causes of Divorce Cod. lib. 5. tit 17. l. 8. But the Canon Law decrees otherwise In the time of Ed. 1. William de Chadworth was Divorced because he carnally knew the Daughter of his Wife before he Married her Mother The Stat. of 1 Jac. cap. 11. is the first Act of Parliament that was made against Polygamy Polygamia est plurium simul virorum uxorumve connubium The difference between Bigamy or Trigamy c. and Polygamy is Quia Begamus seu Trigamus c. est qui diversis temporibus successive duas seu tres c. uxores habuit Polygamus qui duas vel plures simul duxit uxores And if the Man be above the Age of fourteen which is his Age of Consent and the Woman above the Age of twelve which is her Age of Consent though they be within the Age of twenty one yet they are within the danger of the Stat. of 1 Jac. cap. 11. Co. Inst Par. 3. Cap. 27. vid. Instit par 1. Sect. 104. 3. This matter of Divorce hath often ministred occasion for high debates and altercations touching second Marriages As whether a Divorce by reason of Adultery in either of the Married Parties doth so dissolve the Marriage à vinculo as that it may be lawful for the Innocent Party to Marry again during the others life By the 107 th Canon It is provided that in all Sentences for Divorce security be given and Bonds taken for not Marrying during each others life By enjoyning such security to be given and such Bonds to be taken This seems to be a Penal Canon viz. pecuniarily Penal whoever therefore breaks the Law incurrs the penalty and whoever suffers the penalty doth answer and satisfie the Law which before he had infring'd a penalty expressed or implied provided for in and annexed unto a Law that is in it self prohibitory seems to create some qualification of that legal prohibition Prohibitio vim suam exercere potest per poenam vel expressam vel arbitrariam Et hoc genus Leges Imperfectas vocat Vlpianus quae fieri quid vetant sed factum non rescindunt So Grotius Grot. de jure Bel. Pacis lib. 2. cap. 5. Sect. 16. But to speak a little nigher to the point in hand it is Grotius again in the same place Si Lex humana conjugia inter certas personas contrahi prohibeat non ideo sequitur irritum fore Matrimonium si re ipsa contrabatur sunt enim diversa prohibere irritum quid facere The Laws whether Ecclesiastical or Temporal are not of any private interpretation yet to speak herein only hypothetically if this be interpretative as a penal Canon by vertue of the said Security and Bond then apposit and observable is that which Grotius hath in another place in Casu Legis Paenalis his words are these viz. Rex qui est Auctor Legis ubi Regni ipsius personam auctoritatem sustinet qua talis est potest legem etiam totam tollere quia Legis humanae natura est ut à voluntate humana pendeat non in Origine tantum sed in duratione Sicut autem totam Legem tollere potest ita vinculum ejus circa personam aut factum singulare manente de caetero lege Dei ipsius exemplo Qui Lactantio teste legem cum poneret non utique ademit sibi omnem potestatem sed habet ignoscendi licentiam Imperatori inquit Augustinus Licet revocare sententiam Reum mortis absolvere ipsi ignoscere Causam explicat Quia non est Subjectus Legibus qui habet in potestate Leges ferre Grot. ibid. de Paenis cap. 20. Sect. 24. How farr the power of Princes may extend it self in this matter is not before us But clear it is that all such as acknowledge the Regal Supremacy will withall confess that his Majesty hath more right to dispence with Canons within his own Dominions ex plenitudine potestatis Regalis than was here formerly exercised ex usurpatione potestatis Papalis In all Laws that are both Prohibitory and Penal as they are of the more force by reason of their Prohibitory quality so they seem to abate of that force by reason of the annexed penalty for he that suffers the penalty satisfies the Law though he transgress the Command The Statute of primo Jacobi hath a Proviso or exception to second Marriages by persons legally Divorced no Caitons or Constitutions prevail or are executable in repugnancy to the Kings Prerogative or to the Laws or Statutes of this Realm That Statute of primo Jacobi prohibiting second Marriages during the Life of each other doth not only not extend to persons legally Divorced but as to such it is with an exception limitation or proviso as aforesaid Sir Ed. Coke taking notice hereof in Porters Case reports that that Statute extends only to persons which are Divorced by Sentence in the Spiritual Court And that distinction of Total and Partial Divorce Or that vel à vinculo vel à Mensa Thoro will not it seems satisfie all Judgments some alledging that ubi lex non distinguit nec nos distinguere debemus applying that Rule ad Evangelium also and thence will not be perswaded but that the innocent party in Causa Divortii ob Adulterium may Marry again altera parte existente because though they know it to be otherwise by Text Canonical yet know not where to find it so by Text Scriptural and specially because they find a Proviso in the said Statute of primo Jacobi that the parties Divorced by sentence if he take another Wife or she take another Husband shall not be within the danger of the Statute And that this extends to every manner of Sentence of Divorce and not to any particular cause of Divorce Cajetan though of the Roman Church yet on the 19 th of Matthew saith Intelligo ex hac Domini Jesu Christi lege licitum esse Christiano dimittere uxorem ob fornicationem carnalem ipsius uxoris posse aliam ducere and soon after adds Non solum miror sed stupeo quod Christo clare excipiente causam fornicationis torrens Doctorum non admittat illam Mariti libertatem This Question Whether after Divorce for Fornication it be lawful to Mary again during the Lives of the parties Divorced is at large handled by the learned Doctor Hammond in his Treatise of Divorces where he says that Mat. 19. 9. and Mark 10. 6. are two places of such perspicuity one Cause of Divorce allowed the Christians that great Breach of the Conjugal Vow and whosoever Divorces and Marries again save in that one Case punctually named committeth Adultery that as no Paraphrase can make them more Intelligible So there is but one Question that can reasonably be started in them viz. Whether he that puts away his Wife on this one authentick cause be so perfectly freed from the Conjugal Vow and Bands that he may Lawfully Marry some
