord President's motion, and setting down some circumstances which passed betwixt his majesty and the Lord President at the time of the refusal; against all which the President said no. thing.

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89. The Case of PROCLAMATIONS.

So the Jury going together, after a time returned, and found him Guilty of all the parts of the Indictment.

Then the Lords conferring upon the Bench; my Lord Justice signified, That they were not to proceed further till they knew more of the king's pleasure. And so advising the Lord President to fit himself for God; and giving the Jury thanks for their pains and care they had of his majesty's honour; the court rose.

He was by order from court detained a prisoner for some time; and afterwards made a sort of prisoner at large: till at last, in consis deration of his submissive behaviour, and the sufferings he had undergone; the king was pleased to pardon hin, and to restore his blood and estate.⭑

* His son was tried for a Libel in the follow

Mich. S JAMES I. A. D. 1610.

[12 Coke's Reports, 74.]

MEMORANDUM, that upon Thursday, 20 | Sept. Regis Jacobi, I was sent for to attend the lord chancellor, lord treasurer, lord privy seal, and the chancellor of the duchy, there being present the attorney, the solicitor, and recorder: and two questions were moved to me by the lord treasurer; the one, if the king by his proclamation may prohibit new buildings in and

about London, &c. the other, if the king may prohibit the making of starch of wheat; and the lord treasurer said, that these were preferred to the king as grievances, and against the law and justice: and the king hath answered, that he will confer with his privy council, and his judges, and then he will do right to them. To which I answered, that these questions

which cannot be punished without proclamation, cannot be punished with it. Vide le stat. 31 Hen. 8, cap. 8, which act gives more power to the king than he had before, and yet there it is declared, that proclamations shall not alter the law, statutes, or customs of the realm, or inpeach any in his inheritance, goods, body, life, &c. But if a man should be indicted for a contempt against a proclamation he shall be fined and imprisoned, and so impeached in his body and gods. Vide Fortescue, cap. 9, 18, 34, 36, 37, &c.

were of great importance. 2. That they con- | 36, &c. 31 H. 8, cap. 8, hic infra: also the cerned the answer of the king to the body, viz. king cannot create any offence by his prohibito the commons of the house of parliament. tion or proclamation, which was not an offence 3. That I did not hear of these questions until before, for that was to change the law, and to this morning at nine of the clock; for the griev- make an offence which was not; for ubi non ances were preferred, and the answer madeest lex, ibi non est transgressio:' ergo, that when I was in my circuit. And lastly, both the Proclamations, which now were showed, were promulgated, anno 5 Jac. after my time of attorneyship: and for these reasons I did humbly desire them that I might have conference with my brethren the judges about the answer of the king, and then to make an advised answer according to law and reason. To which the lord chancellor said, that every precedent had first a commencement, and that he would advise the judges to maintain the power and prerogative of the king; and in cases in which there is no authority and precedent, to leave it But a thing which is punishable by the law, to the king to order in it, according to his wis- by fine, and imprisonment, if the king prohibit dom, and for the good of his subjects, or other- it by his proclamation, before that he will puwise the king would be no more than the duke nish it, and so warn his sůl jects of the peril of of Venice; and that the king was so much re- it, there if he permit it after, this as a circumstrained in his prerogative, that it was to be stance aggravates the offence; but he by profeared the bonds would be broken: and the clamation cannot make a thing unlawful, which lord privy seal said, that the physician was not was permitted by the law before: and this was always bound to a precedent, but to apply his well proved by the ancient and continual fornis medicine according to the quality of the dis- of in lictments, for all indictments conclude, ease: and all concluded that it should be ne- contra legem et consuetudinem Angliæ, or cessary at that time to confirm the king's pre-contra leges et statuta, &c.' But never was rogative with our opinions, although that there scen any indictment to conclude contra regiam were not any former precedent or authority in ' proclamationem.’ law; for every precedent ought to have a com

mencement.

