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
who ought only to stand to Caesar's Judgment Seat and to be tried per legale judicium parium for the same According to this principle Henry the first Pope Paschal seeking to incroach on the liberty of the Kingdom writes unto him in this manner Netum habeat sanctitas vestra quod me vivente auxiliante deo dignitates usus Regni nostri Angliae non imminuentur si ego quod absit in tanta me dejectione ponerem Optimates mei totus Angliae populus id nullo modo paterentur Let your Holiness know that by God's help while I live the Dignities and Customs of our Kingdom of England shall not be diminished and though I which God forbid should suffer my self to fall into so dejected a condition my Nobles and whole People of England will never suffer it Object 7 It is further objected in behalf of Trial of marriage by Ecclesiastical Laws that by the Statute of 25 H. 8. c. 19. which gives power to the King to appoint 32 persons to examin the Canons and to continue such as they think fit and abridge the rest It is provided That such Canons Constitutions Ordinances and Synodical Provincials being already made which be not contrariant or repugnant to the Laws Statutes and Customs of this Realm nor to the damage or hurt of the King's Prerogative Royal shall now still be used and executed as they were before the making of this Act till such time as they be viewed searched or otherwise order'd and determined by the said 32 persons or the most part of them which Statute is revived 1 Eliz. 1. To which is answer'd That 1. what is contrariant or repugnant to the Law of God is made void without this proviso and the assuming the Jurisdiction of marriage and dividing Inheritances insuing thereby is before proved to be Anti-Christian for Spiritual persons who alledge themselves Successors of Christ and much more therefore the assuming the Legislative power or giving Laws or Canons for the same 2. It is shewen likewise before that the same power of Legislation and Jurisdiction concerning marriage was usurped by Fire and Faggot and Excommunication and therefore their Canons concerning marriage are not intended or if they were yet this proviso cannot Lawfully preserve such usurpations so contrary to the Law of God 3. It is manifest that all Ecclesiastical Jurisdiction and Laws and Canons of marriage are contrariant and repugnant to the Laws Statutes and Customs of this Realm as First the Canons then made were That marriage should be a Sacrament and thereby draw to it self Ecclesiastical Jurisdiction which latter Acts of Parliament establishing the Protestant Religion doth thereby abolish the being of marriage a Sacrament and consequently the Jurisdiction Ecclesiastical incident to it as a Sacrament and the Canons which make it so or give any Ecclesiastical Jurisdiction relating to the same 4. All Ecclesiastical Canons of marriage are contrariant and repugnant to Magna Charta and draw the Subject from his liberty propriety and Birth-right ad alias leges aliud examen and aliud judicium then legale judicium parium which Magna Charta of liberties to the Subject hath been confirmed by several Kings succeeding above thirty times Object 8 It is objected Admit there is no Act of Parliament gives Ecclesiastical Courts Jurisdiction of Marriage yet the unwritten Law of Use and Custom which is the Common Law of England and so long toleration gives it To which may be answer'd That by the Canon Laws Malus usus abolendus besides there was never any use of Jurisdiction of marriage in the Ecclesiastical Courts otherwise then in reference to the same as being a Sacrament which being now taken away cessante causa ratione legis cessat lex So likewise where the thing which a Use or Custom concerns is but changed the Use and Custom vanisheth as if by custom a Rate Tith be paid for two Fulling Mills in one House and one of them is changed to a Corn Mill the custom is gone But besides this being malus usus is of it self void and were it never so long used can never grow to have the obligation of the Common Law or to be thereby the Common Law As was well answered by a young Gentleman when complaint was made in Parliament against the wrongful incroachments of the Ecclesiasticks and they alledged for themselves That they had used and accustomed time out of mind to practise what was excepted against He reply'd So have Thieves at Shooter's Hill used time out of mind to Rob there yet the Law allows no such prescription nor doth the forced Toleration of their wickedness by such people as were not able to resist their Robberies oblige Successors to follow their precedents Reasons against Ecclesiastical Laws concerning Marriage 1. Ecclesiastical Laws of Marriage came from the Devils c. The first Reason against Ecclesiastical Laws is in regard of the wicked Authors for all the Laws by which Bishops judge Marriage Filiation Aliment and Succession were invented by Daemons Pagan Gods and Goddesses Magicians Aruspices Astrologers South-sayers Priests of Priapus and Venus Jupiter Juno Cybele Flora Diana common Prostitutes Popish Saints Popish Councils Popes or Papists The Canon prohibiting and nulling all Marriage without a Priest in a Temple except by the Pope's good License or Dispensation was made by the Pope and the Council of Trent as appears Ego Concil 147. pt 5. Concil 197. pt 6. as a main Pillar to support their tottering Kingdom against the growing strength of the then Lutheran Protestants All marriage Preists instituted in the Mysteries of Priapus and they took their pious precedents from the old Pagan Priests of Priapus and Venus and they had it from their Damons or Devils That all the ancient Pagan Priests were first initiated in the Mysteries of Priapus before they could be capable to execute the Priests office cannot be denied and is testified by divers Authors and particularly by Cornelius Agrippa de van Sci. p. 738. in these words Sordidissimus Priapus pro Deo habitus hunc coluerunt primi illi Religionum artifices Chaldaei Aegyptii Assyrii Babylonii Arâ—bes Scythae Aethiopes ac perinde tota Africa Asia Europa nec fas erat ullum sacerdotem fieri qui Priapi sacris non erat initiatus Hic est ille Belphegor idolum omnium antiquissimum quod Chamos dictum est à Chamo filio Noe. The filthy Priapus was estemed a God and was worshiped by those first founders of Religion the Chaldeans Egyptians Assyrians Babylonians Arabians Scythians Phoenicians Ethiopians and even all Africa Asia and Europe neither was it lawful for any to be a Priest unless he were first initiated in the Rites of Priapus This is that Belphegor of all other Idols the most ancient which is likewise called Chamos of Cham the Son of Noah Now this was the Law of these Priests for the wicked ends which are after mentioned Dispensation with Incest came
Rule of great incertainty to Judg Heresie Council of Chalceldon The last of the Four was the Council of Chalcedon in Bithynia which was called by the Emperor Martianus about the Year 455. whereat the Emperor was present in Person and 630 Bishops and Reverend Fathers from the greatest part of the World What a work is here who should Judg Heresie yet they never placed the Power of Judgment in the Right hand neither will it be possible to be taken out of the Wrong nor did any of these Emperors nor shall any else dare do it as long as Bishops continue hired with their own Treasure and Revenue and their own Temporal Sword deliver'd into their hands for Rome and Constantinople to Fight for Supremacy over themselves and to Sentence and Judg them and their Subjects as Rome hath done since it obtain'd Supremacy at their pleasure The Bishop of Rome had at this time got a Bishop at Constantinople placed for his purpose who was content to acknowlege the Supremacy of Judging Heresie to be in the Bishop of Rome or any else if he might be Second and enjoy so Fat an Office as to be Bishop of Constantinople but the City differ'd from their Mercenary Bishop who was call'd Anatolius and disdaining in their Religion to bow to Rome set up Eutyches an Abbot or Archimandrite of Constantinople to publish a Doctrine That Christ had no Humane but only a Divine Nature in him To suppress which Opininion Flavianus a former Bishop of Constantinople had moved the Emperor Theodosius the Second to call a Council at Ephesus Anno. 449. wherein Eutyches was Condemn'd by Flavianus yet by the help of Chrysaphius the Eunuch and