Ductor dubitantium, or, The rule of conscience in all her generall measures serving as a great instrument for the determination of cases of conscience : in four books / by Jeremy Taylor ...

RULE VIII. It is not lawfull for Children to enter into any lasting Course of life against the will or approbation of their Parents.

THis Rule contains two great Cases.* 1.1 The first is concerning the states of Religion; the other is concerning the states of Civil life.

1. It is not lawfull for children to take them any religious vows,* 1.2 or enter into any of those which are called states of Religion, viz. to take upon them the state of single life, to be Priests, Monks, Friers, Hermits, or any thing of the like nature, without the consent of their Parents.

Thomas Aquinas entred into the Dominican Order,* 1.3 and became a Frier without the consent of his parents: and that unjustifiable action begat a more unjustifiable doctrine, Post annos pubertatis posse liberos se voto reli∣gionis obligare, absque voluntate parentum,* 1.4 That afer 14 years of age or the first ripenesse, it is lawfull for children to take upon them the vows of Religion, whether their parents be willing or unwilling. And after his time it grew into a common doctrine and frequent practice; and if a Monk could persuade a yong heir,* 1.5 or a pregnant youth into their cloysters, they pre∣tended to serve God, though certainly they serv'd themselves, and disserv'd a family. The ground they went upon was, the pretence of the great san∣ctity of the state Monastical; that it was for God and for religion; that to serve God no man that can chuse hath need to ask leave; that if the Father be superior, yet God is the supreme; that it is Corban; that if the yong man or maiden be given to God, he is given to him that hath more right to him or her then his parents; that religion in all things is to be preferr'd; and that although the parents have a right over the bodies of their children, yet of their souls they are themselves to dispose, because theirs is the big∣gest interest and concern: and whereas God hath commanded to Honour our Father and Mother, we know that God is our Father, and the Church is our Mother; and what does accrue to these, is no diminution to the o∣thers right.

Against all these fair pretences it is sufficient to oppose this one truth,* 1.6 That Religion and Piety cannot of themselves crosse each other, but may very well stand together, and nothing is better then to doe a necessary du∣ty. And there needs not much consideration to tell which is better, to make our love to God and our love to our Parents, and our duty to them both to stand together, or to fight one with another. God intends the first, that is certain, for he is not the author of division, nor hath he made one good contrary to another. For if one be set up against another they are both spoiled. For that duty that goes away is lost; and that duty which thrust it away hath done evil, and therefore is not good. If therefore it be possible to doe our duty to our parents and to love God greatly at the same time, there needs no more to be said in this affair, but that we are to re∣member

that a man may greatly serve God, and yet never be a Frier or a Priest; and that allowing or supposing that these are great advantages, or ra∣ther engagements of duty, yet it is certain that no state of perfection can be set forward by doing evil; and he enters ill into the state of perfection that passes into it by the door of Undutifulnesse.

Now then,* 1.7 we are certain of this, that Parents have the first right, and the first possession, and that to dispossesse any one of his rights against his will is great injustice, and therefore that no end can sanctify it; and that it would be a strange religion which teaches impiety for pious conside∣rations: and therefore without further inquiry, it follows that a Son may not upon any pretences of a religious manner and circumstances of life sub∣duct himself from his Fathers power, and put himself under other govern∣ments with which his Father shall have nothing to doe. A Son hath no power over himself, for he belongs to and is under the power of another; & therefore if he does subduct himself, he is undutifull, and impious, & unjust, and does not Honour his Father and his Mother. But he that does per∣suade the Son from his Fathers house into a Monastery, is reus Plagii, he is a Man-stealer.* 1.8 Qui Patri eripit filium, educatori alumnum, Domino ser∣vum, Deo efficit impium, educatori ingratum, Domino nequam, said Tertul∣lian, He that debauches a Son, a Pupil, or a Servant, and snatches them from their Father, their Guardian, or their Lord, makes them impious, ingratefull and vile. And because this was done by some upon pretence of piety, the Council of Gangra forbad it upon a curse.* 1.9 Quicunque fil•••• à parentibus pratextu Divini cultûs abscedunt, nec debitam reverentiam im∣pendunt illis….anathema sint. Pretence of the Divine service is no good warranty for disobedience to parents; and they who so neglect their Fathers blessing, will meet with the curse of their Mother. And this Canon 〈◊〉〈◊〉 cited and renewed in the sixth Council of Constantinople. * The Council of Tribur forbids expressely a yong maiden before twelve years of age ••o enter into a Monastery without the consent of her Guardian. Gratian citing this Decree, addes something of his own; for it is not known whence he had it, except from the degenerous and corrupt practices of his own times. Si verò in fortiori aetate adolescens vel adolescentula servire Deo ele∣gerit, non est potestas parentibus prohibendi, If the yong man or maiden be of greater age, the parents have no power to forbid him: which ••s a clause which is not to be found in the Codes of Councils, in any editions old or new. But when Monastical life had reputation and secular advantages upon religious pretences, then the advocates and promoters of it were willing by right and wrong to set it forward. But the corruption is plain, and appa∣rently against the doctrine and practices of the Fathers of the Church.

S.* 1.10a 1.11 Ambrose and S.b 1.12 Austin say that a Father or Mother ought not to hinder a son or daughter from entring to a Monastery. But the▪ things were so ordered that the entry thither was not a perpetual bond, but a going thither as to a Christian School, a place for institution and holy practice, and from thence they might return when they would, they might serve God and their Parents too: the profession of a Monk was then nothing else but priscae liberaeque vitae ac pure Christianae meditatio, a meditation and in∣stitution of a Christian life according to the rate of the Primitive simplici∣ty,* 1.13 liberty and devotion. But besides this, though they exhort parents not to hinder their children, yet they affirm that they have power to doe it▪

and they may if they will; as appears amply in S. Austin's Epistle to Ecdicia, and in his 233. Epistle to Benenatus. But most plainly and dogmatically it is affirm'd by S. Basil,* 1.14 liberos non esse recipiendos in Monasteriis, nisi à pa∣rentibus suis offerantur, Children are not to be receiv'd into Monasteries un∣lesse their parents present them: and when S. Gregory Nazianzen had against his Fathers commandement run into a Monastery, he began to bethink himself what he had done, and found that without impiety he could not be contumacious against his Father, and therefore left his solitude and return'd home. Et hoc facio (saith he) jussu Dei magis quam hominum metu. Ita∣que, O pataer, dicto jam audienti praeb•• benedictionem. This he did in obe∣dience to God, and not for the fear of men; and therefore upon the account of his obedience and return, he begg'd his Fathers blessing. But besides this, there were two remarkable examples which abundantly conclude this duty. * The one was of Heliodorus, who together with S. Hierom had undertaken a Monastical life by vow; but finding that by Piety and Nature he was to regard his onely sister and her son, he return'd to her house, and took upon him the habit of the Clergy, and left that of Monks. Against him S. Hierom, who was then a yong man, newly come from the Universi∣ty and the schools of Rhetoric, storms very much, and saies some things which when he was older and wiser he changes and revokes, as appears in his Epistle to Nepotian, where he imputes his former sayings to his juve∣nile years and learning. Now though Heliodorus had no parents when he undertook a Monastical life, and therefore had his liberty; yet it is there∣fore certain he believ'd he ought not to have done it without the consent of parents if they had been living, because he did suppose a lesse Piety, even to his Sister and his Nephew, to be a sufficient reason for him to leave his solitude and shew Piety at home. * But the other instance is more mate∣rial. Stagirius was made a Monk, not against his Fathers commandement, but against his Counsel. The Father was very unwilling, but durst not ex∣pressely forbid it, upon some scruples which were put into his head by the humors which were then beginning. But because he had neglected his Fa∣thers Counsel, and caus'd trouble to him, Stagirius was vexed with the Devil,* 1.15 and S. Chrysostome took great pains to comfort him. But afterwards the manners of men grew worse, and all religion was inclosed in a Friers habit, and it grew to be esteemed excellent to enter into a Monastery, and whatsoever did hinder it was to be despis'd, or us'd like a temptation; and the Orders of Religion grew potent and prevail'd over private interests and private religion, and by degrees it enter'd into unsufferable mischiefs and impiety. It was sometimes restrain'd by good laws, so that it could not grow so fast,* 1.16 Charles the Great made a law concerning it: De pueris verò sine voluntate parentum ut tonsurentur, vel puellae velentur, modis omnibus inhibitum est, Boys must not be shorn nor maidens vail'd without the con∣sent of their parents. And to the transgressors of this law a fine was im∣pos'd, the same with that which was appointed in the Salic law* 1.17; which did equally forbid them to be slain and to be shorn. For by religious pre∣tences not to doe kindnesse to their parents our Blessed Saviour called hy∣pocrisy in the Pharisees; and therefore upon the like pretences to doe them wrong, to take their right from them, to dispossesse them of their dearest pledges, must needs be so mcuh the worse. It is that which our Blessed Saviour calls Hypocrisy, and dishonouring our parents: It is that which the Church does call an anathema, which the Laws call plagium, or man∣stealing: It is homicide in the account of the Imperial laws: and S. Bernard

calls them wolves that doe it, in his first Epistle, which, as the story runs, was not written without a Miracle.

