cùm vix esset dare causam quin ratione peccati possit deferri ad Ecclesiam Object 3 Stat. Merton gives them no Jurisdiction It 's alledged That it appears by the Statute of Merton that Henry the Third writ in his time to the Bishop to certifie Marriage and Bastardy First It is to be understood therefore that in the time of Pope Alexander the Third Anno Dom. 1160. which was Anno 6. H. 2. in whose time all Matrimonial Causes beonged to the King's Courts This Constitution was made That Children born before Solemnization of Matrimony where Matrimony followed should be as Legitimate to inherit to their Ancestors as those that were born after Matrimony It is likewise further to be known that King John the Father of Henry the Third who made this Statute of Merton following was by the then Pope Innocent Excommunicated King John Excommunicated as likewise at the same time was the Emperor Otho and the whole Kingdom of England Interdicted and so remained for the space of Six Years Three Months and Fourteen Days during all which time there was no Church open for Marriages or Burials but the poorer People were buried like Dogs in Ditches and where they married God knows Through which King John was driven to such distress by his own Bishops and Barons and the French assisting the Pope against him that he was forced before he could get to be released of this Excommunication to pay the Pope vast Sums of Money and to lay down his Crown and Scepter Mantle Sword and Ring the Ensigns of his Royalty at the feet of Pandolphus the Pope's Legat and submit himself to the Mercy and Judgment of the Church Two Days some write Six it was before the Legat restored him to his Crown which he likewise received again on no better Terms then to hold the Kingdom of England and Lordship of Ireland from the See of Rome at the Annual Tribute of a Thousand Marks Silver and the Excommunication was not to be taken off but deferred till further and full satisfaction was made to the Clergy which was not done till Two Years after The Bishops being hereby arrived at so great an height of their Tyrannical Power over this King The Bishops usurped the exercise of Ecclesistical Laws by force over their Kings As that when the King having obtained absolution had gather'd a great Army to have been revenged on the French King the Arch-Bishop of Canterbury told him 't was against his Oath at his Absolution and the King in a great passion reply'd He would not defer the Business for his pleasure seeing Lay-judgment appertained not to him the Arch-Bishop presumed to threaten his native Soveraign that unless he desisted he would Excommunicate him Note therefore That in the time of H. 3. who was the Eldest Son of King John the Bishops continued to assume the Power of Lay-judments as well in Marriages as they did of shutting up of Churches in which they were made from the Pope to whom they had inforced King John to surrender his Crown and not from the King 's Writ as that Statute of Merton shews rather a proud Renunciation and scorn to answer the King 's Writ concerning Marriage then any use permitted by them to the King of the same unless he would as his Father had done lay down again his Crown to them and have Marriage judg'd according to the Law of the Pope for otherwise they tell him plainly They neither will nor can answer his Writ as appears by the Statute it self the words whereof follow 20 H. 3. Cap. 9. To the King 's Writ of Bastardy Whether one being born before Matrimony may Inherit in like manner as he that is born after Matrimony All the Bishops answer'd That they would not nor could not answer to it because it was directly against the common Order of the Church that is meant the Romish Church And all the Bishops instanted the Lords that they would consent that all such as were born afore Matrimony should be Legitimated as well as they who were born within Matrimony as to the succession of Inheritance for so much as the Church accepteth such for Legitimate And all the Earls and Barons answer'd with one voice That they would not change the Laws of the Realm which hitherto have been used and approved Coke 2 part Inst 97. It is said Though the Bishops are Spiritual Persons yet in case of general Bastardy when the King writes to them to certifie who is lawful Heir to any Lands or other Inheritances they ought to certifie according to the Law and Custom of England and not according to the Roman Canons and Constitutions yet if they do make their Certificate according to the Canon Law No remedy against Bishops making Certificates contrary to the King's Laws General Bastardy uâ—urped by Bishops not given them by Law and not the Law of the Land there appears no Remedy unless such a one as is worse then the Disease Sir Galfred le Scrope Cheif Justice saith Before