facto confirm what they had illegally done For it is both Reason and Law that a Nullity is not capable of Confirmation because Confirmation always presupposeth some antecedent Right in the thing to be confirmed It does not give a Right but does only strengthen an antecedent infirm Right Now it is certain that the Parishioners had no Right to raze out those Texts of Scripture which the Supreme Authority had placed there and therefore no Order got ex post facto could confirm what they had Illegally done 3. Nor could the Deputy-Chancellor's Order if they had procured it before they went to raze out those Texts of Scripture formerly writ upon the Walls have given them any just Power to raze out those Texts it being impossible that any inferiour Judg or Court should null the Sentence of the Supreme I know that Pope Gregory the First one of the first Introducers of Popish Superstition about Images tells us that Images are Lay-mens Books and that Pictures are as profitable to Idiots who cannot as the Scriptures are to those who can read them An Assertion evidently erronoous and impious And yet the Trent-Conventicle to the same purpose faith That Images instruct and confirm the People in the Articles of Faith to their great Benefit But God Almighty by his Prophet tells us That Images are Teachers of Lies This King James of happy Memory and his pious and learned Convocation well knowing and that the Church of England had condemned the setting up of Images in our Churches as shall anon appear they Decree and Command That instead of Popish Images which were Teachers of Lies the Ten Commandments and choice Sentences of Scripture should be writ upon the Walls of our Churches whence without fear of Error the People might learn Divine and Infallible Truths And here the Saying of an antient and excellent Person is worthy of our Memory and Consideration 't is this They deserve to err who as the Papists do seek Christ and his Apostles not in the Sacred Scriptures but in Images and Pictures I know that the Painter and those few Parishioners who were for taking away those Sentences of Scripture antiently writ upon the Walls have instead of them writ some other Sentences of Scripture in several Places where none were before But this does not excuse but rather aggravate their Crime For 1. This was not done till some time after they had finished their Work wash'd out the Texts of Scripture antiently writ upon the Walls and set up all their Images When finding what they had done displeased many particularly their Bishop and that their Proceedings were censured as Illegal and by no Law Warrantable then and not till then they caused some other Texts of Scripture to be writ upon the Walls 2. And this they did without any Advice or Direction of their Minister or any who had the Cure of their Souls Whereas the Canon required that chosen Sentences of Scripture should be writ upon the Walls And we may be sure that the pious and learned King and Convocation who made that Canon did not intend that the ignorant Painter and poor Parishioners but some who had more Understanding and Cure of their Souls should choose such Sentences as should be for the Peoples Edification most plain and pertinent But no more of this For although what the Painter and a few private Persons did against the Canon and Constitution of the Supreme Power was Illegal and by no Law Warrantable yet the setting up Images in the place of those Sentences of Scripture which they have erazed was much worse as being repugnant and directly contrary to the Doctrine of the Church of England which has been and is approved and by our Supreme Power at present stands established by our good Laws Ecclesiastical and Civil That this may evidently appear it is to be considered 1. That the Popish Church in their Trent-Council which to them is an Oecumenical and General Council does define and command in order to their superstitious and Idolatrous Worship of them That the Images of their Saints be had and retained more especially in Churches where the poor People may see and have opportunity to worship them 2. That in the Reformation of our Church our Supreme Powers who regularly begun and piously and happily finish'd it expresly condemn'd not only the worshipping of Images but the having them in our Churches This does evidently appear in our