Digamias adikia, or, The first marriage of Katherine Fitzgerald (now Lady Decies) contracted in facie ecclesiæ with John Power, now Lord of Decies / asserted by Dudley Loftus ...

JOHN Lord DECIES of the Age of eight Years, was married by the Arch-Bishop of Canterbury to Katherine Fitz-Gerald, (with the consent of her then Guardian) ha∣ving compleated twelve years and a half of her Age; She about one and twenty months after the said Marriage, disagreed to the same, and on Easter-Eve last took to her pretended Husband Edward Vil∣liers, Esq the said Lord Decies be∣ing yet alive, notwithstanding the Inhibitions of the Court of Arches.

QUAERE.

Whether she could avoid the first Marriage with the said Lord Decies, or make Reclamation thereof?

ANSWER.

I Conceive the Law to be so clear in the Case above stated, that there cannot arise any considerable difficulty among the Learned in resolving the Quaere therupon propounded; Yet that the Resolution thereof may be the clearer, and the more satisfactory to the under∣standing of all those who are or may be concerned in the same, I shall bring it under the determination of a more general Question, stated with such Distincti∣ons, Limitations, and Specifications, as will not only explicitly resolve the same, but also answer and pre∣vent such Objections as may arise out of some con∣fused Notions and Allegations that may be produced against the Negative Resolution of the said Quaere.

The Question therefore is thus generally pro∣pounded, Whether and when those who contract Marriage, may depart therefrom by Reclamation?

Whereunto I answer; That either such Contract hath already passed into a Marriage, or in vim Ma∣trimonii de praesenti; either by present Consent, or by Carnal Knowledge subsequent: in which case there is no departure therefrom by way of Reclama∣tion.

Or such Contract hath not as yet passed in vim Matrimonii de praesenti, and then first both Parties are

at age of Consent, to wit, the Man hath attained the age of fourteen years; or, secondly, both of them are under those respective ages; or, thirdly, the one of them hath attained that age and not the other.

In the first Case of this tripartite Subdistinction, where both Parties are at age of Consent, the one Party cannot lawfully depart from the Contract without the consent of both.

In the second Case of the said Distinction, to wit, both being under Age at the time of the Contract; it is to be understood whether both, or one only of them will reclaim before either of them attain to the com∣petent age of Marriage: And I conceive they can∣not, whether they be equally distant from the said competent Age; (as for example, He is Twelve years old, and she Ten; or unequally distant, he be∣ing Thirteen and she Ten:) or whether both, or either of them will reclaim after the arrival of both at competent Age as aforesaid; And at this time ar∣riving together at competent Age they may reclaim, as when at the time of the Contract of Marriage they were both equally distant from the Age competent at a different time, when one arrived at the Age be∣fore the other, having been unequally distant from a competent Age of plenary Consent at the time of the Contract: or both, or either of them reclaims some time after the Accomplishment of years competent for Marriage, and then they cannot, whether both

of them arrive thereunto at the same time, or at di∣vers times; as when the Man was Thirteen years of age, and the Woman Ten, the Man being by the revolution of a Year arrived at that competent Age aforesaid, who then may reclaim, or thank himself for the loss of that benefit; So that when they are of different ages from the time of plenary Consent, it is in the pleasure of the Party who first comes to Age, to dissolve the Contract by Reclamation, which if he shall not then do, this Power is devolv'd to that Party who shall be then under Age.

As to the third Case of the Distinction, where one of them hath attained the age of plenary Consent at the time of the Contract, and not the other; the Par∣ty that hath so attained that age at the time of the Contract may not reclaim; but the Party who was then under that age, and now hath attained it, may make Reclamation. So when one of Age contracts with one under Age, the Contract is immediately good as to both, and each of them bound to expect until the younger comes of Age, who if he then make Reclamation, the Contract of Marriage is dissolved; but if he shall not reclaim, they shall be compelled by the Church to prosecute the Contract.

I having thus set down the first Principles which relate to the Controversie, and are of greatest im∣portance to the determination thereof, I shall now

