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
and no Certificate of Bishops hath power to take that right from them 7. Here the wantonness of Widows is forbidden who are for new Husbands as soon as the old is put in his Grave whereby who are Fathers of their Children is made uncertain 8. Here is no false Fathering of Children on those who are within four Seas 9. Here is no punishing Men twice for one offence once by the Temporal Court and then by the Spiritual Court or contrary punishments by contrary Courts one by the Contentious Court and another by the Penitential Court 10. Here is no Auricular Confession of their Wives or Daughters by Priests in Temples or Chambers and defiling thereby of their Families 11. Here is no punishing of Women for bringing forth Children nor the Murders of so many Infants caused thereby as by the Papist Laws is continually done Yet I conclude though the Law of the Turk is far better than that of the Pope and shall rise in Judgment against such as plant his Canons in their Courts in defiance of the Law of God and Nature I think neither a fit Rule to judge Marriage Legitimation or Succession by CHAP. V. Marriage Filiation Aliment and Succession not to be judged by Ecclesiastical Laws THE Question is Whether Marriage Legitimation and Succession ought to be judged by Ecclesiastical Laws No English Lawyer can mention my Lord Coke without great honour but how he came so biass'd as to endeavour to set up Papal and Episcopal Laws under the name of Regal appears not Object 1 It is objected by Coke lib. 5.1 part 40. in Cawdryes Case That the Kingdom of England is an absolute Monarchy and if the King cannot Authorize by his Commission or Writ Ecclesiastical Judges to determin and judg those great and important Causes of Matrimony Divorce and general Bastardy by Certificate of the Bishop who is the Ecclesiastical Witness and Judg both of Fact and Law and by the Canon Laws which by use and custom are now our Ecclesiastical Laws Then he is disabled to be supreme Governour of this Realm in all Spiritual things or Causes as well as Temporal according to the Oath of Supremacy due to him And that he could not then cause Justice to be administred to his Subjects in these so great and important causes of Matrimony Divorce and general Bastardy on which depends the strength of mens Descents and Inheritances This I conceive though not in the same words yet in sence and substance to be the weight of my Lord Coke's Argument whereby he would make use of Marriage as one means amongst his many other to set up an Ecclesiastical Law and Judg over the Temporal Freeholds and Inheritances and other Birth-rights of the Subjects To which is answer'd First As to the words Absolute and Supream I suppose he intended no such absolute Monarchy or Supremacy as is not under the Law of God though it be not so express'd in the form of the Oath of Supremacy For though Regum timendorum in proprios greges Ecclesiastical Laws not needful to the King's Supremacy but hurtful Reges in ipsos imperium est Jovis then I think he doth not intend it to be above the Law of the Land seeing the King himself by his Oath is pleased to oblige himself to his People to govern according to that Law where it is not contrary to the Law of God Then as to the pretended want of Power of doing Justice concerning causes of Free-hold and Inheritance depending on marriage except by Ecclesiastical Laws and Judges that is very strange for how was Justice done in the times of Primitive Christianity for many Hundred Years after Christ when neither Bishops or any other Ecclesiastical Judges ever pretended Jurisdiction todetermin Temporal Right or Propriety but left the same to be judged by the Imperial Laws How was Justice done in the time of Henry the Second when the Jurisdiction of all Matrimonial causes remained in the Temporal Courts Richard the First his Son being the first as Matthew Paris writes whom the Clergy got by his publick Edict to give the Jurisdiction of Power and Gifts by reason of Marriage and of all Matrimonial causes to the Bishops Courts and the same Richard likewise gave them Jurisdiction of all breach of Faith Promises and Oaths whereby if much of the Power so rashly granted had not been by him so speedily resumed they had hookt to themselves the whole Jurisdiction from the King's Courts of all Contracts and Conveyances Bonds and Obligations as well as Marriages concerning Temporal Goods and Inheritances And why cannot general as well as special Bastardy be tryed at Common Law And how likewise are all Rights depending on all Marriages made during the late Civil Wars by pretence of any Ordinance of Parliament made by 12. Car. 2. cap. 33. to be tryed by a Jury and the Common Law and not by Certificate of the Bishop or any Ecclesiastical Judg to the advancement and not prejudice of Justice and a far greater expedition and advantage to the same would it be if by the like Act the Jurisdiction of all Marriages and Legitimations as it was in the time of Henry the Second were again restored to the Common-Law-Courts So likewise anciently Bastardy alledged in an Action of Trespass was triable by Jury but now usurped by Bishops as well in personal as real Actions 4. Edw. 4.35 Object 2 Coke lib. 5.1 part in the same case of Cawdry it is further alledged Circumspectè agatis gives no Jurisdiction of Marriage to Bishops That the Statutes of Circumspectè agatis made 13. Eliz. 1. of Articuli Cleri made 9. E. 2. Anno Domini 1315. of 15. E. 3. Cap. 6. of 31. E. 3. Cap. 11. give Jurisdiction of marriage to Bishops To which is answer'd That in the Statute of Circumspectè agatis there is not a word mention'd of marriage but only by it Jurisdiction is given to the Bishops of Fornication and Adultery which is not Marriage but rather Anti-marriage for Marriage is an Ordinance of God Fornication and Adultery are Ordinances of the Devil and whereas before the Jurisdiction of Fornication and Adultery as acknowledged by Coke lib. 5.1 part 488. was in Leets under the name of Letherwit or more properly Lecherwit yet had Leets never Jurisdiction of Marriage or Divorce neither consequently could Bishops have it from them As for Articuli Cleri and the other Statutes there is not a word in them concerning Marriage nor so much as of Fornication and Adultery the Jurisdiction therefore pretended was never given by any Statute Linwood likewise expounds the words of the Statute of Circumspectè agatis which gives Bishops Jurisdiction of all deadly Sins as Fornication and Adultery and the like Non intelligas de omni peccato mortali sed de tali cujus punitio spectat merè ad forum Ecclesiasticum nam si de ratione cujuslibet peccati mortalis cognosceret Ecclesia sic periret temporalis gladii Jurisdictio
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
not to be objected against us because we are not subject to Foraign Laws Again that custom or use of Civil or Canon-Laws or Precedents doth not make Civil or Canon-Law the Law of England appears by the use of Sentences of Philosophers and Poets and Precedents of Historians all as much used in Courts of Records of Courts of Judicature as the Civil or Canon-Law yet doth not this use or custom make these Sentences of Philosophy and Poets and the like to be the Law of England or obligatory to the People of England unless such Sentences of Philosophers and Poets are selected from the rest and inacted or confirmed by Act of Parliament to be hereafter the Laws of England And they are so far otherwise from being Laws of England that Cardinal Woolsey Mich. 21. H. 8. Coram Rege was Indicted That he intended Antiquissimas Angliae Leges penitus subvertere enervare universumque hoc Regnum Angliae ejusdem Regni populum Legibus imperialibus vulgo dictis Legibus Civilibus earundem Legum Canonibus in perpetuum subjugare subducere c Let any shew a sensible reason why the Bishops and Ecclesiastical Judges who actually bring in the whole heap of Civil and Canon Laws to judge of the Marriages Filiation and Succession of the Subjects and amongst them the new coin'd Law at the Council of Trent made when Forein Jurisdiction was abolish'd and thereby actually deprive him of that invaluable liberty to which every Native Subject is born and is confirmed to him by so many Acts of Parliament And those great Fundamental Acts Magna Charta and the Petition of Right to have his Birth-right tried per legale judicium parium deserve not as high a censure by Parliament as Cardinal Woolsey had who only intended to do the same And if any hath any mind to consult besides the Laws and Precedents against Forein Laws and Precedents Bod. lib. 1. of a Common-wealth fo 107 108. will give him some satisfaction Forein Laws become not the Laws of this Land by being used by Lawyers where he saith It was in most strong Terms judged by a Decree in the Court of Paris in the Case of Philip the Second the French King That be was not bound unto the customs of the Civil Law at such time as they who were next kindred would have redeemed of him the Countrey of Guyens howbeit that many both think and write the Prince to be bound to that Law for that they think that Law to be Common to all Nations and not Common to any City And yet than the which Law the Romans themselves in some Cases thought nothing more unreasonable But our Ancestors would not have even our Subjects bound to the Roman Laws as we see in the Ancient Records that Philip the Fair erecting the Parliament of Paris and Mompelier declared That they should not be bound unto the Roman Laws And in the erection of Universities the Kings have always declared That their purpose was to have the Civil and Canon Laws in them publickly professed and taught to make use thereof at their discretion but not that the Subjects should be any way bound thereto lest they should seem to derogate from the Laws of their own Countrey by advancing the Laws of strangers And for the same cause Alaricus King of the Goths forbad upon pain of death any Man to alledge the Roman Laws contrary to his Decrees and Ordinances which M. Charles du Moulin my Companion and Ornament of all Lawyers mistaking is therefore with him very angry and in reproach calleth him therefore barbarous howbeit that nothing was therein by Alaricus decreed or done but that which every wise Prince would of good right have decreed and done For Subjects will so long both remember and hope for the Government of Strangers as they are Govern'd by their Laws The like Edict there is of King Charles the Fair and an old Decree of the Court of Paris whereby we are expresly forbidden to alledge the Laws of the Romans against the Laws and Customs of our Ancestors Yea the King of Spain also hath upon Capital pain forbidden any Man to alledge the Roman Laws in confirmation of their own Laws as Oldrad writeth And albeit there was nothing in the Laws and Customs of their Country which differ'd from the Roman Laws yet such is the force of that Edict that all men may understand that the Judges in deciding of the Subjects Causes were not bound unto the Roman Laws And therefore much less the Prince himself who thought it a thing dangerous to have his Subjects bound unto strange Laws And worthy he is to be accounted a Traitor that dares to oppose strange Laws and strange Decrees against the Laws of his own Prince In which doings when the Spaniards did too much offend Stephen King of Spain forbad the Roman Laws to be at all taught in Spain as Polycrates writeth Which was more straightly provided for by King Alphonsus the Tenth who commanded the Magistrates and Judges to come unto the Prince himself and as often as there was nothing written in the Laws of their Country concerning the matter in Question Wherein Baldus is mistaken when he writeth the Italians to be bound to the Roman Laws but the French no otherwise than so far as they should seem unto them to agree with Equity and Reason For the one is as little bound as the other howbeit that Italy Spain the Countries of Province Savoy Languedoc and Lyonnois use the Roman Laws more then other People And that Frederick Barbarossa the Emperour caused the Books of the Roman Laws to be published and taught the greatest part whereof have yet no place in Italy and much less in Germany But there is much difference betwixt a Right and a Law for a Right still without command respecteth nothing but that which is good and upright but a Law importeth a Commandment for the Law is nothing else but the Commandment of a Soveraign using of his Soveraign Power Wherefore then as a Soveraign is not bound unto the Laws of the Greeks nor of any other stranger whatsoever he be no more is he bound unto the Roman Laws more then that they are conformable unto the Law of Nature which is the Law whereunto saith Pindarus all Kings and Princes are subject From which we are not to except either the Pope or the Emperour as some pernicious Flaterers do saying That those two viz. the Pope and the Emperour may of Right without cause take unto themselves the Goods of their Subjects Object 5 Forein Laws cannot be baptized with the name of the King's Laws without act of Parliament As to what is mention'd of baptizing Forein Ecclesiastical Laws by the name of the King 's Ecclesiastical Laws of England he seems still to mistake and puts baptizing by the name where it should have been confirmation by the name and that confirmation too to be given not by the Bishops but the
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
who ought only to stand to Caesar's Judgment Seat and to be tried per legale judicium parium for the same According to this principle Henry the first Pope Paschal seeking to incroach on the liberty of the Kingdom writes unto him in this manner Netum habeat sanctitas vestra quod me vivente auxiliante deo dignitates usus Regni nostri Angliae non imminuentur si ego quod absit in tanta me dejectione ponerem Optimates mei totus Angliae populus id nullo modo paterentur Let your Holiness know that by God's help while I live the Dignities and Customs of our Kingdom of England shall not be diminished and though I which God forbid should suffer my self to fall into so dejected a condition my Nobles and whole People of England will never suffer it Object 7 It is further objected in behalf of Trial of marriage by Ecclesiastical Laws that by the Statute of 25 H. 8. c. 19. which gives power to the King to appoint 32 persons to examin the Canons and to continue such as they think fit and abridge the rest It is provided That such Canons Constitutions Ordinances and Synodical Provincials being already made which be not contrariant or repugnant to the Laws Statutes and Customs of this Realm nor to the damage or hurt of the King's Prerogative Royal shall now still be used and executed as they were before the making of this Act till such time as they be viewed searched or otherwise order'd and determined by the said 32 persons or the most part of them which Statute is revived 1 Eliz. 1. To which is answer'd That 1. what is contrariant or repugnant to the Law of God is made void without this proviso and the assuming the Jurisdiction of marriage and dividing Inheritances insuing thereby is before proved to be Anti-Christian for Spiritual persons who alledge themselves Successors of Christ and much more therefore the assuming the Legislative power or giving Laws or Canons for the same 2. It is shewen likewise before that the same power of Legislation and Jurisdiction concerning marriage was usurped by Fire and Faggot and Excommunication and therefore their Canons concerning marriage are not intended or if they were yet this proviso cannot Lawfully preserve such usurpations so contrary to the Law of God 3. It is manifest that all Ecclesiastical Jurisdiction and Laws and Canons of marriage are contrariant and repugnant to the Laws Statutes and Customs of this Realm as First the Canons then made were That marriage should be a Sacrament and thereby draw to it self Ecclesiastical Jurisdiction which latter Acts of Parliament establishing the Protestant Religion doth thereby abolish the being of marriage a Sacrament and consequently the Jurisdiction Ecclesiastical incident to it as a Sacrament and the Canons which make it so or give any Ecclesiastical Jurisdiction relating to the same 4. All Ecclesiastical Canons of marriage are contrariant and repugnant to Magna Charta and draw the Subject from his liberty propriety and Birth-right ad alias leges aliud examen and aliud judicium then legale judicium parium which Magna Charta of liberties to the Subject hath been confirmed by several Kings succeeding above thirty times Object 8 It is objected Admit there is no Act of Parliament gives Ecclesiastical Courts Jurisdiction of Marriage yet the unwritten Law of Use and Custom which is the Common Law of England and so long toleration gives it To which may be answer'd That by the Canon Laws Malus usus abolendus besides there was never any use of Jurisdiction of marriage in the Ecclesiastical Courts otherwise then in reference to the same as being a Sacrament which being now taken away cessante causa ratione legis cessat lex So likewise where the thing which a Use or Custom concerns is but changed the Use and Custom vanisheth as if by custom a Rate Tith be paid for two Fulling Mills in one House and one of them is changed to a Corn Mill the custom is gone But besides this being malus usus is of it self void and were it never so long used can never grow to have the obligation of the Common Law or to be thereby the Common Law As was well answered by a young Gentleman when complaint was made in Parliament against the wrongful incroachments of the Ecclesiasticks and they alledged for themselves That they had used and accustomed time out of mind to practise what was excepted against He reply'd So have Thieves at Shooter's Hill used time out of mind to Rob there yet the Law allows no such prescription nor doth the forced Toleration of their wickedness by such people as were not able to resist their Robberies oblige Successors to follow their precedents Reasons against Ecclesiastical Laws concerning Marriage 1. Ecclesiastical Laws of Marriage came from the Devils c. The first Reason against Ecclesiastical Laws is in regard of the wicked Authors for all the Laws by which Bishops judge Marriage Filiation Aliment and Succession were invented by Daemons Pagan Gods and Goddesses Magicians Aruspices Astrologers South-sayers Priests of Priapus and Venus Jupiter Juno Cybele Flora Diana common Prostitutes Popish Saints Popish Councils Popes or Papists The Canon prohibiting and nulling all Marriage without a Priest in a Temple except by the Pope's good License or Dispensation was made by the Pope and the Council of Trent as appears Ego Concil 147. pt 5. Concil 197. pt 6. as a main Pillar to support their tottering Kingdom against the growing strength of the then Lutheran Protestants All marriage Preists instituted in the Mysteries of Priapus and they took their pious precedents from the old Pagan Priests of Priapus and Venus and they had it from their Damons or Devils That all the ancient Pagan Priests were first initiated in the Mysteries of Priapus before they could be capable to execute the Priests office cannot be denied and is testified by divers Authors and particularly by Cornelius Agrippa de van Sci. p. 738. in these words Sordidissimus Priapus pro Deo habitus hunc coluerunt primi illi Religionum artifices Chaldaei Aegyptii Assyrii Babylonii Arâ—bes Scythae Aethiopes ac perinde tota Africa Asia Europa nec fas erat ullum sacerdotem fieri qui Priapi sacris non erat initiatus Hic est ille Belphegor idolum omnium antiquissimum quod Chamos dictum est à Chamo filio Noe. The filthy Priapus was estemed a God and was worshiped by those first founders of Religion the Chaldeans Egyptians Assyrians Babylonians Arabians Scythians Phoenicians Ethiopians and even all Africa Asia and Europe neither was it lawful for any to be a Priest unless he were first initiated in the Rites of Priapus This is that Belphegor of all other Idols the most ancient which is likewise called Chamos of Cham the Son of Noah Now this was the Law of these Priests for the wicked ends which are after mentioned Dispensation with Incest came
Juvenal Veniet cum signatoribus Auspex and of Ovid Mense malum Maio nubere vulgus ait and they declared to the parties the unlucky Ides Kalends and all the dismal times and days which got the Cheats much money from the foolish people and to continue the same Trade the same was revived by Popes and Councels of Laodicea Iterda and Trent by their prohibitions of Marriage in times of Advent Septuagesima and Rogation Pope Soter made the Law prohibiting Marriage without delivery of the Woman by the Father and receiving a Benediction from the Priest Delivery by the Father and Benediction by the Priest yet Christ saith For this cause shall a man leave father and mother and though a Father may deny to give his Daughter so liberal a Portion if she marry without his consent as he would give with it yet can he not prohibit her to marry and when Rachel said to Jacob Give me children or I die and he in anger replyed Am I God he thereby shews that 't is not the Benediction of the Priest or Pilgrimages to Saints cause fertility or sterility but Children are the gift of God Marriage within the fourth degree Pope Calixtus made the Law prohibiting Marriage within the fourth degree either of Consanguinity or Affinity and others extend the same as well to Spiritual as Carnal kindred The Law prohibiting Marriage without License was first set up by the Priests of Priapus and Venus License to marry And the Priests of Diana her self could no more live without License-money for Marriage then those of Venus which made the Virgins of Greece before they presumed to marry humbly to beg the Goddess's pardon that they left her Nunnery for which they brought good Fees and Offerings to the Priests Power of the Pope translated to the Arch-Bishop of Canterbury The Law of Dispensations Legitimations and Confirmations of Marriages and Children and the whole Papal power therein translated to the Arch-Bishop of Canterbury by 25 H. 8.21 was made by Papists in a time of Popery The Law of Banes was invented by Popes and revived by the late long Parliament Banes and the Laws of New England only translating the Marriage to the Magistrate instead of the Priest Marriage without a Priest or Temple The Law prohibiting marriage without a Priest and a Temple was invented by the Priests of Priapus and Venus and revived by the Pope and Council of Trent In all these Ecclesiastical Laws of Marriage the two Strumpets Theodora of Justinian Strumpets and Theodora of Pope Sergius and that impudent Quean Marozia and other Strumpets of the Popes had a great hand We are like therefore to have excellent Laws in the Bishops Courts and Justice for Marriage Fillation and Succession while the Laws of such Legislators continue All Laws prohibitory of Marriage or Meats came from the Devil Lastly There needed not to those who believe the Scripture this Recital of so many wicked persons to be Authors of this mention'd Ecclesiastical Laws for it is manifest by the Scripture it self that all Laws prohibitory of Marriage or Meats they being things not indifferent but necessary for the preservation of Humane Nature in the least Ceremony or Circumstance where they are not prohibited by the Law of God came from the Devil as appears 1 Tim. 4.1 2 3. Now the Spirit saith expresly That in the latter times some shall depart from the faith giving heed to seducing Spirits and Doctrines of Devils speaking lyes in Hypocrisie having their consciences seared with an hot Iron forbidding to marry and commanding to abstain from meats which God hath created to be received with thanksgiving I conclude therefore that all the fore-mentioned Ecclesiastical Laws prohibiting marriage without their Popish Ceremonies or Circumstances not appointed by God came from the Devil or many Devils The Final causes of the Ecclesiastical Laws concerning Marriage invented by Daemons and the Priests of Priapus and Venus were Lust Covetousness and Ambition of the Priests The second Reason against Ecclesiastical Laws is the wicked ends for which they were invented which were no other but only to satisfie the insatiable Lust Covetousness and Ambition of Priests As to which the Indian Histories mention That in the Kingdom of Molabar neither the King or People are allowed to have a Wife Luft Covetousness Ambition of Priests the only ends of Ecclesiastical Laws of Marriage unless sanctified for him by the first nights Lodging of the holy Bramin who is their Priest which is the reason that there the King's Sons succeed not to the Kingdom but their Sister's Sons for they say they know not the Father but they know the Mother Linschot Little better is done in Catholic Kingdoms often times though not openly yet secretly by those unchristian Bramins the Cardinal Confessors and it is common in Italy for Catholics to jeer one another that their Children are Fils de Prestre The Benyan Indians give their Priests the first fruits of their Wives and think the Marriage will not be blessed without it The Southern Americans in divers parts think it a great Devotion to offer their Daughters to be first defloured by the Priest The Algier Mahometans and the people of other parts of Africa think it a meritorious work to prostitute their Wives to their Morabates or holy Saints whom they esteem their Prophets And Leo Afer who was that Countrey-man tells a story of one of these holy Prophets who came to a Town and espying a handsom Woman being a person of very good quality and great esteem in the Town yet the Prophet took her being at a Bath and lay with her openly in the concourse of a great multitude of people who applauded the Fact as a great honour to the Lady and many of them ran to congratulate her Husband how happy he was to have so holy a Man partner with him in his Wife and when some of the better sort of people whose discretion was a degree above the common superstition of their Religion went and informed the Magistrates of the Town of the foul and shameful act was committed by a Vagabond Prophet and they sent their officers to apprehend him the people rose upon them and would have knockt out the Brains both of Officers and Magistrates had they not speedily desisted Carpenter reporteth from a Monk of Doway That not long ago it was a custom in Biscay a Province in Spain that every Man having married a Wife sent her the first night to the Priest of the Parish which it seems was the Fee due to the Priest for his labour the same day of marrying her in his Temple Carp 193. So it was at the door of the Tabernacle Hophni and Phinehas Sons of the Priest lay with the Women of the congregation 1 Sam. 2.22 To the Temple of Marriage the Popish Priests have of latter times added the Chappel of Ease of Auricular Confession Auricular Confession in a more commodious
constrained to obey them or to dye for hunger Of the Barbarous Law of Illegitimation or making Children incapable of Succession to the Goods of their own Parents And of the most excellent Law of the Emperour Anastasius decreeing all natural Children to be Legitimate and the repeal of the same caused by the Strumpet Theodora and the succeeding Popes and Bishops The power of Sale of Legitimations of natural Children was first in Pagan Rome usurped there by their Pagan Bishops and Priests and hath since in imitation of them been usurped by Christian Bishops in name but indeed Anti-Christian for the same filthy lucre amongst whom the Bishop of Rome and the Arch-Bishop of Canterbury have been the Primates But after the Emperours of Rome perceiving the vast Sums as it were ex lotio the Prerogative-Office and the Office of Faculties heaped together they swept them all into their own Exchequer and suffer'd no Legitimation to be granted unless they bought them of the Emperours who received great gain thereby till the Empire came into the hands of the vertuous Anastasius who seeing the great oppressions on his Subjects by taking from them that Birth-right which the Law of God and Nature gave not only to them but every Creature born into the World to be provided for by those who begot them and this to be continued only for the profit of his Exchequer he disdained such sordid and impious gain and made a most pious holy and honourable Decree That all natural Children should be Legitimate whereby all Intails to the Bodies of Women of the Husbands Estates were cut off and the mischiefs of bringing Fictitious Adulterous Supposititious and false Heirs into Families prevented But after Theodora who was a common Prostitute Theodora a common Prostitute the Author of the Ecclesiastical Laws of marriage came to be married to the Emp. Justinian and another Theodora as bad as she and her Daughter Marozia and other such Creatures came to be Strumpets to Pope Sergius and other Popes and had the chief hand in making all the Ecclesiastical Laws of Marriage by which the Bishops to this day judge Do any expect that these Whores of Babylon would ever bring any good Laws out of the Stews into the Church Certainly if any judicious and indifferent person will take the pains to take a full view of the Canons he will easily find there is not one which is not either a Gin to take their Prey or a Bait to cover it and that if all the Theodoras Marozias Laisses Thaisses Phrynes and Floras were to be alive again and sit in a Conclave of Women they nor all their Chaplain Priests could not invent better Laws for the advancement of their Trade or ways to destroy Religion Justice Vertue Modesty and Chastity then the Imperial Papal and Provincial Ganons are under the name of Ecclesiastical Laws And that notwithstanding Bishops amongst Protestants should be so long tolerated to judg arbitraties or according to them not only of Patrimonies and Matrimonies Filiations and Successions of the Subjects but of Kings and Kingdoms themselves is horrible But to return now to Theodora as Bodin Fol. 17. says and appears by divers Civil Laws compared after she had got the the Mastery of Justinian the Emperor her Husband a blockish and unlearned Prince when she had made all the Laws she could for the advantage of Women against their Husbands she got him to enact That it should be death for a man to lie with any Woman but his Wife but if the Wife lay with other Men besides her Husband she should only be infamous that is to say she should have no punishment at all for what honour can Infamy take from her who by Adultery hath already lost her honour and is totally defamed I forbear for brevity to recite other of her Laws but amongst them all there being not one good except for her Trade there cannot be a more wicked then the next For she having the command of her chous'd Husband caused him to repeal the excellent Law of the Emperor Anastasius which made as before mention'd all natural Children Legitimate that is to say where their Filiation was acknowledged by the Father by Adoption or other sufficient Declaration by him of the same whereby the old Ignoramus abrogated a better Law then ever he made or was in the whole heap raked together in his name by Theodora and Tribonian and they set up again the old Pontifical Intails of Husband's Lands to the Heirs of the Body of the Woman married before a Priest in a Temple That unlawful Marriages of Parents ought not to illegitimate the Children Child not to be punish'd for the Father's sin Desertion of Virgins after deflouring caused by Illegitimation First This is contrary to the Law of God to punish the sins of the Parents on the Children Secondly This incourages Fathers to deflour Virgins and when got with Child to desert both the Mother and the Child as a far cheaper way then by carrying her first to a Priest and Temple to draw a charge on himself of her and her Child as long as he lives this incourages likewise such Fathers to get Children by Incest and Adultery and Fornication and any other way which is not lawful rather then according to the lawful Ordinance of God because he can cast off all these Women and Children by only saying they are illegitimate and take an hundred more and serve them the like and they shall thereby be defrauded of Succession to his Goods and so much as Aliment from the same whereas if according to the Law of God and the excellent Law of Anastasius derived from the same all natural Children were to be adjudged Legitimate the Children would be provided for by being by Law made Successors to their Fathers Estate as far as the same will reach and Fathers would be discouraged to get Children unlawfully when they saw they could not thereby wickedly desert and make them illegitimate or evade the Obligation laid on them by the Law of God and Nature to provide for their own A wicked Father ought not to have a greater privilege then a good A Father not to take advantage of his own wrong Thirdly 'T is very unjust That a wicked Father should have greater privilege then a good and he who doth his Child injury then he who is his Benefactor for a Father who gets a Child unlawfully doth a double injury to the Child and rather ought to make double satisfaction to him then if he got him lawfully for he dishonors the Child and it is a rule in Law None shall take advantage of his own wrong if the Child is unlawfully begot who did the wrong but the Father who is therefore if proved to be punished for the wrong and not to take advantage of it against his injured Child to illegitimate and disinherit him nor much less ought the Law to do it for no other reason but because the Father
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
the colour and pretence of a former Contract made with another the which Contract divers times was but very slenderly proved and often but surmised by the malice of the party who desired to be dissolved from the Marriage which they liked not and to be coupled with another There was an Act made That all and every such Marriages as within the Church of England should be Contracted and Solemnized in the face of the Church and Consummate with Bodily knowledge or fruit of Children or Child being had between the parties so married should be by Authority of the said Parliament 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 Persons so married or both had made with any other Person or Persons before the time of Contracting of that Marriage which is Solemnized or Consummated or whereof such fruit is ensued or may ensue as by the same Act more plainly may appear Since the time of which Act. although the same was Godly meant the unruliness of Men hath ungodlily abused the same and divers inconveniences intolerable in manner to Christian Ears and Eyes followed thereupon Women and Men breaking their own promises and faiths made by the one unto the other so set upon sensuality and pleasure that if after the Contract of Matrimony they might have whom they more favoured and desired they could be contented by lightness of their nature to over-turn all that they had done afore and not afraid in manner even from the very Church-door and Marriage Feast the Man to take another Spouse and the Spouse to take another Husband more for Bodily lust and carnal knowledge then for surety of faith truth or having God in their good remembrance contemning many times also the Commandment of the Ecclesiastical Iudge forbidding the parties having made the Contract to attempt or do any thing in prejudice of the same Be it therefore Enacted by the King's Highness The Lords Spiritual Temporal and the Commons in this present Parliament assembled That as concerning pre-contracts the said former Statute shall from the first day of May next coming cease be repealed and of no force or effect and be reduced to the estate and order of the King 's Ecclesiastical Laws of this Realm which immediately before the making of the said Statute in this case were used in this Realm So that from the said first day of May when any cause or contract of Marriage is pretended to have beén made it shall be lawful to the King 's Ecclesiastical Iudge of that place to hear and examine the said Cause And having the said Contract sufficiently and lawfully proved before him to give sentence for Matrimony commanding Solemnization Co-habitation Consummation and Tractation as it becometh Man and Wife to have with inflicting all such pains upon the disobedients and disturbers thereof as in times past before the said Statute the King 's Ecclesiastical Iudges by the Kings Ecclesiastical Laws ought and might have done if the said Statute had never been made Any Clause Article or Sentence in the said Statute to the contrary in any wise notwithstanding Of the Law making private Marriage or carnal knowledge between persons not prohibited by the Law of God to marry Fornication Private Marriage or carnal knowledge is of two sorts the one without publick Witness the other without any Witness at all and both by the Popish Laws because if permitted they would spoil their gains are prohibited and called clandestine Marriages The publick Witnesses are the Priest or Magistrate private Witnesses are any other Marriage without Witness nor clandestine not appointed by Law The Law of England makes all private Marriage and carnal knowledge without publick Witness Fornication The Law of Scotland in some cases relieves though there be a defect and no publick Witness of the Marriage by the Priest as appears in the before cited Author Craig Feud 269. If there appear private Witnesses of Men or Instruments but in all cases likewise where there are neither publick or private Witnesses they leave it to be Fornication That which I here affirm against both is Marriage without Witness not Fornication 1. That carnal knowledge between parties not prohibited by the Law of God to marry is not Fornication nor any other Crime though in the highest secrecy and without any Testimony of Men or Instruments whatsoever 2. That privacy of Marriage being not prohibited nor publication commanded by God all parties ought to have liberty of Conscience to use the one or the other according as suits best with their occasions As to the first there are these reasons That private Marriage without Witness is not Fornication nor any other Crime 1. There is no Law of God prohibiting private Marriage without Witness Where there is therefore no Law there is no transgression Rom. 4.15 2. It is before shewen That for any human Law to prohibit Marriage or Meat where not prohibited by the Law of God the same came from the Devil 1 Tim. cap. 4. v. 1 2 3. And that therefore the Law of the Pope and Council of Trent which nulls all Marriages except made before a Priest in a Temple and two Witnesses came from the Devil and the Priests of Priapus and Venus for filthy lucre to the Priests 3. Isa 45.7 It is said I create evil And Isa 5.20 It is said Wo unto them that call good evil and evil good That put darkness for light and light for darkness Here is therefore a curse pronounced against those who if God created not marriage without Witnesses evil of their own heads call it evil and where God created it to be in darkness and natural modesty of their own heads will have it by Torch-light and the whole Parish of Witnesses 4. All Fornication is Polyandry and Confusio seminum whereby the Child cannot know the Father nor the Father the Child but here is no such thing it is impossible therefore to be Fornication Liberty Conscience to marry with or without Witnesses As to the second Point which I am to maintain That privacy of Marriage without Witnesses being not prohibited by the Law of God nor publication commanded by the same no human power ought to presume to prohibit what Marriage God hath not prohibited but all persons ought to be left liberty of Conscience to marry publickly or privately with or without Witnesses as it suits best with their conveniences and occasions as is the use and practice in all other civil Contracts which men do with or without Witnesses as they think best and were never accused of sin if they had no Witnesses whereon to bring their Action only that Party is justly charged with sin who wilfully breaks his Contracts because there are no Witnesses but God to prove it against him Against these Positions I shall first answer the Objections and then shew further Reasons to confirm the same
