as I humbly conceive, to be both enacted and observed, that no marriage should be allowed of any person whatsoever, except perhaps the peers of the realm who are supposed to be famously known through the kingdom, without a solemn publication of their contracts at three several meetings to the congregation assembled; and that there may no dispensation at all be granted to the contrary, upon any whatsoever conditions. And, if some pretend bashfulness; others, fear of malicious prevention, as the Tridentine Doctors suggest: yet, it is fit, that both should vail, in the inevitable danger of those mischievous inconveniences, which follow upon these clandestine matches and silent dispensations.

CASE X.

Whether marriages, once made, may be annulled and utterly voided; and, in what cases this may be done.

In what only case a divorce may be made, after a lawful marriage, you have seen before: now you enquire of the annulling or voiding of marriages, made unlawfully; which, doubtless, may be done, by just authority, upon divers well grounded occasions: for, as it is an indispensable charge, Those, whom God hath joined together, let no man put asunder; so it no less truly holds, on the contrary, "Those, whom God hath forbidden to be joined, let no man keep together."

Our Casuists are wont to be very copious in this subject: distinguishing betwixt those impediments, which may hinder a marriage from being made; and those, which may undo and void the marriage once made.

They insist upon many particularities of both kinds; and some perhaps, too many.

I shall instance only in those of the latter sort, which are unquestionable.

Whereof the first shall be, a misprision of the match; when one party is mistaken for another: as, when he, who, by a full contract, consented to marry with Anne, is, by a fraudulent substitution, put upon a marriage with Mary; whether upon the likeness of the woman, or the want of a discerning sense in the man, or by some cunning conveyance of the perfidious contrivers for, certainly, it is the consent, that makes the marriage; and, if the hearts be not joined together by mutual agreement and affection, the coupling of the hands is but a ceremony utterly ineffectual. I doubt not, but it was in Jacob's power to have disavowed the match with Leah, whom his father-in-law had deceitfully obtruded upon him; being more injurious in changing his wife, than in ten times changing his

wages; since his heart was not accessary to that match, which the darkness of the night and subtlety of Laban had drawn him into. The like case is in the marrying of a bondwoman, instead of a free; a base plebeian, instead of a person of honour. As, then, we use to say, that mis-reckoning is no payment; so we may well affirm, that a mis-carriage is no true wedlock, and therefore justly to be branded with a nullity.

A second may be, the fodity and unnaturalness of the match; when the parties incestuously marry within the first collateral degree of brothers and sisters: the very mention whereof, even nature itself, not depraved, abhors: so as I cannot but wonder, that the Roman School should be so much divided in this point, while Bonaventures, Richardus, and Durand hold such a marriage, even by divine law, a nullity; contrarily, Aquinas, Cajetan, Thomas de Argentina, and others, whom Covarruvias recites, defend this to be only an impediment by the canon law, and therefore that it may be in the Pope's power to dispense with so foul a matrimony: against whom, upon better reason, Scotus and Dominicus à Soto" prove such marriages, by the law of nature, to be utterly void and null; with whom all ingenuous Christians cannot but willingly concur in their judgments.

A third may be, the horribleness of a crime committed in the way to a wicked match: and that, of two sorts: the one of murder, the other of adultery: the former, when the wife hath conspired with the adulterer to murder her husband with an intent to marry the murderer, or in the like case the husband to murder the wife; the latter, when a man, living in a known adultery with another man's wife, contracts matrimony with the adulteress in the lifetime of her husband.

A fourth is, the indissoluble knot of marriage with a former still-surviving husband or wife; the force whereof is such, as that it frustrates and voideth any supervening matrimony, except in the case specified in the foregoing discourse of divorce, during the natural life of the consorts. Many unhappy and perplexed cases have we met withal, in this kind: neither doth it seldom fall out, that the husband, being confidently reported for dead in the wars or in travel abroad, the wife, after some years' stay and diligent inquisition, finding the rumour strongly verified by credible testimonies and tendered oaths, begins to listen to some earnest suitor, and bestows herself in a second marriage; not long after which, her only true revived husband returns, and challengeth his right in that his lawful wife; pretending the miscarriage of letters and messages, sent by him in

Martin. Alphons. Vivald. Candelab. Aurcum de Matrim. et partic. de Consanguin. "Sot, ibid. q. un. art. 4,

Scot. m. 4. d. 40.

that forced absence. In this case, what is to be done? The woman hath cast herself upon the danger of a capital law, except she have expected the time limited by statute; or, if she escape, one of the husbands is to seek for a wife, whom both may not enjoy. Doubtless, the second marriage is, by ecclesiastical authority, to be pronounced, as it is, null; which, indeed, never had any true right to be: and the first must be content to swallow its own inconveniences.

A fifth may be, a violent enforcement of the match; when a woman is, upon fear of pain or death, compelled to yield herself in marriage; and is not persuaded, but affrighted into the bonds of wedlock: surely, this is rather a rape, than a matrimony; and, therefore, upon utter want of consent, a nullity.

:

A sixth may be, a preceding, irremediable impotency, or incapacity of marriage duties; whether natural, or adventitious; whether by way of perpetual maleficiation, or casualty. I say, preceding for, if any such disability be subsequent to the marriage, the nullity is avoided: but, if the persons find in themselves, beforehand, such remediless incapability of a marriage estate, they shall be highly injurious to each other, and shall foully abuse the ordinance of God, in their entering into such a condition: for it is apparent, that the main ends of marriage are herein utterly frustrate; which were, by God's appointment, the propagation of mankind, and the remedy of incontinency; neither of which being attainable in such a defective estate of body, justly is such a match pronounced a nullity.

