would not cause the poor Man to be paid for his shoulder of Mutton without all that ado but I after understood that were not the Forms mixt with so many such absurdities there would be little work for them at the Bar. Of the Law of Transubstantiation of the Children of the Wife into the Children of the Husband if he is within the four Seas at the time of their begetting and no probation admitted to the contrary And of Intails on Marriages Husband within the four Seas no probation admitted that the Children were not his Fiction and Falsity allowed against Truth That no probation is admitted to the contrary appears 18. E. 4.30 where Littleton says That if a Man marries a Woman great with Child by another Man whether he knows it or not knows it and within three days after she is delivered of the Child this Child is legitimate and the true Son of the Man that married her And this by a Fiction in Law and with this agrees Coke Com. 244. So here is a Father made not by god but by the Father of lies and a false Child made Legitimate and the true Child of a Father who never begot him and the true Child if he begot any before he was married without a Priest and Temple made illegitimate and a false yea no Child to him who begot him and all this held very good and sound Divinity If marriage of the great bellied Woman be in facie Ecclesiae a brazen facies Ecclesiae it must be where the Devil gives God the Fiction the truth the lie And Coke and Littleton hold it too for good Law I wonder whose Law they mean and so stiff they are in it that Coke Com. 244. saith No proof shall be admitted to the contrary so here 't is not stabitur praesumptione donec probetur in contrarium but it is the sin of Presumption from which the two Fathers of the Law do not pray as the Patriarch David did Psal 19.13 Keep thy Servant also from presumptuous Sins let them not have Dominion over me then shall I be upright and I shall be innocent from the great transgression One of them at least defends the sin of Presumption so high that he saith 'T is presumption Juris de jure non admittitur probatio in contrarium and in fictione juris semper est equitas a meer repugnancy and contradiction which never came from the Law of God nor is consistent with it as appears Psal 96.13 For he cometh to judg the Earth he shall Judg the World with righteousness and the People with his truth And not with fictions and much less with lies so punctually forbidden James 3.14 Lie not against the truth and so severely threatned Revel 21.8 All liars shall have their part in the Lake which burneth with Fire and Brimstone And Revel 19.20 The false Prophet is to be cast in amongst them who though he seems to be the greatest lier in the World yet in none greater then in this his lie of Legitimation against which must be admitted no proof to the contrary The Law of Legitimation is further That if a Woman Elope or run from her Husband with an Adulterer and live in Adultery with him and have a Child by the Adulterer if her Husband be within the four Seas when 't was begot this Child shall be Legitimate and shall be adjudged the Husband's Child and no probation shall be admitted to the contrary as appears 43. E. 3.19.7 H. 4 9.44 E. 3.10 1. H. 6.7.19 H. 6.17 Coke Com. 244. A further descant on the words of Littleton and Coke concerning the transubstantiation of Children of Parents within the four Seas And of the Law of Intails When a Common Lawyer hath for his Fees in a Deed of Jointure very formally settled Lands Messuages Houses Tenements and Hereditaments c. To have and to hold the said Messuages Houses Lands Tenements and Hereditaments with their and every their Appurtenances unto the said A. B. and C. D. and to the Heirs of their two Bodies lawfully begotten and the Priest on Banes or Licence as formally per verba de praesenti contracted the said A. B. and C. D. which he calls Marriage You shall next hear what Heirs the Priest and Lawyer confederated to do their Faeminine Client a good turn by their Fictions whereat they are both good one will expound by the Gospel and the other interpret by the Law to be lawfully begotten of the Body of this Woman aforesaid First Littleton 18. E. Fol. 30. hath said If a Man marry a Woman great with Child by another Man and within three days after she is delivered of the Child this Child he saith is a Mulier that is to say Legitimate that is to say lawfully begotten of the Body of the said Woman by the said Man that married her Yet he saith In putting the case he was begot by another man and makes a very great Fiction in the premises and contradiction in the conclusion of his Case but let it be what it will Coke Com. 244. seconds him and thinks Littleton hath spoken over conscionably or wasts time to allow three days for cannot a Woman of full and lawful Age though she sup a Virgin if she lie with the Law by her side that Night as well have a Child next Day by dinner as if she stayed three whole days he therefore takes off two of the unnnecessary days and says plainly reserving to the Case of Littleton on the Margent That if the Issue is born a Month or a Day after Marriage between Parties of full lawful Age the Child is Legitimate that is as aforesaid lawfully begot And the reason he gives is Quia filiatio non potest probari from which Premises he makes three Conclusions First Ergo probatio non admittitur in contrarium Secondly Ergo if a Man marry a Woman got with Child by another Man and he is born but one day after the Marriage this Child is lawfully begot by the married Man Thirdly Ergo if a man is on or within the four Seas that is within the Jurisdiction of the King of England and a Child in his absence is begot by another Man on the Body of his Mirmaid he left at home this was lawfully begot by the Man on the four Seas Let any Logician if he dare deny the Sequel for here are two Aristostles for the Law but he hath but one for his Logick And there is a greater Aristotle too for the Gospel the Bishop himself to second my Lord Coke Bishop's Certificate Form hath given his Certificate in his Book of Entries Fol. 181. And the foresaid Bishop by his Letters Patents and Close hath certified to the Justices here That he by virtue of the foresaid Writ to him directed Convocating before him such as of right are to be Convocated hath diligently enquired and certified the truth of the matter that in the Chappel of B. in the County of G. in the
marriage yet could not they avoid being spotted by slanderous Tongues to be like the Heathen Gods lovers of Women whereas fame it self dared not belye these Heroick Ladies who defended their Honour with their Blood But to draw to an end of this Section There appear amongst the nations many good many indifferent and many most wicked Laws and Customs concerning Marriage the height of the Examples and the Authority both in good and bad being only humane The same can be neither obligatory nor satisfactory to the Conscience neither ought marriage to be judged by them Divorce by mutual assent It was by the Twelve Tables allowed That by Mutual consent the parties might Divorce themselves one from another Quia unumquodque dissolvitur eodem modo quo conflâ—tum est as may be collected from Cicero Philip. 2 l. pern ad leg Jul. de Adult li. 2. 7. de divorcio ex Apul. Ambros Epist 65. Notwithstanding which there was no Divorce followed in Rome for the space of 520 years There have been examples of the practice of this amongst Christians and Christ's words prohibiting putting away which implies force seems not to include a free or voluntary separation Of examples of this amongst Christians an express form appears in Marculfus his Formula lib. 2. cap. 30. Dum inter illum illam non charitas regnat sed discordia placuit c Seeing between him and her the Charity according to God doth not reign but Discord so that they cannot live peacably together it is agreed by the consent of both that they separate from one another and accordingly they have done as others Leg. Rom. cap. 19. and Novel Instit 117. These Canons have been made to change and likewise other Imperial Laws Divorce free for Women a well as Men. Of Women departing from their Husbands 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is the word for it on the Woman's part Sen. de Benef. l. 3. c. 16. Numquid jam ulla repudio erubescit And Nobiles foeminae non consulum numeroâ—sed maritorum annos suos computant They departed and married again every year Apud Romanos Graecos mulier quam vir alteri potest dicere ut res suas sibi habeat quin nomina rei illius propria jure Attico prodita erant ut si vir discederet ab uxore hoc diceretur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 si mulier à viro 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Jos Scà liger Amongst the Romans and Greeks both the Woman and the Man might Divorce one another And by the Athenian Law they had proper Terms for both as if the Man left his Wife this was called a Dismission Dismission and Desertion if the Woman left her Husband this was called a Desertion So by the case put by Christ of a Woman it appears then that Women were Divorced as well as Men. The East Indians if they are but Jealous of their Wives will kill them and bring three or four witnesses to Swear That strange Men entred into their Houses by night or at unaccustomed times who had their pleasure of their Wives or in another sort as they will devise it whereby the Husband is streight discharged of the Crime of killing his Wife by the Laws both of Portugal and Spain and there are every year many Women without number dispatched by their Husbands and none think it strange nor make wonder at it because of the Custom and the Women are never the more frighted from their Adulteries but will say They can die no better death then by such a Law Linschot And may presently marry another Wife The Wives likewise frequently poison their Husbands which as some say was the original of their custom not to survive their dead Husbands but to burn them And the causes of Jealâ—uâ—e can by neither be published to the Magistrate with safety or hâ—nour either of Wife or Husband Were it not therefore far better for the Innocent party or both by assent to separate themselves privately and marry again then so live in danger of their lives one of another and more agreeable to the Law of God and Nature and the ends of marriage then for them if the Wife offends the Husband to have power to kill her while alive or if not offend to kill her by burning with him after dead or the Woman be tempted to prevent both by poisoning her Husband were it not better to be put away privately as Joseph did his Wife then the fault publish'd and Divorces would not be so frequent if left free to the parties for who would marry again a Man or Woman who had Divorced themselves from their first marriage without cause Augustus Caesar following the vicious policy of those times to strengthen himself by marriage of Women repudiates his Wife Scribonia the same day she was deliver'd of Julia and married Livia being great with Child by Tiberius Nero her Husband still living who was deliver'd of Drusus three Months after Dio. Tiberius by assent of Augustus repudiateth the Daughter of Agrippa being then with Child and marrieth Julia the Daughter of Augustus Dioclesian the Emperour married six Wives in a short space and repudiated them all great with Child Oros And having associated to him because of many Travels in the Empire Maximianus they both meet at Milan to create new Caesars to whom they may commit their Forces where they chose Constantius Chlorus and make him Governour of Britain and Galerius whom they make Caesar likewise to defend Eastern Europe These new Caesars they compel to repudiate their former Wives and Galerius married Valeria Daughter to Dioclesian And Constantius repudiated his Wife Helena by whom he had Costantine after call'd the Great and married Theodora Daughter-in-law to Maximian by whom he had after six Children Dioclesian assumeth Divine Honour and he and Maximian triumph yet they after resign the Empire and retire themselves to Galerius and Constantius after Constantius createth his Son Constantine Caesar and dyeth Against him was set up Maxentius Son to Maximian and Maximian giveth his Daughter Fausta to Constantine Herod Antipas repudiateth his Wife Areta who was Daughter to the King of Arabia and married Herodias Wife to his Brother Philip and Daughter to his Brother Aristobulus Joseph Anno Christi 1028. Constantine the Emperor being sick the States put Romanus Argyrus to his choice either to repudiate his Wife and marry the Emperor's Daughter or to lose his Eyes his Wife to save him from danger entereth into a Nunnery Romanus Argyrus is made Emperor and marrieth Zoe the Emperor's Daughter and banisheth Theodora her Sister Zon. Zoe falleth in love with Michael Brother to one of the cheif Eunuchs they strangle Romanus in a Bath he marrieth Zoe and was much troubled with the Dropsie and Falling-sickness Michael neglecteth the Emperess and refraineth her Bed shaveth her and banisheth her The people inforce him to recal her and put out his Eyes Cedr Zoe marrieth Constantius Monomachus who keepeth a Concubine
worse then a Beast CHAP. III. Marriage Filiation and Succession not to be judged by the Law-Civil Canon or Feudall AS to the Author of the Civil Law or rather the Emperor in whose name and time the same was compiled he was Justinian whom though his own Parasites extoll'd for a God and his Lawyer Tribonian imployed by him or his Wife Theodora to do the work claws him with a doleful Compliment that he was in great fear least he should be rapt up into the Heavens when he little thought of it for his singular Piety to their insufferable loss Yet Procopius makes him a Devil and doubts very much whether he were not a Devil incarnate more likely when he little thought of it to be rapt to Hell Bodin indeed speaks something Fol. 17. may clear him from being a Daemon for he saith He was a blockish unlearned Prince and out-witted by his Wife Theodora when she pleased and caused by her to make Laws only for the advantage of the Women against the Men and Procopius likewise commends his Justice and saith That he used when he could catch them to take Bribes of sides and if any who had a Sute before him presented him with a Bribe he was sure to carry his Cause unless the other Party counterballanced him with another As to the Collection of Laws attributed to him it cannot be denied but there are a multitude of excellent Laws of Nature scatter'd through the great Mass of them but in such a confusion as is rather proper to a Chaos then an orderly Digest Then for the bulk 't is an Hundred times bigger then necessary and the Evil Laws which increase it to that greatness in number overwhelm and in Nature destroy or make useless the Good As to the Religion in them it is Popery and Superstition The Justice is Tyrannical and Arbitrary Government the Mercy of them is Racks and all inhuman Tortures Civil Law The Heads of the Civil Law prohibiting to marry are comprehended in the Verses following 1. 2. 3. 4. 5. Aetas Conditio Numerus Mona Et Ordo 6. 7. 8. 9. 10. Optio Nobilitas Sanguis Tutela Potestas 11. 12. 13.  14. Fons Sacer Affinitas Raptus Repugnat Honestas Irrita quae faciunt Connubia legibus haec sunt 1. The first cause making marriage void or voidable is Age if the Man is under 14 or the Woman under 12. 2. Condition If it be servile they were not allowed to marry Ceremonially but might lie with one another and get new Slaves 3. Number If a Man have one Wife he ought not to have another 4. If either Person be Monastick as a Monk or Nun. 5. Being within Orders as a Priest or Clerk 6. Adoption prohibits mariage between the Adopting and Adopted 7. Nobility heretofore prohibited marriage with a Plebeian and Senators and their Children per Legem Papiam Juliam with their freed Women or others of so mean Condition A wicked Law and contrary to the Law of God for they might lie with Plebeians but not marry them 8. Consanguinity in respect of which three sorts of Persons are consider'd the Ascendents Descendents and Collaterals 9. A Guardian is prohibited to marry his Pupil 10. A President of a Province is prohibited to marry one subjected to him by reason of his Jurisdiction in which two last cases the reason is that marriage might be free and not compell'd by the Awe or Power of Authority 11. Fons Sacer the Font of Baptism is by the Pope made to contract a spiritual affinity or kindred between the God-fathers and God-mothers and Child Baptized for whom or their Children to marry within the fourth degree is made without any sence as Incestuous as if within the degrees of Carnal kindred 12. Affinity in which are the same Considerations of Prohibition to marry as before in Affinity 13. Rape for by the Civil Law the Ravished was prohibited to marry the Ravishor 14. Such Matters as are thought against Honesty or are of ill report according to the Manners of the People Canon Law As to the Canon Law Aquinas Cajetan and others recite the Verses following which have left out some of these Matters relating to the Civil Law and added difference in Religion and other Matters withal to the Modern Canons in the manner following Error Conditio Votum Cognitio Crimen Cultus Disparitas Vis Ordo Ligamen Honestas Si sis affinis si forte coire nequibis Haec sociandà vetant Connubia facta retractant Which likewise may be easily understood by Exposition before made of the former But they are likewise many of them wicked and contrarg to the Law of God The Civil Law is a Cento of Rescripts of Emperors a frippery of Opinions of Doctors Planting the Sword for the Ballance Superstition for Religion Tyranny for Government Antinomies for Laws Torture for Judgment Gain for Godliness Iniquity for Justice Confusion for Method Fiction for Truth Form for Matter Manner for Merit Ceremony for Substance a Powder of Impertinents a Remedy worse than the Disease a Whirl-pool of Vertigoes a Rock for Shipwracks a Gulf to swallow Money a Sea driven with contrary winds a Bottomless Deep of Doubts a Chaos of Controversies an Abyss of Darkness a Bulk broken with it's own weight Canon Law Anno 1520. The Pope and Papists Excommunicating Luther he appealeth to a Council and burneth the Canon Law and the Popes Bull at Wittenberg Calvin tit Cynus writes of him thus Cynus jurisconsultus Pistorii natus Dyni Maxellani auditor Bononiae jus civile professus est librosque de eo non paucos ita scripsit ut semper à Pontificiis canonibus abhorret In interpretatione l. quoties C. de Jud. scribit Canonicum jurisconsultum secisse sibi jura pro libitu voluntatis suae leges civiles servare eas ad commodum suum non autem contra se propter ambitum secularis jurisdictionis usurpandae non propter aliud Cynus a Professor of the Civil Law at Bononia and one wrote many Books concerning the same yet did always very much abhor the Papal Canons and writes in interpretation l. quoties C. de Jud. that the Canonists made all their Laws according to their own Arbitrary will and observed the Civil Law only for their profit and not when it made against them out of Ambition to usurp Temporal Jurisdiction to themselves and to no other end The Canon Law is deservedly likewise censured by the Lord Bishop of Lincoln in his late learned Book against Popery fol. 35. where having recited many wicked positions in it he concludes in these words Thus much and may be too much for the Canon Law that sink of Forgeries Impiety and Disloyalty for I scarce know any Book wherein are more forged writings under good name sometimes for bad purposes and more impious Doctrines and Positions own'd and authoriz'd for Law and that by one who pretends though without and against reason to be Christ's Vicar and
Infallible or any Book which hath more Seditious and Rebellious principles of Disloyalty This I only say now but when I have what I now want time and opportunity I can and will 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 make it good how dangerous and when believed and practised how pernitious to Kings and Princes the principles of that Law are I hope all Bishops will hereafter be of the same mind and not own the Canon Law to be the Rule of Marriages and Legitimations or Successions of Protestant Kings and Princes or their Subjects or for their Pardons and Excommunications or fit to be any longer the Ecclesiastical Law for the Government in any thing of Three Protestant Kingdoms As to the Feudal Law I shall defer it till I come to speak of the wicked obligations of some Tenures Feudal Law to prostitute the Virginities of their Daughters to the Lords of the Land It is enough for to shew the slavery of Feudal Laws if we but remember the late Wardships of Tenures wherein the marriages of Men and Women were bought and sold as if Beasts in the Market and the unjust Laws yet remaining in customary Estates prohibiting Widows to marry and marrying young Women to old decrepit Men not fit for marriage to get a Widow's Estate whereby they are left exposed to infinite Temptations The wicked custom of Marchâ—ta Mulieris belongs to the Feudal Law Marchâ—ta mulieris dicitur Virginalis pudicitiae prima violatio delibatio quae ab Eveno Rege sibi capitalibus dominis fuit impie permissa de omnibus novis nuptis prima nuptiarum nocte sed pie à Malcolmo 3 sublata fuit in capite sequente certo vaccarum numero quasi pretio redimitur Sken Reg. Ma. lib. cap. 31. 1. It is to wit that conform to the Law of Scotland the Marchet of ane Woman noble or Servant or Hireling is ane Zoung Kow or three shillings And the right duty to the Sergeant three pennys 2. And she be Dochter of an Frie-man and not of the Lord of the Village her Marchet shall be one Kow or six shillings and for the Sergeants duty sax pennys 3. Item The Marchet of ane Thane or Ochiern twa Rye or Twelve shillings and the duty to the Sergeant Twelve pennys 4. Item The Marchet of the Daughter of an Earl pertains to the Queen and is twelve Rye The Spaniards in the West Indies setting a Tribute to the King and the inferior Lords to be paid yearly by every married person To encrease these yearly Tributes from married persons they every year survey by List the married persons of every Town and cause their Children Sons and Daughters to be brought before them to see if they be fit to be married and if of growth fit they threaten the Parents for not marrying them and raise his Tribute by way of Fine till he marry them And the set time they appoint for marriage to the Indians is 14 to the Man and 13 to the Woman yea some they compel to marry scarce 12 or 13 years of Age if they appear of more forward strength yea it is a shame to see how young they are inforced to it pag. 155. So between the King of Spain and the Pope the poor Indians pay dear for marriage which God left free The Civil Law is said to be Jus Leoninum The Canon Law Jus Vulpinum The Feudal Law Jus Asmarium in regard of the intollerable oppression and servitude in it I conclude therefore Marriage Filiation and Succession not fit to be judged by any of these three Laws CHAP. IV. Marriage Matrimony Legitimtaion or Succession not to be judged by the Law of Mahomet YOU will not offend God in speaking a word in secret to Women that you research in marriage although you conceal in your minds your design to espouse them he understandeth whatever you think of them Alch. cap. 2. pag. 23. Of Persons with whom Marriage is forbidden Marry not the Wives of your Fathers what is past was Incest abomination and a wicked way your Mothers are forbidden you your Daughters Aunts Nieces Nurses and your foster Sisters The Mothers of your Wives the Daughters that your Wives have had by other Husbands The Daughters of Women that you shall have known are also forbidden you if you have not known them it will be no sin The Wives of your Sons are likewise prohibited and two Sisters for what is past God is Gracious and Merciful Married Wives are likewise forbidden except the Women-slaves that you shall have acquired God hath so commanded you Except what is above forbidden it is lawful for you to marry at your pleasure Of the Time of approaching Wives When your Wives shall be clean approach them according to what God hath commanded He loveth them that repent of their Error and are clean and purified Your Wives are your Tillage go to your Tillage at your pleasure And do good to your Souls you shall one day find it fear God and preach his Commandments to true Believers Alchor cap. 2. pag. 21. Of forbearing to touch Wives God will be Gracious and Merciful to such as shall swear not to touch their Wives the space of four Months if he return to them he is Gracious and Merciful but if they desire to repudiate them he understandeth and knoweth all things Women Divorced shall tarry until their Terms be past four times it is not permitted them to conceal what God hath created in their Wombs if they believe in his Divine Majesty and the day of Judgment Alchor cap. 2. p. 22. Of the propriety of the Wife in her Goods distinct from the Husband Oh ye that believe in God it is not lawful for you to inherit what is your Wives by force Take not violently away from them what you have given them unless they be surprized in manifest Adultery see them with civility if you have an aversion from them it may chance that you have a thing wherein God hath placed much Good But if you desire to repudiate your Wives to take others and that you have given them any thing take not any thing that appertaineth to them Will you take their wealth with a lye and a manifest sin how shall you take it since you have approached each other with a promise to use each other civilly Alchor cap. 4. pag. 49. Of giving Suck by the Mother and Aliment to her and her Child and Aliment by the Heir to his Parents The Women shall give Suck to their Children two years intire if they desire to accomplish the time appointed to suckle them the Father shall nourish and cloth the Wife and his Children according to his faculties Expend not but according to the measure of your Goods the Father and Mother shall not necessitate themselves for their Children The Heir shall perform what is above ordained he shall entertain his Father and Mother according to his abilities If the Parents would wean their Children before two
