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A34605
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Bishop Cozens's argument, proving, that adultery works a dissolution of the marriage being the substance of several of Bishop Cozens his speeches in the House of Lords, upon the debate of Lord Ross's case : taken from original papers writ in the Bishop's own hand.
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Cosin, John, 1594-1672.
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Wing C6351; ESTC R39397
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6,457
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Bishop COZENS's ARGUMENT PROVING THAT Adultery works a Dissolution of the Marriage Being the Substance of several of Bishop COZENS his Speeches in the House of Lords upon the Debate of the Lord Ross's Case Taken from Original Papers writ in the Bishop's own Hand THE Question is indefinitely to be spoken of Whether a Man being divorced from his Wife who hath committed Adultery and is convicted of it may Marry himself to another Wife or no during the Life of her which is divorced The Place in St. Matthew the 5th repeated again St. Matthew the 19th has great Perspicuity If it be not lawful for any man to put away his Wife and Marry again except it be in the Case of Fornication for the displacing the Words by putting the Exception before the Marriage cannot alter the Sense then à contrario it must of necessity follow That if the Wife be put away for Fornication the Husband by the Tenor of Christ's Words is left free to Marry again which Freedom is not allow'd the Adulteress her self nor to any man else that shall Marry her St. Mark and St. Luke have been opposed to St. Matthew and it has been said that Christ's words in St. Matthew did not properly belong to Christ's Disciples or the Christian Church as the words in St. Mark and St. Luke which are absolute do which is a Saying that neither I nor I think no body else ever heard of before For Christ's Sermon in the Mount was spoken to his Disciples and especially belonged to Christians 'T is clear they are spoken to his Disciples for he says to them that they are the Salt of the Earth and the Light of the World and that they are blessed when they suffer persecution for his Name 's sake which no man will say or apply to the Iews 'T is true that in the 19th Chapter of St. Matthew Christ answers the Scribes and Pharisees who came to tempt him with their Question Whether it was lawful for a man to put away his Wife for any cause as they said Moses had permitted them to do But the Answer that Christ gave them That it was not lawful but only in the case of Adultery for men to put away their Wives and to marry another was a Rule which concerned all Christians to observe for ever after and for that reason was recorded by St. Matthew The words in St. Mark and St. Luke are not to be taken absolutely but to be supplied and understood by his words in St. Matthew as in many other Cases is clear viz. the Thief upon the Cross Baptism in the Name of the Father Son and Holy Ghost c. whereof many Instances may be brought as the destruction of Niniveh c. But for Christ's words the Exception confirms the Rule and infers a Concession that in the Case of Fornication the putting away one Wife and Marrying another is allowed It is alike with divers other his Exceptions which are found in Scripture For brevity I will instance in this one vix Except re repent ye shall all likewise perish Upon which Text if I or any Bishop else were to Preach I believe we should not discharge our Duty unless we should tell the People That if by the Grace of God they did repent they should not perish The Exception here 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nisi unless is parallel with the 1 Kings 3. 18. None were in the house except we twain they Two therefore were others were not Such Exceptions proceeding from natural Equity are tacitly implied in Laws tho pronounced in general Terms But as to the Exception here the Words are not capable of any other Sense than as I have observed for except that Restraint be referred to Marrying again the Sense would run thus Whosoever puts away his Wife commits Adultery which stands not with Truth or Reason since it is not the Dismission that is Adulterous but the Marriage of another It is therefore the plain drift of our Saviour to teach the Pharisee that the Marriage of a Second Wife after a Dismission of a Former upon any other cause except for fornication is no less than Adultery thereby inferring That upon a Just Dismission for Fornication a second Marriage cannot be branded with Adultery Besides the Pharisee's Question Is it lawful for a man to put away his wife for every cause was not without a plain implication of Liberty to marry another which our Saviour well knowing gives a full Answer as well to what he meant as what he said which had not been perfectly satisfactory if he had only determined that one part concerning Dismission and not the other concerning Marriage which Clause if Two Evangelists express not yet it must be fetch'd necessarily from the Third since it is a sure and irrefragable Rule That all Four Evangelists make up one perfect Gospel The Rhemists and College of Doway urge for the Popish Doctrine Rom. 7. 