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
related Veneficii questio moribus Legibus Romanis ignota quam plurium matronarum patefacto scelere orta est quae cùm viros suos clandestinis insidiis veneno perimerent unius Ancillae indicio protractae pars capitali judicio damnata centum Septuaginta numerum compleverunt An Inquisition was made concerning Poisoning being an offence not known to our Manners or Laws and the wickedness of many Matrons being disclosed who by secret Treachery had kill'd their Husbands by Poison they being drawn forth by discovery of a Maid that part of them who were condemned to death amounted to the number of One Hundred and Seventy A great number for one City at one time and was no doubt not one of the smallest causes why Divorces grew so frequent in after-times not as is vainly pretended out of wantonness but of necessity Whereas if this private way of Justice and defence should not be tolerated to Families without publick litis contestations neither the honour or safety of any Family or Persons therein could be preserved and such as had a mind to separate if they could not do it but by publick Judgment would likewise either as the Muscovites are said to do Hire some false Witnesses or Knights of the Post to defame one another or oftentimes if that will not do to destroy the lives of one another or before the Party can make publick proof Poison or otherwise kill him whereby after it will be too late as it was in these 170 Husbands for any complaint to be made to the publick and the Wives are likewise in as great danger if they have not the same liberty of providing for them themselves on the first discovery of danger Had it not been better for all these murther'd Husbands and Wives to have parted on either side then to have acted such a Tragedy together So Aegisteus corrupting Clytemnestra to Adultery thereby got her concurrence to the death of her Husband Agamemnon And Sejanus having received an affront from Drusus plotted no other way to destroy him but by corrupting his Wife as saith Tacit. Annal. lib. 4. Cuncta tentanti promptissimum visum ad uxorem ejus Liviam convertere hanc ut amore incensus Adulterio pellexit ad conjugii spem consortium Regni necem mariti impulit So the Brother of Lewis the First King of Hungary was strangled by his Wife and she married a new Husband Lewis the King goeth into Italy to revenge his Brother's death she and the new Husband fly to the Pope who protects them Here neither the corruption of Clytemnestra nor the Wife of Drusus nor the Hungarian Hang-woman could have been discovered before a publick Judge till it had been too late What are therefore such Elccesiastical Laws and Judges who compel such secret and deadly Enemies to Co-habitation in one House but accessary to their Murders and who forbid them to marry others but accessary to the great sins of their Fornications and Adulteries Divorce by consent Authent Col. 23.140 The Title of the Law is Vt consensu Matrimonium solvi potest And the Law it self ends with this Reason Eos siquidem qui violento affectu odioque correpti fuerunt perquam difficile est reconâ—iliare contingit enim ut ex his nonnulli ad mutuas insidias procederent venenisque aliis quibusdam quae lethalia essent uterentur in tantum ut saepe liberi qui ipsis communiter nati essent eas in unam candemque voluntatem conjungere non potuerint Of the Law of Divorce à Mensa Thoro. Haddon in the new draught appointed in the times of Henry the Eighth and Edward the Sixth for Reformation of Ecclesiastical Laws expresly abolisheth Divorce à Mensa Thoro in these words Mensae societas Thori solebat incertis Criminibus adimi Conjugibus salvo tamen inter illos reliquo Matrimonii jure quae constitutio cùm à Sacris literis aliena sit maximam perversitatem habeat malorum sentinam in Matrimonium comportaverit illud Authoritate nostra totum aboliri placet To prohibit Divorce à vinculo matrimoni for adultery or other Lawful cause and to prohibit the same to be done privately between the parties themselves without drawing the cause to publick Tribunals is to contradict Christ himself who speaks of a private Divorce by a Bill both from the Husband and the Wife according to Moses's Law and not a publick Sentence of any Judge and by the exception of uncleanness allowed the Innocent party to marry another but the Pope's Law which prohibits it doth it to no other end then to get the gains to his Courts by the Jurisdiction of Divorces and to compel the parties either to make use of his Stews whence he gathers his common Rents or to pay him a private Taxa Camerae for such Women as he will allow when he hath tied him from his Wife by the Divorce Neither doth Christ take the private Jurisdiction from the Husband or Wife of Divorce given by Moses but only prohibits to use it without a Lawful cause In the same manner did the Laws of the Romans allow the same Jurisdiction both to the Husband and the Wife as appears by many examples By the Law of Scotland Divorce for Adultery is allowed à vinculo matrimonii and the parties may marry again But by the Laws of England the parties can neither be Divorced à vinculo matrimonii nor marry again which is touched by Craig Feud 269. Apud Anglos Matrimonium ob Adulterium non dirimatur sed tantùm separatio à Thoro Tabula permittitur which is certainly clean contrary to the Law of God and the Doctrine of Christ Notwithstanding which our Episcopal Canons rather follow the Pope then Christ and are so outragiously oppressive on Innocent parties Can. 4.7 that in all such Divorces they order Bond and Sureties to be given not to marry again during each other's life which is as before shewen a Doctrine of Devils forbidding to marry where God hath not forbidden Of the Custom of Protestants marrying with Papists There is no Religion in the World established by any wife Legislator which he desires to perpetuate but the chief means he takes care of to effect the same is by his Law to prohibit his followers to marry with Women of another Religion for they both seduce the Fathers and the Children And while even in their Nursing and before they have learnt their Mother-tongue they will with their Milk be so far season'd with Old-wives Fables as the greatest Doctors of truth will not often-times be able all their life after to get out again Moses as to this is very strict and positive Deut. 7.3 Where speaking of the Idolatrous Nations of the Land saith Neither shalt thou make Marriages with them thy Daughter thou shalt not give unto his Son nor his Daughter shalt thou take unto thy Son for they will turn away thy Son from following me that 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
Judicial Proceeding he sits amongst the Barristers and Attornies like an Ass amongst Apes he knows not when Disputes of the Cause ought to be permitted nor when they are to be restrained then lest he should restrain the necessary he lets loose the unnecessary and casts the Reins on the Pleaders necks to run whither they will and on every Trisle multiplies Delays and as the same Author further says p. 610. Vt nunc Status Judiciorum nostrorum habet viginti interdum Triginta dilationes Dari solent eaeque ex causis plerumque levissimis nec ad Prâ—bandum solum sed ad Excipiendum replicandum duplicandum triplicandum c. Sed conclusa Disputatione Judex etiam trium vel quatuor interdum plurium annorum Dilationem sibi sumit ad pronunciandum c. nâ—que ii qui reformandis Judiciis praeficiuntur tam Crassos Errores perspiâ—iunt sed si perspiciunt defendere tamen quà m Emendare malunt Vereor itaque ne juris peritorum eundem quem Clericorum Authoritas Exitum sit habitura As now the state of our Judicial Proceeding stands it useth to give Twenty sometimes Thirty Dilations and those on meer Toys and not only for Probation by Witnesses but to Except Duply Triply Quadruply c. As likewise when the Disputations are concluded a Judg will delay Three Four or more Years before he will pronounce Sentence neither do those who are set to preside in Judicial Proceeding see so gross Errors and though they do yet had they rather defend than amend them I fear therefore lest the Lawyers come to the same end which the Popish Judges and Clerks their Predecessors in their Courts did It is certain the Soldiers in the late Troubles were so much enraged that they would have cut all their Fictions and Formalities to pieces if any would have prescribed them a Form of Proceeding which should be intelligible to them Now all these Delays rise from Disputes or pretence of cause of them and all Disputes at Common Law rise from Formalities and how can it be otherwise seeing the Writs on which all Judicial Proceedings are founded are nothing but Formalities and all Demurs and Disputes relate only to the Gist of the Writ or the Form of the Declaration or Plea which are Relative to the Writ and there can be never any Demurrer or Dispute at Common Law on the Writ of the Merits of the Cause which though one Form of Writ will not bear another may and all Equity on which the true merit of all Causes depends is clean Excluded out of all Common Law Courts because to Judg by Formalities is more profitable and raises more Contentions than the Merit or Equity of the Cause 4. It is to be Observed how contradictory these Formalities are to themselves and one another as in the Case of Colour before mention'd a meer unintelligible piece of Non-Sense for what is more insensible than a Lie or Fiction yet will they force the Defendant to this Lie and not to plead the General Issue of Not Guilty not allow him to plead a Special Issue according to his Case as a Formality whereby they take the Cause from the Jury to themselves at their Arbitrary pleasure so as unintelligibly and Arbitrarily in all other Cases they compell poor men to take or leave the General Issue at their Fancy for Formalities so uncertain as they themselves often contradict themselves and sometimes they are all divided what Plea shall amount to the General Issue and what not or what ought to be given in Evidence on the General Issue or what ought to be pleaded specially and not given in Evidence on it and frequently spend the whole Term in unnecessary long tedious and costly Arguments de Lana Caprina on Demurrers on both when if they would give but a Formulary directive and not coercive how they would have men plead men were permitted but to speak the Truth of their Case in such Words and Language as their own Sense and Reason which God hath given to that end prompts them according to the same and where it fitted not their Case to wave it all this were saved and the merits of so many good Causes miserably destroyed for so petty and pitiful insensible Formalities preserved Coke Com. 282. acknowledges that by one mistake of giving matters of Justification in Evidence on the General Issue of Not Guilty the loss of most Causes depends yet would he and others keep it up still to what end none can tell unless to keep the same Piâ— open that so many more Causes might continue perpetually to be lost in it for the gain of Practicers pleading to Juries before whom it being matter of Fact they ought not by Law be suffer'd to speak And this Rule of not giving in Evidence but pleading on the Issue Not Guilty they will force the same man in one end of the same Room to plead his Justification and not give the same Evidence and in the other end of the Room to give it in Evidence and not plead his Justification As in a Trespass for Battery at an Assizes If at the Nisi Prius he will plead Not Guilty and give his Justification in Evidence That he beat the Plaintiff in his own defence he loses all And if at the Crown-side he who hath beaten and kill'd a Robber or Thief in defence of his own Life on the High-way or of his House by Night plead his Justification and will not say Not Guilty and give it in Evidence be he never so Innocent he loses all and well he may when he is to be Judged by those who contradict themselves and are not able in their Fictions to follow that necessary Rule Oportet mendacem esse memorem and forget at one end of the Hall the Formality they Commanded or Prohibited at the other 5. The Fifth Observable may be how great a prejudice and danger it must be to the People to be forced to put all their Estates on the hazâ—rd of such Forms as the Judges themselves understand not nor can agree about but are in perpetual Contention and Contest for one with another and the vast charge they must be at to maintain these Disputes to destroy themselves which would not be if Formalities were taken away and only the merit of the Cause examin'd in Judgment Most Noble Fitzherbert the first Flower of Judges which ever sprung in Westminster-Hall we may thank God for thee from Generation to Generation who first didst dare with the Sword of Justice oppose the whole World of Enemies to Truth and to give the monstrâ— us Romish Hydra of Formality and the Devil himself the Father of Lies and Fictions that wound in Judicial Proceedings whereof they shall never be cured 2. The Plaintiff especially if a Poor man is Condemn'd without Hearing by being compell'd to begin his Suits by the Purchase of Original Writs and so likewise the Defendant This excludes the Plaintiffs of the Poor out of
cùm vix esset dare causam quin ratione peccati possit deferri ad Ecclesiam Object 3 Stat. Merton gives them no Jurisdiction It 's alledged That it appears by the Statute of Merton that Henry the Third writ in his time to the Bishop to certifie Marriage and Bastardy First It is to be understood therefore that in the time of Pope Alexander the Third Anno Dom. 1160. which was Anno 6. H. 2. in whose time all Matrimonial Causes beonged to the King's Courts This Constitution was made That Children born before Solemnization of Matrimony where Matrimony followed should be as Legitimate to inherit to their Ancestors as those that were born after Matrimony It is likewise further to be known that King John the Father of Henry the Third who made this Statute of Merton following was by the then Pope Innocent Excommunicated King John Excommunicated as likewise at the same time was the Emperor Otho and the whole Kingdom of England Interdicted and so remained for the space of Six Years Three Months and Fourteen Days during all which time there was no Church open for Marriages or Burials but the poorer People were buried like Dogs in Ditches and where they married God knows Through which King John was driven to such distress by his own Bishops and Barons and the French assisting the Pope against him that he was forced before he could get to be released of this Excommunication to pay the Pope vast Sums of Money and to lay down his Crown and Scepter Mantle Sword and Ring the Ensigns of his Royalty at the feet of Pandolphus the Pope's Legat and submit himself to the Mercy and Judgment of the Church Two Days some write Six it was before the Legat restored him to his Crown which he likewise received again on no better Terms then to hold the Kingdom of England and Lordship of Ireland from the See of Rome at the Annual Tribute of a Thousand Marks Silver and the Excommunication was not to be taken off but deferred till further and full satisfaction was made to the Clergy which was not done till Two Years after The Bishops being hereby arrived at so great an height of their Tyrannical Power over this King The Bishops usurped the exercise of Ecclesistical Laws by force over their Kings As that when the King having obtained absolution had gather'd a great Army to have been revenged on the French King the Arch-Bishop of Canterbury told him 't was against his Oath at his Absolution and the King in a great passion reply'd He would not defer the Business for his pleasure seeing Lay-judgment appertained not to him the Arch-Bishop presumed to threaten his native Soveraign that unless he desisted he would Excommunicate him Note therefore That in the time of H. 3. who was the Eldest Son of King John the Bishops continued to assume the Power of Lay-judments as well in Marriages as they did of shutting up of Churches in which they were made from the Pope to whom they had inforced King John to surrender his Crown and not from the King 's Writ as that Statute of Merton shews rather a proud Renunciation and scorn to answer the King 's Writ concerning Marriage then any use permitted by them to the King of the same unless he would as his Father had done lay down again his Crown to them and have Marriage judg'd according to the Law of the Pope for otherwise they tell him plainly They neither will nor can answer his Writ as appears by the Statute it self the words whereof follow 20 H. 3. Cap. 9. To the King 's Writ of Bastardy Whether one being born before Matrimony may Inherit in like manner as he that is born after Matrimony All the Bishops answer'd That they would not nor could not answer to it because it was directly against the common Order of the Church that is meant the Romish Church And all the Bishops instanted the Lords that they would consent that all such as were born afore Matrimony should be Legitimated as well as they who were born within Matrimony as to the succession of Inheritance for so much as the Church accepteth such for Legitimate And all the Earls and Barons answer'd with one voice That they would not change the Laws of the Realm which hitherto have been used and approved Coke 2 part Inst 97. It is said Though the Bishops are Spiritual Persons yet in case of general Bastardy when the King writes to them to certifie who is lawful Heir to any Lands or other Inheritances they ought to certifie according to the Law and Custom of England and not according to the Roman Canons and Constitutions yet if they do make their Certificate according to the Canon Law No remedy against Bishops making Certificates contrary to the King's Laws General Bastardy uâ—urped by Bishops not given them by Law and not the Law of the Land there appears no Remedy unless such a one as is worse then the Disease Sir Galfred le Scrope Cheif Justice saith Before this Statute of Merton the Party pleaded not general Bastardy but that he was born out of Espousals and the Bishop ought to certifie whether he were born before Espousals or not and according to that Certificate to proceed to Judgment according to the Law of the Land And the Prelates answered That they could not nor would not to this Writ answer and therefore ever since special Bastardy viz. that the Defendant c. was born before Espousals hath been Try'd in the King's Courts and general Bastardy in the Bishops Court and herewith agree out old Books and the constant Opinion of the Judges ever since Coke 2 part Inst 99. It being before granted That the Law of England cannot be changed but by an Act of Parliament and Magna Charta being before made and being a Declaration of the ancient Common Law First That no Freeman was to be put out of his Free-hold or Inheritance but per legale Judicium parium and there being no cause of its own Nature more Temporal or more concerning Succession to Temporal Inheritance then Marriage It was contrary to Magna Charta and the Common Law to judg the Fact of it by any other Judges then Juries and the Law of it by any other Judges then those of Temporal Courts and though the Pope and Bishops in those Superstitious times forced the Kings many times as they did King John to yeild his Crown and the Subjects to yeild their Marriages and other Temporal Rights to their Arbitrary and Saleable Sentence for fear of Excommunication yet doth not this any way prove that the Jurisdiction of Marriage was ever granted them by any Law or Act of Parliament or could be without it were contrary to a known Common Law and Act of Parliament which expressly gave the trial of Temporal Rights and Inheritances to a Legale Judicium parium and not to any Ecclesiastical Judges or Laws Now therefore it being clear they had
into the Children of the Husband if he is within the four Seas at time of their begetting and of no probation admitted to the contrary A further descant on the words of Littleton and Coke concerning Transubstantiation of the Children of Parents within the four Seas A relation of a Souldier in the late Civil-Wars who at his return home found two of his Wives Children transubstantiated into his Of the Law of Intails on Marriage and the mischeifs of them Of the Barbarous Law of Illegitimation or making Children incapable to succeed to the Goods of their own Parents and the excellent Law of the Emperor Anastasius abolishing the same and the repeal of the Emperor's Law by the Strumpet Theodora and succeeding Popes and Bishops That the unlawful Marriage of Parents ought not to illegitimate the Children to succeed to their Goods A further touch on Intails Sacrament of Marriage CAlvin lib. 4. cap. 19. Speaks thus of the Popish Sacrament of Marriage At ne simpliciter Ecclesiam luderent quam longam Mendaciorum fraudum nequitiarum seriem vim errori attexuerunt Vt dicas nihil aliud quam abominationum latebram quaestisse dum è Matrimonio Sacramentum fecerunt ubi enim id semel obtinuere conjugalium causarum cognitionem ad se traxerunt quippe res Spiritualis non erat profanis judicibus attractanda Tum leges sanxerunt quibus Tyrannidem suam firmarunt sed partim in Deum manifeste impias partim in homines iniquissimas Quales sunt ut conjugia inter adolescentulos parentum injussu contracta firma rataque maneant Ne inter cognatos ad Septimum usque gradum matrimonia sint Legitima quae contracta sint dissolvantur gradus vero ipsos contra gentium omnium jura Mosis quoque politiam confingunt Ne viro qui adulteram repudiaverit alteram inducere liceat Ne spirituales cognati Matrimonio copulentur Ne à Septuagesima ad Octavas Paschae tribus Hebdomadis ante Natalem Johannis ab Adventu ad Epiphaniam nuptia Celebrentur similes innumerae quas recensere longum fueritex Eorum caeno aliquando emergendum est in quo jam diutius haesit oratio quà m animus ferebat aliquantulum tamen mihi profecisse videor quod Leoninum pellem istis asinis quadam ex parte detraxi They thought it too little to delude the Church simply but what a long chain of Deceits and Wickednesses have they knit on to this one Error that you may say they sought nothing else in their making Marriage a Sacrament Sacrament of Marriage but a lurking hole for their Abominations for as soon as they got that granted they drew to themselves the jurisdiction of all Matrimonial Causes pretending forsooth that Spiritual things were not to be handled before profane Judges Next they fell to making of Laws to confirm their Tyranny in part manifestly impious towards God and partly most injust as to Men Such as are these That Contracts of Marriage between Minors for this is to be intended of verbal Contracts only should be firm and valid without assent of Parents That Marriages contracted between Cousins to the Seventh degree should be unlawful and if any were Contracted should be dissolved and they likewise feigned Degrees contrary to the Law of Nations and Policy of Moses That it should not be lawful for a Man who Divorceth his Wife for Adultery to marry another That Spiritual Kindred should not marry That it should not be lawful to marry from Septuagesima to the Octaves of Easter and three Weeks before the Nativity of John Baptist and from Advent to Epiphany and innumerable others the like which were too long to recite for I must at length get out of their filthy mire in which my Feet have stuck longer then my mind could well-brook yet I hope to have got to my self so much good as that I have in some part pull'd the Lion's skin from these Asses The making Marriage a Sacrament came from the old Pagan Priests of Rome who persuaded the people to draw the gains of Sacrifice and Sacraments to themselves that no Marriage could be happy unless they were Contracted by the Priests with Sacrifices to the Gods and Sacramenta ignis aquae for which reason the Priest sprinkled them with his Holy Water of this Sacrament and made them touch Water and Fire provided by the Priest to that purpose and if any of these Ceremonies were omitted whereby the Preist lost his gain then were the Marriage called nuptiae innuptiae or in the Pope's Canonical Language null and void That Marriage is a Sacrament the Bishops and common Lawyers deny in Words but acknowledg and confess in their Works for the Bishops continue still to usurp the same Jurisdiction of Marriage which the Popish Bishops never pretended to but as a Sacrament and the Common Lawyers continue still the mystery of Transubstantiation which the old Popish Lawyers never did pretend to otherwise then as the effect of a Sacrament Of the profound Popery of the Common Lawyers in Transubstantiation of two persons into one person and the mischeifs thereof I shall not need to answer any place of Scripture making the Husband and the Wife but one Person Transubstantiation of two persons into one person for there is not one word in the whole Scripture which affirms a Man and his Wife to be one person or if it were it must be a figurative and not a natural person If it be objected That they are called one Body or one Flesh I say the same words are said of an Harlot 1 Cor. 6.16 Know ye not that he which is joined to an Harlot is one Body for two saith he shall be one flesh Yet was never any Divine or Lawyer I have met with so absurd as to infer from hence That the Harlot and her Mate are one person or that they are transubstantiated into one another but remain two distinct Substances as they were before much less that the Harlot hath no propriety in her Goods and that every Customer she hath may rob her Shop take all her Goods and beat her and she have no Action or Remedy against him or if she catch a Chouse in her snare that she and her Complices may rob strip sell him to the Barbado's and he shall not be allowed to sue her before the Magistrate because he and she are in Scripture call'd one flesh In like manner may be said of the foppery of Sacramental Transubstantiations of the Bread into the Body or one Body into another or making many persons in Society or Communion one person because the Scripture calls them one Body as it is said 1 Cor. 10.16 The bread which we break is it not the Communion of the Body of Christ For we being many are one Bread and one Body for we are all partakers of that one Bread This is intended a figurative but not a natural Body and it were very ridiculous to make allusions
