ΔΙΓΑΜΙΑΣ ΑΔΙΚΙΑ: OR, The first Marriage OF Katherine Fitzgerald, (Now Lady Decies) Contracted in Fancy Ecclesiae with JOHN POWER, now Lord of Decies, Asserted,  
BY DUDLEY LOFTUS, D. LL. and Judge of the Prerogative Court in Ireland.  If a Damsel that is betrothed to an Husband, and a Man find her in the City, and lie with her: than ye shall bring them both out unto the Gate of that City, and ye shall stone them with stones, that they die. Deut. 22.23. 
LONDON, Printed in the Year, MDCLXXVII.   

To the Right Honourable ARTHUR Earl of Anglesey, Lord Keeper of His Majesty's Privy-Seal, etc.  
May it please your Lordship,  
I Here present to your Lordship's View and Patronage the ensuing Argument of Dr. Loftus on the Case of the Lord of Decies; which, though it be succinct, yet it is so perfect a Dilucidation of Truth, as may serve to enlighten all well-disposed Understandings to the perception of what Determination the Law gives therein; so that I may justly say of him, as Aulus Gellius said of Sallust, Exquisitissimus est brevitatis Artifex, he being as rich in matter, as frugal of words. And though Arguments of this nature may sometimes seem rather to kindle an angry flame, than to quench the fire, by reason either of unfaithfulness of stating the Case, or of petulency of speech in handling the Matter; yet I am exempt from such fear in the publishing this modest and sober Treatise, by reason the stating of the Case as here set down, is acknowledged to be true by both Parties to the Controversy; and for that there is not so much as a word of offence given in the style of the Author, nor any lose intemperancy of speech used therein, he speaking nothing else but what falls directly under the consideration of the Subject, as fit to be determined by the precise decision of Law.  
Nor do I design to present this, as a matter of Curiosity to the Reader, though the matter of Fact be de rarò contingentibus; nor to present unto the Lady Objècts of Terror, to frighten her with guilty Apprehensions, or to tax her with the polluted mystery of a Matrimonial-Bed, or the stain of Unchaste Extravagancies; or to convene her before the great Judge of Heaven and Earth, who is so formidable to the sense of Gild; or to upbraid her with the inevitable Consequences of her Ruin, which will ensue her Temerity without Repentance: but to satisfy all Parties concerned, and even the whole World, in the Justice and Reason of the Lord Decies his Case, sufficient to enforce the belief thereof unresistible, even upon the most prevaricated Understandings. For your Lordship will not find in the Author's discourse an umbrage of Rhetorical Flourishes, but a breviary of such Arguments and Authorities as are of force to sway the points in controversy, and to turn the Objections out of all Laws into Arguments to persuade the contrary; insomuch, that the said Doctor's Allegations are so luculent, that words of Authors could not, by Invention itself have been put in order, more for our advantage; nor could Imagination frame a Conception of words more to the proof and approbation of our Cause, than are the said Doctor's most authentic Allegations, being Authorities too clear to be denied or eluded, leaving no place to contrary Exposition, and giving countenance with Reason to whatsoever he proposes to be believed.  
Furthermore, he clears the Text from the disparagement of vain Cavils, the misinterpretations of impertinent Glosses, and confutes the Lord Cook, not only by the incompetency of his Authority, being neither Judge of, nor versed in Matrimonial Causes, but also by the inevitable Deductions from his mistaken Positions.  
And finally, the said Doctor lays down such Principles, to beat out a path to the decision of the Cause in behalf of the Lord of Decies, as that Judgement cannot be given in favour of Mr. Villiers without a manifest decadency from ancient practice, and deviation from all known Rules of Justice (as is generally conceived) whereby it is hoped that the Lady upon consideration and reflection on the many Prejudices of her Seduction hitherto, and the Conviction of this Argument will be reduced to the modest acknowledgement of her fault; which is my earnest desire, who upon many Obligations am bound not only to wish her happiness, (as I do from the bottom of my heart) but by my best Endeavours to argue the sincerity of my real Respects to her, from whence the Publication hereof chief proceeds, and to remain in the profession I now make to continue during my Life,  
Your Lordship's most humble, faithful, and devoted Servant, R. P.   

JOHN Lord DECIES of the Age of eight Years, was married by the Archbishop of Canterbury to Katherine Fitz-Gerald, (with the consent of her then Guardian) having completed twelve years and a half of her Age; She about one and twenty months after the said Marriage, disagreed to the same, and on Easter-Eve last took to her pretended Husband Edward Villiers, Esq the said Lord Decies being yet alive, notwithstanding the Inhibitions of the Court of Arches.  

QUAERE.  
Whether she could avoid the first Marriage with the said Lord Decies, or make Reclamation thereof?   

ANSWER.  
