Marriage by the morall law of God vindicated against all ceremonial laws of popes and bishops destructive to filiation aliment and succession and the government of familyes and kingdoms

CHAP. III. Marriage, Filiation, and Succession, not to be judged by the Law-Civil, Canon, or Feudall.

AS to the Author of the Civil Law, or rather the Emperor, in whose name and time the same was compiled, he was Justinian,

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whom, though his own Parasites extoll'd for a God, and his Lawyer Tri∣bonian imployed by him or his Wife Theodora, to do the work, claws him with a doleful Compliment, that he was in great fear least he should be rapt up into the Heavens, when he little thought of it for his singular Piety to their insufferable loss. Yet Procopius makes him a Devil, and doubts very much whether he were not a Devil incarnate more likely, when he little thought of it, to be rapt to Hell. Bodin indeed speaks something, Fol. 17. may clear him from being a Daemon, for he saith, He was a blockish unlearned Prince, and out-witted by his Wife Theo∣dora, when she pleased, and caused by her to make Laws only for the advantage of the Women against the Men; and Procopius likewise com∣mends his Justice, and saith, That he used when he could catch them, to take Bribes of sides, and if any who had a Sute before him presented him with a Bribe, he was sure to carry his Cause, unless the other Par∣ty counterballanced him with another. As to the Collection of Laws attributed to him, it cannot be denied, but there are a multitude of excellent Laws of Nature scatter'd through the great Mass of them, but in such a confusion, as is rather proper to a Chaos, then an orderly Digest. Then for the bulk 'tis an Hundred times bigger then necessary, and the Evil Laws which increase it to that greatness in number, over∣whelm and in Nature destroy or make useless the Good. As to the Re∣ligion in them it is Popery and Superstition. The Justice is Tyrannical and Arbitrary Government, the Mercy of them is Racks and all in∣human Tortures.

The Heads of the Civil Law prohibiting to marry, are comprehend∣ed in the Verses following.

1.	2.	3.	4.	5.
Aetas,	Conditio,	Numerus,	Mona,	Et Ordo,
6.	7.	8.	9.	10.
Optio,	Nobilitas,	Sanguis,	Tutela,	Potestas,
11.	12.	13.		14.
Fons Sacer,	Affinitas,	Raptus,	Repugnat	Honestas,
Irrita quae faciunt Connubia legibus, haec sunt.

1. The first cause making marriage void, or voidable, is Age, if the Man is under 14, or the Woman under 12.

2. Condition, If it be servile, they were not allowed to marry Cere∣monially, but might lie with one another, and get new Slaves.

3. Number, If a Man have one Wife, he ought not to have ano∣ther.

4. If either Person be Monastick, as a Monk or Nun.

5. Being within Orders, as a Priest or Clerk.

6. Adoption prohibits mariage between the Adopting and Adopted.

7. Nobility heretofore prohibited marriage with a Plebeian, and Sena∣tors and their Children, per Legem Papiam & Juliam, with their freed Women, or others of so mean Condition. A wicked Law, and contrary to the Law of God, for they might lie with Plebeians, but not marry them.

8. Consanguinity, in respect of which, three sorts of Persons are consider'd, the Ascendents, Descendents, and Collaterals.

9. A Guardian is prohibited to marry his Pupil.

10. A President of a Province is prohibited to marry one subjected to him, by reason of his Jurisdiction, in which two last cases the reason is, that marriage might be free, and not compell'd by the Awe or Power of Authority.

11. Fons Sacer, the Font of Baptism, is by the Pope made to con∣tract a spiritual affinity or kindred between the God-fathers and God-mothers, and Child Baptized; for whom, or their Children to marry within the fourth degree is made without any sence, as Incestuous, as if within the degrees of Carnal kindred.

12. Affinity, in which are the same Considerations of Prohibition to marry, as before in Affinity.

13. Rape; for by the Civil Law the Ravished was prohibited to mar∣ry the Ravishor.

14. Such Matters as are thought against Honesty, or are of ill report, according to the Manners of the People.

As to the Canon Law, Aquinas, Cajetan, and others, recite the Ver∣ses following, which have left out some of these Matters relating to the Civil Law, and added difference in Religion and other Matters withal, to the Modern Canons, in the manner following.

Error, Conditio, Votum, Cognitio, Crimen, Cultus, Disparitas, Vis, Ordo, Ligamen, Honestas, Si sis affinis, si forte coire nequibis, Haec sociandà vetant, Connubia facta retractant.

Which likewise may be easily understood by Exposition before made of the former. But they are likewise many of them wicked, and contra∣rg to the Law of God,

The Civil Law is a Cento of Rescripts of Emperors, a frippery of Opi∣nions of Doctors, Planting the Sword for the Ballance, Superstition for Religion, Tyranny for Government, Antinomies for Laws, Torture for Judgment, Gain for Godliness, Iniquity for Justice, Confusion for

Method, Fiction for Truth, Form for Matter, Manner for Merit, Ceremo∣ny for Substance, a Powder of Impertinents, a Remedy worse than the Disease, a Whirl-pool of Vertigoes, a Rock for Shipwracks, a Gulf to swallow Money, a Sea driven with contrary winds, a Bottomless Deep of Doubts, a Chaos of Controversies, an Abyss of Darkness, a Bulk broken with it's own weight. Anno 1520. The Pope and Papists Excommuni∣cating Luther, he appealeth to a Council, and burneth the Canon Law, and the Popes Bull at Wittenberg.

