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book_n	call_v	church_n	time_n	2,817	5	3.2368	3	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A66870	The case of divorce and re-marriage thereupon discussed by a reverend prelate of the Church of England and a private of the Church of England and a private gentleman ; occasioned by the late act of Parliament for the divorce of the Lord Rosse.	Wolseley, Charles, Sir, 1630?-1714.	1673 (1673)	Wing W3307; ESTC R9734	27,389	164

ends cannot be attained this I assent to but it will not reach this case Ability to perform is implyed in all contracts providential disability no way cancels the matrimonial obligation because 't is entred into with a supposition of them But although God in his just Judgement and as a punishment upon both may bring married persons into such a condition yet 't is not a ground for men to make a rule to go by especially for the offence of one 't is There matter of necessity and not of choice There the ends of marriage cannot be attained Here they may only we obstruct them God does that many times providentially and Judicially which we can neither do reasonably nor regularly 't is mens duty to submit to God when he takes away those helps marriage affords but that is no ground for us to take them away while he continues them A man obliged by an oath of Allegiance to his Prince may providentially be brought into such a condition he cannot perform it but That will never warrant us to bring any man into such a condition where the obligation to a duty is necessary and the suspension of it is voluntary It may so fall out a Prince cannot protect his subjects nor his subjects obey him yet the obligations upon both remain But this will never justifie us upon any account to bring things into such a posture But suppose the woman refuse due benevolence where there is no disability I say she lives by so doing in a notorious sin and 't is not fit that what is a sin in either party voluntarily to do Both should be enjoyned to do which they are by divorce à mensa toro The woman in that kind is lyable to punishment for not performing matrimonial duties and in case all means used to reduce her to her duty prove ineffectual 't is worthy consideration whether she may not at last come under the equity of St. Pauls didirection about desertion which is nothing as I take it relating to divorce or putting away in that sense our Saviour speaks of it but a help that the Law of nature which is ever implyed in all divine institutions affords to an innocent wronged person unjustly forsaken and actually or perhaps virtually put away the Apostle says A brother or a sister 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is not inslaved in such a case The truth of this whole matter is our Saviour has in the Gospel established a Law for Divorce and Remarriage in the single case of Fornication instead of That liberty given by Moses under the Law it must be proved that he intended That part of the Gospel as a rule to the Jews only which he never intended any other part of it to be nor does any where say he intended This to be or else the matter is determined Amongst the Jews never any Divorce heard of without liberty to remarry and it was only intended for that purpose Calvin upon that passage He that marries her that is put away commits Adultery speaks fully says he This sentence hath been most corruptly expounded by many Interpreters for they thought generally and confusedly that is was commanded to live sole after Divorcement so if the Husband should put away the Adulteress of necessity They both should live unmarried as if This were the liberty of Divorcement only to lye away from the Wise as if also Christ did not evidently in this case permit That to be done which the Jews were wont generally to usurp unto themselves according to their own pleasure Therefore their errour was too gross for when Christ condemneth him for Adultery that marries her that is put away 't is certain that this is to be understood of unlawful and frivolous Divorcements By the Roman Laws all Divorces admitted of a second marriage In the Christian Church in the beginning it was so Nor indeed was Divorce ever thought of any where but in order to a second marriage till this contrivement of a Divorce à mensa toro came in the effect of which in the Roman Church where it hath been chiefly practised has been such as does no way credit it Cajetan one of their own is so ingenuous that upon the 19th of Matthew he saith Intelligo igitur ex hac Domini Jesu Christi l●ge licitum esse Christiano dimittere uxorem ob fornicationem carnalem ipsius uxoris posse aliam ducere And a little after adds Non solum miror sed stupeo quod Christo clarè excipiente causam fornicationis torrens Doctorum non admittat illam mariti libertatem Wherever that kind of Divorce has been practised the consequence hath most commonly been that the innocent party hath by temptation fallen into sin the offending party into farther transgression for 't is not a thing probable or likely that such who