VERA EFFIGIES REVERENDI DONI IOSEPHI HALL NORWICI EPISCOPI
This Picture represents the Forme, where dwells
A Mind, which nothing but that Mind excells
There's Wisdome, Learning, Witt; there Grace & Love
[...] all the rest: enough to prove
[...] the froward Conscience of this Time
The Reverend Name of BISHOP is no Crime

RESOLVTIONS AND DECISIONS [...] of CONSCIENCE In continuall Use amongst Men, Very necessary for their Information and Direction in these evill Times. In foure Decades. The Second Edition, with some ADDITIONALLS.

By Jos: HALL, B. Norwich.

LONDON, Printed for N. B. and are to be sold by R. Royston at the Angel in Ivie-lane. 1650.

To the READER.

OF all Divinity that part is most use­full, which de­termines cases of Consci­ence; and of all cases of Conscience the Practicall are most necessary; as a­ction is of more concern­ment than speculation: And of all practicall Ca­ses those which are of most cōmon use are of so much greater necessity & [Page] benefit to be resolved, as the errors therof are more universall; and therefore more prejudiciall to the society of mankind: These I have selected out of ma­ny; and having turned o­ver divers Casuists have pitch't upon those Decisi­ons, which I hold most conformable to enlighte­ned reason, and religion: sometimes I follow them, & sometimes I leave them for a better Guide.

[Page] In the handling of all which, would I have affe­cted that course which Se­neca blames in his Albutius, to say all that might be spoken, I could easily have been more Voluminous, though perhaps not more satisfactory. If these lines meet with different judg­ments; I cannot blame ei­ther my selfe, or them. It is the opinion of some Schoolmen (which seems to be made good by that [Page] instance in the Prophet Daniel *) that even the good Angels themselves may holily vary in the way, though they perfect­ly meet in the end: It is farre from my thoughts to obtrude these my Re­solutions as peremptory, and magisteriall upon my Readers, I onely tender them submissely, as pro­bable advises to the sim­pler sort of Christians; [Page] & as matter of grave cen­sure to the learned.

May that infinite Good­nesse to whose only glory I humbly desire to devote my selfe and all my poore indeavours, make them as beneficial, as they are wel­meant to the good of his Church, by the unwor­thiest of his Servants

I. H. B. N.

The CONTENTS of the first Decade.
Cases of Profit and Traffique.

  • I. WHether it be lawfull for me to raise any profit by the loane of Mony. p. 1
  • II. Whether may I not sell my wares as deare as I can, and get what I may of every Buyer? 13
  • III. Whether is the Seller bound to make known to the Buyer the faults of that which he is about to sell? 19
  • IV. Whether may I sell my commodi­ties [Page] the dearer for giving dayes of payment? 24
  • V. Whether and how farre Monopolies are, or may be lawfull? 30
  • VI. Whether and how far doth a frau­dulent bargaine binde me to perfor­mance? 38
  • VII. How farre and when am I bound to make restitution of another mans goods remaining in my hands? 47
  • VIII. Whether and how farre doth a promise extorted by feare, though seconded by an oath, binde my Con­science to performance? 54
  • IX. Whether those monies, or goods which I have found may be safely taken, and kept by me to my owne use? 61
  • [Page] X. Whether I may lawfully buy those goods, which I shall strongly suspect, or know to be stollen, or plundred; or if I have ignorantly bought such goods, whether I may lawfully (af­ter knowledge of their Owner) keep them as mine? 66

The CONTENTS of the second Decade.
Cases of Life and Liberty.

  • I. WHether and in what cases it may be lawfull for a man to take away the life of another. p. 71
  • II. Whether may I lawfully make use of a Duel for the deciding of my right; or the vindication of my honour? 81
  • [Page] III. Whether may it be lawfull in case of extremity to procure the abortion of the Child for the preservation of the Mother? 89
  • IV. Whether a man adjudged to perpe­tuall imprisonment, or death, may in conscience indeavour, and practice an escape? 101
  • V. Whether and how farre a man may be urged to an Oath. 108
  • VI. Whether a Judge may upon alle­gations, proofs and evidences of o­thers, condemn a man to death, whom he himselfe certainly knowes to be innocent? 117
  • VII. Whether and in what cases am I bound to be an accuser of another? 129
  • VIII. Whether a Prisoner indicted of a felonious act which he hath commit­ted; [Page] and interrogated by the Judge concerning the same, may stand upon the denial, and plead not guilty? 136
  • IX. Whether and how farre a man may take up armes in the publique quar­rell of a warre? 143
  • X. Whether and how far a man may act towards his owne death? 150

The CONTENTS of the third Decade.
Cases of Piety and Religion.

  • I. WHether upon the appearance of evil Spirits, we may hold discourse with them, and how we may demeane our selves concerning them. 161
  • [Page] II. How farre a secret pact with evill Spirits doth extend; and what a­ctions and events must be referred thereunto. 174
  • III. Whether reserving my conscience to my selfe, I may be present at an I­dolatrous devotion; or whether in the lawful service of God I may com­municate with wicked persons? 183
  • IV. Whether vowes be not out of fashi­on now under the Gospel; of what things they may be made; how farre they oblige us: and whether and how farre they may be capable of a release. 192
  • V. Whom may we justly hold an Here­tique; and what is to be done in case of Heresie. 201
  • VI. Whether the lawes of men doe bind the conscience; and how farre we [Page] are tyed to their obedience. 210
  • VII. Whether Tithes be lawfull main­tenance for Ministers under the Gospel; and whether men be bound to pay them accordingly. 219
  • VIII. Whether it be lawfull for Chri­stians, where they find a Countrey possessed by Savage Pagans and In­fidels, to drive out the native Inha­bitants, and to seize upon and enjoy their lands upon any pretence what­soever; and upon what grounds it may be lawfull so to doe. 233
  • IX. Whether I need in case of some foule sinne committed by me to have recourse to Gods Minister for abso­lution; and what effect I may expect there-from. 249
  • X. Whether it be lawfull for a man that is not a professed Divine, that is (as [Page] we for distinction are wont to call him) for a meer Laick person, to take upon him to interpret Scripture. 262

The CONTENTS of the fourth Decade.
Cases Matrimoniall.

  • I. WHether the Marriage of a Son or Daughter, without or a­gainst the Consent of Parents, may be accounted lawfull. 285
  • II. Whether marriage lawfully made may admit of any cause of Divorce, save onely for the violation of the Marriage-bed by fornication, or a­dultery. 296
  • [Page] III. Whether after a lawfull Divorce for adultery, the innocent party may marry againe. 311
  • IV. Whether the authority of a Father may reach so farre as to command or compell the Child to dispose of him­self in marrage where he shall ap­point. 322
  • V. Whether the marriage of Cousens­german, that is, of Brothers and Sisters children, be lawfull. 331
  • VI. Whether it be necessary or requi­site there should be a witnessed con­tract, or Espousalls of the Parties to be married, before the solemnization of the marriage. 343
  • VII. Whether there ought to be a pro­hibition, and forbearance of mar­riages, and marriage-duties for some times appointed. 353
  • [Page] VIII. Whether it be necessary that mar­riages should be celebrated by a Mi­nister; and whether they may be va­lid, and lawfull without him. 361
  • IX. Whether there be any necessity or use of thrice publishing the Contract of marriage in the Congregation before the celebration of it; and whe­ther it be fit, that any Dispensation should be granted for the forbea­rance of it. 366
  • X. Whether Marriages once made, may be annulled, and utterly voided; and in what cases this may be done? 372
ADDITIONALS to the fourth Decade.
  • [Page]I. WHether a Marriage consummate betwixt the Unkle and Neece be so utterly unlawfull, as to merit a sentence of present separation. 383
  • II. Whether it be lawfull for a man to marry his Wives Brothers Widow. 406
  • III. Whether an incestuous Marriage contracted in simplicity of heart be­twixt two Persons ignorant of such a defilement, and so farre consum­mate as that Children are borne in that wedlocke, ought to be made knowne and prosecuted to a dissolu­tion. 412.

[Page] I Have perused these foure Decades of Practicall Cases of Conscience with much satisfaction and delight, and finde them to be in respect of their subject matter so profitable, necessary and daily usefull; and so piously, learnedly and judiciously discussed and resolved, that they seem unto me best though they come last, (like the Wine in the mar­riage feast made sacred by Christs divine presence and miracle) and therefore doe well deserve (a­mongst many other the divine dishes and delicacies wherewith this right reverend, pious and learned Authour, hath plentuously furnished a feast for the spirituall nourishment and comfortable refreshing of Gods guests) both the approbation and com­mendation of all, and my selfe amongst the rest, though unworthy to passe my censure on such a subject.

John Downame.

RESOLUTIONS. The first Decade. Cases of Profit and Trafick.

CASE I.

Whether is it lawfull for me to raise any profit by the loane of money?

YOu may not expect a positive answer either way: Many circum­stances are considera­ble ere any thing can be determined.

First, Who is it that borrows? A poore neighbour that is constrained out of need? or a Merchant that [Page 2] takes up money for a freer trade? or a rich man that layes it out upon su­perfluous occasions?

If a poore man borrow out of necessity, you may not expect any profit for the loane: (Deuteronomy 15. 7, 8, 9.) To the poorest of all we must give, and not lend: to the next ranke of poore we must lend freely: but if a man will borrow that money (which you could improve) for the enriching of himselfe; or out of a wanton expence will be laying out that which might be otherwise usefull to you, for his meere pleasure, the case is different; For God hath not commanded you to love any man more then your selfe; and there can be no reason why you should vail your owne just advantage to another mans excesse.

Secondly, upon what termes doe you lend? whether upon an absolute compact for a set increment, (what [Page 3] ever become of the principall) or up­on a friendly trust to a voluntary sa­tisfaction according to the good im­provement of the summe lent? The former is not safe, and where there hath beene an honest indevour of a just benefit disappointed either by unavoidable casualty, or force, may not be rigorously urged, without ma­nifest oppression. The latter can be no other then lawfull: and with those that are truly faithfull and conscio­nable, the bond of gratitude is no lesse strong then that of law and justice.

Thirdly, if upon an absolute com­pact; is it upon a certainty, or an ad­venture? for where you are willing to hazard the principall, there can be no reason but you should expect to take part of the advantage.

Fourthly, where the trade is ordi­narily certaine, there are yet farther considerations to be had: to which [Page 4] shall make way by these undenyable grounds.

That the value of moneys or other commodities is arbitrable according to the soveraigne authority and use of severall Kingdomes and Coun­tries.

That whatsoever commodity is saleable, is capable of a profit in the loane of it; as an horse, or an oxe, be­ing that it may be sold, may be let out for profit.

Money it selfe is not onely the price of all commodities in all civill Nations, but it is also, in some cases, a trafiqueable commodity: the price whereof rises, and fals in severall countries upon occasion; and yeeld­eth either profit or losse in the ex­change.

There can be no doubt therefore but that money thus considered, and as it were turned merchandise, may be bought and sold, and improved to a just profit.

[Page 5] But the maine doubt is, whether money meerely cousidered as the price of all other commodities, may be let forth for profit; and be capa­ble of a warrantable increase. For the resolving whereof be it determi­ned,

That all usury, which is an abso­lute contract for the mere loane of money, is unlawfull both by law na­turall, and positive, both divine and humane.

Nature teacheth us that metals are not a thing capable of a superfoeta­tion; that no man ought to set a price on that which is not his owne time: that the use of the stock once recei­ved, is not the lenders, but the bor­rowers; for the power, and right of disposing the principall, is by contract transferred for the time to the hands of him that receives it; so as hee that takes the interest by vertue of such transaction, doth but in a man­nerly [Page 6] and legall fashion rob the bor­rower.

How frequent the * Scripture is in the prohibition of this practice, no Christian can be ignorant: And as for humane lawes raised even from the mere light of Nature amongst Heathen Nations, how odious, and se­verely interdicted usurary contracts, have been in all times, it appeares suf­ficiently by the Records which we have of the Decrees of aVid. Alexand. ab Alexand. Gen. dierum l. 1. c. 7. Egypt, of Athens, of Rome; and not onely by the restraint of the Twelve Tables, and of Claudius and Vespasian; but by the absolute forbiddance of many popular statutes condemning this usage: Tiberius himselfe, though o­therwise wicked enough, yet would rather furnish the Bankes with his owne stock, to be freely let out for [Page 7] three yeeres to the Citizens, upon onely security of the summe doubled in the forfaiture, then he would en­dure this griping & oppressive trans­action: And how wise Cato drove out all usurers out of Sicilie, and Lucullus freed all Asia from this pressure of Interest, History hath sufficiently recorded.

As for Lawes Ecclesiasticall, let it be enough that a * Councel hath de­fined, that to say usury is not a sinne, is no better then heresie: and in suc­ceeding times how liable the usurer hath ever been to the highest censures of the Church; and how excluded from the favour of Christian buriall, is more manifest then to need any proofe.

Secondly, however it is unlawfull to convenant for a certaine profit for the mere loane of money, yet there may be, and are circumstances ap­pending [Page 8] to the loane, which may ad­mit of some benefit to be lawfully made by the lender for the use of his money; and especially these two; the losse that he sustaines, and the gaine that he misses, by the want of the summe lent: For what reason can there be, that to pleasure another man, I should hurt my selfe, that I should enrich another by my owne losse?

If then I shall incur a reall losse or forfaiture by the delayed payment of the summe lent, I may justly look for a satisfaction from the borrower; yea if there be a true danger of losse to me imminent, when the transaction is made, nothing hinders but that I may by compact make sure such a summe as may be sufficient for my indemnity; And if I see an opportu­nity of an apparent profit that I could make fairly by the disbursing of such a summe bonafide, and ano­ther [Page 9] that hath a more gainfull bar­gaine in chace shall sue to me to bor­row my money out of my hand for his own greater advantage, there can be no reason why in such a case I should have more respect to his pro­fit, then my owne; and why should I not even upon pact, secure unto my selfe such a moderate summe as may be somewhat answerable to the gaine which I doe willingly forgoe, for his greater profit? Since it is a true ground which Lessius (with other Casuists) maintains against Sotus and Durand, that even our hopes of an evident commodity are valuable; and that no lesse then the feares of our losse.

Shortly, for the guidance of our either caution, or liberty in matter of borrowing, and lending, the onely Cynosure is our Charity; for in all humane and civill acts of Com­merce, it is a sure rule, That what­soever [Page 10] is not a violation of Charity cannot be unlawfull, and whatsoever is not agreeable to Charity can be no other then sinfull: And as Charity must be your rule, so your selfe must be the rule of your Charity; Look what you could wish to be done to you by others, doe but the same to others, you cannot be guilty of the breach of Charity: The maximes of Trafique are almost infinite; onely Charity (but ever inseparable from Justice) must make the application of them; That will teach you that eve­ry increase by loane of money is not usurarie; and that those which are ab­solutely such, are damnable: that will teach you to distinguish betwixt the one improvement of loane, and the other; and will tell you that if you can find out a way, whether by loane, or sale, to advance your stock, that may be free from all oppression, and extortion; and beneficiall as [Page 11] well to others, as to your selfe, you need not feare to walke in it with all honest security: but in the meane time take good heed that your heart beguile you not in mis-applications; for we are naturally too apt out of our self-love to flatter our selves with faire glozes of bad intentions; and rather to draw the rule to us, then our selves to the rule.

But whiles I give you this short so­lution, I must professe to lament the common ignorance, or mistaking of too many Christians, whose zeal just­ly cryes downe usury as a most hate­full and abominable practice, but in the meane time makes no bones of actions no lesse biting, and oppressive: they care not how high they sell any of their commodities, at how unrea­sonable rates they set their grounds, how they circumvent the buyer in their bargaines, and think any price just, any gain lawfull that they can [Page 12] make in their markets: not consider­ing that there is neither lesse, nor lesse odious usury in selling and letting, then there is in lending: It is the ex­tortion in both that makes the sinne; without which the kind or termes of the transaction could not be guilty. Surely it must needs be a great weak­nesse to think that the same God who requires mercy and favour in lend­ing, will allow us to be cruell in sel­ling; Rigour and excesse in both e­qually violates the law of commuta­tive Justice, equally crosses the law of Charity: Let those therefore that make scruple of an usurious lending, learn to make no lesse conscience of a racking bargain; otherwise their partiall obedience will argue a grosse hypocrisie; and they shal prove them­selves the worst kind of what they hate, usurers: For in the ordinary loan-usury, the borrower hath yet time to boot for his money; but here [Page 13] the buyer payes downe an excessive interest, without any consideration at all, but the sellers crueltie. For the fuller clearing of which point; where­as you aske

CASE II.

Whether may I not sell my wares as deare as I can, and get what I may of every buyer?

I answer,

THere is a due price to be set up­on every saleable commodity; else there were no commerce to be used among men: For if every man might set what rate he pleases upon his lands or goods, where should he find a buyer? surely nothing could follow but confusion, and want; for mere extremity must both make the market and regulate it.

The due price is that which cuts [Page 14] equally and indifferently betwixt the buyer and seller; so as the seller may receive a moderate gaine, and the buyer a just penny-worth.

In those countries wherein there is a price set by publique authority up­on all marketable commodities, the way of commerce is well expedited, and it is soone and easily determined, that it is meet men should be held close to the rule.

But where all things are left to an arbitrary transaction, there were no living if some limits were not set to the sellers demands.

These limits must be the ordinary received proportion of price current in the severall countries wherein they are sold; and the judgement of dis­creet, wise, experienced and uncon­cerned persons; and the well stated conscience of the seller.

If men shall wilfully run beyond these bounds, taking advantage of [Page 15] the rarenesse of the commodity, the paucity or the necessity of the buyers to enhance the price to an unreasona­ble height, they shall be guilty of the breach of charity, and in making a sinfull bargaine purchase a curse.

Not that a man is so strictly tyed to any others valuation, as that he may not upon any occasion aske or receive more then the common price; or that if the market rise he is bound to sit still: There may be just reason upon a generall mortality of cattle to set those beasts that remaine at an higher rate, or upon a dearth of graine, or other commodities, to heighten the price; but in such cases we must be so affected as that we grudge to our selves our owne gaine, that we be not in the first file of en­hancers, that we strive to be the low­est in our valuation, and labour what we may to bring downe the market; alwayes putting our selves in our [Page 16] conceits into the buyers roome; and bethinking how we would wish to be dealt with, if we were in his cloathes.

It is lawfull for the seller in his price to have regard not to his rents and disbursements onely, but to his labour, and cost, to his delay of be­nefit, to his losse in managing, to his hazard or difficulty in conveyance; but all these in such moderation, as that he may be a just gainer by the bargaine: not setting the dice upon the buyer; not making too much haste to be rich, by the secret spoiles of an oppressed neighbour.

Those things whose end is onely pleasure or ornament, as a Jewell, an Hauke, or an Hound, can admit of no certaine value; the owners affecti­on must estimate it, and the buyers desire must make up an illimited bar­gaine; but even in these, and all other commodities that carry the face of unnecessary, Conscience must be the [Page 17] Clarke of the Market; and tell us that we must so sell, as we could be willing to buy. From all which it followes,

That the common maxime current * in the shops of trade, that things are so much worth as they can be sold for; and those ordinary rules of chapmen, that men who are masters of their wares may heighten their pri­ces at pleasure, and get what they can out of all commers; that what ever they can get out of the simplicity, or necessity of the buyers, is lawfull prize, are damnably uncharitable, and unjust.

It were an happy thing, if as it is in some other well ordered nations, there were a certaine regulation of the prices of all commodities by pub­lique authority, the wisedome where­of knowes how to rise and fall accor­ding [Page 18] to the necessity of the occasion; so as the buyer might be secured from injury, and the seller restrained from a lawlesse oppression. But where that cannot be had, it is fit that Ju­stice and Charity should so far over-rule mens actions, that every man may not be carried in matter of con­tract by the sway of his owne unrea­sonable will, and be free to carve for himselfe as he lists of the buyers purse: every man hath a bird in his bosome that sings to him another note.

A good conscience therefore will tell you that if (taking advantage of the ignorance or unskilfulnesse of the buyer) you have made a prey of him by drawing from him double the worth of the commodity sold, you are bound to make restitution to him accordingly; and in a proportion so, in all the considerable summes which you shall have by your false protesta­tions, [Page 19] and oathes, and plausible inti­mations wrought out from an abused buyer; above that due price which would make you a just and rightly moderated gainer: For assure your selfe, all that you willingly doe this way is but a better-coloured picking of purses; and what you thus get is but stolne goods varnisht over with the pretence of a calling, and will prove at the last no other then gra­vell in your throat.

CASE III.

Whether is the seller bound to make knowne to the buyer the faults of that which he is about to sell?

IT is a question that was long since disputed betwixt the Heathen Sa­ges, Antipater and Diogenes, as Ci­cero * informes us: with whom Cato [Page 20] so decides it as that his judgement may justly shame and condemne the practice of too many Christians: For a full answer, due consideration must be had of divers circumstances.

First, what the nature and quality of the fault is; whether it be fleight and unimporting; or whether such as may vitiate the thing sold, and render it either unusefull or dange­rous to the buyer: or againe, whe­ther the fault be apparent, or se­cret: both these doe justly vary the case: sleight and harmles faults may be concealed without injustice; maine and importing must be signified: if apparent defects be not discerned by the buyer, he may thanke himselfe; secret faults knowne onely to the sel­ler, (such as may be prejudiciall to the buyer) ought not to be concealed: or if they be concealed so, as that the buyer payes for it as sound, and perfect, binde the seller in conscience, [Page 21] either to void the bargaine, or to give just satisfaction.

Secondly, it would be considered, whether the buyer before the bar­gaine be stricken, hath required of the seller to signifie the faults of the commodity to be sold, and out of a reliance upon the sellers fidelity and warrant, hath made up the match: or whether in the confidence of his owne skill, without moving any que­stion, he enter resolutely, (de bene essc) upon the bargained commodi­ty: If the former, a double bond lyes upon the seller to deale faithful­ly with the buyer, and therefore to let him know the true condition of the thing exposed to sale, that so either he may take off his hand; or if he shall see that notwithstanding that defect it may serve his turne, he may proportion the price accordingly: otherwise he shall be guilty (besides falshood and oppression) of perfidi­ousnesse. [Page 22] But if the buyer will per­emptorily rely upon his owne judge­ment, and as presuming to make a gaine of that bargaine (which the sel­ler out of concience of the imper­fection, sets (as he ought) so much lower as the defect may be more dis­advantageous to the buyer) will goe through with the contract, and stand to all hazards, I see no reason why the seller may not receive the price stipulated; but withall if the match may carry danger in it to the buyer, (as if the horse sold be subject to a perilous starting, or stumbling; the house sold have a secret crack that may threaten ruine; or the land sold be liable to a litigious claime which may be timely avoyded) the seller is bound in conscience (at least after the bargaine) to intimate unto the buyer these faulty qualities, that he may accordingly provide for the preven­tion of the mischiefe that may ensue.

[Page 23] But if the seller shall use art to co­ver the defects of his commodity, that so he may deceive the buyer in his judgement of the thing bargained for, or shall mix faulty wares with sound, that they may passe undisco­vered, he is more faulty then his wares, and makes an ill bargaine for his soule. In this, shortly, and in all other cases that concerne trade, these universall rules must take place. That it is not lawfull for a Christian chap­man to thrive by fraud. That he may sell upon no other termes then he could wish to buy. That his pro­fit must be regulated by his consci­ence, not his conscience by his profit. That he is bound either to prevent the buyers wrong; or if heedlesly done, to satisfy it. That he ought rather to affect to be honest, then rich: And lastly, that as he is a mem­ber of a community both civill and Christian, he ought to be tender of [Page 24] another mans indemnity no lesse then of his owne.

CASE IV.

Whether may I sell my commodities the dearer for giving dayes of pay­ment?

THere is no great difference be­twixt this case, and that of loane, which is formerly answered; save that there money is let, here com­modities money-worth; here is a sale, there a lending; in the one a transferring of the right and com­mand for the time; in the other per­petually: but the substance both of the matter and question is the same; for in both there seems to be a valu­ation of time: which whether in case of mutuation, or sale, may justly be suspected for unlawfull.

[Page 25] For answer;

There are three stages of prices acknowledged by all Casuists; the highest, which they are wont to call Rigorous; the meane, and the low­est; If these keep within due bounds, though the highest be hard, yet it is not unjust, and if the lowest be fa­vorable, yet it is not alwayes neces­sary.

If then you shall proportion but a just price to the time, and worth of your bargaine, so as the present shall passe for the easiest price, some short time for the meane, and the longer delay for the highest, I see not where­in, all things considered, you doe offend.

And certainly to debarre the con­tract of a moderate gaine for the de­lay of payment upon moneths pre­fixed, were to destroy all trade of merchandise: For not many buyers are furnished with ready money to [Page 26] buy their wares, at the Port; nor could the sellers make off their com­modities so seasonably, as to be rea­dy for further trafique, if they must necessarily be tyed to wait upon the hopes of a pecuniary sale; and not left to the common liberty of put­ting them over to whole-sale men upon trust; who upon a second trust distribute them to those, that vent them by retaile, both for days agreed upon: By which meanes the trade holds up, and the common-wealth enjoyes the benefit of a convenient and necessary commerce.

A practice that is now so habitu­ated amongst all nations into the course of trade, that it cannot well consist without it: So as nothing is more ordinary in experience then that those who are able to pay downe ready money for their wares, know to expect a better pennyworth, then those that runne upon trust: And [Page 27] there may be just reason for this dif­ference; For the present money re­ceived enables the seller to a further improvement of his stock, which lyes for the time dead in the hands that take day for their payment.

So then, it is not mere time that is here set to sale, which were odious in any Christian to bargain for; but there are two incidents into this pra­ctice which may render it not unwar­rantable. The one is the hazard of the summe agreed upon: which too often comes short in the payment: whiles those subordinate chapmen in­to whose hands the grosse summe is scattered, turne bankrupts, and for­fait their trust; so as no small losse is this way commonly sustained by the confident seller; in which regard we are wont to say justly, that One bird in the hand is worth two in the wood. The other is the cessation of that gaine which the merchant might [Page 28] in the meane time have made of the sum differred; which might in likeli­hood have beene greater then the proportion of the raised price can a­mount unto; to which may be added the foreseene probability of the rai­sing of the market in the intervall of payment: the profit whereof is pre­cluded by this meanes to the seller; whose full ingagement takes him off perhaps from a resolution to have re­served those commodities in his own hands in expectation of an opportu­nity of a more profitable utterance, had not the forwardnesse of the buy­er importuned a prevention.

Upon these considerations, if they be serious, and unfained; I see not why you may not in a due and mo­derate proportion, difference your prices according to the delayes of payment, without any oppression to the buyer: Howbeit, if any man pleaseth to be so free, as to take no [Page 29] notice of time, but to make future dayes in his account, present, I shall commend his charity, though I dare not presse his example as necessary.

The case is equally just on the be­halfe of the seller: who if he be either driven by some emergent necessity; or drawne by the opportunity of a more gainfull bargaine, to call for his money before his day, may justly be required by the late buyer, to abate of the returnable summe, in regard of the prevention of the time cove­nanted; by reason of the inconveni­ence or losse whereunto he is put up­on the suddaine revocation of that money, which is not by agreement payable till the expiration of the time prefixed. But what quantity is to be allowed on the one part, or defalked on the other, is onely to be mode­rated by Christian Charity, and that universall rule of doing what we would be willing to suffer.

CASE V.

Whether, and how farre, Monopolies are, or may be lawfull.

THe most famous Monopolie that we finde in history is that of E­gypt, Gen. 41. 56, 57. wherein the provident Patriarch Joseph, out of the fore-sight of a following dearth, bought up the seven yeares graine for Pharaoh, and layd it up in pub­lique store-houses; and in the gene­rall scarcity sold it out to the inhabi­tants, and strangers, with no small advantage; which was so farre from unlawfull, as that he thereby merited the name of the Saviour of Aegypt: * and if any worthy Patriot out of a like providence, shall before-hand gather up the commodities of his country into a publique Magazine [Page 31] for the common benefit and reliefe of the people, upon the pinch of an ensuing necessity, he is so farre out of the reach of censure, as that he well deserves a statue with the Inscription of Publique Benefactor; So as it is not the mere act of Monopolizing that makes the thing unlawfull, but the ground and intention, and the manner of carriage.

All Monopolies, as they are usu­ally practised, are either such as are allowed by Soveraigne authority, or privately contrived by secret plot and convention for a peculiar gaine to some speciall persons. If the first, it must be considered upon what rea­son that priviledge is granted, and up­on what termes; If both these be just, the grant can be no other. For first, it may not be denyed, that supreme authority, whether of Princes or States, hath power to grant such pri­viledges where they shall find just [Page 32] cause; and secondly, that there may be very just motives of granting them to some capable and worthy persons; I should be a shamed to imagine that either of these should need any pro­bation.

Doubtlesse then, there is manifest equity that where there hath beene some great merit, or charge, or dan­ger in the compassing of some nota­ble worke for a common good, the undertaker should be rewarded with a patent of a secured profit to him­selfe. As put case some wel-minded Printer (as one of the Stephens) is willing to be at an excessive charge in the faire publication of a learned and usefull worke for the benefit of the present and following ages; it is most just that he should from the hands of Princes or States receive a Priviledge for the sole impression; that he may recover, with advantage, the deep expence he hath beene at; [Page 33] Otherwise some Interloper may per­haps underhand fall upon the work at a lower rate, and undoe the first editor; whose industry, care and cost shall thus be recompenced with the ruine of himselfe and his posteri­ty; as were too easie to instance.

If a man have by notable dexterity of wit, and art; and much labour and charge after many experiments, atained to the skill of making some rare engine of excellent use for the service of his Prince and Countrey, as some singular water worke; or some beneficiall instrument for the freeing of navigable rivers from their sandy obstructions, it is all the reason in the world, that by the just bounty of Princes he should be so farre re­munerated as that he alone may re­ceive a patent of enjoying a due pro­fit of his owne invention.

But how farre it may be lawfull for a Prince not onely to gratifie a [Page 34] well-deserving Subject, with the see of his owne devise, but with a profit arising from the sole sale of marketa­ble commodities through his King­dome; or whether, and how farre in the want of monies for the necessary service of his State, he may for the publique use, raise, set, or sell mono­polies of that kind, is diversly agita­ted by Casuists; and must receive answer according to the absolute­nesse or limitation of those Govern­ments, under which they are practi­sed: But with this, that where this is done, there may be great care had of a just price to be set upon the com­modities so restrained, that they be not left to the lawlesse will of a pri­viledged engrosser, nor heightned to an undue rate by reason of a particular indulgence.

This may be enough for authori­tative Monopolies. The common sort of offensive practices this way [Page 35] are private and single, or conventi­onall, and plotted by combination; The former, as when some covetous extortioner out of the strength of his purse buyes up the whole lading of the ship, that he may have the sole power of the wares to sell them at pleasure, which, there is no feare but he will doe with rigour enough: The true judgment of which action, & the degrees of the malignity of it, must be fetcht, as from the mind, so from the management of the buyer; as be­ing so much more sinfull, as it par­takes more of oppression. The latter, when some brethren in evill conspire to prevent the harvest, to buy up, or hoord up the graine; with a purpose to starve the market, and to hatch up a dearth: A damnable practice in both kinds; and that which hath of old beene branded with a curse; nei­ther lesse full of injustice then uncha­ritablenesse; and that which cryes [Page 36] aloud, for a just punishment, and sa­tisfactory restitution.

I cannot therefore but marvaile at the opinion of learned Lessius (which he fathers also upon Molina) that too favourably minces the hainousnesse of this sin; bearing us in hand that it is indeed an offence against charity, and common profit, but not against particular Justice. His reason: To buy that corne (saith he) could not be against justice, for he bought it at the current price: Nor yet to sell it, could be against justice, because he was not tyed out of justice at that time to bring it forth to sale: When he might easily have considered, that it is not the mere act of buying, or of not selling, that in it selfe is accused for unjust; but to buy, or not to sell, with an intention, and issue of op­pressing others, and undue enriching themselves by a dearth. For what can be more unjust then for a man to [Page 37] indevor to raise himselfe by the affa­mishing of others?

Neither can it serve his turne to say, by way of excuse, that the multitude of buyers may be the cause of a dearth, and yet without sin; since they doe rather occasion, then cause a scarcity; and are so farre from in­tending a dearth in making their mar­ket, that they deprecate it, as their great affliction.

And if, by his owne confession, those who either by force, or fraud hinder the importation of corne, that a dearth may continue, are guilty of injustice, and are bound to make re­stitution both to the Commonwealth in giving cause to raise the price; as also to the Merchant, whom they have hindered, of his meet gaine; how can those be liable to a lesse sin, or punishment, that either buy up, or wilfully keep in, their graine with a purpose to begin, and hold on a [Page 38] dearth? and what lesse can it be then force or fraud, that by their crafty and cruel prevention the poor are ne­cessitated to want that sustenance, whereby their life should be main­tained?

Wise Solomon shall shut up this Scene for me. He that with-holds corne, the People shall curse him, but blessings shall be upon the head of him that selleth it. Prov. 11. 26.

CASE VI.

Whether, and how farre doth a frau­dulent bargaine bind me to perfor­mance?

HOw far in matter of law, you must advise with other Coun­saile, but for matter of conscience, take this:

Is the fraud actively yours, done by you to another? or else passively put [Page 39] by another upon you? If the former, you are bound to repent and satisfie; either by recinding the match, or by making amends for the injury: If the latter; wherein did the fraud lye? If in the maine substance of the thing sold, the bargaine is both by the very law of nature, and in conscience, void; yea indeed, none at all: as if a man have sold you copper lace for gold; or alchymie-plate for silver; the reason is well given by * Casuists: There is no bargaine without a con­sent; and here is no consent at all, whiles both parties pitch not upon the same subject; the buyer pro­pounds to himselfe gold and silver, the seller obtrudes copper, and Al­chymie; the one therefore not buy­ing what the other pretended to sell, here is no bargaine made, but a mere act of cozenage, justly liable to pu­nishment by all lawes of God and [Page 40] man. But if the fraud were onely in some circumstances; as in some faul­ty condition of the thing sold not be­fore discerned; or in the overprizing of the commoditie bought; the old rule is, Caveat emptor; You must (for ought I know) hold you to your bargain; but if that faulty condition be of so high a nature that it marres the commoditie, and makes it use­lesse to the buyer, the seller (being conscious of the fault) is injurious in the transaction, and is bound in con­science to make satisfaction; and if he have willingly over-reacht you in the price, in a considerable propor­tion is guilty of oppression.

It is very memorable in this kinde that Cicero relates to us of a fraudu­lent bargaine betwixt * Canius, a Ro­man Knight and Orator, and one Pythius a Banker of Syracuse. Canius comming upon occasion of pleading [Page 41] to the city of Syracuse, tooke a great liking to the place; and setling there, gave out that he had a great desire to buy some one of those pleasant gar­dens, wherewith, it seems, that city abounded; that he might there re­create himselfe when he pleased, with his friends.

Pythius a crafty merchant hearing of it, sends word to Canius, that he had a fair garden which he had no minde to sell; but if he pleased to make use of it for his solace, he might command it as his owne; and withall courteously invites Canius to sup with him there the day following: In the meane time being a man by rea­son of his trade of exchange, very gracious in the city, he calls the fish­ermen together, and desires them that the next evening they would fish in the stream before his garden, and bring him, what they shall have caught; Canius in due time comes [Page 42] according to the invitation, to sup­per; where there was delicate pro­vision made for him by Pythius; and store of boats bringing in their plen­tifull draughts of fish, and casting them downe at the feet of Pythius: Canius askes the meaning of this con­course of Fishermen, and store of pro­fered provision? Pythius tells him this is the commodity and priviledge of the place, if Syracuse yeeld any fish, here it is caught, and here ten­dered; Canius beleeving the report, importunes his host to sell him the ground: the owner after some seem­ing loathnesse, and squeamish relucta­tion, at last yeelds to gratifie him with the bargaine: The deare price is payd downe with much eagernesse. The new master of the place, in much pride of his purchase, the next day repaires early to his garden, invites his friends to a friday feast; and fin­ding no boat there, asks the neigh­bour [Page 43] whether it were holiday with the fishermen, that he saw none of them there; No, said the good man, none that I know; but none of the trade use to fish here; and I much marvailed at the strange confluence of their boats here yesterday: The Roman Orator was downe in the mouth; finding himselfe thus cheat­ed by the money-changer: but, for ought I see, had his amends in his hands; He meant, and desired to buy the place, though without any such accommodation; but over-bought it upon the false pretence of an ap­pendent commodity; the injury was the sellers, the losse must be the buy­ers.

But if such be the case, that you are meerly drawne in by the fraud, and would not have bought the commodity at all, if you had not beene induced by the deceit, and false oathes and warrants of the seller, you [Page 44] have just reason, either, if you may, to fall off from the bargaine; or, if the matter be valuable, to require a just satisfaction from the seller; who is bound in conscience either by an­nulling the bargaine, or abatement of price to make good your indem­nity.

