irrationality of their Worship and Pretences for it and the Odium that lies upon them universally as being hateful to the Christian World because they are a dispersed and vagabond People Slaves where-ever they come obnoxious to the Will of those Princes and States in whose Territories they live and so want all those temporal advantages which might allure Proselytes having no Jurisdiction or Authority any where to Protect themselves much less others who shall desert their own Profession to embrace theirs So that in all likelihood considering the Evidence of Truth and the very many Advantages which the Professors of Christianity have above that of Judaism by the Readmission of the Jews the cohabitation and conversation amongst Christians they may be sooner converted to Christianity God blessing the means than Christians seduced into Judaism And something we have to this purpose in Sacred and Prophane Story In the time of Queen Esther the Jews by her means had infinite Honour and Priviledges in the Persian Monarchy gained for them by her of Ahassuerus Darius Hystaspis was the Man her Husband Adeo ut musti ex populis terrae facti sunt Judaei saith the Text and the Reason is rendered Quoniam pavor Judaeorum super eos erat It was their great Priviledge and secular Advantages which made many turn Jews But now as their Religion is absolutely out of Date and their Misery more so the Fear that any should turn to them is less Nor do I find that when that Jewish Common-wealth was in its Glory they compelled any to be of their Religion no not those who lived amongst them and were uncircumcised for such did live quietly and were permitted so to do amongst them Nor only so but they were very scrupulous in admitting those Proselytes which did voluntarily come unto them As will fully appear by a large Discourse of Mr. Selden's to that purpose And though we find in Josephus that Johannes Hyrcanus commanded the whole Nation of the Idumeans to be circumcised yet that was because they were of the Seed of Abraham and so as his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and Posterity bound to be circumcised Whence it is that even Strabo Stephanus and Ammonius do reckon them for Jews But if it should be otherwise with the Jews now if they should be sollicitous and busie to seduce any to their Religion the Prudence of the State may by the Capitulations of their Admission tye them to the contrary and make such Seduction if voluntarily attempted by them a Forfeiture for their Priviledges and so secure the Publick as to that particular 3. Scandalum For the third thing which might make the admission of the Jews unlawful to wit Scandal I conceive the case will be more plain than the former For though I know not what Scandal some may take who are hardly pleased with any thing the Publick Magistrates do which suits not with their ends and interest yet I do not see any colourable Reason why the Readmission of the Jews into this Nation should by any sober and intelligent Person be thought Scandalous Scandalum datum I mean or be a ground of just Offence to any And that this may appear I reason thus If the supreme Magistrate by readmiting the Jews give a just ground of Scandal then it is either to Foreign States abroad or their own Subjects at home but neither of both can rationally be said 1. Not to Foreign States abroad for there neither is nor hardly ever was any Kingdom or State in Christendom which sometime or other hath not admitted them Sure I am most do now and certainly such States have no just Reason nor can have to condemn us for that which they do themselves 2. Not to their own Subjects at home and that this may more distinctly appear I consider 1. That in relation to humane actions to be done or not to be done by us all things in the World are and of necessity must be ranked in one of these three Particulars 1. Some things are absolutely good 2. Some are absolutely bad 3. Some are Res mediae and indifferent 1. Things absolutely good are such as are Sub praecepto divino affirmativo naturali vel positivo and these of necessity necessitas praecepti is meant must be done and without sin cannot be left undone by any Man in the World no one rational individuum excepted For I speak not of Children or natural Fools who want the use of Reason if they be juris naturalis nor if they be juris positivi can they without sin be left undone by any Man to whom that positive divine Law is sufficiently reveal'd Now I take it for manifest and a truth which I believe will be granted by all sober Men that neither the admission or exclusion of the Jews is absolutely good or sub praecepto divino affirmativo naturali vel positivo For 1. If their admission were a thing absolutely good and sub praecepto divino then all those who admit them not and much more they who eject them would be found guilty of a manifest violation of the Law of God which no Man ever said nor with any congruity of Reason can say 2. If their exclusion were absolutely good and sub praecepto divino then all those who have admitted them and the Christian Churches in all ages even those of the Apostles themselves have done so will be found guilty of a great sin and manifest transgression of the Law of God and then the primitive Christians and the Apostles themselves must of necessity be guilty of this Crime which neither is nor can justly be affirmed 2. Things absolutely bad are such as are sub praecepto Dei negativo naturali vel positivo forbidden by God and and so absolutely unlawful for us and that the admission of the Jews into this or any other Christian Common-wealth should be thus unlawful and so malum per se I believe is not and I am sure cannot with any congruity be asserted 1. Because there appears no Law of God natural or positive against such admission he that thinks otherwise let him shew it 2. If admission of the Jews into a Christian Common-wealth if cohabitation and an outward and civil conversation with them had been an evil of this high nature then as is before said the primitive Christians and Apostles nay our blessed Saviour himself which is impious to think had been guilty of it who all their lives permitted and practise such communion and outward conversation with the unconverted Jews 3. Well then let the admission and exclusion of the Jews be as most manifestly they are amongst the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Res mediae those things we call indifferent and in themselves neither morally good or bad but such as may be either according as they are cloathed with several circumstances Then I say if the supreme Magistrate who is trusted with the managing of publick affairs think it fit to
Positive Law that all the seed of Abraham should be Circumcised the eighth day on pain of being cut off from his People And yet the Obligation of that Divine Positive Law ceased for forty years while they wander'd in the Wilderness and yet Moses their Supreme Power did neither Punish according to the Letter of the Law nor blame them for it 2. It was a Divine Positive Law that they should keep the Passover on the Fourteenth day of the first Moneth and yet there were several Cases wherein the Obligation of that Law ceased so that they did not sin though they did not that day eat the Passover For if any one was casually unclean by touching a dead body or if he were on a journey c. the Obligation of that Law ceased as to him and he sin'd not though he did not eat the Passover on the day appointed by the Law 3. The Sanctification of the Sabbath as to that particular day was injoyn'd by a Divine Positive Law and by that Law it was capital to violate the Sabbath or do any of our own Work the Worship of God Almighty being the proper and only work of that day And yet it is certain and on all sides confess'd that in many Cases the Obligation of that Law ceaseth so that we may lawfully do that which otherwise to the Jews was Capital If an Enemy invade our Country or a City be set on fire on the Sabbath or our Lord's day we may lawfully take Arms to defend our Country and the Church and Divine Service left make haste and labour hard to quench the fire and save the City Now as to the aforementioned Divine Positive Laws there may be many Cases wherein their Obligation ceases so that the Punishment otherwise required by those Laws may lawfully be pardoned So in this Law given to Noah there have been and may be several Cases wherein that Law does not bind ad Poenam and so the Murderer may lawfully be pardon'd 3. And it is further to be consider'd that this Law de Homicidio given to Noah does neither expressly say nor by any good consequence intimate that the Supreme Power shall not in any Case pardon a condemn'd Murderer It only declares death to be the just reward and punishment of Murder but it does not say that it must necessarily be always executed so that no Pardon in no case is to be admitted 4. And it is certain and in our present case more considerable That Jacobs two Sons Simeon and Levi were guilty of Murder and yet were pardon'd notwithstanding