and such of them as have Propriety in Goods and Chattels Tenements and Haereditaments as Bees Ants and Squirrels leaving as they die their Hives and Honey-Hills and Corn-Holes and Nuts to their Descendents to be their Successors The Internal Readers and Witnesses in Man are the Divine faculties of the Soul Sense and Reason one doth Testifie the Fact the other the Law The Internal Judg of the Probation of both is the Conscience The Laws which they read and testifie are written in the Internal Tables of the Heart Christ expresseth the first concerning Marriage in the foresighted Text Matth. 19.5 For this cause shall a man leave Father and Mother and they two shall be one flesh Concerning Filiation the Law of natural affection which is writ in the heart of the Father is mention'd Psal 103.13 As the Father pittieth his Children so the Lord pittieth them that fear him And the Law of natural affection writ in the heart of the Mother is mention'd Isa 49.15 Can a Woman forget her sucking Child that she should not have compassion on the Son of her Womb As to the Law of Aliment written in the heart of the Father it is mention'd Luke 11.11 If a Son shall ask bread of any of you that is a Father will he give him a stone or if he ask a Fish will he give him a Serpent or if he shall ask an Egg will he offer him a Scorpion Lastly as to the Law of Succession written in the heart of the Father whereby all natural Sons succeeded either to the right of Primogeniture or Filial Portions the same runs through all the examples of Jews in Scripture and of Gentiles in Histories This great Law of Nature is acknowledged to be written in the Tables of the Heart by the Scripture it self Rom. 2.14 The Gentiles who have not the Law do by Nature the things contained in the Law these having not the Law are a Law unto themselves which shew the work of the Law written in their Hearts their Conscience also bearing witness and their thoughts mean while accusing or excusing one another So Rom. 1.26 Paul saith Women did sin against Nature Yet was there no Law of Moses nor any Law written by God or Man in Paper and Ink which particularly prohibited them but only that of Nature And that this Law of Nature can neither be changed nor abolished or dispensed with by any humane power is agreed by Philosophers Poets Divines Common and Civil Lawyers and all others except Popes who exalt themselves above God Christ and Nature and all that is called God Lex Naturae neo tolli neo abrogari potest saith Tul. de leg 205. Dionysius when his Mother being an old Woman desired of him he would get her to be married to a young Man He answer'd Kings might overthrow Civil Laws but could not the Laws of Nature Lex humana derivari debet à lege Dei sed eam perfectè persequi non Potest Aquin. Augustin In humanis Legibus nihil est justum nisi ab aeterna lege dirivatur Honesta turpia natura judicanda sunt Tul. de leg 169.6 Hobart's Reports 120. It is acknowledged that all customs and Acts of Parliament against the Laws of Nature are void for Lex naturae est lex legum the Law of Nature is the Law of God and positive Law if contrary or variant from it is the Law of Man Yelverion Justice said When a new Case comes for which there is no positive Law before we do as the Sophonisis and Civilians resort to the Law of Nature which is the reason and ground of all Laws and of that which is most beneficial for the Common-wealth make a Law quod non negatur 8 E. 4. fo 12. Claudius justly reprehends Tribonian That in compiling the Institutes of the Civil Law he omitted the Law of Nature de Ferraiis 552. But the flattering Courtier had he done so knew he must have prefixed another imperatoriam Majestatem and laid other manner of principles then placitum Principis to be the original of right he could not have then divided Title and Jurisdiction with his Master And Jupiter Proclaiming that Deus est imperator in Coelis Imperator est Deus in Terris 'T is well he claims only the Earth for now the Pope claims not only plenitudinem Terrae but Heaven too to sell to his Customers Yet the Civil Law acknowledges the Law of Nature immutable And this point of Marriage and Succession saith Lege duodecim tabularum benè humano generi prospectum est quae unam consonantiam tam in maribus quà m in foeminis Legitimis in eorum successionibus necnon in liberis observandam esse existimavit nullo discrimine in successionibus habito cum natura utrumque corpus ediderit ut maneat suis vicibus immortale alterum alterius auxilio egeat ut uno semoto alterum corrumpatur sed posteritas dum inimica utitur subtilitate non piam induxit differentiam c. Cod. lib. 6. tit 47. l. lege By the Law of the Twelve Tables it is well provided for Mankind that there should be the same rule of Successions for Males and Females and in Children and no difference to be made in their Successions seeing Nature hath brought forth the Bodies of both that they might continue in their course immortal and one need help of another and one taken away the other might be destroyed But later Ages while they use so much subtilty have made an impious difference c. Which is intended between Males and Females in Succession when Lands are Intailed to Heirs Males By which appears what opinion the Civil Law hath of Successions to such Intails to be impious because contrary to the Law of Nature The Civil Law likewise acknowledgeth that Jura Sanguinis nullo jure Civili dirimi possunt and again it follows the Law of Nature in Legitimation Si mulier quinquagenaria partum ediderit an debet hujusmodi soboles suo patri succedere haereditatem â—jus nancisci à Caesariano advocato interrogati sumus sancimus Licet mirabilis hujusmodi partus inveniatur raro contingat nihil tamen eorum quae probabiliter à natura nascuntur esse producta respui sed omne jus quod ex quacunque Lege liberis praestitum est hoc merum atque immutilatum hujusmodi filiis vel filiabus servari in omnibus succâ—ssionibus sive ex testamento sive ab intestata Et summatim non absimiles aliis fiant in quos similes natura efficit Cod. lib. 6. tit 47. si major A question is proposed us by the Advocate of Caesar if a Woman above fifty bring forth a Child whether such Issue shall be Successor to the Father in the whole inheritance And we Decree though it be an admirable Case and rarely happens yet we ought not to reject any thing known to be probably produced by Nature but all the right which by any Law is given to
Children the same ought to be wholly and intirely performed to such Sons and Daughters in all Successions whether to a Testament or an Intestate And in short that they ought not to be made unlike other Children in Successions whom Nature hath made like Hence it appears that the Civil Law wills the Succession of Children shall be according to the Law of Nature and not according to any Canon Law or Law made by the Priest Natura duce errare nullo modo potest Tul. 1. de leg Cum vero parentibus rediti deinde Magistris traditi sumus tum ita variis imbuimur erroribus ut vanitati veritas opinioni confirmatae natura ipsa cedit 3. Tusc Where nature is our Guide it is impossible to err but when we fall into the hands of Parents and are delivered to Shool-Masters we are then infected with so many Errors that all truth gives place to vanity and Nature it self yields to opinion accustomed To fight against Nature is like Giants to fight against God Cato major Of the Final Causes of Marriage by the Law of God and Nature The Final causes of Marriage which is the Ordinance of God and not of Man are not to fill Priests pockets with money or to satisfie their insatiable Covetousness and Ambition to set their Foot on the Necks of Emperours and Kings in their Legitimations and Successions and thereby to dispose of the Kingdoms of Princes and the Liberty Propriety and Goods of the Subjects at their Arbitrary will and pleasure But the Final causes of Marriage by the Law of God and Nature are three 1. Procreation of Children 2. That Man might have an Help-meet for him there being many necessities especially in time of sickness wherein Man cannot be without the help of a Woman 3. To make his life more pleasant and delightful Tristis sine conjuge lectus As for the first part which is the greatest and chiefest end of Marriage namely procreation of Children without which the World cannot be continued To be the shorter I shall only mention one Poet as follows Providei ille maximus mundi-Parens Cùm tam rapaces cerneret fati minas Vt damna semper sobole repararet nova Excedat agedum rebus humanis Venus Quae supplet ac restituit exhaustum genus Orbis jacebit squalido turpis situ Vacuum sine ullis classibus stabit mare Alesque Coelo deerit silvis fera Solis Aer pervius ventis erit Sen. in Hippol. Fates cruel Threats when the great Parent saw Against his Creatures by as great a Law He then Inacted all those whom it slew Sould by new Births perpetually renew Should Venus lease and should not still restore With fresh Supplies Natures exhausted store On squalid Earth no Beauty would remain No gallant Fleets would dance upon the Main No Deer in Woods no Birds would be in Skie Winds only through sad Air would sighing flie There could be neither King nor Parliament nor People nor Governours nor Governed neither could the Protestant Religion defend it self against Pope or Turk without Marriage for though it be Apocrypha it is truly said Esdras 4.15 Women have born the King and all the People that bear rule by Sea or Land The End of the First Book THE CONTENTS Of the Second Book BY what Judg Marriage Filiation Aliment and Succession ought not and ought to be Judged Of the Five Competitors to be Judges of Marriage Filiation Aliment and Succession 1. The Bishop 2 The Magistrate 3. The Souldier 4 The Parents 5. The King and Parliament 137 Exceptions against Bishops being Judges in reference to the Legislative ib. Except 1. They assume to be Judges Jure Divino without a Sign of Mission from God which overthrows the Legislative Power of the King and Parliament ib. Of the Sign of Mission required by the Grand Seignior from Sabatai Sevi a counterfeit Jewish Messiah 139 2. They have falsely translated the Scripture in all words relating to Marriage 142 They have falsely translated Ish Isha Zona Kadesh Philiegesh 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Husband Wife Harlot Concubine c. 142 No such as word as Concubine in the whole Original Scripture ib. They have falsely translated the Seventh Commandment Lo Tinaph to be Adultery 145 They have falsely translated 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to be Fornication ib. They have falsely translated the Tenth Commandment in the words Wife Man-Servant Maid-Servant 146 They have falsely translated Mamzer in the Old and Nothus in the New Testament Bastard Wherein are noted the Errors of Coke Skene and Grotius in following Episcopal and other Popish translations ib. Of the absurdity of Common and Ecclesiastical Lawyers who make the Child born without the Ceremonies of a Priest and Temple no Sib Kin or of Blood to the Father who begot or the Mother who bare him 154 155 Further Reasons shewn that they have falsely translated Mamzer in the Old and Nothus in the New Testament Bastard 156 No such word or thing as Bastard in the whole Original Scripture or amongst the Hebrews Greeks or Romans 3. They have corrupted the Press both as to Scripture and Acts of Parliament and interdict Protestants to Print against or answer Papists 162 A Counterfeit Act of Parliament Printed by Bishops against Protestants and the true supprest 163 Mischiefs which follow the Interdiction of the Press to Protestants 164 165 4. By pretence of giving the King the name of Supremacy they have taken the thing to themselves 167 5. By pretence of giving the King Supremacy by the Ceremonies of the Coronation they take it from him to themselves 169 David Anointed and Crowned by his Parliament and not by the Priest 173 6. They assume in all matters concerning Marriage Filiation Aliment and Succession to be above Appeal to the Kings Courts 175 Of the abominable Judgement pass'd by the Common Law Judges in Kennes Case Coke lib. 7.42 whereby they gave away the Supremacy of the King's Courts to Bishops and made them in all causes Matrimonial subject to no Appeal ib. Exceptions against Bishops being Judges in reference to the Judicial Power 180 1. They are prohibited by the example of Christ to Judg Marriage Filiation Aliment or Succession ib. 2. They are totally ignorant of the Fact and were never Educated in the Laws by which they pretend to Judg Marriage 181 3. They Judg by a Chancellour and not in Person 4. They have Plurality of Offices and more than they are able to serve yet will be Judges of Marriage besides ib. 5. They are ambidextrous and amphibious Judges 182 6. They Judg Marriage by pretended Canons and Laws made by Bishops without assent of Parliament ib. 183 7. They take to themselves Fines and Penalties of their own Judgments 184 8. They Licence Dispence and Pardon all Crimes within their pretended Jurisdiction for Money 9. They cannot be known whether Protestants or Papists if Bishops 185 10. They Judg by Fictions and not by Truth 11. They Judg
by Ceremonies and not by Circumstances Of the manifold mischiefs from the Judgment of Marriage by the Ceremonies of a Priest and a Temple 192 1. It compels to enter into an indissoluble Obligation before the Parties can know each other whether they are sit for Marriage or no. 193 2. It give the Bishop the Monopoly of all Women and their Goods 196 3. It gives him the Monopoly of Successions both in private Families and Kingdoms 197 4. It gives him power to Judg of Marriage Filiation and Succession by Fictions ib. 5. It causeth in the Rich Excess and Vanity of Apparel Tilting Turneaments Masking Gluttony Riot and Drunkenness 198 6. It undoeth the Poor in their Marriages 199 7. It causeth Immodesty in Brides wanton Songs and Ceremonies promiscuous Dancing and corruption of Youth 200 8. It exposeth to publick view what God hath commanded to be secret 201 9. It causeth Community of Women Community of Children Fornication Adultery Stews Brothels and the dissemination of most contegious and deadly Diseases amongst the people ib. 10. It hath caused Prostitution of Brides to Priests Lords Guests and others 205 11. It hath caused Consecration of Incest Whores Sodomites to attend the Service of the Priests and the Temples ib. 12. It hath caused the Consecration and Adoration of Priapus Baal Peor Venus Adonis Flora and the first defiling of the Virgin World with Whoredom and Idolatry 207 13. It first destroyed in the World the Omnipresential Worship of God 208 Prayers in Temples and Synagogues except amongst persons agreed prohibited by Christ and why A Poem on the Omnipresential Worship of God and therein of Marriages in Temples 223 15. It caused the bloody Sacrifices of Virgins Children and Indian Wives 229 16. It lays punishments on lawful Child births and destroys Millions of Infants 234 17. It caused the Parisian Massacre wherein were an Hundred Thousand Protestants slain 240 Why the Ottoman Emperors Marry not by a Priest or in a Temple and of the bloody Murders ensued of the Sons of Solyman the Magnificent by his breaking the Custom and his being drawn by Roxolana to Marry her by a Priest 245 12. Bishops proceed to Judgment in the unknown Language of Law Latine 254 13. They Judg for Fees where of the inconveniences following maintenance of Judges and Officers by Fees and not by Satary Exceptions against Bishops being Judges in reference to the Executive Power 1. They begin the Suit with Execution 263 2. They Pledg before Summons Summon before Copy Copy before Oath Punish before Contumacy Judg before Hearing and Arrest before Judgment all which preposteration begins with Execution 268 Of the Inconveniences ensue by Quorums or more Judges than one in a Court 276 A Satyr against the cruel Preposterations above mention'd both in Ecclesiastical and Temporal Courts Of Summons to answer before a Copy given of what is required to be answer'd 286 Of giving a Copy before an Oath of no Calumny 288 Of the multitude of Fictions and Falsities ensue in Chancery and Common Law by neglecting the Oath of no Calumny ib. ad 305 Of Judgment before Hearing Part of a Satyr translated out of Seneca p. 685. on the settish Emperor Claudius who used to Sentence before Hearing 305 An enumeration of divers Forms of Judicial Proceeding wherein People are Condemned before Hearing 1. By repelling men from the Truth and merit of the Cause and compelling them to make their allegations in Formalities and Fictions 306 A Dispute between two famous Judges Fitzherbert and Brook 14 H. 8.25 concerning Truth and Good Sentence and Formality and Fiction in Judicial Proceeding 306 2. By compelling to Original Writs at Common Law and not serving the Party with a Copy of the Declaration without them 312 Mischiefs of Original Writs 313 3. By compelling to the Writ of Subpoena in Chancery and not serving the Party with a Copy of the Bill without it Mischiefs of Writs of Subpoena 4 By the Capias ut lagatum and Excommunicato capiendo A Satyr on a Papist and a Protestant Imprison'd one on an Outlawry the other on an Excommunication against Imprisonment before Hearing and Judgment 329 A Digression concerning the danger of the Three Kingdoms Condemning one another without Hearing by reason of the Non-Union of their three Parliaments in one House Of the Fatal Dangers attending a Non-Union and the inestimable Benefits of the contrary 335 Of matters requisite to perfect an Union An Elegy on the ill effects of Excommunication of Protestants by Protestants causing a Disunion in the late unhappy Civil Wars 343 5. By Excommunication it self The Form of the Jewish Excommunication 345 The Form of the Greek Excommunication against Thieves 347 The Form of the Popes Excommunication against Queen Elizabeth All Forms of Excommunication wicked and Anti-Christian 348 Of the strange Cheats and Superstition in Excommunications 352 Of the damnable mischiefs arise to Christian Princes and States by tollerating Popes or Prelates to Excommunicate without a Sign of Mission from God 362 All Excommunication Curses and Deliveries to Satan by Bishops or Priests without a Sign of Mission from God if Malefice follow ought to be punish'd as Witchcraft if not as a Cheat. 381 A Satyr in defiance of all Excommunication without a Sign of Mission from God 388 An Epode on Protestants Excommunicated by Papists Considerations concerning a True and False Test between Papist and Protestant 6. By Bishops condemning Protestants of Heresie by the Four first General Councils The other Exceptions against Judicial Forms and what was intended concerning the other Competitor-Judges I am enforced to break off abruptly by Disturbances at the Press Lib. II. Of the Judg of Marriage Filiation Aliment and Succession CHAP. I. Of the Five Competitors to be Judges of Marriage Filiation Aliment and Succession 1. The Bishop 2. The Magistrate 3. The Soldiers 4. The Parents 5. The King and Parliament HAving before shewn unanswerable exceptions against the Ecclesiastical Laws by which Bishops pretend to judg I shall now propose exceptions Declinatory of the Authority and Jurisdiction usurped by them and likewise of their Personal disabilities and incapacities to be Judges of the matters in question all which are 1. In reference to the Legislative 2. The Judicial 3. The Executive or Military Power all usurped or abused by them Exceptions against Bishops being Judges in reference to the Legislative They assume to be Judges Jure Divino without a Sign of Mission from God which overthrows the Legislative Power of King and Parliament For they assume to be Angels and Messengers of God Embassadors of Christ and Successors by his last Will and Testament of the whole Power of Judgment given to the Son yet do they shew no sign of Mission from God no letters of Credence from Christ nor any letters of Probat that they were nominated either Executors or Legatees in any such Testament or in the Testament of any Executor or Apostle of Christ or in the Testament of any Executor of such Executors
are totally Ignorant except only to take account of the Money and Gaines 3. They Judg by a Chancellour and Commissaries and not in Person The Causes are First Ignorance whereof they are before proved Guilty The Second Pride that they may be equal to Kings who pream Judg or Legislative Power can delegate Judgment A Bishop must therefore be a Judg Supream or Delegate if he Arrogate to be Supream he ought not to be suffer'd if a Delegate Delegatus non potest Delegare The Third is Sloth to take the Gains and not the Pains of doing Justice The Fourth is Covetousnes that they may have Plurality of Offices and let them to Farm to Deputies all which are most sad Ingredients to compound a Judg of Marriage Filiation and Succession and it is clean contrary to the known Laws for any Judg Delegate to Act by Deputy and not in Person for the Office of a Judg is an Office of Trust and cannot be granted over and neither ought nor can be executed by any Assign Deputy Commissaries or Chancellour but ought to be served in Person besides they Excommunicate by Lay-deputies contrary to their own Pretences that the Power of the Keys belongs only to Persons in pretended Holy Orders 4. They have Pluralities of Offices and more than they are able to serve yet will be Judges besides One good thing is remembred of Becket Arch-Bishop of Canterbury who though he was a Traitor to King Henry the Second yet being first by him made Chancellor of England and after made Arch-Bishop of Canterbury before he would take upon him the Office of Arch-Bishop he of his own accord first surrendred his Office of Chancellor not thinking it fit for one man to have two such great Offices at once but they now make St. Peters Net of so small a Mash that great or small all is Fish that comes to it And first they begin with the Coronation Office already mention'd then the Offices of Legislation in Parliaments of Legislation in Assemblies of Legislation in Synods of Chancellors of State of Negotiators of Intelligencers of Soldiers of Treasurers of Almoners of Temporal Barons of Masters of the Ceremonies of Worship of Visitors of Inquisitors of Confessors of Penancers of Excommunicators of Pardoners of Absolvers of Dispencers of Faculties of Interdictors of Marriages of Liâ—ncers of Marriage of Interdictors of the Press of Licencers of the Press of makers of Ministers of Licencers of Preachers Curates Lecturers Schoolmasters Physicians of Consecrators of Churches of Consecrators of Church-yards of Interdictors of Burial of Interdictors to cast out the Devil by Fasting and Prayers of Licencers to cast out the Devil and many others out of each of which they reap gains yet are not able to serve the least part of them but let them to Farm to their Spunges whom they squeeze into their own See whereas they cannot so much as pretend any Mission from Christ for more than One Office which is of Teaching in Season and out of Season and would they follow that as they ought the same would be sufficient to take up the whole man and leave them little leisure of being Judges of Marriage Filiation and Succession or to execute any other Temporal Office 5. They are Ambidexter and Amphibious Judges in Spirituals and Temporals They cannot deny that Marriage since it was purified by the Protestant Religion from the defilement of being a Romish Sacrament and Filiation Aliment and Succession incident to the same became meer Temporal matters and nothing can be more Temporal in it self or wherein the higest Temporal Rights of Princes and People of Liberty of Person and Propriety of Goods Freehold and Inheritance are more concerned than in them and it being likewise confess'd both by Common and Ecclesiastical Lawyers That the meer Spiritual Judge ought not to judg of Temporal matters neither was there any such Jurisdiction ever pretended to Marriage by the Pope himself but as to a Spiritual Sacrament and in Ordine ad Spiritualia he by it deposed Kings and disposed of the Succession of Kingdoms at his Will and Pleasure Unless therefore a Bishop will affirm That Marriage continues still a Romish Sacrament or that he may like the Pope judg of any Temporal matters in Ordine ad Spiritualia he hath no pretence or colour of Right to be a Judg of Marriage Filiation Aliment or Succession but let the Right be what it will de Facto he hath got a Spiritual Lord and a Temporal Baron into one Doublet and produced from thence a monstrous Ambidextrous Jurisdiction with the Spiritual Sword in one hand and the Temporal in the other neither Divine nor Humane nor Fish nor Flesh but like the Amphibious Crocodile partly with Tears partly with Terror Raving both by Land and Water and Destroying in both the Elements of Spirituals and Temporals 6. They Judg Marriage by pretended Canons and Laws made by Bishops and Synods which are no Laws but are utterly void they not having had in their making the Assent of the Parliament No English-man can deny That to make a Law are required the joint Assent both of King and Parliament and if either is wanting there can be no Law decreed and enacted by any other Convention Ecclesiastical or Lay whether Council or Synod And this is so great a Birth-right of the People That if any House of Commons who are Elected by the People and intrusted by them to be their Delegates to treat with his Majesty or his Successors to enact Laws of Marriage and other Laws concerning the same should consent and agree That an Act of Parliament should be made that the Bishops and a Synod should instead of the House of Commons have full Power and Authority on their Convention by the Kings Writ to treat with the King and by his Royal Assent to make and enact Canons and Laws concerning Marriage Filiation Succession Religion Liberty and Propriety of the People and such Canons and Laws so made should have the force of Acts of Parliaments and the Commons should declare That to ease themselves of the trouble of so often being summon'd from their remote Habitations in the Country and so long Journies to the City and their not being verst in the difficulties of Legislation or any other probable matter of Excuse that they desired to refer the whole care of the Publick Affairs to Bishops and Synods who are Learned men and they should from time to time as often as they saw necessary on Summons make wholesom Canons and Laws for the People and that the House of Commons desired to be excused from the burden of sitting any more and accordingly such an Act should be passed and thereon a Synod be Summon'd and they should make a Book of Canons concerning Marriage Filiation and Succession by the Royal Consent and these should be proclaimed to be Laws and to have the force of Acts of Parliament yet would such Book of Canons be utterly void and of none effect
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
them durst adventure seeing Bajezet was of a furious Nature and in his Anger dangerous to be spoken with to mediate in their behalf no not Alis Bassa Charadin Bassa's Son whom of all men he favour'd most There was at that time in the Court an Aethiopian Jester who under some Covert pleasant Jest would often times bolt out to the King in his greatest heat what his gravest Councellors durst not speak to him in secret This Jester Alis Bassa requested to devise some means to entreat the angry King in behalf of these Judges promising to give him what he would desire if he could appease the Kings displeasure The Aethiopian without fear undertook the matter and presently put on his Head a rich Hat all wrought over with Gold and accoutred in all other his Cloths suitably presented himself before the King with a great counterfeit Gravity whereat Bajazet marveling asked him the cause why he was so Gay I have a Request unto your Majesty said he and wish to find favour in your sight Bajazet more desirous than before to know the matter asked what his Request was If it stand with your pleasure said the Aethiopian I would fain go as your Ambassador to the Empeperor of Constantinople in hope whereof I have put my self in this readiness To what purpose wouldst thou go said Bajazet To crave of the Emperor some Forty or Fifty of his old grave Monks and Friers to bring with me hither to the Court. And what should they do here said Bajazet I would have them placed said the Jester in the rooms of the old doteing Judges whom you intend as I hear to put to death Why said Bajazet I can place others of my own People who are better in their rooms True said the Aethiopian for Gravity of Look and Countenance and so would the old Monks and Friers serve as well but not so learned in the Laws and Customs of your Kingdom as are those in your displeasure If they are Learned why do they then contrary to their Learning pervert Justice and take Bribes There is a good reason for that too said the Jester What reason said the King That can he that there standeth by tell better than I said the Jester pointing to Alis Bassa who forthwith commanded by Bajazet to give the reason with great Reverence first done shewed that those Judges so in displeasure were not conveniently provided for and were therefore enforced many times for their necessary maintenance to take Rewards where they could get them to the staying of the due course of Justice which Bajazet understanding to be true commanded Alis Bassa to appoint them convenient stipends for their maintenance and forthwith granted their Pardon Whereupon the Bassa set down Order That of every matter in Suit exceeding One Thousand Aspers the Judges should have Twenty Aspers which Fees they yet take to this day Whence may be Observed 1. That to place Judges in Courts to undergo the incessant labours of hearing multitudes of Causes and not to allow them honourable maintenance is the ready way to make men of ordinary Principles Freebooters and to take the Prey for themselves So the meanness of the Salary in Russia being but an Hundred Marks per Annum makes the Judges extream Extortious on the People 2. That those who buy either Judicial or Ministerial places in Judicatories must sell again and the sale of either is contrary to the Law of God and of infinite Damage to the Publick turning the weights of Justice to the false weights of Merchandize as says the Poet Ergo Judicium nihil est nisi publica Merces Quid faciunt leges ubi sola Pecunia Regnat 3. That the Basha when he was appointed to provide the Judges maintenance by stipend providing the same by Fees made them worse then before and gave them a pretence to take Bribes of the People under the name of Fees and there are none more corrupt Judges for Bribery than the Turks to this day and well they may if they take Fees Neither Judg nor Minister to take Fees but Salary It was the Ancient Law of England that none having any Office concerning the Administration of Justice should take any Fee or Reward of any Subject for the doing of his Office Coke 2. part 176. and by the Statute Westm 1. cap. 25. neither Judicial nor Ministerial Officer as Sheriff Escheator Coroner Bailiff Gaoler Clerk of the Market Aulnager nor other inferior Minister or Officer of the King whose Offices do any way concern the Administration or Execution of Justice or the common good of the Subject or the Kings Service but shall be paid of what they receive from the King on pain the Offender against this Act shall pay double Damages of the Plaintiff and shall be otherwise punish'd at the Will of the King Marrying for Fees contrary to the Laws of God and of the Land By which appears that the Episcopal Judging of Marriage Filiation Aliment and Succession for Fees and the granting of Licenses of Marriage by Bishops and taking of Fees by a Priest for Banns or Marriage of any Persons in a Temple or elsewhere is wicked abominable and contrary to the Laws of God and Fundamental Laws of the Land and they ought to be punish'd for doing the same and had not Bishops corrupted the true Doctrine of Gods Ordinance of Marriage to obtain Fees and other covetous and ambitious Ends Men had at this day Married according to the Moral Law of God and not the Ceremonial Laws of Priapus and Venus The Inconveniences which ensue Judges and Ministers taking Fees are 1. As Coke saith 2 part 210. When neither Judges or Ministers had any Fees then had they no colour to exact any thing of the Subject who knew they ought to take nothing at all of them they being maintained by Salary from the King but when some Acts of Parliament changing the Rules of the Common Law gave to the Ministers of the King Fees in some particular Cases to be taken of the Subject whereas before all their Office was done without taking now no Office at all is done without taking and a gap being once open'd there was after no bounds to the breach so it causeth Oppression 2. It causeth corruption of Justice for if a Judg take Fees it is from the Plaintiff and Defendant and he will sell Justice to him who gives him the greatest but if he take a Salary he takes it from the Publick and will be for the Publick good and not partial to the Parties 3. The Publick by giving the Salary and receiving the Fees increases the Publick Treasury for the vast Income of Fees far exceeding the Merits of the Judges and Officers it is just the overplus should be applied to discharge Publick Burdens and not to fill private Pockets and what was unequally shared amongst Officers ignorant and idle by way of Fees The English in Scotland turn'd all the Fees of Courts into
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
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
a Papist is permitted to be Indicted for Recusancy or Absence from Church a Protestant may on the same Penal Law be Indicted on the same if a Papist is punish'd for Non-Conformity to any other Ceremony a Protestant who as much dissents from that Ceremony as a Papist may be likewise punish'd by the same and a Legem quam tuleras feras be minded against him and the Protestant be brought in a worse Condition than the Papist whencesoever any Bishop Bancroft or Gundamore gets a Pardon of all Penal Laws against the Papist and their Execution sharpen'd against the Dissentient Protestant so if an Excommunicato Capiendo and Confiscation thereon be granted to the Power of the Bishop against the Papist or any Heretick we see by experience it shall not be emitted against the Papist but only against the Non-Conformist Protestant The Compulsion of Papists to Confession of Faith or any External Forms or Ceremonies of Worship by Penalties or any illegal Proceedings which destroy Liberty and Propriety in them cannot be done without bringing the Liberty and Propriety of the Protestant into the same danger as the Penalties by Statutes laid to compell Confession of Faith and a Form of Worship and the illegal proceeding on them or without them of beginning Suits with Original Writs Law Execution Summons before Oblatio Libelli Oblatio Libelli before Oath of Calumny priety of Protestants Exaction of Pledges Bail Mainprize Distresses Condemning before Hearing Judgment before Probation Arrest before Judgment Outlawries and Excommunicato Capiendo's are Penalties and Abuses in the Forms of Judicial Proceeding destructive and impossible to consist with Liberty and Propriety in any Kingdom or State now if any of these are permitted to Invade the Liberty and Propriety of the Papist Tua res agitur as well as his it will be impossible for the Liberty and Propriety of the Protestant to escape such an Invasion suffer'd to break in unless therefore all the said Abuses are utterly Abolish'd as well against the Papist as the Protestant it is never to be hoped that Liberty or Propriety shall be enjoyed by either Compulsion to confession of Faith or Form of Worship causeth Civil Wars It is impossible to prevent Seditions and Civil Wars where there is practised in any Kingdom or State Compulsion of the Natives who are but numerous enough to Raise an Army to any Confession of Faith or Form of Worship by Penalties this Cruelty being practised by Antiochus Epiphanes against the Jews Raised a great Rebellion and Wars against him in that Nation as long as he lived which Rebellion continued after his Death against Antiochus Eupator his Son but the Son advising with wiser Council than his Father had done offer'd the Jews on a Capitulation the Free Liberty of enjoying their own Religion which granted they immediately agreed and concluded a Peace with the King Lysias his General after the Peace concluded Councell'd Antiochus to put Menelaus the High-Priest to Death as the Evil Councellour who had been the occasion of that Rebellion and War by giving such wicked Councel to his Father to compell the Jews to forsake their Rellgion and the King understanding it sent Menelaus unto Beraea a City in Syria and Commanded him there to be put to Death he having before his being sent thither been High-Priest for the space of Ten Years and made Alcimus High-Priest in his place where appears that to Councel a King to compell a Nation to a Form of Worship contrary to their Conscience tends only to the Advancement of Episcopal and not of Regal Interest and the Kings Person is exposed to the hazard of the Battel while the Bishop Luxuriates in the delights of his Pallace Episcopal Councels unsortunate to Kings and why and this Evil Episcopal Councel to compell the People to his Confession of Faith and Forms of Worship hath not only been unfortunate to antiochus but to all Kings and Emperors who have trusted on the Staff of so bruised a Reed as a Crosyer on which when they have leaned a while in the end it will go into their hands and pierce them for the Episcopal advice of Compulsion to Forms and Ceremonies makes a Rich Bishop but a Poor King and People and the Interest Regal and Episcopal and the Law of the Crown and of the Canon being Diametrically opposite one to another it is no wonder if the Councils of the later level always at its own Supremacy and the Subjection of the former such was the Episcopal Council of the Bishop of Rome and Spanish Bishops to Philip the Second of Spain for they Councell'd him to break his Oath to his Subjects of the Netherlands whereby he had bound himself not to increase their ancient number of Bishops being but Three to which he notwithstanding contrary to his Oath added Fourteen which no man doubts was highly for the Interest of the new Bishops and Bishop of Rome but every man may see was clean contrary and destructive to the King's Interest so they councell'd him to bring in the Inquisition amongst them to cut off the Heads of the Protestant Nobles to Massacre the Protestant People all tending to the Advance of the Romish Episcopal Tyranny but Destructive to Regal Government and what was the Success of these Episcopal Councels and Benedictions of Perjury and shedding of Blood the whole Power of Spain with all their European and American Dominions were thereby disabled to reduce so small a Spot as the United parts of the Netherlands and with infinite Losses and Dishonour beaten thence and lost the Government ever since Such Councels gave the Romish and German Bishops to the Emperors both in the time of Luther and the Wars then as likewise in those later Wars both in Germany and Hungary to compell with Fire and Sword the Protestants to the Episcopal Forms and Ceremonies highly no doubt to the Episcopal Interest but Destructive to the Imperial and what was the Success God hath been pleased to make the Protestants stronger and stronger and the Emperors weaker and weaker ever since Charles the Fifth in whose time those Wars began and both he and his Successors have been still compell'd before the Wars ended to which they were set on by the Bishops Dishonourably and with Loss to condiscend to a Free Exercise of Faith and Religion which is more than a Non-Compulsion to Confelsion of Faith and Form of Worship which they might have Honourably and before any Damage and Devastation to them or their Countrey have Granted and would have been at first Honourably accepted So in the Peace concluded between the Emperor and his Discontented Subjects in the Higher Hungary Anno Dom. 1606. The first Article agreed on was That from theneforth it should be lawful for every man through the Kingdom of Hungary to have the free Exercise of his Religion and to believe what be would and had not the Emperor been misguided by Episcopal Councils to the contrary he might with more Honour
of Wine and prayes over it and offers it to the married Couple to tast but the Bridegroom dashes it against the Wall in memory of the destruction of Jerusalem so the Bridegroom in sign of sorrow puts on a black Cloak and the Bride a black Hood Mr. Addison tells of the Barbary Jews That they are married at the Bride's Chamber only by putting a Ring on the Woman's finger and pronunciation of these words by the Rabbi Thou art Married or Sanctified unto this Man with this Ring according to the Law And when married they use a foolish Ceremony if the Bride is a Virgin they give her Wine in a narrow-mouth'd Cup if a Widow in a broad mouth'd Cup and after the Bridegroom casts a raw Egg at the Bride c. And how the fopperies of such Ceremonies come by God's Law to make a marriage or no marriage or legitimate or illegitimate the Child no rational Man ever understood Plurality of Wives As to the determination of number of Wives by Nature it seems to be according to the number she her self gives As in the East and Southern climes the Feminine number naturall exceeding the Males many fold And in times of great destructions by Wars such as are foretold Isa 3.25 Thy men shall fall by the sword and thy mighty in War and her Gates shall lament and mourn and being desolate shall sit upon the ground And in that day seven Women shall take hold on one Man In the Kingdom of Benym amongst the Negro's the King hath five or six hundred Wives and his Subjects keep 20 30 40 50. 60. according to their ability and the poorest sort five or six and some a Dozen Hierotinus an Arabian King had six hundred Children by Concubines so it seems excessive multiplication may be one reason against Plurality It was a Law amongst the Garamants That when any Woman married had three Children she should be separated from her Husband because a multitude of Children cause Men to have covetous hearts and if any Woman bring forth more Children they shall be slain before their Eyes Aristotle in his Politiques thinks it profitable That Plebeians should not have too many Children and therefore allows Divorce lest the Wives should bear too many Connubia mille non illis generis nexus non pignora curae sed numero languet pietas Claud. de Bell. Gild. Amongst the Medes antiently Polygamy was so far from being esteemed a fault that it was a punishment for a common Person not to have seven Wives and for Noble Women to have less then five Husbands Heylin 814. Of the custom of the Jews to keep one barren Wife and another to breed One Barren and another Breeding Wife Selden de Jur. natur lib. 5. pag. 586. translates out of a Jewish Rabbi these words Sub diluvium hominum mos erat ut pro libitu binas sibi duceret quisque uxores alteram prolis gratia alteram in Concubitum ea autem quae prolis gratia haberetur velut vidua quamdiu superstes esset degebat sed ea quae in Concubitum adhiberetur sterilitatis exhaurire solebat Poculum ut sterilis redderetur atque juxta virum accumbere solita velut meretricio ornabatur habitu And in another place ornata etiam velut nova nupta lautiores comedebat dapes acerbius autem durius tractabatur socia lugebat vidua To which alludes Job 24.2 as 't is in the Hebrew he fed the Barren which brings not forth but did no good to the Widow Moses saith Cursed be he that lieth with his Sister Incest the Daughter of his Father or the Daughter of his Mother Deut. 27.22 Yet Abraham allowed it in his time and married Sarah And Amram took him Jochebed his Father's Sister to Wife and she bare him Aaron and Moses and the years of the life of Amram were an hundred and thirty and seven years Exod. 6.20 Aretas King of Arabia Petraea and Herod fell at strife the one with the other for this cause which ensueth Herod the Tetrarch had married Aretas his Daughter with whom he lived married a long time afterwards taking his Journey towards Rome he lodged with Herod his half Brother by the Father's side for Herod was the Son of Simon 's Daughter which Simon was the High Priest and there being surprized with the love of Herodias his Brother's Wife who was Daughter to Aristobulus their Brother and Sister to the great Agrippa he was so bold as to offer her some speech of marriage which when she had accepted Accords were made between them That he should banish his Wife Aretas far from him who complaining to her Father the Arabian King of the injury done her by her Husband Herod the same raised War between him and Herod Josep lib. 18. cap. 7. de Antiq. And Aretas overt rowing Herod's Army divers Jews were of opinion That this Judgment fell upon him because he had cut off John's head by the instigation of Herodias ibid. But as for this opinion divers believe that it hath been foisted into Josephus vid. Blâ—ndell Hist Sybill But as to the Point in question of Incest 't is very clear That John justly reproved Herod for marrying his Brother's Wife whether there was a Judgment followed on it or not But it cannot be infer'd that the cause why he reproved it or why the War followed on him was Incest but the cause thereof is more likely to be because he so wrongfully Divorced his first lawful Wife and likewise caused his Brother's Wife to be Divorced from him while his Brother was alive and Tetrarch of Galilee that he might have her from him So here was a double Divorce matter enough to reprove without minding any Incest which agreed likewise with the Doctrine of Christ and 't is manifest that was the only cause of the War and not any pretence of Incest for Aretas would have raised the War alike if the wrong had been done his Daughter by a strange Woman as if it had been by a Kinswoman Therefore no Argument can be brought that St. John's opinion was this was Incest nor that any Judgment happen'd for Incest but rather for unlawful Divorces so the marrying the Brother's Wife to raise up Seed to the Brother seems a custom tolerated for hardness of their hearts and not to be imitated by Christians Tryal of Virginity more wicked then the Bill of Divorce for this was after the Husband had lain with her Tryal of Virginity and perhaps likewise he might have got her with child Deut. 22.13 It is said If any man take a Wife and go in unto her and hate her and give occasion of speech against her and say I took this Woman and when I came to her I found her not a Maid Then shall the Father of the Damsel and her Mother take and bring forth the Tokens of the Damsel's Virginity unto the Elders of the City in the Gate and the Damsel's Father shall say