not to be objected against us because we are not subject to Foraign Laws Again that custom or use of Civil or Canon-Laws or Precedents doth not make Civil or Canon-Law the Law of England appears by the use of Sentences of Philosophers and Poets and Precedents of Historians all as much used in Courts of Records of Courts of Judicature as the Civil or Canon-Law yet doth not this use or custom make these Sentences of Philosophy and Poets and the like to be the Law of England or obligatory to the People of England unless such Sentences of Philosophers and Poets are selected from the rest and inacted or confirmed by Act of Parliament to be hereafter the Laws of England And they are so far otherwise from being Laws of England that Cardinal Woolsey Mich. 21. H. 8. Coram Rege was Indicted That he intended Antiquissimas Angliae Leges penitus subvertere enervare universumque hoc Regnum Angliae ejusdem Regni populum Legibus imperialibus vulgo dictis Legibus Civilibus earundem Legum Canonibus in perpetuum subjugare subducere c Let any shew a sensible reason why the Bishops and Ecclesiastical Judges who actually bring in the whole heap of Civil and Canon Laws to judge of the Marriages Filiation and Succession of the Subjects and amongst them the new coin'd Law at the Council of Trent made when Forein Jurisdiction was abolish'd and thereby actually deprive him of that invaluable liberty to which every Native Subject is born and is confirmed to him by so many Acts of Parliament And those great Fundamental Acts Magna Charta and the Petition of Right to have his Birth-right tried per legale judicium parium deserve not as high a censure by Parliament as Cardinal Woolsey had who only intended to do the same And if any hath any mind to consult besides the Laws and Precedents against Forein Laws and Precedents Bod. lib. 1. of a Common-wealth fo 107 108. will give him some satisfaction Forein Laws become not the Laws of this Land by being used by Lawyers where he saith It was in most strong Terms judged by a Decree in the Court of Paris in the Case of Philip the Second the French King That be was not bound unto the customs of the Civil Law at such time as they who were next kindred would have redeemed of him the Countrey of Guyens howbeit that many both think and write the Prince to be bound to that Law for that they think that Law to be Common to all Nations and not Common to any City And yet than the which Law the Romans themselves in some Cases thought nothing more unreasonable But our Ancestors would not have even our Subjects bound to the Roman Laws as we see in the Ancient Records that Philip the Fair erecting the Parliament of Paris and Mompelier declared That they should not be bound unto the Roman Laws And in the erection of Universities the Kings have always declared That their purpose was to have the Civil and Canon Laws in them publickly professed and taught to make use thereof at their discretion but not that the Subjects should be any way bound thereto lest they should seem to derogate from the Laws of their own Countrey by advancing the Laws of strangers And for the same cause Alaricus King of the Goths forbad upon pain of death any Man to alledge the Roman Laws contrary to his Decrees and Ordinances which M. Charles du Moulin my Companion and Ornament of all Lawyers mistaking is therefore with him very angry and in reproach calleth him therefore barbarous howbeit that nothing was therein by Alaricus decreed or done but that which every wise Prince would of good right have decreed and done For Subjects will so long both remember and hope for the Government of Strangers as they are Govern'd by their Laws The like Edict there is of King Charles the Fair and an old Decree of the Court of Paris whereby we are expresly forbidden to alledge the Laws of the Romans against the Laws and Customs of our Ancestors Yea the King of Spain also hath upon Capital pain forbidden any Man to alledge the Roman Laws in confirmation of their own Laws as Oldrad writeth And albeit there was nothing in the Laws and Customs of their Country which differ'd from the Roman Laws yet such is the force of that Edict that all men may understand that the Judges in deciding of the Subjects Causes were not bound unto the Roman Laws And therefore much less the Prince himself who thought it a thing dangerous to have his Subjects bound unto strange Laws And worthy he is to be accounted a Traitor that dares to oppose strange Laws and strange Decrees against the Laws of his own Prince In which doings when the Spaniards did too much offend Stephen King of Spain forbad the Roman Laws to be at all taught in Spain as Polycrates writeth Which was more straightly provided for by King Alphonsus the Tenth who commanded the Magistrates and Judges to come unto the Prince himself and as often as there was nothing written in the Laws of their Country concerning the matter in Question Wherein Baldus is mistaken when he writeth the Italians to be bound to the Roman Laws but the French no otherwise than so far as they should seem unto them to agree with Equity and Reason For the one is as little bound as the other howbeit that Italy Spain the Countries of Province Savoy Languedoc and Lyonnois use the Roman Laws more then other People And that Frederick Barbarossa the Emperour caused the Books of the Roman Laws to be published and taught the greatest part whereof have yet no place in Italy and much less in Germany But there is much difference betwixt a Right and a Law for a Right still without command respecteth nothing but that which is good and upright but a Law importeth a Commandment for the Law is nothing else but the Commandment of a Soveraign using of his Soveraign Power Wherefore then as a Soveraign is not bound unto the Laws of the Greeks nor of any other stranger whatsoever he be no more is he bound unto the Roman Laws more then that they are conformable unto the Law of Nature which is the Law whereunto saith Pindarus all Kings and Princes are subject From which we are not to except either the Pope or the Emperour as some pernicious Flaterers do saying That those two viz. the Pope and the Emperour may of Right without cause take unto themselves the Goods of their Subjects Object 5 Forein Laws cannot be baptized with the name of the King's Laws without act of Parliament As to what is mention'd of baptizing Forein Ecclesiastical Laws by the name of the King 's Ecclesiastical Laws of England he seems still to mistake and puts baptizing by the name where it should have been confirmation by the name and that confirmation too to be given not by the Bishops but the
Parliament Besides there is not de facto that name given for the Ecclesiastical Court is kept in the Bishop's name and not in the King's name And the Bishop takes all the profits and not the King Fain he would mend the matter and says That a Leet is kept in the Lord's name and he hath the profits yet it is the King's Court. It might better been said it was once the King 's before he gave it or sold it to the Lord of the Leet as are many Lands not being Ancient Crown-Lands The King purchases but if he sell again such Lands for valuable considerations the propriety as well as the name of such Lands is then in the buyer and not in the King Therefore though he hath set out his Book as baptized both in Latin and English by the name of de jure Regis Ecclesiastico and of the King 's Ecclesiastical Laws yet with due Reverence to the opinion of so great a Father of the Law it may be said there appears none either to baptize or confirm the name nor any God-father to it but himself Neither will the Title of the King 's Temporal Laws set upon Magna Charta which gives that liberty to every Subject of Tryal of his Birth-right per legale judicium parium be consistent with the Title of the King 's Ecclesiastical Laws which take it away and give it to a Trial by Certificate of the Bishop Object 6 It is again by Coke alledged and Precedents cited That Edward the Confessor William the First Henry the First Henry the Third Edward the First Edward the Second and all English Kings have Govern'd and Ruled both the Kingdom and the Holy Church and have given Jurisdiction to Abbots Priors and Bishops and have granted prohibitions when they transcended the bounds of their Jurisdictions and that Reges sacro oleo uncti sunt spiritualis Jurisdictionis capaces but still this is nihil ad rhombum nor pertinent to make good the Name or Title he hath set his Book of the King 's Ecclesiastical Laws For there is a great difference if he had Entitled it de jurisdictione Regis Ecclesiastica for the King's Jurisdiction and the King's Laws are clean divers things And there is a great difference where he grants Jurisdiction to Ecclesiastical Persons and where he grants them by what Laws they shall exercise that Jurisdiction for the King 's of England have Anciently granted Jurisdiction and Commissions to Ecclesiastical persons as Bishops and Priests to be Judges in the King's-Bench Chancery and other Courts yet could they not grant them power to judge by any other Laws than the Laws of England except by Act of Parliament Then as to granting prohibitions where the King had not or could not by Law grant them Jurisdiction proves nothing that any King did or could by Law grant them Jurisdiction of general Bastardy without Act of Parliament or that there was any Law or Act of Parliament which gave them Jurisdiction of general Bastardy because the King's Courts durst not grant prohibitions for general Bastardy For in those superstitious times neither the King nor Judges dar'd provoke their Excommunication and therefore at the making of the Statute of Merton when the contest was between the Ecclesiastical and Secular Power which of them should give the Law to Marriage The Temporal Judges for fear of their Excommunication took only like the Jackal what the Lion refused and left them which they called special Bastardy So quod non capit Christus capit fiscus which is intended of the false Christ for the true Christ took nothing from it but paid tribute to it Besides if many Jurisdictions should judge by other Laws this would be destructive both to the King and Subject Though the King therefore give the Sword he cannot change the Ballance as is in effect confess'd by Coke himself 3 pt Inst fol. 120. in his Exposition of the Statute 27 E. 3. of Praemunire where he saith The right of King and Subjects not triable per alias Leges or aliud Examen then the laws of the Land If Freehold and Inheritance Goods or Chatâ—les Debts or Duties wherein the King and Subjects have a right or property should be judged per aliam legem which he mention'd before to be Civil or Canon Law And other Trial which he makes to be any Trial except by Jury or be drawn ad aliud examen These three mischiefs endeavour'd to be prevented in the said Statute would necessarily follow viz. Disherison of the King and his Crown the Disherison of all his People and the undoing of the Common Law And fol. 121. he farther saith Some have made a question whether since the Ecclesiastical Jurisdiction was acknowleged in the Crown an Ecclesiastical Judge holding Plea of a Temporal Matter belonging to the Common Law doth incur the danger of a Praemunire Though hereof is no question at all yet lest any Man might be led into an Error in a Case so dangerous we will clear this point by Reason Precedent and Authority The Reason holdeth still to draw the Matter ad aliud examen c. And he citeth before several Precedents and says The reason of all these Cases is because it drawes matters Triable at Common Law ad aliud examen and to be discussed per aliam legem Peter du Moulin that famous Protestant Divine writes That there was a a Book printed in the former Age entitle The Canons of the Apostles Anti-Christian whereby the Temporal power of the Pope is wholly taken away And the sixth Canon expresly forbids a Bishop to meddle in Civil affairs And in the 84th Canon are these words A Bishop that meddles in War or seeks to obtain these two things that is to say the Empire of Rome and the Sacerdotal Government let him be deposed for the things of Caesar are to be given to Caesar and the things of God to God And that one Arnold who Preached this Doctrine That the Pope had no Jurisdiction nor any thing to do with the Temporal affairs with great applause was in the year 1155 made a Martyr and most cruelly burnt at Rome by the order of Pope Adrian And this agrees with the Testimony of Christ himself Bishops Judg. not only as to Jurisdiction of Marriage and Legitimation but all other matters wherein Temporal propriety comes in question that he refused the Jurisdiction of it as appears Luk. 12.13 And one of the company said unto him Master speak unto my Brother that he divide the inheritance with me And he said unto him Man who made me a Judge or Divider over you It appears therefore the Episcopal Jurisdiction of judging or dividing Temporal goods in the Spiritual or Ecclesiastical Courts came not from Christ but was usurped by Anti-Christ by force of Fire and Faggot and is from him derived to Bishops and Ecclesiastical Courts to the destruction of the rights of Princes and the liberty and propriety of the people
and Earth and all the good Angels his faithful Ministers to assist me in the defence of the faithful obedience to the Law of the Gospel and of his Church Assist me O Christ assist me O Jesu assist me O Holy Spirit Ed. Kelly It appeareth written on a White Crucifix My Grace is greater then the Commandment for my Grace is such that Mad-men shall attain Blessedness Verily I say unto you If I command a man to kill his Brother and he doth it not he is the Child of Sin and Death c. Dr. d ee Hereupon we were in great amazement and greif of mind that so impure a Doctrine should proceed from such as I from the beginning and hitherto had judged and undoubtedly esteemed good Angels and had unto Edward Kelly offer'd my Soul as a pawn to indemnifie Edward Kellys crediting of them as the good and faithful Ministers of Almighty God But now my heart was sore afflicted on many causes and Mr. Edward Kelly had as he now thought he had a just cause of leaving dealing with them any more and his Prayer to God had been as he said of a long time that he might have power to do it Afterward I made some Declaration to our Wives of this our great greif by reason of the Command laid upon us to use Matrimonial Acts between us four in common which thing was strange to the Women and they hoped of some more comfortable issue of the matter and so for that time I left off After Edward Kelly had been four hours in seeing new Apparitions giving him admonition to receive the same Doctrine with threatning of Judgment upon us if we should not and many other things told me We departed each to Bed where I found my Wife awake attending to hear some new matter of me And we being alone I then told her and said Jane I see there is no other remedy but as hath been said of our cross Matching so it must needs be done Thereupon she fell a weeping and trembling for a quarter of an hour and I pacified her as well as I could and so in the fear of God and beleiving of his Admonishments did persuade her that she shewed her self prettily resolved to be content for God's sake and his secret purposes to obey the Heavenly admonishment But Edward Kelly who had divers other Apparitions made to him in his own Chamber remained notwithstanding in his purpose of forsaking and utterly discrediting these Creatures A Spirit calling himself Raphael the Arch-Angel there speaketh to them who were not satisfied with the Testimony of Madimi Raphael Dear is thy Wife more dear is Wisdom and most dear ought I to be unto thee Thou being Elected tremblest and by doubting sinnest all these things are lawful unto you I admonish you as the Children of God to consider your Vocation and the love of God towards you and not to prefer your Wisdom before the Wisdom of the Highest whose Mercy is so great towards you Consider that if he find you obstinate the Plâ—gues of hainous Sinners and the contemners of the gifts of God shall fall upon you Therefore shew your selves lovers of him that hath led you and cover'd you with a mighty Sheild or shortly look for the reward of those who contemn the Wisdom and Majesty of the Highest I Raphael counsel you to make a Covenant with the Highest and to esteem his Wing more then your lives After some little discouse and conference there they went to Bed April 20th 1587. April 21th 1587. John Dee Edward Kelly Jane d ee and Jane Kelly promise to God though above their Carnal reason in Abraham-like faith and obedience to subscribe a Covenant to him to have one another in common April 22th 1587. Edward Kelly having on further consideration a new reluctancy concerning this promiscuous Matrimony makes a Declaration in writing that he would from that forward no farther meddle therein April 24th There are further Prayers made to God desiring a further manifestation of his pleasure concerning this new Doctrine so contrary to the Laws formerly promulgated by him A great flame of Fire appeareth in the principal stone standing on the Table before Edward Kelly and behold one suddenly seemeth to come into the South Window of the Chappel right against Edward Kelly but before that the stone was heaved up an handful high and set down again well which thing Edward Kelly did think signified some strange matter toward Then after the man who came in at the Window seem'd to have his nether parts in a Cloud and with spread abroad Arms to come towards Edward Kelly at which sight he shrunk back somewhat and then that Creature took up between both his hands the principal stone and frame of Gold and mounted up away as he came Edward Kelly catch'd at it but could not touch it at which thing so taken and carried away and at the sight thereof Edward Kelly was in great fear and trembling but Dr. Dee was glad and well pleased A Fire next appears in the lesser stone left behind on the Table and a man in the fire with flaxen hair hanging down on him being naked to the Paps with spots of blood upon him and in the shape of Christ Christ If I had intended to have overthrown you or brought you to confusion or suffered you to be led into temptation beyond your strength and power then had the Seas long since swallowed you yea there had not a Soul lived amongst you But the Law and tidings of Gladness in Mankind are both grounded in me I am the beginning and the end behold I was even my self the figure of Misery and Death for your Sins why therefore disdain you to be figured after me And as I have made you the figure of two People to come so have I likewise sanctified you in an holy Ordinance giving you the first-fruits of the time to come contrary to my self I teach you nothing for this Commandment is not to be given to Mortal men but is given to you to manifest your Faith I I am the first and the last and I will be Shepherd overall that the Kingdom of my Father may come and that my Spirit may be on all flesh where there shall be no Law nor need of light for I my self will be their light for ever I am Holy and Holiness it self and out of me cometh no unclean thing and if there be any of you that seeketh a Miracle at my hands and beleiveth in my words let him or her present themselves here next Monday and he shall perceive that I was the Judg of Abiram and the God of Abraham May 3d. being Sunday 1587. Stylo Novo A Covenant with God is drawn into form that according to his new Commandment they will by Abraham-like-faith and obedience use Matrimonial Acts with one another in common and was subscribed by John Dee Edward Kelly Jane Dee and Joan Kelly at Trebon-Castle The Covenant being thus formed written
