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cause_n	effect_n	natural_a	nature_n	4,625	5	5.6875	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A64753	The reports and arguments of that learned judge Sir John Vaughan Kt. late chief justice of His Majesties court of Common Pleas being all of them special cases and many wherein he pronounced the resolution of the whole court of common pleas ; at the time he was chief justice there / published by his son Edward Vaughan, Esq.	England and Wales. Court of Common Pleas.; Vaughan, John, Sir, 1603-1674.; Vaughan, Edward, d. 1688.	1677 (1677)	Wing V130; ESTC R716	370,241	492

particular being a part of that Law the Temporal Iudges had no Conuzance after this Act more than before and that this Act excepting in the matter of Marriages to the fourth Degree and onwards which it declares not to be against Gods Law was only directory to the Ecclesiastick Courts as the former Statutes were and gave the Temporal Courts no Iurisdiction to prohibit questioning any Marriage but those of Cosen Germans and onwards But the Judges of the Temporal Courts have long since and often after the Act of 32 H. 8. granted Prohibitions for questioning marriages out of the Levitical Degrees and thereby determined the lawfulness of such Prohibitions So as many Parliaments having past since Prohibitions granted in that kind without complaint of it as is likely but certainly without redress for it It is not safe in a Case of publique Law as this is between the Spiritual and Temporal Jurisdiction to change the receiv'd Law nor do I think it is expected That being taken then as setled That the Spiritual Courts may be prohibited to question marriages out of the Levitical Degrees The first question will be Whether any marriages be against Gods Law but those within the Levitical Degrees for if none else be the Temporal Courts having Conuzance of marriages within those Degrees have consequently Conuzance of all marriages against Gods Law Then must the words of the Statute No marriage shall be impeach'd Gods Law excepted without the Levitical Degrees be understood thus No marriage shall be impeach'd Gods Law excepted viz. his Law of the Levitical Degrees Cok. Litt. f. 235. a. The Authority which makes for this Exposition is Coke in his Littleton where these words are For by the Statute of 32 H. 8. cap. 38. it is declared That all persons be lawful that is may lawfully marry that be not prohibited by Gods Law to marry that is to say that be not prohibited by the Levitical Degrees By which evidently he makes all the Law of God which prohibits marriages to be only the Levitical Degrees But I conceive clearly There are other Laws of God prohibiting marriages to be made and if made warranting their Dissolution and so intended to be by this Statute of 32 H. 8. besides the Law of God in the Levitical Degrees 1. For persons pre-contracted to another are prohibited by Gods Law to marry against such pre-contract 2. Persons of natural Impotency for Generation are prohibited to marry For marriage being to avoid Fornication 1 Cor. 7. v. 2. if it be useless for that purpose as natural Impotency is it is as null So is the Case of Sabell and another Case of one Bury Dyer 2 El. 178 divorc'd at the Suit of their Wives for Impotency 3. Plurality of Wives or Husbands is prohibited by Gods Law the first being not prohibited by the Levitical Degrees And Sir Edward Coke Cok. Mag. Ch. f. 687. a. in the end of his Comment upon this Statute notwithstanding the passage before in his Littleton saith expresly That marriages made with a person pre-contracted or with an Impotent person could not have been question'd in order to a Divorce by reason of this Statute but because such marriages are against Gods Law yet are they all without the Levitical Degrees This is the reason of the words Gods Law except for these marriages may be impeach'd though out of the Levitical Degrees this answers the words or otherwise by Holy Scripture in 28 H. 8. c. 16. also In what sense any Marriages and Copulations of Man with Woman may be said to be Natural and in what not In the first place to speak strictly what is unnatural it is evident that nothing which actually is can be said to be unnatural for Nature is but the production of effects from causes sufficient to produce them and whatever is had a sufficient cause to make it be else it had never been and whatsoever is effected by a cause sufficient to effect it is as natural as any other thing effected by its sufficient cause And in this sense nothing is unnatural but that which cannot be and consequently nothing that is is unnatural and so no Copulation of any man with any woman nor an effect of that Copulation by Generation can be said unnatural for if it were it could not be and if it be it had a sufficient cause There are other Males and Females differing in their Species which never have Appetite of Generation to each other and consequently can never have the effect of that Appetite the kinds whereof are innumerable Between these the acts of Generation are so unnatural that they are impossible and no restraint is