marriage yet could not they avoid being spotted by slanderous Tongues to be like the Heathen Gods lovers of Women whereas fame it self dared not belye these Heroick Ladies who defended their Honour with their Blood But to draw to an end of this Section There appear amongst the nations many good many indifferent and many most wicked Laws and Customs concerning Marriage the height of the Examples and the Authority both in good and bad being only humane The same can be neither obligatory nor satisfactory to the Conscience neither ought marriage to be judged by them Divorce by mutual assent It was by the Twelve Tables allowed That by Mutual consent the parties might Divorce themselves one from another Quia unumquodque dissolvitur eodem modo quo conflâ—tum est as may be collected from Cicero Philip. 2 l. pern ad leg Jul. de Adult li. 2. 7. de divorcio ex Apul. Ambros Epist 65. Notwithstanding which there was no Divorce followed in Rome for the space of 520 years There have been examples of the practice of this amongst Christians and Christ's words prohibiting putting away which implies force seems not to include a free or voluntary separation Of examples of this amongst Christians an express form appears in Marculfus his Formula lib. 2. cap. 30. Dum inter illum illam non charitas regnat sed discordia placuit c Seeing between him and her the Charity according to God doth not reign but Discord so that they cannot live peacably together it is agreed by the consent of both that they separate from one another and accordingly they have done as others Leg. Rom. cap. 19. and Novel Instit 117. These Canons have been made to change and likewise other Imperial Laws Divorce free for Women a well as Men. Of Women departing from their Husbands 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is the word for it on the Woman's part Sen. de Benef. l. 3. c. 16. Numquid jam ulla repudio erubescit And Nobiles foeminae non consulum numeroâ—sed maritorum annos suos computant They departed and married again every year Apud Romanos Graecos mulier quam vir alteri potest dicere ut res suas sibi habeat quin nomina rei illius propria jure Attico prodita erant ut si vir discederet ab uxore hoc diceretur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 si mulier à viro 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Jos Scà liger Amongst the Romans and Greeks both the Woman and the Man might Divorce one another And by the Athenian Law they had proper Terms for both as if the Man left his Wife this was called a Dismission Dismission and Desertion if the Woman left her Husband this was called a Desertion So by the case put by Christ of a Woman it appears then that Women were Divorced as well as Men. The East Indians if they are but Jealous of their Wives will kill them and bring three or four witnesses to Swear That strange Men entred into their Houses by night or at unaccustomed times who had their pleasure of their Wives or in another sort as they will devise it whereby the Husband is streight discharged of the Crime of killing his Wife by the Laws both of Portugal and Spain and there are every year many Women without number dispatched by their Husbands and none think it strange nor make wonder at it because of the Custom and the Women are never the more frighted from their Adulteries but will say They can die no better death then by such a Law Linschot And may presently marry another Wife The Wives likewise frequently poison their Husbands which as some say was the original of their custom not to survive their dead Husbands but to burn them And the causes of Jealâ—uâ—e can by neither be published to the Magistrate with safety or hâ—nour either of Wife or Husband Were it not therefore far better for the Innocent party or both by assent to separate themselves privately and marry again then so live in danger of their lives one of another and more agreeable to the Law of God and Nature and the ends of marriage then for them if the Wife offends the Husband to have power to kill her while alive or if not offend to kill her by burning with him after dead or the Woman be tempted to prevent both by poisoning her Husband were it not better to be put away privately as Joseph did his Wife then the fault publish'd and Divorces would not be so frequent if left free to the parties for who would marry again a Man or Woman who had Divorced themselves from their first marriage without cause Augustus Caesar following the vicious policy of those times to strengthen himself by marriage of Women repudiates his Wife Scribonia the same day she was deliver'd of Julia and married Livia being great with Child by Tiberius Nero her Husband still living who was deliver'd of Drusus three Months after Dio. Tiberius by assent of Augustus repudiateth the Daughter of Agrippa being then with Child and marrieth Julia the Daughter of Augustus Dioclesian the Emperour married six Wives in a short space and repudiated them all great with Child Oros And having associated to him because of many Travels in the Empire Maximianus they both meet at Milan to create new Caesars to whom they may commit their Forces where they chose Constantius Chlorus and make him Governour of Britain and Galerius whom they make Caesar likewise to defend Eastern Europe These new Caesars they compel to repudiate their former Wives and Galerius married Valeria Daughter to Dioclesian And Constantius repudiated his Wife Helena by whom he had Costantine after call'd the Great and married Theodora Daughter-in-law to Maximian by whom he had after six Children Dioclesian assumeth Divine Honour and he and Maximian triumph yet they after resign the Empire and retire themselves to Galerius and Constantius after Constantius createth his Son Constantine Caesar and dyeth Against him was set up Maxentius Son to Maximian and Maximian giveth his Daughter Fausta to Constantine Herod Antipas repudiateth his Wife Areta who was Daughter to the King of Arabia and married Herodias Wife to his Brother Philip and Daughter to his Brother Aristobulus Joseph Anno Christi 1028. Constantine the Emperor being sick the States put Romanus Argyrus to his choice either to repudiate his Wife and marry the Emperor's Daughter or to lose his Eyes his Wife to save him from danger entereth into a Nunnery Romanus Argyrus is made Emperor and marrieth Zoe the Emperor's Daughter and banisheth Theodora her Sister Zon. Zoe falleth in love with Michael Brother to one of the cheif Eunuchs they strangle Romanus in a Bath he marrieth Zoe and was much troubled with the Dropsie and Falling-sickness Michael neglecteth the Emperess and refraineth her Bed shaveth her and banisheth her The people inforce him to recal her and put out his Eyes Cedr Zoe marrieth Constantius Monomachus who keepeth a Concubine
Infallible or any Book which hath more Seditious and Rebellious principles of Disloyalty This I only say now but when I have what I now want time and opportunity I can and will 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 make it good how dangerous and when believed and practised how pernitious to Kings and Princes the principles of that Law are I hope all Bishops will hereafter be of the same mind and not own the Canon Law to be the Rule of Marriages and Legitimations or Successions of Protestant Kings and Princes or their Subjects or for their Pardons and Excommunications or fit to be any longer the Ecclesiastical Law for the Government in any thing of Three Protestant Kingdoms As to the Feudal Law I shall defer it till I come to speak of the wicked obligations of some Tenures Feudal Law to prostitute the Virginities of their Daughters to the Lords of the Land It is enough for to shew the slavery of Feudal Laws if we but remember the late Wardships of Tenures wherein the marriages of Men and Women were bought and sold as if Beasts in the Market and the unjust Laws yet remaining in customary Estates prohibiting Widows to marry and marrying young Women to old decrepit Men not fit for marriage to get a Widow's Estate whereby they are left exposed to infinite Temptations The wicked custom of Marchâ—ta Mulieris belongs to the Feudal Law Marchâ—ta mulieris dicitur Virginalis pudicitiae prima violatio delibatio quae ab Eveno Rege sibi capitalibus dominis fuit impie permissa de omnibus novis nuptis prima nuptiarum nocte sed pie à Malcolmo 3 sublata fuit in capite sequente certo vaccarum numero quasi pretio redimitur Sken Reg. Ma. lib. cap. 31. 1. It is to wit that conform to the Law of Scotland the Marchet of ane Woman noble or Servant or Hireling is ane Zoung Kow or three shillings And the right duty to the Sergeant three pennys 2. And she be Dochter of an Frie-man and not of the Lord of the Village her Marchet shall be one Kow or six shillings and for the Sergeants duty sax pennys 3. Item The Marchet of ane Thane or Ochiern twa Rye or Twelve shillings and the duty to the Sergeant Twelve pennys 4. Item The Marchet of the Daughter of an Earl pertains to the Queen and is twelve Rye The Spaniards in the West Indies setting a Tribute to the King and the inferior Lords to be paid yearly by every married person To encrease these yearly Tributes from married persons they every year survey by List the married persons of every Town and cause their Children Sons and Daughters to be brought before them to see if they be fit to be married and if of growth fit they threaten the Parents for not marrying them and raise his Tribute by way of Fine till he marry them And the set time they appoint for marriage to the Indians is 14 to the Man and 13 to the Woman yea some they compel to marry scarce 12 or 13 years of Age if they appear of more forward strength yea it is a shame to see how young they are inforced to it pag. 155. So between the King of Spain and the Pope the poor Indians pay dear for marriage which God left free The Civil Law is said to be Jus Leoninum The Canon Law Jus Vulpinum The Feudal Law Jus Asmarium in regard of the intollerable oppression and servitude in it I conclude therefore Marriage Filiation and Succession not fit to be judged by any of these three Laws CHAP. IV. Marriage Matrimony Legitimtaion or Succession not to be judged by the Law of Mahomet YOU will not offend God in speaking a word in secret to Women that you research in marriage although you conceal in your minds your design to espouse them he understandeth whatever you think of them Alch. cap. 2. pag. 23. Of Persons with whom Marriage is forbidden Marry not the Wives of your Fathers what is past was Incest abomination and a wicked way your Mothers are forbidden you your Daughters Aunts Nieces Nurses and your foster Sisters The Mothers of your Wives the Daughters that your Wives have had by other Husbands The Daughters of Women that you shall have known are also forbidden you if you have not known them it will be no sin The Wives of your Sons are likewise prohibited and two Sisters for what is past God is Gracious and Merciful Married Wives are likewise forbidden except the Women-slaves that you shall have acquired God hath so commanded you Except what is above forbidden it is lawful for you to marry at your pleasure Of the Time of approaching Wives When your Wives shall be clean approach them according to what God hath commanded He loveth them that repent of their Error and are clean and purified Your Wives are your Tillage go to your Tillage at your pleasure And do good to your Souls you shall one day find it fear God and preach his Commandments to true Believers Alchor cap. 2. pag. 21. Of forbearing to touch Wives God will be Gracious and Merciful to such as shall swear not to touch their Wives the space of four Months if he return to them he is Gracious and Merciful but if they desire to repudiate them he understandeth and knoweth all things Women Divorced shall tarry until their Terms be past four times it is not permitted them to conceal what God hath created in their Wombs if they believe in his Divine Majesty and the day of Judgment Alchor cap. 2. p. 22. Of the propriety of the Wife in her Goods distinct from the Husband Oh ye that believe in God it is not lawful for you to inherit what is your Wives by force Take not violently away from them what you have given them unless they be surprized in manifest Adultery see them with civility if you have an aversion from them it may chance that you have a thing wherein God hath placed much Good But if you desire to repudiate your Wives to take others and that you have given them any thing take not any thing that appertaineth to them Will you take their wealth with a lye and a manifest sin how shall you take it since you have approached each other with a promise to use each other civilly Alchor cap. 4. pag. 49. Of giving Suck by the Mother and Aliment to her and her Child and Aliment by the Heir to his Parents The Women shall give Suck to their Children two years intire if they desire to accomplish the time appointed to suckle them the Father shall nourish and cloth the Wife and his Children according to his faculties Expend not but according to the measure of your Goods the Father and Mother shall not necessitate themselves for their Children The Heir shall perform what is above ordained he shall entertain his Father and Mother according to his abilities If the Parents would wean their Children before two
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
and subscribed by the parties on their parts it was thought necessary by them that God should make some manifestation on his part that he would accept it in that form of words it was written and to that end Dr. Dee with Edward Kelly went to the Chappel to the South Table and there Dr. Dee saith he first praying to Almighty God Creator of Heaven and Earth to encrease his Faith and open the eyes of his Heart He read over the Covenant verbatim before the Divine Majesty and his holy Angles After a quarter of an hour Madimi appeareth Madi Pepigistis Dr. d ee Pepigimus A Voice Ratum est perumpite sunt vobis omnia communia Dei non hominis estote promissa quae sunt possidete vobis distinata A ternus sum Edward Kelly declared formerly his opinion That all Spirits appearing in the shape of Women were evil Spirits and not good which is seems made him not again acquiesce in his apparition of Madimi he therefore May 20th required again the writing subscribed to expunge his name from it but having got it he cut it into two equal parts and kept that part wherein were his own and his Wives names and returned the other to Dr. d ee and his Wife But afterwards Madimi did with her finger drawn on the two papers make them whole again c. Then an apparition is made of Christ standing in a great Globe of Fire with a Purple Robe Christus Who sitteth on the Cherubims c. As I humbled my self to Death wherein the Unity between my Congregation and me was before my Father perpetually sealed c. So be you content to be the figures of the things that are to come by you that it may be a perpetual Testimony before the Heavens and before Men of your perfect and sound faith And thou even thou who hast tore in peices this Morning this Covenant which thou hast made with me behold the time shall come that thou shalt be torn in peices thy self and I will turn away my face from thee for a time c. But because thy mind was never to forsake me even so shalt thou never be forsaken of me Take heed of the Tempter thou madest a Covenant with me in paper which thou canst not by tearing the same put out for my Register is Eternal He that pawneth his Soul for me loseth it not and he that dieth for me dieth to Eternal life Behold you shall both as Lambs be brought forth before men in your later days and shall be slain and your Bodies tossed to and fro but I will revive you again Dr. d ee After which as I and Edward Kelly walked out at the new stairs into the new Orchard along the little River to view the small Fish and returning to the fore-stairs again Edward Kelly saw two as high as my Son Arthur fighting with Swords by the River-side and the one said to the other Thou hast beguiled me Then I at length said unto them Can I take up the matter between you One said Yea that you can In what is it said I Then said he I sent a thing to thy Wife by my Man and this Fellow hath taken it from him they fought sâ—re at length he that had it was wounded in the Thigh and it seem'd to bleed afterward he that was wounded did bring a yellow square thing out of his bosom then I guessed it to be my stone which was carried away as is mention'd before suddenly he seem'd to have been out of sight and to be come again he threatned the other that had wounded him and said He would be even with him he asked whether he had lain it under the right Pillow at length they both went one after the other into a little Willow-Tree-Body on the right-hand next the new Stairs into the Garden the Tree seem'd to cleave or open and they to go in Hereupon we went away and I coming to my Chamber found my Wife lying on her Bed where I lay yesternight and there I lifted up the right Pillow on which she lay and there I found my pretious stone that was before taken away by Madimi whereat Edward Kelly greatly wondred and doubted the verity of the shew but I and my Wife rejoiced thanking God Saturday May 23th Proeces ad Deum fundebam c. And then we requested That the Act of Obedience performed according to our Faith conceived of our Vocation from the Almighty and Eternal God of Heaven and Earth might be accepted which is by Apparition and Voice accepted and blessed So hence none doubts to conclude that the Spirits which here appeared and assumed the names and shape of an Arch-Angel and Christ were Devils transformed and neither good Angels nor Christ because they tempted to Adultery and Uncleanness Bishops set up Community of Women for Commutation money The like Community is set up by Ecclesiastical Laws and Bishops by pardoning for Money the deflouring and desertion of as many Virgins as you will so you marry them not before a Priest in a Temple and by the Popish Clergy who have liberty for a small rate or Taxa Camerae to lie with as many Women-Virgins or Wives as they will so they marry them not before a Priest in a Temple So the Authors of the Bishops Certificate of Filiation were the Daemons of Hamon Delphos and other Oracles Bishops Certificate of Filiation where it appears it was the Custom amongst the Heathens when any Son doubted or knew not his Father to consult the Devils Oracle as appears by the example of Alexander the Great Oedipus and others and the Devil gave them their Response by his Arch-bishop or Priest and if they went not to him in person but sent by Certificate in writing which is the same with the Certificate of the Bshop So the Law of Fictions of Marriage by intention of the Mind only without carnal knowledg of the Body Consensus non Concubitus and verba de praesenti without the Act and Consensus non Concubitus facit matrimonium came first from Cecrops an Idolatrous King of Athens and was since revived in imitation of him by Idolatrous Popes and the same Law was confirmed by the Pagan Goddess Juno and the Popish Mother of St. Kentegern both got with Child without a Man as after more at large mention'd to the intent Husbands might not be Unbelievers if their Wives were got with Child without them seeing it is sufficient if they had a good intention in their Mind and spoke Verba de praesenti and there was Consensus non Concubitus So the Law was first invented by Aruspices South-sayers and Astrologers of prohibiting Times and Seasons of Marriage for the Gâ—eeks Romans Times when Marriages go out and come in Chinoys and other Heathen Nations believed their Marriages could not be happy unless the Birds and the Stars were consulted for a lucky day and lucky hour to which purpose is that of
henceforth all Iustices of or in the Courts where any Plea is or shall be depending taken or moved in which Pleas so depending taken or moved Bastarvy shall be alledged against any person party to the same Plea and thereupon an Issue joyned which by the Law ought to be certified by the ordinary that the Iudges or one Iudge of or in the Courts where the said Plea is or shall be depending taken or moved before the time that any Writ of Certificate pass out of the same Court to the Ordinary to certifie upon the Issue so joyned or to be Ioyned shall make a Remembrance under their Seals or his Seal at the suit of the Demandant or Tenant Plaintiff or Defendant in the Plea in which the Bastardy is or shall be alledged reciting the Issue that is joyned in the same Plea of Bastardy and certifying to the Chancellor of the King of England for the time being to the intent that thereupon Proclamation be made in the said Chancery by threé Months once in every Month that all persons pretending any interest to object against the parties which pretendeth himself to be Mulier that they sue to the ordinary to whom the Writ of Certificate is or shall be directed to make their allegations and objections against the party which pretendeth him to be Mulier as the Law of the Holy Church requireth And the said Chancellor having notice of the said Remembrance and Issue joyned and being required by the said Demandant or Tenant Plaintiff or Defendant having the said Remembrance to make the said Proclamation as aforesaid The same Chancellor for the time being shall cause to be made Proclamation in the form aforesaid And the Proclamation so made shall certifie in the Court where the said Plea in which the Bastardy is alledged another time shall be depending And that the Iudges of or in the Court where the same Plea is or shall be depending taken or moved before any Proclamation so to be made in the Chancery make one time such Proclamation openly in the same Court and also another time when the Proclamatâ—on shall be certified by the Chancellor of England and made in the form above rehearsed then the said Iudge shall award the said Writ of Certificate to the Ordinary to certifie upon Issue so joyned or to be joyned and if any Writ of Certificate be made or granted before that all the Proclamations in the form aforesaid be made and certified that then the said Writ of Certificate and the Certificate of the Ordinary thereupon made or to be made shall be void in Law and of none effect And if any Writ before this time be directed to any Ordinary to certifie if the said Eleanor Wife of James be Bastard or not and at this time not certified if it be certified hereafter by virtue of the said Writ that the same Certificate of the said Ordinary so made be void and of none effect Rast pla fo 29.105.261.280.577.609 That one Circuit of Action is too much is well known where 't is unnecessary as on penal Bonds sued at Common Law the party injuried is repell'd from any Plea of Equity either that he paid the Money and the Creditor refuses to deliver up his Bond or to give him an acquittance or that he received an acquittance but it was since burnt by fire or he hath since by any other casualty lost it and forces him to a costly tedious and sometimes inextricable Suit for releif in the Chancery whereby the remedy unless for a very great Sum becomes worse then the disease All which Pleas of Equity and others of the like nature might have been far better determin'd in the same Court of Common-Law as is excellently well done in Scotland by admitting those Pleas of Equity in the same Court and on proof of them restricting the Penalty of the Bond to principal Interest Cost and Damage But here the Birth-right of the Subject wherein not only all his Bonds but Lands and Goods are concern'd is put to a tedious Circuit in the Chancery of Suite and Proclamations and after that again to another Circuit of Action in the Spiritual Court and then again to a third Circuit to Common-Law of Prohibitions and then again to a fourth Circuit back to the Spiritual Court by a Consultation Circuits enough to tire any horse much more any honest man yet shall he never come to the end of his journey at last or if he do he shall be rob'd with Theives and as this Statute mentions if true men fail false Witnesses shall be suborn'd against him which if he had staid in one Court and rid no Circuit at all but the matter had been there tried by Twelve good men and true at a Nisi Prius in his own Country none of these Theives or false Witnesses would have dared to appear as they presume to do in so great a Forest as London in the Chancery Ecclesiastical Courts Affidavits and Examiners Officers there aâ—terrible oppression of the Subjects or if they did they would be easily taken or discover'd There are four mischiefs appear in this Statute caused by Ecclesiastical Laws 1. Circuit of Action 2. Endless delay and costs 3. Subornation and perjury of Witnesses 4. Interfering of Jurisdictions One in ordine ad Spiritualia the other in ordine ad Temporalia one in ordine ad naturalem Equitatem the other in ordine ad Legem communem and as to the same certâ—inly a greater Calamity cannot fall on the miserable Client then to be made a Borderer between two Enemies-Countries an Hare between two Dogs a Mouse between two Cats and a Corne between two Milstones Priesthood changed changeth the Law It is said Heb. 7.12 The Priesthood being changed there is of necessity a change also of the Law Either therefore the Papists Preisthood is not intended to be changed into a Protestant-Priesthood but the whole Papal power translated in time of Popery by the 25. H. 8.21 from Rome to Lambeth must so stand for ever or if it be intended this Papal-Priesthood shall be changed into a Protestant 't is not the changing the Person from Italian to English or the place from Tyber to Thames will do it but 't is the changing of the Laws from Papal to Protestant for Papal Laws and a Protestant Priesthood are no more consistent then Fire and Water Many more great exceptions there are against Ecclesiastical Laws which my great hast forceth me to pretermit CHAP. VI. Marriage Filiation Aliment and Succession not to be judged by such Laws of England Scotland or Ireland as are Reliques of Popery and contrary to the Law of God Of the Law making Marriage a Sacrament Of the profound Popery of the common Lawyers of Transubstantiation of two persons into one person and the mischeifs thereof A Note taken at Kings-Bench of the miraculous Transubstantiation of a Shoulder of Mutton between a Man and Woman Of the Law of Transubstantiation of the Children of the Wife
would not cause the poor Man to be paid for his shoulder of Mutton without all that ado but I after understood that were not the Forms mixt with so many such absurdities there would be little work for them at the Bar. Of the Law of Transubstantiation of the Children of the Wife into the Children of the Husband if he is within the four Seas at the time of their begetting and no probation admitted to the contrary And of Intails on Marriages Husband within the four Seas no probation admitted that the Children were not his Fiction and Falsity allowed against Truth That no probation is admitted to the contrary appears 18. E. 4.30 where Littleton says That if a Man marries a Woman great with Child by another Man whether he knows it or not knows it and within three days after she is delivered of the Child this Child is legitimate and the true Son of the Man that married her And this by a Fiction in Law and with this agrees Coke Com. 244. So here is a Father made not by god but by the Father of lies and a false Child made Legitimate and the true Child of a Father who never begot him and the true Child if he begot any before he was married without a Priest and Temple made illegitimate and a false yea no Child to him who begot him and all this held very good and sound Divinity If marriage of the great bellied Woman be in facie Ecclesiae a brazen facies Ecclesiae it must be where the Devil gives God the Fiction the truth the lie And Coke and Littleton hold it too for good Law I wonder whose Law they mean and so stiff they are in it that Coke Com. 244. saith No proof shall be admitted to the contrary so here 't is not stabitur praesumptione donec probetur in contrarium but it is the sin of Presumption from which the two Fathers of the Law do not pray as the Patriarch David did Psal 19.13 Keep thy Servant also from presumptuous Sins let them not have Dominion over me then shall I be upright and I shall be innocent from the great transgression One of them at least defends the sin of Presumption so high that he saith 'T is presumption Juris de jure non admittitur probatio in contrarium and in fictione juris semper est equitas a meer repugnancy and contradiction which never came from the Law of God nor is consistent with it as appears Psal 96.13 For he cometh to judg the Earth he shall Judg the World with righteousness and the People with his truth And not with fictions and much less with lies so punctually forbidden James 3.14 Lie not against the truth and so severely threatned Revel 21.8 All liars shall have their part in the Lake which burneth with Fire and Brimstone And Revel 19.20 The false Prophet is to be cast in amongst them who though he seems to be the greatest lier in the World yet in none greater then in this his lie of Legitimation against which must be admitted no proof to the contrary The Law of Legitimation is further That if a Woman Elope or run from her Husband with an Adulterer and live in Adultery with him and have a Child by the Adulterer if her Husband be within the four Seas when 't was begot this Child shall be Legitimate and shall be adjudged the Husband's Child and no probation shall be admitted to the contrary as appears 43. E. 3.19.7 H. 4 9.44 E. 3.10 1. H. 6.7.19 H. 6.17 Coke Com. 244. A further descant on the words of Littleton and Coke concerning the transubstantiation of Children of Parents within the four Seas And of the Law of Intails When a Common Lawyer hath for his Fees in a Deed of Jointure very formally settled Lands Messuages Houses Tenements and Hereditaments c. To have and to hold the said Messuages Houses Lands Tenements and Hereditaments with their and every their Appurtenances unto the said A. B. and C. D. and to the Heirs of their two Bodies lawfully begotten and the Priest on Banes or Licence as formally per verba de praesenti contracted the said A. B. and C. D. which he calls Marriage You shall next hear what Heirs the Priest and Lawyer confederated to do their Faeminine Client a good turn by their Fictions whereat they are both good one will expound by the Gospel and the other interpret by the Law to be lawfully begotten of the Body of this Woman aforesaid First Littleton 18. E. Fol. 30. hath said If a Man marry a Woman great with Child by another Man and within three days after she is delivered of the Child this Child he saith is a Mulier that is to say Legitimate that is to say lawfully begotten of the Body of the said Woman by the said Man that married her Yet he saith In putting the case he was begot by another man and makes a very great Fiction in the premises and contradiction in the conclusion of his Case but let it be what it will Coke Com. 244. seconds him and thinks Littleton hath spoken over conscionably or wasts time to allow three days for cannot a Woman of full and lawful Age though she sup a Virgin if she lie with the Law by her side that Night as well have a Child next Day by dinner as if she stayed three whole days he therefore takes off two of the unnnecessary days and says plainly reserving to the Case of Littleton on the Margent That if the Issue is born a Month or a Day after Marriage between Parties of full lawful Age the Child is Legitimate that is as aforesaid lawfully begot And the reason he gives is Quia filiatio non potest probari from which Premises he makes three Conclusions First Ergo probatio non admittitur in contrarium Secondly Ergo if a Man marry a Woman got with Child by another Man and he is born but one day after the Marriage this Child is lawfully begot by the married Man Thirdly Ergo if a man is on or within the four Seas that is within the Jurisdiction of the King of England and a Child in his absence is begot by another Man on the Body of his Mirmaid he left at home this was lawfully begot by the Man on the four Seas Let any Logician if he dare deny the Sequel for here are two Aristostles for the Law but he hath but one for his Logick And there is a greater Aristotle too for the Gospel the Bishop himself to second my Lord Coke Bishop's Certificate Form hath given his Certificate in his Book of Entries Fol. 181. And the foresaid Bishop by his Letters Patents and Close hath certified to the Justices here That he by virtue of the foresaid Writ to him directed Convocating before him such as of right are to be Convocated hath diligently enquired and certified the truth of the matter that in the Chappel of B. in the County of G. in the
Dioccss of L. the Sixth day of August Anno Dom. 1606 Matrimony true pure and lawful Per verba de praesenti according to the form and rites of the Book of Common Prayer of the Church of England between the said A. B. and C. D. was Solemnized by one Mr. A. V. Clerk in the presence of J. J. W. B. W. W. R. M. Witnesses in this part by the said Bishop examin'd and sworn and of other Witnesses then present the said Parties A. B. and C. D. his Wife being of lawful Age and from all other Matrimonial Contracts free clear and clean as the Witnesses so sworn and examined believe This is the Form of Certificate which carries the best Circumstances and Face of a Marriage which can be put on any But the Bishop will give his Certificate as full of a true pure and lawful Matrimony to Coke's Woman with the Adulterous great Belly who lays it down the next day though no Witness will compurgate from other Contracts and transubstantiate as well the Child Adulterous as lawfully begot to be Child of the Husband yet is not this Certificate neither free from fiction and falsity contrary to the Law of God for it is already shewn That it is impossible to make a verbal Contract per verba de praesenti praeterito or futuro matrimonio and that Matrimony cannot be before a Mother nor a Mother before Conception of a Child and that 't is impossible to make a Ceremonial Law of Marriage either of the Church of England or Rome to be the Moral Law of Marriage instituted by God and besides if there were a lawful Marriage there can be no Sequel or Ergo infer'd That the Adulterous Child of the Woman is lawfully begot because the Marriage was lawful or ought to be Successor to the Husband 's Goods because born of the Wife for there can be properly no Adultery nor Adulterous Issue born but within lawful Marriage But Logician beware the Bishop's Certificate and a Law of Transubstantiation alter the case if thy profane Reason will dispute Faith or Episcopal Infallibility in Marriage Filiation and Succession thou wilt be Excommunicated The good Woman hath the same advantage whether she go from her Husband's House or stay there for if the good-man leave her at home and march abroad himself a Soldiering or Merchandizing if still it be within the four Seas and his Stock increase and multiply at home the while more then abroad he must not be so ill natur'd as not to bear the charg of his better Factress then himself During the late Civil Wars A Souldier finding his Wives Children transubstantiated into his I was credibly informed of a Soldier who left his Wife at home with one Child and was for divers Years so long out in Service that before he returned home again his Wife had two more to increase his number at length he returned home to the Town where he dwelt and the Neighbours as soon as they understood it went in shew to welcome him home but withal to see how he would like the increase of his Children in his absence where after they had sat a while he appeared very kind to his Wife and very fond of his Child which he had left at home at his departure supposing the other to have been some Children of the Neighbours who were come in to play with his 'till a while after seeing those Children by his Fire-side to draw closer to his Wife then strangers use to do he asked Whose the Children were the Wife and answer'd him Thine whereat he was much amazed and demanded how that could be seeing he had not been at home so many Years The Wife replyed thou might'st have stayed at home then and got them thy self if thou would'st so there being no other Answer to be got the poor man was glad to take up this new Bag and Baggage when he thought to have rested For the fiction of Legitimation dared give the Truth of the Soldier the Lie to his face yet he knew not whom to send a Challenge or a Duel to In no better case had he been had he in the Service of his King and Country lost his life in a fight at Sea if within the four Seas what he had got with his own Blood must have gone to an Adulterous Blood at the pleasure of his Wife and the Certificate of the Bishop Of the Law of Intails on Marriage and the mischiefs insuing by them Law of Intails causeth Adulteries and disinherits true Heirs It is before shewen how mischievously the true Heirs are dis-inherited and destroyed by Intails to two Bodies and by Littleton Coke and the Bishops fictions on the same who in despight of Truth Religion Sence and Reason God and Nature will have the Adulterous issue of the Woman preferred before the true and lawful Children of the Man in Succession to the Man's inheritance I shall likewise here touch some other few but fatal mischiefs which the Chains and Fetters of Estates by Intails to two Bodies on Marriages whether these Intails are made by the Pontificial or Temporal Laws do cause for it is to be noted that the Laws of Theodora and the Popes which Enact That no Children shall be capable of Succession to the Father but where the Father and Mother were contracted by a Priest in a Temple is an Intailing of the Inheritance of the Man to the Heirs of the Body of the Woman and an excluding of the Heirs of the Man if she prove adulterous So there cannot properly be said to be any Fee-simple in England No Fee-simple in England for Fee-simple it self is by the Popish Law Intailed to the Heirs of the Body of the Woman begotten beget them who will and the Priest who would not therefore be married himself to a Wife lest she should put a cheat on him and bring forth a yâ—ung Lay-man but take a Curtezan put cunningly the Fee-simple cheat on the simple Lay-man and his Fils de prestre too by making a Law That none should be his Heirs unless begotten on the Body of such Woman as he should give him in a Temple Littleton deceived in Fee-simple So Littleton in his Chapter of Fee-simple and his Commentator on him understood not the words his Heirs for every Fee-simple where a Woman is married by a Priest in a Temple is to go to her Heirs of her Body begotten and not to his and let her have as many Heirs as she will begotten by the Adulterer the Husband's Land shall go to her Heirs but let the Husband who is perhaps turned off by the Wife get as many as he will by another Woman none of those shall be his Heirs For which reason in favour of the true and natural Children and that the Father might have power by Act executed in his Life-time to provide for his own especially where he found his Wives Adulterous as Britton fol. 122. saith That the Forms of Deeds of Feoffment
