Eliz Stowell quatenus de factor fuerunt ad invicem matrimonio ut predicitur copulat ' ab invicem Separand ' divorciand ' fore debere pronunciamus decernimus declaramus Eosque Separamus Divorciamus eisdemque Christopher ' Eliz. licentiam Libertatem ad alia vota convolanda concedimus tribuimus impertimur per hanc Sententiam nostram definitivam sive hoc finale nostrum decretum quam sive quod ferimus promulgamus in hiis Scriptis c. And after the Divorce the said Christopher Kenne Espous'd and took to Wife Elizabeth Beckwith And after Anno 5th Eliz. before certain Commissioners Ecclesiastical the said Elizabeth Beckwith Libelled against the said Christopher Kenne That before the Marriage between them contracted he had Married with Elizabeth Stowell on which process was awarded against Elizabeth Stowell pro interesse And upon due examination of the Cause it was Sentenced That the Marriage between the said Christopher Kenne and Elizabeth Beckwith was lawful and Sentenced them ad Exequenda Conjugalta obsequia c. And that the said Christopher Kenne was never lawfully Espoused unto the said Elizabeth Stowell and after the said Elizabeth Beckwith died after whose death the said Christopher took to Wife the said Florence by whom he had Issue one Daughter and called Elizabeth and died And Anno 36th Eliz. it was found by Office in the County of Sommerset by Force of a Mandamus after the death of the said Christopher Kenne that the said Elizabeth Kenne was his Daughter and Heir who was within Age Viz. of the Age of Ten Months The Queen granted her Wardship to Sir Nicholas Stallenge and the said Florence then his Wife on which the said Martha alledged her self to be Daughter and Heir to the said Christopher Kenne and with her Husband Silvester Williams Exhibited their Bill in the Court of Wards against the said Sir Nicholas and Florence alledging That the said Martha was Daughter and Heir of the Body of the said Elizabeth Stowell his lawful Wife and that they the said Christopher and Elizabeth Stowell at the time of their Marriage in Anno 37. H. 8. were both of them above the Age of Consent and that they Cohabited together Nine or Ten Years before the said supposed Divorce during which Cohabitation the said Martha was procreate between them and therefore pray they may have License to Traverse the said Office To which Bill the said Nicholas and Florence put in their answer and the Plaintiff examined divers Witnesses and before Publication Sir Nicholas dies and thereupon the said Silvester and Martha exhibited a Bill of Reviver against the said Florence and after Martha having Issue Elizabeth the Wife of the now Pl. died after whose death the said Thomas Robertson and Elizabeth his Wife bring a new Bill of Reviver to revive the first Sute in which the Witnesses were examined and this Case was refer'd to Fleming and Coke Chief Justices and Tanfeild Chief Baron and Selverton and Williams Justices and Sing and Altham Barons of the Exchequer If it be asked for what reason was such a Sentence given my Lord Coke nor the rest will neither tie the Bishop nor themselves to shew any for he saith The lawfulness of Marriage belonging originally to be tried in the Ecclesiastical Court if the Ecclesiastical Judg that is the Bishop Sentence a Marriage Null We that is the Judges of the King's Courts ought to give Faith that is implicit Faith to their Sentence as they do to our Judgment whether true or false right or wrong reason or no reason and so he saith Where the original cause of Sute concerning Marriage belongs to the Common Law Courts the Ecclesiastical Judg is to give like Faith to them as 22. E. 4. in Corbets Case which was this Sir Robert Corbet had by Elizabeth his Wife two Sons Robert the Elder and Roger the Younger and dies Robert the Elder being under the Age of Fourteen takes to Wife one Matilda and they dwell together tâ—ll full Age Et habuerunt carnalem copulam cogniti reputati pro viro uxore palam And after the said Robert put off the said Matilda having no Issue by her and Married one Lettice in the life of the said Matilda and hath Issue by her Robert and dies Lettice Preached openly that she was the lawful Wife of Robert and her Son a mulier Roger the Son of Sir Robert Corbet sues in the Spiritual Court to Reverse these Espousals between Robert his Brother and Lettice for which Lettice sues a Prohibition In which Case it was Resolved 1. That if Robert and Matilda had had Issue and had been unjustly Divorced and after Robert had Married Lettice and had Issue and died that as long as the unjust Divorce had continued the Issue of Matilda could have had no remedy at Common Law the same gives so great Faith to the Sentence of the Bishop 2. That here Roger might sue at Common Law notwithstanding the second Marriage in regard the same was void being made while the first Wife lived On which may be noted the injustice of the Bishops being above Appeal in Judgment in these particulars 1. Here is a lawful Matirmony Consummate by