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
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
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
Dioccss of L. the Sixth day of August Anno Dom. 1606 Matrimony true pure and lawful Per verba de praesenti according to the form and rites of the Book of Common Prayer of the Church of England between the said A. B. and C. D. was Solemnized by one Mr. A. V. Clerk in the presence of J. J. W. B. W. W. R. M. Witnesses in this part by the said Bishop examin'd and sworn and of other Witnesses then present the said Parties A. B. and C. D. his Wife being of lawful Age and from all other Matrimonial Contracts free clear and clean as the Witnesses so sworn and examined believe This is the Form of Certificate which carries the best Circumstances and Face of a Marriage which can be put on any But the Bishop will give his Certificate as full of a true pure and lawful Matrimony to Coke's Woman with the Adulterous great Belly who lays it down the next day though no Witness will compurgate from other Contracts and transubstantiate as well the Child Adulterous as lawfully begot to be Child of the Husband yet is not this Certificate neither free from fiction and falsity contrary to the Law of God for it is already shewn That it is impossible to make a verbal Contract per verba de praesenti praeterito or futuro matrimonio and that Matrimony cannot be before a Mother nor a Mother before Conception of a Child and that 't is impossible to make a Ceremonial Law of Marriage either of the Church of England or Rome to be the Moral Law of Marriage instituted by God and besides if there were a lawful Marriage there can be no Sequel or Ergo infer'd That the Adulterous Child of the Woman is lawfully begot because the Marriage was lawful or ought to be Successor to the Husband 's Goods because born of the Wife for there can be properly no Adultery nor Adulterous Issue born but within lawful Marriage But Logician beware the Bishop's Certificate and a Law of Transubstantiation alter the case if thy profane Reason will dispute Faith or Episcopal Infallibility in Marriage Filiation and Succession thou wilt be Excommunicated The good Woman hath the same advantage whether she go from her Husband's House or stay there for if the good-man leave her at home and march abroad himself a Soldiering or Merchandizing if still it be within the four Seas and his Stock increase and multiply at home the while more then abroad he must not be so ill natur'd as not to bear the charg of his better Factress then himself During the late Civil Wars A Souldier finding his Wives Children transubstantiated into his I was credibly informed of a Soldier who left his Wife at home with one Child and was for divers Years so long out in Service that before he returned home again his Wife had two more to increase his number at length he returned home to the Town where he dwelt and the Neighbours as soon as they understood it went in shew to welcome him home but withal to see how he would like the increase of his Children in his absence where after they had sat a while he appeared very kind to his Wife and very fond of his Child which he had left at home at his departure supposing the other to have been some Children of the Neighbours who were come in to play with his 'till a while after seeing those Children by his Fire-side to draw closer to his Wife then strangers use to do he asked Whose the Children were the Wife and answer'd him Thine whereat he was much amazed and demanded how that could be seeing he had not been at home so many Years The Wife replyed thou might'st have stayed at home then and got them thy self if thou would'st so there being no other Answer to be got the poor man was glad to take up this new Bag and Baggage when he thought to have rested For the fiction of Legitimation dared give the Truth of the Soldier the Lie to his face yet he knew not whom to send a Challenge or a Duel to In no better case had he been had he in the Service of his King and Country lost his life in a fight at Sea if within the four Seas what he had got with his own Blood must have gone to an Adulterous Blood at the pleasure of his Wife and the Certificate of the Bishop Of the Law of Intails on Marriage and the mischiefs insuing by them Law of Intails causeth Adulteries and disinherits true Heirs It is before shewen how mischievously the true Heirs are dis-inherited and destroyed by Intails to two Bodies and by Littleton Coke and the Bishops fictions on the same who in despight of Truth Religion Sence and Reason God and Nature will have the Adulterous issue of the Woman preferred before the true and lawful Children of the Man in Succession to the Man's inheritance I shall likewise here touch some other few but fatal mischiefs which the Chains and Fetters of Estates by Intails to two Bodies on Marriages whether these Intails are made by the Pontificial or Temporal Laws do cause for it is to be noted that the Laws of Theodora and the Popes which Enact That no Children shall be capable of Succession to the Father but where the Father and Mother were contracted by a Priest in a Temple is an Intailing of the Inheritance of the Man to the Heirs of the Body of the Woman and an excluding of the Heirs of the Man if she prove adulterous So there cannot properly be said to be any Fee-simple in England No Fee-simple in England for Fee-simple it self is by the Popish Law Intailed to the Heirs of the Body of the Woman begotten beget them who will and the Priest who would not therefore be married himself to a Wife lest she should put a cheat on him and bring forth a yâ—ung Lay-man but take a Curtezan put cunningly the Fee-simple cheat on the simple Lay-man and his Fils de prestre too by making a Law That none should be his Heirs unless begotten on the Body of such Woman as he should give him in a Temple Littleton deceived in Fee-simple So Littleton in his Chapter of Fee-simple and his Commentator on him understood not the words his Heirs for every Fee-simple where a Woman is married by a Priest in a Temple is to go to her Heirs of her Body begotten and not to his and let her have as many Heirs as she will begotten by the Adulterer the Husband's Land shall go to her Heirs but let the Husband who is perhaps turned off by the Wife get as many as he will by another Woman none of those shall be his Heirs For which reason in favour of the true and natural Children and that the Father might have power by Act executed in his Life-time to provide for his own especially where he found his Wives Adulterous as Britton fol. 122. saith That the Forms of Deeds of Feoffment
Children the same ought to be wholly and intirely performed to such Sons and Daughters in all Successions whether to a Testament or an Intestate And in short that they ought not to be made unlike other Children in Successions whom Nature hath made like Hence it appears that the Civil Law wills the Succession of Children shall be according to the Law of Nature and not according to any Canon Law or Law made by the Priest Natura duce errare nullo modo potest Tul. 1. de leg Cum vero parentibus rediti deinde Magistris traditi sumus tum ita variis imbuimur erroribus ut vanitati veritas opinioni confirmatae natura ipsa cedit 3. Tusc Where nature is our Guide it is impossible to err but when we fall into the hands of Parents and are delivered to Shool-Masters we are then infected with so many Errors that all truth gives place to vanity and Nature it self yields to opinion accustomed To fight against Nature is like Giants to fight against God Cato major Of the Final Causes of Marriage by the Law of God and Nature The Final causes of Marriage which is the Ordinance of God and not of Man are not to fill Priests pockets with money or to satisfie their insatiable Covetousness and Ambition to set their Foot on the Necks of Emperours and Kings in their Legitimations and Successions and thereby to dispose of the Kingdoms of Princes and the Liberty Propriety and Goods of the Subjects at their Arbitrary will and pleasure But the Final causes of Marriage by the Law of God and Nature are three 1. Procreation of Children 2. That Man might have an Help-meet for him there being many necessities especially in time of sickness wherein Man cannot be without the help of a Woman 3. To make his life more pleasant and delightful Tristis sine conjuge lectus As for the first part which is the greatest and chiefest end of Marriage namely procreation of Children without which the World cannot be continued To be the shorter I shall only mention one Poet as follows Providei ille maximus mundi-Parens Cùm tam rapaces cerneret fati minas Vt damna semper sobole repararet nova Excedat agedum rebus humanis Venus Quae supplet ac restituit exhaustum genus Orbis jacebit squalido turpis situ Vacuum sine ullis classibus stabit mare Alesque Coelo deerit silvis fera Solis Aer pervius ventis erit Sen. in Hippol. Fates cruel Threats when the great Parent saw Against his Creatures by as great a Law He then Inacted all those whom