Christian Economy, Treatise · Chapter 7
CHAP. 7.
Of Reiection, or Refusall of the Contract.
COntrary to a complete and lawful cōtract,Repudium. is Reiection, wherby the Contract is dissolued, or broken off.
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.
The first is this. What is to be done, when some disease befals 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 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 hauehave 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.
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 hauehave commanded it, though the promise was formerlie made, & the parties themselues should be vnwilling. God hath ordained Matrimonie 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 vntounto 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 vntounto 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.
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 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 hauehave no hope mutually to conuerse together, with comfort & contentment, while they so remaine.
VponUpon 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 hauehave begun, and in probability the one hauehave 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.
Furthermore, though one of them should hauehave 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, or dumbe, &c. yet this is not a sufficient cause to moue them to renounce, and dissolue 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 vponupon the contract?
Answ. Inquirie must be made, whether this absence be voluntarie, or against the will of the partie.
If it be voluntarie. For example; if the man vponupon 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 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 againe, the man or woman shall vponupon 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, vponupon 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.
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 make meanes vntounto him, and expect his returne, or hauehave certaine notice of his death, before she promise, or hauehave to do with any other in way of mariage.
A third Case. What if after the contract, one of the parties becomes furious, or madde?
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, hauehave 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.