by her assent the Emperor is endeavour'd to be stoned by the people in hatred of his Concubine Zoe pacifieth the people Ib. Impotency and Sterility is a cause of Divorce The Law of Solon allowed Impotency in the Man or Sterility in the Woman to be a good cause of Divorce Plutarch in Solon vid. Aust contra c. because then old Folks might not Marry Such was the modesty of ancient times in Rome that from the first foundation of the City for the space of Five Hundred and Twenty Years there happened no Divorce between a Husband and Wife Val. Max. l. 2. cap. 1. And the first who began it was Spurius Carbillus who put away his Wife for Sterility which though it seem'd a tolerable cause yet wanted not reprehension from divers who thought the Conjugal Faith ought to overweigh the desire of Children Anno 631. Dagobert the great King of France repudiated his first Wife for Barrenness and Marrieth Nantildis a Nun Amandus a Bishop reproves him and he banisheth the Bishop afterwards having a Son he revoketh the Bishop to baptize him Calais Anno Christ 1263. The Queen of Bohemia being old and Barren the King intendeth a Divorce she layeth the fault on him he maketh her this offer That she should appoint him a Maid and if he got her not with Child in a Year he would be reputed faulty the Queen accepteth it and in Ten Months he hath a Son and afterwards divers Daughters She is Divorced and Marrieth Kum Grand Daughter to the Duke of Muscovia Chron. Boh. Regner King of Denmark Anno 820. marrieth Langertha a Warlike Woman of Suevia and had by her Fridlanus and two Daughters Crom. After he Repudiateth Landgertha for the inequality of the Match and Marrieth the Daughter of Hezotus King of Suevia by whom he had many Sons Crom. Anno 1354. Peter King of Spain repudiateth Blanch Daughter to the Duke of Bourbon and Marrieth Jean de Castro Histor Hispan Anno 1373. The King of Portugal refused a Match in Castile and taketh a Nobleman's Wife and banisheth him his Subjects are discontented with him Hist Hisp Anno 696. Pepin King of France repudiated his Wife and married Alpaida his Concubine by whom he had Charles Martell and he kill'd Lambert Bishop of Thuring for reproving his Marriage Am. Fris. Anno 576. The Wife of Chilperic King of France was divorced and thrust into a Monastery for being Godmother to her own Child Truon Charles the Eighth of France was Espoused to Mary the Daughter of Maximilian Maximilian marrieth Ann the Daughter and Heir of the Duke of Britain by Deputy The King of France repudiates the Daughter of Maximilian and marries the Daughter of the Duke of Britain Luis the Twelfth of France repudiates his Wife and marries Ann his Predecessor's Widow Anno 1333. The Marquess of Misnia having married Judeth the Daughter of the King of Bohemia the Emperor causeth the Marquess to repudiateher and marry his Daughter The King of Bohemia taketh divers places in Misnia and giveth Judeth to John Son of the French King Dub. The Arch-Bishop of Gnesna in Polonia forced Married Priests to be Divorced from their Wives Alsted Anno 1218. Lewis the Seventh King of France having married Elianor Daughter and Heir of William Duke of Guyen and having two Daughters by her notwithstanding divorced himself from her on pretence they were Couzins in the fourth degree She was after married to Henry the Second of England who had by her Five Sons and Three Daughters and was she who revenged her self on Rosamond though not in so high a degree injurious to her as Adela the Daughter of the King of France affianced to her Son Richard who was after King was suspected to be of whom it was commonly reported That her Husband was so far inamor'd that he having Committed Elianor to Prison resolved to be divorced from her and marry Adela Bak Hist 55.59 King John having maâ—ried Avice Daughter and Heir of Robert Duke of Gloucâ—ster having no Issue by her divorced himself from her alledging that she was his Couzin in the third degree Juan Daughter of Edward the First for her Beauty called the fair Maid of Kent was married first to William Montacute Earl of Salisbury and from him divorced but it appears not for what cause and was after married to Sir Thomas Holland in her right Earl of Kent and Father of Thomas and John Holland Duke of Surrey and Earl of Huntingdon and lastly she was Wife of Edward of Woodstock the black Prince of Wales and by him Mother of the infortunate King Richard the Second Henry the Eight married first Katharine Daughter of Ferdinando King of Spain the relict of his older Brother Arthur and was after Twenty Years marriage and the Birth of his Daughter Mary after Queen of England by her divorced from her on the opinion of some Divines that it was not lawful for him to marry his Brother's Wife and having successively married two other Wives after their death he married his fourth Wife Ann Sister to the Duke of Cleave she lived his Wife six Months and then was likewise Divorced Civilians Canonists Divines Lawyers and one Pope against another Aliment of Children and all by the Ears about Divorce and unless as we ought we wholy consult the Moral Law of God there is not a word of sence in the Laws of men but they are all for gain As Desertions and Divorces of Mothers without cause have been too frequent both amongst Gentiles Jews and Christians so likewise is the Desertion and not giving Aliment to Children Aristotle stain'd his Philosophy with the bloody Doctrine of exposing Infants The Chinoys who are poor think it Charity to strangle their Infants and save their Aliment Fornicators make it their custom to deflour Virgins and get them with Child and then illegitimate and desert both Mother and Child to save the charge of Aliment And oh horrid amongst Christians who le Parishes rise with Swords and Staves against one poor Sucking Babe to exterminate both it and the Mother naked and to be Vagabonds to beg steal or starve only to save so small an Alms as Aliment to one poor Infant not able to speak or beg for it self It is related by Travellers that some Indians use when a Child is born if it take not to suck the Dug of the Mother well they carry it out of the House and hang it naked on a Tree and leave it there returning themselves into the House after a while they go out again and bring in the Child and offer it the Teat if it take it not they carry it the second time and let it hang twice as long and fetch and offer it the Teat again if it take it not then they hang it on the Tree the third time and leave it hanging till it dies God made man righteous and writ the Moral Law in his heart but since the Devil hath seduced him to the Ceremonial he is become
Children the same ought to be wholly and intirely performed to such Sons and Daughters in all Successions whether to a Testament or an Intestate And in short that they ought not to be made unlike other Children in Successions whom Nature hath made like Hence it appears that the Civil Law wills the Succession of Children shall be according to the Law of Nature and not according to any Canon Law or Law made by the Priest Natura duce errare nullo modo potest Tul. 1. de leg Cum vero parentibus rediti deinde Magistris traditi sumus tum ita variis imbuimur erroribus ut vanitati veritas opinioni confirmatae natura ipsa cedit 3. Tusc Where nature is our Guide it is impossible to err but when we fall into the hands of Parents and are delivered to Shool-Masters we are then infected with so many Errors that all truth gives place to vanity and Nature it self yields to opinion accustomed To fight against Nature is like Giants to fight against God Cato major Of the Final Causes of Marriage by the Law of God and Nature The Final causes of Marriage which is the Ordinance of God and not of Man are not to fill Priests pockets with money or to satisfie their insatiable Covetousness and Ambition to set their Foot on the Necks of Emperours and Kings in their Legitimations and Successions and thereby to dispose of the Kingdoms of Princes and the Liberty Propriety and Goods of the Subjects at their Arbitrary will and pleasure But the Final causes of Marriage by the Law of God and Nature are three 1. Procreation of Children 2. That Man might have an Help-meet for him there being many necessities especially in time of sickness wherein Man cannot be without the help of a Woman 3. To make his life more pleasant and delightful Tristis sine conjuge lectus As for the first part which is the greatest and chiefest end of Marriage namely procreation of Children without which the World cannot be continued To be the shorter I shall only mention one Poet as follows Providei ille maximus mundi-Parens Cùm tam rapaces cerneret fati minas Vt damna semper sobole repararet nova Excedat agedum rebus humanis Venus Quae supplet ac restituit exhaustum genus Orbis jacebit squalido turpis situ Vacuum sine ullis classibus stabit mare Alesque Coelo deerit silvis fera Solis Aer pervius ventis erit Sen. in Hippol. Fates cruel Threats when the great Parent saw Against his Creatures by as great a Law He then Inacted all those whom it slew Sould by new Births perpetually renew Should Venus lease and should not still restore With fresh Supplies Natures exhausted store On squalid Earth no Beauty would remain No gallant Fleets would dance upon the Main No Deer in Woods no Birds would be in Skie Winds only through sad Air would sighing flie There could be neither King nor Parliament nor People nor Governours nor Governed neither could the Protestant Religion defend it self against Pope or Turk without Marriage for though it be Apocrypha it is truly said Esdras 4.15 Women have born the King and all the People that bear rule by Sea or Land The End of the First Book THE CONTENTS Of the Second Book BY what Judg Marriage Filiation Aliment and Succession ought not and ought to be Judged Of the Five Competitors to be Judges of Marriage Filiation Aliment and Succession 1. The Bishop 2 The Magistrate 3. The Souldier 4 The Parents 5. The King and Parliament 137 Exceptions against Bishops being Judges in reference to the Legislative ib. Except 1. They assume to be Judges Jure Divino without a Sign of Mission from God which overthrows the Legislative Power of the King and Parliament ib. Of the Sign of Mission required by the Grand Seignior from Sabatai Sevi a counterfeit Jewish Messiah 139 2. They have falsely translated the Scripture in all words relating to Marriage 142 They have falsely translated Ish Isha Zona Kadesh Philiegesh 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Husband Wife Harlot Concubine c. 142 No such as word as Concubine in the whole Original Scripture ib. They have falsely translated the Seventh Commandment Lo Tinaph to be Adultery 145 They have falsely translated 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to be Fornication ib. They have falsely translated the Tenth Commandment in the words Wife Man-Servant Maid-Servant 146 They have falsely translated Mamzer in the Old and Nothus in the New Testament Bastard Wherein are noted the Errors of Coke Skene and Grotius in following Episcopal and other Popish translations ib. Of the absurdity of Common and Ecclesiastical Lawyers who make the Child born without the Ceremonies of a Priest and Temple no Sib Kin or of Blood to the Father who begot or the Mother who bare him 154 155 Further Reasons shewn that they have falsely translated Mamzer in the Old and Nothus in the New Testament Bastard 156 No such word or thing as Bastard in the whole Original Scripture or amongst the Hebrews Greeks or Romans 3. They have corrupted the Press both as to Scripture and Acts of Parliament and interdict Protestants to Print against or answer Papists 162 A Counterfeit Act of Parliament Printed by Bishops against Protestants and the true supprest 163 Mischiefs which follow the Interdiction of the Press to Protestants 164 165 4. By pretence of giving the King the name of Supremacy they have taken the thing to themselves 167 5. By pretence of giving the King Supremacy by the Ceremonies of the Coronation they take it from him to themselves 169 David Anointed and Crowned by his Parliament and not by the Priest 173 6. They assume in all matters concerning Marriage Filiation Aliment and Succession to be above Appeal to the Kings Courts 175 Of the abominable Judgement pass'd by the Common Law Judges in Kennes Case Coke lib. 7.42 whereby they gave away the Supremacy of the King's Courts to Bishops and made them in all causes Matrimonial subject to no Appeal ib. Exceptions against Bishops being Judges in reference to the Judicial Power 180 1. They are prohibited by the example of Christ to Judg Marriage Filiation Aliment or Succession ib. 2. They are totally ignorant of the Fact and were never Educated in the Laws by which they pretend to Judg Marriage 181 3. They Judg by a Chancellour and not in Person 4. They have Plurality of Offices and more than they are able to serve yet will be Judges of Marriage besides ib. 5. They are ambidextrous and amphibious Judges 182 6. They Judg Marriage by pretended Canons and Laws made by Bishops without assent of Parliament ib. 183 7. They take to themselves Fines and Penalties of their own Judgments 184 8. They Licence Dispence and Pardon all Crimes within their pretended Jurisdiction for Money 9. They cannot be known whether Protestants or Papists if Bishops 185 10. They Judg by Fictions and not by Truth 11. They Judg
there is no such Miracle ensues from Episcopal Unction or Consecration neither do they shew any sign of Mission to Anoint as Samuel did but every man that is born hath a sign of Mission from God to Contract with that Prince under the protection of whose Sword he happens to be born to yield him Subjection for Protection and to concur with the whole Body of the other Subjects to present him with a Symbol or sign of the same with a Crown or Oil as here the men of Israel and Judah do to David 2. David anointed by his Parliament That the Anointing which gave David the Investiture of the Kingdoms was made by the Representative of the People in Parliament and not by the Priest for it is said That all the Tribes and all Israel and all the Elders which were a Senate or Parliament to treat for the People and make a League and Covenant with the King for it was impossible for him otherwise to treat with so great a multitude as all Israel had they not agreed to Elect a fit Representative for them therefore it is said The Elders anointed David and no mention made of the Priest neither had the Priest any Law of Moses to anoint Kings 3. That as there was no Crown sent David from Heaven for his Coronation whereby Pontifical men might pretend to have the disposing so there was no Oil sent thence for â—is Anointing but he received both from the People And surely the Mission of the Oil of Rhemes thence is as great a Fable as of the Crown of Nimrod or of the Image which fell from Jupiter neither did there need any Consecration of either for by the Customs of most Nations Crowns and Unctions were but civil Ceremonies of Honour given to the Parties which received them not only in Elections of Kings but almost in all other Solemnities as Military Triumphs Olympick and other Games yea even in their ordinary Feasts both of Aegyptians Greeks and Romans Habent Vnctae mollia serta Comae Ovid. Which shews both Crowning and Anointing of their Guests with Garlands or Crowns of Flowers and Unction with Oil of the Olive both which materials though more properly made by God than Crowns of Gold and Oils confected and Consecrated yet were esteemed but as civil Ceremonies and were a ministred by Lay-hands without a Priest And of this civil Festival Honour of Anointing used amongst the Jews as well as other Nations Christ is pleased to take notice Luke 7.36 My Head with Oil thou didst not anoint but this Woman hath anointed my Feet with Ointment And though both Coronation and Unction were but civil Ceremonies and of humane Institution where no Miracle testified a Divine yet is David called God's Anointed more truly than if he had been anointed by the Priest seeing God gave the Priest no Mission but yet himself turned the Hearts of the People by the civil signs of Coronation and Unction to acknowledg David for their Sovereign for which he himself giveth thanks and saith Psal 18.47 God subdueth the People under me 4. That David doth not make a League and Covenant with the High Priest but with his Parliament who were the Convention of Elders who anointed him 5. That though there had been long Civil Wars between Judah who followed David and Israel who followed Isbosheth the Son of Saul and Abner his General was dead and Isbosheth was dead and there remained with him Victorious and Veteran Armies yet neither Judah nor Israel anointed him till he had first made with them a League and Covenant 6. From hence may be discover'd the great Mystery of Iniquity whereby Popes have terrified Emperors and Kings as their Vassals to receive Crowns and Unctions from them which hath been only by persuading That none but Bishops could Crown or Anoint them the manifold mischiefs of which to Princes and People are too long here to be recited only whosoever will consider them will find it clear That Bishops who have pretended or may pretend to so dangerous a Tâ—nent as That none but they have Right to make Coronations and Unctions are no fit Judges of Successions to Crowns They assume in the Judgment of all matters concerning Marririage Filiation Aliment and Succession to be above Appeal to the Kings Courts It hath been already shewn that Bishops by assuming a Power Jure Divino without shewing a sign of Mission and by false translating Scripture and by corrupting and interdicting the Press exercise a Power superior or equal to the Legislative from which doth follow That such as are Legislators or assume or exercise such Power ought not to be Judges Delegate 1. Because Legislation Supream and Judgment Delegate are two distinct Offices and ought not to be confounded 2. Because it is Repugnant that a Legislator should be a Delegate to himself for in Presentia Majoris cessat potestas Minoris the lesser Power is lost in the greater 3. If wrong Judgment happen to be given there can be no appeal but to those who did the Wrong whereby they become Judges and Parties and Judg in their own Case 4 A Power Delegate to Judg without Appeal ceases to be a Delegate Power and is greater than the Legislative which Power that it is assumed by the Bishops in all Matrimonial Causes is the thing next to be shewn Of the abominable Judgment passed by the Common Law Judges in Kennes Case Coke lib. 7.42 whereby they gave away the Supremacy of the King's Courts to the Bishop and made them in all Causes Matrimonial subject to no Appeal Mich. 4. Jac. In the Court of Wards between Thomas Robertson and Elizabeth his Wife Plaintiff and Florence Lady Stallenge Defendant The Case was This Christopher Kenne Esq was seized of the Mannor of Kenne in the County of Sommerset holden by Knights Service in Capite and 37. H. 8. de facto married Elizabeth Stowell and had Issue Martha the Mother of Elizabeth one of the now Plaintiffs and after 1. 2. Ph. Mar. in the Court of Audience between the said Christopher Kenne Plaintiff and Elizabeth Stewell Defendant the Judg there gave a Sentence in these words Pretens ' tractat ' contract ' sponsalia Matrimonium quin verius Effigiem matrimonij inter Christopherum Kenne Elizabeth Stowell in Minore sua impubertatis aetate eorundem aut eorum alterius de fact ' habit ' contract ' celebrat ' fuisse esse eosdemque Christopherum Eliz. tam tempore contractus Solemnizationis dict' pretens ' matrimonij quam etiam continuo postea idem matrimonio pretens ' Solemnizationi ejusdem dissensisse contravenisse Reclamasse Reluctasse ac eo praetextu hujusmodi Pretens ' tractat ' sponsalia matrimonium de jure nullum nulla irritum irrita cassum cassa invalidum invalida minus efficax inefficacia fuisse esse viribusque juris caruisse carere carere debere Nec non Antedictos Christopherum Kenne