In these matters of contract there is great reason to distinguish betwixt a willing deceit, and an involuntary wrong; If a man shall fraudulently sell an horse which he knowes secret­ly and incurably diseased, to another for sound; and that other, beleeving the sellers deep protestation, shall upon the same price, bonâ fide, put him off to me; I feel my self injured, but whither shall I go for an amends? I cannot challenge the immediate sel­ler, for he deceived me not; I can­not challenge the deceiver, for he dealt not with me; In humane lawes, I am left remedilesse; but in the law of [Page 45] conscience, the first seller, who ought to have born his own burthen of an inevitable losse, is bound to transferre by the hands that sold me that injuri­ous bargaine, a due satisfaction.

Neither is it other of fraudu­lent conveyances in the houses or land, how ever the matter may be intricated by passing through ma­ny perhaps unknowing hands, yet the sinne and obligation to satisfacti­on, will necessarily lie at the first door; whence if just restitution doe not follow, the seller may purchase Hell to boot.

Think not now on this discourse that the onely fraud is in selling; there may be no lesse (though not so frequent) fraud in buying also; whe­ther in unjust payment, by false coyne; or by injustice of quantities, as in buying by weights, or measures above allowance; or by wrong valua­tion of the substance & quality of the [Page 46] commodity, misknown by the seller; As for instance, A simple man, as I have known it done in the Westerne parts, findes a parcell of Ambergris cast upon the sands; he perceiving it to be some unctuous matter, puts it to the base use of his shooes, or his cart wheel; a merchant that smels the worth of the stuffe buyes it of him for a small summe; giving him a shilling or two, for that which himselfe knowes to be worth twenty pounds: the bargaine is fraudulent; and re­quires a proportionable compensati­on to the ignorant seller, into whose hands providence hath cast so rich a booty.

Shortly, in all these intercourses of trade, that old and just rule which had wont to sway the trafique of heathens, must much more take place amongst Christians, (cum bonis benè agier) that honest men must be honestly dealt with: and there­fore [Page 47] that all fraud must be banished out of their markets; or, if it dares to intrude, soundly punished; and mulcted with a due satisfaction.

CASE VII.

How far, and when am I bound to make restitution of another mans goods re­maining in my hands?

REstitution is a duty no lesse ne­cessary, then rarely practised a­mongst Christians. The Arch-publi­can Zacheus knew that with this he must begin his conversion; and that known rule of Saint Austen * is in every mans mouth, No remission without restitution. For this act is no small piece of commutative Justice; which requires that every man should have his owne: Most just therefore it is, that what you have taken, or [Page 48] detained from the true owner should be restored; neither can it be suffici­ent, that you have conceived a drye and bootlesse sorrow for your wrong­full detention, unlesse you also make amends to him by a reall compensa­tion.

But you are disabled to make re­stitution by reason of want, your will is good, but the necessity into which you are fallen, makes you un­capable of performance: See first, that it be a true, and not fained ne­cessity; Many a one, like to leud criples that pretend false soares, counterfeit a need that is not, and shelter themselves in a willing Jaile, there living merrily upon their de­frauded creditor, whom they might honestly satisfie by a well improved libertie: This case is damnably un­just; but if it be a true necessity of Gods making, it must excuse you for the time; till the same hand that did [Page 49] cast you downe, shall be pleased to raise you up againe; then, you are bound to satifie; and in the meane time, lay the case truly before your creditor, who if he be not mercilesse, where he sees a reall desire, and in­devour of satisfaction, will imitate his God in accepting the will for the deed: and wait patiently for the re­covery of your estate.

You ask now, to whom you should tender restitution?

To whom, but the owner? But he, you say, is dead; That will not ex­cuse you; he lives still in his heires; It is memorable (though in a small matter) which Seneca reports of a Pythagorean Philosopher at Athens, who having run upon the score for his shoos at a shop there; hearing that the shoomaker was dead, at first was glad to think the debt was now paid; but straight recollecting himselfe, he sayes within himself; Yet, howso­ever, [Page 50] the shoomaker lives still to thee, though dead to others; and there­upon puts his money into the shop, as supposing that both of them would find an owner. It is a rare case that a man dies, and leaves no body in whom his right survives: But if there be neither heire, nor executor, nor administrator, nor assigne; the poor (saith our Saviour) ye shall have al­wayes with you; Make thou them his heire: Turne your debt into almes.

Obj. But alas you say; I am poor my self, what need I then look forth for any other? Why may not I em­ploy my restitution to the reliefe of my owne necessity?

Sol. It is dangerous, and cannot be just for a man to be his owne carver altogether in a business of this nature; You must look upon this money, as no more yours then a strangers; and howsoever it be most true that every [Page 51] man is nearest to himselfe, and hath reason to wish to be a sharer, where the need is equall; yet it is fit this should be done with the know­ledge and approbation of others: Your Pastor, and those other that are by authority interessed in these publique cares, are fit to be acquain­ted with the case; (if it be in a mat­ter meet to be notified) as a businesse of debt or pecuniary ingagement let their wisdome proportion the distri­bution; But if it be in the case of some secret crime, as of theft, or co­zenage, which you would keep as close as your own heart, the restitu­tion must be charged upon your con­science to be made with so much more impartiality, as you desire it more to be concealed; Herein have a care of your soul, what ever becomes of your estate.

As for the time of restitution it is easily determined, that it cannot [Page 52] well be too soone for the discharge of your conscience, it may be too late for the occasions of him to whom it is due; Although it may fall out that it may prove more fit to deferre for the good of both: wherein cha­rity and justice must be called in as arbitrators; The owner calls for his money in a riotous humour to mis­spend it upon his unlawfull pleasure; if your delay may prevent the mis­chiefe, the forbearance is an act of mercy: The owner calls for a sword deposited with you, which you have cause to suspect he meanes to make use of, for some ill purpose; your forbearing to restore it is so both cha­ritable and just, that your act of de­livery of it may make you accessary to a murther. Whereto I may adde, that in the choice of the time, you may lawfully have some respect to your selfe; for if the present restitu­tion should be to your utter undoing, [Page 53] which may be avoided by some rea­sonable delay, you have no reason to shun anothers inconvenience by your own inevitable ruine; in such case let the creditor be acquainted with the necessity, his offence deprecated; and rather put your selfe upon the mercy of a Chancery, then be guilty of your owne overthrow.

But when the power is in your hand, and the coast every way clear, let not anothers mans goods or mo­ney stick to your fingers; and think not that your head can long lye easily upon anothers mans pillow.

Yea, but you say the money or goods mis-carried, either by robbery or false trust, ere you could employ them to any profit at all; This will not excuse you; after they came in­to your power, you are responsible for them; What compassion this may work in the good nature of the owner for the favour of an abate­ment, [Page 54] must be left to his own brest; your tye to restitution is not the lesse; For it is supposed, had they remain­ed in the owners hands they had been safe; if it were not your fault, yet it was your crosse, that they miscar­ried; and who should bear your crosse but your self?

Shortly then, after all pretences of excuse; the charge of wise Solo­mon must be obeyed: VVith-hold not good from the owners thereof, when it is in the power of thine hand to doe it, Prov. 3. 17.

CASE VIII.

Whether, and how farre doth a promise extorted by fear, though seconded by an oath, bind my conscience to per­formance?

A Mere promise is an honest mans strong obligation; but if it be [Page 55] withal backed with an oath, the bond is sacred, and inviolable.

But let me ask you what promise it is that you thus made, and bound; If it be of a thing unlawfull to be done, your promise and oath is so farre from binding you to perfor­mance, that it binds you onely to re­pentance that ever you made it; In this case your performancee would double and heighten your sin: It was ill to promise, but it would be worse to performe: Herod is by oath ingaged for an indefinite favour to Salome; She pitches upon John Bap­tist's head; He was sory for such a choice, yet for his oaths sake he thinkes he must make it good: Sure­ly, Herod was ill-principled, that he could think a rash oath must bind him to murder an innocent; He might have truly said, this was more then he could doe; for that we can doe, which we can lawfully doe.

[Page 56] But if it be a lawfull thing that you have thus promised, and sworne; though the promise were unlawfully drawn from you by feare, I dare not perswade you to violate it. It is true that divers learned Casuists hold, that a promise drawne from a man by feare is void, or at least revocable at pleasure; and so also the oath an­nexed, which followes the nature of the act whereto it appends; chiefly upon this ground; that both these are done without consent, mere invo­luntary acts, since nothing can be so contrary to consent as force and feare: But I dare not goe along with them; for that I apprehend there is not an absolute involuntarinesse in this ingagement, but a mixt one; such as the * Philosopher determines in the Mariner, that casts his goods o­ver board to save his life; in it selfe, he hath no will to doe it; but here [Page 57] and now upon this danger imminent, he hath an halfe-will to performe it.

Secondly, I build upon their owne ground; There is the same reason, they say, of force, and of fraud; now that a promise and oath drawne from us by fraud bindes strongly, we need no other instance then that of Joshua made to the Gibeonites; there could not be a greater fraud then lay hid in the old shooes, thred-bare garments, rent bottles, and mouldy provisions of those borderers; who under the pretence of a remote nation put themselves under the interest and protection of Israel: Josh. 9. 12, 13. &c. the guile soone proved apparent, yet durst not Joshua, though he found himselfe cheated into this covenant, fall off from the league made with them; which when, after many ages, Saul out of politique ends went about to have broken, we see how fearfully it was avenged with a grievous [Page 58] plague of famine upon Israel, even in Davids dayes, 2 Sam. 21. 1. who was no way accessary to the oppression; neither could be otherwise expiated then by the bleeding of Saul's bloody house. When once we have inte­ressed God in the businesse, it is dan­gerous not to be punctuall in the per­formance. If therefore a bold theefe taking you at an advantage have set his dagger to your brest, and with big oathes threatned to stab you un­lesse you promise and sweare to give him an hundred pounds to be left on such a day in such a place for him, I see not how (if you be able) you can dispence with the performance; the onely help is, (which is well suggest­ed by * Lessius) that nothing hinders why you may not, when you have done, call for it back againe, as un­justly extorted. And truly, we are beholden to the Jesuite for so much [Page 59] of a reall equivocation: why should you not thus right your selfe, since you have onely tyed your selfe to a mere payment of the summe? upon staking it downe for him, you are free. But if he have forc'd you to promise, and swear not to make him knowne, you are bound to be silent in this act, concerning your selfe; but withall, if you find that your silence may be prejudiciall to the publique good, for that you perceive the licen­tiousnesse of the offender proceeds (and is like so to doe) to the like mis­chiefe unto others, you ought, though not to accuse him for the fact done unto you; yet to give warning to some in authority to have a vigi­lant eye upon so leud a person, for the prevention of any further vil­lany.

But if it be in a businesse, whose perill rests onely in your selfe, the matter being lawfull to be done; [Page 60] your promise and oath (though for­ced from you) must hold you close to performance, notwithstanding the inconveniences that attend. If there­fore you are dismissed upon your Pa­role, for a certaine time, to returne home, and dispose of your affaires, and then to yeeld your selfe againe prisoner to an enemy; the obligation is so strict and firme, that no private respects may take it off: and it should be a just shame to you that a * Pagan should out of common honesty hold himselfe bound to his word, (not without the danger of tor­ment and death) when you that are a Christian slip away from your oath.

CASE IV.

VVhether those moneys or goods which I have found, may be safely taken and kept by me to my owne use.

IT is well distinguished by Sotus out of Aquinas *, that those things which may be found, are either such as call no man master, as some pearl, or precious stone, or Ambergris ly­ing upon the shore; or such as have an owner, but unknown to us, or (as we may adde, to make up the num­ber compleat) such as whose owner we know. Where the true owner is knowne, speedy restitution must fol­low; otherwise the detention is in the next door to theft; Where the com­modity found hath no owner, it just­ly falls to the right of the first finder; for both the place and the thing are masterlesse, (adespota) and common; [Page 62] offering themselves to the next com­mer: The onely difficulty is in those things which have an unknown owner: And certainly common justice and honesty suggests to us, that we may not seize on commodities of this kinde, as absolutely our own; the casualty of their mis-laying doth not alter their propriety; they are still his that lost them; though out of his sight, yet not out of his right; and even naturall Justice, would give every man his owne. The Lawes both Civill and Canon, and Muni­cipall doe sufficiently guide our practise in many particular cases. of this nature, and our Conscience must lead us to follow them: If they be quick commodities, as horses, sheep, kine, and the like, (which we call Waives and Strayes) every one knowes they are to be publiquely im­pounded, that upon search the owner may be the surer to find them; and if [Page 63] he come not in, the sooner, to be openly cryed in severall markets, that the noise of his own neglected goods may come to his care: and if, upon a continuing silence, they be put into the Custody of the Lord of the Ma­nour, (who is most likely to be re­sponsible) and he shall make use of them, before his year and day be ex­pired, he shall not doe it without some mark of distinction, that yet the true owner may know, they are not challenged by the present possessour, as his owne, but lye open to the just claime of their true master.

But if they be dead commodities, as a jewell, a purse, or some ring of price, or the like, the finder may not presently smother up the propriety of it in his owne coser; his heart tells him that the meer accident of his finding it, cannot alienate the just right of it from the true owner; he is therefore bound in conscience, in an [Page 64] honest sincerity to use all good means for the finding out of the right pro­prietary, whether by secret inquiry, or open publication: and if after due inquisition, no claime shall be made to it for the present, he shall reserve it in his hand in expectation of a just challenge: upon the assurance where­of (how late soever) he is bound to restore it to the proper owner: who, on the other side, shall faile in his du­ty of gratitude, if he returne not some meet acknowledgment of that good office, and fidelity: In all which mu­tuall carriages, we ought to be guided by those respects which we could wish tendered to our selves in the like occasions. Mean while, in all the time of our custody, we are to looke upon those commodities as strangers; ma­king account of such a potentiall right onely in them, as we are ready and desirous to resigne to the hands that purchased and lost them. On [Page 65] the contrary, no words can expresse the horrible cruelty and injustice that is wont to be done in this kinde, not onely on our shores, but in other na­tions also, upon the ship-wracked goods both of strangers, and our own compatriots; whiles in stead of com­passioning and relieving the losse, and miseries of our distressed brethren, every man is ready to run upon the spoile, and, as if it were from some plundered enemy, is eagerly busie in carrying away what riches soever come to hand, which they falsly, and injuriously term Gods Grace, when as indeed it is no other then the Devils booty. This practice can passe for no other then a meere robbery, so much more haynous, as the condition of the mis-carried owner is more misera­ble: What a foul inhumanity is this, to persecute him whom God hath smitten; and upon no other quar­rell to be cruell to our brother, then [Page 66] because the Sea hath been mercilesse? Deare countrymen, ye especially of the West, leave these abominable pil­lages to savage Nations, that know not God; and, putting on the bow­ells of tender compassion, lend your best succour rather for the rescue of poore wracked soules, and safely pre­serving that small residue of their drowned fraight, which you cannot imagine that the Sea hath therefore forborne to swallow, that you might.

CASE X.

Whether I may lawfully buy those goods which I shall strongly suspect, or know to be stolen or plundered; or, if I have ignorantly bought such goods, whe­ther I may lawfully (after knowledge of their owner) keep them as mine.

TO buy those goods which you know, or have just cause to su­spect [Page 67] to be stoln or plundered, is no better then to make your selfe acces­sary to the theft; if you doe it with an intention to possesse them as your owne; for what doe you else herein, but ex-post-facto partake with that theefe, who stole them; and incou­rage him in his leud practices? since according to the old word; If there were no receivers, there would be no theeves. Neither will it serve the turn, that in the case of plunder, there may seeme a pretence of justice, in that this is pleaded perhaps to be done by some colour of authority; for certainly where there is not law, there can be no justice, whereof law is the onely rule: Whatever then is against an established Law, in matter of right and possession, can be no other then unjust; Take heed therefore lest that heavy challenge of the Almighty be (upon this bargaine) charged upon you; Psal. 50. 18. When thou sawest [Page 68] a theefe, thou consentedst with him: These stoln waters may be sweet in the mouth, but they will be poyson in the maw, and like the water of a just jealousie, rottennesse to the belly: But if (as these ill-gotten goods are lightly cheap penny-worths) you buy them onely with an intention to gra­tifie the true owner, with an easie purchase of his owne, (which would perhaps else be unrecoverable) (whiles your profession it doe it for no other end takes off the scandall) I cannot but allow your act, and commend your charity.

But if, making use of that rule which Saint Paul gives for meat, in bargaining for any other commodi­ties, you shall extend your liberty to whatsoever is sold in the market, and shall in the exercise of that freedome upon a just and valuable considerati­on ignorantly buy those goods which you afterward heare, and know, to [Page 69] be anothers, the contract is on your part valid, and faultlesse, since your invincible want of knowledge acquits you from any guilt of consent; but withall, there is an after-game to be plaid by you: you are bound (upon just notice) to acquaint the true ow­ner with the matter, and to profer your selfe ready to joine with him in the prosecution of law, or justice upon the offender, and upon a meet satisfaction to tender him his owne.

But if the theft be onely upon pro­bability; and it be doubtfull whe­ther the goods belong to the owner notified to you, your duty is to make diligent inquiry into the businesse; and if upon due inquisition, you find too much likelihood of the theft, I dare not advise you (with some Ca­suists) to reverse the bargaine, and to returne the commodity to those false hands that purloyned it; but rather to call the probable owner, and with [Page 70] him to appeale unto just authority, for a more full examination of the right, and an award answerable to justice: but if there appeare no good grounds for an impeachment, you may peaceably sit downe in the pos­session, till further evidence may con­vince your judgment in the con­trary.

RESOLUTIONS. The second Decade. Cases of Life and Liberty.

CASE I.

Whether, and in what cases it may be lawfull for a man to take away the life of another.

HOw light a matter so­ever it may seem to the world now long soaked in blood, a mans life is most pre­cious; and may not (but upon the waightiest of all causes) be either ta­ken, or given away. The great God [Page 72] hath reserved to himselfe this prero­gative, to be the onely absolute Lord of it; neither can any creature have power to command it, but those one­ly to whom he hath committed it by speciall deputation; nor they neither, by any independent or illimited au­thority; but according as it is regu­lated by just lawes: to call for a mans life merely out of will, is no other then a Turkish tyranny.

Now the same God that hath or­dained Soveraigne powers to judge of, and protect the life of others, hath given weighty charge to every man to tender and manage his owne: which binds him to use all just means for his owne preservation; although it should be the necessitated destru­ction of another.

Let us see therefore how far and in what cases, man, that is alwayes ap­pointed to be master of his owne life, may be also master of another mans.

[Page 73] That publique justice may take a­way the life of hainous malefactors, is sufficiently knowne, to be not law­full only, but required; and indeed so necessary, that without it there were no living at all amongst men.

That in a just warre the life of an open enemy may be taken away, is no lesse evident; the onely questi­on is of private men in their owne cases.

And here we need not doubt to say that even a private man, being mor­tally assaulted, may in his owne de­fence lawfully kill another; I suppose the assault mortall, when both the weapon is deadly, and the fury of the assailant threatens death; as for some sleight and suddaine passages of a swich, or a cane, they come not un­der this consideration, although those small affronts offered to emi­nent persons prove oftentimes to be quarrells no lesse then mortall. But [Page 74] even in these assaults, (except the vi­olence be so too impetuous, that it will admit of neither parle nor pause) there ought to be (so much as may consist with our necessary safety) a tender regard and indevor to avoid the spilling of blood; but if neither perswasion, nor the shifting (what we may) our station, can abate any thing of the rage of the assailer, death must; Yea, if not my brother onely, but my father, or my sonne should in this forcible manner set upon mee, how­soever I should hazard the award of some blowes; and with teares beg a for bearance, yet, if there would be no remedy, nature must pardon me; no man can be so neare me as my selfe.

I cannot therefore, subscribe to the counsell of * Leonardus Lessius (abet­ting some ancient Casuists, and pre­tended [Page 75] to be countenanced by some Fathers) that it were meet for Cleri­call and Religious persons rather to suffer death then to kill a murtherer: since no reason can be shewed, why their life should not be as deare to them as others; or why they should be exempted from the common law of nature; or why their sacred hands should be more stained with the foule blood of a wicked man-slayer, justly shed, then any others. I am sure Phi­neas thought not so; nor Samuel af­ter him; and (which is most of all) that the honor and priviledges of the sonnes of Levi were both procured, and feoffed on them upon an injoyn­ed blood shed.

* Onely here is the favour and mer­cy of that learned Casuist, that Clerks and Votaries are not alwayes bound rather to dye, then kil: for, saith he, if such religious person should bethink [Page 76] himselfe, that he is in a deadly sin, and should thereupon feare that he should be damned, if he were killed in that wofull and desperate estate; he were then bound by all meanes to defend himselfe, and to preferre the safety of his owne soule, before the life of another: As if nothing but the feare of damnation could warrant a man for his owne safeguard; as if nothing but the danger of hell could authorize an holy person to be his owne guardian; as if the best of lives were so cheape and worthlesse, that they might be given away for no­thing: whereas contrarily Precious in the sight of the Lord is the death of all his Saints. Psal. 116. But in such a case (according to the opinion of this great * Casuist) charity to our selves doth not more arme and enforce our hand, then charity to our neighbour holds it, and binds it up: We may [Page 77] not kill lest the man slayer dying in the attempt of this murther, should everlastingly perish: Surely, I can­not but admire this unreasonable mercy in a father of the Society; Where was this consideration when so many thousands of innocent per­sons were doomed to be blowne up in a state of impenitence; whose un­repented heresie must needs have sent them up instantly to their hell?

By this reason, a malefactor if he be obdured in his sin, and professeth to be remorslesse, may not feel the stroke of Justice. Shortly then, if a man will needs be wicked to my de­struction, the evill is his owne; let him beare his owne guilt, let me looke to my owne indemnity.

The case is yet more difficult where the attempt is not upon my person, but my goods; if a man will be offe­ring to robbe my house, or to take my purse, what may I doe doe in this [Page 78] case? Surely, neither charity, nor ju­stice can disswade me from resisting; the lawes of God and man will allow me to defend my owne; and if in this resistance the theefe, or Burglayer miscarry, his blood will be upon his owne head: although in the meane time, charity forbids that this slaugh­ter should be first in my intention; which is primarily bent upon my owne safety, and the vindication of my owne just propriety: the blood that followes is but the unwilling at­tendant of my defence: of the shed­ding whereof, God is so tender, that he ordained it onely to be inoffensive­ly done in a nightly robbery; Exod. 22. 2. where the purpose of the theefe is likely to be more murtherous, and the act more uncapable of resti­tution.

What then if the theefe, after his robbery done, ceasing any further danger of violence, shall betake him­selfe [Page 79] to his heeles, and run away with my money? In such a case, if the summe be so considerable, as that it much imports my estate, how ever our Municipall lawes may censure it (with which, of old, even as killing (* se defendendo) was no lesse then felony of death) my conscience should not strike me if I pursue him with all might, and in hot chase so strike him, as that by this meanes I disable him from a further escape, for the recovery of my owne; and if hereupon his death shall follow, how­ever I should passe with men, God and my owne heart would acquit me.

Neither doubt I to say the like may be done upon a forcible attempt of the violation of the Chastity of either sexe: A case long agoe adjudged by the doome of nature it selfe in Marius the Generall of the Roman [Page 80] army (as * Cicero tells us) clearly ac­quiting a young man for killing a Colonel that would have forced him in this kind.

But I may not assent to Djomini­cus Bannez, Retrus Navarrus, and Cajetan, (though grave authors) who hold, that if a man goe about upon false and deadly criminations to sub­orne witnesses against mee, to accuse me to a corrupted Judge, with a pur­pose to take away my life, in a colour of justice, if I have no other way to avoid the malice, I may lawfully kill him: It were a wofull and dangerous case, if every man might be allowed to crave himselfe of justice; Mere accusations are no convictions; How know I what God may worke for me on the Bench, or at the barre to what evidence he may raise to cleer mee? what confusion, or contradiction he [Page 81] may cause in the mouthes of the hi­red witnesses? what change he may worke in the Judge; what interposi­tion of higher powers? There is a providence in this case to be relyed upon; which can and will bring a­bout his owne holy purposes, without our presumptuous, and unwarranta­ble undertakings.

CASE II.

Whether may I lawfully make use of a Duell for the deciding of my right, or the vindication of my honour?

I have long agoe spent my opinion upon this point, in a large episto­lar discourse, which I find no reason to alter: thither I might refer you to spare my labour; but lest perhaps that should not be at hand; shortly thus:

The sword in a private hand was [Page 82] never ordained to be a decider of any controversies, save this one, whether of the two is the better Fencer; nor yet that alwayes, since Eccles. 9. 11. The race is not to the swift, nor the bat­taile to the strong; as Solomon hath observed: It can be no better there­fore, then a more tempting of God, as * Rodriguez justly censures it, to put our selves, or our cause upon so unwarranted a triall: I find but two practices of it in the records of Scrip­ture; the one, that famous challenge of Goliah, which that proud Philistim had not made, if he had not presumed of his Giantly strength, and stature, so utterly unmatchable by all Israel, 1. Sam. 17. 24. that the whole host was ready to give back upon his ap­pearance; he knew the advantage so palpable, that none would dare to undertake the quarrell; and had still gone on to triumph over that trem­bling [Page 83] army, had not Gods inexpect­ed champion, by divine instinct taken up the monster, and vanquisht him, leaving all but his head, to bedung that earth, which had lately shaken at his terrour.

The other was in that mortall quarrell betwixt Joab and Abner, on the behalf of their two Masters, Da­vid and Ishbosheth; 2 Sam. 2. 14. wherein Abner invites his rivall in ho­nor, to a Tragical play, (as he termes it) a monomachie of twelve single combatants on either part; which was so acted, that no man went victor away from that bloody Theater; Only it is observable, that in both these conflicts still the challengers had the worst.

In imitation of which latter, I can­not allow that which I find frequent­ly done in the managing of publique hostility; that some confident Ca­valier out of mere bravery of spirit [Page 84] craves leave to put himself forth be­fore both armies, and (as in way of preface to an ensuing battaile) bids defiance to any Antagonist; An act of more valor then judgment; where­of the undertaking is void of war­rant; and the issue (lightly) of suc­cesse: whiles it pleaseth God com­monly to punish prefumption with a foyle; and the ominous miscarriage of one, proves a sad discouragement to many.

And if single fortitude be not tri­able this way, much lesse Justice in causes litigious; To make the sword arbiter of such differences, were no better then to revive the old Ordalian triall used by our Hea­then Ancestors: Sith God hath no more ordained, nor promised to bless the one then the other; And reason it selfe tels us, in how ill a con­dition that righteous cause is, which must be carried by the sharpor wea­pon, [Page 85] the stronger arme, the skilfuller fencer.

Now whereas there are two acts, as introductions into the field, a Challenge, and an Acceptation; both of them have their guilt, but the former so much more, as it hath in it more provocation to evill.

I cannot therefore but wonder at, and cry downe the opinion of Ban­nez, and Cajetan, that a man sclan­dered by an unjust accuser, may just­ly challenge him the field, and vindi­cate himselfe by the sword; A do­ctrine, which if it were allowed, and accordingly practiced, besides that it would destroy the course of justice, and wrest revenge out of the hands of the Almighty, were enough to make the world an Accldama; For who would not be his owne Judge for the Accusation; and his owne Executioner for the revenge?

There may yyt seem more inno­cence [Page 86] in the Acceptation; which makes shew of a mere passive nature, and appeares to be extorted by the insolence of a provoking adversary, whose pressures are wont to receive such construction, as that the chal­lenged party refusing, upon what ground soever, is in the vulgar opini­on proclaimed for base and recreant; and I must needs confesse, the irrita­tion diminisheth the offence; but withall, how ever the Spanish and Italian Casuists (whose Nations are wont to stand a little too highly up­on the points of a mis-called honor) are wont to passe faire interpretations of the matter, I cannot but find it deeply guilty also: for what is this other, then a consent to sin by enga­ging in blood; which by a man wise and conscionable might be turned off with a just contempt, without impu­tation of cowardise: since the plea of conscience is able to beare downe [Page 87] the vaine fancies of idle sword-men: or, if that will not be taken, the false blurres that are cast upon a worthy mans reputation by vulgar breath, deserve no entertainment but scorne; or lastly, other means lie open to both parts for the proofe of a questioned valour, which in a lawfull way the challenged is ready to embrace; he walks not unprovided about the bu­sinesse of his calling, if he be fairly set upon, on equall terms, he shall make no doubt to defend himselfe: But to make a formall businesse of a quar­rell, on either part, and to agree up­on a bargaine of blood-shedding, is wicked and damnable; and though both should come fairly off, yet the very intention to kill, is murther.

This case is so cleare, that the Councell of * Trent hath thought fit to denounce heavy sentences, and in­flict [Page 88] sharp censures upon Emperours, Kings, States, and Potentates that shall give allownce to duels within their Dominions; pronouncing them ipso jure excommunicate; and de­priving them of those townes, cities, lands, (if held of the Church) where such unlawfull acts are made: And that those who either act, or patro­nize, and by their presence assist, countenance, or abett such combats, shall incurre the sentence of excom­munication, the losse of all their goods, and perpetuall infamie; and if they dye in such quarrell, shall, as selfe-murtherers, be debarred the pri­viledge of Christian buriall.

Briefly therefore, neither your ju­stice, nor your honor may depend upon the point of private swords; and if there can be no other remedy, you must rather suffer in either, then hazard your soule.

CASE III.

Whether may it be lawfull, in case of extremity, to procure the abortion of the child, for the preservation of the mother?

I Fear want of true judgement ren­ders too many of the weaker sexe grossely culpable in matter of willing abortion; whiles, being not well principled either in nature, or grace, they thinke it not unlawfull, or at least, venially so, whether out of the fear of painfull child-birth, or for the avoidance of too great a charge, to prevent the fulnesse of their conceptions; and there­fore, either by over-vehement moti­on, or unwholsome medicine, are not unwilling to forest all nature, and to free themselves early of that which might in time prove their burden: Wherein they little know how highly [Page 90] they offend the Majesty of God in destroying his potentiall creature, and how heavy weight of guilt they lay upon their soules, whiles they in­deavour to give an undue ease to their bodies.

Your question supposes an extre­mity; and surely such it had need to be, that may warrant the intention of such an event.

For the deciding whereof, our Casuists are wont to distinguish double; both of the state of the con­ception; and of the nature of the receit: In the former; they consider of the Conception, either as it is be­fore it receive life, or after that it is animated: Before it receive life, they are wont to determine, that howso­ever it were no lesse then mortall sin, in a Physitian, to prescribe a medici­nall receit to cause abortion, for the hiding of a sinne, or any outward se­cular occasion; yet for the preserva­tion [Page 91] of the life of the mother, in an extreme danger, (I say, before ani­mation) it might be lawfull: But af­ter life once received, it were an hain­ous sinne to administer any such mor­tall remedy. The latter Casuists are better advised; and justly hold that to give any such expelling or de­structive medicine, with a direct in­tention to work an aborsement, (whe­ther before, or after animation) is ut­terly unlawfull, and highly sinfull: And with them I cannot but concur in opinion; For, after conception we know that naturally followes anima­tion, there is only the time that makes the difference; which in this case is not so considerable, as to take off a sinne: That of * Tertullian comes home to the point which both Covar­ruvias and Lessius urge to this pur­pose: Homicidii festinatio est prohibere nasci; It is but an hastening of mur­der [Page 92] to hinder that which would be borne; Homo est qui futurus est; It is a man that would be so, &c.

Upon this ground we know that in a further degree of remotenesse, a voluntary selfe-pollution hath ever been held to have so much guilt in it, as that Angelus Politianus reports it as the high praise of * Michael Verri­nus, that he would rather die, then yeeld to it: how much more, when there is a further progresse made to­wards the perfection of humane life?

And if you tell me that the life of the mother might thus be preserved, whereas otherwise both she and all the possibilities of further concepti­ons are utterly lost; I must answer you with that sure and universall rule of the Apostle, that we may not doe evill that good may come thereon, Rom. 3. 8.

[Page 93] The second consideration is of the nature of the receit, and the in­tention of the prescriber; There are prescripts that may, in, and of them­selves tend towards cure, and may have ordinarily such an effect; but yet being used and applyed for the mothers remedy, may prove the losse of the conception, being yet inani­mate; these if they be given with no other intention then the preservation of the mothers life, may be capable of excuse; for that the inconvenience (or mischief rather) which followed upon the receits was accidentall, and utterly against the mind, and hopes of him that advised them.

But if the conception be once formed, and animated, the question will be so much more difficult, as the proceedings of nature are more for­ward: Whereupon it is, that the Septuagint in their Translation (as Lessius well observes) have rendred [Page 94] that Mosaicall law (in Exod. 21.) con­cerning abortions, in these termes. If a man strike a woman that is with child, and she make an abortion, if the child were formed, he shall give his life for the life of the child; if it were not formed, he shall be punished with a pecuniary mulct to her husband *: ap­plying that to the issue, which the Vulgar Latin understands of the mo­ther; and making the supposition to be of a formation and life; which the Latine more agreeably to the Origi­nall, makes to be Death; and our English, with Castalion expresses by Mischiefe: but whether the Mischief be meant of the death of the mother, or of the late-living issue, the Scripture hath not declared: * Cornelius à La­pide taking it expresly of the mothers [Page 95] death, yet draws the judgment out, in an equall length to the death of the child, once animated; making no difference of the guilt; since the in­fants soule is of no lesse worth, then hers that beares him.

In this case of the conception ani­mated, I find the Casuists much divi­ded; Whiles some more tender then their fellowes, will not allow in the utmost extremity of a dying mother, a medicine that may be directly cura­tive to be given her, if it should be with any apparent danger of the child; in case that the child may be probably drawne forth alive; which they doe upon this false and bloodily uncharitable ground, * that the child dying without Baptisme, is liable to eternall damnation; which wofull danger therefore the mother ought [Page 96] to prevent, though with the certaine hazard of her own life: but the foun­dation of this judgement being un­sound, (since to doome the children of beleeving Parents inevitably to hell for the want of that which they are not possibly capable to receive, is too cruell and horrible) the stru­cture must needs totter. These men whiles they professe themselves too carefull of the soule of the child (which yet may perhaps be safer then their owne) seeme to be some what too hard hearted to the body of the mother.

* Others more probably hold, that if the case be utterly desperate, and it be certaine that both mother and child must undoubtedly perish if some speedy remedy be not had; it may then be lawfull to make use of such receits as may possibly give some hopes to save the mother [Page 97] though not without some perill of the child.

But all this while, the intentions, and indeavours must be no other then preservatory; however it plea­seth God to order the events: Short­ly, no man that purposely procureth an abortion, as such, can wash his hands from blood; No woman that wilfully acts, or suffers it, (how ever the secrecy may exempt her from the danger of humane lawes) can thinke to avoid those judgments of the righ­teous God, which he hath charged upon murderers.

I cannot here therefore forbeare to give the world notice of the impious indulgence of a late Pope in this kind; Sixtus quintus, who in our time sat in the See of Rome, finding the horrible effects of that liberty, which too ma­ny both secular and religious persons tooke to themselves in this matter of abortion; in a just detestation of that [Page 98] damnable practice, thought meet in much fervour of spirit to set forth his Bulla Cruciatae; then which there was never a more zealous piece, pub­lished to the world; wherein that Pope pronounces all those which have any hand in the acting or pro­curing of this wicked fact, of the e­jecting of conceptions, whether ani­mate or inanimate, formed, or in­formed, by potions, or medicaments, or any other meanes whatsoever, to have incurred both the crime and punishment of man-slaughter: charg­ing due execution to be done upon such persons accordingly: And with­all in a direfull manner excommuni­cates them, and sends them to hell, (without repentance) reserving the absolution solely to himselfe and his successors.

Now comes a late * successor of his, Gregory 14; who finding the [Page 99] sentence too unreasonably hard for his petulant, and thriftie Italians, and, indeed, for all loose persons of both sexes; mitigates the matter; and, as a Spanish Casuist expresses it truly, in the very first yeare of his Pontificate in a certaine Constitu­tion of his, dated at Rome, the last day of May, 1591. delevit censuras, quas Sixtus V. imposuerat contra fa­cientes, procurantes, &c. abolisht and took off those heavy censures, which * Sixtus had imposed; and reduced the terrible punishments by him or­dained to be inflicted unto a poore bare irregularity; and determines, that any Confessor allowed by the Ordinary, may obsolve from this sin of procured abortion: By the sleight­nesse of the censure, in effect, anima­ting the sin: An act well becomming [Page 100] the mother of Fornications: After all which Pandarisme, let all good Christians know, and resolve the crime to be no lesse then damnable.

But withall, let me advise you, (with * Martinus Vivaldus) that what I have herein written against the pro­curers of abortions, may not be ex­tended to the practice of those dis­creet Physitians, and Chirurgeans, who being called to for their aide in difficult and hopelesse child-births, prescribe to the woman in travaile, such receits, as may be like to hasten her delivery, (whether the child be alive or dead:) forasmuch as the con­ception is now at the full maturity; and the indeavour of these Artists is not to force an aborsement, but to bring forward a naturall birth, to the preservation of the mother, or the child, or both.

