Seas alas so many Flames can quench The Romish Tyrant on Tarpeia smil'd To see the Brittish Priests thus both beguil'd When they have sent each other unto Hell Saith he by mutual wounds hark what I tell Lest they want Fire should in the Pit profound I will them both alive burn above ground Behold the Jest the peeping Mouse and Frog With Bulrush fighting are on Hill and Bog Like Kite mean while hid in a Cloudy Day With soft mov'd Wings I 'le soar about my Prey So I at length the Croaking Frog shall gull And Mouse ridiculous in pieces pull I shall proceed next to the Form and whole Nature of Excommunication and the further manifold mischiefs it brings to all Protestant-Churches which shews Bishops who use it are neither sit Judges of Marriage nor of any thing else The Form of the Jewish Excommunication By Decree of the Cities and Command of the Saints We Anathematize and Adjure Exterminate Excommunicate Curse and Execrate by the Will of God and the Church by the Book of this Law by the Six Hundred and Thirteen Precepts written in the same by the Anathema wherein Joshua Anathematized Jericho by the Curse wherewith Elisha Cursed the Children and by the Curse wherewith he Cursed Gehazi his Boy and by the Excommunication wherewith Baruch Excommunicated Merath and by the Excommunication which the men of the great Synagogue use and by the Excommunication which Rabbi Jehuda the Son of Rabbi Jehezkiel used in this matter and by all the Anathemata's Imprecations Burnings Excommunications and Exterminations which have been from the time of our Master Moses and since by the name of Acetheriel Jah Lord of Hosts by the name of Michael the Great Prince by the name of Mittraton whose name is as the name of his Master by the name Sandalipon who Binds the Bindings by his Lord by the name of the name of Forty-Two Letters by the name of him who appeared to Moses in the Bush by the name by which Moses divided the Red-Sea by the name of Four Letters by the Writing which is Writon the Tables by the name of the Lord of Hosts the God of Israel sitting on the Cherubin by the name of the Sphaeres and Circles and the Holy living Creatures and Ministring Angels by the name of all the Angels which Minister to the Supreme God let every Israelite and Israelitess wittingly or willing violating any of the things denounced to be observed be Cursed to the God of Israel sitting on the Cherubims let him be Accursed by the Name Glorious and Bright which the High-Priest expresseth in the Day of Expiations let him be Cursed by Heaven and Earth let him be Accursed by the Omnipotent God let him be Accursed of Michael the Great Prince let him be Accursed of Mittraton whose name is as the name of his Master let him be Accursed as Acetheriel Jah Lord of Hosts let him be Accursed of the Seraphim and the Orbes and Holy living Creatures and Angels who Minister before the Supreme God in Holiness and Cleanness If he was born in the Month Nisan which the Angel called Vriel as Prince of the Rank under which he is Governs let him be Accursed of him and all his Rank and if he was born in the Month Jier which the Angel called Trephaniel as Prince of the Rank under which he is Governs let him be Accursed of him and all his Rank and if he is born under the Month Sivan c. this Cursing runs through every Month one after another in the same words Then follows Let him be Accursed of the Seven Angels set over the Seven Days of the Week and of all their Ranks and helping Powers let him be Accursed of the Four Angels set over the Four Quarters of the Year and of all their Ranks and helping Powers let him be Accursed of the Seven Palaces let him be Accursed of the Princes of the Law in the name of the Crown and in the name of the Seal let him be Accursed of the Great God strong and bright let their be Confusion of his Seed let him fall with a swift Ruin let the God the God of the Spirits of all Flesh destroy and cast him away let the God the God of the Spirits of all Flesh subdue him let the God the God of the Spirits of all Flesh overthrow him let the God the God of the Spirits of all Flesh keep him down let the Wrath of the Lord and a violent Whirlwind fall on the head of the Wicked let the Angel of Destruction fall upon him let him be Accursed in all things to which he sets himself let