loosed from the law of her husband by his death, it shall thenceforth bind her, because she then becometh sui juris: I say, this maketh no difference at all in the Case; for this is a general Rule, that what act soever had a nullity in it at the first, when it was done, cannot by any succeeding tract of time grow to be of force.f As if a young Scholar shall be instituted to a benefice, being not of lawful years; or a young Heir make a sale of his lands during minority, the institution and the sale, as they were both void at the beginning, so they shall continue void, as well after the Clerk is of lawful years, and the Heir at full age, as before: so that, to judge of the validity of any Vow, Promise, or Covenant, respect must be had to that very time wherein it was made, and to the present condition of the person at that time, and not to any time or condition before or after. If then there were indeed a nullity in this Gentlewoman's Vow at the time when she made it, there is a nullity in it still; and if it were indeed of no force to bind her then, neither is it of any force to bind her

now.

7. But after due pondering of the matter, I rather think, that there was not a nullity in the Promise at the first, neither, supposing it had been rightly qualified in other respects, was it void upon this ground; because although she were not sui juris absolute, it is sufficient yet that she was so quantum ad hoc. For a person that is under the power of another, hath yet power of himself, and so is sui juris, to dispose of all such things as by the free disposal whereof, the proper right of him, under whose power he is, is in no way prejudiced; but in whatsoever may be prejudicial to the other in any of his rights, he is juris alieni, neither may dispose thereof without the other's consent; and if such a person shall make a Vow or other Promise concerning any of those things wherein he is sui juris, such Vow or Promise shall stand good, and is not void (though possibly it may be vicious in other respects) from the inability of the person that maketh it. As, for example,

f Quod initio vitiosum est, non potest tractu temporis convalescere. L. 29. F. de Reg. Jur. Div. [Digest. Lib. 50. Tit. 17. Lex 29.]

g In stipulationibus id tempus

spectatur quo contrahimus. L. 18. F. eodem. [Digest. Lib. 50. Tit. 17. L. 18. Conf. Paulus, Digest. Lib. 45. Tit. 1. L. 78.]

if a servant shall promise to his own father to work with him a day or two in harvest, this Promise, unless his master consent thereunto, shall be void, because the master hath a right in the servant's work, to which right it would be prejudicial if the servant should dispose thereof after his own pleasure; but if such a servant shall promise unto his needy father to relieve him from time to time with a third or fourth part of all such wages as he shall receive for his service, this promise shall be good of itself; neither shall the master's consent be requisite to make it so, because the master hath no right at all in the servant's wages, wherein to be prejudiced by the servant's disposing thereof according to his own mind. Now, forasmuch as the husband's right and power over the wife ceaseth together with his life, as the Apostle expressly teach- Rom. vii. 2, eth, and so cannot be prejudiced by any act of the wife done 3 after his decease, it is manifest that the wife is sui juris to make a Vow or Promise during her husband's lifetime, concerning something to be done after his decease, in case she overlive him, because his right will be expired before the performance of the said Vow or Promise be due: as, to give instance in a case not much unlike to this in question, a wife estated upon her marriage in a jointure or annuity for her life of an hundred pounds per annum, maketh a promise in her husband's lifetime to one of her younger brothers that hath but short means, to allow him thenceforward out of the said estate, ten pounds yearly toward his better maintenance: this Promise is void unless the husband consent, because the performance thereof would prejudice him in that right which he hath during his own life in the revenue of all the lands and annuities estated upon the wife in reversion; but if such a wife shall promise to her said brother to allow him the said yearly sum of ten pounds after the decease of her husband in case she survive him, this Promise is good, though made by the wife in her husband's lifetime, and without his consent, because the husband's right, being so to cease before the Promise is to be performed, cannot be prejudiced by the performance thereof. And this I find agreeable to the best Casuists, whose peremptory opinion it is, that husbands and masters cannot disannul such Vows as their wives and servants make concerning things to be performed at such times as they shall

be from under their power. Which position if it be true, (and I yet see no reason why it should not), then doubtless this Gentlewoman's Vow made to her friend, though in the lifetime and without the consent of her husband, was not originally void from the inability to make it, upon this respect, that she was not sui juris so to do.

Point III.

8. But though I dare not say, neither do I think that there was a nullity in it, in respect of the person, to make it void that way, yet it cannot be denied but there was much Obliquity in it, in respect of the matter, to make it otherwise utterly unlawful. In which Point much need not be said, because the truth thereof will soon appear; for there was in it manifestly a threefold Obliquity, and thereby also a breach of three several Commandments. The first Obliquity was in respect of the unlawful affection from which it proceeded, which being placed upon another than the husband, and that in such an high degree as to produce a Promise of this kind, must needs be vicious, both for the object and for the measure; and S. Matt. v. such inordinate affection, by the analogy of our Saviour's expression of the Law, is a violation of the chastity of the heart, and so a breach of the Seventh Commandment. The second Obliquity was, the want of that true conjugal love which ought to be between husband and wife, who ought to have a mutual Prov. v. 18. complacency and delight the one in the other, and to be satisEccl. ix. 9. fied at all times with the love, comfort, and society the one

28.