the Law given to Noah Sure it is that they were neither sentenc'd nor put to death for their Murders but long after went down into Egypt with Jacob their Father and died there Though they had impiously and abundantly shed Man's blood yet their blood was not shed for it Tho Jacob their Father and Isaac who was then living were the Supreme Powers in the then Church of God consisting in the seed of Abraham and had power to do it Nor could those Patriarchs Isaac and Jacob be ignorant of the Law given to Noah seeing Noah himself lived till the fifty seventh year of Abraham and died only forty three years before Isaac's birth Now considering the persons of these two great Patriarchs that they were Prophets men of exceeding Piety and beloved of God we may be sure they would not have transgressed that Law given by God to Noah if they had believed that the Obligation of it was such as excluded all possibility of Pardon In short if those pious Patriarchs might pardon Murder then I desire to know why Supreme Princes in some cases may not pardon it now 5. Lastly I ask Did that Law given to Noah bind David and the Jews in his time or did it not If not how comes it to bind us now above 2700 years after David's death If it did bind David then so as no pardon was to be permitted or granted to a Murderer it is not probable that David a Prophet and the best of Kings would have transgress'd that Divine Law and pardon'd Absolom Especially if we consider that his other known sins as Murder Adultery Numbring the People c. are confess'd by him and in Scripture mentioned as his sins but his pardoning Absolom is no where in Scripture confess'd by him or laid to his charge as a transgression of any Law Sed manum de Tabula I desire you to ask those who made the former Objection against the King's power of pardoning Murder from the Law given to Noah and think the Laws given to Noah still Obligatory How it comes to pass that in the same place the first Law given to Noah is a Prohibition to eat any Blood which is confirm'd by Moses and no where abrogated And yet all Papists and Protestants eat Blood notwithstanding that Law of God to Noah forbidding it I desire to know of the Gentleman who made the Objection which I hope I have probably answer'd why the second Law given to Noah Gen. 9. 6. about Murder should be binding and yet the first Law Gen. 9. 4. against eating Blood should not be binding too He who can and will solve me this doubt will do me a kindness which if any few can I am Your Faithful Friend and Servant T. L. THE CASE OF Pardoning Murder The CASE of Pardoning MURDER Query Whether it be lawful for his Sacred Majesty to Reprive or Pardon a Person convict and legally condemned for Murder My Honoured Friend ALthough I well know your Loyalty to be as much and your Learning and Knowledg of the Laws and their Obligation to be more than mine yet according to your command and my promise I have here sent you a Compendium and short Account of some Discourses I lately had with some who seem'd to doubt Whether our Gracious Soveraign could reprive or pardon a person legally condemned for Murder For a distinct answer to this Query I consider 1. That it is certain that all we Subjects are by the indispensable law of God and Nature bound next to our good God the great King of Heaven and Earth to honour and obey our Gracious Soveraign and that not only for fear of punishment but for Conscience lake So that to do or speak or think dishonourably of the Lord Anointed our King and to question and deny any of the Rights of his Crown and Prerogatives is in all Subjects disloyal and impious In the Natural Body if there be any blemish or disease in the head if it be in any danger from without all the members of the body the dictates of Right Reason and the principles of Nature requiring it will industriously concur to cover and conceal that blemish to cure that disease and prevent all danger that may happen to the Head So in the Body Politick if the King the Head of that Body have any errors or
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
Jus Gladii Nor is there any Law in the Gospel which so much as mentions much less prohibits the Civil Supreme Magistrate to pardon condemn'd Malefactors 2. For the Mosaical Laws Ceremonial and Judicial they were such as were given by God himself for the good Government of the Jewish Common-wealth Now concerning these Laws it is certain 1. That they were given only to the Jews as is confess'd and fully proved by the Schoolmen and Casuists 2. It is certain that no positive Law Divine or humane does or can bind any save those to whom it is given and sufficiently promulgated and made known A sufficient Promulgation is absolutely necessary to the Obligation of any positive Law 3. And hence it follows that those Mosaical Laws never bound the Gentiles before our blessed Saviour's time much less Christians since as will anon appear And therefore if that Law in Numb 35. 31. but now mention'd or any other Mosaical Law had absolutely forbid and made the pardoning of Murder unlawful to the Jews yet it will not hence follow that it should be by that Law unlawful for Gentiles or Christians to pardon it seeing it is manifest that those Mosaical Laws were never given to nor any way obliged them For the Transgression of any Law does necessarily presuppose its Obligation It being impossible I should transgress a Law which never bound me to Obedience 4. The obligation of the Ceremonial Laws ceased even to the Jews to whom they were given at the death of our Blessed Saviour They were Types and Shadows of his Death and our Redemption by him and when the Substance and thing typified by them was come the Shadows ceased Whence it is that Divines both Ancient and Modern truly say That at our Blessed Saviours Death the Jewish Ceremonial Law was Mortua as to its obligation it was abrogated and the observation of it not necessary tho for some time to gain the Jews even the Apostles did voluntarily observe it But when the Gospel was more fully published it became Mortifera and the observation of it inconsistent with the Gospel 5. For the Judicial Law of the Jews it is certain that the Obligation of it ceas'd at least at the destruction of Jerusalem when the Jewish Government and their Commonwealth was utterly destroy'd 6. And hence it evidently follows that all those Mosaical Laws Judicial and Ceremonial have been abrogated and null and have neither bound Jew or Gentile above this 1600 years last past and therefore it is impossible that any of them should now bind any Christian Supreme Power not to pardon any condemned malefactor And what is said of the Judicial and Ceremonial Laws given to the Jews by Moses that none of them ever did or could bind any Gentiles or Christians the same we say of the Moral Law as to punishing or pardoning Murderers that it never prohibited Supreme Princes to reprive or pardon any person condemned for Murder That this may appear it must be considered that there are two Editions of the Moral Law both writ by the Omnipotent and Gracious Author of it by God himself 1. In the heart of Adam where it was most intirely and perfectly writ His Understanding being clear and abundantly able to know and distinguish good from evil quid faciendum quid fugiendum and his will obsequious to follow those dictates of right Reason But by the fall of Adam this Writing and perfect Edition of the Moral Law was much blotted corrupted and defac'd both in Adam and all his Posterity For although the substance of that Law did after the fall continue writ in their nearts yet so defac'd by the Fall that ignorance having blinded the Under standing it was in many places not legible nor sin having corrupted the will practicable 2. The second Edition of the Moral Law in respect of the writing of it which remain'd in the hearts of men after the fall was multo auctior emendatior And this Edition of the Moral Law is that which God by Moses gave only to his own Church and People the Jews In which he gave them 1. A just and perfect Compendium of that whole Law in two Tables of Stone containing Ten Precepts 2. A full and more perfect explication of those Precepts and the particular duties required by them 3. An addition of many Gracious promises and blessings to those who sincerely observ'd those Laws and many threats and punishments for those who transgress'd any of those Laws This Edition of the Moral Law with the many promises and punishments annext was as I said given only to the Jews not to the Gentiles And this appears by that memorable passage in St. Paul wherein he tells the Romans in these words The Gentiles which HAVE NOT THE LAW do BY NATURE These HAVING NOT THE LAW are a law to themselves which shews the work of the Law WRITTEN IN THEIR HEARTS In which words we have the two Editions of the Moral Law afore mentioned expresly set down and that the Gentiles had only the first Edition and that the second and more perfect Edition was given only to the Jews For the Apostle says 1. That the Gentiles HAD NOT THE LAW to