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
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
the Doctrine of Christ for ab initio non fuit sic that a verbal Contract of words should pretend above the real Contract of carnal knowledg And the Lady Grey though it doth not appear but that she was otherwise a very vertuous Lady yet if she knew the truth of what is before mention'd concerning the Lady Lucy she cannot be excused in taking that Husband to her self who had already given the first pledg and made the cheif and real Contract of Marriage with another Woman and far happier might she have been if she had ascended a meaner but more lawful Bed for the Earl of Warwick at his return home from France finding by this Marriage his Embâ—ssage frustrated the Lady Bona deluded the French King abused and himself made a stale and the disgraceful Instrument of all this deeply resented and waiting his time raised an Army and by surprize took the King Prisoner and presently conveyed him to Middleton-Castle in York-shire to remain there in safe custody with the Bishop of York where if he had not by fair words and Money gotten his Keepers to permit him the recreation of Hunting and thereby means to escape he had lain at Mercy And after he was escaped and had gather'd sufficient Forces whereby he made the Earl of Warwick fly to the French King where he was honourably received yet the Earl returned again so Potent with the French joined with the great party he had in England that the King was fain to fly to Burgundy and the new advanced Queen to take Sanctuary at Westminster And though her Husband again returned and by a hazardous Battel wherein Warwick himself and many other Lords were slain he recover'd again his Kingdom yet he had so little quiet and less security that what injoyment she obtained of him was always in fear and danger of the Field and other Competitors of the Bed after a man guilty so more unhappy then her self and when she lost him by death she lived to see those Remains of him he had left her two hopeful Sons most cruelly Murther'd and for the conclusion of all her self confined to the Monastery of Bermondsie in Southwark and all her Goods confiscate by her own Son in Law Henry the Seventh yet no just cause appearing against her In which Monastery in great pensiveness within few Years she died There is a Case reported by Sir Jo. Davies and likewise mention'd by the learned Dr. Godolphin in his Repertorium Canonicum 488. to have happened in Ireland which was this G. B. Esq had Issue C. B. on the Body of J.D. whom he had never carried to Priest or Temple but his Son C. B. Desertion of a Woman after a Child for a richer in Ireland was begot by natural marriage without any Pontifical Ceremony About Sixteen Years after G. B. having found a Lady who was richer and of a greater Estate and Reputation then his first Woman by whom he had his eldest Son C. B. Marries her with assent of her Friends by whom he had Issue E. B. and died after the death of G. B. the said C. B. his reputed Son and his Mother being both left alive continued silent by the space of nine Years 'till they happened to have one of their Kindred Bishop of K. by whom they then were encouraged by new hope to obtain their Right who it seems not experienced in the Forms of Judicial Proceedings without any Libel exhibited and not Convocatis Convocandis proceeded to take the Depositions of many Witnesses to prove that the said G. B. Twenty-nine Years before had lawfully married and took to Wife the said J. D. Mother of the said C. B. And the said C. B. was the Legitimate and lawful Son and Heir of the said G. B. And these Depositions so taken the said Bishop caused to be ingrossed and reduced into the Form of a solemn Act and having put his Signiture and Seal to that Instrument delivered the same to C. B. who publish'd it and thereupon alledged himself Son and Heir to the said G. B. Hereupon an information is put into the Castle-Chamber in Ireland against the Bishop suggesting a Conspiracy to Legitimate C. B. Son and illegitimate E. B. the Daughter of the said G. B. And for this Practice the said Bishop and others were Censured This Case and the foremention'd Case of Kenne are both contrary one to another and both contrary to the Law of God In Kennes Case the wrong Heir is Legitimated by the nullifying of a lawful Marriage consummate by carnal knowledg and birth of the right Heir by Sentence of the Spiritual Jurisdiction and there the Common-Law will not releive the right Such Faith they say they are bound to give to the Spiritual Sentence whether right or wrong whether with cause or without cause until the Spiritual Judg revoke his own Sentence himself but here where a right Heir is made Legitimate by Sentence Declaratory of a lawful Marriage between the Father and Mother of the right Heir in the Castle-Chamber the Common-Law will Legitimate the wrong Heir and will give no faith to the Sentence of the Spiritual Judg if that they think it wrong so it seems the Common-Law in Westminster-Hall and the Common-Law in the Castle-Chamber are very contrary one to another as to the point of giving faith concerning Marriage and Legitimation to Spiritual Jurisdiction yet both contrary to right and destructive to the lawful Heir according to the Law of God and both give faith to Common and Canon-Law above the Supreme Law and Legislator Amongst the Greeks the manner of the Contract of Marriage was The Parties going to the Temple before the Priest the Man swore in the presence of Witnesses Se sponsam post concubitum invitum non deserturum That he would not after he should have lain with the Woman forsake her without her consent Arch. Att. 156. The like form of words in the Marriage-Contracts was used by the ancient Romans who shall rise up in Judgment against the Popes who unless Parties mumble the aforemention'd Nonsense of Verba de praesenti give Licence for Money to deceive and desert a Thousand though they have never so many Children by them and to make all Women common and to their own Priests to give example being interdicted all verbal Marriage that they may have the more liberty to abuse the real and to take and leave all they please and as oft as they please The like do the Guiny Priests who converse with the Devil and their form of Contract of Marriage is no doubt according as he will have it For the Woman is there sworn to the Man that she will not desert but the man swears not to her nor will oblige himself by any verbal Contract but is to be left as free as any Popish Priest whatsoever Desertion after deflouring hath caused Seditions and Civil Wars This deflouring and desertion was a while in fashion amongst the Roman Nobles and Patricians who
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.
I knew one who used when he had been cited to make Presentment according to the Charge in the Book of Articles to the Bishops Court he used always at his Return from Court to boast that he had presented omine bene and thought his Conscience well discharged whether all was ill or well as long as he presented something in his kind of Latine which he understood not The Evils are likewise considerable enough in keeping up still this old Popish Language in the written Instruments of Bonds Charters and Patents you shall not have a Bond in Latine written by an ordinary Clerk or Scribe in the Countrey but he is apt to mistake sometimes he will write Wiginti for Viginty Quadraginta for Quadringenti Quinquaginta for Quinginti or the like or mistake in the Dashes for if those too be not More Clericorum 't is as bad as false Latine yea to put in true Latine where they use to write it false may be dangerous for you run a hazard either to lose your Money or to fall into the misery of a Common Law Demurrer or a Chancery Suite which costs many times more than the Principal is worth to recover it Then further if the Obligor or Obligee understand not Latine nor can examine the Writing to be Sealed the Scrivener or Clerk may take Money of one part and Cheat the other as he pleaseth Then as for Latine in Charters and Patents they are Penn'd in such obsolete uncouth and Barbarous Terms that the King is many times abused and deceived in his Graunt and the Grauntees likewise and fall often into tedious and wastful Suites about a word which if they had been in English would never have been nor happen'd As bad mischiefs likewise often fall out by the Physician 's using this Popish Language in his Bills as by the Lawyers for the Apothecaries Boys though they have been at School know not all the words in the Dictionary nor can they find there the Barbarous Words and Terms of Latine or Greek Physick nor their Antick and unnecessary Notes or Characters of Weights and Measures So that oftentimes by mistake either of the Ingredient or Dose many a Patient is thereby Poison'd and kill'd and be he Protestant or Papist they find alike that their Implicite Faith in the Doctors Latine did not save but destroy them though they come not to complain after they are dead Again to keep Laws and Judgment in Latine shews that Bishops are not as they falsely pretend Successors to Christ nor to the Apostles for those who had mission from them had the gift of Tongues purposely that they might Preach to every Nation in their own Language as appears Acts 2.7 And they were all amazed and marvelled saying one to another Are not all these which speak Galileans And how bear we every Man in our own Tongue wherein we were born Parthians and Medes and Elamites and the dwellers in Mesopotamia and in Judâ—ea and Cappadocia in Pontus and Asia Phrygia and Pamphylia in Aegypt and in the parts of Libya about Cyrene and strangers of Rome Jews and Proselytes Cretes and Arabians we do hear them speak in our Tongues the wonderful works of God And 1 Cor. 14.18 I thank my God I speak with Tongues more than you all Yet in the Church I had rather speak five words with my Vnderstanding than Ten Thousand words in an unknown Tongue To Judg a Nation therefore in an unknown Tongue is Anti-Christian and Anti-Apostolick Though the Turk prohibites Translation of his Alcoran out of the Arabick Tongue into the Turkish Language yet he permits the People to have matters of Justice administred to them in their own Tongue In old Rome the Forms of Actions and Judicial Proceedings were for many Ages kept hid by the Priests in secret amongst the pretended Sacred Rites and Ceremonies of their gods which matters of Religion and Justice were by most of the Ancient Priests kept in a Language unknown to the People under the name of a Sacred Language and only understood by the Priests one of these Books of Forms Cneius Flavius a Clerk to one of the Priests Copied or Translated and Published one to the great Indignation of his Master and of all the rest of the College of Priests But so grateful was the doing the same to the People that they advanced him to great Honours and made him a Curule Aedile only for doing the same In the Councils of Venice the Nobles are bound to use the Venetian Language and when any hath begun to speak Latine they have him in great Dislike clapping their hands and crying out hold hold Govern Ven. 26. In China though the Languages of the Provinces differ yet have they one General Court-Language call'd Quonhoa for their Courts and Writings which is common through all China by means whereof the Magistrate need not in every Province to learn a new Language Though the Persian Empire was very great and contained an Hundred and Twenty Provinces and every Province had a Satrapa or Sheriff to Govern it yet Esther 1.22 Ahasuerus sent his Writs unto all these Sheriffs into every Province according to the writing thereof and unto every People after their own Language The Greeks and Romans had their Proceedings in their own Language And in Germany all Law-Suites are in the German Language as saith Clapmarius de Arcan Dom. P. 119. Constitutio imperii est ne in Camera lites alia Lingua intendantur nisi Germanica Jerem. 