the Kings Courts 2. He rests not there but says Iisdem licentiam ad alia vota convolanda concedimus So that here not only Licence may be had for Money to Marry but for the same to leave the old and make a new choice as often as they please And my Lord Coke will have the Common Law to give such Faith that they ought not to question these doings true or false right or wrong which sets all Women and Men to Sale for Money and gave the occasion to Cornelius Agrippa to call all Ecclesiasticks Panders General for their Profit 3. The Common Law Judges give the Bishop the same Supremacy of Power in Matrimonial Causes since the Protestant Religion hath made Marriage no Sacrament as they had in the time of highest Popery and made it a Sacrament though Sublata causa tollitur effectus The same ceasing to be a Sacrament and becoming a mear Temporal Contract the old superstitious Faith of a Sacrament ought not to be given those who are no Judges of Temporal matters 4. It is worth a smile in this Case were it not so wicked to see how hot the Common Lawyers were a while in the scuffle for Supremacy of Marriage But no sooner had the Bishops turn'd the muzzles of the Romish Canons against them and discharged their piece of Conjuring in a strange Language instead of a Sentence but our Worthies of the Law fell flat on their faces and yielded the Royal Fort of the Prerogative and all the Protestant Subjects Laws and Liberties eya Magna Charta it self to the Mercy of the Enemy by so abominable a Judgment that no Appeal lay to the Kings Courts against the Sentence of a Bishop touching Marriage Filiation or Succession true or false right or wrong with cause or without cause a Resolve deserving to be mark'd with a Note of perpetual Infamy and Razed out of all Records On which and other Reasons though in most parts of Christendom the Clergy generally composed one Estate of the Country yet since the Reformation they were excluded from being any part of the Estates and of Holland neither were they allowed any Vote in their Assembly and far less Reason have they in England seeing they have equal Privilege here with the Gentry and all other Lay-free-holders in Election of Knights of the Shire to assume any other Power in the Legislative Temporal or Spiritual either in Person or by any other Representative The like Practice is likewise in Venice though they are Catholicks where before the Council sits the Cryer with a loud Voice commands all Priests out of Doors lest they should discover the State secrets to the Pope and likewise assume the Supremacy of Judgment from the Temporalty to the Spiritualty to produce which effects they are a dangerous ingredient to be mixt in how small a quantity soever in any Supream Council and a little Leven of so active a Fermentation Leveneth the whole Lump A Reason is given by Aeneas Silvius why it was held by more That the Pope was above a Council than a Council above a Pope because Popes gave Bishopricks and Arch-Bishopricks but Councils gave none Which doth not only hold in meer Spiritual Councils but in such Spiritual Councils as are mixt with the Temporalty in which the Spiritualty are always Bribed and Pension'd by the gift of their Offices And this is apparent and needs no further proof And if any of the Temporalty receive the like Bribes and Pensions upon lawful proof thereof made it cannot be denied that neither of them are equal or fit Legislators and much less Judges of the Holy Laws of God of Marriage Filiation and Succession of Subjects and least of all of Kings Exceptions against Bishops being Judges in reference to the Judicial Power 1. They are prohibited by the example of Christ to Judg Marriage Filiation Aliment or Succession We Read Christ was at a Marriage-Feast but it was so poor a one they wanted Wine and 't is likely he would have helped them to none had the man been rich for he might have bought enough for his Money without Miracle But Christ shewed his Bounty to the Poor and the Rich he sent empty away We read likewise he taught the Doctrine of Marriage but it was according to the Moral Law of God and all Ceremonial Laws he Established neither did he or his Apostles ever join any hands by the Ceremonies of a Priest or Temple nor ever spake of any other joining Man and Woman together but by God only as it was from the beginning And as to the point of being a Judg of Marriage Filiation Aliment and Succession he utterly refused it though he knew the Fact and the Right far above any Bishop as appears Luke 12.14 And one of the company said unto him Master Speak to my Brother that he divide the Inheritance with me And he said unto him Man Who made me a Judg or a Divider over you To give Judgment in this Case according to Episcopal Doctrine Christ must first have enquired with what Ceremonies the Father and Mother were Married whereby the Marriage must have been first Judged Then Whether these two Brothers were begot before the Ceremonies or after and whether there were Witnesses at the begetting which concerns Filiation Then Whether the Inheritance which according to the Romish Law then Imperial in Judaea included both Lands and moveable Goods were left by a Testate or an Intestate which would have concerned the Aliment and Succession but Christ in a word refused to Judg any of these And those who alledg themselves his Successors ought to follow his Example who if he sent them sent them to teach and not to Judg. For he saith Go teach all Nations but there is not a word of Judging any Nation 2. They are totally ignorant in the Fact and were never Educated in the Laws by which they pretend to Judg Marriage That 't is impossible for them to know the Facts of Marriage or Filiation or to receive any Testimony of the same is already shewn and proved P. 104 105. and indeed the Cook with his white Sleeves who dress'd the Wedding-Dinner and the Tailor who made the Wedding-Cloaths and the Midwife and Gossips who eat the Pie and drunk the Bowl if any Certificate or Judgment were at all necessary as to the Fact of Marriage and Filiation besides that of the Parents were far more credible and fit than the Bishop's who was an Hundred Miles off at the time of getting the Child and of all these doings besides And as to the Law 't is known they were never Educated either in the Civil Canon Common or Statute Laws the knowledg of all which they themselves cannot but acknowledg are necessary to make up an Ecclesiastical Lawyer by which is manifest they are as ignorant of the Law of Marriage and Filiation as they are before proved to be of the Fact With what Face or Conscience can they undertake to be Judges of what they
because in their making there was no Consent of an House of Commons and the House of Commons being but Delegates themselves can not Delegate the Peoples Interest in the Legislative to others for Delegatus non pâ—test delegare it was an Office of Personal Trust reposed in the Persons Elâ—cted to be Members of Parliament to treat with the King and assent to equal Laws in behalf of the People they could not grant over therefore this Office of Trust to Bishops or a Synod or a Council to treat with the King and assent to Laws for the People but every Member of Parliament ought either to refuse to accept of the Election or if he accept to serve in Person All Books of Canons made by Bishops without consent of Parliament void and not by Proxy assign or subdelegate in so great a Trust as to join in making Laws for the Publick Safety and Peace Hence will follow therefore That all Ecclesiastical Canons and Laws of Synods and Councils prohibiting Marriage without Publick Bans or Episcopal Licences and all Canons prohibiting Marriage in time of Advent Septuagesima and Rogation and all Canons prohibiting Marriage within degrees of Consanguinity and Affinity not prohibited by the Moral Law of God and all Canons prohibiting Marriage not made by the Ceremonies of a Priest and Temple and all Canons of the Council of Trent making null and void all Marriages not made before a Priest and two Witnesses are all in themselves utterly void for the House of Commons never assented to their making and all Laws prohibitory of Marriage being before shewn to be contrary to the Moral Law of God and to come from the Devil P. 52. and it being here shewn that they have no consent of Parliament such Books of Canons must in both respects be of necessity null and void as being neither the Laws of God nor Man in England but of the Devil according to which Books of Canons Bishops therefore Judging of Marriage contrary to the Moral Law of God and without any positive Law of Man their Judgment must likewise be void being according to the Law of the Devil and such Persons are no fit Judges who judg according to such Laws 7. They take to themselves the Fines and Penalties of their own Judgments That the Sole and Final Cause why Bishops so eagerly contest for the Jurisdiction of Marriage is Filthy Lucre is shewn before P. 52 53. c. and the same is so great a Pillar of the Kingdom of Anti-Christ that Pope ruin'd where Episcopal Jurisdiction of Marriage is taken away take but away Episcopal Jurisdiction of Maâ—riage the Papal Power is immediately ruin'd in those Provinces wheresoever it is done 1. In regard of the infinite Treasure he heaps hereby which appears before P. 52 53. 2. In regard of the Power he gains hereby over Kings and Princes in assuming to himself the Judgment of Filiations and Successions to Kingdoms 3. By enticing Princes to unlawful Marriages contrary to the Moral Law of God and procuring them to take his Dispensations for thereby such Prince and his Successors will be in great danger as to his Title unless he expose his Interest and Religion to obtain assistance from the See of Rome which made Philip the Second King of Spain who Married Queen Mary so furious to support the Catholick Religion in the Low Countreys by Fire and Sword and to make a Law That none should succeed him in the Government of those Provinces unless he took an Oath to maintain the Catholick Religion there and maintain the Authority of the Church of Rome And this made Queen Mary so cruelly furious against Protestants in England the Title of her Mothers Marriage and her Succession depending on the Popes protection And wheresoever any Prince is promoted by the Popes Canon Laws contrary to the Right of Succession instituted by the Moral Law of God such Prince to defend his Title against the right Heir by the Moral Law of God and his Successors become assured Vassals to the Religion and See of Rome 4. The Pope by procuring and dispensing Marriages of Catholick Ladies with Protestant Princes gains a numerous increase of Catholicks in those Dominions and many times turns the whole Tide to carry Tribute to Tyber But to return to the lesser Rivers the Bishops 't is no small stream of gain flows in to them too by such an unjust Power of Bribing themselves to Injustice by exercising so Arbitrary a Proceeding as to Fine and Commute what they please and putting it in their own Purses which should go to the Publick Treasury 8. They License Dispense and Pardon all Offences against the Law for Money It is to no purpose to make Penal Laws if the Judg hath liberty to License Dispense and Pardon Offences against them and nothing better enables him to do it than to allow a Judg to Fine or Commute and to put the Fine or Commutation Money in his own Purse now the Power of Licensing Dispensing and Pardoning Offences against the Laws of Marriage or any other Law must of necessity so corrupt the Judg as he will protect and increase the Vice he pretends to suppress Hence the Popes Taxa Camerae and the Bishops Courts increase more Fornication and Adultery than aâ—l the loose Women in the Countrey They are therefore no fit Judges of Marriage 9. They cannot be known whether they are Protestants or Papists if Bishops The Laws of Marriage have a very great influence on all Religions and in all Nations but more specially God hath been pleased in England to make the same the chief means and occasion in the time of H. 8. of planting the Protestant it is therefore of very great concern for the Preservation of the same that the Judges of Marriage be Protestants and it cannot be known whether they are so or no if Bishops 1. Because the excess of Riches which the Jurisdiction of Marriage Filtation and Succession especially to Kingdoms carries with it and all other Profits of a Bishoprick joined therewith are so great as may be too much a Temptation to any unless a Saint by Miracle to be of any Religion to obtain them and Christ himself Matth. 19 24. makes this Temptation so difficult to be resisted that he saith It is easier for a Camel to go through the Eye of a Needle than for a rich man to enter into the Kingdom of Heaven yea he makes a Miracle necessary for any to obtain Riches and Heaven together for he saith Verse 26. With men this is impossible but with God all things are possible And Austin in imitation of this confesseth in effect the same difficile imò impossibile est praesentibus futucis bonis frui It is difficult yea impossible to enjoy the good things of this World and of that to come Damasus Bishop of Rome endeâ—vour'd to convert Praetextatus a great Heathen Phâ—losopher to Christianity he answer'd him Make me Bishop of Rome and I will turn
not yet it prohibits unlawful Invasions amongst all which that of Conscience is the greatest with a Denunciation of the ill Success shall follow sufficiently verified in the many Examples of Emperors and Princes when they went to make War against such as Defended their Conscience 2. To Plant Religion by the Sword is a Relapse to Popery and we commit that Crime our selves which we impute to be the highest in them 3. Error in Conscience is not in the Power of the Party to Redress it is unjust therefore to Impose a Penalty for what was not in the Parties Power to prevent before or amend after 4. Thoughts ought not to be punish'd by men before they break into External Acts or at least discover themselves by Words or Deeds to External Witnesses 5. Tests Penal are no other than the Romish Inquisition compelling men to accuse themselves Criminally or to commit Perjury to avoid it or to rebell to Defend themselves against it 6. Protection is the more Honourable which is hence given the Consciences of Foreign Protestants against Foreign Papists by how much the more merciful the dealing is of the Native Protestants here towards the Consciences of their Native Papists 7. If a Test is made Penal it ceases to be a Test for men will Swear contrary to their Consciences to avoid the Penalty whereas if no Penalty on Confession they would confess the Truth 8. This will Punish the Innocent together with the Nocent there being many of the poor sort of Papists who Curse the Covetousness of their great Ones who take Bribes Gifts and Pensions to themselves and leave the Inferiors exposed to all the Dangers It is a sufficient Use of a Test therefore if it only Dis-Office the Papist to preserve the Publick Government in Protestant-hands Whether Papists or Protestants ought to be Compell'd to Confession of Faith or any External Form or Ceremonies of Worship against their Conscience by Penalties It seems not 1. Because a Non-Compulsion is not an Approbation Non enim idem est ferre aliquid ferendum probare si quid probandum non est Cic. Fam. Epist L. 9. Ep. 6. Neither is it as much as a Toleration of the Popish Forms of Worship either of Images Idols Crucifixes Crosses Beads Reliques Masses c. But all Acts of Parliament remain in as full force against these Superstitions as before and the Command of Scripture as performable Deut. 12.2 Ye shall utterly destroy all the Places wherein the Nations which ye shall possess served their Gods upon the high Mountains and upon the Hills and under every Green Tree And you shall overthrow their Altars and break their Pillars and burn their Groves with Fire and you shall hew down the Graven Images of their Gods and destroy the Names of them out of that Place But a Non-Compulsion amounts to no more than this That the Penal Acts against Recusancy and Non-Conformity may be laid aside equally as to Papist and Protestant which destroy all Conscience in both 2. Because a Non-Compulsion doth not hinder but advance a Publique free Worship according to such Form and Ceremonies as shall be allowed by the King and Parliament only it frees from Force and takes away the Usurpt Supremacy of the Bishops of Forming Godliness into Gain by restoring it to the Legislative Power of the King and Parliament 3. Recusancy is easier foil'd by giving way than contending and Conformity easier won with Lenity than Rigor Vitia quaedam faciliùs tollit Princeps si patiens eorum est saith Senec. de Clementia Cede repugnanti cedendo Victor abibis Minus placet magis quod suadetur quod dissuadetur placet Plautus Noli Vitia irritare vetando Vidi ego nuper equum contra sua fraena tenacem Ore reluctanti fulminis ire modo Constitit ut primum Laxatas Sensit habenas Fraenaque in Effusa Laxa Jacere juba Ovid. I saw my self an Horse curb'd with a Bit To flie like lightning in despight of it But still he stood as soon as he no Check Felt and the loose Reins cast were on his Neck 4. Chrysostome Hom. 19. in Matth. saith Do the Sheep persecute the Wolf No but the Wolf the Sheep Whence appears that those Protestants who persecute Dissentient Protestants for their Conscience are Wolves in Sheeps Clothing and to be Censur'd far worse than the Papists who do it openly in the Form of a Wolf 5. Thy own Conscience is not Infallible nor Immutable Let him that standeth take heed lest he fall It were a great shame therefore to be over-violent in that from which thy own Conscience or Practice may perhaps eftsoones be Changed 6. Non-Compulsion to discover it self to punishment is the best Right that a Conscience so Innocent as abstains from discovering it self only that it may not thereby offend can crave Tacere liceat nulla Libertas minor à Rege petitur Senec. Oedip. Govetousness the only cause of Compulsion of the Conscience to Confession of Faith or Form of Worship 7. The Final cause of Punishing Consciences which are silent and offend not is only Insatiable Covetousness which can pretend no other cause or colour of taking the Spoils of Innocents Thus Popes and Bishops Rob and Murder the greatest part of Christendome under the name of Hereticks And the Turks the greatest part of the World under the name of Unbelievers and Mahomet after he hath in many places of his Alcoran incited his followers to Fight with Kill and Slay such Unbelievers and take their Goods and Lands from them wherever they can find them he Commandeth them to bring a share of the Spoils to the Prophet meaning himself and saith further Alc. cap. 61. God loveth those who Fight in Rank and File for his Law And what other Doctrine and Practice do Popes and Bishops Preach and Act but the same which shall take the Spoil of the miserable People they get under their Power for no other Crime but their Conscience for this they contend one with another and offer Force to destroy the Conscience it self and Body and Soul with it so they may Seise their Prey of Goods and Lands as Jezabel did of Naboth 1 Kings 21.8 So she wrote Letters in Ahab's name and Sealed them with his Seal and sent the Letters unto the Elders and Nobles that were in his City dwelling with Naboth And she wrote in the Letters saying Proclaim a Fast and set Naboth on high among the People and set two men Sons of Belial before him to bear witness against him saying Thou did'st Blaspheme God and the King And the men of his City even the Elders and the Nobles who were the Inhabitants in his City did as Jezabel had sent unto them They Proclaimed a Fast and set Naboth on high among the People And there came in two men Children of Belial and sate before him and the men of Belial witnessed against him even against Naboth in the presence of the People saying Naboth did Blaspheme God and