apply my self more particularly to the very Case, and in the first place alledge out of the Decretals de Dispon. Impub. Cap. de illis §. Mulier autem, where it is said, Mulier autem quae postquam annos Nubiles attingit, ei qui nondum ad annos aptos Matrimonio venerat, nupsit, cum in eum semel consenserit, amplius non poterit dissentire, nisi ipse cui nupsit, in eam suum negaverit praestare consen∣sum. And though the Gloss may seem to derogate from the Text, seeming like the Gloss of Orleans, which, as hath been said, corrupts the Text; yet I conceive that the Gloss upon the words, semel consen∣serit, having set forth quod multi contractus claudicant, & ex una parte possunt tenere, & ex altera non; and ad∣ding afterwards a diversity by the word, Secus there subjoyned, where he saith, Secus in Matrimonio, quia illud vinculum non potest constare nisi ex duobus consensibus, doth not prejudice the Lord of Decies his Case: for he was at the time of the Marriage capable of giving a Consent, being then of above Seven years of age, which he cannot recal until he come to the age of Fourteen, and will continue; unless he then, or im∣mediately after disclaim the same; whence Dominus Abbas saith, Si alter pubes, & alter impubes, & impubes reclamat, non auditur ante aetatem Legitimam, si autem pubes reclamat, non auditur, ex quo semel consensit, & sic diffi∣niunt hi §. quicquid dicat Glossa, either derogating from the Authority of the Gloss, or putting such reason∣able Sense thereon, as may reconcile it to the Text,

by his diffiniunt, quicquid dicat Glossa, which is as much as to say, This Gloss doth not hinder, but that Judg∣ment may be given, notwithstanding the same, to re∣ject the Reclamation of the party who was at age at the time of the Contract. And as for the words of the Reason given by the Gloss, quia illud vinculum non potest constare nisi ex duobus consensibus, I conceive that the word Constare bears the sense of the word Consi∣stere, as it doth in Pandects, L. 68. & L. 98. in fi. de Solut. So that the sense of the whole clause is, That such Marriage cannot consist or continue, without the consent of the Minor be continued when he comes of age.

And as to the Authority of the Gloss, it hath al∣ways been held in great veneration, in so much that it hath been called Juris Idolum. Sallicetus said, that we ought, adhaerere Authoritati Glossae, sicut Bononienses Caro∣tio, & sicut ducens navem inhaeret temoni; Nay further, Anthonius Cursetus saith, de Authoritate Glossae, illam om∣nibus Doctoribus antecellere; yet in limitation of his words, and explication of what honour hath been at∣tributed to the Gloss by the former Quotations, he subjoyneth these words, Scilicet Glossae Authoritatem an∣tecellere, hoc est, singulis partitivè, non simul sumptis.

Moreover, I confess that in the decisiones Parliamenti Delphin. quaest. 39. set forth by Guido Papae, termed Excellentissimus Juris utrius{que} Monarcha, it is said, Opinio Glossae magnae est Authoritatis; but it is, as there set forth,

Ubi corroborata est communi Doctorum Opinione; for the Gloss never prevails against the common Opinion, or the express Determination of the Text, though in causae arbitralis definitione, the Opinion of the Gloss is allowed, as it was in a Judgment in a Court of Par∣liament of the Dolphinat 1453, and in the year 1456, in a Cause there depending between Claudius Constanus and one Boccagius: whence it is, that Johan∣nes Calvinus the Civilian, alias Kahel Wateranus ad voca∣bulum; Glossa, saith, quotidie, & in Scholis, & in Judiciis, Glossas impugnari refelliquè videmus, nisi enim vel jure, vel rationibus funditùs nitatur, & à textu non dissideat, minimè sequenda; nam ubi Textus expressi sunt, ibi nulla est dubi∣tatio, nec ad Glossam respiciendum: But that the Cap. de illis, is express, plain, and clear, being written from Alexander the third to the Bishop of Bath, will be here∣after proved by the Testimony of Marchantius in his Answer to a Question upon the very like Case with Ours. In the mean time let it be observed, that the Cap. de illis, being written by the said Alexander, and directed to the Bishop of Bath, must needs be taken to be Law in England. Baldus delivers the same Do∣ctrine in L. Ancillae, C. de Furt. Nam Doctrina Glossae nullam nobis necessitatem imponit, cum sit tantum probabilis ut dic. Bartholus. L. 1. ff. si certe pet. The said Kahel adds further, Quod autem vulgo jactatur, quod in Judican∣do à Glossa recedi non debeat, id non esse verum post Abbatem Zasius inculcat, caeterum ubi textibus destituimur, tùm Glos∣sae

authoritas minimè contemnenda est, qua de re latè disserit Nevizanus in Sylva Nuptiali. And in this sense Jacobus Butrigarius and Baldus are to be understood, when they seem to magnify the Gloss.

