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
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-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-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
beholden to Hierome Grotius and Justellus for it that such an Heretick as the Apostle here speaks of might be known well enough and punished too 4. That this may appear I say 1. That the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 here is as all know vox mediae significationis sometimes taken in a good sometimes in a bad sense The several Sects of Philosophers were anciently called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hippobotus writ a Book de sectis seu Haeresibus Philosophorum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. So Christianity is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by St. Luke And 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the same Luke signifies the Heresie or Sect of the Pharisees On the other side sometimes it is taken in the worse sense See Gal. 5. 20. Heresies are reckoned amongst the works of the flesh and in this of Titus also 2. Concerning Heresie in the worse sense I believe it true which Grotius observes Ubi Haeresis in malam partem sumitur significat idem quod 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nisi quod illa generalitas 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 voce 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 limitatur ad eas partes quae fiunt ex opinionum diversitate Est ergo Haereticus hîc is qui per opinionem de Ecclesiâ partes facit He is an Heretick here in the Apostles sense who not only imbraces and maintains an erroneous opinion but makes a schism in the Church by separating himself from the Communion and drawing others after him and so disturbs the publick peace This is the opinion of Grotius and Justellus and long before them of St. Hierome Inter Haeresin Schisma hoc interesse arbitramur quod Haeresis perversum Dogma habet Schisma propter Episcopalem Dissensionem ab Ecclesiâ Pariter separet Quod quidem in principio aliquâ ex parte intelligi potest diversum caeterum nullum Schisma non sibi aliquam confingit Haeresin ut rectè ab Ecclesiâ recessisse videatur In his opinion Heresie and Schism do both agree in this that they make a rent in the Church Pariter separant and so break the bond of Peace and Ecclesiastical Union Whence it is that the Apostle calls him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 self-condemned so we render it amiss I believe for the Apostle speaks of such an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as men may know see and be sensible of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. knowing that such an Heretick is subverted being 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 not self-condemned for who is so none does or can know It being impossible for any man to know when an Heretick maintains his Heresie against the light of his own Conscience none being able to know that save he who knows the heart And therefore I conceive that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 here should be rendered à seipso separatus rather than à seipso condemnatus One that broaches an error and separates from the Church This self-separation may be known but self-condemnation cannot and therefore the Apostle speaks not of this but that And I am the rather induced to be of this opinion 1. Because the word will very well bear this signification for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 whence 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 comes originally and properly signifies seccrno separo as well as judico And if Stephanus mistake not to separate is the prime signification of it 2. Because I find Justellus and Grotius of the same opinion Grotius on these words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saith thus Non dicit Excommunica nam ipsi ultro Communionem deserunt And St. Hierome more fully Propterea à seipso dicitur damnatus quia fornicator homicida adulter caetera vitia per sacerdotes de Ecclesia pelluntur Haeretici autem in semetipsos sententiam ferunt suo arbitrio de Ecclesia recedentes c. So that in St. Hierom's opinion the Heretick Saint Paul speaks of is such a one who besides his Erroneous opinion is Schismatical and not only makes a separation from the Church himself but seduces others to the disturbance of the publick peace which crime is visible and confessedly punishable However t is certain we may know and avoid all familiarity with such a person which is all which that Apostolical Injunction Haereticum devita signifies And so much for that passage in St. Paul 3. For the practice of the Primitive Church in punishing those they call'd Hereticks with Excommunications I confess t is true they did so But then 1. It will not hence follow they did well and justly in doing so Afacto ad jus non sequitur argumentum We cannot infer Illos justè fecisse ex eo quod fecerint Nay he that reads the ancient Church-story