cùm vix esset dare causam quin ratione peccati possit deferri ad Ecclesiam Object 3 Stat. Merton gives them no Jurisdiction It 's alledged That it appears by the Statute of Merton that Henry the Third writ in his time to the Bishop to certifie Marriage and Bastardy First It is to be understood therefore that in the time of Pope Alexander the Third Anno Dom. 1160. which was Anno 6. H. 2. in whose time all Matrimonial Causes beonged to the King's Courts This Constitution was made That Children born before Solemnization of Matrimony where Matrimony followed should be as Legitimate to inherit to their Ancestors as those that were born after Matrimony It is likewise further to be known that King John the Father of Henry the Third who made this Statute of Merton following was by the then Pope Innocent Excommunicated King John Excommunicated as likewise at the same time was the Emperor Otho and the whole Kingdom of England Interdicted and so remained for the space of Six Years Three Months and Fourteen Days during all which time there was no Church open for Marriages or Burials but the poorer People were buried like Dogs in Ditches and where they married God knows Through which King John was driven to such distress by his own Bishops and Barons and the French assisting the Pope against him that he was forced before he could get to be released of this Excommunication to pay the Pope vast Sums of Money and to lay down his Crown and Scepter Mantle Sword and Ring the Ensigns of his Royalty at the feet of Pandolphus the Pope's Legat and submit himself to the Mercy and Judgment of the Church Two Days some write Six it was before the Legat restored him to his Crown which he likewise received again on no better Terms then to hold the Kingdom of England and Lordship of Ireland from the See of Rome at the Annual Tribute of a Thousand Marks Silver and the Excommunication was not to be taken off but deferred till further and full satisfaction was made to the Clergy which was not done till Two Years after The Bishops being hereby arrived at so great an height of their Tyrannical Power over this King The Bishops usurped the exercise of Ecclesistical Laws by force over their Kings As that when the King having obtained absolution had gather'd a great Army to have been revenged on the French King the Arch-Bishop of Canterbury told him 't was against his Oath at his Absolution and the King in a great passion reply'd He would not defer the Business for his pleasure seeing Lay-judgment appertained not to him the Arch-Bishop presumed to threaten his native Soveraign that unless he desisted he would Excommunicate him Note therefore That in the time of H. 3. who was the Eldest Son of King John the Bishops continued to assume the Power of Lay-judments as well in Marriages as they did of shutting up of Churches in which they were made from the Pope to whom they had inforced King John to surrender his Crown and not from the King 's Writ as that Statute of Merton shews rather a proud Renunciation and scorn to answer the King 's Writ concerning Marriage then any use permitted by them to the King of the same unless he would as his Father had done lay down again his Crown to them and have Marriage judg'd according to the Law of the Pope for otherwise they tell him plainly They neither will nor can answer his Writ as appears by the Statute it self the words whereof follow 20 H. 3. Cap. 9. To the King 's Writ of Bastardy Whether one being born before Matrimony may Inherit in like manner as he that is born after Matrimony All the Bishops answer'd That they would not nor could not answer to it because it was directly against the common Order of the Church that is meant the Romish Church And all the Bishops instanted the Lords that they would consent that all such as were born afore Matrimony should be Legitimated as well as they who were born within Matrimony as to the succession of Inheritance for so much as the Church accepteth such for Legitimate And all the Earls and Barons answer'd with one voice That they would not change the Laws of the Realm which hitherto have been used and approved Coke 2 part Inst 97. It is said Though the Bishops are Spiritual Persons yet in case of general Bastardy when the King writes to them to certifie who is lawful Heir to any Lands or other Inheritances they ought to certifie according to the Law and Custom of England and not according to the Roman Canons and Constitutions yet if they do make their Certificate according to the Canon Law No remedy against Bishops making Certificates contrary to the King's Laws General Bastardy uâ—urped by Bishops not given them by Law and not the Law of the Land there appears no Remedy unless such a one as is worse then the Disease Sir Galfred le Scrope Cheif Justice saith Before this Statute of Merton the Party pleaded not general Bastardy but that he was born out of Espousals and the Bishop ought to certifie whether he were born before Espousals or not and according to that Certificate to proceed to Judgment according to the Law of the Land And the Prelates answered That they could not nor would not to this Writ answer and therefore ever since special Bastardy viz. that the Defendant c. was born before Espousals hath been Try'd in the King's Courts and general Bastardy in the Bishops Court and herewith agree out old Books and the constant Opinion of the Judges ever since Coke 2 part Inst 99. It being before granted That the Law of England cannot be changed but by an Act of Parliament and Magna Charta being before made and being a Declaration of the ancient Common Law First That no Freeman was to be put out of his Free-hold or Inheritance but per legale Judicium parium and there being no cause of its own Nature more Temporal or more concerning Succession to Temporal Inheritance then Marriage It was contrary to Magna Charta and the Common Law to judg the Fact of it by any other Judges then Juries and the Law of it by any other Judges then those of Temporal Courts and though the Pope and Bishops in those Superstitious times forced the Kings many times as they did King John to yeild his Crown and the Subjects to yeild their Marriages and other Temporal Rights to their Arbitrary and Saleable Sentence for fear of Excommunication yet doth not this any way prove that the Jurisdiction of Marriage was ever granted them by any Law or Act of Parliament or could be without it were contrary to a known Common Law and Act of Parliament which expressly gave the trial of Temporal Rights and Inheritances to a Legale Judicium parium and not to any Ecclesiastical Judges or Laws Now therefore it being clear they had
Duaren lib. 1. Disp c. 1. Hermann vult lib. 1. discep c. 1. Goed ad l. 9. n. 1.6.7 ff de verb. sign 2. By the Law si vis vocationi fuat testamini igitur em capito appears that after the Defendant had a Copy of the Declaration deliver'd no Capias before Judgment was to issue against him without a Fugam fecit or at least an hiding himself and the word Testamini shews there must be Productio testium Probation by witnesses of the flight or absconding and not a Latitat granted on a meer false Suggestion and Lie or on the Forgery of an Outlawry to destroy that inestimable Right of Liberty from wrongful Imprisonment and more valuable than Life it self 3. By the Law si vindiciam falsam tulit rei si velit is Arbitros tres dato forum Arbitriis fructus duplione damnum deciditor appears That the Plaintiffs were Fined pro falso elamore double the value on a Writ of Enquiry of Damage to a Jury of Three which like Commissioners for examination of Witnesses being equally chosen by the Parties were more able and equal than a numerous Jury of Twelve all chosen by the Sheriff 4. This being granted that by the Ancient Roman and Athenian Laws Oblatio Libelli preceded vocatio in jus and vocatio in jus preceded Contumacy and Probation by Witnesses preceded Sentence of the same and that Plaintiffs were punish'd for false Suggestions it follows there was neither taking of Pledges Distress Attachment Satisdation Exaction of Bail or Arrest in their Original Process nor before Judgment except on Contumacy proved by Witnesses which shews that neither Romans nor Athenians were Authors of beginning Law-Suits with Execution 5. It appears by the Law Aeris confessi rebusque jure judicatis c. That the Pagan Execution it self after Judgment was more Just and Merciful than the Papal and Episcopal is now with us before Judgment for first they were so far from Arresting before Demand and before Judgment that they could not Arrest the Defendant on Hearing and Trial and Judgment pass'd against him without giving him Monition of the Judgment and till Thirty Days Justi dies to provide the Money were expired but now on a bare Bond before Judgment and before so much as a Demand made they cast into the Goal the Husbandman from his Plow the Tradesman from his Shop and the Merchant from the Exchange without giving the least notice Thirty or so much as Three Days to provide the Money whereby they and their Families their Reputation and Trade are oftentimes destroyed not only to the ruin of themselves but great damage of the Publick for the greatest bulk of Trade of the Nation being driven on Money borrowed on Interest if it be intended what is borrowed should be applied to Trade it is impossible that they can pay interest for it to the Creditor if they must keep it at their Chambers for the Creditors to call it in again on an hour's warning or as they now do without any warning at all and imploy it at their Trade they cannot unless they may have at least warning for so small a pittance of Time as Thirty Days which the very Heathen allowed their Debtors to be free from Arrest though Judgment was past against them This abominable Cruelty of beginning Suits with Execution came not therefore from the Heathen but from the pretended Christian Romish Bishops and Clerks All Attachments Distresses Exactions of Pledges Bail and Arrests before Judgment are Executions before Judgment and come from Romish Bishops against whom the Heathen shall rise in Judgment Now that beginning of Suits with Executing by exacting of Pledges before Oblatio Libelli Bail before Flight Judgment before Hearing Distress Attachment and Arrest before Judgment was brought into Great Britain by the Romish Bishops appears by these Reasons 1. Because the Register of Writs that old Romish Idol to which more innocent Causes and Persons have been Sacrificed and Destroyed according to the proportion of the Territory it Commands than to the Turkish Alcoran is in Latine which is the Romish Language in which Register all the Original Process of Summons Attachment and Distringas are composed for Exacting of Pledges and Bail Distress imposing Penalties and Forfeitures Arrest and Imprisonment in Personal