5.15 Threatens as the greatest Plague I will bring a Nation upon you from far and after he saith a Nation whose Language thou knowest not neither understandest what they say Their Quiver is an open Sepulchre they are all mighty men and they shall eat up thy Harvest and thy Bread which thy Sons and thy Daughters should eat they shall eat up thy Flocks and thy Herds they shall eat up thy Vines and thy Fig-trees they shall impoverish thy Feneed Cities wherein thou trustedst with the Sword And what do Bishops with their Latine and false Latine and the whole Language of the Beast but the same This is a great Evil yet would be Remedied with a word and would make his Majesties Name Renowned to future Generations that he was the first King of England who vouchsafed to send his Commands to his Subjects in the same Royal Language which he spoke himself They Judg for Fees and not for Salary Bajazet's fury against Judges taking Bribes In the time of Bajazet the Fourth the Turkish Kingdom growing in Greatness grew likewise in Corruption but especially in the Men of Law and Judges of his Courts who made all Justice saleable for Bribes whereat Bajazet grievously inraged commanded divers of the same Judges to be apprehended determining to the Terror of others to have executed them whose dangerous Estate was much pitied by Alis Bassa and other Courtiers they perhas selling their Places to them and thereby forceing them to sell Justice to others yet none of
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
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
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
and no Certificate of Bishops hath power to take that right from them 7. Here the wantonness of Widows is forbidden who are for new Husbands as soon as the old is put in his Grave whereby who are Fathers of their Children is made uncertain 8. Here is no false Fathering of Children on those who are within four Seas 9. Here is no punishing Men twice for one offence once by the Temporal Court and then by the Spiritual Court or contrary punishments by contrary Courts one by the Contentious Court and another by the Penitential Court 10. Here is no Auricular Confession of their Wives or Daughters by Priests in Temples or Chambers and defiling thereby of their Families 11. Here is no punishing of Women for bringing forth Children nor the Murders of so many Infants caused thereby as by the Papist Laws is continually done Yet I conclude though the Law of the Turk is far better than that of the Pope and shall rise in Judgment against such as plant his Canons in their Courts in defiance of the Law of God and Nature I think neither a fit Rule to judge Marriage Legitimation or Succession by CHAP. V. Marriage Filiation Aliment and Succession not to be judged by Ecclesiastical Laws THE Question is Whether Marriage Legitimation and Succession ought to be judged by Ecclesiastical Laws No English Lawyer can mention my Lord Coke without great honour but how he came so biass'd as to endeavour to set up Papal and Episcopal Laws under the name of Regal appears not Object 1 It is objected by Coke lib. 5.1 part 40. in Cawdryes Case That the Kingdom of England is an absolute Monarchy and if the King cannot Authorize by his Commission or Writ Ecclesiastical Judges to determin and judg those great and important Causes of Matrimony Divorce and general Bastardy by Certificate of the Bishop who is the Ecclesiastical Witness and Judg both of Fact and Law and by the Canon Laws which by use and custom are now our Ecclesiastical Laws Then he is disabled to be supreme Governour of this Realm in all Spiritual things or Causes as well as Temporal according to the Oath of Supremacy due to him And that he could not then cause Justice to be administred to his Subjects in these so great and important causes of Matrimony Divorce and general Bastardy on which depends the strength of mens Descents and Inheritances This I conceive though not in the same words yet in sence and substance to be the weight of my Lord Coke's Argument whereby he would make use of Marriage as one means amongst his many other to set up an Ecclesiastical Law and Judg over the Temporal Freeholds and Inheritances and other Birth-rights of the Subjects To which is answer'd First As to the words Absolute and Supream I suppose he intended no such absolute Monarchy or Supremacy as is not under the Law of God though it be not so express'd in the form of the Oath of Supremacy For though Regum timendorum in proprios greges Ecclesiastical Laws not needful to the King's Supremacy but hurtful Reges in ipsos imperium est Jovis then I think he doth not intend it to be above the Law of the Land seeing the King himself by his Oath is pleased to oblige himself to his People to govern according to that Law where it is not contrary to the Law of God Then as to the pretended want of Power of doing Justice concerning causes of Free-hold and Inheritance depending on marriage except by Ecclesiastical Laws and Judges that is very strange for how was Justice done in the times of Primitive Christianity for many Hundred Years after Christ when neither Bishops or any other Ecclesiastical Judges ever pretended Jurisdiction todetermin Temporal Right or Propriety but left the same to be judged by the Imperial Laws How was Justice done in the time of Henry the Second when the Jurisdiction of all Matrimonial causes remained in the Temporal Courts Richard the First his Son being the first as Matthew Paris writes whom the Clergy got by his publick Edict to give the Jurisdiction of Power and Gifts by reason of Marriage and of all Matrimonial causes to the Bishops Courts and the same Richard likewise gave them Jurisdiction of all breach of Faith Promises and Oaths whereby if much of the Power so rashly granted had not been by him so speedily resumed they had hookt to themselves the whole Jurisdiction from the King's Courts of all Contracts and Conveyances Bonds and Obligations as well as Marriages concerning Temporal Goods and Inheritances And why cannot general as well as special Bastardy be tryed at Common Law And how likewise are all Rights depending on all Marriages made during the late Civil Wars by pretence of any Ordinance of Parliament made by 12. Car. 2. cap. 33. to be tryed by a Jury and the Common Law and not by Certificate of the Bishop or any Ecclesiastical Judg to the advancement and not prejudice of Justice and a far greater expedition and advantage to the same would it be if by the like Act the Jurisdiction of all Marriages and Legitimations as it was in the time of Henry the Second were again restored to the Common-Law-Courts So likewise anciently Bastardy alledged in an Action of Trespass was triable by Jury but now usurped by Bishops as well in personal as real Actions 4. Edw. 4.35 Object 2 Coke lib. 5.1 part in the same case of Cawdry it is further alledged Circumspectè agatis gives no Jurisdiction of Marriage to Bishops That the Statutes of Circumspectè agatis made 13. Eliz. 1. of Articuli Cleri made 9. E. 2. Anno Domini 1315. of 15. E. 3. Cap. 6. of 31. E. 3. Cap. 11. give Jurisdiction of marriage to Bishops To which is answer'd That in the Statute of Circumspectè agatis there is not a word mention'd of marriage but only by it Jurisdiction is given to the Bishops of Fornication and Adultery which is not Marriage but rather Anti-marriage for Marriage is an Ordinance of God Fornication and Adultery are Ordinances of the Devil and whereas before the Jurisdiction of Fornication and Adultery as acknowledged by Coke lib. 5.1 part 488. was in Leets under the name of Letherwit or more properly Lecherwit yet had Leets never Jurisdiction of Marriage or Divorce neither consequently could Bishops have it from them As for Articuli Cleri and the other Statutes there is not a word in them concerning Marriage nor so much as of Fornication and Adultery the Jurisdiction therefore pretended was never given by any Statute Linwood likewise expounds the words of the Statute of Circumspectè agatis which gives Bishops Jurisdiction of all deadly Sins as Fornication and Adultery and the like Non intelligas de omni peccato mortali sed de tali cujus punitio spectat merè ad forum Ecclesiasticum nam si de ratione cujuslibet peccati mortalis cognosceret Ecclesia sic periret temporalis gladii Jurisdictio
