Her former Husband which sent her away may not take her again after that she is defiled for that is abomination before the Lord. Math. 5.31 It hath been said Whosoever shall put away his Wife let him give her a writing of Divorcement 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 Divorcèd committeth Adultery Math. 19.3 The Pharisees also came unto him tempting him and saying unto him Is it lawful for a man to put away his Wife for every cause And he answered and said unto them Have ye not read that he which made them at the beginning made them Male and Female And said for this cause shall a man leave Father and Mother and shall cleave to his Wife and they twain shall be one flesh Wherefore they are no more twain but one flesh What therefore God hath joined together let not man put asunder They say unto him Why did Moses then command to give a writing of Divorcement and to put her away He saith unto them Moses because of the hardness of your hearts suffer'd you to put away your Wives but from the beginning it was not so Here it is plain Christ refers them to the Law of Nature as the Law which was greater then the Politick or Positive Law of Moses And this was only tolerated by Moses for the hardness of their hearts and though it were lawful for Moses or any other Legislator to tolerate a lesser Evil which he was not able by reason of the hardness of their hearts to restrain yet was it not lawful for the People to practise it but they should be punished for it by God though they were not by Moses And hence doth manifestly follow That all those Laws which were mala in se and contrary to the Law of Nature which was from the beginning though Tolerated by Moses who was not able to reform them yet were they not properly the Law of Moses but wicked Customs which they received from Aegyptians Syrians Canaanites and other Nations and ought not to have been practised by the Jews then nor by the Christians now Of Laws taken from the Customs of Idolatrous Nations for a small tast take these that follow Exod. 21.2 If thou buy an Hebrew Servant six Years he shall Serve and in the seventh he shall go out free for nothing Verse 4. If his Master have given him a Wife and she have born him Sons or Daughters The Wife and her Children shall be her Masters and he shall go out by himself Mahomet's was more fair then this for he being Amorous of the Wife of Zeid his Slave freely infranchised him though he were not bound to do it as the Hebrew Master was and besides his infranchisement gave him Money for his Wife And thereupon saith God appointed him to Marry her after she was Repudiated to the end that true beleivers might do the like and not think it an Error but what God hath appointed Alcor Cap. 33.260 And David did far worse then Mahomet as to the Wife of the Subject Vriah his Example therefore is as unfit a Rule to judg Marriage by as that of Moses and Mahomet Levit. 19.20 It is said And whosoever lieth carnally with a Woman that is a Bond-maid betrothed to an Husband and not at all Redeemed nor Freedom given her she shall be scourged they shall not be put to death because she was not Free And he shall bring his Trepass-Offering unto the Lord unto the Door of the Tabernacle of the Congregation even a Ram for a Trespass-Offering And the Priest shall make an Atonement for him with a Ram of the Trespass-Offering before the Lord for his sin which he hath done shall be forgiven him 1. This Law is unjust for it punisheth the weaker Vessel who is a poor Virgin with scourging and only fines the rich Lecher a Ram so he may commit Whoredom with as many betrothed Virgins if not Free-women for the price of a Ram apeice 2. Here is nothing provided for satisfaction of the Damage of the Master for the abuse of his Servant and dishonour of his Family nor of the Husband to whom she was betrothed but let him bring a Ram his sin shall be forgiven him toties quoties as 't is the Custom of some old Pagan Manners and Manours if the Copyhold Widow be unchast she shall forfeit her Copyhold unless she bestride a Ram and ride to the next Court and say these Words following For my Incontinence I do this Task Therefore to have again my Land I ask Numb 21.14 17. Notwithstanding the Midianitish Women had quarter given them and were Captives yet in cold blood Moses more barbarously then the Heathens themselves used to do commands the Souldiers to kill every Male amongst the little ones and kill every Woman that have known Man by lying with them but all the Women-children that have not known Man by lying with him keep alive for your selves And Deut. 21.11 The Souldiers are licensed when they take Captive Women after some idle Ceremonies of cutting their Hair and paring their Nails to lye with them and turn them off again when they pleased which examples though from Moses who was no more infallible in this then David in the act of Vriah's Wife of cruelty and uncleanness are not to be followed but abhorred of all Christians The Jews had likewise a custom of Contracting and Espousing the parties before Marriage of the great inconveniences of which shall be spoken after under the proper Title The ways of Marriage of the Jews Jewish Ceremonies of marriage not appointed by Moses Law Saith Moses de Cotsi was either with Money or Instrument or Copulation with Mony as when they bought one to be their Wife with Instrument as when done by Contract in writing by Copulation as by lying with any single Woman though no Consensus yet Concubitus fecit Matrimonium Especially if Conception followed as appears in the case of Jacob and Leah where there was no Consensus on Jacob's part but only Concubitus Conceptio At the Jewish marriage a Rabbi marries them and if the Bride be a Virgin Wine is to be drunk in a narrow-mouth'd Glass and if she be a Widow in a broad-mouth'd Glass and an Egg must not be forgot to be thrown at the Bride and broken to foretell an easie delivery The manner of the Jewes Marriage is The Bridegroom wears about his Neck an Hare-cloth the end of which the Rabbi puts on the Bride's head after example of Ruth who desired to be cover'd with the skirt of Boaz then the Rabbi takes a glass full of Wine and gives it the Brideman and Bride that they may drink then he takes the Bridegroom's Gold Ring and asks of the standers by if it be good and worth the money given for it then puts it on the Bride's finger then he takes another glass