CASE IV.

Whether a man adjudged to perpetuall imprisonment, or death, may in con­science indeavour, and practice an escape.

WHat the Civill or Common lawes have in this case deter­mined for the publique good, comes not within the compasse of our dis­quisition: Let the Gaurdians, and Ministers of those lawes looke care­fully to the just execution of them accordingly: The question is onely of the law of private conscience; how far that will allow a man to goe in case of a sentence passed upon him, whether of death or bonds.

And first of all; if such sentence be unjustly passed upon an innocent, no man can doubt, but that he may most lawfully by all just meanes worke his owne freedome: But if [Page 102] an offender, what may he doe? The common opinion of Casuists is per­emptory; * That he that is kept in prison for any offence wherupon may follow death, or losse of limb, whe­ther the crime be publique or private, may lawfully flee from his imprison­ment, and may for that purpose use those helps of filing, or mining, which conduce to this purpose: Their ground is, that universall rule, and instinct of selfe-preservation, which is naturall to every creature; much more eminent in man, who is furnish­ed with better faculties then the rest, for the working of his own indēnity: Whereto is added that main conside­ration of Aquinas; That no man is bound to kill himselfe, but onely doomed to suffer death; not there­fore bound to doe that upon which death will inevitably follow, which [Page 103] is to wait in prison for the stroak, if he may avoid it; it is enough that he patiently submits to what the law forces upon him, though he doe not cooperate to his owne destruction: his sentence abridges him of power, not of will to depart: Whereupon they have gone so far, as to hold it in point of conscience not unlawfull for the friends of the imprisoned, to conveigh unto him files, and cords, or other instruments usefull for their escape: But herein some better-ad­vised Doctors have justiy dissented from them; as those, whose judg­ment hath not beene more favourable to malefactors, then dangerous and prejudiciall to the Commonwealth: for how safe soever this might seeme in lighter trespasses, yet if this might be allowed as in conscience lawfull to be done to the rescue of murthe­rers, traytors, or such other flagitious villains, what infinite mischiefe might [Page 104] it produce? and what were this other then to invite men to be accessary to those crimes, which the law in a due way intends to puuish? Certainly, by how much a more laudable act of Justice it is, to free the society of men from such wicked miscreants, by so much more sinfull and odious an of­fice it were, to use these sinister means for their exemption from the due course of Justice; But howsoever for another man to yeeld such unlawfull aid, is no better then a foule affront of publique Justice, and enwrappes the agent in a partnership of crime; yet the law of nature puts this liberty upon the restrained party himselfe, both to wish and indeavour his owne deliverance: Although not so; but that if the prisoner have ingaged him­selfe by solemne promise, and oath to his keeper, not to depart out of his custody; honesty must prevaile a­bove nature; and he ought rather [Page 105] to die, then violate that bond which is stronger then his irons: Very Hea­thens have by their example taught us this lesson; To regard our fideli­ty, more then our life: Thus it should be, and is, with those that are truly Christian and ingenuous, under what ever captivity; but in the case of gracelesse and felonious persons, Gaolers have reason to looke to their bolts and lockes; knowing (accor­ding to the old rule of wise Thales) that he who hath not stuck at one vil­lanie, will easily swallow another; perjury will easily downe with him, that hath made no bones of mur­ther.

But where the case is entire, no man can blame a captive if he would be free; and if he may untie the knot of a cord, wherewith he was bound; why may he not unrivet, or grate an iron wherewith he is fettered? for so much as he is not bound, to yeeld, [Page 106] or continue a consent to his owne du­rance: This charge lies upon the keeper, not the prisoner.

A man that is condemned to perish by famine, yet if he can come by su­stenance may receive, and eat it: That Athenian malefactor, in * Vale­rius Maximus, sentenced to dye by hunger, was never found fault with, that he maintained himselfe in his dungeon by the brests of his good­natur'd daughter.

And if a man be condemned to be devoured by a Lion, there can be no reason why he should not (what he may) resist that furious beast, and save his owne life.

But when I see our Romish Ca­suists so zealously tender in the case of Religious persons, as that they will not allow them upon a just im­prisonment to stirre out of those grates whereto they are confined by [Page 107] the doome of their Prelates; And when I see the brave resolutions of holy Martyrs, that even when the doores were set open, would not flee from a threatned death, I cannot but conclude, that whatsoever nature suggests to a man, to worke for his owne life or liberty, when it is for­faited to Justice, yet that it is meet and commendable in a true penitent, when he finds the doome of death or perpetuall durance justly passed up­on him, humbly to submit to the sentence; and not intertaine the mo­tions and means of a projected eva­sion: but meekly to stoop unto law­full authority, and to wait upon the issue whether of Justice, or Mer­cy: and at the worst, to say with him in the Poet, Merui, nec deprecor.

CASE V.

Whether, and how farre a man may be urged to an Oath.

AN Oath, as it is a sacred thing, so it must be no otherwise then holily used; whether on the part of the giver, or taker; & therefore may neither rashly be uttered, nor unduly tendered upon sleight, or unwarran­table occasions: We have not to doe here with a promissory oath, the ob­ligation whereof is for another inqui­sition; It is the assertory oath that is now under our hand; which the great God by whom we sweare, hath or­dained to be an end of controversies; At the mouth of two or three witnesses shall the matter be established, Deuter. 19. 15. & 17. 6. As for secular ti­tles of mine, or thine, the propriety of goods, or lands, next after written evidences, testimonies upon Oath [Page 109] must needs be held most fitly deci­sive; the onely scruples are wont to be made in causes criminall.

1. Wherein surely we may lay this undoubted ground, that no man is to be proceeded against without an accuser, and that accusation must be made good by lawfull witnesses: A Judge may not cast any man upon the plea of his owne eye-sight: should this liberty be granted, Innocence might suffer, and Malice triumph: Neither may any man be condemned upon heare-say; which how common­ly false it is, daily experience suffici­ently evinceth.

On the other side, men are apt e­nough to connive at each others wic­kednesse; and every man is loath to be an Informer, whether out of the envy of the office, or out of the con­science of his owne obnoxiousnesse.

And yet thirdly, it is requisite that care should be taken, and all due [Page 110] meanes used by authority, that the world may not be over-run with wic­kednesse; but that vice may be found out, repressed, punished.

There cannot, fourthly, be devised a fairer, and more probable course for the effecting hereof, then by the discovery upon oaths of the officers and Jurors in Assises, and Sessions; and of Churchwardens, and Side­men in Visitations.

The ground of all presentments to, or by these men must be either their owne knowledge, or publique fame, or an avowed information. Any of these gives a lawful hint to the Judge, whether Ecclesiasticall or Civill, to take full triall of the cause and person.

Knowledge is alwayes certaine, but fame is often a lyar; and therefore e­very idle rumour must not be straight taken upon trust; the inconvenience and injury whereof I have often [Page 111] seene; when some malicious person desiring to doe a despight to an inno­cent neighbour, raises a causelesse slander against him, whispers it to some dis-affected Gossips, this flyes to the care of an Apparitor; hee straight runs to the Office, and sug­gests a publique fame; the honest man is called into the Court; his re­putation is blurred in being but sum­moned; and after all his trouble and disgrace hath his amends in his owne hands.

The rule of some Casuists, that ten tongues make a fame, is ground­lesse and insufficient; neither is the number so much to be regarded as the quality of the persons.

If a whole pack of debauched companions shall conspire to staine the good name of an innocent (as we have the often knowne) it were a shamefull injustice to allow them the authors of a fame: the more judici­ous [Page 112] Doctors have defined a publique fame by the voyce of the greater part of that Community, wherein it is spread, whether Towne, Parish, City: and therein of those that are discreet, honest, well behaved. We are wont to say, Where there is much smoke, there is likely some fire: an universall report from such mouthes, therefore, may well give occasion to a further inquiry. If any mans zeale against vice will make it a matter of instance, the case is cleare, and the proceeding unquestionable; But if it be matter of mere office, the carriage of the pro­cesse may be liable to doubt; Herein it is meet such course be taken, as that neither a notorious evill may be smo­thered, nor yet innocence injured: To which purpose the most confident reporter may be called upon (because fame hath too many tongues to speak at once) to lay forth the grounds of that his whispered crimination; and [Page 113] if the circumstances appeare preg­nant, and the suspicions strong, I see not why the Ecclesiasticall Judge (for with him onely in this case I professe to meddle) may not con­vent the person accused, lay before him the crime which is secretly char­ged upon him; and either upon his ingenuous confession, enjoyne him such satisfaction to the scandalized Congregation as may be most fit, or upon his denyall urge him to cleare himselfe by lawfull witnesses, of the crime objected; Or why he may not, if he see further cause, appoint a di­screet and able prosecutor to follow the businesse in a legall way; upon whom the accused, if he be found guiltlesse, may right himselfe.

But all this while, I finde no just place for an oath to be administred to a man for his owne accusation; which certainly, is altogether both illegall, and unreasonable; If a man [Page 114] will voluntarily offer to cleare him­selfe by an Oath, out of the assured­nesse of his owne innocence, he may be allowed to be heard, but this may neither be pressed to be done, nor yet conclusive, when it is done; for both every man is apt to be partiall in his owne case, and he that durst act a foule sin will dare to face it. It was ever therefore lawfull (even when Ecclesiastical Inquisitions were at the highest) for a man to refuse answer to such questions upon oath, or other­wise, which tended to his owne im­peachment; as unjustly, and unwar­rantably proposed: and it was but a young determination of * Aquina, when he was onely a Bachelour, in the Generall Chapter at Paris, con­tradicted by all the ancient Graduates there, that when the crime is notori­ous, and the author unknowne, the [Page 115] secret offender is bound upon his Or­dinaries charge and command, to re­veale himselfe.

Even the Spanish Casuists, the great favourers and abettors of the Inquisition, teach that the Judge may not of himselfe begin an inquiry, but must be led by something which may open a way to his search, and as it were force him to his proceeding, ex officio, as publique notice, infamie, common suspicion, complaint; other­wise, the whole processe is void in law; although herein some of them goe too far in favour of their great Diana, that where the crime is known, and the author unknowne, the Judge may in a generality inquire of him that did it, and if he have any private information (though without any publique fame foregoing) he may in fome cases, raise a particular inqui­sition upon the party, and call him to defend himselfe; which course [Page 116] certainly, gives too much advantage to private malice; and opens too much way to the wronging of Inno­cence. The faire way of proceedings in all Christian Judicatures, should be, by accuser, witnesse, and Judge; in distinct persons, openly knowne; the accuser complains, the witnesse e­vinceth, the Judge sentences: The one may not be the other; much lesse all three: Were that to be allowed, who could be innocent.?

When a witnesse then is called be­fore a competent Judge, to give evi­dence upon oath concerning a third person, in a matter cognoscible by that Jurisdiction, he is bound to swear in truth, in judgement, and in righte­ousnesse; Jer. 4. 2. as for his own con­cernments, he must referre himself to the testimonies and oathes of others.

CASE VI.

Whether a Judge may upon allegations, proofes, and evidences of others, con­demne a man to death, whom he him­selfe certainly knows to be innocent.

THe question hath undergone much agitation; The streame of all ancient Divines, and Casuists runs upon the affirmative; their ground is, that the Judge as he is a publique person, so in the seat of Judicature he must exercise a publique autho­rity; and therefore waving his pri­vate knowledge and interest, must sentence according to the allegations and proofes brought before him; since he is a Judge of the cause, not of the law; whereof he is to be the servant, not the master: There he sits not to speake his owne judge­ment, but to be the mouth of the law, and the law commands him to [Page 118] judge according to the evidence; the evidence therefore being cleare and convictive, the doome can be no o­ther then condemnatory.

For my part, I can more marvell at their judgement herein, then ap­prove it; professing for the negative, with some fewer and latter Authors, upon these sure grounds.

It is an evident and undeniable law of God which must be the rule of all Judges; The innocent and the righte­ous slay thou not, Exod. 23. 7. This is a Law neither to be avoided, nor, di­spensed with: Accusations and false witnesses cannot make a man other then innocent; they may make him to seeme so; in so much as those that know not the cause exactly, may per­haps be mis-led to condemne him, in their judgments: But to the Judge, whose eyes were witnesses of the par­ties innocence, all the evidence in the world cannot make him other then [Page 119] guiltlesse; so as that Judge shall be guilty of blood, in slaying the inno­cent, and righteous.

Secondly, the law of judging ac­cording to allegations and proofs is a good generall direction in the com­mon course of proceedings; but there are cases wherein this law must vaile to an higher, which is the law of Conscience: Woe be to that man who shall tye himselfe so close to the letter of the law, as to make ship­wrack of conscience; And that bird in his bosome will tell him, that if up­on what ever pretences, he shall wil­lingly condemne an innocent, he is no better then a murtherer.

Thirdly, it is not the bare letter of the law that wise men should stand upon, but the drift and intention of the law; of that, we may in some sense say as the Apostle did of an higher law, The letter killeth. Now every reasonable man knowes that the [Page 120] intention of the law, is to save and protect the Innocent; to punish one­ly the guilty: The Judge therefore shall be a perverter of law, if, contra­ry to his knowledge, he shall follow the letter against the intention, in con­demning an Innocent.

Let no man now tell me, that it is the law that condemnes the man, and not the Judge; This excuse will not serve before the Tribunal of heaven; The law hath no tongue; It is the Judge that is lex loquens; If he then shall pronounce that sentence which his owne heart tells him is unjust and cruell, what is he but an officious mi­nister of injustice? But, indeed, what law ever said, Thou shalt kill that man whom thou knowest innocent, if false witnesse will swear him guilty? This is but a false glosse set upon a true text, to countenance a man in being an instrument of evill.

What then is in this case to be [Page 121] done? Surely, as I durst not acquit that Judge, who under what ever co­lour of law should cast away a known Innocent, so I durst not advise against plaine evidences and flat dispositions, upon private knowledge, that man to be openly pronounced guiltlesse; and thereby discharged; for as the one is a grosse violation of justice; so were the other a publique affront to the law; and of dangerous consequence to the weale-publique: Certainly, it could not but be extreamly unsafe, that such a gappe should be opened to the liberty of judgement, that a private brest should be opposed (with an apparent prevalence) against pub­lique convictions: Our Casuists have beaten their brains to find out some such evasions, as might save the in­nocent from death, & the Judge from blood-guiltinesse: Herein therefore they advise the Judge to use some se­cret meanes to stop the accusation [Page 122] or indictment; (a course that might be as prejudiciall to justice, as a false sentence) To sift the witnesses apart, as in Susannaes case, and by many subtile interogations of the circum­stances to find their variance or con­tradiction. If that prevaile not, Ca­jetan goes so farre, as to determine it meet (which how it might stand with their law, he knowes, with ours it would not) that the Judge should be­fore all the people give his oath, that he knows the party guiltlesse; as whom he himselfe saw at that very hour in a place far distant from that, wherein the fact is pretended to be done: Yea * Dominicus à Soto could be content (if it might be done with­out scandall) that the prisoner might secretly be suffered to slip out of the gaole, and save himself by flight. Others think it the best way, that the Judge should put off the cause to a su­periour [Page 123] Bench; and that himselfe should (laying aside his scarlet) come to the Bar, and as a witnesse avow up­on oath the innocence of the party, and the falsity of the accusation: Or lastly, if he should out of malice, or some other sinister ends (as of the forfaiture of some rich estate) be pres­sed by higher powers to passe the sen­tence on his owne Bench, that he ought to lay downe his Commission, and to abdicate that power he hath, rather then to suffer it forced to a wil­ling injustice.

And truly were the case mine, after all faire and lawfull indevours to ju­stify the innocent, and to avoid the sentence, I should most willingly yeeld to this last resolution: Yea ra­ther my selfe to undergoe the sen­tence of death, then to pronounce it on the knowne-guiltlesse; hating the poore pusillanimity of Dominicus à [Page 124] Soto *, that passes a nimis creditu ri­gidum, upon so just a determination; and is so weakly tender of the Judges indemnity, that he will by no meanes heare of his wilfull deserting of his office on so capitall an occasion.

In the maine cause of life & death, I cannot but allow and commend the judgment of Leonardus Lessius; but when the question is of matters Civil, or lesse criminall, I cannot but won­der at his flying off; In these where­in the businesse is but pecuniary, or banishment, or losse of an office, he holds it lawfull for the Judge, (after he hath used all meanes to discover the falsenesse of the proofes, and to hinder the proceedings, if thus he prevailes not) to passe sentence upon those allegations and probations, which himselfe knowes to be unjust.

[Page 125] The reasons pretended are as poor as the opinion; * For, saith he, the Commonwealth hath authority to dispose of the estates of the subjects, and to translate them from one man to another, as may be found most availing to the publique good; and here there appears just cause so to doe, lest the forme of publique judge­ments should be perverted, not with­out great scandall to the people; nei­ther is there any way possible to help this particular mans inconvenience and losse; therefore the Common-wealth may ordaine that in such a case the Judge should follow the publique forme of Judicature, though hereby it falleth out that a guiltlesse man is undone in his fortunes; and yet his cause knowne to be good by him that condemnes it. Thus he.

But what a loose point is this? [Page 126] why hath not a man, as true propiety in his estate as his life? or what au­thority hath the Common-wealth, causelesly to take away a mans sub­stance or inheritance (being that he is the rightfull owner) more then a piece of himselfe? When his patrimony is setled upon him and his in a due course of law and undoubted right of possession, what just power can claim any such interest in it as without any ground of offence to dispossesse him? Or what necessity is there that the form of publique judgements should be perverted, unlesse an honest defen­dent must be undone by false sen­tence? Or rather is not the forme of publique judgement perverted, when innocence suffers for the maintenance of a formality? Or how is the Judge other then a partner in the injury, if for want of his seasonable interposi­tion a good cause is lost, and a false plea prevailes?

[Page 127] That therefore, which in the se­cond place he alledgeth, that the Sub­ject can have no reason to complaine of the Judge, for as much as it is out of his power to remedy the case, and to passe other sentence then is chalk­ed forth by the rule of law; might as well be alledged against him in the plea of life and death, wherein he will by no meanes allow the Judge this liberty of an undue condemnation; neither is there any just pretence why an honest and well-minded Judge should be so sparing in a case of life, and so too prodigall in matter of livelyhood.

As for his third reason, that the mis-judgment in case of a pecuniary damage or banishment, may be after­wards capable of being reversed, and upon a new Traverse the cause may be fetcht about at further leasure; whereas death once inflicted is past all power of revocation; It may well [Page 128] inferre that therefore there should be so much more deliberation, and care had in passing sentence upon capitall matters, then civill, by how much life is more precious, and irrevocable, then our worldly substance; but it can never inferre that injustice should be tolerable in the one, not in the o­ther. Justice had wont to be painted blindfold, with a paire of scales in her hand; wherefore else, but to im­ply that he who would judge aright, must not look upon the issue or event, but must weigh impartially the true state of the cause in all the grounds, and circumstances thereof, and sen­tence accordingly? To say then that a Judge may passe a doome formally legall, but materially unjust, because the case upon a new suit may be righ­ted, were no other then to say, I may lawfully wound a man, because I know how to heale him againe.

Shortly therefore, whether it be in [Page 129] causes crimiall, or civill, whether concerning life, or estate, let those who sit in the seat of Judicature, as they will answer it before the great Judge of the world, resolve (what event soever follow) to judge righte­ous judgement, not justifying the wicked, not condemning the inno­cent; both which are equally abomi­nable in the sight of the Almighty.

CASE VII.

Whether, and in what cases am I bound to be an accuser of another.

TO be an accuser of others, is a matter of much envy, and dete­station; in so much as it is the style of the Devill himselfe to be accusator fratrum, an accuser of the brethren: Yet not of his owne brethren in evill; It was never heard that one evill spi­rit accused another; but of our bre­thren; [Page 130] Revel. 12. 10. it was a voice from heaven which called him so: Saints on earth are the brethren of the glorious spirits in heaven; It is the wickednes of that malicious spirit to accuse Saints: But though the act be grown into hatred, in respect both of the agent and of the object; yet certainly there are cases wherein it will become the Saints to take up­on them the person, and office of ac­cusers.

Accusation therefore is either volun­tary, or urged upon you by the charge of a superiour. Voluntary is either such as you are moved unto by the conscience of some hainous and notorious crime committed, or to be committed by another, to the great dishonor of God, or danger of the common peace, whereto you are privy: or such as whereunto you are tyed by some former engagement of vow, or oath: In the former kinde; [Page 131] a worthy Divine in our time travai­ling on the way, sees a leud man com­mitting abominable filthinesse with a beast; the sin was so foule and hate­full, that his heart would not suffer him to conceale it; hee therefore ha­stens to the next Justice, accuses the offender of that so unnaturall villa­ny; the party is committed, endicted, and upon so reverend (though single) testimony found guilty.

Or, if in the case of a crime inten­ded, you have secret, but sure intelli­gence, that a bloudy villaine hath plotted a treason against the sacred person of your Soveraigne, or a mur­ther of your honest neighbour; which he resolves to execute; should you keepe this fire in your bosome, it might justly burne you. Whether it be therefore for the discovery of some horrible crime done, or for the prevention of some great mischiefe to be done, you must either be an accu­ser, or an accessary.

[Page 132] The obligation to accuse is yet stronger where your former vow or oath hath fore-ingaged you to a just discovery; You have sworn to main­taine and defend his Majesties royall person, state, dignity; and to make knowne those that wilfully impugne it; if now, you shall keepe the secret counsels of such wicked designments, as you shall know to be against any of these, how can you escape to be involved in a treason, lined with per­jury?

These are accusations which your conscience will fetch from you, un­asked; But if being called before lawfull authority, you shall be requi­red upon oath, to testifie your know­ledge even concerning offenders, of an inferiour nature; you may not de­tract your witnesse, though it amount to no lesse then an accusation. Yet there are cases, wherein a testimony thus required, tending to an accusa­tion, [Page 133] may be refused; As in case of duty, and nearenesse of naturall, or civill relation; It were unreasonably unjust for a man to be pressed with in­terrogations, or required to give ac­cusatory testimonies in the case of pa­rents, or children, or the partner of his bed: Or if a man out of remorse of conscience shall disclose a secret sin to you formerly done, in a desire to receive counsaile, and comfort from you; you ought rather to endure your soule to be fetcht out of your body, then that secret to be drawne out of your lips: Or if the question be illegall, as those that tend directly to your owne prejudice; or those which are moved concerning hidden offences, not before notified by pub­lique fame, or any lawfull ground of injury, which therefore the Judge hath no power to aske; In these cases, if no more, the refusall of an accusa­tion, though required, is no other then justifiable.

[Page 134] But where neither the conscience of the horridnesse of a crime done; nor prevention of a crime intended, nor duty of obedience to lawfull autho­rity; nor the bond of an inviolable pre-ingagement, call you to the Bar; It is not a more uncharitable, then thanklesse office to be an accuser: Hence it is that Delators, and Infor­mers, have in all happy and well-go­verned States, been ever held an infa­mous and odious kind of Cattell. A Tiborius, and a Domitian, might give both countenance and rewards to them, as being meet factors for their tyranny, but a Vespasian, and Titus, and Antoninus Pius, and Macrinus, or what ever other Princes carryed a tender care to the peace and welfare of their subjects, whipt them in the publique Amphitheater, and abando­ned them out of their dominions, as pernicious, and intolerable. And as these mercenary Flies, whether of [Page 135] State, or of Religion, are justly hate­full, next to the publique executio­ners; so certainly, those busie spirited men, which out of the itching humour of medling, run from house to house, with tales of private detraction, may well challenge the next roome in our detestation. This together with the other, is that which God so strictly forbids in his Law, Levit. 19. 16. Thou shalt not goe up and downe as a Tale­bearer amongst thy people, neither shalt thou stand against the bloud of thy neighbour: I am the Lord. A practice which wise Solomon, though a great King; and (as one would think) out of the reach of tongues, cryes downe with much feeling bitternesse; Prov. 18. 8. The words of a Tale bearer are as wounds, and they goe downe into the innermost parts of the belly: No lesse then five severall times in his divine * Proverbs, inveighing sharply (as if [Page 136] himselfe had been stung in this kind) against these close, back-biting ca­lumniations.

Shortly then, accuse when you are forced, either by the foulenesse of the fact, or the necessity of your duty: otherwise reserve your tongue for bet­ter offices.

CASE VIII.

Whether a prisoner indicted of a feloni­ous act, which hee hath committed, and interogated by the Judge con­cerning the same, may stand upon the deniall, and plead not guilty.

THe Casuists vary; and out of re­spect to their owne Lawes, are much perplexed in their resolutions: making the great scruple to be in the Juridicall interrogations, (which if the Judge have not proceeded in the due formes of law required in such [Page 137] cases) may warrant the offenders de­niall; and secondly, making diffe­rence of the quality of the offence, and danger of the punishment; which if no lesse then capitall, may (say they *) give just ground to the ac­cused party, either to conceale the truth, or to answer with such am­phibolies, and equivocations, as may serve to his owne preservation; in which course, naturall equity will beare him out, which allowes every man to stand upon his owne defence: And the case I perceive is aggravated in forraine parts, as by the Rack, so by an Oath administred to the per­son accused, (which they call Jura­mentum calumniae) which Lessius just­ly calls a spirituall torture, by the vertue whereof, he is solemnly urged, not to deny what he knowes, or be­leeves to be true, concerning the bu­sinesse [Page 138] questioned; A practise, which I cannot blame * Lessius, if he pro­fesse to wish that the Pope, and all secular Princes, would joine together to abrogate; as being an evident oc­casion of much perjurie. To lay downe and determine the case as it stands with us in our ordinary pro­ceedings of justice; it must be pre­mised:

1. To deny a known truth, and to averre a wilfull lye, cannot be other then a sin.

2. There is a vast difference be­twixt concealing a Truth and deny­ing it.

3. It may be sometimes lawfull to conceale some Truths, though ne­ver lawfull to deny, or contradict them.

4. No man can be bound directly to accuse himselfe.

5. It is consonant to naturall equi­ty, [Page 139] that a man for the saving of his life should use the help of all evasions that are not sinfull.

6. It cannot be sinfull to put him­selfe upon a legall triall in a case im­porting his life.

7. There is no place for a legall triall, where there is an absolute con­fession of guiltinesse.

These positions being pre-required; I say, that it is lawfull for the priso­ner, though convinced in his consci­ence of the fact, yet to plead Not guilty to the Indictment at the Barre: for as much as he doth therein, accor­ding to the sense both of the Judge, and Jury, onely hide and keep back that Truth; the finding out, and evi­ction whereof, lyes upon their further search and proofe; so as he doth, in pleading Not guilty, in effect as good as say, What ever I find in my selfe, I have no reason to confesse my guil­tinesse; I stand upon my lawfull de­fence, [Page 140] and cast my selfe upon my just tryall; Yeelding my selfe onely so far guilty, as your evidence and proofes can make me: let Justice passe upon me, I have no reason to draw on my owne condemnation: The plea thus construed is lawfull, and just; where­in not the shuffling equivocations of the offendor, but the upright verdict of a legall Jury must carry the cause: to which purpose, that which sounds as a deniall in the accused, is nothing else but a professed referring himselfe to a juridicall tryal of that fact which he is not bound to confesse.

But when the hand of God hath once found out the man in his sinne; and he finds himselfe legally convinced of his crime; it greatly behoves him (as Joshua charged Achan after the lot had discovered his sin) to give glory to God, in a free and full confession of his wickednesse, and to be more open and ingenuous in his acknow­ledgment, [Page 141] then he was close, and re­served in his plea: wherein as he shall discharge his conscience to that great and holy God, whom he hath offen­ded, so he shall thus tender some kind of poore satisfaction to that society of men, whom he hath scandalized by his crime. In which regard I can­not but marvell at the strange deter­mination of learned * Azpilcueta, the Oracle of Confessaries, who teaches, that the prisoner, who being rightly interrogated by the Judge, stood stiffly in deniall of the fact, and is up­on his Condemnation, carried to his execution, is not bound at his death to confesse the crime to the world, if he have before secretly whispered it in the eare of his ghostly father, and by him received absolution.

A sentence that allowes the smo­thering of truthes, and the strangling of just satisfaction to those who are [Page 142] concerned, as patience, in the offence; and lastly, highly injurious to pub­lique Justice; whose righteous sen­tence is by this meanes left questio­nable, and obnoxious to unjust cen­sure.

How much more requisite were it that a publique confession should, in this case, save the labour of a pri­vate, whereby certainly, the soule of the offender would be more sensibly unloaded, justice better vindicated, more glory would accrew to God; and to men, more satisfaction.

But however it be lawfull for the accused to stand upon these points of legality in the proceedings against him: yet for my owne part; should I be so farre given over, as to have my hand in blood; and thereupon be arraigned at the barre of publique Justice; I should out of just remorse be the first man that should rise up a­gainst my selfe; and (which in other [Page 143] mens cases were utterly unlawfull) be my owne accuser, witnesse, and Judge: and this disposition I should rather commend in those, whose con­science hath inwardly convicted them for haynously criminous: that since they had not the grace to resist so fla­gitious a wickedness; they may yet endevour to expiate it, before men, with an ingenuous confession: as be­fore God, with a deepe and serious repentance.

CASE IX.

Whether, and how farre a man may take up armes in the publique quarrell of a war.

WArre is no other then a neces­sary evill, necessary in relation to peace: onely, as that without which so great a blessing cannot be had: As the wise woman said to [Page 144] Joab, 2 Sam. 20. 18. they should first treat with the men of Abel, ere they smite: & upon the charge of the Lord of hosts, Deut. 20. 10. conditions must first be tendered even to hea­then enemies, before any acts of ho­stility shall be exercised; where this which is the worst of all remedies, proves needfull, if you aske how farre it is lawfull to ingage; I must aske you, (ere I can returne answer) first of the justice of the quarrell: for surely, where the warre is knowne to be unjust, the willing abettors of it cannot wash their hands from blood: To make a warre just (as our Casuists rightly) there must be a lawfull au­thority to raise it; a just ground whereon to raise it; due formes and conditions in the raising, managing, and cessation of it: That no authori­ty lesse then supreame can wage a warre, it is cleare in nature; for that none other besides it can have power [Page 145] of life and death; which both must lye at the publique stake in warre.

That none but a just and weighty cause can be the ground of a warre, every mans reason apprehends; for how precious a blessing had that need to bee, that is held worth the purcha­sing with the price of so much bloud; and how heavy a curse must that needs be, which can onely be remedi­ed, or prevented by so grievous a judgment as warre?

That due termes and conditions are requisite to be offered ere warre be undertaken; and observed in the managing, and ceasing of it, huma­nity it selfe teacheth us; without which men should run upon one ano­ther with no lesse fury and disorder then beasts; not staying for any capi­tulation but the first advantage; nor terminating their discord in any thing but utter destruction.

Where all or any of these are wan­ting, [Page 146] the warre cannot be just: and where it is known not to be such, woe be to those hands that are willingly active in prosecuting it.

Now the care of all these three maine requisites must lie chiefly upon that Power which is entrusted by the Almighty with the over-ruling of publique affaires: For the Subject, as he is bound to an implicite reliance upon the command of the supreme power; so (unlesse it be in a case no­toriously apparent to be unjust) must yeeld a blindfold obedience to autho­rity; going whither he is led, and do­ing what he is bidden; But if the case be such, as that his heart is fully con­vinced of the injustice of the enter­prise, and that he clearly finds that he is charged to smite Innocence and to fight against God; I cannot blame him, if with Sauls footmen (when they were commanded to fall upon the Priests of the Lord) he withhold [Page 147] his hand, and craving pardon, show lesse readinesse to act, then to suffer.

In the second place, I must aske you with what intentions you ad­dresse your selfe to the field; If it be out of the conscience of maintaining a just cause, if out of a loyall obedi­ence to lawfull authority: I shall bid you go on, and prosper: but if either malice to the parties opposed, and therein desire of revenge, or a base covetousnesse of pay, or hope and desire of pluuder have put you into armes: repent and withdraw: For what can be more sordid, or cruell, then to be hired for dayes-wages to shed innocent blood? Or what can be more horribly mischievous for a man, then to kill, that hee may steale?

Upon your answer to these questi­ons it will be easie for me to returne mine; In a just quarrell, being there­to lawfully called, you may fight; [Page 148] warrantable authority hath put the sword into your hand; you may use it. But take heed that you use it with that moderation, and with those af­fections that are meet: Even an au­thorized hand may offend in striking; Magistrates themselves, if there be revenge in their executions, doe no other then murder: Far be it from you to take pleasure in blood; and to enjoy another mans destruction: If (especially in those wars that are in­testine) you shall mingle your teares with the blood which you are forced to spill, it may well become Christian fortitude.

Shortly; doe you enter into your armes, imprest, or voluntary? If the former, you have nothing but your owne heart to looke unto for a fit dis­position; That Power, whom you justly obey, must answer for the cause; If the latter, you have reason diligently to examine all the neces­sary [Page 149] points, of the Power, of the cause, of your intentions: as well considering that in a warre it is no lesse impossible that both sides should be in the right, then that in a contra­diction both parts should be true: Here therefore your will makes it selfe the Judge of all three; and (if any of them faile) leaves you answe­rable for all miscarriages; so as you had need to be carefully inquisitive, in this case, upon what grounds you goe; that so (whatsoever may befall) a good conscience may beare you out in the greatest difficulties, and saddest events that are wont to at­tend upon warre.

CASE X.

Whether and how farre a man may act towards bis owne Death.

DIrectly to intend or indeavour that which may worke his owne death, is abominably wicked, and no lesse then the worst murder.

For if a man may not kill another, much lesse himselfe; by how much he is nearer to himselfe then to ano­ther: and certainly if we must regu­late our love to another by that to our selves, it must follow that love to our selves must take up the first roome in our hearts: and that love cannot but be accompanied with a detestation of any thing that may be harmfull to our selves. Doubtlesse, many that can be cruell to another are favourable enough to themselves; but never man that could bee cruell to himselfe would be sparing of ano­thers blood.

[Page 151] To will or attempt this is highly injurious to that God, whose we one­ly are; who hath committed our life as a most precious thing to our trust, for his use, more then our owne; and will require from us an account of our managing of it, and our parting from it. It is a foule misprision in those men, that make account of themselves as their owne, and there­fore that they are the absolute Lords of their life: Did they give them­selves their owne being; had they nothing but meere nature in them; can they but acknowledge an higher hand in their formation, and anima­ting? What a wrong were it there­fore to the great Lord and giver of life, to steale out of the world, with­out his leave that placed us there? But much more if Christians, they know themselves, besides, dearly paid for; and therefore not in their own disposing, but in his that bought [Page 152] them. Secondly, most desperately injurious to our selves, as incurring thereby a certaine damnation (for ought appears to lookers on) for e­ver, of those soules which have wil­fully broken Gods more easie, and temporary prison, to put themselves upon the direfull prison of Satan to all eternity.

Nature it selfe, though not enligh­tened with the knowledge of the estate of another world, found cause to abhor this practice: However the Stoicall Philosophers, and some high Roman spirits following their do­ctrine, have been liberall of their lives; the Thebans of old professed detestation of this worst of prodiga­lities: And the Athenians enacted that the hand which should be guilty of such an act, should be cut off, and kept unburied; And it was wisely ordained by that Grecian Common-wealth, when their Virgins (out of a [Page 153] peevish discontentment) were grown into a selfe-killing humour, that the bodies of such offenders should be dragged naked through the streets of the city; the shame whereof stopped the course of that mad resolution.

It is not the heaviest of crosses, or the sharpest bodily anguish that can warrant so foule an act. Well was it turned off by Antisthenes of old, when in the extremity of his paine he cried out; Oh who will free me from this torment! and Diogenes reach't him a poynard, wherewith to dis­patch himselfe: Nay, said he, I said, from my torment, not from my life: as well knowing it neither safe, nor easie, to part with our selves up­on such termes.

Farre, farre be it from us to put in­to this ranke and file those worthy Martyrs, which in the fervor of their holy zeale have put themselves for­ward to martyrdome; and have cou­rageously [Page 154] prevented the lust and fury of Tyrans, to keep their chastity, and faith inviolable. I looke upon these as more fit objects of wonder, then either of censure, or imitation. For these (whom we may well match with Sampson, and Eleazar) what Gods spirit wrought in them, he knowes that gave it; Rules are they by which we live, not examples.

Secondly, However we may not by any meanes directly act to the cut­ting off the thred of life; yet I cannot but yeeld with learned * Lessius, that there may fall out cases, wherein a man may (upon just cause) doe, or forbeare something whereupon death may indirectly ensue: Indirectly, I say, not with an intention of such issue. For it is not an universall charge of God, that no man should upon a­ny occasion expose his life to a pro­bable danger; if so, there would be [Page 155] no warre, no trafique; but onely that he should not causelesly hazard him­selfe; nor with a resolution of wilfull mis-carriage.