the Birth of a Child and two Persons thereby indissolubly joined together by the Act and Law of God put asunder by the Bishop and his Papal Law Here is a Dispute from Generation to Generation concerning the Validity of a Marriage and Succession to an Inheritance Against the Marriage is alledged That the same was declared void by a Sentence of Divorce or rather of Nullity given by the Bishop Against it is answered by Elizabeth a Descendent of the said Marriage and the right Heir to the Inheritance that the cause of the said Sentence was false And she offer'd to prove that the said Christopher Kenne and Elizabeth Stowell were both above the Age of Consent to Marriage in Anno 37. H. 8. and were then lawfully Married and Cohabited together Nine or Ten Years and the said Martha was lawfully Procreate between them before the pretended Divorce was made Was there ever Probation more Relevant tender'd was there ever better Reason alledged by a poor Lady to defend her Inheritance On this Hoskins Bacon Dodridge and other Council Argued so long from Term to Term as was enough to spend a good Portion before it was got But alas to no purpose for had this Elizabeth been Queen Elizabeth her self these Judges will give no Relief or Hearing against a Bishops Sentence unless his Lordship will please to Revoke it himself And notwithstanding all Arguments to the contrary it was accordingly resolved by all the Justices and Barons That she must go without her Inheritance and her Mother Martha remain a Bastard till the Bishop who made her so should again unmake her which was in plain English to adjudg there should be no Appeal in any case of Marriage Filiation Aliment or Succession from the Bishops to
though he was Lord Chief Justice of the Kings-Bench for he saith 4. part 76. In former times some ill disposed Clerks of the Kings-Bench because they could have no Original returned out of Chancery for Debt in that Court they would Sue out an Original Action of Trespass a meer feigned Action returnable in this Court and so proceed to Exigent and when the Defendant appeared the Plaintiff would waive all the former Proceeding and file a Bill against the Defendant for Debt which he saith deserveth severe Punishment according to the Statute of Westm 1. cap. 29. If the Kings-Bench therefore ought not to entertain the Fiction of a Trespass from the Chancery to hook in the Jurisdiction of Debt with it but the Practice ought to be severely punish'd why doth that Court allow it self the Fiction of a Trespass in a Latitat to hook in the Ac etiam Jurisdiction of Debt and not severely punish the same Acts of Parliament eluded by Fictions according to the Censure of their own late famous Chief Justice Coke in a stronger Case when the Fiction comes from the Chancellor under the great Seal it self Or why should a Chief Justice be suffer'd to elude Magna Charta the Petition of Right and all other Fundamental Laws of Liberty and Propriety and starve and rot the Poor Subjects in Prisons on meer Fictions of Latitats more than a Chancellor ought to be when he pleaseth by the Fictions of his Commissions of Rebellion seeing both Latitats and Commissions of Rebellion are both point blank contrary to the Fundamental Laws of Liberty and Propriety Fictions of Summons served Then the Original Summons in the Common-pleas which should by Law issue before the Capias and Outlawry is usually by Fiction of the Clerks taken out as of a former Term and Antedated the Sheriffs Returns upon them forged the Returns of the Exigend and Proclamations forged the Outlawry forged Crimes in Clerks and Attornies which if a Law were published for it deserves death So a Clerk will Outlaw any man in an hour as well as a Twelve-month and this he doth by Fiction and as he calls it of Course and all those Acts of Parliament which have been made or will be made against the secret Stealing out of Outlawries are to no purpose and every Clerk derides and eludes them by Fictions of Course and will do unless all Fictions in all Actions and all Outlawries in Civil Actions are clean taken away root and branch Fictions in Trespass Then for the Action of Trespass 't is full of Fictions it makes a Clausum fregit where there is neither Hedg nor Ditch nor other Inclosure my Lord Coke indeed says There is one in the Eye of the Law but I am sure there is none in the Eye of the Gospâ—â—â— then there is a Fiction of a Vi Armis in the Trespass though a Woman or a Child or a Sheep or a Lamb do it Then a Fiction is made of a Continuando of the Trespass when the Trespasses were all severally committed with intervals between each Trespass then because the Writ-maker will be sure to run as far beyond the Truth as he can he will conclude with the Fiction of Alia enormia ei intulit though the Lamb did nothing there but what was scarce enough to make it a Trespass Fictions of Transitory Actions Fictions in Trovers cat some of the Grass Transitory Actions are Fictions and great Abuses A Trover is properly an