Lives by Fictions I hope such Popish Fictions will no longer be suffer'd in Protestant Courts of Justice Coke saith From the taking away of Oaths for the truth of the cause of Essoin by the Statute of Marlebridge cap. 12. there arose after Fourcher per Essoin by several Tenants alternis vicibus and making false Essoins ultra mare all endeavour'd to be taken away by Westm 1. cap. 43. 44. but when a mischief comes by making an ill Law or Statute it is never cleanly cured by after Statutes of Explanation or Limitation without clean repealing again the Statute which causeth the mischief additions of new Patches to old Garments making the Rent but worse Fictions in Essoins The mischief of Fictions of Husband and Wife to be but one Person have been sufficiently shewn P. 66 67. Fictions de Plus petitionibus In the Common-Law Declarations the next Fictions for want of the Oath of Calumny are de Plus Petitionibus Conrad 405. saith Olim triplum condemnabantur qui majorem Summam in libello assignaverant quam reus debebat but in more ancient times I find they forfeited only the Tenth part which with an Oath of Calumny might be now sufficient to restrain the lawless laying of Debt and Damage in their Declarations an Hundred times more than it is which is very mischievous and dangerous to Defendants when Plaintiffs pack and bribe Juries and they happen to misplead make defaults or have other Casualties fallen on them whereby they cannot attend their Suits Dr. Cowell says The Civilians are in no danger de Plus Petitionibus by reason of certain Cautelous Clauses they ordinarily have at the end of every Position or Article of their Libel or Declaration to this effect Et ponit conjunctim divisim de quolibet detali tanta quantitate vel summa qualis quanta per Confessionem partis adversae vel per probationes Legitimas in fine litis apparebit and again in the conclusion of all Non astringens se ad singula probanda sed petens ut quatenus probaverit in praemissis aut eorune aliquo eatenus obtineat But Civilians and Canonists make their Laws like Juglers-knots to tie with one finger and untie with the other they make a great noise of their Oath of Calumny and de Plm Petitionibus and by these secret Clauses in their Libels make it all again to no purpose All the Common Law Writs of Questus est nobis are now grown Fictions and Declarations Licet saepius Requisitus are likewise Fictions whereby men are surprized by Arrests before any Demand made the Inde producit sectam in the end of the Plaintiffs Declaration is now turned a Fiction which was heretofore a legal proof of Witness produced to prove his Declaration for the better Caution against the false Calumnies of Plaintiffs the former Taking of Pledges of the Plaintiff is now turned to a Fiction of Plegii de prosequendo John Doe and Richard Roe the Counter-pledges exacted of the Defendant are now turned to a Fiction John Den and Richard Fen. Courts of Justice compel to Fictions and Falsities It doth not satisfie Courts of Justice to tolerate Fictions and Falsity but they compel to them as the Defendant shall be compell'd to give colour a meer insensible Fiction and Lie he shall be compell'd at Common Law to answer Negatively or Affirmatively as if he were Omniscient and shall not be permitted to say Dubito or Ignoro though Juries of greater number may all say Ignoramus he shall be compell'd to a Plus petitio to avoid a Variance between his Obligation and his Declaration as Bro. Confess 37. If a man Sue an Obligation for Ten Pounds and the Defendant confesseth all except Forty Shillings whereof he sheweth an Acquittance the Plaintiff prays Judgment and says nothing of his Acquittance for if he confess it his Writ should have abated Fictions of Acts made the first day of the Session If an Act of Parliament come before them to judg when it was made they will judg it by Fiction to be made the first day of the Session 33. H. 6.17 the Case was this In the Exchequer-Chamber Fortescue Rehearsed how the Parliament last past made a special Act against John Pilkington Esq for the Rape of a Woman out of N. c. and Rehearsed the effect of the Act and how by the same Process was granted to be made to the Sheriff of E to make certain proclamations in a Ville that the said John ought to appear before the Lords at W. at a certain day c. to answer to the Trespass contained in the said Act c. and if he would not that then he should be attaint of the Trespass and pay a certain Sum to the Party c. and that the Proclamations were accordingly made and returned into Chancery and the said John made no Appearance c. and after the said John was taken and in the Kings-Bench committed to the Marshals-Ward for certain Causes on which a Transcript of the Act and a Mittimus was sent out of the Chancery directed to us c. whereupon the Marshal was charged with him for the same Condemnation contained in the Act and the said Prisoner comes now and alledges by his Councel That the Act of