Endoxia the Empress who favour'd that opinion Theodosius was prevailed with to make another Synod Judg of this Heresie which was again Summon'd by the Emperors Authority at Ephesus and Dioscorus of Alexandria made President at which Synod Eutyches is again cleared and declared Orthodox and Flavianus opposing it was so upon that Three Days after he died and all this being done in the Council of Ephesus Anno 449. in Theodosius's time was again Repealed and Abrogated Anno 455. in Martianus's time at the Council of Chalcedon And Leo the First Bishop of Rome by the help of Anatolius Bishop of Constantinople and his other Pensioners carried the Day for Supremacy of Judgment and Punishment of Heresie and Anatolius and the See of Constantinople was to be only next in Dignity to the Infallible Chair of Rome Considerations on the Judgment of Heresie when assumed by Bishops according to the Four first General Councils if it make them suspect to be Papists and not sit to be Prayed for in Publick 1. Coke says this Parliament 1. Eliz 1. was doubtful what they ought to determine Heresie and Schism and what not which was as much as the Bishops needed to desire that the Layity might be Ignorant and they have Power to keep them so and Heresie a Quaere to be Judged by themselves pro Arbitrario 2. It appears that the Pious Queen the Dawning of the Reformation but newly entring with her she could not suddenly Dispell the Darkness yet hanging over her own Protestant Party nor the Blacker Clouds gathering from Foreign and Native Papists against her nor resist her own Bishops designing to continue those Privileges of Profit translated by from Rome to Canterbury for certainly if the Protestant Party had understood That the Four first Councils had adjudged all those to be Hereticks who would not Worship Images and had been able to have over-Voted the Popish Party and Bishops they would never have given them Power to Judg Heresie according to those Idolatrous Councils for thereby they might Sentence them and all Protestants that were against Images to the Stake 3. The Bible was but little before Translated into English yet to keep it more dark still than if it had continued in Latine they who alledged themselves Protestant-Bishops sent the People to Learn the same of Greek Councils and to Read there the Law of Heresie while they Judged them at home in their Latine-Law and Latine-Courts the mean while 4. They equal Councils with Canonical Scriptures that their Convocations and Provincial Synods may have the same Authority 5. They equal their Convocation with the King and Parliament for the words of the Statute are or Determined to be Heresie by High Court of Parliament of this Realm with the Assent of the Clergy in their Convocation Knowing if the Miter once get equal 't is but one step more to be above the Crown 6. By those words they Constitute to themselves the Power of a Negative in Legislation against the King in Parliament and the two other Estates which makes them a Fourth Estate in the Legislative Power knowing such Fourth Estate like the Fourth Beast in Daniel may easily Devour all the rest 7. They Judg since no Commissioners were made every Bishop in his Diocess a Judg of Heresie Jure Divino and they by their own Popish Canons and the old Popish Acts against Lollards who were the followers of Wickliff and the Primitive Protestants and the Proto-Martyrs of England Judged Protestancy to be Lollary and Heresie and all the Sheriffs of England take an Oath with all their Power to Destroy all Heresies and Errors commonly call'd Lollaries which is Protestancy and to assist the Bishops in the same whensoever by them Required whereby they have the whole Military Power at their Command to Judg and Destroy Protestants as Hereticks 8. They Judg Heresie by their own Ceremonial Laws and Canons whereby they Arrogate a Power above the Moral Law of God by which alone all Heresies and Schisms and all Error and Truth ought to be Judged I conclude therefore That such Bishops if there are any such as Exercise all these ways of Popery many Protestants may happen to suspect them to be Papists for their profit and therefore scruple to join with their Chaplains in their Prayer before Sermon for God to speed them It will not agree with the Consciences of many Protestants to join with the Chaplain in publick Prayer for his Patron 1. Because all Patronages were invented and erected by the Pope and Papal Laws all Patroage came from the Pope and the Strength and Riches of all Popery consists in Patronages or Power of Presentation to Cathedral Collegiat Parochial or other Religious Churches or Houses 2. It is very unjust that any who must pay the Lawyer or Physician his Fees should not have Election of such a one of either as he can Trust and much more as to a Divine Lawyer and Physician of his Soul that any should be Imposed on him whom he cannot Trust and who may perhaps Poison him in the Sacrament it self of which Examples have been already Cited but the Chaplain who Prays for the Patron is obtruded on the Pay of the Parish without their Assent and the Patron many times pays him not a Penny but Sells to him
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
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.
any Delays by Jeofails Repleaders Arrests of Judgment or Writs of Error another cause was that both Parties and Advocates took the Oath of Calumny that they believed their Allegiance just and true Illud juretur quod lis sibi justa videtur which Oath keeps their Allegiances clean from falsity that I never found so much as one Fiction in all their judicial Proceedings and if the same Oath were but taken here as there I believe there would not one Bill in Chancery or Declaration at Common Law come in for Twenty which now are thrust in by heaps many other causes there are which lessen the labour of a Judg and of the Suitors which for Brevity I omit all which shew the Prudence of that Noble Kingdom where the People enjoy so great Justice with so little Cost and Contention Lastly we could have done more Business than we did had we been set to Act as the Roman Judges every one single without Associates in a Court by himself and how great an Addition to the Publick Treasury as well as advantage to Justice the lessening the number of Judges and turning Fees to Salary will cause is already mention'd A Satyr against the Cruel Preposteration of Ecclesiastical and Temporal Courts in Judicial Proceedings contrary to the Precept of Christ Matth. 18.15 AND will you never learn the skill Which first Subpoena is or Bill Or foremost know with all your wit If Declaration is or writ Or which precede should in your Tale The Capias or Original You which is best who make a pause To Sentence first or hear the Cause With Execution who begin Before a Judgment or a Sin Who grinde and eat the Poor distrest With Tongue and Teeth of Romish Beast For Grace in Anglice's who curse The Rent was bad the Patch is worse Who have no Summons but Surprize Who have no Laws but Treacheries Do you not know there is a Cry Gone up against your Cruelty The Prince himself of Righteousness So foul Oppressions to suppress Descended hath on Earthly Globe And glorious Dy'd his Scarlet Robe In his own blood to keep the Peace And from your Dungeons to release Twelve Trumpets hear 12 Apostles whose Silver sound Doth from the East to West rebound Proclaim'd the Sacred Edict have And Penalty whence none can save Which lest to you should be in vain Ye Adders deaf hear it again If Thee thy Brother or thy Friend Or Enemy hap to offend See thou to warn him do not grudg Twice at the least without a Judg And the last time see thou no less Shew him than thy two Witnesses Or three to make the Fact appear If he shall doubt to him more clear Nor shalt thou him for any thing Unto the Seat of Judgment bring Untill he Litis Contestate Or shew a Contumacious hate That if thou canst thou may'st him prove Thus first at home to win by Love Let every Plaintiff thus his Suit Begin or be for ever mute No form of Strife shall be but this Our express will and pleasure is The Nations Bow and struck with Awe Adore the Justice of the Law And to the dread Tribunal run High as the Clouds bright as the Sun With loud Appeals and further will Upon this Statute draw their Bill Both of Indictment and Complaint And of these Crimes you thus attaint That against this Divinest Act More Fees and greater to exact The furious