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 commous 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-nake an offence which was not; for ubi nou ances were preferred, and the answer made 'est lex, ibi non est transgressio:' ergo, that when I was in my circuit. And lastly, both which cannot be punished without proclamation, the Proclamations, which now were shewed, cannot be punished with it. Vide le stat. $1 were promulgated, anno 5 Jac. after my time of Hen. 8, cap. 8, which act gives more power to attorneyship: and for these reasons I did hum- the king than he had before, and yet there it is. bly desire them that I might have conference declared, that proclamations shall not alter the with my brethren the judges about the answer law, statutes, or customs of the realin, or imof the king, and then to make an advised an- peach any in his inheritance, goods, body, life, swer according to law and reason. To which &c. But if a man should be indicted for a the lord chancellor said, that every precedent contempt against a proclamation he shall be had first a commencement, and that he would fined and imprisoned, and so impeached in bisadvise the judges to maintain the power and body and goods. Vide Fortescue, cap. 9, 18, prerogative of the king; and in cases in which 34, 36, 37, &c. there is no authority and precedent, to leave it to the king to order in it, according to his wisdom, and for the good of his subjects, or other-it wise the king would be no more than the duke of Venice: and that the king was so much restrained in his prerogative, that it was to be feared the bonds would be broken: and the lord privy seal said, that the physician was not always bound to a precedent, but to apply his medicine according to the quality of the disease; and all concluded that it should be necessary at that time to confirm the king's prerogative with our opinions, although that there were not any former precedent or authority in law; for every precedent ought to have a com mencement. But a thing which is punishable by the law, by fine, and imprisonment, if the king prohibit by his proclamation, before that he will pu-. nish it, and so warn his subjects of the peril of it, there if he permit it after, this as a circumstance aggravates the offence; but he by proclamation cannot make a thing unlawful, which was permitted by the law before: and this was well proved by the ancient and continual forms of indictments, for all indictments conclude, 'contra legem et consuetudinem Angliæ, or ⚫ contra leges et statuta, &c.' But never was scen any indictment to conclude contra regiam proclamationem.' 6 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 H. 8, Procl. B. But we do find divers precedents of proclamations which are utterly against law and reason, and for that void; for contra rationem juris introducta sunt, non debent trahi in consequentiam.' · que 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 any offence by his proclamation, which was not an offence before, 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 H. 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 conference with my bre-made, that all the Irish people should depart thren, for that inelius est recurrere, 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 motion 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 H. 4, 37. Fortescue De laudibus Anglia legum, cap. 9, 18 Ed. 4, 35, the realm, and go into Ireland before the feast of the Nativity of the blessed Lady, upou pain of death, which was absolutely in terrorem, and was utterly against the law. Hollioshed 722. anno Domini 1546, 37 II. 8, the whore-houses, called the stews, were suppressed by proclamation and sound of tru pet, &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 ma- | lum in se,malum prohibitum,' is such an offence as is prohibited by act of parliament, and not by proclamation. Also it was resolved, that 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 ti ey 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 im posing fine and imprisonment, was afterwards inade, &c. But see 12 Coke's Reports 20. 90. The Cases of BARTHOLOMEW LEGATT and EDWARD WIGHTMAN, for Heresy 10 JAC. I. A. D. 1612. [Fuller's Church Hist. 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. the power 6 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. of that court. And no wonder that he slighted nity of him, who is the shepherd and bishop of of earthly bishops, denying the diviour souls.' 1 Pet. . 