Parliament is not sufficient and therefore prays to be discharged c. for the Bill being directed to the Commons pass'd them well and was endorsed in this Form Let it be delivered to the Lords but whereas the Bill was That the said John should render himself before the Feast of Pentecost next ensuing the Lords endorsed the Bill in this Form The Lords grant that in case he appear not before the Feast of Pentecost which shall be Anno Domini 1452. c. to wit at Pentecost next after the Feast contained in the Bill And therefore the Lords granted a longer day then was granted by the Commons in which Case the Commons ought to have had the Bill deliver'd back again to them and they to have assented to the Grant of the Lords which was not done and therefore such Act of Parliament is void Fortescue It seems we ought to intend no otherwise but that the Act is good for the King hath written to us by his Writ and hath certified unto us That the Bill is confirmed by Authority of Parliament Illingworth Chief Baron This cannot here be intended as you say for the Writ which is made only by a Clerk of the Chancery cannot make an Act of Parliament good if it be vicious in it self c. And afterwards he sent for Kirkby keeper of the Rolls and for Faukes Clerk of the Parliament Fortescue Rehearsed the matter to them both on which Kirkby Sir The course of the Parliament is this c. But if any Bill is particular or other Bill which is first deliver'd to the Commons and pass'd they use to endorse the Bill in this Form Let it be
them cleérly frustrate and dissolved Further also by reason of other Prohibitions then God's Law admitteth for their lucre by that Court invented the dispensation whereof they always reserved to themselves as in kindred or affinity betweén Cousin-germans and so to the fourth degreé carnal knowledge of any of the same kin or affinity before in such outward degreés which else were lawful and be not prohibited by God's-Law and because they would get money by it keep a reputation of their usurped Iurisdiction whereby not only much discord between lawful married persons hath contrary to God's ordinance arisen much debate and suits at Law with wrongful vexation and great damage of the Innocent party hath been procured and many just Marriages brought in doubt and danger of undoing and also many times undone and lawful Heirs disherited whereof there had never else but for his vain-glorious usurpation beén moved any such question since freédom in them was given us by God's Law which ought to be most sure and certain But that notwithstanding marriages have been brought into such an uncertainty thereby that no marriage could be surely knit and bounden but it should lye in either of the parties power and arbiter casting away the fear of God by means and compasses to prove a pre-contract a kindred and alliance or a carnal knowledge to defeat the same and so under the pretence of these allegations afore rehearsed to live all the days of their lives in detestable adultery to the utter destruction of their own Souls and provocation of the terrible wrath of God upon the places where such abominations were used and suffer'd Be it therefore Enacted by the King our Soveraign Lord the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the Authority of the same That from the first day of the Month July next coming in the year of our Lord God 1540. All and every such Marriages as within this Church of England shall be Contracted betweén lawful Persons as by this Act we declare all Persons to be lawful that be not prohibited by God's Law to marry such Marriages being Contract and Solemnized in the face of the Church and Consummate with Bodily knowledge or fruit of Children or Child being had therein betweén the parties so married shall be by Authority of this present Parliament aforesaid Deémed Iudged and taken to be Lawful Good Iust and Indissolvable notwithstanding any pre-contract or pre-contracts of Matrimony not Consummate with Bodily knowledge which either of the parties so married or both shall have made with any other person or persons before the time of Contracting that Marriage which is Solemnized and Consummate or whereof such fruit is ensued or may ensue as afore and notwithstanding any Dispensation Prescription Law or other thing granted or confirmed by Act or otherwise And that no reservation or prohibition God's Law except shall trouble or impeach any Marriage without the Levitical degrees And that no person of what estate degreé or condition soever he or she be shall after the first day of the Month of July aforesaid be admitted to any of the Spiritual Courts within this the King's Realm or any his Graces other Lands and Dominions to any Process or Plea or Allegation contrary to this aforesaid Act. 1. Here it appears what a necessary stroke this Act gave against the usurped power of Ecclesiastical Laws and Jurisdiction in this and other points of Marriage forbidding any Spiritual Courts