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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

have their final Judgment at Common Law will meet with a ready and free consideration I doubt not with our Common Law Judges since they are so untowardly and contingently carry'd in these Commissions that their proceedings meet with a general dissatisfaction as they are a mighty Gravamen to the Litigants That which I have to say in this matter had need be very clear since the notion may seem new and a great prejudice lys against it But it will appear not new before I have done with it the premises from which I conclude it be all agreed to me and the Conclusion I make from them will be clearly inferd It will appear to be as useful as true and therefore I hope have a favorable Reception I do not intend to controvert or bring into Question the Right of the Ecclesiastical Courts to judge in all Causes of Offence against the Laws of Chastity and the Enforcement of the performance of the conjugal Rights And to compel the Precontractators to proceed to Marriage and perform the Conjugal dutys They may retain a Cause de jactitatione maritagij for that the common Law allows no action of the case without special Damnification tho in it self it carrys with it a prejudice and is a very great incumbrance fit to be removed by the Authority of a judicial Sentence As also in a promise of a Marriage where there hath been any Execution of the Agreement to enforce a Marriage These two last Order of Causes belongs to them upon the same reason as Performance of Covenants in kind and Examination of Witnesses in case of pretence of title in perpetuam rei memoriam belongs to the Court of Chancery that is as a derelict of the common Law and for a further Reason for that matter may be concern'd and mov'd in these Causes which are not so becoming our more publick Tryals at common Law To the Ecclesiastical Court belongs all Causes of Divorce and the Punishment of incestuous Mixtures where Marriages are void which our Law ought to judge and all other sins of incontinence which are most aptly punished with shame a restraint of the same Nature which God hath planted in our Nature for the bridling those natural Appetits which betray Men into such inordinacys And in this our Government most commendably follows the Indication of God himself in our Nature I have a great Honor for the Gentlemen of that faculty and do not envy any matter of judicature that truly belongs to them I do believe a true civilian that hath the Learning that belongs to that faculty to be the best accomplished Man and of the most universal Usefulness to the World and if all Causes of Matrimony were assigned to be judged only by Men of that Faculty and not by miscellaneous and fortuitous Heap of Men which make the Delegates in most Causes This Cause of Mr. Emmertons Marriage had not been so afflicted and vexed and prejudiced by Reasons which publickly to mention would I fear be accounted a Libel against the Government for the Eminent Drs. of that faculty have acquitted themselves honorably in the Cause and have given Reputation to the Cause of Mr. Emmerton under all the discountenance that hath been cast upon it for little other Reason than from the disparity in his Condition with that of the rival Litigant It is not I declare any Exception against the Justice of the civil Law-Courts or against their Law that moves this Question But the meer Right and Cumbersomness and vast unweildyness of these Commissions of Appeal And for that whatever shall be the chance issue of this fortuitous Commission It may be undone by virtue of a prohibition out of the Kings Bench which as well reverseth sentences after they are pronounced for that the matter belonged not to that forum as it doth inhibit their procedure where it comes in time To prove that matrimonial Causes are not of Ecclesiastical Cognisance I shall now proceed Matrimony is as old as the World and it will be hard in the search of History to find a time when any People was without that institution longer then without Government Marriages and Familys were before Government but Governments every where in all Ages injoyn'd them dishoner'd and disgrac't Fornication and concubinat honor'd Chastity and made Whores infamous Marriage was no invention of Priest craft as a prophane immoral man in Leud Rhime dare pronounce Poet he ought not to be called that title which might belong to his inventing faculty he hath forfeited by his impiety and immorality Poets were the antient Theologues and Teachers of manners he that is a Poet ought to know Quid deceat quid non quo virtus quo ferat Error Hor. Art Scribendi rectè sapere est principium fons Poet. This Mans owes all his esteem to the Debaucherys of the Age If the People should recover their Wits which they have lost with their manners they would use him as the People of Athens did Dionisius at the Olympick Games for his wicked Poem tho they at first were taken with the composition It is no matter who such a man disgraceth that publickly blasphemes reviles