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parties affected to each other, yet the marriage knot cannot be publicly knit by any other hand than God's ministers.
And herein, certainly, we have just cause to bless the wisdom both of the Church and State; which hath so regulated these matrimonial affairs, as that they are not only orderly, but safely managed for, doubtless, were not this provision carefully made, the world would be quite overrun with beastliness and horrible confusion. And, in this point, we may well give the Church of Rome her due; and acknowledge the wise care of her Lateran and Tridentine Councils, which have enacted so strict decrees against clandestine marriages, and have taken so severe a course for the reforming of many foul disorders in these matrimonial proceedings, as may be of good use for the Christian world. Had they done the like in other cases, their light had not gone out in a snuff.
As, therefore, it is generally both decreed and observed, not without excellent reason, in all Christian Churches, that marriages should be solemnized in the public congregation of God's people; so it cannot but be requisite, that it should be done by him, who is ordained to be the mouth of the congregation to God, and the mouth of God to the congregation. And, as under the Law, the priest was the man, who must convey blessings from God to his people; so, under the Gospel, who can be so apt for this divine office, as he, that serves at the evangelical altar? And, if all our marriages must be, according to the Apostle's charge, made in the Lord, who is so meet to pronounce God's ratification of our marriages, as he, who is the professed herald of the Almighty?
As it is therefore requisite, even according to the Roman Constitutions, that he, who is betrusted with the cure of our souls, should, besides other witnesses, be both present and active in and at our domestic contracts of matrimony; so, by the laws both of our Church and Kingdom, it is necessary he should have his hand in the public celebration of them.
There may, then, be firm contracts; there cannot be lawful marriages, without God's ministers.
Whether there be any necessity or use of thrice publishing the contract of marriage in the congregation, before the celebration of it; and whether it be fit, that any dispensation should be granted for the forbearance of it.
THERE were, amongst the Jews, certain ceremonial observations, besides the precepts, which they called the Hedge of the Law; and such there cannot want amongst Christians; whose prudence must direct them, both to the ordaining and keeping of some such expedient rules, as may best preserve God's laws from violation.
Of that kind is this, which we now have in hand.
This public and reiterated denunciation of Banns before matrimony, is an institution required and kept, both by all the Churches of the Roman Correspondence *, and by all the Reformed.
Amongst which, as ours, is most eminent, so it hath still expressed the most zeal and care of the due observing of so wholesome a rite. Six several Canons † were made in our Provincial Synod, under the authority of King James, of blessed memory, in the year 1603, to this purpose; with as strict charges, restrictions, and cautions, as the wit of man could in this case devise. And the late Directory hath found cause to second so useful and laudable a constitution.
For the convenience, if not necessity whereof, we need no other argument, than the grievous mischiefs, that have followed upon the neglect of this ordinance. That one were enough, which is instanced by the Tridentine Synod itself; that some lewd persons, having secretly married themselves to one, take liberty to leave that match, and publicly join themselves to another, with whom they live wickedly in a perpetual adultery; the frequent practice whereof in those hotter climates we may easily believe, when we see, that, in our own more temperate region, the fear of hanging cannot hold some off from so foul a sin.
Let me add hereunto the late experiments of some odiously incestuous marriages, which, even by the relation of our diurnalists, have, by this means, found a damnable passage, to the great dishonour of God and shame of the Church. And hereupon the sad issue of stolen marriages, wherein parents have been most feloniously robbed of their children, are too feelingly known, and irrecoverably lamented. But, as for unfitness and inequality of matches, both for age and condition, to the too late repentance and utter undoing of both parties, they are so ordinary, that they are every day's occurrences.
And all these evils have sensibly grown, from the want of these public denunciations of Banns; partly upon the unhappy throwing open of the fence of discipline, and partly upon the surreption of secretly misgotten dispensations.