Authentick Records to say nothing of our Learned particular Writers published by Supreme Authority to that purpose For 1. By the Injunctions of Edw. 6. it is commanded thus They shall take away and utterly destroy all Shrines c. and all Pictures Paintings and all Monuments of Idolatry and Superstition that there remain no memory of them in Walls Windows or elsewhere c. 2. And about three or four Years after in the same King's time it is by Act of Parliament expresly required That all Images graven carved or painted which yet stand in any Church should be defaced and destroyed And though this Statute in favour of Popish Superstition and Idolatry was repealed by Q. Mary yet that Queen's Statute was by good K. James repealed and to prevent and discourage Popery that Statutre of Edw. 6. was expresly revived and so remains still obligatory 3. Queen Elizabeth in her Injunctions Injunct 23. renews the Injunction of Edw. 6. in the same Words That all Images Paintings and Pictures should be taken out of all Churches c. 4. And the Homilies published by Q. Elizabeth tell us that Images de facto were taken out of Churches For the Homily says That the Churches were scowred and swept from the sinful and superstitious Filthiness which defiled them By which as appears by the said Homilies Images are principally meant 5. To the same purpose Cambden in his Life of Q. Elizabeth tells us That Images were actually removed out of our Churches by the Authority of Parliament 6. Once more the learned and incomparable Bishop Jewel in his Defence of his Apology of the Church of England doth both say and prove that Images ought not to be in any Churches or Places of God's Publick Worship By the Premisses it may and I believe does appear that in the Judgment of the Church of England Images are not to be tolerated in our Churches and Places of God's Publick Worship and therefore they were removed and defaced by the Supreme Powers Ecclesiastical and Civil declared and published in Canons of Convocation and Acts of Parliament But here it is objected by the Enemies of our Church and Reformation That our Reformers have been so zealous and indiscreetly fierce against Images that they have condemn'd the ingenious Art of Painting and even the civil Use of Images But this is a malicious Calumny and no real Consequence of our Churches Doctrine about Images as has been expresly and publickly
Doceant Episcopi Picturis erudiri confirmari Populim in Articulis Fidei commemorandis exnibus facris Imaginibus mag num fructum percipi Concil Trident. Sess. 25. in Decreta de Invocatione Sanctorum sacris Imaginibus ‖ Habak 3. 18 19. Rom. 1. 23. 25. * Canones 1 Jacobi Can. 82. †Errare meruerunt qui Christum Apostolos non in sanctis Codicibus sed pictis in Parietibus quaesiverunt August de Consensu Evangelist cap. 10. Tom. 4. pag. 377. Edit Basil. 1569. ‖ Canones 1 Jacobi can 88. * Imagines Christi Deiparae Virginis alioruÌ„ SanctoruÌ„m in Templis praesertim habendae retinendae eisque Veneratio debita impertienda Concil Trildent Sess. 25. in Decreto de Invocat Venerat Sanctorum sacris Imaginibus †See the Injunctions of Edw. 6. to all his Subjects as welâ— Clergy as laity Anno 1547. Anno Reguisuâ— 1. Injunct 29. ‖ Vide Staturum Anno 3. 4 Edvardi 6. cap. 10. * Staturum 1. Mariae cap. 2. †Staturum 1. Jacobi cap. 25. ‖ The Injunctions of Q. Elizabeth to all her Subjects Clergy and Laity Anno 1559 Regnique sui 1. Injunct 23. * See the Homily for repairing and adorning of Churches pag. 80. in the Edition of our Homilies Anno 1633. Part 2. and this Homily is approved and confirmed by the King and Convocation 1 Jacobi Anno 1603. Can. 85. †See the second Part of the Homily for the right use of Churches pag. 7. of the second Book of Homilies of the aforesaid Edition 1633. ‖ Cambden's Elizabeth Lib. 7. ad Annum 1559. pag. 17 20. of the English Edition * See Bp Jewel 's Defence of the Apology of the Church of England in his Works printed at London Anno 1621. pag. 446 447. Sol. †See the third part of the Homily against the Peril of Idolatry in the beginning of it pag. 39 of the second Book of Homilies printed 1633. ‖ In the same Homily against the Peril of Idolatry pag. 44. * Vide Statutum Anno 3 4 Edvardi 6â— cap. 10. †See the third part of the Homily against the Peril of Idolatry in the second Book of Homilies pag. 40. ‖ Deut. 4. 