definitive Sentence would dissolve that Marriage which Titius accordingly doth and by his Sentence declares it Null and Void and by the said Sentence pronounceth it lawfull for Lucius and Sempronia to marry whom they will yet so that a solemn Oath be taken by Sempronia that she contracted Matrimony with Lucius out of fear and force from her Father and that to her Marriage with Lucius she gave not her free consent which Oath she took and no proof of the fear and force in that her Marriage with Lucius appears to have been otherwise made before Titius Sempronia afterwards in England Marries Caius a French Man Lucius being still alive and Caius after that going into France and there living a part from Sempronia she is advised by her Councel to cause Caius to be cited before Maevius a Bishop of the Roman Catholick Church in France and to endeavour to obtain the Sentence of Maevius to compell Caius to Co-habit with her saying That her Marriage with Caius is not Null and Void although Lucius was still alive because her Marriage with Lucius was dissolved and declared Null by the Sentence of Titius who though he was a Protestant Bishop of the Church of England and though that Sentence as to its form was Irregular and Null and as to its substance contrary to the Law of God and to the Law of the Roman Catholick Church and contrary to the Canon and contrary to the Law of France and even contrary to the Laws of the Church of England yet the said Sentence being de facto given by Titius her Councel saith That Maevius hath not power to question it nor to pronounce contrary to it as being but of equal power with Titius they both being Bishops of several Diocesses but that he ought to pronounce Caius and Sempronia lawfull Man and Wife and command them to Co-habit and he declares that his Opinion in this Case is according to the practice of France Now the Query is if Maevius hath not power to question the Sentence of Titius because he is but of equal Power with Titius they being both Bishops though of different Countries and Churches and if he ought to pronounce Caius and Sempronia lawfull Man and Wife and command them to Co-habit The Doctors in Divinity of the Faculty of Paris under written having seen the Case above put with all its circumstances do esteem that the first Marriage is valid and that the first Sentence given by Titius is against all sort of Justice and therefore that the second Marriage is Null Given at Paris the 16. of Decemb. 1677. Puischard Thuby Here follow the Opinions of Sir Richard Lloyd and Dr. Richard Raines Doctors of Law THE CASE PAtrimoniale and Gallina intermarry 64 and Co-habit about twenty Months and have Issue a Daughter But Gallina it seems not liking that Marriage pretends it was Null propter vim metum and obtains a sentence of Nullity from the Archbishop of Turin but without any defence for ought appears made by her Husband Patrimoniale or proof of the pretended force or fear Gallina being thus separated doth Anno 71 marry Cottington against whom Anno 74 she brings an Action in Causa Matrnioniali here in England where she doth alledge and prove the second Marriage To which Cottington doth answer that her first Husband Patrimoniale was then and is still alive She replies 'T is true but that first Marriage was declared Null and Void by the Archbishop's Sentence and he rejoins That that Sentence it self was Null and Void being given without proof and contrary to Law The Ecclesiastical Judge here in England having this Fact before him doth give Sentence for this second Marriage and enjoins the Parties to Co-habit alledging that he hath no power and is not by Law to examine or question the Validity of the Archbishop's Sentence but ought notwithstanding any Defects or Nullities therein to give Sentence for the second Marriage Q. Whether the Judge of one Territory may by Law examine and question the validity of a Sentence of a Foreign Judge and in particular as this Fact is where it is given in a Matrimonial Cause A. We conceive that the Judge of one Territory cannot directly examine and question the Sentence of a Foreign Judge because he hath no Superiority over him But if it happens that such Sentence doth upon any incident come before him as if he be requested to put the same in Execution or if one of the parties litigant shall as the cause may require make his Plea and found his intention on such Sentence then the Judge may enquire into the grounds and merits thereof and if he finds it is not agreeable to the Principles of internal Justice and that it wants the substantials of a Sentence requisite not by the positive Laws of the place but by the common and general Law by which it is supposed the Case is to be judged he is to forbear putting the Sentence into Execution or to admit it as a Plea untill those points be declared wherein he finds or hath just cause to judge it is not agreeable to the Law There is a great difference in this matter betwixt Judges of the same and a Foreign Territory In the first Case the Sentence of the Superior is of force by reason of Subordination and Subjection and for that Cause Res judicata pro veritate habetur But in the second Case the Sentence is not simply took for truth it hath only a presumption for it And when that is took off by clearer evidence it hath no force and operation on a Foreign Judge who is to observe the Rules of that general and Common Law and to respect the precept of the same Law which saies An unjust and null Sentence is not to be executed or regarded rather than the meer Authority and Jurisdiction of any equal Court and Judge Now the substance and perpetual rights of Marriage are determined by the Law Divine and observed in the Catholick Church which hath added some Supplement or Explications thereunto All which at least where they are received and practised as they are here in England make the common and general Law to which every Ecclesiastical Judge there is subject and which he is ex officio and by the precept of the Law bound to observe even against the consent of Parties and the authority of any Co-ordinate equal Judge The Premisses considered since in this Case here is a perpetual impediment objected by Cottington viz. That the first Husband of Gallina was then and is still alive and since the Archbishop's Sentence is grounded on a pretended force and fear not proved for ought appears and if it was it is by the abovesaid Co-habitation and Issue purged in construction of Law we are of Opinion that the Judges of this Territory ought not to pronounce for the second Marriage untill they shall be satisfied if it may be that the Archbishop's Sentence was good and valid Rich. Lloyd Rich. Raines In
have Sentence for the Nullity of her own Marriage according to Justice It is objected on the behalf of A. B. That she ought not to be admitted thereto for these causes viz. Because the Marriage with the Scottish Woman was solemnized in Scotland the sentence of Divorce was given in Scotland by the Judges there where the Judges of England have no Jurisdiction nor Superiority over them That there was no appeal or provocation from that Sentence That it was given by the Judges of an high Court in Scotland from whence no Appeal lieth And that if the English Woman's marriage should be pronounced void here in England the justice of the Realm of Scotland may thereby seem to be taxed The Question is Whether the Ecclesiastical Judges or Judge having Jurisdiction in the place in England where the said A. B. and the English Woman dwell be competent Judges and may and ought at the Petition of the English Woman to hear and determine this cause of Nullity of the marriage between her self and A. B. notwithstanding the former Objections We are of Opinion without any doubt That the Ecclesiastical Judge haing Jurisdiction in the place in England where the said A. B. and the said English Woman dwell may and in Justice is bound at the complaint of the said English Woman to hear and determine the said cause concerning the validity of her said Marriage and to pronounce the marriage between her and A. B. to be void if she prove before him the matters by her alledged notwithstanding the aforesaid Objections Neither can the Justice of Scotland be thought to be impeach'd thereby though upon sufficient proof made before the Judge here in England which was not made before the Judges in Scotland he giveth a Sentence which may seem repugnant to the Sentence given in Scotland In a Manuscript Book of several Collections made by Sir Julius Caesar Master of the Rolls and Chancellour of the Exchequer and one of the King 's most Honourable Privy-Council there is referr'd to in the Index of the Contents writ with his own hand viz. That the question between Sir John Kennedy Knight and his Lady touching the lawfullness or unlawfullness of their Marriage may be tryed heard or determin'd in England where both parties are inhabiting And from Fol. 2d of that Book to Fol. 8th the following Leaves are Transcribed the Page before Fol. 8th in Sir Caesar's Book is thus with his own Hand indors'd viz. The Reasons of the Resolution of A. B. 25. Jan. 1610. The said Manuscript Dr. Trumball borrowed of Sir Charles Caesar and it yet remains in the Doctors Hands 'T is markt in the back C. S. 8. Certain Points in Law and Reason whereby it may plainly appear that the question between the Lady Kennedy and Sir John Kennedy concerning the Validity of their Marriage may and ought by ordinary course of Law be heard and determin'd before the Ecclesiastical Judges in England who have jurisdiction in the places where they both dwell Whereupon the Civilians have grounded their Opinions given in this Case to that effect FIrst by Law and Reason there can fall out no Question or Controversie between any Persons inhabiting in any Civil Common-wealth or State but the same must be decided by some competent Judge