I Conceive the Law to be so clear in the Case above stated, that there cannot arise any considerable difficulty among the Learned in resolving the Quaere thereupon propounded; Yet that the Resolution thereof may be the clearer, and the more satisfactory to the understanding of all those who are or may be concerned in the same, I shall bring it under the determination of a more general Question, stated with such Distinctions, Limitations, and Specifications, as will not only explicitly resolve the same, but also answer and prevent such Objections as may arise out of some confused Notions and Allegations that may be produced against the Negative Resolution of the said Quaere.  
The Question therefore is thus generally propounded, Whether and when those who contract Marriage, may departed therefrom by Reclamation?  
Whereunto I answer; That either such Contract hath already passed into a Marriage, or in vim Matrimonii de praesenti; either by present Consent, or by Carnal Knowledge subsequent: in which case there is no departure therefrom by way of Reclamation.  
Or such Contract hath not as yet passed in vim Matrimonii de praesenti, and then first both Parties are at age of Consent, to wit, the Man hath attained the age of fourteen years; or, secondly, both of them are under those respective ages; or, thirdly, the one of them hath attained that age and not the other.  
In the first Case of this tripartite Subdistinction, where both Parties are at age of Consent, the one Party cannot lawfully departed from the Contract without the consent of both.  
In the second Case of the said Distinction, to wit, both being under Age at the time of the Contract; it is to be understood whether both, or one only of them will reclaim before either of them attain to the competent age of Marriage: And I conceive they cannot, whether they be equally distant from the said competent Age; (as for example, He is Twelve years old, and she Ten; or unequally distant, he being Thirteen and she Ten:) or whether both, or either of them will reclaim after the arrival of both at competent Age as aforesaid; And at this time arriving together at competent Age they may reclaim, as when at the time of the Contract of Marriage they were both equally distant from the Age competent at a different time, when one arrived at the Age before the other, having been unequally distant from a competent Age of plenary Consent at the time of the Contract: or both, or either of them reclaims some time after the Accomplishment of years competent for Marriage, and then they cannot, whether both of them arrive thereunto at the same time, or at divers times; as when the Man was Thirteen years of age, and the Woman Ten, the Man being by the revolution of a Year arrived at that competent Age aforesaid, who then may reclaim, or thank himself for the loss of that benefit; So that when they are of different ages from the time of plenary Consent, it is in the pleasure of the Party who first comes to Age, to dissolve the Contract by Reclamation, which if he shall not then do, this Power is devolved to that Party who shall be then under Age.  
As to the third Case of the Distinction, where one of them hath attained the age of plenary Consent at the time of the Contract, and not the other; the Party that hath so attained that age at the time of the Contract may not reclaim; but the Party who was then under that age, and now hath attained it, may make Reclamation. So when one of Age contracts with one under Age, the Contract is immediately good as to both, and each of them bound to expect until the younger comes of Age, who if he then make Reclamation, the Contract of Marriage is dissolved; but if he shall not reclaim, they shall be compelled by the Church to prosecute the Contract.  
I having thus set down the first Principles which relate to the Controversy, and are of greatest importance to the determination thereof, I shall now apply myself more particularly to the very Case, and in the first place allege out of the Decretals de Dispon. Impub. Cap. de illis §. Mulier autem, where it is said, Mulier autem quae postquam annos Nubiles attingit, ei qui nondum ad annos aptos Matrimonio venerat, nupsit, cum in eum semel consenserit, amplius non poterit dissentire, nisi ipse cui nupsit, in eam suum negaverit praestare consensum. And though the Gloss may seem to derogate from the Text, seeming like the Gloss of Orleans, which, as hath been said, corrupts the Text; yet I conceive that the Gloss upon the words, semel consenserit, having set forth quod multi contractus claudicant, & ex una parte possunt tenere, & ex altera non; and adding afterwards a diversity by the word, Secus there subjoined, where he saith, Secus in Matrimonio, quia illud vinculum non potest constare nisi ex duobus consensibus, doth not prejudice the Lord of Decies his Case: for he was at the time of the Marriage capable of giving a Consent, being then of above Seven years of age, which he cannot recall until he come to the age of Fourteen, and will continue; unless he then, or immediately after disclaim the same; whence Dominus Abbas saith, Si alter pubes, & alter impubes, & impubes reclamat, non auditur ante aetatem Legitimam, si autem pubes reclamat, non auditur, ex quo semel consensit, & sic diffiniunt high §. quicquid dicat Glossa, either derogating from the Authority of the Gloss, or putting such reasonable Sense thereon, as may reconcile it to the Text, by his diffiniunt, quicquid dicat Glossa, which is as much as to say, This Gloss doth not hinder, but that Judgement may be given, notwithstanding the same, to reject the Reclamation of the party who was at age at the time of the Contract. And as for the words of the Reason given by the Gloss, quia illud vinculum non potest constare nisi ex duobus consensibus, I conceive that the word Constare bears the sense of the word Consistere, as it doth in Pandects, L. 68 & L. 98. in fi. de Solut. So that the sense of the whole clause is, That such Marriage cannot consist or continue, without the consent of the Minor be continued when he comes of age.  