2. The woman which hath an husband is bound by the law to her husband as long as he liveth But 1. This place is to be Expounded by Christ's Words 2. St. Paul hath no occasion here to speak of Divorce but of Marriage whole and sound as it stands by God's Ordinance 3. He speaks of a Woman who is under an Husband so is not she that is divorced from him 4. St. Paul useth this to his purpose of the Law being dead to which we are not bound Nor is their Doctrine more favoured by 1 Cor. 7. 10. Let not the woman depart as being in her Choice whether she would depart or not But in the Case of Fornication she was to depart or rather be put away whether she would or not The Bond of the Marriage is to be enquired into what it properly is Being a Conjugal Promise Solemnly made between a man and his Wise That each of them will live together according to God's Holy Ordinance notwithstanding Poverty or Infirmity or such other things as may happen during their Lives Separation from Bed and Board which is part of their Promise so to live together doth plainly break that part of the Bond whereby they are tied to live together both as to Bed and Board The distinction betwixt Bed and Board and the Bond is new never mentioned in the Scripture and unknown in the Ancient Church devised only by the Canonists and the Schoolmen in the Latin Church for the Greek Church knows it not to serve the Pope's turn the better till he got it established in the Council of Trent at which time and never before he laid his Anathema upon all them that were of another Mind forbidding all men to marry and not to make any use of Christ's Concession Bed and Board or Cohabitation belong to the Essence and Substance of Matrimony which made Erasmus and Bishop Hall say That the distinction of those two from the Bond is merely Chimerical and Fancy The promise of Constancy and mutual Forbearance if it hinders Divorce as to
the Bond hinders it also as to Bed and Board because the same Bed and the same Table were promised in the Marriage Contract but the Promise does not extend even to Tolerating Adultery or Malicious Desertion which according to God's Ordinance Dissolves the Marriage Our Saviour speaks of Divorces Instituted by the Mosaical Law but they were no other than Divorces from the Bond. The Form of the Bill of Divorce among the Iews was this Be Expelled from me and free for any Body else To give the Bill of Divorce is from the Hebrew Root 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is to break or cut off the Marriage With this agree the Ancient Canons Councils and Fathers of the Church Concil Neocaesar Elib forbid the retaining an Adulterous Wife Concil Eliber Aurelian Arelatens give Liberty in such Case to marry again Clemens's Constitution Tertullian St. Basil in his Canons approved by a General Council are for Marrying again Concil Venet. If they marry in any other Case than Fornication they are to be Excommunicated and not otherwise Concil Wormat. gives Liberty to the Innocent Party to Marry after Divorce Concil Lateran gives leave for the Innocent Party after a Year to marry again Concil Lateran If any one take another Wife while a Suit is depending and afterwards there be a Divorce between him and the First he may remain with the Second Lactantius St. Hierom and Epiphanius are for allowance of Marriage after Divorce Chrysostom Hom. 19. 1 Cor. 7. says That the Marriage is dissolved by adultery and that the husband after he hath put her away is no longer her husband Theophylact on the 16th of St. Luke says That St. Luke must be interpreted by St. Matthew St. Hillary is for marrying again as Dr. Fulk saith upon St. Matthew the V th The Eastern Bishops in the Council of Florence are for marrying again Iustin Matyr speaks of a Christian Woman's giving a bill of Divorce to a Dissolute Husband without finding any fault with it St. Ambrose says a man may marry again if he put away an adulterous Wife Theodoret said of a Wife who violated the Laws of Marriage Therefore our Lord requires the Bond or Tye of Marriage to be dissolved All the Greek Church to this day allow it Erasmus Cajetan and other Papists The Civil Law and the Laws of the Emperor are clear for it And the Constitutions of our own Church of England in the time of H. 8. E. 6. and Queen Eliz. The Practice of the English Church In the Stat. 1 Iac. c. 11. against Second Marriages Divorces are excepted and in Canon 107. 