necessary to such by Laws or by other Industry Marriages forbidden in Leviticus lawful before Those marriages and carnal knowledge which are amongst the most Incestuous enumerated in Leviticus the Eighteenth were so far from being unnatural in primordiis rerum that they were not only natural but necessary and commanded in that Command of Increase and Multiply that is the Carnal knowledge between Brothers and Sisters For the World could not have been peopled but by Adams Sons going in to their Sisters being Brothers and Sisters by the same Father and Mother or by a more incestuous coupling than that and if such Carnal knowledge had been absolutely unnatural in any sense it had never been either lawful or necessary For whatsoever is simply and strictly unnatural at any time was always unnatural and unchangeable Marriages lawful after restoring the World in Noah After the peopling of the World first from Adam then from Noah and to the time of Moses giving the Levitical Law Many other marriages prohibited in the Levitical Degrees were not only lawful but prosecuted with the most signal benedictions and promises of God Gen. 20. v. 12. As the marriage of Abraham with Sarah who was his Sister that is the daughter of his father but not the daughter of his mother So is his answer to Abimelech and so is the Tradition of her Genealogy But by the Eighteenth of Leviticus the marriage of the Sister by the Father is prohibited to the Son viz. Lev. 18. v. 9. Thou shalt not discover the shame of thy Sister the Daughter of thy Father or the Daughter of thy Mother whether she be born at home or born without c. The next instance is of Amram the Father of Moses and Aaron who married Jochobed his Fathers Sister namely the Sister of Roath And Amram took Jochebed his Fathers sister to his Wife Exod. 6. v. 20. and she bare him Aaron and Moses Which marriage is prohibited in the 18. of Leviticus viz. Thou shalt not uncover the shame of thy Fathers Sister Lev. 18. v. 12. for she is thy Fathers Kinswoman Jacob had two Wives at the same time Leah and Rachel Gen. c. 29. c. being Sisters which is a known Story But by the Eighteenth of Leviticus Thou shalt not take a Wife with her

And if such Debts were not justly to be so demanded and paid it had been against the Iudges Oath to pass such Iudgments for the Defendant is not bound to Demurr but leaves the Iustice of the Plaintiffs demand to the Court. In Decimo H. 6. Cotsmore 10 H. 6. f. 24. b. 25. a. who gave the Rule in the Case in question hath these words The Law will not charge Executors with a duty due by a simple Contract made by the Testator Then if such Action be brought against Executors upon a simple Contract made by the Testator and they will not take advantage at the beginning of the Pleas in abatement of the Writ but plead other matter which is found against them they never shall have advantage to shew that before Judgment that is in Arrest of Judgment and that I have known adjudg'd in this place once before this time Here is not only his own Opinion but a Iudgment by him cited in that Court formerly in the point I shall add another Case to this purpose A man brought a Writ of Debt against another 15 E. 4. f. 29. 2. and counted that he sold certain Goods to his Testator for the Sum in demand Littleton caus'd the Attorney of the Plaintiff as printed but should be Defendant to be demanded and so he was and Littleton demanded of him Si'l voyl avoyder son Suite not his own but his who counted against him que dit que voyl and after Littleton said to the Attorney of the Plaintiff The Court awards that you take nothing by the Writ for know that a man shall never have an Action against Executors where the Testator might have wag'd his Law in his life time quod nota It was not proper to ask the Plaintiffs Attorney Whether he would avoid his Clyents Suit and an unlikely answer of his to say Yes but a rational demand to the Defendants Attorney Whether he would avoid his Suit who counted against him and probably he should answer Yes and after Littleton said to the Attorney of the Plaintiff the Court awards you take nothing by your Writ If he had been the person to whom the question was first asked and who immediately before had answer'd Yes the Book had not been that after Littleton said to the Attorney of the Plaintiff but that Littleton said to him who was the same he discours'd with The Print thus rectified this Case agrees with the Law deliver'd by Cotsmore An Executor is sued and declared against in Court for so was the Course then upon a simple Contract of his Testators the Iudge asks his Attorney Whether he had a mind to avoid the Suit who answer'd Yes If the Iudge had thought fit he might have avoided the Suit without making any question but knowing it was not consonant to Law to avoid a Suit upon a simple Contract unless the Executor himself desired it He therefore asked him the Question and finding he did desire it the Iudge presently told the Plaintiffs Attorney He could take nothing by the Writ Else you see the Consequence of this Iudgment That the Iudges ex officio should prevent any Iudgment for the Plaintiff in Debt brought upon a simple Contract against an Executor whether the Executor would or not against former and subsequent usage Brook in Abridging this Case and not reflecting upon it rightly abridges it that Littleton demanded the Plaintiffs Attorney If he would avow his Suit whereas the word is clearly avoid not avow and to what purpose should he ask that Question for sure it was avow'd as much as could be when counted upon at the instant in Court Then Brook makes a Note Br. Executor pl. 80. Nota cest Judgment ex officio And this Note of Brooks mis-led the Lord Anderson once to the same mistake if the Report be right but the like hath not been before or since Rob. Hughson's Case Gouldsboroughs Rep. 30 Eliz. f. 106. 