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THose which are under Age cannot Contract Marriage without consent of their Father and Mother, or others under whose care they are committed, nevertheless if their said Father and Mother be so unreasonable as to refuse to agree to a thing so Holy and Profitable, even doing it in
hatred to Religion, the Consistory shall advise the Parties to have their recourse to the Magistrate.
The Discipline of the Antient Church has provided for what ours doth here enjoyn, and hath taken care to keep Children in the respect and obedience which they owe to their Parents, forbidding them to marry with∣out their consent, and 'tis not only in regard of Chil∣dren it does so, but also in regard of all such as are under Tuition of others; It is the matter and subject of the 42 Cannon of St. Basils second Canonical Epistle. * 1.1 Marriages made without consent of those under the power of whom one is, are Fornications, those then who marry during the Life of Father, or Guardian, are not excusable till their consent be had, for then the Marriage becomes lawful, and receives the vertue which it ought to have: This Cannon is as 'twere an abridgement of Two preceeding ones, as is observ'd by Balzamon and Zonares, Greek Canno∣nists, who pretend that Marriage is void without the consent I but now speak of, and that it ought to be dissolv'd. The 23th Cannon of the same Epistle is also very full to this purpose, Maids which follow their Lovers without consent of Father, &c. live in Fornication, but if Father and Mother are reconcil'd to them, the thing seems to be setled in a good state by this remedy; nevertheless that they be not admitted to partake of the Lords Supper until af∣ter three years Pennance: Whereupon the same Greek Cannonists above-mentioned, observe, that the consent of Parents, that is to say of Father and Mother, doth change Fornication into lawful Marriage, without de∣parting at all from the sensure contain'd in the Cannon.
The 22th Cannon of the Fourth Council of Orleans, * 1.2 in the Year 541, prohibits the taking a Maid in Marriage without consent of Father and Mother, the Sixth of the Third Synod of Paris, Anno 557 forbids also the same thing. The Third Council of Toledo made a like Decree Thirty Two years after the Synod of Paris, and 'tis still to be seen in the Fourth Volumne of the Coun∣cils, and in the Tenth Cannon, it is to what amounts the 358 chap. of VII. Book of the Capitularies of Charlemain, and Lewis the Debonnaire. Photius Patri∣arch of Constantinople saies the same in the Fifth of his Letters taken out of an Ancient Eastern Manuscript; there is not so much as the very cheat that has forg'd Two Decrees in the Name of Pope Evaristas, * 1.3 but has in the first of them taught the same Doctrine, and word for word as it is expressed in the Capitulary, but now cited; so that of necessity one must have borrowed it of the other. It is easie to judge after all I have hi∣therto said, Whether the Council of Trent does march in the steps of the Antient Tradition, when in the 24th Session, which is the Eighth under Pius the Fourth, in the Year 1563, and in the First chap. of the Decree touching the Reformation of Marriage, * 1.4 It anathematises those which affirm Marriages contracted by Children with∣out consent of the Father and Mother are void, and that the Father and Mother may break or ratifie them: a Condem∣nation wherein Pope Celestin the First is concern'd if we believe what Gratian reports of him in the First Volume of the Councils, cap. 4. p. 910.
Whereas our Discipline adds, That if Fathers and Mothers should be so unreasonable as not to consent to so holy and profitable a thing, the Consistory may ad∣vise the I arties to have their recourse to the Magistrate; it says nothing therein but what is agreeable to the An∣tient
Practice, as we find by the Letter of Photius, * 1.5 which I mention'd; for he declares that then the Judge may take cognizance of the Marriage, and declare it lawful, in preferring the protection of the Children, and their lawful desire, before the perverseness of Father and Mother.
Tom. 3. p. 33.
Tom. 1. Conc. Gall. p. 265 Ib. p. 316 pag. 5••4.
pag. 391.
Tom. 9. Conc. p. 411.
pag. 392.