Plaintiff false or true While hot you bind him to pursue The slow Defendant wrong or right You Bail or Goal to make him fight And Fines on Concords heavy lay To make them your unhappy prey The Debtor travailing to find The Creditor with honest mind Your Outlawries ambush the way And will not suffer him to pay But in your Tolls you take him there And bind him like a filly Dear Or what doth make him as forlorn To death you hunt him with the Horn To make his Skin and Carcass yours You cheat both him and Creditors And while his Plaint each sadly tells You take the Fish and leave the Shells Thus Innocents you lay in Chains Before they know who 't is complains Or what 't is for nor shall they see 't Till all Extortion's paid by Sheet You lay Imbargues and Prizes take Before the War proclaimed you make And Right by Battle try and Wounds Mortal before the Trumpet sounds Your Hell-hounds hunt without a noise Your Snake not rattles but destroys There 's nothing true and nothing Sworn Till Justice is to pieces torn And you who cite not but infest us With your Excessus Manifestus And us torment with great unfitness Dr. Cousins writes in defence of suppressing the names of Witnesses Accusers Excommunication ipso facto without Citation Because you will not name the Witness Your Ipso Facto's make us wonder At Thunderbolts without a Thunder And Bodies Judg in Hell to cast Before the Judgment day is past And deathless Souls make pale and wan Because you Curse before you Ban. No Plea deceives the Judg on high What will you do stand mute or flie All rather or who most repents Burn Popish Forms and Presidents Is it not better then to turn To Flames than you your selves to burn Some way with speed appease his Ire Your pain proclaimed is Hell and Fire Of Summons to answer before a Copy given of what is required to be answer'd This is in Scotland provided for by Act of Parliament and no man is troubled to appear before any Judg to answer before by their Libell'd Summons a Copy is deliver'd to the Person or affixed at the Door of his dwelling House containing all the matters at large to which his answer is required and though the People of England are not yet so happy as to enjoy so great a Privilege on which those invaluable Treasures of their Liberty and Propriety depend yet every Attorny and Clerk of a Court hath it and is free from giving appearance before a Judg or being Arrested till a Copy of the Declaration first deliver'd him and Judgment pass'd against him Attor Ac. 28. The reason why these Lay-Clerks who are Successors in Courts to the old Romish Spiritual Clerk Monopolize this from the whole People only to themselves is Filthy Lucre For first if the Plaintiff were compell'd as he ought to be to make Oblatio Libelli to the Defendant by giving or sending a Copy of his Bill in Chancery or of his Declaration at Common Law to the Defendant at his dwelling House and so likewise the Defendant bound to return his Answer Sealed up directed to be left for the Plaintiff in such Court having Jurisdiction of the Cause as the Plaintiff desired within Fifteen Days after the Service of the Copy at the dwelling House to be by the Officer of the Court deliver'd Sealed to the Attorney of the Plaintiff when he demands the same and the like done on Reply Duply Triply and Quadruply and all Exceptions of Fact or Law Postulations and Motions of
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
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
and those Laws which follow them they will on Divorce under the name of Alimony give the Woman more then the Interest of her Portion amounts to which incourages all Women to seek Divorces whereas the form of Divorce amongst the Romans was Res tuas tibi habeto and she was not to have more then she brought with her and the same is the Law of the Jews and all other Nations except such as live under Popish Ecclesiastical Laws And the injustice of our Ecclesiastical Laws to the contrary is not one of the least causes why Divorce and Separations are of late grown so frequent because Women know they shall gain by the Divorce and rob their Husbands of more then ever they brought them Of the Law of Divorcing after Procreation of a Child for precontract or pre copulation without pre procreation Of the Law prohibiting liberty of private Marriage without publick Witnesses Of the Law giving the Jurisdiction of the secret causes of Divorce between Parents and secret uncleanness of Children in their Parents Houses to publick Tribunals Of the Law compelling persons married though mortal Enemies to Co-habitation Of the Law of Divorce à Mensa Thoro. Of the Canon compelling the parties on Divorce for Adultery to give Bonds and Sureties not to marry again during each others life Of the custom of Protestants marrying with Papists Edward the Fourth was as is alledged first verbally contracted to Eleanor Daughter to john Talbot Earl of Shrewsbury married after to Sir Thomas Butler Baron of Sudley after this verbal contract he married Elizabeth the Widow of Sir John Gray she lived his Wife Eighteen Years and Eleven Months and he had issue by her Three Sons and Seven Daughters Elizabeth his eldest Daughter was first promised in marriage to Charles Dauphin of France but married after to King Henry the Seventh Edward the Fourth being dead leaving his two Sons young in the custody of his Brother Richard the Third they were after murdered by him to make his own way to the Crown but first in preparation thereto Dr. Shaw in a Sermon by him Preached at Paul's-Cross took for his Text Spuria vitulamina non agent altas radices And to make short work they were after by Act of Parliament Proclaimed Bastards and not inheritable to the Crown on no other Allegation made but the pre-contracts before mention'd with Eleanor Butler as is recorded in the Parliament Roll. Husband divorces the Wife for cause of precopulation committed by himself Buchanan rerum Scoticarum lib. 11.652 relates That Earl Bothwel aspiring to obtain the marriage of Mary Queen of Scots compelled his Wife to accuse him of pre-copulation with another Woman before he married his Wife Gordonia Bothuelii uxor cogitur in duplici foro litem de Divortio intendere apud judices Regios accusat uxor maritum adulterii quae una justa apud eos erat divortii causa apud judices Papanos lege vetitos tamen ab Archiepiscopo fani Andreae ad hanc litem cognoscendam litem dare accusatur idem ante Matrimonium cùm propinqua uxoris stupri consuetudinem habuisse nulla in Divortio faciendo nec in testibus nec in judicibus fit mora intra enim decimum diem lis suscepta disceptata dijudicata est After he saith one thing thought necessary was ut consuetae servarentur Ceremoniae ut videlicet publice in conventu civium tribus diebus Dominicis nuptiae futurae inter Jacobum Heburnum Mariam Stuartam denuntiarentur ut si quis quid vitii ant impedimenti sciret quo minus legitimè coirent rem ad Ecclesiam deferrent And after he saith Cùm de nuptiis in Ecclesia denunciandis ageretur lector cujus id munus erat constanter recusare collecti Diaconi seniores cùm reluctari non auderent jubent Ecclesiastem nuptias futuras de more edicere is quidem hactenus paruit ut se vitium quidem scire profiteretur ac paratum seu Reginae seu Bothuelio cum vellent judicare is cum in arcem accersitus venisset Regina eum ad Bothuelium remisit qui quanquam nec blanditiis nec minis Ecclesiastem de proposito deduceret nec rem disputationi committere auderet tamen nuptias apparat unus Orcadum Episcopus est inventus qui gratiam aulicam veritati praeferret caeteris reclamantibus causasque proferentibus cur Legitimae non essent nuptiae cum eo qui duas uxores ad huc vivas haberet tertiam ipse suum nuper fassus adulterium demisisset ita indignantibus omnibus bonis vulgo etiam execrante propinquis per literas improbantibus inchoatus publicis Ceremoniis simulatis etiam factas detestantibus tamen Matrimonium celebratur Which fore-mention'd pre-contract alledged against Edward the Fourth was no more just cause to Illegitimate his Children then it was to Murder them nor was his pre-copulation with another Woman confess'd by Earl Bothwel any more just cause to Divorce his Wife then it was to aspire to the Kingdom 32 H. 8. cap. 38. takes notice of the great mischiefs insuing by dissolving by pre-contract Marriage consummate by bodily knowledge and fruit of Children or Child which Statute follows in these words WHereas heretofore