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ment is set aside, and an occasional Form appointed to be used instead thereof. I think it is fufficient in this 'Cafe, that the two Houses of Parliament have, and do own this power to be lodg’d in the Crown; as they do, by always fubmitting to these Royal Commands in observing thele Days in the manner prescrib’d by Proclamation, and sometimes petitioning the King or Queen to order these Religious Solemnities. I mean, it is sufficient to secure the Clergy man that observes such Days, and uses such Prayers, from the Censure of his Ordinary, and the Penalties of the Statute ; but it is not fufficient to lay any Obligation upon him to comply with such Impositions. See the Case of Occasional Days and Prayers.
By the aforesaid Conftitution of Archbishop Isip, every Bishop had power to command any Saint's Day, not mention'd in that Conftitution, to be folemnly observ'd within his own Diocese. But Lyndwood tells us, This must be meant only of luch Saints as had been Canonized by the Pope : Of which they have a great plenty, . one or more for every Day in the Year.
For the protection of those who observe Re. ligious Times, by frequenting the publick Wor. hip, it hath been provided, that no Priest, Clerk, or other Perfon of Holy Church, * doing Divine Service, be' Arrested. 50 Edw. III. c. 5. I Rich. II. c. 15.
This A&t is so understood, that no Perfon shall be Arrested, Eundo mo
* Bishop Gibson fupposes, that the Temporal Lawyers are mistaken in applying this Privilege to such as are not Clergymen. Code p. 11.
nando, redeundo, to, at, or from Divine Ser. vice; the Person offending may be find in the Temporal Courts, or Excommunicated, and condemn’d in Cost in the Ecclefiaftical: But then this Act protects no one against a Warrant froin a Justice, for that is for Breach of Peace, and for the King. And farther, If the Party Arrested have Abfconded, he has no Benefit by this A&t. And, after all, tho' the Bailiff be punishable, yet the Arrest is good in Law. Wats. c. 34.p. 201.
CH A P. XXI.
N order to a regular Marriage, the Banns muft
first be publilh'd in time of Divine Service, on three feveral Sundays or Holydays, by the Curate, or Curates of the Parish, or Parishes, where the Parties dwell. I have heard of fome Clergy men, who have doubted, whether they are bound to publish Banns, in case they themfelves do not fancy or approve of the Match;and I suppose the occasion of this Doubt is, that there is no Penalty by the Canons of 1602, provided for those who neglect or refuse to publish Banns, as there is for those who refuse to Christen, Bury, &c. but then there is a very severe Canon made against it in a National Synod held at London, 1208, under Cardin. Otbob. with the two Archbishops, &c. which leaves the Penalty
to the Archbishop, and calls all those that bin. der the Solemnization of Marriage, præfumptores, presumptuous Men. See Conft. Otbob. Conjugale. And farther, by Art. 32d, of the 39th, tis declared lawful for Ministers, as fou all other Chziftian weir, to Marry at their ow? Discretion : So that every Christian Man is at bis own Discretion in this Matter, as much as the Minister himself. And as every Clergy. man has subscrib'd this Doctrine, fo I suppose he is obliged to act according to it, especially, fince these Articles are authorized by Statute; and to maintain any Doctrine contrary to them is punishable by Deprivation. 13 Eliz. c. 12.
Whoever has any Objection against a Marria : age, must apply hiinself to the Ordinary, who if he fee Caufe, may send an Inhibition to the Minister, forbidding him to proceed: But if no fach Inhibition be sent, the Minister may marry. them at any lawful Time or Place : But at the. time of Marriage, when the Minister says, If any one know any juft Cause&c. then, if any one do allege any Impediment, and give Security to the Perfons to be Married to the full Damia ges they will sustain by not being Married, that.. be shall prove bis Allegation ; then the Marriage thall be deferr'd till the Cause be determin'd, or Parties agreed.
Lawful Impediments are three, viz. * 1. Precontract, when one, or both Parties, are before Married, or Pre-engaged to some other Person,
* Pre-contract foundly prov’d, dissolves Mazı trimony with any other person, tho it be cona. fummated, by Stat. 2 Edw. VI. c. 23..
by folemn mutual Promise made before several good Witnesses, and a Suit is bereupon com. menc'd in fome Ecclesiastical Court, Can, 102. 2. Confanguinity, or Affinity: To know who are too near a kin to Marry by the Laws of our Church. See the Table of Degrees, set forth by Archbishop Parker, Anno Dom. 1563, and au. thorized and enjoined to be set up in Churches, by Can. 99. 3. Want of Consent of Parents or Governors, if either Party be-under 21 Years of Age. See Can. 100. And I suppose the Cale is the fame if either of the Parties be Idiots : (for such are always Minors). And in case the Minister, after Banns publith'd, do marry Per. fons under that Age, without having the express Consent of Parents, or Guardians, he incurs Sufpenfion for three Years, by Can. 62.
Coufin.Germans are not forbid to Marry, by any Law of GOD, or Man, except the Pope's Canon Law, which is not now in force, as to this particular. See Statute 32 Hen. VIII. c. 39. And if Coufin-Germans are not prohibited, as stis certain they are not, then they who are more remotely related, cannot be under any restraint in this particular; whatever some People have Vainly fancied.
By the same Popish Canon Law, not only real Relations were forbid Marriage, but imas ginary ones; I mean any Man and Woman that had ftcod Sureties for the fame Child, or that had at the Baptizing of it laid tbeir Hands on it, in order to take it out of the Font, when it was dipped (as the Custom then wast. Nay, this extended to the Baptizator, and his Sons and Daughters, and to the Father and Mother
of the Person baptized. For it was pretended, that by this means a spiritual Affinity was con tra&ted ; so that very little regard is to be had of this Law, and by no other Law is the Marriage of Coufin-Germans forbid.
Some Parish Officers have presum'd to forbid Banns, because the Parties have been poor, and like to create Charge to the Parish, or because the Man has not been an Inhabitant, according, to the Laws made for the Settlement of the Poor. But, - No Person has Authority to forbid the Minifter to proceed in publishing the Banns, but the Ordinary only. If indeed the Minister be fully satisfied, that there be any of the three Impediments abovemention’d, he ought in reason to forbear Publication, and is liable to Censure, if he proceed to marry them; if it can be proved, that he knew the Impediment : But the Curate is not to stop his Proceeding, because any peevish or pragmatical Person, without just Reafon or Authority, pretends to forbid him. Poverty is no more an Impediment to Marriage, than Rich. es, and the Kingdoin can no more fublift without Poor, than without Rich. i And I see no reason to doubt, but that Banns may be publish'd, and Marriage be folemniz'd betwixt two Persons that do at present abide, or sojourn within a Parish, tho? they be not fixt Iuhabitants, according to ibe Afts for settling the Poor. For such Persons are Parishioners, as to the Minister, who is to visit them, if they are Sick, to give them the Sacraments whilft Living, and bury them when Dead. And they are to perform the Duty of Parishioners to him. viz. to pay him Tythes and