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
Parliament Besides there is not de facto that name given for the Ecclesiastical Court is kept in the Bishop's name and not in the King's name And the Bishop takes all the profits and not the King Fain he would mend the matter and says That a Leet is kept in the Lord's name and he hath the profits yet it is the King's Court. It might better been said it was once the King 's before he gave it or sold it to the Lord of the Leet as are many Lands not being Ancient Crown-Lands The King purchases but if he sell again such Lands for valuable considerations the propriety as well as the name of such Lands is then in the buyer and not in the King Therefore though he hath set out his Book as baptized both in Latin and English by the name of de jure Regis Ecclesiastico and of the King 's Ecclesiastical Laws yet with due Reverence to the opinion of so great a Father of the Law it may be said there appears none either to baptize or confirm the name nor any God-father to it but himself Neither will the Title of the King 's Temporal Laws set upon Magna Charta which gives that liberty to every Subject of Tryal of his Birth-right per legale judicium parium be consistent with the Title of the King 's Ecclesiastical Laws which take it away and give it to a Trial by Certificate of the Bishop Object 6 It is again by Coke alledged and Precedents cited That Edward the Confessor William the First Henry the First Henry the Third Edward the First Edward the Second and all English Kings have Govern'd and Ruled both the Kingdom and the Holy Church and have given Jurisdiction to Abbots Priors and Bishops and have granted prohibitions when they transcended the bounds of their Jurisdictions and that Reges sacro oleo uncti sunt spiritualis Jurisdictionis capaces but still this is nihil ad rhombum nor pertinent to make good the Name or Title he hath set his Book of the King 's Ecclesiastical Laws For there is a great difference if he had Entitled it de jurisdictione Regis Ecclesiastica for the King's Jurisdiction and the King's Laws are clean divers things And there is a great difference where he grants Jurisdiction to Ecclesiastical Persons and where he grants them by what Laws they shall exercise that Jurisdiction for the King 's of England have Anciently granted Jurisdiction and Commissions to Ecclesiastical persons as Bishops and Priests to be Judges in the King's-Bench Chancery and other Courts yet could they not grant them power to judge by any other Laws than the Laws of England except by Act of Parliament Then as to granting prohibitions where the King had not or could not by Law grant them Jurisdiction proves nothing that any King did or could by Law grant them Jurisdiction of general Bastardy without Act of Parliament or that there was any Law or Act of Parliament which gave them Jurisdiction of general Bastardy because the King's Courts durst not grant prohibitions for general Bastardy For in those superstitious times neither the King nor Judges dar'd provoke their Excommunication and therefore at the making of the Statute of Merton when the contest was between the Ecclesiastical and Secular Power which of them should give the Law to Marriage The Temporal Judges for fear of their Excommunication took only like the Jackal what the Lion refused and left them which they called special Bastardy So quod non capit Christus capit fiscus which is intended of the false Christ for the true Christ took nothing from it but paid tribute to it Besides if many Jurisdictions should judge by other Laws this would be destructive both to the King and Subject Though the King therefore give the Sword he cannot change the Ballance as is in effect confess'd by Coke himself 3 pt Inst fol. 120. in his Exposition of the Statute 27 E. 3. of Praemunire where he saith The right of King and Subjects not triable per alias Leges or aliud Examen then the laws of the Land If Freehold and Inheritance Goods or Chatâ—les Debts or Duties wherein the King and Subjects have a right or property should be judged per aliam legem which he mention'd before to be Civil or Canon Law And other Trial which he makes to be any Trial except by Jury or be drawn ad aliud examen These three mischiefs endeavour'd to be prevented in the said Statute would necessarily follow viz. Disherison of the King and his Crown the Disherison of all his People and the undoing of the Common Law And fol. 121. he farther saith Some have made a question whether since the Ecclesiastical Jurisdiction was acknowleged in the Crown an Ecclesiastical Judge holding Plea of a Temporal Matter belonging to the Common Law doth incur the danger of a Praemunire Though hereof is no question at all yet lest any Man might be led into an Error in a Case so dangerous we will clear this point by Reason Precedent and Authority The Reason holdeth still to draw the Matter ad aliud examen c. And he citeth before several Precedents and says The reason of all these Cases is because it drawes matters Triable at Common Law ad aliud examen and to be discussed per aliam legem Peter du Moulin that famous Protestant Divine writes That there was a a Book printed in the former Age entitle The Canons of the Apostles Anti-Christian whereby the Temporal power of the Pope is wholly taken away And the sixth Canon expresly forbids a Bishop to meddle in Civil affairs And in the 84th Canon are these words A Bishop that meddles in War or seeks to obtain these two things that is to say the Empire of Rome and the Sacerdotal Government let him be deposed for the things of Caesar are to be given to Caesar and the things of God to God And that one Arnold who Preached this Doctrine That the Pope had no Jurisdiction nor any thing to do with the Temporal affairs with great applause was in the year 1155 made a Martyr and most cruelly burnt at Rome by the order of Pope Adrian And this agrees with the Testimony of Christ himself Bishops Judg. not only as to Jurisdiction of Marriage and Legitimation but all other matters wherein Temporal propriety comes in question that he refused the Jurisdiction of it as appears Luk. 12.13 And one of the company said unto him Master speak unto my Brother that he divide the inheritance with me And he said unto him Man who made me a Judge or Divider over you It appears therefore the Episcopal Jurisdiction of judging or dividing Temporal goods in the Spiritual or Ecclesiastical Courts came not from Christ but was usurped by Anti-Christ by force of Fire and Faggot and is from him derived to Bishops and Ecclesiastical Courts to the destruction of the rights of Princes and the liberty and propriety of the people