within this Realm or any his other Lands and Dominions to admit any Process Plea or Allegation contrary to this Act. And although hereby one of the heads of Ecclesiastical Jurisdiction was as is said of the Beasts Rev. 13.3 as it were wounded to death yet so great was the subtilty of the Serpent that the Ecclesiastics soon after by abusing the minority of that most pious though young King Edward the Sixth got all what the wisdom and courage of his Father had Enacted against them repealed by the Son 2 3 Ed. 6. cap. 23. Edward the Sixth abused by Papists in his Minority to repeal his Father's Act of Precontracts And thinking themselves therein not sufficiently secure they again procured the same to be repealed by 1 Eliz. 1. In which repeals I can see nothing but a Papist Plot against them both to revive those Ecclesiastical Laws by their own Authority against themselves which might have yielded most dangerous pretences against their own Legitimations and Marriages and Issue if they had happen'd to have had any For certainly no Marriage or Issue can be secure or certain if any fraudulent person may secretly pre-contract or pre-copulate with any vile person and take Bonds of him or her to release the same upon request and then marry another person Ignorant and Innocent and have Children procreate between them and then cause the party who had the pre-contract or pre-copulation to sue and obtain a Divorce against the Innocent person to be Divorced and Children Bastardized and Disinherited and then to give a release to the party conspiring in the fraud How is it possible to avoid this wickedness if pre-contract or pre-copulation should be allowed a sufficient cause to dissolve Marriage Consummate by the Birth of a Child And how is it possible propriety to be if a distinction be not kept between it and contract and between obligation and possession according to the old Rule of Law Rem Domino vel non Domino vendente duobus in jure est potior traditione prior And the Rule of the Civil Law and fundamental of all Nations who have propriety Obligatio non impedit translationem Dominii sed translatio Dominii praecedens impedit obligationem l. si quidem 1. C. de donat inter virum Notwithstanding all which Reasons preceding and likewise those in the mention'd Act of H. 8. The Ecclesiastics though straining their Wits and Eloquence to the highest in the Act of repeal by Ed. 6. yet cannot alledge the least reason except only this That if pre-contract should not dissolve Marriage the parties might part from one another at the Church door and then the Wedding Dinner would be spoiled which surely may be sufficiently and over satisfied by recompence in value were it a Half-Crown Ordinary But a lost Virginity to an Innocent Woman who was married bona fide and knew nothing of this pre-contract and her Child can never be repaired if the Marriage be dissolved Nulla reparabilis Arte Laesa pudicitia est deperit illa semel Propert. The Act of Repeal of the said most excellent Law of Henry the Eighth against pre-contracts follows 2 3 Ed. 6. cap. 23. 2 3 Ed. 6. cap. 23. WHereas in the 32 year of the Reign of the late King of famous memory King Henry the Eighth Because that many inconveniences had chanced in this Realm by breaking and dissolving of good and lawful Marriages yea whereupon also sometimes Issue and Children had followed under
deliver'd to the Lords and if the King and the Lords agree to the Bill without changing it then they use not to endorse the Bill but the same is deliver'd to the Clerk of the Parliament to be Inrolled and if it be a Common Bill it shall be Inrolled and enacted but if it be a particular Bill it shall not be Inrolled but Filed on a File and it is well enough but if the Party will Sue to have the same Enter'd for his better Security it is well enough it may be Inroll'd and if the Lords will alter the Bill that which may stand with the Grant of the Commons shall not be deliver'd back to them as if they will grant Tonnage and Poundage for Four Years and the Lords grant them only for Two Years this shall not be redeliver'd to the Commons because 't is consistent with their Grant but if Vice Versa the Commons grant for Two Years and the Lords for Four then the same must be redeliver'd to the Commons for their Assent c. Faukes Sir the Case was thus The Bill was put into the Commons after the Feast of Pentecost which was in Parliament time and the intent of the Bill was That the Proclamations should last till the Feast of Pentecost then next ensuing which was Anno 1452. but every Bill of Parliament shall have Relation to the first day of the Session of Parliament though it be put in at the latter end therefore the Lords granted according to the intention of the Bill Prisot Are you certain that the Bill was deliver'd after the Feast of Pentecost which was in Parliament time or not Faukes Truly I do think so c. Markham Do you use to make Inrollment of the Day when you first receive the