And as to the Authority of the Gloss, it hath always been held in great veneration, in so much that it hath been called Juris Idolum. Sallicetus said, that we ought, adhaerere Authoritati Glossae, sicut Bononienses Carotio, & sicut ducens navem inhaeret temoni; Nay further, Antonius Cursetus saith, de Authoritate Glossae, illam omnibus Doctoribus antecellere; yet in limitation of his words, and explication of what honour hath been attributed to the Gloss by the former Quotations, he subjoineth these words, Scilicet Glossae Authoritatem antecellere, hoc est, singulis partitiuè, non simul sumptis.  
Moreover, I confess that in the decisiones Parliamenti Delphin. quaest. 39 set forth by Guido Papae, termed Excellentissimus Juris utriusque Monarcha, it is said, Opinio Glossae magnae est Authoritatis; but it is, as there set forth, Ubi corroborata est communi Doctorum Opinion; for the Gloss never prevails against the common Opinion, or the express Determination of the Text, though in causae arbitralis definitione, the Opinion of the Gloss is allowed, as it was in a Judgement in a Court of Parliament of the Dolphinat 1453, and in the year 1456, in a Cause there depending between Claudius Constanus and one Boccagius: whence it is, that Johannes Calvinus the Civilian, alias Kahel Wateranus ad vocabulum; Glossa, saith, quotidie, & in Scholis, & in Judiciis, Glossas impugnari refelliquè videmus, nisi enim vel jure, vel rationibus funditùs nitatur, & à textu non dissideat, minimè sequenda; nam ubi Textus expressi sunt, ibi nulla est dubitatio, nec ad Glossam respiciendum: But that the Cap. de illis, is express, plain, and clear, being written from Alexander the third to the Bishop of Bath, will be hereafter proved by the Testimony of Marchantius in his Answer to a Question upon the very like Case with Ours. In the mean time let it be observed, that the Cap. de illis, being written by the said Alexander, and directed to the Bishop of Bath, must needs be taken to be Law in England. Baldus delivers the same Doctrine in L. Ancillae, C. de Furt. Nam Doctrina Glossae nullam nobis necessitatem imponit, cum sit tantum probabilis ut dic. Bartholus. L. 1. ff. si certe pet. The said Kahel adds further, Quod autem vulgo jactatur, quod in Judicando à Glossa recedi non debeat, id non esse verum post Abbatem Zasius inculcat, caeterum ubi textibus destituimur, tùm Glossae authoritas minimè contemnenda est, qua de re latè disserit Nevizanus in Sylva Nuptiali. And in this sense Jacobus Butrigarius and Baldus are to be understood, when they seem to magnify the Gloss.  
And it is also to be considered, that the Gloss is many times mistaken as to the understanding of the Law; as for example, L. 1. in prin. Fi. uti possidetis, saying, that utile interdictum was therefore granted unto a usu fructuarii, because there is only considered a quasi possessioni: for the best Lawyers say, that as a Propriety is separated from a Possession, which indeed is a part of Dominion, and therefore it was improperly said by the Glossary, That a usu fructuarii did quasi possidere, viz. L. permisceri, de acq. poss. & Barth. in L. naturaliter in prin. Feod. & ibi; Jas. Num. 18. Whereby it appears the remedy of that Interdict is not granted to a usu fructuarii in respect of a quasi possession, but inspectâ vera possessione, wherein the usus fruit is, if there happen to be any disturbance.  