unto the Elders I gave my Daughter unto this Man to Wife and he hateth her and lo he hath given occasion of speech against her saying I found not thy Daughter a Maid and yet these are the Tokens of my Daughter's Virginity and they shall spread the Cloth before the Elders of the City and the Elders of the City shall take that Man and chastise him and they shall amerce him an hundred Shekels of Silver and give them unto the Father of the Damsel because he hath brought up an evil name on a Virgin in Israel But if this thing be true and the Tokens of Virginity be not found for the Damsel then they shall bring out the Damsel to the door of her Father's House and the men of the City shall stone her with stones that she die because she has wrought folly in Israel to play the Whore in her Father's House So shalt thou put away Evil from amongst you This Custom as many others the Jews learn't of the Heathen Nations and was tolerated amongst them for hardness of their hearts Leo Afer relates amongst the Inhabitants of Fez in Africk the same wicked Custom to be in use and that before the Wedding Feast the Bridegroom ought to deflower the Bride and then they come and shew amongst the Guests a filthy defiled Napkin with great Exultation and a loud Voice Proclaiming the same in as filthy words and behaviour But if this cannot be shewen it spoils the Wedding and the Woman is turn'd away with great disgrace The like they do at Zant where the Wedding Sheets are always kept And amongst the Persians where if the Woman fail to give this Sign they cut off her Ears and turn her home with great disgrace And the like in divers other Heathen Nations which Custom both with Heathen and Jews is 1. very immodest and filthy 2. very cruel and unjust for as Levinus Lemnius and other Physicians and Anatomists hold these Signs are extreamly fallacious and neither shew who is or who is not a Virgin whereby many innocent Persons may be destroyed and many wicked be justified and therefore is no fit Precedent to be followed by Christians Tryal of Jealousie We find likewise the Trial of Jealousie prescribed Numb 5.18 And the Priest shall set the Woman before the Lord and uncover the Woman's head and put the Offering of Memorial into her hands which is the Jealousie-Offering and the Priest shall have in his hand the bitter water that causeth the Curse And the Priest shall charge her by an Oath and say unto the Woman If no man hath lain with thee and if thou hast not gone aside to uncleanness with another instead of thy Husband be thou free from this bitter water that causeth the Curse But if thou hast gone aside to another instead of thy Husband and thou be defiled and some man have lien with thee beside thy Husband Then the Priest shall charge the Woman with an Oath of Cursing and the Priest shall say unto the Woman The Lord make thee a Curse and an Oath amongst the People when the Lord doth make thy Thigh to rot and thy Belly to swell And the Woman shall say Amen Amen And the Priest shall write these Curses in a Book and blot them with the bitter water And shall cause the Woman to drink the bitter water that causeth the Curse In Loango in Africk if any is suspected of Adultery Witchcraft Theft or other Crimes there is a little Tree with a small Root like a White Carrot called Imbunda on accusation the Priest assembles the accused Parties and scrapes a little of the Root into water which makes it as bitter as Gall. One Root will serve for the Tryal of an hundred the Priest beats it together with a Plantan stalk and hits every one after they have drunk with certain words If they can walk by till they make Urine they are free but if they grow dizzy they are knock'd o th' head and dragg'd thence when dead The Matimbas have the same Tryal of Adultery and other Crimes with the same Root made into bitter water the nature whereof is if it be given in too great a Dose it stops the Urine and flies up into the head whereby the Party becomes dizzy which if he be here the Execution something differs from the former and all the People presently fall upon them and cut them in peices with Knives At Morumbay in Africk if any is suspected to be guilty of Adultery or any Crime there is an Idol in a great Basket called Morumbay and they are compelled to come thither when accused and each to kneel down and say Mene quesa Cabumba Marumba that is I come to make trial of my Innocence And if he is guilty he falls down dead and if he is free he is free'd Andrew Battle saith he saw six or seven in his time that were put to this Trial. Amongst the Guineans the Priests have a Drink call'd Enchion Kenow which the Inhabitants beleive hath such a force and virtue from their Fetisso or God that if any Woman suspected of Adultery by her Husband and brought to drink thereof for Trial if she be Guilty the Fetisso will kill her which makes the Woman accused if Guilty rather compound and assent to be Divorced from her Husband then run the hazard of the Fetisso on a Trial by that drink The Americans for the most part if they find not their Wives Virgins or if after they commit Adultery Divorce them wherein they far excel these shameless and devilish Trials of Jews and Ethnicks and the Water-Ordeal and Fire-Ordeal heretofore used by Christians of walking over Red hot Plow-shares bare foot or the newer fashion of putting Women to Self-accusation Canonical Purgation and Compurgation in Episcopal Courts Likewise amongst Christians I say this simple plain proceeding of private Divorce both amongst the Guineans and Americans by the light of Nature far excels all the said Tryals by Jewish Pagan or Popish Priests Lastly It is clear from Christ 's disallowing the Bill of Divorce by the Husband except for Fornication and his allowing it by the Husband when there was Adultery He disallows the Laws of Tryal of Virginity and Tryal of Jealousie as well as he disallowed the Bill of Divorce without lawful cause For the Tryal of Virginity and Jealousie is far worse and shews greater hardness of heart then the Bill of Divorce in regard the Bill of Divorce if the Husband find any uncleanness or dishonesty in his Wife only puts her away and saves both her Honour and Life but the Tryal of Virginity and Jealousie permits the man first to lie with her and perhaps to get her with Child and then to stone her or with bitter water to poison her and her Child together wherein the Turk is not so bad as the Jew For though he buy his Wife if after he finds her not as she should be he will Divorce her and though he lose
just cause by Divorce one of another without publishing the cause and if there be no cause amongst the Children by taking away as much of their Portions as the offence deserves and giving the same to the innocent Children and by good instruction reproofs and virtuous example of the Parents which will prevent more offences in Children then Tribunals can ever reform though they have Witnesses So Lycurgus by commanding in his Laws That all Captains of Armies and Priests of Temples should marry and that Husbands themselves should come to their Wives Furtim verecunde and the Children be modestly Educated left Sparta so clean from unchast demeanour that when Geradas an old Spartan was asked by a stranger What was the Punishment of Adultery in Sparta for he could find no Law made by Lycurgus concerning that Crime Oh Friend says he There is no Adulterer with us When he reply'd But what if there should be any Geradas told him He should pay a Bull so big as should be able to stretch his Neck over Taygetus and Drink of Eurotas when the other laughing said There is not such a Bull to be found Neither quoth Geradas Is an Adulterer to be found in Sparta where Riches Luxury and wantoness of Apparel are counted a disgrace and Modesty and Obedience to Magistrates an Honour Where the Seminaries of Vices are not permitted how can Vices grow First Therefore as to Man and Wife as Bodin lib. 1. cap. 3. says Nothing seems more pernicious then to compel the cause of Divorce to be shewn before a Judg for in so doing the honour of one or both Parties is hazarded which would not be if neither of them were compel'd to prove the same before a Judg as Plutarch in Alcib relates That when the Wife of Alcibiades went to complain of him before the Judg he came after her into the Court and took her by force and carried her away home on his Shoulders Ne Secreta Fori Panderet whereat the Judg only smiled The Hebrews likewise used to make their Bills of Divorce without a cause neither is it prohibited by Christ if there were a true cause to put her away by private Bill without publick Tribunal or Judg for such were all the Bills of Moses and no publick Judg required to judg of the Cause but only the Conscience of the Party And Joseph having a just cause of suspicion against Mary his Wife did not bring her before a Judg and is commended for so doing to be a just man as Matth. 