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
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
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
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
Herculeas ultra quem jactat rauca columnas Famasnec officio par lamen illa suo En libi BARLOUM potuit quae Sculptor at ipsa Arte licet claram vincit ut umbra manum Ora venusta vides et nobilis Atria mentis Quod nitet interius nulla Tabella dabit The Tullie 〈◊〉 SEVERAL Miscellaneous and Weighty Cases of Conscience Learnedly and Judiciously Resolved By the Right Reverend Father in God Dr. THOMAS BARLOW Late Lord-Bishop of Lincoln VIZ. I. Of Toleration of Protestant Dissenters II. The King's Power to pardon Murder III. Objections from Gen. 9. 6. answered IV. Mr. Cottington's Case of Divorce With the Judgments of Dr. Allestrey Dr. Hall Sir Richard Lloyd Sir Richard Raines Dr. Oldys and the Doctors of Sorbonne upon the same V. For Toleration of the Jews VI. About Setting up Images in Churches VII An Dominium fundatur in Gratiâ With two Pages omitted in the English Machiavel and his Lordship's Censure thereupon London Printed and sold by Mrs. Davis in Amen-corner 1692. The Bookseller's PREFACE to the Reader THE Reader may be pleased to take notice that the following Tracts were written by the late Eminent and Learned Father of our Church Dr. Thomas Barlow Lord-Bishop of Lincoln and printed from MSS. written with his own Hand The Occasions these I. The Case of the Lawfulness of Toleration of the Jews was writ at the Request of a Person of Quality in the late troublesome Times when the Jews made Application to Cromwel for their Re-admission into England II. The Case of Toleration of Christian Dissenters was written to and at the Request of the Honourable and Learned Mr. Robert Boyle 1660. soon after the Restoration of K. Charles II. III. Whether it be lawful for his Sacred Majesty K. Charles II. to reprieve or pardon a Person convicted and legally condemned for Murder written upon occasion of Mr. John's being unfortunately convicted for the unhappy Death of Sir William Estcourt Bar. IV. The Case of Murder in Answer to an Objection then made from Gen. 9. 6. That Kings have not Power to pardon Murder V. Mr. Cottington's Case concerning the Validity or Nullity of his Marriage with Gallina her former Husband then living 1671. Mr. Cottington applying himself and Mr. Brent coming from the then Earl of Danby to request his Lordship's Opinion therein With a further Resolution of the same as also the Judgments of Dr. Allestrey Dr. Hall now Lord-Bishop of Bristol Sir Richard Lloyd Sir Richard Raines Dr. William Oldys and the Doctors of Sorbonne at Paris in point of Law and Conscience upon the same VI. A Breviate of the Case concerning setting up Images in the Parish-Church of Moulton in the Diocess and County of Lincoln 168 ¼ Writ upon occasion of this Learned Bishop's being cited before the Dean of the Arches for suffering such Images to be defaced c. And upon reading of which Case so truly and evidently stated the whole Prosecution which was then violently and virulently enough carried on against him was stopp'd VII Whether that Dominion is founded on Grace be a Tenet chargeable on the Church of Rome VIII One Folio Leaf omitted out of Machiavel in English with the Bishop's Censure thereupon The Reader may please to observe in Mr. Cottington's Case the Counsel use the Name of Frichinono for the Husband of Gallina which was his proper Name but the Bishop that of Patrimoniale which was the Title of his Publick Office and by which latter he was frequently known and called by at Turin The Resolution of this Case may be of great use it being never so fully stated before Davila tells us in his fifth Book that Hen. 4. was married to Q. Margaret at Nostredame by the Cardinal of Bourbon in Presence of the whole Court and she was given in Marriage by Charles 9. her Brother and after a long Cohabitation the Cardinal of Joyeuse the Pope's Nuncio and the Arch-Bishop of Arles being delegated by the Pope nulled the Marriage propter vim metum Q. Margaret alledging she was forced to it by her Brother And the Sentence gave liberty to the King and Queen to marry whom they would And accordingly the King afterwards married Mary of Medicis one of whose Daughters was Henrietta Maria the Wife of our K. Charles I. and Cardinal D'Ossat justified the Legality of this Sentence tho there had been no Cause shewn But the Law of Nations does not oblige our Courts to execute or pronounce Sentence