it slew Sould by new Births perpetually renew Should Venus lease and should not still restore With fresh Supplies Natures exhausted store On squalid Earth no Beauty would remain No gallant Fleets would dance upon the Main No Deer in Woods no Birds would be in Skie Winds only through sad Air would sighing flie There could be neither King nor Parliament nor People nor Governours nor Governed neither could the Protestant Religion defend it self against Pope or Turk without Marriage for though it be Apocrypha it is truly said Esdras 4.15 Women have born the King and all the People that bear rule by Sea or Land The End of the First Book THE CONTENTS Of the Second Book BY what Judg Marriage Filiation Aliment and Succession ought not and ought to be Judged Of the Five Competitors to be Judges of Marriage Filiation Aliment and Succession 1. The Bishop 2 The Magistrate 3. The Souldier 4 The Parents 5. The King and Parliament 137 Exceptions against Bishops being Judges in reference to the Legislative ib. Except 1. They assume to be Judges Jure Divino without a Sign of Mission from God which overthrows the Legislative Power of the King and Parliament ib. Of the Sign of Mission required by the Grand Seignior from Sabatai Sevi a counterfeit Jewish Messiah 139 2. They have falsely translated the Scripture in all words relating to Marriage 142 They have falsely translated Ish Isha Zona Kadesh Philiegesh 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Husband Wife Harlot Concubine c. 142 No such as word as Concubine in the whole Original Scripture ib. They have falsely translated the Seventh Commandment Lo Tinaph to be Adultery 145 They have falsely translated 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to be Fornication ib. They have falsely translated the Tenth Commandment in the words Wife Man-Servant Maid-Servant 146 They have falsely translated Mamzer in the Old and Nothus in the New Testament Bastard Wherein are noted the Errors of Coke Skene and Grotius in following Episcopal and other Popish translations ib. Of the absurdity of Common and Ecclesiastical Lawyers who make the Child born without the Ceremonies of a Priest and Temple no Sib Kin or of Blood to the Father who begot or the Mother who bare him 154 155 Further Reasons shewn that they have falsely translated Mamzer in the Old and Nothus in the New Testament Bastard 156 No such word or thing as Bastard in the whole Original Scripture or amongst the Hebrews Greeks or Romans 3. They have corrupted the Press both as to Scripture and Acts of Parliament and interdict Protestants to Print against or answer Papists 162 A Counterfeit Act of Parliament Printed by Bishops against Protestants and the true supprest 163 Mischiefs which follow the Interdiction of the Press to Protestants 164 165 4. By pretence of giving the King the name of Supremacy they have taken the thing to themselves 167 5. By pretence of giving the King Supremacy by the Ceremonies of the Coronation they take it from him to themselves 169 David Anointed and Crowned by his Parliament and not by the Priest 173 6. They assume in all matters concerning Marriage Filiation Aliment and Succession to be above Appeal to the Kings Courts 175 Of the abominable Judgement pass'd by the Common Law Judges in Kennes Case Coke lib. 7.42 whereby they gave away the Supremacy of the King's Courts to Bishops and made them in all causes Matrimonial subject to no Appeal ib. Exceptions against Bishops being Judges in reference to the Judicial Power 180 1. They are prohibited by the example of Christ to Judg Marriage Filiation Aliment or Succession ib. 2. They are totally ignorant of the Fact and were never Educated in the Laws by which they pretend to Judg Marriage 181 3. They Judg by a Chancellour and not in Person 4. They have Plurality of Offices and more than they are able to serve yet will be Judges of Marriage besides ib. 5. They are ambidextrous and amphibious Judges 182 6. They Judg Marriage by pretended Canons and Laws made by Bishops without assent of Parliament ib. 183 7. They take to themselves Fines and Penalties of their own Judgments 184 8. They Licence Dispence and Pardon all Crimes within their pretended Jurisdiction for Money 9. They cannot be known whether Protestants or Papists if Bishops 185 10. They Judg by Fictions and not by Truth 11. They Judg
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
Children if within the four Seas neither doth he give more reason why he would have a Child call'd a Base-natural or his Fictions in Law beleived above the truth of the Fact then he doth why a Man-child ought to be called Mulier Fifthly As little reason doth Grotius give why a Giant should be translated Bastard according to a certain Latin Translation of the Bible of which there are a multitude all variant one from another 1 Sam. 17.4 which is thus Et egressus est quidem spurius è Castris Pelischthoeorum Goliah nomine Giant falsely translated Bastard Gatho oriundus cujus altitudo erat sex Cubitorum cum spithama which is in English And there went out of the Tents of the Philistins a certain Bastard by name Goliah whose height was six Cubits and a span so because he was a Giant this Latin Translation hath translated him a Bastard And Grotius though he were as great a Giant of learning as Goliah was of Body indeavours to give a reason which is not so tall as a Dwarf for he saith The Hebrews called Giants Bastards because they lived without Matrimony which he intends to be the Ceremony of coupling Male and Female together used by a Priest in a Temple Which cannot be for of all Nations in the World the Hebrews were most free from having so vile a word or a thing as Bastard amongst them and for Marriage in a Temple they never had any at all but always contracted in the open Air and not under any Roof And both they and all other Nations have had so honourable opinions of Giants and esteemed their descent to be so far from being ignoble as they derived them from their gods themselves So Hercules they would have begot by Jupiter And Ajax boasts of himself Sic à Jove tertius Ajax And both Jews and Christians affirm them to be begotten by the Sons of God As Gen. 6.4 it is said There were Giants in the Earth in those days and also after that when the Sons of God saw the Daughters of Men and they bare Children unto them the same became mighty Men which were of old Men of renown Angels beget not Giants Some expound these Sons of God to be Angels but that is contrary to Christ who says Angels neither marry nor are given in Marriage But though Giants and such Hero's were not begotten by Angels they all agree to father them on more honourable Titles of the Sons of God and therefore never intendâ—d they should be translated or called Bastards or base Naturals As low a reason doth Grotius likewise give why he should be called Nothus and not be inheritable whose Mother at her Marriage had not a Torch carried before her Ac nec nupta quidem Taedaque accepta jugali Cur nisi ne caperes regna paterna Nothus Grot. de jur Bel. Pac. p. 168. 1. This authority of Ovid which he cites That the not vouchsafing to have a Torch or other Ceremonies Nuptial at the Marriage ought to make the Child a Nothus or Illegitimate as to Succession proves against him and that it ought not but is an injury and injustice if it should For this is written by Phaedra a later Wife of Theseus to Hippolitus his Son by Hippolita the Amazon a former Wife deceased with whom she being his Step-mother fell in love and to tempt him to her and not to forbear out of reverence to his Father's bed who had been so injurious to him as not to marry his Mother with due Rites and Ceremonies that he might have a pretence to dis-inherit and put him by the Succession of the Kingdom She to make her argument the stronger and the more inciting joyns her self with him to be as highly injured as himself that he might the more assuredly trust to find her ready to join with him in revenge as well as love for so she saith having first repeated her own wrongs she had suffer'd Sola nec haec nobis injuria venit ab illo In magnis laesi rebus uterque sumus And after she saith of the Marriage of his Mother Ac nec nupta quidem taedaque accepta jugali Cur nisi ne caperes regna paterna Nothus And then she saith I nunc I meriti lectum reverere parentis Quem fugit factis abdicat ille suis But the most vertuous and valiant Hippolitus remaining invincible in Chastity as to his Step-mother and in Loyalty as to his Father she as Potiphar's Wife did Joseph to her Husband falsly accused him of attempting to force her which he over-credulous to believe sought to kill his Son And he flying his Father's jealousie and causless anger had by his frighted Horses his Chariot overthrown and himself torn to pieces amongst the Rocks So infortunate was innocence in all things except his Fame which hath lasted through so many Ages His Father on Phaedra's confession understanding the Innocence of his Son and falseness of her calumny she first killing her self after the just Funeral Rites performed and