other Woman and some other Man Marry that Divorced Adulterers Wife In Mat. 19. 9. The words are That whosoever shall put away his Wife save for fornication and shall Marry another committeth Adultery and he that shall Marry her that is put away committeth Adultery Which words says that learned Author in Sect. 22. are favourable to the affirmative that it is Lawful for him in that one excepted Case to Marry again The nature of a Divorce among the Jews was the rescinding of the Conjugal Bands and by one supposition common to Jews and Romans viz. That they who were duly Divorced might Marry again So of the Jewish Divorced Wife Deut. 24. 2. 't is expresly said she may Marry another and of the Man this was his only End of putting away his Wife in that place that he might Marry another Accordingly the Form of Divorce in Misna tit Gittin Behold thou art free or at liberty for any Man and this is the Bill of Divorce between me and thee so that it is free for thee to Marry to any Man thou wilt Idem Sect. 27. yet on the other side says that learned Author it may be argued that although in the Mosaical Law Divorce was the rescinding the Conjugal Bands to which it was consequent as long as the Jewish polity lasted that they who were duly Divorced as in the one Case of Fornication might freely Marry again yet in the acceptation of our Christian Courts Divorce appears not to be any more than the solemn Judicial separation from Conjugal Society as that it seems to be rather the freeing the Husband and Wife from the Obligation to mutual conjugal duties than the utter rescinding and dissolving the Bands For if it were so then that Husband and Wife could never come together again without a new Wedlock which was never heard of in the Church that Adultery the efficient cause of Divorce though a breach of the Conjugal Vow is yet no actual dissâ—lution of the Conjugal Bands among us Christians seems probable says Doctor Hammond by these two evidences 1. Because Adultery committed by the Husband dissolves not Marriage which yet it equally should if that fault committed and not the Sentence of Divorce rescinded the Conjugal Band c. In this a difference is observable between us and the Jews for in case of Fornication the Jew expected no Sentence of the Consistory but the Man might put her away give her from himself a Bill of Divorce which was never allowed or practised among Christians 2. Because if this were so if Adultery in the Wife dissolved the bands then the Husband that after the Wifes Adultery continued to live with her Conjugally must be concluded to commit Fornication with her the validity of the bands being it and nothing else which makes Conjugal Society Lawful Accordingly hath the Opinion of the Church been anciently as in Can. Apost 48. If any Laick put away his Wife and Marry another or Marry a Woman which hath been put away by another let him be Excommunicate So likewise at the Council of Arles An. 314. Can. 10. De his qui Conjuges suas in adulterio deprehendunt iidem sunt Adolescentes Fideles prohibentur nubere placuit ut in quantum possit concilium iis detur nè viventibus uxoribus suis licet Adulteris alias accipiant Likewise in the Milevitan Council An. 402. at which St. Augustine was present it is decreed that secundum Evangelicam Apostolicam Doctrinam neque Dimissus ab uxore neq Dimissa à Marito alteri conjungantur sed ita maneant aut sibimet reconcilientur So also in the Codex Can. Eccl. African Can. 102. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That they that are Divorced from Husbands or Wives should remain unmarried And what hath thus been defined by these Canons is evidently received into the Ecclesiastical constitutions of this Church which therefore hath decreed that when Divorces are pronounced Monitio prohibitio fiat ut à partibus ab invicem segregatis caste vivatur nec ad alias Nuptias alterutra vivente convoletur Constit Eccl. An. 1597. upon these Arguments pro con Doctor Hammond in the forecited place doth conceive that the Resolution may be made by these three propositions 1. That by the force of Christs words in all the Evangelists he that Marries again after any kind of Divorce but that one for Fornication doth commit an Vnchristian sin 2. That by force of the Arguments first produced for the interpreting Mark and Luke by Mat. 19. 5. vid. Doctor Hammond of Divorces fol. 452 453. it may be probably concluded that in that one case of Divorce for Fornication the Marriage of the Innocent party shall not be Adulterous 3. That although this be granted yet the words of St. Mark and Luke especially the words of St. Paul 1 Cor. 7. 39. do give such prejudices against Marriages after Divorce indefinitely that the ancient Canons of the Church and the Constitutions of our English reformation have thought fit not to permit such liberty in any kind and therefore that this may be the better observed the decree of separation shall not be pronounced till they that demand it shall give sufficient security that they will do nothing against the Admonition and Prohibition for our Constitution adds Denique quo illud firmius observetur sententia separationis non antea pronunciabitur quam qui eam postulaverint Cautionem Fidejussoriam sufficientem interposuerint se contra monitionem prohibitionem nihil commissuros which if not observed by the Judge he is punishable and the Sentence of Divorce for such defect declared void Constit Eccl. an 1597. Innocent the first Bishop of Rome saith Qui interveniente repudio alii se Matrimonio copularunt in utraque parte Adulteros esse manifestum est c. But the said Judicious Author conceives that of this and the like Testimonies it may be observed that most of them belong not to these Divorces which are in case of Fornication but proportionably to Christ's words in St. Mark to those which according to the Jewish or Imperial Laws were allowed in other Cases than what either Christ or the Primogenial institution of Marriage had allowed of And further saith that it is evident and confessed by all Christians that of These that is the Marriages after such Divorces by the Jewish and Imperial Laws are Adulterous but not so of those other Marriages of the innocent parties after those other Divorces in that one Case of Adultery Yea and some Canons have been made with this Temperament expresly except in the case of Fornication so in the second Canon of the Council of Vannes eos qui relictis uxorihus suis sicut in Evangelio dicitur excepta causa Fornicationis sine Adulterii probatione alias duxerint statuimus c. They that have left their own Wives as it is said in the Gospel except for cause of Fornication and