and less Damage to himself and Subjects have prevented those Intestine Dissensions by not taking from them that Liberty of Conscience as to Faith and Form of Worship which he was compell'd at last to give them it being certain that the Bordering Turk by the Imprudence of divers of the Emperors in being blinded by the Romish Bishops and their own to violate the Liberty of Conscience of those Frontier Countries and thereby dividing and disuniting them against the Common Enemy he hath thereof taken great advantages to the great danger of the Emperors themselves the Empire and the rest of Christendom And how unfortunate were Episcopal Councils in our own Countrey in this point of Compulsion of the Conscience to their Faith Forms and Ceremonies tending to Episcopal and not the Regal Interest and how they thereby exposed his late Majesty a Valiant Wise and Pious King and his Three Kingdoms to an unnecessary War and the miserable loss ensued thereby is yet in Bleeding Memory What Wars have been in France by Compulsion of Conscience by Force and destroying it by Perfidious Treacheries of Episcopal Councils is likewise sadly known so that in all the Kingdoms of Christendom Bishops by this Compulsion to their Faith Forms and Ceremonies have one time or other raised Civil Wars and Dissensions dangerous or destructive to Princes and People and shared thereby the Spoils of both or what was a greater Prey got by our own made Sale of all the Estates of the Revenues of the Bishopricks fallen Twenty Years before they ever made a Sermon in their Church or Served at their Altar so though the Wars were by themselves occasion'd and kindled and were an universal loss to the People yet they lost nothing and gain'd all That Compulsion against Conscience causeth Wars doth likewise agree the Learned and Pious Doctor More who saith Denial of Liberty of Conscience brings upon Nations and Families Wars Bloodshed Subversion of Families Deposing Stabbing Poisoning of Princes perpetual Hatred and Enmity amongst men and all the Works and Actions of the Kindom of Darkness whereas if it were universally acknowledged that Liberty of Religion were the Right of Mankind all these mischiefs would be prevented the Prince could not pretend any Quarrel against the People nor the People against the Prince or against one another except for Civil Rights which are more plain and intelligible That Compulsion to Faith or Forms of Worship hath had the same Destructive Effects against the Eastern Emperors likewise which it hath had against the Western appears by the Example of Michael Palaeologus Emperor of Greece who fearing an Invasion from the Turks and other Foreigners from the East endeavour'd to strengthen himself from the Pope and by him with the Emperor and other Christian Kings from the West and by his Ambassadors to that end treated with Gregory the Tenth then Pope of Rome to Unite and Conform the Greek Church to the Latine and to acknowledg the Popes Supremacy over the Greeks and Liberty of Appeal from them to the Court of Rome which the Emperor offer'd and the Pope gladly accepted of but the People generally abhor'd these Proceedings of the Emperor and were so Tumultuous that the Emperor was fain to leave off the care of the Foreign Dangers to look to these greater at home and told the People to quiet them that this Alteration was made not out of any good liking he had to it but in respect of the dangerous Estate of things in that juncture of Time it behoved Prudence to admit the less Evil to avoid the greater for if by not granting the Latine Church what they would have they would take advantage of the Wars they had with their other Enemies and fall on them at the same time whereby they would attain more by force from them than would satisfie them by Treaty and not only by War become Lords of their Religion and Ceremonies but of all at once their Wives Children Estates and Lives at the will of the Conqueror therefore he required them to yield to necessity and not to compell him to use more Severe Remedies and not finding them pliable some he Imprison'd some Banish'd some Confiscated some pull'd out their Eyes some Tortur'd some Dismembred on which some outwardly Conformed but not in their hearts but the greater part fled some to Thrace some to Achaia some to Peloponesus and other Countries and the Emperor trusting to Foreign Forces whom he joined and this and his other Cruel Practices in denying his Subjects Liberty of Conscience seeing they were put to Fight only to confirm their own Slavery so discouraged the Greek Army that the Turks overthrew them and their Emperor and won the day by which they got their first Footing in Europe Whereby appears That as Compulsion to the Faith and Ceremonies of the Bishop of Rome and denial of Liberty of Conscience to the first Arrian Christians was the cause of the great Conquests of Mahomet who gave them Toleration in Asia which they could not have of the Roman Emperors so this denial of Liberty of Conscience by this Greek Emperor and his Compulsion of his Subjects to the Ceremonies of the Bishop of Rome was the first opening an Entrance to the Turk into Europe and after the losing of the Grecian Empire to him whence so many Fatal Miseries have ensued to Christendom By the Interruption of the Press I am compell'd to break off this Book abruptly
unto the Elders I gave my Daughter unto this Man to Wife and he hateth her and lo he hath given occasion of speech against her saying I found not thy Daughter a Maid and yet these are the Tokens of my Daughter's Virginity and they shall spread the Cloth before the Elders of the City and the Elders of the City shall take that Man and chastise him and they shall amerce him an hundred Shekels of Silver and give them unto the Father of the Damsel because he hath brought up an evil name on a Virgin in Israel But if this thing be true and the Tokens of Virginity be not found for the Damsel then they shall bring out the Damsel to the door of her Father's House and the men of the City shall stone her with stones that she die because she has wrought folly in Israel to play the Whore in her Father's House So shalt thou put away Evil from amongst you This Custom as many others the Jews learn't of the Heathen Nations and was tolerated amongst them for hardness of their hearts Leo Afer relates amongst the Inhabitants of Fez in Africk the same wicked Custom to be in use and that before the Wedding Feast the Bridegroom ought to deflower the Bride and then they come and shew amongst the Guests a filthy defiled Napkin with great Exultation and a loud Voice Proclaiming the same in as filthy words and behaviour But if this cannot be shewen it spoils the Wedding and the Woman is turn'd away with great disgrace The like they do at Zant where the Wedding Sheets are always kept And amongst the Persians where if the Woman fail to give this Sign they cut off her Ears and turn her home with great disgrace And the like in divers other Heathen Nations which Custom both with Heathen and Jews is 1. very immodest and filthy 2. very cruel and unjust for as Levinus Lemnius and other Physicians and Anatomists hold these Signs are extreamly fallacious and neither shew who is or who is not a Virgin whereby many innocent Persons may be destroyed and many wicked be justified and therefore is no fit Precedent to be followed by Christians Tryal of Jealousie We find likewise the Trial of Jealousie prescribed Numb 5.18 And the Priest shall set the Woman before the Lord and uncover the Woman's head and put the Offering of Memorial into her hands which is the Jealousie-Offering and the Priest shall have in his hand the bitter water that causeth the Curse And the Priest shall charge her by an Oath and say unto the Woman If no man hath lain with thee and if thou hast not gone aside to uncleanness with another instead of thy Husband be thou free from this bitter water that causeth the Curse But if thou hast gone aside to another instead of thy Husband and thou be defiled and some man have lien with thee beside thy Husband Then the Priest shall charge the Woman with an Oath of Cursing and the Priest shall say unto the Woman The Lord make thee a Curse and an Oath amongst the People when the Lord doth make thy Thigh to rot and thy Belly to swell And the Woman shall say Amen Amen And the Priest shall write these Curses in a Book and blot them with the bitter water And shall cause the Woman to drink the bitter water that causeth the Curse In Loango in Africk if any is suspected of Adultery Witchcraft Theft or other Crimes there is a little Tree with a small Root like a White Carrot called Imbunda on accusation the Priest assembles the accused Parties and scrapes a little of the Root into water which makes it as bitter as Gall. One Root will serve for the Tryal of an hundred the Priest beats it together with a Plantan stalk and hits every one after they have drunk with certain words If they can walk by till they make Urine they are free but if they grow dizzy they are knock'd o th' head and dragg'd thence when dead The Matimbas have the same Tryal of Adultery and other Crimes with the same Root made into bitter water the nature whereof is if it be given in too great a Dose it stops the Urine and flies up into the head whereby the Party becomes dizzy which if he be here the Execution something differs from the former and all the People presently fall upon them and cut them in peices with Knives At Morumbay in Africk if any is suspected to be guilty of Adultery or any Crime there is an Idol in a great Basket called Morumbay and they are compelled to come thither when accused and each to kneel down and say Mene quesa Cabumba Marumba that is I come to make trial of my Innocence And if he is guilty he falls down dead and if he is free he is free'd Andrew Battle saith he saw six or seven in his time that were put to this Trial. Amongst the Guineans the Priests have a Drink call'd Enchion Kenow which the Inhabitants beleive hath such a force and virtue from their Fetisso or God that if any Woman suspected of Adultery by her Husband and brought to drink thereof for Trial if she be Guilty the Fetisso will kill her which makes the Woman accused if Guilty rather compound and assent to be Divorced from her Husband then run the hazard of the Fetisso on a Trial by that drink The Americans for the most part if they find not their Wives Virgins or if after they commit Adultery Divorce them wherein they far excel these shameless and devilish Trials of Jews and Ethnicks and the Water-Ordeal and Fire-Ordeal heretofore used by Christians of walking over Red hot Plow-shares bare foot or the newer fashion of putting Women to Self-accusation Canonical Purgation and Compurgation in Episcopal Courts Likewise amongst Christians I say this simple plain proceeding of private Divorce both amongst the Guineans and Americans by the light of Nature far excels all the said Tryals by Jewish Pagan or Popish Priests Lastly It is clear from Christ 's disallowing the Bill of Divorce by the Husband except for Fornication and his allowing it by the Husband when there was Adultery He disallows the Laws of Tryal of Virginity and Tryal of Jealousie as well as he disallowed the Bill of Divorce without lawful cause For the Tryal of Virginity and Jealousie is far worse and shews greater hardness of heart then the Bill of Divorce in regard the Bill of Divorce if the Husband find any uncleanness or dishonesty in his Wife only puts her away and saves both her Honour and Life but the Tryal of Virginity and Jealousie permits the man first to lie with her and perhaps to get her with Child and then to stone her or with bitter water to poison her and her Child together wherein the Turk is not so bad as the Jew For though he buy his Wife if after he finds her not as she should be he will Divorce her and though he lose
marriage yet could not they avoid being spotted by slanderous Tongues to be like the Heathen Gods lovers of Women whereas fame it self dared not belye these Heroick Ladies who defended their Honour with their Blood But to draw to an end of this Section There appear amongst the nations many good many indifferent and many most wicked Laws and Customs concerning Marriage the height of the Examples and the Authority both in good and bad being only humane The same can be neither obligatory nor satisfactory to the Conscience neither ought marriage to be judged by them Divorce by mutual assent It was by the Twelve Tables allowed That by Mutual consent the parties might Divorce themselves one from another Quia unumquodque dissolvitur eodem modo quo conflâ—tum est as may be collected from Cicero Philip. 2 l. pern ad leg Jul. de Adult li. 2. 7. de divorcio ex Apul. Ambros Epist 65. Notwithstanding which there was no Divorce followed in Rome for the space of 520 years There have been examples of the practice of this amongst Christians and Christ's words prohibiting putting away which implies force seems not to include a free or voluntary separation Of examples of this amongst Christians an express form appears in Marculfus his Formula lib. 2. cap. 30. Dum inter illum illam non charitas regnat sed discordia placuit c Seeing between him and her the Charity according to God doth not reign but Discord so that they cannot live peacably together it is agreed by the consent of both that they separate from one another and accordingly they have done as others Leg. Rom. cap. 19. and Novel Instit 117. These Canons have been made to change and likewise other Imperial Laws Divorce free for Women a well as Men. Of Women departing from their Husbands 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is the word for it on the Woman's part Sen. de Benef. l. 3. c. 16. Numquid jam ulla repudio erubescit And Nobiles foeminae non consulum numeroâ—sed maritorum annos suos computant They departed and married again every year Apud Romanos Graecos mulier quam vir alteri potest dicere ut res suas sibi habeat quin nomina rei illius propria jure Attico prodita erant ut si vir discederet ab uxore hoc diceretur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 si mulier à viro 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Jos Scà liger Amongst the Romans and Greeks both the Woman and the Man might Divorce one another And by the Athenian Law they had proper Terms for both as if the Man left his Wife this was called a Dismission Dismission and Desertion if the Woman left her Husband this was called a Desertion So by the case put by Christ of a Woman it appears then that Women were Divorced as well as Men. The East Indians if they are but Jealous of their Wives will kill them and bring three or four witnesses to Swear That strange Men entred into their Houses by night or at unaccustomed times who had their pleasure of their Wives or in another sort as they will devise it whereby the Husband is streight discharged of the Crime of killing his Wife by the Laws both of Portugal and Spain and there are every year many Women without number dispatched by their Husbands and none think it strange nor make wonder at it because of the Custom and the Women are never the more frighted from their Adulteries but will say They can die no better death then by such a Law Linschot And may presently marry another Wife The Wives likewise frequently poison their Husbands which as some say was the original of their custom not to survive their dead Husbands but to burn them And the causes of Jealâ—uâ—e can by neither be published to the Magistrate with safety or hâ—nour either of Wife or Husband Were it not therefore far better for the Innocent party or both by assent to separate themselves privately and marry again then so live in danger of their lives one of another and more agreeable to the Law of God and Nature and the ends of marriage then for them if the Wife offends the Husband to have power to kill her while alive or if not offend to kill her by burning with him after dead or the Woman be tempted to prevent both by poisoning her Husband were it not better to be put away privately as Joseph did his Wife then the fault publish'd and Divorces would not be so frequent if left free to the parties for who would marry again a Man or Woman who had Divorced themselves from their first marriage without cause Augustus Caesar following the vicious policy of those times to strengthen himself by marriage of Women repudiates his Wife Scribonia the same day she was deliver'd of Julia and married Livia being great with Child by Tiberius Nero her Husband still living who was deliver'd of Drusus three Months after Dio. Tiberius by assent of Augustus repudiateth the Daughter of Agrippa being then with Child and marrieth Julia the Daughter of Augustus Dioclesian the Emperour married six Wives in a short space and repudiated them all great with Child Oros And having associated to him because of many Travels in the Empire Maximianus they both meet at Milan to create new Caesars to whom they may commit their Forces where they chose Constantius Chlorus and make him Governour of Britain and Galerius whom they make Caesar likewise to defend Eastern Europe These new Caesars they compel to repudiate their former Wives and Galerius married Valeria Daughter to Dioclesian And Constantius repudiated his Wife Helena by whom he had Costantine after call'd the Great and married Theodora Daughter-in-law to Maximian by whom he had after six Children Dioclesian assumeth Divine Honour and he and Maximian triumph yet they after resign the Empire and retire themselves to Galerius and Constantius after Constantius createth his Son Constantine Caesar and dyeth Against him was set up Maxentius Son to Maximian and Maximian giveth his Daughter Fausta to Constantine Herod Antipas repudiateth his Wife Areta who was Daughter to the King of Arabia and married Herodias Wife to his Brother Philip and Daughter to his Brother Aristobulus Joseph Anno Christi 1028. Constantine the Emperor being sick the States put Romanus Argyrus to his choice either to repudiate his Wife and marry the Emperor's Daughter or to lose his Eyes his Wife to save him from danger entereth into a Nunnery Romanus Argyrus is made Emperor and marrieth Zoe the Emperor's Daughter and banisheth Theodora her Sister Zon. Zoe falleth in love with Michael Brother to one of the cheif Eunuchs they strangle Romanus in a Bath he marrieth Zoe and was much troubled with the Dropsie and Falling-sickness Michael neglecteth the Emperess and refraineth her Bed shaveth her and banisheth her The people inforce him to recal her and put out his Eyes Cedr Zoe marrieth Constantius Monomachus who keepeth a Concubine
