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
Church requires that the greatest Caution be used and all means possible to find our the truth by deposition of Witnesses and other lawful Proofs but would have no credit given to the confession or oaths of the Parties The words are these in our Canon We straitly charge that in all Proceedings to Nullities of Matrimony good circumspection and advice be used and that so far as is possible truth be sifted out by deposition of Witnesses and other lawfull Proofs and that credit be not given to the sole confession of the Parties however taken upon Oath either within or without the Court This is the Law of England for I believe a Canon made in Convocation and confirm'd by the King 's Supreme Authority to be a Law in re Ecclesiasticâ as well as an Act of Parliament is in re Civilis And by this Law no Sentence of Nullity of a Matrimonial Contract can legally be pronounc'd till just and legal Proofs be made and by the same Law the Confessions and Oaths of the Parties are no sufficient Proofs so that in our present Case if Patrimoniale and Gallina had both confessed and solemnly Sworn that there was such force and fear as is pretended to be the ground of that Nullity yet by our Law such Confessions and Oaths are no legal Proofs Nor does it appear that there were any other legal and sufficient Proofs of it and therefore Mr. Cottington having no sufficient assurance or just ground to believe either First That there really was any such pretended force and fear or Secondly That such pretended but not prov'd force and fear was a sufficient ground of a Nullity for while no force did by legal Proofs appear it was impossible to know the Nature Degree and Measure of that pretended force and so whether it was such as could cause a Nullity I say Mr. Cottington having no sufficient certainty of these Particulars he cannot with Innocence and a safe Conscience Co-habit with Gallina as with his own Wife seeing she may be and for ought appears to the contarry is another Mans. Lastly But let it be granted tho it appear not by any legal Evidence that Gallina was under some force and fear at the time of her Marriage so that her consent was not so voluntary and free as other wise is requir'd in such Contracts yet 't is evident and confessed that she afterwards lived with her Husband a year and a half had a Child by him and all that while never made any protestation or complaint of any such force or fear or that her consent was involuntary though she had all that time and being in a safe place many opportunities to have done it which spontaneous and voluntary Co-habitation with her Husband was a legal confirmation and ratihabition of her first consent so that it was sufficient to make the conjugal contract valid firm and obligatory This is an evident truth established by the Civil and Canon Laws acknowledged by the best Civilians and Canonists received and practised in their respective Courts That this may appear I say First That a good Canonist tells us not obiter and casually but in his institutions made and allowed by and Authority of the Pope himself That if a Woman do prove that her conjugal consent was through fear at first involuntary yet if afterwards she willingly did Co-habit with her Husband and he had Carnal knowledge of Her the fear is Purg'd though it was at first a just fear and the Matrimonial contract valid and Obligatory The words are these Quae invita probat se sponsalia contraxisse si comperiatur postea sponte cognita ad matrimonii Dissolutionem proclamare metum causare non poterit And the Lemma or Title of that Paragraph is this Justus metus si purgatus fuerit and Antecedentem metum spont anea copula ex post facto purgat Matrimonium non impedit We see that a just fear and that proved makes no Nullity nor Invalidity if afterwards she willingly consent to Carnal Knowledge and give due benevolence to her Husband But Gallina's fear in our Case was pretended only not prov'd she Co-habited with him willingly eighteen Months and had a Child by him and ergo much less could such pretended fear prove a Nullity Secondly And the Law it self expressly determines the Case wherein the Lemma prefixed to the Chapter is this Invita desponsata postea sponte Cognita contra Matrimonium non auditur and then the Pope determines the Case whether it was Clemens or Celestine I inquire not ipsi viderint thus Adversus Mattrimonium audiri non debet quae ante Cognitionem sui cum potuit minime reclamavit postquam enim copulae carnali semel consentit ex Ratihibitione sibi super hos silontium non ambigitur indixise Gallina in our Case lived eighteen Months willingly with her Husband had a Child by him willingly I suppose cum potuit minime reclamavit and ergo à fortiori such her Spontaneous Co-habitation and Carnal Copulation was a real and legal Ratihabition and confirmation of her consent and conjugal contract although it had been which appears not at first through force or fear involuntary And that such a subsequent spontaneous consent is sufficient to ratifie an antecedent Contract suppos'd or really being involuntary is justified by the Civil Law and best Civilians Nor does the Law require that such subsequent consent be given in express words but a tacit consent by doing some act which signifies and gives a moral certainty of the internal willingness of the party is sufficient Consensu etiam tacito saies a most learned Lawyer and proves it by express Law Ratihabitio actus as he goes on antecedentem actum metu gestum non fuisse demonstrat Consensûs geminatio tollit metûs Presumptionem So Grotius Joach à Beust Panormitan and others cited by them and generally all I have yet seen Thirdly Once more The truth of what I have said does further and if that be possible more evidently appear to be res judicata proa veritate habenda For it is a Case in Terminis and expressly determin'd by Pope Clement the Third who was a better Casuist and Judge if not infallible yet sure I am of far greater Authority than the Archbishop of Turin For Pope Agatho if Gratian cite him right has told us That all the Popes Decretals are to be received as if the Divine Authority of St. Peter had confirm'd them The Determination of Pope Clement which I mean was by Gregory the Ninth Registred and referred into the body of the Canon Law where the Title or Summary prefix'd to the Chapter is this Matrimonium per vim contractum Co-habitatione spontaneâ convale scit hoc dicit quotidie allegatur where we have first the Law in this Position A subsequent spontaneous Co-habitation confirms a conjugal contract made by force or fear Secondly
declared both by our Church and State For 1. Our Church has declared her Judgment that all Images are not absolutely unlawful or simply forbidden in the New Testament but only some in some Places and Circumstances when they may especially to poor ignorant People be dangerous Occasions of Superstition and Idolatry and more expresly a little after the Words are these We are not so scrupulous as to abhor Flowers wrought in Carpets Hangings Arras c. or Images of Princes on their Coin nor do we condemn the Art of Painting or Image-making c. Whence it is evident that our Church is neither against the Art of Painting nor any Civil Use of Images 2. Our State has by express Act of Parliament declared even in the time of our Reformation That they did not condemn any Civil Use of Images For even in that Statute in which they severely condemn and command the defacing Images in Churches they have this Proviso Provided always That this Act shall not extend to any Images or Pictures set or engraven on any Tomb in any Church Chappel or Church-Yard only for a Monument of any King Prince Noble Man or any other dead Person which hath not commonly been reputed for a Saint but that all such Images may continue Whence it is evident that our Church at the Reformation did not condemn any Civil Use of Images no not in sacred Places as Church-Yards Chappels or Churches much less in other Places And that we may more distinctly know what Images they condemn'd and why they would not tolerate them in Churches It is further to be considered 1. That the Church of England absolutely condemns all Images of the Trinity or any Person in it Father Son or Holy Ghost as absolutely unlawful and expresly condemned in Scripture Such Images are not to be tolerated neither in nor out of Churches 2. No Images of our Blessed Saviour of any Saints and Martyrs which with stupid Superstition and Idolatry have been and still are worshipped in the Popish Church are in the Judgment of our Church to be tolerated in our Temples or any Place of God's publick Worship For if they be it will be to the great and unavoidable danger of Idolatry This I conceive is the approved and received Doctrine of the Church of England and that it may more plainly and distinctly appear to be so I shall cite the Judgment of our Church and her Reasons for it in her own express Words and amongst other things too many to be transcrib'd she plainly tells us 1. That it is an ungodly thing to set up Images or Idols which in her Judgment signify the same thing in our Churches because it may give a great occasion of worshipping them 2. That Images in Churches painted on Clothes or Walls are unlawful and contrary to Christian Religion 3. That setting up Images in Churches is to the great and unavoidable danger of Idolatry and that the Law of God is against it 4. That the setting up the Image of God of our Blessed Saviour or any Saints is not tolerable in Churches but against God's Law 5. Wo be to the setters up and maintainers of Images in Churches 6. It is not possible if Images be in Churches to avoid Idolatry 7. Images of God our Blessed Saviour and the holiest Saints are of all others the most dangerous to be in Churches 8. Images in Churches are a Snare and tempting of God to the great danger and destruction of many 9. That Images in Churches in the Judgment of the Prophet and Apostle are only Teachers of Lies 10. God's horrible Wrath cannot be avoided without utter abolishing Images in Churches This is evidently the express Doctrine of our Homilies which absolutely condemns not only the worshipping but having Images in our Churches And it is no less evident that the Homilies and the Doctrine contained in them are both approved received and established by the Supreme Authority of our Church and State Canons of Convocation and Acts of Parliament This will appear 1. By the Testimony of King James who commends the diligent reading of our Articles and Homilies set forth by the Authority of the Church of England 2. By the Convocation of Q. Elizabeth the Supreme Ecclesiastical Power which expresly and particularly names and approves all our Homilies and declares the Doctrine contained in them to be a godly Doctrine as appears by the Articles of our Church composed and published in that Convocation 3. By the Convocation I Jacobi For as the Article last named declares our Homilies to contain a godly Doctrine so the Convocation of King James declares all things contained in that Article to be agreeable to the Word of God 4. All the Clergy of England all Graduates in the Universities all Chancellors Commissaries and Officials before they exercise any Ecclesiastical Jurisdiction are willingly and ex animo to assent consent approve and subscribe these Articles and this Doctrine and that absolutely without any Glosses or Senses of their own 5. And these Subscriptions are required and so the Doctrine subscribed to confirm'd by several Acts of Parliament 6. And if any impugn this Doctrine so declar'd and establish'd by the Supreme Power or maintain any Doctrine contrary or repugnant to it he is by our Canons to be excommunicated ipso facto and by the Statute if he be a beneficed Clergyman deprived The Premisses being certain and evident Truths the natural and necessary Consequences which follow from them to omit others will be these 1. That neither the Deputy-Chancellor of Lincoln nor any inferiour Court has or can have any just Authority or Power to approve and authorize the setting up of such Images in the Church which by the Supreme Power Ecclesiastical and Civil in Convocation and Parliament is expresly condemn'd as altogether unlawful and to the poor ignorant People pernicious 2. That they who maintain and encourage this Doctrine of setting up Images in our Churches if they persist in it are by our known Laws now in Force to be excommunicated ipso facto and if they be beneficed Clergy-men to be deprived Viderint quorum interest 3. And if any Ecclesiastical Judg or Court quod absit should approve authorize or encourage the setting up of such Images in our Churches it evidently follows from the Premisses that in so doing they approve and authorize that which the Church of England has publickly declared to be dangerous against the Law of God against Christian Religion and to many pernicious And therefore we have reason to believe that no good Son of the Church of England will approve authorize or encourage that which his Holy Mother has so absolutely and publickly condemned A Friend of the late Bishop of Lincoln's observing how customary it is to Protestant Writers to charge on the Papists the Tenet of Dominium fundatur in