without proof of Adultery shall have Married others we judge them c. Notwithstanding which the Law tells us of other Cases than that of Adultery or Fornication wherein the Man after a Divorce may re-marry during the Life of the Woman Divorced as in the Case of Arctitude which you may find in Summa Astensi Lib. 8. De Divortio propter impotentiam Tit. 37. fo 233. Si Arctatio alligetur subaudi quamcunque impotentiam Foeminae statim potest Divortium Fieri hoc modo viz. vocabuntur Matronae fide dignae in Nuptiali opere expertae Ar. F. de Ventr inspect l. 1. verb. igitur c. Et si Mulieres asserant eam non posse fieri Naturaliter Matrem tunc statim potest Divortium fieri et dabitur viro Licentia cum alia contrahendi It will not be denied but that in all Cases where the Marriage was ab initio Null there it shall after a legal Divorce be free for either party convolare ad secundas Nuptias altera parte existente which strictly and properly cannot be said to be a second Marriage because precedent to it there was duly and legally none nor therefore can they be properly said to be Divorced Separated or put asunder that never were de jure put together Among the several kinds of these Null Marriages may be computed that which Panormitan speaks of in his Fourth Tract de Sacramentis Resol 201. Foemina says he there si commode non potest aptam se reddere viro impedimentum censendum esse perpetuum Matrimonium declarandum Nullum which holds true vice versa and therefore it is likewise said that Foemina per contractum Matrimonii jus suum tradit viro apto non inepto atque in non aptum nullum transfertur jus The Canon Law is express in prohibiting these second Marriages after a Divorce although Ex causa Fornicationis So Tostatus verb. Matrimonium ubi voluit nullam esse Causam Repudii nisi Fornicationem Et istam non quidem simpliciter ad Dirimendum Matrimonium sed ad tollendam Cohabitationem ut patet Extra de Divort. c. Gaudemus The Lawyers and Divines says Adam Tannerus are of different opinions in this point Juristae Divortii voce utuntur pro Dissolutione Matrimonii etiam quoad vinculum ut constat ex toto tit F. De Divortiis Theologi tamen ea voce Divortii solam significant separationem inter conjugeâ— aut quoad Cohabitationem aut quoad Thorum Adam Tannerus Tom. 4. Disput 8. de Matrimonio q. 5. Dub. 5. nu 74. de Divortio 4. In concilio Arelatensi which was held in An. 314. at the command of Constantine the Great under Pope Silvester in the first Year of his Papacy it was Canoned Vt is cujus uxor adulteravit aliam illa vivente non accipiat Sir Hen. Spelman gives the words of this Canon thus viz. De his qui Conjuges suas in Adulterio deprehendunt iidem sunt Adolescontes Fidâ—â—es prohibentur Nubere placuit ut in quantum possit Consilium iis detur nè viventibus uxoribus suis licet Adulteris alias accipiant If this Canon be not directly prohibitory and against second Marriage after Divorce in Case of Adultery during the Life of the other Party yet it provides that Counsel or Advice in the Case be given against it and the Parties monished to the contrary 5. Mr. Atturney Noy in Dame Powels Case reports that a Divorce causa Adulterii is but à mensa thoro non a vinculo Matrimonii and the reason he gives is this viz. Because says he the offence is after the just and lawful Marriage if for this Opinion of his any Anticanonist should dream that he died in the Catholick Faith of Matrimonial Sacraments let him consult Sir Edward Coke in the Third part of his Institutes where he doth not only allow of that Member of the foresaid distinction but withall says that in the Case of Divorce à Mensa Thoro the second Marriage is void living the former Wife or Husband Yet in Bury's Case he reports it to have been adjudged that by a Divorce the Marriage is dissolved à vinculo Matrimonii and also resolved that admitting a second Marriage to be voidable yet it is adjudged that the same doth remain in force until it be dissolved and that the Issue born during such second Coverture is a lawful Issue to inherit the Land 6. Touching the kinds and effects of Divorce whether Divorce à vinculo Matrimonii or separation only à Mensa Thori with the causes thereof the Divines and Lawyers are of different Opinions and each of these divided among themselves some conceive that as there be Divorces Ex Causa praecedente so there are some Ex Causa subsequente as Causa Adulterii and that Adultery dissolves the very Bond of Matrimony which consisteth in their being one Flesh And whereas it is written That whosoever shall Marry her that is Divorced committeth Adultery they will have it to be meant only of such as shall Marry her who is Divorced for any other cause or reason than for Fornication which they inferr from the former part of Mat. 5. 32. that whosoever shall put away his Wife saving for the cause of Fornication causeth her to commit Adultery so that for the cause of Fornication it is lawful to put her away and whosoever shall Marry her that is say they Divorced for any other cause committeth Adultery whence they would inferr that a Remarriage after Divorce for the cause of Fornication is not forbidden And as for that Divorce or Separation à Thoro Mensa they look on it as no current Coin not having as they pretend Caesar's Image or Superscription thereon but seem very positive in affirming that Phaâ—isaei interrogabant Christum de dimissione quoad vinculum non quoad Thorum mensam It is true indeed by the Judicial Law a Woman Divorced from her Husband in causa Adulterii might be another Mans Wife which is no contradiction to Mat. 5. 22. if the Divorce there mentioned be à vinculo But that which such as are for Post-repudiary Marriages much insist on is that which the Reverend Mr. Beza hath on the like place Qui hinc colligunt says he post Repudium Nullum esse secundo Matrimonio locum altera parte existente inepte colligunt loquitur enim Christus de Repudiis apud Judaeos usitatis inter quae numerari non potest Repudium ob Adulterium cum Adulteros ex lege oportet Capitali poena plecti 7 If ingressus in Religionem be as some understand it a kind of Mors Civilis then it should seem it might be for that reason that in such case it was lawful for the other Party convolare ad secundas Nuptias for by the 118 Canon of Egbert Archbishop of York An. 750. called Canon Affricaâ—ensis in exceptionibus suis è Canonibus
