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
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
for 't is no man's duty to believe any positive truth of Christian Religion till it be sufficiently revealed a sufficient revelation of truth being absolutely necessary and antecedent to an obligation to believe it and so to the duty of believing and when that is the Magistrate cannot certainly know and therefore he cannot compell any to the belief of these or those opinions as a part of their duty seeing he cannot certainly know whether it be their duty or no. Sir These Adversaria tumultuarily put together will need your pity and pardon being neither in a just order or method nor having that evidence of proof which otherwise they might have had had either my parts been better or my time for Meditation more As they are you freely have them and an absolute power to approve or condemn them Given you by SIR Your most Obliged humble Servant c. THE CASE OF MURDER The Case of MURDER GEN. ix 6. An Objection from the said Text That Kings have not power to pardon Murder Answered FOR the clearing and further Evidence of the truth of this Position That Kings and Supreme Powers may in some Cases pardon Murder there remains one and for ought yet appears but one Objection to be answered 't is grounded on the Law given to Noah after the Flood and about 796 years before the Mosaical Law which says that the Murderer shall surely be put to death The Law given to Noah was in these words He that sheds man's blood by man shall his blood be shed Wherein God Almighty appoints death to be the punishment of Murder Now if it be granted that the Mosaical Law binds only the Jews to whom it was given yet this Law given to Noah and in him to all his Posterity must bind Jews and Gentiles too who are all equally his Posterity Sol. In answer to this Objection and the reason of it which no way proves what is pretended I say 1. It is confess'd that this Law given to Noah did bind him and all his Posterity There were three men and but three who could make Positive Laws to bind all the World 1. Adam 2. Noal 3. Our Blessed Saviour Whatever Laws any of them made after sufficient Promulgation oblig'd the whole World and what Laws God gave to Adam or Noah all such Laws after sufficient Promulgation oblig'd their Posterity that is the whole World for as before the Flood all the men in the World came from Adam so after the Flood from Noah and it must be confess'd that although this Law given to Noah does not bind many to whom it was never promulg'd or made known yet God has sufficiently made it known to all Jews and Christians in the holy Scriptures and therefore we must confess our selves under the Obligation of it 2. It is certain that this Law given to Noah was as all Penal Laws are a Positive Law and that all such Laws are capable of Dispensation and that in several Cases without any dispensation their Obligation ceases of which more anon 3. It is certain that by these words By man shall his blood be shed By man there the Magistrate is meant who had Jus Gladii Power of Life and Death and so Authority to condemn and execute a Murderer which no Private Person had or could upon any just Grounds pretend to 4. When it is said That the Murderers blood shall be shed by man The Proposition is not Universal that every Murderer shall be put to death For if Noah or any Supreme Power had been a Murderer as even David the best of Kings was he could not by this or any other Law be put to death 1. Because it is evident that the Supreme Power has no Superior and therefore none to punish him especially not with death the greatest Punishment man can suffer 2. Nor could he do it himself for although Kings and Supreme Powers have Authority to take away other mens lives when they are Capital Offenders and do things worthy of death yet they cannot take away their own 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Self-murder being in no case lawful 3. And as they could not without sin and great Impiety kill themselves so they could not give Commission to any to do it It being impossible that I should give another Power to do that which I had no power to do my self 5. And as this Law extends not to Supreme Powers whose Blood cannot be shed by man although man's Blood have been shed by them so it extends not to all Subjects and Inferior persons who have Lawful Magistrates This the infinitely wise and just Lawgiver God himself has told us in the Text That if a Master had slain his Man-servant or Maid-servant and they die immediately under his hand then he was to be punish'd but if that Servant lived a day or two 24 hours say the Rabbins the Jews accounting 12. hours for a day his Master who kill'd him was not to die So that though a Master had shed the blood of his Man-servant or Maid-servant yet his blood by this Law given to Noah could not be shed for it 6. Other Cases there may be and are wherein a man may shed man's blood and yet his blood may not be shed for it For instance The Law required two Witnesses to put any Murderer to death and therefore if Sempronius had shed Titius his blood yet if there was but one Witness legally to prove it Sempronius his blood could not be shed by any man By the Premisses I think it is evident that this Law given to Noah He that sheds blood by man shall his blood be shed is not so universally obligatory as some may think it is Seeing there may be many persons and cases wherein man's blood may be shed and yet he who did it cannot be put to death for so doing The Query then will be Whether the Supreme Power who as to have his blood shed by any man is not under the Obligation of this Law may not in some cases pardon a person condemn'd for Murder For a distinct answer to this Query it is to be considered 1. That it is certain that this Law given to Noah nor any Law de poenis is not a Natural or Moral Law all which Laws were ab Origine at the Creation writ in the Heart of Adam and from him in the Hearts of all his Posterity and their Obligation eternal and indispensable But it was a positive Law given to Noah 1658. years after the Creation 2. It is certain That all such Positive and Penal Laws are capable of Dispensations and many Cases may happen in some times and circumstances of which the Supreme Power is the only or at least the Supreme Judge wherein the Obligation of such Laws ceaseth so that no man is bound to execute or undergo the Punishments appointed by those Laws That this may evidently appear I shall give some few Instances 1. It was a Divine