henceforth all Iustices of or in the Courts where any Plea is or shall be depending taken or moved in which Pleas so depending taken or moved Bastarvy shall be alledged against any person party to the same Plea and thereupon an Issue joyned which by the Law ought to be certified by the ordinary that the Iudges or one Iudge of or in the Courts where the said Plea is or shall be depending taken or moved before the time that any Writ of Certificate pass out of the same Court to the Ordinary to certifie upon the Issue so joyned or to be Ioyned shall make a Remembrance under their Seals or his Seal at the suit of the Demandant or Tenant Plaintiff or Defendant in the Plea in which the Bastardy is or shall be alledged reciting the Issue that is joyned in the same Plea of Bastardy and certifying to the Chancellor of the King of England for the time being to the intent that thereupon Proclamation be made in the said Chancery by threé Months once in every Month that all persons pretending any interest to object against the parties which pretendeth himself to be Mulier that they sue to the ordinary to whom the Writ of Certificate is or shall be directed to make their allegations and objections against the party which pretendeth him to be Mulier as the Law of the Holy Church requireth And the said Chancellor having notice of the said Remembrance and Issue joyned and being required by the said Demandant or Tenant Plaintiff or Defendant having the said Remembrance to make the said Proclamation as aforesaid The same Chancellor for the time being shall cause to be made Proclamation in the form aforesaid And the Proclamation so made shall certifie in the Court where the said Plea in which the Bastardy is alledged another time shall be depending And that the Iudges of or in the Court where the same Plea is or shall be depending taken or moved before any Proclamation so to be made in the Chancery make one time such Proclamation openly in the same Court and also another time when the Proclamatâ—on shall be certified by the Chancellor of England and made in the form above rehearsed then the said Iudge shall award the said Writ of Certificate to the Ordinary to certifie upon Issue so joyned or to be joyned and if any Writ of Certificate be made or granted before that all the Proclamations in the form aforesaid be made and certified that then the said Writ of Certificate and the Certificate of the Ordinary thereupon made or to be made shall be void in Law and of none effect And if any Writ before this time be directed to any Ordinary to certifie if the said Eleanor Wife of James be Bastard or not and at this time not certified if it be certified hereafter by virtue of the said Writ that the same Certificate of the said Ordinary so made be void and of none effect Rast pla fo 29.105.261.280.577.609 That one Circuit of Action is too much is well known where 't is unnecessary as on penal Bonds sued at Common Law the party injuried is repell'd from any Plea of Equity either that he paid the Money and the Creditor refuses to deliver up his Bond or to give him an acquittance or that he received an acquittance but it was since burnt by fire or he hath since by any other casualty lost it and forces him to a costly tedious and sometimes inextricable Suit for releif in the Chancery whereby the remedy unless for a very great Sum becomes worse then the disease All which Pleas of Equity and others of the like nature might have been far better determin'd in the same Court of Common-Law as is excellently well done in Scotland by admitting those Pleas of Equity in the same Court and on proof of them restricting the Penalty of the Bond to principal Interest Cost and Damage But here the Birth-right of the Subject wherein not only all his Bonds but Lands and Goods are concern'd is put to a tedious Circuit in the Chancery of Suite and Proclamations and after that again to another Circuit of Action in the Spiritual Court and then again to a third Circuit to Common-Law of Prohibitions and then again to a fourth Circuit back to the Spiritual Court by a Consultation Circuits enough to tire any horse much more any honest man yet shall he never come to the end of his journey at last or if he do he shall be rob'd with Theives and as this Statute mentions if true men fail false Witnesses shall be suborn'd against him which if he had staid in one Court and rid no Circuit at all but the matter had been there tried by Twelve good men and true at a Nisi Prius in his own Country none of these Theives or false Witnesses would have dared to appear as they presume to do in so great a Forest as London in the Chancery Ecclesiastical Courts Affidavits and Examiners Officers there aâ—terrible oppression of the Subjects or if they did they would be easily taken or discover'd There are four mischiefs appear in this Statute caused by Ecclesiastical Laws 1. Circuit of Action 2. Endless delay and costs 3. Subornation and perjury of Witnesses 4. Interfering of Jurisdictions One in ordine ad Spiritualia the other in ordine ad Temporalia one in ordine ad naturalem Equitatem the other in ordine ad Legem communem and as to the same certâ—inly a greater Calamity cannot fall on the miserable Client then to be made a Borderer between two Enemies-Countries an Hare between two Dogs a Mouse between two Cats and a Corne between two Milstones Priesthood changed changeth the Law It is said Heb. 7.12 The Priesthood being changed there is of necessity a change also of the Law Either therefore the Papists Preisthood is not intended to be changed into a Protestant-Priesthood but the whole Papal power translated in time of Popery by the 25. H. 8.21 from Rome to Lambeth must so stand for ever or if it be intended this Papal-Priesthood shall be changed into a Protestant 't is not the changing the Person from Italian to English or the place from Tyber to Thames will do it but 't is the changing of the Laws from Papal to Protestant for Papal Laws and a Protestant Priesthood are no more consistent then Fire and Water Many more great exceptions there are against Ecclesiastical Laws which my great hast forceth me to pretermit CHAP. VI. Marriage Filiation Aliment and Succession not to be judged by such Laws of England Scotland or Ireland as are Reliques of Popery and contrary to the Law of God Of the Law making Marriage a Sacrament Of the profound Popery of the common Lawyers of Transubstantiation of two persons into one person and the mischeifs thereof A Note taken at Kings-Bench of the miraculous Transubstantiation of a Shoulder of Mutton between a Man and Woman Of the Law of Transubstantiation of the Children of the Wife
Distrained or Sequestred which a Woman cannot be 3. As to return in specie and not in value I say to deliver a Woman to a Man to be lain with against her will is a Rape on the Woman and the like is it of a Man to compel him to lye with a Woman who claims him against his will 4. This indangers the lives of Man and Woman who are mortal Enemies by Poison Sword or other wicked ways when compelled to Co-habitation against their will 5. To sentence either Man or Woman to be taken in specie not in Value according to the practice of the Ecclesiastical Law bring in the great absurdity and wickedness mentioned by Fortescue p. 75 Fortescue 76. where speaking of Tryal by Witnesses in the Bishop's Court he saith If a Man and a Woman make a private contract of Marriage without Witnesses One man Sentenced to lie with two Women and punished for lying with each and after the Man and another Woman make a contract of Marriage before Witnesses shall he not in the Contentious Court be compelled to marry her and also after that in the Penitential Court be adjudged to lye with the first if he be duly required and to do penance as often as by by his own motion and procurement he lieth with the second though in both Courts the Judge be one and the self same person In this case as it is written in Job 40.17 Are not the sinews of the stones of Behemoth wrapped together or perplexed Fie for shame they are perplexed indeed for this Man can carnally company with neither of these two Women nor with any other without punishment of the Contentious Court or Penitential Court but such a mischief inconvenience or danger can never happen by the way of proceeding in the Law of England yea though Behemoth himself doth labour to procure the same Of the Law making all prohibited Marriages Null Marriage without Witnesses or Ceremony not void though prohibited The Law of the Pope and Council of Trent not only prohibited all Marriages except contracted before two Witnesses and a Priest in a Temple but makes them null and void The Law of England prohibits them but doth not make them null and void though the common practice of the Bishop's Court and Certificates contrary to Law follows the Canon of the Council of Trent and though it was made after all Forein Jurisdiction was by Act of Parliament abolished But to speak now according to the Law of God and of the Land I shall first cite the opinion of Grotius and other Authors upon it As to the Law of God Grot. de jur Bell. Pac. pag. 142. saith Si lex humana conjugia inter certas personas contrahi prohibeat non ideo sequetur invitum fore Matrimonium si re ipsa contrahatur sunt enim diversa quid prohibere quid irritum facere nam prohibitio exerceri potest per poenam vel expressam vel arbitrariam hoc genus leges imperfectas vocat Ulpianus quae fieri quid vetant sed facium non rescindunt And after he saith Indecentia est major in Actu quà m effectu saepe etiam incommoda quae rescissionem sequuntur majora quà m ipsa indecentia aut incommodum Actus ipsius If any human Law prohibit Marriage between certain persons it doth not therefore follow that it makes such Marriage void if it be actually contracted for to prohibit a thing and make a thing void are two different things for a prohibition may exercise its power sufficiently by a penalty either Express or Arbitrary and this kind Vlpian calls imperfect Laws which forbid a thing to be done but if done rescind it not After he saith For often times the indecency is greater in the act then the effect and often times the mischiefs are greater which follow a rescission then the act it self With this agrees the expression of Thamar to her Brother Ammon attempting to force her Thamar and Ammon 2 Sam. 13.12 And she answer'd him nay Brother do not force me for no such thing ought to be done in Israel do not thou this folly And I whither shall I cause my shame to go And as for thee thou shalt be as one of the Fools in Israel Now therefore I pray thee speak unto the King for he will not withhold me from thee Howbeit he would not hearken to her voice but being stronger then she forced her and lay with her Then Ammon hated her exceedingly so that the hate wherewith he hated her was greater then the love wherewith he had loved her And Ammon said arise begone And she said There is no cause This evil in sending me away is greater then the other that thou didst unto me but he would not hearken unto her For the same reason King Alcinous adviseth Medea That Medea should be returned to her Father if she were not defloured but if she were the reason will be otherwise as is remembred by Apolonius in his Argonaut So likewise the Sabin Virgins being taken by the Souldiers of Romulus Sabin Virgins their Parents raising Arms again to resoue them home when the two Hostile Armies in Battalia drew neer one another the Romans sent their Foeminine Prizes to mediate a Peace who using this argument to their friends and kindred as they stood ready to fight That it would be a greater injury to their own honour and their friends to take them from their Ravishers who were now their Husbands then their first Rape and thereby obtained it Luther to this purpose relates a story of a young Man he knew at Erfort Luther who tempting his Mother's Maid the Maid acquainted his Mother with it she with a pretence to School her Son into a better Lesson layes her self in her Maid's Bed her Son gets her with Child of a Daughter which being concealed and the Daughter sent abroad to Nurse and School and after being grown up and brought home the young Man knowing not of it married her so that she became thereby his Daughter Sister and Wife After the same being discovered the University was consulted about it who thereupon advised the Mother to repent of her wickedness but seeing the married Couple were ignorant thereof and knew nothing they advised to avoid greater offence that they should continue together Quod fieri non debet factum valet Here was a Marriage prohibited by the Law of God and Man yet when made it appears the opinion of the University was it ought not to be rescinded Law of England doth not null a marriage not according to the Common-Prayer-Book though it prohibits it I am next to speak concerning the Law of the Land which though it prohibit yet doth not null a Marriage not made according to the form of the Common-Prayer-Book The first Reason is It doth not null the Marriage of a Papist which is not according to the Book of Common-Prayer à fortiori therefore