would not live chastely in a marryed condition should do so in a single condition and at last greater inconveniences and animosisities have arisen from such a separation and the parties very rarely if ever again united It inslaves mankind into a very sad dilemma either to lye in a polluted bed and yield to every impudent Adulteress for so they usually grow at last or else to udnergo all those temptations men are subject to without a Wife in a single and unmarried condition God no where seems to have given the woman such an advantage over the Masculine Sex as to be able to intrap the Man in such a snare Animadversion TO end such as hold to my opinion lay it the more to Conscience foreseeing that the contrary may stir up some wicked Husbands to suborn false witnesses upon Oath to convince innocent Wives that They being divorced it may admit them to marry where they like better Moreover it may fall out not seldom that a wicked Woman will confess her self an Adulteress upon assurance of some ample compensation More might be added Answer 'T is a thing likewise to be feared that if no better remedy be provided for innocent Husbands than a Divorce à mensa toro it may provoke them to rid themselves of their Adulterous Wives by some undue means the rage of a man is great in those cases and truly sometimes unconquerable even in good men sad events have ensued and may ensue in such cases For suborning proof in this case there 's no more danger than in all other mens estates and lives and their highest concerns depend upon proof by witnesses there is no surer or better ground to proceed upon in all humane determinations this matter has the greatest advantage against proof of any being rarely within the reach of it and for one fact of That nature that can be brought to light by due proof many will pass in the dark without proof and so without punishment A womans own confession in this case will not prevail the rule in the Civil Law takes place Revelanti turpitudinem suam fides non datur In the raign of Henry the eighth when the Popes power was excluded an Act passed to inable the King to elect thirty two able persons to reform Ecclesiastical Laws This in the 6 year of Edward the sixth's Raign was put in execution and the Quorum of them by letters Patents reduced to eight they met and took great pains there was present Cranmer Archbishop of Canterbury Goodrich Bishop of Ely and other the chief of the Bishops Peter Martyr and other eminent Divines and the most eminent Canonists Civilians and Common-Lawyers then in the Kingdom they set forth a Book called Reformatio legum Ecclesiasticarum which we may well reckon the judgement of the Church of England at That time about those things being composed by such men impowred by the supream Authority and in That Book the lawfulness of Divorce in case of fornication and remarriage upon it is fully asserted and justified I shall only add that amongst learned men I find great disagreement in resolving this Question whether the same right of Divorce belong to the Woman that does to the man some say the superiority of the Sex makes this a peculiar prerogative to the man who is the head of the Woman ` T is certain in the Mosaical Law no such thing as a Womans putting away her Husband was ever allowed sometimes in fact it was illegally and irregularly practised yet very rarely we find in all the Jewish Writers but one instance and that is in Josephus The Roman Laws allowed it Those who espouse the Womans cause in this point urge that passage of our Saviour in the 10th of Mark where he saith And if a woman put away her husband and marry another she commits Adultery and so seems to make the right of putting away equal Calvin upon this place saith that although the Husband be superior in other respects yet in the marriage-bed the man and the woman are equal therefore saith he when as the Adulterer shall fall away from the knot of matrimony the Wife is set at liberty they also urge that of St. Paul who saith in case of desertion a Brother or a Sister is not bound and so seems to put the matter between Man and Wife upon even terms in all conjugal respects The Christian Church affords us but two instances that look this way The first of one Thecla who refused to marry one Thamyris in Iconium after she was contracted to him This story Mr. Selden relates at large from the report of Basil of Selencia but seems not much to credit it himself however it was but a refusing Marriage after contraction Mr. Selden calls her only Sponsa and saith Nuptias noluit sponsalibus renunciavit and it was to one that most bitterly detested Christianity The other instance is that in the beginning of Justine Martyrs first Apology where a Christian woman made use of the Roman Laws to put away her Husband and he commends her for it but that was evidently upon St. Pauls permission in case of desertion for her Husband was a notoriously wicked person and departed from her In this matter I shall make much a better choice to submit to your Lordships learned Judgement than to declare my own FINIS