or Judges who ought to have Authority to hear and determine the same or else there must needs ensue Confusion and Horrour Secondly When any Controversies happen between any Persons proceeding of any contract whatsoever that require a Determination or ending by Judgment wheresoever the Contract was made those Judges are by Law the competent Judges to hear and determine that Controversie who have jurisdiction and power in the place where both the parties or the party defendant dwelleth to hear and determine causes of that Nature Thirdly If there fall out any Controversie between any two Persons the Defendant cannot be compelled to appear to answer the Plaintiff but before the Judge of the place where the Defendant dwelleth and especially if the Plaintiff himself dwelleth under the same Jurisdiction Fourthly In all Causes where there may ensue peril of Soul and continuance in Sin the Judge of the place ought of his Office to enquire thereof and redress the same though no Man complain thereof Whereupon it followeth That the Ecclesiastical Judges here in England who have Authority to hear causes of Matrimony are the competent Judges and have power to hear and determine this matter of the lawfullness or unlawfulness of the Lady's Marriage and the rather for that the Lady's Marriage which is the principal matter in question was made and solemniz'd here in England If it be objected That because that Point whereupon the Validity or Invalidity of the Lady Kennedy's Marriage dependeth viz. the Marriage between Sir John and Isabel Kennedy is already adjudged by a definitive Sentence long since from which there hath been no appeal or provocation and therefore it must Barr the Lady We answer That although in Causes of other Nature where no danger of sin might ensue though the Sentence were against the truth if a Sentence be once lawfully given and not appealed from in due time the matter cannot be called in question again yet where a Sentence is given to dissolve or anull a lawfull Matrimony that Sentence may at any time though never so long after be called in question and reversed whensoever it may be made to appear that the truth is contrary to that Sentence and that may be done even by the party himself who obtain'd that Sentence And therefore not only Sir John Kennedy but Isabel her self might have reversed that Sentence proving the same was given by error much less shall the Lady who was not party to that Sute be thereby debarred from proving the Nullity of her Marriage being a distinct cause from that And the reason of the difference between a Sentence against a Matrimony and a Sentence in another Cause is because in other Causes where no fear is of Sin or peril of Soul to ensue the parties may by their agreement make what end of the Business they list by composition or otherwise And therefore if they do not appeal from the Sentence given against them they are thought by their consent to confirm the same but because a Marriage by God's Law cannot be dissolved by the Agreement or Consent of the Parties no Sentence therein given against a Marriage contrary to the truth by error can by the Parties agreement be confirmed lest if it should be otherwise thereby they might by colour of the erroneous Sentence marry other Persons and live in Adultery Nay more If the Parties themselves thus erroneously divorced contrary to the truth would hold themselves contented with the Sentence if either of them marry any other Person or they both live incontinently with other Persons the Judge of that place where they inhabit may and ought of his own Office to inforce the Parties so by error divorced to live together again
Herculeas ultra quem jactat rauca columnas Famasnec officio par lamen illa suo En libi BARLOUM potuit quae Sculptor at ipsa Arte licet claram vincit ut umbra manum Ora venusta vides et nobilis Atria mentis Quod nitet interius nulla Tabella dabit The Tullie 〈◊〉 SEVERAL Miscellaneous and Weighty Cases of Conscience Learnedly and Judiciously Resolved By the Right Reverend Father in God Dr. THOMAS BARLOW Late Lord-Bishop of Lincoln VIZ. I. Of Toleration of Protestant Dissenters II. The King's Power to pardon Murder III. Objections from Gen. 9. 6. answered IV. Mr. Cottington's Case of Divorce With the Judgments of Dr. Allestrey Dr. Hall Sir Richard Lloyd Sir Richard Raines Dr. Oldys and the Doctors of Sorbonne upon the same V. For Toleration of the Jews VI. About Setting up Images in Churches VII An Dominium fundatur in Gratiâ With two Pages omitted in the English Machiavel and his Lordship's Censure thereupon London Printed and sold by Mrs. Davis in Amen-corner 1692. The Bookseller's PREFACE to the Reader THE Reader may be pleased to take notice that the following Tracts were written by the late Eminent and Learned Father of our Church Dr. Thomas Barlow Lord-Bishop of Lincoln and printed from MSS. written with his own Hand The Occasions these I. The Case of the Lawfulness of Toleration of the Jews was writ at the Request of a Person of Quality in the late troublesome Times when the Jews made Application to Cromwel for their Re-admission into England II. The Case of Toleration of Christian Dissenters was written to and at the Request of the Honourable and Learned Mr. Robert Boyle 1660. soon after the Restoration of K. Charles II. III. Whether it be lawful for his Sacred Majesty K. Charles II. to reprieve or pardon a Person convicted and legally condemned for Murder written upon occasion of Mr. John's being unfortunately convicted for the unhappy Death of Sir William Estcourt Bar. IV. The Case of Murder in Answer to an Objection then made from Gen. 9. 6. That Kings have not Power to pardon Murder V. Mr. Cottington's Case concerning the Validity or Nullity of his Marriage with Gallina her former Husband then living 1671. Mr. Cottington applying himself and Mr. Brent coming from the then Earl of Danby to request his Lordship's Opinion therein With a further Resolution of the same as also the Judgments of Dr. Allestrey Dr. Hall now Lord-Bishop of Bristol Sir Richard Lloyd Sir Richard Raines Dr. William Oldys and the Doctors of Sorbonne at Paris in point of Law and Conscience upon the same VI. A Breviate of the Case concerning setting up Images in the Parish-Church of Moulton in the Diocess and County of Lincoln 168 ¼ Writ upon occasion of this Learned Bishop's being cited before the Dean of the Arches for suffering such Images to be defaced c. And upon reading of which Case so truly and evidently stated the whole Prosecution which was then violently and virulently enough carried on against him was stopp'd VII Whether that Dominion is founded on Grace be a Tenet chargeable on the Church of Rome VIII One Folio Leaf omitted out of Machiavel in English with the Bishop's Censure thereupon The Reader may please to observe in Mr. Cottington's Case the Counsel use the Name of Frichinono for the Husband of Gallina which was his proper Name but the Bishop that of Patrimoniale which was the Title of his Publick Office and by which latter he was frequently known and called by at Turin The Resolution of this Case may be of great use it being never so fully stated before Davila tells us in his fifth Book that Hen. 4. was married to Q. Margaret at Nostredame by the Cardinal of Bourbon in Presence of the whole Court and she was given in Marriage by Charles 9. her Brother and after a long Cohabitation the Cardinal of Joyeuse the Pope's Nuncio and the Arch-Bishop of Arles being delegated by the Pope nulled the Marriage propter vim metum Q. Margaret alledging she was forced to it by her Brother And the Sentence gave liberty to the King and Queen to marry whom they would And accordingly the King afterwards married Mary of Medicis one of whose Daughters was Henrietta Maria the Wife of our K. Charles I. and Cardinal D'Ossat justified the Legality of this Sentence tho there had been no Cause shewn But the Law of Nations does not oblige our Courts to execute or pronounce Sentence according to Foreign ones Now tho the Bishop gave these Cases to his Friends when first writ with his leave to print them yet they fearing some of them might prejudice his further Promotions in the Church in those Days forbore Publication of them Tho we must do his Lordship this Right to aver that he had no regard to that so careless was he of the Event of any Action he thought himself obliged to do Religionis causâ that he has been often heard to say occasionally as a kind of Principle viz. He who thinks to save any thing by his Religion but his Soul will be a Loser in the end And his Lordship lived to see the Church of England of his Opinion in being indulgent to Dissenters for in that incomparable LETTER TO A DISSENTER written by the best and noblest Pen of our Age and upon the Measures of that Church in the Reign of K. James II. the Dissenters are told in express Words That the Church of England is convinc'd of its Error in being severe to them THE CASE of a TOLERATION IN Matters of Religion To the HONOURABLE ROBERT BOYLE Esq SIR IT is now a good while ago since you gave me command for so your Desires are and shall be to me to give you my Opinion in writing concerning the Toleration of several Religions or Opinions in a well-governed Church and State And though it matters not much what my Opinion be and besides my many Disabilities both of Body and Mind the little time I have by reading or meditation to collect more or digest those Notions I have renders me uncapable of saying much or indeed any thing which you do not know already yet in obedience to your command something I shall say for Cur me posse negem quod tu posse putes which may be an argument of my confiding in your Candor and Goodness and of my daring to trust you with all my Infirmities and an evidence not of my ability but willingness to serve you In short then I shall give you some of my Thoughts concerning Toleration tho not in that exact order and method not with that clear explication and confirmation of the Truth as I really desire and the Subject deserves I say then I. The Toleration we speak of is a Toleration of several Religions or several Opinions concerning it and therefore Atheists if there be any such come not under it For he who acknowledges no God cannot possibly be of any Religion which essentially
