Distrained or Sequestred which a Woman cannot be 3. As to return in specie and not in value I say to deliver a Woman to a Man to be lain with against her will is a Rape on the Woman and the like is it of a Man to compel him to lye with a Woman who claims him against his will 4. This indangers the lives of Man and Woman who are mortal Enemies by Poison Sword or other wicked ways when compelled to Co-habitation against their will 5. To sentence either Man or Woman to be taken in specie not in Value according to the practice of the Ecclesiastical Law bring in the great absurdity and wickedness mentioned by Fortescue p. 75 Fortescue 76. where speaking of Tryal by Witnesses in the Bishop's Court he saith If a Man and a Woman make a private contract of Marriage without Witnesses One man Sentenced to lie with two Women and punished for lying with each and after the Man and another Woman make a contract of Marriage before Witnesses shall he not in the Contentious Court be compelled to marry her and also after that in the Penitential Court be adjudged to lye with the first if he be duly required and to do penance as often as by by his own motion and procurement he lieth with the second though in both Courts the Judge be one and the self same person In this case as it is written in Job 40.17 Are not the sinews of the stones of Behemoth wrapped together or perplexed Fie for shame they are perplexed indeed for this Man can carnally company with neither of these two Women nor with any other without punishment of the Contentious Court or Penitential Court but such a mischief inconvenience or danger can never happen by the way of proceeding in the Law of England yea though Behemoth himself doth labour to procure the same Of the Law making all prohibited Marriages Null Marriage without Witnesses or Ceremony not void though prohibited The Law of the Pope and Council of Trent not only prohibited all Marriages except contracted before two Witnesses and a Priest in a Temple but makes them null and void The Law of England prohibits them but doth not make them null and void though the common practice of the Bishop's Court and Certificates contrary to Law follows the Canon of the Council of Trent and though it was made after all Forein Jurisdiction was by Act of Parliament abolished But to speak now according to the Law of God and of the Land I shall first cite the opinion of Grotius and other Authors upon it As to the Law of God Grot. de jur Bell. Pac. pag. 142. saith Si lex humana conjugia inter certas personas contrahi prohibeat non ideo sequetur invitum fore Matrimonium si re ipsa contrahatur sunt enim diversa quid prohibere quid irritum facere nam prohibitio exerceri potest per poenam vel expressam vel arbitrariam hoc genus leges imperfectas vocat Ulpianus quae fieri quid vetant sed facium non rescindunt And after he saith Indecentia est major in Actu quà m effectu saepe etiam incommoda quae rescissionem sequuntur majora quà m ipsa indecentia aut incommodum Actus ipsius If any human Law prohibit Marriage between certain persons it doth not therefore follow that it makes such Marriage void if it be actually contracted for to prohibit a thing and make a thing void are two different things for a prohibition may exercise its power sufficiently by a penalty either Express or Arbitrary and this kind Vlpian calls imperfect Laws which forbid a thing to be done but if done rescind it not After he saith For often times the indecency is greater in the act then the effect and often times the mischiefs are greater which follow a rescission then the act it self With this agrees the expression of Thamar to her Brother Ammon attempting to force her Thamar and Ammon 2 Sam. 13.12 And she answer'd him nay Brother do not force me for no such thing ought to be done in Israel do not thou this folly And I whither shall I cause my shame to go And as for thee thou shalt be as one of the Fools in Israel Now therefore I pray thee speak unto the King for he will not withhold me from thee Howbeit he would not hearken to her voice but being stronger then she forced her and lay with her Then Ammon hated her exceedingly so that the hate wherewith he hated her was greater then the love wherewith he had loved her And Ammon said arise begone And she said There is no cause This evil in sending me away is greater then the other that thou didst unto me but he would not hearken unto her For the same reason King Alcinous adviseth Medea That Medea should be returned to her Father if she were not defloured but if she were the reason will be otherwise as is remembred by Apolonius in his Argonaut So likewise the Sabin Virgins being taken by the Souldiers of Romulus Sabin Virgins their Parents raising Arms again to resoue them home when the two Hostile Armies in Battalia drew neer one another the Romans sent their Foeminine Prizes to mediate a Peace who using this argument to their friends and kindred as they stood ready to fight That it would be a greater injury to their own honour and their friends to take them from their Ravishers who were now their Husbands then their first Rape and thereby obtained it Luther to this purpose relates a story of a young Man he knew at Erfort Luther who tempting his Mother's Maid the Maid acquainted his Mother with it she with a pretence to School her Son into a better Lesson layes her self in her Maid's Bed her Son gets her with Child of a Daughter which being concealed and the Daughter sent abroad to Nurse and School and after being grown up and brought home the young Man knowing not of it married her so that she became thereby his Daughter Sister and Wife After the same being discovered the University was consulted about it who thereupon advised the Mother to repent of her wickedness but seeing the married Couple were ignorant thereof and knew nothing they advised to avoid greater offence that they should continue together Quod fieri non debet factum valet Here was a Marriage prohibited by the Law of God and Man yet when made it appears the opinion of the University was it ought not to be rescinded Law of England doth not null a marriage not according to the Common-Prayer-Book though it prohibits it I am next to speak concerning the Law of the Land which though it prohibit yet doth not null a Marriage not made according to the form of the Common-Prayer-Book The first Reason is It doth not null the Marriage of a Papist which is not according to the Book of Common-Prayer à fortiori therefore
it doth dot null a Protestant's which is not made according to that Form That it doth not null a Papist's Marriage appears by the Act 3 Jac. 5. where a Papist is prohibited to be Married otherwise then in some open Church or Chappel by a Minister Lawfully authorized upon pain that the Man shall lose to be Tenant by the curtesie and the Woman her Dower Widows estate and Frank Bank or if the Woman hath no Land whereof the Man may be Tenant by the curtesie then the Man is to lose a hundred pounds So in case of a Papist nothing ought to be exacted for Non-conformity in Marriage but the express penalties nor can the Marriage of a Papist though not according to the Act be made null or the Children thereby illegitimate why then should a Protestant's 2. Because the Council of Trent which made the Canon That all Marriages should be null and void except contracted before two Witnesses and a Priest in a Temple is a Forein Jurisdiction and the Canon was made after the abolishing all Forein Jurisdiction the same ought not therefore be admitted to null any Marriage in England or illegitimate any Child 3. This is confessed by a Learned Civilian and Canonist of our own belonging to the Ecclesiastaical Court Swimburn Swimburn of Wills and Test 1 part 34. Who there saith That an unsolemn Marriage or not having Canonical Ceremonies is not therefore no Marriage because it is unsolemn the Banes perhaps not being asked or the Marriage not Celebrated in the face of the Church but privately in a Chamber or some other Rite or Ceremony omitted but is nevertheless a true Marriage And in the Margent he adds to this effect Insolemnitas autem est defectus juris civilis non juris naturae nam illa requisita de quibus in C. cumin hibitio de Cland. despon sext non esse deforma substantia matrimonii Legitimationis prolis sed de solennitate tantùm ipsius decore introducta Post Theolog. Canonistas prodidit Granis Consul Civil 168. hanc op communi calculo receptam dicit Jo. Lub Mascard de probat verb. filius conclu 798. n. 8. licet hodie per Concil Tridentin hujusmodi matrimonia fiunt irrita Nos tamen sequimur antiquum jus commune tanquam non mutatum Insolemnity is a defect in the Civil Law and not of the Law of Nature for those requisites of 1 C. inhibitio de clan despon Granis Concil Civil 168. hath delivered after many Divines and Canonists the same not to be of the substance of Matrimony and Legitimation of Children but only introduced for their greater Ornament And Jo. Lub and Mascard de Probat verb. Filius 798. say likewise The same opinion to be received by general approbation and though of late the Council of Trent hath made such Marriages void yet they follow the ancient Common Law as not changed Whereby it appears that the Canon of the Council of Trent to make Marriages not according to the Romish Ceremonies is rejected in many other places and much more in England where all Forein Jurisdiction is abolished and there is no other Law of England if that of the Council of Trent is excluded which makes any Marriage of Protestant or Papist void or illegitimates the Children If the Marriage is not therefore void it is valid and hath all the rights of a valid Marriage and the Children all the rights of Legitimate Children 4. It is already in part and will hereafter be further shewen That carnal knowledge and not Ceremonies are Marriage and that the same and the birth of a Child and not Ceremonies make Matrimony and that both Marriage and Filiation are impossible to be proved by any Witnesses except the Parents admit Therefore if the Canon of Trent were confirmed by Act of Parliament or a thousand Acts of Parliament yet can they not make that Matrimony and Filiation by a Ceremonial Law of Man void which is established by the Moral Law of God as will be further shewen under the Title of Ceremonial Law and Law of God Of the Custom of Super-alimentary gifts in consideration of carnal knowledge between a Man and Woman both before and after Marriage Portions of Daughters Nuptial love is like the gift of God impossible to be bought for mony Cant. 8.7 If a Man would give all the substance of his House for Love it would utterly be contemned Solon the Athenian Law giver ordained That Wives should not bring their Husbands above three Gowns and some other movables of small value Lycurgus instituted That Virgins should be married without Portions 1. That none might remain unmarried for their poverty 2. That none should be taken for their riches but their vertues Plut. In Poland Fathers give no more with their Daughters then their Wedding Clothes And the truth is as to Fahers it comes all to one whether they give Portions with Daughters or none if there were such a Law for if A. and B. have each of them three Sons and three Daughters and A give Portions with his Daughters to the Sons of B and B give back again those Portions with his Daughters to the Sons of A there is nothing got on either side but the trouble and hazard of tumbiing in and out the money and the vexation of Lawyers with their foul Fines and crabbed Concords to do and undo all again like Juglers knots The Venetians had a Law none should give above fifteen hundred Crowns others say sixteen hundred Duckats with a Daughter yet are they very rich Bodin cries out against high Portions and saith That by the Antient custom of Marseilles it was not lawful to give above an hundred Crowns with a Daughter and five Crowns in Apparel And a Law was made by Charles the Ninth forbidding to give a Daughter above a thousand pounds sterling And yet the Ordinance of Charles the fifth doth give no more unto the Daughters of the House of France and though Elizabeth of France Daughter to Philip the Fair was married to the King of England yet had she but Twelve hundred pounds sterling to her Dowry Some will say it was very much considering the scarcity of Gold and Silver in those days but the difference is likewise very great betwixt a thousand pounds and four hundred thousand Crowns It is true she was the goodliest Princess of her Age and of the greatest House that was at that day Henry the Eighth gave for Portions to his Daughters Queen Mary and Queen Elizabeth but Ten thousand pounds a piece And if we will seek higher we shall find that in the Law of God the Marriage of a Daughter was taxed but a fifty Skekells which makes at most but four pounds sterling of our money Gifts by Men to Women Amongst the Jews there appeared almost no other distinction in the Scripture between a Wife and a Whore but one took hire and the other none and indeed if there were no
