of spirits who onely sees and searches the secrets of it and can both convince and punish it Besides well did penitent David know what he said when he cryed out Against thee onely have I sinned Psal. 51. he knew that sinne is a transgression of the law and that none but Gods law can make a sin men may be concerned and injured in our actions but it is God who hath forbidden these wrongs to men that is sinned against in our acts of injustice and uncharitablenesse and who only can inflict the spirituall which is the highest revenge upon offenders The charge of the great Doctor of the Gentiles to his Galatians was Galat. 5. 1. Stand fast in the liberty wherewith Christ hath made us free and be not intangled againe in the yoak of bondage What yoak of bondage was this but the law of Ceremonies What liberty was this but a freedome from the bondage of that law And certainly if those ordinances which had God for their author have so little power to bind the conscience as that the yoake of their bondage must be shaken off as inconsistent with Christian liberty how much less is it to be indured that we should be the servants of men in being tyed up to sin by their presumptuous impositions The lawes of men therefore doe not ought not cannot bind your conscience as of themselves but if they be just they binde you in conscience to obedience They are the words of the Apostle to his Romans Rom. 13. 5. Wherefore ye must needes be subject not onely for wrath but also for conscience sake However then their particular constitution in themselves put no speciall obligation upon us under paine of sinne and damnation yet in a generall relation to that God who hath commanded us to obey authority their neglect or contempt involves us in a guilt of sin All power is of God that which the supreme authority therefore enjoyns you God enjoyns you by it the charge is mediately his though passing through the hands of men How little is this regarded in these loose times by those lawlesse persons whose practises acknowledge no soveraignty but titular no obedience but arbitrary to whom the strongest laws are as weapons to the Leviathan who esteemes Iron as straw and Brass as rotten wood Job 41. 27. Surely had they not first cast off their obedience to him that is higher than the highest they could not without trembling heare that weighty charge of the great God of Heaven Rom. 13. 1. Let every soule be subject to the higher powers For there is no power but of God and the powers that be are ordained of God 1 Pet. 2. 13. Submit your selves to every Ordinance of man for the Lords sake and therefore should be convinced in themselves of that awe and duty which they ow to Soveraignty and know and resolve to obey God in men and men for God You see then how requisite it is that you walk in a middle way betwixt that excessive power which flattering Casuists have beene wont to give to Popes Emperours Kings and Princes in their severall jurisdictions and a lawlesse neglect of lawfull authority For the orthodox wise and just moderation whereof these last ages are much indebted to the learned and judicious Chancellour of Paris John Gerson who first so checked that over-flowing errour of the power of humane usurpation which carried the world before it as gave a just hint to succeding times to draw that streame into the right channell in so much as Dominicus à Soto complaines greatly of him as in this little differing from the Lutheran heresie But in the way which they call heresie we worship the God of our Fathers rendring unto Cesar the things that are Cesars and unto God those things that are Gods yeilding our bodyes to Cesar Act. 24. 14. reserving our souls for God tendring to just Lawes our active obedience to unjust passive But in the meane time farre be it from us to draw this knot of our obligation harder closer then authority it self intends it What ever Popes may doe for their Decrees certainly good Princes never meant to lay such weight upon all their lawes as to make every breach of them even in relation to the authority given them by God to be sinfull Their lawes are commonly shut up with a sanction of the penalty imposed upon the violation There is an obedientia bursalis as I remember Gerson calls it an obedience if not of the person yet of the purse which Princes are content to take up withall we have a world of sinnes God knowes upon us in our hourly transgressions of the royall lawes of our maker but woe were us if wee should have so many sins more as we break statutes In penall lawes where scandall or contempt finde no place humane authority is wont to rest satisfied with the mulct paid when the duty is not performed Not that we may wilfully incur the breach of a good law because our hands are upon our purse-strings ready to stake the forfeiture This were utterly to frustrate the end of good lawes which doe therfore impose a mulct that they may not bee broken and were highly injurious to soveraign authority as if it sought for our money not our obedience and cared more for gain then good order then which there cannot be a more base imputation cast upon government As then we are wont to say in relation of our actions to the lawes of God that som things are forbidden because they are sinfull and some things are sinfull because they are forbidden so it holds also in the lawes of men som things are forbidden because they are justly offensive and som other things are only therfore offensive because they are forbidden in the former of these we must yield our careful obedience out of respect even to the duty it self in the latter out of respect to the will of the law-giver yet so as that if our own important occasions shall enforce us to transgress a penall law without any affront of authority or scandall to others our submission to the penalty frees us from a sinfull disodedience CASE VII Whether Tithes bee a lawfull maintenance for Ministers under the Gospel and whether men bee bound to pay them accordingly AS the question of Mine and Thine hath ever embroyled the world so this particular concerning tithes hath raised no little dust in the Church of God whiles some plead them in the precise quota parta due necessarie to be paid both by the law of God and nature it self others decry them as a judaicall law partly ceremoniall partly judiciall and therfore either now unlawfull or at least neither obligatory nor convenient What is fit to be determined in a businesse so over agitated I shall shut up in these ten propositions 1. The maintenance of the legall ministery allowed and appointed by God was exceeding large and liberall Besides all the tithes of corn wine oyle herbs herds
VERA EFFIGIES REVERENDI DOâ—â— IOSEPHI HALL NORWICIEPIS COPI This Picture represents the Forme where dwells A Mind which nothing but that Mind excells There 's Wisdome Learning Witt there Grace Lovâ— Rule over all the rest enough to prove Against the froward Conscience of this Time The Reverend Name of BISHOP is no Crime CASES OF CONSCIENCE Practically Resolved CONTAINING A Decision of the principall Cases of CONSCIENCE of daily Concernment and continual Use amongst Men. Very necessary for their Information and Direction in these evil Times The third Edition much inlarged By JOS HALL B. Norwich LONDON Printed by R. H. and J. G. and are to be sold by Fr Eglesfield at the Marigold in S. Paul's Church-yard 1654. To the READER OF all Divinity that part is most usefull which determines cases of Conscience and of all cases of Conscience the Practicall are most necessary as action is of more concernment than speculation and of all Practicall Cases those which are of most coÌ„mon use are of so much greater necessity benefit to be resolved as the errors thereof are more universall and therefore more prejudiciall to the society of mankind These I have selected out of many and having turned over divers Casuists have pitch't upon these Decisions which I hold most conformable to enlightened reason and religion sometimes I follow them sometimes I leave them for a better Guide In the handling of all which would I have affected that course which Seneca blames in his Albutius to say all that might be spoken I could easily have been more Voluminous though perhaps not more satisfactory If these lines meet with different judgments I cannot blame either my selfe or them It is the opinion of some Schoolmen which seems to be made good by that instance in the Prophet Daniel that even the good Angels themselves may holily vary in the way though they perfectly meet in the end It is farre from my thoughts to obtrude these my Resolutions as peremptory and magisteriall upon my Readers I onely tender them submissely as probable advises to the simpler sort of Christians and as matter of grave censure to the learned May that infinite Goodnesse to whose only glory I humbly desire to devote my selfe and all my poore indeavours make them as beneficial as they are wel-meant to the good of his Church by the unworthiest of his Servants Higham near Norwich March 29. 1650. J. H. B. N. The CONTENTS of the first Decade Cases of Profit and Traffique I. WHether it be lawfull for me to raise any profit by the loane of Mony p. 1 II. Whether may I not sell my wares as deare as I can and get what I may of every Buyer 13 III. Whether is the Seller bound to make known to the Buyer the faults of that which he is about to sell 19 IV. Whether may I sell my commodities the dearer for giving dayes of payment 24 V. Whether and how farre Monopolies are or may be lawfull 30 VI. Whether and how far doth a fraudulent bargaine binde me to performance 38 VII How farre and when am I bound to make restitution of another mans goods remaining in my hands 47 VIII Whether and how farre doth a promise extorted by feare though seconded by an oath binde my Conscience to performance 54 IX Whether those moneyes or goods which I have found may be safely taken and kept by me to my owne use 61 X. Whether I may lawfully buy those goods which I shall strongly suspect or know to be stollen or plundred or if I have ignorantly bought such goods whether I may lawfully after knowledge of their owner keep them as mine 66 The CONTENTS of the second Decade Cases of Life and Liberty I. WHether and in what cases it may be lawfull for a man to take away the life of another p. 71 II. Whether may I lawfully make use of a Duel for the deciding of my right or the vindication of my honour 81 III. Whether may it be lawfull in case of extremity to procure the abortion of the Child for the preservation of the Mother 89 IV. Whether a man adjudged to perpetuall imprisonment or death may in conscience indeavour and practice an escape 101 V. Whether and how farre a man may be urged to an Oath 108 VI. Whether a Judge may upon allegations proofes and