Actions and Grand-capes and Petty-capes in real before Oath of Calumny Oblatio Libelli Hearing Probation or Judgment and in Indictments by Inquisition 2. Because all old Formalities of Entries and Pleadings of Instruments and Contracts Publick and Private were Originally in Latine which shews they were formed by Romish Bishops or their Clerks in their own Language conform to their Romish Idol the Register beginning with Execution as particularly appears in all Instruments concerning Feudal Jurisdiction are Clauses and Conventions of Distress Reentry Penalties and Forfeitures horrible unjust before Oath of Calumny Ohlatio Libelli dies justi Hearing Probation Judgment or Judg but the Lord himself in his own Case over his Vassal 3. Because anciently the Romish Bishops have been Chancellors in that Court which is Officina Brevium the Shop of Writs where they are forged and have been likewise chief Judges in the other Courts of the King keeping all their Proceedings in Latine Court-hand and Chancery-hand secret from the understanding of King and People whereby they exercised what Tyranny and Oppression they pleased 4. Because they and other Ecclesiastical Persons as Abbots Priors and the like have Possess'd the Third part of all the Baronies Honors and Mannors in the Land and had they not been stopt by the Statutes of Mortmain might by this time have got all this way therefore of taking Distress Penalties and Forfeitures before Judgment advanced their Interest in Tyranny and made them Arbitrary and absolute Judges in their own Case 5 Because anciently the Romish Bishops have been Outlawries and Excommunicato Capiendos and Judgment of Heresies the Romish Inquisition in Disguise and to the shame of Protestants still claim to be in their Ecclesiastical Courts Judges of Heresie whereby as the Common Law Judges by their Outlawries which are Temporal Excommunicato Capiendos they by their Excommunicato Capiendos which are Spiritual Outlawries have brought in the Romish Inquisition to begin all Suits with Execution before Judgment 6. Because the Greek Bishops first destroyed the Equal Law of the Twelve Tables Si in jus vocet aâ—que eat which is before interpreted Statim eat and made it in jus vocati statim eant aut satisdent which Satisdation included all the Rabble of Distresses Pledges Bail Mainprize Arrests and Imprisoments before Oblatio Libelli Hearing Probation or Judgment which Greek Bishops were the Instruments of that wicked Empress Theodora who foisted into the Laws of Justinian what they pleased concerning Judicial Proceeding touching Marriage Filiation and Succession and all other matters and the Romish Bishops followed them in their wickedness in whatsoever was for their gain and brought the same with themselves and the
any Delays by Jeofails Repleaders Arrests of Judgment or Writs of Error another cause was that both Parties and Advocates took the Oath of Calumny that they believed their Allegiance just and true Illud juretur quod lis sibi justa videtur which Oath keeps their Allegiances clean from falsity that I never found so much as one Fiction in all their judicial Proceedings and if the same Oath were but taken here as there I believe there would not one Bill in Chancery or Declaration at Common Law come in for Twenty which now are thrust in by heaps many other causes there are which lessen the labour of a Judg and of the Suitors which for Brevity I omit all which shew the Prudence of that Noble Kingdom where the People enjoy so great Justice with so little Cost and Contention Lastly we could have done more Business than we did had we been set to Act as the Roman Judges every one single without Associates in a Court by himself and how great an Addition to the Publick Treasury as well as advantage to Justice the lessening the number of Judges and turning Fees to Salary will cause is already mention'd A Satyr against the Cruel Preposteration of Ecclesiastical and Temporal Courts in Judicial Proceedings contrary to the Precept of Christ Matth. 18.15 AND will you never learn the skill Which first Subpoena is or Bill Or foremost know with all your wit If Declaration is or writ Or which precede should in your Tale The Capias or Original You which is best who make a pause To Sentence first or hear the Cause With Execution who begin Before a Judgment or a Sin Who grinde and eat the Poor distrest With Tongue and Teeth of Romish Beast For Grace in Anglice's who curse The Rent was bad the Patch is worse Who have no Summons but Surprize Who have no Laws but Treacheries Do you not know there is a Cry Gone up against your Cruelty The Prince himself of Righteousness So foul Oppressions to suppress Descended hath on Earthly Globe And glorious Dy'd his Scarlet Robe In his own blood to keep the Peace And from your Dungeons to release Twelve Trumpets hear 12 Apostles whose Silver sound Doth from the East to West rebound Proclaim'd the Sacred Edict have And Penalty whence none can save Which lest to you should be in vain Ye Adders deaf hear it again If Thee thy Brother or thy Friend Or Enemy hap to offend See thou to warn him do not grudg Twice at the least without a Judg And the last time see thou no less Shew him than thy two Witnesses Or three to make the Fact appear If he shall doubt to him more clear Nor shalt thou him for any thing Unto the Seat of Judgment bring Untill he Litis Contestate Or shew a Contumacious hate That if thou canst thou may'st him prove Thus first at home to win by Love Let every Plaintiff thus his Suit Begin or be for ever mute No form of Strife shall be but this Our express will and pleasure is The Nations Bow and struck with Awe Adore the Justice of the Law And to the dread Tribunal run High as the Clouds bright as the Sun With loud Appeals and further will Upon this Statute draw their Bill Both of Indictment and Complaint And of these Crimes you thus attaint That against this Divinest Act More Fees and greater to exact The furious Plaintiff false or true While hot you bind him to pursue The slow Defendant wrong or right You Bail or Goal to make him fight And Fines on Concords heavy lay To make them your unhappy prey The Debtor travailing to find The Creditor with honest mind Your Outlawries ambush the way And will not suffer him to pay But in your Tolls you take him there And bind him like a filly Dear Or what doth make him as forlorn To death you hunt him with the Horn To make his Skin and Carcass yours You cheat both him and Creditors And while his Plaint each sadly tells You take the Fish and leave the Shells Thus Innocents you lay in Chains Before they know who 't is complains Or what 't is for nor shall they see 't Till all Extortion's paid by Sheet You lay Imbargues and Prizes take Before the War proclaimed you make And Right by Battle try and Wounds Mortal before the Trumpet sounds Your Hell-hounds hunt without a noise Your Snake not rattles but destroys There 's nothing true and nothing Sworn Till Justice is to pieces torn And you who cite not but infest us With your Excessus Manifestus And us torment with great unfitness Dr. Cousins writes in defence of suppressing the names of Witnesses Accusers Excommunication ipso facto without Citation Because you will not name the Witness Your Ipso Facto's make us wonder At Thunderbolts without a Thunder And Bodies Judg in Hell to cast Before the Judgment day is past And deathless Souls make pale and wan Because you Curse before you Ban. No Plea deceives the Judg on high What will you do stand mute or flie All rather or who most repents Burn Popish Forms and Presidents Is it not better then to turn To Flames than you your selves to burn Some way with speed appease his Ire Your pain proclaimed is Hell and Fire Of Summons to answer before a Copy given of what is required to be answer'd This is in Scotland provided for by Act of Parliament and no man is troubled to appear before any Judg to answer before by their Libell'd Summons a Copy is deliver'd to the Person or affixed at the Door of his dwelling House containing all the matters at large to which his answer is required and though the People of England are not yet so happy as to enjoy so great a Privilege on which those invaluable Treasures of their Liberty and Propriety depend yet every Attorny and Clerk of a Court hath it and is free from giving appearance before a Judg or being Arrested till a Copy of the Declaration first deliver'd him and Judgment pass'd against him Attor Ac. 28. The reason why these Lay-Clerks who are Successors in Courts to the old Romish Spiritual Clerk Monopolize this from the whole People only to themselves is Filthy Lucre For first if the Plaintiff were compell'd as he ought to be to make Oblatio Libelli to the Defendant by giving or sending a Copy of his Bill in Chancery or of his Declaration at Common Law to the Defendant at his dwelling House and so likewise the Defendant bound to return his Answer Sealed up directed to be left for the Plaintiff in such Court having Jurisdiction of the Cause as the Plaintiff desired within Fifteen Days after the Service of the Copy at the dwelling House to be by the Officer of the Court deliver'd Sealed to the Attorney of the Plaintiff when he demands the same and the like done on Reply Duply Triply and Quadruply and all Exceptions of Fact or Law Postulations and Motions of