the usurped power of the Bishop of Rome 32 H. 8. cap. 38. Of precontract hath always entangled and troubled the meér Iurisdiction and regal power of this Realm of England and also unquieted much the Subjects of the same by his usurped power in them as by making that unlawful which by God's Word is Lawful both in Marriage and other things as hereafter shall appear more at length and till now of late in our Soveraign Lord's time which is otherwise by learning taught than his predecessors in time past long time have beén hath so continued the same whereof yet some sparks be left which hereafter might kindle a greater fire and so remaining his power not to seem utterly extinct Therefore it is thought most convenient to the King's Highness his Lords Spiritual and Temporal with the Commons of this Realm assembled in this present Parliament that two things especially for this time be with diligence provided for whereby many inconvemences have ensued and many more mought ensue and follow As where heretofore divers and many Persons after long continuance together in Matrimony without any allegation of either of the parties or any other at their Marriage why the same Matrimony should not be good just and lawful and after the same Matrimony Solemuized and Consummate by carnal knowledge and also sometimes fruit of Children ensued of the same Marriage upon pretence of former Contract made and not Consummate by carnal Copulation for proof whereof two Witnesses by that Law were only required beén divorced and separate contrary to God's Law and so the true Matrimony both so Solemnized in the face of the Church and Consummate with bodily knowledge and confirmed also with fruit of Children had betweén
the colour and pretence of a former Contract made with another the which Contract divers times was but very slenderly proved and often but surmised by the malice of the party who desired to be dissolved from the Marriage which they liked not and to be coupled with another There was an Act made That all and every such Marriages as within the Church of England should be Contracted and Solemnized in the face of the Church and Consummate with Bodily knowledge or fruit of Children or Child being had between the parties so married should be by Authority of the said Parliament 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 Persons so married or both had made with any other Person or Persons before the time of Contracting of that Marriage which is Solemnized or Consummated or whereof such fruit is ensued or may ensue as by the same Act more plainly may appear Since the time of which Act. although the same was Godly meant the unruliness of Men hath ungodlily abused the same and divers inconveniences intolerable in manner to Christian Ears and Eyes followed thereupon Women and Men breaking their own promises and faiths made by the one unto the other so set upon sensuality and pleasure that if after the Contract of Matrimony they might have whom they more favoured and desired they could be contented by lightness of their nature to over-turn all that they had done afore and not afraid in manner even from the very Church-door and Marriage Feast the Man to take another Spouse and the Spouse to take another Husband more for Bodily lust and carnal knowledge then for surety of faith truth or having God in their good remembrance contemning many times also the Commandment of the Ecclesiastical Iudge forbidding the parties having made the Contract to attempt or do any thing in prejudice of the same Be it therefore Enacted by the King's Highness The Lords Spiritual Temporal and the Commons in this present Parliament assembled That as concerning pre-contracts the said former Statute shall from the first day of May next coming cease be repealed and of no force or effect and be reduced to the estate and order of the King 's Ecclesiastical Laws of this Realm which immediately before the making of the said Statute in this case were used in this Realm So that from the said first day of May when any cause or contract of Marriage is pretended to have beén made it shall be lawful to the King 's Ecclesiastical Iudge of that place to hear and examine the said Cause And having the said Contract sufficiently and lawfully proved before him to give sentence for Matrimony commanding Solemnization Co-habitation Consummation and Tractation as it becometh Man and Wife to have with inflicting all such pains upon the disobedients and disturbers thereof as in times past before the said Statute the King 's Ecclesiastical Iudges by the Kings Ecclesiastical Laws ought and might have done if the said Statute had never been made Any Clause Article or Sentence in the said Statute to the contrary in any wise notwithstanding Of the Law making private Marriage or carnal knowledge between persons not prohibited by the Law of God to marry Fornication Private Marriage or carnal knowledge is of two sorts the one without publick Witness the other without any Witness at all and both by the Popish Laws because if permitted they would spoil their gains are prohibited and called clandestine Marriages The publick Witnesses are the Priest or Magistrate private Witnesses are any other Marriage without Witness nor clandestine not appointed by Law The Law of England makes all private Marriage and carnal knowledge without publick Witness Fornication The Law of Scotland in some cases relieves though there be a defect and no publick Witness of the Marriage by the Priest as appears in the before cited Author Craig Feud 269. If there appear private Witnesses of Men or Instruments but in all cases likewise where there are neither publick or private Witnesses they leave it to be Fornication That which I here affirm against both is Marriage without Witness not Fornication 1. That carnal knowledge between parties not prohibited by the Law of God to marry is not Fornication nor any other Crime though in the highest secrecy and without any Testimony of Men or Instruments whatsoever 2. That privacy of Marriage being not prohibited nor publication commanded by God all parties ought to have liberty of Conscience to use the one or the other according as suits best with their occasions As to the first there are these reasons That private Marriage without Witness is not Fornication nor any other Crime 1. There is no Law of God prohibiting private Marriage without Witness Where there is therefore no Law there is no transgression Rom. 4.15 2. It is before shewen That for any human Law to prohibit Marriage or Meat where not prohibited by the Law of God the same came from the Devil 1 Tim. cap. 4. v. 1 2 3. And that therefore the Law of the Pope and Council of Trent which nulls all Marriages except made before a Priest in a Temple and two Witnesses came from the Devil and the Priests of Priapus and Venus for filthy lucre to the Priests 3. Isa 45.7 It is said I create evil And Isa 5.20 It is said Wo unto them that call good evil and evil good That put darkness for light and light for darkness Here is therefore a curse pronounced against those who if God created not marriage without Witnesses evil of their own heads call it evil and where God created it to be in darkness and natural modesty of their own heads will have it by Torch-light and the whole Parish of Witnesses 4. All Fornication is Polyandry and Confusio seminum whereby the Child cannot know the Father nor the Father the Child but here is no such thing it is impossible therefore to be Fornication Liberty Conscience to marry with or without Witnesses As to the second Point which I am to maintain That privacy of Marriage without Witnesses being not prohibited by the Law of God nor publication commanded by the same no human power ought to presume to prohibit what Marriage God hath not prohibited but all persons ought to be left liberty of Conscience to marry publickly or privately with or without Witnesses as it suits best with their conveniences and occasions as is the use and practice in all other civil Contracts which men do with or without Witnesses as they think best and were never accused of sin if they had no Witnesses whereon to bring their Action only that Party is justly charged with sin who wilfully breaks his Contracts because there are no Witnesses but God to prove it against him Against these Positions I shall first answer the Objections and then shew further Reasons to confirm the same