will find that even those ancient Christian Bishops though otherwise good men were oft times too precipitate and passionately hot and fierce against their Brethren and too free of their Anathematismes and Excommunications although they were not then come to the now practised Popish cruelty of confuting Hereticks with fire and faggot As is evident in that famous story of Pope Victor to omit others Excommunicating the Asian Bishops for their Observation of Easter though no Law of God or man obliged them to keep it otherwise than they then did 2. Yet I grant that the Church anciently did and still justly may punish an erring person with Excommunication altho they cannot be certain how far and in what measure such persons err culpably and yet neither Church or State can justly punish such persons with loss of Livelihood Liberty or Life So I suppose an Arian or one who denies the Resurrection though otherwise peaceable neither separating himself nor factiously seducing others may justly be Excommunicated by the Church because he does not keep the Conditions on which he had the Christian Communion He that has the grant of any Communion Sacred or Civil upon Conditions cannot be Excommunicated justly while he keeps those Conditions but if he do not then conditione non praestitâ he may be justly Excommunicate Now Christians anciently and in ours and all Churches were received into the Communion of the Church on Condition of believing the Creed or Faith into which they were Baptized The Priest at Baptism asked Dost thou believe in God the Father Almighty c. The party Baptized answered by himself if he were of age by his Sureties if not All this I stedfastly believe Then the Priest demands further Wilt thou be Baptized into this Faith He answers That is my desire c. Upon these Conditions he was received into the Church and admitted into the Christian Communion Now if after Baptism and this promise he deny any of those Fundamental Articles into the belief of which he was Baptized though otherwise he lived never so peaceably he might justly be Excommunicated by the Church 'T is a good and true Rule in Morality and Divinity too Volenti non fit injuria he desired and had the
Christianae militi ae Sacramento liberè obligati as a good Author tells me to be Christians is to be in Covenant with Christ which cannot be compell'd 't is essentially consensus mutuus and where such free consent is wanting there is no Covenant or real and true Christianity It is Tertullian who tells us Hoc ad Irreligiositatis elogium concurrit ut non liceat mihi colere quem velim sed cogar credere quem Nolim It seems to him irreligious to compell Religion Piae religionis est non cogere sed suadere saith Athanasius And again Dominus non cogens sed libertatem suam voluntati permittens dicebat quidem vulgo omnibus Si quis vult venire post me Apostolis vero Numquid ae vos abire vultis And Chrysostome on the same place of John 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Interrogat an ipsi velint discedere quod omnem est amoventis vim ac necessitatem It is an excellent passage in Hilary to this purpose Intelligit singularis sapientia tua non decere non oportere cogi compelli in vitos ac repugnantes c. Idcirco laboratis ut omnes quibus imperatis dulcissimâ libertate potiantur Nec alia ratione quae turbata sunt componi quae divulsa sunt coerceri possunt nisi unus quisque nulla servitutis necessitate adstrictus integrum habeat vivendi arbitrium And again Permittat lenias tua populis ut quos Voluerint quos Elegerint audiant Docentes divina Mysteriorum solennia concelebrent c. And a little after Deus cognitionem sui Docuit potius quà m Exegit coactam confitendi se aspernatus est voluntatem Deus universitatis est obsequio non eget necessario non requirit coactam confessionem non fallendus est non promerendus nolit nisi Volentem recipere nisi orantem audire nisi profitentem signare Lactantius thus Defendenda Religio non occidendo sed moriendo non saevitiâ sed patientiâ illa enim Malorum sunt haec bonorum necesse est bonum in Religione versari non malum Nam si sanguine si tormentis si malo Religionem defendere velis jam non defendetur illa sed Polluetur violabitur Nihil enim est tam voluntarium quà m Religio And the same Lactantius elsewhere Non expetimus ut Deum nostrum velit nolit colat aliquis invitus nec si non coluerit irascimur Quis imponit mihi Necessitatem vel colendi quod Nolim vel quod Velim non colendi St. Augustine was at first against all Persecution for Religion and would not have the Emperor sollicited to punish the Donatists with Secular and Temporal punishments At last as he confesseth he was of another opinion yet even then he was against punishing any even the worst Hereticks with death Ita enim lex fuerat promulgata saith he ut tantae immanitatis Haeresis Donatistarum cui crudelius parci videbatur quà m ipsa saeviebat non tantum violenta esse sed omnino non fineretur esse impunè non tamen supplicio capitali propter servandam etiam circa indignos mansuetudinem Christianam