may be easie for the Priests to put Apples Grapes and Nuts in a Coffin and by Night to make fearful Noises Shrieks Groans and Counterfeit Apparitions about Graves and Tombs whence the horror of the very place and darkness make such impressions on timorous Fancies as they shall not dare to approach much less examine the matter and take out the new Body out of the Coffin and put in one had been Buried Seven Years and then a Vault made of purpose to make a noise under ground in the Church and Sofronio know nothing of all this 5. But whether it were Witchcraft or Cheat it is most horrible wickedness to make Use of either under pretence of Church-Discipline or the Worship of God seeing they both come from the Devil Alvarez a Portugal Priest Relates of himself That at the Town of Barva in Ethiopia there appeared a Terrible Cloud of an infinite number of Locusts which at length fell and Devoured the Countrey and that he and another Portuguez Priest took a Consecrated Stone and the Cross and sung the Letany and in this manner went in Procession through the Corn-Fields for the space of a Mile unto a little Hill and there he caused them to take a quantity of the Locusts and made of them a Conjuration which he carried with him in writing which he had made the Night before Requiring them Charging them and Excommunicating them Willing them within Three Hours space to begin to depart towards the Sea or towards the Land of Morez or towards the Desart Mountains and to let the Christians alone and if they obey'd him not he called and adjured the Fowls of the Air the Beasts of the Field and all the Tempests to scatter destroy and consume their Bodies And for this purpose he took the quantity of Locusts and made this Admonition to them that were present in the name of themselves and those which were absent and so let them go and gave them liberty The Locusts began forthwith to depart and in the mean while a mighty Tempest and Thunder arose toward the Sea which drowned all the Locusts in the River and the dead Locusts remained in heaps two Fathom high on the Banks so by the Morning there was not one Locust left alive This Excommunication if true were Conjuring and Witchcraft Flies Excomunicated Peter de Nathal in vita Bernhardi Relates That St. Bernhard denounced the Sentence of Excommunication against Flies Whether this may be call'd Witchcraft or a Silly Prank of St. Simplicius I cannot say but if he could Excommunicate Flies without a Magical Telesme or Inchantment Fishes Excommunicated he shall be the Domitian of Divinity Mere. Gallo lib. 6. p. 592. saith That Anno Domini 1593. The Bishop of Conagtion very malitiously Excommunicated the Innocent Fishes Theodosius a Bishop of Alexandria Dead Excommunicated Excommunicated Origen Two Hundred Years after his Death if he is censur'd only for a Cheat 't is less than so wicked a practice deserves Now though God may permit wicked men to Excommunicate and Daemons Witches wild Beasts and Tyrants to abuse the Bodies of the best men after they are dead they have no Power to touch the Soul And we ought not to fear but contemn their Excommunication for so saith Christ Matth. 10.28 Fear not them that can kill the Body but are not able to kill the Soul but rather fear Him which is able to destroy both Soul and Body in Hell Excommunication of the Devil Devils Excommunicated Mengus de Flagell Daemon Describes part of the Form of the Romish Exorcism to be I Command you Oh Davils who are come to the help of those that vex this Creature of God N. upon pain of Excommunication and Immersion into the Lake of Fire and Brimstone for a Thousand Years that ye yield no Aid and Assistance to these Devils It seems the Devil is of the Society of these Romish Priests otherwise he could not be Excommunicated To grant a Bishop Power of Excommunication is to grant him the Legislative Judicial and Executive Power Excommunication gives the Pope the Legislative Power over all Nations for by this he made his Canon-Law whensoever he pleased to be observed through Christendom by no other Obligation than his Command they should be observed on pain of Excommunication By granting the Power of Excommunication the Legislative Power is granted and the Clergy in Convocation used anciently without asking the Royal Assent to make Canons touching matters of Religion to bind not only themselves but all the Laity without Assent of the Lords and Commons in Parliament It was used in ancient time for Creditors besides other Security to procure Debtors to Swear they would pay them and thereupon there being then no Arrest in the Temporal Courts for Debt they Sued them in the Spiritual Courts on their Oaths and they granted an Excommunicato Capiendo to Arrest them without Bail which were so frequent that E. 1. could not keep his Servants free from Arrest in his Court till to prevent it he caused a Writ De Promulgantibus Sententiam Excommunicationis Capiendis Imprisonendis Commanding to Imprison such as Excommunicated any of them Rot. Parl. 25. E. 1. Intus Henry the Second according to Hovedon would That all such of the Clergy as were Deprehended in any Robbery Murder Felony Burning of Houses and the like should be Tried and Adjudged in the Temporal Courts as Lay-men were But Becket Arch-Bishop of Canterbury stood proudly on the Pontificial Prerogative of the Clergy That no Clergy-man ought to be Tried but in their own Spiritual Courts and by men of their own Coat And if they were Convicted before them they ought only to be deprived of their Office but if they after offended they should be Judged in the Kings Courts This Power of Judgment he drew to his own Court only by his Power of Excommunication A Copy of a Prohibition of Excommunication A true translated Copy of a Writ of Prohibition granted by the Lord Chief Justice and other the Judges of the Common-Pleas in Easter-Term 1676. against the Bishop of Chichester who had proceeded against and Excommunicated one Thomas Watersfield a Church-Warden for Refusing to take the Oath usually tendred to Persons in such Office to Present such who absent from Church by which Writ the Illegality of all such Oaths is Declared and the said Bishop Commanded to Release and take off his said Excommunication c. CHarles the Second by the Grace of God King of England Scotland France and Ireland Defender of the Faith c. To the Reverend Father in Christ Ralph by Divine Providence Lord Bishop of Chichester or any other competent Judg in his behalf whatsoever Greeting We are informed in our Court before our Justices at Westminster on the behalf of Thomas Watersfield That whereas by the Laws of this our Realm of England no Person ought to be Cited to appear in any Court Christian before any Judg Spiritual to
Children the same ought to be wholly and intirely performed to such Sons and Daughters in all Successions whether to a Testament or an Intestate And in short that they ought not to be made unlike other Children in Successions whom Nature hath made like Hence it appears that the Civil Law wills the Succession of Children shall be according to the Law of Nature and not according to any Canon Law or Law made by the Priest Natura duce errare nullo modo potest Tul. 1. de leg Cum vero parentibus rediti deinde Magistris traditi sumus tum ita variis imbuimur erroribus ut vanitati veritas opinioni confirmatae natura ipsa cedit 3. Tusc Where nature is our Guide it is impossible to err but when we fall into the hands of Parents and are delivered to Shool-Masters we are then infected with so many Errors that all truth gives place to vanity and Nature it self yields to opinion accustomed To fight against Nature is like Giants to fight against God Cato major Of the Final Causes of Marriage by the Law of God and Nature The Final causes of Marriage which is the Ordinance of God and not of Man are not to fill Priests pockets with money or to satisfie their insatiable Covetousness and Ambition to set their Foot on the Necks of Emperours and Kings in their Legitimations and Successions and thereby to dispose of the Kingdoms of Princes and the Liberty Propriety and Goods of the Subjects at their Arbitrary will and pleasure But the Final causes of Marriage by the Law of God and Nature are three 1. Procreation of Children 2. That Man might have an Help-meet for him there being many necessities especially in time of sickness wherein Man cannot be without the help of a Woman 3. To make his life more pleasant and delightful Tristis sine conjuge lectus As for the first part which is the greatest and chiefest end of Marriage namely procreation of Children without which the World cannot be continued To be the shorter I shall only mention one Poet as follows Providei ille maximus mundi-Parens Cùm tam rapaces cerneret fati minas Vt damna semper sobole repararet nova Excedat agedum rebus humanis Venus Quae supplet ac restituit exhaustum genus Orbis jacebit squalido turpis situ Vacuum sine ullis classibus stabit mare Alesque Coelo deerit silvis fera Solis Aer pervius ventis erit Sen. in Hippol. Fates cruel Threats when the great Parent saw Against his Creatures by as great a Law He then Inacted all those whom it slew Sould by new Births perpetually renew Should Venus lease and should not still restore With fresh Supplies Natures exhausted store On squalid Earth no Beauty would remain No gallant Fleets would dance upon the Main No Deer in Woods no Birds would be in Skie Winds only through sad Air would sighing flie There could be neither King nor Parliament nor People nor Governours nor Governed neither could the Protestant Religion defend it self against Pope or Turk without Marriage for though it be Apocrypha it is truly said Esdras 4.15 Women have born the King and all the People that bear rule by Sea or Land The End of the First Book THE CONTENTS Of the Second Book BY what Judg Marriage Filiation Aliment and Succession ought not and ought to be Judged Of the Five Competitors to be Judges of Marriage Filiation Aliment and Succession 1. The Bishop 2 The Magistrate 3. The Souldier 4 The Parents 5. The King and Parliament 137 Exceptions against Bishops being Judges in reference to the Legislative ib. Except 1. They assume to be Judges Jure Divino without a Sign of Mission from God which overthrows the Legislative Power of the King and Parliament ib. Of the Sign of Mission required by the Grand Seignior from Sabatai Sevi a counterfeit Jewish Messiah 139 2. They have falsely translated the Scripture in all words relating to Marriage 142 They have falsely translated Ish Isha Zona Kadesh Philiegesh 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Husband Wife Harlot Concubine c. 142 No such as word as Concubine in the whole Original Scripture ib. They have falsely translated the Seventh Commandment Lo Tinaph to be Adultery 145 They have falsely translated 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to be Fornication ib. They have falsely translated the Tenth Commandment in the words Wife Man-Servant Maid-Servant 146 They have falsely translated Mamzer in the Old and Nothus in the New Testament Bastard Wherein are noted the Errors of Coke Skene and Grotius in following Episcopal and other Popish translations ib. Of the absurdity of Common and Ecclesiastical Lawyers who make the Child born without the Ceremonies of a Priest and Temple no Sib Kin or of Blood to the Father who begot or the Mother who bare him 154 155 Further Reasons shewn that they have falsely translated Mamzer in the Old and Nothus in the New Testament Bastard 156 No such word or thing as Bastard in the whole Original Scripture or amongst the Hebrews Greeks or Romans 3. They have corrupted the Press both as to Scripture and Acts of Parliament and interdict Protestants to Print against or answer Papists 162 A Counterfeit Act of Parliament Printed by Bishops against Protestants and the true supprest 163 Mischiefs which follow the Interdiction of the Press to Protestants 164 165 4. By pretence of giving the King the name of Supremacy they have taken the thing to themselves 167 5. By pretence of giving the King Supremacy by the Ceremonies of the Coronation they take it from him to themselves 169 David Anointed and Crowned by his Parliament and not by the Priest 173 6. They assume in all matters concerning Marriage Filiation Aliment and Succession to be above Appeal to the Kings Courts 175 Of the abominable Judgement pass'd by the Common Law Judges in Kennes Case Coke lib. 7.42 whereby they gave away the Supremacy of the King's Courts to Bishops and made them in all causes Matrimonial subject to no Appeal ib. Exceptions against Bishops being Judges in reference to the Judicial Power 180 1. They are prohibited by the example of Christ to Judg Marriage Filiation Aliment or Succession ib. 2. They are totally ignorant of the Fact and were never Educated in the Laws by which they pretend to Judg Marriage 181 3. They Judg by a Chancellour and not in Person 4. They have Plurality of Offices and more than they are able to serve yet will be Judges of Marriage besides ib. 5. They are ambidextrous and amphibious Judges 182 6. They Judg Marriage by pretended Canons and Laws made by Bishops without assent of Parliament ib. 183 7. They take to themselves Fines and Penalties of their own Judgments 184 8. They Licence Dispence and Pardon all Crimes within their pretended Jurisdiction for Money 9. They cannot be known whether Protestants or Papists if Bishops 185 10. They Judg by Fictions and not by Truth 11. They Judg