evidences of others condemn a man to death whom he himselfe certainly knowes to be innocent 117 VII Whether and in what cases am I bound to be an accuser of another 129 VIII Whether a Prisoner indicted of a felonious act which he hath committed and interrogated by the Judge concerning the same may stand upon the denial and plead not guilty 136 IX Whether and how farre a man may take up armes in the publique quarrell of a warre 143 X. Whether and how far a man may act towards his owne death 150 The CONTENTS of the third Decade Cases of Piety and Religion I. WHether upon the appearance of evill Spirits we may hold discourse with them and how we may demean our selves concerning them 161 II. How farre a secret pact with evill Spirits doth extend and what actions and events must be referred thereunto 174 III. Whether reserving my Conscience to my selfe I may be present at an Idolatrous devotion or whether in the lawfull service of God I may communicate with wicked persons 183 IV. Whether vowes be not out of fashion now under the Gospell of what things they may be made how farre they oblige us and whether and how farre they may be capable of a release 192 V. Whom may we justly hold an Heretique and what is to be done in case of Heresie VI. Whether the lawes of men doe bind the conscience and how farre we are tyed to their obedience 210 VII Whether Tithes be lawfull maintenance for Ministers under the Gospel and whether men be bound to pay them accordingly 219 VIII Whether it be lawfull for Christians where they finde a Countrey possessed by Savage Pagans and Infidels to drive out the native Inhabitants and to seize upon and enjoy their lands upon any pretence whatsoever and upon what grounds it may be lawfull so to doe 233 IX Whether I need in case of some foule sinne committed by me to have recourse to Gods Minister for absolution and what effect I may expect there-from 249 X. Whether it be lawfull for a man that is not a professed Divine that is as we for distinction are wont to call him for a meer Laick person to take upon him to interpret Scripture 262 The CONTENTS of the fourth Decade Cases Matrimoniall I. WHether the Marriage of a Son or Daughter without or against the Consent of Parents may be accounted lawfull 285 II. Whether marriage lawfully made may admit of any cause of Divorce save onely for the violation of the Marriage-bed by fornication or adultery 296 III. Whether after a lawfull Divorce for adultery the innocent party may marry againe 311 IV. Whether the
a sinne is no better then heresie and in succeeding times how liable the usurer hath ever been to the highest censures of the Church and how excluded from the favour of Christian buriall is more manifest then to need any proofe Secondly however it is unlawfull to covenant for a certaine profit for the mere loane of money yet there may be and are circumstances appending to the loane which may admit of some benefit to be lawfully made by the lender for the use of his money and especially these two the losse that he sustaines and the gaine that he misses by the want of the summe lent For what reason can there be that to pleasure another man I should hurt my selfe that I should enrich another by my owne losse If then I shall incur a reall losse or forfeiture by the delayed payment of the summe lent I may justly look fot a satisfaction from the borrower yea if there be a true danger of losse to me imminent when the transaction is made nothing hinders but that I may by compact make sure such a summe as may be sufficient for my indemnity And if I see an opportunity of an apparent profit that I could make fairely by disbursing of such a summe bona fide and another that hath a more gainefull bargaine in chace shall sue to me to borrow my money out of my hand for his owne greater advantage there can be no reason why in such a case I should have more respect to his profit then my owne and why should I not even upon pact secure unto my selfe such a moderate summe as may be somewhat answerable to the gaine which I doe willingly forgoe for his greater profit Since it is a true ground which Lessius with other Casuists maintains against Sotus and Durand that even our hopes of an evident commodity are valuable and that no lesse then the feares of our losse Shortly for the guidance of our either caution or liberty in matter of borrowing and lending the onely Cynosure is our Charity for in all humane and civill acts of Commerce it is a sure rule That whatsoever is not a violation of Charity cannot be unlawfull and whatsoever is not agreeable to Charity can be no other then sinfull And as Charity must be your rule so your selfe must be the rule of your Charity Looke what you could wish to be done to you by others doe but the same to others you cannot be guilty of the breach of Charity The maximes of Traffique are almost infinite onely Charity but ever inseparable from Justice must make the application of them That will teach you that every increase by loane of money is not usurary and that those which are absolutely such are damnable that will teach you to distinguish betwixt the one improvement of loane and the other and will tell you that if you can finde out a way whether by loane or sale to advance your stock that may be free from all oppression and extortion and beneficiall as well to others as to your selfe you need not feare to walke in it with all honest security but in the meane time take good heed that your heart beguile you not in mis-applications for we are naturally too apt out of our self-love to flatter our selves with faire glozes of bad intentions and rather to draw the rule to us then our selves to the rule But whiles I give you this short solution I must professe to lament the common ignorance or mistaking of too many Christians whose zeal justly cryes downe usury as a most hatefull and abominable practice but in the meane time makes no bones of actions no lesse biting and oppressive they care not how high they sell any of their commodities at how unreasonable rates they â—et their grounds how they circumvent the buyer in their bargaines and thinke any price just any gaine lawfull that they can make in their markets not considering that there is neither lesse nor lesse odious usury in selling and letting then there is in lending It is the extortion in both that makes the sinne without which the kind or termes of the transaction could not be guilty Surely it must needs be a great weaknesse to think that the same God who requires mercy and favour in lending will allow us to be cruell in selling Rigour and excesse in both equally violates the law of commutative Justice equally crosses the law of Charity Let those therefore that make scruple of an usurious lending learne to make no lesse conscience of a racking bargaine otherwise their partiall obedience will argue a grosse hypocrisie and they shall prove themselves the worst kinde of what they hate usurers For in the ordinary loanâ— usury the borrower hath yet time to boot for his money but here the buyer payes downe an excessive interest without any consideration at all but the sellers cruelty For the fuller clearing of which point whereas you aske CASE II. Whether may I not sell my wares as deare as I can and get what I may of every buyer I answer THere is a due price to be set upon every saleable commodity else there were no commerce to be used among men For if every man might set what rate he pleases upon his lands or goods where should he finde a buyer surely nothing could follow but confusion and want for mere extremity must both make the market and regulate it The due price is that which cuts equally and indifferently betwixt the buyer and seller so as the seller may receive a moderate gaine and the buyer a just penny-worth In those countries wherein there is a price set by publique authority upon all marketable commodities the way of commerce is well expedited and it is soone and easily determined that it is meete men should be held close to the rule But where all things are left to an arbitrary transaction there were no living if some limits were not set to the sellers demands These limits must be the ordinary received proportion of price current in the severall countries wherein they are sold and the judgement of discreet wise experienced and unconcerned persons and the well-stated conscience of the seller If men shall wilfully run beyond these bounds taking advantage of the rarenesse of the commodity the paucity or the necessity of the buyers to enhance the price to an unreasonable height they shall be guilty of the breach of charity and in making a sinfull bargaine purchase a curse Not that a man is so strictly tyed to any others valuation as that hee may not upon any occasion aske or receive more then the common price or that if the market rise he is bound to sit still There may be just reason upon a generall mortality of cattle to set those beasts that remaine at an higher rate or upon a dearth of graine or other commodities to heighten the price but in such cases wee must bee so affected as that wee grudge to our selves our owne gaine that wee bee not
the benefit of the present and following ages it is most just that he should from the hands of Princes or States receive a Priviledge for the sole impression that he may recover with advantage the deep expence he hath beene at Otherwise some Interloper may perhaps underhand fall upon the work at a lower rate and undoe the first editor whose industry care and cost shall thus be recompenced with the ruine of himselfe and his posterity as were too easie to instance If a man have by notable dexterity of wit and art and much labour and charge after many experiments attained to the skill of making some rare engine of excellent use for the service of his Prince and Countrey as some singular water worke or some beneficiall instrument for the freeing of navigable rivers from their sandy obstructions it is all the reason in the world that by the just bounty of Princes he should be so far remunerated as that he alone may receive a patent of enjoying a due profit of his owne invention But how farre it may be lawfull for a Prince not onely to gratifie a well deserving Subject with the fee of his owne devise but with a profit arising from the sole sale of marketable commodities through his Kingdome or whether and how farre in the want of monies for the necessary service of his State he may for the publique use raise set or sell monopolies of that kind is diversly agitated by Casuists and must receive answer according to the absolutenesse or limitation of those Governments under which they are practised But with this that where this is done there may be great care had of a just price to be set upon the commodities so restrained