de cohabic cler mul. Fitzherbert na Brev. Breve de Excommunicato capiendo fol. 62. Terms of Law verb. Excommengment who being apprehended by vertue thereof is to be kept in Prison without Bail or Mainprise until he or she have humbled themselves and obeyed the Monition of the Ordinary (t) Lindw ubi supra Fitzherbert in d. Br. de Excommunicato capiendo which when it is done and the Church and Party both satisfied then is the Ordinary to absolve the Party and to certifie the same into the aforesaid Chancery (u) Fitzherbert in d. Br. Stat. Eliz. An. 5. c. 23. Whereupon a Writ is to be directed as before for the release of the Parties Imprisonment which Writ is called Breve de Excommunicato deliberando (x) Fitzherbert d. loco Terms of Law verb. Excommengment To this punishment are they subject which have contracted Spousals de praesenti and afterwards refuse to undergo the holy Bond of Matrimony (y) c. Si inter de Sponsal c. 1. de Spons duorum extra DD. ibidem 28. But as for such as have contracted Spousals only de futuro if either of them do refuse to perform their promise forasmuch as the Text saith that such an one is rather to be admonished than compelled (z) c. requisivit de Sponsal extra and lest that punishment should by practice grow mortal which by Institution is medicinal (a) Henr. Boic in d.c. requisivir c. 1. de Sen. extra lib. 6. I do think that the Judge is not to proceed to the Significavit but rather to absolve that cursed Party which contemneth the Censures of the Church (b) Imò non petenti impendenda est absolutio pertinaci inquit Praepos post Jo. And. in c. ex literis el. 2. in fin de Sponsal extra albeit there be no Cause of favour but fear of further mischief by compelling them to go together which hate one another (c) Panor Praepos alij in d. c. requisivit Covar tract de Spons 1. parte c. 4. in princ n. 5. Yet is not this froward Party thus to be dismissed but is to suffer pennance propter loesionem fidei for breach of his promise (d) c. 1. de Spons duorum extra Lindwood in c. 1. de poenis lib. 5. provincial constitut Cant. Fitzherbert na br fol. 43. d. Stat. Ed. 1. An. 13. nec opus est interpositione Juramenti ad hanc poenam infligend Lindwood in d. c. 1. verb. fidei Panor in d.c. 1. de Spons n. 3. Adde c. Jurament 22. q. 5. nor is he or she either to be dismissed or absolved if those Spousals de futuro by reason of carnal knowledge or some other Act Equivalent do become Matrimony for in this Case as in the former where Spousals be contracted de praesenti the disobedient Party is to be Excommunicated (e) c. 1. de Spons duorum extra ibi DD. apprehended and imprisoned (f) Lindwood in c. de poenis verb. fidei transgressione Fitzherbert Na. br in Brevi de Excommunicato capiendo nor to be absolved or released before satisfaction (g) Lindwood Fitzherbert ubi supra or death or other just Cause of divorce (h) Wesembec in Tit. de Sponsal ff in fin 28. Other effects there be of Spousals whereof some respect the Issue or Children begotten before Celebration of the Marriage betwixt those which have contracted Spousals and some have relation to their Lands and Goods Concerning their Issue true it is that by the Canon Law the same is lawful (i) c. per tuas Qui filij sunt legitimi extra Panor super eod c.n. 4. Praepos n. 7. But by the Laws of this Realm their Issue is not lawful though the Father and the Mother should afterwards celebrate Marriage in the face of the Church (k) Stat. Merton c. 9. an 20. H. 3. Tract de repub Angl. pag. 103. prope fin pag. 104. circa princ Likewise concerning Lands by the Canon Law the foresaid Issue may inherit the same (l) d.c. per tuas qui fil sunt legit §. nos autem ibi DD. for further declaration whereof the Canonists tell us how the Children of Jacob which he had by his Handmaids did inherit the Land with their lawful Brethren (m) c. recurrat 32. q. 4. §. Juvenis by reason Jacob did afterwards marry their Mothers (n) Gloss in c. non omnis 32. q. 2. Jason consil 234. post eandem gloss But it is otherwise by the Laws of this Realm for as the Issue is not legitimated by subsequent Marriage no more can he inherit his Fathers Land and as he cannot inherit no more is she to have any Dower of the same Lands for whereas by the Laws of this Realm a marryed Wife is to have the third part of her Husbands Lands holden in Fee Simple or Fee Tail either General or Special for her Dower after her Husbands Death during her Life So that she be above the Age of nine Years at her Husbands Death (o) Littleton Tit. Dower in princ Yet