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 obstinacy, 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.' This 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-lities 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 unblaneable; 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 infection 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 corfedged, the king would infallibly have inferred, ruption which otherwise would sleep silently in that Legate tacitly consented to Christ's divi- our souls. And, if notwithstanding this our nity as a searcher of the hearts. But herein caution, any shall reap an accidental evil to his majesty failed of his expectation, Legate themselves, by reading his damnable opinions, returning, That indeed he had prayed to Christ my pen is no more accessary to their harm, in the days of his ignorance, but not for these than that apothecary is guilty of murder, if last seven years. Hereupon the king in choler others, out of a liquorish curiosity, kill themspurned at him with his foot; away base fellow' selves with that poison, which he kept in his (said he) it shall never be said, that one stayeth shop for sovereign use to make antidotes therein my presence, that hath never prayed to our of. His damnable Tenets were as followeth: Saviour for seven years together.'-Often was 1. That the Nicene creed, and Athanasius he convented before the bishops in the consis-creed, contain not a profession of the true tory 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. 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 129] very tion; whilst others affirm, That they being con→ was not made by Christ. 6. That the Apos- | tute to that effect. Let them satisfy us, how tles teach, Christ to be man only. 7. That far those laws were repealed in 1mo Elizabeth, there is no generation in God, but of crea- and how far they still stand in force; as, though tures. 8. That this assertion, God to be made not to [pretended] Lollardism, yet to blasphemy. man, is contrary to the rule of faith, and mon- Let them examine the judgment of the learned strous blasphemy. 9. That Christ was not be- Fitz-Herbert, whether sound in his assertion, fore the fulness of time, except by promise. 10. That heretics, before the writ of their burning be issued out against them, must first be conThat Christ was not God, otherwise than an anointed God. 11. That Christ was not invicted of heresy before a provincial convocathe 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 craving 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 Now as the burning of the foresaid Legate. 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 * 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 more 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 govern ment of the tongue, that "Some persons, when they have heard the least imperfect bint of an affair, will, out of their own head, add the circumstances of time and place and other matters to make out their story." Mrs. Macaulay says that "one of these heretics was lunatic at the time of his condemnation :" for which assertion I cannot find the slightest trace or a madman who called himpretence of authority, unless it be what IIume farther says, that “ "self the Holy Ghost," probably he had in his was without any indulgence for his frenzy condemned to the same punish * Some learning concerning Heresy and the writ De Hæretico comburendo, is to be found in 5 Co. Rep. Caudrey's case, 12, Co. Rep. 20, 56, 89, 92 (Legatt's case) Barrington's Obs. on Stat. 2 H. 4. 2 H. 5. See also in 1 Hale's P. C. c. 30. and the notes of the editors; (though note (u) in Wilson's edition is absurd;) a learned history of the law of heresy. Lord Hale for the cases of Legatt and Wightman refers to the Chronicle of sir Richard Baker, who however gives no particulars. Collier like-mind Wightman, wise is very brief. See also a good Summary in 4 Black. Comm. c 4. s. 2. ment.". Magus, Manes, Manichæus, Photinus, and of the Anabaptists. Lord! What are we when God leaves us? Did ever man maintain one heresy, and but one heresy? Chains of darkness, we see, have their links, and errors are complicated together. God may seem wellpleased with this seasonable severity. For the fire thus kindled, quickly went out for want of fewel. I mean, there was none ever after thated his said most dangerous and blasphemous openly avowed these heretical doctrines. Only a Spanish Arian, who, condemned to die, was notwithstanding suffered to linger out his life in Newgate, where he ended the same. Indeed, such burning of heretics much startled common people, pitying all in pain, and prone to asperse justice itself with cruelty, because of the novelty and hideousness of the punish ment. And the purblind eyes of vulgar judgments looked only on what was next to them, (the suffering itself) which they beheld with compassion, not minding the demerit of the guilt, which deserved the same. Besides, such being unable to distinguish betwixt constancy and obstinacy were ready to entertain good thoughts even of the opinions of those heretics, who sealed them so manfully with their blood. Wherefore king James politicly preferred, that heretics hereafter, though condemned, should silently, and privately waste themselves away in the prison, rather than to grace them and amuse others with the solemnity of a public execution, which in popular judgments usurped the honour of a persecution. Christ was not God otherwise than 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.