And it is also to be considered, that the Gloss is many times mistaken as to the understanding of the Law; as for example, L. 1. in prin. Fi. uti possidetis, saying, that utile interdictum was therefore granted un∣to a usu fructuarii, because there is only considered a quasi possessioni: for the best Lawyers say, that as a Propriety is separated from a Possession, which in∣deed is a part of Dominion, and therefore it was im∣properly said by the Glossary, That a usu fructuarii did quasi possidere, viz. L. permisceri, de acq. poss. & Barth. in L. naturaliter in prin. Feod. & ibi; Jas. Num. 18. Whereby it appears the remedy of that Interdict is not granted to a usu fructuarii in respect of a quasi possession, but inspectâ vera possessione, wherein the usus fruite is, if there happen to be any disturbance.

Again, Jacobus Menochius under the title De Reti∣nenda Possessione, saith, that Accursius, as famous a Glos∣sary as Johannes Andreas, is guilty of a very great er∣rour in his Interpretation of L. 1. ff. Utrubi, and of the Rubrick of the Code, uti poss. and that his Gloss is to be exploded, and himself to be derided, foras∣much as he declares this to be the difference between the Inscriptions, Uti possidetis, & utrubi, scilicet, that Utrubi should refer to an improper possession of Mo∣vables,

and uti possidetis to a proper Possession; for besides this, that it is the common Opinion, that the Possession of Movables is a proper Possession; it may manifestly be proved from the said first Law of the ff. Utrubi, and the Paragraph Retinend. inst. de interdi∣ctis, whilst Ulpian and Justinian call it Possessionem Mo∣bilium: which Appellation in ambiguis ad sermonis pro∣prietatem referri debet. Besides, a usus fruct. being pars dominii, it cannot be properly said usum fructum possi∣deri. Wherefore Menochius de Retinend. poss. remed. 3. n. 245. declareth, Nec hic ego probo sensum Glossae. And the Gloss in many instances is rejected by Baldus, Bar∣tholus, Salicetus, &c. as you may see further in Meno∣chius de Retinend. poss. remed. 3. n. 37. and in Mascar∣dus sub tit. Glossae. From whence it is that Abaspelqueda tit. de Poenitentia dist. 6. n. 107. saith, that the Gloss is false, for two Reasons; first, for declaring that to be Law, quod nullo Jure cavetur: whence I may forcibly infer with more Reason, his Temerity in declaring himself in this point contradictory to what Jure ca∣vetur, if he be to be understood, if the Gloss were to be understood of persons of above seven years of age. Secondly, for concluding against Custom; for Consuetudo est optima Legum interpres: Cap. cumdilect. de Consuetud. L. minime. ff. de Leg. For if the Gloss on the aforesaid Cap. de illis, is to be understood against the Text, and the common Opinion, it is also against Custom: for Martinus Abaspilqueda de poenitentia dist. 6.

n. 107. declares, Non est Textus illius sensus quem Glossa judicat, nec obstat Glossa quia Textu decepta; so that it is not the Authority of the Gloss that can decry, or bring into credit any Tenet against the Text, or the opinion of the Doctors. This therefore being the common Opinion in this Case debated, appears by the Rosella Casuum fo. 404. n. 6. for these are the very words of the Rosella; Nota secundum communem Doctorum Opi∣nionem in dict. Cap. de illis de dispons. impub. quod Contractis Sponsalibus inter unum puberem & aliam impuberem, im∣pubes cum per venerit ad pubertatem, potest contradicere, pu∣bes autem qui consensit, non potest ullo modo contradicere; for which Reason the Propinquity arising ex Matrimo∣nio hujusmodi rato, non consummato, is not restrained by the Council of Trent to the first degree, as is the Ju∣stitia Publicae honestatis, but remains an impediment us{que} ad quartum gradum equally, as doth the Affinity of Marriage consummate according to the definition of Pius Quintus in the Extravagant ad Romanum; Contra∣hitur enim affinitas per Matrimonium per verba de praesenti ante copulam ratione societatis Conjugalis, as saith Cosmus Pistoriensis, cap. 12 de Impedimentis Consanguinitatis. And if it shall be objected, that the propinquity arising ex Matrimonio rato, seems rather to belong ad justitiam publicae honestatis, for that it is not contracted per copu∣lam. I answer, that a far greater Bond is contracted, and of a far different kind from that of Sponsalia; for in Matrimonio rato, such as this is, traditur facultas cor∣porum

