The CASE OF DIVORCE AND RE-MARRIAGE thereupon Discussed By a Reverend Prelate of the Church of England and a private Gentleman Occasioned by the late Act of Parliament for the Divorce of the Lord ROSSE I know that Messias cometh which is called Christ when he is come he will tell us all things Joh. 4. 25. LONDON Printed for Nevill Simmons at the Prince's Armes in St. Pauls Church-yard 1673. READER THese Papers were drawn up when the Business of the Lord Rosse was debated in Parliament and had their rise from That transaction The first part of them was Written by a private hand and was occasioned by a Discourse with a learned Bishop now with God upon that Subject and being presented to him he returned the following Animadversions upon it to which the Answer Here set down was Then given by the same hand The whole is now made publick for thy information and satisfaction about this matter Touching Divorce and Remarriage thereupon AN incapacity for the ends of marriage previous to it makes a Nullity of the marriage upon a subsequent discovery of it This needs no determination by any positive Law For the Law of Nature and the reason of the thing it self gives an universal determination of it every where By the Law of Moses unchastity before Marriage or contraction if concealed and all unchastity after Contraction or Marriage was to be punished with death and no mention made in the Law of any such thing as Divorce in that Case Moses in the 24th of Deuteronomy gave This allowance for Divorce vers 1 2. When a man hath taken a Wife and Marryed her and it come to pass that she find no favour in his eyes because he hath found some uncleanness in her Then let him write her a Bill of Divorcement and give it in her hand and send her out of his house And when she is departed out of his house she may go and be another mans wife which was but an allowance in some Cases and in those too did rather liberare à Poena than a Vitio We need not inquire farther why this was done our Saviour has given us a perfect account of it such a permission was granted to them because of the hardness of their hearts and the unruly stubborn behaviour of the Jews towards their Wives in that particular Moses who we are to consider as a Legislator to a State as well as a Church suffered it to be as the most tolerable remedy that That people were capable of and in favour chiefly of the Women This permission of Moses came in the practice of it to be so far extended amongst them that whoever desired to put away his Wife was allowed to do it without giving any reason at all besides his own pleasure why he did it This we may see in Mr. Selden ' s Vxor Haebraica and Grotius tells us Quod Consuetudo legis interpres Nullam à marito causam dirempti Matrimonii exegerit and adds Alioqui enim nou potuisset Josephus Maria clam dimittere Potuit igitur Maritus dicere quod Romae dixit Paulus Emilius sibi optimè notum quà calceus urgeret This custome was in it self greatly inconvenient and as one sayes of it For a man Nulla aut levissima de causa uxorem dimittere ut Jam de primaeva dei institutione nihil dicam vel sola charitatis lex prohibebat sive uxorem respicias quae veluti supplex ad Mariti Tutelam confugit sive communes etiam liberos Heathen Nations rarely practised any such thing the Romans in particular of whom an antient Author sayes Romani cum nulla lex repudium vetaret annos tamen quingentos viginti sine exemplo repudii â—gerunt Nec quisquam fermè scriptorum est qui non gravitèr reprehendat Marcum Tullium Ciceronem quod levibus de causis Terentiam dimiserit Our Saviour in the Gospel before the Pharisees asked him any Question about this matter which they did and their Question and his answer is set down in the 19th of Matthew and the 10th of Mark determines it in the 5th of Matthew in his Sermon upon the Mount there being indeed nothing wherein That people needed more Reformation than in That particular His words are verse the 31 It hath been said whosoever shall put away his Wife let him give her a Writing of Divorcement And verse the 32. But I say unto you that whosoever shall put away his Wife saving for the cause of Fornication causeth her to commit Adultery and whosoever shall marry her that is Divorced committeth Adultery By this it is plain that whatsoever toleration they had from Moses about putting away their Wives and whatsoever farther liberty they took to themselves in That matter it is totally repealed and condemned and no cause of divorce and putting away allowed to be good but in case of Fornication and Unchastity There ariseth this difficulty from the consideration of our Saviour's words whether he he did thereby intend to institute a new Law in the Case or whether he only spake Interpretatively with reference to the Law of God Then in being Those who are inclined to think he did institute a New Law urge it from hence That our Saviour speaks of Fornication and Unchastity as a ground and the only