Marriages and the Laws of Chastity such publick impudence qualifies him to say or write whatever is false whatever is evil he is bad enough to disgrace the worst of Men and the worst of Causes Marriages were every where injoyn'd by Governments and promoted assisted and conducted by Laws and Acts of state and the liberty of marriage had more or less restraint as the Laws of several Nations did appoint The Greeks Romans and Germans forbid polygamy But the Easterlings allow'd it The Romans made those marriages unlawful which the Law of Moses made so and also forbid other marriages that were not by the Mosaical Law prohibited as for Example The marriage of the Uncle and Neice which the Law of Moses doth not forbid tho it forbid's the Nephew to marry his Aunt or Uncles Wife But the Asiatick's us'd a licence of polygamy and permitted all marriages but those that the Roman Law call's Nuptiae nefariae i. e Between Parents and Children and even such marriages were sometimes committed amongst them But causes of marriages were alwayes and every where judged by the ordinary Courts of Judicature and as other contract 's were judged The Law 's of mariage were not dictated by the Priests but enacted by the Legislators neither did ever any forum belong to the Priest hood in that capacity before Christianity It was not the office of the Priest's of the pagan Religion to instruct the People in moral 's or to guide their Consciences by the rules of virtue for this they were beholden to their Phylosophers and Poets paganisme was a Religion divided and abstracted from morality That did neither teach it nor enforce it their Priest's were Sacraficers Conjurers and Sooth Sayers and no office did belong to them that referd to the state except in difficult affaires of state to serve

enjoy'd the honours of their Ancestors from whom they vilely degenerate But besides the advantages that we derive from this State of Marriage to our whole kind in the better providing for the Improvement of humane Nature and the accommodations of life it doth immediately confer an honour and dignity upon our nature when we do those Acts that are common to us with the Beasts we do not in this State perform them brutally They are the effects rather of Friendship than Lust and a kind of Chastity belongs truly to these Amours By the Enclosure of this State we have acquired Modesty to our Nature Thereby the very Appetites of Nature are duly retrench'd and brought into Rule and this by Example becomes a Bridle and Restraint to the Younger Sort before they come under the guidance of Reason and Understanding and directs the Natural Pudor to take care of their Chastity Whilst we stand to the Obligations that this State puts us under we are free from the Incontinency of a Vagabond Lust which is infinite unbounded and unsatiable it befools as many as it possesseth and makes them become Vain and light to Contempt utterly useless to any Manly purposes betrays them to Gluttony and Sloath and an incurable Voluptuousness leaves them without Soul and without Vertue sinks them into a low and Brutal Life and leaves them without fear of God or regard to Men and makes them the vilest Knaves gives them a Languishing and Spiritless Health and often precipitates them into a nasty and squalid Old Age and a hasty Death they are always persecuted with contempt and dishonour whilst they live and their Children Inherit their Shame fore that they are Sinners against the Laws of Modesty and Decency which this State hath Introduced and Dishonour Humane Nature and Violate that Natural Pudor by this State directed and fortified which so directed the Moralists call Pudicitia which once lost is irreparable Laesa pudicitia est nulla reparabilis arte I had not made this Digression but that I fear The Contempt that this Licentious Age hath brought upon Marriage gives occasion to less considering Men to trifle with Matrimonial Causes but the mischiefs that are consequent upon the contempt of Marriage have sufficiently Reveng'd the Indignities done to that State and Vindicated its Honour viz. Spurious and Degenerate Broods as vile in their Manners as they are vilely Got and worse Bred. And hence it is that the greatest Families often last not longer then the single Life of a Virtuous Man Conjugium rem Esse vere saeram non humanitùs sed divinitùs repertam magno consensu gentes crediderunt saith Grotius And they who truly consider the matter must thus conclude Marriages agreeably have been every where hollowed with holy Rites the Offices of Religion and the Benedictions of the Priests it being a State directed to and capable if blessed by God of producing and ministring to many inestimable Benefits to Mankind Marriages have been in all Ages every where celebrated with festival Joy and Mirth and every Man hath a Congratulation for the new married Couple as if it did import some common and universal Good Many priviledges have been granted to this Estate to invite and encourage it it hath sometimes been made necessary and enjoyn'd by Laws The Jews take themselves oblidg'd to marry