may limit themselves by Oath or promise and so our Kings have limited their power and promised and in their Coronation-Oath sworn to do none of those things without the consent of their people in Parliament But does not this limiting themselves take away and destroy their Absoluteness No if any other power could lay Obligations and Limitations upon them then I grant they were not absolute but to limit themselves is consistent with absolute power For the truth of this we have an evident and authentick instance It is most certain that God Almighty is an absolute King of all the world yet for the comfort of his people he has limited himself by Oath and promise so the Apostle tells us That by two immutable things in which it is impossible for God to lye we might have strong consolation These things premised concerning the great power of our Kings That it is Monarchical Supreme and Absolute the Query is Whether they can and lawfully may either 1. Reprive 2. Or pardon a person condemn'd for Murder Now it is a certain Rule in Law and Reason that Omne illicitum est ex lege aliqua illicitum Sin is the transgression of a Law and where there is no law there is no transgression If then such Reprive or Pardon be unlawful and may not be granted by the Kings of England then it must be so by some law which prohibits it and that must be either 1. Some Humane or 2. Some Divine Law For the first unless it do appear that the Kings of England are prohibited to reprive or pardon such malefactors by some law of our Nation to the making where of they have given their consent and so limited their own power I say unless there be such a law it will be evident that it cannot be unlawful by any humane law for our Kings to reprive or pardon such malefactors But although I have reason to believe that there is no such law Yet whether there be any such Law or no I shall not determine but leave it to the Reverend Judges and the learned in our laws who are best able to determine that Question It belongs not to my calling or present business to determine the Case by humane laws That which was desired of me was this Whether the Reprive or Pardon of a person legally condemn'd for Murder were prohibited and so unlawful by the law of God particularly by that Law given to the Jews by Moses in these words Thou shalt take NO SATISFACTION for the life of a murderer who is guilty of death he shall SURELY BE PUT TO DEATH NOW to determine this case of Conscience by the Divine Law is within the compass of my Calling and by this time at the Age of 77. I am or ought to be in some measure a competent Judge of such Cases And therefore seeing nothing is required of me save what is in my power to give my Opinion in the Case I shall here 1. Humbly and with submission to my Superiors give my opinion and judgment in the Case 2. The Reasons for it 1. For the first my present opinion and judgment is That there is no Divine Law which prohibits and so makes it unlawful for Supreme Princes to Reprive or Pardon a person legally condemned for murder And this I shall endeavour distinctly to shew and prove 1. That a Reprive 2. That a Pardon is not by any Law of God unlawful 1. For the first To Reprive is not to null or make void the Sentence pass'd upon a murderer or to free him from it but only for some time the delaying the execution of it Now 't is certain that there is no Law of God which prohibits such Reprive and delay of executing the sentence or any way make it unlawful for the Supreme power to grant such Reprive The severest Law against Murderers is that in the Book of Numbers but now nam'd which says That no satisfaction shall be taken for the life of a Murderer but he shall surely be put to death But that Law does not say that he must die the same day the sentence pass'd or the same week or month If a Murderer be executed a month after the sentence passed he dies As SURELY as if he had died the same day 2. There may be just reasons drawn from the Law of Nature and Scripture why in many Cases the supreme Magistrate not only lawfully may but ought to grant such a Reprive The Law of God and Nature does indispensably bind all to love their neighbour as their selves and therefore so far as we have ability to endeavour his Salvation Now a condemn'd murderer who has no pardon is sure to lose a temporal life and that he may not lose eternal life too it is the observation and judgment of the best Scholar and Lawyer in his time it will and should be the care of pious Princes not to hurry such condemn'd malefactors hastily to death but to grant them some time by a Reprive before they leave this to consult their Ghostly Father and by prayer confessing their sins true penitence and the comfort of Absolution prepare themselves for a better life 3. But although this be a certain truth That the Supreme power may reprive a condemn'd Murderer yet it will further appear and beyond all contradiction in the proof of the next particular Where it will appear That the King by his Supreme power and Royal Prerogative may lawfully pardon such a condemn'd malefactor and therefore much more may he lawfully Reprive him For he who can lawfully pardon and remit the punishment of Death that it shall never be inflicted may certainly for some small time for a week a month or two suspend and delay the execution of it And so I proceed to the second particular 2. It is not unlawful by any Divine Law for the Supreme Power to pardon a person convict and condemned for Murder The reason is evident because there is no Divine Law which prohibits the Supreme power to grant such a Pardon That this may more distinctly appear it is certain and confess'd that Divine Laws are either 1. Evangelical made known to us in the Gospel 2. Mosaical such as God by Moses made known to his own people the Jews 1. For the first The Evangelical Laws were given by our Blessed Saviour in the Gospel for the gathering and perpetual Government of his Church Now it is certain that amongst these Laws there is nothing of any temporal punishment Our Blessed Saviour tells Pilate That his Kingdom was not of this world it was no Temporal Kingdom It was not to be promoted by the sword or temporal punishments He left his Apostles no power to punish the transgressors of his Laws either 1. In their Purse by Pecuniary Mulcts or Fines Nor 2. in their Persons by Death or Imprisonments All such Power does and ever did belong to the Civil Magistrate who only has
Immutable and Indispensable and therefore Marriage in the Law is defin'd to be Maris Faeminae Conjunctio Divini humani Juris communicatio omnis vitae consortium 3. And hence it follows evidently That if the conjugall contract between Patrimoniale and Gallina was Matrimonium legittimum ratum a legall and valid marriage ab Origine and when it was made then it continues so both parties being yet living and was and still is valid and obligatory If it was a just and valid contract in 1664. it must continue and be so now in this year 1677. 4. And further if this be true and granted that Gallina's Marriage with Patrimoniale in 1664. was and to this day continues valid then her Marriage with Mr. Cottington Anno. 1671. is absolutely Null and to all intents and purposes void for first Impossibilium nulla est obligatio or contractus contra naturam bonos more 's initus est omnino nullus If Gallina's pre-contract and marriage to her former Husband was legal and valid when her subsequent Marriage with Mr. Cottington was an evident violation of the Law of Nature which indispensably oblig'd her to be Faithfull to her former Husband and of her Faith before Solemnly given to another and so absolutely Null and in it self Void Secondly It is consonant to Law and right Reason and a received rule in all contracts as well as Matrimonial Quod nemo potest alterâ parte invitâ a contractu semel perfecto recedere And therefore if Gallina's conjugal contract with Patrimoniale was perfect and legally valid she could not without manifest Injustice recede from it leave him and adhere to another Husband In Matrimony as generally in other contracts our consent in making them is and should be free and voluntary but when they are made their Obligation and our Observance of them is necessary So that if this be so if the Matrimonial contract between Patrimoniale and Gallina be legall and really valid then no power on Earth or de Jure can oblige Mr. Cottington to Co-habit with Gallina as with his Lawfull Wife seeing on the foregoing Hypothesis she is indeed Wife to another Man And if any though the Supreme Authority should command Mr. Cottington so to Co-habit with Gallina this were to require him to live in impious and abominable Adultery with another Man's Wife which as no Humane Power can justly command so neither Mr. Cottington nor any other can obey without wounding his Conscience and hazard of his Soul and Salvation T is active Obedience I mean for if such commands should come though we cannot do what 's requir'd yet we may and ought quietly to undergoe the punishment agere pati fortia Christianum est no Courage like that of a good Christian who will suffer any thing patiently from his Governour rather than sin against his God 2. The next Query will be concerning the Invalidity and Nullity of Gallina ' s Marriage with Patrimoniale For if it be indeed Null as it seems some do and would persuade others to believe then the Case is alter'd Mr. Cottington may and ought to Co-habit with Gallina as his lawfull Wife For if her first Marriage were indeed a Nullity then her second with Mr. Cottington will be lawfull and valid and he obliged to Co-habit with her as her undoubted Husband Now in the Case propos'd I find but two Mediums brought to induce a belief that Gallina's Marriage with Patrimoniale was a Nullity 1. The Authority and Judicial Sentence of the Archbishop of Turine declaring it to be a Nullity 2. The reason alledged on which it seems that sentence was grounded drawn from the Force and Fear which made Gallina's consent involuntary Now I conceive with submission to better Judgments that these Mediums are too weak and insufficient to give satisfaction to Mr. Cottington or to quiet his Conscience so as that he may without danger or doubting Co-habit with Gallina For if he should Co-habit with her and only doubt of the Lawfullness of it he certainly sins It is a received and certain rule amongst Casuists That quicquid fit reluctante vel dubitante conscientiâ est peccatum If may Conscience tell me 't is not or doubt whether the thing I do be good and Lawfull what ever it be I sin if I do it And that 's the meaning of that saying of the Apostle many times mistaken whatsoever is not of Faith is Sin That is whoever does any thing without a Moral Certainty that what he does is just and lawfull he sins in doing it Now concerning the former of those two Mediums the Archbishop's judicial Sentence in this Case it is to be consider'd That admit that Archbishop and the Pope too his Superiour and beyound Sea their supreme Judge had both concurr'd in giving the same Sentence and declared the Marriage of Patrimoniale and Gallina a Nullity yet seeing by the known and just Laws of England they have no Authority or Jurisdiction over any here 't is certain they can lay no Obligation on any English Men to approve or submit to such Sentence 2. Nor can such Sentence if the Pope and Archbishop had given it be any reason or just ground to warrant any Judge or Court in England to give the same Sentence in the same or the like Case or be any just bar or reason to hinder them to give the contrary Sentence All know that a Facto ad jus non sequitur Argumentum the Pope this or that Court or Council judg'd so ergo we must or may do so is evidently inconsequent In the Case of Hen. 8. and Queen Katharine the Pope in and with his Consistory judg'd that he had Power to give and actually gave a Dispensation to Marry Relictam Fratris his Brothers Wife and yet afterwards our own at home and abroad the greatest Universities in Christendom judg'd the quite contrary in their Convocations call'd for that purpose Nay our own Supreme Court the Parliament in Hen. 8. time Judg'd that Marriage to be against the Laws of God and in Queen Mary's time the Parliament by Publick Act declared that it was according to the laws of God The Sentences of that Supreme Court are contradictory and ergo one of them be which it may be is evidently Untrue and Erroneous and therefore can neither be a just Warrant for any in England to approve it or judg according to it or a just Bar or Let to hinder us to judge the Contrary Now if notwithstanding the respect and reverence we owe to that Supreme Court we may in this and many the like Cases disapprove its definitive Sentence and be of a contrary Judgment Then much more may we disapprove and be of a Judgment contrary to the definitive Sentence of the Archbishop of Turin who is in nothing our Superiour nor hath any Authority or Jurisdiction in England especially in a matter of Fact wherein neither
