THE CASE OF THE VALIDITY OF

A MATRIMONIAL CONTRACT

IN VERBIS DE PRAESENTI.*

A. B. first did ask C. D. whether she would be contracted unto him. She answered, she would. This was done betwixt them two only; no Clergyman or other person being present.

The Contract.

I, A. B., do here, in the presence of Almighty God, contract myself unto you, C. D., by giving unto you my right hand, and do hereby plight you my faith and troth; and do further promise and vow never to marry any other but you, and will use all the speedy ways and means I can for the expediting thereof, according to God's ordinances in the holy state of Matrimony in the Church of England.

C. D. then taketh the hand of A. B. and saith,

I do here, in the presence of Almighty God, contract myself unto you, in the like manner as you have done to me, provided I have my Friends' consent. But, said she, I need not use those words, for that I know I have their approbation. My Mother told me, you had moved it unto my Father; and both of them do like well of it.

Now, the Friends of C. D. not consenting, C. D. saith, she is at liberty to marry whom she pleaseth; and since hath been upon treaty of Marriage with another, but did not proceed to effect, and is willing to give A. B. a release of all Promises, Vows, and Contracts to her made.

First, A. B. desires to be resolved, how far and in what nature this Contract binds him in the Case of Conscience.

*This Case is given, in addition to the Nine heretofore printed, from a Transcript of it preserved in F. D. 12. of the MSS. in the Library of

C. C. C.; and also in P. 18. of those presented by Bp. Barlow to Queen's College.

Secondly, If C. D. gives A. B. a release, being that now Friends will not assent thereunto, though A. B. hath used all the means he can possibly to have their consent to marry her, whether he may be at liberty and free in Conscience, without offending God, to marry any other, whilst C. D. is unmarried or living.

Ad Primam. For resolution herein, it must be inquired to what, and how far forth, A. B., at the time when he made the Contract, did intend to bind himself. For it is a Rule, Deus Juramentum sic accipit, sicut qui jurat intelligit. No Contract bindeth any man in Conscience further than at the time of contracting he did intend, or by the rules of right Reason may be presumed to have intended, to bind himself.

Now, that A. B., at the time when he uttered these words wherein the form of the Contract is expressed, had no intention to enter any Obligation on his part, but with reference to the like Obligation to be immediately entered on the part of C. D. is very probable for these reasons.

1. Because it belongeth to the nature, as of Contracts in general, so of Matrimonial Contracts in special, that they be mutual, equally absolute or equally conditional, so as neither part can be said to be more or less free, neither more or less bound than the other.*

2. Because it had been against all Reason and Equity for C. D. to have required from A. B. such a Promise as whereby he should become bound and she left free; and an act of extreme weakness in him to have consented thereunto, although required by her, whom he loved, so to do.

3. Because, before the words of Contract were pronounced, the Question was first proposed by A. B. to C. D. whether she were willing to be contracted to him or not; which plainly signifieth thus much, that the Obligation on his part was no otherwise intended than he had reason, by her affirmative answer, to presume the like should forthwith have ensued on her part; for, if to that first Question she had answered, 'No,' undoubtedly he would not have proceeded to the Contract.

*In the Queen's College MS. ' so as neither part can be said to be more or less bound than the other.'

4. Because in the case of Marriage, which is certainly, if not stronger, yet at least every way as strong as that of a Contract, though made per verba de praesenti, the Man is not bound by the words of Marriage pronounced by him, if the Woman after refuse to pronounce the like form. As, if the Man shall solemnly say, according to the words of the Book, 'I, A. B., take thee, C. D., to my wedded Wife,' &c, and the Woman should finally refuse to say in like manner, 'I, C. D., take thee, A. B., to my wedded Husband,' the case is clear: the Man were no more bound in Conscience by saying these words than if he had said nothing. And that upon this very ground, that the Obligation ought to be mutual; and to common intendment, inasmuch as of necessity the one of the Contractors, for the avoiding confusion, must speak first, the Obligation of the party that begins is supposed not to arise till the other party that followeth hath spoken also. And if there be any material difference between the latter and the former Promise, (as in the case proposed, the former being absolute, and the latter conditional,) the measure of the whole Obligation arising from the Contract is to be taken from the weaker part. And so, in the present case, the Obligation is to be judged on the part of A. B. to be but conditional, how absolutely soever expressed, because it is no more than conditional on the part of C. D.