12 15 16 23. Isa. 40. 18. Rom. 1. 23 25. * See the last named Homily Book 2. p. 42. †Ibid. pag. â—2 ‖ In the second Book of Homilies pag. 7. * Ibidem pag. 12 13. †In the second Book of Homilies pag. 24. ‖ Ibidem pag. 42 * Ibidem pag. 43. †Ibidem pag. 45 46. ‖ Ibidem pag. 55. * Ibidem pag. 56 58 60 61. †Ibidem pag. 61 75. ‖ Ibidem pag. 65. * Ibidem pag. 72. Hab 2. 18. Rom. 1. 23 25. †Ibidem pag. 75. ‖ See K. James his Directions to the Clergy of England Anno 1622. They are in Dr. Heylin ' s Cyprianus Anglicus pag. 93. Direct 1 4. * In the 35th Article †Convocatio 1 Jacobi Can. 36. ‖ Ibidem Can. 36. * Ibidem Can. 127. †Ibidem Can. 36. ‖ My Ld Coke ' s Institutes Part 4. cap. 74. pag. 323 324. * See the Statute 13 Eliz. cap. 12. and the Statute 14 Car. 2. The Act of Vniformity †Vide Canones 1 Jacobi Can. 5. ‖ Statutum 13 Elizabethae cap. 12. * In his Book entituled Dererminatio Quaestionum quarundem Theologicarum c. printed at Cambridg 1634. Quaest. 30. pag. 130. †Concillum Constantieuse Sess. 13. ‖ Ibidem Sess. 15. * Ibidem Sess. 8. †Aquinas 2. 2. Quaest. 10. Art 2. ‖ Aquinas 2. 2. Quaest. 11. Aâ—t 3. An Haeretici sint tolerandi * De justa Haereticorum punitione lib. 2. cap. 7. Operum pag. 1244. B. †I demibidem pag. 1245. E. ‖ Leg. Cum secundum 19. de Haereticis in 60. cap. Vergentis 10. Extra de Haereticis * Leg. Statutum 15. de Haereticis in 60. †Vide praecipuc cap. ad abolendam 9. cap. Excommunicaâ—us 13. Extra dl Haereticis ‖ Vide Bullarium Romanum Romae 1638. Tom. 1. pag. 514 515. The Bull bears date Jan. 3. 1538. * Vide Bullam Pii V. in dicto Bullario Tom. 2 pag. 229. The Bull is dated at Rome 5 Cal. Maii 1570.
compass of my Calling and Profession I may and with modesty and more confidence do affirm 1. That till the pretended Nullity of the Matrimonial Contract between Patrimoniale and Gallina do upon just grounds and such as may induce a moral certainty appear no Judge can Conscientiâ Justitiâ salvis by a judicial Sentence require Mr. Cottington to Co-habit with Gallina For in this Case idem est non esse non apparere Gallina must be reputed Patrimoniale's Wife he yet living to whom she was first contracted Solemni Ecclesiae ritu and with whom she Co-habited sine querelâ a year and an half and by whom she had a Child I say she must be reputed his Wife till it appear she is not And 't is impossible that should appear till the Nullity of that first contract be legally and sufficiently proved 2. And if any Ecclesiastical Judge should decree Mr. Cottington to Co-habit with her before such Nullity which is pretended but hitherto no way proved do sufficiently and by legal and just proofs appear yet notwithstanding such Decree 't is impossible for him with a safe Conscience to Co-habit with her as his Wife Seeing for ought appears or he knows she may be anothers Man's Wife rather than his And certainly he is highly concern'd to be sure that she is indeed his own Wife before he give her that due Benevolence which without great Impiety and Adultery cannot possibly be given to any other who really is not his Wife c. Your Servant T. Lincolne PAtrimoniale and Gallina intermarry Anno 1664. and Co-habit about twenty Months and have Issue a Daughter But Gallina afterwards not liking that Marriage pretends it was Null propter vim metum and obtains a Sentence of Nullity from the Archbishop of Turin but without any defence for ought appears made by her Husband Patrimoniale or proof of the pretended force or fear And in the said Sentence of that Archbishop there is a Condition interposed in these Words viz. Saving however the solemnity required by the Holy Council and a solemn Oath to be before-hand taken before Us by the said Gallina that she contracted the said Marriage on force and for fear of her Father and that she gave not her free consent unto the said Marriage and by the Certificate annext to the Archbishop's Sentence it appears that she Swore That by the force and fear that she was put into by her Father she contracted Marriage with Patrimoniale and that in that Contract she did not give her free consent but does not swear that she gave not her consent to the said Marriage Patrimoniale afterwards marry'd another Wife and Gallina being thus separated doth in the Year 1671. marry Mr. Cottington against whom in the Year 1674. she brings an Action in Causa Matrimoniali