wit as it was Lex scripta in Lapide and given to the Jews with the Addition of many Promises and many several punishments annext to the transgressions of particular Precepts 2. That the Gentiles HAD THE LAW writ IN CORDE for so all men by nature had it And 't is the Moral Law he means for no positive Law of God or man is by nature writ in any mans heart Now what is said in the second and more perfect Edition of the Moral Law as it was given by Moses only to the Jews is either 1. De Officiis 2. Or de poenis promissis I. De Officiis quid faciendum aut fugiendum What good we are to do in obedience to the Affirmative Precepts As in that Remember the Sabbath-day to keep it holy Honour thy Father and Mother c. And what evil we are to avoid in obedience to the Negative Precepts such as these Thou shalt not kill Thou shalt not commit Adultery c. In short the sum of all those Duties which the Moral Law requires of us is this That we love God with all our heart and our neighbour as our selves Now as to all these duties the obligation of the Moral Law is Universal Eternal and Indispensable It binds all men Jews and Gentiles and that indispensably 2. De promissis poenis concerning the Promises and punishments which are annext to the Moral Law as it was given to the Jews by Moses And here I. For the Promises it is certain that they were given only to the Jews For the Apostle expresly tells us That the Gentiles were aliens and strangers to the promises For instance the promise added to the fifth Commandment Honour thy Father and thy Mother that thy days may be long in the land
Common-weales at least of which we have any story left giving Toleration to the Jews notwithstanding their Infidelity and Non-submission to the Gospel and yet never tolerated them or any else in any Sins against the Law of Nature So that they might disbelieve the Gospel impunè and without Punishment but if they were guilty of Blasphemy Idolatry Adultery Homicide Theft or any other sins against the Light and Law of Nature the Laws did as severely vindicate these Sins in them as any other Subjects 2. De jure that rationally and upon good grounds of Justice it might be so this is a harder Business and of that Difficulty that I find not one of those Casuists or other Writers who have writ of this Subject so much as offer at a Reason of it that is All Christian Common-weals have ever severely and indispensably punished Sins against the Law of Nature and yet even then tolerated Infidelity and other Sins against the Law of Scripture Now I conceive that the fundamental Reason of this Difference as to the Vindication of some and Toleration of other some Sins must be taken from the nature of the Sins so vindicated or tolerated for 1. Sins against the Law of Nature are evident and manifestly such and cannot possibly admit of any Apology in any Persons who have the use of Reason for in Children and Ideots the Case is otherwise It is a manifest Truth and a received Principle both amongst Philosophers and Lawyers That Ignorantia Juris Naturalis non excusat a peccato So that if Titius commits Murder Adultery or Idolatry c. we are sure he is a Sinner and the Magistrate may safely punish him for it seeing there is no possibility of any pretence whereby he may render himself excusable either from the Sin or suffering for it 2. But then Secondly for those Sins against the positive Evangelical Law the Case is much otherwise for 1. No positive Law of God or Man brings or can bring a just Obligation upon us till it have a sufficient Promulgation 2. The sufficiency of such Promulgation is not easily known for that may be sufficient Promulgation to one which is not to another according to the different measure of Parts and Abilities in those to whom it is promulged For those to whom God hath given a larger measure of Understanding and Learning may sooner come unless they be wilfully obstinate to a Knowledge of the Truth of the Gospel and of those Reasons which may convince them of it and then an Obligation comes upon them to believe accordingly and if they do not they sin whereas others of no Learning and less natural Abilities may innocently disbelieve till further means proportionable to their Capacities be used for their Conviction Now this Difficulty of knowing when the Promulgation is sufficient and consequently when Infidelity is a Sin for till this time 't is a Calamity not a Crime should make Magistrates very cautious not to precipitate the Punishment of such misbelieving Persons For seeing in all such Punishments there should be Congnitio culpae before there can be Inflictio Paenae he that punisheth before he be certain that the Person so punished is guilty of the Crime doth an Act that may be just but certainly he is not just in doing it 3. But that which adds more Difficulty yet is this That no Promulgation of any positive Law is sufficient till the Persons be convinced to whom it is promulged unless through their own Perverseness for Ends and Interest they willfully hinder such Conviction Now whether the Infidelity of the Jews arise from the Perversity of their own Wills or from their Infirmity and Want of sufficient Preaching and Promulgation it is very hard if not impossible for any Magistrate to know and till it be known they cannot be justly punished for their Infidelity which neither is nor can be Sin in them nor any body else till after sufficient Promulgation they wilfully reject the Gospel Now this great Difficulty and almost Impossibility to know when they willfully and so criminally reject the Gospel makes it very difficult proportionably and almost impossible for any Magistrate justly to punish them for such Rejection 4. We commonly say and there is much Truth in it if rightly understood that the Mysteries of the Gospel are such as cannot be understood and assented to without the special Assistance of the blessed Spirit of God So that those who want this Assistance or such a measure of it as may be sufficient to overcome all opposed Difficulties cannot possibly believe and then it will be very questionable whether Infidelity in such be a Sin it not being in their Power without such Assistance to believe This in Scripture is called the opening of the heart So when Saint Paul Preach'd Lydia believes others did not and the Reason is given in the Text God opened the heart of Lydia so that she attended to those things spoken by Paul Now as the opening of her heart was no Merit or Act of Virtue in her it being the Work of God upon her Soul and the only passive in that particular So the not believing of others whose hearts he was not pleased to open might possibly at least for some time till they had heard him further and seen his Miracles be no Sin in them However it will be sure enough that seeing no humane Magistrate can know whether the Jews now have such Assistance or what Measure of it they have it will be hard for them to punish least in so doing they may punish them for not doing that which is impossible for them to do which with what Justice or Warrant from God's Word they can do I know not And here I shall transcribe a Passage in Grotius casually by me but happily met with if I mistake not very pertinent to this purpose Doctrina Evangelii ab his quinunc eam audiunt penitùs in animum admitti nequeat nisi Secretis Dei Auxiliis accedentibus quae sicut quibus dantur non dantur in operis alicujus mercedem ita si quibus negantur aut minùs largè concedantur id fit ob causas non iniquas illas quidem sed plerúmque nobis incognitas ac proinde humano judicio non Punibiles And then he adds many things out of Scripture and Antiquity to the same purpose That neither Jews nor any body else is by Punishment to be compell'd to a Belief of the Gospel that 's a Turkish slavish means which may befit Mahomet to promote the Alcoran but certainly contradictory to the Laws of Christ and the Meekness of Gospel Dispensations By what hath been said I believe it may appear in part that the Toleration of the Jews in this or any Christian Common-weal is not in it self unlawful either in ratione inhonesti incommodi or Scandali but that as de facto they have been ever tolerated in Christian States so de jure they may still So then the Readmission