Again, Jacobus Menochius under the title De Retinenda Possessione, saith, that Accursius, as famous a Glossary as Johannes Andreas, is guilty of a very great error in his Interpretation of L. 1. ff. Utrubi, and of the Rubric of the Code, uti poss. and that his Gloss is to be exploded, and himself to be derided, forasmuch as he declares this to be the difference between the Inscriptions, Uti possidetis, & utrubis, scilicet, that Utrubi should refer to an improper possession of Movables, and uti possidetis to a proper Possession; for besides this, that it is the common Opinion, that the Possession of Movables is a proper Possession; it may manifestly be proved from the said first Law of the ff. Utrubi, and the Paragraph Retinend. inst. de interdictis, whilst Ulpian and Justinian call it Possessionem Mobilium: which Appellation in ambiguis ad sermonis proprietatem referri debet. Besides, a usus fruct. being pars dominii, it cannot be properly said usum fructum possideri. Wherefore Menochius de Retinend. poss. remed. 3. n. 245. declareth, Nec hic ego probo sensum Glossae. And the Gloss in many instances is rejected by Baldus, Bartholus, Salicetus, etc. as you may see further in Menochius de Retinend. poss. remed. 3. n. 37. and in Mascardus sub tit. Glossae. From whence it is that Abaspelqueda tit. de Poenitentia dist. 6. n. 107. saith, that the Gloss is false, for two Reasons; first, for declaring that to be Law, quod nullo Jure cavetur: whence I may forcibly infer with more Reason, his Temerity in declaring himself in this point contradictory to what Jure cavetur, if he be to be understood, if the Gloss were to be understood of persons of above seven years of age. Secondly, for concluding against Custom; for Consuetudo est optima Legum interpres: Cap. cumdilect. de Consuetud. L. minime. ff. de Leg. For if the Gloss on the aforesaid Cap. de illis, is to be understood against the Text, and the common Opinion, it is also against Custom: for Martinus Abaspilqueda de poenitentia didst 6. n. 107. declares, Non est Textus illius sensus quem Glossa judicat, nec obstat Glossa quia Textu decepta; so that it is not the Authority of the Gloss that can decry, or bring into credit any Tenet against the Text, or the opinion of the Doctors. This therefore being the common Opinion in this Case debated, appears by the Rosella Casuum fo. 404. n. 6. for these are the very words of the Rosella; Nota secundum communem Doctorum Opinionem in dict. Cap. de illis de dispons. impub. quod Contractis Sponsalibus inter unum puberem & aliam impuberem, impubes cum per venerit ad pubertatem, potest contradicere, pubes autem qui consensit, non potest ullo modo contradicere; for which Reason the Propinquity arising ex Matrimonio hujusmodi rato, non consummato, is not restrained by the Council of Trent to the first degree, as is the Justitia Publicae honestatis, but remains an impediment usque ad quartum gradum equally, as doth the Affinity of Marriage consummate according to the definition of Pius Quintus in the Extravagant ad Romanum; Contrahitur enim affinitas per Matrimonium per verba de praesenti ante copulam ratione societatis Conjugalis, as saith Cosmus Pistoriensis, cap. 12 de Impedimentis Consanguinitatis. And if it shall be objected, that the propinquity arising ex Matrimonio rato, seems rather to belong ad justitiam publicae honestatis, for that it is not contracted per copulam. I answer, that a far greater Bond is contracted, and of a far different kind from that of Sponsalia; for in Matrimonio rato, such as this is, traditur facultas corporum ad eandem copulam per quam Conjuges dicuntur una caro: for if Affinity be contracted by a Marriage per verba de praesenti ante copulam, as hath been said before; it followeth that they are made una caro ratione societatis conjugalis ante copulam; for it is neither the copula, nor the present hability ad copulam, that is always requisite for the continuance of Marriage; nor doth the want of such Copula, or of hability thereunto, set the other party at liberty. For the Exception of Impotency, which is an impediment to Marriage, requires three years' experiment after Marriage before a Divorce can be sued à vinculo Matrimonii; for Nuptias non Concubitus, sed Consensus facit. And it is certain that a temporal Impotency is no diremption of Matrimony; nor doth a Disease qui reddit hominem inhabilem multos annos ad copulam, dirimere Matrimonium. Vid. Henric. L. 12. Cap. 7. n. 1. Zanches. L. 7. d. 104. n. 10. And to conclude this Point, Cosmus Philiarchus de Matrimonio, p. 302. In Matrimonio rato traditur facultas corporum ad eandem copulam, per quam etiam Conjuges dicuntur fieri una caro. Which Doctrine is allowed by the Casuists, who say, that Sponsalia ab uno impubere alter àque impubere Contracta, sunt partim rata, partim suspensa; Rata, quia durante ea minori aetate resilire non possunt: Non Rata autem & suspensa, quia, quamprimum impubes factus est pubes vel resilire, vel sponsalia ratificare debet, seu expressè seu tacitè, Pubes autem qui cum impubere contraxit contractui stare debet, si alter velit. And it is also the opinion of the Casuists, that the Law of those Countries which grant power unto a Minor adeptâ pubertate to make Reclamation, doth only free them à compulsione fori externi, and not from the obligation in foro Conscientiae; for certainly, as Zanches says, it would be a ridiculous thing in Conscience to think, and altogether dissonant to Reason to believe, that the Sponsalia of one under Age should be valid under Age, and yet not oblige at all at the accomplishment of years fit for consummation of Marriage; nay, the Casuists are so strict in that case, that even where the Sponsalia are but de futuro, they enjoin Penance to the Party reclamant, de fide mentitâ. vid. Panormitan ad Cap. si inter.  
But as to Sponsalia per verba de praesenti, they are improperly so called, in respect of the Bond of Marriage, but in regard of the Execution of Matrimony: for Panormitan saith ibidem, Uterque spondet in futurum respectu executionis, sed respectu vinculi promittit de praesenti: for which Reason Divus Severus & Antoninus in their Rescripts have declared, Neque Matrimonium qualecunque nec spem Matrimonii violari permittitur, & Dispositio, (loquens de Matrimonio) verificatur in eo quod de praesenti contractu est, licet non sit copula secuta.  