Lamentation answerable made is swallowed up with grief for the loss of a Son so dearly by him beloved Here therefore appears That had it not been for the false calumnies of his Step-mother Hippolitus had succeeded to his Father Theseus's Kingdom notwithstanding his Mother Hippolita had not a Torch carried before her nor was ever married by the Ceremonies of a Priest in a Temple wherein though Grotius need no other answer to his Ceremonial Marriage then what in this example he thought to vouch for them and his principal Goliah-argument being fallen there need no trouble of encountring the petty accessary Reasons Yet I shall likewise persue them in their flight at least to discover what they are His first reason is he saith Where the Father doth not vouchsafe the Woman the Lawful Ceremonies of Marriage he makes the Child contemptible to be his Successor To which is answer'd That we need look no further then his own example whether Hippolitus was a person contemptible or not meriting in all respects to succeed to his Father's Kingdom after his Death 2. It is further answer'd That these Ceremonies whereon he founds his Doctrin of Ceremonial Marriage and the compulsion to the same are before shewen to come from the Devil and the Priests of Priapus and Venus and in imitation of them from Popery Therefore in such Kingdoms as are Protestant and not Pagan or Popish though there may be a toleration given to such as desire to marry with a Torch or any other public Ceremonies suiting with their Conscience and Convenience yet ought not there to be compulsion of Dissentients either in Conscience or Convenience nor so impious a punishment as Illegitimation laid on the innocent Child for such Toys as Ceremonies neglected or dissented to by the Parents 3. There is greater authority in point then either Latin or Greek Poets That the Father though he contemn yea hate the Mother ought not to illegitimate
committed to the next of Kin c. The Administration being thus granted to the Mother the Sister by th Father's side doth commence Suit before the Ecclesiastical Judg pretending her self to be next of kin and the Mother not to be kin at all to the party Deceased and therefore desireth the Administration formerly granted the Mother to be revoked and committed to her as next kin to the Deceased by force of the said Statute Hereupon the most Learned as well in the Laws of the Realm as in the Civil Law were consulted and both Common Lawyers and Civilians unanimously declared it to be an Article of their Faith contrary to Scripture and common sence that a Mother was not kin to her Son so Judgment was pass'd against the Mother whereby she lost her Son and her money too perhaps some that she gave him And in those days this precedent did so much prevail that many other Judgments passed accordingly against the Mothers Then in Rama was there a voice heard lamentation and weeping and great mourning Rachel weeping for her Children and would not be comforted because they were not yea weeping it over again Qualis populea maerens Philomela sub umbra Amissos queritur faetus quos durus arator Observans nido implumes detraxit at illa Flet noctes ramoque sedens miserabile carmen Integrat maestis late loca questibus implet Yea our Rachel had twice more cause to weep then Philomel for Philomel wept only because her Children were not but Rachel wept both because hers were not and because she must not be kin to them neither And surely her mourning had continued for ever had not in process of time the Tears of Women and the Beauty of Truth for what is stronger then Truth and women against Popery prevailed in England but could not in Scotland because Skene put it on the Father The Child not the Child of the Mother Natural affection no consideration to raise an Use to a natural Son but good to an Adulterate Son who is not so apt to weep as the Mother that he should be no Sib or Kin to his Son But will you not wonder My Lord Coke will present you with a couple of rarer absurdities if possible then this for he saith lib. 10. in Leonard Loveis his Case fol. 83. That if a Woman have a Bastard which he intends a Child not born of a Ceremonial Marriage that this Child is not in truth but only in reputation her Child And therewith agrees Dyer M. 17. 18. Eliz. fo 345. 12 Eliz. 290. And then he in his Commentaries and the Judges in Plowden's Commentaries agree in Sharington and Pledal's Case That if a Man in consideration of natural affection covenant to stand seized of such a piece of Land to the use of his Son this natural affection is a sufficient consideration to raise an Use as they call it and to vest the Estate in the Son though he were the Son of an Adulterer and not the Son of his reputed Father if his Mother were married by a Priest in a Temple and his reputed Father within the four Seas But if the Son be his true natural Son begotten by himself then the consideration of natural affection to his true Son is no consideration to raise an Use nor to pass the Land to him but the same is void and null In the first Case where there is no ground for natural affection they talk all of nature extolling her above all considerations and cry out Naturae vis maxima and Natura bis maxima and give away the Estate from the true natural Child to the false Child of the Adulterer Then in the latter Case where there is a just and righteous cause of natural affection commanded by God to Men and instincted by him to Beasts to provide for their own There they are void of natural affection their blind Eye of the Law must see the Infernal darkness of Fictions in the Law and be shut against the Sun of Truth They pretend the Law of Nature in their words but in their works omnia naturae contraria legibus ibunt Nothus made the true Son and the true Son made Nothus They will not allow natural affection of the true Father to his true natural Child to be a consideration to raise an Use in so much as one Acre of Land where they will allow it to the true Nothus and Fictitious Child of an Adulterer against whom probatio non admittitur in contrarium sufficient to invest him in the thousands of Acres of Seigniories and Baronies 'T is strange that Men who profess Law and Justice should not be ashamed of so gross and repugnant absurdities and contrary not only to all Law and Justice but common sence and reason Reasons shewing further that Mamzer in the Old Testament and Nothus in the New are falsly translated Bastard Mamzer Alienigena 1. The word Mamzer is by the best Criticks affirmed to signifie naturally and properly Alienigena seu de alienae gentis foemina natus And that Deut. 23.2 ought to be translated Alienigena non introibit and not Spurius non introibit or in English a Bastard shall not enter but the Translation ought to be in English An Alien born shall not enter into the Congregation of the Lord even to his tenth generation shall be not enter So as the Law here as the Laws of most other Nations do doth put a distinction in priviledge between Alien and Denizen born and not between unlawful and lawful born for an Alien is as lawfully born as a Denizen but hath not the same priviledge either as to Religion of entring into the Congregation or of acquiring propriety in the Land either by Purchase or Succession for if that should be permitted there would ensue the derision or corruption of all natural Religions by contrary Nations and the buying of one Nation out of their Land by another Enemy Nation who were richer in mony then they And that the intention as well as the words of the Law was only against Aliens born as appears manifestly by the next Verse in the same Chapter where it is said An Ammonite or a Moabite shall not enter into the Congregation of the Lord which as the verse before spake of Aliens in general speaks next of Aliens in special Ammonites and Moabites who being of kindred to the Israelites might have been doubted whether intended to be excluded under the general word Aliens which this naming them specially clears and likewise clears that it is intended the National and not the getting or birth of Children in private Families And this is manifest by the constant practice of the whole Israelitish Nation who had no such thing as Illegitimation of the Children of any Ebrew Woman but whether the Wives were one or many the Children all Succeeded alike to their natural Parents if the Father did not for any special reason or otherwise expresly