sed pecuniariis damnis c. There is in Eusebius an Edict of Constantine and Licinius which gives a Toleration to all Religions 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Ut tum Christianis tum aliis omnibus liberam optionem omnino daremus eam Religionem sequendi quam ipsi in animos inducerent And again 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Consilio rectissimo decrevimus ut nemini prorsus libertas negetur Christianorum cultum imitandi Cuique detur copia suam mentem ei Religioni addicendi quam ipse sibi maximè convehire censuerit And he gives the reason of this Indulgence 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Quia nostrorum temporum tranquillitati quieti revera accommodatum est ut quisque facultatem habeat deligendi eam in Deo colendo rationem quae sibi maximè placuerit hocque à nobis factum ut nullius Religionis authoritas à nobis ulla ex parte imminui videatur Afterwards such Toleration was not granted but as we see in the Imperial Laws sometimes more or less according to the Constitution of the Emperors and the fierceness and importunity of the Bishops But enough if not too much of this and therefore manum de Tabula He that desires more either sayings of Fathers or Imperial Edicts or Constitutions of particular Churches and Nations concerning Persecution or Toleration of several Religions may have them Collected to his Hand by many Authors Qui plura vellet illos videat Quer. 1. Whether he that would give a Toleration to several Religions should not in prudence and conscience first know what these Religions are what Points they hold different from that Established that so he may knowingly judg how far he may or may not grant Impunity For if he Tolerate a Religion before he know it he Tolerates he knows not what Which cannot be an act of prudence in any Magistrate Seeing in this case he grants a Toleration to that Religion which for ought he knows he ought not to Tolerate Quer. 2. Whether he that does and justly may Tolerate a Religion different from that Legally established and so compells none to be of his Religion may not yet compell his Subjects to those Media and the use of them by which may be informed of the reasons and truth of his Religion As for instance whether our King though he should grant a Toleration to Papists and so no way compell them to be Protestants may not compel them to come to Sermons and hear Disputations by which they may be informed of those Truths we hold and the Grounds and Reasons of them As Parents compell their Children to go to School for Information though they should not cannot compell them to an assent and belief of what they are taught Seeing by the Law of Nature and Scripture we and all men are bound to Try all things and hold fast that which is good and so may by our Lawful Governours be compell'd to an examination and rational trial of several Religions though not to the belief of any Now the reason of this difference in this 1. It is evident and confessed that 't is every man's duty to make such trial of the truth of several Religions that so he may be of the best Religion by choice and not only by chance 2. It is as evident that the end of Magistracy is to bring all men under their Jurisdiction to do their duty either by suasory allurements or if that will not do by compulsory punishments and so by consequence he may compell them to such trial of the truth 2. But after such trial made by hearing Sermons and Disputations the Magistrate cannot tell certainly when it is their duty of several Religions to believe this or that in particular
Maintenance 2. Or only to declare a Nullity of the Matrimonial Contract between Patrimoniale and Gallina For the first If the Archbishop's Sentence was such as required Co-habitation that Mr. Cottington should give due Benevolence and Maintenance to Gallina Then his Sentence was absolutely Null Quia à non judice lata that Archbishop having no Jurisdiction over Mr. Cottington and an usurpation of the just Rights of our King the Supreme and of our Bishops who from and under him have a sub-ordinate Jurisdiction over the Subjects of England and so over Mr. Cottington Sure I am the Archbishop of Turin had no Jurisdiction over Mr. Cottington a subject of the King of England First Not Supreme that 's only in our King as our Laws and Oaths testifie Secondly Not Subordinate for that must be derived from the King who surely never gave the Archbishop of Turin any Jurisdiction over Mr. Cottington or any of his Subjects And therefore if the Archbishop of Turin's Sentence was such our King and Bishops might justly question and censure it for what it was a Nullity and an illegal usurpation of the Rights of the Church of England For the second If the Archbishop of Turin's Sentence was only that the Matrimonial Contract between Patrimoniale and Gallina was a Nullity then I consider First That it is confess'd that Res judicata pro veritate accipitur and the Sentence may be put in Execution Si sententia judicis appellatione nullâ suspensa sit nec