Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	court_n	king_n	realm_n	1,598	5	9.5501	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A30985	Several miscellaneous and weighty cases of conscience learnedly and judiciously resolved / by the Right Reverend Father in God, Dr. Thomas Barlow ...	Barlow, Thomas, 1607-1691.	1692 (1692)	Wing B843; ESTC R21506	129,842	472

Rome too is of Ecclesiastical Cognizance Now there is both in Law and the nature and the consequences of them a great difference between Ecclesiastical and Civil Causes Many instances might be given but being not my business I shall only set down two or three thus First Had it been an action of Debt and the Sentence at Turin had been that Mr. Cottington should pay 500 l. to Gallina Admit also that no such Debt was due and so the Sentence unjust and admit that at Gallina's instance that Sentence had been confirmed and executed here in England and Mr. Cottington compelled to pay that Summ. It might be a peice of injustice and a sin in the Judge to sentence him to pay what was no way due But as to Mr. Cottington it might be his Calamity being compell'd to pay what he did not owe but his crime it could not be It could be no sin in him compell'd by his Judge to pay that Money though indeed it was not due For he might lawfully have given Gallina so much Money without and before any compulsory decree and that decree could not make it to him unlawful But in our present Matrimonial Case it is far otherwise For if there was no Nullity in the Contract and the Sentence at Turin unjust and if upon that Sentence it be decreed here that Mr. Cottington shall Co-habit with Gallina here obedience to that unjust Sentence will not only be his Calamity but his Crime because in this Case he Co-habits with another Man's Wife and is guilty of Adultery Nor will the Judge's Sentence requiring such Co-habitation any way excuse him And on this consideration it highly concerns the Judges in this case to be assured of the Nullity least they sentence Mr. Cottington to Co-habit with another Man's Wife and so to sin and commit Adultery But if they do quod absit it as highly concerns Mr. Cottington to obey God rather than Men and though he suffer for it here rather disobey an unjust Sentence of an earthly Judge than the eternally just Judge of Heaven and Earth and suffer for it for ever hereafter Secondly The Church of Rome has Ecclesiastical Laws particularly about the Validity and Nullity of Matrimonial Contracts which neither are nor ought to be approved by the Church of England For 1. They admit the Oaths and Confessions of the parties desiring Sentence for divorce or Nullity and so it was in our present case which the Church of England admits not 2. It is their generally received opinion that although the Matrimonium be indeed ratum yet a Papal Dispensation may dissolve the vinculum conjugale and so induce a Nullity Dico saies a great Popish Casuist Matrimonium ratum posse dissolvi per Papae dispensationem And for Proof of it he cites five Popes did dispense with such Marriages and then adds Quod Gregorius Papa 13 Unica die cum undecim Matrimonijs ratis dispensavit And further tells us out of Sanchez of no less than fourty nine Divines Canonists Summists c. cited for the same opinion and he might have cited as many more and then he himself from their own received Principles fully proves it Now it highly concerns Mr. Cottington and his Judges too to know on what grounds the Archbishop of Turin gave Sentence for a Nullity For if it was only on the aforesaid Reasons and Popish Principles no Bishop or knowing Casuist of the Church of England will or can admit that Sentence to be just or grant a Nullity on such Grounds or sentence Mr. Cottington to Co-habit with Gallina her former Husband yet living and no just ground of any Nullity in their Matrimonial Contract appearing Thirdly The Laws of England concerning all Ecclesiastical particularly Matrimonial Causes are express forbidding all persons whoever they be inhabiting or resiant in this Kingdom to make use of or excuse the Judgments or Sentences of any Foreign Person Court or Judicature and requires upon pain of a Praemunire that all such Causes be tryed and finally determin'd within this Realm by our own Laws and Judges The words are thus If any Peron Inhabitant or Resiant in this Realm or any other of what condition soever at any time hereafter for any of the Causes aforesaid Matrimonial causes are expresly forenamed do procure from Rome or any