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-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
intent that one Family might not by Marriage Gifts rob another always married in the same Family and Brothers and Sisters married making that Religion to marry in the Family which others made Incest and that Incest to marry out of the Family which others made Religion Portions and Jointures both to be limited This indeed secured all within the Family but there are many more Lawful ways before mention'd and amongst the rest the making all such Gifts forasmuch as is Super-alimentary void or at least to limit them by a Law That all Portions and Tenancies by Courtesie above the value of 0000 shall be void and all Jointures Dowers and Thirds above the value of 0000 shall be void A Satyr against Mercenary Marriage CVrsed the Female was or Male Who first did Beauty set to Sale For Love did then loose both his Eyes When Gifts and Gold did blind the wise And Venus which did shine on high From Heaven fell into a Stie Priapus then the God unclean Thereon his Temple built obscene And set the Steeple up and Spire That he might share both Whores and Hire And Sextons set to keep the Keys That none might enter without Fees And Cryer next to Curse and Ban Vnless well paid Woman and Man And Paritor about to ride With Bag for Money by his side All Women unto Court to bring Who did not Wed with a Gold-Ring Then Fathers left their Babes forlorn Who had no Licence to be born And Mothers fled Oh heavy Doom Because they were not called home Then Priests to make them greater Whores Fetter'd Fifteens to Fourscores And married dead to those alive Mâ—zentius Torment to revive Mouths bound to Mouths were Eyes to Eyes With Breasts to Breasts and Thighs to Thighs When Pralats in fine Linnen jetting Of Reverend Fathers own begetting Their Babes of Grace oh pretty things Made often Heirs to Peers and Kings This Palls and Miters first made shine And Missions to be Divine Thus Love and Hate together Yoak't The Hangman Priest together choak't And for the Murders clayms a Fee To his unholy holy See The Ambidextrous Lawyer enters And takes a share with his Indentures Lawyer nor Priest nor Book nor Bell Would have did they not Women Sell. If Money her or me must buy Loves Pedlars I you all defy Money did Solomon beguile 1 King 11.5 His first black Wife to setch from Nile And her because he lov'd not best With Thousand Wives to be opprest This was beginning of the Trick The wise turn'd after Lunatick The Goddess Astaroth to please Astaroth was the Moon Milcom was Priapus Who Ruled the Sidonian Seas And Milcom he the foul delight Adored of the Ammonite This Protestants made Papists Wed And fight and scratch in the same Bed Faith and Religion both Divine Lie Victims at Pecunia 's Shrine Of the Law giving Jurisdiction of the secret Causes of Divorce between Parents and secret Vncleanness of Children in their Parents Houses to publick Tribunals contrary to the Law of God It will be Objected How should those Sins of Carnal Uncleanness be punished if not brought before a publick Judge 'T is Answer'd Far better than by him First It not denied but publick Fornication and Adultery where there are Witnesses belong to publick Justice to punish as where Diogenes lay with a Woman in midst of the Market or as Leo Afer mentions where a Mahumetan Prophet lay with another man's Wife at a publick Bath in sight of a multitude of By-standers It is not denied likewise but Bawds Panders Stews Brothel-Houses where are Witnesses are and ought to be severely punished by the publick Magistrate But the Question is of such Fornication and Adultery which are generally so secret as none but the Parties themselves can witness against themselves these appear expresly by the Scripture it self that they belong neither to Priest nor Magistrate to judg or punish but only to God for it is said Deut. 29.29 Secret things belong unto the Lord our God but those things which are revealed belong unto us and our Children And Heb. 13.4 Marriage is honourable in all and the Bed undefiled but Whoremongers and Adulterers God shall judg It is not said man shall judg of secret sins but God And Deut. 17.6 It is said At the mouth of two Witnesses or three Witnesses shall he that is worthy of death be put to death but at the mouth of one Witness he shall not be put to death And 19.15 One Witness shall not rise up against a man for any Iniquity or for any sin in any sin that he sinneth at the mouth of two Witnesses or at the mouth of three Witnesses shall the matter be established And 1 Tim. 5.19 Against an Elder receive not an Accusation but before two or three Witnesses And there is very great reason that man should not presume to usurp on the Jurisdiction of God in things secret especially in these and other offences of uncleanness For First This many times indangers the lives of innocent Parties how many Joseph's how many Athanasiusse's how many Susanna's have been falsly accused How far from the Law of God or Justice Justices of Peace ought not to receive accusations of Fornication on the single Testimony of a leud Woman is therefore the proceedings of Ecclesiastical Courts and many Justices of Peace who without any other Witness then so incompetent a one as a leud Woman who is the Party and gains by it charge and punish men for Bastardy and Fornication and contrary to Magna Charta the Petition of Right and all the Fundamental Laws of the Land made for preservation of the Liberty and Propriety of the People the one by causing Excommunicatos Capiendo's the other by Warrants send whom they will to Goal and Imprison them at their pleasure And how far again from the Law of God or Justice is the compelling men for these Crimes to self-accusation when they can get no Witnesses as they ought to have Secondly Publick Inquisitions and Punishments of these Crimes of uncleanness do more corrupt then reform both Judg and People For the Judg example may be taken from Auricular Confessors who under pretence of injoining Penance to others learn to be above all others the most debauch'd themselves and as to the People it is either a licencing or incouragement to all such as are rich who for a little Commutation-Money buy the Pope's Pardon or what is equivalent the Bishops or the Kirks or if they will not suffer them to Commute the People when they see the Nobles in the Stools of Repentance will think it an honour to follow them and besides for People to hear or see the publick Examinations and Stories of uncleanness in publick Courts they oftentimes do but learn more wickedness then ever they knew or thought of before and are less corrupted at a Play-House then such a Scene of Justice All this is far better punished in every private Family between the Parents if there be
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
by Ceremonies and not by Circumstances Of the manifold mischiefs from the Judgment of Marriage by the Ceremonies of a Priest and a Temple 192 1. It compels to enter into an indissoluble Obligation before the Parties can know each other whether they are sit for Marriage or no. 193 2. It give the Bishop the Monopoly of all Women and their Goods 196 3. It gives him the Monopoly of Successions both in private Families and Kingdoms 197 4. It gives him power to Judg of Marriage Filiation and Succession by Fictions ib. 5. It causeth in the Rich Excess and Vanity of Apparel Tilting Turneaments Masking Gluttony Riot and Drunkenness 198 6. It undoeth the Poor in their Marriages 199 7. It causeth Immodesty in Brides wanton Songs and Ceremonies promiscuous Dancing and corruption of Youth 200 8. It exposeth to publick view what God hath commanded to be secret 201 9. It causeth Community of Women Community of Children Fornication Adultery Stews Brothels and the dissemination of most contegious and deadly Diseases amongst the people ib. 10. It hath caused Prostitution of Brides to Priests Lords Guests and others 205 11. It hath caused Consecration of Incest Whores Sodomites to attend the Service of the Priests and the Temples ib. 12. It hath caused the Consecration and Adoration of Priapus Baal Peor Venus Adonis Flora and the first defiling of the Virgin World with Whoredom and Idolatry 207 13. It first destroyed in the World the Omnipresential Worship of God 208 Prayers in Temples and Synagogues except amongst persons agreed prohibited by Christ and why A Poem on the Omnipresential Worship of God and therein of Marriages in Temples 223 15. It caused the bloody Sacrifices of Virgins Children and Indian Wives 229 16. It lays punishments on lawful Child births and destroys Millions of Infants 234 17. It caused the Parisian Massacre wherein were an Hundred Thousand Protestants slain 240 Why the Ottoman Emperors Marry not by a Priest or in a Temple and of the bloody Murders ensued of the Sons of Solyman the Magnificent by his breaking the Custom and his being drawn by Roxolana to Marry her by a Priest 245 12. Bishops proceed to Judgment in the unknown Language of Law Latine 254 13. They Judg for Fees where of the inconveniences following maintenance of Judges and Officers by Fees and not by Satary Exceptions against Bishops being Judges in reference to the Executive Power 1. They begin the Suit with Execution 263 2. They Pledg before Summons Summon before Copy Copy before Oath Punish before Contumacy Judg before Hearing and Arrest before Judgment all which preposteration begins with Execution 268 Of the Inconveniences ensue by Quorums or more Judges than one in a Court 276 A Satyr against the cruel Preposterations above mention'd both in Ecclesiastical and Temporal Courts Of Summons to answer before a Copy given of what is required to be answer'd 286 Of giving a Copy before an Oath of no Calumny 288 Of the multitude of Fictions and Falsities ensue in Chancery and Common Law by neglecting the Oath of no Calumny ib. ad 305 Of Judgment before Hearing Part of a Satyr translated out of Seneca p. 685. on the settish Emperor Claudius who used to Sentence before Hearing 305 An enumeration of divers Forms of Judicial Proceeding wherein People are Condemned before Hearing 1. By repelling men from the Truth and merit of the Cause and compelling them to make their allegations in Formalities and Fictions 306 A Dispute between two famous Judges Fitzherbert and Brook 14 H. 8.25 concerning Truth and Good Sentence and Formality and Fiction in Judicial Proceeding 306 2. By compelling to Original Writs at Common Law and not serving the Party with a Copy of the Declaration without them 312 Mischiefs of Original Writs 313 3. By compelling to the Writ of Subpoena in Chancery and not serving the Party with a Copy of the Bill without it Mischiefs of Writs of Subpoena 4 By the Capias ut lagatum and Excommunicato capiendo A Satyr on a Papist and a Protestant Imprison'd one on an Outlawry the other on an Excommunication against Imprisonment before Hearing and Judgment 329 A Digression concerning the danger of the Three Kingdoms Condemning one another without Hearing by reason of the Non-Union of their three Parliaments in one House Of the Fatal Dangers attending a Non-Union and the inestimable Benefits of the contrary 335 Of matters requisite to perfect an Union An Elegy on the ill effects of Excommunication of Protestants by Protestants causing a Disunion in the late unhappy Civil Wars 343 5. By Excommunication it self The Form of the Jewish Excommunication 345 The Form of the Greek Excommunication against Thieves 347 The Form of the Popes Excommunication against Queen Elizabeth All Forms of Excommunication wicked and Anti-Christian 348 Of the strange Cheats and Superstition in Excommunications 352 Of the damnable mischiefs arise to Christian Princes and States by tollerating Popes or Prelates to Excommunicate without a Sign of Mission from God 362 All Excommunication Curses and Deliveries to Satan by Bishops or Priests without a Sign of Mission from God if Malefice follow ought to be punish'd as Witchcraft if not as a Cheat. 381 A Satyr in defiance of all Excommunication without a Sign of Mission from God 388 An Epode on Protestants Excommunicated by Papists Considerations concerning a True and False Test between Papist and Protestant 6. By Bishops condemning Protestants of Heresie by the Four first General Councils The other Exceptions against Judicial Forms and what was intended concerning the other Competitor-Judges I am enforced to break off abruptly by Disturbances at the Press Lib. II. Of the Judg of Marriage Filiation Aliment and Succession CHAP. I. Of the Five Competitors to be Judges of Marriage Filiation Aliment and Succession 1. The Bishop 2. The Magistrate 3. The Soldiers 4. The Parents 5. The King and Parliament HAving before shewn unanswerable exceptions against the Ecclesiastical Laws by which Bishops pretend to judg I shall now propose exceptions Declinatory of the Authority and Jurisdiction usurped by them and likewise of their Personal disabilities and incapacities to be Judges of the matters in question all which are 1. In reference to the Legislative 2. The Judicial 3. The Executive or Military Power all usurped or abused by them Exceptions against Bishops being Judges in reference to the Legislative They assume to be Judges Jure Divino without a Sign of Mission from God which overthrows the Legislative Power of King and Parliament For they assume to be Angels and Messengers of God Embassadors of Christ and Successors by his last Will and Testament of the whole Power of Judgment given to the Son yet do they shew no sign of Mission from God no letters of Credence from Christ nor any letters of Probat that they were nominated either Executors or Legatees in any such Testament or in the Testament of any Executor or Apostle of Christ or in the Testament of any Executor of such Executors
Part. Fol. 584. saith And here is to be observed how the Statute of 35. E. 1. hath been dealt with since the 17th of E. 3. for in an Act that Year a branch of the Statute of 35. E. 1. was recited That forbad any thing should be attempted or brought into the Realm which should tend to blemish the King's Prerogative or in prejudice of his Lords and Commons which is now wholy omitted and Fol. 585. he saith Note in the Roll of Parliament of the Statute of 38. E. 3. Cap. 1. of Provisors there are more sharp and biting words against the Pope then in Print a Mystery often in use but not to be known of all men from which examples it is manifest that this came by the Fraud of the Bishops who before Printing were Masters of the Authentick Copies of the Laws appointed for promulgation and since Printing are Masters of the Press to interdict and publish what they will Accipe nunc horum insidias Crimine ab uno Disce omnes These few Frauds are discover'd in Print against the Interdictors of Printers which discovery they would likewise have interdicted if they had been able for these latter Books of my Lord Coke were prohibited to be Printed and got out in the late time of Troubles but by these it is clear which were only spoken obiter and without any inquisition after them that all they are guilty of are not discover'd and that to give either Spiritual or Temporal Judges Power to interdict the Press is to give them Power to have what Law what Gospel what Text what Translation what Canonical what Apocryphal what Scripture what Act of Parliament what Common Law what Statute what Religion what Justice what Liberty and what Slavery they please Besides which Power of Fraud and Forgery destructive to all Truth these further mischeifs follow all interdictions of the Press but I shall first answer such Objections as are made against the Liberty of it Object 1 First If Liberty of the Press should be permitted Enemies would have it equal with Friends Papists with Protestants Hereticks with Orthodox Secondly They would Print Blasphemy Idolatry Treason Rebellion Vncleanness Calumny Reviling Derision and all manner of Heresie Answ 1 To the First is answer'd 1. That it is impossible to exclude Enemies and Papists from Printing they being possess'd of so many Transmarine Presses whence they can with far greater advantage vent their matters then from any Presses in England 2. Admit they could be excluded yet in prudence they ought not but are more necessary to be admitted then Friends for those whom we use to call Friends are pessimum inimicorum genus Adulantes the worst kind of Enemies Flatterers who flatter and sooth us up in our Vices and destroy us but any truth of our Faults we shall never hear but from Enemies Plutarch therefore calls an Enemy a School-Master which costs us nothing 2. As to the matters of Blasphemy Idolatry or Uncleanness neither Enemy or Friend will so far dishonour themselves or their Cause as to Print them openly for it is against their interest As to Treason or Rebellion who that hath an Enemy doth not desire to know before-hand wherein the strength of his Cause as well as of his Forces lies and to have the War Proclaimed in Print before it begin that he may the better provide against Besides if there were but a Law made that nothing shall be printed without the names of the Author and Printer with their Additions and Designations And that all Crimes against the publick committed by Printing should be punished by Indictment according to Law and all injuries to private persons should be reparable by the parties injured on their Actions according to Damage Who would dare make himself guilty of a publick Crime or private Injury in Print to which he had set his name 3. As to matters of Heresie such as by accident become dangerous to public safety the prudence of the Legislators may where they find cause prohibit them both Press and Pulpit but not in the Thoughts and Consciences of Men As in the end of the Wars of Germany between the Lutherans and Catholicks it was Enacted mutually on both sides on pain of death That no Catholick should Preach against the Lutheran Doctrine or Lutheran against the Catholick but both should enjoy the liberty of their own Consciences to themselves This agreement was here made otherwise those bloody Wars would never have ended without a total destruction of one of the Parties And likewise such a Law were here much more necessary between dissentient Protestants who were Brethren then it was between the Lutherans and Catholicks who were mortal Enemies That no dissentient Protestant should Print or Preach publickly on any point of Ceremonial dissentiency or other matter not necessary to Salvation except in such matters as are particularly allowed by Supream Authority to exclude Popery there being Field-room enough in the Moral Law of God to exercise gifts in Preaching and matters which have the promise of this life and of that to come and no cause for any to complain who have liberty likewise of Conscience to use what Protestant Ceremonies and Form of Worship they will to themselves though they have not power to compel the Consciences of others who are dissentients But if Protestants are tolerated to Print or Preach against one another this is the thing the Papist would have and knows will in the end make them both a prey to himself But though Protestants ought not to preach one against another yet the juncture of Affairs being not at present in great Britain as before mention'd in Germany and an appearance of War Plotted by the Papist rather to begin than end with the Protestant the Bishops ought not to be suffer'd to interdict either Press or Pulpit to the Protestants against them To come at length to the further mischiefs insuing the Interdiction of the Press any Interdiction of the Press except in Cases before mention'd either to Friend or Enemy is a dishonour to the Protestant Religion as if it dared not suffer it self to be disputed or to meet an Enemy in the open field whereas in truth it is not Protestancy but Episcopacy 'T is not the Moral Law which is the Protestant Law but the Ceremonial which is the Popish Law which dares not encounter the shock of an Enemy And 't is Fiction and not Truth Vice and not Vertue which fears either Press or Pasquil 2. The Foreign Presses being impossible to be interdicted to the Papist if the English are interdicted to the Protestant he is thereby silenced and prohibited to answer the Papist let him preach what he pleaseth 3. By Interdiction the profit of the English Protestant Print-houses will be transported to Foreign Papists which will be a great discouragement to so necessary a Trade in England and prejudice to the Protestant Religion and Policy 4. The Interdiction of the Press will multiply the greater evil
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
Eliz Stowell quatenus de factor fuerunt ad invicem matrimonio ut predicitur copulat ' ab invicem Separand ' divorciand ' fore debere pronunciamus decernimus declaramus Eosque Separamus Divorciamus eisdemque Christopher ' Eliz. licentiam Libertatem ad alia vota convolanda concedimus tribuimus impertimur per hanc Sententiam nostram definitivam sive hoc finale nostrum decretum quam sive quod ferimus promulgamus in hiis Scriptis c. And after the Divorce the said Christopher Kenne Espous'd and took to Wife Elizabeth Beckwith And after Anno 5th Eliz. before certain Commissioners Ecclesiastical the said Elizabeth Beckwith Libelled against the said Christopher Kenne That before the Marriage between them contracted he had Married with Elizabeth Stowell on which process was awarded against Elizabeth Stowell pro interesse And upon due examination of the Cause it was Sentenced That the Marriage between the said Christopher Kenne and Elizabeth Beckwith was lawful and Sentenced them ad Exequenda Conjugalta obsequia c. And that the said Christopher Kenne was never lawfully Espoused unto the said Elizabeth Stowell and after the said Elizabeth Beckwith died after whose death the said Christopher took to Wife the said Florence by whom he had Issue one Daughter and called Elizabeth and died And Anno 36th Eliz. it was found by Office in the County of Sommerset by Force of a Mandamus after the death of the said Christopher Kenne that the said Elizabeth Kenne was his Daughter and Heir who was within Age Viz. of the Age of Ten Months The Queen granted her Wardship to Sir Nicholas Stallenge and the said Florence then his Wife on which the said Martha alledged her self to be Daughter and Heir to the said Christopher Kenne and with her Husband Silvester Williams Exhibited their Bill in the Court of Wards against the said Sir Nicholas and Florence alledging That the said Martha was Daughter and Heir of the Body of the said Elizabeth Stowell his lawful Wife and that they the said Christopher and Elizabeth Stowell at the time of their Marriage in Anno 37. H. 8. were both of them above the Age of Consent and that they Cohabited together Nine or Ten Years before the said supposed Divorce during which Cohabitation the said Martha was procreate between them and therefore pray they may have License to Traverse the said Office To which Bill the said Nicholas and Florence put in their answer and the Plaintiff examined divers Witnesses and before Publication Sir Nicholas dies and thereupon the said Silvester and Martha exhibited a Bill of Reviver against the said Florence and after Martha having Issue Elizabeth the Wife of the now Pl. died after whose death the said Thomas Robertson and Elizabeth his Wife bring a new Bill of Reviver to revive the first Sute in which the Witnesses were examined and this Case was refer'd to Fleming and Coke Chief Justices and Tanfeild Chief Baron and Selverton and Williams Justices and Sing and Altham Barons of the Exchequer If it be asked for what reason was such a Sentence given my Lord Coke nor the rest will neither tie the Bishop nor themselves to shew any for he saith The lawfulness of Marriage belonging originally to be tried in the Ecclesiastical Court if the Ecclesiastical Judg that is the Bishop Sentence a Marriage Null We that is the Judges of the King's Courts ought to give Faith that is implicit Faith to their Sentence as they do to our Judgment whether true or false right or wrong reason or no reason and so he saith Where the original cause of Sute concerning Marriage belongs to the Common Law Courts the Ecclesiastical Judg is to give like Faith to them as 22. E. 4. in Corbets Case which was this Sir Robert Corbet had by Elizabeth his Wife two Sons Robert the Elder and Roger the Younger and dies Robert the Elder being under the Age of Fourteen takes to Wife one Matilda and they dwell together tâ—ll full Age Et habuerunt carnalem copulam cogniti reputati pro viro uxore palam And after the said Robert put off the said Matilda having no Issue by her and Married one Lettice in the life of the said Matilda and hath Issue by her Robert and dies Lettice Preached openly that she was the lawful Wife of Robert and her Son a mulier Roger the Son of Sir Robert Corbet sues in the Spiritual Court to Reverse these Espousals between Robert his Brother and Lettice for which Lettice sues a Prohibition In which Case it was Resolved 1. That if Robert and Matilda had had Issue and had been unjustly Divorced and after Robert had Married Lettice and had Issue and died that as long as the unjust Divorce had continued the Issue of Matilda could have had no remedy at Common Law the same gives so great Faith to the Sentence of the Bishop 2. That here Roger might sue at Common Law notwithstanding the second Marriage in regard the same was void being made while the first Wife lived On which may be noted the injustice of the Bishops being above Appeal in Judgment in these particulars 1. Here is a lawful Matirmony Consummate by the Birth of a Child and two Persons thereby indissolubly joined together by the Act and Law of God put asunder by the Bishop and his Papal Law Here is a Dispute from Generation to Generation concerning the Validity of a Marriage and Succession to an Inheritance Against the Marriage is alledged That the same was declared void by a Sentence of Divorce or rather of Nullity given by the Bishop Against it is answered by Elizabeth a Descendent of the said Marriage and the right Heir to the Inheritance that the cause of the said Sentence was false And she offer'd to prove that the said Christopher Kenne and Elizabeth Stowell were both above the Age of Consent to Marriage in Anno 37. H. 8. and were then lawfully Married and Cohabited together Nine or Ten Years and the said Martha was lawfully Procreate between them before the pretended Divorce was made Was there ever Probation more Relevant tender'd was there ever better Reason alledged by a poor Lady to defend her Inheritance On this Hoskins Bacon Dodridge and other Council Argued so long from Term to Term as was enough to spend a good Portion before it was got But alas to no purpose for had this Elizabeth been Queen Elizabeth her self these Judges will give no Relief or Hearing against a Bishops Sentence unless his Lordship will please to Revoke it himself And notwithstanding all Arguments to the contrary it was accordingly resolved by all the Justices and Barons That she must go without her Inheritance and her Mother Martha remain a Bastard till the Bishop who made her so should again unmake her which was in plain English to adjudg there should be no Appeal in any case of Marriage Filiation Aliment or Succession from the Bishops to
