who ought only to stand to Caesar's Judgment Seat and to be tried per legale judicium parium for the same According to this principle Henry the first Pope Paschal seeking to incroach on the liberty of the Kingdom writes unto him in this manner Netum habeat sanctitas vestra quod me vivente auxiliante deo dignitates usus Regni nostri Angliae non imminuentur si ego quod absit in tanta me dejectione ponerem Optimates mei totus Angliae populus id nullo modo paterentur Let your Holiness know that by God's help while I live the Dignities and Customs of our Kingdom of England shall not be diminished and though I which God forbid should suffer my self to fall into so dejected a condition my Nobles and whole People of England will never suffer it Object 7 It is further objected in behalf of Trial of marriage by Ecclesiastical Laws that by the Statute of 25 H. 8. c. 19. which gives power to the King to appoint 32 persons to examin the Canons and to continue such as they think fit and abridge the rest It is provided That such Canons Constitutions Ordinances and Synodical Provincials being already made which be not contrariant or repugnant to the Laws Statutes and Customs of this Realm nor to the damage or hurt of the King's Prerogative Royal shall now still be used and executed as they were before the making of this Act till such time as they be viewed searched or otherwise order'd and determined by the said 32 persons or the most part of them which Statute is revived 1 Eliz. 1. To which is answer'd That 1. what is contrariant or repugnant to the Law of God is made void without this proviso and the assuming the Jurisdiction of marriage and dividing Inheritances insuing thereby is before proved to be Anti-Christian for Spiritual persons who alledge themselves Successors of Christ and much more therefore the assuming the Legislative power or giving Laws or Canons for the same 2. It is shewen likewise before that the same power of Legislation and Jurisdiction concerning marriage was usurped by Fire and Faggot and Excommunication and therefore their Canons concerning marriage are not intended or if they were yet this proviso cannot Lawfully preserve such usurpations so contrary to the Law of God 3. It is manifest that all Ecclesiastical Jurisdiction and Laws and Canons of marriage are contrariant and repugnant to the Laws Statutes and Customs of this Realm as First the Canons then made were That marriage should be a Sacrament and thereby draw to it self Ecclesiastical Jurisdiction which latter Acts of Parliament establishing the Protestant Religion doth thereby abolish the being of marriage a Sacrament and consequently the Jurisdiction Ecclesiastical incident to it as a Sacrament and the Canons which make it so or give any Ecclesiastical Jurisdiction relating to the same 4. All Ecclesiastical Canons of marriage are contrariant and repugnant to Magna Charta and draw the Subject from his liberty propriety and Birth-right ad alias leges aliud examen and aliud judicium then legale judicium parium which Magna Charta of liberties to the Subject hath been confirmed by several Kings succeeding above thirty times Object 8 It is objected Admit there is no Act of Parliament gives Ecclesiastical Courts Jurisdiction of Marriage yet the unwritten Law of Use and Custom which is the Common Law of England and so long toleration gives it To which may be answer'd That by the Canon Laws Malus usus abolendus besides there was never any use of Jurisdiction of marriage in the Ecclesiastical Courts otherwise then in reference to the same as being a Sacrament which being now taken away cessante causa ratione legis cessat lex So likewise where the thing which a Use or Custom concerns is but changed the Use and Custom vanisheth as if by custom a Rate Tith be paid for two Fulling Mills in one House and one of them is changed to a Corn Mill the custom is gone But besides this being malus usus is of it self void and were it never so long used can never grow to have the obligation of the Common Law or to be thereby the Common Law As was well answered by a young Gentleman when complaint was made in Parliament against the wrongful incroachments of the Ecclesiasticks and they alledged for themselves That they had used and accustomed time out of mind to practise what was excepted against He reply'd So have Thieves at Shooter's Hill used time out of mind to Rob there yet the Law allows no such prescription nor doth the forced Toleration of their wickedness by such people as were not able to resist their Robberies oblige Successors to follow their precedents Reasons against Ecclesiastical Laws concerning Marriage 1. Ecclesiastical Laws of Marriage came from the Devils c. The first Reason against Ecclesiastical Laws is in regard of the wicked Authors for all the Laws by which Bishops judge Marriage Filiation Aliment and Succession were invented by Daemons Pagan Gods and Goddesses Magicians Aruspices Astrologers South-sayers Priests of Priapus and Venus Jupiter Juno Cybele Flora Diana common Prostitutes Popish Saints Popish Councils Popes or Papists The Canon prohibiting and nulling all Marriage without a Priest in a Temple except by the Pope's good License or Dispensation was made by the Pope and the Council of Trent as appears Ego Concil 147. pt 5. Concil 197. pt 6. as a main Pillar to support their tottering Kingdom against the growing strength of the then Lutheran Protestants All marriage Preists instituted in the Mysteries of Priapus and they took their pious precedents from the old Pagan Priests of Priapus and Venus and they had it from their Damons or Devils That all the ancient Pagan Priests were first initiated in the Mysteries of Priapus before they could be capable to execute the Priests office cannot be denied and is testified by divers Authors and particularly by Cornelius Agrippa de van Sci. p. 738. in these words Sordidissimus Priapus pro Deo habitus hunc coluerunt primi illi Religionum artifices Chaldaei Aegyptii Assyrii Babylonii Arâ—bes Scythae Aethiopes ac perinde tota Africa Asia Europa nec fas erat ullum sacerdotem fieri qui Priapi sacris non erat initiatus Hic est ille Belphegor idolum omnium antiquissimum quod Chamos dictum est à Chamo filio Noe. The filthy Priapus was estemed a God and was worshiped by those first founders of Religion the Chaldeans Egyptians Assyrians Babylonians Arabians Scythians Phoenicians Ethiopians and even all Africa Asia and Europe neither was it lawful for any to be a Priest unless he were first initiated in the Rites of Priapus This is that Belphegor of all other Idols the most ancient which is likewise called Chamos of Cham the Son of Noah Now this was the Law of these Priests for the wicked ends which are after mentioned Dispensation with Incest came
cùm vix esset dare causam quin ratione peccati possit deferri ad Ecclesiam Object 3 Stat. Merton gives them no Jurisdiction It 's alledged That it appears by the Statute of Merton that Henry the Third writ in his time to the Bishop to certifie Marriage and Bastardy First It is to be understood therefore that in the time of Pope Alexander the Third Anno Dom. 1160. which was Anno 6. H. 2. in whose time all Matrimonial Causes beonged to the King's Courts This Constitution was made That Children born before Solemnization of Matrimony where Matrimony followed should be as Legitimate to inherit to their Ancestors as those that were born after Matrimony It is likewise further to be known that King John the Father of Henry the Third who made this Statute of Merton following was by the then Pope Innocent Excommunicated King John Excommunicated as likewise at the same time was the Emperor Otho and the whole Kingdom of England Interdicted and so remained for the space of Six Years Three Months and Fourteen Days during all which time there was no Church open for Marriages or Burials but the poorer People were buried like Dogs in Ditches and where they married God knows Through which King John was driven to such distress by his own Bishops and Barons and the French assisting the Pope against him that he was forced before he could get to be released of this Excommunication to pay the Pope vast Sums of Money and to lay down his Crown and Scepter Mantle Sword and Ring the Ensigns of his Royalty at the feet of Pandolphus the Pope's Legat and submit himself to the Mercy and Judgment of the Church Two Days some write Six it was before the Legat restored him to his Crown which he likewise received again on no better Terms then to hold the Kingdom of England and Lordship of Ireland from the See of Rome at the Annual Tribute of a Thousand Marks Silver and the Excommunication was not to be taken off but deferred till further and full satisfaction was made to the Clergy which was not done till Two Years after The Bishops being hereby arrived at so great an height of their Tyrannical Power over this King The Bishops usurped the exercise of Ecclesistical Laws by force over their Kings As that when the King having obtained absolution had gather'd a great Army to have been revenged on the French King the Arch-Bishop of Canterbury told him 't was against his Oath at his Absolution and the King in a great passion reply'd He would not defer the Business for his pleasure seeing Lay-judgment appertained not to him the Arch-Bishop presumed to threaten his native Soveraign that unless he desisted he would Excommunicate him Note therefore That in the time of H. 3. who was the Eldest Son of King John the Bishops continued to assume the Power of Lay-judments as well in Marriages as they did of shutting up of Churches in which they were made from the Pope to whom they had inforced King John to surrender his Crown and not from the King 's Writ as that Statute of Merton shews rather a proud Renunciation and scorn to answer the King 's Writ concerning Marriage then any use permitted by them to the King of the same unless he would as his Father had done lay down again his Crown to them and have Marriage judg'd according to the Law of the Pope for otherwise they tell him plainly They neither will nor can answer his Writ as appears by the Statute it self the words whereof follow 20 H. 3. Cap. 9. To the King 's Writ of Bastardy Whether one being born before Matrimony may Inherit in like manner as he that is born after Matrimony All the Bishops answer'd That they would not nor could not answer to it because it was directly against the common Order of the Church that is meant the Romish Church And all the Bishops instanted the Lords that they would consent that all such as were born afore Matrimony should be Legitimated as well as they who were born within Matrimony as to the succession of Inheritance for so much as the Church accepteth such for Legitimate And all the Earls and Barons answer'd with one voice That they would not change the Laws of the Realm which hitherto have been used and approved Coke 2 part Inst 97. It is said Though the Bishops are Spiritual Persons yet in case of general Bastardy when the King writes to them to certifie who is lawful Heir to any Lands or other Inheritances they ought to certifie according to the Law and Custom of England and not according to the Roman Canons and Constitutions yet if they do make their Certificate according to the Canon Law No remedy against Bishops making Certificates contrary to the King's Laws General Bastardy uâ—urped by Bishops not given them by Law and not the Law of the Land there appears no Remedy unless such a one as is worse then the Disease Sir Galfred le Scrope Cheif Justice saith Before this Statute of Merton the Party pleaded not general Bastardy but that he was born out of Espousals and the Bishop ought to certifie whether he were born before Espousals or not and according to that Certificate to proceed to Judgment according to the Law of the Land And the Prelates answered That they could not nor would not to this Writ answer and therefore ever since special Bastardy viz. that the Defendant c. was born before Espousals hath been Try'd in the King's Courts and general Bastardy in the Bishops Court and herewith agree out old Books and the constant Opinion of the Judges ever since Coke 2 part Inst 99. It being before granted That the Law of England cannot be changed but by an Act of Parliament and Magna Charta being before made and being a Declaration of the ancient Common Law First That no Freeman was to be put out of his Free-hold or Inheritance but per legale Judicium parium and there being no cause of its own Nature more Temporal or more concerning Succession to Temporal Inheritance then Marriage It was contrary to Magna Charta and the Common Law to judg the Fact of it by any other Judges then Juries and the Law of it by any other Judges then those of Temporal Courts and though the Pope and Bishops in those Superstitious times forced the Kings many times as they did King John to yeild his Crown and the Subjects to yeild their Marriages and other Temporal Rights to their Arbitrary and Saleable Sentence for fear of Excommunication yet doth not this any way prove that the Jurisdiction of Marriage was ever granted them by any Law or Act of Parliament or could be without it were contrary to a known Common Law and Act of Parliament which expressly gave the trial of Temporal Rights and Inheritances to a Legale Judicium parium and not to any Ecclesiastical Judges or Laws Now therefore it being clear they had