Authors of this Law were the Athenian Owl and the Romish Buzzard making intention of the mind and publication of the Priest to be a Marriage and not carnal knowledge And these two pieces of Nonsence have by their Canon Enacted That Consensus non Coneubitus facit Matrimonium consent not carnal knowledge makes Matrimony if before a Priest in a Temple Owles were plenty in Athens and Cecrops was the first King there who made this Law and the Pope the King of Rome who do excellently well agree in their Laws for Cecrops was the first amongst the Greeks who invented Marriage should be made by the intention of the mind and publication of the Priest and Images should be made and Altars set up and the Sacrifice offer'd So is the Pope the first who hath made Laws amongst the Romanists That the intention of the mind and publication by the Priest should be marriage and that Images should be made and high Altars set up and the Sacrifice of the Mass offer'd Cecrops Reigned a little after Moses and the Pope Reigned a little after Christ but neither of them had their Laws of Marriage or their other Laws from Moses or Christ but from the old Pagan Egyptian Priests and as they did they made their Laws not by that Law of God which was more Ancient then the Egyptian but made their filthy Laws for filthy lucre whereby it 's easie to see in these Birds the Owl and the Buzzard as well as Men how well good Wits jump for their Gain and pretend that Gain is Godliness Verba de praesenti This kind of Matrimony Gratian makes much ado about and disputes the question pro and con whether sponsion by words de praesenti make Matrimony which question is composed of perfect Non-sence and a lye and impossibility For 1. All promises are of things future and not of present or past and 't is as impossible by their Sacrament of Marriage to transubstantiate time future into that which is present as 't is time present into that which is past 2. It is a meer lye for any Man to say to a Woman I do make you a Mother or get you with Child when he doth only promise to do the same and it is as impossible for the Priests to transubstantiate the verbal contract or words into the real contract of carnal knowledge in facie Ecclesiae unless as in the Temple of Venus he will have it actually done in his presence that he may be able the better to give his Certificate thereof on a Tryal of ne unques accouple in loyal Matrimony But I think it a mean condescension for any Philosopher to dispute with the Pedantic Sophistry of Gratian about Matrimony as 't is for a Divine to wast many Arguments against Ttransubstantiation of Mass I shall only therefore turn him off to the Women amongst whom he will not find the most simple Good-wife who will not be able to tell him that an ounce of Mother-wit is better then a pound of Clergy and that Matrimony cannot be without a Mother nor a Mother without Conception nor Conception without knowing a Man unless by Miracle And though he Preach never so impudently That consent and not carnal knowledge make Matrimony yet that is clean contrary to the Text Luke 1.31 where Mary replies to the message of the Angel Thou shalt conceive in thy Womb and bring forth a Son How shall this be seeing I know not a Man And might have been witnessed by the Angel himself of whom Christ saith They neither marry nor give in Marriage which they might do if verba de praesenti will do it But the next two stories will shew whence the Popish Canonists have this Doctrine And the next after will shew by the Testimony of great and vertuous Ladies how impossible 't is and much better they deserve to have implicit Faith given them than to the Doctors Of the Pagan Goddess Juno and the Popish Mother of Saint Kentigern both got with Child without a Man Juno the Mother of Kentigern both got with Child without a Man Juno being displeased that Jupiter should bring out Minerva the Goddess of Wisdom only by striking his head without a Woman She also consulted the Goddess Flora as good a one as her self how she might bring out a Son without a Man she meant without her Husband Flora bid her touch a Flower which was in the field of Olenius which being done she conceived and was her own Midwife too as well as Jupiter and brought forth Mars who being a Son of discontent was made the God of War and Discord In like manner the Mother of St. Kentigern being in great distress and fervent desire of a Son she earnestly prayed and begg'd of Jesus that she might imitate his Virgin-mother in conception and birth of a Child without a Man and accordingly within a little she finds her self with Child and often protested she never knew Man but by the Law of that Countrey where she lived she must because she was thought to be very light be cast head-long from the top of a high Mountain she weeps and prayes but the Executioner doth his work and on tryal found her far lighter then she was thought for she fell down and was neither kill'd bruised nor hurt but was then carried on Ship-board many Leagues into the Sea and there turned out into a small Boat of Leather destitute of all human help yet with great speed and safety she arriveth at a far distant Port and Landing she is delivered of a Son that famous Saint St. Kentigern who no doubt if his Mother had but prayed that this Son might have been born without a Mother too as he was without Father and been left on the Sea shore at the same place she brought him forth and the Sâ—epheards might find him there no doubt he had then been the second Miraculous Adam or Melchisedeck without Father or Mother in this latter Age of the World Of the Lady Ann of Britain married to the bare leg of the Embassadour of the Emperour Maximilian Ann of Britain Charles the Eighth the French King having Ann the Daughter and Heir of Francis Duke of Britain in his custody she being Inheritrix to that Dutchy to Unite Britain to France intending to marry the said Ann one obstacle amongst others alledged was That she was pre-contracted and married to Maximilian by the usual Ceremony of his Embassador putting his bare Leg into Bed to her for his Master 1. For the Contract he held it invalid because she was his Homager or Ward and her Marriage by the Tenure belonged to him 2. His Divines told him that the Ceremony of marrying by Proxy by putting the bare Leg into her Bed was only an invention of Men and was no consummation by the Law of the Church and on the same reason it might as well be said that Banes Publication and Contracting of Marriage in facie Ecclesie and Promulgation
of the same by the Priest are inventions of Men and but Ceremonies as well as the other Heyl. 196. This was a Contract but no Matrimony Of Pulcheria Sister to Theodosius the Emperour married to Martianus Of the Lady Etheldred married to two Husbands The Lady Amigunda married to the Emperour Henry the Second The Lady Editha to Edward the Confessor The Lady Ann of Cleve to Henry the Eighth all married by the Priest but not by their Husbands Zonaras reports That the Empire being in great danger by reason of Wars with the Goths Pulcheria on consideration that there was necessary to be chosen some able person to be Emperour against them Theodâ—sius being dead without any Son and Martianus an old experienced Captain being taken to be the fittest for that purpose he was chosen Emperour by the order of Pulcheria the Sister of Theodosius and to give him the greater Authority Pulcheria assented to marry him on security given by him that they should both live Chast and he suffer her to continue in Virginity on which they were married and they both faithfully observed their agreement of Chastity This Lady made a very repugnant Vow to live a Nun yet to marry therefore I think her Vow doubly unlawful first as to her self if young open to a necessary temptation and then as to her Husband though an old Soldier to a probable one Mr. Ricaut Turk Hist p. 72. Saith Ghear Han Sultan That Ghear Han Sultan Daughter to Sultan Ibrahim hath had already five Husbands yet continues a Virgin Etheldred Etheldred was the Daughter of Anna King of the East-Angles she was married to two Husbands one after another yet continued still a Virgin and at last became a Nun and was Canonized a Saint under the name of St. Audry Amigunda Henry the Second Emperour having married Amigunda the Daughter of the Count Palatine of Rhine they lived most Chastly both of them observing voluntary Virginity without having any carnal knowledge one with the other It is reported that being accused of Adultery she purged her self by going bare-foot upon plates of fiery hot Iron and that the Emperour was Penitent for exposing her to such danger being so Chast and Vertuous a Woman she was very much beholding to him to deny to Husband her himself yet quarrel so far as to suspect her of another Edward the Confessor married Editha the beautiful and indeed vertuous Daughter of Earl Godwin Editha and because he had taken displeasure against the Father he would shew no kindness to the Daughter he made her his Wife but conversed not with her as a Wife but only at Board and not at Bed or if at Bed no otherwise than David with Abishag and yet was content to hear her accused of incontinency whereof if she were guilty he could not be innocent and he not only entertained such thoughts of his Wife but the like accusation against his own Mother Queen Emma of unchast familiarity with Alwin Bishop of Winchester and suffer'd her to be put to her purgation of fire Ordeal by passing over Nine red hot Plow-shares bare-foot which she all escaped to the astonishment of the beholders and thereupon was adjudged Innocent though there might be much jugling in those Tryals but whether there were so or not it became not a Son to divulge the shame of his Mother It seems he was Chast but without discretion and not without injury to his Wife and impiety to his Mother Bak. Hist 18. Ann of Cleve The same dealing had the Lady Ann of Cleve who was married to Henry the Eighth who lay by her six Months yet left her a Virgin And when her Ladies who attended her said they looked now every day to hear of her being with Child to whom she reply'd They might look long enough unless saying How dost thou sweet-heart Good-morrow sweet-heart and such like words could make a great belly for said she more then this never passed between the King and me Bak. Hist 288. I hope therefore none of our Protestant Ladies will believe this wicked Doctrine of Pope or Turk That Consensus non Concubitus facit Matrimonium if they do we shall have no young Souldiers to fight against either Of the Custom of desertion of Virgins after deflouring Of the desertion of the Lady Lucy by Edward the Fourth for the Lady Elizabeth Grey and the infelicity followed thereon to them and their Children Of the like desertion by a Gentleman in Ireland after the birth of a Child Of the ancient Form of Marriage-Contracts Se post concubitum non deserturum now repugnantly turned into verba de praesenti Of Seditions and Civil Wars raised for the said Crime of Desertion Of the Law giving liberty of Temptation of a Minor married to an Husband of desertion of her Husband after carnal knowledg and to take a richer A relation of the same practised in Scotland Of the Law tempting Women to desert their Husbands by giving more Alimony then the Portion Desertion of the Lady Lucy by Edward the Fourth There being a Marriage in Treaty between Edward the Fourth King of England and the Lady Bona Sister to Carlot the French Queen the King happen'd to fall in love with the Lady Elizabeth Grey the Widow of John Grey who in the Civil War between the House of Lancaster and York was his Enemy and died in Battel at St. Albans against him the old Dutchess of York his Mother was very eager for the French Match but however desired if that did not please him and he would needs marry one of his own Subjects he should rather marry the Lady Elizabeth Lucy whom he had a little before inticed to his Bed which was a Marriage before God and better then the Lady Elizabeth Grey who was the relict of another Man and his Enemy too and thereupon she instigated the Lady Elizabeth Lucy to claim a Praecontract of him which Lady though set on by the King's Mother and others yet when she was solemnly sworn to speak the truth she confess'd to this effect That he never in direct express words made any Promise or Contract to her of Marriage but he spake so loving words unto her that she verily hoped he would have married her and that if it had not been for such kind words she would never have assented he should have lain with her on which pretence the flattering Bishops as though all Impediments were removed by the not proving any express or formal words of Contract though the real Contract of lying with her was apparant to please the King gave him their allowance That he should please his second Fancy and not to be tied to his first And he accordingly married Elizabeth Grey according to the Ecclesiastical Law Consensus non Concubitus facit matrimonium Which Repudiation of the Lady Lucy was certainly as much against the Law of God as the Bill of Divorce by the Law of Moses was against
gravity when he meets another especially when they come to discourse of their rare Art of Divinity in finding Birds Nests and filling them with young Cuckows making the People beleive they are Sparrows So here appears an impossibility if theâ—â— were a Thousand Witnesses for any of them to Testifie Marriage or Filiation but the Parents and it is before shewn God hath not prohibited Marriage without Witnesses nor made it Fornication and it is likewise shewn That the Law prohibiting Marriage without Witnesses came from the Devil only for the filthy lucre of the Priests and no inconvenience can be objected against Private Marriage and Carnal knowledg without Witnesses or if there could yet allegare inconveniens non est solvere argumentum so positively deduced from the Law of God I conclude as before First That here is nothing objected which can make private carnal knowledg between Persons not prohibited by the Law of God to Marry Fornication Mischiefs of publick Marriage Secondly That therefore liberty of Conscience ought to be permitted to Dissentients from the Popish Law to marry publickly or privately with or without Witnesses as suits best with their desires and conveniences Rivalry First Because compulsion to publick Marriage or Wooing causeth Rivalry both in Men and Beasts and publick Wars and Calamities amongst Men have insued from Rivals to one Woman and Nature it self hath instructed the Beasts which are not able to defend themselves to retire into Woods and secret places in Pairs to secure themselves from Rivals Polyandry Secondly This causeth Polyandry when one Woman is Courted by two or many Rivals she lies under the Temptation of tasting them all and not till necessitated to fix on one this likewise Nature teacheth Beasts by secret retirements of their Females to avoid promiscuous Sires of their young Rape Thirdly It exposeth Brides to Rapes thus did the Lapithae lay their plot to fight for a Bride at a publick Wedding which if the Marriage had been secret without Witnesses had been prevented So had the wicked Laws of King Evenus the Moors and Indian Bramyns that Courtiers and Priests should have the first Nights Lodging which were Rapes on the Brides and might have been prevented and those filthy Laws would have been to no purpose if the secret Marriages of Nature without publick or private Witnesses had been observed Fourthly As publication of Marriages Fraud or intention of Marriage before Witnesses may cause Rape and Violence so it may cause Fraud and Deceit which a secret Marriage only known to the Parties would prevent as appears Gen. 29.21 And Jacob said unto Laban give me my Wife for my days are fulfilled that I may go in unto her And Laban gather'd together all the men of the place here are publick Witnesses enough and made a Feast And it came to pass in the Evening that he took Leah his Daughter and brought her to him and he went in unto her And Laban gave unto his Daughter Leah Zilpah his maid for a handmaid And it came to pass that in the Morning behold it was Leah and he said unto Laban What is this thou hast done unto me did I not serve thee for Rachel wherefore then hast thou beguiled me Now if all the men of the place had not been called together but Jacob had gone in unto Rachel secretly he had prevented so great a Fraud of Laban put upon him I happening to be in Scotland had the honour of acquaintance with a Gentleman there and I thank him of receiving a noble entertainment at his House concerning whose Marriage I was given this relation There were two young Ladies Sisters of great Beauty drawn by the Pencel of Nature and not of Art and not in her vulgar manner as express'd by the Love-Poet Facies non omnibus una est Nec diversa tamen qualem decet esse Sororum But so like one another that they could not easily be distinguished each was Gratusque parentibus error often beguiling their Parents with that pleasant deceit One of these Ladies was married by this Gentleman and as I remember I was likewise informed that the Scots Custom was to make themselves merry at their Weddings that the next day after the Brideall night when Dinner was ended and a Voider brought in the Bridegroom was to stand with a Creile or Basket on his Back and the Company used as they pleased to throw into the same as into a Voider so long till the Bride in good-nature took it off from him with her own hand which the fooner she did the better Wife they judged she would be the Bridegroom being put to this task of the Creile many loaded upon him so long and the Bride shewing no pity releive him he looked back very wistly on her as he thought saying Sweet-heart will you not help me She Answer'd No I am a Maid whereat the company fell a laughing which much amused the Bridegroom at last after they had made sufficient sport with him about it the true Bride was brought down the stairs who took off his Burden the other who refused being her Sister dress'd in her Cloaths Here might far easier have been a deceit imposed then by Leah had there not been greater honour and virtue in the Parties then in Laban yet neither here could it have been done if the Marriage had been secret Against natural Modesty Fourthly Compulsion to marry before publick Witnesses and denial of liberty of private marriage without Witnesses is destructive to the modesty of Nature appointed by God to distinguish Men from Beasts which in all chast and vertuous Persons desires the Vail of Secrecy Adam and Eve made them Aprons of Fig-leaves though they were Man and Wife and none saw them but themselves and the wild Africans and Americans with Skins and Feathers cover their shame Boaz Ruth 3.14 though he intended to marry Ruth yet to keep sâ—cret her lying at his Feet amongst the Sheaves that Night he makes her rise in the dark before one could know one another and bids her not let it be known that a Woman came into the floor And Prov. 30.19 Agar saith There are three things too wonderful for me yea four which I know not The way of an Eagle in the Air The way of a Serpent upon a Rock The way of a Ship in in the midst of the Sea And the way of a Man with a Maid Neither would they ever admit amongst the Hebrews any such idle thing as Banes or publication of Marriage but a Virgin amongst them was called Almah that is hidden or a recluse from the sight of men taking that custom from the Eastern Countries in divers of which the custom of keeping Virgins in their Parents Houses unseen of men is so rigorously observed that their very Wooers are not suffer'd to see them till married and brought to their Beds but marry them on good report as Princes use to do Dishonours the Parties Fifthly Publick Wooing
causeth dishonour to each Party and if any Man address himself publickly to a Lady as a Suiter and after sight likes her not but deserts her this will disparage her the thoughts of the next that is wished are that she hath been blown on and refused the like will it be to the Man if the Lady refuse him Causeth Fornication Adultery Stews and Brothels Sixthly Denial of liberty of private Marriage and punishing the same as Fornication compells men to what is true Fornication and Adultery for if men cannot be allowed secret Marriage and secret Wives without Witnesses they will take secret Fornication and Adultery and secret Whores and Adulteresses without Witnesses which is a Thousand times worse So what St. Austin says Deme lupanaria turbabis omnia libidinibus is not true nor is Toleration of Stews the Remedy appointed by God to cure Lust but private Marriage is the Remedy appointed by God to cure the Stews for it is said by Paul To avoid Fornication let every Man have his own Woman and every Woman her own Man which if denied to such Persons with whose Conveniencies or Conscience it stands not to take a Woman or a Man publickly before Witnesses and a Priest in a Temple is to deny them to take any Man or Woman at all Whereas if liberty were given of private Marriage without Witnesses to such Persons as are not by the Law of God prohibited to marry this would destroy all Stews and Brothel-Houses for what Man or Woman who have liberty to choose whom they like best and to enjoy them privately to themselves would be so mad to hazard themselves in common Stews to be infected with those miserable and deadly Diseases to be robbed stript have their Throats cut or at least spirited to a Ship sold to Barbado's or Barbary or if they scape those greater dangers to be all their Lives persued by Constables Parators Bedels hooted at by Boys Carted Whipt Pumpt and to come to Bridewell and Beggary at last Seventhly Publick Marriages are too costly for the Poor therefore to prohibit them private Marriage Too costly for the poor is to prohibit them all Marriage except such as will undo them the Grand Seignior himself dares not venture on that is publick or the cost of it which is one reason he is never married publickly by a Priest in a Temple One Man may have reason to marry privately and another not and one to marry public and another not Eighthly There may be many reasons likewise both for Rich and Poor to marry secretly and one man may have a Reason which another hath not and it may be not only inconvenient but dangerous to one and not to another therefore it is fit every man seeing it is not prohibited by God should have liberty to marry publick or private with or without Witnesses as it suits best with his conveniencies Henry the Eighth married Ann Bulloigne the Mother of Queen Elizabeth on the 14 of Novemb. and kept the same so secret that it was not known till Easter after when she appeared great with Child And Arch-Bishop Cranmer was married and kept it so secret that it was not known till discovered by the King No doubt the King and Arch-Bishop both had very good reasons for what they did though they thought not fit to divulge them either before or after So Abraham and Isaac both endeavoured to keep their Marriages secret by telling lies they had very good reason for their Secrecy though not for their Lies From what hath been said appears therefore to be proved First That private marriage or carnal knowledg without Witnesses between Persons not prohibited by the Law of God to marry is not Fornication or any other Crime Secondly That it is a remedy provided by God to prevent Fornication and that the same if not forbidden by Papal Episcopal Pontifical or other Diabolical Laws would overthrow all Stews Brothels and common Whores and the whole Mystery of Iniquity of the Romish Anti-Christ which fills his Coffers and supports his Power by these filthy gains and far worse then those Ex lotio collected by the covetous Emperour Vespasian Thirdly That it is a great sin to forbid to marry And that those forbid to marry who forbid either publick or private marriage where not prohibited by God or take away the free liberty of either or compel to either dissentients in Conscience or differents in Convenience and thereby become accessaries to all the Fornications Adulteries and other wickedness which ensue thereby Of the Law requiring Witnesses of Marriage and Filiation where both are acknowledged by the Parents and no third party claims the Father Mother or Child This irrational Law is put in practice where a Man and Woman not prohibited to marry by the Law of God cohabit or keep private company and the pretence is That every Man should have his own Wife and every Woman her own Husband by the testimony of Witnesses which is as frivolous when the parties themselves acknowledge though as is before proved they are not bound to acknowledg it neither is it a sin and none else pretends claim to the Man or Woman as 't is to require Witnesses of every one possessed of Lands or Goods or to force him to answer to a Bill of discovery of his Title where none other claimeth or pretendeth a Title better than his possession The like is it where a Man and Woman acknowledg a Child to be theirs they ought not to be examined nor forced to produce Witnesses whose the Child is unless another as the Harlot did before Solomon claim or pretend right to the Child for where there is no Controversie or Crime proved there needs no Witness or Judge In like manner where a Child is acknowledged by Parents in their life time the Inheritance ought to be suffer'd to continue to him as left without proof of Witness or Enquiry where no other pretends to be a Child to the same Parents or a better right then Filiation for where there is no Controversie between some parties nor Crime proved nor Suspicion there needs neither Inquisition nor Witness nor Judge Of the Law when claim is made by Corrivals of one Woman of Sequestration of her pendente placito and Sentencing either Man or Woman to be restored in Specie and not in Value That where there is a Breach of promise or Contract of Marriage between a Man or Woman they ought to have liberty to repair themselves in damage is granted but that a Woman is to be Sequestred pendente placito or that either Man or Woman is to be adjudged to be restored in specie is denied Sequestration of a Woman unlawful 1. As to the Sequestration of the Woman this is contrary to Magna Charta and the Petition of right to imprison a free Person before Judgment 2. None ought to be taken in Pledge Distrained or Sequestred which cannot be returned in as good Condition as when Taken
Distrained or Sequestred which a Woman cannot be 3. As to return in specie and not in value I say to deliver a Woman to a Man to be lain with against her will is a Rape on the Woman and the like is it of a Man to compel him to lye with a Woman who claims him against his will 4. This indangers the lives of Man and Woman who are mortal Enemies by Poison Sword or other wicked ways when compelled to Co-habitation against their will 5. To sentence either Man or Woman to be taken in specie not in Value according to the practice of the Ecclesiastical Law bring in the great absurdity and wickedness mentioned by Fortescue p. 75 Fortescue 76. where speaking of Tryal by Witnesses in the Bishop's Court he saith If a Man and a Woman make a private contract of Marriage without Witnesses One man Sentenced to lie with two Women and punished for lying with each and after the Man and another Woman make a contract of Marriage before Witnesses shall he not in the Contentious Court be compelled to marry her and also after that in the Penitential Court be adjudged to lye with the first if he be duly required and to do penance as often as by by his own motion and procurement he lieth with the second though in both Courts the Judge be one and the self same person In this case as it is written in Job 40.17 Are not the sinews of the stones of Behemoth wrapped together or perplexed Fie for shame they are perplexed indeed for this Man can carnally company with neither of these two Women nor with any other without punishment of the Contentious Court or Penitential Court but such a mischief inconvenience or danger can never happen by the way of proceeding in the Law of England yea though Behemoth himself doth labour to procure the same Of the Law making all prohibited Marriages Null Marriage without Witnesses or Ceremony not void though prohibited The Law of the Pope and Council of Trent not only prohibited all Marriages except contracted before two Witnesses and a Priest in a Temple but makes them null and void The Law of England prohibits them but doth not make them null and void though the common practice of the Bishop's Court and Certificates contrary to Law follows the Canon of the Council of Trent and though it was made after all Forein Jurisdiction was by Act of Parliament abolished But to speak now according to the Law of God and of the Land I shall first cite the opinion of Grotius and other Authors upon it As to the Law of God Grot. de jur Bell. Pac. pag. 142. saith Si lex humana conjugia inter certas personas contrahi prohibeat non ideo sequetur invitum fore Matrimonium si re ipsa contrahatur sunt enim diversa quid prohibere quid irritum facere nam prohibitio exerceri potest per poenam vel expressam vel arbitrariam hoc genus leges imperfectas vocat Ulpianus quae fieri quid vetant sed facium non rescindunt And after he saith Indecentia est major in Actu quà m effectu saepe etiam incommoda quae rescissionem sequuntur majora quà m ipsa indecentia aut incommodum Actus ipsius If any human Law prohibit Marriage between certain persons it doth not therefore follow that it makes such Marriage void if it be actually contracted for to prohibit a thing and make a thing void are two different things for a prohibition may exercise its power sufficiently by a penalty either Express or Arbitrary and this kind Vlpian calls imperfect Laws which forbid a thing to be done but if done rescind it not After he saith For often times the indecency is greater in the act then the effect and often times the mischiefs are greater which follow a rescission then the act it self With this agrees the expression of Thamar to her Brother Ammon attempting to force her Thamar and Ammon 2 Sam. 13.12 And she answer'd him nay Brother do not force me for no such thing ought to be done in Israel do not thou this folly And I whither shall I cause my shame to go And as for thee thou shalt be as one of the Fools in Israel Now therefore I pray thee speak unto the King for he will not withhold me from thee Howbeit he would not hearken to her voice but being stronger then she forced her and lay with her Then Ammon hated her exceedingly so that the hate wherewith he hated her was greater then the love wherewith he had loved her And Ammon said arise begone And she said There is no cause This evil in sending me away is greater then the other that thou didst unto me but he would not hearken unto her For the same reason King Alcinous adviseth Medea That Medea should be returned to her Father if she were not defloured but if she were the reason will be otherwise as is remembred by Apolonius in his Argonaut So likewise the Sabin Virgins being taken by the Souldiers of Romulus Sabin Virgins their Parents raising Arms again to resoue them home when the two Hostile Armies in Battalia drew neer one another the Romans sent their Foeminine Prizes to mediate a Peace who using this argument to their friends and kindred as they stood ready to fight That it would be a greater injury to their own honour and their friends to take them from their Ravishers who were now their Husbands then their first Rape and thereby obtained it Luther to this purpose relates a story of a young Man he knew at Erfort Luther who tempting his Mother's Maid the Maid acquainted his Mother with it she with a pretence to School her Son into a better Lesson layes her self in her Maid's Bed her Son gets her with Child of a Daughter which being concealed and the Daughter sent abroad to Nurse and School and after being grown up and brought home the young Man knowing not of it married her so that she became thereby his Daughter Sister and Wife After the same being discovered the University was consulted about it who thereupon advised the Mother to repent of her wickedness but seeing the married Couple were ignorant thereof and knew nothing they advised to avoid greater offence that they should continue together Quod fieri non debet factum valet Here was a Marriage prohibited by the Law of God and Man yet when made it appears the opinion of the University was it ought not to be rescinded Law of England doth not null a marriage not according to the Common-Prayer-Book though it prohibits it I am next to speak concerning the Law of the Land which though it prohibit yet doth not null a Marriage not made according to the form of the Common-Prayer-Book The first Reason is It doth not null the Marriage of a Papist which is not according to the Book of Common-Prayer à fortiori therefore
may serve other gods so will the anger of the Lord be kindled against thee and destroy thee suddenly And Nehem. 13.23 It is said In those days also I saw Jews that had married Wives of Ashdod of Ammon and of Moab and their Children spake half the speech of Ashdod and could not speak in the Jews Language but according to the Language of each people and I contended with them and cursed them and smote certain of them and plucked off their Hair and made them swear by God saying ye shall not give your Daughters unto their Sons nor take their Daughters unto your Sons or for your selves did not Solomon King of Israel sin by these things So doth Mahomet command his followers to marry only those of his Religion whom he calls True Believers and saith It is better to marry Slaves who are True Believers than great Princesses who are Vnbelievers So do the Popish Laws and Canons forbid Papists to marry Protestants under the name of Hereticks except with the Pope's Dispensation or License which is only used where he sees a fit opportunity to put such a snare about the Neck of a Protestant as the Philistines did with their Dalilah about Sampson to betray and destroy him So it appears both Jew Pope and Turk are wiser in their generation then the Children of Light The Papists make Laws and prohibit Marriage with Protestants and illegitimate their Children to make them incapable to succeed to a Papists Inheritance The Protestant sleeps and never makes so much as one Law to prohibit Marriage with Papists or to make Papist Children incapable to succeed to a Protestant Inheritance CHAP. VII Marriage Filiation Aliment and Succession ought not to be judged by Ceremonial Laws BY the Law of the Patriarchs or Moses there were no Ceremonies instituted of Marriage and the Marriage of Abraham to Sarah his first Wife was no more then of Adam to Eve Gen. 4.1 And Adam knew Eve his Wife and she conceived and bare Cain and said I have gotten a Man from the Lord. And this appears Gen. 20.2 where it is said And Abraham said of Sarah his Wife she is my Sister And Abimelech King of Gerar sent and took Sarah But God came to Abimelech in a Dream by Night and said to him as Mr. Selden de jur Nat. Gent. 573. translates the Hebrew Text Ecce tu morieris propter mulierem quam accepisti nam concubuit cum ea maritus Behold thou shalt dye for the Woman which thou hast taken for her Male hath lain with her God doth not say he hath carried her to Church and shook her by the hand before a Priest or took her per verba de praesenti or that Consensus non Concubitus facit Matrimonium but the contrary that he had married her because he had lain with her And the very same Marriage without any Ceremony doth Abraham likewise make with his second Wife Hagar Gen. 16.3 And Sarah Abraham's Wife took Hagar her Maid the Egyptian after Abraham had dwelt ten years in the Land and gave her to her Husband Abraham to be his Wife And he went in unto Hagar and she conceived Here Hagar is made Abraham's Wife by no other Ceremony but going in unto her and her conception thereupon And besides going in unto her there is no Ceremony appointed for Marriage in the whole Law of Moses nor had the Jews any custom of carrying the Woman to Church before a Priest but the contrary When they married it was in the open Air and thought it not Lawful in any House whence they might behold the Heavens in memory of God's promise to Abraham Gen. 15.5 And he brought him forth abroad and said Look now towards Heaven and tell the Stars if thou be able to number them and he said unto him so shall thy Seed be But admit Moses had made as many Ceremonial Laws for Marriage as he did for Sacrifices admit the Jews had superstitiously observed as many more by their Customs and Traditions yet were it to no purpose for both Ceremonial Laws and Traditions are all now abolished by Christ Col. 2.14 Blotting out the Hand-writing of Ordinances that was against us which was contrary to us and took it out of the way nailing it to his Cross And Math. 15.1 Where the Scribes and Pharisees asked Christ Why do thy Disciples transgress the Traditions of the Elders v. 3. He answer'd and said unto them Why do you also transgress the Commandment of God by your Tradition For God commandeth saying Honour thy Father and Mother but ye say Whosoever shall say to his Father and Mother It is a gift by whatsoever thou mightest be profited by me and honour not his Father and his Mother he shall be free Thus have ye made the Commandment of God of none effect by your Tradition And vers 9. But in vain do they worship me teaching for Doctrines the Commandments of Men. Here is the very same thing done by Bishops which was done by the Scribes and Pharisees for they on a Ceremonial Form of words used by Children gave them liberty not to honour their Father And the Bishops on a Ceremonial Form of words used by the reputed Father per verba de praesenti presently make the Child honour him who is not his Father nor begat him and if such Ceremonial Form of words be not used and a Certificate of the Bishop thereof then they command the Child not to honour the Father who begat him and command the true Father to illegitimate and abdicate his Child which was truly begotten And this they do either by the Ceremonial Law and Canons or Traditions of Popes But if both Ceremonial Laws and Traditions of Moses and Jews are abolished by Christ and by the Moral Law of God of honouring the Father much more are the Ceremonial Laws and Traditions of Popes and Bishops abolished by the same Moral Law I shall only mention a word more of the abolishing of the Ceremonials by the Testimony of the Popish Writers themselves who though in their works they keep alive all the Ceremonials of Moses's Law whence they can male profit yet in words and Doctrine they so far confess them abolished that they say it were a deadly sin to use them Aquinas therefore on the Question concludes Ceremonialia adeo sunt evacuata ut non solum sunt mortua sed mortifera Judicialia sunt quidem mortua quia non habent vim obligandi non tamen sunt mortifera quia siquis Princeps in regno suo ordinaret illa judicialia observari non peccaret nisi forte hoc modo observarentur vel observari mandarentur tanquam habentia vim obligandi ex veteris legis institutione talis enim intentio observandi esset mortifera The Ceremonial Laws are so utterly void that they are not only dead but deadly and the Judicials are dead but not deadly because if any Prince in his Kingdom will command those judicials to be observed he
the Man doth hold his hand by the Priest's hand and the Womans hand by her Husband's hand and all have the Cow by the Tail and then they pour Water out of the Pot on the Cows Tail and it runneth through all their hands and they lave up Water with their hands then the Priest ties them together by the Cloths which done they go round about the Cow and Calf give some Money to the Poor and their Idol and lest the man should think himself married to the Cow and Calf he gives the Cow and Calf to the Priest which is more then they give to the Poor and so they are Man and Wife and whom the Cows Tail hath joined let no Man put asunder which if they do 't were fit the Priest lost his Cow and Calf In Cambaia as Texera reports They have so great esteem of their Cows that a Merchant Banyan spent 10 or 12 Thousand Dukets in the Ceremony of a Nuptial Feast of marrying his Cow to his Friend's Bull for the greater publication of it not suffering it to be private in the Woods and what were the Cow or Calf the better for all this or who could the sooner know whether the Calf were the legitimate Issue of the married Bull or some other in the Woods CHAP. VIII Marriage Filiation Aliment and Succession ought only to be judged by the Moral Law of God THE debate of the lawfulness of the Marriage of Henry the Eighth with Queen Katherine having been his Brother's Wife being in Agitation it happen'd that Cranmer who was after Arch-Bishop and in time of Queen Mary Martyr'd and Dr. Stephens and Dr. Fox met at Waltham one day at Dinner where falling in discourse about the case the other Doctors thought the Marriage might be proved unlawful by the Civil-Law but said Cranmer It may better be proved unlawful by the Law of God And so it may be said here Marriage Filiation and Succession may be better proved as it is in truth lawful or unlawful by the Moral-Law of God then by Laws of Moses of Nations of Emperours of Popes of Bishops of Mahomet of England Scotland Ireland or any human Laws in the whole World First Because the Moral Law is the Law of Nature Secondly Because the Law of Nature is the unquestionable Law of God Thirdly Because it is a perfect Law and comprehends in it all the innumerable Cases which are impossible to be contained in any human writing Fourthly Because it is a Law universally given as well to Gentil as to Jew and no Nation in the World exempted from the Jurisdiction of the moral-Moral-Law Fifthly Because it is a Law immutable and endureth for ever and neither Jew Pope Turk nor any Power in Heaven or Earth except the Legislator himself is able to change it The Jews have an old Tradition That God when he Created the World left a great hole in Heaven that if any other God arrogated the glory of the Creation the true Creator might bid him stop that hole first When a Jew shall stop the hole Left in Heaven near the Pole When the Sun is in a Sack And the Stars turn spots of black When the Moon 's in Mah'met 's sleive And a Priest shall Nature shrieve And her Palace turn a Grange Jew Pope and Turk her Law shall change When the Moon her head shall dress In the Western Wilderness When in Heaven for a Sign Charles his Wain shall cross the Line When the Earth and Water shall Make two Globes and not one Ball. Then Oh then what is more strange Nature 's God her Law shall change Chang'd may Second-Nature be But no Eye shall ever see Highest Nature change from Good Though by us not understood Yea though none him see or know He Eternal Good will do Through all Forms though Nature range Nature 's God will never change It will be ask't perhaps by some In what Tables God hath writ the Law of Nature concerning Marriage Filiation Aliment and Succession and how it may be read To which I Answer That the Tables are of two kinds the External and Internal and the Readers and Witnesses are of two kinds the External and Internal the External Tables of Marriage are express'd by Christ Matth. 19.4 when the Pharisees question of Divorce whether lawful for a man to put away his Wife for every cause He Answer'd and said unto them have ye not read that he which made them at the beginning made them Male and Female The Male and Female are therefore the External and visible Tables wherein God hath written in living Hieroglyphicks or Figurations of the Sexes his Law of Marriage As to External Tables of Filiation Christ expresseth likewise the same Matth. 18.2 And Jesus called a little Child unto him and set him in the midst of them and said Verely I sayunto you Except ye be converted and become as little Children ye shall not enter into the Kingdom of Heaven Whosoever therefore shall humble himself as this little Child the same is greatest in the Kingdom of Heaven And whoso shall receive one such little Child in my name receiveth me But whoso shall offend one of these little ones it were better for him that a Milstone were hanged about his Neck and that he were drowned in the depth of the Sea As to the External Tables of Aliment they are expressed in his own Mother Luke 11.27 Blessed is the Womb that bare thee and the Paps that thou hast sucked The Paps therefore wonderfully prepared to overflow with Milk just against the time the Child is to be born are External Tables wherein God hath written to Innocents in letters as white as Snow that the Mother ought to aliment them with the Milks of her Breasts And when he hath made the Teeth to break through the Coral Gums he writes in those Ivory Tables That the Father ought to provide stronger meat for the Child The Internal Tables are expressed by Paul 2 Cor. 3.3 Written not with Ink but with the Spirit of the living God not in Tables of Stone but in the fleshly Tables of the Heart The External Readers and Witnesses are all Creatures as appears Job 12.7 But ask now the Beasts and they shall teach thee and the Fowls of the Air and they shall tell thee or speak to the Earth and it shall teach thee and the Fishes of the Sea and they shall declare unto thee Go then and ask the Fowls of the Air concerning Marriage Filiation Aliment and Succession they will shew thee their Mateing their Pairing keeping true Wedlock their private retirement to secret places their holes their Caves their Nests they build for their young their Males and Females who procreated them and not the Bishops to be Judges to which they belong their Grand-mother Earth their dry-Nurse the Sea their wet-Nurse Provision for them all their feeding their sucking their young their teaching them when able go to their Grand-mother and take their Diet with her