It is also worthy of observation, that the Canons which rule this Case are more favourable to Marriage than to the profession of Religion or Testaments, insomuch that at Seven years of age Matrimony may be valid quoad Obligationem Matrimonii, though the Parties who make profession must be complete Sixteen years of age, and the persons who make a Testament must be Fourteen: and the Reason is too clear in the Lady's Practice, Quia natura magis & citius inclinat ad Nuptias quam ad alios actus politicos vel prudentes; and therefore the Law doth expressly make irrit the profession of Religion and Testaments made before the respective periods of Sixteen and Fourteen years, though in Marriage the anticipation of Seven years doth not invalidate Espousals, or Marriage, quando malitia supplet aetatem. And agreeable unto this Doctrine is the Case set down in Aurea Armilla sub vocabulo, Sponsalia, N. 11. Two contracted Marriage being of unequal Age, the one being Eighteen years old, the other under the Age of Marriage, were within the degrees of Consanguinity prohibited, it was therefore unlawful for them to consummate Marriage without a Dispensation: yet the elder of the two was forced to sue out a Dispensation, thereby to enable him to keep the faith of his Contract, and afterwards was compelled to consummate the Marriage; nay he was bound, saith Panormitan, facere quid possit ut Dispensationem haberet à Superiore.  
I cannot forget to mention in Codice Legum Wysegothorum, Lib. 3. tit. 4. de Adulteriis, 2. antiq. pa. 71. printed at Paris; Si inter Sponsum et Sponsae Parents, aut cum ipsa forsitan muliere, quae in suo consistit arbitrio, sicut consuetudo est, ante testes facto placito de future conjugio aut cum parentibus ejus quibus Lex potestatem tribuit, facta fuerit definitio & postea puella vel mulier Adulterium commisisse detegatur, aut alteri fortassè viro se despondisse, vel in conjugio sociasse probatur unà cum Adultero sive injusto marito vel sponso illicito, quem sibi contra priorem definitionem sociare presumpsit, in potestate prioris tradantur Sponsi cum rebus suis omnibus servituri, idest, tam mulier ipsa scelerata quam vir ille, qui illam Adulter asse vel Sponsasse, vel in conjugio sibi sociasse dignoscitur; in potestate illius cui primum praedicta mulier pacta fuerat servituri tradantur, vel de his quod voluerit faciendi habeat potestatem. And to conclude this point of the Gloss, there is a Censure thereupon, wherein are expressed many hundreds of Errors, with an intimation of a more accurate and fuller Repurgation thereof from many pernicious Errors: which Censure was published by Thomas Manricus, Master of the Apostolical Palace, anno 1575.; after which (saith he) multa in Glossis intacta reliquimus non ideo quod ut vitiosa non sint: whereby it is to be understood how little Authenticity there is in the Gloss, especially where it is against a clear Text, as we have proved, Caput de illis, to be; or contra communem Opinionem Doctorum, which impugn the Gloss in this behalf.  
The next Objection considerable ariseth out of the Decisiones Rotae; which is indeed more in sound of words, than can be justified or upheld by the Authorities alleged for support thereof: for Opinio Doctorum debet intelligi secandum jura quae allegant, 
Johannes Gutierres repet. §. sui n. 112. vid. Bartholum in L. non solum. §. si liberationes verba, n. 7. ff. de liberat. legate.  the words of the Decision 450 are the contrary of what is above set forth in the said Paragraph, Mulier autem, and therefore emphatical enough against us in sound, though not in weight of Authority: For let us examine the Allegations on which they ground their Opinion, and we shall find that they make nothing against us, and do not in the least justify the said Doctors, unless they restrain the generality of their words according to the distinction I have above expressed of the Minor being above or under Seven years of age: if they speak in this their Assertion of a Minor under Seven years, I shall not impugn their Opinion, for it is out of the Case of the Lord of Decies, he being at the time of the Marriage above the age of Seven years; but if they speak of a Minor above Seven years, none of the Authorities which they allege will reach to the maintenance of their Assertion; for they quote but two Authorities, that is to say the Caput literas, and the Caput accessit de Despons. impub. both which expressly state the Case of Minors under Seven years, and accordingly resolve the same: for the Caput literas states the Case of a Minor in Cunabulis thus; Cum quidam esset perfectae aetatis quandam puellam in cunabulis desponsavit, procedente verò tempore, matrem puellae cognovit, & eam in uxorem accepit. And the Resolution there is; Si praefatus vir matrem puellae, antequam Septimum annum complêsset, in uxorem accepit, matrimonium non dissolvas, cùm desponsationes hujusmodi nullae sunt, quae in cunabulis fiunt. This Case differs in two things from ours, for the Minor was in Cunabulis, and therefore the first Contract was void; and though the Minor could not in that case, coming to seven years of age, obtain the Man by reason of Affinity contracted by the second Marriage, yet the Mother was divorced; which shows that the second Marriage, not only in case of a Minor, being above seven years of age, but after, being