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
not only Unchristianly but Inhumanely and Barbarously used and then seeing Common-wealths and Societies never die though particular Persons do it may be a Query whether the Common-wealth of England now are not bound in Conscience and Equity to make some Satisfaction by real Kindness and Civility to the present Jews for the Injuries the same Common-wealth did to their Progenitors then Dub. The main Objection against them why they were banished was their Usury and the Mischief that came thereupon as appears by the Preamble of the Statute by which they were banished To this I say these things Sol. 1. That Usury is tollerated in all Christian Common-weals even in ours and therefore to expel Jews for that which is tollerated in Christians is irrational 2. The State may limit their modus usurae not to exceed that allow'd by Statutes and then no more Fault in them then us 3. If you consider the Tolleration and Readmission of the Jews respectu Ecclesiae there are only Three things which may rationally hinder a Toleration and Readmission of them into a Christian Common-wealth as Christian. 1. Inhonestum 2. Incommodum 3. Scandalum 1. Inhonestum I conceive that for Jews to live among Christians or Christians amongst Jews is not Inhonestum or Malum per se as being against no Law of God natural or positive either that of Nature or Scripture Because 1. Our Saviour and his Apostles after him lived amongst Jews unconverted which they would not have done had it been unlawful 2. The Apostles and primitive Christians lived amongst Pagan Idolaters who were far worse than Jews yet made no Scruple of Conscience nay the Apostles approving it For the Apostle commands the Christians to live so that they might gain the Pagans to the Faith by their Pious and Christian Conversation and therefore they supposed they might live amongst them for it were not Sense to suppose that they could gain those by their Conversation with whom they might not converse 3. It is certain and an undoubted Principle That Domium non fundatur in gratiâ and therefore a Jew nay a Turk or Pagan hath a just Right and Propriety in their Estates as well as Christians And having so when some of the Jews were turned Christians they were neither bound to quit their Inheritance or Country to avoid the company and conversation of those Jews who were not nor when they were multiplied so that the major and ruling Part were Christians could they by any Law of God or Man without manifest Injustice disquiet the Unconverted Jews in their Possessions or banish them from their Inheritance 4. In the Jewish Church by Gods express approbation and command their Gezim Advenae 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 whom the 70 Interpreters and Hellenists call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from the Caldee Giorim even those which they call'd Proselyti Portae who were neither circumcised nor submitted to the Law of Moses were permitted to live and God expresly commands that the Jews should use them kindly provided that they abstained from Idolatry and worship't the God of Israel Now if these might live in the Jews Church though not circumcised nor submitting to Moses's Law why may not Jews live in the Christian Church though they be not baptized and submit not to the Gospel 5. The Practice of the Christian World in all Ages and the Imperial and Canon Laws approve the living of Jews amongst Christians and why it should be thought unlawful amongst us I know not 6. Our Merchants live and converse with Jews nay Turks and Pagans abroad and therefore why may not Jews converse with them here seeing that there is less Danger that a few Jews should live amongst many Christians here than that a few Christians should live amongst many Jews Turks and Pagans abroad 2. Incommodum The Second thing proposed which might render the admission or toleration of the Jews unreasonable was the Incommodum the Harm or Disadvantages which might come to Christianity or Christians by their company and conversation For if indeed the admission and tolleration of them were disadvantageous to the Gospel and really tended to the abolition or diminution of the true Faith or the subversion and hinderance of Christianity it were certainly neither pious in the supreme Magistrate nor prudent to admit them but he ought in this case rather to expell them if they were here than re-admit them now they are away seeing he is Non solùm Reipublicae sed Ecclesiae Nutricius qui non solùm Civilia sed Sacra procuraret being Custos utriusque Tabulae a sacred Obligation lying upon him by the Law of Nature and Nations to be vigilent and cautious Ne quid detrimenti capiat Ecclesiae But on the other side if the civil State may be advantaged by their admission and the Church secured against such pretended Danger then ex hoc capite there is no Reason but they may be admitted And that there is no such Danger which might rationally hinder their admission I am induced to believe 1. Because if there had been any such Danger the Apostles would never which yet they did have permitted and approved the Christians living and conversing amongst the Jews 2. It hath been the constant and continued Practice of Christendom ever since to this Day to admit Jews to live amongst Christians and why we should pretend more Danger in this particular than either the Apostles or the Christian World ever since I understand not 3. 