ex alia causa potest restaurari But this must be understood in respect of the Parties litigant Facit jus irretractabile inter partes saies the Law and Lawyers And they add Sententia à qua non est appellatum facit jus inter partes etiamsi ab initio fuit injusta Secondly But yet this Rule has several limitations and fallentiae as they call them for Si sententia judicis sit ipso jure nulla contra jus lata tum sine appellatione infringitur non transit in rem judicatam And a good Lawyer with relation to the Laws cited in the Margint tells me His legibus dicitur quod sententia lata contra leges statuta vel constitutiones principum est ipso jure nulla ideo citra appellationem causa de novo in judicium deduci potest And Panormitan sententia pro Matrimonio non transit in rem judicatam cum extat impedimentum lege divinâ vel humanâ super eo non est dispensatum So that it is not every Sentence of a Judge though not suspended by an appeal which passes in rem judicatam no not in the same State or Kingdom and therefore the Archbishop of Turin's Sentence declaring the Matrimonial Contract between Patrimoniale and Gallina to be a Nullity if it be against any Law of God or Man as undeniably it is against both if the grounds on which it was given be such as they have been represented to me is it self Null and to all intents and purposes invalid Thirdly But let the Archbishop's Sentence as to the Nullity be what it will true or false just or unjust yet if it concerns a Subject of England our King and Bishops have good reason and a just power to question and examine it and according to its Validity or Nullity admit or reject it Fourthly And that it does highly concern a Subject of England is evident For although ab Origine it concern'd only Patrimoniale and Gallina two of his own Subjects yet Mr. Cottington having before or since the Sentence I know not married Gallina He is highly concerned to be sure that the Archbishop's Sentence is just and true For if it be not if indeed there be no Nullity in that Contract then what Casuist or Court soever determines and decrees that he shall Co-habit with Gallina as his Wife does ipso facto decree 1. That he shall Co-habit with another Man's Wife 2. That he shall live in continual Adultery 3. That if he have any Children by her they are none of his for is pater est quem nuptioe demonstrant 4. And so in case she out live him he shall not be in a possibility to leave any lawfull Issue to continue his Name and Family to Posterity Fifthly If then the Archbishop's Sentence be untrue if the contract between Patrimoniale and Gallina was Matrimonium ratum and no Nullity then all those sad or sinful consequences will necessarily follow and so not only Mr. Cottington by Co-habiting with another Man's Wife but his Judges too who command such Co-habitation will be guilty of those horrid Impieties For if it be true as undoubtedly it is that the Magistrate who prohibits not Impieties when 't is in his power is himself guilty of them Then much more will he be guilty who expresly commands them And that Magistrate whoever he be who by a judicial Sentence commands Mr. Cottington to Co-habit with another Man's Wife for so she is in case there be no Nullity commands him to commit and continue in Adultery Sixthly It will therefore both in Prudence and Conscience highly concern our Bishops and Ecclesiastical Judges to whom the cognizance of this cause belongs that they be morally sure that the Contract between Patrimoniale and Gallina was indeed a Nullity before they decree and require Mr. Cottington to Co-habit with her It is evidently repugnant to the nature of Justice and the integrity of a just Judge to give a certain damnatory Sentence upon an uncertain and dubious Ground Now 't is absolutely impossible that any Man should be sure of such a Nullity as is declared in the Archbishop's Sentence unless he know the reasons on which that Sentence is grounded and that they are such as efficaciously prove the Nullity And if Mr. Cottington doubt of the Nullity as of necessity he must till by some rational medium it appear and be not sure Gallina is indeed his Wife I am sure he sins if he Co-habit with her seeing he Co-habits with one who for ought he knows is another Man's Wife And then the Rule is certain Quicquid fit reluctante vel dubitante conscientiâ est peccatum Seventhly If it be said That the Archbishop of Turin has by a judicial Sentence declared that Contract to be a Nullity It is confessed but that is no just ground for Mr. Cottington nor any body else to be assured it is so unless the Reasons on which his Sentence is grounded appear to be cogent and sufficient to prove such Nullity That Archbishop and his Assessors neither are nor pretend to be Infallible and the Sentence of a fallible Authority so long as the Reasons of it are unknown is not sufficient to satisfie and quiet a doubting Conscience Our Holy Mother the Church of England has truly told us and all her Sons subscribe it that General Councils may and have actually erred much more may a particular Popish