and that early too and did allow only a temporary Dispensation for publick good to men that might in that interim of time make themselves very useful to the publick The Entry into that State made easy and expedite discharging Conditions that lay any Restraint upon our Liberty of Choice where we are capable of choosing The Government hath provided Formula's for this important contract that the contractors may not be deceived in their intention for want of words significant to that purpose and operative of that contract but in these their Provisions they have not inserted any verba irrtiantia and made the Marriage void if the words used by the contractors do conclude to that contract though they do depart from the Form Ceremony prescribed and kindly directed by the Government in favor of that state Governments enjoyn publick Marriages that they may be better attested and that that sacred contract be not frustrated and defrauded but they do not annul clandestine Marriages And certainly a greater violence was never at any time done to Nature nor any absurdity greater enacted by the infamous Councel of Trent than that Councels declaring clandestine Marriages to be null and void The forms of espousing amongst the Jews were easy in few words obvious no certain Form enjoyn'd Some of them I will recite out of Maimonides Ecce tu mihi es per hoc disponsata Ecce tu mihi tum hoc es in Vxorem mea es es mea accepta es in potestate meâ but the more common Form was En disponsata mihi es hac re secundum ritum Masis Israelis He also relates the Law to be thus Viz Vir potest Mulierem desponsare quîvis Linguâ quam ipsa intelligat modo verbis vtatur significationem talem ut modo dictum habentibus But when Marriages were to be dissolv'd by Divorces in favor of marriages and in disfavor of Divorces rather permitted as used amongst them than allowed or approved It was required that there should be a Bill of Divorce and in this they require abundance of Ceremony and Form as well about the writing of it as the delivering to make it difficult and unfeasible or very easily defeated that so upon the abatement of the husbands displeasure the marriage may be redintegrated by some matter of Exception to the Bill of Divorce about which there were a Number of Questions even to the Ink and Pen wherewith it was written the number of the lines and the Figure of the Letters A precontract or inchoat Marriage is indissoluble tho in other Affairs the Rule of Law which almost universally obtains is Nihil actum videtur quam diu aliquid superest agendum But such effect this Precontract hath that it disables and rescinds any subsequent Marriage tho Children are born in the after Marriage and tho the Person married to the Precontractor was nescient of the Precontract and no Dolus malus imputable to the Person so married The matrimonial contract being founded in Nature and made sacred by Divine institution being necessary to mankind and producing the greatest Benefits becomes thereby the more sacred and inviolable and can therefore be more early made and agreed and for this reason the Persons are reckoned competent to make a valid marriage at such an age at which they cannot oblige themselves with effect in any other affair or concernment nay then when they can scarce by any Act render themselves criminal and are scarce Pilii praecepti as the Jews call them The mans consent at 14. and the Womans consent at 12 is unalterable and irrevocable for that besides at these Ages they can make

and she it may be dare not have own'd it to her defeated Husband The Clerk that marry'd which is to be complained of was notoriously corrupted by threats and promises to deny the marriage Under these temptations he is a notorious falsary in what he thus saith to avoid the marriage and yet what he saith under these circumstances in affirmation of the Marriage is rejected as not credible upon this general rule falsus in vno falsus in omnibus when there can be no greater Evidence in the World of the reality and truth of any matter then violent and lend endeavors to have it disbelieve Except it be the testimony of the Man himself thus practis'd with on the behalf of that matter thus endeavored to be suppressed A clearer Testimony was never given to our Saviour of his Divinity then when he was acknowledged by the Devil the Father of Lyes to be the Son of God But after all this the terms of marriages are made yet harder by the nature and constitution as generally apprehended of our Judicatures that are to judge in matrimonial Causes which if legally such as it is generally taken to be we shall continue unhappy in this matter until we have a Law for our redress therein But the grievance is so great and the contrivance therein so little commendable for the Honor of our Nation that I shall offer some Reasons to your better consideration to prove that the Ecclesiastical Courts have at this time no Judgment in matrimonial Causes but that the right as well as the fact of marriages are cognoscible only in our common Law-Courts At present the fact of a marriage is