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
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
the Index of a Manuscript of Collections by Sir Julius Caesar Fol. 277. is referr'd to under his own hand in which Fol. is contain'd as followeth The Book is markt on the outside A. A. 10. UPon the Treaty with Gray Lord Chandois it was thought meet that 16500 l. should be alloted to the Lady for her right to the value of 14500 l. in Land and 2000 l. in Money But in regard the whole Estate moved from the Lady and that Sir John was able to give her no Advancement or Dower out of his Estate it was thought meet that the Lady should have 8000 l. at her sole dispose and the residue to be at their joint dispose After upon motion on the Lady's behalf out of a fear that the Estate might be wasted by Sir John and thereby she deprived of maintenance she then having on knowledge of the Marriage in Scotland or hope of a Divorce or Nullity of the said Marriage it was appointed that the same should be conveyed over to certain Feoffees in trust to her use that she by her Indenture under her Hand and Seal solely and without Sir John might dispose thereof The which conveyance was directed by three living of this Honourable board viz. The Lord Treasurer the Lord Privy Seal and the Lord Stanhope and by the Lord Popham Lord Tanfield Sir Thomas Hesketh Serjeant Dodridge and Mr. Stephens The Land allotted the Lady being sold for 7800 l with 6500 l. thereof Barn-Elmes was purchased but Sir John being trusted by the Lady to go to Mr. Stephens to draw the conveyance went to other Councel and in the clause where it should be freely at the Lady's disposal solely without Sir John he caused to be inserted these Words That the Lady should have power to convey the same to such intents and purposes as by the said Elizabeth solely and without the said Sir John Kennedy by writing under her Hand and Seal enrolled should be limitted and appointed Wherein besides the contradictariness of the Sence he caused in that Deed delivered the Lady the more to blind her Eyes enrolled to be razed and made indented Deed. 31. Decemb. 3. Jac. And after the Rasure was found out then by his Deed Dat. 2. Julij 4. Jac. he the said Sir John did limit power to the Lady by her Deed inrolled or not inrolled to limit uses The Lady hath been a Suiter two years if Sir John for saving his own Credit will not confess matter to make a Divorce then that in course of Justice she may be admitted to her proof which for that it concerneth matter of State as is suggested she is denyed 1. And therefore she hopeth it is but the same equity to stay his proceeding touching her Estate against her or her Feoffees in Course of Justice considering it is not by her lachess that the Marriage is not disproved untill both the said causes having a dependency one upon another may be handled at this Board 2. The course of Conveyance by Feoffees was by Honourable Personages Grave Judges and Learned Lawyers directed when the Lady was supposed the true Wife of Sir John and they held in Law and Equity sufficient and now à fortiore it should be more sufficient she being none of his Wife if she may be admitted to proofs 3. Sir John hath already advanced himself by the Sale of the Lady's Estate over and above the purchace of Tonbridge which cost 8500 l. wherein he hath a a joint Estate of Inheritance and all her Debts that he hath paid 7500 l. 4. If the course propounded at this Honourable Board shall not hold then will the Lady never assent to Sell and so shall the Debts of the Lady before Marriage now resting unpaid being 2207 l. and Sir John's own Debts rest unsatisfied to the oppression and clamour of many poor Men and the King still troubled with renewing his Protections 5. If Sir John should proceed in course of Justice and that the conveyance made to Feoffees should not be held sufficient and strong enough to convey the same to the Lady yet Sir John can have but the profits thereof being but 300 l. per annum and not that clear which is not able to pay half the use of the Money 6. Besides before any Sute began the said Mannor of Barn-Elms was for valuable consideration of Money lent Mortgaged and now resteth forfeited for Non-payment of 2000 l. In the Index of Sir Julius Caesar's Manuscript of Collections Fol. 280. is under his own Hand referr'd to in which Folio is contain'd as followeth The Book is markt on the outside A. A. 10. 'T is in the Index writ with his own Hand in relation to Fol. 280. Whether an English Jurisdiction may disanull a Marriage solemniz'd in Scotland A. B. a Scotchman in a Parish Church in Scotland publickly in the presence of the Congregation solemnizeth Marriage with a Scotchwoman About six or seven years after the said Marriage the Scottish Woman pretending that at the time of her Marriage she was but Ten years Old or at the least under Twelve before certain competent Judges in Scotland procureth a sentence of Divorce to be given against the said A. B. whereby the Marriage between A. B. and her was pronounced to be void and of no force and that she was at liberty to Marry again to any other upon this ground That she was under Twelve years of Age at the time of her Marriage and that she never consented thereto after she was Twelve years Old nor had Carnal knowledge of the said A. B. from which Sentence no appeal or provocation was made Afterwards the said A. B. coming into England did solemnize Marriage with an English Woman the Scottish Wife being then living after which marriage the said A. B. and the English Woman for certain years Co-habited together here in England as Man and Wife the said English Woman being ignorant of the premisses done in Scotland During the time of which her Co-habitation with the said A. B. the Scottish Woman dieth After whose death the English Woman being certified that A. B. had another Wife living when he married her so as he could not be her lawful Husband at the time of her Marriage the said A. B. and she dwelling both in England she refraineth from the company of A. B. and complaineth to the Ecclesiastical Judges in England having Jurisdiction in the place where the said A. B. and she dwelleth and craving Justice offereth to prove that the said A. B. and the said Scottish Woman were lawfull Man and Wife and after the said Marriage had Carnal knowledge of each other and that they Co habited together as Man and Wife five or six years after she was Twelve years of Age admitting she had been under that Age at the time of the Marriage and desireth to be admitted judicially according to the ordinary course of Law to alledge and prove her aforesaid Assertions before the said Judge and upon proof thereof to