a Woman having contracted Matrimony if the Man to whom she was betroathed dye before the Celebration of the Marriage she cannot have any Dower of his Lands because as yet she is not his lawful Wife at least to that effect (p) M. 10. H. 3. Perkins fol. 61. Indeed it was sometimes holden for Law within this Realm of England that if a Man affianced to a Woman did carnally know her and then make a Feoffment to the same Woman of a piece of Land and give her seizin thereof and after that Marry her in the face of the Church this Feoffment was void (q) Perkins fol. 40. n. 195. Mich. 16. Ed. 3.4 Feof 117. as being made unto his own Wife to whom he had given his Faith and whom he had carnally known he and she being both one Person in Law (r) Perkins ibidem which thing also is agreeable to the Civil Law and to the Canon Law also whereby the donations which are forbidden betwixt the Husband and Wife are interpreted likewise to be forbidden betwixt them which have contracted Spousals de praesenti or which having contracted Spousals de futuro do afterwards lye together whereby those Spousals are reputed Matrimony (s) L. Scita L. cum hic status §. penult ff de donar inter virum uxorem Peckius de testam Conjug lib. 4. c. 11. n. 7. Bald. in L. solet §. quae virum ff de hijs qui no. infam Panor Praepos Felin in Rub. de Spons extra But afterwards the Temporal Lawyers of this Realm were of another Opinion than they were in former times And whereas long ago they did seem to hold that the Feoffment was not good as being made to his own Wife (t) Mich. 16. Ed. 3.4 Perkins fol. 40. n. 195. now they do
of the Ancient Lawyers were of a contrary Opinion for a long time (a) Viv. in c. à nobis de despons impub. alii de quibus Hen. Foic cod c. Hostiens Summa Tit de despons impub. §. quae Sponsalia Bart. in L. prima §. Si quis ita de verb. Obl. ff nu 2. holding That if by these words the Parties did intend to contract Matrimony then the Contract was utterly void not having any force either of Matrimony or of Spousals (b) gloss post Alan in d. c. à nobis disputat Hen. Poic eod c. Not of Matrimony because if they would they could not make any such Contract (c) gloss in d. c. à nobis in c. unic §. 1. verb. Matrimonrum Not of Spousals because albeit they might yet they did not intend to make any such Contract (d) Gloss ubi supra resert Covar Tract de Sponsal parte 1. c. 3. nu 2. quem vide And so either because they could not or would not the Contract did not prevail at all either as Matrimony or as Spousals howbeit in the end this Opinion was dasht by later Laws made for that purpose whereby it was and is established That if two Children do contract Spousals by words of present time intending also thereby to contract Matrimony yet this Contract shall prevail as Spousals de futuro (e) Text. in c unic §. 1. de despons impub. in Sext. Hen. Boic in d. c. à nobis extra eod tit Covar Tract de Sponsal prima parte c. 3. nu 2. and so it is if one of the Parties be of ripe Age the other not (f) d.c. unic §. 1. de despons impub. in Sext. 7. Fourthly By what means Spousals contracted during Infancy and therefore void at the beginning are notwithstanding afterwards made strong and confirmed namely by mutual Cohabitation by Kissings by Embracings by giving and receiving of Gifts and Tokens c. (g) Praeal c. in princ ibi gloss Dominic Franc. alii or by Words expressing the continuance and perseverance of the mutual Consent as by calling each other Husband and Wife (h) d. gloss By the same means practised after the Parties be of ripe Age fit for Marriage are those Spousals by them contracted in their Minority by words of present time being then Spousals de futuro by interpretation of Law only resolved or turned into Matrimony (i) Abb. in c. fin de Sponsal extra Lib. 1. confil matrim confil ibidem 17. nu 6 7. Gloss DD. in c. 1. §. 1. de despons impub. Lib. 6. Paris consil 51. consil 62. vel 4. Soarez Thesaur com opin verb. Sponsalia nu 163. ibi Baptista à Villalob verb. Sponsalia nu 91. est communis opinio licet eam aegrè ferant Covar prima parte de Spons c. 4. §. 