Bills Faukes No Sir Markham Verily this is a Perilous thing for the Court of Parliament is the Most High Court the King hath and it were well done if every Act and Thing there done which is material and reason of it were Inrolled c. For in this Case if the Bill pass'd the Commons and the Lords in the manner aforesaid before the Feast of Pentecost then the Act is void because of the variance of the Endorsement of the Day by the Lords c. From the Bill c. And it was not redeliver'd to the Commons but it was deliver'd after the Feast of Pentecost then it seems they are agreed for all is one day wherefore this matter cannot determine one way or the other by your Record who are the Clerk c. And now we can give no other credit to what is said but that the Bill was deliver'd the first day of the Parliament c. Fortescue This is an Act of Parliament and we will be well advised before we make void any Act of Parliament and peradventure the matter ought to rest till the next Parliament and then we may be certified by them of the certainty of the matter but however we will be well advised what to do c. This Fiction and the Inconveniences of the same are very well Reformed by an Act of Parliament of Scotland Jac. 6. P. 7. Cap. 121. FOrsameilk as it is understand to the Kingis Majestie and Threé Estaites of Parliament that oftentimes Doubtes and Questions arisis touching the Proclamation of the Actes of Parliament and Publication thereof it being sometime alledged by the Lieges that they are not bound to observe and keép the samin as Laws nor incur ony paines conteined therein quhill the same be Proclaimed at the Mercat Croces of the head Burrowes of all Schires For remeding of quhilkis Doubts in time cumming It is Statute and Ordained be our Soveraine Lord and Estaites of this present Parliament That all Actes and Statutes of Parliament maid at this time and sal happen to be maid at onie time hereafter sall be Published and Proclaimed at the Mercat Croce of Edinburgh only quhilk Publication our Soverain Lord and Estaites foirsaidis decernis and declaris to be al 's ratiable and sufficient as the samin were Published at the head Burrowes of the haill Schires within this Realm And alswa declaris the haill Lieges to be bounden and astricted to the obedience of the saides Actes as Laws Forty Dayes after the Publication of the samin at the saide Mercat Croce of Edinburgh being by-past Fictions of Members of Parliament Resident and Native By the Statute of 1. H. 5. cap. 1. It is Enacted That the Knights of the Shires which from henceforth shall be chosen in every Shire be not chosen unless they be Resident within the Shire where they shall be chosen the day of the date of the Writ of the Summons of the Parliament and that the Knights and Esquires and others which shall be choosers of those Knights of the Shires be also Resident within the same Shires in manner and form as is aforesaid And moreover it is Ordained and Established That the Citizens and Burgesses be chosen of the City and Burrows Men Citizens and Burgesses Resiant dwelling and Freé of the same City and Burrows and no other in any wise And as though this were not sufficient for Excluding Foreigners from Elections It is Enacted further by 23. H. 6.15 That the Knights of Shires for the Parliament hereafter to be chosen shall be notable Knights of the same Counties for the which they shall be chosen or otherwise such notable Esquires and Gentlemen born of the same Counties as shall be able to be Knights So by these two Acts of Parliament it is Enacted None shall be chosen for Knights of Shires but such as are both Residents and Natives of the Shires for which they serve Acts of most high Wisdom and Justice but alas now both Residents and Natives being in practice only turned to Fictions what defence are they to the Subjects in what all they have is concerned the Election of an equal and faithful Representative against the Two Hundred Thousand Pounds discover'd in the Letters of the late Horrible Popish Plotters to pois on all the Elections of Parliament-men through the Kingdom by buying of their Places to Papists and their Adherents Pensioners to Rome and France to sell the most Protestant King Religion and Three Kingdoms for a Spoil to Foreiners and to place such Sheriffs as may in tendency thereto by Fictions of their Returns that the Free-holders Vt major pars totius Comitatus praedict ' tunc ibidem existen ' jurat ' examinat ' Secundum vim formam effectum diversorum statutorum inde edit ' provisorum Eligerunt A. B. milit ' C. D. milit ' infra Comitat ' praedict ' commorantes c. Now if these Knights are not infra Comitat ' praedict ' commorantes Residents of the County and Secundum vim formam effectum Statutorum c. Especially of the 23. H. 6.15 Natives of the County this Return is Fictitious and False and utterly unlawful contrary to the Sheriffs Oath and for which