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
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
facto confirm what they had illegally done For it is both Reason and Law that a Nullity is not capable of Confirmation because Confirmation always presupposeth some antecedent Right in the thing to be confirmed It does not give a Right but does only strengthen an antecedent infirm Right Now it is certain that the Parishioners had no Right to raze out those Texts of Scripture which the Supreme Authority had placed there and therefore no Order got ex post facto could confirm what they had Illegally done 3. Nor could the Deputy-Chancellor's Order if they had procured it before they went to raze out those Texts of Scripture formerly writ upon the Walls have given them any just Power to raze out those Texts it being impossible that any inferiour Judg or Court should null the Sentence of the Supreme I know that Pope Gregory the First one of the first Introducers of Popish Superstition about Images tells us that Images are Lay-mens Books and that Pictures are as profitable to Idiots who cannot as the Scriptures are to those who can read them An Assertion evidently erronoous and impious And yet the Trent-Conventicle to the same purpose faith That Images instruct and confirm the People in the Articles of Faith to their great Benefit But God Almighty by his Prophet tells us That Images are Teachers of Lies This King James of happy Memory and his pious and learned Convocation well knowing and that the Church of England had condemned the setting up of Images in our Churches as shall anon appear they Decree and Command That instead of Popish Images which were Teachers of Lies the Ten Commandments and choice Sentences of Scripture should be writ upon the Walls of our Churches whence without fear of Error the People might learn Divine and Infallible Truths And here the Saying of an antient and excellent Person is worthy of our Memory and Consideration 't is this They deserve to err who as the Papists do seek Christ and his Apostles not in the Sacred Scriptures but in Images and Pictures I know that the Painter and those few Parishioners who were for taking away those Sentences of Scripture antiently writ upon the Walls have instead of them writ some other Sentences of Scripture in several Places where none were before But this does not excuse but rather aggravate their Crime For 1. This was not done till some time after they had finished their Work wash'd out the Texts of Scripture antiently writ upon the Walls and set up all their Images When finding what they had done displeased many particularly their Bishop and that their Proceedings were censured as Illegal and by no Law Warrantable then and not till then they caused some other Texts of Scripture to be writ upon the Walls 2. And this they did without any Advice or Direction of their Minister or any who had the Cure of their Souls Whereas the Canon required that chosen Sentences of Scripture should be writ upon the Walls And we may be sure that the pious and learned King and Convocation who made that Canon did not intend that the ignorant Painter and poor Parishioners but some who had more Understanding and Cure of their Souls should choose such Sentences as should be for the Peoples Edification most plain and pertinent But no more of this For although what the Painter and a few private Persons did against the Canon and Constitution of the Supreme Power was Illegal and by no Law Warrantable yet the setting up Images in the place of those Sentences of Scripture which they have erazed was much worse as being repugnant and directly contrary to the Doctrine of the Church of England which has been and is approved and by our Supreme Power at present stands established by our good Laws Ecclesiastical and Civil That this may evidently appear it is to be considered 1. That the Popish Church in their Trent-Council which to them is an Oecumenical and General Council does define and command in order to their superstitious and Idolatrous Worship of them That the Images of their Saints be had and retained more especially in Churches where the poor People may see and have opportunity to worship them 2. That in the Reformation of our Church our Supreme Powers who regularly begun and piously and happily finish'd it expresly condemn'd not only the worshipping of Images but the having them in our Churches This does evidently appear in our Authentick Records to say nothing of our Learned particular Writers published by Supreme Authority to that purpose For 1. By the Injunctions of Edw. 6. it is commanded thus They shall take away and utterly destroy all Shrines c. and all Pictures Paintings and all Monuments of Idolatry and Superstition that there remain no memory of them in Walls Windows or elsewhere c. 2. And about three or four Years after in the same King's time it is by Act of Parliament expresly required That all Images graven carved or painted which yet stand in any Church should be