Ad Secundam. From which considerations, although it may truly be said that A. B. is not absolutely bound to do according to the express words of the Contract by him uttered in any respect, yet, in answer to the second Quaere also, I take it,

First, that A. B. is bound in Conscience to perform all that was promised on his part, if the condition put in by C. D. shall be at any time hereafter on her part performed.

That he is bound, secondly, to do his utmost endeavour, by his own diligence, the mediation of Friends, and the assistance of godly and discreet Ministers, to press it upon the Conscience of C. D. likewise, that she do her utmost endeavour for the procuring of her Friends' consent, that so, the condition being performed, the Contract may be, according to the first intention, ratified, and all scruples removed. The reason of both is,

because every man is bound to do what in him lieth to make good every his lawful Promise according to the true intent and meaning thereof bona fide; and it is unreasonable to think that any man should therefore be disobliged of his Promise because he taketh no care to perform it, and so reap advantage from his own neglect.

Thirdly, that A. B. is not in Conscience bound, by virtue of that Contract, to live unmarried all the days of his life, in case he cannot obtain the marriage of C. D., although these words, 'I vow never to marry any other but you,' may possibly seem to favour such a construction. The reason is, because the Vow of not marrying any other was made upon the supposal of her mutual resolution to marry him; and that supposal reasonably grounded upon her answering affirmatively to the first Question. For it is not to be imagined, the preceding circumstances considered, that A. B. did by those words intend to make an absolute Vow either of perpetual virginity, if C. D. would not marry him, or, if she would, perpetual widowhood after her decease.

Fourthly, that yet A. B. is in Conscience bound not to marry any other person so long as C. D. is living and unmarried. The reason is, because a conditional Obligation* remaineth in force so long as there is any possibility that the condition may be performed. Now so long as C. D. liveth and is unmarried, it is not impossible but that either the Parents' consent may be obtained, or they may die, and so she become sui juris. In either of which cases she may perform the condition of the Promise and establish the Contract.

But, fifthly, no release given by C. D. can be sufficient so to free A. B. from the bond of his Contract, so far as it is obligatory, as that the Conscience may rest securely thereupon. For howsoever in ordinary Contracts, or Promises made between party and party, wherein the benefit of the party to whom the Promise is made is solely concerned,† the Obligations of such Contracts or Promises may be by the consent of parties released, yea, although they should be confirmed

* In the Queen's College MS. 'because A. B.'s conditional Obligation.'

† Both the MSS. exhibit,

the

Promise is solely concerned.' The addition requisite for completing the sense is suggested in the margin of the C.C.C. Manuscript.

126 THE CASE OF A MATRIMONIAL CONTRACT.

by Oath, yet in Matrimonial Contracts such releases have no place; for a bond* of a Matrimonial Contract is before God of the same nature and effect that the bond of Matrimony itself is; and we know the bond of Matrimony cannot be dissolved by the consent of both parties, or by the release of one. The reason of the difference is, because the Obligation of Matrimony ariseth from the Ordinance of God as well as from the consent of parties. And therefore those whom God by His Ordinance hath joined together, neither themselves nor any other have power to separate.

Sixthly, that yet, so soon as C. D. shall be married to any other person, A. B. is ipso facto free from the Contract, and at liberty also to marry elsewhere. The reason is, because a conditional Obligation† ceaseth, when there is no more possibility left for the performance of the condition.

The result of all is this. A. B. is by the Contract bound not to marry so long as C. D. liveth unmarried; but if she either die, or be married to another, he is at liberty.

ROBERT SANDERSON.

* a bond.' So in both MSS. 'because A. B.'s conditional Obli

? 'the bond.'

gation ceaseth,' &c. as above.

In the Queen's College MS.