'T is true they have been Banished out of England and France and some other Countries but it was not for matter of Faith but Fact not for their Religion that they were Religione Jud aei but for other crimes and enormities as their Blaspheming Jesus Christ Crucifying Children in opprobrium Christi Vilating the Pacta conventa and Capitulations of their Admission c. as plainly appears by the Preamble to the Statute of their Banishment and by our Historians generally 3. It is the Judgment of an eminent Divine both for Learning and Moderation that there is not much Danger that the Jews will subvert any or much endeavour the seducing of others to their Religion and he hath it out of Osiander and Capito two Persons of eminent Note in their time and he gives his Reason Quia Judaei antiquitus etiam stante eorum Politiâ ante Christum natum si Civitatem aliquam aut Populum bello devicissent legem Mosaicum ipsis non imponebant legem enim illam ad Gentes pertinere non put abant sed solum ut relictis Idolis Deum unum colerent praecepta Noachida observarent And indeed as we find not in any Story that the Jews have been active to gain Proselytes so we do not find any considerable number of Men in any Country which have apostated from Christianity to Judaism And the Reason of this may be besides the senceless
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
done For the First notwithstanding what Erastus with his Followers and Selden of late have said I believe it to be a manifest Truth That in every Christian Nation there are or should be two divine distinct Powers 1. Sacred or Spiritual 2. Civil or Temporal In both which Powers we may consider 1. Principium a quo the Principle and immediate Cause from whence they flow and from whence they are derived to Men and thus the Temporal Power is immediately from God as he is the great Maker and Monarch of the World by whom Kings reign who communicates his Power and Name to Magistrates so that they are not only Rom. 13. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 his Delegates and Substitutes but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Gods too Psal. 82. I have said ye are Gods 2. The Spiritual Power is from Christ as Head of his Church his Father gave him All Power in Heaven and earth and some of that Power he hath communicated to his Apostles and Ministers who are his Ambassadors Pastors of his People and Stewards of his Houshold 2. Subjectum in quo the civil Power in the civil Magistrate the sacred Power in the Ministers 3. Finis in quem tendunt the one being ordained to procure our temporal Good here the other our eternal Good hereafter This premised I say That the Jews neither desiring nor intending to be Members of our Church but only of our Common-weal their Admission or Exclusion depends only on the Civil Power For the Command of the Common-weal as it is a civil Society being solely in the Civil Magistrate to him only it will belong to judge whether it be fit to admit or exclude them and to do accordingly 'T is true the Kingdom of Christ his Church is not a Temporal but a Spiritual Society which he rules inwardly by his Spirit outwardly by his Ministers Bishops or Presbiters or Pastors call them what you will who are his Ambassadours and Stewards who have a Law to rule by the Gospel of Jesus Christ. To these he hath committed the Keys of his House and Kingdom so that they and they only can admit Men into it by Baptism and exclude by Excomunication The end and use of a Key being to open and shut and these Keys committed to them they only have the use of them and according to the best of their Skill are to use them accordingly On which Principles it follows that the Jews neither being Christians nor for ought appears intending to be their Admission or Exclusion no way belongs to the Spiritual Governours of the Church their sacred Jurisdiction being only over the Houshold of Faith the Christian Church of which the Jews are no part and therefore not under that Jurisdiction So that I doubt not but the Admission or Nonadmission of the Jews belongs only to the Civil not Sacred Power 2. The Second Query is In what things they are to be tolerated And to this I say 1. That there is an Antithesis and Opposition between Approbation and Toleration of any thing so that in propriety of Speech we approve good tolerate bad things And then when the Question is about the Toleration of the Jews we suppose that there is some evil in them which for some Reasons some Ends and Purposes is to be tolerated in our Christian Common-weal 2. That evils may be of two sorts 1. Such as are against the Law of Nature 2. Such as are against positive Law that we usually call the Law of Nature this the Law of Scripture both Divine For in this Case the humane Laws come not in Consideration For if it please the supreme Magistrate to admit them by a Law then all humane Laws of this Common-weal if there be any against them are ipso facto null and abrogated And so their Admission the will of the State legally declared for it being supposed cannot possibly be against any positive Law of this Common-weal 2. Now then for the first sort of evils such as are against the Law of Nature and are intrinsecè ex naturà suà mala these no Magistrate may tolerate The Obligation of the Law of Nature is so inviolable that God himself in all the Old Testament never gave any Dispensation of that Law nor Toleration of any sins against it much less can the Civil Magistrate who is but his Vicegerent and Deputy and neither