defaced and destroyed And though this Statute in favour of Popish Superstition and Idolatry was repealed by Q. Mary yet that Queen's Statute was by good K. James repealed and to prevent and discourage Popery that Statutre of Edw. 6. was expresly revived and so remains still obligatory 3. Queen Elizabeth in her Injunctions Injunct 23. renews the Injunction of Edw. 6. in the same Words That all Images Paintings and Pictures should be taken out of all Churches c. 4. And the Homilies published by Q. Elizabeth tell us that Images de facto were taken out of Churches For the Homily says That the Churches were scowred and swept from the sinful and superstitious Filthiness which defiled them By which as appears by the said Homilies Images are principally meant 5. To the same purpose Cambden in his Life of Q. Elizabeth tells us That Images were actually removed out of our Churches by the Authority of Parliament 6. Once more the learned and incomparable Bishop Jewel in his Defence of his Apology of the Church of England doth both say and prove that Images ought not to be in any Churches or Places of God's Publick Worship By the Premisses it may and I believe does appear that in the Judgment of the Church of England Images are not to be tolerated in our Churches and Places of God's Publick Worship and therefore they were removed and defaced by the Supreme Powers Ecclesiastical and Civil declared and published in Canons of Convocation and Acts of Parliament But here it is objected by the Enemies of our Church and Reformation That our Reformers have been so zealous and indiscreetly fierce against Images that they have condemn'd the ingenious Art of Painting and even the civil Use of Images But this is a malicious Calumny and no real Consequence of our Churches Doctrine about Images as has been expresly and publickly
declared both by our Church and State For 1. Our Church has declared her Judgment that all Images are not absolutely unlawful or simply forbidden in the New Testament but only some in some Places and Circumstances when they may especially to poor ignorant People be dangerous Occasions of Superstition and Idolatry and more expresly a little after the Words are these We are not so scrupulous as to abhor Flowers wrought in Carpets Hangings Arras c. or Images of Princes on their Coin nor do we condemn the Art of Painting or Image-making c. Whence it is evident that our Church is neither against the Art of Painting nor any Civil Use of Images 2. Our State has by express Act of Parliament declared even in the time of our Reformation That they did not condemn any Civil Use of Images For even in that Statute in which they severely condemn and command the defacing Images in Churches they have this Proviso Provided always That this Act shall not extend to any Images or Pictures set or engraven on any Tomb in any Church Chappel or Church-Yard only for a Monument of any King Prince Noble Man or any other dead Person which hath not commonly been reputed for a Saint but that all such Images may continue Whence it is evident that our Church at the Reformation did not condemn any Civil Use of Images no not in sacred Places as Church-Yards Chappels or Churches much less in other Places And that we may more distinctly know what Images they condemn'd and why they would not tolerate them in Churches It is further to be considered 1. That the Church of England absolutely condemns all Images of the Trinity or any Person in it Father Son or Holy Ghost as absolutely unlawful and expresly condemned in Scripture Such Images are not to be tolerated neither in nor out of Churches 2. No Images of our Blessed Saviour of any Saints and Martyrs which with stupid Superstition and Idolatry have been and still are worshipped in the Popish Church are in the Judgment of our Church to be tolerated in our Temples or any Place of God's publick Worship For if they be it will be to the great and unavoidable danger of Idolatry This I conceive is the approved and received Doctrine of the Church of England and that it may more plainly and distinctly appear to be so I shall cite the Judgment of our Church and her Reasons for it in her own express Words and amongst other things too many to be transcrib'd she plainly tells us 1. That it is an ungodly thing to set up Images or Idols which in her Judgment signify the same thing in our Churches because it may give a great occasion of worshipping them 2. That Images in Churches painted on Clothes or Walls are unlawful and contrary to Christian Religion 3. That setting up Images in Churches is to the great and unavoidable danger of Idolatry and that the Law of God is against it 4. That the setting up the Image of God of our Blessed Saviour or any Saints is not tolerable in Churches but against God's Law 5. Wo be to the setters up and maintainers of Images in Churches 6. It is not possible if Images be in Churches to avoid Idolatry 7. Images of God our Blessed Saviour and the holiest Saints are of all others the most dangerous to be in Churches 