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authority_n	act_n	court_n	parliament_n	2,086	5	6.9871	4	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A45196	Mr. Emmertons marriage with Mrs. Bridget Hyde considered wherein is discoursed the rights and nature of marriage, what authority the Curia Christianitatis hath in matrimonial causes at this day, the levitical degrees, the bounds of a legal marriage, and the reasons thereof, and that now matrimonial causes are determinable by virtue of the statute of H. 8. by the judges of common law : in a letter from a gentleman in the country to one of the commissioners delegates in that cause, desiring his opinion therein.	Hunt, Thomas, 1627?-1688.	1682 (1682)	Wing H3757; ESTC R15660	26,212	49

to his Sons Wife Of the Brother to his Brothers Wife Of a man to his Wives Sons Daughter Of a Man to his Wives Daughters Daughter Of a Man to his Wives Sister Are plainly prohibited by Gods Law and that no man can dispense with Gods Law and that a separation be in such marriages be definitive Sentence in the Spiritual Courts of the Kingdom without prohibition from or appeal to Rome of such marriages By this Act marriages did become of lay Cognizance faith Sir John Vaughan R. 214. for the Kings Court were requir'd by this Law by the Kings writ of Mandamus to enjoyn the Ecclesiastical Courts to treat such unlawful Persons pretending marriage as incestuous Persons But whether this statute made marriages of lay Cognizance I will not determine for the statute that direct to whom administration shall be committed doth not take the matter of administration to the Common Law Courts neither do the writs of our Courts of Westminster which issue to the Bishops commanding them to assail an Excommunicant give the power of the Keys to the Secular Courts There was nothing by this Act of 25. H. 8. done to restrain the power of the Church in declaring what other marriages were unlawfull This Act only restrained the Popes power of dispensing with such unlawful marriages and gave Authority to the Kings Court to injoyn and command the Ecclesiastical Courts to dissolve such marriages by their definitive Sentence without regard had to the prohibition from or Appeal to Rome But the statute 28. H. 8. C. 7. the former Act of 25. is repealed but the power of the Papal dispensation in such marriages is condemned the said marriages are recited again and declared to be prohibited by Gods Law only with these differences that in the prohibition of the Sons marrying the Step-mother of marrying the Unckles Wife of the Father marrying his Sons Wife of the Brother marrying the Brothers Wife is added carnally known by the Father Unckle Son Brother respectively and in the prohibition to marry the Wives Daughter or her Sons Daughter or her Daughters is added having Carnal Knowledg of his Wife And with this further addition That if any man carnally know any woman all persons in any degree of consanguinity or affinity of the persons so offending shall be adjudged to be within the said prohibitions in like manner as if the parties so marrying one another had been marryed for instance if a man carnally know a Woman not marrying her he is prohibited to marry her daughter or daughters daughter In all other clauses this Act and the former Act of 25 are Verbatim the same and this Act is in force Sir John Vaughan says Rep. 215. that these degrees were the second time made of Lay Cognizance In this Act dispensations for such marriages are prohibited And for that this Act did declare these marriages to be prohibited by Gods Law they were declared and made indispensably unlawful null void and that they could not be ligitimated by the Papal Authority And thereby the Common Law Courts had a power given them to issue out the Kings writ of mandamus to require them to dissolve such Marriages by their definitive sentence But the Arbitrary power of that Church in defining the lawfulness of marriages yet remained in full force and unimpeached which was an Authority very much abus'd by unreasonable restraints of the freedom of marriage for Remedy of this there was a provision made by 28. H. 8. C. 16. That all marriages made before the 3d day of Nov. 26. H. 8. whereof there is no divorce had by the Ecclesiastical Laws of the Realm and which be not prohibited by Gods Law limited and declared in the Act made this present Parliament for Establishing the King's Succession or otherwise by holy Scriptures shall be lawfull and effectual by Authority of this present Parliament This Law went in Confirmation but to some few marriages before that time made and not rescinded by divorce thus forbidden by the Canons of the Church but yet left the power of the Church unabated still in declaring marriages unlawful other than are by the Law in Leviticus prohibited in all marriages but those within that time made and not divorced But by the statute of 32. H. 8. Cap. 34. a full and compleat remedy is provided against the unreasonable assumings of the Canon Law to restrain the Liberty of marriage for slight and phantastical motives and inducements by which the Virtue of Chastity was not materially promoted By this act it was declared That all persons lawfull to contract marriages that be not prohibited by Gods Law to marry And it is thereby enacted That no prohibition or reservation Gods Law Except shall trouble or impeach any marriage without the Levitical degrees And that no Person of what Estate degree or Condition whatsoever he or she be shall after the said first day of the month of July aforesaid be admitted in any spiritual Courts within the Kings Realm or any by Graces other Lands and Dominions to any process plea or allegation contrary to this Act some part of this as to precontracts was repeal'd by Ed. 6. and the residue was repeal'd by 1. 