which the Lord thy God GIVETH THEE Canaan is the Land promised and given to the Jews only not to the Gentiles nor ever intended for them it being indeed impossible that all Jews and Gentiles should live in that little Land But to pass by the promises which do not so properly belong to our present business I say 2. That it is as certain that all the Mosaical Laws de Poenis are not natural but Positive and Judicial Laws which never bound any save the Jews or those who became Proselytes and voluntarily submitted to them to whom only they were given That this may further and more distinctly appear it is to be confidered as certain and consessed I. That the Law of Nature as all just Laws do binds all men 1. Ad Obedientiam to a willing and perfect Obedience And 2. upon supposition of sin ad Poenam But the Punishment to which the Law of Nature binds is Death and that Eternal Death For as in Adam by reason of sin all die so they had died eternally had not God most graciously sent his Son to redeem them from that death Every sin how small soever by the Covenant of Works of which the Moral Law was the condition on mans part to be perform'd was a capital crime and Death the Wages or punishment by that law due to it But those many various laws de Poenis which occur in the Mosaical law which he gave to the Jews are not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 non leges nobiscum nataE in cord naturalitere inscriptae not Natural laws writ in our hearts and born with us But they are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ‑ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 leges à Deo datae positive Laws which neither do nor ever did bind any but the Jews As may appear 2. Because they were given only to the Jews and that after they came out of Egypt which was after the Fall of Adam above 2450 years But those Mosaical Laws de Poenis of which we speak were never given nor publish'd to the Gentiles But had those Laws de Poenis been Natural Laws as the Precepts in the Decalogue are they would have bound all mankind from the Creation to this day and that indispensably and then all Christians should be bound to obey and practise those Penal laws and punish all Malefactors with such punishments only as in those laws are appointed which is evidently untrue as may appear 3. By the judgment and consent of the Christian World for no Christian Church or State did ever think themselves bound to observe those Mosaical Poenal Laws and to punish transgressors of the Divine Law with those punishments which are prescribed by Moses For instance That the stealing of a Sheep should be punish'd with restitutio in quadruplum with restoring four sheep for one if the thief had sold or kill'd the sheep he stole but if the sheep was found in his hand who stole it he was only to restore two sheep for one That the stealer of an Ox should restore five Oxen. That he who curseth or who smiteth his father or mother or will not obey them should be punished with death and stoned with stones That to do any of our own work so much only as to gather a few sticks on the Sabbath day should be capital and the offender in any one of these things surely put to death although these and such other Laws de Poenis were Divine given to the Jews by Moses and obliged them yet no Christian Church or State did ever think themselves obliged to the observation and practice of them And they had good ground in the Gospels to think so For 4. Our Blessed Saviour in his Sermon on the Mount explains and confirms all the Moral Laws de Officiis yet those severe Mosaical Laws de Poenis he did not confirm But expresly declares that legal severity to be inconsistent with the Charity of the Gospel For though by the Mosaical law a Jew might justly require and the Judge give an eye for an eye and a tooth for a tooth yet our Blessed Saviour expresly declares against such legal severity You have heard saith he it has been said in the Law of Moses an eye for an eye and a tooth for a tooth But I say unto you Resist not evil c He does not allow that severity in poenis in the Gospel which Moses allow'd the Jews under the Law and therefore we may be sure that it was not any Moral or Natural Law which required those punishments appointed for several sins in the Law of Moses for then they had been unalterable nor would our Blessed Saviour have contradicted them but it was the positive law of Moses which required them of the Jews to whom only these Laws were given and obligatory And here for further evidence of this truth it is to be considered 1. That in that Mosaical Law which is ignorantly or maliciously urged to prove that our Gracious Soveraign cannot pardon murder the strictest binding words are these The Murderer SHALL SURELY BE PUT TO DEATH Therefore say they he cannot be pardon'd They who reason thus did not well consider the consequence of such arguing from the Penal Laws in Moses For if this argument be good Moses says The Murderer shall surely be put to death Ergo He cannot be pardon'd Then this grounded on the same law of Moses will be every way as good and concluding The same Moses says Whosoever doth ANY work on the Sabbath-day he shall SURELY be put to death Ergo He cannot be pardon'd If such Logick were good it would conclude all men to be unpardonably guilty of death seeing I believe there is no man who on some Lords-day has not done some work and therefore by such Logick as this must be unpardonably guilty of death But enough of this for indeed such arguments do not deserve any serious answer or confufutation Sure I am that never any Christian Church or State did or had any reason to believe That the severe Jewish Law for the observation of the Sabbath did oblige Christians and therefore there neither is nor can be any more reason why their severe Law against Murder should be now obligatory to Gentiles or Christians to whom it was never given 2. When the Law says The Murderer shall SURELY die our best Commentators out of the Rabbins say that this is spoken to the Judges before whom such Causes regularly came Now those Judges in the Jewish Commonwealth were appointed by the Supreme Power and by his Authority judged and determined Causes under him Admit then that the Judges who were Magistrates Subordinate to the Supreme Power were to take no satisfaction for the life of a Murderer but were by that Law oblig'd to condemn and execute him yet it does not hence follow that the Supreme Power who made them Judges might
of a Father sufficient to Null the consent and matrimonial contract of his Daughter neither is nor can be pretended Secondly For humane Laws the Civilians and Canonists tell us That the fear of a Father makes not the Marriage or Consent of his Daughter a Nullity Plane metust reverentialis sive obsequium reverentiae Paternae debitum matrimonium non impedit uti nec Consensum No not when the Daughter gives her consent Patre suadente admodum urgente hortante And the law it self tells us That if a Father compell or force his Son to marry a Wife there is the same reason for his Daughter to marry a Husband which otherwise he would not have Married yet the marriage is valid and by reason of that force no Nullity si Filius Patre cogente ducit uxorem quam non duceret si sui arbitrij esset contraxit tamen matrimonium quod inter invitos non contrabitur maluisse hoc videtur So that even according to Human Civil and Canon Laws it is not all Co-action force or fear from a Father which makes the consent of a Daughter in a Matrimonial contract invalid or Nullity and therefore 't is impertinently pretended for such in our present Case 5. I confess the Canonists and Civilians say That fear makes the consent Involuntary and so indces a Nullity Locum non habet consensus ubi metus vel co-actio intercedit c. So saies that Law and the Lawyers consent and say further Quod Matrimonium per metum vel minis contractum deficiente consensu est ipso jure nullum But it is certain first That they do not mean a Reverential Fear a fear of displeasing a Father for the same Men in the same places say That such a fear does not vitiate the consent or make a Nullity Now all the fear pretended by Gallina in our Case was from her Father Secondly If the fear arise from the many and severe Threats of a Father yet this cannot make the consent involuntary and so a Nullity I confess that if a Father should Command and Threaten his Daughter to Marry an impious and unworthy Person the Law will warrant her disobedience for in that Case she is not by Law bound to obey her Father's commands or threatnings But in our Case no such indignity or incapacity of Patrimoniale's person is complain'd of or so much as pretended for a cause why Gallina's consent should be involuntary and the conjugal contract a Nullity Now if this be true and the Law it self says it That tum solum dissentiendi a Patre licentia Filie conceditur cum indignum moribus aut turpem sponsum ei Pater eligat If the Law allow a Daughter to disobey her Father's commands proposing a Huband to her only in such Case then if he chuse and propose a Person better qualified and no way unworthy of her and give his consent and command that she shall marry him as the matter of Fact was in our Case then she is bound to obey him For if it be Lawful for a Daughter to disobey her Father onely when he proposes and unworthy Husband then when he proposes one worthy she is bound to obey him Seeing then the Husband propos'd to Gallina