Maintenance 2. Or only to declare a Nullity of the Matrimonial Contract between Patrimoniale and Gallina For the first If the Archbishop's Sentence was such as required Co-habitation that Mr. Cottington should give due Benevolence and Maintenance to Gallina Then his Sentence was absolutely Null Quia à non judice lata that Archbishop having no Jurisdiction over Mr. Cottington and an usurpation of the just Rights of our King the Supreme and of our Bishops who from and under him have a sub-ordinate Jurisdiction over the Subjects of England and so over Mr. Cottington Sure I am the Archbishop of Turin had no Jurisdiction over Mr. Cottington a subject of the King of England First Not Supreme that 's only in our King as our Laws and Oaths testifie Secondly Not Subordinate for that must be derived from the King who surely never gave the Archbishop of Turin any Jurisdiction over Mr. Cottington or any of his Subjects And therefore if the Archbishop of Turin's Sentence was such our King and Bishops might justly question and censure it for what it was a Nullity and an illegal usurpation of the Rights of the Church of England For the second If the Archbishop of Turin's Sentence was only that the Matrimonial Contract between Patrimoniale and Gallina was a Nullity then I consider First That it is confess'd that Res judicata pro veritate accipitur and the Sentence may be put in Execution Si sententia judicis appellatione nullâ suspensa sit nec ex alia causa potest restaurari But this must be understood in respect of the Parties litigant Facit jus irretractabile inter partes saies the Law and Lawyers And they add Sententia à qua non est appellatum facit jus inter partes etiamsi ab initio fuit injusta Secondly But yet this Rule has several limitations and fallentiae as they call them for Si sententia judicis sit ipso jure nulla contra jus lata tum sine appellatione infringitur non transit in rem judicatam And a good Lawyer with relation to the Laws cited in the Margint tells me His legibus dicitur quod sententia lata contra leges statuta vel constitutiones principum est ipso jure nulla ideo citra appellationem causa de novo in judicium deduci potest And Panormitan sententia pro Matrimonio non transit in rem judicatam cum extat impedimentum lege divinâ vel humanâ super eo non est dispensatum So that it is not every Sentence of a Judge though not suspended by an appeal which passes in rem judicatam no not in the same State or Kingdom and therefore the Archbishop of Turin's Sentence declaring the Matrimonial Contract between Patrimoniale and Gallina to be a Nullity if it be against any Law of God or Man as undeniably it is against both if the grounds on which it was given be such as they have been represented to me is it self Null and to all intents and purposes invalid Thirdly But let the Archbishop's Sentence as to the Nullity be what it will true or false just or unjust yet if it concerns a Subject of England our King and Bishops have good reason and a just power to question and examine it and according to its Validity or Nullity admit or reject it Fourthly And that it does highly concern a Subject of England is evident For although ab Origine it concern'd only Patrimoniale and Gallina two of his own Subjects yet Mr. Cottington having before or since the Sentence I know not married Gallina He is highly concerned to be sure that the Archbishop's Sentence is just and true For if it be not if indeed there be no Nullity in that Contract then what Casuist or Court soever determines and decrees that he shall Co-habit with Gallina as his Wife does ipso facto decree 1. That he shall Co-habit with another Man's Wife 2. That he shall live in continual Adultery 3. That if he have any Children by her they are none of his for is pater est quem nuptioe demonstrant 4. And so in case she out live him he shall not be in a possibility to leave any lawfull Issue to continue his Name and Family to Posterity Fifthly If then the Archbishop's Sentence be untrue if the contract between Patrimoniale and Gallina was Matrimonium ratum and no Nullity then all those sad or sinful consequences will necessarily follow and so not only Mr. Cottington by Co-habiting with another Man's Wife but his Judges too who command such Co-habitation will be guilty of those horrid Impieties For if it be true as undoubtedly it is that the Magistrate who prohibits not Impieties when 't is in his power is himself guilty of them Then much more will he be guilty who expresly commands them And that Magistrate whoever he be who by a judicial Sentence commands Mr. Cottington to Co-habit with another Man's Wife for so she is in case there be no Nullity commands him to commit and continue in Adultery Sixthly It will therefore both in Prudence and Conscience highly concern our Bishops and Ecclesiastical Judges to whom the cognizance of this cause belongs that they be morally sure that the Contract between Patrimoniale and Gallina was indeed a Nullity before they decree and require Mr. Cottington to Co-habit with her It is evidently repugnant to the nature of Justice and the integrity of a just Judge to give a certain damnatory Sentence upon an uncertain and dubious Ground Now 't is absolutely impossible that any Man should be sure of such a Nullity as is declared in the Archbishop's Sentence unless he know the reasons on which that Sentence is grounded and that they are such as efficaciously prove the Nullity And if Mr. Cottington doubt of the Nullity as of necessity he must till by some rational medium it appear and be not sure Gallina is indeed his Wife I am sure he sins if he Co-habit with her seeing he Co-habits with one who for ought he knows is another Man's Wife And then the Rule is certain Quicquid fit reluctante vel dubitante conscientiâ est peccatum Seventhly If it be said That the Archbishop of Turin has by a judicial Sentence declared that Contract to be a Nullity It is confessed but that is no just ground for Mr. Cottington nor any body else to be assured it is so unless the Reasons on which his Sentence is grounded appear to be cogent and sufficient to prove such Nullity That Archbishop and his Assessors neither are nor pretend to be Infallible and the Sentence of a fallible Authority so long as the Reasons of it are unknown is not sufficient to satisfie and quiet a doubting Conscience Our Holy Mother the Church of England has truly told us and all her Sons subscribe it that General Councils may and have actually erred much more may a particular Popish
that Archbishop nor the Pope himself though the Jesuites and some Canonists be of the contrary opinion pretend to be infallible And once more as the definitive Sentence of any Popish Archbishop or of the Pope himself in his Consistory or in a general Counsel can be no good President or just ground to warrant any Protestant Judge or Court to judge accordingly or any legall Barr or Let to hinder them to give a contrary Sentence so sure I am that no such Sentence given by such Persons and Judges in any of their Courts Consistories or Counsells can be a sufficient ground for Mr. Cottington to relie upon to give stisfaction and quiet to his Conscience so as to secure him that he may safely and without sin Co-habit with Gallina as with his Lawfull Wife only because they have pronounced her Marriage with Patrimoniale to be a Nullity For besides that he has many Reasons if they may be heard as in Law and Conscience they ought Reg. Nullus 20. de Reg. Juris in 6. to suspect and deny that Sentence and to believe it illegall and injust The thing is evident because definitive Sentences given not only in Inferiour but in Superiour Courts and General Councils are so far from giving satisfaction to Protestants or Papists or quieting their Consciences in a belief of what is in such Sentences judicially defin'd that in many things they actually dissent and confidently deny such Definitions so it was the Definitive Sentence of a Popish Convocation and Parliament in the time of Hen. 8. that the King was Supreme over all Persons and in all Causes Ecclesiastical and Temporal and that the Pope had no power in England yet the Sentence of those two great Courts each Supreme in its kind give little satisfaction to our Papists now who absolutely deny such Supremacy So the Convocation and Parliament in the beginning of Queen Mary's Reign by their definitive Sentence Establish Popery here in England which gave as little satisfaction to Protestants who did both believe and know that the Religion Established was Erroneous and therefore the Establishment by the Law of God and the Gospel unwarrantable and unjust In short the adequate and only rule of Conscience which can satisfie and quiet it and on which it may securely relie for sure Directions is the will of God made known to us lumine naturae aut scripturae by natural Reason or Divine Revelation in Scripture For what ever can be made appear to us by clear and convincing Reason grounded on Nature or Scripture de faciendâ aut fugiendâ this may and will satisfie and secure our Conscience so that we may innocently act accordingly but otherwise no Sentence of any Man or Court Ecclesiastical or Temporal can do it unless the Reasons of such Sentence be and appear to be sufficient And this brings me to the second Medium express'd in the Case to shew the Marriage of Patrimoniale and Gallina to be a Nullity The reason alledged in the Case as the ground of the Archbishop of Turin's Sentence and of the Nullity of the said Marriage is this That Gallina was under a Force and Fear caus'd by her Father by reason whereof her consent was not voluntary as by Law it ought to be and therefore the Matrimonial contract for want of such a voluntary and free consent invalid and a Nullity But thisreason is too weak and altogether insufficient To be a just ground either first of the aforesaid Sentence of Nullity or secondly to secure and quiet the Conscience of Mr. Cottington it he obey'd that Sentence and should Co-habit with Gallina as may appear if we consider 1. That 't is the avow'd Judgment of a Person Eminent for his great knowledge of all Learning especially of the Laws that no Fear how great soever humane Constitutions secluded does make the actions which proceed from it Involuntary so as to hinder their Obligation and Validity For he who promises any thing for fear which otherwise he would not have done is yet oblig'd to make good his promise 2. His reason is because he or she who consents and promises any thing for fear does indeed and actually consent and promise and that absolutely and not upon any condition This he further proves by the Authority and an instance of Aristotle who saies That he who in a Storm at Sea casts his Goods over Board would be willing to save them on this Condition if he might escape Shipwrack but in those Circumstances and Danger he is then in he is absolutely willing to loose them and cast them into the Sea Nor is it Aristotle only and Grotius who say this but all the Scholiasts and Commentators on Aristotle both Greek and Latine which I have yet seen say the same thing And then if the Authority and Judgment of so many and so learned Men be valuable as no doubt it is fear as is pretended does not make those Actions whose Principle it is involuntary and the truth of this is further and beyond dispute evident 3. Because Fear is the Principle which makes such Actions voluntary and the Person under such fear willing to produce them For t is evident that there is nothing which makes a Man in a Storm willing to cast his Goods into the Sea but the fear to loose his Ship and his Life if he do not so Nay secondly so far is fear from making our actions Involuntary that the greater the fear is they are by it made more voluntary for no Man before he was in fear was ever willing to cast his Goods into the Sea but after the Storm and his Danger and so his fear begun his willingness to loose his Goods and save himself begun too and as the Danger and his Fear increased so proportionably his willingness to cast away his Goods and when his Danger and Fear are come to the height then and not till then he is absolutely willing to cast them into the Sea and makes hast to put that will in Execution being as really desirous and willing to loose his Goods as by so doing to save his Ship and himself so that if fear made our actions Involuntary then the more the fear was they would be more Involuntary whereas the contrary is evident that as our fear increaseth so our willingness to do those actions which procede from it 4. The fear and force Gallina pretends to make her contract with Patrimoniale a Nullity was from her own Father It is pretended her Father forc'd her to consent whence it appears that she had her Father's consent and command to marry him and may be many and severe Threatnings too if she did not Marry him Whether this was so or not I know not but if it was so yet this neither did nor by any Law of God or Man could make her Matrimonial contract a Nullity First That any Law of God Natural or Positive should make the consent command or threatnings
The received and common practice of it It was no antiquated Law or abolish'd by any contrary Law or Desuetude No saies the Summary Quotidie allegatur it was in continual and daily use Thus the Title The Popes Decision of the Case follows in the Chapter so Parallel with our present Case as nothing can be more Nec ovum ovo similius The Case then was thus A Woman was marryed unwillingly and her consent involuntary yet afterwards she lived with her Husband a year and a half which Co-habitation was by the Pope judged a confirmation and ra-tihabition of the conjugal Contract which was at first Involuntary The words are these Faemina quaedam cuidam Teutonico Matrimonialiter copulatur quae quamvis ab initio invita fuisset ei tradita renitens tamen quia postmodum per annum dimidium sibi Cohabitans consensisse videtur ad ipsum est cogenda redire Nec de caetero recipiendi sunt Testes si quos dicta mulier ad probandum quod non consenserit nominaverit producendos cum mora tanti temporis hujusmodi probationem excludit from which Sentence and Law it is evident First That though the Womans Act was at first involuntary yet her Co-habitation with her Husband for a year and a half ratifi'd and confirm'd the Matrimonial Contract and therefore in our Case had Gallina's consent been at first involuntatary which is not proved yet her Co-habitation with her Husband for a year and a half especially having a Child in that time by him did by the same Law ratifie the former though involuntary contract Secondly That by this Sentence and Law of the Pope the Woman having liv'd with her Husband a year and a half that Co-habitation had so confirm'd and ratified the conjugal contract ex post facto that although ab initio it were involuntary yet that could not cause any Nullity or Invalidity in the Marriage or Contract which made it And therefore the Pope and the Law say Qu'd Testes de caetero non sunt recipiendi quia mora tanti temporis hujusmodi probationem excludit It was in the Pope's Judgment against Reason and Law after a spontaneous Co-habitation for a year and a half to admit of Witnesses to prove that her consent was at first involuntary in order to a Nullity of the Matrimonial Contract seeing that being granted it did not follow that there was any Nullity or Invalidity in the said Contract and therefore the Pope truly judg'd that it was impertinent to bring Witnesses to prove that which in that Case was indeed granted and otherwise if it had been proved could no way profit them The subsequent spontaneous Cohabitation having abundantly ratified the Contract and supplied the defects of the first involuntary consent And hence it farther follows and if I mistake not evidently First That the Sentence of the Archbishop of Turin in Gallina's Case was