1.19 is said Then Joseph her Husband being a just man and not willing to make her a publick Example was minded to put her away privily So doth Plutarch in Aemil. relate of Paulus Aemilius Who according to the Custom of the Romans shewed no cause of putting away his Wife but affirmed her very honest wife and nobly descended and by whom he had also many fair Children but when he was press'd by her Friends to shew the cause why he would then Divorce he shewed them his Shoo which was very handsomely and well made and yet says he None of you know but my self feeleth where it wrings my Foot By which doing the Woman is not dishonour'd but may marry with another suitable to her quality and the same liberty had the Wives to divorce themselves from their Husbands without proving or shewing any cause before a publick Judg. This likewise preserves the repute of the Children who though innocent will likewise perpetually bear the reproach if the dishonour either of their Father or Mother be publish'd before a Judg. And further as to drawing the secret offences of uncleanness of Children especially of Daughters before a Judg who are under the Family Jurisdiction either of Father or Mother or Husband the same is an undoing to those who offend for though they never so much repent and amend yet there can be no repairing of their shame or name when publish'd and the innocent who are the Father and Mother and Husband and the other Children the dishonour can never be taken again from them Seneca therefore who in all other things was a great honourer of the virtue of Augustus yet blames as a great oversight in that wise Emperour that he punished the Adulteries of his Daughter Julia publickly by Banishment Quae potius saith he Principi tacenda quà m vindicanda sunt Secondly It makes every petty difference between Man and Wife irreconcilable and heightens Contention from a small spark by blowing it abroad to so great a flame that it is at last unquenchable for the publishing of many things neither criminous nor sinful may affect some modest Natures with as deep a sence of disgrace as those that are false as much as those that are true and when once published cannot by repentance be again revoked but may cause such hatred between the Parties as will never again admit them to live together Thirdly Where offences are not published they oft times may with honour be forgiven and the Parties reconciled which if publish'd cannot So Antonius Pius forgave the Adultery of Faustina and would not draw it to publick Judgment to prevent his own shame And Ael Spart writes That the Emperour Adrian did the like to his Empress who though he suspected yet put not away but only removed such Courtiers from his Court as he suspected Of the Law compelling Persons Married though mortal Enemies to Cohabitation Another great mischeif is in the Ecclesiastical Laws they compel Cohabitation of Men and Women when they are mortal Enemies and take off Exequenda Matrimonialia Officia and due benevolence when one insidiates for the life of the other of which take Bodin further Fol. 19. but says he If the Cause seem not sufficient to the Judg which he intends the Cause alledged of Divorce to an Ecclesiastical Judg or be not well proved it is therefore meet to inforce the Parties to live together in that Society which is of all other the straightest Test having always the one and the other the object of their grief still before their Eyes Truly says he I am not of that opinion for seeing themselves brought into extream servitude fear and perpetual discord hereof ensue Adulteries and oftentimes Murthers and Poisonings for the most part to men unknown And for this cause free Divorce to both Parties and non-Cohabitation was permitted by the Roman Laws not out of wantonness but out of the greatest necessity and Piety for preservation of those ends for which Marriage was instituted with the least danger and dishonour that might be to either Party wherein they must of necessity suffer if either free Divorce be tolerated or the examination of the causes of the same drawn to publick Tribunals One cause Cato the Censor complains of for which the freedom of Divorce and non-Cohabitation ought to be permitted was because he used to say That all Adulteresses were Poisoners and this likewise appears by Valer. Max. lib. 2. p. 8. where it is thus
marriage yet could not they avoid being spotted by slanderous Tongues to be like the Heathen Gods lovers of Women whereas fame it self dared not belye these Heroick Ladies who defended their Honour with their Blood But to draw to an end of this Section There appear amongst the nations many good many indifferent and many most wicked Laws and Customs concerning Marriage the height of the Examples and the Authority both in good and bad being only humane The same can be neither obligatory nor satisfactory to the Conscience neither ought marriage to be judged by them Divorce by mutual assent It was by the Twelve Tables allowed That by Mutual consent the parties might Divorce themselves one from another Quia unumquodque dissolvitur eodem modo quo conflâ—tum est as may be collected from Cicero Philip. 2 l. pern ad leg Jul. de Adult li. 2. 7. de divorcio ex Apul. Ambros Epist 65. Notwithstanding which there was no Divorce followed in Rome for the space of 520 years There have been examples of the practice of this amongst Christians and Christ's words prohibiting putting away which implies force seems not to include a free or voluntary separation Of examples of this amongst Christians an express form appears in Marculfus his Formula lib. 2. cap. 30. Dum inter illum illam non charitas regnat sed discordia placuit c Seeing between him and her the Charity according to God doth not reign but Discord so that they cannot live peacably together it is agreed by the consent of both that they separate from one another and accordingly they have done as others Leg. Rom. cap. 19. and Novel Instit 117. These Canons have been made to change and likewise other Imperial Laws Divorce free for Women a well as Men. Of Women departing from their Husbands 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is the word for it on the Woman's part Sen. de Benef. l. 3. c. 16. Numquid jam ulla repudio erubescit And Nobiles foeminae non consulum numeroâ—sed maritorum annos suos computant They departed and married again every year Apud Romanos Graecos mulier quam vir alteri potest dicere ut res suas sibi habeat quin nomina rei illius propria jure Attico prodita erant ut si vir discederet ab uxore hoc diceretur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 si mulier à viro 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Jos Scà liger Amongst the Romans and Greeks both the Woman and the Man might Divorce one another And by the Athenian Law they had proper Terms for both as if the Man left his Wife this was called a Dismission Dismission and Desertion if the Woman left her Husband this was called a Desertion So by