So in all cases the king out of his providence, and to prevent dangers, which it will be too late to prevent afterwards, he may prohibit them before, which will aggravate the offence if it be afterwards committed and as it is a grand prerogative of the king to make procla mation, for no subject can make it without authority from the king, or lawful custom, upon pain of fine and imprisonment, as it is held in the 22 II. 3, Procl. B. But we do find divers precedents of proclamations which are utterly against law and reason, and for that void; for qua contra rationem juris introducta sunt, non debent trahi in consequentiam.'

To which I answered, that true it is that every precedent hath a commencement; but when authority and precedent is wanting, there is need of great consideration, before that any thing of novelty shall be established, and to provide that this be not against the law of the land: for I said, that the king cannot change any part of the common law, nor create auy offence by his proclamation, which was not an offence Lefore, without parliament. But at this time I only desired to have a time of consideration and conference with my brothers, for ⚫ deliberandum est diu, quod statuendum est An act was made, by which foreigners were 'semel ;' to which the solicitor said, that divers licensed to merchandize within London; H. 4, sentences were given in the Star-chamber upon by proclamation prohibited the execution of it; the proclamation against building; and that I and that it should be in suspence usque ad myself had given sentence in diverscases for the proximum parliament', which was against law. said proclamation: to which I answered, that Vide dors, claus, 8 II. 4. Proclamation in Lonprecedents were to be seen, and consideration don. But 9 H. 4, an act of parliament was to be had of this upon conterence with my bre-made, that all the Irish people should depart thren, for that melius est recuri ere, quam 'male currere;' and that indictments conclude, 'contra leges et statuta,' but I never heard an indictment to conclude, contra regiam proclamationem.' At last my notion was allowed, and the lords appointed the two chief justices, chief baron, and baron Altham to have consideration of it.

Note, the king by his proclamation, or other ways, 'cannot change any part of the common law, or statute law, or the customs of the realm, 11 II. 4, 37. Fortescue De laudibus Angliæ legim, cap. 9, 18 Ed. 4, 35,

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the realm, and go into Ireland before the feast of the Nativity of the blessed Lady, upon pain of death, which was absolutely in terrorem, and was utterly against the law.

Hollinshed 722. anno Domini 1546, 37 II. 8, the whore-houses, called the stews, were suppressed by proclamation and sound of trainpet, &c.

In the same term it was resolved by the two chief justices, chief baron, and baron Altham, upon conference betwixt the lords of the privy council and them, that the king by his proclamation cannot create any offence which was

*

not an offence before, for then he may alter the law of the land by his proclamation in a high point; for if he may create an offence where none is, upon that ensues fine and imprisonment: also the law of England is divided into three parts, common law, statute law, and custom; but the king's proclamation is none of them : also malum aut est malum in se, aut prohibitum,' that which is against common law is malum in se,malum probibitum,' is such an offence as is prohibited by act of parliament, and not by proclamation. Also it was resolved, that

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the king hath no prerogative, but that which the law of the land allows him.

But the king for prevention of offences may by proclamation admonish his subjects that they keep the laws, and do not offend them ; upon punishment to be inflicted by the law, &c. Lastly, if the offence be not punishable in the star-chamber, the prohibition of it by proclamation cannot make it punishable there : and after this resolution, no proclamation imposing fine and imprisonment, was afterwards inade, &c. But see 12 Coke's Reports 20.

90. The Cases of BARTHOLOMEW LEGATT and EDWARD WIGHTMAN, 10 JAC. I. A. D. 1612. [Fuller's Church Hist.

for Heresy
B. 10. § 4.*]

A true Relation of the Commission and Warrants for the Condemnation and Burning of Bartholomew Legatt and Edward Wightman; the former at West Smithfield, the

latter at Litchfield.

