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
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
in justice be antecedent to the Inflictio poenae If I hang a man I am sure he has per modum paenae lost his life and therefore per modum culpae I should be sure of the crime for which I hang him Seeing it cannot be just to inflict certain death for an uncertain crime 2. They must not only be confess'd Crimes to which I now deny Toleration but also such as are dangerous and noxious to humane Society For as Lipsus on that place of Seneca well observes Naturae quodam instinctu ea maleficia coercent homines puniunt quae societatem convellunt For there are many crimes against the Law of Nature and Dictates of Right Reason as Ingratitude Lying breach of Promise c. which yet in almost all Nations have had a Toleration and impunity and have been left Odio hominum vindictae Deorum So Seneca in the same place speaks of Ingratitude… Exceptâ Macedonum gente non est in ullâ data adversus ingratum actio magnumque hoc argumentum dandum non fuisse Hoc frequentissimum crimen nusquam punitur ubique improbatur Neque tamen absolvimus ingratum sed cum Difficilis esset incertae rei aestimatio tantum odio hominum damnavimus inter ea relinquimus quae ad Vindices Deos remittimus Where you see the reason why Ingratitude though certainly a crime against the Law of Nature was not punished but tolerated… Quia difficilis erat incertae rei aestimatio It was very hard to know when a man was ingrateful and the measure of his ingratitude and therefore hard to punish it All just punishments consisting in a proportion between the sin and the suffering of the person punished which cannot possibly be known unless the nature and measure of the crime be first known 'T is true in thesi that all know and confess Ingratitude is a great crime but in Hypothesi whether Titius be ingrateful to Sempronius and how far 't is hard if not impossible to know seeing that cannot be known unless all the Courtesies and injuries which each have done to other mutually could certainly be as indeed they cannot be comprehended By the way when Seneca saith that in nullâ excepta Macedonum gente adversus ingratum dabatur Actio and so not in Rome he speaks this of his own time For afterwards Ingratitude by the Roman Law was highly punished even with Maxima capitis Diminutio by which the ingrateful person civitatem libertatem amisit 4. Upon these grounds some Sects amongst us can have little reason to expect and the Magistrate as little to grant a toleration or impunity As 1. Adamites such there were who held a promiscuous use of women 2. Quakers who give no civil respect to any no not the Magistrate but curse and rail and damn all but their own Disciples These Crimes being evidently against nature and inconsistent with humane much more with Christian Society are not to be tolerated but severely punished It were vain to reason or dispute with such men who have cast off all civility and even humanity it self Argumentum baculinum is the fittest means if not to convert yet to keep them within some bounds of reason and civility that they may not make others worse if they will not be better themselves 5. These things considered which relate to matter of fact and the actions of persons professing a false Religion we come now to the main Query concerning matter of Faith and false Opinions Whether men of a false faith and heretical opinions may be tolerated and have a grant of Impunity or whether the Magistrate is to punish such erring persons suppose Sectaries Papists Socinians c. and then how far how long with what punishments and what measure and degrees of them he is to do it for instance Whether he may punish them 1. In their Purse only by Pecuniary Mulcts taking away some part or all their Livelihood 2. Or in their persons too taking away either 1. Their liberty by imprisonment 2. Or their City the jus Civitatis by Banishment 3. Or their Life by Capital punishments as the Donatists and Circumcellians of old and they of Rome of late use those whom commonly they miscall Hereticks consuming those to ashes whom they cannot confute otherwise than with Fire and Faggot a way not only incongruous but impious and barbarous whereby they may make men coals and cinders but not Christians I say the Query is supposing those of the Religion differing from that established to be otherwise peaceable and good Subjects neither rebelliously or seditiously disturbing the publick peace nor injuriously wronging their neighbour for in these cases it is irrational for them to expect or the Magistrate to grant impunity Whether the Magistrate may justly grant them a Toleration of their Opinions and Religion though at least supposed false or compell them by punishments to the Established way of Worship which is supposed true and Orthodox In answer to this though I shall not say that it is absolutely unlawful for the Civil Magistrate in this case to use temporal and compulsory punishments yet thus much giving my reasons for it I think I may safely and truly say that it will be very difficult and dangerous for him to do it My reasons are 1. Because we find no Warrant for it in the Gospel there is neither any precept or practice of our Saviour or his Apostles to compell any to be Christians The means they used either to convert Pagans or continue and confirm