by her Father was no way unworthy of her but she bound upon her Father's consent and command to marry him it follows Thirdly That her actual marrying him upon her Father's command and fear to displease him was an act of filial Obedience and Duty and therefore could not possibly vitiate her consent and make the conjugal contract involuntary invalid and as pretended a Nullity Nay Fourthly 't is certain that a Father hath a just Authority by the Law of God and Nature to consider and judge what is good for his Children and not only to command their Obedience but to use Threats and Menaces yea and Castigations and Whippings too to make them do their Duty and obey his just commands so our Heavenly Father commands us to obey his Laws useth Menaces threatens Death and Damnation if we do not and these Means he has appointed Threatnings as well as Promises to make us willing to do what he commands our Duty And therefore to say that such Paternal Commands and Threatnings whether of our Heavenly or Earthly Parents can be a just ground to make our consents to such commands involuntary which he has ordain'd to make us give a willing and voluntary Obedience is to Blaspheme his infinitely wise Providence and to say that the means which he has appointed to produce a willing and voluntary consent in us to obey his Commands and do our Duty has a necessary and contrary effect and makes them involuntary So that it being granted that Gallina's Father commanded her to marry Patrimoniale and to make her to do it added many and severe Threatnings for fear of which she did and without them would not have done it marry him this may prove that in those circumstances and to avoid her Father's displeasure she willingly made that conjugal contract but neither is not can be any ground to prove that her consent was involuntary and so the contract in valid as is pretended and a Nullity Fifthly And this may further appear that such Actions are not involuntary by the consent of Christendom thus In the Primitive Church and times of Persecution some Christians suffer'd Imprisonment and many Torments for their Religion yet at last for fear of Death threatned by their Pagan Persecutors they offered Incense in the Idol Temple and yet all those Imprisonments Torments and Threatnings of Death did not make that act of theirs Involuntary for then it had not been Sin peccatum utique non est peccatum nisi sit voluntarium and yet the Church and Christian World judg'd it to be a great Sin and Ecclesiastical Punishments and long Penances were imposed on them for it as appears by the for it as appears by the Antient and approved Canons Now if all these Sufferings and Fears of present Death did not make their act of Sacrificing in a Pagan Temple Involuntary then neither will the like if any such had been make Gallina's act of marrying in a Christian Church involuntary nor consequently invalid and a Nullity Sixthly But let it be further granted that Gallina was unden very great force and fear from her Father as is pretended and that that force and fear was of such a Nature and Degree as the Canon and Civil Laws judge sufficient to make a conjugal contract invalid and a Nullity Yet seeing in this case Idem est non esse non apparere till this do legally appear by just proofs no judge can as least none should give sentence for a Nullity nor can Mr. Cottington with any Security Quiet or Peace of Conscience Co-habit with her as with his legal Wife And in this and such other Matrimonial Cases of Nullity and Divorce our
Consistory I know it passes for good Law and Divinity among the Popish Casuists and Schoolmen that the People are bound to believe their Bishop even then when he preaches Heresie And are so far from sinning in doing so that their submission to the Bishop and believing errors when taught by him is Meritorious It is a Cardinal who tells us Si rusticus circa Articulos fideì credat suo Episcopo proponenti aliquod dogma Hereticum meretur in Credendo licet sit Error quia tenetur credere donec ei constat esse contra Ecclesiam And before him our Countryman and he a famous Schoolman tells us to the same wild purpose Si audiat prelatum praedicantem propositionem erroneam quam nescit esse erroneam credat ei non peccat sed tenetur errare quid tenetur ei credere meretur volendo credere errorem tum simplicitas ignorantia excusant Nay such an ignorant person believing an Error which the Bishop has preached and proposed as a Truth and Article of Faith if he be put to Death and die in defence of that Error which he believes to be an Article of Faith he shall be a Martyr and have the honour and merit of Martyrdom Concedo si interficiatur pro tali errore quem credit esse articulum fidei potest adipisci meritum debitum martyrî quia error invincibilis non diminuit de merito But however this anciently did and at Rome still does pass for Catholick Doctrine with the Pope and his miserably inslaved Party yet the Church of England and all her true Sons believe and know it to be a prodigious and stupid Error Eighthly That our King and Bishops have power to question that Archbishop's or any such Sentence and when our King or his Subjects are concern'd if upon a just Examination they find it for want of Truth or Justice faulty they may justly condemn and reject it This is I believe evident For our Kings and Church of England de facto jure have question'd condemn'd and rejected Sentences of greater Popish Consistories than that of the Archbishop of Turin I mean Sentences given by the Pope himself in his own Consistory and his general Councils Of this we have a hundred Instances I shall for your satisfaction set down three or four thus First Pope Julius the Second Ex plenitudine potestatis certâ scientiâ c. Grants a Dispensation for Hen. 8th to marry the Relict of his Brother Arthur and declares the Marriage to be just and lawfull and yet Hen. 8th and his Bishops b did and justly might afterwards examine the Papal Sentence disobey'd it and declared it Null Secondly Pope Paul the Third Venerabilium fratrum Cardinalium consilio consensu gives Sentence and declares for a general Council and by his Bulls summons it to meet at Mantua then at Vincentia and then at Trent But Hen. the 8th and his Bishops and Parliament having seen those Bulls containing the Pope's Sentence and Decree for and Summons of a general Council at several times and to several places they did not only question his Sentence and Summons but condemned though they were Papists and absolutely rejected it shewing the many Nullities of that Summons and added their Protestation which they made good that they were neither bound nor would obey it as is evident by an Epistle of Hen. the 8th to the Emperor and all Christian Kings and in a Tract containing the Sentence of the King and Parliament and their Protestation against the Pope's Sentence for and Summons to that Council Thirdly When that Trent Council had met and sate eighteen Years made many Canons and Constitutions particularly about Matrimony and pronounced many Anathema's against all who did not believe and obey them The Bishops of England were so far from thinking that they had no power to question those Synodical Sentences and Constitutions that they have constantly and publickly Preach'd and Writ against them and proved them to be in many things erroneous impious or idolatrous Have the Bishops of England power to question and condemn the constitutions and synodical Decrees of the Pope made in his own consistory and his general Councils and have they no power to question one single Sentence given in a consistory of an inferior Archbishop Credat Judaeus Appella Fourthly Pope Paul the Third Habitâ cum Cardinalibus deliberatione maturâ de illorum consilio assensu by a solemn Sentence Excommunicates Hen. 8. Deposes him absolves his Subjects from their Oaths of Fidelity c. So Pope Pius 5. sub eadem formâ Excommunicates and deposes Queen Elizabeth And when some honest and loyal Papists had under their hands signified their b opinion 1. That the Pope could not absolve Papists from their Oath of Allegiance to a Protestant King 2. That he could not Depose and Murder Excommunicate Kings c. I say when this was heard at Rome Pope Innocent the 10 th with his Sacra Cardinalium Congregatio passes a damnatory Sentence and condemns the true opinion of those loyal Papists as heretical declarat subscriptores in poenas in sacris Canonibus Constitutionibus Apostolicis contranegantes potestatem Papae in causis fidei incidisse Now pray ' ask those Gentlemen whether the Bishops of England have not power to question the aforesaid Solemn and Judicial Sentences of the Popes for excommunicating deposing and murdering Kings If they have such power and may question the Pope's judicial Sentences given in his own Consistory or his General Councils then certainly they may much rather question Sentences past in any Archbishop's or inferior Consistory But if they say what I suppose they will not I am sure they should not That we have not power to question such Sentences they must pardon my incredulity if I neither do nor can believe them to be Protestants or true Sons of the Church of England but rather Jesuited Papists for I know none save such who do or dare say That such impious and traiterous Sentences given by the Pope in his Consistory or Councils may not be question'd by any Authority in the Church of England Is it possible that any Protestant nay any honest Papist should seriously think that a Sentence of the Pope to depose a King and absolve his Subjects from all Fidelity and Allegiance to him should be such as is not to be question'd by the King his Bishops or any loyal Subjects If so good night to Monarchy and all the royal Rights of Kings the Pope may when he will depose and deprive them of all their Jura Regalia and their Subjects though by the Law of God and Man obliged to it must not assist them Ninthly It is to be considered That our present Case is an Ecclesiastical not a Civil Cause concerning the Validity or Nullity of a Matrimonial Contract which both by our Laws and those of