hath nor can have any Commission to do more than his great Lord and Master 'T is true the Magistrate is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Gods Minister and Vice-gerent and so Custos utriksque tabulae armed with the Sword of Justice which he must not bear in vain but is bound by his place and that sacred calling he carries to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Revenger of such Sins and a Punisher of Malefactors against the Law of Nature And that we may apply this in Hypothesi to our particular Case of the Readmission of the Jews I say 1. That in the Law of Moses and the whole old Testament there is nothing contained to the contrary or repugnant to the Law of Nature 2. That this Law of Moses and the old Testament is or at least should be the adequate rule of the Jews Religion and therefore so long as they keep to this there is no thing in their Religion which is intollerable on this Account as being against the Law of Nature 3. But if there be any thing in their Religion as now they profess it superinduced by Error or Custom which is indeed against Jus naturale that should not be tolerated in this or any Christian Common-wealth And if the Christian Magistrate tye them to abstain from all Idolatry Blasphemy Murther Adultery and all such other Sins against the Light and Law of Nature he tyes them to no more then they in their flourishing State of their Common-weal ty'd others For though they did not require of their Proselytes those of the Gate I mean to submit to the positive Law and Precepts of Moses yet they did universally require of them to abstain from Blasphemy Idolatry and all natural Injustice as is manifest in Josephus the Sacred Text it self and their Rabbinical and Talmutical Writers So that if Christian Magistrates do as indeed they should denie any Toleration of such unnatural Enormities they have Reason to rest satisfied with it seeing no more is denied to them in ours than they denied to others in their Common-wealth Dub. But it must be said Vsury Boligamy and the Marriage of a Sister was by the Law of Moses permitted to them and therefore the Practicers of some things against the Law of Nature Sol. To this I say 1. That 't is true that Aristotle and divers other Philosophers conceived Usury to be against the Law of Nature and many Divines of eminent Note have thought and published their Opinions to the World That both Vsury and Poligamy and marrying a Sister are so too Yet
2. This I conceive to be a manifest Mistake for it will evidently and undeniably follow God permitted Vsury and Polygamy and marrying a Sister to the Jews by a positive Law therefore neither of them is or can be against the Law of Nature it being a demonstrative Truth and generally confessed by the best Lawyers School-men and Casuists That God never did nor manente naturâ humanâeadem could dispense with the Law of Nature So that I think that Assertion of Grotius and many before him to be a certain Truth That nothing was permitted to the Jews in the Old Testament which was against the Law of Nature nor should any such Sins be tolerated now 2. The Second sort of Sins are such as are against some positive Law of God and of such the Jews must needs be guilty I mean such of them and only such to whom the Gospel has been sufficiently reveal'd as denying the blessed Trinity and the whole Gospel of Jesus Christ That I may not be mistaken in this Assertion I say 1. That sufficient Promulgation is absolutely necessary to the Obligation of any positive Law of God or Man Humane or Divine it being morally impossible that any Man should be bound to obey the Laws of any Authority till it be sufficiently evidenced to him that indeed they are the Laws of such Authority 2. If then there be any Jews in any part of the World as I doubt not but there may be many to whom the Gospel or any part of it is not sufficiently revealed then I dare pronounce them innocently ignorant of all or so much of the Gospel as hath not been sufficiently discovered to them and Christians guilty who have taken no more Care and Pains to discover that Truth to others of which they were abundantly convinced themselves And upon this ground I think that there lies a sacred and heavy Obligation upon Christians as being bound to seek the Glory of God the Propagation of the Gospel and the Conversion and Salvation of their Brethren to endeavour the Conversion of the Jews which certainly cannot be by banishing them from all Christian Common-wealths And therefore they must either go to the Jews or bring the Jews to them that so they may win them to Christ by the Innocence of their Lives and the Truth and Evidence of their Doctrine Now these two are both one as to our present Case and Purpose for certainly if it be lawful for us to go and live amongst the Jews to Preach the Gospel then it will be as lawful to bring them hither and let them live amongst us to the same Purpose And so the bringing in of the Jews will not be so irrational a thing as some phansie for 't is no more very strongly and would make the World believe their Readmission to be guilty of I know not what Iniquity Dub. But it may and may be will be said That the whole Gospel was sufficiently promulgated by our Saviour and his Apostles that their Preaching and innocent Life and prodigious Miracles done in Confirmation of it and the Obsignation of it by our blessed Saviours Death and Resurrection were Evidences enough that it was a divine Law and therefore obligatory both to them that heard it and their Posterity so that it needed no more Promulgation but is still obligatory by the Force of the First as Moses his Law being once miraculously promulged in Mount Sina brought an Obligation on those that heard it and all their Posterity Sol. To this I say that 't is a manifest and certain Truth That the Publication of