2. P. m. but it is revived 1. Eliz. Cap. 2. and now in full force Note That the words by Gods Law and the words or otherwise by Holy Scripture in these two last mentioned Acts refer both to the Laws about marriages in Leviticus But for that besides the cases expresly limited and declared in that Law other marriages within a parity of reason by the true sense of that Law which is the Law and the Scripture might be intended prohibited and therefore prohibited by that Law it is added or otherwise in holy Scripture Besides that of Leviticus there is no part of the old Testament if that prohibits or makes unlawfull any marriage Christ made no Law about the Lawfulness of marriages but confirm'd those which the Law of Moses had allowed against the abuse of the liberty of divorcing permitted to the Jews by the Law of Moses By the aforementioned statute that Law in Leviticus is made the statute Law of England it is become of Lay Cognizance and however the Divines may gloss upon the text our Judges have the Authority of a Legal and binding interpretation of that part of the Scripture Our Judges at Common Law are as competent to interpret this Law in Leviticus as any Divines and need not want any Learning that is necessary for expounding thereof besides that they have senses exercised to make right and fitting interpretations of Laws In omnibus legibus etiam maximè odiosis quales sunt quae paenam irrogant receptum est vbi eadem est ratio jus idem valeat In benignioribus autem legibus etiam à paribus ad paria procedit interpretatio Our Courts may follow the Karaej who interpret it to cases of parity of reason or the Talmudists which stand within the enumerated Cases of the

Law or follow their own opinion different from them both The words Gods Law excepted cannot prejudice the Authority of our Judges in this matter tho they are insisted on by some as if the whole Canon of the Scripture was to be consulted in this matter and the whole Science of Theology must be understood before we can come to a Determination what marriages are forbidden by Gods Law in the holy Scriptures To leave the Ecclesiastical Courts an Authority to undo any marriage upon a pretence that they are the best Interpreters of Gods Law To give them leave to pretend the Law of God for the unlawfulness of any marriage other then what is expresly or literally forbidden or interpretatively or upon construction in the Law of Leviticus would make the Law illusory and frustraneous Especially if they are left Judges of the matters for then they can and will to be sure allow their own pretences and reasons and no prohibition ought to issue to the Ecclesiastical Courts or else they not bound to obey and they have a ready answer in case of a prohibition to the Kings Bench vizt that Doctors differ upon the Law this stated I proceed and conclude The Law of Leviticus is the only Law that restrains the liberty of marriage in the holy Scriptures The Law of Leviticus is become part of our statute Law as much as it would have been if the matter thereof had been transcribed into the Act of 32. H. 8. without reference to the text or as if a Law of Rome or Athens had been enacted by Authority of our Parliament to be the Rule and measure in the Government of any Affair But the Law of 32. H. 8. the definitive Authority of the Church of what marriages are lawful is taken away By reason of this Law the Ecclesiastical Courts can never bring into question any marriage for any pretence for their Canon that the Persons are not lawful That the Question consequently of the legitimateness of marriages is restor'd to the Judgment of the civil and temporal Courts In that this Law of Leviticus by our Law is called the Law of God tho it is not truly so to us it must have such Authority as a Law of God ought to have and we are to conclude that our Law-makers intended it should have the like Effect as a Law of God by styling it so As any matter that is called and rated a Commune Nocumentum or nusance in any statute Law is for that it is so called in any Law indispensable by a Non Obstante All the Laws of God which prohibit any thing to be done from that absolute Right and Dominion that God hath over us makes all Acts contrary to the prohibition sinful and impious without all Effect null and void It is not so in human Laws except they add to the words of prohibition words that irritate A Marriage may be forbidden by human Laws that do not annul the marriage when made of such Laws there are many Ulpian calls them Leges imperfectae For that the Law abovementioned hath made the Law of God to the Jews of prohibition of marriages the Law of England But hath not made the particular Laws of God for dispensation or allowance of marriages as between the Heireis and the next of Kin And the younger Brothers marrying the relict of the Elder Brother dying without issue which were also the Laws of Athens and Sparta the Law of our Land Such marriages are not allowable by our Law but stand interdicted by the general prohibition of that Law which is only made the Law of England under the notion of the Law of God We further therefore conclude that a marriage within these prohibited degrees is no marriage Persons contracting marriage within these degrees are no more marry'd then two women