Scorto Natus in Ecclesiâ—m Domini usque ad decimam generationem Yet the Pope doth usually dispence with that Canon specially where such Illegitimates live commendably and follow not the vicious practice of their Parents In illis qui paterna vitia non sequuntur possunt suffragari virtutes quae inducent Sâ—mmum Pontificem ad Dispensandum si morum honestas eos Commendabiles reddat c. Presbyterorum 56. Distin And lest such should conceive themselves causlesly injured by that Prohibition the Canonists assign three Reasons for it the one is the Dignity of the Clergy and the Sacraments which ought not to be committed to Infamous persons Another is in detestation of their Parents Crime which commonly extends also to their Children The third is the Parents Incontinency and because the Children do for the most part inherit their Parents Vices cap. Si gens Angelorum 56. Distin Yet a Modern Historian speaking of Pope Leo the Seventh An. 935. says out of Luitprandus that Bozon Bishop of Placentia Theobald of Millain and another great Prelate were all the Bastards of Hugo King of Italy by his three Queens Bezola Rosa and Stephana whom he termed Venus Juno and Semalo vid. Prideaux 's Compend Introduct of Hist p. 106. Edit 5. Next follows the matter of Divorce which is the separation of Married persons by force of the Sentence of an Ecclesiastical Judge qualified to pronounce the same Adultery in either party is the common though not the only cause of Divorce Some there are it seems of great Reputation in the Church for this is Quaestio tam Theologiae quam Juris who positively condemn it as unlawful for a Man or Woman to live with their Husband or Wife respectively if either of them be notoriously guilty of Adultery Of which Opinion was St. Hierom saying That a man is Sub maledictione si Adulteram retineat And St. Chrysostome Fatuus iniquus qui retinet Meretricem Patronus enim Turpitudinis est qui celat Crimen uxoris So that it was none of Cato's wisdom nor any great piece of kindness done his Friend Hortensius to lend him his wife Martia whose Chastity deserv'd a better requital Socrates also is reported to be as kind-hearted in this matter as ever Cato was and they are both said to lend their Wives as freely as a man lends an Utensil As these Wife men were beyond the reach of a Diovorce so they were more serious than to blush at Cornutism the common Fate of such Philosophers St. Basil was of Opinion That it was lawful for a Woman still to cohabit with an adulterous Husband to which purpose he made a Canon and commanded it to be done in his Church as appears in his Epistle to Amphilochius 1. Can. 9. 21. This also was the Sentence of St. Austin to Pollentius and in his Book de Adulterinis Conjugiis David received his wife Michal who had lived with another man St. Basil it seems though he be of opinion that the Woman should still live with the Adulterous Husband yet does not think it fit that the man should be so obliged as to his Adulterous Wife The Council of Eliberis refused to give the Sacrament to a Clergy-man that did not instantly expel from his house his Wife whom he knew to commit Adultery And by the Council of Neo-Caesarea he was to be deposed from his Dignity in the same case In the Council of Trent there was a Canon made having an Anathema added to it which condemned those that say That the Bond of Marriage is dissolved by Adultery and that either of the parties may contract another Matrimony whilst the other liveth And by the Fifth Anathematism of that Council 22. July 1563. were condemned Divorces allowed in Justinian's Code which Anathematism was added at the instance of the Cardinal of Lorain to oppose the Opinion of the Calvinists In the same Council upon the Article of Divorce it was said by one of the Fathers there that the Matrimonial Conjunction was distinguish'd into Three parts the Bond the Cohabitation and the Carnal Copulation inferring that there were as many Separations also and that the Ecclesiastical Prelate had power to separate the Married or to give them a Divorce in respect of the Two latter the Matrimonial Bond still standing sure so that neither can marry again Yet the Gospel admits but of one cause of Divorce viz. Fornication which should seem to be understood de Vinculo because Divorce in the other respects may have many Causes Of all Personal Actions within the Ecclesiastical Cognizance that of Defamation seems to be of the tenderest concern if that be observed which Solomon says That a Good Name is to be chosen before great Riches where by Name nothing can be understood other than a mans Credit Fame and Reputation in the World So that the Inference is clear a Defamer is the worst of Thieves the Sacrilegious ones excepted yet were it not for the sweetness of Revenge and the encouragement of the Law such Actions might be better spar'd than what it costs to maintain them and such ill-scented Suits do savour worse being kept alive in a Tribunal than they would by being buried in Oblivion specially if the Defamed considered that to forget Injuries is the best use we can make of a bad Memory This Defamation is not properly that which we call Detractio for Detractio in its proper signification is alienae famae occulta injusta violatio but Defamation though it be an unjust yet it is not an occult violation of another mans Fame or Reputation they have indeed both the same end but they do not both take the same way to that end they both aim and design the extinguishing or diminishing the Credit and Repute which one man hath in the mind and good opinion of another but the one doth it more openly and publickly at least not in so clandestine way as the other This Defamatio is of near affinity to that which we call Contumelia which is an unlawful violation of a persons Honour and Reputation by undecent and false Speeches Gestures or Actions on purpose to disgrace him only in this also they differ that Defamatio may be of one man to another in the absence of the Defamed but Contumelia is not but to the party present vel absenti tanquam praesenti that is in the prrsence of such as have a relative representation of the person Contumeliously so reproached Touching Actions of Defamation there are two Questions raised rather by the Casuists than Canonists the one Whether the Heirs of the Defamer be obliged to make restitution of Dammage to the Defamed in case the Defamer died before satisfaction made the other Whether satisfaction for the dammage done by Defamation be to be made to the Heirs of the Defamed in case he died before such dammages were recovered by him Although both these Questions are answered in the Negative by