other Foreign Court out of this Realm any manner of Foreign Process Sentences or Judgments of what kind soever or execute any of the same or do any Act c. such persons shall incurr a Praemunire I understand not Law and therefore referr this to you and those who do Only I observe 1. That the Word in the Statute is not Copulative If any Man do Procure and Execute and do any Act c. but Disjunctive If any Man Procure or Execute or do any Act c. That is if any Man do any one of those particulars mention'd if he either procure such Foreign Sentences or Execute or Abett and Assist c. Though he do not all yet he is liable to the punishment appointed by the Statute 2. That the end of the Statute is to provide against the damages and greivances of the Subjects of England and therefore forbids all Appeals to any Foreign Court Prelate or the Pope or to bring in any Foreign Process Sentence or Judgment given in any Foreign Court whatsoever And this is one reason of the Prohibition which the Statute doth instance in because neither the necessary proofs nor the true knowledge of the Cause can neither there be so well known nor the Witnesses there be so well examin'd as within the Realm so that the parties grieved by means of the said Appeals be most times without remedy So that though the Title and Epigraphe of the Statute be against Appeals to any Foreign Judicature yet in the body of the Statute the bringing in and executing of any Foreign Process Sentence or Judgment are equally forbid Thirdly Now for Gallina no Subject of England though now resiant here to bring in a Sentence of a Foreign Court and though the Proofs or Reasons of it be utterly unknown to plead it and have it without Examination executed to the Irreparable damage of a Person of Quality and a native Subject of England this seems to me to be against the true intent and meaning of this good Statute To conclude I do and must confess that of the Laws I have ventur'd to cite Law being none of my Profession I am no competent Judge and therefore begging your Pardon for my mistakes and medling with them I referr them and my self to You and the Learned Gentlemen of the Long Robe who best understand them who can I know easily discover my mistakes and will I hope without any severe Censure pardon them But for the Theological part of the Controversie and the Case of Conscience wherein his Judges in the Ecclesiastical Court and Mr. Cottington are concern'd this being within the

Immutable and Indispensable and therefore Marriage in the Law is defin'd to be Maris Faeminae Conjunctio Divini humani Juris communicatio omnis vitae consortium 3. And hence it follows evidently That if the conjugall contract between Patrimoniale and Gallina was Matrimonium legittimum ratum a legall and valid marriage ab Origine and when it was made then it continues so both parties being yet living and was and still is valid and obligatory If it was a just and valid contract in 1664. it must continue and be so now in this year 1677. 4. And further if this be true and granted that Gallina's Marriage with Patrimoniale in 1664. was and to this day continues valid then her Marriage with Mr. Cottington Anno. 1671. is absolutely Null and to all intents and purposes void for first Impossibilium nulla est obligatio or contractus contra naturam bonos more 's initus est omnino nullus If Gallina's pre-contract and marriage to her former Husband was legal and valid when her subsequent Marriage with Mr. Cottington was an evident violation of the Law of Nature which indispensably oblig'd her to be Faithfull to her former Husband and of her Faith before Solemnly given to another and so absolutely Null and in it self Void Secondly It is consonant to Law and right Reason and a received rule in all contracts as well as Matrimonial Quod nemo potest alterâ parte invitâ a contractu semel perfecto recedere And therefore if Gallina's conjugal contract with Patrimoniale was perfect and legally valid she could not without manifest Injustice recede from it leave him and adhere to another Husband In Matrimony as generally in other contracts our consent in making them is and should be free and voluntary but when they are made their Obligation and our Observance of them is necessary So that if this be so if the Matrimonial contract between Patrimoniale and Gallina be legall and really valid then no power on Earth or de Jure can oblige Mr. Cottington to Co-habit with Gallina as with his Lawfull Wife seeing on the foregoing Hypothesis she is indeed