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
and no Certificate of Bishops hath power to take that right from them 7. Here the wantonness of Widows is forbidden who are for new Husbands as soon as the old is put in his Grave whereby who are Fathers of their Children is made uncertain 8. Here is no false Fathering of Children on those who are within four Seas 9. Here is no punishing Men twice for one offence once by the Temporal Court and then by the Spiritual Court or contrary punishments by contrary Courts one by the Contentious Court and another by the Penitential Court 10. Here is no Auricular Confession of their Wives or Daughters by Priests in Temples or Chambers and defiling thereby of their Families 11. Here is no punishing of Women for bringing forth Children nor the Murders of so many Infants caused thereby as by the Papist Laws is continually done Yet I conclude though the Law of the Turk is far better than that of the Pope and shall rise in Judgment against such as plant his Canons in their Courts in defiance of the Law of God and Nature I think neither a fit Rule to judge Marriage Legitimation or Succession by CHAP. V. Marriage Filiation Aliment and Succession not to be judged by Ecclesiastical Laws THE Question is Whether Marriage Legitimation and Succession ought to be judged by Ecclesiastical Laws No English Lawyer can mention my Lord Coke without great honour but how he came so biass'd as to endeavour to set up Papal and Episcopal Laws under the name of Regal appears not Object 1 It is objected by Coke lib. 5.1 part 40. in Cawdryes Case That the Kingdom of England is an absolute Monarchy and if the King cannot Authorize by his Commission or Writ Ecclesiastical Judges to determin and judg those great and important Causes of Matrimony Divorce and general Bastardy by Certificate of the Bishop who is the Ecclesiastical Witness and Judg both of Fact and Law and by the Canon Laws which by use and custom are now our Ecclesiastical Laws Then he is disabled to be supreme Governour of this Realm in all Spiritual things or Causes as well as Temporal according to the Oath of Supremacy due to him And that he could not then cause Justice to be administred to his Subjects in these so great and important causes of Matrimony Divorce and general Bastardy on which depends the strength of mens Descents and Inheritances This I conceive though not in the same words yet in sence and substance to be the weight of my Lord Coke's Argument whereby he would make use of Marriage as one means amongst his many other to set up an Ecclesiastical Law and Judg over the Temporal Freeholds and Inheritances and other Birth-rights of the Subjects To which is answer'd First As to the words Absolute and Supream I suppose he intended no such absolute Monarchy or Supremacy as is not under the Law of God though it be not so express'd in the form of the Oath of Supremacy For though Regum timendorum in proprios greges Ecclesiastical Laws not needful to the King's Supremacy but hurtful Reges in ipsos imperium est Jovis then I think he doth not intend it to be above the Law of the Land seeing the King himself by his Oath is pleased to oblige himself to his People to govern according to that Law where it is not contrary to the Law of God Then as to the pretended want of Power of doing Justice concerning causes of Free-hold and Inheritance depending on marriage except by Ecclesiastical Laws and Judges that is very strange for how was Justice done in the times of Primitive Christianity for many Hundred Years after Christ when neither Bishops or any other Ecclesiastical Judges ever pretended Jurisdiction todetermin Temporal Right or Propriety but left the same to be judged by the Imperial Laws How was Justice done in the time of Henry the Second when the Jurisdiction of all Matrimonial causes remained in the Temporal Courts Richard the First his Son being the first as Matthew Paris writes whom the Clergy got by his publick Edict to give the Jurisdiction of Power and Gifts by reason of Marriage and of all Matrimonial causes to the Bishops Courts and the same Richard likewise gave them Jurisdiction of all breach of Faith Promises and Oaths whereby if much of the Power so rashly granted had not been by him so speedily resumed they had hookt to themselves the whole Jurisdiction from the King's Courts of all Contracts and Conveyances Bonds and Obligations as well as Marriages concerning Temporal Goods and Inheritances And why cannot general as well as special Bastardy be tryed at Common Law And how likewise are all Rights depending on all Marriages made during the late Civil Wars by pretence of any Ordinance of Parliament made by 12. Car. 2. cap. 33. to be tryed by a Jury and the Common Law and not by Certificate of the Bishop or any Ecclesiastical Judg to the advancement and not prejudice of Justice and a far greater expedition and advantage to the same would it be if by the like Act the Jurisdiction of all Marriages and Legitimations as it was in the time of Henry the Second were again restored to the Common-Law-Courts So likewise anciently Bastardy alledged in an Action of Trespass was triable by Jury but now usurped by Bishops as well in personal as real Actions 4. Edw. 4.35 Object 2 Coke lib. 5.1 part in the same case of Cawdry it is further alledged Circumspectè agatis gives no Jurisdiction of Marriage to Bishops That the Statutes of Circumspectè agatis made 13. Eliz. 1. of Articuli Cleri made 9. E. 2. Anno Domini 1315. of 15. E. 3. Cap. 6. of 31. E. 3. Cap. 11. give Jurisdiction of marriage to Bishops To which is answer'd That in the Statute of Circumspectè agatis there is not a word mention'd of marriage but only by it Jurisdiction is given to the Bishops of Fornication and Adultery which is not Marriage but rather Anti-marriage for Marriage is an Ordinance of God Fornication and Adultery are Ordinances of the Devil and whereas before the Jurisdiction of Fornication and Adultery as acknowledged by Coke lib. 5.1 part 488. was in Leets under the name of Letherwit or more properly Lecherwit yet had Leets never Jurisdiction of Marriage or Divorce neither consequently could Bishops have it from them As for Articuli Cleri and the other Statutes there is not a word in them concerning Marriage nor so much as of Fornication and Adultery the Jurisdiction therefore pretended was never given by any Statute Linwood likewise expounds the words of the Statute of Circumspectè agatis which gives Bishops Jurisdiction of all deadly Sins as Fornication and Adultery and the like Non intelligas de omni peccato mortali sed de tali cujus punitio spectat merè ad forum Ecclesiasticum nam si de ratione cujuslibet peccati mortalis cognosceret Ecclesia sic periret temporalis gladii Jurisdictio
and Earth and all the good Angels his faithful Ministers to assist me in the defence of the faithful obedience to the Law of the Gospel and of his Church Assist me O Christ assist me O Jesu assist me O Holy Spirit Ed. Kelly It appeareth written on a White Crucifix My Grace is greater then the Commandment for my Grace is such that Mad-men shall attain Blessedness Verily I say unto you If I command a man to kill his Brother and he doth it not he is the Child of Sin and Death c. Dr. d ee Hereupon we were in great amazement and greif of mind that so impure a Doctrine should proceed from such as I from the beginning and hitherto had judged and undoubtedly esteemed good Angels and had unto Edward Kelly offer'd my Soul as a pawn to indemnifie Edward Kellys crediting of them as the good and faithful Ministers of Almighty God But now my heart was sore afflicted on many causes and Mr. Edward Kelly had as he now thought he had a just cause of leaving dealing with them any more and his Prayer to God had been as he said of a long time that he might have power to do it Afterward I made some Declaration to our Wives of this our great greif by reason of the Command laid upon us to use Matrimonial Acts between us four in common which thing was strange to the Women and they hoped of some more comfortable issue of the matter and so for that time I left off After Edward Kelly had been four hours in seeing new Apparitions giving him admonition to receive the same Doctrine with threatning of Judgment upon us if we should not and many other things told me We departed each to Bed where I found my Wife awake attending to hear some new matter of me And we being alone I then told her and said Jane I see there is no other remedy but as hath been said of our cross Matching so it must needs be done Thereupon she fell a weeping and trembling for a quarter of an hour and I pacified her as well as I could and so in the fear of God and beleiving of his Admonishments did persuade her that she shewed her self prettily resolved to be content for God's sake and his secret purposes to obey the Heavenly admonishment But Edward Kelly who had divers other Apparitions made to him in his own Chamber remained notwithstanding in his purpose of forsaking and utterly discrediting these Creatures A Spirit calling himself Raphael the Arch-Angel there speaketh to them who were not satisfied with the Testimony of Madimi Raphael Dear is thy Wife more dear is Wisdom and most dear ought I to be unto thee Thou being Elected tremblest and by doubting sinnest all these things are lawful unto you I admonish you as the Children of God to consider your Vocation and the love of God towards you and not to prefer your Wisdom before the Wisdom of the Highest whose Mercy is so great towards you Consider that if he find you obstinate the Plâ—gues of hainous Sinners and the contemners of the gifts of God shall fall upon you Therefore shew your selves lovers of him that hath led you and cover'd you with a mighty Sheild or shortly look for the reward of those who contemn the Wisdom and Majesty of the Highest I Raphael counsel you to make a Covenant with the Highest and to esteem his Wing more then your lives After some little discouse and conference there they went to Bed April 20th 1587. April 21th 1587. John Dee Edward Kelly Jane d ee and Jane Kelly promise to God though above their Carnal reason in Abraham-like faith and obedience to subscribe a Covenant to him to have one another in common April 22th 1587. Edward Kelly having on further consideration a new reluctancy concerning this promiscuous Matrimony makes a Declaration in writing that he would from that forward no farther meddle therein April 24th There are further Prayers made to God desiring a further manifestation of his pleasure concerning this new Doctrine so contrary to the Laws formerly promulgated by him A great flame of Fire appeareth in the principal stone standing on the Table before Edward Kelly and behold one suddenly seemeth to come into the South Window of the Chappel right against Edward Kelly but before that the stone was heaved up an handful high and set down again well which thing Edward Kelly did think signified some strange matter toward Then after the man who came in at the Window seem'd to have his nether parts in a Cloud and with spread abroad Arms to come towards Edward Kelly at which sight he shrunk back somewhat and then that Creature took up between both his hands the principal stone and frame of Gold and mounted up away as he came Edward Kelly catch'd at it but could not touch it at which thing so taken and carried away and at the sight thereof Edward Kelly was in great fear and trembling but Dr. Dee was glad and well pleased A Fire next appears in the lesser stone left behind on the Table and a man in the fire with flaxen hair hanging down on him being naked to the Paps with spots of blood upon him and in the shape of Christ Christ If I had intended to have overthrown you or brought you to confusion or suffered you to be led into temptation beyond your strength and power then had the Seas long since swallowed you yea there had not a Soul lived amongst you But the Law and tidings of Gladness in Mankind are both grounded in me I am the beginning and the end behold I was even my self the figure of Misery and Death for your Sins why therefore disdain you to be figured after me And as I have made you the figure of two People to come so have I likewise sanctified you in an holy Ordinance giving you the first-fruits of the time to come contrary to my self I teach you nothing for this Commandment is not to be given to Mortal men but is given to you to manifest your Faith I I am the first and the last and I will be Shepherd overall that the Kingdom of my Father may come and that my Spirit may be on all flesh where there shall be no Law nor need of light for I my self will be their light for ever I am Holy and Holiness it self and out of me cometh no unclean thing and if there be any of you that seeketh a Miracle at my hands and beleiveth in my words let him or her present themselves here next Monday and he shall perceive that I was the Judg of Abiram and the God of Abraham May 3d. being Sunday 1587. Stylo Novo A Covenant with God is drawn into form that according to his new Commandment they will by Abraham-like-faith and obedience use Matrimonial Acts with one another in common and was subscribed by John Dee Edward Kelly Jane Dee and Joan Kelly at Trebon-Castle The Covenant being thus formed written
the Doctrine of Christ for ab initio non fuit sic that a verbal Contract of words should pretend above the real Contract of carnal knowledg And the Lady Grey though it doth not appear but that she was otherwise a very vertuous Lady yet if she knew the truth of what is before mention'd concerning the Lady Lucy she cannot be excused in taking that Husband to her self who had already given the first pledg and made the cheif and real Contract of Marriage with another Woman and far happier might she have been if she had ascended a meaner but more lawful Bed for the Earl of Warwick at his return home from France finding by this Marriage his Embâ—ssage frustrated the Lady Bona deluded the French King abused and himself made a stale and the disgraceful Instrument of all this deeply resented and waiting his time raised an Army and by surprize took the King Prisoner and presently conveyed him to Middleton-Castle in York-shire to remain there in safe custody with the Bishop of York where if he had not by fair words and Money gotten his Keepers to permit him the recreation of Hunting and thereby means to escape he had lain at Mercy And after he was escaped and had gather'd sufficient Forces whereby he made the Earl of Warwick fly to the French King where he was honourably received yet the Earl returned again so Potent with the French joined with the great party he had in England that the King was fain to fly to Burgundy and the new advanced Queen to take Sanctuary at Westminster And though her Husband again returned and by a hazardous Battel wherein Warwick himself and many other Lords were slain he recover'd again his Kingdom yet he had so little quiet and less security that what injoyment she obtained of him was always in fear and danger of the Field and other Competitors of the Bed after a man guilty so more unhappy then her self and when she lost him by death she lived to see those Remains of him he had left her two hopeful Sons most cruelly Murther'd and for the conclusion of all her self confined to the Monastery of Bermondsie in Southwark and all her Goods confiscate by her own Son in Law Henry the Seventh yet no just cause appearing against her In which Monastery in great pensiveness within few Years she died There is a Case reported by Sir Jo. Davies and likewise mention'd by the learned Dr. Godolphin in his Repertorium Canonicum 488. to have happened in Ireland which was this G. B. Esq had Issue C. B. on the Body of J.D. whom he had never carried to Priest or Temple but his Son C. B. Desertion of a Woman after a Child for a richer in Ireland was begot by natural marriage without any Pontifical Ceremony About Sixteen Years after G. B. having found a Lady who was richer and of a greater Estate and Reputation then his first Woman by whom he had his eldest Son C. B. Marries her with assent of her Friends by whom he had Issue E. B. and died after the death of G. B. the said C. B. his reputed Son and his Mother being both left alive continued silent by the space of nine Years 'till they happened to have one of their Kindred Bishop of K. by whom they then were encouraged by new hope to obtain their Right who it seems not experienced in the Forms of Judicial Proceedings without any Libel exhibited and not Convocatis Convocandis proceeded to take the Depositions of many Witnesses to prove that the said G. B. Twenty-nine Years before had lawfully married and took to Wife the said J. D. Mother of the said C. B. And the said C. B. was the Legitimate and lawful Son and Heir of the said G. B. And these Depositions so taken the said Bishop caused to be ingrossed and reduced into the Form of a solemn Act and having put his Signiture and Seal to that Instrument delivered the same to C. B. who publish'd it and thereupon alledged himself Son and Heir to the said G. B. Hereupon an information is put into the Castle-Chamber in Ireland against the Bishop suggesting a Conspiracy to Legitimate C. B. Son and illegitimate E. B. the Daughter of the said G. B. And for this Practice the said Bishop and others were Censured This Case and the foremention'd Case of Kenne are both contrary one to another and both contrary to the Law of God In Kennes Case the wrong Heir is Legitimated by the nullifying of a lawful Marriage consummate by carnal knowledg and birth of the right Heir by Sentence of the Spiritual Jurisdiction and there the Common-Law will not releive the right Such Faith they say they are bound to give to the Spiritual Sentence whether right or wrong whether with cause or without cause until the Spiritual Judg revoke his own Sentence himself but here where a right Heir is made Legitimate by Sentence Declaratory of a lawful Marriage between the Father and Mother of the right Heir in the Castle-Chamber the Common-Law will Legitimate the wrong Heir and will give no faith to the Sentence of the Spiritual Judg if that they think it wrong so it seems the Common-Law in Westminster-Hall and the Common-Law in the Castle-Chamber are very contrary one to another as to the point of giving faith concerning Marriage and Legitimation to Spiritual Jurisdiction yet both contrary to right and destructive to the lawful Heir according to the Law of God and both give faith to Common and Canon-Law above the Supreme Law and Legislator Amongst the Greeks the manner of the Contract of Marriage was The Parties going to the Temple before the Priest the Man swore in the presence of Witnesses Se sponsam post concubitum invitum non deserturum That he would not after he should have lain with the Woman forsake her without her consent Arch. Att. 156. The like form of words in the Marriage-Contracts was used by the ancient Romans who shall rise up in Judgment against the Popes who unless Parties mumble the aforemention'd Nonsense of Verba de praesenti give Licence for Money to deceive and desert a Thousand though they have never so many Children by them and to make all Women common and to their own Priests to give example being interdicted all verbal Marriage that they may have the more liberty to abuse the real and to take and leave all they please and as oft as they please The like do the Guiny Priests who converse with the Devil and their form of Contract of Marriage is no doubt according as he will have it For the Woman is there sworn to the Man that she will not desert but the man swears not to her nor will oblige himself by any verbal Contract but is to be left as free as any Popish Priest whatsoever Desertion after deflouring hath caused Seditions and Civil Wars This deflouring and desertion was a while in fashion amongst the Roman Nobles and Patricians who