The other great case is in the Marriage of their Children,* 1.18 concern∣ing which the sentence is ready and acknowledged in the greatest part of it.

2. It is unlawfull for Children to marry without and against the consent of their Parents.

That such marriages are not licitae is confess'd on all hands; that is, the son or daughter sin against God and the laws, by marrying against his Fa∣thers Commandement.

Adeone impotenti animo esse,* 1.19 ut praeter civium Morem atque legem, & sui voluntatem patris, Tamen hanc habere studeat, cum summo probro?

said he in the Comedy. It is dishonourable, and a shame to take a wise against the will of his Father; it is against the manners and the laws of all Republics. But whether they be legitimae or no is a great question; that is, whether they be wholly invalid and null in law, or in case they be valid, whether or no they suffer any diminution, and what it is.

Amongst the Ancients,* 1.20 and for a long time in the Civil law, such mar∣riages were esteem'd illegitimate, and no better then a meer Concubinate. So Ovid intimates in the marriage of Pyramus and Thisbe;

—Tedae quoque jure coissent, Sed vetuere patres—

If the parents had not forbidden, the marriage had been legitimate; but therefore not then when they are forbidden: and therefore as incestuous marriages were not onely Impious but Null, they are not onely sinfull in the entry, but all the way; so are these, alike evil in all the progression, though as yet they have not a proper name in law, as the other have. But Apulcius is more expresse;* 1.21 Impares nuptiae, & praeterea in villa sine testi∣bus & Patre non consentiente factae, legitima non possunt videri, ac per hoc spurius iste nascetur. Unequal marriages, clandestine, and made without the Fathers consent can never seem legitimate, and therefore the children that are born will be illegitimate. And Musaeus observes in the marriage of Lean∣der, that it was ominous and unlucky upon this reason, because

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The Father and the Mother did not sing the Hymenaeal or Marriage song The same thing was observ'd also by the Christians;* 1.22 for when Tertullian is recounting the auspicious signes and causes of a blessed marriage, he puts this in, Unde sufficiam ad enarrandam felicitatem ejus Matrimonii quod Ec∣clesia conciliat, & confirmat oblatio, & obsignatum Angeli renunciant, Pater rato habet? That marriage will be very prosperous which is blessed by the Church, made solemn by publication and the rituals of religion, and esta∣blishe'd by the consent of the Father. For without it it is not onely inauspi∣cious

and unlucky, but illegal,* 1.23 unfirm and insufficient. Nam nec in terris filii sine consensu Patrum ritè & jure nubent, saith he. For he liv'd in a time when the law pronounc'd such marriages illegal, and the children ba∣stards. For as some contracts are invalid unlesse the solemnity of the law be observed, and Testaments are ineffective without such a number of wit∣nesses; so the law requires the consent of Parents to make the espousals to be a legal and valid contract.* 1.24 Non videri justum filium qui ex eo Matri∣monio natus est cui Pater non consensit, said Paulus the Lawyer: and this went so farre, that if a daughter were expos'd by her Father like a child of the people, and no care of her education or alimony taken, yet before the time of Constantine, that daughter might not marry without the leave even of that unnatural Father. And amongst the children of Abraham this was so sacredly observed, that even there where by the event of things we per∣ceive that the marriage was design'd by God, yet it was not to be acted but by the Fathers willingnesse;* 1.25 as appears in the cases of Isaac and Rebecca, Sampson and his wife at Timnath.* 1.26 Thus Agar took a wife for her son Ishmael, and Jacob went into Mesopotamia for a wife by the consent of his Father and Mother; and Sichem ask'd of his Father Hemor that he would get him the daughter of Jacob to wife.* 1.27 And the words of the Law were directed to the Father,* 1.28 not to the Son; Non accipies Uxorem filiis tuis de filiabus eorum, & filiam tuam non dabis filio ejus: and in the New Testament, He that giveth his Virgin in marriage doth well: still it is the Parent that hath the right and the power; it is the Parent that can make the contract;* 1.29 he is the person suppos'd onely competent in law.

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said Hermione in Euripides, My Father is to take care of my espousals; that's no part of my care or determination.* 1.30 And S. Ambrose, by the example of Rebecca, said that the choice of a husband for his daughter is to be permit∣ted to the Father.

And indeed by these instances and the perpetual practice and persua∣sion of the old world we cannot suppose it to be lesse then a Natural law,* 1.31 or a natural reason, of great effect, or of great necessity. When the daughter of Cyaxarus was ask'd whom she would marry, she answer'd, Cyrus; for when they were children together he had delighted her with pretty songs and conversation: And when she was offer'd to him with a royal robe, Jewels and a crown of gold, and all Media for her dowry, Cyrus answer'd,* 1.32 Et genus & puellam & dotalia laudo, I like the Lady, her dow∣ry and her family, but I must have these agree with the mind of my Father and my Mother, and then I will marry her. For (as Panaegyris in Plautus told his sister) in Patris potestate esse situm liberorum matrimonium, quibus faciendum hac in parte sit quod Patres imperant, Childrens marriage is in the power of their Father, and they must doe what their Father commands: and Simo would not allow Pamphilus to call him Father,* 1.33 when he disobey'd him in this particular,

Quid, mi Pater? quasi tu hujus indigeas Patris. Domus, Uxor, liberi inventi invito Patre.

But Pamphilus in despite of his passion, suffered his duty to prevail,

Tibi, Pater, me dedo: quidvis oneris impone, impera. Vis me Uxorem ducere? hanc vis amittere? ut potero feram.

Pamphilus offer'd to quit Glycerium if his Father pleas'd, and yet he had been contracted to her, and had a Son by her. Certain it is, these contracts were to all purposes invalid by the Civil law both of the Greeks and Ro∣mans. Nuptias consistere non posse nisi consentiant omnes, hoc est, qui coeunt, quorumque in potestate sunt, saith the Law, Inst. de Nuptiis. ff. de ritu nupti∣arum.* 1.34 And in the Jus Graeco-Romanum there is an expresse Canon, Qui in aliena potestate sunt eorum pacta nihil habent firmi: propterea quae citra voluntatem nuptiae fiunt eorum penes quos potestas est, pro scortationibus ha∣bentur. This is peremptory. Such marriages are fornications, and there∣fore the children are Bastards. And of this Justinian gives this account, Just••••••. nuptias inter se contrahunt qui secundum praecepta legum coeunt, Those marriages are true which are confederated according to the precepts of laws, when the contractors are of fitting age, whether they be the chief, or the sons of families. Onely if they be sons of families, they must have their con∣sent in whose power they are. Nam hoc fieri debere, & civilis & naturalis ratio suadet, in tantum ut jussus parentum praecedere debeat. For that this ought to be done, that the Fathers consent must be before the marriage, not onely is concluded by civil or political reason, but also by the natural.