repugnant and directly contradictory to Law First Because he admitted and examined no Witnesses which in such case the Law expresly forbids Secondly In that he by his definitive Sentence judg'd and declared that to be a Nullity which the establish'd and though may be not to him the known Laws and the Pope too had declared and judg'd to be none Secondly That therefore that Sentence of the Archbishop being against Law and the definitive Sentence of the Supreme Judge was absolutely and in it self Null to all intents and purposes Thirdly And then such sentence being by the Laws Civil and Sacred absolutely Null it follows that the Matrimonial contract between Patrimoniale and Gallina was firm valid and obligatory The premises considered I think there is some Reason to believe that no Court or consistory on Earth can justly oblige Mr. Cottington to Co-habit with Gallina the conjugal Contract with her former Husband remaining firm and valid Yet if any should quod absit I am sure he cannot possibly with Innocence and a good Conscience use her as a Wife For seeing the Law and right reason tell us that illud solium possumus quod jure possumus it can be no more possible for him to Co-habit with her with a good Conscience than to lie with another Man's Wife as Gallina certainly is and commit Adultery Ita est T. Lincolne Query Whether the Bishops of England have Power to question a Sentence of the Archbishop of Turin My Honoured Friend I Understand by your Letter that some say who they are I neither know nor inquire that the King and Bishops of England have no Power to Question the Archbishop of Turin's Sentence given in the Case of Patrimoniale and Gallina I confess I do not a little wonder at the strangeness of their Position the rather because having consulted very learned Divines and Lawyers I can find no ground for it But on the other side many to me evident reasons to the contrary which I submit to your Censure si quid novisti rectius candidus imperti and I will be your thankful Proselyte Here then I consider that a Sentence of the Archbishop of Turin may be either 1. Such as concerns his own Subjects onely over whom he has a just Authority and Jurisdiction 2. Or such as may concern one or more of the King of England's Subjects For the first I conceive it is certain First That the Archbishop of Turin being as to all his Subjects a legal Superior obedience is due to him It being Law with them of Rome and I shall not deny it that in things lawfull or dubious the subject must stand to the Sentence of his Superiours they have no power to question or rescind his Sentence Secondly And 't is granted that the King and Bishops of England neither have nor pretend to have any power to question any Sentence of that Archbishop which only concerns his own Subjects so as to rescind make it Null or not Obligatory For that cannot be done save by a power Superior to that of the Archbishop such as neither the King nor the Bishops of England pretend to Thirdly But I think it as certain that the King and Bishops of England may question any Sentence of the Archbishop of Turin or the Pope himself so far as to consider and examine the Truth or Justice of it when there is a just occasion and our King or his Subjects concern'd and approve or condemn admit or reject it when and so far as all circumstances considered they find it just and true or otherwise as shall God willing anon appear But of such Sentences I suppose the present Query is not Secondly But the question principally is concerning such Sentence wherein a Subject of England is concern'd as in Mr. Cottington's Case who owes Loyalty and Subjection to his King and may expect protection from him Now in this case the Archbishop's Sentence might either be 1. For Co-habitation requiring Mr. Cottington to Co-habit with Gallina to give her due Benevolence and
Rome too is of Ecclesiastical Cognizance Now there is both in Law and the nature and the consequences of them a great difference between Ecclesiastical and Civil Causes Many instances might be given but being not my business I shall only set down two or three thus First Had it been an action of Debt and the Sentence at Turin had been that Mr. Cottington should pay 500 l. to Gallina Admit also that no such Debt was due and so the Sentence unjust and admit that at Gallina's instance that Sentence had been confirmed and executed here in England and Mr. Cottington compelled to pay that Summ. It might be a peice of injustice and a sin in the Judge to sentence him to pay what was no way due But as to Mr. Cottington it might be his Calamity being compell'd to pay what he did not owe but his crime it could not be It could be no sin in him compell'd by his Judge to pay that Money though indeed it was not due For he might lawfully have given Gallina so much Money without and before any compulsory decree and that decree could not make it to him unlawful But in our present Matrimonial Case it is far otherwise For if there was no Nullity in the Contract and the Sentence at Turin unjust and if upon that Sentence it be decreed here that Mr. Cottington shall Co-habit with Gallina here obedience to that unjust Sentence will not only be his Calamity but his Crime because in this Case he Co-habits with another Man's Wife and is guilty of Adultery Nor will the Judge's Sentence requiring such Co-habitation any way excuse him And on this consideration it highly concerns the Judges in this case to be assured of the Nullity least they sentence Mr. Cottington to Co-habit with another Man's Wife and so to sin and commit Adultery But if they do quod absit it as highly concerns Mr. Cottington to obey God rather than Men and though he suffer for it here rather disobey an unjust Sentence of an earthly Judge than the eternally just Judge of Heaven and Earth and suffer for it for ever hereafter Secondly The Church of Rome has Ecclesiastical Laws particularly about the Validity and Nullity of Matrimonial Contracts which neither are nor ought to be approved by the Church of England For 1. They admit the Oaths and Confessions of the parties desiring Sentence for divorce or Nullity and so it was in our present case which the Church of England admits not 2. It is their generally received opinion that although the Matrimonium be indeed ratum yet a Papal Dispensation may dissolve the vinculum conjugale and so induce a Nullity Dico saies a great Popish Casuist Matrimonium ratum posse dissolvi per Papae dispensationem And for Proof of it he cites five Popes did dispense with such Marriages and then adds Quod Gregorius Papa 13 Unica die cum undecim Matrimonijs ratis dispensavit And further tells us out of Sanchez of no less than fourty nine Divines Canonists Summists c. cited for the same opinion and he might have cited as many more and then he himself from their own received Principles fully proves it Now it highly concerns Mr. Cottington and his Judges too to know on what grounds the Archbishop of Turin gave Sentence for a Nullity For if it was only on the aforesaid Reasons and Popish Principles no Bishop or knowing Casuist of the Church of England will or can admit that Sentence to be just or grant a Nullity on such Grounds or sentence Mr. Cottington to Co-habit with Gallina her former Husband yet living and no just ground of any Nullity in their Matrimonial Contract appearing Thirdly The Laws of England concerning all Ecclesiastical particularly Matrimonial Causes are express forbidding all persons whoever they be inhabiting or resiant in this Kingdom to make use of or excuse the Judgments or Sentences of any Foreign Person Court or Judicature and requires upon pain of a Praemunire that all such Causes be tryed and finally determin'd within this Realm by our own Laws and Judges The words are thus If any Peron Inhabitant or Resiant in this Realm or any other of what condition soever at any time hereafter for any of the Causes aforesaid Matrimonial causes are expresly forenamed do procure from Rome or any other Foreign Court out of this Realm any manner of Foreign Process Sentences or Judgments of what kind soever or execute any of the same or do any Act c. such persons shall incurr a Praemunire I understand not Law and therefore referr this to you and those who do Only I observe 1. That the Word in the Statute is not Copulative If any Man do Procure and Execute and do any Act c. but Disjunctive If any Man Procure or Execute or do any Act c. That is if any Man do any one of those particulars mention'd if he either procure such Foreign Sentences or Execute or Abett and Assist c. Though he do not all yet he is liable to the punishment appointed by the Statute 2. That the end of the Statute is to provide against the damages and greivances of the Subjects of England and therefore forbids all Appeals to any Foreign Court Prelate or the Pope or to bring in any Foreign Process Sentence or Judgment given in any Foreign Court whatsoever And this is one reason of the Prohibition which the Statute doth instance in because neither the necessary proofs nor the true knowledge of the Cause can neither there be so well known nor the Witnesses there be so well examin'd as within the Realm so that the parties grieved by means of the said Appeals be most times without remedy So that though the Title and Epigraphe of the Statute be against Appeals to any Foreign Judicature yet in the body of the Statute the bringing in and executing of any Foreign Process Sentence or Judgment are equally forbid Thirdly Now for Gallina no Subject of England though now resiant here to bring in a Sentence of a Foreign Court and though the Proofs or Reasons of it be utterly unknown to plead it and have it without Examination executed to the Irreparable damage of a Person of Quality and a native Subject of England this seems to me to be against the true intent and meaning of this good Statute To conclude I do and must confess that of the Laws I have ventur'd to cite Law being none of my Profession I am no competent Judge and therefore begging your Pardon for my mistakes and medling with them I referr them and my self to You and the Learned Gentlemen of the Long Robe who best understand them who can I know easily discover my mistakes and will I hope without any severe Censure pardon them But for the Theological part of the Controversie and the Case of Conscience wherein his Judges in the Ecclesiastical Court and Mr. Cottington are concern'd this being within the
compass of my Calling and Profession I may and with modesty and more confidence do affirm 1. That till the pretended Nullity of the Matrimonial Contract between Patrimoniale and Gallina do upon just grounds and such as may induce a moral certainty appear no Judge can Conscientiâ Justitiâ salvis by a judicial Sentence require Mr. Cottington to Co-habit with Gallina For in this Case idem est non esse non apparere Gallina must be reputed Patrimoniale's Wife he yet living to whom she was first contracted Solemni Ecclesiae ritu and with whom she Co-habited sine querelâ a year and an half and by whom she had a Child I say she must be reputed his Wife till it appear she is not And 't is impossible that should appear till the Nullity of that first contract be legally and sufficiently proved 2. And if any Ecclesiastical Judge should decree Mr. Cottington to Co-habit with her before such Nullity which is pretended but hitherto no way proved do sufficiently and by legal and just proofs appear yet notwithstanding such Decree 't is impossible for him with a safe Conscience to Co-habit with her as his Wife Seeing for ought appears or he knows she may be anothers Man's Wife rather than his And certainly he is highly concern'd to be sure that she is indeed his own Wife before he give her that due Benevolence which without great Impiety and Adultery cannot possibly be given to any other who really is not his Wife c. Your Servant T. Lincolne PAtrimoniale and Gallina intermarry Anno 1664. and Co-habit about twenty Months and have Issue a Daughter But Gallina afterwards not liking that Marriage pretends it was Null propter vim metum and obtains a Sentence of Nullity from the Archbishop of Turin but without any defence for ought appears made by her Husband Patrimoniale or proof of the pretended force or fear And in the said Sentence of that Archbishop there is a Condition interposed in these Words viz. Saving however the solemnity required by the Holy Council and a solemn Oath to be before-hand taken before Us by the said Gallina that she contracted the said Marriage on force and for fear of her Father and that she gave not her free consent unto the said Marriage and by the Certificate annext to the Archbishop's Sentence it appears that she Swore That by the force and fear that she was put into by her Father she contracted Marriage with Patrimoniale and that in that Contract she did not give her free consent but does not swear that she gave not her consent to the said Marriage Patrimoniale afterwards marry'd another Wife and Gallina being thus separated doth in the Year 1671. marry Mr. Cottington against whom in the Year 1674. she brings an Action in Causa Matrimoniali before the Dean of the Arches here in England where she doth Alledge and prove her Marriage with Mr. Cottington to which Mr. Cottington doth answer That her first Husband Patrimoniale was and is still alive She replies 't is true but that first Marriage of hers was declared Null and Void by the Archbishop's Sentence and Mr. Cottington rejoins That that Sentence it self was Null and Void being given without proof and contrary to Law The Dean of the Arches having this Fact before him doth give Sentence for this second Marriage of Gallina and enjoins Mr. Cottington and her to Co-habit alledging that he hath no power and is not by Law to examine or question the Validity of the Archbishop's Sentence but ought notwithstanding any Defects or Nullities therein to give Sentence for this second Marriage of Gallina Mr. Cotttington sayeth That the Dean of the Arches at the time of his giving Sentence against