and subscribed by the parties on their parts it was thought necessary by them that God should make some manifestation on his part that he would accept it in that form of words it was written and to that end Dr. Dee with Edward Kelly went to the Chappel to the South Table and there Dr. Dee saith he first praying to Almighty God Creator of Heaven and Earth to encrease his Faith and open the eyes of his Heart He read over the Covenant verbatim before the Divine Majesty and his holy Angles After a quarter of an hour Madimi appeareth Madi Pepigistis Dr. d ee Pepigimus A Voice Ratum est perumpite sunt vobis omnia communia Dei non hominis estote promissa quae sunt possidete vobis distinata A ternus sum Edward Kelly declared formerly his opinion That all Spirits appearing in the shape of Women were evil Spirits and not good which is seems made him not again acquiesce in his apparition of Madimi he therefore May 20th required again the writing subscribed to expunge his name from it but having got it he cut it into two equal parts and kept that part wherein were his own and his Wives names and returned the other to Dr. d ee and his Wife But afterwards Madimi did with her finger drawn on the two papers make them whole again c. Then an apparition is made of Christ standing in a great Globe of Fire with a Purple Robe Christus Who sitteth on the Cherubims c. As I humbled my self to Death wherein the Unity between my Congregation and me was before my Father perpetually sealed c. So be you content to be the figures of the things that are to come by you that it may be a perpetual Testimony before the Heavens and before Men of your perfect and sound faith And thou even thou who hast tore in peices this Morning this Covenant which thou hast made with me behold the time shall come that thou shalt be torn in peices thy self and I will turn away my face from thee for a time c. But because thy mind was never to forsake me even so shalt thou never be forsaken of me Take heed of the Tempter thou madest a Covenant with me in paper which thou canst not by tearing the same put out for my Register is Eternal He that pawneth his Soul for me loseth it not and he that dieth for me dieth to Eternal life Behold you shall both as Lambs be brought forth before men in your later days and shall be slain and your Bodies tossed to and fro but I will revive you again Dr. d ee After which as I and Edward Kelly walked out at the new stairs into the new Orchard along the little River to view the small Fish and returning to the fore-stairs again Edward Kelly saw two as high as my Son Arthur fighting with Swords by the River-side and the one said to the other Thou hast beguiled me Then I at length said unto them Can I take up the matter between you One said Yea that you can In what is it said I Then said he I sent a thing to thy Wife by my Man and this Fellow hath taken it from him they fought sâ—re at length he that had it was wounded in the Thigh and it seem'd to bleed afterward he that was wounded did bring a yellow square thing out of his bosom then I guessed it to be my stone which was carried away as is mention'd before suddenly he seem'd to have been out of sight and to be come again he threatned the other that had wounded him and said He would be even with him he asked whether he had lain it under the right Pillow at length they both went one after the other into a little Willow-Tree-Body on the right-hand next the new Stairs into the Garden the Tree seem'd to cleave or open and they to go in Hereupon we went away and I coming to my Chamber found my Wife lying on her Bed where I lay yesternight and there I lifted up the right Pillow on which she lay and there I found my pretious stone that was before taken away by Madimi whereat Edward Kelly greatly wondred and doubted the verity of the shew but I and my Wife rejoiced thanking God Saturday May 23th Proeces ad Deum fundebam c. And then we requested That the Act of Obedience performed according to our Faith conceived of our Vocation from the Almighty and Eternal God of Heaven and Earth might be accepted which is by Apparition and Voice accepted and blessed So hence none doubts to conclude that the Spirits which here appeared and assumed the names and shape of an Arch-Angel and Christ were Devils transformed and neither good Angels nor Christ because they tempted to Adultery and Uncleanness Bishops set up Community of Women for Commutation money The like Community is set up by Ecclesiastical Laws and Bishops by pardoning for Money the deflouring and desertion of as many Virgins as you will so you marry them not before a Priest in a Temple and by the Popish Clergy who have liberty for a small rate or Taxa Camerae to lie with as many Women-Virgins or Wives as they will so they marry them not before a Priest in a Temple So the Authors of the Bishops Certificate of Filiation were the Daemons of Hamon Delphos and other Oracles Bishops Certificate of Filiation where it appears it was the Custom amongst the Heathens when any Son doubted or knew not his Father to consult the Devils Oracle as appears by the example of Alexander the Great Oedipus and others and the Devil gave them their Response by his Arch-bishop or Priest and if they went not to him in person but sent by Certificate in writing which is the same with the Certificate of the Bshop So the Law of Fictions of Marriage by intention of the Mind only without carnal knowledg of the Body Consensus non Concubitus and verba de praesenti without the Act and Consensus non Concubitus facit matrimonium came first from Cecrops an Idolatrous King of Athens and was since revived in imitation of him by Idolatrous Popes and the same Law was confirmed by the Pagan Goddess Juno and the Popish Mother of St. Kentegern both got with Child without a Man as after more at large mention'd to the intent Husbands might not be Unbelievers if their Wives were got with Child without them seeing it is sufficient if they had a good intention in their Mind and spoke Verba de praesenti and there was Consensus non Concubitus So the Law was first invented by Aruspices South-sayers and Astrologers of prohibiting Times and Seasons of Marriage for the Gâ—eeks Romans Times when Marriages go out and come in Chinoys and other Heathen Nations believed their Marriages could not be happy unless the Birds and the Stars were consulted for a lucky day and lucky hour to which purpose is that of
Juvenal Veniet cum signatoribus Auspex and of Ovid Mense malum Maio nubere vulgus ait and they declared to the parties the unlucky Ides Kalends and all the dismal times and days which got the Cheats much money from the foolish people and to continue the same Trade the same was revived by Popes and Councels of Laodicea Iterda and Trent by their prohibitions of Marriage in times of Advent Septuagesima and Rogation Pope Soter made the Law prohibiting Marriage without delivery of the Woman by the Father and receiving a Benediction from the Priest Delivery by the Father and Benediction by the Priest yet Christ saith For this cause shall a man leave father and mother and though a Father may deny to give his Daughter so liberal a Portion if she marry without his consent as he would give with it yet can he not prohibit her to marry and when Rachel said to Jacob Give me children or I die and he in anger replyed Am I God he thereby shews that 't is not the Benediction of the Priest or Pilgrimages to Saints cause fertility or sterility but Children are the gift of God Marriage within the fourth degree Pope Calixtus made the Law prohibiting Marriage within the fourth degree either of Consanguinity or Affinity and others extend the same as well to Spiritual as Carnal kindred The Law prohibiting Marriage without License was first set up by the Priests of Priapus and Venus License to marry And the Priests of Diana her self could no more live without License-money for Marriage then those of Venus which made the Virgins of Greece before they presumed to marry humbly to beg the Goddess's pardon that they left her Nunnery for which they brought good Fees and Offerings to the Priests Power of the Pope translated to the Arch-Bishop of Canterbury The Law of Dispensations Legitimations and Confirmations of Marriages and Children and the whole Papal power therein translated to the Arch-Bishop of Canterbury by 25 H. 8.21 was made by Papists in a time of Popery The Law of Banes was invented by Popes and revived by the late long Parliament Banes and the Laws of New England only translating the Marriage to the Magistrate instead of the Priest Marriage without a Priest or Temple The Law prohibiting marriage without a Priest and a Temple was invented by the Priests of Priapus and Venus and revived by the Pope and Council of Trent In all these Ecclesiastical Laws of Marriage the two Strumpets Theodora of Justinian Strumpets and Theodora of Pope Sergius and that impudent Quean Marozia and other Strumpets of the Popes had a great hand We are like therefore to have excellent Laws in the Bishops Courts and Justice for Marriage Fillation and Succession while the Laws of such Legislators continue All Laws prohibitory of Marriage or Meats came from the Devil Lastly There needed not to those who believe the Scripture this Recital of so many wicked persons to be Authors of this mention'd Ecclesiastical Laws for it is manifest by the Scripture it self that all Laws prohibitory of Marriage or Meats they being things not indifferent but necessary for the preservation of Humane Nature in the least Ceremony or Circumstance where they are not prohibited by the Law of God came from the Devil as appears 1 Tim. 4.1 2 3. Now the Spirit saith expresly That in the latter times some shall depart from the faith giving heed to seducing Spirits and Doctrines of Devils speaking lyes in Hypocrisie having their consciences seared with an hot Iron forbidding to marry and commanding to abstain from meats which God hath created to be received with thanksgiving I conclude therefore that all the fore-mentioned Ecclesiastical Laws prohibiting marriage without their Popish Ceremonies or Circumstances not appointed by God came from the Devil or many Devils The Final causes of the Ecclesiastical Laws concerning Marriage invented by Daemons and the Priests of Priapus and Venus were Lust Covetousness and Ambition of the Priests The second Reason against Ecclesiastical Laws is the wicked ends for which they were invented which were no other but only to satisfie the insatiable Lust Covetousness and Ambition of Priests As to which the Indian Histories mention That in the Kingdom of Molabar neither the King or People are allowed to have a Wife Luft Covetousness Ambition of Priests the only ends of Ecclesiastical Laws of Marriage unless sanctified for him by the first nights Lodging of the holy Bramin who is their Priest which is the reason that there the King's Sons succeed not to the Kingdom but their Sister's Sons for they say they know not the Father but they know the Mother Linschot Little better is done in Catholic Kingdoms often times though not openly yet secretly by those unchristian Bramins the Cardinal Confessors and it is common in Italy for Catholics to jeer one another that their Children are Fils de Prestre The Benyan Indians give their Priests the first fruits of their Wives and think the Marriage will not be blessed without it The Southern Americans in divers parts think it a great Devotion to offer their Daughters to be first defloured by the Priest The Algier Mahometans and the people of other parts of Africa think it a meritorious work to prostitute their Wives to their Morabates or holy Saints whom they esteem their Prophets And Leo Afer who was that Countrey-man tells a story of one of these holy Prophets who came to a Town and espying a handsom Woman being a person of very good quality and great esteem in the Town yet the Prophet took her being at a Bath and lay with her openly in the concourse of a great multitude of people who applauded the Fact as a great honour to the Lady and many of them ran to congratulate her Husband how happy he was to have so holy a Man partner with him in his Wife and when some of the better sort of people whose discretion was a degree above the common superstition of their Religion went and informed the Magistrates of the Town of the foul and shameful act was committed by a Vagabond Prophet and they sent their officers to apprehend him the people rose upon them and would have knockt out the Brains both of Officers and Magistrates had they not speedily desisted Carpenter reporteth from a Monk of Doway That not long ago it was a custom in Biscay a Province in Spain that every Man having married a Wife sent her the first night to the Priest of the Parish which it seems was the Fee due to the Priest for his labour the same day of marrying her in his Temple Carp 193. So it was at the door of the Tabernacle Hophni and Phinehas Sons of the Priest lay with the Women of the congregation 1 Sam. 2.22 To the Temple of Marriage the Popish Priests have of latter times added the Chappel of Ease of Auricular Confession Auricular Confession in a more commodious
conclusions or similitudes to run on four Feet or to say Because all these Communicants being Men and Women are by the Scripture call'd one Body Figurative or Politick Therefore to conclude that they are one Body natural and one Person natural And as no one body natural or one person natural can have a distinct propriety or a right of Action against it self so none of these Communicants Men and Women can have the same against one another Excellent Doctrine for the one Body made of many and Society of the Adamites I shall not here dispute which is the greatest Absurdity of Transubstantiation of Bread into Flesh in the Mass or of the Flesh of a Woman into the Flesh of a Man in Marriage or whether gains most the Priest by the former or the Lawyer by the later Cheat. But this is easily shewn that the Communicants in the later Fantastick Sacrament lose more Temporally then in the former though perhaps the other may Spiritually And in Compliment to the weaker Sex I shall first do them right in shewing the manifold mischeifs thereby ensue to them Wife made a slave incapable of propriety First By the fiction of their being made the Priest one Person with the Husband Whatsoever they have is the Husbands and what the Husband hath is his own they lose all the right of Propriety in their own Goods to the Husband as perfectly as if they had been bought by him for Slaves at a Market though the Husband hath therefore on the Wedding-Day transubstantiated into him a very fine Wife all Silk and Satin Velvet Cloth of Silver Cloth of Gold Pearl and pretious Stones Yet after the firâ—â— Month when the Moon changeth he may sell away St. Paul's Impertinent putting the Money in his pocket and transubstantiate her into a plain Petticoat and Wastcoat to last as long as she lives and when she dies bury her in Woollen and this is all the poor Woman gets by having him before Mr. Parson in his Temple and making him to promise with all my Worldly Goods I thee endow which made a wary old Gentleman as saith the Woman's Lawyer pag. 121. an acquaintant of his lest his Son-in-law though he did not take his Daughter down in her Wedding-shoes should let her after go without stockings and break her heart to see all her old feathers moult and no new spring and enforce her to take new Wings to fly to Heaven before he was willing to spare her therefore he in good earnest bound his son-in-Son-in-law in a good sound bond to give his Daughter every year so many Gowns Kirtles pairs of Silk-stockings c. Her Estate forfeited and consumed by her Husband's Vices 2. If her Husband hath mortgaged or fraudulently made away his Estate before marriage if he carelessly after marriage spend it on other Women Drinking Diceing or other viciousness if he is Out-lawed Attainted for Felony Rebellion Treason or taken in Execution for Debt or Surety-ship all her Lands Goods and Portion shall be taken from her during his life which may be longer then hers and she may wear Rags or starve if she can neither work nor beg Rob'd of her Trust in the Testator's Goods as well as her own 3. If she have a great Estate as Executrix her Husband will change the bonds into his own name sell the Leases change the propriety of all the Goods and when he dies leave her not a farthing of the Testator's Goods or her own The Turk is not so turkish to rob his Wife who is a Free-woman or to transubstantiate the propriety of her Goods into his for so 't is said Alchor cap. 4. pag. 49. O ye that believe in God it is not lawful for you to inherit what is your Wives by force and this is not only of their own goods they brought with them but likewise of the gifts of the Husband 's Goods given them by himself for it is further said ibid. Take not violently away what you have given them unless they be surprized in manifest Adultery But amongst Christians Harlots are in better condition then Wives for though the Scripture 1 Cor. 6.16 sayes in the same words of an Harlot as of a Wife Harlot loseth no Propriety Know ye not that he which is joyned to an Harlot is one Body for two saith he shall be one flesh yet never was so absurd Exposition made that the Harlot loseth the propriety of her Goods and Rights to him who lies with her It appears likewise by the Roman forms of Divorce that the married Wives who were Free-women notwithstanding their marriage retained their propriety the words of which form were Res tuas tibi habeto the word tuas shews propriety 4. He may cheat her in all his Promises or Contracts made with her before marriage as a Man promised a Women who knew no Quirks in Law if she would marry him to leave her so much worth after his death and she thereon marries him this promise is extinguished by the marriage and she shall never have benefit of it Compell'd to pay her Husband's Debts 5. He may by this Transubstantiation by many tricks in Law eause others to bring actions without cause against his Wife for his own use and Arrest Out-law and cast her in Goal at his pleasure A. B. and D. his Wife were bound by obligation in forty pounds for payment of twenty he suffer'd a Judgment by default and after suffer'd his Wife to be taken in Execution and put in Prison by his assent whereby the Wife was driven to procure her own friends to pay the Condemnation for her Husband and redeem her from her Turkish Pateroon otherwise she might long enough have lain in Algiers for he would till this was done give no Warrant for any Writ of Error and this was the Case of the good Wife at the Clock in Aldersgate-street and the Judges pittied her but little for as my Manuscript says they only smiled at the unkind and subtile device And this was done 42 Eliz. which shews that the poor Woman married by Priest though they had a Queen Regnant there had little better justice done them than now Made an Out-Law a Villain a pagan an Alien a Person forfeited c. 6. Another mischief is by this Transubstantiation she not only loses the right of propriety as a slave but the right of action as an Out-law disabled to sue for any injury done her and to express the same more full and plainly she by this blessed Sacrament of marriage by a Priest is made a Villain a Pagan an Alien an Excommunicate a Nun of Lisbon an attainted in a Praemunire a non habens personam standi in judicio against her Husband a person convicted forfeited and confiscated to his own use and what is worst of all when he hath robbed and rifled her of all she hath he may exercise his Tartarian Authority and beat her because she hath no more Is this the
constrained to obey them or to dye for hunger Of the Barbarous Law of Illegitimation or making Children incapable of Succession to the Goods of their own Parents And of the most excellent Law of the Emperour Anastasius decreeing all natural Children to be Legitimate and the repeal of the same caused by the Strumpet Theodora and the succeeding Popes and Bishops The power of Sale of Legitimations of natural Children was first in Pagan Rome usurped there by their Pagan Bishops and Priests and hath since in imitation of them been usurped by Christian Bishops in name but indeed Anti-Christian for the same filthy lucre amongst whom the Bishop of Rome and the Arch-Bishop of Canterbury have been the Primates But after the Emperours of Rome perceiving the vast Sums as it were ex lotio the Prerogative-Office and the Office of Faculties heaped together they swept them all into their own Exchequer and suffer'd no Legitimation to be granted unless they bought them of the Emperours who received great gain thereby till the Empire came into the hands of the vertuous Anastasius who seeing the great oppressions on his Subjects by taking from them that Birth-right which the Law of God and Nature gave not only to them but every Creature born into the World to be provided for by those who begot them and this to be continued only for the profit of his Exchequer he disdained such sordid and impious gain and made a most pious holy and honourable Decree That all natural Children should be Legitimate whereby all Intails to the Bodies of Women of the Husbands Estates were cut off and the mischiefs of bringing Fictitious Adulterous Supposititious and false Heirs into Families prevented But after Theodora who was a common Prostitute Theodora a common Prostitute the Author of the Ecclesiastical Laws of marriage came to be married to the Emp. Justinian and another Theodora as bad as she and her Daughter Marozia and other such Creatures came to be Strumpets to Pope Sergius and other Popes and had the chief hand in making all the Ecclesiastical Laws of Marriage by which the Bishops to this day judge Do any expect that these Whores of Babylon would ever bring any good Laws out of the Stews into the Church Certainly if any judicious and indifferent person will take the pains to take a full view of the Canons he will easily find there is not one which is not either a Gin to take their Prey or a Bait to cover it and that if all the Theodoras Marozias Laisses Thaisses Phrynes and Floras were to be alive again and sit in a Conclave of Women they nor all their Chaplain Priests could not invent better Laws for the advancement of their Trade or ways to destroy Religion Justice Vertue Modesty and Chastity then the Imperial Papal and Provincial Ganons are under the name of Ecclesiastical Laws And that notwithstanding Bishops amongst Protestants should be so long tolerated to judg arbitraties or according to them not only of Patrimonies and Matrimonies Filiations and Successions of the Subjects but of Kings and Kingdoms themselves is horrible But to return now to Theodora as Bodin Fol. 17. says and appears by divers Civil Laws compared after she had got the the Mastery of Justinian the Emperor her Husband a blockish and unlearned Prince when she had made all the Laws she could for the advantage of Women against their Husbands she got him to enact That it should be death for a man to lie with any Woman but his Wife but if the Wife lay with other Men besides her Husband she should only be infamous that is to say she should have no punishment at all for what honour can Infamy take from her who by Adultery hath already lost her honour and is totally defamed I forbear for brevity to recite other of her Laws but amongst them all there being not one good except for her Trade there cannot be a more wicked then the next For she having the command of her chous'd Husband caused him to repeal the excellent Law of the Emperor Anastasius which made as before mention'd all natural Children Legitimate that is to say where their Filiation was acknowledged by the Father by Adoption or other sufficient Declaration by him of the same whereby the old Ignoramus abrogated a better Law then ever he made or was in the whole heap raked together in his name by Theodora and Tribonian and they set up again the old Pontifical Intails of Husband's Lands to the Heirs of the Body of the Woman married before a Priest in a Temple That unlawful Marriages of Parents ought not to illegitimate the Children Child not to be punish'd for the Father's sin Desertion of Virgins after deflouring caused by Illegitimation First This is contrary to the Law of God to punish the sins of the Parents on the Children Secondly This incourages Fathers to deflour Virgins and when got with Child to desert both the Mother and the Child as a far cheaper way then by carrying her first to a Priest and Temple to draw a charge on himself of her and her Child as long as he lives this incourages likewise such Fathers to get Children by Incest and Adultery and Fornication and any other way which is not lawful rather then according to the lawful Ordinance of God because he can cast off all these Women and Children by only saying they are illegitimate and take an hundred more and serve them the like and they shall thereby be defrauded of Succession to his Goods and so much as Aliment from the same whereas if according to the Law of God and the excellent Law of Anastasius derived from the same all natural Children were to be adjudged Legitimate the Children would be provided for by being by Law made Successors to their Fathers Estate as far as the same will reach and Fathers would be discouraged to get Children unlawfully when they saw they could not thereby wickedly desert and make them illegitimate or evade the Obligation laid on them by the Law of God and Nature to provide for their own A wicked Father ought not to have a greater privilege then a good A Father not to take advantage of his own wrong Thirdly 'T is very unjust That a wicked Father should have greater privilege then a good and he who doth his Child injury then he who is his Benefactor for a Father who gets a Child unlawfully doth a double injury to the Child and rather ought to make double satisfaction to him then if he got him lawfully for he dishonors the Child and it is a rule in Law None shall take advantage of his own wrong if the Child is unlawfully begot who did the wrong but the Father who is therefore if proved to be punished for the wrong and not to take advantage of it against his injured Child to illegitimate and disinherit him nor much less ought the Law to do it for no other reason but because the Father