the case put by Christ of a Woman it appears then that Women were Divorced as well as Men. The East Indians if they are but Jealous of their Wives will kill them and bring three or four witnesses to Swear That strange Men entred into their Houses by night or at unaccustomed times who had their pleasure of their Wives or in another sort as they will devise it whereby the Husband is streight discharged of the Crime of killing his Wife by the Laws both of Portugal and Spain and there are every year many Women without number dispatched by their Husbands and none think it strange nor make wonder at it because of the Custom and the Women are never the more frighted from their Adulteries but will say They can die no better death then by such a Law Linschot And may presently marry another Wife The Wives likewise frequently poison their Husbands which as some say was the original of their custom not to survive their dead Husbands but to burn them And the causes of Jealâ—uâ—e can by neither be published to the Magistrate with safety or hâ—nour either of Wife or Husband Were it not therefore far better for the Innocent party or both by assent to separate themselves privately and marry again then so live in danger of their lives one of another and more agreeable to the Law of God and Nature and the ends of marriage then for them if the Wife offends the Husband to have power to kill her while alive or if not offend to kill her by burning with him after dead or the Woman be tempted to prevent both by poisoning her Husband were it not better to be put away privately as Joseph did his Wife then the fault publish'd and Divorces would not be so frequent if left free to the parties for who would marry again a Man or Woman who had Divorced themselves from their first marriage without cause Augustus Caesar following the vicious policy of those times to strengthen himself by marriage of Women repudiates his Wife Scribonia the same day she was deliver'd of Julia and married Livia being great with Child by Tiberius Nero her Husband still living who was deliver'd of Drusus three Months after Dio. Tiberius by assent of Augustus repudiateth the Daughter of Agrippa being then with Child and marrieth Julia the Daughter of Augustus Dioclesian the Emperour married six Wives in a short space and repudiated them all great with Child Oros And having associated to him because of many Travels in the Empire Maximianus they both meet at Milan to create new Caesars to whom they may commit their Forces where they chose Constantius Chlorus and make him Governour of Britain and Galerius whom they make Caesar likewise to defend Eastern Europe These new Caesars they compel to repudiate their former Wives and Galerius married Valeria Daughter to Dioclesian And Constantius repudiated his Wife Helena by whom he had Costantine after call'd the Great and married Theodora Daughter-in-law to Maximian by whom he had after six Children Dioclesian assumeth Divine Honour and he and Maximian triumph yet they after resign the Empire and retire themselves to Galerius and Constantius after Constantius createth his Son Constantine Caesar and dyeth Against him was set up Maxentius Son to Maximian and Maximian giveth his Daughter Fausta to Constantine Herod Antipas repudiateth his Wife Areta who was Daughter to the King of Arabia and married Herodias Wife to his Brother Philip and Daughter to his Brother Aristobulus Joseph Anno Christi 1028. Constantine the Emperor being sick the States put Romanus Argyrus to his choice either to repudiate his Wife and marry the Emperor's Daughter or to lose his Eyes his Wife to save him from danger entereth into a Nunnery Romanus Argyrus is made Emperor and marrieth Zoe the Emperor's Daughter and banisheth Theodora her Sister Zon. Zoe falleth in love with Michael Brother to one of the cheif Eunuchs they strangle Romanus in a Bath he marrieth Zoe and was much troubled with the Dropsie and Falling-sickness Michael neglecteth the Emperess and refraineth her Bed shaveth her and banisheth her The people inforce him to recal her and put out his Eyes Cedr Zoe marrieth Constantius Monomachus who keepeth a Concubine
related Veneficii questio moribus Legibus Romanis ignota quam plurium matronarum patefacto scelere orta est quae cùm viros suos clandestinis insidiis veneno perimerent unius Ancillae indicio protractae pars capitali judicio damnata centum Septuaginta numerum compleverunt An Inquisition was made concerning Poisoning being an offence not known to our Manners or Laws and the wickedness of many Matrons being disclosed who by secret Treachery had kill'd their Husbands by Poison they being drawn forth by discovery of a Maid that part of them who were condemned to death amounted to the number of One Hundred and Seventy A great number for one City at one time and was no doubt not one of the smallest causes why Divorces grew so frequent in after-times not as is vainly pretended out of wantonness but of necessity Whereas if this private way of Justice and defence should not be tolerated to Families without publick litis contestations neither the honour or safety of any Family or Persons therein could be preserved and such as had a mind to separate if they could not do it but by publick Judgment would likewise either as the Muscovites are said to do Hire some false Witnesses or Knights of the Post to defame one another or oftentimes if that will not do to destroy the lives of one another or before the Party can make publick proof Poison or otherwise kill him whereby after it will be too late as it was in these 170 Husbands for any complaint to be made to the publick and the Wives are likewise in as great danger if they have not the same liberty of providing for them themselves on the first discovery of danger Had it not been better for all these murther'd Husbands and Wives to have parted on either side then to have acted such a Tragedy together So Aegisteus corrupting Clytemnestra to Adultery thereby got her concurrence to the death of her Husband Agamemnon And Sejanus having received an affront from Drusus plotted no other way to destroy him but by corrupting his Wife as saith Tacit. Annal. lib. 4. Cuncta tentanti promptissimum visum ad uxorem ejus Liviam convertere hanc ut amore incensus Adulterio pellexit ad conjugii spem consortium Regni necem mariti impulit So the Brother of Lewis the First King of Hungary was strangled by his Wife and she married a new Husband Lewis the King goeth into Italy to revenge his Brother's death she and the new Husband fly to the Pope who protects them Here neither the corruption of Clytemnestra nor the Wife of Drusus nor the Hungarian Hang-woman could have been discovered before a publick Judge till it had been too late What are therefore such Elccesiastical Laws and Judges who compel such secret and deadly Enemies to Co-habitation in one House but accessary to their Murders and who forbid them to marry others but accessary to the great sins of their Fornications and Adulteries Divorce by consent Authent Col. 23.140 The Title of the Law is Vt consensu Matrimonium solvi potest And the Law it self ends with this Reason Eos siquidem qui violento affectu odioque correpti fuerunt perquam difficile est reconâ—iliare contingit enim ut ex his nonnulli ad mutuas insidias procederent venenisque aliis quibusdam quae lethalia essent uterentur in tantum ut saepe liberi qui ipsis communiter nati essent eas in