to express his unnaturall Villany both heard and saw by a Travers from the other side of the Tent But was so far from being moved with Compassion that thinking it long till he were dispatched with a most Terrible and cruel Voice he rated the Villaines enured to Blood saying will you never dispatch that I bid you Will you never make an end of this Traitor for whom I have not Rested one night these ten years in quiet which horrible commanding Speeches yet thundring in their Ears those Butchering Mutes threw the Poor Innocent Prince upon the Ground and with the help of the Eunuchs forcibly drawing the knitted Bow-string both ways by the Commandment of a most wicked Father strangled him With like Barbarous Cruelty he shortly after caused Mahomet his Nephew Mustapha his Son to be strangled also This unnatural and strange Murther committed he presently Commanded the Bassa of Amasia Mustapha's Lieutenant to be apprehended and his head in his own presence to be struck off which done he sent for Trihanger yet Ignorant of all that was happened and in sporting wise as if he had done a thing worth Commendations bid him go meet his Brother Mustapha which thing Trihanger with a merry and chearful Countenance hasted to do as one glad of his Brother's Coming But assoon as he came unto the place where he saw his Brother lying dead upon the Ground strangled it is not to be spoken how he was in mind tormented He was scarcely come to the place where this Detestable Murther was Committed when his Father sent unto certain of his Servants to offer unto him all Mustapha's Treasure Horses Servants Jewels Tents and withal the Government of the Province Amasia But Trihanger filled with extream heaviness for the unmerciful Death of his well beloved Brother spake unto them in this sort Ah Wicked and Ungodly Cain Traitor I may not say Father take thou now the Treasure Horses the Servants the Jewels and the Province of Mustapha How come it into thy Wicked Cruel and Savage Breast so ungratiously and contrary to all Humanity I will not say the Reverence of thy own Blood to kill thy Worthy Warlike and Noble Son the Mirrour of Courtesie and Prince of Greatest hope the like of whom the Othoman Family never yet had nor never shall I will therefore my self provide that thou nor none for thee shall never hereafter in such sort shamefully Triumph over such a Poor Wretch as I am And having thus much said Stab'd himself with his own Dagger in the Body whereof he in short time dyed which so soon as it came to the Old Tygers Ears it is hard to say how much he grieved His dead Body was by his Fathers Commandment carryed from Aleppo in Syria to Constantinople and afterwards Honorably buried on the other side of the Haven at Pera. Hence appear the two great benefis the Ottoman Emperors receive from not medling at all with the Priest either in Coronations or Marriages but as to the first rather wear no Crown at all and are content with a Turbant than receive it from them or their Unctions and for their Marriages take what Wife they like in Private without them or their Solemnities For first the sparing a Coronation and likewise the Solemnity of any Marriage which cannot avoid if publick by a Priest the forementioned Excesses of Apparrel Tilting Turneaments Masking Gluttony Riot Drunkenness Dowers and Gifts on the Coronations and Marriages of so great Princes saves him a Vast some of Money to his Private Treasure and what is a greater benefit than the other secures his Supremacy against the Ecclesiastical Mufties and Caliphs who can make no pretence to depose him or take from him or his Successors that Government which they never gave him nor he would receive from them or his Sons from their Unctions or Certificates 12. They proceed to Judgment in the unknown language of Law-Latine That the Romish Bishops and Priests were the first who brought Latine into Churches and compelled the People to Pray to God in any Language they understand not I suppose none will doubt and I cannot think any will oppose but grant these likewise were the first who brought the same Barbarous Latin both into the Spiritual and Temporal Courts they themselves being at first the chief Judges and Clerks of both It will not likewise be denyed that William the Norman was the first who brought in his Barbarous French to this Nation and if we consider no further than that the Authors of these two Languages were Forrein Enemies and Papists I see no Reason any Protestant Divines or Lawyers have except filthy Lucre to be so fond of them as to continue such Exotick Gibberish to be not the least corruptions of our Religion and Justice and snares of Liberty and Propriety and somtimes of Life it self The final causes therfore which induce these uncouth and crabbed Languages and Characters both of Court and Chancery hands have been and are very wicked 1. One cause for which the Roman and likewise the Norman who was the others Ape put the Forms of Judicial proceeding into unknown Languages was to intrap the People Bak. Hist 27. 2. It hath been continued by Judges and Officers of Courts to Monopolize the Trade of Law 3. That Ignoramus and Dulman who had not been at Shool long enough to learn true Latine might write half Words and Dashes which the Country Men might not be able to understand and laugh at Scribe cum Dasho bene est 4. That motions at Bar and demurrers and arguments in Law may multiply and cut out the more Work for Counsel for often times many a Term is spent in Babling about the pedigree of a false Latine word Coin'd by Dulman to derive it as high as a Radix which grew in Babel and when they have done that as great a Task they have to make it agree with his Anglicè whereby all the Cost and many a good Cause is lost because the Clerk could neither Latine nor English right 5. But when there is a Mis-prision or Mis-pleader by reason of a Language the Clerk understands not what a World of money will it cost his poor Client to get an Amendment for him of one or Repleader of the other The best Counsel in the Town must be Retain'd and they must spend at least a twelve month from Term to Term before they can be all heard Pro Con to repeat over all the Acts of Parliament since Magna Charta and all the Rotulo's in such a Hillary and such a Michaelmas Term. And all the Bundles in Ragman-Bag and all the Records in the Tower to the amazement of the Poor Countryman who keeps Twitching them by the Sleeves and Crying out like him in Martial Non de vi neque caede nec veneno Sed lis est mihi de tribus capellis Vicini queror has abesse furto Hoc Judex sibi postulat probari Tu Cannas Mithridaticumque bellum Et
Men to the height whom he himself if an Enemy appears in his Year is to lead in Person against him 8. The greater the number of Judges the greater the delay in the Proceedings 9. The greater number of Judges the more difficult to obtain Remedy against those of them who Judg wrong for they conceal their names as the Lords of the Session of Scotland being Fifteen and sometimes Eighteen compel the President to sign their Sentence in his name A. B. I. P. C. that is in praesentia Curiae though it be contrary to his Vote whereby it is as impossible to discover who gave the wrong Sentence as 't is in a Jury who gave the wrong Verdict deliver'd by the Mouth of their Foreman So in Athens the Court of the Areopagites were in number Twelve and they gave their Sentence into a Balloting Box by Black Beans and White Beans whereby it was impossible to know who gave the unjust Sâ—ntence on which Plutarch mentions a passage of Alcibiades who being sent for home out of Sicily to Athens to be question'd for his Life Fugam fecit and being askt by one saying Wilt thou not trust thy own Countrey who begat thee to be thy Judg No quoth he nor her who brought me forth lest she being Ignorant and not conceiving the Truth mistake a Black Bean for a White Amongst oâ—hers was the Custom to do it with Black and White Stones as Ovid Mos erat Antiquis niveis atrisque lapillis His damnare reos illis absolvere culpa They Sentenced with Stones of Black and White That know thou mightst not who Judged Wrong or Right 10. The Appeal must be to double the number as from a Jury of Twelve to a Jury of Four and Twenty which makes double the danger amongst so many they all concealing their Names in giving their Verdict as well as the first Jury 11. When a Jurisdiction is divided to two Judges which might have been exercised by one by the Interfereing of the divided Jurisdictions a man is pull'd to pieces to pay Tribute for the same Cause to both as between the Chancery and the Common Law Courts between the Kings-Bench and Common-Pleas one on Indictment of Trespass the other for Action of Trespass for the same offence so between the Common Law Courts and the Episcopal Courts a man is not only put to double Costs but is twice punish'd for the same offence and all Jurisdictions in the hands of several Judges will interfere except such as are divided by Territory and no other respect as the Jurisdiction of one County-Court is divided from another by Territory the County Palaâ—ines from the Westminster Courts by the Territory bounding them the Admiralty from the Common Law Courts by the Territory cover'd with the Sea 12. Where one Judg is sufficient to perform the Office of many with greater Expedition and Justice a multitude of Judges must be then a vast Charge to the Publick and a Prejudice as if to Justice the Romans had appointed Twelve Judges for every Province where one alone discharged the same it had been enough to have exhausted the Treasure of an Empire it is manifest that but three Judges only iâ— Westminster one in the Kings-Bench the other in the Common-Pleas and the third in the Exchequer let them have but the Jurisdiction of Fact Law and Equity as they ought to have may with as exact Justice and greater Expedition than now is done discharge all the Offices of the Twelve Judges of the Kings-Bench Common-Pleas and Exchequer save the labour of the Prerogative Court of Arches Court of Audience Court of Faculties Court of Peculiars Consistory Courts Court of the Arch-Deacon or his Commissary the Court of Delegates and all Episcopal Courts and Offices and likewise save the Labour and Charge of a distinct Chancery and of all original Writs and of all Commissions of Rebellion and of all Outlawries of all the intolerable Slavery of Sheriffs in making Pannels and of Free-holders serving in Juries and of Nisi Priuses and of Councels speaking to matters of Fact before Juries And that three Judges are sufficient to do this and many matters more I speak by experience for there were but four English Judges sent into Scotland and sometimes there were but three and sometimes but two there the other serving in Parliaments as they fell out and occasion required and we discharged all the Offices of Lords of the Session Lords of the Exchequer and of the Justitiar General in his Justice-Eir and in his particular Justice-Courts which did answer all the Offices and Power of the Judges in Westminster of the Chancery Kings-Bench Common-Pleas and Exchequer and of the Justices of Gaol-Delivery in their Circuit and besides these we Discharged the Commission for Plantation of Kirks through all Scotland and were Visitors of the Universities there were Judges likewise of the Seisures of all Ships except English Importing any Goods of the Production of Asia Africa America or Europe contrary to an Act made 1651. Cap. 22. for Increase of Shipping and encouragement of Navigation we likewise Discharged a Commission of Claims and a Commission for moderating the Fines laid on Persons who had been in Hostility to a Third part we likewise Discharged a Commission to Elect all Chief Officers in the Boroughs and made all the Sheriffs of Scotland yet had we not above Six Hundred Pound per Annum for all this and about Two Hundred Pounds to bear the Charge of a Circuit which was no profit to us but spent in entertainments for the Publick Honour neither did we take any Present Treat or Entertainment from the Sheriffs though of our own making and much less any Bribe or so much as Esculenta or Poculenta from them or any other now that which made it possible to us to Discharge so many Courts Offices and Commissions was that we were saved the labour of having Causes tossed and tumbled from Chancery to Common Law the Chancery and Common Law being there united and Pleas of Equity admitted in the same Court and there being no Juries in Civil Actions the same Persons were Judges of Fact Law and Equity another cause was that there were no Original Writs but the more compendious and just way of Summons used by serving the Defendant with a Copy of the Declaration another cause was that Councel could not speak to matter of Fact in Civil Actions before Juries or at Nisi Priuses there being none nor was so much as one of them suffer'd to speak or appear at the Bar when the Depositions of Witnesses are Advising or Reading as they do with us at Chancery-Hearings to the intolerable charge of Suitors and destruction of Justice and Equity another cause was that the Councel first excepted to the Law which we call a Demurrer and after that to the Fact which we call a Plea and had that liberty given both to demur and plead which kept the way so clear before them that they had never
Pernitiosa not to preserve Children but to destroy them and not only those of Subjects but of their Prince though not captived in War yet exiled by War No Digression to father on Bishops the Fictions and Preposterations of Common Law as well as Spiritual Judges by which it was impossible to use the Episcopal Ceremonies of Common Prayer-Books in Marriage or without danger of his Life to Marry otherwise than by the Moral Law of God And let it not seem here a Digression that I am enforced to Father on Romish Bishops not only all the pernitious Fictions and Preposterations in Judicial Proceedings of Spiritual but likewise of Temporal Courts and to make it part of the Exception against them That they are not fit Judges of Marriage Filiation Aliment and Succession 1. Because Romish Bishops as is already shewn were the Formers of all the Common Law Writs in the Register and Forms of Judicial Proceedings in the Book of Entries and the Compile of the Common Laws was trusted to Britton a Bishop as well as the Forms of the Citations Libells Litiscontestations Compurgations Excommunications and Provincial Laws and Canons were to other Bishops and the Bishops have been the chief Judges in the Common Law Courts of Westminster and Chancellors in the Chancery and have rid the Circuit with the Earls in the Countries and after them with the Sheriffs which Earls and other Lay-Judges in time of Popery were only Assessors or Executioners of the Sentence of the Bishop and he only the pretended infallible Oracle both of Law and Gospel to Judg how he pleased 2. Because what is a good exception against a Common Law Judg is a good exception against a Spiritual Judg and what Fiction is a good exception against Succession by the Verdict of the Jury is a good exception against Succession by the Certificate of a Bishop 3. Because by a kind of Conspiracy between the Spiritual and Common Law Courts in time of Popery their Preposterations Fictions and Formalities are so complex'd and intangled one with another that 't is impossible to divide them or carry on a perfect Discourse of one without the other or of Preposteration without Fiction and Formality the one being commonly cause of the other 4. It is necessary to prevent any Excuse the Spiritual Judg may pretend if he should say The Common Law Judg is suffer'd to Summon and Arrest before Copy to Copy before Oath of Calumny and to use Hundreds of Fictions and Falsities in his Judicial Proceedings and why should not the Spiritual Judg be allowed as well as he but where they are both censured they can neither recriminate And how guilty they both are of nursing that viperous brood of the old Serpent who have eaten through the Bowels of Justice may appear by the particulars following The Subpoena in Chancery is a Writ or Summons formed by the Bishops themselves when Chancellors wherein notwithstanding the Holy Catholick Fathers formed as many Lies as Lines 1. It begins as West hath it Proceeding in Chancery p. 183. Jacobus Dei gratia Angliae Scotiae Franciae Hiberniae Rex Fidei Defensor Fictions and Falsities fomented in all Forms of Judicial Proceedings Subpana's full of Fictions c. A. C. salutem Quibusdam certis de causis coram nobis in Cancel ' nostra propositis This is not true for though here and in other Nations anciently Princes sat in their Courts of Judicature in Person 't is not so now neither are any Causes proposed coram nobis before the King in Person unless as some presume they will attribute the incomprehensible Attribute of Omnipresence to Humanity neither is it sufficient to reply that he is present there by his Delegate for a Delegate is only where the Prince is absent or will not himself receive the Complaint which is signified by the words of Absalom 2 Sam. 15.3 See thy matters are good and right for there is no man deputed of the King to hear thee Intimating if there had been a Judg Deputed he needed not fear the Kings presence to have his matters so severely weighed as if he had Judged in Person And we see to avoid the Fiction of Human Omnipresence in an Action of Debt returnable in the Common Pleas where the King sat not in Person but Judged by Delegates the Sheriff is commanded Sum ' per bonos Sum ' praedictum A quod sit coram Justitiariis nostris apud Westmonasterium and if it had been Coram Nobis it would have been a Fiction but that which makes the Certis de Causis coram nobis in Cancel ' nostra propositis not only a Fiction but a gross Falsity is that the Complainant hath taken out his Subpoena before he hath any Bill presented either to the King in Person or the Chancellor or the meanest Clerk in the Court It goes on and say Tibi praecipimus firmiter injungentes quod omnibus aliis praetermissis excusatione quacunque cessante Yet ought the Defendant to be admitted to offer a lawful cause of Excuse or Essoin Next it says In propria persona tua yet may the Defendant be admitted to appear by Attorney Next Sis coram nobis in dicta Canc ' nostra à die Paschae proxim ' futu◠' in unum Mensem Yet to appear Quarto die post the Return-day is sufficient then ubicunque tunc fuerit ad respond ' super his quae objicientur an Objection cannot be unless there is some allegation first put in by the Defendant any more than an Answer can before some Bill put in by the Plaintiff here is therefore a double Falsity and the Poor Countrey man is fool'd to ride up an Hundred Miles when he never put in a Bill himself to be objected against nor when he with much labour is got to Town weary quarto die post is there any Bill put in against him by the Complainant for him to Answer Then it is further said Et ad faciend ' ulterius recipiend ' quod Curia nostra consideraverit in hac parte yet had neither Party Plaintiff or Defendant a Bill or Answer in Court how can it then be said In hac parte where there is no Party Et hoc Sub poena Centum librarum nullatenus omittatis This is likewise a Menacing Fiction the Chancellor having no Power to impose any Fine or Forfeiture on any Subject of a Farthing Et habeas ibi hoc breve Teste meipso apud Westmonasterium when the King is a Hundred Miles off Westminster 12 die Febr. Anno Regui Domini c. George c. But if the Defendant is a Noble-man then no Subpoena is awarded but a Letter by the Lord Chancellor or Lord-Keeper thus A Note of the Fictions of the Episcopal Form of the Letter in Chancery usually sent to a Noble-man instead of a Subpoena to Answer The Superscription is which first comes to be read and is directed thus To my very good Lord I. L. D. These This
THE Night doth vanish when the Sun appears And from all Clouds the smiling Morning clears Romish Night-Ravens flie ye filthy Fowls And all ye Ceremonial Bats and Owls And Weather-cocks whose painted Feathers strange With every Wind God's Moral Law would change His Law is light the Sun outshines the Torch Which blindly Virgins led to the Church Porch Ye Meadows deck your selves with flowry pride Hear of an Holy Marriage and a Bride Not given by Man but God so great aad wise And by him Married as in Paradise With Beauty bright as Fire but chast and cold As Snow he Crowned her and not with Gold The Issue fair who did not Prophesie Sacred Religion Justice Liberty And Property providing of the best Both Bread and Wine for every Marriage Feast The Morall Law The Ceremonial Law Marriage by the Morall Law of God Vindicated Against all Ceremonial Laws of Popes and Bishops destructive to Filiation Aliment and Succession and the Government of Familyes and Kingdomes The Lord hath been a Witness betweene thee and the Wife of thy youth Mal. 2.14 1680. Linea Recta Proefertur Transversali RELIGION IUSTICE LIBERTY PROPERTY TO THE READER THE Writers both of Nature and Policy agree That the Original of all humane Society was Marriage by which Families were first composed consisting of Men their Wives and Children and after Commonwealths composed of those Families when by the multiplication of Generation they were grown so numerous as to be no longer able to preserve their Religion Liberty Propriety and Lives against one another without some Union of all obnoxious to receive or do Injuries under such Form of Government as was by the whole or major part of the Fathers of Families in their General Conventions of themselves or Representatives Consented and Covenanted for the common Peace and Happiness of all to both which no Constitution of Laws was more necessary than those which concern'd Marriage Filiation Aliment and Succession whereon not only private but publick Peace and War often depended and therefore Marriage being the Ordinance of God and not of Man it was impossible to lay any secure Foundation of the Rights of the same except on the Moral Law of God and no other was long observed either by the Jews or Gentiles than what was as Christ saith from the beginning till to break in pieces the Divine Tables of the same the Devil and the Priest conspired together to set up the Golden Calf of their Ceremonies and that Gods Ordinance should be null and void without them and no probation should be admitted of their performance but the Certificate of the Bishop or High-Priest by which as to matter of Succession to Inheritances and Kingdoms They bound their Kings with Chains and their Nobles with Fetters of Iron God was pleased to make the Contention concerning a Marriage between H. 8. and the Pope the occasion of breaking off some of the Links and of being a beginning of the Protestant Religion and Liberty and I hope he doth now offer the like or a greater occasion of propagating both to the present Age and Posterity and not only to break all the Reliques of the Chains but to file off the Collars themselves whereby the Bishop of Rome and the Provincial Bishops have long so gauled the Necks of Princes and People through all Christendom to the easing of which Burdens I should be glad if thou and so many other more fit than my self would lend your hands but seeing so many seeming to sleep in the midst of so great a danger I hope it ought not to offend if I hereby endeavour to awaken you and to be therein as I ought to be to my Power Your Servant Will. Lawrence THE CONTENTS Of the First Book BY what Law Marriage Filiation Aliment and Succession ought not and ought to be Judged p. 1. Not to be Judged by the Law of Moses or Customes of the Jews p. 2 Not to be Judged by the Laws and Customes of Heathen Nations p. 10 Not to be Judged by the Law Civil Canon or Feudal p. 21 Not to be Judged by the Law of Mahomet p. 26 Not to be Judged by Ecclesiastical Laws p. 31 All Allegations of Coke in behalf of Ecclesiastical Laws answer'd ib. Of the mischiefs ensue from Ecclesiastical Laws p. 43 1. All Ecclesiastical Laws of Marriage were invented by Daemons Pagan Priests or Popes ib. The History of the Devil appearing in the shape of Christ to Dr. d ee and tempting him and his Seer Kelly to Community of Wives p. 45 All prohibition of Marriage or Meat in any Ceremony or Circumstance not prohibited by the Moral Law of God came from the Devil p. 52 2. The Final Causes of all Ecclesiastical Laws of Marriage variant from the Moral Law of God were Lust Covetousness and Ambition of the Priest p. 53 3. They pester the Three Kingdoms with an unnecessary and excessive multitude of Laws p. 57 4. They corrupt the choicest Protestant Wits in their Education with Principles of Popery and Slavery p. 59 5. They introduce divers weights and measures of Justice in the same People ib. 6. They compell the Subjects ad aliud Tribunal than Caesars Judgment Seat ad aliud Examen than per legem terrae ad aliud judicium than legale judicium Parium ib. 7. They expose the Subjects to Circuit of Action Subornation Perjury and to be ground between two Milstones of interferring Jurisdictions Spiritual and Temporal 8. Papal Laws of Marriage are inconsistent with a Protestant Priesthood ib. Not to be Judged by such Laws of England Scotland or Ireland as are Reliques of Popery and contrary to the Law of God Of the Law making Marriage a Sacrament p. 65 Of the profound Popery of the Common Lawyers of Transubstantiation of two Persons into one Person and the mischiefs thereof p. 66 A Note taken at Kings-Bench-Bar of the miraculous Transubstantiation of a Shoulder of Mutton betwixt a Man and his Wife p. 71 Of the Law of Transubstantiation of the Children of the Wife into the Children of the Husband if within the Four Seas and of Intails p. 72 A further descant on the words of Littleton and Coke concerning the same and of Intails on Marriages depending thereon p. 73 75 Of the barbarous Law of Illegitimation or making Children incapable to succeed to the Goods of their Parents the Reformation thereof by the Emperor Anastasius and the Deformation of the same again by the Strumpet Theodora and succeeding Popes and Bishops p. 79 That unlawful Marriages of Parents ought not to Illegitimate their Children p. 80 Illegitimation of Children shews Popes and Bishops worse than Pagans Infidels Beasts Monsters Serpents p. 82 Intails Feminine cut off by Adoption or Institution by the Father of his natural Children Heirs ib. Of the Law of Consensus non Concubitus facit Matrimonium p. 83 Of the Pagan Goddess Juno and the Popish Mother of St. Kentigern both got with Child without a Man p. 85 Of the
