would think himself obliged to give him Thanks. The like the Church hath power to do after the Criminal's Tryal, where the Proof was certain, and undoubted, to bring him by the terror of her Cenfures to Repentance; but if defpifing them he will live and die obftinate, and impenitent, he will go bound to God's Tribunal, which is the last refort from the Cenfures of the Church. He also thinks he argues finely against the Jurifdiction, and Cenfures of the Clergy, as manifeftly unjust, because they fubject the fame Perfon to undergo two Tryals, and to be punish'd twice for the fame Crime. To which I anfwer, That it is not manifeftly unjust for a Man to be fubject under the fame Power, and in the fame Society to have two Tryals, or to be twice punish'd for the fame Crime, much lefs under different Powers. For First, it is neither against the Laws of Nature, or the Fundamental Rules of Policy, that in fome Cafes a Man may be subject to two Criminal, as well as to two Civil Tryals, if the Wisdom of Legiflators think fit; why should it be so abfurd in Policy for me to have the Advantage of a second, or a third Tryal for my Estate, and in fome Cafes not to have two for my Life, which is dearer to me, than my Estate? Or why is it more abfurd in it felf, that I fhould after Condemnation have a fecond Tryal for my Life (if it were part of our Conftitution) than the benefit of the Royal Pardon, when the Sovereign is convinced, that I am found Guilty, and Condemned by a partial Jury, or falfe Witnesses, or a corrupt Judge? And if it would not be abfurd to have two criminal Tryals in fome Cafes in the fame Society, it cannot be abfurd to be tryed, and punished twice in different Societies, efpecially fo different as the Church, and State, and their Punish * P. 45. ments A Man may ments are, and have been taken to be. be dishinherited by the Father for the fame Crime, for which the Magiftrate will also punish him according to Law, and the University upon Notoriety of Fact, or otherwise upon Proof, may expel a Member, or any number of Members for the fame Crimes, for which afterwards they may be Fined, Imprifoned, Pilloried, or put to Death. I hope therefore what a Father of a Family hath power to do without abfurdity, will not be an abfurd power in a Father of the Church; or that there is any more Injustice in the highest Cenfure of the University, than in that of the Church, whichin this cafe fo much refemble one another. And then as for being punish'd twice for the fame Crime, there's neither Abfurdity, nor Injuftice in that; for a Man may be condemned to stand in the Pillory, and whipt at London, and at Tork; and as to the Criminal, I defire to know, what is the difference betwixt being punish'd twice by virtue of One, or Two Tryals, I believe our Author, were it his own Cafe, would not think it much. He Reasons as much after his own manner in arguing, That if the Magiftrate may put a BiShop to Death, he may deprive him, because that includes this. If this be true, then he may deprive a Father of his Fatherhood, and diffolve his jura Sanguinis, and abfolutely, and for ever discharge his Children from their natural Duty of Obedience, because he can put him to Death, or, without excepting the Cafe of Adultery, abfolutely discharge a Husband of his Relation to his Wife founded by Divine Institution, and give her in Marriage to another Man. Nay, if this fallacious, and improper way of arguing, and fpeaking were to be admitted, then a Pagan Magistrate, a Nero, Decius, or Dioclefian, * P. 549 may may deprive a Bishop, because he may put him to Death. Nay, after this manner of arguing, when a Highway-Man kills a Bifhop, he deprives him; and then Dr. Sharp, and Cardinal Beton, Archbishop of St. Andrews, properly fpeaking, were deprived by their Murderers, becaufe, according to our Author's way of speaking, putting to Death includes Deprivation. Thus Iron is included in the making of a Sword, but did ever any fay, that becaufe a Cutler could make a Sword, he could therefore make Iron. So lofs of Memory, or Sight is included in Death, but did ever any Body fay, when he fpake properly, that he, who killed a Man deprived him of his Sight or Memory? For Privavation, or Deprivation fuppofe the Existence of the Subject, which is faid to be deprived, and not the deftruction of it, and therefore our Author spoke as little Logick, as Law, when he faid, That the Death of a Bishop included his Deprivation, and that the Magiftrate might deprive him, because he