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
no Jurisdiction but by Usurpation of so Temporal a Right as Marriage before this Statute let any who thinks he can see Nine Miles into a Milstone once more look into the Statute of Merton before recited and try whether he can screw out of it any word giving the Bishops either a Jurisdiction of Marriage or general Bastardy or that this Statute ever forged so rude a Romish Tool as the two edged Sword of general and special Bastardy to divide the living Child or tear it in peices between the Bishop and the Temporal Judg or how it was then consistent with a Legale Judicium parium to expose a Child no Alien but the King 's Native Subject to be tried for all he had by a then Foraign Ecclesiastical Law and a Judg a sworn Canonical Subject to a Foraign Pope or that the wisdom of that Parliament intended to coin a Chimera of a Distinction without a difference of general and special Bastardy which neither they themselves understood nor any Lawyers which write to this day give any sensibly Interpretation or agree amongst themselves concerning it or that they who made the Statute to oppose the Bishops Jurisdiction of Marriage should create a Notion of general Bastardy which le Scrope says was not in Esse before to give them a new Jurisdiction which was to change the Laws of England which they positively refuse in the Statute it self to change Object 4 No Similitude of fetching the Laws of Athens to Rome and bringing the Romish Laws to England It is further alledged by Coke lib. 5.1 part 9. That as the Romans fetching divers Laws from Athens yet being approved and allowed by the State there they were called Jus Civile Romanorum And as the Normans borrowing all or most of their Laws from England yet baptized them by the name of the Laws and Customs of Normandy So albeit the Kings of England derived their Ecclesiastical Laws from others yet so many as were approved and allowed hereby and with general consent are aptly and rightly called the King's Ecclesiastical Laws o. England To which is answer'd That there is no similitude between making or changing the Laws of the Athenians which were Foraign Laws to become the Laws of the Romans and the making or changing either the Foraign Papal or native Provincial Canons or Ecclesiastical Laws into the King's Ecclesiastical Laws of England For First The Athenian Laws before they were made Denizons of Rome were not admitted in cumulo but Articulated and every Article examined one by one by the Decem viri or Ten Men as our usurped Ecclesiastical Laws were appointed to have been done by the Statute of 25 Hen. 8.19 by the Two and Thirty Men and likewise in time of Edward the Sixth by others but neither succeeded before the same was received for a Roman Law Secondly Such Athenian Laws as were pickt or garbled from the rest were by the Authority of the Legislative Power of Rome both Senate and People caused to be writ in Twelve Tables and inacted to be the Laws of Rome but in England there was never by Authority any Articulation selecting or garbling of Canon Laws effected nor the same reduced into Tables Written or Printed by any Act of Parliament Ecclesiastical Laws in an unknown Language Thirdly The selected Athenian Laws were written in the Roman Language to be understood by the People before they would be received as Roman Laws but there is no such thing in the Ecclesiastical Laws of the Holy-Church concerning Marriage or any thing else but they all still remain in the Language of the Beast and can be neither call'd the Laws of the Church which by the Scripture are forbidden to be spoke in an unknown tongue as appears 1 Cor. 14.19 It is said In the Church I had rather speak five words with my understanding that by my voice I might teach others also then ten thousand words in an unknown tongue It is as utterly unlawful therefore to make that a Law of the Church or an Ecclesiastical Law of Marriage which is in the unknown Language of Latin as it had been to have made any form of Prayer taken from the Romish Church though the Pater Noster it self the form of Prayer of the Church of England while it was in Latin for the Minister would then have been a Barbarian to the English man and the English-man a Barbarian to him and it is as bad for the poor English-man for his Law-sutes in Latin for a Wife in the Court of Arches and other Ecclesiastical Courts as it would be if his Prayers were again in Latin in the Church For though he pay his Lawyers dear to plead his Cause there he cannot understand for his Money whether they call him and his Wife Rogue and Whore or honest People or whether the Judg by his Sentence will give him his Wife or take her from him but by the implicit Faith of an Interpreter as let any one look on the Sentence of Divorce in Kennes Case Coke lib. 7.42 E. he may understand or not understand the same Ecclesiastical Laws are not the Laws of the Land Fourthly The Athenian Laws were not obtruded on the Romans by Conquest of their Bodies by the Temporal Sword or their Souls by the Spiritual Sword of Excommunication but the Ecclesiastical Laws of Marriage have been obtruded on England ever since the Conquest by the superstitious Terrors or actual force of Excommunication either Papal or Episcopal and never by consent in Parliament The suffering of an oppression therefore is no consent nor an abuse against Law an Use Custom or Law neither can a wicked Oppression Use Custom or Law in name only be turned into a Law of England except by consent in Parliament or other humane Power besides it is by the very before recited Statute of Merton declared That the Laws of the Church are not the Laws of England for when the Bishop quarrel'd that the Law of England as to Marriage was not according to the Law of the Church and would have had them changed into the Law of the Church the Earls and Barons with one voice answer'd We will not change the Laws of England Whereby it 's plain the Laws of England and Laws of the Church are opposite Laws and not the same and this is confessed by Coke himself in the exposition of his Statute of Merton 2 part Inst fol. 98. where he saith Here our Common Laws are aptly and properly called the Laws of England because they are appropriated to this Kingdom of England as most apt and fit for the Government thereof and have no dependence upon any Foraign Law whatsoever no not on the Civil or Canon Law other then in Cases allowed by the Laws of England and therefore he saith the Poet spake truly hereof Et penitus toto divisos orbe Britannos So as the Law of England is proprium quarto modo to the Kingdom of England therefore Foraign Precedents are
not to be objected against us because we are not subject to Foraign Laws Again that custom or use of Civil or Canon-Laws or Precedents doth not make Civil or Canon-Law the Law of England appears by the use of Sentences of Philosophers and Poets and Precedents of Historians all as much used in Courts of Records of Courts of Judicature as the Civil or Canon-Law yet doth not this use or custom make these Sentences of Philosophy and Poets and the like to be the Law of England or obligatory to the People of England unless such Sentences of Philosophers and Poets are selected from the rest and inacted or confirmed by Act of Parliament to be hereafter the Laws of England And they are so far otherwise from being Laws of England that Cardinal Woolsey Mich. 21. H. 8. Coram Rege was Indicted That he intended Antiquissimas Angliae Leges penitus subvertere enervare universumque hoc Regnum Angliae ejusdem Regni populum Legibus imperialibus vulgo dictis Legibus Civilibus earundem Legum Canonibus in perpetuum subjugare subducere c Let any shew a sensible reason why the Bishops and Ecclesiastical Judges who actually bring in the whole heap of Civil and Canon Laws to judge of the Marriages Filiation and Succession of the Subjects and amongst them the new coin'd Law at the Council of Trent made when Forein Jurisdiction was abolish'd and thereby actually deprive him of that invaluable liberty to which every Native Subject is born and is confirmed to him by so many Acts of Parliament And those great Fundamental Acts Magna Charta and the Petition of Right to have his Birth-right tried per legale judicium parium deserve not as high a censure by Parliament as Cardinal Woolsey had who only intended to do the same And if any hath any mind to consult besides the Laws and Precedents against Forein Laws and Precedents Bod. lib. 1. of a Common-wealth fo 107 108. will give him some satisfaction Forein Laws become not the Laws of this Land by being used by Lawyers where he saith It was in most strong Terms judged by a Decree in the Court of Paris in the Case of Philip the Second the French King That be was not bound unto the customs of the Civil Law at such time as they who were next kindred would have redeemed of him the Countrey of Guyens howbeit that many both think and write the Prince to be bound to that Law for that they think that Law to be Common to all Nations and not Common to any City And yet than the which Law the Romans themselves in some Cases thought nothing more unreasonable But our Ancestors would not have even our Subjects bound to the Roman Laws as we see in the Ancient Records that Philip the Fair erecting the Parliament of Paris and Mompelier declared That they should not be bound unto the Roman Laws And in the erection of Universities the Kings have always declared That their purpose was to have the Civil and Canon Laws in them publickly professed and taught to make use thereof at their discretion but not that the Subjects should be any way bound thereto lest they should seem to derogate from the Laws of their own Countrey by advancing the Laws of strangers And for the same cause Alaricus King of the Goths forbad upon pain of death any Man to alledge the Roman Laws contrary to his Decrees and Ordinances which M. Charles du Moulin my Companion and Ornament of all Lawyers mistaking is therefore with him very angry and in reproach calleth him therefore barbarous howbeit that nothing was therein by Alaricus decreed or