this Statute of Merton the Party pleaded not general Bastardy but that he was born out of Espousals and the Bishop ought to certifie whether he were born before Espousals or not and according to that Certificate to proceed to Judgment according to the Law of the Land And the Prelates answered That they could not nor would not to this Writ answer and therefore ever since special Bastardy viz. that the Defendant c. was born before Espousals hath been Try'd in the King's Courts and general Bastardy in the Bishops Court and herewith agree out old Books and the constant Opinion of the Judges ever since Coke 2 part Inst 99. It being before granted That the Law of England cannot be changed but by an Act of Parliament and Magna Charta being before made and being a Declaration of the ancient Common Law First That no Freeman was to be put out of his Free-hold or Inheritance but per legale Judicium parium and there being no cause of its own Nature more Temporal or more concerning Succession to Temporal Inheritance then Marriage It was contrary to Magna Charta and the Common Law to judg the Fact of it by any other Judges then Juries and the Law of it by any other Judges then those of Temporal Courts and though the Pope and Bishops in those Superstitious times forced the Kings many times as they did King John to yeild his Crown and the Subjects to yeild their Marriages and other Temporal Rights to their Arbitrary and Saleable Sentence for fear of Excommunication yet doth not this any way prove that the Jurisdiction of Marriage was ever granted them by any Law or Act of Parliament or could be without it were contrary to a known Common Law and Act of Parliament which expressly gave the trial of Temporal Rights and Inheritances to a Legale Judicium parium and not to any Ecclesiastical Judges or Laws Now therefore it being clear they had
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
Duaren lib. 1. Disp c. 1. Hermann vult lib. 1. discep c. 1. Goed ad l. 9. n. 1.6.7 ff de verb. sign 2. By the Law si vis vocationi fuat testamini igitur em capito appears that after the Defendant had a Copy of the Declaration deliver'd no Capias before Judgment was to issue against him without a Fugam fecit or at least an hiding himself and the word Testamini shews there must be Productio testium Probation by witnesses of the flight or absconding and not a Latitat granted on a meer false Suggestion and Lie or on the Forgery of an Outlawry to destroy that inestimable Right of Liberty from wrongful Imprisonment and more valuable than Life it self 3. By the Law si vindiciam falsam tulit rei si velit is Arbitros tres dato forum Arbitriis fructus duplione damnum deciditor appears That the Plaintiffs were Fined pro falso elamore double the value on a Writ of Enquiry of Damage to a Jury of Three which like Commissioners for examination of Witnesses being equally chosen by the Parties were more able and equal than a numerous Jury of Twelve all chosen by the Sheriff 4. This being granted that by the Ancient Roman and Athenian Laws Oblatio Libelli preceded vocatio in jus and vocatio in jus preceded Contumacy and Probation by Witnesses preceded Sentence of the same and that Plaintiffs were punish'd for false Suggestions it follows there was neither taking of Pledges Distress Attachment Satisdation Exaction of Bail or Arrest in their Original Process nor before Judgment except on Contumacy proved by Witnesses which shews that neither Romans nor Athenians were Authors of beginning Law-Suits with Execution 5. It appears by the Law Aeris confessi rebusque jure judicatis c. That the Pagan Execution it self after Judgment was more Just and Merciful than the Papal and Episcopal is now with us before Judgment for first they were so far from Arresting before Demand and before Judgment that they could not Arrest the Defendant on Hearing and Trial and Judgment pass'd against him without giving him Monition of the Judgment and till Thirty Days Justi dies to provide the Money were expired but now on a bare Bond before Judgment and before so much as a Demand made they cast into the Goal the Husbandman from his Plow the Tradesman from his Shop and the Merchant from the Exchange without giving the least notice Thirty or so much as Three Days to provide the Money whereby they and their Families their Reputation and Trade are oftentimes destroyed not only to the ruin of themselves but great damage of the Publick for the greatest bulk of Trade of the Nation being driven on Money borrowed on Interest if it be intended what is borrowed should be applied to Trade it is impossible that they can pay interest for it to the Creditor if they must keep it at their Chambers for the Creditors to call it in again on an hour's warning or as they now do without any warning