which the Lord thy God GIVETH THEE Canaan is the Land promised and given to the Jews only not to the Gentiles nor ever intended for them it being indeed impossible that all Jews and Gentiles should live in that little Land But to pass by the promises which do not so properly belong to our present business I say 2. That it is as certain that all the Mosaical Laws de Poenis are not natural but Positive and Judicial Laws which never bound any save the Jews or those who became Proselytes and voluntarily submitted to them to whom only they were given That this may further and more distinctly appear it is to be confidered as certain and consessed I. That the Law of Nature as all just Laws do binds all men 1. Ad Obedientiam to a willing and perfect Obedience And 2. upon supposition of sin ad Poenam But the Punishment to which the Law of Nature binds is Death and that Eternal Death For as in Adam by reason of sin all die so they had died eternally had not God most graciously sent his Son to redeem them from that death Every sin how small soever by the Covenant of Works of which the Moral Law was the condition on mans part to be perform'd was a capital crime and Death the Wages or punishment by that law due to it But those many various laws de Poenis which occur in the Mosaical law which he gave to the Jews are not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 non leges nobiscum nataE in cord naturalitere inscriptae not Natural laws writ in our hearts and born with us But they are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ‑ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 leges à Deo datae positive Laws which neither do nor ever did bind any but the Jews As may appear 2. Because they were given only to the Jews and that after they came out of Egypt which was after the Fall of Adam above 2450 years But those Mosaical Laws de Poenis of which we speak were never given nor publish'd to the Gentiles But had those Laws de Poenis been Natural Laws as the Precepts in the Decalogue are they would have bound all mankind from the Creation to this day and that indispensably and then all Christians should be bound to obey and practise those Penal laws and punish all Malefactors with such punishments only as in those laws are appointed which is evidently untrue as may appear 3. By the judgment and consent of the Christian World for no Christian Church or State did ever think themselves bound to observe those Mosaical Poenal Laws and to punish transgressors of the Divine Law with those punishments which are prescribed by Moses For instance That the stealing of a Sheep should be punish'd with restitutio in quadruplum with restoring four sheep for one if the thief had sold or kill'd the sheep he stole but if the sheep was found in his hand who stole it he was only to restore two sheep for one That the stealer of an Ox should restore five Oxen. That he who curseth or who smiteth his father or mother or will not obey them should be punished with death and stoned with stones That to do any of our own work so much only as to gather a few sticks on the Sabbath day should be capital and the offender in any one of these things surely put to death although these and such other Laws de Poenis were Divine given to the Jews by Moses and obliged them yet no Christian Church or State did ever think themselves obliged to the observation and practice of them And they had good ground in the Gospels to think so For 4. Our Blessed Saviour in his Sermon on the Mount explains and confirms all the Moral Laws de Officiis yet those severe Mosaical Laws de Poenis he did not confirm But expresly declares that legal severity to be inconsistent with the Charity of the Gospel For though by the Mosaical law a Jew might justly require and the Judge give an eye for an eye and a tooth for a tooth yet our Blessed Saviour expresly declares against such legal severity You have heard saith he it has been said in the Law of Moses an eye for an eye and a tooth for a tooth But I say unto you Resist not evil c He does not allow that severity in poenis in the Gospel which Moses allow'd the Jews under the Law and therefore we may be sure that it was not any Moral or Natural Law which required those punishments appointed for several sins in the Law of Moses for then they had been unalterable nor would our Blessed Saviour have contradicted them but it was the positive law of Moses which required them of the Jews to whom only these Laws were given and obligatory And here for further evidence of this truth it is to be considered 1. That in that Mosaical Law which is ignorantly or maliciously urged to prove that our Gracious Soveraign cannot pardon murder the strictest binding words are these The Murderer SHALL SURELY BE PUT TO DEATH Therefore say they he cannot be pardon'd They who reason thus did not well consider the consequence of such arguing from the Penal Laws in Moses For if this argument be good Moses says The Murderer shall surely be put to death Ergo He cannot be pardon'd Then this grounded on the same law of Moses will be every way as good and concluding The same Moses says Whosoever doth ANY work on the Sabbath-day he shall SURELY be put to death Ergo He cannot be pardon'd If such Logick were good it would conclude all men to be unpardonably guilty of death seeing I believe there is no man who on some Lords-day has not done some work and therefore by such Logick as this must be unpardonably guilty of death But enough of this for indeed such arguments do not deserve any serious answer or confufutation Sure I am that never any Christian Church or State did or had any reason to believe That the severe Jewish Law for the observation of the Sabbath did oblige Christians and therefore there neither is nor can be any more reason why their severe Law against Murder should be now obligatory to Gentiles or Christians to whom it was never given 2. When the Law says The Murderer shall SURELY die our best Commentators out of the Rabbins say that this is spoken to the Judges before whom such Causes regularly came Now those Judges in the Jewish Commonwealth were appointed by the Supreme Power and by his Authority judged and determined Causes under him Admit then that the Judges who were Magistrates Subordinate to the Supreme Power were to take no satisfaction for the life of a Murderer but were by that Law oblig'd to condemn and execute him yet it does not hence follow that the Supreme Power who made them Judges might
not in some cases reprive or pardon some whom they had condemn'd Sure I am that David the best of Kings who knew the Jewish Laws as well as any did reprive Joab who had murder'd Amasa and Abner and delay'd the execution of the Law and left it to Solomon his Son who did accordingly put Joab to death 2. And as David reprived Joab so he pardon'd Absolon who had slain his Brother Amnon Nor does the Scripture any where impute the reprive of Joab or the pardon of Absolon to David as crimes or transgressions of the Law of Moses but rather declares him innocent when it is expressy said That David did that which was right in the eyes of the Lord and turned not aside from ANY THING that he commanded him ALL THE DAYS OF HIS LIFE save ONLY in the matter of Uriah the Hittite Now if notwithstanding those Mosaical Penal Laws it was lawful for David the Supreme Power amongst the Jews to whom those Penal Laws were given and they bound to the observation of them I say if David might lawfully Reprive and Pardon Murderers how can it by those very Laws be unlawful for the Christian Supreme Power and Gentiles to whom those Laws were never given nor they ever under the obligation of them to reprive or pardon such condemned malefactors In short the sum of what I have said endeavour'd to prove and believe to be true is this 1. That there is no Law of God or Man which does prohibit and so make it unlawful for Supreme Princes to grant such Reprives and Pardons 2. That the end of all Penal Laws and of their due Execution is that the honour of our great and most Gracious God and his true Worship and Religion be preserved and Ne quid detrimenti capiat Respublica that the Commonwealth be not damnify'd by too usual and frequent granting pardons For too great Impunity will occasion and encourage Impiety 3. That all loyal and faithful subjects are bound and have good reason to believe that his Sacred Majesty as he is Gods immediate Vicegerent Defender of the Faith and whose greatest Interest it is to promote those good ends so he will carefully endeavour by a due Execution of our good Laws to attain those ends 4. That such Cases heretofore have and may again happen wherein the time persons and all other Circumstances duly consider'd a Reprive may not only be lawful but necessary And wherein a Pardon may conduce every way as much and possibly in some Cases more for attaining the good ends of Penal Laws as a perpetual severe and rigorous execution of them And of such Cases the King is the Supreme and sole Judge who if need be may call for and have The advice and counsel of any of his Subjects of whose prudence and piety he is well assur'd This is the sum and substance of what I have said at several times to several persons to confirm them in the belief and incourage them to a just vindication of His Majesties Legal Rights and undoubted Prerogative And what I have done in this was a duty I did owe to my Gracious Soveraign not only by common Allegiance as he is my King but in gratitude as to my Patron whose undeserved favour and goodness has plac'd me in the good Station wherein I am And therefore that God Almighty would be graciously pleased to bless and preserve his Anointed from all the impious Plots and Conspiracies of all His enemies give Him a long and peaceable possession of a Temporal Crown here and an Eternal Crown of Glory hereafter is and shall while I live be the Prayer of Buckden Jan. 20. 