ground of Divorce which by the Law had another punishment appointed for it and such a one as made Divorce impossible and impracticable for they were to be put to death that were so found guilty and of That Law our Saviour takes no notice say they the punishment the Law appointed to be inflicted for Fornication and Adultery and the direction our Saviour gives about it cannot consist together the one directs Divorce the other appoints death I suppose our Saviour in what he Here determines about this matter as in many other of his determinations about other things speaks so as that he gives a full satisfaction to men according to the present state of things then in being and also establisheth a Divine Law upon such grounds that shall last for ever in the Church For the first That he spake with reference to the Law Then in being and to settle the Consciences of men who desired to perform their duty as things Then stood I gather from hence First because he spake to such who were then all of them under an obligation to the whole Mosaical Law for so were the Jews and Christ's own Disciples to whom he Preached Secondly He plainly seems all along that Chapter to comment upon the Law of Moses and Evangelize it and to give the true and genuine meaning of it against the corrupt and perverse interpretations of the Scribes and Pharisees And when he sayes But I say unto you he does not so much oppose himself and what he said Then to Moses and what Moses had said Before as to what the Scribes and Pharisees had falsly said in Moses name and so rather vindicates the true sense and
of Matthew is again repeated by him in the 19th of Matthew in answer to the Pharisees who there questioned with him about the same matter He there tells them there is no cause lawful for a man to put away his Wife but only Fornication and that he admits to be a lawful cause and the only lawful cause In the 10th of Mark our Savious discourse is set down without the exception of Fornication and runs general that whoever puts his Wife away and marries another commits Adultery and so in the 16th of Luke our Saviour sayes without any of the circumstances in his other discourses of it in the general and without the exception of Fornication That whosoever shall put away his Wife and marry another commits Adultery It must be noted that what Mark sets down in the 10th of Mark is the very same story recorded by Matthew chapter the 19th and both the Evangelists give an account of the same discourse between our Saviour and the Pharisees at one and the same time That is so clear that 't is not to be denyed and therefore whatever is set down by Matthew must be admitted to belong to the story and be implyed in it though omitted and not expressed by Mark and so whatever is in Mark that Matthew hath omitted must be likewise supposed to belong to the story or else we must imagine the Evangelists not to be both in the right in their relation of the same story which cannot but be and therefore Matthew expressing that our Saviour added That exception except in the cause of Fornication 't is to be supposed and implyed in the relation Mark makes of the story though he express it not neither in what he said to the Disciples nor to the Jews themselves for the answer is There general to both Calvin in his Harmony upon the Evangelists sayes upon this place that 't is the same story related in both places and there is no other difference sayes he but that one sets down the matter of our Saviours discourse more fully than the other it being sayes he most usual for one Evangelist to omit some passages and circumstances in the same story mentioned by another Saint Luke in his relation of what our Saviour said about this matter omits all the circumstances of his discourse and only mentions in short this general expression of our Saviour That whosoever should put away his wife and marry another committed Adultery which is evidently spoken of those unlawful Divorces daily practised amongst the Jews and directed against Them Some conceive that our Saviours determinations in this point were intended with a distinction that is that when he spake in general against putting away without any exception he spake relatively to his Disciples and to the Gospel-Church to come but when he spake of it with the exception of Fornication annexed to it he intended That only with relation to the Jews and so the exception Now concerns not us but was only meant to Them and terminated There Very many things strongly oppose this apprehension First in the 5th of Matthew where our Saviour gives the first and most solemn determination about this point 't is plain he spake to his Disciples as well as the multitude of the Jews For the Chapter begins And seeing the multitudes he went up into a mountain and when he was set his Disciples came unto him And he opened his mouth and taught them saying c. And he often in that Sermon directed his discourse particularly to his