To those instances he gives of a souldier that must keep his station, though it cost him life: of a prisoner that may forbeare to flee out of pri­son, though the doors be open: of a man condemn'd to dye by hunger, in whose power it is to refuse a suste­nance offered: of a man that latches the weapon in his own body to save his Prince: or of a friend, who when but one loafe is left to preserve the life of two, refraines from his part and dyes first: or that suffers another to take that planke in a shipwrack which himselfe might have prepos­sessed, as trusting to the oares of his armes; or that puts himselfe into an infected house out of mere charity to tend the sick, though he know the contagion deadly; or in a sea-fight [Page 154] [...] [Page 155] [...] [Page 156] blowes up the deck with gunpowder, not without his owne danger; or when the house is on fire casts him­selfe out at the window with an ex­treame hazard: To these, I say, may be added many more; as the cutting off a limb to stop the course of a Gan­grene; to make an adventure of a dangerous incision in the body, to draw forth the Stone in the bladder; the taking of a large dose of opiate pills, to ease a mortall extremity; or lastly, when a man is already seized on by death, the receiving of some such powerfull medicine, as may fa­cilitate his passage (the defect of which care and art, the eminently­learned Lord * Verulam justly com­plaines of in Physitians:) In these, and the like cases, a man may lawful­ly doe those things which may tend, in the event, to his own death, though without an intention of procuring it.

[Page 157] And unto this head must be refer­red those infinite examples of deadly sufferings for good causes, willingly embraced for conscience sake. The seven Brethren in the Maccabees, (al­luded to by S. Paul to his Hebrews, Heb. 11. 35.) will and must rather en­dure the butchering of their owne flesh, then the eating of swines-flesh, in a willing affront of their law; Da­niel will rather die then not pray. Shadrach, Meshach, and Abednego will rather fall downe bound into the fiery Fornace sevenfold heated, then fall downe before the golden image.

And every right-disposed Christi­an will rather welcome death then yeeld to a willing act of Idolatry, re­bellion, witchcraft: If hereupon death follow by the infliction of others, they are sinfull agents, he is an innocent sufferer.

As for that scruple among our Ca­suists, whether a man condemned to [Page 158] dye by poyson, may take the deadly draught that is brought him; it is such, as wise Socrates never made of old, when the Athenians tendred him his hemlock; and indeed it may as well be disputed, whether a man condemned to dye by the axe, may quietly lay downe his head upon the block; and not, but upon force, yeeld to that fatall stroke. A juster scruple is, whether a man condemned to a certaine and painfull death, which he cannot possibly eschew, may make choice rather of a more easie passage out of the world; where­in I marvell at the indulgence of some Doctors that would either ex­cuse, or mince the matter. For al­though I cannot blame that naturall disposition in any creature, to shrinke from paine, and to affect (what it may) the shifting from extremity of mise­rie: yet for a Christian so to doe it, as to draw a greater mischief to him­selfe, [Page 159] and an apparent danger to his soule, it cannot justly beare any other then a hard construction. For thus to carve himselfe of justice, is mani­festly to violate lawfull authority; and whiles he would avoid a short paine, to incurre the shame and sin of a selfe-executioner.

But if in that way, wherein the doome of death is passed, a man can give himself ease, or speed of dissolu­tion (as when a Martyr being adjudg'd to the fire, uses the help of a bag of Gun-powder, to expedite his passage) it cannot bee any way judged unlaw­full: The sentence is obeyed, the ex­ecution is accordingly done; and, if the patient have found a shorter way to that end which is appointed him, what offence can this be either to the law, or to the Judge?

RESOLUTIONS. The third Decade. Cases of Piety and Religion.

CASE I.

Whether upon the appearance of Evill Spirits we may hold discourse with them; and how we may demeane our selves concerning them.

THat there are evill spirits, is no lesse certaine then that there are men: None but a Sadduce, or an Atheist can make question of it.

That evill spirits have given cer­taine [Page 162] proofes of their presence with men, both in visible apparitions, and in the possessions of places, and bo­dies, is no lesse manifest, then that we have soules, whereby they are discerned.

Their appearances are not wont to be without grievous inconveniences; whether in respect of their dreadful­nesse; or their dangerous insinua­tions.

It is the great mercy of the God of spirits that he hath bound up the evill Angels in the chaines of darke­nesse, restraining them from those frequent, and horrible appearances which they would otherwise make to the terrour, and consternation of his weake creatures.

Whensoever it pleaseth the Al­mighty, for his owne holy purposes, so farre to loosen, or lengthen the chaines of wicked spirits, as to suffer them to exhibit themselves in some [Page 163] assumed shapes unto men, it cannot but mainly import us to know, what our deportment should be concerning them. Doubtlesse to hold any faire termes of commerce, or peace (much more of amitie or familiarity) with them, were no better then to professe our selves enemies to God; for such an irreconcileable hostility there is betwixt the holy God, and these ma­lignant spirits, that there can be no place for a neutrality in our relation to them: so as he is an absolute ene­my to the one, that bids not open defiance to the other.

As therefore we are wont by our silence to signifie our heart-burning against any person (in that we abide not to speake unto those whom we hate,) so must we carry our selves towards evill spirits: And if they beginne with us as that Devill did in the Serpent with Eve; how unsafe and deadly it may be to hold chat [Page 164] with them, appears in that first ex­ample of their onset; the issue where­of brought misery, and mortality up­on all mankinde; yet then, were our first parents in their innocency, and all earthly perfection: we now so tainted with sin, that Satan hath a kinde of party in us, even before his actuall temptations.

As therefore we are wont to say that the fort that yeelds to parle is halfe won; so may it prove with us, if we shall give way to hold discourse with wicked spirits; who are farre too crafty for us to deale withall: having so evident an advantage of us, both in nature (we being flesh and blood, they spirituall wickednesses) and in dura­tion, and experience, we being but of yesterday, they coetaneous with the world and time it selfe.

If you tell me that our Saviour himselfe interchanged some speeches with the spirits whom he ejected; it [Page 165] is easily answered, that this act of his was never intended for our imitati­on; sith his omnipotence was no way obnoxious to their malice, our weaknesse is.

I cannot therefore but marvell at the boldnesse of those men who pro­fessing no small degree of holinesse, have dared to hold familiar talk with evill spirits, and could be content to make use of them for intelligence; as the famous Jesuite, in our time, Pere Cotton; who having provided 50. questions to be propounded to a De­moniack (some concerning matters of learning, some other matters of State, concerning the then French King and the King of England) and having them written downe under his owne hand to that purpose; being questioned concerning it, answered, that he had licence from Rome to tender those demands: as I received it upon certaine relation from the [Page 166] learned Dr. Tilenus with many pre­gnant and undeniable circumstances, which I need not here expresse. Al­though this need not seeme strange to me, when I find that * Navarre de­termines plainly, that when evill spi­rits are present (not by our invocati­on) as in possessed bodies, it is lawfull to move questions to them, (so it be without our prayers to them, or pact with them) for the profit of others; yea thus to confer with them, even out of vanity, or curiosity, is but venial at the most: Thus he: with whom Lessius goes so far as to say; Licitum est pe­tere verbo à Diabolo ut nocere destnat &c. It is lawfull to move the Devill in words to cease from hurting, so that it be not done by way of depre­cation, or in a friendly compliance, but by way of indignation: A di­stinction which I confesse past the ca­pacity [Page 167] of my apprehension; who have not the wit to conceive how a man can move without implying a kinde of suite; and how any suit can consist with an indignation.

It savours yet of a more heroicall spirit which the Church of Rome pro­fesseth to teach and practice, the eje­ction of evill spirits by an imperious way of command; having commit­ted to her Exorcists a power of Adju­ration, to which the worst of Devils must be subject; a power more easily arrogated then really exercised: In­deed this over-ruling authority was eminently conspicuous, not onely in the selected twelve, and the seventy Disciples of Christ, who returned from their Embassie with joy, (Luk. 10. 17.) that the Devils were subject to them through his name, but even in their holy Successors of the Primitive Church, whiles the miraculous gifts of the holy Ghost were sensibly pow­red [Page 168] out upon men; but if they will be stil challenging the fame power; why doe they not as wel lay claime to the speaking of strange tongues? (Mar. 16. 17. 18.) to the super-naturall cure of all diseases? to the treading on serpents and scorpions? to the drink­ing of poysons without an Antidote? and if they must needs acknowledge these faculties above their reach, why doe they presume to divide the Spi­rit from it selfe; arrogating to them­selves the power of the greatest workes, whiles they are professedly defective in the least? wherein surely, as they are the true successors of the sonnes of Sceva, Act. 19. 13, 14, 15, 16. who would be adjuring of Devils by the name of Jesus, whom Paul preached, so they can looke for no other intertainment then they found from those Demoniacks, which was to be baffled, and beaten, and woun­ded.

[Page 169] Especially, if we consider the foule superstition, and grosse magick which they make use of in their Conjurati­ons; by their owne vainly-devised Exorcismes, feoffing a supernaturall vertue upon drugges, and herbes, for the dispelling, and staving off all evill spirits; Because the bookes are not perhaps obvious, take but a taste in one, or two: * In the treasure of Exorcismes, there is this following Benediction of Rue, to be put into an hallowed paper, and to be carried about you and smelled at for the re­pelling of the Invasion of Devills . I conjure thee ô thou creature of Rue, by the holy Lord, the Father, the al­mighty and eternall God, which bringeth forth grasse in the moun­taines, [Page 170] and herbs for the use of man: And which by the Apostle of thy Sonne our Lord Jesus Christ, hast taught, that the weake should eat herbes: I conjure thee that thou be blessed, and sanctified to retaine this invisible power and vertue, that who­soever shall carry thee about him, or shall smell to thee, may be free from all the uncleannesse of Diabolicall in­fatuation; and that all Devils, and all witchcrafts may speedily fall from him, as herbes or grasse of the earth: through the same our Lord Je­sus Christ, which shall come to judge the quick and the dead, and the world by fire. The like is prescribed to be done to the seeds of Hypericon or S. Johns wort.

* Adde to this, the horrible fumi­gation to this purpose as it followes. I conjure thee ô thou creature of [Page 171] Galbanum, Sulphur, Assa faetida, Ari­stolochium, hypericon and Rue, by the † living God; by the † true God &c. by Jesus Christ &c. that thou be for our defence; and that thou be made a perpetuall fumigation, exor­cised, † blessed, and consecrated to the safety of us, and of all faithfull Christians; and that thou be a per­petuall punishment to all malignant spirits, and a most vehement, and in­finite fire unto them, more then the fire and brimstone of hell is to the in­fernall spirits there, &c.

But what doe I trouble you with these dreadfull incantations, whereof their allowed bookes of Conjuration are full? To these I may adde their application of holy water, (wherein they place not a little confidence) which (saith * Lessius) receives the force from the prayers of the Church, by the meanes whereof it comes to [Page 172] passe, that it is assisted with divine power; which (as it were) rests up­on it, and joynes with it, to the aver­ting of all the infestations of the De­vill: But faine would I learne where the Church hath any warrant from God to make any such suit; where any overture of promise to have it granted? what is their prayer with­out faith? and what is their faith, without a word? But I leave these men (together with their Crosses, and Ceremonies, and holy reliques, wherein they put great trust in these cases) to their better informed thoughts. God open their eyes that they may see their errors.

For us, what our demeanure should be in case of the appearance, or mo­lestation of evill spirits, we cannot desire a better patterne then S. Paul; his example is our all-sufficient in­struction; 2 Cor. 12. 7, 8. who when the messenger of Satan was sent to [Page 173] buffet him, fell presently to his pray­ers; and instantly besought God thrice, that it might depart from him. Lo he that could command e­vill spirits out of the bodily possession of others; when it comes to his owne turne to be buffeted by them, betakes himselfe to his prayers to that God whose grace was sufficient for him: Verse. 9. To them must we still have our recourse; if we thus resist the Devil he shall flee from us: Jam. 4. 7. In the primitive times, those that could cōmand, needed not to sue: and therefore fasting and prayers was an higher (as a more laborious) work (to this purpose) in the disciples, then their imperative course of ejection; but for us, we that have no power to bid, must pray; Pray; not to those ill guests that they would depart; not to the blessed Virgin, or our Angel Keeper that they would gard us from them, but to the great God of heaven, [Page 174] who commands them to their chains: This is a sure and everlasting reme­dy, this is the onely certaine way to their foile, and our deliverance, and victory.

CASE II.

How farre a secret pact with evill spi­rits doth extend, and what actions and events must be referred there­unto.

IT is a question of exceeding great use, and necessity; for certainly many thousands of honest, and well-minded-Christians are in this kinde drawne into the snares of Satan, un­warily, and unwittingly: For the determining of it, these two grounds must be laid; First, that there is a double compact with Satan; One direct and open; wherein Magicians and witches, upon wofull conditions, [Page 175] and direfull ceremonies, enter into a mutuall covenant with evill spirits: The other, secret and indirect; where­in nothing is seen, or heard, or known to be agreed upon; onely by a close implication, that is suggested and yeelded to be done, which is invisibly seconded by diabolicall operation.

The second ground is; that what­soever hath not a cause in nature ac­cording to Gods ordinary way, must be wrought either by good, or evill spirits: That it cannot be supposed that good Angels should be at the command of ignorant, or vicious persons, of either sexe, to concurre with them in superstitious acts, done by meanes altogether in themselves ineffectuall and unwarrantable: and therefore that the Devill hath an un­seene hand in these effects, which he marvailously brings about, for the winning of credit with the world, and for the obliging and engaging of his [Page 176] owne clients: of this kinde there is too lamentably-much variety in com­mon experience: Take an handfull, if you please, out of a full sack: let the first be, that authentique charme of the Gospell of S. John allowed in the parts of the Romish correspon­dence; wherein the first verses of that divine Gospell are singled out, printed, in a small roundell, and sold to the credulous ignorants, with this fond warrant, that whosoever carries it about him shall be free from the dangers of the dayes mis-happes: The booke and the key; the sive and the sheeres, for the discovery of the theefe; The noching of a stick with the number of the warts which we would have removed; the rubbing of them with raw flesh, to be buried in a dunghill that they may rot away in­sensibly therewith, or washing the part in moone-shine for that purpose: words, and characters, of no signifi­cation, [Page 177] or ordinary forme, for the curing of diseases in man, or beast; more then too many whereof we find in Cornelius Agrippa, and Para­celsus.

Formes of words and figures for the stanching of blood; for the pul­ling out of thornes, for easing paine, for remedying the biting of a mad dog.

Amulets made up of reliques, with certaine letters and crosses, to make him that weares them, invulne­rable.

Whistling for a winde wherewith to winnow; as it is done in some ig­norant parts of the west.

The use of an holed flint, hanged up on the rack, or beds head, for the prevention of the night-mare in man, or beast.

The judging by the letters of the names of men or women, of their for­tunes, as they call them; accor­ding [Page 178] to the serious fopperies of Ar­candam.

The seventh sonnes laying on of hands for the healing of diseases; The putting of a verse, out of the Psalmes, into the vessell, to keep the wine from sowring; The repeating of a verse out of Virgil to preserve a man from drunkennesse all that day following; Images astronomically framed under certaine constellations to preserve from severall inconveniences; as un­der the signe of the Lion the figure of a Lion made in gold, against me­lancholick fancies, dropsie, plague, fevers: which Lessius might well marvell how Cajetan could offer to defend; when all the world knowes how little proportion and correspon­dence there is betwixt those imagi­nary signes in heaven, and these reall creatures on earth.

Judiciary Astrology, as it is com­monly practised, whether for the [Page 179] casting of nativities, or prediction of voluntary, or civill events, or the discovery of things stolen or lost: for, as the naturall Astrology when it keepes it selfe within its due bounds is lawfull, and commendable, (al­though not without much uncertain­ty of issue;) so that other Calcula­tory, or figure-casting Astrology is presumptuous and unwarrantable; cryed ever downe by Councells and Fathers, as unlawfull; as that which lies in the mid-way betwixt magick, and imposture, and partakes not a little of both.

The anointing of the weapon for the healing of the wound, though many miles distant; wherein (how confident soever some intelligent men have beene) doubtlesse there can be nothing of nature; sith in all naturall agencies, there must necessarily be a contaction either reall, or virtuall; here in such an intervall, none can [Page 180] be: neither can the efficacy be as­cribed to the salve; since some others have undertaken and done the cure, by a more homely and familiar oint­ment; It is the ill-bestowed faith of the agent that drawes on the successe from the hand of an invisible phy­sitian.

Calming of tempests, and driving away devills by ringing of belles, hallowed for that purpose.

Remedy of witcheries, by heating of Irons, or applying of crosses. I could cloy you with instances of this kinde; wherewith Satan beguiles the simple upon these two mis-grounded principles; 1. That in all experience they have found such effects follow­ing upon the use and practise of such meanes; which indeed cannot be de­nied: Charmes and spells common­ly are no lesse unfailing in their work­ing, then the best naturall remedies; doubtlesse, the Devill is a most skil­full [Page 181] Artist: and can doe feates beyond all mortall powers; but God blesse us from imploying him: 2 King. 1. 3. Is it not because there is not a God in Israel that we goe to enquire of Baalzebub the God of Ekron?

2. That there may be hidden cau­ses in nature for the producing of such effects which they know not; neither can give any reason of their operations; whereof yet we doe com­monly make use, without any scru­ple; and why may not these be ran­ged under the same head? which they have used with no other but good meaning; without the least intention of reference to any malignant pow­ers; In answer whereto, I must tell them, that their best plea is igno­rance; which may abate the sin, but not excuse it: There are indeed, deep secrets in nature, whose bottome we cannot dive into; as those wonders of the load-stone; a peece outwardly [Page 182] contemptible, yet of such force as approacheth neare to a miracle: and many other strange sympathies and antipathies in severall creatures; in which ranke may be set the bleeding of the dead at the presence of the murtherer: and some acts done for the discovery of witchcraft both in this, and our neighbor kingdom; But withall, though there be secrets in nature which we know not how she workes; yet we know there are works which are well knowne, that she can­not do: how far her power can ex­tend is not hard to determine: and those effects which are beyond this, (as in the fore-mentioned particu­lars) wee know whither to ascribe: Let it be therefore the care and wise­dome of Christians to looke upon what grounds they goe: whiles they have God, and nature for their war­rant, they may walke safely; but where these leave them, the way [Page 183] leads downe to the chambers of death.

CASE III.

Whether reserving my conscience to my selfe I may be present at an Idolatrous devotion; or whether in the lawfull service of God I may communicate with wicked persons.

THe question is double: both of them of great importance; The former I must answer negatively; your presence is unlawfull upon a double ground; of sin, and of scan­dall: of sin, if you partake in the Ido­latry; of scandall, if you doe but seeme to partake: The scandall is threefold; you confirme the offen­ders in their sin; you draw others by your example into sin; you grieve the spirits of those wiser Christians, that are the sad witnesses of your offence. [Page 184] The great Apostle of the Gentiles (1 Cor. 8. 4, 5, 6, 7, 8, 9, 10.) hath fully determined the question in a more favourable case: The heathen sacrifi­ces were wont to be accompanied (in imitation of the Jewish, prescribed by God himselfe) with feasts; the ow­ners of the feast civilly invite the neighbours (though Christians) to their banquets; The Tables are spread in their Temples; The Christian guests out of a neighbourly society, goe, sit, eate with them: S. Paul cries downe the practice, as utterly unlaw­full: yet this was but in matter of meat; which sure was Gods, though sacrificed to an Idoll; how much more must it hold in rites and devi­ces, meerly, either humane, or de­vilish?

I need not tell you of the Christian Souldiers in the Primitive Persecuti­on, who when they found themselves by an ignorant mistaking drawne, [Page 185] under a pretence of loyalty, into so much ceremony as might carry some semblance of an Idolatrous thurifica­tion, ran about the City in an holy remorse, and proclaimed themselves to be Christians: Nor how little it excused Marcellinus Bishop of Rome, from an heavy censure, that he could say he did but for company cast a few graines of incense into the fire. The charge of the Apostle (1 Thes. 5. 22.) is full, and peremptory, that we should abstaine from every appea­rance of evill.

It is a poore plea that you mention of the example of Naaman. Alas, an ignorant pagan: whose body if it were washed from his leprosie, yet his soule must needs be still foule: 2 Kings 5. 17, 18, 19. yet even this man will thenceforth offer neither burnt offering, nor sacrifice unto any other God, but unto the Lord; nor upon any ground but the Lords pe­culiar; [Page 186] and will therefore lade two Mules with Israelitish earth; and is now a professed convert: Yea, but he will still bow in the Temple of Rim­mom: But how will he bow? Civilly onely, not religiously; In the house of Rimmon, not to the Idol; Not in relation to that false deity, but to the King his master: you shall not take him going alone under that Idola­trous roofe, but according to his of­fice, in attendance of his Soveraign: nor bowing there, but to support the arme that lean'd upon him: And if upon his returne home from his jour­ney he made that solemne protesta­tion to his Syrians, which he before made to the Prophet: Take notice ô all ye Courtiers, and men of Da­mascus, that Naaman is now become a proselyte of Israel; that he will serve and adore none but the true God; and if you see him at any time kneeling in the temple of your Idol [Page 187] Rimmon, know that it is not done in any devotion to that false God, but in the performance of his duty and service to his royall master; I see not but the Prophet might well bid him, Goe in Peace. How ever that ordina­ry and formall valediction to a Syri­an, can be no warrant for a Christi­ans willing dissimulation.

It is fit for every honest man to seeme as he is; what do you howling amongst Wolves, if you be not one? Or what do you amongst the Cranes, if you be a Storke? It was the charge of Jehu, when he pretended that great sacrifice to Baal; Search, and looke that there be here with you none of the servants of the Lord, (2 King. 10. 23.) but the worshippers of Baal one­ly: surely had any of Gods clients secretly shrouded himselfe amongst those Idolaters, his blood had beene upon his owne head: Briefly then, if you have a minde to keep your selfe [Page 188] in a safe condition for your soule, let me lay upon you the charge which Moses enforced upon the congrega­tion of Israel in the case of Corahs in­surrection, Depart I pray you from the tents of these wicked men, and touch nothing of theirs, lest ye be consumed in all their sinnes. Num. 16. 26.

The latter I must answer affirma­tively: If the ordinances be holy, why should not you take your part of them?

It is an unjust nicenesse to abridge your selfe of a blessing, for another mans unworthiness: Doubtlesse, there ought to be a seperation of the preci­ous from the vile; the neglect where­of is the great sinne of those, whom in duty it concerns to performe it; but where this is not accordingly done, shall I suffer for anothers offence? my owne sinnes may justly keepe me off from Gods Table; if another mans may doe so too, I appropriate [Page 189] the guilt of his sin to my own wrong: surely it argues but small appetite to these heavenly viandes, if you can be put off with a pretence of others faults: Judge of the spirituall repast by this earthly; were you throughly hungry, would you refraine from your meat because one of the guests hath a paire of foule hands? that may be a just eye-sore to you, but no rea­son why you should forbeare whole­some dishes: Carve you for your felfe, and looke to your owne tren­cher; he feeds for himsefe, not for you; sin is the uncleannesse of the soule; that cleaves closer to it, then any outward nastinesse can to the skin; to feed thus foule then is doubt­lesse unwholsome, to himselfe, it can be no hurt to you. But you are ready to straine the comparison higher to your owne advantage: say, that one of the guests hath a plague-sore run­ning upon him, shall I then thinke it [Page 190] safe to sit at the Table with him? now sin is of a pestilent nature, spread­ing its infection to others besides its owne subject; therefore it is meet we keep aloofe from the danger of his contagion: True, there are sinnes of a contagious nature, apt to diffuse their venome to others, (as there are othersome whose evill is intrinse call to the owner) but these infect by way of evill counsails, or examples, or familiar conversation, not by way of a meere extemporary presence of the person, by spreading of their cor­ruption to those that are taken with them; not by scattering abroad any guilt to those that abhorre them. Well did our Saviour know how deadly an infection had seised on the soule of Judas, yet he drives him not from his board, lest his sinne should taint the disciples.

The spirit that writes to the seven Asian Churches (Rev. 2. 20, 21, 22.) [Page 191] saw and professed to see the horrible infection spread amongst the Thya­tirians by the doctrine and wicked practises of their Jesebel, yet all that he enjoynes the godly party is to hold their owne.

Have no fellowship, saith the Apo­stle, with the unfruitfull workes of darknesse: (Ephes. 5. 11.) Loe he would not have us partake in evill: he doth not forbid us to partake with an evill man in good workes.

However therefore we are to wish and indeavour (in our places) that all the congregation may be holy; and it is a comfortable thing to joine with those, that are truly conscionable, and carefully observant of their wayes, in the immediate services of our God: yet where there is neglect in the over­seers, and boldnesse in the intruders, and thereupon, Gods sacred Table is pestred with some unworthy guests; it is not for you, upon this ground, [Page 192] to deprive your selfe of the benefit of Gods blessed Ordinances; not­withstanding all this unpleasing en­combrance you are welcome, and may be happy.

CASE IV.

Whether Vowes be not out of season now under the Gospell; of what things they may be made; how farre they oblige us; and whether and how far they may be capable of release.

IT is a wrongfull imputation that is cast upon us by the Roman Do­ctors, that we abandone all vowes under the Gospell: They well see that we allow and professe that com­mon vow (as Lessius termes it) in Baptisme; which yet both Bellar­mine, and he, with other of their con­sorts, deny to be properly such: It is true, that as infants make it by their [Page 193] proxies, there may seeme some im­propriety of the ingagement as to their persons; but if the party Chri­stened be of mature age, the expresse vow is made absolutely by, and for himselfe. Besides this we allow of the renovation of all those holy vowes, (relating to the first) which may binde us to a more strict obedi­ence to our God; yet more, though we doe not now allow the vowes of things in their nature indifferent, to be parts of Gods worship, (as they were formerly under the law) yet we doe willingly approve of them, as good helps and furtherances to us, for the avoiding of such sinnes as we are obnoxious unto; and for the better forwarding of our holy obe­dience.

Thus, the charge is of eternall use, Psal. 76. 11. Vow unto God and per­forme it: Not that we are bound to vow; that act is free and voluntary: [Page 194] but that when we have vowed, we are straightly bound to performance: It is with us for our vowes as it was with Ananias and Saphira for their substance, Whiles it remained (saith S. Peter) was it not thine own? (Act. 5. 4.) He needed not to sell it, he needed not to give it; but if he will give, he may not reserve: If he pro­fesse to give all, it is death to save some; he lyes to the holy Ghost, that defalkes from that which he en­gaged himselfe to bestow.

It mainly concernes us therefore to looke carefully in the first place, to what we vow; and to our intentions in vowing; and to see that our vow be not rash and unadvised; of things either triviall, or unlawfull, or impos­sible, or out of our power to per­forme; for every vow is a promise made to God; and to promise unto that great and holy God, that which either we cannot, or ought not to doe, [Page 195] what is it other then to mock and a­buse that Sacred Majesty; which will not hold him guiltlesse that taketh his name in vaine? It is the charge to this purpose of wise Solo­mon; Be not rash with thy mouth; and let not thine heart be hasty to utter any thing before God; for God is in hea­ven, and thou upon earth, therefore let thy words be few. Eccles. 5. 2.

Your vow therefore must be either of things morally good; for the quickening you in that duty which you are bound to doe: or of things indifferent in themselves, the refrain­ing, or doing whereof may tend ei­ther to the restraint from sin, or the furtherance of your holy obedience: As a man that finds his brains weake, and his inclination too strong to plea­sing liquor, bindes himselfe by a vow to drinke no wine save onely at Gods table: or a man that findes himselfe apt to be mis-carried by his appetite, [Page 196] confines himselfe by his vow to one dish; or to one meale for the day: or a man that finds himselfe given to the pleasure of gaming, to the losse of his time, and the weakning of his estate, curbes himselfe by his vow never to play for money: or a man that findes his prayers weake, and his flesh rebellious, vowes to tame his unruly desires, and to stir up his dul­ler devotions, by fasting.

And as the matter of your vow must be carefully regarded; so also your intentions in vowing; for if you vow to doe good to an ill end, your thanke is lost, and danger of judge­ment incurred: as if you vow to give almes for vaine glory, or osten­tation: or, if God shall prosper your usurious, or monopolizing project, you will build an hospitall; your vow is like to be so accepted, as the story tells us, the prayers were, of that bold Curtizan, who comming to the shrine [Page 197] of S. Thomas of * Canterbury (as that traitour was stiled) devoutly begd, that through the intercession of that Saint, she might be graced with so winning a beauty, that might allure her paramours, to a gainfull courting of so pleasing a mistresse; when sud­dainly (as my author tells me) she was stricken blinde: and certainly, so it might well be; for if a supposed Saint were invoked, it was God that was highly provoked by the sinfull peti­tion of a shamelesse harlot: and it was most just for him to revenge it; and so we may well expect it shall be with whosoever shall dare to make use of his sacred name to their owne wicked or unwarrantable purposes.

Since therefore our vowes must be for their matter (as Casuists well de­termine) De meliore bono, and for in­tentions, holy and directed onely to good; it plainly appeares that many [Page 198] idle purposes, promises, resolutions are wont to passe with men for vows, which have no just claime to that holy title: One saies he vowes never to be friends with such a one that hath highly abused him; another, that he will never come under the roofe of such an unkinde neighbour: one that he will drinke so many healths to his honoured friend; ano­ther that he will not give the wall or the way to any passenger: one that he will never weare suit but of such a colour; another that he will never cut his haire till such an event; These, and such like may be foolish, unjust, ridiculous selfe-ingagements; but vowes they are not; neither there­fore doe binde the conscience other­wise then as Sampsons cords, and withes, which he may breake as a thred of towe. Judg. 16. 9. 12.

But as for true vowes; certainly they are so binding, that you shall sin [Page 199] hainously in not performing them: It is no better then dishonesty to faile in what we have promised to men; but to disappoint God in our vowes, is no lesse then sacriledge: That of Solomons is weighty; Eccles. 5. 4, 5, 6. When thou vowest a vow unto God, de­ferre not to pay it, for he hath no plea­sure in fooles; pay that which thou hast vowed: Better it is that thou shouldst not vow; then that thou shouldst vow and not pay it: Suffer not thy mouth to cause thy flesh to sin; neither say be­fore the Angel that it was an errour; wherefore should God be angry at thy vows and destroy the work of thine hands? If therefore a lawfull and just vow have passed your lips, you may not be false to God, and your selfe in not keeping it.

But if it shall so fall out, that there proves to be some maine inconveni­ence or impossibility in the fulfilling of this your solemne promise unto [Page 198] [...] [Page 199] [...] [Page 200] God, whether through the extreme prejudice of your health, and life, or the overswaying difficulty of the times what is to be done; surely as under the law (Num. 30. 3, 4, 5.) it was left in the power of the parent to over-rule the vow of the childe, so I doubt not but under the Gospell, it is left in the power of your spirituall fathers, to order, or dispense with the performance of those vowes, which you would, but cannot well fulfill: neither was it spoken in vaine, nor in matter of sins onely, which our Saviour in way of authorization, said to his Apostles and their successours, Whatsoever yee shall bind on earth, shall be bound in heaven, and whatsoever yee shall loose on earth shall be loosed in hea­ven. Mat. 18. 18. In this case therefore, I should advise you to make your ad­dresse to your spirituall pastor, and freely to lay open your condition be­fore him, and humbly to submit [Page 201] your selfe to his fatherly directions in that course which shall be found best and safest for your soule: Thinke it not safe in a businesse of so high nature to relye upon your owne judgment, and to carve out your own satisfaction; but regard carefully what God hath said of old, The priests lippes should keep knowledge: and they should seeke the law at his mouth: for he is the messenger of the Lord of hosts. Mala. 2. 7.

CASE V.

Whom may we justly hold an Heretick; and what is to be done in the case of Heresie?

THere is no one point wherein the Church of God hath suffered more then in the mis-understanding of this question; How many thou­sand innocents have in these latter [Page 202] ages of the Church perished in this unhappy quarrell? yea how many famous Churches have beene most unjustly thunderstruck with direfull censures of Excommunication, down to the pit of hell, upon pretence of this crime, which have beene lesse guilty then their Anathematizers? And even amongst our selves, how apt we are to brand one another with this hatefull marke where there is no true merit of such a reproach?

It much imports us therefore to know who may be deservedly thus stigmatized by us: I have elsewhere somewhat largely insisted on this theme; whither I might spare some lines to referre you; But, in short, thus: To let passe the originall sense, and divers acceptions of the word; An heresie is no other then an obsti­nate errour against the foundation; All truthes are precious, but some withall necessary; All errours are [Page 203] faulty, but some damnable; the hay­nousnesse of the error is according to the worth of the truth impugned; There are Theologicall verities fit for us to know and beleeve; there are Articles of Christian faith need­full to be known and beleeved; There are truths of meet and decent super­structure, without which the fabrick may stand; there are truths of the foundation so essentiall, as that with­out them it cannot stand: It is a maime to the house if but a tile be pull'd off from the roofe, but if the foundation be razed, the building is overthrown: this is the endevour and act of heresie.

But now the next question will be, what doctrines they are which must be accounted to be of the Founda­tion; Our countreyman Fisher the Jesuite, and his Associates will tell you roundly, that all those things which are defined by the Church to be belee­ved, [Page 204] are * fundamentall: A large groundworke of faith: Doubtlesse the Church hath defined all things contained in the scripture, to be be­leeved; and theirs (which they call Catholick) hath defined all those Traditionall points which they have added to the Creed, upon the same necessity of salvation to be beleeved; now if all these be the foundation, which is the building? what an im­perfect fabrick doe they make of Christian Religion; all foundation, no walls, no roofe? Surely it can­not, without too much absurdity, be denied, that there is great difference of Truthes, some more important then others; which could not be, if all were alike fundamentall: If there were not some speciall Truthes, the beleefe whereof makes, and distin­guisheth a Christian, the authors of the Creed Apostolick (besides the [Page 205] other Symboles received anciently by the Church) were much deceived in their aime: He therefore that be­leeves the holy Scriptures (which must be a principle presupposed) to be inspired by God; and as an ab­stract of the chiefe particulars there­of, professeth to beleeve and embrace the Articles of the Christian faith, to regulate his life by the law of Gods commandements, and his devotion by the rule of Christ prescribed; and lastly to acknowledge and receive the Sacraments expresly instituted by Christ; doubtlesse this man is by pro­fession a Christian, and cannot be de­nyed to hold the foundation; and whosoever shall wilfully impugne a­ny of these, comes within the verge of Heresie: wilfully, I say; for meere error makes not an heretick; if out of simplicity, or grosse ignorance, a man shall take upon him to maintaine a contradiction to a point of faith, be­ing [Page 206] ready to relent upon better light, he may not be thus branded: evicti­on and contumacy must improve his error to be hereticall. The Church of Rome therefore hath beene too cru­elly-liberall of her censures this way; having bestow'd this livery upon ma­ny thousand Christians whom God hath owned for his Saints: and upon some Churches more Orthodoxe then her selfe; presuming upon a power (which was never granted her from heaven,) to state new articles of faith; and to excommunicate and barre all that shall dare to gainsay her oracles: Whereas the great Doctor of the Gentiles hath told us from the spirit of God, that there is but one Lord, one faith, one baptisme; (Ephes. 4. 5.) and what faith is that? S. Jude tells us: Jude 3. The faith that was once delivered the Salnts; so that as well may they make more reiterati­ons of Baptisme, and multipliclties [Page 207] of Lords, as more faiths then one: some explications there may be of that one faith, made by the Church, upon occasion of new-sprung errors, but such, as must have their grounds from fore-written truths; and such, as may not extend to the condemna­tion of them whom God hath left free: new articles of faith they may not be: nor bind further then God hath reach't them.

Hereticks then they are and onely they, that pertinaciously raze the foundation of the Christian faith; what now must be done with them? surely, first, if they cannot be reclai­med, they must be avoided: It is the charge of the beloved disciple to the elect Lady, 2 John v. 10. If any man come unto you and bring not (that is, by an ordinary Hebraisme, opposes) this doctrine, receive him not into your houses, neither bid him God-speed; But the Apostle of the Gentiles goes [Page 208] yet higher; for writing to Titus the great Super-intendent of Crete, his charge is, Tit. 3. 10. A man that is an heretick, after the first and second ad­monition reject.

Now, when we compare the charge with the person, we cannot but finde that this rejection, is not a meer negative act, of refraining com­pany; but a positive act of censure, so as he who had power to admonish, had also power to reject in an autho­ritative, or judicatory way: He sayes then, Devita, reject or avoid, not (as Erasmus too truly, but bitterly scoffes the Romish practise) De vita tolle: This of killing the heretick, as it was out of the power of a spirituall supervisor, so was it no lesse farre from the thoughts of him that desi­red to come in the spirit of meekness: Fagots were never ordained by the Apostle for arguments to confute hereticks; this bloudy Logick and [Page 209] Divinity was of a much later brood; and is for a Dominick, not a Paul to owne: for certainly faith is of the same nature with love, it cannot be compelled; perswasions may move it, not force: These intellectuall sinnes must look for remedies of their own kind; But if either they be (as it is often) accompanied with dam­nable blasphemies, against God, whether in his essence, or attributes, or the three incomprehensible per­sons in the all-glorious Deity, or the blessed mediator betwixt God and man Jesus Christ, in either of his na­tures; Or else, shall be attended with the publique disturbances and dan­gerous distempers of the Kingdome, or State wherein they are broached, the Apostles wish is but seasonable, in both a spirituall and a bodily sense; Gal. 5. 12. Would to God those were cut off that trouble you: In the mean time, for what concernes your self, if you [Page 210] know any such, as you love God, and your soules, keepe aloof from them, as from the pestilence. * Epi­phanius well compares heresie to the biting of a mad dog, which as it is deadly, (if not speedily remedied) so is it withall dangerously infectious; not the tooth onely, but the very foame of that envenomed beast car­ries death in it; you cannot be safe, if you avoid it not.

