declared both by our Church and State For 1. Our Church has declared her Judgment that all Images are not absolutely unlawful or simply forbidden in the New Testament but only some in some Places and Circumstances when they may especially to poor ignorant People be dangerous Occasions of Superstition and Idolatry and more expresly a little after the Words are these We are not so scrupulous as to abhor Flowers wrought in Carpets Hangings Arras c. or Images of Princes on their Coin nor do we condemn the Art of Painting or Image-making c. Whence it is evident that our Church is neither against the Art of Painting nor any Civil Use of Images 2. Our State has by express Act of Parliament declared even in the time of our Reformation That they did not condemn any Civil Use of Images For even in that Statute in which they severely condemn and command the defacing Images in Churches they have this Proviso Provided always That this Act shall not extend to any Images or Pictures set or engraven on any Tomb in any Church Chappel or Church-Yard only for a Monument of any King Prince Noble Man or any other dead Person which hath not commonly been reputed for a Saint but that all such Images may continue Whence it is evident that our Church at the Reformation did not condemn any Civil Use of Images no not in sacred Places as Church-Yards Chappels or Churches much less in other Places And that we may more distinctly know what Images they condemn'd and why they would not tolerate them in Churches It is further to be considered 1. That the Church of England absolutely condemns all Images of the Trinity or any Person in it Father Son or Holy Ghost as absolutely unlawful and expresly condemned in Scripture Such Images are not to be tolerated neither in nor out of Churches 2. No Images of our Blessed Saviour of any Saints and Martyrs which with stupid Superstition and Idolatry have been and still are worshipped in the Popish Church are in the Judgment of our Church to be tolerated in our Temples or any Place of God's publick Worship For if they be it will be to the great and unavoidable danger of Idolatry This I conceive is the approved and received Doctrine of the Church of England and that it may more plainly and distinctly appear to be so I shall cite the Judgment of our Church and her Reasons for it in her own express Words and amongst other things too many to be transcrib'd she plainly tells us 1. That it is an ungodly thing to set up Images or Idols which in her Judgment signify the same thing in our Churches because it may give a great occasion of worshipping them 2. That Images in Churches painted on Clothes or Walls are unlawful and contrary to Christian Religion 3. That setting up Images in Churches is to the great and unavoidable danger of Idolatry and that the Law of God is against it 4. That the setting up the Image of God of our Blessed Saviour or any Saints is not tolerable in Churches but against God's Law 5. Wo be to the setters up and maintainers of Images in Churches 6. It is not possible if Images be in Churches to avoid Idolatry 7. Images of God our Blessed Saviour and the holiest Saints are of all others the most dangerous to be in Churches 8. Images in Churches are a Snare and tempting of God to the great danger and destruction of many 9. That Images in Churches in the Judgment of the Prophet and Apostle are only Teachers of Lies 10. God's horrible Wrath cannot be avoided without utter abolishing Images in Churches This is evidently the express Doctrine of our Homilies which absolutely condemns not only the worshipping but having Images in our Churches And it is no less evident that the Homilies and the Doctrine contained in them are both approved received and established by the Supreme Authority of our Church and State Canons of Convocation and Acts of Parliament This will appear 1. By the Testimony of King James who commends the diligent reading of our Articles and Homilies set forth by the Authority of the Church of England 2. By the Convocation of Q. Elizabeth the Supreme Ecclesiastical Power which expresly and particularly names and approves all our Homilies and declares the Doctrine contained in them to be a godly Doctrine as appears by the Articles of our Church composed and published in that Convocation 3. By the Convocation I Jacobi For as the Article last named declares our Homilies to contain a godly Doctrine so the Convocation of King James declares all things contained in that Article to be agreeable to the Word of God 4. All the Clergy of England all Graduates in the Universities all Chancellors Commissaries and Officials before they exercise any Ecclesiastical Jurisdiction are willingly and ex animo to assent consent approve and subscribe these Articles and this Doctrine and that absolutely without any Glosses or Senses of their own 5. And these Subscriptions are required and so the Doctrine subscribed to confirm'd by several Acts of Parliament 6. And if any impugn this Doctrine so declar'd and establish'd by the Supreme Power or maintain any Doctrine contrary or repugnant to it he is by our Canons to be excommunicated ipso facto and by the Statute if he be a beneficed Clergyman deprived The Premisses being certain and evident Truths the natural and necessary Consequences which follow from them to omit others will be these 1. That neither the Deputy-Chancellor of Lincoln nor any inferiour Court has or can have any just Authority or Power to approve and authorize the setting up of such Images in the Church which by the Supreme Power Ecclesiastical and Civil in Convocation and Parliament is expresly condemn'd as altogether unlawful and to the poor ignorant People pernicious 2. That they who maintain and encourage this Doctrine of setting up Images in our Churches if they persist in it are by our known Laws now in Force to be excommunicated ipso facto and if they be beneficed Clergy-men to be deprived Viderint quorum interest 3. And if any Ecclesiastical Judg or Court quod absit should approve authorize or encourage the setting up of such Images in our Churches it evidently follows from the Premisses that in so doing they approve and authorize that which the Church of England has publickly declared to be dangerous against the Law of God against Christian Religion and to many pernicious And therefore we have reason to believe that no good Son of the Church of England will approve authorize or encourage that which his Holy Mother has so absolutely and publickly condemned A Friend of the late Bishop of Lincoln's observing how customary it is to Protestant Writers to charge on the Papists the Tenet of Dominium fundatur in
Gratiâ requested his Lordship to resolve him how far the said Tenet is chargeable on the Church of Rome And thereupon his Lordship was pleased to send him under his own Hand a Paper writ as followeth Quaeritur An Dominium fundetur in Gratia IN Answer to this I shall say only a few things which to me seem certain and evident Truths 1. The Question must be held Negatively Dominium non fundatur in Gratia Neither Dominium Temporale of Kings or Lay-Magistrates nor Dominium Spirituale of the Bishops and Clergy This has been evidently proved by many of our Divines especially and clearly by Dr. Davenant Bishop of Salisbury 2. The Papists who are both the Accusers and Judges do impute this Opinion to Wickliff and Hus and their Followers and condemn the Opinion and them for it as Hereticks for saying that Dominium fundatur in Gratia which is a manifest Calumny and no just or proved Accusation as might be proved out of Hus his printed Works and several Manuscript Works of Wickliff in Bodley's Library But they bring these lying Accusations against them that they may have some pretence to destroy and murder them 3. That erroneous and impious Council of Constance Anno 1413 which is an Oecumenical and General Council at Rome having confess'd that our Blessed Saviour did institute the Eucharist in both kinds they blasphemously add Quod non obstante Institutione Christi they decree That the Sacrament should be taken only in one kind Whence Luther would not call it Concilium Constantiense but Concilium NON-OBSTANTIENSE Now this Council condemns this Proposition Dominium fundatur in Gratia 1 st In John Hus and his Followers 2 dly In Wickliff and his Followers 4. I do not find any Popish Author who affirms and approves this Proposition Dominium fundatur in Gratia in those very Terms in which the Council of Constance had condemned it as Heretical For this were to contradict their own Principles and approve that for Truth which their Supreme Infallible Guide a General Council had Synodically declared Heresy 5. But the Church of Rome though in other Terms doth both profess and practise this Doctrine that Dominium fundatur in Gratia For they say that Dominium fundatur in Fide Religione Catholica so they miscal Popery or the Roman Religion so