Action of the Case which a man may have against another for Finding and detaining from him of his Goods so found as for his Hawk reclaimed with her Bells for his Gold-chain Purse of Money Box of Writings lost and found by another and the Declaration is Bona praedicta casualiter amisit Quae quidem bona Catalla ad manus possessionem praed ' A devenissent yet do they use to bring this Action where there was never any casual loss of the Goods nor finding of them by the Defendant as an Action of Trover may be brought by the Master for Money which a Servant sent with Corn to Sell for him received on Sale of the Corn M. 40 41. Eliz. B. R. Holiday Higs yet here is neither casual losing or finding of the Corn or Money And it may be brought for Twenty Pooks of Corn Tr. 38. Eliz C. B. Price versus Sir Walter Sands yet such Goods standing after Reaping in the same Field where they grew cannot be said to be lost when they are taken away nor found by the Trespassor who took them any more than if he had taken them before Reaping so a Trover is brought for an Hundred Load of Wood and Forty Beech-Trees No. lib. intra 41. S. 33. which quantity cannot be said to be casually lost so they use to bring Trovers for a Cow or an Horse not found but bought bona fide not knowing any other owner but the possessor who sold them and likewise on Goods lent by one to another for which Goods the proper Action is a Detinue but they turn the true Action of Detinue into the false of a Trover for these two Reasons one to deprive a Third Person injustly of his lawful Garnishment and Right of Interpleder the other in this to do what they use to do in the rest that is to say Fictions make Judicial Proceeding unintelligible Fictions in Ejectments to make Judicial Proceedings Nonsense and unintelligible that in so dark a Mist of Ignorance on the People they may judg what they please unperceived and this they may do with greater security than Latine for Latine is intelligible to some but Fictions and Nonsense to none and all this is caused by neglecting the Oath of Calumny The General Trial of Titles by Lease of Ejectment is likewise by Fictions in the Verge Coke says 2. part 548. there can be no Suit except one Party at least be of the Kings House yet Suits are there though all Parties are strangers which must be by Fictions An Obligation made beyond Sea cannot be Sued in England as saith Perk. 25. 95. France by Fiction brought into England Bro. Obligation 70. Dr. Stud. 63. but Coke Com. 261. b. g. saith It may be alledged to be made in quodam loco vocat ' Burdeaux in France in Islington in the County of Middlesex and there it shall be Tried So though in matter of Life of highest concernment in High-Treason by adhering to the Kings Enemies beyond Sea it is certain saith Coke such adherency without the Realm must be alledged within the Realm Coke Com. 261. And before the Statutes of 33. and 35. H. 8. c. they used to alledg Treasons committed beyond Sea to be committed within the Counties in England where the Lands forfeited lay though it was done on Oath ib. Stamf. 90. but this was in time of Popery when they could easily dispense with Oaths and take away not only mens Estates but
may be easie for the Priests to put Apples Grapes and Nuts in a Coffin and by Night to make fearful Noises Shrieks Groans and Counterfeit Apparitions about Graves and Tombs whence the horror of the very place and darkness make such impressions on timorous Fancies as they shall not dare to approach much less examine the matter and take out the new Body out of the Coffin and put in one had been Buried Seven Years and then a Vault made of purpose to make a noise under ground in the Church and Sofronio know nothing of all this 5. But whether it were Witchcraft or Cheat it is most horrible wickedness to make Use of either under pretence of Church-Discipline or the Worship of God seeing they both come from the Devil Alvarez a Portugal Priest Relates of himself That at the Town of Barva in Ethiopia there appeared a Terrible Cloud of an infinite number of Locusts which at length fell and Devoured the Countrey and that he and another Portuguez Priest took a Consecrated Stone and the Cross and sung the Letany and in this manner went in Procession through the Corn-Fields for the space of a Mile unto a little Hill and there he caused them to take a quantity of the Locusts and made of them a Conjuration which he carried with him in writing which he had made the Night before Requiring them Charging them and Excommunicating them Willing them within Three Hours space to begin to depart towards the Sea or towards the Land of Morez or towards the Desart Mountains and to let the Christians alone and if they obey'd him not he called and adjured the Fowls of the Air the Beasts of the Field and all the Tempests to scatter destroy and consume their Bodies And for this purpose he took the quantity of Locusts and made this Admonition to them that were present in the name of themselves and those