I Received yours, and am heartily sorry to hear of the seve­rity used and intended against Protestant Dissenters, for their Nonconformity; because I am throughly perswaded many of them are sincere and harmless in their Dissent, and give as good Testimony of their being so, as we generally do of our sincerity in our Dissent from Popery; however cannot be con­demned to Penalties without Infringment of our Protestant Prin­ciples: But since some of our Ecclesiastical Rulers and Judges are not of this mind, but requires by publick charge that all Persons Aged above Sixteen Years, should take the Sacrament now at Easter, or to be presented by the Churchwardens or Mi­nister of the place, to be proceeded against by Excommunica­tion, with all its grievous Concomitants and Consequents, where­of perpetual Imprisonment is now in the least. You desire my advice; What you, being sworn Church-warden, should do in this case? You are very loath to have so great a hand in the Ruin of your honest Neighbours for their Conscience towards God, and on the other side you must be true to that Duty, which you have obliged your self before God to perform. You know (my Friend) I am not one of the Learned in the Common nor Civil Laws, and therefore can only tell you what course my self a private Person, willing to keep a good Conscience towards God and to­wards Men, would do in such a case. And you are pleased to tell me, you therefore desire my advise, because that I being of like condition, and in like circumstances with your self, am more likely to give advice fit for you than they whose education has enured their minds to Subtilties and Quirks of Law. I can easily grant the Reason you give of your Choice to be good, but I cannot allow your application of it to me; for though I am re­solved in the power of God to be honest, yet there is another quality wanting to make me a fit adviser in so nice a case, to wit, an understanding well exercised in discerning between good and evil, and things indifferent: But I may remember, you only de­sire to know my opinion, you do not oblige your self to follow it, [Page 4]neither would I have you to do so, without better Judgments then I can pretend to, except you find my Reasons to be convincing.

In the first place I am sorry you have taken the Church-wardens Oath, which obliges you; to Execute the Office of a Church-war­den in your Parish for the ensuing Year, according to his Majesties Laws Ecclesiastical, for its a difficulty scarcely to be overcome by the most Skilful, to resolve what Ecclesiastical Laws are in force, what not, therefore beyond your capacity to execute according to what you know not, and give me leave to mind you by the way, that Reason, Equity, and Religion requires, that we should never proceed to imputation of Crimes or Executions of Penal­ties in doubtful Cases. In matters of favour and benefit we may be liberal, but in matters of hurt and damage to our Neighbour, we should be so far from any thing of that nature in a contro­verted point, that we should not go to the utmost the Law al­lows, though in a most clear Case. Now if the Statute of 1 Edw. 6. chap. 2. be revived by Repeal of that Statute which Repealed it, the Ecelesiastical Persons ought to use the Kings Name and Seal to their Processes, and their holding Courts in their own Names is contrary to Law. However, it is at least doubtful, whether they have any legal Power, and likewise whether any of their Cannons have any force of Law; If then you make pre­sentments to those Courts, whereby your Neighbour is vexed and indamaged, you know not but you may therein be injurous to your Neighbour without legal Authority, which no wife and con­scientious Man will venture.

But, Secondly. I conceive that a Man chosen Church-warden, may lawfully refuse that Oath, as being contrary to Law, as may appear by a Statute made in the Thirteenth of this King, chap. 2. and incited in the prohibition for Waterfield, where it is enacted that it shall not be lawful for any Arch-Bishop, Bishop, Vicar, Gene­ral Chancellour, Commissary, or any other Spiritual or Ecclesiastical Judge, Officer, or Minister, or any other Person having or exercising Spiritual or Ecclesiastical Jurisdiction, to Tender, Offer, or Admini­ster to any Person whatsoever, the Oath usually called the Oath ex Officio, or any other Oath whereby such Persons to whom the same is Tendered or Administred, may be charged or compelled to confess, or accuse, or purge him or her self of any criminal matter or thing where­by he or she may be liable to Consures or Punishments. But I am [Page 5]perswaded that no Man that makes Conscience of an Oath, but will find himself obliged by the Laws Ecclesiastical (sup­posing all those to be in force which the Official says are in force) burdened and compelled to confess, or accuse himself of some criminal matter or thing, and therefore such Oath ought not to be Administred to him. However, having taken that Oath, you must endeavour to perform it as well as you can without breach of the Laws of God, or Laws of the Land, which latter must always give place to the former, and by them be made new or interpreted.