and those Laws which follow them they will on Divorce under the name of Alimony give the Woman more then the Interest of her Portion amounts to which incourages all Women to seek Divorces whereas the form of Divorce amongst the Romans was Res tuas tibi habeto and she was not to have more then she brought with her and the same is the Law of the Jews and all other Nations except such as live under Popish Ecclesiastical Laws And the injustice of our Ecclesiastical Laws to the contrary is not one of the least causes why Divorce and Separations are of late grown so frequent because Women know they shall gain by the Divorce and rob their Husbands of more then ever they brought them Of the Law of Divorcing after Procreation of a Child for precontract or pre copulation without pre procreation Of the Law prohibiting liberty of private Marriage without publick Witnesses Of the Law giving the Jurisdiction of the secret causes of Divorce between Parents and secret uncleanness of Children in their Parents Houses to publick Tribunals Of the Law compelling persons married though mortal Enemies to Co-habitation Of the Law of Divorce à Mensa Thoro. Of the Canon compelling the parties on Divorce for Adultery to give Bonds and Sureties not to marry again during each others life Of the custom of Protestants marrying with Papists Edward the Fourth was as is alledged first verbally contracted to Eleanor Daughter to john Talbot Earl of Shrewsbury married after to Sir Thomas Butler Baron of Sudley after this verbal contract he married Elizabeth the Widow of Sir John Gray she lived his Wife Eighteen Years and Eleven Months and he had issue by her Three Sons and Seven Daughters Elizabeth his eldest Daughter was first promised in marriage to Charles Dauphin of France but married after to King Henry the Seventh Edward the Fourth being dead leaving his two Sons young in the custody of his Brother Richard the Third they were after murdered by him to make his own way to the Crown but first in preparation thereto Dr. Shaw in a Sermon by him Preached at Paul's-Cross took for his Text Spuria vitulamina non agent altas radices And to make short work they were after by Act of Parliament Proclaimed Bastards and not inheritable to the Crown on no other Allegation made but the pre-contracts before mention'd with Eleanor Butler as is recorded in the Parliament Roll. Husband divorces the Wife for cause of precopulation committed by himself Buchanan rerum Scoticarum lib. 11.652 relates That Earl Bothwel aspiring to obtain the marriage of Mary Queen of Scots compelled his Wife to accuse him of pre-copulation with another Woman before he married his Wife Gordonia Bothuelii uxor cogitur in duplici foro litem de Divortio intendere apud judices Regios accusat uxor maritum adulterii quae una justa apud eos erat divortii causa apud judices Papanos lege vetitos tamen ab Archiepiscopo fani Andreae ad hanc litem cognoscendam litem dare accusatur idem ante Matrimonium cùm propinqua uxoris stupri consuetudinem habuisse nulla in Divortio faciendo nec in testibus nec in judicibus fit mora intra enim decimum diem lis suscepta disceptata dijudicata est After he saith one thing thought necessary was ut consuetae servarentur Ceremoniae ut videlicet publice in conventu civium tribus diebus Dominicis nuptiae futurae inter Jacobum Heburnum Mariam Stuartam denuntiarentur ut si quis quid vitii ant impedimenti sciret quo minus legitimè coirent rem ad Ecclesiam deferrent And after he saith Cùm de nuptiis in Ecclesia denunciandis ageretur lector cujus id munus erat constanter recusare collecti Diaconi seniores cùm reluctari non auderent jubent Ecclesiastem nuptias futuras de more edicere is quidem hactenus paruit ut se vitium quidem scire profiteretur ac paratum seu Reginae seu Bothuelio cum vellent judicare is cum in arcem accersitus venisset Regina eum ad Bothuelium remisit qui quanquam nec blanditiis nec minis Ecclesiastem de proposito deduceret nec rem disputationi committere auderet tamen nuptias apparat unus Orcadum Episcopus est inventus qui gratiam aulicam veritati praeferret caeteris reclamantibus causasque proferentibus cur Legitimae non essent nuptiae cum eo qui duas uxores ad huc vivas haberet tertiam ipse suum nuper fassus adulterium demisisset ita indignantibus omnibus bonis vulgo etiam execrante propinquis per literas improbantibus inchoatus publicis Ceremoniis simulatis etiam factas detestantibus tamen Matrimonium celebratur Which fore-mention'd pre-contract alledged against Edward the Fourth was no more just cause to Illegitimate his Children then it was to Murder them nor was his pre-copulation with another Woman confess'd by Earl Bothwel any more just cause to Divorce his Wife then it was to aspire to the Kingdom 32 H. 8. cap. 38. takes notice of the great mischiefs insuing by dissolving by pre-contract Marriage consummate by bodily knowledge and fruit of Children or Child which Statute follows in these words WHereas heretofore the usurped power of the Bishop of Rome 32 H. 8. cap. 38. Of precontract hath always entangled and troubled the meér Iurisdiction and regal power of this Realm of England and also unquieted much the Subjects of the same by his usurped power in them as by making that unlawful which by God's Word is Lawful both in Marriage and other things as hereafter shall appear more at length and till now of late in our Soveraign Lord's time which is otherwise by learning taught than his predecessors in time past long time have beén hath so continued the same whereof yet some sparks be left which hereafter might kindle a greater fire and so remaining his power not to seem utterly extinct Therefore it is thought most convenient to the King's Highness his Lords Spiritual and Temporal with the Commons of this Realm assembled in this present Parliament that two things especially for this time be with diligence provided for whereby many inconvemences have ensued and many more mought ensue and follow As where heretofore divers and many Persons after long continuance together in Matrimony without any allegation of either of the parties or any other at their Marriage why the same Matrimony should not be good just and lawful and after the same Matrimony Solemuized and Consummate by carnal knowledge and also sometimes fruit of Children ensued of the same Marriage upon pretence of former Contract made and not Consummate by carnal Copulation for proof whereof two Witnesses by that Law were only required beén divorced and separate contrary to God's Law and so the true Matrimony both so Solemnized in the face of the Church and Consummate with bodily knowledge and confirmed also with fruit of Children had betweén
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 of proceeding in the Law of England yea though Behemoth himself doth labour to procure the same Of the Law making all prohibited Marriages Null Marriage without Witnesses or Ceremony not void though prohibited The Law of the Pope and Council of Trent not only prohibited all Marriages except contracted before two Witnesses and a Priest in a Temple but makes them null and void The Law of England prohibits them but doth not make them null and void though the common practice of the Bishop's Court and Certificates contrary to Law follows the Canon of the Council of Trent and though it was made after all Forein Jurisdiction was by Act of Parliament abolished But to speak now according to the Law of God and of the Land I shall first cite the opinion of Grotius and other Authors upon it As to the Law of God Grot. de jur Bell. Pac. pag. 142. saith Si lex humana conjugia inter certas personas contrahi prohibeat non ideo sequetur invitum fore Matrimonium si re ipsa contrahatur sunt enim diversa quid prohibere quid irritum facere nam prohibitio exerceri potest per poenam vel expressam vel arbitrariam hoc genus leges imperfectas vocat Ulpianus quae fieri quid vetant sed facium non rescindunt And after he saith Indecentia est major in Actu quà m effectu saepe etiam incommoda quae rescissionem sequuntur majora quà m ipsa indecentia aut incommodum Actus ipsius If any human Law prohibit Marriage between certain persons it doth not therefore follow that it makes such Marriage void if it be actually contracted for to prohibit a thing and make a thing void are two different things for a prohibition may exercise its power sufficiently by a penalty either Express or Arbitrary and this kind Vlpian calls imperfect Laws which forbid a thing to be done but if done rescind it not After he saith For often times the indecency is greater in the act then the effect and often times the mischiefs are greater which follow a rescission then the act it self With this agrees the expression of Thamar to her Brother Ammon attempting to force her Thamar and Ammon 2 Sam. 13.12 And she answer'd him nay Brother do not force me for no such thing ought to be done in Israel do not thou this folly And I whither shall I cause my shame to go And as for thee thou shalt be as one of the Fools in Israel Now therefore I pray thee speak unto the King for he will not withhold me from thee Howbeit he would not hearken to her voice but being stronger then she forced her and lay with her Then Ammon hated her exceedingly so that the hate wherewith he hated her was greater then the love wherewith he had loved her And Ammon said arise begone And she said There is no cause This evil in sending me away is greater then the other that thou didst unto me but he would not hearken unto her For the same reason King Alcinous adviseth Medea That Medea should be returned to her Father if she were not defloured but if she were the reason will be otherwise as is remembred by Apolonius in his Argonaut So likewise the Sabin Virgins being taken by the Souldiers of Romulus Sabin Virgins their Parents raising Arms again to resoue them home when the two Hostile Armies in Battalia drew neer one another the Romans sent their Foeminine Prizes to mediate a Peace who using this argument to their friends and kindred as they stood ready to fight That it would be a greater injury to their own honour and their friends to take them from their Ravishers who were now their Husbands then their first Rape and thereby obtained it Luther to this purpose relates a story of a young Man he knew at Erfort Luther who tempting his Mother's Maid the Maid acquainted his Mother with it she with a pretence to School her Son into a better Lesson layes her self in her Maid's Bed her Son gets her with Child of a Daughter which being concealed and the Daughter sent abroad to Nurse and School and after being grown up and brought home the young Man knowing not of it married her so that she became thereby his Daughter Sister and Wife After the same being discovered the University was consulted about it who thereupon advised the Mother to repent of her wickedness but seeing the married Couple were ignorant thereof and knew nothing they advised to avoid greater offence that they should continue together Quod fieri non debet factum valet Here was a Marriage prohibited by the Law of God and Man yet when made it appears the opinion of the University was it ought not to be rescinded Law of England doth not null a marriage not according to the Common-Prayer-Book though it prohibits it I am next to speak concerning the Law of the Land which though it prohibit yet doth not null a Marriage not made according to the form of the Common-Prayer-Book The first Reason is It doth not null the Marriage of a Papist which is not according to the Book of Common-Prayer à fortiori therefore
just cause by Divorce one of another without publishing the cause and if there be no cause amongst the Children by taking away as much of their Portions as the offence deserves and giving the same to the innocent Children and by good instruction reproofs and virtuous example of the Parents which will prevent more offences in Children then Tribunals can ever reform though they have Witnesses So Lycurgus by commanding in his Laws That all Captains of Armies and Priests of Temples should marry and that Husbands themselves should come to their Wives Furtim verecunde and the Children be modestly Educated left Sparta so clean from unchast demeanour that when Geradas an old Spartan was asked by a stranger What was the Punishment of Adultery in Sparta for he could find no Law made by Lycurgus concerning that Crime Oh Friend says he There is no Adulterer with us When he reply'd But what if there should be any Geradas told him He should pay a Bull so big as should be able to stretch his Neck over Taygetus and Drink of Eurotas when the other laughing said There is not such a Bull to be found Neither quoth Geradas Is an Adulterer to be found in Sparta where Riches Luxury and wantoness of Apparel are counted a disgrace and Modesty and Obedience to Magistrates an Honour Where the Seminaries of Vices are not permitted how can Vices grow First Therefore as to Man and Wife as Bodin lib. 1. cap. 3. says Nothing seems more pernicious then to compel the cause of Divorce to be shewn before a Judg for in so doing the honour of one or both Parties is hazarded which would not be if neither of them were compel'd to prove the same before a Judg as Plutarch in Alcib relates That when the Wife of Alcibiades went to complain of him before the Judg he came after her into the Court and took her by force and carried her away home on his Shoulders Ne Secreta Fori Panderet whereat the Judg only smiled The Hebrews likewise used to make their Bills of Divorce without a cause neither is it prohibited by Christ if there were a true cause to put her away by private Bill without publick Tribunal or Judg for such were all the Bills of Moses and no publick Judg required to judg of the Cause but only the Conscience of the Party And Joseph having a just cause of suspicion against Mary his Wife did not bring her before a Judg and is commended for so doing to be a just man as Matth. 1.19 is said Then Joseph her Husband being a just man and not willing to make her a publick Example was minded to put her away privily So doth Plutarch in Aemil. relate of Paulus Aemilius Who according to the Custom of the Romans shewed no cause of putting away his Wife but affirmed her very honest wife and nobly descended and by whom he had also many fair Children but when he was press'd by her Friends to shew the cause why he would then Divorce he shewed them his Shoo which was very handsomely and well made and yet says he None of you know but my self feeleth where it wrings my Foot By which doing the Woman is not dishonour'd but may marry with another suitable to her quality and the same liberty had the Wives to divorce themselves from their Husbands without proving or shewing any cause before a publick Judg. This likewise preserves the repute of the Children who though innocent will likewise perpetually bear the reproach if the dishonour either of their Father or Mother be publish'd before a Judg. And further as to drawing the secret offences of uncleanness of Children especially of Daughters before a Judg who are under the Family Jurisdiction either of Father or Mother or Husband the same is an undoing to those who offend for though they never so much repent and amend yet there can be no repairing of their shame or name when publish'd and the innocent who are the Father and Mother and Husband and the other Children the dishonour can never be taken again from them Seneca therefore who in all other things was a great honourer of the virtue of Augustus yet blames as a great oversight in that wise Emperour that he punished the Adulteries of his Daughter Julia publickly by Banishment Quae potius saith he Principi tacenda quà m vindicanda sunt Secondly It makes every petty difference between Man and Wife irreconcilable and heightens Contention from a small spark by blowing it abroad to so great a flame that it is at last unquenchable for the publishing of many things neither criminous nor sinful may affect some modest Natures with as deep a sence of disgrace as those that are false as much as those that are true and when once published cannot by repentance be again revoked but may cause such hatred between the Parties as will never again admit them to live together Thirdly Where offences are not published they oft times may with honour be forgiven and the Parties reconciled which if publish'd cannot So Antonius Pius forgave the Adultery of Faustina and would not draw it to publick Judgment to prevent his own shame And Ael Spart writes That the Emperour Adrian did the like to his Empress who though he suspected yet put not away but only removed such Courtiers from his Court as he suspected Of the Law compelling Persons Married though mortal Enemies to Cohabitation Another great mischeif is in the Ecclesiastical Laws they compel Cohabitation of Men and Women when they are mortal Enemies and take off Exequenda Matrimonialia Officia and due benevolence when one insidiates for the life of the other of which take Bodin further Fol. 19. but says he If the Cause seem not sufficient to the Judg which he intends the Cause alledged of Divorce to an Ecclesiastical Judg or be not well proved it is therefore meet to inforce the Parties to live together in that Society which is of all other the straightest Test having always the one and the other the object of their grief still before their Eyes Truly says he I am not of that opinion for seeing themselves brought into extream servitude fear and perpetual discord hereof ensue Adulteries and oftentimes Murthers and Poisonings for the most part to men unknown And for this cause free Divorce to both Parties and non-Cohabitation was permitted by the Roman Laws not out of wantonness but out of the greatest necessity and Piety for preservation of those ends for which Marriage was instituted with the least danger and dishonour that might be to either Party wherein they must of necessity suffer if either free Divorce be tolerated or the examination of the causes of the same drawn to publick Tribunals One cause Cato the Censor complains of for which the freedom of Divorce and non-Cohabitation ought to be permitted was because he used to say That all Adulteresses were Poisoners and this likewise appears by Valer. Max. lib. 2. p. 8. where it is thus