the Kings Courts 2. He rests not there but says Iisdem licentiam ad alia vota convolanda concedimus So that here not only Licence may be had for Money to Marry but for the same to leave the old and make a new choice as often as they please And my Lord Coke will have the Common Law to give such Faith that they ought not to question these doings true or false right or wrong which sets all Women and Men to Sale for Money and gave the occasion to Cornelius Agrippa to call all Ecclesiasticks Panders General for their Profit 3. The Common Law Judges give the Bishop the same Supremacy of Power in Matrimonial Causes since the Protestant Religion hath made Marriage no Sacrament as they had in the time of highest Popery and made it a Sacrament though Sublata causa tollitur effectus The same ceasing to be a Sacrament and becoming a mear Temporal Contract the old superstitious Faith of a Sacrament ought not to be given those who are no Judges of Temporal matters 4. It is worth a smile in this Case were it not so wicked to see how hot the Common Lawyers were a while in the scuffle for Supremacy of Marriage But no sooner had the Bishops turn'd the muzzles of the Romish Canons against them and discharged their piece of Conjuring in a strange Language instead of a Sentence but our Worthies of the Law fell flat on their faces and yielded the Royal Fort of the Prerogative and all the Protestant Subjects Laws and Liberties eya Magna Charta it self to the Mercy of the Enemy by so abominable a Judgment that no Appeal lay to the Kings Courts against the Sentence of a Bishop touching Marriage Filiation or Succession true or false right or wrong with cause or without cause a Resolve deserving to be mark'd with a Note of perpetual Infamy and Razed out of all Records On which and other Reasons though in most parts of Christendom the Clergy generally composed one Estate of the Country yet since the Reformation they were excluded from being any part of the Estates and of Holland neither were they allowed any Vote in their Assembly and far less Reason have they in England seeing they have equal Privilege here with the Gentry and all other Lay-free-holders in Election of Knights of the Shire to assume any other Power in the Legislative Temporal or Spiritual either in Person or by any other Representative The like Practice is likewise in Venice though they are Catholicks where before the Council sits the Cryer with a loud Voice commands all Priests out of Doors lest they should discover the State secrets to the Pope and likewise assume the Supremacy of Judgment from the Temporalty to the Spiritualty to produce which effects they are a dangerous ingredient to be mixt in how small a quantity soever in any Supream Council and a little Leven of so active a Fermentation Leveneth the whole Lump A Reason is given by Aeneas Silvius why it was held by more That the Pope was above a Council than a Council above a Pope because Popes gave Bishopricks and Arch-Bishopricks but Councils gave none Which doth not only hold in meer Spiritual Councils but in such Spiritual Councils as are mixt with the Temporalty in which the Spiritualty are always Bribed and Pension'd by the gift of their Offices And this is apparent and needs no further proof And if any of the Temporalty receive the like Bribes and Pensions upon lawful proof thereof made it cannot be denied that neither of them are equal or fit Legislators and much less Judges of the Holy Laws of God of Marriage Filiation and Succession of Subjects and least of all of Kings Exceptions against Bishops being Judges in reference to the Judicial Power 1. They are prohibited by the example of Christ to Judg Marriage Filiation Aliment or Succession We Read Christ was at a Marriage-Feast but it was so poor a one they wanted Wine and 't is likely he would have helped them to none had the man been rich for he might have bought enough for his Money without Miracle But Christ shewed his Bounty to the Poor and the Rich he sent empty away We read likewise he taught the Doctrine of Marriage but it was according to the Moral Law of God and all Ceremonial Laws he Established neither did he or his Apostles ever join any hands by the Ceremonies of a Priest or Temple nor ever spake of any other joining Man and Woman together but by God only as it was from the beginning And as to the point of being a Judg of Marriage Filiation Aliment and Succession he utterly refused it though he knew the Fact and the Right far above any Bishop as appears Luke 12.14 And one of the company said unto him Master Speak to my Brother that he divide the Inheritance with me And he said unto him Man Who made me a Judg or a Divider over you To give Judgment in this Case according to Episcopal Doctrine Christ must first have enquired with what Ceremonies the Father and Mother were Married whereby the Marriage must have been first Judged Then Whether these two Brothers were begot before the Ceremonies or after and whether there were Witnesses at the begetting which concerns Filiation Then Whether the Inheritance which according to the Romish Law then Imperial in Judaea included both Lands and moveable Goods were left by a Testate or an Intestate which would have concerned the Aliment and Succession but Christ in a word refused to Judg any of these And those who alledg themselves his Successors ought to follow his Example who if he sent them sent them to teach and not to Judg. For he saith Go teach all Nations but there is not a word of Judging any Nation 2. They are totally ignorant in the Fact and were never Educated in the Laws by which they pretend to Judg Marriage That 't is impossible for them to know the Facts of Marriage or Filiation or to receive any Testimony of the same is already shewn and proved P. 104 105. and indeed the Cook with his white Sleeves who dress'd the Wedding-Dinner and the Tailor who made the Wedding-Cloaths and the Midwife and Gossips who eat the Pie and drunk the Bowl if any Certificate or Judgment were at all necessary as to the Fact of Marriage and Filiation besides that of the Parents were far more credible and fit than the Bishop's who was an Hundred Miles off at the time of getting the Child and of all these doings besides And as to the Law 't is known they were never Educated either in the Civil Canon Common or Statute Laws the knowledg of all which they themselves cannot but acknowledg are necessary to make up an Ecclesiastical Lawyer by which is manifest they are as ignorant of the Law of Marriage and Filiation as they are before proved to be of the Fact With what Face or Conscience can they undertake to be Judges of what they
the Servandes of the House or other famous Witnesse and sall execute their Offices and Charge and thereafter sall offer the Copie of the saidis Letters or Precept to ony of the Servands quhilk gif they refuse to do that they affix the samin upon the Èœett or Dure of the Persones Summoun'd and siklike gif they get na entress they first knockand at the Dure Sex Knockes they sall execute their Office before famous Witnesse at the said House and dwelling place and affix the Copie upon the Èœett or Dure thereof as said is quhilk sall be leiful and sufficient Summounding and delivering of the Copie and the Party and Officiar sall not be halden to give ony usher Copie bot at their awin pleasure And every Officiar in his Indorsation sall make mention of his awin Execution in manner fore said and the Partie at quhais instance the Letter or Precept is direct sall pay to the Officiar Executour the Expenses of the Copie affixed as said is and sall be taxed and given again to him the giving of the Decreet or Sentence gif he happenis to obteine And gif the Officiar heis foundin culpable in the Execution of his Office he sall be put in our Soveraine Lordis Prison and punished in his Person and Gudes at the Kingis Grace Will. Coke 4. part 99. saith The Common Pleas may in many cases proceed against their own Officers by Bill without Writ and why may not all the Subjects have the same Right as well as the Officers of the Common Pleas In London before the Mayor and Aldermen Debt and Personal Actions are determined by Bill without Writ City-Law 3. And so are Assises of Nusance ib. 4. and why may they not by Copy of the Bill be commenced better than by Writ over all the Kingdom The mischiefs of Original Writs from the Chancery Besides the Delays of Original Writs and Process by remoteness of Courts whither they are to be sent