Then & Now · 8 of 19
7. Of Rejection, or Refusal of the Contract
CHAP. 7.
Of Reiection, or Refusall of the Contract.
7. Of Rejection, or Refusal of the Contract
A lawfull Contract is then dissolued, when some great and hainous fault followeth immediately vpō it, in either of the parties espoused. And from hēce arise diuers and sundrie cases to be set downe and resolued.
A lawful contract is then dissolved, when some great and heinous fault followeth immediately upon it, in either of the parties espoused. And from hence arise divers and sundry cases to be set down and resolved.
The first is this. What is to be done, when some disease befals one of the parties immediately after the contract made?
The first is this. What is to be done, when some disease befalls one of the parties immediately after the contract made?
Answ. Those diseases which take away the vse of the bodie, and altogether disable the partie from the performance of the promise made, in respect of mariage p. 78 duties, are very iust impediments of mariage, and consequently do break off the Contract. Of which sort are vncurable palsies, frigiditie, and such like, whereof I haue spoken before.
Answ. Those diseases which take away the use of the body, and altogether disable the party from the performance of the promise made, in respect of marriage duties, are very just impediments of marriage, and consequently do break off the contract. Of which sort are uncurable palsies, frigidity, and such like, whereof I have spoken before.
Neuerthelesse a couenāt once made, is not suddenly to bee renounced, for feare of breeding offence. And therefore some longer respite is to be taken from the time of the contract, in which they are to rest in expectation of amēdment, before the said diseases be publikely and solemnely declared to be incurable, and consequently that the couenant made is become void.
Nevertheless a covenant once made, is not suddenly to be renounced, for fear of breeding offence. And therefore some longer respite is to be taken from the time of the contract, in which they are to rest in expectation of amendment, before the said diseases be publicly and solemnly declared to be incurable, and consequently that the covenant made is become void.
Now, if the disease do not for the present take away the vse of the body, and yet in time proues incurablie contagious, and so lothsome, that the one may iustly feare to keepe and conuerse with the other; as it falleth out when one is tainted with leprosie; then the contract is vtterly to be dissolued, as if God himself should haue commanded it, though the promise was formerlie made, & the parties themselues should be vnwilling. God hath ordained Matrimonie p. 79 to helpe, not to hurt either the persons themselues, or others. Where therefore these diseases be, which may infect, hurt, or destroy others, there God hath, as it were, testified from heauen, that the act done is not pleasing vnto him, and that presently it ought to be frustrate.
Now, if the disease do not for the present take away the use of the body, and yet in time proves incurably contagious, and so loathsome, that the one may justly fear to keep and converse with the other; as it falleth out when one is tainted with leprosy; then the contract is utterly to be dissolved, as if God himself should have commanded it, though the promise was formerly made, & the parties themselves should be unwilling. God hath ordained Matrimony to help, not to hurt either the persons themselves, or others. Where therefore these diseases be, which may infect, hurt, or destroy others, there God hath, as it were, testified from heaven, that the act done is not pleasing unto him, and that presently it ought to be frustrate.
The contract being thus once dissolued, the sounder partie shall be at his, or her libertie to marrie againe. But the diseased is by the Magistrates authoritie, to be forbidden societie with any other in way of mariage, and commanded to lead his life, where he may conueniently from companie, for feare of infection. And withal he is for his owne part, to sue vnto God by prayer in faith for the gift of continencie. For certaine it is, that he to whom God hath denied the power of vsing mariage with good conscience, is thereby euen called to continencie and single life.
The contract being thus once dissolved, the sounder party shall be at his, or her liberty to marry again. But the diseased is by the Magistrates authority, to be forbidden society with any other in way of marriage, and commanded to lead his life, where he may conveniently from company, for fear of infection. And withal he is for his own part, to sue unto God by prayer in faith for the gift of continency. For certain it is, that he to whom God hath denied the power of using marriage with good conscience, is thereby even called to continency and single life.
But if the disease be not contagious, yet either incurable, or so nastie, that either of the espoused hath iust cause to be afraid of the others companie; then p. 80 both are to be aduised, not to claime their right, but willingly to surrender it each to other by mutuall consent, that they may be free againe, & not bound by any former promise to liue together as man and wife. Considering that they haue no hope mutually to conuerse together, with comfort & contentment, while they so remaine.
But if the disease be not contagious, yet either incurable, or so nasty, that either of the espoused hath just cause to be afraid of the other’s company; then both are to be advised, not to claim their right, but willingly to surrender it each to other by mutual consent, that they may be free again, & not bound by any former promise to live together as man and wife. Considering that they have no hope mutually to converse together, with comfort & contentment, while they so remain.
Vpon this aduice giuen by their lawfull Pastor, or some in his stead; if they both yeeld, or one of them at the least desires to be at his owne libertie, the espousals are forthwith to be brokē off. But if neither will consent to a separation, but rather proceed as they haue begun, and in probability the one haue no iust cause to hold the other in suspition, in respect of contagion; they are not to be hindered from the consummation of their mariage.