Lady Ann of Britain Married to the bare Leg of the Embassador of the Emperor Maximilian p. 86 Of the Lady Pulcheria Sister to Theodosius the Emperor Married to Martianus the Lady Etheldred to two Husbands the Lady Amigunda to the Emperor Henry the Second the Lady Editha to Edward the Confessor the Lady Ann of Cleve to Henry the Eight all Married by Priests but not by their Husband ib. Of the Custom of desertion of Virgins after deslowring p. 88 Of the desertion of the Lady Lucy by Edward the Fourth for the Lady Jane Grey and the infelicity followed thereon to them and their Children ib. Of the like desertion by a Gentleman in Ireland after a Child born p. 89 Of the ancient Form of Marriage-Contracts Se post concubitum in vitam non deserturum now repugnantly turn'd into Verba de presenti Of the Law giving liberty of Temptation to a Minor Married to an Husband after Carnal knowledge to desert him for a Richer p. 91 An example of the same in Scotland ib. Of the Law tempting Women to desert their Husbands by giving them more Alimony than the Interest of their Portions p. 94 Of the Law of Divorce after Procreation of a Child for Precontract or Precopulation without Preprocreation ib. Stat. 3 H. 8. cap. 38. against Precontracts p. 96 Edward the Sixth abused by Papists in his Minority to repeal his Fathers Act against Precontracts p. 98 Of the Law making private Marriage or Carnal-knowledge without publique Witnesses of a verbal Contract Fornication p. 101 Of the Law requiring Witnesses of Marriage and Filiation where both are acknowledged by the Parents and no third Party claims the Father Mother or Child p. 109 Of the Law of Sequestration of a Woman pendente placito Sued by two Corrivals and Sentencing either Man or Woman to be restored in Specie and not in Value ib. Of the Law making all prohibited Marriages Null p. 100 Of the Custom of Superalimentary Gifts in consideration of Carnal knowledge between a Man and a Woman either before or after Marriage p. 113 A Satyr against Merâ—enary Marriage p. 117 Of the Law giving 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 Parties Married though mortal Enemies to Cohabitation Of the Law of Divorce a Mensa Thoro. Not to be Judged by Ceremonial Laws Of the absurd and ridiculous Ceremonies on which Priests would have Marriage Filiation Aliment and Succession to depend p. 127 Marriage Filiation Aliment and Succession ought only to be Judged by the Moral Law of God p. 130 Of the Final causes of Marriage by the Law of God and Nature p. 135 Errata's in Verse LIb. 1. p. 131. line 5. for Moon read Morn p. 135. l. 36. for lease r. cease p. 223. l. 28. for I see r. is with me p. 224. l. 9. for all r. such p. 225. l. 8. for thanks r. there and in the same line after for there r. and l. 39. for lightnings r. lightning p. 228. l. 5. add the word next before the word expel p. 392. l. 11. for who burn would not r. who burn would Lib. 2. p. 239. l. 31. for Mariners r. Mariner l. 36. for why r. who Lib. 3. p. 89. l. 8. for their r. them l. 16. for not babling r. no babling Errata's in Prose COntents to the First Book relating to p. 88. for in vitam r. invitam non deserturum Lib. 1. p. 88. l. 8. add invitam before deserturum p. 90. l. 42. for invitum r. invitam deserturum p. 1. l. 11. for or any Subject r. on any Subject p. 4. l. 28. for Harecloth r. Hayrcloth p. 17. l. 36. for women were divorced r. women did divorce p. 23. l. 21. for Affinity r. Consanguinity p. 43. l. 11. for Canon Law r. Common Law p. 93. l. 27. for Common Law r. Canon Law p. 106. l. 31. for pitty relieve him r. pitty to relieve him p. 110. l. 40. for invitum fore Matrimonium r. Irritum fore Matrimonium p. 132. l. 36. add and shall cleave to his wife p. 180. l. 11. for established r. abolished p. 180. l. 42. for Chancellors of State r. Councellors of State p. 210. l. 20. for Sacrament r. Sacrifice p. 215. l. 28. for Tyrant r. Pyrat p. 282 l. 23. for there were Judges r. and Judges p. 120. l. 1. leave out no l. for Secreta Fori r. Secreta Thori p. 121. l. 25. for false r. and the false p. 121. l. 43. for take off Exequenda officia Matrimonialia r. talk of Exequenda officia Matrimonialia p. 257. l. 30. for thinks r. think l. 27. for that binds r. binds p. 265. l. 17. for Obligatio libelli r. Oblatio libelli Lib. 3. Preface p. 10. l. 1. for Algine r. Algive In the Contents relating to p. 160. for Successor or Male r. Successor Male leaving out or p. 2. l. 16. for ever that be r. Over that be p. 13. l. 10. for wages r. ways p. 188. l. 25. for Basiel r. Baliel In the Index see Bail in line 36. for Canon-Law r. Common-Law OF The Laws of Marriage Filiation Aliment and Succession Lib. I. Of the Two Grand Questions concerning Marriage Filiation Aliment and Succession IT was the saying of one Se benè dividentem velut Deum secuturum And Dichotomy though the most difficult to do is without dispute if well done the most excellent Division and Method wherein any Discourse can proceed or any Subject which made me indeavour though not passibus aequis to follow that way directed by the great Methodist of Art Aristotle or rather the greater director of Nature God himself of whom it may more truly be said In duo divisit quicquid in Orbe suit The whole Question therefore naturally depending on what shall be the Law and who shall be the Judg and all Parts of Argumentation consisting either of Premises or Conclusion all Premises being either Negative or Affirmative I have as to Premises stated the whole Controversie of Marriage Filiation Aliment and Succession Negatively and Affirmatively under these Two great Questions following First By what Law they ought not and by what Law they ought to be judged Secondly By what Judg they ought not and by what Judg they ought to be judged And these two Premises being proved he will be an absurd Logician who denies the Conclusions following from them CHAP. I. Marriage Filiation Aliment and Succession not to be judged by the Law of Moses or Customs of the Jews Divorce DEut. 24.1 It 's said When a man hath taken a Wife and married her and it come to pass that she find no favour in his Eyes because he hath found some Vncleanness in her then let him write a Bill of Divorcement and give it in her hand and send her out of his House And when she is departed out of his House she may go and be another man's Wife
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
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
not to be objected against us because we are not subject to Foraign Laws Again that custom or use of Civil or Canon-Laws or Precedents doth not make Civil or Canon-Law the Law of England appears by the use of Sentences of Philosophers and Poets and Precedents of Historians all as much used in Courts of Records of Courts of Judicature as the Civil or Canon-Law yet doth not this use or custom make these Sentences of Philosophy and Poets and the like to be the Law of England or obligatory to the People of England unless such Sentences of Philosophers and Poets are selected from the rest and inacted or confirmed by Act of Parliament to be hereafter the Laws of England And they are so far otherwise from being Laws of England that Cardinal Woolsey Mich. 21. H. 8. Coram Rege was Indicted That he intended Antiquissimas Angliae Leges penitus subvertere enervare universumque hoc Regnum Angliae ejusdem Regni populum Legibus imperialibus vulgo dictis Legibus Civilibus earundem Legum Canonibus in perpetuum subjugare subducere c Let any shew a sensible reason why the Bishops and Ecclesiastical Judges who actually bring in the whole heap of Civil and Canon Laws to judge of the Marriages Filiation and Succession of the Subjects and amongst them the new coin'd Law at the Council of Trent made when Forein Jurisdiction was abolish'd and thereby actually deprive him of that invaluable liberty to which every Native Subject is born and is confirmed to him by so many Acts of Parliament And those great Fundamental Acts Magna Charta and the Petition of Right to have his Birth-right tried per legale judicium parium deserve not as high a censure by Parliament as Cardinal Woolsey had who only intended to do the same And if any hath any mind to consult besides the Laws and Precedents against Forein Laws and Precedents Bod. lib. 1. of a Common-wealth fo 107 108. will give him some satisfaction Forein Laws become not the Laws of this Land by being used by Lawyers where he saith It was in most strong Terms judged by a Decree in the Court of Paris in the Case of Philip the Second the French King That be was not bound unto the customs of the Civil Law at such time as they who were next kindred would have redeemed of him the Countrey of Guyens howbeit that many both think and write the Prince to be bound to that Law for that they think that Law to be Common to all Nations and not Common to any City And yet than the which Law the Romans themselves in some Cases thought nothing more unreasonable But our Ancestors would not have even our Subjects bound to the Roman Laws as we see in the Ancient Records that Philip the Fair erecting the Parliament of Paris and Mompelier declared That they should not be bound unto the Roman Laws And in the erection of Universities the Kings have always declared That their purpose was to have the Civil and Canon Laws in them publickly professed and taught to make use thereof at their discretion but not that the Subjects should be any way bound thereto lest they should seem to derogate from the Laws of their own Countrey by advancing the Laws of strangers And for the same cause Alaricus King of the Goths forbad upon pain of death any Man to alledge the Roman Laws contrary to his Decrees and Ordinances which M. Charles du Moulin my Companion and Ornament of all Lawyers mistaking is therefore with him very angry and in reproach calleth him therefore barbarous howbeit that nothing was therein by Alaricus decreed or done but that which every wise Prince would of good right have decreed and done For Subjects will so long both remember and hope for the Government of Strangers as they are Govern'd by their Laws The like Edict there is of King Charles the Fair and an old Decree of the Court of Paris whereby we are expresly forbidden to alledge the Laws of the Romans against the Laws and Customs of our Ancestors Yea the King of Spain also hath upon Capital pain forbidden any Man to alledge the Roman Laws in confirmation of their own Laws as Oldrad writeth And albeit there was nothing in the Laws and Customs of their Country which differ'd from the Roman Laws yet such is the force of that Edict that all men may understand that the Judges in deciding of the Subjects Causes were not bound unto the Roman Laws And therefore much less the Prince himself who thought it a thing dangerous to have his Subjects bound unto strange Laws And worthy he is to be accounted a Traitor that dares to oppose strange Laws and strange Decrees against the Laws of his own Prince In which doings when the Spaniards did too much offend Stephen King of Spain forbad the Roman Laws to be at all taught in Spain as Polycrates writeth Which was more straightly provided for by King Alphonsus the Tenth who commanded the Magistrates and Judges to come unto the Prince himself and as often as there was nothing written in the Laws of their Country concerning the matter in Question Wherein Baldus is mistaken when he writeth the Italians to be bound to the Roman Laws but the French no otherwise than so far as they should seem unto them to agree with Equity and Reason For the one is as little bound as the other howbeit that Italy Spain the Countries of Province Savoy Languedoc and Lyonnois use the Roman Laws more then other People And that Frederick Barbarossa the Emperour caused the Books of the Roman Laws to be published and taught the greatest part whereof have yet no place in Italy and much less in Germany But there is much difference betwixt a Right and a Law for a Right still without command respecteth nothing but that which is good and upright but a Law importeth a Commandment for the Law is nothing else but the Commandment of a Soveraign using of his Soveraign Power Wherefore then as a Soveraign is not bound unto the Laws of the Greeks nor of any other stranger whatsoever he be no more is he bound unto the Roman Laws more then that they are conformable unto the Law of Nature which is the Law whereunto saith Pindarus all Kings and Princes are subject From which we are not to except either the Pope or the Emperour as some pernicious Flaterers do saying That those two viz. the Pope and the Emperour may of Right without cause take unto themselves the Goods of their Subjects Object 5 Forein Laws cannot be baptized with the name of the King's Laws without act of Parliament As to what is mention'd of baptizing Forein Ecclesiastical Laws by the name of the King 's Ecclesiastical Laws of England he seems still to mistake and puts baptizing by the name where it should have been confirmation by the name and that confirmation too to be given not by the Bishops but the
Juvenal Veniet cum signatoribus Auspex and of Ovid Mense malum Maio nubere vulgus ait and they declared to the parties the unlucky Ides Kalends and all the dismal times and days which got the Cheats much money from the foolish people and to continue the same Trade the same was revived by Popes and Councels of Laodicea Iterda and Trent by their prohibitions of Marriage in times of Advent Septuagesima and Rogation Pope Soter made the Law prohibiting Marriage without delivery of the Woman by the Father and receiving a Benediction from the Priest Delivery by the Father and Benediction by the Priest yet Christ saith For this cause shall a man leave father and mother and though a Father may deny to give his Daughter so liberal a Portion if she marry without his consent as he would give with it yet can he not prohibit her to marry and when Rachel said to Jacob Give me children or I die and he in anger replyed Am I God he thereby shews that 't is not the Benediction of the Priest or Pilgrimages to Saints cause fertility or sterility but Children are the gift of God Marriage within the fourth degree Pope Calixtus made the Law prohibiting Marriage within the fourth degree either of Consanguinity or Affinity and others extend the same as well to Spiritual as Carnal kindred The Law prohibiting Marriage without License was first set up by the Priests of Priapus and Venus License to marry And the Priests of Diana her self could no more live without License-money for Marriage then those of Venus which made the Virgins of Greece before they presumed to marry humbly to beg the Goddess's pardon that they left her Nunnery for which they brought good Fees and Offerings to the Priests Power of the Pope translated to the Arch-Bishop of Canterbury The Law of Dispensations Legitimations and Confirmations of Marriages and Children and the whole Papal power therein translated to the Arch-Bishop of Canterbury by 25 H. 8.21 was made by Papists in a time of Popery The Law of Banes was invented by Popes and revived by the late long Parliament Banes and the Laws of New England only translating the Marriage to the Magistrate instead of the Priest Marriage without a Priest or Temple The Law prohibiting marriage without a Priest and a Temple was invented by the Priests of Priapus and Venus and revived by the Pope and Council of Trent In all these Ecclesiastical Laws of Marriage the two Strumpets Theodora of Justinian Strumpets and Theodora of Pope Sergius and that impudent Quean Marozia and other Strumpets of the Popes had a great hand We are like therefore to have excellent Laws in the Bishops Courts and Justice for Marriage Fillation and Succession while the Laws of such Legislators continue All Laws prohibitory of Marriage or Meats came from the Devil Lastly There needed not to those who believe the Scripture this Recital of so many wicked persons to be Authors of this mention'd Ecclesiastical Laws for it is manifest by the Scripture it self that all Laws prohibitory of Marriage or Meats they being things not indifferent but necessary for the preservation of Humane Nature in the least Ceremony or Circumstance where they are not prohibited by the Law of God came from the Devil as appears 1 Tim. 4.1 2 3. Now the Spirit saith expresly That in the latter times some shall depart from the faith giving heed to seducing Spirits and Doctrines of Devils speaking lyes in Hypocrisie having their consciences seared with an hot Iron forbidding to marry and commanding to abstain from meats which God hath created to be received with thanksgiving I conclude therefore that all the fore-mentioned Ecclesiastical Laws prohibiting marriage without their Popish Ceremonies or Circumstances not appointed by God came from the Devil or many Devils The Final causes of the Ecclesiastical Laws concerning Marriage invented by Daemons and the Priests of Priapus and Venus were Lust Covetousness and Ambition of the Priests The second Reason against Ecclesiastical Laws is the wicked ends for which they were invented which were no other but only to satisfie the insatiable Lust Covetousness and Ambition of Priests As to which the Indian Histories mention That in the Kingdom of Molabar neither the King or People are allowed to have a Wife Luft Covetousness Ambition of Priests the only ends of Ecclesiastical Laws of Marriage unless sanctified for him by the first nights Lodging of the holy Bramin who is their Priest which is the reason that there the King's Sons succeed not to the Kingdom but their Sister's Sons for they say they know not the Father but they know the Mother Linschot Little better is done in Catholic Kingdoms often times though not openly yet secretly by those unchristian Bramins the Cardinal Confessors and it is common in Italy for Catholics to jeer one another that their Children are Fils de Prestre The Benyan Indians give their Priests the first fruits of their Wives and think the Marriage will not be blessed without it The Southern Americans in divers parts think it a great Devotion to offer their Daughters to be first defloured by the Priest The Algier Mahometans and the people of other parts of Africa think it a meritorious work to prostitute their Wives to their Morabates or holy Saints whom they esteem their Prophets And Leo Afer who was that Countrey-man tells a story of one of these holy Prophets who came to a Town and espying a handsom Woman being a person of very good quality and great esteem in the Town yet the Prophet took her being at a Bath and lay with her openly in the concourse of a great multitude of people who applauded the Fact as a great honour to the Lady and many of them ran to congratulate her Husband how happy he was to have so holy a Man partner with him in his Wife and when some of the better sort of people whose discretion was a degree above the common superstition of their Religion went and informed the Magistrates of the Town of the foul and shameful act was committed by a Vagabond Prophet and they sent their officers to apprehend him the people rose upon them and would have knockt out the Brains both of Officers and Magistrates had they not speedily desisted Carpenter reporteth from a Monk of Doway That not long ago it was a custom in Biscay a Province in Spain that every Man having married a Wife sent her the first night to the Priest of the Parish which it seems was the Fee due to the Priest for his labour the same day of marrying her in his Temple Carp 193. So it was at the door of the Tabernacle Hophni and Phinehas Sons of the Priest lay with the Women of the congregation 1 Sam. 2.22 To the Temple of Marriage the Popish Priests have of latter times added the Chappel of Ease of Auricular Confession Auricular Confession in a more commodious