according to Foreign ones Now tho the Bishop gave these Cases to his Friends when first writ with his leave to print them yet they fearing some of them might prejudice his further Promotions in the Church in those Days forbore Publication of them Tho we must do his Lordship this Right to aver that he had no regard to that so careless was he of the Event of any Action he thought himself obliged to do Religionis causâ that he has been often heard to say occasionally as a kind of Principle viz. He who thinks to save any thing by his Religion but his Soul will be a Loser in the end And his Lordship lived to see the Church of England of his Opinion in being indulgent to Dissenters for in that incomparable LETTER TO A DISSENTER written by the best and noblest Pen of our Age and upon the Measures of that Church in the Reign of K. James II. the Dissenters are told in express Words That the Church of England is convinc'd of its Error in being severe to them THE CASE of a TOLERATION IN Matters of Religion To the HONOURABLE ROBERT BOYLE Esq SIR IT is now a good while ago since you gave me command for so your Desires are and shall be to me to give you my Opinion in writing concerning the Toleration of several Religions or Opinions in a well-governed Church and State And though it matters not much what my Opinion be and besides my many Disabilities both of Body and Mind the little time I have by reading or meditation to collect more or digest those Notions I have renders me uncapable of saying much or indeed any thing which you do not know already yet in obedience to your command something I shall say for Cur me posse negem quod tu posse putes which may be an argument of my confiding in your Candor and Goodness and of my daring to trust you with all my Infirmities and an evidence not of my ability but willingness to serve you In short then I shall give you some of my Thoughts concerning Toleration tho not in that exact order and method not with that clear explication and confirmation of the Truth as I really desire and the Subject deserves I say then I. The Toleration we speak of is a Toleration of several Religions or several Opinions concerning it and therefore Atheists if there be any such come not under it For he who acknowledges no God cannot possibly be of any Religion which essentially
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
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
declared both by our Church and State For 1. Our Church has declared her Judgment that all Images are not absolutely unlawful or simply forbidden in the New Testament but only some in some Places and Circumstances when they may especially to poor ignorant People be dangerous Occasions of Superstition and Idolatry and more expresly a little after the Words are these We are not so scrupulous as to abhor Flowers wrought in Carpets Hangings Arras c. or Images of Princes on their Coin nor do we condemn the Art of Painting or Image-making c. Whence it is evident that our Church is neither against the Art of Painting nor any Civil Use of Images 2. Our State has by express Act of Parliament declared even in the time of our Reformation That they did not condemn any Civil Use of Images For even in that Statute in which they severely condemn and command the defacing Images in Churches they have this Proviso Provided always That this Act shall not extend to any Images or Pictures set or engraven on any Tomb in any Church Chappel or Church-Yard only for a Monument of any King Prince Noble Man or any other dead Person which hath not commonly been reputed for a Saint but that all such Images may continue Whence it is evident that our Church at the Reformation did not condemn any Civil Use of Images no not in sacred Places as Church-Yards Chappels or Churches much less in other Places And that we may more distinctly know what Images they condemn'd and why they would not tolerate them in Churches It is further to be considered 1. That the Church of England absolutely condemns all Images of the Trinity or any Person in it Father Son or Holy Ghost as absolutely unlawful and expresly condemned in Scripture Such Images are not to be tolerated neither in nor out of Churches 2. No Images of our Blessed Saviour of any Saints and Martyrs which with stupid Superstition and Idolatry have been and still are worshipped in the Popish Church are in the Judgment of our Church to be tolerated in our Temples or any Place of God's publick Worship For if they be it will be to the great and unavoidable danger of