or two men can be marryed A moral faculty to a moral Act is as necessary as a natural ability to the producing a natural Act. It was comprehended in the Question whether a marriage was had in fact at common Law whether it was a man marryed to a woman whether both persons were of sufficiency to make the contract whether either of them precontracted or before that marryed for the Person precontracted or before marry'd had no power left over him or herself Whether if by force or Dolus malus the marriage wanted consent for then it was likewise no marriage All these matters come into Issue upon the Question marry'd or not marry'd and the truth of these matters are understood by proof or inspection as all other things of like nature are proved and no religious Notices are requisite to instruct the Enquiry upon a Trial thereof had and therefore was never of right proper for an Ecclesiastical Court And now in like manner if the Persons be not lawful the marriage for that reason is null and the Question is a Question of Fact now vizt whether of kin or how a kin not of Law vizt whether Persons so a kin may marry an utter Disability in the Persons disabled hinders the marriage to proceed and there is now no Judgment of Discretion left to the Ecclesiastical Courts The common Law Courts had Knowledge of the Question whether marriage or not marriage this cannot be denyed or brought in question with any colour or shadow of pretence A man need not go into the Ecclesiastical Court to prove his marriage before he can sue for that Estate or Person of his wife as he must to prove a will before he can sue as Executor and any man may directly declare upon a right acquired to him by marriage of his Wife The Fact and Law in the case of marriages is now the same and the distinction of marriage and Legal marriage is taken away The question is now single whether marriage or not marriage and therefore cannot be divided into two cognizances And this belongs solely to the temporal Courts for that the Ecclesiastical Court cannot allow of what the temporal Law hath declared to be contrary to the Law of God Nor can they have conusance of a statute Law they cannot impeach any marriage that our Statute saith shall not be impeached and whether it ought to be impeached or no whether within the Statute or no they are by no means to judge Our Judges issue out writs of mandamus to the Ecclesiastical Courts to require them to separate and punish Persons making marriages by our Law incestuous and void as well as we prohibit them if they disquiet any marriage by our Law made lawful in which our Judges interpret declare and resolve uncontrolably The Ecclesiastical Courts can neither bind nor loose judicially and therefore can have no judicial Authority And therefore I conceive the Ecclesiastical Courts exceed their Jurisdictions as it is now restrain'd in consequence of these Statutes if they bring any Marriage into question in that Court and ought to be Prohibited since that the question of Right and Law which was

proper for them when they gave the Rule of the Lawfulness and unlawfulness of the Degrees is now become a question of Fact and is Cognoscible in our Conmon-Law-Courts A Marriage Try'd at Law is not controllable by the Authority of the Curia Christianitatis And where there hath been a Tryal at Law in affirmation of a Marriage the Ecclesiastical Courts interposings for that reason the rather ought to be Prohibited By the aforementioned Laws all Marriages made within the Levitical degrees are ipso jure null and void and indispensable by any Ecclesiastical Authority And Marriages without the Levitical Degrees by the Ecclesiastical Courts are not Impeachable No process Plea or Allegation is to be allowed in any Ecclesiastical Court to trouble or impeach such Marriages Therefore it is no Objection or Argument that the Ecclesiastical Courts notwithstanding have still Cognizance of Matrimonial Causes For that Consultations are granted upon Prohibitions when the Marriage is made between Persons not Lawful and within the Levitical Degrees For in such cases those Courts have no Power of Judgment or Discretion They do not Annul such Marriages by their definitive Sentence For they are by our Law no Marriages and void and made null to their Hands and whether they will or no. A Consultation in such Causes is but a softer word for an Injunction or Mandat to Separate the Persons and Punish them by the Censures of the Church as incestuous which if they do not do upon a Consultation they will be peremptorily Enjoyn'd to do by the Authority of the King 's Court. Sir John Vaughan would have Matrimonial Causes to be still of Ecclesiastical Cognizance read pag. 320. First For that some Marriages are allowed to be unlawful by God's Law which are not within the Levitical Degrees And from thence would infer That there remains a Judgment and Authority in the Ecclesiastical Courts in Matrimonial Causes and that the definitive Authority of the Church of Marriages Lawful or unlawful is not extinguished by the aforementioned Statutes His instances to prove this are these viz. A Marriage made with a Person Precontracted or with a Person naturally Impotent These Marriages he saith are against God's Law yet they are not Marriages within the Levitical Degrees But all the World hath taken such Marriages to be no Marriages and therefore not unlawful Marriages And the matter of impotency or percontract makes a Marriage none in fact and enquirable in an Issue at Common-Law whether Married or not Married His Second Reason