Resolvtions and decisions of divers practicall cases of conscience in continuall use amongst men very necessary for their information and direction in these evil times, in four decades / by Jos. Hall ... Hall, Joseph, 1574-1656. 1650 Approx. 402 KB of XML-encoded text transcribed from 227 1-bit group-IV TIFF page images. Text Creation Partnership, Ann Arbor, MI ; Oxford (UK) : 2006-06 (EEBO-TCP Phase 1). A45311 Wing H407 ESTC R6974 12088331 ocm 12088331 53799

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Early English books online. (EEBO-TCP ; phase 1, no. A45311) Transcribed from: (Early English Books Online ; image set 53799) Images scanned from microfilm: (Early English books, 1641-1700 ; 868:12) Resolvtions and decisions of divers practicall cases of conscience in continuall use amongst men very necessary for their information and direction in these evil times, in four decades / by Jos. Hall ... Hall, Joseph, 1574-1656. The second edition, with some additionalls. [22], 423, [6] p. Printed for N.B. : And are to be sold by R. Royston ..., London : 1650. Reproduction of original in Union Theological Seminary Library, New York. Table of contents: p. [9]-[19] "An advertisement to the reader": p. [2]-[6] at end. Attributed to Joseph Hall. cf. BM.

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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 & 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.

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 inſtance in the Prophet Daniel Dan. 10. 13. 20, 21. 12. 1.) 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; & 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

Higham near Norwich, March 29. 1650. 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 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 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 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; 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 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 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 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 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 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. 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.

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 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 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 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.

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 and legall faſhion rob the borrower.

How frequent the Exod. 22. 25. Levit. 25. 36, 37. Deut. 23. 19, 20. Nehem. 5. 7. Pſal. 15. 5. Prov. 28. 8. Ezek. 18. 8. 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 Vid. 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 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 Concil. Viennenſ. 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 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 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 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 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 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 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 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 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 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 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 Dom. Sot. de Juſtit. & Jure l. 6. quaeſt. 2. Artic. 3. tradit hoc ut Axioma Juriſconſultorum. 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 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, 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 Tull. de Offic. l. 3. informes us: with whom Cato 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, 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. 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.

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 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.

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 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 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 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 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: So the Vulgar renders Zapnath-paaneah Salvator mundi, Gen. 41. 45. and if any worthy Patriot out of a like providence, ſhall before-hand gather up the commodities of his country into a publique Magazine 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 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; 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 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 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 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 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 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 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 Leſſius l. 2. c. 17. dub. 5. 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 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 Cicer. de Offic. l. 3. Sect. 58. Canius, a Roman Knight and Orator, and one Pythius a Banker of Syracuſe. Canius comming upon occaſion of pleading 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 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 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 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 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 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 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 Aug. epiſt. 54. ad Macedon. 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 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 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, 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 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 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, 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, 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 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.

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 Ariſt. Eth. l. 2. c. 2. 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 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 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 de Jure, &c. l. 2. C. 42. dub. 6. 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 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; 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 Attilius Regulus. 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 Dom. Sot. de Jure et Juſtit. l. 5. q. 3. pag. 436., 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; 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 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 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 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 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 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 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 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 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 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.

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 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 Leſ. de. jur. &c. l. 2. c. 9. dubit. 8. Ex Antonio et Sylveſtr. &c. Leonardus Leſsius (abetting ſome ancient Caſuiſts, and pretended 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.

Ibid. paragr. ult. 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 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 Leſſ. ibid. 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 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 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 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 (Dalton p. 244. 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 army (as Orat. pro. Mil. 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 Bann. q. 64. a. 7. dub. 9. Navar. l. 2. c. 3. Leſſius l. 2. de Jure, &c. c. 9. dub. 8. 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 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 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 Rodrig. Sum. caſ. Tom. 1. cap. 73. 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 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 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, 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 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 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 Conc. Tr. Seſſ. 25. Rodriguez. Tom. 1. c. 73. de duello. Trent hath thought fit to denounce heavy ſentences, and inflict 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 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 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 Tertul. in Apol. c. 9. Tertullian comes home to the point which both Covarruvias and Leſſ. l. 2. c. 9. du. 10. Leſsius urge to this purpoſe: Homicidii feſtinatio eſt prohibere naſci; It is but an haſtening of murder 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 Ne ſe pollueret, mavit ipſe mori. Ex Politiano Gerard. Voſſ. de orig. & progreſ. Idol. l. 3. c. 18. 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.