-Wherein he the said Bartholomew Legat hath before the said reverend father, maintainopinions, as appeareth by many of his confessions publickly made and acknowledged. For which his damnable and heretical opinions, be is by diffinitive sentence, by the said reverend father, John, bishop of London, with the advice and consent of other reverend bishops, learned divines, and others learned in the laws, assisting him in judgment, justly adjudged, pronounced, and declared to be an obstinate and incorrigible heretic, and is left by them under the sentence of the great excommunication, and therefore, as a corrupt member, to be cut off from the Church of Christ, and society of the faithful, and is to be, by our secular power and authority, as an heretick, punished; as by the Significavit of the said reverend father in God, the said bishop of London, bearing date at London the third of March, in the year of our Lord 1611, in the ninth year of our reign, and remaining in our court of Chancery, more at large appeareth. And although the said Bartholomew Legatt hato, since the said Sentence pronounced against him, been often very charitably moved and exhorted, as well by the said bishop, as by many grave and learned divines, to di-swade, revoke and remove him from the said blasphemous and beretical opinions, yet he arrogantly and James R. James by the Grace of God, King willfully persisted and continueth in the same. of England, Scotland, France and Ireland; De-We therefore, according to our regal function fender of the Faith, &c. To our right trusty, and office, minding the execution of justice in and right well beloved Counsellor, Thomas, this behalf, and to give example to others, least lord Ellesmere, our Chancellor of England, they should attempt the like hereafter, have Greeting. Whereas the reverend father in God determined, by the assent of our council, to John bishop of London having judicially pro- will and require, and do hereby authorize and ceeded in a cause of heresie against Bartho-require you, our said chancellor, immediately, lomew Legatt, of the city of London, in the upon the receipt herect, to award and make diocess of the said bishop of London, concern-out, under our great seal of England, our writ ing divers wicked errors, heresies, and blasphemous opinions, hoiden, affirmed and pub ished by the said Bartholomew Legatt, and, chiefly in these thirteen blasphemous positions following, viz. That the creed called the Nicene Creed and Athanasius's creed, contain not a profession of the true Christian faith, or that he will not profess his faith according to the same creeds. 2. That Christ is not God, of God begotten, not made, but Legotten and made. S. That there are no persons in the Godhead. 4. That Christ was not God from everlasting, but Legan 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 ume, except by promise. 10. That A Narration of the Burning of Bartholomew Legatt. of execution according to the tenor in these presents ensuing. And these Presents shail be your suficient warrant and discharge for the same. Rex vicecomitibus London, salutem. Cùm reverendus in Caristo pater, Johannes, London episcopus, nobis Sanificavit, quod, cum ipse in quodam hæreticæ pravitatis negotio contrà quendam Bartholomeum Legait, subditum nostrun, civitatis Loudon, dicti London episcopi diocess. et jurisdictionis, rate et legitimè procediens, per acta inactitata, deducta, proposita, et per confessiones ipsius Bartholomei Legatt, coram prafato episcopo judicialiter factas et recognitas, comperit et invenit præfatum Bartholomeum, Legatt quampluricies nephandos errores, falsas opiniones, hæreses, et blasphemias execrandus, et sccierata dogmata catholicæ et orthodoxæ fidei et religioui et sacrosancto Dei verbo expresse contraria et repugnantia, scienter, maŭciosè, animoque pertinaci, obdurat?, errors, false opinions, heresies, and cursed blasphemies, and impious doctrines, expressly contrary and repugnant to the Catholick faith and religion, and the holy word of God, knowingly and maliciously, and with a pertinacious and obdurate plainly incorrigible mind, to believe, hold, affirm, and publish; the same reverend father, the bishop of Loudon, with the advice and consent, as well of the reverend bishops and other divines, as also of men learned in the law, in judgment sitting and assisting; the same Bartholomew Legatt by his definitive sentence hath pronounced, decreed, and declared to be an obdurate, contumacious and incorrigi ble heretick, and upon that occasion as a stub planèque incorrigibili, crederc, tenere, affirmare, | et publicare; idem reverendus pater, London episcopus, cum