that they be not left to the lawlesse will of a priviledged ingrosser nor heightned to an undue rate by reason of a particular indulgence This may be enough for authoritative Monopolies The common sort of offensive practices this way are private and single or conventionall and plotted by combination The former as when some covetous extortioner out of the strength of his purse buyes up the whole lading of the ship that he may have the sole power of the wares to sell them at pleasure which there is no feare but he wâ—ll doe with rigour enough The true judgment of which action the degrees of the malignity of it must be fetcht as from the minde so from the management of the buyer as being so much more sinfull as it partakes more of oppression The latter when some brethren in evill conspire to prevent the harvest to buy up or hoord up the graine with a purpose to starve the market and to hatch up a dearth A damnable practice in both kindes and that which hath of old beene branded with a curse neither lesse full of justice than uncharitablenesse and that which cryes aloud for a just punishment and satisfactory restitution I cannot therefore but marvaile at the opinion of learned Lessius which he fathers also upon Molina that too favourably minces the hainousnesse of this sin bearing us in hand that it is indeed an offence against charity and common profit but not against particular Justice His reason To buy that corne saith he could not be against justice for he bought it at the current price Nor yet to sell it could be against justice because he was not tyed out of justice at that time to bring it forth to sale When he might easily have considered that it is not the mere act of buying or of not selling that in it selfe is accused for unjust but to buy or not to sell with an intention and issue of oppressing others and undue enriching themselves by a dearth For what can be more unjust then for a man to indevour to raise himself by the affamishing of others Neither can it serve his turne to say by way of excuse that the multitude of buyers may be the cause of a dearth and yet without sin since they doe rather occasion then cause a scarcity and are so farre from intending a dearth in making their market that they deprecate it as their great affliction And if by his owne confession those who either by force or fraud hinder the importation of corne that a dearth may continue are guilty of injustice and are bound to make restitution both to the Commonwealth in giving cause to raise the price as also to the Merchant whom they have hindered of his meet gaine how can those be liable to a lesse sin or punishment that either buy up or wilfully keep in their graine with a purpose to begin and hold on a dearth and what lesse can it be then force or fraud that by their crafty and cruell prevention the poor are necessitated to want that sustenance whereby their life should be maintained Wise Solomon shall shut up this Scene for me He that with holds corn the People shall curse him but blessings shall be upon the head of him that selleth it Prov. 11. 26. CASE VI. Whether and how farre doth the fraudulent bargaine binde me to performance HOw farre in matter of law you must advise with other Counsaile but for matter of conscience take this Is the fraud actively yours done by you to another or else passively put by another upon you If the former you are bound to repent and satisfie either by rescinding the match or by making amends for the injury If the latter wherein did the fraud lye If in the maine substance of the thing sold the bargaine is both by the very law of nature and in conscience void yea indeed not at all as if a man have sold you copper lace for gold or alchymie-plate for silver the reason is well given by Casuists There is no bargaine without a consent and here is no consent at all whiles both parties pitch not upon the same subject the buyer propounds to himselfe gold and silver the seller obtrudes copper and Alchymie the one therefore not buying what the other pretended to sell here is no bargaine made but a mere act of cozenage justly liable to punishment by all lawes of God and man But if the fraud were onely in some circumstances as in some faulty condition of the thing sold not before discerned or in the over-prizing of the commoditie bought the old rule is Caveat emptor You must for ought I know hold you to your bargain but if that faulty condition be of so high a nature that it marres the commoditie and makes it uselesse to the buyer the seller being conscious of the fault is injurious in the transaction and is bound in conscience to make satisfaction and if he have willingly over-reacht you in the price in a considerable proportion is guilty of oppression It is very memorable in this kinde that Cicero relates to us of a fraudulent bargaine betwixt Canius a Roman Knight and Orator and one Pythius a Banker of Syracuse Canius comming upon occasion of pleading to the city of
Syracuse tooke a great liking to the place and setling there gave out that he had a great desire to buy some one of those pleasant gardens wherewith it seemes that city abounded that he might there recreate himself when he pleased with his friends Pythius a crafty merchant hearing of it sends word to Canius that hee had a faire garden which he had no minde to sell but if he pleased to make use of it for his solace he might command it as his owne and withall courteously invites Canius to suppe with him there the day following In the meane time being a man by reason of his trade of exchange very gracious in the city he calls the fishermen together and desires them that the next evening they would fish in the streame before his garden and bring him what they shall have caught Canius in due time comes according to the invitation to supper where there was delicate provision made for him by Pythius and store of boates bringing in their plentifull draughts of fish and casting them downe at the feet of Pythius Canius askes the meaning of this concourse of Fishermen and store of profered provision Pythius tells him this is the commodity and priviledge of the place if Syracuse yeeld any fish here it is caught and here tendered Canius beleeving the report importunes his host to sell him the ground the owner after some seeming loathnesse and squeamish reluctation at last yeelds to gratifie him with the bargaine The deare price is payd downe with much eagernesse The new master of the place in much pride of his purchase the next day repaires early to his garden invites his friends to a friday feast and finding no boat there asks the neighbour whether it were holiday with the fishermen that he saw none of them there No said the good man none that I know but none of the trade use to fish here and I much marvailed at the strange confluence of their boats here yesterday The Roman Orator was downe in the mouth finding himselfe thus cheated by the money-changer but for ought I see had his amends in his hands He meant and desired to buy the place though without any such accommodation but over-bought it upon the false pretence of an appendent commodity the injury was the sellers the losse must be the buyers But if such be the case that you are meerely drawne in by the fraud and would not have bought the commodity at all if you had not beene induced by the deceit and false oathes and warrants of the seller you have just reason either if you may to fall off from the bargaine or if the matter be valuable to require a just satisfaction from the seller who is bound in conscience either by annulling the bargaine or abatement of price to make good your indemnity In these matters of contract there is great reason to distinguish betwixt a willing deceit and an involuntary wrong If a man shall fraudulently sell an horse which he knowes secretly and incurably diseased to another for sound and that other beleeving the sellers deep protestation shall upon the same price bonâ fide put him off to me I feel my selfe injured but whither shall I go for an amends I cannot challenge the immediate seller for he deceived me not I cannot challenge the deceiver for he dealt not with me In humane lawes I am left remedilesse but in the law of conscience the first seller who ought to have born his own burthen of an inevitable losse is bound to transferre by the hands that sold me that injurious bargaine a due satisfaction Neither is it other of fraudulent conveyances in the houses or land how ever the matter may be intricated by passing through many perhaps unknowing hands yet the sinne and obligation to satisfaction will necessarily lie at the first door whence if just restitution doe not follow the seller may purchase Hell to boot Think not now on this discourse that the onely fraud is in selling there may be no lesse though not so frequent fraud in buying also whether in unjust payment by false coyne or by injustice of quantities as in buying by weights or measures above allowance or by wrong valuation of the substance quality of the commodity misknown by the seller As for instance a simple man as I have knowne it done in the Western parts findes a parcell of Ambergris cast upon the sands he perceiving i◠to be some unctious matter puts it to the base use of his shooes or his cart wheel a merchant that smels the worth of the stuffe buyes it of him for a small summe giving him a shilling or two for that which himselfe knowes to be worth twenty pounds the bargaine is fraudulent and requires a proportionable compensation to the ignorant seller into whose hands providence hath cast so rich a booty Shortly in all these intercourses of trade that old and just rule which had wont to sway the traffique of heathens must much more take place amongst Christians cum bonis benè agier that honest men must be honestly dealt with and therefore that all fraud must be banished out of their markets or if it dares to intrude soundly punished and mulcted with a due satisfaction CASE VII How far and when am I bound to make restitution of another mans goods remaining in my hand REstitution is a duty no lesse necessary than rarely practised amongst Christians The Arch publican Zacheus knew that with this he must begin his conversion and that knowne rule of Saint Austen is in every mans mouth No remission without restitution For this act is no small piece of commutative Justice which requires that every man should have his owne Most just therefore it is that what you have taken or detained from the true owner should be restored neither can it be sufficient that you have conceived a drye and bootlesse sorrow for your wrongfull detention unlesse you also make amends to him by a reall compensation But you are disabled to make restitution by reason of want your will is good but the necessity into which you are fallen makes you uncapable of performance See first that it be a true and not fained necessity Many a one like to leud criples that pretend false soares counterfeit a need that is not and shelter themselves in a willing Jaile there living merrily upon there defrauded creditor whom they might honestly satisfie by a well improved libertie This case is damnably unjust but if it be a true necessity of Gods making it must excuse you for the time till the same hand that did cast you downe shall be pleased to raise you up againe then you are bound to satisfie and in the meane time lay the case truly before your creditor who if he be not mercilesse where he sees a reall desire and indeavour of satisfaction will imitate his God in accepting the will for the deed and wait patiently for the recovery of your estate You ask now