Part. Fol. 584. saith And here is to be observed how the Statute of 35. E. 1. hath been dealt with since the 17th of E. 3. for in an Act that Year a branch of the Statute of 35. E. 1. was recited That forbad any thing should be attempted or brought into the Realm which should tend to blemish the King's Prerogative or in prejudice of his Lords and Commons which is now wholy omitted and Fol. 585. he saith Note in the Roll of Parliament of the Statute of 38. E. 3. Cap. 1. of Provisors there are more sharp and biting words against the Pope then in Print a Mystery often in use but not to be known of all men from which examples it is manifest that this came by the Fraud of the Bishops who before Printing were Masters of the Authentick Copies of the Laws appointed for promulgation and since Printing are Masters of the Press to interdict and publish what they will Accipe nunc horum insidias Crimine ab uno Disce omnes These few Frauds are discover'd in Print against the Interdictors of Printers which discovery they would likewise have interdicted if they had been able for these latter Books of my Lord Coke were prohibited to be Printed and got out in the late time of Troubles but by these it is clear which were only spoken obiter and without any inquisition after them that all they are guilty of are not discover'd and that to give either Spiritual or Temporal Judges Power to interdict the Press is to give them Power to have what Law what Gospel what Text what Translation what Canonical what Apocryphal what Scripture what Act of Parliament what Common Law what Statute what Religion what Justice what Liberty and what Slavery they please Besides which Power of Fraud and Forgery destructive to all Truth these further mischeifs follow all interdictions of the Press but I shall first answer such Objections as are made against the Liberty of it Object 1 First If Liberty of the Press should be permitted Enemies would have it equal with Friends Papists with Protestants Hereticks with Orthodox Secondly They would Print Blasphemy Idolatry Treason Rebellion Vncleanness Calumny Reviling Derision and all manner of Heresie Answ 1 To the First is answer'd 1. That it is impossible to exclude Enemies and Papists from Printing they being possess'd of so many Transmarine Presses whence they can with far greater advantage vent their matters then from any Presses in England 2. Admit they could be excluded yet in prudence they ought not but are more necessary to be admitted then Friends for those whom we use to call Friends are pessimum inimicorum genus Adulantes the worst kind of Enemies Flatterers who flatter and sooth us up in our Vices and destroy us but any truth of our Faults we shall never hear but from Enemies Plutarch therefore calls an Enemy a School-Master which costs us nothing 2. As to the matters of Blasphemy Idolatry or Uncleanness neither Enemy or Friend will so far dishonour themselves or their Cause as to Print them openly for it is against their interest As to Treason or Rebellion who that hath an Enemy doth not desire to know before-hand wherein the strength of his Cause as well as of his Forces lies and to have the War Proclaimed in Print before it begin that he may the better provide against Besides if there were but a Law made that nothing shall be printed without the names of the Author and Printer with their Additions and Designations And that all Crimes against the publick committed by Printing should be punished by Indictment according to Law and all injuries to private persons should be reparable by the parties injured on their Actions according to Damage Who would dare make himself guilty of a publick Crime or private Injury in Print to which he had set his name 3. As to matters of Heresie such as by accident become dangerous to public safety the prudence of the Legislators may where they find cause prohibit them both Press and Pulpit but not in the Thoughts and Consciences of Men As in the end of the Wars of Germany between the Lutherans and Catholicks it was Enacted mutually on both sides on pain of death That no Catholick should Preach against the Lutheran Doctrine or Lutheran against the Catholick but both should enjoy the liberty of their own Consciences to themselves This agreement was here made otherwise those bloody Wars would never have ended without a total destruction of one of the Parties And likewise such a Law were here much more necessary between dissentient Protestants who were Brethren then it was between the Lutherans and Catholicks who were mortal Enemies That no dissentient Protestant should Print or Preach publickly on any point of Ceremonial dissentiency or other matter not necessary to Salvation except in such matters as are particularly allowed by Supream Authority to exclude Popery there being Field-room enough in the Moral Law of God to exercise gifts in Preaching and matters which have the promise of this life and of that to come and no cause for any to complain who have liberty likewise of Conscience to use what Protestant Ceremonies and Form of Worship they will to themselves though they have not power to compel the Consciences of others who are dissentients But if Protestants are tolerated to Print or Preach against one another this is the thing the Papist would have and knows will in the end make them both a prey to himself But though Protestants ought not to preach one against another yet the juncture of Affairs being not at present in great Britain as before mention'd in Germany and an appearance of War Plotted by the Papist rather to begin than end with the Protestant the Bishops ought not to be suffer'd to interdict either Press or Pulpit to the Protestants against them To come at length to the further mischiefs insuing the Interdiction of the Press any Interdiction of the Press except in Cases before mention'd either to Friend or Enemy is a dishonour to the Protestant Religion as if it dared not suffer it self to be disputed or to meet an Enemy in the open field whereas in truth it is not Protestancy but Episcopacy 'T is not the Moral Law which is the Protestant Law but the Ceremonial which is the Popish Law which dares not encounter the shock of an Enemy And 't is Fiction and not Truth Vice and not Vertue which fears either Press or Pasquil 2. The Foreign Presses being impossible to be interdicted to the Papist if the English are interdicted to the Protestant he is thereby silenced and prohibited to answer the Papist let him preach what he pleaseth 3. By Interdiction the profit of the English Protestant Print-houses will be transported to Foreign Papists which will be a great discouragement to so necessary a Trade in England and prejudice to the Protestant Religion and Policy 4. The Interdiction of the Press will multiply the greater evil
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
fit opinion for Aretine but for no modest Lawyer or Physician Surely God never commanded these Precontracts nor these Adamite Interviews Marriage to be private and unknown except to the Parties themselves Con-Thalamation before Con-Templation for after Adam and Eve were Married as soon as they understood themselves they got Fig-leaves to cover their Nakedness and Nox amor Night-shades and secret places by Nature joined them rather than the sight of the Sun It is more warrantable therefore as to Precontracts to follow God who never commanded them but Popes and Priests who keep them up for their filthy Lucre and far more modest is it to make Marriage-Contracts in Thalamo than in Templo Conscius omnis abest nutu signisque Loquuntur and the same Poet gives as good further Councel to either Si piget in primo limine siste pedem the Woman may rise up illaesa Virginitate and illaeso pudore and as Boaz bid Ruth Cap. 3.14 Let it not be known that a Woman came into the floor But Si in hoc Convenimus ambo and they agree so well that Conception follows and a Child is born were there neither Priest nor Temple within an Hundred Miles yet it appears God was there who gave Birth to the Child therefore as they will answer it before him this Marriage is indissoluble by Pope or Caesar or any humane Power I conclude therefore Marriage ought by the Law of God to be Private and not Publick and Conthalamation ought to be before Contemplation if the Parties have any Contemplation at all 2. It gives the Bishop the Monopoly of all Women and their Goods For he claiming to be Judg of Marriage and Divorce above Appeal the greatest part of the Year and fittest for Marriage they cannot Marry without his License for which they must pay Money and when Married they lie at his Mercy whether he will part them again or no for what he doth there is thence no Appeal if he do admit them to live together and death part them yet no Jointure no Divorce no Thirds no Aliment unless he will vouchsafe his Certificate for which they must pay Money and this they get if they obey his Canons and are Married by a Ceremony of a Priest in a Temple if they come not to yoak themselves by his Ceremonies then he calls them Whores and exacts from them Money by Penance seeing they would give none for Fees and sets what Rates and Taxes by Fees or Penance as he pleaseth so by his Power of Compulsion to this Ceremony he Levieth his Rents on Obedients and Disobedients and sheers both his Sheep and his Goats by having the Power of Compulsion of them to this Fold of his Temple and without it the same could not be done 3. It gives him the Monopoly of Successions both in Private Families and Kingdoms For he claiming to be Judg of Children as well as Parents above Appeal they all lie at the mercy of his Judgment no Right of Primogeniture no Filial Portion no Rationali parte no Hotch-pot no Collatio bonorum no Aliment can be had although they starve unless he vouchsafe his Certificate of what he knows no more than the man in the Moon Yet could he not exercise this Power over the Children had he not Power to compel the Parents to this Ceremony of their Marriages of a Priest in a Temple 4. It gives him Power to Judg of Marriage Filiation and Successions by Fictions How great and how wicked the Power of Judging by Fictions is hath been before mention'd and the Primary Fictions enumerated 1. That intention of mind and not Conjunctions 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. The Secondary Fictions and damnable Mischiefs which ensue out of these Primary for as uno absurdo dato mille sequuntur So uno Falso dato mille sequuntur have been likewise before mentioned and shewn at large 1. That if a Man deflower a Virgin with whom he may lawfully Marry and get her with Child or hath many Children by her that he may notwithstanding desert her and Marry another by a Priest in a Temple deflower'd or begot with Child by another Man and the latter and not the first is his Wife and Child P. 88 89. 