In the next place as to the business of presenting those of above Sixteen Years of Age, that come not to the Sacrament at Easter. First, I say it is contrary to Christianity and all civility of Neighbourhood, to present a Man as a Criminal, so to expose him to so dreadful a Sentence as Excommunica­tion, and all Calamities that attend it, without first discour­sing their Neighbour to know what he can say for himself in Vindication, for in this Case the presentment of one or two Church-wardens, is of as much force, and more dangerous consequence than the presentment of Twelve or more of the most substantial Men of the County, in civil Cases, and therefore the least that the Church-warden can do, is to hear what his Neighbour can say for himself, before he put him into so much trouble and danger, as such an accusation amounts to. For there may be divers lawful and reasonable Excuses of a Mans not coming to Church such a Month, or not coming to the Communion at Easter; as for instance, suppose a Man be Sick and not able to come, or have had business abroad for One, Two, or Three Months together at the time of Easter, are not these and such like lawful Excuses? I remember the Statute of Eliz. 23. chap. 1. (to retain the Queens Majesties Subjects in their due obedience) made against Papists, (but now put in use against Protestants) says, That every Person above the Age of Sixteen Years, which shall not repair to some Church or Chappel, or usual place of Common-Prayer, but forbearing the same contrary to the Tenor of a Statute made in the First Year of Her Majesties Reign, for Uniformity of Common-Prayer, &c. shall forfeit, &c. now that Statute re­ferred to, has this exception in it, (viz.) Having no lawful or [Page 6]reasonable excuse to be absent, which plainly shews there may be lawful or reasonable excuse of being absent from Church for a Week or Month, and consequently of not taking the Sacrament Administred at that time, therefore I conclude the Church-warden or other Officers, who present any of his Neighbours as guilty of such a Crime before he have heard what he can say for himself, is Unjust, Unchristian, and Un­neighbourly; Unjust, because the light of Nature will not permit it that any should be condemned unheard; Unchri­stian, because the Law of Christ commands us not to Judge least we be Judged, and consequently Unneighbourly, because somewhat more of civility ought to be shewed to Christians that are of the same Vicinage, then to Men as Men, or to Christians barely as Christians.

Perhaps you will say, it is sufficient for you to ground an Information or Presentment upon, that in Fact a Man did not come to his Parish Church, or did not take the Sacrament there at Easter, and that if he have any lawful or reasonable excuse, he must urge it upon his Trial before the Judge or Commissary. But Sir, would you be so dealt with? Be charged with a Crime that has heavy Penalties attending to it? Be put to the trouble and expence in Defending your self in a Court where some Men love none more than their own Souls? When if their Officer would but take the pains to speak with you, you would easily Vindicate your self from that charge? Besides, it is to be considered that all Ju­ries, Grand Juries, and others, are chosen out of the Neighbourhood, as being therefore supposed to know what may be known of the Innocency or Guiltiness of a Person they Accuse or Condemn, and they are Twelve at least, sometimes Twenty One of a Grand Inquest, that if some be Ignorant, others may be knowing in the Matter and Person brought before them, and they must be honest and free, and legal Men, such as the Law in every circumstance requires, if there be but One in Twelve, otherwise their proceedings will be null and void.

[Page 7] But Sir, Your Presentment, as I have said, hath the validity of the Presentment of a full Grand In­quest upon Oath; Nay more, (except when the Cause of Recusances come before a Grand Inquest) for upon your Presentment the Bishop or his Official concludes your Neighbour Guilty, and will perhaps not admit of his lawful excuses, not as in other Ca­ses, bring Witnesses face to face to prove him Guilty; for you have already convicted him by your Present­ment; again, in numerous Parishes, such as you have about London, it is impossible for you to know whe­ther every one did Communicate, and therefore you can only say, that so far as you know such a Man or such a Woman did not Communicate, and that shall create your Neighbour no small vexation, though at length he proves that he did Communicate in his own Parish, or in some other Church or allowed Chappel, and that you are mistaken in your sworn Presentments.