8. Images in Churches are a Snare and tempting of God to the great danger and destruction of many 9. That Images in Churches in the Judgment of the Prophet and Apostle are only Teachers of Lies 10. God's horrible Wrath cannot be avoided without utter abolishing Images in Churches This is evidently the express Doctrine of our Homilies which absolutely condemns not only the worshipping but having Images in our Churches And it is no less evident that the Homilies and the Doctrine contained in them are both approved received and established by the Supreme Authority of our Church and State Canons of Convocation and Acts of Parliament This will appear 1. By the Testimony of King James who commends the diligent reading of our Articles and Homilies set forth by the Authority of the Church of England 2. By the Convocation of Q. Elizabeth the Supreme Ecclesiastical Power which expresly and particularly names and approves all our Homilies and declares the Doctrine contained in them to be a godly Doctrine as appears by the Articles of our Church composed and published in that Convocation 3. By the Convocation I Jacobi For as the Article last named declares our Homilies to contain a godly Doctrine so the Convocation of King James declares all things contained in that Article to be agreeable to the Word of God 4. All the Clergy of England all Graduates in the Universities all Chancellors Commissaries and Officials before they exercise any Ecclesiastical Jurisdiction are willingly and ex animo to assent consent approve and subscribe these Articles and this Doctrine and that absolutely without any Glosses or Senses of their own 5. And these Subscriptions are required and so the Doctrine subscribed to confirm'd by several Acts of Parliament 6. And if any impugn this Doctrine so declar'd and establish'd by the Supreme Power or maintain any Doctrine contrary or repugnant to it he is by our Canons to be excommunicated ipso facto and by the Statute if he be a beneficed Clergyman deprived The Premisses being certain and evident Truths the natural and necessary Consequences which follow from them to omit others will be these 1. That neither the Deputy-Chancellor of Lincoln nor any inferiour Court has or can have any just Authority or Power to approve and authorize the setting up of such Images in the Church which by the Supreme Power Ecclesiastical and Civil in Convocation and Parliament is expresly condemn'd as altogether unlawful and to the poor ignorant People pernicious 2. That they who maintain and encourage this Doctrine of setting up Images in our Churches if they persist in it are by our known Laws now in Force to be excommunicated ipso facto and if they be beneficed Clergy-men to be deprived Viderint quorum interest 3. And if any Ecclesiastical Judg or Court quod absit should approve authorize or encourage the setting up of such Images in our Churches it evidently follows from the Premisses that in so doing they approve and authorize that which the Church of England has publickly declared to be dangerous against the Law of God against Christian Religion and to many pernicious And therefore we have reason to believe that no good Son of the Church of England will approve authorize or encourage that which his Holy Mother has so absolutely and publickly condemned A Friend of the late Bishop of Lincoln's observing how customary it is to Protestant Writers to charge on the Papists the Tenet of Dominium fundatur in
Gratiâ requested his Lordship to resolve him how far the said Tenet is chargeable on the Church of Rome And thereupon his Lordship was pleased to send him under his own Hand a Paper writ as followeth Quaeritur An Dominium fundetur in Gratia IN Answer to this I shall say only a few things which to me seem certain and evident Truths 1. The Question must be held Negatively Dominium non fundatur in Gratia Neither Dominium Temporale of Kings or Lay-Magistrates nor Dominium Spirituale of the Bishops and Clergy This has been evidently proved by many of our Divines especially and clearly by Dr. Davenant Bishop of Salisbury 2. The Papists who are both the Accusers and Judges do impute this Opinion to Wickliff and Hus and their Followers and condemn the Opinion and them for it as Hereticks for saying that Dominium fundatur in Gratia which is a manifest Calumny and no just or proved Accusation as might be proved out of Hus his printed Works and several Manuscript Works of Wickliff in Bodley's Library But they bring these lying Accusations against them that they may have some pretence to destroy and murder them 3. That erroneous and impious Council of Constance Anno 1413 which is an Oecumenical and General Council at Rome having confess'd that our Blessed Saviour did institute the Eucharist in both kinds they blasphemously add Quod non obstante Institutione Christi they decree That the Sacrament should be taken only in one kind Whence Luther would not call it Concilium Constantiense but Concilium NON-OBSTANTIENSE Now this Council condemns this Proposition Dominium