to whom you should tender restitution To whom but the owner But he you say is dead That will not excuse you he lives still in his heires It is memorable though in a small matter which Seneca reports of a Pythagorean Philosopher at Athens who having run upon the score for his shooes at a shop there hearing that the shoomaker was dead at first was glad to think the debt was now paid but straight recollecting himselfe he sayes within himselfe Yet howsoever ever the shoomaker lives still to thee though dead to others and thereupon puts his money into the shop as supposing that both of them would finde an owner It is a rare case that a man dyes and leaves no body in whom his right survives But if there be neither heire nor executor nor administrator nor assigne the poore saith our Saviour ye shall have alwayes with you Make thou them his heire Turne your debt into almes Obj. But alas you say I am poore my selfe what need I then look forth for any other Why may not I employ my restitution to the reliefe of my owne necessity Sol. It is dangerous and cannot be just for a man to be his owne carver altogether in a business of this nature You must look upon this money as no more yours than a strangers and howsoever it be most true that every man is nearest to himselfe and hath reason to wish to bee a sharer where the need is equall yet it is fit this should be done with the knowledge and approbation of others Your Pastor and those other that are by authority interessed in these publique cares are fit to be acquainted with the case if it be in a matter meet to be notified as a businesse of debt or pecuniary ingagement let their wisdome proportion the distribution But if it be in the case of some secret crime as of theft or cozenage which you would keep as close as your owne heart the restitution must be charged upon your conscience to be made with so much more impartiality as you desire it more to be concealed Herein have a care of your soule what ever becomes of your estate As for the time of restitution it is easily determined that it cannot well be too soone for the discharge of your conscience it may be too late for the occasions of him to whom it is due Although it may fall out that it may prove more fit to deferre for the good of both wherein charity and justice must be called in as arbitrators The owner calls for his money in a riotous humour to mis-spend it upon his unlawfull pleasure if your delay may prevent the mischiefe the forbearance is an act of mercy The owner calls for a sword deposited with you which you have cause to suspect he meanes to make use of for some ill purpose your forbearing to restore it is so both charitable and just that your act of delivery of it may make you accessary to a murther Whereto I may adde that in the choice of the time you may lawfully have some respect to your selfe for if the present restitution should be to your utter undoing which may be avoided by some reasonable delay you have no reason to shun anothers inconvenience by your own inevitable ruine in such case let the creditor be acquainted with the necessity his offence deprecated and rather put your selfe upon the mercy of a Chancery then be guilty of your owne overthrow But when the power is in your hand and the coast every way cleare let not another mans goods or mony stick to their fingers and thinke not that your head can long lye easily upon another mans pillow Yea but you say the money or goods mis-carried either by robbery or false trust ere you could employ them to any profit at all This will not excuse you after they came into your power you are responsible for them What compassion this may work in the good nature of the owner for the favour of an abatement must be left to his own brest your tye to restitution is not the lesse For it is supposed had they remained in the owners hands they had been safe if it were not your fault yet it was your crosse that they miscarried and who should bear your crosse but your self Shortly then after all pretences of excuse the charge of wise Solomon must be obeyed With-hold not good from the owners thereof when it is in the power of thine hand to doe it Prov. 3 17. CASE VIII Whether and how farre doth a promise extorted by fear though seconded by an oath bind my conscience to performance A Mere promise is an honest mans strong obligation but if it be withall backed with an oath the bond is sacred and inviolable But let me ask you what promise it is that you thus made and bound If it be of a thing unlawfull to be done your promise and oath is so farre from binding you to performance that it bindes you onely to repentance that ever you made it In this case your performance would double and heighten your sinne It was ill to promise but it would be worse to performe Herod is by oath ingaged for an indefinite favour to Salome She pitches upon Baptist's head He was sory for such a choice yet for his oaths sake hee thinkes hee must make it good Surely Herod was ill-principled that he could thinke a rash oath must binde him to murder an innocent He might have truly said this was more than he could doe for that we can do which we can lawfully doe But if it be a lawfull thing that you have thus promised and sworne though the promise were unlawfully drawne from you by feare I dare not perswade you to violate it It is true that divers learned Casuists hold that a promise drawne from a man by feare is void or at least revokable at pleasure and so also the oath annexed which followes the nature of the act whereto it appends chiefly upon this ground that both these are done without consent meere involuntary acts since nothing can be so contrary to consent as force and feare But I dare not goe along with them for that I apprehend there is not an absolute involuntarinesse in this engagement but a mixt one such as the Philosopher determines in the Mariner that casts his goods over board to save his life in it selfe he hath no will to doe it but here and now upon this danger imminent he hath an halfe-will to perform it Secondly I build upon their owne ground There is the same reason they say of force and of fraud now that a promise and oath drawne from us by fraud bindes strongly we need no other instance then that of Joshua made to the Gibeonites there could not be a greater fraud than lay hid in the old shooes thred-bare garments rent bottels and mouldy provisions of those borderers who under the pretence of a remote nation put themselves under the interest and
protection of Israel Josh. 9. 12 13. c. the guile soone proved apparent yet durst not Joshua though he found himselfe cheated into this covenant fall off from the league made with them which when after many ages Saul out of politique ends went about to have broken we see how fearfully it was avenged with a grievous plague of famine upon Israel even in Davids dayes 2 Sam. 21. 1. who was no way accessary to the oppression neither could be otherwise expiated than by the bleeding of Saul's bloody house When once we have interessed God in the businesse it is dangerous not to be punctuall in the performance If therefore a bold thiefe taking you at an advantage have set his dagger to your brest and with big oathes threatned to stab you unlesse you promise and sweare to give him an hundred pounds to be left on such a day in such a place for him I see not how if you be able you can dispence with the performance the onely help is which is well suggested by Lessius that nothing hinders why you may not when you have done call for it back againe as unjustly extorted And truly we are beholding to the Jesuite for so much of a reall equivocation why should you not thus right your selfe since you have onely tyed your selfe to a mere payment of the summe upon staking it downe for him you are free But if he have forc'd you to promise and swear not to make him knowne you are bound to be silent in this act concerning your selfe but withall if you find that your silence may be prejudiciall to the publique good for that you perceive the licentiousnesse of the offender proceeds and is like so to doe to the like mischiefe unto others you ought though not to accuse him for the fact done unto you yet to give warning to some in authority to have a vigilant eye upon so leud a person for the prevention of any further villany But if it be in a businesse whose perill rests onely in your selfe the matter being lawfull to be done your promise and oath though forced from you must hold you close to performance notwitstanding the inconveniencies that attend If therefore you are dismissed upon your Parole for a certaine time to returne home and dispose of your affaires and then to yield your selfe againe prisoner to an enemy the obligation is so strict and firme that no private respects may take it off and it should be a just shame to you that a Pagan should out of common honesty hold himself bound to his word not without the danger of torment and death when you that are a Christian slip away from your oath CASE IV. Whether those moneys or goods which I have found may be safely taken and kept by me to my owne use IT is well distinguished by Sotus out of Aquinas that those things which may be found are either such as call no man master as some pearl or precious stone or Ambergris lying upon the shore or such as have an owner but unknowne to us or as we may adde to make up the number compleat such as whose owner we know Where the true owner is knowne speedy restitution must follow otherwise the detention is in the next doore to theft Where the commodity found hath no owner it justly falls to the right of the first finder for both the place and the thing are masterlesse adespota and common offering themselves to the next commer The onely difficulty is in those things which have an unknown owner And certainly common justice and honesty suggests to us that we may not seize on commodities of this kinde as absolutely