at all and imploy it at their Trade they cannot unless they may have at least warning for so small a pittance of Time as Thirty Days which the very Heathen allowed their Debtors to be free from Arrest though Judgment was past against them This abominable Cruelty of beginning Suits with Execution came not therefore from the Heathen but from the pretended Christian Romish Bishops and Clerks All Attachments Distresses Exactions of Pledges Bail and Arrests before Judgment are Executions before Judgment and come from Romish Bishops against whom the Heathen shall rise in Judgment Now that beginning of Suits with Executing by exacting of Pledges before Oblatio Libelli Bail before Flight Judgment before Hearing Distress Attachment and Arrest before Judgment was brought into Great Britain by the Romish Bishops appears by these Reasons 1. Because the Register of Writs that old Romish Idol to which more innocent Causes and Persons have been Sacrificed and Destroyed according to the proportion of the Territory it Commands than to the Turkish Alcoran is in Latine which is the Romish Language in which Register all the Original Process of Summons Attachment and Distringas are composed for Exacting of Pledges and Bail Distress imposing Penalties and Forfeitures Arrest and Imprisonment in Personal Actions and Grand-capes and Petty-capes in real before Oath of Calumny Oblatio Libelli Hearing Probation or Judgment and in Indictments by Inquisition 2. Because all old Formalities of Entries and Pleadings of Instruments and Contracts Publick and Private were Originally in Latine which shews they were formed by Romish Bishops or their Clerks in their own Language conform to their Romish Idol the Register beginning with Execution as particularly appears in all Instruments concerning Feudal Jurisdiction are Clauses and Conventions of Distress Reentry Penalties and Forfeitures horrible unjust before Oath of Calumny Ohlatio Libelli dies justi Hearing Probation Judgment or Judg but the Lord himself in his own Case over his Vassal 3. Because anciently the Romish Bishops have been Chancellors in that Court which is Officina Brevium the Shop of Writs where they are forged and have been likewise chief Judges in the other Courts of the King keeping all their Proceedings in Latine Court-hand and Chancery-hand secret from the understanding of King and People whereby they exercised what Tyranny and Oppression they pleased 4. Because they and other Ecclesiastical Persons as Abbots Priors and the like have Possess'd the Third part of all the Baronies Honors and Mannors in the Land and had they not been stopt by the Statutes of Mortmain might by this time have got all this way therefore of taking Distress Penalties and Forfeitures before Judgment advanced their Interest in Tyranny and made them Arbitrary and absolute Judges in their own Case 5 Because anciently the Romish Bishops have been Outlawries and Excommunicato Capiendos and Judgment of Heresies the Romish Inquisition in Disguise and to the shame of Protestants still claim to be in their Ecclesiastical Courts Judges of Heresie whereby as the Common Law Judges by their Outlawries which are Temporal Excommunicato Capiendos they by their Excommunicato Capiendos which are Spiritual Outlawries have brought in the Romish Inquisition to begin all Suits with Execution before Judgment 6. Because the Greek Bishops first destroyed the Equal Law of the Twelve Tables Si in jus vocet aâ—que eat which is before interpreted Statim eat and made it in jus vocati statim eant aut satisdent which Satisdation included all the Rabble of Distresses Pledges Bail Mainprize Arrests and Imprisoments before Oblatio Libelli Hearing Probation or Judgment which Greek Bishops were the Instruments of that wicked Empress Theodora who foisted into the Laws of Justinian what they pleased concerning Judicial Proceeding touching Marriage Filiation and Succession and all other matters and the Romish Bishops followed them in their wickedness in whatsoever was for their gain and brought the same with themselves and the
Language of the Beast into Great Britain and Ireland to infect with the same Plague all Judicatures of these Noble Kingdoms vid. How Satisdation before Judgment came in the Authorities cited Calv. Lex tit vocare They Pledg before Summons Summon before Copy Copy before Oath Punish before Contumacy Judg before Hearing or Probation and Arrest before Judgment It cannot be here objected That I proceed partially against Ecclesiastical Judges seeing the Temporal are here equally Taxed with the same Errors and I contend with the Vices and not with the Persons of either Yet so much I may affirm for Truth and shall after prove against Ecclesiastical Judges that the Papal and Episcopal Forms of Preposteration of Execution