under seven years, and afterwards arriving at Seven, and then consenting, is invalid; for which Reason the Man was divorced from the second Wife, though not restored to the Minor, by reason only of the impediment of Affinity contracted: nay had the second Wife been of a remoter degree to the first, neither Marriage could have subsisted by the Law of the Church of Rome: not the first, propter impedimentum Affinitatis; or the second, propter impedimentum Justitiae publicae honestatis. And as for the Caput accessit, it states the Case, and resolves it to the same purpose; So that 450 Decision of the Rota Romana can make nothing against the Lord of Decies in this Case, unless the said Rota had power to repeal the Rule of Logic, which prohibits the Inference of a Generality from a Particular. Again, It is in the Case of Doctors and Judges giving their Opinion, as it is with Witnesses rendering a Reason for their Deposition, wherein there is dictum, and the ratio dicti: if the Dictum be inconcludent, and the Reason thereunto annexed be valid, the Dictum is made valid by the validity of the Reason; but on the contrary, the Dictum is not valid, if the Reason thereunto subjoined be not conclusive; as for example: If the Witness should depose thus: It is true, Titius did lend one hundred pounds to Seius, because I heard it so reported: Upon this ground his Testimony would be invalid, by the failer of his Reason in point of Argument; and it is as easy to determine, that the Allegations of the Rota, being incompetent to prove their Assertion, the same must fail; for, quod inest termino referenti, intelligitur inesse termino, ad quem est facta relatio. Hence it is that Navarrus de Despons. Impub. n. 4. saith Nicholas Papa relatus à Gratiano, ex illa Clausula integra [ubi non est consensus, ibi non est conjugium] solum infert quod pueri in cunabulis existentes non possunt contrahere Matrimonium, & ita mens ejus fuit dicere, quod consensus infantilis non sufficit, quod omnes fatentur; and herewith agreeth the Civil Law, L. in Sponsalibus: ff. de Sponsalibus, where it is said, That Marriage is validly contracted, si personae non sunt minores septem annis.  
There is one Objection more I would obviate, which is this; That Fornicatio est dissolutio Sponsalium. To which I answer; That true it is that Fornicatio, is, Solutio Matrimonii, but such a Solution as doth not depend upon the will of the Nocent party, but on the Consent of the Innocent; for (say the Canonists) Fornicatio ad Solutionem Matrimonii non pendet ex illo cujus est culpa sed ex alterius consensu.  
There rests yet one Objection more which now comes into my mind, which is taken from the cap. si inter. paragrapho, si vero inter; grounded upon these words, Matrimonium consummatum fortius vinculum est matrimonio rato, (and that) inter vincula inaequalia fortius, & si posterius vincit: But these words being rightly understood, do not reach to our case; for that Paragraph is in case where the Sponsalia were de futuro, & non per verba de praesenti; and it is rashness from a special Case there defined, to collect this general Rule, which is severely reprobated by Bartholus and Ledesma dubio 13 de Matrim. casu 2. for, as we said before, Sponsalia per verba de praesenti, are improperly so called, respectu vinculi matrimonii, sed respectu executionis matrimonii: for Panormitan ad dictum, Caput si inter, saith, Uterque spondet in futurum respectu executionis sed respectu vinculi promittit de praesenti: And though it hath been said, that the Marriage of Persons under Age are reputed as Sponsalia de futuro, yet this is to be understood respectu executionis, non respectu vinculi; so that in our Case the Vinculum, and the Execution may depend upon the Consent of the Lord of Decies when he comes to Age; but the Lady is indissolubly tied ratione vinculi, being above Twelve years when she was married to the Lord of Decies, and may be compelled to consummate the same Marriage, and the rather, for that the second pretended Marriage was contrary to the Inhibition of the Church, and therefore could not be so valid or capable of the privileges of the first, according to the practice and precedent of the Court of Arches in England, viz. Clerks practice, tit. 200. But further, both parties to the second Marriage are to be punished and corrected, as you may see in the said Clerks practice, tit. 199. de puniendis personis solemnisantibus vel contrahentibus matrimonium lite pendente ac contra inhibitionem Judicis;— And for that the Sponsalia celebrated between her and the Lord Decies could not have been dissolved but by the Judges Ecclesiastical; Again, we say, that quod vinculum matrimonii, matrimonium ratum & consummatum, are of equal force; and that so often as two incompassible bonds of equal force are contracted, the first prejudiceth the second; and therefore it is, that frangentes Sponsalia jubentur cogi censura Ecclesiastica ab Alexandro, 3. C. ex libris Sylvani de Sponsalibus & C. praeterea: eod. tit. That is to say, they who violated such Espousals, are commanded by Alexander the third by Ecclesiastical Censures to performance. And where it is said, that Matrimonium consummatum fortius est vinculum; it is to be understood, as we said before, in the Comparison between Matrimonium consummatum, and Sponsalia per verba de futuro.  