unam candemque voluntatem conjungere non potuerint Of the Law of Divorce à Mensa Thoro. Haddon in the new draught appointed in the times of Henry the Eighth and Edward the Sixth for Reformation of Ecclesiastical Laws expresly abolisheth Divorce à Mensa Thoro in these words Mensae societas Thori solebat incertis Criminibus adimi Conjugibus salvo tamen inter illos reliquo Matrimonii jure quae constitutio cùm à Sacris literis aliena sit maximam perversitatem habeat malorum sentinam in Matrimonium comportaverit illud Authoritate nostra totum aboliri placet To prohibit Divorce à vinculo matrimoni for adultery or other Lawful cause and to prohibit the same to be done privately between the parties themselves without drawing the cause to publick Tribunals is to contradict Christ himself who speaks of a private Divorce by a Bill both from the Husband and the Wife according to Moses's Law and not a publick Sentence of any Judge and by the exception of uncleanness allowed the Innocent party to marry another but the Pope's Law which prohibits it doth it to no other end then to get the gains to his Courts by the Jurisdiction of Divorces and to compel the parties either to make use of his Stews whence he gathers his common Rents or to pay him a private Taxa Camerae for such Women as he will allow when he hath tied him from his Wife by the Divorce Neither doth Christ take the private Jurisdiction from the Husband or Wife of Divorce given by Moses but only prohibits to use it without a Lawful cause In the same manner did the Laws of the Romans allow the same Jurisdiction both to the Husband and the Wife as appears by many examples By the Law of Scotland Divorce for Adultery is allowed à vinculo matrimonii and the parties may marry again But by the Laws of England the parties can neither be Divorced à vinculo matrimonii nor marry again which is touched by Craig Feud 269. Apud Anglos Matrimonium ob Adulterium non dirimatur sed tantùm separatio à Thoro Tabula permittitur which is certainly clean contrary to the Law of God and the Doctrine of Christ Notwithstanding which our Episcopal Canons rather follow the Pope then Christ and are so outragiously oppressive on Innocent parties Can. 4.7 that in all such Divorces they order Bond and Sureties to be given not to marry again during each other's life which is as before shewen a Doctrine of Devils forbidding to marry where God hath not forbidden Of the Custom of Protestants marrying with Papists There is no Religion in the World established by any wife Legislator which he desires to perpetuate but the chief means he takes care of to effect the same is by his Law to prohibit his followers to marry with Women of another Religion for they both seduce the Fathers and the Children And while even in their Nursing and before they have learnt their Mother-tongue they will with their Milk be so far season'd with Old-wives Fables as the greatest Doctors of truth will not often-times be able all their life after to get out again Moses as to this is very strict and positive Deut. 7.3 Where speaking of the Idolatrous Nations of the Land saith Neither shalt thou make Marriages with them thy Daughter thou shalt not give unto his Son nor his Daughter shalt thou take unto thy Son for they will turn away thy Son from following me that they
is manifest that the Canon of the Council of Trent which nulls all Marriages except before a Priest in a Temple and the Certificates of Bishops and Penance gives a general License for Money either the Taxa Camerae of the Pope or the Commutation Money of the Bishops to have all Women common for by decreeing no Marriages shall be of Validity except with a Woman brought before a Priest and a Temple they null and dissolve all Marriages made by the Moral Law of God and the Obligations of them whereby if any man lie with an Hundred Women and get them with Child if he hath been so cunning as not to lead any of them to a Priest in a Temple there is no obligation on him to own any of these for Wife or Child in regard the Moral Law of God is abolish'd by the Papal and Episcopal Canons and made of no effect by their Traditions and wicked Customs and the Party is left free to lie with as many more and to have common amongst them Sans nombre if he will but give them Money for their Hire and the Bishop Commutation Money and what is this but to have Women common to the Rich and to exclude the Poor who have not Money from having any But this would be prevented if the Bishops would as they ought to do compel the man who gets a Virgin with-Child to marry her according to the Moral Law of God and the express Precept of Scripture Exod. 22.16 If a man entice a Maid who is not betrothed he shall surely endow her to be his Wife Which enticement is as well intended by Money as Wantonness and the Law the same as well in case of Force or Rape as enticement but more Penal Deut. 22.28 If a man find a Damsel that is a Virgin which is not betrothed and lay hold on her and lie with her and they be found then the man that lay with her shall give the Virgins Father Fifty Sheckels of Silver and she shall be his Wife because he hath humbled her he may not put her away all his days This is the clear Moral Law of God and the clear Texts of Scripture and there is by them laid an indissoluble obligation on the man according to the old Form of Espousal Se post Concubitum invitam non deserturum and if there is a Child born by reason of the further Obligation of Parents laid on them by the manifest Act of God it is not in the Power of these Virgins who are now become Mothers will they nill they nor of any human Power to dissolve that which the Divine Power by giving birth to a Child hath once established But Popes and Bishops are so far from compelling these deflowrers of Virgins to Marry then and these begetters of Children to acknowledg them according to this most clear and just Law of God and according to the Obligations both Ex Contractu Reali which are the lying with them and getting them with-Child and Ex Malesicio Reali which are the same that they like the Giants who would storm Heaven Oh Hellish presumption Level all the Canons they have against the Divine Laws of God himself and with them tear in pieces all Obligations laid by them of Husbands to Wives and Fathers to Children that Women may be in common and Children in common Nullius Filii Populi Filii confounding Heaven and Earth and all Divine and Human Rights and subverting the course of Nature as far as they are able to obtain to themselves the inexhaustible Treasure and invincible Power over Princes and People over Emperors and Kings incident to the Jurisdiction of Marriage Filiation and Succession But how easily are these Giants quell'd and all the mischiefs ensue by their letting the World loose to Community of Women and Community of Children 1. 'T is but to give liberty to those who Marry to Marry according to the Moral Law of God and to free them from compulsion to the Ceremonial Law of a Priest in a Temple 2. 