Christians were constant Preaching and a rational pressing that truth to others which they had received from God and believed themselves a prudent and meek disputing and reasoning men out of their Errors a pious life and patient suffering for the truth they Preached Verbo exemplo agebant non gladio it was their Christian patience not any coactive violence which converted the world it was dying themselves not killing others which planted and propagated the Gospel Sanguis Martyrum semen Ecclesiae it was the blood of the Martyrs not of murdered Hereticks which made the field of the Church so fruitful and by what authority we should do that now which they thought not fit to do then I know not Certainly as they best knew what means were most proportionable and congruous both for the plantation and propagation of the Gospel so we have reason to believe that those mediums they made use of were such and on the other side we may rationally conclude that had there been any other means as congruous and conducible to the end they aimed at as those they used they would not have omitted them Seeing then neither Christ nor his Apostles ever commanded or by their example or practice commended violence or any coactive means to make or confirm Christians we have great reason to believe that they conceived such means not congruous and if so why should any think otherwise It is
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
includes both an acknowledgment and worship of a Deity II. Toleration of Religions presupposeth several Religions or different Opinions Respectu Doctrinae Disciplinae or both for without such disserent Religions cannot be different III. Now amongst several Religions in any Nation all cannot be true 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Jamblichus tells us truly Truth is one and cannot differ from it self and that which is owned and established by the just Authority of any Nation is supposed to be the True Religion It follows that Toleration must necessarily relate to those Religions and ways of Worship which are at least supposed false as being different from that which the Nation that tolerates them owns and establishes as true I say supposed to be false For it may and many times does happen that the False Religion may be established and the true only tolerated So in France Popery is the Religion owned and Protestancy only tolerated in England contrary VI. Now this Toleration or Establishment must relate to some and the same Authority That Authority which establishes the True must tolerate the Religion or Religions which are supposed false for we speak of an Authoritative and Legal Toleration So that as the Supream Legislative Power must and only can legally establish the True so it only can tolerate those ways of Worship which are supposed to be false V. And here further As this Legal Establishment brings a two-fold obligation on those who submit to it 1. An obligation to Obedience and a conformity in their Practice to the Established Law And 2. An obligation to the Punishments mentioned in the Law in case of Disobedience So on the other side a publick and Legal Toleration exempts those to and for whom it is granted 1. From the obligation to Obedience and conforming themselves to the established way of Worship For Toleration intrinsecally notes the taking off such Obligation 2. It exempts them from those Punishments which are to those who have submitted to such a way of Worship the consequents of non-obedience and non-conformity to the Established Religion For no man can be justly punished for non-obedience to any Law who is not under the obligation of it VI. Once more As those to whom such Toleration is granted may justly expect impunity and exemption from all penal Sufferings tho they conform not to the way of Worship publickly established so on the other side they cannot reasonably expect the Rewards and Encouragements which a Prince distributes to those who chearfully obey and give conformity to the Religion established For as Rewards and Punishments are the Sepimenta Legis the great Mounds and Hedges to keep men to their duty and obedience to any Law of God or Man hope of Reward incouraging men to obedience and fear of Punishment frighting them from disobedience so they go together and are inseparable and belong only to those who are under the obligation of such Law So that he to whom the Law is not given and to these who have a Toleration it is not as he need not fear punishment for Non-conformity the Law not obliging him to it so he cannot expect or hope for those Rewards which are the encouragements of that obedience which he refuseth to give Those then who are under the obligation of such Law are in one respect in a better condition because they may justly expect from their Prince Rewards and Encouragements proportionable to the measure of their Obedience So on the other side those who have the Toleration are in another respect in a better condition because they need not fear any Punishment for their Non-conformity 7. It must be remembred that it is a Toleration we speak of not an Approbation of those Religions or ways of Worship which differ from the Religion established in a Nation For the Established Religion being always supposed to be true and as such owned by the Authority establishing it the ways of Worship tolerated only must of