his Soul depart in Terror let him die of the Quinsey let not his Breath go out nor return with the Consumption Fever Burning Drought let him be smitten with the Sword with pining away with the Jaundice nor before his Destruction be freed from them let his Sword enter into his heart and let his Bow be broken let him be as Dust before the Wind and let the Angel of the Lord scatter him let his way be Darkness and Slipperiness and the Angel of the Lord persecute him let unlooked-for Desolation come upon him and let the Net which he hath hid take him let them Expell him from the Light into Darkness and from the habitual World they shall Banish him Tribulation and Straights shall terrifie him his Eyes shall see his own Destruction and he shall drink the Wrath of the Almighty let him put on Cursings as a Garment let him devour the strength of his Skin also God shall scatter him for ever and shall root him out of his Tabernacle The Lord will not rest to forgive him but the Wrath of the Lord and his Jealousie shall smoak against that man and all the Curses which are written in the Book of this Law shall lie upon him for Evil out of all the Tribes of Israel according to all the Curses of the Covenant which are written in the Law But you who adhere to the Lord your God bless you this Day he who blessed Abraham Isaac Jacob Moses and Aaron David and Solomon and the Prophets of Israel and those who amongst the Nations are Holy bless this Holy Congregation and all other Holy Congregations Except only He who shâ—ll break this Curse God of his mercy keep them and make them safe and take them out of all trouble and misery and Prolong their Days and their Years and send his Blessing and a prosperous Wind to the Work of their Hands and let Him Revenge them speedily with all other Israelites and so let his Will and Decree be Amen Seld. de Jur. Nat. Gent. Juxt Discip Ebr. lib. 4. Cap. 7.527 The Form of the Greek Excommunication against Thieves If they Restore not to him that which is his own and possess him peaceably of it but suffer him to remain Injured and Damnified Let him be Separate from the Lord God Creator and be Accursed and Unpardoned and undissolvable after
THE Night doth vanish when the Sun appears And from all Clouds the smiling Morning clears Romish Night-Ravens flie ye filthy Fowls And all ye Ceremonial Bats and Owls And Weather-cocks whose painted Feathers strange With every Wind God's Moral Law would change His Law is light the Sun outshines the Torch Which blindly Virgins led to the Church Porch Ye Meadows deck your selves with flowry pride Hear of an Holy Marriage and a Bride Not given by Man but God so great aad wise And by him Married as in Paradise With Beauty bright as Fire but chast and cold As Snow he Crowned her and not with Gold The Issue fair who did not Prophesie Sacred Religion Justice Liberty And Property providing of the best Both Bread and Wine for every Marriage Feast The Morall Law The Ceremonial Law Marriage by the Morall Law of God Vindicated Against all Ceremonial Laws of Popes and Bishops destructive to Filiation Aliment and Succession and the Government of Familyes and Kingdomes The Lord hath been a Witness betweene thee and the Wife of thy youth Mal. 2.14 1680. Linea Recta Proefertur Transversali RELIGION IUSTICE LIBERTY PROPERTY TO THE READER THE Writers both of Nature and Policy agree That the Original of all humane Society was Marriage by which Families were first composed consisting of Men their Wives and Children and after Commonwealths composed of those Families when by the multiplication of Generation they were grown so numerous as to be no longer able to preserve their Religion Liberty Propriety and Lives against one another without some Union of all obnoxious to receive or do Injuries under such Form of Government as was by the whole or major part of the Fathers of Families in their General Conventions of themselves or Representatives Consented and Covenanted for the common Peace and Happiness of all to both which no Constitution of Laws was more necessary than those which concern'd Marriage Filiation Aliment and Succession whereon not only private but publick Peace and War often depended and therefore Marriage being the Ordinance of God and not of Man it was impossible to lay any secure Foundation