1 Eliz. And it is not within the Statute and although it be within the Commission yet they have not Jurisdiction The words of the Statute are That such Jurisdictions and Priviledges c. as by any Ecclesiastical power have heretofore been or lawfully may be exercised for the Visitation of Ecclesiastical State and Persons and for reformation of the same and for all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities c. These words extend only to men who stir up Dissentions in the Church as Schisimaticks and new-sangled Men who offend in that kind Henden Serjeant The Suit is there for reformation of Manners and before the new amendment of the Commissions Prohibitions were granted if they meddled with Adultery or in Case of Defamations but now by express words they have power of these matters And that matter is punishable by the Commissioners for two Causes 1 There is within the Act of Parliament by the words annexed all Jurisdictions Ecclesiastical c. 2 It gives power to the Commissioners to exercise that And that is meerly Ecclesiastical being only pro reformatione morum c. The King by his Prerogative having Ecclesiastical Jurisdiction may grant Commissions to determine such things 5 Rep. Ecclesiastical Cases fol. 8. And Richardson said The Statute de Articulis Cleri gave cognizance to the Ordinary for laying violent hands on a Clerk But you affirm That all is given to the Commissioners and thereby they should take all power from the Ordinary But by the Court the Commissioners cannot meddle for a stroke in Church-Land nor pro subtractione Decimarum And yet they have express Authority by their Commission for by that course all the Ordinaries in England should be to no purpose And so upon much debate a Prohibition was granted On an Arrest on Christmas-day it was said by Richardson Chief Justice That upon Arresting a man upon Christmas-day going to Church in the Church-yard He who made the Arrest may be censured in the Star-Chamber for such an Offence Quod Nota. It was also said by Richardson that if a man submit himself out of the Diocess to any Suit he can never have a Prohibition because the Suit was not according to the Statute 23 H. 8. commenced within the proper Diocâ—ss as it was Adjudged Quod Nota It the Ecclesiastical Court proceed in a matter that is meer Spiritual and pertinent to their Court according to the Civil Law although their proceedings are against the Rules of the Common Law yet a Prohibition does not lie As if they refuse a single Witness to prove a Will for the cognizance of that belongs to them And Agreed also That if a man makes a Will but appoints no Executor that that is no Will but void But if the Ordinary commits the Administration with that annexed the Legatary to whom any Legacy is devised by such Will may sue the Administrator for their Legacies in the Ecclesiastical Court Note P. 4. Jac. B. R. Peep's Case a Prohibition was denied where they in the Ecclesiastical Court refused a single Witness in proof of payment of a Legacy After Prohibition if the Temporal Judge shall upon sight of the Libel conceive that the Spiritual Court ought to determine the cause he is to award a Consultation And by the Staâ— of 50 E. 3. c. 4. the Ecclesiastical Judge may proceed by vertue of the Consultation once granted notwithstanding any other Prohibition afterwards if the matter in the Libel be not enlarged or changed B. Administrator of A. makes C. his Executor and dies C. is sued in the Ecclesiastical Court to make an Account of the goods of A. the first Intestate And C. now moves for a Prohibition and had it for an Executor shall not be compel'd to an Account But an Administrator shall be compel'd to Account before the Ordinary Resolved by the Court That a Prohibition shall not be awarded to the Admiral or Ecclesiastical Courts after Sentence Also that a Plea was there pleaded and refused which was Triable at Common Law Note A Prohibition was awarded upon the Statute of 23 H. 8. because the party was sued out of the Diocâ—ss And now a Consultation was prayed because the Interiour Court had remitted that Cause to the Arches and their Jurisdiction also yet a Consultation was denied A Suit was in the Ecclesiastical Court and Sentence passed for one with Costs and nine months after the Costs are Assest and Taxed and then comes a Pardon of 21 Jac. which relates before the taxing of the Costs But afterwards the Sentence and that Pardon was pleaded and allowed in discharge of the Costs Then W. who had recovered sues an Appeal and P. brought a Prohibition and well and no Consultation shall be awarded because by the Court that Pardon relating before the Taxation of Cost had discharged them As 5. Rep. 51. Hall's Case B. and Two others sue upon three several Libels in the Ecclesiastical Court and they joyn in a Prohibition And by the Court that is not good But they ought to have had three several Prohibitions and therefore a Consultation was granted Mich. 26 27 Eliz. C. B. If A. Libels against B. for Three things by one Libel B. may have One or Three Prohibitions Note Dyor 171. 13. By the Statute of 25 H. 8. cap. 19. Appeals to Rome being prohibited it is Ordained That for default of Justice in any of the Courts of the Archbishops of this Realm c. it shall be lawful to Appeal to the King in his High Court of Chancery and thereupon a Commission shall be granted c. And by a Proviso towards the end of that Statute an Appeal is granted to the King in Chancery on Sentences in places exempt in such manner as was used before to the See of Rome So that this Court grounded on the said Commission is properly as well as vulgarly called The Court of Delegates for that the Judges thereof are Delegated to fit by virtue of the Kings said Commission under his Great Seal upon an Appeal to him in Chancery and that specially in Three Causes 1 When a Sentence is given in any Ecclesiastical Cause by the Archbishop or his Official 2 When any Sentence is given in any Ecclesiastical Cause in places exempt 3 When a Sentence is given in the high Court of Admiralty in Suits or Actions Civil and Maritime according to the Civil Law That this Court of Delegates may Excommunicate was Resolved by all the Judges in the Archbishop of Canterbury's Case They may also commit or grant Letters of Administration This Court of Delegates is the highest Court for Civil Affairs that concern the Church for the Jurisdiction whereof it was provided 25 H. 8. That it shall be lawful for any Subject of England in case of defect of Justice in the Courts of the Archbishop of Canterbury to Appeal to the King's Majesty in his Court of Chancery and