Calvin tit. Cynus writes of him thus, Cynus jurisconsultus Pistorii natus, Dyni Maxellani auditor, Bononiae jus civile professus est, libros{que} de eo non pau∣cos ita scripsit, ut semper à Pontificiis canonibus abhorret. In interpretatione l. quoties C. de Jud. scribit Canonicum jurisconsultum secisse sibi jura pro libitu voluntatis suae, & leges civiles servare eas ad commodum suum, non autem contra se, propter ambitum secularis jurisdictionis usurpandae, & non propter aliud. Cynus a Professor of the Civil Law at Bononia, and one wrote many Books concerning the same, yet did always very much abhor the Papal Canons, and writes in interpretation l. quoties C. de Jud. that the Canonists made all their Laws according to their own Arbitrary will, and observed the Civil Law only for their profit, and not when it made against them, out of Ambition to usurp Temporal Jurisdiction to themselves, and to no other end. The Canon Law is deservedly likewise censured, by the Lord Bishop of Lincoln in his late learned Book against Popery, fol. 35. where having recited many wicked positions in it, he concludes in these words, Thus much (and may be too much) for the Canon Law, that sink of Forgeries, Impiety, and Disloyalty; for I scarce know any Book, wherein are more forged writings (under good name sometimes) for bad purposes, and more impious Doctrines, and Positions own'd and authoriz'd for Law, and that by one who pretends, though without and against reason, to be Christ's Vicar, and Infallible; or any Book which hath more Seditious and Rebellious principles of Disloyalty. This I only say now, but when I have what I now want, time and opportunity, I can and will (〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉) make it good, how dangerous, (and when believed and practised) how pernitious to Kings and Princes, the principles of that Law are. I hope all Bishops will hereafter be of the same mind, and not own the Canon Law to be the Rule of Marriages, and Legitimations, or Successions of Protestant Kings, and Princes, or their Subjects; or for their Pardons and Excommunications, or fit to be any longer the Ecclesiastical Law, for the Government in any thing of Three Protestant Kingdoms.

As to the Feudal Law, I shall defer it till I come to speak of the wicked obligations of some Tenures, to prostitute the Virginities of their Daugh∣ters to the Lords of the Land. It is enough for to shew the slavery of Feudal Laws, if we but remember the late Wardships of Tenures, wherein the marriages of Men and Women were bought and sold, as if Beasts in

the Market, and the unjust Laws yet remaining in customary Estates, pro∣hibiting Widows to marry; and marrying young Women to old decre∣pit Men, not fit for marriage, to get a Widow's Estate: whereby they are left exposed to infinite Temptations. The wicked custom of March••ta Mulieris belongs to the Feudal Law. March••ta mulieris dicitur Virginalis pudicitiae prima violatio & delibatio, quae ab Eveno Rege sibi, & capitalibus dominis fuit impie permissa de omnibus novis nuptis, prima nuptiarum nocte. sed pie à Malcolmo 3 sublata fuit & in capite sequente certo vaccarum nume∣ro & quasi pretio redimitur. Sken. Reg. Ma. lib. cap. 31.

• 1. It is to wit that conform to the Law of Scotland, the Marchet of ane Woman noble, or Servant, or Hireling, is ane Zoung Kow, or three shillings. And the right duty to the Sergeant three pennys.
• 2. And she be Dochter of an Frie-man, and not of the Lord of the Vil∣lage, her Marchet shall be one Kow, or six shillings; and for the Sergeants duty, sax pennys.
• 3. Item, The Marchet of ane Thane or Ochiern twa Rye, or Twelve shillings, and the duty to the Sergeant Twelve pennys.
• 4. Item, The Marchet of the Daughter of an Earl pertains to the Queen, and is twelve Rye.

The Spaniards in the West Indies setting a Tribute to the King, and the inferior Lords, to be paid yearly by every married person. To encrease these yearly Tributes from married persons, they every year survey by List, the married persons of every Town: and cause their Children, Sons and Daughters to be brought before them, to see if they be fit to be mar∣ried; and if of growth fit, they threaten the Parents for not marrying them, and raise his Tribute by way of Fine, till he marry them. And the set time they appoint for marriage to the Indians, is 14 to the Man, and 13 to the Woman; yea, some they compel to marry scarce 12 or 13 years of Age, if they appear of more forward strength; yea it is a shame to see how young they are inforced to it, pag. 155. So between the King of Spain and the Pope, the poor Indians pay dear for marriage, which God left free.

The Civil Law is said to be Jus Leoninum, The Canon Law Jus Vul∣pinum, The Feudal Law Jus Asmarium, in regard of the intollerable op∣pression and servitude in it: I conclude therefore Marriage, Filiation, and Succession, not fit to be judged by any of these three Laws.

Notes

• Civil Law.
• Canon Law.
• Canon Law.
• Feudal Law.