the Child as to Succession as appears Deut. 21.15 If a Man have two Wives one beloved and the other hated and they have born him Children both the beloved and the hated and the first-born Son be hers that was hated Then it shall be when he makes his Sons to inherit that which he hath that he may not make the Son of the beloved first-born before the Son of the hated who is indeed the first-born but he shall acknowledg the Son of the hated for the first-born in giving him a double Portion of all be hath for he is the beginning of his strength and the right of the first-born is his The Reasons given by Skene why Nothus should signifie a Bastard are 1. Because he saith Bastards are commonly got and procreat of Common Women who are in Greek called Bassaris As to the Etymology 't is answer'd before as to the matter of the Children of Common Women 't is deny'd that they have commonly any Children at all for either they make themselves barren by some wicked Arts of Sterility according to the Poet. Et jacet aurato jam rara puerpera lecto Tantum hujus Artes tantum Medicamina possunt According to which we do not hear of Lais Thais Phryne Flora or others who are famous or rather infamous at the Trade to have had any Children at all which was one cause that Flora made the Common-wealth her Heir And we see by experience that the Children born as they call it out of Wedlock are for the greatest part of such as have kept themselves chast to one Man yea more chast then many Wives who have been coupled to the Husbands by a Priest in a Temple or a Justice of Peace in his Hall And further in Nature the too thick sowing of the field and the too soon plowing after sowing destroyes the Harvest So in greatest probability such a Woman as hath a Child ought to be presumed she hath not been common and the Child cannot be here filius populi but his Father is better known then of the Children of a Woman married by the Priest in a Temple though the Husband hath been always within the four Seas 2. He says Nothia signifies by the Athenian Law a Portion given to a Child not born within Wedlock which was not to exceed Mille Drachmae ergo Nothos signifies a Bastard Negatur sequela For the Child which he himself makes a Bastard he says cannot be Heir or Successor to any which is he cannot be Successor Testamentory or otherwise to any filial Portion at all which the Athenian Law did suffer him to be so it exceeded not the value of Mille Drachmae And further Reg. Majest cited by him saith a Bastard can neither be Heir or succed to the Lands or Goods of the Parents nor the Parents to him A most inhuman Law and subverting the course of Nature which the Athenian was not And what was the end of this Episcopal cruelty of taking away the inheritance of the Parents from the Child and of the Child from the Parents but that they themselves might be Successors to his movables and if he bought not of them for money his Legitimation then they might forfeit all was left to the King not out of any good will they bore to the King but to force the parties Parents and Children to pay them what they pleased or quod non capit Christus capiat fiscus a kind of Anti-Christian Blasphemy against Christ and Treason against their Princes to fâ—ill their Treasuries with the spoils and curses of miserable Children and Parents under pretence of the names of God and the King to make them thought Patrons and Accessaries to their Rapines 3. He says Ismael was a Bastard and succeeded not to the inheritance but had a Portion As to Ismael's being a Bastard it is false and contrary to the Text of Scripture Gen. 16.3 which expresly saith Agar his Mother was Abraham 's Wife If his Mother therefore we Abraham's Wife he could not be Abraham's Bastard for he himself affirms before that a Bastard is got of a Common Woman 4. Abraham's giving him a filial Portion and the Sons of Keturah likewise their filial Portions is an acknowledgment and not a dis-acknowledgment of them to be his Sons Therefore though he excluded them from the inheritance he doth not intend thereby to make them Bastards for it was the Patria potestas of every Father then to dispose of his own Estate how he pleased and to those who pleased him best and might give the inheritance from the eldest if he thought fit till after restrained by the Law of Primogeniture to give him a double Portion 5. The Arabians who descended from Ismael and Turks to this day affirm Ismael to be the right Heir and not Isaac and on no other Title possess the Land of Palestine but on the Primogeniture of Ismael 'T is therefore very unadvised to call Ismael Bastard against a Succession so long derived from him by the Sword without better reasons or a better Sword to argue it against the possessors 6. Other reasons have been made likewise in behalf of the Primogeniture and Legitimation of Ismael which shew him to have been no Bastard as first That the Marriage between Abraham and Sarah being Brother and Sister was Incestuous and therefore the Marriage with Agar more Lawful then hers Next that uncertainty of Filiation was more in Isacc then in Ismael and Ismael had better probation of himself to be the Son of Abraham then Isaac had for Agar was kept in perpetual custody of her Husband from the time of his begetting to her bringing forth Ismael whereas Sarah was let loose to the custody of Abimelech and his Courtiers 7. He says for a Reason That a Child born out of Matrimony is not Sib or Kin or of Consanguinity to any nor any to him which is contrary to the express Text of Scripture Levit. 21.2 There shall none be defiled for the dead amongst the people except for his Kin that is near to him that is for his Mother and for his Father and for his Son yet here was no Father or Son made by the Ceremony of a Priest in a Temple Not much unlike to this was the whimsey which lasted a while of our Episcopal Courts and Common Lawyers that a Mother was not kin to her Son as appears Swimburn 7. part 119. The Case was in the Reign of King Edward the Sixth Charles Duke of Suffolk having issue a Son by one Venter and a Daughter by another made his last Will wherein he devised Goods to his Son after whose death the Son also died intestate without Wife and without issue his Mother and his Sister by the Father's side for she was born of the former Venter being then living the Mother took the Administration of her Son's Goods by the Stat. 21 H. 8.5 whereby it is Enacted That in case any person die intestate the Administration of his Goods shall be
on the same Some make Nothi and Flii naturales all one as Nov. 99. de Nothis makes Nothus the natural Son and illegitimate as Insulanus Naturalis Filius à vulgo barbarorum dicitur qui sit ex illegitimo toro suscitatus sed parum aptè est enim Filius naturalis qui sanguine natura est tuus non adoptione factus A natural Son is he who is by Blood and Nature thine and not made so by Adoption Cato says there is no such word in Latine as Nothus nor any of the like signification but that which comes nearest it is Spurius and Plutarch says it was a name amongst the Romans as Sextus and Decimus and Caius were and as other names were was written short with two of the first Letters S P. but whether it was a name of honour or dishonour is not known as appears by Hartm Pistor lib. 1. q. juris q. 30. only it is said of them that they were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 fatherless which is less suspicious of dishonour then before for they called their god Vulcan 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 fatherless and their god Mars was brought out by Juno without a Father as they would have us beleive and the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or fatherless did signifie only an Orphan whom misfortune had deprived of his Father And it was therefore true what Cato before said Romans had no such word or thing as Nothus That the Latines had no word amongst them which agreed in signification with Nothus in Greek and having no such word they must have no such thing for if they had had such a thing they would questionless have had a word to express it So as Anti-Christian Christian Rome against the fatherless is worse then Pagan Rome and neither Papal nor Episcopal Religion is pure but unclean for it is declared Jam. 1.27 Pure Religion and undefiled before God and the Father is this to visit the fatherless but it seems they think they have a better Scripture of Coke and Littleton of non habet ipsum patrem to defend them as if it were a sufficient cause to rob a Child of what is dearer then his life his good name and lay Ignominy on him because he is fatherless but let them remember though the fatherless hath no Reverend Father in God to own him he hath a greater even God himself for so he is called Psal 68.5 Father of the fatherless and though he is forsaken as David by his natural Father and Mother yet may he say as he saith Psal 27.10 When my Father and Mother forsake me then the Lord will take me up And as there was no Nothus amongst the Pagan Romans so there was no illegitimation amongst them or the Greeks but all natural Children were legitimate and Probation of Filiation was a Probation of Legitimation Legitimation or Illegitimation of a natural Child impossible for there was no such word or thing as Legitimation or making Children legitimate who were not born so it being impossible to make a Child or a Son of such a man who was not born so or to make any not to be the Child or Son of such a man if he were born so till the Bishops made Marriage a Sacrament and made infatuated People beleive such absurdities as were impossible to be beleived of any but à mente captis as of transubstantiation of two Persons into one Person of transubstantiation of the Children of the Wife into Children of the Husband of making the Child of the man not to be his Child nor of his Blood nor of his Sib or Kin and making the Child born of the Mother not to be her Child nor she of kin to it and the like unheard of Fopperies in former Ages and accordingly Connan lib. 2. cap. 16. num 5. saith That amongst the ancient Lawyers there is no such word to be found as Legitimation and if not of Legitimation there could be none of Illegitimation or Bastardy To translate therefore the word Nothus into a word of so many ambiguous significations as are so many Authors variant and contradictory on the same and into a word which was not nor the thing it is made signifie in Rerum natura at the time of writing Nothus is a false and a foul translation Fourthly A word in Scripture which is modest ought not to be translated into a word of Scurrility but Nothus or a Counterfeit is a word modest it is therefore filthily and falsely translated into inhonestum infame vocabulum which they would derive a Sporo Pudendo Muliebri Fifthly The word Nothus doth not revile the innocent Child with the Crime of the Malefactor but Coke though it be said 1 Cor. 6.10 No Revilers shall inherit the Kingdom of God reviles God's Eldest Daughter Nature to be a Whore and her Children to be Bastards for he saith Aerd signifies Nature and Base signifies Base and a Bastard is a Base-natural or one born of base Nature if therefore he makes the Child a Bastard he must make the Mother a Whore and by making her Children Base he makes none Noble but the Children of the Whore of Babylon of whom she is deliver'd by the Man-Midwifry of a Priest in a Temple There being therefore no such word in the whole Original Scripture Old Testament or New which signifies a Bastard or illegitimate Child nor any such thing amongst the Hebrews or Barbarous Nations themselves as illegitimation of natural Children nor in Rerum Natura amongst the wild Beasts Monsters and Serpents as illigitimation of their Young till that more and monstrous old Serpent and Romish Dragon appear'd described Rev. 12.3 Having Seven Heads and Ten Horns and Seven Crowns upon his Heads And his Tail drew the third part of the Stars of Heaven and did cast them to the Earth and the Dragon stood before the Woman which was ready to be delivered for to devour his Child as soon as it was born And Verse 16. And the Earth helped the Woman and the Earth opened her mouth and swallowed up the Flood which the Dragon cast out of his mouth And the Dragon was wroth with the Woman and went to make War with the remnant of her seed which keep the Commandments of God and have the Testimony of Jesus Christ Now though none here undertake to unfold Mysteries or expound Prophecies yet it will be a more proper Exposition then the Episcopal translation of Mamzer and Nothus and their Expositions on the same If any should say allusively though not prophetically and expound Prelacy to be the Dragon with many Heads and Horns Woman-kind to be the Woman the multitude of Provincial and Ecclesiastical Laws of Marriage to be the Flood of Waters cast out of the Dragons mouth against the Woman the illegitimation of all Children not born of a Marriage made by a Priest in a Temple to be the standing of the Dragon before the Woman ready to be deliver'd for to
of Libels and Lampoons It increases unlearned Sects and Heresies who if drawn to Print would either not be able to form their Doctrine in Principles or Positions or if they were they would appear so absurd as would be fit to imploy boys to laugh at rather than Doctors to confute Such were Mahomet's whose Alchoran is not therefore suffered to be Printed or Translated 5. It causes the more dangerous way of spreading Heresies both learned and unlearned to be neglected how to prevent which is the secret creeping into private Houses leading Captive silly Women with whom they walk like the Pestilence in the dark whereas if they appeared in Print or publick Preaching they might be known where they are and opposed 6. It stops the truth of all intelligence which is so invaluable a Treasure and difficult to be got into the Gates of Princes 7. A free Press is the pulse of the Body politic from which is impossible for the wisest State-Physician to discern or prevent the public Distempers unless it is suffer'd to beat free without a Ligature 8. It stops all just causes of complaint and appeal of the Subject to the King and Parliament against Judges and great Officers both Spiritual and Temporal It was my own ill fortune to be prickt Sheriff of a County which enforced me to draw a Petition to be presented to the King and Parliament desiring some remedy against the old Popish Oath continued to be imposed on Sheriffs wherein they swear to destroy the Protestant Religion under the name of Lollary and likewise to be relieved against the extortions of Officers of the Exchequer on Sheriffs which not knowing how otherwise conveniently to Address I appointed the Messenger to get a License to Print which he tryed to do but though there was nothing in it but Humility and Truth as who dare present otherwise to the Legislative Power The Licenser Swore He would not License it for Five Hundred Guinneys whereby it could not be done 9. It stops all presentments by the People to the King and Parliament of public grievances in regard the extent of the Three Kingdoms is great and remote and therefore neither fit nor possible multitudes should come so far to present Petitions in person and if not done in person there are so many Papists and Foreign Agents and their favourers in the way as may and do often intercept from the King's knowledg the humble applications of his Protestant Subjects as is easie to do when perhaps comprised only in one sheet of Paper To avoid therefore the stifling of all just complaints of the Subjects and the ill consequences which have been too often occasioned thereby of presenting Petitions by Tumults and Armies It is far more safe and equal that the Press should be open to the People in all public Addresses to Supream Authority it being many times a sufficient satisfaction to them if they understand that the King and Parliament do but vouchsafe to hear their complaints and desires though they think it not fit to grant them And a Child will often times awe his Enemies from harming him if he do but threaten them he will tell his Father where they know he hath that liberty given him 10. It appears by experience That the Liberty of the Press in Holland and other Foreign States where permitted not only bring no inconveniences but very great benefits and advantages to the People By pretence of giving the King the name of Supremacy they have taken the Thing to themselves The word Supremacy is of so infinite Extent as it can properly be attributed to none but the Divine Power of God and the words Jurisdiction and Government with which it is joyned in the Stat. 1. Eliz. 1. which gives the Form of the Oath of Supremacy are of that Vast Latitude that in their large literal Sense they include all Legislative Judicial and Executive Power amongst men and the Subject matters over which it is exercised are all Divine and Human Rights yea what is more all things Spiritual and Ecclesiastical as well as Temporal circumscribed in nothing to difference it from the Papal Supremacy pretended over Heaven Earth and Hell but the Bounds of her Majesties Dominions within which no wise man ever believed Heaven and Hâ—ll to be contained though the Bishops under pretence of the same Supremacy given her Majesty which the Pope had have in the Royal name exercised the same not only in matters of Marriage Filiation and Succession concerning which I intend here only to contend with them but in all other matters of Oppression of the Consciences and Rights of the Subjects both as to Religion Liberty and Propriety as high as ever the Pope did though never any such Supremacy was intended either by the Statute or Oath to make Canons Judg or Execute but what hath before been or lawfully may be exercised or used so the word lawfully refers to time past as well as future and that neither Pope nor Bishops had ever any lawful Supremacy or Power to make or use Canons or Ecclesiastical Laws concerning Marriage Filiation or Succession but did the same by Usurpation in this Realm is sufficiently proved before against my Lord Coke's Ecclesiastical Law P. 31. and the Form of the Oath makes the Ecclesiastical Supremacy no higher than the Temporal Supremacy which every one knows in all Acts of Legislation is joyntly in the King and Parliament and not singly in either Estate And therefore Bishops can claim to exercise no Supremacy from one unless they have it from both nor of any matter which is not within the Kings Dominions or of any other human Power but only belongs to the Kingdom of God And that Pious Queen her Self who began her Reign with the Statute and Oath of Supremacy soon found the words so general and thereby obscure and the letter wrested to such extremity by Episcopal Expositions that she endeavour'd by a Subsequent Declaration published to have explained and limited according to the true intention but the same not being done by Act of Parliament became not of that Force was desired and left the Bishops more liberty to exercise more Supremacy in the Royal Name by pretence then was in truth intended in the Act or Oath And the subtlety wherewith they glossed their designs appears in the Act it self of which they were the chiefest contrivers For first they begin with a Nolo Episcopare alas as if they intended never to Episcopate or seek for Ecclesiastical Supremacy againâ— for they utterly abolish all Foreign Power which was the Popes and all usurped Power which was their own and annex all Spiritual and Ecclesiastical Jurisdiction to the Crown which includes the Jurisdiction of Marriage Filiation and Succession and many other matters for they knew if any part of the Supremacy had been left at Rome they could never have got it to Canterbury and though the one eased the Burden of the Subject no more than the other but rather by
