which the Lord thy God GIVETH THEE Canaan is the Land promised and given to the Jews only not to the Gentiles nor ever intended for them it being indeed impossible that all Jews and Gentiles should live in that little Land But to pass by the promises which do not so properly belong to our present business I say 2. That it is as certain that all the Mosaical Laws de Poenis are not natural but Positive and Judicial Laws which never bound any save the Jews or those who became Proselytes and voluntarily submitted to them to whom only they were given That this may further and more distinctly appear it is to be confidered as certain and consessed I. That the Law of Nature as all just Laws do binds all men 1. Ad Obedientiam to a willing and perfect Obedience And 2. upon supposition of sin ad Poenam But the Punishment to which the Law of Nature binds is Death and that Eternal Death For as in Adam by reason of sin all die so they had died eternally had not God most graciously sent his Son to redeem them from that death Every sin how small soever by the Covenant of Works of which the Moral Law was the condition on mans part to be perform'd was a capital crime and Death the Wages or punishment by that law due to it But those many various laws de Poenis which occur in the Mosaical law which he gave to the Jews are not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 non leges nobiscum nataE in cord naturalitere inscriptae not Natural laws writ in our hearts and born with us But they are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ‑ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 leges à Deo datae positive Laws which neither do nor ever did bind any but the Jews As may appear 2. Because they were given only to the Jews and that after they came out of Egypt which was after the Fall of Adam above 2450 years But those Mosaical Laws de Poenis of which we speak were never given nor publish'd to the Gentiles But had those Laws de Poenis been Natural Laws as the Precepts in the Decalogue are they would have bound all mankind from the Creation to this day and that indispensably and then all Christians should be bound to obey and practise those Penal laws and punish all Malefactors with such punishments only as in those laws are appointed which is evidently untrue as may appear 3. By the judgment and consent of the Christian World for no Christian Church or State did ever think themselves bound to observe those Mosaical Poenal Laws and to punish transgressors of the Divine Law with those punishments which are prescribed by Moses For instance That the stealing of a Sheep should be punish'd with restitutio in quadruplum with restoring four sheep for one if the thief had sold or kill'd the sheep he stole but if the sheep was found in his hand who stole it he was only to restore two sheep for one That the stealer of an Ox should restore five Oxen. That he who curseth or who smiteth his father or mother or will not obey them should be punished with death and stoned with stones That to do any of our own work so much only as to gather a few sticks on the Sabbath day should be capital and the offender in any one of these things surely put to death although these and such other Laws de Poenis were Divine given to the Jews by Moses and obliged them yet no Christian Church or State did ever think themselves obliged to the observation and practice of them And they had good ground in the Gospels to think so For 4. Our Blessed Saviour in his Sermon on the Mount explains and confirms all the Moral Laws de Officiis yet those severe Mosaical Laws de Poenis he did not confirm But expresly declares that legal severity to be inconsistent with the Charity of the Gospel For though by the Mosaical law a Jew might justly require and the Judge give an eye for an eye and a tooth for a tooth yet our Blessed Saviour expresly declares against such legal severity You have heard saith he it has been said in the Law of Moses an eye for an eye and a tooth for a tooth But I say unto you Resist not evil c He does not allow that severity in poenis in the Gospel which Moses allow'd the Jews under the Law and therefore we may be sure that it was not any Moral or Natural Law which required those punishments appointed for several sins in the Law of Moses for then they had been unalterable nor would our Blessed Saviour have contradicted them but it was the positive law of Moses which required them of the Jews to whom only these Laws were given and obligatory And here for further evidence of this truth it is to be considered 1. That in that Mosaical Law which is ignorantly or maliciously urged to prove that our Gracious Soveraign cannot pardon murder the strictest binding words are these The Murderer SHALL SURELY BE PUT TO DEATH Therefore say they he cannot be pardon'd They who reason thus did not well consider the consequence of such arguing from the Penal Laws in Moses For