that if any Man by Apostacy desert their Religion or by Heresy deny any Article of their Faith he does not only forfeit his Dominion over his Inferiors but all his Goods and Livelihood and his Life here and eternal Life hereafter This is the erroneous and impious Doctrine of the Church of Rome approved and vindicated not only by their Schoolmen Casuists Canonists Summists c. but received into the Body of their Canon-Law in their last and as they say the most correct Editions of it and declared and confirmed in their General Councils That this may appear I shall of many hundreds give you some few but pertinent and great Instances 1. Aquinas says PRINCIPIBUS apostatantibus a Fide non est obediendum And again when such an Apostate Prince is excommunicared Ipso facto ejus Subditi à dominio juramento fidelitatis ejus liberati sunt And a little before Haereticus non solum excommunicari sed juste occidi potest excommunicatus ulterius relinquitur judicio saeculdri à mundo exterminandus per mortem His Commentators do believe and as far as they are able justify this Doctrine 2. Alphonsus à Castro is very large and learned on this Subject and proves first That for Heresy a Father does lose the Dominion and yet that Dominium is jure Naturae Patri debitum which he had over his Children Propter Haeresin says he Pater amititt Jus quod habuit super filios c. And again Dominium Politicum amittitur per Haeresin it a quod Rex factus Haereticus ipso jure est Regno suo privatus Dux suo Ducatu c. 3. Nicolaus Eymericus in his Directorium Inquisitorion Parte 2 3. and Francis Pegna his Commentator do assert all and more than I have said and out of many Popish Canons and Councils and Papal Constitutions fully prove it 4. The Canon Law tells us That Bona Haereticorum sunt ipso jure confiscata and not only so but their Children are made incapable of any Benefice or Office Ecclesiastical or Civil Haereticorum filii usque ad secundam generationem ad aliquod beneficium ecclesiasticum seu publicum officium ne admittantur quod st secus actum fuerit sit irritum There are many other Constitutions in their Canon Law which expresly declare that Hereticks that is such as deny any Article of their Popish Creed lose all Dominion Ecclesiastical and Civil of which they were justly possessed before they fell from the Popish Faith into Heresy as they call it 5. Lastly Their Concilium Lateranum Magnum sub Innocentio III. in which there were for so they tell us about 1200 Fathers I say this great Council which they acknowledg to be General or Oecumenical expresly declares That an Heretick tho a King or Emperour does by his Heresy forfeìt all his Dominion and therefore with them Dominion must be in Fide fundatum that is in their Apocryphal Popish Faith For if believing and continuing in that Faith do preserve their Dominion and the rejecting it by Heresy forfelt it then it necessarily and evidently follows that their Roman Catholick Faith is the Foundation of their Dominion and the Cause which preserves it as Here 's is the Cause why they lose it And as this is their Popish impious Doctrine that not only Subjects but Supreme Governors Kings and Emperors forfeit their Dominions by Heresy so the Practice of their Popes has in this case been suitably impious and sinful I need not go far for evident Instances in particular Paul III. excommunicates our Henry 8 for Heresy absolves his Subjects from all Oaths of Allegiance and declares him to have lost all Right to his Dominions So Pius V. for the same reason because Q. Elizabeth was an Heretick excommunicates and deposes her and gives her Kingdoms to Philip the 2 d of Spain who came with his great Armada and the Pope's Benediction which brought the Curse of God upon him and his Fleet for there is no Power or Policy against Providence to take possession of it in 1588. In prosecution of these Principles many hundred thousands have been actually murdered in the Papacy either 1. By open War as in France and the Countries adjoining in Ireland in our late Rebellion c. 2. By their bloody Inquisition 3. Or endeavour'd to be murdered by secret Conspiracies as in our Gun-Powder Treason and many Conspiracies against Q. Elizabeth and our late gracious Soveraign But his Sacred Majesty having graciously promised to maintain the Church of England as it is by Law establish'd who has ever been and I
Herculeas ultra quem jactat rauca columnas Famasnec officio par lamen illa suo En libi BARLOUM potuit quae Sculptor at ipsa Arte licet claram vincit ut umbra manum Ora venusta vides et nobilis Atria mentis Quod nitet interius nulla Tabella dabit The Tullie 〈◊〉 SEVERAL Miscellaneous and Weighty Cases of Conscience Learnedly and Judiciously Resolved By the Right Reverend Father in God Dr. THOMAS BARLOW Late Lord-Bishop of Lincoln VIZ. I. Of Toleration of Protestant Dissenters II. The King's Power to pardon Murder III. Objections from Gen. 9. 6. answered IV. Mr. Cottington's Case of Divorce With the Judgments of Dr. Allestrey Dr. Hall Sir Richard Lloyd Sir Richard Raines Dr. Oldys and the Doctors of Sorbonne upon the same V. For Toleration of the Jews VI. About Setting up Images in Churches VII An Dominium fundatur in Gratiâ With two Pages omitted in the English Machiavel and his Lordship's Censure thereupon London Printed and sold by Mrs. Davis in Amen-corner 1692. The Bookseller's PREFACE to the Reader THE Reader may be pleased to take notice that the following Tracts were written by the late Eminent and Learned Father of our Church Dr. Thomas Barlow Lord-Bishop of Lincoln and printed from MSS. written with his own Hand The Occasions these I. The Case of the Lawfulness of Toleration of the Jews was writ at the Request of a Person of Quality in the late troublesome Times when the Jews made Application to Cromwel for their Re-admission into England II. The Case of Toleration of Christian Dissenters was written to and at the Request of the Honourable and Learned Mr. Robert Boyle 1660. soon after the Restoration of K. Charles II. III. Whether it be lawful for his Sacred Majesty K. Charles II. to reprieve or pardon a Person convicted and legally condemned for Murder written upon occasion of Mr. John's being unfortunately convicted for the unhappy Death of Sir William Estcourt Bar. IV. The Case of Murder in Answer to an Objection then made from Gen. 9. 6. That Kings have not Power to pardon Murder V. Mr. Cottington's Case concerning the Validity or Nullity of his Marriage with Gallina her former Husband then living 1671. Mr. Cottington applying himself and Mr. Brent coming from the then Earl of Danby to request his Lordship's Opinion therein With a further Resolution of the same as also the Judgments of Dr. Allestrey Dr. Hall now Lord-Bishop of Bristol Sir Richard Lloyd Sir Richard Raines Dr. William Oldys and the Doctors of Sorbonne at Paris in point of Law and Conscience upon the same VI. A Breviate of the Case concerning setting up Images in the Parish-Church of Moulton in the Diocess and County of Lincoln 168 ¼ Writ upon occasion of this Learned Bishop's being cited before the Dean of the Arches for suffering such Images to be defaced c. And upon reading of which Case so truly and evidently stated the whole Prosecution which was then violently and virulently enough carried on against him was stopp'd VII Whether that Dominion is founded on Grace be a Tenet chargeable on the Church of Rome VIII One Folio Leaf omitted out of Machiavel in English with the Bishop's Censure thereupon The Reader may please to observe in Mr. Cottington's Case the Counsel use the Name of Frichinono for the Husband of Gallina which was his proper Name but the Bishop that of Patrimoniale which was the Title of his Publick Office and by which latter he was frequently known and called by at Turin The Resolution of this Case may be of great use it being never so fully stated before Davila tells us in his fifth Book that Hen. 4. was married to Q. Margaret at Nostredame by the Cardinal of Bourbon in Presence of the whole Court and she was given in Marriage by Charles 9. her Brother and after a long Cohabitation the Cardinal of Joyeuse the Pope's Nuncio and the Arch-Bishop of Arles being delegated by the Pope nulled the Marriage propter vim metum Q. Margaret alledging she was forced to it by her Brother And the Sentence gave liberty to the King and Queen to marry whom they would And accordingly the King afterwards married Mary of Medicis one of whose Daughters was Henrietta Maria the Wife of our K. Charles I. and Cardinal D'Ossat justified the Legality of this Sentence tho there had been no Cause shewn But the Law of Nations does not oblige our Courts to execute or pronounce Sentence according to Foreign ones Now tho the Bishop gave these Cases to his Friends when first writ with his leave to print them yet they fearing some of them might prejudice his further Promotions in the Church in those Days forbore