't is provided they shall not marry again but it is not said such Marriages are void only the Caution is forfeited Neither doth the Canon speak of such Separations wherein the Bond it self is broken as 't is by Fornication Even the Canon-Law allows marrying again in case a Woman seek her Husband's Life and in case of Bond woman Gratian says in the Case of Adultery Lawful Marâ—iages ought not to be denied In the Case of an Incurable Leprosy it was the Advice of St. Gregory to Austin the Monk That he that could not contain should rather marry Bellermin owns that the Bond of the Marriage of Infidels is dissolvable but the Marriage of the Faithful and of Infidels is of the same nature And Iustinian a Jesuit confesses that it is simply lawfull for the Innocent Party to marry again And the Roman Doctors allow a dissolution of the Bond of Marriage if the Parties should after consummation transfer themselves into a Friery or Nunnery The Canons which in the case of Adultery prohibit Marrying in the Life time of the guilty Person are contrary to Two Acts of Parliament made 25 H. 8. and 3 4 E. 6. wherein no Canons are allowed that be any way repugnant to the Laws of God Ref. Leg Eccles. Tit. de Adulteriis Divortiis or the Scripture the King's Prerogative Royal and the Statutes of this Land 32 Persons were to review the Canon-Law in which Review drawn up by Archbishop Cranmer the Innocent Person is permitted to marry again according to Christ's Law and Concession We have examples of such Marriages in H. 4. of France H. 8. of England Lord Mountjoy Lord Rich Bishop Thornborough and divers others And it is observable That in the Case of the Marquess of Northampton 5 E. 6. who had been divorced for his Lady's Adultery and married another before any Act of Parliament made concerning it an Act which passed afterwards only two Spiritual and two Temporal Lords dissenting declares he had been at liberty by the Laws of God to marry and did lawfully marry another Where the Act manifestly supposes that whatever had obtained for Law till that time was void as being contrary to God's Law The most considerable Men of the Reform'd Churches both at home and abroad are of this Opinion Grotius quotes Tertullian in whose time it was lawful for the Innocent Party to Marry Lancelot Inst. Iur. Can acknowledges that Divorce is a dissolution of the Marriage Selden who is not likely to contradict the Laws of this Kingdom maintaineth That Marriage after Divorce is to be allowed And in that particular Dr. Hammond doth not contradict him but is clearly for it The Opinion of Amesius deserves to be set down at large Marriage says he cannot be dissolved by men at their pleasure and for that reason as it is considered simply and absolutely it is rightly said to be indissolvable because Marriage is not only a Civil but a Divine Conjunction and is also of that nature that it cannot be dissolved without detriment to either Party Yet it is not so indissolvable but it may be dissolved for a Cause which God approves as just for the Indissolvability was not instituted for a Punishment but for the Comfort of Innocent Persons and it admits an Exception wherein God ceases to conjoyn By Adultery two are made not to remain one Flesh hence it is that a Contagious Disease is not a Cause of dissolving Marriage By Adultery the very Essence of the Contract is directly violated but the Contract ceasing the Bond dâ—pending on the Contract necessarily ceases It is against all reason that all Matrimonial Duties should be for ever taken away yet the Bond or Obligation to those Duties should continue The words of our Lord Matth. 5. 32. and 19. 9. have no distinction or limitation of the putting away but simply and absolutely approve of putting away therefore they approve of a putting away not partial or to a particular purpose from Bed and Board but Total None are against the Reformed Divines but Dr. Howson Mr. Bunny and Dr. Prideaux Dr. Howson was a professed Adversary to Dr. Raynolds who was a great Maintainer of the Church of England against all the Points of Popery and particulary in thiâ—â— Dr. Taylor Bishop Hall Dr. Fulk are for Second Marriages no Authors against them but the Council of Trent