before Judgment by beginning the Original Process with Attachments Distresses Exactions of Pledges Bail Mainprize Penalties Forfeitures Confiscations Arrests and Imprisonments before a Coppy of the Declaration given and before Oath of Calumny Hearing Probation or Judgment and Outlawries and Excommunicato Capiendos both before and after Judgment were Originally brought both in the Ecclesiastical and Temporal Courts of the Kingdom of Great Britain and Ireland by Romish Bishops and Priests and Parliaments in time of Popery have been so far deceived by them to confirm their Superstitious Formularies in the Temporal Courts in so high a degree as now the Temporal Judges are not able to Reform without the Assistance of an Act of Parliament But I shall first prove that the said Forms are contrary to the Scriptures and Anti-Christian The Texts of Scripture follow Job 24.3 They drive away the Ass of the Fatherless and take the Widows Ox for a Pledg Verse 9. They pluck the Fatherless from the breast and take a. Pledg of the Poor Ezek. 18.7 And hath not Oppressed any but Restored to the Debtour his Pledg Ezek. 33.15 If the Wicked restore the Pledg give again that be had Robbed Amos 2.8 And they lay themselves down upon Cloaths laid to Pledg Psal 37.21 The Wicked borroweth and payeth not again Matth. 5.25 Agree with thine Adversary quickly while thou art in the may with him lest at any time the Adversary deliver thee to the Judg and the Judg deliver thee to the Officer and thou be cast into Prison Verily I say unto thee Thou shalt by no means come out thence till thou hast paid the uttermost Farthing Matth. 18.15 If thy Brother trespâ—ss against thee go and tell him his fault between thee and him alone if he shall hear thee thou hast gained thy Brother But if he will not hear thee then take with thee one or two that in the Mouth of two or three Witnesses every word may be established And if he shall neglect to hear them tell it unto the Church but if he neglect to hear the Church let him be to thee as an Heathen man and a Publican After the Servant who had been forgiven by his Lord Ten Thousand Talents Verse 28 Went out and found one of his fellow-servants which ought him an Hundred Pence and he laid hands on him and took him by the Throat saying Pay me that thou owest And his fellow-servant fell down at his feet and besought him saying Have patience with me and I will pay thee all And he would not but went and cast him into Prison till be should pay the Debt Verse 32. Then his Lord after that he had called him said unto him O thou wicked Servant I forgave thee all that Debt because thou desiredst me Shouldest not thou also have had compassion on thy fellow-servant even as I had pity on thee And his Lord was wroth and delivered him to the Tormenters till he should pay all that was due unto him As to Criminal Proceeding the Texts are 1 Tim. 5.19 Against an Elder receive not an Accusation unless under two or three Witnesses Numb 35.30 Whoso killeth any Person the Murderer shall be put to death by the mouth of Witnesses but one Witness shall not Testisie against any Person to cause him to die Moreover ye shall take no satisfaction for the life of a Murderer which is guilty of death but he shall be surely put to death Deuter. 17.8 If there arise a matter too hard for thee in Judgment between Blood and Blood between Plea and Plea and between Stroke and Stroke being matters of Controversie within thy Gates then shalt thou arise and get thee up into the place which the Lord thy God shall chuse And thou shalt come unto the Priests the Levites and unto the Judg that shall be in those days and enquire and they shall shew thee the Sentence of Judgment From all which may be infer'd 1. That no man ought to be Summon'd before a Judg till a Copy of the Plaintiffs Declaration be first given him For Christ saith If thy Brother Trespass against thee go and tell him his Fault between thee and him alone which is fully performed by giving him a Copy of the Declaration or Bill of Complaint and without it the same cannot be done nor the full State of the Case be Represented to him nor he take time of deliberation for an Answer And from this Precept of Christ will follow first the Ordaining of Editio vocatio in jus simul ex continenti by the Popish Theodor an Bishops in the Civil Law is a corruption and destroying of the Excellent Law of the Twelve Tables Si in jus voces atque eat which is already proved to have implied a Preceding Oblatio Libelli and was the clear Law of Nature and immutable in all Civil Actions 2. That the Law of Scotland of including the Libel in the Summons though it far excel our Summons by Writs yet it is not so perfect as the Precepts of Christ to make the Oblatio Libelli or to give the Copy of the Declaration to the