But you will now ask me, is it my place to Judge what are lawful or reasonable excuses, must not I leave that to the Ecclesiastical Court, whose Duty it is to determine such matters.

I answer, I have already shewed you that in your Presentment, you are presently both Accuser, Wit­ness, and Jury; So that the Proceedings in that Court are of the Nature of a Plea, after Con­viction, as is in another Court brought against the Sentence ready to be passed, for as in a Civil Court the Party found Guilty, is asked what he has to say, why Judgment of Execution should not [Page 8]pass upon him? So here the Spiritual Iudge does but in effect asle a Man what he has to say, why the Penalties of such a Crime should not be Executed upon him? And since you are in a real Sence a Judge, all the Reason of Man­kind will oblige you not only to hear, but to determine concerning the circumstances of the Action you are to Judge.

Is it reasonable or consistant with the Liborties of English Men, that a Man should be liable to suffer so great Vexation and Dammage, as the Presentment of the Church-warden puts him to, and the Church-warden not at liberty to Judge of his reasonable Defence against that Vexation? When in a Civil Court for a Crime or Trespass, to the value of a Groat, a Man shall have First Twelve at least of his Sworn Neighbours to pass Judgment upon him; every one of which must be satisfied the Accused Party has no reasonable excuse, that is, every one must be satisfied that there is sufficient Evidence of his Guilt by their own Knowledge, or credible Witnesses, or Oath, and after that the Accused Party and the Wit­nesses must be heard together, to the satisfaction of Twelve Jurors more, who must every one agree to the Condemnation or else he shall be cleared, but in the Spiritual way of preceending the business of the First Twelve or Grand Jury, per­haps of Twenty Three, and of Witnesses, is all done by the Church-warden, that's most manifest, and the Verdict of the other Twelve, or Pettit Jury is also given by the Church-war­den; [Page 9]and the Spiritual Judge has no more to do but to pass Sentence, as the Civil Judg doth when the Verdict is brought in. For his admonish­ing Men thrice in a Breath, is in it self a Penal Sentence, being but a Prologue to Excommunication and Imprisonment, espe­cially when things impossible are required; but that's impossible, which a man cannot do without Sin. The vast difference between those two ways of Proceeding, shews, that the one is of Rome, the other of England. But must the Church-warden do the Work of two Juries toward the Ruine of a Man and his Family, and not judge of a man's rea­sonable Defence against his Sentence?

Thirdly, If the Church-warden must not judge of lawful or rea­sonable Excuses, but must present Men, merely because of Omission to take the Sacrament at Easter, then how comes it to pass they can dispence with their Obligation of presenting those that notoriously offend in other matters, and even themselves for the most part, if not all of them, to which Presentment they are equally obliged? For by the 109. Canon, supposing them in Force (which is a great Question, or rather out of Question, not being confirmed by any Act of Parliament) they are obliged to present those that offend their Brethren by manifest Drunkenness, Swearing, Ʋsury, or any other Tur­pitude or Wickedness. By the Statute of 1 Eliz. ch. 2. All persons are obliged to endeavour themselves to resort to their Parish Church, or some other place, having no lawful or reasonable Excuse to be absent up­on every Sunday and Holyday. Now I perswade my self, that in or­dinary, there are but few People, or Church wardens themselves that are not guilty of the Breach of this Statute most Holydays in the Year: And the Church-wardens know it perfectly: How is it then that they do not present them, except that they either know or presume they have some lawful or reasonable Excuse to be absent, and if they take upon them to judge of reasonable Excuses in this Case, so as to excuse, themselves from the Breach of their Oath, why not in other Cases also, and particularly in the case of Com­munion at Easter, wherein they certainly know there may be the like Excuses? And the same Argument will hold in the case of those that come not to Church, &c. in a Month, contrary to the Tenour of this Statute, who are punishable by the Forfeiture of 20 l. a Month, by the Statute of 23 of Eliz. ch. 1. made against Papists.