which were absent and so let them go and gave them liberty The Locusts began forthwith to depart and in the mean while a mighty Tempest and Thunder arose toward the Sea which drowned all the Locusts in the River and the dead Locusts remained in heaps two Fathom high on the Banks so by the Morning there was not one Locust left alive This Excommunication if true were Conjuring and Witchcraft Flies Excomunicated Peter de Nathal in vita Bernhardi Relates That St. Bernhard denounced the Sentence of Excommunication against Flies Whether this may be call'd Witchcraft or a Silly Prank of St. Simplicius I cannot say but if he could Excommunicate Flies without a Magical Telesme or Inchantment Fishes Excommunicated he shall be the Domitian of Divinity Mere. Gallo lib. 6. p. 592. saith That Anno Domini 1593. The Bishop of Conagtion very malitiously Excommunicated the Innocent Fishes Theodosius a Bishop of Alexandria Dead Excommunicated Excommunicated Origen Two Hundred Years after his Death if he is censur'd only for a Cheat 't is less than so wicked a practice deserves Now though God may permit wicked men to Excommunicate and Daemons Witches wild Beasts and Tyrants to abuse the Bodies of the best men after they are dead they have no Power to touch the Soul And we ought not to fear but contemn their Excommunication for so saith Christ Matth. 10.28 Fear not them that can kill the Body but are not able to kill the Soul but rather fear Him which is able to destroy both Soul and Body in Hell Excommunication of the Devil Devils Excommunicated Mengus de Flagell Daemon Describes part of the Form of the Romish Exorcism to be I Command you Oh Davils who are come to the help of those that vex this Creature of God N. upon pain of Excommunication and Immersion into the Lake of Fire and Brimstone for a Thousand Years that ye yield no Aid and Assistance to these Devils It seems the Devil is of the Society of these Romish Priests otherwise he could not be Excommunicated To grant a Bishop Power of Excommunication is to grant him the Legislative Judicial and Executive Power Excommunication gives the Pope the Legislative Power over all Nations for by this he made his Canon-Law whensoever he pleased to be observed through Christendom by no other Obligation than his Command they should be observed on pain of Excommunication By granting the Power of Excommunication the Legislative Power is granted and the Clergy in Convocation used anciently without asking the Royal Assent to make Canons touching matters of Religion to bind not only themselves but all the Laity without Assent of the Lords and Commons in Parliament It was used in ancient time for Creditors besides other Security to procure Debtors to Swear they would pay them and thereupon there being then no Arrest in the Temporal Courts for Debt they Sued them in the Spiritual Courts on their Oaths and they granted an Excommunicato Capiendo to Arrest them without Bail which were so frequent that E. 1. could not keep his Servants free from Arrest in his Court till to prevent it he caused a Writ De Promulgantibus Sententiam Excommunicationis Capiendis Imprisonendis Commanding to Imprison such as Excommunicated any of them Rot. Parl. 25. E. 1. Intus Henry the Second according to Hovedon would That all such of the Clergy as were Deprehended in any Robbery Murder Felony Burning of Houses and the like should be Tried and Adjudged in the Temporal Courts as Lay-men were But Becket Arch-Bishop of Canterbury stood proudly on the Pontificial Prerogative of the Clergy That no Clergy-man ought to be Tried but in their own Spiritual Courts and by men of their own Coat And if they were Convicted before them they ought only to be deprived of their Office but if they after offended they should be Judged in the Kings Courts This Power of Judgment he drew to his own Court only by his Power of Excommunication A Copy of a Prohibition of Excommunication A true translated Copy of a Writ of Prohibition granted by the Lord Chief Justice and other the Judges of the Common-Pleas in Easter-Term 1676. against the Bishop of Chichester who had proceeded against and Excommunicated one Thomas Watersfield a Church-Warden for Refusing to take the Oath usually tendred to Persons in such Office to Present such who absent from Church by which Writ the Illegality of all such Oaths is Declared and the said Bishop Commanded to Release and take off his said Excommunication c. CHarles the Second by the Grace of God King of England Scotland France and Ireland Defender of the Faith c. To the Reverend Father in Christ Ralph by Divine Providence Lord Bishop of Chichester or any other competent Judg in his behalf whatsoever Greeting We are informed in our Court before our Justices at Westminster on the behalf of Thomas Watersfield That whereas by the Laws of this our Realm of England no Person ought to be Cited to appear in any Court Christian before any Judg Spiritual to