Dioccss of L. the Sixth day of August Anno Dom. 1606 Matrimony true pure and lawful Per verba de praesenti according to the form and rites of the Book of Common Prayer of the Church of England between the said A. B. and C. D. was Solemnized by one Mr. A. V. Clerk in the presence of J. J. W. B. W. W. R. M. Witnesses in this part by the said Bishop examin'd and sworn and of other Witnesses then present the said Parties A. B. and C. D. his Wife being of lawful Age and from all other Matrimonial Contracts free clear and clean as the Witnesses so sworn and examined believe This is the Form of Certificate which carries the best Circumstances and Face of a Marriage which can be put on any But the Bishop will give his Certificate as full of a true pure and lawful Matrimony to Coke's Woman with the Adulterous great Belly who lays it down the next day though no Witness will compurgate from other Contracts and transubstantiate as well the Child Adulterous as lawfully begot to be Child of the Husband yet is not this Certificate neither free from fiction and falsity contrary to the Law of God for it is already shewn That it is impossible to make a verbal Contract per verba de praesenti praeterito or futuro matrimonio and that Matrimony cannot be before a Mother nor a Mother before Conception of a Child and that 't is impossible to make a Ceremonial Law of Marriage either of the Church of England or Rome to be the Moral Law of Marriage instituted by God and besides if there were a lawful Marriage there can be no Sequel or Ergo infer'd That the Adulterous Child of the Woman is lawfully begot because the Marriage was lawful or ought to be Successor to the Husband 's Goods because born of the Wife for there can be properly no Adultery nor Adulterous Issue born but within lawful Marriage But Logician beware the Bishop's Certificate and a Law of Transubstantiation alter the case if thy profane Reason will dispute Faith or Episcopal Infallibility in Marriage Filiation and Succession thou wilt be Excommunicated The good Woman hath the same advantage whether she go from her Husband's House or stay there for if the good-man leave her at home and march abroad himself a Soldiering or Merchandizing if still it be within the four Seas and his Stock increase and multiply at home the while more then abroad he must not be so ill natur'd as not to bear the charg of his better Factress then himself During the late Civil Wars A Souldier finding his Wives Children transubstantiated into his I was credibly informed of a Soldier who left his Wife at home with one Child and was for divers Years so long out in Service that before he returned home again his Wife had two more to increase his number at length he returned home to the Town where he dwelt and the Neighbours as soon as they understood it went in shew to welcome him home but withal to see how he would like the increase of his Children in his absence where after they had sat a while he appeared very kind to his Wife and very fond of his Child which he had left at home at his departure supposing the other to have been some Children of the Neighbours who were come in to play with his 'till a while after seeing those Children by his Fire-side to draw closer to his Wife then strangers use to do he asked Whose the Children were the Wife and answer'd him Thine whereat he was much amazed and demanded how that could be seeing he had not been at home so many Years The Wife replyed thou might'st have stayed at home then and got them thy self if thou would'st so there being no other Answer to be got the poor man was glad to take up this new Bag and Baggage when he thought to have rested For the fiction of Legitimation dared give the Truth of the Soldier the Lie to his face yet he knew not whom to send a Challenge or a Duel to In no better case had he been had he in the Service of his King and Country lost his life in a fight at Sea if within the four Seas what he had got with his own Blood must have gone to an Adulterous Blood at the pleasure of his Wife and the Certificate of the Bishop Of the Law of Intails on Marriage and the mischiefs insuing by them Law of Intails causeth Adulteries and disinherits true Heirs It is before shewen how mischievously the true Heirs are dis-inherited and destroyed by Intails to two Bodies and by Littleton Coke and the Bishops fictions on the same who in despight of Truth Religion Sence and Reason God and Nature will have the Adulterous issue of the Woman preferred before the true and lawful Children of the Man in Succession to the Man's inheritance I shall likewise here touch some other few but fatal mischiefs which the Chains and Fetters of Estates by Intails to two Bodies on Marriages whether these Intails are made by the Pontificial or Temporal Laws do cause for it is to be noted that the Laws of Theodora and the Popes which Enact That no Children shall be capable of Succession to the Father but where the Father and Mother were contracted by a Priest in a Temple is an Intailing of the Inheritance of the Man to the Heirs of the Body of the Woman and an excluding of the Heirs of the Man if she prove adulterous So there cannot properly be said to be any Fee-simple in England No Fee-simple in England for Fee-simple it self is by the Popish Law Intailed to the Heirs of the Body of the Woman begotten beget them who will and the Priest who would not therefore be married himself to a Wife lest she should put a cheat on him and bring forth a yâ—ung Lay-man but take a Curtezan put cunningly the Fee-simple cheat on the simple Lay-man and his Fils de prestre too by making a Law That none should be his Heirs unless begotten on the Body of such Woman as he should give him in a Temple Littleton deceived in Fee-simple So Littleton in his Chapter of Fee-simple and his Commentator on him understood not the words his Heirs for every Fee-simple where a Woman is married by a Priest in a Temple is to go to her Heirs of her Body begotten and not to his and let her have as many Heirs as she will begotten by the Adulterer the Husband's Land shall go to her Heirs but let the Husband who is perhaps turned off by the Wife get as many as he will by another Woman none of those shall be his Heirs For which reason in favour of the true and natural Children and that the Father might have power by Act executed in his Life-time to provide for his own especially where he found his Wives Adulterous as Britton fol. 122. saith That the Forms of Deeds of Feoffment
used to deflour the fairest Plebeian Virgins yet by their Law would allow this to be no Marriage nor suffer a Patrician to marry a Plebeian but only to abuse them till the Plebeians rose against them and beat the Patricians into better manners The like raised a Rebellion in Persia and Mutius lib. 22. Chron. Ger. relates That a Rebellion arose amongst the Suisse Vri and under Waldensians because their Nobles and Governours abused to their Lust all their handsome Virgins at pleasure and then cast them off If the greatest Peer get a Beggar with Child the Marriage is indissoluble Whereas by the unquestionable Law of God if the greatest Peer lie with a Beggar whom he may lawfully marry and get her with Child he thereby makes her his Wife and though before the birth of the Child she expressly Contract She will take hire and the same shall not be a Marriage or after she give a release yet the Marriage is indissoluble for the Act of God of giving a Child doth confirm and establish it and whom the Act of God hath joined the Act of the Parties or of all human Powers can never lawfully put asunder So as is said one cause of the late Rebellion of the Moors under Gayland was the abusing and desertion of their Virgins by their Courtiers Of the Law giving liberty of Temptation to a Minor married to an Husband after carnal knowledg to desert her Husband and take a richer In Scotland while it was my fortune to be put to sit there as one of the Commissioners for Administration of Justice it happen'd the Earl of B. deceased having left two Daughters Inheritrixes of one of the greatest Estates in that Kingdom both infra Annos nubiles and by Will left their custody and disposing to divers Guardians the Countess of B. his Relict married the Earl of W. And after they two the Earl being the Father in Law and the Countess the Mother disposed of the eldest Daughter being under the Age of Twelve in Marriage with the Son of G. S. as I remember the Sheriff of T. being about the Age of Fourteen being a Gentleman of a very good Family and of the same name of the Family of the Earl of B. deceased who was the Father of the Daughters but not of equal Estate This Marriage was Consummated by the usual publick Ceremonies and by carnal knowledg The Guardians hearing their Pupil married without their consent being very much troubled apply'd themselves to us who had then de facto all the Power Ecclesiastical and Civil both of Bishops and Judges which the Sword could put on us to null the Marriage they alledging their Pupil to be infra Annos nubiles and likewise the Marriage to be made without consent of the Guardians appointed by the Father whereupon Summons were sent to all Parties concern'd to appear and answer the matter before us in the Court at Edinburgh At the day appointed there appear'd the new married Lady all in Silver the Earl of W. the Countess and other Nobles with their Train and as near as I can remember so long since what was spoken between the Parties and the Court were to this effect Earl of W. to the President of the Court My Lord we give appearance to your Summons though I know no reason we should be troubled hither Your Power is unlimited and you do what you please but I hope you will not part Man and Wife Presi Complaint hath been made to us and we shall only examin the truth of the matter and do nothing but Justice therein as we find the same to be and as we ought to do Thereupon the Earl and Countess and all other Parties except the new Married Lady were Order'd to with-draw out of the Room and as the fashion there is on any Consultation by the Court the Doors to be close shut The young Lady seeing her Mother and all her Friends shut out of doors from her and her self detained Prisoner alone within the Bar to be examined by the Court began to be something appal'd but the President comforting and incouraging her she address'd her self to answer what should be demanded Presi Are you married to the young Gentleman mention'd by your Guardians Lady Yes Presi Is it by your free consent or were you compell'd or deceived to do it Lady It is my free consent and I was not compell'd or deceived Presi Were there any other Matches proposed to you besides this and did you see the Men Lady There were others proposed and I saw them but I liked this best Presi Why would you disparage your self to marry one so much beneath you in Degree and Estate Lady It was my Father's will he having no Son that I should marry one of the name of his Family of which name this Gentleman I have married is and I married him that I might preserve the name of my Father's Family according to his will Presi Why would you being so sickly and and weakly as you appear to be marry under the Age of Marriage it 's enough to destroy your health and endanger your life Lady I am more healthy then I was before Presi You are young and your mind may change you shall have other Noble young Persons and fit for your Marriage presented to you and you shall take your choice of them To which the vertuous young Lady deservedly incensed though under the Age of Twelve replyed pretty tartly That she should be then a Whore if she should change her Husband for another Man Thereupon the Lady was Order'd to with draw and the Court on Consultation Order'd That she should be deliver'd to the custody of a Governess in her own House at D. who should admit any other Noble Persons to present themselves unto her as likewise the Husband she had already married but no otherwise then openly in the presence and sight of the Governess and if the Lady liked to make choice before she came to the Age of Twelve of any other to be Husband she should have free liberty to do the same if not then her present choice should stand This Sentence was right if you admit the Common-Law that great Popish Idol which is worship'd through the three Kingdoms to be the Law of God but otherwise 't was an unlawful thing to put a new married Wife who had lain with her Husband and for ought the Court knew might be with Child by him to put her on the Temptation of changing her Husband to take a richer and thereby leave it to the wicked Canon-Law which would have null'd her Marriage to have illegitimated her Child only for that desertion of her Husband to which that wicked Law tempted her but she was more Noble then to entertain such vile thoughts and continued constant to her Husband till her death Of the Law tempting Women to desert their Husbands by giving more Alimony then the Interest of the Portion Another great mischeif is in the Ecclesiastical Laws
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
them cleérly frustrate and dissolved Further also by reason of other Prohibitions then God's Law admitteth for their lucre by that Court invented the dispensation whereof they always reserved to themselves as in kindred or affinity betweén Cousin-germans and so to the fourth degreé carnal knowledge of any of the same kin or affinity before in such outward degreés which else were lawful and be not prohibited by God's-Law and because they would get money by it keep a reputation of their usurped Iurisdiction whereby not only much discord between lawful married persons hath contrary to God's ordinance arisen much debate and suits at Law with wrongful vexation and great damage of the Innocent party hath been procured and many just Marriages brought in doubt and danger of undoing and also many times undone and lawful Heirs disherited whereof there had never else but for his vain-glorious usurpation beén moved any such question since freédom in them was given us by God's Law which ought to be most sure and certain But that notwithstanding marriages have been brought into such an uncertainty thereby that no marriage could be surely knit and bounden but it should lye in either of the parties power and arbiter casting away the fear of God by means and compasses to prove a pre-contract a kindred and alliance or a carnal knowledge to defeat the same and so under the pretence of these allegations afore rehearsed to live all the days of their lives in detestable adultery to the utter destruction of their own Souls and provocation of the terrible wrath of God upon the places where such abominations were used and suffer'd Be it therefore Enacted by the King our Soveraign Lord the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the Authority of the same That from the first day of the Month July next coming in the year of our Lord God 1540. All and every such Marriages as within this Church of England shall be Contracted betweén lawful Persons as by this Act we declare all Persons to be lawful that be not prohibited by God's Law to marry such Marriages being Contract and Solemnized in the face of the Church and Consummate with Bodily knowledge or fruit of Children or Child being had therein betweén the parties so married shall be by Authority of this present Parliament aforesaid Deémed Iudged and taken to be Lawful Good Iust and Indissolvable notwithstanding any pre-contract or pre-contracts of Matrimony not Consummate with Bodily knowledge which either of the parties so married or both shall have made with any other person or persons before the time of Contracting that Marriage which is Solemnized and Consummate or whereof such fruit is ensued or may ensue as afore and notwithstanding any Dispensation Prescription Law or other thing granted or confirmed by Act or otherwise And that no reservation or prohibition God's Law except shall trouble or impeach any Marriage without the Levitical degrees And that no person of what estate degreé or condition soever he or she be shall after the first day of the Month of July aforesaid be admitted to any of the Spiritual Courts within this the King's Realm or any his Graces other Lands and Dominions to any Process or Plea or Allegation contrary to this aforesaid Act. 1. Here it appears what a necessary stroke this Act gave against the usurped power of Ecclesiastical Laws and Jurisdiction in this and other points of Marriage forbidding any Spiritual Courts within this Realm or any his other Lands and Dominions to admit any Process Plea or Allegation contrary to this Act. And although hereby one of the heads of Ecclesiastical Jurisdiction was as is said of the Beasts Rev. 13.3 as it were wounded to death yet so great was the subtilty of the Serpent that the Ecclesiastics soon after by abusing the minority of that most pious though young King Edward the Sixth got all what the wisdom and courage of his Father had Enacted against them repealed by the Son 2 3 Ed. 6. cap. 23. Edward the Sixth abused by Papists in his Minority to repeal his Father's Act of Precontracts And thinking themselves therein not sufficiently secure they again procured the same to be repealed by 1 Eliz. 1. In which repeals I can see nothing but a Papist Plot against them both to revive those Ecclesiastical Laws by their own Authority against themselves which might have yielded most dangerous pretences against their own Legitimations and Marriages and Issue if they had happen'd to have had any For certainly no Marriage or Issue can be secure or certain if any fraudulent person may secretly pre-contract or pre-copulate with any vile person and take Bonds of him or her to release the same upon request and then marry another person Ignorant and Innocent and have Children procreate between them and then cause the party who had the pre-contract or pre-copulation to sue and obtain a Divorce against the Innocent person to be Divorced and Children Bastardized and Disinherited and then to give a release to the party conspiring in the fraud How is it possible to avoid this wickedness if pre-contract or pre-copulation should be allowed a sufficient cause to dissolve Marriage Consummate by the Birth of a Child And how is it possible propriety to be if a distinction be not kept between it and contract and between obligation and possession according to the old Rule of Law Rem Domino vel non Domino vendente duobus in jure est potior traditione prior And the Rule of the Civil Law and fundamental of all Nations who have propriety Obligatio non impedit translationem Dominii sed translatio Dominii praecedens impedit obligationem l. si quidem 1. C. de donat inter virum Notwithstanding all which Reasons preceding and likewise those in the mention'd Act of H. 8. The Ecclesiastics though straining their Wits and Eloquence to the highest in the Act of repeal by Ed. 6. yet cannot alledge the least reason except only this That if pre-contract should not dissolve Marriage the parties might part from one another at the Church door and then the Wedding Dinner would be spoiled which surely may be sufficiently and over satisfied by recompence in value were it a Half-Crown Ordinary But a lost Virginity to an Innocent Woman who was married bona fide and knew nothing of this pre-contract and her Child can never be repaired if the Marriage be dissolved Nulla reparabilis Arte Laesa pudicitia est deperit illa semel Propert. The Act of Repeal of the said most excellent Law of Henry the Eighth against pre-contracts follows 2 3 Ed. 6. cap. 23. 2 3 Ed. 6. cap. 23. WHereas in the 32 year of the Reign of the late King of famous memory King Henry the Eighth Because that many inconveniences had chanced in this Realm by breaking and dissolving of good and lawful Marriages yea whereupon also sometimes Issue and Children had followed under
the Man doth hold his hand by the Priest's hand and the Womans hand by her Husband's hand and all have the Cow by the Tail and then they pour Water out of the Pot on the Cows Tail and it runneth through all their hands and they lave up Water with their hands then the Priest ties them together by the Cloths which done they go round about the Cow and Calf give some Money to the Poor and their Idol and lest the man should think himself married to the Cow and Calf he gives the Cow and Calf to the Priest which is more then they give to the Poor and so they are Man and Wife and whom the Cows Tail hath joined let no Man put asunder which if they do 't were fit the Priest lost his Cow and Calf In Cambaia as Texera reports They have so great esteem of their Cows that a Merchant Banyan spent 10 or 12 Thousand Dukets in the Ceremony of a Nuptial Feast of marrying his Cow to his Friend's Bull for the greater publication of it not suffering it to be private in the Woods and what were the Cow or Calf the better for all this or who could the sooner know whether the Calf were the legitimate Issue of the married Bull or some other in the Woods CHAP. VIII Marriage Filiation Aliment and Succession ought only to be judged by the Moral Law of God THE debate of the lawfulness of the Marriage of Henry the Eighth with Queen Katherine having been his Brother's Wife being in Agitation it happen'd that Cranmer who was after Arch-Bishop and in time of Queen Mary Martyr'd and Dr. Stephens and Dr. Fox met at Waltham one day at Dinner where falling in discourse about the case the other Doctors thought the Marriage might be proved unlawful by the Civil-Law but said Cranmer It may better be proved unlawful by the Law of God And so it may be said here Marriage Filiation and Succession may be better proved as it is in truth lawful or unlawful by the Moral-Law of God then by Laws of Moses of Nations of Emperours of Popes of Bishops of Mahomet of England Scotland Ireland or any human Laws in the whole World First Because the Moral Law is the Law of Nature Secondly Because the Law of Nature is the unquestionable Law of God Thirdly Because it is a perfect Law and comprehends in it all the innumerable Cases which are impossible to be contained in any human writing Fourthly Because it is a Law universally given as well to Gentil as to Jew and no Nation in the World exempted from the Jurisdiction of the Moral-Law Fifthly Because it is a Law immutable and endureth for ever and neither Jew Pope Turk nor any Power in Heaven or Earth except the Legislator himself is able to change it The Jews have an old Tradition That God when he Created the World left a great hole in Heaven that if any other God arrogated the glory of the Creation the true Creator might bid him stop that hole first When a Jew shall stop the hole Left in Heaven near the Pole When the Sun is in a Sack And the Stars turn spots of black When the Moon 's in Mah'met 's sleive And a Priest shall Nature shrieve And her Palace turn a Grange Jew Pope and Turk her Law shall change When the Moon her head shall dress In the Western Wilderness When in Heaven for a Sign Charles his Wain shall cross the Line When the Earth and Water shall Make two Globes and not one Ball. Then Oh then what is more strange Nature 's God her Law shall change Chang'd may Second-Nature be But no Eye shall ever see Highest Nature change from Good Though by us not understood Yea though none him see or know He Eternal Good will do Through all Forms though Nature range Nature 's God will never change It will be ask't perhaps by some In what Tables God hath writ the Law of Nature concerning Marriage Filiation Aliment and Succession and how it may be read To which I Answer That the Tables are of two kinds the External and Internal and the Readers and Witnesses are of two kinds the External and Internal the External Tables of Marriage are express'd by Christ Matth. 19.4 when the Pharisees question of Divorce whether lawful for a man to put away his Wife for every cause He Answer'd and said unto them have ye not read that he which made them at the beginning made them Male and Female The Male and Female are therefore the External and visible Tables wherein God hath written in living Hieroglyphicks or Figurations of the Sexes his Law of Marriage As to External Tables of Filiation Christ expresseth likewise the same Matth. 18.2 And Jesus called a little Child unto him and set him in the midst of them and said Verely I sayunto you Except ye be converted and become as little Children ye shall not enter into the Kingdom of Heaven Whosoever therefore shall humble himself as this little Child the same is greatest in the Kingdom of Heaven And whoso shall receive one such little Child in my name receiveth me But whoso shall offend one of these little ones it were better for him that a Milstone were hanged about his Neck and that he were drowned in the depth of the Sea As to the External Tables of Aliment they are expressed in his own Mother Luke 11.27 Blessed is the Womb that bare thee and the Paps that thou hast sucked The Paps therefore wonderfully prepared to overflow with Milk just against the time the Child is to be born are External Tables wherein God hath written to Innocents in letters as white as Snow that the Mother ought to aliment them with the Milks of her Breasts And when he hath made the Teeth to break through the Coral Gums he writes in those Ivory Tables That the Father ought to provide stronger meat for the Child The Internal Tables are expressed by Paul 2 Cor. 3.3 Written not with Ink but with the Spirit of the living God not in Tables of Stone but in the fleshly Tables of the Heart The External Readers and Witnesses are all Creatures as appears Job 12.7 But ask now the Beasts and they shall teach thee and the Fowls of the Air and they shall tell thee or speak to the Earth and it shall teach thee and the Fishes of the Sea and they shall declare unto thee Go then and ask the Fowls of the Air concerning Marriage Filiation Aliment and Succession they will shew thee their Mateing their Pairing keeping true Wedlock their private retirement to secret places their holes their Caves their Nests they build for their young their Males and Females who procreated them and not the Bishops to be Judges to which they belong their Grand-mother Earth their dry-Nurse the Sea their wet-Nurse Provision for them all their feeding their sucking their young their teaching them when able go to their Grand-mother and take their Diet with her