Defendant before Summons for first he must be forced to send many times Hundreds of Miles to a Judg to get a Summons before the Return of which all the business if there is no Contumacy may be far better agreed and ended between him and his Brother at home Secondly If there is no Contumacy as there can be none before a Copy of the Declaration delivered by which the Demand is made it is unjust to lay such a Punishment on a Defendant to run Hundreds of Miles to his great Cost and Trouble in England to appear before a Judg at Westminster and when he comes there no Bill in Chancery nor any Declaration at Common Law is put against him And in Scotland to appear at Edenburgh at a longer day when he was ready and tender'd to satisfie his Brother at home in a shorter and he refused only to put him to Charge and Vexation Thirdly It is unreasonable and unjust that the Plaintiff should be compell'd to send so far for such a Trivial Formality as the hand of a Judg to his Libell'd Summons or to expect no Judicial assistance from it if he gratis make Oblatio Libelli as
the Servandes of the House or other famous Witnesse and sall execute their Offices and Charge and thereafter sall offer the Copie of the saidis Letters or Precept to ony of the Servands quhilk gif they refuse to do that they affix the samin upon the Èœett or Dure of the Persones Summoun'd and siklike gif they get na entress they first knockand at the Dure Sex Knockes they sall execute their Office before famous Witnesse at the said House and dwelling place and affix the Copie upon the Èœett or Dure thereof as said is quhilk sall be leiful and sufficient Summounding and delivering of the Copie and the Party and Officiar sall not be halden to give ony usher Copie bot at their awin pleasure And every Officiar in his Indorsation sall make mention of his awin Execution in manner fore said and the Partie at quhais instance the Letter or Precept is direct sall pay to the Officiar Executour the Expenses of the Copie affixed as said is and sall be taxed and given again to him the giving of the Decreet or Sentence gif he happenis to obteine And gif the Officiar heis foundin culpable in the Execution of his Office he sall be put in our Soveraine Lordis Prison and punished in his Person and Gudes at the Kingis Grace Will. Coke 4. part 99. saith The Common Pleas may in many cases proceed against their own Officers by Bill without Writ and why may not all the Subjects have the same Right as well as the Officers of the Common Pleas In London before the Mayor and Aldermen Debt and Personal Actions are determined by Bill without Writ City-Law 3. And so are Assises of Nusance ib. 4. and why may they not by Copy of the Bill be commenced better than by Writ over all the Kingdom The mischiefs of Original Writs from the Chancery Besides the Delays of Original Writs and Process by remoteness of Courts whither they are to be sent for and by the multiplications of Aliases and Pluries and the manifold dangers when gotten and executed to be again overthrown and nullified by Abatements for a multitude of frivolous Causes and Formalities and likewise for so many sorts of Variances as before mention'd of all which the Declaration might have been free if no Writ had preceded 1. It is excepted against Writs that Declarations are not amendable and it costs many times so much in amending the Misprision of Clerks in their Writs that the Plaintiff if he is not so poor as not to be able were better abate his own Writs and Declaration himself and pay Costs and buy Twenty new Writs than get one of the old amended 2. Writs Original are altogether useless except to get Money for nothing 3. They are saleable contrary to Magna Charta Nulli vendemus Justitiam and the Civil Law for Lege Julia tenetur repetundarum qui accepit aliquid ob Judicem delegatum dandum mutandum vel ob non dandum c. And what doth a Writ of Right a Justicies or any Original do besides but assign a Delegat Judg to hear the Cause in the Kings-Bench or Common-Pleas or Lords-Court or County-Court Then 't is contrary to Equity the Plaintiff should be compell'd to buy a Writ which is not only useless but pernicious to his Declaration and puts it in ten times more danger to be overthrown than if he might as he ought be permitted to use it without a Writ and the Plaintiff being to deliver a Copy of his Declaration Expensis Actoris to the Defendant 't is no reason he should be at any expence to pay Clerks for Writs impertinent 4. As to the Writ in Chancery of Subpaena Mischiefs of the Chancery Writ of Subpaena which is to be distinguished from the Writs to the Common Law Courts it is contrary to Magna Charta Nulli negabimus Justitiam for if a Poor man Sue a Noble-man there a Chancellour will deny a Poor man his terrible Writ which