and used in part by several Nations he compiled them into Volumes and called them Jus Canonicum and Ordained that they should be read and expounded in publick Schools and Universities as the Imperial Law was read and expounded and commanded that they should be observed and obeyed by all Christians on pain of Excommunication and often endeavoured to put them in execution by Coercive power and assumed to himself the power of interpreting abrogating and dispensing with those Laws in all the Realms of Christendom at his pleasure so that the Canonists ascribe to him this prerogative Papa in omnibus jure positivis in quibusdam ad jus divinum pertinentibus dispensare potest quia dicitur omnia Jura habere in Scrinio pectoris sui quantum ad interpretationem dispensationem Lib. 6. de Const cap. licet About the time of An. 25. Ed. 1. Simon a Monk of Walden began to read the Canon Law in the University of Cambridge vid. Stow and Walsingham in that year Also the Manusc libr. 6. Decretal in New-Colledge Library at Oxford hath this Inscription in the Front Anno Domini 1298. which was in the year 26 Ed. 1. 19. Novembr in Ecclesia Fratrum Praedicator Oxon. fuit facta publicatio lib. 6. Decretal whereby it appears when it was that the Canon Law was introduced into England But the Jurisdiction which the Pope by colour thereof claimed in England was a meer Usurpation to which the Kings of England from time to time made opposition even to the time of King H. 8. And therefore the Ecclesiastical Law which Ordained That when a man is created a Bishop all his Inferiour Benefices shall be void is often said in the Bishop of St. David's Case in 11 H. 4. to be the Ancient Law of England And 29 Ed. 3. 44. a. in the Case of the Prebend of Oxgate it is said That though the Constitution which ousts Pluralities began in the Court of Rome yet a Church was adjudged void in the Kings Bench for that cause or reason whereby it appears That after the said Constitution was received and allowed in England it became the Law of England Yet all the Ecclesiastical Laws of England were not derived from the Court of Rome for long before the Canon Law was authorized and published in England which was before the Norman Conquest the Ancient Kings of England viz. Edgaâ— Aethelstan Alfred Edward the Confessor and others have with the Advice of their Clergy within the Realm made divers Ordinances for the government of the Church of England and after the Conquest divers Provincial Synods have been held and many Constitutions have been made in both Realms of England and Ireland All which are part of our Ecclesiastical Laws at this day Vid. Le Charter de William le Conqueror Dat. An. Dom. 1066. irrot 2 R. 2. among the Charters in Archiv Turris Lond. pro Decano Capitulo Lincoln Willielmus Dei gratia Rex Anglorum c. Sciatis c. Quod Episcopales Leges quae non bene nec secundum Sanctorum Canonum praecepta usque ad mea tempora in Regno Angliae fuerunt Communi Concilio Episcoporum meorum caeterorum Episcoporum omnium Principum Regni mei emendandas judicavi c. See also Girald Cambrens lib. 2. cap. 34. in the time of King H. 2. a Synod of the Clergy of Ireland was held at the Castle wherein it was Ordained Quod omnia divina juxta quod Anglicana observat Ecclesia in omnibus partibus Hyberniae amodo tractentur Dignum enim justissimum est ut sicut Dominum Regem ex Anglia divinitus sortita est Hybernia sic etiam exinde vivendi formam accipiant meliorem But the distinction of Ecclesiastical or Spiritual Causes from Civil and Temporal Causes in point of Jurisdiction was not known or heard of in the Christian World for the space of 300 years after Christ For the causes of Testaments of Matrimony of Bastardy and Adultery and the rest which are called Ecclesiastical or Spiritual Causes were meerly Civil and determined by the Rules of the Civil Law and subject only to the Jurisdiction of the Civil Magistrate But after the Emperours had received the Christian Faith out of a zeal they had to honour the learned and godly Bishops of that time they singled out certain special Causes wherein they granted Jurisdiction unto the Bishops viz. in Causes of Tithes because they were paid to men of the Church in Causes of Matrimony because Marriages were for the most part solemnized in the Church in Causes Testamentary because Testaments were many times made in extremis when Church-men were present giving Spiritual comfort to the Testator and therefore were thought the fittest persons to take the Probats of such Testaments Howbeit these Bishops did not then proceed in these Causes according to the Canons and Decrees of the Church for the Canon Law was not then known but according to the Rules of the Imperial Law as the Civil Magistrate did proceed in other Causes so that the Primitive Jurisdiction in all these Causes was in the Supream Civil Magistate and though it be now derived from him yet it still remaineth in him as in the Fountain CHAP. XII Of Churches Chappels and Church-yards 1. Ecclesia what that word imports the several kinds thereof 2. Possessions of the Church protected by the Statute-Laws from Alienation the care of the Emperour Justinian in that point 3. To whom the Soyl and Freehold of the Church and Church-yard belong to whom the use of the Body of the Church to whom the disposal of the Pewes or Seats and charges of Repairs 4. The Common Law touching the Reparation of Churches and the disposal of the Seats therein 5. The same Law touching Isles Pictures Coats of Arms and Burials in Churches also of Assaults in Churches and Church-yard 6. The penalty of quarreling chiding brawling striking or drawing a Weapon in the Church or Church-yard 7. Where Prescription to a Seat in a Church is alledged the Common Law claims the cognizance thereof 8. The Immunities anciently of Church-Sanctuary as also of Abjuration now abrogated and taken away by Statute 9. The defacing of Tombs Sepulchres or Monuments in Churches punishable at the Common Law also of Right to Pewes and Seats in the Church 10. The Cognizance of Church-Reparations belongs to the Ecclesiastical Court 11. A Prohibition upon a surmize of a custome or usage for Contribution to repair a Church 12. Church-wardens are a Corporation for the Benefit not for the Prejudice of the Church 13. Inheritance cannot be charged with a Tax for Repairs of the Church nor may a perpetual charge be imposed upon Land for the same 14. When the use of Church-Books for Christnings first began 15. Chappel the several kinds thereof The Canonists Conceits touching the derivation of that word 16. Where two Parochial Churches are united the charge of Reparations shall be several as before 17. The Emperour Justinian's