THE Night doth vanish when the Sun appears And from all Clouds the smiling Morning clears Romish Night-Ravens flie ye filthy Fowls And all ye Ceremonial Bats and Owls And Weather-cocks whose painted Feathers strange With every Wind God's Moral Law would change His Law is light the Sun outshines the Torch Which blindly Virgins led to the Church Porch Ye Meadows deck your selves with flowry pride Hear of an Holy Marriage and a Bride Not given by Man but God so great aad wise And by him Married as in Paradise With Beauty bright as Fire but chast and cold As Snow he Crowned her and not with Gold The Issue fair who did not Prophesie Sacred Religion Justice Liberty And Property providing of the best Both Bread and Wine for every Marriage Feast The Morall Law The Ceremonial Law Marriage by the Morall Law of God Vindicated Against all Ceremonial Laws of Popes and Bishops destructive to Filiation Aliment and Succession and the Government of Familyes and Kingdomes The Lord hath been a Witness betweene thee and the Wife of thy youth Mal. 2.14 1680. Linea Recta Proefertur Transversali RELIGION IUSTICE LIBERTY PROPERTY TO THE READER THE Writers both of Nature and Policy agree That the Original of all humane Society was Marriage by which Families were first composed consisting of Men their Wives and Children and after Commonwealths composed of those Families when by the multiplication of Generation they were grown so numerous as to be no longer able to preserve their Religion Liberty Propriety and Lives against one another without some Union of all obnoxious to receive or do Injuries under such Form of Government as was by the whole or major part of the Fathers of Families in their General Conventions of themselves or Representatives Consented and Covenanted for the common Peace and Happiness of all to both which no Constitution of Laws was more necessary than those which concern'd Marriage Filiation Aliment and Succession whereon not only private but publick Peace and War often depended and therefore Marriage being the Ordinance of God and not of Man it was impossible to lay any secure Foundation of the Rights of the same except on the Moral Law of God and no other was long observed either by the Jews or Gentiles than what was as Christ saith from the beginning till to break in pieces the Divine Tables of the same the Devil and the Priest conspired together to set up the Golden Calf of their Ceremonies and that Gods Ordinance should be null and void without them and no probation should be admitted of their performance but the Certificate of the Bishop or High-Priest by which as to matter of Succession to Inheritances and Kingdoms They bound their Kings with Chains and their Nobles with Fetters of Iron God was pleased to make the Contention concerning a Marriage between H. 8. and the Pope the occasion of breaking off some of the Links and of being a beginning of the Protestant Religion and Liberty and I hope he doth now offer the like or a greater occasion of propagating both to the present Age and Posterity and not only to break all the Reliques of the Chains but to file off the Collars themselves whereby the Bishop of Rome and the Provincial Bishops have long so gauled the Necks of Princes and People through all Christendom to the easing of which Burdens I should be glad if thou and so many other more fit than my self would lend your hands but seeing so many seeming to sleep in the midst of so great a danger I hope it ought not to offend if I hereby endeavour to awaken you and to be therein as I ought to be to my Power Your Servant Will. Lawrence THE CONTENTS Of the First Book BY what Law Marriage Filiation Aliment and Succession ought not and ought to be Judged p. 1. Not to be Judged by the Law of Moses or Customes of the Jews p. 2 Not to be Judged by the Laws and Customes of Heathen Nations p. 10 Not to be Judged by the Law Civil Canon or Feudal p. 21 Not to be Judged by the Law of Mahomet p. 26 Not to be Judged by Ecclesiastical Laws p. 31 All Allegations of Coke in behalf of Ecclesiastical Laws answer'd ib. Of the mischiefs ensue from Ecclesiastical Laws p. 43 1. All Ecclesiastical Laws of Marriage were invented by Daemons Pagan Priests or Popes ib. The History of the Devil appearing in the shape of Christ to Dr. d ee and tempting him and his Seer Kelly to Community of Wives p. 45 All prohibition of Marriage or Meat in any Ceremony or Circumstance not prohibited by the Moral Law of God came from the Devil p. 52 2. The Final Causes of all Ecclesiastical Laws of Marriage variant from the Moral Law of God were Lust Covetousness and Ambition of the Priest p. 53 3. They pester the Three Kingdoms with an unnecessary and excessive multitude of Laws p. 57 4. They corrupt the choicest Protestant Wits in their Education with Principles of Popery and Slavery p. 59 5. They introduce divers weights and measures of Justice in the same People ib. 6. They compell the Subjects ad aliud Tribunal than Caesars Judgment Seat ad aliud Examen than per legem terrae ad aliud judicium than legale