Part. Fol. 584. saith And here is to be observed how the Statute of 35. E. 1. hath been dealt with since the 17th of E. 3. for in an Act that Year a branch of the Statute of 35. E. 1. was recited That forbad any thing should be attempted or brought into the Realm which should tend to blemish the King's Prerogative or in prejudice of his Lords and Commons which is now wholy omitted and Fol. 585. he saith Note in the Roll of Parliament of the Statute of 38. E. 3. Cap. 1. of Provisors there are more sharp and biting words against the Pope then in Print a Mystery often in use but not to be known of all men from which examples it is manifest that this came by the Fraud of the Bishops who before Printing were Masters of the Authentick Copies of the Laws appointed for promulgation and since Printing are Masters of the Press to interdict and publish what they will Accipe nunc horum insidias Crimine ab uno Disce omnes These few Frauds are discover'd in Print against the Interdictors of Printers which discovery they would likewise have interdicted if they had been able for these latter Books of my Lord Coke were prohibited to be Printed and got out in the late time of Troubles but by these it is clear which were only spoken obiter and without any inquisition after them that all they are guilty of are not discover'd and that to give either Spiritual or Temporal Judges Power to interdict the Press is to give them Power to have what Law what Gospel what Text what Translation what Canonical what Apocryphal what Scripture what Act of Parliament what Common Law what Statute what Religion what Justice what Liberty and what Slavery they please Besides which Power of Fraud and Forgery destructive to all Truth these further mischeifs follow all interdictions of the Press but I shall first answer such Objections as are made against the Liberty of it Object 1 First If Liberty of the Press should be permitted Enemies would have it equal with Friends Papists with Protestants Hereticks with Orthodox Secondly They would Print Blasphemy Idolatry Treason Rebellion Vncleanness Calumny Reviling Derision and all manner of Heresie Answ 1 To the First is answer'd 1. That it is impossible to exclude Enemies and Papists from Printing they being possess'd of so many Transmarine Presses whence they can with far greater advantage vent their matters then from any Presses in England 2. Admit they could be excluded yet in prudence they ought not but are more necessary to be admitted then Friends for those whom we use to call Friends are pessimum inimicorum genus Adulantes the worst kind of Enemies Flatterers who flatter and sooth us up in our Vices and destroy us but any truth of our Faults we shall never hear but from Enemies Plutarch therefore calls an Enemy a School-Master which costs us nothing 2. As to the matters of Blasphemy Idolatry or Uncleanness neither Enemy or Friend will so far dishonour themselves or their Cause as to Print them openly for it is against their interest As to Treason or Rebellion who that hath an Enemy doth not desire to know before-hand wherein the strength of his Cause as well as of his Forces lies and to have the War Proclaimed in Print before it begin that he may the better provide against Besides if there were but a Law made that nothing shall be printed without the names of the Author and Printer with their Additions and Designations And that all Crimes against the publick committed by Printing should be punished by Indictment according to Law and all injuries to private persons should be reparable by the parties injured on their Actions according to Damage Who would dare make himself guilty of a publick Crime or private Injury in Print to which he had set his name 3. As to matters of Heresie such as by accident become dangerous to public safety the prudence of the Legislators may where they find cause prohibit them both Press and Pulpit but not in the Thoughts and Consciences of Men As in the end of the Wars of Germany between the Lutherans and Catholicks it was Enacted mutually on both sides on pain of death That no Catholick should Preach against the Lutheran Doctrine or Lutheran against the Catholick but both should enjoy the liberty of their own Consciences to themselves This agreement was here made otherwise those bloody Wars would never have ended without a total destruction of one of the Parties And likewise such a Law were here much more necessary between dissentient Protestants who were Brethren then it was between the Lutherans and Catholicks who were mortal Enemies That no dissentient Protestant should Print or Preach publickly on any point of Ceremonial dissentiency or other matter not necessary to Salvation except in such matters as are particularly allowed by Supream Authority to exclude Popery there being Field-room enough in the Moral Law of God to exercise gifts in Preaching and matters which have the promise of this life and of that to come and no cause for any to complain who have liberty likewise of Conscience to use what Protestant Ceremonies and Form of Worship they will to themselves though they have not power to compel the Consciences of others who are dissentients But if Protestants are tolerated to Print or Preach against one another this is the thing the Papist would have and knows will in the end make them both a prey to himself But though Protestants ought not to preach one against another yet the juncture of Affairs being not at present in great Britain as before mention'd in Germany and an appearance of War Plotted by the Papist rather to begin than end with the Protestant the Bishops ought not to be suffer'd to interdict either Press or Pulpit to the Protestants against them To come at length to the further mischiefs insuing the Interdiction of the Press any Interdiction of the Press except in Cases before mention'd either to Friend or Enemy is a dishonour to the Protestant Religion as if it dared not suffer it self to be disputed or to meet an Enemy in the open field whereas in truth it is not Protestancy but Episcopacy 'T is not the Moral Law which is the Protestant Law but the Ceremonial which is the Popish Law which dares not encounter the shock of an Enemy And 't is Fiction and not Truth Vice and not Vertue which fears either Press or Pasquil 2. The Foreign Presses being impossible to be interdicted to the Papist if the English are interdicted to the Protestant he is thereby silenced and prohibited to answer the Papist let him preach what he pleaseth 3. By Interdiction the profit of the English Protestant Print-houses will be transported to Foreign Papists which will be a great discouragement to so necessary a Trade in England and prejudice to the Protestant Religion and Policy 4. The Interdiction of the Press will multiply the greater evil
because in their making there was no Consent of an House of Commons and the House of Commons being but Delegates themselves can not Delegate the Peoples Interest in the Legislative to others for Delegatus non pâ—test delegare it was an Office of Personal Trust reposed in the Persons Elâ—cted to be Members of Parliament to treat with the King and assent to equal Laws in behalf of the People they could not grant over therefore this Office of Trust to Bishops or a Synod or a Council to treat with the King and assent to Laws for the People but every Member of Parliament ought either to refuse to accept of the Election or if he accept to serve in Person All Books of Canons made by Bishops without consent of Parliament void and not by Proxy assign or subdelegate in so great a Trust as to join in making Laws for the Publick Safety and Peace Hence will follow therefore That all Ecclesiastical Canons and Laws of Synods and Councils prohibiting Marriage without Publick Bans or Episcopal Licences and all Canons prohibiting Marriage in time of Advent Septuagesima and Rogation and all Canons prohibiting Marriage within degrees of Consanguinity and Affinity not prohibited by the Moral Law of God and all Canons prohibiting Marriage not made by the Ceremonies of a Priest and Temple and all Canons of the Council of Trent making null and void all Marriages not made before a Priest and two Witnesses are all in themselves utterly void for the House of Commons never assented to their making and all Laws prohibitory of Marriage being before shewn to be contrary to the Moral Law of God and to come from the Devil P. 52. and it being here shewn that they have no consent of Parliament such Books of Canons must in both respects be of necessity null and void as being neither the Laws of God nor Man in England but of the Devil according to which Books of Canons Bishops therefore Judging of Marriage contrary to the Moral Law of God and without any positive Law of Man their Judgment must likewise be void being according to the Law of the Devil and such Persons are no fit Judges who judg according to such Laws 7. They take to themselves the Fines and Penalties of their own Judgments That the Sole and Final Cause why Bishops so eagerly contest for the Jurisdiction of Marriage is Filthy Lucre is shewn before P. 52 53. c. and the same is so great a Pillar of the Kingdom of Anti-Christ that Pope ruin'd where Episcopal Jurisdiction of Marriage is taken away take but away Episcopal Jurisdiction of Maâ—riage the Papal Power is immediately ruin'd in those Provinces wheresoever it is done 1. In regard of the infinite Treasure he heaps hereby which appears before P. 52 53. 