the Gospel by our Saviour and his Apostles was a Promulgation of it abundantly sufficient to all those who heard and saw those divine Persons their Preaching and Miracles I say personally to them and properly per se to none else unless 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as the Greek Scholia tell us by the Tradition and constant and faithful Testimony of those Eye-witnesses it had been carefully delivered down to Posterity For suppose which is not impossible that all those who heard our Saviour's and his Apostles Doctrine and saw their Miracles had concealed them from their Posterity so that they had never heard any thing of them Then I say their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and Descendents who neither heard the Doctrine nor personnally saw the Miracles nor had them any way delivered to them by the Tradition or Testimony of their forefathers were no way obliged to believe any Gospel-Law as never having any such Law sufficiently promulged and made known unto them without which it was impossible they should know those Laws and by consequent impossible they should be obliged by them So that it is not the first miraculous Promulgation of the Gospel which does per se and of its own Nature oblige us to Faith and Evangelical Obedience but the Continuation of it down to us by the Tradition and constant concurring and faithful Testimony of those that were Eye-witnesses and those that followed them And if through the impiety or negligence of this or any other Age this Continuation of the First Promulgation should cease then the Obligation to believe the Gospel would cease also as to our Posterity unless it ceased by their Fault or were otherwise made sufficiently known unto them Whence also it follows that the Sin and Infidelity of those Jews who saw Christ's Miracles is far greater as being against such demonstrative Evidences of Truth then the Infidelity of the present Jews whose Evidences for Conviction though enough are much lesser and by Consequent their Infidelity not so great And hence it further follows evidently enough that seeing the Apostles themselves held Correspondence and had Communion and civil Conversation with those Jews whose Obstinacy and Infidelity was far greater as standing in Contradiction to all those miraculous Works and divine Testifications of Evangelical Truth certainly we may have our Conversation and civil Communion amongst those Jews whose Obstinacy and Infidelity though great enough is far less And then it will be manifest that their Readmission into our Christian Common-wealth with those bounds and limitations which we believe and hope the Piety and Prudence of the State will put upon them is not in it self unlawful Quod er at dicendum I have stood the longer upon this Discourse because I believe that from these and such like Principles an evident and fundamental Reason may be given why Sinners against the Law of Scripture and positive Evangelical Sanctions may be tollerated in a Christian Common-wealth when Sinners against the Law of Nature are not nor indeed can be Quaere Let the Query then be this Why may a Christian Magistrate tolerate Sins and Sinners against the positive Law of the Gospel and not against the Law of Nature Sol. In answer to which Query I shall crave leave to say Two Things 1. De facto That it ever hath been so in all Ages of the Church all Christian Kings and
by the light of Natural Reason knew and confest Ingratitude to be a fault yet in Hypothesi how far this or that man in particular is guilty of that fault is very difficult if not impossible to be known by any save him who knows the heart 2. It is a known and received truth by all Lawyers and Divines generally that no positive Law of God or man does or can bind us without a sufficient promulgation such a sufficient Promulgation being necessary to the obligation of all positive Laws But now when the positive truths of the Gospel are sufficiently revealed and romulgated to Titius and Sempronius to this and that particular person is difficult if not impossible for any man to know unless he could know the divers abilities and capacities of those persons to whom those Truths are published For as those Pagans to whom the Gospel was never revealed as to many Nations it never was are no way under the obligation of it nor any way lyable to sin or punishment for not believing it whence that saying of Augustine speaking of the Gentiles Veniam habebunt propter Infidelitatem damnabuntur propter peccata contra naturam So amongst those to whom it has been revealed there is a great difference in respect of the sufficiency or insufficiency of its promulgation for it may be a sufficient promulgation to one which their capacities considered is not to another and so the error of one be a crime when the other tho holding the same opinion is innocent And theerefore to persecute and punish men with loss of Livelihood Liberty or Life for Opinions in Religion only when we cannot know whether or how far they are crimes to consume diffenting Brethren with Fire and Faggot to make a Coal of a Christian and certainly kill him for an uncertain crime this is that which none should and it were to be wished that no Christian wo'd do It is to this purpose well observed by Grotius that in the Jewish Religion which was established in some cases by Penal Sanctions and Coactive punishments although the Sadduces deny'd the Resurrection and in that were judged to be as indeed they were erroneous yet they were not punished for it Nunquam eos poenis subdiderunt faith Grotius and he conceives the reason to be that we now speak of that is want of clear revelation or sufficient promulgation Dogma resurrectionis verissimum illud quidem sed in lege judaicâ non nisi obscurè sub verborum aut rerum involucris traditum And on this ground I think many