before the Dean of the Arches here in England where she doth Alledge and prove her Marriage with Mr. Cottington to which Mr. Cottington doth answer That her first Husband Patrimoniale was and is still alive She replies 't is true but that first Marriage of hers was declared Null and Void by the Archbishop's Sentence and Mr. Cottington rejoins That that Sentence it self was Null and Void being given without proof and contrary to Law The Dean of the Arches having this Fact before him doth give Sentence for this second Marriage of Gallina and enjoins Mr. Cottington and her to Co-habit alledging that he hath no power and is not by Law to examine or question the Validity of the Archbishop's Sentence but ought notwithstanding any Defects or Nullities therein to give Sentence for this second Marriage of Gallina Mr. Cotttington sayeth That the Dean of the Arches at the time of his giving Sentence against him declared his Mind in Words to this effect viz. As a private Man I should look upon the Sentence of the Archbishop of Turin for dissolving the Marriage between Patrimoniale and Gallina to be an irregular wrongful and an unjust Sentence but as I am a publick Minister I must look upon it as good against Mr. Cottington because all Sentences given beyond Sea by any equal Court I ought to look upon as good whether good or bad having no power to reverse or examine them and therefore ought to cast Mr. Cottington in this Case It is not on Mr. Cottington's part denyed but that when he Married Gallina he knew of her being Married to Patrimoniale and of Patrimoniale's being still alive when he the said Cottington marry'd Gallina nor is it alledged and proved by Gallina in this Cause here in England that she at any time made any Protestation of the pretended force and fear she was under or that she used any endeavours to escape from Patrimoniale when she was in a safe place and might have escaped from him if she had pleased but on the contrary her Co-habitation with Patrimoniale for about twenty Months and her having had a Child by him in that time and her having the usual liberty of Women in a Married Estate during that Co-habitation hath been proved in the Court of Arches by her own Witnesses But Mr. Cottington being unwilling to make unnecessary contests with the Sentences of Courts and being now fearful of offending God or his own Conscience doth most humbly request the Reverend Doctor Richard Allestry the Regius Professor of Divinity in the University of Oxford to give him his Opinion whether the matter of Fact being true according to the Premisses he the said Cottington may Salvâ Conscientiâ Co-habit with Gallina as his Wife Supposing this Case justly stated and the matters of Fact true according to the Premisses I conceive the marriage of Patrimoniale and Gallina especially being ratified by such Co-habitation and the effects of it valid and firm And consequently notwithstanding any Sentence of Nullity that she is his Wife and therefore that no other person can Co-habit with her Salvâ Conscientiâ as with a Wife October 11th 1677. Richard Allestry MR. Cottington having desired the Opinion of Dr. Hall the Lady Margaret's Professor of Divinity in Oxford to the same case propounded to him as was to Dr. Allestry the Regius Professor there Dr. Hall gave his Opinion thereupon as followeth viz. As this Case is Stated I conceive that the Marriage of Patrimoniale and Gallina is not Null and therefore Mr. Cottington cannot with a safe Conscience Co-habit with Gallina as his Wife Jo. Hall Mr. Cottington for his further information sent the following Case to the Doctors of Sorbonne and had the following return from them LUcius an English Man Marries Sempronia an English Woman in England according to the Laws and Customs of the Church of England and she Co-habits with him about a year and a half and has a Child by him and afterwards she makes Application to Titius the Bishop of the Diocess in England and alledges before him that her Marriage with Lucius was made by fear and force of her Father and therefore desires that he by his