107. An Action was brought against an Administrator upon a Contract of the Intestates who pleaded fully administred and found against him Anderson said that ex officio the Court was to stay Iudgment and did so because the Administrator was not chargeable upon a simple Contract But since that Case of Hughson one Germayne brought an action of Debt against Rolls as Executor of Norwood for Fees as an Attorney in the Common Bench and for soliciting in the Queens Bench Germayne versus Rolls 37 38 El. Cro. 425. pl. 24. and for mony expended about a Fine for Alienation Rolls pleaded Ne unque Executor which was found against him and Judgment given Vpon which Rolls brought a Writ of Error and the Error assign'd was That the Action lay not against an Executor because the Testator could have waged his Law But it was resolv'd That for Attorney's Fees the Testator could not wage his Law but for the rest he might and that the Executor might have demurr'd at first but pleading a Plea found against him it was said he was Concluded some difference of Opinion was But agreed That the Executor confessing the Action or pleading nil debet in such Case and that found against him he hath no remedy And Popham remembred Hughson's Case in the Common Pleas and would see the Roll for he doubted that both in that Case and this of Germayne the Executor had not confessed the Debt in effect But after it was moved again and all the Judges Hill 38 Eliz. Cro. 459. pl. 4. but Gawdy were of Opinion that the Judgment was well given as to that Cause but it was revers'd for a Cause not formerly mov'd which was That an Action of Debt would not have layn against the Testator himself for part of the mony in demand and recovered that is for the mony for soliciting which was not a certain Debt but to be recovered by Action on the Case Some Cases in the Old Books may seem to colour this Opinion That the Judges ex officio in an Action of Debt brought against an Executor or Administrator for a simple Contract of the Testators or Intestate ought to abate the Writ 25 E. 3. f. 40. The first is 25 E. 3. f. 40. where an Action was brought against an Executor upon a Tally struck by the Testator The Iudges said Nil Capiat per breve if he have no better specialty 12 H. 4. f. 23. The like Case is 12 H. 4. f. 23. where a like Action was brought against the Executor or Administrator upon a Tally of the Testators and there it appears the Defendants Council would have demurr'd and the Cause is mentioned That the writing of the Tally might be washed out by water and a new put in the place and the Notches chang'd and the Iudgment was Nil capiat per breve This being the same Case with the former the reason of the Iudgment was the same of grounding an Action upon a Specialty not good in Law Besides it appears in the latter

ipso facto but after six Months after notice of such deprivation given by the Ordinary to the Patron By these Clauses immediately upon not reading the Articles according to the Statute the Incumbent is depriv'd ipso facto And the Patron may presently upon such Deprivation present if he will and his Clerk ought to be admitted and instituted but if he do not no lapse incurrs until after six months after notice of the Deprivation given to the Patron by the Ordinary who is to supply the Cure until the Patron present Another Clause of the Statute is No person shall hereafter be admitted to any Benefice with Cure except he then be of the Age of Three and twenty years at the least and a Deacon and shall first have subscribed the said Articles in the presence of the Ordinary c. And relative to this Clause there is a third That all Admissions to Benefices Institutions and Inductions of any person contrary to any provision of this Act shall be utterly void in Law as if they never were Now though the Church of Wringlington became void immediately of what value soever it were by admission and institution of the Defendant into the Church of Elme by the ancient Canon Law receiv'd in this Kingdom which is the Law of the Kingdom in such Cases if the Patron pleas'd to present And for that the Patron accordingly did within a month after the Defendants Admission and Institution into the Rectory of Elme present his Clerk Hugh Ivy to the Church of Wringlington who was thereto Admitted Instituted and Inducted within that time which was a month before the Defendant was depriv'd for not reading the