and those Laws which follow them they will on Divorce under the name of Alimony give the Woman more then the Interest of her Portion amounts to which incourages all Women to seek Divorces whereas the form of Divorce amongst the Romans was Res tuas tibi habeto and she was not to have more then she brought with her and the same is the Law of the Jews and all other Nations except such as live under Popish Ecclesiastical Laws And the injustice of our Ecclesiastical Laws to the contrary is not one of the least causes why Divorce and Separations are of late grown so frequent because Women know they shall gain by the Divorce and rob their Husbands of more then ever they brought them Of the Law of Divorcing after Procreation of a Child for precontract or pre copulation without pre procreation Of the Law prohibiting liberty of private Marriage without publick Witnesses Of the Law giving the Jurisdiction of the secret causes of Divorce between Parents and secret uncleanness of Children in their Parents Houses to publick Tribunals Of the Law compelling persons married though mortal Enemies to Co-habitation Of the Law of Divorce à Mensa Thoro. Of the Canon compelling the parties on Divorce for Adultery to give Bonds and Sureties not to marry again during each others life Of the custom of Protestants marrying with Papists Edward the Fourth was as is alledged first verbally contracted to Eleanor Daughter to john Talbot Earl of Shrewsbury married after to Sir Thomas Butler Baron of Sudley after this verbal contract he married Elizabeth the Widow of Sir John Gray she lived his Wife Eighteen Years and Eleven Months and he had issue by her Three Sons and Seven Daughters Elizabeth his eldest Daughter was first promised in marriage to Charles Dauphin of France but married after to King Henry the Seventh Edward the Fourth being dead leaving his two Sons young in the custody of his Brother Richard the Third they were after murdered by him to make his own way to the Crown but first in preparation thereto Dr. Shaw in a Sermon by him Preached at Paul's-Cross took for his Text Spuria vitulamina non agent altas radices And to make short work they were after by Act of Parliament Proclaimed Bastards and not inheritable to the Crown on no other Allegation made but the pre-contracts before mention'd with Eleanor Butler as is recorded in the Parliament Roll. Husband divorces the Wife for cause of precopulation committed by himself Buchanan rerum Scoticarum lib. 11.652 relates That Earl Bothwel aspiring to obtain the marriage of Mary Queen of Scots compelled his Wife to accuse him of pre-copulation with another Woman before he married his Wife Gordonia Bothuelii uxor cogitur in duplici foro litem de Divortio intendere apud judices Regios accusat uxor maritum adulterii quae una justa apud eos erat divortii causa apud judices Papanos lege vetitos tamen ab Archiepiscopo fani Andreae ad hanc litem cognoscendam litem dare accusatur idem ante Matrimonium cùm propinqua uxoris stupri consuetudinem habuisse nulla in Divortio faciendo nec in testibus nec in judicibus fit mora intra enim decimum diem lis suscepta disceptata dijudicata est After he saith one thing thought necessary was ut consuetae servarentur Ceremoniae ut videlicet publice in conventu civium tribus diebus Dominicis nuptiae futurae inter Jacobum Heburnum Mariam Stuartam denuntiarentur ut si quis quid vitii ant impedimenti sciret quo minus legitimè coirent rem ad Ecclesiam deferrent And after he saith Cùm de nuptiis in Ecclesia denunciandis ageretur lector cujus id munus erat constanter recusare collecti Diaconi seniores cùm reluctari non auderent jubent Ecclesiastem nuptias futuras de more edicere is quidem hactenus paruit ut se vitium quidem scire profiteretur ac paratum seu Reginae seu Bothuelio cum vellent judicare is cum in arcem accersitus venisset Regina eum ad Bothuelium remisit qui quanquam nec blanditiis nec minis Ecclesiastem de proposito deduceret nec rem disputationi committere auderet tamen nuptias apparat unus Orcadum Episcopus est inventus qui gratiam aulicam veritati praeferret caeteris reclamantibus causasque proferentibus cur Legitimae non essent nuptiae cum eo qui duas uxores ad huc vivas haberet tertiam ipse suum nuper fassus adulterium demisisset ita indignantibus omnibus bonis vulgo etiam execrante propinquis per literas improbantibus inchoatus publicis Ceremoniis simulatis etiam factas detestantibus tamen Matrimonium celebratur Which fore-mention'd pre-contract alledged against Edward the Fourth was no more just cause to Illegitimate his Children then it was to Murder them nor was his pre-copulation with another Woman confess'd by Earl Bothwel any more just cause to Divorce his Wife then it was to aspire to the Kingdom 32 H. 8. cap. 38. takes notice of the great mischiefs insuing by dissolving by pre-contract Marriage consummate by bodily knowledge and fruit of Children or Child which Statute follows in these words WHereas heretofore the usurped power of the Bishop of Rome 32 H. 8. cap. 38. Of precontract hath always entangled and troubled the meér Iurisdiction and regal power of this Realm of England and also unquieted much the Subjects of the same by his usurped power in them as by making that unlawful which by God's Word is Lawful both in Marriage and other things as hereafter shall appear more at length and till now of late in our Soveraign Lord's time which is otherwise by learning taught than his predecessors in time past long time have beén hath so continued the same whereof yet some sparks be left which hereafter might kindle a greater fire and so remaining his power not to seem utterly extinct Therefore it is thought most convenient to the King's Highness his Lords Spiritual and Temporal with the Commons of this Realm assembled in this present Parliament that two things especially for this time be with diligence provided for whereby many inconvemences have ensued and many more mought ensue and follow As where heretofore divers and many Persons after long continuance together in Matrimony without any allegation of either of the parties or any other at their Marriage why the same Matrimony should not be good just and lawful and after the same Matrimony Solemuized and Consummate by carnal knowledge and also sometimes fruit of Children ensued of the same Marriage upon pretence of former Contract made and not Consummate by carnal Copulation for proof whereof two Witnesses by that Law were only required beén divorced and separate contrary to God's Law and so the true Matrimony both so Solemnized in the face of the Church and Consummate with bodily knowledge and confirmed also with fruit of Children had betweén
the colour and pretence of a former Contract made with another the which Contract divers times was but very slenderly proved and often but surmised by the malice of the party who desired to be dissolved from the Marriage which they liked not and to be coupled with another There was an Act made That all and every such Marriages as within the Church of England should be Contracted and Solemnized in the face of the Church and Consummate with Bodily knowledge or fruit of Children or Child being had between the parties so married should be by Authority of the said Parliament Deémed Iudged and taken to be Lawful Good Iust and Indissolvable notwithstanding any pre-contract or pre-contracts of Matrimony not Consummate with Bodily knowledge which either of the Persons so married or both had made with any other Person or Persons before the time of Contracting of that Marriage which is Solemnized or Consummated or whereof such fruit is ensued or may ensue as by the same Act more plainly may appear Since the time of which Act. although the same was Godly meant the unruliness of Men hath ungodlily abused the same and divers inconveniences intolerable in manner to Christian Ears and Eyes followed thereupon Women and Men breaking their own promises and faiths made by the one unto the other so set upon sensuality and pleasure that if after the Contract of Matrimony they might have whom they more favoured and desired they could be contented by lightness of their nature to over-turn all that they had done afore and not afraid in manner even from the very Church-door and Marriage Feast the Man to take another Spouse and the Spouse to take another Husband more for Bodily lust and carnal knowledge then for surety of faith truth or having God in their good remembrance contemning many times also the Commandment of the Ecclesiastical Iudge forbidding the parties having made the Contract to attempt or do any thing in prejudice of the same Be it therefore Enacted by the King's Highness The Lords Spiritual Temporal and the Commons in this present Parliament assembled That as concerning pre-contracts the said former Statute shall from the first day of May next coming cease be repealed and of no force or effect and be reduced to the estate and order of the King 's Ecclesiastical Laws of this Realm which immediately before the making of the said Statute in this case were used in this Realm So that from the said first day of May when any cause or contract of Marriage is pretended to have beén made it shall be lawful to the King 's Ecclesiastical Iudge of that place to hear and examine the said Cause And having the said Contract sufficiently and lawfully proved before him to give sentence for Matrimony commanding Solemnization Co-habitation Consummation and Tractation as it becometh Man and Wife to have with inflicting all such pains upon the disobedients and disturbers thereof as in times past before the said Statute the King 's Ecclesiastical Iudges by the Kings Ecclesiastical Laws ought and might have done if the said Statute had never been made Any Clause Article or Sentence in the said Statute to the contrary in any wise notwithstanding Of the Law making private Marriage or carnal knowledge between persons not prohibited by the Law of God to marry Fornication Private Marriage or carnal knowledge is of two sorts the one without publick Witness the other without any Witness at all and both by the Popish Laws because if permitted they would spoil their gains are prohibited and called clandestine Marriages The publick Witnesses are the Priest or Magistrate private Witnesses are any other Marriage without Witness nor clandestine not appointed by Law The Law of England makes all private Marriage and carnal knowledge without publick Witness Fornication The Law of Scotland in some cases relieves though there be a defect and no publick Witness of the Marriage by the Priest as appears in the before cited Author Craig Feud 269. If there appear private Witnesses of Men or Instruments but in all cases likewise where there are neither publick or private Witnesses they leave it to be Fornication That which I here affirm against both is Marriage without Witness not Fornication 1. That carnal knowledge between parties not prohibited by the Law of God to marry is not Fornication nor any other Crime though in the highest secrecy and without any Testimony of Men or Instruments whatsoever 2. That privacy of Marriage being not prohibited nor publication commanded by God all parties ought to have liberty of Conscience to use the one or the other according as suits best with their occasions As to the first there are these reasons That private Marriage without Witness is not Fornication nor any other Crime 1. There is no Law of God prohibiting private Marriage without Witness Where there is therefore no Law there is no transgression Rom. 4.15 2. It is before shewen That for any human Law to prohibit Marriage or Meat where not prohibited by the Law of God the same came from the Devil 1 Tim. cap. 4. v. 1 2 3. And that therefore the Law of the Pope and Council of Trent which nulls all Marriages except made before a Priest in a Temple and two Witnesses came from the Devil and the Priests of Priapus and Venus for filthy lucre to the Priests 3. Isa 45.7 It is said I create evil And Isa 5.20 It is said Wo unto them that call good evil and evil good That put darkness for light and light for darkness Here is therefore a curse pronounced against those who if God created not marriage without Witnesses evil of their own heads call it evil and where God created it to be in darkness and natural modesty of their own heads will have it by Torch-light and the whole Parish of Witnesses 4. All Fornication is Polyandry and Confusio seminum whereby the Child cannot know the Father nor the Father the Child but here is no such thing it is impossible therefore to be Fornication Liberty Conscience to marry with or without Witnesses As to the second Point which I am to maintain That privacy of Marriage without Witnesses being not prohibited by the Law of God nor publication commanded by the same no human power ought to presume to prohibit what Marriage God hath not prohibited but all persons ought to be left liberty of Conscience to marry publickly or privately with or without Witnesses as it suits best with their conveniences and occasions as is the use and practice in all other civil Contracts which men do with or without Witnesses as they think best and were never accused of sin if they had no Witnesses whereon to bring their Action only that Party is justly charged with sin who wilfully breaks his Contracts because there are no Witnesses but God to prove it against him Against these Positions I shall first answer the Objections and then shew further Reasons to confirm the same
causeth dishonour to each Party and if any Man address himself publickly to a Lady as a Suiter and after sight likes her not but deserts her this will disparage her the thoughts of the next that is wished are that she hath been blown on and refused the like will it be to the Man if the Lady refuse him Causeth Fornication Adultery Stews and Brothels Sixthly Denial of liberty of private Marriage and punishing the same as Fornication compells men to what is true Fornication and Adultery for if men cannot be allowed secret Marriage and secret Wives without Witnesses they will take secret Fornication and Adultery and secret Whores and Adulteresses without Witnesses which is a Thousand times worse So what St. Austin says Deme lupanaria turbabis omnia libidinibus is not true nor is Toleration of Stews the Remedy appointed by God to cure Lust but private Marriage is the Remedy appointed by God to cure the Stews for it is said by Paul To avoid Fornication let every Man have his own Woman and every Woman her own Man which if denied to such Persons with whose Conveniencies or Conscience it stands not to take a Woman or a Man publickly before Witnesses and a Priest in a Temple is to deny them to take any Man or Woman at all Whereas if liberty were given of private Marriage without Witnesses to such Persons as are not by the Law of God prohibited to marry this would destroy all Stews and Brothel-Houses for what Man or Woman who have liberty to choose whom they like best and to enjoy them privately to themselves would be so mad to hazard themselves in common Stews to be infected with those miserable and deadly Diseases to be robbed stript have their Throats cut or at least spirited to a Ship sold to Barbado's or Barbary or if they scape those greater dangers to be all their Lives persued by Constables Parators Bedels hooted at by Boys Carted Whipt Pumpt and to come to Bridewell and Beggary at last Seventhly Publick Marriages are too costly for the Poor therefore to prohibit them private Marriage Too costly for the poor is to prohibit them all Marriage except such as will undo them the Grand Seignior himself dares not venture on that is publick or the cost of it which is one reason he is never married publickly by a Priest in a Temple One Man may have reason to marry privately and another not and one to marry public and another not Eighthly There may be many reasons likewise both for Rich and Poor to marry secretly and one man may have a Reason which another hath not and it may be not only inconvenient but dangerous to one and not to another therefore it is fit every man seeing it is not prohibited by God should have liberty to marry publick or private with or without Witnesses as it suits best with his conveniencies Henry the Eighth married Ann Bulloigne the Mother of Queen Elizabeth on the 14 of Novemb. and kept the same so secret that it was not known till Easter after when she appeared great with Child And Arch-Bishop Cranmer was married and kept it so secret that it was not known till discovered by the King No doubt the King and Arch-Bishop both had very good reasons for what they did though they thought not fit to divulge them either before or after So Abraham and Isaac both endeavoured to keep their Marriages secret by telling lies they had very good reason for their Secrecy though not for their Lies From what hath been said appears therefore to be proved First That private marriage or carnal knowledg without Witnesses between Persons not prohibited by the Law of God to marry is not Fornication or any other Crime Secondly That it is a remedy provided by God to prevent Fornication and that the same if not forbidden by Papal Episcopal Pontifical or other Diabolical Laws would overthrow all Stews Brothels and common Whores and the whole Mystery of Iniquity of the Romish Anti-Christ which fills his Coffers and supports his Power by these filthy gains and far worse then those Ex lotio collected by the covetous Emperour Vespasian Thirdly That it is a great sin to forbid to marry And that those forbid to marry who forbid either publick or private marriage where not prohibited by God or take away the free liberty of either or compel to either dissentients in Conscience or differents in Convenience and thereby become accessaries to all the Fornications Adulteries and other wickedness which ensue thereby Of the Law requiring Witnesses of Marriage and Filiation where both are acknowledged by the Parents and no third party claims the Father Mother or Child This irrational Law is put in practice where a Man and Woman not prohibited to marry by the Law of God cohabit or keep private company and the pretence is That every Man should have his own Wife and every Woman her own Husband by the testimony of Witnesses which is as frivolous when the parties themselves acknowledge though as is before proved they are not bound to acknowledg it neither is it a sin and none else pretends claim to the Man or Woman as 't is to require Witnesses of every one possessed of Lands or Goods or to force him to answer to a Bill of discovery of his Title where none other claimeth or pretendeth a Title better than his possession The like is it where a Man and Woman acknowledg a Child to be theirs they ought not to be examined nor forced to produce Witnesses whose the Child is unless another as the Harlot did before Solomon claim or pretend right to the Child for where there is no Controversie or Crime proved there needs no Witness or Judge In like manner where a Child is acknowledged by Parents in their life time the Inheritance ought to be suffer'd to continue to him as left without proof of Witness or Enquiry where no other pretends to be a Child to the same Parents or a better right then Filiation for where there is no Controversie between some parties nor Crime proved nor Suspicion there needs neither Inquisition nor Witness nor Judge Of the Law when claim is made by Corrivals of one Woman of Sequestration of her pendente placito and Sentencing either Man or Woman to be restored in Specie and not in Value That where there is a Breach of promise or Contract of Marriage between a Man or Woman they ought to have liberty to repair themselves in damage is granted but that a Woman is to be Sequestred pendente placito or that either Man or Woman is to be adjudged to be restored in specie is denied Sequestration of a Woman unlawful 1. As to the Sequestration of the Woman this is contrary to Magna Charta and the Petition of right to imprison a free Person before Judgment 2. None ought to be taken in Pledge Distrained or Sequestred which cannot be returned in as good Condition as when Taken