ad eandem copulam per quam Conjuges dicuntur una caro: for if Affinity be contracted by a Marriage per verba de praesenti ante copulam, as hath been said before; it followeth that they are made una caro ratione socie∣tatis conjugalis ante copulam; for it is neither the copula, nor the present hability ad copulam, that is always re∣quisit for the continuance of Marriage; nor doth the want of such Copula, or of hability thereunto, set the other party at liberty. For the Exception of Im∣potency, which is an impediment to Marriage, re∣quires three years experiment after Marriage before a Divorce can be sued à vinculo Matrimonii; for Nup∣tias non Concubitus, sed Consensus facit. And it is certain that a temporal Impotency is no diremption of Ma∣trimony; nor doth a Disease qui reddit hominem inha∣bilem multos annos ad copulam, dirimere Matrimonium. Vid. Henric. L. 12. Cap. 7. n. 1. Zanches. L. 7. d. 104. n. 10. And to conclude this Point, Cosmus Philiarchus de Ma∣trimonio, p. 302. In Matrimonio rato traditur facultas cor∣porum ad eandem copulam, per quam etiam Conjuges dicuntur fieri una caro. Which Doctrine is allowed by the Ca∣suists, who say, that Sponsalia ab uno impubere alter àque impubere Contracta, sunt partim rata, partim suspensa; Rata, quia durante ea minori aetate resilire non possunt: Non Rata autem & suspensa, quia, quamprimum impubes factus est pubes vel resilire, vel sponsalia ratificare debet, seu ex∣pressè seu tacitè, Pubes autem qui cum impubere contraxit contractui stare debet, si alter velit. And it is also the o∣pinion

of the Casuists, that the Law of those Coun∣tries which grant power unto a Minor adeptâ puber∣tate to make Reclamation, doth only free them à com∣pulsione fori externi, and not from the obligation in foro Conscientiae; for certainly, as Zanches says, it would be a ridiculous thing in Conscience to think, and al∣together dissonant to Reason to believe, that the Sponsalia of one under Age should be valid under Age, and yet not oblige at all at the accomplishment of years fit for consummation of Marriage; nay, the Casuists are so strict in that case, that even where the Sponsalia are but de futuro, they enjoyn Penance to the Party reclamant, de fide mentitâ. vid. Panor∣mitan ad Cap. si inter.

But as to Sponsalia per verba de praesenti, they are im∣properly so called, in respect of the Bond of Marri∣age, but in regard of the Execution of Matrimony: for Panormitan saith ibidem, Uterque spondet in futurum respectu executionis, sed respectu vinculi promittit de prae∣senti: for which Reason Divus Severus & Antoninus in their Rescripts have declared, Neque Matrimonium qualecunque nec spem Matrimonii violari permittitur, & Dispositio, (loquens de Matrimonio) verificatur in eo quod de praesenti contractu est, licet non sit copula secuta.

It is also worthy of observation, that the Canons which rule this Case are more favourable to Marri∣age than to the profession of Religion or Testaments, insomuch that at Seven years of age Matrimony may

be valid quoad Obligationem Matrimonii, though the Parties who make profession must be compleat Six∣teen years of age, and the persons who make a Te∣stament must be Fourteen: and the Reason is too clear in the Ladies Practice, Quia natura magis & citius inclinat ad Nuptias quam ad alios actus politicos vel pruden∣tes; and therefore the Law doth expresly make irrit the profession of Religion and Testaments made be∣fore the respective periods of Sixteen and Fourteen years, though in Marriage the anticipation of Seven years doth not invalidate Espousals, or Marriage, quando malitia supplet aetatem. And agreeable unto this Doctrine is the Case set down in Aurea Armilla sub vo∣cabulo, Sponsalia, N. 11. Two contracted Marriage being of unequal Age, the one being Eighteen years old, the other under the Age of Marriage, were with∣in the degrees of Consanguinity prohibited, it was therefore unlawful for them to consummate Marri∣age without a Dispensation: yet the elder of the two was forced to sue out a Dispensation, thereby to en∣able him to keep the faith of his Contract, and af∣terwards was compelled to consummate the Marri∣age; nay he was bound, saith Panormitan, facere quid possit ut Dispensationem haberet à Superiore.

I cannot forget to mention in Codice Legum Wyse∣gothorum, Lib. 3. tit. 4. de Adulteriis, 2. antiq. pa. 71. printed at Paris; Si inter Sponsum et Sponsae Parentes, aut cum ipsa forsitan muliere, quae in suo consistit arbitrio, sicut