CASE VI.

Whether the laws of men doe bind the conscience; and how far we are tyed to their obedience.

BOth these extreames of opinion concerning this point must needs bring much mischief upon Church and Kingdome: Those that abso­lutely hold such a power in humane laws make themselves slaves to men: [Page 211] Those that deny any binding power in them, run loose into all licentious­nesse: Know then that there is a vast difference betwixt these two; To bind the conscience in any act; and to bind a man in conscience to do or omit an act: Humane laws cannot do the first of them; the latter they may, and must doe: To bind the conscience is to make it guilty of a sin in doing an act fobidden, or omitting an act injoy­ned as in it selfe such: or making that act in it selfe an acceptable ser­vice to God which is commanded by men: Thus humane lawes cannot bind the conscience: It is God only, 1 John 3. 21. who, as he is greater then the Conscience, so hath power to bind or loose it: Esay 31. 22. It is he that is the onely Law-giver to the Conscience: Jam. 4. 12. Princes and Churches may make lawes for the outward man; but they can no more bind the heart, then they can [Page 212] make it; In vaine is that power which is not inabled with coertion; now what coertion can any humane power claime of the heart, which it can never attain to know? the spirit of man therefore is subject onely to the father of spirits, who onely sees and searches the secrets of it, and can both convince, and punish it.

Besides, well did penitent David know what he said, when he cry'd out: Against thee onely have I sinned: Psal. 51. he knew that sin is a trans­gression of the law; and that none but Gods law can make a fin: men may be concerned, and injured in our actions, but it is God who hath forbidden these wrongs to men, that is sinned against, in our acts of injustice and uncharitablenesse: and who only can inflict the spirituall (which is the highest) revenge upon offenders. The charge of the great Doctor of the Gentiles to his Galatians, was, [Page 213] Gal. 5. 1. Stand fast in the liberty wherewith Christ hath made us free; and be not intangled againe in the yoak of bondage. What yoak of bondage was this but the law of Ce­remonies? what liberty was this but a freedome from the bondage of that law? And certainly if those ordi­nances, which had God for their au­thor, have so little power to bind the conscience, as that the yoak of their bondage must be shaken off, as in­consistent with Christian liberty; how much lesse is it to be indured, that we should be the servants of men, in being tyed up to sin by their presumptuous impositions?

The lawes of men therefore doe not, ought not, cannot bind your con­science, as of themselves; but, if they be just, they bind you in conscience to obedience: They are the words of the Apostle to his Romans; Rom. 13. 5. Wherefore ye must needs be sub­ject; [Page 214] not onely for wrath, but also for conscience sake. However then their particular constitution in themselves put no speciall obligation upon us, under paine of sin, and damnation; yet in a generall relation to that God, who hath commanded us to obey authority, their neglect or contempt involves us in a guilt of sin: All power is of God; that which the su­preme authority therefore enjoynes you, God enjoynes you by it; the charge is mediately his; though passing through the hands of men.

How little is this regarded, in these loose times, by those lawlesse persons, whose practises acknowledge no so­verainty but titular, no obedience but arbitrary; to whom the strongest lawes, are as weapons to the Levia­than, who esteemes Iron as straw, and brasse as rotten wood? Job 41. 27.

Surely had they not first cast off their obedience to him that is high­er [Page 215] then the highest, they could not without trembling heare that weigh­ty charge of the great God of heaven, Rom. 13. 1. Let every soule be subject to the higher powers: For there is no power but of God; and the powers that be, are ordained of God: 1 Pet. 2. 13. Submit your selves to every ordinance of man for the Lords sake; and there­fore should be convinced in them­selves, of that awe, and duty, which they owe to Soveraignty, and know and resolve to obey God in men; and men for God.

You see then how requisite it is, that you walke in a middle way be­twixt that excessive power which flattering Casuists have beene wont to give to Popes, Emperours, Kings, and Princes in their severall juris­dictions; and a lawlesse neglect of lawfull authority: For the orthodox, wise, and just moderation whereof, these last ages are much indebted to [Page 216] the learned and judicious Chancel­lour of Paris *, John Gerson; who first so checked that over-flowing errour of the power of humane usur­pation (which carried the world be­fore it) as gave a just hint to succeed­ing times, to draw that stream into the right channell; in so much as Dominicus à Soto complaines great­ly of him, as, in this, little differing from the Lutheran heresie: But in the way which they call heresie, we worship the God of our fathers; ren­dring unto Cesar the things that are Cesars, and unto God those things that are Gods; yeelding our bodies to Cesar, Act. 24. 14. reserving our souls for God: tendring to just lawes, our active obedience, to unjust, pas­sive.

But in the mean time, farre be it [Page 217] from us to draw this knot of our obligation harder, and closer then au­thority it selfe intends it: What ever Popes may doe for their Decrees, certainly good Princes never meant to lay such weight upon all their lawes as to make every breach of them (even in relation to the authori­ty given them by God) to be sin­full.

Their lawes are commonly shut up with a sanction of the penalty im­posed upon the violation: There is an obedientia bursalis, (as, I remem­ber, Gerson, calls it,) an obedience, if not of the person, yet of the purse; which Princes are content to take up withall: we have a world of sinnes (God knowes) upon us in our hourely transgressions of the royall lawes of our maker; but woe were us, if we should have so many sinnes more, as we breake statutes: In penall lawes, where scandall or contempt finde no [Page 218] place, humane authority is wont to rest satisfied with the mulct paid, when the duty is not performed.

Not that we may wilfully incurre the breach of a good law, because our hands are upon our purse-strings ready to stake the forfeiture; This were utterly to frustrate the end of good lawes, which doe therefore im­pose a mulct that they may not be broken; and were highly injurious to soveraigne authority, as if it sought for our money, not our obedience, and cared more for gaine, then good order; then which there cannot be a more base imputation cast upon go­vernment: As then we are wont to say in relation of our actions to the lawes of God; that some things are forbidden because they are sinfull, and some things are sinfull because they are forbidden, so it holds also in the lawes of men; some things are forbidden because they are justly [Page 219] offensive; and some other things are onely therefore offensive because they are forbidden; in the former of these, we must yeeld our carefull o­bedience, out of respect even to the duty it selfe; in the latter, out of re­spect to the will of the law-giver; yet so, as that if our own important occa­sions shall enforce us to transgresse a penall law, without any affront of authority or scandall to others, our submission to the penalty frees us from a sinfull disobedience.

CASE VII.

Whether Tithes be a lawfull mainte­nance for Ministers under the Gospel; and whether men be bound to pay them accordingly.

AS the question of Mine and Thine hath ever embroyled the world; so this particular concerning Tithes [Page 220] hath raised no little dust in the Church of God: whiles some plead them in the precise (quota parta) due and necessary to be paid, both by the law of God, and nature it self; others decry them as a Judaicall law, partly Ceremoniall, partly Judiciall; and therefore either now unlawfull, or at least neither obligatory, nor conveni­ent.

What is fit to be determined in a businesse so overagitated; I shall shut up in these ten propositions.

1. The maintenance of the legall ministery allowed and appointed by God was exceeding large and li­berall.

Besides all the tithes of corne, wine, oyle, herbes, herds, flocks; they had forty eight cities set forth for them, with the fields round about them, to the extent of two thousand cubits every way: They had the first fruits of wine, oyle, wool, &c. in a large [Page 221] proportion; he was held to be a man of an evill eye that gave lesse then the sixtieth part: They had the first born of cattle, sheep, Beeves, goates; and the price of the rest, upon redempti­on: even the first-born of men must ransome themselves at five shekels a man; They had the oblations and vowes of things dedicated to God: They had the ample loaves (or * cakes rather) of shew-bread; and no small share in meat offerings, sin­offerings, trespasse offerings, heave­offerings, shake-offerings; of sacri­fices eucharisticall they had the brest and shoulder; of other, the shoulder, and the two cheeks; yea the very burnt-offerings afforded them an hide: Besides all these; all the males were to appear before the Lord thrice a year; none were exempted (as their Doctors tell us) but servants, deaf, [Page 222] dumb, idiots, blind, lame, defiled, uncircumcised, old, sick, tender, and weak, not able to travell, and no one of these which came up might appear empty-handed.

What doe I offer to particularize? there were no lesse then twenty-four gifts alotted to the Priests, expresly in the law; the severalls whereof who so desires to see, may finde in the learned and profitable Annotations of Master Ainsworth * out of Mai­monides.

2. We can have no reason to ima­gine, that the same God who was so bountifull in his provisions for the legall ministery, should bear lesse re­spect to the Evangelicall; which is farre more worthy and excellent then the other: Justly therefore doth Saint Paul argue from the maintenance of the one, a meet proportion for the fit sustentation of the other, I Cor. 9. 13.

[Page 223] 3. It is not fit for Gods ministers to be too intent to matter of profit; their main care must be the spirituall proficiency of the soules of their people; the secular thoughts of out­ward provisions must come in onely on the by; but howsoever they may not be intangled in worldly affaires, yet they ought in duty to cast so much eye upon these earthly things as may free them from neglect; It is to Timothy that S. Paul writes, that if any man provide not for his own, and especially for those of his own house, he hath denied the faith, and is worse then an Infidell. 1 Tim. 5. 8.

4. Under the law the tenth part was precisely allotted by the owner of all things, for the maintenance of the sacred Tribe; And if the wise and Holy God had not found that a meet proportion for those that served at his Altar; he had either pitched up­on some other, or left it arbitrary: yea [Page 224] even before the law, Gen. 14. 20. A­braham (and in his loynes Levi him­self) paid tithes to Melchisedec (Heb. 7. 4.) the priest of the most high God; and whether it were by his ex­ample, or by some naturall instinct, we finde the very heathen nations, after some great victory atchieved, were wont to devote still the tithe of their spoiles to their Deities: so Ca­millus, when he had after a long siege taken the rich City Vejos, (a place of such importance, that upon the ta­king of it, he wished some great crosse might befall Rome for the tempering of so high a felicity) he presently of­fereth the tithe to his * Gods: yea it was their custome who were most devout, to consecrate the tithe of all their increase to those Gods they were most addicted unto; in so much as the Romans noted it in their Lu­cullus, [Page 225] that he therefore grew up to so vast an estate, because he still de­voted the tithe of his fruits to Hercu­les: And * pliny tells us that when they gathered their Frankincense, none of it might be uttered till the Priest had the tithe of it set forth for him.

5. There can be no good reason given, why we may not observe the very same rate of proportion in lay­ing out the maintenance of the mini­stery under the Gospell; and if these rules and examples be not binding, (since Religion consisteth not now in numbers at all) yet there is no cause why Christian Kingdomes, or Com­mon-wealths may not settle their choice upon the same number, and quantity with both Jewes, and Gen­tiles.

6. The nationall lawes of this Kingdome have set out the same pro-Kingdome [Page 226] have set out the same pro­portion of Tenthes for this purpose; If therefore there were no other obli­gation from the law of God or of the Church, nor any precedents from the practise of the rest of the world, yet in obedience to our municipall lawes, we are bound to lay forth the tenth part of our increase to the main­tenance of Gods service; and that tenth is as truly due to the minister, as the nine parts to the owner.

7. Since the tenth part is in the in­tention of the law both civill and ec­clesiasticall, dedicated to the service of God; and in the meer intuition thereof, is allotted to Gods ministers, there can be no reason why it can be claimed, or warrantably received by Lay persons, for their proper use and behoof; so as this practise of Impro­priation, which was first set on foot by unjust and sacrilegious Bulls from Rome, is justly offensive both to God, [Page 227] and good men; as mis-deriving the well-meant devotions of charitable, and pious soules into a wrong chan­nell. Nothing is more plaine then that Tithes were given to the Church; and in it, to God: how therefore that which is bequeathed to God may be alienated to secular hands, let the pos­sessors look.

8. Let men be tied to make good the Apostles charge (since the legall rate displeases) and it shall well sa­tisfie those that wait upon Gods ser­vices under the Gospel; The charge of the Apostle of the Gentiles, is: Let him that is taught in the word com­municate to him that teacheth, in all good things, Gal. 6. 6. whereto he addes, ver. 7 Be not deceived, God is not mocked: The charge is serious, and binding: and the required com­munication is universall; and that with a grave Item of Gods strict ob­servation of performance: we may [Page 228] not thinke to put it off, with Ambroses, mis-pointed reading, of referring the all goods things to the teaching (a con­ceit sensibly weak, and mis-constru­ctive:) nothing is more evident then that it hath relation to the communi­cating; wherein (for ought I see) God intends a larger bounty to the Evan­gelicall ministery then to the legall; where all is to be cōmunicated, what is excepted? All, not exclusive of the owner; but imparted by the owner; Let this be really done, there will be no reason to stand upon the Tenths.

9. But that this may be according­ly done, there is no law that requires a meere arbitrarinesse in the commu­nicators: the duty of the teacher is punctually set downe, and so well knowne that the meanest of the peo­ple can check him with his neglect: and why should we thinke the reci­procall duty of the hearer fit to be left loose, and voluntary: yet such [Page 229] an apprehension hath taken up the hearts of too many Christians as if the conttibutions to their ministers were a matter of meere Almes; which as they need not to give, so they are apt, upon easie displeasures; to up­braid: But these men must be put in minde of the just word of our Savi­our; The labourer is worthy of his wa­ges: The ministery signifies a ser­vice; a publique service at Gods al­tar; whereto the wages is no lesse due, then the meat is to the mouth of him that payes it; No man may more freely speake of tithes then my selfe, who receive none, nor ever shall doe: Know then ye proud ignorants, that call your Ministers your Almes­men, and your selves their Benefa­ctors, that the same right you have to the whole they have to a part: God and the same Lawes that have feoffed you in your estates, have al­lotted them their due shares in them; [Page 230] which without wrong ye cannot de­tract: It is not your charity but your justice which they presse for their owne: Neither thinke to check them with the scornfull title of your ser­vants; servants they are indeed, to Gods Church, not to you: and if they doe stoope to particular services for the good of your soules, this is no more disparagement to them, then it is to the blessed Angels of God, to be ministring spirits, Heb. 1. 14. sent forth to minister for them who shall be heires of salvation.

Shortly, it is the Apostles charge ratified in heaven, that they which labour in the word and doctrine should be remunerated with a double honour; that is not formall of words and complements, but reall of main­tenance; which he laies weight upon his Timothy to enjoyne, 1 Tim. 5. 17.

10. And surely how necessary it is that we should be at some certainty [Page 231] in this case, and not left to the meere arbitrary will of the givers, it too well appeares in common experience; which tells us how ordinary it is, where ministers depend upon volun­tary benevolences, if they doe but upon some just reproofe gall the con­science of a guilty hearer; or preach some truth which dis-relishes the pa­late of a prepossessed auditor, how he straight flies out; and not onely with-holds his owne pay, but also with­drawes the contributions of others: so as the free-tongued teacher must either live by ayre, or be forced to change his pasture: It were easie to instance, but charity bids me for­beare.

Hereupon it is, that these sportu­lary preachers are faine to sooth up their many maisters, and are so gag­ged with the fear of a starving dis­pleasure, that they dare not be free in the reprehension of the daring sins of [Page 232] their uncertaine benefactors; as be­ing charmed to speake either placien­tia or nothing. And if there were no such danger in a faithfull and just freedome, yet how easie is it to appre­hend, that if even when the lawes en­force men to pay their dues to their ministers, they yet continue so back­ward in their discharge of them: how much lesse hope can there be that be­ing left to their free choice, they would prove either liberall or just in their voluntary contributions?

Howsoever therefore in that inno­cent infancy of the Church, wherein zealous Christians out of a liberall ingenuity were ready to lay downe all their substance at the Apostles feet, and in the primitive times imme­diately subsequent, the willing for­wardnesse of devout people tooke a­way all need of raising set mainte­nances for Gods ministers; yet now, in these depraved and hard-hearted [Page 233] times of the Church, it is more then requisite, that fixed competencies of allowance should by good lawes be established upon them; which being done by way of Tithes in those coun­tries wherein they obtaine, there is just cause of thankfulnesse to God for so meet a provision, none for a just oppugnation.

CASE VIII.

Whether it be lawfull for Christians where they find a country possessed by savage Pagans and Infidels, to drive out the native inhabitants; and to seize, and enjoy their lands upon any pretence; and upon what grounds it may be lawfull so to doe.

WHat unjust and cruell measure hath been heretofore offered by the Spaniard to miserable Indi­ans, in this kind, I had rather you [Page 234] should receive from the relation of their own Bishop, Bartolomaus Casa, then from my Pen.

He can tell you a sad story of mil­lions of those poor savages made a­way, to make roome for those their imperious successours; the discovery of whose unjust usurpation, procured but little thanks to their learned pro­fessors of Complutum and Salamanca: Your question relates to our owne case; since many thousands of our nation have transplanted themselves into those regions, which were pre­possessed by barbarous owners: As for those countries which were not inhabited by any reasonable crea­tures, (as the Bermudas, or Summer-Islands; which were onely peopled with hogges, and deer, and such like brute cattle) there can be no reason why they should not fall to the first occupant; but where the land hath a known maister the case must vary: [Page 235] For the decision whereof some grounds are fit to be laid.

No nation under heaven but hath some Religion or other, and worships a God such as it is, although a crea­ture much inferiour in very nature to themselves; although the worst of creatures, evill spirits: and that religi­on wherein they were bred, (through an invincible ignorance of better) they esteeme good at least.

Dominion and propriety is not founded in Religion, but in a natu­rall, and civill right; It is true that the Saints have in Christ, the Lord of all things, a spirituall right in all crea­tures; All things are yours, (saith the Apostle) and you are Christs, and Christ is Gods: but the spirituall right gives a man no title at all to any na­turall or civill possession here on earth; yea Christ himself, though both as God, and as Mediator, the whole world were his, yet he tells [Page 236] Pilate, My Kingdom is not of this world; neither did he (though the Lord Para­mount of this whole earth) by vertue of that transcendent soveraignty put any man out of the possession of one foot of ground which fell to him, either by birth, or purchase: Neither doth the want of that spirituall inte­rest bebarre any man from a rightfull claime and fruition of these earthly inheritances.

The barbarous people were Lords of their owne; and have their Saga­mores; and orders, and formes of government under which they peace­ably live without the intermedling with other nations.

Infidelity cannot forfeit their in­heritance to others; no more then enmity professed by Jewes to Chri­stian Religion, can escheat their goods to the Crownes under which they live; yea much lesse: for those Jewes, living amongst Christian [Page 237] people, have, or might have had meanes sufficient to reclaime them from their stubborne unbeliefe, but these savages have never had the least overture of any saving helps towards their conversion: They therefore be­ing as true owners of their native in­heritances, as Christians are of theirs, they can no more be forced from their possessions by Christians, then Christians may be so forced by them: Certainly, in the same tearms wherein they stand to Christians, do also in their judgement, Christians stand to them; and if it would seeme hard to us, that an inundation of Pagans should (as heretofore it hath done) break in upon us, and drive us out of our native possessions, how could it seeme lesse unjust in us to them?

Their Idolatries, and sins against nature are haynous and abominable; and such as for which God of old [Page 238] condemned the seven nations to an utter extirpation; But what com­mission have we for their punish­ment? Could we show such a patent in this case as the Israelites had for their warres against Amalek, and those neighbouring heathens, all were sure: But you know who said, What have I to doe to judge them that are without? 1 Cor. 5. 12. And if he may not be a Judge, who may be an executioner?

Refusall of Christianity can be no sufficient ground of either invasion, or expulsion: sith violence is not the appointed way for plantation of the faith: which must be perswaded, and not compelled; that sentence there­fore of Pope * Gregory; Justum [Page 239] sanctumque esse bellum &c. (That it is a just and holy warre which is by Christians made against Infidels, that they being brought under subjection, the Gospell of Christ might be preached unto them; lest that if they should not be subjected, they might be an hindrance to preaching, and to the conversion of those that would beleeve;) is surely either not out of the chayre, or beside the cushion; and better beseems a successor of Romu­lus, then of Peter: I may not omit to acquaint you how hotly this maine question was disputed by Spanish and Italian Divines upon the very first entrance of this litigious usurpation: At which time Pope Alexander 6. (Anno. 1493.) gave his large Decre­tory Bull to Ferdinand King and Isa­bella Queen of Castile and Aragon for his expedition against the barbarous Indians of the then newly discovered world: Genesius Sepulveda a learned [Page 240] Spaniard writ then, in defence and incouragement of this holy invasion, a Dialogue, which he called Demo­crates secundus, which was published at Rome, by the procurement of An­tonius Augustinus, Auditor of the Palace; which no sooner came a­broad, then it was eagerly set upon, by the Divines both of Italy and Spaine; amongst these latter, the Do­ctors of Salamanca, adde the Completenses; and above them Antonius Ramirus Bishop of Segovia fall foul upon that of­fensive discourse, which Genesius would faine have vindicated by an Apology, set forth to that purpose; but how insufficiently, it were easie to show, if it were as needfull: But to make the matter good, he thinkes to back himselfe by the authority of great, and fa­mous persons, both Counsellors, and Doctors, by him cited; and above all [Page 241] by that loud Bull of * Franciscus à Victoria, the famous Professor of Divinity at Salamanca, concerning this so weigh­ty affaire; which he hath published with such wisdome and moderation, as so great a businesse required; sta­ting the question aright on both sides; both shewing the insufficiency of the received grounds of that Indi­an expedition, and directing to those [Page 242] just motives, and rules of proceedings herein, as might be, in such a case, justifiable: to which grave and solid discourse of his, you may, if you please, be referred for further satis­faction.

Onwards, I shall draw forth some few of such considerations from him as may serve for my present pur­pose.

First therefore it is lawfull for Christians to travell into any coun­try under heaven; and as strangers to stay there, without any wrong done to the natives; A thing allow­ed by the law of nations derived from the law nature; By which law it is every where held an inhumane thing to offer ill measure to a stranger. It is the argument that righteous Lot used to the worst of Pagans, the Sodomites; Onely unto these men doe nothing; for therefore are they come under the sha­dow of my roof, Gen. 19. 8.

[Page 243] And if before the division of nati­ons, the earth lay freely open to all passengers without scruple, to travell whither they pleased, surely, that par­tition was never intended to warrant a restraint: And if nature have made the Sea and all the In-lets of it com­mon, it were very injurious to abridge any nation of the free use of so libe­rall an element.

Secondly, it is lawfull for us to use trafique with those Infidels, and to interchange commodities with them, and to abide upon their coasts for ne­gotiation; and to fish in their sea, and to take part of those profits which na­ture hath made common to all com­mers: And if those Pagans shall op­pose us in so warrantable courses, it will be meet for us to tender them all faire satisfaction; perswading them that we intend no harme or prejudice to them in their persons, or estate; but much good to both; labouring [Page 244] to win them by all courteous demea­nure; But if they shall fly out, not­withstanding all our kind indevours, into a violent opposition of us; set­ting upon us in a hostile manner, of­fering to cut our throats in so unjust a quarrell, it is lawfull for us to stand upon our defence, and to repell one force with another; and to use all convenient meanes for our security; and if we cannot otherwise be safe, to raise bulwarks or fortifications for our own indemnity; and if we finde our selves over-powred by impla­cable Savages, to call for the aid and assistance of our friends, and (if the enmity continue and proceed) of our Princes: since the just cause of warre is the propulsation of publique inju­ries; and such injury is as great, as barbarous.

But if not so much cruelty of dis­position as feare and suspition of a strange nation shal arme them against [Page 245] us; our care must be so to manage our own defence, as may be least offensive to them; and therefore we may not take this occasion of killing their per­sons, or sacking their townes, or de­populating their countries; for that in this case they are no other then in­nocent.

If after all gentle intreaties, cour­teous usages, and harmlesse selfe-de­fence, they shall persist in a malicious hostility, and can by no means be re­claimed from their impetuous on­sets; there is now just cause not to deale with them as innocents, but as enemies: and therefore to proceed against them accordingly.

But an higher and more warrant­able title, that we may have to deale with these barbarous Infidels, is, for the propagation of Christian Religi­on; and the promulgation of the Gospel of Jesus Christ amongst these miserable savages: For which we [Page 246] have good ground from the charge of our Saviour: Goe preach the Gos­pell to every creature; Mar. ult. and he that was in bonds for the name of the Lord Jesus, tels us, the word of God is not bound; 2 Tim. 2. 9. not bound, either in fetters, or within li­mits: Oh that we could approve to God, and our consciences, that this is our maine motive and principall drift in our westerne plantations; but how little appearance there is of this holy care and indevour, the plaine dealer upon knowledge hath suffici­ently informed us; Although I now heare of one industrious spirit that hath both learned the language of our new-Islanders, and printed some part of the scripture in it; and train­ed up some of their children in the principles of Christianity: a service highly acceptable to God, and no lesse meritorious of men: The Go­spell then may be, must be preached [Page 247] to those heathens, (otherwise they shall perpetually remaine out of the estate of salvation) and all possible meanes must be used for their conver­sion; But herein I must have leave to depart from Victoria, that he holds it lawfull if the savages doe not freely permit (but goe about to hinder) the preaching of the Gospell, to raise warre against them; as if he would have them cudgelled into Christia­nity: surely this is not the way: It is for Mahumetans to professe plan­ting religion by the sword; it is not for Christians; It is a just clause therefore, that he puts in, that the slaughters hereupon raised may ra­ther prove an hinderance to the con­version of the savages, as indeed it fell out; the poore Indians being by these bloody courses brought into such a detestation of their masters, the Casti­lians, that they profest they would not goe to heaven if any Spaniards were there.

[Page 248] The way then to plant the Gospell of Christ successefully among those Barbarous soules, must be onely gen­tle, and plausible: first, by insinu­ating our selves into them by a dis­creet familiarity, and winning de­portment, by an holy and inoffensive living with them; by working upon them with the notable examples of impartiall justice, strict piety, tender mercy, compassion, chastity, tempe­rance and all other Christian vertues; and when they are thus won to a like­ing of our persons, and carriage, they will be then well capable of our holy counsels; Then will the Christian faith begin to relish with them; and they shall now grow ambitious of that happy condition, which they admire in us: Then shall they be glad to take us into their bosomes: and thinke themselves blessed in our soci­ety, and cohabitation: Loe this is the true way of Christian conquests.; [Page 249] wherein I know not whether shall be the greater gainer, the victor, or the conquered; each of them shall blesse other, and both shall be blessed by the Almighty.

CASE IX.

Whether I need in case of some foul sin committed by me, to have recourse to Gods Minister for absolution; and what effect I may expect there-from.

A Meane would doe well betwixt two extremes; the carelesse neg­lect of our spirituall fathers on the one side, and too confident reliance upon their power, on the other: some there are that doe so over-trust their leaders eyes, that they care not to see with their own; others dare so trust their own judgement, that they think they may sleight their spirituall [Page 250] guides: there can be no safety for the soul, but in a mid-way betwixt both these.

At whose girdle the keyes of the kingdome of heaven doe hang, me thinkes we should not need dispute, when we hear our Saviour so expresly deliver them to Peter, in the name of the rest of his fellowes; and after­wards to all his Apostles, and their lawfull successors in the dispensation of the doctrine and discipline of his Church: In the dispensation of doctrine to all his faithfull Ministers under the Gospell; In the dispensa­tion of discipline to those that are en­trusted with the mannaging of Church-government; with these latter we meddle not; neither need we, if we had occasion; after the so learned and elaborate discourse of the power of the Keyes, set forth by judi­cious Doctor Hammond; to which I suppose nothing can be added. The [Page 251] former is that which lies before us: Doubtlesse, every true minister of Christ, hath by vertue of his first and everlasting commission, two keyes delivered in his hand; they key of knowledge, and the key of spirituall power: the one, whereby he is en­abled to enter and search into, not only the revealed mysteries of salva­tion, but also, in some sort, into the heart of the penitent; there discove­ring (upon an ingenuous revelation of the offender) both the nature, quali­ty, and degree of the sinne; and the truth, validity, and measure of his repentance: The other whereby he may in some sort either lock up the soul under sinne, or free it from sin: these keyes were never given him, but with an intention that he should make use of them upon just occasion. The use that he may and must make of them, is both generall, and spe­ciall: Generall; in publishing the [Page 252] will and pleasure of God signified in his Word, concerning sinners; pro­nouncing forgivenesse of sinnes to the humble penitent, and denouncing judgement to the unbeleeving, and obdured sinner: In which regard, he is as the Herald of the Almighty, pro­claiming war and just indignation to the obstinate; and tendring tearmes of pardon and peace to the relenting and contrite soul: or rather, as the Apostle stiles him, 2 Cor. 5. 20. Gods Ambassadour offering and suing for the reconciliation of men to God; and if that be refused, menacing just vengeance to sinners.

Speciall, in a particular applicati­on of this knowledge and power to the soul of that sinner which makes his addresse unto him: Wherein must be inquired both what necessity there is of this recourse, and what aide and comfort it may bring unto the soul.

[Page 253] Two cases there are wherein cer­tainly there is a necessity of applying our selves to the judgement of our spirituall guides; The first is in our doubt of the nature and quality of the fact; whether it be a sinne, or no sinne; for both many sinnes are so guilded over with faire pretences and colourable circumstances, that they are not to be descryed but by judici­ous eyes; and some actions which are of themselves indifferent may by a scrupulous conscience be mistaken for hainous offences: whither should we goe in these doubts but to our Counsaile learned in the Lawes of God; of whom God himselfe hath said by his Prophet, The Priests lips should keep knowledge; and they should seek the law at his mouth; for he is the messenger of the Lord of Hosts, Mal. 2. 7.

The second is in the irresoluble condition of our souls, after a known [Page 254] sin committed; wherein the burde­ned conscience not being able to give case unto it selfe seekes for aid to the sacred hand of Gods Penitentiary here on earth: and there may finde it; This is that which Elihu, as upon ex­perience, suggesteth unto Job; on his dunghill: Job 33. 22. The soul of the remorsed draweth near to the grave; and his life to the destroyers: ver. 23. But if there be a messenger (of God) with him, an interpreter, one of a thousand, to shew unto man his up­rightnesse, (and the soundnesse of his repentance) ver. 24. then is (God) gratious unto him, and saith, Deliver him from going down into the pit; I have found a ransome, &c. ver. 26. He shall pray unto God; and he will be favourable unto him; and he shall see his face with joy. In case of some dan­gerous sicknesse of the body we trust not our own skill, nor some ignorant quack salvers, but seek to a learned [Page 255] and experienced Physitian for the prescription of some sure remedies; whereas, if it be but for a sore finger, or a tooth-ach, we care onely to make use of our own receits: And so in ci­vil quarrels; if it be only some sleight brabble, we thinke to compose it alone; but if it be some maine questi­on importing our freehold, we are glad to waite on the staires of some judicious Lawyer, and to fee him for advice: How much more is it thus in the perilous condition of our soules; which as it is a part farre more precious then its earthly Taber­nacle, so the diseases whereto it is subject, are infinitely more dange­rous, and deadly.

Is your heart therefore embroyled within you, with the guilt of some hainous sin? labour what you may to make your peace with heaven; humble your selfe unto the dust be­fore the Majesty whom you have of­fended; [Page 256] beat your guilty brest, water your cheeks with your teares; and cry mightily to the father of mercies for a gracions remission; but if after all these penitent indevours you finde your soule still unquiet, and not suffi­ciently apprehensive of a free and full forgivenesse, betake your selfe to Gods faithfull Agent for peace; run to your ghostly Physitian, lay your bosome open before him; flatter not your owne condition; let neither feare nor shame stay his hand from probing and searching the wound to the bottome; and that being done, make carefull use of such spirituall applications as shall be by him admi­nistred to you: This, this is the way to a perfect recovery, and fulnesse of comfort.

But you easily grant that there may be very wholsome use of the ghostly counsell of your Minister in the case of a troubled soule; but you [Page 257] doubt of the validity and power of his absolution: concerning which it was a just question of the Scribes in the Gospell; Who can forgive sinnes but God onely? Mar. 2. 6. Our Savi­our therefore to prove that he had this power, argues it from his divine omnipotence; He onely hath authority to forgive sinnes, (ver. 7.) that can say to the decrepit paralytick; Arise, take up thy bed and walke; (ver. 9.) none but a God can by his command effect this; he is therefore the true God that may absolutely say, Thy sinnes be forgiven thee: (ver. 10.) In­deed, how can it be otherwise? A­gainst God onely is our sin commit­ted; against man onely in the relation that man hath to God; He onely can know the depth of the malignity of sin, who onely knowes the soule wherein it is forged; He onely who is Lord of the soule, the God of spirits, can punish the soule for sin­ning; [Page 258] He onely that is infinite can doome the sinfull soule to infinite torments; He onely therefore it must be, that can release the guilty soule from sin, and punishment. If there­fore man, or Angell shall challenge to himselfe this absolute power to forgive sinne let him be accursed.

Yet withall it must be yeelded, that the blessed Son of God spake not those words of his last commission in vaine; Whose soever sinnes ye remit, they are remitted unto them, and whose soever sinnes ye retaine, they are retain­ed; John 20. 23. neither were they spoken to the then present Apostles onely, but in them to all their faith­full successors to the end of the world.

It cannot therefore but be granted, that there is some kind of power left in the hand of Christs ministers, both to remit and retaine sinne: Neither is this power given onely to the Go­vernours [Page 259] of the Church, in respect of the censures to be inflicted, or relaxed by them; but to all Gods faithfull ministers, in relation to the sins of men: A power not soveraigne and absolute, but limitted and ministeri­all, for either quieting the conscience of the penitent, or further aggrava­ting the conscience of sin and terror of judgement to the obstinate and rebellious; Neither is this onely by way of a bare verball declaration, (which might proceed from any o­ther lips) but in the way of an opera­tive and effectuall application, by vertue of that delegate, or commissi­onary authority, which is by Christ entrusted with them: For certainly, our Saviour meant in these words to conferre somewhat upon his Mini­sters, more then the rest of the world should be capable to receive, or per­forme, The absolution therefore of an authorized person must needs be [Page 260] of greater force and efficacy, then of any private man, how learned or ho­ly soever, since it is grounded upon the institution and commission of the Sonne of God, from which all power and vertue is derived to all his ordi­nances: and we may well say, that whatsoever is in this case, done by Gods minister (the Key not erring) is ratified in heaven: It cannot there­fore but be a great comfort, and cor­diall assurance to the penitent soule, to heare the messenger of God (after a carefull inquisition into his spiritual estate and true sight of his repen­tance) in the name of the Lord Jesus pronouncing to him the full remissi­on of all his sinnes.

And if either the blessing, or curse of a father goe deeper with us, then of any other whosoever; although but proceeding from his own private affection without any warrant from above; how forcible shall we esteeme [Page 261] the (not so much apprecatory, as de­claratory) benedictions, of our spi­rituall Fathers, sent to us, out of Heaven?

Although therefore you may per­haps, through Gods goodnesse, at­taine to such a measure of knowledge and resolution, as to be able to give your selfe satisfaction concerning the state of your soul; yet it cannot be a­misse, out of an abundant caution to take Gods minister along with you, and making him of your spirituall Counsaile, to unbosome your selfe to him freely, for his fatherly advice and concurrence: The neglect whereof, through a kinde of either strangenesse, or mis-conceit, is cer­tainly not a little disadvantageous to the soules of many good Christians. The Romish Laity makes either Ora­cles, or Idols of their Ghostly Fa­thers; if we make Ciphers of ours, I know not whether we be more inju­rious [Page 262] to them, or our selves. We goe not about to rack your consciences to a forced, and exquisite confession, under the pain of a no remission; but we perswade you for your own good, to be more intimate with, and lesse reserved from, those whom God hath set over you for your direction, comfort, salvation.

CASE X.

Whether it be lawfull for a man that is not a professed Divine, that is, (as we for distinction are wont to call him) for a laick person, to take upon him to interpret the Scripture.

MAny distinct considerations had need to make way to the answer.

First, it is one thing for a man to interpret Scripture, another thing to take upon him the function of preach­ing [Page 263] the Gospell, which was perhaps in your intention; this is farre more large then the other; every man that preacheth, interpreteth the Scripture; but every one that interprets Scri­pture, doth not preach: To inter­pret Scripture is onely to give the sense of a Text; but to preach is to divide the Word aright; to ap­ply it to the conscience of the hearer; and in an authoritative way to re­prove sinne, and denounce judgment against sinners; to lay forth the sweet promises of the Gospell to the faith­full and penitent; for the performing whereof there must be a commission to Gods minister from him that sends him; upon which the Apostle hath pronounced a ( [...]) Who is sufficient for these things?