is the causes thereof the difference between the Civil and Canon Law touching the proof of impotency frigidity or disability and what manner of proof the Law requires thereof 2. What time of absence in the Husband may cause a Divorce 3. Whether Divorce by reason of Adultery dissolves the Marriage à vinculo or whether the innocent party may remarry altera existente 4. What the Canon in Concilio Arelatense provides in that Case 5. The opinion of some eminent Common Lawyers in this point 6. The different Opinions of Divines and Lawyers and of each among themselves touching this matter 7. The Opinion in summa Hostiens as also of Suarez touching the legality of second Marriage after Divorce 8. The Canon of the Council of Trent concerning Matrimony also the Opinion of some of the Ancient Fathers and a Decree of one of the Popes touching second Marriage after a Divorce 9. Decrees and Histories of great Antiquity relating to this Subject 10. What the Pontifical Law what Justinian what Baldus and what Grotius says in this matter 11. Opinions in this point take their diversification much from the cause of the Divorce as whether ex causa praecedenti vel subsequenti 12. Judgments at the Common Law that a Divorce for Incontinency is only à Thoro mensa non à vinculo 13. What the Law intends by Alimony and what Elopement signifies no Alimony due to her that Elopes 14. In what Cases the Law will allow Alimony or not 15. How the Civil Law provides in that Case of Alimony 16. The Ecclesiastical Court is the proper Court for Alimony 17. Whether the High Commission-Court had power of Alimony or not 18. Prohibition denied to the Husband sued in the Ecclesiastical Court by the Wife for Alimony in causa saevitiae 19. Whether the Ecclesiastical Court may take Bond for Alimony or Imprison for non-payment thereof 1. A Divorce is a Sententence pronounced by an Ecclesiastical Judge whereby a Man and Woman formerly Married to each other are separated and parted The word Divortium or Repudium is often taken promiscuously both for a Total and Perpetual Divorce à vinculo Matrimonii as also for a Partial and Temporal Divorce or Separation à Cohabitatione vel à thoro mensa The causes of this Divorce whereof some are precedent others subsequent to the Marriage are many in the Law Thomas Aquinas reckons up no less than a dozen of them and thinks he hath Poetically compriz'd them all in four Verses viz. Error Conditio Votum Cognitio Crimen Cultus Disparitas Vis. Ordo Ligamen Honestas Si sis Affinis Si forte Coire nequibis Haec Socianda vetant Connubia Facta retractant But the Causes of Divorce in the Law as now commonly practicable may be reduced to these few 1. The Levitical Degrees within which it is prohibited to Marry 2. Precontract And so if a Man Marry one precontracted and have Issue by her it is the Fathers Child until there be a Divorce upon the precontract and then it is Nullius Filius a Bastard 3. Impuberty or Minority And so if two be Married infra annos nubiles and after full age are Divorced for the same the Woman may bring an Assize against the Man for Land given her in Frank-marriage which proves that the Divorce is by that Law from the very Bond of Matrimony 4. Frigidity in the Man or Impotency in the Woman termed Arctitudo in the Law but the word Impotency is promiscuously used in both Sexes for it is said that if after a Man be Divorced for Impotency he take another Wife and have Children by her these shall not be Bastards because a Man may be habilis inhabilis diversis temporibus But in this Case the Civil Law hath made other provision for that Law in causa Frigiditatis requires three years Cohibitation for Trial of the Disability before it doth upon other legal evidence and proof conclude any Married persons either Frigid or Impotent Indeed the Canon Law expects present proof and in case of such Impotency or Frigidity not Accidental but Natural and Incurable concludes that the Matrimony was never a Matrimony The evidence of which Disability depends on the Oaths of able Physicians as also of aged and grave Matrons experienced in such affairs nor is it to be alledged till after a Triennial experience of each other post Matrimonium Consummatum and is a just cause of Divorce for that it frustrates one of the chief ends of Marriage viz. Procreation of Issue if it be sufficiently proved by Inspection of the Body Triennial Cohabitation and the Oaths aforesaid Consil Matrim To. 2. Consil 8. nu 1. And in Cases doubtful whether it did precede the Marriage or not the Law will presume it to antecede the Marriage and consequently nulls it in case it be Natural otherwise both as to the presumption and operation in case it be only Accidental Sanch. lib. 7. disp 103. nu 4. And where the Impotency doth sufficiently Constare to be Perpetual by the Oaths aforesaid upon Inspection there the Triennial probation ceases Vt cum Glossae cap. Fraternitatis De Frigidis Maleficiis Panor nu 11. Pope Sixtus 5 th in his Bull An. 1587. declared that Matrimonia cum spadonibus vel eunychis prorsus eviratis seu utroque testiculo carentibus cum quibuslibet Mulierihus seu defectum praedictum ignorantibus seu scientibus esse semperque fuisse irrita Antonini â—â—ana resolutiones morales Tract 4. Miscelan resol 75. p. 190. 2. There are also other seeming causes of Divorce than what are forementtoned for the Civil and Canon Law do allow of Divorce after a long absence but are not agreed touching the Time of that Absence for in one place it is after Two years Absence in another after Three years in another after Four Cod. lib. 5. tit 1. l. 2. post biennium tit 27. post tres an l. 27. post Quatuor an others hold that the Civil Law requires Five years Absence before there may be a Divorce on that account In the Council of Lateran a Sentence was allowed by the whole Council which was given by a Bishop pronouncing a Divorce for a Woman complaining that her Husband had been absent Ten years giving also leave to the Woman to Marry again In Concil later par 50. cap. 23. But the truth is no absence be it for any time whatever doth properly cause a Divorce in Law Indeed Seven years Absence without any tidings or intelligence of or from the Absent Party will so far operate in Law towards what is equivalent to a Divorce as to indempnifie the Woman from the penalty of Polygamy if in that case she Marry again Also the Canon Law hath decreed that if the Wife refuse to dwell with her Christian Husband he may lawfully leave her Causa 28. q. 1. c. 4. And some of the Imperial Laws allow Homicide Sacriledge Theft Man-stealing c. for
