done For the First notwithstanding what Erastus with his Followers and Selden of late have said I believe it to be a manifest Truth That in every Christian Nation there are or should be two divine distinct Powers 1. Sacred or Spiritual 2. Civil or Temporal In both which Powers we may consider 1. Principium a quo the Principle and immediate Cause from whence they flow and from whence they are derived to Men and thus the Temporal Power is immediately from God as he is the great Maker and Monarch of the World by whom Kings reign who communicates his Power and Name to Magistrates so that they are not only Rom. 13. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 his Delegates and Substitutes but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Gods too Psal. 82. I have said ye are Gods 2. The Spiritual Power is from Christ as Head of his Church his Father gave him All Power in Heaven and earth and some of that Power he hath communicated to his Apostles and Ministers who are his Ambassadors Pastors of his People and Stewards of his Houshold 2. Subjectum in quo the civil Power in the civil Magistrate the sacred Power in the Ministers 3. Finis in quem tendunt the one being ordained to procure our temporal Good here the other our eternal Good hereafter This premised I say That the Jews neither desiring nor intending to be Members of our Church but only of our Common-weal their Admission or Exclusion depends only on the Civil Power For the Command of the Common-weal as it is a civil Society being solely in the Civil Magistrate to him only it will belong to judge whether it be fit to admit or exclude them and to do accordingly 'T is true the Kingdom of Christ his Church is not a Temporal but a Spiritual Society which he rules inwardly by his Spirit outwardly by his Ministers Bishops or Presbiters or Pastors call them what you will who are his Ambassadours and Stewards who have a Law to rule by the Gospel of Jesus Christ. To these he hath committed the Keys of his House and Kingdom so that they and they only can admit Men into it by Baptism and exclude by Excomunication The end and use of a Key being to open and shut and these Keys committed to them they only have the use of them and according to the best of their Skill are to use them accordingly On which Principles it follows that the Jews neither being Christians nor for ought appears intending to be their Admission or Exclusion no way belongs to the Spiritual Governours of the Church their sacred Jurisdiction being only over the Houshold of Faith the Christian Church of which the Jews are no part and therefore not under that Jurisdiction So that I doubt not but the Admission or Nonadmission of the Jews belongs only to the Civil not Sacred Power 2. The Second Query is In what things they are to be tolerated And to this I say 1. That there is an Antithesis and Opposition between Approbation and Toleration of any thing so that in propriety of Speech we approve good tolerate bad things And then when the Question is about the Toleration of the Jews we suppose that there is some evil in them which for some Reasons some Ends and Purposes is to be tolerated in our Christian Common-weal 2. That evils may be of two sorts 1. Such as are against the Law of Nature 2. Such as are against positive Law that we usually call the Law of Nature this the Law of Scripture both Divine For in this Case the humane Laws come not in Consideration For if it please the supreme Magistrate to admit them by a Law then all humane Laws of this Common-weal if there be any against them are ipso facto null and abrogated And so their Admission the will of the State legally declared for it being supposed cannot possibly be against any positive Law of this Common-weal 2. Now then for the first sort of evils such as are against the Law of Nature and are intrinsecè ex naturà suà mala these no Magistrate may tolerate The Obligation of the Law of Nature is so inviolable that God himself in all the Old Testament never gave any Dispensation of that Law nor Toleration of any sins against it much less can the Civil Magistrate who is but his Vicegerent and Deputy and neither hath nor can have any Commission to do more than his great Lord and Master 'T is true the Magistrate is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Gods Minister and Vice-gerent and so Custos utriksque tabulae armed with the Sword of Justice which he must not bear in vain but is bound by his place and that sacred calling he carries to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Revenger of such Sins and a Punisher of Malefactors against the Law of Nature And that we may apply this in Hypothesi to our particular Case of the Readmission of the Jews I say 1. That in the Law of Moses and the whole old Testament there is nothing contained to the contrary or repugnant to the Law of Nature 2. That this Law of Moses and the old Testament is or at least should be the adequate rule of the Jews Religion and therefore so long as they keep to this there is no thing in their Religion which is intollerable on this Account as being against the Law of Nature 3. But if there be any thing in their Religion as now they profess it superinduced by Error or Custom which is indeed against Jus naturale that should not be tolerated in this or any Christian Common-wealth And if the Christian Magistrate tye them to abstain from all Idolatry Blasphemy Murther Adultery and all such other Sins against the Light and Law of Nature he tyes them to no more then they in their flourishing State of their Common-weal ty'd others For though they did not require of their Proselytes those of the Gate I mean to submit to the positive Law and Precepts of Moses yet they did universally require of them to abstain from Blasphemy Idolatry and all natural Injustice as is manifest in Josephus the Sacred Text it self and their Rabbinical and Talmutical Writers So that if Christian Magistrates do as indeed they should denie any Toleration of such unnatural Enormities they have Reason to rest satisfied with it seeing no more is denied to them in ours than they denied to others in their Common-wealth Dub. But it must be said Vsury Boligamy and the Marriage of a Sister was by the Law of Moses permitted to them and therefore the Practicers of some things against the Law of Nature Sol. To this I say 1. That 't is true that Aristotle and divers other Philosophers conceived Usury to be against the Law of Nature and many Divines of eminent Note have thought and published their Opinions to the World That both Vsury and Poligamy and marrying a Sister are so too Yet
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