the Index of a Manuscript of Collections by Sir Julius Caesar Fol. 277. is referr'd to under his own hand in which Fol. is contain'd as followeth The Book is markt on the outside A. A. 10. UPon the Treaty with Gray Lord Chandois it was thought meet that 16500 l. should be alloted to the Lady for her right to the value of 14500 l. in Land and 2000 l. in Money But in regard the whole Estate moved from the Lady and that Sir John was able to give her no Advancement or Dower out of his Estate it was thought meet that the Lady should have 8000 l. at her sole dispose and the residue to be at their joint dispose After upon motion on the Lady's behalf out of a fear that the Estate might be wasted by Sir John and thereby she deprived of maintenance she then having on knowledge of the Marriage in Scotland or hope of a Divorce or Nullity of the said Marriage it was appointed that the same should be conveyed over to certain Feoffees in trust to her use that she by her Indenture under her Hand and Seal solely and without Sir John might dispose thereof The which conveyance was directed by three living of this Honourable board viz. The Lord Treasurer the Lord Privy Seal and the Lord Stanhope and by the Lord Popham Lord Tanfield Sir Thomas Hesketh Serjeant Dodridge and Mr. Stephens The Land allotted the Lady being sold for 7800 l with 6500 l. thereof Barn-Elmes was purchased but Sir John being trusted by the Lady to go to Mr. Stephens to draw the conveyance went to other Councel and in the clause where it should be freely at the Lady's disposal solely without Sir John he caused to be inserted these Words That the Lady should have power to convey the same to such intents and purposes as by the said Elizabeth solely and without the said Sir John Kennedy by writing under her Hand and Seal enrolled should be limitted and appointed Wherein besides the contradictariness of the Sence he caused in that Deed delivered the Lady the more to blind her Eyes enrolled to be razed and made indented Deed. 31. Decemb. 3. Jac. And after the Rasure was found out then by his Deed Dat. 2. Julij 4. Jac. he the said Sir John did limit power to the Lady by her Deed inrolled or not inrolled to limit uses The Lady hath been a Suiter two years if Sir John for saving his own Credit will not confess matter to make a Divorce then that in course of Justice she may be admitted to her proof which for that it concerneth matter of State as is suggested she is denyed 1. And therefore she hopeth it is but the same equity to stay his proceeding touching her Estate against her or her Feoffees in Course of Justice considering it is not by her lachess that the Marriage is not disproved untill both the said causes having a dependency one upon another may be handled at this Board 2. The course of Conveyance by Feoffees was by Honourable Personages Grave Judges and Learned Lawyers directed when the Lady was supposed the true Wife of Sir John and they held in Law and Equity sufficient and now à fortiore it should be more sufficient she being none of his Wife if she may be admitted to proofs 3. Sir John hath already advanced himself by the Sale of the Lady's Estate over and above the purchace of Tonbridge which cost 8500 l. wherein he hath a a joint Estate of Inheritance and all her Debts that he hath paid 7500 l. 4. If the course propounded at this Honourable Board shall not hold then will the Lady never assent to Sell and so shall the Debts of the Lady before Marriage now resting unpaid being 2207 l. and Sir John's own Debts rest unsatisfied to the oppression and clamour of many poor Men and the King still troubled with renewing his Protections 5. If Sir John should proceed in course of Justice and that the conveyance made to Feoffees should not be held sufficient and strong enough to convey the same to the Lady yet Sir John can have but the profits thereof being but 300 l. per annum and not that clear which is not able to pay half the use of the Money 6. Besides before any Sute began the said Mannor of Barn-Elms was for valuable consideration of Money lent Mortgaged and now resteth forfeited for Non-payment of 2000 l. In the Index of Sir Julius Caesar's Manuscript of Collections Fol. 280. is under his own Hand referr'd to in which Folio is contain'd as followeth The Book is markt on the outside A. A. 10. 