Ten Wives of a Turk which kind of Luxury first corrupts the mind Nil non permittit mulier sibi turpe putat nil Cum virides gemmas collo circumdedit cum Auribus extensis magnos suspendit elenchos and corrupts and effeminates the State by exhausting the Treasury in Faeminine which is necessary to be bestowed in Military Ornaments and maintenance Seneca saith That Women would wear too rich Inheritances at their Ears And it is related of the Daughter of a Proconsul That she wore at one time in Apparel and Jewels the value of Three Millions of Crowns This Vanity is by many attributed to be one of the chief causes of the decay and ruin of the Roman Empire I should but trespass on the Readers patience to recite the excessive Costs particularly and the profuseness of Princes and great Persons in Masking Tilting Tuneaments at publick Weddings in one whereof a French King Tilting in Person was kill'd by the casual running of a Splinter of the staff of the Lance into his Eye as likewise to describe the Gluttony Riot and Drunkenness accompanying Marriage-Feasts they being all notorious 6. It undoeth the Poor in their Marriages The chief times of the Year seasonable for Marriage of Advent Septuagesima and Rogation it deprives the Poor of the use of Gods Ordinance for they are neither able to lose their days labour to travel to the Court nor to expend the Money necessary to pay for a License to Marry and when Married publickly by a Priest in a Temple the expense of new Cloths for Man and Woman the Wedding Dinner the Barrel of Beer the Bridale-Night the Baptizing of the Child the God-Fathers and God-Mothers the Gossips and Churching the Woman Falling all within the compass of the Year most commonly bring the Poor man so far in Debt that he never recovers out of it as long as he lives I was informed of a certain Poor Man who intending to be Married agreed the day with the Minister and Clerk and accordingly on a Prayer day he and the Woman came to the Church intending to be Married and came up to the appointed place in the Body of the Church where the Minister reading first the Form prescribed of the Institution and Ends of Marriage before he joined their hands to Contract them the man to be Married laid his Money on the Ministers Book that he might proceed to Marry him which the Minister refused to do unless he would give him more Money than there was the man answer'd There was all he had and prayed him to accept thereof the Minister peremptorily refused unless he made up the Price to Marry him the Poor man seeing no remedy took up his Money again and he and his Woman returned to his House without any joining or Benediction of the Priest and whether he had a Malediction I cannot tell but at Night the Couple that were thus Churched and not Married the Ceremonial way went to Bed and Married themselves the Real way which though contrary to Episcopâ—l Canons yet no Bishops can shew to be contrary to the Moral Law of God but every one can shew that Laws of compulsion of a Poor man to marry by the Ceremony of a Priest and giving liberty to the Priest to refuse to Marry him unless he pay him more than he hath are contrary to the Moral Law of God for this is prohibiting to Marry and a depriving of the Poor of the Use of Gods Ordinance which is already proved to be the Doctrine of Devils 7. It causeth immadesty in Brides wanton Songs and Ceremonies premiscuary Dancing and corruption of Youth How modest Nature is in the State of Innocence appears well in the expression of a Vertuous young Lady a Virgin who said She wondred how any Woman could have the face to go openly to Church with a Man and the Custom of most Nations not to suffer any Woman to appear in Publick without a Veil manifesteth the same Yea Mahomet himself forbids Women to expose themselves to publick view for thus Alch. Cap. 33. P. 262. he represents God speaking to him Oh Prophet speak to thy Wives and thy Daughters and the Wives of True Believers that they cover themselves with Veils And Cap. 24. Speak unto the true believing Women that they retain their Sight and that they be Chast that they suffer nothing of their Beauâ—y to be seen but what ought to be seen and that they cover their Bosome and their Visage that they permit them not to be seen but by their Husbands their Children the Children of their Husbands their Brothers their Nephews their Sisters their Women their Daughters Maid-Servants and Slaves their Domesticks that are not capable of Marriage and Children that regard not the Beauty of Women And this publick exposing of Virgins in their Marriages to be the Gazing-stocks of the multitude in a Congregation seems likewise against the precept in Scripture 1 Cor. 11.10 For this cause ought a Woman to have Power on her Head because of the Angels which is interpreted covering on her head and is likewise prohibited by Christ Matth. 5.28 Whosoever looketh on a Woman to lust after her hath committed Adultery with her already in his Heart If it be therefore Adultery to look on a Woman to lust after her then is it a Temptation to Adultery to expose her who is to be another mans Wife to the publick view of the whole Congregation in all the dress of Temptation whereof Beauty can be capable Qui videt is peccat qui non te viderit ergo Non cupiet Facti crimina lumen habet Propert. lib. 3. Eleg. Who sees thee Sins who not doth neither hate Nor love thee Light hath all the Crimes of Fate Why it is not more modest therefore for Virgins to Marry in Thalamo than in Templo appears not I shall recite not here the particular wanton Songs and Ceremonies which are used with us and in other Nations by reason of this pompous Ceremony of leading the Bride to the Priest and Temple amongst a Rout of Boys for whom between her Banning and her Churching it is asufficient sport a Week after lest the same should cause what I endeavour to avoid the Corruption of Youth and shall only here mention the grave Admonition of a Poet concerning the same Nil dictu foedum visuque haec limina tangat Intra quae Puer est procul hine procul inde Puellae Lenonum Cantus pernoctantis Parasiti Maxima debetur puero reverentia siquid Turpe paras nec tu pueri contempseris Annos Juvenal 8. It exposeth to publick view what God hath commanded to be secret and ridiculously appointeth ocular Witnesses of what is invisible and neither lawful nor pussible to be seen Of this Vid. P. 101 104. before 9. It causeth Community of Women Community of Children Fornication Adultery Stews Brothels and the dissemination of most contagious and deadly Diseases amongst the People As to Community of Women it
Christ Commands for if as is the Modern practice in Scotland the Lords of the Session never read a word of the Libell'd Summons and they may be Blasphemy or Treason for ought they know yet they set their hands to them as fast as they can be brought and I have my self set my hand to Hundreds of them and that course of Summoning being by Act of Parliament made in time of Popery which we had no power to alter I thought that kind of Justice better than none at all though before Oblatio Libelli it serves to no more Use than our Latitat and Subpoena Offices and others to have a pretence of gathering Money for the People for doing nothing and perhaps if all Truth were spoken for doing Mischief Fourthly If as the ancient Practice was of Sir Thomas More when he was Chancellor of England who used to read over himself in Person every Bill was prefer'd in Chancery and consider whether it were just or no before he would grant a Summons of Subpoena and of Skene in Scotland who as I have been informed there would likewise read the Bills himself before a Summons was granted and if he found them not fit would tear them in pieces and throw them over the Bar. It hath been therefore to no purpose for the Plaintiff to have sent to Judges for Summons who might see that Injustice in his Bill which the Defendant perhaps might not see or might be willing to pass by if it had been first shewn to him at home Fifthly It is unjust for the Plaintiff to make his Oblatio Libelli first to the Judg and to get a Summons thereon before he doth it to the Defendant for the Defendant may perhaps if shewn him shew the Plaintiff so just exceptions against the Bill as may satisfie the Plaintiff himself and save both Parties the Trouble and Cost of going further to Law or he may amend his Bill on such exceptions and if he think it just after amended insist on the same further to shew his bill first therefore to the Defendant though his Enemy if he will except against it is more profitable to the Plaintiff for amendment than if he shewed it his own Councel for a Friend may never shew the Party his Faults as an Enemy will As it is more Just so it is therefore more safe first to make the Oblatio Libelli to the Defendant before it be done to the Judg. Sixthly The Justi dies or time of Returning an Answer cannot be agreed without great Trouble and Cost unless there be first an Emparlance between the Parties without troubling the Judg. Against offend the taking out of Execution on Judgment acknowledged by assent and on Recognizances and Statutes in England and on Registred Bonds in Scotland without Summons or Oblatio Libelli or Warning or Demand Seventhly Because Judges use to take Caution or Plegii de prosequendo of the Plaintiff and the like Pledges of the Defendant purposely to hinder Agreement according to Christ and to set them by the Ears to get in Fees to the Court. 2. That no man ought to be Summon'd before a Judg until a Productio Testium first made to him For Christ saiâ—h If he will not hear thee then take with thee one or two more that in the Mouth of two or three Witnesses every word may be Establish'd whence will follow that the Mock-Probation still falsely mention'd in the end of every Declaration Et inde Producit Sectam and Summons on Motions and Rules of Courts founded on the Infamous Credit of Affidavit-men are abominable Reliques of Popery and Anti-Christian 1. Because they are not produced to the Defendant where he dwells that he may except against their Persons if he hath cause and if he hath none he may see them Sworn and if they Swear false he may have his lawful Remedy against them 2. Because the Affidavit-men are single Witnesses whereas Christ Commands two or three Witnesses 3. They are both such as live in London and Westminster and such as come out of those Parts altogether unknown to the Judges and Masters who take their Oaths if therefore they will proceed on the Testimony of single Witnesses seeing by the Precept of Christ Actor Sequitur forum rei and the Plaintiff is to carry his Witnesses to the Defendant it is far more Just and Equal that the Affidavit be either taken by Commission in the Parish where the Defendant lives or every Minister be Authorized to take the Oath on notice given to his Parishioner to be present if he please at the Taking 4. Because generally the Affidavit-men are Knights of the Post and common Swearers for Hire who will Swear any thing for a Dinner 5. Because Probatio non admittitur in contrarium whereby Courts overflow with Perjury And as is said Jer. 23.10 Because of Swearing the Land mourns 3. That a Defendant can be guilty of no Contumacy till an Oblatio Libelli and a Productio Testium first made to him For Christ says The Plaintiff is not to tell the Church till two Refusals made by the Defendant one to hear him single the other when he haâ—h produced his Witnesses 4. That no Pledges or Distress ought to be taken till Judgment For Ezek. 18.7 says The Debtour ought to be restored his Pledg And Christ Commands on Contumacy shewn by two Refusals immediately to tell the Church so he is to do nothing further till the Sentence of the Church is pass'd and very just for thus far none hath Judged whether his Cause is just and his Brother Contumacious but himself and he ought not to be Judg in his own Case and much less be his own Carver of Execution by Pledges and Distresses on his own Authority without the Sentence of a Judg. Secondly Otherwise the Ass of the Fatherless the Ox of the Widow and the Pledg of the Poor would be taken from them without Hearing of their Cause and the Creditor Land-lord and every other Person would be Judges in their own Case and Carve Execution for themselves Thirdly Though the Poor may be able to give Convenotinal Pledges yet they are not able to give besides Judicial Pledges when they are enforced to sue for their Conventional unjustly seized and detained from them nor though they are able to Mortgage the Right of their little Living to be seized when they fail paying Interest for the Debt yet are they not able to leave Possession by which they must live if the Creditor unjustly enter before a Judgment Declaratory and a true Account made by him and a Return of the over-plus whereto the Mortgage amounted above the Debt So though a Poor man is able to grant a Rent-charge and a Clause of Distress if he be in Arere on paying Interest for the Debt yet if the Creditor wrongfully or excessively Distrain he is not able on a Replevin to give Pledges de Prosequendo and de Returno habendo to take a Conventional Distress therefore or
to make a Conventional Seizure Entry or Re-entry of or into Goods or Lands Pledged for Debt or Rent or made liable by any Covenant or Clause Irritant to forfeiture for non payment of the same before a Judgment Declaratory of the non payment and of the value of the Goods to be Distrained and Lands Seized for satisfaction of the same is as unjust and wicked as to take a Judicial Distress Pledg or Forfeiture before such Judgment pass'd The Laird of Sauchi Sued one of his Tenants to make him remove from his Tack or Lease the Defendant excepted That he had a Tack it was replied That the Tack was null and void because there was a Clause Irritant contained in it that if the Duty reserved were not paid the Tack should be null and void and that the Duty was not paid to which was duplied by the Defendant that this failure of payment was not yet declared by any Declaratory Sentence of a Judg. The Lords found that there ought to be a Declaratory Sentence of a Judg first Declaratory Sentence of Scotland before any removal of a Tenant ought to be though the Clause Irritant had been that the Tack should be null without any Declaratory Sentence 4th July 1628. 5. That no Bail ought to be Exacted before Contumacy or Judgment First If to Distrain dead Goods and Pledges of Cattle is prohibited before Judgment à Fortiori to Exact for Pledges or Sureties the living Bodies of men is prohibited Secondly It is manifest Christ intended to relieve the oppression of the Poor against the Rich and that none but the Rich are able to give Bail to Tolerate therefore the Rich because they can give Bail on every unjust Suit of theirs to Exact Bail of Poor men before Judgment who are not able to give it fills Prisons and destroys innumerable Innocent Poor and leaves their Blood to cry against those who Tolerate so great an Oppression as to make Necessity Contumacy and Punish the Poor for his Poverty No less abominable is the Practice of Attornies and Clerks with their Writs of Privilege who will command what Bail they please though the Poor man owe them not a farthing and he being once Arrested and not able to give Bail he must therefore Rot or Starve in Gaol or pay whatever the other will ask right or wrong The Chancery Clerks and Officers go a degree beyond these and will take no Bail but four Subsidy men and if they can but Arrest the pretended Debtor will keep him in hold too till he pleads Instanter what they will have to Ruin him These are the Prodigious Reliques of Popish Tyranny left in Protestant Courts of Law and Conscience and translated from Romish Ecclesiastical-Clerks to English Lay-Clerks It were more just these Privileged men had a Privilege granted to Rob on the High-way for there honest men would be able to defend themselves against them but with these two Privileges of theirs one that they will take whomsoever they please Prisoners and the other that they will be Sued no where but in their own Court makes it as difficult to deal with them as Turky Pyrats who will be Tried by none but their Fellows nor Sued any where but in Algier How little necessity there is of this horrible Oppression of Exaction of Pledges No Pledges Bail Outlawries required in Chancery Distresses Bail Penalties Forfeitures and Outlawries before Judgment doth easily appear from this that in the Chancery there is none of all these required and though the Defendants are Richer and the Causes of far greater value than those in Common Law Courts yet do the numerous Plaintiffs rather shun the Common Law Courts and throng thither choosing to Sue there than in the other and certainly if it be truly consider'd these Exactions of Bail and Outlawries and Suprizes of Debtors before warning do but necessitate them to flie from their Creditors and deceive them of what they would be ready to pay on a fair Demand or warning and liberty given to come to a just account with Security This cruel dealing therefore of the Creditor with his Debtor before Judgment tends not to his Profit but very much to his Loss as well as it doth of the Defendant and many times undoes them both 6. That no Arrest ought to be made before a Judgment though there is Contumacy This follows from what hath already been proved That a Plaintiff ought not to be Witness Judg or Executioner thereon in his own Case and therefore not of the Contumacy of his Brother Contumacy but if he is Contumacious the Plaintiff ought by his Witnesses to make Probation of those matters which are necessary to shew a Contumacy as 1. Oblatio Libelli 2. Productio Testium 3. His Refusal to answer and satisfie and thereon obtain a Sentence Declaratory of the Contumacy of the Defendant and a Capias to Arrest him All Arrests therefore before Judgment Pursuivants Tipstaves by Pursuivants Messengers of Arms Tipstaves Maces Sheriffs or any other are Reliques of Popery and contrary to the Law of God and of the Land and indeed are so far from having Right to Arrest before Judgment that they ought not so much as to Summon before an Oblatio Libelli and a Productio Testium 7. That though there is a Judgment yet Christ allows no Imprisonment of a Debtor not able to pay for Disability is no Contumacy and Poverty may more often fall on the Righteous than the Wicked The Scripture makes our Demeanour to the Poor in Prison in this Life of great concernment to our well or evil Being after Death as is said Matth. 25.34 Then shall the King say unto them on his Right hand Come ye Blessed of my Father inherit the Kingdom prepared for you from the Foundation of the World For I was an hungred and ye gave me meat I was thirsty and ye gave me drink I was a stranger and ye took me in Naked and ye cloathed me I was sick and ye visited me I was in Prison and ye came unto me Then shall the Righteous answer him saying Lord when saw we thee an hungred and fed thee or thirsty and gave thee drink When saw we thee a stranger and took thee in or naked and cloathed thee Or when saw we thee sick or in Prison and came unto thee And the King shall answer and say unto them Verily I say unto you In as much as ye have done it unto one of the least of these â—y Brethren ye have done it unto me Then shall he say unto them on the Left hand Depart from me ye Cursed into everlasting Fire prepared for the Devil and his Angels For I was an hungred and ye gave me no meat I was thirsty and ye gave me no drink I was a stranger and ye took me not in naked and ye cloathed me not sick and in Prison and ye visited me not Then shall they also answer him saying Lord when saw