him declared his Mind in Words to this effect viz. As a private Man I should look upon the Sentence of the Archbishop of Turin for dissolving the Marriage between Patrimoniale and Gallina to be an irregular wrongful and an unjust Sentence but as I am a publick Minister I must look upon it as good against Mr. Cottington because all Sentences given beyond Sea by any equal Court I ought to look upon as good whether good or bad having no power to reverse or examine them and therefore ought to cast Mr. Cottington in this Case It is not on Mr. Cottington's part denyed but that when he Married Gallina he knew of her being Married to Patrimoniale and of Patrimoniale's being still alive when he the said Cottington marry'd Gallina nor is it alledged and proved by Gallina in this Cause here in England that she at any time made any Protestation of the pretended force and fear she was under or that she used any endeavours to escape from Patrimoniale when she was in a safe place and might have escaped from him if she had pleased but on the contrary her Co-habitation with Patrimoniale for about twenty Months and her having had a Child by him in that time and her having the usual liberty of Women in a Married Estate during that Co-habitation hath been proved in the Court of Arches by her own Witnesses But Mr. Cottington being unwilling to make unnecessary contests with the Sentences of Courts and being now fearful of offending God or his own Conscience doth most humbly request the Reverend Doctor Richard Allestry the Regius Professor of Divinity in the University of Oxford to give him his Opinion whether the matter of Fact being true according to the Premisses he the said Cottington may Salvâ Conscientiâ Co-habit with Gallina as his Wife Supposing this Case justly stated and the matters of Fact true according to the Premisses I conceive the marriage of Patrimoniale and Gallina especially being ratified by such Co-habitation and the effects of it valid and firm And consequently notwithstanding any Sentence of Nullity that she is his Wife and therefore that no other person can Co-habit with her Salvâ Conscientiâ as with a Wife October 11th 1677. Richard Allestry MR. Cottington having desired the Opinion of Dr. Hall the Lady Margaret's Professor of Divinity in Oxford to the same case propounded to him as was to Dr. Allestry the Regius Professor there Dr. Hall gave his Opinion thereupon as followeth viz. As this Case is Stated I conceive that the Marriage of Patrimoniale and Gallina is not Null and therefore Mr. Cottington cannot with a safe Conscience Co-habit with Gallina as his Wife Jo. Hall Mr. Cottington for his further information sent the following Case to the Doctors of Sorbonne and had the following return from them LUcius an English Man Marries Sempronia an English Woman in England according to the Laws and Customs of the Church of England and she Co-habits with him about a year and a half and has a Child by him and afterwards she makes Application to Titius the Bishop of the Diocess in England and alledges before him that her Marriage with Lucius was made by fear and force of her Father and therefore desires that he by his
definitive Sentence would dissolve that Marriage which Titius accordingly doth and by his Sentence declares it Null and Void and by the said Sentence pronounceth it lawfull for Lucius and Sempronia to marry whom they will yet so that a solemn Oath be taken by Sempronia that she contracted Matrimony with Lucius out of fear and force from her Father and that to her Marriage with Lucius she gave not her free consent which Oath she took and no proof of the fear and force in that her Marriage with Lucius appears to have been otherwise made before Titius Sempronia afterwards in England Marries Caius a French Man Lucius being still alive and Caius after that going into France and there living a part from Sempronia she is advised by her Councel to cause Caius to be cited before Maevius a Bishop of the Roman Catholick Church in France and to endeavour to obtain the Sentence of Maevius to compell Caius to Co-habit with her saying That her Marriage with Caius is not Null and Void although Lucius was still alive because her Marriage with Lucius was dissolved and declared Null by the Sentence of Titius who though he was a Protestant Bishop of the Church of England and though that Sentence as to its form was Irregular and Null and as to its substance contrary to the Law of God and to the Law of the Roman Catholick Church and contrary to the Canon and contrary to the Law of France and even contrary to the Laws of the Church of England yet the said Sentence being de facto given by Titius her Councel saith That Maevius hath not power to question it nor to pronounce contrary to it as being but of equal power with Titius they both being Bishops of several Diocesses but that he ought to pronounce Caius and Sempronia lawfull Man and Wife and command them to Co-habit and he declares that his Opinion in this Case is according to the practice of France Now the Query is if Maevius hath not power to question the Sentence of Titius because he is but of equal Power with Titius they being both Bishops though of different Countries and Churches and if he ought to pronounce Caius and Sempronia lawfull Man and Wife and command them to Co-habit The Doctors in Divinity of the Faculty of Paris under written having seen the Case above put with all its circumstances do esteem that the first Marriage is valid and that the first Sentence given by Titius is against all sort of Justice and therefore that the second Marriage is Null Given at Paris the 16. of Decemb. 1677. Puischard Thuby Here follow the Opinions of Sir Richard Lloyd and Dr. Richard Raines Doctors of Law THE CASE PAtrimoniale and Gallina intermarry 64 and Co-habit about twenty Months and have Issue a Daughter But Gallina it seems not liking that Marriage pretends it was Null propter vim metum and obtains a sentence of Nullity from the Archbishop of Turin but without any defence for ought appears made by her Husband Patrimoniale or proof of the pretended force or fear Gallina being thus separated doth Anno 71 marry Cottington against whom Anno 74 she brings an Action in Causa Matrnioniali here in England where she doth alledge and prove the second Marriage To which Cottington doth answer that her first Husband Patrimoniale was then and is still alive She replies 'T is true but that first Marriage was declared Null and Void by the Archbishop's Sentence and he rejoins That that Sentence it self was Null and Void being given without proof and contrary to Law The Ecclesiastical Judge here in England having this Fact before him doth give Sentence for this second Marriage and enjoins the Parties to Co-habit alledging that he hath no power and is not by Law to examine or question the Validity of the Archbishop's Sentence but ought notwithstanding any Defects or Nullities therein to give Sentence for the second Marriage Q. Whether the Judge of one Territory may by Law examine and question the validity of a Sentence of a Foreign Judge and in particular as this Fact is where it is given in a Matrimonial Cause A. We conceive that the Judge of one Territory cannot directly examine and question the Sentence of a Foreign Judge because he hath no Superiority over him But if it happens that such Sentence doth upon any incident come before him as if he be requested to put the same in Execution or if one of the parties litigant shall as the cause may require make his Plea and found his intention on such Sentence then the Judge may enquire into the grounds and merits thereof and if he finds it is not agreeable to the Principles of internal Justice and that it wants the substantials of a Sentence requisite not by the positive Laws of the place but by the common and general Law by which it is supposed the Case is to be judged he is to forbear putting the Sentence into Execution or to admit it as a Plea untill those points be declared wherein he finds or hath just cause to judge it is not agreeable to the Law There is a great difference in this matter betwixt Judges of the same and a Foreign Territory In the first Case the Sentence of the Superior is of force by reason of Subordination and Subjection and for that Cause Res judicata pro veritate habetur But in the second Case the Sentence is not simply took for truth it hath only a presumption for it And when that is took off by clearer evidence it hath no force and operation on a Foreign Judge who is to observe the Rules of that general and Common Law and to respect the precept of the same Law which saies An unjust and null Sentence is not to be executed or regarded rather than the meer Authority and Jurisdiction of any equal Court and Judge Now the substance and perpetual rights of Marriage are determined by the Law Divine and observed in the Catholick Church which hath added some Supplement or Explications thereunto All which at least where they are received and practised as they are here in England make the common and general Law to which every Ecclesiastical Judge there is subject and which he is ex officio and by the precept of the Law bound to observe even against the consent of Parties and the authority of any Co-ordinate equal Judge The Premisses considered since in this Case here is a perpetual impediment objected by Cottington viz. That the first Husband of Gallina was then and is still alive and since the Archbishop's Sentence is grounded on a pretended force and fear not proved for ought appears and if it was it is by the abovesaid Co-habitation and Issue purged in construction of Law we are of Opinion that the Judges of this Territory ought not to pronounce for the second Marriage untill they shall be satisfied if it may be that the Archbishop's Sentence was good and valid Rich. Lloyd Rich. Raines In
have Sentence for the Nullity of her own Marriage according to Justice It is objected on the behalf of A. B. That she ought not to be admitted thereto for these causes viz. Because the Marriage with the Scottish Woman was solemnized in Scotland the sentence of Divorce was given in Scotland by the Judges there where the Judges of England have no Jurisdiction nor Superiority over them That there was no appeal or provocation from that Sentence That it was given by the Judges of an high Court in Scotland from whence no Appeal lieth And that if the English Woman's marriage should be pronounced void here in England the justice of the Realm of Scotland may thereby seem to be taxed The Question is Whether the Ecclesiastical Judges or Judge having Jurisdiction in the place in England where the said A. B. and the English Woman dwell be competent Judges and may and ought at the Petition of the English Woman to hear and determine this cause of Nullity of the marriage between her self and A. B. notwithstanding the former Objections We are of Opinion without any doubt That the Ecclesiastical Judge haing Jurisdiction in the place in England where the said A. B. and the said English Woman dwell may and in Justice is bound at the complaint of the said English Woman to hear and determine the said cause concerning the validity of her said Marriage and to pronounce the marriage between her and A. B. to be void if she prove before him the matters by her alledged notwithstanding the aforesaid Objections Neither can the Justice of Scotland be thought to be impeach'd thereby though upon sufficient proof made before the Judge here in England which was not made before the Judges in Scotland he giveth a Sentence which may seem repugnant to the Sentence given in Scotland In a Manuscript Book of several Collections made by Sir Julius Caesar Master of the Rolls and Chancellour of the Exchequer and one of the King 's most Honourable Privy-Council there is referr'd to in the Index of the Contents writ with his own hand viz. That the question between Sir John Kennedy Knight and his Lady touching the lawfullness or unlawfullness of their Marriage may be tryed heard or determin'd in England where both parties are inhabiting And from Fol. 2d of that Book to Fol. 8th the following Leaves are Transcribed the Page before Fol. 8th in Sir Caesar's Book is thus with his own Hand indors'd viz. The Reasons of the Resolution of A. B. 25. Jan. 1610. The said Manuscript Dr. Trumball borrowed of Sir Charles Caesar and it yet remains in the Doctors Hands 'T is markt in the back C. S. 8. Certain Points in Law and Reason whereby it may plainly appear that the question between the Lady Kennedy and Sir John Kennedy concerning the Validity of their Marriage may and ought by ordinary course of Law be heard and determin'd before the Ecclesiastical Judges in England who have jurisdiction in the places where they both dwell Whereupon the Civilians have grounded their Opinions given in this Case to that effect FIrst by Law and Reason there can fall out no Question or Controversie between any Persons inhabiting in any Civil Common-wealth or State but the same must be decided by some competent Judge or Judges who ought to have Authority to hear and determine the same or else there must needs ensue Confusion and Horrour Secondly When any Controversies happen between any Persons proceeding of any contract whatsoever that require a Determination or ending by Judgment wheresoever the Contract was made those Judges are by Law the competent Judges to hear and determine that Controversie who have jurisdiction and power in the place where both the parties or the party defendant dwelleth to hear and determine causes of that Nature Thirdly If there fall out any Controversie between any two Persons the Defendant cannot be compelled to appear to answer the Plaintiff but before the Judge of the place where the Defendant dwelleth and especially if the Plaintiff himself dwelleth under the same Jurisdiction Fourthly In all Causes where there may ensue peril of Soul and continuance in Sin the Judge of the place ought of his Office to enquire thereof and redress the same though no Man complain thereof