our own the casualty of their mis-laying doth not alter their propriety they are still his that lost them though out of his sight yet not out of his right and even naturall Justice would give every man his owne The Lawes both Civill and Canon and Municipall doe sufficiently guide our practise in many particular cases of this nature and our Conscience must lead us to follow them If they be quick commodities as horses sheep kine and the like which we call Waifes and Strayes every one knowes they are to be publiquely impounded that upon search the owner may be the surer to find them and if he come not in the sooner to be openly cryed in severall markets that the noise of his own neglected goods may come to his eare and if upon a continuing silence they be put into the Custody of the Lord of the Manour who is most likely to be responsible and he shall make use of them before his year and day be expired he shall not doe it without some mark of distinction that yet the true owner may know they are not challenged by the present possessour as his owne but lye open to the just claime of their true master But if they be dead commodities as a jewell a purse or some ring of price or the like the finder may not presently smother up the propriety of it in his owne cofer his heart tells him that the meer accident of his finding it cannot alienate the just right of it from the true owner he is therefore bound in conscience in an honest sincerity to use all good means for the finding out of the right proprietary whether by secret inquiry or open publication and if after due inquisition no claime shall be made to it for the present he shall reserve it in his hand in expectation of a just challenge upon the assurance whereof how late soever he is bound to restore it to the proper owner who on the other side shall faile in his duty of gratitude if he returne not some meet acknowlegement of that good office and fidelity In all which mutuall carriages we ought to be guided by those respects which we could wish tendered to our selves in the like occasions Mean while in all the time of our custody we are to looke upon those commodities as strangers making account of such a potentiall right onely in them as we are ready and desirous to resigne to the hands that purchased and lost them On the contrary no words can expresse the horrible cruelty and injustice that is wont to be done in this kinde not onely on our shores but in other nations also upon the ship-wrecked goods both of strangers and our own compatriots whiles in stead of compassioning and relieving the losse and miseryes of our distressed bretheren every man is ready to run upon the spoile and as if it were from some plundered enemy is eagerly busie in carrying away what riches soever come to hand which they falsly and injuriously terme Gods Grace when as indeed it is no other than the Devils booty This practise can passe for no other than a meere robbery so much more haynous as the condition of the mis-carried owner is more miserable what a foule inhumanity is this to persecute him whom God hath smitten and upon no
man-slayer justly shed than any others I am sure Phineas thought not so nor Samuel after him and which is most of all that the honor and priviledges of the Sonnes of Levi were both procured and seoffed on them upon an injoyned blood-shed Onely here is the favour and mercy of that learned Casuist that Clerks and Votaries are not alwayes bound rather to dye than kill for saith he if such religious persons should bethink himselfe that he is in a deadly sinne and should thereupon feare that he should be damned if he were killed in that wofull and desperate estate hee were then bound by all meanes to defend himselfe and to preferre the safety of his owne soule before the life of another As if nothing but the feare of damnation could warrant a man for his owne safeguard as if nothing but the danger of hell could authorize an holy person to be his owne guardian as if the best of lives were so cheap and worthlesse that they might be given away for nothing whereas contrarily Precious in the sight of the Lord is the death of all his Saints Psalm 116. But in such a case according to the opinion of this great Casuist charity to our selves doth not more arme and enforce our hand than charity to our neighbour holds it and bindes it up We may not kill lest the man-slayer dying in the attempt of this murther should everlastingly perish Surely I cannot but admire this unreasonable mercy in a father of the Society Where was this consideration when so many thousands of innocent persons were doomed to be blown up in a state of impenitence whose unrepented heresie must needs have sent them up instantly to their hell By this reason a malefactor if he be obdured in his sinne and professeth to bee remorslesse may not feele the stroke of Justice Shortly then if a man will needes be wicked to my destruction the evill is his owne let him beare his owne guilt let me looke to my owne indempnity The case is yet more difficult where the attempt is not upon my person but my goods if a man will be offering to robbe my house or to take my purse what may I doe in this case Surely neither charity nor justice can disswade me from resisting the lawes of God and man will allow me to defend my owne and if in this resistance the Thief or Burglayer miscarry his blood will be upon his owne head although in the meane time charity forbids that this slaughter should be first in my intention which is primarily bent upon my owne safety and the vindication of my owne just propriety the blood that followes is but the unwilling attendant of my defence of the shedding whereof God is so tender that he ordained it onely to be inoffensively done in a nightly robbery Exodus 22. 2. where the purpose of the thiefe is likely to bee more murtherous and the act more uncapable of restitution What then if the thiefe after his robbery done ceasing any further danger of violence shall betake himselfe to his heeles and run away with my money In such a case if the summe be so considerable as that it much imports my estate how ever our municipall lawes may censure it with which of old even as killing se defendendo was no lesse than felony of death my Conscience should not strike me if I pursue him with all might and in hot chase so strike him as that by this meanes I disable him from a further escape for the recovery of my owne and if hereupon his death shall follow however I should passe with men God and my owne heart would acquit mee Neither doubt I to sayâ— the like may be done upon a forcible attempt of the violation of the Chastity of either sexe A case long agoe adjudged by the doome of nature it selfe in Marius the Generall of the Roman army as Cicero tells us clearely acquitting a young man for killing a Colonel that would have forced him in this kind But I may not assent to Dominicus Bannez Petrus Navarrus and Cajetan though grave Authors who hold that if a man goe about upon false and deadly criminations to subborne witnesses against mee to accuse me to a corrupted Judge with a purpose to take away my life in a colour of justice if I have no other way to avoid the malice I may lawfully kill him It were a wofull and dangerous case if every man might be allowed to carve himselfe of justice Meere accusations are no convictions How know I what God may work for me on the Bench or at the Barre what evidence hee may raise to cleare mee what confusion or contraction hee may cause in the mouthes of the hired witnesses what change he may work in the Judge what interposition of higher powers There is a providence in this case to be relyed upon which can and will bring about his owne holy purposes without our presumptuous and unwarrantable undertakings CASE II. Whether may I lawfully make use of a Duell for the deciding of my right or the vindication of my honour I Have long agoe spent my opinion upon this point in a large epistolar discourse which I finde no reason to alter thither I might referre you to spare my labour but lest perhaps that should not be at hand shortly thus The sword in a private hand was never ordained to be a decider of any controversies save this one whether of the two is the better Fencer nor yet that alwayes since Eccles. 9. 11. The race is not to the swift nor the battaile to the strong as Solomon hath observed It can be no better therefore than a meere tempting of God as Rodriguez justly censures it to put our selves or our cause upon so unwarranted a tryall I finde but two practises of it in the Records of Scripture the one that famous challenge of Goliah which that proud Philistim had not made if he had not presumed of his Giantly strength and stature so utterly unmatchable by all Israel 1 Sam. 17. 24. that the whole host was ready to give back upon his appearance he knew the advantage so palpable that none would dare to undertake the quarrell and had still gone on to triumph over that trembling army had not Gods inexpected champion by divine instinct taken up the monster and vanquisht him leaving all but his head to bedung that earth which had lately shaken at his terrour The other was in that mortall quarrell betwixt Joab and Abner on the behalfe of their two Masters David and Ishbosheth 2 Sam. 2. 14. wherein Abner invites his rivall in honor to a Tragicall play as he termes it a monomachie of twelve single combatants on either part which was so acted that no man went victor away from that bloudy Theater Only it is observable that in both these conflicts still the challengers had the worst In imitation of which latter I cannot allow that which I find frequently