consuetudo est, ante testes facto placito de future conjugio aut cum parentibus ejus quibus Lex potestatem tribuit, facta fuerit definitio & postea puella vel mulier Adulterium commi∣sisse detegatur, aut alteri fortassè viro se despondisse, vel in conjugio sociasse probatur unà cum Adultero sive injusto ma∣rito vel sponso illicito, quem sibi contra priorem definitionem sociare presumpsit, in potestate prioris tradantur Sponsi cum rebus suis omnibus servituri, idest, tam mulier ipsa scelerata quam vir ille, qui illam Adulter asse vel Sponsasse, vel in con∣jugio sibi sociasse dignoscitur; in potestate illius cui primum praedicta mulier pacta fuerat servituri tradantur, vel de his quod voluerit faciendi habeat potestatem. And to conclude this point of the Gloss, there is a Censure thereupon, wherein are expressed many hundreds of Errors, with an intimation of a more accurate and fuller Repurga∣tion thereof from many pernicious Errors: which Censure was published by Thomas Manricus, Master of the Apostolical Palace, anno 1575; after which (saith he) multa in Glossis intacta reliquimus non ideo quod ut vitiosa non sint: whereby it is to be understood how little Authenticity there is in the Gloss, especially where it is against a clear Text, as we have proved, Caput de illis, to be; or contra communem Opinionem Do∣ctorum, which impugn the Gloss in this behalf.

The next Objection considerable ariseth out of the Decisiones Rotae; which is indeed more in sound of words, than can be justified or upheld by the Au∣thorities alledged for support thereof: for Opinio Do∣ctorum

debet intelligi secandum jura quae allegant,* 1.1 the words of the Decision 450 are the contrary of what is above set forth in the said Paragraph, Mulier autem, and therefore emphatical enough against us in sound, though not in weight of Authority: For let us exa∣mine the Allegations on which they ground their O∣pinion, and we shall find that they make nothing against us, and do not in the least justifie the said Doctors, unless they restrain the generality of their words according to the distinction I have above ex∣pressed of the Minor being above or under Seven years of age: if they speak in this their Assertion of a Mi∣nor under Seven years, I shall not impugn their Opi∣nion, for it is out of the Case of the Lord of Decies, he being at the time of the Marriage above the age of Seven years; but if they speak of a Minor above Se∣ven years, none of the Authorities which they alleadg will reach to the maintenance of their Assertion; for they quote but two Authorities, that is to say the Ca∣put literas, and the Caput accessit de Despons. impub. both which expresly state the Case of Minors under Seven years, and accordingly resolve the same: for the Caput literas states the Case of a Minor in Cunabulis thus; Cum quidam esset perfectae aetatis quandam puellam in cunabulis desponsavit, procedente verò tempore, matrem pu∣ellae cognovit, & eam in uxorem accepit. And the Reso∣lution there is; Si praefatus vir matrem puellae, antequam Septimum annum complêsset, in uxorem accepit, matrimo∣nium

non dissolvas, cùm desponsationes hujusmodi nullae sunt, quae in cunabulis fiunt. This Case differs in two things from ours, for the Minor was in Cunabulis, and there∣fore the first Contract was void; and though the Mi∣nor could not in that case, coming to seven years of age, obtain the Man by reason of Affinity contracted by the second Marriage, yet the Mother was divor∣ced; which shews that the second Marriage, not only in case of a Minor, being above seven years of age, but after, being under seven years, and afterwards ar∣riving at Seven, and then consenting, is invalid; for which Reason the Man was divorced from the second Wife, though not restored to the Minor, by reason only of the impediment of Affinity contracted: nay had the second Wife been of a remoter degree to the first, neither Marriage could have subsisted by the Law of the Church of Rome: not the first, propter im∣pedimentum Affinitatis; or the second, propter impedi∣mentum Justitiae publicae honestatis. And as for the Caput accessit, it states the Case, and resolves it to the same purpose; So that 450 Decision of the Rota Romana can make nothing against the Lord of Decies in this Case, unless the said Rota had power to repeal the Rule of Logick, which prohibits the Inference of a Generality from a Particular. Again, It is in the Case of Doctors and Judges giving their Opinion, as it is with Witnesses rendring a Reason for their Deposition, wherein there is dictum, and the ratio dicti:

if the Dictum be inconcludent, and the Reason there∣unto annexed be valid, the Dictum is made valid by the validity of the Reason; but on the contrary, the Dictum is not valid, if the Reason thereunto subjoyn∣ed be not conclusive; as for example: If the Wit∣ness should depose thus: It is true, Titius did lend one hundred pounds to Seius, because I heard it so report∣ed: Upon this ground his Testimony would be in∣valid, by the failer of his Reason in point of Argu∣ment; and it is as easy to determine, that the Allega∣tions of the Rota, being incompetent to prove their Assertion, the same must fail; for, quod inest termino referenti, intelligitur inesse termino, ad quem est facta rela∣tio. Hence it is that Navarrus de Despons. Impub. n. 4. saith Nicholas Papa relatus à Gratiano, ex illa Clausula in∣tegra [ubi non est consensus, ibi non est conjugium] solum infert quod pueri in cunabulis existentes non possunt contra∣here Matrimonium, & ita mens ejus fuit dicere, quod con∣sensus infantilis non sufficit, quod omnes fatentur; and herewith agreeth the Civil Law, L. in Sponsalibus: ff. de Sponsalibus, where it is said, That Marriage is validly contracted, si personae non sunt minores septem annis.