could put him to Death. Stahlins in his Fourth Maxim, Quod potest majus, potest etiam minus, would have taught him better Logick. And Bronchorftius on the Rules of Law, better Law; for when his way of arguing from the greater included in the lefs, is good in Laws, it fuppofes firft with refpect to the Power Judicial, that they should both be of the fame Cognifance, and belong to the fame Tribunal; and as to the Legislative, it fuppofes, that the lefs, as well as the greater, which, in his way of speaking, includes it, fhould be within the Sphere of their Legislation, and not exempted from it by the Laws of Nature, or the Pofitive Laws of God. For the Legislation of the Magiftrate is limited by the Laws of God, and the primary Laws * Ad L. xxi. non deber, cui plus licet, qu.d minus eft, non licere. of Nature in the Soul of Man, and when his Laws and Inftitutions are contrary to them, they are void from the beginning, and therefore if the Magiftrate have not power to deprive Bishops, as many Learned Men think, and as the ancient Chriftians believed, upon that Suppofition it will not follow, that tho' the Magiftrate may put a Bishop to Death, that therefore he can deprive him. The ancient Chriftians, though they believed the Magiftrate could put their Bishops to Natural, or Civil Death, yet they did not believe they had power to deprive them, and therefore when their Bishops were damned to the Quarries, and were thereby made fervi pana, Slaves of Punishment, they still adhered to them though they were the worst of Slaves; and when St. Chryfoftom was deprived, and banish'd by the Emperor, not only a great part of his own Flock, though great Sufferers for fo doing, but far the greatest part of Christendom adhered to him, as if he had never been deprived. They faw not the confequence from putting to Death, to Deprivation, becaufe they believed that this belonged as much by God's appointment to the Spiritual, or Ecclefiaftical, as the other did to the Temporal Power, and that as Bishops were taken in to the Sacerdotal College, and made Fellows of it by Bishops: So none but their Collegues, who took them in, could turn them out. As for Learned Men, who are as much for the Magiftrates Power, and upon much better Principles, than our Author, many fich have been, and are of Opinion, that Deprivation of Bishops doth not belong to the Civil Power. I fhall name but one, viz. Dr. Du Pin, in his Praloquium to his VIIth Differtation, de Antiqua Ecclefia difciplina, where after a fhort, but clear Difcourfe of the difference between the Ecclefiaftical, and Civil Power, he concludes, That neither Kings, nor Emperors can make, or depofe Bishops, Bishops, nor Bishops make, or depofe them. I have faid all this only to fhew the inconfequence of our Author's Argument for Deprivation of Bishops, in faying that the Magiftrate may deprive them, because he can put them to Death. What I have faid alfo fheweth his other Fallacies in the pursuit of this Argument, as where he faith, That to affirm, as Non-jurors do, that the Magistrate cannot deprive a Bishop, but by taking away his Life, is to fay he cannot remove fome part of the Punishment, which he might justly inflict, without remitting the whole. It is certain, Death puts an end to the relation betwixt the Bishop, and his Flock, because it destroys him, who is the Correlate to them, but it doth not follow from thence, that the Magiftrate hath any Authority to deprive him, any more than to Excommunicate him, or turn him out of the Church, into which he can take no body in. This fuppofes, that Deprivation of Bishops is a Punishment belonging to the Civil Magistrate, which is the Queftion; and he argues, as if a Roman of old had faid, to affirm, that a Prefident of a Province cannot banish a Man, but by banishing him out of Life, is to fay he cannot exact part of the Punishment without remitting the whole: For a Prefident of a Province, tho? he had power of Life, and Death, he had no power of Deportation by the Roman Conftitution, and as the Subordinate Magiftrate is to the Supreme, fo the Supreme is to God, he can inflict no Punishments, but fuch, as God hath given him power to inflict. † He faith farther, That 'tis not by Death only that the Magiftrate can deprive a Bishop, but by perpetual Imprisonment, or Banishment, with a Prohibition to his Subjects of Correfponding with him: To which I fay again this is ftill fuppofing what he ought to prove, that perpetual Banishment, or Imprifon * P. 54. + P. 55. ment, |