for and by the multiplications of Aliases and Pluries and the manifold dangers when gotten and executed to be again overthrown and nullified by Abatements for a multitude of frivolous Causes and Formalities and likewise for so many sorts of Variances as before mention'd of all which the Declaration might have been free if no Writ had preceded 1. It is excepted against Writs that Declarations are not amendable and it costs many times so much in amending the Misprision of Clerks in their Writs that the Plaintiff if he is not so poor as not to be able were better abate his own Writs and Declaration himself and pay Costs and buy Twenty new Writs than get one of the old amended 2. Writs Original are altogether useless except to get Money for nothing 3. They are saleable contrary to Magna Charta Nulli vendemus Justitiam and the Civil Law for Lege Julia tenetur repetundarum qui accepit aliquid ob Judicem delegatum dandum mutandum vel ob non dandum c. And what doth a Writ of Right a Justicies or any Original do besides but assign a Delegat Judg to hear the Cause in the Kings-Bench or Common-Pleas or Lords-Court or County-Court Then 't is contrary to Equity the Plaintiff should be compell'd to buy a Writ which is not only useless but pernicious to his Declaration and puts it in ten times more danger to be overthrown than if he might as he ought be permitted to use it without a Writ and the Plaintiff being to deliver a Copy of his Declaration Expensis Actoris to the Defendant 't is no reason he should be at any expence to pay Clerks for Writs impertinent 4. As to the Writ in Chancery of Subpaena Mischiefs of the Chancery Writ of Subpaena which is to be distinguished from the Writs to the Common Law Courts it is contrary to Magna Charta Nulli negabimus Justitiam for if a Poor man Sue a Noble-man there a Chancellour will deny a Poor man his terrible Writ which he uses to grant under a Hundred Pound Penalty in Terrorem Pauperum and he shall get no more of him if he do that at a greater price than the Writ would have cost but a poor begging Letter to the Noble-man to send his Answer to the Complaint against his Oppression which is no other than to bring into England the old Slavery of Rome whereby no Slaves were permitted to Sue their Lords before the Pretor or any other Judg were their Tyranny over them never so great and unjust What a wretched dishonour is it to Publick Justice which heretofore was blind to the Person that she turns now blind to the Cause and who heretofore carried the Sword in her hand Parcere Subjectis debellare superbus to have now lost her Sword and got a Crutch to become only a blind Beggar when she is to approach the Gates of Nobles neither is there any Law of God or man in England to justifie a Chancellour that he shall presume to use a different process of Concumacy against the Commons Chancellour hath no Power to Imprison Commons any more than Lords which he dares not use against the Lords for if it be not lawful for him to Issue Attachments or Commissions of Rebellion against the Lords or to imprison them then is it not lawful for him to Issue Attachments or Commissions of Rebellion against the Commons for both are equally Interested in Magna Charta and the Petition of Right not to be imprison'd without the lawful Judgment of their Peers and they being both Allies and Confederates by the said Acts to maintain the Commons Liberty The Liberty of the Commons is the Out-work which preserves the Liberty of the Lords if the Commons be Invaded though for the present such Invasion touch not the Lords yet when it hath destroyed the Liberty of the Commons the Lords will not be able to defend theirs when their Allies are lost The Liberty of the Commons is the Outwork which preserves the Liberty of the Lords the Liberty of the People is the Outwork which preserves the Liberty of the Parliament the Liberty of the Subjects is the Outwork which preserves the Safety of the King and as Solomon saith Prov. 20.28 Mercy and Truth preserve the King and if contrariorum contraria est ratio Cruelty and Fictions of Writs of Subpoena's in Chancery Latitats in Kings-Bench and Capiases without Summons in Common-Pleas wherewith they abuse the Kings name in false imprisonments of his Subjects without Crime or Cause destroys the prisonments of his Subjects without Crime or Cause destroys the Safety of the King himself and in a Case between the Duke of Lenox and the Lord Clifton M. 10. Jac. Though a Lord was not to be Committed for Contempt in a Poor mans Case yet in this Case between two Lords Chancellour Egerton said If Noble-men will commit Contempts they are to be Committed Now that the Imperial Power which hath been usurped by Chancellors to imprison the
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
nane against quhome the Process beis led be received in the Kings Castle or Place or in his Presence nor admitted to Councel or Parliament heard nor answer'd in the Law of Judgment of Fee and Heritage or uther Causes bot ever Eschewed as Cursed unto the time the said Persons cum to amendis and assyith the Party and obteine Absolution in Form of Law And Jac. 6. p. 3. cap. 53. in the Kings Minority an Act was got by the Kirk ' That all Excommunicate Persons not Conforming ' in Forty Days should be denounced Rebels and put to the Horn. The English Commissioners in the said late time of the Troubles had Instructions to take from the then Kirk such Letters of Horning and not to assist any Excommunication with the Temporal Sword which we performed accordingly The King of Spain joined with Tyrone and the Rebels in Ireland against Queen Elizabeth And Don John de Aquila Landing in Ireland with 4000 Spaniards intitled himself Master-General and Captain of the Catholick King in the Wars of God for holding and keeping the Faith in Ireland only on pretence of Excommunication Sextus Quintus the Pope of Rome on the Invasion prepared by Spain against England Anno 1588. sent out his Crusado as if against the Turks and having pass'd Sentence of Excommunication and Deprivation by his Bulls against Queen Elizabeth promising Pardon of Sins Heaven and Eternal Life to all who di'd in the Invasion 1. To grant a Pope or a Bishop Power to Excommunicate Protestant-Subjects is to grant him Power to Excommunicate Protestant-Kings 2. To grant him Power to Excommunicate Protestant-Kings is to grant him Power to Levy Money Raise Soldiers Denounce War and Depose them 3. Of the Dilemma of Danger threatning Princes who seek Security of Goverement from the Excommunication of Popes or Bishops either over a People Religious or Superstitious 4. Of the Impossibility of Security for Princes unless their Subjects are Educated or Instructed to be free from the Superstition of Excommunication and to contemn it 5. Of the Impossibility of obliging Popes or Bishops either by Benefits or Oaths Excommunication is as Proscription made a pretetence of Confiscation without shewing cause The Romans saith Aman. Marcellus proscribed Ptolomy the then King of Cyprus being their Confederate for no fault only they wanted Money in the Treasury who therefore poison'd himself and the Isle became Tributary to the Romans In the like manner do Popes and Bishop fall on the Richest with their Excommunication to fill their empty Purses Pope Gregory the Tenth Commanded Percham Arch-Bishop of Canterbury to pay him Four Thousand Marks within Four Months on pain of Excommunication So Excommunication is a ready way to Levy Money for War Anno 1230. The Pope having Excommunicated the Emperor the Emperor was fain to pay for his Absolution an Hundred and Twenty Thousand Ounces of Gold Plat. Nam Anno 1231. The Emperor for memory of this hard Penny-worth for his Absolution put into a Pool at Helbrand divers Pikes and other Fishes with Brass Rings having Inscriptions of his name and the Year of the Lord one of the Fishes was taken up 267. Years after Ann. Suev Calv. Henry the Second after that Traitor Beckett the then Arch-Bishop of Canterbury had been Slain though not by the Kings Command was enjoined amongst other things this Slavish Penance He walked Three Miles bare-foot on the sharp Stones that he at length had so cut his Feet they marked the ground with Blood every step he went And after this which was worse than Running the Gantilope he Received of the Priests Monks Bishops and Abbots on his naked Flesh so many Jerks with Rods Oh brave Pedants and Pontifical Government