Part. Fol. 584. saith And here is to be observed how the Statute of 35. E. 1. hath been dealt with since the 17th of E. 3. for in an Act that Year a branch of the Statute of 35. E. 1. was recited That forbad any thing should be attempted or brought into the Realm which should tend to blemish the King's Prerogative or in prejudice of his Lords and Commons which is now wholy omitted and Fol. 585. he saith Note in the Roll of Parliament of the Statute of 38. E. 3. Cap. 1. of Provisors there are more sharp and biting words against the Pope then in Print a Mystery often in use but not to be known of all men from which examples it is manifest that this came by the Fraud of the Bishops who before Printing were Masters of the Authentick Copies of the Laws appointed for promulgation and since Printing are Masters of the Press to interdict and publish what they will Accipe nunc horum insidias Crimine ab uno Disce omnes These few Frauds are discover'd in Print against the Interdictors of Printers which discovery they would likewise have interdicted if they had been able for these latter Books of my Lord Coke were prohibited to be Printed and got out in the late time of Troubles but by these it is clear which were only spoken obiter and without any inquisition after them that all they are guilty of are not discover'd and that to give either Spiritual or Temporal Judges Power to interdict the Press is to give them Power to have what Law what Gospel what Text what Translation what Canonical what Apocryphal what Scripture what Act of Parliament what Common Law what Statute what Religion what Justice what Liberty and what Slavery they please Besides which Power of Fraud and Forgery destructive to all Truth these further mischeifs follow all interdictions of the Press but I shall first answer such Objections as are made against the Liberty of it Object 1 First If Liberty of the Press should be permitted Enemies would have it equal with Friends Papists with Protestants Hereticks with Orthodox Secondly They would Print Blasphemy Idolatry Treason Rebellion Vncleanness Calumny Reviling Derision and all manner of Heresie Answ 1 To the First is answer'd 1. That it is impossible to exclude Enemies and Papists from Printing they being possess'd of so many Transmarine Presses whence they can with far greater advantage vent their matters then from any Presses in England 2. Admit they could be excluded yet in prudence they ought not but are more necessary to be admitted then Friends for those whom we use to call Friends are pessimum inimicorum genus Adulantes the worst kind of Enemies Flatterers who flatter and sooth us up in our Vices and destroy us but any truth of our Faults we shall never hear but from Enemies Plutarch therefore calls an Enemy a School-Master which costs us nothing 2. As to the matters of Blasphemy Idolatry or Uncleanness neither Enemy or Friend will so far dishonour themselves or their Cause as to Print them openly for it is against their interest As to Treason or Rebellion who that hath an Enemy doth not desire to know before-hand wherein the strength of his Cause as well as of his Forces lies and to have the War Proclaimed in Print before it begin that he may the better provide against Besides if there were but a Law made that nothing shall be printed without the names of the Author and Printer with their Additions and Designations And that all Crimes against the publick committed by Printing should be punished by Indictment according to Law and all injuries to private persons should be reparable by the parties injured on their Actions according to Damage Who would dare make himself guilty of a publick Crime or private Injury in Print to which he had set his name 3. As to matters of Heresie such as by accident become dangerous to public safety the prudence of the Legislators may where they find cause prohibit them both Press and Pulpit but not in the Thoughts and Consciences of Men As in the end of the Wars of Germany between the Lutherans and Catholicks it was Enacted mutually on both sides on pain of death That no Catholick should Preach against the Lutheran Doctrine or Lutheran against the Catholick but both should enjoy the liberty of their own Consciences to themselves This agreement was here made otherwise those bloody Wars would never have ended without a total destruction of one of the Parties And likewise such a Law were here much more necessary between dissentient Protestants who were Brethren then it was between the Lutherans and Catholicks who were mortal Enemies That no dissentient Protestant should Print or Preach publickly on any point of Ceremonial dissentiency or other matter not necessary to Salvation except in such matters as are particularly allowed by Supream Authority to exclude Popery there being Field-room enough in the Moral Law of God to exercise gifts in Preaching and matters which have the promise of this life and of that to come and no cause for any to complain who have liberty likewise of Conscience to use what Protestant Ceremonies and Form of Worship they will to themselves though they have not power to compel the Consciences of others who are dissentients But if Protestants are tolerated to Print or Preach against one another this is the thing the Papist would have and knows will in the end make them both a prey to himself But though Protestants ought not to preach one against another yet the juncture of Affairs being not at present in great Britain as before mention'd in Germany and an appearance of War Plotted by the Papist rather to begin than end with the Protestant the Bishops ought not to be suffer'd to interdict either Press or Pulpit to the Protestants against them To come at length to the further mischiefs insuing the Interdiction of the Press any Interdiction of the Press except in Cases before mention'd either to Friend or Enemy is a dishonour to the Protestant Religion as if it dared not suffer it self to be disputed or to meet an Enemy in the open field whereas in truth it is not Protestancy but Episcopacy 'T is not the Moral Law which is the Protestant Law but the Ceremonial which is the Popish Law which dares not encounter the shock of an Enemy And 't is Fiction and not Truth Vice and not Vertue which fears either Press or Pasquil 2. The Foreign Presses being impossible to be interdicted to the Papist if the English are interdicted to the Protestant he is thereby silenced and prohibited to answer the Papist let him preach what he pleaseth 3. By Interdiction the profit of the English Protestant Print-houses will be transported to Foreign Papists which will be a great discouragement to so necessary a Trade in England and prejudice to the Protestant Religion and Policy 4. The Interdiction of the Press will multiply the greater evil
the nearness of the Task-masters increased it to blind the people they pretend all to be for the Queen and as if neither Pope nor Prelate should have to do with it they incited the Queen like the Eagle of Divinity to Soar to the height of Spiritual and Ecclesiastical Supremacy to no other intention than when she had taken the Quarry they might take it from her and exercise it themselves to their own profit and not hers for the next Clause in the Act is That the Queen may assign Commissioners to exercise all manner of Spiritual and Ecclesiastical Jurisdiction which they knew would be to Bishops but they abusing this Power they had got in the High Commission Court and other Commissions this Clause or Branch of Assigning Ecclesiastical Jurisdiction by Commission is repealed 17. Car. 1. Cap. 11. 13. Car. 2. Cap. 12. but the annexation to the Crown and Oath of Supremacy still continuing they continue still in the King's Name to exercise all Acts of Supremacy both of Legislation by continuing and making Canons and of Judgment and Execution above all Appeal in all matters concerning Marriage Filiation and Succession or more than they were given Power by any Commissions to do while they continued which makes them who exercise Acts of Supremacy incapable of being Judges Delegate By pretence of giving the King Supremacy by the Ceremonies of Coronation and Unction they take it from him to themselves Coronation is the Investiture of a King in his Kingdom by the Ceremony of Tradition of a Crown or setting it on his Head so is the Investiture of a Bishop by Tradition of a Ring and Staff or Crosyer and of a Soldier in Feudal Tenures by Tradition of a Ring Sword or Spear The Persons who have used to make Traditions of Crowns have been in Kingdoms where the Priest hath the Supremacy of the King as in Pagan Kingdoms by the High Priest and in Christian Kingdoms by the Pope or Bishop and in Germany by both for the King of the Romans is used to receive three Crowns one of Iron another of Silver and another of Gold That of Iron he receives of the Bishop of Coleyn in Aquisgrave that of Silver of the Arch-Bishop of Millayne in Italy in the same City and in the Church of St. Ambrose That of Gold of the Bishop of Rome in the Church of St. Peter at the Altar of St. Maurice Where Note That Gold may be bought too dear and that three Magpies have got by the Bargain Supremacy over the Roman Eagle But in such Kingdoms where the Supremacy hath been in the King above the Priest the Tradition of the Crown hath been by the People or their Representative which we call here a Parliament or one appointed by them in regard a multitude cannot all do it in person It is likewise to be observed That there is a difference between assuming a Kingdom by Conquest and by Contract for he that comes in by Conquest takes the Crown without Tradition from Clergy or Lay whether they will or no or exercises the Power of the Sword to govern at his Will without a Crown as did the old Roman and now do the Ottoman Emperors who are never Crowned but wear Turbans whereby no Foreign Caliphs nor their own Mufti 's can usurp Ecclesiastical Supremacy for whosoever accepts Tradition of a Crown or any other Symbol or token of Investiture lays aside all Titles by Conquest and receives a Kingdom by Contract with the people and takes an Oath to Govern according to the Laws Contracted which Contract if made with Bishops and they have the Power of Tradition of the Crown if we will believe Henry the Second they will impose their own Terms of Supremacy and every thing else which concerns their profit and how Imperious they have been in arrogating to themselves only the Right of Tradition of the Crown I shall only mention one Example in the Reign of Henry the First who after the death of his first Queen Matild married a second called Adelira and when she was to Be Crowned Ralf Arch-Bishop of Canterbury who was to do the Office came to King Henry sitting in his Chair of State asking who had set the Crown on his Head The King answering I have now forgotten it was so long since Well says the Arch-Bishop who ever did it he did me wrong to whom it belonged and as long as you hold it thus I will do no Office at this Coronation Then said the King The insolency of an Arch-Bishop Do what you think good Whereupon the Arch-Bishop took the Crown off the King's Head and after at the intreaty of the people set it on again and then proceeded to Crown the Queen Here appears a great difference between the Tradition of the Crown by a Bishop and by the People for the Bishop arrogates the Right as the Pope by his Spiritual and Ecclesiastical Supremacy and compels the Prince implicity to acknowledg the same by either receiving the Original Tradition or Confirmation of his Crown from him as one that hâ—th power Jure Divino to give it but where it is received from the People or Parliament neither Superiority nor Supremacy is imply'd nor comes in question but only the form of the Contract for Superiors and Inferiors and Equals may all Contract alike and bind themselves alike whether Superior or Inferior without any regard or consideration of the one or the other Then for the Supremacy Spiritual given by Unction by a Bishop they are ever citing their old Popish rule Reges sacro oleo uncti Spiritualis Jurisdictionis sunt capaces Kings anointed with holy Oil are capable of Spiritual Jurisdiction whereby they make an Appearance as if by their Oil they gave Supream Spiritual Jurisdiction whereas in truth they thereby circumvent Princes and make them implicitely acknowledg the Bishop who anoints to be a greater Supream than the Anointed for the Bishop assuming without Miracle or sign of Mission to Consecrate the Oil he thereby prâ—tends he hath Power Jure Divino to Consecrate and Anoint as some Prophets had by Miracle amongst the Jews and then from Christ's Argument Matth. 23.17 19. Anointing safer for Princes by a Lay-hand and with common Oil than with Oil Consecrate Whether is greater the Gold or the Temple which Sanctifieth the Gold the Gift or the Altar which Sanctifieth the Gift infers whether is greater the Temple or Bishop who Consâ—crates the Temple the Oil or Bishop who Consecrates the Oil and whether is a greater Supream the Person Anointed or the Bishop who Anoints and Consecrates the Anâ—inted So it was by pretence of Consecration of Crowns and Oils by which the Pope first and since the Bishop hath usurped Supremacy over Princes and secretly steal the Supremacy of that Spiritual Jurisdiction to themselves which they pretend to give them But where the Tradition of the Crown or Unction is by the People or their Representative the Parliament according to Contract
between them and the Prince they never pretend any such thing as Consecration in either but a civil Contract obliged by mutual Oaths To shew some farther Authority therefore that never any Pope of Rome or Ralf of Canterbury or other Bishop had any Authority from Christ in the New or the Prophets or Priests in the Old Testament to make Tradition of a Crown to any Temporal Prince but the same belonged to the People or their Representative who were to be Subjects It is evident 1. as to Christ John 18.36 His Kingdom is not of this World 2. He never had any Crown but that of Thorns Matth. 27.29 Nor any Robes but the seamless Coat John 19.23 As to the Prophets and Priests in the Old Testament they never made Tradition of any Crown to any King of Israel or Judah but they received them from the People such as wore them and not from any Prophet or Priest for though Nunrod as is already mention'd alledged or feigned before his Usurpation of the first Monarchy that God shewed him miraculously a Crown in the Clouds and Constantine likewise alledged or feigned that God shewed him miraculously a Cross in the Clouds yet never any material Crown or Cross dropt from the Clouds neither doth it appear in Scripture or any History that any material Crown was ever by Miracle made by God or sent by any Prophet or Priest who should have Authority to make Tradition thereof and thereby give Investiture of a Kingdom nor Robes for though Gen. 3.21 God made Coats of Skins and clothed Adam and Matth. 6.30 clothed the Lillies yet it is before said Solomon in all his glory was not arrayed like one of these Which shews though God made the Lillies he made not Solomon's Robes And the Prophet Ahijah 1 Kings 11.30 though he prophesied the Kingdom to Jeroboam gave him neither Crown nor Robes but rather disrobed him for he caught his new Garment he bad on and rent it in twelve pieces and gave him ten of them And they were the People only that gave him the Investiture by Crown and Robes if those Ceremonies were at all used for it is said Cap. 12.20 The People sent and called him unto the Congregation and made him King over all Israel there was none that followed the House of David but the House of Judah only And Verse 24. It appears that this was from God yet were not the Priests hand in it to Crown him for they would not forsake the Sacrifice at Jerusalem which Verse 27. made Jeroboam to fear that if the people should go thither to sacrifice they would again return to Rehoboam and caused him for prevention to set up the two Golden Calves at Dan and Bethel As to the Coronation of Saul and David we find Saul had a Crown for the Amalekite 2 Sam. 1.10 who tells David he slew him saith I took the Crown that was upon his Head and the Bracelet that was on his Arm and have brought them hither unto my Lord. Coronation of Saul not by the Priest but People 1. It appears not that Samuel gave him this Crown neither is it probable for as hath been said before it appears not in any History that God ever sent a material Crown by any Prophet and as to the Jewish Priests Custom they could have none Saul being the first King in that Kingdom and Law they could have none for the Priest to make Tradition of the Crown to the King for Moses mentions no such thing therefore it was done by the People who were of necessity to shew their assent and acknowledgment by some external Ceremony of acknowledgment of their Governor which after the manner of the Nations after whose example they desired to have a King was by Tradition of a Crown and bringing him Presents which Presents appear 1 Sam. 10.27 to be made by the People and not the Priest for it is there said The Children of Belial said How shall this man save us and they despised him and brought him no Presents Coronation of David on a Conquest by himself As to the Coronation of David it was in a Kingdom he obtained by Conquest made by himself by taking the Crown from the Conquer'd King's Head and setting it on his own head without Prophet or Priest or Contract with the People 2 Sam. 12.26 And Joab fought against Rabbah of the Children of Ammon and took the Royal City And Joab sent Messengers to David and said I have fought against Rabbah and have taken the City of Waters Now therefore gather the rest of the People together and encamp against the City and take it lest I take the City and it be be called after my name And David gather'd all the People together and went to Rabbah and fought against it and took it And he took their Kings Crown from off his Head the weight whereof was a Talent of Gold with the Pretious Stones and it was set on David's Head Thus appears Coronation to be over a Conquer'd People Coronation of David on a Contract by the People but when David hath to do with a free People of Judah and Israel it appears he neither assumed the Crown himself with his own hand nor received Tradition or Investiture of any Prophet or Priest of the same but from the People on Contracts mutually agreed Yea not only the Crown but the Anointing it self which signified the Kingdoms was given by the People or which is all one by their Representative in Parliament and not by the Priest as will appear from the Texts following viz. 1 Sam. 16 13. where it is said concerning David when he was brought before Samuel Then Samuel took the Horn of Oil and anointed him in the midst of his Brethren and the Spirit of the Lord came on David from that day forward 2 Sam. 2.4 The men of Judah came and there they anointed David King over the House of Judah And 2 Sam. 5.1 Then came all the Tribes of Israel to David unto Hebron And Verse 3. So all the Elders of Israel came to the King to Hebron and King David made a League with them in Hebron before the Lord and they anointed David King over Israel And 1 Chron. 1.1 Then all Israel gather'd themselves to David unto Hebron And Verse 3. Therefore came all the Elders of Israel to the King to Hebron and David made a Covenant with them in Hebron before the Lord and they anointed David King over Israel according to the word of the Lord by Samuel By which appears first that the anointing by Samuel of David gave him no Investiture of the Kingdom for Saul was then alive but only he prophesied by this he should be King and Successor after Saul's death and by Miracle prepared and made him capable and fit to execute the Office by giving him from that time the Spirit of God which Miracle likewise followed the anointing of his Predecessor Saul 1 Sam. 10.1 to the 12th Verse But
there is no such Miracle ensues from Episcopal Unction or Consecration neither do they shew any sign of Mission to Anoint as Samuel did but every man that is born hath a sign of Mission from God to Contract with that Prince under the protection of whose Sword he happens to be born to yield him Subjection for Protection and to concur with the whole Body of the other Subjects to present him with a Symbol or sign of the same with a Crown or Oil as here the men of Israel and Judah do to David 2. David anointed by his Parliament That the Anointing which gave David the Investiture of the Kingdoms was made by the Representative of the People in Parliament and not by the Priest for it is said That all the Tribes and all Israel and all the Elders which were a Senate or Parliament to treat for the People and make a League and Covenant with the King for it was impossible for him otherwise to treat with so great a multitude as all Israel had they not agreed to Elect a fit Representative for them therefore it is said The Elders anointed David and no mention made of the Priest neither had the Priest any Law of Moses to anoint Kings 3. That as there was no Crown sent David from Heaven for his Coronation whereby Pontifical men might pretend to have the disposing so there was no Oil sent thence for â—is Anointing but he received both from the People And surely the Mission of the Oil of Rhemes thence is as great a Fable as of the Crown of Nimrod or of the Image which fell from Jupiter neither did there need any Consecration of either for by the Customs of most Nations Crowns and Unctions were but civil Ceremonies of Honour given to the Parties which received them not only in Elections of Kings but almost in all other Solemnities as Military Triumphs Olympick and other Games yea even in their ordinary Feasts both of Aegyptians Greeks and Romans Habent Vnctae mollia serta Comae Ovid. Which shews both Crowning and Anointing of their Guests with Garlands or Crowns of Flowers and Unction with Oil of the Olive both which materials though more properly made by God than Crowns of Gold and Oils confected and Consecrated yet were esteemed but as civil Ceremonies and were a ministred by Lay-hands without a Priest And of this civil Festival Honour of Anointing used amongst the Jews as well as other Nations Christ is pleased to take notice Luke 7.36 My Head with Oil thou didst not anoint but this Woman hath anointed my Feet with Ointment And though both Coronation and Unction were but civil Ceremonies and of humane Institution where no Miracle testified a Divine yet is David called God's Anointed more truly than if he had been anointed by the Priest seeing God gave the Priest no Mission but yet himself turned the Hearts of the People by the civil signs of Coronation and Unction to acknowledg David for their Sovereign for which he himself giveth thanks and saith Psal 18.47 God subdueth the People under me 4. That David doth not make a League and Covenant with the High Priest but with his Parliament who were the Convention of Elders who anointed him 5. That though there had been long Civil Wars between Judah who followed David and Israel who followed Isbosheth the Son of Saul and Abner his General was dead and Isbosheth was dead and there remained with him Victorious and Veteran Armies yet neither Judah nor Israel anointed him till he had first made with them a League and Covenant 6. From hence may be discover'd the great Mystery of Iniquity whereby Popes have terrified Emperors and Kings as their Vassals to receive Crowns and Unctions from them which hath been only by persuading That none but Bishops could Crown or Anoint them the manifold mischiefs of which to Princes and People are too long here to be recited only whosoever will consider them will find it clear That Bishops who have pretended or may pretend to so dangerous a Tâ—nent as That none but they have Right to make Coronations and Unctions are no fit Judges of Successions to Crowns They assume in the Judgment of all matters concerning Marririage Filiation Aliment and Succession to be above Appeal to the Kings Courts It hath been already shewn that Bishops by assuming a Power Jure Divino without shewing a sign of Mission and by false translating Scripture and by corrupting and interdicting the Press exercise a Power superior or equal to the Legislative from which doth follow That such as are Legislators or assume or exercise such Power ought not to be Judges Delegate 1. Because Legislation Supream and Judgment Delegate are two distinct Offices and ought not to be confounded 2. Because it is Repugnant that a Legislator should be a Delegate to himself for in Presentia Majoris cessat potestas Minoris the lesser Power is lost in the greater 3. If wrong Judgment happen to be given there can be no appeal but to those who did the Wrong whereby they become Judges and Parties and Judg in their own Case 4 A Power Delegate to Judg without Appeal ceases to be a Delegate Power and is greater than the Legislative which Power that it is assumed by the Bishops in all Matrimonial Causes is the thing next to be shewn Of the abominable Judgment passed by the Common Law Judges in Kennes Case Coke lib. 7.42 whereby they gave away the Supremacy of the King's Courts to the Bishop and made them in all Causes Matrimonial subject to no Appeal Mich. 4. Jac. In the Court of Wards between Thomas Robertson and Elizabeth his Wife Plaintiff and Florence Lady Stallenge Defendant The Case was This Christopher Kenne Esq was seized of the Mannor of Kenne in the County of Sommerset holden by Knights Service in Capite and 37. H. 8. de facto married Elizabeth Stowell and had Issue Martha the Mother of Elizabeth one of the now Plaintiffs and after 1. 2. Ph. Mar. in the Court of Audience between the said Christopher Kenne Plaintiff and Elizabeth Stewell Defendant the Judg there gave a Sentence in these words Pretens ' tractat ' contract ' sponsalia Matrimonium quin verius Effigiem matrimonij inter Christopherum Kenne Elizabeth Stowell in Minore sua impubertatis aetate eorundem aut eorum alterius de fact ' habit ' contract ' celebrat ' fuisse esse eosdemque Christopherum Eliz. tam tempore contractus Solemnizationis dict' pretens ' matrimonij quam etiam continuo postea idem matrimonio pretens ' Solemnizationi ejusdem dissensisse contravenisse Reclamasse Reluctasse ac eo praetextu hujusmodi Pretens ' tractat ' sponsalia matrimonium de jure nullum nulla irritum irrita cassum cassa invalidum invalida minus efficax inefficacia fuisse esse viribusque juris caruisse carere carere debere Nec non Antedictos Christopherum Kenne
Eliz Stowell quatenus de factor fuerunt ad invicem matrimonio ut predicitur copulat ' ab invicem Separand ' divorciand ' fore debere pronunciamus decernimus declaramus Eosque Separamus Divorciamus eisdemque Christopher ' Eliz. licentiam Libertatem ad alia vota convolanda concedimus tribuimus impertimur per hanc Sententiam nostram definitivam sive hoc finale nostrum decretum quam sive quod ferimus promulgamus in hiis Scriptis c. And after the Divorce the said Christopher Kenne Espous'd and took to Wife Elizabeth Beckwith And after Anno 5th Eliz. before certain Commissioners Ecclesiastical the said Elizabeth Beckwith Libelled against the said Christopher Kenne That before the Marriage between them contracted he had Married with Elizabeth Stowell on which process was awarded against Elizabeth Stowell pro interesse And upon due examination of the Cause it was Sentenced That the Marriage between the said Christopher Kenne and Elizabeth Beckwith was lawful and Sentenced them ad Exequenda Conjugalta obsequia c. And that the said Christopher Kenne was never lawfully Espoused unto the said Elizabeth Stowell and after the said Elizabeth Beckwith died after whose death the said Christopher took to Wife the said Florence by whom he had Issue one Daughter and called Elizabeth and died And Anno 36th Eliz. it was found by Office in the County of Sommerset by Force of a Mandamus after the death of the said Christopher Kenne that the said Elizabeth Kenne was his Daughter and Heir who was within Age Viz. of the Age of Ten Months The Queen granted her Wardship to Sir Nicholas Stallenge and the said Florence then his Wife on which the said Martha alledged her self to be Daughter and Heir to the said Christopher Kenne and with her Husband Silvester Williams Exhibited their Bill in the Court of Wards against the said Sir Nicholas and Florence alledging That the said Martha was Daughter and Heir of the Body of the said Elizabeth Stowell his lawful Wife and that they the said Christopher and Elizabeth Stowell at the time of their Marriage in Anno 37. H. 8. were both of them above the Age of Consent and that they Cohabited together Nine or Ten Years before the said supposed Divorce during which Cohabitation the said Martha was procreate between them and therefore pray they may have License to Traverse the said Office To which Bill the said Nicholas and Florence put in their answer and the Plaintiff examined divers Witnesses and before Publication Sir Nicholas dies and thereupon the said Silvester and Martha exhibited a Bill of Reviver against the said Florence and after Martha having Issue Elizabeth the Wife of the now Pl. died after whose death the said Thomas Robertson and Elizabeth his Wife bring a new Bill of Reviver to revive the first Sute in which the Witnesses were examined and this Case was refer'd to Fleming and Coke Chief Justices and Tanfeild Chief Baron and Selverton and Williams Justices and Sing and Altham Barons of the Exchequer If it be asked for what reason was such a Sentence given my Lord Coke nor the rest will neither tie the Bishop nor themselves to shew any for he saith The lawfulness of Marriage belonging originally to be tried in the Ecclesiastical Court if the Ecclesiastical Judg that is the Bishop Sentence a Marriage Null We that is the Judges of the King's Courts ought to give Faith that is implicit Faith to their Sentence as they do to our Judgment whether true or false right or wrong reason or no reason and so he saith Where the original cause of Sute concerning Marriage belongs to the Common Law Courts the Ecclesiastical Judg is to give like Faith to them as 22. E. 4. in Corbets Case which was this Sir Robert Corbet had by Elizabeth his Wife two Sons Robert the Elder and Roger the Younger and dies Robert the Elder being under the Age of Fourteen takes to Wife one Matilda and they dwell together tâ—ll full Age Et habuerunt carnalem copulam cogniti reputati pro viro uxore palam And after the said Robert put off the said Matilda having no Issue by her and Married one Lettice in the life of the said Matilda and hath Issue by her Robert and dies Lettice Preached openly that she was the lawful Wife of Robert and her Son a mulier Roger the Son of Sir Robert Corbet sues in the Spiritual Court to Reverse these Espousals between Robert his Brother and Lettice for which Lettice sues a Prohibition In which Case it was Resolved 1. That if Robert and Matilda had had Issue and had been unjustly Divorced and after Robert had Married Lettice and had Issue and died that as long as the unjust Divorce had continued the Issue of Matilda could have had no remedy at Common Law the same gives so great Faith to the Sentence of the Bishop 2. That here Roger might sue at Common Law notwithstanding the second Marriage in regard the same was void being made while the first Wife lived On which may be noted the injustice of the Bishops being above Appeal in Judgment in these particulars 1. Here is a lawful Matirmony Consummate by the Birth of a Child and two Persons thereby indissolubly joined together by the Act and Law of God put asunder by the Bishop and his Papal Law Here is a Dispute from Generation to Generation concerning the Validity of a Marriage and Succession to an Inheritance Against the Marriage is alledged That the same was declared void by a Sentence of Divorce or rather of Nullity given by the Bishop Against it is answered by Elizabeth a Descendent of the said Marriage and the right Heir to the Inheritance that the cause of the said Sentence was false And she offer'd to prove that the said Christopher Kenne and Elizabeth Stowell were both above the Age of Consent to Marriage in Anno 37. H. 8. and were then lawfully Married and Cohabited together Nine or Ten Years and the said Martha was lawfully Procreate between them before the pretended Divorce was made Was there ever Probation more Relevant tender'd was there ever better Reason alledged by a poor Lady to defend her Inheritance On this Hoskins Bacon Dodridge and other Council Argued so long from Term to Term as was enough to spend a good Portion before it was got But alas to no purpose for had this Elizabeth been Queen Elizabeth her self these Judges will give no Relief or Hearing against a Bishops Sentence unless his Lordship will please to Revoke it himself And notwithstanding all Arguments to the contrary it was accordingly resolved by all the Justices and Barons That she must go without her Inheritance and her Mother Martha remain a Bastard till the Bishop who made her so should again unmake her which was in plain English to adjudg there should be no Appeal in any case of Marriage Filiation Aliment or Succession from the Bishops to
the Kings Courts 2. He rests not there but says Iisdem licentiam ad alia vota convolanda concedimus So that here not only Licence may be had for Money to Marry but for the same to leave the old and make a new choice as often as they please And my Lord Coke will have the Common Law to give such Faith that they ought not to question these doings true or false right or wrong which sets all Women and Men to Sale for Money and gave the occasion to Cornelius Agrippa to call all Ecclesiasticks Panders General for their Profit 3. The Common Law Judges give the Bishop the same Supremacy of Power in Matrimonial Causes since the Protestant Religion hath made Marriage no Sacrament as they had in the time of highest Popery and made it a Sacrament though Sublata causa tollitur effectus The same ceasing to be a Sacrament and becoming a mear Temporal Contract the old superstitious Faith of a Sacrament ought not to be given those who are no Judges of Temporal matters 4. It is worth a smile in this Case were it not so wicked to see how hot the Common Lawyers were a while in the scuffle for Supremacy of Marriage But no sooner had the Bishops turn'd the muzzles of the Romish Canons against them and discharged their piece of Conjuring in a strange Language instead of a Sentence but our Worthies of the Law fell flat on their faces and yielded the Royal Fort of the Prerogative and all the Protestant Subjects Laws and Liberties eya Magna Charta it self to the Mercy of the Enemy by so abominable a Judgment that no Appeal lay to the Kings Courts against the Sentence of a Bishop touching Marriage Filiation or Succession true or false right or wrong with cause or without cause a Resolve deserving to be mark'd with a Note of perpetual Infamy and Razed out of all Records On which and other Reasons though in most parts of Christendom the Clergy generally composed one Estate of the Country yet since the Reformation they were excluded from being any part of the Estates and of Holland neither were they allowed any Vote in their Assembly and far less Reason have they in England seeing they have equal Privilege here with the Gentry and all other Lay-free-holders in Election of Knights of the Shire to assume any other Power in the Legislative Temporal or Spiritual either in Person or by any other Representative The like Practice is likewise in Venice though they are Catholicks where before the Council sits the Cryer with a loud Voice commands all Priests out of Doors lest they should discover the State secrets to the Pope and likewise assume the Supremacy of Judgment from the Temporalty to the Spiritualty to produce which effects they are a dangerous ingredient to be mixt in how small a quantity soever in any Supream Council and a little Leven of so active a Fermentation Leveneth the whole Lump A Reason is given by Aeneas Silvius why it was held by more That the Pope was above a Council than a Council above a Pope because Popes gave Bishopricks and Arch-Bishopricks but Councils gave none Which doth not only hold in meer Spiritual Councils but in such Spiritual Councils as are mixt with the Temporalty in which the Spiritualty are always Bribed and Pension'd by the gift of their Offices And this is apparent and needs no further proof And if any of the Temporalty receive the like Bribes and Pensions upon lawful proof thereof made it cannot be denied that neither of them are equal or fit Legislators and much less Judges of the Holy Laws of God of Marriage Filiation and Succession of Subjects and least of all of Kings Exceptions against Bishops being Judges in reference to the Judicial Power 1. They are prohibited by the example of Christ to Judg Marriage Filiation Aliment or Succession We Read Christ was at a Marriage-Feast but it was so poor a one they wanted Wine and 't is likely he would have helped them to none had the man been rich for he might have bought enough for his Money without Miracle But Christ shewed his Bounty to the Poor and the Rich he sent empty away We read likewise he taught the Doctrine of Marriage but it was according to the Moral Law of God and all Ceremonial Laws he Established neither did he or his Apostles ever join any hands by the Ceremonies of a Priest or Temple nor ever spake of any other joining Man and Woman together but by God only as it was from the beginning And as to the point of being a Judg of Marriage Filiation Aliment and Succession he utterly refused it though he knew the Fact and the Right far above any Bishop as appears Luke 12.14 And one of the company said unto him Master Speak to my Brother that he divide the Inheritance with me And he said unto him Man Who made me a Judg or a Divider over you To give Judgment in this Case according to Episcopal Doctrine Christ must first have enquired with what Ceremonies the Father and Mother were Married whereby the Marriage must have been first Judged Then Whether these two Brothers were begot before the Ceremonies or after and whether there were Witnesses at the begetting which concerns Filiation Then Whether the Inheritance which according to the Romish Law then Imperial in Judaea included both Lands and moveable Goods were left by a Testate or an Intestate which would have concerned the Aliment and Succession but Christ in a word refused to Judg any of these And those who alledg themselves his Successors ought to follow his Example who if he sent them sent them to teach and not to Judg. For he saith Go teach all Nations but there is not a word of Judging any Nation 2. They are totally ignorant in the Fact and were never Educated in the Laws by which they pretend to Judg Marriage That 't is impossible for them to know the Facts of Marriage or Filiation or to receive any Testimony of the same is already shewn and proved P. 104 105. and indeed the Cook with his white Sleeves who dress'd the Wedding-Dinner and the Tailor who made the Wedding-Cloaths and the Midwife and Gossips who eat the Pie and drunk the Bowl if any Certificate or Judgment were at all necessary as to the Fact of Marriage and Filiation besides that of the Parents were far more credible and fit than the Bishop's who was an Hundred Miles off at the time of getting the Child and of all these doings besides And as to the Law 't is known they were never Educated either in the Civil Canon Common or Statute Laws the knowledg of all which they themselves cannot but acknowledg are necessary to make up an Ecclesiastical Lawyer by which is manifest they are as ignorant of the Law of Marriage and Filiation as they are before proved to be of the Fact With what Face or Conscience can they undertake to be Judges of what they
whole People is to be intended only where the Case is reduced to that necessity that either one or other must be but in this there is no necessity Trial should be by Certificate of a Bishop at all and though uno absurdo dato mille sequuntur were there a Thousand inconveniences followed if the Certificate of a Bishop should be question'd for falsity it being first granted it belongs to him to make Certificates yet there is no necessity that absurdity should be first granted that it should belong to him to make Certificates for there are ways enough wherein no Inconveniences follow of Trial of Truth without Certificates of Bishops 2. The supposition is repugnant and impossible that any Case should happen or be shewn in the World wherein Fiction or Falsity ought to be suffer'd in Judicial proceeding or where Probation ought not by the Law of God to be admitted against such Fiction and Falsity notwithstanding the corrupt practice of Courts to the contrary and such suffering of a private mischief of that kind to a private Person is so far from preventing a publick Inconvenience that it will bring both a private and publick mischief and destroy both for it is as impossible to separate Truth from Justice as the Light from the Sun 3. That which is alledged for an inconvenience to the publick That one Bishop would make a Certificate contrary to another this is no more publick inconvenience than if Thieves should fall out and true men come by their Goods 4. As to what is said That the Certificate of the Bishop is in this Case the highest Trial in the Law we must distinguish the Law for it was then the Law of Popery was Predominant which gave Supremacy in Causes of Marriage Filiation and Succession to the Bishops above Kings and to the Sentences in Bishops Courts and made them above Appeal to the Kings Courts and the Foundation of that their Supremacy was That then by that Law Marriage was a Sacrament and Penance was a Sacrament but the Law being now changed from Popish to Protestant and the Supremacy being now given by the Protestant Law to the King above the Bishop as well in Causes Matrimonial as in all other Ecclesiastical Causes and the Protestant Religion taking away the two Popish Sacraments of Marriage and Penance which were the only Roots whence the Episcopal Jurisdiction of Marriage and the incidents to the same pretended to sprout Cessante Causa ratione legis cessat Lex the pretended Causes of the Jurisdiction ceasing the Jurisdiction it self ceases whereby now the Certificate of the Bishop is so far from being the highest Trial that it ought to be no Trial at all for the Sacraments ceasing the Jurisdiction ceaseth and the Jurisdiction ceasing the Power of Trial ought likewise to cease 5. For Councel to advise his Client to maintain a false Certificate of the Bishops knowing it to be false is as wicked as for the Bishop to make a false Certificate knowing it to be false or which is impossible for him to know to be true as all relating to Filiation are it being their own Rule Filiatio non potest probari except by the Parents wherefore ex Ore Suo they condemn themselves of false Judgment and are not therefore fit to be Judges 11. They Judg by Ceremonies and not by Circumstances As to the word Ceremonia some will have it derived à Cerere because they used divers Formalities in the Worship of the Goddess Ceres But this is not proper seeing all the Heathen Gods and Goddesses had as many Formalities in their Worship as she others derive it from Cerete a Latine Town whither as saith Valerius Maximus the Flamen Quirinalis and the Vestal Virgins fled with their Trinkets while the Gauls besieged Rome others derive it à Cereis from Torches and Tapers lighted made of Wax which amongst the old Pagans was a great Ceremony used in the Temples of their Gods and at their Marriages but this is likewise improper and only figurative to take species famosior pro toto genere and not natural so it appears the Etymology of it is either unknown or it is it self an Original not derived from any Rites which is a word usually joined with Ceremonies and much of the same Signification some will have derived à Ritualibus now the Rituales were old Magical and Superstitious Books of the Hetruscan Priests by help of which they either conjur'd their Gods or made the People believe so and they had all the Formalities written in them which were to be used at making Marriages at laying the Foundations of a City and how Altars Temples and Houses were to be Consecrated and how their Courts of Justice and Counties and Hundreds were to be divided for in all these the old Pagans used to Consult their Augurs Aruspices Bishops and Priests and were like our Books of Ecclesiastical Canons But it seems rather these ritual Books had their names derived from the Rites whereof they were made a written Collection and not the Rites from the Rituals and so Rites as well as Ceremonies may be words which none knows whence they came or whether they will But to come from the Etymology of the word Ceremony to the thing usually signified by it and the difference between a Ceremony and a Circumstance it seems A Ceremony is an Act accessary joined to a Principal not affecting the Principal Act with Good or Evil by the Law of God A Circumstance is an Act accessary joined with a Principal affecting the same Principal Act with Good or Evil by the Law of God Ceremonies are infinite but Circumstances are usually drawn to Seven Heads 1. The Cause of doing the Act which is divided into four kinds The Efficient Final Material Formal and these again subdivided into others 2. The Person by or with whom the Act was done 3. The Place where it was done 4. The Time when it was done 5. The Quantity continued or discrete 6. The Quality which is manifold 7. The Seventh and last Circumstance is the Event of the Act the Civilians expound very improperly and instance whether the Act is done by Fear Force Error Deceit Fault Chance or the like for how can these which are precedent Causes of the Act and therefore ought to be refer'd to the Cirstumstance of the Causes be said to be the Event of an Act which is always subsequent and not precedent to the Principal Act and in that sense is always used by the best Latinists as Cicero in Rhetor. Things are often judged from the Event than which there is nothing more unjust and the Poets agree in the same Careat Successibus opto Quisquis ab Eventu facta notanda putat Eventus Belli incertus wherein it is used for the Fortune and Success following the Battel and not the Fortune or Chance which began or occasion'd it So the Common Law in punishing the Event as the death of any Man within a Day or