Idolatry This I conceive is the approved and received Doctrine of the Church of England and that it may more plainly and distinctly appear to be so I shall cite the Judgment of our Church and her Reasons for it in her own express Words and amongst other things too many to be transcrib'd she plainly tells us 1. That it is an ungodly thing to set up Images or Idols which in her Judgment signify the same thing in our Churches because it may give a great occasion of worshipping them 2. That Images in Churches painted on Clothes or Walls are unlawful and contrary to Christian Religion 3. That setting up Images in Churches is to the great and unavoidable danger of Idolatry and that the Law of God is against it 4. That the setting up the Image of God of our Blessed Saviour or any Saints is not tolerable in Churches but against God's Law 5. Wo be to the setters up and maintainers of Images in Churches 6. It is not possible if Images be in Churches to avoid Idolatry 7. Images of God our Blessed Saviour and the holiest Saints are of all others the most dangerous to be in Churches 8. Images in Churches are a Snare and tempting of God to the great danger and destruction of many 9. That Images in Churches in the Judgment of the Prophet and Apostle are only Teachers of Lies 10. God's horrible Wrath cannot be avoided without utter abolishing Images in Churches This is evidently the express Doctrine of our Homilies which absolutely condemns not only the worshipping but having Images in our Churches And it is no less evident that the Homilies and the Doctrine contained in them are both approved received and established by the Supreme Authority of our Church and State Canons of Convocation and Acts of Parliament This will appear 1. By the Testimony of King James who commends the diligent reading of our Articles and Homilies set forth by the Authority of the Church of England 2. By the Convocation of Q. Elizabeth the Supreme Ecclesiastical Power which expresly and particularly names and approves all our Homilies and declares the Doctrine contained in them to be a godly Doctrine as appears by the Articles of our Church composed and published in that Convocation 3. By the Convocation I Jacobi For as the Article last named declares our Homilies to contain a godly Doctrine so the Convocation of King James declares all things contained in that Article to be agreeable to the Word of God 4. All the Clergy of England all Graduates in the Universities all Chancellors Commissaries and Officials before they exercise any Ecclesiastical Jurisdiction are willingly and ex animo to assent consent approve and subscribe these Articles and this Doctrine and that absolutely without any Glosses or Senses of their own 5. And these Subscriptions are required and so the Doctrine subscribed to confirm'd by several Acts of Parliament 6. And if any impugn this Doctrine so declar'd and establish'd by the Supreme Power or maintain any Doctrine contrary or repugnant to it he is by our Canons to be excommunicated ipso facto and by the Statute if he be a beneficed Clergyman deprived The Premisses being certain and evident Truths the natural and necessary Consequences which follow from them to omit others will be these 1. That neither the Deputy-Chancellor of Lincoln nor any inferiour Court has or can have any just Authority or Power to approve and authorize the setting up of such Images in the Church which by the Supreme Power Ecclesiastical and Civil in Convocation and Parliament is expresly condemn'd as altogether unlawful and to the poor ignorant People pernicious 2. That they who maintain and encourage this Doctrine of setting up Images in our Churches if they persist in it are by our known Laws now in Force to be excommunicated ipso facto and if they be beneficed Clergy-men to be deprived Viderint quorum interest 3. And if any Ecclesiastical Judg or Court quod absit should approve authorize or encourage the setting up of such Images in our Churches it evidently follows from the Premisses that in so doing they approve and authorize that which the Church of England has publickly declared to be dangerous against the Law of God against Christian Religion and to many pernicious And therefore we have reason to believe that no good Son of the Church of England will approve authorize or encourage that which his Holy Mother has so absolutely and publickly condemned A Friend of the late Bishop of Lincoln's observing how customary it is to Protestant Writers to charge on the Papists the Tenet of Dominium fundatur in