2. In regard of the Power he gains hereby over Kings and Princes in assuming to himself the Judgment of Filiations and Successions to Kingdoms 3. By enticing Princes to unlawful Marriages contrary to the Moral Law of God and procuring them to take his Dispensations for thereby such Prince and his Successors will be in great danger as to his Title unless he expose his Interest and Religion to obtain assistance from the See of Rome which made Philip the Second King of Spain who Married Queen Mary so furious to support the Catholick Religion in the Low Countreys by Fire and Sword and to make a Law That none should succeed him in the Government of those Provinces unless he took an Oath to maintain the Catholick Religion there and maintain the Authority of the Church of Rome And this made Queen Mary so cruelly furious against Protestants in England the Title of her Mothers Marriage and her Succession depending on the Popes protection And wheresoever any Prince is promoted by the Popes Canon Laws contrary to the Right of Succession instituted by the Moral Law of God such Prince to defend his Title against the right Heir by the Moral Law of God and his Successors become assured Vassals to the Religion and See of Rome 4. The Pope by procuring and dispensing Marriages of Catholick Ladies with Protestant Princes gains a numerous increase of Catholicks in those Dominions and many times turns the whole Tide to carry Tribute to Tyber But to return to the lesser Rivers the Bishops 't is no small stream of gain flows in to them too by such an unjust Power of Bribing themselves to Injustice by exercising so Arbitrary a Proceeding as to Fine and Commute what they please and putting it in their own Purses which should go to the Publick Treasury 8. They License Dispense and Pardon all Offences against the Law for Money It is to no purpose to make Penal Laws if the Judg hath liberty to License Dispense and Pardon Offences against them and nothing better enables him to do it than to allow a Judg to Fine or Commute and to put the Fine or Commutation Money in his own Purse now the Power of Licensing Dispensing and Pardoning Offences against the Laws of Marriage or any other Law must of necessity so corrupt the Judg as he will protect and increase the Vice he pretends to suppress Hence the Popes Taxa Camerae and the Bishops Courts increase more Fornication and Adultery than aâ—l the loose Women in the Countrey They are therefore no fit Judges of Marriage 9. They cannot be known whether they are Protestants or Papists if Bishops The Laws of Marriage have a very great influence on all Religions and in all Nations but more specially God hath been pleased in England to make the same the chief means and occasion in the time of H. 8. of planting the Protestant it is therefore of very great concern for the Preservation of the same that the Judges of Marriage be Protestants and it cannot be known whether they are so or no if Bishops 1. Because the excess of Riches which the Jurisdiction of Marriage Filtation and Succession especially to Kingdoms carries with it and all other Profits of a Bishoprick joined therewith are so great as may be too much a Temptation to any unless a Saint by Miracle to be of any Religion to obtain them and Christ himself Matth. 19 24. makes this Temptation so difficult to be resisted that he saith It is easier for a Camel to go through the Eye of a Needle than for a rich man to enter into the Kingdom of Heaven yea he makes a Miracle necessary for any to obtain Riches and Heaven together for he saith Verse 26. With men this is impossible but with God all things are possible And Austin in imitation of this confesseth in effect the same difficile imò impossibile est praesentibus futucis bonis frui It is difficult yea impossible to enjoy the good things of this World and of that to come Damasus Bishop of Rome endeâ—vour'd to convert Praetextatus a great Heathen Phâ—losopher to Christianity he answer'd him Make me Bishop of Rome and I will turn
Language of the Beast into Great Britain and Ireland to infect with the same Plague all Judicatures of these Noble Kingdoms vid. How Satisdation before Judgment came in the Authorities cited Calv. Lex tit vocare They Pledg before Summons Summon before Copy Copy before Oath Punish before Contumacy Judg before Hearing or Probation and Arrest before Judgment It cannot be here objected That I proceed partially against Ecclesiastical Judges seeing the Temporal are here equally Taxed with the same Errors and I contend with the Vices and not with the Persons of either Yet so much I may affirm for Truth and shall after prove against Ecclesiastical Judges that the Papal and Episcopal Forms of Preposteration of Execution before Judgment by beginning the Original Process with Attachments Distresses Exactions of Pledges Bail Mainprize Penalties Forfeitures Confiscations Arrests and Imprisonments before a Coppy of the Declaration given and before Oath of Calumny Hearing Probation or Judgment and Outlawries and Excommunicato Capiendos both before and after Judgment were Originally brought both in the Ecclesiastical and Temporal Courts of the Kingdom of Great Britain and Ireland by Romish Bishops and Priests and Parliaments in time of Popery have been so far deceived by them to confirm their Superstitious Formularies in the Temporal Courts in so high a degree as now the Temporal Judges are not able to Reform without the Assistance of an Act of Parliament But I shall first prove that the said Forms are contrary to the Scriptures and Anti-Christian The Texts of Scripture follow Job 24.3 They drive away the Ass of the Fatherless and take the Widows Ox for a Pledg Verse 9. They pluck the Fatherless from the breast and take a. Pledg of the Poor Ezek. 18.7 And hath not Oppressed any but Restored to the Debtour his Pledg Ezek. 33.15 If the Wicked restore the Pledg give again that be had Robbed Amos 2.8 And they lay themselves down upon Cloaths laid to Pledg Psal 37.21 The Wicked borroweth and payeth not again Matth. 5.25 Agree with thine Adversary quickly while thou art in the may with him lest at any time the Adversary deliver thee to the Judg and the Judg deliver thee to the Officer and thou be cast into Prison Verily I say unto thee Thou shalt by no means come out thence till thou hast paid the uttermost Farthing Matth. 18.15 If thy Brother trespâ—ss against thee go and tell him his fault between thee and him alone if he shall hear thee thou hast gained thy Brother But if he will not hear thee then take with thee one or two that in the Mouth of two or three Witnesses every word may be established And if he shall neglect to hear them tell it unto the Church but if he neglect to hear the Church let him be to thee as an Heathen man and a Publican After the Servant who had been forgiven by his Lord Ten Thousand Talents Verse 28 Went out and found one of his fellow-servants which ought him an Hundred Pence and he laid hands on him and took him by the Throat saying Pay me that thou owest And his fellow-servant fell down at his feet and besought him saying Have patience with me and I will pay thee all And he would not but went and cast him into Prison till be should pay the Debt Verse 32. Then his Lord after that he had called him said unto him O thou wicked Servant I forgave thee all that Debt because thou desiredst me Shouldest not thou also have had compassion on thy fellow-servant even as I had pity on thee And his Lord was wroth and delivered him to the Tormenters till he should pay all that was due unto him As to Criminal Proceeding the Texts are 1 Tim. 5.19 Against an Elder receive not an Accusation unless under two or three Witnesses Numb 35.30 Whoso killeth any Person the Murderer shall be put to death by the mouth of Witnesses but one Witness shall not Testisie against any Person to cause him to die Moreover ye shall take no satisfaction for the life of a Murderer which is guilty of death but he shall be surely put to death Deuter. 17.8 If there arise a matter too hard for thee in Judgment between Blood and Blood between Plea and Plea and between Stroke and Stroke being matters of Controversie within thy Gates then shalt thou arise and get thee up into the place which the Lord thy God shall chuse And thou shalt come unto the Priests the Levites and unto the Judg that shall be in those days and enquire and they shall shew thee the Sentence of Judgment From all which may be infer'd 1. That no man ought to be Summon'd before a Judg till a Copy of the Plaintiffs Declaration be first given him For Christ saith If thy Brother Trespass against thee go and tell him his Fault between thee and him alone which is fully performed by giving him a Copy of the Declaration or Bill of Complaint and without it the same cannot be done nor the full State of the Case be Represented to him nor he take time of deliberation for an Answer And from this Precept of Christ will follow first the Ordaining of Editio vocatio in jus simul ex continenti by the Popish Theodor an Bishops in the Civil Law is a corruption and destroying of the Excellent Law of the Twelve Tables Si in jus voces atque eat which is already proved to have implied a Preceding Oblatio Libelli and was the clear Law of Nature and immutable in all Civil Actions 2. That the Law of Scotland of including the Libel in the Summons though it far excel our Summons by Writs yet it is not so perfect as the Precepts of Christ to make the Oblatio Libelli or to give the Copy of the Declaration to the Defendant before Summons for first he must be forced to send many times Hundreds of Miles to a Judg to get a Summons before the Return of which all the business if there is no Contumacy may be far better agreed and ended between him and his Brother at home Secondly If there is no Contumacy as there can be none before a Copy of the Declaration delivered by which the Demand is made it is unjust to lay such a Punishment on a Defendant to run Hundreds of Miles to his great Cost and Trouble in England to appear before a Judg at Westminster and when he comes there no Bill in Chancery nor any Declaration at Common Law is put against him And in Scotland to appear at Edenburgh at a longer day when he was ready and tender'd to satisfie his Brother at home in a shorter and he refused only to put him to Charge and Vexation Thirdly It is unreasonable and unjust that the Plaintiff should be compell'd to send so far for such a Trivial Formality as the hand of a Judg to his Libell'd Summons or to expect no Judicial assistance from it if he gratis make Oblatio Libelli as