for Princes as according to Baronius amounted to at least Fourscore Lashes which doubtless was the Number the Jew administred to the vilest Rogues lest their Brothers should be despised in their Eyes and not heard to have been Exercised in their Eyes and not heard to have been Exercised on the Priests Bishops and Abbots themselves though they kill'd and murder'd many Lay-men without Law or Justice they incur'd only a deprivation and instead of Hanging which they deserved sometimes no more than a suspension Temporary ab Officio In the time of King John Anno 1211. The Pope Excommunicated him and gave the Kingdom of England to the King of France Paris Wend. The Pope Excommunicated Henry the Eighth and gave the Kingdom Primo Occupanti Queen Elizabeth was Excommunicated by Three Popes Pius Quintus Gregory the Thirteenth and Sextus Quintus Anno 1308. The Pope Excommunicateth Andronicus Emperor of the East and setteth up the King of Russia against him Bzou So he dealt alike with the East and Western Emperors Excommunications have brought the Venetians to extreme Straights formerly therefore they are yet no Friends of it Dandalus Duke of Venice was compell'd by Pope Clement the Fifth to Crouch under the Table Chain'd like a Dog before he could obtain Peace for the Venetians The Pope Excommunicated John King of Navar and Granted his Kingdom to the Spaniards Nicephorus Phocas Emperor of the East was Excommunicated by Polyeuchus then Patriarch of Constantinople because he had been God-father to a Child of Theophania Wife to his Predecessor and after his Predecessor's Death Married her Pope Zachary deposed Chilperick the French King and gave the Crown of France to Pepin The two French Kings H. 3. and H. 4. who were Assassinated had great Guards whereby it appears though Princes may secure themselves in Vaults and Caves from Thunderbolts yet can they not against the Bishops of Romes Ignis Fatuus of Excommunication but that to Assault them Per medios ire Satellites Et perrumpere amat saxa potentius Ictu fulmineo Eight Emperors were Excommunicated by Popes who were these Frederick the First Frederick the Second Philip Conrad Otho the Fourth Lewes of Bavaria Henry the Fourth and Henry the Fifth The Emperor Henry the Fourth Fought in Threescore and Two several Battles and had for the most part Victory he was Excommunicated by the Pope and to obtain his Absolution came Three Days together bare-foot to the Gates of the City Canusium where the Pope then was and with much difficulty obtain'd it The Catholick Majesties of Spain cannot secure themselves from Excommunication without Money nor their great Vice-Roys in America for a Rebellion was Raised in Mexico by the Arch-Bishop there Excommunicating the Governors the People by Superstitious Episcopal Education made more afraid of the Counterfeit Power of the Keys than of the true Power of the Sword and will side in Rebellion with the Bishop against the Secular Governor men may talk therefore and believe what they please that the Supremacy of the Temporal Sword is Consistent with the Spiritual of Excommunication but when it comes to Trial amongst a Superstitious People they will be very much deceived and perhaps Ruin'd Bzovius de Pont. Roman 611 612. to maintain the Power That the Popes may depose Kings
Recites a Catalogue of above Thirty Kings and Princes deposed by them all which pretended Power of Excommunication and if Bishops are granted the same Power of Excommunication which Popes have what hinders but that British Popes and British Bishops are thereby granted when they dare and have opportunity to Excommunicate and Depose Kings as well as the Romish Popes and Bishops who are as quiet as the British till they have opportunity and dare shew their Teeth Pagan Priests claim Supremacy in Judgment above Kings This was commonly practised by the Pagan Priests whom the Pope and Bishops follow to claim Supremacy in Judgment Jure Divine over their Kings to which purpose Tacitus speaks lib. 4. cap. 2. That the Priests amongst the Germans took on them the Power of Judicature not by Commission from the Prince but by Command pretended from God whom they account to be then in presence and to be assisting in their Fights which Power claimed by those ancient Pagan German Priests is no other than the Jurisdiction at this day claimed by the later German Arch-Bishops and Bishops over their Emperors The like Power long before them was claimed by the old Aegyptian Priests over their Kings whom they thereby divers times Sentenced and put to Death How vain the hopes are of obliging Bishops either by their Duty of Allegiance to their Native King or by Benefits or Oaths it appears by the Examples following Bishops not to be obliged by Benefits or Oaths When William the Conqueror came in he took this Kingdom from the Gift of the Pope and promised in consideration thereof to hold it Feudatory of him and thereupon coming hither with a Bull and an Hayne of St. Peter and other Romish Trinkets the Bishops who were then more Potent than the Temporal Barons forsook Edgar Atheling their Native Prince and the unquestionable Lawful Successor and betrai'd the Land to a Foreigner though he after served them in their kind and left not a man of them to sit in their Sees Henry the First after the Death of his Queen Matilda Married Adeliza the Daughter of Godfry Duke of Lorrain when she was to be Crowned Ralph Arch-Bishop of Canterbury who was appointed to Crown her first came to King Henry sitting Crowned in his Chair of State asking him Who had set the Crown on his head The King Answer'd He had now forgotten 't was so long since Well said the Arch-Bishop whosoever did it he did me wrong to whom it belonged and as long as you had it thus I will do no Office at this Coronation Then said the King do what you think good Whereupon the Arch-Bishop took off the Crown from the Kings Head and after at the People's intreaty set it on again and so proceeded to Crown the Queen It was a sufficient favour that the King appointed him to Crown his Queen and whosoever Crowned himself it was fit the King should have his own choice if done by a Bishop who should do it But the Arch-Bishop will have the Power of a Pope or none to put on and take off the Crown from a King at his pleasure so that unless well paid if he please the King shall not be Crown'd And all this Imperious Pride pâ—oceeds from his Imaginary Power of Excommunication and the Profuse Bounty of Kings towards Bishops which doth not oblige but disoblige and cause them to despise their Benefactors who have Raised them to Revenues equal or Superior to their ownâ— Of which a notable Example appears in Hubert another Arch-Bishop of Canterbury Anno Domini 1021. The Feast of the Nativity approaching King John and his Queen appointed to keep that Festival with great Magnificence at Guilford Hubert Arch-Bishop of Canterbury being in disfavour of the King to shew how little he regarded it and to put an Affront on him Published he would keep a Châ—istmas of as great Magnificence as the King and accordingly performed it in his own Palace with that Splendor and Multitude of Attendants Richness of Banquets Pageantry Costly Attires and Gifts at Canterbury as the King could not exceed him at Guilford Matth. Par. in Antiq. Eccl Angl. in vita Huberti Which very much Incensed the King to see himself purposely outbraved by a Priest Anno 1473. Edward the Fourth Seised on the Mitre of George Nevil Arch-Bishop of York which was so Rich with Gold and Pretious Stones that the King of the same made himself a Crown and likewise he Seised on Twenty Thousand â—ounds-worth more of his Money and Goods A vast Sum in those Days Ant. Brit. Anno 1421. The King wanting Money for the French Wars pawned the Crown to the Bishop of Winchester for Twenty Thousand Pounds Ant. Brit. So we see the Bishops Head is as Richly Crowned as the Kings and when a Bishop grows so Rich a Broker besides as to take Crowns to pawn it may be then said in no Disloyal sence The Mitre is above the Crown for the Borrower is a Servant to the Lender Which Excess of Riches Insatiable Covetousness High Titles Precedency of the Temporal Barons and till the same was alter'd by Act of Parliament Precedency of the Arch-Bishop of Canterbâ—ry of the Kings Brothers themselves Elevates Prelacy to so great a height of intolerable Pride and makes them so much over-value their own Merits as 't is impossible to oblige them by