of the Rights of the same except on the Moral Law of God and no other was long observed either by the Jews or Gentiles than what was as Christ saith from the beginning till to break in pieces the Divine Tables of the same the Devil and the Priest conspired together to set up the Golden Calf of their Ceremonies and that Gods Ordinance should be null and void without them and no probation should be admitted of their performance but the Certificate of the Bishop or High-Priest by which as to matter of Succession to Inheritances and Kingdoms They bound their Kings with Chains and their Nobles with Fetters of Iron God was pleased to make the Contention concerning a Marriage between H. 8. and the Pope the occasion of breaking off some of the Links and of being a beginning of the Protestant Religion and Liberty and I hope he doth now offer the like or a greater occasion of propagating both to the present Age and Posterity and not only to break all the Reliques of the Chains but to file off the Collars themselves whereby the Bishop of Rome and the Provincial Bishops have long so gauled the Necks of Princes and People through all Christendom to the easing of which Burdens I should be glad if thou and so many other more fit than my self would lend your hands but seeing so many seeming to sleep in the midst of so great a danger I hope it ought not to offend if I hereby endeavour to awaken you and to be therein as I ought to be to my Power Your Servant Will. Lawrence THE CONTENTS Of the First Book BY what Law Marriage Filiation Aliment and Succession ought not and ought to be Judged p. 1. Not to be Judged by the Law of Moses or Customes of the Jews p. 2 Not to be Judged by the Laws and Customes of Heathen Nations p. 10 Not to be Judged by the Law Civil Canon or Feudal p. 21 Not to be Judged by the Law of Mahomet p. 26 Not to be Judged by Ecclesiastical Laws p. 31 All Allegations of Coke in behalf of Ecclesiastical Laws answer'd ib. Of the mischiefs ensue from Ecclesiastical Laws p. 43 1. All Ecclesiastical Laws of Marriage were invented by Daemons Pagan Priests or Popes ib. The History of the Devil appearing in the shape of Christ to Dr. d ee and tempting him and his Seer Kelly to Community of Wives p. 45 All prohibition of Marriage or Meat in any Ceremony or Circumstance not prohibited by the Moral Law of God came from the Devil p. 52 2. The Final Causes of all Ecclesiastical Laws of Marriage variant from the Moral Law of God were Lust Covetousness and Ambition of the Priest p. 53 3. They pester the Three Kingdoms with an unnecessary and excessive multitude of Laws p. 57 4. They corrupt the choicest Protestant Wits in their Education with Principles of Popery and Slavery p. 59 5. They introduce divers weights and measures of Justice in the same People ib. 6. They compell the Subjects ad aliud Tribunal than Caesars Judgment Seat ad aliud Examen than per legem terrae ad aliud judicium than legale judicium Parium ib. 7. They expose the Subjects to Circuit of Action Subornation Perjury and to be ground between two Milstones of interferring Jurisdictions Spiritual and Temporal 8. Papal Laws of Marriage are inconsistent with a Protestant Priesthood ib. Not to be Judged by such Laws of England Scotland or Ireland as are Reliques of Popery and contrary to the Law of God Of the Law making Marriage a Sacrament p. 65 Of the profound Popery of the Common Lawyers of Transubstantiation of two Persons into one Person and the mischiefs thereof p. 66 A Note taken at Kings-Bench-Bar of the miraculous Transubstantiation of a Shoulder of Mutton betwixt a Man and his Wife p. 71 Of the Law of Transubstantiation of the Children of the Wife into the Children of the Husband if within the Four Seas and of Intails p. 72 A further descant on the words of Littleton and Coke concerning the same and of Intails on Marriages depending thereon p. 73 75 Of the barbarous Law of Illegitimation or making Children incapable to succeed to the Goods of their Parents the Reformation thereof by the Emperor Anastasius and the Deformation of the same again by the Strumpet Theodora and succeeding Popes and Bishops p. 79 That unlawful Marriages of Parents ought not to Illegitimate their Children p. 80 Illegitimation of Children shews Popes and Bishops worse than Pagans Infidels Beasts Monsters Serpents p. 82 Intails Feminine cut off by Adoption or Institution by the Father of his natural Children Heirs ib. Of the Law of Consensus non Concubitus facit Matrimonium p. 83 Of the Pagan Goddess Juno and the Popish Mother of St. Kentigern both got with Child without a Man p. 85 Of the