Disciples for so he did in the 14th verse where he tells them ye are the salt of the World A City set on an hill cannot be hid which must be spoken to them Nor was there any reason why our Saviour should Preach one Doctrine in this matter to his Disciples and another to the Jews For the Disciples were equally obliged Then to the Law and concerned in all that the Jews were and therefore the same Doctrine must needs be common to them both Secondly We find not the least ground from any thing our Saviour said any where to make any distinction in this matter to believe the Rule was given general to one sort of men and with an exception to another but we find the Rule often generally laid down by our Saviour with this general exception annexed to it and in that case where our Saviour once gives a general rule with a general exception annexed to it wheresoever our Saviour after repeats the same Rule we must suppose the exception or else we can never be able to make our Saviour to agree with himself Nothing more usual than to imply remote exceptions under generals to reconcile the Scripture with it self much more in This case where our Saviour himself so often joyned the Rule and the exception together Our Saviour bids us positively in the same Chapter not to swear at all in general terms yet every man that is sober will under This general imply all the lawful swearing the Scripture any where else enjoins or approves because we must not make the Scripture militate with it self Thirdly There can be no good reason to limit what our Saviour said about Divorce in the 5th of Matthew and the 19th of Matthew to the Jews only but we must needs admit it to be a general Law given in the case to all Ages because he grounds his determination about it not upon the Judicial Law but upon reasons drawn from the general Law of Nature and the first institution of marriage by God in the Creation of man and woman at the beginning and such general principles as had no peculiarity at all to the Jews though they were obliged by them but such wherein all mankind were equally concerned Our Saviour opposed the Pharisees and the Judaical practice and establishes the Law he introduceth about it by reducing the matter of Marriage and Divorce to the primitive rule of it and to the natural and perpetual reason of the things in themselves considered and therein spake not only to them but to all mankind and to the whole world He directs them to look to the first rise and original of Marriage God made at first but one man and one woman a male and a female and appointed Them two in those two kinds to be in the relation of Marriage one flesh so that Nature and Institution the very Laws of mans first Creation make the marriage-Union very sacred and from thence our Saviour derives his direction about it And for Divorce whereas the Jews upon every trivial occasion allowed it our Saviour denies it to be lawful upon any occasion but one and that grounded upon the natural and general reason of the thing in it self considered The very essence of the marriage-Union both by nature and primitive institution lyes in this that two are one flesh where fornication is committed the Union is dissolved for as St. Paul tells us whoever joyns himself to an Harlot is one flesh with
Nor did I ever yet meet with any that thought the Hebrew word used in the 24 of Deut. as the ground of Moses permission of Divorce could be rendred by the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is that used by our Saviour But to put it out of all farther question that the licence Moses gave to Divorce cannot be restrained to Adultery and Fornication there is this undeniable evidence If that were so we must make our Saviour palpably to contradict himself and at the same time to establish what himself repeals and to do the same thing which he finds fault with as done by Moses being not that which was from the beginning but that which was done only temporarily and occasionally for the hardness of That peoples hearts our Saviour's speech would Then run Thus Moses for the hardness of your hearts suffered you to put away your Wives for Fornication and Adultery which was not so from the beginning and so ought not to continue But I say unto you that whosoever puts away his Wife except for Fornication and Adultery and marries another commits Adultery in so doing There needs no more than our Saviours own-words to assure us that the liberty Moses gave for Divorce and That Christ gave were upon different grounds The plain meaning of our Saviour seems to be this Moses heretofore upon a particular reason because of the hardness of your hearts suffered you to put away your Wives upon grounds that were not intended to be a lawful cause of Divorce from the beginning I 'le have that to be so no more but I 'le have it to be as it was from the beginning and from the beginning there was no good cause o◠Divorce but Fornication and This cause was a good cause from