Eliz Stowell quatenus de factor fuerunt ad invicem matrimonio ut predicitur copulat ' ab invicem Separand ' divorciand ' fore debere pronunciamus decernimus declaramus Eosque Separamus Divorciamus eisdemque Christopher ' Eliz. licentiam Libertatem ad alia vota convolanda concedimus tribuimus impertimur per hanc Sententiam nostram definitivam sive hoc finale nostrum decretum quam sive quod ferimus promulgamus in hiis Scriptis c. And after the Divorce the said Christopher Kenne Espous'd and took to Wife Elizabeth Beckwith And after Anno 5th Eliz. before certain Commissioners Ecclesiastical the said Elizabeth Beckwith Libelled against the said Christopher Kenne That before the Marriage between them contracted he had Married with Elizabeth Stowell on which process was awarded against Elizabeth Stowell pro interesse And upon due examination of the Cause it was Sentenced That the Marriage between the said Christopher Kenne and Elizabeth Beckwith was lawful and Sentenced them ad Exequenda Conjugalta obsequia c. And that the said Christopher Kenne was never lawfully Espoused unto the said Elizabeth Stowell and after the said Elizabeth Beckwith died after whose death the said Christopher took to Wife the said Florence by whom he had Issue one Daughter and called Elizabeth and died And Anno 36th Eliz. it was found by Office in the County of Sommerset by Force of a Mandamus after the death of the said Christopher Kenne that the said Elizabeth Kenne was his Daughter and Heir who was within Age Viz. of the Age of Ten Months The Queen granted her Wardship to Sir Nicholas Stallenge and the said Florence then his Wife on which the said Martha alledged her self to be Daughter and Heir to the said Christopher Kenne and with her Husband Silvester Williams Exhibited their Bill in the Court of Wards against the said Sir Nicholas and Florence alledging That the said Martha was Daughter and Heir of the Body of the said Elizabeth Stowell his lawful Wife and that they the said Christopher and Elizabeth Stowell at the time of their Marriage in Anno 37. H. 8. were both of them above the Age of Consent and that they Cohabited together Nine or Ten Years before the said supposed Divorce during which Cohabitation the said Martha was procreate between them and therefore pray they may have License to Traverse the said Office To which Bill the said Nicholas and Florence put in their answer and the Plaintiff examined divers Witnesses and before Publication Sir Nicholas dies and thereupon the said Silvester and Martha exhibited a Bill of Reviver against the said Florence and after Martha having Issue Elizabeth the Wife of the now Pl. died after whose death the said Thomas Robertson and Elizabeth his Wife bring a new Bill of Reviver to revive the first Sute in which the Witnesses were examined and this Case was refer'd to Fleming and Coke Chief Justices and Tanfeild Chief Baron and Selverton and Williams Justices and Sing and Altham Barons of the Exchequer If it be asked for what reason was such a Sentence given my Lord Coke nor the rest will neither tie the Bishop nor themselves to shew any for he saith The lawfulness of Marriage belonging originally to be tried in the Ecclesiastical Court if the Ecclesiastical Judg that is the Bishop Sentence a Marriage Null We that is the Judges of the King's Courts ought to give Faith that is implicit Faith to their Sentence as they do to our Judgment whether true or false right or wrong reason or no reason and so he saith Where the original cause of Sute concerning Marriage belongs to the Common Law Courts the Ecclesiastical Judg is to give like Faith to them as 22. E. 4. in Corbets Case which was this Sir Robert Corbet had by Elizabeth his Wife two Sons Robert the Elder and Roger the Younger and dies Robert the Elder being under the Age of Fourteen takes to Wife one Matilda and they dwell together tâ—ll full Age Et habuerunt carnalem copulam cogniti reputati pro viro uxore palam And after the said Robert put off the said Matilda having no Issue by her and Married one Lettice in the life of the said Matilda and hath Issue by her Robert and dies Lettice Preached openly that she was the lawful Wife of Robert and her Son a mulier Roger the Son of Sir Robert Corbet sues in the Spiritual Court to Reverse these Espousals between Robert his Brother and Lettice for which Lettice sues a Prohibition In which Case it was Resolved 1. That if Robert and Matilda had had Issue and had been unjustly Divorced and after Robert had Married Lettice and had Issue and died that as long as the unjust Divorce had continued the Issue of Matilda could have had no remedy at Common Law the same gives so great Faith to the Sentence of the Bishop 2. That here Roger might sue at Common Law notwithstanding the second Marriage in regard the same was void being made while the first Wife lived On which may be noted the injustice of the Bishops being above Appeal in Judgment in these particulars 1. Here is a lawful Matirmony Consummate by the Birth of a Child and two Persons thereby indissolubly joined together by the Act and Law of God put asunder by the Bishop and his Papal Law Here is a Dispute from Generation to Generation concerning the Validity of a Marriage and Succession to an Inheritance Against the Marriage is alledged That the same was declared void by a Sentence of Divorce or rather of Nullity given by the Bishop Against it is answered by Elizabeth a Descendent of the said Marriage and the right Heir to the Inheritance that the cause of the said Sentence was false And she offer'd to prove that the said Christopher Kenne and Elizabeth Stowell were both above the Age of Consent to Marriage in Anno 37. H. 8. and were then lawfully Married and Cohabited together Nine or Ten Years and the said Martha was lawfully Procreate between them before the pretended Divorce was made Was there ever Probation more Relevant tender'd was there ever better Reason alledged by a poor Lady to defend her Inheritance On this Hoskins Bacon Dodridge and other Council Argued so long from Term to Term as was enough to spend a good Portion before it was got But alas to no purpose for had this Elizabeth been Queen Elizabeth her self these Judges will give no Relief or Hearing against a Bishops Sentence unless his Lordship will please to Revoke it himself And notwithstanding all Arguments to the contrary it was accordingly resolved by all the Justices and Barons That she must go without her Inheritance and her Mother Martha remain a Bastard till the Bishop who made her so should again unmake her which was in plain English to adjudg there should be no Appeal in any case of Marriage Filiation Aliment or Succession from the Bishops to
a Publick Treasury might be more equally divided by way of Salary according to the proportion of Skill and Pains The English Judges therefore sent intō Scotland put the foremention'd Statute of Westm 1. cap. 25. to experiment there and turned all Fees into a Publick Treasury to manage which we allowed our Treasurer out of the same Two Hundred Pound per Annum and allowed Salaries to our selves as the State appointed us and to all our Clerks and Officers necessary proportionable to Skill and Pains which Treasury of Fees not only satisfied all the English and Scottish Judges and all the Officers of Justice without any charge or trouble to the State but likewise many Military Officers of the Army and we found by experiment that far more exact Justice was done by Salary than ever any was done by Fees And if the same were practiced here in England it cannot be but the like effect must follow as to Justice but vastly greater as to the increase of the Publick Treasury especially if the number of Judges were reduced to Three who as is after shewn are sufficient to dispatch all matters of Judicature Civil Ecclesiastical and Criminal of the Kingdom Exceptions against Bishops being Judges in reference to the Executive Power They begin the Suit with Execution No Writer of the Forms of Judicial Proceeding except the Bishop was ever so Absurd as to Tolerate much less to Ordain any Law-Suit to be begun with Execution and this is that which makes the Spanish and Romish Inquisitions Romish Inquisition begins with Execution on the Person and the Barbarous Inquisition by Torture of the Civil Law to be so Abhor'd and Abominable that they begin with Execution upon the Person and Arrest him before Judgment Now that not only Arrest before Judgment but Districtio Pignorum or taking of Pledges by distress is likewise Execution appears clearly both by Civil and Common Law As to the first which is Districtio Pignorum or taking Pledges by Distress it is express in the Civil Law C. de Execut. rei Jud. that on a Sentence for Debt or Damage the Judg may order Execution to be done by Distress or taking the Goods moveable of the Defendant as Pledges and if he satisfie not the Plaintiff within the space of Two Months after the Distress is made then the Officer was to sell them and satisfie the Plaintiff As to the Common Law it appears 4. H. 6.17 22. Ass pl. 72. That the Execution after Judgment is in the County Court only by Distress Distress on the Goods is Execution and keeping the same in Pound 'till Judgment be satisfied for they cannot sell the Distress which shews that the Common Law esteemed Distress an Execution after Judgment though it had not the Power to sell the Distress as the Civil Law had That it is an Execution therefore after Judgment both by Civil and Common Law is clear It will be next by some perhaps enquired from whom the Original of this most Anti-Christian Custom came of beginning Suits with Distress and Attachments