neither granted by God nor a Good Angel for God never sells his Mercies for Money And this was the Theology of Simon Magus a Magician to think the Holy Ghost might be bought with Money to which was made a Tart Answer Act. 8.20 Peter said unto him Thy money perish with thee because thou hast thought that the Gift of God may be purchased with money And Christ gives express Command to his Disciples Missionated by him with Power of Signs and Miracles to do good to the People Matth. 10.7 Go Preach saying The Kingdom of Heaven is at hand Heal the sick cleanse the Lepers raise the dead cast out Devils freely ye have received freely give So Elijah when he had cured Naaman of the Leprosy took no Money of him but punished Gehazi for doing the same 2 Kings 5.20 And Moses when he did provide the Miracle of Manna he did not ask any Money or sell it to those who needed for that had been to have deprived God of thanks for his own Gift And Petrus Quinqueranus Relates That when some Neopolitan Kings had inclosed a place with a Wall which was of great Resort of Poor for the gathering of Manna there that they might be Excluded from gathering unless they paid a Tribute or Impost for the same The Manna suddenly ceased and fell no more and when as the Doors were again set open it fell as before The Place was again the Second Third and many times shut up for Tryal and still when it was shut the Manna fell not at all but when open as at first it Continued to fall Plentifully Camerar Centur. 2. cap. 160. p. 401 402 403. It is not here affirmed That if such as are Preachers or Teachers of the Truth of God receive necessary maintenance for their study and pains in Executing the same unless they pretend to Preach by Inspiration That their Doctrine is from Daemons and not from God for the Labourer is worthy of his Hire and these have not Received their Gift freely but by long study and Paynes but only this is affirmed That if they pretend to any Extraordinary and Miraculous Gift from God or Angels as to be Mediators for Prayers or to keep God under Lock and Key in a Temple and Receive money for Executing the same it is a Manifest sign they have neither their Gift from God nor Good Angels but from Daemons Some that have Writ of Witchcraft say That such as Pray though to God for unlawful things if they succeed and have Their Prayers granted It is a Sign That they have made a Covenant with the Devil for God never grants unlawful Prayers therefore it must be the Devil or Fortune And that a Man may be a Witch yet not know it There being therefore two great Dangers to Pray by a Priest who takes money for his Prayers first That he Prays to Daemons under the Name of God Secondly That he will make unlawful Prayers Quid non mortalia pectora cogit Auri sacra fames Flectere si nequeat superos Acheronta Movebit Should the Doctrine of the Omnipresence spread men would rather Pray to God as Christ Commands in secret and Omnipresentially to whom they may Pray and He Exacts no money of them nor Compels their Consciences to Pray in unlawful Forms or for unlawful Matters rather than Imploy so Chargeable and Dangerous a Mediator who if God is in Person Omnipresent is not only useless but hurtful whereby he will lose all his Money and Hire for his Prayers and the Silver-Smiths of Diana have their Trade utterly spoiled 3 Men would be induced to worship in secret and Omnipresentially to avoid another Danger incident to Prayer by a Priest for the Prayer by a Priest would be in Publick in a Synagogue or Temple which is lyable to a double danger one of Daemons the other of Men to neither of which any Modest or Prudent Petitioner desires to have his Prayers known not to Daemons because he may have Errors and Imperfections in his Prayers which if discovered only to God He is ready to prevent those Dangers he would draw on his own head by his Rash Petitions and like a Father in pity to his Child to forgive them whereas if Discovered to Daemons they if not by God restrained would be ready to grant him success in all the Noxious things he asks to Insnare and Ruin him Not to Men first because for any to confess his private Sins or Enumerate his private Wants or Desires in Publick would but afford matter of Derision to the Heathens Secondly The malice of Men would be apt to wrest all the Words though innocently intended of his Prayers sometimes to Herefie sometimes to Sedition sometimes to Treason it self and the same would kindle the hatred and sometimes provoke the Rage of all Dissentients against him As at Vassy in France Fifteen hundred Protestants being assâ—mbled in a Church on a Sabbath day to Pray and hear the Word of God the Duke of Guise suddenly Compassed the Church with Armed Souldiers himself standing in the Door with a drawn Sword and Cruelly sent his Souldiers who killed all without Distinction of Age or Sex Acts and Mon. 4 Granting the Omnipresence Bishops could not pretend Power to Nâ—ll and Dissolve private Marriage Consummated by Birth of a Child nor separate those at whose Matrimonial