Publication of them Tho we must do his Lordship this Right to aver that he had no regard to that so careless was he of the Event of any Action he thought himself obliged to do Religionis causâ that he has been often heard to say occasionally as a kind of Principle viz. He who thinks to save any thing by his Religion but his Soul will be a Loser in the end And his Lordship lived to see the Church of England of his Opinion in being indulgent to Dissenters for in that incomparable LETTER TO A DISSENTER written by the best and noblest Pen of our Age and upon the Measures of that Church in the Reign of K. James II. the Dissenters are told in express Words That the Church of England is convinc'd of its Error in being severe to them THE CASE of a TOLERATION IN Matters of Religion To the HONOURABLE ROBERT BOYLE Esq SIR IT is now a good while ago since you gave me command for so your Desires are and shall be to me to give you my Opinion in writing concerning the Toleration of several Religions or Opinions in a well-governed Church and State And though it matters not much what my Opinion be and besides my many Disabilities both of Body and Mind the little time I have by reading or meditation to collect more or digest those Notions I have renders me uncapable of saying much or indeed any thing which you do not know already yet in obedience to your command something I shall say for Cur me posse negem quod tu posse putes which may be an argument of my confiding in your Candor and Goodness and of my daring to trust you with all my Infirmities and an evidence not of my ability but willingness to serve you In short then I shall give you some of my Thoughts concerning Toleration tho not in that exact order and method not with that clear explication and confirmation of the Truth as I really desire and the Subject deserves I say then I. The Toleration we speak of is a Toleration of several Religions or several Opinions concerning it and therefore Atheists if there be any such come not under it For he who acknowledges no God cannot possibly be of any Religion which essentially
Multitudo peccantium poenam tollit licet non peccatum As it is impossible to punish universally so 't is ever dangerous to punish a major or any great and considerable part of a Community Defensio communis furoris est furentium multitudo And I believe whereever Protestants are tolerated in Popish or Catholick Countries 't is from this principle That they do not think it prudent or safe for themselves to persecute the Protestants within their Territories It has been and is the opinion of wise men that the Spaniard by a mild and moderate Toleration might have compassed that in the Netherlands at the beginning which unhappily taking the contrary way hath cost him so vast a proportion of Treasure and Blood and is not compassed yet nor ever like to be This particular will be considerable in the present condition of this Kingdom wherein by the unhinging of all Government and an unhappy Civil War Papists Schismaticks and Sectaries are multiplied into so great a number that possibly it may be more safe for the publick to pardon than punish to grant a moderate Toleration than run the hazard of further divisions and bloodshed This I only propose in thesi to be considered But in hypothesi what is particularly most fit to be done in this time and Nation I shall not be so confident as to undertake the determination but according to my duty leave it to the great prudence of those to whom God has given a greater measure of understanding and authority for such a business and constantly pray for a blessing upon their endeavours in setling this divided Nation 2. But admit that the numbers of those who dissent from the Religion established in a Nation be not so great nor their Qualities and Assistants so considerable as that the State need fear any new War or publick disturbance Is the Magistrate then bound in prudence and piety to punish or may he without violation of either tolerate To answer this we must consider 1. The nature of the punishments to be inflicted 2. The nature of the false Religions or Opinions for which they are inflicted The first All punishments to be inflicted are either Ecclesiastical or Civil The 1. Spiritual in foro interno ex Potestate clavium to be inflicted by the Church by those who have Spiritual jurisdiction and are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and Stewards of Gods Houshold 2. Temporal in foro externo jure gladii and belong to the Civil Magistrate as he is Custos Vindex utriusque Tabulae Now for the first of these I say further that the Church has no Commission from Christ or his Apostles or any practice of the Primitive Church to punish any man either 1. With loss of Livelihood by Pecuniary Mulcts or Confiscations 2. Nor loss of Liberty by Imprisonment 3. Nor loss of Life by Capital punishment The saying is old and true admitted by all sober Protestants Dominium non fundatur in gratia Pagans and Infidels have a good title to their Patrimonies and a just propriety in their Estates real or Personal to become Christians neither gives them a new nor confirms their old title So that if they turn Hereticks or which is worse Infidels they do not forfeit their livelihood much less their liberty or life the Church may per modum paenae take away what on condition they gave if that condition be not made good Our admission into the Church by Baptism gives us Communion with the Church and a right to all those Spiritual advantages for Heaven which are dispensed in it as hearing the Word receiving the Sacrament Absolution upon a serious and real penitence c. these the Church gave and for heresie or impiety may take away but no more If any Bishop or Church-Officers have any further power as to imprison lay Pecuniary Mulcts c this they have ex Indulgentiâ Principum not from Christ but the Civil Power of the Commonwealth where they live 2. This being so I observe further that the persons we now speak of as Papists Schismaticks and Sectaries dissenting from the Established Religion need no toleration or grant of Impunity as to Church-Censures or Spiritual punishments as not being liable or any way obnoxious to them For the Church having no power to punish any save those of her own Body by Penance Excommunication c. of which the persons we now speak are not as neither acknowledging the Churches power nor living in Communion with her it follows that as she hath no power to punish them they not being Members of her Body so they have no need of a Toleration or Act of Impunity as to Ecclesiastical punishments to which on the supposition now made they are not obnoxious And if the Church should Excommunicate them it were but at least in their opinion Brutum fulmen and vanae sine viribus Irae they would value the Excommunication of our Church no more than we value theirs that is nothing at all 3. So then the Impunity this Toleration we nowspeak of must give is from temporal punishments inflicted by the Civil Magistrate Now before we can determine what Impunity such a Magistrate may give to men of a false Religion for so all differing from that publickly Established are in this case presumed and supposed to be we must consider the nature and condition of the Religions or Opinions to be tolerated And here I conceive 1. That no State should or will grant a toleration to any Religion which contains any thing in it which may be destructive to the Civil peace and safety of it self Salus Populi is in all States Suprema Lex the Supreme Law and utmost end of all Authority This publick safety may and must be secured though if there be no other way with the ruin of Particulars For as in the Body Natural if Fingers or Toes Legs or Arms c. are so corrupted and gangrened that they indanger the whole body Ense recidantur c. they are not to be tolerated but torn off So in the Body Politick or Commonweal if any persons maintain such a Religion as is not consistent with the publick safety as it were imprudence in the Magistrate to grant so it were irrational for them to ask or expect a Toleration For why should any power tolerate that which will ruin it self Upon this account it will be hard to tolerate 1. Such Anabaptists as deny all Magistracy for such there have been and are for why should any Prince own and protect them as subjects who will not obey or own him as their Prince 2. Such as make it a part of their Religion to believe all Oaths unlawful and so will take none for such there are whether really or in pretence I know not for on this account they will refuse all Oaths of Allegiance And then what tye or obligation can the Prince lay upon them whereby he may be secured of their Loyalty And then why should a Prince