accordingly The question is onely of the law of private conscience how farre that will allow a man to goe in case of a sentence passed upon him whether of death or bonds And first of all if such sentence be unjustly passed upon an innocent no man can doubt but that hee may most lawfully by all just meanes worke his owne freedome But if an offender what may he doe The common opinion of Casuists is peremptory That he that is kept in prison for any offence wherupon may follow death or losse of limb whether the crime be publique or private may lawfully flee from his imprisonment and may for that purpose use those helps of filing or mining which conduce to this purpose Their ground is that universall rule and instinct of selfe-preservation which is naturall to every creature much more eminent in man who is furnished with better faculties than the rest for the working of his own indemnity Whereto is added that main consideration of Aquinas That no man is bound to kill himselfe but onely doomed to suffer death not therefore bound to doe that upon which death will inevitably follow which is to wait in prison for the stroak if he may avoid it it is enough that he patiently submits to what the law forces upon him though he doe not cooperate to his owne destruction his sentence abridges him of power not of will to depart Whereupon they have gone so far as to hold it in point of conscience not unlawfull for the friends of the imprisoned to conveigh unto him files and cords or other instruments usefull for their escape But herein some better-advised Doctors have justly dissented from them as those whose Judgement hath not beene more favourable to malefactors than dangerous and prejudiciall to the Common-wealth for how safe soever this might seeme in lighter trespasses yet if this might be allowed as in conscience lawfull to be done to the rescue of murtherers traytors or such other flagitious villains what infinite mischiefe might it produce and what were this other than to invite men to be accessary to those crimes which the law in a due way intends to punish Certainly by how much a more laudable act of Justice it is to free the society of men from such wicked miscreants by so much more sinfull and odious an office it were to use these sinister means for their exemption from the due course of Justice But howsoever for another man to yield such unlawfull aide is no better than a foule affront of publique Justice and enwrappes the agent in a partnership of crime yet the law of nature puts this liberty upon the restrained party himselfe both to wish and indeavour his owne deliverance Although not so but that if the prisoner have ingaged himselfe by solemne promise and oath to his keeper not to depart out of his custody honesty must prevaile above nature and he ought rather to dye than violate that bond which is stronger than his irons Very Heathens have by their example taught us this lesson to regard our fidelity more than our life Thus it should be and is with those that are truly Christian and ingenuous under what ever capacity but in the case of gracelesse and felonious persons Goalers have reason to looke to their bolts and locks knowing according to the old rule of wise Thales that he who hath not stuck at one villany will easily swallow another perjury will easily downe with him that hath made no bones of murther But where the case is entire no man can blame a captive if he would bee free and if hee may untie the knot of a cord wherewith he was bound why may he not unriver or grate an iron wherewith he is fettered for so much as hee is not bound to yeild or continue a consent to his owne durance This charge lies upon the keeper not the prisoner A man that is condemned to perish by famine yet if he can come by sustenance may receive and eat it That Athenian malefactor in Valerius Maximus sentenced to die by hunger was never found fault with that he maintained himself in his dungeon by the brests of his good-natur'd daughter And if a man be condemned to be devoured by a Lion there can be no reason why he should not what he may resist that furious beast and save his owne life But when I see our Romish Casuists so zealously tender in the case of Religious persons as that they will not allow them upon a just imprisonment to stirre out of those grates whereto they are confined by the doom of their Prelates And when I see the brave resolutions of holy Martyrs that even when the doores were set open would not flee from a threatned death I cannot but conclude that whatsoever nature suggests to a man to work for his owne life or liberty when it is forfeited to Justice yet that it is meet and commendable in a true penitent when he findes the doome of death or perpetuall durance justly passed upon him humbly to submit to the sentence and not entertaine the motions and meanes of a projected evasiō but meekly to stoop unto lawfull authority and to wait upon the issue whether of Justice or Mercy and at the vvorst to say vvith the Poet Merui nec deprecor CASE V. Whether and how far a man may be urged to an Oath AN Oath as it is a sacred thing so it must bee no otherwise than holily used whether on the part of the giver or taker and therefore may neither be rashly uttered nor unduly tendered upon sleight or unwarrantable occasions We have not to doe here with a promissory oath the obligation whereof is for another inquisition It is the assertory oath that is now under our hand which the great God by whom we sweare hath ordained to be an end of controversies At the mouth of two or three witnesses shall the matter be established Deuter. 19. 15. and 17. 6. As for secular Titles of mine or thine the propriety of goods or lands next after written evidences testimonies upon Oath must needs be held most fitly decisive the only scruples are wont to be made in causes criminall 1. Wherein surely we may lay this undoubted ground that no man is to be proceeded against without an accuser and that accusation must be made good by lawfull witnesses A Judge may not cast any man upon the plea of his owne ey-sight should this liberry be granted Innocence might suffer and Malice triumph Neither may any man be condemned upon hear-say which how commonly false it is daily experience sufficiently evinceth On the other side men are apt enough to connive at each others wickednesse and every man is loath to be an Informer whether out of the envy of the office or out of the conscience of his owne obnoxiousnesse And yet thirdly it is requisite that care should bee taken and all due meanes used by authority that the world may not be over-run with wickednesse
make him to seeme so in so much as those that know not the cause exactly may perhaps be mis-led to condemne him in their judgments But to the Judge whose eyes were witnesses of the parties innocence all the evidence in the world cannot make him other than guiltlesse so as that Judge shall be guilty of blood in slaying the innocent and righteous Secondly the law of judging according to allegations and proofs is a good generall direction in the common course of proceedings but there are cases wherein this law must vaile to an higher which is the law of Conscience Woe be to that man who shall tye himselfe so close to the letter of the law as to make shipwrack of conscience And that bird in his bosome will tell him that if upon what ever pretences he shall willingly condemne an innocent he is no better than a murtherer Thirdly it is not the bare letter of the law that wise men should stand upon but the drift and intention of the law of that we may in some sense say as the Apostle did of an higher law The letter killeth Now every reasonable man knowes that the intention of the law is to save and protect the innocent to punish onely the guilty The Judge therefore shall be a perverter of law if contrary to his knowledge he shall follow the letter against the intention in condemning an Innocent Let no man now tell me that it is the law that condemnes the man and not the Judge This excuse will not serve before the Tribunall of heaven The law hath no tongue It is the Judge that is lex loquens If he then shall pronounce that sentence which his owne heart tells him is unjust and cruell what is he but an officious minister of injustice But indeed what law ever said Thou shalt kill that man whom thou knowest innocent if false witnesse will sweare him guilty This is but a false glosse set upon a true text to countenance a man in being an instrument of evill What then is in this case to be done Surely as I durst not acquit that Judge who under what ever colour of law should cast away a known Innocent so I durst not advise against plaine evidences and flat dispositions upon private knowledge that man to be openly pronounced guiltlesse and thereby discharged for as the one is a grosse violation of justice so were the other a publique affront to the law and of dangerous consequence to the weale-publique Certainly it could not but be extreamely unsafe that such a gappe should bee opened to the liberty of judgement that a private brest should be opposed with an apparent prevalence against publique convictions our Casuists have beaten their braines to finde out some such evasions as might save the innocent from death and the Judge from blood-guiltinesse Herein therefore they advise the Judge to use some secret meanes to stop the accusation or indictmenr a course that might be as prejudiciall to justice as a false sentence to sift the witnesses apart as in Susanna's case and by many subtile interrogations of the circumstances to finde their variance or contradiction If that prevaile not Cajetan goes so farre as to determine it meet which how it might stand with their law he knowes with ours it would not that the Judge should be fore all the people give his oath that hee knowes the party guiltlesse as whom he himselfe saw at that very houre in a place far distant from that wherein the fact is pretended to bee done Yea Dominicus à Soto could be content if it might be done without scandall that the prisoner might secretly be suffered to slip out of the gaole and save himselfe by flight Others think it the best way that the Judge should put off the cause to a superiour Bench and that himselfe should laying aside his scarlet come to the Bar and as a witnesse avow upon oath the innocence of the party and the falsity of the accusation Or lastly if he should out of malice or some other sinister ends as of the forfeiture of some rich estate be pressed by higher powers to passe the sentence on his own Bench that he ought to lay downe his Commission and to abdicate that power he hath rather than to suffer it forced to a willing injustice And truly were the case mine after all faire and lawfull indeavours to justifie the innoncent and to avoid the sentence I should most willingly yeild to this last resolution Yea rather my selfe to undergoe the sentence of death than to pronounce it on the knowne-guiltlesse hating the poore pusillanimity of Dominicus à Soto that passes a nimis creditu rigidum upon so just a determination and is so weakly tender of the Judges indempnity that he will by no means heare of his wilfull deserting of his office on so capitall an occasion In the main cause of life and death I cannot but allow and commend the judgement of Leonardus Lessius but when the question is of matters civill or lesse criminall I cannot but wonder at his flying off in these where in the businesse is but pecuniary or banishment or losse of an office he holds it lawfull for the Judge after he hath used all meanes to discover the falsenesse of the proofes and to hinder the proceedings if thus hee prevailes not to passe sentence upon those allegations and probations which himselfe knowes to be unjust The reasons pretended are as poor as the opinion For saith hee the Common-wealth hath authority to dispose of the estates of the Subjects and to translate them from one man to another as may be found most availing to the publique good and here there appeares just cause so to doe lest the forme of publique judgements should be perverted not without great scandall to the people neither is there any way possible to help this particular mans inconvenience and losse therefore the Common-wealth may ordaine that in such a case the Judge should follow the publique forme of Judicature though hereby it falleth out that a guiltlesse man is undone in his fortunes and yet his cause knowne to be good by him that condemnes it Thus he But what a loose point is this why hath not a man as true propriety in his estate as his life or what authority hath the Common-wealth causelesly to take away a mans substance or inheritance being that he is the rightfull owner more than a piece of himselfe When his patrimony is setled upon him and his in a due course of law and undoubted right of possession what just power can claime any such interest in it as without any ground of offence to dispossess him Or what necessity is there that the forme of publique judgements should be perverted unlesse an honest defendant must be undone by false sentence Or rather is not the forme of publique judgement perverted when innocence suffers for the maintenance of a formality Or how is the Judge other than a