Acts God was present as a Witness and Party and thereby joined them not to be put assunder by Man 5 Granting God to be Omnipresent and present in the Internal Sâ—irit and heart of Man and sees and knows thereby all of his thoughts all External Ceremonies of Worship are useless yea the Compulsion to them is the highest Denial of his Internal presence and all the Difference and Distinction taken away how to know the Worship of God from the worship of Men and the Counterfeit Worship from the True for though to the worship of Men External Ceremonies are necessary and the Internal thoughts of the Heart cannot be Express'd to Men but by External acts of the Body yet to God it is otherwise for he being present in the Heart it self it were as Impertinent that the Heart should be Compelled to Pray or Express it's Intentions by External Ceremonies without the Body as to Compel a Vassal when his Prince is in the midst of the House with him to throw his Petiâ—ion out of the Window to be sent to him many Miles off by the Priest who is in the outer Court And as Compulsion to Worshâ—p by the outward Ceremonies of a Priest or a Tempâ—e is unnecessary so is it the way to Compel an Hypocritical and Counterfeit Worship contrary to the Command of Christ Joh. 4.21 Where he talking with the Woman Concerning to the Two Places of Worship the Temple of Samaria and the Temple of Jerusalem Saith Woman believe me the hour cometh when ye shall neither in this mountain nor in Jerusalem worship the Father And vers 23. The hour cometh and now is
whole People is to be intended only where the Case is reduced to that necessity that either one or other must be but in this there is no necessity Trial should be by Certificate of a Bishop at all and though uno absurdo dato mille sequuntur were there a Thousand inconveniences followed if the Certificate of a Bishop should be question'd for falsity it being first granted it belongs to him to make Certificates yet there is no necessity that absurdity should be first granted that it should belong to him to make Certificates for there are ways enough wherein no Inconveniences follow of Trial of Truth without Certificates of Bishops 2. The supposition is repugnant and impossible that any Case should happen or be shewn in the World wherein Fiction or Falsity ought to be suffer'd in Judicial proceeding or where Probation ought not by the Law of God to be admitted against such Fiction and Falsity notwithstanding the corrupt practice of Courts to the contrary and such suffering of a private mischief of that kind to a private Person is so far from preventing a publick Inconvenience that it will bring both a private and publick mischief and destroy both for it is as impossible to separate Truth from Justice as the Light from the Sun 3. That which is alledged for an inconvenience to the publick That one Bishop would make a Certificate contrary to another this is no more publick inconvenience than if Thieves should fall out and true men come by their Goods 4. As to what is said That the Certificate of the Bishop is in this Case the highest Trial in the Law we must distinguish the Law for it was then the Law of Popery was Predominant which gave Supremacy in Causes of Marriage Filiation and Succession to the Bishops above Kings and to the Sentences in Bishops Courts and made them above Appeal to the Kings Courts and the Foundation of that their Supremacy was That then by that Law Marriage was a Sacrament and Penance was a Sacrament but the Law being now changed from Popish to Protestant and the Supremacy being now given by the Protestant Law to the King above the Bishop as well in Causes Matrimonial as in all other Ecclesiastical Causes and the Protestant Religion taking away the two Popish Sacraments of Marriage and Penance which were the only Roots whence the Episcopal Jurisdiction of Marriage and the incidents to the same pretended to sprout Cessante Causa ratione legis cessat Lex the pretended Causes of the Jurisdiction ceasing the Jurisdiction it self ceases whereby now the Certificate of the Bishop is so far from being the highest Trial that it ought to be no Trial at all for the Sacraments ceasing the Jurisdiction ceaseth and the Jurisdiction ceasing the Power of Trial ought likewise to cease 5. For Councel to advise his Client to maintain a false Certificate of the Bishops knowing it to be false is as wicked as for the Bishop to make a false Certificate knowing it to be false or which is impossible for him to know to be true as all relating to Filiation are it being their own Rule Filiatio non potest probari except by the Parents wherefore ex Ore Suo they condemn themselves of false Judgment and are not therefore fit to be Judges 11. They Judg by Ceremonies and not by Circumstances As to the word Ceremonia some will have it derived à Cerere because they used divers Formalities in the Worship of the Goddess Ceres But this is not proper seeing all the Heathen Gods and Goddesses