Christ Commands for if as is the Modern practice in Scotland the Lords of the Session never read a word of the Libell'd Summons and they may be Blasphemy or Treason for ought they know yet they set their hands to them as fast as they can be brought and I have my self set my hand to Hundreds of them and that course of Summoning being by Act of Parliament made in time of Popery which we had no power to alter I thought that kind of Justice better than none at all though before Oblatio Libelli it serves to no more Use than our Latitat and Subpoena Offices and others to have a pretence of gathering Money for the People for doing nothing and perhaps if all Truth were spoken for doing Mischief Fourthly If as the ancient Practice was of Sir Thomas More when he was Chancellor of England who used to read over himself in Person every Bill was prefer'd in Chancery and consider whether it were just or no before he would grant a Summons of Subpoena and of Skene in Scotland who as I have been informed there would likewise read the Bills himself before a Summons was granted and if he found them not fit would tear them in pieces and throw them over the Bar. It hath been therefore to no purpose for the Plaintiff to have sent to Judges for Summons who might see that Injustice in his Bill which the Defendant perhaps might not see or might be willing to pass by if it had been first shewn to him at home Fifthly It is unjust for the Plaintiff to make his Oblatio Libelli first to the Judg and to get a Summons thereon before he doth it to the Defendant for the Defendant may perhaps if shewn him shew the Plaintiff so just exceptions against the Bill as may satisfie the Plaintiff himself and save both Parties the Trouble and Cost of going further to Law or he may amend his Bill on such exceptions and if he think it just after amended insist on the same further to shew his bill first therefore to the Defendant though his Enemy if he will except against it is more profitable to the Plaintiff for amendment than if he shewed it his own Councel for a Friend may never shew the Party his Faults as an Enemy will As it is more Just so it is therefore more safe first to make the Oblatio Libelli to the Defendant before it be done to the Judg. Sixthly The Justi dies or time of Returning an Answer cannot be agreed without great Trouble and Cost unless there be first an Emparlance between the Parties without troubling the Judg. Against offend the taking out of Execution on Judgment acknowledged by assent and on Recognizances and Statutes in England and on Registred Bonds in Scotland without Summons or Oblatio Libelli or Warning or Demand Seventhly Because Judges use to take Caution or Plegii de prosequendo of the Plaintiff and the like Pledges of the Defendant purposely to hinder Agreement according to Christ and to set them by the Ears to get in Fees to the Court. 2. That no man ought to be Summon'd before a Judg until a Productio Testium first made to him For Christ saiâ—h If he will not hear thee then take with thee one or two more that in the Mouth of two or three Witnesses every word may be Establish'd whence will follow that the Mock-Probation still falsely mention'd in the end of every Declaration Et inde Producit Sectam and Summons on Motions and Rules of Courts founded on the Infamous Credit of Affidavit-men are abominable Reliques of Popery and Anti-Christian 1. Because they are not produced to the Defendant where he dwells that he may except against their Persons if he hath cause and if he hath none he may see them Sworn and if they Swear false he may have his lawful Remedy against them 2. Because the Affidavit-men are single Witnesses whereas Christ Commands two or three Witnesses 3. They are both such as live in London and Westminster and such as come out of those Parts altogether unknown to the Judges and Masters who take their Oaths if therefore they will proceed on the Testimony of single Witnesses seeing by the Precept of Christ Actor Sequitur forum rei and the Plaintiff is to carry his Witnesses to the Defendant it is far more Just and Equal that the Affidavit be either taken by Commission in the Parish where the Defendant lives or every Minister be Authorized to take the Oath on notice given to his Parishioner to be present if he please at the Taking 4. Because generally the Affidavit-men are Knights of the Post and common Swearers for Hire who will Swear any thing for a Dinner 5. Because Probatio non admittitur in contrarium whereby Courts overflow with Perjury And as is said Jer. 23.10 Because of Swearing the Land mourns 3. That a Defendant can be guilty of no Contumacy till an Oblatio Libelli and a Productio Testium first made to him For Christ says The Plaintiff is not to tell the Church till two Refusals made by the Defendant one to hear him single the other when he haâ—h produced his Witnesses 4. That no Pledges or Distress ought to be taken till Judgment For Ezek. 18.7 says The Debtour ought to be restored his Pledg And Christ Commands on Contumacy shewn by two Refusals immediately to tell the Church so he is to do nothing further till the Sentence of the Church is pass'd and very just for thus far none hath Judged whether his Cause is just and his Brother Contumacious but himself and he ought not to be Judg in his own Case and much less be his own Carver of Execution by Pledges and Distresses on his own Authority without the Sentence of a Judg. Secondly Otherwise the Ass of the Fatherless the Ox of the Widow and the Pledg of the Poor would be taken from them without Hearing of their Cause and the Creditor Land-lord and every other Person would be Judges in their own Case and Carve Execution for themselves Thirdly Though the Poor may be able to give Convenotinal Pledges yet they are not able to give besides Judicial Pledges when they are enforced to sue for their Conventional unjustly seized and detained from them nor though they are able to Mortgage the Right of their little Living to be seized when they fail paying Interest for the Debt yet are they not able to leave Possession by which they must live if the Creditor unjustly enter before a Judgment Declaratory and a true Account made by him and a Return of the over-plus whereto the Mortgage amounted above the Debt So though a Poor man is able to grant a Rent-charge and a Clause of Distress if he be in Arere on paying Interest for the Debt yet if the Creditor wrongfully or excessively Distrain he is not able on a Replevin to give Pledges de Prosequendo and de Returno habendo to take a Conventional Distress therefore or
Votes whereby no Judgment can be given as in a Ceux que Droit Case where are many Competitors for the same thing A. B. C. D. the first Judg may be for A. the second for B. the third for C. the fourth for D. whereby no Judgment can be given 4. In a General Issue or Special Issue some Jurors may be of the Gonscience that such Witnesses are not above Exception nor to be credited others that they are others that such Evidence doth not conduce to the Issue others that it doth whereby no Verdict could be given were they not compell'd by that unconscionable way of starving them to agree against their Consciences 5. If we come from Judges of the Fact to Judges of the Law who allow themselves better Quarters than the other and will not be kept without Meat Drink Fire or Candle-light till they pass their Sentence yet the Courts in Westminster consisting of the equal number of Four Judges are often divided two against two and what if the Vote of the Chief Justice hear it against the other yet one mans opinion being as good as another yea the Puisne Justice being oftentimes of greater Age and Ability than the Chief his Sentence will not carry the Reputation of Justice neither may it be thought worth the Labour and Cost to have an Associate joined with him if his Vote must be null'd by the others he had been better at first sate and Sentenced alone and of more esteem his Sentence would have been had it never been opposed by a contrary Sentence of greater esteem than that to help which there hath been sometime added a Fifth Judg in England and in Scotland where the number of the Lords of the Session or Judges was Fifteen with a Numero Deus Impare gandet but in neither of these is this happy Imparity so much to be found as in one who cannot be divided in the least proportion against himself whereas Four may be divided Two against Two and Fifteen Eight against Seven which will leave a Sentence very Instable and Suspicious for many times the Minor Party are the Melior 6. In a numerous Court they may all vary in the state of the Question to be Voted if the President should have Power to put what Question to the Vote he pleaseth if he propose either a General Issue or State of the Question the Residue may each raise his Special Question which will need a Decision before the General can be Voted as a Jury often do in a Special Verdict if the President propose a Special Iâ—sue or State of the Question the Residue again may every one raise his particular or Individual State of the Question and think the Special cannot be Voted till the particular be decided whereby they will be able no more to agree in the Special than the General unless used as a Jury none of which Inconveniences can fall out in a single Judg but he easily gives his Sentence in the Roman manner either Absolvo or Condemno or Non liquet in England they use to send two Judges in every Circuit because one sits on Civil Causes in the Nisi prius side by himself and the other on Criminals in the Crown side of the Town-Hall where they come by himself which fashion being imitated in Scotland and two English Judges usually in every one of those Circuits being sent to sit both together in one Criminal Court for there are no Nisi Priuses or Tryals of Civil Actions in the Circuits of Scotland proved inconvenient and though but two they often differing one with another left Business not done or at least much delayed whereas the Custom of Scotland before was much better who used to send but one Judg at a time in their Circuits or Justice Eir whom they call the Justice General 7. Where Justice is appointed to be done by a Quorum it is extream difficult and many times impossible to get them together that this Clog upon Civil Proceedings was brought in by the Romish Bishops to the same intention which is before mention'd to weaken the Roman Tribunes appears from the very name that 't is Latine Restraining Justices of Peace to Quorums destroys Justice and the effect of it destructive to Justice for wheresoever a Justice of Peace is limited to Act single without a Quorum he is as good as to that matter disabled to Act at all especially for the Poor who have most need of them and are not able to draw Quorums together as the Rich may In no less danger is the Publick safety of his Majesty and his Protestant Subjects by Restraining or at least making doubtful the Authority of the Sheriff who is his Majesties Lieutenant Sworn and Vice Consul of his Province or County to oppose a Rebellion or Invasion without a Quorum of Deputy Lieutenants or Justices of Peace who though Persons of great Honour Ability and Valour to serve their King and Country yet if Fetter'd together in Quorums like Plurality of Generals in an Army by how much of higher Courage and Conduct they are by so much the more are they apt by Ambitious Emulation to cross one another To restrain Sheriffs by a Quorum dangerous to Publick safety and bring the Army in confusion whom to follow An Example of which happen'd in the Alarm in Dorset Decemb. 9th 1678. of a Foreign Enemy landed on that Coast which I have the more Reason to remember happening to have been prickt Sheriff but not Sworn for that County when as soon as the noise was spread some ran to the Sheriff some to one Deputy Lieutenant some to another some to one Justice of Peace some to another some gathered together East some Wist some North with great Courage and Resolution to Fight the Enemy wherever they found him but in such a Confusion they knew not who was to Command or who to Obey and pity 't was to see so many stout men so unarmed undisciplined and unprovided as they were and certainly if they are suffer'd so to continue in that and other Countries it is impossible for the Protestant not be Surprized by whatsoever Rebellion the Native or Invasion the Foreign Papist unless God as he hath hitherto done discover their Plots by Miracle Design and Attempt neither doth appear any more ordinary way of Remedy than freeing the Militia from Quorums who without their default may have Popish Spies unknown crept in amongst them which is impossible for any but a single Person to prevent to discover their Councels and cross all their Actings and will be utterly disabled either to Arm Train or Discipline a Militia as were necessary all which would be easily done by a Sheriff who is a single Person if his Ancient Legal Authority were as is most fit restored to him to Act singly for the preservation of his Country without a Quorum and his Honour and Interest would oblige him had he undisputable Authority to Muster Arm Train and Discipline those
