Selected quad for the lemma: duty_n
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A57044
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A Representation of the prejudices that may arise in time from an intended act concerning marriages &c.
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1692
(1692)
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Wing R1105; ESTC R26985
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9,065
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18
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A REPRESENTATION OF THE PREJUDICES That may Arise in TIME FROM AN Intended Act CONCERNING Marriages c. LONDON Printed for Robert Clavell at the Peacock at the West-End of St. Pauls 1692. 'T IS no Dishonour to the Greatest and Wisest of Assemblies even a Parliament to review and alter their own Acts and Constitutions whenever it is found by Experience that any Inconveniences or Mischiefs follow upon them But when Sins are likely to follow men are neither to venture nor stay for the Experiment Such many such both Sins and Inconveniences dangerous and greatly prejudicial seem but too apparent as the more than accidental Consequences of a Bill said to be now passing into a Law of the Land entituled An Act disabling Minors to marry without the Consent of their Father or Guardian and against their untimely Marriage after the Death of their Father and for preventing all Clandestine Marriages To shew how easily this Act may be eluded or abused and represent withal the Sins and Mischiefs that are likely soon to follow it I shall consider the Heads of it in an Abstract that has come to hand of it the Copy at large I have not seen nor is it in my Power to procure and do hope not to see passed into a Law By the Draught I have seen it is to be Enacted From the 30th of March 1692. No Son under 18 nor Daughter under 16. shall Marry or Contract without their Father if living or Guardian be present and consenting to or without Consent in Writing signed in the presence of two Witnesses or more otherwise the Marriage to be ipso facto void I will put the Case That a Man of 17. years of Age contracts with a Woman of the same years the Woman has Consent of her Parents the Man has not his Fathers Consent however these get married Now is this Marriage by the Intended Act made ipso facto void by Reason that the Man had not the Consent of his Father The Question that will arise from such a Case as this is Whether such a Marriage can be made void so as to secure the Consciences of such as shall be divorced in such a Case that they may either Separate or Marry others to the better liking of their Parents Now 't is not I conceive a very easie matter to prove That a Man of 17. years of Age who may well be supposed to have at that Age Discretion to know what he does and what a Marriage Contract signifies yet has without the Consent of his Father contracted himself to a Woman and gone on deliberately in it and actually married her and known her as a Wife may yet Lawfully and with a good Conscience yield to the breaking off this Marriage be divorced or take another Wife because his Father gave not his Consent to the first Contract he engaged himself in No doubt but it was his Duty to have sought and obtained the Consent of his Father before he had contracted himself and married But that his not having done his Duty in that case to his Father will afterwards free him of his Contract and Marriage to his Wife is a Conceit that few mens Consciences will admit The best Casuists have resolved the Marriage to be Valid in foro Conscientiae Vid. Grotius de Jure L. 2. cap. 5. though made without the Consent of Parents and even against it owning it the manifest Duty of Children to have the Parents Consent but if they marry without the want of it does by no means invalidate the Contract When that is finished the Man by Gods Law is to forsake Father and Mother and cleave to his Wife goes out into another Family and is not in such subjection as shall oblige him to break off against his own Inclination or indeed as can justifie him in Conscience in separating should he have an Inclination to comply with his Fathers Will from the Wife with whom he is become one Flesh Some that have pretended to argue the Invalidity of such Marriages have never been able to prove any Thing like it from God's Law the utmost they have proved amounts to no more than this viz. That it is deducible and may be inferred from divers Passages in Scripture that Children ought to have their Parents Consent in Marrying which all the World owns But this by no means proves that what ought not to have been done may upon no account be valid when it is done What is commonly brought as an Argument in the Case to prove the Nullity from Reason viz. That a Son cannot alienate or give away his Fathers Goods without his Consent much less himself who is his Fathers Child is very trifling For though he cannot give his Father's Goods nor alienate them but the Law will restore them and the Son perhaps may not be bound to give them away though he had promised to do it as not being obliged to fulfil an unlawful Promise yet if he alienates them to another as his own and has received from him with whom he has contracted for them an equitable Consideration he is obliged in Conscience no doubt to an Equivalent Restitution if he does not make good his Promise in their delivery or whenever a Law of the Land shall cause the Return of the Goods to the Father Besides the World never yet supposed I presume that the Property and Dominion a man hath in his Goods and that which he hath in his Child are of the same nature or the like extent or that a Child hath no more Power over his own Body to dispose of that to his own liking than of his Fathers Goods in which he hath no manner of Property The Child no doubt is interessed in his own Marriage and therefore is not to be disposed of by the Father in Marriage against his own Inclinations And therefore when he understandeth the Interest himself hath in contracting for the Marriage of himself and contracteth upon that Interest of his own without his Father he is to blame no doubt for passing by the Interest of his Father but under no necessity when that is done to disclaim what he has acted upon the account of his own Interest in the Marriage of himself but under an obligation of Conscience not to rescind the Contract he has made with another upon it They who would deny this must affirm the Dominion of the Father to be absolute and at all times the same and also that the Child is under the same Restriction at 20 30 years of Age as at 17 whether out of the Father's Family or in it A thing 't is which the generality of the World never dream't of The only thing that can be pretended if they will not say this is that the Child at more years may have more Discretion But one may have Discretion at 17. which another has not at 20 30 years of Age and for that Reason a Time cannot be fixed for the Validity of a Contract but