had as many Formalities in their Worship as she others derive it from Cerete a Latine Town whither as saith Valerius Maximus the Flamen Quirinalis and the Vestal Virgins fled with their Trinkets while the Gauls besieged Rome others derive it à Cereis from Torches and Tapers lighted made of Wax which amongst the old Pagans was a great Ceremony used in the Temples of their Gods and at their Marriages but this is likewise improper and only figurative to take species famosior pro toto genere and not natural so it appears the Etymology of it is either unknown or it is it self an Original not derived from any Rites which is a word usually joined with Ceremonies and much of the same Signification some will have derived à Ritualibus now the Rituales were old Magical and Superstitious Books of the Hetruscan Priests by help of which they either conjur'd their Gods or made the People believe so and they had all the Formalities written in them which were to be used at making Marriages at laying the Foundations of a City and how Altars Temples and Houses were to be Consecrated and how their Courts of Justice and Counties and Hundreds were to be divided for in all these the old Pagans used to Consult their Augurs Aruspices Bishops and Priests and were like our Books of Ecclesiastical Canons But it seems rather these ritual Books had their names derived from the Rites whereof they were made a written Collection and not the Rites from the Rituals and so Rites as well as Ceremonies may be words which none knows whence they came or whether they will But to come from the Etymology of the word Ceremony to the thing usually signified by it and the difference between a Ceremony and a Circumstance it seems A Ceremony is an Act accessary joined to a Principal not affecting the Principal Act with Good or Evil by the Law of God A Circumstance is an Act accessary joined with a Principal affecting the same Principal Act with Good or Evil by the Law of God Ceremonies are infinite but Circumstances are usually drawn to Seven Heads 1. The Cause of doing the Act which is divided into four kinds The Efficient Final Material Formal and these again subdivided into others 2. The Person by or with whom the Act was done 3. The Place where it was done 4. The Time when it was done 5. The Quantity continued or discrete 6. The Quality which is manifold 7. The Seventh and last Circumstance is the Event of the Act the Civilians expound very improperly and instance whether the Act is done by Fear Force Error Deceit Fault Chance or the like for how can these which are precedent Causes of the Act and therefore ought to be refer'd to the Cirstumstance of the Causes be said to be the Event of an Act which is always subsequent and not precedent to the Principal Act and in that sense is always used by the best Latinists as Cicero in Rhetor. Things are often judged from the Event than which there is nothing more unjust and the Poets agree in the same Careat Successibus opto Quisquis ab Eventu facta notanda putat Eventus Belli incertus wherein it is used for the Fortune and Success following the Battel and not the Fortune or Chance which began or occasion'd it So the Common Law in punishing the Event as the death of any Man within a Day or
Year after his being wounded or beaten punisheth only the Event of an unlawful Act of wounding or beating not of lawful which Event is subsequent and not preceding to the Act. So likewise the Scripture useth the word Event for what follows and not for what precedes as Eccles 2.14 One Event happeneth to them all And Eccles 9.2 There is one Event to the Righteous and to the Wicked And Verse 11. Ireturned and saw under the Sun that the Race is not to the Swift nor the Battel to the Strong neither yet Bread to the Wise nor Riches to men of Vnderstanding nor yet Favour to men of Skill but Time and Chance happeneth to them all Man purposeth but God disposeth Events are only in the Power of God Ceremonies and Circumstances in this agree 1. That they are both accessary and not the Principal Acts. 2. That when single they may be neither good nor evil but when join'd with another Act they may become either good or evil 3. They may be in some junctures each the Principal and in other the accessary Act. 4. In some junctures each may be good in other evil and in a third neither good nor evil that is neither be Ceremonies nor Circumstances 5. In this Ceremonies and Circumstances agree that they have been used and abused in all Affairs and Acts both Civil Military and Religious but I shall here only insist on such Ceremonies as have been abused and compel'd by Pagan and Episcopal Canons in relation to Marriage Ceremonies and Circumstances in this differ 1. Ceremonies and Circumstances differ That Marriage and other Acts are impossible to be done without Circumstances but the same is possible to be done without Ceremonies 2. Ceremonies are always Acts external and made the objects of the external Senses of