Excommunicato Capiendo and Heretico Comburendo to catch and roast the Bird himself for the Bishop to eat it and of the subtlety of the Bishop as to this matter see more before p. 167 168 169. How little incouragement there is therefore for Protestants to take this Oath of Supremacy wherein the Kings name is only abused and made a Stale to draw a Supreme and Arbitrary Power to Bishops both over the King and them and to drein the Royal Treasury into their own Pockets and how untrue a Test such an Oath must be is humbly submitted to Supreme Authority Supremacy granted by Act of Parliament of Marriage and Legitimation to Canterbury yet Sworn to be in the King 6. By the Statute 25. H. 8.21 Power is granted to the Arch-Bishop of Canterbury and his Successors by their Discretions to Grant unto the King his Heirs and Successors all such Licenses Dispensations Compositions Faculties Grants Rescripts Delegacies for Causes not contrary to the holy Scriptures and Laws of God as heretofore had been used and accustomed to be held and obtained by his Highness or by any his most Noble Progenitors at the See of Rome and all Children procreated after Marriage by virtue of any such License or Dispensations shall be admitted and reputed Legitimate in all Courts Spiritual and Temporal So this Act of Parliament made in time of Popery translates the Pope from Rome to Canterbury and the Supremacy before used or accustomed by him over the King and his Subjects concerning all the matters mention'd in the Act is placed in the Person of the Arch-Bishop and the Bishops call this a Supremacy in them according to Scripture and the Law of God which is worse and more Papal than to claim it only by Act of Parliament for what more Papal Supremacy can there be than Power to Grant Licenses Dispensations Faculties Compositions Grants Rescripts Delegacies of Marriage Legitimation and all other matters which Popes have formerly granted from Rome to Kings and their Subjects at discretion and this Exceptio is contraria facto for the granting of Licenses by Popes to Kings is contrary to the Law of the Land and is a Power Supreme to the Legislative and Law of the Land so the Grant in the Act is Repugnant to the Exception for 〈◊〉 Licenses or Dispensations are necessary but where there is a standing Law of God or Man to the Licensed or Dispensed with no Composition or Pardon necessary but where there is a standing Law violated or broken no Faculty necessary but where is a standing Law disabling the Party to do what he desires to have a Faâ—ulty for that he may be enabled to do No Rescript is but from a Supreme Prince no Delegacy but from a Superior to an Inferior for the Pope is Superior to his Legate though he be Legatus à Latere and the highest preferment this Popish Act of Parliament allows the King is to be the Arch-Bishop's Legate then the Act having made him Supreme to the Legislative Law and King gives him as high Supremacy over the Judicial Power in all Courts as well Spiritual as Temporal which is Supremacy over the Parliament which is a Court-Temporal This Act therefore doth set up more than Prelacy or Arch-Prelacy at Canterbury for that was there before and the Gyants had piled up Pelion on Ossa already and now they steeple it with Olympus and if they set not on the Gyants head the Triple Crown 't is sure they have the Triple Miter three stories high of Prelacy Arch-Prelacy and Supremacy When the Arch-Bishop got therefore of the Parliament this Act he was something like the Carpenter who begg'd of the Wood only one Helve long enough to turn his Hatchet into an Ax and when he had got that he cut down the whole Wood for he having now got so long a Helve to his Spiritual Hatchet as Supremacy over the Marriage not only of the old Palm Trees and Legitimations of the young at his Discretion that is to say if they give him whatsoever Money he asks for Dispensation and Legitimation this gives him likewise Power to strike both at Root and Branch of all the Royal Protestant-Cedars themselves in the Popish Points of Ceremonial Marriage and Legitimation endeavour'd now to be brought to the true Test of a more Supreme Law and Judg than his the Moral Law of God himself How therefore the Protestant can safely Swear in Conscience the Supremacy to be only in the King when so great a share of it is granted to the Arch-Bishop by the King and Parliament until the same Act of Parliament of 25. H. 8.21 by which 't is done is Repealed I confess my Ignorance and if it be without cause crave Pardon 7. The Party who is to Swear who is the only Supreme Governour must be intended to Swear either who is Supreme De Facto or De Jure if De Facto who hath the Actual Power of the Sword it may happen to be in a time of War when two Armies are in the Field and Inter utrumque Volat Dubiis Victoria pennis It is necessary at such a time that the Swearer unless he will Forswear himself be a Prophet of whom there are not many in this Age amongst such as take the Oath of Supremacy if it be said the Swearer ought to Swear De Jure who hath Right to be only Supreme Governor to this is Answer'd 1. Unless he can Swear to the matter in Fact he cannot Swear to the matter of Law or Right for Ex facio jus Oritur all matter of Law must arise from the matter of Fact therefore the Fact must be first known before the Right can be known which is to be deduced from it 2. The Right when the Oath is required may be as to Succession of the Crown wherein the matter of Fact depending only on Genealogies the Heralds themselves especially after Wars may not be able to make any clear probation of the Descents as Ezra 2.62 and Nehem. 7.64 it is said These sought their Register among those that were reckoned by Genealogie but it was not found therefore were they as Polluted put from the Priest-hood If therefore the Genealogies of Priests who wore themselves the Registers and kept their own Descents as curiously as was possible may be lost much easier may those of the Lay and the Law and Divinity may likewise be so doubtful that it is justly acknowledged by the King and Parliament themselves 25. H. 8.22 That Ambiguities and Doubts touching the Successions of the Crown have been Causes of much Trouble and no perfect and substantial Law hath been made for Remedy of the same and accordingly at the Death of Queen Elizabeth there were no less than Sixteen titles endeavour'd to have been set on foot to the Succession partly by Papists to overthrow the Protestant-Religion partly by others to overthrow the Union between the two Kingdoms in the Person of King James in which the Protestants of
tend most to the Peace of the Church for unless there were an Interval for the Bell to Toll a space after the end of the Prayer before the beginning of the Sermon the Parish who love not long Prayer will not be able to know when the Sermon begins and very many of them though they would be all glad to join with the Chaplain in his Prayer for the King yet will they many of them perhaps have Scruples in Conscience to join with him in Prayer for his Patron Patron if to be Prayed for in Publick 1. Because he may sometimes happen to be a Papist and one that seeks the Destruction of the Protestant Religion and all Protestants and many may grow doubtful to Pray for the Prosperity of such a one the same seeming to be Prohibited 2 John 10 11. Where it is said If there come any unto you and bring not this Doctrine receive him not into your House neither bid him God speed For he that biddeth him God speed is partaker of all his Evil Deeds Patron a Papist 2 As to Publick Persons we are directed by the Scripture to Pray in Publick for none but Persons in publick Authority but a Papist is by Acts of Parliament Excluded from all publick Authority and Office therefore no publick Person 3. As to private Persons the Scripture and practice of the Primitive Christians direct to Pray for no private Persons particularly and by name but such as are sick or possess'd by the Devil for in such Case the direction of Christ and practice of the Primitive Church was to cast him out by Fasting and Prayer but many Patrons are neither sick nor possess'd therefore there is no direction in Scripture for them to be Prayed for by name in publick 4. The Chaplain useth to Pray for Bishops especially if Patrons wherein many Protestants may not be free to join in regard they many of them assume to themselves to be Judges of