'T is in the Index writ with his own Hand in relation to Fol. 280. Whether an English Jurisdiction may disanull a Marriage solemniz'd in Scotland A. B. a Scotchman in a Parish Church in Scotland publickly in the presence of the Congregation solemnizeth Marriage with a Scotchwoman About six or seven years after the said Marriage the Scottish Woman pretending that at the time of her Marriage she was but Ten years Old or at the least under Twelve before certain competent Judges in Scotland procureth a sentence of Divorce to be given against the said A. B. whereby the Marriage between A. B. and her was pronounced to be void and of no force and that she was at liberty to Marry again to any other upon this ground That she was under Twelve years of Age at the time of her Marriage and that she never consented thereto after she was Twelve years Old nor had Carnal knowledge of the said A. B. from which Sentence no appeal or provocation was made Afterwards the said A. B. coming into England did solemnize Marriage with an English Woman the Scottish Wife being then living after which marriage the said A. B. and the English Woman for certain years Co-habited together here in England as Man and Wife the said English Woman being ignorant of the premisses done in Scotland During the time of which her Co-habitation with the said A. B. the Scottish Woman dieth After whose death the English Woman being certified that A. B. had another Wife living when he married her so as he could not be her lawful Husband at the time of her Marriage the said A. B. and she dwelling both in England she refraineth from the company of A. B. and complaineth to the Ecclesiastical Judges in England having Jurisdiction in the place where the said A. B. and she dwelleth and craving Justice offereth to prove that the said A. B. and the said Scottish Woman were lawfull Man and Wife and after the said Marriage had Carnal knowledge of each other and that they Co habited together as Man and Wife five or six years after she was Twelve years of Age admitting she had been under that Age at the time of the Marriage and desireth to be admitted judicially according to the ordinary course of Law to alledge and prove her aforesaid Assertions before the said Judge and upon proof thereof to
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
doubt not will be faithful in his Promises this secures me against such Fears and makes me willing to believe that the impious Popish Principles shall never be put in Execution in England Dirum omen qui solus potest averruncet Deus And because in these Times many who would be thought Wits and who by the Vanity and Loosness of their Principles have been tempted to malign the Clergy in general and have made the Priest-craft a Term in vogue it is thought seasonable to stop such Persons in their Career towards Atheism by letting them see from what Forge the virulent Expression of Priest-craft came Nor yet is this late Reverend Bishop's Testimony given in his Letter against the Rebellion of 41 fit to be conceal'd To … c. My Honoured Friend I Received yours and return what is most due for that and many more Civilities my hearty Thanks News here we have none and so I cannot requite your Kindness by sending you what you so kindly send me Intelligence You have seen I believe Machiavel's Works translated out of Italian or Latine in English which came out the last Year 1675. The Printer in the second Page says it was Licensed but tells us not by whom In the end of it there is a Machiavel's so 't is pretended in Vindication of his Writings That Letter indeavours two things 1. To magnify Democracy as the best Government and decry Monarchy 2. To decry the Clergy in general not only those of Rome as a sort of People so far from holy that they have nothing left of Integrity or Humanity He tells us of an execrable innate ill Quality inseparable from the Priest-craft and the Conjuration or Spell of their newnvented Ordination and would have them rooted out so as not one Sibra were left c. When t was printed by whose Authority or Advice I know not a considerable Piece one whole Leaf in Folio was left out which I have in MS. and do here enclosed send you a Copy of it The business of that Piece which is left out is to tell us what is not Rebellion so he pretends and if his Principles be true we have had no Rebellion in England this 40 Years My humble Service to your Neighbour and my honoured Friend I am in extreme haste and Q. Coll. Oxon. May 11 1676. Your affectionate Friend and Servant Tho. Lincolne Omitted out of Machiavel's Letter in Vindication of himself