just cause by Divorce one of another without publishing the cause and if there be no cause amongst the Children by taking away as much of their Portions as the offence deserves and giving the same to the innocent Children and by good instruction reproofs and virtuous example of the Parents which will prevent more offences in Children then Tribunals can ever reform though they have Witnesses So Lycurgus by commanding in his Laws That all Captains of Armies and Priests of Temples should marry and that Husbands themselves should come to their Wives Furtim verecunde and the Children be modestly Educated left Sparta so clean from unchast demeanour that when Geradas an old Spartan was asked by a stranger What was the Punishment of Adultery in Sparta for he could find no Law made by Lycurgus concerning that Crime Oh Friend says he There is no Adulterer with us When he reply'd But what if there should be any Geradas told him He should pay a Bull so big as should be able to stretch his Neck over Taygetus and Drink of Eurotas when the other laughing said There is not such a Bull to be found Neither quoth Geradas Is an Adulterer to be found in Sparta where Riches Luxury and wantoness of Apparel are counted a disgrace and Modesty and Obedience to Magistrates an Honour Where the Seminaries of Vices are not permitted how can Vices grow First Therefore as to Man and Wife as Bodin lib. 1. cap. 3. says Nothing seems more pernicious then to compel the cause of Divorce to be shewn before a Judg for in so doing the honour of one or both Parties is hazarded which would not be if neither of them were compel'd to prove the same before a Judg as Plutarch in Alcib relates That when the Wife of Alcibiades went to complain of him before the Judg he came after her into the Court and took her by force and carried her away home on his Shoulders Ne Secreta Fori Panderet whereat the Judg only smiled The Hebrews likewise used to make their Bills of Divorce without a cause neither is it prohibited by Christ if there were a true cause to put her away by private Bill without publick Tribunal or Judg for such were all the Bills of Moses and no publick Judg required to judg of the Cause but only the Conscience of the Party And Joseph having a just cause of suspicion against Mary his Wife did not bring her before a Judg and is commended for so doing to be a just man as Matth. 1.19 is said Then Joseph her Husband being a just man and not willing to make her a publick Example was minded to put her away privily So doth Plutarch in Aemil. relate of Paulus Aemilius Who according to the Custom of the Romans shewed no cause of putting away his Wife but affirmed her very honest wife and nobly descended and by whom he had also many fair Children but when he was press'd by her Friends to shew the cause why he would then Divorce he shewed them his Shoo which was very handsomely and well made and yet says he None of you know but my self feeleth where it wrings my Foot By which doing the Woman is not dishonour'd but may marry with another suitable to her quality and the same liberty had the Wives to divorce themselves from their Husbands without proving or shewing any cause before a publick Judg. This likewise preserves the repute of the Children who though innocent will likewise perpetually bear the reproach if the dishonour either of their Father or Mother be publish'd before a Judg. And further as to drawing the secret offences of uncleanness of Children especially of Daughters before a Judg who are under the Family Jurisdiction either of Father or Mother or Husband the same is an undoing to those who offend for though they never so much repent and amend yet there can be no repairing of their shame or name when publish'd and the innocent who are the Father and Mother and Husband and the other Children the dishonour can never be taken again from them Seneca therefore who in all other things was a great honourer of the virtue of Augustus yet blames as a great oversight in that wise Emperour that he punished the Adulteries of his Daughter Julia publickly by Banishment Quae potius saith he Principi tacenda quà m vindicanda sunt Secondly It makes every petty difference between Man and Wife irreconcilable and heightens Contention from a small spark by blowing it abroad to so great a flame that it is at last unquenchable for the publishing of many things neither criminous nor sinful may affect some modest Natures with as deep a sence of disgrace as those that are false as much as those that are true and when once published cannot by repentance be again revoked but may cause such hatred between the Parties as will never again admit them to live together Thirdly Where offences are not published they oft times may with honour be forgiven and the Parties reconciled which if publish'd cannot So Antonius Pius forgave the Adultery of Faustina and would not draw it to publick Judgment to prevent his own shame And Ael Spart writes That the Emperour Adrian did the like to his Empress who though he suspected yet put not away but only removed such Courtiers from his Court as he suspected Of the Law compelling Persons Married though mortal Enemies to Cohabitation Another great mischeif is in the Ecclesiastical Laws they compel Cohabitation of Men and Women when they are mortal Enemies and take off Exequenda Matrimonialia Officia and due benevolence when one insidiates for the life of the other of which take Bodin further Fol. 19. but says he If the Cause seem not sufficient to the Judg which he intends the Cause alledged of Divorce to an Ecclesiastical Judg or be not well proved it is therefore meet to inforce the Parties to live together in that Society which is of all other the straightest Test having always the one and the other the object of their grief still before their Eyes Truly says he I am not of that opinion for seeing themselves brought into extream servitude fear and perpetual discord hereof ensue Adulteries and oftentimes Murthers and Poisonings for the most part to men unknown And for this cause free Divorce to both Parties and non-Cohabitation was permitted by the Roman Laws not out of wantonness but out of the greatest necessity and Piety for preservation of those ends for which Marriage was instituted with the least danger and dishonour that might be to either Party wherein they must of necessity suffer if either free Divorce be tolerated or the examination of the causes of the same drawn to publick Tribunals One cause Cato the Censor complains of for which the freedom of Divorce and non-Cohabitation ought to be permitted was because he used to say That all Adulteresses were Poisoners and this likewise appears by Valer. Max. lib. 2. p. 8. where it is thus
the Man doth hold his hand by the Priest's hand and the Womans hand by her Husband's hand and all have the Cow by the Tail and then they pour Water out of the Pot on the Cows Tail and it runneth through all their hands and they lave up Water with their hands then the Priest ties them together by the Cloths which done they go round about the Cow and Calf give some Money to the Poor and their Idol and lest the man should think himself married to the Cow and Calf he gives the Cow and Calf to the Priest which is more then they give to the Poor and so they are Man and Wife and whom the Cows Tail hath joined let no Man put asunder which if they do 't were fit the Priest lost his Cow and Calf In Cambaia as Texera reports They have so great esteem of their Cows that a Merchant Banyan spent 10 or 12 Thousand Dukets in the Ceremony of a Nuptial Feast of marrying his Cow to his Friend's Bull for the greater publication of it not suffering it to be private in the Woods and what were the Cow or Calf the better for all this or who could the sooner know whether the Calf were the legitimate Issue of the married Bull or some other in the Woods CHAP. VIII Marriage Filiation Aliment and Succession ought only to be judged by the Moral Law of God THE debate of the lawfulness of the Marriage of Henry the Eighth with Queen Katherine having been his Brother's Wife being in Agitation it happen'd that Cranmer who was after Arch-Bishop and in time of Queen Mary Martyr'd and Dr. Stephens and Dr. Fox met at Waltham one day at Dinner where falling in discourse about the case the other Doctors thought the Marriage might be proved unlawful by the Civil-Law but said Cranmer It may better be proved unlawful by the Law of God And so it may be said here Marriage Filiation and Succession may be better proved as it is in truth lawful or unlawful by the Moral-Law of God then by Laws of Moses of Nations of Emperours of Popes of Bishops of Mahomet of England Scotland Ireland or any human Laws in the whole World First Because the Moral Law is the Law of Nature Secondly Because the Law of Nature is the unquestionable Law of God Thirdly Because it is a perfect Law and comprehends in it all the innumerable Cases which are impossible to be contained in any human writing Fourthly Because it is a Law universally given as well to Gentil as to Jew and no Nation in the World exempted from the Jurisdiction of the Moral-Law Fifthly Because it is a Law immutable and endureth for ever and neither Jew Pope Turk nor any Power in Heaven or Earth except the Legislator himself is able to change it The Jews have an old Tradition That God when he Created the World left a great hole in Heaven that if any other God arrogated the glory of the Creation the true Creator might bid him stop that hole first When a Jew shall stop the hole Left in Heaven near the Pole When the Sun is in a Sack And the Stars turn spots of black When the Moon 's in Mah'met 's sleive And a Priest shall Nature shrieve And her Palace turn a Grange Jew Pope and Turk her Law shall change When the Moon her head shall dress In the Western Wilderness When in Heaven for a Sign Charles his Wain shall cross the Line When the Earth and Water shall Make two Globes and not one Ball. Then Oh then what is more strange Nature 's God her Law shall change Chang'd may Second-Nature be But no Eye shall ever see Highest Nature change from Good Though by us not understood Yea though none him see or know He Eternal Good will do Through all Forms though Nature range Nature 's God will never change It will be ask't perhaps by some In what Tables God hath writ the Law of Nature concerning Marriage Filiation Aliment and Succession and how it may be read To which I Answer That the Tables are of two kinds the External and Internal and the Readers and Witnesses are of two kinds the External and Internal the External Tables of Marriage are express'd by Christ Matth. 19.4 when the Pharisees question of Divorce whether lawful for a man to put away his Wife for every cause He Answer'd and said unto them have ye not read that he which made them at the beginning made them Male and Female The Male and Female are therefore the External and visible Tables wherein God hath written in living Hieroglyphicks or Figurations of the Sexes his Law of Marriage As to External Tables of Filiation Christ expresseth likewise the same Matth. 18.2 And Jesus called a little Child unto him and set him in the midst of them and said Verely I sayunto you Except ye be converted and become as little Children ye shall not enter into the Kingdom of Heaven Whosoever therefore shall humble himself as this little Child the same is greatest in the Kingdom of Heaven And whoso shall receive one such little Child in my name receiveth me But whoso shall offend one of these little ones it were better for him that a Milstone were hanged about his Neck and that he were drowned in the depth of the Sea As to the External Tables of Aliment they are expressed in his own Mother Luke 11.27 Blessed is the Womb that bare thee and the Paps that thou hast sucked The Paps therefore wonderfully prepared to overflow with Milk just against the time the Child is to be born are External Tables wherein God hath written to Innocents in letters as white as Snow that the Mother ought to aliment them with the Milks of her Breasts And when he hath made the Teeth to break through the Coral Gums he writes in those Ivory Tables That the Father ought to provide stronger meat for the Child The Internal Tables are expressed by Paul 2 Cor. 3.3 Written not with Ink but with the Spirit of the living God not in Tables of Stone but in the fleshly Tables of the Heart The External Readers and Witnesses are all Creatures as appears Job 12.7 But ask now the Beasts and they shall teach thee and the Fowls of the Air and they shall tell thee or speak to the Earth and it shall teach thee and the Fishes of the Sea and they shall declare unto thee Go then and ask the Fowls of the Air concerning Marriage Filiation Aliment and Succession they will shew thee their Mateing their Pairing keeping true Wedlock their private retirement to secret places their holes their Caves their Nests they build for their young their Males and Females who procreated them and not the Bishops to be Judges to which they belong their Grand-mother Earth their dry-Nurse the Sea their wet-Nurse Provision for them all their feeding their sucking their young their teaching them when able go to their Grand-mother and take their Diet with her
by Ceremonies and not by Circumstances Of the manifold mischiefs from the Judgment of Marriage by the Ceremonies of a Priest and a Temple 192 1. It compels to enter into an indissoluble Obligation before the Parties can know each other whether they are sit for Marriage or no. 193 2. It give the Bishop the Monopoly of all Women and their Goods 196 3. It gives him the Monopoly of Successions both in private Families and Kingdoms 197 4. It gives him power to Judg of Marriage Filiation and Succession by Fictions ib. 5. It causeth in the Rich Excess and Vanity of Apparel Tilting Turneaments Masking Gluttony Riot and Drunkenness 198 6. It undoeth the Poor in their Marriages 199 7. It causeth Immodesty in Brides wanton Songs and Ceremonies promiscuous Dancing and corruption of Youth 200 8. It exposeth to publick view what God hath commanded to be secret 201 9. It causeth Community of Women Community of Children Fornication Adultery Stews Brothels and the dissemination of most contegious and deadly Diseases amongst the people ib. 10. It hath caused Prostitution of Brides to Priests Lords Guests and others 205 11. It hath caused Consecration of Incest Whores Sodomites to attend the Service of the Priests and the Temples ib. 12. It hath caused the Consecration and Adoration of Priapus Baal Peor Venus Adonis Flora and the first defiling of the Virgin World with Whoredom and Idolatry 207 13. It first destroyed in the World the Omnipresential Worship of God 208 Prayers in Temples and Synagogues except amongst persons agreed prohibited by Christ and why A Poem on the Omnipresential Worship of God and therein of Marriages in Temples 223 15. It caused the bloody Sacrifices of Virgins Children and Indian Wives 229 16. It lays punishments on lawful Child births and destroys Millions of Infants 234 17. It caused the Parisian Massacre wherein were an Hundred Thousand Protestants slain 240 Why the Ottoman Emperors Marry not by a Priest or in a Temple and of the bloody Murders ensued of the Sons of Solyman the Magnificent by his breaking the Custom and his being drawn by Roxolana to Marry her by a Priest 245 12. Bishops proceed to Judgment in the unknown Language of Law Latine 254 13. They Judg for Fees where of the inconveniences following maintenance of Judges and Officers by Fees and not by Satary Exceptions against Bishops being Judges in reference to the Executive Power 1. They begin the Suit with Execution 263 2. They Pledg before Summons Summon before Copy Copy before Oath Punish before Contumacy Judg before Hearing and Arrest before Judgment all which preposteration begins with Execution 268 Of the Inconveniences ensue by Quorums or more Judges than one in a Court 276 A Satyr against the cruel Preposterations above mention'd both in Ecclesiastical and Temporal Courts Of Summons to answer before a Copy given of what is required to be answer'd 286 Of giving a Copy before an Oath of no Calumny 288 Of the multitude of Fictions and Falsities ensue in Chancery and Common Law by neglecting the Oath of no Calumny ib. ad 305 Of Judgment before Hearing Part of a Satyr translated out of Seneca p. 685. on the settish Emperor Claudius who used to Sentence before Hearing 305 An enumeration of divers Forms of Judicial Proceeding wherein People are Condemned before Hearing 1. By repelling men from the Truth and merit of the Cause and compelling them to make their allegations in Formalities and Fictions 306 A Dispute between two famous Judges Fitzherbert and Brook 14 H. 8.25 concerning Truth and Good Sentence and Formality and Fiction in Judicial Proceeding 306 2. By compelling to Original Writs at Common Law and not serving the Party with a Copy of the Declaration without them 312 Mischiefs of Original Writs 313 3. By compelling to the Writ of Subpoena in Chancery and not serving the Party with a Copy of the Bill without it Mischiefs of Writs of Subpoena 4 By the Capias ut lagatum and Excommunicato capiendo A Satyr on a Papist and a Protestant Imprison'd one on an Outlawry the other on an Excommunication against Imprisonment before Hearing and Judgment 329 A Digression concerning the danger of the Three Kingdoms Condemning one another without Hearing by reason of the Non-Union of their three Parliaments in one House Of the Fatal Dangers attending a Non-Union and the inestimable Benefits of the contrary 335 Of matters requisite to perfect an Union An Elegy on the ill effects of Excommunication of Protestants by Protestants causing a Disunion in the late unhappy Civil Wars 343 5. By Excommunication it self The Form of the Jewish Excommunication 345 The Form of the Greek Excommunication against Thieves 347 The Form of the Popes Excommunication against Queen Elizabeth All Forms of Excommunication wicked and Anti-Christian 348 Of the strange Cheats and Superstition in Excommunications 352 Of the damnable mischiefs arise to Christian Princes and States by tollerating Popes or Prelates to Excommunicate without a Sign of Mission from God 362 All Excommunication Curses and Deliveries to Satan by Bishops or Priests without a Sign of Mission from God if Malefice follow ought to be punish'd as Witchcraft if not as a Cheat. 381 A Satyr in defiance of all Excommunication without a Sign of Mission from God 388 An Epode on Protestants Excommunicated by Papists Considerations concerning a True and False Test between Papist and Protestant 6. By Bishops condemning Protestants of Heresie by the Four first General Councils The other Exceptions against Judicial Forms and what was intended concerning the other Competitor-Judges I am enforced to break off abruptly by Disturbances at the Press Lib. II. Of the Judg of Marriage Filiation Aliment and Succession CHAP. I. Of the Five Competitors to be Judges of Marriage Filiation Aliment and Succession 1. The Bishop 2. The Magistrate 3. The Soldiers 4. The Parents 5. The King and Parliament HAving before shewn unanswerable exceptions against the Ecclesiastical Laws by which Bishops pretend to judg I shall now propose exceptions Declinatory of the Authority and Jurisdiction usurped by them and likewise of their Personal disabilities and incapacities to be Judges of the matters in question all which are 1. In reference to the Legislative 2. The Judicial 3. The Executive or Military Power all usurped or abused by them Exceptions against Bishops being Judges in reference to the Legislative They assume to be Judges Jure Divino without a Sign of Mission from God which overthrows the Legislative Power of King and Parliament For they assume to be Angels and Messengers of God Embassadors of Christ and Successors by his last Will and Testament of the whole Power of Judgment given to the Son yet do they shew no sign of Mission from God no letters of Credence from Christ nor any letters of Probat that they were nominated either Executors or Legatees in any such Testament or in the Testament of any Executor or Apostle of Christ or in the Testament of any Executor of such Executors