worse then a Beast CHAP. III. Marriage Filiation and Succession not to be judged by the Law-Civil Canon or Feudall AS to the Author of the Civil Law or rather the Emperor in whose name and time the same was compiled he was Justinian whom though his own Parasites extoll'd for a God and his Lawyer Tribonian imployed by him or his Wife Theodora to do the work claws him with a doleful Compliment that he was in great fear least he should be rapt up into the Heavens when he little thought of it for his singular Piety to their insufferable loss Yet Procopius makes him a Devil and doubts very much whether he were not a Devil incarnate more likely when he little thought of it to be rapt to Hell Bodin indeed speaks something Fol. 17. may clear him from being a Daemon for he saith He was a blockish unlearned Prince and out-witted by his Wife Theodora when she pleased and caused by her to make Laws only for the advantage of the Women against the Men and Procopius likewise commends his Justice and saith That he used when he could catch them to take Bribes of sides and if any who had a Sute before him presented him with a Bribe he was sure to carry his Cause unless the other Party counterballanced him with another As to the Collection of Laws attributed to him it cannot be denied but there are a multitude of excellent Laws of Nature scatter'd through the great Mass of them but in such a confusion as is rather proper to a Chaos then an orderly Digest Then for the bulk 't is an Hundred times bigger then necessary and the Evil Laws which increase it to that greatness in number overwhelm and in Nature destroy or make useless the Good As to the Religion in them it is Popery and Superstition The Justice is Tyrannical and Arbitrary Government the Mercy of them is Racks and all inhuman Tortures Civil Law The Heads of the Civil Law prohibiting to marry are comprehended in the Verses following 1. 2. 3. 4. 5. Aetas Conditio Numerus Mona Et Ordo 6. 7. 8. 9. 10. Optio Nobilitas Sanguis Tutela Potestas 11. 12. 13.  14. Fons Sacer Affinitas Raptus Repugnat Honestas Irrita quae faciunt Connubia legibus haec sunt 1. The first cause making marriage void or voidable is Age if the Man is under 14 or the Woman under 12. 2. Condition If it be servile they were not allowed to marry Ceremonially but might lie with one another and get new Slaves 3. Number If a Man have one Wife he ought not to have another 4. If either Person be Monastick as a Monk or Nun. 5. Being within Orders as a Priest or Clerk 6. Adoption prohibits mariage between the Adopting and Adopted 7. Nobility heretofore prohibited marriage with a Plebeian and Senators and their Children per Legem Papiam Juliam with their freed Women or others of so mean Condition A wicked Law and contrary to the Law of God for they might lie with Plebeians but not marry them 8. Consanguinity in respect of which three sorts of Persons are consider'd the Ascendents Descendents and Collaterals 9. A Guardian is prohibited to marry his Pupil 10. A President of a Province is prohibited to marry one subjected to him by reason of his Jurisdiction in which two last cases the reason is that marriage might be free and not compell'd by the Awe or Power of Authority 11. Fons Sacer the Font of Baptism is by the Pope made to contract a spiritual affinity or kindred between the God-fathers and God-mothers and Child Baptized for whom or their Children to marry within the fourth degree is made without any sence as Incestuous as if within the degrees of Carnal kindred 12. Affinity in which are the same Considerations of Prohibition to marry as before in Affinity 13. Rape for by the Civil Law the Ravished was prohibited to marry the Ravishor 14. Such Matters as are thought against Honesty or are of ill report according to the Manners of the People Canon Law As to the Canon Law Aquinas Cajetan and others recite the Verses following which have left out some of these Matters relating to the Civil Law and added difference in Religion