Having thus fully answered the aforesaid Objections, I shall clear a mistake of some upon the Statute of Henry the eighth concerning Marriages: For though in the said Statute it be enacted, that the second Marriage consummate with fruit of Issue be to be approved of before any Marriage unconsummate, yet the said Statute was repealed in the time of Edward the sixth, and did not recover strength by the Statute of 1. Eliz. in England, or 2. Eliz. in Ireland, save only as to the degrees of Consanguinity, mentioned in the said respective Statutes of Queen Elizabeth.  
I am to clear also another mistake of those who insist so much upon reciprocation of Contracts in matters of Marriage; as if the inequality of Conditions in a Contract could not stand with reciprocation thereof; as for example: Titius sells his Horse to Seius, and delivers the Horse, the other receives the money; yet, if in the Contract there be a clause of Retrovendition, there is a reciprocation of Contract, though the Seller may have the Horse back again by virtue of that clause: Even so, though the Law implies the condition of Reclamation, yet the Contract is good and reciprocal until such Reclamation be made.  
By what hath been premised it clearly followeth in the vigour of good Consequence, how great a difference, and different effects there are between the pusilage of one contracting Marriage under Seven years, and the minority of one contracting above Seven years: for in the first Case, the Justice of public Decency and Honesty (as the Canonists term it) takes no place; but in the latter Case, there ariseth impedimentum publicae honestatis sufficient for Diremption of Marriage; so that upon dissolution of Marriage by dissent at twelve or fourteen years respectively, the party dissenting cannot lawfully marry by the Canon Law with the Kindred relating to the other party within the degrees prohibited. And the Reason is, because that if he be under seven years he hath no consent to bind him, but if he had completed seven years, he had a consent. And for the same Reason, if a Male under seven years marry with one of Age, the elder shall not be bound; but if the Male be above seven years of Age, and the Female twelve, she shall be bound, though the Male hath his liberty to stand to, or departed from the Marriage: And therefore saith that celebrated Doctor, and famous Glossary, Petrus de Anchorano on the sixth Cap. si Infants de despons. impub. Nota quod quandoque contrabit sponsalia Infans cum majore Infante, quo casu, si non oritur ex parte Infantis, Justitia publicae honestatis, non oritur ex altera parte, secus si Sponsalia contrahat pubes cum impubere majore septennio. Observe his Reason, quia pubes efficaciter obligatur, impubes verò potest per poenitentiam resilire.  

Observe a former decision of the Case.  Furthermore, To show that Decisions of this Controversy in favour of my Lord of Decies are not wanting, harken to the words of Panormitan, Cap. ex literis de despons. impub. Deciditur (saith he) quoth major non potest dissentire, sed minor factus major: whence he concludes, that Major contrahens cum minore tenetur expectare minorem donec perveniat ad aetatem legitimam.  
Although what hath been said is sufficient to establish this Assertion upon an authentic Foundation, yet out of the Springtide of Legal Proofs I shall at this time, out of a greater number (which for want of time I cannot now insist upon) bring in the concurrence of other Authors, as well Casuists as Canonists, without any unnecessary enlargement, to show further the Consent of Common Opinion in this behalf;  
And first I begin with Dominus Cataneus, vocabulo Sponsalia p. 416. qui legitima celebravit sponsalia; tenetur sub reatu laethalis criminis procedere ad solemnizationem Matrimonii in fancy Ecclesiae.  
Hostiensis de desp. impub. n. 11. Sin autem pubes cum impubere contraxit, tenetur pubes expectare donec impubes veniat ad legitimos annos, ligatur enim adeo pubes quod non potest reprobare semel probatum, minor tamen veniens ad annos legitimos si non consenserit poterit resilire; (and thereafter) cum enim semel consenserit pubes, scilicet per verba de praesenti. The Reason is this; Pubes fortius obligatur quâm impubes, quia maturioris consilii est, plerunque enim aetas impuberis quod videat, ignonat, & sciens, fallere non videatur. Wherefore let no Man wonder at the Reason why the Lady should be more obliged than the Lord of Decies, whilst he hath a power reserved to himself of dissenting. Summa Armilla sub vocabulo, sponsalia, Impubes cum pervenerit ad aetatem debitam potest contradicere, pubes autem nunquam.  
Boych saith thus: Extra, de Despons. & Matr. Cap. perquisivit, quoting Gofridus in summa tit. eod. Indistinctê pubes dissentiens cogi debet ad celebrandum: Whence it follows, that notwithstanding the pretended second Marriage, the Lady Decies is compellable to restitution to the Lord Decies.  