[Page 10] Fourthly, This Statute of 1 Eliz. makes it not absolutely crimi­nal, Not to resort to their Parish, or some other Church, but not to en­deavour themselves to resort, &c. Now a man may endeavour to re­sort, &c. tho' he do not perform, being hindered by some lawful or reasonable Lett; Nay, I am well assured, that ma­ny who resort not to their Pa­rish Church, &c. do endeavour themselves to resort, more by far than those that do: They read, confer; study and pray more for Satisfaction in the Lawfulness of it. so that a Church-warden that presents a Man for not coming to his Parish Church for a Holyday or a Month, without con­sulting with him whether he had any reaso­nable Excuse of being absent, or whether he was not at some other Church or Chap­pel; and without judging of reasonable Letts, is injurious to his Neighbour beyond the Statute; and if he may not judge of lawful and reasonable Excuses; but must present a man notwithstanding, he makes a false. Presentment, because he does not know whether it be true or no that a man did not endea­vour to resort to Church, It may be false; and if it be true, it's more than he knows, tho' upon Oath he pretends to know it; so commits Perjury: He swears neither in Truth nor Judgment, nor Righteousness, Jer. 4, 2. And why may not a lawful or reasonable Lett come in a Mans way at Easter, as well as at another time? Which if it were so, the Church-warden ought not to conclude him guilty of a wilful omission and therefore ought not to present him.

Fifthly, In crimes there is the matter or fact, and the manner or Circumstances of that fact, the matter or fact is for the most part neither good nor evil, but according to Circumstances which make it the one or the other. So under the Law of Moses, God comman­ded to rest on the Sabbath day, but if a man had fallen into a Ditch on the Sabbath it was evil to rest, and not Labour to lift him out, for it was lawful to do so for an Ox or a Sheep, so in our Law, one may kill a Man, and be Innocent when he does it in his own Neces­sary defence; but if in malice he is guilty of Murder: So to take a Mans Sword from him on the High-way is robbery, if it be done with a Fellonious intent; but to keep a Man from doing himself and others a mischief it is good and lawful: In like manner, he that will present a Man to a Court to be punisht as a prophane Of­fender, (as the Bishop of London speaks in his Order) for not com­ing to Church and receiving the Sacrament at Easter, ought first to be assur'd that he did it with a prophane Mind, and had no law­ful or reasonable Lett to excuse him.

[Page 11] Having now, my Friend, shewed you that your Presentment has the force of a Verdict, and the refore you ought to hear what your Neighbour has to say for himself before you bring in the Verdict of your Presentment to the spiritual Judg for him to pass Sentence up­on him: Having also clearly proved (as I suppose) that you are to judge of lawful and reasonable Excuses, and that you do it most frequently in other cases: It remains now that I say something of lawful and reasonable Excuses: The first Rule I shall lay down to discern them by shall be general, even that general Rule of our Sa­viour, Whatsoever ye would that men should do unto you, do ye even so unto them. If your Neighbour give as good Testimony of his Sin­cerity in the Christian Religion as you your self, or at least no Cause to the contrary, that which you would have to be judged a reasonable excuse in your own case, that ought you to think in his case. I describe your Neighbour here to be in Appearance an ho­nest and true man, because you are to believe what he says in his own Defence; which if he were a man of ill Fame, you could not reasonably do; but if a man be of as good Credit as your self, or you hear nothing against him, I see not how you can avoid giving the same credit to him you would have another give to your self. (This is to be understood of such causes, as, admit not of outward Evidence besides a man's own Testimony) How otherwise do you love your Neighbour as your self? which the Ap. James says is the Royal Law according to the Scriptures; and Christian Charity is that which believeth all things, hopeth all things; to wit, which he hath no good Grounds to disbelieve and doubt.