not to be objected against us because we are not subject to Foraign Laws Again that custom or use of Civil or Canon-Laws or Precedents doth not make Civil or Canon-Law the Law of England appears by the use of Sentences of Philosophers and Poets and Precedents of Historians all as much used in Courts of Records of Courts of Judicature as the Civil or Canon-Law yet doth not this use or custom make these Sentences of Philosophy and Poets and the like to be the Law of England or obligatory to the People of England unless such Sentences of Philosophers and Poets are selected from the rest and inacted or confirmed by Act of Parliament to be hereafter the Laws of England And they are so far otherwise from being Laws of England that Cardinal Woolsey Mich. 21. H. 8. Coram Rege was Indicted That he intended Antiquissimas Angliae Leges penitus subvertere enervare universumque hoc Regnum Angliae ejusdem Regni populum Legibus imperialibus vulgo dictis Legibus Civilibus earundem Legum Canonibus in perpetuum subjugare subducere c Let any shew a sensible reason why the Bishops and Ecclesiastical Judges who actually bring in the whole heap of Civil and Canon Laws to judge of the Marriages Filiation and Succession of the Subjects and amongst them the new coin'd Law at the Council of Trent made when Forein Jurisdiction was abolish'd and thereby actually deprive him of that invaluable liberty to which every Native Subject is born and is confirmed to him by so many Acts of Parliament And those great Fundamental Acts Magna Charta and the Petition of Right to have his Birth-right tried per legale judicium parium deserve not as high a censure by Parliament as Cardinal Woolsey had who only intended to do the same And if any hath any mind to consult besides the Laws and Precedents against Forein Laws and Precedents Bod. lib. 1. of a Common-wealth fo 107 108. will give him some satisfaction Forein Laws become not the Laws of this Land by being used by Lawyers where he saith It was in most strong Terms judged by a Decree in the Court of Paris in the Case of Philip the Second the French King That be was not bound unto the customs of the Civil Law at such time as they who were next kindred would have redeemed of him the Countrey of Guyens howbeit that many both think and write the Prince to be bound to that Law for that they think that Law to be Common to all Nations and not Common to any City And yet than the which Law the Romans themselves in some Cases thought nothing more unreasonable But our Ancestors would not have even our Subjects bound to the Roman Laws as we see in the Ancient Records that Philip the Fair erecting the Parliament of Paris and Mompelier declared That they should not be bound unto the Roman Laws And in the erection of Universities the Kings have always declared That their purpose was to have the Civil and Canon Laws in them publickly professed and taught to make use thereof at their discretion but not that the Subjects should be any way bound thereto lest they should seem to derogate from the Laws of their own Countrey by advancing the Laws of strangers And for the same cause Alaricus King of the Goths forbad upon pain of death any Man to alledge the Roman Laws contrary to his Decrees and Ordinances which M. Charles du Moulin my Companion and Ornament of all Lawyers mistaking is therefore with him very angry and in reproach calleth him therefore barbarous howbeit that nothing was therein by Alaricus decreed or done but that which every wise Prince would of good right have decreed and done For Subjects will so long both remember and hope for the Government of Strangers as they are Govern'd by their Laws The like Edict there is of King Charles the Fair and an old Decree of the Court of Paris whereby we are expresly forbidden to alledge the Laws of the Romans against the Laws and Customs of our Ancestors Yea the King of Spain also hath upon Capital pain forbidden any Man to alledge the Roman Laws in confirmation of their own Laws as Oldrad writeth And albeit there was nothing in the Laws and Customs of their Country which differ'd from the Roman Laws yet such is the force of that Edict that all men may understand that the Judges in deciding of the Subjects Causes were not bound unto the Roman Laws And therefore much less the Prince himself who thought it a thing dangerous to have his Subjects bound unto strange Laws And worthy he is to be accounted a Traitor that dares to oppose strange Laws and strange Decrees against the Laws of his own Prince In which doings when the Spaniards did too much offend Stephen King of Spain forbad the Roman Laws to be at all taught in Spain as Polycrates writeth Which was more straightly provided for by King Alphonsus the Tenth who commanded the Magistrates and Judges to come unto the Prince himself and as often as there was nothing written in the Laws of their Country concerning the matter in Question Wherein Baldus is mistaken when he writeth the Italians to be bound to the Roman Laws but the French no otherwise than so far as they should seem unto them to agree with Equity and Reason For the one is as little bound as the other howbeit that Italy Spain the Countries of Province Savoy Languedoc and Lyonnois use the Roman Laws more then other People And that Frederick Barbarossa the Emperour caused the Books of the Roman Laws to be published and taught the greatest part whereof have yet no place in Italy and much less in Germany But there is much difference betwixt a Right and a Law for a Right still without command respecteth nothing but that which is good and upright but a Law importeth a Commandment for the Law is nothing else but the Commandment of a Soveraign using of his Soveraign Power Wherefore then as a Soveraign is not bound unto the Laws of the Greeks nor of any other stranger whatsoever he be no more is he bound unto the Roman Laws more then that they are conformable unto the Law of Nature which is the Law whereunto saith Pindarus all Kings and Princes are subject From which we are not to except either the Pope or the Emperour as some pernicious Flaterers do saying That those two viz. the Pope and the Emperour may of Right without cause take unto themselves the Goods of their Subjects Object 5 Forein Laws cannot be baptized with the name of the King's Laws without act of Parliament As to what is mention'd of baptizing Forein Ecclesiastical Laws by the name of the King 's Ecclesiastical Laws of England he seems still to mistake and puts baptizing by the name where it should have been confirmation by the name and that confirmation too to be given not by the Bishops but the
Parliament Besides there is not de facto that name given for the Ecclesiastical Court is kept in the Bishop's name and not in the King's name And the Bishop takes all the profits and not the King Fain he would mend the matter and says That a Leet is kept in the Lord's name and he hath the profits yet it is the King's Court. It might better been said it was once the King 's before he gave it or sold it to the Lord of the Leet as are many Lands not being Ancient Crown-Lands The King purchases but if he sell again such Lands for valuable considerations the propriety as well as the name of such Lands is then in the buyer and not in the King Therefore though he hath set out his Book as baptized both in Latin and English by the name of de jure Regis Ecclesiastico and of the King 's Ecclesiastical Laws yet with due Reverence to the opinion of so great a Father of the Law it may be said there appears none either to baptize or confirm the name nor any God-father to it but himself Neither will the Title of the King 's Temporal Laws set upon Magna Charta which gives that liberty to every Subject of Tryal of his Birth-right per legale judicium parium be consistent with the Title of the King 's Ecclesiastical Laws which take it away and give it to a Trial by Certificate of the Bishop Object 6 It is again by Coke alledged and Precedents cited That Edward the Confessor William the First Henry the First Henry the Third Edward the First Edward the Second and all English Kings have Govern'd and Ruled both the Kingdom and the Holy Church and have given Jurisdiction to Abbots Priors and Bishops and have granted prohibitions when they transcended the bounds of their Jurisdictions and that Reges sacro oleo uncti sunt spiritualis Jurisdictionis capaces but still this is nihil ad rhombum nor pertinent to make good the Name or Title he hath set his Book of the King 's Ecclesiastical Laws For there is a great difference if he had Entitled it de jurisdictione Regis Ecclesiastica for the King's Jurisdiction and the King's Laws are clean divers things And there is a great difference where he grants Jurisdiction to Ecclesiastical Persons and where he grants them by what Laws they shall exercise that Jurisdiction for the King 's of England have Anciently granted Jurisdiction and Commissions to Ecclesiastical persons as Bishops and Priests to be Judges in the King's-Bench Chancery and other Courts yet could they not grant them power to judge by any other Laws than the Laws of England except by Act of Parliament Then as to granting prohibitions where the King had not or could not by Law grant them Jurisdiction proves nothing that any King did or could by Law grant them Jurisdiction of general Bastardy without Act of Parliament or that there was any Law or Act of Parliament which gave them Jurisdiction of general Bastardy because the King's Courts durst not grant prohibitions for general Bastardy For in those superstitious times neither the King nor Judges dar'd provoke their Excommunication and therefore at the making of the Statute of Merton when the contest was between the Ecclesiastical and Secular Power which of them should give the Law to Marriage The Temporal Judges for fear of their Excommunication took only like the Jackal what the Lion refused and left them which they called special Bastardy So quod non capit Christus capit fiscus which is intended of the false Christ for the true Christ took nothing from it but paid tribute to it Besides if many Jurisdictions should judge by other Laws this would be destructive both to the King and Subject Though the King therefore give the Sword he cannot change the Ballance as is in effect confess'd by Coke himself 3 pt Inst fol. 120. in his Exposition of the Statute 27 E. 3. of Praemunire where he saith The right of King and Subjects not triable per alias Leges or aliud Examen then the laws of the Land If Freehold and Inheritance Goods or Chatâ—les Debts or Duties wherein the King and Subjects have a right or property should be judged per aliam legem which he mention'd before to be Civil or Canon Law And other Trial which he makes to be any Trial except by Jury or be drawn ad aliud examen These three mischiefs endeavour'd to be prevented in the said Statute would necessarily follow viz. Disherison of the King and his Crown the Disherison of all his People and the undoing of the Common Law And fol. 121. he farther saith Some have made a question whether since the Ecclesiastical Jurisdiction was acknowleged in the Crown an Ecclesiastical Judge holding Plea of a Temporal Matter belonging to the Common Law doth incur the danger of a Praemunire Though hereof is no question at all yet lest any Man might be led into an Error in a Case so dangerous we will clear this point by Reason Precedent and Authority The Reason holdeth still to draw the Matter ad aliud examen c. And he citeth before several Precedents and says The reason of all these Cases is because it drawes matters Triable at Common Law ad aliud examen and to be discussed per aliam legem Peter du Moulin that famous Protestant Divine writes That there was a a Book printed in the former Age entitle The Canons of the Apostles Anti-Christian whereby the Temporal power of the Pope is wholly taken away And the sixth Canon expresly forbids a Bishop to meddle in Civil affairs And in the 84th Canon are these words A Bishop that meddles in War or seeks to obtain these two things that is to say the Empire of Rome and the Sacerdotal Government let him be deposed for the things of Caesar are to be given to Caesar and the things of God to God And that one Arnold who Preached this Doctrine That the Pope had no Jurisdiction nor any thing to do with the Temporal affairs with great applause was in the year 1155 made a Martyr and most cruelly burnt at Rome by the order of Pope Adrian And this agrees with the Testimony of Christ himself Bishops Judg. not only as to Jurisdiction of Marriage and Legitimation but all other matters wherein Temporal propriety comes in question that he refused the Jurisdiction of it as appears Luk. 12.13 And one of the company said unto him Master speak unto my Brother that he divide the inheritance with me And he said unto him Man who made me a Judge or Divider over you It appears therefore the Episcopal Jurisdiction of judging or dividing Temporal goods in the Spiritual or Ecclesiastical Courts came not from Christ but was usurped by Anti-Christ by force of Fire and Faggot and is from him derived to Bishops and Ecclesiastical Courts to the destruction of the rights of Princes and the liberty and propriety of the people
and such of them as have Propriety in Goods and Chattels Tenements and Haereditaments as Bees Ants and Squirrels leaving as they die their Hives and Honey-Hills and Corn-Holes and Nuts to their Descendents to be their Successors The Internal Readers and Witnesses in Man are the Divine faculties of the Soul Sense and Reason one doth Testifie the Fact the other the Law The Internal Judg of the Probation of both is the Conscience The Laws which they read and testifie are written in the Internal Tables of the Heart Christ expresseth the first concerning Marriage in the foresighted Text Matth. 19.5 For this cause shall a man leave Father and Mother and they two shall be one flesh Concerning Filiation the Law of natural affection which is writ in the heart of the Father is mention'd Psal 103.13 As the Father pittieth his Children so the Lord pittieth them that fear him And the Law of natural affection writ in the heart of the Mother is mention'd Isa 49.15 Can a Woman forget her sucking Child that she should not have compassion on the Son of her Womb As to the Law of Aliment written in the heart of the Father it is mention'd Luke 11.11 If a Son shall ask bread of any of you that is a Father will he give him a stone or if he ask a Fish will he give him a Serpent or if he shall ask an Egg will he offer him a Scorpion Lastly as to the Law of Succession written in the heart of the Father whereby all natural Sons succeeded either to the right of Primogeniture or Filial Portions the same runs through all the examples of Jews in Scripture and of Gentiles in Histories This great Law of Nature is acknowledged to be written in the Tables of the Heart by the Scripture it self Rom. 2.14 The Gentiles who have not the Law do by Nature the things contained in the Law these having not the Law are a Law unto themselves which shew the work of the Law written in their Hearts their Conscience also bearing witness and their thoughts mean while accusing or excusing one another So Rom. 1.26 Paul saith Women did sin against Nature Yet was there no Law of Moses nor any Law written by God or Man in Paper and Ink which particularly prohibited them but only that of Nature And that this Law of Nature can neither be changed nor abolished or dispensed with by any humane power is agreed by Philosophers Poets Divines Common and Civil Lawyers and all others except Popes who exalt themselves above God Christ and Nature and all that is called God Lex Naturae neo tolli neo abrogari potest saith Tul. de leg 205. Dionysius when his Mother being an old Woman desired of him he would get her to be married to a young Man He answer'd Kings might overthrow Civil Laws but could not the Laws of Nature Lex humana derivari debet à lege Dei sed eam perfectè persequi non Potest Aquin. Augustin In humanis Legibus nihil est justum nisi ab aeterna lege dirivatur Honesta turpia natura judicanda sunt Tul. de leg 169.6 Hobart's Reports 120. It is acknowledged that all customs and Acts of Parliament against the Laws of Nature are void for Lex naturae est lex legum the Law of Nature is the Law of God and positive Law if contrary or variant from it is the Law of Man Yelverion Justice said When a new Case comes for which there is no positive Law before we do as the Sophonisis and Civilians resort to the Law of Nature which is the reason and ground of all Laws and of that which is most