try'd and judged in our common Law-Courts The right of a marriage is litigated in the Ecclesiastical Court Thus the question of right and the question of fact which are inseparable in true Judgment are divided After the common Law hath enquired into the truth of the Marriage the Ecclesiastical Courts upon a pretence of having the Judgment in the Question of Right whether the marriage be lawfully made they proceed to falsify the Verdicts and Judgments in our commen Law-Courts and to hold Plea whether the Marriage was de facto made or no which is all the matter in Judgment in that Court after it was setled in its proper Judicature And so we have two thwarting Judicatures that are not subordinat and yet this is not all whilst the matter hath been clear'd on Mr. Emmertons behalf in the Court of comon Law and consequently he ought to have all the rights of a Husband possession of his wifes Lands and of her person The Chancery interposeth that hath no manner of Cognizance in the Cause neither of the right or fact and at pleasure sequesters and disposeth of the Estate and Mr. Emmerton must content himself with Alimony at the allotment of that Court as if he were the Adulteress But it is notorious to the World how dilatory that Curia Christianitatis is which allows so many appeals and so expensive That if Mr. Emmerton had not marry'd young he might have been superannuated for Marriage before the controversy is ended and if his Fortune had not been considerable he might have wanted bread more than a wife besides that they have given Judgment against him by the delay and he hath lost his Wife except she be reclaim'd by a very improbable repentance For want of a timely remedy he hath lost his wife irrecoverably and it is not in the power of any Court to restore her to him for she hath now alien'd her affections inveteratly He hath lost her by the delays of the suit and the countenance therein given to her pretence hath engaged her in great difficultys A suit which supports it self by such means as use to feel the power of a Star-chamber It was accounted a vile Crime amongst the Jews and forbidden by the 10th Commandment Thou shalt not covet thy Neighbours wife to breed and foment a dislike in the Husband towards the Wife to provoke him to divorce her to the purpose to marry her But this is a far worse Crime than they were capable of acting for they have wrought the Wife between dislike and enjoyment to divorce and abandon her Husband a thing monstrously wicked and very unnatural And of this Crime the delay that hath been given to this Cause is chargable I am glad it is imputable to things only which have no conscience and not to Persons that have But this is not all Mr. Emmerton knows he was marry'd to Mrs. Hide and cannot be free from his Marriage nor marry another without committing Adultery since no Authority can dissolve the Marriage and the declaratory Sentence of a Court that they were not marry'd cannot alter the truth of the case but he is still her Husband and this all the Canonists will acknowledge for that matrimonial Causes do not Transire in rem judicatam neither can the Marriage be dissolved by any misbehavior of the wife a Sentence of Divorce doth not dissolve the Vinculum Matrimonii and therefore he can much less in the opinion of these Courts discharg himself from the marriage Bond So that there had need be a very clear Evidence such as carrys no doubt with it that can warrant a Nullity sentence that is charged with such mischiefs and inconveniencys But this cannot be the true State of the Evidence in this Cause since notwithstanding all the Art used to lessen the certainty of the Marriage and bring it into some doubt the greatest Authority hath been for confirming the Marriage in all the instances of the Causes Nay the best managers of the Cause on the behalf of Mrs. Hyde have apply'd themselves not so much to invalidate the Evidence as to disgrace the Person of Mr. Emmerton and to provoke thereby an Envy against his Right to the Lady which ought not to be endured by any Court much less ought it abuse and by as the understanding of a Judge and corrupt his Judgment But such hardships and inconveniencys as these will not be considered and are hard to be prevented in such Commissions as are issued out in this Cause In which Men are named not for known Wisdom and sufficiency to judge and determine Causes in this Nature but for the greatness of their Quality No Man can act beyond his sufficiency and in a doubtful Cause as all Causes are doubtful or with little skill may be made so to Men that have none The consideration of Friendship will determine him that cannot govern himself by the Merits of the Cause or will not guide himself by the Judgment of Men of the best Authority and Reputation It is very hard to be judged by any Man whose Honour doth not depend upon right judging and where the Error in judging may be with more probability imputed to the want of skill and incompetency than to wilful Mistake So that a probable opinion that this cause and others of the like nature ought to