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 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 Exod. 21. 22. The Septuagint ſeem to have taken 〈 in non-Latin alphabet 〉 (death) for 〈 in non-Latin alphabet 〉 a diminutive of 〈 in non-Latin alphabet 〉 a man: as Cornel. à Lapid. probably gueſſes.: 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 Caſtal. Si pernicies non fucrit: Ours, if no miſchief follow. 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: Cornel. a Lap. in Exod. 21. Cornelius à Lapide taking it expreſly of the mothers 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, Vel. ut alii, Quorum animae certiſſimè in limbum deſcendunt ſine Baptiſmo. Mart. Alphonſ. Viv. Explan. Bullae de abort. that the child dying without Baptiſme, is liable to eternall damnation; which wofull danger therefore the mother ought 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.

Rodr. Sum. To. 1. ca. 5. de Abort. 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 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 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 Vid. Rodrig. ubi ſupra. ſucceſſor of his, Gregory 14; who finding the 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 Conſtit. Greg. 14. Quae dicit quod quivis Confeſſor approbatus ab Ordinario poteſt abſolvere à peccato abortus. Ibid. 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 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 Murt. Alphonſ. Vivald. expli. Bull. Cruc. 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 an offender, what may he doe? The common opinion of Caſuiſts is peremptory; Qui retinetur in carcere propter aliquod delictum, &c. Rodrig. Sum. cap. 40. 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 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 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 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, 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 Val. Max. l. 5. Dom. Sot. de Jure, &c. l. 5. g. 5. 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 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 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 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 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 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 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 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 Silveſtr. V. Correct. Dom. Sot. l. 5. de Jure, q. 4. Leſſ. de Judice l. 2. c. 29. 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 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 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 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 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 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 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 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 Dom. à Sot. de Jure, &c. l. 5. qu. 4. 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 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 Soto Etenim quod homo qui officio ſuo vivit debeat tantam jacturam facere, durum creditu eſt. Dom. Sot. ubi ſupra. , 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, In cauſis civilibus et minus criminalibus. 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.

The reaſons pretended are as poor as the opinion; Leſſ. de Jure, &c. l. 2. de Judice Dub. 10. Quia reſp. habeat authoritatem diſponendi, &c. 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? 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?

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 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 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; 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; 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.

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, 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.

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 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 Prov. 11. 13. 20. 19. 26. 20. 26. 2. Proverbs, inveighing ſharply (as if 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 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 Rodriguez. Tract. Ordinis Judicialis. cap. 10.) 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 Sotus l. 5. q. 6. de Juſti. 11. Rei, Art. 1. 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 queſtioned; A practiſe, which I cannot blame Leſ. de jur. l. 2. cap. 13. dub. 3a. 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, 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, 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, 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 Mart. Azpil. Navar. enchirid. cap. 25. num 38. 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 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 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 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 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, 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 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; 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 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.

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 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 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 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 Leſſ. de Jure l. 2. c. 9. dub. 6. 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 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 〈1 page duplicate〉 〈1 page duplicate〉 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 〈 in non-Latin alphabet 〉 . L. Verulam. Advanc. of Learning. 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.

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 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, 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 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 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 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 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 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 Navarr. Enchir. cap. 11. n. 28. 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 Leſſ. l. 2. De māgia cap. 44. dub. 6. 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 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 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.

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: Theſaurus Exorciſmorum; atque Conjurationum terribilium, &c. Tract. Diſperſio daemonum. Fratris Valcrii Polydori Patavini. Ord. Minorum Conventualium. 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 Tit. applicabile. 3. Rutae in charta benedicta ſuper ſeportaudae & olfaciendae, ad omnem invaſionem diabolicam repellendam.. 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, 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.

Applicabile. 15. Tit. Profumigatio borriblis, ejuſque vulgata benedictio. Adde to this, the horrible fumigation to this purpoſe as it followes. I conjure thee ô thou creature of 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 Leſſ. ubi ſupra Dubit. 5a. Leſsius) receives the force from the prayers of the Church, by the meanes whereof it comes to 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 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, 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, 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 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, 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 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 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 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 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 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 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. 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, 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; 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 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 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 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 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.) 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, 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 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: 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, 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, 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 of S. Thomas of Bromiard. ſum. praedict. 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 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 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 〈1 page duplicate〉 〈1 page duplicate〉 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 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 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 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, are Relat. of the third confer. p. 6. 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 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 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 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 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 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 know any ſuch, as you love God, and your ſoules, keepe aloof from them, as from the peſtilence. Epiphan. haereſ. l. 1. 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: 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 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, 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; 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 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 the learned and judicious Chancellour of Paris Tract. de Vit. ſpec. lect. 4. Cit. Dom. à Soto ut infra., 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 Gerſonis poſitio parum diſtat ab haereſi Lutherana. Dominic. à Soto De Jure, &c. l. 1. qu. 6. 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 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 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 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 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 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 Ten hand breadths long, five broad, ſeven fingers high. 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, 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 H. Ainſworth in Lev. 24. 9. ex Maimonide. 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.