consilio et consensu tam reverendorum episcoporum et aliorum theologorum quain juris etiam peritorum in judicio assiden. et assisten., eundem Bartholomeum Legatt, per sententiam suam diffinitivam, obduratum, contumacem, et incorrigibilem hæreticum pronunciavit, decrevit, et declaravit, eâque occasione, tanquam protervum hæreticum et membrum putridum et contagiosum, ab ecclesiâ Christi et fidelium communione recisum et amputatum fore. Cum igitur sancta mater ecclesia non habeat quod ulteriùs facere et exequi valeat in hac parte, idem reverendus pater præfatum Bartholomeum Legatt, ut blas-born heretick, and rotten contagious member phemum hæreticum brachio nostro seculari reliquit condignâ animadversione plectend', prout per literas patentes præfati reverendi in Christi patris, London episcopi, in hac parte superinde confect' nobis in chancellar' nostram certificat' est. Nos igitur ut zelator justitiæ et fidei catholicæ defensor, volentesque ecclesiam sanctam ac jura et libertates ejusdem et fidem catholicam manutenere et defendere, ac hujusmodi hæreses et errores ubique, quantum in nobis est, eradicare et extirpare, ac hæreticos sic convictos animadversione condignâ puniri; attendentesq, hujusmodi hæreticum in formâ præed' convictum et damnatum juxtà leges et consuetudines regni nostri Angliæ in hac parte consuet' ignis incendio comburi debere: Vobis præcipimus quod dictum Bartholomeum Legatt in custodiâ vestrâ existen' apud West-Smithfield in loco publico et aperto ex causâ præmissâ coràm populo publicè igni committi, ac ipsum Bartholomeum Legatt in eodem igne realiter comburi fac' in bujusmodi criminis detestationem, aliorumque Christianorum exemplum manifestum, ut in simile crimen labantur. Et hoc sub periculo incumbenti nullatenus omittatis. Teste, &c. HENRY HIBIRTE. to be cut off from the church of Christ, and the communion of the faithful; and whereas the holy mother church hath not power to do and execute any thing further in this matter, the same reverend father hath left the aforesaid Bartholomew Legatt as a blasphemous heretick to our secular power, to be punished with condign punishment; as by the letters patents of the said reverend father in Christ, the bishop of London, in this behalf, above made, is certified unto us in our chancery. We therefore, as a zealous promoter of justice, and a defender of the Catholic faith, and being willing to maintain and defend the holy church, and rights and liberties of the same, and the Catholic faith; and such heresies and errors every where, what in us lieth, to root out and extirpate, and to punish with condign punishment hereticks so convicted; and considering that such an heretic, in form aforesaid convicted and condemned, ought according to the laws and customs of thisour kingdom of England in this part accustomed, to be burned with fire; We do command you, that the said Bartholomew Legatt, being in your custody, you do commit publicly to the fire, before the people, in a public and open This containeth a Warrant to be granted by place in West-Smithfield, for the cause aforeyour majesty unto the lord chancellor of Eng-said, and that you cause the said Bartholomew land for the awarding of a writ under the great seal of England to the sheriff of the city of London, for the burning of Bartholomew Legatt, who is convicted of divers horrible heresies before the bishop of Loudon, and by his sentence left to the secular power, as is by the said bishop certified to your majesty into your highness's court of Chancery. And is done by force of your majesty's commandment to me given under your highness's sign-manual. Legatt to be really burned in the same fire, in A Narration of the Burning of Edward James R. James, by the Grace of God, HENRY HIBIRTE. King of England, Scotland, France and Ireland, The King to the Sheriffs of London, greeting. Defender of the Faith, &c. To our right trusty Whereas the reverend father in Christ, John, and right well-beloved Counsellor, Thomas, bishop of London, hath signified unto us, that, lord Ellesmere, our chancellor of England, when he in a certain business of heretical pra- Greeting, Whereas the reverend father in vity against one Bartholomew Legatt, our sub- God, Richard, bishop of Coventry and Lichfield, ject, of the city of London, of the said bishop having judicially proceeded in the examination, of London's diocess and jurisdiction, rightly and hearing, and determining, of a cause of heresy lawfully proceeding, by acts enacted, drawn, pro- against Edward Wightman, of the parish of posed, and by the confessions of the said Bar-Burton upon Trent, in the diocess of Coventry tholomew Legatt, before the said bishop judi- and Lichfield, concerning the wicked heresies cially made and acknowledged, hath found the of the Ebionites, Cerinthiaus, Valentinians, said Bartholomew Legatt very many wicked Arians, Macedonians, of Simon Magus, of | |