the beginning and the first institution of marriage and appears by our Saviours interpretation of the first Institution of Marriage to be so and to be implyed in the general institution at the first and reserved as much as the service of the Temple and liberty to works of mercy and necessity are declared by him to be reserved and implyed in the first positive institution of the Sabbath though not expressed so that if we look to the liberty given by Moses our Saviours Law about Divorce is a new Law for he repealed That if we look to the Law of Creation and first institution of marriage 't is the same that was from the beginning only the Mosaical indulgence had interposed and our Saviour by repealing That settles the matter upon the old and lasting foundation wherein Jews and Gentiles and all men to the worlds end are to acquiesce and declares that exception of Fornication though not expressed to be virtually contained and implyed in the institution of marriage from the beginning Animadversion IT is a strong argument to me that whereas God saith the nations round about the Jews would admire their wise Laws yet none of the Heathen had such a loose Law as to divorce at every exception the husband took Answer It is a consideration of moment I grant yet our Saviour giving the reason of it and thereby seeming to admit the thing determines us It was rather a Toleration than a Law a permission of impunity rather than an institution and we have good reason to think as things then stood the best and most prudent expedient That people were capable of Calvin speaks wisely of it says he we give general liberty without restraint for men to go to Law yet that justifies no mans going to Law beyond the bounds of Charity St. Chrysostome in his excellent Homily upon the 5th of Matthew speaks more fully to th ground of it Si enim retineri etiam exosam praecipisset uxorem facilè profectò illam qui oderat occidisset Talis quippè erat natio Judaeorum qui enim ne filiis quidem propriis parcere Prophetas solebant frequentèr occidere ut aquam ita effundentes humanum cruorem multò illi minus odiosis conjugibus pepercissent Moses inquit propter duritam vestram haec scripsit ne clam mactaretis sed ejiceretis The Christian Roman Emperours gave much the same liberty to the Husband Grotius sayes Christiani Imperatores extra Adulterium aliquot scelera enumerant quibus probatis maritus sine ullo damno uxorem repudiet quod est amplius ea si probare nequeat non simplicitèr repudium vetant sed in arbitrio mariti relinquunt malitnè uxorem retinere an dotem reddere amittere quod propter nuptias donavit Animadversion MAtth. 19 9. is not every way the same determination with his doctrine Matth. 5. for chap. 19. he speaks in his case that marries another but Matth. 5. in his case who marries her that is put away Answer I conceive both places are alike to this purpose to make remarriage upon Divorce lawful for in the 5th of Matthew remarriage is plainly intended by our Saviour for he saith whosoever puts away his Wife except for Fornication which is to be understood such putting away as they Then used which was to remarry after it for he sayes expresly whoever puts away his Wife and marries another and he sayes if the woman marry again except put away for the cause of Fornication she commits Adultery the exception plainly implyes her remarriage is no Adultery if put away for Fornication and if the woman so put away may lawfully marry again much more the man that did put her away if it be lawful for either to marry it must needs be for both for it must be upon supposition of the Marriage-bond dissolved Animadversion IN Matthew there 's mention of putting away not a word to allow the innocent person to marry again but here is a strong argument indeed that the Law of Moses never allowed their petulant putting away for every cause For Christ as you well observe rendred the right sense of the old Law gave no new Answer No new Law if we respect what Law was from the beginning which the Jews were obliged by but new in this case if we respect the permission of Moses for he positively repeals That The Law the Jews were to submit to was the Law of Creation and first institution which Moses revealed to them to That our Saviour reduceth them The permission about Divorce was accidental and temporary that our Saviour positively repeals and 't is very plain that in Both cases That of Moses for Divorce and That of Christ for Divorce remarriage is admitted in Moses in terminis expressed and by our Saviour plainly and undeniably implyed Animadversion THat Christ intended the obligation of the marriage should cease Presumitur non probatur Answer Christ must needs intend the obligation of the marriage should cease where he gives liberty to a second marriage as he plainly does in case of Fornication both in the 5th and the 19th of Matthew Christ reasons about marriage from the Law of creation and the first institution of