Heresie and the Rule of Heresie they make is the Four first General Councils and the Papal Canons for Ceremonies and against Lollaries the Parliament deceived by the Bishops to leave the Four first Councils the Rule of Heresie was 1. Eliz. 1. In which Act to Prohibited Commissioners appointed by the Queen by virtue of that Act If Bishops are Papists or to be Prayed for who Judge Heresy by the four first Councils to proceed in Judgment of Heresie beyond the words prescribed them the words-Prohibited in a Proviso are these viz. Shall not in any wise have Authority or Power to Order Determine or Adjudg any Matter or Cause to be Heresie but only such as heretofore have been Determined Order'd or Adjudged to be Heresie by Authority of the Canonical Scriptures or by the first Four General Councils or any of them or by any other General Council wherein the same was declared Heresie by express and plain words of the said Canonical Scriptures or such as shall hereafter be Order'd Judged or Determined to be Heresie by the High Court of Parliament of this Realm with the Assent of the Clergy in their Convocation Of the Four first General Councils by which Bishops would Judg Heresie and of the Suspition lies on such Judges to be Papists and not to be Prayed for in Publick The Four first General Councils which I suppose they mean were the Council of Nice in Bithynia the Council of Constantinople where the Great Turk Lives the Council of Ephesus where the Great Diana of the Ephesians and the Image which fell from Jupiter were Worshipt and the Council of Chalcedon in Bithynia Council of Nice As to the Council of Nice there were two one about Anno Dom. 330. the other about Anno Dom. 381. In the First called by Constantine the Great there were 318 Bishops in another call'd by another Constantine there were 350 Bishops which of these our Bishops would have I cannot tell but they may wink and choose and though each was Nice yet neither of them was more Nice than Wise for the Profit of the Bishops and the Bishops 1. Eliz. were as wise as they to join the Canonical Scriptures and the Council of Nice that nothing should be Judged Heresie without their Joint Consent for the Canonical Scripture hath not so much as one Bishop they having falsely translated 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Bishop which ought to have been an Overseer of the Poor so as there is not one Bishop to be found in Scripture to be a Judg of Heresie any more than of Marriage whereas at one of the Nices there were 350. And in the Scripture is not one Image found lawful to be Worshipped whereas at both the Nices there were a multitude Set up Images and at the last Nice all the Holy Images of Irene the Empress which the Emperor Leo Isaurus had knockt to pieces were Restored and Two and Twenty Canons thereupon made That all Image-breakers should be adjudged Hereticks to the great profit no doubt of the Holy Bishops who knew as well as the Silver-Smiths of Diana wherein their Gain lay Council of Constantinople The Council of Constantinople was a General Council call'd about the Year of our Lord 383 by Theodosius the Emperor where were 150 Bishops of several Sects 36 of them were Macedonians who held the Holy-Ghost to be an Angel because Christ is said to send him and Macedonius their Teacher was then Bishop of Constantinople the place where this Council Sate Him this Council Deposed and his Party became thereon Excluded Members whereby all Votes passed for the Bishop of Romes Doctrine with whom the Bishop of Constantinople was always a dangerous Corrival for Supremacy there were joined in this Council Theodosius Gratian Confirmed Images and Damasus the Pope this Council confirmed the Nicene Faith and their Worshipping of Images for a Pope could not live without them Council of Ephisus Another General Council was called at Ephesus about the Year 834 by the Emperor Theodosius the Second and by the Instigation of Pope Celestine the First against Nestorius then Bishop of Constantinople who according to Evagrius l. 1. c. 7. held That the Blessed Virgin Mary ought to be called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Mother of Christ Continued Images and not the Mother of God which Doctrine being dangerous to the Worshipping of Images and the drawing of the Supremacy from Rome to Constantinople the Pope got the Council called and not to sit as formerly at Constantinople but at Ephesus where Nestorius had not so much Power and there being not able to bring him to Submit to the See of Rome they Deposed him and Banished him to Oasis This Council of Ephesus is said to have left Two Copies of its Canons in certain and variant one from another and some of them are Condemn'd by the Council of Chalcedon as Suppositious which besides the Worshipping of Images continued by this Council makes it a
no Jurisdiction but by Usurpation of so Temporal a Right as Marriage before this Statute let any who thinks he can see Nine Miles into a Milstone once more look into the Statute of Merton before recited and try whether he can screw out of it any word giving the Bishops either a Jurisdiction of Marriage or general Bastardy or that this Statute ever forged so rude a Romish Tool as the two edged Sword of general and special Bastardy to divide the living Child or tear it in peices between the Bishop and the Temporal Judg or how it was then consistent with a Legale Judicium parium to expose a Child no Alien but the King 's Native Subject to be tried for all he had by a then Foraign Ecclesiastical Law and a Judg a sworn Canonical Subject to a Foraign Pope or that the wisdom of that Parliament intended to coin a Chimera of a Distinction without a difference of general and special Bastardy which neither they themselves understood nor any Lawyers which write to this day give any sensibly Interpretation or agree amongst themselves concerning it or that they who made the Statute to oppose the Bishops Jurisdiction of Marriage should create a Notion of general Bastardy which le Scrope says was not in Esse before to give them a new Jurisdiction which was to change the Laws of England which they positively refuse in the Statute it self to change Object 4 No Similitude of fetching the Laws of Athens to Rome and bringing the Romish Laws to England It is further alledged by Coke lib. 5.1 part 9. That as the Romans fetching divers Laws from Athens yet being approved and allowed by the State there they were called Jus Civile Romanorum And as the Normans borrowing all or most of their Laws from England yet baptized them by the name of the Laws and Customs of Normandy So albeit the Kings of England derived their Ecclesiastical Laws from others yet so many as were approved and allowed hereby and with general consent are aptly and rightly called the King's Ecclesiastical Laws o. England To which is answer'd That there is no similitude between making or changing the Laws of the Athenians which were Foraign Laws to become the Laws of the Romans and the making or changing either the Foraign Papal or native Provincial Canons or Ecclesiastical Laws into the King's Ecclesiastical Laws of England For First The Athenian Laws before they were made Denizons of Rome were not admitted in cumulo but Articulated and every Article examined one by one by the Decem viri or Ten Men as our usurped Ecclesiastical Laws were appointed to have been done by the Statute of 25 Hen. 8.19 by the Two and Thirty Men and likewise in time of Edward the Sixth by others but neither succeeded before the same was received