beneficial for the Common-wealth make a Law quod non negatur 8 E. 4. fo 12. Claudius justly reprehends Tribonian That in compiling the Institutes of the Civil Law he omitted the Law of Nature de Ferraiis 552. But the flattering Courtier had he done so knew he must have prefixed another imperatoriam Majestatem and laid other manner of principles then placitum Principis to be the original of right he could not have then divided Title and Jurisdiction with his Master And Jupiter Proclaiming that Deus est imperator in Coelis Imperator est Deus in Terris 'T is well he claims only the Earth for now the Pope claims not only plenitudinem Terrae but Heaven too to sell to his Customers Yet the Civil Law acknowledges the Law of Nature immutable And this point of Marriage and Succession saith Lege duodecim tabularum benè humano generi prospectum est quae unam consonantiam tam in maribus quà m in foeminis Legitimis in eorum successionibus necnon in liberis observandam esse existimavit nullo discrimine in successionibus habito cum natura utrumque corpus ediderit ut maneat suis vicibus immortale alterum alterius auxilio egeat ut uno semoto alterum corrumpatur sed posteritas dum inimica utitur subtilitate non piam induxit differentiam c. Cod. lib. 6. tit 47. l. lege By the Law of the Twelve Tables it is well provided for Mankind that there should be the same rule of Successions for Males and Females and in Children and no difference to be made in their Successions seeing Nature hath brought forth the Bodies of both that they might continue in their course immortal and one need help of another and one taken away the other might be destroyed But later Ages while they use so much subtilty have made an impious difference c. Which is intended between Males and Females in Succession when Lands are Intailed to Heirs Males By which appears what opinion the Civil Law hath of Successions to such Intails to be impious because contrary to the Law of Nature The Civil Law likewise acknowledgeth that Jura Sanguinis nullo jure Civili dirimi possunt and again it follows the Law of Nature in Legitimation Si mulier quinquagenaria partum ediderit an debet hujusmodi soboles suo patri succedere haereditatem â—jus nancisci à Caesariano advocato interrogati sumus sancimus Licet mirabilis hujusmodi partus inveniatur raro contingat nihil tamen eorum quae probabiliter à natura nascuntur esse producta respui sed omne jus quod ex quacunque Lege liberis praestitum est hoc merum atque immutilatum hujusmodi filiis vel filiabus servari in omnibus succâ—ssionibus sive ex testamento sive ab intestata Et summatim non absimiles aliis fiant in quos similes natura efficit Cod. lib. 6. tit 47. si major A question is proposed us by the Advocate of Caesar if a Woman above fifty bring forth a Child whether such Issue shall be Successor to the Father in the whole inheritance And we Decree though it be an admirable Case and rarely happens yet we ought not to reject any thing known to be probably produced by Nature but all the right which by any Law is given to
are totally Ignorant except only to take account of the Money and Gaines 3. They Judg by a Chancellour and Commissaries and not in Person The Causes are First Ignorance whereof they are before proved Guilty The Second Pride that they may be equal to Kings who pream Judg or Legislative Power can delegate Judgment A Bishop must therefore be a Judg Supream or Delegate if he Arrogate to be Supream he ought not to be suffer'd if a Delegate Delegatus non potest Delegare The Third is Sloth to take the Gains and not the Pains of doing Justice The Fourth is Covetousnes that they may have Plurality of Offices and let them to Farm to Deputies all which are most sad Ingredients to compound a Judg of Marriage Filiation and Succession and it is clean contrary to the known Laws for any Judg Delegate to Act by Deputy and not in Person for the Office of a Judg is an Office of Trust and cannot be granted over and neither ought nor can be executed by any Assign Deputy Commissaries or Chancellour but ought to be served in Person besides they Excommunicate by Lay-deputies contrary to their own Pretences that the Power of the Keys belongs only to Persons in pretended Holy Orders 4. They have Pluralities of Offices and more than they are able to serve yet will be Judges besides One good thing is remembred of Becket Arch-Bishop of Canterbury who though he was a Traitor to King Henry the Second yet being first by him made Chancellor of England and after made Arch-Bishop of Canterbury before he would take upon him the Office of Arch-Bishop he of his own accord first surrendred his Office of Chancellor not thinking it fit for one man to have two such great Offices at once but they now make St. Peters Net of so small a Mash that great or small all is Fish that comes to it And first they begin with the Coronation Office already mention'd then the Offices of Legislation in Parliaments of Legislation in Assemblies of Legislation in Synods of Chancellors of State of Negotiators of Intelligencers of Soldiers of Treasurers of Almoners of Temporal Barons of Masters of the Ceremonies of Worship of Visitors of Inquisitors of Confessors of Penancers of Excommunicators of Pardoners of Absolvers of Dispencers of Faculties of Interdictors of Marriages of Liâ—ncers of Marriage of Interdictors of the Press of Licencers of the Press of makers of Ministers of Licencers of Preachers Curates Lecturers Schoolmasters Physicians of Consecrators of Churches of Consecrators of Church-yards of Interdictors of Burial of Interdictors to cast out the Devil by Fasting and Prayers of Licencers to cast out the Devil and many others out of each of which they reap gains yet are not able to serve the least part of them but let them to Farm to their Spunges whom they squeeze into their own See whereas they cannot so much as pretend any Mission from Christ for more than One Office which is of Teaching in Season and out of Season and would they follow that as they ought the same would be sufficient to take up the whole man and leave them little leisure of being Judges of Marriage Filiation and Succession or to execute any other Temporal Office 5. They are Ambidexter and Amphibious Judges in Spirituals and Temporals They cannot deny that Marriage since it was purified by the Protestant Religion from the defilement of being a Romish Sacrament and Filiation Aliment and Succession incident to the same became meer Temporal matters and nothing can be more Temporal in it self or wherein the higest Temporal Rights of Princes and People of Liberty of Person and Propriety of Goods Freehold and Inheritance are more concerned than in them and it being likewise confess'd both by Common and Ecclesiastical Lawyers That the meer Spiritual Judge ought not to judg of Temporal matters neither was there any such Jurisdiction ever pretended to Marriage by the Pope himself but as to a Spiritual Sacrament and in Ordine ad Spiritualia he by it deposed Kings and disposed of the Succession of Kingdoms at his Will and Pleasure Unless therefore a Bishop will affirm That Marriage continues still a Romish Sacrament or that he may like the Pope judg of any Temporal matters in Ordine ad Spiritualia he hath no pretence or colour of Right to be a Judg of Marriage Filiation Aliment or Succession but let the Right be what it will de Facto he hath got a Spiritual Lord and a Temporal Baron into one Doublet and produced from thence a monstrous Ambidextrous Jurisdiction with the Spiritual Sword in one hand and the Temporal in the other neither Divine nor Humane nor Fish nor Flesh but like the Amphibious Crocodile partly with Tears partly with Terror Raving both by Land and Water and Destroying in both the Elements of Spirituals and Temporals 6. They Judg Marriage by pretended Canons and Laws made by Bishops and Synods which are no Laws but are utterly void they not having had in their making the Assent of the Parliament No English-man can deny That to make a Law are required the joint Assent both of King and Parliament and if either is wanting there can be no Law decreed and enacted by any other Convention Ecclesiastical or Lay whether Council or Synod And this is so great a Birth-right of the People That if any House of Commons who are Elected by the People and intrusted by them to be their Delegates to treat with his Majesty or his Successors to enact Laws of Marriage and other Laws concerning the same should consent and agree That an Act of Parliament should be made that the Bishops and a Synod should instead of the House of Commons have full Power and Authority on their Convention by the Kings Writ to treat with the King and by his Royal Assent to make and enact Canons and Laws concerning Marriage Filiation Succession Religion Liberty and Propriety of the People and such Canons and Laws so made should have the force of Acts of Parliaments and the Commons should declare That to ease themselves of the trouble of so often being summon'd from their remote Habitations in the Country and so long Journies to the City and their not being verst in the difficulties of Legislation or any other probable matter of Excuse that they desired to refer the whole care of the Publick Affairs to Bishops and Synods who are Learned men and they should from time to time as often as they saw necessary on Summons make wholesom Canons and Laws for the People and that the House of Commons desired to be excused from the burden of sitting any more and accordingly such an Act should be passed and thereon a Synod be Summon'd and they should make a Book of Canons concerning Marriage Filiation and Succession by the Royal Consent and these should be proclaimed to be Laws and to have the force of Acts of Parliament yet would such Book of Canons be utterly void and of none effect
nane against quhome the Process beis led be received in the Kings Castle or Place or in his Presence nor admitted to Councel or Parliament heard nor answer'd in the Law of Judgment of Fee and Heritage or uther Causes bot ever Eschewed as Cursed unto the time the said Persons cum to amendis and assyith the Party and obteine Absolution in Form of Law And Jac. 6. p. 3. cap. 53. in the Kings Minority an Act was got by the Kirk ' That all Excommunicate Persons not Conforming ' in Forty Days should be denounced Rebels and put to the Horn. The English Commissioners in the said late time of the Troubles had Instructions to take from the then Kirk such Letters of Horning and not to assist any Excommunication with the Temporal Sword which we performed accordingly The King of Spain joined with Tyrone and the Rebels in Ireland against Queen Elizabeth And Don John de Aquila Landing in Ireland with 4000 Spaniards intitled himself Master-General and Captain of the Catholick King in the Wars of God for holding and keeping the Faith in Ireland only on pretence of Excommunication Sextus Quintus the Pope of Rome on the Invasion prepared by Spain against England Anno 1588. sent out his Crusado as if against the Turks and having pass'd Sentence of Excommunication and Deprivation by his Bulls against Queen Elizabeth promising Pardon of Sins Heaven and Eternal Life to all who di'd in the Invasion 1. To grant a Pope or a Bishop Power to Excommunicate Protestant-Subjects is to grant him Power to Excommunicate Protestant-Kings 2. To grant him Power to Excommunicate Protestant-Kings is to grant him Power to Levy Money Raise Soldiers Denounce War and Depose them 3. Of the Dilemma of Danger threatning Princes who seek Security of Goverement from the Excommunication of Popes or Bishops either over a People Religious or Superstitious 4. Of the Impossibility of Security for Princes unless their Subjects are Educated or Instructed to be free from the Superstition of Excommunication and to contemn it 5. Of the Impossibility of obliging Popes or Bishops either by Benefits or Oaths Excommunication is as Proscription made a pretetence of Confiscation without shewing cause The Romans saith Aman. Marcellus proscribed Ptolomy the then King of Cyprus being their Confederate for no fault only they wanted Money in the Treasury who therefore poison'd himself and the Isle became Tributary to the Romans In the like manner do Popes and Bishop fall on the Richest with their Excommunication to fill their empty Purses Pope Gregory the Tenth Commanded Percham Arch-Bishop of Canterbury to pay him Four Thousand Marks within Four Months on pain of Excommunication So Excommunication is a ready way to Levy Money for War Anno 1230. The Pope having Excommunicated the Emperor the Emperor was fain to pay for his Absolution an Hundred and Twenty Thousand Ounces of Gold Plat. Nam Anno 1231. The Emperor for memory of this hard Penny-worth for his Absolution put into a Pool at Helbrand divers Pikes and other Fishes with Brass Rings having Inscriptions of his name and the Year of the Lord one of the Fishes was taken up 267. Years after Ann. Suev Calv. Henry the Second after that Traitor Beckett the then Arch-Bishop of Canterbury had been Slain though not by the Kings Command was enjoined amongst other things this Slavish Penance He walked Three Miles bare-foot on the sharp Stones that he at length had so cut his Feet they marked the ground with Blood every step he went And after this which was worse than Running the Gantilope he Received of the Priests Monks Bishops and Abbots on his naked Flesh so many Jerks with Rods Oh brave Pedants and Pontifical Government for Princes as according to Baronius amounted to at least Fourscore Lashes which doubtless was the Number the Jew administred to the vilest Rogues lest their Brothers should be despised in their Eyes and not heard to have been Exercised in their Eyes and not heard to have been Exercised on the Priests Bishops and Abbots themselves though they kill'd and murder'd many Lay-men without Law or Justice they incur'd only a deprivation and instead of Hanging which they deserved sometimes no more than a suspension Temporary ab Officio In the time of King John Anno 1211. The Pope Excommunicated him and gave the Kingdom of England to the King of France Paris Wend. The Pope Excommunicated Henry the Eighth and gave the Kingdom Primo Occupanti Queen Elizabeth was Excommunicated by Three Popes Pius Quintus Gregory the Thirteenth and Sextus Quintus Anno 1308. The Pope Excommunicateth Andronicus Emperor of the East and setteth up the King of Russia against him Bzou So he dealt alike with the East and Western Emperors Excommunications have brought the Venetians to extreme Straights formerly therefore they are yet no Friends of it Dandalus Duke of Venice was compell'd by Pope Clement the Fifth to Crouch under the Table Chain'd like a Dog before he could obtain Peace for the Venetians The Pope Excommunicated John King of Navar and Granted his Kingdom to the Spaniards Nicephorus Phocas Emperor of the East was Excommunicated by Polyeuchus then Patriarch of Constantinople because he had been God-father to a Child of Theophania Wife to his Predecessor and after his Predecessor's Death Married her Pope Zachary deposed Chilperick the French King and gave the Crown of France to Pepin The two French Kings H. 3. and H. 4. who were Assassinated had great Guards whereby it appears though Princes may secure themselves in Vaults and Caves from Thunderbolts yet can they not against the Bishops of Romes Ignis Fatuus of Excommunication but that to Assault them Per medios ire Satellites Et perrumpere amat saxa potentius Ictu fulmineo Eight Emperors were Excommunicated by Popes who were these Frederick the First Frederick the Second Philip Conrad Otho the Fourth Lewes of Bavaria Henry the Fourth and Henry the Fifth The Emperor Henry the Fourth Fought in Threescore and Two several Battles and had for the most part Victory he was Excommunicated by the Pope and to obtain his Absolution came Three Days together bare-foot to the Gates of the City Canusium where the Pope then was and with much difficulty obtain'd it The Catholick Majesties of Spain cannot secure themselves from Excommunication without Money nor their great Vice-Roys in America for a Rebellion was Raised in Mexico by the Arch-Bishop there Excommunicating the Governors the People by Superstitious Episcopal Education made more afraid of the Counterfeit Power of the Keys than of the true Power of the Sword and will side in Rebellion with the Bishop against the Secular Governor men may talk therefore and believe what they please that the Supremacy of the Temporal Sword is Consistent with the Spiritual of Excommunication but when it comes to Trial amongst a Superstitious People they will be very much deceived and perhaps Ruin'd Bzovius de Pont. Roman 611 612. to maintain the Power That the Popes may depose Kings