secure them by a Toleration of Impunity who will not secure him of their Loyalty 3. Such especially if their number be considerable as by the Principles of their Religion think all War unlawful as being contradictory to the charity of the Gospel and by consequence must deny their Prince any Personal assistance in his Wars though he and his Kingdom be in the utmost hazard and necessity For if Subjects be once of this opinion that they will not fight for their King and Country the Prince is left to be inevitably ruined by the next Invader It being an easie matter to ruin that Prince whose Subjects will not fight for his preservation 4. Such who although they allow and will take an Oath of Allegiance yet by the Principles of their Religion acknowledg a power which can absolve them from that Oath and arm them against their Prince depose him and dispose of his Kingdom nay of all the Kingdoms of the world For in such a case the Prince can never be secure of their Loyalty to him or the publick safety against them This the Papists do as appears by General Councils of their own and the most Authentique they have and amongst their greatest Authors not to trouble you or my self with any more Bellarmine tells us Non potest Papa ut Papa Ordinarie Principes deponere … tamen potest mutare regna vim auferre alteri conferre tanquam summus Princeps Spiritualis si id necessarium sit ad animarum salutem What safety can a Prince have who has such people for his Subjects who acknowledg the Pope to be Summus Princeps above all Kings so that they are indeed not absolute or supreme but feudatory Princes and that so far above them that they may dispose of and give away their Kingdoms Si id necessarium sit ad animarum salutem Now he himself being Judge of this necessity if he had power he can never want a pretence to depose any King especially if he be a Protestant and so with them an Heretick Nay if he be no Heretick yet he can depose him for much less faults so Gratian tells us that Pope Zachary deposed the King of France Non tam pro suis iniquitatibus quam pro eo quod tantae potestati esset inutilis Nor is this a singular example for he there adds Quod etiam ex authoritate frequenti agit sancta Ecclesia And if this Summus Princeps decree the deposition of any King you may be sure he is to be obeyed So Pope Stephen tells us in the same Gratian Nulli fas est vel velle vel posse transgredi Apostolicae sedis praecepta c. Nor must we wonder at this for Pope Agatho tells us that the Papal Sanctions must irrefragably be obeyed seeing with them the Popes Decretals pass for Canonical Scriptures and that in the strictest sense of the word Canonical as if St. Peter himself had writ them Sic omnes Apostolicae sedis sanctiones accipiendae sunt tanquam Ipsius Divini Petri voce firmatae And indeed the Excommunicating of Queen Elizabeth and encouraging the Spaniard to take possession of her Kingdom the murdering of great Navarre in France approved by the Pope in consistory and the Powder-Plot In England are sad Examples of this truth too evident to be false and too fresh to be forgotten 'T is true Bellarmine saith that the Pope cannot dispose of Temporal Kingdoms Directè and Ordinariè but only indirectè in ordine ad spiritualia and extraordinarie which is no solution but a plain concession of what we object For if he may do it extraordinariè and Indirectè then 't is evident he may do it in their opinion and then how can a King be secured against the rebellion of such Subjects and his own deposition that one side of the distinction cannot do it so long as the other may Whether it be done directè or indirectè 't is all one he is deposed If my enemy should tell me he could not run me thorough with the one end of his Sword meaning the Hilt what security were that to me when he may do it with the point If I am kill'd 't is no matter which end of the Sword did it Sure I am as my enemy if he have a mind to kill me will make use of the point of his Sword so the Pope well knows which side of the distinction to make use of when he has a mind to do mischief I do not speak this against all Papists as if none of them could be good Subjects for I both believe and know the contrary but 1. I do not see how the Jesuits and those who believe and own their Principles who are indeed the Puritans of the Roman Church can be good Subjects to a Protestant Prince or capable of a Toleration without indangering the publick peace and safety of the Commonweal 2. And that others are good subjects as I know some are it is to be imputed more to their piety and personal goodness than the principles of their Religion divers of which as might easily and evidently appear are no good dispositions to Loyalty 2. And as no King in prudence can give a Toleration to such Religions and ways of Worship as are destructive to the Civil State and publick peace of the Commonwealth so pari passu and for the same reasons he cannot tolerate such as are destructive of the Ecclesiastical state or peace of the Church at least so far as they are so and without such restrictions and qualifications as may rationally secure the Established way of Worship For otherwise he should be cruel to the true while by a Toleration he is kind to a false Religion 3. If any Religion or way of Worship approve and practise any thing against the Law of Nature as Blasphemy Theft Perjury Adultery c. such as all sober men acknowledg to be crimes and are destructive or evidently dangerous to the well-being of humane Society I suppose no prudent Prince should give a Toleration to such Sure I am Seneca tells us that no Nation ever did grant impunity to such Impieties In hoc consensimus saith he adversus omne maleficium datur actio homicidi veneficii parricidii violatarum Religionum aliubi aliubi diversa poena est sed ubique aliqua But here it must be observed that the crimes I now speak of to which I would have no impunity or toleration granted must 1. Be such as are clearly and certainly crimes against the Law of Nature so that all sober men generally know and acknowledg them to be such For if it be dubious whether they be crimes or no or how far or what measure of malice is in them then it will be very hard to punish them For it will seem irrational and indeed unjust to inflict a certain punishment for a dubious and uncertain crime Certa culpae cognitio must always
recalls those who had forsaken him nor confirms those who stayed by threatening loss of Livelihood Liberty or Life but faith only Will ye also go away To go or stay was res spontaneae voluntatis non coactae necessitatis it was a thing of choice not coaction which was to make or continue them Christians Ostendit se ne velle quidem discipulos nisi volentes faith a Grotius in the Constitutions of Clemens an ancient Book though not of lemens his compiling 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Liberam reliquit hominibus arbitrii potestatem non morte temporali eos puniens sed in altero saeculo ad reddendam rationem eos vocans And again b 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Dominus non cogens sed libertatem suam voluntati permittens dicebat quidem vulgo omnibus si quis vult venire post me Apostolis vero numquid vos abire vultis And the Greek Father thus c 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Interrogat an ipsi velint discedere quod omnem est amoventis vim necessitatem Lastly as to punishing of Hereticks with death our Saviour seems to resolve the case in express terms that they ought not so to suffer death though they were Hereticks It is in the Parable of the Tares where he tells the servants that they must suffer the tares to grow with the wheat Hereticks with Catholicks till the Harvest the end of the world and he gives the reason of it Lest the wheat be indangered by the extirpation of the tares How far the Romish Inquisitors and others who punish Hereticks with death fulfill or follow this advice let the world judg Sure I am this precept Let them grow together till the harvest and their practice are contradictory He that consumes Hereticks with fire and faggot does not let them grow and continue with Catholicks Unless an absolute eradication of the Tares be a continuation of them with the Wheat which would be an exposition like that in the Gloss of the Canon-Law Statuimus i. e. abrogamus When Theophylact had told us that by Tares Hereticks were meant he adds 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Quae permittuntur esse usque in consummationem saEculi nam si exscinderemus occideremus Haereticos seditiones fierent pugnae forte etiam multi fidelium in seditionibus perirent c. 3. Such compelling punishments and coaction is not cannot be a fit and congruous means to work faith and true Religion in erring persons That faith comes by hearing we read and know but that men are or can be beaten into a belief of Truth we read not Nova lex se non vindicat ultore gladio saith Tertullian and the Fathers in the Council of Toledo Statuit sancta Synodus nemini ad credendum vim inferre And hence Gratian infers Ergo non vised leberâ acbtrii