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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

to his Sons Wife Of the Brother to his Brothers Wife Of a man to his Wives Sons Daughter Of a Man to his Wives Daughters Daughter Of a Man to his Wives Sister Are plainly prohibited by Gods Law and that no man can dispense with Gods Law and that a separation be in such marriages be definitive Sentence in the Spiritual Courts of the Kingdom without prohibition from or appeal to Rome of such marriages By this Act marriages did become of lay Cognizance faith Sir John Vaughan R. 214. for the Kings Court were requir'd by this Law by the Kings writ of Mandamus to enjoyn the Ecclesiastical Courts to treat such unlawful Persons pretending marriage as incestuous Persons But whether this statute made marriages of lay Cognizance I will not determine for the statute that direct to whom administration shall be committed doth not take the matter of administration to the Common Law Courts neither do the writs of our Courts of Westminster which issue to the Bishops commanding them to assail an Excommunicant give the power of the Keys to the Secular Courts There was nothing by this Act of 25. H. 8. done to restrain the power of the Church in declaring what other marriages were unlawfull This Act only restrained the Popes power of dispensing with such unlawful marriages and gave Authority to the Kings Court to injoyn and command the Ecclesiastical Courts to dissolve such marriages by their definitive Sentence without regard had to the prohibition from or Appeal to Rome But the statute 28. H. 8. C. 7. the former Act of 25. is repealed but the power of the Papal dispensation in such marriages is condemned the said marriages are recited again and declared to be prohibited by Gods Law only with these differences that in the prohibition of the Sons marrying the Step-mother of marrying the Unckles Wife of the Father marrying his Sons Wife of the Brother marrying the Brothers Wife is added carnally known by the Father Unckle Son Brother respectively and in the prohibition to marry the Wives Daughter or her Sons Daughter or her Daughters is added having Carnal Knowledg of his Wife And with this further addition That if any man carnally know any woman all persons in any degree of consanguinity or affinity of the persons so offending shall be adjudged to be within the said prohibitions in like manner as if the parties so marrying one another had been marryed for instance if a man carnally know a Woman not marrying her he is prohibited to marry her daughter or daughters daughter In all other clauses this Act and the former Act of 25 are Verbatim the same and this Act is in force Sir John Vaughan says Rep. 215. that these degrees were the second time made of Lay Cognizance In this Act dispensations for such marriages are prohibited And for that this Act did declare these marriages to be prohibited by Gods Law they were declared and made indispensably unlawful null void and that they could not be ligitimated by the Papal Authority And thereby the Common Law Courts had a power given them to issue out the Kings writ of mandamus to require them to dissolve such Marriages by their definitive sentence But the Arbitrary power of that Church in defining the lawfulness of marriages yet remained in full force and unimpeached which was an Authority very much abus'd by unreasonable restraints of the freedom of marriage for Remedy of this there was a provision made by 28. H. 8. C. 16. That all marriages made before the 3d day of Nov. 26. H. 8. whereof there is no divorce had by the Ecclesiastical Laws of the Realm and which be not prohibited by Gods Law limited and declared in the Act made this present Parliament for Establishing the King's Succession or otherwise by holy Scriptures shall be lawfull and effectual by Authority of this present Parliament This Law went in Confirmation but to some few marriages before that time made and not rescinded by divorce thus forbidden by the Canons of the Church but yet left the power of the Church unabated still in declaring marriages unlawful other than are by the Law in Leviticus prohibited in all marriages but those within that time made and not divorced But by the statute of 32. H. 8. Cap. 34. a full and compleat remedy is provided against the unreasonable assumings of the Canon Law to restrain the Liberty of marriage for slight and phantastical motives and inducements by which the Virtue of Chastity was not materially promoted By this act it was declared That all persons lawfull to contract marriages that be not prohibited by Gods Law to marry And it is thereby enacted That no prohibition or reservation Gods Law Except shall trouble or impeach any marriage without the Levitical degrees And that no Person of what Estate degree or Condition whatsoever he or she be shall after the said first day of the month of July aforesaid be admitted in any spiritual Courts within the Kings Realm or any by Graces other Lands and Dominions to any process plea or allegation contrary to this Act some part of this as to precontracts was repeal'd by Ed. 6. and the residue was repeal'd by 1. 2. P. m. but it is revived 1. Eliz. Cap. 2. and now in full force Note That the words by Gods Law and the words or otherwise by Holy Scripture in these two last mentioned Acts refer both to the Laws about marriages in Leviticus But for that besides the cases expresly limited and declared in that Law other marriages within a parity of reason by the true sense of that Law which is the Law and the Scripture might be intended prohibited and therefore prohibited by that Law it is added or otherwise in holy Scripture Besides that of Leviticus there is no part of the old Testament if that prohibits or makes unlawfull any marriage Christ made no Law about the Lawfulness of marriages but confirm'd those which the Law of Moses had allowed against the abuse of the liberty of divorcing permitted to the Jews by the Law of Moses By the aforementioned statute that Law in Leviticus is made the statute Law of England it is become of Lay Cognizance and however the Divines may gloss upon the text our Judges have the Authority of a Legal and binding interpretation of that part of the Scripture Our Judges at Common Law are as competent to interpret this Law in Leviticus as any Divines and need not want any Learning that is necessary for expounding thereof besides that they have senses exercised to make right and fitting interpretations of Laws In omnibus legibus etiam maximè odiosis quales sunt quae paenam irrogant receptum est vbi eadem est ratio jus idem valeat In benignioribus autem legibus etiam à paribus ad paria procedit interpretatio Our Courts may follow the Karaej who interpret it to cases of parity of reason or the Talmudists which stand within the enumerated Cases of the

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