Thus it was in the Natural and in the Civil law;* 1.35 and at first, and for a long time after, it was no otherwise in the Canon law. To this purpose is that famous Decree of Pope Euaristus;* 1.36 Aliter legitimum non sit conjugi∣um nisi ab iis qui super ipsam foeminam dominationem habere videntur, & à quibus custoditur, uxor petatur, & à parentibus & propinquioribus sponsetur, & legibus dotetur. Euaristus had enumerated a great many things which were fit (as he thought) and much for the honesty and decency, the blessing and prosperity of the marriage; as attending to solemn prayers for two or three days, oblations and bridemen, and some other things which are now out of use: he proceeds to that which was essentiall to the contract, the con∣sent of parents; and aliter legitimum non sit, it cannot otherwise be legiti∣mate: and he addes, aliter verò praesumpta non conjugia, sed adulteria, vel contubernia, vel stupra aut fornicationes potius quam legitima conjugia esse non dubitatur, Marriages without the consent of parents are adulteries and ravishments, fornications and concubinate, any thing rather then marri∣ages.* 1.37 To this accords that Canon of S. Basil, Puellis quae praeter Patris sententiam fornicatores secutae sunt reconciliatis parentibus videtur res re∣medium accipere: sed non protinus ad communionem restituentur, sed triennio punientur. If Fathers will pardon their daughters that without their leave run after wanton persons, their crime as to him seems to be taken off; yet let them be put for three years into the station of Penitents. Upon this Canon Theodorus Balsamon saies,

that by [Puellis] or Girles, S. Basil means those that are under their Fathers power: and that if any such give themselves up to their lovers without their Fathers consent and are dishonour'd, although they to themselves seem to be married, yet such marriages are not valid, they cannot stand: and for this there is no remedy but being reconcil'd to their Fathers.

But S. Basil is also as expresse him∣self in his text as Balsamon in his Commentary, for in his 40^•h Canon he saies

that marriages without the consent of them in whose power they are, are fornications and not marriages

. And therefore the Council of Carthage requires that when the bridegroom and his bride are to be blessed by the Priest, that is, solemnly married, they should be presented to the Priest by their parents or their deputies; which thing is carefully to this

day observed in the Church of England. For according to the saying of S. Leo,* 1.38 Paterno arbitrio foeminae viris junctae carent culpâ; If maidens be joyn'd to their Husbands by the consent of their parents, there is then no∣thing but innocence, no body hath cause to complain. But that's not all. For Gratian expounding these words, saies that from hence [datur intelligi quod Paternus consensus desideratur in nuptiis, nec sine eo legitimae nuptiae ha∣beantur] we are given to understand that the Fathers consent is requir'd, and without it the marriages are not to be accounted legitimate: and for it he quotes the words of Euaristus before mention'd. But the Council of Aquisgrane did not onely separate such marriages when the maiden was stoln away without her parents leave, but would not allow that ever after they should be man and wife,* 1.39 as we find in Burchard; and the same was ve∣rified in the Council of Melda, which for it's warrant quotes a synodal de∣finition of S. Gregory to the same purpose.

The Church was indeed very severe against such undutifull proceed∣ings and rebellions against the supreme natural power;* 1.40 and therefore the Council in Paris & divers others did anathematize them that so married,* 1.41 & even when they were reconcil'd to their parents did impose on them severe penances. But because when things were once come to that passe, Fathers perceived that the reputation of their children was lost, and that it was not easy to get other honest Matches for their children, and especially when Marriage began to be called a Sacrament, and some scruples were by the Clergy cast into this affair, and because men were willing to make the best of a bad Market; the Fathers gave over making use of this power given them by the laws, and thought the public penances were castigation suffi∣cient. But then according to the nature of all good laws and manners running down the hill, this thing never left running till children had leave to despise their parents, and marry where and when they pleas'd; and though it was said to be a fault, yet factum valet, fieri non debuit, it was decreed in the Council of Trent to be valid and effectual.

But now this sentence which indeed relies upon some reason and very great authority,* 1.42 and is wise and fit to prevent much evil in families, is yet very severe, and ought to receive some allay; which when I have represen∣ted upon the general consideration, I shall endeavour to give it a right un∣derstanding, and describe the truth that lies between the two extremes, and was yet never affirm'd and describ'd by any one that I know of, but is de∣terminable by a just weighing of all that which very many wise men have said, being put together.

First therefore I consider what Quintilian said:* 1.43

If it be lawfull at any time for a son to doe an action otherwise unreprovable without the con∣sent of parents,* 1.44 certainly liberty is in nothing so necessary as in marriage.

Ego eligam cum qua victurus sum, ego comitem laborum, sollicitudinum, cu∣rarum ipse perpendam. Quis enim amare alieno animo potest? It is fit that I should chuse her or him with whom I must always live, the partner of my joys and sorrows, the companion of my cares, the Father or the Mother of my own children: for it is impossible that a man should love with any affe∣ctions but his own. And if Pamphilus can love none but Glycerium, it will be hard for Simo, whose fires are extinct by age,* 1.45 to command his son to burn and pine away without remedy and pitty. It was better which Pausanias

tells of Danaus, that he gave his daughters leave to chuse their husbands; and Herodotus tells that Callias the Athenian was much commended by the Greeks because he permitted to his daughters to chuse what husbands,* 1.46 not he, but themselves lik'd best.

But the case is to be determin'd by these three Propositions.

1. When sons or daughters are of competent years and have the use of rea∣son,* 1.47 they can naturally contract marriages; that is, there is nothing naturally requir'd but that they can consent, and be of a marriageable strength. Suf∣ficiat solus consensus illorum de quorum, quarumque conjunctionibus agitur, said Clement the third,* 1.48 Consent alone makes marriage; that is, it makes a marriage naturally valid, if it be done by those persons who naturally can consent. For that the consent of parents is not essentially necessary to the validity of the contract naturally, appears in many instances. 1. Because children can contract when their parents are dead. 2. Because if their Father be dead, and their Mother living, the son that is of years of dis∣cretion is not under his Mothers power as to that, but that upon great and good reason he may marry by his own choice. 3. A son may marry at the command of a Prince, when it is for the public good, though his Father at the same time regard nothing but his private. 4. If a Father say nothing to hinder it, though he be secretly unwilling, or owns the unwillingnesse, but behaves himself negatively as to any cooperation, yet the son may marry: which demonstrates that the Fathers consent is no active principle, ingredient into the marriage, but a privative or a negative onely; that is, he can forbid it, and so hinder it, but it is not therefore naturally invalid; that is, he can legally prevent it, but not naturally annul it. 5. If the mar∣riage of the son be not onely of regard and advantage to the son, but so far from doing injury to the Father, that it does him honour; the laws de∣clare that such a marriage is valid, though the Father out of humor dis∣agree. And therefore when the law saies that the son cannot contract mar∣riage but with his Fathers consent, the Doctors limit it amongst other cases to this especially,* 1.49 quando filius duceret uxorem turpem & indignam, when the son marries dishonorably; for then (say Bartolus and Decius) there is injury done to the Father: so that the prohibition lying for this reason, when the case is contrary to the reason, the extraordinary effect must be contrary to the ordinary law. 6. Whatever the law decrees in detestation of childrens disobedience, yet the marriage though to some civil effects it is null'd, yet that it is naturally valid appears in this, because the son that is born of that marriage is the Grandfathers own, and if the Father die be∣fore the Grandfather,* 1.50 the Grandchild must inherit. So that the punish∣ment is but personally on the Son, and is not a perfect invalidating of the marriage. And this very case was determin'd in the Parliament of Har∣lay in behalf of Marguerite de Nesdes her children, the Nephews of her husbands Father, in the year 1584. 7. If the Father be unreasonable, and offers to his son or daughter an ugly, a deform'd, a vitious or a base person, and gives him no other choice, and the son cannot contain and live a single life, by the consent of all men the son may refuse, and he cannot but chuse another.* 1.51 8. The same is the case, if the Father be negligent; then by the law a son sooner and a maiden after 25. years of age can chuse for her self. * 1.52 An sedere oportuit domi virginem tam grandem? said Phalaris. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 For it is intolerable that a maid should be suffer'd to passe the