better Form And Brudnell agreed with Fitzheabert Brook Ch. Justice I conceive the contrary and that the conclusion is not good And Sir as to what is said that the Law is no other but that a man shall Declare his matter in Truth and good Sentence the Law is more than so for without Formality the same is nothing worth as the Form of Law is a man shall shew his matter without Duplicity of Multiplicity yet may matters more than one be True and in good Sentence but they want Formality and therefore are nothing worth and a Form ought to be used or otherwise all things will be in confusion So in Trespass the Defendant ought to give a colour of Right to the Plaintiff yet the colour is not true nor the Sentence the better but it is the Formality which is required and Formality is the chiefest thing in our Law and though the matter in the present Plea appears in Truth and good Sentence yet here wants Formality for he ought here to have concluded not Judgment Si Actio but Sic non est facium for I conceive in regard only two Convenants of the Indenture were read to him and there were more Covenants not read that the whole Indenture is void and it is Fraud in the Obligee And Pollard agreed with Brook that it was no good Plea and that the whole Indenture was void But to this Fitzherbert and Brudnell might have repli'd that admit the whole Indenture had been all void in Law for the Fraud in part and the Defendant might Rigore Juris Plead it yet Quilibet potest Renunciare juri pro se introducio if the Defendant was more merciful than the Law and his Conscience would not suffer him to use Summum jus but doth assent to perform those Covenants were read to him is it therefore Reason or Conscience that the Plaintiff for his good Nature and Courtesie should return him Evil for Good and put the Burden of all the Covenants on him because he would perform any when he needed perform none if he would have pleaded in a Form against his Conscience and that Truth ought to be prefer'd before Fiction and Formality But I leave the Merits of the Cause to others to Censure and shall only upon the whole Dispute take thâ—se Observations 1. It appears by the Case that there are but Four Judges in the Court and they are divided Two against Two Fitzherbert and Brudnell for Truth against Fiction and Substance against Formality and Block and Pelâ—ard for Fiction against Truth and Formality against Substance whence is shown that there have been and are many good men Judges and other Professors of the Law who with all their their Power Desire and long to remove those Abuses of Fictions Forms and other Irregularities which are Reproaches on the Practicers but should they afflict themselves to death can do nothing if equipoised or overpoised by the other Party therefore they ought not to be imputed to those who are not guilty but the consideration of them ought to be left to the Legislative which hath Power to Redress them when they please with a word and shall give account to God if they neglect the same 2. It may be observed how many Contentions arise about a petty piece of Formality when there is none about the Substance which is acknowledged by Coke himself Com. Lit. 303. whose words are these When I diligently consider the Course of our Books of Years and Terms from the beginning of the Reign of Ed. the Third I observe that more Jangling and Questions arise upon the manner of Pleading and Exceptions to Form than upon the matter it self and infinite Causes lost or delayed for want of good Pleading by which he means Formality hath destroyed infinite good Causes which is a most horrible thing to be Tolerated in any Government 3. The next thing observeable is The great Ignorance of Courâ—s themselves in their own Formalities for they have continued by Coke's confession Jangling and Wrangling about them ever since Edward the Thirds time and are yet never the wiser nor any perfect Form invented or settled by them they are still ever Learning and never come to the knowledg of Truth and so will be to Dooms-day if they are not by God sooner called to Account of their Stewardships and this point of Ignorance in their own Formalities is further confessed by Coke in another place where he saith It were to be wished that Littleton had writ something concerning Pleadings which shews he was but a wisher or woulder at it himself for whom if he had been able it had been far more proper to have writ a perfect Form of Judicial Proceeding than to wish the same had been done by one dead Hundreds of Years before and if he could have had him alive 't is likely he was as much to seck as himself for he could not write any directions concerning it to his own Son though it was a point above all other which he desired he might Learn and in respect of which his Tenures were but Trifles but he is fain to leave it to him as his other Quaeries de Dubiis and a Terra Incognita where he should gâ—t Rich Mines of Gold and Silver if he could light on it in these words And know my Son that it is one of the most Honourable Laudable and Profitable things in our Law to have the Science of well Pleading in Actions Real and Personal and therefore I counsel thee especially to employ thy Courage and Care to learn this Which yet neither he nor any since ever learnt or found out in this Climate neither is it possible for any to do unless those very Forms of Actions and Writs are made only Directive and not Coercive and Liberty given of Commenceing and Disputing Suits on more Solid Foundations of Right than can be laid on any Forms in the World especially on such in which the Courts themselves are Ignorant how to proceed and their so many divided and contrary Opinions in the Expositions of the Law have so intangled the cross Threads of their several Clues of unravell'd Opinions that now no Courts unless they clean break them all to pieces are able ever to get out of their own Labyrinth of Formalities and are most commonly in the pitiful Condition wherein Vigelius Dia. Jur. 477. finds his Judg who is Ignorant of the Forms of Judicial Proceeding At nunc saith he Cum Judex Litiscontestationis adeoque judicandi ratione sit ignarus sedet inter Advocatos Procuratores tanquam Asinus inter simias nescit quando Disputationes in Causa permittendae sunt quando contra sunt inhibendae hinc ne necessarias inhibeat non necessarias permittit Advocatis in infinitum Disputandi Licentiam concedit non Semel sed saepius dilationes Dat easque velex levissima causa But now saith he when a Judg is Ignorant how tostate the Point of the Cause and of the Form of
Moral Law of God of Truth and Equity neither if these Writs were Formed according to the Truth and Equity of the Moral Law of God is it possible a sufficient number should be Formed for Writs are finite and Cases of Equity infinite and not to be put in Writs or written except by God in the Fleshly Tables of the Heart and in the Spiritual Tables of the Soul it self and Conscience It will be asked How could they subsist before H. 6. without a Sub paena and Equity from a Chancellour seeing the Common Law Writs could not supply it and what expedient is there now how Equity may be supplied To which I answer That Equity was then supplied by the Writ of Right and Justicies the Titles of both which Writs signifie Equity and likewise other Writs and the General Issues Formed on them of the Meer Right Not Guilty Null Tort Null dissersint Nihil debet guided the Jury to find according to Right and Equity by the Moral Law of God and not the Ceremonial Law of Man till the Judges to wrest the Power belonging to Jurors into their own hands brought in the Tender of the Demy mark to turn the Issue of meer Right into a Possessary Issue and instead of Truth brought in the Pictions of Colours destroyed the Justicies by Writs of Remover gave way to false Laying of Counties in Transitory Actions changed Venues granted new Trials abated Declarations for Variance from the Bond and not Sueing for what was paid as well as for what was not granting Arrests of Judgment after Verdict and not permitting to demur first to the Law and after to plead to the Fact before Verdict prohibited on the Issue Not Guilty matters of Justification to be given in Evidence admitted Demurs to Evidence admitted special Verdicts caused Juries to be of an even and not of an odd number and the Verdict not to be according to the Plurality of Votes and many other ways they had to weary Juries from giving a Verdict according to Conscience and Equity or when they had so given it to same I conclude therefore to compell men to Commence Suites by Writs in the present Age is to condemn them without Hearing of the Equity and Merits of their Cause and to compell them to revive again those Ancient Writs and trie Equity by Juries hath many great inconveniences before mention'd to be incident to all Writs especially such as are Antiquated and not understood but all these mischiefs are salved by Commencing Suites by a Copy of the Declaration Sworn in stead of a Writ which cannot be Sworn and a Judg Commissionated with Jurisdiction of Fact Law and Equity under Appeal which single Judg in a Court by himself sitting without Vacation as a Chancellour hath Power to do will no doubt be able to dispatch more Causes without troubling any Writs Juries or Councel at the Bar and more justly and under Account in one Year then 't is possible for any Chancellour with Plurality of Offices or Court with Plurality of Judges Juries and Councel at the Bar to do in Seven 6. Men are condemned before Hearing on the Capias Vtlagatum and Excommunicato Capiendo A Satyr on a Papist and a Protestant Imprison'd one on an Outlawry the other on an Excommunicato Capiendo against Imprisonment before Hearing A Papist and a Protestant Who used when they met to Rant About the Altar and the Rail Were both together Clapt in Gaol The first was catch'd by an Outlawry The last whose Conscience did vary From Bishops and their Common Prayer As Felon or a false Betrayer Was therefore Excommunicate And put to beg within a Grate Pap. Brother then quoth the Papist sad Are Protestants too grown so mad To have an Inquisition here Who thus can though no cause appear Forfeit our Goods and Selves at will In Prisons cold to starve and kill Before they Hear us doest not know Amongst our selves it is not so Who by Experience wiser grown Will Inquisition now have none Witness the Rich Venetian And wary Dutch who late began For Liberty against such Lords And Swisse with their two handed Swords For this Proud Aragon Rebell d And Naples Silk-men hardly quell'd And many more abhor'd such Tricks Yet are they all good Catholicks So Holland justly now prevents Imprisonment of Innocents And makes to help the Poor opprest Before a Judgment no Arrest Is this the Charta and of Right Petition for which you fight That every ' Torney and his Clerk Who use to live upon the shark Forge all the Outlawries they please Remedies worse than the Disease And that Poor men may be betray'd First Forge the County where 't is laid They Forge and Antedate the Writs Of Parchment cut in little Bits Then next they Forge the Sheriffs name And Forge Returns upon the same They Proclamations Forge and Feign And Exigends next without pain And all this Knavery you may spie Page Sixth of the Academy Which is their Mother and their Nurse Teachers to Forge and Steal of course Such Clerks deserve hanged to be As Nicholas Clerks upon a Tree And thus though made them to prevent They fool all Acts of Parliament For no Averment must deny The Shrieve or Clerk although they lie Is this the Liberty so proud You use to cry it up aloud And Property you so much Vant That every Papist it doth want What Purgatory can you tell Is worse than this on Earth your Hell Or what Hell is there more worth fearing Than Your Damnation without Hearing He neither shews me Time or Place Nor Witnesses brought Face to Face My Goods are all Confiscated My very Wives and Children's Bed The Bailies Seised without account Of Price to what they did amount Or Witness Writings Boxes Chest And Money too on a Suggest And Lies and Fictions in worse case I am than Felons in this Place Their Goods although the Law is strict Not Forfeit are until Convict But left to feed them Oh the blest Justice is shewn to men distrest By Protestants who only you Say have the Religion true But Christ says Know them by their Works Which shews you worse than Jews or Turks I have not left a Bit of Bread Witness these unfeign'd Tears I shed The Plaintiff asks of me a Sum As at the Dreadful Day of Doom I answer shall and God doth know I do not him a Farthing ow Yet can I not although I try Be brought to answer or deny His Forged Stuff or see the Face Of Judg or Jury on the Place But here to perish am designed And to this Dungeon confined Unless I give what e're he 'l ask This is my miserable Task I think you now turn Witches too The Rogues the mischief who did do To bring me here sure had a Spell What Language 't was I cannot tell 'T was written in a little scrow Half-words and dash't that none might know Or ratâ—er scratch'd it was in Soot With Devils Claw or Cloven Foot Prot.
John Stratford Arch-Bishop of Canterbury on whom the King likewise laid the blame of his Wants writes a proud Letter to the King and desired him and his Council without delay to deliver the said Prisoners otherwise he plainly writes That according to his Pastoral Charge he must proceed to the Execution of the Sentence of Excommunication concluding how notwithstanding it was not his Intention to include the King Queen or their Children so far as by Law they might be Excused It was well for the King he was in the head of a brave Army in France for if he had been single as his Father was they who durst Menace him amongst all his Forces in the Field if he had lost the Day as his Father did were as likely to bring him for a French Pension to as miserable a destruction as they brought his Father but by Gods Providence he proved afterward Victorious but first Replied by another Letter to the Arch-Bishop That Relying on his Council he was first put on the Action of the French and that he had promised and assured him he should not want Treasure to perform the work and that notwithstanding by the negligence and malice of the said Arch-Bishop and his Officials those Provisions Granted him by his Subjects in Parliament were in so slender proportion Levyed and with such delays sent over as he was pressed of necessity to his great Grief and Shame to Condescend to the late Truce with the French though extreme Wants charged with mighty Debts forced him to throw himself into the Gulf of the Usurers in such sort as he began to look into the Dealing of his Officers some of which upon apparant notice of their ill Administration of Justice their Corruptions and Oppressions of his Subjects he removed from their Places and others of mean Degree he Committed to Prison and there detained them to the end he might find out by their Examinations the truth of their Proceedings Then he charges the Arch-Bishop with his own Corruption and declares how himself being under Age had through his ill Council made so many Prodigal Donatives prohibited Alienations and excessive Grants and Gifts that thereby his Treasury was utterly Exhausted and his Revenues diminished and how the Arch-Bishop corrupted with Bribes Remitted without reasonable cause great Sums which were due unto him applying to his own Use or Persons ill deserving many Commodities and Revenues which should have been preserved for his necessary Provisions and concluded Unless he desisted from his Rebellious obstinacy he intended in due time and place more openly to proceed against him and the King before the Arch-Bishop Submitted caused a Letter to be sent to the Pope from the Parliament not to make any more Collations of Benefices in England and prohibited them on pain of Death on any that should present or admit them which Resolute slighting of Excommunication both from Arch-Bishop and Pope though in the very time of War with France made the Pride of the Arch-Bishop stoop and with much ado got himself Reconciled to the Kings favour for which the King was bound to thank God and not the Pope or Bishop who gave him that Victory and Success against the French as neither Pope or Arch-Bishop dared to Excommunicate him Against Richard the Second one of the Articles brought against him to have him deposed was That whereas the Realm is immediately holden of God after he had obtained divers Acts for his own particular Ends he obtained Bulls heavy Censures from Rome to observe and perform them contrary to the Honour and ancient Privilege of this Kingdom whereby appears That even in a time of Popery the Assistance of the Pope and Bishops which were included in it was so far from being a Protection to the King that it was Destructive to him much more is the Assistance of Bishops likely to be Destructive rather than a Safety in a time of Protestancy The Bishop likewise Concurr'd with the rest and accused him That he had taken Money Jewels and Plate from them at his going into Ireland Bishops accuse R. 2. for Trifles to Depose him so far were they from seeking to preserve the Kings Life with those Superfluities of theirs where they could keep them and their Bishopricks together that they shewed their Fidelity to their Native King by endeavouring to destroy him For such Trifles divers other Articles were laid against him in behalf of the Bishops by whose doing only the King was utterly undone Truss 46. And not one of all the Bishops in England or Ireland spoke so much as one word to preserve their Native Sovereigns Life but only one namely Thomas Mercks Bishop of Carlisle Dilemma of danger from Excommunication As to the Dilemma a Prince falls under in expecting safety of Government from the Power of Excommunication of Popes or Bishops either the greater part of his Subjects will be Religious or Superstitious if Religious they will so easily see through the Superstition of Consecration and Excommunication as it will rather Irritate and Provoke them as it did in the late unhappy Civil Wars but if Superstitious will the Pope or Bishop make Use of the great Interest and Strength they gain thereby in the People to advance their pretended Spiritual Sword above the Temporal and their own Supremacy above Temporal Kings and Princes which if Resisted by the Princes of such Subjects hazards their being Deposed and losing Kingdoms and Lives together as appears by the Examples before Recited In the same danger is a Prince who Trusts a Temporal Officer whether Treasurer or other with too much Power of Money as Theocritus Anno 518. caused Amantius an Eunuch to give Justin Amantius the General of the Army a great Sum of Money to give the Soldiers to choose Theocritus Emperour but Justin distributed it for himself and so obtained himself the Empire The Western Emperours first raised the Popes to that height as to Excommunicate the Eastern Emperours the succeeding Popes to return their Advancers due thanks Excommunicated after the Western Emperour The French Kings assisted and after raised the Popes to such height that they Excommunicated Deposed and Poisoned the Western Emperour after by the same Power the French King gave them in thanks they Excommunicated and Assassinated the French Kings The Princes of Sicily and Naples had been mighty defendors of the Papacy but when they had made it mightier than themselves the Succeeding Popes took from them their Sovereignty to themselves As to the Impossibility of Safety of Princes amongst Subjects Educated in fear of Excommunication Subjects Educated in fear of Excommunication dangerous to Princes It is to be Noted as well from the Testimony of approved Authors as from the Scripture it self that amongst the Primitive Christians those who are now called Bishops but in the Original word signifie only Overseers were Parochial Bishops or Overseers and not Provincial and that they were the same with Presbyters and differ'd not in