Excommunicato Capiendo and Heretico Comburendo to catch and roast the Bird himself for the Bishop to eat it and of the subtlety of the Bishop as to this matter see more before p. 167 168 169. How little incouragement there is therefore for Protestants to take this Oath of Supremacy wherein the Kings name is only abused and made a Stale to draw a Supreme and Arbitrary Power to Bishops both over the King and them and to drein the Royal Treasury into their own Pockets and how untrue a Test such an Oath must be is humbly submitted to Supreme Authority Supremacy granted by Act of Parliament of Marriage and Legitimation to Canterbury yet Sworn to be in the King 6. By the Statute 25. H. 8.21 Power is granted to the Arch-Bishop of Canterbury and his Successors by their Discretions to Grant unto the King his Heirs and Successors all such Licenses Dispensations Compositions Faculties Grants Rescripts Delegacies for Causes not contrary to the holy Scriptures and Laws of God as heretofore had been used and accustomed to be held and obtained by his Highness or by any his most Noble Progenitors at the See of Rome and all Children procreated after Marriage by virtue of any such License or Dispensations shall be admitted and reputed Legitimate in all Courts Spiritual and Temporal So this Act of Parliament made in time of Popery translates the Pope from Rome to Canterbury and the Supremacy before used or accustomed by him over the King and his Subjects concerning all the matters mention'd in the Act is placed in the Person of the Arch-Bishop and the Bishops call this a Supremacy in them according to Scripture and the Law of God which is worse and more Papal than to claim it only by Act of Parliament for what more Papal Supremacy can there be than Power to Grant Licenses Dispensations Faculties Compositions Grants Rescripts Delegacies of Marriage Legitimation and all other matters which Popes have formerly granted from Rome to Kings and their Subjects at discretion and this Exceptio is contraria facto for the granting of Licenses by Popes to Kings is contrary to the Law of the Land and is a Power Supreme to the Legislative and Law of the Land so the Grant in the Act is Repugnant to the Exception for 〈◊〉 Licenses or Dispensations are necessary but where there is a standing Law of God or Man to the Licensed or Dispensed with no Composition or Pardon necessary but where there is a standing Law violated or broken no Faculty necessary but where is a standing Law disabling the Party to do what he desires to have a Faâ—ulty for that he may be enabled to do No Rescript is but from a Supreme Prince no Delegacy but from a Superior to an Inferior for the Pope is Superior to his Legate though he be Legatus à Latere and the highest preferment this Popish Act of Parliament allows the King is to be the Arch-Bishop's Legate then the Act having made him Supreme to the Legislative Law and King gives him as high Supremacy over the Judicial Power in all Courts as well Spiritual as Temporal which is Supremacy over the Parliament which is a Court-Temporal This Act therefore doth set up more than Prelacy or Arch-Prelacy at Canterbury for that was there before and the Gyants had piled up Pelion on Ossa already and now they steeple it with Olympus and if they set not on the Gyants head the Triple Crown 't is sure they have the Triple Miter three stories high of Prelacy Arch-Prelacy and Supremacy When the Arch-Bishop got therefore of the Parliament this Act he was something like the Carpenter who begg'd of the Wood only one Helve long enough to turn his Hatchet into an Ax and when he had got that he cut down the whole Wood for he having now got so long a Helve to his Spiritual Hatchet as Supremacy over the Marriage not only of the old Palm Trees and Legitimations of the young at his Discretion that is to say if they give him whatsoever Money he asks for Dispensation and Legitimation this gives him likewise Power to strike both at Root and Branch of all the Royal Protestant-Cedars themselves in the Popish Points of Ceremonial Marriage and Legitimation endeavour'd now to be brought to the true Test of a more Supreme Law and Judg than his the Moral Law of God himself How therefore the Protestant can safely Swear in Conscience the Supremacy to be only in the King when so great a share of it is granted to the Arch-Bishop by the King and Parliament until the same Act of Parliament of 25. H. 8.21 by which 't is done is Repealed I confess my Ignorance and if it be without cause crave Pardon 7. The Party who is to Swear who is the only Supreme Governour must be intended to Swear either who is Supreme De Facto or De Jure if De Facto who hath the Actual Power of the Sword it may happen to be in a time of War when two Armies are in the Field and Inter utrumque Volat Dubiis Victoria pennis It is necessary at such a time that the Swearer unless he will Forswear himself be a Prophet of whom there are not many in this Age amongst such as take the Oath of Supremacy if it be said the Swearer ought to Swear De Jure who hath Right to be only Supreme Governor to this is Answer'd 1. Unless he can Swear to the matter in Fact he cannot Swear to the matter of Law or Right for Ex facio jus Oritur all matter of Law must arise from the matter of Fact therefore the Fact must be first known before the Right can be known which is to be deduced from it 2. The Right when the Oath is required may be as to Succession of the Crown wherein the matter of Fact depending only on Genealogies the Heralds themselves especially after Wars may not be able to make any clear probation of the Descents as Ezra 2.62 and Nehem. 7.64 it is said These sought their Register among those that were reckoned by Genealogie but it was not found therefore were they as Polluted put from the Priest-hood If therefore the Genealogies of Priests who wore themselves the Registers and kept their own Descents as curiously as was possible may be lost much easier may those of the Lay and the Law and Divinity may likewise be so doubtful that it is justly acknowledged by the King and Parliament themselves 25. H. 8.22 That Ambiguities and Doubts touching the Successions of the Crown have been Causes of much Trouble and no perfect and substantial Law hath been made for Remedy of the same and accordingly at the Death of Queen Elizabeth there were no less than Sixteen titles endeavour'd to have been set on foot to the Succession partly by Papists to overthrow the Protestant-Religion partly by others to overthrow the Union between the two Kingdoms in the Person of King James in which the Protestants of
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
devour her Child as soon as it is born The People who are Terrae Filii to be the Earth helping the Woman Prelacy being wroth and going to make War with Dissentient Protestants to be the Dragons being wroth with the Woman and going to make War with the Remnant of her Seed which keep the Commandments of God Old Teslament false translated by Bishops in 848 places and have the Testimony of Jesus Christ And that these are not the only false translations which Bishops make of the Scripture appears by the great Linguist Broughton who in his Advertisements of Corruptions affirms to the then Bishops of England That their publick translations of Scriptures is such as that it perverts the Text of the Old Testament in no less then Eight Hundred Forty Eight places and causeth Millions to reject the New Testament and to run into Eternal Flames Sixthly To shew that Coke needs no other to confute him in the signification of Nothus not to be a Child born out of Wedlock but a plece of his own Rhime I shall recite it which is by him set down Manseribus scortum notho Moechus dedit ortum and is a false Verse for No in Notho is short which might happen by some Error of his Scribe but the true Verse is in Calv. Lex whence I suppose he might have it Sed Moecha Nothis dedit ortum which Moecha signifies an Adulteress which she cannot be unless she is a Married Woman therefore it is plain the Rhime it self confutes him that Nothus is not a Child born out of Wedlock but in Wedlock which is unanswerable as to him because ex ore suo though not as to others who are on better reasons unanswerably answer'd before They corrupt the Press both as to Scripture and Law and interdict Protestants to write against Papists or answer them Act of Parliament against Lollards counterfeit by Bishops Coke 3. part 40. saith There was a Statute supposed to be made 5. R. 2. That Commissions should be by the Lord Chancellor made and directed to Sheriffs and others to Arrest such as should be Certified into the Chancery by the Bishops and Prelates Masters of Divinity to be Preachers of Heresies and notorious Errors their Fautors Maintainers and Abetters and to hold them in strong Prison until they will justifie themselves to the Law of the Holy Church By colour of this supposed Act certain Persons that held Images were not to be worship'd c. were holden in strong Prison until they to redeem their vexation miserably yielded before these Masters of Divinity to take an Oath and did swear to worship Images which was against the Moral and Eternal Law of Almighty God We have said by colour of the supposed Statute c. not only in respect of the said Opinion but in respect also that the said supposed Act was in truth never any Act of Parliament though it was Entred in the Rolls of Parliament for that the Commons never gave their consent thereunto And therefore in the next Parliament the Commons prefer'd a Bill reciting the said supposed Act and constantly affirmed that they never assented thereto and therefore desired that the supposed Statute might be aniented and declared void For they protested that it was never their intent to be justified and to bind themselves and their Successors to Prelates more then their Ancestors had done in times past And hereunto the King gave his Royal Assent in these words Ypleist au Roy. And mark well the manner of the penning the Act for seeing the Commons did not assent thereunto the words of the Act are It is Ordained and Assented in this present Parliament That c. And so it was being but by the King and the Lords It is to be known that of ancient time when any Acts of Parliament were made to the end the same might be published and understood especially before the use of Printing came into England the Acts of Parliament were ingrossed into Parchment and bundled up together with a Writ in the King's name under the great Seal to the Sheriff of every County sometime in Latine and sometime in French to command the Sheriff to proclaim the said Statutes within his Bailwick as well within Liberties as without And this was the course of Parliamentary Proceedings before Printing came in use in England and yet it continued after we had the Print till the Reign of H. 7. Now at the Parliament holden in 5. R. 2. John Braibrook Bishop of London being Lord Chancellor of England caused the said Ordinance of the King and Lords to be inserted into the Parliamentary Writ of Proclamation to be proclaimed amongst the Acts of Parliament which Writ I have seen the purclose of which Writ after the recital of the Acts directed to the Sheriff of N. in these words Nos volentes dictas concordias sive ordinationes in omnibus singulis suis Articulis inviolabiter observari tibi praecipimus quod praedictas concordias sive ordinationes in locis infra Balivam tuam ubi melius expedire volueris tam infra libertates quam extra Publice Proclamari teneri facias juxta formam Praenotatam Teste Rege apud Westm 26. Maij. Anno Regni Regis R. 2.5 But in the Parliamentary Proclamation of the Acts passed in Anno 6. R. 2. the said Act of the 6. R. 2. whereby the said supposed Act of 5. R. 2. was declared to be void is omitted and afterwards the said supposed Act of 5. R. 2. was continually Printed and the said Act of 6. R. 2. hath been by the Prelates ever from time to time kept from the Print A Counterfeit Act Printed by Bishops against Protestants What English Protestant can read this without horror what doth he not observe it why 't is that Counterfeit Act of Parliament 5. R. 2.1382 whereby Bishops usurp to be Judges of the Souls and Consciences of Protestants and to put them in strong Prison till they conform and submit to the will of the Bishop 't is that Counterfeit Act whereby they usurp to be Judges of Heresie and to make Protestants Hereticks when they please 't is that Counterfeit Act whereby they have compell'd the Subjects to swear to worship their Idols 't is that Counterfeit Act whereby they have dragged so many Pious Martyrs to the Stake and burnt them filling the whole Land with fiery Furnaces 't is that Counterfeit Act by which the Bishops have usurped Power to destroy Religion Liberty Propriety and Lives of all Protestant Subjects at their pleasure 't is that Counterfeit Act which was never assented to but disclaimed detested abrogated and declared null and void by the House of Commons 6. R. 2. Anno 1383. and hath been yet most presumptuously caused to be printed as a valid Act by the Bishops being Masters of the Press and the true Act of Abrogation 6. R. 2. Whereon all the Subject hath depends most wickedly suppress'd and never Printed Coke 2.