Whereupon it followeth That the Ecclesiastical Judges here in England who have Authority to hear causes of Matrimony are the competent Judges and have power to hear and determine this matter of the lawfullness or unlawfulness of the Lady's Marriage and the rather for that the Lady's Marriage which is the principal matter in question was made and solemniz'd here in England If it be objected That because that Point whereupon the Validity or Invalidity of the Lady Kennedy's Marriage dependeth viz. the Marriage between Sir John and Isabel Kennedy is already adjudged by a definitive Sentence long since from which there hath been no appeal or provocation and therefore it must Barr the Lady We answer That although in Causes of other Nature where no danger of sin might ensue though the Sentence were against the truth if a Sentence be once lawfully given and not appealed from in due time the matter cannot be called in question again yet where a Sentence is given to dissolve or anull a lawfull Matrimony that Sentence may at any time though never so long after be called in question and reversed whensoever it may be made to appear that the truth is contrary to that Sentence and that may be done even by the party himself who obtain'd that Sentence And therefore not only Sir John Kennedy but Isabel her self might have reversed that Sentence proving the same was given by error much less shall the Lady who was not party to that Sute be thereby debarred from proving the Nullity of her Marriage being a distinct cause from that And the reason of the difference between a Sentence against a Matrimony and a Sentence in another Cause is because in other Causes where no fear is of Sin or peril of Soul to ensue the parties may by their agreement make what end of the Business they list by composition or otherwise And therefore if they do not appeal from the Sentence given against them they are thought by their consent to confirm the same but because a Marriage by God's Law cannot be dissolved by the Agreement or Consent of the Parties no Sentence therein given against a Marriage contrary to the truth by error can by the Parties agreement be confirmed lest if it should be otherwise thereby they might by colour of the erroneous Sentence marry other Persons and live in Adultery Nay more If the Parties themselves thus erroneously divorced contrary to the truth would hold themselves contented with the Sentence if either of them marry any other Person or they both live incontinently with other Persons the Judge of that place where they inhabit may and ought of his own Office to inforce the Parties so by error divorced to live together again
as Man and Wife and separate them from their second Spouses If it be objected That the Sentence was given in another Country where the Judges of England have no Jurisdiction and in an High-Court from whence there lieth no Appeal and that the Judges of England have no Superiority to call their Sentences in question and that therefore the Lady cannot call that Divorce in question here We answer That the principal cause in this case of the Lady's is not to reverse or call in question the Sentence given in Scotland but the principal Cause here is Whether her Marriage made in England with Sir John be of Validity or no For that as we say Sir John had another Wife living viz. Isabel Kennedy at the time of her Marriage without any mention to be made by the Lady of any Sentence of Divorce given in Scotland against which our Allegations if Sir John object That he was Divorced from her by Sentence in Scotland this question of the Divorce is brought in but incidently by Sir John in this Cause and also vainly and impertinently if it can be proved that the truth is contrary to that Sentence for that Sentence is in Law meerly void and cannot Barr the Lady for the reasons before alledged and for that Ecclesia was decepta in giving of that Sentence Now when a Sentence which is void in Law and especially against a Marriage is called in question but incidently before any Judge whatsoever though an inferior in a Cause which doth principally belong unto his Jurisdiction that Judge may take knowledge of and incidently examine the validity of that Sentence whether it were good or no by whom and wheresoever that Sentence was given though he were never so Superior a Judge not to the end to reverse or expresly to pronounce that Sentence to be void or not void but as he findeth it by examination of the Cause to be good or void so to give Sentence accordingly and determine the Cause principally depending before him without ever mentioning the erroneous Sentence in his Sentence Neither can the Sentence given here for the Nullity of the Lady's Marriage upon other matter than was pleaded and proved before the Judges in Scotland although the same Sentence had been principally called in question and directly pronounced to be void any ways impeach the Justice of Scotland for sith Judges in all Courts and Causes must judge according to that which is alledged and proved before them what impeachment is it to the justice of any Judge although his Sentence be revoked and a contrary Sentence given by another Judge when the parties between whom the Sute is either cannot or through negligence or collusion will not alledge or make such proof before him the first Judge as they might but afterwards before the second Judge good and sufficient proof is made a matter which falleth out every day here in England in every Civil and Ecclesiastical Court upon appeal made from one Court to another and the like falleth out in all other Countreys and yet the former Judge whose Sentence is revers'd thinketh not himself any whit impeached of injustice thereby That the absurdities which would ensue may by example more plainly appear if the Law should not be as we say Put this Case A Widower in the confines of England towards Scotland marrieth a Wife in a Parish-Church publickly in the presence of a hundred Witnesses and afterwards they live together by the space of a Year and have a Child at the years end upon some discontentment they both being desirous to be rid the one of the other the Woman in England sueth her Husband to be Divorced from him pretending that at such time as he married her he had another Wife living and produceth Witnesses which prove that he had married another Wife before he married her and Paradventure make some probable shew that that Wife was living when he married his second Wife who in truth was dead before as the Man could have plainly proved by twenty Witnesses if he had listed notwithstanding the Husband being willing to be rid of his Wife either would not plead that his former Wife was dead or else would not make any proof thereof Whereupon the Woman obtaineth Sentence against the Man whereby the marriage between them two by this collusion and error is pronounced void from which Sentence there was no Appeal or Provocation Now within a Month after this Divorce this Man goeth into the Confines of Scotland not ten Miles from the place where he and his divorced Wife formerly dwelt and there marrieth another Woman being ignorant of the former Wife and collusory Divorce and there Co-habiteth and dwelleth with her This Woman shortly after understanding of the premisses and that she could not be his lawful Wife but liv'd in Adultery with him desireth before the Judge in Scotland under whose jurisdiction they both dwell to be divorced from him and to be delivered from her adulterous living with him and offereth to prove all the Premisses most manifestly Were it not now a most absurd and abominable thing that this Woman should have no remedy any where but be enforced to live still in Adultery with this Man because the Sentence of divorce was given by a Judge in England pronouncing the Marriage between the Man and his second Wife to be void whereas it can be most manifestly and apparently proved that his first Wife was dead before his second Marriage and so the Sentence was given against the apparent truth And what impeachment of injustice can this be to the judge in England before whom it was never proved That the Man's first Wife was dead to have his Sentence reversed upon new proofs made before the Judge in Scotland Now between the Lady's Case and this Case there is no difference in truth of matter and point of Law only by reason of the multitude of the Witnesses the nearness of the time and place when and where these things in this case were done The truth thereof may more easily and readily be proved than in the Lady's cause it can but if the truth in her Case be proved though with more difficulty the Cases are all one If any Man shall yet doubt whether this cause can be heard and determin'd by the Ecclesiastical Courts in England it is desired That Sir John's Councel considering the Marriage was made here in England and the Lady and Sir John do both dwell here and by Law Sir John is not compellable to appear in any other place than England for this matter they would tell before what Judge this matter should be heard and determined For it is to be presumed that when two persons live in Adultery together and so in continual sin and the one of them seeketh redress and to be freed from that sinfull and adulterous life no Man will say That he or she shall be compelled to live notoriously in Adultery still and have no Judge at all to separate
create a new Marriage instead of that which was Null and Void for want of free consent but ratifie only and confirm the first or rather give us an assurance and demonstration that that was a free internal consent which was exprest in the Form of the Council notwithstanding those specious Pretences to the contrary whereby she would impose upon us and according to which we that can see no further than outwardly ought to have judged in Case there had not been these subsequent Acts and therefore undoubtedly there needs not a second Celebration in the Form of the Council when by thâ—se Acts we are assured that she gave her free consent in the First Ex coitu matrimonium praesumi si prius consensus verbis expressis sed propter causam aliquam vel impedimentum humani juris nullum praecesserat satis senim tacitè aliquo sufficiente signo novum consensum praestari says Parisius who was a Cardinal since the Council of Trent Q. 4. In Case the Council does authorise its Dissolution whether it does therein act contrary to the Law of God A. I 'll leave this question to the Divines but if that be Law I have said before then I think God has joyn'd them Q. 5. Supposing the Council of Trent does authorise its dissolution and that it does not act contrary to the Law of God therein whether according to the due and usual proceeding of our Courts and the Laws of our Nation where the Council of Trent was never received we shall or ought to allow of such a proceeding upon the account of a community of Rights or any other account whatsoever A. I am of Opinion in the Negative For however it may be in Civil Causes in point of Commerce or the like the Reason is not the same in Criminal or Matrimonial ubi vertitur periculum animae which may arise from the difference in Laws and Religions for 't would be strange Doctrine to assert That a Subject of England ought to be executed here upon a Sentence of Heresie in Rome and as strange to adjudge the dissolution of a Marriage here because it was not celebrated according to the form of the Council of Trent or rather as this Case is To force a Subject of England to Cohabit with a Woman who in the construction of the Laws in England is another Man's Wife for that is done by putting in Execution here a Sentence of Divorce which was given at Turin upon the Council of Trent which Council was never promulgated in England and when the Law is in Terms otherwise Hipol de Morsil singular 138. n. 2. Judex says he unius territorij mandat Executioni sententiam judicis alterius territorij c. Tene tamen mente quòd istud procedit quando Judex pronunciavit secundum leges non autem statuta ipsius loci tum alter judex non tenetur And therefore says Jason In executivis debent attendi statuta illius loci in quo fit executio non alterius secundùm Bart. omnes And further says Angelus l. Si ut proponi c. De execut rei Jud. Talis Judex alterius territorij potest de iniquitate talis sententiae cognoscere si viderit esse iniquam aut de hoc vehementer suspicaretur non debet illam executioni mandare And this is the common Opinion William Oldys I have read and considered the Answers given by Dr. Oldys to the foregoing Questions and do agree with him in Opinion Richard Lloyd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 DE JVDAEIS in Reipublica Christiana tolerandis vel de novo admittendis THE CASE OF THE JEWS TO this Question in short I say 1. That in Scripture we meet with a Jew in a Double Notion 1. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Corde 2. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Carne 2. For the First they are called Circumcisio Spiritualis in Spiritu The Second Circumcisio Carnalis in Litera De Judaeis Corde non quaeritur For so every true Christian is in Scripture called a Jew Rev. 3. 9. Rev. 2. 9. 3. For the Second Sort of Jews in Carne they are 1. Natione tantùm Judaei 2. Religione tantùm 3. Natione Religione simul Now the Question is only of a Jew in Religion of what Nation soever or of him who is a Jew Natione Religione simul Whether such may be admitted in a Christian Common-wealth In Answer to this Question I say That the Toleration or Admission of such Jews may be considered in a Twofold Relation 1. Respectu Reipub. 2. Respectu Ecclesiae 1. In Respect of the Common-wealth there are only Two Things properly considerable to a Statesman which may make their Toleration or Admission Legal or Illegal Convenient or Inconvenient according to the Nature and Condition of those Politick Considerations Now these Considerations are 1. Whether there be any Law of the State against such Jews being here for if there be then stante Lege they cannot legally be admitted And in England there is such a Law but that Law taken away and as the Supreme Power made it for good Reasons as they conceited then so the Supreme Power may possibly for better Reasons alter it now the State may readmit them Lege non obstante So that if the Supream Power abrogate that Law then t is manifest there is no Legal Impediment as to the Civil Law of this Nation but that they may if it seem good to the Wisdom of the State be readmited The Second Consideration as to the Political Part of this Question is the Damage or Benefit the Conveniences or Inconveniences which may accrue to the State by their Admission or Rejection Now as to this I shall add 1. That seeing the Law of Nature and Nations tell us that Salus Populi suprema Lex est if it appear to his Highness and his Council who only are Judges of this and not the People that the Common-weal will be advantaged by their Admission then no doubt they may and ought to be admitted 2. If otherwise they are not Now whether it be for the Benefit and Secular Advantage of the Common-wealth to admit the Jews I shall not Dispute but leave it to the Prudence of the State only I shall observe here Two Things 1. That whilst the Jews lived in England it was a vast Benefit to the Crown I shall give one Instance taken by my Lord Cooke out of the Records That from December 17. Anno 50. Hen. 3. till Shrovetide 2. Edvardi 1. which was about Seven Years the Crown had 420000 l. 15 s. 6 d. De Exitibus Judaeorum The Ounce of Silver was then but xx d. and now t is more than thrice so much so that as Money goes now The Crown had of the Jews in Seven Years above 1260000 l. such a Sum now might save Contributions 2. It appears by our Story that the Jews at their Expulsion and many times before were