his Women drew away his heart which word includes both Wives and Concubines it had been more true according to the Original and more probable according to the effect They have falsely translated the Seventh Commandment Lo Tinaph to be Adultery Lo Tinaph Latin'd Non Moechaberis doth only signifie Carnal uncleanness in general but they to make all sins equal Lo Tinaph false translated and that they might take as high Commutation-Money for the meanest as the greatest Crime have translated it Adultery which is Species famosior they say pro Toto Genere as is usual in Tropes and Figures but though if they turn Poets they may Feign if Songsters Descant if Commentators Paraphrase if Orators turn in Tropes and Figures yet if Translators of a Law of God it is wickedness for them to use any of these He who is a Translator of any Law especially of one that is Penal is chained ad idem non ad simile verbum verbo curabit reddere fidus interpres every word is to be render'd in no greater or lesser signification in the Language to which it is translated then it was in the Original for where the Legislator prohibits all uncleanness in general and expresses no special Penalty but only on pain of his displeasure here he hath Power to punish the smaller offences with few stripes and the greater with many according to Justice and Equity but if he prohibit specially Adultery and makes no other Law then he giveth liberty to all uncleanness beside what is not specially prohibited for where there is no Law there is no Transgression As Levit. 20.10 It is said The Adulterer and Adulteress shall surely be put to death which being a Penal Law of death never was nor ought to be extended to any lesser uncleanness then Adultery For it is a Rule in all Justice that no Penal Law ought to be extended by Equity the translation is therefore false which extends all uncleanness to Adultery or Adultery to all uncleanness They have falsely translated 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to be Fornication 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 falsly translated Fornication 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifies Carnal uncleanness only in general but they on the same account of raising their Commutation-Money have translated it the special crime of Fornication which is for the reasons given before of Adultery falsely translated and the same mischiefs ensue thereby They have falsely translated 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the Tenth Commandment to be the Man Servant and Maid-Servant 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 falsely translated Exod. 20.17 They have translated the Tenth Commandment Thou shalt not covet thy Neighbours Wife nor his Man-Servant nor his Maid-Servant Whereas the Septuagint clean varies both in Words and Order and makes the Commandment thus Thou shalt not covet thy Neighbour's Woman thou shalt not covet thy Neighbour's House nor his Field nor his young Man nor his young Woman the Greek words are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 So Amos 2.7 It is said A Man and his Father will go into the samo Young Woman 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 They have falfely translated Mamzer and Nothos Bastard wherein are noted the great Errors of Coke Skene and Grotius by following the Bishops translation and other Popish Writers Having recited many of the other false translations relating to Marriage we are now come to the sowlest of them all relating not only to Marriage but all the dependencies of the same Filiation Aliment and Succession And whom have we the ill fortune first to meet by the blind leaders of the blind fallen into this common Ditch but the two famous Fathers of the Law of England and Scotland Coke and Skene who giving implicit Faith herein to Bishops Translations Certificats and other Popish Writers became so far by them deceived as to leave behind them in their writings as follows First Coke Com. Fol. 243 and 244. saith Bastardus dicitur à Graeco verbo Bassaris id est Meretrix quia procreatur à Meretrice and then he saith Aerd signifies Nature and Bastard signifies base natural Then because Reason is very scarce with him he gets an old Rhime and says Manseribus scortum notho Moechus dedit ortum Vt seges spica sic spurius est ab amica But Skene ingeniously confesseth that Bastardus is a barbarous word and that there can be no reason given for it and certainly he so far speaks most true or else was never a barbarous word if this is not which punisheth the innocent Child before it can speak for the sin of the Parents yet he after falls into the like mistake with Coke which will best appear in his own words as you may find them Skene de verb. signific tit Bastardus Where he saith Bastardus in French Bastard ane Barne unlauchfully gotten out with the band of Marriage quhilk word is barbarous and as I suppose na reason can be given quhairfore it is so called bot Gabriell Palaeotus in his buik de Nothis spuriisque filiis cap. 18. alleadgis it to come fra 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quhilk signifies an Huire or common Woman be reason that Bastards are commonly got and procreat with sick Weemen In Greek he is called Nothus for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifies that part of the Fathers guids and geare quhilk be the Law of the Athenians leasumly micht be given be the Father to his Bastard Son extending to the Son of Mille Drachmae and therefore 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 was called all that was not true or lauchful as writis Budaeus in Pandectas and swa 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 cummis fra 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 privativa particula 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 h. 1. Divinum teste Suida because he wantis that quhilk is godlie and lauchful that is ane honest or lawful Birth or Parentage and swa 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dicitur qui non sit legitimus to the quhilk there is na proper Latine word carespondent as Quintilianus testifie lib. 3. cap. 6. nevertheless he is commonly called Spurius fo in lib. 1. ff de posses contr Tabul Spurii dicuntur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 h. e. statione vel seminatione eaque vaga promiscua ubi doctiores 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 legunt quasisparsim concepti like as they are called vulgo concepti in adoptivis 14. de ritu nuptiarum Likewise Spurius was the the proper name of ane man amangis the Romans as Titus or Caius was written with twa letters S.P. and likewise they quha had na certain Father was designed with the said twa letters S. P. and swa by commoun use and consuetude Spurii dicebantur sine Patre as writes Plutarchus in problematibus because their Father and Mother notcht being lauchfully married they have na certain Father quia Pater dicitur quem legitimae nuptiae demonstrant l. 5. ff de in jus vocand and 't is alike to have na Father and to have incertain
Father as we say He quha will have mony Gods he 's na God Postremo Blundus lib. 8. Romae triumphantis is inquit qui illegitimè natus esset ex Concubina vel scorto contumeliae causa Spurius dicitur cò quòd Sabini muliebre pudendum Sporon appellarunt haec ille in bonesto originis genere in lucem editos infami inhonesta appellatione not are voluerunt Veteres And that part of Weemens Claiths sick as of their Gown and Petticoat quhilk under the Belt and before is open commonly is called the Spare As concerning the Succession of Bastard these short rules are to be observed conform to the Law and Practice of this Realm First That na Bastard nor na Person notch procreat and gotten in lawful Marriage maie ony ways be lauchful Aire or Successor to ony of our Soveraine Lordis Leiges lib. 2. c. in Custodiis 50. for be the Law of God Ismael being Bastard gotten upon ane bound Woman Agar micht not be Aire to Abraham with Isaac Gen. 21.10 Because all right of Succession is by reason of bluid and Consanguinity of the Fathers side quhilk is called Jus Agnationis and theirfar ane Bastard quhais Father is incertain be the Law Kin. is understand be reason of bluid to be sib to na man and nane to him I have done both Coke and Skene right and presented what they say to the full now I hope I may have liberty to do the Truth right against them and if I answer but these two I need trouble the Reader with no more for I shall answer all the Law of the highest repute in Great Britain and with the same stroke overthrow all the Bastard-Law of Lawyers and Bastard-Divinity of Bishops in the three Kingdoms Question The Question is Whether Mamzer in the Old Testament and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the New are falsely translatèd Bastard Coke and Skene whether retained by the Bishops or free appears not but their best endeavours appear as far as they can to defend the charge of falsity of the translation and to prove the same true which they try to do by the ways following 1. By Etymologies 2. By Authority 3. By Rhime 4. By Reason As to Etymologies they derive Bastard from Bassaris which they say signifies Meretrix 1. What is this to the purpose to prove Nothus a Bastard 2. It is denyed that Bassaris signifies Meretrix for Eustathius will have Bassara to signifie Nutrix Bacchi or a Drunken Mad Woman and Bassaris to signifie Vulpecula First They derive Etymologies from Spurius from Aerd from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 privativa particula 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from Sporadene from Sporan from the Spare but what agreement have these in sound or sense with Mamzer or Nothus or what Sequel as to the Question can be deduced from them had it not been as pertinent for them to have recited those ridiculous Etymologies which derive Lepus from Levipes and Lapis from Laedipes and Beere from Be here and Money from My honey and concluded Ergo the Bishops have not falsely translated Mamzer and Nothus for there is no reason why Meretrix may not come from an Hare as well as a Fox loquendum cum Vulgo they call her a light Woman And Solomon Prov. 7.11 saith Her Feet abide not in the House Now she is without now in the streets which she ws she is a Levipes And did not Fabius Maximus shew his shoe to one who askt him why he put away his Wife and say Is it not a fair shoe yet none knows besides my self where it wrings my Foot which shews she is a Laedipes then may she not be as well Drunk and Mad with Beer as with Wine which shews such Women may be derived from the one as well as the other and may she not better be called Meretrix from Money then from Wine for Meretrix dicitur à Merendo from letting her self to hire for Money or Reward and this as well agrees with My honey as Money for Solomon saith Prov. 5.3 The lips of a strange Woman drop as an honey-comb and do not the Poets say That a Bee which makes honey stung Cupid by the Finger while he was stealing it whereof he complained to his Mother and doth not this as well prove that Venus came from Bassaris and that Cupid is in Hebrew Mamzer and in Greek Nothus and that therefore Mamzer and Nothus do signifie Bastard which is to infer quodlibet ex quolibet and conclusions from non sequitur's Behold the fantastick Fundamentals of a Matrimonial Divinity and Law built on Etymologies of sounds and air inveloped in the darkness and Clouds of strange Languages of Hebrew Chaldee Syriack Greek and Latine the like to which if done in English would be derided by the very Boys Secondly The next Argument to make good their bastard-Bastard-Law is Authority Coke to begin fetches an Author out of Goal without an Habeas Corpus to give him Authority to bring him to any Court he calls him Fleet. lib. 1. cap. 5. Next he makes bold with Bracton and the Book of Assizes E. 3. H. 4. H. 6. E. 4. Skene musters up as before mention'd old King Malcomb the Second Paloeotus Budaeus the Pandects all having the unhappiness to be born bred buried and made in the times of the highest Popery and Superstition and though Plutarchus writ excellently against Superstition and was no Papist he was a Pagan Priest of Apollo who was a Devil and his Priest partial in whatsoever tended to Daemonalatry or the great gains accruing thereby to the Diabolical Priesthood Grotius whom I shall after cite as to his Gigantomachia in making all Giants Bastards in his learned Peice de Jure Bell. Pacis wheresoever he comes to touch on Marriage Filiation Aliment and Succession instead of the immutable Law of Nature collects together the old Superstitious Laws Customs and Ceremonies of the Pagans Greeks and Romans and on that sandy Foundation builds Marriage Filiation and Successions on private Pacts and Covenants of Parties or on the publick Pacts or Precepts of human Laws and the Mercenary considerations of Portions Dowries Jointures Morgengabicas Taâ—ls contrary to the Divine ends instituted by God of Marriage All which Authorities or were there numberless more of private Persons or publick States or of Nations Angels Daemons or Men are already shewn to signifie nothing against the least Commandment in the Moral-Law of God Thirdly As to the Rhyming Verses if so great Laws and Nations are no Authority a Poet can be none Pictoribus atque Poetis quidlibet audendi semper fuit aequa Potestas And it shall be further shewn after That if Coke allow but this his own Poet to be Authenteck three words of his two Verses confute him unanswerably Fourthly As to Arguments of Reason Coke hath none at all except Quia Filiatio non potest probari which hath been answer'd before in the Law of the Husband 's Fathering the Wive's
Christian And there are too many who say make me a Bishop and I will be a Protestant So did the Bishop of Spalato in late memory leave Italy while Paul the Fifth was Pope because his Ambition was not so high prefer'd as he desired and fled to England and profess'd himself as Protestant and Preached against the Pope but when the old Pope was dead and his Kinsman got into the Chair being not made a Bishop here he return'd back again to Rome and turn'd Catholick again in hope of great preferment there from his Kinsman but in stead of the same they took him and burnt him for an Apostate There want not likewise in the present time Examples of those who profess'd themselves Protestants till not finding there Ambitious expectations satisfied with Bishopricks and other great places have turned Papists in hope to find the same amongst Them 2. If Frame err not too many have been promoted to their Bishopricks by the Moyne and Recommendations of Great Catholicks whose Creatures they were and how unfit Judges of Marriage Filiation and Succession to Protestant Kingdoms such Bishops must be is left to all true Protestants to consider 10. They Judg by Fictions and not by Truth Grant a Judg but liberty to judg by Fictions he will make what Religion what Law what Equity what Justice he pleaseth he will be the only God to be adored and Judg to be feared He will be like the Pope the only Proprietor of the World and justifie his Title to the Sale of Heaven Earth and Hell The Fictions by which Bishops judg Marriage and the mischiefs which insue by them have been most touch'd before As that Intention of minds and not conjunction of Bodies makes Marriage P. 83. 2. That Sponsa before a Priest in a Temple is Vxor ib. 86. 3. That Verba de Praesenti are Facta de Praeterito Futuro P. 84. 4. That Children begot by Adulterers were begot by the Husband if he was within the Four Seas P. 72 73. 5. That two Persons are Transubstantiated into one by the words of the Priest pronouncing them Man and Wife P. 66 67. c. That a Child is not Sib or Kin or of Consanguinity nor a Child to the Father who begot him or the Mother who bare him P. 14 15. 6. There is another Fiction by which they judg not mention'd before which is Benediction of the Priest for it was an old Superstition nursed in the People by the old Pagan Priests That their Wives should be Barren unless they were bless'd by the Priest Hence the old Arabians were wont to Swear by God and the Bellies of their Wives and Mahomet himself Alchor Cap. 4. P. 47. teacheth the same as a most Sacred Oath and Sterility the greatest Curse to be feared And though Jacob teach That the blessing of Children ought only to be asked and expected from God and not from Man and certainly it were in truth the greatest Idolatry to desire or expect that Blessing from the Priest and were to make him God as appears Benediction of the Priest on Marriage a Fiction Gen. 30.1 And when Rachel saw she bare Jacob no Children Rachel envied her Sister and said unto Jacob give me Children or else I die And Jacob 's anger was kindled against Rachel and said Am I in Gods stead who hath withheld from thee the fruit of the Womb But to infuse the like Superstition into the Hearts of Christians for the increase of his gain Soter Pope of Rome decreed No Marriage should be lawful without the Parties receiving the Benediction of the Priest Plat. Func And by a Decree in France all Children born in Marriages not blessed by a Romish Priest are made incapable to succeed to any Goods of Father and Mother Everard 24. The multitude of Pilgrimages to Saints and Idols that is to say to the Priests who keep them and take the gifts of all they can delude to ask of them the Benediction of Children are known Mr. Stopford Paganopap 111. of this Superstition or Idolatry mentions a noted Example Henry the Third King of France sent a Princely Gift to the Virgin of Loretto viz. a worthy Cup to obtain Issue Male by her Intercession a Gift for substance and work most excellent for the Cup it self is of Hollowed Gem at this day called the Azure Stone 'T is also very big and intermingled with Golden Veins the Cover whereof is of turned Crystal set in Gold and adorned with many excellent Jewels in the top of the Cover an Angel of Gold doth hold in his hand a Lilly of Diamonds the Arms of the Kingdom of France which Lilly doth consist of three Diamonds joined together in Gold with admirable Art the Foot of the Cup being Emerald is bound about and supported with Gold and beautified with Pretious Stones and rich Orient Pearls in the bottom of the Foot the Giver and the Cause of the Gift is engraven in manner following O Queen who by thy worthy Son Didst joyful Blessing bring To all the World Bless with a Son The Kingdom and the King Henry III. King of France and Polonia in the Year of our Salvation MDLXXXIV Certificate of a Bishop false St. Germyn lib. 2.69 raises a Question Whether if the true Heir is certified by the Bishop a Bastard as Ten to One if there happen a Contest between two Heirs but he is whether he that is of Council with the Adverse Party may with good Conscience advise his Client to make Use of this false Certificate of the Bishop in which without any Conscience which he so much pretends he saith he may for these Reasons First because it is a Maxime in the Law That a private mischief shall be suffer'd before a publick Inconvenience and the publick inconvenience would be that if the Certificate of the Bishop should not be final then in this Case if another Writ should be after sent to another Bishop in another Action to certifie whether he were a Bastard or not peradventure that Bishop would certifie that he were a Mulier that is to say lawfully begot and then he should recover as Heir and so he should in one self-Court be taken for Mulier and Bastard for avoiding which contrariety the Law will suffer no more Writs to go forth in that Case and suffers all men to take advantage of the Certificate rather than suffer such a Contradiction which in Law is called an Inconvenience The Second Reason he gives is because the Certificate of the Bishop is the higest kind of Trial that is in the Law in this behalf But with due respect to so grave an Author whose failings are rather to be imputed to the time of Popery wherein he was born and writ than to his Person In answer to his Reasons alledged I say first to the Maxim That 't is better to suffer a private mischief than a publick Inconvenience or which is much like it is better one man perish than the
whole People is to be intended only where the Case is reduced to that necessity that either one or other must be but in this there is no necessity Trial should be by Certificate of a Bishop at all and though uno absurdo dato mille sequuntur were there a Thousand inconveniences followed if the Certificate of a Bishop should be question'd for falsity it being first granted it belongs to him to make Certificates yet there is no necessity that absurdity should be first granted that it should belong to him to make Certificates for there are ways enough wherein no Inconveniences follow of Trial of Truth without Certificates of Bishops 2. The supposition is repugnant and impossible that any Case should happen or be shewn in the World wherein Fiction or Falsity ought to be suffer'd in Judicial proceeding or where Probation ought not by the Law of God to be admitted against such Fiction and Falsity notwithstanding the corrupt practice of Courts to the contrary and such suffering of a private mischief of that kind to a private Person is so far from preventing a publick Inconvenience that it will bring both a private and publick mischief and destroy both for it is as impossible to separate Truth from Justice as the Light from the Sun 3. That which is alledged for an inconvenience to the publick That one Bishop would make a Certificate contrary to another this is no more publick inconvenience than if Thieves should fall out and true men come by their Goods 4. As to what is said That the Certificate of the Bishop is in this Case the highest Trial in the Law we must distinguish the Law for it was then the Law of Popery was Predominant which gave Supremacy in Causes of Marriage Filiation and Succession to the Bishops above Kings and to the Sentences in Bishops Courts and made them above Appeal to the Kings Courts and the Foundation of that their Supremacy was That then by that Law Marriage was a Sacrament and Penance was a Sacrament but the Law being now changed from Popish to Protestant and the Supremacy being now given by the Protestant Law to the King above the Bishop as well in Causes Matrimonial as in all other Ecclesiastical Causes and the Protestant Religion taking away the two Popish Sacraments of Marriage and Penance which were the only Roots whence the Episcopal Jurisdiction of Marriage and the incidents to the same pretended to sprout Cessante Causa ratione legis cessat Lex the pretended Causes of the Jurisdiction ceasing the Jurisdiction it self ceases whereby now the Certificate of the Bishop is so far from being the highest Trial that it ought to be no Trial at all for the Sacraments ceasing the Jurisdiction ceaseth and the Jurisdiction ceasing the Power of Trial ought likewise to cease 5. For Councel to advise his Client to maintain a false Certificate of the Bishops knowing it to be false is as wicked as for the Bishop to make a false Certificate knowing it to be false or which is impossible for him to know to be true as all relating to Filiation are it being their own Rule Filiatio non potest probari except by the Parents wherefore ex Ore Suo they condemn themselves of false Judgment and are not therefore fit to be Judges 11. They Judg by Ceremonies and not by Circumstances As to the word Ceremonia some will have it derived à Cerere because they used divers Formalities in the Worship of the Goddess Ceres But this is not proper seeing all the Heathen Gods and Goddesses had as many Formalities in their Worship as she others derive it from Cerete a Latine Town whither as saith Valerius Maximus the Flamen Quirinalis and the Vestal Virgins fled with their Trinkets while the Gauls besieged Rome others derive it à Cereis from Torches and Tapers lighted made of Wax which amongst the old Pagans was a great Ceremony used in the Temples of their Gods and at their Marriages but this is likewise improper and only figurative to take species famosior pro toto genere and not natural so it appears the Etymology of it is either unknown or it is it self an Original not derived from any Rites which is a word usually joined with Ceremonies and much of the same Signification some will have derived à Ritualibus now the Rituales were old Magical and Superstitious Books of the Hetruscan Priests by help of which they either conjur'd their Gods or made the People believe so and they had all the Formalities written in them which were to be used at making Marriages at laying the Foundations of a City and how Altars Temples and Houses were to be Consecrated and how their Courts of Justice and Counties and Hundreds were to be divided for in all these the old Pagans used to Consult their Augurs Aruspices Bishops and Priests and were like our Books of Ecclesiastical Canons But it seems rather these ritual Books had their names derived from the Rites whereof they were made a written Collection and not the Rites from the Rituals and so Rites as well as Ceremonies may be words which none knows whence they came or whether they will But to come from the Etymology of the word Ceremony to the thing usually signified by it and the difference between a Ceremony and a Circumstance it seems A Ceremony is an Act accessary joined to a Principal not affecting the Principal Act with Good or Evil by the Law of God A Circumstance is an Act accessary joined with a Principal affecting the same Principal Act with Good or Evil by the Law of God Ceremonies are infinite but Circumstances are usually drawn to Seven Heads 1. The Cause of doing the Act which is divided into four kinds The Efficient Final Material Formal and these again subdivided into others 2. The Person by or with whom the Act was done 3. The Place where it was done 4. The Time when it was done 5. The Quantity continued or discrete 6. The Quality which is manifold 7. The Seventh and last Circumstance is the Event of the Act the Civilians expound very improperly and instance whether the Act is done by Fear Force Error Deceit Fault Chance or the like for how can these which are precedent Causes of the Act and therefore ought to be refer'd to the Cirstumstance of the Causes be said to be the Event of an Act which is always subsequent and not precedent to the Principal Act and in that sense is always used by the best Latinists as Cicero in Rhetor. Things are often judged from the Event than which there is nothing more unjust and the Poets agree in the same Careat Successibus opto Quisquis ab Eventu facta notanda putat Eventus Belli incertus wherein it is used for the Fortune and Success following the Battel and not the Fortune or Chance which began or occasion'd it So the Common Law in punishing the Event as the death of any Man within a Day or