thousand poor Souls in Spain and Italy who by Priests and Parents and Governours are kept in an invincible ignorance of the Gospel innocently disbelieve or are ignorant of many Gospel-truths which to us who have a greater measure of Revelation would be Criminal and damnable 5. Upon this ground I am absolutely against punishing Hereticks with death it being uncertain who are really such For to kill a man for an Heretick before I can tell whether he be so or no is certainly a temerarious act which may argue some zeal but little Justice in him that does it For further evidencing of this I say 1. That 't is not yet agreed amongst Divines who are formally Hereticks and to agree of the punishment and that Capital before there be a constat for the crime is a strange piece of justice 2. Some would have the formality of Herefie to consist in pertinacy or contumacy out of St. Augustine who tells us Qui in Ecclesiâ pravum quod sapiunt si correcti non sapiunt sed resistunt Contumaciter Haeretici sunt So St. Augustine and Justinian to the same effect though in other words Haeresis est obstinatioris animi dementia Now Seeing pertinacy is an internal thing and such a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and constitution of the Soul as none but God does or can know it were but just to stay the execution of Hereticks till they be certain what is Heresie Constet de culpâ priusquam irrogetur paena 3. The Greek Scholia on that of Tit. 3. 10. require to an Heretick that he be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 self-condemned incurable incorrigible but none of these are within the compass of humane cognizance for who can tell what Heretick is self-condemned incorrigible or incurable and if they cannot why should they inflict a certain for an uncertain crime Certainly all sober men will and must confess that Autocatacrisie Incurability and Incorrigibility depend on many spiritual and internal Circumstances which are visible to no eye but that of Heaven And therefore the punishment of those Crimes should be left to that Judge who alone can certainly know them Si judicas cognosce 4. They say an Heresie must be contra Articulos fidei Now 't is not agreed which and how many are such and what makes them so those being Articles of Faith to some which are not so to others Certainly it is but equal that men should not be hanged for Heresie against the Articles of our Faith till it be resolved and known what Propositions are such If a man commit Murder Adultery Theft Perjury if he be a Traytor to his Prince or a Robber on the High-ways all men generally agree in this that these are crimes and accordingly punish them But 't is not so with Heresie and Opinions in Religion each party believes his own Positions to be true and condemns his adversary so that what is Heresie to one is Catholick verity to another In short it were to be wish'd that men would not be so fierce to punish Heresie till they be more certainly informed and assured what it is But if Heresie cannot be certainly known why doth the Apostle say Haereticum de vita How can we avoid what we cannot certainly know why do we and all Christians punish Hereticks with Ecclesiastical Censures Suspension Penance Excommunication c. Can we justly punish that crime with any punishment Ecclesiastical or Civil which we cannot certainly know To this Discourse in short I say 1. That the old Monk mistook the Apostles meaning much when he would have us believe that the Apostle there commands to punish the Heretick with death and reads the Text thus Haereticus de Vitâ i. e. de vitâ tolle He was beholden to the Latin Translation for that Gloss for sure he was not guilty of much Greek though the Latin was little beholding to him for mangling it so barbarously 2. He saith only 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 evita turn away from such a one Such are to be admonished first Mat. 17. 16 17. and then as Grotius well observes Id sinon prosit abrumpenda est cum eis omnis familiarior consuetudo Here is nothing of punishment 't is only Evita not Excommunica 3. And if you ask how I can avoid an Heretick if I cannot certainly know what Heresie is I answer and I am
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
failings as our Blessed Saviour only excepted the best men in the world ever bad then all the members of that Body as by the indispensable Law of Allegiance they are bound ought to conceal the frailties of their Prince and not to censure or publish them to his dishonour either by word or writing 2. But notwithstanding this it is too certain that in this Nation in the late unhappy times of confusion and most horrid Rebellion we have had a multitude and rable of seditious people who miscall'd themselves the Goldy party who have been so far from duly honouring their Gracious Soveraign maintaining the known Rights of his Crown and preserving his Sacred person from danger that they have without all ground falsly slandered and in the Press and Pulpit by Lyes and Libels indeavour'd to ruin his honour and reputation Nor stay'd they here but having got power to compleat the Tragedy they did what before they desired seise the Kings Revenue and all the Rights of the Crown into their own bands and at last with a prodigious and more than Pagan impiety horresco referens they murdered their innocent and pious Prince An act so villanous and so far beyond all expression barbarous that since our Blessed Saviours death no Age or Nation ever had or I hope ever will have any Villany equal to it and all circumstances considered of parallel impiety And since his Majesties happy and Miraculous Restauration to his Fathers Throne in peace it is too evident by the impious Plots and Conspiracies happily discovered and their disloyal and Trayterous designs disappointed some still remain who if they had