done but that which every wise Prince would of good right have decreed and done For Subjects will so long both remember and hope for the Government of Strangers as they are Govern'd by their Laws The like Edict there is of King Charles the Fair and an old Decree of the Court of Paris whereby we are expresly forbidden to alledge the Laws of the Romans against the Laws and Customs of our Ancestors Yea the King of Spain also hath upon Capital pain forbidden any Man to alledge the Roman Laws in confirmation of their own Laws as Oldrad writeth And albeit there was nothing in the Laws and Customs of their Country which differ'd from the Roman Laws yet such is the force of that Edict that all men may understand that the Judges in deciding of the Subjects Causes were not bound unto the Roman Laws And therefore much less the Prince himself who thought it a thing dangerous to have his Subjects bound unto strange Laws And worthy he is to be accounted a Traitor that dares to oppose strange Laws and strange Decrees against the Laws of his own Prince In which doings when the Spaniards did too much offend Stephen King of Spain forbad the Roman Laws to be at all taught in Spain as Polycrates writeth Which was more straightly provided for by King Alphonsus the Tenth who commanded the Magistrates and Judges to come unto the Prince himself and as often as there was nothing written in the Laws of their Country concerning the matter in Question Wherein Baldus is mistaken when he writeth the Italians to be bound to the Roman Laws but the French no otherwise than so far as they should seem unto them to agree with Equity and Reason For the one is as little bound as the other howbeit that Italy Spain the Countries of Province Savoy Languedoc and Lyonnois use the Roman Laws more then other People And that Frederick Barbarossa the Emperour caused the Books of the Roman Laws to be published and taught the greatest part whereof have yet no place in Italy and much less in Germany But there is much difference betwixt a Right and a Law for a Right still without command respecteth nothing but that which is good and upright but a Law importeth a Commandment for the Law is nothing else but the Commandment of a Soveraign using of his Soveraign Power Wherefore then as a Soveraign is not bound unto the Laws of the Greeks nor of any other stranger whatsoever he be no more is he bound unto the Roman Laws more then that they are conformable unto the Law of Nature which is the Law whereunto saith Pindarus all Kings and Princes are subject From which we are not to except either the Pope or the Emperour as some pernicious Flaterers do saying That those two viz. the Pope and the Emperour may of Right without cause take unto themselves the Goods of their Subjects Object 5 Forein Laws cannot be baptized with the name of the King's Laws without act of Parliament As to what is mention'd of baptizing Forein Ecclesiastical Laws by the name of the King 's Ecclesiastical Laws of England he seems still to mistake and puts baptizing by the name where it should have been confirmation by the name and that confirmation too to be given not by the Bishops but the
Parliament Besides there is not de facto that name given for the Ecclesiastical Court is kept in the Bishop's name and not in the King's name And the Bishop takes all the profits and not the King Fain he would mend the matter and says That a Leet is kept in the Lord's name and he hath the profits yet it is the King's Court. It might better been said it was once the King 's before he gave it or sold it to the Lord of the Leet as are many Lands not being Ancient Crown-Lands The King purchases but if he sell again such Lands for valuable considerations the propriety as well as the name of such Lands is then in the buyer and not in the King Therefore though he hath set out his Book as baptized both in Latin and English by the name of de jure Regis Ecclesiastico and of the King 's Ecclesiastical Laws yet with due Reverence to the opinion of so great a Father of the Law it may be said there appears none either to baptize or confirm the name nor any God-father to it but himself Neither will the Title of the King 's Temporal Laws set upon Magna Charta which gives that liberty to every Subject of Tryal of his Birth-right per legale judicium parium be consistent with the Title of the King 's Ecclesiastical Laws which take it away and give it to a Trial by Certificate of the Bishop Object 6 It is again by Coke alledged and Precedents cited That Edward the Confessor William the First Henry the First Henry the Third Edward the First Edward the Second and all English Kings have Govern'd and Ruled both the Kingdom and the Holy Church and have given Jurisdiction to Abbots Priors and Bishops and have granted prohibitions when they transcended the bounds of their Jurisdictions and that Reges sacro oleo uncti sunt spiritualis Jurisdictionis capaces but still this is nihil ad rhombum nor pertinent to make good the Name or Title he hath set his Book of the King 's Ecclesiastical Laws For there is a great difference if he had Entitled it de jurisdictione Regis Ecclesiastica for the King's Jurisdiction and the King's Laws are clean divers things And there is a great difference where he grants Jurisdiction to Ecclesiastical Persons and where he grants them by what Laws they shall exercise that Jurisdiction for the King 's of England have Anciently granted Jurisdiction and Commissions to Ecclesiastical persons as Bishops and Priests to be Judges in the King's-Bench Chancery and other Courts yet could they not grant them power to judge by any other Laws than the Laws of England except by Act of Parliament Then as to granting prohibitions where the King had not or could not by Law grant them Jurisdiction proves nothing that any King did or could by Law grant them Jurisdiction of general Bastardy without Act of Parliament or that there was any Law or Act of Parliament which gave them Jurisdiction of general Bastardy because the King's Courts durst not grant prohibitions for general Bastardy For in those superstitious times neither the King nor Judges dar'd provoke their Excommunication and therefore at the making of the Statute of Merton when the contest was between the Ecclesiastical and Secular Power which of them should give the Law to Marriage The Temporal Judges for fear of their Excommunication took only like the Jackal what the Lion refused and left them which they called special Bastardy So quod non capit Christus capit fiscus which is intended of the false Christ for the true Christ took nothing from it but paid tribute to it Besides if many Jurisdictions should judge by other Laws this would be destructive both to the King and Subject Though the King therefore give the Sword he cannot change the Ballance as is in effect confess'd by Coke himself 3 pt Inst fol. 120. in his Exposition of the Statute 27 E. 3. of Praemunire where he saith The right of King and Subjects not triable per alias Leges or aliud Examen then the laws of the Land If Freehold and Inheritance Goods or Chatâ—les Debts or Duties wherein the King and Subjects have a right or property should be judged per aliam legem which he mention'd before to be Civil or Canon Law And other Trial which he makes to be any Trial except by Jury or be drawn ad aliud examen These three mischiefs endeavour'd to be prevented in the said Statute would necessarily follow viz. Disherison of the King and his Crown the Disherison of all his People and the undoing of the Common Law And fol. 121. he farther saith Some have made a question whether since the Ecclesiastical Jurisdiction was acknowleged in the Crown an Ecclesiastical Judge holding Plea of a Temporal Matter belonging to the Common Law doth incur the danger of a Praemunire Though hereof is no question at all yet lest any Man might be led into an Error in a Case so dangerous we will clear this point by Reason Precedent and Authority The Reason holdeth still to draw the Matter ad aliud examen c. And he citeth before several Precedents and says The reason of all these Cases is because it drawes matters Triable at Common Law ad aliud examen and to be discussed per aliam legem Peter du Moulin that famous Protestant Divine writes That there was a a Book printed in the former Age entitle The Canons of the Apostles Anti-Christian whereby the Temporal power of the Pope is wholly taken away And the sixth Canon expresly forbids a Bishop to meddle in Civil affairs And in the 84th Canon are these words A Bishop that meddles in War or seeks to obtain these two things that is to say the Empire of Rome and the Sacerdotal Government let him be deposed for the things of Caesar are to be given to Caesar and the things of God to God And that one Arnold who Preached this Doctrine That the Pope had no Jurisdiction nor any thing to do with the Temporal affairs with great applause was in the year 1155 made a Martyr and most cruelly burnt at Rome by the order of Pope Adrian And this agrees with the Testimony of Christ himself Bishops Judg. not only as to Jurisdiction of Marriage and Legitimation but all other matters wherein Temporal propriety comes in question that he refused the Jurisdiction of it as appears Luk. 12.13 And one of the company said unto him Master speak unto my Brother that he divide the inheritance with me And he said unto him Man who made me a Judge or Divider over you It appears therefore the Episcopal Jurisdiction of judging or dividing Temporal goods in the Spiritual or Ecclesiastical Courts came not from Christ but was usurped by Anti-Christ by force of Fire and Faggot and is from him derived to Bishops and Ecclesiastical Courts to the destruction of the rights of Princes and the liberty and propriety of the people
them cleérly frustrate and dissolved Further also by reason of other Prohibitions then God's Law admitteth for their lucre by that Court invented the dispensation whereof they always reserved to themselves as in kindred or affinity betweén Cousin-germans and so to the fourth degreé carnal knowledge of any of the same kin or affinity before in such outward degreés which else were lawful and be not prohibited by God's-Law and because they would get money by it keep a reputation of their usurped Iurisdiction whereby not only much discord between lawful married persons hath contrary to God's ordinance arisen much debate and suits at Law with wrongful vexation and great damage of the Innocent party hath been procured and many just Marriages brought in doubt and danger of undoing and also many times undone and lawful Heirs disherited whereof there had never else but for his vain-glorious usurpation beén moved any such question since freédom in them was given us by God's Law which ought to be most sure and certain But that notwithstanding marriages have been brought into such an uncertainty thereby that no marriage could be surely knit and bounden but it should lye in either of the parties power and arbiter casting away the fear of God by means and compasses to prove a pre-contract a kindred and alliance or a carnal knowledge to defeat the same and so under the pretence of these allegations afore rehearsed to live all the days of their lives in detestable adultery to the utter destruction of their own Souls and provocation of the terrible wrath of God upon the places where such abominations were used and suffer'd Be it therefore Enacted by the King our Soveraign Lord the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the Authority of the same That from the first day of the Month July next coming