Year after his being wounded or beaten punisheth only the Event of an unlawful Act of wounding or beating not of lawful which Event is subsequent and not preceding to the Act. So likewise the Scripture useth the word Event for what follows and not for what precedes as Eccles 2.14 One Event happeneth to them all And Eccles 9.2 There is one Event to the Righteous and to the Wicked And Verse 11. Ireturned and saw under the Sun that the Race is not to the Swift nor the Battel to the Strong neither yet Bread to the Wise nor Riches to men of Vnderstanding nor yet Favour to men of Skill but Time and Chance happeneth to them all Man purposeth but God disposeth Events are only in the Power of God Ceremonies and Circumstances in this agree 1. That they are both accessary and not the Principal Acts. 2. That when single they may be neither good nor evil but when join'd with another Act they may become either good or evil 3. They may be in some junctures each the Principal and in other the accessary Act. 4. In some junctures each may be good in other evil and in a third neither good nor evil that is neither be Ceremonies nor Circumstances 5. In this Ceremonies and Circumstances agree that they have been used and abused in all Affairs and Acts both Civil Military and Religious but I shall here only insist on such Ceremonies as have been abused and compel'd by Pagan and Episcopal Canons in relation to Marriage Ceremonies and Circumstances in this differ 1. Ceremonies and Circumstances differ That Marriage and other Acts are impossible to be done without Circumstances but the same is possible to be done without Ceremonies 2. Ceremonies are always Acts external and made the objects of the external Senses of Witnesses and are of no Use in Marriage but the gains of the Priest where Witnesses are unlawful as in Carnal knowledg or impossible as in Filiation as is already proved P. 104 105. But Circumstances of Marriage may be both external or internal and invisible External as Youth Age Sexes Health Sickness Plurality Unity Internal and Invisible as Religion Conscience Vertue Vice Love Hatred and the like Ceremonies make Acts gawdy which they call decent or deformed before men but Circumstances only make them so before God 3. All Ceremonials are Artificial and not Natural but Circumstances may be both Artificial and Natural 4. No Ceremonies in Marriage are Commanded or Prohibited in the Moral Law of God but many Circumstances are Commanded and many Prohibited in the same Moral Law 5. God is the Author of all Natural and Moral Circumstances which make Marriage lawful or unlawful but the Devil is the Author of Ceremonies where is no Miracle or sign of Mission from God And it hath been before shewn the compulsion to Ceremonies of Marriage came from Daemons and Priests of Priapus and Venus and such as judg Marriage by such Ceremonies come not from God 6. Ceremony is a matter of Formality in Judgment but Circumstance if any is the matter of Substance To conclude it is a thing so absurd to judg by Ceremonies above Circumstances and by Formalities above Substance that never any Lawyer was so shameless to maintain in writing or lay any such Principle in judicial Proceâ—dings to be equal though by the Corruption of Practice not only in Marriage but in all things else The Truth and Substance of Religion and Justice hath been utterly lost and destroyed in an heap of Ceremonies and Formalities invented only for the gains of such Judges as would for that end with such Empty-nothings pretend to wâ—igh Right and Wrong For the Law of man can not make any Ceremony or other matter to be Substance which the Law of God and Nature hath made an Accident or make that Moral which God hath made to be only Ceremonial or make that Act Good or Evil in it self or to affect anoâ—her Act with Good or Evil for to make Moral Good or Evil or a Law for it belongs only to Supream Power Isa 45 7. I form the Light and create Darkness I make Peace and create Evil. Otherwise he were not Legislator of the World Of the manifold Mischiefs which insue by Compulsion to Marry by the particular Ceremonies of a Priest or a Temple It is not here affirmed That 't is unlawful to Marry by a Priest or in a Temple but it is only affirmed That 't is unlawful to compel any so to do by Penalties and especially by so unjust Penalties as is done by the Popish and Eplsâ—opal Canons of making Marriages Null or illegitimating the Children and that 't is unlawful for Bishops to judg Marriages Null or make Certificates of Ne unques accouple in Loyal Matrimony concerning the Parents or of illegitimation of the Child for no other cause than the omission or defect of so frivolous a Ceremony as a Priest or a Temple and that such affirmance is not without cause may appear from the manifold mischiefs which follow Compulsion of the same 1. It compels to enter into an indissoluble Obligation before the Parties can know each other whether they are fit for Marriage or no. Mischiefs of Verbal Espousals before Real Knowledg Proh Deum aâ—que hominum fidem quae haec contumelia est uxorem decrevit sese darâ— mihi hodie nonne oporâ—et prascisse me ante nonne Communicatam oportuiâ— Ter. And. 1. Act. Scen. 5. Oh the Faith of Gods and Men what a scorn is this He hath Decreed to put a Wife upon me to Day should I not first know her should I not first talk with her This Custom of Verbal Precontracts was in ancient time much used amongst the Jews and Marriage delayed a long time after as Jacob's was with Rachel for Seven Years But the later Rabbles finding many great inconveniences in the same injoined if it were at all the same should be a very little while before the Marriage In like manner the Armenians who are of the Greek Church Contract and Espouse together their Children at two or three Years old yea often times the Mothers agree a Marriage between their Children if one happen to be a Male and the other a Female while they are in their Bellies Tavernier Woman deluded This Custom of Precontracts and Espousals is likewise used though not between Children so young as with the Armenians by the Canon Law and most wickedly allowed to be a sufficient Cause of Nulling a Marriage Consummate by Carnal knowledg and Birth of a Child and illegitimation of the same Child of an innocent Person altogether ignorant of such Precontracts Vid. plus of Precontract before P. 88 94 95 c. 1. The inconveniences of Precontracts and Espousals is that when Contracted the one especially the Man delays and deludes the other so long that one chief end of Marriage which is prevention of Fornication is defeated and many times Women are kept along with Promises all their life time and the Man in
is manifest that the Canon of the Council of Trent which nulls all Marriages except before a Priest in a Temple and the Certificates of Bishops and Penance gives a general License for Money either the Taxa Camerae of the Pope or the Commutation Money of the Bishops to have all Women common for by decreeing no Marriages shall be of Validity except with a Woman brought before a Priest and a Temple they null and dissolve all Marriages made by the Moral Law of God and the Obligations of them whereby if any man lie with an Hundred Women and get them with Child if he hath been so cunning as not to lead any of them to a Priest in a Temple there is no obligation on him to own any of these for Wife or Child in regard the Moral Law of God is abolish'd by the Papal and Episcopal Canons and made of no effect by their Traditions and wicked Customs and the Party is left free to lie with as many more and to have common amongst them Sans nombre if he will but give them Money for their Hire and the Bishop Commutation Money and what is this but to have Women common to the Rich and to exclude the Poor who have not Money from having any But this would be prevented if the Bishops would as they ought to do compel the man who gets a Virgin with-Child to marry her according to the Moral Law of God and the express Precept of Scripture Exod. 22.16 If a man entice a Maid who is not betrothed he shall surely endow her to be his Wife Which enticement is as well intended by Money as Wantonness and the Law the same as well in case of Force or Rape as enticement but more Penal Deut. 22.28 If a man find a Damsel that is a Virgin which is not betrothed and lay hold on her and lie with her and they be found then the man that lay with her shall give the Virgins Father Fifty Sheckels of Silver and she shall be his Wife because he hath humbled her he may not put her away all his days This is the clear Moral Law of God and the clear Texts of Scripture and there is by them laid an indissoluble obligation on the man according to the old Form of Espousal Se post Concubitum invitam non deserturum and if there is a Child born by reason of the further Obligation of Parents laid on them by the manifest Act of God it is not in the Power of these Virgins who are now become Mothers will they nill they nor of any human Power to dissolve that which the Divine Power by giving birth to a Child hath once established But Popes and Bishops are so far from compelling these deflowrers of Virgins to Marry then and these begetters of Children to acknowledg them according to this most clear and just Law of God and according to the Obligations both Ex Contractu Reali which are the lying with them and getting them with-Child and Ex Malesicio Reali which are the same that they like the Giants who would storm Heaven Oh Hellish presumption Level all the Canons they have against the Divine Laws of God himself and with them tear in pieces all Obligations laid by them of Husbands to Wives and Fathers to Children that Women may be in common and Children in common Nullius Filii Populi Filii confounding Heaven and Earth and all Divine and Human Rights and subverting the course of Nature as far as they are able to obtain to themselves the inexhaustible Treasure and invincible Power over Princes and People over Emperors and Kings incident to the Jurisdiction of Marriage Filiation and Succession But how easily are these Giants quell'd and all the mischiefs ensue by their letting the World loose to Community of Women and Community of Children 1. 'T is but to give liberty to those who Marry to Marry according to the Moral Law of God and to free them from compulsion to the Ceremonial Law of a Priest in a Temple 2. 'T is but to give Power to the Temporal Judges and Magistrates to compel such as have had Children by Virgins and desert them to acknowledg those Virgins according to the clear Texts of Scripture to be their Wives and not to leave them and their Children in common which ought to be their inclosed Propriety Whence would ensue that if any man saw that whatsoever Virgin he did first touch he should be compell'd to take he would follow the Poets Counsel Multis è millibus unam Elige cui dicas tu mihi sola places Ovid. He would certainly choose unless corrupted by Money one whom he liked above all others and having so fair a Garden inclosed of his own choice he would be the more unlikely to run to graze in a Common or if be should he might find his expectation much deceiv'd for the same Justice having been done by the Magistrate on all others as well as himself he would find no Common to run in but every Quillet inclosed nor should a single Woman be let would she take him where another had Right to claim him As to Fornication Adultery Stews Brothels how great a cause the compulsion of Publick Appearance in Marriage before a Priest in a Temple by prohibition of Private Marriage is the same is shewn already before P. 107 and as to the dissemination by Fornication Adultery Stews and Brothels not only of that miserabile scortorum flagellum the Lues Venerea the inseparable concomitant of those Vices and Places but likewise of all other Epidemical contagious and deadly Diseases amongst the People the same is notorious but Episcopal Courts get as much by the Dead as the Living and more by the Vicious than Vertuous It is their Interest therefore to continue it so long as they can It will be objected against the giving Power to Temporal Magistrates to compel every Man who hath a Child or Children by a Virgin to acknowledg her for his Wife and her Children his on Probation made of the Fact that 't is impossible if Marriages are tolerated without a Priest in a Temple or a Justice of Peace in his Hall or Banns at the Church or Market-Cross to have Witnesses or any other Testimony or Evidence of the Fact unless the Magistrate should give Sentence as the Bishop doth without Probation To which is answer'd First That Toleration of Private Marriage without Publick Witness of Priest or Magistrate is no denial of liberty to those who desire Publick Witness of their Contracts of Marriage no more than the Toleration of passing Lands by Livery and Seisin in Pays is a denial to pass them by Fines and Recoveries or other matter of Record which is publick Testimony but Parties may use one or the other or both as they desire and think suits best with their Conveniences but that which is here press'd is that no Mans Christian Liberty be infringed nor he be compell'd to make publick Witnesses either of
a Publick Treasury might be more equally divided by way of Salary according to the proportion of Skill and Pains The English Judges therefore sent intō Scotland put the foremention'd Statute of Westm 1. cap. 25. to experiment there and turned all Fees into a Publick Treasury to manage which we allowed our Treasurer out of the same Two Hundred Pound per Annum and allowed Salaries to our selves as the State appointed us and to all our Clerks and Officers necessary proportionable to Skill and Pains which Treasury of Fees not only satisfied all the English and Scottish Judges and all the Officers of Justice without any charge or trouble to the State but likewise many Military Officers of the Army and we found by experiment that far more exact Justice was done by Salary than ever any was done by Fees And if the same were practiced here in England it cannot be but the like effect must follow as to Justice but vastly greater as to the increase of the Publick Treasury especially if the number of Judges were reduced to Three who as is after shewn are sufficient to dispatch all matters of Judicature Civil Ecclesiastical and Criminal of the Kingdom Exceptions against Bishops being Judges in reference to the Executive Power They begin the Suit with Execution No Writer of the Forms of Judicial Proceeding except the Bishop was ever so Absurd as to Tolerate much less to Ordain any Law-Suit to be begun with Execution and this is that which makes the Spanish and Romish Inquisitions Romish Inquisition begins with Execution on the Person and the Barbarous Inquisition by Torture of the Civil Law to be so Abhor'd and Abominable that they begin with Execution upon the Person and Arrest him before Judgment Now that not only Arrest before Judgment but Districtio Pignorum or taking of Pledges by distress is likewise Execution appears clearly both by Civil and Common Law As to the first which is Districtio Pignorum or taking Pledges by Distress it is express in the Civil Law C. de Execut. rei Jud. that on a Sentence for Debt or Damage the Judg may order Execution to be done by Distress or taking the Goods moveable of the Defendant as Pledges and if he satisfie not the Plaintiff within the space of Two Months after the Distress is made then the Officer was to sell them and satisfie the Plaintiff As to the Common Law it appears 4. H. 6.17 22. Ass pl. 72. That the Execution after Judgment is in the County Court only by Distress Distress on the Goods is Execution and keeping the same in Pound 'till Judgment be satisfied for they cannot sell the Distress which shews that the Common Law esteemed Distress an Execution after Judgment though it had not the Power to sell the Distress as the Civil Law had That it is an Execution therefore after Judgment both by Civil and Common Law is clear It will be next by some perhaps enquired from whom the Original of this most Anti-Christian Custom came of beginning Suits with Distress and Attachments which differ from Distress in that the one forfeits the Distress 9. H. 7.9 for Nonappearance the other not Capiasses Latitats exaction of Bail Mainprize Outlawries in Civil Actions and Excommunicato Capiendo's in all which the Goods of the Defendant being of greater value than the Debt or Trespass are either seized or detained or what is worse Forfeited and Confiscated or the Person Arrested Imprisoned and sometimes Starved sometimes Poison'd and sometimes Tortured before there is a Copy given him of any Complaint made against him and before the Plaintiff hath so much as taken an Oath of Calumny that he believes his Complaint True and Just and before Hearing Probation of Witnesses and Judgment That this most inhuman and more than Barbarous Proceeding came not from the old Romans though Pagans appears by what Alciat says that not so much as the word Districtus or Districtio which is to be intended before Judgment is to be found amongst any of the Ancient Lawyers and likewise that no such thing as Distress or taking Pledges or exacting Bail caution judicio Sisti Judicatum Solvi or Arrest before Judgment is to be found amongst those which are left of the Laws of the Twelve Tables Yet in them these are express'd after Judgment as appears by the Reliques of the same which follow in these words L. 25. Si in jus vocet atque eat L. 28. Si vis vocationi fuat testamini igitur em capito L. 31. Si vindiciam falsam tulit rei si velit is arbitros tres dato forum Arbitriis fructus duplione Damna Deciditor L. 33. Aeris confessi rebusque jure judicatis triginta dies justi Sunto postidea muus endoiectio esto in jus ducito nei Judicatum facit aut quips endo jure em vindicit secum ducito vincito aut nervo aut compedibus quin Decim pondo ne minore aut si volet majore vincito Si volet suo vivito in suo vivit qui em vinctum habebit libras farris endo dies dato si volet plus dato Wherein though many words are so Antiquated and obscure as no Interpreter can expound them yet so much may be understood from them 1. That their Editio and Oblatio Libelli by giving the Defendant a Coppy of the Libel Bill of Complaint or Declaration preceded their vocatio in Jus Citation and Summons for in the Law Si in jus vocet atque eat the word Atque signifieth Statim presently in which sense it is taken in Leg. filia 20. C. de inof Testam and in Virgil. Atque illum prono rapit alveus amni Now it had been to no purpose when the Defendant had been called to appear before the Judg in Person Statim presently to answer unless the Plaintiff before he had call'd him had made him Oblatio Libelli and given him a Copy of his Bill of Complaint against him and allowed him his dies justi a fit time for him to deliberate and provide for the same Vt veniat paratus ad respondendum Oblatio Libelli precedes Summons when he shall be again called to appear in Person before the Judg and without this if the Judg caused him to appear and cast him into Prison as now Judges do on lying Latitats and false Suggestions all the Poor of the Land who are not able to give Bail and on Forged Outlawries both Poor and Rich without Bail and forced him to answer to Copies of Declarations not deliver'd 'till he had been first cast into close Prison an Hundred Miles from his home where he had neither Meat nor Drink nor Money nor Friends nor Council nor Writings nor Witnesses he had made it impossible for such a Prisoner in Dures to answer otherwise than to grant whatsoever the false Suggesting Plaintiff will Demand of him And that the Obligatio Libelli preceded in jus vocatio agrees Cujac Lib. 10. Obs 10. 11.
either Party both on matters principal and incident till there be a Contumacy to return Answer or a Litiscontestation made and a Commission desired to examine Witnesses and the Parties for Probation this would cause all those little Shreds of Sheeps-skins which so unnecessarily torment the Countrey and the dead Pots to be laid aside as the Popish Agnusses Dei or rather Agnusses Diaboli were and so the Successors to the Popish Clerks would lose their Fees in the one as well as the other to the great joy of all the Protestants 2. What is worse they would lose their Eight pence per Sheet for but Eight words in a Line and Fifteen Lines in a Sheet in Chancery and for Six half words in a Line with a Dash and Twelve Lines in a Sheet at Common Law all which a Boy would far better transcribe for a Peny per Sheet for want of which Oblatio Libelli by the Plaintiff a Rich man will of purpose draw his Bill in Chancery and stuff it with nothing but Falsi iâ—s so long to multiply the Sheets against a Poor man that it will cost him many times Three or Four Pounds for a Transcript for which he must send an Hundred Miles besides before he shall know what he must Answer So that the Rich need do nothing else to undo the Poor but suggest and throw him into the Lions Dens of Chancery Common Law and Checquer-Clerks for Copies of those Legends of Lies they themselves invented whereas if these rich and vexatious Plaintiffs were compell'd to serve Defendants by sending them from their Pallaces but a Copy to their poor dwelling Houses or Cottages what their wills and pleasures are to have right or wrong they would pay as far as they were able rather than if they told them they should first go so far to Clerks to buy Copies of their Will and Pleasure before they would vouchsafe to reveal the same and after be less able to pay than before 3. They would lose all the Gains of those unnecessary and hurtful Entries and Inrollments of the Bills Declarations and Pleas of the Parties in those huge heaps of Mouldy Rolls wherein it is easie for them to forge what they please for no Averment is allowed against Clerks and their Records which should be far better and more Authentick were the Copies delivered Signed by the Parties themselves and only filed orderly as received from the Parties and not Enter'd nor Inroll'd by the Clerks but kept by Filazers 4. They would lose all the Gains de Temere Litigantibus which is more than they have from â—uitors which Sue of necessity and for just Cause and would not have one Suit in Ten which they now have before them for the Countrey-man where the Writ is served before the Bill or Declaration think they shall Conquer presently their Adversary if they but Arrest Outlaw or have a Commission of Rebellion against him whereby they are encouraged by Attornies to rush blindly into unwarrantable Suits which many times undo them Whereas if the Law were as it ought to be by the Precept of Christ That every Plaintiff should first send a Copy of his Bill to the Defendant and heir his Exceptions against it or sind his Contumacy before he Summon'd him before a Judg he would before he would rashly en angle himself in Law-Suits consult Councel and have his Bill or Declaration drawn by them and hear the Exceptions of his Adverâ—ary against it after which there would not one of Twenty dare run headlong on a wrong Suit except Pâ—â—sons extreamly Litigious and shameless Whereas now on Summons and Arrests tolerated before a Copy of the Bill or Declaration given the Defendant vexations Contentions both in Chancery and Common Law are infinite and endless Of giving a Copy before an Oath of Calumny That he who gives it believes the same true and just The Oath of Calumny may by the Civil Law be required not only of the Parties Litigant but of their Advocates and Procurators who are in our Language their Councellors and Attornies and the same is appointed by an Act of Parliament of Scotland the Practice of the Courts there and the same is done not only to the Bill but to all parts of Process alledged either by Plaintiff or Defendant and is of excellent Use to clear those Contagious Plagues and Pests of Judicial Proceedings Fictions and Falsities and to restore Truth which is impossible to be kept alive in Religion or Justice without abolishing the other The Causes which introduce Fictions and Falsities into Judicial Proceeding are Four One the not using the Oath of Calumny The Second the not admitting Averment or Probation to the contrary The Third the not giving the Adverse Party notice of the time and place the Swearer is appointed to be Sworn and liberty to be there present himself or by his Commissioners to except against him if he have cause The Fourth is denial of Travers and Contrary Probation to all that is doubted to be false In the Civil Law there was but one Fiction which was Fictio Postliminii the occasion whereof was the Romans to incite their Soldiers to Conquer or Die which is to take no Quarter toucht by Virgil Jaciat si quem fati sors dura peremit and Horace p. 75. Si non perit immiserabilis captiva pubes If Captive Youth should not be suffer'd to perish without Pity and Redemption it would saith he be a pernitious Example to Posterity had this Cruel Law or Custom That who was a Captive lost the Rights of a Citizen and who died a Captive in the Power of the Enemy his Estate should be confiscated to the Publick Treasury and he should have no Heir to succeed him ff de Captiv postlimin To abate the rigor and severity of this Law the Judges helped the Captive by a Fiction feigning that he was never taken Captive but always remained in the City and the Legislative in imitation of the Judges that they might the less be taken notice of to derogate from their Military Discipline stretched the former Fiction a little further and enacted by their Lex Cornelia in favour of the Heir whose Father happen'd to die Captive to the Enemy a Charitable Fiction not to punish the Child for the Fathers offence that the Father died the next hour before he was supposed to have been taken Captive L. Si is qui pro Emptore in addit marg de Vsucapio And like that of the Midwives of Aegypt to preserve young Children from Destruction seems excusable if it was not possible to do it any way else but these Episcopal Fictions That Marriage is of Souls not Bodies of Spouses not Wives begetting of Children is by Husbands absent within the four Seas not by Adulterers within the Spouses Bed That Sons are not of the blood or kin to the Father who begot them but of him of whom the Bishop will please to certifie them these are not Mendacia Officiosa but
Title of very good if it had been put in Latine might have been more Complementally express'd Optimo had it not been a Danger lest Maximo would have been added whether the Title of very good given to man is always as great a Fiction as the Titles of Sanctus Clemens and Pius given to Popes may be always doubtful in regard Christ himself in Humility refused the Attribute of Good which is a degree under very good Luke 18.19 And Jesus said unto him Why callest thou me good None is good but One that is God but this Title very good is sometimes certain and not doubtful to be a Fiction when it is attributed to the Leudest Person known the Letter begins After my very hearty commendations to your Lordship This when there is a Mortal Feud between the Chancellor and the Lord must be a Fiction Whereas there hath been of late a Bill of Complaint exhibited into the Court of Chancery against you by H. O. Gent. I have thought good to give you notice thereof rather by these my private Letters than by awarding his Majesties Ordinary Process This if no Bill is come in is as great a Fiction and Falsity in a Private Letter as in a Subpoena and it were far fairer dealing with any Noble-man as well as a Poor man if J. O. first took his Oath of Calumny to his Bill and then made him according to the Precept of Christ an Oblatio Libelli and sent him a Copy of his Bill by his own Letter before he troubled him with a Chancellors Subpoena or Letter and made Use of them only on Probation and declaratory Sentence of Contumacy first obtained and after that obtained far fairer dealing it were with J. O. or any Poor man to grant the same Process of Contumacy that a Noble-man shall have against a Poor man and not put him to the extraordinary cost and incertainty of a Chancellors Private Letter to a Noble-man seeing by Law he ought not to receive any Private Letter from him and such Noble-man ought to be punished by the Civil Law de Ambitu and by the Common Law for Maintenance if he send any and this Justice would prevent Fictions both of Poor and Rich and bring forth Righteousness and Truth The Letter goes on and says Wherefore these are to pray your Lordships to give order for the taking out of the Copy of a Bill and for the putting in of your Answer thereunto according to the usual course in such Cases accustom'd at or before Octab. Hill next ensuing By this Prayer here is a Fiction that the old Episcopal Chancellor had an Imperial Authority over the Commons and only Precarious over the Nobles and was a Fiction if he derived his Authority from the King of the weakness of the Royal Power and of a Dishonour to it as if it was not able to do Justice to the Commons against the Nobles as well as to the Nobles against the Commons if a Sheriff at Common Law should Execute his Praecipe quod reddat and his Praecipe quod faciat whereby he is will'd by the King to command those against whom those Writs are directed by writing his humble Letters when he perceives they concerned Noble-men to pray their Lordships to do what he was appointed to command the Law makes him liable to high punishment and why a Chancellor should not be liable to the same who commits the same offence and having the Kings Process to command in his hand will not or dares not administer Equity by the same equal Process to his Majesties Subjects both Poor and Rich appears no reason or rather an higher Quanto Major qui peccat habetur by how much greater the Power of a Chancellor is extending to a Kingdom than of a Sheriff confined to a single Countrey The next in the Letter is Nothing deubting but that your Lordship will have the care and regard which appertaineth but another man may doubt whether he spake Truth or Fiction He concludes well if not in Hypocrisie I leave your Lordship to the most Merciful keeping of the Almighty from Saint A. the 9th of May 1654. Your very loving Friend J. P. Prolixity caused by Fiction The Bill in Chancery for want of the Oath of Calumny is known to be commonly a Pack of Lies from beginning to the end which is full of infinite Mischiefs and destructive to all Justice and makes it of such immense Prolixity for Lies may be infinite but Truths are few and short that it compels the Answer to be longer than it self for every Lie must be Answer'd as well as the Truth and by reason of such Prolixity neither the Chancellor as he ought to do will take the pains to read nor the Councel to be instructed in either but the Truth like a Grain of Mustard-feed thrown into an heap of Tares is lost and impossible to be found and Sentences and Decrees pass'd both Interloquutory and Final without the least Merit of the Cause Started Stated or Debated The Process of the Chancery is almost as mischievous a Fiction as the Outlawry at Common Law which is the Commission of Rebellion that on non-appearance the most Loyal Subject that is may be Feigned Proclaimed and Imprisoned as a Rebel so the Chancellor needs nothing but a Fiction to elude Magna Charta and the Petition of Right and an Hundred Acts of Parliament more if they were made to that purpose to which the Fiction is point blank contrary and destructive and as inconsistent with all the Fundamental Laws of Liberty and Propriety as Darkness with Light yet is there no necessity of it at all for where it is not necessary to take the Defendants Oath but the Plaintiff can prove his Bill by Witnesses full Justice may be done either by Missio in Possessionem where the Action is Real or where it is to stop Suits by the English Injunction or Scotch Suspension and where the Defendants Oath is necessary either for Discovery or Probation on proof made of the Bill and of the Countumacy and Sentence Declaratory a Capias may be awarded against the Defendant as after a Judgment pass'd Fictions of Latitats If we go to the Common Law Process that is as bad infected with Fictions as the Court of Conscience The Latitat is a meer Lie first it supposeth a Bill of Middlesex to precede where there is no such matter then the Defendant is slander'd Latitare discurrere when he lives as openly as any of his Neighbours and never stirs from his home the suggested Latitations are therefore Lies Then it saith De placito Transgr ' Ac etiam for if the Ac etiam be true of Debt then it is false as to Trespass for there can be no Joindure in Action of Debt and Trespass in the same Writ and so the Kings-Bench ought to have no Jurisdiction of Debt notwithstanding this Fiction except on a Writ of Error which is upon the matter confess'd by Coke himself
deliver'd to the Lords and if the King and the Lords agree to the Bill without changing it then they use not to endorse the Bill but the same is deliver'd to the Clerk of the Parliament to be Inrolled and if it be a Common Bill it shall be Inrolled and enacted but if it be a particular Bill it shall not be Inrolled but Filed on a File and it is well enough but if the Party will Sue to have the same Enter'd for his better Security it is well enough it may be Inroll'd and if the Lords will alter the Bill that which may stand with the Grant of the Commons shall not be deliver'd back to them as if they will grant Tonnage and Poundage for Four Years and the Lords grant them only for Two Years this shall not be redeliver'd to the Commons because 't is consistent with their Grant but if Vice Versa the Commons grant for Two Years and the Lords for Four then the same must be redeliver'd to the Commons for their Assent c. Faukes Sir the Case was thus The Bill was put into the Commons after the Feast of Pentecost which was in Parliament time and the intent of the Bill was That the Proclamations should last till the Feast of Pentecost then next ensuing which was Anno 1452. but every Bill of Parliament shall have Relation to the first day of the Session of Parliament though it be put in at the latter end therefore the Lords granted according to the intention of the Bill Prisot Are you certain that the Bill was deliver'd after the Feast of Pentecost which was in Parliament time or not Faukes Truly I do think so c. Markham Do you use to make Inrollment of the Day when you first receive the Bills Faukes No Sir Markham Verily this is a Perilous thing for the Court of Parliament is the Most High Court the King hath and it were well done if every Act and Thing there done which is material and reason of it were Inrolled c. For in this Case if the Bill pass'd the Commons and the Lords in the manner aforesaid before the Feast of Pentecost then the Act is void because of the variance of the Endorsement of the Day by the Lords c. From the Bill c. And it was not redeliver'd to the Commons but it was deliver'd after the Feast of Pentecost then it seems they are agreed for all is one day wherefore this matter cannot determine one way or the other by your Record who are the Clerk c. And now we can give no other credit to what is said but that the Bill was deliver'd the first day of the Parliament c. Fortescue This is an Act of Parliament and we will be well advised before we make void any Act of Parliament and peradventure the matter ought to rest till the next Parliament and then we may be certified by them of the certainty of the matter but however we will be well advised what to do c. This Fiction and the Inconveniences of the same are very well Reformed by an Act of Parliament of Scotland Jac. 6. P. 7. Cap. 121. FOrsameilk as it is understand to the Kingis Majestie and Threé Estaites of Parliament that oftentimes Doubtes and Questions arisis touching the Proclamation of the Actes of Parliament and Publication thereof it being sometime alledged by the Lieges that they are not bound to observe and keép the samin as Laws nor incur ony paines conteined therein quhill the same be Proclaimed at the Mercat Croces of the head Burrowes of all Schires For remeding of quhilkis Doubts in time cumming It is Statute and Ordained be our Soveraine Lord and Estaites of this present Parliament That all Actes and Statutes of Parliament maid at this time and sal happen to be maid at onie time hereafter sall be Published and Proclaimed at the Mercat Croce of Edinburgh only quhilk Publication our Soverain Lord and Estaites foirsaidis decernis and declaris to be al 's ratiable and sufficient as the samin were Published at the head Burrowes of the haill Schires within this Realm And alswa declaris the haill Lieges to be bounden and astricted to the obedience of the saides Actes as Laws Forty Dayes after the Publication of the samin at the saide Mercat Croce of Edinburgh being by-past Fictions of Members of Parliament Resident and Native By the Statute of 1. H. 5. cap. 1. It is Enacted That the Knights of the Shires which from henceforth shall be chosen in every Shire be not chosen unless they be Resident within the Shire where they shall be chosen the day of the date of the Writ of the Summons of the Parliament and that the Knights and Esquires and others which shall be choosers of those Knights of the Shires be also Resident within the same Shires in manner and form as is aforesaid And moreover it is Ordained and Established That the Citizens and Burgesses be chosen of the City and Burrows Men Citizens and Burgesses Resiant dwelling and Freé of the same City and Burrows and no other in any wise And as though this were not sufficient for Excluding Foreigners from Elections It is Enacted further by 23. H. 6.15 That the Knights of Shires for the Parliament hereafter to be chosen shall be notable Knights of the same Counties for the which they shall be chosen or otherwise such notable Esquires and Gentlemen born of the same Counties as shall be able to be Knights So by these two Acts of Parliament it is Enacted None shall be chosen for Knights of Shires but such as are both Residents and Natives of the Shires for which they serve Acts of most high Wisdom and Justice but alas now both Residents and Natives being in practice only turned to Fictions what defence are they to the Subjects in what all they have is concerned the Election of an equal and faithful Representative against the Two Hundred Thousand Pounds discover'd in the Letters of the late Horrible Popish Plotters to pois on all the Elections of Parliament-men through the Kingdom by buying of their Places to Papists and their Adherents Pensioners to Rome and France to sell the most Protestant King Religion and Three Kingdoms for a Spoil to Foreiners and to place such Sheriffs as may in tendency thereto by Fictions of their Returns that the Free-holders Vt major pars totius Comitatus praedict ' tunc ibidem existen ' jurat ' examinat ' Secundum vim formam effectum diversorum statutorum inde edit ' provisorum Eligerunt A. B. milit ' C. D. milit ' infra Comitat ' praedict ' commorantes c. Now if these Knights are not infra Comitat ' praedict ' commorantes Residents of the County and Secundum vim formam effectum Statutorum c. Especially of the 23. H. 6.15 Natives of the County this Return is Fictitious and False and utterly unlawful contrary to the Sheriffs Oath and for which