Secondly, it must be considered in what nature, and within what com­passe the interpretation is; for doubt­lesse the just degrees of callings must [Page 264] be herein duely observed; whether in a publique way, as Pastors of con­gregations; or in a private way, as masters of families; whether in the schooles, in a meere Grammaticall way; or in the Church, in a predi­catory.

Thirdly, it must be considered, as what the calling, so what the gifts are of the interpreter: for surely, meere interpretation doth not de­pend upon the profession, but upon the faculty of the undertaker; whe­ther he be learned, or ignorant; whe­ther skilfull in languages and arts (which certainly must be required in whosoever would put forth his hand to so holy and great a worke) or whe­ther inexpert in both: where these gifts of interpretation, and eminent endowments of learning are found, there can be no reason of restraining them from an exercise so beneficially edificatory to the Church of God: [Page 265] without which the truth of Christian religion had wanted much both of her vigour, and lustre in all generati­ons. How famously is it known that Origen before his entring into holy Orders, even at eighteene yeares of his age entred into that great worke of his Catechisings? Act. 18. 24, 25. Apollos the Alexandrian was an elo­quent man, and mighty in scriptures, and taught diligently the things of the Lord; yet knew nothing but the Bap­tisme of John: till Aquila and Pri­scilla took him to task, and more per­fectly expounded to him the way of God; and what happy use it pleased God to make of laick hands, for both the defence and propogation of the Go­spell, we need no other witnesse then S. Jerome; who hath memoriz'd a­mongst the primitive Christians, Aristides, Agrippa, Hegesippus, Ju­stin, Musunus, Modestinus, both the Apollonii, Heraclius, Maximus, and [Page 266] many others, whom God raised up amongst the learned laity of those times, to Apologize for Christianity; And in the last foregoing age, how scarce removed out of our sight, are Laurentius Valla, both the Earles of Mirandula, Capnio, Fagius, Erasmus, Faber, and the rest of those famous way-makers to the succeeding resti­tution of the evangelicall truth; And what a treasure in this kind had the Church of God lost, if it should have missed the learned annotations upon the scripture, derived to us from the hands of Mercerus, Joseph Scaliger, Drusius, both Casaubons, Tilenus, Gro­tius, Heinsius, Selden, and such other expert Philogists, never initiated into sacred Orders?

Fourthly, due and serious conside­ration must be had of the interpreta­tion it selfe; that it be genuine, and orthodox: for there can be nothing in the world more dangerous then to [Page 267] mis-construe God speaking to us in his Word; and to affixe upon his Divine Oracles a sense of our owne, quite dissonant from the intention of that spirit of Truth: care therefore must be taken that the interpretation given be every way conforme to the Analogy of faith, and fully accor­dant to other Scripture; the neglect whereof, through either ignorance or mesprision hath bred many foul and perilous Soloecismes in Divinity; To give you a taste of too full a dish: In the 18. of Ecclesiasticus *, where the Vulgar reades, He that lives for ever created all things at once: some, and those no mean ones, of the Ancient, followed also by latter interpreters, have been misled into an ungrounded conceit of an instantany and entire creation of the world, and all the parts thereof, in the first moment of time; whereas the Scripture, hath [Page 268] expresly and punctually set down the severall six dayes, wherein each part of it was distinctly formed: which those misconstruers are fain to under­stand of the distinct notifications gi­ven to the Angels concerning this al­mighty work: and what curious sub­tilties have been hereupon raised by our school Divines *, is more fit to be past over with an unpleasing smile, then to be seriously recounted; where­as the intention of the place, is onely to signifie that God made all things in the universall world that have any being; intimating not the time of creation, but (as our Version hath it) the Generality of things crea­ted.

What advantage the blasphemous Arrians have formerly taken from the mis-interpretation of Proverbs 8. 22. where Wisdome is brought in [Page 269] (by the mistaking of some ancients) to say, * The Lord created me (in stead of possessed me) in the beginning of his may, before his workes of old, is more worthy of indignation, then any fur­ther prosecution. But most pregnant and notable is the grosse mes-prison of a late famous school-man, Fran­ciscus d'Arriba, Confessor to the late Queen Mother of France, who to maintaine that new way of reconci­ling that scholasticall difference a­mong the Roman doctors, concerning the effectual aide of Divine Grace, de­pending or not depending upon free will, (about which he had sixty dayes disputation with Cardinall Ascoly and Cardinall Bellarmine; shewing how it might well be maintained without the devises of physicall predetermi­nations, or that scientia media of our late Jesuites) relies chiefly for his opi­nion upon that Text of Esay 45. 11. [Page 270] Haec dicit Dominus sanctus Israelis qui fecit ventura, Thus saith the Lord the holy one of Israel who hath made things to come: following a mis-edition of the Vulgar which perverts the sense, by making a wrong stop in the sen­tence, whereas their owne Montanus, and any other that hath but seen the Hebrew Text, would read it; Haec dicit Dominus sanctus Israelis qui fecit eum; Ventura interrogate me: Thus saith the Lord the holy one of Israel; and his maker: Ask me of things to come concerning my sonnes, &c. refer­ring the ventura, (things to come) to the following interrogate. So Poza the late extravagant Doctor of Spaine, in the maintenance of his novel opinions against Fathers and Councels, pressed against him, stands upon his defence, out of the Synod of Constantinople, Act. 5. grounded upon the * words of [Page 271] mis-called, Solomon; Beatus qui prae­dicat verbum inauditum; corrupting both the Text and the Councell; whereas it should be read, verbum in­auditum obedientis: and the Coun­cell hath it aright, [...]:) as ours turnes it likewise, well is he that speaketh in the eares of them that will hear: It were easie to fill a just volume with instances of this kind.

To this purpose it will be requisite to make use of all those helps that may enable an interpreter to under­stand the Scriptures; whether those that are internall in it selfe; or exter­nall from other supplies: of the for­mer kind are a diligent sifting of the context and inference; and a carefull comparing and conferring of one Scripture with another; for all truths agree with themselves; and this Word of God is the Sun that gives us light to see it selfe Externall; where it will [Page 272] be needfull to call both for the aid of arts and tongues; and for the testi­monies and judgements of reverend antiquity, and the not-to-be-neglect­ed authority of moderne Doctors; and thirdly, a due regard of those golden rules of Interpreting; which are recommended to posterity by the learned pennes of Clemens of Alexan­dria, Hierome, Augustine, Gerson, Hy­perius, Illyricus, Jacobus Matthias, and others; which, as meet for a vo­lume apart, may not expect to find a roome in so concise a Tractate.

The want and neglect of all which requisites what strange work it must needs make with the simple and un­lettered, we may well conceive, when great Clerkes have hereupon be­wrayed so foul and palpable miscarri­age.

Albinus, the learned master of Charles the great, writing upon John, finding it said of Judas that having [Page 273] received the Sop, he went imme­diately out; * Et erat nox; and it was night; puts both together as spoken of Judas; He (faith he) was the night that went out; as Christ is the day that gives knowledge to his disciples, that were day too; so Judas the night gives knowledge to the Jewes that were night, of a traitorous wickednesse, &c.

What worke Bernard, (who shew­ed in this, that he saw not all things) makes of the Domonium meridianum, the noone-day-Devill, in one of his Sermons, is evident to be seene; yet had he beene as well seene in language as he was fervent in his devotion; he had spared that discourse as raised from a meere ungrounded interpre­tation; there being no Devill in the text; but a phantasme of his deluded imagination: And if I should set forth the descants that our Postillers [Page 274] run upon the names of Jobs three daughters, I should seeme to you as apt to sport in so serious a subject; and if I could thinke it worth the la­bour of gathering up the wild senses, far-fetcht Allegories, absurd infe­rences, that ignorant Friers have fast­ned upon scripture, it is not a small skin that would containe that Tome.

Surely that man, whosoever he be, that would be hoising saile in these deeps of scripture, had need to be well ballast, and well tackled, and skilfull in the Compasse, else he will have much adoe to escape a wrack: He that will walk in pathes of danger had need to have his eyes about him; an hoodwinkt man may easily be carried against a post: and he that hath not light enough to see his owne way, had need to take heed whom he trusts: He that would blind-fold follow those very interpretations which the Church of Rome hath com­mended [Page 275] for authenticall, would run into foule and dangerous absur dities: let me single out some few confessed by their owne Estius, and Lucas Bru­gensis; such as are plainly contra­dictions to Scripture, and doe, as it were, give the lye to Gods spirit. Such is that 2 Sam. 8. 18. Filii autem David sacerdotes erant; The sonnes of David were Priests: whereas every child knowes that the Scripture fre­quently tells us none could be priests but of Aarons order and tribe; out of Levies loines; and that David was of the house of Judah: the Septuagint rightly turnes it [...] *. Againe who that shall finde it in the Vulgar interpretation: David desperabat &c. David despaired that he could escape from the face of Saul: would not in­ferre that he utterly distrusted Gods [Page 276] assurance by the prophet of his future Kingdome; whereas the originall is by Estius his owne confession, Festi­nabat, as we also turne it, David made hast to get away &c. 1 Sam. 23. 26. He that should finde it reported of one of the sonnes of Er, Qui stare fe­cit solem, (he that made the sun to stand still) would justly wonder what kinde of man this was, that had been so long obscured from the world, and yet should have done so strange a mi­racle as never was done but by Joshua; (1 Chron. 4. 22.) whereas he that lookes into the text, shall finde no mention at all of the Sunne; but one­ly of the meere proper name of Jo­chim the sonne of Er.

He that shall read in Job, where God speakes of the Leviathan; Cum sublatus fuerit (i. Leviathan) time­bunt Angeli et territi purgabuntur; when he raiseth up himselfe the Angels shall feare, and being terrified shall be [Page 277] purged; Job 41. 25. would sure thinke this Whale were the Devill, (as some ancients have mistaken him) and may well wonder how the good Angels (being celestiall spirits) could be capable of feare; or how the evill Angels could be capable of purging: when the text hath no men [...]ion, nor thought of * Angels; but onely sig­nifying the strength and terriblenesse of the Whale expresses it in these words; When he raiseth up himselfe the mighty are afraid; by reason of breakings they purifie themselves. So­lomon was faulty enough in his Idola­try, but he that shall read 1 Kings 11. 5. (in the Vulgar interpretation) that he went after Chamosh the God of the Moabites, shall adde one Idol more to him then we finde him guil­ty of. Solomon was in his holy and [Page 278] regular times, 1 King. 4. 32. full of heavenly meditations, and divine ditties: but he that should follow the Vulgar interpretation, would fa­sten upon him almost * four thou­sand more then ever he owned.

After that Merab Sauls eldest daughter was given away to Adriel the Meholathite, 1 Sam. 18. 20. contra­ry to engagement, he that will follow the Vulgar, must say that David straight fell in love with Michal, the other sister; whereas the text tells us that Michal fell in love with him.

He that should finde in the Vulgar construction, that Saul sung all the day naked before Samuel in Naioth; would think his new prophesying had put him into a merry vein; 1 Sam. 19. 24. whereas the text onely tells us that he fell downe stripped of his wonted clothes. 74

[Page 279] He that should find in the Vulgar, Psal. 71. 5. David reporting of himself [Non novi literaturam] I know no learning, would wonder at the Pro­phets disparagement of his skill, who had elsewhere professed himself wiser then his teachers; whereas all that he sayes, is, * that the mercies and bles­sings of God upon him have been so many, that he knows not the numbers thereof.

He that should find the seven An­gels in the Revelation Vestitos lapide; clothed with stone , Rev. 15. 6. would sure think them buried; whereas the Text is, clothed in pure white linnen.

And what doe you imagine would a plaine reader think of that charge of the wise man; Noli velle mentiri omne mendacium; Be not willing to lie all manner of lies, Ecclus. 7. would he [Page 280] not straight say: some belike I am allowed to lye? whereas the words are peremptory even in Estius his reading, according to ours; Use not to make any manner of lies.

Yea that very correction of the Vulgar interpretation which Brugen­sis allowes and magnifies, 1 Cor. 15. 51. with what safety can it passe the judicious; whiles hs reades; Omnes quidem resurgemus, sed non omnes im­mutabimur; We shall all rise again, but we shall not all be changed: For how can those rise again, that never died? how are those capable of a resurrecti­on, which are onely changed? Whereas the just sense runnes accor­ding to our * Version, We shall not all sleep, but we shall all be changed. For those that are found alive at our Savi­ours second comming shall not sleep in death; yet both they and the for­merly dead must undergo a change.

[Page 281] I could utterly weary you with in­stances; How must he that reades the Apoeryphall Ecclesiasticus, needs say that this man (how obscure soever in his authority) saw more and clea­rer then all the acknowledged Pro­phets of the Old Testament; for he hath foretold us expresly the very name of our Lord Jesus which none of them ever before hand published: For he (Ecclus. 43. 23.) speaking of the deep sea, is read in the Vulgar to say, Plantavit illum Dominus Jesus: The Lord Jesus planted it: I shame to think what sport a Jew will make of such a grosse mistaking; wherein [...] Jesus is mis-read, for [...]: Islands: so as the right sense is onely this; God by his counsell appeaseth the deep, and planteth Islands there­in; But I forbear, onely if you have too much leasure, you may be plea­sed to cast your eye upon the Mar­gine.

[Page 282] In these and many more (for I meant to give you but an assay) the Note: Neh. 6. 2. Percutiamus soedus in vitulis, in campo uno: for, In viculis, in campo, Ono. Anni nostri sicut aranca meditabuntur, Psal. 90. 9. for, as a tale that is told: Concupiscentia spadonic devirgiuabit juvenculam, Ec­olus. 20. 4. Super for subter. Gen. 35. 8. Vulnera for ulccra, Exod. 9. 9. Distinctum for Bis tinctum, Exod. 49. 28. Sanctuarii for Sancto atrii, Levit. 6. 16. Tonsis for Tusis, Levit. 22. 24 Neque for atque, Levit. 25. 11. Solis, for salis, Deut. 29. 23. Non fucrit, for fucrit. Josh. 2. 18. Occidentalem, for Orientalem, Jos. 12. 3. Hamata for Squamata, 1 Sam. 17. 5. Vagi habitabunt for pagi habitabuntur, 1 Sam. 27. 8. Judam for Ludam 2 Sam. 6. 20. Tumulum for tumultum, 2 Sam. 18. 29. I apides seculi, for Sacculi; Prov. 16. 11. Ad alia for ad alta, Prov. 26. 2. Sponsa for Spcciosa, Cant. 2. 13. Adultera for adulta, Ecclus. 42. 9. Infidelem for fide­lem, Esa. 17. 10. Imitantes for irritantes: Terra for [...]er, Ecclus 48. 2, 3. Obsurduit for obsorduit, Esa. 33. 19. Imprudentem for impudentem, Esa. 33. 19. Faunis sica­riis for fatuis sicariis. Esa. 50. 39. Vinctas, for tinctas. Ezec. 23. 13. Ejiciat, for mittat. Mat. 9. 38. Angelus for Angulus. Zach. 10. 4. Servivit for servavit, Ose. 12. 12. Confessus, for confusus, Mar. 8. 38. Sexta for tertia, Mar. 15. 25. Mytelem for Melita, Acts 28. 1. Compellebantur, for Complebantur. Luk. 8. 23. Placuc­runt for Latuerunt. Heb. 13. 2. Adduxistis for ad­dixistis. Jac. 5. 6. In carne for in carcere, 1 Pet. 3. 19. Apppropiuquabit for appropinquavit, 1 Pet. 4 7. Tuba­rum for turbarum, Rev. 19. 1. De igne Chaldaeorum for de ur Chaldaeorum, Nehem. 9. 7. [Page 283] mistakes are important, and such as make no small change in the Text; which I have therefore produced that I might let you see how easie it is for a man that takes all things upon trust to be abused by his credulity; and how unsafe it is much more for an unexpert and injudicious person to meddle with the holy Oracles of the Almighty.

The conclusion then must be, that however it may be lawfull for the eminently learned, either in schooles or families, (according as their cal­ling may warrant them) to interpret even difficult Scriptures, and to untie the knots of a Text; yet since not many are thus qualified, and those that are so qualified, if they neglect to follow the prescribed rules, may easily miscarry, to the great perill both of their owne souls, and others; I should therefore advise that this may be the act of but some few [Page 284] choice persons, and of them, with all possible caution: and that ordinary Christians, if they have a desire, (be­sides all fundamentall truths (which are laid down openly and clearly in the sacred Word of God) to informe themselves in those darker verities, which lie hidden in more obscure Scriptures) to have recourse to their learned and faithfull Pastors; and rather to rest in that light which they shall receive from their well-digested instructions, then to relie upon their own (perhaps confident, but much weaker) judgement.

RESOLUTIONS. The fourth Decade. Cases Matrimoniall.

CASE I.

Whether the marriage of a Sonne or Daughter without or against the Pa­rents consent may be accounted law­full.

MAtrimony, though not a Saorament, yet a sa­cred institution of God for the comfort and propagation of man­kind, is so fruitfull of questions as that * Sanchez the Jesuite hath stuffed [Page 288] and in the * law civil there is the like permission, although under certaine conditions; and particularly in an utter exigency, Victus causa; To the latter whereof, some Expositors hold so strictly, as that they will not admit this to be done for the redemp­tion of the parent from death, or per­petuall bondage; but onely to pre­serve him from affamishing: wherein certainly they are over-strait laced, and too much wedded to syllables; it being questionlesse the intention of the law to comprehend all equally­pressing necessities; to which they adde that this must be onely in the fa­thers power, and that to a child not emancipated, and left to his owne disposing: It is not in my way to di­spute the case with them, take it at the easiest, it sufficiently shewes the great power that Nature it self yeelds [Page 289] to the parent over the child; By how much stronger then the parents inte­rest is in the child, so much more wrongfull it must needs be in the child to neglect his parents in finally bestowing himselfe; And if we look into the positive law of God, we shal find the child so wholly left to the parents will and disposition, as that he may, at his pleasure, dispense with, or frustrate the vow of his childe made to God himselfe.

Neither doe the * Roman doctors generally hold otherwise this day in case of an under-age; and some of them extend this power yet further; yet not without a distinction: hold­ing, that after the age of puberty, those vowes onely are in the mercy of the father, which may be prejudiciall to the government of the family, and paternall power; which is sufficient for my purpose in the question in hand.

[Page 290] And although those Casuists doe sufficiently dote upon their * Mon­kery, and the vowes thereunto apper­taining; yet they ascribe so much to the bond of filiall duty, as that they teach, That a sonne which (his pa­rents being in extreme need, and wanting his help) enters into a religi­ous order; or comes not out of it (though professed) when he might be likely by his coming forth to be aidfull to his said parents, is guilty of a sin against the fifth Commande­ment: so as even with them, the re­spect to a parent ought to over-weigh a vow of religion; although consum­mate by a solemne profession.

But, that you may not object to me the age of the law as therefore abrogated because Mosaicall; heare what the chosen vessell saies under the new law of the Gospell.

[Page 291] If any man thinke that he behaveth himselfe uncomely towards his virgin if she passe the floure of her age, and need so require, let him doe what he will; he sinneth not; let her marry: (1 Cor. 7. 36.) Neverthelesse he that standeth stedfast in his heart, having no necessity; but hath power over his owne will, and hath so decreed in his heart that he will keep his virgin, doth well &c. (ver. 37.) Loe, the Apostle supposeth it in the parents power ei­ther to keep his daughter a virgin, or to dispose of her in marriage: she is not her owne, either to hold, or give; but must be altogether ordered by the superiour will of a parent: Not, that any force is allowed either way, to be used towards the daughter; whether to continue her in a con­strained virginity, or to cast her a­gainst her minde upon a dis-affected match; No, that God who disposeth all things sweetly, would have us [Page 292] doe so too; he allowes parents to be rulers of their children, but not ty­rannes: what they doe therefore in this kinde, must be more by counsaile, then command: and with more sway of love, then authority: thus, con­sulting wisely with the state of times, and the childs disposition, and abili­ties of containing, must the parent either keep his virgin, or labour for the provision of a meet consortship: Thus did the two great Patriarchs of Gods ancient Church, Abraham and Isaac, provide fit matches for their holy seed; whiles the unholy provided unfit matches for them­selves: Thus did their godly issue in all generations take their parents a­long with them in the choice of meet yoke follows, whiles the godless, whe­ther out of impetuous lust, or stub­born disobedience, affect with Esau, Gen. 28. 6, 7, 8. to be their own pur­veyours, to the great regret, and [Page 293] heart-breaking of their parents.

Lastly, the latitude that S. Paul gives of the liberty of marriage to all Christians is, Tantum in Domino; onely in the Lord; 1. Cor. 7. 39. Now how can that marriage be in the Lord, which is against him? and how can that be other then against the Lord; which is against the Lords commandement? And what com­mandment can be more express then, Honor thy father and thy mother, Gal. 6. 1. And, Children obey your parents? ver. 2. And what can be more con­trary to the honour and obedience due to Parents, then to neglect them in the maine businesse that concernes our lives? And what businesse can concerne our life so much, as the choice of a meet partner, with whom we may comfortably wear out all the dayes of our pilgrimage on earth?

Doubtlesse then, we may in a ge­nerality [Page 294] safely conclude, that it is al­together unlawfull for a child to sleight his Parents consent in the choice of his marriage; There may be some particular cases incident, wherein perhaps this may without sinne or blame be forborne; as when the child either by generall permissi­on, or former elocation shall be out of the Parents disposing, or where the parent is defective in his intel­lectualls, or where the child lives in remotis, out of the compasse of intel­ligence; or where the Parent being averse from the true Religion denies his consent to match with any but those of his own strain; or shall upon other by-occasions wilfully stand up­on so unreasonable termes, that nei­ther friends nor authority can over-rule him; But where these or the like preponderating exceptions do not in­tervene, the child cannot without sin balk the Parents consent to his choice in marriage.

[Page 295] But though such marriages with­out, or against consent, be not law­fully made; yet being once made; they are valid. * The civill law, out of the grounds of policy, goes herein too farre, which sentenceth those marriages void, which are made with­out the consent of Parents, or Guar­dians; but as Matrimony hath some­thing in it of Nature, something of Civility, something of Divinity, as instituted by God, and by him to be regulated; so sure this last interest ought to over-sway the other two; The marriage therefore thus made, being though faulty yet true, is doubtlesse after consummation indis­soluble. The parties repentance, and the parents sorrow may have leasure to afflict them, no power to relieve them.

CASE II.

Whether Marriage lawfully made may admit of any cause of divorce, save onely for the violation of the mar­riage bed by fornication or adul­tery.

OUr Saviour hath so punctually decided the case in his Divine Sermon upon the mount, that I can­not but wonder at the boldnesse of any man, who calls himself a Chri­stian, that dares raise a question after so clear and full a determination from the mouth of Truth it self.

Whosoever (saith he) shall put away his wife, saving for the cause of forni­cation, causeth her to commit adultery; and whosoever shall marry her that is divorced, committeth adultery, Mat. 5. 32. Yet I finde this so evident an assertion checked by two sorts of ad­versaries; The one, certain wild No­vellists, [Page 297] who admit of very sleight causes of separation; the other, Ro­mish Doctors, who plead for some other main and important additions to this liberty of divorce.

I have heard too much of, and once saw, a licentious Pamphlet thrown abroad in these lawlesse times, in the defence, and incouragement of Di­vorces (not to be sued out, that so­lemnity needed not, but) to be arbi­trarily given by the distiking hus­band, to his displeasing and unquiet wife; upon this ground principally, that Marriage was instituted for the help and comfort of man; where therefore the match proves such, as that the wife doth but pull down a side, and by her innate peevishnesse, and either sullen, or pettish and fro­ward disposition brings rather dis­comfort to her husband, the end of Marriage being hereby frustrate, why should it not, saith he, be in the Hus­bands [Page 298] power (after some unprevailing meanes of reclamation attempted) to procure his own peace, by casting off this clogge, and to provide for his own peace and contentment in a fitter Match?

Woe is me: To what a passe is the world come that a Christian preten­ding to Reformation, should dare to tender so loose a project to the pub­lique? I must seriously professe when I first did cast my eye upon the front of the book, I supposed some great wit meant to try his skill in the main­tenance of this so wild, and impro­bable a paradox; but ere I could have run over some of those too wel­penned pages, I found the Author was in earnest, and meant seriously to contribute this peece of good coun­sail in way of Reformation to the wise and seasonable care of superiours: I cannot but blush for our age, where­in so bold a motion hath been, a­mongst [Page 299] others, addmitted to the light: what will all the Christian Churches through the world, to whose notice those lines shall come, think of our wofull degeneration in these deplored times, that so un­couth a designe should be set on foot amongst us?

Or how can they construe it other, then a direct contradict on to our Sa­viours sentence, in maintaining that practise, which he expresly profes­seth to oppose? for, what was the Jewish guise here checked by our Sa­viour, but a voluntary repudiation of a lawfull wife upon the termes of dislike, other then fornication? Their mis-interpretation of the Law allu­ded unto, argues no lesse; The law alluded unto is, that of Deuteronomy; where God sayes, When a man hath taken a wife, and hath been her hus­band, and it shall be, that she finde not grace in his eyes, because he hath [Page 300] found in * her matter of nakednesse, he shall write her a bill of divorcement, and send her away, Deut. 24. 1. where­upon he infers with an, Ego dico, I say unto you, Whosoever shall put away his wife saving for fornication, cau­seth her to commit adultery: the mat­ter of nakednesse therefore, for which the Jewes were then wont to divorce their wives, (and offended in so di­vorcing them) was any other dis­pleasing quality, besides the breach of wedlock through bodily unclean­nesse; for which onely had they dis­missed their wives, our Saviour had neither faulted their Glosse, nor their Practise; so as herein Christ the giver of the Law, decides one of those great controversies, which were agi­tated between the emulous schooles of Sammai, and Hillel: determining on Sammai's side, that for no other nakednesse but that of adultery it was [Page 301] lawfull to divorce a wife: and flatly condemning by the like answer that [ [...]] (Mat. 19. 3.) every cause of repudiation then ordinarily received; as it was by the Pharisee purposely propounded unto him.

Answerable whereunto is that of the Prophet Malachi, who (in our just reading) hath so fully decided the cause, as if it had been expresly refer­red to his umperage: The Lord (saith he) hath been witnesse between thee, and the wife of thy youth; against whom thou hast dealt treacherously: Yet is she thy companion, and the wife of thy cove­nant, Mal. 2. 14, 15, 16. (Loe, the wife of thy covenant; therefore too sure setled to be turn'd off upon every sleight occasion; what? was thy co­venant to take her for thy wife till thou shouldst dislike her? what were this but to mock God, and the world? thy covenant implies no lesse then firmitude, and perpetuity.)

[Page 302] Therefore take heed to your spirit; and let none deal treacherously a­gainst the wife of his youth: For the Lord the God of Israel saith that he ha­toth putting away; For one covereth violence with his garment, saith the Lord of hosts: Therefore take heed to your spirit that you deal not treache­rously. What is this treachery, which the Prophet cryes out against, thus vehemently thrice over, with a breath; but pretended and unjust suggestions against a lawfull wife for her undue divorce? and what is that violence, but the injurious execution of those suggestions? upon which unsufficient grounds the Lord profes­ses to hate putting away.

Yea how apparently contrary is this practise to the very originall in­stitution of marriage it selfe? He that made it in paradise ordained thus: Therefore shall a man leave his father and his mother and shall cleave unto his [Page 303] wife; and they two shall be one flesh: Gen. 2. 24. Loe before ever there was father, or mother, or son in the world, God hath appointed that the bond betwixt husband and wife shall be more strait and indissoluble then be­twixt the parent, and child; and can any man be so unreasonable as to de­send it lawfull, upon some unkinde usages, or thwartnesse of disposition, for a parent to abandon and forsake his child; or the sonne to cast off his parent? much lesse therefore may it be thus betwixt an husband and wife: They two are one flesh: Behold here an union of Gods making: A mans body is not more his owne, then his wives body is his: And will a man be content to part easily with a peece of himselfe? Or can we thinke that God will indure an union made by himselfe to be so sleightly dissolved? Or how is this bodily matrimony a lively image of the spirituall marri­age [Page 304] betwixt Christ and his Church (who hath said, I will betroth thee un­to me for ever; Yea I will betroth thee unto me in righteousnesse, and in judge­ment, and in loving kindnesse, and in mercies, Hos. 2. 19.) if upon small oc­casions it may be subject to utter dissolution? Yea, what speake I of Divinity? Even modest Heathens would hisse this Libertinisme off the stage: Amongst the rest, what a fool was Socrates? The Oracle, belike, called him the wisest man of his time; but what a foole was he to indure the unquiet clack of his Xantippe with such coole patience, if he might have quit himselfe of the trouble with a sodaine act of her dismission? Or what use was there of those Delegates of Athens and the Harmosyni of Lace­daemon for the peecing up of these domestique breaches betwixt hus­band and wife, if the imperious hus­band had power to right himselfe [Page 305] by turning the scold out of doores?

Lastly, what silly counsaile was that which the Jewish Rabbi gave to his client, matcht with a shrew; The bone that is falne to thy lot, that doe thou gnaw upon; if it were altogether free for him to leave that bone, and take another?

But I have dwelt too long on so grosse a subject: There may yet seeme some better colour for the plea of the Romish doctors which admit infidelity and heresie into the ranke of those causes which may warrant a divorce: But herein the ambiguity of the word (if heed be not taken) may deceive you; The * Hebrew text, to which our Saviour alludes, uses a word which signifies excision, or cut­ting off; The Greek, a departing a­way, or putting off; The Latine, Divortium, in his true sense is not so hainous as either of the other; signi­fying [Page 306] rather a turning aside, but in our ordinary acception amounts to no lesse then both. But what unjust dif­ference they make betwixt finall se­paration and dissolution, we shall finde in our next discourse: On­wards, that such separation may not be made of man and wife (lawfully joined together) for heresie, or mis­beleefe; we need no other conviction then that peremptory and cleare de­termination of our Saviour which we have formerly infisted on: For though his words on the mount were in a way of doctrinall assertion, yet afterwards, the same words were used by him, in way of a satisfactory an­swer to the Pharises question concer­ning causes of divorce; professedly re­solving that there could be no allow­able ground of such separation except fornication. What words can be more plaine? It is but a shift to say (as the Cardinall doth) that our Sa­viour [Page 307] here meant only to expresse the proper cause of the separation of married persons; which is the breach of marriage faith: as having no oc­casion to speak of those generall grounds which reach to the just sun­dring of all humane societies; such as Heresie and Infidelity; which are enough to unglew all naturall and ci­vill relations betwixt father and son, master and servant, husband and wife: For it is clear that neither que­stion nor answer were bounded with any particularities; The Pharisee asks, Whether for every cause; Our Saviour answers; For no cause but fornication; And it is spoken beside the book, that child or servant should or may forsake parent or master in case of Heresie, or Infidelity: S. Paul teacheth other Doctrine: Let as many servants as are under the yoke (of bon­dage) count their (infidell) masters wor­thy of all honor; 1 Tim. 6. 5. not wor­thy [Page 308] therefore of desertion, and discla­mation: And if the servants may not shake off the bonds of duty; much lesse may the sonne break or file off the bonds of nature; and as for the matrimoniall knot, how too sure it is to be loosed by infidelity it selfe, let the Apostle speak; If any brother hath a wife that beleeveth not, and shee be pleased to dwell with him, let him not put her away, 1 Cor. 7. 12. And the woman which hath an husband that be­leeveth not; and if he be pleased to dwel with her, let her not leave him, ver. 13. And if even Infidelity have not power to dis-oblige the wife or hus­band, much lesse, Heresie: In this pre­tended c [...]se therefore to separate from board and bed, is no better then a presumptuous insolence; It is the peremptory charge of Christ, What God hath joyned together, let not man put asunder, Mat. 19. 6. In all lawfull marriages, it is God that joynes the [Page 309] hands and hearts of the Married. How dare man then undoe the work of God upon devises of his own? Had the Lord ever said, If thy wife be a wilfull mis-beleever, rid thy hands of her; this separation were just; but now that his charge is clean contrary, what an impious saucinesse is it to dis­joyne those whom God hath u­nited?

As therefore, it is not in the power of any third person, upon any what­soever pretence, violently to break the sacred bond of Marriage; so nei­ther may the husband, or wife, en­thrall each other by a willfull deser­tion; whether upon pretext of reli­gion, or any secular occasion; In which case what is to be done must come under a further disquisition; Certainly it was never the intention of the holy and wise God, by vertue of that which was ordained for mans comfort, and remedy of sin, to bind [Page 310] him to a remedilesse misery; which must necessarily fall out, if upon the departure of an unbeleeving, or here­ticall yoke-fellow, the relict party must be tyed up to a perpetualll ne­cessity of either containing, (if he can) or, if he can not, of burning; The wise Doctor of the Gentiles well fore-saw the dangerous inconveni­ence that must needs hereupon ensue, and hath given order for prevention, accordingly.

But if the unbeleeving depart, let him depart; A brother, or a sister is not under bondage in such cases; but God hath called us to peace, 1 Cor. 7. 15. Not, that it is free for a man or woman so for­saken, to carve him, or her-selfe of redresse (what an infinite confusion would follow upon such licentious­ness?) but that after long and patient expectation, and all probable means used for the reduction of the party deserting; recourse be had (as to the [Page 311] last refuge) to publique Ecclesiasticall authority (which is the fittest to ma­nage these matrimoniall affaires, in whose power it may be, either by grave admonitions, and just censures to bring back the offender to his du­ty; or upon his continuing contempt, to set a day for the publication of the just freedome of the forsaken: where­in they shall doe no other then exe­cute that Apostolike sentence for ex­emption from an unjust bondage, and providing for a just peace.

CASE III.

Whether after a lawfull Divorce for adultery, the innocent party may mar­ry againe.

ALthough Matrimony be not, ac­cording to the Romish tenet, one of those Sacraments which im­print an indeleble Character in the [Page 312] receiver; yet it hath, as they hold, such a secret influence upon the soule, as that it leaves a perpetuall bond behind it, never to be dissolved till death; So as those offenders, which by just censure are separated from the board and the bed, cannot yet be freed from the bond of marriage: upon this ground it is that they barre the innocent party from the benefit of a second marriage, as supposing the obligation of the former, still in force. In the ordinary Bills of the Jewish divorce, the repudiated wife had full scope given her of a second choice; as the words ran: * She was to be free, and to have power over her owne soule; to goe away; to be married to any man whom she would: They were not more liberall, then our Ro­mish divorcers are niggardly: The Jewish divorce being upon unwar­rantable cause, made their liberality [Page 313] so much more finfull, as their di­vorce was more unjust: for the di­vorced woman was still in right the lawfull wife of that unrighteous hus­band that dismissed her; the Romish doctrine makes their strait-handed­nesse so much more injurious, as the cause of separation is more just.

Even this question also is expresly determined by our Saviour in his an­swer to the Pharisee: Whosoever shall put away his wife except it be for fornication, and marrieth another, committeth adultery: Mat. 19. Lo then, he that for so just a cause as fornication putteth away his wife and marrieth another, committeth not adultery: the exception mani­festly implies so much, both in reason and common use: neither indeed, are the words capable of any other probable sense: That which Bellar­mine would fasten upon it, referring the exception to the former clause, of [Page 314] dismission onely, so as it might be lawfull to divorce onely for fornica­tion, but not to marry after divorce; cannot stand without a supply of words of his owne, which God never allow'd him to intersert; and besides utterly destroies the sense; casting such a doctrine upon our Saviour, as he would hate to owne; for except that restraint be referred to the mar­rying againe, the sense would run thus, whosoever puts away his wife commits adultery; which stands not with truth or reason: sith it is not the dismission, that is adulterous, but the marriage of another: It is therefore the plaine drift of our Saviour, to teach the Pharisee, that the marri­age of a second wife (after dismission of a former, upon any other cause except for fornication) is no lesse then adultery: thereby enforcing, that upon a just dismission for fornication, a second marriage cannot be branded with adultery.