2. nu 4. Molin in addic ad consil Dec. 368. quos videas from that time enjoying the same Properties and Effects belonging to Spousals de praesenti contracted betwixt Persons of full and perfect Age (k) Dec. consil 368. clariùs Paris d. cons 51. vol. 4. nu 11. Card. in c. de illis el. 1. de despons impub. extra nu 1. unless the Parties after they be come to perfect Age do first dissent and so dissolve the Contract before they consent (l) Henr. Boic in c. Attestationes de despons Impub. extra versic Item fallit Menoch de praesump libr. 3. praesumpt 2. nu 26. As for their dislent before they come to perfect Age it hindreth not the exchange or passage of the Contract from Spousals so termed by interpretation of Law to Matrimony by any the means aforesaid (m) c. de illis el. 1. de despons impub. in princ ibi gloss verb. ullatenus Card. in princ de c. in fin c. à nobis eod tit ibi Panor nu 2. Howbeit this is to be diligently noted in this place That Spousals de futuro properly so called those I mean which are contracted by words of future time as I will take thee c. do not pass from Spousals to Matrimony by any the means aforesaid or by any other Act other than by the very Act of Carnal Knowledge of the Parties so betroathed (n) c. fin de Sponsal extra ibi Panor DD. Dominic Franc. in c. unic de Sponsal §. 1. lib. 6. Henr. Boic in c. Attestationes de despons Imp. extra Dec. cons 368. Paris consil 51. nu 8. lib. 4. Covar Tract de Sponsal prima parte c. 4. §. 2. nu 2. So that the endeavour to perform the Act is not sufficient in this Case (o) d. c. fin de Sponsal extra ibidem DD. maxime Panor Praepos ibidem lib. 1. consil matrim consil ibidem 86. nu 23 24. which in the other Case is alone sufficient without accomplishment of the Act (p) c. Attestationes ibi Praepos Henr. Boic de despons impub. extra Idem Praepos in c. fin de Sponsal nu 3. Cardinal nu 2. cod c. fin 8. Fifthly By the Laws of this Realm as I take it if a Woman during her Minority be married to a Man seized of Lands or Tenements in Fee-simple or Fee tail by Purchase or Discent she shall be endowed of the third part of such Lands and Tenements so that she have accomplished the Age of nine years at her Husbands death (q) Fitzherbert Na. Br. fol. 149. l. Littleton Tit. Dower in prin Kitchin fol. mihi 160 161. SECT VIII Divers Questions about Marriages or Spousals contracted by Children 1. THE Questions which I speak of and which are now to be propounded are of divers sorts (a) Vide Summam Hostiens Tit. de despons impub. §. fin Covar Tract de Sponsal prima parte c. 4. 5. by occasion of the divers Circumstances whereby the Case and consequently the Law is altered incident to this Matter for sometimes the Parties which are betroathed are both under Age. and sometimes th' one of them in Minority and th' other of ripe and perfect Age Wherefore we will first handle such Questions as belong to the first Case then those which belong to the second Case and thirdly those Questions which belong to both Cases 2. First When the Parties betroathed are both of them Children at the time of the Contract then this Question may be demanded Whether that Party which first cometh to lawful Age may then dissent or must stay and expect till the other Party likewise come to lawful years (b) de hac Q. DD. in c. de illis el. 1. de despons impub. extra Covar de Spons prima parte c. 5. §. fin Many are of this Opinion That he or she who first cometh to ripe Age must stay until the other Party attain to ripe Age also and cannot in the mean time dissent
tres offert rationes aestimandi pubertatem plenam xviij annis and if then also he be unable to pay his due at the instance of the Woman the Marriage may be dissolved (m) Panor in d. c. puberes de despons impub. unless the Judge upon the consideration of the Qualities of the Persons shall grant a longer time (n) Puta unum aut alterum mensem Henric. Boic in c. puberes de despons impub. paulò ante fin Melch. Kling Tract de Caus Matr. fol. 32. b. 6. The third Ampliation is That after the expiration of Fourteen and Twelve years Men and Women how old soever they be may lawfully marry notwithstanding any Prohibition of former Laws (o) L. Sancinus el. 2. C. de Nuptiis c. nuptiarum 27. q. 1. in princ gloss DD. in c. quod Sedem de frigid malef extra And albeit not Women only in process of time become barren and fruitless but Men also if we may believe the Learned are at length viz. after Eighty years deprived and spoiled of the Ability of getting Children (p) Albertus tam re quam nomine magnus lib. 5. de Animal bus Tract 2. c 1. Cujus verba sunt haec homo masculus circa xxx annes habens Semen perfectè maturum petest generare ad lxx annos rarò in valâ—nticribus extenditur haec virtus usque ad lxxx annos Sed post hoc est labor dolor non est aliqua virtus generatienis Licet ceeat c. Tiraquel de legibus Connub. L. 5. verb nec intempe Evum Socinus Jun. consil 86. nu 45. vol. 2. Menoch Tract de Arb. Jud lib. 2. cas 89 nu 54. c. in whom if any