Part. Fol. 584. saith And here is to be observed how the Statute of 35. E. 1. hath been dealt with since the 17th of E. 3. for in an Act that Year a branch of the Statute of 35. E. 1. was recited That forbad any thing should be attempted or brought into the Realm which should tend to blemish the King's Prerogative or in prejudice of his Lords and Commons which is now wholy omitted and Fol. 585. he saith Note in the Roll of Parliament of the Statute of 38. E. 3. Cap. 1. of Provisors there are more sharp and biting words against the Pope then in Print a Mystery often in use but not to be known of all men from which examples it is manifest that this came by the Fraud of the Bishops who before Printing were Masters of the Authentick Copies of the Laws appointed for promulgation and since Printing are Masters of the Press to interdict and publish what they will Accipe nunc horum insidias Crimine ab uno Disce omnes These few Frauds are discover'd in Print against the Interdictors of Printers which discovery they would likewise have interdicted if they had been able for these latter Books of my Lord Coke were prohibited to be Printed and got out in the late time of Troubles but by these it is clear which were only spoken obiter and without any inquisition after them that all they are guilty of are not discover'd and that to give either Spiritual or Temporal Judges Power to interdict the Press is to give them Power to have what Law what Gospel what Text what Translation what Canonical what Apocryphal what Scripture what Act of Parliament what Common Law what Statute what Religion what Justice what Liberty and what Slavery they please Besides which Power of Fraud and Forgery destructive to all Truth these further mischeifs follow all interdictions of the Press but I shall first answer such Objections as are made against the Liberty of it Object 1 First If Liberty of the Press should be permitted Enemies would have it equal with Friends Papists with Protestants Hereticks with Orthodox Secondly They would Print Blasphemy Idolatry Treason Rebellion Vncleanness Calumny Reviling Derision and all manner of Heresie Answ 1 To the First is answer'd 1. That it is impossible to exclude Enemies and Papists from Printing they being possess'd of so many Transmarine Presses whence they can with far greater advantage vent their matters then from any Presses in England 2. Admit they could be excluded yet in prudence they ought not but are more necessary to be admitted then Friends for those whom we use to call Friends are pessimum inimicorum genus Adulantes the worst kind of Enemies Flatterers who flatter and sooth us up in our Vices and destroy us but any truth of our Faults we shall never hear but from Enemies Plutarch therefore calls an Enemy a School-Master which costs us nothing 2. As to the matters of Blasphemy Idolatry or Uncleanness neither Enemy or Friend will so far dishonour themselves or their Cause as to Print them openly for it is against their interest As to Treason or Rebellion who that hath an Enemy doth not desire to know before-hand wherein the strength of his Cause as well as of his Forces lies and to have the War Proclaimed in Print before it begin that he may the better provide against Besides if there were but a Law made that nothing shall be printed without the names of the Author and Printer with their Additions and Designations And that all Crimes against the publick committed by Printing should be punished by Indictment according to Law and all injuries to private persons should be reparable by the parties injured on their Actions according to Damage Who would dare make himself guilty of a publick Crime or private Injury in Print to which he had set his name 3. As to matters of Heresie such as by accident become dangerous to public safety the prudence of the Legislators may where they find cause prohibit them both Press and Pulpit but not in the Thoughts and Consciences of Men As in the end of the Wars of Germany between the Lutherans and Catholicks it was Enacted mutually on both sides on pain of death That no Catholick should Preach against the Lutheran Doctrine or Lutheran against the Catholick but both should enjoy the liberty of their own Consciences to themselves This agreement was here made otherwise those bloody Wars would never have ended without a total destruction of one of the Parties And likewise such a Law were here much more necessary between dissentient Protestants who were Brethren then it was between the Lutherans and Catholicks who were mortal Enemies That no dissentient Protestant should Print or Preach publickly on any point of Ceremonial dissentiency or other matter not necessary to Salvation except in such matters as are particularly allowed by Supream Authority to exclude Popery there being Field-room enough in the Moral Law of God to exercise gifts in Preaching and matters which have the promise of this life and of that to come and no cause for any to complain who have liberty likewise of Conscience to use what Protestant Ceremonies and Form of Worship they will to themselves though they have not power to compel the Consciences of others who are dissentients But if Protestants are tolerated to Print or Preach against one another this is the thing the Papist would have and knows will in the end make them both a prey to himself But though Protestants ought not to preach one against another yet the juncture of Affairs being not at present in great Britain as before mention'd in Germany and an appearance of War Plotted by the Papist rather to begin than end with the Protestant the Bishops ought not to be suffer'd to interdict either Press or Pulpit to the Protestants against them To come at length to the further mischiefs insuing the Interdiction of the Press any Interdiction of the Press except in Cases before mention'd either to Friend or Enemy is a dishonour to the Protestant Religion as if it dared not suffer it self to be disputed or to meet an Enemy in the open field whereas in truth it is not Protestancy but Episcopacy 'T is not the Moral Law which is the Protestant Law but the Ceremonial which is the Popish Law which dares not encounter the shock of an Enemy And 't is Fiction and not Truth Vice and not Vertue which fears either Press or Pasquil 2. The Foreign Presses being impossible to be interdicted to the Papist if the English are interdicted to the Protestant he is thereby silenced and prohibited to answer the Papist let him preach what he pleaseth 3. By Interdiction the profit of the English Protestant Print-houses will be transported to Foreign Papists which will be a great discouragement to so necessary a Trade in England and prejudice to the Protestant Religion and Policy 4. The Interdiction of the Press will multiply the greater evil
the nearness of the Task-masters increased it to blind the people they pretend all to be for the Queen and as if neither Pope nor Prelate should have to do with it they incited the Queen like the Eagle of Divinity to Soar to the height of Spiritual and Ecclesiastical Supremacy to no other intention than when she had taken the Quarry they might take it from her and exercise it themselves to their own profit and not hers for the next Clause in the Act is That the Queen may assign Commissioners to exercise all manner of Spiritual and Ecclesiastical Jurisdiction which they knew would be to Bishops but they abusing this Power they had got in the High Commission Court and other Commissions this Clause or Branch of Assigning Ecclesiastical Jurisdiction by Commission is repealed 17. Car. 1. Cap. 11. 13. Car. 2. Cap. 12. but the annexation to the Crown and Oath of Supremacy still continuing they continue still in the King's Name to exercise all Acts of Supremacy both of Legislation by continuing and making Canons and of Judgment and Execution above all Appeal in all matters concerning Marriage Filiation and Succession or more than they were given Power by any Commissions to do while they continued which makes them who exercise Acts of Supremacy incapable of being Judges Delegate By pretence of giving the King Supremacy by the Ceremonies of Coronation and Unction they take it from him to themselves Coronation is the Investiture of a King in his Kingdom by the Ceremony of Tradition of a Crown or setting it on his Head so is the Investiture of a Bishop by Tradition of a Ring and Staff or Crosyer and of a Soldier in Feudal Tenures by Tradition of a Ring Sword or Spear The Persons who have used to make Traditions of Crowns have been in Kingdoms where the Priest hath the Supremacy of the King as in Pagan Kingdoms by the High Priest and in Christian Kingdoms by the Pope or Bishop and in Germany by both for the King of the Romans is used to receive three Crowns one of Iron another of Silver and another of Gold That of Iron he receives of the Bishop of Coleyn in Aquisgrave that of Silver of the Arch-Bishop of Millayne in Italy in the same City and in the Church of St. Ambrose That of Gold of the Bishop of Rome in the Church of St. Peter at the Altar of St. Maurice Where Note That Gold may be bought too dear and that three Magpies have got by the Bargain Supremacy over the Roman Eagle But in such Kingdoms where the Supremacy hath been in the King above the Priest the Tradition of the Crown hath been by the People or their Representative which we call here a Parliament or one appointed by them in regard a multitude cannot all do it in person It is likewise to be observed That there is a difference between assuming a Kingdom by Conquest and by Contract for he that comes in by Conquest takes the Crown without Tradition from Clergy or Lay whether they will or no or exercises the Power of the Sword to govern at his Will without a Crown as did the old Roman and now do the Ottoman Emperors who are never Crowned but wear Turbans whereby no Foreign Caliphs nor their own Mufti 's can usurp Ecclesiastical Supremacy for whosoever accepts Tradition of a Crown or any other Symbol or token of Investiture lays aside all Titles by Conquest and receives a Kingdom by Contract with the people and takes an Oath to Govern according to the Laws Contracted which Contract if made with Bishops and they have the Power of Tradition of the Crown if we will believe Henry the Second they will impose their own Terms of Supremacy and every thing else which concerns their profit and how Imperious they have been in arrogating to themselves only the Right of Tradition of the Crown I shall only mention one Example in the Reign of Henry the First who after the death of his first Queen Matild married a second called Adelira and when she was to Be Crowned Ralf Arch-Bishop of Canterbury who was to do the Office came to King Henry sitting in his Chair of State asking who had set the Crown on his Head The King answering I have now forgotten it was so long since Well says the Arch-Bishop who ever did it he did me wrong to whom it belonged and as long as you hold it thus I will do no Office at this Coronation Then said the King The insolency of an Arch-Bishop Do what you think good Whereupon the Arch-Bishop took the Crown off the King's Head and after at the intreaty of the people set it on again and then proceeded to Crown the Queen Here appears a great difference between the Tradition of the Crown by a Bishop and by the People for the Bishop arrogates the Right as the Pope by his Spiritual and Ecclesiastical Supremacy and compels the Prince implicity to acknowledg the same by either receiving the Original Tradition or Confirmation of his Crown from him as one that hâ—th power Jure Divino to give it but where it is received from the People or Parliament neither Superiority nor Supremacy is imply'd nor comes in question but only the form of the Contract for Superiors and Inferiors and Equals may all Contract alike and bind themselves alike whether Superior or Inferior without any regard or consideration of the one or the other Then for the Supremacy Spiritual given by Unction by a Bishop they are ever citing their old Popish rule Reges sacro oleo uncti Spiritualis Jurisdictionis sunt capaces Kings anointed with holy Oil are capable of Spiritual Jurisdiction whereby they make an Appearance as if by their Oil they gave Supream Spiritual Jurisdiction whereas in truth they thereby circumvent Princes and make them implicitely acknowledg the Bishop who anoints to be a greater Supream than the Anointed for the Bishop assuming without Miracle or sign of Mission to Consecrate the Oil he thereby prâ—tends he hath Power Jure Divino to Consecrate and Anoint as some Prophets had by Miracle amongst the Jews and then from Christ's Argument Matth. 23.17 19. Anointing safer for Princes by a Lay-hand and with common Oil than with Oil Consecrate Whether is greater the Gold or the Temple which Sanctifieth the Gold the Gift or the Altar which Sanctifieth the Gift infers whether is greater the Temple or Bishop who Consâ—crates the Temple the Oil or Bishop who Consecrates the Oil and whether is a greater Supream the Person Anointed or the Bishop who Anoints and Consecrates the Anâ—inted So it was by pretence of Consecration of Crowns and Oils by which the Pope first and since the Bishop hath usurped Supremacy over Princes and secretly steal the Supremacy of that Spiritual Jurisdiction to themselves which they pretend to give them But where the Tradition of the Crown or Unction is by the People or their Representative the Parliament according to Contract