intention of the Law under his own name And though his determinations in some things exceed the Law yet in all things they contain the true sence and end of the Law Thirdly When the Scribes and Pharisees asked our Saviour in the 19th of Matthew about this matter what lawfully might be done in it our Saviour answers them with the very same determination and therefore 't is plain he spake with reference to what was at that time to be accounted Legal according to the Laws and institutions of God Then in force and there is nothing in what our Saviour sayes that does any way contradict the Law of God in being but gives a satisfaction to mens Consciences how they were to behave themselves under it We must note this that our Saviour is singly upon the point of Divorce and putting away he meddles not at all with the Law about Adultery but leaves it to its due execution His saying That crime was the only lawful cause of Divorce did not prejudge it from any greater punishment due to it he only determines about the matter of Putting away and Divorce and he determines thus in opposition to the Jewish practice and the first permission of Moses to them that there is no cause at all upon which a Wife may be put away but where the marriage-bond is dissolved which is only in the case of Fornication and Adultery where the Woman was Then legally dead and ought to be put to death if prosecuted and the fact proved and that all putting away the Wife upon any other ground is unalawful and sinful Now this determination of our Saviour about Divorce might be a satisfaction to men in Conscience and a ground for them to put away their Wives for Fornication and Adultery though the Law of God against Fornication and Adultery to punish it with death was unrepealed and they under the obligation of it and that in three Cases First The Law did not oblige the Husband to go to the Judge and prosecute his Wife for Adultery Nor does our Saviour impose farther in that case then the Law did upon him and therefore such who were Lenes mariti as Joseph was and had no mind to prosecute their Wives to extremity were by this delivered from a necessity either to live with an Adulteress or else to prosecute her to death and are set free in Conscience to give her Libellum repudii and part from her Secondly Supposing a man could not have Justice done upon an Adulterous Wife when he did his best in prosecution of her and this was like enough to be the condition of many a man in that corrupt state of things amongst the Jews at that time and was actually so the execution of That Law having been for a long time forborn and well may we â—hink it should be so for all Capital punishment was at â—hat time taken from the Jews and not in their power so the Sanhedrim confess John 18. 31. 'T is not lawful for us to put any man â—o death in that case our Saviour gives free liberty for â—he Husband to divorce himâ—elf from her and make use of â—hat freedom the Jews took â—f putting away Thirdly Supposing a man were inwardly satisfied oâ— his Wives unchastity and certainly knew within himself she were guilty of Adultery yet had not such proofâ— as would make it out in a Judicial way to gain Execution of the Law againsâ— her in putting her to death in such a case which we may easily suppose might often fall out our Saviour sets the mans Conscience freâ— to put her away and Divorce himself from her In all these cases our Saviourâ— allowing Divorce in case oâ— unchastity was of great uâ—â— Then to settle the Consciences of men who were obliged to the Law and no infringement at all of the Law it self He gives a rule to limit that exorbitant liberty men took to themselves of putting their Wives away and tells them in what case only it may be done which was in case of Fornication and that might very well happen to be the Case though the Law for punishing it with death were still in force and so our Saviour speaks of it as 〈◊〉 〈◊〉 Then accidentally 〈◊〉 〈◊〉 Divorce and putting 〈◊〉 but no way layes any Aâ—â—â—â— upon the punishment the Law inflicted upon it The truth is our Saviour promulged such a general Law in the case as gave a sufficient determination as things Then stood and might satisfie mens Consciences what Then to do in the point of Divorce and was to be also a Rule to the Church about that matter to all future Ages That our Saviour intended it so is very evident from those general grounds upon which it is established and all the circumstances that attend it Nor is there one word in that whole Chapter but is of that nature 't is Evangelical as well as Legal and looks forward to the Gospel-Church to come as well as it contains a direction to the present Church of the Jews Whereever throughout that Chapter our Saviour speaks of any Law in force amongst the Jews even of the Judicial Laws he induceth by his determinations about them that Equity that was moral and perpetual in them and to last for ever in the Church It seems also necessary