which differ from Distress in that the one forfeits the Distress 9. H. 7.9 for Nonappearance the other not Capiasses Latitats exaction of Bail Mainprize Outlawries in Civil Actions and Excommunicato Capiendo's in all which the Goods of the Defendant being of greater value than the Debt or Trespass are either seized or detained or what is worse Forfeited and Confiscated or the Person Arrested Imprisoned and sometimes Starved sometimes Poison'd and sometimes Tortured before there is a Copy given him of any Complaint made against him and before the Plaintiff hath so much as taken an Oath of Calumny that he believes his Complaint True and Just and before Hearing Probation of Witnesses and Judgment That this most inhuman and more than Barbarous Proceeding came not from the old Romans though Pagans appears by what Alciat says that not so much as the word Districtus or Districtio which is to be intended before Judgment is to be found amongst any of the Ancient Lawyers and likewise that no such thing as Distress or taking Pledges or exacting Bail caution judicio Sisti Judicatum Solvi or Arrest before Judgment is to be found amongst those which are left of the Laws of the Twelve Tables Yet in them these are express'd after Judgment as appears by the Reliques of the same which follow in these words L. 25. Si in jus vocet atque eat L. 28. Si vis vocationi fuat testamini igitur em capito L. 31. Si vindiciam falsam tulit rei si velit is arbitros tres dato forum Arbitriis fructus duplione Damna Deciditor L. 33. Aeris confessi rebusque jure judicatis triginta dies justi Sunto postidea muus endoiectio esto in jus ducito nei Judicatum facit aut quips endo jure em vindicit secum ducito vincito aut nervo aut compedibus quin Decim pondo ne minore aut si volet majore vincito Si volet suo vivito in suo vivit qui em vinctum habebit libras farris endo dies dato si volet plus dato Wherein though many words are so Antiquated and obscure as no Interpreter can expound them yet so much may be understood from them 1. That their Editio and Oblatio Libelli by giving the Defendant a Coppy of the Libel Bill of Complaint or Declaration preceded their vocatio in Jus Citation and Summons for in the Law Si in jus vocet atque eat the word Atque signifieth Statim presently in which sense it is taken in Leg. filia 20. C. de inof Testam and in Virgil. Atque illum prono rapit alveus amni Now it had been to no purpose when the Defendant had been called to appear before the Judg in Person Statim presently to answer unless the Plaintiff before he had call'd him had made him Oblatio Libelli and given him a Copy of his Bill of Complaint against him and allowed him his dies justi a fit time for him to deliberate and provide for the same Vt veniat paratus ad respondendum Oblatio Libelli precedes Summons when he shall be again called to appear in Person before the Judg and without this if the Judg caused him to appear and cast him into Prison as now Judges do on lying Latitats and false Suggestions all the Poor of the Land who are not able to give Bail and on Forged Outlawries both Poor and Rich without Bail and forced him to answer to Copies of Declarations not deliver'd 'till he had been first cast into close Prison an Hundred Miles from his home where he had neither Meat nor Drink nor Money nor Friends nor Council nor Writings nor Witnesses he had made it impossible for such a Prisoner in Dures to answer otherwise than to grant whatsoever the false Suggesting Plaintiff will Demand of him And that the Obligatio Libelli preceded in jus vocatio agrees Cujac Lib. 10. Obs 10. 11.
Lives by Fictions I hope such Popish Fictions will no longer be suffer'd in Protestant Courts of Justice Coke saith From the taking away of Oaths for the truth of the cause of Essoin by the Statute of Marlebridge cap. 12. there arose after Fourcher per Essoin by several Tenants alternis vicibus and making false Essoins ultra mare all endeavour'd to be taken away by Westm 1. cap. 43. 44. but when a mischief comes by making an ill Law or Statute it is never cleanly cured by after Statutes of Explanation or Limitation without clean repealing again the Statute which causeth the mischief additions of new Patches to old Garments making the Rent but worse Fictions in Essoins The mischief of Fictions of Husband and Wife to be but one Person have been sufficiently shewn P. 66 67. Fictions de Plus petitionibus In the Common-Law Declarations the next Fictions for want of the Oath of Calumny are de Plus Petitionibus Conrad 405. saith Olim triplum condemnabantur qui majorem Summam in libello assignaverant quam reus debebat but in more ancient times I find they forfeited only the Tenth part which with an Oath of Calumny might be now sufficient to restrain the lawless laying of Debt and Damage in their Declarations an Hundred times more than it is which is very mischievous and dangerous to Defendants when Plaintiffs pack and bribe Juries and they happen to misplead make defaults or have other Casualties fallen on them whereby they cannot attend their Suits Dr. Cowell says The Civilians are in no danger de Plus Petitionibus by reason of certain Cautelous Clauses they ordinarily have at the end of every Position or Article of their Libel or Declaration to this effect Et ponit conjunctim divisim de quolibet detali tanta quantitate vel summa qualis quanta per Confessionem partis adversae vel per probationes Legitimas in fine litis apparebit and again in the conclusion of all Non astringens se ad singula probanda sed petens ut quatenus probaverit in praemissis aut eorune aliquo eatenus obtineat But Civilians and Canonists make their Laws like Juglers-knots to tie with one finger and untie with the other they make a great noise of their Oath of Calumny and de Plm Petitionibus and by these secret Clauses in their Libels make it all again to no purpose All the Common Law Writs of Questus est nobis are now grown Fictions and Declarations Licet saepius Requisitus are likewise Fictions whereby men are surprized by Arrests before any Demand made the Inde producit sectam in the end of the Plaintiffs Declaration is now turned a Fiction which was heretofore a legal proof of Witness produced to prove his Declaration for the better Caution against the false Calumnies of Plaintiffs the former Taking of Pledges of the Plaintiff is now turned to a Fiction of Plegii de prosequendo John Doe and Richard Roe the Counter-pledges exacted of the Defendant are now turned to a Fiction John Den and Richard Fen. Courts of Justice compel to Fictions and Falsities It doth not satisfie Courts of Justice to tolerate Fictions and Falsity but they compel to them as the Defendant shall be compell'd to give colour a meer insensible Fiction and Lie he shall be compell'd at Common Law to answer Negatively or Affirmatively as if he were Omniscient and shall not be permitted to say Dubito or Ignoro though Juries of greater number may all say Ignoramus he shall be compell'd to a Plus petitio to avoid a Variance between his Obligation and his Declaration as Bro. Confess 37. If a man Sue an Obligation for Ten Pounds and the Defendant confesseth all except Forty Shillings whereof he sheweth an Acquittance the Plaintiff prays Judgment and says nothing of his Acquittance for if he confess it his Writ should have abated Fictions of Acts made the first day of the Session If an Act of Parliament come before them to judg when it was made they will judg it by Fiction to be made the first day of the Session 33. H. 6.17 the Case was this In the Exchequer-Chamber Fortescue Rehearsed how the Parliament last past made a special Act against John Pilkington Esq for the Rape of a Woman out of N. c. and Rehearsed the effect of the Act and how by the same Process was granted to be made to the Sheriff of E to make certain proclamations in a Ville that the said John ought to appear before the Lords at W. at a certain day c. to answer to the Trespass contained in the said Act c. and if he would not that then he should be attaint of the Trespass and pay a certain Sum to the Party c. and that the Proclamations were accordingly made and returned into Chancery and the said John made no Appearance c. and after the said John was taken and in the Kings-Bench committed to the Marshals-Ward for certain Causes on which a Transcript of the Act and a Mittimus was sent out of the Chancery directed to us c. whereupon the Marshal was charged with him for the same Condemnation contained in the Act and the said Prisoner comes now and alledges by his Councel That the Act of Parliament is not sufficient and therefore prays to be discharged c. for the Bill being directed to the Commons pass'd them well and was endorsed in this Form Let it be delivered to the Lords but whereas the Bill was That the said John should render himself before the Feast of Pentecost next ensuing the Lords endorsed the Bill in this Form The Lords grant that in case he appear not before the Feast of Pentecost which shall be Anno Domini 1452. c. to wit at Pentecost next after the Feast contained in the Bill And therefore the Lords granted a longer day then was granted by the Commons in which Case the Commons ought to have had the Bill deliver'd back again to them and they to have assented to the Grant of the Lords which was not done and therefore such Act of Parliament is void Fortescue It seems we ought to intend no otherwise but that the Act is good for the King hath written to us by his Writ and hath certified unto us That the Bill is confirmed by Authority of Parliament Illingworth Chief Baron This cannot here be intended as you say for the Writ which is made only by a Clerk of the Chancery cannot make an Act of Parliament good if it be vicious in it self c. And afterwards he sent for Kirkby keeper of the Rolls and for Faukes Clerk of the Parliament Fortescue Rehearsed the matter to them both on which Kirkby Sir The course of the Parliament is this c. But if any Bill is particular or other Bill which is first deliver'd to the Commons and pass'd they use to endorse the Bill in this Form Let it be