[Page 315] Neither will it serve his turne, which he would borrow from S. Au­gustine, that upon this negative of our Saviours, we may not look to build an affirmative of our own; for though it be granted, that he, who putting away his wife not for fornica­tion, and marrieth another, sinneth; yet it followes not that he who ha­ving dismissed his wife for fornicati­on, marrieth another, sinneth not at all: A sinne it may be, though not an adultery: For surely if it be a sinne, it must be against a commandement; and if against any commandement, it must be against the seventh; and what is the seventh commandement, but Thou shalt not commit adultery? Besides, the Pharisees question [Is it lawfull for a man to put away his wife for every cause?] was not without a plaine implication of liberty to mar­ry another; which our Saviour well knowing, gives a full answer as well [Page 316] to what he meant, as what he said; which had not been perfectly satis­factory, if he had onely determined that one part concerning dismission, and not the other concerning marri­age; which clause if two other E­vangelists expresse not, yet it must be fetcht necessarily, from the third; since it is a sure and irrefragable rule; That all four Evangelists make up one perfect Gospell. It is therefore a very tottering and unsure ground which our Rhemists build upon; as if the Apostle meant to crosse his Lord, and master, when he saith, The wo­man which hath an husband is bound by the law to her husband, so long as he liveth, Rom. 7. 2. therefore only death can dissolve the bond of marriage; not divorce, not adultery, not di­vorce for adultery: For how plainly doe the words carry their answer in themselves: * The woman (saith the [Page 317] Apostle) that hath an husband: but the woman legally divorced for for­nication, hath no husband: S. Paul speakes of a true wife, not a divorced harlot: He had no occasion here to look aside at matter of divorce, but takes marriage as in its entire right; rather desiring to urge (for clearing the case of our obligation to the law) that the husband being once dead, the wife is free to marry againe, then to intimate the case of her incapacity to marry till he be dead.

As for that bond therefore, which is so much stood upon, if it be taken without all relations to the duties of bed, and board; it is meerly Chime­ricall; nothing but fantasie. There are, or should be Bonds of affecta­tion; Bonds of mutuall respects, and reciprocall duties betwixt man and wife; and these must hold firme not­withstanding any locall separation; neither time, nor place may so much [Page 318] as flacken, much lesse loose them: but, where a just divorce intervenes, these bonds are chopt in peeces, and no more are, then if they had never been: And if all relations cease in death, (as they doe, in whatsoever kind) surely divorce, being (as it is) no other then a legall death, doth ut­terly cut off (as the Hebrew terme im­ports) all former obligations and respects betwixt the parties so finally separated.

The adulterous wife therefore duly divorced being thus dead in law as to her husband, the husband stands now as free as if he had never married: so as I know not why the Apostle should not as well speak to him as to any other; when he saith: Neverthelesse to avoid fornication, let every man have his own wife, 1 Cor. 7. 2. Neither is it otherwise in the case of a chaste wife after her separation from an a­dulterous husband, Mar. 10. 12. In [Page 319] these rights God makes no difference of sexes; both may lawfully claime the same immunities: which cer­tainly should they be denied to either, must needs draw on very great incon­veniences: For in how hard a condi­tion should the innocent party be hereupon left? Either the husband, or wife must be forced to live with an adulterous consort; or be tyed to a perperuall necessity of either doing that (which perhaps they cannot doe) containing; or of suffering that which they ought not to indure, burning.

What remedy now can be expected of so great a mischiefe? Our Romish Doctors propose two; Reconcilia­tion, or Continence: Both good, where they may be had; Reconcilia­tion, in case of a seasonable and sub­misse repentance; That which is the Apostles charge in case of desertion, holds here also, [ [...]] let her [Page 320] be reconciled; the more hainous the wrong is, the more commendable is the remission.

Continence, after such separa­tion, in case of ability so gran­ted: for surely this holy disposition is a gift; and therefore is not had, where it is not bestowed; those that place it in our power, derogate from the thanks of the giver: yea, he that gives it tells us all cannot receive it: Mar. 19. 11. he must not only give it, but give us power to take it.

But where the offending party is obstinately vicious; and the inno­cent (after all indeavours) unable to containe, without a supply of Mar­riage, the case is remedilesse; and we know Gods mercy such, as that he leaves no man for matter of resoluti­on utterly perplexed.

Shortly then, I doubt not but I may (notwithstanding great authori­ties to the contrary) safely resolve, [Page 321] that in the case of divorce it is lawfull for the innocent person to marry; But for that I find the * Church of England hitherto somewhat tender in the point; and this practice, where it rarely falls, generally held, though not sinfull, yet of ill report, and ob­noxious to various censures: I should therefore earnestly advise, and exhort those whom it may concerne, care­fully, and effectually to apply them­selves to the fore-mentioned reme­dies: Reconciliation, if it be possible, to prevent a divorce; Holy indea­vours of a continued continence, (if it may be obtained) to prevent a second marriage after divorce: But if these prevaile not, I dare not lay a load up­on any mans conscience which God hath not burdened; I dare not en­snare those whom God will have free.

CASE IV.

Whether the authority of a Father may reach so farre as to command or compell the Child to dispose of him­selfe in Marriage where he shall ap­point.

THe extent of a paternall power, as we have partly showed alrea­dy, hath been wont to be very large; reaching in some cases by the Civill law to the life of the Child; and by the Jewish law, to his liberty: so as it might seeme much more over ru­ling in case of Marriage; which also seemes to be intimated by the Apostle in that he supposes, and gives a power to the parent either to give or keep his virgin: And how apt pa­rents are to make use of this awfull authority in matching their children for their owne worldly advantage, contrary to their affections and dis­position, [Page 323] we have too lamentable ex­perience every day; neither is it easie to set forth the mischievous effects that have followed upon those com­pelled marriages: for hence ensue perpetuall discontentments to the parties so forcedly conjoyned; an ut­ter frustration of the end of marriage, which should be mutuall comfort: and not seldome, dangerous machi­nations against the life of the dis-af­fected consort; as it were too easie to instance every where; but especially, if the affections of the young couple have been before (as it oft falls out) placed elsewhere; what secret heart-burnings; what loathing of conju­gall society; what adulterous plot­tings doe straight follow; what un­kind defiances passe between them? how doe they wear out their dayes in a melancholick pining, and wish each other, and themselves dead too soon? Yea herein an imperious or covetous [Page 324] parent may be most injurious to him­selfe, in robbing himselfe of that comfort which he might receive from a dutifull child in her person, in her posterity: For the avoiding of which mischiefs it were meet and happy, that both parent and child could both know their limits, which God, and nature hath set, and keep them.

Let the child then know that he is his parents; that as he was once a part of them, in respect of his naturall being, so he should be still in his affe­ctions, and obsequiousnesse, and there­fore that he ought to labour by all meanes to bring his heart unto a con­formity to his parents wil and desire, according to that universall rule of of the Apostle, Children obey your pa­rents in all things; for this is well plea­sing unto the Lord: Colos. 3. 20. The word is comprehensive, In all things. Things unlawfull passe for unpossi­ble; we only can doe, what we ought; [Page 325] In all those things then which are ho­nest, lawfull, just, parents must be obeyed: And the motions for marri­age being such, impose upon the child so farre a duty of obedience as that he is bound to worke his affections what he may, to a compliance with his pa­rents will: the wilfull neglect where­of is no better then a kind of do­mestique rebellion.

Let the parent againe consider, that the child however derived from his loines, is now an entire person in him­selfe; that though the body came from him, yet the soule was from above; that the soule of his child is endowed with powers, and faculties of its own; that as he is not animated by his parents spirits, so he is not in­wardly swayed by his parents will or affections; that when his reason comes to be improved, there may be diffe­rences of judgement betwixt his pa­rent and him; and from thence may [Page 326] arise a diversity or contrariety of af­fections and desires; and these affecti­ons and passions may grow to such strength as that he himselfe shall not be able to master them; and if the parent foole himselfe subject to such infirmities, well may he be induced to pity those whom a vigorous heat of youth hath rendered more head­strong and unruly; withall, let him consider that though the child should be advised by the parent, yet it is fit that he should like for himselfe; that the will is to be led, not driven; that no marriage can be happy, but that which is grounded in love; that love is so altogether voluntary, that it can­not consist with constraint.

Lastly, let him know that the power of the father though great, yet is not unlimited; It is the charge which the father of mercies hath laid upon all earthly fathers, in their carriage to­wards their children; Fathers, pre­voke [Page 327] not your children to wrath, (or (as the * Vulgar reads it) to indignation,) lest they be discouraged: and surely, if there be any thing, wherein the passi­on of the child may be like to be in­ordinately stirred, it is in the crossing of an once-well-setled affection; and diverting the streame of love into another channell; For the avoiding whereof the Imperiall lawes have been so indulgent to the child; as that (according to their best glosses) they permit not the father to disinherit the daughter for choosing an husband, not unworthy of her selfe, though a­gainst her fathers minde; yea some of them have gone a step further: but I forbeare: How far it may be law­full, and fit for the parent to punish the dis-respect of a child, in so impor­tant a case, is not for me to deter­mine; doubtlesse where the provision [Page 328] is arbitrary, the parent will be apt so to manage it, as to make the child sensible of a disobedience; so as both parts herein suffer, and are put into a way of late repentance.

Briefly therefore, on the one side the Sonne or Daughter doe justly of­fend, if without cause, or wilfully they refuse the Parents choice; and are in duty bound to work their hearts to an obedient subjection to those, unto whom they owe them­selves; and for this cause must be wary in suffering their affections, to over-runne their owne reason, and their parents guidance; either sup­pressing the first motions of unruly passions, or if they grow impetuous, venting them betimes into the tender cares of their indulgent Parents, or discreet and faithful Friends; that so they may seasonably prevent their owne misery, and their Parents grief: On the other side the Parent shall of­fend, [Page 329] if holding too hard an hand o­ver the fruit of his own body, he shall resolve violently to force the Childs affections to his own bent; and where he finds them setled will rather break then bow them; not caring so much to perswade as to compel love: These harshnesses have too much of the Ty­ran in thē, to be incident into a Chri­stian Parent; who must transact all these matrimonial affaires in a smooth and plausible way of consent, and in­dulgence: A noble and ancient pattern whereof we finde in the contract be­twixt Isaac and his Rebecca, Gen. 24. 49, 50, 51, 52, &c. the match was trea­ted on betwixt Abrahams proxie, and the maids father Bethuel, and her bro­ther Laban: The circumstances drew their full consent; all is agreed upon betwixt Parents; but when all this is done, nothing is done, till Rebecca have given her assent; they said, We will call the damsell, and enquire at her [Page 330] mouth, ver. 57. And they called Re­becca, and said unto her, Wilt thou goe with this man? And she said, I will goe, ver. 58. Now the contract is made up; till then, all the engage­ments of Bethuel and Laban were but complements; Till then, all the rich Jewells of Gold and Silver given to the intended Bride; and all the pre­cious things given to her mother, and brother, were but at the mercy of the receivers; Neither ought it to be other in all Christian espousalls; the free and cheerfull consent of Parents and parties makes the match both full, and happy; Let not the Child dare to crosse his Parents; let not the Parent think to force the Child; and when an undue bargain is, through the heat of passion, made up past re­clamation, let love and pity so far in­tercede for the offenders, that they may smart for their rashness and neg­lect, without their utter undoing.

CASE V.

Whether the marriage of Consens-Ger­mans, that is, of Brothers or Sisters Children, be lawfull.

THe displeasure of the Canon law against such marriages is so high flowne, that no lesse can take it off then an utter diremption of them even though they be not ratified on­ly, but consummate by carnall knowledge: and the grave authority of some Ancient and holy Fathers, and eminent Doctors of the Church, (besides five severall Councells) have passed an hard sentence upon them. The maine ground of the supposed unlawfulnesse, is, that clause of Gods Law which was more then judici­all: No man shall approach unto any neare of kin to his flesh to uncover their nakednesse, I am the Lord, Levit. 18. 6. which though Cor­nelius [Page 332] à Lapide * (following his Ra­dulphus) would seeme to restraine to the ensuing particularities onely; yet they may not thinke that God will suffer so universall a charge to be so straitly pent; especially, when we know that there are divers other no lesse unlawfull copulations omitted in this black Roll of uncleannesses, then those which are expresly men­tioned; the rest being intended to come in by way of analogy onely: for it is easie for any reader to ob­serve, that all the severalities of the degrees prohibited run still upon the male; under which, if the like exor­bitances of the other sexe were not meant to be comprehended, females should be lawlesse, and the law im­perfect; To marry then with a Cou­sen-german is apprehended by these Canonists to be an approach to one near kinne to our flesh; and there­fore [Page 333] intimated in that inhibition: Doctor * Willet (a man much deser­ving of Gods Church) conceives these marriages to be analogically forbidden, in this catalogue of Moses: For, saith he, if the degrees of affini­ty be limited to the third or fourth degree; as it is not lawfull for a man to marry his wives daughters daugh­ter (Levit 18. 17.) why should not the line of consanguinity hold to the fourth degree likewise; and so neither the sonne to marry his fathers bro­thers daughter; or the daughter the sonne? But that worthy Divine did not heedfully observe the great diffe­rence betwixt these instanced de­grees; for the one of these is an equall line, the other in an unequall; the one is a collaterall consanguinity, the o­ther is in a directly descending affini­ty; so as the husband should be grandfather in law to the wife, which [Page 334] in all reason were very unlawfull, and absurd; since in all those descending degrees there is a kinde of reveren­tiall inequality betwixt the lower and superiour, which abhorres from all proportion of a match; whereas the collaterall equidistance of cousens­german from the stock whence both descend, hath in it no such appearance of inequality. Certainly then, no analogy can draw these marriages within the prohibition; whether the nearenesse of approach to our flesh be a just barre unto them, must be further considered.

Gregory *, (whom some would faine interesse in our English Apostle­ship) writing to his Augustine, in way of answer to his Interrogations, puts these marriages in the same rank with the marriages of brothers and sisters; which he brands with this note, that they seldome ever prove [Page 335] fruitful; As for those of brothers and sisters, (which were usuall, as Dio­dorus Siculus tells us) amongst the Egyptians, and are this day in use in barbarous nations) nature it selfe a­bominates the mention of them; In the first plantation of the world there was a necessity of them; as without which there could have been no hu­mane generation; but afterwards, as the Earth grew more peopled, so these matches grew still more odi­ous: like as it was also in the first plantation of the Church; the holy Seed being confined to a narrow compasse, were forced, unlesse they would joyne with Infidels, to match sometimes over-near to themselves; as even Abraham himself, the father of the faithfull, marrried his brothers daughter: but when the bounds of men and beleevers came to be enlar­ged, the greater elbow-room opened a wider liberty of choice; and now [Page 336] Gods select people found it meet to observe a due distance in the elections of their wives; so regarding the en­tirenesse of their Tribes, as that they fell not within the lines of prohibiti­on; wherein no mention being made of brothers and sisters children, in all ages and nations, some have thought fit to make use of their freedome in this kind.

What need I to urge the case of Zelophehads five daughters, Num. 36. 11. who by Gods own approbation, were married to their fathers bro­thers sonnes; To mince the matter, and to make these sonnes, nephewes, according to the Hebrew phrase (as Doctor Willet indevours to doe) is without either need, or warrant; since these scruples were not since that time stood upon by the Jewish peo­ple: yea this practise was no lesse current among the civiller hea­thens of old; I could tell you of [Page 337] * Cluentia (by Ciceroes relation) mar­ried to her cousen Marc. Aurins; of Marcus Antonius the wise and vertu­ous Philosopher, marrying his cou­sen Faustina; and a world of others; were not this labour saved me by the learned lawyer Hotoman, who tells us how universall this liberty was of old, as being enacted by the lawes of the Roman Empire; and descen­ding to the lawes of Justitian; con­fidently affirmes that for five hun­dred yeares, all Christian people (magno consensu) allowed and fol­lowed these Imperiall constitutions concerning Matrimony: Although I might here put him in minde of Theodosius enacting the contrary in his time; as it is like, by S. * Ambroses instigation; who then sharply in­veighed against these matches in a ve­hement [Page 338] epistle to Paternus, being then in hand with a marriage betwixt his sonne and his sisters daughter; But excepting that good Emperour, the coast was cleare perhaps, for the Ce­sarean constitutions; not so for the judgement of Divines; amongst whom, it were enough that S. Am­brose, and S. Augustine (the flower of the Latine fathers) if no other, doe bitterly oppose it: This judgement being found not probable onely, but exceeding profitable to the Roman See, it is no wonder if it obtained both credit and vigour from thence. De­crees and Decretalls make this inhi­bition good, not without damning the contrary practise; and now the Civill and Canon lawes clashing with one another, how can it be but the prevalence must be according to the power of the abettor? What li­berty the Court of Rome hath taken to it selfe in the restraint of marria­ges, [Page 339] and upon what ground; all Christendome both sees, and feeles: One while their prohibition reaches to the seventh degree in naturall kin­dred; then to the fourth: One while the impediment of spirituall cogna­tion, is stretched so far, without any colour of divine authority, as that (what by * Baptisme, what by Con­firmation) twenty severall persons are excluded from the capacity of inter-marriage; another while the market is falne to fourteene: And wherefore this? but for the sweet and scarce valuable gaine of Dispensati­ons, upon these occasions flowing in­to the Lateran Treasure? For which considerations we have learned not to attribute too much to the judgement or practise of the Roman Courtiers in this point. Upon the summing up [Page 340] then of this discourse, will you be pleased to see the vast latitude of different opinions concerning these marriages? The Canon law de­cryes them with such rigour, as to ordaine them (though after a con­jugall conversation) separated; some moderate Divines (as Doctor Willet) finding this sentence too hard, goe not so far; but hold this nearenesse of blood a sufficient barre to hinder a marriage contracted, though not consummate: some others (as M. Perkins in my conference with him) hold it, though not unlawfull, yet in­convenient: some others, (as learned and acute M. Wootton, and M. Atter­soll, who hath written a very large discourse in way of vindication of them) hold them both lawfull, and not inexpedient; * Hotoman yet high­er, pium & Christianum esse, quod du­arum [Page 341] sororum liberi matrimonio copu­lentur; that such a marriage is pious and Christian: In all this variety if you desire my opinion, I shall nei­ther censure such marriages where they are made; nor yet incourage them to be made, where they are not: To those that are free I should be apt to suggest counsailes of forbearance; the world is wide, the choice abun­dant; let it be never so lawfull, yet how unwise and unsafe were it to put the conscience upon the nicety of a dangerous scruple, when it may keep aloof off, with a cleare freedome, and resolute contentment? That these marriages are disallowed by so great authority, should be reason enough to divert the free thoughts to a safer election: and againe, that these mar­riages are allowed both by Civill lawes, and by the judgement of emi­nent Divines; and not any where forbidden either (Jure Caesareo or [Page 342] Apostolico) by Gods law or Caesars; should be reason enough to beare up the hearts of those who are so match­ed, from a scrupulous dejection. Let the persons therefore so married en­joy themselves with mutuall compla­cencie and comfort, not disquieting themselves with needlesse anxieties; Let those single persons who have the world before them looke further off; and fasten their affections at a more unquestionable distance: As it was wont to be worthy M. Perkins his ex­pression to this purpose; Let those who must walk close to the brim of a steep precipice, look well to their feet, and tread sure, and so they may come off perhaps as fafely as those that are further off; but if a man be to choose his way, let him so cast it, as that he may not approach neare to the brink of danger.

CASE VI.

Whether is it necessary or requisite there should be a witnessed contract, or espousals of the parties to be Mar­ried, before the solemnization of the Marriage.

IT is necessary we should distinguish betwixt those things which are es­sentiall to the very being of marriage, and those which are requisite to the orderly, and well-being of it: It may not be denyed that the Marriage is true and valid, which with full con­sent of parties is made without the intervention of a previous contract in a due and lawfull forme prescribed by the Church: but it is no lesse true that such a marriage is very unmeet, and liable to just exceptions: That God *, who is the author and insti­tutor of Marriage made a difference [Page 344] in his law, betwixt a bethrothing, and a matrimony; he that ordained the one, ordained the other also; and ordained the one in order to the o­ther: And this was constantly obser­ved in the practise of Gods ancient people accordingly: so we find the * Blessed Virgin espoused to Joseph before his taking her to wife; neither did the Christian Church think fit to vary from so Holy a pattern; where­to S. 101 Paul alludes, when writing to, and of the Church of Corinth, (which he had happily planted, and forwar­ded in grace) he saith, I have espoused you to one husband, that I may present you as a chaste virgin to Christ. Loe he hath betrothed them to Christ in that he had entred them into a Covenant of grace, and pre­pared their soules for a full consum­mation of their blessed union with [Page 345] Christ in glory; intimating (as Ma­trimony is a lively resemblance of our spirituall conjunction with the Lord of Glory) that our bodily espousalls here below, are they which must make way for a complete marriage ensuing: It were not difficult, if it were needfull, to deduce this holy practise downe from the primitive times to the present: Before the Ni­cene Councell we finde the Synod of * Ancyra enjoyning a severe penance to the man that should defile his bo­dy by an incestuous copulation, after espousalls contracted: And the Councell of Eliveris or Granado, a­bout the time of the Nicene coventi­on, takes such notice of these betro­things, as that it decreed , that if any Parents should break the faith mutually engaged in these espousalls, they should be held off during the space of three yeeres from the Com­munion. [Page 346] What should I trouble you with the Decree of * Syricius concer­ning these contracts; or with the pregnant testimonies of S. Chrysostom and Ambrose to this purpose; which were but to waste time and paper up­on so clear a Truth? As there was no Christian Church which did not carefully observe this sacred Rite: so above all other the Roman hath been at least curious enough in calling for a strict and severe account of their espousalls: what voluminous dis­courses, what a world of nice questi­ons have fallen from the pens of their Canonists, and Casuists concerning this subject? Certainly this is a point of so much use and agitation amongst them, that were it not for the quar­rels arising here-from, it is to be fea­red their consistories would want work, and their Advocates imploy­ment: But to speak ingenuously, [Page 347] those of the Roman Clientele are not more carefull and punctuall in scan­ning, and observing the rules and practise of their espousalls, then ours here, are incurious of both: How many have we heard to say, they will make no promise of themselves till they come to the Church-dore? and of those that do contract themselves, how weakly and insufficiently is it performed on many hands? so as their act, if questioned, is no way obliging; nor such as upon the least discontent, will indure a con­testation.

Now whereas there is a double contract, or espousall, the one of the future; the other of the present: that of the present, if it be expressed in full termes, differs nothing from marri­age it selfe, save onely in the publique solemnization; which doubtlesse is a ceremony so requisite, as that with­out it an horrible confusion must [Page 348] needs follow both in Church and State.

That of the future, is a mutuall engagement of both parties that they will marry each other; which is most properly an espousall-contract; gi­ving both assurance to each other of a mutuall consent to a Matrimony that shall be; and yet withall some meet respiration of a more full triall, and inquiry into each other conditi­on: For which purpose the wisdome of the Church hath ordained that there should be a solemn publication of that more private Contract three severall Sabbaths, to the whole Con­gregation; not without the earnest charge of a discovery of whatsoever impediment might justly hinder the intended matrimony.

The frequent, but unfit, use of these Espousall contracts in the Ro­man Church, betwixt their children [Page 349] in minority (allowing * seven yeares in either party for a meet age to this purpose) must needs breed both much question, and incovenience; but in those which are of a mature age, and therefore able to judge of what may be most expedient for themselves, this institution cannot be but singularly usefull and beneficiall: For neither is it meet that so great a worke, and so highly importing us as matrimony, should be rashly and suddainly undertaken; neither doth it a little conduce to our safety, that since marriage once passed, is irrever­sible, we may have some breathing­time betwixt our promise and ac­complishment to informe our selves throughly before it be too late, what we must trust to for ever. For we may take notice, that though marriage is [Page 350] indissoluble, yet these espousalls, or contracts of a future marriage, are not so: many things may intervene betwixt this engagement by promise; and that full and complete, solem­nization, which may breake off the match.

The Casuists determine of seven­teen severall cases, at the least, which may sort to this effect; some where­of have a proper relation to the Ro­mish religion; others are common to what ever contracts of this kind; I shall not grudge you the mention of them all. An espousall-contract therefore may (according to their judgement) be broken off.

By the willing remission of both parts, although it had been seconded by an oath: By the entrance of the one party into some order of religi­on: By a contract with some other in words of the present: By the tra­vaile of one of the parties into remote [Page 351] countries, and not returning upon a lawfull summons at a time pre­fixed by the Judge: By an affinity supervening upon the sinfull copula­tion of one of the parties with the neare kinswoman of the other: By the absolution of the Judge upon suit of one of the parties repenting and pleading minority: By lapse of the time set for the accomplishment of the marriage by the disease of one of the parties being fallen into palsie, leprosie, the Neapolitan sicknesse, or any other contagious distemper, or notable deformity: By the fornicati­on of one of the parties committed since the contract: By a vow of cha­stity preceding the contract: By some capitall enmity intervening betwixt the families and persons of the con­tracted by the omission of perfor­ming the promised conditions; as when the dowry agreed upon, is re­tracted, or held off: By the fame of [Page 352] a Canonicall impediment; By suscep­tion of Orders after contract; By the supervention of a legall kindred, in­expected; By the harshnesse and asperity of disposition in either party: And (which may comprise many o­ther particularities) by the falling out and discovery of any such accident, or event, as if it had beene sooner knowne would have prevented the making of such a contract; All these, say they, may barre a marriage after espousalls: but yet so, as that the parties may not be their own arbiters, to break off their contracts at plea­sure, but must have recourse to the Judge Ecclesiasticall; and submit themselves to the over-ruling sen­tence of the Church.

If you balk those which are proper to the Romish superstition, yet you shall finde many just and allowable causes which may (after a contract of espousall) interrupt a purposed [Page 353] matrimony: so as, if there were nei­ther rule, nor example of any such preceding engagement, yet surely, it were very fit for our owne security, and our confident and comfortable entrance into that estate which we shall never put off, to observe care­fully this previous betrothing of our selves, ere we knit the knot that can never be loosed.

CASE VII.

Whether there ought to be a prohibition and forbearance of marriages, and marriage duties for some appointed times.

IT is one thing what is lawfull, ano­ther thing what is fit and expedi­ent; as S. Paul hath taught us to distinguish: marriage being of Gods owne institution, and that in the per­fection of Paradise, there can be no [Page 354] time wherein it may be unlawfull to celebrate it; yet there may be times wherein it is unfit: There is the like reason of times and places; both of them are circumstances alike; The debt of the marriage-bed not onely may, but must be paid by them whom God hath called to that estate; yet there are places, wherein it were barbarous and piacular to defray it: even, besides those places which are destin'd to an holy use, the Jewes of old held this act done in the field or under a tree, worthy of scourging: * Doubtlesse, there are times so whol­ly consecrated to devotion, as that therein it would be utterly unseason­able to let our thoughts loose to the most lawfull pleasures: Hence is that charge of the Apostle, Defraud not one the other, except it be with consent for the time, that ye may give your selves to fasting & prayer: 1 Cor. 7. 5. [Page 355] So then as Solomon himselfe can say, There is a time to embrace, and a time to refraine from embraceing: Ecclus. 3. 5. But what the limitation of this time may be, no small question hath been raised in the Church of God: neither doe there want extremities on both sides: The Church of Rome hath heretofore been excessively large in her prohibitions; forbidding the solemnization of marriage upon pretence of the holinesse of the great feasts to be observed; for the whole third part of the yeare; neither doth the account fall lesse, if we reckon from the Advent to the Epiphany; from Septuagesima Sunday to the Octaves of Easter; and from three dayes before the Ascension to the Octaves of Pentecost; all which had wont to be strictly kept; besides the feast of S. John Baptist added by some; and the foure Ember weekes by others; but now of late upon se­cond [Page 356] thoughts, their Councell of * Trent have found it meet to shorten the restraint, and somewhat to en­large the liberty of the seasons for marriage, having exempted the two onely solemne feasts of Easter and the Nativity; and abridged some previous weekes of the former: and for us how observant our Consistories had wont to be of those inhibitions for their own gain, every Almanack can witnesse. Some wor­thy Divines in our Church did not stick to professe their great dislike of our conforming herein to the Church of Rome, to the scandall of the Refor­med: Concerning both which, I must say: that if either we, or they doe put any holinesse in the time ex­empted, or any unholinesse in the act inhibited, we cannot be excused from superstition; Can any time be more holy then Gods owne day? yet on [Page 357] that day we doe commonly both publish marriages, and celebrate them. But if, as in some solemne fasts, indicted by the Church for some publique humiliation, we both doe, and injoyne to abstaine from all conjugall society; so in a desire the more devoutly to celebrate the me­mory of Gods infinite mercy to man­kind in sending a Saviour into the world for our Redemption; and of the glorious resurrection of that Son of God for our justification, we shall take off our selves from all worldly cares or delights, I see not why it should not be both lawfull, and com­mendable.

But, to say as it is, as the Roma­nists are guilty of too much scruple in this kind, so too many of our own are no lesse faulty in a carelesse dis-re­gard of the holiest occasions of re­straint; which I would to God it did not too palpably appear in the scan­dalous [Page 359] carnality of many (otherwise inoffensive) professors. It is a com­mon practice (which I have long wisht an opportunity to censure) that husbands and wives forget one ano­ther too soone: Scarce are their con­sorts fully cold, ere they are laying for a second match; and too few moneths are enow for the consum­mation of it. Let me be bold to say, this hast hath in it too much not im­modesty onely, but inhumanity: If we look abroad into the world, we shall finde not among Gods peculiar people onely, but even amongst the very Heathens, a meet (and not nig­gardly) intermission betwixt the de­cease of the one husband, or wife, and the marriage of another: A whole year was found little enough for the wife to mourne for her husband de­parted: and so is still amongst the very Chineses, though Atheous Pa­gans [Page 358] *; And by the civill Lawes, a woman marrying within a yeare after her husbands death is counted infa­mous.

It was no short time that * Abra­ham (though now very old) breathed upon the death of Sara, (the first of wives mentioned as mourned for) before he tooke Keturah; and yet the Hebrew Doctors observe that there is a short letter in the midst of that word which signifies his mourning; to imply (say they) that his mourn­ing was but moderate: I am sure his sonne Isaac (Gen. 24. 67.) was not comforted concerning the death of that his good mother, till three years after her decease: At which time he brought his Rebecca into that tent which even still retained the name of Sarahs: whereas with us, after the profession of the greatest dearenesse, [Page 360] the old posie of the deaths-ring tells what we may trust to; Dead and for­gotten: Who can but blush to read that some Heathens were faine to make lawes that the wife might not be allowed to continue her solemne mourning for her husband above ten moneths; and to see that our women had need of a law to inforce them so to mourne for the space of one?

In other Reformed Churches there is a determinate time of moneths set, untill the expiration whereof wi­dowes, (especially the younger) are not suffered to marry; it were more then requisite that these loose times were, here with us, curbed with so seasonable a Constitution; but it were yet more happy, if a due regard of publique honesty and Christian modesty could set bounds to our in­ordinate desires; and so moderate our affections, that the world may see we are led by a better guide then appe­tite.

CASE VIII.

Whether it be necessary that marriages should be celebrated by a Minister; and whether they may be valid, and lawfull without him.

IT is no marvell if the Church of Rome (which holds matrimony a Sacrament, conferring Grace by the very worke wrought) require an ab­solute necessity of the Priests hand in so holy an act; but for us, who (though reverently esteeming that sacred institution, yet) set it in a key lower, it admits of too much questi­on whether we need to stand upon the terms of a Ministers agency in the performance of that solemne action: There are those in these wild times that have held it sufficiently lawfull for the parties having agreed upon the bargaine before friends and wit­nesses, to betake themselves to bed: [Page 362] others have thought this act of con­joining the married persons in wed­lock a fitter act for the Magistrate to undertake. And certainly if there were nothing in marriage but meere nature, it could not be amisse that men and women should upon their mutuall agreement couple themselves together after the manner of brute creatures; And if there were nothing in marriage but meere civility, the Magistrate might be meet to be im­ployed in this service: But now that we Christians know matrimony to be an holy institution of God him­selfe; which he not onely ordained, but actually celebrated betwixt the first Innocent paire; and which be­ing for the propagation of an holy seed, requires a speciall benediction; how can we in reason thinke any man meet for this office, but the man of God, set over us in the Lord; to de­rive the blessings of heaven upon our [Page 363] heads? From hence therefore have our wholsome lawes taken a just hint to appropriate this service to a law­full Minister onely: so as what ever private contract may be transacted in corners betwixt the parties affected to each other, yet the marriage-knot cannot be publiquely knit by any o­ther hand, then Gods Ministers. And herein certainly we have just cause to blesse the wisdome both of the Church and State, which hath so re­gulated these matrimoniall affaires; as that they are not onely orderly but safely managed: For doubtlesse were not this provision carefully made, the world would be quite over-run with beastlinesse, and horrible confusion: And in this point we may well give the Church of Rome her due, and acknowledge the wise care of her Lateran and Tridentine Councells, which have enacted so strict Decrees against Clandestine marriages, and [Page 364] have taken so severe a course for the reforming of many foul disorders in these matrimoniall proceedings; as may be of good use for the Christian world: Had they done the like in o­ther cases, their light had not gone out in a snuffe: As therefore it is ge­nerally both decreed and observed (not without excellent reason) in all Christian Churches, that marriages should be solemnized in the publique Congregation of Gods people; so it cannot but be requisite that it should be done by him, who is ordained to be the mouth of the Congregation to God; and the mouth of God to the Congregation; And, as under the Law, the Preist was the man, who must conveigh blessings from God to his people; so under the Gospell who can be so apt for this divine office, as he that serves at the Evangelicall al­tar? And if all our marriages must be (according to the Apostles charge) [Page 365] made in the Lord, who is so meet to pronounce Gods ratification of our marriages, as he who is the profest Herald of the Almighty? As it is therefore requisite (even according to the Roman Constitutions) that he who is betrusted with the Cure of our soules, should besides other witnesses be both present and active in, and at our domestique contracts of matri­mony: so by the lawes both of our Church and Kingdome, it is necessa­ry he should have his hand in the publique celebration of them. There may then be firme contracts, there cannot be lawfull marriages without Gods ministers.

CASE IX.

Wheeher there be any necessity or use of thrice publishing the contract of mar­riage in the Congregation, before the Celebration of it; and whether it be fit that any dispensation should be granted for the forbearance of it.

THere were amongst the Jewes certaine ceremoniall Observati­ons (besides the Precepts) which they called the Hedge of the law; and such there cannot want amongst Christi­ans; whose prudence must direct them both to the ordaining, and keeping of some such expedient rules, as may best preserve Gods lawes from violation: Of that kinde is this which we now have in hand; This publique and reiterated denun­ciation of * Bannes before matri­mony, [Page 367] is an Institution required and kept both by all the Churches of the Roman-Correspondence, and by all the Reformed; amongst which, as ours, is most eminent, so it hath still expressed the most zeal and care of the due observing of so wholsome a Rite: six severall * Canons were made in our Provinciall Synod un­der the Authority of King James of blessed memory, in the year 1603. to this purpose; with as strict charges, restrictions, and cautions, as the wit of man could in this case de­vise; and the late Directory hath found cause to second so usefull and laudable a Constitution; For the convenience, if not necessity, where­of, we need no other argument then the grievous mischiefes that have followed upon the neglect of this or­dinance; that one were enough, which is instanced by the Triden­tine [Page 368] * Synod it self; that some leud persons having secretly married themselves to one, take liberty to leave that match, and publiquely joyne themselves to another, with whom they live wickedly in a perpe­tuall adultery; the frequent practice whereof in those hotter climates we may easily beleeve; when we see that in our owne more temperate region, the fear of hanging cannot hold some off from so foul a sinne. Let me adde hereunto the late experiments of some odiously incestuous marri­ages, which (even by the relation of our Diurnalists) have by this meanes found a damnable passage, to the great dishonour of God, and shame of this Church; And hereup­on the sad issues of stolne Marriages, wherein Parents have been most felo­niously robbed of their Children, are too feelingly known, and irrecove­rably [Page 369] lamented: But as for unfit­nesse and inequality of matches, both for age, and condition, (to the too late repentance and utter undoing of both parties) they are so ordinary, that they are every dayes Occurren­ces: And all these evills have sensi­bly growne from the want of these publique Denuntiations of Bannes; partly upon the unhappy throwing open of the fence of discipline, and partly upon the surreption of secret­ly-mis-gotten dispensations; And though that forementioned Synod of ours seconded by Royall authority *, tooke the most probable course that could be conceived (the liberty of those Faculties being continued) for the preventing of these abuses; as the restraint of the grant of them by any other, save those who have Episco­pall authority; and security to be [Page 370] given upon good bonds that the coast is cleare from all pre-contracts, suits of law, and prohibited degrees; that the full consent of parents or Guardians is had; that the marriage shall be celebrated in the parish Church where one of the parties dwelleth; and lastly the oathes re­quired of two sufficient witnesses (one whereof knowne to the Judge) that the expresse consent of parents or Guardians goes along with the match intended; and that there is no impediment from any pre-contract, kindred, or alliance: yet notwith­standing all this prudent caution we have by wofull experience found our offices cheated, faculties corruptly procured, and matches illegally struck up contrary to the pretended conditions: Whereas all this mis­chiefe might have been avoided, if as no marriage may be allowed but publique; so those publique marriages [Page 371] might not be celebrated but after thrice publication of the contract in both the parish Churches where the persons contracted are knowne to in­habite: For so both the Parents of either side cannot but be acquainted with the ingagements of their chil­dren; and if there be any just hin­drance, either by precontract, or by proximity of blood, or affinity, it cannot be concealed; that so the snare of either an unlawfull or preju­diciall matrimony may be seasonably eschewed: To this good purpose therefore it is no lesse then necessary (as I humbly conceive) to be both enacted and observed, that no mar­riage should be allowed of any per­son whatsoever (except perhaps the Peers of the Realme, who are sup­posed to be famously known through the Kingdome) without a solemne publication of their contracts at three severall meetings to the Congrega­tion [Page 372] assembled; and that there may no dispensation at all be granted to the contrary upon any whatsoever conditions: And if some pretend bashfulnesse, others feare of malici­ous prevention (as the Tridentine Doctors suggest) yet it is fit that both should vaile to the inevitable danger of those mischievous incon­veniences, which follow upon these clandestine matches, and silent di­spensations.

