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authority_n	king_n	law_n	legal_a	2,470	5	10.2354	5	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 is repealed but the power of the Papal dispensation in such marriages is condemned the said marriages are recited again and declared to be prohibited by Gods Law only with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

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 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Marc. Antonin LONDON Printed for the Authour and Published by Richard Baldwin 1682. Mr. EMMERTON's MARRIAGE WITH Mrs. BRIDGET HYDE CONSIDERED SIR I Received your Letter wherein you were pleased to consult me and to desire my thoughts how a Judge in the Cause of Mr. Emmerton's Marriage to Mrs. Bridget Hyde now depending before the Commissioners of Delegates ought to guide himself And what Opinion I have of the Authority of such Commissioners And to resolve you how Matrimonial Causes came to be thus split and the same cause in several respects of several Conusance The Question of Right Cognoscible in the Curia Christianitatis But the Question of Fact in our Common Law Courts How this inconvenience and irregularity came about and whether it be not remedyed by the Stat. of H. 8. which prohibits Marriages to be Impeached that are contracted by Persons not within the Levitical degrees of Kindred By that Statute the Laws of Moses to the Jews is become a Statute Law of England and the interposing of the Church her Authority in defining within what degrees Marriages can be lawfully made are discharged The Canons of the Church have always given the Rule to all Christendome in these Matters Matrimonial Causes are conducted every where by the Canon Law where it is not controld by the Soveraign Law of the State As the Civil Law doth govern in most Countries in all Cases where no municipal Laws or local Customs do intervene what the Roman Civil Law hath Establish'd is not the measure of Matrimonial Causes but the Canon Law or Councels of the Church which is not so in any other Causes refer'd by our Constitutions to the Civil Law Courts You likewise desire my Opinion about the Levitical degrees and for what reason Marriages within these degrees are forbidden and whether we ought to stand within the Letter of that Law of Moses and the prohibited instances and not take Cases under aparity of Reason to be likewise prohibited Whether our Common Law Courts are not competent to understand and Interpret a Chapter of Leveticus and a Law of Moses as well as any other Writing or as our own Statute Laws And consequently the Authority of the Church precluded in judging any longer about the lawfulness or unlawfulness of Marriages in respect of the degrees of Kindred which you think was the only reason that the Church interposed in Matrimonial Causes which were certainly before the Statute of H. 8. within their Province And that duly for that they had been from the first publishing of our Religion accounted of a Religious consideration and were declar'd by the Laws and the Spirit and Purity of our Religion and those matters were rightly and fitly conducted by the guides of our Religion Sir as soon as I read your Commands I applyed my self all other matters but necessary avocations neglected to give you such a return as I could not conside●ing my own great insufficiency to resolutions in matter of such high moment but considering that you desired what I could not what I could not say in the matter But in what I fall short of your expectation you must impute it to the very short time you allotted me a peremptary day for this cause being very near and what I shall after that time offer may be like advice administered to a departing man But that which did most discourage me in this undertaking was want of particular notice of the Cause you having supply'd to me but some Generals and given me onely the complexion of the Cause and not given it me represented in all its lineaments and parts nor furnished me any of those niceties that have perplexed the Cause nor those Arts which have given it all this delay by which the iniquity of a pretence may be discerned and the zeal of a Righteous man may be provok'd and excited But tho you have not troubled your self with a prolix account of those matters for the sparing my trouble I am pleased that you are not without a just resentment of them and they will be duly considered by you when you come to form your Judgment for I understand by you that you were not at the last Session in this Cause being deteined by very weighty affairs of your own and presuming as you say that you could not imagine that a Cause of that clearness a Matrimonial Cause a Cause of any other to be highly favour'd a Cause that would not suffer any longer delay The mischeifs and the sin of those delays becoming every day more crying and clamorous could not but find a ready Sentence from worthy men that are touch'd with a sence of Justice and have any zeal for the Rights of Marriage the happiest and best Institution in the World and the most Sacred and inviolate Faith of the Matrimonial Contract For Sir most true it is that many and great are the advantages to mankind that proceed from the state of Marriages that is to say a propagation of our kind honest and well-becoming the Dignity of our Nature a more effective and busie care of two Parents in Educating our Children by which the better improving our kind is provided for This State secures to every Child a Father as it doth appropriate the Child to the Husband so that we are entertained also with the love of our Children as well as the Woman who would otherwise enjoy a pleasure of which we could hardly ever partake The labours and cares of our life are encouraged susteined and rewarded by the love of our Issue and Posterities and they enjoy the Riches and Honours and Rewards of their Fathers Wisdom and Virtue which would otherwise determine into the first acquirer return to the fiscus or without satisfaction be bestowed upon a less beloved Stranger The worthy and generous ambition consequently of performing worthy Actions and rendring our selves useful to the publick would cease and languish the publick good be utterly neglected and Kingdoms and Commonwealths dissolve and we become again as Savage as the Beasts themselves unguarded and without the comforts or Ornaments of humane life Cecrops from his Institution of Marriage at Athens is honor'd with the Title of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by this Institution we all become 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and know our Fathers Without Marriage our great men who undervalue and disgrace it had found themselves among the heard and for ever there had continued and never

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