And, though that forementioned Synod of ours, seconded by royal authority, took the most probable course that could be conceived, the liberty of those faculties being continued, for the preventing of these abuses; as the restraint of the grant of them by any other, save those who have episcopal authority; and security to be given upon good bonds, that the coast is clear from all pre-contracts, suits of law, and prohibited degrees; that the full consent of parents or guardians is had; that the marriage shall be celebrated in the parish church, where one of the parties dwelleth; and, lastly, the oaths required of two sufficient witnesses, one whereof known
* Concil. Trident. Sess. 24. Decret. de Reformat. Matrimon. 62, 63, 101, 102, 103, 104. Concil. Trid. ubi suprà. Canons, ut suprà. Can. 101, 102, 103.
+ Constit, § Constit. and
to the judge, that the express consent of parents or guardians goes along with the match intended, and that there is no impediment from any pre-contract, kindred or alliance: yet, notwithstanding all this prudent caution, we have, by woeful experience, found our offices cheated, faculties corruptly procured, and matches illegally struck up, contrary to the pretended conditions; whereas all this mischief might have been avoided, if, as no marriage may be allowed but public, so those public marriages might not be celebrated, but after thrice publication of the contract in both the parish churches where the persons contracted are known to inhabit: for so, both the parents of either side cannot but be acquainted with the engagements of their children; and, if there be any just hindrance, either by pre-contract or by proximity of blood or affinity, it cannot be concealed; that so the snare of either an unlawful or prejudicial matrimony may be seasonably eschewed.
To this good purpose, therefore, it is no less than necessary, as I humbly conceive, to be both enacted and observed, that no marriage should be allowed of any person whatsoever, except perhaps the peers of the realm who are supposed to be famously known through the kingdom, without a solemn publication of their contracts at three several meetings to the congregation assembled; and that there may no dispensation at all be granted to the contrary, upon any whatsoever conditions. And, if some pretend bashfulness; others, fear of malicious prevention, as the Tridentine Doctors suggest yet, it is fit, that both should vail, in the inevitable danger of those mischievous inconveniences, which follow upon these clandestine matches and silent dispensations.
Whether marriages, once made, may be annulled and utterly voided; and, in what cases this may be done.
IN what only case a divorce may be made, after a lawful marriage, you have seen before: now you enquire of the annulling or voiding of marriages, made unlawfully; which, doubtless, may be done, by just authority, upon divers well grounded occasions: for, as it is an indispensable charge, Those, whom God hath joined together, let no man put asunder; so it no less truly holds, on the contrary, "Those, whom God hath forbidden to be joined, let no man keep together."
Our Casuists are wont to be very copious in this subject: distinguishing betwixt those impediments, which may hinder a marriage from being made; and those, which may undo and void the marriage once made.
They insist upon many particularities of both kinds; and some, perhaps, too many.
I shall instance only in those of the latter sort, which are unquestionable.
Whereof the first shall be, a misprision of the match; when one party is mistaken for another: as, when he, who, by a full contract, consented to marry with Anne, is, by a fraudulent substitution, put upon a marriage with Mary; whether upon the likeness of the woman, or the want of a discerning sense in the man, or by some cunning conveyance of the perfidious contrivers: for, certainly, it is the consent, that makes the marriage; and, if the hearts be not joined together by mutual agreement and affection, the coupling of the hands is but a ceremony utterly ineffectual. I doubt not, but it was in Jacob's power to have disavowed the match with Leah, whom his father-in-law had deceitfully obtruded upon him; being more injurious in changing his wife, than in ten times changing his wages; since his heart was not accessary to that match, which the darkness of the night and subtlety of Laban had drawn him into. The like case is in the marrying of a bondwoman, instead of a free; a base plebeian, instead of a person of honour. As, then, we use to say, that mis-reckoning is no payment; so we may well affirm, that a mis-carriage is no true wedlock, and therefore justly to be branded with a nullity.