necessity be supposed at least to be false and so cannot be approved by that Authority which for just Reasons does and may tolerate them For such an approbation of the False would be a condemnation of the True Religion and so if they approve what they tolerate they condemn what they establish which is such a contradictory piece of Indiscretion and Injustice as hardly any Authority can be guilty of VIII This premised the grand Query will be Whether and how far the Supream Power may and ought to grant such a Toleration to Religions and ways of Worship differing from that established Now seeing the granting of such a Toleration as almost all other humane Actions may be good or bad according to the various Circumstances and several Conditions 1. Of the Power that grants 2. Of the Persons to whom the Grant is made 3. Of the Religions tolerated 4. And of the time in which such Toleration is granted It cannot be expected that I or any body else should give one Absolute and Categorical Answer to the intite Query and therefore I shall crave leave to say something towards an Answer by several steps and degrees in these following Positions 1. Then it is to be considered who they are who desire such a Toleration their number and quality at home and what Friends and Assistants they may have abroad For if the Persons desiring such Toleration be so considerable for number and strength at home or for their assistance abroad that a War or dangerous Insurrections and Seditions may follow if a Toleration be denied to the hazard of the publick Peace and safety of the Common-weal Then I think the Magistrate in Prudence and Conscience may and ought to grant their Desires and rather tolerate a False Religion with such prudent Qualifications and for such time as shall be agreed upon than hazard the unsettlement and ruine of the True For as in the Body Natural we endure a Gangrened Member with much pain and patience tho without hopes of cure when it cannot be cut off without endangering the whole so in the Body Politick or Ecclesiastical an erring part may and ought to be endured and tolerated when the cutting off would hazard the weal of the whole And indeed such a Toleration in such a Case is rather necessary than voluntary in the Magistrate only he in this case makes a vertue of necessity giving that by way of favour and kindness freely which probably they might have by force Thus he secures the publick Peace and the Religion established obliges the Dissenters by the civility and courtesie of a moderate Toleration and yet all this is indeed but granting impunity when he cannot punish And this is most consonant to the Principles of right Reason and the perpetual Practice of all Nations For Quod multis peccatur inultum est when Seditions have happened in a Common-weal or Mutinies in an Army if the Seditious and Mutineers were many it hath ever been thought more prudent to pardon than punish
not in some cases reprive or pardon some whom they had condemn'd Sure I am that David the best of Kings who knew the Jewish Laws as well as any did reprive Joab who had murder'd Amasa and Abner and delay'd the execution of the Law and left it to Solomon his Son who did accordingly put Joab to death 2. And as David reprived Joab so he pardon'd Absolon who had slain his Brother Amnon Nor does the Scripture any where impute the reprive of Joab or the pardon of Absolon to David as crimes or transgressions of the Law of Moses but rather declares him innocent when it is expressy said That David did that which was right in the eyes of the Lord and turned not aside from ANY THING that he commanded him ALL THE DAYS OF HIS LIFE save ONLY in the matter of Uriah the Hittite Now if notwithstanding those Mosaical Penal Laws it was lawful for David the Supreme Power amongst the Jews to whom those Penal Laws were given and they bound to the observation of them I say if David might lawfully Reprive and Pardon Murderers how can it by those very Laws be unlawful for the Christian Supreme Power and Gentiles to whom those Laws were never given nor they ever under the obligation of them to reprive or pardon such condemned malefactors In short the sum of what I have said endeavour'd to prove and believe to be true is this 1. That there is no Law of God or Man which does prohibit and so make it unlawful for Supreme Princes to grant such Reprives and Pardons 2. That the end of all Penal Laws and of their due Execution is that the honour of our great and most Gracious God and his true Worship and Religion be preserved and Ne quid detrimenti capiat Respublica that the Commonwealth be not damnify'd by too usual and frequent granting pardons For too great Impunity will occasion and encourage Impiety 3. That all loyal and faithful subjects are bound and have good reason to believe that his Sacred Majesty as he is Gods immediate Vicegerent Defender of the Faith and whose greatest Interest it is to promote those good ends so he will carefully endeavour by a due Execution of our good Laws to attain those ends 4. That such Cases heretofore have and may again happen wherein the time persons and all other Circumstances duly consider'd a Reprive may not only be lawful but necessary And wherein a Pardon may conduce every way as much and possibly in some Cases more for attaining the good ends of Penal Laws as a perpetual severe and rigorous