in the year of our Lord God 1540. All and every such Marriages as within this Church of England shall be Contracted betweén lawful Persons as by this Act we declare all Persons to be lawful that be not prohibited by God's Law to marry such Marriages being Contract and Solemnized in the face of the Church and Consummate with Bodily knowledge or fruit of Children or Child being had therein betweén the parties so married shall be by Authority of this present Parliament aforesaid Deémed Iudged and taken to be Lawful Good Iust and Indissolvable notwithstanding any pre-contract or pre-contracts of Matrimony not Consummate with Bodily knowledge which either of the parties so married or both shall have made with any other person or persons before the time of Contracting that Marriage which is Solemnized and Consummate or whereof such fruit is ensued or may ensue as afore and notwithstanding any Dispensation Prescription Law or other thing granted or confirmed by Act or otherwise And that no reservation or prohibition God's Law except shall trouble or impeach any Marriage without the Levitical degrees And that no person of what estate degreé or condition soever he or she be shall after the first day of the Month of July aforesaid be admitted to any of the Spiritual Courts within this the King's Realm or any his Graces other Lands and Dominions to any Process or Plea or Allegation contrary to this aforesaid Act. 1. Here it appears what a necessary stroke this Act gave against the usurped power of Ecclesiastical Laws and Jurisdiction in this and other points of Marriage forbidding any Spiritual Courts within this Realm or any his other Lands and Dominions to admit any Process Plea or Allegation contrary to this Act. And although hereby one of the heads of Ecclesiastical Jurisdiction was as is said of the Beasts Rev. 13.3 as it were wounded to death yet so great was the subtilty of the Serpent that the Ecclesiastics soon after by abusing the minority of that most pious though young King Edward the Sixth got all what the wisdom and courage of his Father had Enacted against them repealed by the Son 2 3 Ed. 6. cap. 23. Edward the Sixth abused by Papists in his Minority to repeal his Father's Act of Precontracts And thinking themselves therein not sufficiently secure they again procured the same to be repealed by 1 Eliz. 1. In which repeals I can see nothing but a Papist Plot against them both to revive those Ecclesiastical Laws by their own Authority against themselves which might have yielded most dangerous pretences against their own Legitimations and Marriages and Issue if they had happen'd to have had any For certainly no Marriage or Issue can be secure or certain if any fraudulent person may secretly pre-contract or pre-copulate with any vile person and take Bonds of him or her to release the same upon request and then marry another person Ignorant and Innocent and have Children procreate between them and then cause the party who had the pre-contract or pre-copulation to sue and obtain a Divorce against the Innocent person to be Divorced and Children Bastardized and Disinherited and then to give a release to the party conspiring in the fraud How is it possible to avoid this wickedness if pre-contract or pre-copulation should be allowed a sufficient cause to dissolve Marriage Consummate by the Birth of a Child And how is it possible propriety to be if a distinction be not kept between it and contract and between obligation and possession according to the old Rule of Law Rem Domino vel non Domino vendente duobus in jure est potior traditione prior And the Rule of the Civil Law and fundamental of all Nations who have propriety Obligatio non impedit translationem Dominii sed translatio Dominii praecedens impedit obligationem l. si quidem 1. C. de donat inter virum Notwithstanding all which Reasons preceding and likewise those in the mention'd Act of H. 8. The Ecclesiastics though straining their Wits and Eloquence to the highest in the Act of repeal by Ed. 6. yet cannot alledge the least reason except only this That if pre-contract should not dissolve Marriage the parties might part from one another at the Church door and then the Wedding Dinner would be spoiled which surely may be sufficiently and over satisfied by recompence in value were it a Half-Crown Ordinary But a lost Virginity to an Innocent Woman who was married bona fide and knew nothing of this pre-contract and her Child can never be repaired if the Marriage be dissolved Nulla reparabilis Arte Laesa pudicitia est deperit illa semel Propert. The Act of Repeal of the said most excellent Law of Henry the Eighth against pre-contracts follows 2 3 Ed. 6. cap. 23. 2 3 Ed. 6. cap. 23. WHereas in the 32 year of the Reign of the late King of famous memory King Henry the Eighth Because that many inconveniences had chanced in this Realm by breaking and dissolving of good and lawful Marriages yea whereupon also sometimes Issue and Children had followed under
devour her Child as soon as it is born The People who are Terrae Filii to be the Earth helping the Woman Prelacy being wroth and going to make War with Dissentient Protestants to be the Dragons being wroth with the Woman and going to make War with the Remnant of her Seed which keep the Commandments of God Old Teslament false translated by Bishops in 848 places and have the Testimony of Jesus Christ And that these are not the only false translations which Bishops make of the Scripture appears by the great Linguist Broughton who in his Advertisements of Corruptions affirms to the then Bishops of England That their publick translations of Scriptures is such as that it perverts the Text of the Old Testament in no less then Eight Hundred Forty Eight places and causeth Millions to reject the New Testament and to run into Eternal Flames Sixthly To shew that Coke needs no other to confute him in the signification of Nothus not to be a Child born out of Wedlock but a plece of his own Rhime I shall recite it which is by him set down Manseribus scortum notho Moechus dedit ortum and is a false Verse for No in Notho is short which might happen by some Error of his Scribe but the true Verse is in Calv. Lex whence I suppose he might have it Sed Moecha Nothis dedit ortum which Moecha signifies an Adulteress which she cannot be unless she is a Married Woman therefore it is plain the Rhime it self confutes him that Nothus is not a Child born out of Wedlock but in Wedlock which is unanswerable as to him because ex ore suo though not as to others who are on better reasons unanswerably answer'd before They corrupt the Press both as to Scripture and Law and interdict Protestants to write against Papists or answer them Act of Parliament against Lollards counterfeit by Bishops Coke 3. part 40. saith There was a Statute supposed to be made 5. R. 2. That Commissions should be by the Lord Chancellor made and directed to Sheriffs and others to Arrest such as should be Certified into the Chancery by the Bishops and Prelates Masters of Divinity to be Preachers of Heresies and notorious Errors their Fautors Maintainers and Abetters and to hold them in strong Prison until they will justifie themselves to the Law of the Holy Church By colour of this supposed Act certain Persons that held Images were not to be worship'd c. were holden in strong Prison until they to redeem their vexation miserably yielded before these Masters of Divinity to take an Oath and did swear to worship Images which was against the Moral and Eternal Law of Almighty God We have said by colour of the supposed Statute c. not only in respect of the said Opinion but in respect also that the said supposed Act was in truth never any Act of Parliament though it was Entred in the Rolls of Parliament for that the Commons never gave their consent thereunto And therefore in the next Parliament the Commons prefer'd a Bill reciting the said supposed Act and constantly affirmed that they never assented thereto and therefore desired that the supposed Statute might be aniented and declared void For they protested that it was never their intent to be justified and to bind themselves and their Successors to Prelates more then their Ancestors had done in times past And hereunto the King gave his Royal Assent in these words Ypleist au Roy. And mark well the manner of the penning the Act for seeing the Commons did not assent thereunto the words of the Act are It is Ordained and Assented in this present Parliament That c. And so it was being but by the King and the Lords It is to be known that of ancient time when any Acts of Parliament were made to the end the same might be published and understood especially before the use of Printing came into England the Acts of Parliament were ingrossed into Parchment and bundled up together with a Writ in the King's name under the great Seal to the Sheriff of every County sometime in Latine and sometime in French to command the Sheriff to proclaim the said Statutes within his Bailwick as well within Liberties as without And this was the course of Parliamentary Proceedings before Printing came in use in England and yet it continued after we had the Print till the Reign of H. 7. Now at the Parliament holden in 5. R. 2. John Braibrook Bishop of London being Lord Chancellor of England caused the said Ordinance of the King and Lords to be inserted into the Parliamentary Writ of Proclamation to be proclaimed amongst the Acts of Parliament which Writ I have seen the purclose of which Writ after the recital of the Acts directed to the Sheriff of N. in these words Nos volentes dictas concordias sive ordinationes in omnibus singulis suis Articulis inviolabiter observari tibi praecipimus quod praedictas concordias sive ordinationes in locis infra Balivam tuam ubi melius expedire volueris tam infra libertates quam extra Publice Proclamari teneri facias juxta formam Praenotatam Teste Rege apud Westm 26. Maij. Anno Regni Regis R. 2.5 But in the Parliamentary Proclamation of the Acts passed in Anno 6. R. 2. the said Act of the 6. R. 2. whereby the said supposed Act of 5. R. 2. was declared to be void is omitted and afterwards the said supposed Act of 5. R. 2. was continually Printed and the said Act of 6. R. 2. hath been by the Prelates ever from time to time kept from the Print A Counterfeit Act Printed by Bishops against Protestants What English Protestant can read this without horror what doth he not observe it why 't is that Counterfeit Act of Parliament 5. R. 2.1382 whereby Bishops usurp to be Judges of the Souls and Consciences of Protestants and to put them in strong Prison till they conform and submit to the will of the Bishop 't is that Counterfeit Act whereby they usurp to be Judges of Heresie and to make Protestants Hereticks when they please 't is that Counterfeit Act whereby they have compell'd the Subjects to swear to worship their Idols 't is that Counterfeit Act whereby they have dragged so many Pious Martyrs to the Stake and burnt them filling the whole Land with fiery Furnaces 't is that Counterfeit Act by which the Bishops have usurped Power to destroy Religion Liberty Propriety and Lives of all Protestant Subjects at their pleasure 't is that Counterfeit Act which was never assented to but disclaimed detested abrogated and declared null and void by the House of Commons 6. R. 2. Anno 1383. and hath been yet most presumptuously caused to be printed as a valid Act by the Bishops being Masters of the Press and the true Act of Abrogation 6. R. 2. Whereon all the Subject hath depends most wickedly suppress'd and never Printed Coke 2.