After Verdict upon Not Guilty found for the Plaintiff it was moved in Arrest of Judgment by Grimston that these words are not Actionable For for calling Whore there lies not any Action and to say that her Children by her former Husband are Frambishes Bastards is repugnant in it self for they cannot be Bastards which were born in the time of her former Husband But all the Court held that the Action well lies For to say of a Widow who is in Comnunication of Marriage with another that she plaid the Whore in her former Husbands time is a great Discredit And to say that her Children are Bastards although in truth they cannot be Bastards in Law yet in Reputation they may be so is cause of loss of her Marriage and that none will marry with her wherefore it was adjudged for the Plaintiff 11. Action upon the Case Whereas he keepeth an Alehouse Licenced by Justices of the Peace that the Defendant to scandalize the Plaintiffs Wife spake these words of her Hang thee Bawd Thou art worse than a Bawd Thou keepest a House worse than a Bawdy house And thou keepest a Whore in thy House to pull out my Throat Upon not guilty pleaded found for the Plaintiff Stone moved in Arrest of Judgment that these words are not Actionable but agreed that for saying One is a Bawd and keeps a Bawdy house Action lies because it is a temporal Offence for which the Common Law inflicts punishment But to call one Bawd without further speaking an Action lies not no more than to call one Whore But it is a Defamation punishable in the Spiritual Court And to say That be keeps a House worse thaâ— a Bawdy house hath not any intendment what he means thereby wherefore the Action lies not And if it be intended that such words should hinder Guests from coming thither being an Alehouse the Husband only ought to have brought the Action And as to that the Court absente Richardson agreed But for the other words they held the Action lies by the Husband and Wife for the slander to his Wife and it is as much as if he had said that she keepeth a Bawdy house wherefore it was adjudged for the Plaintiff 12. A prohibition was prayed bâ—cause A. and his Wife sued in the Ecclesiastical Court for Defamation and speaking these words of the Plaintiff He was a Cuckold and a Wittal which is worse than a Cuckold and that Aylsworth had layen with Ayloffs Wife And for these Defamatory words he sued there and because it was alledged that for these words being but words of Spleen Prohibitions had been usually granted day was thereupon given until this Term to shew cause why a Prohibition should not be granted and divers presidents were shewd that for calling one Cuckold or Whore Prohibitions have been granted But now upon advertisement all the Court agreed that no Prohibition should be granted but that the Ecclesiastical Court should have Jurisdiction thereof For although they agreed that there ought not to have been any Suit for the first words they being too general yet being coupled with a particular shewing that the Wife committed such an Offence with such a particular person they be not now general words of spleen in common and usual discourse and parlance But they held it was a Defamation suable in the Spiritual Court whereupon the Prohibition was denied Brownlow chief Protonotary produced on that occasion several presidents where Prohibitions had been granted to stay Suits for such words viz. Trin. 15. Jac. rot 2260. Purchas vers Birrel for that he was presented at several enquests within his Parish for being a Drunkard and a Barretor And Pasch 6. Jac. rot 397. Prohibition to stay a Suit for calling a Parson Hedge-Priest And Mich. 21. Jac. Barker vers Pasmore She is a Quean and a tainted Quean Prohibition granted 13. H. Prays a Prohibition to stay a Suit in the Spiritual Court of Defamation for speaking these words Thou art a Bawd and I will prove thee a Bawd And because these are words properly dererminable in the Spiritual Court and for which no Action lies at the Common Law a prohibition was denied But for saying Thou keepest a house of Bawdry this being matter determinable at Common Law by Indictment Suit shall not be in the Spiritual Court vid. 27 H. 8. and Co. lib. 4. fo 20. 14. Prohibition was prayed to the Ecclesiastical Court to stay a Suit there for Defamation for these words Thou art a Drunkard or drunken fellow And by the opinion of Croke Jones and Berkley a Prohibition was granted For these words do not concern any Spiritual matter but meerly Temporal and they be but Convitium Temporale and a common phrase of brawling for which there ought not to be a Suit in the Spiritual Court and so it was held in Martin Calthorp's Case in C. B. but Richardson doubted thereof because the Spiritual Court as well as the Temporal may meddle with the punishment of drunkenness so it is not meerly Temporal But he assented to the grant of a Prohibition and the Party may if he will demurr thereto whereupon a Prohibition was granted 15. Prohibition was prayed by Bulstrod for Gobbet to stay a Suit in the Spiritual Court for Defamation in speaking these words He is a Cuckoldly Knave and cited presidents that for saying He is a Knave and a cheating Knave Suit being in the Spiritual Court a Prohibition was granted upon good advisement and the Court said that president is not like to this Case for there was not any offence wherewith the Spiritual Court ought to meddle but in this Case for these words it is properly to be examined and punished there pro reformatione morum for it is a disgrace to the Husband as well as to the Wife because he suffers and connives at it whereupon absente Richardson the Prohibition was denied Again it was moved that this should be granted upon the Statute of 23 H. 8. because he was sued in the Court of the Arches which is in the Archbishops Jurisdiction and the words were spoken at Thistleworth in London Diocess as appeared by the Libel But Jones said that he was informed by Dr. Duck. Chancellor of London that there hath been for long time a composition betwixt the Bishop of London and the Archbishop of Canterbury that if any Suit be begun before the Archbishop it shall be always permitted by the Bishop of London so as it is quasi a general License and so not sued there but with the Bishops assent and for that reason the Archbishop never makes any Visitation in London Diocess And hereupon also the Prohibition was denied 16. Action for that the Defendant had said of and to the Plaintiff being of good same and one who had served as Captain in the Wars haec verba in London Thou art a Pimp averring that in London that word was known to be intended a Bawd and further said that he