Courts and only takes in the Rich. 1. Because of the remoteness of sending for Writs the same being the greatest part sent for Hundreds of Miles 2. They are limited to so many short Returns only to multiply unnecessary Fees for Aliases and Pluries that they are extreamly troublesome and costly to the Poor 3. The Forms of them are so ticklish that when got they are easily abated and overthrown for the miss of a word a syllable and often a dash to an half word not made more clericorum and often for false Latine A Writ abates likewise for any default of Form varying from the Register Omission variance in order of words from the order used in Chancery the following matters are likewise good exceptions to abate Writs rasure interlining false Latine yet they never write true Omission of the words Vi Armis or of the words Contra pacem Outlawry Misnaming a Twice naming of the Person Misnaming of the Village or Hamlet Misnaming of Barockshare for Barkshire Misnaming of the Village Misnaming of the Person so variance between the Writ and the Declaration or Count in the least toy is a sufficient Exception to overthrow both Writ Declaration and Count Hastings Hasting as 9. E. 4.42 43. Det by Edward Hastings and Counts that he by the name of Edward Hasting recovered Land in Ancient Demesne and One Thousand Pounds Damages and brings his Action for the Damages by Three Justices against Five the Writ ought to abate 28. Ass 52. A Record removed and a Variance between the Record and the Mittimus and the Certiorari for one was H. Green Just Green and de Green Molineux Moliney and the Writ was Henry de Green the omission of the word De stopt the proceeding of the Justices Trespass the Writ was Molineux the Protection Moliney and therefore disallowed for the Variance 7. H. 6.22 Nuper omitted Trespass against J. N. nuper de D. in the Protection Nuper was omitted therefore Variance 19. H. 48. Audita querela upon an Indenture which was Langa White the Writ was Lang Whaite which put the Party to great Cost to get it to be amended 21. H. 6.7 7. Port. said an Outlawry was reversed for the Variance between Dockwra and Dockawre 21. H. 6.7 Dockwra Dockawre I. In the Obligation the Defendant was named J. M. de M. in the Writ M. was left out and therefore abated 38. E. 3.24 In Mayhem the Writ was Contra pacem Nuper Regis and the Count Contra pacem nunc Regis therefore it abated 8. H. 4.21 2. E. 4.25 Amendment 21. A Dispute is whether Wagam and Vagam are a material Variance Wagam Vagam Count less than the Writ A Judgment given in a Writ of Annuity was reversed because the Writ was That Twenty-six Marks Six Shillings Eight Pence was Arrear of the Yearly Rent of four Marks and in the Count Six Shillings Eight Pence omitted which is a Variance 9. E. 4.51 54. Here the Poor man was punish'd for his Conscience because he desired less in his Count than his Attorney had put into his Writ and it is said there that is not Misprision of the Clerk to be amendable because the Count is made by the Party and not by the Clerk A world of other Abatements of Writs there are too many to trouble at this time the Reader with both as to Variances between the Writ and Count and between the Writ and another Writ between the Writ and Specialty between the Writ and Testament between the Writ Count and Specialty between the Writ and Warrant of Attorney c. And the more Writs are abated and Causes thereby overthrown the more Money the Courts and Clerks get to send out new but the more miserably are the Poor by them oppress'd and it were more merciful in short to deny them Hearing than to cause them to hazard and lose all that little they have and at last not to be Heard This mischief of Writs was first invented by the College of Priests at Rome and were called Formulae Juris which is little Forms or diminutives of Forms the little Forms were those we call Writs the greater Forms whereof the lesser pretended to be as the Contents of the Chapters were what They called Libels and We Bills and Declarations These Formulae though set up by the Priests for their Gain were contrary to the Law of the Twelve Tribes in regard Oblatio Libelli being by that Law to precede Vocatio in jus as before is shewn these Writs or Formulae were useless and the Forms of Libels were sufficient to direct the People themselves Original Writs abolished by Justinian and better than the other which were so rigorous in their punctilios of Formalities Vt cadente Syllaba caderet Causa these Forms therefore of Original Writs of the Priests were totally abolished by Justinian lib. 2. tit 58. De Formulis impetrationibus Actionum Sublatis Juris Formulae aucupatione syllabarum insidiantes cunctorum Actibus radicitus amputentur Dat. X. Calend. Feb. Constantio III. Constante II. A A. COSS. Let Forms of Actions insidiating by hawking at Syllables in all mens Suits be cut up by the Roots Baldus Notes on the place Quia supervacuae Formulae sunt sublatae non oportet Actiones à Pontificibus impetrare sed sufficit eas apertè proponere and very well against this insidiation of Writs in Words and Syllables agrees the expression of Isa 29.21 They make a man an offender for a word and lay a snare for him that reproveth in the gate and turn aside the Just for a thing of nought The like to this of Justinian was done by that famous King James the Fifth the great Justitiar of Scotland where they had formerly their Writs as we have till they were sick of them and able to bear them no longer which was remedied by an Act of Parliament Jac. 5 p. 6. cap. 75. The words of which Act follow ordering a Copy of the Libel to the Person or dwelling House The Ordour of Summounding all Persons in Civil Actions Copy of a Bill or Declaration served in stead of a Writ ITem For eschewing of great Inconvenientes and Fraude done to our Soveraine Lordis Lieges by Summounding of them at theire dwelling places and oft times falslie and gettis never knawledge thereof It is Statute and Ordained That in times cumming quhair ony Officiar or Schireffe in that parte passes at Commande of the Kingis Letters or the Schireffes Stewardes Baronnes or Baillies Precept to Summound ony Partie if they cannot apprehend them Personallie they sall passe to the Ȝett or Dure of the principall dwelling place quhair the Person to be Summonde dwellis and hes their actual Residence for the time and there sall desire to have entresse quhilk gif it be granted they sall first schaw the cause of theire cumming and gif they cannot get the Party Personally they sall schaw their Letters or Precept before
Free-born Subject Arbitrarily at their pleasure is contrary to the Acts of Parliament both of Magna Charta and the Petition of Right so late in memory which abolish all Imprisonment both of Nobles and Commons without the lawful Judgment of their Peers so likewise is it contrary to all other Fundamental Laws of the Land made for defence of the liberty of the People which is more necessary and more dear than Life as may appear by the Reasons following 1. There is an Act of Parliament made 15. H. 6. cap. 4. That none shall Sue a Subpoena until he find Surety to satisfie the Defendant his Damages if he do not verifie and prove his Bill to be true this Statute had nipt in the Bud the Overflow of all those innumerable Fictions and Falsities which have since followed in the Suggestions of Bills in Chancery for this being made 15. H. 6. there is no mention made in all the Year-Books of any quarrel between the Common-Law-Judges and a Subpoena till 37. H. 6. which is above Twenty Years after so great a Fright had this Act falling from the Supreme Power put amongst the Froggs though now despised as a dead Logg as likewise are all the rest and it is in vain to make more unless the Honour of these is vindicated by the same Authority that made them for Chancellors as if Jura negant sibi nata they were two-great to be bound by Acts of Parliament though they have not the least pretence to colour their Authority against these Three the greatest Acts for Security of the Subjects against false Imprisonments that ever were made in England for there is no Prescription or Custom of any Court can be alledged against an Act of Parliament be it never so old and there is no Pretence to alledg any against the Petition of Right Chancellour hath no Authority to impose a Fine being in so fresh memory and no longer since than 3. Car. 1. they have trampled under soot the Authority of these Supreme Acts and all lawful Judgments on them 1. To lay Fines on the Subject thus Trin. 3. Jac. did Chancellour Egerton impose a Fine on Sir Thomas Themilthorp for not performing his Decree concerning Land of Inheritance and Estreated the same into the Exchequer and upon Process against him the Party appearing pleaded that the Chancellour had no Authority to impose a Fine the Attorney General Petiit advisamentum Curiae concerning the Authority of the Chancellour and on mature advice It was adjudged That he had no Power to Fine in the Case Coke 4th part 84. 2. To Extend according to which pretended Power the said Chancellour Decreed against Waller certain Lands and for not obeying the Decree imposed a Fine and upon Process out of the Court of Chancery extended the Lands that Waller had in Middlesex whereupon Waller brought his Assise in the Court of Common-Pleas where the Opinion of the whole Court agreed in omnibus with the Court of the Exchequer ib. 3. Not only to proceed to Imprison the Subjects on false Suggestions without taking any Surety of the Complainant according to the Statute to verifie his Bill but without so much as taking his Oath of Calumny to his Bill and have further presumed so high as by their Edicts and Orders of Chancery which they have not the least Authority to make to order the Subjects to be Attached and Imprison'd on every Affidavit of any Knight of the Post and no Probation to be admitted to the contrary and if while the Innocent Party is imprison'd being remote from his Home and suffering great Loss and Damage by this his false Imprisonment he shall at length offer to prove the Affidavit false and Knight of the Post perjur'd he shall be discharged but without any Cost for the great Service the Knight of the Post did the Court to Forswear himself against the Prisoner whereby they get some Fees See here a Chancellour in desiance of Three Acts of Parliament without any Sureties without any Oath of Calumny without any Judgment of Peers publisheth in sight of the Sun his abominable Orders to cast into Prison the most Innocent Person on the false Affidavit of every Perjur'd Knight of the Post yea a single Affidavit as appears by the Orders of the Chancellour and Master of the Rolls Printed 1669. Page 67. and yet they pretend Page 65. under the Title of Commitment that they are tender of the Liberty of mens Persons and of their Imprisonments on Affidavits and confess they are often Malitious and made by one mean and ignorant Person yet in the same breath Page 67. as if they soon forgot or understood not what they said in the beginning of their Order they the next leaf conclude That a single Affidavit of such a malitious mean and ignorant Person yea though he is proved afterwards to be Perjured shall be sufficient to Imprison the Innocent Subject and when he again gets out of Gaol if he can let the Innocent Party be indamaged his whole Estate he shall not have a Farthing Cost for the false Imprisonment and observe the depth of the Reason why given by a Chancellour and as the Printed Orders say with advice and assistance of the Master of the