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
in the said Chancery-Orders Printed 1669. presumes to do in the Court of Conscience what was never heard of to be done in the Courts of Turks Infidels or the most Barbarous Judicatories in the World for he is not ashamed publickly to give License to Cursitors and their Clerks to commit Crimen Falsi which we call Forgery by Antedating Writs taking them out of Returns past or of a former Term by reason of which Forgery of Writs and Forgery of Returns Antedated Capiases Proclamations Exigends and Outlawries Antedated have been likewise Forged and Thousands of Poor men unjustly cast in Goals and miserably undone without any Summons or Hearing and these are likewise the damnable effects of the Chancellours Writs by which as by others the Plaintiffs so here the Defendants are destroyed without Hearing and certainly these Crimes of Antedating and Forgery of Judicial Acts though here Licensed by Orders of Chancellors and Protected by Courts by not Licensing Averments against them are by the Civil Law and Laws of Scotland and of many other Nations both of these and Instruments Death and even by our own the imbeselling of a Record by a Clerk and Counterfeiting of Fines is Felony and if the second time so is the Forgery of Deeds Writings and Court-Rolls and deservedly the Offender better deserving death than a Robber on a High-way and why any Crimes of this Nature should be publickly Licensed to the Ruin of all Truth and Justice by any Chancellour in his Chancery Orders is very strange the mischievous effects of which said Attachments on Affidavit and Antedating Writs and Forgery of Outlawries are notoriously known and not complained of here without good Cause and Testimony and some particular experience of my own to my loss who have as well as others suffer'd in an high degree by the false Affidavit of a Fellow who Subscribed and Swore it by a false name and not his own and likewise procured a Forged Outlawry antedated against me It belongs not to a Chancellour to be a Judg of Equity in England 5. It belongs not to the Chancellours Office to be a Judg of Equity or to make Orders Edicts Laws or Writs and thereby to Imprison the Persons and dispose of the Lands and Goods of the Subjects Arbitrarily and at his Pleasure Coke 4. part 82. saith That all Statutes which give Authority to the Chancellour to determin Offences in Chancery are to be intended only in the Ordinary Court there which proceeds in Latine and is Secundum Legem c. and not in any Extraordinary Court which proceeds in English Secundum Aequum bonum and 37. H. 6.14 27. H. 8.18 it is Resolved That the Court of Chancery Proceeding by English Bill is no Court of Record and therefore it cannot bind either the State of the Subjects Lands or the Property of his Goods or Chattels and therefore they there admit he may Imprison the Person Chancellour cannot bind the Subject's Goods not Persons which is not only a Non sequitur but a contrary conclusion follows on it for if he cannot bind the Subjects Goods à Fortiori he cannot bind his Person For the Life is more than Meat and the Body is more than Raiment Luke 12.23 And though those Common Law Judge of H. 6. and H. 8. so sordidly deliver'd the Subject Prisoner to the Chancellour so as they might keep his Lands and Goods to themselves yet had they no more Law or Right to do it than they had to deliver him Prisoner to the Turks or to send him to the Barbado's for the Subject is no Slave neither ought he to be given or sold for one without his own Assent by his Representative in Parliament and having so good a Protection against the Chancellours and Common Law Judges and the Orders and Writs of both as Magna Charta and the Petition of Right both for his Lands Goods and Person they ought to shew some greater Laws than their Writs and Orders of Courts or Forgeries of Clerks before they presume to invade either 6. There being no Law in England which ever Ordained a Chancellour to be a Judg of Equity or to make Edicts or Orders concerning the same he can pretend no Title thereto unless from the Laws of France and to that effect Polydor Virgil saith The Chancery came in with the Conquest to which though my Lord Coke saith Perperam Erravit because the Mirror saith The Constitutions of the ancient Kings were that every one should have out of the Chancery of the King a Writ Remedial for his Flaint without difficulty yet he himself seems to be in the Error and not Polydore for though the name of Chancellour and Chancery was before the Conquest and divers other Countries use the name of Chancellour as well as England yet the greatest part of the Writs came from Normandy and are mention'd in their Customary as who will peruse it shall find but as to the Writ of Subpoena Centum librarum and Arbitrary Power of the Chancellour and to be a Judg of Equity came first from the Conquest and was never used before nor did it belong to the Chancellour's Office either of England or Scotland that having other employment and more than a Chancellour could do though he never troubled himself with Judgment but left the same to the Judges to whom the King Delegated the cause by Writ and this the very name of Chancellour testifieth who was Originally no other than a Master of Requests to the Prince whom he served and on Petitions deliver'd to him by the Subjects if unfit to be Granted he strook cross lines over them like Cancelli or Lettices by which he Cancell'd them and thence had his name of the Canceller or Chancellour as Turn lib. 11. advers c. 25. and not according to that Fictitious Verse of his Power Hic est qui Leges Regni Cancellat iniquas For when was ever any Chancellour in England allowed to Cancel any Roll or Act of Parliament And when these Petitions for Justice were deliver'd by the People to this Master of Requests call'd the Canceller of such of them as were Evil such as were Just he Cancelld not but on behalf of the Petitioner Granted the Princes Rescript or Warrant to the Praeses Provinciae where the cause of Action arose or the Defendant lived for Actor Sequitur Forum Rei which Rescript or Warrant we now call a Writ containing in it self 1. A Questus est nobis a short recital of the Complaint 2. Si A. fecerit te securum a taking Security or Pledges of the Plaintiff de Prosequendo 3. A Summoneas or Summons of the Defendant to appear before the Prince himself or such Judges as he Delegated though out of the Province or County where he lived which was the Reason of taking Pledges of the Plaintiff because he made the Defendant appear many times Hundreds of Miles from his Home when he might in those days implead him before the President
or Sheriff or Lord of the Barony in his County unless he excepted Partiality or other just cause against him 4. A taking of Pledges of the Defendant to appear 5. To make Return of the Writ and left Writs should be Counterfeit the Chancellour was Keeper of the Seal and Sealed them It appears by the Lex Julia de repetundis Chancellour not to sell Writs and Copies of Bills and Answers that the Master of Requests or Canceller was not to take any Fees for these Writs for giving or not giving a Judg out of the Province or County where the Defendant lived for it was a great vexation and oppression of the People to be Summon'd out of the Provinces on malitious Suggestions without cause and our own Parliaments in England have often complained against the same oppression here by the Pope on whose Citations and false Suggestions without cause men were compell'd to give personal Appearances at Rome as many and as often as he pleased if any would but buy there of his Officers a Citation and to prevent this vexatious exaction of Appearances on Writs of men out of their own Counties besides the requiring of Pledges on all Common Law Writs and the enjoining of Pledges to be taken in the Chancery-Writ of Subpoena as in the Lex Julia so is it mention'd in Magna Charta Nulli vendentus nulli negabimus Justitiam vel Rectum which is intended of a Writ of Right and all other Writs whereby Right is obtained for if the Chancellour were not to take Fees and sell his Subpoena's and other Writs he would not so often by them make men Travail thorough Nine Shires to Westminster when they may have better Justice done at home in their own County on no other cause than Fictitious and Malitious Suggestions of the Plaintiff and that he may take a Fee for the same and he would Cancel according to his Office more Petitions and Bills than he would Grant but assoon as Chancellours took Fees for Writs which Sale of Right 't is likely as Polydore says came from the French then no Suit could be begun without Writ all were driven to Westminster Parties Witnesses and Juries unnecessarily and to no purpose but to inrich the Judicatories and undo the People in like manner the Plaintiffs and Defendants ought to give one another mutually Copies of their Bills Declarations and Pleas at the expenses of the Giver which is very small and easie to the Parties and not to be compell'd to buy them of the Chancery or Common Law Officers so the Chancellour had neither his Jurisdiction to Judg of Equity or his Sale of all the Judicial Parts of the same and of the Law with it from the Law of England but A-la-mode de France from the Conqueror till Magna Charta abolished his Tyranny by the Judgment of Peers and of his French Comtes by the 28. E. 1. cap. 8. by which Act that gallant King grants every County the free Election of their own Sheriff after which the Land was free from the Chancellours Troubling men out of their own Counties by his Subpoena's till H. 5. Conquer'd France by which as is usual in other Conquests some Touch of the Diseases and Vices of the Conquer'd will be return'd on the Conquerors and accordingly in the time of his Son H. 6. the Subpoena and a Chancellour with a Pretorian Jurisdiction pretended of Equity with Power of making Laws Edicts and Chancery-Orders and Forms of Writs and to Sentence above all Appeal all which Powers belonged to the Roman Pretor of which the French Chancellour was the Ape and Ours of the French and this pretended Pretorian Jurisdiction ever since hath grown so much A-la-mode partly by making Bishops Chancellors who pretended Supremacy in all matters of Conscience and had in their hands amongst the Superstitious the flaming Sword and Thunder-bolt of Excommunication partly by their Power overtopping and overawing the Common Law Judges and partly by flattering the People with doing Justice in the English Tongue which was very grateful to them and would be as grateful now in the Common Law Courts if they could get it the Chancellours contrary to the greatest Fundamental Laws and Acts of Parliaments of the English introduced on them a most lawless Arbitrary Power and Servility of a Foreign Nation to dispose of their Lands Goods Persons Liberty and Propriety at their pleasure And what is more have assumed like the old Romish Pretors the Power of making Laws Edicts Forms Writs Obligatory to the Subject's Persons Lands and Goods for Coke on the Question In what Text the Common Law is to be found saith In Forms of Writs and Forms of Entries in Courts of Records And Bracton saith Breve ad similitudinem Regulae Juris Formatum So who assumes the Power of making Writs Judicial Edicts Forms and Orders assumes the Legislative Power notwithstanding and above Acts of Parliament to dispose of the Subject's Liberty and Propriety at pleasure yet this have Chancellours done Forming divers Writs in the Register out of their own Heads Lamb. Archeion which always are Formed for the greatest Profit of the Clerks and Courts which make them and not of the People and Episcopal Chancellours have so far in time of Popery deceived Parliaments that Westm 2. cap. 24. gives the Clerks of the Chancery as good as Power to make what Writs they will and the pretence is insinuated by the Clerks De caetero non recedant querentes à cur ' Regis sine remedio or Ne Curia Regis desiceret in Justitia exhibenda whereas none who understands the least part of the Forms of Judicial Proceeding there is who doth not know that the Kings Court if he please may do far better Justice if all the new Writs made by Clerks and all the old Writs in the Register were made a Bonfire all together and none but Copies of Declaaations served without them then 't is possible to do with them which Del gation of Power to Clerks to make Writs must be void for the making of Forms of Writs Edicts or Orders is an Act of Legislation and to give Votes in Legislation is a Personal Office of Trust reposed by the People in their Representative Elected by them and by the known Law no Office of Trust can be Assigned Granted over or Delegated if the Parliament therefore please to enact themselves any Judicial Forms or Orders of Proceeding they ought to be obeyed as Laws but it would be a great injury to the People if they should Grant over the Office of Trust in them to a Chancellour and Clerks never Elected or Intrusted by the People Chancellour of England or Scotland no Pretor Let a French Chancellour be therefore what he will 't is clear no English Chancellour ought to be a Pretor Judg of Equity maker of Laws Edicts Forms or Orders of Judicial Proceeding nor any Chancellour of Scotland the full of the matters of both whose Offices though they may differ