and such of them as have Propriety in Goods and Chattels Tenements and Haereditaments as Bees Ants and Squirrels leaving as they die their Hives and Honey-Hills and Corn-Holes and Nuts to their Descendents to be their Successors The Internal Readers and Witnesses in Man are the Divine faculties of the Soul Sense and Reason one doth Testifie the Fact the other the Law The Internal Judg of the Probation of both is the Conscience The Laws which they read and testifie are written in the Internal Tables of the Heart Christ expresseth the first concerning Marriage in the foresighted Text Matth. 19.5 For this cause shall a man leave Father and Mother and they two shall be one flesh Concerning Filiation the Law of natural affection which is writ in the heart of the Father is mention'd Psal 103.13 As the Father pittieth his Children so the Lord pittieth them that fear him And the Law of natural affection writ in the heart of the Mother is mention'd Isa 49.15 Can a Woman forget her sucking Child that she should not have compassion on the Son of her Womb As to the Law of Aliment written in the heart of the Father it is mention'd Luke 11.11 If a Son shall ask bread of any of you that is a Father will he give him a stone or if he ask a Fish will he give him a Serpent or if he shall ask an Egg will he offer him a Scorpion Lastly as to the Law of Succession written in the heart of the Father whereby all natural Sons succeeded either to the right of Primogeniture or Filial Portions the same runs through all the examples of Jews in Scripture and of Gentiles in Histories This great Law of Nature is acknowledged to be written in the Tables of the Heart by the Scripture it self Rom. 2.14 The Gentiles who have not the Law do by Nature the things contained in the Law these having not the Law are a Law unto themselves which shew the work of the Law written in their Hearts their Conscience also bearing witness and their thoughts mean while accusing or excusing one another So Rom. 1.26 Paul saith Women did sin against Nature Yet was there no Law of Moses nor any Law written by God or Man in Paper and Ink which particularly prohibited them but only that of Nature And that this Law of Nature can neither be changed nor abolished or dispensed with by any humane power is agreed by Philosophers Poets Divines Common and Civil Lawyers and all others except Popes who exalt themselves above God Christ and Nature and all that is called God Lex Naturae neo tolli neo abrogari potest saith Tul. de leg 205. Dionysius when his Mother being an old Woman desired of him he would get her to be married to a young Man He answer'd Kings might overthrow Civil Laws but could not the Laws of Nature Lex humana derivari debet à lege Dei sed eam perfectè persequi non Potest Aquin. Augustin In humanis Legibus nihil est justum nisi ab aeterna lege dirivatur Honesta turpia natura judicanda sunt Tul. de leg 169.6 Hobart's Reports 120. It is acknowledged that all customs and Acts of Parliament against the Laws of Nature are void for Lex naturae est lex legum the Law of Nature is the Law of God and positive Law if contrary or variant from it is the Law of Man Yelverion Justice said When a new Case comes for which there is no positive Law before we do as the Sophonisis and Civilians resort to the Law of Nature which is the reason and ground of all Laws and of that which is most beneficial for the Common-wealth make a Law quod non negatur 8 E. 4. fo 12. Claudius justly reprehends Tribonian That in compiling the Institutes of the Civil Law he omitted the Law of Nature de Ferraiis 552. But the flattering Courtier had he done so knew he must have prefixed another imperatoriam Majestatem and laid other manner of principles then placitum Principis to be the original of right he could not have then divided Title and Jurisdiction with his Master And Jupiter Proclaiming that Deus est imperator in Coelis Imperator est Deus in Terris 'T is well he claims only the Earth for now the Pope claims not only plenitudinem Terrae but Heaven too to sell to his Customers Yet the Civil Law acknowledges the Law of Nature immutable And this point of Marriage and Succession saith Lege duodecim tabularum benè humano generi prospectum est quae unam consonantiam tam in maribus quà m in foeminis Legitimis in eorum successionibus necnon in liberis observandam esse existimavit nullo discrimine in successionibus habito cum natura utrumque corpus ediderit ut maneat suis vicibus immortale alterum alterius auxilio egeat ut uno semoto alterum corrumpatur sed posteritas dum inimica utitur subtilitate non piam induxit differentiam c. Cod. lib. 6. tit 47. l. lege By the Law of the Twelve Tables it is well provided for Mankind that there should be the same rule of Successions for Males and Females and in Children and no difference to be made in their Successions seeing Nature hath brought forth the Bodies of both that they might continue in their course immortal and one need help of another and one taken away the other might be destroyed But later Ages while they use so much subtilty have made an impious difference c. Which is intended between Males and Females in Succession when Lands are Intailed to Heirs Males By which appears what opinion the Civil Law hath of Successions to such Intails to be impious because contrary to the Law of Nature The Civil Law likewise acknowledgeth that Jura Sanguinis nullo jure Civili dirimi possunt and again it follows the Law of Nature in Legitimation Si mulier quinquagenaria partum ediderit an debet hujusmodi soboles suo patri succedere haereditatem â—jus nancisci à Caesariano advocato interrogati sumus sancimus Licet mirabilis hujusmodi partus inveniatur raro contingat nihil tamen eorum quae probabiliter à natura nascuntur esse producta respui sed omne jus quod ex quacunque Lege liberis praestitum est hoc merum atque immutilatum hujusmodi filiis vel filiabus servari in omnibus succâ—ssionibus sive ex testamento sive ab intestata Et summatim non absimiles aliis fiant in quos similes natura efficit Cod. lib. 6. tit 47. si major A question is proposed us by the Advocate of Caesar if a Woman above fifty bring forth a Child whether such Issue shall be Successor to the Father in the whole inheritance And we Decree though it be an admirable Case and rarely happens yet we ought not to reject any thing known to be probably produced by Nature but all the right which by any Law is given to
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
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
committed to the next of Kin c. The Administration being thus granted to the Mother the Sister by th Father's side doth commence Suit before the Ecclesiastical Judg pretending her self to be next of kin and the Mother not to be kin at all to the party Deceased and therefore desireth the Administration formerly granted the Mother to be revoked and committed to her as next kin to the Deceased by force of the said Statute Hereupon the most Learned as well in the Laws of the Realm as in the Civil Law were consulted and both Common Lawyers and Civilians unanimously declared it to be an Article of their Faith contrary to Scripture and common sence that a Mother was not kin to her Son so Judgment was pass'd against the Mother whereby she lost her Son and her money too perhaps some that she gave him And in those days this precedent did so much prevail that many other Judgments passed accordingly against the Mothers Then in Rama was there a voice heard lamentation and weeping and great mourning Rachel weeping for her Children and would not be comforted because they were not yea weeping it over again Qualis populea maerens Philomela sub umbra Amissos queritur faetus quos durus arator Observans nido implumes detraxit at illa Flet noctes ramoque sedens miserabile carmen Integrat maestis late loca questibus implet Yea our Rachel had twice more cause to weep then Philomel for Philomel wept only because her Children were not but Rachel wept both because hers were not and because she must not be kin to them neither And surely her mourning had continued for ever had not in process of time the Tears of Women and the Beauty of Truth for what is stronger then Truth and women against Popery prevailed in England but could not in Scotland because Skene put it on the Father The Child not the Child of the Mother Natural affection no consideration to raise an Use to a natural Son but good to an Adulterate Son who is not so apt to weep as the Mother that he should be no Sib or Kin to his Son But will you not wonder My Lord Coke will present you with a couple of rarer absurdities if possible then this for he saith lib. 10. in Leonard Loveis his Case fol. 83. That if a Woman have a Bastard which he intends a Child not born of a Ceremonial Marriage that this Child is not in truth but only in reputation her Child And therewith agrees Dyer M. 17. 18. Eliz. fo 345. 12 Eliz. 290. And then he in his Commentaries and the Judges in Plowden's Commentaries agree in Sharington and Pledal's Case That if a Man in consideration of natural affection covenant to stand seized of such a piece of Land to the use of his Son this natural affection is a sufficient consideration to raise an Use as they call it and to vest the Estate in the Son though he were the Son of an Adulterer and not the Son of his reputed Father if his Mother were married by a Priest in a Temple and his reputed Father within the four Seas But if the Son be his true natural Son begotten by himself then the consideration of natural affection to his true Son is no consideration to raise an Use nor to pass the Land to him but the same is void and null In the first Case where there is no ground for natural affection they talk all of nature extolling her above all considerations and cry out Naturae vis maxima and Natura bis maxima and give away the Estate from the true natural Child to the false Child of the Adulterer Then in the latter Case where there is a just and righteous cause of natural affection commanded by God to Men and instincted by him to Beasts to provide for their own There they are void of natural affection their blind Eye of the Law must see the Infernal darkness of Fictions in the Law and be shut against the Sun of Truth They pretend the Law of Nature in their words but in their works omnia naturae contraria legibus ibunt Nothus made the true Son and the true Son made Nothus They will not allow natural affection of the true Father to his true natural Child to be a consideration to raise an Use in so much as one Acre of Land where they will allow it to the true Nothus and Fictitious Child of an Adulterer against whom probatio non admittitur in contrarium sufficient to invest him in the thousands of Acres of Seigniories and Baronies 'T is strange that Men who profess Law and Justice should not be ashamed of so gross and repugnant absurdities and contrary not only to all Law and Justice but common sence and reason Reasons shewing further that Mamzer in the Old Testament and Nothus in the New are falsly translated Bastard Mamzer Alienigena 1. The word Mamzer is by the best Criticks affirmed to signifie naturally and properly Alienigena seu de alienae gentis foemina natus And that Deut. 23.2 ought to be translated Alienigena non introibit and not Spurius non introibit or in English a Bastard shall not enter but the Translation ought to be in English An Alien born shall not enter into the Congregation of the Lord even to his tenth generation shall be not enter So as the Law here as the Laws of most other Nations do doth put a distinction in priviledge between Alien and Denizen born and not between unlawful and lawful born for an Alien is as lawfully born as a Denizen but hath not the same priviledge either as to Religion of entring into the Congregation or of acquiring propriety in the Land either by Purchase or Succession for if that should be permitted there would ensue the derision or corruption of all natural Religions by contrary Nations and the buying of one Nation out of their Land by another Enemy Nation who were richer in mony then they And that the intention as well as the words of the Law was only against Aliens born as appears manifestly by the next Verse in the same Chapter where it is said An Ammonite or a Moabite shall not enter into the Congregation of the Lord which as the verse before spake of Aliens in general speaks next of Aliens in special Ammonites and Moabites who being of kindred to the Israelites might have been doubted whether intended to be excluded under the general word Aliens which this naming them specially clears and likewise clears that it is intended the National and not the getting or birth of Children in private Families And this is manifest by the constant practice of the whole Israelitish Nation who had no such thing as Illegitimation of the Children of any Ebrew Woman but whether the Wives were one or many the Children all Succeeded alike to their natural Parents if the Father did not for any special reason or otherwise expresly
whole People is to be intended only where the Case is reduced to that necessity that either one or other must be but in this there is no necessity Trial should be by Certificate of a Bishop at all and though uno absurdo dato mille sequuntur were there a Thousand inconveniences followed if the Certificate of a Bishop should be question'd for falsity it being first granted it belongs to him to make Certificates yet there is no necessity that absurdity should be first granted that it should belong to him to make Certificates for there are ways enough wherein no Inconveniences follow of Trial of Truth without Certificates of Bishops 2. The supposition is repugnant and impossible that any Case should happen or be shewn in the World wherein Fiction or Falsity ought to be suffer'd in Judicial proceeding or where Probation ought not by the Law of God to be admitted against such Fiction and Falsity notwithstanding the corrupt practice of Courts to the contrary and such suffering of a private mischief of that kind to a private Person is so far from preventing a publick Inconvenience that it will bring both a private and publick mischief and destroy both for it is as impossible to separate Truth from Justice as the Light from the Sun 3. That which is alledged for an inconvenience to the publick That one Bishop would make a Certificate contrary to another this is no more publick inconvenience than if Thieves should fall out and true men come by their Goods 4. As to what is said That the Certificate of the Bishop is in this Case the highest Trial in the Law we must distinguish the Law for it was then the Law of Popery was Predominant which gave Supremacy in Causes of Marriage Filiation and Succession to the Bishops above Kings and to the Sentences in Bishops Courts and made them above Appeal to the Kings Courts and the Foundation of that their Supremacy was That then by that Law Marriage was a Sacrament and Penance was a Sacrament but the Law being now changed from Popish to Protestant and the Supremacy being now given by the Protestant Law to the King above the Bishop as well in Causes Matrimonial as in all other Ecclesiastical Causes and the Protestant Religion taking away the two Popish Sacraments of Marriage and Penance which were the only Roots whence the Episcopal Jurisdiction of Marriage and the incidents to the same pretended to sprout Cessante Causa ratione legis cessat Lex the pretended Causes of the Jurisdiction ceasing the Jurisdiction it self ceases whereby now the Certificate of the Bishop is so far from being the highest Trial that it ought to be no Trial at all for the Sacraments ceasing the Jurisdiction ceaseth and the Jurisdiction ceasing the Power of Trial ought likewise to cease 5. For Councel to advise his Client to maintain a false Certificate of the Bishops knowing it to be false is as wicked as for the Bishop to make a false Certificate knowing it to be false or which is impossible for him to know to be true as all relating to Filiation are it being their own Rule Filiatio non potest probari except by the Parents wherefore ex Ore Suo they condemn themselves of false Judgment and are not therefore fit to be Judges 11. They Judg by Ceremonies and not by Circumstances As to the word Ceremonia some will have it derived à Cerere because they used divers Formalities in the Worship of the Goddess Ceres But this is not proper seeing all the Heathen Gods and Goddesses had as many Formalities in their Worship as she others derive it from Cerete a Latine Town whither as saith Valerius Maximus the Flamen Quirinalis and the Vestal Virgins fled with their Trinkets while the Gauls besieged Rome others derive it à Cereis from Torches and Tapers lighted made of Wax which amongst the old Pagans was a great Ceremony used in the Temples of their Gods and at their Marriages but this is likewise improper and only figurative to take species famosior pro toto genere and not natural so it appears the Etymology of it is either unknown or it is it self an Original not derived from any Rites which is a word usually joined with Ceremonies and much of the same Signification some will have derived à Ritualibus now the Rituales were old Magical and Superstitious Books of the Hetruscan Priests by help of which they either conjur'd their Gods or made the People believe so and they had all the Formalities written in them which were to be used at making Marriages at laying the Foundations of a City and how Altars Temples and Houses were to be Consecrated and how their Courts of Justice and Counties and Hundreds were to be divided for in all these the old Pagans used to Consult their Augurs Aruspices Bishops and Priests and were like our Books of Ecclesiastical Canons But it seems rather these ritual Books had their names derived from the Rites whereof they were made a written Collection and not the Rites from the Rituals and so Rites as well as Ceremonies may be words which none knows whence they came or whether they will But to come from the Etymology of the word Ceremony to the thing usually signified by it and the difference between a Ceremony and a Circumstance it seems A Ceremony is an Act accessary joined to a Principal not affecting the Principal Act with Good or Evil by the Law of God A Circumstance is an Act accessary joined with a Principal affecting the same Principal Act with Good or Evil by the Law of God Ceremonies are infinite but Circumstances are usually drawn to Seven Heads 1. The Cause of doing the Act which is divided into four kinds The Efficient Final Material Formal and these again subdivided into others 2. The Person by or with whom the Act was done 3. The Place where it was done 4. The Time when it was done 5. The Quantity continued or discrete 6. The Quality which is manifold 7. The Seventh and last Circumstance is the Event of the Act the Civilians expound very improperly and instance whether the Act is done by Fear Force Error Deceit Fault Chance or the like for how can these which are precedent Causes of the Act and therefore ought to be refer'd to the Cirstumstance of the Causes be said to be the Event of an Act which is always subsequent and not precedent to the Principal Act and in that sense is always used by the best Latinists as Cicero in Rhetor. Things are often judged from the Event than which there is nothing more unjust and the Poets agree in the same Careat Successibus opto Quisquis ab Eventu facta notanda putat Eventus Belli incertus wherein it is used for the Fortune and Success following the Battel and not the Fortune or Chance which began or occasion'd it So the Common Law in punishing the Event as the death of any Man within a Day or
of Babes and is the true Popish Limbus Puerorum Translated into the Romish Church from Hell according to the Poet Continuo auditae voces vagitus Ingens Infantumque animae flentes in Limine primo Quos Dulcis vitae Exortes ab ubere raptos Abstulit atra dies funere mersit acerbo Virg. Aen.l. 6. And these Papal and Episcopal Destroyers make the Child-bearing Woman justly take up the complaint of her Described Jer. 4.31 I have heard a voice of a Woman in travel and the anguish as of her who bringeth forth her first Child that bewaileth her self that spreadeth her hands saying wo is me now for my Soul is wearyed because of Murderers Surely these Bloody Legislatours must have a Dreadful account who make Laws for their gains to destroy the most Innocent of all Creatures little Children Luk. 17.1.2 Then said be unto his Disciples it is impossible but offences will come but wo unto him through whom they come It were better for him that a Milstone were hanged about his neck and he cast into the Sea than that he should offend one of these little ones O how far in this is the Practice of such as call themselves Christians different from the Doctrine of Christ Matth. 18.2 And Jesus called a little Child unto him and set him in the midst of them and said verily I say unto you except ye be Converted and become as little Children ye shall not enter into the Kingdom of Heaven And vers 6. Whoso receiveth one such little Child in my Name receiveth me But alas how doth this corrupted age receive such a little one They receive him indeed as He Himself was received Matth. 26.55 In that same hour said Jesus to the multitude Are you come out as against a Theif with swords and with staves for to take me But this was not the Receiving he intended of a little one though now amongst those who profess his name no sooner doth God send a Child to be born in a Parish unless the Mother bought a Licence of the Bishop to bear him and bought which none but God can give more than the Child the Benediction of a Priest in the Temple but the whole Multitude presently rise with swords and staves and are all in Arms against a poor naked Infant weeping and wailing as the first tast of his misery to be born into so wicked a World and against the more miserable Mother like the Dam sitting on her Young whom they throw into some Dung-Cart or other filthy Carriage to draw her and her Child out of their bounds and unless she is Rich enough to hire a House of Ten Pounds per annum value they will not suffer her to come into it Oh Prodigious Oppression Oh Antichristian Cruelty What benefit now have the Poor who have not Ten Pounds per annum of the Gospels the whole Land is in Hostility against them they will neither suffer them to enter into their Parishes nor their Churches what benefit have these hundreds of thousands who have not ten Pounds per annum of Magna Charta What of the Petition of Right The Foxes have holes and the Birds of the Air have nests but the Woman with Child like her pursuâ—d with the Dragon Rev. 12.2 Cryed travailing in birth and pained to be delivered Quis talia fando temperet à Lachrymis hath not where to lay her Young her Child unborn by reason of Papal and Episcopal Laws which are the flood of Waters cast out of the mouth of the true Romish Dragon heu miserande puer damnatus antequam natus Hospitals to prevent the Murder of Children not born under Popish Matrimony There are Hospitals in Italy and Spain and many other places of large Revenues to which Mothers who have Children without the Popish Ceremonial Marriage of a Priest in a Temple may by night secretly bring or send their Babes who shall be their Received Alimented and Educated without knowledg or enquiry by Bishops Citations or Justice of Peace's Warrants and there is now one in Paris by the name of l' Hostle pur les Enfantes troves or the Hospital of Infant Fondlings wherein there are now no less than four Thousand But in Great Britain there is not the least Relique of any such Charity but on the Contrary most cruel Laws made to punish Mothers for bringing forth Children the most part of them lawfully joined to men according to the Moral Law of God only on pretence of prohibition by Papal and Episcopal Laws and their Doctrine of Devils contrary to the Law of God whereby they may get Money the wicked Price of Blood and of the Blood of those who are of all other the most Innocent the blood of Infants and are so far from providing Hospitals for Babes when they are born that they will not in England suffer their Mothers to bring them as is already said to an House of their own if not of the Value of above Ten Pounds per Annum and so far from being Fathers to the Fatherless that by their inhuman prosecution of the Punishments of those Cruel Laws against Babes born of Parents not licensed by the Bishop and benedicted by a Priest in a Temple they make thâ— Child for whom God had provided Parents by compelling them to flie from him for fear of their own punishment both Fatherless and Motherless or what is more horrible to be Murder'd by them who would have otherwise as affectionately preserved him as all other Natural Parents and Creatures both Human and Brutish do their Young Oh is it not a sufficient misery for an Infant to be born unless he is likewise pursued to be destroyed by the Cruelty of Ecclesiastical Monsters and hurried from the Womb to the Tomb of their Coemeterial Aceldamas before he knows any thing of Life but Misery if Bishops pity him not let Lucretius do it to their shame though an Atheist Tum porro Puer ut Saevis projectus ab undis Navita Nudus humi jacet Infans indigus omni Vitali Auxilio cum primum in Luminis oras Nixibus ex alveo Matris Natura profundit Vagituque locum Lugubri complet ut aequum est Cui tantum in Vita restat transire malorum Like Shipwrackt Mariners the Child at Birth Cast from Rough Seas lies Naked on the Earth Wanting all Vital help when first from throws Of Mothers Womb Nature doth him disclose He Weeps and Wails not without cause alas Why so much Evil in this Life must pass All Mariages lawful not prohibited by the Moral Law of God All these Murders of Children would cease better than by a Thousand Hospitals if only this wicked Ceremonial Law invented by him who was a Murderer from the beginning forbidding to Marry without a Priest in a Temple were abolished and all Marriage Publick or Private not prohibited by the Moral Law of God and Consummate by the birth of a Child Established to be Sine poena
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