CASE X.

Whether marriages once made may be annulled, and utterly voided; and in what cases this may be done.

IN what onely case a divorce may be made after a lawfull marriage, you have seen before; now you in­quire of the annulling or voiding of marriages made unlawfully: which [Page 373] doubtlesse may be done by just au­thority upon divers well-grounded occasions: For as it is an indispensa­ble charge, Those whom God hath joined together let no man put asunder; so it no lesse truly holds on the con­trary; Those whom God hath for­bidden to be joined, let no man keep together.

Our Casuists are wont to be very co­pious in this subject, distinguishing be­twixt those Impediments which may hinder a Marriage from being made; and those which may undoe and void the Marriage once made. They insist upon many particularities of both kindes; and some perhaps too many: I shall instance onely in those of the latter sort which are unquestionable; whereof the first shall be a mis-prison of the match; when one party is mistaken for another; as when he who by a full contract consented to marry with Anne, is by a fraudulent [Page 374] substitution put upon a marriage with Mary; whether upon the like­nesse of the woman, or the want of a discerning sense in the man; or by some cunning conveyance of the per­fidious contrivers; For certainly, it is the consent that makes the marri­age; and if the hearts be not joined together by mutuall agreement and affection, the coupling of the hands is but a ceremony utterly ineffectuall: I doubt not but it was in Jacobs power to have dis-avowed the match with Leah, whom his father in law had deceitfully obtruded upon him, being more injurious in changing his wise, then in ten-times changing his wages; since his heart was not ac­cessary to that match, which the dark­nesse of the night, and the suttlety of a Laban had drawne him into.

The like case is in the marrying a bond-woman in stead of a free; a base plebeian in stead of a person of [Page 375] honour: As then we use to say that mis-reckoning is no payment, so we may well affirme that a mis-marriage is no true wedlock; and therefore justly to be branded with a nullity.

A second may be the foedity and unnaturalnesse of the match; when the parties incestuously marry with­in the first collaterall degree, of Bro­thers and sisters; the very mention whereof, even nature it selfe, not de­praved, abhorres: so as I cannot but wonder that the Roman Schoole should be so much divided in this point, whiles * Bonaventure, Richar­dus, and Durand hold such a marri­age even by divine law, a nullity; contrarily Aquinas, Cajetan, Thomas de Argentina and others (whom Co­varruvias recites) defend this to be onely an impediment by the Canon law, and therefore that it may be in [Page 376] the Popes power to dispense with so foule a matrimony; Against whom upon better reason, * Scotus, and Dominicus à Soto prove such marria­ges by the law of nature to be utterly void and null; with whom all in­genuous Christians cannot but wil­lingly concurre in their judgements.

A third may be the horriblenesse of a crime committed in the way to a wicked match; and that of two sorts: the one of murther, the other of adultery: The former, when the wife hath conspired with the adulterer to murder her husband, with an intent to marry the murtherer; or in the like case the husband to murther the wife.

The latter when a man living in a knowne adultery with another mans wife, contracts matrimony with the adulteresse in the life time of her hus­band.

[Page 377] A fourth is the indissoluble knot of marriage with a former still sur­viving husband or wife; the force whereof is such, as that it frustrates and voideth any supervening matri­mony, (except in the case specified in the foregoing discourse of Di­vorce) during the naturall life of the consorts. Many unhappy, and per­plexed cases have we met withall in this kinde; neither doth it seldome fall out, that the husband being con­fidently reported for dead in the warres, or in travell abroad; the wife after some yeares stay, and diligent inquisition, finding the rumour strongly verified by credible testimo­nies, and tendered oathes, begins to listen to some earnest suitor; and be­stowes her selfe in a second marriage; not long after which, her onely true, revived husband returnes, and chal­lengeth his right in that his lawfull wife; pretending the mis-carriage of [Page 378] letters and messages sent by him in that forced absence. In this case what is to be done? The woman hath cast her selfe upon the danger of a Capi­tall law, except she have expected the time limited by statute; or if she escape one of the husbands is to seeke for a wife, whom both may not en­joy: Doubtlesse the second marriage, is by Ecclesiasticall authority to be pronounced, as it is, null; which in­deed never had any true right to be: and the first must be content to swal­low its owne inconveniences.

A fifth may be a violent enforce­ment of the match: when a woman is upon feare of paine, or death com­pelled to yeeld her selfe in marriage, and is not perswaded, but affrighted into the bonds of wedlock: surely this is rather a rape then a matrimo­ny, and therefore, upon utter want of consent, a nullity.

A sixt may be a preceding, irreme­diable [Page 379] impotency, or incapacity of marriage duties; whether naturall, or advantageous; whether by way of petpetuall maleficiation, or casu­alty: I say, preceding; for if any such disability be subsequent to the marriage, the nullity is avoided; But if the persons finde in themselves be­fore hand such remedilesse incapabi­lity of a marriage estate, they shall be highly injurious to each other, and shall foulely abuse the ordinance of God in their entring into such a condition: For it is apparent, that the maine ends of marriage are herein utterly frustrate; which were by Gods appointment, the propagation of mankinde, and the remedy of in­continency; neither of which being attaineable in such a defective estate of body, justly is such a match pro­nounced a nullity.

But here I cannot but take occasion to commend the modesty of the wo­men [Page 380] of our nation; amongst whom, there are so rare examples of suits in this kinde, prosecuted in our Eccle­siasticall Consistories; it is not to be doubted but there are many defects of this nature to be found every where, yet scarce one in an age offers to complaine, and call for redresse: so as it seemes they are willing to smother all secret deficiencies, in a bashfull silence; whereas those of other warmer regions impatient of the wrongs of their conjugall disap­pointments, fly out into open con­testations, and fearelesly seeke for those remedies, which the lawes pro­vided in such cases will allow them. Certainly the merit of this modest temper is so much the greater, by how much more it is concealed from the world; and those of either sexe that are content to bite in their hidden grievances of this kinde, are worthy of double [Page 381] honour from those consorts, whose injurious infirmities they both have not disclosed, and suffer in suppressing.

ADDITIONALS.
Certaine cases of doubt, besides the formerly published, having been proposed to me, and received a private solution; I have thought fit, upon the addresse of a se­cond Edition, to adjoyne them to their fellowes, for the satisfaction of any others, whom the same Cases may concerne.

CASE I.

Whether a Marriage consummate be­twixt the Uncle and Neece be so ut­terly unlawfull, as to merit a sentence of present separation.

RESOLUTION.

WHat prodigious Matches have been of late made, and are still continued, upon advantage taken of the unset­lednesse of the times, I had rather [Page 384] silently lament, then openly pro­claime to the world: Such as are not capable of any Apology, call for our blushing and teares; but there are some others which dare stand upon the termes of defence: Such is this which you have here propounded on the behalf of your friend, whom it seemes a mis-learned Advocate would faine bear up in a course alto­gether unjustifiable; that cause must needs be desperately ill, that can find no mercenary abettors: His offensive marriage with his Necce is hartned by a sophisticall pleader; whose wit and skil is so ill bestowed in this case, that I wish his fee might be perpetu­all silence: but when he hath made use of his best art to so bad a purpose, those colours of defence, wherewith he thinks to daub over so foul a cause will prove but water-colours, which shall easily be wash'd off by this pre­sent confutation.

[Page 385] It was lawfull, he saith, before the Leviticall Law, thus to Match: So were worse Marriages then this: Let him tell me that Cain, and Enoch, and Seth married their owne Sisters; as Saturne also did, by the report of Diodorus Siculús; Necessity made it then not unlawfull: It is a just rule of * Law, Those things may not be drawne into precedent, which have been yeelded upon mere necessity; as we use to say that necessity hath no law, so it can make none. After­wards, as mankinde grew, nature it selfe taught men to keep further a­loofe from their owne flesh; and still remotenesse of distance enlarged it selfe with time.

Abraham (saith he) married his neece Sarah, Gen. 11. 29. (if at least Sarah were Iscah) Nahor his neece Milcha, Amram his Aunt Jochebed; [Page 386] and these not without a large blessing upon the bed. Let him tell me also, that Jacob married two Sisters, and conversed conjugally with both (which were now shamefully incestu­ous) yet was herein blessed with the issue of sixe of those Patriarohs, who were the root of those glorious stemmes of Israel. If we should speak most flavourably of these conjuncti­ons, to ranke them under malum quia prohibitum, it must needs follow, that till the prohibition came, they could not be censured as evill: Though good Authors make it justly questi­onable, whether these fore-alledged marriages should deservedly be charged with a sin, or excused by Gods extraordinary dispensation; in the meane time the blessing was to the person, not to the act: even Lots in­cestuous copulation with his daugh­ters sped well; two famous nations sprang thence, and of one of them, [Page 387] the gracious progenitrice of the Sa­viour of the world; Yet this is no plea for the allowance of that mon­strous conjunction. After the law, one justifiable example were worth a thousand before it.

Lo, good Caleb (saith he) married his daughter Achsah to his brother Othoniel. Joshua. 15. 16, 17. Indeed, this case comes as home to the busi­nesse as it is farre off from the text. See whether mes-prison of Scripture may mislead us: A man that under­stands nothing but the English, or Vul­gar Latin, may easily run into so foul an error; weigh but the place well, and you will soone finde the fault without me; Othniel the son of Kenaz, Calebs brother, tooke Kerath-Sepher, and Caleb gave him Achsah his daughter to wife; The English wanting cases expresses it doubtfully, it will be cleare in the Latin; as Mon­tanus, and Pagnine, two great Masters [Page 388] of the Hebrew in their Interlinear, read it, Othniel filius Kenaz, fratris Calebi; Othniel the Sonne of Kenaz, which Kenaz was Caleb's brother, Both the Hebrew and Chaldee cleare that sense: So the Septuagint, as E­manuel Sa also urges upon that place, Judg. 1. 13. expressly say that Kenaz was the brother of Caleb, and not O­thoniel; wherein yet I cannot much blame an unballanced judgement, whiles I find the Septuagint contrary to themselves: For in Josh. 15. 16. they say, Othniel was Caleb's younger brother; In Judg. 3. 9. they say, Kenaz the father of Othniel was so; for which there is no excuse, but the large sense of a Brother in the Hebrew, We are brethren, saith Abraham to Lot, yet he was Lot's Uncle: So was Ke­naz a Progenitor to Othniel, for Caleb is styled the sonne of Jephunneh the Kenezite, Josh, 14. 14. & Numb. 32. 12. The case was onely this, Kenaz was [Page 389] the Ancestor of Caleb; and one of the same name was his brother, the fa­ther of Othniel: what can be more plain then 1 Chron. 4. 13. And the sons of Kenaz, Othniel and Seraiah; So as if we take this most strictly to the letter, it implies nothing but the mar­riage of two Cozens German, Othniel the sonne of Kenaz, and Achsah the daughter of Galeb, Brothers chil­dren, as Bucer upon the place, Me­lanehton in his Tract De Conjugio, Ju­nius; and indeed, who otherwise? And now by this time you see what a poore ground this is to build upon; rather, you see a castle, not built on the sand, but in the ayre; meer mis-conceit.

But, saith the Advocate, this mar­riage is no where directly forbidden in the Law; I must tell him it is but a meer shuffle to stand upon the termes of a Direct prohibition, when there is one no lesse forceable, and convictive:

[Page 390] Two wayes may ought be effectu­ally forbidden in the law; Either in plain expression of termes, or in clear implication of sense; surely, that is rather more in the law which it means irrefragably, than what it verbally expresseth: Now, however this be not in the letter of the law, yet in the sense it is: The same law that forbids the Nephew to marry the Aunt, doth eadem opera, forbid the Uncle to mar­ry the Neece; In regard as of near­nesse, yea identity of blood, the case is the same; however, some inequa­lity may be conceived in respect of government, and subjection: And if upon some oeconomicall termes, it be more unfit for a Nephew to marry his Aunt, than for an Uncle to marry his Neece, yet in regard of blood, and that bodily conjunction, which God principally aymes at in this pro­hibition, what difference can possibly be conceived? Nature hath made no [Page 391] other distance betwixt the Nephew, & the Aunt, than betwixt the Neece and Uncle: or if there be any, they must be sharper eyes than mine that can discerne it: God himselfe (me­thinks) hath put this out of doubt; the reason wherewith he backs his cōmand is irresistible; The Nephew shall not marry the Fathers Sister; why so? For she is thy Fathers neare Kinswoman, ver. 12. Lo, it is the near­nesse of blood that makes this match unlawfull, not respect of civill ine­quality; Where the blood then is e­qually neare, the marriage must be equally unlawfull.

That rule of Law which is preten­ded, In prohibitoriis, quicquid non pro­hibetur, permittitur; What is not for­bidden, is permitted, had need of a faire construction; Indeed, that which is not forbidden either in words, or in necessary analogie and implication of sense, is supposed to be left at large; [Page 392] But what place hath this Axiome in a case not lesse really forbidden, than the expressed? And if wee should strictly follow the letter of this Ma­xime, it would lead us into Sodome; since there are mariages not specified, which would be monstrously incestu­ous, and such as honesty would blush to mention, as shall appeare in the sequele.

Neither is there any more force in that other, In poenalibus non fit exten­sio, That penall lawes should not be stretcht further, then their words im­port. Certainly, in some sense I know no law that is not penall; but why this law, Thou shalt not marry thy Aunt or Neece should be rather penall, than, Thou shalt not commit adultery, I know not; I am sure learned Zanchius ac­counts these of the 18. of Leviticus, equally morall: and Bucanus holds them to be against the law of nature.

And if in humane laws this axiome [Page 393] may challenge a place, yet in the roy­all lawes of our Maker, where, under one sin mentioned, all the species and appendances, and the whole claime of that wickednesse is wont to be comprised, doubtlesse it is utterly un­sufferable; Neither is here any ex­tension of this prohibition beyond those limits which God hath fixed in the undoubted sense of his law; In the seventh Cōmandement, nothing is expressed but adultery, shall wee therefore say neither fornication, nor pollution, nor sodomie is there for­bidden? were not this to destroy that law, which God makes to be spiritu­all; and to open the flood-gates to a torrent of licentiousnesse? surely, it is easie to observe that Gods Spirit no lesse meanes that which he pleaseth to suppresse. The Psalmist sayes, Pro­motion comes neither from the East, nor from the West, nor from the South, Psal. 75. 6. Shall we therefore say, It is [Page 394] from the North? Is not that coast equally excluded, though not expres­sed? It is too much boldness to hold God too strictly to syllables, when it is easie to determine what he meant to imply: These rules then are use­lesse: Let me see now if the Advocate can as easily shake off one or two rules of law, which I shall returne up­on him in lieu of his. Is committit in legem, &c. He wrongs the law who keeping close to the letter, strives a­gainst the intent and purpose of the law; And that other not unlike, In fraudem legis facit qui salvis verbis legis sententiam ejus circumvenit, If this be not the case in hand, I shall professe to know nothing.

From Rules, let us look to Autho­rities, It is directly maintained (he saith) by the Canonists, and Schole­men; But what is it, that is so main­tained? Not this match (let no man thinke so) but that proposition, viz. [Page 395] that this match is no where directly forbidden in Gods law; If we take it of express termes, no wise man ever denied it; not Canonists, and Schole­men onely, or those few named Au­thours, but all reasonable men con­curre in this truth; what needs a ci­tation of some, where all agree? But if we take it of the necessary & cleare sense of the law by just Analogie and infallible implication, now, none of the forecited, or any other orthodox Authours will deny the certaine and indubitable prohibition of this mar­riage. How well the rest will speed, judge by their fore-man, Tho: Aqui­nas; who expressly determines it a false position, that those are joyned together by God, who match within the fourth degree; whereas this is in the third; Not to say how stifly Peter Lombard urges the unlawfulnesse of marriages to the very seventh degree, vel quousque parentela possit agnosci, [Page 396] even as farre as the kinred may be discern'd, following herein Pope Gre­gory and Nicholas: To shut up short, none of all his cited Authors dare be any other then professed enemies to this match; no lesse, then the most zealous Commissioner of that now­abolished Court, whose late sentence is upon Record enough to this pur­pose.

As for Lyra, who is trayled in here, and cited strongly in Othoniels case, what shall I say? It grieves my soule to see any well-minded Christian so abused by mis-information: This au­thor hath thus, Turpitudinom Sororis, &c. Thou shalt not uncover the na­kednesse of thy Fathers Sister, or thy Mothers Sister, (& eodum modo) and in the same manner is forbidden the marriage betwixt the brother, and the daughter of the Aunt, for it is the same degree: so Lyra: Nothing can be more peremptory against this case, [Page 397] in favour of which he is alledged.

This would be the issue of all the rest, if it were worth the while to ex­amine them, in that, which yeelded, nothing advanceth the cause of the producer. They are all as professed enemies to this match as my selfe; onely they deny an expresse mention of this cause, which was never either thought needfull, or intended to be pleaded.

For the Protestant Divines wch are cited to give Testimony to the non­prohibition of this marriage, I must cry shame upon those false hands, wch have so palpably abused both your friend, and the Authors; Let me give but a taste of some, Melancthon, Zanchius, Bucanus; who are said to allow the match, by admitting onely the degrees mentioned to be prohi­bited; No place is instanced, versa­tur in generalibus; You know the word, but let your eyes be judges of [Page 398] their opinion; Melancthon, mentio­ning the marriage of Abraham and Sarah in the second degree: Hoc gra­du saith he) in linea inaequali &c. In this degree, in an inequall line, mar­riages are forbidden by Gods law, because God doth universally or­daine a greater reverence to be yeeld­ed to a Superiour degree, then to an equall; It is the very case in hand, which Melancthon thus sentenceth; For Zanchius; he citing the text of Levit. 18. 13. Thou shalt not unco­ver the nakednesse of thy Mothers Sister; adds, ergo ne (que) mater teram, &c. Therefore no man, saith he, may marry his Aunt; and that charge, which he gives concerning the Aunt, would God have to be understood also of the Uncle, which is the Fa­thers brother, or the Mothers bro­ther; whiles he addes a reason of the prohibition, For she is the neare kins­woman of thy Father, or Mother; [Page 399] Thus Zanchius in his booke de Operi­bus Dei. Lib. 4. de Sponsalibus; who absolutely condemnes this marriage as incestuous, and indispensable.

Bucanus, moving the case of Abra­hams marriage with Sarah, and Am­rams with Jochebed &c. Leaves it in doubt whether these men were (as the times stood) particularly dispensed with by God, or whether they sinned in thus marrying, even before the law, against the law of nature, by which he holds these matches utterly prohibited; With what forhead then, could any Schollar obtrude these false allegations upon an honest cli­ent, whether to draw his foot into a snare, or to keepe it there, under pre­tence of favouring what they pro­fessedly oppose.

As for the moderne Jewes, to whom he stretches out his hand for succour, it matters little what they now teach or doe; they are not more [Page 400] without God, then without honesty, or credit; Their opinions are fabu­lous, their judgement frivolous, and their practice not worth our know­ledge, or regard.

I rather descend to the resolution of our owne Church; That our ever honored Mother hath passed her con­demnatorie sentence upon this Mar­riage in her Ratification of that Or­thodoxe and just Table of forbid­den Degrees, set forth by authority under Archb. Parker, what doubt we now? Doe we acknowledge the Ora­cular Voice of our dear and holy Mo­ther the Church of England, and yet question whether we should obey it? Certainly in a case of Conscience, a dutifull sonne (me thinks) should ra­ther hold fit to follow the sacred de­termination of the Church, then the municipall Acts of the civill state. It is an ill office of those that would set Church, and State, Canons and Sta­tutes, [Page 401] together by the eares even in these points wherein they are perfect friends.

The statute of 32. of Henry 8. c. 38. intending to marre the Romish market of gainfull dispensations, and injurious prohibitions, professeth to allow all marriages that are not pro­hibited by Gods Law; such is this in hand; prohibited, though not in the Letter, yet in necessary inference, and interpretation; The Canon 99, of 1603. hath thus; No person shall marry within the degrees prohibited by the lawes of God, and expressed in a Table set forth by Authority in the yeare 1563. and all marriages so made and contracted shall be ad­judged incestuous and unlawfull.

What scruple can arise hence? here is a perfect harmonie betwixt sta­tute, and Canon. It is a mere Cavill (no better) to take And for Or; as if the meaning were, that all degrees [Page 402] whether prohibited by the law of God, or expressed in that Table are forbidden; This is a foule straine both to Grammer, and to the sence and Scope of the Canon, which plainly intends to averre that all those degrees prohibited in that Table are also forbidden by the lawes of God; A truth so certaine, that if ei­ther selfe-love, or love of gaine did not betray the eye, it is a wonder how it should abide a contradiction.

It is observable that neither statute, nor Canon speake of an expresse pro­hibition in Gods Law; And the Ca­non purposely distinguisheth the termes prohibited by Gods Law, and expressed in the Table, as justly sup­posing, there may be as strong a pro­hibition in a sense implyed, as ver­bally expressed: Else, if our Lawes (as is pretended) should give allow­ance (which God forbid) to any marriages not expresly interminis, [Page 403] forbidden; we should have strange and uncouth mixtures.

God by Moses expresly forbad the uncovering the nakednesse of Father and Mother; he expressed not the nakednesse of Son, and Daughter: He expresly names the nakednesse of the Fathers wife, he expresseth not the nakednesse of the Mothers hus­band; He expresly names the naked­nesse of thy Sister; he expresseth not the nakednesse of thy Brother; he ex­presseth the nakednesse of thy Sons Daughter, he expresseth not the na­kednesse of thy Daughters Son: He expresseth the nakednesse of thy Fa­thers Wives Daughter, he expresseth not the Mothers Husbands Sonne; he expresseth the Fathers Sister, not the Mothers Brother; He expresses the Daughter-in-law, not the Son-in­law. So as by this Rule, if it should be carried onely by meer verball ex­pressions, a Woman might marry her [Page 404] Son-in-law; the Nephew might mar­ry his great Aunt, the Neece her great Unkle; the Daughter might marry her Mothers Husbands Sonne; the Grand mother might marry her Daughters Son; the Daughter might marry with her Mothers Husband; Were these things to be allowed, the world would be all Sodome: These things therefore are of necessity in­cluded in the Law by a cleare Ana­logie; no lesse then if they had been expressed.

But have there been (as he saith) pre­cedents of this match? I am sory to heare it; surely, the more the worse; and the more need to redresse it: the addition of this, if neglected, would help to strengthen an ill claime.

Cozens German, he saith, have been allowed to marry; What is that to the present case? The difference is as much as betwixt a Nephew and an Uncle; The Uncle hath too much of [Page 405] the Parents both right, and blood, to challenge an equall claime with a Cozen.

In the shutting up, it pitties me to see your worthy Friend driven to this plea; and like a drowning man, to snatch at so small a twigge; Being done (he saith) it ought not to be un­done. Alas, the Canon is peremptory; It is incestuous and unlawfull; what plea is there for continuance? Speak not therefore of either connivence or dispensation; This match is onely capable of a late, but much wished repentance on the Offenders part; and a just diremption on the part of the Judges.

CASE II.

Whether it be lawfull for a man to marry his Wives Brothers Widow.

AMongst all the heads of Case­divinity there is no one that yeil­deth more seruples, then this of Mar­riage, whether we regard the qualifi­cation of the Persons, or the emer­gency of actions, and events. It is the lawfulnesse of this match that you inquire after, not the expedience, and I must shape my answer accor­dingly.

It hath been the wisdome and care of our godly and prudent Predeces­sours, to ordaine a Table of all the prohibited degrees to be publiquely hang'd up in all the severall Chur­ches of this Nation; to which all Commers might have recourse for satisfaction: This Catalogue you have perused, and find no exception of the [Page 407] case specified; I know no reason therefore why you may not conclude it not unlawfull.

The question of the Expedience would require another debate; doubt­lesse, in all cases of this nature, it must needs be yeilded that it were more meet, and safe (since the world yeilds so large a latitude of choice) to look further off; A wise and good man will not willingly trespasse against the rules of just expedience: and will be as carefull to consider what is fit to be done, as what is lawfull; but that comes not, at this time, within your inquiry.

Whiles therefore I give my opini­on for the lawfulnesse of this Marri­age with the Relict of the Wives bro­ther, I doe no whit clash (as you sug­gest) with the judgment of Beza, and Master Perkins, who professe their dislike of such copulations: I shall as readily cry them downe for un­meet, [Page 408] and inconvenient, as those, that with too much boldnesse come over neare to the Verge of a sinfull con­juction; but for the not unlawful­nesse of this match, I did upon the first hearing, give my affirmative an­swer: and the more I consider of it, I am the more confirmed in that re­solution.

That universall rule mentioned by you, as layd down by those two wor­thy Authors, must indure a limitation; Cujus non licet inire nuptias, ejus nec conjugis licet; that there is the same degree and force of relation of a third person (in the case of marriage) to the husband, and to the wife; so as proximity of blood in the one, should not be a greater barre, then the same proximity of alliance in the other; Otherwise, many more copulations will fall under censure, then com­mon practice will condescend unto; and that ground of, uxor pars quae­dam [Page 409] viri, The Wife is as a part of the Husband, as it holds not in naturall relation, at all, so not in all conjugall; as might be too easily instanced in divers particulars.

And if there were not some diffe­rence in these relations, those second persons which are interessed in the Husband, or Wife, might not come neare to the next in affinity to them; For example, my Brother may not marry my Sister, therefore by this rule, he might not marry my Wives Sister, and so it should be unlawfull for two Brothers, to marry two Si­sters; then which nothing is more or­dinary, or lesse obnoxious to disal­lowance.

That generall rule therefore, must be restrained necessarily, to the first rank of affinity; if we descend lower, it holds not. For further explanation, our Civilians and Canonists are wont to make two kindes or degrees of [Page 410] Affinity, The one Primary, the other Secondary; In the first, is the affinity betwixt the Husband, and the Co­zens of blood to his Wife, or, è con­verso; which indeed, is justly held no lesse for a barre of marriage, then his own naturall consanguinity; for that is an affinity contracted upon interest of blood, by vertue of that entire u­nion, betwixt Man and Wife, where­by they both become one flesh; The Secondary affinity is that, wherein there is another Person added more­over to that first kinde, now menti­oned; the affinity arising onely from the interest of an affinity, formerly contracted, not from consanguinity; and this is not so binding, as either to hinder a marriage to be contracted, or being contracted, to dissolve it.

In this rank are the Brothers Wife, and Sisters Husband; and therefore, upon the decease of the Brother and Sister, the Husband of the Sister de­ceased, [Page 411] and the Wife of the deceased Brother may marry together, as Dr. Nicholaus Everhardus out of Richar­dus de Media Villa, and Panormitan, hath clearly determined *; Of this kind is the Marriage now questioned, which therefore doth not fall within the compasse of the prohibition, Se­cundum genus affinitatis, &c. The se­cond kinde of affinity, which is by a Person added unto the first kinde is no barre to Matrimony; And with this judgment I find no reason why I should not concurre; but if any man thinke that he sees just ground to en­tertaine a contrary opinion, I pre­judge him not, but modestly leave him to the freedome of his owne thoughts.

CASE III.

Whether an incestuous Marriage con­tracted in simplicity of heart be­twixt two Persons ignorant of such a desilement, and so farre consum­mate as that Children are borne in that wedlocke, ought to be made knowne and prosecuted to a dissolu­tion.

IT is a question (as it may be put) full of doubt and intricacy, Paral­lel whereunto, and eminent in this kinde, was that case, which I had long since, from the relation of M. Perkins, and since that, have met with it in the report of two severall German Authours.

The case thus: A Gentlewoman of great note in those parts, being left a Widow, had her Sonne trained up in her house; who now having passed the age of his puberty, grew up, as in stature, so in wanton desires; earnestly [Page 413] soliciting her Chamber-maid to his lust; she had the grace, not onely to repell his offers, but being wearied with his wicked importunity, to com­plaine to her Mistresse, of his impe­tuous motions: The Mother out of a purpose to represse this wild hu­mour in her Sonne, bids the Maid, in a seeming yeildance to make appoint­ment the night following with him, at which time she would change beds with the Maid, and school the young man to purpose. This being accor­dingly done, the Devil so farre pre­vailed with the Mother, that in stead of chastising, she yeilded to the lust of her Sonne, and by him conceived a Daughter: and now finding her selfe to grow bigge, for the hiding of her shame, she retired secretly to a re­mote part of the countrey, where she unknowne left the burden of her wombe, and tooke order for all care & secrecy of education: After some [Page 414] yeares the Mother thinks fit to call home her concealed issue, under the pretence of a Kinswoman, and gives her such breeding in her house, as might become the Child of a Friend: The Maid grew up to such comeli­nesse, both of person, and behaviour, that the Sonne, now growne a Man, fell into passionate love with her; and in short, married her; little thinking that he was now matched with his owne Daughter, begotten by him of his own Mother: They lived loving­ly and comfortably together, and had divers Children betwixt them. Onely the Mother, who was alone conscious of this monstrous copula­tion, began to finde an hell in her bosome; and in a deep remorse, made the case, at last, knowne to some learned Divines of that time, who be­stowed many serious thoughts upon so uncouth a businesse; and finally agreed upon this determination, That [Page 415] all circumstances throughly weigh­ed; the penitent Mother should after a sould humiliation secretly make her peace with God, for so foule and prodigious a sin; but that the know­ledge of the horrible incestuousnesse of this match, should still, and ever be concealed from the yong couple, who thought of nothing, but a faire and honest legality in this their con­junction.

The decision of this point comes somewhat home to yours; to spend my opinion therefore in this case, I finde no reason, all things considered, to vary from their judgment.

I say then, that the Mothers sinne was not more haynous in yeilding to so abominable an act of incest with her Son, then in smothering the sea­sonable notice of it for the prevent­ing of a worse incest with her Daugh­ter; for that first act of her incest was transient, but this incest which was [Page 416] occasioned by her silence was perma­nent, and derivable to her posterity: She ought therefore, though to her perpetuall shame, when she saw an in­clination in her Sonne to so foulely­unnaturall a match, to have fore­stalled it by a free confession, and to have made him sensible of so odious a procation: Which not being done, it must needs be said, that, as the first act of the Sonne was a vo­luntary fornication, but an involun­tary incest; so this incestuous copu­lation of the Sonne with the Daugh­ter, was involuntary in them both; and there cannot be an actuall sinne, wherein there is not a consent of the will.

On the one side, it is shamefull to thinke that so grievous a sinne should passe without some exemplary cen­sure, and that so foule blood should be propagated to succeeding ages, for want of the timely intervention of a [Page 417] vindicative authority; but on the o­ther side, it would be well considered what miserable inconveniences, yea mischeifes would follow upon so late a discoverie; First all honest hearts are put into a just, but unprofitable horrour, to thinke that sueh a flagiti­ous wickednesse could be committed; Then the Mother who had rinced her soule, with a fountaine of teares, for so hatefull a mis-carriage, and recon­ciled her selfe to that God, who was the onely witnesse of her sin, should be so late exposed to the unseasonable shame of that world, which never was privie to her offence.

As for the young couple thus pro­digiously conjoyned, how could they choose, upon the too late notice of their so deplorable condition, but run mad for anguish of soule, and weare out the rest of their dayes in shame, and sorrow; And for the children borne to them in so detest­able [Page 418] a wedlock, whom they had for­merly beheld with complacence, and comfort, as the sweet pledges of their conjugall love, how must they now needs looke upon them, as the living monuments of their ignominie; and loath them as the most basely-begot­ten impes of a worse then bestiall co­pulation. And when riper age should bring that unhappy off-spring forth into the world, how should they be every where pointed at, and hooted after; as some strange aberrations of nature; all which are avoyded by this seorecy.

But if on the other side you shall reply that this one evill is more, then equivalent to all these; that in the meane time, these parties live in a continuall Incest, and traduce it to following generations; I must put you in minde, to distinguish, betwixt the state of Incest, and the Sin of In­cest; It is true, they live in a state of [Page 419] Incest, but, from the sin of Incest they are excused by an ignorance, altoge­ther invincible; an ignorance both of the originall fact, and of their mu­tual relations; for it is to be supposed, that had they had the least intimation of the naturall interest of Father, and daughter, they would with much in­dignation have defied so foule a com­mixture, which even brute creatures (if we may beleeve histories) have by the instinct of nature abominated, and, upon after knowledge, re­venged.

And if any light of knowledge should have broken forth unto the parties, of that condition, wherein they stood, then to have continued under that state of Incest, but an houre, had beene damnably sinfull; now all those inevitable consequen­ces of shame and horrour must have beene sleighted and forgotten, and must have shut up in a sodaine disso­lution.

[Page 420] But, as there are many degrees of Incest; and the sin is so much more, or lesse haynous, as the parties are nearer, or more remote; I perceive the case intimated by you, concernes a lower ranke of incestuous copula­tion; namely, an incest arising from a mans carnall knowledge of a per­son too neare in blood unto her, whom he afterwards marrieth; The fact knowne onely by one, who now doubts whether he be not bound to reveale it: And why not sooner, when so faulty a match might have beene prevented? Why so late, when the remedy intended, would be as noxious as the disease? Why at all, when there is no necessity, or use of the revelation? This question starts another more universall, how farre we may, or ought to make known the secret sin of another? Doubtlesse to prevent some enormious act, which may follow upon our silence; or up­on [Page 421] the urging of lawfull authority, when we are called to give evidence concerning a fact questioned; Or to antevert some great danger to the publique, to our selves, to our friend, we may, and must disclose our know­ledge of a close wickednesse; Or if the act be so haynously flagitious, and redounding to so high dishonour of God, as that our conscience tels us we shall participate of this sinne in con­cealing it; our holy zeale shall herein beare us out in a just accusation; al­though in this case, heed must be taken, that our single crimination may be so carried and made good by circumstances, that it draw us not in­to the perill of a sclander; But, with­out these, I cannot see, that the re­vealing of a secret sinne, can be con­strued any otherwise, than an act of Detraction; than which, nothing can be more odious and prejudiciall to humane society: We have learn'd [Page 422] from Aquinas that there are eight wayes of this hatefull practice; whereof foure are direct; the raysing of a false crime, the amplifying of a true crime; the disclosing of a crime secret, and the sinister construction of anothers fact. To these, I must adde, that even where the act is such as challengeth a revelation, the time may be unseasonable, and past the date; You know that the notice of treason, if too long smothered, draws the concealer into danger: and in this case, though there be no perill in the silence, yet there may be injurie: Shortly, this sin, if ever, should have been so early made known to the par­ty concerned, as might have preven­ted the making up of a match secret­ly sinfull; and have convinced the agent of a foule illegality, whereof he was ignorant. But now thus over­late, would break out to an unprofi­table vexation; since this crime which [Page 423] might justly have hindred the marri­age from being contracted, ought not to have the force, after so long intermission, and successe of an inter­venient wedlock, to dissolve it. The time was, when the Minister in a so­lemne preconization, called you ei­ther then to speake, or for ever after to hold your peace: had you then spo­ken it might have beene construed as Zeale, now, not to hold your peace, will be interpreted no better then malice.

AN ADVERTISEMENT TO THE READER.

I Have beene earnestly mo­ved by some judicious friends, to goe on with this subject, and to make up a compleat body of Case-Divi­nity, both practicall, specula­tive, and mixt, whereof I confesse there is great defect [Page] in our language; But I re­member the talke which Plutarch reports to have been betwixt * Crassus, and King Deiotarus, two old [...], but great undertakers. Crassus jeeres Deiotarus for laying the foundation of a new City in his decayed age; Deiotarus twits Crassus for going about, in the like age to subdue the warlike Parthians; both justly supposing our decrepit age a just disswasive from [Page] venturing upon great enter­prises; Although herein I should not want a worthy precedent, that honour of Navarre, Martinus Az­pilcueta, who at ninety years finished the fourth Edition of that his elaborate Manu­all of Cases of Conscience. But as for me, I am suffici­ently conscious of my owne inabilities for so long, and difficult a worke; Onely this, I shall willingly professe, that such scruples as I meet with in my way, I shall not [Page] allow my selfe to balk, and shall leave the answers upon the file. In the meane time, let me incite some of our ma­ny eminent Divines, whose wits are fresh, and bodies vigorous, to goe through with so usefull a worke; Many yeares are passed since my ancient and learned Col­league, Dr. Ralph Cud­worth told me that he had with much labour finished that taske, and devoted it to the presse, which yet sleeps in some private hands. It were [Page] happy if his worthy Sonne, the just heyre of his Fathers great abilities, would make strict inquiry after it, and procure it to the publique light, for the common benefit of Gods Church both in the present, and succeeding ages.

The End.

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