the Servandes of the House or other famous Witnesse and sall execute their Offices and Charge and thereafter sall offer the Copie of the saidis Letters or Precept to ony of the Servands quhilk gif they refuse to do that they affix the samin upon the Èœett or Dure of the Persones Summoun'd and siklike gif they get na entress they first knockand at the Dure Sex Knockes they sall execute their Office before famous Witnesse at the said House and dwelling place and affix the Copie upon the Èœett or Dure thereof as said is quhilk sall be leiful and sufficient Summounding and delivering of the Copie and the Party and Officiar sall not be halden to give ony usher Copie bot at their awin pleasure And every Officiar in his Indorsation sall make mention of his awin Execution in manner fore said and the Partie at quhais instance the Letter or Precept is direct sall pay to the Officiar Executour the Expenses of the Copie affixed as said is and sall be taxed and given again to him the giving of the Decreet or Sentence gif he happenis to obteine And gif the Officiar heis foundin culpable in the Execution of his Office he sall be put in our Soveraine Lordis Prison and punished in his Person and Gudes at the Kingis Grace Will. Coke 4. part 99. saith The Common Pleas may in many cases proceed against their own Officers by Bill without Writ and why may not all the Subjects have the same Right as well as the Officers of the Common Pleas In London before the Mayor and Aldermen Debt and Personal Actions are determined by Bill without Writ City-Law 3. And so are Assises of Nusance ib. 4. and why may they not by Copy of the Bill be commenced better than by Writ over all the Kingdom The mischiefs of Original Writs from the Chancery Besides the Delays of Original Writs and Process by remoteness of Courts whither they are to be sent for and by the multiplications of Aliases and Pluries and the manifold dangers when gotten and executed to be again overthrown and nullified by Abatements for a multitude of frivolous Causes and Formalities and likewise for so many sorts of Variances as before mention'd of all which the Declaration might have been free if no Writ had preceded 1. It is excepted against Writs that Declarations are not amendable and it costs many times so much in amending the Misprision of Clerks in their Writs that the Plaintiff if he is not so poor as not to be able were better abate his own Writs and Declaration himself and pay Costs and buy Twenty new Writs than get one of the old amended 2. Writs Original are altogether useless except to get Money for nothing 3. They are saleable contrary to Magna Charta Nulli vendemus Justitiam and the Civil Law for Lege Julia tenetur repetundarum qui accepit aliquid ob Judicem delegatum dandum mutandum vel ob non dandum c. And what doth a Writ of Right a Justicies or any Original do besides but assign a Delegat Judg to hear the Cause in the Kings-Bench or Common-Pleas or Lords-Court or County-Court Then 't is contrary to Equity the Plaintiff should be compell'd to buy a Writ which is not only useless but pernicious to his Declaration and puts it in ten times more danger to be overthrown than if he might as he ought be permitted to use it without a Writ and the Plaintiff being to deliver a Copy of his Declaration Expensis Actoris to the Defendant 't is no reason he should be at any expence to pay Clerks for Writs impertinent 4. As to the Writ in Chancery of Subpaena Mischiefs of the Chancery Writ of Subpaena which is to be distinguished from the Writs to the Common Law Courts it is contrary to Magna Charta Nulli negabimus Justitiam for if a Poor man Sue a Noble-man there a Chancellour will deny a Poor man his terrible Writ which he uses to grant under a Hundred Pound Penalty in Terrorem Pauperum and he shall get no more of him if he do that at a greater price than the Writ would have cost but a poor begging Letter to the Noble-man to send his Answer to the Complaint against his Oppression which is no other than to bring into England the old Slavery of Rome whereby no Slaves were permitted to Sue their Lords before the Pretor or any other Judg were their Tyranny over them never so great and unjust What a wretched dishonour is it to Publick Justice which heretofore was blind to the Person that she turns now blind to the Cause and who heretofore carried the Sword in her hand Parcere Subjectis debellare superbus to have now lost her Sword and got a Crutch to become only a blind Beggar when she is to approach the Gates of Nobles neither is there any Law of God or man in England to justifie a Chancellour that he shall presume to use a different process of Concumacy against the Commons Chancellour hath no Power to Imprison Commons any more than Lords which he dares not use against the Lords for if it be not lawful for him to Issue Attachments or Commissions of Rebellion against the Lords or to imprison them then is it not lawful for him to Issue Attachments or Commissions of Rebellion against the Commons for both are equally Interested in Magna Charta and the Petition of Right not to be imprison'd without the lawful Judgment of their Peers and they being both Allies and Confederates by the said Acts to maintain the Commons Liberty The Liberty of the Commons is the Out-work which preserves the Liberty of the Lords if the Commons be Invaded though for the present such Invasion touch not the Lords yet when it hath destroyed the Liberty of the Commons the Lords will not be able to defend theirs when their Allies are lost The Liberty of the Commons is the Outwork which preserves the Liberty of the Lords the Liberty of the People is the Outwork which preserves the Liberty of the Parliament the Liberty of the Subjects is the Outwork which preserves the Safety of the King and as Solomon saith Prov. 20.28 Mercy and Truth preserve the King and if contrariorum contraria est ratio Cruelty and Fictions of Writs of Subpoena's in Chancery Latitats in Kings-Bench and Capiases without Summons in Common-Pleas wherewith they abuse the Kings name in false imprisonments of his Subjects without Crime or Cause destroys the prisonments of his Subjects without Crime or Cause destroys the Safety of the King himself and in a Case between the Duke of Lenox and the Lord Clifton M. 10. Jac. Though a Lord was not to be Committed for Contempt in a Poor mans Case yet in this Case between two Lords Chancellour Egerton said If Noble-men will commit Contempts they are to be Committed Now that the Imperial Power which hath been usurped by Chancellors to imprison the
Free-born Subject Arbitrarily at their pleasure is contrary to the Acts of Parliament both of Magna Charta and the Petition of Right so late in memory which abolish all Imprisonment both of Nobles and Commons without the lawful Judgment of their Peers so likewise is it contrary to all other Fundamental Laws of the Land made for defence of the liberty of the People which is more necessary and more dear than Life as may appear by the Reasons following 1. There is an Act of Parliament made 15. H. 6. cap. 4. That none shall Sue a Subpoena until he find Surety to satisfie the Defendant his Damages if he do not verifie and prove his Bill to be true this Statute had nipt in the Bud the Overflow of all those innumerable Fictions and Falsities which have since followed in the Suggestions of Bills in Chancery for this being made 15. H. 6. there is no mention made in all the Year-Books of any quarrel between the Common-Law-Judges and a Subpoena till 37. H. 6. which is above Twenty Years after so great a Fright had this Act falling from the Supreme Power put amongst the Froggs though now despised as a dead Logg as likewise are all the rest and it is in vain to make more unless the Honour of these is vindicated by the same Authority that made them for Chancellors as if Jura negant sibi nata they were two-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
or Sheriff or Lord of the Barony in his County unless he excepted Partiality or other just cause against him 4. A taking of Pledges of the Defendant to appear 5. To make Return of the Writ and left Writs should be Counterfeit the Chancellour was Keeper of the Seal and Sealed them It appears by the Lex Julia de repetundis Chancellour not to sell Writs and Copies of Bills and Answers that the Master of Requests or Canceller was not to take any Fees for these Writs for giving or not giving a Judg out of the Province or County where the Defendant lived for it was a great vexation and oppression of the People to be Summon'd out of the Provinces on malitious Suggestions without cause and our own Parliaments in England have often complained against the same oppression here by the Pope on whose Citations and false Suggestions without cause men were compell'd to give personal Appearances at Rome as many and as often as he pleased if any would but buy there of his Officers a Citation and to prevent this vexatious exaction of Appearances on Writs of men out of their own Counties besides the requiring of Pledges on all Common Law Writs and the enjoining of Pledges to be taken in the Chancery-Writ of Subpoena as in the Lex Julia so is it mention'd in Magna Charta Nulli vendentus nulli negabimus Justitiam vel Rectum which is intended of a Writ of Right and all other Writs whereby Right is obtained for if the Chancellour were not to take Fees and sell his Subpoena's and other Writs he would not so often by them make men Travail thorough Nine Shires to Westminster when they may have better Justice done at home in their own County on no other cause than Fictitious and Malitious Suggestions of the Plaintiff and that he may take a Fee for the same and he would Cancel according to his Office more Petitions and Bills than he would Grant but assoon as Chancellours took Fees for Writs which Sale of Right 't is likely as Polydore says came from the French then no Suit could be begun without Writ all were driven to Westminster Parties Witnesses and Juries unnecessarily and to no purpose but to inrich the Judicatories and undo the People in like manner the Plaintiffs and Defendants ought to give one another mutually Copies of their Bills Declarations and Pleas at the expenses of the Giver which is very small and