for a Roman Law Secondly Such Athenian Laws as were pickt or garbled from the rest were by the Authority of the Legislative Power of Rome both Senate and People caused to be writ in Twelve Tables and inacted to be the Laws of Rome but in England there was never by Authority any Articulation selecting or garbling of Canon Laws effected nor the same reduced into Tables Written or Printed by any Act of Parliament Ecclesiastical Laws in an unknown Language Thirdly The selected Athenian Laws were written in the Roman Language to be understood by the People before they would be received as Roman Laws but there is no such thing in the Ecclesiastical Laws of the Holy-Church concerning Marriage or any thing else but they all still remain in the Language of the Beast and can be neither call'd the Laws of the Church which by the Scripture are forbidden to be spoke in an unknown tongue as appears 1 Cor. 14.19 It is said In the Church I had rather speak five words with my understanding that by my voice I might teach others also then ten thousand words in an unknown tongue It is as utterly unlawful therefore to make that a Law of the Church or an Ecclesiastical Law of Marriage which is in the unknown Language of Latin as it had been to have made any form of Prayer taken from the Romish Church though the Pater Noster it self the form of Prayer of the Church of England while it was in Latin for the Minister would then have been a Barbarian to the English man and the English-man a Barbarian to him and it is as bad for the poor English-man for his Law-sutes in Latin for a Wife in the Court of Arches and other Ecclesiastical Courts as it would be if his Prayers were again in Latin in the Church For though he pay his Lawyers dear to plead his Cause there he cannot understand for his Money whether they call him and his Wife Rogue and Whore or honest People or whether the Judg by his Sentence will give him his Wife or take her from him but by the implicit Faith of an Interpreter as let any one look on the Sentence of Divorce in Kennes Case Coke lib. 7.42 E. he may understand or not understand the same Ecclesiastical Laws are not the Laws of the Land Fourthly The Athenian Laws were not obtruded on the Romans by Conquest of their Bodies by the Temporal Sword or their Souls by the Spiritual Sword of Excommunication but the Ecclesiastical Laws of Marriage have been obtruded on England ever since the Conquest by the superstitious Terrors or actual force of Excommunication either Papal or Episcopal and never by consent in Parliament The suffering of an oppression therefore is no consent nor an abuse against Law an Use Custom or Law neither can a wicked Oppression Use Custom or Law in name only be turned into a Law of England except by consent in Parliament or other humane Power besides it is by the very before recited Statute of Merton declared That the Laws of the Church are not the Laws of England for when the Bishop quarrel'd that the Law of England as to Marriage was not according to the Law of the Church and would have had them changed into the Law of the Church the Earls and Barons with one voice answer'd We will not change the Laws of England Whereby it 's plain the Laws of England and Laws of the Church are opposite Laws and not the same and this is confessed by Coke himself in the exposition of his Statute of Merton 2 part Inst fol. 98. where he saith Here our Common Laws are aptly and properly called the Laws of England because they are appropriated to this Kingdom of England as most apt and fit for the Government thereof and have no dependence upon any Foraign Law whatsoever no not on the Civil or Canon Law other then in Cases allowed by the Laws of England and therefore he saith the Poet spake truly hereof Et penitus toto divisos orbe Britannos So as the Law of England is proprium quarto modo to the Kingdom of England therefore Foraign Precedents are
them cleérly frustrate and dissolved Further also by reason of other Prohibitions then God's Law admitteth for their lucre by that Court invented the dispensation whereof they always reserved to themselves as in kindred or affinity betweén Cousin-germans and so to the fourth degreé carnal knowledge of any of the same kin or affinity before in such outward degreés which else were lawful and be not prohibited by God's-Law and because they would get money by it keep a reputation of their usurped Iurisdiction whereby not only much discord between lawful married persons hath contrary to God's ordinance arisen much debate and suits at Law with wrongful vexation and great damage of the Innocent party hath been procured and many just Marriages brought in doubt and danger of undoing and also many times undone and lawful Heirs disherited whereof there had never else but for his vain-glorious usurpation beén moved any such question since freédom in them was given us by God's Law which ought to be most sure and certain But that notwithstanding marriages have been brought into such an uncertainty thereby that no marriage could be surely knit and bounden but it should lye in either of the parties power and arbiter casting away the fear of God by means and compasses to prove a pre-contract a kindred and alliance or a carnal knowledge to defeat the same and so under the pretence of these allegations afore rehearsed to live all the days of their lives in detestable adultery to the utter destruction of their own Souls and provocation of the terrible wrath of God upon the places where such abominations were used and suffer'd Be it therefore Enacted by the King our Soveraign Lord the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the Authority of the same That from the first day of the Month July next coming in the year of our Lord God 1540. All and every such Marriages as within this Church of England shall be Contracted betweén lawful Persons as by this Act we declare all Persons to be lawful that be not prohibited by God's Law to marry such Marriages being Contract and Solemnized in the face of the Church and Consummate with Bodily knowledge or fruit of Children or Child being had therein betweén the parties so married shall be by Authority of this present Parliament aforesaid Deémed Iudged and taken to be Lawful Good Iust and Indissolvable notwithstanding any pre-contract or pre-contracts of Matrimony not Consummate with Bodily knowledge which either of the parties so married or both shall have made with any other person or persons before the time of Contracting that Marriage which is Solemnized and Consummate or whereof such fruit is ensued or may ensue as afore and notwithstanding any Dispensation Prescription Law or other thing granted or confirmed by Act or otherwise And that no reservation or prohibition God's Law except shall trouble or impeach any Marriage without the Levitical degrees And that no person of what estate degreé or condition soever he or she be shall after the first day of the Month of July aforesaid be admitted to any of the Spiritual Courts within this the King's Realm or any his Graces other Lands and Dominions to any Process or Plea or Allegation contrary to this aforesaid Act. 1. Here it appears what a necessary stroke this Act gave against the usurped power of Ecclesiastical Laws and Jurisdiction in this and other points of Marriage forbidding any Spiritual Courts within this Realm or any his other Lands and Dominions to admit any Process Plea or Allegation contrary to this Act. And although hereby one of the heads of Ecclesiastical Jurisdiction was as is