any Delays by Jeofails Repleaders Arrests of Judgment or Writs of Error another cause was that both Parties and Advocates took the Oath of Calumny that they believed their Allegiance just and true Illud juretur quod lis sibi justa videtur which Oath keeps their Allegiances clean from falsity that I never found so much as one Fiction in all their judicial Proceedings and if the same Oath were but taken here as there I believe there would not one Bill in Chancery or Declaration at Common Law come in for Twenty which now are thrust in by heaps many other causes there are which lessen the labour of a Judg and of the Suitors which for Brevity I omit all which shew the Prudence of that Noble Kingdom where the People enjoy so great Justice with so little Cost and Contention Lastly we could have done more Business than we did had we been set to Act as the Roman Judges every one single without Associates in a Court by himself and how great an Addition to the Publick Treasury as well as advantage to Justice the lessening the number of Judges and turning Fees to Salary will cause is already mention'd A Satyr against the Cruel Preposteration of Ecclesiastical and Temporal Courts in Judicial Proceedings contrary to the Precept of Christ Matth. 18.15 AND will you never learn the skill Which first Subpoena is or Bill Or foremost know with all your wit If Declaration is or writ Or which precede should in your Tale The Capias or Original You which is best who make a pause To Sentence first or hear the Cause With Execution who begin Before a Judgment or a Sin Who grinde and eat the Poor distrest With Tongue and Teeth of Romish Beast For Grace in Anglice's who curse The Rent was bad the Patch is worse Who have no Summons but Surprize Who have no Laws but Treacheries Do you not know there is a Cry Gone up against your Cruelty The Prince himself of Righteousness So foul Oppressions to suppress Descended hath on Earthly Globe And glorious Dy'd his Scarlet Robe In his own blood to keep the Peace And from your Dungeons to release Twelve Trumpets hear 12 Apostles whose Silver sound Doth from the East to West rebound Proclaim'd the Sacred Edict have And Penalty whence none can save Which lest to you should be in vain Ye Adders deaf hear it again If Thee thy Brother or thy Friend Or Enemy hap to offend See thou to warn him do not grudg Twice at the least without a Judg And the last time see thou no less Shew him than thy two Witnesses Or three to make the Fact appear If he shall doubt to him more clear Nor shalt thou him for any thing Unto the Seat of Judgment bring Untill he Litis Contestate Or shew a Contumacious hate That if thou canst thou may'st him prove Thus first at home to win by Love Let every Plaintiff thus his Suit Begin or be for ever mute No form of Strife shall be but this Our express will and pleasure is The Nations Bow and struck with Awe Adore the Justice of the Law And to the dread Tribunal run High as the Clouds bright as the Sun With loud Appeals and further will Upon this Statute draw their Bill Both of Indictment and Complaint And of these Crimes you thus attaint That against this Divinest Act More Fees and greater to exact The furious Plaintiff false or true While hot you bind him to pursue The slow Defendant wrong or right You Bail or Goal to make him fight And Fines on Concords heavy lay To make them your unhappy prey The Debtor travailing to find The Creditor with honest mind Your Outlawries ambush the way And will not suffer him to pay But in your Tolls you take him there And bind him like a filly Dear Or what doth make him as forlorn To death you hunt him with the Horn To make his Skin and Carcass yours You cheat both him and Creditors And while his Plaint each sadly tells You take the Fish and leave the Shells Thus Innocents you lay in Chains Before they know who 't is complains Or what 't is for nor shall they see 't Till all Extortion's paid by Sheet You lay Imbargues and Prizes take Before the War proclaimed you make And Right by Battle try and Wounds Mortal before the Trumpet sounds Your Hell-hounds hunt without a noise Your Snake not rattles but destroys There 's nothing true and nothing Sworn Till Justice is to pieces torn And you who cite not but infest us With your Excessus Manifestus And us torment with great unfitness Dr. Cousins writes in defence of suppressing the names of Witnesses Accusers Excommunication ipso facto without Citation Because you will not name the Witness Your Ipso Facto's make us wonder At Thunderbolts without a Thunder And Bodies Judg in Hell to cast Before the Judgment day is past And deathless Souls make pale and wan Because you Curse before you Ban. No Plea deceives the Judg on high What will you do stand mute or flie All rather or who most repents Burn Popish Forms and Presidents Is it not better then to turn To Flames than you your selves to burn Some way with speed appease his Ire Your pain proclaimed is Hell and Fire Of Summons to answer before a Copy given of what is required to be answer'd This is in Scotland provided for by Act of Parliament and no man is troubled to appear before any Judg to answer before by their Libell'd Summons a Copy is deliver'd to the Person or affixed at the Door of his dwelling House containing all the matters at large to which his answer is required and though the People of England are not yet so happy as to enjoy so great a Privilege on which those invaluable Treasures of their Liberty and Propriety depend yet every Attorny and Clerk of a Court hath it and is free from giving appearance before a Judg or being Arrested till a Copy of the Declaration first deliver'd him and Judgment pass'd against him Attor Ac. 28. The reason why these Lay-Clerks who are Successors in Courts to the old Romish Spiritual Clerk Monopolize this from the whole People only to themselves is Filthy Lucre For first if the Plaintiff were compell'd as he ought to be to make Oblatio Libelli to the Defendant by giving or sending a Copy of his Bill in Chancery or of his Declaration at Common Law to the Defendant at his dwelling House and so likewise the Defendant bound to return his Answer Sealed up directed to be left for the Plaintiff in such Court having Jurisdiction of the Cause as the Plaintiff desired within Fifteen Days after the Service of the Copy at the dwelling House to be by the Officer of the Court deliver'd Sealed to the Attorney of the Plaintiff when he demands the same and the like done on Reply Duply Triply and Quadruply and all Exceptions of Fact or Law Postulations and Motions of
either Party both on matters principal and incident till there be a Contumacy to return Answer or a Litiscontestation made and a Commission desired to examine Witnesses and the Parties for Probation this would cause all those little Shreds of Sheeps-skins which so unnecessarily torment the Countrey and the dead Pots to be laid aside as the Popish Agnusses Dei or rather Agnusses Diaboli were and so the Successors to the Popish Clerks would lose their Fees in the one as well as the other to the great joy of all the Protestants 2. What is worse they would lose their Eight pence per Sheet for but Eight words in a Line and Fifteen Lines in a Sheet in Chancery and for Six half words in a Line with a Dash and Twelve Lines in a Sheet at Common Law all which a Boy would far better transcribe for a Peny per Sheet for want of which Oblatio Libelli by the Plaintiff a Rich man will of purpose draw his Bill in Chancery and stuff it with nothing but Falsi iâ—s so long to multiply the Sheets against a Poor man that it will cost him many times Three or Four Pounds for a Transcript for which he must send an Hundred Miles besides before he shall know what he must Answer So that the Rich need do nothing else to undo the Poor but suggest and throw him into the Lions Dens of Chancery Common Law and Checquer-Clerks for Copies of those Legends of Lies they themselves invented whereas if these rich and vexatious Plaintiffs were compell'd to serve Defendants by sending them from their Pallaces but a Copy to their poor dwelling Houses or Cottages what their wills and pleasures are to have right or wrong they would pay as far as they were able rather than if they told them they should first go so far to Clerks to buy Copies of their Will and Pleasure before they would vouchsafe to reveal the same and after be less able to pay than before 3. They would lose all the Gains of those unnecessary and hurtful Entries and Inrollments of the Bills Declarations and Pleas of the Parties in those huge heaps of Mouldy Rolls wherein it is easie for them to forge what they please for no Averment is allowed against Clerks and their Records which should be far better and more Authentick were the Copies delivered Signed by the Parties themselves and only filed orderly as received from the Parties and not Enter'd nor Inroll'd by the Clerks but kept by Filazers 4. They would lose all the Gains de Temere Litigantibus which is more than they have from â—uitors which Sue of necessity and for just Cause and would not have one Suit in Ten which they now have before them for the Countrey-man where the Writ is served before the Bill or Declaration think they shall Conquer presently their Adversary if they but Arrest Outlaw or have a Commission of Rebellion against him whereby they are encouraged by Attornies to rush blindly into unwarrantable Suits which many times undo them Whereas if the Law were as it ought to be by the Precept of Christ That every Plaintiff should first send a Copy of his Bill to the Defendant and heir his Exceptions against it or sind his Contumacy before he Summon'd him before a Judg he would before he would rashly en angle himself in Law-Suits consult Councel and have his Bill or Declaration drawn by them and hear the Exceptions of his Adverâ—ary against it after which there would not one of Twenty dare run headlong on a wrong Suit except Pâ—â—sons extreamly Litigious and shameless Whereas now on Summons and Arrests tolerated before a Copy of the Bill or Declaration given the Defendant vexations Contentions both in Chancery and Common Law are infinite and endless Of giving a Copy before an Oath of Calumny That he who gives it believes the same true and just The Oath of Calumny may by the Civil Law be required not only of the Parties Litigant but of their Advocates and Procurators who are in our Language their Councellors and Attornies and the same is appointed by an Act of Parliament of Scotland the Practice of the Courts there and the same is done not only to the Bill but to all parts of Process alledged either by Plaintiff or Defendant and is of excellent Use to clear those Contagious Plagues and Pests of Judicial Proceedings Fictions and Falsities and to restore Truth which is impossible to be kept alive in Religion or Justice without abolishing the other The Causes which introduce Fictions and Falsities into Judicial Proceeding are Four One the not using the Oath of Calumny The Second the not admitting Averment or Probation to the contrary The Third the not giving the Adverse Party notice of the time and place the Swearer is appointed to be Sworn and liberty to be there present himself or by his Commissioners to except against him if he have cause The Fourth is denial of Travers and Contrary Probation to all that is doubted to be false In the Civil Law there was but one Fiction which was Fictio Postliminii the occasion whereof was the Romans to incite their Soldiers to Conquer or Die which is to take no Quarter toucht by Virgil Jaciat si quem fati sors dura peremit and Horace p. 75. Si non perit immiserabilis captiva pubes If Captive Youth should not be suffer'd to perish without Pity and Redemption it would saith he be a pernitious Example to Posterity had this Cruel Law or Custom That who was a Captive lost the Rights of a Citizen and who died a Captive in the Power of the Enemy his Estate should be confiscated to the Publick Treasury and he should have no Heir to succeed him ff de Captiv postlimin To abate the rigor and severity of this Law the Judges helped the Captive by a Fiction feigning that he was never taken Captive but always remained in the City and the Legislative in imitation of the Judges that they might the less be taken notice of to derogate from their Military Discipline stretched the former Fiction a little further and enacted by their Lex Cornelia in favour of the Heir whose Father happen'd to die Captive to the Enemy a Charitable Fiction not to punish the Child for the Fathers offence that the Father died the next hour before he was supposed to have been taken Captive L. Si is qui pro Emptore in addit marg de Vsucapio And like that of the Midwives of Aegypt to preserve young Children from Destruction seems excusable if it was not possible to do it any way else but these Episcopal Fictions That Marriage is of Souls not Bodies of Spouses not Wives begetting of Children is by Husbands absent within the four Seas not by Adulterers within the Spouses Bed That Sons are not of the blood or kin to the Father who begot them but of him of whom the Bishop will please to certifie them these are not Mendacia Officiosa but
Title of very good if it had been put in Latine might have been more Complementally express'd Optimo had it not been a Danger lest Maximo would have been added whether the Title of very good given to man is always as great a Fiction as the Titles of Sanctus Clemens and Pius given to Popes may be always doubtful in regard Christ himself in Humility refused the Attribute of Good which is a degree under very good Luke 18.19 And Jesus said unto him Why callest thou me good None is good but One that is God but this Title very good is sometimes certain and not doubtful to be a Fiction when it is attributed to the Leudest Person known the Letter begins After my very hearty commendations to your Lordship This when there is a Mortal Feud between the Chancellor and the Lord must be a Fiction Whereas there hath been of late a Bill of Complaint exhibited into the Court of Chancery against you by H. O. Gent. I have thought good to give you notice thereof rather by these my private Letters than by awarding his Majesties Ordinary Process This if no Bill is come in is as great a Fiction and Falsity in a Private Letter as in a Subpoena and it were far fairer dealing with any Noble-man as well as a Poor man if J. O. first took his Oath of Calumny to his Bill and then made him according to the Precept of Christ an Oblatio Libelli and sent him a Copy of his Bill by his own Letter before he troubled him with a Chancellors Subpoena or Letter and made Use of them only on Probation and declaratory Sentence of Contumacy first obtained and after that obtained far fairer dealing it were with J. O. or any Poor man to grant the same Process of Contumacy that a Noble-man shall have against a Poor man and not put him to the extraordinary cost and incertainty of a Chancellors Private Letter to a Noble-man seeing by Law he ought not to receive any Private Letter from him and such Noble-man ought to be punished by the Civil Law de Ambitu and by the Common Law for Maintenance if he send any and this Justice would prevent Fictions both of Poor and Rich and bring forth Righteousness and Truth The Letter goes on and says Wherefore these are to pray your Lordships to give order for the taking out of the Copy of a Bill and for the putting in of your Answer thereunto according to the usual course in such Cases accustom'd at or before Octab. Hill next ensuing By this Prayer here is a Fiction that the old Episcopal Chancellor had an Imperial Authority over the Commons and only Precarious over the Nobles and was a Fiction if he derived his Authority from the King of the weakness of the Royal Power and of a Dishonour to it as if it was not able to do Justice to the Commons against the Nobles as well as to the Nobles against the Commons if a Sheriff at Common Law should Execute his Praecipe quod reddat and his Praecipe quod faciat whereby he is will'd by the King to command those against whom those Writs are directed by writing his humble Letters when he perceives they concerned Noble-men to pray their Lordships to do what he was appointed to command the Law makes him liable to high punishment and why a Chancellor should not be liable to the same who commits the same offence and having the Kings Process to command in his hand will not or dares not administer Equity by the same equal Process to his Majesties Subjects both Poor and Rich appears no reason or rather an higher Quanto Major qui peccat habetur by how much greater the Power of a Chancellor is extending to a Kingdom than of a Sheriff confined to a single Countrey The next in the Letter is Nothing deubting but that your Lordship will have the care and regard which appertaineth but another man may doubt whether he spake Truth or Fiction He concludes well if not in Hypocrisie I leave your Lordship to the most Merciful keeping of the Almighty from Saint A. the 9th of May 1654. Your very loving Friend J. P. Prolixity caused by Fiction The Bill in Chancery for want of the Oath of Calumny is known to be commonly a Pack of Lies from beginning to the end which is full of infinite Mischiefs and destructive to all Justice and makes it of such immense Prolixity for Lies may be infinite but Truths are few and short that it compels the Answer to be longer than it self for every Lie must be Answer'd as well as the Truth and by reason of such Prolixity neither the Chancellor as he ought to do will take the pains to read nor the Councel to be instructed in either but the Truth like a Grain of Mustard-feed thrown into an heap of Tares is lost and impossible to be found and Sentences and Decrees pass'd both Interloquutory and Final without the least Merit of the Cause Started Stated or Debated The Process of the Chancery is almost as mischievous a Fiction as the Outlawry at Common Law which is the Commission of Rebellion that on non-appearance the most Loyal Subject that is may be Feigned Proclaimed and Imprisoned as a Rebel so the Chancellor needs nothing but a Fiction to elude Magna Charta and the Petition of Right and an Hundred Acts of Parliament more if they were made to that purpose to which the Fiction is point blank contrary and destructive and as inconsistent with all the Fundamental Laws of Liberty and Propriety as Darkness with Light yet is there no necessity of it at all for where it is not necessary to take the Defendants Oath but the Plaintiff can prove his Bill by Witnesses full Justice may be done either by Missio in Possessionem where the Action is Real or where it is to stop Suits by the English Injunction or Scotch Suspension and where the Defendants Oath is necessary either for Discovery or Probation on proof made of the Bill and of the Countumacy and Sentence Declaratory a Capias may be awarded against the Defendant as after a Judgment pass'd Fictions of Latitats If we go to the Common Law Process that is as bad infected with Fictions as the Court of Conscience The Latitat is a meer Lie first it supposeth a Bill of Middlesex to precede where there is no such matter then the Defendant is slander'd Latitare discurrere when he lives as openly as any of his Neighbours and never stirs from his home the suggested Latitations are therefore Lies Then it saith De placito Transgr ' Ac etiam for if the Ac etiam be true of Debt then it is false as to Trespass for there can be no Joindure in Action of Debt and Trespass in the same Writ and so the Kings-Bench ought to have no Jurisdiction of Debt notwithstanding this Fiction except on a Writ of Error which is upon the matter confess'd by Coke himself
he ought to be punish'd in One Hundred Pounds to the King and Imprisonment one Year without Bail and One Hundred Pounds more to the Knight injured thereby or to any other Person who in his default will Sue for the same and is contrary to the two said standing Acts of Parliament of greater consequence than Magna Charta or the Petition of Right themselves for if there is a Protestant Parliament no doubt they will make and we shall not want Protestant Laws but if once there get in a Papist Parliament both Protestant Laws Religion and Protestants themselves will be all destroyed And as the Sheriff Returns Fictions to Courts so do they send Fictions to him and it is hard for him to know when they speak true and when false as if a Venire Facias be sent him to Return 12 Jurors he must Return 24 which is double the number or he shall be Fined for as they write their words in the Venire by halves so do they as it seems their Meaning by halves yet the poor Sheriff is bound to understand them to his Cost then if they send him a Pone per Vadios Salvos plegios the Sheriff must Return no other Plegii to answer their Fiction than his own Fiction of Plegii John Den and Richard Fen or they will teach the Party to have a false Imprisonment against him Suits are removed when the Plaintiff hath been at all the Cost and trouble and is ready for a Trial on meer vexation and to delay on Suggestion or Fiction of a Cause without any Oath of Calumny Attachments and Arrest of Goods and Persons is used in the City without any Oblatio Libelli or Oath of Calumny on meer Fictions and Suggestions City Law 22. but very wrongfully for a Citizen hath as good Right to Magna Charta as he hath to the Charter of the City and under the name of being free of the City doth not lose the liberty of a Subject to be free from Arrest before Judgment Coke Vind. Law 26. says Abuses of Fictions to Arrest before Judgment This brings to my remembrance how a Gentleman was Arrested for 1500 l. the same day that he was to have been Married without any colourable cause of Action spitefully to hinder his Match and was not able to give Bail but the Party being Non-suit the Gentleman notwithstanding could recover as I remember no more than 7 s. 2 d. Cost yet he lost his Monies and indeed himself by it for I know it was the occasion of his utter Undoing and a man that is Cannibally given may devour the Credit of 500 men Arresting them for 5000 l. a piece never declare yet pay no Cost though Party Arrested had better have paid 500 l. and this is so usual that 't is commonly said I 'le bestow a Bill of Middlesex on such a man to stay him in Town that I may have his company into the Countrey when I go down And I my self was informed by a Sea-Captain who was a Sufferer in such an Arrest That there happen'd to be two Merchants in London each of which designed a Voyage to the same Port of Barbary whether he who could arrive first was assured he should to his great gain obtain the Prime of the Market to which purpose they both strove with all diligence possible which should be foremost at the Spring and it happen'd that he who had his Ship first ready had entertained this Captain of my acquaintance to command her for him and all being ready to set Sail the Captain would needs walk into the City to take his parting Cup and Farewell of his Friends where unexpectedly he was Arrested for 5000 l. though not owing a farthing and the same being a Choak-Bail-Sum he knew he should get none to be Surety for him and thereupon sent to his Merchant to inform him how he was boarded before he could get aboard who being much troubled that his Captain was taken by a Land Pyrat repaired to him and understanding from him that he did not owe the Party at whose Suit he was Arrested a farthing and knowing withal that it was done by the Spite of the other Merchant to stop his Ship from getting before him he gave Bail for his Captain and sent him immediately on the Voiage All which Mischiefs happen because there is no Law to compel to give a Copy of the Declaration and Oath of Calumny before Arrest by which all Fictions are prevented All the Judicial Transactions of Fines and Recoveries are Fictions Fictions of Fines and Recoveries so though we have fled from Land to Sea and back again from Sea to Land we know not where to find Rest for the Sole of our Foot from Fictions We are next come to another horrible cause of their Increase which is that no Averment or Probation to the contrary is admitted against the Sheriff or the Clerk nor the Returns or Records how Records which are nothing but the Scribling of Clerks in false Latine and Court-hand for their Fees come to be of higher Authority than the Scripture it self is strange for it was never denied except against Mahomets Alchoran but Averment and contrary Probation might be brought against the false Copying false Translating or false Printing of any word or Clause in the Scripture or it would be very difficult to overthrow Popery What greater reason is there of so many Forgeries of Clerks but that there is no Averment allowed against their Records nor contrary Probation whereby they may for Money insert what Fictions and Falsities they please Estopples are another mischievous cause and the denial of liberty of Travers as bad or worse than the other Turpia quid referam vanae mendacia Linguae I am weary and ashamed to recite so much reflecting so deeply on the Honourable and necessary Profession of the Law Pudet haec opprobria nobis Et dici potuisse non potuisse refelli But all this may be easily taken away of Fictions and Falsities if so small a matter of Form were but alter'd as to give liberty to Traverse all is false and to cause the Plaintiffs and Defendants to give Copies of their Declarations and Pleas and to give their Oath of Calumny to them for I saw it by experience in Scotland which I must acknowledg and testifie to the Honour of their Form of Judicial Proceedings That I could never for the space of Six Years observe the least Fiction in the same which I can attribute to no other cause than the wise and just Act of Parliament concerning the Oath of Calumny Jac. 1. P. 9. C. 125. and the present Practice accordingly which Act being short I have transcribed That Advocates and Fore-speakers in Temporal Courts sall Sweare THrow the consent of the hail Parliament it is Statute and Ordained That Advocates and Fore-speakers in Temporal Courts and alswa the Parties that they plead for gif they be present in all Causes in the beginning or