he uses to grant under a Hundred Pound Penalty in Terrorem Pauperum and he shall get no more of him if he do that at a greater price than the Writ would have cost but a poor begging Letter to the Noble-man to send his Answer to the Complaint against his Oppression which is no other than to bring into England the old Slavery of Rome whereby no Slaves were permitted to Sue their Lords before the Pretor or any other Judg were their Tyranny over them never so great and unjust What a wretched dishonour is it to Publick Justice which heretofore was blind to the Person that she turns now blind to the Cause and who heretofore carried the Sword in her hand Parcere Subjectis debellare superbus to have now lost her Sword and got a Crutch to become only a blind Beggar when she is to approach the Gates of Nobles neither is there any Law of God or man in England to justifie a Chancellour that he shall presume to use a different process of Concumacy against the Commons Chancellour hath no Power to Imprison Commons any more than Lords which he dares not use against the Lords for if it be not lawful for him to Issue Attachments or Commissions of Rebellion against the Lords or to imprison them then is it not lawful for him to Issue Attachments or Commissions of Rebellion against the Commons for both are equally Interested in Magna Charta and the Petition of Right not to be imprison'd without the lawful Judgment of their Peers and they being both Allies and Confederates by the said Acts to maintain the Commons Liberty The Liberty of the Commons is the Out-work which preserves the Liberty of the Lords if the Commons be Invaded though for the present such Invasion touch not the Lords yet when it hath destroyed the Liberty of the Commons the Lords will not be able to defend theirs when their Allies are lost The Liberty of the Commons is the Outwork which preserves the Liberty of the Lords the Liberty of the People is the Outwork which preserves the Liberty of the Parliament the Liberty of the Subjects is the Outwork which preserves the Safety of the King and as Solomon saith Prov. 20.28 Mercy and Truth preserve the King and if contrariorum contraria est ratio Cruelty and Fictions of Writs of Subpoena's in Chancery Latitats in Kings-Bench and Capiases without Summons in Common-Pleas wherewith they abuse the Kings name in false imprisonments of his Subjects without Crime or Cause destroys the prisonments of his Subjects without Crime or Cause destroys the Safety of the King himself and in a Case between the Duke of Lenox and the Lord Clifton M. 10. Jac. Though a Lord was not to be Committed for Contempt in a Poor mans Case yet in this Case between two Lords Chancellour Egerton said If Noble-men will commit Contempts they are to be Committed Now that the Imperial Power which hath been usurped by Chancellors to imprison the
may be easie for the Priests to put Apples Grapes and Nuts in a Coffin and by Night to make fearful Noises Shrieks Groans and Counterfeit Apparitions about Graves and Tombs whence the horror of the very place and darkness make such impressions on timorous Fancies as they shall not dare to approach much less examine the matter and take out the new Body out of the Coffin and put in one had been Buried Seven Years and then a Vault made of purpose to make a noise under ground in the Church and Sofronio know nothing of all this 5. But whether it were Witchcraft or Cheat it is most horrible wickedness to make Use of either under pretence of Church-Discipline or the Worship of God seeing they both come from the Devil Alvarez a Portugal Priest Relates of himself That at the Town of Barva in Ethiopia there appeared a Terrible Cloud of an infinite number of Locusts which at length fell and Devoured the Countrey and that he and another Portuguez Priest took a Consecrated Stone and the Cross and sung the Letany and in this manner went in Procession through the Corn-Fields for the space of a Mile unto a little Hill and there he caused them to take a quantity of the Locusts and made of them a Conjuration which he carried with him in writing which he had made the Night before Requiring them Charging them and Excommunicating them Willing them within Three Hours space to begin to depart towards the Sea or towards the Land of Morez or towards the Desart Mountains and to let the Christians alone and if they obey'd him not he called and adjured the Fowls of the Air the Beasts of the Field and all the Tempests to scatter destroy and consume their Bodies And for this purpose he took the quantity of Locusts and made this Admonition to them that were present in the name of themselves and those which were absent and so let them go and gave them liberty The Locusts began forthwith to depart and in the mean while a mighty Tempest and