judicium Parium ib. 7. They expose the Subjects to Circuit of Action Subornation Perjury and to be ground between two Milstones of interferring Jurisdictions Spiritual and Temporal 8. Papal Laws of Marriage are inconsistent with a Protestant Priesthood ib. Not to be Judged by such Laws of England Scotland or Ireland as are Reliques of Popery and contrary to the Law of God Of the Law making Marriage a Sacrament p. 65 Of the profound Popery of the Common Lawyers of Transubstantiation of two Persons into one Person and the mischiefs thereof p. 66 A Note taken at Kings-Bench-Bar of the miraculous Transubstantiation of a Shoulder of Mutton betwixt a Man and his Wife p. 71 Of the Law of Transubstantiation of the Children of the Wife into the Children of the Husband if within the Four Seas and of Intails p. 72 A further descant on the words of Littleton and Coke concerning the same and of Intails on Marriages depending thereon p. 73 75 Of the barbarous Law of Illegitimation or making Children incapable to succeed to the Goods of their Parents the Reformation thereof by the Emperor Anastasius and the Deformation of the same again by the Strumpet Theodora and succeeding Popes and Bishops p. 79 That unlawful Marriages of Parents ought not to Illegitimate their Children p. 80 Illegitimation of Children shews Popes and Bishops worse than Pagans Infidels Beasts Monsters Serpents p. 82 Intails Feminine cut off by Adoption or Institution by the Father of his natural Children Heirs ib. Of the Law of Consensus non Concubitus facit Matrimonium p. 83 Of the Pagan Goddess Juno and the Popish Mother of St. Kentigern both got with Child without a Man p. 85 Of the
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
Men to the height whom he himself if an Enemy appears in his Year is to lead in Person against him 8. The greater the number of Judges the greater the delay in the Proceedings 9. The greater number of Judges the more difficult to obtain Remedy against those of them who Judg wrong for they conceal their names as the Lords of the Session of Scotland being Fifteen and sometimes Eighteen compel the President to sign their Sentence in his name A. B. I. P. C. that is in praesentia Curiae though it be contrary to his Vote whereby it is as impossible to discover who gave the wrong Sentence as 't is in a Jury who gave the wrong Verdict deliver'd by the Mouth of their Foreman So in Athens the Court of the Areopagites were in number Twelve and they gave their Sentence into a Balloting Box by Black Beans and White Beans whereby it was impossible to know who gave the unjust Sâ—ntence on which Plutarch mentions a passage of Alcibiades who being sent for home out of Sicily to Athens to be question'd for his Life Fugam fecit and being askt by one saying Wilt thou not trust thy own Countrey who begat thee to be thy Judg No quoth he nor her who brought me forth lest she being Ignorant and not conceiving the Truth mistake a Black Bean for a White Amongst oâ—hers was the Custom to do it with Black and White Stones as Ovid Mos erat Antiquis niveis atrisque lapillis His damnare reos illis absolvere culpa They Sentenced with Stones of Black and White That know thou mightst not who Judged Wrong or Right 10. The Appeal must be to double the number as from a Jury of Twelve to a Jury of Four and Twenty which makes double the danger amongst so many they all concealing their Names in giving their Verdict as well as the first Jury 11. When a Jurisdiction is divided to two Judges which might have been exercised by one by the Interfereing of the divided Jurisdictions a man is pull'd to pieces to pay Tribute for the same Cause to both as between the Chancery and the Common Law Courts between the Kings-Bench and Common-Pleas one on Indictment of Trespass the other for Action of Trespass for the same offence so between the Common Law Courts and the Episcopal Courts a man is not only put to double Costs but is twice punish'd for the same offence and all Jurisdictions in the hands of several Judges will interfere except such as are divided by Territory and no other respect as the Jurisdiction of one County-Court is divided from another by Territory the County Palaâ—ines from the Westminster Courts by the Territory bounding them the Admiralty from the Common Law Courts by the Territory cover'd with the Sea 12. Where one Judg is sufficient to perform the Office of many with greater Expedition and Justice a multitude of Judges must be then a vast Charge to the Publick and a Prejudice as if to Justice the Romans had appointed Twelve Judges for every Province where one alone discharged the same it had been enough to have exhausted the Treasure of an Empire it is manifest that but three Judges only iâ— Westminster one in the Kings-Bench the other in the Common-Pleas and the third in the Exchequer let them have but the Jurisdiction of Fact Law and Equity as they ought to have may with as exact Justice and greater Expedition than now is done discharge all the