But, here, I cannot but take occasion, to commend the modesty of the women of our nation; amongst whom, there are so rare examples of suits, in this kind, prosecuted in our Ecclesiastical Consistories. It is not to be doubted, but there are many defects of this nature to be found every where; yet scarce one in an age offers to complain, and call for redress; so as it seems they are willing to smother all secret deficiencies in a bashful silence: whereas those of other warmer regions, impatient of the wrongs of their conjugal disappointments, fly out into open contestations; and fearlessly seek for those remedies, which the laws, provided in such cases, will allow them. Certainly, the merit of this modest temper is so much the greater, by how much more it is concealed from the world; and those of either sex, that are content to bite in their hidden grievances of this kind, are worthy of double honour from those consorts; whose injurious infirmities they both have not disclosed, and suffer in suppressing.

ADDITIONALS.

CERTAIN CASES OF DOUBT, BESIDES THE FORMERLY PUBLISHED, HAVING BEEN PROPOSED TO ME, AND RECEIVED A PRIVATE SOLUTION; I HAVE THOUGHT FIT, UPON The addresS OF A SECOND EDITION, TO ADJOIN THEM TO THEIR FELLOWS, FOR THE SATISFACTION OF ANY OTHERS, WHOM THE SAME CASES MAY CONcern.

CASE I.

Whether a marriage, consummate betwixt the uncle and niece, be so utterly unlawful, as to merit a sentence of present separation.

Resolution.

WHAT prodigious matches have been of late made, and are still continued, upon advantage taken of the unsettledness of the times, I would rather silently lament, than openly proclaim to the world.

Such as are not capable of any apology, call for our blushing and tears.

But there are some others, which dare stand upon the terms of defence such is this, which you have here propounded in the behalf of your friend, whom it seems a mis-learned Advocate would fain bear up in a course altogether unjustifiable. That cause must needs be desperately ill, that can find no mercenary abettors. His offensive marriage with his niece is heartened by a sophistical pleader; whose wit and skill is so ill bestowed in this case, that I wish his fee might be perpetual silence: but, when he hath made use of his best art to so bad a purpose, those colours of defence, wherewith he thinks to daub over so foul a cause, will prove but water-colours, which shall easily be washed off by this present confutation.

"It was lawful," he saith, "before the Levitical Law, thus to match:"-So were worse marriages than this. Let him tell me, that Cain, and Enoch, and Seth married their own sisters; as Saturn also did, by the report of Diodorus Siculus. Necessity made it then not unlawful. It is a just rule of law: "Those things may not be drawn into precedent, which have

been yielded upon mere necessity :" as we use to say, "Necessity hath no law," so it can make none. Afterwards, as mankind grew, nature itself taught men to keep farther aloof from their own flesh: and still, remoteness of distance enlarged itself with time.

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Abraham," saith he, "married his niece Sarai; Gen. xi. 29. (if at least Sarai were Iscah); Nahor, his niece Milcah; Amram, his aunt Jochebed: and these, not without a large blessing upon the bed:"-Let him tell me also, that Jacob married two sisters, and conversed conjugally with both, which were now shamefully incestuous; yet was herein blessed with the issue of six of those Patriarchs, who were the root of those glorious stems of Israel. If we should speak most favourably of these conjunctions, to rank them under malum quia prohibitum; it must needs follow, that, till the prohibition came, they could not be censured as evil: though good authors make it justly questionable, whether these fore-alleged marriages should deservedly be charged with a sin, or excused by God's extraordinary dispensation. In the mean time, the blessing was to the person; not to the act. Even Lot's incestuous copulation with his daughters sped well: two famous nations sprang thence; and, of one of them, the gracious progenitrix of the Saviour of the world: yet this is no plea for the allowance of that monstrous conjunction. After the Law, one justifiable example were worth a thousand before it.

Lo, good Caleb," saith he, "married his daughter Achsah to his brother Othniel; Josh. xv. 16, 17:"-Indeed, this case comes as home to the business, as it is far off from the text. See whither misprision of Scripture may mislead us. A man, that understands nothing but the English or Vulgate Latin, may easily run into so foul an error. Weigh but the place well, and you will soon find the fault, without me. Othniel, the son of Kenaz, Caleb's brother, took Kerath-Sepher; and Caleb gave him Achsah, his daughter, to wife. The English, wanting cases, expresses it doubtfully. It will be clear in the Latin; as Montanus and Pagnine, two great masters of the Hebrew, in their interlinear, read it, Othniel, filius Kenaz, fratris Calebi; " Othniel, the son of Kenaz, which Kenaz was Caleb's brother." Both the Hebrew and Chaldee clear that sense. So the Septuagint, as Emanuel Sa also urges upon that place; Judges i. 13. expressly say, that Kenaz was the brother of Caleb, and not Othniel. Wherein yet I cannot much blame an unbalanced judgment, while I find the Septuagint contrary to themselves: for, in Josh. xv. 16. they say Othniel was Caleb's younger brother; in Judges iii. 9. they say, Kenaz the father of Othniel was so; for which there is no

* In argumentum trahi nequeunt, quæ propter necessitatem sunt concessa.