said of the Beasts Rev. 13.3 as it were wounded to death yet so great was the subtilty of the Serpent that the Ecclesiastics soon after by abusing the minority of that most pious though young King Edward the Sixth got all what the wisdom and courage of his Father had Enacted against them repealed by the Son 2 3 Ed. 6. cap. 23. Edward the Sixth abused by Papists in his Minority to repeal his Father's Act of Precontracts And thinking themselves therein not sufficiently secure they again procured the same to be repealed by 1 Eliz. 1. In which repeals I can see nothing but a Papist Plot against them both to revive those Ecclesiastical Laws by their own Authority against themselves which might have yielded most dangerous pretences against their own Legitimations and Marriages and Issue if they had happen'd to have had any For certainly no Marriage or Issue can be secure or certain if any fraudulent person may secretly pre-contract or pre-copulate with any vile person and take Bonds of him or her to release the same upon request and then marry another person Ignorant and Innocent and have Children procreate between them and then cause the party who had the pre-contract or pre-copulation to sue and obtain a Divorce against the Innocent person to be Divorced and Children Bastardized and Disinherited and then to give a release to the party conspiring in the fraud How is it possible to avoid this wickedness if pre-contract or pre-copulation should be allowed a sufficient cause to dissolve Marriage Consummate by the Birth of a Child And how is it possible propriety to be if a distinction be not kept between it and contract and between obligation and possession according to the old Rule of Law Rem Domino vel non Domino vendente duobus in jure est potior traditione prior And the Rule of the Civil Law and fundamental of all Nations who have propriety Obligatio non impedit translationem Dominii sed translatio Dominii praecedens impedit obligationem l. si quidem 1. C. de donat inter virum Notwithstanding all which Reasons preceding and likewise those in the mention'd Act of H. 8. The Ecclesiastics though straining their Wits and Eloquence to the highest in the Act of repeal by Ed. 6. yet cannot alledge the least reason except only this That if pre-contract should not dissolve Marriage the parties might part from one another at the Church door and then the Wedding Dinner would be spoiled which surely may be sufficiently and over satisfied by recompence in value were it a Half-Crown Ordinary But a lost Virginity to an Innocent Woman who was married bona fide and knew nothing of this pre-contract and her Child can never be repaired if the Marriage be dissolved Nulla reparabilis Arte Laesa pudicitia est deperit illa semel Propert. The Act of Repeal of the said most excellent Law of Henry the Eighth against pre-contracts follows 2 3 Ed. 6. cap. 23. 2 3 Ed. 6. cap. 23. WHereas in the 32 year of the Reign of the late King of famous memory King Henry the Eighth Because that many inconveniences had chanced in this Realm by breaking and dissolving of good and lawful Marriages yea whereupon also sometimes Issue and Children had followed under
because in their making there was no Consent of an House of Commons and the House of Commons being but Delegates themselves can not Delegate the Peoples Interest in the Legislative to others for Delegatus non pâ—test delegare it was an Office of Personal Trust reposed in the Persons Elâ—cted to be Members of Parliament to treat with the King and assent to equal Laws in behalf of the People they could not grant over therefore this Office of Trust to Bishops or a Synod or a Council to treat with the King and assent to Laws for the People but every Member of Parliament ought either to refuse to accept of the Election or if he accept to serve in Person All Books of Canons made by Bishops without consent of Parliament void and not by Proxy assign or subdelegate in so great a Trust as to join in making Laws for the Publick Safety and Peace Hence will follow therefore That all Ecclesiastical Canons and Laws of Synods and Councils prohibiting Marriage without Publick Bans or Episcopal Licences and all Canons prohibiting Marriage in time of Advent Septuagesima and Rogation and all Canons prohibiting Marriage within degrees of Consanguinity and Affinity not prohibited by the Moral Law of God and all Canons prohibiting Marriage not made by the Ceremonies of a Priest and Temple and all Canons of the Council of Trent making null and void all Marriages not made before a Priest and two Witnesses are all in themselves utterly void for the House of Commons never assented to their making and all Laws prohibitory of Marriage being before shewn to be contrary to the Moral Law of God and to come from the Devil P. 52. and it being here shewn that they have no consent of Parliament such Books of Canons must in both respects be of necessity null and void as being neither the Laws of God nor Man in England but of the Devil according to which Books of Canons Bishops therefore Judging of Marriage contrary to the Moral Law of God and without any positive Law of Man their Judgment must likewise be void being according to the Law of the Devil and such Persons are no fit Judges who judg according to such Laws 7. They take to themselves the Fines and Penalties of their own Judgments That the Sole and Final Cause why Bishops so eagerly contest for the Jurisdiction of Marriage is Filthy Lucre is shewn before P. 52 53. c. and the same is so great a Pillar of the Kingdom of Anti-Christ that Pope ruin'd where Episcopal Jurisdiction of Marriage is taken away take but away Episcopal Jurisdiction of Maâ—riage the Papal Power is immediately ruin'd in those Provinces wheresoever it is done 1. In regard of the infinite Treasure he heaps hereby which appears before P. 52 53. 2. In regard of the Power he gains hereby over Kings and Princes in assuming to himself the Judgment of Filiations and Successions to Kingdoms 3. By enticing Princes to unlawful Marriages contrary to the Moral Law of God and procuring them to take his Dispensations for thereby such Prince and his Successors will be in great danger as to his Title unless he expose his Interest and Religion to obtain assistance from the See of Rome which made Philip the Second King of Spain who Married Queen Mary so furious to support the Catholick Religion in the Low Countreys by Fire and Sword and to make a Law That none should succeed him in the Government of those Provinces unless he took an Oath to maintain the Catholick Religion there and maintain the Authority of the Church of Rome And this made Queen Mary so cruelly furious against Protestants in England the Title of her Mothers Marriage and her Succession depending on the Popes protection And wheresoever any Prince is promoted by the Popes Canon Laws contrary to the Right of Succession instituted by the Moral Law of God such Prince to defend his Title against the right Heir by the Moral Law of God and his Successors become assured Vassals to the Religion and See of Rome 4. The Pope by procuring and dispensing Marriages of Catholick Ladies with Protestant Princes gains a numerous increase of Catholicks in those Dominions and many times turns the whole Tide to carry Tribute to Tyber But to return to the lesser Rivers the Bishops 't is no small stream of gain flows in to them too by such an unjust Power of Bribing themselves to Injustice by exercising so Arbitrary a Proceeding as to Fine and Commute what they please and putting