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.
the Doctrine of Christ for ab initio non fuit sic that a verbal Contract of words should pretend above the real Contract of carnal knowledg And the Lady Grey though it doth not appear but that she was otherwise a very vertuous Lady yet if she knew the truth of what is before mention'd concerning the Lady Lucy she cannot be excused in taking that Husband to her self who had already given the first pledg and made the cheif and real Contract of Marriage with another Woman and far happier might she have been if she had ascended a meaner but more lawful Bed for the Earl of Warwick at his return home from France finding by this Marriage his Embâ—ssage frustrated the Lady Bona deluded the French King abused and himself made a stale and the disgraceful Instrument of all this deeply resented and waiting his time raised an Army and by surprize took the King Prisoner and presently conveyed him to Middleton-Castle in York-shire to remain there in safe custody with the Bishop of York where if he had not by fair words and Money gotten his Keepers to permit him the recreation of Hunting and thereby means to escape he had lain at Mercy And after he was escaped and had gather'd sufficient Forces whereby he made the Earl of Warwick fly to the French King where he was honourably received yet the Earl returned again so Potent with the French joined with the great party he had in England that the King was fain to fly to Burgundy and the new advanced Queen to take Sanctuary at Westminster And though her Husband again returned and by a hazardous Battel wherein Warwick himself and many other Lords were slain he recover'd again his Kingdom yet he had so little quiet and less security that what injoyment she obtained of him was always in fear and danger of the Field and other Competitors of the Bed after a man guilty so more unhappy then her self and when she lost him by death she lived to see those Remains of him he had left her two hopeful Sons most cruelly Murther'd and for the conclusion of all her self confined to the Monastery of Bermondsie in Southwark and all her Goods confiscate by her own Son in Law Henry the Seventh yet no just cause appearing against her In which Monastery in great pensiveness within few Years she died There is a Case reported by Sir Jo. Davies and likewise mention'd by the learned Dr. Godolphin in his Repertorium Canonicum 488. to have happened in Ireland which was this G. B. Esq had Issue C. B. on the Body of J.D. whom he had never carried to Priest or Temple but his Son C. B. Desertion of a Woman after a Child for a richer in Ireland was begot by natural marriage without any Pontifical Ceremony About Sixteen Years after G. B. having found a Lady who was richer and of a greater Estate and Reputation then his first Woman by whom he had his eldest Son C. B. Marries her with assent of her Friends by whom he had Issue E. B. and died after the death of G. B. the said C. B. his reputed Son and his Mother being both left alive continued silent by the space of nine Years 'till they happened to have one of their Kindred Bishop of K. by whom they then were encouraged by new hope to obtain their Right who it seems not experienced in the Forms of Judicial Proceedings without any Libel exhibited and not Convocatis Convocandis proceeded to take the Depositions of many Witnesses to prove that the said G. B. Twenty-nine Years before had lawfully married and took to Wife the said J. D. Mother of the said C. B. And the said C. B. was the Legitimate and lawful Son and Heir of the said G. B. And these Depositions so taken the said Bishop caused to be ingrossed and reduced into the Form of a solemn Act and having put his Signiture and Seal to that Instrument delivered the same to C. B. who publish'd it and thereupon alledged himself Son and Heir to the said G. B. Hereupon an information is put into the Castle-Chamber in Ireland against the Bishop suggesting a Conspiracy to Legitimate C. B. Son and illegitimate E. B. the Daughter of the said G. B. And for this Practice the said Bishop and others were Censured This Case and the foremention'd Case of Kenne are both contrary one to another and both contrary to the Law of God In Kennes Case the wrong Heir is Legitimated by the nullifying of a lawful Marriage consummate by carnal knowledg and birth of the right Heir by Sentence of the Spiritual Jurisdiction and there the Common-Law will not releive the right Such Faith they say they are bound to give to the Spiritual Sentence whether right or wrong whether with cause or without cause until the Spiritual Judg revoke his own Sentence himself but here where a right Heir is made Legitimate by Sentence Declaratory of a lawful Marriage between the Father and Mother of the right Heir in the Castle-Chamber the Common-Law will Legitimate the wrong Heir and will give no faith to the Sentence of the Spiritual Judg if that they think it wrong so it seems the Common-Law in Westminster-Hall and the Common-Law in the Castle-Chamber are very contrary one to another as to the point of giving faith concerning Marriage and Legitimation to Spiritual Jurisdiction yet both contrary to right and destructive to the lawful Heir according to the Law of God and both give faith to Common and Canon-Law above the Supreme Law and Legislator Amongst the Greeks the manner of the Contract of Marriage was The Parties going to the Temple before the Priest the Man swore in the presence of Witnesses Se sponsam post concubitum invitum non deserturum That he would not after he should have lain with the Woman forsake her without her consent Arch. Att. 156. The like form of words in the Marriage-Contracts was used by the ancient Romans who shall rise up in Judgment against the Popes who unless Parties mumble the aforemention'd Nonsense of Verba de praesenti give Licence for Money to deceive and desert a Thousand though they have never so many Children by them and to make all Women common and to their own Priests to give example being interdicted all verbal Marriage that they may have the more liberty to abuse the real and to take and leave all they please and as oft as they please The like do the Guiny Priests who converse with the Devil and their form of Contract of Marriage is no doubt according as he will have it For the Woman is there sworn to the Man that she will not desert but the man swears not to her nor will oblige himself by any verbal Contract but is to be left as free as any Popish Priest whatsoever Desertion after deflouring hath caused Seditions and Civil Wars This deflouring and desertion was a while in fashion amongst the Roman Nobles and Patricians who