there should be some direction left by our Saviour in this point or else the Church under the Goâ—pel would have been wholly without any Rule about it and there could never have been upon any terms whatever any such thing as Divorce practised in the Gospel-world for what Moses permitted about it was accidental and temporary and peculiar to the Jews and our Saviour shews us the rise of it and the reason of it and forbids all farther practice of it The Law against Adultery and uncleanness determined those crimes another way and besides That Law of punishing Adultery with death was purely Judicial as much as punishing a diâ—obedient child with death was so and wholly relating to the Jewish Oeconomy 'T is true the offences in these cases were moral and natural evills and do still so continue but That manner of punishing them Then was Judicial and temporary We see at This day 't is not a general established Law no not in the most Christian Nations to punish Adultery with death and therefore our Saviour who was guided by infinite wisdom in all he did spake so as might give satisfaction to every Conscience under the Law at That time upon what terms only to make use of the liberty of Divorce and putting away Then so frequently and commonly practised and also gave a perpetual Rule to the Church that the bond of marriage should be preserved Sacred and upon no account but that of Fornication dissolved and in That case whatever the Laws of particular States might be about it yet the obligation of marriage ceased and the Consciences of men were for ever set free This Doctrine of our Saviour about Divorce established in the 5th
her and so in cases of such turpitude two are no longer one but three or four or more in that marriage-sense of oneness and so the oneness of two in marriage which is the essence of it being dissolved the marriage it self must needs be so likewise nor can it in reason be supposed to continue where the ends of God and Nature in that relation are frustrated and made void And this could not be limited to the Jews nor have a peculiar and single respect to Them being founded upon principles that are common and universal moral and perpetual and wherein the interests of all men concenter so that if it were lawful Then for a Jew or any man to put away his Wife for Fornication upon those grounds upon which our Saviour declares it to be lawful it seems reasonable to think it must continue to be so for every man to the worlds end because those grounds are in their own nature general and perpetual and will Justifie the doing of the thing for ever Fourthly There seems to be no ground of belief that our Saviour should indulge the Jews in this point and frame this exception only for Them and not intend it to others but rather the contrary That he should have particularly restrained Them in this matter more than others because of their enormous practices this way above any other Nation in the World Besides that the general Rule without the exception has a fairer interpretation towards Them than any and our Saviour might well say pointing only to Them Whoever puts away his Wife that is as your manner of putting them away now is and marries another commits Adultery There seems no reason at all to appropriate that exception to Them especially when 't is made upon grounds common to all Fifthly To confine that Rule our Saviour Then gave about Marriage and Divorce as he conjoyned them to the Jews only at That time and to extend it in that conjunction no farther is to confine it to that interpretation wherein 't is most hard and difficult to be understood and deny the effects of it where the interpretation lyes most plain and easie To our selves under the Gospel the direction of our Saviours Law is plain and evident and without any difficulty may be put in execution but in its relation to the Jews and the state of things Then it seems somewhat obscure and without an admittance of a non-execution in some cases of the Law of God Then in force for punishing Fornication and Adultery with death very hard to be understood and therefore 't is no way reasonable to relate the Law solely to Them and deny the benefit of it to our selves The practice in the Christian Church seems to have been regulated by our Saviours direction and Divorces admitted in case of Fornication The Emperour Theodosius who as one sayes of him was Christianus pius Episcoporum quotidiano usus concilio made Laws for a man to put away his Wife in case of Fornication and Adultery and extended it to the very suspicion of it Sufficere Judicavit si mulier viro ignorante vel nolente extraneorum virorum convivia appeteret si ipso invito sine Justa probabili causa foris pernoctaret nisi apud suos Parentes vel si Circensibus theatralibus vel Ludis Arenarum spectaculis ipso prohibente gauderet The Emperour Justinian made many additions to these Laws which although for the manner of them we must suppose accommodated much to the