them durst adventure seeing Bajezet was of a furious Nature and in his Anger dangerous to be spoken with to mediate in their behalf no not Alis Bassa Charadin Bassa's Son whom of all men he favour'd most There was at that time in the Court an Aethiopian Jester who under some Covert pleasant Jest would often times bolt out to the King in his greatest heat what his gravest Councellors durst not speak to him in secret This Jester Alis Bassa requested to devise some means to entreat the angry King in behalf of these Judges promising to give him what he would desire if he could appease the Kings displeasure The Aethiopian without fear undertook the matter and presently put on his Head a rich Hat all wrought over with Gold and accoutred in all other his Cloths suitably presented himself before the King with a great counterfeit Gravity whereat Bajazet marveling asked him the cause why he was so Gay I have a Request unto your Majesty said he and wish to find favour in your sight Bajazet more desirous than before to know the matter asked what his Request was If it stand with your pleasure said the Aethiopian I would fain go as your Ambassador to the Empeperor of Constantinople in hope whereof I have put my self in this readiness To what purpose wouldst thou go said Bajazet To crave of the Emperor some Forty or Fifty of his old grave Monks and Friers to bring with me hither to the Court. And what should they do here said Bajazet I would have them placed said the Jester in the rooms of the old doteing Judges whom you intend as I hear to put to death Why said Bajazet I can place others of my own People who are better in their rooms True said the Aethiopian for Gravity of Look and Countenance and so would the old Monks and Friers serve as well but not so learned in the Laws and Customs of your Kingdom as are those in your displeasure If they are Learned why do they then contrary to their Learning pervert Justice and take Bribes There is a good reason for that too said the Jester What reason said the King That can he that there standeth by tell better than I said the Jester pointing to Alis Bassa who forthwith commanded by Bajazet to give the reason with great Reverence first done shewed that those Judges so in displeasure were not conveniently provided for and were therefore enforced many times for their necessary maintenance to take Rewards where they could get them to the staying of the due course of Justice which Bajazet understanding to be true commanded Alis Bassa to appoint them convenient stipends for their maintenance and forthwith granted their Pardon Whereupon the Bassa set down Order That of every matter in Suit exceeding One Thousand Aspers the Judges should have Twenty Aspers which Fees they yet take to this day Whence may be Observed 1. That to place Judges in Courts to undergo the incessant labours of hearing multitudes of Causes and not to allow them honourable maintenance is the ready way to make men of ordinary Principles Freebooters and to take the Prey for themselves So the meanness of the Salary in Russia being but an Hundred Marks per Annum makes the Judges extream Extortious on the People 2. That those who buy either Judicial or Ministerial places in Judicatories must sell again and the sale of either is contrary to the Law of God and of infinite Damage to the Publick turning the weights of Justice to the false weights of Merchandize as says the Poet Ergo Judicium nihil est nisi publica Merces Quid faciunt leges ubi sola Pecunia Regnat 3. That the Basha when he was appointed to provide the Judges maintenance by stipend providing the same by Fees made them worse then before and gave them a pretence to take Bribes of the People under the name of Fees and there are none more corrupt Judges for Bribery than the Turks to this day and well they may if they take Fees Neither Judg nor Minister to take Fees but Salary It was the Ancient Law of England that none having any Office concerning the Administration of Justice should take any Fee or Reward of any Subject for the doing of his Office Coke 2. part 176. and by the Statute Westm 1. cap. 25. neither Judicial nor Ministerial Officer as Sheriff Escheator Coroner Bailiff Gaoler Clerk of the Market Aulnager nor other inferior Minister or Officer of the King whose Offices do any way concern the Administration or Execution of Justice or the common good of the Subject or the Kings Service but shall be paid of what they receive from the King on pain the Offender against this Act shall pay double Damages of the Plaintiff and shall be otherwise punish'd at the Will of the King Marrying for Fees contrary to the Laws of God and of the Land By which appears that the Episcopal Judging of Marriage Filiation Aliment and Succession for Fees and the granting of Licenses of Marriage by Bishops and taking of Fees by a Priest for Banns or Marriage of any Persons in a Temple or elsewhere is wicked abominable and contrary to the Laws of God and Fundamental Laws of the Land and they ought to be punish'd for doing the same and had not Bishops corrupted the true Doctrine of Gods Ordinance of Marriage to obtain Fees and other covetous and ambitious Ends Men had at this day Married according to the Moral Law of God and not the Ceremonial Laws of Priapus and Venus The Inconveniences which ensue Judges and Ministers taking Fees are 1. As Coke saith 2 part 210. When neither Judges or Ministers had any Fees then had they no colour to exact any thing of the Subject who knew they ought to take nothing at all of them they being maintained by Salary from the King but when some Acts of Parliament changing the Rules of the Common Law gave to the Ministers of the King Fees in some particular Cases to be taken of the Subject whereas before all their Office was done without taking now no Office at all is done without taking and a gap being once open'd there was after no bounds to the breach so it causeth Oppression 2. It causeth corruption of Justice for if a Judg take Fees it is from the Plaintiff and Defendant and he will sell Justice to him who gives him the greatest but if he take a Salary he takes it from the Publick and will be for the Publick good and not partial to the Parties 3. The Publick by giving the Salary and receiving the Fees increases the Publick Treasury for the vast Income of Fees far exceeding the Merits of the Judges and Officers it is just the overplus should be applied to discharge Publick Burdens and not to fill private Pockets and what was unequally shared amongst Officers ignorant and idle by way of Fees The English in Scotland turn'd all the Fees of Courts into
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
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
he ought to be punish'd in One Hundred Pounds to the King and Imprisonment one Year without Bail and One Hundred Pounds more to the Knight injured thereby or to any other Person who in his default will Sue for the same and is contrary to the two said standing Acts of Parliament of greater consequence than Magna Charta or the Petition of Right themselves for if there is a Protestant Parliament no doubt they will make and we shall not want Protestant Laws but if once there get in a Papist Parliament both Protestant Laws Religion and Protestants themselves will be all destroyed And as the Sheriff Returns Fictions to Courts so do they send Fictions to him and it is hard for him to know when they speak true and when false as if a Venire Facias be sent him to Return 12 Jurors he must Return 24 which is double the number or he shall be Fined for as they write their words in the Venire by halves so do they as it seems their Meaning by halves yet the poor Sheriff is bound to understand them to his Cost then if they send him a Pone per Vadios Salvos plegios the Sheriff must Return no other Plegii to answer their Fiction than his own Fiction of Plegii John Den and Richard Fen or they will teach the Party to have a false Imprisonment against him Suits are removed when the Plaintiff hath been at all the Cost and trouble and is ready for a Trial on meer vexation and to delay on Suggestion or Fiction of a Cause without any Oath of Calumny Attachments and Arrest of Goods and Persons is used in the City without any Oblatio Libelli or Oath of Calumny on meer Fictions and Suggestions City Law 22. but very wrongfully for a Citizen hath as good Right to Magna Charta as he hath to the Charter of the City and under the name of being free of the City doth not lose the liberty of a Subject to be free from Arrest before Judgment Coke Vind. Law 26. says Abuses of Fictions to Arrest before Judgment This brings to my remembrance how a Gentleman was Arrested for 1500 l. the same day that he was to have been Married without any colourable cause of Action spitefully to hinder his Match and was not able to give Bail but the Party being Non-suit the Gentleman notwithstanding could recover as I remember no more than 7 s. 2 d. Cost yet he lost his Monies and indeed himself by it for I know it was the occasion of his utter Undoing and a man that is Cannibally given may devour the Credit of 500 men Arresting them for 5000 l. a piece never declare yet pay no Cost though Party Arrested had better have paid 500 l. and this is so usual that 't is commonly said I 'le bestow a Bill of Middlesex on such a man to stay him in Town that I may have his company into the Countrey when I go down And I my self was informed by a Sea-Captain who was a Sufferer in such an Arrest That there happen'd to be two Merchants in London each of which designed a Voyage to the same Port of Barbary whether he who could arrive first was assured he should to his great gain obtain the Prime of the Market to which purpose they both strove with all diligence possible which should be foremost at the Spring and it happen'd that he who had his Ship first ready had entertained this Captain of my acquaintance to command her for him and all being ready to set Sail the Captain would needs walk into the City to take his parting Cup and Farewell of his Friends where unexpectedly he was Arrested for 5000 l. though not owing a farthing and the same being a Choak-Bail-Sum he knew he should get none to be Surety for him and thereupon sent to his Merchant to inform him how he was boarded before he could get aboard who being much troubled that his Captain was taken by a Land Pyrat repaired to him and understanding from him that he did not owe the Party at whose Suit he was Arrested a farthing and knowing withal that it was done by the Spite of the other Merchant to stop his Ship from getting before him he gave Bail for his Captain and sent him immediately on the Voiage All which Mischiefs happen because there is no Law to compel to give a Copy of the Declaration and Oath of Calumny before Arrest by which all Fictions are prevented All the Judicial Transactions of Fines and Recoveries are Fictions Fictions of Fines and Recoveries so though we have fled from Land to Sea and back again from Sea to Land we know not where to find Rest for the Sole of our Foot from Fictions We are next come to another horrible cause of their Increase which is that no Averment or Probation to the contrary is admitted against the Sheriff or the Clerk nor the Returns or Records how Records which are nothing but the Scribling of Clerks in false Latine and Court-hand for their Fees come to be of higher Authority than the Scripture it self is strange for it was never denied except against Mahomets Alchoran but Averment and contrary Probation might be brought against the false Copying false Translating or false Printing of any word or Clause in the Scripture or it would be very difficult to overthrow Popery What greater reason is there of so many Forgeries of Clerks but that there is no Averment allowed against their Records nor contrary Probation whereby they may for Money insert what Fictions and Falsities they please Estopples are another mischievous cause and the denial of liberty of Travers as bad or worse than the other Turpia quid referam vanae mendacia Linguae I am weary and ashamed to recite so much reflecting so deeply on the Honourable and necessary Profession of the Law Pudet haec opprobria nobis Et dici potuisse non potuisse refelli But all this may be easily taken away of Fictions and Falsities if so small a matter of Form were but alter'd as to give liberty to Traverse all is false and to cause the Plaintiffs and Defendants to give Copies of their Declarations and Pleas and to give their Oath of Calumny to them for I saw it by experience in Scotland which I must acknowledg and testifie to the Honour of their Form of Judicial Proceedings That I could never for the space of Six Years observe the least Fiction in the same which I can attribute to no other cause than the wise and just Act of Parliament concerning the Oath of Calumny Jac. 1. P. 9. C. 125. and the present Practice accordingly which Act being short I have transcribed That Advocates and Fore-speakers in Temporal Courts sall Sweare THrow the consent of the hail Parliament it is Statute and Ordained That Advocates and Fore-speakers in Temporal Courts and alswa the Parties that they plead for gif they be present in all Causes in the beginning or