Witnesses and are of no Use in Marriage but the gains of the Priest where Witnesses are unlawful as in Carnal knowledg or impossible as in Filiation as is already proved P. 104 105. But Circumstances of Marriage may be both external or internal and invisible External as Youth Age Sexes Health Sickness Plurality Unity Internal and Invisible as Religion Conscience Vertue Vice Love Hatred and the like Ceremonies make Acts gawdy which they call decent or deformed before men but Circumstances only make them so before God 3. All Ceremonials are Artificial and not Natural but Circumstances may be both Artificial and Natural 4. No Ceremonies in Marriage are Commanded or Prohibited in the Moral Law of God but many Circumstances are Commanded and many Prohibited in the same Moral Law 5. God is the Author of all Natural and Moral Circumstances which make Marriage lawful or unlawful but the Devil is the Author of Ceremonies where is no Miracle or sign of Mission from God And it hath been before shewn the compulsion to Ceremonies of Marriage came from Daemons and Priests of Priapus and Venus and such as judg Marriage by such Ceremonies come not from God 6. Ceremony is a matter of Formality in Judgment but Circumstance if any is the matter of Substance To conclude it is a thing so absurd to judg by Ceremonies above Circumstances and by Formalities above Substance that never any Lawyer was so shameless to maintain in writing or lay any such Principle in judicial Proceâ—dings to be equal though by the Corruption of Practice not only in Marriage but in all things else The Truth and Substance of Religion and Justice hath been utterly lost and destroyed in an heap of Ceremonies and Formalities invented only for the gains of such Judges as would for that end with such Empty-nothings pretend to wâ—igh Right and Wrong For the Law of man can not make any Ceremony or other matter to be Substance which the Law of God and Nature hath made an Accident or make that Moral which God hath made to be only Ceremonial or make that Act Good or Evil in it self or to affect anoâ—her Act with Good or Evil for to make Moral Good or Evil or a Law for it belongs only to Supream Power Isa 45 7. I form the Light and create Darkness I make Peace and create Evil. Otherwise he were not Legislator of the World Of the manifold Mischiefs which insue by Compulsion to Marry by the particular Ceremonies of a Priest or a Temple It is not here affirmed That 't is unlawful to Marry by a Priest or in a Temple but it is only affirmed That 't is unlawful to compel any so to do by Penalties and especially by so unjust Penalties as is done by the Popish and Eplsâ—opal Canons of making Marriages Null or illegitimating the Children and that 't is unlawful for Bishops to judg Marriages Null or make Certificates of Ne unques accouple in Loyal Matrimony concerning the Parents or of illegitimation of the Child for no other cause than the omission or defect of so frivolous a Ceremony as a Priest or a Temple and that such affirmance is not without cause may appear from the manifold mischiefs which follow Compulsion of the same 1. It compels to enter into an indissoluble Obligation before the Parties can know each other whether they are fit for Marriage or no. Mischiefs of Verbal Espousals before Real Knowledg Proh Deum aâ—que hominum fidem quae haec contumelia est uxorem decrevit sese darâ— mihi hodie nonne oporâ—et prascisse me ante nonne Communicatam oportuiâ— Ter. And. 1. Act. Scen. 5. Oh the Faith of Gods and Men what a scorn is this He hath Decreed to put a Wife upon me to Day should I not first know her should I not first talk with her This Custom of Verbal Precontracts was in ancient time much used amongst the Jews and Marriage delayed a long time after as Jacob's was with Rachel for Seven Years But the later Rabbles finding many great inconveniences in the same injoined if it were at all the same should be a very little while before the Marriage In like manner the Armenians who are of the Greek Church Contract and Espouse together their Children at two or three Years old yea often times the Mothers agree a Marriage between their Children if one happen to be a Male and the other a Female while they are in their Bellies Tavernier Woman deluded This Custom of Precontracts and Espousals is likewise used though not between Children so young as with the Armenians by the Canon Law and most wickedly allowed to be a sufficient Cause of Nulling a Marriage Consummate by Carnal knowledg and Birth of a Child and illegitimation of the same Child of an innocent Person altogether ignorant of such Precontracts Vid. plus of Precontract before P. 88 94 95 c. 1. The inconveniences of Precontracts and Espousals is that when Contracted the one especially the Man delays and deludes the other so long that one chief end of Marriage which is prevention of Fornication is defeated and many times Women are kept along with Promises all their life time and the Man in