by the Church to be believed are fundamentall A large ground-work of faith Doubtlesse the Church hath defined all things contained in the scripture to be believed and theirs which they call Catholick hath defined all those Traditionall points which they have added to the Creed upon the same necessity of salvation to be believed now if all these be the foundation which is the building what an imperfect fabrick doe they make of Christian Religion all foundation no walls no roofe Surely it cannot without too much absurdity be denied that there is great difference of Truthes some more important than others which could not be if all were alike fundamentall If there were not some speciall Truthes the beliefe whereof makes and distinguisheth a Christian the Authors of the Creede Apostolick besides the other Symboles received anciently by the Church were much deceived in their aime He therefore that believes the holy Scriptures which must be a principle presupposed to be inspired by God and as an abstract of the chiefe particulars thereof professeth to believe and embrace the Articles of the Christian faith to regulate his life by the law of Gods commandements and his devotion by the rule of Christ prescribed and lastly to acknowledge and receive the Sacraments expresly instituted by Christ doubtlesse this man is by profession a Christian and cannot be denyed to hold the foundation and whosoever shall wilfully impugne any of these comes within the verge of Heresie wilfully I say for meere error makes not an heretick if out of simplicity or grosse ignorance a man shall take upon him to maintaine a contradiction to a point of faith being ready to relent upon better light he may not be thus branded eviction and contumacy must improve his error to be hereticall The Church of Rome therefore hath beene too cruelly-liberall of her censures this way having bestow'd this livery upon many thousand Christians whom God hath owned for his Saints and upon some Churches more Orthodoxe than her selfe presuming upon a power which was never granted her from heaven to state new articles of faith and to excommunicate and barre all that shall dare to gainsay her oracles Whereas the great Doctor of the Gentiles hath told us from the spirit of God that there is but one Lord one faith one baptisme Ephes. 4. 5. and what faith is that S. Jude tells us Iude 3. The faith that was once delivered the Saints so that as well may they make more reiterations of Baptisme and multiplicities of Lords as more faiths than one some explications there may be of that one faith made by the Church upon occasion of new-sprung errours but such as must have their grounds from fore-written truths and such as may not extend to the condemnation of them whom God hath left free new articles of faith they may not be nor binde farther than God hath reached them Hereticks then they are and onely they that pertinaciously raze the foundation of the Christian faith what now must be done with them surely first if they cannot be reclaimed they must be avoided It is the charge of the beloved Disciple to the elect Lady 2 John v. 10. If any man come unto you and bring not that is by an ordinary Hebraisme opposes this doctrine receive him not into your houses neither bidde him God speede But the Apostle of the Gentiles goes yet higher sor writing to Titus the great Super-intendent of Crete his charge is Tit. 3. 10. A man that is an Heretick after the first and second admonition reject Now when wee compare the charge with the person we cannot but finde that this rejection is not a meer negative act of refraining company but a positive act of censure so as he who had power to admonish had also power to reject in an authoritative or judicatory way He sayes then Devita reject or avoid not as Erasmus too truly but bitterly scoffes the Romish practise De vita tolle This of killing the heretick as it was out of the power of a spirituall supervisor so was it no lesse farre from the thoughts of him that desired to come in the spirit of meekness Fagots were never ordained by the Apostle for arguments to confute Hereticks this bloudy Logick and Divinity was of a much later brood and is for a Dominick not a Paul to owne for certainely faith is of the same nature with love it cannot be compelled perswasions may move it not force These intellectuall sinnes must look for remedies of their owne kinde But if either they be as it is often accompanied with damnable blasphemies against God whether in his essence or attributes or the three incomprehensible persons in the all-glorious Deity or the blessed mediator betwixt God and man Jesus Christ in either of his natures or else shall be attended with the publique disturbances and dangerous distempers of the Kingdome or State wherein they are broached the Apostle's wish is but seasonable in both a spiritual and a bodily sense Gal. 5. 12. Would to God those were cut off that trouble you In the mean time for what concernes your selfe if you know any such as you love God and your soules keepe aloofe from them as from the pestilence Epiphanius well compares heresie to the biting of a mad dog which as it is deadly if not speedily remedied so it is withall dangerously infectious not the tooth onely but the very foame of that envenomed beast carries death in it you cannot be safe if you avoid it not CASE VI. Whether the lawes of men doe binde the Conscience and how far we are tyed to their obedience BOth these extreames of opinion concerning this point must needs bring much mischiefe upon Church and Kingdome Those that absolutely hold such a power in humane lawes make themselves slaves to men Those that deny any binding power in them run loose into all licentiousnesse Know then that there is a vast difference betwixt these two To bind the conscience in any act and to bind a man in conscience to do or omit an act Humane laws cannot do the first of them the latter they may and must doe To binde the conscience is to make it guilty of a sin in doing an act forbidden or omitting an act injoyned as in it selfe such or making that act in it selfe an acceptable service to God which is commanded by men Thus humane lawes cannot bind the conscience It is God onely 1 John 3. 21. who as he is greater than the Conscience so hath power to binde or loose it Esay 31. 22. It is he that is the onely Law giver to the Conscience Jam. 4. 12. Princes and Churches may make lawes for the outward man but they can no more binde the heart than they can make it In vain is that power which is not inabled with coertion now what coertion can any humane power claim of the heart which it can never attain to know the spirit of man therefore is subject onely to the father
name of the Lord Jesus tels us The word of God is not bound 2 Tim. 2. 9. not bound either in fetters or within limits Oh that wee could approve to God and our Consciences that this is our main motive and principall drift in our western plantations but how little appearance there is of this holy care and endeavour the plaine dealer upon knowledge hath sufficiently informed us Although I now heare of one industrious spirit that hath both learned the language of our new-Islanders and printed some part of the Scripture in it and trained up some of their Children in the principles of Christianity a service highly acceptable to God and no lesse meritorious of men The Gospell then may be must be preached to those heathens otherwise they shall perpetually remaine out of the estate of salvation and all possible meanes must be used for their conversion but herein I must have leave to depart from Victoria that he holds it lawfull if the savages do not freely permit but goe about to hinder the preaching of the Gospell to rayse war against them as if he would have them cudgeled into Christianity surely this is not the way It is for Mahumetans to profess planting religion by the sword it is not for Christians It is a just clause therfore that he puts in that the slaughters hereupon raised may rather prove an hindrance to the conversion of the savages as indeed it fell out the poor Indians being by these bloody courses brought into such a detestation of their masters the Castilians that they profest they would not goe to heaven if any spanyards were there The way then to plant the Gospel of Christ successefully among those barbarous soules must be only gentle and plausible first by insinuating our selves into them by a discreet familiarity and winning deportment by an holy and inoffensive living with them by working upon them with the notable examples of impartiall justice strict piety tender mercy compassion chastity temperance all other Christian virtues and when they are thus won to a liking of our persons and carriage they will be then wel capable of our holy counsels Then will the Christian faith begin to relish with them and they shall now grow ambitious of that happy condition which they admire in us then shall they be glad to take us into their bosoms and think themselves blessed in our society and cohabitation Lo this is the true way of Christian conquests wherein I know not whether shal be the greater gainer the victor or the conquered each of them shall blesse other and both shall be blessed by the Almighty CASE IX Whether I need in case of some foule sin committed by mee to have recourse to Gods Minister for absolution and what effect I may expect therefrom A Meane