Rome too is of Ecclesiastical Cognizance Now there is both in Law and the nature and the consequences of them a great difference between Ecclesiastical and Civil Causes Many instances might be given but being not my business I shall only set down two or three thus First Had it been an action of Debt and the Sentence at Turin had been that Mr. Cottington should pay 500 l. to Gallina Admit also that no such Debt was due and so the Sentence unjust and admit that at Gallina's instance that Sentence had been confirmed and executed here in England and Mr. Cottington compelled to pay that Summ. It might be a peice of injustice and a sin in the Judge to sentence him to pay what was no way due But as to Mr. Cottington it might be his Calamity being compell'd to pay what he did not owe but his crime it could not be It could be no sin in him compell'd by his Judge to pay that Money though indeed it was not due For he might lawfully have given Gallina so much Money without and before any compulsory decree and that decree could not make it to him unlawful But in our present Matrimonial Case it is far otherwise For if there was no Nullity in the Contract and the Sentence at Turin unjust and if upon that Sentence it be decreed here that Mr. Cottington shall Co-habit with Gallina here obedience to that unjust Sentence will not only be his Calamity but his Crime because in this Case he Co-habits with another Man's Wife and is guilty of Adultery Nor will the Judge's Sentence requiring such Co-habitation any way excuse him And on this consideration it highly concerns the Judges in this case to be assured of the Nullity least they sentence Mr. Cottington to Co-habit with another Man's Wife and so to sin and commit Adultery But if they do quod absit it as highly concerns Mr. Cottington to obey God rather than Men and though he suffer for it here rather disobey an unjust Sentence of an earthly Judge than the eternally just Judge of Heaven and Earth and suffer for it for ever hereafter Secondly The Church of Rome has Ecclesiastical Laws particularly about the Validity and Nullity of Matrimonial Contracts which neither are nor ought to be approved by the Church of England For 1. They admit the Oaths and Confessions of the parties desiring Sentence for divorce or Nullity and so it was in our present case which the Church of England admits not 2. It is their generally received opinion that although the Matrimonium be indeed ratum yet a Papal Dispensation may dissolve the vinculum conjugale and so induce a Nullity Dico saies a great Popish Casuist Matrimonium ratum posse dissolvi per Papae dispensationem And for Proof of it he cites five Popes did dispense with such Marriages and then adds Quod Gregorius Papa 13 Unica die cum undecim Matrimonijs ratis dispensavit And further tells us out of Sanchez of no less than fourty nine Divines Canonists Summists c. cited for the same opinion and he might have cited as many more and then he himself from their own received Principles fully proves it Now it highly concerns Mr. Cottington and his Judges too to know on what grounds the Archbishop of Turin gave Sentence for a Nullity For if it was only on the aforesaid Reasons and Popish Principles no Bishop or knowing Casuist of the Church of England will or can admit that Sentence to be just or grant a Nullity on such Grounds or sentence Mr. Cottington to Co-habit with Gallina her former Husband yet living and no just ground of any Nullity in their Matrimonial Contract appearing Thirdly The Laws of England concerning all Ecclesiastical particularly Matrimonial Causes are express forbidding all persons whoever they be inhabiting or resiant in this Kingdom to make use of or excuse the Judgments or Sentences of any Foreign Person Court or Judicature and requires upon pain of a Praemunire that all such Causes be tryed and finally determin'd within this Realm by our own Laws and Judges The words are thus If any Peron Inhabitant or Resiant in this Realm or any other of what condition soever at any time hereafter for any of the Causes aforesaid Matrimonial causes are expresly forenamed do procure from Rome or any other Foreign Court out of this Realm any manner of Foreign Process Sentences or Judgments of what kind soever or execute any of the same or do any Act c. such persons shall incurr a Praemunire I understand not Law and therefore referr this to you and those who do Only I observe 1. That the Word in the Statute is not Copulative If any Man do Procure and Execute and do any Act c. but Disjunctive If any Man Procure or Execute or do any Act c. That is if any Man do any one of those particulars mention'd if he either procure such Foreign Sentences or Execute or Abett and Assist c. Though he do not all yet he is liable to the punishment appointed by the Statute 2. That the end of the Statute is to provide against the damages and greivances of the Subjects of England and therefore forbids all Appeals to any Foreign Court Prelate or the Pope or to bring in any Foreign Process Sentence or Judgment given in any Foreign Court whatsoever And this is one reason of the Prohibition which the Statute doth instance in because neither the necessary proofs nor the true knowledge of the Cause can neither there be so well known nor the Witnesses there be so well examin'd as within the Realm so that the parties grieved by means of the said Appeals be most times without remedy So that though the Title and Epigraphe of the Statute be against Appeals to any Foreign Judicature yet in the body of the Statute the bringing in and executing of any Foreign Process Sentence or Judgment are equally forbid Thirdly Now for Gallina no Subject of England though now resiant here to bring in a Sentence of a Foreign Court and though the Proofs or Reasons of it be utterly unknown to plead it and have it without Examination executed to the Irreparable damage of a Person of Quality and a native Subject of England this seems to me to be against the true intent and meaning of this good Statute To conclude I do and must confess that of the Laws I have ventur'd to cite Law being none of my Profession I am no competent Judge and therefore begging your Pardon for my mistakes and medling with them I referr them and my self to You and the Learned Gentlemen of the Long Robe who best understand them who can I know easily discover my mistakes and will I hope without any severe Censure pardon them But for the Theological part of the Controversie and the Case of Conscience wherein his Judges in the Ecclesiastical Court and Mr. Cottington are concern'd this being within the
the Index of a Manuscript of Collections by Sir Julius Caesar Fol. 277. is referr'd to under his own hand in which Fol. is contain'd as followeth The Book is markt on the outside A. A. 10. UPon the Treaty with Gray Lord Chandois it was thought meet that 16500 l. should be alloted to the Lady for her right to the value of 14500 l. in Land and 2000 l. in Money But in regard the whole Estate moved from the Lady and that Sir John was able to give her no Advancement or Dower out of his Estate it was thought meet that the Lady should have 8000 l. at her sole dispose and the residue to be at their joint dispose After upon motion on the Lady's behalf out of a fear that the Estate might be wasted by Sir John and thereby she deprived of maintenance she then having on knowledge of the Marriage in Scotland or hope of a Divorce or Nullity of the said Marriage it was appointed that the same should be conveyed over to certain Feoffees in trust to her use that she by her Indenture under her Hand and Seal solely and without Sir John might dispose thereof The which conveyance was directed by three living of this Honourable board viz. The Lord Treasurer the Lord Privy Seal and the Lord Stanhope and by the Lord Popham Lord Tanfield Sir Thomas Hesketh Serjeant Dodridge and Mr. Stephens The Land allotted the Lady being sold for 7800 l with 6500 l. thereof Barn-Elmes was purchased but Sir John being trusted by the Lady to go to Mr. Stephens to draw the conveyance went to other Councel and in the clause where it should be freely at the Lady's disposal solely without Sir John he caused to be inserted these Words That the Lady should have power to convey the same to such intents and purposes as by the said Elizabeth solely and without the said Sir John Kennedy by writing under her Hand and Seal enrolled should be limitted and appointed Wherein besides the contradictariness of the Sence he caused in that Deed delivered the Lady the more to blind her Eyes enrolled to be razed and made indented Deed. 31. Decemb. 