Bolls 't is this as appears Page 68. at the top of the leaf viz. IN RESPECT OF THE OATH MADE AGAINST HIM AS AFORESAID that is to say the Oath though false of a Villain Perjured against the Innocent Person for so is the implication of the Order and likewise though they durst not say so in express terms yet so is the implicit Non Obstante notwithstanding any Law of God or Man or Acts of Parliament to the contrary Doth not here a Chancellour assume the Omnipotent Power of the Pope to dispense with the Laws of God and Men and assume a Power of Imprisoning the Subjects above the King and Parliament yea contrary and in contempt of their Laws he doth for the Law of God and Precept of Christ is known to prohibit the Imprisonment of any No Imprisonment ought to be but where the Witnesses and Party are brought Face to Face without two Witnesses at least and without bringing the Witnesses and the Party accused face to face that he may know them and except against their Persons or Testimony if he hath cause which is never done on an Affidavit And the Laws of the Land Magna Charta and Petition of Right utterly prohibit all Imprisonment of the Subject on Affidavits whether they are true or false without bringing the Witnesses and the Party face to face and a Judgment on such Testimony against him by his Peers and if such Evil Precedents be suffer'd to pass without some example of Justice shewn on them all Acts of Parliament which ever have been or shall be for protection of the Liberty of the Subject Forgery Licensed in Chancery thereby to Imprison the Subject falsely will be vain and to no purpose 4. The Chancellour
in the said Chancery-Orders Printed 1669. presumes to do in the Court of Conscience what was never heard of to be done in the Courts of Turks Infidels or the most Barbarous Judicatories in the World for he is not ashamed publickly to give License to Cursitors and their Clerks to commit Crimen Falsi which we call Forgery by Antedating Writs taking them out of Returns past or of a former Term by reason of which Forgery of Writs and Forgery of Returns Antedated Capiases Proclamations Exigends and Outlawries Antedated have been likewise Forged and Thousands of Poor men unjustly cast in Goals and miserably undone without any Summons or Hearing and these are likewise the damnable effects of the Chancellours Writs by which as by others the Plaintiffs so here the Defendants are destroyed without Hearing and certainly these Crimes of Antedating and Forgery of Judicial Acts though here Licensed by Orders of Chancellors and Protected by Courts by not Licensing Averments against them are by the Civil Law and Laws of Scotland and of many other Nations both of these and Instruments Death and even by our own the imbeselling of a Record by a Clerk and Counterfeiting of Fines is Felony and if the second time so is the Forgery of Deeds Writings and Court-Rolls and deservedly the Offender better deserving death than a Robber on a High-way and why any Crimes of this Nature should be publickly Licensed to the Ruin of all Truth and Justice by any Chancellour in his Chancery Orders is very strange the mischievous effects of which said Attachments on Affidavit and Antedating Writs and Forgery of Outlawries are notoriously known and not complained of here without good Cause and Testimony and some particular experience of my own to my loss who have as well as others suffer'd in an high degree by the false Affidavit of a Fellow who Subscribed and Swore it by a false name and not his own and likewise procured a Forged Outlawry antedated against me It belongs not to a Chancellour to be a Judg of Equity in England 5. It belongs not to the Chancellours Office to be a Judg of Equity or to make Orders Edicts Laws or Writs and thereby to Imprison the Persons and dispose of the Lands and Goods of the Subjects Arbitrarily and at his Pleasure Coke 4. part 82. saith That all Statutes which give Authority to the Chancellour to determin Offences in Chancery are to be intended only in the Ordinary Court there which proceeds in Latine and is Secundum Legem c. and not in any Extraordinary Court which proceeds in English Secundum Aequum bonum and 37. H. 6.14 27. H. 8.18 it is Resolved That the Court of Chancery Proceeding by English Bill is no Court of Record and therefore it cannot bind either the State of the Subjects Lands or the Property of his Goods or Chattels and therefore they there admit he may Imprison the Person Chancellour cannot bind the Subject's Goods not Persons which is not only a Non sequitur but a contrary conclusion follows on it for if he cannot bind the Subjects Goods à Fortiori he cannot bind his Person For the Life is more than Meat and the Body is more than Raiment Luke 12.23 And though those Common Law Judge of H. 6. and H. 8. so sordidly deliver'd the Subject Prisoner to the Chancellour so as they might keep his Lands and Goods to themselves yet had they no more Law or Right to do it than they had to deliver him Prisoner to the Turks or to send him to the Barbado's for the Subject is no Slave neither ought he to be given or sold for one without his own Assent by his Representative in Parliament and having so good a Protection against the Chancellours and Common Law Judges and the Orders and Writs of both as Magna Charta and the Petition of Right both for his Lands Goods and Person they ought to shew some greater Laws than their Writs and Orders of Courts or Forgeries of Clerks before they presume to invade either 6. There being no Law in England which ever Ordained a Chancellour to be a Judg of Equity or to make Edicts or Orders concerning the same he can pretend no Title thereto unless from the Laws of France and to that effect Polydor Virgil saith The Chancery came in with the Conquest to which though my Lord Coke saith Perperam Erravit because the Mirror saith The Constitutions of the ancient Kings were that every one should have out of the Chancery of the King a Writ Remedial for his Flaint without difficulty yet he himself seems to be in the Error and not Polydore for though the name of Chancellour and Chancery was before the Conquest and divers other Countries use the name of Chancellour as well as England yet the greatest part of the Writs came from Normandy and are mention'd in their Customary as who will peruse it shall find but as to the Writ of Subpoena Centum librarum and Arbitrary Power of the Chancellour and to be a Judg of Equity came first from the Conquest and was never used before nor did it belong to the Chancellour's Office either of England or Scotland that having other employment and more than a Chancellour could do though he never troubled himself with Judgment but left the same to the Judges to whom the King Delegated the cause by Writ and this the very name of Chancellour testifieth who was Originally no other than a Master of Requests to the Prince whom he served and on Petitions deliver'd to him by the Subjects if unfit to be Granted he strook cross lines over them like Cancelli or Lettices by which he Cancell'd them and thence had his name of the Canceller or Chancellour as Turn lib. 11. advers c. 25. and not according to that Fictitious Verse of his Power Hic est qui Leges Regni Cancellat iniquas For when was ever any Chancellour in England allowed to Cancel any Roll or Act of Parliament And when these Petitions for Justice were deliver'd by the People to this Master of Requests call'd the Canceller of such of them as were Evil such as were Just he Cancelld not but on behalf of the Petitioner Granted the Princes Rescript or Warrant to the Praeses Provinciae where the cause of Action arose or the Defendant lived for Actor Sequitur Forum Rei which Rescript or Warrant we now call a Writ containing in it self 1. A Questus est nobis a short recital of the Complaint 2. Si A. fecerit te securum a taking Security or Pledges of the Plaintiff de Prosequendo 3. A Summoneas or Summons of the Defendant to appear before the Prince himself or such Judges as he Delegated though out of the Province or County where he lived which was the Reason of taking Pledges of the Plaintiff because he made the Defendant appear many times Hundreds of Miles from his Home when he might in those days implead him before the President
Parliament Besides there is not de facto that name given for the Ecclesiastical Court is kept in the Bishop's name and not in the King's name And the Bishop takes all the profits and not the King Fain he would mend the matter and says That a Leet is kept in the Lord's name and he hath the profits yet it is the King's Court. It might better been said it was once the King 's before he gave it or sold it to the Lord of the Leet as are many Lands not being Ancient Crown-Lands The King purchases but if he sell again such Lands for valuable considerations the propriety as well as the name of such Lands is then in the buyer and not in the King Therefore though he hath set out his Book as baptized both in Latin and English by the name of de jure Regis Ecclesiastico and of the King 's Ecclesiastical Laws yet with due Reverence to the opinion of so great a Father of the Law it may be said there appears none either to baptize or confirm the name nor any God-father to it but himself Neither will the Title of the King 's Temporal Laws set upon Magna Charta which gives that liberty to every Subject of Tryal of his Birth-right per legale judicium parium be consistent with the Title of the King 's Ecclesiastical Laws which take it away and give it to a Trial by Certificate of the Bishop Object 6 It is again by Coke alledged and Precedents cited That Edward the Confessor William the First Henry the First Henry the Third Edward the First Edward the Second and all English Kings have Govern'd and Ruled both the Kingdom and the Holy Church and have given Jurisdiction to Abbots Priors and Bishops and have granted prohibitions when they transcended the bounds of their Jurisdictions and that Reges sacro oleo uncti sunt spiritualis Jurisdictionis capaces but still this is nihil ad rhombum nor pertinent to make good the Name or Title he hath set his Book of the King 's Ecclesiastical Laws For there is a great difference if he had Entitled it de jurisdictione Regis Ecclesiastica for the King's Jurisdiction and the King's Laws are clean divers things And there is a great difference where he grants Jurisdiction to Ecclesiastical Persons and where he grants them by what Laws they shall exercise that Jurisdiction for the King 's of England have Anciently granted Jurisdiction and Commissions to Ecclesiastical persons as Bishops and Priests to be Judges in the King's-Bench Chancery and other Courts yet could they not grant them power to judge by any other Laws than the Laws of England except by Act of Parliament Then as to granting prohibitions where