Customes of those times yet were all built upon our Saviours direction in that case St. Jerome is positive That Vbicunque est Fornicatio Fornicationis suspicio liberè uxor dimittitur which yet we must not extend to every Jealous suspicion but suppose spoken Ne ad legum subtilitatem res semper exigatur and must be understood with restriction 'T is no way fit a mans own Jealous apprehension should be always the rule in the case and yet in matters of That nature it may so fall out that a man may be certain of that of which he can make no evident proof St. Austine plainly takes our Saviours direction Then to be the rule Now in this matter in his 89th Epistle says he Dominus praecepit ne quisquam uxorem dimiâ—tat excepta causâ Fornicationis Divorce à mensâ toro seems to be a fiction in the Canon-law and to have no ground neither in any Law of God nor in reason Not in any Law of God for wheresoever divorce was allowed by any Divine Law it was a total Divorce and the persons were allowed to marry again It was so amongst the Jews whoever was Then Divorced might go to a second marriage It is so in what our Saviour sayes he evidently implyes it putting away and remarrying are conjoyned whoever sayes he puts away his wife and Marries another except for the cause of Fornication c. where the implication is evident that in that case of Fornication he may both put away his wife and also lawfully Marry another the first marriage being dissolved the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 constantly used by our Saviour in the New Testament for Divorce and putting away implyes a nulling of the marriage and discharge of the obligation and signifies to absolve loose release discharge so that if what our Saviour hath said about Divorce in case of Fornication be a rule to the Church Now 't is plain the Divorce allowed by him in that case admits of a second marriage If it be not a rule to the Church Now then there is not the least positive allowance under the Gospel for any Divorce at all and if so all Divorces a Mensâ Toro are without any Divine warrant Not in reason for whatsoever can be sufficient to Justifie a Divorce from all the ends of Marriage must needs be sufficient to Justifie a Divorce from the obligation of Marriage the one being but in order to the other It seems no way reasonable to bring any man into that condition that the obligation of marriage should remain and the helps and advantages of it be taken away 'T is to divide what God hath joyned for he never appointed the one to go without the other It seems very undecent to say two shall continue one flesh and yet be excluded from all converse each with the other If the essential bond of marriage be broken as in fornication That gives a rational ground for a Total divorce If it be not while the bond continues unbroken the duty ought to be performed there appears no ground to suspend the one and continue the other The practice of marrying again after Divorce hath been frequent The Greek Church practise it generally Grotius says some Christians have thought better to forbear it Quam sententiam says he ex bonitate peculiari magis ortam quam ex communi receptaque lege tum ex aliis tum ex Tertulliano apparet qui non uno loco ostendit solitos
expect That reformation than from Christs own mouth He allows not the Jews in any one Title of their corrupt practice but exactly reduceth them to the rule and in this case he plainly tells them the dispensation they had from Moses was not the rule but the law of Creation and Gods first institution was the rule and that admits of no exception but this of Fornication 't is not reasonable to think Christ should indulge them for the hardness of their hearts in any thing because he came to reform every thing but especially not in this matter because he plainly repeals what Moses had done in it before upon that ground Animadversion WHere Fornication is committed the Union is dissolved Gratis dicitur For may not the innocent person remit the fault of foul lust to the other deductosque jugo cogat alieno may they not live together as Man and Wife which could not be if the union were intrinsâ—cally dissolved As the Prophets do often challenge the Jews for spiritual Fornication of Idolatry yet the Lord took them again to him for his people and it hath a great Evangelical consideration in it that for any trespass while the offended and the offender live together in this world there may be a way left for reconciliation and to take that admonition sin no more lest a worse thing come unto thee but remarrying another while the offender lives excludes all possibility of charitable pardon Answer When we say the vinculum matrimonii is dissolved we speak not of actual dissolution but virtual cause of dissolution In this and in all other obligations arising from contract when the bond is broken 't is a rule Potest innocens cedere Juri suo and if the offended will not take the forfeiture the bond