if this argument be good Moses says The Murderer shall surely be put to death Ergo He cannot be pardon'd Then this grounded on the same law of Moses will be every way as good and concluding The same Moses says Whosoever doth ANY work on the Sabbath-day he shall SURELY be put to death Ergo He cannot be pardon'd If such Logick were good it would conclude all men to be unpardonably guilty of death seeing I believe there is no man who on some Lords-day has not done some work and therefore by such Logick as this must be unpardonably guilty of death But enough of this for indeed such arguments do not deserve any serious answer or confufutation Sure I am that never any Christian Church or State did or had any reason to believe That the severe Jewish Law for the observation of the Sabbath did oblige Christians and therefore there neither is nor can be any more reason why their severe Law against Murder should be now obligatory to Gentiles or Christians to whom it was never given 2. When the Law says The Murderer shall SURELY die our best Commentators out of the Rabbins say that this is spoken to the Judges before whom such Causes regularly came Now those Judges in the Jewish Commonwealth were appointed by the Supreme Power and by his Authority judged and determined Causes under him Admit then that the Judges who were Magistrates Subordinate to the Supreme Power were to take no satisfaction for the life of a Murderer but were by that Law oblig'd to condemn and execute him yet it does not hence follow that the Supreme Power who made them Judges might
failings as our Blessed Saviour only excepted the best men in the world ever bad then all the members of that Body as by the indispensable Law of Allegiance they are bound ought to conceal the frailties of their Prince and not to censure or publish them to his dishonour either by word or writing 2. But notwithstanding this it is too certain that in this Nation in the late unhappy times of confusion and most horrid Rebellion we have had a multitude and rable of seditious people who miscall'd themselves the Goldy party who have been so far from duly honouring their Gracious Soveraign maintaining the known Rights of his Crown and preserving his Sacred person from danger that they have without all ground falsly slandered and in the Press and Pulpit by Lyes and Libels indeavour'd to ruin his honour and reputation Nor stay'd they here but having got power to compleat the Tragedy they did what before they desired seise the Kings Revenue and all the Rights of the Crown into their own bands and at last with a prodigious and more than Pagan impiety horresco referens they murdered their innocent and pious Prince An act so villanous and so far beyond all expression barbarous that since our Blessed Saviours death no Age or Nation ever had or I hope ever will have any Villany equal to it and all circumstances considered of parallel impiety And since his Majesties happy and Miraculous Restauration to his Fathers Throne in peace it is too evident by the impious Plots and Conspiracies happily discovered and their disloyal and Trayterous designs disappointed some still remain who if they had What I hope they never will ability want not a mind to do mischief who have talk'd so long of that liberty and property of the subject that to maintain the just Rights and Prerogative of their Prince which in the first place ought to have been consider'd and preserved is no part of their care and desire but rather the diminution of it and had they ability and opportunity the utter abrogation of it The Premisses consider'd I think that every loyal subject as he is by natural or sworn Allegiance or both at all times so especially in the circumstances we now are is obliged with more care and diligence to maintain and vindicate his Soveraigns just Rights and Prerogatives For where and when there is greater and more eminent danger there ought to be greater care and diligence to prevent it These Considerations and some addresses of some honest Cavaliers who believed that the King had power by his Prerogative Royal to pardon in the Cafe proposed but could more easily believe the truth than answer Objections against it and therefore desired my assistance to help them to answer the principal and indeed the only pretended Objection which seem'd and only seem'd to prove that his Sacred Majesty could not pardon a person legally condemn'd for Murder I say that these reasons induced me more seriously to consider the Case proposed and after diligent consideration of all the particulars being in my own judgment convinc'd and having satisfi'd my doubting friends That his Majesty might lawfully pardon such a condemn'd Malefactor I shall now in short give you an account of those Reasons which satisfy'd me and them and refer them to your better Judgment And here that I may set down what I have to say with more method and perspicuity I shall 