What I hope they never will ability want not a mind to do mischief who have talk'd so long of that liberty and property of the subject that to maintain the just Rights and Prerogative of their Prince which in the first place ought to have been consider'd and preserved is no part of their care and desire but rather the diminution of it and had they ability and opportunity the utter abrogation of it The Premisses consider'd I think that every loyal subject as he is by natural or sworn Allegiance or both at all times so especially in the circumstances we now are is obliged with more care and diligence to maintain and vindicate his Soveraigns just Rights and Prerogatives For where and when there is greater and more eminent danger there ought to be greater care and diligence to prevent it These Considerations and some addresses of some honest Cavaliers who believed that the King had power by his Prerogative Royal to pardon in the Cafe proposed but could more easily believe the truth than answer Objections against it and therefore desired my assistance to help them to answer the principal and indeed the only pretended Objection which seem'd and only seem'd to prove that his Sacred Majesty could not pardon a person legally condemn'd for Murder I say that these reasons induced me more seriously to consider the Case proposed and after diligent consideration of all the particulars being in my own judgment convinc'd and having satisfi'd my doubting friends That his Majesty might lawfully pardon such a condemn'd Malefactor I shall now in short give you an account of those Reasons which satisfy'd me and them and refer them to your better Judgment And here that I may set down what I have to say with more method and perspicuity I shall 1. Suppose two or three things which to me seem evident Truths and will conduce to manifest his Majesties power to pardon and then I shall proceed I suppose then 1. That the Kingdom of England is a Monarchy That is as the word signifies a Government wherein the Supreme power is in one single person This our Statutes say and in our Oath of Supremacy we swear That the King is the ONLY SUPREME Governour of this Realm 1. Supreme and therefore none above him 2. ONLY Supreme and therefore none coordinate with him or equal to him 2. That England is an Hereditary Monarchy We say the King never dies The man who was King may die and cease to be but the King and Royal Power ceases not but immediately descends to and is seated in his next Heir and Successor In the next minute after any King's death the next Heir to the Crown is actually King as well and as much before as after his Coronation As in Matrimony it is not the Solemnization of it in the Church nor the Prayers and Benediction of the Priest that makes Husband and Wife For it is by Law and Reason certain that consensus facit Matrimonium Solemnization of it in the Church is only a publick Declaration of the antecedent consent which made the parties man and wife coram Deo before they came to the Church So is Coronation to a King it does not constitute and make him so but presuppose and declare publickly that this person is indeed our Prince Neither has the Pope or people any thing to do by way of Election or approbation of a Successor to the Crown And so in our Oath of Allegiance we swear fidelity to the King His HEIRS and SUCCESSORS The same Oath of Allegiance we took to Charles the Martyr in the next minute after his death as equally and indispensably bound us to be loyal and faithful to his Son and Heir Charles the Second our now Gracious King 3. The Kingdom of England is not only a Monarchy but an ABSOLUTE Monarchy So my Lord Cook tells us in these signal words Thus it hath appeared as well by the ancient COMMON LAWS as by the Judgment and RESOLUTION of the JUDGES of the Laws of England in All AGES and by the Authority of MANY ACTS of Parliament that the Kingdom of England is an ABSOLUTE Monarchy and that the King is the Supreme Governour c. And Sir John Davis that I may not trouble you with any more Quotations says the very same thing The King of England are ABSOLUTE EMPERORS in their Dominions c. And again The King of England has the same ABSOLUTE Liberties in his Dominions as the Emperor in his Empire The meaning is not that our Kings are so absolute as to be freed from obedience of the Laws of God natural or positive in the Gospel but because there is no power on earth except their own which can lay any obligation or limitation upon them And this is evident because our Kings being supreme having none superior or equal to them it is impossible that any power on earth for it is most certain that no inferior power can do it should be able to oblige or limit them But it may be said If our Kings be absolute so as no power on earth can oblige or limit them then they may by themselves make and abrogate Laws lay Taxes on the people c. This does not follow for although no power on earth is superior to them or can oblige or limit them yet they