1684. Your Affectionate Friend and Servant T. LINCOLN Mr. Cottington's Case CONCERNING The Validity or Nullity of his Marriage with Gallina her former Husband then living Anno. 1671. Mr. Cottington's Case A DOUBT OR Case of Conscience PROPOSED CASE THE FIRST 1. GAllina Marries Patrimoniale Anno. 1664. Lives and Cohabites with him as his Wife a year and a half has a Child by him a Daughter And all this while voluntarily gives him Reverence and due Benevolence Sine protestatione aut Querelâ without any protestation or complaint of any Nullity or Illegallity of the Matrimonial Contract by reason of any Antecedent Force or Fear to make her consent and plighted troth Involuntary never endeavours to recede and make an Escape from him when she was in Loco Tuto and had opportunity to make such Protestation or recess with safety 2. After this Anno. 1666. The Archbishop of Turine by sentence given pronounces the said Marriage Void and Null by reason of Force and Fear into which her Father put her which rendred Gallina's consent involuntary as was supposed and contrary to the nature of a Conjugall Consent which Jure Naturae ought to be free and spontaneous otherwise it will not be Obligatory 3. After this Anno. 1671 The said Gallina Marries Mr. Cottington her former Husband then Living and who is yet alive and at Law and in the Court of the Arches claims him for her Husband 4. The Court Sententiâ latâ Determines and Declares that Mr. Cottington and Gallina are lawfully Husband and Wife without taking notice of the Archbishop of Turin's Sentence whether it was valid or void and injoyn'd them to Co-habit 2. This is the Case and the Query is Whether Mr. Cottington after a just and serious consideration of the Premises may acknowledge take and use Gallina as a lawful Wife without Sin and so with a safe Conscience and without Danger or Fear of offending God with security to his Soul 3. This is the Case of Conscience in which my Opinion is desired which how insignificant soever it may prove yet in Obedience to the commands of that Excellent and Noble Person who requires it and Charity and Satisfaction to the doubting Gentleman and discharge of my own Duty as a Minister I shall willingly give it and plainly set down what at present I conceive truth in the Case and the reasons why I do so The Premises then as before set down being supposed true and as to matter of Fact granted with submission to the better Judgments of persons of greater Knowledg in Divinity the Common Canon and Civil Laws my answer is Negative That Mr. Cottington cannot with a safe Conscience and security from Sin acknowledg take and use Gallina as his lawful Wife And this seems to me not only a Probable but a certain and evident Truth That this may appear I consider 1. That 't is certain and confess'd that the Obligation of the Matrimonial contract is not grounded on any Positive constitution of Man but on the Divine Law of God and Nature For although the contract cannot be made without the positive consent of the Parties yet the consent once pass'd the Obligation to conjugal Duties ariseth immediately from the Law of Nature 2. Hence it is That this Matrimonial contract while the Parties live is
of a Father sufficient to Null the consent and matrimonial contract of his Daughter neither is nor can be pretended Secondly For humane Laws the Civilians and Canonists tell us That the fear of a Father makes not the Marriage or Consent of his Daughter a Nullity Plane metust reverentialis sive obsequium reverentiae Paternae debitum matrimonium non impedit uti nec Consensum No not when the Daughter gives her consent Patre suadente admodum urgente hortante And the law it self tells us That if a Father compell or force his Son to marry a Wife there is the same reason for his Daughter to marry a Husband which otherwise he would not have Married yet the marriage is valid and by reason of that force no Nullity si Filius Patre cogente ducit uxorem quam non duceret si sui arbitrij esset contraxit tamen matrimonium quod inter invitos non contrabitur maluisse hoc videtur So that even according to Human Civil and Canon Laws it is not all Co-action force or fear from a Father which makes the consent of a Daughter in a Matrimonial contract invalid or Nullity and therefore 't is impertinently pretended for such in our present Case 5. I confess the Canonists and Civilians say That fear makes the consent Involuntary and so indces a Nullity Locum non habet consensus ubi metus vel co-actio intercedit c. So saies that Law and the Lawyers consent and say further Quod Matrimonium per metum vel minis contractum deficiente consensu est ipso jure nullum But it is certain first That they do not mean a Reverential Fear a fear of displeasing a Father for the same Men in the same places say That such a fear does not vitiate the consent or make a Nullity Now all the fear pretended by Gallina in our Case was from her Father Secondly If the fear arise from the many and severe Threats of a Father yet this cannot make the consent involuntary and so a Nullity I confess that if a Father should Command and Threaten his Daughter to Marry an impious and unworthy Person the Law will warrant her disobedience for in that Case she is not by Law bound to obey her Father's commands or threatnings But in our Case no such indignity or incapacity of Patrimoniale's person is complain'd of or so much as pretended for a cause why Gallina's consent should be involuntary and the conjugal contract a Nullity Now if this be true and the Law it self says it That tum solum dissentiendi a Patre licentia Filie conceditur cum indignum moribus aut turpem sponsum ei Pater eligat If the Law allow a Daughter to disobey her Father's commands proposing a Huband to her only in such Case then if he chuse and propose a Person better qualified and no way unworthy of her and give his consent and command that she shall marry him as the matter of Fact was in our Case then she is bound to obey him For if it be Lawful for a Daughter to disobey her Father onely when he proposes and unworthy Husband then when he proposes one worthy she is bound to obey him Seeing then the Husband propos'd to Gallina by her Father was no way unworthy of her but she bound upon her Father's consent and command to marry him it follows Thirdly That her actual marrying him upon her Father's command and fear to displease him was an act of filial Obedience and Duty and therefore could not possibly vitiate her consent and make the conjugal contract involuntary invalid and as pretended a Nullity Nay Fourthly 't is certain that a Father hath a just Authority by the Law of God and Nature to consider and judge what is good for his Children and not only to command their Obedience but to use Threats and Menaces yea and Castigations and Whippings too to make them do their Duty and obey his just commands so our Heavenly Father commands us to obey his Laws useth Menaces threatens Death and Damnation if we do not and these Means he has appointed Threatnings as well as Promises to make us willing to do what he commands our Duty And therefore to say that such Paternal Commands and Threatnings whether of our Heavenly or Earthly Parents can be a just ground to make our consents to such commands involuntary which he has ordain'd to make us give a willing and voluntary Obedience is to Blaspheme his infinitely wise Providence and to say that the means which he has appointed to produce a willing and voluntary consent in us to obey his Commands and do our Duty has a necessary and contrary effect and makes them involuntary So that it being granted that Gallina's Father commanded her to marry Patrimoniale and to make her to do it added many and severe Threatnings for fear of which she did and without them would not have done it marry him this may prove that in those circumstances and to avoid her Father's displeasure she willingly made that conjugal contract but neither is not can be any ground to prove that her consent was involuntary and so the contract in valid as is pretended and a Nullity Fifthly And this may further appear that such Actions are not involuntary by the consent of Christendom thus In the Primitive Church and times of Persecution some Christians suffer'd Imprisonment and many Torments for their Religion yet at last for fear of Death threatned by their Pagan Persecutors they offered Incense in the Idol Temple and yet all those Imprisonments Torments and Threatnings of Death did not make that act of theirs Involuntary for then it had not been Sin peccatum utique non est peccatum nisi sit voluntarium and yet the Church and Christian World judg'd it to be a great Sin and Ecclesiastical Punishments and long Penances were imposed on them for it as appears by the for it as appears by the Antient and approved Canons Now if all these Sufferings and Fears of present Death did not make their act of Sacrificing in a Pagan Temple Involuntary then neither will the like if any such had been make Gallina's act of marrying in a Christian Church involuntary nor consequently invalid and a Nullity Sixthly But let it be further granted that Gallina was unden very great force and fear from her Father as is pretended and that that force and fear was of such a Nature and Degree as the Canon and Civil Laws judge sufficient to make a conjugal contract invalid and a Nullity Yet seeing in this case Idem est non esse non apparere till this do legally appear by just proofs no judge can as least none should give sentence for a Nullity nor can Mr. Cottington with any Security Quiet or Peace of Conscience Co-habit with her as with his legal Wife And in this and such other Matrimonial Cases of Nullity and Divorce our