1. Suppose two or three things which to me seem evident Truths and will conduce to manifest his Majesties power to pardon and then I shall proceed I suppose then 1. That the Kingdom of England is a Monarchy That is as the word signifies a Government wherein the Supreme power is in one single person This our Statutes say and in our Oath of Supremacy we swear That the King is the ONLY SUPREME Governour of this Realm 1. Supreme and therefore none above him 2. ONLY Supreme and therefore none coordinate with him or equal to him 2. That England is an Hereditary Monarchy We say the King never dies The man who was King may die and cease to be but the King and Royal Power ceases not but immediately descends to and is seated in his next Heir and Successor In the next minute after any King's death the next Heir to the Crown is actually King as well and as much before as after his Coronation As in Matrimony it is not the Solemnization of it in the Church nor the Prayers and Benediction of the Priest that makes Husband and Wife For it is by Law and Reason certain that consensus facit Matrimonium Solemnization of it in the Church is only a publick Declaration of the antecedent consent which made the parties man and wife coram Deo before they came to the Church So is Coronation to a King it does not constitute and make him so but presuppose and declare publickly that this person is indeed our Prince Neither has the Pope or people any thing to do by way of Election or approbation of a Successor to the Crown And so in our Oath of Allegiance we swear fidelity to the King His HEIRS and SUCCESSORS The same Oath of Allegiance we took to Charles the Martyr in the next minute after his death as equally and indispensably bound us to be loyal and faithful to his Son and Heir Charles the Second our now Gracious King 3. The Kingdom of England is not only a Monarchy but an ABSOLUTE Monarchy So my Lord Cook tells us in these signal words Thus it hath appeared as well by the ancient COMMON LAWS as by the Judgment and RESOLUTION of the JUDGES of the Laws of England in All AGES and by the Authority of MANY ACTS of Parliament that the Kingdom of England is an ABSOLUTE Monarchy and that the King is the Supreme Governour c. And Sir John Davis that I may not trouble you with any more Quotations says the very same thing The King of England are ABSOLUTE EMPERORS in their Dominions c. And again The King of England has the same ABSOLUTE Liberties in his Dominions as the Emperor in his Empire The meaning is not that our Kings are so absolute as to be freed from obedience of the Laws of God natural or positive in the Gospel but because there is no power on earth except their own which can lay any obligation or limitation upon them And this is evident because our Kings being supreme having none superior or equal to them it is impossible that any power on earth for it is most certain that no inferior power can do it should be able to oblige or limit them But it may be said If our Kings be absolute so as no power on earth can oblige or limit them then they may by themselves make and abrogate Laws lay Taxes on the people c. This does not follow for although no power on earth is superior to them or can oblige or limit them yet they
the Index of a Manuscript of Collections by Sir Julius Caesar Fol. 277. is referr'd to under his own hand in which Fol. is contain'd as followeth The Book is markt on the outside A. A. 10. UPon the Treaty with Gray Lord Chandois it was thought meet that 16500 l. should be alloted to the Lady for her right to the value of 14500 l. in Land and 2000 l. in Money But in regard the whole Estate moved from the Lady and that Sir John was able to give her no Advancement or Dower out of his Estate it was thought meet that the Lady should have 8000 l. at her sole dispose and the residue to be at their joint dispose After upon motion on the Lady's behalf out of a fear that the Estate might be wasted by Sir John and thereby she deprived of maintenance she then having on knowledge of the Marriage in Scotland or hope of a Divorce or Nullity of the said Marriage it was appointed that the same should be conveyed over to certain Feoffees in trust to her use that she by her Indenture under her Hand and Seal solely and without Sir John might dispose thereof The which conveyance was directed by three living of this Honourable board viz. The Lord Treasurer the Lord Privy Seal and the Lord Stanhope and by the Lord Popham Lord Tanfield Sir Thomas Hesketh Serjeant Dodridge and Mr. Stephens The Land allotted the Lady being sold for 7800 l with 6500 l. thereof Barn-Elmes was purchased but Sir John being trusted by the Lady to go to Mr. Stephens to draw the conveyance went to other Councel and in the clause where it should be freely at the Lady's disposal solely without Sir John he caused to be inserted these Words That the Lady should have power to convey the same to such intents and purposes as by the said Elizabeth solely and without the said Sir John Kennedy by writing under her Hand and Seal enrolled should be limitted and appointed Wherein besides the contradictariness of the Sence he caused in that Deed delivered the Lady the more to blind her Eyes enrolled to be razed and made indented Deed. 31. Decemb. 