better Form And Brudnell agreed with Fitzheabert Brook Ch. Justice I conceive the contrary and that the conclusion is not good And Sir as to what is said that the Law is no other but that a man shall Declare his matter in Truth and good Sentence the Law is more than so for without Formality the same is nothing worth as the Form of Law is a man shall shew his matter without Duplicity of Multiplicity yet may matters more than one be True and in good Sentence but they want Formality and therefore are nothing worth and a Form ought to be used or otherwise all things will be in confusion So in Trespass the Defendant ought to give a colour of Right to the Plaintiff yet the colour is not true nor the Sentence the better but it is the Formality which is required and Formality is the chiefest thing in our Law and though the matter in the present Plea appears in Truth and good Sentence yet here wants Formality for he ought here to have concluded not Judgment Si Actio but Sic non est facium for I conceive in regard only two Convenants of the Indenture were read to him and there were more Covenants not read that the whole Indenture is void and it is Fraud in the Obligee And Pollard agreed with Brook that it was no good Plea and that the whole Indenture was void But to this Fitzherbert and Brudnell might have repli'd that admit the whole Indenture had been all void in Law for the Fraud in part and the Defendant might Rigore Juris Plead it yet Quilibet potest Renunciare juri pro se introducio if the Defendant was more merciful than the Law and his Conscience would not suffer him to use Summum jus but doth assent to perform those Covenants were read to him is it therefore Reason or Conscience that the Plaintiff for his good Nature and Courtesie should return him Evil for Good and put the Burden of all the Covenants on him because he would perform any when he needed perform none if he would have pleaded in a Form against his Conscience and that Truth ought to be prefer'd before Fiction and Formality But I leave the Merits of the Cause to others to Censure and shall only upon the whole Dispute take thâ—se Observations 1. It appears by the Case that there are but Four Judges in the Court and they are divided Two against Two Fitzherbert and Brudnell for Truth against Fiction and Substance against Formality and Block and Pelâ—ard for Fiction against Truth and Formality against Substance whence is shown that there have been and are many good men Judges and other Professors of the Law who with all their their Power Desire and long to remove those Abuses of Fictions Forms and other Irregularities which are Reproaches on the Practicers but should they afflict themselves to death can do nothing if equipoised or overpoised by the other Party therefore they ought not to be imputed to those who are not guilty but the consideration of them ought to be left to the Legislative which hath Power to Redress them when they please with a word and shall give account to God if they neglect the same 2. It may be observed how many Contentions arise about a petty piece of Formality when there is none about the Substance which is acknowledged by Coke himself Com. Lit. 303. whose words are these When I diligently consider the Course of our Books of Years and Terms from the beginning of the Reign of Ed. the Third I observe that more Jangling and Questions arise upon the manner of Pleading and Exceptions to Form than upon the matter it self and infinite Causes lost or delayed for want of good Pleading by which he means Formality hath destroyed infinite good Causes which is a most horrible thing to be Tolerated in any Government 3. The next thing observeable is The great Ignorance of Courâ—s themselves in their own Formalities for they have continued by Coke's confession Jangling and Wrangling about them ever since Edward the Thirds time and are yet never the wiser nor any perfect Form invented or settled by them they are still ever Learning and never come to the knowledg of Truth and so will be to Dooms-day if they are not by God sooner called to Account of their Stewardships and this point of Ignorance in their own Formalities is further confessed by Coke in another place where he saith It were to be wished that Littleton had writ something concerning Pleadings which shews he was but a wisher or woulder at it himself for whom if he had been able it had been far more proper to have writ a perfect Form of Judicial Proceeding than to wish the same had been done by one dead Hundreds of Years before and if he could have had him alive 't is likely he was as much to seck as himself for he could not write any directions concerning it to his own Son though it was a point above all other which he desired he might Learn and in respect of which his Tenures were but Trifles but he is fain to leave it to him as his other Quaeries de Dubiis and a Terra Incognita where he should gâ—t Rich Mines of Gold and Silver if he could light on it in these words And know my Son that it is one of the most Honourable Laudable and Profitable things in our Law to have the Science of well Pleading in Actions Real and Personal and therefore I counsel thee especially to employ thy Courage and Care to learn this Which yet neither he nor any since ever learnt or found out in this Climate neither is it possible for any to do unless those very Forms of Actions and Writs are made only Directive and not Coercive and Liberty given of Commenceing and Disputing Suits on more Solid Foundations of Right than can be laid on any Forms in the World especially on such in which the Courts themselves are Ignorant how to proceed and their so many divided and contrary Opinions in the Expositions of the Law have so intangled the cross Threads of their several Clues of unravell'd Opinions that now no Courts unless they clean break them all to pieces are able ever to get out of their own Labyrinth of Formalities and are most commonly in the pitiful Condition wherein Vigelius Dia. Jur. 477. finds his Judg who is Ignorant of the Forms of Judicial Proceeding At nunc saith he Cum Judex Litiscontestationis adeoque judicandi ratione sit ignarus sedet inter Advocatos Procuratores tanquam Asinus inter simias nescit quando Disputationes in Causa permittendae sunt quando contra sunt inhibendae hinc ne necessarias inhibeat non necessarias permittit Advocatis in infinitum Disputandi Licentiam concedit non Semel sed saepius dilationes Dat easque velex levissima causa But now saith he when a Judg is Ignorant how tostate the Point of the Cause and of the Form of
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
or Sheriff or Lord of the Barony in his County unless he excepted Partiality or other just cause against him 4. A taking of Pledges of the Defendant to appear 5. To make Return of the Writ and left Writs should be Counterfeit the Chancellour was Keeper of the Seal and Sealed them It appears by the Lex Julia de repetundis Chancellour not to sell Writs and Copies of Bills and Answers that the Master of Requests or Canceller was not to take any Fees for these Writs for giving or not giving a Judg out of the Province or County where the Defendant lived for it was a great vexation and oppression of the People to be Summon'd out of the Provinces on malitious Suggestions without cause and our own Parliaments in England have often complained against the same oppression here by the Pope on whose Citations and false Suggestions without cause men were compell'd to give personal Appearances at Rome as many and as often as he pleased if any would but buy there of his Officers a Citation and to prevent this vexatious exaction of Appearances on Writs of men out of their own Counties besides the requiring of Pledges on all Common Law Writs and the enjoining of Pledges to be taken in the Chancery-Writ of Subpoena as in the Lex Julia so is it mention'd in Magna Charta Nulli vendentus nulli negabimus Justitiam vel Rectum which is intended of a Writ of Right and all other Writs whereby Right is obtained for if the Chancellour were not to take Fees and sell his Subpoena's and other Writs he would not so often by them make men Travail thorough Nine Shires to Westminster when they may have better Justice done at home in their own County on no other cause than Fictitious and Malitious Suggestions of the Plaintiff and that he may take a Fee for the same and he would Cancel according to his Office more Petitions and Bills than he would Grant but assoon as Chancellours took Fees for Writs which Sale of Right 't is likely as Polydore says came from the French then no Suit could be begun without Writ all were driven to Westminster Parties Witnesses and Juries unnecessarily and to no purpose but to inrich the Judicatories and undo the People in like manner the Plaintiffs and Defendants ought to give one another mutually Copies of their Bills Declarations and Pleas at the expenses of the Giver which is very small and easie to the Parties and not to be compell'd to buy them of the Chancery or Common Law Officers so the Chancellour had neither his Jurisdiction to Judg of Equity or his Sale of all the Judicial Parts of the same and of the Law with it from the Law of England but A-la-mode de France from the Conqueror till Magna Charta abolished his Tyranny by the Judgment of Peers and of his French Comtes by the 28. E. 1. cap. 8. by which Act that gallant King grants every County the free Election of their own Sheriff after which the Land was free from the Chancellours Troubling men out of their own Counties by his Subpoena's till H. 5. Conquer'd France by which as is usual in other Conquests some Touch of the Diseases and Vices of the Conquer'd will be return'd on the Conquerors and accordingly in the time of his Son H. 6. the Subpoena and a Chancellour with a Pretorian Jurisdiction pretended of Equity with Power of making Laws Edicts and Chancery-Orders and Forms of Writs and to Sentence above all Appeal all which Powers belonged to the Roman Pretor of which the French Chancellour was the Ape and Ours of the French and this pretended Pretorian Jurisdiction ever since hath grown so much A-la-mode partly by making Bishops Chancellors who pretended Supremacy in all matters of Conscience and had in their hands amongst the Superstitious the flaming Sword and Thunder-bolt of Excommunication partly by their Power overtopping and overawing the Common Law Judges and partly by flattering the People with doing Justice in the English Tongue which was very grateful to them and would be as grateful now in the Common Law Courts if they could get it the Chancellours contrary to the greatest Fundamental Laws and Acts of Parliaments of the English introduced on them a most lawless Arbitrary Power and Servility of a Foreign Nation to dispose of their Lands Goods Persons Liberty and Propriety at their pleasure And what is more have assumed like the old Romish Pretors the Power of making Laws Edicts Forms Writs Obligatory to the Subject's Persons Lands and Goods for Coke on the Question In what Text the Common Law is to be found saith In Forms of Writs and Forms of Entries in Courts of Records And Bracton saith Breve ad similitudinem Regulae Juris Formatum So who assumes the Power of making Writs Judicial Edicts Forms and Orders assumes the Legislative Power notwithstanding and above Acts of Parliament to dispose of the Subject's Liberty and Propriety at pleasure yet this have Chancellours done Forming divers Writs in the Register out of their own Heads Lamb. Archeion which always are Formed for the greatest Profit of the Clerks and Courts which make them and not of the People and Episcopal Chancellours have so far in time of Popery deceived Parliaments that Westm 2. cap. 24. gives the Clerks of the Chancery as good as Power to make what Writs they will and the pretence is insinuated by the Clerks De caetero non recedant querentes à cur ' Regis sine remedio or Ne Curia Regis desiceret in Justitia exhibenda whereas none who understands the least part of the Forms of Judicial Proceeding there is who doth not know that the Kings Court if he please may do far better Justice if all the new Writs made by Clerks and all the old Writs in the Register were made a Bonfire all together and none but Copies of Declaaations served without them then 't is possible to do with them which Del gation of Power to Clerks to make Writs must be void for the making of Forms of Writs Edicts or Orders is an Act of Legislation and to give Votes in Legislation is a Personal Office of Trust reposed by the People in their Representative Elected by them and by the known Law no Office of Trust can be Assigned Granted over or Delegated if the Parliament therefore please to enact themselves any Judicial Forms or Orders of Proceeding they ought to be obeyed as Laws but it would be a great injury to the People if they should Grant over the Office of Trust in them to a Chancellour and Clerks never Elected or Intrusted by the People Chancellour of England or Scotland no Pretor Let a French Chancellour be therefore what he will 't is clear no English Chancellour ought to be a Pretor Judg of Equity maker of Laws Edicts Forms or Orders of Judicial Proceeding nor any Chancellour of Scotland the full of the matters of both whose Offices though they may differ
Moral Law of God of Truth and Equity neither if these Writs were Formed according to the Truth and Equity of the Moral Law of God is it possible a sufficient number should be Formed for Writs are finite and Cases of Equity infinite and not to be put in Writs or written except by God in the Fleshly Tables of the Heart and in the Spiritual Tables of the Soul it self and Conscience It will be asked How could they subsist before H. 6. without a Sub paena and Equity from a Chancellour seeing the Common Law Writs could not supply it and what expedient is there now how Equity may be supplied To which I answer That Equity was then supplied by the Writ of Right and Justicies the Titles of both which Writs signifie Equity and likewise other Writs and the General Issues Formed on them of the Meer Right Not Guilty Null Tort Null dissersint Nihil debet guided the Jury to find according to Right and Equity by the Moral Law of God and not the Ceremonial Law of Man till the Judges to wrest the Power belonging to Jurors into their own hands brought in the Tender of the Demy mark to turn the Issue of meer Right into a Possessary Issue and instead of Truth brought in the Pictions of Colours destroyed the Justicies by Writs of Remover gave way to false Laying of Counties in Transitory Actions changed Venues granted new Trials abated Declarations for Variance from the Bond and not Sueing for what was paid as well as for what was not granting Arrests of Judgment after Verdict and not permitting to demur first to the Law and after to plead to the Fact before Verdict prohibited on the Issue Not Guilty matters of Justification to be given in Evidence admitted Demurs to Evidence admitted special Verdicts caused Juries to be of an even and not of an odd number and the Verdict not to be according to the Plurality of Votes and many other ways they had to weary Juries from giving a Verdict according to Conscience and Equity or when they had so given it to same I conclude therefore to compell men to Commence Suites by Writs in the present Age is to condemn them without Hearing of the Equity and Merits of their Cause and to compell them to revive again those Ancient Writs and trie Equity by Juries hath many great inconveniences before mention'd to be incident to all Writs especially such as are Antiquated and not understood but all these mischiefs are salved by Commencing Suites by a Copy of the Declaration Sworn in stead of a Writ which cannot be Sworn and a Judg Commissionated with Jurisdiction of Fact Law and Equity under Appeal which single Judg in a Court by himself sitting without Vacation as a Chancellour hath Power to do will no doubt be able to dispatch more Causes without troubling any Writs Juries or Councel at the Bar and more justly and under Account in one Year then 't is possible for any Chancellour with Plurality of Offices or Court with Plurality of Judges Juries and Councel at the Bar to do in Seven 6. Men are condemned before Hearing on the Capias Vtlagatum and Excommunicato Capiendo A Satyr on a Papist and a Protestant Imprison'd one on an Outlawry the other on an Excommunicato Capiendo against Imprisonment before Hearing A Papist and a Protestant Who used when they met to Rant About the Altar and the Rail Were both together Clapt in Gaol The first was catch'd by an Outlawry The last whose Conscience did vary From Bishops and their Common Prayer As Felon or a false Betrayer Was therefore Excommunicate And put to beg within a Grate Pap. Brother then quoth the Papist sad Are Protestants too grown so mad To have an Inquisition here Who thus can though no cause appear Forfeit our Goods and Selves at will In Prisons cold to starve and kill Before they Hear us doest not know Amongst our selves it is not so Who by Experience wiser grown Will Inquisition now have none Witness the Rich Venetian And wary Dutch who late began For Liberty against such Lords And Swisse with their two handed Swords For this Proud Aragon Rebell d And Naples Silk-men hardly quell'd And many more abhor'd such Tricks Yet are they all good Catholicks So Holland justly now prevents Imprisonment of Innocents And makes to help the Poor opprest Before a Judgment no Arrest Is this the Charta and of Right Petition for which you fight That every ' Torney and his Clerk Who use to live upon the shark Forge all the Outlawries they please Remedies worse than the Disease And that Poor men may be betray'd First Forge the County where 't is laid They Forge and Antedate the Writs Of Parchment cut in little Bits Then next they Forge the Sheriffs name And Forge Returns upon the same They Proclamations Forge and Feign And Exigends next without pain And all this Knavery you may spie Page Sixth of the Academy Which is their Mother and their Nurse Teachers to Forge and Steal of course Such Clerks deserve hanged to be As Nicholas Clerks upon a Tree And thus though made them to prevent They fool all Acts of Parliament For no Averment must deny The Shrieve or Clerk although they lie Is this the Liberty so proud You use to cry it up aloud And Property you so much Vant That every Papist it doth want What Purgatory can you tell Is worse than this on Earth your Hell Or what Hell is there more worth fearing Than Your Damnation without Hearing He neither shews me Time or Place Nor Witnesses brought Face to Face My Goods are all Confiscated My very Wives and Children's Bed The Bailies Seised without account Of Price to what they did amount Or Witness Writings Boxes Chest And Money too on a Suggest And Lies and Fictions in worse case I am than Felons in this Place Their Goods although the Law is strict Not Forfeit are until Convict But left to feed them Oh the blest Justice is shewn to men distrest By Protestants who only you Say have the Religion true But Christ says Know them by their Works Which shews you worse than Jews or Turks I have not left a Bit of Bread Witness these unfeign'd Tears I shed The Plaintiff asks of me a Sum As at the Dreadful Day of Doom I answer shall and God doth know I do not him a Farthing ow Yet can I not although I try Be brought to answer or deny His Forged Stuff or see the Face Of Judg or Jury on the Place But here to perish am designed And to this Dungeon confined Unless I give what e're he 'l ask This is my miserable Task I think you now turn Witches too The Rogues the mischief who did do To bring me here sure had a Spell What Language 't was I cannot tell 'T was written in a little scrow Half-words and dash't that none might know Or ratâ—er scratch'd it was in Soot With Devils Claw or Cloven Foot Prot.
with them and were indeed a most imperfect constitution of Defensors of Liberties against Senators permitted to be Hereditary and was no way to be remedied unless the People had taken on them the Election of the Senators as is now done by such Nations as have the Liberty of Parliaments but if Two dissentient Negatives or Houses or Parliaments are joined together in one House where the matter is to be carried by Plurality of Votes there dissentient opinions of the several Members are so far from hurting the Publick as they do the same much Good First by the contrary Dispute of the Question the Truth is the better understood Secondly When two Extremes contend they commonly moderate one another and produce a more temperate Sentence than if the whole Senate were all of the same mind without any Faction so as long as Cato and Caesar made Orations one against the opinions of the other in the Senate it mitigated them to moderation and it was the Contention in the Field and not in the Senate caused so much mischief to the Publick which could not be avoided in such a Senate which was no equal Representative Elected by the People but some Senators so disproportionable in Power as Caesar and Pompey were to the rest Strength of Union 13. Though Confederacy of Foreign Princes ought not to be neglected yet the Confederacy of the Three Parliaments by Union in one House is a far greater assistance than of any Three Foreign Princes Confederated and living in Foreign Palaces and such Three Protestant Parliaments in one House and under one Protestant King are by Gods help of greater Strength and Councel than any Three Catholick Kings and the Pope with them if they should wrongfully confederate against the Protestant Examples of Un on of Parliaments 14. All these and no question more dangers of Disunion and Benefits of the Union of Parliaments were foreseen to the Wisdom of King James of famous memory and how zealously the desire of such an Union was press'd on him by him between England and Scotland appears by the Act 1. Jac. cap. 1 2. And thereby Commissioners of each Nation were appointed to meet and Treat and to reduce their Dâ—ings therein to Writings or Instruments Tripartite every part to be subscribed and sealed by them and one part to be deliver'd to the King the other to the Parliament of England the other to the Parliament of Scotland this was promoted several times in the House and vigorously Seconded by many Noble Protestant-Patriots after which as appears Coke 4th part 347. there started a question amongst the Commissioners whether there could be made a new Kingdom of Great Britain before there was made an Union of Laws which Question was by Command of the King refer'd to all the Judges of England in Trinity Term Anno 2. Jac. who unanimously Resolved Coke being then Attorney General That Anglia had Laws and Scotia had Laws A ridiculous Answer of Judges touching Union of Kingdoms but this new Erected Kingdom of Britannia had no Laws and therefore where the Forms of all Judicial Proceedings of England are Secundum Legem consuetudinem Angliae it could not be alter'd Secundum Legem consuetudinem Britanniae an Answer fitter for Protonotaries than Judges as if no Union were possible to be made of Kingdoms but by Rastall's Book of Entries whereas one word of a Nuper would have salved this horrible objection and but two lines of a Proviso in the Act of Union might have made the Style of their Formality what they would have had it but this unlucky Pedantry of Theirs was a fatal Scourge to Great Britain for in all humane probabilities if there had been then made an Union of Parliament the late Bloody Intestin Wars had never been 3. Jac. cap. 3. A Recital is made of the long and worthy Labours of the Commissioners of England and Scotland and how albeit all things had been by them fully and effectually pursued and accomplished c. Yet for that divers other matters required present Dispatch by the Parliament and the matters concerning the Union might be consider'd as well any other Session therefore the same was defer'd for that time Anno 4. Jac. 1. An Act is made for Repealing certain Acts of Hostility in former Ages made between the two Nations where the Commissioners lost all the Pains they had taken to the discouragement of any other who should thereafter attempt the like so by the Power and Subtlety of the Popish Episcopal Party and Lawyers all whose Interests a Reformation of Laws for Britannia would have crossed the whole business and Attempts of Union have been ever since obstâ—ncted As for Examples In former Histories we find none more free than the Romans to Naturalize their Associates and to make the Natives of the Provinces Citizens of Rome The Grand Seignior takes into his Council the Natives of several Kingdoms yea though Christians when once Educated in his Religion The several States of Greece had not been able to have subsisted against the Persian had they not United themselves in one common Council of State though their Laws and Commonwealths remained several The Netherlands had been never able to have subsisted against the Spaniard had not the Provinces been United in one Staadt-House and Common Council yet is not that Union perfect they remaining still under several Laws and Customs and in the nature of several Commonwealths and therefore not impossible to be again divided as the Grecian States thereby were So were it impâ—ssible for the German Empire to subsist against the Turk were they not United in one Supreme Dyet and Common Councli for a Parliament of Kings in person as the Electors are in Power is better than none at all and better than a Confederacy of Kings by Proxies they remaining in their several Palaces yet in many other respects the Union being of the Prelates and Princes and not of an equal Representative of the People it is liable to perpetual dangers of Civil Wars and the Dividing of one Prince against another who may perhaps as the Captains of Alexander the Great and the Italian Princes in the end set up every one for himself there being nothing to hinder but the Terror of the Neighbouring Turk whereas if the Union were constituted of an Emperor and Parliament equally Elected by the People the Empire were invincible for the Prince were then but one and the Senate but one but this is impossible to be performed except in Protestant Dominions for then must the Pope and Prelates be Cashier'd which no Catholick Prince can or dare attempt How great thanks do we therefore owe to God who hath vouchsafed Protestants so great a Privilege to Unite all their Parliaments if they in blindness and stubborness neglect or resuse not so great a Mercy as perhaps may not again be so easily offer'd The Cantons of the Swiss could not subsist without being United in a Common Council
for State-Assairs So of the Grisons Yet do the Cantons remain in the nature of several Commonwealths with several Laws and Customs which Union is very imperfect Livy lib. 2. complains of this defect of Union of Councils in Rome and saith Profecto si essent in Republica Magistratus nullum futurum fuisse Romae nisi publicum consilium nunc in mille Curias Concionesque cum alia in Esquiliis alia in Aventino fiant Concilia dispersam dissipatam esse Rempublicam And by this doth Tacitus confess it was that Rome Conquer'd Great Britain Nec aliud adversus validissimas gentes pro nobis utilius quà m quod in commune non consulunt rarus duabus tribusque Civitatibus ad propulsandum commune periculum conventus ita dum singuli pugnant Vniversi vincuntur Neither saith he was there any thing so profitable for us against the most valiant Nations as that they had no Common Council a rare matter it was amongst them to have a Convention of Two or Three Cities against the common danger so while they every one fought single they are all Conquer'd Whereas if Great Britain had been then united under one King and one Parliament of the whole Island they perhaps might have as well said of his second Landing as of his first Territa quaesitis ostendit terga Britannis So doth Justin mention of the States of Greece every one of them had at last their Councils apart and fought single whereby one after another they were all overthrown What hath United the Heptarchy of the Saxons and the mixture of Danes inseparably but the equal Mission of their Representatives to the same Parliament and what did Unite the Noble Remainder of Britains to England but the Statute of 27. H. 8.26 Enacting That all Persons born in Wales should enjoy all Liberties Privileges and Laws as other Subjects in England do and should send their Knights and Burgesses to the same Parliament with them The Glory of a King is the multitude of his People and what more Glorious for a King who hath the Royal English Scotish Irish and British Blood United in him who is the Head than to have the same United in his Parliament who is the Body Let it not offend if I mention here the late Experience of Union of the Three Parliaments in one House by the late Usurper seeing we are commanded to learn Wisdom though from the Serpent and if he under so great disadvantages of Opposition made great Benefit the lawful Prince may make far greater thereby and his Subjects likewise by his Favour participate of the same I cannot deny that it was my Fortune though I never sought it to be chosen for a County and to serve in that great Convention at Westminster Anno 1656. called then a Parliament wherein the Parliaments of England Scotland and Ireland were Convened and United in One with the same facility as they are Convened to sit in Three Places and there being then a War designed against Spain it was wonderful to see with what Expedition and Courage all things were moved towards the Design and what an Endearment it was between the Three Nations to meet be acquainted eat drink and converse together about the Common Concernments Having consider'd so far of the great Benefits of an Union of the Three Parliaments of the Three Kingdoms in One it may not be amiss next to consider the Requisits necessary to perfect the same 1. Whether an Union of Crowns be necessary to perfect an Union of Parliaments and Kingdoms It seems for the Affirmative 1. Because where the Natural Person of a King is One if the Politick Person or Capacity is not made One the one Politick Capacity may be divided against the other in the same Natural Person as on the Succession of King James to Queen Elizabeth the Queen of England had declared War against the King of Spain the King of Scotland was in Peace with them so in the diverse Rights of Two Crowns there was War and Peace at one time between the same Persons the like Doubts may arise Whether the Royal Assent may pass contrary Politicks Acts and Laws in the Parliament of one Nation to what he hath pass'd in the other in reference to the contrary Rights of each Crown Whereas if both are consolidated and made one no contrariety of Acts can happen 2. It is as dangerous to have Two Crowns as Two Marble-Chairs for they may be kept in several places and the more easily may an Usurper happen on the possession of one of them and the Vulgar be deluded to think Possession of those Signs of Supreme Honor to be equal to the Right and besides that a Fatality will follow them 3. Seeing it hath pleased God to make the Head of the Three Kingdoms One men ought to follow his Example and make the Crowns One 4. The continuance of several Crowns is apt to continue a perpetual memory of Hostilities between the Kingdoms 2. Whether an Unity of Protestant Churches is necessary to an Union of Protestant-Kingdoms It seems for the Affirmative Because if Protestant-Churches divide one against another the Kingdoms will be a Prey to the Papist and the Protestant will have none to Unite 3. Whether permission of Protestants to Excommunicate Protestants is consistent with the Unity of Protestant-Churches Neg. If the Pope Excommunicate Protestants it Unites them the firmer but if they Excommunicate one another they denounce War and destroy one another with their own hands and leave the Spoils to be divided by the Pope An Elegy on Protestants in the late Civil Wars Excommunicating Protestants LVgeat in trisidis jam moesta Britannia flammis Et doleat jam fulminibus percussa trisulcis Intonuit falsus nebulosa Tibride Petrus Et Magicis stolidum perterruit Artibus Orbem Piscator Twedae retonat multisque cachinnis Rupibus ingeminans sua fulmina misit ab Altis Becketi Lemures contra hunc torsere minaces A Thamisi gelidas Vulcania tela per auras Heu non Oceanus circum vaga Littora fusus Nec freta compescant tantis ardoribus ignes Risit Romanus Tarpeia Rupe Tyrannus Cumque suis inquit sese immisere Gebennis Pontifices Britonum per mutua vulnera tandem Ne sic deficerent inferno gurgite flammae Ipse super terram viventes igne cremabo Ecce jocum mintrat mus rodens Rana coaxat Et cum limosis ineunt certamina juncis Milvus spemque suam motis circumvolat alis Ipse paludosam sic vellem carpere Ranam Et sic ridiculum vellem discerpere Murem Englished LET Britain mourn who burns in triple Fires And struck with threefold Thunder-bolts expires A Peter false from Tyber in a Cloud By Magick Art did Thunder it aloud The Fisher-man of Tweed with many Mocks Return'd his Thunder double from the Rocks Proud Beckets Ghost ' gainst him from Thames broke forth And with Vulcanian Darts fired the North. What Ocean which her wandring Shores doth drench Or
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-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
take any Oath unless it be only in Cases Matrimonial or Testamentary But whereas also by a certain Act in Parliament began and holden at Westminster the 8th Day of May in the 13th Year of our Reign and there continued till Wednesday the 30th Day of July in the 13th Year of our Reign afâ—resaid and from the same Day the Parliament Adjourned till the 20th Day of November then next following amongst other things it was Enacted by the Authority of the said Parliament That it should not be lawful for any Arch-Bishop Bishop Vicar General Chancellor Commissary or any other Spiritual or Ecclesiastical Jurisdiction to offer tender or administer to any Person whatsoever the Oath usually called the Oath Ex Officio or any other Oath by which such Person to whom it may be offered or administred might be burdened or compelled to confess or accuse him or her self of any Criminal matter or thing whereby he or she might be burdened with any Censures or Punishments as in the said Act amongst other things it is more fully contained Yet you the aforesaid Bishop after the Coming forth of this Act viz. the 23d Day of July in the 27th Year of our Reign in no wise regarding the said Law and Statute at Chichester in the County of Sussex did offer and tender unto the said Thomas Watersfield being then Church-Wapden of the Parish Church of Arundel in the said County of Sussex a certain illegal Oath Ex Officio to be performed by the said Thomas Watersfield in a Cause neither Matrimonial nor Testamentary by which the said Thomas Watersfield might be forced to accuse himself of divers matters Criminal and with which he might be Burdened with divers Punishments and Censures Ecclesiastical In which Oath as it was then tendered the said Thomas Watersfield should with his utmost Diligence Present every Person which then or lately was Inhabiting within the said Parish of Arundel who hath done any offence or neglected any Duty mentionâ—d in certain Articles contained in a certain Printed Book which Book was then and there shewn by you the said Bishop to the said Thomas Watersfield and the said Thomas Watersfield doth Aver at the time of the Tendering of the said Oath and before and afterwards ever since and hitherto That he hath dwelt and been Resident in Arundel aforesaid and that in the said Printed Book at the said time that the said Oath was tendered to be performed there was contained amongst other thâ—ngs this Question viz. Whether every Person Inhabiting or Sojourning within the Parish of Arundel aforesaid did daily resort every Lords-day and Festival appointed for Divine Service to the Church and whether they did there remain the whole time of Divine Service quietly with Reverence Order and Decency and whether Church wardens and Officers called Sides-men did observe those which came late after the beginning of Divine Service or went away before the end of the same and whether they did suffer some to stand idle or to talk in the Church-Porch or to walk in the Church-Yard during the time of Prayer and Preaching or other Sacred Duties And forasmuch as the said Thomas Watersfield did then and there refuse to take the said Oath you the aforesaid Bishop did pronounce the Sentence of Excommunication upon him afterwards that is to say upon the 23d Day of July in the 27th Year of our Reign aforesaid at Chichester aforesaid In Contempt of Us and the manifest Damage Prejudice and Impoverishment of the said Thomas Watersfield and against the Form and Effect of the said Statute and the Common Law of this Our Realm of England And whereas such Pleas by the Laws of England of Right belong to Us and not to You We therefore being willing to maintain the Laws of our Crown and the Law and Custom aforesaid as by the Bond of our Oath we are bound to do We forbid you firmly enjoining you not to intermeddle or hold before you the said Bishop the Plea and Sentence aforesaid as to any Answers in the said Articles concerning the said Thomas Watersfield or any thing from thence attempted But that you Release and Dissolve all Decrees and Sentences if any be against the said Thomas Watersfield by reason of the said Fulmination And that you do absolutely Release him the said Thomas Watersfield from all Decrees and Sentences upon occasion of the said Fulmination Teste at Westminster the 6th Day of May in the 28th Year of Our Reign Wurley The Suggestion on which this Prohibition is granted remains Recorded in the said Court of Common-Pleas in Mr. Wurley's Office Roll 551. Excommunicators Murderers John Hus and Jerome of Prague held That Priests ought to Preach notwithstanding Excommunication That Bishops were Murderers for delivering men over to the Lay-power for Disobeying them That such Excommunication was a humane Invention to maintain the Pride and Cruelty of the Clergy And were Martyr'd for this and other Truths The King shall be forced to Execute every Decree of the Pope or Priests with the Temporal Sword though contrary to his Conscience otherwise he shall be Censur'd if obstinate not worthy to hold his Crown Sheriff of Englands Oath The Sheriffs of England are compell'd to be Sworn to Assist and Execute all the Commands of Bishops not excepting against the King himself which is a most wicked Oath to be suffer'd For though it doth not Swear in express words to give the Supremacy of the Temporal Sword to this Spiritual Sword of Excommunication that the Priests were too subtle to have appear openly in their Form Excommunicators Usurp Supremacy yet doth it require him to Swear what is Aequipollent to assist and maintain the Bishops and Commissioners of the Holy Church as often as by them requirâ—d whereby their Spiritual Sword is made the Imperant and the King 's Temporal Sword the Obedient The Imperant hath Supremacy over the Obedient as it is said Rom. 6 16. Know ye not to whom ye yeild your selves Servants to Obey his Servants ye are to whom ye Obey Shall the Sheriff therefore be compell'd to be a Traitor to deliver the Temporal Sword intrusted in his hand by the King to those who assume that Luciferian Title of the Holy-Church to be Supreme above the King which is point-blank contrary to his Oath of Supremacy which obliges him to suppress with it such a Rebellious Pride to the utmost of his Power The Sheriff is likewise by the Law of Scotland to do Execution on Excommunicate Persons as appears Skene de verb. signif tit Schiriff Sheriff of Scotland whose words are The Sheriff shall take and apprehend all Cursed and Excommunicate Persons at the desire of the Bishop or his Official and put them in Prison untill they satisfie God and the Kirk Stat. 2. Reb. Br. specially them quhahes remained under the Censure of Excommunication by the space of Forty Days Quon Attach Rextali 76. And by Ja. 2. P. 4. cap. 7. it is Enacted That
nane against quhome the Process beis led be received in the Kings Castle or Place or in his Presence nor admitted to Councel or Parliament heard nor answer'd in the Law of Judgment of Fee and Heritage or uther Causes bot ever Eschewed as Cursed unto the time the said Persons cum to amendis and assyith the Party and obteine Absolution in Form of Law And Jac. 6. p. 3. cap. 53. in the Kings Minority an Act was got by the Kirk ' That all Excommunicate Persons not Conforming ' in Forty Days should be denounced Rebels and put to the Horn. The English Commissioners in the said late time of the Troubles had Instructions to take from the then Kirk such Letters of Horning and not to assist any Excommunication with the Temporal Sword which we performed accordingly The King of Spain joined with Tyrone and the Rebels in Ireland against Queen Elizabeth And Don John de Aquila Landing in Ireland with 4000 Spaniards intitled himself Master-General and Captain of the Catholick King in the Wars of God for holding and keeping the Faith in Ireland only on pretence of Excommunication Sextus Quintus the Pope of Rome on the Invasion prepared by Spain against England Anno 1588. sent out his Crusado as if against the Turks and having pass'd Sentence of Excommunication and Deprivation by his Bulls against Queen Elizabeth promising Pardon of Sins Heaven and Eternal Life to all who di'd in the Invasion 1. To grant a Pope or a Bishop Power to Excommunicate Protestant-Subjects is to grant him Power to Excommunicate Protestant-Kings 2. To grant him Power to Excommunicate Protestant-Kings is to grant him Power to Levy Money Raise Soldiers Denounce War and Depose them 3. Of the Dilemma of Danger threatning Princes who seek Security of Goverement from the Excommunication of Popes or Bishops either over a People Religious or Superstitious 4. Of the Impossibility of Security for Princes unless their Subjects are Educated or Instructed to be free from the Superstition of Excommunication and to contemn it 5. Of the Impossibility of obliging Popes or Bishops either by Benefits or Oaths Excommunication is as Proscription made a pretetence of Confiscation without shewing cause The Romans saith Aman. Marcellus proscribed Ptolomy the then King of Cyprus being their Confederate for no fault only they wanted Money in the Treasury who therefore poison'd himself and the Isle became Tributary to the Romans In the like manner do Popes and Bishop fall on the Richest with their Excommunication to fill their empty Purses Pope Gregory the Tenth Commanded Percham Arch-Bishop of Canterbury to pay him Four Thousand Marks within Four Months on pain of Excommunication So Excommunication is a ready way to Levy Money for War Anno 1230. The Pope having Excommunicated the Emperor the Emperor was fain to pay for his Absolution an Hundred and Twenty Thousand Ounces of Gold Plat. Nam Anno 1231. The Emperor for memory of this hard Penny-worth for his Absolution put into a Pool at Helbrand divers Pikes and other Fishes with Brass Rings having Inscriptions of his name and the Year of the Lord one of the Fishes was taken up 267. Years after Ann. Suev Calv. Henry the Second after that Traitor Beckett the then Arch-Bishop of Canterbury had been Slain though not by the Kings Command was enjoined amongst other things this Slavish Penance He walked Three Miles bare-foot on the sharp Stones that he at length had so cut his Feet they marked the ground with Blood every step he went And after this which was worse than Running the Gantilope he Received of the Priests Monks Bishops and Abbots on his naked Flesh so many Jerks with Rods Oh brave Pedants and Pontifical Government for Princes as according to Baronius amounted to at least Fourscore Lashes which doubtless was the Number the Jew administred to the vilest Rogues lest their Brothers should be despised in their Eyes and not heard to have been Exercised in their Eyes and not heard to have been Exercised on the Priests Bishops and Abbots themselves though they kill'd and murder'd many Lay-men without Law or Justice they incur'd only a deprivation and instead of Hanging which they deserved sometimes no more than a suspension Temporary ab Officio In the time of King John Anno 1211. The Pope Excommunicated him and gave the Kingdom of England to the King of France Paris Wend. The Pope Excommunicated Henry the Eighth and gave the Kingdom Primo Occupanti Queen Elizabeth was Excommunicated by Three Popes Pius Quintus Gregory the Thirteenth and Sextus Quintus Anno 1308. The Pope Excommunicateth Andronicus Emperor of the East and setteth up the King of Russia against him Bzou So he dealt alike with the East and Western Emperors Excommunications have brought the Venetians to extreme Straights formerly therefore they are yet no Friends of it Dandalus Duke of Venice was compell'd by Pope Clement the Fifth to Crouch under the Table Chain'd like a Dog before he could obtain Peace for the Venetians The Pope Excommunicated John King of Navar and Granted his Kingdom to the Spaniards Nicephorus Phocas Emperor of the East was Excommunicated by Polyeuchus then Patriarch of Constantinople because he had been God-father to a Child of Theophania Wife to his Predecessor and after his Predecessor's Death Married her Pope Zachary deposed Chilperick the French King and gave the Crown of France to Pepin The two French Kings H. 3. and H. 4. who were Assassinated had great Guards whereby it appears though Princes may secure themselves in Vaults and Caves from Thunderbolts yet can they not against the Bishops of Romes Ignis Fatuus of Excommunication but that to Assault them Per medios ire Satellites Et perrumpere amat saxa potentius Ictu fulmineo Eight Emperors were Excommunicated by Popes who were these Frederick the First Frederick the Second Philip Conrad Otho the Fourth Lewes of Bavaria Henry the Fourth and Henry the Fifth The Emperor Henry the Fourth Fought in Threescore and Two several Battles and had for the most part Victory he was Excommunicated by the Pope and to obtain his Absolution came Three Days together bare-foot to the Gates of the City Canusium where the Pope then was and with much difficulty obtain'd it The Catholick Majesties of Spain cannot secure themselves from Excommunication without Money nor their great Vice-Roys in America for a Rebellion was Raised in Mexico by the Arch-Bishop there Excommunicating the Governors the People by Superstitious Episcopal Education made more afraid of the Counterfeit Power of the Keys than of the true Power of the Sword and will side in Rebellion with the Bishop against the Secular Governor men may talk therefore and believe what they please that the Supremacy of the Temporal Sword is Consistent with the Spiritual of Excommunication but when it comes to Trial amongst a Superstitious People they will be very much deceived and perhaps Ruin'd Bzovius de Pont. Roman 611 612. to maintain the Power That the Popes may depose Kings