I prosume then that you and every Church-warden will judge, that Sickness of the Party, or any Relation, whom he or she can­not in duty Wave without great danger, or also journeying in for­reinparts about a Mans necessary Occasions, or in our own Coun­trey about sudden business that will not admit of delay, are reasona­ble excuses for not presenting ones self and communicating at his Pa­rish-Church at Easter; and there may be many other excuses of the same Nature, which I will not Trouble you to enumerate: But from hence I assume, If the manifest danger of ones Health, or the very probable damage of a Mans worldly Estate, Credit or Liberty, be reasonable excuses to be admitted by the Church-warden; how much more reasonable and to be allowed is that excuse of sinning against God by doing that which he cannot do in Faith or with a perswasion of its lawfulness when divine Authority says, Whatsoever [Page 12]is not of Faith is Sin? For it were better for a Man to lose all his Estate, his Credit, his Liberty, yea and his Life too then sin against God. But he that judgeth any thing required of him to be sinful and doth it, he certainly sins: For he that in the Apostles time eat of those meats, which were lawful to be eaten, judging them to be forbidden, or even doubting whether they were lawful, that Man was guilty of sin and liable to be damn'd for the same. He that doubteth is damened if be eat, because: he eateth not of Faith, Saith the Apostle Paul, Rom. 14.23. I will grant that it may so fall out that a Man may be so minded that he sins both ways, whether he do that which is required or forbear it; but that is, when he his abso­lutely oblig'd by God to do it, and he through an Ignorant or ill inform'd conscience thinks it unlawful; but in the case we discourse of, our Bishops and Ministers acknowledge that in the things doub­ted of, by those that do not frequent their Parish Churches there is no obscure comand of God why they should be done, they be­come a Duty (say they) by Humane Authority, which may be with-drawn, and being with-drawn they are no longer any Mans Duty, now how it comes to be in the power of Christians, to im­poser upon their Fullow Christians, to do those things which no Law of God or Christ oblige them to, and which their Fellow-Christians account unlawful or doubt of; and to punish them for Disobedience, when their Obediance would be a sin against God, I leave you to determin. But if neither you, nor your Minister, nor yet your Bishop can remove the doubts of these Ghristians, and if they behave themselves as Christians in Obedience to all things that Christ requireth of them, in Profession of Christian Faith, in Christi­an Worship and Prayer, in the Celebration of the Lords Supper as they understand Christ to have commanded it, &c. If you will not admit these People to be reasonably excus'd of their absence from their Parish Church, I doubt Christ will not exchse you of injustice and uncharitableness at the great day: I confess the Prosecution of these People with penalties is not so great a Sin as the Apostle Paul caused Christians to commit when his Name was Saul, before his Conversion; for he compell'd them to Blaspheme; and sinning a­gainst ones own conscience in a matter of Circumstance is not so bad as blaspheming of Christ against ones Conscience, but the same Apo­stle says in a less case, When ye sin so against the Brethren and wound their weak Conseiences ye Sin against Christ. 1. Cor. 8, 12. now that which you Brother cannot do without Sin, and that which you [Page 13]cannot prosecute him for not doing without Sin, should (me thinks) be a reasonible excuse both for him and you.

Obj. You will perhaps urge against what I have said, that there is no other way, but this of presenting them for not coming to Church, to convict Papists of Recusancy; and that they also as well as Protestants may escape upon the pretence of Conscience, so the Laws in these cases provided, be made of no effect.

Ans. To which I answer, that the case of Protestant Dissenters and of Papists is not the same, but far different: For the reason why Papists do not communicate with Protestants in Parish Chur­ches is, Their acknowledgment of a foreign Power and Authority Superior to that of the King and the Laws of the Land, namely, the Authority of the Pope of Rome, who is the declared Enemy of the King, and the People being Protestants whence it is that their not coming to Church is an effect and indication of that acknowledg­ment, and against them were the Statutes of the 1st. and 23d. of Queen Elizabeth made, the last whereof is: An Act to retain the Queen Majesties Subjects in their due Obedience, and the Presace gives this as the reason of making that Act, viz. That diverse all disposed Persons have practised, by other means than by Bulls to withdraw diverse the Queens Majesties Subjects from their natural Obedience to her Majesty, to obey the usurped Authority of Rome and in respect of the same, to per­swade great numbers to withdraw their due Obedience to her Majesties Laws established for the due Service of Almighty God.