and his Writings between pag. 4 5. NOW having gone thus far in the Description of Rebellion I think my self obliged to tell you what I conceive not to be Rebellion Whosoever then takes up Arms to maintain the Politick Constitution or Government of his Country in the Condition it then is I mean to defend it from being changed or invaded by the Craft or Force of any Man altho it be in the Prince or Chief Magistrate himself Provided that such taking up of Arms be commanded or authorized by those who are by the Orders of that Government legally intrusted with the Custody of the Liberty of the People and Foundation of the Government this I hold to be so far from Rebellion that I believe it laudable nay the Duty of every Member of such Common wealth for he who fights to support and defend the Government he was born and lives under cannot deserve the odious Name of Rebel but he who endeavours to destroy it If this be not granted it will be in vain to frame any mixt Monarchies in the World yet such is at this Day the happy Form under which almost all Europe lives as the People of France Spain Germany Poland Sweedland Denmark c. wherein the Prince hath his Share and the People theirs which last if they had no means of recovering their Rights if taken from them or defending them if invaded would be in the same Estate as if they had no Title to them but lived under the Empire of Turkey or of Muscovy And since they have no other Remedy but by Arms and that it would be of ill consequence to make every private Man judg when the Rights of the People to which they have as lawful a Claim as the Prince to his are invaded which would be apt to produce frequent and sometimes causless Tumults therefore it hath been the great Wisdom of the Founders of such Monarchies to appoint Guardians to their Liberty which if it be not otherwise express'd is and ought to be understood to reside in the Estates of the Country which for that reason as also to exercise their Share in the Soveraignty as making Laws levying Monies are frequently assembled in all these Regions in Europe before mentioned These are to assert and mantain the Orders of the Government and the Laws Establish'd if it cannot be done otherwise to arm the People to defend and repel the Force that is upon them Nay the Government of Arragon goes farther and because in the Intervals of the Estates or Courts many Accidents may intervene to the prejudice of their Rights or Fueros as they call them they have during the Intermission appointed a Magistrate called Justitia who is by the Law and Constitution of that Kingdom to assemble the whole People to his Banner whenever such Rights are incroach'd upon who are not only justified by the Laws for such coming together but are severely punishable in case of Refusal So that there is no question but that if the Kings of Arragon at this day very powerful by the Addition of the Kingdom of Naples and of Sicily and the Union of Castile should in time to come invade their Kingdom of Arragon with the Forces of their new Dominions and endeavour to take from them the Rights and Priviledges they enjoy lawfully by their Constitution there is no question I say but they may tho their King be there in Person against them assemble under their Justitia and defend their Liberties with as much Justice as if they were invaded by the French or by the Turk for it were absurd to think since the People may be legally assembled to apprehend Robbers nay to deliver a Possession forcibly detained against the Sentence of some Inferiour Court that they may and ought not to bestir themselves to keep in Being and preserve that Government which maintains them in possession of their Liberty and Property and defends their Lives too from being Arbitrarily taken away But I know this clear Truth receives Opposition in this unreasonable and corrupt Age when Men are more prone to flatter the Lusts of Princes than formerly and the Favourites are more impatient to hear the Impartiality of Laws than the Sons of Brutus were who complained Leges esse surdas that is though they were fine Gentlemen in favour with the Ladies and Ministers of the King's Pleasure yet they could not Oppress Drink Whore nor Kill the Officers of Justice in the Streets returning from their Night-Revels but the Execution of the Laws would reach them as well as