Arnoldus Corvinus Juris Canonici lib. 2. tit. 12. Contrahere sponsalia possunt omnes tâm puberes, quàm impuberes qui septennium excesserunt. C. accessit 5. the despons. impub. quia voluntas quae in naturali consensu quiescit, in eos, qui septem annorum complêrunt aetatem, cadit; L. si Infanti 18. §. ult. & L. potuit. 5. C. de Jure de lib. Ante si contraxerint post septimum annum legitimo consensu, C. duo pueri, 12. & ibi Abb. eod. vel cohabitatione. C. literas 4. §. fin. C. accessit. 5. versi consensus. C. duo pueri 12. eod. vel nixu ad coitum. C. juvenis 3. hic. C. fraternitati 7. de eo qui cogn. cons. accedente convalescunt.  
Marchantius de Matrim. respons. ad 2. quaest. Respondeo ad secundum: Dominam A. B. contrahentem post annos pubertatis cum Domino, C. D. impubere sive ante pubertatem C. D. sive post permanente consensu C. D. non posse reclamare vel resilire: Est textus planus & apertus. C. de illis de desp. impub. quod est Alexandri tertii ad Bathoniensum Episcopum, ubi sic habetur; Mulier autem quae postquam annos nubiles attingit, ei, qui nondum ad annos aptos Matrimonio venerat, nupsit, cum in eum semel consenserit, amplius non poterit dissentire, nisi ipse cui nupsit, postquam ad legitimam aetatem pervenerit, in eam suum negaverit praestare consensum: sed in proposito casu Domina A. B. postquam annos nubiles attigisset, nupsit Domino C. D. qui nec dum ad annos aptos Matrimonio provenerat: ergo non potest amplius dissentire ex parte sua, nisi Dominus C.D. ipse resiliat: Ratio autem cur puberibus potestas resiliendi non concedatur, sed solum impuberibus est, quiâ pubes censetur habere plenam perfectamque aetatem & prudentiam ad deliberandum, non sic vero impubes qui cum eo tempore quo ducit, non sit aptus Matrimonio & Generationi, ejus consensus datus ante pubertatem non censetur perfectus, nisi vel ratificetur post pubertatem adeptam, vel saltem perseverare censetur; Quam rationem eximpubere Judicat. C. de illis, supra citatum. Corporis sui ad generationem, censetur quidem modo illam dare, ita tamen ut plena possessio tantum pro tempore quo erat aptus generationi accipiatur.  
Henricus Boych in tertio Casu, scilicet, Quando alter contrahentium Spónsalia est pubes & alter impubes refert. Aut quaeris utrum ille qui erat pubes tempore sponsaliorum possit reclamare: & dic quod non, ut hic, in §. Mulier autem, aut ille qui erat impubes: Nunc verò factus pubes: & dic, quod sic: dummodo in eo tempore quo pubescit vel incontinenti post reclamaverit: ut in Paragrapho allegant, si vero, unde quando pubes cum impubere contrahit, statim tenent Sponsalia quoad utrumque, & uterque expectare tenetur quo usque impubes ad pubertatem perveniat, & tunc si reclamat, solvuntur sponsalia, si non reclamaverit, ab Ecclesia contrahere compelluntur.  
It may now appear out of the aforegoing discourse to the full satisfaction of all persons, whose Interest will give them leave to comply with Reason and Authority, the greatest Patron of Belief, that the particulars of the subsequent Recapitulation of the Premises are most true: Viz.  

1. That the Lord of Decies (as represented in the foregoing Case) is so far obliged by the Marriage had and solemnised in fancy Ecclesiae by the Archbishop of Canterbury, that he cannot make Reclamation thereof before he shall attain to the age of Fourteen years.  
2. That the Lady being above Twelve years of age at the time of the Marriage so solemnised, as aforesaid, could not either in Law or Conscience, neither can she hereafter reclaim, or departed from the said Marriage, until Reclamation be made by the said Lord of Decies at his age of Fourteen years: wherefore there is no Reason she, being of Age at the time of the Contract, should be at her own disposal, whilst he is bound not to dispose of himself.  
3. That the Lady Decies in Conscience in bound, and by Law may be compelled to cohabit with the said Lord of Decies, if he shall think fit to associate himself at his age of Fourteen.  
4. That she ought to have been sequestered, and still should be sequestered pendente lite, which undoubtedly the Judges will do upon due requisition.  
5. That no Marriage against the particular Inhibition of the Church ought to be privileged, or to prejudice a former Marriage lawfully solemnised.  
6. That the Consequence of allowing the Lady Decies to continue in Cohabitation with Mr. Villiers would be extremely injurious to my Lord of Decies, and a pernicious example and effect to the Public.   
For which Reasons it is hoped, that no Man, who was not a Counsellor in the Design of the second Marriage, will approve of it in the post fact, or will think that it is to be countenanced under the umbrage of a fieri non debet, sed factum valet: for that sentence of Law, though in some Cases it might make good that which was otherwise unlawful, yet it doth not hold to the prejudice of a third person; nor can it make that void, which in itself is indissoluble and cannot consist therewith, unless priority of Contract should yield to posteriority; or the Law 1. Eliz. concerning Marriages were Repealed.  
Dated the 30th of Octob. 1676. Dud. Loftus.