heat or warmth be then left whereby by Nature or by Art they are provoked (q) Melchior Kling Tract de caus Matrim fol. 32. in sin this Act is not of force for Procreation (r) Albertus magnâ—s Tiraquel Soâ—â—… Menoch ubi supra which was the cause wherefore sometimes they might not marry (s) Gloss in L. Sancinus C de nup. yet nevertheless so beneficial are the Laws Civil and Ecclesiastical in these days to them that be disposed to marry that none are barred by lapse of any years (t) L. Sancinus C. de nuptiis gloss DD. in c. quod Sedem de frigid malef extra ut Matrimonium quod in aliis est infirmitatis remedium in Senibus sit humanitatis Solatium (u) c. nuptiarum 27. q. 1 in princ Anto. Gubert Tract de Nup. fol. 80. verb. dubium That Matrimony which is in others the remedy of Infirmity may be in the Aged a Solace of Humanity But I speak this rather to defend the Marriage of the Aged from unlawfulness than to commend it for comliness (x) consule Tiraquel de leg Connub. Leg. 5. Nevizan in Silva Nuptial lib. 2. nu 13. c. 7. The fourth Ampliation is That albeit the Man and the Woman have not as yet accomplished his and her full Age of Fourteen years and Twelve but proximi pubertati next unto ripe Age or nearer ripe Age than Infancy viz. he of the Age of Ten years and an half and she of the Age of Nine years and an half or upwards towards his or her several Ages of Fourteen and Twelve (y) Covar Tract de Sponsal secunda parte c. 5. nu 4 DD. in c. de illis el. 2. de despons impub. if during this time malitia supplet aetatem natural Ability to perform the Duty of Marriage for so the word malitia signifieth in this place as I have shewn in another place (z) supra §. 7. supply the Age they may as lawfully marry as if they had exceeded their several Ages of Fourteen and twelve years (a) c. puberes c. c. de illis el. 2. de despons impub. extra ibi Panor Melchior Kling de caus matrimonial fol. 15. or if those Persons be yet younger viz. proximi infantiae next unto Infancy or nearer their Infancy than their ripe Age yet having discretion of mind and ability of body to conceive the effect of Marriage and to pay the Debt thereunto belonging the Marriage is lawful and effectual (b) Panor in c. de illis el. 2. de despons impub. nu 4. Summa Silvestrin verb. Matrimo 5. q. 2. gloss in c. l. 20. q. 1. Attamen non sufficit sola coeundi potentia sine discretione Covar Tract de Sponsal secunda parte c. 5. nu 3. quem velim videas And the Laws of our Realm say That the Wife which is of the Age of Nine years at her Husbands death shall be endowed of the third part of his Lands and Tenements which he held either in Fee-simple or fee-Fee-tail and which he had either by Purchase or Discent (c) Fitzherbert Na. Br. fol. 149. Litleton tit Dower in princ Some go further and say That if a young Man of ripe Age marry an Infant and have the use of her Body before she be Seven years old that the Marriage is good (d) Hostiens in c. puberes de despons impub. per. c. Juvenis de Sponsal extra Praepos in d. c. Juvenis nu 7. fol. 3. But others whose Judgments I do rather follow do hold That this Marriage is not good (e) Panor n c. continebatur de despons impub. extra nu 6. Covar Tract de Sponsal secunda parte c. 5. nu 3. in fine qui tamen limitant hoc dictum nempe nisi illa sit doli capax multum discreta huc accedit Summa Sylvestrin verb. Matrimonium 5. q. 2. for say that the Infant was known Carnally which things is no less incredible to be spoken than horrible to be heard yet the Infant not having discretion to understand what is the Nature of Matrimony (f) Covar ubi supra cannot give her Consent to that whereof she is ignorant (g) L. si per errorem ff de Juris omnium Judic and consequently the Marriage cannot be good For it is a clear Case That without Consent there cannot be any Matrimony (h) L. nuptias de Reg. Jur. ss c. cum locum de Spons extra And here note That whensoever any Persons are married before their several Ages of Fourteen or Twelve years two things are requisite to the validity and force of Marriage the one is Discretion to discern the the Nature and Force of Marriage the other is Natural Ability to pay the Marriage Debt (i) Covar in Tract de Sponsal secunda parte c. 5. nu 3. versic ex quibus Panor in c. de illis el. 2. de despons impub. extra nu 4. This Discretion is then presumed when the Parties be proximi pubertati (k) Covar ubi supra that is nearer ripe Age than Infancy But that Ability is not then presumed nor until the parties have accomplished their aforesaid several Ages (l)