with them and were indeed a most imperfect constitution of Defensors of Liberties against Senators permitted to be Hereditary and was no way to be remedied unless the People had taken on them the Election of the Senators as is now done by such Nations as have the Liberty of Parliaments but if Two dissentient Negatives or Houses or Parliaments are joined together in one House where the matter is to be carried by Plurality of Votes there dissentient opinions of the several Members are so far from hurting the Publick as they do the same much Good First by the contrary Dispute of the Question the Truth is the better understood Secondly When two Extremes contend they commonly moderate one another and produce a more temperate Sentence than if the whole Senate were all of the same mind without any Faction so as long as Cato and Caesar made Orations one against the opinions of the other in the Senate it mitigated them to moderation and it was the Contention in the Field and not in the Senate caused so much mischief to the Publick which could not be avoided in such a Senate which was no equal Representative Elected by the People but some Senators so disproportionable in Power as Caesar and Pompey were to the rest Strength of Union 13. Though Confederacy of Foreign Princes ought not to be neglected yet the Confederacy of the Three Parliaments by Union in one House is a far greater assistance than of any Three Foreign Princes Confederated and living in Foreign Palaces and such Three Protestant Parliaments in one House and under one Protestant King are by Gods help of greater Strength and Councel than any Three Catholick Kings and the Pope with them if they should wrongfully confederate against the Protestant Examples of Un on of Parliaments 14. All these and no question more dangers of Disunion and Benefits of the Union of Parliaments were foreseen to the Wisdom of King James of famous memory and how zealously the desire of such an Union was press'd on him by him between England and Scotland appears by the Act 1. Jac. cap. 1 2. And thereby Commissioners of each Nation were appointed to meet and Treat and to reduce their Dâ—ings therein to Writings or Instruments Tripartite every part to be subscribed and sealed by them and one part to be deliver'd to the King the other to the Parliament of England the other to the Parliament of Scotland this was promoted several times in the House and vigorously Seconded by many Noble Protestant-Patriots after which as appears Coke 4th part 347. there started a question amongst the Commissioners whether there could be made a new Kingdom of Great Britain before there was made an Union of Laws which Question was by Command of the King refer'd to all the Judges of England in Trinity Term Anno 2. Jac. who unanimously Resolved Coke being then Attorney General That Anglia had Laws and Scotia had Laws A ridiculous Answer of Judges touching Union of Kingdoms but this new Erected Kingdom of Britannia had no Laws and therefore where the Forms of all Judicial Proceedings of England are Secundum Legem consuetudinem Angliae it could not be alter'd Secundum Legem consuetudinem Britanniae an Answer fitter for Protonotaries than Judges as if no Union were possible to be made of Kingdoms but by Rastall's Book of Entries whereas one word of a Nuper would have salved this horrible objection and but two lines of a Proviso in the Act of Union might have made the Style of their Formality what they would have had it but this unlucky Pedantry of Theirs was a fatal Scourge to Great Britain for in all humane probabilities if there had been then made an Union of Parliament the late Bloody Intestin Wars had never been 3. Jac. cap. 3. A Recital is made of the long and worthy Labours of the Commissioners of England and Scotland and how albeit all things had been by them fully and effectually pursued and accomplished c. Yet for that divers other matters required present Dispatch by the Parliament and the matters concerning the Union might be consider'd as well any other Session therefore the same was defer'd for that time Anno 4. Jac. 1. An Act is made for Repealing certain Acts of Hostility in former Ages made between the two Nations where the Commissioners lost all the Pains they had taken to the discouragement of any other who should thereafter attempt the like so by the Power and Subtlety of the Popish Episcopal Party and Lawyers all whose Interests a Reformation of Laws for Britannia would have crossed the whole business and Attempts of Union have been ever since obstâ—ncted As for Examples In former Histories we find none more free than the Romans to Naturalize their Associates and to make the Natives of the Provinces Citizens of Rome The Grand Seignior takes into his Council the Natives of several Kingdoms yea though Christians when once Educated in his Religion The several States of Greece had not been able to have subsisted against the Persian had they not United themselves in one common Council of State though their Laws and Commonwealths remained several The Netherlands had been never able to have subsisted against the Spaniard had not the Provinces been United in one Staadt-House and Common Council yet is not that Union perfect they remaining still under several Laws and Customs and in the nature of several Commonwealths and therefore not impossible to be again divided as the Grecian States thereby were So were it impâ—ssible for the German Empire to subsist against the Turk were they not United in one Supreme Dyet and Common Councli for a Parliament of Kings in person as the Electors are in Power is better than none at all and better than a Confederacy of Kings by Proxies they remaining in their several Palaces yet in many other respects the Union being of the Prelates and Princes and not of an equal Representative of the People it is liable to perpetual dangers of Civil Wars and the Dividing of one Prince against another who may perhaps as the Captains of Alexander the Great and the Italian Princes in the end set up every one for himself there being nothing to hinder but the Terror of the Neighbouring Turk whereas if the Union were constituted of an Emperor and Parliament equally Elected by the People the Empire were invincible for the Prince were then but one and the Senate but one but this is impossible to be performed except in Protestant Dominions for then must the Pope and Prelates be Cashier'd which no Catholick Prince can or dare attempt How great thanks do we therefore owe to God who hath vouchsafed Protestants so great a Privilege to Unite all their Parliaments if they in blindness and stubborness neglect or resuse not so great a Mercy as perhaps may not again be so easily offer'd The Cantons of the Swiss could not subsist without being United in a Common Council
for State-Assairs So of the Grisons Yet do the Cantons remain in the nature of several Commonwealths with several Laws and Customs which Union is very imperfect Livy lib. 2. complains of this defect of Union of Councils in Rome and saith Profecto si essent in Republica Magistratus nullum futurum fuisse Romae nisi publicum consilium nunc in mille Curias Concionesque cum alia in Esquiliis alia in Aventino fiant Concilia dispersam dissipatam esse Rempublicam And by this doth Tacitus confess it was that Rome Conquer'd Great Britain Nec aliud adversus validissimas gentes pro nobis utilius quà m quod in commune non consulunt rarus duabus tribusque Civitatibus ad propulsandum commune periculum conventus ita dum singuli pugnant Vniversi vincuntur Neither saith he was there any thing so profitable for us against the most valiant Nations as that they had no Common Council a rare matter it was amongst them to have a Convention of Two or Three Cities against the common danger so while they every one fought single they are all Conquer'd Whereas if Great Britain had been then united under one King and one Parliament of the whole Island they perhaps might have as well said of his second Landing as of his first Territa quaesitis ostendit terga Britannis So doth Justin mention of the States of Greece every one of them had at last their Councils apart and fought single whereby one after another they were all overthrown What hath United the Heptarchy of the Saxons and the mixture of Danes inseparably but the equal Mission of their Representatives to the same Parliament and what did Unite the Noble Remainder of Britains to England but the Statute of 27. H. 8.26 Enacting That all Persons born in Wales should enjoy all Liberties Privileges and Laws as other Subjects in England do and should send their Knights and Burgesses to the same Parliament with them The Glory of a King is the multitude of his People and what more Glorious for a King who hath the Royal English Scotish Irish and British Blood United in him who is the Head than to have the same United in his Parliament who is the Body Let it not offend if I mention here the late Experience of Union of the Three Parliaments in one House by the late Usurper seeing we are commanded to learn Wisdom though from the Serpent and if he under so great disadvantages of Opposition made great Benefit the lawful Prince may make far greater thereby and his Subjects likewise by his Favour participate of the same I cannot deny that it was my Fortune though I never sought it to be chosen for a County and to serve in that great Convention at Westminster Anno 1656. called then a Parliament wherein the Parliaments of England Scotland and Ireland were Convened and United in One with the same facility as they are Convened to sit in Three Places and there being then a War designed against Spain it was wonderful to see with what Expedition and Courage all things were moved towards the Design and what an Endearment it was between the Three Nations to meet be acquainted eat drink and converse together about the Common Concernments Having consider'd so far of the great Benefits of an Union of the Three Parliaments of the Three Kingdoms in One it may not be amiss next to consider the Requisits necessary to perfect the same 1. Whether an Union of Crowns be necessary to perfect an Union of Parliaments