facultate ut convertantur suadendi sunt non impellendi Admonendi sunt non cogendi saith the Gloss there to beget faith Argumento opus est non baculo Bonds and Imprisonment may captivate the body but not the understanding Fire and Faggot may consume but not convert an Heretick Religion is seated in the Understanding and Will things uncapable of force or coaction Plunderings Sequestrations and Imprisonments may beget an outward compliance and hypocrisie not true and unfeigned Piety To put me in Prison is a poor argument to prove that I am in an error and we may justly suspect he wants better who useth that By such means men are rather confirmed in their opinions than confuted as is evident in the Christians of the Primitive times when Christianity thrived and Christians were multiplied by persecution so that the Martyring many made more The Church in this like old Rome in the Poet Per damna per caedes ab ipso Ducit opes animumque ferro He that suffers persecution and boldly dies for his Religion and Opinions be they what they will true or false is by his party esteemed a Martyr not a Malefactor and such suffering is so far from a confutation that it is indeed a great confirmation of them in their opinions Crescit adversis fides and a motive to make others imbrace them The Massacre in France made more Protestants in one night than all Calvin's Works have done since their first publication And Erasmus observes that a Carmelite Frier who was imployed to inquire after and punish Hereticks did by his Cruelty and Severities increase the number of those he persecuted Ubicunque saevitiam exercuit Carmelita saith Erasmus ibi diceres factam fuisse Haereseâ—n sementem So disproportionable was the means he used to the end he aimed at that whiles he murdered he multiplied Hereticks and made more even by those Mediums which he used to leave none And as it was then so it may be still a prudent Toleration may prove a far more effectual means for the conversion of erring Christians than the Serverities of a Persecution 4. In all just punishments as the best Lawyers truly tell us there must be two things 1. Cognitio culpae 2. Aestimatio poenae the crime to be punished together with the magnitude and measure of it the degrees of the malice of it in it self and the mischief it does to others must of necessity be certainly known else it cannot justly be punished for the justice of punishments consisting in a proportion between the crime and punishment he that would justly proportion this to that must first know the crime and the measure of the malice contained in it the mischief done by it else 't is impossible he should proportion a just punishment for it Now I conceive it very difficult if not impossible for any man certainly to know how far Erroneous opinions in Religion or Herefies as they call them are sinful For 1. No Heresie or erroneous opinion can be sinful unless it be voluntary That of Saint Augustine is an universally and justly received principle Peccatum non est peccatum nisi sit voluntarium There is no malice in the mind or will unless it be voluntary But now how far the Errors of Titius and Sempronius are voluntary whether they proceed from weakness or wilfulness and what degree of weakness or wilfulness they have none I believe does or can know without Divine Revelation but he that knows the heart and therefore none but he can justly punish such Errors because not knowingly and this is the reason which Seneca gives why Ingratitude was not punishable by any Law in his time Quia difficilis erat Incertae rei aestimatio it was to them so difficult to know the measure and degrees of Ingratitude that they did not dare to punish it but left it Odio hominum vindictae Deorum who only knew the measure of the fault and so the means justly to punish it for although in Thesi all men
Communion on that Condition and when he rejects and does not make good that condition the Church may justly eject him by Excommunication tho they cannot distinctly know the measure and degrees of the malice that is in such error it being impossible for any man certainly to know whether he err out of weakness and infirmity or malice and obstinacy And further every such person may be call'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as the Apostle here Irenaeus and others after him call all Hereticks not because they maintain an error against their Conscience for certainly many do not and when any do none can possibly know but he who knows the heart but because as Lyranus tells us Fidem quam in baptismo recepit ut veram nunc condemnat ut falsam He condemns that Faith now and so himself which before he professed as true So that he is said to condemn himself Non respectu judicis interni for he may at both those times think he is in the right but respectu professionis facti externi he professes that as true at one time which he himself condemns as false at another And so the same person at several times approving and condemning the same Doctrine may properly enough be said to condemn himself seeing he now disapproves and condemns what before he approved Lastly which is no little prejudice against punishing for Opinions in the Primitive and purer times of Christianity we find no persecution for Religion except by Pagans The Arians amongst the Professors of Christianity were the first who used it So Athanasius tells us and Grotius observes it out of him In Arianam haeresin acriter invehitur Athanasius quod prima in contradicentes usa esset judicum potestate quos non potuit verbis inducere eos vi plagis verberibusque ad se pertrahere anniteretur Such force and compulsion may be means for Mahomet for a Pagan or Arian to promote Infidelity and Heresie but not for a Christian. Nec tali auxilio nec defensoribus istis Christus eget After them the Donatists equally guilty of Heresie and cruelty persecuted the good Christians And Optatus for this very thing denies them to be true Members of Christ's Church Neque enim Ecclesia dici potest quae cruentis morsibus pascitur sanctorum sanguine carnibus opimatur c. For though these be the words of Parmenian the Donatist objecting to the Orthodox that they persecuted the Donatists and therefore were not the true Church Yet Optatus grants his Position to be true that Ecclesia dici non potest quae cruentis morsibus pascitur c. And retorts the argument against them telling Parmenian 1. That the Orthodox and true Church persecuted none Doce aliquem nostrum saith Optatus cuiquam insidiatum esse quem à nobis persecutum esse aut dicere possis aut probare the Orthodox Christians did no such thing nor any way approved it then 2. But the Donatists did De sedibus suis multos fecistis extorres cum conductâ manu venientes Basilicas invasistis multi ex numero vestro per loca plurima cruentas operati sunt caedes tam atroces ut de talibus factis ab illius temporis judicibus relatio mitteretur c. Thus the Arians and Donatists and Circumcellians the worst sort of Donatists and after them the Church of Rome hath of all others been most guilty of this cruelty using when they wanted better reasons force fire and faggot to consume whom they could not rationally convince And indeed those who are so fierce for persecution for Religion have no better examples to follow than Pagans in their Persecution of Christians or Mahomet establishing the Alcoran by the Sword or Arians Donatists and Circumcellians Now how far it may be safe or honourable for any to follow such examples let sober men judg Sure I am neither our Saviour nor his Apostles nor the Primitive and Orthodox Christians for several ages either used or commended force and coercive punishments as a congruous means to propagate the Gospel where it was not or confirm it where it was He that reads Justine Martyr Athenagoras Tertullian Arnobius Minutius Faelix Lactantius c. or indeed any Ecclesiastical Author for 300 years after Christ will find Grotius his Observation to be true Quod perpetuò asserunt Neminem ob fidei professionem esse cogendum The ancient saying is still true Religionis non est Religionem Cogere quae sponte suscipi debet non vi Suaderi potest cogi non potest The internal Acts of the Soul in which all true Religion originally consists and without which no external Acts of the body are capable of any Religion cannot be compell'd nor is there any possibility that they should be capable of compulsion I confess the Body may be compell'd the Feet to go to Church the Ear to hear Prayers Sermons Disputations the Hand to subscribe Articles and Canons but all this if the Heart and Hand do not go together is so far from true Religion and Sincerity that it is downright hypocrisie Whence it was that St. Augustine even when he was of opinion that in some cases coactive punishments might be used thought it best Quod ad Catholicam veritatem cogeretur nemo sed eam qui sine formidine vellet sequeretur ne falsos simulatores