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
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
Maintenance 2. Or only to declare a Nullity of the Matrimonial Contract between Patrimoniale and Gallina For the first If the Archbishop's Sentence was such as required Co-habitation that Mr. Cottington should give due Benevolence and Maintenance to Gallina Then his Sentence was absolutely Null Quia à non judice lata that Archbishop having no Jurisdiction over Mr. Cottington and an usurpation of the just Rights of our King the Supreme and of our Bishops who from and under him have a sub-ordinate Jurisdiction over the Subjects of England and so over Mr. Cottington Sure I am the Archbishop of Turin had no Jurisdiction over Mr. Cottington a subject of the King of England First Not Supreme that 's only in our King as our Laws and Oaths testifie Secondly Not Subordinate for that must be derived from the King who surely never gave the Archbishop of Turin any Jurisdiction over Mr. Cottington or any of his Subjects And therefore if the Archbishop of Turin's Sentence was such our King and Bishops might justly question and censure it for what it was a Nullity and an illegal usurpation of the Rights of the Church of England For the second If the Archbishop of Turin's Sentence was only that the Matrimonial Contract between Patrimoniale and Gallina was a Nullity then I consider First That it is confess'd that Res judicata pro veritate accipitur and the Sentence may be put in Execution Si sententia judicis appellatione nullâ suspensa sit nec ex alia causa potest restaurari But this must be understood in respect of the Parties litigant Facit jus irretractabile inter partes saies the Law and Lawyers And they add Sententia à qua non est appellatum facit jus inter partes etiamsi ab initio fuit injusta Secondly But yet this Rule has several limitations and fallentiae as they call them for Si sententia judicis sit ipso jure nulla contra jus lata tum sine appellatione infringitur non transit in rem judicatam And a good Lawyer with relation to the Laws cited in the Margint tells me His legibus dicitur quod sententia lata contra leges statuta vel constitutiones principum est ipso jure nulla ideo citra appellationem causa de novo in judicium deduci potest And Panormitan sententia pro Matrimonio non transit in rem judicatam cum extat impedimentum lege divinâ vel humanâ super eo non est dispensatum So that it is not every Sentence of a Judge though not suspended by an appeal which passes in rem judicatam no not in the same State or Kingdom and therefore the Archbishop of Turin's Sentence declaring the Matrimonial Contract between Patrimoniale and Gallina to be a Nullity if it be against any Law of God or Man as undeniably it is against both if the grounds on which it was given be such as they have been represented to me is it self Null and to all intents and purposes invalid Thirdly But let the Archbishop's Sentence as to the Nullity be what it will true or false just or unjust yet if it concerns a Subject of England our King and Bishops have good reason and a just power to question and examine it and according to its Validity or Nullity admit or reject it Fourthly And that it does highly concern a Subject of England is evident For although ab Origine it concern'd only Patrimoniale and Gallina two of his own Subjects yet Mr. Cottington having before or since the Sentence I know not married Gallina He is highly concerned to be sure that the Archbishop's Sentence is just and true For if it be not if indeed there be no Nullity in that Contract then what Casuist or Court soever determines and decrees that he shall Co-habit with Gallina as his Wife does ipso facto decree 1. That he shall Co-habit with another Man's Wife 2. That he shall live in continual Adultery 3. That if he have any Children by her they are none of his for is pater est quem nuptioe demonstrant 4. And so in case she out live him he shall not be in a possibility to leave any lawfull Issue to continue his Name and Family to Posterity Fifthly If then the Archbishop's Sentence be untrue if the contract between Patrimoniale and Gallina was Matrimonium ratum and no Nullity then all those sad or sinful consequences will necessarily follow and so not only Mr. Cottington by Co-habiting with another Man's Wife but his Judges too who command such Co-habitation will be guilty of those horrid Impieties For if it be true as undoubtedly it is that the Magistrate who prohibits not Impieties when 't is in his power is himself guilty of them Then much more will he be guilty who expresly commands them And that Magistrate whoever he be who by a judicial Sentence commands Mr. Cottington to Co-habit with another Man's Wife for so she is in case there be no Nullity commands him to commit and continue in Adultery Sixthly It will therefore both in Prudence and Conscience highly concern our Bishops and Ecclesiastical Judges to whom the cognizance of this cause belongs that they be morally sure that the Contract between Patrimoniale and Gallina was indeed a Nullity before they decree and require Mr. Cottington to Co-habit with her It is evidently repugnant to the nature of Justice and the integrity of a just Judge to give a certain damnatory Sentence upon an uncertain and dubious Ground Now 't is absolutely impossible that any Man should be sure of such a Nullity as is declared in the Archbishop's Sentence unless he know the reasons on which that Sentence is grounded and that they are such as efficaciously prove the Nullity And if Mr. Cottington doubt of the Nullity as of necessity he must till by some rational medium it appear and be not sure Gallina is indeed his Wife I am sure he sins if he Co-habit with her seeing he Co-habits with one who for ought he knows is another Man's Wife And then the Rule is certain Quicquid fit reluctante vel dubitante conscientiâ est peccatum Seventhly If it be said That the Archbishop of Turin has by a judicial Sentence declared that Contract to be a Nullity It is confessed but that is no just ground for Mr. Cottington nor any body else to be assured it is so unless the Reasons on which his Sentence is grounded appear to be cogent and sufficient to prove such Nullity That Archbishop and his Assessors neither are nor pretend to be Infallible and the Sentence of a fallible Authority so long as the Reasons of it are unknown is not sufficient to satisfie and quiet a doubting Conscience Our Holy Mother the Church of England has truly told us and all her Sons subscribe it that General Councils may and have actually erred much more may a particular Popish
Consistory I know it passes for good Law and Divinity among the Popish Casuists and Schoolmen that the People are bound to believe their Bishop even then when he preaches Heresie And are so far from sinning in doing so that their submission to the Bishop and believing errors when taught by him is Meritorious It is a Cardinal who tells us Si rusticus circa Articulos fideì credat suo Episcopo proponenti aliquod dogma Hereticum meretur in Credendo licet sit Error quia tenetur credere donec ei constat esse contra Ecclesiam And before him our Countryman and he a famous Schoolman tells us to the same wild purpose Si audiat prelatum praedicantem propositionem erroneam quam nescit esse erroneam credat ei non peccat sed tenetur errare quid tenetur ei credere meretur volendo credere errorem tum simplicitas ignorantia excusant Nay such an ignorant person believing an Error which the Bishop has preached and proposed as a Truth and Article of Faith if he be put to Death and die in defence of that Error which he believes to be an Article of Faith he shall be a Martyr and have the honour and merit of Martyrdom Concedo si interficiatur pro tali errore quem credit esse articulum fidei potest adipisci meritum debitum martyrî quia error invincibilis non diminuit de merito But however this anciently did and at Rome still does pass for Catholick Doctrine with the Pope and his miserably inslaved Party yet the Church of England and all her true Sons believe and know it to be a prodigious and stupid Error Eighthly That our King and Bishops have power to question that Archbishop's or any such Sentence and when our King or his Subjects are concern'd if upon a just Examination they find it for want of Truth or Justice faulty they may justly condemn and reject it This is I