by her assent the Emperor is endeavour'd to be stoned by the people in hatred of his Concubine Zoe pacifieth the people Ib. Impotency and Sterility is a cause of Divorce The Law of Solon allowed Impotency in the Man or Sterility in the Woman to be a good cause of Divorce Plutarch in Solon vid. Aust contra c. because then old Folks might not Marry Such was the modesty of ancient times in Rome that from the first foundation of the City for the space of Five Hundred and Twenty Years there happened no Divorce between a Husband and Wife Val. Max. l. 2. cap. 1. And the first who began it was Spurius Carbillus who put away his Wife for Sterility which though it seem'd a tolerable cause yet wanted not reprehension from divers who thought the Conjugal Faith ought to overweigh the desire of Children Anno 631. Dagobert the great King of France repudiated his first Wife for Barrenness and Marrieth Nantildis a Nun Amandus a Bishop reproves him and he banisheth the Bishop afterwards having a Son he revoketh the Bishop to baptize him Calais Anno Christ 1263. The Queen of Bohemia being old and Barren the King intendeth a Divorce she layeth the fault on him he maketh her this offer That she should appoint him a Maid and if he got her not with Child in a Year he would be reputed faulty the Queen accepteth it and in Ten Months he hath a Son and afterwards divers Daughters She is Divorced and Marrieth Kum Grand Daughter to the Duke of Muscovia Chron. Boh. Regner King of Denmark Anno 820. marrieth Langertha a Warlike Woman of Suevia and had by her Fridlanus and two Daughters Crom. After he Repudiateth Landgertha for the inequality of the Match and Marrieth the Daughter of Hezotus King of Suevia by whom he had many Sons Crom. Anno 1354. Peter King of Spain repudiateth Blanch Daughter to the Duke of Bourbon and Marrieth Jean de Castro Histor Hispan Anno 1373. The King of Portugal refused a Match in Castile and taketh a Nobleman's Wife and banisheth him his Subjects are discontented with him Hist Hisp Anno 696. Pepin King of France repudiated his Wife and married Alpaida his Concubine by whom he had Charles Martell and he kill'd Lambert Bishop of Thuring for reproving his Marriage Am. Fris. Anno 576. The Wife of Chilperic King of France was divorced and thrust into a Monastery for being Godmother to her own Child Truon Charles the Eighth of France was Espoused to Mary the Daughter of Maximilian Maximilian marrieth Ann the Daughter and Heir of the Duke of Britain by Deputy The King of France repudiates the Daughter of Maximilian and marries the Daughter of the Duke of Britain Luis the Twelfth of France repudiates his Wife and marries Ann his Predecessor's Widow Anno 1333. The Marquess of Misnia having married Judeth the Daughter of the King of Bohemia the Emperor causeth the Marquess to repudiateher and marry his Daughter The King of Bohemia taketh divers places in Misnia and giveth Judeth to John Son of the French King Dub. The Arch-Bishop of Gnesna in Polonia forced Married Priests to be Divorced from their Wives Alsted Anno 1218. Lewis the Seventh King of France having married Elianor Daughter and Heir of William Duke of Guyen and having two Daughters by her notwithstanding divorced himself from her on pretence they were Couzins in the fourth degree She was after married to Henry the Second of England who had by her Five Sons and Three Daughters and was she who revenged her self on Rosamond though not in so high a degree injurious to her as Adela the Daughter of the King of France affianced to her Son Richard who was after King was suspected to be of whom it was commonly reported That her Husband was so far inamor'd that he having Committed Elianor to Prison resolved to be divorced from her and marry Adela Bak Hist 55.59 King John having maâ—ried Avice Daughter and Heir of Robert Duke of Gloucâ—ster having no Issue by her divorced himself from her alledging that she was his Couzin in the third degree Juan Daughter of Edward the First for her Beauty called the fair Maid of Kent was married first to William Montacute Earl of Salisbury and from him divorced but it appears not for what cause and was after married to Sir Thomas Holland in her right Earl of Kent and Father of Thomas and John Holland Duke of Surrey and Earl of Huntingdon and lastly she was Wife of Edward of Woodstock the black Prince of Wales and by him Mother of the infortunate King Richard the Second Henry the Eight