There is one Objection more I would obviate, which is this; That Fornicatio est dissolutio Sponsalium. To which I answer; That true it is that Fornicatio, is, Solutio Matrimonii, but such a Solution as doth not depend upon the will of the Nocent party, but on the Consent of the Innocent; for (say the Canonists)

Fornicatio ad Solutionem Matrimonii non pendet ex illo cu∣jus est culpa sed ex alterius consensu.

There rests yet one Objection more which now comes into my mind, which is taken from the cap. si inter. paragrapho, si vero inter; grounded upon these words, Matrimonium consummatum fortius vinculum est matrimonio rato, (and that) inter vincula inaequalia fortius, & si posterius vincit: But these words being rightly understood, do not reach to our case; for that Para∣graph is in case where the Sponsalia were de futuro, & non per verba de praesenti; and it is rashness from a spe∣cial Case there defined, to collect this general Rule, which is severely reprobated by Bartholus and Ledes∣ma dubio 13 de Matrim. casu 2. for, as we said before, Sponsalia per verba de praesenti, are improperly so called, respectu vinculi matrimonii, sed respectu executionis matri∣monii: for Panormitan ad dictum, Caput si inter, saith, Uter{que} spondet in futurum respectu executionis sed respectu vinculi promittit de praesenti: And though it hath been said, that the Marriage of Persons under Age are re∣puted as Sponsalia de futuro, yet this is to be under∣stood respectu executionis, non respectu vinculi; so that in our Case the Vinculum, and the Execution may de∣pend upon the Consent of the Lord of Decies when he comes to Age; but the Lady is indissolubly tied ratione vinculi, being above Twelve years when she was married to the Lord of Decies, and may be com∣pelled to consummate the same Marriage, and the

rather, for that the second pretended Marriage was contrary to the Inhibition of the Church, and there∣fore could not be so valid or capable of the priviled∣ges of the first, according to the practice and presi∣dent of the Court of Arches in England, viz. Clarkes practice, tit. 200. But further, both parties to the se∣cond Marriage are to be punished and corrected, as you may see in the said Clarkes practice, tit. 199. de puniendis personis solemnisantibus vel contrahentibus matri∣monium lite pendente ac contra inhibitionem Judicis; —And for that the Sponsalia celebrated between her and the Lord Decies could not have been dissolved but by the Judges Ecclesiastical; Again, we say, that quod vincu∣lum matrimonii, matrimonium ratum & consummatum, are of equal force; and that so often as two incompassi∣ble bonds of equal force are contracted, the first pre∣judiceth the second; and therefore it is, that frangen∣tes Sponsalia jubentur cogi censura Ecclesiastica ab Alexan∣dro, 3. C. ex libris Sylvani de Sponsalibus & C. praeterea: eod. tit. That is to say, they who violated such Espou∣sals, are commanded by Alexander the third by Eccle∣siastical Censures to performance. And where it is said, that Matrimonium consummatum fortius est vincu∣lum; it is to be understood, as we said before, in the Comparison between Matrimonium consummatum, and Sponsalia per verba de futuro.

Having thus fully answered the aforesaid Objecti∣ons, I shall clear a mistake of some upon the Statute

of Henry the eighth concerning Marriages: For tho in the said Statute it be enacted, that the second Mar∣riage consummate with fruit of Issue be to be ap∣proved of before any Marriage unconsummate, yet the said Statute was repealed in the time of Edward the sixth, and did not recover strength by the Statute of 1. Eliz. in England, or 2. Eliz. in Ireland, save on∣ly as to the degrees of Consanguinity, mentioned in the said respective Statutes of Queen Elizabeth.

I am to clear also another mistake of those who in∣sist so much upon reciprocation of Contracts in mat∣ters of Marriage; as if the inequality of Conditions in a Contract could not stand with reciprocation thereof; as for example: Titius sells his Horse to Seius, and delivers the Horse, the other receives the money; yet, if in the Contract there be a clause of Retrovendition, there is a reciprocation of Contract, though the Seller may have the Horse back again by vertue of that clause: Even so, though the Law im∣plies the condition of Reclamation, yet the Contract is good and reciprocal until such Reclamation be made.