flower of her age at home.* 1.53 And when the Gemara Sanhedrin had said [Doe not prostitute thy daughter, to make her a harlot] Rabbi Eliezer said this was spoken to him that marries his daughter to an old man. R. Akiba saies, it was meant of him qui domi retinet filiam nubilem, that keeps his daughter at home too long. Which two last cases relying upon the same reason produce the same effect, That the Fathers consent, though highly to be requir'd, yet is not essentially necessary; it may be a valid marriage without it. 9. And this is true also in case of Emancipation* 1.54, or quitting the Son from the Fathers power; he is sui juris, and can marry where he will, and yet he owes to his Father all the obedience to which by the law of Nature he was obliged. 10. If a Son marries without his Fathers consent, the law saies it is void; but yet it is not so void, but that the Fathers ap∣probation makes it valid without marrying again: which could not be if it were naturally invalid, but therefore it is both naturally and Ecclesiasti∣cally good.* 1.55 Quod enim ab initio malè factum est, parentum postea consensus reparare videtur, said Balsamon: it was ill done at first, and the Fathers consent repairs the dammage; but if it was invalid and null at first, nothing can make it alive upon the first stock. Quod enim ab initio non valuit, pro∣gressu temporis valere non debet, saith the law. 11. Servants or slaves in the Civil law were as much in the power of their lords as sons in the pow∣er of their Fathers; as much I say, though not for so many reasons; and yet the marriage of servants was valid in law though contracted without the consent of their Lords;* 1.56 as Pope Alexander the third wrote in a decretal Epistle to the Arch-bishop of Canterbury: and therefore that the marriage of sons and daughters may be so too, that is, not to be dissolved, not to be declar'd null in conscience, I can find no reason to the contrary. 12. We find in Scripture that Esau's marriages were valid and went on, though con∣tracted against the interest of that family, the pleasure of the parents and, as Lyra saies, without their consent. It is true indeed that the Jerusalem Thargum saies that they were a grief to Isaac and Rebecca because they were undutifull, and proud, and idolatrous, refusing to be taught by their Husbands Father or Mother. But when I consider that it is not onely af∣firmed by Rebecca that they were an affliction to her,* 1.57 but observ'd at the very first taking of them in, that they were a grief to both of them, and that Esau afterwards to gratify his Father did marry his Cosen german, the daughter of his Uncle Ishmael; the opinion of Lyra seems most proba∣ble, and that Isaac and Rebecca did not consent, and were not pleas'd with those first marriages. But if this should fail, there are arguments enough besides to evince that naturally such marriages are valid, though at no hand they ought to be done.

But what then shall we say to all the former discourse,* 1.58 which prov'd that those marriages were illegitimate, and the conjunctions no better then concubinate? Does all that heap of things, and sayings of wise men, and laws Ecclesiastical and Civil and Natural, effect nothing? or doe they pre∣vail intirely? That they effect something their own strength does evidence; that they doe not prevail to effect a natural nullity in marriage, the contra∣ry arguments describ'd in the former Number doe sufficiently prove. What then is the conclusion?

From hence we may learn it.* 1.59 2. Although the marriage is naturally valid, yet that natural validity can have this effect onely, that it can for ever

bind the conscience of the engaged parties to faith and mutual love, and to cohabitation when it is not hindred; and it is, even when it is most of all forbidden, yet potentially legitimate, that is, it wants no features and li∣neaments, nor life, but it wants solennity and publication; that is, it is like an Embryo in his Mothers womb, there it must stay till the law gives it name and birth. * For it is to be considered, that although the yong folks can contract even against their parents will, yet they can be hindred from possession: Not onely because natural rights can be impeded in their use and challenge by the Supreme Civil power; but because there is in marri∣age something that is wholly in the power of the Civil law. For in mar∣riage there are three things, Unity, and Society, and Mystery. This last is not of present consideration, because it is wholly of spiritual nature, and therefore of Ecclesiastical cognisance. But of the other two, the first is in the power of the Contractors, the latter is in the power of the Com∣mon-wealth. From union of minds, and obligation of mutual duties and affections, and perpetuity of relations they cannot be kept by their dissen∣ting parents, or by the Civil law. But from being a society, from begin∣ning a legal family, from rights of succession, from reckoning descents in their line, and from cohabitation they can be kept by that power which is the Supreme in the establishment and conduct of all societies. And the consequent of this will be, not onely that such persons shall loose all civil benefits and profits of inheritance, that is, all that can come from Society, but even their very Unity will be disparag'd, so as it shall be esteem'd no better then fornication; not that it is so before God, or is against the vertue of Chastity, but that it is so in the Civil account, and is against the laws of Marriage. It is in this as it is in the case of Raptus or Ravishment. In the Civil law, he that takes away a mans daughter without the consent of her parents rapuisse dicitur is a Ravisher: but it is not so in the Canon law, it is not so in Nature or Conscience. Raptus ibi dicitur admitti ubi nihil ante de nuptiis dicitur: If there was no treaty of marriage, it is a rape; but if the man was secretly betrothed, to carry her away and lye with her is no rape, licèt parentes reclamarent,* 1.60 although the parents were against it, said Pope Lucius the third. Now to call this a rape, and to punish it as if it were, is in the power of law: just as the stealing of a knife out of a Church, or a Chalice out of the Clercs house, may by law be called Sacrilege; and then it is so to all the purposes of law; though before God it may not differ from simple theft. So for yong lovers to lye together before publication is by the Canon law called Antenuptialis fornicatio, and is punished as if it were so indeed: and yet though it be evil in the eye of men, and upon that account is so in it self, yet in the eyes of God it is not fornication; God himself having expressely called a Betrothed woman by the name of wife,* 1.61 and punish'd her falshood to her husband before marriage with the same evil as adultery. And thus it is in the present inquiry: Marriage of per∣sons in minority is naturally invalid, because they are naturally unable to make a contract for their good, they understand it not; but if they be of good years, though under their Fathers power, they are naturally able, but politically unable, and therefore are inevitably engag'd in an evil condition, and they have sinn'd, and it is a miracle if they doe not sin again, and abide in it upon this account. For the marriage is good within doors, but it is not good abroad: they are both oblig'd, and yet cannot pay their ob∣ligation: this marriage is not good in law, and yet they cannot chuse ano∣ther in conscience: it was by their own fault, and therefore they must bear

their own burden: they are guilty of fornication, but it is not a sin against the seventh Commandement: they have not dishonour'd their own bodies between themselves, but they have dishonour'd them before all the world besides. And as covetousnesse is idolatry, and rebellion is witchcraft, so this disobedience is unchastity, it is uncleannesse against the fifth Commandement: and therefore it is no legal marriage, but unlawfull at first, and remains so all the way, till a legal remedy be found out. For this things is rightly stated by Paulus the Lawyer:* 1.62 Matrimonia haec jure non contrahi, sed tamen con∣tracta non solvi, Such marriages ought not to be made, but being made they can∣not be dissolved. And he gives an excellent reason for it; contemplationem enim publicae utilitatis privatorum commodis anteferri. It is of public con∣cern that marriages naturally valid be not rescinded; but it is but of private emolument that the Father should be pleas'd in his daughter in law: and therefore although the* 1.63 Law of God and man doe their several shares for the securing of every interest and concern, yet that regard which is greatest and more public is to be preferred. Now for the understanding of the full effect of this, and for the verification of it, it is to be consider'd, that laws are called Perfect, or Imperfect. A perfect law is that which either in it self or by the Magistrate rescinds whatsoever was done against her prescript. l. Non dubium, C. de legib. The imperfect law is that which does not indeed rescind the thing, but inflicts a punishment upon the transgressors: such as was the lex Furia Testamentaria, and such as is the law concerning these forbidden marriages against their Fathers will; the Marriage must stand, and the married must lie under the punishment* 1.64: they in the civil law were reckon'd as Concubines, and their Children bastards, and there was neither dowry nor marriage allowed. And upon this account, all those sayings which I brought in the former numbers † are true: the marriages were then civilly null, that is, in estimation of law and to all intents and purposes of law were outlawed, and made uncapable of civil benefits and advantages; but the law could not make them naturally null:* 1.65 and in the Law of Moses, although a maiden that had been humbled was to become the wife of him that did it, and to have her dowry accordingly, if her Father pleas'd, and he might chuse whether he would or no; yet there is no footstep or signe, that if he had betrothed himself to her, and lyen with her, that then she was not his wife, or that her dissenting Father could make it null. Indeed divorces were so easily granted then, that even in this case they had a re∣medy at hand: but we are tied up by stricter and more holy bands; and since Christ reduc'd it to the first institution, and that it was made to represent the union of the Church unto him, it is not so easy to untie this knot. So much as is in the power of law, so much is fit to be done for the securing the Fathers authority and his rights according to the interests of religion and the public: but the laws themselves have a limit; and though they can verify all their own acts, yet they cannot annul the Act of God: Quae Deus conjunxit, nemo separet. Conjunction of marriages is by a law of God and Nature, and to it nothing is requir'd but a natural capacity and an ex∣plicit consent, and therefore this no man can separate. But yet,