'T is but to give Power to the Temporal Judges and Magistrates to compel such as have had Children by Virgins and desert them to acknowledg those Virgins according to the clear Texts of Scripture to be their Wives and not to leave them and their Children in common which ought to be their inclosed Propriety Whence would ensue that if any man saw that whatsoever Virgin he did first touch he should be compell'd to take he would follow the Poets Counsel Multis è millibus unam Elige cui dicas tu mihi sola places Ovid. He would certainly choose unless corrupted by Money one whom he liked above all others and having so fair a Garden inclosed of his own choice he would be the more unlikely to run to graze in a Common or if be should he might find his expectation much deceiv'd for the same Justice having been done by the Magistrate on all others as well as himself he would find no Common to run in but every Quillet inclosed nor should a single Woman be let would she take him where another had Right to claim him As to Fornication Adultery Stews Brothels how great a cause the compulsion of Publick Appearance in Marriage before a Priest in a Temple by prohibition of Private Marriage is the same is shewn already before P. 107 and as to the dissemination by Fornication Adultery Stews and Brothels not only of that miserabile scortorum flagellum the Lues Venerea the inseparable concomitant of those Vices and Places but likewise of all other Epidemical contagious and deadly Diseases amongst the People the same is notorious but Episcopal Courts get as much by the Dead as the Living and more by the Vicious than Vertuous It is their Interest therefore to continue it so long as they can It will be objected against the giving Power to Temporal Magistrates to compel every Man who hath a Child or Children by a Virgin to acknowledg her for his Wife and her Children his on Probation made of the Fact that 't is impossible if Marriages are tolerated without a Priest in a Temple or a Justice of Peace in his Hall or Banns at the Church or Market-Cross to have Witnesses or any other Testimony or Evidence of the Fact unless the Magistrate should give Sentence as the Bishop doth without Probation To which is answer'd First That Toleration of Private Marriage without Publick Witness of Priest or Magistrate is no denial of liberty to those who desire Publick Witness of their Contracts of Marriage no more than the Toleration of passing Lands by Livery and Seisin in Pays is a denial to pass them by Fines and Recoveries or other matter of Record which is publick Testimony but Parties may use one or the other or both as they desire and think suits best with their Conveniences but that which is here press'd is that no Mans Christian Liberty be infringed nor he be compell'd to make publick Witnesses either of
to express his unnaturall Villany both heard and saw by a Travers from the other side of the Tent But was so far from being moved with Compassion that thinking it long till he were dispatched with a most Terrible and cruel Voice he rated the Villaines enured to Blood saying will you never dispatch that I bid you Will you never make an end of this Traitor for whom I have not Rested one night these ten years in quiet which horrible commanding Speeches yet thundring in their Ears those Butchering Mutes threw the Poor Innocent Prince upon the Ground and with the help of the Eunuchs forcibly drawing the knitted Bow-string both ways by the Commandment of a most wicked Father strangled him With like Barbarous Cruelty he shortly after caused Mahomet his Nephew Mustapha his Son to be strangled also This unnatural and strange Murther committed he presently Commanded the Bassa of Amasia Mustapha's Lieutenant to be apprehended and his head in his own presence to be struck off which done he sent for Trihanger yet Ignorant of all that was happened and in sporting wise as if he had done a thing worth Commendations bid him go meet his Brother Mustapha which thing Trihanger with a merry and chearful Countenance hasted to do as one glad of his Brother's Coming But assoon as he came unto the place where he saw his Brother lying dead upon the Ground strangled it is not to be spoken how he was in mind tormented He was scarcely come to the place where this Detestable Murther was Committed when his Father sent unto certain of his Servants to offer unto him all Mustapha's Treasure Horses Servants Jewels Tents and withal the Government of the Province Amasia But Trihanger filled with extream heaviness for the unmerciful Death of his well beloved Brother spake unto them in this sort Ah Wicked and Ungodly Cain Traitor I may not say Father take thou now the Treasure Horses the Servants the Jewels and the Province of Mustapha How come it into thy Wicked Cruel and Savage Breast so ungratiously and contrary to all Humanity I will not say the Reverence of thy own Blood to kill thy Worthy Warlike and Noble Son the Mirrour of Courtesie and Prince of Greatest hope the like of whom the Othoman Family never yet had nor never shall I will therefore my self provide that thou nor none for thee shall never hereafter in such sort shamefully Triumph over such a Poor Wretch as I am And having thus much said Stab'd himself with his own Dagger in the Body whereof he in short time dyed which so soon as it came to the Old Tygers Ears it is hard to say how much he grieved His dead Body was by his Fathers Commandment carryed from Aleppo in Syria to Constantinople and afterwards Honorably buried on the other side of the Haven at Pera. Hence appear the two great benefis the Ottoman Emperors receive from not medling at all with the Priest either in Coronations or Marriages but as to the first rather wear no Crown at all and are content with a Turbant than receive it from them or their Unctions and for their Marriages take what Wife they like in Private without them or their Solemnities For first the sparing a Coronation and likewise the Solemnity of any Marriage which cannot avoid if publick by a Priest the forementioned Excesses of Apparrel Tilting Turneaments Masking Gluttony Riot Drunkenness Dowers and Gifts on the Coronations and Marriages of so great Princes saves him a Vast some of Money to his Private Treasure and what is a greater benefit than the other secures his Supremacy against the Ecclesiastical Mufties and Caliphs who can make no pretence to depose him or take from him or his Successors that Government which they never gave him nor he would receive from them or his Sons from their Unctions or Certificates 12. They proceed to Judgment in the unknown language of Law-Latine That the Romish Bishops and Priests were the first who brought Latine into Churches and compelled the People to Pray to God in any Language they understand not I suppose none will doubt and I cannot think any will oppose but grant these likewise were the first who brought the same Barbarous Latin both into the Spiritual and Temporal Courts they themselves being at first the chief Judges and Clerks of both It will not likewise be denyed that William the Norman was the first who brought in his Barbarous French to this Nation and if we consider no further than that the Authors of these two Languages were Forrein Enemies and Papists I see no Reason any Protestant Divines or Lawyers have except filthy Lucre to be so fond of them as to continue such Exotick Gibberish to be not the least corruptions of our Religion and Justice and snares of Liberty and Propriety and somtimes of Life it self The final causes therfore which induce these uncouth and crabbed Languages and Characters both of Court and Chancery hands have been and are very wicked 1. One cause for which the Roman and likewise the Norman who was the others Ape put the Forms of Judicial proceeding into unknown Languages was to intrap the People Bak. Hist 27. 