Benefits Bishops perfidious to the English Kings Henry the Second Raised Becket from nothing to be Chancellor of England and after to be Arch-Bishop of Canterbury and to have the Education of his Son yet as soon as he saw himself invested with the Power of Excommunication he moved all the other Bishops being under the Oath of Canonical Obedience to him and Threatned the King that His Sword strook only with Temporal Death but that of Bishops strook the Soul with Eternal Death to Hell The difference between the King and the Bishop was the King would have it Ordained That the Clergy-men who were Malefactors should be Tri'd before the Secular Magistrate as Lay-men were this Becket Proudly opposed and said it was against the Privileges of the Church and therefore against the Honor of God and very high and hot the Contentions were about it till at last Becket condescended to assent to the Ordinance Salvo Jure Suo the King liked not the Clause as being delusive of the Ordinance at last with much ado the Arch-Bishop yields to this also and set his hand to the Ordinance and takes his Oath to observe it But going homewards his Cross bearer and some other about him blamed him for what he had done whereupon the next day when they met again he openly Repented his former Deed Retracts his Subscription and openly sent to the Pope for an Absolution of his Oath Which the Pope not only granted but incouraged him to persist in the Course he had begun The King seeing his Perjury and that there was no prevailing by fair means Seises on his Temporalities and
John Stratford Arch-Bishop of Canterbury on whom the King likewise laid the blame of his Wants writes a proud Letter to the King and desired him and his Council without delay to deliver the said Prisoners otherwise he plainly writes That according to his Pastoral Charge he must proceed to the Execution of the Sentence of Excommunication concluding how notwithstanding it was not his Intention to include the King Queen or their Children so far as by Law they might be Excused It was well for the King he was in the head of a brave Army in France for if he had been single as his Father was they who durst Menace him amongst all his Forces in the Field if he had lost the Day as his Father did were as likely to bring him for a French Pension to as miserable a destruction as they brought his Father but by Gods Providence he proved afterward Victorious but first Replied by another Letter to the Arch-Bishop That Relying on his Council he was first put on the Action of the French and that he had promised and assured him he should not want Treasure to perform the work and that notwithstanding by the negligence and malice of the said Arch-Bishop and his Officials those Provisions Granted him by his Subjects in Parliament were in so slender proportion Levyed and with such delays sent over as he was pressed of necessity to his great Grief and Shame to Condescend to the late Truce with the French though extreme Wants charged with mighty Debts forced him to throw himself into the Gulf of the Usurers in such sort as he began to look into the Dealing of his Officers some of which upon apparant notice of their ill Administration of Justice their Corruptions and Oppressions of his Subjects he removed from their Places and others of mean Degree he Committed to Prison and there detained them to the end he might find out by their Examinations the truth of their Proceedings Then he charges the Arch-Bishop with his own Corruption and declares how himself being under Age had through his ill Council made so many Prodigal Donatives prohibited Alienations and excessive Grants and Gifts that thereby his Treasury was utterly Exhausted and his Revenues diminished and how the Arch-Bishop corrupted with Bribes Remitted without reasonable cause great Sums which were due unto him applying to his own Use or Persons ill deserving many Commodities and Revenues which should have been preserved for his necessary Provisions and concluded Unless he desisted from his Rebellious obstinacy he intended in due time and place more openly to proceed against him and the King before the Arch-Bishop Submitted caused a Letter to be sent to the Pope from the Parliament not to make any more Collations of Benefices in England and prohibited them on pain of Death on any that should present or admit them which Resolute slighting of Excommunication both from Arch-Bishop and Pope though in the very time of War with France made the Pride of the Arch-Bishop stoop and with much ado got himself Reconciled to the Kings favour for which the King was bound to thank God and not the Pope or Bishop who gave him that Victory and Success against the French as neither Pope or Arch-Bishop dared to Excommunicate him Against Richard the Second one of the Articles brought against him to have him deposed was That whereas the Realm is immediately holden of God after he had obtained divers Acts for his own particular Ends he obtained Bulls heavy Censures from Rome to observe and perform them contrary to the Honour and ancient Privilege of this Kingdom whereby appears That even in a time of Popery the Assistance of the Pope and Bishops which were included in it was so far from being a Protection to the King that it was Destructive to him much more is the Assistance of Bishops likely to be Destructive rather than a Safety in a time of Protestancy The Bishop likewise Concurr'd with the rest and accused him That he had taken Money Jewels and Plate from them at his going into Ireland Bishops accuse R. 2. for Trifles to Depose him so far were they from seeking to preserve the Kings Life with those Superfluities of theirs where they could keep them and their Bishopricks together that they shewed their Fidelity to their Native King by endeavouring to destroy him For such Trifles divers other Articles were laid against him in behalf of the Bishops by whose doing only the King was utterly undone Truss 46. And not one of all the Bishops in England or Ireland spoke so much as one word to preserve their Native Sovereigns Life but only one namely Thomas Mercks Bishop of Carlisle Dilemma of danger from Excommunication As to the Dilemma a Prince falls under in expecting safety of Government from the Power of Excommunication of Popes or Bishops either the greater part of his Subjects will be Religious or Superstitious if Religious they will so easily see through the Superstition of Consecration and Excommunication as it will rather Irritate and Provoke them as it did in the late unhappy Civil Wars but if Superstitious will the Pope or Bishop make Use of the great Interest and Strength they gain thereby in the People to advance their pretended Spiritual Sword above the Temporal and their own Supremacy above Temporal Kings and Princes which if Resisted by the Princes of such Subjects hazards their being Deposed and losing Kingdoms and Lives together as appears by the Examples before Recited In the same danger is a Prince who Trusts a Temporal Officer whether Treasurer or other with too much Power of Money as Theocritus Anno 518. caused Amantius an Eunuch to give Justin Amantius the General of the Army a great Sum of Money to give the Soldiers to choose Theocritus Emperour but Justin distributed it for himself and so obtained himself the Empire The Western Emperours first raised the Popes to that height as to Excommunicate the Eastern Emperours the succeeding Popes to return their Advancers due thanks Excommunicated after the Western Emperour The French Kings assisted and after raised the Popes to such height that they Excommunicated Deposed and Poisoned the Western Emperour after by the same Power the French King gave them in thanks they Excommunicated and Assassinated the French Kings The Princes of Sicily and Naples had been mighty defendors of the Papacy but when they had made it mightier than themselves the Succeeding Popes took from them their Sovereignty to themselves As to the Impossibility of Safety of Princes amongst Subjects Educated in fear of Excommunication Subjects Educated in fear of Excommunication dangerous to Princes It is to be Noted as well from the Testimony of approved Authors as from the Scripture it self that amongst the Primitive Christians those who are now called Bishops but in the Original word signifie only Overseers were Parochial Bishops or Overseers and not Provincial and that they were the same with Presbyters and differ'd not in