Thunder arose toward the Sea which drowned all the Locusts in the River and the dead Locusts remained in heaps two Fathom high on the Banks so by the Morning there was not one Locust left alive This Excommunication if true were Conjuring and Witchcraft Flies Excomunicated Peter de Nathal in vita Bernhardi Relates That St. Bernhard denounced the Sentence of Excommunication against Flies Whether this may be call'd Witchcraft or a Silly Prank of St. Simplicius I cannot say but if he could Excommunicate Flies without a Magical Telesme or Inchantment Fishes Excommunicated he shall be the Domitian of Divinity Mere. Gallo lib. 6. p. 592. saith That Anno Domini 1593. The Bishop of Conagtion very malitiously Excommunicated the Innocent Fishes Theodosius a Bishop of Alexandria Dead Excommunicated Excommunicated Origen Two Hundred Years after his Death if he is censur'd only for a Cheat 't is less than so wicked a practice deserves Now though God may permit wicked men to Excommunicate and Daemons Witches wild Beasts and Tyrants to abuse the Bodies of the best men after they are dead they have no Power to touch the Soul And we ought not to fear but contemn their Excommunication for so saith Christ Matth. 10.28 Fear not them that can kill the Body but are not able to kill the Soul but rather fear Him which is able to destroy both Soul and Body in Hell Excommunication of the Devil Devils Excommunicated Mengus de Flagell Daemon Describes part of the Form of the Romish Exorcism to be I Command you Oh Davils who are come to the help of those that vex this Creature of God N. upon pain of Excommunication and Immersion into the Lake of Fire and Brimstone for a Thousand Years that ye yield no Aid and Assistance to these Devils It seems the Devil is of the Society of these Romish Priests otherwise he could not be Excommunicated To grant a Bishop Power of Excommunication is to grant him the Legislative Judicial and Executive Power Excommunication gives the Pope the Legislative Power over all Nations for by this he made his Canon-Law whensoever he pleased to be observed through Christendom by no other Obligation than his Command they should be observed on pain of Excommunication By granting the Power of Excommunication the Legislative Power is granted and the Clergy in Convocation used anciently without asking the Royal Assent to make Canons touching matters of Religion to bind not only themselves but all the Laity without Assent of the Lords and Commons in Parliament It was used in ancient time for Creditors besides other Security to procure Debtors to Swear they would pay them and thereupon there being then no Arrest in the Temporal Courts for Debt they Sued them in the Spiritual Courts on their Oaths and they granted an Excommunicato Capiendo to Arrest them without Bail which were so frequent that E. 1. could not keep his Servants free from Arrest in his Court till to prevent it he caused a Writ De Promulgantibus Sententiam Excommunicationis Capiendis Imprisonendis Commanding to Imprison such as Excommunicated any of them Rot. Parl. 25. E. 1. Intus Henry the Second according to Hovedon would That all such of the Clergy as were Deprehended in any Robbery Murder Felony Burning of Houses and the like should be Tried and Adjudged in the Temporal Courts as Lay-men were But Becket Arch-Bishop of Canterbury stood proudly on the Pontificial Prerogative of the Clergy That no Clergy-man ought to be Tried but in their own Spiritual Courts and by men of their own Coat And if they were Convicted before them they ought only to be deprived of their Office but if they after offended they should be Judged in the Kings Courts This Power of Judgment he drew to his own Court only by his Power of Excommunication A Copy of a Prohibition of Excommunication A true translated Copy of a Writ of Prohibition granted by the Lord Chief Justice and other the Judges of the Common-Pleas in Easter-Term 1676. against the Bishop of Chichester who had proceeded against and Excommunicated one Thomas Watersfield a Church-Warden for Refusing to take the Oath usually tendred to Persons in such Office to Present such who absent from Church by which Writ the Illegality of all such Oaths is Declared and the said Bishop Commanded to Release and take off his said Excommunication c. CHarles the Second by the Grace of God King of England Scotland France and Ireland Defender of the Faith c. To the Reverend Father in Christ Ralph by Divine Providence Lord Bishop of Chichester or any other competent Judg in his behalf whatsoever Greeting We are informed in our Court before our Justices at Westminster on the behalf of Thomas Watersfield That whereas by the Laws of this our Realm of England no Person ought to be Cited to appear in any Court Christian before any Judg Spiritual to