that Archbishop nor the Pope himself though the Jesuites and some Canonists be of the contrary opinion pretend to be infallible And once more as the definitive Sentence of any Popish Archbishop or of the Pope himself in his Consistory or in a general Counsel can be no good President or just ground to warrant any Protestant Judge or Court to judge accordingly or any legall Barr or Let to hinder them to give a contrary Sentence so sure I am that no such Sentence given by such Persons and Judges in any of their Courts Consistories or Counsells can be a sufficient ground for Mr. Cottington to relie upon to give stisfaction and quiet to his Conscience so as to secure him that he may safely and without sin Co-habit with Gallina as with his Lawfull Wife only because they have pronounced her Marriage with Patrimoniale to be a Nullity For besides that he has many Reasons if they may be heard as in Law and Conscience they ought Reg. Nullus 20. de Reg. Juris in 6. to suspect and deny that Sentence and to believe it illegall and injust The thing is evident because definitive Sentences given not only in Inferiour but in Superiour Courts and General Councils are so far from giving satisfaction to Protestants or Papists or quieting their Consciences in a belief of what is in such Sentences judicially defin'd that in many things they actually dissent and confidently deny such Definitions so it was the Definitive Sentence of a Popish Convocation and Parliament in the time of Hen. 8. that the King was Supreme over all Persons and in all Causes Ecclesiastical and Temporal and that the Pope had no power in England yet the Sentence of those two great Courts each Supreme in its kind give little satisfaction to our Papists now who absolutely deny such Supremacy So the Convocation and Parliament in the beginning of Queen Mary's Reign by their definitive Sentence Establish Popery here in England which gave as little satisfaction to Protestants who did both believe and know that the Religion Established was Erroneous and therefore the Establishment by the Law of God and the Gospel unwarrantable and unjust In short the adequate and only rule of Conscience which can satisfie and quiet it and on which it may securely relie for sure Directions is the will of God made known to us lumine naturae aut scripturae by natural Reason or Divine Revelation in Scripture For what ever can be made appear to us by clear and convincing Reason grounded on Nature or Scripture de faciendâ aut fugiendâ this may and will satisfie and secure our Conscience so that we may innocently act accordingly but otherwise no Sentence of any Man or Court Ecclesiastical or Temporal can do it unless the Reasons of such Sentence be and appear to be sufficient And this brings me to the second Medium express'd in the Case to shew the Marriage of Patrimoniale and Gallina to be a Nullity The reason alledged in the Case as the ground of the Archbishop of Turin's Sentence and of the Nullity of the said Marriage is this That Gallina was under a Force and Fear caus'd by her Father by reason whereof her consent was not voluntary as by Law it ought to be and therefore the Matrimonial contract for want of such a voluntary and free consent invalid and a Nullity But thisreason is too weak and altogether insufficient To be a just ground either first of the aforesaid Sentence of Nullity or secondly to secure and quiet the Conscience of Mr. Cottington it he obey'd that Sentence and should Co-habit with Gallina as may appear if we consider 1. That 't is the avow'd Judgment of a Person Eminent for his great knowledge of all Learning especially of the Laws that no Fear how great soever humane Constitutions secluded does make the actions which proceed from it Involuntary so as to hinder their Obligation and Validity For he who promises any thing for fear which otherwise he would not have done is yet oblig'd to make good his promise 2. His reason is because he or she who consents and promises any thing for fear does indeed and actually consent and promise and that absolutely and not upon any condition This he further proves by the Authority and an instance of Aristotle who saies That he who in a Storm at Sea casts his Goods over Board would be willing to save them on this Condition if he might escape Shipwrack but in those Circumstances and Danger he is then in he is absolutely willing to loose them and cast them into the Sea Nor is it Aristotle only and Grotius who say this but all the Scholiasts and Commentators on Aristotle both Greek and Latine which I have yet seen say the same thing And then if the Authority and Judgment of so many and so learned Men be valuable as no doubt it is fear as is pretended does not make those Actions whose Principle it is involuntary and the truth of this is further and beyond dispute evident 3. Because Fear is the Principle which makes such Actions voluntary and the Person under such fear willing to produce them For t is evident that there is nothing which makes a Man in a Storm willing to cast his Goods into the Sea but the fear to loose his Ship and his Life if he do not so Nay secondly so far is fear from making our actions Involuntary that the greater the fear is they are by it made more voluntary for no Man before he was in fear was ever willing to cast his Goods into the Sea but after the Storm and his Danger and so his fear begun his willingness to loose his Goods and save himself begun too and as the Danger and his Fear increased so proportionably his willingness to cast away his Goods and when his Danger and Fear are come to the height then and not till then he is absolutely willing to cast them into the Sea and makes hast to put that will in Execution being as really desirous and willing to loose his Goods as by so doing to save his Ship and himself so that if fear made our actions Involuntary then the more the fear was they would be more Involuntary whereas the contrary is evident that as our fear increaseth so our willingness to do those actions which procede from it 4. The fear and force Gallina pretends to make her contract with Patrimoniale a Nullity was from her own Father It is pretended her Father forc'd her to consent whence it appears that she had her Father's consent and command to marry him and may be many and severe Threatnings too if she did not Marry him Whether this was so or not I know not but if it was so yet this neither did nor by any Law of God or Man could make her Matrimonial contract a Nullity First That any Law of God Natural or Positive should make the consent command or threatnings
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
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