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
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
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
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
as Man and Wife and separate them from their second Spouses If it be objected That the Sentence was given in another Country where the Judges of England have no Jurisdiction and in an High-Court from whence there lieth no Appeal and that the Judges of England have no Superiority to call their Sentences in question and that therefore the Lady cannot call that Divorce in question here We answer That the principal cause in this case of the Lady's is not to reverse or call in question the Sentence given in Scotland but the principal Cause here is Whether her Marriage made in England with Sir John be of Validity or no For that as we say Sir John had another Wife living viz. Isabel Kennedy at the time of her Marriage without any mention to be made by the Lady of any Sentence of Divorce given in Scotland against which our Allegations if Sir John object That he was Divorced from her by Sentence in Scotland this question of the Divorce is brought in but incidently by Sir John in this Cause and also vainly and impertinently if it can be proved that the truth is contrary to that Sentence for that Sentence is in Law meerly void and cannot Barr the Lady for the reasons before alledged and for that Ecclesia was decepta in giving of that Sentence Now when a Sentence which is void in Law and especially against a Marriage is called in question but incidently before any Judge whatsoever though an inferior in a Cause which doth principally belong unto his Jurisdiction that Judge may take knowledge of and incidently examine the validity of that Sentence whether it were good or no by whom and wheresoever that Sentence was given though he were never so Superior a Judge not to the end to reverse or expresly to pronounce that Sentence to be void or not void but as he findeth it by examination of the Cause to be good or void so to give Sentence accordingly and determine the Cause principally depending before him without ever mentioning the erroneous Sentence in his Sentence Neither can the Sentence given here for the Nullity of the Lady's Marriage upon other matter than was pleaded and proved before the Judges in Scotland although the same Sentence had been principally called in question and directly pronounced to be void any ways impeach the Justice of Scotland for sith Judges in all Courts and Causes must judge according to that which is alledged and proved before them what impeachment is it to the justice of any Judge although his Sentence be revoked and a contrary Sentence given by another Judge when the parties between whom the Sute is either cannot or through negligence or collusion will not alledge or make such proof before him the first Judge as they might but afterwards before the second Judge good and sufficient proof is made a matter which falleth out every day here in England in every Civil and Ecclesiastical Court upon appeal made from one Court to another and the like falleth out in all other Countreys and yet the former Judge whose Sentence is revers'd thinketh not himself any whit impeached of injustice thereby That the absurdities which would ensue may by example more plainly appear if the Law should not be as we say Put this Case A Widower in the confines of England towards Scotland marrieth a Wife in a Parish-Church publickly in the presence of a hundred Witnesses and afterwards they live together by the space of a Year and have a Child at the years end upon some discontentment they both being desirous to be rid the one of the other the Woman in England sueth her Husband to be Divorced from him pretending that at such time as he married her he had another Wife living and produceth Witnesses which prove that he had married another Wife before he married her and Paradventure make some probable shew that that Wife was living when he married his second Wife who in truth was dead before as the Man could have plainly proved by twenty Witnesses if he had listed notwithstanding the Husband being willing to be rid of his Wife either would not plead that his former Wife was dead or else would not make any proof thereof Whereupon the Woman obtaineth Sentence against the Man whereby the marriage between them two by this collusion and error is pronounced void from which Sentence there was no Appeal or Provocation Now within a Month after this Divorce this Man goeth into the Confines of Scotland not ten Miles from the place where he and his divorced Wife formerly dwelt and there marrieth another Woman being ignorant of the former Wife and collusory Divorce and there Co-habiteth and dwelleth with her This Woman shortly after understanding of the premisses and that she could not be his lawful Wife but liv'd in Adultery with him desireth before the Judge in Scotland under whose jurisdiction they both dwell to be divorced from him and to be delivered from her adulterous living with him and offereth to prove all the Premisses most manifestly Were it not now a most absurd and abominable thing that this Woman should have no remedy any where but be enforced to live still in Adultery with this Man because the Sentence of divorce was given by a Judge in England pronouncing the Marriage between the Man and his second Wife to be void whereas it can be most manifestly and apparently proved that his first Wife was dead before his second Marriage and so the Sentence was given against the apparent truth And what impeachment of injustice can this be to the judge in England before whom it was never proved That the Man's first Wife was dead to have his Sentence reversed upon new proofs made before the Judge in Scotland Now between the Lady's Case and this Case there is no difference in truth of matter and point of Law only by reason of the multitude of the Witnesses the nearness of the time and place when and where these things in this case were done The truth thereof may more easily and readily be proved than in the Lady's cause it can but if the truth in her Case be proved though with more difficulty the Cases are all one If any Man shall yet doubt whether this cause can be heard and determin'd by the Ecclesiastical Courts in England it is desired That Sir John's Councel considering the Marriage was made here in England and the Lady and Sir John do both dwell here and by Law Sir John is not compellable to appear in any other place than England for this matter they would tell before what Judge this matter should be heard and determined For it is to be presumed that when two persons live in Adultery together and so in continual sin and the one of them seeketh redress and to be freed from that sinfull and adulterous life no Man will say That he or she shall be compelled to live notoriously in Adultery still and have no Judge at all to separate
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
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