would do well betwixt two extremes the careless neglect of our spirituall fathers on the one side and too confident reliance upon their power on the other some there are that doe so over-trust their leaders eyes that they care not to see with their own others dare so trust their own judgement that they think they may sleight their spiritual guides there can be no safety for the soul but in a mid-way betwixt both these At whose gyrdle the keyes of the kingdom of heaven doe hang mee thinks wee should not need dispute when we hear our Saviour so expresly deliver them to Peter in the name of the rest of his fellowes and afterwards to all his Apostles and their lawfull successors in the dispensation of the doctrine and discipline of his Church In the dispensation of doctrine to all his faithfull Ministers under the Gospell In the dispensation of discipline to those that are entrusted with the mannaging of Church-government with these latter we meddle not neither need we if we had occasion after the so learned elaborate discourse of the power of the Keyes set forth by judicious Doctor Hammond to which I suppose nothing can be added The former is that which lies before us Doubtlesse every true minister of Christ hath by virtue of his first and everlasting commission two keyes delivered in his hand the key of knowledg and the key of spirituall power the one whereby he is enabled to enter and search into not only the revealed mysteries of salvation but also in some sort into the heart of the penitent there discovering upon an ingenious revelation of the offender both the nature quality and degree of the sinne and the truth validity and measure of his repentance The other whereby he may in some sort either lock up the soul under sin or free it from sinne these keyes were never given him but with an intention that he should make use of them upon just occasion The use that hee may and must make of them is both generall and speciall Generall in publishing the will and pleasure of God signified in his word concerning sinners pronouncing forgivenesse of sins to the humble penitent and denouncing judgement to the unbeleeving and obdured sinner In which regard he is as the Herald of the Almighty proclaming war and just indignation to the obstinate and tendring terms of pardon and peace to the relenting and contrite soule or rather as the Apostle stiles him 2 Cor. 5. 20. Gods Ambassador offering and suing for the reconciliation of men to God and if that be refused menacing just vengeance to sinners Speciall in a particular application of this knowledge and power to the soul of that sinner which makes his addresse unto him Wherein must be inquired both what necessity there is of this recourse and what aid and comfort it may bring to the soul. Two cases there are wherein certainly there is a necessity of applying our selves to the judgement of our spirituall guides The first is in our doubt of the nature and quality of the fact whether it be a sin or no sinne for both many sinnes are so gilded over with fair pretences and colourable circumstances that they are not to be de cryed but by judicious eyes and some actions which are of themselves indifferent may by a scrupulous conscience be mistaken for hainous offences Whither should we goe in these doubts but to our Counsaile learned in the Lawes of God of whom God himself hath said by his Prophet The Priests lips should keep knowledge and they should seeke the Law at his mouth for he is the messenger of the Lord of Hosts Mal. 2. 7. The second is in the irresoluble condition of our souls after a known sin committed wherein the burdened conscience not being able to give ease unto it self seeks for aid to the sacred hand of Gods Penetentiary here on earth there may find it That is that which Elihu as upon experience suggesteth unto Job on his dunghill Job 33. 22. The soul of the remorsed draweth near to the grave and his life to the destroyers ver 23. But if there bee a messenger of God with him an interpreter one
a further progresse made towards the perfection of humane life And if you tell me that the life of the mother might thus be preserved whereas otherwise both she and all the possibilities of further conceptions are utterly lost I must answer you with that sure and universall rule of the Apostle That wee may not doe evill that good may come thereon Rom. 3. 8. The second consideration is of the nature of the receit and the intention of the prescriber There are prescripts that may in and of themselves tend towards cure and may have ordinarily such an effect but yet being used and applyed for the mothers remedy may prove the losse of the conception being yet inanimate these if they be given with no other intention than the preservation of the mothers life may bee capable of excuse for that the inconvenience or mischief rather which followed upon the receits was accidentall and utterly against the minde and hopes of him that advised them But if the conception bee once formed and animated the question will be so much more difficult as the proceedings of nature are more forward Whereupon it is that the Septuagint in their Translation as Lessius well observes have rendered that Mosaicall law in Lxod. 21. concerning abortions in these termes If a man strike a woman that is with child and shee make an abortion if the child were formed he shall give his life for the life of the child if it were not formed he shall be punished with a pecuniary mulct to her husband applying that to the issue which the Vulgar Latin understands of the mother and making the supposition to be of a formation and life which the Latine more agreeably to the Originall makes to be Death and our English with Castalion expresses by Mischief but whether the Mischief be meant of the death of the mother or of the late-living issue the Scripture hath not declared Cornelius à Lapide taking it expresly of the mothers death yet drawes the judgement out in an equall length to the death of the childe once animated making no difference of the guilt since the infants soule is of no lesse worth than hers that beates him In this case of the conception animated I find the Casuists much divided Whiles some more tender than their fellowes will not allow in the utmost extremity of a dying mother a medicine that may be directly curative to be given her if it should be with any apparent danger of the childe in case that the child may be probably drawne forth alive which they doe upon this false and bloudily uncharitable ground that the child dying without Baptisme is liable to eternall damnation which wofull danger therefore the mother ought to prevent though with the certaine hazard of her own life but the foundation of this judgement being unsound since to doome the children of believing Parents inevitably to hell for the want of that which they are not possibly capable to receive is too cruell and horrible the structure must needes totter These men whiles they professe themselves too carefull of the soule of the childe which yet may perhaps be safer than their owne seeme to bee somewhat too hard-hearted to the body of the mother Others more probably hold that if the case be utterly desperate and it bee certaine that both mother and childe must undoubtedly perish if some speedy remedy be not had it may then be lawfull to make use of such receits as may possibly give some hopes to save the mother though not without some perill of the child But all this while the intentions and indeavours must be no other than preservatory however it pleaseth God to order the events Shortly no man that purposely procureth an abortion as such can wash his hands from blood No woman that wilfully acts or suffers it however the secrecy may exempt her from the danger of humane lawes can thinke to avoid those judgments of the righteous God which he hath charged upon murderers I cannot here therefore forbeare to give the world notice of the impious indulgence of a late Pope in this kind Sixtus quintus who in our time sat in the See of Rome finding the horrible effects of that liberty which too many both secular and religious persons tooke to themselves in this matter of abortion in a just detestation of that damnable practice thought meet in much fervour of spirit to set forth his Bulla Cruciata than which there was never a more zealous piece published to the world wherein that Pope pronounces all those which have any hand in the acting or procuring of this wicked fact of the ejecting of conceptions whether animate or inanimate formed or informed by potions or medicaments or any other meanes whatsoever to have incurred both the crime and punishment of man slaughter charging due execution to be done upon such persons accordingly And withall in a direfull manner excommunicates them and sends them to hell without repentance reserving the absolution solely to himselfe and his successors Now comes a late successor of his Gregory 14 who finding the sentence too unreasonably hard for his petulant and thriftie Italians and indeed for all loose persons of both sexes mitigates the matter and as a Spanish Casuist expresses it truly in the very first yeare of his Pontificate in a certaine Constitution of his dated at Rome the last day of May 1591. delevit censuras quas Sixtus V. imposuerat contra facientes procurantes c. abolisht and took off those heavy censures which Sixtus had imposed and reduced the terrible punishments by him ordained to be inflicted unto a poore bare irregularity and determines that any Confessor allowed by the Ordinary may absolve from this sin of procured abortion By the sleightnesse of the censure in effect animating the sin An act well becomming the mother of Fornications After all which Pandarisme let all good Christians know and resolve the crime to be no lesse than damnable But withall let me advise you with Martinus Vivaldus that what I have herein written against the procurers of abortions may not be extended to the practise of those discreet Physitians and Chirurgeans who being called to for their aide in difficult and hopelesse child-births prescribe to the woman in travaile such receits as may be like to hasten her delivery whether the childe be alive or dead forasmuch as the conception is now at the full maturity and the indeavour of these Artists is not to force an abortement but to bring forward a naturall birth to the preservation of the mother or the childe or both CASE IV. Whether a man adjudged to perpetuall imprisonment or death may in conscience indeavour and practise an escape WHat the Civill or Common Lawes have in this case determined for the publique good comes not within the compasse of our disquisition Let the Guardians and Ministers of those Lawes looke carefully to the just execution of them