married first Katharine Daughter of Ferdinando King of Spain the relict of his older Brother Arthur and was after Twenty Years marriage and the Birth of his Daughter Mary after Queen of England by her divorced from her on the opinion of some Divines that it was not lawful for him to marry his Brother's Wife and having successively married two other Wives after their death he married his fourth Wife Ann Sister to the Duke of Cleave she lived his Wife six Months and then was likewise Divorced Civilians Canonists Divines Lawyers and one Pope against another Aliment of Children and all by the Ears about Divorce and unless as we ought we wholy consult the Moral Law of God there is not a word of sence in the Laws of men but they are all for gain As Desertions and Divorces of Mothers without cause have been too frequent both amongst Gentiles Jews and Christians so likewise is the Desertion and not giving Aliment to Children Aristotle stain'd his Philosophy with the bloody Doctrine of exposing Infants The Chinoys who are poor think it Charity to strangle their Infants and save their Aliment Fornicators make it their custom to deflour Virgins and get them with Child and then illegitimate and desert both Mother and Child to save the charge of Aliment And oh horrid amongst Christians who le Parishes rise with Swords and Staves against one poor Sucking Babe to exterminate both it and the Mother naked and to be Vagabonds to beg steal or starve only to save so small an Alms as Aliment to one poor Infant not able to speak or beg for it self It is related by Travellers that some Indians use when a Child is born if it take not to suck the Dug of the Mother well they carry it out of the House and hang it naked on a Tree and leave it there returning themselves into the House after a while they go out again and bring in the Child and offer it the Teat if it take it not they carry it the second time and let it hang twice as long and fetch and offer it the Teat again if it take it not then they hang it on the Tree the third time and leave it hanging till it dies God made man righteous and writ the Moral Law in his heart but since the Devil hath seduced him to the Ceremonial he is become
either Party both on matters principal and incident till there be a Contumacy to return Answer or a Litiscontestation made and a Commission desired to examine Witnesses and the Parties for Probation this would cause all those little Shreds of Sheeps-skins which so unnecessarily torment the Countrey and the dead Pots to be laid aside as the Popish Agnusses Dei or rather Agnusses Diaboli were and so the Successors to the Popish Clerks would lose their Fees in the one as well as the other to the great joy of all the Protestants 2. What is worse they would lose their Eight pence per Sheet for but Eight words in a Line and Fifteen Lines in a Sheet in Chancery and for Six half words in a Line with a Dash and Twelve Lines in a Sheet at Common Law all which a Boy would far better transcribe for a Peny per Sheet for want of which Oblatio Libelli by the Plaintiff a Rich man will of purpose draw his Bill in Chancery and stuff it with nothing but Falsi iâ—s so long to multiply the Sheets against a Poor man that it will cost him many times Three or Four Pounds for a Transcript for which he must send an Hundred Miles besides before he shall know what he must Answer So that the Rich need do nothing else to undo the Poor but suggest and throw him into the Lions Dens of Chancery Common Law and Checquer-Clerks for Copies of those Legends of Lies they themselves invented whereas if these rich and vexatious Plaintiffs were compell'd to serve Defendants by sending them from their Pallaces but a Copy to their poor dwelling Houses or Cottages what their wills and pleasures are to have right or wrong they would pay as far as they were able rather than if they told them they should first go so far to Clerks to buy Copies of their Will and Pleasure before they would vouchsafe to reveal the same and after be less able to pay than before 3. They would lose all the Gains of those unnecessary and hurtful Entries and Inrollments of the Bills Declarations and Pleas of the Parties in those huge heaps of Mouldy Rolls wherein it is easie for them to forge what they please for no Averment is allowed against Clerks and their Records which should be far better and more Authentick were the Copies delivered Signed by the Parties themselves