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of that court. And no wonder that he slighted

the

This

vellous satisfaction to a multitude of people there present, that it is conceived, it happily unproselited some inclinable to his opinions; though Legate himself remained pertinacious, both against the impressions of arguments, and scripture, daily multiplying his enormous opinions. It is the happiness nature indulgeth to monsters that they are all barren; whereas on the contrary, monstrous positions are most procreative of the like, or worse than themselves.

nity of him, who is the shepherd and bishop of power of earthly bishops, denying the diviour souls.' 1 Pet. ii. 25. The disputation against him, was principally managed by John King, bishop of London, who gravelled and utterly BUT leaving the outlandish, let us come to confuted him with that place of Scripture, our English Vorstius (though of far less learn- John xvii. 5. And now O Father, glorify thou ing, of more obstmacy, and dangerous opinions) me with thine ownself, with the glory which I I mean that Arian, who this year suffered in had with thee before the world was.' Smithfield: his name Bartholomew Legate, na- text, I say, was so seasonably alledged, so tive county Essex, person comely, complexion plainly expounded, so pathetically enforced by black, age about 40 years: of a bold spirit, con- the eloquence, and gravity of that bishop (quafident carriage, fluent tongue, excellently skill-litics wherein he excelled) that it gave mared in the Scriptures; and well had it been for him, if he had known them less, or understood them better; whose ignorance abused the word of God, therewith to oppose God the word. His conversation (for ought I can learn to the contrary) very unblameable; and the poison of heretical doctrine is never more dangerous, than when served up in clean cups, and washed dishes.-King James caused this Legate often to be brought to him, and seriously dealt with him to endeavour his conversion. One time Before we set down his pestilent opinions; the king had a design to surprize him into a may writer and reader fence themselves with confession of Christ's Deity, as his majesty after- prayer to God, against the infect on thereof; wards declared to a right reverend prelate, by lest otherwise, touching such pitch (though but asking him, Whether or no he did not daily with the bare mention) defile us, casually tempt pray to Jesus Christ? Which, had he acknow-ing a temptation in us, and awaking some corledged, the king would infallibly have inferred, that Legate tacitly consented to Christ's divinity as a searcher of the hearts. But herein his majesty failed of his expectation, Legate returning, That indeed he had prayed to Christ in the days of his ignorance, but not for these last seven years. Hereupon the king in choler spurned at him with his foot; away base fellow' (said he) it shall never be said, that one stayeth in my presence, that hath never prayed to our Saviour for seven years together.'-Often was he convented before the bishops in the consistory of St. Paul's, where he persisted obstinate in his opinions, flatly denying the authority

Very diligent efforts were made, but unsuccessfully, to discover any records of the Trials of these two persons.

ruption which otherwise would sleep silently in our souls. And, if notwithstanding this our caution, any shall reap an accidental evil to themselves, by reading his damnable opinions, my pen is no more accessary to their harm, than that apothecary is guilty of murder, if others, out of a liquorish curiosity, kill themselves with that poison, which he kept in his shop for sovereign use to make antidotes thereof. His damnable Tenets were as followeth : 1. That the Nicene creed, and Athanasius creed, contain not a profession of the true Christian faith. 2. That Christ is not God of God begotten, not made; but begotten, and made. 3. That there are no persons in the Godhead. 4. That Christ was not God from everlasting, but began to be God, when he took flesh of the Virgin Mary. 5. That the world

was not made by Christ. 6. That the Apostles teach, Christ to be man only. 7. That there is no generation in God, but of creatures. 8. That this assertion, God to be made man, is contrary to the rule of faith, and monstrous blasphemy. 9. That Christ was not before the fulness of time, except by promise. 10. That Christ was not God, otherwise than an anointed God. 11. That Christ was not in the form of God equal with God, that is, in substance of God, but in righteousness, and giving salvation. 12. That Christ by his Godhead wrought no miracle. 13. That Christ is not to be prayed unto.-For maintaining these opinions, Legate had long been in prison in Newgate, yet with liberty allowed him to go abroad; not contented wherewith he openly boasted, and often threatened to sue the court, which committed him, for reparations for false imprisonment; so that his own indiscretion in this kind, hastened his execution. For hereupon bishop King finally convented him in the consistory of St. Paul's, and that worthy prelate, | foreseeing that his proceedings herein would meet with many listening ears, prying eyes, and prating tongues, chose many reverend bishops, able divines, and learned lawyers to assist him. So that the consistory, so replenished for the time being, seemed not so much a large court, as a little convocation. By the counsel and consent of these, by his definitive sentence, he pronounced, decreed and declared the foresaid Bartholomew Legate an obdurate, contumacious, and incorrigible heretic. And by an instrument called a Significavit, certified the same into the chancery, delivering him up unto the secular power, the church-keys in such cases craying the help of the civil sword. Whereupon, king James, with his letters, dated March 11, under the privy-seal, gave order to the broad-seal to direct the writ De Hæretico comburendo, to the sheriffs of London, for the burning of the foresaid Legate. Now as the bishop herein surrendered Legate to the secular power, my Ecclesiastical History in like manner resigns him to the Civil Historian, together with all the doubts, difficulties, and legal scruples attending on, or resulting from his condemnation. Let the learned in the law consider on what statute the writ for his burning was grounded, whether on those old statutes enacted in the reigns of Richard the 2nd, and Henry 4th; or on the branch of some other new sta