and Kingdoms It seems for the Affirmative 1. Because where the Natural Person of a King is One if the Politick Person or Capacity is not made One the one Politick Capacity may be divided against the other in the same Natural Person as on the Succession of King James to Queen Elizabeth the Queen of England had declared War against the King of Spain the King of Scotland was in Peace with them so in the diverse Rights of Two Crowns there was War and Peace at one time between the same Persons the like Doubts may arise Whether the Royal Assent may pass contrary Politicks Acts and Laws in the Parliament of one Nation to what he hath pass'd in the other in reference to the contrary Rights of each Crown Whereas if both are consolidated and made one no contrariety of Acts can happen 2. It is as dangerous to have Two Crowns as Two Marble-Chairs for they may be kept in several places and the more easily may an Usurper happen on the possession of one of them and the Vulgar be deluded to think Possession of those Signs of Supreme Honor to be equal to the Right and besides that a Fatality will follow them 3. Seeing it hath pleased God to make the Head of the Three Kingdoms One men ought to follow his Example and make the Crowns One 4. The continuance of several Crowns is apt to continue a perpetual memory of Hostilities between the Kingdoms 2. Whether an Unity of Protestant Churches is necessary to an Union of Protestant-Kingdoms It seems for the Affirmative Because if Protestant-Churches divide one against another the Kingdoms will be a Prey to the Papist and the Protestant will have none to Unite 3. Whether permission of Protestants to Excommunicate Protestants is consistent with the Unity of Protestant-Churches Neg. If the Pope Excommunicate Protestants it Unites them the firmer but if they Excommunicate one another they denounce War and destroy one another with their own hands and leave the Spoils to be divided by the Pope An Elegy on Protestants in the late Civil Wars Excommunicating Protestants LVgeat in trisidis jam moesta Britannia flammis Et doleat jam fulminibus percussa trisulcis Intonuit falsus nebulosa Tibride Petrus Et Magicis stolidum perterruit Artibus Orbem Piscator Twedae retonat multisque cachinnis Rupibus ingeminans sua fulmina misit ab Altis Becketi Lemures contra hunc torsere minaces A Thamisi gelidas Vulcania tela per auras Heu non Oceanus circum vaga Littora fusus Nec freta compescant tantis ardoribus ignes Risit Romanus Tarpeia Rupe Tyrannus Cumque suis inquit sese immisere Gebennis Pontifices Britonum per mutua vulnera tandem Ne sic deficerent inferno gurgite flammae Ipse super terram viventes igne cremabo Ecce jocum mintrat mus rodens Rana coaxat Et cum limosis ineunt certamina juncis Milvus spemque suam motis circumvolat alis Ipse paludosam sic vellem carpere Ranam Et sic ridiculum vellem discerpere Murem Englished LET Britain mourn who burns in triple Fires And struck with threefold Thunder-bolts expires A Peter false from Tyber in a Cloud By Magick Art did Thunder it aloud The Fisher-man of Tweed with many Mocks Return'd his Thunder double from the Rocks Proud Beckets Ghost ' gainst him from Thames broke forth And with Vulcanian Darts fired the North. What Ocean which her wandring Shores doth drench Or
his direct Judge next the Pope and without Consent of his fellow-Bishops who then all arose and humbly desired the Kings Clemency in his behalf but finding him Resolute they took away their fellow-Bishop from the Bar and delivered him to the Custody of the Arch-Bishop of Canterbury till some other time the King should appoint for his answer to what he was charged withal Shortly after he was again taken and Converted as before which the Clergy understanding The Bishops rescue a Traitor-Bishop from the Bar of Justice the Arch-Bishop of Canterbury York and Dublin and Ten other Bishops all with their Crosses erected went to the place of Judgment and again took him away with them Charging all men on pain of Excommunication to forbear to lay violent hands on him with which audacious Act the King was much displeased and presently Commanded inquiry to be made Ex officio Judicis Concerning those objections against the Bishop whereto he Refused to appear and answer and he being found Guilty of the same Judgment was passed against him as Contumaciously absent and thereupon all his Goods and Possessions were seised into the Kings hands this Act Lost him the Clergy and added Power to the Discontented Party which by Reason of the misfortunes of the Prince and his having advanced unpopular officers As Gaveston and Spencer were grown in the people and Concurred to his after Deposeing from the Throne and horrible Murder when Deposed Hence may be very well observed in what a sad Condition a Prince is who must Depend on the Protection of Bishops and their Excommunications And how shamelesly notwithstanding they will boast that no Bishop no King For here are France and Scotland Confederated against the Kingdom the King is valiant but young and unexperiensed his Bishops and Barons are Corrupted against him by French Pensions and cause the Overthrow of his Army he discovers one of the Bishops guilty of the Treason and had he not been Rescued by the other Traytor-Bishops his Companions he might perhaps have discovered the whole Plot and all his Complices The King very Justly Sentences him both as Mute and Contumaciously absent and seises on his Estate as forfeit What more Just proceeding than this here is no condemning without Liberty of Answer and Hearing yet this must lose the King all the Arch-Bishops and Bishops in England and Ireland and all the Clergy of both Kingdomes who received Ordination from them And they will no longer be his subjects unless he will allow them to betray and sell him to his Enemies and not Punish or question the Treason But all concur to irritate the Temporal Barons the people and his own Trayterous Queen to depose and destroy him And the Bishop of Hereford Preaching before her took this Text My Head aketh my Head aketh and thence drawes this wicked Doctrine and Use to a wife that she must cut off her Husbands Head who was her Head and when after the King was deposed and his son chosen the Arch-Bishop of Canterbury Preached in Westminster-Hall on this Text Vox Populi Vox Dei to encourage the people in the Treason which was after perfected by his horrible murder in Prison The next Consideration will be how this might have been prevented by his Renowned Father who was of such Wisdome Vigilance and Valour as neither Gaveston nor Spencer nor Bishops Dared to abuse if he had suspected they would have practised such Treachery against the younger yeares of his son Concerning which it seemes he was able and might have easily prevented it had he not Committed two oversights the one was That he only Banish'd Gaveston and had not cut off his head if he had deserved it for assoon as he was dead Gaveston returned again and corrupting the young King was the first occasion his Enemies made Use of to cast the vices and misgovernments of his Favorites on himself It may be here objected That perhaps though Gaveston was a wicked vitious person yet he might not be Guilty of any Crime for which he might be lawfully put to death To which is answered That it possibly might be so though it be not likely And if he were not Guilty of such a Crime he ought not to have been put to Death for a Throne cannot be Established by shedding Innocent Blood But neither he nor his son needed to have been Guilty of it for his son needed not have sent for him Contrary to his Fathers Command and though he incurr'd that fault the Lords cut â—ff his Head who must answer for it and freed him from the Guilt and danger of him The second oversight was of more weight that was When he made an Act against Mortmain for the future he had not taken away as H. 8. after did all that was before Mortmained And when he took the Moiety of the Reverend Fathers Money and Goods he had not taken all and when he Lopt the Branches of Privileges and Jurisdictions of Bishops and other Ecclesiasticks he had not took both Root and Branch For it is as lawful to take present Mortmaines as 't is to prohibit Future And if lawful to take the Moiety it was lawful to take the Whole And if lawful to take the Branches it was as lawful to take the Root of Hierarchy which if he had done This clear Benefit he had Received by it he had left his son secure from any Spiritual French Pensioners who are the most Dangerous sort of all other And the Temporal Barons could not have had without them so great and specious advantages to have Betrayed him 2 He had freed him from such Audacious Traytors as would Rescue their fellowes from the Bar of Justice which Temporal Barons never dared do 3 He had fâ—eed all his successors who should happen to be superstitious from having Rebellions raised against them and themselves Deposed by Excommunication by abolishing Bishops and their ordination which had been an advantage none of his neighbour Emperours or Kings could hitherto ever obtain nor if Bishops had been taken away Episcopal or Ecclesiastical Government by halves though it was sufficient to abate their Power as to himself it was worse for his Son than if he had done nothing at all for he thereby left Bishops and a Clergy full of Rancour in their minds for those blowes they had been beaten with by the Father which though they dare not revenge themselves on him yet did they on his Son to his destruction and though there never had been a Gaveston or a Spencer would have found other pretences enough for their Treasons which they could not have done had he cleane abolish'd them and not left a See for a Bishop to fit in Arch-Bishop threatens to Excommunicate Edw. 3. Edward the Third being with his Army in France and disappointed of his Supply of Treasure upon his last Return into England had in great displeasure Removed his Chancellor and Imprison'd his Treasurer with other Officers most of them Clergy men