2. That a Child is not Sib or Kin or of Consanguinity or the Child of the Father who begot or the Mother who bare him or they of him P. 154 155. 3. That by the pronunciation of the words by the Priest that the Man and Woman are Man and Wife the Man is transubstantiated into the Woman and the Woman into the Man and two Persons into one Person and the multitude of mischiefs incident to this Fiction of Transubstantiation are shewn at large before P. 66 67 c. But 't is Compulsion to the Ceremony of Marriage by a Priest and in a Temple is the Causa sine qua non neither the said Primary or Secundary Fictions could be made nor could any of those manifold mischiefs before mention'd ensue from them and if dissentients in Conscience and differents in Convenience had but that liberty permitted which by the Moral and immutable Law of God they ought to have to Marry without the Ceremony of a Priest in a Temple the Bishop could not inslave themselves and their Posterity their Religion Liberty and Propriety to his worse than Arbitrary Judgment to a False Judgment a Lying Judgment a Judgment by Fictions had he not the Power to compel them to this Ceremony of a Priest and a Temple So that were there nothing else to be said against this Compulsion but that it causeth so great a mischief as Judgments by Fictions it were enough to make it abhor'd by God and all good men For grant but one Fiction in Religion it will Spawn a Thousand Heresies and grant but one Fiction in Judicial Proceeding it will Spawn a Thousand Oppressions and let the old Serpent but get in his Head he will draw in his whole Body à Vero non declinabit Justus Justice comes from the God of Truth and not from the Devil who is the Father of Lies 5. It causeth in the Rich Excess and Vanity of Apparel Tilting Turneaments Masking Gluttony Ryot and Drunkenness When there is a Marriage intended by a Priest in a Temple the Bride is drest like a Bartholomew-Baby or one of the Popish Saints to be the Idol of the Place then no Text shall be Preached on but her Clothing is of wrought Gold though far better Doctrine and more proper for such an occasion doth offer it self Isa 3.16 And 1 Pet. 3.3 Whose adorning let it not be that outward adorning of plaiting the Hair and of wearing of Gold or of putting on of Apparel The Turk in his Frugality may rise in Judgment against Christians for one Christians Wife costs him more than
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
Title of very good if it had been put in Latine might have been more Complementally express'd Optimo had it not been a Danger lest Maximo would have been added whether the Title of very good given to man is always as great a Fiction as the Titles of Sanctus Clemens and Pius given to Popes may be always doubtful in regard Christ himself in Humility refused the Attribute of Good which is a degree under very good Luke 18.19 And Jesus said unto him Why callest thou me good None is good but One that is God but this Title very good is sometimes certain and not doubtful to be a Fiction when it is attributed to the Leudest Person known the Letter begins After my very hearty commendations to your Lordship This when there is a Mortal Feud between the Chancellor and the Lord must be a Fiction Whereas there hath been of late a Bill of Complaint exhibited into the Court of Chancery against you by H. O. Gent. I have thought good to give you notice thereof rather by these my private Letters than by awarding his Majesties Ordinary Process This if no Bill is come in is as great a Fiction and Falsity in a Private Letter as in a Subpoena and it were far fairer dealing with any Noble-man as well as a Poor man if J. O. first took his Oath of Calumny to his Bill and then made him according to the Precept of Christ an Oblatio Libelli and sent him a Copy of his Bill by his own Letter before he troubled him with a Chancellors Subpoena or Letter and made Use of them only on Probation and declaratory Sentence of Contumacy first obtained and after that obtained far fairer dealing it were with J. O. or any Poor man to grant the same Process of Contumacy that a Noble-man shall have against a Poor man and not put him to the extraordinary cost and incertainty of a Chancellors Private Letter to a Noble-man seeing by Law he ought not to receive any Private Letter from him and such Noble-man ought to be punished by the Civil Law de Ambitu and by the Common Law for Maintenance if he send any and this Justice would prevent Fictions both of Poor and Rich and bring forth Righteousness and Truth The Letter goes on and says Wherefore these are to pray your Lordships to give order for the taking out of the Copy of a Bill and for the putting in of your Answer thereunto according to the usual course in such Cases accustom'd at or before Octab. Hill next ensuing By this Prayer here is a Fiction that the old Episcopal Chancellor had an Imperial Authority over the Commons and only Precarious over the Nobles and was a Fiction if he derived his Authority from the King of the weakness of the Royal Power and of a Dishonour to it as if it was not able to do Justice to the Commons against the Nobles as well as to the Nobles against the Commons if a Sheriff at Common Law should Execute his Praecipe quod reddat and his Praecipe quod faciat whereby he is will'd by the King to command those against whom those Writs are directed by writing his humble Letters when he perceives they concerned Noble-men to pray their Lordships to do what he was appointed to command the Law makes him liable to high punishment and why a Chancellor should not be liable to the same who commits the same offence and having the Kings Process to command in his hand will not or dares not administer Equity by the same equal Process to his Majesties Subjects both Poor and Rich appears no reason or rather an higher Quanto Major qui peccat habetur by how much greater the Power of a Chancellor is extending to a Kingdom than of a Sheriff confined to a single Countrey The next in the Letter is Nothing deubting but that your Lordship will have the care and regard which appertaineth but another man may doubt whether he spake Truth or Fiction He concludes well if not in Hypocrisie I leave your Lordship to the most Merciful keeping of the Almighty from Saint A. the 9th of May 1654. Your very loving Friend J. P. Prolixity caused by Fiction The Bill in Chancery for want of the Oath of Calumny is known to be commonly a Pack of Lies from beginning to the end which is full of infinite Mischiefs and destructive to all Justice and makes it of such immense Prolixity for Lies may be infinite but Truths are few and short that it compels the Answer to be longer than it self for every Lie must be Answer'd as well as the Truth and by reason of such Prolixity neither the Chancellor as he ought to do will take the pains to read nor the Councel to be instructed in either but the Truth like a Grain of Mustard-feed thrown into an heap of Tares is lost and impossible to be found and Sentences and Decrees pass'd both Interloquutory and Final without the least Merit of the Cause Started Stated or Debated The Process of the Chancery is almost as mischievous a Fiction as the Outlawry at Common Law which is the Commission of Rebellion that on non-appearance the most Loyal Subject that is may be Feigned Proclaimed and Imprisoned as a Rebel so the Chancellor needs nothing but a Fiction to elude Magna Charta and the Petition of Right and an Hundred Acts of Parliament more if they were made to that purpose to which the Fiction is point blank contrary and destructive and as inconsistent with all the Fundamental Laws of Liberty and Propriety as Darkness with Light yet is there no necessity of it at all for where it is not necessary to take the Defendants Oath but the Plaintiff can prove his Bill by Witnesses full Justice may be done either by Missio in Possessionem where the Action is Real or where it is to stop Suits by the English Injunction or Scotch Suspension and where the Defendants Oath is necessary either for Discovery or Probation on proof made of the Bill and of the Countumacy and Sentence Declaratory a Capias may be awarded against the Defendant as after a Judgment pass'd Fictions of Latitats If we go to the Common Law Process that is as bad infected with Fictions as the Court of Conscience The Latitat is a meer Lie first it supposeth a Bill of Middlesex to precede where there is no such matter then the Defendant is slander'd Latitare discurrere when he lives as openly as any of his Neighbours and never stirs from his home the suggested Latitations are therefore Lies Then it saith De placito Transgr ' Ac etiam for if the Ac etiam be true of Debt then it is false as to Trespass for there can be no Joindure in Action of Debt and Trespass in the same Writ and so the Kings-Bench ought to have no Jurisdiction of Debt notwithstanding this Fiction except on a Writ of Error which is upon the matter confess'd by Coke himself