and other Matters withal to the Modern Canons in the manner following Error Conditio Votum Cognitio Crimen Cultus Disparitas Vis Ordo Ligamen Honestas Si sis affinis si forte coire nequibis Haec sociandà vetant Connubia facta retractant Which likewise may be easily understood by Exposition before made of the former But they are likewise many of them wicked and contrarg to the Law of God The Civil Law is a Cento of Rescripts of Emperors a frippery of Opinions of Doctors Planting the Sword for the Ballance Superstition for Religion Tyranny for Government Antinomies for Laws Torture for Judgment Gain for Godliness Iniquity for Justice Confusion for Method Fiction for Truth Form for Matter Manner for Merit Ceremony for Substance a Powder of Impertinents a Remedy worse than the Disease a Whirl-pool of Vertigoes a Rock for Shipwracks a Gulf to swallow Money a Sea driven with contrary winds a Bottomless Deep of Doubts a Chaos of Controversies an Abyss of Darkness a Bulk broken with it's own weight Canon Law Anno 1520. The Pope and Papists Excommunicating Luther he appealeth to a Council and burneth the Canon Law and the Popes Bull at Wittenberg Calvin tit Cynus writes of him thus Cynus jurisconsultus Pistorii natus Dyni Maxellani auditor Bononiae jus civile professus est librosque de eo non paucos ita scripsit ut semper à Pontificiis canonibus abhorret In interpretatione l. quoties C. de Jud. scribit Canonicum jurisconsultum secisse sibi jura pro libitu voluntatis suae leges civiles servare eas ad commodum suum non autem contra se propter ambitum secularis jurisdictionis usurpandae non propter aliud Cynus a Professor of the Civil Law at Bononia and one wrote many Books concerning the same yet did always very much abhor the Papal Canons and writes in interpretation l. quoties C. de Jud. that the Canonists made all their Laws according to their own Arbitrary will and observed the Civil Law only for their profit and not when it made against them out of Ambition to usurp Temporal Jurisdiction to themselves and to no other end The Canon Law is deservedly likewise censured by the Lord Bishop of Lincoln in his late learned Book against Popery fol. 35. where having recited many wicked positions in it he concludes in these words Thus much and may be too much for the Canon Law that sink of Forgeries Impiety and Disloyalty for I scarce know any Book wherein are more forged writings under good name sometimes for bad purposes and more impious Doctrines and Positions own'd and authoriz'd for Law and that by one who pretends though without and against reason to be Christ's Vicar and
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
Distrained or Sequestred which a Woman cannot be 3. As to return in specie and not in value I say to deliver a Woman to a Man to be lain with against her will is a Rape on the Woman and the like is it of a Man to compel him to lye with a Woman who claims him against his will 4. This indangers the lives of Man and Woman who are mortal Enemies by Poison Sword or other wicked ways when compelled to Co-habitation against their will 5. To sentence either Man or Woman to be taken in specie not in Value according to the practice of the Ecclesiastical Law bring in the great absurdity and wickedness mentioned by Fortescue p. 75 Fortescue 76. where speaking of Tryal by Witnesses in the Bishop's Court he saith If a Man and a Woman make a private contract of Marriage without Witnesses One man Sentenced to lie with two Women and punished for lying with each and after the Man and another Woman make a contract of Marriage before Witnesses shall he not in the Contentious Court be compelled to marry her and also after that in the Penitential Court be adjudged to lye with the first if he be duly required and to do penance as often as by by his own motion and procurement he lieth with the second though in both Courts the Judge be one and the self same person In this case as it is written in Job 40.17 Are not the sinews of the stones of Behemoth wrapped together or perplexed Fie for shame they are perplexed indeed for this Man can carnally company with neither of these two Women nor with any other without punishment of the Contentious Court or Penitential Court but such a mischief inconvenience or danger can never happen by the way