3. Jac. And after the Rasure was found out then by his Deed Dat. 2. Julij 4. Jac. he the said Sir John did limit power to the Lady by her Deed inrolled or not inrolled to limit uses The Lady hath been a Suiter two years if Sir John for saving his own Credit will not confess matter to make a Divorce then that in course of Justice she may be admitted to her proof which for that it concerneth matter of State as is suggested she is denyed 1. And therefore she hopeth it is but the same equity to stay his proceeding touching her Estate against her or her Feoffees in Course of Justice considering it is not by her lachess that the Marriage is not disproved untill both the said causes having a dependency one upon another may be handled at this Board 2. The course of Conveyance by Feoffees was by Honourable Personages Grave Judges and Learned Lawyers directed when the Lady was supposed the true Wife of Sir John and they held in Law and Equity sufficient and now à fortiore it should be more sufficient she being none of his Wife if she may be admitted to proofs 3. Sir John hath already advanced himself by the Sale of the Lady's Estate over and above the purchace of Tonbridge which cost 8500 l. wherein he hath a a joint Estate of Inheritance and all her Debts that he hath paid 7500 l. 4. If the course propounded at this Honourable Board shall not hold then will the Lady never assent to Sell and so shall the Debts of the Lady before Marriage now resting unpaid being 2207 l. and Sir John's own Debts rest unsatisfied to the oppression and clamour of many poor Men and the King still troubled with renewing his Protections 5. If Sir John should proceed in course of Justice and that the conveyance made to Feoffees should not be held sufficient and strong enough to convey the same to the Lady yet Sir John can have but the profits thereof being but 300 l. per annum and not that clear which is not able to pay half the use of the Money 6. Besides before any Sute began the said Mannor of Barn-Elms was for valuable consideration of Money lent Mortgaged and now resteth forfeited for Non-payment of 2000 l. In the Index of Sir Julius Caesar's Manuscript of Collections Fol. 280. is under his own Hand referr'd to in which Folio is contain'd as followeth The Book is markt on the outside A. A. 10. 'T is in the Index writ with his own Hand in relation to Fol. 280. Whether an English Jurisdiction may disanull a Marriage solemniz'd in Scotland A. B. a Scotchman in a Parish Church in Scotland publickly in the presence of the Congregation solemnizeth Marriage with a Scotchwoman About six or seven years after the said Marriage the Scottish Woman pretending that at the time of her Marriage she was but Ten years Old or at the least under Twelve before certain competent Judges in Scotland procureth a sentence of Divorce to be given against the said A. B. whereby the Marriage between A. B. and her was pronounced to be void and of no force and that she was at liberty to Marry again to any other upon this ground That she was under Twelve years of Age at the time of her Marriage and that she never consented thereto after she was Twelve years Old nor had Carnal knowledge of the said A. B. from which Sentence no appeal or provocation was made Afterwards the said A. B. coming into England did solemnize Marriage with an English Woman the Scottish Wife being then living after which marriage the said A. B. and the English Woman for certain years Co-habited together here in England as Man and Wife the said English Woman being ignorant of the premisses done in Scotland During the time of which her Co-habitation with the said A. B. the Scottish Woman dieth After whose death the English Woman being certified that A. B. had another Wife living when he married her so as he could not be her lawful Husband at the time of her Marriage the said A. B. and she dwelling both in England she refraineth from the company of A. B. and complaineth to the Ecclesiastical Judges in England having Jurisdiction in the place where the said A. B. and she dwelleth and craving Justice offereth to prove that the said A. B. and the said Scottish Woman were lawfull Man and Wife and after the said Marriage had Carnal knowledge of each other and that they Co habited together as Man and Wife five or six years after she was Twelve years of Age admitting she had been under that Age at the time of the Marriage and desireth to be admitted judicially according to the ordinary course of Law to alledge and prove her aforesaid Assertions before the said Judge and upon proof thereof to