Wife to another Man And if any though the Supreme Authority should command Mr. Cottington so to Co-habit with Gallina this were to require him to live in impious and abominable Adultery with another Man's Wife which as no Humane Power can justly command so neither Mr. Cottington nor any other can obey without wounding his Conscience and hazard of his Soul and Salvation T is active Obedience I mean for if such commands should come though we cannot do what 's requir'd yet we may and ought quietly to undergoe the punishment agere pati fortia Christianum est no Courage like that of a good Christian who will suffer any thing patiently from his Governour rather than sin against his God 2. The next Query will be concerning the Invalidity and Nullity of Gallina ' s Marriage with Patrimoniale For if it be indeed Null as it seems some do and would persuade others to believe then the Case is alter'd Mr. Cottington may and ought to Co-habit with Gallina as his lawfull Wife For if her first Marriage were indeed a Nullity then her second with Mr. Cottington will be lawfull and valid and he obliged to Co-habit with her as her undoubted Husband Now in the Case propos'd I find but two Mediums brought to induce a belief that Gallina's Marriage with Patrimoniale was a Nullity 1. The Authority and Judicial Sentence of the Archbishop of Turine declaring it to be a Nullity 2. The reason alledged on which it seems that sentence was grounded drawn from the Force and Fear which made Gallina's consent involuntary Now I conceive with submission to better Judgments that these Mediums are too weak and insufficient to give satisfaction to Mr. Cottington or to quiet his Conscience so as that he may without danger or doubting Co-habit with Gallina For if he should Co-habit with her and only doubt of the Lawfullness of it he certainly sins It is a received and certain rule amongst Casuists That quicquid fit reluctante vel dubitante conscientiâ est peccatum If may Conscience tell me 't is not or doubt whether the thing I do be good and Lawfull what ever it be I sin if I do it And that 's the meaning of that saying of the Apostle many times mistaken whatsoever is not of Faith is Sin That is whoever does any thing without a Moral Certainty that what he does is just and lawfull he sins in doing it Now concerning the former of those two Mediums the Archbishop's judicial Sentence in this Case it is to be consider'd That admit that Archbishop and the Pope too his Superiour and beyound Sea their supreme Judge had both concurr'd in giving the same Sentence and declared the Marriage of Patrimoniale and Gallina a Nullity yet seeing by the known and just Laws of England they have no Authority or Jurisdiction over any here 't is certain they can lay no Obligation on any English Men to approve or submit to such Sentence 2. Nor can such Sentence if the Pope and Archbishop had given it be any reason or just ground to warrant any Judge or Court in England to give the same Sentence in the same or the like Case or be any just bar or reason to hinder them to give the contrary Sentence All know that a Facto ad jus non sequitur Argumentum the Pope this or that Court or Council judg'd so ergo we must or may do so is evidently inconsequent In the Case of Hen. 8. and Queen Katharine the Pope in and with his Consistory judg'd that he had Power to give and actually gave a Dispensation to Marry Relictam Fratris his Brothers Wife and yet afterwards our own at home and abroad the greatest Universities in Christendom judg'd the quite contrary in their Convocations call'd for that purpose Nay our own Supreme Court the Parliament in Hen. 8. time Judg'd that Marriage to be against the Laws of God and in Queen Mary's time the Parliament by Publick Act declared that it was according to the laws of God The Sentences of that Supreme Court are contradictory and ergo one of them be which it may be is evidently Untrue and Erroneous and therefore can neither be a just Warrant for any in England to approve it or judg according to it or a just Bar or Let to hinder us to judge the Contrary Now if notwithstanding the respect and reverence we owe to that Supreme Court we may in this and many the like Cases disapprove its definitive Sentence and be of a contrary Judgment Then much more may we disapprove and be of a Judgment contrary to the definitive Sentence of the Archbishop of Turin who is in nothing our Superiour nor hath any Authority or Jurisdiction in England especially in a matter of Fact wherein neither