Year after his being wounded or beaten punisheth only the Event of an unlawful Act of wounding or beating not of lawful which Event is subsequent and not preceding to the Act. So likewise the Scripture useth the word Event for what follows and not for what precedes as Eccles 2.14 One Event happeneth to them all And Eccles 9.2 There is one Event to the Righteous and to the Wicked And Verse 11. Ireturned and saw under the Sun that the Race is not to the Swift nor the Battel to the Strong neither yet Bread to the Wise nor Riches to men of Vnderstanding nor yet Favour to men of Skill but Time and Chance happeneth to them all Man purposeth but God disposeth Events are only in the Power of God Ceremonies and Circumstances in this agree 1. That they are both accessary and not the Principal Acts. 2. That when single they may be neither good nor evil but when join'd with another Act they may become either good or evil 3. They may be in some junctures each the Principal and in other the accessary Act. 4. In some junctures each may be good in other evil and in a third neither good nor evil that is neither be Ceremonies nor Circumstances 5. In this Ceremonies and Circumstances agree that they have been used and abused in all Affairs and Acts both Civil Military and Religious but I shall here only insist on such Ceremonies as have been abused and compel'd by Pagan and Episcopal Canons in relation to Marriage Ceremonies and Circumstances in this differ 1. Ceremonies and Circumstances differ That Marriage and other Acts are impossible to be done without Circumstances but the same is possible to be done without Ceremonies 2. Ceremonies are always Acts external and made the objects of the external Senses of Witnesses and are of no Use in Marriage but the gains of the Priest where Witnesses are unlawful as in Carnal knowledg or impossible as in Filiation as is already proved P. 104 105. But Circumstances of Marriage may be both external or internal and invisible External as Youth Age Sexes Health Sickness Plurality Unity Internal and Invisible as Religion Conscience Vertue Vice Love Hatred and the like Ceremonies make Acts gawdy which they call decent or deformed before men but Circumstances only make them so before God 3. All Ceremonials are Artificial and not Natural but Circumstances may be both Artificial and Natural 4. No Ceremonies in Marriage are Commanded or Prohibited in the Moral Law of God but many Circumstances are Commanded and many Prohibited in the same Moral Law 5. God is the Author of all Natural and Moral Circumstances which make Marriage lawful or unlawful but the Devil is the Author of Ceremonies where is no Miracle or sign of Mission from God And it hath been before shewn the compulsion to Ceremonies of Marriage came from Daemons and Priests of Priapus and Venus and such as judg Marriage by such Ceremonies come not from God 6. Ceremony is a matter of Formality in Judgment but Circumstance if any is the matter of Substance To conclude it is a thing so absurd to judg by Ceremonies above Circumstances and by Formalities above Substance that never any Lawyer was so shameless to maintain in writing or lay any such Principle in judicial Proceâ—dings to be equal though by the Corruption of Practice not only in Marriage but in all things else The Truth and Substance of Religion and Justice hath been utterly lost and destroyed in an heap of Ceremonies and Formalities invented only for the gains of such Judges as would for that end with such Empty-nothings pretend to wâ—igh Right and Wrong For the Law of man can not make any Ceremony or other matter to be Substance which the Law of God and Nature hath made an Accident or make that Moral which God hath made to be only Ceremonial or make that Act Good or Evil in it self or to affect anoâ—her Act with Good or Evil for to make Moral Good or Evil or a Law for it belongs only to Supream Power Isa 45 7. I form the Light and create Darkness I make Peace and create Evil. Otherwise he were not Legislator of the World Of the manifold Mischiefs which insue by Compulsion to Marry by the particular Ceremonies of a Priest or a Temple It is not here affirmed That 't is unlawful to Marry by a Priest or in a Temple but it is only affirmed That 't is unlawful to compel any so to do by Penalties and especially by so unjust Penalties as is done by the Popish and Eplsâ—opal Canons of making Marriages Null or illegitimating the Children and that 't is unlawful for Bishops to judg Marriages Null or make Certificates of Ne unques accouple in Loyal Matrimony concerning the Parents or of illegitimation of the Child for no other cause than the omission or defect of so frivolous a Ceremony as a Priest or a Temple and that such affirmance is not without cause may appear from the manifold mischiefs which follow Compulsion of the same 1. It compels to enter into an indissoluble Obligation before the Parties can know each other whether they are fit for Marriage or no. Mischiefs of Verbal Espousals before Real Knowledg Proh Deum aâ—que hominum fidem quae haec contumelia est uxorem decrevit sese darâ— mihi hodie nonne oporâ—et prascisse me ante nonne Communicatam oportuiâ— Ter. And. 1. Act. Scen. 5. Oh the Faith of Gods and Men what a scorn is this He hath Decreed to put a Wife upon me to Day should I not first know her should I not first talk with her This Custom of Verbal Precontracts was in ancient time much used amongst the Jews and Marriage delayed a long time after as Jacob's was with Rachel for Seven Years But the later Rabbles finding many great inconveniences in the same injoined if it were at all the same should be a very little while before the Marriage In like manner the Armenians who are of the Greek Church Contract and Espouse together their Children at two or three Years old yea often times the Mothers agree a Marriage between their Children if one happen to be a Male and the other a Female while they are in their Bellies Tavernier Woman deluded This Custom of Precontracts and Espousals is likewise used though not between Children so young as with the Armenians by the Canon Law and most wickedly allowed to be a sufficient Cause of Nulling a Marriage Consummate by Carnal knowledg and Birth of a Child and illegitimation of the same Child of an innocent Person altogether ignorant of such Precontracts Vid. plus of Precontract before P. 88 94 95 c. 1. The inconveniences of Precontracts and Espousals is that when Contracted the one especially the Man delays and deludes the other so long that one chief end of Marriage which is prevention of Fornication is defeated and many times Women are kept along with Promises all their life time and the Man in
them durst adventure seeing Bajezet was of a furious Nature and in his Anger dangerous to be spoken with to mediate in their behalf no not Alis Bassa Charadin Bassa's Son whom of all men he favour'd most There was at that time in the Court an Aethiopian Jester who under some Covert pleasant Jest would often times bolt out to the King in his greatest heat what his gravest Councellors durst not speak to him in secret This Jester Alis Bassa requested to devise some means to entreat the angry King in behalf of these Judges promising to give him what he would desire if he could appease the Kings displeasure The Aethiopian without fear undertook the matter and presently put on his Head a rich Hat all wrought over with Gold and accoutred in all other his Cloths suitably presented himself before the King with a great counterfeit Gravity whereat Bajazet marveling asked him the cause why he was so Gay I have a Request unto your Majesty said he and wish to find favour in your sight Bajazet more desirous than before to know the matter asked what his Request was If it stand with your pleasure said the Aethiopian I would fain go as your Ambassador to the Empeperor of Constantinople in hope whereof I have put my self in this readiness To what purpose wouldst thou go said Bajazet To crave of the Emperor some Forty or Fifty of his old grave Monks and Friers to bring with me hither to the Court. And what should they do here said Bajazet I would have them placed said the Jester in the rooms of the old doteing Judges whom you intend as I hear to put to death Why said Bajazet I can place others of my own People who are better in their rooms True said the Aethiopian for Gravity of Look and Countenance and so would the old Monks and Friers serve as well but not so learned in the Laws and Customs of your Kingdom as are those in your displeasure If they are Learned why do they then contrary to their Learning pervert Justice and take Bribes There is a good reason for that too said the Jester What reason said the King That can he that there standeth by tell better than I said the Jester pointing to Alis Bassa who forthwith commanded by Bajazet to give the reason with great Reverence first done shewed that those Judges so in displeasure were not conveniently provided for and were therefore enforced many times for their necessary maintenance to take Rewards where they could get them to the staying of the due course of Justice which Bajazet understanding to be true commanded Alis Bassa to appoint them convenient stipends for their maintenance and forthwith granted their Pardon Whereupon the Bassa set down Order That of every matter in Suit exceeding One Thousand Aspers the Judges should have Twenty Aspers which Fees they yet take to this day Whence may be Observed 1. That to place Judges in Courts to undergo the incessant labours of hearing multitudes of Causes and not to allow them honourable maintenance is the ready way to make men of ordinary Principles Freebooters and to take the Prey for themselves So the meanness of the Salary in Russia being but an Hundred Marks per Annum makes the Judges extream Extortious on the People 2. That those who buy either Judicial or Ministerial places in Judicatories must sell again and the sale of either is contrary to the Law of God and of infinite Damage to the Publick turning the weights of Justice to the false weights of Merchandize as says the Poet Ergo Judicium nihil est nisi publica Merces Quid faciunt leges ubi sola Pecunia Regnat 3. That the Basha when he was appointed to provide the Judges maintenance by stipend providing the same by Fees made them worse then before and gave them a pretence to take Bribes of the People under the name of Fees and there are none more corrupt Judges for Bribery than the Turks to this day and well they may if they take Fees Neither Judg nor Minister to take Fees but Salary It was the Ancient Law of England that none having any Office concerning the Administration of Justice should take any Fee or Reward of any Subject for the doing of his Office Coke 2. part 176. and by the Statute Westm 1. cap. 25. neither Judicial nor Ministerial Officer as Sheriff Escheator Coroner Bailiff Gaoler Clerk of the Market Aulnager nor other inferior Minister or Officer of the King whose Offices do any way concern the Administration or Execution of Justice or the common good of the Subject or the Kings Service but shall be paid of what they receive from the King on pain the Offender against this Act shall pay double Damages of the Plaintiff and shall be otherwise punish'd at the Will of the King Marrying for Fees contrary to the Laws of God and of the Land By which appears that the Episcopal Judging of Marriage Filiation Aliment and Succession for Fees and the granting of Licenses of Marriage by Bishops and taking of Fees by a Priest for Banns or Marriage of any Persons in a Temple or elsewhere is wicked abominable and contrary to the Laws of God and Fundamental Laws of the Land and they ought to be punish'd for doing the same and had not Bishops corrupted the true Doctrine of Gods Ordinance of Marriage to obtain Fees and other covetous and ambitious Ends Men had at this day Married according to the Moral Law of God and not the Ceremonial Laws of Priapus and Venus The Inconveniences which ensue Judges and Ministers taking Fees are 1. As Coke saith 2 part 210. When neither Judges or Ministers had any Fees then had they no colour to exact any thing of the Subject who knew they ought to take nothing at all of them they being maintained by Salary from the King but when some Acts of Parliament changing the Rules of the Common Law gave to the Ministers of the King Fees in some particular Cases to be taken of the Subject whereas before all their Office was done without taking now no Office at all is done without taking and a gap being once open'd there was after no bounds to the breach so it causeth Oppression 2. It causeth corruption of Justice for if a Judg take Fees it is from the Plaintiff and Defendant and he will sell Justice to him who gives him the greatest but if he take a Salary he takes it from the Publick and will be for the Publick good and not partial to the Parties 3. The Publick by giving the Salary and receiving the Fees increases the Publick Treasury for the vast Income of Fees far exceeding the Merits of the Judges and Officers it is just the overplus should be applied to discharge Publick Burdens and not to fill private Pockets and what was unequally shared amongst Officers ignorant and idle by way of Fees The English in Scotland turn'd all the Fees of Courts into
Pernitiosa not to preserve Children but to destroy them and not only those of Subjects but of their Prince though not captived in War yet exiled by War No Digression to father on Bishops the Fictions and Preposterations of Common Law as well as Spiritual Judges by which it was impossible to use the Episcopal Ceremonies of Common Prayer-Books in Marriage or without danger of his Life to Marry otherwise than by the Moral Law of God And let it not seem here a Digression that I am enforced to Father on Romish Bishops not only all the pernitious Fictions and Preposterations in Judicial Proceedings of Spiritual but likewise of Temporal Courts and to make it part of the Exception against them That they are not fit Judges of Marriage Filiation Aliment and Succession 1. Because Romish Bishops as is already shewn were the Formers of all the Common Law Writs in the Register and Forms of Judicial Proceedings in the Book of Entries and the Compile of the Common Laws was trusted to Britton a Bishop as well as the Forms of the Citations Libells Litiscontestations Compurgations Excommunications and Provincial Laws and Canons were to other Bishops and the Bishops have been the chief Judges in the Common Law Courts of Westminster and Chancellors in the Chancery and have rid the Circuit with the Earls in the Countries and after them with the Sheriffs which Earls and other Lay-Judges in time of Popery were only Assessors or Executioners of the Sentence of the Bishop and he only the pretended infallible Oracle both of Law and Gospel to Judg how he pleased 2. Because what is a good exception against a Common Law Judg is a good exception against a Spiritual Judg and what Fiction is a good exception against Succession by the Verdict of the Jury is a good exception against Succession by the Certificate of a Bishop 3. Because by a kind of Conspiracy between the Spiritual and Common Law Courts in time of Popery their Preposterations Fictions and Formalities are so complex'd and intangled one with another that 't is impossible to divide them or carry on a perfect Discourse of one without the other or of Preposteration without Fiction and Formality the one being commonly cause of the other 4. It is necessary to prevent any Excuse the Spiritual Judg may pretend if he should say The Common Law Judg is suffer'd to Summon and Arrest before Copy to Copy before Oath of Calumny and to use Hundreds of Fictions and Falsities in his Judicial Proceedings and why should not the Spiritual Judg be allowed as well as he but where they are both censured they can neither recriminate And how guilty they both are of nursing that viperous brood of the old Serpent who have eaten through the Bowels of Justice may appear by the particulars following The Subpoena in Chancery is a Writ or Summons formed by the Bishops themselves when Chancellors wherein notwithstanding the Holy Catholick Fathers formed as many Lies as Lines 1. It begins as West hath it Proceeding in Chancery p. 183. Jacobus Dei gratia Angliae Scotiae Franciae Hiberniae Rex Fidei Defensor Fictions and Falsities fomented in all Forms of Judicial Proceedings Subpana's full of Fictions c. A. C. salutem Quibusdam certis de causis coram nobis in Cancel ' nostra propositis This is not true for though here and in other Nations anciently Princes sat in their Courts of Judicature in Person 't is not so now neither are any Causes proposed coram nobis before the King in Person unless as some presume they will attribute the incomprehensible Attribute of Omnipresence to Humanity neither is it sufficient to reply that he is present there by his Delegate for a Delegate is only where the Prince is absent or will not himself receive the Complaint which is signified by the words of Absalom 2 Sam. 15.3 See thy matters are good and right for there is no man deputed of the King to hear thee Intimating if there had been a Judg Deputed he needed not fear the Kings presence to have his matters so severely weighed as if he had Judged in Person And we see to avoid the Fiction of Human Omnipresence in an Action of Debt returnable in the Common Pleas where the King sat not in Person but Judged by Delegates the Sheriff is commanded Sum ' per bonos Sum ' praedictum A quod sit coram Justitiariis nostris apud Westmonasterium and if it had been Coram Nobis it would have been a Fiction but that which makes the Certis de Causis coram nobis in Cancel ' nostra propositis not only a Fiction but a gross Falsity is that the Complainant hath taken out his Subpoena before he hath any Bill presented either to the King in Person or the Chancellor or the meanest Clerk in the Court It goes on and say Tibi praecipimus firmiter injungentes quod omnibus aliis praetermissis excusatione quacunque cessante Yet ought the Defendant to be admitted to offer a lawful cause of Excuse or Essoin Next it says In propria persona tua yet may the Defendant be admitted to appear by Attorney Next Sis coram nobis in dicta Canc ' nostra à die Paschae proxim ' futu◠' in unum Mensem Yet to appear Quarto die post the Return-day is sufficient then ubicunque tunc fuerit ad respond ' super his quae objicientur an Objection cannot be unless there is some allegation first put in by the Defendant any more than an Answer can before some Bill put in by the Plaintiff here is therefore a double Falsity and the Poor Countrey man is fool'd to ride up an Hundred Miles when he never put in a Bill himself to be objected against nor when he with much labour is got to Town weary quarto die post is there any Bill put in against him by the Complainant for him to Answer Then it is further said Et ad faciend ' ulterius recipiend ' quod Curia nostra consideraverit in hac parte yet had neither Party Plaintiff or Defendant a Bill or Answer in Court how can it then be said In hac parte where there is no Party Et hoc Sub poena Centum librarum nullatenus omittatis This is likewise a Menacing Fiction the Chancellor having no Power to impose any Fine or Forfeiture on any Subject of a Farthing Et habeas ibi hoc breve Teste meipso apud Westmonasterium when the King is a Hundred Miles off Westminster 12 die Febr. Anno Regui Domini c. George c. But if the Defendant is a Noble-man then no Subpoena is awarded but a Letter by the Lord Chancellor or Lord-Keeper thus A Note of the Fictions of the Episcopal Form of the Letter in Chancery usually sent to a Noble-man instead of a Subpoena to Answer The Superscription is which first comes to be read and is directed thus To my very good Lord I. L. D. These This