3. The Father hath over his children a double power;* 1.66 a natural power and a political. His Natural power is intire, absolute, and unlimited, except where the Law of God or of Nations does intervene; but then it lasts but till the children are able to understand and chuse, and shift for themselves. For there are some natural and personal rights relating to duty, to the perpe∣tuating

the kind, to defending and providing for themselves, which are not to be taken from us, unlesse they be as well or better supplied otherwhere; for some can, and some cannot. The desires relating to marriage have in th••m so much natural necessity, and so much relation to personal duties, that either they must be in our own powers, or else our salvation must de∣pend on other men.* 1.67 Nescis nostri arbitrii esse Matrimonia? Affectus nostri nobis non serviunt. Non potes efficere Imperio ut vel amen quam velis, vel oderim. Matrimonium vero tum perpetuum est, si mutuâ voluntate jungitur. Cum ergo quaeratur mihi uxor, socia thori, vitae consors, in omne seculum mihi eligenda est.

My wife is to dwell with me for ever, the half of my self, my lasting joy or my lasting sorrow, and if I doe not love her we cannot live comfortably, and to love I cannot be commanded, for my affections are not at my own command, much lesse at anothers:

and therefore the conduct of this belongs to my selfe, and to none else, for so much of the interest as the union and conjunction comes to; and in this I am no mans subject, when I am a man my self.

But the Father hath a political power.* 1.68 Patria potestas est jus quod∣dam quod habent qui sunt de Imperio Romano in liberos Naturales & legitimos,* 1.69 say the Lawyers. The paternal power is defin'd by the measures of the Roman law; and so it is in all Countries by their own measures. Now in most Countries, especially of old, the Father had so much power given to him over his children that they were a part of his possessions; they ac∣quir'd what they did acquire for their Father, not for themselves; they might be pawn'd, they might be sold three times for their Fathers profit; they must last and abide under this power till they were dismissed or eman∣cipated by their Father. Now whatsoever rights were consequent to these powers were so wholly to be dispos'd of by the Fathers, that whatsoever actions of the sons did destroy those rights were so far, and in relation to those rights, null and invalid. When therefore the Father had by the Ci∣vil law a power over the person of his son, so as to have the profit of his labours, the issues of his marriage, his children to succeed, the sons wife to be partner of his goods and his holy rites, and to perpetuate his family, he had by the Civil law power to dispose of him so far as concern'd these things, but no further. And therefore the Father had power to disinherit the son that married without his Fathers leave; and all the Emperors and all the Lawyers till the time of Constantine did allow it: but then it felt variety and change, and it was limited to the case of the sons marrying dishonourably.

The result of these three Propositions is this,* 1.70 That every Common∣wealth hath power to extend or to streighten the Fathers political power, & to give sentences and judgements upon the actions that relate to such power: and if the law does declare the children of marriages against the parents will to be bastards, they are so; and the Son not to succeed in his Fathers estate, it must be so; and the marriage to be a concubinate, it must be accounted so; and the conjunction to be uncleannesse, it must be called dishonourable, and may be punished as if it were so: and this must last so long till the son be by the same law declar'd not to be under his Fathers power as to that particular; and when it is so, he can then chuse for himself without fraud or detriment; though even then also he hath upon him two bands, Reverence and Piety, from which the son can never be emanci∣pated

as long as he lives, and as long as he can be obliged to be a thankfull person, ever remembring what the old Sibyll said, that they deserve damna∣tion

… quíve parentes In senio linquunt, neque praemia digna rependunt Pro Nutricatu, vel qui parere recusant, Aspera vel contra dixerunt verba parentes,

who leave their parents in their old age, who speak words against them, who doe not pay their thankfull duty for their alimony and education, and who refuse to obey them, viz. according to the laws, and according to the exigence of reverence and piety which must be for ever.

Of exemption from the power of Fathers.

For by this means we shall the shortest and truest answer the inquiry,* 1.71 when a Son is free from his Fathers power, and how long he is 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, as Demosthenes his expression is,* 1.72 subject to the necessity of the Fathers laws. I answer that, in those things which are parts of natural power and relate to personal duties, the Father hath always a power of Counsel, which must be regarded by the ties and analogies of reve∣rence and piety, and the reasons of the things themselves. But in those powers which the law hath given him, he is to abide in them as long as the law permits; for in this there is no other measure but the law. But in these and all other things whatsoever, when by nature and the laws we are quit from the Empire of the Father, and that power which is called Castigation, or the power of command and coercion, we are still tied to fear him with a reverential fear, and to obey him with the readinesse of piety in all things where Reverence and Piety are to have regard and prevail, that is, where∣ever it is possible and reasonable to obey. Quae praerogativa ex beneficentia acquiritur perpetuo durat, said Aristotle, The authority that is acquir'd by boun∣ty is perpetual.

And therefore even Marriage it self does not quit the children from their duty:* 1.73 Not onely by force of Civil laws, in which sense the sons wife was in the Fathers power as well as the son himself till he was emancipa∣ted; but I mean it in respect of reverence and pious regards, and natural duty,* 1.74 and humble observation. For Nomen Patris grande Mysterium est, & nomen Matris arcana Reverentia, said Origen; there is Reverence, and there is mystery, and all sacrednesse in the Names of Father and Mother; and that dignity lasts for ever. The Ancients tell that when Danaus, who had given liberty to his fifty daughters to marry according to their own liking, was compelled to give them to the fifty Grandchildren of Aegisthus, he gave to each of them a sword, and commanded them to kill their hus∣bands the first night before their congresse: and they thought themselves, though married, oblig'd to obey their Father, and all did so but Hypermne∣stra, who for her disobedience was question'd upon her life, and was by the equally-divided sentences of the Judges acquitted. The like story to this is told by Chalcondylas, that a daughter of a Florentine Physician being by the public request and necessity of the Town given to Lantislaus an amo∣rous Prince, who to get her besieged the Town, her Father gave her a poy∣son'd

handkerchief which he commanded her to use upon the Prince; and she did so, and upon her self, and both died. These indeed were excesses of power and obedience: but I noted them to shew that the sense of the world is to suppose children oblig'd to their parents even when they are in the power of a husband, or in necessitude and conjunction with a wife. And this is extended also to daughters that are Widows, if they be in mino∣rity, that is under 25 years; for so it was in the Roman law; or, if under any other number of years which the law calls minority in any Government. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, If she will marry again,* 1.75 let her marry by the consent of her Father.

2. If a Son be a Magistrate,* 1.76 the Magistrate is exempted, but not the Son. That is, in those things which concern his office and dignity the Father hath nothing to doe with him: but in things Oeconomical the Fathers power stands, and his person is capable of the same regards as formerly; of all the same, Salvo honore Magistratus. But yet the reverence of such a Son to a Father ought to be no otherwise exacted then by the measures of prudence and custome, and the common usages of the place. When Fa∣bius Maximus came to his Son who was then Consul, and sate upon his horse, otherwise then he ought, his Son sent the Lictors to him to call him to descend and come to him:* 1.77 and the old Man gladly obeyed, and told him, Non ego Imperium tuum, mi Fili, contempsi, I did not despise thy authority, but I tried if you knew how to be a Consul: nec ignoro quid Patriae venera∣tioni debeatur; verum publica instituta privatâ pietate potiora judico, I know what veneration is due to a Father; but the private regard must give place to the public laws. And yet even in things of public nature, if a Father be wise, his Counsel ought to have some force besides the reason. When the Tri∣bunes of the people, who sometime had Consular dignity, contended which of them should goe to the Warre against the Lavicani (for they all would fain have gone, but none would stay at home to take care of the city) Quintus Servilius commanded his Son to stay, and doe his duty at home; and he did so, for it was for the public interest that one should, and the power of his Father determin'd him when they all refus'd at first.