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 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 〈 in non-Latin alphabet 〉 , &c. Clem. Al. Stro. 1. 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, that he therefore grew up to ſo vaſt an eſtate, becauſe he ſtill devoted the tithe of his fruits to Hercules: And Plin. l. 12. Bongus de num. Myſter. num. 10. 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 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, 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 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 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; 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 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 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 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 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: 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 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 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 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 Greg. cap. Pervenerabilem: & cap. Si non. 23. q. 4. Juſtum ſanctumque eſſe bellum quod infidelibus à Chriſtianis infertur, ut eis imperio ſubditis praedicari poſſit Chriſti Evangelium, ne ſi imperio ſubditi non ſint, praedicationi & converſioni corum qui crediderint impedimento eſſe poſſint. Gregory; Juſtum 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 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 by that loud Bull of Decret. & indultum Alex. 6. ſuper expeditione, &c. Populos in ejuſmodi inſulis & terris degentes ad Chriſtianam religionem indulcere velitis & debeatis, &c. 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 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.

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 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 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 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 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.

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.; 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 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 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 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.

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 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 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; 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 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; 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 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 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 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 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 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 ( 〈 in non-Latin alphabet 〉 ) 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 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: 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 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 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 Eccleſ. 18. 1. 〈 in non-Latin alphabet 〉 ., 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 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 〈 in non-Latin alphabet 〉 . communiler. Montan., 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 Eſtii Annotas. in bocum. 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 (by the miſtaking of ſome ancients) to ſay, Prov. 8. 22. 〈 in non-Latin alphabet 〉 . 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 Vulg. Tra. Eſa. 45. 11. Eſay 45. 11. 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 Ecclus. 25. 9. Bleſſed is he that preaches a word unheard of. words of 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, 〈 in non-Latin alphabet 〉 :) 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 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 received the Sop, he went immediately out; Erat autem ipſe nox. 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 Pſal. 91. 6. Bern. Ser. 33. 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 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 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 〈 in non-Latin alphabet 〉 The word in the originall is 〈 in non-Latin alphabet 〉 which every man knowes to be uſed ordinarily to ſignifie either Principes, or Sacerdotes, as Exod. 2. 16.. 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 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 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 Where doubtleſſe 〈 in non-Latin alphabet 〉 was miſtaken for 〈 in non-Latin alphabet 〉 which title is ſometimes given to the Angels. 1 King. 11. 5. 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 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 Quinque milla, for mille & quinque, five thouſand, for a thouſand and five. 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. † Cecinit for Cicidit.

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, The word is 〈 in non-Latin alphabet 〉 numeros. 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. 〈 in non-Latin alphabet 〉 . Suid. 〈 in non-Latin alphabet 〉 . Rev. 15. 6., 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 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 〈 in non-Latin alphabet 〉 pro 〈 in non-Latin alphabet 〉 . 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.

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 〈 in non-Latin alphabet 〉 Jeſus is miſ-read, for 〈 in non-Latin alphabet 〉 : 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.

In theſe and many more (for I meant to give you but an aſſay) the 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. 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 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 Thom. è Sanchez. Societ. Jeſ. Theol. Dematrimonio. Sanchez the Jeſuite hath ſtuffed and in the L. 2. c. De Patribus qui &c. law civil there is the like permiſſion, although under certaine conditions; and particularly in an utter exigency, Victus cauſa; To the latter whereof, ſome Covarruv: l 3. var. c. 14. ex Accurſio & aliis. Leſ.l. 2. c. 5. D b. 4. 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 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 Num. 30. 3, 4, 5, 6. 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 Leſſ. de Jure l. 2. c. 40. dub. 14. 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.

And although thoſe Caſuiſts doe ſufficiently dote upon their Navar. enchir. 4. prae. c. 14. h. 14. Filius qui parentibus in extrema neceſſitate conſtitu is &c. 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.

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 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 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 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.