Offices of the Twelve Judges of the Kings-Bench Common-Pleas and Exchequer save the labour of the Prerogative Court of Arches Court of Audience Court of Faculties Court of Peculiars Consistory Courts Court of the Arch-Deacon or his Commissary the Court of Delegates and all Episcopal Courts and Offices and likewise save the Labour and Charge of a distinct Chancery and of all original Writs and of all Commissions of Rebellion and of all Outlawries of all the intolerable Slavery of Sheriffs in making Pannels and of Free-holders serving in Juries and of Nisi Priuses and of Councels speaking to matters of Fact before Juries And that three Judges are sufficient to do this and many matters more I speak by experience for there were but four English Judges sent into Scotland and sometimes there were but three and sometimes but two there the other serving in Parliaments as they fell out and occasion required and we discharged all the Offices of Lords of the Session Lords of the Exchequer and of the Justitiar General in his Justice-Eir and in his particular Justice-Courts which did answer all the Offices and Power of the Judges in Westminster of the Chancery Kings-Bench Common-Pleas and Exchequer and of the Justices of Gaol-Delivery in their Circuit and besides these we Discharged the Commission for Plantation of Kirks through all Scotland and were Visitors of the Universities there were Judges likewise of the Seisures of all Ships except English Importing any Goods of the Production of Asia Africa America or Europe contrary to an Act made 1651. Cap. 22. for Increase of Shipping and encouragement of Navigation we likewise Discharged a Commission of Claims and a Commission for moderating the Fines laid on Persons who had been in Hostility to a Third part we likewise Discharged a Commission to Elect all Chief Officers in the Boroughs and made all the Sheriffs of Scotland yet had we not above Six Hundred Pound per Annum for all this and about Two Hundred Pounds to bear the Charge of a Circuit which was no profit to us but spent in entertainments for the Publick Honour neither did we take any Present Treat or Entertainment from the Sheriffs though of our own making and much less any Bribe or so much as Esculenta or Poculenta from them or any other now that which made it possible to us to Discharge so many Courts Offices and Commissions was that we were saved the labour of having Causes tossed and tumbled from Chancery to Common Law the Chancery and Common Law being there united and Pleas of Equity admitted in the same Court and there being no Juries in Civil Actions the same Persons were Judges of Fact Law and Equity another cause was that there were no Original Writs but the more compendious and just way of Summons used by serving the Defendant with a Copy of the Declaration another cause was that Councel could not speak to matter of Fact in Civil Actions before Juries or at Nisi Priuses there being none nor was so much as one of them suffer'd to speak or appear at the Bar when the Depositions of Witnesses are Advising or Reading as they do with us at Chancery-Hearings to the intolerable charge of Suitors and destruction of Justice and Equity another cause was that the Councel first excepted to the Law which we call a Demurrer and after that to the Fact which we call a Plea and had that liberty given both to demur and plead which kept the way so clear before them that they had never
the Servandes of the House or other famous Witnesse and sall execute their Offices and Charge and thereafter sall offer the Copie of the saidis Letters or Precept to ony of the Servands quhilk gif they refuse to do that they affix the samin upon the Èœett or Dure of the Persones Summoun'd and siklike gif they get na entress they first knockand at the Dure Sex Knockes they sall execute their Office before famous Witnesse at the said House and dwelling place and affix the Copie upon the Èœett or Dure thereof as said is quhilk sall be leiful and sufficient Summounding and delivering of the Copie and the Party and Officiar sall not be halden to give ony usher Copie bot at their awin pleasure And every Officiar in his Indorsation sall make mention of his awin Execution in manner fore said and the Partie at quhais instance the Letter or Precept is direct sall pay to the Officiar Executour the Expenses of the Copie affixed as said is and sall be taxed and given again to him the giving of the Decreet or Sentence gif he happenis to obteine And gif the Officiar heis foundin culpable in the Execution of his Office he sall be put in our Soveraine Lordis Prison and punished in his Person and Gudes at the Kingis Grace Will. Coke 4. part 99. saith The Common Pleas may in many cases proceed against their own Officers by Bill without Writ and why may not all the Subjects have the same Right as well as the Officers of the Common Pleas In London before the Mayor and Aldermen Debt and Personal Actions are determined by Bill without Writ City-Law 3. And so are