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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

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

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

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