Lives by Fictions I hope such Popish Fictions will no longer be suffer'd in Protestant Courts of Justice Coke saith From the taking away of Oaths for the truth of the cause of Essoin by the Statute of Marlebridge cap. 12. there arose after Fourcher per Essoin by several Tenants alternis vicibus and making false Essoins ultra mare all endeavour'd to be taken away by Westm 1. cap. 43. 44. but when a mischief comes by making an ill Law or Statute it is never cleanly cured by after Statutes of Explanation or Limitation without clean repealing again the Statute which causeth the mischief additions of new Patches to old Garments making the Rent but worse Fictions in Essoins The mischief of Fictions of Husband and Wife to be but one Person have been sufficiently shewn P. 66 67. Fictions de Plus petitionibus In the Common-Law Declarations the next Fictions for want of the Oath of Calumny are de Plus Petitionibus Conrad 405. saith Olim triplum condemnabantur qui majorem Summam in libello assignaverant quam reus debebat but in more ancient times I find they forfeited only the Tenth part which with an Oath of Calumny might be now sufficient to restrain the lawless laying of Debt and Damage in their Declarations an Hundred times more than it is which is very mischievous and dangerous to Defendants when Plaintiffs pack and bribe Juries and they happen to misplead make defaults or have other Casualties fallen on them whereby they cannot attend their Suits Dr. Cowell says The Civilians are in no danger de Plus Petitionibus by reason of certain Cautelous Clauses they ordinarily have at the end of every Position or Article of their Libel or Declaration to this effect Et ponit conjunctim divisim de quolibet detali tanta quantitate vel summa qualis quanta per Confessionem partis adversae vel per probationes Legitimas in fine litis apparebit and again in the conclusion of all Non astringens se ad singula probanda sed petens ut quatenus probaverit in praemissis aut eorune aliquo eatenus obtineat But Civilians and Canonists make their Laws like Juglers-knots to tie with one finger and untie with the other they make a great noise of their Oath of Calumny and de Plm Petitionibus and by these secret Clauses in their Libels make it all again to no purpose All the Common Law Writs of Questus est nobis are now grown Fictions and Declarations Licet saepius Requisitus are likewise Fictions whereby men are surprized by Arrests before any Demand made the Inde producit sectam in the end of the Plaintiffs Declaration is now turned a Fiction which was heretofore a legal proof of Witness produced to prove his Declaration for the better Caution against the false Calumnies of Plaintiffs the former Taking of Pledges of the Plaintiff is now turned to a Fiction of Plegii de prosequendo John Doe and Richard Roe the Counter-pledges exacted of the Defendant are now turned to a Fiction John Den and Richard Fen. Courts of Justice compel to Fictions and Falsities It doth not satisfie Courts of Justice to tolerate Fictions and Falsity but they compel to them as the Defendant shall be compell'd to give colour a meer insensible Fiction and Lie he shall be compell'd at Common Law to answer Negatively or Affirmatively as if he were Omniscient and shall not be permitted to say Dubito or Ignoro though Juries of greater number may all say Ignoramus he shall be compell'd to a Plus petitio to avoid a Variance between his Obligation and his Declaration as Bro. Confess 37. If a man Sue an Obligation for Ten Pounds and the Defendant confesseth all except Forty Shillings whereof he sheweth an Acquittance the Plaintiff prays Judgment and says nothing of his Acquittance for if he confess it his Writ should have abated Fictions of Acts made the first day of the Session If an Act of Parliament come before them to judg when it was made they will judg it by Fiction to be made the first day of the Session 33. H. 6.17 the Case was this In the Exchequer-Chamber Fortescue Rehearsed how the Parliament last past made a special Act against John Pilkington Esq for the Rape of a Woman out of N. c. and Rehearsed the effect of the Act and how by the same Process was granted to be made to the Sheriff of E to make certain proclamations in a Ville that the said John ought to appear before the Lords at W. at a certain day c. to answer to the Trespass contained in the said Act c. and if he would not that then he should be attaint of the Trespass and pay a certain Sum to the Party c. and that the Proclamations were accordingly made and returned into Chancery and the said John made no Appearance c. and after the said John was taken and in the Kings-Bench committed to the Marshals-Ward for certain Causes on which a Transcript of the Act and a Mittimus was sent out of the Chancery directed to us c. whereupon the Marshal was charged with him for the same Condemnation contained in the Act and the said Prisoner comes now and alledges by his Councel That the Act of Parliament is not sufficient and therefore prays to be discharged c. for the Bill being directed to the Commons pass'd them well and was endorsed in this Form Let it be delivered to the Lords but whereas the Bill was That the said John should render himself before the Feast of Pentecost next ensuing the Lords endorsed the Bill in this Form The Lords grant that in case he appear not before the Feast of Pentecost which shall be Anno Domini 1452. c. to wit at Pentecost next after the Feast contained in the Bill And therefore the Lords granted a longer day then was granted by the Commons in which Case the Commons ought to have had the Bill deliver'd back again to them and they to have assented to the Grant of the Lords which was not done and therefore such Act of Parliament is void Fortescue It seems we ought to intend no otherwise but that the Act is good for the King hath written to us by his Writ and hath certified unto us That the Bill is confirmed by Authority of Parliament Illingworth Chief Baron This cannot here be intended as you say for the Writ which is made only by a Clerk of the Chancery cannot make an Act of Parliament good if it be vicious in it self c. And afterwards he sent for Kirkby keeper of the Rolls and for Faukes Clerk of the Parliament Fortescue Rehearsed the matter to them both on which Kirkby Sir The course of the Parliament is this c. But if any Bill is particular or other Bill which is first deliver'd to the Commons and pass'd they use to endorse the Bill in this Form Let it be
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
Moral Law of God of Truth and Equity neither if these Writs were Formed according to the Truth and Equity of the Moral Law of God is it possible a sufficient number should be Formed for Writs are finite and Cases of Equity infinite and not to be put in Writs or written except by God in the Fleshly Tables of the Heart and in the Spiritual Tables of the Soul it self and Conscience It will be asked How could they subsist before H. 6. without a Sub paena and Equity from a Chancellour seeing the Common Law Writs could not supply it and what expedient is there now how Equity may be supplied To which I answer That Equity was then supplied by the Writ of Right and Justicies the Titles of both which Writs signifie Equity and likewise other Writs and the General Issues Formed on them of the Meer Right Not Guilty Null Tort Null dissersint Nihil debet guided the Jury to find according to Right and Equity by the Moral Law of God and not the Ceremonial Law of Man till the Judges to wrest the Power belonging to Jurors into their own hands brought in the Tender of the Demy mark to turn the Issue of meer Right into a Possessary Issue and instead of Truth brought in the Pictions of Colours destroyed the Justicies by Writs of Remover gave way to false Laying of Counties in Transitory Actions changed Venues granted new Trials abated Declarations for Variance from the Bond and not Sueing for what was paid as well as for what was not granting Arrests of Judgment after Verdict and not permitting