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-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
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
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
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 consideâ—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
Friendship and chuse their Companions and can separate out of many some one with whom they are more particularly delighted and pleased with a propenseness of affection and entertain one an other with a pure and undesigning love and complacency not at all sullied with the Passion of concupiscence and Marriages that are made upon such inducements under the guidance and allowance of their Parents and Tutors if all things else are agreeable are most apt to prove the most chast happy and undefiled Marriages The Law is wise and good that allows them the inducement upon which it is grounded is reasonable and the Law it self commendable But however Law it is and to that as to the measure of right we must determine our selves and conform our Consciences A present sufficiency to Acts of Venery is no necessary requisit to the making of that Contract rate andâ—firm â—â—Neither is the performing of them necessary in any degree to the making the matrimonial contract compleat by that contract indeed the Man and Woman respectively have a right to each other but no right can be created by the Exercise of that right I have often observed with great pleasure the Marks of Divinity in the Law of Moses and in the institutions of that Common-wealth but in nothing more then in the cleanness of that Law of which I shall remark one Instance to the present purpose there was amongst them appointed Espousals before they proceeded to marriage which could not be rescinded any other way but as marriages were undone and that which was adultery in the woman after marriage was accounted and punish'd as adultery after the Espousals and before the marriage but infamous it was to contract those Espousals 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or concubitu as it is amongst us to marry upon the first interview This interim between Espousals and Marriage was design'd for conciliating a Friendship between the Espoused Persons such a love that might support the happiness of that conjugal Estate and last when the fervors of lust were abated very necessary to that salacious People who without such provision would have had greater pleasure in matrimonio quam marito nuptiis quam in nuptâ and the marriage State must then needs have been very transitory when they had the liberty amongst them of divorcing And this Law and practise Lycurgus transcribed for the Common-wealth of Sparta So little is the business of Concubitus to be had in Consideration by the Virtuous and wise considerers of what is necessary and convenient to the making the State of Marriage happy and virtuous and blessed with a lasting Friendship as also what is precisely requisite to the making a Marriage So great assurance this contract gives us and such Reputation all Law-givers give to the faith of marriage for the quieting of Jealousy and Caprices and curious Enquirys of suspicious Men and for the peace of Familys and for the encouraging that State and to distinguish it from a loose Concubinat That the Husband is presum'd to be Father of the Children when he cohabits with his Wife and will not suffer the legitimacy of a Child born in marriage to be litigated and disputed And indeed it cannot be disputed for filiation cannot be prov'd or disprov'd and no Judicature ever allowed any allegation to such purpose an allegation of this nature is not more injurious to the Person to whom it is objected then it is against the sacred rights and priviledg that in all ages have been constantly acknowledged zealously asserted necessarily to result from the matrimonial State It is no less iniquity to form his Judgment by any respect to such suggestion whencesoever it comes or to his own surmise The matrimonial contract between competent Persons canot be really prejudiced by any mistake in Judgment or by any Laws whatsoever of human legislation in derogation thereof The rights that result from marriage differs in this from all other rights whatsoever this may seem strang But for this I have the Authority of an universal consent of the Drs. of Canon and civil Law who all tell us That a sentence against a marriage doth not transire in rem judicatam whatsoever can be submitted to judicatures and is under the Government of Laws the right of the matters submitted is such as the Judgment of the Court of the last resort makes it and whether the Judgment be right or wrong according to the natural reason of right Justice it matters not And if the defendant before had a right the right to the things in pretence by the Judment for the Plantiff ceases to be the Defendants right any longer and can be no longer possessed without a publick injustice all those things that are in our power to give or alien may be thus forfeited to the constitution of the Government under which we are and of such causes it is true Praetor jus dicit quum iniquum decernit But in all matters wherein any Law of God hath interposed really or in general opinion in matters that are bound upon us by an Oath or a religious Vow in a matter lawful whereby we have a Conscience towards God no human Authority can make us safe if we depart from the rule of our own Conscience Decrees of Councels and Laws of Princes cannot change a Mans understanding neither can sentences in matters of this nature take the conscience in Execution and Execute themselves by changing the mind and enforcing a belief upon the understanding and for this reason our Canonists and Civilians conclude that matrimonial causes do not transire in rem judicatam They can punish and afflict the Person disgrace the marriages upon strong Presumptions in fact against the pretended marriage or for that marriages are made otherwise than as Laws or Canons for preventing inconveniences have directed But they who know the truth of the fact and are under the obligation of a contract made in pursuant of Gods institution and not contrary to any injunction of his appointment must as much as in them lyeth and as is possible for them perform fulfil and observe it and their Consciences are onerated with it everlastingly and cannot be discharged by any nullity Sentence whatsoever Such Laws as are made arbitrarily for the restraining of the liberty of marriages permitted or not prohibited in first nature If they do use only prohibiting words and not add express words that a marriage so made shall be null and void a marriage prohibited is not therefore null and void for though it may be very convenient to make further a restraint in the matter of marriages than Nature peremptorily enjoyns and in such Laws the rule holds Quod fieri non debet factum valet obtains Tho not further then reason of Decence and General convenience doth perswade which is always the rule to refined understandings and where there is a perfect virtue Yet human Laws which command and not perswade are never interpreted to onerate the Conscience nor are intended beyond