3. If a Son enters into holy Orders,* 1.78 it does not quit him from his duty and obedience to his Father, unlesse the law declare it so; that is, in such things wherein the Fathers political power did consist. And we find in that collection of Canons which is called Apostolical,* 1.79 it is decreed that if a servant take on him holy Orders against the will of his lord, there was a redhibition allowed; he was to return to his service, till he was freed by his lord. The case is the same in Princes and in Fathers.

There are four little Queres more for the finishing this Rule; the answers to which will be short, because they depend upon the former discourses.

1. Whether if the Grandfather be alive,* 1.80 and the Son be in his power, it be sufficient to legitimate the marriage of the Nephew if the Grandfather consent, though the Father be not ask'd.

To this the Lawyers answer with a distinction:* 1.81 If the Nephew mar∣ry a wife,* 1.82 the consent of the Son must be ask'd; but if the Niece mar∣ry,

the consent of the Grandfather is sufficient: and so it is if the Nephew marry in the same family, that is, the Niece by another son. The reason of the last is, because the Fathers are suppos'd willing to doe advantage to their own family, and therefore it may be sufficient that he who is in actual pos∣session of the Government should explicitly consent, and the other impli∣citely. But why to the marriage of the Niece the Grandfathers consent should be enough, but to the Nephew's marriage the Fathers consent also be requir'd, the reason that is pretended is onely this, Because no man ought to have his heir provided for him against his will, of which there is no danger in the marriage of a daughter. But in short, though this was thus in the Civil law of the Romans, and was no more reasonable then we see; yet now that it is a case of Conscience I am to answer otherwise. For it is against Natural and Divine reason and laws that the Father should in either of the cases be neglected, who ought rather to be preferred, as he that is most and longest like to be concerned in the good and evil of the mar∣riage.

2. Whether if the parents have consented and authoris'd the treaty of marriage till the affections of the children are irrevocably ingag'd,* 1.83 and afterwards retract that consent, the children are bound to obey their pa∣rents, and quit their loves.

This I find in an elegant case related by Gentian Hervet in his oration to the Council.* 1.84 Damoiselle Vitrou was espoused to a Cavalier by her pa∣rents;* 1.85 but when he would have married her and carried her home to his friends, her parents, I know not upon what account, chang'd their minds and refus'd to let her goe. But the Souldier carries her away by force and marries her and lies with her, but us'd her ill; of which she being quick∣ly weary, flies into a Monastery; and that she might not be drawn thence and forc'd to return under her bondage, she pretends that he was not her husband by law, because he forc'd her from her Fathers house against the will of her parents. To this it was answered in behalf of the husband, that she who was espoused legally, might be carried away by the spouse lawfully,* 1.86 according to that of Gregory, and Eusebius, Si quis virginem aut viduam furatus fuerit, nisi fuerit à se desponsata, anathema sit. If she was not espoused, it is Plagium & raptus, a rape and stealth; but if she was, it was no fraud to him.* 1.87 Now if this was no ravishment, as it is plain, be∣cause she was espoused, and she was willing, though her parents were not, then she was his wife, saies the Law; and if so, then the revocation or dis∣sent of the Father hindred not but that she might proceed thither where she was ingag'd. Now this case went farre indeed: But if it be not gone so farre, yet if it be gone thither from whence they cannot honestly or de∣cently recede, the Fathers dissent ought not to be a prejudice to the con∣summation: for it began from an honest and a competent cause, it was a fire kindled from the Sun, and it proceeds to that which is honest in it self; and therefore there is no evil done. But if the parties are unengag'd, or be in∣different, or can well retire, the first liberty did not let them loose from du∣ty, but that they are to abide therewhere they were, unlesse (I say) by that first leave they are pass'd beyond a fair return. For the affections and the great content of children is not to be plaid with, as with a tennis-ball; and it is in this as in his children, if he have begotten the affection unto life, he must maintain it at his own charge.

3.* 1.88 Whether Mothers have the same authority over their children as the Fathers have.

To this I answer, that in the Civil law sons were not in their Mothers power, but in their Fathers:* 1.89 Appellare de nuptiis debui Patrem; and Eustathius upon Homer, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. He that gives the dowry, it is fit that by his will the marriage be contracted. This is well enough, that the Father should doe it: but it becomes the piety of children to endeavour that their Mother be pleased; for to her also there is the same natural relation, obligation and minority, and in all things they are equal, abating the privilege of the sex; and there∣fore though the same duty is owing to them both, yet their authority is se∣verally express'd,* 1.90 which to my sense is well intimated by Eustathius: 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Not the pow∣er of my Father, nor the persuasion of my Mother, should make me marry even Venus her self. Where the Mother is allowed onely the power of per∣suasion. But that also implies all her power, onely that is the most pro∣per way for her exercise of it.* 1.91 And it is the most forcible. Jussum erat, quodque est potentissimum Imperandi genus, rogabat, qui jubere poterat, said Ausonius. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, said Julian the Emperor.* 1.92 For they that can if they please compel, ought most of all to prevail when they counsel and intreat. But however things were in the law of the Romans, yet by the laws of nature Mothers, who have so great an affection to their children, and so great an interest in the good and evil respectively of their Son in law's or their Daughters manners, must with duty & tendernesse be regarded like the Fa∣thers. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, said S.* 1.93 Cyril of Alexandria: Consonantly to the law of Nature he commanded his son to abstain from such marriages as were displeasing to his Mother. Isaac did so to Jacob. And to this purpose Catullus elegantly presses this obligation.

At tu ne pugna cum tali conjuge, virgo. Non aequum est pugnare, Pater cui tradidit ipse, Ipse Pater cum Matre, quibus parêre necesse est. Virginitas non tota tua est: ex parte parentum est. Tertia pars Matri data, pars data tertia Patri, Tertia sola tua est.—

Her Father and her Mother and her self had in her self equal share.

But if the Father be dead,* 1.94 then the question is greater, because if the Mother have any power, she hath it alone: when her Husband liv'd she had power as the Moon hath light by the aspect of the Sun; but now that her light is extinguish'd, hath she any natural and proper power of her own? To this S. Austin answers clearly,* 1.95 Fortassis enim quae nunc non apparet, apparebit & Mater, cujus voluntatem in tradenda filia omnibus ut arbitror Natura praeponit: nisi eadem puella in ea jam aetate fuerit, ut jure licentiore sibi eligat ipsa quod velit. From which words of S. Austin it is plain, that in the disposing of her daughter in marriage by the voice of Nature the Mother hath a power; and this is rather, and more, and longer then in the disposal of her son. The reason of both is the same, because by the advan∣tage of the sex and breeding, the son will be fit to govern in the family; and at the same time the daughter hath the weaknesses of feminine spirit

upon her as much as the Mother, and more by reason of her tender age and want of experience. To which may be added, that if the Father be dead, the estate is descended upon the Son, and then he is put by law under the power of Tutors and Guardians, and then is to marry, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, saies the law, by the consent of his Kindred and Guardians; that is, if he be not come to maturity: but if he be, the rule is,* 1.96 Filius quidem pubes nullius expectat arbitrium, filia verò Matris & pro∣pinquorum, A son that is of a marriageable age if his Father be dead is wholly in his own power, but a daughter is under the power of her Mo∣ther. And yet this also lasts no longer but to a certain age, which is deter∣min'd by the laws of every Nation respectively. And yet both the Son and the Daughter are to shew piety to their Mother, and not to grieve her. Pulchre Deo obtemperat qui tristis est Parenti, for he does ill serve God, that brings sorrow to his parent. And therefore the Ancient laws of the Romans were ever favourable to that part of the marriage which the Mother chose. Postulatu audito Matris Tutorumque, Magistratus secundum parentis arbi∣trium dant jus Nuptiarum,* 1.97 saies Livy. But the Wisigoths by their law were more kind to the Mothers interst,* 1.98 for Patre mortuo utriusque sexus filiorum conjunctio in Matris potestate consistat; Both son and daughter if their Fa∣ther was dead were in the power of their Mother, and were to marry by her appointment and counsel.* 1.99 And therefore Simeon Metaphrastes commends Abraham for taking a wife at the command of his parents, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, as knowing it to be one of the Divine Commandements to obey his Father and his Mother. But these things were varied by laws and particular considerations. That which is of universal truth is this onely, That in their natural minority children are equally under the power of their Mother, as of their Father when he was alive; but when they can chuse, they are sooner quit from the Castigation or legal coerci∣tive powers of their Mother, then of their Father if he had liv'd. And this relies upon the practice and consent of all the world, and hath this reason, because women are not by laws suppos'd very fit to govern lasting interests. But lastly, they are never quit from their reverence and duty, piety and greatest and kindest regards: but the Mothers dissenting does not annul the marriage of her sons that are of age; and it is so far from that, that their not complying with their Mother in this affair is onely then a sin when it is done with unregarding circumstances, or hath not in it a great weight of reason. But every child should doe well to remember their obligation to their Mothers;* 1.100 and as S. Chrysostom said in his own case, when he had a mind to enter into a Monastery his Mother recalled him, or rather the voice of God crying, Fili colito Anthusam, Son remember thy Mother An∣thusa, and grieve her not as long as she lives.* 1.101 For Nomen Matris, arcana reverentia, There is a secret veneration due to the very Name of a Mo∣ther.

