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ment is fet afide, and an occafional Form appointed to be ufed inftead 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 thefe Royal Commands in obferving thefe Days in the manner prefcrib'd by Proclamation, and fometimes petitioning the King or Queen to order thefe Religious Solemnities. I mean, it is fufficient to fecure the Clergy man that obferves fuch Days, and ufes fuch Prayers, from the Cenfure of his Ordinary, and the Penalties of the Statute; but it is not fufficient to lay any Obligation upon him to comply with fuch Impofitions. See the Cafe of Occafional Days and Prayers.

By the aforefaid Conftitution of Archbishop Iflip, every Bishop had power to command any Saint's Day, not mention'd in that Conftitution, to be folemnly obferv'd within his own Diocefe. But Lyndwood tells us, This must be meant only of fuch 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 obferve Re ligious Times, by frequenting the publick Worhip, it hath been provided, that no Priest, Clerk, or other Perfon of Holy Church, doing Divine Service, be Arrested. 50 Edw. III. c. 5. 1 Rich. II. c. 15. This A&t is fo underflood, that no Perfon fhall be Arrefted, Eundo mo

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rando,

* Bishop Gibson fuppofes, that the Temporal Lawyers are mistaken in applying this Privilege to fuch as are not Clergymen. Code p. II.

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nando, redeundo, to, at, or from Divine Ser vice; the Perfon offending may be fin'd in the Temporal Courts, or Excommunicated, and condemn'd in Coft in the Ecclefiaftical: But then this Act protects no one against a Warrant from a Juftice, for that is for Breach of Peace and for the King. And farther, If the Party Arrefted have Abfconded, he has no Benefit by this A&t. And, after all, tho' the Bailiff be punishable, yet the Arreft is good in Law Watf. c. 34. p. 261.

CHA P. XXI.

of MARRIAGE.

N order to a regular Marriage, the Banns muft first be publish'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 Clergymen, who have doubted, whether they are bound to publish Banns, in cafe they them felves do not fancy or approve of the Match; and I fuppofe the occafion of this Doubt is, that there is no Penalty by the Canons of 1602, provided for those who neglect or refufe to publifh Banns, as there is for those who refufe to Chriften, Bury, &c. but then there is a very fevere Canon made against it in a National Synod held at London, 1268, under Cardin. Otbob. with the two Archbishops, &c. which leaves the Penalty

to

to the Archbishop, and calls all those that binder the Solemnization of Marriage, præfumptores, prefumptuous Men. See Conft. Otbob. Conjugale. And farther, by Art. 32d, of the 39th, tis declared lawful for Minifters, as for all other Christian Pen, to Marry at their own Diferetion: So that every Chriftian Man is at bis own Difcretion in this Matter, as much as the Minifter himself. And as every Clergyman has fubfcrib'd this Doctrine, fo I fuppofe he is obliged to act according to it, efpecially, fince thefe 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 Marriage, muft apply hímfelf to the Ordinary, who, if he fee Caufe, may fend an Inhibition to the Minifter, forbidding him to proceed: But if no fach Inhibition be fent, the Minifter may marry. them at any lawful Time or Place: But at the time of Marriage, when the Minifter fays, If any one know any juft Caufe, &c. then, if any one do allege any Impediment, and give Security to the Perfons to be Married, to the full Damages they will fuftain by not being Married, thatbe fhall prove his Allegation; then the Marriage fhall be deferr'd till the Caufe 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 fome other Perfon, K 5 by

*Pre-contract foundly prov'd, diffolves Ma trimony with any other Perfon, tho' it be conse fummated, by Stat. 2 Edw. VI. c. 23..

by folemn mutual Promife made before several good Witneffes, and a Suit is bereupon commenc'd in fome Ecclefiaftical 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 authorized and enjoined to be fet up in Churches, by Can. 99. 3. Want of Confent of Parents or Governors, if either Party be under 21 Years of Age. See Can. 100. And I fuppofe the Cafe is the fame if either of the Parties be Idiots: (for fuch are always Minors). And in cafe the Minifter, after Banns publifh'd, do marry Perfons under that Age, without having the exprefs Confent 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 'tis certain they are not, then they who are more remotely related, cannot be under any restraint in this particular; whatever fome People have vainly fancied.

By the fame Popish Canon Law, not only real Relations were forbid Marriage, but imaginary ones; I mean any Man and Woman that had ftcod Sureties for the fame Child, or that had at the Baptizing of it laid their Hands on it, in order to take it out of the Font, when it was dipped (as the Cuftom then was). Nay, this extended to the Baptizator, and his Sons and Daughters, and to the Father and Mother

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of the Perfon baptized. For it was pretended, that by this means a fpiritual Affinity was contracted; fo 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 prefum'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 Perfon has Authority to forbid the Minifter to proceed in publishing the Banns, but the Ordinary only. If indeed the Minifter be fully fatisfied, that there be any of the three Impediments abovemention'd, he ought in reafon to forbear Publication, and is liable to Cenfure, 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 Perfon, without just Reason or Authority, pretends to forbid him. Poverty is no more an Impediment to Marriage, than Riches, and the Kingdom can no more fubfift without Poor, than without Rich. And I fee no reafon to doubt, but that Banns may be publish'd, and Marriage be folemniz'd betwixt two Perfons that do at prefent abide, or fojourn within a Parish, tho' they be not fixt Iuhabitants, according to the Acts for fettling the Poor. For fuch Perfons are Parishioners, as to the Minifter, who is to vifit 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

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