3. Jac. And after the Rasure was found out then by his Deed Dat. 2. Julij 4. Jac. he the said Sir John did limit power to the Lady by her Deed inrolled or not inrolled to limit uses The Lady hath been a Suiter two years if Sir John for saving his own Credit will not confess matter to make a Divorce then that in course of Justice she may be admitted to her proof which for that it concerneth matter of State as is suggested she is denyed 1. And therefore she hopeth it is but the same equity to stay his proceeding touching her Estate against her or her Feoffees in Course of Justice considering it is not by her lachess that the Marriage is not disproved untill both the said causes having a dependency one upon another may be handled at this Board 2. The course of Conveyance by Feoffees was by Honourable Personages Grave Judges and Learned Lawyers directed when the Lady was supposed the true Wife of Sir John and they held in Law and Equity sufficient and now à fortiore it should be more sufficient she being none of his Wife if she may be admitted to proofs 3. Sir John hath already advanced himself by the Sale of the Lady's Estate over and above the purchace of Tonbridge which cost 8500 l. wherein he hath a a joint Estate of Inheritance and all her Debts that he hath paid 7500 l. 4. If the course propounded at this Honourable Board shall not hold then will the Lady never assent to Sell and so shall the Debts of the Lady before Marriage now resting unpaid being 2207 l. and Sir John's own Debts rest unsatisfied to the oppression and clamour of many poor Men and the King still troubled with renewing his Protections 5. If Sir John should proceed in course of Justice and that the conveyance made to Feoffees should not be held sufficient and strong enough to convey the same to the Lady yet Sir John can have but the profits thereof being but 300 l. per annum and not that clear which is not able to pay half the use of the Money 6. Besides before any Sute began the said Mannor of Barn-Elms was for valuable consideration of Money lent Mortgaged and now resteth forfeited for Non-payment of 2000 l. In the Index of Sir Julius Caesar's Manuscript of Collections Fol. 280. is under his own Hand referr'd to in which Folio is contain'd as followeth The Book is markt on the outside A. A. 10. 'T is in the Index writ with his own Hand in relation to Fol. 280. Whether an English Jurisdiction may disanull a Marriage solemniz'd in Scotland A. B. a Scotchman in a Parish Church in Scotland publickly in the presence of the Congregation solemnizeth Marriage with a Scotchwoman About six or seven years after the said Marriage the Scottish Woman pretending that at the time of her Marriage she was but Ten years Old or at the least under Twelve before certain competent Judges in Scotland procureth a sentence of Divorce to be given against the said A. B. whereby the Marriage between A. B. and her was pronounced to be void and of no force and that she was at liberty to Marry again to any other upon this ground That she was under Twelve years of Age at the time of her Marriage and that she never consented thereto after she was Twelve years Old nor had Carnal knowledge of the said A. B. from which Sentence no appeal or provocation was made Afterwards the said A. B. coming into England did solemnize Marriage with an English Woman the Scottish Wife being then living after which marriage the said A. B. and the English Woman for certain years Co-habited together here in England as Man and Wife the said English Woman being ignorant of the premisses done in Scotland During the time of which her Co-habitation with the said A. B. the Scottish Woman dieth After whose death the English Woman being certified that A. B. had another Wife living when he married her so as he could not be her lawful Husband at the time of her Marriage the said A. B. and she dwelling both in England she refraineth from the company of A. B. and complaineth to the Ecclesiastical Judges in England having Jurisdiction in the place where the said A. B. and she dwelleth and craving Justice offereth to prove that the said A. B. and the said Scottish Woman were lawfull Man and Wife and after the said Marriage had Carnal knowledge of each other and that they Co habited together as Man and Wife five or six years after she was Twelve years of Age admitting she had been under that Age at the time of the Marriage and desireth to be admitted judicially according to the ordinary course of Law to alledge and prove her aforesaid Assertions before the said Judge and upon proof thereof to
as Man and Wife and separate them from their second Spouses If it be objected That the Sentence was given in another Country where the Judges of England have no Jurisdiction and in an High-Court from whence there lieth no Appeal and that the Judges of England have no Superiority to call their Sentences in question and that therefore the Lady cannot call that Divorce in question here We answer That the principal cause in this case of the Lady's is not to reverse or call in question the Sentence given in Scotland but the principal Cause here is Whether her Marriage made in England with Sir John be of Validity or no For that as we say Sir John had another Wife living viz. Isabel Kennedy at the time of her Marriage without any mention to be made by the Lady of any Sentence of Divorce given in Scotland against which our Allegations if Sir John object That he was Divorced from her by Sentence in Scotland this question of the Divorce is brought in but incidently by Sir John in this Cause and also vainly and impertinently if it can be proved that the truth is contrary to that Sentence for that Sentence is in Law meerly void and cannot Barr the Lady for the reasons before alledged and for that Ecclesia was decepta in giving of that Sentence Now when a Sentence which is void in Law and especially against a Marriage is called in question but incidently before any Judge whatsoever though an inferior in a Cause which doth principally belong unto his Jurisdiction that Judge may take knowledge of and incidently examine the validity of that Sentence whether it were good or no by whom and wheresoever that Sentence was given though he were never so Superior a Judge not to the end to reverse or expresly to pronounce that Sentence to be void or not void but as he findeth it by examination of the Cause to be good or void so to give Sentence accordingly and determine the Cause principally depending before him without ever mentioning the erroneous Sentence in his Sentence Neither can the Sentence given here for the Nullity of the Lady's Marriage upon other matter than was pleaded and proved before the Judges in Scotland although the same Sentence had been principally called in question and directly pronounced to be void any ways impeach the Justice of Scotland for sith Judges in all Courts and Causes must judge according to that which is alledged and proved before them what impeachment is it to the justice of any Judge although his Sentence be revoked and a contrary Sentence given by another Judge when the parties between whom the Sute is either cannot or through negligence or collusion will not alledge or make such proof before him the first Judge as they might but afterwards before the second Judge good and sufficient proof is made a matter which falleth out every day here in England in every Civil and Ecclesiastical Court upon appeal made from one Court to another and the like falleth out in all other Countreys and yet the former Judge whose Sentence is revers'd thinketh not himself any whit impeached of injustice thereby That the absurdities which would ensue may by example more plainly appear if the Law should not be as we say Put this Case A Widower in the confines of England towards Scotland marrieth a Wife in a Parish-Church publickly in the presence of a hundred Witnesses and afterwards they live together by the space of a Year and have a Child at the years end upon some discontentment they both being desirous to be rid the one of the other the Woman in England sueth her Husband to be Divorced from him pretending that at such time as he married her he had another Wife living and produceth Witnesses which prove that he had married another Wife before he married her and Paradventure make some probable shew that that Wife was living when he married his second Wife who in truth was dead before as the Man could have plainly proved by twenty Witnesses if he had listed notwithstanding the Husband being willing to be rid of his Wife either would not plead that his former Wife was dead or else would not make any proof thereof Whereupon the Woman obtaineth Sentence against the Man whereby the marriage between them two by this collusion and error is pronounced void from which Sentence there was no Appeal or Provocation Now within a Month after this Divorce this Man goeth into the Confines of Scotland not ten Miles from the place where he and his divorced Wife formerly dwelt and there marrieth another Woman being ignorant of the former Wife and collusory Divorce and there Co-habiteth and dwelleth with her This Woman shortly after understanding of the premisses and that she could not be his lawful Wife but liv'd in Adultery with him desireth before the Judge in Scotland under whose jurisdiction they both dwell to be divorced from him and to be delivered from her adulterous living with him and offereth to prove all the Premisses most manifestly Were it not now a most absurd and abominable thing that this Woman should have no remedy any where but be enforced to live still in Adultery with this Man because the Sentence of divorce was given by a Judge in England pronouncing the Marriage between the Man and his second Wife to be void whereas it can be most manifestly and apparently proved that his first Wife was dead before his second Marriage and so the Sentence was given against the apparent truth And what impeachment of injustice can this be to the judge in England before whom it was never proved That the Man's first Wife was dead to have his Sentence reversed upon new proofs made before the Judge in Scotland Now between the Lady's Case and this Case there is no difference in truth of matter and point of Law only by reason of the multitude of the Witnesses the nearness of the time and place when and where these things in this case were done The truth thereof may more easily and readily be proved than in the Lady's cause it can but if the truth in her Case be proved though with more difficulty the Cases are all one If any Man shall yet doubt whether this cause can be heard and determin'd by the Ecclesiastical Courts in England it is desired That Sir John's Councel considering the Marriage was made here in England and the Lady and Sir John do both dwell here and by Law Sir John is not compellable to appear in any other place than England for this matter they would tell before what Judge this matter should be heard and determined For it is to be presumed that when two persons live in Adultery together and so in continual sin and the one of them seeketh redress and to be freed from that sinfull and adulterous life no Man will say That he or she shall be compelled to live notoriously in Adultery still and have no Judge at all to separate