By what hath been premised it clearly followeth in the vigour of good Consequence, how great a dif∣ference, and different effects there are between the pusilage of one contracting Marriage under Seven years, and the minority of one contracting above Se∣ven years: for in the first Case, the Justice of publick

Decency and Honesty (as the Canonists term it) takes no place; but in the latter Case, there ariseth impedi∣mentum publicae honestatis sufficient for Diremption of Marriage; so that upon dissolution of Marriage by dissent at twelve or fourteen years respectively, the party dissenting cannot lawfully marry by the Ca∣non Law with the Kindred relating to the other par∣ty within the degrees prohibited. And the Reason is, because that if he be under seven years he hath no consent to bind him, but if he had compleated se∣ven years, he had a consent. And for the same Rea∣son, if a Male under seven years marry with one of Age, the elder shall not be bound; but if the Male be above seven years of Age, and the Female twelve, she shall be bound, though the Male hath his liberty to stand to, or depart from the Marriage: And there∣fore saith that celebrated Doctor, and famous Glos∣sary, Petrus de Anchorano on the sixth Cap. si Infantes de despons. impub. Nota quod quandoque contrabit sponsa∣lia Infans cum majore Infante, quo casu, si non oritur ex parte Infantis, Justitia publicae honestatis, non oritur ex altera parte, secus si Sponsalia contrahat pubes cum impu∣bere majore septennio. Observe his Reason, quia pubes ef∣ficaciter obligatur, impubes verò potest per poenitentiam resi∣lire.

* 1.2Furthermore, To shew that Decisions of this Controversie in favour of my Lord of Decies are not wanting, hearken to the words of Panormitan, Cap.

ex literis de despons. impub. Deciditur (saith he) quod ma∣jor non potest dissentire, sed minor factus major: whence he concludes, that Major contrahens cum minore tenetur ex∣pectare minorem donec perveniat ad aetatem legitimam.

Although what hath been said is sufficient to esta∣blish this Assertion upon an authentick Foundation, yet out of the Spring-tyde of Legal Proofs I shall at this time, out of a greater number (which for want of time I cannot now insist upon) bring in the con∣currence of other Authors, as well Casuists as Cano∣nists, without any unnecessary enlargement, to shew further the Consent of Common Opinion in this be∣half;

And first I begin with Dominus Cataneus, vocabulo Sponsalia p. 416. qui legitima celebravit sponsalia; tenetur sub reatu laethalis criminis procedere ad solemnizationem Matrimonii in facie Ecclesiae.

Hostiensis de desp. impub. n. 11. Sin autem pubes cum impubere contraxit, tenetur pubes expectare donec impubes veniat ad legitimos annos, ligatur enim adeo pubes quod non potest reprobare semel probatum, minor tamen veniens ad an∣nos legitimos si non consenserit poterit resilire; (and there∣after) cum enim semel consenserit pubes, scilicet per ver∣ba de praesenti. The Reason is this; Pubes fortius obli∣gatur quâm impubes, quia maturioris consilii est, plerunque enim aetas impuberis quod videat, ignonat, & sciens, fallere non videatur. Wherefore let no Man wonder at the Reason why the Lady should be more obliged than

the Lord of Decies, whilst he hath a power reserved to himself of dissenting. Summa Armilla sub vocabulo, sponsalia, Impubes cum pervenerit ad aetatem debitam potest contradicere, pubes autem nunquam.

Boych saith thus: Extra, de Despons. & Matr. Cap. perquisivit, quoting Gofridus in summa tit. eod. Indistinctê pubes dissentiens cogi debet ad celebrandum: Whence it follows, that notwithstanding the pretended second Marriage, the Lady Decies is compellable to restitu∣tion to the Lord Decies.

Arnoldus Corvinus Juris Canonici lib. 2. tit. 12. Con∣trahere sponsalia possunt omnes tâm puberes, quàm impuberes qui septennium excesserunt. C. accessit 5. de despons. impub. quia voluntas quae in naturali consensu quiescit, in eos, qui septem annorum complêrunt aetatem, cadit; L. si Infanti 18. §.ult. & L. potuit. 5. C. de Jure de lib. Ante si contraxerint post septimum annum legitimo consensu, C. duo pueri, 12. & ibi Abb. eod. vel cohabitatione. C. literas 4. §. fin. C. accessit. 5. versi consensus. C. duo pueri 12. eod. vel nixu ad coitum. C. juvenis 3. hic. C. fraternitati 7. de eo qui cogn. cons. accedente convalescunt.