believe evident For our Kings and Church of England de facto jure have question'd condemn'd and rejected Sentences of greater Popish Consistories than that of the Archbishop of Turin I mean Sentences given by the Pope himself in his own Consistory and his general Councils Of this we have a hundred Instances I shall for your satisfaction set down three or four thus First Pope Julius the Second Ex plenitudine potestatis certâ scientiâ c. Grants a Dispensation for Hen. 8th to marry the Relict of his Brother Arthur and declares the Marriage to be just and lawfull and yet Hen. 8th and his Bishops b did and justly might afterwards examine the Papal Sentence disobey'd it and declared it Null Secondly Pope Paul the Third Venerabilium fratrum Cardinalium consilio consensu gives Sentence and declares for a general Council and by his Bulls summons it to meet at Mantua then at Vincentia and then at Trent But Hen. the 8th and his Bishops and Parliament having seen those Bulls containing the Pope's Sentence and Decree for and Summons of a general Council at several times and to several places they did not only question his Sentence and Summons but condemned though they were Papists and absolutely rejected it shewing the many Nullities of that Summons and added their Protestation which they made good that they were neither bound nor would obey it as is evident by an Epistle of Hen. the 8th to the Emperor and all Christian Kings and in a Tract containing the Sentence of the King and Parliament and their Protestation against the Pope's Sentence for and Summons to that Council Thirdly When that Trent Council had met and sate eighteen Years made many Canons and Constitutions particularly about Matrimony and pronounced many Anathema's against all who did not believe and obey them The Bishops of England were so far from thinking that they had no power to question those Synodical Sentences and Constitutions that they have constantly and publickly Preach'd and Writ against them and proved them to be in many things erroneous impious or idolatrous Have the Bishops of England power to question and condemn the constitutions and synodical Decrees of the Pope made in his own consistory and his general Councils and have they no power to question one single Sentence given in a consistory of an inferior Archbishop Credat Judaeus Appella Fourthly Pope Paul the Third Habitâ cum Cardinalibus deliberatione maturâ de illorum consilio assensu by a solemn Sentence Excommunicates Hen. 8. Deposes him absolves his Subjects from their Oaths of Fidelity c. So Pope Pius 5. sub eadem formâ Excommunicates and deposes Queen Elizabeth And when some honest and loyal Papists had under their hands signified their b opinion 1. That the Pope could not absolve Papists from their Oath of Allegiance to a Protestant King 2. That he could not Depose and Murder Excommunicate Kings c. I say when this was heard at Rome Pope Innocent the 10 th with his Sacra Cardinalium Congregatio passes a damnatory Sentence and condemns the true opinion of those loyal Papists as heretical declarat subscriptores in poenas in sacris Canonibus Constitutionibus Apostolicis contranegantes potestatem Papae in causis fidei incidisse Now pray ' ask those Gentlemen whether the Bishops of England have not power to question the aforesaid Solemn and Judicial Sentences of the Popes for excommunicating deposing and murdering Kings If they have such power and may question the Pope's judicial Sentences given in his own Consistory or his General Councils then certainly they may much rather question Sentences past in any Archbishop's or inferior Consistory But if they say what I suppose they will not I am sure they should not That we have not power to question such Sentences they must pardon my incredulity if I neither do nor can believe them to be Protestants or true Sons of the Church of England but rather Jesuited Papists for I know none save such who do or dare say That such impious and traiterous Sentences given by the Pope in his Consistory or Councils may not be question'd by any Authority in the Church of England Is it possible that any Protestant nay any honest Papist should seriously think that a Sentence of the Pope to depose a King and absolve his Subjects from all Fidelity and Allegiance to him should be such as is not to be question'd by the King his Bishops or any loyal Subjects If so good night to Monarchy and all the royal Rights of Kings the Pope may when he will depose and deprive them of all their Jura Regalia and their Subjects though by the Law of God and Man obliged to it must not assist them Ninthly It is to be considered That our present Case is an Ecclesiastical not a Civil Cause concerning the Validity or Nullity of a Matrimonial Contract which both by our Laws and those of
Rome too is of Ecclesiastical Cognizance Now there is both in Law and the nature and the consequences of them a great difference between Ecclesiastical and Civil Causes Many instances might be given but being not my business I shall only set down two or three thus First Had it been an action of Debt and the Sentence at Turin had been that Mr. Cottington should pay 500 l. to Gallina Admit also that no such Debt was due and so the Sentence unjust and admit that at Gallina's instance that Sentence had been confirmed and executed here in England and Mr. Cottington compelled to pay that Summ. It might be a peice of injustice and a sin in the Judge to sentence him to pay what was no way due But as to Mr. Cottington it might be his Calamity being compell'd to pay what he did not owe but his crime it could not be It could be no sin in him compell'd by his Judge to pay that Money though indeed it was not due For he might lawfully have given Gallina so much Money without and before any compulsory decree and that decree could not make it to him unlawful But in our present Matrimonial Case it is far otherwise For if there was no Nullity in the Contract and the Sentence at Turin unjust and if upon that Sentence it be decreed here that Mr. Cottington shall Co-habit with Gallina here obedience to that unjust Sentence will not only be his Calamity but his Crime because in this Case he Co-habits with another Man's Wife and is guilty of Adultery Nor will the Judge's Sentence requiring such Co-habitation any way excuse him And on this consideration it highly concerns the Judges in this case to be assured of the Nullity least they sentence Mr. Cottington to Co-habit with another Man's Wife and so to sin and commit Adultery But if they do quod absit it as highly concerns Mr. Cottington to obey God rather than Men and though he suffer for it here rather disobey an unjust Sentence of an earthly Judge than the eternally just Judge of Heaven and Earth and suffer for it for ever hereafter Secondly The Church of Rome has Ecclesiastical Laws particularly about the Validity and Nullity of Matrimonial Contracts which neither are nor ought to be approved by the Church of England For 1. They admit the Oaths and Confessions of the parties desiring Sentence for divorce or Nullity and so it was in our present case which the Church of England admits not 2. It is their generally received opinion that although the Matrimonium be indeed ratum yet a Papal Dispensation may dissolve the vinculum conjugale and so induce a Nullity Dico saies a great Popish Casuist Matrimonium ratum posse dissolvi per Papae dispensationem And for Proof of it he cites five Popes did dispense with such Marriages and then adds Quod Gregorius Papa 13 Unica die cum undecim Matrimonijs ratis dispensavit And further tells us out of Sanchez of no less than fourty nine Divines Canonists Summists c. cited for the same opinion and he might have cited as many more and then he himself from their own received Principles fully proves it Now it highly concerns Mr. Cottington and his Judges too to know on what grounds the Archbishop of Turin gave Sentence for a Nullity For if it was only on the aforesaid Reasons and Popish Principles no Bishop or knowing Casuist of the Church of England will or can admit that Sentence to be just or grant a Nullity on such Grounds or sentence Mr. Cottington to Co-habit with Gallina her former Husband yet living and no just ground of any Nullity in their Matrimonial Contract appearing Thirdly The Laws of England concerning all Ecclesiastical particularly Matrimonial Causes are express forbidding all persons whoever they be inhabiting or resiant in this Kingdom to make use of or excuse the Judgments or Sentences of any Foreign Person Court or Judicature and requires upon pain of a Praemunire that all such Causes be tryed and finally determin'd within this Realm by our own Laws and Judges The words are thus If any Peron Inhabitant or Resiant in this Realm or any other of what condition soever at any time hereafter for any of the Causes aforesaid Matrimonial causes are expresly forenamed do procure from Rome or any other Foreign Court out of this Realm any manner of Foreign Process Sentences or Judgments of what kind soever or execute any