Courts and only takes in the Rich. 1. Because of the remoteness of sending for Writs the same being the greatest part sent for Hundreds of Miles 2. They are limited to so many short Returns only to multiply unnecessary Fees for Aliases and Pluries that they are extreamly troublesome and costly to the Poor 3. The Forms of them are so ticklish that when got they are easily abated and overthrown for the miss of a word a syllable and often a dash to an half word not made more clericorum and often for false Latine A Writ abates likewise for any default of Form varying from the Register Omission variance in order of words from the order used in Chancery the following matters are likewise good exceptions to abate Writs rasure interlining false Latine yet they never write true Omission of the words Vi Armis or of the words Contra pacem Outlawry Misnaming a Twice naming of the Person Misnaming of the Village or Hamlet Misnaming of Barockshare for Barkshire Misnaming of the Village Misnaming of the Person so variance between the Writ and the Declaration or Count in the least toy is a sufficient Exception to overthrow both Writ Declaration and Count Hastings Hasting as 9. E. 4.42 43. Det by Edward Hastings and Counts that he by the name of Edward Hasting recovered Land in Ancient Demesne and One Thousand Pounds Damages and brings his Action for the Damages by Three Justices against Five the Writ ought to abate 28. Ass 52. A Record removed and a Variance between the Record and the Mittimus and the Certiorari for one was H. Green Just Green and de Green Molineux Moliney and the Writ was Henry de Green the omission of the word De stopt the proceeding of the Justices Trespass the Writ was Molineux the Protection Moliney and therefore disallowed for the Variance 7. H. 6.22 Nuper omitted Trespass against J. N. nuper de D. in the Protection Nuper was omitted therefore Variance 19. H. 48. Audita querela upon an Indenture which was Langa White the Writ was Lang Whaite which put the Party to great Cost to get it to be amended 21. H. 6.7 7. Port. said an Outlawry was reversed for the Variance between Dockwra and Dockawre 21. H. 6.7 Dockwra Dockawre I. In the Obligation the Defendant was named J. M. de M. in the Writ M. was left out and therefore abated 38. E. 3.24 In Mayhem the Writ was Contra pacem Nuper Regis and the Count Contra pacem nunc Regis therefore it abated 8. H. 4.21 2. E. 4.25 Amendment 21. A Dispute is whether Wagam and Vagam are a material Variance Wagam Vagam Count less than the Writ A Judgment given in a Writ of Annuity was reversed because the Writ was That Twenty-six Marks Six Shillings Eight Pence was Arrear of the Yearly Rent of four Marks and in the Count Six Shillings Eight Pence omitted which is a Variance 9. E. 4.51 54. Here the Poor man was punish'd for his Conscience because he desired less in his Count than his Attorney had put into his Writ and it is said there that is not Misprision of the Clerk to be amendable because the Count is made by the Party and not by the Clerk A world of other Abatements of Writs there are too many to trouble at this time the Reader with both as to Variances between the Writ and Count and between the Writ and another Writ between the Writ and Specialty between the Writ and Testament between the Writ Count and Specialty between the Writ and Warrant of Attorney c. And the more Writs are abated and Causes thereby overthrown the more Money the Courts and Clerks get to send out new but the more miserably are the Poor by them oppress'd and it were more merciful in short to deny them Hearing than to cause them to hazard and lose all that little they have and at last not to be Heard This mischief of Writs was first invented by the College of Priests at Rome and were called Formulae Juris which is little Forms or diminutives of Forms the little Forms were those we call Writs the greater Forms whereof the lesser pretended to be as the Contents of the Chapters were what They called Libels and We Bills and Declarations These Formulae though set up by the Priests for their Gain were contrary to the Law of the Twelve Tribes in regard Oblatio Libelli being by that Law to precede Vocatio in jus as before is shewn these Writs or Formulae were useless and the Forms of Libels were sufficient to direct the People themselves Original Writs abolished by Justinian and better than the other which were so rigorous in their punctilios of Formalities Vt cadente Syllaba caderet Causa these Forms therefore of Original Writs of the Priests were totally abolished by Justinian lib. 2. tit 58. De Formulis impetrationibus Actionum Sublatis Juris Formulae aucupatione syllabarum insidiantes cunctorum Actibus radicitus amputentur Dat. X. Calend. Feb. Constantio III. Constante II. A A. COSS. Let Forms of Actions insidiating by hawking at Syllables in all mens Suits be cut up by the Roots Baldus Notes on the place Quia supervacuae Formulae sunt sublatae non oportet Actiones à Pontificibus impetrare sed sufficit eas apertè proponere and very well against this insidiation of Writs in Words and Syllables agrees the expression of Isa 29.21 They make a man an offender for a word and lay a snare for him that reproveth in the gate and turn aside the Just for a thing of nought The like to this of Justinian was done by that famous King James the Fifth the great Justitiar of Scotland where they had formerly their Writs as we have till they were sick of them and able to bear them no longer which was remedied by an Act of Parliament Jac. 5 p. 6. cap. 75. The words of which Act follow ordering a Copy of the Libel to the Person or dwelling House The Ordour of Summounding all Persons in Civil Actions Copy of a Bill or Declaration served in stead of a Writ ITem For eschewing of great Inconvenientes and Fraude done to our Soveraine Lordis Lieges by Summounding of them at theire dwelling places and oft times falslie and gettis never knawledge thereof It is Statute and Ordained That in times cumming quhair ony Officiar or Schireffe in that parte passes at Commande of the Kingis Letters or the Schireffes Stewardes Baronnes or Baillies Precept to Summound ony Partie if they cannot apprehend them Personallie they sall passe to the Ȝett or Dure of the principall dwelling place quhair the Person to be Summonde dwellis and hes their actual Residence for the time and there sall desire to have entresse quhilk gif it be granted they sall first schaw the cause of theire cumming and gif they cannot get the Party Personally they sall schaw their Letters or Precept before
with them and were indeed a most imperfect constitution of Defensors of Liberties against Senators permitted to be Hereditary and was no way to be remedied unless the People had taken on them the Election of the Senators as is now done by such Nations as have the Liberty of Parliaments but if Two dissentient Negatives or Houses or Parliaments are joined together in one House where the matter is to be carried by Plurality of Votes there dissentient opinions of the several Members are so far from hurting the Publick as they do the same much Good First by the contrary Dispute of the Question the Truth is the better understood Secondly When two Extremes contend they commonly moderate one another and produce a more temperate Sentence than if the whole Senate were all of the same mind without any Faction so as long as Cato and Caesar made Orations one against the opinions of the other in the Senate it mitigated them to moderation and it was the Contention in the Field and not in the Senate caused so much mischief to the Publick which could not be avoided in such a Senate which was no equal Representative Elected by the People but some Senators so disproportionable in Power as Caesar and Pompey were to the rest Strength of Union 13. Though Confederacy of Foreign Princes ought not to be neglected yet the Confederacy of the Three Parliaments by Union in one House is a far greater assistance than of any Three Foreign Princes Confederated and living in Foreign Palaces and such Three Protestant Parliaments in one House and under one Protestant King are by Gods help of greater Strength and Councel than any Three Catholick Kings and the Pope with them if they should wrongfully confederate against the Protestant Examples of Un on of Parliaments 14. All these and no question more dangers of Disunion and Benefits of the Union of Parliaments were foreseen to the Wisdom of King James of famous memory and how zealously the desire of such an Union was press'd on him by him between England and Scotland appears by the Act 1. Jac. cap. 1 2. And thereby Commissioners of each Nation were appointed to meet and Treat and to reduce their Dâ—ings therein to Writings or Instruments Tripartite every part to be subscribed and sealed by them and one part to be deliver'd to the King the other to the Parliament of England the other to the Parliament of Scotland this was promoted several times in the House and vigorously Seconded by many Noble Protestant-Patriots after which as appears Coke 4th part 347. there started a question amongst the Commissioners whether there could be made a new Kingdom of Great Britain before there was made an Union of Laws which Question was by Command of the King refer'd to all the Judges of England in Trinity Term Anno 2. Jac. who unanimously Resolved Coke being then Attorney General That Anglia had Laws and Scotia had Laws A ridiculous Answer of Judges touching Union of Kingdoms but this new Erected Kingdom of Britannia had no Laws and therefore where the Forms of all Judicial Proceedings of England are Secundum Legem consuetudinem Angliae it could not be alter'd Secundum Legem consuetudinem Britanniae an Answer fitter for Protonotaries than Judges as if no Union were possible to be made of Kingdoms but by Rastall's Book of Entries whereas one word of a Nuper would have salved this horrible objection and but two lines of a Proviso in the Act of Union might have made the Style of their Formality what they would have had it but this unlucky Pedantry of Theirs was a fatal Scourge to Great Britain for in all humane probabilities if there had been then made an Union of Parliament the late Bloody Intestin Wars had never been 3. Jac. cap. 3. A Recital is made of the long and worthy Labours of the Commissioners of England and Scotland and how albeit all things had been by them fully and effectually pursued and accomplished c. Yet for that divers other matters required present Dispatch by the Parliament and the matters concerning the Union might be consider'd as well any other Session therefore the same was defer'd for that time Anno 4. Jac. 1. An Act is made for Repealing certain Acts of Hostility in former Ages made between the two Nations where the Commissioners lost all the Pains they had taken to the discouragement of any other who should thereafter attempt the like so by the Power and Subtlety of the Popish Episcopal Party and Lawyers all whose Interests a Reformation of Laws for Britannia would have crossed the whole business and Attempts of Union have been ever since obstâ—ncted As for Examples In former Histories we find none more free than the Romans to Naturalize their Associates and to make the Natives of the Provinces Citizens of Rome The Grand Seignior takes into his Council the Natives of several Kingdoms yea though Christians when once Educated in his Religion The several States of Greece had not been able to have subsisted against the Persian had they not United themselves in one common Council of State though their Laws and Commonwealths remained several The Netherlands had been never able to have subsisted against the Spaniard had not the Provinces been United in one Staadt-House and Common Council yet is not that Union perfect they remaining still under several Laws and Customs and in the nature of several Commonwealths and therefore not impossible to be again divided as the Grecian States thereby were So were it impâ—ssible for the German Empire to subsist against the Turk were they not United in one Supreme Dyet and Common Councli for a Parliament of Kings in person as the Electors are in Power is better than none at all and better than a Confederacy of Kings by Proxies they remaining in their several Palaces yet in many other respects the Union being of the Prelates and Princes and not of an equal Representative of the People it is liable to perpetual dangers of Civil Wars and the Dividing of one Prince against another who may perhaps as the Captains of Alexander the Great and the Italian Princes in the end set up every one for himself there being nothing to hinder but the Terror of the Neighbouring Turk whereas if the Union were constituted of an Emperor and Parliament equally Elected by the People the Empire were invincible for the Prince were then but one and the Senate but one but this is impossible to be performed except in Protestant Dominions for then must the Pope and Prelates be Cashier'd which no Catholick Prince can or dare attempt How great thanks do we therefore owe to God who hath vouchsafed Protestants so great a Privilege to Unite all their Parliaments if they in blindness and stubborness neglect or resuse not so great a Mercy as perhaps may not again be so easily offer'd The Cantons of the Swiss could not subsist without being United in a Common Council