either to void those Marriages which that hath disanulled but which are good in the sight of God or to bless those second Marriages which this alloweth but God's Law makes Adulteries the Party that is put away and not for Adultery remaining alive it will be a horrible Breach upon Christianity When the Church shall be compelled to judge and disanul Marriages by another Law than that of Christ and allow of and bless others which that forbids The Act of the Church in the Case will seem to concur for the securing the Consciences of Christians wherein when it is constrained to concur in an unlawful Case upon whom shall those Souls that are in danger by that means to perish be chargeable They who will say upon the Clergy that shall concur in it as I doubt not but many of this Age will be ready enough to say will 't is to be hoped excuse the Clergy who shall be afraid to concur in it for fear of a greater Punishment from God in being Partakers with what will open a Door for Adulteries than that which severe Governors may inflict to enforce Laws with which in Conscience they cannot comply But besides upon a Divorce in which the Church is Judge Bond is at present required by the Canon to be taken that neither of the separated Parties marry again but live single a Law made for Prevention of designed Adulteries which were found to be made use of to void Marriages of set purpose And if this Canon be observed the Parties separated after such Marriages and Cohibitation in their Minority are to be obliged to live single To which I doubt the Parents of such Minors will not be over-willing neither is it I suppose designed but the Church must have a Constraint laid upon her and her Canons must be laid aside at the pleasure of the Secular Power how well or ill soever the Concerns of Christianity go in the mean time 'T is too long to mention the Advantage which the Papists will have against the Reformation when Divorces shall become practicable after this manner who may have colour enough to charge it on us as the Effect of our denying Marriage to be a Sacrament None to grant Licenses but Vicars-General of the two Archbishopricks Master of Faculties Chancellors of each Diocese and one Deputy of theirs in each Diocese with Approbation of the Bishop If any grant License to any not being viz. above eighteen if Males and sixteen if Females without Father or Guardians Consent personally present or his Certificate signed and sealed before a Justice of Peace and attested under his Hand and Seal and by the Oaths of two Witnesses or to Minor the Father being dead without the Oath of two Witnesses that the said Minor is at least sixteen if Male and fourteen if Female To forfeit five hundred pounds and to be disabled to hold any Employ And if the Deputy does contrary to the Act he that Deputed him shall be liable to the Penalty provided the Bishops be not liable for approving such Deputy A Forfeiture this that a Man would not chuse to run the Hazard of for all the supposed Advantages or Profits of Fees for granting Licences It had been much more beneficial for Chancellors and their Deputies to have had their Faculties wholly taken away and a Law made for Publishing the Banns in all Marriages which would more effectually prevent the Mischiefs this Act is designed for But this I suppose could not be by reason that Great Men will not be upon the same Level with the vulgar but Respect must be had to them even in Religious Matters and Ecclesiasticks for a poor Reward must serve them in it and be answerable for the Inconvencies which follow thereby From which its something that the Bishops are exempt and that the Burthen and Danger lies upon their Offices and the Inferior Clergy Whoever marries such Minor contrary to the Act to suffer Death as a Felon without the Benefit of Clergy Father Mother Guardian of Minors may prosecute and if none of them do within twelve months the next of kin shall sue to have the Party convict of Life No pardon to be pleaded in Bar of such Suit It is not intelligible by the Abstract I have seen whether the person so to suffer Death be an adult person that have married such Minor or the Minister that joins them in Marriage If it be the former and there be no difference whether it be Man adult or Woman that gets married to such Minor A Woman which by this Law is no Minor after sixteen years of age should she be prevailed with by a Youth of seventeen who by this Law is reputed a Minor to marry him without his Fathers Consent may come to suffer upon that account Yea be it Man or Woman and be there some kind of Artifice in gaining the Affection of the Minor yet when the Contract is voluntary it seems somewhat hard that the Crime shall be punished with death especially when the Marriage is made void too and when Adultery fraudulently committed with a Neighbour's Wife is not punished with any such severity tho doubtless a much greater Crime If the Party be to be punished with Death the Marriage need not be made void and if the Marriage be it self null or by the Law may be disanulled it merits not a Capital Punishment while that of Adultery is not punished with it The Allowance of the next of Kin to prosecute after twelve Months if the Father does not is much more hard when the Father shall not have the Power or Liberty to give an After Consent if he finds occasion for it but a Kinsman that thirsts after the Inheritance of his Estate perhaps shall have it in his Power to convict the Offenders when the Father who is the injured Person may be willing to remit the Offence But probably this Arguing is upon a Mistake and it is intended that Whoever Minister or Parson shall join such Minor in Marriage he shall suffer Death If it be so methinks any Man of common Humanity should think it very severe That when the Guardian aiding in the Marriage of a Minor against his Trust or Servant Domestick or other Parson who has by Fraud drawn in a Minor to such Marriage shall be only punished some by Forfeitures others by Imprisonment the Minister before whom such Contract is ratifyed because in an undue manner shall be punished with Death and this too when the Marriage is by Law made soluble 'T is a very great Crime indeed a most wicked Action for a Clergy-Man to be instrumental in marrying a Minor that he has reason to think may not understand what he is going about or if he does whom yet he knows to take no notice of his Duty to his Parents with whom he should advise and by whom he should be directed in so weighty an Affair But why is it so great But because he betrays the Trust the Church hath put