4. Although a Fathers authority is such that against it a Son may not marry;* 1.102 yet whether or no is the power of the parents such that they can compel a son or a daughter to marry whom or when they will?

To this I answer,* 1.103 that in the matters of marriage especially, and pro∣portionably to the probable event of things in other lasting states of life, that of Aristotle is very true, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, The Fathers authority hath in it no necessity, no constraint

Which Heliodorus Prusaeensis thus paraphrases, The commandements of Fa∣thers of their children 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, have not in them such force that they can compel their children. And therefore Pamphilus in the Comedy complains passionately, and yet reasonably,

Proh Deûm atque hominum fidem! quid est,* 1.104 si non haec contumelia'st? Uxorem decrêrat sese dare mihi hodie: nonne oportuit Praescisse me ante? nonne priùs communicatum oportuit?

Upon which place Donatus said well, quia nuptiarum non omnis potestas in Patre est, All the intire power of marriages is not in the Fathers. It may not be done against their wills, but neither is their will alone sufficient. The Fathers have a negative, but the children must also like. Constat enim circa nuptias esse filiis liberam voluntatem: ideo servatâ ratione pietatis com∣municatum oportuit, said Eugraphius. For it is certain they have the power of choice, and therefore in piety the Father ought to have acquainted the Son with it. And the same also is the case of the daughter, she is not to be forc'd to marry against her inclination and affections. Eustathius upon that of Homer,* 1.105 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, it was spoken according to the exactest political measures, that the Father should chuse an husband for his daughter ••enelope, and yet that his daughter should like the yong Prince Ulysses; 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. For there is diffe∣rence between a servant and a child; the Father may chuse for his daugh∣ter, so that at the same time she may chuse for her self: and therefore (saies he) when Homer said 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, he saies it in respect of the Father, that he may give her to whom he please; but when he saies 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, he saies it in respect of the Daughter, that the man whom the Father chuses must be gracious in her eyes: 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, said Priscus,* 1.106 It is impious to marry a daughter against her will.

But this is to be understood with some restraint.* 1.107 For if a Father may chuse, and the daughter may chuse too, how if it happens that they fancy several persons? shall the Fathers authority, or the daughters liking pre∣vail? both cannot prevail at once: but the question is, which shall, and when, and how long, or in what cases. To this I answer that if the matter be indifferent, or the person be fit, the Father ought to prevail. Patris quippe jussa non potuisse filium detrectare,* 1.108 A son may not refuse his Fathers commandement. For the Fathers authority is certainly a very great thing; 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉,* 1.109 A Father is by Nature to his child both a Lord and a Prince: and therefore Theophilus calls the Paternal power 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉,* 1.110 which is the title of the Royal Majesty: and though the old name for disobedience in the Scripture is Witchcraft, yet Ennodius would fain have found a new name for this kind of it. Non in∣venio quâ novum facinoris genus explicem novitate sermonum, quibus fuit Sacrilegium non parere. It is Sacrilege at least not to obey our parents. Now although this be spoken generally and indefinitely, yet it must have it's effect in such commandements which have no great reason against them: and therefore if a Father offers a wife to a son, or a husband to a daughter, such as a wise or a good man may offer without folly and injury, the child is not to dispute at all, but to obey, if the Father urges and insists upon the precept.

But there are some cases in which the Father ought not to urge the children.* 1.111 1. If the children be not capable or able for marriage, if it be destructive of their health, or against his nature; and this excuse was allowed amongst the Romans even where the Paternal power was at the highest.* 1.112 Solent qui coguntur à Patribus ut Uxores ducant, illa dicere, Non sumus etiam nunc apti nuptiis. It is not fit to require them to marry that hate, or are unable to doe the offices of that state. 2. If the Father offer to his child a dishonest or filthy person, un∣equal, or unfit; that is, when it is notoriously or scandalously so: when the person is intolerably and irreconcileably displeasing, then the command is tyranny. The Son is bound to obey his Father commanding him to marry; Sed enim si imperet uxorem ducere infamem, propudiosam, crimino∣sam, non scilicet parendum,* 1.113 said A. Gellius; But not if he offers to his child an infamous, a dishonest person. And so the law provides in behalf of the daughter, that she ought not to be compelled to marry an infamous man; l. sed quae Patris, ff. de Sponsal. and so Harmenopulus renders it, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉* 1.114 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, She that is under her Fathers power can then onely refuse her Fathers command, when he chuses for her a man that is unworthy in his manners, and a filthy person: and indeed in this case she hath leave to refuse the most Imperious command of an angry Father. Son and daugh∣ter in this have equal right: 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉: so Lucian.* 1.115 Though his Father would have compell'd and forc'd him to marry a wife, yet he refus'd it: and he might lawfully, when he offer'd him a strumpet.

But there is another sort of persons which are called Turpes filthy or hatefull;* 1.116 and that is, such as are deformed and intolerably ugly. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, saith Lucian,* 1.117 We call them filthy that are not fair or comely. But in this sense, if the Father offers a husband to his daughter, she hath not liberty to dissent, but onely to petition for liberty: for beauty is not the praise of a man, and he may be a worthy person, though of an ill shape, and his wit and manners may be better then his countenance. And there is no exception in this, but that if the daughter hath us'd all means she can to endure him, and cannot obtain it, she can onely then refuse when she can be sure that with him she can never doe her duty; of which because she cannot be sure beforehand, because his worthi∣nesse may overcome the aire and follies of her fancy, therefore the unhand∣somenesse of a man is not alone a sufficient cause for a daughter to refuse her Fathers earnest commands. But yet in this case though a Father have authority, yet a good Father will never use it, when it is very much against his Daughter, unlesse it be also very much more for her good. But a Son hath in this some more liberty, because he is to be the head of a family, and he is more easily tempted, and can sooner be drawn aside to wander, and beauty or comelinesse is the proper praise of a woman; comelinesse and good humor, forma uxoria, and a meek and quiet spirit are her best dressings, and all that she can be good for in her self; and therefore the uglinesse of a woman will sooner passe into an incapacity of person, then it can doe in a man. But in these cases, as children should not be too forward to dispute the limits of their Fathers power, lest they mistake their own leave or their Fathers authority; so Fathers also should remember what the

Lawyers say,* 1.118 Patria potestas in pietate debet, non in atrocitate consistere, The Fathers power consists not in the surliest part of Empire, but in the sun∣shine side, in the gentlest and warmest part. Quis enim non magis filiorum salutem quam suam curat? saith Tertullian. He is an ill Father that will not take more care for the good of his child, then his own humor.

The like is to be said in case the Father offers to his child a person of a condition much inferior.* 1.119 For though this difference is introduc'd prin∣cipally by pride and vanity in all the last ages of the world, and Nobility is not the reward of vertue, but the adornment of fortune, or the effect of Princes humors, unlesse it be in some rare cases; yet now that it is in the humors and manners of men, it is to be regarded, and a Diamond is really of so much value as men will give for it: and therefore a son or daughter may justly refuse to marry a person whose conjunction will be very disho∣nourable and shamefull: but at little differences children must not start. If the Nobility marries into the family of a Merchant, the difference is not so great, but that portion makes up the want of great extraction. For a hus∣band or a wife may be 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Noble by their wealth; so the Greek proverb means: and old Ennius translating of Euripides his Hecuba, makes wealth to be Nobility,

Haec ita etsi perversè dicas,* 1.120 facile Achivos flexeris. Nam cum opulenti loquuntur pariter atque ignobiles, Eadem dicta, eademque oratio aequa, non aequa valet.