continues Adultery does not ipso facto dissolve the marriage but gives right to the innâ—cent party to dissolve if he please puts the power into his hand which he may ad libitum make use of or not for as Divines say Divortium non est praecepium sed tantum permissum probatum 't is a liberty given in favour to him that is wronged in the matrimonial contract which he is not bound to make use of unless he will God seems to intimate so much in the Prophet Where is the Bill of your mothers divorcement there was cause enough the Covenant was broken on their part yet God pleased to forgive it and not take the forfeiture no Bill of Divorce was actually given if it had they could have returned no more the separation had been irremediable Now that Fornication in this sense is a dissolution of the marriage-bond that 't is a sufficient ground to dissolve it if the innocent party please will appear both from Christ permission about it and from the nature of the thing it self First From Christs permission about it he plainly admitted Fornication to be a good ground of Divorce and permitted remarriage upon that Divorce let his permission be to whom it will our Saviour would never have given liberty to any man to remarry upon Fornication unless That had dissolved the first marriage for it had been to permit a positive sin upon those very grounds upon which our Saviour himself in that very place does establish the bond of marriage If the bond of marriage can be broken in no case our Saviour would never have allowed putting away and remarrying in any case Secondly From the nature of the thing it self it cuts the very knot of the marriage-contract which is that two shall become one flesh and in that case two are not one flesh which they covenant to be and are to be in a chaste and peculiar enjoyment of each other in the marriage-bed for St. Paul sayes He that joyns himself to an Harlot is one flesh with her By the marriage contract they have resigned their bodies over each to other and have not power in that respect over their own bodies In case of Fornication there is the highest breach of That obligation All other things whatever relating to marriage may be enjoyed upon other accounts and in other relations but only the body and the concerns of it and therefore when the Faith about the body is broken Faith is broken about that which is the peculiar property of marriage and that which does formally distinguish it from all other relations A charitable pardoning spirit is very suitable to the Gospel and becoming a Christian but I think a man ought not to be imposed upon in this case where a man is wronged and Christ hath provided a way to right him justice in That case must not be denyed him if he require it A man may if he please forgive an unclean wife and continue to live with her But I incline to Calvins opinion that he will do much better to put her away and cleanse his house nay his bed from defilement and wickedness Animadversion YOu say It is not reasonable that the obligation of marriage should remain and the helps and advantages be taken away why what if the man or woman be taken Captive Incur an irremediable diseass or the Wife though chaste will not render due benevolence or her Joynture she brought be consumed by fire Here are helps and advantages substracted yet no wedlock broken Answer I conceive it not reasonable any thing should be thought of validity to take away the ends of marriage that is not sufficient to dissolve the obligation because they are relatives intrinsecally conjoyned each to other the ends and advantages of marriage ought never to be suspended where there is not sufficient ground to dissolve the bond of marriage because the bond being entred into for the sake of those advantages that belong to it by the Law of God and by the Law of Nature those advantages ought never to be denyed where the bond is continued our Saviour saith Whom God hath joyned let no man put asunder that is not put asunder as God hath joyned them and he has joyned them so that the duties to be performed and the obligation should go together whoever divides in That kind I think falls under the Text if we ground divorce upon our Saviours exception That is plainly for a total Divorce in that case of Fornication and remarriage after He divides as God has joyned from duty and obligation together A divorce à mensa toro seems unreasonable because unequal and 't is unequal because the innocent party is as much a sufferer by That as â—he nocent and instead of beâ—ng relieved is farther punished and all the help a man has by this partial divorce that is abused and betrayed by an unchaste wife is to be put â—nto a kind of Matrimonial Purgatory and be rendred hereby uncapable to enjoy â—ither the advantages of a marryed man or the freedom of a single man When by providential disâ—bilities in either party the duties of marriage cannot be performed yet the marriage-bond continues unbroken though the