is For that Canons may be made by the Authority of the Church to make other Marriages which are not within the Levitical Degrees unlawful A Lawful Canon is the Law of the Kingdom as well as an Act of Parliament This is a great Paradox indeed that Canons are Laws that they can controul Laws That a Parliament can give away the Legislative Authority and impower any Synod or Convocation to Abrogate their Laws Thirdly He makes an Arbitrary distinction between a Marriage within the Levitical Degrees and a Marriage within the Levitical Prohibition And would have more Marriages within the Degrees than are the Marriages Prohibited and consequently some Matrimonial Causes still remaining to the Judgment of the Ecclesiastical Courts And this he proves from an Instance of the Wives Sister which is within the Degrees he saith but not Prohibited in all cases he thinks because it is Prohibited to Marry her during his Wives Life but doubted if Lawful after her Death But this doubt is put to an end by 25. H. 8. as is before recited which declares it to be Prohibited by God's Law and indispensable and the Persons to be Separated These Reasonings of a great Man as Sir John Vaughan truly was are a remarkable instance how temptible great Men are to assume speak things Gratis and affect to be super-fine Heterodox and Sceptical True it is after this restraint of Marriage limited by our Laws The Church by her Canons may use her Authority to bring into dislike discommend and disswade other Marriages that are by our Law allowed and are not to be Impeach'd by the Ecclesiastical Courts and by this means Marriages so disswaded may at length be brought into disreputation and general dislike and come in time to be made unlawful But the observance of such Canons cannot be enjoyn'd under the incurring of Church-Censures and by a judical coercion of the Ecclesiastical Authority to affect which ignominy belongs to the Law and Civil Authority Infamiae quoque irrogatio pars est Gladii saith Grotius in his Book de jure Summarum potestatum circa sacra But most commendable it is to lay Restraints upon our selves for the sake of Virtue where the Laws have left us at liberty In the time when the Christians observed Moses Law that of Justin Martyr was verified in their Practises 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 They obey the Laws and in their Lives are better than the Laws require And if any Man will for the regard to the virtue of Chastity abstain from a Marriage of a Cosin German or any other near of Kin to him and therefore forgoe any advantage it ought to be imputed to him as a worthy instance of Virtue and very Commendable But God hath made no positive Law to inhibit them Our Laws have not forbidden them and Nature hath yet made no Law to prohibit and restrain them For Nature as well as Polities makes Laws upon Emergent Mischiefs and great Inconveniencies that do arise from the use of Natural Liberty were the first permission was innocent but whatever is not the best and whatever is not very convenient is not enjoyn'd as a Law under the sanction of an evil Conscience The Laws of Nature are the directions of Reason for avoiding Mischief or obtaining some important Good to the generality of Mankind and direct us where Laws do not command Latius patet officiorum quam Juris regula Quod non vetat lex hoc vetat fieri pudor But he that is not a Law to himself from his slow Apprehension and dull Capacity is Governed only by Penalty and the sharp Restraints of Law The Law of Nature is no more to be measured by the understandings and Consciences of some Men than it is to be defin'd by the propensions and actings of beasts Neither are the Laws of Nature to be numbred for they are as many as the various Applications of Reason to the emergent Cases and there is no end of her legislative Authority Men of refined Senses do soonest apprehend these inconveniencies which render things by the the direction of humane Nature or Reason unlawful and by their Authority first and after that by the concurrent Sense of inferiour Men that at length reflect they are noted of great inconvenience and mischief Become at length detestable and in process of time an aversation and loathing is begot in the lowest order of Men to transgress them Whatsoever by a general Opinion is made infamous from the regard

the express letter thereof to tye men to the necessity of performing acts of virtue which cease to be so if done by command and not by a prompt generosity and easy inclination The formal reason of virtue consisteth in being voluntary and free that it be not done of constraint but of a ready mind no man can be charitable or grateful in any instance if he be so by the compulsion and constraint of a Law neither can he be counted chast valiant or patient if he be not so in conformity to the inward love and Complacency and satisfaction he takes in comporting with the Rules of the like Virtues It is no Exception against the legal validity of any act that it is not altogether without fault and the most commendable The Lawes of nature themselves have different considerations Acts of vitue in the first degree are enjoyn'd by the Law of Nature viz. where the not performing them tenders the man vitious and mischievous and our conscience for these omissions by sharp convictions and sentences against our selves binds us over to the expectation of dreadful punishments to be inflicted upon us at the great Tribunal But we are invited to great and noble acts of virtue by the gloriations and applauses of our