for State-Assairs So of the Grisons Yet do the Cantons remain in the nature of several Commonwealths with several Laws and Customs which Union is very imperfect Livy lib. 2. complains of this defect of Union of Councils in Rome and saith Profecto si essent in Republica Magistratus nullum futurum fuisse Romae nisi publicum consilium nunc in mille Curias Concionesque cum alia in Esquiliis alia in Aventino fiant Concilia dispersam dissipatam esse Rempublicam And by this doth Tacitus confess it was that Rome Conquer'd Great Britain Nec aliud adversus validissimas gentes pro nobis utilius quà m quod in commune non consulunt rarus duabus tribusque Civitatibus ad propulsandum commune periculum conventus ita dum singuli pugnant Vniversi vincuntur Neither saith he was there any thing so profitable for us against the most valiant Nations as that they had no Common Council a rare matter it was amongst them to have a Convention of Two or Three Cities against the common danger so while they every one fought single they are all Conquer'd Whereas if Great Britain had been then united under one King and one Parliament of the whole Island they perhaps might have as well said of his second Landing as of his first Territa quaesitis ostendit terga Britannis So doth Justin mention of the States of Greece every one of them had at last their Councils apart and fought single whereby one after another they were all overthrown What hath United the Heptarchy of the Saxons and the mixture of Danes inseparably but the equal Mission of their Representatives to the same Parliament and what did Unite the Noble Remainder of Britains to England but the Statute of 27. H. 8.26 Enacting That all Persons born in Wales should enjoy all Liberties Privileges and Laws as other Subjects in England do and should send their Knights and Burgesses to the same Parliament with them The Glory of a King is the multitude of his People and what more Glorious for a King who hath the Royal English Scotish Irish and British Blood United in him who is the Head than to have the same United in his Parliament who is the Body Let it not offend if I mention here the late Experience of Union of the Three Parliaments in one House by the late Usurper seeing we are commanded to learn Wisdom though from the Serpent and if he under so great disadvantages of Opposition made great Benefit the lawful Prince may make far greater thereby and his Subjects likewise by his Favour participate of the same I cannot deny that it was my Fortune though I never sought it to be chosen for a County and to serve in that great Convention at Westminster Anno 1656. called then a Parliament wherein the Parliaments of England Scotland and Ireland were Convened and United in One with the same facility as they are Convened to sit in Three Places and there being then a War designed against Spain it was wonderful to see with what Expedition and Courage all things were moved towards the Design and what an Endearment it was between the Three Nations to meet be acquainted eat drink and converse together about the Common Concernments Having consider'd so far of the great Benefits of an Union of the Three Parliaments of the Three Kingdoms in One it may not be amiss next to consider the Requisits necessary to perfect the same 1. Whether an Union of Crowns be necessary to perfect an Union of Parliaments and Kingdoms It seems for the Affirmative 1. Because where the Natural Person of a King is One if the Politick Person or Capacity is not made One the one Politick Capacity may be divided against the other in the same Natural Person as on the Succession of King James to Queen Elizabeth the Queen of England had declared War against the King of Spain the King of Scotland was in Peace with them so in the diverse Rights of Two Crowns there was War and Peace at one time between the same Persons the like Doubts may arise Whether the Royal Assent may pass contrary Politicks Acts and Laws in the Parliament of one Nation to what he hath pass'd in the other in reference to the contrary Rights of each Crown Whereas if both are consolidated and made one no contrariety of Acts can happen 2. It is as dangerous to have Two Crowns as Two Marble-Chairs for they may be kept in several places and the more easily may an Usurper happen on the possession of one of them and the Vulgar be deluded to think Possession of those Signs of Supreme Honor to be equal to the Right and besides that a Fatality will follow them 3. Seeing it hath pleased God to make the Head of the Three Kingdoms One men ought to follow his Example and make the Crowns One 4. The continuance of several Crowns is apt to continue a perpetual memory of Hostilities between the Kingdoms 2. Whether an Unity of Protestant Churches is necessary to an Union of Protestant-Kingdoms It seems for the Affirmative Because if Protestant-Churches divide one against another the Kingdoms will be a Prey to the Papist and the Protestant will have none to Unite 3. Whether permission of Protestants to Excommunicate Protestants is consistent with the Unity of Protestant-Churches Neg. If the Pope Excommunicate Protestants it Unites them the firmer but if they Excommunicate one another they denounce War and destroy one another with their own hands and leave the Spoils to be divided by the Pope An Elegy on Protestants in the late Civil Wars Excommunicating Protestants LVgeat in trisidis jam moesta Britannia flammis Et doleat jam fulminibus percussa trisulcis Intonuit falsus nebulosa Tibride Petrus Et Magicis stolidum perterruit Artibus Orbem Piscator Twedae retonat multisque cachinnis Rupibus ingeminans sua fulmina misit ab Altis Becketi Lemures contra hunc torsere minaces A Thamisi gelidas Vulcania tela per auras Heu non Oceanus circum vaga Littora fusus Nec freta compescant tantis ardoribus ignes Risit Romanus Tarpeia Rupe Tyrannus Cumque suis inquit sese immisere Gebennis Pontifices Britonum per mutua vulnera tandem Ne sic deficerent inferno gurgite flammae Ipse super terram viventes igne cremabo Ecce jocum mintrat mus rodens Rana coaxat Et cum limosis ineunt certamina juncis Milvus spemque suam motis circumvolat alis Ipse paludosam sic vellem carpere Ranam Et sic ridiculum vellem discerpere Murem Englished LET Britain mourn who burns in triple Fires And struck with threefold Thunder-bolts expires A Peter false from Tyber in a Cloud By Magick Art did Thunder it aloud The Fisher-man of Tweed with many Mocks Return'd his Thunder double from the Rocks Proud Beckets Ghost ' gainst him from Thames broke forth And with Vulcanian Darts fired the North. What Ocean which her wandring Shores doth drench Or
his direct Judge next the Pope and without Consent of his fellow-Bishops who then all arose and humbly desired the Kings Clemency in his behalf but finding him Resolute they took away their fellow-Bishop from the Bar and delivered him to the Custody of the Arch-Bishop of Canterbury till some other time the King should appoint for his answer to what he was charged withal Shortly after he was again taken and Converted as before which the Clergy understanding The Bishops rescue a Traitor-Bishop from the Bar of Justice the Arch-Bishop of Canterbury York and Dublin and Ten other Bishops all with their Crosses erected went to the place of Judgment and again took him away with them Charging all men on pain of Excommunication to forbear to lay violent hands on him with which audacious Act the King was much displeased and presently Commanded inquiry to be made Ex officio Judicis Concerning those objections against the Bishop whereto he Refused to appear and answer and he being found Guilty of the same Judgment was passed against him as Contumaciously absent and thereupon all his Goods and Possessions were seised into the Kings hands this Act Lost him the Clergy and added Power to the Discontented Party which by Reason of the misfortunes of the Prince and his having advanced unpopular officers As Gaveston and Spencer were grown in the people and Concurred to his after Deposeing from the Throne and horrible Murder when Deposed Hence may be very well observed in what a sad Condition a Prince is who must Depend on the Protection of Bishops and their Excommunications And how shamelesly notwithstanding they will boast that no Bishop no King For here are France and Scotland Confederated against the Kingdom the King is valiant but young and unexperiensed his Bishops and Barons are Corrupted against him by French Pensions and cause the Overthrow of his Army he discovers one of the Bishops guilty of the Treason and had he not been Rescued by the other Traytor-Bishops his Companions he might perhaps have discovered the whole Plot and all his Complices The King very Justly Sentences him both as Mute and Contumaciously absent and seises on his Estate as forfeit What more Just proceeding than this here is no condemning without Liberty of Answer and Hearing yet this must lose the King all the Arch-Bishops and Bishops in England and Ireland and all the Clergy of both Kingdomes who received Ordination from them And they will no longer be his subjects unless he will allow them to betray and sell him to his Enemies and not Punish or question the Treason But all concur to irritate the Temporal Barons the people and his own Trayterous Queen to depose and destroy him And the Bishop of Hereford Preaching before her took this Text My Head aketh my Head aketh and thence drawes this wicked Doctrine and Use to a wife that she must cut off her Husbands Head who was her Head and when after the King was deposed and his son chosen the Arch-Bishop of Canterbury Preached in Westminster-Hall on this Text Vox Populi Vox Dei to encourage the people in the Treason which was after perfected by his horrible murder in Prison The next Consideration will be how this might have been prevented by his Renowned Father who was of such Wisdome Vigilance and Valour as neither Gaveston nor Spencer nor Bishops Dared to abuse if he had suspected they would have practised such Treachery against the younger yeares of his son Concerning which it seemes he was able and might have easily prevented it had he not Committed two oversights the one was That he only Banish'd Gaveston and had not cut off his head if he had deserved it for assoon as he was dead Gaveston returned again and corrupting the young King was the first occasion his Enemies made Use of to cast the vices and misgovernments of his Favorites on himself It may be here objected That perhaps though Gaveston was a wicked vitious person yet he might not be Guilty of any Crime for which he might be lawfully put to death To which is answered That it possibly might be so though it be not likely And if he were not Guilty of such a Crime he ought not to have been put to Death for a Throne cannot be Established by shedding Innocent Blood But neither he nor his son needed to have been Guilty of it for his son needed not have sent for him Contrary to his Fathers Command and though he incurr'd that fault the Lords cut â—ff his Head who must answer for it and freed him from the Guilt and danger of him The second oversight was of more weight that was When he made an Act against Mortmain for the future he had not taken away as H. 8. after did all that was before Mortmained And when he took the Moiety of the Reverend Fathers Money and Goods he had not taken all and when he Lopt the Branches of Privileges and Jurisdictions of Bishops and other Ecclesiasticks he had not took both Root and Branch For it is as lawful to take present Mortmaines as 't is to prohibit Future And if lawful to take the Moiety it was lawful to take the Whole And if lawful to take the Branches it was as lawful to take the Root of Hierarchy which if he had done This clear Benefit he had Received by it he had left his son secure from any Spiritual French Pensioners who are the most Dangerous sort of all other And the Temporal Barons could not have had without them so great and specious advantages to have Betrayed him 2 He had freed him from such Audacious Traytors as would Rescue their fellowes from the Bar of Justice which Temporal Barons never dared do 3 He had fâ—eed all his successors who should happen to be superstitious from having Rebellions raised against them and themselves Deposed by Excommunication by abolishing Bishops and their ordination which had been an advantage none of his neighbour Emperours or Kings could hitherto ever obtain nor if Bishops had been taken away Episcopal or Ecclesiastical Government by halves though it was sufficient to abate their Power as to himself it was worse for his Son than if he had done nothing at all for he thereby left Bishops and a Clergy full of Rancour in their minds for those blowes they had been beaten with by the Father which though they dare not revenge themselves on him yet did they on his Son to his destruction and though there never had been a Gaveston or a Spencer would have found other pretences enough for their Treasons which they could not have done had he cleane abolish'd them and not left a See for a Bishop to fit in Arch-Bishop threatens to Excommunicate Edw. 3. Edward the Third being with his Army in France and disappointed of his Supply of Treasure upon his last Return into England had in great displeasure Removed his Chancellor and Imprison'd his Treasurer with other Officers most of them Clergy men