fundatur in Gratia 1 st In John Hus and his Followers 2 dly In Wickliff and his Followers 4. I do not find any Popish Author who affirms and approves this Proposition Dominium fundatur in Gratia in those very Terms in which the Council of Constance had condemned it as Heretical For this were to contradict their own Principles and approve that for Truth which their Supreme Infallible Guide a General Council had Synodically declared Heresy 5. But the Church of Rome though in other Terms doth both profess and practise this Doctrine that Dominium fundatur in Gratia For they say that Dominium fundatur in Fide Religione Catholica so they miscal Popery or the Roman Religion so that if any Man by Apostacy desert their Religion or by Heresy deny any Article of their Faith he does not only forfeit his Dominion over his Inferiors but all his Goods and Livelihood and his Life here and eternal Life hereafter This is the erroneous and impious Doctrine of the Church of Rome approved and vindicated not only by their Schoolmen Casuists Canonists Summists c. but received into the Body of their Canon-Law in their last and as they say the most correct Editions of it and declared and confirmed in their General Councils That this may appear I shall of many hundreds give you some few but pertinent and great Instances 1. Aquinas says PRINCIPIBUS apostatantibus a Fide non est obediendum And again when such an Apostate Prince is excommunicared Ipso facto ejus Subditi à dominio juramento fidelitatis ejus liberati sunt And a little before Haereticus non solum excommunicari sed juste occidi potest excommunicatus ulterius relinquitur judicio saeculdri à mundo exterminandus per mortem His Commentators do believe and as far as they are able justify this Doctrine 2. Alphonsus à Castro is very large and learned on this Subject and proves first That for Heresy a Father does lose the Dominion and yet that Dominium is jure Naturae Patri debitum which he had over his Children Propter Haeresin says he Pater amititt Jus quod habuit super filios c. And again Dominium Politicum amittitur per Haeresin it a quod Rex factus Haereticus ipso jure est Regno suo privatus Dux suo Ducatu c. 3. Nicolaus Eymericus in his Directorium Inquisitorion Parte 2 3. and Francis Pegna his Commentator do assert all and more than I have said and out of many Popish Canons and Councils and Papal Constitutions fully prove it 4. The Canon Law tells us That Bona Haereticorum sunt ipso jure confiscata and not only so but their Children are made incapable of any Benefice or Office Ecclesiastical or Civil Haereticorum filii usque ad secundam generationem ad aliquod beneficium ecclesiasticum seu publicum officium ne admittantur quod st secus actum fuerit sit irritum There are many other Constitutions in their Canon Law which expresly declare that Hereticks that is such as deny any Article of their Popish Creed lose all Dominion Ecclesiastical and Civil of which they were justly possessed before they fell from the Popish Faith into Heresy as they call it 5. Lastly Their Concilium Lateranum Magnum sub Innocentio III. in which there were for so they tell us about 1200 Fathers I say this great Council which they acknowledg to be General or Oecumenical expresly declares That an Heretick tho a King or Emperour does by his Heresy forfeìt all his Dominion and therefore with them Dominion must be in Fide fundatum that is in their Apocryphal Popish Faith For if believing and continuing in that Faith do preserve their Dominion and the rejecting it by Heresy forfelt it then it necessarily and evidently follows that their Roman Catholick Faith is the Foundation of their Dominion and the Cause which preserves it as Here 's is the Cause why they lose it And as this is their Popish impious Doctrine that not only Subjects but Supreme Governors Kings and Emperors forfeit their Dominions by Heresy so the Practice of their Popes has in this case been suitably impious and sinful I need not go far for evident Instances in particular Paul III. excommunicates our Henry 8 for Heresy absolves his Subjects from all Oaths of Allegiance and declares him to have lost all Right to his Dominions So Pius V. for the same reason because Q. Elizabeth was an Heretick excommunicates and deposes her and gives her Kingdoms to Philip the 2 d of Spain who came with his great Armada and the Pope's Benediction which brought the Curse of God upon him and his Fleet for there is no Power or Policy against Providence to take possession of it in 1588. In prosecution of these Principles many hundred thousands have been actually murdered in the Papacy either 1. By open War as in France and the Countries adjoining in Ireland in our late Rebellion c. 2. By their bloody Inquisition 3. Or endeavour'd to be murdered by secret Conspiracies as in our Gun-Powder Treason and many Conspiracies against Q. Elizabeth and our late gracious Soveraign But his Sacred Majesty having graciously promised to maintain the Church of England as it is by Law establish'd who has ever been and I