tute to that effect. Let them satisfy us, how far those laws were repealed in 1mo Elizabeth, and how far they still stand in force; as, though not to [pretended] Lollardism, yet to blasphemy. Let them examine the judgment of the learned Fitz-Herbert, whether sound in his assertion, That heretics, before the writ of their burning be issued out against them, must first be convicted of heresy before a provincial convocation; whilst others affirm, That they being convicted before their ordinary, sufficeth, provided it be for such opinions which convocations have formerly condemned for heretical—.To Smithfield he was brought to be burned. See here, it is neither the pain nor the place, but only the cause makes a Martyr. In this very Smithfield how many Saints in the Marian days, suffered for the testimony of Jesus Christ? Whereas now one therein dieth in his own blood for denying him. Vast was the conflux of people about him. Never did a scare-fire at midnight summon more hands to quench it, than this at noon-day did eyes to behold it. At last, refusing all mercy, he was burned to ashes.* And so we leave him, the first that for a long time suffered death in that manner : and, oh that he might be the last to deserve it! In the next month Edward Wightman of Burton upon Trent, convicted before Richard Neile bishop of Coventry and Litchfield, was burned at Litchfield for far worse opinions (if worse might be) than Legate maintained. Mary Magdalen indeed was once possessed with seven devils, but ten several heresies were laid to Wightman's charge; namely, those of Ebion, Cerinthus, Valentinian, Arrius, Macedonius, Simon

* Hume tells us (appendix to the reign of Jas. 1st.) "Stowe says that these Arians were offered their pardon at the stake if they would merit it by a recantation." The following are the words of Stow: "Wednesday the 18th of March, Legat, an obstinate Arian heretique, was burned in Smithfield: he refused all favour and contemned all ecclesiastical government, and upon Easter Eve, the 11th of April following, Edward Wightman, another obstinate miscreant heretique, was burned at Litchfield, having likewise inore favour offered him than he had grace to accept." Stow's Annales, 1002. He has not one syllable of pardon, or the stake, or recantation. Thus it is, as bishop Butler has observed in his excellent Sermon on the government of the tongue, that "Some persons, when Some learning concerning Heresy and the they have heard the least imperfect hint of an writ De Hæretico comburendo, is to be found affair, will, out of their own head, add the cirin 5 Co. Rep. Caudrey's case, 12, Co. Rep. 20, cumstances of time and place and other mat56, 89, 92 (Legatt's case) Barrington's Obs. on ters to make out their story." Mrs. Macaulay Stat. 2 H. 4. 2 H. 5. See also in 1 Hale's P. says that "one of these heretics was lunatic C. c. 30. and the notes of the editors; (though at the time of his condemnation :" for which note (u) in Wilson's edition is absurd;) a assertion I cannot find the slightest trace or learned history of the law of heresy. Lord pretence of authority, unless it be what Hume Hale for the cases of Legatt and Wightman re- farther says, that " a madman who called himfers to the Chronicle of sir Richard Baker," self the Holy Ghost," probably he had in his who however gives no particulars. Collier like-mind Wightman," was without any indulgence wise is very brief. See also a good Summary in for his frenzy condemned to the same punish4 Black. Comm. c 4. s. 2.

meat."

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