easie to the Parties and not to be compell'd to buy them of the Chancery or Common Law Officers so the Chancellour had neither his Jurisdiction to Judg of Equity or his Sale of all the Judicial Parts of the same and of the Law with it from the Law of England but A-la-mode de France from the Conqueror till Magna Charta abolished his Tyranny by the Judgment of Peers and of his French Comtes by the 28. E. 1. cap. 8. by which Act that gallant King grants every County the free Election of their own Sheriff after which the Land was free from the Chancellours Troubling men out of their own Counties by his Subpoena's till H. 5. Conquer'd France by which as is usual in other Conquests some Touch of the Diseases and Vices of the Conquer'd will be return'd on the Conquerors and accordingly in the time of his Son H. 6. the Subpoena and a Chancellour with a Pretorian Jurisdiction pretended of Equity with Power of making Laws Edicts and Chancery-Orders and Forms of Writs and to Sentence above all Appeal all which Powers belonged to the Roman Pretor of which the French Chancellour was the Ape and Ours of the French and this pretended Pretorian Jurisdiction ever since hath grown so much A-la-mode partly by making Bishops Chancellors who pretended Supremacy in all matters of Conscience and had in their hands amongst the Superstitious the flaming Sword and Thunder-bolt of Excommunication partly by their Power overtopping and overawing the Common Law Judges and partly by flattering the People with doing Justice in the English Tongue which was very grateful to them and would be as grateful now in the Common Law Courts if they could get it the Chancellours contrary to the greatest Fundamental Laws and Acts of Parliaments of the English introduced on them a most lawless Arbitrary Power and Servility of a Foreign Nation to dispose of their Lands Goods Persons Liberty and Propriety at their pleasure And what is more have assumed like the old Romish Pretors the Power of making Laws Edicts Forms Writs Obligatory to the Subject's Persons Lands and Goods for Coke on the Question In what Text the Common Law is to be found saith In Forms of Writs and Forms of Entries in Courts of Records And Bracton saith Breve ad similitudinem Regulae Juris Formatum So who assumes the Power of making Writs Judicial Edicts Forms and Orders assumes the Legislative Power notwithstanding and above Acts of Parliament to dispose of the Subject's Liberty and Propriety at pleasure yet this have Chancellours done Forming divers Writs in the Register out of their own Heads Lamb. Archeion which always are Formed for the greatest Profit of the Clerks and Courts which make them and not of the People and Episcopal Chancellours have so far in time of Popery deceived Parliaments that Westm 2. cap. 24. gives the Clerks of the Chancery as good as Power to make what Writs they will and the pretence is insinuated by the Clerks De caetero non recedant querentes à cur ' Regis sine remedio or Ne Curia Regis desiceret in Justitia exhibenda whereas none who understands the least part of the Forms of Judicial Proceeding there is who doth not know that the Kings Court if he please may do far better Justice if all the new Writs made by Clerks and all the old Writs in the Register were made a Bonfire all together and none but Copies of Declaaations served without them then 't is possible to do with them which Del gation of Power to Clerks to make Writs must be void for the making of Forms of Writs Edicts or Orders is an Act of Legislation and to give Votes in Legislation is a Personal Office of Trust reposed by the People in their Representative Elected by them and by the known Law no Office of Trust can be Assigned Granted over or Delegated if the Parliament therefore please to enact themselves any Judicial Forms or Orders of Proceeding they ought to be obeyed as Laws but it would be a great injury to the People if they should Grant over the Office of Trust in them to a Chancellour and Clerks never Elected or Intrusted by the People Chancellour of England or Scotland no Pretor Let a French Chancellour be therefore what he will 't is clear no English Chancellour ought to be a Pretor Judg of Equity maker of Laws Edicts Forms or Orders of Judicial Proceeding nor any Chancellour of Scotland the full of the matters of both whose Offices though they may differ
for State-Assairs So of the Grisons Yet do the Cantons remain in the nature of several Commonwealths with several Laws and Customs which Union is very imperfect Livy lib. 2. complains of this defect of Union of Councils in Rome and saith Profecto si essent in Republica Magistratus nullum futurum fuisse Romae nisi publicum consilium nunc in mille Curias Concionesque cum alia in Esquiliis alia in Aventino fiant Concilia dispersam dissipatam esse Rempublicam And by this doth Tacitus confess it was that Rome Conquer'd Great Britain Nec aliud adversus validissimas gentes pro nobis utilius quà m quod in commune non consulunt rarus duabus tribusque Civitatibus ad propulsandum commune periculum conventus ita dum singuli pugnant Vniversi vincuntur Neither saith he was there any thing so profitable for us against the most valiant Nations as that they had no Common Council a rare matter it was amongst them to have a Convention of Two or Three Cities against the common danger so while they every one fought single they are all Conquer'd Whereas if Great Britain had been then united under one King and one Parliament of the whole Island they perhaps might have as well said of his second Landing as of his first Territa quaesitis ostendit terga Britannis So doth Justin mention of the States of Greece every one of them had at last their Councils apart and fought single whereby one after another they were all overthrown What hath United the Heptarchy of the Saxons and the mixture of Danes inseparably but the equal Mission of their Representatives to the same Parliament and what did Unite the Noble Remainder of Britains to England but the Statute of 27. H. 8.26 Enacting That all Persons born in Wales should enjoy all Liberties Privileges and Laws as other Subjects in England do and should send their Knights and Burgesses to the same Parliament with them The Glory of a King is the multitude of his People and what more Glorious for a King who hath the Royal English Scotish Irish and British Blood United in him who is the Head than to have the same United in his Parliament who is the Body Let it not offend if I mention here the late Experience of Union of the Three Parliaments in one House by the late Usurper seeing we are commanded to learn Wisdom though from the Serpent and if he under so great disadvantages of Opposition made great Benefit the lawful Prince may make far greater thereby and his Subjects likewise by his Favour participate of the same I cannot deny that it was my Fortune though I never sought it to be chosen for a County and to serve in that great Convention at Westminster Anno 1656. called then a Parliament wherein the Parliaments of England Scotland and Ireland were Convened and United in One with the same facility as they are Convened to sit in Three Places and there being then a War designed against Spain it was wonderful to see with what Expedition and Courage all things were moved towards the Design and what an Endearment it was between the Three Nations to meet be acquainted eat drink and converse together about the Common Concernments Having consider'd so far of the great Benefits of an Union of the Three Parliaments of the Three Kingdoms in One it may not be amiss next to consider the Requisits necessary to perfect the same 1. Whether an Union of Crowns be necessary to perfect an Union of Parliaments and Kingdoms It seems for the Affirmative 1. Because where the Natural Person of a King is One if the Politick Person or Capacity is not made One the one Politick Capacity may be divided against the other in the same Natural Person as on the Succession of King James to Queen Elizabeth the Queen of England had declared War against the King of Spain the King of Scotland was in Peace with them so in the diverse Rights of Two Crowns there was War and Peace at one time between the same Persons the like Doubts may arise Whether the Royal Assent may pass contrary Politicks Acts and Laws in the Parliament of one Nation to what he hath pass'd in the other in reference to the contrary Rights of each Crown Whereas if both are consolidated and made one no contrariety of Acts can happen 2. It is as dangerous to have Two Crowns as Two Marble-Chairs for they may be kept in several places and the more easily may an Usurper happen on the possession of one of them and the Vulgar be deluded to think Possession of those Signs of Supreme Honor to be equal to the Right and besides that a Fatality will follow them 3. Seeing it hath pleased God to make the Head of the Three Kingdoms One men ought to follow his Example and make the Crowns One 4. The continuance of several Crowns is apt to continue a perpetual memory of Hostilities between the Kingdoms 2. Whether an Unity of Protestant Churches is necessary to an Union of Protestant-Kingdoms It seems for the Affirmative Because if Protestant-Churches divide one against another the Kingdoms will be a Prey to the Papist and the Protestant will have none to Unite 3. Whether permission of Protestants to Excommunicate Protestants is consistent with the Unity of Protestant-Churches Neg. If the Pope Excommunicate Protestants it Unites them the firmer but if they Excommunicate one another they denounce War and destroy one another with their own hands and leave the Spoils to be divided by the Pope An Elegy on Protestants in the late Civil Wars Excommunicating Protestants LVgeat in trisidis jam moesta Britannia flammis Et doleat jam fulminibus percussa trisulcis Intonuit falsus nebulosa Tibride Petrus Et Magicis stolidum perterruit Artibus Orbem Piscator Twedae retonat multisque cachinnis Rupibus ingeminans sua fulmina misit ab Altis Becketi Lemures contra hunc torsere minaces A Thamisi gelidas Vulcania tela per auras Heu non Oceanus circum vaga Littora fusus Nec freta compescant tantis ardoribus ignes Risit Romanus Tarpeia Rupe Tyrannus Cumque suis inquit sese immisere Gebennis Pontifices Britonum per mutua vulnera tandem Ne sic deficerent inferno gurgite flammae Ipse super terram viventes igne cremabo Ecce jocum mintrat mus rodens Rana coaxat Et cum limosis ineunt certamina juncis Milvus spemque suam motis circumvolat alis Ipse paludosam sic vellem carpere Ranam Et sic ridiculum vellem discerpere Murem Englished LET Britain mourn who burns in triple Fires And struck with threefold Thunder-bolts expires A Peter false from Tyber in a Cloud By Magick Art did Thunder it aloud The Fisher-man of Tweed with many Mocks Return'd his Thunder double from the Rocks Proud Beckets Ghost ' gainst him from Thames broke forth And with Vulcanian Darts fired the North. What Ocean which her wandring Shores doth drench Or