Catholicos haberemus Athenagoras pleading against Persecution for Religion to M. Aurelius Antoninus tells him and us 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Et uno verbo quantum ad Gentes populos sacrificia peragunt quae volunt homines mysteria And then adds 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Et ista omnia conceditis vos leges Rome gave always Liberty of Religion to those Nations she subdued they might serve their own Gods so they payed tribute and without sedition served her too Fides voluntatis est non necessitatis was the saying of St. Ambrose and still true Our Saviour is Captain of our Salvation Christianity is a Spiritual Militia and the Church militant an Army with Banners Christians Soldiers but Voluntiers not press'd men Nec Christum invitis servis aut mancipiis sed liberis regnaturum Psaltes olim dixit Populus tuus Spontaneus in die fortitudinis seu victoriae tuae The Original if rendered ad verbum sounds thus Populus tuus spontaneitatum A people which must come without compulsion Christ and his Apostles never inflicted or threatned any temporal punishments here but eternal hereafter Qui non credit condemnabitur Our Saviour's Kingdom is Spiritual and the means to preserve increase and propagate it are so too Fire and Faggot Chains and Imprisonments are not amongst Evangelical means to make or confirm Christians Those were things Christians were patiently to suffer themselves not to inflict on others The Gentiles never were compell'd but freely came to Baptism Sacro
Christianae militi ae Sacramento liberè obligati as a good Author tells me to be Christians is to be in Covenant with Christ which cannot be compell'd 't is essentially consensus mutuus and where such free consent is wanting there is no Covenant or real and true Christianity It is Tertullian who tells us Hoc ad Irreligiositatis elogium concurrit ut non liceat mihi colere quem velim sed cogar credere quem Nolim It seems to him irreligious to compell Religion Piae religionis est non cogere sed suadere saith Athanasius And again Dominus non cogens sed libertatem suam voluntati permittens dicebat quidem vulgo omnibus Si quis vult venire post me Apostolis vero Numquid ae vos abire vultis And Chrysostome on the same place of John 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Interrogat an ipsi velint discedere quod omnem est amoventis vim ac necessitatem It is an excellent passage in Hilary to this purpose Intelligit singularis sapientia tua non decere non oportere cogi compelli in vitos ac repugnantes c. Idcirco laboratis ut omnes quibus imperatis dulcissimâ libertate potiantur Nec alia ratione quae turbata sunt componi quae divulsa sunt coerceri possunt nisi unus quisque nulla servitutis necessitate adstrictus integrum habeat vivendi arbitrium And again Permittat lenias tua populis ut quos Voluerint quos Elegerint audiant Docentes divina Mysteriorum solennia concelebrent c. And a little after Deus cognitionem sui Docuit potius quà m Exegit coactam confitendi se aspernatus est voluntatem Deus universitatis est obsequio non eget necessario non requirit coactam confessionem non fallendus est non promerendus nolit nisi Volentem recipere nisi orantem audire nisi profitentem signare Lactantius thus Defendenda Religio non occidendo sed moriendo non saevitiâ sed patientiâ illa enim Malorum sunt haec bonorum necesse est bonum in Religione versari non malum Nam si sanguine si tormentis si malo Religionem defendere velis jam non defendetur illa sed Polluetur violabitur Nihil enim est tam voluntarium quà m Religio And the same Lactantius elsewhere Non expetimus ut Deum nostrum velit nolit colat aliquis invitus nec si non coluerit irascimur Quis imponit mihi Necessitatem vel colendi quod Nolim vel quod Velim non colendi St. Augustine was at first against all Persecution for Religion and would not have the Emperor sollicited to punish the Donatists with Secular and Temporal punishments At last as he confesseth he was of another opinion yet even then he was against punishing any even the worst Hereticks with death Ita enim lex fuerat promulgata saith he ut tantae immanitatis Haeresis Donatistarum cui crudelius parci videbatur quà m ipsa saeviebat non tantum violenta esse sed omnino non fineretur esse impunè non tamen supplicio capitali propter servandam etiam circa indignos mansuetudinem Christianam sed pecuniariis damnis c. There is in Eusebius an Edict of Constantine and Licinius which gives a Toleration to all Religions 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Ut tum Christianis tum aliis omnibus liberam optionem omnino daremus eam Religionem sequendi quam ipsi in animos inducerent And again 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Consilio rectissimo decrevimus ut nemini prorsus libertas negetur Christianorum cultum imitandi Cuique detur copia suam mentem ei Religioni addicendi quam ipse sibi maximè convehire censuerit And he gives the reason of this Indulgence 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Quia nostrorum temporum tranquillitati quieti revera accommodatum est ut quisque facultatem habeat deligendi eam in Deo colendo rationem quae sibi maximè placuerit hocque à nobis factum ut nullius Religionis authoritas à nobis ulla ex parte imminui videatur Afterwards such Toleration was not granted but as we see in the Imperial Laws sometimes more or less according to the Constitution of the Emperors and the fierceness and importunity of the Bishops But enough if not too much of this and therefore manum de Tabula He that desires more either sayings of Fathers or Imperial Edicts or Constitutions of particular Churches and Nations concerning Persecution or Toleration of several Religions may have them Collected to his Hand by many Authors Qui plura vellet illos videat Quer. 1. Whether he that would give a Toleration to several Religions should not in prudence and conscience first know what these Religions are what Points they hold different from that Established that so he may knowingly judg how far he may or may not grant Impunity For if he Tolerate a Religion before he know it he Tolerates he knows not what Which cannot be an act of prudence in any Magistrate Seeing in this case he grants a Toleration to that Religion which for ought he knows he ought not to Tolerate Quer. 2. Whether he that does and justly may Tolerate a Religion different from that Legally established and so compells none to be of his Religion may not yet compell his Subjects to those Media and the use of them by which may be informed of the reasons and truth of his Religion As for instance whether our King though he should grant a Toleration to Papists and so no way compell them to be Protestants may not compel them to come to Sermons and hear Disputations by which they may be informed of those Truths we hold and the Grounds and Reasons of them As Parents compell their Children to go to School for Information though they should not cannot compell them to an assent and belief of what they are taught Seeing by the Law of Nature and Scripture we and all men are bound to Try all things and hold fast that which is good and so may by our Lawful Governours be compell'd to an examination and rational trial of several Religions though not to the belief of any Now the reason of this difference in this 1. It is evident and confessed that 't is every man's duty to make such trial of the truth of several Religions that so he may be of the best Religion by choice and not only by chance 2. It is as evident that the end of Magistracy is to bring all men under their Jurisdiction to do their duty either by suasory allurements or if that will not do by compulsory punishments and so by consequence he may compell them to such trial of the truth 2. But after such trial made by hearing Sermons and Disputations the Magistrate cannot tell certainly when it is their duty of several Religions to believe this or that in particular