execution of them And of such Cases the King is the Supreme and sole Judge who if need be may call for and have The advice and counsel of any of his Subjects of whose prudence and piety he is well assur'd This is the sum and substance of what I have said at several times to several persons to confirm them in the belief and incourage them to a just vindication of His Majesties Legal Rights and undoubted Prerogative And what I have done in this was a duty I did owe to my Gracious Soveraign not only by common Allegiance as he is my King but in gratitude as to my Patron whose undeserved favour and goodness has plac'd me in the good Station wherein I am And therefore that God Almighty would be graciously pleased to bless and preserve his Anointed from all the impious Plots and Conspiracies of all His enemies give Him a long and peaceable possession of a Temporal Crown here and an Eternal Crown of Glory hereafter is and shall while I live be the Prayer of Buckden Jan. 20. 1684. Your Affectionate Friend and Servant T. LINCOLN Mr. Cottington's Case CONCERNING The Validity or Nullity of his Marriage with Gallina her former Husband then living Anno. 1671. Mr. Cottington's Case A DOUBT OR Case of Conscience PROPOSED CASE THE FIRST 1. GAllina Marries Patrimoniale Anno. 1664. Lives and Cohabites with him as his Wife a year and a half has a Child by him a Daughter And all this while voluntarily gives him Reverence and due Benevolence Sine protestatione aut Querelâ without any protestation or complaint of any Nullity or Illegallity of the Matrimonial Contract by reason of any Antecedent Force or Fear to make her consent and plighted troth Involuntary never endeavours to recede and make an Escape from him when she was in Loco Tuto and had opportunity to make such Protestation or recess with safety 2. After this Anno. 1666. The Archbishop of Turine by sentence given pronounces the said Marriage Void and Null by reason of Force and Fear into which her Father put her which rendred Gallina's consent involuntary as was supposed and contrary to the nature of a Conjugall Consent which Jure Naturae ought to be free and spontaneous otherwise it will not be Obligatory 3. After this Anno. 1671 The said Gallina Marries Mr. Cottington her former Husband then Living and who is yet alive and at Law and in the Court of the Arches claims him for her Husband 4. The Court Sententiâ latâ Determines and Declares that Mr. Cottington and Gallina are lawfully Husband and Wife without taking notice of the Archbishop of Turin's Sentence whether it was valid or void and injoyn'd them to Co-habit 2. This is the Case and the Query is Whether Mr. Cottington after a just and serious consideration of the Premises may acknowledge take and use Gallina as a lawful Wife without Sin and so with a safe Conscience and without Danger or Fear of offending God with security to his Soul 3. This is the Case of Conscience in which my Opinion is desired which how insignificant soever it may prove yet in Obedience to the commands of that Excellent and Noble Person who requires it and Charity and Satisfaction to the doubting Gentleman and discharge of my own Duty as a Minister I shall willingly give it and plainly set down what at present I conceive truth in the Case and the reasons why I do so The Premises then as before set down being supposed true and as to matter of Fact granted with submission to the better Judgments of persons of greater Knowledg in Divinity the Common Canon and Civil Laws my answer is Negative That Mr. Cottington cannot with a safe Conscience and security from Sin acknowledg take and use Gallina as his lawful Wife And this seems to me not only a Probable but a certain and evident Truth That this may appear I consider 1. That 't is certain and confess'd that the Obligation of the Matrimonial contract is not grounded on any Positive constitution of Man but on the Divine Law of God and Nature For although the contract cannot be made without the positive consent of the Parties yet the consent once pass'd the Obligation to conjugal Duties ariseth immediately from the Law of Nature 2. Hence it is That this Matrimonial contract while the Parties live is
of the Jews is in it self indifferent yet may be made morally good or bad according to the several Ends the different Limitations and Qualifications of their Admission First The Ends of their admission may be either 1. Civil 2. Or Sacred and Religious 1. For the civil end of their admission that is in general the Emolument and Benefit of the Prince and Common-weale And though Becanuâ— the Jesuite with a transparent piece of Hypocrisie condemn this end as unlawful it is evident that his great Jupiter Capitolinus of Rome as one said long since of some of his Predecessors makes this an end and a principle one two of their admission and if he had no greater Faults I should pardon this For Secondly 't is manifest that the Supreme Magistrate may justly make this one end of their admission For by his Place and Office there lies an Obligation upon him to preserve the Civil Interest of his Nation and the Good and Benefit of the Common-weal and may propose it as an End by all honourable and honest means to be attained Whence it is that all Princes protect and incourage Trading all Merchandizing and Manufactures 2. The Sacred and Religious End of their Admission should be the