Upon this advice given by their lawful Pastor, or some in his stead; if they both yield, or one of them at the least desires to be at his own liberty, the espousals are forthwith to be broken off. But if neither will consent to a separation, but rather proceed as they have begun, and in probability the one have no just cause to hold the other in suspicion, in respect of contagion; they are not to be hindered from the consummation of their marriage.
Furthermore, though one of them should haue a disease, which is continuall without intermission, & yet curable, or any other incōuenience should befall either of them, after the sure-making, wherby they become lame, deafe, p. 81 or dumbe, &c. yet this is not a sufficient cause to moue them to renounce, and dissolue the contract.
Furthermore, though one of them should have a disease, which is continual without intermission, & yet curable, or any other inconvenience should befall either of them, after the sure-making, whereby they become lame, deaf, or dumb, etc‸. yet this is not a sufficient cause to move them to renounce, and dissolve the contract.
A second Case. What if it falleth out, that after the finishing of the contract, one of the espoused persons bee long absent from the other, so as the absence bee preiudiciall to the mariage, that should ensue vpon the contract?
A second case. What if it falleth out, that after the finishing of the contract, one of the espoused persons be long absent from the other, so as the absence be prejudicial to the marriage, that should ensue upon the contract?
Answ. Inquirie must be made, whether this absence be voluntarie, or against the will of the partie.
Answ. Inquiry must be made, whether this absence be voluntary, or against the will of the party.
If it be voluntarie. For example; if the man vpon an honest and iust cause, the woman also being priuie thereunto, shall go beyond seas, and being admonished of his dutie before hand, shal notwithstanding stay a whole yeare or more, and will not returne, but further wilfully absent himselfe; then may it be lawfull to the woman, to craue of the publike Magistrate a dissolution of the couenant made, & consequently marry another man, vnlesse the former, to whom she was contracted, be heard of. If he be, then shall it be lawfull for him to pleade for himselfe, and tendring no p. 82 iust cause of his refusall, he shall be forced by the Magistrates authoritie to stand to his promise, and take the woman for his wife. And the same order is to be taken in the wilfull absence of the woman, after she is contracted.
If it be voluntary. For example; if the man upon an honest and just cause, the woman also being privy thereunto, shall go beyond seas, and being admonished of his duty before hand, shall notwithstanding stay a whole year or more, and will not return, but further wilfully absent himself; then may it be lawful to the woman, to crave of the public Magistrate a dissolution of the covenant made, & consequently marry another man, unless the former, to whom she was contracted, be heard of. If he be, then shall it be lawful for him to plead for himself, and tendering no just cause of his refusal, he shall be forced by the Magistrates authority to stand to his promise, and take the woman for his wife. And the same order is to be taken in the wilful absence of the woman, after she is contracted.
If againe, the man or woman shall vpon an euill mind, and with purpose to deceiue each other, absent thēselues, and depart; meanes must be vsed, that they may be admonished of their dutie. That being done, or at least vndertaken, and yet the partie offending will not appeare, if the other that is present, vpon certaine knowledge of his, or her want in respect of continencie, shall sue to the Magistrate; after publike and solemne notice giuen, the contract may be broken.
If again, the man or woman shall upon an evil mind, and with purpose to deceive each other, absent themselves, and depart; means must be used, that they may be admonished of their duty. That being done, or at least undertaken, and yet the party offending will not appear, if the other that is present, upon certain knowledge of his, or her want in respect of continency, shall sue to the Magistrate; after public and solemn notice given, the contract may be broken.
But if on the other side, either of them be absent against their wil, and intendeth no fraud or deceit, but is violently detained, by captiuitie, imprisonment, sicknes, force, banishment, transportation or such like; then the partie present being desirous of the consummation of the mariage, ought either to p. 83 make meanes vnto him, and expect his returne, or haue certaine notice of his death, before she promise, or haue to do with any other in way of mariage.
But if on the other side, either of them be absent against their will, and intendeth no fraud or deceit, but is violently detained, by captivity, imprisonment, sickness, force, banishment, transportation or such like; then the party present being desirous of the consummation of the marriage, ought either to make means unto him, and expect his return, or have certain notice of his death, before she promise, or have to do with any other in way of marriage.
A third Case. What if after the contract, one of the parties becomes furious, or madde?
A third case. What if after the contract, one of the parties becomes furious, or mad?
Answ. If the disease be continuall, without intermission, in all equitie and likelihood, the espousals are to be dissolued, vnlesse both parties after knowledge and experience of the disease, haue knowne one another: yet in this, and all such like cases, it is fit that all good meanes be tried and vsed, and sufficient time be giuen for the restoring of the diseased, to their former good estate, and for the accomplishment of the mariage lawfully begun, as before.
Answ. If the disease be continual, without intermission, in all equity and likelihood, the espousals are to be dissolved, unless both parties after knowledge and experience of the disease, have known one another: yet in this, and all such like cases, it is fit that all good means be tried and used, and sufficient time be given for the restoring of the diseased, to their former good estate, and for the accomplishment of the marriage lawfully begun, as before.