to demur first to the Law and after to plead to the Fact before Verdict prohibited on the Issue Not Guilty matters of Justification to be given in Evidence admitted Demurs to Evidence admitted special Verdicts caused Juries to be of an even and not of an odd number and the Verdict not to be according to the Plurality of Votes and many other ways they had to weary Juries from giving a Verdict according to Conscience and Equity or when they had so given it to same I conclude therefore to compell men to Commence Suites by Writs in the present Age is to condemn them without Hearing of the Equity and Merits of their Cause and to compell them to revive again those Ancient Writs and trie Equity by Juries hath many great inconveniences before mention'd to be incident to all Writs especially such as are Antiquated and not understood but all these mischiefs are salved by Commencing Suites by a Copy of the Declaration Sworn in stead of a Writ which cannot be Sworn and a Judg Commissionated with Jurisdiction of Fact Law and Equity under Appeal which single Judg in a Court by himself sitting without Vacation as a Chancellour hath Power to do will no doubt be able to dispatch more Causes without troubling any Writs Juries or Councel at the Bar and more justly and under Account in one Year then 't is possible for any Chancellour with Plurality of Offices or Court with Plurality of Judges Juries and Councel at the Bar to do in Seven 6. Men are condemned before Hearing on the Capias Vtlagatum and Excommunicato Capiendo A Satyr on a Papist and a Protestant Imprison'd one on an Outlawry the other on an Excommunicato Capiendo against Imprisonment before Hearing A Papist and a Protestant Who used when they met to Rant About the Altar and the Rail Were both together Clapt in Gaol The first was catch'd by an Outlawry The last whose Conscience did vary From Bishops and their Common Prayer As Felon or a false Betrayer Was therefore Excommunicate And put to beg within a Grate Pap. Brother then quoth the Papist sad Are Protestants too grown so mad To have an Inquisition here Who thus can though no cause appear Forfeit our Goods and Selves at will In Prisons cold to starve and kill Before they Hear us doest not know Amongst our selves it is not so Who by Experience wiser grown Will Inquisition now have none Witness the Rich Venetian And wary Dutch who late began For Liberty against such Lords And Swisse with their two handed Swords For this Proud Aragon Rebell d And Naples Silk-men hardly quell'd And many more abhor'd such Tricks Yet are they all good Catholicks So Holland justly now prevents Imprisonment of Innocents And makes to help the Poor opprest Before a Judgment no Arrest Is this the Charta and of Right Petition for which you fight That every ' Torney and his Clerk Who use to live upon the shark Forge all the Outlawries they please Remedies worse than the Disease And that Poor men may be betray'd First Forge the County where 't is laid They Forge and Antedate the Writs Of Parchment cut in little Bits Then next they Forge the Sheriffs name And Forge Returns upon the same They Proclamations Forge and Feign And Exigends next without pain And all this Knavery you may spie Page Sixth of the Academy Which is their Mother and their Nurse Teachers to Forge and Steal of course Such Clerks deserve hanged to be As Nicholas Clerks upon a Tree And thus though made them to prevent They fool all Acts of Parliament For no Averment must deny The Shrieve or Clerk although they lie Is this the Liberty so proud You use to cry it up aloud And Property you so much Vant That every Papist it doth want What Purgatory can you tell Is worse than this on Earth your Hell Or what Hell is there more worth fearing Than Your Damnation without Hearing He neither shews me Time or Place Nor Witnesses brought Face to Face My Goods are all Confiscated My very Wives and Children's Bed The Bailies Seised without account Of Price to what they did amount Or Witness Writings Boxes Chest And Money too on a Suggest And Lies and Fictions in worse case I am than Felons in this Place Their Goods although the Law is strict Not Forfeit are until Convict But left to feed them Oh the blest Justice is shewn to men distrest By Protestants who only you Say have the Religion true But Christ says Know them by their Works Which shews you worse than Jews or Turks I have not left a Bit of Bread Witness these unfeign'd Tears I shed The Plaintiff asks of me a Sum As at the Dreadful Day of Doom I answer shall and God doth know I do not him a Farthing ow Yet can I not although I try Be brought to answer or deny His Forged Stuff or see the Face Of Judg or Jury on the Place But here to perish am designed And to this Dungeon confined Unless I give what e're he 'l ask This is my miserable Task I think you now turn Witches too The Rogues the mischief who did do To bring me here sure had a Spell What Language 't was I cannot tell 'T was written in a little scrow Half-words and dash't that none might know Or ratâ—er scratch'd it was in Soot With Devils Claw or Cloven Foot Prot.
Brother yâ—ur self when Caught you find In snares for others you designed Learn Who ill Principles extends Against his Foes destroys his Friends And when for us you dig a Pit You are the next fall into it It was your Church what er'e it saith Law Latine left and Latine-Faith And Babbled without Mood or Tense In Church and Court and without Sense That blind might lead the blind and they Rob so all pass'd through their dark way You before Hearing first did Curse And Oulaw too to take a Purse Of which too late you now complain And we to help have tri'd in vain The Papist too brought Fictions in And Forgery that foulest Sin The Papists too were the first sharks And sate in Courts Bishops and Clerks And left their Cursed Presidents Of Forms for their wicked Intents Which still continue now and you As well as we begin to Rue At least the Poor of either side Though they touch not the Prelat's Pride And if you Perish by the same Who but your selves now can you blame The Protestant at length Essai'd Although by greater Power dismai'd Forms Fictions and Forgeries By Papist left to blind the Eyes Of Justice and Religion And in a Language still unknown And the High Places of old Baal Which did both Souls and Bodies Thrall To take away and teach their Youth Worship in Spirit and in Truth And Justice too by those who swayed In a True Ballance to be weighed For Fictions and Forgeries Come from the Father of all Lies But still the Protestant in vain To Supreme Power did complain While Papist-Peers in Parliament And Pensioners the Publick Rent Force from the Common's Skin and Bones It was in vain to make our moanes From Justice then with many Jeers You kept and first made us shed Tears Although deceived in your hope Perhaps now from your selves they drop And you and we suffer alike From strokes which you and us did strike Am I not in as bad a Case As you within this Dismal Place And me to make yet in a worse They Outlaw may as well as Curse You have unto the Dreadful Doom Of God Appeal'd which is to come You nothing owe I to the same Appeal and his most Dreadful Name I have committed no Offence ' Gainst men nor ' gainst my Conscience For which I 'm Sentenc'd to lie here And be your Fellow-Prisoner Who Rule the Conscience can but God Or who can change it with a Nod I see not when the Bishop winks Or if I think not as he thinks Or cannot by Implicit Faith Believe what e're the Bishop saith Is' t just because that I cannot I should lie here to Starve or Rot Pap. Brother I 'le freely tell my mind And say where Protestants are kind To Catholicks in Recompence They each enjoy their Conscience And Toleration hath united Not only those before Recited But bloody Wars could not be ceased In Germany 'till Conscience eased On each side was in the same Nation By a mutual Toleration The like in Hungary was acted And no Peace there could be transacted Between the Emperor and them 'Till Grafted both on the same Stem And many other like appear Too many to be Cited here They are not Commons but our Peers Who set us both now by the Ears They Pensions take from Rome and France Poor Us to Tyburne to advance And with some part when 't is espi'd They Pardon Buy and us Deride Why then should English Freedom miss More than our Neighbour Dutch or Swiss Or Driven be to Gaol or Church Conscience and Justice both to Lurch Prot. Brother I 'm not so void of Sense As Punishment on Conscience To wish who in so high degree Suffer for it my self you see But on what Terms the wiser State Will both Religions Tolerate I cannot tell or if no fears They have of Poor but only Peers I know not only this I say We should small Prudence then bewray To trie for others and in vain 'Till our own Liberty we gain Pap. Yet we in this do both agree Though Toleration none there be And both alike for this contend That whether he is Foe or Friend Yet before Hearing he ought not In Cruel Prison Starve or Rot And Magna Charta none can be Of Property or Liberty Unless 't is in the same Expres't