better Form And Brudnell agreed with Fitzheabert Brook Ch. Justice I conceive the contrary and that the conclusion is not good And Sir as to what is said that the Law is no other but that a man shall Declare his matter in Truth and good Sentence the Law is more than so for without Formality the same is nothing worth as the Form of Law is a man shall shew his matter without Duplicity of Multiplicity yet may matters more than one be True and in good Sentence but they want Formality and therefore are nothing worth and a Form ought to be used or otherwise all things will be in confusion So in Trespass the Defendant ought to give a colour of Right to the Plaintiff yet the colour is not true nor the Sentence the better but it is the Formality which is required and Formality is the chiefest thing in our Law and though the matter in the present Plea appears in Truth and good Sentence yet here wants Formality for he ought here to have concluded not Judgment Si Actio but Sic non est facium for I conceive in regard only two Convenants of the Indenture were read to him and there were more Covenants not read that the whole Indenture is void and it is Fraud in the Obligee And Pollard agreed with Brook that it was no good Plea and that the whole Indenture was void But to this Fitzherbert and Brudnell might have repli'd that admit the whole Indenture had been all void in Law for the Fraud in part and the Defendant might Rigore Juris Plead it yet Quilibet potest Renunciare juri pro se introducio if the Defendant was more merciful than the Law and his Conscience would not suffer him to use Summum jus but doth assent to perform those Covenants were read to him is it therefore Reason or Conscience that the Plaintiff for his good Nature and Courtesie should return him Evil for Good and put the Burden of all the Covenants on him because he would perform any when he needed perform none if he would have pleaded in a Form against his Conscience and that Truth ought to be prefer'd before Fiction and Formality But I leave the Merits of the Cause to others to Censure and shall only upon the whole Dispute take thâ—se Observations 1. It appears by the Case that there are but Four Judges in the Court and they are divided Two against Two Fitzherbert and Brudnell for Truth against Fiction and Substance against Formality and Block and Pelâ—ard for Fiction against Truth and Formality against Substance whence is shown that there have been and are many good men Judges and other Professors of the Law who with all their their Power Desire and long to remove those Abuses of Fictions Forms and other Irregularities which are Reproaches on the Practicers but should they afflict themselves to death can do nothing if equipoised or overpoised by the other Party therefore they ought not to be imputed to those who are not guilty but the consideration of them ought to be left to the Legislative which hath Power to Redress them when they please with a word and shall give account to God if they neglect the same 2. It may be observed how many Contentions arise about a petty piece of Formality when there is none about the Substance which is acknowledged by Coke himself Com. Lit. 303. whose words are these When I diligently consider the Course of our Books of Years and Terms from the beginning of the Reign of Ed. the Third I observe that more Jangling and Questions arise upon the manner of Pleading and Exceptions to Form than upon the matter it self and infinite Causes lost or delayed for want of good Pleading by which he means Formality hath destroyed infinite good Causes which is a most horrible thing to be Tolerated in any Government 3. The next thing observeable is The great Ignorance of Courâ—s themselves in their own Formalities for they have continued by Coke's confession Jangling and Wrangling about them ever since Edward the Thirds time and are yet never the wiser nor any perfect Form invented or settled by them they are still ever Learning and never come to the knowledg of Truth and so will be to Dooms-day if they are not by God sooner called to Account of their Stewardships and this point of Ignorance in their own Formalities is further confessed by Coke in another place where he saith It were to be wished that Littleton had writ something concerning Pleadings which shews he was but a wisher or woulder at it himself for whom if he had been able it had been far more proper to have writ a perfect Form of Judicial Proceeding than to wish the same had been done by one dead Hundreds of Years before and if he could have had him alive 't is likely he was as much to seck as himself for he could not write any directions concerning it to his own Son though it was a point above all other which he desired he might Learn and in respect of which his Tenures were but Trifles but he is fain to leave it to him as his other Quaeries de Dubiis and a Terra Incognita where he should gâ—t Rich Mines of Gold and Silver if he could light on it in these words And know my Son that it is one of the most Honourable Laudable and Profitable things in our Law to have the Science of well Pleading in Actions Real and Personal and therefore I counsel thee especially to employ thy Courage and Care to learn this Which yet neither he nor any since ever learnt or found out in this Climate neither is it possible for any to do unless those very Forms of Actions and Writs are made only Directive and not Coercive and Liberty given of Commenceing and Disputing Suits on more Solid Foundations of Right than can be laid on any Forms in the World especially on such in which the Courts themselves are Ignorant how to proceed and their so many divided and contrary Opinions in the Expositions of the Law have so intangled the cross Threads of their several Clues of unravell'd Opinions that now no Courts unless they clean break them all to pieces are able ever to get out of their own Labyrinth of Formalities and are most commonly in the pitiful Condition wherein Vigelius Dia. Jur. 477. finds his Judg who is Ignorant of the Forms of Judicial Proceeding At nunc saith he Cum Judex Litiscontestationis adeoque judicandi ratione sit ignarus sedet inter Advocatos Procuratores tanquam Asinus inter simias nescit quando Disputationes in Causa permittendae sunt quando contra sunt inhibendae hinc ne necessarias inhibeat non necessarias permittit Advocatis in infinitum Disputandi Licentiam concedit non Semel sed saepius dilationes Dat easque velex levissima causa But now saith he when a Judg is Ignorant how tostate the Point of the Cause and of the Form of
in the 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