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
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
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
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
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
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