consciences which are the anticipations of that Honor and Glory that cometh from God To such Acts we do not find our selves compelled or urg'd by fear but invited to them by the worthiness of the Acts themselves and the Honor that attends them and the comfortable expectation of a glorious Immortality But besides the necessary first Acts of Virtue which is a little else then not being wicked to which we are bound by fear of punishment and the free and voluntary Acts of a noble virtue to which we are invited by increas'd rewards which are threatned and promised and in some sort performed and executed in and by our own Consciences There are a sort of Laws of precise decency which our Consciences oblidge us to observe for our conscience in whatever it dictates declares the Law of Nature to us and the not observing these matters of decence affects us with some shame and the observing of them renders us honest to our selves the neglect of them is ra-rather 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 than 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the greatest punishment thereof in Nature is blushing and the greatest reward of observing them is that we do not fall into a Disesteem of our selves and a dejection of mind And in conformity to the rule of our conscience by civil Government matters of indecency when prohibited by Law are only noted with ignominy wickedness is punished and virtue is rewarded The procedure of our consciences hath governed human Laws as well as it instructs us how God will proceed with us by which we become inexcusable Pub. Mim Grave est judicium vbi nullum est praejudicium But all Acts that are prohibited in nature as undecent and inconvenient are not therefore null and void for that the indecency may lye in the very Act and not in the effects that that Act produceth and the inconveniencies that follow the rescinding of the act may be greater than the indecence and inconvenience of the act it self That which I mean to say is that the doing a thing undecently to which I have a Competent authority doth not therefore want effect Laws prohibitory of such Acts. If they do not irritate as well as prohibit leave such Acts when prohibited in force much rather have they effect when there is no such prohibitory Law and therefore the consideration that a thing is not unquestionably well ought to have no direction in a Judicial sentence for making any Act done by a competent Power null and void A Sin in nature is much rather to be avoided than a transgression which seems to be forbidden at most by the rules of decence and the precise measure of conveniency In matrimonial causes nothing is to be favor'd but the marriage it self no quality is considerable in the Persons contracting marriage but that which give them capacity to make the contract Whether the Persons be of the same or of different Religions of a true or false Religion makes no matter In case of a Marriage between a Christian woman with a Pagan or Jew if any thing can impeach the Marriage it s because they do not contract for a marriage according to the Christian Law but under the Liberty of an arbitrary Divorce and Polygamy which is not agreeable to the institutions of our Saviour But if a Jew Pagan or Mahometan received the Christian Baptism but yesterday he is a better Christian than if he had been baptised in his Cradle for that he was so lately baptised if he be sincere in his profession which none but God can know but Man ought to presume The proof of the Marriage is to be favor'd by the Judges in matrimonial causes Where the probabilitys on either side for or against the marriage are equal The danger of Sin of an unpardonable Sin which may be occasion'd by a sentence against the marriage ought to determine for the marriage The consideration of this ought to be put into the Ballance of Judgment in such cases and make the Sentence In such cases the evil Fear'd is greater than the Good that can accrue to the Person that pretends to dissolve the marriage which is only the Liberty of another choice In Charity therefore the Judgment ought to prevent the greater evil by recluding the occasion of it and determine in favour of the pretended marriage which is innocent and safe but so probably prov'd Besides that the incurring the probability of occasioning this Evil cannot be justified by the Freedom they design her It is not agreeable to the favor that is due and allowed to the marriage contract that it should be exposed to all the Artifices of Wit and Cavillations of Law that the Wit of Men can invent to lesson the credibility of the Testimony produced in its Confirmation By a single Artifice of putting the marriage under an ill Name by calling it a Clandestine marriage with an accent of censure they make all the Witnesses that are proper to testify such a Contract and are to be present if any other for that bad Name sake suspectae fidei and incompetent Witnesses Clandestinity is the word of reproach which carrys with it no fault but a neglect of that solemnity which would have put the matter out of all dispute this is the disparaging Name they affix with art to this Marriage But an innocent and prudent reason the case it self gives and assigns for that Circumstance of the Marriage and that which tells us why a thing is so and so done and in such manner contributes to the proof that the thing was really done when performed in that form and manner If the marriage had been celebrated in the Church it had been less credible the Mothers consent would have been less credited