Assises of Nusance ib. 4. and why may they not by Copy of the Bill be commenced better than by Writ over all the Kingdom The mischiefs of Original Writs from the Chancery Besides the Delays of Original Writs and Process by remoteness of Courts whither they are to be sent for and by the multiplications of Aliases and Pluries and the manifold dangers when gotten and executed to be again overthrown and nullified by Abatements for a multitude of frivolous Causes and Formalities and likewise for so many sorts of Variances as before mention'd of all which the Declaration might have been free if no Writ had preceded 1. It is excepted against Writs that Declarations are not amendable and it costs many times so much in amending the Misprision of Clerks in their Writs that the Plaintiff if he is not so poor as not to be able were better abate his own Writs and Declaration himself and pay Costs and buy Twenty new Writs than get one of the old amended 2. Writs Original are altogether useless except to get Money for nothing 3. They are saleable contrary to Magna Charta Nulli vendemus Justitiam and the Civil Law for Lege Julia tenetur repetundarum qui accepit aliquid ob Judicem delegatum dandum mutandum vel ob non dandum c. And what doth a Writ of Right a Justicies or any Original do besides but assign a Delegat Judg to hear the Cause in the Kings-Bench or Common-Pleas or Lords-Court or County-Court Then 't is contrary to Equity the Plaintiff should be compell'd to buy a Writ which is not only useless but pernicious to his Declaration and puts it in ten times more danger to be overthrown than if he might as he ought be permitted to use it without a Writ and the Plaintiff being to deliver a Copy of his Declaration Expensis Actoris to the Defendant 't is no reason he should be at any expence to pay Clerks for Writs impertinent 4. As to the Writ in Chancery of Subpaena Mischiefs of the Chancery Writ of Subpaena which is to be distinguished from the Writs to the Common Law Courts it is contrary to Magna Charta Nulli negabimus Justitiam for if a Poor man Sue a Noble-man there a Chancellour will deny a Poor man his terrible Writ which he uses to grant under a Hundred Pound Penalty in Terrorem Pauperum and he shall get no more of him if he do that at a greater price than the Writ would have cost but a poor begging Letter to the Noble-man to send his Answer to the Complaint against his Oppression which is no other than to bring into England the old Slavery of Rome whereby no Slaves were permitted to Sue their Lords before the Pretor or any other Judg were their Tyranny over them never so great and unjust What a wretched dishonour is it to Publick Justice which heretofore was blind to the Person that she turns now blind to the Cause and who heretofore carried the Sword in her hand Parcere Subjectis debellare superbus to have now lost her Sword and got a Crutch to become only a blind Beggar when she is to approach the Gates of Nobles neither is there any Law of God or man in England to justifie a Chancellour that he shall presume to use a different process of Concumacy against the Commons Chancellour hath no Power to Imprison Commons any more than Lords which he dares not use against the Lords for if it be not lawful for him to Issue Attachments or Commissions of Rebellion against the Lords or to imprison them then is it not lawful for him to Issue Attachments or Commissions of Rebellion against the Commons for both are equally Interested in Magna Charta and the Petition of Right not to be imprison'd without the lawful Judgment of their Peers and they being both Allies and Confederates by the said Acts to maintain the Commons Liberty The Liberty of the Commons is the Out-work which preserves the Liberty of the Lords if the Commons be Invaded though for the present such Invasion touch not the Lords yet when it hath destroyed the Liberty of the Commons the Lords will not be able to defend theirs when their Allies are lost The Liberty of the Commons is the Outwork which preserves the Liberty of the Lords the Liberty of the People is the Outwork which preserves the Liberty of the Parliament the Liberty of the Subjects is the Outwork which preserves the Safety of the King and as Solomon saith Prov. 20.28 Mercy and Truth preserve the King and if contrariorum contraria est ratio Cruelty and Fictions of Writs of Subpoena's in Chancery Latitats in Kings-Bench and Capiases without Summons in Common-Pleas wherewith they abuse the Kings name in false imprisonments of his Subjects without Crime or Cause destroys the prisonments of his Subjects without Crime or Cause destroys the Safety of the King himself and in a Case between the Duke of Lenox and the Lord Clifton M. 10. Jac. Though a Lord was not to be Committed for Contempt in a Poor mans Case yet in this Case between two Lords Chancellour Egerton said If Noble-men will commit Contempts they are to be Committed Now that the Imperial Power which hath been usurped by Chancellors to imprison the