withal Threatens a Proceeding against his Person Becket thereupon flies the Realm and appeals to the Pope and procures an Excommunication from the Pope of such Bishops as kept not their Oath of Canonical Obedience to him who was their Arch-Bishop The King of France Intercedes for Becket and the Pope Threatned Excommunication against the King himself if he Restored him not The King out of a Superstitious Fear of his Excommunication as appears by his Receiving afterward the Servile Penance imposed on him for Becket's death Restores Becket again to his See of Canterbury whither again arrived he continued notwithstanding the favour of the Kings Restauration as bad as before in Prosecuting his Excommunications he had got at Rome against such Bishops as sided with the King of which when the Excommunicated Bishops complained to the King and moved thereby his Passion He cried out Shall I never be quiet for this Priest if I had any about me that lov'd me they would find some way or other to Rid me of this trouble Whereupon Four Knights standing by took their Journey to find the Arch-Bishop whom they found at Church on the steps where they strook him on the Head with their Swords and killed him which though in the manner of doing it was no way Justifiable being without lawful Hearing and Trial Yet 't is very manifest that the Arch-Bishop by the Common Law it self without the trouble of an Attainder by Parliament might have been proceeded against Legally by Indictment of High-Treason and he was manifestly Guilty for it was by the Common Law High-Treason to appeal to a Foreign Prince And likewise for any Subject to bring an Excommunication from Rome against another Subject without the Kings Assent was Treason for this was the ready way to give the Pope Power to Raise Rebellions against the King when he pleased Bishops Traitors to King John The Bishops in the time of King John Conspired with the Pope and the French and the Temporal Barons and the Pope laid an Interdiction or Excommunication on the Kingdom for Six Years Three Months and Fourteen Days during which the Church Doors were shut up and there was neither Exercise of Religion Mass Marriage Baptism or Burial allowed in the Church or Church-Yard 'till the King would Surrender his Crown and take the Kingdom from the Pope and hold it Feudatory from him which the King was by the Treachery of his Bishops deserting him compell'd to do and accordingly he took off the Crown from his Head and laid it at the Feet of Pandulphus the Popes Legate the Pope to dispose of it how he pleased which he kept Three or Four Days from him and would not Restore again but on condition agreed That he and his Successors should hold it of the Pope and pay him for it the Yearly Tribute of a Thousand Marks which was a great Sum in those days besides all the other Tributes and Exactions which the Pope then had from the Subjects but this the King was fain to do before the Excommunication would be taken off from him and his Kingdom which being done and be perceiving himself clear from the Pope Resolved to Raise an Army and be Revenged on the French King whose Pensions had set all this on work against him and accordingly had Levied a very great Army having his Fleet all ready at Portsmouth to have Shipt them The Arch-Bishop of Canterbury thereupon told him He broke his Oath to the Pope at his Absolution if he Warr'd against the French King which in truth the Bishops had themselves by their Treason compell'd Him to To whom the King Replied in a great Passion That he would not defer the Business for his pleasure seeing Lay-Judgment belonged not to him The Arch-Bishop Threatned his Native Sovereign he would Excommunicate him unless he desisted and this was in behalf of a Foreign Prince his Enemy So far could French Pensions prevail with Prelats whereby the King to his great loss was enforced to Dissolve and Disband again his Army in the nick of Time when it was ready for Action Henry the Third the Tempest of the Barons-Wars beginning to Threaten him was asked by Robert Bacon a Frier Predicant What Sea-men feared most that they knew best themselves The Frier Replied My Lard I will tell you It is Petrae Rupes alluding to Petrus de Rupibus The name of the then Bishop of Winchester and under him meaning the whole Body of the Bishops Edward the First that wise and valiant Prince disdaining to be Priest-Ridden as his two Predecessors had been to so great danger of their Persons and Kingdoms and taught by their Experience that it was in vain to think of obliging by Benefits or Oath the Power of those who being a Body United and as it were an Army more firmly Banded under their Arch-Bishop than 't was possible to make the Lay-Nobility to be under their King he began first to Lop off from their Ecclesiastical Auxiliaries such Branches of Royal Power as he could do himself without a Parliament and Anno Reg. 6. Deprived many famous Monasteries of England of their Privileges and took from the Abbot and Covent of Westminster the Return of Writs granted them by the Charter of Henry the third And after he got to be Inacted by Parliament the Statute of Mortmaine against the so enormous Increase of their Temporal Possessions which was so detrimental to the Military Service of the Kingdom and in the Statute of Westminster 2. defalked the Jurisdiction of Bishops and Ecclesiastical Judges He left not here but growing more upon them he Required the Moiety of all their Goods as well Spiritual as Temporal for one year and I think their money and moveables could grow no more the next year which he took in one year And at the first one Sr. John Knight stands up amongst them in their assembly and said Reverend Fathers if any here will Contradict the King's Demand in this Business let him stand out in the midest of this Assembly that his person may be known and seen as one Guilty of the Breach of the King's Peace At which speech they all sate mute and though it put them into Extreme grief and perplexity they yet were fain to yield to his demand Dan. Hist Which if he had been possessed with a dastardly fear of Excommunication he had no more dared to do than his Predecessors Yet some say to be able to deal with his own Bishops he was fain to send the Pope a Furnish of gold for his Chamber to have his Connivence Edward the second Anno Regni 17 after the Overthrow he Received by the Treachery of his own in Scotland Bishops Traitors to E. 2. Caused the Bishop of Hereford to be Arrested and Accused of High treason for aiding the Kings Enemies in their Late Rebellion but he Refused to Answer being a Consecrated Bishop without leave of the Arch-Bishop of Canterbury whose Suffragan he was and who he said was
John Stratford Arch-Bishop of Canterbury on whom the King likewise laid the blame of his Wants writes a proud Letter to the King and desired him and his Council without delay to deliver the said Prisoners otherwise he plainly writes That according to his Pastoral Charge he must proceed to the Execution of the Sentence of Excommunication concluding how notwithstanding it was not his Intention to include the King Queen or their Children so far as by Law they might be Excused It was well for the King he was in the head of a brave Army in France for if he had been single as his Father was they who durst Menace him amongst all his Forces in the Field if he had lost the Day as his Father did were as likely to bring him for a French Pension to as miserable a destruction as they brought his Father but by Gods Providence he proved afterward Victorious but first Replied by another Letter to the Arch-Bishop That Relying on his Council he was first put on the Action of the French and that he had promised and assured him he should not want Treasure to perform the work and that notwithstanding by the negligence and malice of the said Arch-Bishop and his Officials those Provisions Granted him by his Subjects in Parliament were in so slender proportion Levyed and with such delays sent over as he was pressed of necessity to his great Grief and Shame to Condescend to the late Truce with the French though extreme Wants charged with mighty Debts forced him to throw himself into the Gulf of the Usurers in such sort as he began to look into the Dealing of his Officers some of which upon apparant notice of their ill Administration of Justice their Corruptions and Oppressions of his Subjects he removed from their Places and others of mean Degree he Committed to Prison and there detained them to the end he might find out by their Examinations the truth of their Proceedings Then he charges the Arch-Bishop with his own Corruption and declares how himself being under Age had through his ill Council made so many Prodigal Donatives prohibited Alienations and excessive Grants and Gifts that thereby his Treasury was utterly Exhausted and his Revenues diminished and how the Arch-Bishop corrupted with Bribes Remitted without reasonable cause great Sums which were due unto him applying to his own Use or Persons ill deserving many Commodities and Revenues which should have been preserved for his necessary Provisions and concluded Unless he desisted from his Rebellious obstinacy he intended in due time and place more openly to proceed against him and the King before the Arch-Bishop Submitted caused a Letter to be sent to the Pope from the Parliament not to make any more Collations of Benefices in England and prohibited them on pain of Death on any that should present or admit them which Resolute slighting of Excommunication both from Arch-Bishop and Pope though in the very time of War with France made the Pride of the Arch-Bishop stoop and with much ado got himself Reconciled to the Kings favour for which the King was bound to thank God and not the Pope or Bishop who gave him that Victory and Success against the French as neither Pope or Arch-Bishop dared to Excommunicate him Against Richard the Second one of the Articles brought against him to have him deposed was That whereas the Realm is immediately holden of God after he had obtained divers Acts for his own particular Ends he obtained Bulls heavy Censures from Rome to observe and perform them contrary to the Honour and ancient Privilege of this Kingdom whereby appears That even in a time of Popery the Assistance of the Pope and Bishops which were included in it was so far from being a Protection to the King that it was Destructive to him much more is the Assistance of Bishops likely to be Destructive rather than a Safety in a time of Protestancy The Bishop likewise Concurr'd with the rest and accused him That he had taken Money Jewels and Plate from them at his going into Ireland Bishops accuse R. 2. for Trifles to Depose him so far were they from seeking to preserve the Kings Life with those Superfluities of theirs where they could keep them and their Bishopricks together that they shewed their Fidelity to their Native King by endeavouring to destroy him For such Trifles divers other Articles were laid against him in behalf of the Bishops by whose doing only the King was utterly undone Truss 46. And not one of all the Bishops in England or Ireland spoke so much as one word to preserve their Native Sovereigns Life but only one namely Thomas Mercks Bishop of Carlisle Dilemma of danger from Excommunication As to the Dilemma a Prince falls under in expecting safety of Government from the Power of Excommunication of Popes or Bishops either the greater part of his Subjects will be Religious or Superstitious if Religious they will so easily see through the Superstition of Consecration and Excommunication as it will rather Irritate and Provoke them as it did in the late unhappy Civil Wars but if Superstitious will the Pope or Bishop make Use of the great Interest and Strength they gain thereby in the People to advance their pretended Spiritual Sword above the Temporal and their own Supremacy above Temporal Kings and Princes which if Resisted by the Princes of such Subjects hazards their being Deposed and losing Kingdoms and Lives together as appears by the Examples before Recited In the same danger is a Prince who Trusts a Temporal Officer whether Treasurer or other with too much Power of Money as Theocritus Anno 518. caused Amantius an Eunuch to give Justin Amantius the General of the Army a great Sum of Money to give the Soldiers to choose Theocritus Emperour but Justin distributed it for himself and so obtained himself the Empire The Western Emperours first raised the Popes to that height as to Excommunicate the Eastern Emperours the succeeding Popes to return their Advancers due thanks Excommunicated after the Western Emperour The French Kings assisted and after raised the Popes to such height that they Excommunicated Deposed and Poisoned the Western Emperour after by the same Power the French King gave them in thanks they Excommunicated and Assassinated the French Kings The Princes of Sicily and Naples had been mighty defendors of the Papacy but when they had made it mightier than themselves the Succeeding Popes took from them their Sovereignty to themselves As to the Impossibility of Safety of Princes amongst Subjects Educated in fear of Excommunication Subjects Educated in fear of Excommunication dangerous to Princes It is to be Noted as well from the Testimony of approved Authors as from the Scripture it self that amongst the Primitive Christians those who are now called Bishops but in the Original word signifie only Overseers were Parochial Bishops or Overseers and not Provincial and that they were the same with Presbyters and differ'd not in
do a Miracle in my Name that can lightly speak Evil of me For he that is not against us is on our part The Bishops Canon appears therefore clean contrary to the Example and Precept of Christ It is before mention'd how the Bodies of Dead Persons in their Graves are by some believed to be Revived and Tormented by the Devil and how Locusts Flies and Fishes have been struck with this Thunderbolt of Excommunication There is no Good man dare Torment or Destroy by the help of any Invisible Spirit nor will nor ought any good Magistrate suffer them without a Sign of Mission from God above the Power of his Temporal Sword for all Magicians and Witches would then Act their Mischiefs under pretence that they do it by the Spirit of God and that their Excommunication is the Curse of God If therefore any Malefice follow without a Sign of Mission whereby they had a Warrant to Curse the Magistrate Sign of Mission whereby they had a Warrant to Curse the Magistrate ought to punish them for Witchcraft or all Laws against Witchcraft must be Repealed and the Devil let loose by his Instruments the Witches to do what mischief he pleases and no Judg presume to punish a Witch if he only say What he did was done by the Spirit of God It is impossible to distinguish invisible Spirits or to trie the Spirit whether God or the Devil but by visible Sign if the hurt be done therefore by any Person by assistance of a Spirit unless he shew a Sign he ought by the standing Laws and Acts of Parliament to be punished for Witchcraft and if he pretend to have a Mission from the Spirit of God and hath none he ought to be punished for a Cheat. And under the same Dilemma fall the Authors and Executors of the before mention'd Canon prohibiting Ministers to cast out the Devil by Fasting and must be guilty either of Withcraft or a Cheat if they cannot shew a Sign of Mission to make such a prohibition and to give such a Licence as their Canon imports though they impute the same to the Ministers who Fast and Pray when they do not Excommunication makes all Sins equal Excommunication as it came from Pagans so it sets up again that old Pagan Doctrine of the Stoicks Omnia Peccata esse Equalia Excommunication for Two Pence There was a Poor man who used to go to Labor for Six-pence a Day he lived in a Parish where the Custom was The Clerk was to have a Penny every Year of every House-holder and being very Poor rather needing to receive Alms than to pay Rates he thought he might have been on that Cause excused whereby this Penny was neglected to be paid for two Years following which amounted to the Sum of Two Pence for which he was Sued in the Bishops Court and Excommunicated and he would often complain that he could not recover his Estate till he had given the Court Eighteen-pence See the Piety of an Excommunicator he would if he had had Power have sold the Poor mans Soul to the Devil for Two Pence if he could not get some Money to redeem it Excommunication Pardons all Sin for Money Excommunication is done to no other end than to drive them to buy Absolution which enticeth and encourageth all kind of Uncleanness and other Wickedness Excommunication sets up Idolatry Pope Gregory the Second Idolatry Excommunicated and Deposed the Greek Emperor Leo Isaurus because he made a Law against Images and Nick-named him Iconomachus or the Fighter with Images Excommunication and Power to Judg of Heresie returns all to Popery and Priest-riding Thus Excommunicators follow the Precedent of the old Pagan Priests of Mars whom they called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the Fire-bearers who having Solemnly performed their Rites and Ceremonies of Cursing Execration or Excommunication as Balak would have had Balaam to have done used before the Battel joined to cast Fire-brands between the two Enemy-Armies standing in Battel Array one against another and so stirred them up to fight but they themselves yet retired out of the medly and danger 1. This gives the Popish Priest that main Pillar of the Popish Empire the Jurisdiction of Marriage Filiation Aliment and Succession and the Arbitrary disposing of the same both in Kingdoms and Private Patrimonies 2. This gives him the Power of setting up Images as appears in the fore-cited Example of the Emperor Leo Isaurus Excommunicated and Deposed because he forbad Images 3. This gives him Power to Asassinate Kings of which are a multitude of Examples 4. This gives him a Power of Confiscating Kingdoms and Selling them to others 5. This gives him Power to Confiscate and Imprison Arbitrarily the Subjects by Excommunicato Capiendo's as is before declared 6. This gives him Power of taking from the People the free Election of their Parochial Ministers and imposing on them the Popish Sacrament of Orders and Ordination contrary to the Law of God 7. This gives him Power to compell Confession of Sins to be made to the Priest which ought only to be made to God the Magistrate and the Brother injured 8. This gives him Power to impose Penance and Corporal punishment which ought only to be done by the Magistrate 1. Because the Magistrate should else bear the Sword in vain 2. Because it is unjust the Magistrate should penance or punish once and the Priest punish again for the same Sin for Nemo debet bis puniri pro eodem delicio 9. This gives him Power of imposing what Commutation-Money and Arbitrary Fine he pleaseth which is a Subversion of all Propriety in Goods 10. This gives him Power to sell Absolutions and Pardons of Sins and compell the same to be taken from the Priest which ought only to be taken from God the Magistrate and the Brother injured for unumquod que dissolvitur eodem modo quo conflatum est none can pardon an Offence against a Law but a Legislator none can release a Trespas but the Party against whom the Trespass is committed 11. This not only gives him Power by Pardon to Null the Laws of God and Men and the Penalties of the same but to Enact Arbitrarily new Laws and Penalties contrary and Superior to the Law of God viz. Ceremonial Laws made by the Priest contrary and Superior to the Moral Law made by God 12. This Impowers him to Usurp the Throne of God himself in the Soul and Conscience of man wherein none ought to be Judg but God himself Excommunication without a Sign of Mission not Instituted by Christ but invented by Pagan Priests and Daemons That Christ never Judged nor Condemned any though he heard him Preach in Person and believed not appears by the Scripture Faith and Infidelity being rather unavoidable Passions than free Actions of the Soul it being not in humane Power to believe what the Conscience is not convinced of or not to believe that whereof it is convinced and that Christ never appointed so
much as a Non-Communion which is far less than an Excommunication with Hereticks or unbelievers appears by his Example of Eating and Drinking with the Pharisees and his frequent Converse with all the Jewish Sects yea with Samaritans and what is more he Eat and Drank with Publicans and Sinners and taught The whole needed not the Physician but those who are Sick Bishops Murderers to deliver to the Lay-Power and how great a weakning 't is to Religion not to admit Liberty to Dissentients in Faith and Form of Worship but to persecute them with Excommunication though brevity permit me not here to speak I may on another occasion shew Waldus and Wickliff who were Protestants taught That Excommunications Suspensions and Interdicts were only inventions to maintain the Bishops Pride and Covetousness and that they were Murderers who deliver'd over to the Lay-power The same held John Hus and Jerom of Prague who were therefore Martyr'd by the Papists Luther likewise opposed Excommunication and Erastus and many other Learned men have sufficiently proved the imposture of it and that it never came from Christ but the true Original from whence it came appears in the Examples following Numa Pompilius the old Superstitious Law-giver of Rome who had his Law or he feigned from his Nymph or She-Devil Egeria first instituted his Pontifex Maximus or High-Priest which name the Pope hath since assumed to himself and gave him Power over all Sacrifices and Ceremonies to make propitious their Celestial and especially to appease the Manes and infernal Gods under whose Power they believed the Souls lay after Death and made their Superstitious Followers to believe That the Priests who were Masters of these Ceremonies could send their Souls to Heaven or Hell as they pleased according to Virgil Animas ille evocat Orco Pallentes alias sub tristia Tartara mittit He some pale Ghosts with Voice as with a Spell Call'd up and others head-long cast to Hell Supremacy got by Excommunication And by this Superstition the Pagan Priests got their Supremacy over the World by the like means did the naked Druides get Supremacy over the Gallick and British Cavalry as appears by Caes Com. de Bell. Gall. p. 157. Where he saith In omni Gallia eorum hominum qui in aliquo sunt numero atque honore genera sunt duo nam plebs pene Servorum habetur loco sed de his duobus generibus alterum est Druidum alterum Equitum Illi rebus divinis intersunt Sacrificia publica privata procurant Religiones interpretantur ad hos magnus adolescentum numerus Disciplinae causâ concurrit Magnoque ii apud eos sunt in honore nam fere de omnibus controversiis publicis privatisque constituunt si quod est admissum si caedes facta si de haereditate si de finibus controversia est iidem discernunt praemia poenaesque constituunt siquis aut privatus aut populus eorum decreto non stetit Sacrificiis interdicunt haec poena apud eos est gravissima quibus ita est interdictum ii numero impiorum sceleratorum habentur ab iis omnes decedunt aditum eorum sermonemque defugiunt ne quid ex contagione incommodi accipiant neque iis petentibus jus redditur neque honos ullus tributtur His omnibus Druidibus praeest unus qui summam apud eos Authoritatem habet hec mortuo siquis ex reliquis excellit dignitate succedet si sunt plures suffragio Druidum adlegitur nonnunquam etiam de Pontificatu Armis contendunt And after he saith Druides à bello abesse consueverunt neque tributa unà cum reliquis pendunt militiae vacationem omniumque rerum habent communitatem Here is the perfect Platform of the modern Excommunication and the Privileges claimed by Bishops and that impious Punishment Neque iis petentibus jus redditur that a Person Excommunicated right or wrong shall not be permitted to Sue for his Right though never so just and the like with the Excommunication instituted by the Beast Rev. 13.17 That no man might Buy or Sell save he that had the Mark or the name of the Beast A Satyrin Defiance of all Excommunication without a Sign of Mission from God DAmn'd Fiend of Hell who first in Earth or Skie Did'st counterfeit the Voice of the most High And both to God and Man to shew thy Hate In darkest Clouds didst dare to Fulminate Either of Ignorance or Air the Light Of humane Souls or Sun to close in Night That thy Sulphurean Sentences might blaze Like Comets and the foolish World amaze That to thy false Fires Knees and Hearts might bow And the true Fire and God they might not know Thou Druids first taught'st in our Isle to sing Dirge's to Souls which made the Woods to ring And did they thought transport them in a trice to happier Groves or to Fools Paradise This the old Britons Courage made renew And more than Woad themselves their Foes look blue Whose trembling Souls they made with Fear to groan Of Styx with Fiery Water where was none To Bless or Curse they car'd not right or wrong Thus Priests the Spoils got Soldiers a Song Who should be Arch-Priest raised Civil Wars The Forest ratled then with Armed Cars And naked Anti-Popes far off from Fights Spit Fire at one another just like Sprights Each side were Martyrs inade who dy'd of Wounds Sans nombre which did so o'restock the bounds Of the Elizian Common that they tell Souls after Death Fought who should go to Hell With this inchanted Sword more ill to do They stole or took by force the Civil too And like so many Kets in Savage State Under their Oaks of Reformation Sate And Judged all Causes and of Peace and Wars The Treasures got thus without Wounds or Scars All to their Sentence bowed as to Fate Whom they but doom'd to Excommunicate Yet they no Sign of Mission thus to do Druydes Sign of Mission Had but their Oak and on it Misleto The Druids dead they left their Furies Whip Brothers and Sisters falling first to strip And as their Worships pleas'd to Lash and Jerk First to one Pope then many in a Kirk Nobles and Poor Bare-Footed and Bare-Leg'd Stood at Church-door and for their Pardon 's Beg'd Which to be granted were so long delay'd Till Commutation-Money first was paid Unto the same they next gave by their Will Their flaming Sword to Strike Depose and Kill High Emperors and Kings and cut the bands Of Subjects Oaths and Faith at their Commands Blind Cupids Arrows first they stole of Love And after thus the Thunderbolts of Jove The Romish Bishops Sign of Mission The Romish Druids next to shew a Sign That their Infernal Mission was Divine By their Black Magick Art in time most strange The hollow Oak to holy Church did change And on the top they made the Mislet◠To turn and there into a Steeple grow And Leavs to Ropes and Berries into
not yet it prohibits unlawful Invasions amongst all which that of Conscience is the greatest with a Denunciation of the ill Success shall follow sufficiently verified in the many Examples of Emperors and Princes when they went to make War against such as Defended their Conscience 2. To Plant Religion by the Sword is a Relapse to Popery and we commit that Crime our selves which we impute to be the highest in them 3. Error in Conscience is not in the Power of the Party to Redress it is unjust therefore to Impose a Penalty for what was not in the Parties Power to prevent before or amend after 4. Thoughts ought not to be punish'd by men before they break into External Acts or at least discover themselves by Words or Deeds to External Witnesses 5. Tests Penal are no other than the Romish Inquisition compelling men to accuse themselves Criminally or to commit Perjury to avoid it or to rebell to Defend themselves against it 6. Protection is the more Honourable which is hence given the Consciences of Foreign Protestants against Foreign Papists by how much the more merciful the dealing is of the Native Protestants here towards the Consciences of their Native Papists 7. If a Test is made Penal it ceases to be a Test for men will Swear contrary to their Consciences to avoid the Penalty whereas if no Penalty on Confession they would confess the Truth 8. This will Punish the Innocent together with the Nocent there being many of the poor sort of Papists who Curse the Covetousness of their great Ones who take Bribes Gifts and Pensions to themselves and leave the Inferiors exposed to all the Dangers It is a sufficient Use of a Test therefore if it only Dis-Office the Papist to preserve the Publick Government in Protestant-hands Whether Papists or Protestants ought to be Compell'd to Confession of Faith or any External Form or Ceremonies of Worship against their Conscience by Penalties It seems not 1. Because a Non-Compulsion is not an Approbation Non enim idem est ferre aliquid ferendum probare si quid probandum non est Cic. Fam. Epist L. 9. Ep. 6. Neither is it as much as a Toleration of the Popish Forms of Worship either of Images Idols Crucifixes Crosses Beads Reliques Masses c. But all Acts of Parliament remain in as full force against these Superstitions as before and the Command of Scripture as performable Deut. 12.2 Ye shall utterly destroy all the Places wherein the Nations which ye shall possess served their Gods upon the high Mountains and upon the Hills and under every Green Tree And you shall overthrow their Altars and break their Pillars and burn their Groves with Fire and you shall hew down the Graven Images of their Gods and destroy the Names of them out of that Place But a Non-Compulsion amounts to no more than this That the Penal Acts against Recusancy and Non-Conformity may be laid aside equally as to Papist and Protestant which destroy all Conscience in both 2. Because a Non-Compulsion doth not hinder but advance a Publique free Worship according to such Form and Ceremonies as shall be allowed by the King and Parliament only it frees from Force and takes away the Usurpt Supremacy of the Bishops of Forming Godliness into Gain by restoring it to the Legislative Power of the King and Parliament 3. Recusancy is easier foil'd by giving way than contending and Conformity easier won with Lenity than Rigor Vitia quaedam faciliùs tollit Princeps si patiens eorum est saith Senec. de Clementia Cede repugnanti cedendo Victor abibis Minus placet magis quod suadetur quod dissuadetur placet Plautus Noli Vitia irritare vetando Vidi ego nuper equum contra sua fraena tenacem Ore reluctanti fulminis ire modo Constitit ut primum Laxatas Sensit habenas Fraenaque in Effusa Laxa Jacere juba Ovid. I saw my self an Horse curb'd with a Bit To flie like lightning in despight of it But still he stood as soon as he no Check Felt and the loose Reins cast were on his Neck 4. Chrysostome Hom. 19. in Matth. saith Do the Sheep persecute the Wolf No but the Wolf the Sheep Whence appears that those Protestants who persecute Dissentient Protestants for their Conscience are Wolves in Sheeps Clothing and to be Censur'd far worse than the Papists who do it openly in the Form of a Wolf 5. Thy own Conscience is not Infallible nor Immutable Let him that standeth take heed lest he fall It were a great shame therefore to be over-violent in that from which thy own Conscience or Practice may perhaps eftsoones be Changed 6. Non-Compulsion to discover it self to punishment is the best Right that a Conscience so Innocent as abstains from discovering it self only that it may not thereby offend can crave Tacere liceat nulla Libertas minor à Rege petitur Senec. Oedip. Govetousness the only cause of Compulsion of the Conscience to Confession of Faith or Form of Worship 7. The Final cause of Punishing Consciences which are silent and offend not is only Insatiable Covetousness which can pretend no other cause or colour of taking the Spoils of Innocents Thus Popes and Bishops Rob and Murder the greatest part of Christendome under the name of Hereticks And the Turks the greatest part of the World under the name of Unbelievers and Mahomet after he hath in many places of his Alcoran incited his followers to Fight with Kill and Slay such Unbelievers and take their Goods and Lands from them wherever they can find them he Commandeth them to bring a share of the Spoils to the Prophet meaning himself and saith further Alc. cap. 61. God loveth those who Fight in Rank and File for his Law And what other Doctrine and Practice do Popes and Bishops Preach and Act but the same which shall take the Spoil of the miserable People they get under their Power for no other Crime but their Conscience for this they contend one with another and offer Force to destroy the Conscience it self and Body and Soul with it so they may Seise their Prey of Goods and Lands as Jezabel did of Naboth 1 Kings 21.8 So she wrote Letters in Ahab's name and Sealed them with his Seal and sent the Letters unto the Elders and Nobles that were in his City dwelling with Naboth And she wrote in the Letters saying Proclaim a Fast and set Naboth on high among the People and set two men Sons of Belial before him to bear witness against him saying Thou did'st Blaspheme God and the King And the men of his City even the Elders and the Nobles who were the Inhabitants in his City did as Jezabel had sent unto them They Proclaimed a Fast and set Naboth on high among the People And there came in two men Children of Belial and sate before him and the men of Belial witnessed against him even against Naboth in the presence of the People saying Naboth did Blaspheme God and
Rule of great incertainty to Judg Heresie Council of Chalceldon The last of the Four was the Council of Chalcedon in Bithynia which was called by the Emperor Martianus about the Year 455. whereat the Emperor was present in Person and 630 Bishops and Reverend Fathers from the greatest part of the World What a work is here who should Judg Heresie yet they never placed the Power of Judgment in the Right hand neither will it be possible to be taken out of the Wrong nor did any of these Emperors nor shall any else dare do it as long as Bishops continue hired with their own Treasure and Revenue and their own Temporal Sword deliver'd into their hands for Rome and Constantinople to Fight for Supremacy over themselves and to Sentence and Judg them and their Subjects as Rome hath done since it obtain'd Supremacy at their pleasure The Bishop of Rome had at this time got a Bishop at Constantinople placed for his purpose who was content to acknowlege the Supremacy of Judging Heresie to be in the Bishop of Rome or any else if he might be Second and enjoy so Fat an Office as to be Bishop of Constantinople but the City differ'd from their Mercenary Bishop who was call'd Anatolius and disdaining in their Religion to bow to Rome set up Eutyches an Abbot or Archimandrite of Constantinople to publish a Doctrine That Christ had no Humane but only a Divine Nature in him To suppress which Opininion Flavianus a former Bishop of Constantinople had moved the Emperor Theodosius the Second to call a Council at Ephesus Anno. 449. wherein Eutyches was Condemn'd by Flavianus yet by the help of Chrysaphius the Eunuch and Endoxia the Empress who favour'd that opinion Theodosius was prevailed with to make another Synod Judg of this Heresie which was again Summon'd by the Emperors Authority at Ephesus and Dioscorus of Alexandria made President at which Synod Eutyches is again cleared and declared Orthodox and Flavianus opposing it was so upon that Three Days after he died and all this being done in the Council of Ephesus Anno 449. in Theodosius's time was again Repealed and Abrogated Anno 455. in Martianus's time at the Council of Chalcedon And Leo the First Bishop of Rome by the help of Anatolius Bishop of Constantinople and his other Pensioners carried the Day for Supremacy of Judgment and Punishment of Heresie and Anatolius and the See of Constantinople was to be only next in Dignity to the Infallible Chair of Rome Considerations on the Judgment of Heresie when assumed by Bishops according to the Four first General Councils if it make them suspect to be Papists and not sit to be Prayed for in Publick 1. Coke says this Parliament 1. Eliz 1. was doubtful what they ought to determine Heresie and Schism and what not which was as much as the Bishops needed to desire that the Layity might be Ignorant and they have Power to keep them so and Heresie a Quaere to be Judged by themselves pro Arbitrario 2. It appears that the Pious Queen the Dawning of the Reformation but newly entring with her she could not suddenly Dispell the Darkness yet hanging over her own Protestant Party nor the Blacker Clouds gathering from Foreign and Native Papists against her nor resist her own Bishops designing to continue those Privileges of Profit translated by from Rome to Canterbury for certainly if the Protestant Party had understood That the Four first Councils had adjudged all those to be Hereticks who would not Worship Images and had been able to have over-Voted the Popish Party and Bishops they would never have given them Power to Judg Heresie according to those Idolatrous Councils for thereby they might Sentence them and all Protestants that were against Images to the Stake 3. The Bible was but little before Translated into English yet to keep it more dark still than if it had continued in Latine they who alledged themselves Protestant-Bishops sent the People to Learn the same of Greek Councils and to Read there the Law of Heresie while they Judged them at home in their Latine-Law and Latine-Courts the mean while 4. They equal Councils with Canonical Scriptures that their Convocations and Provincial Synods may have the same Authority 5. They equal their Convocation with the King and Parliament for the words of the Statute are or Determined to be Heresie by High Court of Parliament of this Realm with the Assent of the Clergy in their Convocation Knowing if the Miter once get equal 't is but one step more to be above the Crown 6. By those words they Constitute to themselves the Power of a Negative in Legislation against the King in Parliament and the two other Estates which makes them a Fourth Estate in the Legislative Power knowing such Fourth Estate like the Fourth Beast in Daniel may easily Devour all the rest 7. They Judg since no Commissioners were made every Bishop in his Diocess a Judg of Heresie Jure Divino and they by their own Popish Canons and the old Popish Acts against Lollards who were the followers of Wickliff and the Primitive Protestants and the Proto-Martyrs of England Judged Protestancy to be Lollary and Heresie and all the Sheriffs of England take an Oath with all their Power to Destroy all Heresies and Errors commonly call'd Lollaries which is Protestancy and to assist the Bishops in the same whensoever by them Required whereby they have the whole Military Power at their Command to Judg and Destroy Protestants as Hereticks 8. They Judg Heresie by their own Ceremonial Laws and Canons whereby they Arrogate a Power above the Moral Law of God by which alone all Heresies and Schisms and all Error and Truth ought to be Judged I conclude therefore That such Bishops if there are any such as Exercise all these ways of Popery many Protestants may happen to suspect them to be Papists for their profit and therefore scruple to join with their Chaplains in their Prayer before Sermon for God to speed them It will not agree with the Consciences of many Protestants to join with the Chaplain in publick Prayer for his Patron 1. Because all Patronages were invented and erected by the Pope and Papal Laws all Patroage came from the Pope and the Strength and Riches of all Popery consists in Patronages or Power of Presentation to Cathedral Collegiat Parochial or other Religious Churches or Houses 2. It is very unjust that any who must pay the Lawyer or Physician his Fees should not have Election of such a one of either as he can Trust and much more as to a Divine Lawyer and Physician of his Soul that any should be Imposed on him whom he cannot Trust and who may perhaps Poison him in the Sacrament it self of which Examples have been already Cited but the Chaplain who Prays for the Patron is obtruded on the Pay of the Parish without their Assent and the Patron many times pays him not a Penny but Sells to him