4. Of the Contract

MArriage hath two distinct parts, the first is the beginning; the second, the accomplishment or consummation thereof.

The Beginning, is the Contract or Espousals; the End or accomplishmēt, is the solemne Manifestation of the Contract, by that which properly we call Mariage. Deut. 20. 7. What man is there that hath betrothed a wife, and hath not taken her? Let him go and returne againe vnto his house, lest he die in battell, and another man take her. Matth. 1. 18. When his mother Marie was betrothed to Ioseph, before they came together, She was found with child of the Holy Ghost.

Betweene the Contract and Marriage, there ought to bee some certaine space or distance of time. The reasons whereof may be these:

First, a businesse of so great importance as this is, would not be rashly or p. 19 vnaduisedly attempted, but should rather be done by degrees in processe of time, according to that saying, not so ancient as true.²⁶ Actions of weight, before resolution, require mature deliberation, Secondly, That during such a space, inquirie may be made, whether there be any iust cause, which may hinder the consummation of Marriage: considering that before the parties come and conuerse together, what is amisse may be remedied and amended, which to do afterward will be too late. Thirdly, In these cases, persons espoused must haue regard of honestie, as well as of necessitie; not presently vpon the Contract, seeking to satisfie their own fleshly desires, after the manner of bruit beasts, but proceeding therein vpon mature deliberation.

1. 26. Diu deliberandum quod semel statuendum.

The Contract is a mention or mutuall promise of future mariage, before fit and competent Iudges and Witnesses.

The best manner of giuing this promise, is, to make it²⁷ in words touching the present time, and simplie without any p. 20 exception or condition expressed or conceiued. For by this meanes it comes to passe, that the bond is made the surer, and the ground or foundation of future mariage the better laid. And hence alone it is, that the persons betrothed in Scripture are termed man and wife. Iacob speaking of Rahel, who was only betrothed vnto him, saith to Laban, Giue me my wife, Genes. 29. 21. Deut. 22. 23. If a maid bee betrothed to a husband, and a man find her in the towne, and lie with her, then shall yee bring them both out vnto the gates of the citie, and shall stone them with stones to death, the maid, because she cried not being in the citie, and the man, because hee hath humbled his neighbours wife. Matth. 1. 20. Ioseph feare not to take Mary thy wife.

1. 27. In verbis de praesenti.

Now if the promise bee vttered in words,²⁸ for time to come, it doth not precisely bind the parties to performance. For example, if one of them saith to the other; N. I will take thee, &c. and not, N. I do take thee, &c. by this forme of speech the match is not made, but only promised to bee made afterward. But if p. 21 on the other side it be said, N. I do take thee, and not, I will take thee; by these termes, the mariage at that very instant is begun, though²⁹ not in regard of fact, yet in regard of right and intrest, which the parties haue each in another in deed and in truth. And this is the common opinion of the learned. Yet notwithstanding, if the parties contracting shall say each to other, I will take thee to, &c. with intention to bind themselues at the present; the bond is in conscience precisely made before God, and so the Contract is indeed made³⁰ for the present time before God. True it is, that he which standeth to his promise made, as much as in him lieth, doth well: yet if the promise hath or conceiueth some iust cause, why hee should afterward change his purpose, the Contract expressed in termes for time to come, though it were formerly made, & confirmed by oath, must notwithstanding giue place to the Contract made for time present.

1. 28. In futurum.
2. 29. Non de facto, de iure.
3. 30. De praesenti.

Those espousals, which are made vpon condition, which is honest, possible, p. 22 and belonging to Mariage, doe cease or depend: so far forth as the condition annexed ceaseth or dependeth. For example; If the one partie promiseth to marry the other vpon cōdition, that his or her kinsman will yeeld consent to the match; or vpon condition of a dowrie that shee shall bring vnto him, sutable to her education, and the familie whereof she commeth: these conditions being kept or not kept, the promise doth likewise stand, or not stand.

But those conditions which are necessarily vnderstood, or which may certainly be kept and come to passe, do neither hinder nor suspend Marriage. As this: I promise thee mariage, if I liue; or, I promise to marie thee, if the Sunne rise to morrow.

Againe, conditions that are either impossible or dishonest, are not to bee accounted as promises annexed³¹ in way of Marriage. Of which sort are these, I will be thy wife, if thou willt take vnto thee wings and flie, or, If thou wilt bring an vntimely birth.

1. 31. Jn sauorem Matrimony.

p. 23 Furthermore, if the parties betrothed, do lie together before the condition (though honest & appertaining to mariage) be performed; then the contract for time to come is, without further controuersie, sure and certaine. For where there hath been a carnall vse of each others bodie, it is alwaies presupposed, that a mutuall consent, as touching Mariage, hath gone before.