it in their own Purses which should go to the Publick Treasury 8. They License Dispense and Pardon all Offences against the Law for Money It is to no purpose to make Penal Laws if the Judg hath liberty to License Dispense and Pardon Offences against them and nothing better enables him to do it than to allow a Judg to Fine or Commute and to put the Fine or Commutation Money in his own Purse now the Power of Licensing Dispensing and Pardoning Offences against the Laws of Marriage or any other Law must of necessity so corrupt the Judg as he will protect and increase the Vice he pretends to suppress Hence the Popes Taxa Camerae and the Bishops Courts increase more Fornication and Adultery than aâ—l the loose Women in the Countrey They are therefore no fit Judges of Marriage 9. They cannot be known whether they are Protestants or Papists if Bishops The Laws of Marriage have a very great influence on all Religions and in all Nations but more specially God hath been pleased in England to make the same the chief means and occasion in the time of H. 8. of planting the Protestant it is therefore of very great concern for the Preservation of the same that the Judges of Marriage be Protestants and it cannot be known whether they are so or no if Bishops 1. Because the excess of Riches which the Jurisdiction of Marriage Filtation and Succession especially to Kingdoms carries with it and all other Profits of a Bishoprick joined therewith are so great as may be too much a Temptation to any unless a Saint by Miracle to be of any Religion to obtain them and Christ himself Matth. 19 24. makes this Temptation so difficult to be resisted that he saith It is easier for a Camel to go through the Eye of a Needle than for a rich man to enter into the Kingdom of Heaven yea he makes a Miracle necessary for any to obtain Riches and Heaven together for he saith Verse 26. With men this is impossible but with God all things are possible And Austin in imitation of this confesseth in effect the same difficile imò impossibile est praesentibus futucis bonis frui It is difficult yea impossible to enjoy the good things of this World and of that to come Damasus Bishop of Rome endeâ—vour'd to convert Praetextatus a great Heathen Phâ—losopher to Christianity he answer'd him Make me Bishop of Rome and I will turn
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
Free-born Subject Arbitrarily at their pleasure is contrary to the Acts of Parliament both of Magna Charta and the Petition of Right so late in memory which abolish all Imprisonment both of Nobles and Commons without the lawful Judgment of their Peers so likewise is it contrary to all other Fundamental Laws of the Land made for defence of the liberty of the People which is more necessary and more dear than Life as may appear by the Reasons following 1. There is an Act of Parliament made 15. H. 6. cap. 4. That none shall Sue a Subpoena until he find Surety to satisfie the Defendant his Damages if he do not verifie and prove his Bill to be true this Statute had nipt in the Bud the Overflow of all those innumerable Fictions and Falsities which have since followed in the Suggestions of Bills in Chancery for this being made 15. H. 6. there is no mention made in all the Year-Books of any quarrel between the Common-Law-Judges and a Subpoena till 37. H. 6. which is above Twenty Years after so great a Fright had this Act falling from the Supreme Power put amongst the Froggs though now despised as a dead Logg as likewise are all the rest and it is in vain to make more unless the Honour of these is vindicated by the same Authority that made them for Chancellors as if Jura negant sibi nata they were two-great to be bound by Acts of Parliament though they have not the least pretence to colour their Authority against these Three the greatest Acts for Security of the Subjects against false Imprisonments that ever were made in England for there is no Prescription or Custom of any Court can be alledged against an Act of Parliament be it never so old and there is no Pretence to alledg any against the Petition of Right Chancellour hath no Authority to impose a Fine being in so fresh memory and no longer since than 3. Car. 1. they have trampled under soot the Authority of these Supreme Acts and all lawful Judgments on them 1. To lay Fines on the Subject thus Trin. 3. Jac. did Chancellour Egerton impose a Fine on Sir Thomas Themilthorp for not performing his Decree concerning Land of Inheritance and Estreated the same into the Exchequer and upon Process against him the Party appearing pleaded that the Chancellour had no Authority to impose a Fine the Attorney General Petiit advisamentum Curiae concerning the Authority of the Chancellour and on mature advice It was adjudged That he had no Power to Fine in the Case Coke 4th part 84. 2. To Extend according to which pretended Power the said Chancellour Decreed against Waller certain Lands and for not obeying the Decree imposed a Fine and upon Process out of the Court of Chancery extended the Lands that Waller had in Middlesex whereupon Waller brought his Assise in the Court of Common-Pleas where the Opinion of the whole Court agreed in omnibus with the Court of the Exchequer ib. 3. Not only to proceed to Imprison the Subjects on false Suggestions without taking any Surety of the Complainant according to the Statute to verifie his Bill but without so much as taking his Oath of Calumny to his Bill and have further presumed so high as by their Edicts and Orders of Chancery which they have not the least Authority to make to order the Subjects to be Attached and Imprison'd on every Affidavit of any Knight of the Post and no Probation to be admitted to the contrary and if while the Innocent Party is imprison'd being remote from his Home and suffering great Loss and Damage by this his false Imprisonment he shall at length offer to prove the Affidavit false and Knight of the Post perjur'd he shall be discharged but without any Cost for the great Service the Knight of the Post did the Court to Forswear himself against the Prisoner whereby they get some Fees See here a Chancellour in desiance of Three Acts of Parliament without any Sureties without any Oath of Calumny without any Judgment of Peers publisheth in sight of the Sun his abominable Orders to cast into Prison the most Innocent Person on the false Affidavit of every Perjur'd Knight of the Post yea a single Affidavit as appears by the Orders of the Chancellour and Master of the Rolls Printed 1669. Page 67. and yet they pretend Page 65. under the Title of Commitment that they are tender of the Liberty of mens Persons and of their Imprisonments on Affidavits and confess they are often Malitious and made by one mean and ignorant Person yet in the same breath Page 67. as if they soon forgot or understood not what they said in the beginning of their Order they the next leaf conclude That a single Affidavit of such a malitious mean and ignorant Person yea though he is proved afterwards to be Perjured shall be sufficient to Imprison the Innocent Subject and when he again gets out of Gaol if he can let the Innocent Party be indamaged his whole Estate he shall not have a Farthing Cost for the false Imprisonment and observe the depth of the Reason why given by a Chancellour and as the Printed Orders say with advice and assistance of the Master of the Bolls 't is this as appears Page 68. at the top of the leaf viz. IN RESPECT OF THE OATH MADE AGAINST HIM AS AFORESAID that is to say the Oath though false of a Villain Perjured