them and remedy this enormity If further doubts be made how where or in what manner proof shall be made in this Cause it is said that this Question doth not concern the Question What Court or before what Judges the cause shall be heard and determined but to this it is answered That the proofs shall be made in such manner as they be ordinarily in all other Cases that is by the Answers of the contrary Part upon Oath by such Witnesses as they can procure voluntarily to come before the Judges here from whence or out of what Countrey soever they can procure them If they will not come voluntarily then if they be within the jurisdiction of the Judge and the party producent think so good he shall have Processes to compell them to come before the Judge if they dwell so far off as that it will be too chargable to bring them before the Judge then a Commission shall be granted to some Commissioners to examine them near the places where they dwell and this if they dwell within the Judge's Jurisdiction but if the Witnesses dwell out of the Judge's Jurisdiction in any other Place Realm or Countrey Then the Judge of the Cause may direct a Commission requisitory to the Judges of the Places or Countreys where the Witnesses dwell to intreat them to examine the Witnesses remaining there by their Authority and to send their Depositions to the Judges of the Cause also by the Records of other Courts or any other Instruments or Writings which may any ways further the Cause these being the ordinary and usual courses used for making of Proof in every Cause every Day and will not be denied by any acquainted with the Proceedings in any Ecclesiastical or Civil Courts Q. 1. Whether in the Tucin Process for the dissolution of the Marriage betwixt Frichinono and Gallina there appears so manifest a Collusion that if the said Process comes to be examin'd before our Court the Sentence for the dissolution grounded on that Process will be declared Void A. I am of Opinion in the Affirmative A Collusion as all other Clandestine Acts and Agreements is accounted by the Law to be Difficilis Probationis and therefore a direct Proof is not required but Conjectures and Presumption alone arising not only from what has been done but from what was omitted will pass for full and concludent Evidence ut per Felin c. Praeterea n. 2. de Testibus D. D. com omnes in c. Literis c. tertio loco de praesumpt Now there does not appear throughout all the Acts that the parsrea used any diligence to defend the Cause 'T is true there was the formality of a Proctor but he seems rather to be appointed to substantiate Proceedings on the other side than to defend the Marriage on this for that it appears by the Sentence there was nothing done on the part of Frichinono the words are Visis Actis ex parte Gallinae tum distributis Then 't is Gallina that is at all the expence though she obtains in her Suit and likewise gives an ample Reward of 100 Crowns in Gold to the Court for Testimonials Frichinono though in his Answer upon Oath he believes it to be a good Marriage and never knew of any such Aversion as is alledged yet he adds That if it shall be so determined he doth not dissent but that the Marriage may be declared Void and as he doth nothing in this instance so neither does he Appeal Now by these Omissions the Collusion appears which Collusion renders the Judgment Void but especially against a third Party and that it has been thus often determined in like manner Monoch Consil. 501. n. 8. 688. n. 35. Sententia inter alios lata etsi certis in casibus nocet id tamen intelligitur quando ille victus omnem adhibuit diligentiam ne vinceretur Atque ita constare debet eum bona fide litem pertractasse L. Si duo patroni F. De jurejur and. ita communiter Atqui nostro in casu non adhibuit ut ne vinceretur quia non modo non contradixit sed quodammodo consensit in that he declares he will not dissent Praeterea saith he culpa negligentia ejus detegitur quia à sententiâ latâ non appellavit ut fieri solet jure permissum est Et accidit quod haec omissio Appellationis est tacita quaedam jurium renunciatio quae alteri quam renuncianti nocere minimè potest sicuti in specie Baldus Salicet in L. 2. C. quibus res jud non nocet ibi Imo non appellans cum facere id debuit colludere cum adversario praesumitur L. Si servus plurium § Sed si anteF De Leg. Decius Consil. 306. n. 4. allique ibid. This was in a Civil Cause but the present Case is much stronger being a spiritual Cause ubi vertitur periculum animae and odious too in that it is for the dissolution of a Marriage which in consequence may occasion the Sin of Adultery in which there might have been pleaded many things as exceptions to the Persons of the Witnesses and their sayings But chiefly the Cohabitation with all its Circumstances and at last the Fear that is pretended is but Reverential Why what can be concluded from hence but that by such Artifice the Church is deceived and the Law in that Case is Quod quandocunque constiterit de errore retractabitur sententia c. Fraternitas de frigidis maleficiatis Q. 2. Whether the pretended proof of the Force and Fear she suffered from her Father in that Process be not insufficient in Law A. I am of Opinion that the Proof is insufficient 1. For that they are but single Witnesses nunquam probant etiamsi mille jungentur especially in Arduis such as are Criminal and Causes de matrimonio dirimendo But more especially where the presumption of Law is against it as in our Case if we Consider the Co-habitation with all its Circumstances 2. The matter deposed does not amount to such a Force as the Law takes notice of And 't is chiefly ex auditu either from her own Relation or the Father's or Brother's as they heard her say She had no Affection That she would not consent That her Father would Force Her Giacono Batta and Compeggio depose no more Rath Quaglini and Monfort say He told them so and she too but separate Galliero heard Dominico chiding and threatning but 't was but the Father told him 't was in the Business with Frichinono None but Cornelius swears to Knowledge and he to an uncertain time At Supper once she told her Father She would not consent for that she had no Affection for him Dominico then rose and gave her two Blows and when she was gone he said He would strangle her if she would not have him This is the substance of all the Evidence which certainly can make no concludent Proof either of the
create a new Marriage instead of that which was Null and Void for want of free consent but ratifie only and confirm the first or rather give us an assurance and demonstration that that was a free internal consent which was exprest in the Form of the Council notwithstanding those specious Pretences to the contrary whereby she would impose upon us and according to which we that can see no further than outwardly ought to have judged in Case there had not been these subsequent Acts and therefore undoubtedly there needs not a second Celebration in the Form of the Council when by thâ—se Acts we are assured that she gave her free consent in the First Ex coitu matrimonium praesumi si prius consensus verbis expressis sed propter causam aliquam vel impedimentum humani juris nullum praecesserat satis senim tacitè aliquo sufficiente signo novum consensum praestari says Parisius who was a Cardinal since the Council of Trent Q. 4. In Case the Council does authorise its Dissolution whether it does therein act contrary to the Law of God A. I 'll leave this question to the Divines but if that be Law I have said before then I think God has joyn'd them Q. 5. Supposing the Council of Trent does authorise its dissolution and that it does not act contrary to the Law of God therein whether according to the due and usual proceeding of our Courts and the Laws of our Nation where the Council of Trent was never received we shall or ought to allow of such a proceeding upon the account of a community of Rights or any other account whatsoever A. I am of Opinion in the Negative For however it may be in Civil Causes in point of Commerce or the like the Reason is not the same in Criminal or Matrimonial ubi vertitur periculum animae which may arise from the difference in Laws and Religions for 't would be strange Doctrine to assert That a Subject of England ought to be executed here upon a Sentence of Heresie in Rome and as strange to adjudge the dissolution of a Marriage here because it was not celebrated according to the form of the Council of Trent or rather as this Case is To force a Subject of England to Cohabit with a Woman who in the construction of the Laws in England is another Man's Wife for that is done by putting in Execution here a Sentence of Divorce which was given at Turin upon the Council of Trent which Council was never promulgated in England and when the Law is in Terms otherwise Hipol de Morsil singular 138. n. 2. Judex says he unius territorij mandat Executioni sententiam judicis alterius territorij c. Tene tamen mente quòd istud procedit quando Judex pronunciavit secundum leges non autem statuta ipsius loci tum alter judex non tenetur And therefore says Jason In executivis debent attendi statuta illius loci in quo fit executio non alterius secundùm Bart. omnes And further says Angelus l. Si ut proponi c. De execut rei Jud. Talis Judex alterius territorij potest de iniquitate talis sententiae cognoscere si viderit esse iniquam aut de hoc vehementer suspicaretur non debet illam executioni mandare And this is the common Opinion William Oldys I have read and considered the Answers given by Dr. Oldys to the foregoing Questions and do agree with him in Opinion Richard Lloyd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 DE JVDAEIS in Reipublica Christiana tolerandis vel de novo admittendis THE CASE OF THE JEWS TO this Question in short I say 1. That in Scripture we meet with a Jew in a Double Notion 1. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Corde 2. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Carne 2. For the First they are called Circumcisio Spiritualis in Spiritu The Second Circumcisio Carnalis in Litera De Judaeis Corde non quaeritur For so every true Christian is in Scripture called a Jew Rev. 3. 9. Rev. 2. 9. 3. For the Second Sort of Jews in Carne they are 1. Natione tantùm Judaei 2. Religione tantùm 3. Natione Religione simul Now the Question is only of a Jew in Religion of what Nation soever or of him who is a Jew Natione Religione simul Whether such may be admitted in a Christian Common-wealth In Answer to this Question I say That the Toleration or Admission of such Jews may be considered in a Twofold Relation 1. Respectu Reipub. 2. Respectu Ecclesiae 1. In Respect of the Common-wealth there are only Two Things properly considerable to a Statesman which may make their Toleration or Admission Legal or Illegal Convenient or Inconvenient according to the Nature and Condition of those Politick Considerations Now these Considerations are 1. Whether there be any Law of the State against such Jews being here for if there be then stante Lege they cannot legally be admitted And in England there is such a Law but that Law taken away and as the Supreme Power made it for good Reasons as they conceited then so the Supreme Power may possibly for better Reasons alter it now the State may readmit them Lege non obstante So that if the Supream Power abrogate that Law then t is manifest there is no Legal Impediment as to the Civil Law of this Nation but that they may if it seem good to the Wisdom of the State be readmited The Second Consideration as to the Political Part of this Question is the Damage or Benefit the Conveniences or Inconveniences which may accrue to the State by their Admission or Rejection Now as to this I shall add 1. That seeing the Law of Nature and Nations tell us that Salus Populi suprema Lex est if it appear to his Highness and his Council who only are Judges of this and not the People that the Common-weal will be advantaged by their Admission then no doubt they may and ought to be admitted 2. If otherwise they are not Now whether it be for the Benefit and Secular Advantage of the Common-wealth to admit the Jews I shall not Dispute but leave it to the Prudence of the State only I shall observe here Two Things 1. That whilst the Jews lived in England it was a vast Benefit to the Crown I shall give one Instance taken by my Lord Cooke out of the Records That from December 17. Anno 50. Hen. 3. till Shrovetide 2. Edvardi 1. which was about Seven Years the Crown had 420000 l. 15 s. 6 d. De Exitibus Judaeorum The Ounce of Silver was then but xx d. and now t is more than thrice so much so that as Money goes now The Crown had of the Jews in Seven Years above 1260000 l. such a Sum now might save Contributions 2. It appears by our Story that the Jews at their Expulsion and many times before were
of the Jews is in it self indifferent yet may be made morally good or bad according to the several Ends the different Limitations and Qualifications of their Admission First The Ends of their admission may be either 1. Civil 2. Or Sacred and Religious 1. For the civil end of their admission that is in general the Emolument and Benefit of the Prince and Common-weale And though Becanuâ— the Jesuite with a transparent piece of Hypocrisie condemn this end as unlawful it is evident that his great Jupiter Capitolinus of Rome as one said long since of some of his Predecessors makes this an end and a principle one two of their admission and if he had no greater Faults I should pardon this For Secondly 't is manifest that the Supreme Magistrate may justly make this one end of their admission For by his Place and Office there lies an Obligation upon him to preserve the Civil Interest of his Nation and the Good and Benefit of the Common-weal and may propose it as an End by all honourable and honest means to be attained Whence it is that all Princes protect and incourage Trading all Merchandizing and Manufactures 2. The Sacred and Religious End of their Admission should be the Glory of God and the Propagation of the Gospel in the Conversion and Salvation of their Souls And we are bound to endeavour this 1. By the natural Obligation of Charity as they are Men and so our Brethren whose Good we ought to promote especially that of their Souls by all honest ways 2. And more particularly as they are the Reliquiae of Gods own People concerning whom and their Conversion there are many gracious and glorious Promises in the Gospel and it will be an Happiness to us if we have an hand in it It was a Saying of Martin Luther Se propter unum Judaeum crucifixum omnibus favere Judaeis And if we love them and desire their Conversion and Salvation as in Christian Charity certainly we ought then the way to effect that will not be to banish them and prohibit their Habitation amongst us so compelling them to live amongst Turks Pagans or Papists The Images and Idolatry of which last hath undeniably been the greatest Scandal and Remora which hath long hindred them from being Christians Whereas if they be permitted to live amongst us that stumbling-block will be taken away 2. For the Conditions of their Admission for the Restrictions and Limitations to be put upon them a great deal of Caution and Christian Prudence is to be used lest while we pretend their Good we do Mischief to our selves For as to deny them all Liberty and Commerce with us may be an Act of unchristian and indeed inhumane Cruelty So to give them too much is an Act of Imprudence and Folly And indeed we find some sober Men not without good Reason complain of the too much Liberty they have in some Christian Common-wealths In short what Qualifications and Limitations are to be put upon them I shall not take upon me to determine but leave that to the Piety and Prudence of the State Yet with Submission I conceive such Limitations as these will be convenient if not necessary the rather because I find in our Histories in the Imperial and Canon Laws and in the old Capitulars and Canons of Councils that such Restrictions have been anciently laid upon them As 1. No Toleration ever was or de jure can be given them to profess or practice any thing against the Law of Nature 2. No Toleration should be given them to speak any thing blasphemously or impiously against Jesus Christ and the Gospel For though we may tolerate them in the Profession of a bad yet not in that Blasphemy of a good Religion 3. They never were nor should be permitted to circumcise Children of Christians or seduce any Christians to their Religion Let them prosess but not propagate their Religion 4. They were not permitted to carry any Office or Dignity in the Christian Common-weal though it seems that sometimes even that was permitted them 5. They were not permitted in any Suit or Difference between a Jew and a Christian to draw the Christian or his Cause before a Jewish Magistrate For 't is a ruled Case in the Imperial Law Judaeus Actor vel reus Forum sequitur Christianum 6. They were never permitted to make Marriages with Christians and the Glossator gives the Reason of it in Law Quia matrimonium debet esse communicatio divini humani juris Whereas a Jew and Christian being of different Religions cannot communicare in Sac is And this is consonant to the Law of the Gospel which forbids us to be unequally yoked upon which grounds I believe all Marriages with Papists to be unlawful that is Fieri non debuit 't is unlawful to make such Matches though that factum valet when such a Match is made the Contract is valid 7. Their frequent divorcing their Wives was tolerated For though Moses seem to suffer it yet the Emperours by express Edict forbid it 8. By the Imperial Laws Polygamy and plurality of Wives was not tolerated in them 9. If any of the Jews turn Christian by Civil Law in case the Jews endeavoured to reduce him and maliciously injured him they were to be burned for it 10. They might repair their old Synagogues but were not tolerated by the Roman Laws to build new 11. They were not tolerated to have any Christian Servants Nurses or Midwives Can. Praesenti 1. Extra de Judaeis Ex concilio malis conenti 12. By the Canon Law they might not come abroad on Good Friday 13. They were not permitted to wear Garments exactly of the Christian Fashion but were to have distinct Habits that all might know them to be Jews 14. They might not be Physiacians or give Physick to any Christian. 15. They were not permitted to be of the Roman Militia though they were permitted to be Advocates by the Rescript of Honorius and Arcadius to Romulianus P. P. 16. The Jews being the greatest Usurers in the World and believing they may justly take the highest Use they can get even Vsurae centessimae if they could have it of us Gentiles it is all the Reason in the World they should be limited in this particular and not permitted to take more of us than the Law permits us to take one of another 17. They should be enjoyned to admit of friendly Collations and Disputations sometimes about Gospel Truths and not obstinately to reject all means of Conversion and Conviction and Satisfaction of those seeming Reasons which keep them off from embracing the Truth For there will be little hopes or possibility of their Conversion if they be permitted obstinately to refuse all means of doing it But enough if not too much of this I shall only add one old Law concerning the Jews made before