A second may be, the fœdity and unnaturalness of the match; when the parties incestuously marry within the first collateral degree of brothers and sisters: the very mention whereof, even nature itself, not depraved, abhors: so as I cannot but wonder, that the Roman School should be so much divided in this point, while Bonaventure *, Richardus, and Durand hold such a marriage, even by divine law, a nullity; contrarily, Aquinas, Cajetan, Thomas de Argentina, and others, whom Covarruvias recites, defend this to be only an impediment by the canon law, and therefore that it may be in the Pope's power to dispense with so foul a matrimony: against whom, upon better reason, Scotus † and Dominicus à Soto prove such marriages, by the law of nature, to be utterly void and null; with whom all ingenuous Christians cannot but willingly concur in their judgments.
A third may be, the horribleness of a crime committed in the way to a wicked match: and that, of two sorts; the one of murder, the other of adultery: the former, when the wife hath conspired with the adulterer to murder her husband with an intent to marry the murderer, or in the like case the husband to murder the wife; the latter, when a man, living in a known adultery with another man's wife, contracts matrimony with the adulteress in the lifetime of her husband.
A fourth is, the indissoluble knot of marriage with a former stillsurviving husband or wife; the force whereof is such, as that it frustrates and voideth any supervening matrimony, except in the case specified in the foregoing discourse of divorce, during the natural life of the consorts. Many unhappy and perplexed cases have we
* Martin. Alphons. Vivald. Candelab. Aureum de Matrim, et partic. de Consanguin.
+ Scot. m. 4. d. 40.
Sot. ibid. q. un. art. 4.
met withal, in this kind: neither doth it seldom fall out, that the husband, being confidently reported for dead in the wars or in travel abroad, the wife, after some years' stay and diligent inquisition, finding the rumour strongly verified by credible testimonies and tendered oaths, begins to listen to some earnest suitor, and bestows herself in a second marriage; not long after which, her only true revived husband returns, and challengeth his right in that his lawful wife; pretending the miscarriage of letters and messages, sent by him in that forced absence. In this case, what is to be done? The woman hath cast herself upon the danger of a capital law, except she have expected the time limited by statute; or, if she escape, one of the husbands is to seek for a wife, whom both may not enjoy. Doubtless, the second marriage is, by ecclesiastical authority, to be pronounced, as it is, null; which, indeed, never had any true right to be: and the first must be content to swallow its own inconveniences.
A fifth may be, a violent enforcement of the match; when a woman is, upon fear of pain or death, compelled to yield herself in marriage; and is not persuaded, but affrighted into the bonds of wedlock surely, this is rather a rape, than a matrimony; and, therefore, upon utter want of consent, a nullity.
A sixth may be, a preceding, irremediable impotency, or incapacity of marriage duties; whether natural, or adventitious; whether by way of perpetual maleficiation, or casualty. I say, preceding for, if any such disability be subsequent to the marriage, the nullity is avoided: but, if the persons find in themselves, beforehand, such remediless incapability of a marriage estate, they shall be highly injurious to each other, and shall foully abuse the ordinance of God, in their entering into such a condition: for it is apparent, that the main ends of marriage are herein utterly frustrate; which were, by God's appointment, the propagation of mankind, and the remedy of incontinency; neither of which being attainable in such a defective estate of body, justly is such a match pronounced a nullity.
But, here, I cannot but take occasion, to commend the modesty of the women of our nation; amongst whom, there are so rare examples of suits, in this kind, prosecuted in our Ecclesiastical Consistories. It is not to be doubted, but there are many defects of this nature to be found every where; yet scarce one in an age of fers to complain, and call for redress; so as it seems they are willing to smother all secret deficiencies in a bashful silence: whereas those of other warmer regions, impatient of the wrongs of their conjugal disappointments, y out into open contestations; and fearlessly seek for those remedies, which the laws, provided in such cases, will allow them. Certainly, the merit of this modest temper is so much the greater, by how much more it is concealed from the world: and those of either sex, that are content to bite in their hidden grievances of this kind, are worthy of double honour from those consorts; whose injurious infirmities they both have not dis closed, and suffer in suppressing.