Before a Judgment no Arrest 7. The Three Kingdoms condemn one another without Hearing by a Non-Union of their Three Parliaments Of the Fatal Danger threatning all Protestants by the Division of the Three Parliaments of England Scotland and Ireland and the inestimable Benefits ensue the Union of the same in one House Unless the Supreme Judicatory is rightly constituted to Judg between the King and his Subjects Church and Church Kingdom and Kingdom Nation and Nation Possession and Succession and between one Subject and another it is in vain to constitute inferior Judicatories to any of those great ends of Preservation of Religion and Justice Peace and Truth Liberty and Propriety for there being no Supremeequal Judg constitute there will-be no inferior Judg equally constitute and being no equal Judg Supreme or inferior if Kingdoms happen to become Plaintiffs and Defendants one against another for Religion or any other Quariel they are necessitated to condemn one another without Hearing because they agree not by what Judg they will be heard but will like the Scythians worship the Sword and Fortune for the Gods and Judges of the World and begin their Sute one against another with Execution by the unjust Capiases and Outlawries of War and Proclamations of the same by the Trumpet 1. First therefore the great danger these Three Protestant Kingdoms lie under is If any Papist should again as they have by their perpetual Plots hitherto endeavour'd to kindle a Civil War there can be nâ— Judg equal Elected by them able without the Persons Elected sit in one House to punish the Incendiaries and prevent the War Succession of the Crown divided by divided Parliaments 2. If the Succession of the Crown should happen to become contentious between Competitors and the Parliaments continue as they do divided in several Houses and several Places the Three Kingdoms if they depart from the immutable Moral Law of God either to the Ecclesiastical Laws of their several Churches or to the Temporal Laws of the several Kingdoms they may each have several Laws Privileges and Customs of Succession one from another and the Houses of Lords may have different Customs and pretences to Judicatories from Houses of Commons and the Episcopal Assemblies and Synods may pretend several Rights of Judicature from the Law-Courts so every Kingdom may happen to be divided in their Sentence of Succession and one to Judg it to A. another to B. another to C. the House of Lords in one to Judg it to D. in the other to E. in the other to F. the House of Commons to Judg it in one to G. in the other to H. in the other to
in the Fees are mention'd Stat. Mal. 2. cap. 2. that is to say 1. To Seal Writs 2. To Seal the Kings Pattents Grants and Commissions 3. Presentations to Churches 4. Pardons to such Malefactors as deserve them which Statute of Malcom 2. cap. 2. follows in these words 1. Item They Ordained to the Chancellar the Fie of the Great Seal that is for ilk Chartour of an Hundreth Pound Land and above that the Fie of the Seal Ten Pounds and to his Clerk for the Writeing twa Markes 2. Item For ane Precept of Suising conform to the Chartour to the Chancellar for the Fie of the Seale ane Mark and to his Clerk twa Shillings 3. Item For ane Letter of Attornay or Protection for the Fie of the Seale Twelve Pennies and to the Clerk for the writeing Thrie Pennies 4. Item For ane Brieve closed with Walx to the Chancellar Sex Pennies and to the Clerk for writeing Thrie Pennies 5. Item For are Letter of Remission given by the King for the Slauchter of a man to the Chancellar 40 Shillings and to his Clerk for the writeing Sex Shillings Aucht Pennies 6. Item For ane Letter of Presentation to ane Kirk or to ane Hospital to the Chancellar 40 Shillings and to his Clerk for writâ—ing Aucht Pennies 7. But that part of the Office of the Chancellour of Scotland which concerns Original Writs is since Reformed and all Writs Abolished except Seven Only Seven Writs left in Scotland which Skene de verb. sign tit Breve recites thus Bot Seven Forms of Brieves all anerlie are now commonly used The First The Brieve of Mortancestrie The Second The Brieve of Tutorie The Third The Brieve of Idiotry The Fourth The Brieve of Terce The Fifth The Brieve of Line or Linâ—ation of Lands and Tenements within Burgh The Sext The Brieve of Division The Seventh The Brieve of Perambulation Quhair of the Three first Brieves are Answer'd and retour'd again to the Chancellary and the uther Four receives na retour'd Answer And in all other Actions instead of Writs by an Act of Parliament of James the Fifth after mention'd the Defendant ought to be served with a Copy of the Declaration to begin the Suit Only one Writ in Wales for Real Actions Writs pull men out of their Houses Beyond Sea In Wales and some parts of the North they Trie all Real Actions by a Quod ei deforcâ—at 8. The mischiefs of Writs are they pull men out of their Houses before Judgment contrary to the Civil Law ff siquis in jus vocatus non ierit l. 21. de Domo sua nemo extrahi debet which is expounded by Bartolus Invitus quis de domo non debet extrahi sed ibi existens potest verbaliter citari contra contumacem fit Missio in possissionem 9. Writs help not for any matter rising beyond Sea unless by Fiction of the place beyond Sea to be in England so honest men are without Remedy and only Liars obtain it No Oath of Calumny can be to a Writ 10. No Oath of Calumny can be given of a Writ whereby it becomes full of Falsities and Fictions but to a Bill in Chancery or Declaration an Oath of Calumny may be given which will purge it from all Falsity and Fiction if no Writ but if there is a Writ false it will compell the Declaration to be false because it will otherwise be abated for Variance from the Writ 11. Writs make Declarations to be of double length and contain two Declarations one a vain repetition of the other for 7. H. 6.47 In every Action on the Case the whole Cause of Action at large ought to be contained in the Writ for it is not sufficient to have a general Writ and special Count whereby the Party is compell'd to Enter and the Defendant to Copy a double Declaration of huge length and often twice as long as a Chancery Bill and Four Judges on Demurs to have each a Copy and of the whole Process to the intolerable Charge of Suitors and Gains of Clerks and Officers of Courts though it be but a trifling Action for Words or the like 12. Writs must pass the hands of Under-Sheriffs who often times will delay and betray them as long as the Party will give them Money 13. The old Writs which are in the Register and all the new which have been coined or joined by Chancellours or Clerks are defective and insufficient to supply Justice in the multitude of Cases which happen 1. Because the greatest part of the Writs of the Register are Antiquated and never used but remain as Forms out of Fashion and matters as unprofitable Lumber 2. All real Actions are thrown aside and the truth is Lawyers are so ignorant how to manage them that like the old â—ion in his Den they draw all their Clients into Chancery whence Vestigâ—a nulla retrorsum 3. The two old Principal Writs of Droit Patent and Novel Disseisin the one to determine the Right the other the Possession no Lawyer now knows in them to join the Mise or arraign the Assise any more than he doth when he talks of Robin Hood to Shoot in his Bow whereby the two chief Writs which dispatcht more Justice than all the rest are utterly lost 4. It is as impossible for a Chancellour and Clerk though they make in their Officina Brevium a Thousand Forms of Writs more than they have to fit with them all that want Right any more than for a Shoe-maker in his Officina Calceorum though he hath a good stock of Shoes ready made to all the Feet with them which want Shoes yea more impossible for the Shoe-maker makes his Shoes of soft yielding Leather his Straps or Buckles open or shut them wider or closer his Shoeing-horn Weesel-skin or Fists draw pull and thump them off and on and many pretty tricks and Instruments he hath to curry shave stretch punch oil water and stand them on the Last to accommodate them for the Foot but a Chancellour makes all his Writs of Iron or Latine and puts in them so many Gravels of Fictions Falsities broken Words Repugnancies Absurdities Nonsense that it kills or creeples any Case to walk from its own Home to Westminster 5. That there is an intolerable defect in Writs to supply Justice to the People appears in this That though all Originals come out of a Court which inâ—itles it self a Court of Conscience and Equity yet there is not one Writ to Remedy a particular Case of either nor any Action on the Case for a Case of Conscience or Equity arising from the Moral Law of God but all fall down and worship the Themis or Great Idol of the Ceremonial Law of Man of Livery and Seisin Fines Recoveries Inrollments Writings Seals Forms of Entries Forms of Pleading Forms of Words Fictions and the like which are not able to give a Right to the least foot of Land or handful of Goods nor any other Law than the