may be easie for the Priests to put Apples Grapes and Nuts in a Coffin and by Night to make fearful Noises Shrieks Groans and Counterfeit Apparitions about Graves and Tombs whence the horror of the very place and darkness make such impressions on timorous Fancies as they shall not dare to approach much less examine the matter and take out the new Body out of the Coffin and put in one had been Buried Seven Years and then a Vault made of purpose to make a noise under ground in the Church and Sofronio know nothing of all this 5. But whether it were Witchcraft or Cheat it is most horrible wickedness to make Use of either under pretence of Church-Discipline or the Worship of God seeing they both come from the Devil Alvarez a Portugal Priest Relates of himself That at the Town of Barva in Ethiopia there appeared a Terrible Cloud of an infinite number of Locusts which at length fell and Devoured the Countrey and that he and another Portuguez Priest took a Consecrated Stone and the Cross and sung the Letany and in this manner went in Procession through the Corn-Fields for the space of a Mile unto a little Hill and there he caused them to take a quantity of the Locusts and made of them a Conjuration which he carried with him in writing which he had made the Night before Requiring them Charging them and Excommunicating them Willing them within Three Hours space to begin to depart towards the Sea or towards the Land of Morez or towards the Desart Mountains and to let the Christians alone and if they obey'd him not he called and adjured the Fowls of the Air the Beasts of the Field and all the Tempests to scatter destroy and consume their Bodies And for this purpose he took the quantity of Locusts and made this Admonition to them that were present in the name of themselves and those which were absent and so let them go and gave them liberty The Locusts began forthwith to depart and in the mean while a mighty Tempest and Thunder arose toward the Sea which drowned all the Locusts in the River and the dead Locusts remained in heaps two Fathom high on the Banks so by the Morning there was not one Locust left alive This Excommunication if true were Conjuring and Witchcraft Flies Excomunicated Peter de Nathal in vita Bernhardi Relates That St. Bernhard denounced the Sentence of Excommunication against Flies Whether this may be call'd Witchcraft or a Silly Prank of St. Simplicius I cannot say but if he could Excommunicate Flies without a Magical Telesme or Inchantment Fishes Excommunicated he shall be the Domitian of Divinity Mere. Gallo lib. 6. p. 592. saith That Anno Domini 1593. The Bishop of Conagtion very malitiously Excommunicated the Innocent Fishes Theodosius a Bishop of Alexandria Dead Excommunicated Excommunicated Origen Two Hundred Years after his Death if he is censur'd only for a Cheat 't is less than so wicked a practice deserves Now though God may permit wicked men to Excommunicate and Daemons Witches wild Beasts and Tyrants to abuse the Bodies of the best men after they are dead they have no Power to touch the Soul And we ought not to fear but contemn their Excommunication for so saith Christ Matth. 10.28 Fear not them that can kill the Body but are not able to kill the Soul but rather fear Him which is able to destroy both Soul and Body in Hell Excommunication of the Devil Devils Excommunicated Mengus de Flagell Daemon Describes part of the Form of the Romish Exorcism to be I Command you Oh Davils who are come to the help of those that vex this Creature of God N. upon pain of Excommunication and Immersion into the Lake of Fire and Brimstone for a Thousand Years that ye yield no Aid and Assistance to these Devils It seems the Devil is of the Society of these Romish Priests otherwise he could not be Excommunicated To grant a Bishop Power of Excommunication is to grant him the Legislative Judicial and Executive Power Excommunication gives the Pope the Legislative Power over all Nations for by this he made his Canon-Law whensoever he pleased to be observed through Christendom by no other Obligation than his Command they should be observed on pain of Excommunication By granting the Power of Excommunication the Legislative Power is granted and the Clergy in Convocation used anciently without asking the Royal Assent to make Canons touching matters of Religion to bind not only themselves but all the Laity without Assent of the Lords and Commons in Parliament It was used in ancient time for Creditors besides other Security to procure Debtors to Swear they would pay them and thereupon there being then no Arrest in the Temporal Courts for Debt they Sued them in the Spiritual Courts on their Oaths and they granted an Excommunicato Capiendo to Arrest them without Bail which were so frequent that E. 1. could not keep his Servants free from Arrest in his Court till to prevent it he caused a Writ De Promulgantibus Sententiam Excommunicationis Capiendis Imprisonendis Commanding to Imprison such as Excommunicated any of them Rot. Parl. 25. E. 1. Intus Henry the Second according to Hovedon would That all such of the Clergy as were Deprehended in any Robbery Murder Felony Burning of Houses and the like should be Tried and Adjudged in the Temporal Courts as Lay-men were But Becket Arch-Bishop of Canterbury stood proudly on the Pontificial Prerogative of the Clergy That no Clergy-man ought to be Tried but in their own Spiritual Courts and by men of their own Coat And if they were Convicted before them they ought only to be deprived of their Office but if they after offended they should be Judged in the Kings Courts This Power of Judgment he drew to his own Court only by his Power of Excommunication A Copy of a Prohibition of Excommunication A true translated Copy of a Writ of Prohibition granted by the Lord Chief Justice and other the Judges of the Common-Pleas in Easter-Term 1676. against the Bishop of Chichester who had proceeded against and Excommunicated one Thomas Watersfield a Church-Warden for Refusing to take the Oath usually tendred to Persons in such Office to Present such who absent from Church by which Writ the Illegality of all such Oaths is Declared and the said Bishop Commanded to Release and take off his said Excommunication c. CHarles the Second by the Grace of God King of England Scotland France and Ireland Defender of the Faith c. To the Reverend Father in Christ Ralph by Divine Providence Lord Bishop of Chichester or any other competent Judg in his behalf whatsoever Greeting We are informed in our Court before our Justices at Westminster on the behalf of Thomas Watersfield That whereas by the Laws of this our Realm of England no Person ought to be Cited to appear in any Court Christian before any Judg Spiritual to
take any Oath unless it be only in Cases Matrimonial or Testamentary But whereas also by a certain Act in Parliament began and holden at Westminster the 8th Day of May in the 13th Year of our Reign and there continued till Wednesday the 30th Day of July in the 13th Year of our Reign afâ—resaid and from the same Day the Parliament Adjourned till the 20th Day of November then next following amongst other things it was Enacted by the Authority of the said Parliament That it should not be lawful for any Arch-Bishop Bishop Vicar General Chancellor Commissary or any other Spiritual or Ecclesiastical Jurisdiction to offer tender or administer to any Person whatsoever the Oath usually called the Oath Ex Officio or any other Oath by which such Person to whom it may be offered or administred might be burdened or compelled to confess or accuse him or her self of any Criminal matter or thing whereby he or she might be burdened with any Censures or Punishments as in the said Act amongst other things it is more fully contained Yet you the aforesaid Bishop after the Coming forth of this Act viz. the 23d Day of July in the 27th Year of our Reign in no wise regarding the said Law and Statute at Chichester in the County of Sussex did offer and tender unto the said Thomas Watersfield being then Church-Wapden of the Parish Church of Arundel in the said County of Sussex a certain illegal Oath Ex Officio to be performed by the said Thomas Watersfield in a Cause neither Matrimonial nor Testamentary by which the said Thomas Watersfield might be forced to accuse himself of divers matters Criminal and with which he might be Burdened with divers Punishments and Censures Ecclesiastical In which Oath as it was then tendered the said Thomas Watersfield should with his utmost Diligence Present every Person which then or lately was Inhabiting within the said Parish of Arundel who hath done any offence or neglected any Duty mentionâ—d in certain Articles contained in a certain Printed Book which Book was then and there shewn by you the said Bishop to the said Thomas Watersfield and the said Thomas Watersfield doth Aver at the time of the Tendering of the said Oath and before and afterwards ever since and hitherto That he hath dwelt and been Resident in Arundel aforesaid and that in the said Printed Book at the said time that the said Oath was tendered to be performed there was contained amongst other thâ—ngs this Question viz. Whether every Person Inhabiting or Sojourning within the Parish of Arundel aforesaid did daily resort every Lords-day and Festival appointed for Divine Service to the Church and whether they did there remain the whole time of Divine Service quietly with Reverence Order and Decency and whether Church wardens and Officers called Sides-men did observe those which came late after the beginning of Divine Service or went away before the end of the same and whether they did suffer some to stand idle or to talk in the Church-Porch or to walk in the Church-Yard during the time of Prayer and Preaching or other Sacred Duties And forasmuch as the said Thomas Watersfield did then and there refuse to take the said Oath you the aforesaid Bishop did pronounce the Sentence of Excommunication upon him afterwards that is to say upon the 23d Day of July in the 27th Year of our Reign aforesaid at Chichester aforesaid In Contempt of Us and the manifest Damage Prejudice and Impoverishment of the said Thomas Watersfield and against the Form and Effect of the said Statute and the Common Law of this Our Realm of England And whereas such Pleas by the Laws of England of Right belong to Us and not to You We therefore being willing to maintain the Laws of our Crown and the Law and Custom aforesaid as by the Bond of our Oath we are bound to do We forbid you firmly enjoining you not to intermeddle or hold before you the said Bishop the Plea and Sentence aforesaid as to any Answers in the said Articles concerning the said Thomas Watersfield or any thing from thence attempted But that you Release and Dissolve all Decrees and Sentences if any be against the said Thomas Watersfield by reason of the said Fulmination And that you do absolutely Release him the said Thomas Watersfield from all Decrees and Sentences upon occasion of the said Fulmination Teste at Westminster the 6th Day of May in the 28th Year of Our Reign Wurley The Suggestion on which this Prohibition is granted remains Recorded in the said Court of Common-Pleas in Mr. Wurley's Office Roll 551. Excommunicators Murderers John Hus and Jerome of Prague held That Priests ought to Preach notwithstanding Excommunication That Bishops were Murderers for delivering men over to the Lay-power for Disobeying them That such Excommunication was a humane Invention to maintain the Pride and Cruelty of the Clergy And were Martyr'd for this and other Truths The King shall be forced to Execute every Decree of the Pope or Priests with the Temporal Sword though contrary to his Conscience otherwise he shall be Censur'd if obstinate not worthy to hold his Crown Sheriff of Englands Oath The Sheriffs of England are compell'd to be Sworn to Assist and Execute all the Commands of Bishops not excepting against the King himself which is a most wicked Oath to be suffer'd For though it doth not Swear in express words to give the Supremacy of the Temporal Sword to this Spiritual Sword of Excommunication that the Priests were too subtle to have appear openly in their Form Excommunicators Usurp Supremacy yet doth it require him to Swear what is Aequipollent to assist and maintain the Bishops and Commissioners of the Holy Church as often as by them requirâ—d whereby their Spiritual Sword is made the Imperant and the King 's Temporal Sword the Obedient The Imperant hath Supremacy over the Obedient as it is said Rom. 6 16. Know ye not to whom ye yeild your selves Servants to Obey his Servants ye are to whom ye Obey Shall the Sheriff therefore be compell'd to be a Traitor to deliver the Temporal Sword intrusted in his hand by the King to those who assume that Luciferian Title of the Holy-Church to be Supreme above the King which is point-blank contrary to his Oath of Supremacy which obliges him to suppress with it such a Rebellious Pride to the utmost of his Power The Sheriff is likewise by the Law of Scotland to do Execution on Excommunicate Persons as appears Skene de verb. signif tit Schiriff Sheriff of Scotland whose words are The Sheriff shall take and apprehend all Cursed and Excommunicate Persons at the desire of the Bishop or his Official and put them in Prison untill they satisfie God and the Kirk Stat. 2. Reb. Br. specially them quhahes remained under the Censure of Excommunication by the space of Forty Days Quon Attach Rextali 76. And by Ja. 2. P. 4. cap. 7. it is Enacted That