against the Innocent Person for so is the implication of the Order and likewise though they durst not say so in express terms yet so is the implicit Non Obstante notwithstanding any Law of God or Man or Acts of Parliament to the contrary Doth not here a Chancellour assume the Omnipotent Power of the Pope to dispense with the Laws of God and Men and assume a Power of Imprisoning the Subjects above the King and Parliament yea contrary and in contempt of their Laws he doth for the Law of God and Precept of Christ is known to prohibit the Imprisonment of any No Imprisonment ought to be but where the Witnesses and Party are brought Face to Face without two Witnesses at least and without bringing the Witnesses and the Party accused face to face that he may know them and except against their Persons or Testimony if he hath cause which is never done on an Affidavit And the Laws of the Land Magna Charta and Petition of Right utterly prohibit all Imprisonment of the Subject on Affidavits whether they are true or false without bringing the Witnesses and the Party face to face and a Judgment on such Testimony against him by his Peers and if such Evil Precedents be suffer'd to pass without some example of Justice shewn on them all Acts of Parliament which ever have been or shall be for protection of the Liberty of the Subject Forgery Licensed in Chancery thereby to Imprison the Subject falsely will be vain and to no purpose 4. The Chancellour
in these Articles Bishops presumed to be Legislators Judges and Executioners in their own Case for the Bishops make the Article 36. whereby they Constitute themselves Arch-Bishops and Bishops and Article 32. They Declare it lawful for all men to Marry Article 34. They Ridiculously make Traditions of the Church to be Changeable according to Diversity of Countries Times and mens Manners so before they come to their Ceremonial Law they set up their Legend-Law and the Ceremonies must be Founded on what Legends they please and no man must oppose either Tradition or Legend or Ceremonies set up by Common Authority that is by Authority of the Bishops for the House of Commons never Authorized them Rog. Art 34. Prop. 2. p. 196. Then Article 33. they Order Excommunication Delivery to Satan Penance and Absolution Then to compell the Observation of these Articles Anno 1603. They assume the Legislative Power to make Canons and Constitutions Ecclesiastical without the assent of the House of Commons they Order Saying or Singing of Common-Prayer and the Letany with all the Ceremonies prescribed by the Can. 14 15. Copes Surplices and Hoods to be wom in Cathedrals by Can. 17 27. Marriage not to be without Banns or License Can. 62. None to deliver from Satan without the Bishops License Can. 72. And no Minister to Preach Read Lecture or Catechize without Subscription to the 39. Articles Can. 36 37. And then to make clear work they Order That if any affirm any of the Nine and Thirty Articles made by the Arch-Bishops and Bishops to be in any part Erroneous or such as he may not with a good Conscience Subscribe to let him be Excommunicate Ipso facto which is without Summons or Hearing Can. 5. Can. 9. So unless the Protestant-Minister will Popishly acknowledg the Bishop to be Infallible and without Error and that all his Traditions and Ceremonies of Worship of Marriage and the like Ordained by Episcopal Authority are of Divine Right to oblige the Conscience and that he neither can Teach nor Fast nor Pray though to deliver from the Devil without his License Here is a Test wherein the Bishop assumes to be Legislator Judg an Ipso facto Executioner in his own Cause against a Protestant-Minister and not only prohibited to speak Book of 39. Articles and of Canons oblige not the Subjects to Clergy or Lay. but his Conscience to think against it in his own Defence 3. This Subscription to the 39. Articles ought not to be Imposed as a Test because neither the said Book of Articles nor Book of Canons had the Assent of the House of Commons at the time of their Making without whose Actual and Express Assent no Law or Canon or Article can be made to oblige the Subject which is more fully proved before Whether the Positive part of the Oath of Supremacy is a true Test The Form of the Oath 1. Eliz. 1. is as followeth I A. B. do utterly Testifie and Declare in my Conscience That the Kings Highness is the only Supreme Governor of this Realm and of all other his Highness's Dominions and Countries as well in all Spiritual or Ecclesiastical Things or Causes as Temporal and that no Foreign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction Power Superiority Preheminence or Authority Ecclesiastical or Spiritual within this Realm and therefore I do utterly Renounce and Forsake all Foreign Jurisdictions Powers Superiorities and Authorities and do promise that from henceforth I shall bear Faith and true Allegiance to the Kings Highness his Heirs and lawful Successors or Vnited and Annexed to the Imperial Crown of this Realm So help me God and by the Contents of this Book It being granted that no true Test can be which the Conscience of a Protestant weak or strong ignorant or knowing refuseth or is doubtful to take it is manifest that the positive part is refused by a very considerable part of the People and a greater part are doubtful and take it with Reluctancy yet are they such as cannot be doubted to be sincere Protestants in Religion and most Faithful and Loyal Subjects to the King and their Objections seem to be these 1. The words only Supreme Governor are of so infinite and unlimited an Extent in the Letter that there is necessity of limiting them in the intention which intention being Implicit only and not Express may be made so various by Expositors that the same likewise is infinitely ambiguous and unintelligible and that Pious Queen Elizabeth being at her first Entry to the Kingdom as good as under the Wardships of Bishops could not avoid the Forming of this Oath of Supremacy by them on the first Act and Year of her Reign and to impose the same on the Subjects not for her Benefit but their own though after finding the same so general obscure and wrested by false Interpretations she endeavour'd by a subsequent Declaration published to have explained and limited the same according to her true intention and meaning but the same being not done by Act of Parliament proved not sufficient to relieve many doubtful and wounded Consciences amongst the People of which vide more at large before p. 167 168. 2. The words Supreme Governor include both the Legislative Judicial and Executive Power The words only Supreme exclude Parliaments and the word only excludes literally the Parliament from having any Vote in either whereas the known Law of the Land is That no Law can be Enacted to bind the People without the mutual Assent of the King and their lawful Representative in Parliament and that no Contract of Supreme Government can be made without the Assent of two Parties at least and not one only 3. The words only Supreme Governor in all Spiritual things according to the Letter include the Papal Power of Dispensation with the Law of God of Receiving Confessions of Sins Imposing Penance Excommunication Absolution and Pardon of Sins which are Powers only belonging to God in Person and ought not to be Assumed or Exercised by Angels Saints Daemons or Men. 4. The same words include Supreme Power over the Souls and Consciences of men which is a Power belonging only to God in Person and ought not to be Assumed by Angels Saints Daemons or Men. 5. When all this Supremacy in Spiritual things is congested into an Oath and the Flowers inseparable from the Celestial Crown presumptuously attempted to be torn thence and annexed to a Temporal what is the Design and Effect of it but that the Bishop Robs both God and the King of the Supremacy pretended to both but intended to neither for where will the Bishop permit the Temporal Prince to dispense with the Law of God to Receive Confession of Sins to Impose Penance to Excommunicate to give Absolution and Pardon of Sins but he will command him to desist or what is worse with his Temporal Sword to beat the Bush that the Bishop may catch the Bird or with his