2. It hath been continued by Judges and Officers of Courts to Monopolize the Trade of Law 3. That Ignoramus and Dulman who had not been at Shool long enough to learn true Latine might write half Words and Dashes which the Country Men might not be able to understand and laugh at Scribe cum Dasho bene est 4. That motions at Bar and demurrers and arguments in Law may multiply and cut out the more Work for Counsel for often times many a Term is spent in Babling about the pedigree of a false Latine word Coin'd by Dulman to derive it as high as a Radix which grew in Babel and when they have done that as great a Task they have to make it agree with his Anglicè whereby all the Cost and many a good Cause is lost because the Clerk could neither Latine nor English right 5. But when there is a Mis-prision or Mis-pleader by reason of a Language the Clerk understands not what a World of money will it cost his poor Client to get an Amendment for him of one or Repleader of the other The best Counsel in the Town must be Retain'd and they must spend at least a twelve month from Term to Term before they can be all heard Pro Con to repeat over all the Acts of Parliament since Magna Charta and all the Rotulo's in such a Hillary and such a Michaelmas Term. And all the Bundles in Ragman-Bag and all the Records in the Tower to the amazement of the Poor Countryman who keeps Twitching them by the Sleeves and Crying out like him in Martial Non de vi neque caede nec veneno Sed lis est mihi de tribus capellis Vicini queror has abesse furto Hoc Judex sibi postulat probari Tu Cannas Mithridaticumque bellum Et
Men to the height whom he himself if an Enemy appears in his Year is to lead in Person against him 8. The greater the number of Judges the greater the delay in the Proceedings 9. The greater number of Judges the more difficult to obtain Remedy against those of them who Judg wrong for they conceal their names as the Lords of the Session of Scotland being Fifteen and sometimes Eighteen compel the President to sign their Sentence in his name A. B. I. P. C. that is in praesentia Curiae though it be contrary to his Vote whereby it is as impossible to discover who gave the wrong Sentence as 't is in a Jury who gave the wrong Verdict deliver'd by the Mouth of their Foreman So in Athens the Court of the Areopagites were in number Twelve and they gave their Sentence into a Balloting Box by Black Beans and White Beans whereby it was impossible to know who gave the unjust Sâ—ntence on which Plutarch mentions a passage of Alcibiades who being sent for home out of Sicily to Athens to be question'd for his Life Fugam fecit and being askt by one saying Wilt thou not trust thy own Countrey who begat thee to be thy Judg No quoth he nor her who brought me forth lest she being Ignorant and not conceiving the Truth mistake a Black Bean for a White Amongst oâ—hers was the Custom to do it with Black and White Stones as Ovid Mos erat Antiquis niveis atrisque lapillis His damnare reos illis absolvere culpa They Sentenced with Stones of Black and White That know thou mightst not who Judged Wrong or Right 10. The Appeal must be to double the number as from a Jury of Twelve to a Jury of Four and Twenty which makes double the danger amongst so many they all concealing their Names in giving their Verdict as well as the first Jury 11. When a Jurisdiction is divided to two Judges which might have been exercised by one by the Interfereing of the divided Jurisdictions a man is pull'd to pieces to pay Tribute for the same Cause to both as between the Chancery and the Common Law Courts between the Kings-Bench and Common-Pleas one on Indictment of Trespass the other for Action of Trespass for the same offence so between the Common Law Courts and the Episcopal Courts a man is not only put to double Costs but is twice punish'd for the same offence and all Jurisdictions in the hands of several Judges will interfere except such as are divided by Territory and no other respect as the Jurisdiction of one County-Court is divided from another by Territory the County Palaâ—ines from the Westminster Courts by the Territory bounding them the Admiralty from the Common Law Courts by the Territory cover'd with the Sea 12. Where one Judg is sufficient to perform the Office of many with greater Expedition and Justice a multitude of Judges must be then a vast Charge to the Publick and a Prejudice as if to Justice the Romans had appointed Twelve Judges for every Province where one alone discharged the same it had been enough to have exhausted the Treasure of an Empire it is manifest that but three Judges only iâ— Westminster one in the Kings-Bench the other in the Common-Pleas and the third in the Exchequer let them have but the Jurisdiction of Fact Law and Equity as they ought to have may with as exact Justice and greater Expedition than now is done discharge all the Offices of the Twelve Judges of the Kings-Bench Common-Pleas and Exchequer save the labour of the Prerogative Court of Arches Court of Audience Court of Faculties Court of Peculiars Consistory Courts Court of the Arch-Deacon or his Commissary the Court of Delegates and all Episcopal Courts and Offices and likewise save the Labour and Charge of a distinct Chancery and of all original Writs and of all Commissions of Rebellion and of all Outlawries of all the intolerable Slavery of Sheriffs in making Pannels and of Free-holders serving in Juries and of Nisi Priuses and of Councels speaking to matters of Fact before Juries And that three Judges are sufficient to do this and many matters more I speak by experience for there were but four English Judges sent into Scotland and sometimes there were but three and sometimes but two there the other serving in Parliaments as they fell out and occasion required and we discharged all the Offices of Lords of the Session Lords of the Exchequer and of the Justitiar General in his Justice-Eir and in his particular Justice-Courts which did answer all the Offices and Power of the Judges in Westminster of the Chancery Kings-Bench Common-Pleas and Exchequer and of the Justices of Gaol-Delivery in their Circuit and besides these we Discharged the Commission for Plantation of Kirks through all Scotland and were Visitors of the Universities there were Judges likewise of the Seisures of all Ships except English Importing any Goods of the Production of Asia Africa America or Europe contrary to an Act made 1651. Cap. 22. for Increase of Shipping and encouragement of Navigation we likewise Discharged a Commission of Claims and a Commission for moderating the Fines laid on Persons who had been in Hostility to a Third part we likewise Discharged a Commission to Elect all Chief Officers in the Boroughs and made all the Sheriffs of Scotland yet had we not above Six Hundred Pound per Annum for all this and about Two Hundred Pounds to bear the Charge of a Circuit which was no profit to us but spent in entertainments for the Publick Honour neither did we take any Present Treat or Entertainment from the Sheriffs though of our own making and much less any Bribe or so much as Esculenta or Poculenta from them or any other now that which made it possible to us to Discharge so many Courts Offices and Commissions was that we were saved the labour of having Causes tossed and tumbled from Chancery to Common Law the Chancery and Common Law being there united and Pleas of Equity admitted in the same Court and there being no Juries in Civil Actions the same Persons were Judges of Fact Law and Equity another cause was that there were no Original Writs but the more compendious and just way of Summons used by serving the Defendant with a Copy of the Declaration another cause was that Councel could not speak to matter of Fact in Civil Actions before Juries or at Nisi Priuses there being none nor was so much as one of them suffer'd to speak or appear at the Bar when the Depositions of Witnesses are Advising or Reading as they do with us at Chancery-Hearings to the intolerable charge of Suitors and destruction of Justice and Equity another cause was that the Councel first excepted to the Law which we call a Demurrer and after that to the Fact which we call a Plea and had that liberty given both to demur and plead which kept the way so clear before them that they had never