and only filed orderly as received from the Parties and not Enter'd nor Inroll'd by the Clerks but kept by Filazers 4. They would lose all the Gains de Temere Litigantibus which is more than they have from â—uitors which Sue of necessity and for just Cause and would not have one Suit in Ten which they now have before them for the Countrey-man where the Writ is served before the Bill or Declaration think they shall Conquer presently their Adversary if they but Arrest Outlaw or have a Commission of Rebellion against him whereby they are encouraged by Attornies to rush blindly into unwarrantable Suits which many times undo them Whereas if the Law were as it ought to be by the Precept of Christ That every Plaintiff should first send a Copy of his Bill to the Defendant and heir his Exceptions against it or sind his Contumacy before he Summon'd him before a Judg he would before he would rashly en angle himself in Law-Suits consult Councel and have his Bill or Declaration drawn by them and hear the Exceptions of his Adverâ—ary against it after which there would not one of Twenty dare run headlong on a wrong Suit except Pâ—â—sons extreamly Litigious and shameless Whereas now on Summons and Arrests tolerated before a Copy of the Bill or Declaration given the Defendant vexations Contentions both in Chancery and Common Law are infinite and endless Of giving a Copy before an Oath of Calumny That he who gives it believes the same true and just The Oath of Calumny may by the Civil Law be required not only of the Parties Litigant but of their Advocates and Procurators who are in our Language their Councellors and Attornies and the same is appointed by an Act of Parliament of Scotland the Practice of the Courts there and the same is done not only to the Bill but to all parts of Process alledged either by Plaintiff or Defendant and is of excellent Use to clear those Contagious Plagues and Pests of Judicial Proceedings Fictions and Falsities and to restore Truth which is impossible to be kept alive in Religion or Justice without abolishing the other The Causes which introduce Fictions and Falsities into Judicial Proceeding are Four One the not using the Oath of Calumny The Second the not admitting Averment or Probation to the contrary The Third the not giving the Adverse Party notice of the time and place the Swearer is appointed to be Sworn and liberty to be there present himself or by his Commissioners to except against him if he have cause The Fourth is denial of Travers and Contrary Probation to all that is doubted to be false In the Civil Law there was but one Fiction which was Fictio Postliminii the occasion whereof was the Romans to incite their Soldiers to Conquer or Die which is to take no Quarter toucht by Virgil Jaciat si quem fati sors dura peremit and Horace p. 75. Si non perit immiserabilis captiva pubes If Captive Youth should not be suffer'd to perish without Pity and Redemption it would saith he be a pernitious Example to Posterity had this Cruel Law or Custom That who was a Captive lost the Rights of a Citizen and who died a Captive in the Power of the Enemy his Estate should be confiscated to the Publick Treasury and he should have no Heir to succeed him ff de Captiv postlimin To abate the rigor and severity of this Law the Judges helped the Captive by a Fiction feigning that he was never taken Captive but always remained in the City and the Legislative in imitation of the Judges that they might the less be taken notice of to derogate from their Military Discipline stretched the former Fiction a little further and enacted by their Lex Cornelia in favour of the Heir whose Father happen'd to die Captive to the Enemy a Charitable Fiction not to punish the Child for the Fathers offence that the Father died the next hour before he was supposed to have been taken Captive L. Si is qui pro Emptore in addit marg de Vsucapio And like that of the Midwives of Aegypt to preserve young Children from Destruction seems excusable if it was not possible to do it any way else but these Episcopal Fictions That Marriage is of Souls not Bodies of Spouses not Wives begetting of Children is by Husbands absent within the four Seas not by Adulterers within the Spouses Bed That Sons are not of the blood or kin to the Father who begot them but of him of whom the Bishop will please to certifie them these are not Mendacia Officiosa but
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