both were so much concern'd and others for their own private Ambition if therefore Parliaments themselves have not or shall not sufficiently clear Ambiguities and Doubts to answer so many pretences How can it be expected that Ignorant people can clear the same upon their Oath or Conscience 3. It is permitted to Grand Juries when it doth not appear to them whether the Bill is true or false to find an Ignoramus and where the people are totally Ignorant both of the Fact and Law of Supremacy why ought they not to be allowed the same Equity according to the Truth to Answer Ignoramus 4. It is against the known Maxim That Only matters of Fact can be Testified by Witnesses and matters of Law or Right cannot be Testified but by the Law it self 8. An Usurper or Idolater may happâ—n to get the Possession of the Crown How then can a Protestant Swear to the Right of the first in Temporals or of the second in Spirituals 9. It doth not appear how a Protestant may Swear That no Foreign Prince or Person ought to have any Power Authority or Preheminence Ecclesiastical within this Realm and that he doth renounce all Foreign Power in regard it may so happen that a Protestant-Prince hath or may be born beyond Sea and be a Foreign Person and yet on failure of a Lineal Heir may happen to be the next right Heir to a Protestant King after his Decease it may seem therefore to cross Gods Providence to Swear to Renounce or Abjure all Foreign Protestant-Power as to the Succession for the Oath puts no distinction between Protestant and Papal Power but Renounces all alike if they are Foreign Persons Of the Mischiefs which ensue a false Test between Protestant and Papist 1. By the same Power is given to the Favourers of Popery to turn the Edg of all the Penal Statutes made and intended against Papists to destroy the Protestants and the Preteritions and Pardons intended the Protestants are wholly apply'd in favour of the Papist the Plagues designed against the Aegyptians are wholly let loose on the Israelites and the Passeover to which were invited the Israelites is made only a Feast for the Papist So did Bishop Bancrost in the time of Queen Elizabeth persecute all Anti-Papist-Protestants under the name of Puritans and Protected all Dominican Priests Seminaries and Papists under pretence of Opposing the Jesuits by pressing the false Tests of Recusancy to Pray in a Temple to Pray after the Common Form to Receive the Sacrament after the Common Form to take the Oath of Supremacy to use all Episcopal Ceremonies in the Worship of God and the utmost Rigor and Penalties of such Recusancy against the Anti-Papist Protestant who hath been the only Counterpoise against the Papist that he hath not over run the Land and giving Protection to Papists against the very same Tests and Penal Laws so furiously Prosecuted against the Anti-Papist Protestant So did the subtle Gundamore give a new Whet to the High-Commission-Court and turn'd the Edg of the same Originally intended against the Papists to be against the Anti-Papist Protestant And since Bishops have been discharged of that Commission yet the same Course of Bancrofts and Gundamores hath been still continued against the Anti-Papist-Protestants as then under the name of Puritans so since under the name of Fanaticks such Protestants have had the Penalties of Recusancy laid on them when Papists have Compounded for Trifles or been absolutely Pardon'd such Protestants have had the Oath of Supremacy forced on them against their Conscience when Papists have neither had Supremacy nor Allegiance required of them nor their Consciences troubled but have remained absolutely unsworn from so much as any Oath of Fidelity unless to Foreign Princes such Protestants have had their Houses utterly Disarmed and not so much left as sufficient to keep out a Thief when Papists have had their Houses full of Arms and not so much as searched such Protestant's Children have been by the Usurped Power of Bishops Certificates made Bastards because not Married with the Ceremonies of the Book of Common Prayer and this they have done by pretence of the Canon of the Council of Trent a Foreign Jurisdiction long since abolish'd by Act of Parliament but such Bishops have never troubled Papist's Marriages made by Priests or Jesuits with Romish Ceremony nor Null'd them or Bastardized their Children such Protestants have been Excommunicated Cursed and given to Satan when a Dog hath not dared against Papists to move his Tongue such Protestants have been Confiscated and cast into Prison when Papists have Triumphed in Liberty and Propriety 2. Many Able Loyal Zealous Protestant-Ministers are hereby Excluded from Preaching and Teaching the Gospel 3. Many able Loyal and Useful Instruments both in Civil and Military Offices who are Protestants are Excluded and the King and Parliament deprived of their Service 4. The Offices and Arms of the Three Kingdoms are ingross'd into the hands of Persons Recommended by Papists An Essay of the Form of a Test whereat it seems no Protestant can scruple I A. B. do utterly Testifie and Declare in my Conscience and in the presence of God and do believe that the Pope or Bishop of Rome or any Bishop on Earth is not the Head of the Catholick Church nor of any National Church of England Scotland or Ireland and that they are not Infallible and that all such Popes and Bishops as pretend to Supremacy either Spiritual or Temporal or Infallibility without a Sign of Mission from God are Hereticks I believe that the Host Consecrated Crucifixes Images Idols Reliques of Saints or Saints themselves ought not to be Worshipt or Prayed to in Publick or Private and that the Mass is Idolatry I believe neither Popes nor Bishops have any Power or Mission from God to Exact Auricular Confession or to Impose Penance or to give Absolution Indulgence or Pardon of Sin or to Redeem from Purgatory or to give or sell Heaven or Paradise or any Place in the same or to Excommunicate Curse or Deliver to Satan And I do therefore utterly Abjure and Renounce all Absolutions Indulgences Pardons of Sins and Redemptions from Purgatory given or to be given by any such said Popes or Bishops or any deriving Authority from them and defie all their Excommunications And I do Promise and Swear to be True and Faithful to our Sovereign Lord the King his Heirs and lawful Successors So help me God Whether any Test of the Conscience ought to be Penal either to Protestant or Papist It seems not 1. Because to Plant Religion by Penalty is to Plant it by the Sword whereof Christ gave neither Precept nor Example but rather a Prohibition Implicit in his Express Command to Peter Matth. 26.52 Then said Jesus unto him Put up again thy Sword into his place for all they that take the Sword shall perish with the Sword Which though it prohibit not lawful Defence to those who have the Power of the Sword which Peter had