Marchantius de Matrim. respons. ad 2. quaest. Respon∣deo ad secundum: Dominam A. B. contrahentem post an∣nos pubertatis cum Domino, C. D. impubere sive ante puber∣tatem C. D. sive post permanente consensu C. D. non posse reclamare vel resilire: Est textus planus & apertus. C. de illis de desp. impub. quod est Alexandri tertii ad Ba∣thoniensum Episcopum, ubi sic habetur; Mulier autem quae

postquam annos nubiles attingit, ei, qui nondum ad annos ap∣tos Matrimonio venerat, nupsit, cum in eum semel consen∣serit, amplius non poterit dissentire, nisi ipse cui nupsit, post∣quam ad legitimam aetatem pervenerit, in eam suum negave∣rit praestare consensum: sed in proposito casu Domina A. B. postquam annos nubiles attigisset, nupsit Domino C. D. qui nec dum ad annos aptos Matrimonio provenerat: ergo non potest amplius dissentire ex parte sua, nisi Dominus C.D. ipse resiliat: Ratio autem cur puberibus potestas resiliendi non concedatur, sed solum impuberibus est, quiâ pubes censetur habere plenam perfectam{que} aetatem & prudentiam ad delibe∣randum, non sic vero impubes qui cum eo tempore quo ducit, non sit aptus Matrimonio & Generationi, ejus consensus datus ante pubertatem non censetur perfectus, nisi vel ratificetur post pubertatem adeptam, vel saltem perseverare censetur; Quam rationem eximpubere Judicat. C. de illis, supra cita∣tum. Corporis sui ad generationem, censetur quidem modo illam dare, ita tamen ut plena possessio tantum pro tempore quo erat aptus generationi accipiatur.

Henricus Boych in tertio Casu, scilicet, Quando alter contrahentium Spónsalia est pubes & alter impubes refert. Aut quaeris utrum ille qui erat pubes tempore sponsaliorum possit reclamare: & dic quod non, ut hic, in §. Mulier autem, aut ille qui erat impubes: Nunc verò factus pubes: & dic, quod sic: dummodo in eo tempore quo pubescit vel in∣continenti post reclamaverit: ut in Paragrapho allegant, si vero, unde quando pubes cum impubere contrahit, statim te∣nent Sponsalia quoad utrumque, & uterque expectare tene∣tur

quo usque impubes ad pubertatem perveniat, & tunc si reclamat, solvuntur sponsalia, si non reclamaverit, ab Ecclesia contrahere compelluntur.

It may now appear out of the aforegoing discourse to the full satisfaction of all persons, whose Interest will give them leave to comply with Reason and Authority, the greatest Patron of Belief, that the par∣ticulars of the subsequent Recapitulation of the Pre∣mises are most true: Viz.

• 1. That the Lord of Decies (as represented in the foregoing Case) is so far obliged by the Marriage had and solemnized in facie Ecclesiae by the Archbishop of Canterbury, that he cannot make Reclamation thereof before he shall attain to the age of Fourteen years.
• 2. That the Lady being above Twelve years of age at the time of the Marriage so solemnized, as a∣foresaid, could not either in Law or Conscience, neither can she hereafter reclaim, or depart from the said Marriage, until Reclamation be made by the said Lord of Decies at his age of Fourteen years: wherefore there is no Reason she, being of Age at the time of the Contract, should be at her own disposal, whilst he is bound not to dispose of himself.
• 3. That the Lady Decies in Conscience in bound, and by Law may be compelled to cohabit with the said Lord of Decies, if he shall think fit to associate himself at his age of Fourteen.

• 4. That she ought to have been sequestred, and still should be sequestred pendente lite, which undoubt∣edly the Judges will do upon due requisition.
• 5. That no Marriage against the particular Inhi∣bition of the Church ought to be priviledged, or to prejudice a former Marriage lawfully solemnized.
• 6. That the Consequence of allowing the Lady Decies to continue in Cohabitation with Mr. Villiers would be extreamly injurious to my Lord of Decies, and a pernicious example and effect to the Publick.

For which Reasons it is hoped, that no Man, who was not a Counseller in the Design of the second Marriage, will approve of it in the post fact, or will think that it is to be countenanced under the umbrage of a fieri non debet, sed factum valet: for that sentence of Law, though in some Cases it might make good that which was otherwise unlawful, yet it doth not hold to the prejudice of a third person; nor can it make that void, which in it self is indissoluble and cannot consist therewith, unless priority of Contract should yeild to posteriority; or the Law 1. Eliz. con∣cerning Marriages were Repealed.

Dated the 30th of Octob. 1676.

Dud. Loftus.

Notes

• * 1.1

  Johannes Gutierres re∣pet. §. sui n. 112. vid. Bartholum in L. non solum. §. si liberati∣ones verba, n. 7. ff. de libe∣rat. legat.
• * 1.2

  Observe a former decision of the Case.