the Conquest above 600 Years ago and confirmed by the Conquerours amongst other the good Laws of Edward the Confessor and so continued Law for ought I know in all the Kings Reigns till the Banishment of the Jews which was Anno 18 Edvardi 1. The Law is this Sciendum quoque quod omnes Judaei ubicunque in Regno sunt sub tutelâ defensione Regis ligeâ debent esse nec quilibet eorum alicui Diviti se potest subdere sine Regis licentiâ Judaei enim omnia sua Regis sunt Quod si quisquis detinuerit eos vel Pecuniam eorum perquirat Rex si vult tanquam suum proprium I wish the chief Magistrate could admit them on these Terms for so they and all theirs omnia sua should be suum proprium which possibly might supply him with Money and so save Taxes And upon these Terms I and I believe every body else will willingly consent to their Readmission If any desire further Satisfaction in this particular either from Civilians Schoolmen Casuists Canonists Historians or other Divines he may consult these or such like I. Justinian Cod. de Judaeis Caelicolis lib. 1. tit 12. and the Gloss there II. Codex Theodosianus de Judaeis Caelicolis Samaritanis lib. 16. tit 8. pag. 515. III. Jacobi Sirmondi Appendix Cod. Theodosiani leg 6. pag. 14. leg 4. pag. 11. IV. Marquardus de Susanis Tractatu de Judaeis aliis Infidelibus inter tractatus Illustrium tom 14. pag. 28. Vide Bernardum Hieronimum Alexandrum Il tum aliosque Auctores ab eo ibidem citatos V. Mathaeus Wesenbecius in Comentario in Codicem Justinianeum de Judeis tit 9. pag. 14. VI. Decretum Gregorii extra de Judaeis Saracenis lib. 6. tit 6. VII Clementinar lib. 5. tit 2. de Judaeis VIII Corvini Jus Canonicum tit de Judaeis pag. 295. IX Fredericus Balduinus Casuum Conscientiae lib. 2. cap. 6. casu 5. pag. 188. X. Capitulare Caroli Magni lib. 6. cap. 120. cap. 308. XI Hen. Altingus Problematum Theolog part 2. problemate 21. pag. 340. XII Petrus Crespetius in summa Ecclef Disciplinae Verbo Judaeus pag. 520 c. fuse XIII Phil. Melancthon Epist. lib. 1. epist. 68. pag. 75. In Edit Corn. Bee XIV Martinus Becanus in compendio manualis lib. 5. cap. 17. pag. 509. XV. Decretum Concilii Viennensis contra Judaeos apud Hen. Canisium Lect. Antiquarum tom 1. pag. 621. apud Binium tom 3. parte alterâ pag. 1493. XVI Filiucius Casuum Conscientiae tract 22. cap. 5. pag. 40. col 2. de Judaismo XVII Johannes de Lugo de virtute fidei divinae disput 22. sect 4. Auctores ibi citat XVIII Bodinus de Repub. lib. 3 4. XIX Statutum de Judaismo apud D. Edvardum Cooke Institit part 2. pag. 506. Commentarium ejus in dictum Statutum XX. Aquin. 2. 21. quaest 10 11. vbi varia occurrunt de Judaeis XXI Erasmus Brockmannus Systemate Theologiae universae art 41. cap. 2. quaest 9. tom 2. pag. 5043. XXII Basilica Lenuclavii lib. 1. tit 1. cap. 9. de Judaeis Pag. 2. XXIII Hieronymus de sanctâ fide lib. contra Judaeos XXIV Petrus Galatinus de Arcanis Catholicae veritatis XXV Gilbertus Genebrardus in Symbolae fidei Judeorum è R. Mos. Aegyptio c. XXVI Vide etiam si placet Scriptores innumeros penè quos exhibet Georgius Draudius in Bibliotheâ Classicâ inter Libros Theologicos pag. 349 350 c. Alii alios de facili addant FINIS THE CASE Of Setting up IMAGES IN CHURCHES A Breviate of the Case concerning Setting up Images in the Parish-Church of Moulton in the Diocess and County of Lincoln Anno 1683 4. UPON pretence of adorning beautifying the Church some of the Parishioners did 1. Wash out all the Sentences of Scripture formerly writ upon the Walls in that Church 2. Then without the Approbation and Advice or the general Consent of the Parish they set up the Images of five or six of the Apostles which giving great Offence for thirty seven of the Parishioners did under their Hands protest against it they procured an Order from the Deputy-Chancellor of Lincoln to approve and confirm what they had done and authorize them to set up as they were pleased to call them more Effigies 3. By this Order and Authority they set up the Images of thirteen Apostles St. Paul being one the Image of Peter they placed above the Ten Commandments and that of Paul above the King's Arms and the Holy Ghost in the Form of a Dove over them and in contempt of the Translation of the Bible approved and received in the Church of England and in compliance with the erroneous and ridiculous Vulgar Latine they picture Moses with Horns 4. Then when they had done all this they did ex post facto petition the Bishop for his Approbation of what they had done who denied their Petition and for Reasons given them some of which here follow told them that he never would nor de jure could approve what they without and against Law had done 5. Lastly The Chancellor nulls the Order of his Deputy as to the setting up of those Images and those who had done that Work without the Consent of the Parish appeal to the Arches where now that Appeal depends This is the Sum of what the Painter and Parishioners have done in setting up so many and such Images as I believe no Church in England has seen since our Reformation and I hope never will permit and what the Deputy-Chancellor as he and they think confirmed But what they have done is Unwarrantable and absolutely Illegal contrary to our known Laws against the Authority and Doctrine of the Church of England Declared and Established both by our Ecclesiastical and Civil Laws and to omit others in these Particulars 1. It is confessed that to beautify Churches which they pretended is a Pious and Worthy Work But in doing this the Way they took was Unwarrantable and Illegal for our Supreme Power Ecclesiastical the King in Convocation requires That our Churches should be decently beautified not according to the Humour of an ignorant Painter and some few Parishioners but according to an Homily published for that purpose in which Homily compared with the 2 d Part of the Homily for the right Use of Churches it appears that Images are so far from beautifying that if they be set up they defile and pollute our Churches 2. Their razing out the Sentences of Scripture formerly writ upon the Walls was absolutely Illegal and by no Law Warrantable For those Sentences were placed there as appears by the Canon by the Supreme Power of the King in Convocation and therefore for the Painter and Parishioners to take away that which the Supreme Power had by express Canon placed there must of necessity be Unwarrantable and absolutely Illegal Nor could the Deputy Chancellor's Order got ex post
facto confirm what they had illegally done For it is both Reason and Law that a Nullity is not capable of Confirmation because Confirmation always presupposeth some antecedent Right in the thing to be confirmed It does not give a Right but does only strengthen an antecedent infirm Right Now it is certain that the Parishioners had no Right to raze out those Texts of Scripture which the Supreme Authority had placed there and therefore no Order got ex post facto could confirm what they had Illegally done 3. Nor could the Deputy-Chancellor's Order if they had procured it before they went to raze out those Texts of Scripture formerly writ upon the Walls have given them any just Power to raze out those Texts it being impossible that any inferiour Judg or Court should null the Sentence of the Supreme I know that Pope Gregory the First one of the first Introducers of Popish Superstition about Images tells us that Images are Lay-mens Books and that Pictures are as profitable to Idiots who cannot as the Scriptures are to those who can read them An Assertion evidently erronoous and impious And yet the Trent-Conventicle to the same purpose faith That Images instruct and confirm the People in the Articles of Faith to their great Benefit But God Almighty by his Prophet tells us That Images are Teachers of Lies This King James of happy Memory and his pious and learned Convocation well knowing and that the Church of England had condemned the setting up of Images in our Churches as shall anon appear they Decree and Command That instead of Popish Images which were Teachers of Lies the Ten Commandments and choice Sentences of Scripture should be writ upon the Walls of our Churches whence without fear of Error the People might learn Divine and Infallible Truths And here the Saying of an antient and excellent Person is worthy of our Memory and Consideration 't is this They deserve to err who as the Papists do seek Christ and his Apostles not in the Sacred Scriptures but in Images and Pictures I know that the Painter and those few Parishioners who were for taking away those Sentences of Scripture antiently writ upon the Walls have instead of them writ some other Sentences of Scripture in several Places where none were before But this does not excuse but rather aggravate their Crime For 1. This was not done till some time after they had finished their Work wash'd out the Texts of Scripture antiently writ upon the Walls and set up all their Images When finding what they had done displeased many particularly their Bishop and that their Proceedings were censured as Illegal and by no Law Warrantable then and not till then they caused some other Texts of Scripture to be writ upon the Walls 2. And this they did without any Advice or Direction of their Minister or any who had the Cure of their Souls Whereas the Canon required that chosen Sentences of Scripture should be writ upon the Walls And we may be sure that the pious and learned King and Convocation who made that Canon did not intend that the ignorant Painter and poor Parishioners but some who had more Understanding and Cure of their Souls should choose such Sentences as should be for the Peoples Edification most plain and pertinent But no more of this For although what the Painter and a few private Persons did against the Canon and Constitution of the Supreme Power was Illegal and by no Law Warrantable yet the setting up Images in the place of those Sentences of Scripture which they have erazed was much worse as being repugnant and directly contrary to the Doctrine of the Church of England which has been and is approved and by our Supreme Power at present stands established by our good Laws Ecclesiastical and Civil That this may evidently appear it is to be considered 1. That the Popish Church in their Trent-Council which to them is an Oecumenical and General Council does define and command in order to their superstitious and Idolatrous Worship of them That the Images of their Saints be had and retained more especially in Churches where the poor People may see and have opportunity to worship them 2. That in the Reformation of our Church our Supreme Powers who regularly begun and piously and happily finish'd it expresly condemn'd not only the worshipping of Images but the having them in our Churches This does evidently appear in our Authentick Records to say nothing of our Learned particular Writers published by Supreme Authority to that purpose For 1. By the Injunctions of Edw. 6. it is commanded thus They shall take away and utterly destroy all Shrines c. and all Pictures Paintings and all Monuments of Idolatry and Superstition that there remain no memory of them in Walls Windows or elsewhere c. 2. And about three or four Years after in the same King's time it is by Act of Parliament expresly required That all Images graven carved or painted which yet stand in any Church should be defaced and destroyed And though this Statute in favour of Popish Superstition and Idolatry was repealed by Q. Mary yet that Queen's Statute was by good K. James repealed and to prevent and discourage Popery that Statutre of Edw. 6. was expresly revived and so remains still obligatory 3. Queen Elizabeth in her Injunctions Injunct 23. renews the Injunction of Edw. 6. in the same Words That all Images Paintings and Pictures should be taken out of all Churches c. 4. And the Homilies published by Q. Elizabeth tell us that Images de facto were taken out of Churches For the Homily says That the Churches were scowred and swept from the sinful and superstitious Filthiness which defiled them By which as appears by the said Homilies Images are principally meant 5. To the same purpose Cambden in his Life of Q. Elizabeth tells us That Images were actually removed out of our Churches by the Authority of Parliament 6. Once more the learned and incomparable Bishop Jewel in his Defence of his Apology of the Church of England doth both say and prove that Images ought not to be in any Churches or Places of God's Publick Worship By the Premisses it may and I believe does appear that in the Judgment of the Church of England Images are not to be tolerated in our Churches and Places of God's Publick Worship and therefore they were removed and defaced by the Supreme Powers Ecclesiastical and Civil declared and published in Canons of Convocation and Acts of Parliament But here it is objected by the Enemies of our Church and Reformation That our Reformers have been so zealous and indiscreetly fierce against Images that they have condemn'd the ingenious Art of Painting and even the civil Use of Images But this is a malicious Calumny and no real Consequence of our Churches Doctrine about Images as has been expresly and publickly