But though ſuch marriages without, or againſt conſent, be not lawfully made; yet being once made; they are valid. Matrimonia eſſe irrita, &c. Inſtit. de nuptiis et, ff. de jure nuptiarum. Ita & Evariſt. in conſtit. edita. Anno C. 100. 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, 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 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 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 found in 〈 in non-Latin alphabet 〉 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 lawfull to divorce a wife: and flatly condemning by the like anſwer that [ 〈 in non-Latin alphabet 〉 ] (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.)

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 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 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 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 Deut. 24. 1. 〈 in non-Latin alphabet 〉 . 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 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 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 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 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 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 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 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: Maimon. Treat. of Divorce. 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 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 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.

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 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: So alſo 1 Cor. 7. 39. The woman (ſaith the 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 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 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, [ 〈 in non-Latin alphabet 〉 ] let her 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, that in the caſe of divorce it is lawfull for the innocent perſon to marry; But for that I find the Decrecing to take bonds of the perſons divorced to remaine ſingle. Can. & Conſtit. c. 107. 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, 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 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; 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 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 not your children to wrath, (or (as the 〈 in non-Latin alphabet 〉 , Eph. 6. 4. 〈 in non-Latin alphabet 〉 , Coloſ. 3. 2. 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 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, 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 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 à Lapide Cor. à Lap. in locum. (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 intimated in that inhibition: Doctor Will. Syno. Controver. 15. de. Mart. q. 3. 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 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 Greg. reſp. ad Interrog. Auguſtini. q. 6., (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 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 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 Cic. orat. pro Cluentio. 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 Hotoman de-grad. cognat. Laurent. Kirchovius profeſ. Roſtoch. in conſil. Matrimon. 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. Ambr. ep. ad Paternum. 66. Ambroſes inſtigation; who then ſharply inveighed againſt theſe matches in a vehement 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, 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 Hodie ceſſat fraternitas & aliqua ex parte compaternitas per concilium Trident. Seſſ. 24. Navar. c. 22. n. 27. 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 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 de-vita matrimon. p. 6. citante Kirchovio, ut ſupra. Hotoman yet higher, pium & Chriſtianum eſſe, quod duarum 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 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 Exod. 22. 16. Levit. 19. 20. Deut. 20. 7. Deut. 22. 25. 23. 28. Jer. 2. 2., who is the author and inſtitutor of Marriage made a difference 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 Compare Mat. 1. 18. with Deut. 22. 13. 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. † Magdeburg. Cent. 2. de Conjugio. 2 Cor. 11. 2. 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 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 Concil. Anciran. can. 24. 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 Concil. Eliv. c. 45., 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. What ſhould I trouble you with the Decree of Luitbrand in Syric. 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, 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 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 in minority (allowing Aetas legitimè contrahendi matrimonium, eſt in muſculis 14 annos, in foeminis 12; Spouſalibus autom contrahendis, ſeptem in utriſque. Navar. c. 22. n. 28. 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 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 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 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 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 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: Maimon. Shicard. de Reg. 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. 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 thoughts, their Councell of Concil Trid. Seſſ. 24. 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 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 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 Alex. ab. Alex. l. 3. Gen. dier. c. 7. Cod. l. 2. tit. 12.; And by the civill Lawes, a woman marrying within a yeare after her husbands death is counted infamous.

It was no ſhort time that As appeares by comparing of Gen. 23. 2. with 25. 1. 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 〈 in non-Latin alphabet 〉 Gen 23. 2. 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, 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: 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 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 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) 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 Concil. Trident. Seſſ. 24. Decret. de Reformat. matrimon. Bannes before matrimony, 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 Conſtit. 62, 63, 101, 102, 103, 104. 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 Concil. Trid. ubi ſupra. 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 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 Conſtit. and Canons ut ſupra, Can. 101, 102, 103., 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 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 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 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 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 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 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 Martin Alphonſ. Vivald. Candelab. aureum. de matrim. & partic. de Conſanguin. 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 the Popes power to diſpenſe with ſo foule a matrimony; Againſt whom upon better reaſon, Scot. m. 4. d. 40. Sot. ibid. q. un. art. 4. 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.

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 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 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 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 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 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.

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 In Argumentum trati nequeunt, quae propter neceſſitatem ſunt conceſſa. 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; 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, 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 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 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:

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 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; 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 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 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. 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, 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, 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 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; 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 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, 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 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, 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 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 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 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, 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 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 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, 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 Conſil. Matrimonial. Germanor. Conſil. 5.; 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 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 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 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 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 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 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 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.

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 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 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 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 in our language; But I remember the talke which Plutarch reports to have been betwixt Plut in vita Craſſi. 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 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 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 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.