Articles in the Church of Elme Whereby any Interest the Defendant had to Wringlington was wholly avoided as the Case is Yet if the Church of Wringlington had been under value and the Patron had not presented to it his Clerk before Higden's Deprivation of the Church of Elme he might not have still continued Parson of Wringlington as if never Admitted Instituted or Inducted to the Rectory of Elme But if he had not subscribed the Articles before the Ordinary upon his Admission and Institution to the Rectory of Elme he had never been Incumbent of Elme and consequently never accepted a second Benefice to disable him of holding the first And so it is resolv'd in the last Case of the Lord Dyer 23 of the Queen where a man having a Living with Cure under value accepted another under value also having no Qualification or Dispensation and was Admitted Instituted and Inducted into the Second but never subscribed the Articles before the Ordinary as the Statute of 13. requires Vpon question whether the first Living vacavit per mortem of him or not the Court resolv'd That the first Living became vacant by his death and not by accepting the second because he was never Incumbent of the second for not subscribing the Articles before the Ordinary whereby his Admission Institution and Induction into the second Living became void as if they had never been This Case was urg'd at the Barr for the Defendant as if his not reading the Articles within two months after his Induction into Elme had still as in the Lord Dyers Case left him Incumbent of the first Living But that was mistaken for not subscribing the Articles made that he never was Incumbent of the second Living and consequently then there was no cause to lose the first But the Defendant having subscribed the Articles upon his Admission and Institution was perfect Incumbent pro tempore of the second Living and thereby lost the first and afterwards lost the second for not reading the Articles within two months after his Induction so as he was compleat Incumbent by Admission Institution and Induction of the second Living full two months before he lost it It was upon this Clause of the Statute smartly urg'd by my Brother Baldwyn That if the Statute makes the Defendants Admission Institution and Induction to the second Living void as if they had never been For what reason doth he not still retain his first The Answer is as before 1. That his not retaining the first is no effect nor consequent of his losing the second But the first was lost because he accepted a second and the right Patron thereupon presented to the first so as he lost the first whilst he was and for being lawful Incumbent of the second And therefore could be no effect nor consequent at all proceeding from his loss of the second by not reading the Articles after more than if he had lost the second by Deprivation for Heresie or other cause 2. The Clause of 13. is not That all Admissions Institutions and Inductions to Benefices where any person is depriv'd by virtue of that Act shall be void as if they never were for so should the Clause have been to warrant the Objection made at the Barr. But the Clause is That all Admissions Institutions and Inductions made contrary to any provision of the Act shall be void as if they never were But Higden's Admission Institution and Induction to the Church of Elme was not contrary to any provision of the Act but every way legal but had he not subscribed the Articles before the Ordinary then his Admission Institution and Induction had been contrary to the provision of the Act and so void as if they never were The Chief Justice delivered the Opinion of the Court and Judgment was given for the Plaintiff Bushell's Case THE King 's Writ of Habeas Corpus Dat. 9 die Novembris 22 Car. 2. issued out of this Court directed to the then Sheriffs of London to have the Body of Edward Bushell by them detained in Prison together with the day and cause of his Caption and Detention on Friday then next following before this Court to do and receive as the Court should consider as also to have then the said Writ in Court Of which Writ Patient Ward and Dannet Foorth then Sheriffs of London made the Retorn following annex'd to the said Writ That at the Kings Court of a Session of Oyer and Terminer held for the City of London at Justice Hall in the Old Baily London in the Parish of St. Sepulchres in Farringdon Ward without London on Wednesday 31 die August 22 Car. 2. before Sir Samuel Sterling then Mayor of London and divers other his Majesties Justices by virtue of his Majesties Letters Patents under the Great Seal of England to them any four or more of them directed to enquire hear and determine according to the tenor of the said Letters Patents the Offences therein specified And amongst others the Offences of unlawful Congregating and Assemblies within the limits appointed by the said Commission within the said City as well within Liberties as without Edward Bushel the Prisoner at the Barr was committed to the Goal of Newgate to be there safely kept under the Custody of John Smith Knight and James Edwards then Sheriffs of the said City