the Servandes of the House or other famous Witnesse and sall execute their Offices and Charge and thereafter sall offer the Copie of the saidis Letters or Precept to ony of the Servands quhilk gif they refuse to do that they affix the samin upon the Èœett or Dure of the Persones Summoun'd and siklike gif they get na entress they first knockand at the Dure Sex Knockes they sall execute their Office before famous Witnesse at the said House and dwelling place and affix the Copie upon the Èœett or Dure thereof as said is quhilk sall be leiful and sufficient Summounding and delivering of the Copie and the Party and Officiar sall not be halden to give ony usher Copie bot at their awin pleasure And every Officiar in his Indorsation sall make mention of his awin Execution in manner fore said and the Partie at quhais instance the Letter or Precept is direct sall pay to the Officiar Executour the Expenses of the Copie affixed as said is and sall be taxed and given again to him the giving of the Decreet or Sentence gif he happenis to obteine And gif the Officiar heis foundin culpable in the Execution of his Office he sall be put in our Soveraine Lordis Prison and punished in his Person and Gudes at the Kingis Grace Will. Coke 4. part 99. saith The Common Pleas may in many cases proceed against their own Officers by Bill without Writ and why may not all the Subjects have the same Right as well as the Officers of the Common Pleas In London before the Mayor and Aldermen Debt and Personal Actions are determined by Bill without Writ City-Law 3. And so are Assises of Nusance ib. 4. and why may they not by Copy of the Bill be commenced better than by Writ over all the Kingdom The mischiefs of Original Writs from the Chancery Besides the Delays of Original Writs and Process by remoteness of Courts whither they are to be sent for and by the multiplications of Aliases and Pluries and the manifold dangers when gotten and executed to be again overthrown and nullified by Abatements for a multitude of frivolous Causes and Formalities and likewise for so many sorts of Variances as before mention'd of all which the Declaration might have been free if no Writ had preceded 1. It is excepted against Writs that Declarations are not amendable and it costs many times so much in amending the Misprision of Clerks in their Writs that the Plaintiff if he is not so poor as not to be able were better abate his own Writs and Declaration himself and pay Costs and buy Twenty new Writs than get one of the old amended 2. Writs Original are altogether useless except to get Money for nothing 3. They are saleable contrary to Magna Charta Nulli vendemus Justitiam and the Civil Law for Lege Julia tenetur repetundarum qui accepit aliquid ob Judicem delegatum dandum mutandum vel ob non dandum c. And what doth a Writ of Right a Justicies or any Original do besides but assign a Delegat Judg to hear the Cause in the Kings-Bench or Common-Pleas or Lords-Court or County-Court Then 't is contrary to Equity the Plaintiff should be compell'd to buy a Writ which is not only useless but pernicious to his Declaration and puts it in ten times more danger to be overthrown than if he might as he ought be permitted to use it without a Writ and the Plaintiff being to deliver a Copy of his Declaration Expensis Actoris to the Defendant 't is no reason he should be at any expence to pay Clerks for Writs impertinent 4. As to the Writ in Chancery of Subpaena Mischiefs of the Chancery Writ of Subpaena which is to be distinguished from the Writs to the Common Law Courts it is contrary to Magna Charta Nulli negabimus Justitiam for if a Poor man Sue a Noble-man there a Chancellour will deny a Poor man his terrible Writ which he uses to grant under a Hundred Pound Penalty in Terrorem Pauperum and he shall get no more of him if he do that at a greater price than the Writ would have cost but a poor begging Letter to the Noble-man to send his Answer to the Complaint against his Oppression which is no other than to bring into England the old Slavery of Rome whereby no Slaves were permitted to Sue their Lords before the Pretor or any other Judg were their Tyranny over them never so great and unjust What a wretched dishonour is it to Publick Justice which heretofore was blind to the Person that she turns now blind to the Cause and who heretofore carried the Sword in her hand Parcere Subjectis debellare superbus to have now lost her Sword and got a Crutch to become only a blind Beggar when she is to approach the Gates of Nobles neither is there any Law of God or man in England to justifie a Chancellour that he shall presume to use a different process of Concumacy against the Commons Chancellour hath no Power to Imprison Commons any more than Lords which he dares not use against the Lords for if it be not lawful for him to Issue Attachments or Commissions of Rebellion against the Lords or to imprison them then is it not lawful for him to Issue Attachments or Commissions of Rebellion against the Commons for both are equally Interested in Magna Charta and the Petition of Right not to be imprison'd without the lawful Judgment of their Peers and they being both Allies and Confederates by the said Acts to maintain the Commons Liberty The Liberty of the Commons is the Out-work which preserves the Liberty of the Lords if the Commons be Invaded though for the present such Invasion touch not the Lords yet when it hath destroyed the Liberty of the Commons the Lords will not be able to defend theirs when their Allies are lost The Liberty of the Commons is the Outwork which preserves the Liberty of the Lords the Liberty of the People is the Outwork which preserves the Liberty of the Parliament the Liberty of the Subjects is the Outwork which preserves the Safety of the King and as Solomon saith Prov. 20.28 Mercy and Truth preserve the King and if contrariorum contraria est ratio Cruelty and Fictions of Writs of Subpoena's in Chancery Latitats in Kings-Bench and Capiases without Summons in Common-Pleas wherewith they abuse the Kings name in false imprisonments of his Subjects without Crime or Cause destroys the prisonments of his Subjects without Crime or Cause destroys the Safety of the King himself and in a Case between the Duke of Lenox and the Lord Clifton M. 10. Jac. Though a Lord was not to be Committed for Contempt in a Poor mans Case yet in this Case between two Lords Chancellour Egerton said If Noble-men will commit Contempts they are to be Committed Now that the Imperial Power which hath been usurped by Chancellors to imprison the
Free-born Subject Arbitrarily at their pleasure is contrary to the Acts of Parliament both of Magna Charta and the Petition of Right so late in memory which abolish all Imprisonment both of Nobles and Commons without the lawful Judgment of their Peers so likewise is it contrary to all other Fundamental Laws of the Land made for defence of the liberty of the People which is more necessary and more dear than Life as may appear by the Reasons following 1. There is an Act of Parliament made 15. H. 6. cap. 4. That none shall Sue a Subpoena until he find Surety to satisfie the Defendant his Damages if he do not verifie and prove his Bill to be true this Statute had nipt in the Bud the Overflow of all those innumerable Fictions and Falsities which have since followed in the Suggestions of Bills in Chancery for this being made 15. H. 6. there is no mention made in all the Year-Books of any quarrel between the Common-Law-Judges and a Subpoena till 37. H. 6. which is above Twenty Years after so great a Fright had this Act falling from the Supreme Power put amongst the Froggs though now despised as a dead Logg as likewise are all the rest and it is in vain to make more unless the Honour of these is vindicated by the same Authority that made them for Chancellors as if Jura negant sibi nata they were two-great to be bound by Acts of Parliament though they have not the least pretence to colour their Authority against these Three the greatest Acts for Security of the Subjects against false Imprisonments that ever were made in England for there is no Prescription or Custom of any Court can be alledged against an Act of Parliament be it never so old and there is no Pretence to alledg any against the Petition of Right Chancellour hath no Authority to impose a Fine being in so fresh memory and no longer since than 3. Car. 1. they have trampled under soot the Authority of these Supreme Acts and all lawful Judgments on them 1. To lay Fines on the Subject thus Trin. 3. Jac. did Chancellour Egerton impose a Fine on Sir Thomas Themilthorp for not performing his Decree concerning Land of Inheritance and Estreated the same into the Exchequer and upon Process against him the Party appearing pleaded that the Chancellour had no Authority to impose a Fine the Attorney General Petiit advisamentum Curiae concerning the Authority of the Chancellour and on mature advice It was adjudged That he had no Power to Fine in the Case Coke 4th part 84. 2. To Extend according to which pretended Power the said Chancellour Decreed against Waller certain Lands and for not obeying the Decree imposed a Fine and upon Process out of the Court of Chancery extended the Lands that Waller had in Middlesex whereupon Waller brought his Assise in the Court of Common-Pleas where the Opinion of the whole Court agreed in omnibus with the Court of the Exchequer ib. 3. Not only to proceed to Imprison the Subjects on false Suggestions without taking any Surety of the Complainant according to the Statute to verifie his Bill but without so much as taking his Oath of Calumny to his Bill and have further presumed so high as by their Edicts and Orders of Chancery which they have not the least Authority to make to order the Subjects to be Attached and Imprison'd on every Affidavit of any Knight of the Post and no Probation to be admitted to the contrary and if while the Innocent Party is imprison'd being remote from his Home and suffering great Loss and Damage by this his false Imprisonment he shall at length offer to prove the Affidavit false and Knight of the Post perjur'd he shall be discharged but without any Cost for the great Service the Knight of the Post did the Court to Forswear himself against the Prisoner whereby they get some Fees See here a Chancellour in desiance of Three Acts of Parliament without any Sureties without any Oath of Calumny without any Judgment of Peers publisheth in sight of the Sun his abominable Orders to cast into Prison the most Innocent Person on the false Affidavit of every Perjur'd Knight of the Post yea a single Affidavit as appears by the Orders of the Chancellour and Master of the Rolls Printed 1669. Page 67. and yet they pretend Page 65. under the Title of Commitment that they are tender of the Liberty of mens Persons and of their Imprisonments on Affidavits and confess they are often Malitious and made by one mean and ignorant Person yet in the same breath Page 67. as if they soon forgot or understood not what they said in the beginning of their Order they the next leaf conclude That a single Affidavit of such a malitious mean and ignorant Person yea though he is proved afterwards to be Perjured shall be sufficient to Imprison the Innocent Subject and when he again gets out of Gaol if he can let the Innocent Party be indamaged his whole Estate he shall not have a Farthing Cost for the false Imprisonment and observe the depth of the Reason why given by a Chancellour and as the Printed Orders say with advice and assistance of the Master of the Bolls 't is this as appears Page 68. at the top of the leaf viz. IN RESPECT OF THE OATH MADE AGAINST HIM AS AFORESAID that is to say the Oath though false of a Villain Perjured against the Innocent Person for so is the implication of the Order and likewise though they durst not say so in express terms yet so is the implicit Non Obstante notwithstanding any Law of God or Man or Acts of Parliament to the contrary Doth not here a Chancellour assume the Omnipotent Power of the Pope to dispense with the Laws of God and Men and assume a Power of Imprisoning the Subjects above the King and Parliament yea contrary and in contempt of their Laws he doth for the Law of God and Precept of Christ is known to prohibit the Imprisonment of any No Imprisonment ought to be but where the Witnesses and Party are brought Face to Face without two Witnesses at least and without bringing the Witnesses and the Party accused face to face that he may know them and except against their Persons or Testimony if he hath cause which is never done on an Affidavit And the Laws of the Land Magna Charta and Petition of Right utterly prohibit all Imprisonment of the Subject on Affidavits whether they are true or false without bringing the Witnesses and the Party face to face and a Judgment on such Testimony against him by his Peers and if such Evil Precedents be suffer'd to pass without some example of Justice shewn on them all Acts of Parliament which ever have been or shall be for protection of the Liberty of the Subject Forgery Licensed in Chancery thereby to Imprison the Subject falsely will be vain and to no purpose 4. The Chancellour
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.
nane against quhome the Process beis led be received in the Kings Castle or Place or in his Presence nor admitted to Councel or Parliament heard nor answer'd in the Law of Judgment of Fee and Heritage or uther Causes bot ever Eschewed as Cursed unto the time the said Persons cum to amendis and assyith the Party and obteine Absolution in Form of Law And Jac. 6. p. 3. cap. 53. in the Kings Minority an Act was got by the Kirk ' That all Excommunicate Persons not Conforming ' in Forty Days should be denounced Rebels and put to the Horn. The English Commissioners in the said late time of the Troubles had Instructions to take from the then Kirk such Letters of Horning and not to assist any Excommunication with the Temporal Sword which we performed accordingly The King of Spain joined with Tyrone and the Rebels in Ireland against Queen Elizabeth And Don John de Aquila Landing in Ireland with 4000 Spaniards intitled himself Master-General and Captain of the Catholick King in the Wars of God for holding and keeping the Faith in Ireland only on pretence of Excommunication Sextus Quintus the Pope of Rome on the Invasion prepared by Spain against England Anno 1588. sent out his Crusado as if against the Turks and having pass'd Sentence of Excommunication and Deprivation by his Bulls against Queen Elizabeth promising Pardon of Sins Heaven and Eternal Life to all who di'd in the Invasion 1. To grant a Pope or a Bishop Power to Excommunicate Protestant-Subjects is to grant him Power to Excommunicate Protestant-Kings 2. To grant him Power to Excommunicate Protestant-Kings is to grant him Power to Levy Money Raise Soldiers Denounce War and Depose them 3. Of the Dilemma of Danger threatning Princes who seek Security of Goverement from the Excommunication of Popes or Bishops either over a People Religious or Superstitious 4. Of the Impossibility of Security for Princes unless their Subjects are Educated or Instructed to be free from the Superstition of Excommunication and to contemn it 5. Of the Impossibility of obliging Popes or Bishops either by Benefits or Oaths Excommunication is as Proscription made a pretetence of Confiscation without shewing cause The Romans saith Aman. Marcellus proscribed Ptolomy the then King of Cyprus being their Confederate for no fault only they wanted Money in the Treasury who therefore poison'd himself and the Isle became Tributary to the Romans In the like manner do Popes and Bishop fall on the Richest with their Excommunication to fill their empty Purses Pope Gregory the Tenth Commanded Percham Arch-Bishop of Canterbury to pay him Four Thousand Marks within Four Months on pain of Excommunication So Excommunication is a ready way to Levy Money for War Anno 1230. The Pope having Excommunicated the Emperor the Emperor was fain to pay for his Absolution an Hundred and Twenty Thousand Ounces of Gold Plat. Nam Anno 1231. The Emperor for memory of this hard Penny-worth for his Absolution put into a Pool at Helbrand divers Pikes and other Fishes with Brass Rings having Inscriptions of his name and the Year of the Lord one of the Fishes was taken up 267. Years after Ann. Suev Calv. Henry the Second after that Traitor Beckett the then Arch-Bishop of Canterbury had been Slain though not by the Kings Command was enjoined amongst other things this Slavish Penance He walked Three Miles bare-foot on the sharp Stones that he at length had so cut his Feet they marked the ground with Blood every step he went And after this which was worse than Running the Gantilope he Received of the Priests Monks Bishops and Abbots on his naked Flesh so many Jerks with Rods Oh brave Pedants and Pontifical Government for Princes as according to Baronius amounted to at least Fourscore Lashes which doubtless was the Number the Jew administred to the vilest Rogues lest their Brothers should be despised in their Eyes and not heard to have been Exercised in their Eyes and not heard to have been Exercised on the Priests Bishops and Abbots themselves though they kill'd and murder'd many Lay-men without Law or Justice they incur'd only a deprivation and instead of Hanging which they deserved sometimes no more than a suspension Temporary ab Officio In the time of King John Anno 1211. The Pope Excommunicated him and gave the Kingdom of England to the King of France Paris Wend. The Pope Excommunicated Henry the Eighth and gave the Kingdom Primo Occupanti Queen Elizabeth was Excommunicated by Three Popes Pius Quintus Gregory the Thirteenth and Sextus Quintus Anno 1308. The Pope Excommunicateth Andronicus Emperor of the East and setteth up the King of Russia against him Bzou So he dealt alike with the East and Western Emperors Excommunications have brought the Venetians to extreme Straights formerly therefore they are yet no Friends of it Dandalus Duke of Venice was compell'd by Pope Clement the Fifth to Crouch under the Table Chain'd like a Dog before he could obtain Peace for the Venetians The Pope Excommunicated John King of Navar and Granted his Kingdom to the Spaniards Nicephorus Phocas Emperor of the East was Excommunicated by Polyeuchus then Patriarch of Constantinople because he had been God-father to a Child of Theophania Wife to his Predecessor and after his Predecessor's Death Married her Pope Zachary deposed Chilperick the French King and gave the Crown of France to Pepin The two French Kings H. 3. and H. 4. who were Assassinated had great Guards whereby it appears though Princes may secure themselves in Vaults and Caves from Thunderbolts yet can they not against the Bishops of Romes Ignis Fatuus of Excommunication but that to Assault them Per medios ire Satellites Et perrumpere amat saxa potentius Ictu fulmineo Eight Emperors were Excommunicated by Popes who were these Frederick the First Frederick the Second Philip Conrad Otho the Fourth Lewes of Bavaria Henry the Fourth and Henry the Fifth The Emperor Henry the Fourth Fought in Threescore and Two several Battles and had for the most part Victory he was Excommunicated by the Pope and to obtain his Absolution came Three Days together bare-foot to the Gates of the City Canusium where the Pope then was and with much difficulty obtain'd it The Catholick Majesties of Spain cannot secure themselves from Excommunication without Money nor their great Vice-Roys in America for a Rebellion was Raised in Mexico by the Arch-Bishop there Excommunicating the Governors the People by Superstitious Episcopal Education made more afraid of the Counterfeit Power of the Keys than of the true Power of the Sword and will side in Rebellion with the Bishop against the Secular Governor men may talk therefore and believe what they please that the Supremacy of the Temporal Sword is Consistent with the Spiritual of Excommunication but when it comes to Trial amongst a Superstitious People they will be very much deceived and perhaps Ruin'd Bzovius de Pont. Roman 611 612. to maintain the Power That the Popes may depose Kings
Excommunicato Capiendo and Heretico Comburendo to catch and roast the Bird himself for the Bishop to eat it and of the subtlety of the Bishop as to this matter see more before p. 167 168 169. How little incouragement there is therefore for Protestants to take this Oath of Supremacy wherein the Kings name is only abused and made a Stale to draw a Supreme and Arbitrary Power to Bishops both over the King and them and to drein the Royal Treasury into their own Pockets and how untrue a Test such an Oath must be is humbly submitted to Supreme Authority Supremacy granted by Act of Parliament of Marriage and Legitimation to Canterbury yet Sworn to be in the King 6. By the Statute 25. H. 8.21 Power is granted to the Arch-Bishop of Canterbury and his Successors by their Discretions to Grant unto the King his Heirs and Successors all such Licenses Dispensations Compositions Faculties Grants Rescripts Delegacies for Causes not contrary to the holy Scriptures and Laws of God as heretofore had been used and accustomed to be held and obtained by his Highness or by any his most Noble Progenitors at the See of Rome and all Children procreated after Marriage by virtue of any such License or Dispensations shall be admitted and reputed Legitimate in all Courts Spiritual and Temporal So this Act of Parliament made in time of Popery translates the Pope from Rome to Canterbury and the Supremacy before used or accustomed by him over the King and his Subjects concerning all the matters mention'd in the Act is placed in the Person of the Arch-Bishop and the Bishops call this a Supremacy in them according to Scripture and the Law of God which is worse and more Papal than to claim it only by Act of Parliament for what more Papal Supremacy can there be than Power to Grant Licenses Dispensations Faculties Compositions Grants Rescripts Delegacies of Marriage Legitimation and all other matters which Popes have formerly granted from Rome to Kings and their Subjects at discretion and this Exceptio is contraria facto for the granting of Licenses by Popes to Kings is contrary to the Law of the Land and is a Power Supreme to the Legislative and Law of the Land so the Grant in the Act is Repugnant to the Exception for 〈◊〉 Licenses or Dispensations are necessary but where there is a standing Law of God or Man to the Licensed or Dispensed with no Composition or Pardon necessary but where there is a standing Law violated or broken no Faculty necessary but where is a standing Law disabling the Party to do what he desires to have a Faâ—ulty for that he may be enabled to do No Rescript is but from a Supreme Prince no Delegacy but from a Superior to an Inferior for the Pope is Superior to his Legate though he be Legatus à Latere and the highest preferment this Popish Act of Parliament allows the King is to be the Arch-Bishop's Legate then the Act having made him Supreme to the Legislative Law and King gives him as high Supremacy over the Judicial Power in all Courts as well Spiritual as Temporal which is Supremacy over the Parliament which is a Court-Temporal This Act therefore doth set up more than Prelacy or Arch-Prelacy at Canterbury for that was there before and the Gyants had piled up Pelion on Ossa already and now they steeple it with Olympus and if they set not on the Gyants head the Triple Crown 't is sure they have the Triple Miter three stories high of Prelacy Arch-Prelacy and Supremacy When the Arch-Bishop got therefore of the Parliament this Act he was something like the Carpenter who begg'd of the Wood only one Helve long enough to turn his Hatchet into an Ax and when he had got that he cut down the whole Wood for he having now got so long a Helve to his Spiritual Hatchet as Supremacy over the Marriage not only of the old Palm Trees and Legitimations of the young at his Discretion that is to say if they give him whatsoever Money he asks for Dispensation and Legitimation this gives him likewise Power to strike both at Root and Branch of all the Royal Protestant-Cedars themselves in the Popish Points of Ceremonial Marriage and Legitimation endeavour'd now to be brought to the true Test of a more Supreme Law and Judg than his the Moral Law of God himself How therefore the Protestant can safely Swear in Conscience the Supremacy to be only in the King when so great a share of it is granted to the Arch-Bishop by the King and Parliament until the same Act of Parliament of 25. H. 8.21 by which 't is done is Repealed I confess my Ignorance and if it be without cause crave Pardon 7. The Party who is to Swear who is the only Supreme Governour must be intended to Swear either who is Supreme De Facto or De Jure if De Facto who hath the Actual Power of the Sword it may happen to be in a time of War when two Armies are in the Field and Inter utrumque Volat Dubiis Victoria pennis It is necessary at such a time that the Swearer unless he will Forswear himself be a Prophet of whom there are not many in this Age amongst such as take the Oath of Supremacy if it be said the Swearer ought to Swear De Jure who hath Right to be only Supreme Governor to this is Answer'd 1. Unless he can Swear to the matter in Fact he cannot Swear to the matter of Law or Right for Ex facio jus Oritur all matter of Law must arise from the matter of Fact therefore the Fact must be first known before the Right can be known which is to be deduced from it 2. The Right when the Oath is required may be as to Succession of the Crown wherein the matter of Fact depending only on Genealogies the Heralds themselves especially after Wars may not be able to make any clear probation of the Descents as Ezra 2.62 and Nehem. 7.64 it is said These sought their Register among those that were reckoned by Genealogie but it was not found therefore were they as Polluted put from the Priest-hood If therefore the Genealogies of Priests who wore themselves the Registers and kept their own Descents as curiously as was possible may be lost much easier may those of the Lay and the Law and Divinity may likewise be so doubtful that it is justly acknowledged by the King and Parliament themselves 25. H. 8.22 That Ambiguities and Doubts touching the Successions of the Crown have been Causes of much Trouble and no perfect and substantial Law hath been made for Remedy of the same and accordingly at the Death of Queen Elizabeth there were no less than Sixteen titles endeavour'd to have been set on foot to the Succession partly by Papists to overthrow the Protestant-Religion partly by others to overthrow the Union between the two Kingdoms in the Person of King James in which the Protestants of