of a Father sufficient to Null the consent and matrimonial contract of his Daughter neither is nor can be pretended Secondly For humane Laws the Civilians and Canonists tell us That the fear of a Father makes not the Marriage or Consent of his Daughter a Nullity Plane metust reverentialis sive obsequium reverentiae Paternae debitum matrimonium non impedit uti nec Consensum No not when the Daughter gives her consent Patre suadente admodum urgente hortante And the law it self tells us That if a Father compell or force his Son to marry a Wife there is the same reason for his Daughter to marry a Husband which otherwise he would not have Married yet the marriage is valid and by reason of that force no Nullity si Filius Patre cogente ducit uxorem quam non duceret si sui arbitrij esset contraxit tamen matrimonium quod inter invitos non contrabitur maluisse hoc videtur So that even according to Human Civil and Canon Laws it is not all Co-action force or fear from a Father which makes the consent of a Daughter in a Matrimonial contract invalid or Nullity and therefore 't is impertinently pretended for such in our present Case 5. I confess the Canonists and Civilians say That fear makes the consent Involuntary and so indces a Nullity Locum non habet consensus ubi metus vel co-actio intercedit c. So saies that Law and the Lawyers consent and say further Quod Matrimonium per metum vel minis contractum deficiente consensu est ipso jure nullum But it is certain first That they do not mean a Reverential Fear a fear of displeasing a Father for the same Men in the same places say That such a fear does not vitiate the consent or make a Nullity Now all the fear pretended by Gallina in our Case was from her Father Secondly If the fear arise from the many and severe Threats of a Father yet this cannot make the consent involuntary and so a Nullity I confess that if a Father should Command and Threaten his Daughter to Marry an impious and unworthy Person the Law will warrant her disobedience for in that Case she is not by Law bound to obey her Father's commands or threatnings But in our Case no such indignity or incapacity of Patrimoniale's person is complain'd of or so much as pretended for a cause why Gallina's consent should be involuntary and the conjugal contract a Nullity Now if this be true and the Law it self says it That tum solum dissentiendi a Patre licentia Filie conceditur cum indignum moribus aut turpem sponsum ei Pater eligat If the Law allow a Daughter to disobey her Father's commands proposing a Huband to her only in such Case then if he chuse and propose a Person better qualified and no way unworthy of her and give his consent and command that she shall marry him as the matter of Fact was in our Case then she is bound to obey him For if it be Lawful for a Daughter to disobey her Father onely when he proposes and unworthy Husband then when he proposes one worthy she is bound to obey him Seeing then the Husband propos'd to Gallina by her Father was no way unworthy of her but she bound upon her Father's consent and command to marry him it follows Thirdly That her actual marrying him upon her Father's command and fear to displease him was an act of filial Obedience and Duty and therefore could not possibly vitiate her consent and make the conjugal contract involuntary invalid and as pretended a Nullity Nay Fourthly 't is certain that a Father hath a just Authority by the Law of God and Nature to consider and judge what is good for his Children and not only to command their Obedience but to use Threats and Menaces yea and Castigations and Whippings too to make them do their Duty and obey his just commands so our Heavenly Father commands us to obey his Laws useth Menaces threatens Death and Damnation if we do not and these Means he has appointed Threatnings as well as Promises to make us willing to do what he commands our Duty And therefore to say that such Paternal Commands and Threatnings whether of our Heavenly or Earthly Parents can be a just ground to make our consents to such commands involuntary which he has ordain'd to make us give a willing and voluntary Obedience is to Blaspheme his infinitely wise Providence and to say that the means which he has appointed to produce a willing and voluntary consent in us to obey his Commands and do our Duty has a necessary and contrary effect and makes them involuntary So that it being granted that Gallina's Father commanded her to marry Patrimoniale and to make her to do it added many and severe Threatnings for fear of which she did and without them would not have done it marry him this may prove that in those circumstances and to avoid her Father's displeasure she willingly made that conjugal contract but neither is not can be any ground to prove that her consent was involuntary and so the contract in valid as is pretended and a Nullity Fifthly And this may further appear that such Actions are not involuntary by the consent of Christendom thus In the Primitive Church and times of Persecution some Christians suffer'd Imprisonment and many Torments for their Religion yet at last for fear of Death threatned by their Pagan Persecutors they offered Incense in the Idol Temple and yet all those Imprisonments Torments and Threatnings of Death did not make that act of theirs Involuntary for then it had not been Sin peccatum utique non est peccatum nisi sit voluntarium and yet the Church and Christian World judg'd it to be a great Sin and Ecclesiastical Punishments and long Penances were imposed on them for it as appears by the for it as appears by the Antient and approved Canons Now if all these Sufferings and Fears of present Death did not make their act of Sacrificing in a Pagan Temple Involuntary then neither will the like if any such had been make Gallina's act of marrying in a Christian Church involuntary nor consequently invalid and a Nullity Sixthly But let it be further granted that Gallina was unden very great force and fear from her Father as is pretended and that that force and fear was of such a Nature and Degree as the Canon and Civil Laws judge sufficient to make a conjugal contract invalid and a Nullity Yet seeing in this case Idem est non esse non apparere till this do legally appear by just proofs no judge can as least none should give sentence for a Nullity nor can Mr. Cottington with any Security Quiet or Peace of Conscience Co-habit with her as with his legal Wife And in this and such other Matrimonial Cases of Nullity and Divorce our
create a new Marriage instead of that which was Null and Void for want of free consent but ratifie only and confirm the first or rather give us an assurance and demonstration that that was a free internal consent which was exprest in the Form of the Council notwithstanding those specious Pretences to the contrary whereby she would impose upon us and according to which we that can see no further than outwardly ought to have judged in Case there had not been these subsequent Acts and therefore undoubtedly there needs not a second Celebration in the Form of the Council when by thâ—se Acts we are assured that she gave her free consent in the First Ex coitu matrimonium praesumi si prius consensus verbis expressis sed propter causam aliquam vel impedimentum humani juris nullum praecesserat satis senim tacitè aliquo sufficiente signo novum consensum praestari says Parisius who was a Cardinal since the Council of Trent Q. 4. In Case the Council does authorise its Dissolution whether it does therein act contrary to the Law of God A. I 'll leave this question to the Divines but if that be Law I have said before then I think God has joyn'd them Q. 5. Supposing the Council of Trent does authorise its dissolution and that it does not act contrary to the Law of God therein whether according to the due and usual proceeding of our Courts and the Laws of our Nation where the Council of Trent was never received we shall or ought to allow of such a proceeding upon the account of a community of Rights or any other account whatsoever A. I am of Opinion in the Negative For however it may be in Civil Causes in point of Commerce or the like the Reason is not the same in Criminal or Matrimonial ubi vertitur periculum animae which may arise from the difference in Laws and Religions for 't would be strange Doctrine to assert That a Subject of England ought to be executed here upon a Sentence of Heresie in Rome and as strange to adjudge the dissolution of a Marriage here because it was not celebrated according to the form of the Council of Trent or rather as this Case is To force a Subject of England to Cohabit with a Woman who in the construction of the Laws in England is another Man's Wife for that is done by putting in Execution here a Sentence of Divorce which was given at Turin upon the Council of Trent which Council was never promulgated in England and when the Law is in Terms otherwise Hipol de Morsil singular 138. n. 2. Judex says he unius territorij mandat Executioni sententiam judicis alterius territorij c. Tene tamen mente quòd istud procedit quando Judex pronunciavit secundum leges non autem statuta ipsius loci tum alter judex non tenetur And therefore says Jason In executivis debent attendi statuta illius loci in quo fit executio non alterius secundùm Bart. omnes And further says Angelus l. Si ut proponi c. De execut rei Jud. Talis Judex alterius territorij potest de iniquitate talis sententiae cognoscere si viderit esse iniquam aut de hoc vehementer suspicaretur non debet illam executioni mandare And this is the common Opinion William Oldys I have read and considered the Answers given by Dr. Oldys to the foregoing Questions and do agree with him in Opinion Richard Lloyd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 DE JVDAEIS in Reipublica Christiana tolerandis vel de novo admittendis THE CASE OF THE JEWS TO this Question in short I say 1. That in Scripture we meet with a Jew in a Double Notion 1. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Corde 2. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Carne 2. For the First they are called Circumcisio Spiritualis in Spiritu The Second Circumcisio Carnalis in Litera De Judaeis Corde non quaeritur For so every true Christian is in Scripture called a Jew Rev. 3. 9. Rev. 2. 9. 3. For the Second Sort of Jews in Carne they are 1. Natione tantùm Judaei 2. Religione tantùm 3. Natione Religione simul Now the Question is only of a Jew in Religion of what Nation soever or of him who is a Jew Natione Religione simul Whether such may be admitted in a Christian Common-wealth In Answer to this Question I say That the Toleration or Admission of such Jews may be considered in a Twofold Relation 1. Respectu Reipub. 2. Respectu Ecclesiae 1. In Respect of the Common-wealth there are only Two Things properly considerable to a Statesman which may make their Toleration or Admission Legal or Illegal Convenient or Inconvenient according to the Nature and Condition of those Politick Considerations Now these Considerations are 1. Whether there be any Law of the State against such Jews being here for if there be then stante Lege they cannot legally be admitted And in England there is such a Law but that Law taken away and as the Supreme Power made it for good Reasons as they conceited then so the Supreme Power may possibly for better Reasons alter it now the State may readmit them Lege non obstante So that if the Supream Power abrogate that Law then t is manifest there is no Legal Impediment as to the Civil Law of this Nation but that they may if it seem good to the Wisdom of the State be readmited The Second Consideration as to the Political Part of this Question is the Damage or Benefit the Conveniences or Inconveniences which may accrue to the State by their Admission or Rejection Now as to this I shall add 1. That seeing the Law of Nature and Nations tell us that Salus Populi suprema Lex est if it appear to his Highness and his Council who only are Judges of this and not the People that the Common-weal will be advantaged by their Admission then no doubt they may and ought to be admitted 2. If otherwise they are not Now whether it be for the Benefit and Secular Advantage of the Common-wealth to admit the Jews I shall not Dispute but leave it to the Prudence of the State only I shall observe here Two Things 1. That whilst the Jews lived in England it was a vast Benefit to the Crown I shall give one Instance taken by my Lord Cooke out of the Records That from December 17. Anno 50. Hen. 3. till Shrovetide 2. Edvardi 1. which was about Seven Years the Crown had 420000 l. 15 s. 6 d. De Exitibus Judaeorum The Ounce of Silver was then but xx d. and now t is more than thrice so much so that as Money goes now The Crown had of the Jews in Seven Years above 1260000 l. such a Sum now might save Contributions 2. It appears by our Story that the Jews at their Expulsion and many times before were
h Statut. 24. H. 8. cap. 12. and 25. Hen. 8. cap. 19. 20 21. c. I Eliz. cap. 1. 3. Jacobi cap. 4. our Articles of Religion Art 37. The Bishop of Rome hath no Jurisdiction in England a Statut. 25. H. 8. cap. 22. b Statut. 1 Mariae Sess. 2. cap. 7. a In the Convocation Anno Hen. 8. 22. Domini 1531. Vid. Antiquit. Britan. in Archiepiscopo Warham p. 325. b Vid. 24. H. 8. cap. 12. 25. H. 8. cap. 19 c. c Articuli Relig Eccles. Anglic. Art 37. confirm'd in Parliament and subscription required Vid. Statut 13. Eliz. cap. 12. Vide Antiquit. Britan. P. 329. ad Ann. 1534. Edit Hanoviae 1605. 2 The reason alledged for the Nullity a L. 12. L. 14. Cod. de nuptiis Leg. 21. 22. F. de Ritu nuptiarum cap. Cum locum 14. extra De Sponsali Matrimonijs b Ego saies Grotius omnino illorum accedo sententiae qui existimant sepositâ lege Civili quae obligationem potest tollere aut minuere eum qui metu promisit aliquid obligari Grotius de Jure Belli lib. 2. cap. 11. §. 7. c Quia consensus hic adfuit nec conditionalis sed absolutus nam ut recte ait Aristoteles qui naufragij metu res suas jactat vellet eas servare sub conditione si naufragium non immineret sed absolute vult eas perdere spectatâ scilicet loci temporis circumstantiâ Grotius Ibidem d Aristotle Ethic. Nicom lib. 3. and Rhodius and all his Scholiasts and Commentators there a Arnold Vinnius Comment in Institut De nuptjis ad Textum Qui possunt nuptias contrahere 53. Jachim a Beust De Jure connubiorum cap. 44. pag. 8. 6. b Dionys. Gothofredus ad leg Si Patre 22. F. De Ritu nuptiarum idem ad lib. 3. F. Quiod metus causa p. c Dicta lege Si Patre 22. F. de Ritu nuptiarum The Law saies Quod vi metusve causa gestum ratum non est But then it must be vis atrox contra bonos more 's non eam quam magistratus intulit 1. 3. F. eod d Cap. Cum Locum 14 extra De Spansali Matrimonis e Panormitan ad dictum cap. Vinnius a Beute Gothofredus c. Locis supra citatis f Tum solum dissentiendi a Patre licentia Filiae conceditur si indignum moribus aut turpem sponsum ei Pater eligat l. sed quae 12. § tunc autem F. De sponsalibus a Parentis consensus in nuptijs liberorum requiritur ex reverentia parentis debita nisi manifeste iniqua sit Parentis voluntas Grotius de jure Belli lib. 2. Oap 5. § 10. b Exod. 20. 12. Honour thy Father and thy Mother c. a The Law saies L. 2. F. Quod metus Causa Quod vi metusve causa gestum ratum non est But then it means vim atrocem contra bonos more 's non eam quam magistratus juste intulit Scilicet Jure licito honoris quem sustinet li 3. Ib. non comminationem neque alterius nudam Reverentiam Gotofred ad dictam legem So that t is evident that the Menaces of a Father or Magistrate who have Authority do not cause any Nullity by Law when what they command is not illicitum or contra bono smores as certainly Gallina's Marriage with Patrimoniale was not b Vid. Can. 24 25 26 c in Cod. Can. Eccl. Universae seu Concilij Ancyrani Can. 4 5 6. c What force and fear are sufficient the Law tells us L. 1 2 3 c. F. Quod metus causa gestum est Gloss. Gotofredi note ad dictas leges Tit. 20. Lib. 2. Cod. Cap. 14 15. 21. extra De sponsal matrimon cap. insuper 4. extra Qui matrimon accus possunt vel contra The Gloss. Panormitan ib. L. interpositus Cod. de Transactionibus a Constitutions and Canons Ecclesiast I Jacobi 1603. Can. 105. b Statut. 25. H. 8. Cap. 19. Judge Vaughan's Reports pag. 327. and pag. 21. and 132. c That just proofs are prerequired to a just Sentence Reason and Law tell us L. Si donationis 7. L. Metum 9. Cod. De his quae vi metusve causâ gesta sunt L. Interpositus 13. Cod. De Transactionibus a Vid L. Cum te 2. Cod. De his quae vi metusve causà gesta sunt where 't is resolv'd that he who said he was compell'd to pay Money and yet omissa Querela having ground for it did not complain gestum praesumitur spontance factum no metu Gotofred ad dictam legem b Paul Lancellot Institut Jur. Canon 1. 2. tis 22. §. Coactio c Institutiones in Aula Rom. Mandato Pont. max. ab illustribus viris recognitae So the Epigraphe d Cap. Insuper 4. extra Qui matrimoniium accusare possunt vel contra c. e Gregory the 9th or his Chaplain Raymond calls him Clement the 3. Loco proxime citato and Gratian calls him Celestine Cant. Videtur 2. Caus. 35. Quest 6. a L. Si per vim 4. Cod. De his Dquâ—e vi metusve causa fiunt si per vim vel metum mortis aut cruciatus corporis venditio à vobis extorta est non postea eam consensu corroborâstis c. b Dionys. Gothofredus ad dictam legem lit p. c L. Cum te 2. Cod. De his quae vi metusve Causa c. d Grotius de Jure Belli lib. 2. Cap. 11. §. 20. e Tractat. de Jure Comnubiorum Cap. 44. pag. 81. f Sic onnes Apostolicae sedis sanctiones accipiendae sunt tanquam ipstus Divini Petri voce firmatae Can. Sic omnes 2. Dist. 19. g Cap. Ad id extra De sponsalibus Matrimoniis a 1. The Woman then pretended force and fear in the Contract made her consent involuntary so does Gallina non 2. The Woman then desir'd that for that force and fear that conjugal Contract might be declared invalid and a Nullity so does Gallina now 3. The Woman then after her contract lived willingly for a year and a half with her Husband without complaining or protestation of her unwillingness so did Gallina 4. It was then judged and it was then and still is Law that the subsequent Co-habitation purged the former fear and ratifi'd the contract and Gallina's Case and the Law being still the same it should have the same Sentence a Sententia dicitur nulla quia lata est contra jus constitutionis nulla vero non transit in rem judicatant Panormitan Judiciarij Ordinis Processus Forma Apostolorum sententia lata contra legem vel ex juris errore est ipso jure nu Commun opinionum Tom. 1. 51. Num. 11. b L. filius 15. ff de condit institutionum a In dubijs standum est sententiae superiorum maxime Pontificum Fillucius Quaest. moral Tractat 10. c. 2. Quaest. 8. §. 55. Can. Quod culpatur