the Servandes of the House or other famous Witnesse and sall execute their Offices and Charge and thereafter sall offer the Copie of the saidis Letters or Precept to ony of the Servands quhilk gif they refuse to do that they affix the samin upon the Èœett or Dure of the Persones Summoun'd and siklike gif they get na entress they first knockand at the Dure Sex Knockes they sall execute their Office before famous Witnesse at the said House and dwelling place and affix the Copie upon the Èœett or Dure thereof as said is quhilk sall be leiful and sufficient Summounding and delivering of the Copie and the Party and Officiar sall not be halden to give ony usher Copie bot at their awin pleasure And every Officiar in his Indorsation sall make mention of his awin Execution in manner fore said and the Partie at quhais instance the Letter or Precept is direct sall pay to the Officiar Executour the Expenses of the Copie affixed as said is and sall be taxed and given again to him the giving of the Decreet or Sentence gif he happenis to obteine And gif the Officiar heis foundin culpable in the Execution of his Office he sall be put in our Soveraine Lordis Prison and punished in his Person and Gudes at the Kingis Grace Will. Coke 4. part 99. saith The Common Pleas may in many cases proceed against their own Officers by Bill without Writ and why may not all the Subjects have the same Right as well as the Officers of the Common Pleas In London before the Mayor and Aldermen Debt and Personal Actions are determined by Bill without Writ City-Law 3. And so are Assises of Nusance ib. 4. and why may they not by Copy of the Bill be commenced better than by Writ over all the Kingdom The mischiefs of Original Writs from the Chancery Besides the Delays of Original Writs and Process by remoteness of Courts whither they are to be sent for and by the multiplications of Aliases and Pluries and the manifold dangers when gotten and executed to be again overthrown and nullified by Abatements for a multitude of frivolous Causes and Formalities and likewise for so many sorts of Variances as before mention'd of all which the Declaration might have been free if no Writ had preceded 1. It is excepted against Writs that Declarations are not amendable and it costs many times so much in amending the Misprision of Clerks in their Writs that the Plaintiff if he is not so poor as not to be able were better abate his own Writs and Declaration himself and pay Costs and buy Twenty new Writs than get one of the old amended 2. Writs Original are altogether useless except to get Money for nothing 3. They are saleable contrary to Magna Charta Nulli vendemus Justitiam and the Civil Law for Lege Julia tenetur repetundarum qui accepit aliquid ob Judicem delegatum dandum mutandum vel ob non dandum c. And what doth a Writ of Right a Justicies or any Original do besides but assign a Delegat Judg to hear the Cause in the Kings-Bench or Common-Pleas or Lords-Court or County-Court Then 't is contrary to Equity the Plaintiff should be compell'd to buy a Writ which is not only useless but pernicious to his Declaration and puts it in ten times more danger to be overthrown than if he might as he ought be permitted to use it without a Writ and the Plaintiff being to deliver a Copy of his Declaration Expensis Actoris to the Defendant 't is no reason he should be at any expence to pay Clerks for Writs impertinent 4. As to the Writ in Chancery of Subpaena Mischiefs of the Chancery Writ of Subpaena which is to be distinguished from the Writs to the Common Law Courts it is contrary to Magna Charta Nulli negabimus Justitiam for if a Poor man Sue a Noble-man there a Chancellour will deny a Poor man his terrible Writ which he uses to grant under a Hundred Pound Penalty in Terrorem Pauperum and he shall get no more of him if he do that at a greater price than the Writ would have cost but a poor begging Letter to the Noble-man to send his Answer to the Complaint against his Oppression which is no other than to bring into England the old Slavery of Rome whereby no Slaves were permitted to Sue their Lords before the Pretor or any other Judg were their Tyranny over them never so great and unjust What a wretched dishonour is it to Publick Justice which heretofore was blind to the Person that she turns now blind to the Cause and who heretofore carried the Sword in her hand Parcere Subjectis debellare superbus to have now lost her Sword and got a Crutch to become only a blind Beggar when she is to approach the Gates of Nobles neither is there any Law of God or man in England to justifie a Chancellour that he shall presume to use a different process of Concumacy against the Commons Chancellour hath no Power to Imprison Commons any more than Lords which he dares not use against the Lords for if it be not lawful for him to Issue Attachments or Commissions of Rebellion against the Lords or to imprison them then is it not lawful for him to Issue Attachments or Commissions of Rebellion against the Commons for both are equally Interested in Magna Charta and the Petition of Right not to be imprison'd without the lawful Judgment of their Peers and they being both Allies and Confederates by the said Acts to maintain the Commons Liberty The Liberty of the Commons is the Out-work which preserves the Liberty of the Lords if the Commons be Invaded though for the present such Invasion touch not the Lords yet when it hath destroyed the Liberty of the Commons the Lords will not be able to defend theirs when their Allies are lost The Liberty of the Commons is the Outwork which preserves the Liberty of the Lords the Liberty of the People is the Outwork which preserves the Liberty of the Parliament the Liberty of the Subjects is the Outwork which preserves the Safety of the King and as Solomon saith Prov. 20.28 Mercy and Truth preserve the King and if contrariorum contraria est ratio Cruelty and Fictions of Writs of Subpoena's in Chancery Latitats in Kings-Bench and Capiases without Summons in Common-Pleas wherewith they abuse the Kings name in false imprisonments of his Subjects without Crime or Cause destroys the prisonments of his Subjects without Crime or Cause destroys the Safety of the King himself and in a Case between the Duke of Lenox and the Lord Clifton M. 10. Jac. Though a Lord was not to be Committed for Contempt in a Poor mans Case yet in this Case between two Lords Chancellour Egerton said If Noble-men will commit Contempts they are to be Committed Now that the Imperial Power which hath been usurped by Chancellors to imprison the