he ought to be punish'd in One Hundred Pounds to the King and Imprisonment one Year without Bail and One Hundred Pounds more to the Knight injured thereby or to any other Person who in his default will Sue for the same and is contrary to the two said standing Acts of Parliament of greater consequence than Magna Charta or the Petition of Right themselves for if there is a Protestant Parliament no doubt they will make and we shall not want Protestant Laws but if once there get in a Papist Parliament both Protestant Laws Religion and Protestants themselves will be all destroyed And as the Sheriff Returns Fictions to Courts so do they send Fictions to him and it is hard for him to know when they speak true and when false as if a Venire Facias be sent him to Return 12 Jurors he must Return 24 which is double the number or he shall be Fined for as they write their words in the Venire by halves so do they as it seems their Meaning by halves yet the poor Sheriff is bound to understand them to his Cost then if they send him a Pone per Vadios Salvos plegios the Sheriff must Return no other Plegii to answer their Fiction than his own Fiction of Plegii John Den and Richard Fen or they will teach the Party to have a false Imprisonment against him Suits are removed when the Plaintiff hath been at all the Cost and trouble and is ready for a Trial on meer vexation and to delay on Suggestion or Fiction of a Cause without any Oath of Calumny Attachments and Arrest of Goods and Persons is used in the City without any Oblatio Libelli or Oath of Calumny on meer Fictions and Suggestions City Law 22. but very wrongfully for a Citizen hath as good Right to Magna Charta as he hath to the Charter of the City and under the name of being free of the City doth not lose the liberty of a Subject to be free from Arrest before Judgment Coke Vind. Law 26. says Abuses of Fictions to Arrest before Judgment This brings to my remembrance how a Gentleman was Arrested for 1500 l. the same day that he was to have been Married without any colourable cause of Action spitefully to hinder his Match and was not able to give Bail but the Party being Non-suit the Gentleman notwithstanding could recover as I remember no more than 7 s. 2 d. Cost yet he lost his Monies and indeed himself by it for I know it was the occasion of his utter Undoing and a man that is Cannibally given may devour the Credit of 500 men Arresting them for 5000 l. a piece never declare yet pay no Cost though Party Arrested had better have paid 500 l. and this is so usual that 't is commonly said I 'le bestow a Bill of Middlesex on such a man to stay him in Town that I may have his company into the Countrey when I go down And I my self was informed by a Sea-Captain who was a Sufferer in such an Arrest That there happen'd to be two Merchants in London each of which designed a Voyage to the same Port of Barbary whether he who could arrive first was assured he should to his great gain obtain the Prime of the Market to which purpose they both strove with all diligence possible which should be foremost at the Spring and it happen'd that he who had his Ship first ready had entertained this Captain of my acquaintance to command her for him and all being ready to set Sail the Captain would needs walk into the City to take his parting Cup and Farewell of his Friends where unexpectedly he was Arrested for 5000 l. though not owing a farthing and the same being a Choak-Bail-Sum he knew he should get none to be Surety for him and thereupon sent to his Merchant to inform him how he was boarded before he could get aboard who being much troubled that his Captain was taken by a Land Pyrat repaired to him and understanding from him that he did not owe the Party at whose Suit he was Arrested a farthing and knowing withal that it was done by the Spite of the other Merchant to stop his Ship from getting before him he gave Bail for his Captain and sent him immediately on the Voiage All which Mischiefs happen because there is no Law to compel to give a Copy of the Declaration and Oath of Calumny before Arrest by which all Fictions are prevented All the Judicial Transactions of Fines and Recoveries are Fictions Fictions of Fines and Recoveries so though we have fled from Land to Sea and back again from Sea to Land we know not where to find Rest for the Sole of our Foot from Fictions We are next come to another horrible cause of their Increase which is that no Averment or Probation to the contrary is admitted against the Sheriff or the Clerk nor the Returns or Records how Records which are nothing but the Scribling of Clerks in false Latine and Court-hand for their Fees come to be of higher Authority than the Scripture it self is strange for it was never denied except against Mahomets Alchoran but Averment and contrary Probation might be brought against the false Copying false Translating or false Printing of any word or Clause in the Scripture or it would be very difficult to overthrow Popery What greater reason is there of so many Forgeries of Clerks but that there is no Averment allowed against their Records nor contrary Probation whereby they may for Money insert what Fictions and Falsities they please Estopples are another mischievous cause and the denial of liberty of Travers as bad or worse than the other Turpia quid referam vanae mendacia Linguae I am weary and ashamed to recite so much reflecting so deeply on the Honourable and necessary Profession of the Law Pudet haec opprobria nobis Et dici potuisse non potuisse refelli But all this may be easily taken away of Fictions and Falsities if so small a matter of Form were but alter'd as to give liberty to Traverse all is false and to cause the Plaintiffs and Defendants to give Copies of their Declarations and Pleas and to give their Oath of Calumny to them for I saw it by experience in Scotland which I must acknowledg and testifie to the Honour of their Form of Judicial Proceedings That I could never for the space of Six Years observe the least Fiction in the same which I can attribute to no other cause than the wise and just Act of Parliament concerning the Oath of Calumny Jac. 1. P. 9. C. 125. and the present Practice accordingly which Act being short I have transcribed That Advocates and Fore-speakers in Temporal Courts sall Sweare THrow the consent of the hail Parliament it is Statute and Ordained That Advocates and Fore-speakers in Temporal Courts and alswa the Parties that they plead for gif they be present in all Causes in the beginning or
he be heard in the Cause he sall Swear that the Cause he Trowis is gud and leill that he sall Plead and gif the Principal Party be absent the Advocate sall Swear in the Saule of him after as is conteyned in thir meters Illud juretur quod Lis sibi justa videtur Et si quaeretur verum non insicietur Nil promittetur nec falsa probatio detur Vt Lis tardetur dilatio nulla petetur Of Judgment before Hearing Part of a Satyr translated out of Seneca page 685. on the Sottish Emperour Claudius who used to Sentence before Hearing Deflete virum Quo non alius Potuit citius Discere Causas Vna tantum Parte audita Saepe nutra Quis nunc Judex Toto lites Audiet Anno Tibi jam cedit Sede relicta Qui dat populo Jura Silenti Cretaea tenens Oppida Centum Cedite moestis Pectora palmis O Causidici Venale genus Vosque poetae Lugete novi Vosque in primis Qui concusso Magna parastis Lucra fritillo Weep for the Man All ye who can Then whom none would Or sooner could A Cause right catch Or it dispatch Though part but one He heard or none A Judg alas Is now an Ass He cannot hear In a whole Year Or end a Suit There 's such Dispute To thee give place Minos his Grace Though he hath Men And Ten times Ten Cities in Creete Who do him greete And with his Laws The silent aws Goblins and Ghosts With all their Hosts Oh Saleable Lawyers now Yell And likewise you Ye Poets new And you whose pains For easie Gains Causes to hast The Dice did cast It is further mention'd that when Claudius for this kind of Justice was Arrested in Hell on a Latitat and many complaints were there made against him by those who were injured thereby he desired he might be heard to answer for himself and espying there P. Petronius who had been his Creature while above ground he humbly requested Aeacus who was the Judg that Petronius might be of his Councel and plead his Cause for him Petronius having been used to the Trade while alive very readily Venit Defendit Vim injuriam quando but Aeacus sharply forbid him to speak being clear of opinion that Claudius who had condemned so many before Hearing ought in Justice to suffer the Talio and be himself so condemned he therefore to as many complainants as desired it gave liberty to lay more Arrests and more Bilbo's on him before Judgment and to as many as desired Judgments gave them as many as they would have before Hearing and to Execute as many punishments as they would against which he strugled much to have been heard to answer for himself yet they thrust such a Gag into his mouth that he was enforced to suffer many Judgments to pass against him on a Nihil Dicit Now though a feigned Aeacus is to be derided yet there is a Judg of the World who will not be mocked and though there are many forward enough to condemn Claudius yet may there too many if they will but inspect their own Forms of Judicial Proceeding find themselves guilty of as great if not worse Vices in their Judicatories than he An Enumeration of divers Forms of Judicial Proceeding whereby the People are Condemn'd and Judgment pass'd against them before Hearing The First is When Men are repell'd from shewing the Truth and Merit of their Cause and compellâ—d to make their Allegations in Formalities and Fictions A Dispute between two Judges concerning Formality and Truth in Judicial Proceeding The point of Formality in Judicial Proceedings is very well Disputed by two famous Judges Fitzherbert and Brook 14. H. 8.25 b. Where the Case was this In an Action of Debt brought on an Obligation indorsed with a Condition to perform all Covenants in an Indenture between the Defendant and Plaintiff which Indenture contained Four Covenants One whereof was That a stranger should be Clerk to the Sheriff who was then Plaintiff and also that the stranger should pay at the Profers Seventeen Pounds at such a Feast and Thirty Pounds more at such a Feast and other Covenants which he Recites and saith further That he was a Lay-man and not Letter'd and that the Indenture was read to him concerning no more than the two first Covenants and no other which two he had paid and performed and so damands Judgment Si Actio and says not Et sic non est factum on which Plea the Sergeants demur'd in Law Fitzherbert I conceive this a good Plea for by the Law a man is Compellable to no more than only to shew the matter of his Case in Truth and good Sentence and if the Parties in their shewing cannot agree then to join Issue upon the matter of Fact on which they differ and put it on Trial of the Jury and then the Judg on the Truth of the matter of Fact found shall adjudg what is the Law and here it seems the Defendant hath shewn in Truth and good Sentence for he hath shewn he was a Lay-man and not Letter'd and that only two of the Covenants in the Indenture were read unto him and no more and I think he is only bound to perform what was read to him and so the Obligation to be good for the same and void for the Residue which was not read and I find it adjudged 47. E. 3. where one was bound to an ignorant Lay-man who was not Letter'd in an Hundred Pounds to be paid at several days of payment and at the first day the Obligor made due payment for what was then to be paid and the Obligee made him an Acquittance of the first Sum and in the end of the Acquittance was added a general Release and of this only that part was read to the Obligee which was an Acquittance of the first Sum but the part which mention'd a general Release was not read and this matter was pleaded in an Action of Debt after brought against the Obligor and it made the Acquittance which was read good and the Release which was not read void and so the Deed was adjudged good for part and void for part and it would be a great Mischief if it should be otherwise for in the same Case if the Deed should be void in whole then the Obligor should lose all the Money he paid and if it should be good in the whole then the Obligee should lose his Obligation which were unreasonable that any man should be deceived by his Ignorance of the Fact though he may by his Ignorance of the Law And here the Defendant being bound to perform two of the Conditions in the Indenture which were read to him he cannot plead non est factum for that would be a Lie and contrary to the Truth of his own confession therefore seeing he hath pleaded the Truth in good Order and good Sentence and concludes Judgment Si Actio I think he cannot plead or conclude in any
better Form And Brudnell agreed with Fitzheabert Brook Ch. Justice I conceive the contrary and that the conclusion is not good And Sir as to what is said that the Law is no other but that a man shall Declare his matter in Truth and good Sentence the Law is more than so for without Formality the same is nothing worth as the Form of Law is a man shall shew his matter without Duplicity of Multiplicity yet may matters more than one be True and in good Sentence but they want Formality and therefore are nothing worth and a Form ought to be used or otherwise all things will be in confusion So in Trespass the Defendant ought to give a colour of Right to the Plaintiff yet the colour is not true nor the Sentence the better but it is the Formality which is required and Formality is the chiefest thing in our Law and though the matter in the present Plea appears in Truth and good Sentence yet here wants Formality for he ought here to have concluded not Judgment Si Actio but Sic non est facium for I conceive in regard only two Convenants of the Indenture were read to him and there were more Covenants not read that the whole Indenture is void and it is Fraud in the Obligee And Pollard agreed with Brook that it was no good Plea and that the whole Indenture was void But to this Fitzherbert and Brudnell might have repli'd that admit the whole Indenture had been all void in Law for the Fraud in part and the Defendant might Rigore Juris Plead it yet Quilibet potest Renunciare juri pro se introducio if the Defendant was more merciful than the Law and his Conscience would not suffer him to use Summum jus but doth assent to perform those Covenants were read to him is it therefore Reason or Conscience that the Plaintiff for his good Nature and Courtesie should return him Evil for Good and put the Burden of all the Covenants on him because he would perform any when he needed perform none if he would have pleaded in a Form against his Conscience and that Truth ought to be prefer'd before Fiction and Formality But I leave the Merits of the Cause to others to Censure and shall only upon the whole Dispute take thâ—se Observations 1. It appears by the Case that there are but Four Judges in the Court and they are divided Two against Two Fitzherbert and Brudnell for Truth against Fiction and Substance against Formality and Block and Pelâ—ard for Fiction against Truth and Formality against Substance whence is shown that there have been and are many good men Judges and other Professors of the Law who with all their their Power Desire and long to remove those Abuses of Fictions Forms and other Irregularities which are Reproaches on the Practicers but should they afflict themselves to death can do nothing if equipoised or overpoised by the other Party therefore they ought not to be imputed to those who are not guilty but the consideration of them ought to be left to the Legislative which hath Power to Redress them when they please with a word and shall give account to God if they neglect the same 2. It may be observed how many Contentions arise about a petty piece of Formality when there is none about the Substance which is acknowledged by Coke himself Com. Lit. 303. whose words are these When I diligently consider the Course of our Books of Years and Terms from the beginning of the Reign of Ed. the Third I observe that more Jangling and Questions arise upon the manner of Pleading and Exceptions to Form than upon the matter it self and infinite Causes lost or delayed for want of good Pleading by which he means Formality hath destroyed infinite good Causes which is a most horrible thing to be Tolerated in any Government 3. The next thing observeable is The great Ignorance of Courâ—s themselves in their own Formalities for they have continued by Coke's confession Jangling and Wrangling about them ever since Edward the Thirds time and are yet never the wiser nor any perfect Form invented or settled by them they are still ever Learning and never come to the knowledg of Truth and so will be to Dooms-day if they are not by God sooner called to Account of their Stewardships and this point of Ignorance in their own Formalities is further confessed by Coke in another place where he saith It were to be wished that Littleton had writ something concerning Pleadings which shews he was but a wisher or woulder at it himself for whom if he had been able it had been far more proper to have writ a perfect Form of Judicial Proceeding than to wish the same had been done by one dead Hundreds of Years before and if he could have had him alive 't is likely he was as much to seck as himself for he could not write any directions concerning it to his own Son though it was a point above all other which he desired he might Learn and in respect of which his Tenures were but Trifles but he is fain to leave it to him as his other Quaeries de Dubiis and a Terra Incognita where he should gâ—t Rich Mines of Gold and Silver if he could light on it in these words And know my Son that it is one of the most Honourable Laudable and Profitable things in our Law to have the Science of well Pleading in Actions Real and Personal and therefore I counsel thee especially to employ thy Courage and Care to learn this Which yet neither he nor any since ever learnt or found out in this Climate neither is it possible for any to do unless those very Forms of Actions and Writs are made only Directive and not Coercive and Liberty given of Commenceing and Disputing Suits on more Solid Foundations of Right than can be laid on any Forms in the World especially on such in which the Courts themselves are Ignorant how to proceed and their so many divided and contrary Opinions in the Expositions of the Law have so intangled the cross Threads of their several Clues of unravell'd Opinions that now no Courts unless they clean break them all to pieces are able ever to get out of their own Labyrinth of Formalities and are most commonly in the pitiful Condition wherein Vigelius Dia. Jur. 477. finds his Judg who is Ignorant of the Forms of Judicial Proceeding At nunc saith he Cum Judex Litiscontestationis adeoque judicandi ratione sit ignarus sedet inter Advocatos Procuratores tanquam Asinus inter simias nescit quando Disputationes in Causa permittendae sunt quando contra sunt inhibendae hinc ne necessarias inhibeat non necessarias permittit Advocatis in infinitum Disputandi Licentiam concedit non Semel sed saepius dilationes Dat easque velex levissima causa But now saith he when a Judg is Ignorant how tostate the Point of the Cause and of the Form of
in the said Chancery-Orders Printed 1669. presumes to do in the Court of Conscience what was never heard of to be done in the Courts of Turks Infidels or the most Barbarous Judicatories in the World for he is not ashamed publickly to give License to Cursitors and their Clerks to commit Crimen Falsi which we call Forgery by Antedating Writs taking them out of Returns past or of a former Term by reason of which Forgery of Writs and Forgery of Returns Antedated Capiases Proclamations Exigends and Outlawries Antedated have been likewise Forged and Thousands of Poor men unjustly cast in Goals and miserably undone without any Summons or Hearing and these are likewise the damnable effects of the Chancellours Writs by which as by others the Plaintiffs so here the Defendants are destroyed without Hearing and certainly these Crimes of Antedating and Forgery of Judicial Acts though here Licensed by Orders of Chancellors and Protected by Courts by not Licensing Averments against them are by the Civil Law and Laws of Scotland and of many other Nations both of these and Instruments Death and even by our own the imbeselling of a Record by a Clerk and Counterfeiting of Fines is Felony and if the second time so is the Forgery of Deeds Writings and Court-Rolls and deservedly the Offender better deserving death than a Robber on a High-way and why any Crimes of this Nature should be publickly Licensed to the Ruin of all Truth and Justice by any Chancellour in his Chancery Orders is very strange the mischievous effects of which said Attachments on Affidavit and Antedating Writs and Forgery of Outlawries are notoriously known and not complained of here without good Cause and Testimony and some particular experience of my own to my loss who have as well as others suffer'd in an high degree by the false Affidavit of a Fellow who Subscribed and Swore it by a false name and not his own and likewise procured a Forged Outlawry antedated against me It belongs not to a Chancellour to be a Judg of Equity in England 5. It belongs not to the Chancellours Office to be a Judg of Equity or to make Orders Edicts Laws or Writs and thereby to Imprison the Persons and dispose of the Lands and Goods of the Subjects Arbitrarily and at his Pleasure Coke 4. part 82. saith That all Statutes which give Authority to the Chancellour to determin Offences in Chancery are to be intended only in the Ordinary Court there which proceeds in Latine and is Secundum Legem c. and not in any Extraordinary Court which proceeds in English Secundum Aequum bonum and 37. H. 6.14 27. H. 8.18 it is Resolved That the Court of Chancery Proceeding by English Bill is no Court of Record and therefore it cannot bind either the State of the Subjects Lands or the Property of his Goods or Chattels and therefore they there admit he may Imprison the Person Chancellour cannot bind the Subject's Goods not Persons which is not only a Non sequitur but a contrary conclusion follows on it for if he cannot bind the Subjects Goods à Fortiori he cannot bind his Person For the Life is more than Meat and the Body is more than Raiment Luke 12.23 And though those Common Law Judge of H. 6. and H. 8. so sordidly deliver'd the Subject Prisoner to the Chancellour so as they might keep his Lands and Goods to themselves yet had they no more Law or Right to do it than they had to deliver him Prisoner to the Turks or to send him to the Barbado's for the Subject is no Slave neither ought he to be given or sold for one without his own Assent by his Representative in Parliament and having so good a Protection against the Chancellours and Common Law Judges and the Orders and Writs of both as Magna Charta and the Petition of Right both for his Lands Goods and Person they ought to shew some greater Laws than their Writs and Orders of Courts or Forgeries of Clerks before they presume to invade either 6. There being no Law in England which ever Ordained a Chancellour to be a Judg of Equity or to make Edicts or Orders concerning the same he can pretend no Title thereto unless from the Laws of France and to that effect Polydor Virgil saith The Chancery came in with the Conquest to which though my Lord Coke saith Perperam Erravit because the Mirror saith The Constitutions of the ancient Kings were that every one should have out of the Chancery of the King a Writ Remedial for his Flaint without difficulty yet he himself seems to be in the Error and not Polydore for though the name of Chancellour and Chancery was before the Conquest and divers other Countries use the name of Chancellour as well as England yet the greatest part of the Writs came from Normandy and are mention'd in their Customary as who will peruse it shall find but as to the Writ of Subpoena Centum librarum and Arbitrary Power of the Chancellour and to be a Judg of Equity came first from the Conquest and was never used before nor did it belong to the Chancellour's Office either of England or Scotland that having other employment and more than a Chancellour could do though he never troubled himself with Judgment but left the same to the Judges to whom the King Delegated the cause by Writ and this the very name of Chancellour testifieth who was Originally no other than a Master of Requests to the Prince whom he served and on Petitions deliver'd to him by the Subjects if unfit to be Granted he strook cross lines over them like Cancelli or Lettices by which he Cancell'd them and thence had his name of the Canceller or Chancellour as Turn lib. 11. advers c. 25. and not according to that Fictitious Verse of his Power Hic est qui Leges Regni Cancellat iniquas For when was ever any Chancellour in England allowed to Cancel any Roll or Act of Parliament And when these Petitions for Justice were deliver'd by the People to this Master of Requests call'd the Canceller of such of them as were Evil such as were Just he Cancelld not but on behalf of the Petitioner Granted the Princes Rescript or Warrant to the Praeses Provinciae where the cause of Action arose or the Defendant lived for Actor Sequitur Forum Rei which Rescript or Warrant we now call a Writ containing in it self 1. A Questus est nobis a short recital of the Complaint 2. Si A. fecerit te securum a taking Security or Pledges of the Plaintiff de Prosequendo 3. A Summoneas or Summons of the Defendant to appear before the Prince himself or such Judges as he Delegated though out of the Province or County where he lived which was the Reason of taking Pledges of the Plaintiff because he made the Defendant appear many times Hundreds of Miles from his Home when he might in those days implead him before the President