Glory of God and the Propagation of the Gospel in the Conversion and Salvation of their Souls And we are bound to endeavour this 1. By the natural Obligation of Charity as they are Men and so our Brethren whose Good we ought to promote especially that of their Souls by all honest ways 2. And more particularly as they are the Reliquiae of Gods own People concerning whom and their Conversion there are many gracious and glorious Promises in the Gospel and it will be an Happiness to us if we have an hand in it It was a Saying of Martin Luther Se propter unum Judaeum crucifixum omnibus favere Judaeis And if we love them and desire their Conversion and Salvation as in Christian Charity certainly we ought then the way to effect that will not be to banish them and prohibit their Habitation amongst us so compelling them to live amongst Turks Pagans or Papists The Images and Idolatry of which last hath undeniably been the greatest Scandal and Remora which hath long hindred them from being Christians Whereas if they be permitted to live amongst us that stumbling-block will be taken away 2. For the Conditions of their Admission for the Restrictions and Limitations to be put upon them a great deal of Caution and Christian Prudence is to be used lest while we pretend their Good we do Mischief to our selves For as to deny them all Liberty and Commerce with us may be an Act of unchristian and indeed inhumane Cruelty So to give them too much is an Act of Imprudence and Folly And indeed we find some sober Men not without good Reason complain of the too much Liberty they have in some Christian Common-wealths In short what Qualifications and Limitations are to be put upon them I shall not take upon me to determine but leave that to the Piety and Prudence of the State Yet with Submission I conceive such Limitations as these will be convenient if not necessary the rather because I find in our Histories in the Imperial and Canon Laws and in the old Capitulars and Canons of Councils that such Restrictions have been anciently laid upon them As 1. No Toleration ever was or de jure can be given them to profess or practice any thing against the Law of Nature 2. No Toleration should be given them to speak any thing blasphemously or impiously against Jesus Christ and the Gospel For though we may tolerate them in the Profession of a bad yet not in that Blasphemy of a good Religion 3. They never were nor should be permitted to circumcise Children of Christians or seduce any Christians to their Religion Let them prosess but not propagate their Religion 4. They were not permitted to carry any Office or Dignity in the Christian Common-weal though it seems that sometimes even that was permitted them 5. They were not permitted in any Suit or Difference between a Jew and a Christian to draw the Christian or his Cause before a Jewish Magistrate For 't is a ruled Case in the Imperial Law Judaeus Actor vel reus Forum sequitur Christianum 6. They were never permitted to make Marriages with Christians and the Glossator gives the Reason of it in Law Quia matrimonium debet esse communicatio divini humani juris Whereas a Jew and Christian being of different Religions cannot communicare in Sac is And this is consonant to the Law of the Gospel which forbids us to be unequally yoked upon which grounds I believe all Marriages with Papists to be unlawful that is Fieri non debuit 't is unlawful to make such Matches though that factum valet when such a Match is made the Contract is valid 7. Their frequent divorcing their Wives was tolerated For though Moses seem to suffer it yet the Emperours by express Edict forbid it 8. By the Imperial Laws Polygamy and plurality of Wives was not tolerated in them 9. If any of the Jews turn Christian by Civil Law in case the Jews endeavoured to reduce him and maliciously injured him they were to be burned for it 10. They might repair their old Synagogues but were not tolerated by the Roman Laws to build new 11. They were not tolerated to have any Christian Servants Nurses or Midwives Can. Praesenti 1. Extra de Judaeis Ex concilio malis conenti 12. By the Canon Law they might not come abroad on Good Friday 13. They were not permitted to wear Garments exactly of the Christian Fashion but were to have distinct Habits that all might know them to be Jews 14. They might not be Physiacians or give Physick to any Christian. 15. They were not permitted to be of the Roman Militia though they were permitted to be Advocates by the Rescript of Honorius and Arcadius to Romulianus P. P. 16. The Jews being the greatest Usurers in the World and believing they may justly take the highest Use they can get even Vsurae centessimae if they could have it of us Gentiles it is all the Reason in the World they should be limited in this particular and not permitted to take more of us than the Law permits us to take one of another 17. They should be enjoyned to admit of friendly Collations and Disputations sometimes about Gospel Truths and not obstinately to reject all means of Conversion and Conviction and Satisfaction of those seeming Reasons which keep them off from embracing the Truth For there will be little hopes or possibility of their Conversion if they be permitted obstinately to refuse all means of doing it But enough if not too much of this I shall only add one old Law concerning the Jews made before