that Archbishop nor the Pope himself though the Jesuites and some Canonists be of the contrary opinion pretend to be infallible And once more as the definitive Sentence of any Popish Archbishop or of the Pope himself in his Consistory or in a general Counsel can be no good President or just ground to warrant any Protestant Judge or Court to judge accordingly or any legall Barr or Let to hinder them to give a contrary Sentence so sure I am that no such Sentence given by such Persons and Judges in any of their Courts Consistories or Counsells can be a sufficient ground for Mr. Cottington to relie upon to give stisfaction and quiet to his Conscience so as to secure him that he may safely and without sin Co-habit with Gallina as with his Lawfull Wife only because they have pronounced her Marriage with Patrimoniale to be a Nullity For besides that he has many Reasons if they may be heard as in Law and Conscience they ought Reg. Nullus 20. de Reg. Juris in 6. to suspect and deny that Sentence and to believe it illegall and injust The thing is evident because definitive Sentences given not only in Inferiour but in Superiour Courts and General Councils are so far from giving satisfaction to Protestants or Papists or quieting their Consciences in a belief of what is in such Sentences judicially defin'd that in many things they actually dissent and confidently deny such Definitions so it was the Definitive Sentence of a Popish Convocation and Parliament in the time of Hen. 8. that the King was Supreme over all Persons and in all Causes Ecclesiastical and Temporal and that the Pope had no power in England yet the Sentence of those two great Courts each Supreme in its kind give little satisfaction to our Papists now who absolutely deny such Supremacy So the Convocation and Parliament in the beginning of Queen Mary's Reign by their definitive Sentence Establish Popery here in England which gave as little satisfaction to Protestants who did both believe and know that the Religion Established was Erroneous and therefore the Establishment by the Law of God and the Gospel unwarrantable and unjust In short the adequate and only rule of Conscience which can satisfie and quiet it and on which it may securely relie for sure Directions is the will of God made known to us lumine naturae aut scripturae by natural Reason or Divine Revelation in Scripture For what ever can be made appear to us by clear and convincing Reason grounded on Nature or Scripture de faciendâ aut fugiendâ this may and will satisfie and secure our Conscience so that we may innocently act accordingly but otherwise no Sentence of any Man or Court Ecclesiastical or Temporal can do it unless the Reasons of such Sentence be and appear to be sufficient And this brings me to the second Medium express'd in the Case to shew the Marriage of Patrimoniale and Gallina to be a Nullity The reason alledged in the Case as the ground of the Archbishop of Turin's Sentence and of the Nullity of the said Marriage is this That Gallina was under a Force and Fear caus'd by her Father by reason whereof her consent was not voluntary as by Law it ought to be and therefore the Matrimonial contract for want of such a voluntary and free consent invalid and a Nullity But thisreason is too weak and altogether insufficient To be a just ground either first of the aforesaid Sentence of Nullity or secondly to secure and quiet the Conscience of Mr. Cottington it he obey'd that Sentence and should Co-habit with Gallina as may appear if we consider 1. That 't is the avow'd Judgment of a Person Eminent for his great knowledge of all Learning especially of the Laws that no Fear how great soever humane Constitutions secluded does make the actions which proceed from it Involuntary so as to hinder their Obligation and Validity For he who promises any thing for fear which otherwise he would not have done is yet oblig'd to make good his promise 2. His reason is because he or she who consents and promises any thing for fear does indeed and actually consent and promise and that absolutely and not upon any condition This he further proves by the Authority and an instance of Aristotle who saies That he who in a Storm at Sea casts his Goods over Board would be willing to save them on this Condition if he might escape Shipwrack but in those Circumstances and Danger he is then in he is absolutely willing to loose them and cast them into the Sea Nor is it Aristotle only and Grotius who say this but all the Scholiasts and Commentators on Aristotle both Greek and Latine which I have yet seen say the same thing And then if the Authority and Judgment of so many and so learned Men be valuable as no doubt it is fear as is pretended does not make those Actions whose Principle it is involuntary and the truth of this is further and beyond dispute evident 3. Because Fear is the Principle which makes such Actions voluntary and the Person under such fear willing to produce them For t is evident that there is nothing which makes a Man in a Storm willing to cast his Goods into the Sea but the fear to loose his Ship and his Life if he do not so Nay secondly so far is fear from making our actions Involuntary that the greater the fear is they are by it made more voluntary for no Man before he was in fear was ever willing to cast his Goods into the Sea but after the Storm and his Danger and so his fear begun his willingness to loose his Goods and save himself begun too and as the Danger and his Fear increased so proportionably his willingness to cast away his Goods and when his Danger and Fear are come to the height then and not till then he is absolutely willing to cast them into the Sea and makes hast to put that will in Execution being as really desirous and willing to loose his Goods as by so doing to save his Ship and himself so that if fear made our actions Involuntary then the more the fear was they would be more Involuntary whereas the contrary is evident that as our fear increaseth so our willingness to do those actions which procede from it 4. The fear and force Gallina pretends to make her contract with Patrimoniale a Nullity was from her own Father It is pretended her Father forc'd her to consent whence it appears that she had her Father's consent and command to marry him and may be many and severe Threatnings too if she did not Marry him Whether this was so or not I know not but if it was so yet this neither did nor by any Law of God or Man could make her Matrimonial contract a Nullity First That any Law of God Natural or Positive should make the consent command or threatnings
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
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