of the same or do any Act c. such persons shall incurr a Praemunire I understand not Law and therefore referr this to you and those who do Only I observe 1. That the Word in the Statute is not Copulative If any Man do Procure and Execute and do any Act c. but Disjunctive If any Man Procure or Execute or do any Act c. That is if any Man do any one of those particulars mention'd if he either procure such Foreign Sentences or Execute or Abett and Assist c. Though he do not all yet he is liable to the punishment appointed by the Statute 2. That the end of the Statute is to provide against the damages and greivances of the Subjects of England and therefore forbids all Appeals to any Foreign Court Prelate or the Pope or to bring in any Foreign Process Sentence or Judgment given in any Foreign Court whatsoever And this is one reason of the Prohibition which the Statute doth instance in because neither the necessary proofs nor the true knowledge of the Cause can neither there be so well known nor the Witnesses there be so well examin'd as within the Realm so that the parties grieved by means of the said Appeals be most times without remedy So that though the Title and Epigraphe of the Statute be against Appeals to any Foreign Judicature yet in the body of the Statute the bringing in and executing of any Foreign Process Sentence or Judgment are equally forbid Thirdly Now for Gallina no Subject of England though now resiant here to bring in a Sentence of a Foreign Court and though the Proofs or Reasons of it be utterly unknown to plead it and have it without Examination executed to the Irreparable damage of a Person of Quality and a native Subject of England this seems to me to be against the true intent and meaning of this good Statute To conclude I do and must confess that of the Laws I have ventur'd to cite Law being none of my Profession I am no competent Judge and therefore begging your Pardon for my mistakes and medling with them I referr them and my self to You and the Learned Gentlemen of the Long Robe who best understand them who can I know easily discover my mistakes and will I hope without any severe Censure pardon them But for the Theological part of the Controversie and the Case of Conscience wherein his Judges in the Ecclesiastical Court and Mr. Cottington are concern'd this being within the
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
admit the Jews into this Common-weal and of the conveniences and inconveniences of their admission he only and not the People is to judge and by a Law authorize their admission then as to the Subjects their admission is no more a thing of indifferency but necessity No more matter of Offence or Scandal but Obedience such as we who are Subjects should not dispute but obey So that if any Man take offence or be scandalized at it it will certainly be Scandalum acceptum non datum And so not the fault of the Magistrate but of the Men if there be any such who are irrationally offended And this will manifestly appear if we consider 1. The Magistrate in reference to the People under him 2. The People in reference to the Magistrate and in reference one to another 1. For the Magistrate as he stands in Relation to the People it is certain by virtue of that supreme authority with which he is entrusted he is to judge what things are convenient or inconvenient for the People 2 When after serious Debate and mature Deliberation all circumstances considered he shall really think and judge that this which before was indifferent and no way enjoyned is hic nunc best for the publick good then he justly may by his legislative Power enjoyn the doing of it and by a positive Law bring a just Obligation upon the Subjects to do accordingly 3. Nor is this all he not only may but is bound and if he will do his Duty must do so and that by the Law of Nature and from the very first Principles of his Duty and that Magistracy he is intrusted with for it being certain that Salus Populi suprema Lex est and by his great and sacred Office an Obligation lies upon him by all honourable and honest means to procure their good so far as in him lies if he see such things though at present indifferent would much conduce to the Publick Good if they were enjoyned and obey'd accordingly I say in this case if he do not command them he neglects his Duty and violates that sacred Obligation which binds him to it So in this present case if all things maturely considered he impartially judge the readmission of the Jews will really and indeed tend to the good of the Publick he is bound to readmit them and he should be wanting to his Duty in promoting the Interest and Good of the Common-weal if he should do otherwise 4. Nor is it possible that any Scandal or Offence taken by the People should be of that moment as to hinder him And the Reason of this is manifest because the Obligation of doing his Duty and procuring the Peoples Good lies so indispensably upon him that he must not omit it though they be never so much displeased seeing if it must be so that one party will be displeased it is far more rational to hazard the Peoples than Gods Displeasure For if he do it and the People be scandalized and offended at it that Scandal is only Scandalum acceptum groundless and on his part altogether causless But if he neglect his Duty and do it not God is really and justly offended So that in short if after all things considered the Wisdom of the State shall judge it convenient and beneficial for the Publick to readmit the Jews and we are bound in Charity to think that unless they judge so they will not admit them then they are in Duty bound to do it notwithstanding any Displeasure or pretended Scandal which their Subjects will or can conceive against them for so doing It being evident that no supreme Magistrate is to neglect the doing of his Duty or using his just and lawful Liberty and Authority in putting that in Execution which upon impartial judgment and deliberation he conceives convenient for the good of the Common-wealth It is I confess to be wished and heartily prayed for that all Men would with a charitable Opinion and obsequious Obedience rest satisfied with the deliberate resolutions and constitutions of their Magistrates really intended for the publick Good and no doubt all sober and moderate Persons will do so But this is rather to be wished than hoped for The understandings aimes and interest of Men being so different that supreme Governours in no Age or Country did ever satisfie all no not with their best Actions and therefore it is not to be expected now But this pretended Scandal and Dissatisfaction of some should in reason be no Remora or Hinderance to the Magistrate to go on and according to his best Skill and Judgment promote the Good of all And if this be not admitted it will unhinge and enervate all Governments whatsoever For the Command of no King ever pleased all his Subjects of no General all his Souldiers of no Fatherof a Family all his Children and Servants of no Schoolmaster all his Scholars and yet this never did or indeed should hinder any King or General or Father or Master to give Commands such as in prudence they thought convenient and being given to put them in Execution The truth is it were impossible for any Government to subsist if supreme Magistrates should make no Law or civil Sanction till all their Subjects were satisfied 5. And as evident Reasons may in this Case of readmitting the Jews be drawn for the Liberty which by the Law of Nature and Scripture is inherent in the supreme Magistrate's and his just Authority to determine of indifferent things to prove that he gives no Scandal in case he use that Liberty and Authority in readmitting and giving Priviledges such as in prodence he shall think fit to the Jews So there may be further Reasons drawn for the same purpose from the consideration of the Subjects in relation to the supreme Magistrate For as they stand in this Relation there lies an Obligation upon them by the Law of God and Nature to yield cheerful and willing Obedience to all the just Commands of their Governours as this undoubtedly is and then where Obedience is morally due Offence and Scandal is in vain pretended It is irrational and irreligious too to pretend Scandal for the neglect of my Duty and so evidently disobey God and my Governours upon pretence I am afraid so to do But enough if not too much of this He that would have more Reasons from the Nature of Scandal may find enough in the best Casuist of our Nation and may be of any Nation else where although his Discourse in Hypothesi be applied to other particulars and a different Case of Scandal from this now in question yet what he hath said there in Thesi is as applicable to this as that 6. Now concerning this Toleration of the Jews we may further enquire 1. What Power is to give this Toleration 2. In what things they are to give it 3. For what Reasons and Motives they are to do it 4. How far and with what Restrictions and Limitations this should be
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