When the rich and the ignoble speak the same things, the rich man shall prevail when the ignoble shall not.

—〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.* 1.121

Wealth makes nobility. And therefore in such cases, if the sons or daughters refuse the command of their Father, it is to be accounted rebellion and dis∣obedience. But this whole inquiry is well summ'd up in those excellent words of Heliodorus, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. If the Fathers will use the utmost power of law, it is enough for them to say, It is their will. And it is to no purpose to ask, where they have power to compel. But when there is a marriage to be contracted, it is fit that they both consent.

There are some inquiries relating to the title of this Chapter, which would be seasonable enough here to be considered, concerning the powers of Husbands over their Wives: But because the Matrimonial questions and cases of Conscience are very Material and very Numerous, and of all things have been most injur'd by evil and imperfect principles and worse conduct; I though it better to leave this to fall into the heap of Matri∣monial cases, which I design in a book by it self, if God shall give me opportunity, and fit me with circumstances accordingly.

Notes

• * 1.1

  1.
• * 1.2

  2.
• * 1.3

  3.
• * 1.4

  2. 2••. qu. 88. art. 9.
• * 1.5

  Bellar. l. 2. de Monachis, c. 36.
• * 1.6

  4.
• * 1.7

  5.
• * 1.8

  advers. Marcion.
• * 1.9

  Can. 16.
• * 1.10

  6.
• a 1.11

  lib. 1. de Vir∣gin.
• b 1.12

  Epist. 109. 110.
• * 1.13

  •• Aug. Epist. ••d Bonifac. Comit.
• * 1.14

  in quaest. fuse explic. q. 15.
• * 1.15

  libr. de Provi∣dentia.
• * 1.16

  lib. 5. cap. 95.
• * 1.17

  tit. de iis qui pueros vel puel∣las occiderint, vel totonderint.
• * 1.18

  7.
• * 1.19

  Terent.
• * 1.20

  8.
• * 1.21

  lib. 6. de Asino a••reo.
• * 1.22

  ad Uxotem.
• * 1.23

  Ibid. l. 2. in fi.
• * 1.24

  ff. de statu ho∣minum.
• * 1.25

  Genes. 24.
• * 1.26

  Judges 14. 2, 4.
• * 1.27

  Exod. 34. 16. Deuter. 7. 3.
• * 1.28

  1 Cor. 7.
• * 1.29

  Andromach. Eurip.
• * 1.30

  lib. de Patriarch.
• * 1.31

  9.
• * 1.32

  Xenoph. lib. 8. in Stich.
• * 1.33

  Andria, Act. 5. Scen. 3.
• * 1.34

  in respons. Ma∣trimon. Matth. Monachi.
• * 1.35

  10.
• * 1.36

  & habetur 30 q. 5.
• * 1.37

  Can. 38. in Can. Patrum. in Graecor. Nomocan.
• * 1.38

  et habetur 32. q. 2.
• * 1.39

  in tit. de foe∣min. non con∣secrat. cap. 33, 36. q. 2. pla∣cuit.
• * 1.40

  11.
• * 1.41

  Ibid. Vide etiam Concil. Paris. 36. q. 2. 27. q. 2. nullus.
• * 1.42

  12.
• * 1.43

  13.
• * 1.44

  Declam. 257, & 376.
• * 1.45

  lib. 3. in La∣conic.
• * 1.46

  in Erato, l. 6.
• * 1.47

  14.
• * 1.48

  c. tuae. de Spons. extr.
• * 1.49

  vide Ascanium Clement. A∣merin. de pa∣tria potest. cap. 6. effect. 6.
• * 1.50

  l. Divi fratres. ff. de jure pa∣tron.
• * 1.51

  l. Filius 25. ff. de ritu Nupti∣arum. l. 3. §. Eman∣cipatus. ff. de cont. tab.
• * 1.52

  Phalar. Epist. 143. cap. 9.
• * 1.53

  Cap. 9.
• * 1.54

  Ulpian. l. 3. §. si emancipa∣tus. ff. de bonor. possess. contr. tabulas. Hoc observant Giae∣ci ad l. 10. de sponsal. l. 28. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. tit. 1.
• * 1.55

  in Can. Pasil. 38. in Can. PP.
• * 1.56

  C. 1. extra. de conjug. servor.
• * 1.57

  Gen. 26. 35.
• * 1.58

  15.
• * 1.59

  16.
• * 1.60

  C. cum causam. de rapt. extra.
• * 1.61

  Deuter. 22.
• * 1.62

  lib. Sentent. 2. tit. 19. Idem dixitvetus Scho∣liastes ad Pau∣lum.
• * 1.63

  Exod. 22. 16, 17.
• * 1.64

  O sententiam necessitate con∣fusam•• parcit & s••vit, dissimu∣lat & animad∣ver••it. Tertull. 18, 9, 10, 11.
• * 1.65

  Exod. 22.
• * 1.66

  17.
• * 1.67

  Quintilian. de∣clam. 376.
• * 1.68

  18.
• * 1.69

  ••jus autem po∣testatis. Inst. de potest. Patr. & l. nam in civium. & l. item in potesta∣te. ff. de his qui sant sui & ali∣eni juris.
• * 1.70

  19.
• * 1.71

  20.
• * 1.72

  in Encomio.
• * 1.73

  21.
• * 1.74

  Homil. 11. in Levit.
• * 1.75

  In Basi••ico.
• * 1.76

  22.
• * 1.77

  Vale. Max. l. 2. c. 2.
• * 1.78

  23.
• * 1.79

  Cap. 81.
• * 1.80

  24.
• * 1.81

  25.
• * 1.82

  l. oratione 16. §. 1. ff. de rit•• nuptiar. l. 3. D. eod.
• * 1.83

  26.
• * 1.84

  27.
• * 1.85

  de clandest. Ma∣trim. impress. Paris. 1556.
• * 1.86

  in Burchard. & in decretis.
• * 1.87

  Idem dixit Lu∣cius 3. in C. cum causam de rapt. extra.
• * 1.88

  28.
• * 1.89

  Seneca controv. l. 3. c. 5. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
• * 1.90

  Ismeniae & Is∣men. 5.
• * 1.91

  Epist. ad Pau∣lum.
• * 1.92

  Orat. 2.
• * 1.93

  in Genes. l. 4.
• * 1.94

  29.
• * 1.95

  Epist. 233.
• * 1.96

  l. filia. 20. C. de inoffic. te∣stam. & 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. lib. 28. c. 4. Constanti••n. Harm••nopul. Epitom. l. 4. tit. 7. §. 12.
• * 1.97

  Liv. lib. 4.
• * 1.98

  lib. 3. tit. 1. §. 7.
• * 1.99

  in Abramio.
• * 1.100

  lib. 1. de Sa∣cerdot.
• * 1.101

  Origen. ubi supra.
• * 1.102

  30.
• * 1.103

  31.
• * 1.104

  Andria, Act. 1. Scen. 5.
• * 1.105

  ad 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉
• * 1.106

  in Eclogis le∣gationum.
• * 1.107

  32.
• * 1.108

  Tacit. Annal. 3.
• * 1.109

  Manuel Palae∣olog. orat. 7.
• * 1.110

  a ••. §. 1. de his qui sui vel ali∣en. jur. Dec••am. 10.
• * 1.111

  33.
• * 1.112

  Senec. controv. 1. 6.
• * 1.113

  lib. 2. c. 7.
• * 1.114

  Matthaus Monachus legit 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, ut filiū etiam compre•• 〈…〉〈…〉 malè, quia eo loci JC. 〈…〉〈…〉 qui∣tur de filio & filia, & de filio con∣troversia non erat. Harm••nopalo a. conscntiunt 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 lib. 28. tit. 1.
• * 1.115

  in dial. Meretr.
• * 1.116

  34.
• * 1.117

  in Charidemo.
• * 1.118

  l. D. Adrianus. ff. ad legem Pompeian. de partic. Advers. Mar∣cion.
• * 1.119

  35.
• * 1.120

  apud A. Gell. lib. 11. c. 4.
• * 1.121

  Eurip. in Ar∣chelao.