For it is observed by the Lord Coke in his charge at Norwich, and by others, that not any Papists, during the first ten years of that Queens Reign, did refuse to come to Church; that Cornwal­lis, Beddingfield and Eylyard, were the first Recusants in the begin­ning of the eleventh year of her Majesties Government: And then Pope Pius Quintus being informed by some English Jesuits, that such was the number of Roman Catholicks here, is if he would Excomu­nicate her, they would presently enter into an open Hostility, with force sufficient to depose and utterly supplant her Highness, and re-establish the Roman faith, whereupon the Pope does Excomuni­cate her, and Plots with the King of Spain to invade her: Then did the Papists withdraw themselves from our Churches: Thus you see it was not Conscience of Duty to Christ as it is in the Protestant Dissenters, who own no Authority on Earth but the King and the Laws; but Veneration to the Autority of the Pope the Queens E­nemies and implaceable hatred of all Protestants, that led Papists to­gether [Page 14]to forsake the Church and their Allegiance, and still conti­uues them Recusants; so that it is the true intent of the Law, that it should be executed against Papists; upon this Ground it was, that (as I am well informed) a Grand Jury of Middlesex, having Presentments brought against several great Papists, would not find the Bill against them for not going to Church till the Constable or Witnesses had given Testimony that they were commonly re­puted to be of the Roman Religion, and that the Clerk had in­serted in the Bill of Indictment, Pontificiam Religionem Profitentes, wherein (I judge) they did persue the true Intent of the Law, in that case provided.

If you shall still insist, and say, that Papists do religiously give this Authority to the Pope, I answer, First, that that Opinion is so manifestly contrary to Reason and Christianity, that every man that uses Reason, or owns Christ's Religion, except Papists them­selves, must condemn it. Think you that a Mahometan, or a ju­dicious Heathen, upon a fair Hearing of both Parties, would judge the Pope's Pretensions to his Infallibility and Supremacy reasonable, or in the least doubt of their Invalidity? But, Secondly, They that would have Liberty of Religion and Conscience, do not pretend to such that is incosistent with the Sovereignty of Independent States and Kingdoms, in things necessary to civil Society; much less to such a Liberty as shall permit Religious Enemies to cut their Throats whenever they can by Watchfulness find an Opportunity? Such is that Conscience which this Objection pleads for, as may appear by what I have said above: And the very thing I am pleading a­gainst, is, The depriving Men of their Properties and Liberties up­on any Pretence whatsoever, saving for a Crime that's inconsistent with common Liberty and Property: But the Consciences of Dissen­ters require nothing but a Liberty to that, which if it were not for­bid, would be so far from being hurtful to the Commonwealth, that it would rather be a Vertue, nothing detracting from, but condu­cing to the Common Good. And I hope every honest Man will make a difference between those Laws that are necessary to the common Cood, and those that are made merely for the Pleasure of the Law-givers; and which others, as wise and Christian as they would either null or make contrary. Surely the Consciences exerci­zed about the Obedience of these two sorts of Laws, are far dif­ferent one from another: And that our Penal Laws, so far as they [Page 15]respect Dissenters, are of such a Nature, as that they are not now to be press'd upon Protestants who have the Opinion of the House of Commons in the last Parliament at Westminster, Gentlemen of as good Credit for Wisdom, and Love to Protestantism, and for E­states and Interest in their Countries; as perhaps ever was seen in England; wherein it was resolved nemine contradicente, That the Persecution of the Protestant Dissenters upon the penal Laws, is at this time grievous to the Subject, a weakening to the Protestant Interest, an Encouragement to Popery, and dangerous to the Peace of the Kingdom. Jan. 10.

And now methinks, Sir, you should have as great Respect to the Opinion of the whole Nation of Commons in Parliament, as you have to the Opinion of his single Grace, my Lord Arch-Bi­shop of Canterbury, from whom this Order for prosecution of Protestant Dissenters by Presentments, Excommunications, &c. issues in flat Contradiction to the Opinion now mentioned, espe­cially considering withal the Doubtfulness of Ecclesiastical Jurisdi­ction and Laws; and all the rest that I have said and argued in this Case, which I presume may have some Influence upon you and any rational honest Man. I pray you consider in the Fear of God, in Honor of Christ and his Religion, and in the Love of your Chri­stian Neighbours; and do what such Consideration shall direct you to. Take the safer Course, which is always the more mode­rate in penal Matters. Be sure you act not against Conscience, nei­ther compell others so to do.