Gratiâ requested his Lordship to resolve him how far the said Tenet is chargeable on the Church of Rome And thereupon his Lordship was pleased to send him under his own Hand a Paper writ as followeth Quaeritur An Dominium fundetur in Gratia IN Answer to this I shall say only a few things which to me seem certain and evident Truths 1. The Question must be held Negatively Dominium non fundatur in Gratia Neither Dominium Temporale of Kings or Lay-Magistrates nor Dominium Spirituale of the Bishops and Clergy This has been evidently proved by many of our Divines especially and clearly by Dr. Davenant Bishop of Salisbury 2. The Papists who are both the Accusers and Judges do impute this Opinion to Wickliff and Hus and their Followers and condemn the Opinion and them for it as Hereticks for saying that Dominium fundatur in Gratia which is a manifest Calumny and no just or proved Accusation as might be proved out of Hus his printed Works and several Manuscript Works of Wickliff in Bodley's Library But they bring these lying Accusations against them that they may have some pretence to destroy and murder them 3. That erroneous and impious Council of Constance Anno 1413 which is an Oecumenical and General Council at Rome having confess'd that our Blessed Saviour did institute the Eucharist in both kinds they blasphemously add Quod non obstante Institutione Christi they decree That the Sacrament should be taken only in one kind Whence Luther would not call it Concilium Constantiense but Concilium NON-OBSTANTIENSE Now this Council condemns this Proposition Dominium fundatur in Gratia 1 st In John Hus and his Followers 2 dly In Wickliff and his Followers 4. I do not find any Popish Author who affirms and approves this Proposition Dominium fundatur in Gratia in those very Terms in which the Council of Constance had condemned it as Heretical For this were to contradict their own Principles and approve that for Truth which their Supreme Infallible Guide a General Council had Synodically declared Heresy 5. But the Church of Rome though in other Terms doth both profess and practise this Doctrine that Dominium fundatur in Gratia For they say that Dominium fundatur in Fide Religione Catholica so they miscal Popery or the Roman Religion so that if any Man by Apostacy desert their Religion or by Heresy deny any Article of their Faith he does not only forfeit his Dominion over his Inferiors but all his Goods and Livelihood and his Life here and eternal Life hereafter This is the erroneous and impious Doctrine of the Church of Rome approved and vindicated not only by their Schoolmen Casuists Canonists Summists c. but received into the Body of their Canon-Law in their last and as they say the most correct Editions of it and declared and confirmed in their General Councils That this may appear I shall of many hundreds give you some few but pertinent and great Instances 1. Aquinas says PRINCIPIBUS apostatantibus a Fide non est obediendum And again when such an Apostate Prince is excommunicared Ipso facto ejus Subditi à dominio juramento fidelitatis ejus liberati sunt And a little before Haereticus non solum excommunicari sed juste occidi potest excommunicatus ulterius relinquitur judicio saeculdri à mundo exterminandus per mortem His Commentators do believe and as far as they are able justify this Doctrine 2. Alphonsus à Castro is very large and learned on this Subject and proves first That for Heresy a Father does lose the Dominion and yet that Dominium is jure Naturae Patri debitum which he had over his Children Propter Haeresin says he Pater amititt Jus quod habuit super filios c. And again Dominium Politicum amittitur per Haeresin it a quod Rex factus Haereticus ipso jure est Regno suo privatus Dux suo Ducatu c. 3. Nicolaus Eymericus in his Directorium Inquisitorion Parte 2 3. and Francis Pegna his Commentator do assert all and more than I have said and out of many Popish Canons and Councils and Papal Constitutions fully prove it 4. The Canon Law tells us That Bona Haereticorum sunt ipso jure confiscata and not only so but their Children are made incapable of any Benefice or Office Ecclesiastical or Civil Haereticorum filii usque ad secundam generationem ad aliquod beneficium ecclesiasticum seu publicum officium ne admittantur quod st secus actum fuerit sit irritum There are many other Constitutions in their Canon Law which expresly declare that Hereticks that is such as deny any Article of their Popish Creed lose all Dominion Ecclesiastical and Civil of which they were justly possessed before they fell from the Popish Faith into Heresy as they call it 5. Lastly Their Concilium Lateranum Magnum sub Innocentio III. in which there were for so they tell us about 1200 Fathers I say this great Council which they acknowledg to be General or Oecumenical expresly declares That an Heretick tho a King or Emperour does by his Heresy forfeìt all his Dominion and therefore with them Dominion must be in Fide fundatum that is in their Apocryphal Popish Faith For if believing and continuing in that Faith do preserve their Dominion and the rejecting it by Heresy forfelt it then it necessarily and evidently follows that their Roman Catholick Faith is the Foundation of their Dominion and the Cause which preserves it as Here 's is the Cause why they lose it And as this is their Popish impious Doctrine that not only Subjects but Supreme Governors Kings and Emperors forfeit their Dominions by Heresy so the Practice of their Popes has in this case been suitably impious and sinful I need not go far for evident Instances in particular Paul III. excommunicates our Henry 8 for Heresy absolves his Subjects from all Oaths of Allegiance and declares him to have lost all Right to his Dominions So Pius V. for the same reason because Q. Elizabeth was an Heretick excommunicates and deposes her and gives her Kingdoms to Philip the 2 d of Spain who came with his great Armada and the Pope's Benediction which brought the Curse of God upon him and his Fleet for there is no Power or Policy against Providence to take possession of it in 1588. In prosecution of these Principles many hundred thousands have been actually murdered in the Papacy either 1. By open War as in France and the Countries adjoining in Ireland in our late Rebellion c. 2. By their bloody Inquisition 3. Or endeavour'd to be murdered by secret Conspiracies as in our Gun-Powder Treason and many Conspiracies against Q. Elizabeth and our late gracious Soveraign But his Sacred Majesty having graciously promised to maintain the Church of England as it is by Law establish'd who has ever been and I
Consistory I know it passes for good Law and Divinity among the Popish Casuists and Schoolmen that the People are bound to believe their Bishop even then when he preaches Heresie And are so far from sinning in doing so that their submission to the Bishop and believing errors when taught by him is Meritorious It is a Cardinal who tells us Si rusticus circa Articulos fideì credat suo Episcopo proponenti aliquod dogma Hereticum meretur in Credendo licet sit Error quia tenetur credere donec ei constat esse contra Ecclesiam And before him our Countryman and he a famous Schoolman tells us to the same wild purpose Si audiat prelatum praedicantem propositionem erroneam quam nescit esse erroneam credat ei non peccat sed tenetur errare quid tenetur ei credere meretur volendo credere errorem tum simplicitas ignorantia excusant Nay such an ignorant person believing an Error which the Bishop has preached and proposed as a Truth and Article of Faith if he be put to Death and die in defence of that Error which he believes to be an Article of Faith he shall be a Martyr and have the honour and merit of Martyrdom Concedo si interficiatur pro tali errore quem credit esse articulum fidei potest adipisci meritum debitum martyrî quia error invincibilis non diminuit de merito But however this anciently did and at Rome still does pass for Catholick Doctrine with the Pope and his miserably inslaved Party yet the Church of England and all her true Sons believe and know it to be a prodigious and stupid Error Eighthly That our King and Bishops have power to question that Archbishop's or any such Sentence and when our King or his Subjects are concern'd if upon a just Examination they find it for want of Truth or Justice faulty they may justly condemn and reject it This is I believe evident For our Kings and Church of England de facto jure have question'd condemn'd and rejected Sentences of greater Popish Consistories than that of the Archbishop of Turin I mean Sentences given by the Pope himself in his own Consistory and his general Councils Of this we have a hundred Instances I shall for your satisfaction set down three or four thus First Pope Julius the Second Ex plenitudine potestatis certâ scientiâ c. Grants a Dispensation for Hen. 8th to marry the Relict of his Brother Arthur and declares the Marriage to be just and lawfull and yet Hen. 8th and his Bishops b did and justly might afterwards examine the Papal Sentence disobey'd it and declared it Null Secondly Pope Paul the Third Venerabilium fratrum Cardinalium consilio consensu gives Sentence and declares for a general Council and by his Bulls summons it to meet at Mantua then at Vincentia and then at Trent But Hen. the 8th and his Bishops and Parliament having seen those Bulls containing the Pope's Sentence and Decree for and Summons of a general Council at several times and to several places they did not only question his Sentence and Summons but condemned though they were Papists and absolutely rejected it shewing the many Nullities of that Summons and added their Protestation which they made good that they were neither bound nor would obey it as is evident by an Epistle of Hen. the 8th to the Emperor and all Christian Kings and in a Tract containing the Sentence of the King and Parliament and their Protestation against the Pope's Sentence for and Summons to that Council Thirdly When that Trent Council had met and sate eighteen Years made many Canons and Constitutions particularly about Matrimony and pronounced many Anathema's against all who did not believe and obey them The Bishops of England were so far from thinking that they had no power to question those Synodical Sentences and Constitutions that they have constantly and publickly Preach'd and Writ against them and proved them to be in many things erroneous impious or idolatrous Have the Bishops of England power to question and condemn the constitutions and synodical Decrees of the Pope made in his own consistory and his general Councils and have they no power to question one single Sentence given in a consistory of an inferior Archbishop Credat Judaeus Appella Fourthly Pope Paul the Third Habitâ cum Cardinalibus deliberatione maturâ de illorum consilio assensu by a solemn Sentence Excommunicates Hen. 8. Deposes him absolves his Subjects from their Oaths of Fidelity c. So Pope Pius 5. sub eadem formâ Excommunicates and deposes Queen Elizabeth And when some honest and loyal Papists had under their hands signified their b opinion 1. That the Pope could not absolve Papists from their Oath of Allegiance to a Protestant King 2. That he could not Depose and Murder Excommunicate Kings c. I say when this was heard at Rome Pope Innocent the 10 th with his Sacra Cardinalium Congregatio passes a damnatory Sentence and condemns the true opinion of those loyal Papists as heretical declarat subscriptores in poenas in sacris Canonibus Constitutionibus Apostolicis contranegantes potestatem Papae in causis fidei incidisse Now pray ' ask those Gentlemen whether the Bishops of England have not power to question the aforesaid Solemn and Judicial Sentences of the Popes for excommunicating deposing and murdering Kings If they have such power and may question the Pope's judicial Sentences given in his own Consistory or his General Councils then certainly they may much rather question Sentences past in any Archbishop's or inferior Consistory But if they say what I suppose they will not I am sure they should not That we have not power to question such Sentences they must pardon my incredulity if I neither do nor can believe them to be Protestants or true Sons of the Church of England but rather Jesuited Papists for I know none save such who do or dare say That such impious and traiterous Sentences given by the Pope in his Consistory or Councils may not be question'd by any Authority in the Church of England Is it possible that any Protestant nay any honest Papist should seriously think that a Sentence of the Pope to depose a King and absolve his Subjects from all Fidelity and Allegiance to him should be such as is not to be question'd by the King his Bishops or any loyal Subjects If so good night to Monarchy and all the royal Rights of Kings the Pope may when he will depose and deprive them of all their Jura Regalia and their Subjects though by the Law of God and Man obliged to it must not assist them Ninthly It is to be considered That our present Case is an Ecclesiastical not a Civil Cause concerning the Validity or Nullity of a Matrimonial Contract which both by our Laws and those of