the King had not or could not by Law grant them Jurisdiction proves nothing that any King did or could by Law grant them Jurisdiction of general Bastardy without Act of Parliament or that there was any Law or Act of Parliament which gave them Jurisdiction of general Bastardy because the King's Courts durst not grant prohibitions for general Bastardy For in those superstitious times neither the King nor Judges dar'd provoke their Excommunication and therefore at the making of the Statute of Merton when the contest was between the Ecclesiastical and Secular Power which of them should give the Law to Marriage The Temporal Judges for fear of their Excommunication took only like the Jackal what the Lion refused and left them which they called special Bastardy So quod non capit Christus capit fiscus which is intended of the false Christ for the true Christ took nothing from it but paid tribute to it Besides if many Jurisdictions should judge by other Laws this would be destructive both to the King and Subject Though the King therefore give the Sword he cannot change the Ballance as is in effect confess'd by Coke himself 3 pt Inst fol. 120. in his Exposition of the Statute 27 E. 3. of Praemunire where he saith The right of King and Subjects not triable per alias Leges or aliud Examen then the laws of the Land If Freehold and Inheritance Goods or Chatâ—les Debts or Duties wherein the King and Subjects have a right or property should be judged per aliam legem which he mention'd before to be Civil or Canon Law And other Trial which he makes to be any Trial except by Jury or be drawn ad aliud examen These three mischiefs endeavour'd to be prevented in the said Statute would necessarily follow viz. Disherison of the King and his Crown the Disherison of all his People and the undoing of the Common Law And fol. 121. he farther saith Some have made a question whether since the Ecclesiastical Jurisdiction was acknowleged in the Crown an Ecclesiastical Judge holding Plea of a Temporal Matter belonging to the Common Law doth incur the danger of a Praemunire Though hereof is no question at all yet lest any Man might be led into an Error in a Case so dangerous we will clear this point by Reason Precedent and Authority The Reason holdeth still to draw the Matter ad aliud examen c. And he citeth before several Precedents and says The reason of all these Cases is because it drawes matters Triable at Common Law ad aliud examen and to be discussed per aliam legem Peter du Moulin that famous Protestant Divine writes That there was a a Book printed in the former Age entitle The Canons of the Apostles Anti-Christian whereby the Temporal power of the Pope is wholly taken away And the sixth Canon expresly forbids a Bishop to meddle in Civil affairs And in the 84th Canon are these words A Bishop that meddles in War or seeks to obtain these two things that is to say the Empire of Rome and the Sacerdotal Government let him be deposed for the things of Caesar are to be given to Caesar and the things of God to God And that one Arnold who Preached this Doctrine That the Pope had no Jurisdiction nor any thing to do with the Temporal affairs with great applause was in the year 1155 made a Martyr and most cruelly burnt at Rome by the order of Pope Adrian And this agrees with the Testimony of Christ himself Bishops Judg. not only as to Jurisdiction of Marriage and Legitimation but all other matters wherein Temporal propriety comes in question that he refused the Jurisdiction of it as appears Luk. 12.13 And one of the company said unto him Master speak unto my Brother that he divide the inheritance with me And he said unto him Man who made me a Judge or Divider over you It appears therefore the Episcopal Jurisdiction of judging or dividing Temporal goods in the Spiritual or Ecclesiastical Courts came not from Christ but was usurped by Anti-Christ by force of Fire and Faggot and is from him derived to Bishops and Ecclesiastical Courts to the destruction of the rights of Princes and the liberty and propriety of the people
who ought only to stand to Caesar's Judgment Seat and to be tried per legale judicium parium for the same According to this principle Henry the first Pope Paschal seeking to incroach on the liberty of the Kingdom writes unto him in this manner Netum habeat sanctitas vestra quod me vivente auxiliante deo dignitates usus Regni nostri Angliae non imminuentur si ego quod absit in tanta me dejectione ponerem Optimates mei totus Angliae populus id nullo modo paterentur Let your Holiness know that by God's help while I live the Dignities and Customs of our Kingdom of England shall not be diminished and though I which God forbid should suffer my self to fall into so dejected a condition my Nobles and whole People of England will never suffer it Object 7 It is further objected in behalf of Trial of marriage by Ecclesiastical Laws that by the Statute of 25 H. 8. c. 19. which gives power to the King to appoint 32 persons to examin the Canons and to continue such as they think fit and abridge the rest It is provided That such Canons Constitutions Ordinances and Synodical Provincials being already made which be not contrariant or repugnant to the Laws Statutes and Customs of this Realm nor to the damage or hurt of the King's Prerogative Royal shall now still be used and executed as they were before the making of this Act till such time as they be viewed searched or otherwise order'd and determined by the said 32 persons or the most part of them which Statute is revived 1 Eliz. 1. To which is answer'd That 1. what is contrariant or repugnant to the Law of God is made void without this proviso and the assuming the Jurisdiction of marriage and dividing Inheritances insuing thereby is before proved to be Anti-Christian for Spiritual persons who alledge themselves Successors of Christ and much more therefore the assuming the Legislative power or giving Laws or Canons for the same 2. It is shewen likewise before that the same power of Legislation and Jurisdiction concerning marriage was usurped by Fire and Faggot and Excommunication and therefore their Canons concerning marriage are not intended or if they were yet this proviso cannot Lawfully preserve such usurpations so contrary to the Law of God 3. It is manifest that all Ecclesiastical Jurisdiction and Laws and Canons of marriage are contrariant and repugnant to the Laws Statutes and Customs of this Realm as First the Canons then made were That marriage should be a Sacrament and thereby draw to it self Ecclesiastical Jurisdiction which latter Acts of Parliament establishing the Protestant Religion doth thereby abolish the being of marriage a Sacrament and consequently the Jurisdiction Ecclesiastical incident to it as a Sacrament and the Canons which make it so or give any Ecclesiastical Jurisdiction relating to the same 4. All Ecclesiastical Canons of marriage are contrariant and repugnant to Magna Charta and draw the Subject from his liberty propriety and Birth-right ad alias leges aliud examen and aliud judicium then legale judicium parium which Magna Charta of liberties to the Subject hath been confirmed by several Kings succeeding above thirty times Object 8 It is objected Admit there is no Act of Parliament gives Ecclesiastical Courts Jurisdiction of Marriage yet the unwritten Law of Use and Custom which is the Common Law of England and so long toleration gives it To which may be answer'd That by the Canon Laws Malus usus abolendus besides there was never any use of Jurisdiction of marriage in the Ecclesiastical Courts otherwise then in reference to the same as being a Sacrament which being now taken away cessante causa ratione legis cessat lex So likewise where the thing which a Use or Custom concerns is but changed the Use and Custom vanisheth as if by custom a Rate Tith be paid for two Fulling Mills in one House and one of them is changed to a Corn Mill the custom is gone But besides this being malus usus is of it self void and were it never so long used can never grow to have the obligation of the Common Law or to be thereby the Common Law As was well answered by a young Gentleman when complaint was made in Parliament against the wrongful incroachments of the Ecclesiasticks and they alledged for themselves That they had used and accustomed time out of mind to practise what was excepted against He reply'd So have Thieves at Shooter's Hill used time out of mind to Rob there yet the Law allows no such prescription nor doth the forced Toleration of their wickedness by such people as were not able to resist their Robberies oblige Successors to follow their precedents Reasons against Ecclesiastical Laws concerning Marriage 1. Ecclesiastical Laws of Marriage came from the Devils c. The first Reason against Ecclesiastical Laws is in regard of the wicked Authors for all the Laws by which Bishops judge Marriage Filiation Aliment and Succession were invented by Daemons Pagan Gods and Goddesses Magicians Aruspices Astrologers South-sayers Priests of Priapus and Venus Jupiter Juno Cybele Flora Diana common Prostitutes Popish Saints Popish Councils Popes or Papists The Canon prohibiting and nulling all Marriage without a Priest in a Temple except by the Pope's good License or Dispensation was made by the Pope and the Council of Trent as appears Ego Concil 147. pt 5. Concil 197. pt 6. as a main Pillar to support their tottering Kingdom against the growing strength of the then Lutheran Protestants All marriage Preists instituted in the Mysteries of Priapus and they took their pious precedents from the old Pagan Priests of Priapus and Venus and they had it from their Damons or Devils That all the ancient Pagan Priests were first initiated in the Mysteries of Priapus before they could be capable to execute the Priests office cannot be denied and is testified by divers Authors and particularly by Cornelius Agrippa de van Sci. p. 738. in these words Sordidissimus Priapus pro Deo habitus hunc coluerunt primi illi Religionum artifices Chaldaei Aegyptii Assyrii Babylonii Arâ—bes Scythae Aethiopes ac perinde tota Africa Asia Europa nec fas erat ullum sacerdotem fieri qui Priapi sacris non erat initiatus Hic est ille Belphegor idolum omnium antiquissimum quod Chamos dictum est à Chamo filio Noe. The filthy Priapus was estemed a God and was worshiped by those first founders of Religion the Chaldeans Egyptians Assyrians Babylonians Arabians Scythians Phoenicians Ethiopians and even all Africa Asia and Europe neither was it lawful for any to be a Priest unless he were first initiated in the Rites of Priapus This is that Belphegor of all other Idols the most ancient which is likewise called Chamos of Cham the Son of Noah Now this was the Law of these Priests for the wicked ends which are after mentioned Dispensation with Incest came