Prov. v. 19.

of the other; which love, if it had been so throughly rooted and seated in the Gentlewoman's heart as it ought have been, would have crushed all motions of unlawful affection towards a stranger in the shell, long before they could grow to such strong resolutions, as by the making of this Vow it appeareth they did; for it is not to be imagined that such a Vow as this could be made, and really intended to be performed, but we must needs suppose in the parties so vowing a kind of weariness

h Vota uxorum vel servorum exsequenda illo tempore quo fuerint sui juris, mariti vel domini non possunt irritare. Navarrus, Manuale, num. 65. et alios. [A summary of

the matter, not a quotation of the words, pp. 238-241. Paris, 1620. or in the third Volume of his Works, pp. 67, 8. See De Conscientia, Praelect. v. §. 6.]

at the least, if not rather some inward loathing of the present yoke, which being contrary to that honour that married persons owe to their yokefellows, is so a breach of the Fifth Commandment. A third Obliquity there was also as a breach of the Tenth Commandment, against those express words, Thou shalt not covet thy neighbour's wife: every man and woman being to content themselves with that lot which, by God's Providence, hath befallen them, as in all other things, so especially in that which is of the greatest weight, the lot of Marriage, without coveting or lusting after that which it hath pleased the wisdom of God already to dispose upon another. This Gentlewoman's Promise then being such, as (if it should be brought to an impartial trial before that tribunal which God hath erected in every one's Conscience, and according to the tenor of that Divine Law whereof no Christian should be ignorant) could not be reasonably acquitted from any one of these sinful Obliquities, but not possibly from them all, we may conclude to have been an act utterly unlawful.

Point IV.

14, &c.

I, 2.

9. But because a man may contract an obligation by an act not free from Obliquity, as the saying in such cases is, Fieri non debet, factum valet, and we have a ruled Case for it in the Covenant which the Princes of Israel made with the Josh. ix. Gibeonites, which, though sinfully made at the first, was ne-Verse 19. cessarily to be kept afterwards, we are therefore to inquire 2 Sam. xxi. into a Fourth Point, Whether the Gentlewoman, having de facto bound herself by such an unlawful Promise, be still by virtue of the said Promise bound in Conscience to the performance thereof, or not? To answer directly to the Point, I take it, she is not bound thereunto; for that saying, Fieri non debet, factum valet, hath place only there, where the Obliquity that maketh the act unlawful, may be severed from the substance of the matter about which the act is conversant : as when a man voweth to do something which is not in itself, and for the substance of the matter simply unlawful to be done, but yet voweth it, either rashly and without due advertisement,* or for some indirect and unwarrantable end, or

* 'without due advertisement.' bridge Version, 'absque idonea conThe Edd. have 'with.' In the Cam- sideratione.'

upon slight and insufficient inducements, or the like, any of these Obliquities are enough to make the Vow unlawful, in respect of the act of vowing; yet because these Obliquities do not necessarily pass upon the matter itself or the thing vowed, but may be severed from it, therefore, though the act of vowing were sinful, the Vow itself for all that may stand good, and bind the party to performance; but where the sinful Obliquity passeth upon the substance of the matter, or adhereth inseparably thereunto, there not only the act of vowing is sinful, but the performance also becometh unlawful. which cases those other sayings ought rather to have place, Juramentum non debet esse vinculum iniquitatis: In malis Promissis rescinde fidem : In turpi Voto muta decretum, &c.*

In

10. If it shall be said, that this difference, being admitted, will nothing avail the Gentlewoman in our present Case, to free her from the Obligation of her said Promise, because here the matter of Promise seemeth not to be in itself unlawful, especially on her part; for if the Gentleman, her friend, were presently free from the bond of Matrimony by the death of his wife, as the Gentlewoman now is by the death of her husband, they might perform what they had promised either to other, by joining themselves in Matrimony, and that without sin; which is an argument that the sinful Obliquity was only in the act of promising, which therefore they ought to repent of, but doth not cleave to the matter of the Promise, which therefore they ought not to violate,-to this I answer, what in my opinion is true, that if both the parties were now actually free from the Marriage bond, they not only lawfully might, but were in Conscience bound (unless some other lawful impediment should hinder) to join themselves together in Matrimony, because none of the forementioned Obliquities, which made the former act of promising unlawful, would fall upon the after-act of Marriage to make it unlawful. But that allegation is not direct to the Point in hand, nor to the Case as it is propounded; for it may be observed from the very form

*Isidor. Hispal. Synonim. ii. 10. Melius est non promittere quam post votum promissa non reddere. In malis autem Promissis rescindatur fides in turpi Voto muta de

:

:

cretum quod incaute vovisti non facias. Impia est Promissio quae scelere impletur. Compare De Juramenti Obligatione, Praelect. ii. §. 13.