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 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
doubt not will be faithful in his Promises this secures me against such Fears and makes me willing to believe that the impious Popish Principles shall never be put in Execution in England Dirum omen qui solus potest averruncet Deus And because in these Times many who would be thought Wits and who by the Vanity and Loosness of their Principles have been tempted to malign the Clergy in general and have made the Priest-craft a Term in vogue it is thought seasonable to stop such Persons in their Career towards Atheism by letting them see from what Forge the virulent Expression of Priest-craft came Nor yet is this late Reverend Bishop's Testimony given in his Letter against the Rebellion of 41 fit to be conceal'd To … c. My Honoured Friend I Received yours and return what is most due for that and many more Civilities my hearty Thanks News here we have none and so I cannot requite your Kindness by sending you what you so kindly send me Intelligence You have seen I believe Machiavel's Works translated out of Italian or Latine in English which came out the last Year 1675. The Printer in the second Page says it was Licensed but tells us not by whom In the end of it there is a Machiavel's so 't is pretended in Vindication of his Writings That Letter indeavours two things 1. To magnify Democracy as the best Government and decry Monarchy 2. To decry the Clergy in general not only those of Rome as a sort of People so far from holy that they have nothing left of Integrity or Humanity He tells us of an execrable innate ill Quality inseparable from the Priest-craft and the Conjuration or Spell of their newnvented Ordination and would have them rooted out so as not one Sibra were left c. When t was printed by whose Authority or Advice I know not a considerable Piece one whole Leaf in Folio was left out which I have in MS. and do here enclosed send you a Copy of it The business of that Piece which is left out is to tell us what is not Rebellion so he pretends and if his Principles be true we have had no Rebellion in England this 40 Years My humble Service to your Neighbour and my honoured Friend I am in extreme haste and Q. Coll. Oxon. May 11 1676. Your affectionate Friend and Servant Tho. Lincolne Omitted out of Machiavel's Letter in Vindication of himself and his Writings between pag. 4 5. NOW having gone thus far in the Description of Rebellion I think my self obliged to tell you what I conceive not to be Rebellion Whosoever then takes up Arms to maintain the Politick Constitution or Government of his Country in the Condition it then is I mean to defend it from being changed or invaded by the Craft or Force of any Man altho it be in the Prince or Chief Magistrate himself Provided that such taking up of Arms be commanded or authorized by those who are by the Orders of that Government legally intrusted with the Custody of the Liberty of the People and Foundation of the Government this I hold to be so far from Rebellion that I believe it laudable nay the Duty of every Member of such Common wealth for he who fights to support and defend the Government he was born and lives under cannot deserve the odious Name of Rebel but he who endeavours to destroy it If this be not granted it will be in vain to frame any mixt Monarchies in the World yet such is at this Day the happy Form under which almost all Europe lives as the People of France Spain Germany Poland Sweedland Denmark c. wherein the Prince hath his Share and the People theirs which last if they had no means of recovering their Rights if taken from them or defending them if invaded would be in the same Estate as if they had no Title to them but lived under the Empire of Turkey or of Muscovy And since they have no other Remedy but by Arms and that it would be of ill consequence to make every private Man judg when the Rights of the People to which they have as lawful a Claim as the Prince to his are invaded which would be apt to produce frequent and sometimes causless Tumults therefore it hath been the great Wisdom of the Founders of such Monarchies to appoint Guardians to their Liberty which if it be not otherwise express'd is and ought to be understood to reside in the Estates of the Country which for that reason as also to exercise their Share in the Soveraignty as making Laws levying Monies are frequently assembled in all these Regions in Europe before mentioned These are to assert and mantain the Orders of the Government and the Laws Establish'd if it cannot be done otherwise to arm the People to defend and repel the Force that is upon them Nay the Government of Arragon goes farther and because in the Intervals of the Estates or Courts many Accidents may intervene to the prejudice of their Rights or Fueros as they call them they have during the Intermission appointed a Magistrate called Justitia who is by the Law and Constitution of that Kingdom to assemble the whole People to his Banner whenever such Rights are incroach'd upon who are not only justified by the Laws for such coming together but are severely punishable in case of Refusal So that there is no question but that if the Kings of Arragon at this day very powerful by the Addition of the Kingdom of Naples and of Sicily and the Union of Castile should in time to come invade their Kingdom of Arragon with the Forces of their new Dominions and endeavour to take from them the Rights and Priviledges they enjoy lawfully by their Constitution there is no question I say but they may tho their King be there in Person against them assemble under their Justitia and defend their Liberties with as much Justice as if they were invaded by the French or by the Turk for it were absurd to think since the People may be legally assembled to apprehend Robbers nay to deliver a Possession forcibly detained against the Sentence of some Inferiour Court that they may and ought not to bestir themselves to keep in Being and preserve that Government which maintains them in possession of their Liberty and Property and defends their Lives too from being Arbitrarily taken away But I know this clear Truth receives Opposition in this unreasonable and corrupt Age when Men are more prone to flatter the Lusts of Princes than formerly and the Favourites are more impatient to hear the Impartiality of Laws than the Sons of Brutus were who complained Leges esse surdas that is though they were fine Gentlemen in favour with the Ladies and Ministers of the King's Pleasure yet they could not Oppress Drink Whore nor Kill the Officers of Justice in the Streets returning from their Night-Revels but the Execution of the Laws would reach them as well as