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A30726
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The true case of John Butler, B.D., a minister of the true Church of England in answer to the libel of Martha his sometimes wife : treating of a marriage dissolved and made null by desertion and of a lawful concubinage in a case of necessity, wherein lawful marriage conveniently or possibly cannot be obtained.
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J. B. (John Butler)
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1697
(1697)
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Wing B6276; ESTC R20976
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33,278
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45
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such a Woman his wife whom he never turn'd out of doors but she lived with him while she would and left him of her self but lived upon his estate eat and drank at his charge and lived upon his means and does so to this day and was never denied support and maintenance would she come where t is to be had V. Item That the said John Butler hath an estate to the value of 200 l. or at least 185 l. per ann Hocque c. ponit tamen c. ponit ut supra To which this Respondent answers that once he had such an estate but by the ill dealings of the said Complainant Martha and her sons by confederacy with Nathaniel 〈◊〉 the mortgagee he is deprived at present of his whole estate by illegal and evil arts and this Complainant and her Sons are in possesson thereof VI. Item Quod praefat Johanes Butler suit est paroch de Hammersmith in Com. Mids ac ratione literarum requiâ— ab Ordinario locâ—prius obtent jurisdict â—ujus curâ— Notor subditus subject ponit ut supra Hic Respondes de his nil intelligit VII Item Quod de super premissis c. Item Quod praemissa c. Negat Respondens FINIS Simply Adultery and malitious Desertion do dissolve Marriage Either of them do make a Divorce Divorce is a lawful dissolution of the bonds of Marriage The causes of it are two only Adultery and Desertion That is a malicious departure of one party from the other either of hatred to Religion or out of Levity or impatience of the restraints of marriage or of any other unlawful Cause refusing to perform marriage duties In Adultery the innocent Husband dismisses his Adulterate wife But in Desertion the innocent Husband is passive being deserted of his wife who leaves his bed In the process if no reconciliation be made before the innocent ought not to be compelled to receive the guilty But having lived honestly the Judge ought to pronounce him quit of the first marriage with free liberty to marry again We must shew the certain cause of Divorce by means wherof with a safe and quiet conscience a man may marry again of this kind are two Divorce of Adultry and Desertion Christ does not say he who is deserted of his wife and marries again committs Adultry But he who dismisses his wife does so for she unfaithfully Divorceth her self and therefore deserves no more Faith from her innocent Husband St. Ambrose is positive that who ever relinquisheth her Husband has utterly dissolved the bonds of Matrimony that the relinquished Sins not in marrying another A perfect Marriage may be two ways dissolved I when by Law it is in its self null or declared so to be II. When for lawful causes it is made null Our Saviour's sense in Mat. 19. 8 9. with St. Paul in 1 Cor. 7. 15 may be thus reconciled Christ treateth of one unjustly dismissing his wife according to the question asked St. Paul teacheth of one injustly dismissed of his wife in answer to the Question ask't him in case of an Infidel wife deserting Whether a believing husband be so strictly tied up that he cannot marry another Wife To which he answer's That after all lawful means used to reclaim her he may marry another wife And the same learned Author says that by an Infidel St. Paul means every one who is a malicious and cause less desertrice according to St. Pauls sence in 1 Tim. 5. 8. And he farther saith that if the Magistrate neglect his Office the innocent party is free to marry another Woman without his Sentence and to reject his Infidel Wife as freely as he may reject an Haeretick after once and twice admonition Tit. 3. 10. This Author says That an affected voluntary absence of either party is to be taken for a malicious Desertion And that the unbeliever deserting does absolutely dissolve the bonds of Marriage This Learned Author shews That the Law of the new Testament takes place before all Canon and Civil laws and that by Authority of the new Testament without doubt After Desertion the deserted is so free from the marriage with the Desertrice that he may take another wife
inter volentes Matrimonium solvi potest ubi fines omnes conjugii impediti ac sublati sunt preter adjutorium quod etiam mendicis ipsis debetur Alberti Bakonii melius est disitos Angelice quam conjuncto Diabolice vivere etiam eos quibus nulla ratio ad perpetuum suppetit divortium earatione pax magis colatur Tab III. Si Infidelis fidelem conjugem Relig. causa repudiat fratrem vel Sororem liberat a conjugii vinculo pertale repudium Such as by these Quotations does appear are the Doctrines of all the most learned Divines of the Reformed Religion beyond seas whether Lutherans or Calvinists And our English Divines do agree with them therein Thus the learned Dr. Hammond in his Annotations upon 1 Cor. 7. 15. And so the Assembly of Divines upon the same only as to marrying again after Desertion they do not so largely express their sense as these others have done Yet in his practical Carechism the Doctor allows clearly Marrying again in case of malicious Desertion Book 2. §7 And so Nicholas Bifield upon 1 Pet ' 3. 7. Also the learned Perkins and divers others Now as for the learning of the Civil Law this Respondent cannot pretend to be so generally experienced Yet in confidence that Reformed Civilians do agree with our Divines He shall only introduce one Quotation out of a very learned Doctor of the Laws and of the Church and Kingdom of Denmark Melchior Kling in his Learned readings upon the four Books of Institutions of Law by the Emperuor Justinian imprinted at Leyden in the year 1582. and Dedicated unto Christian K. of Denmark which speaks as follows Lib. I. Tit. X. de nuptiis Fol. 32 Num. 1. Jus novi testamenti habetur in eo quot ad divortia attinet Enumer antur enim duae causae divortii Prima est Adul de quo Mat. 19. secun est si alter ex contrahentibus infidelis fuarit noluerit habitare cum fideli sed discesserit permissum est fideli iterum nubere 1 Cor. 7. Fol. 33. Numb 5. Certum est quod jus novi Testamenti Canonibus non cedit igitur jus novi Testamenti incasibus in eo decisis simpliciter sine aliqua mutatione sive limitatione servandum sit Et in hoc casu sine dubio pugnae jus canonicum cum jure novi Testamenti in multis Item Utrum sola desertio conjugis sine Adulterio sit causa divortii utum post divortium innocenti liceat altera perte vivente contrahere matrimonium sed de his questionibus infra decemus Fol. 34. Numb 5. De divortio Aut quaeras utrum Matrimonium propter Haeresim vel talem errorem in totum possit dissolvi ita quod fidelis altera vivente habeat transitum ad secundas nuptias hoc casu sine dubio fidelis potest nubere Now according to the sense of all these learned Divines both at home and abroad and the sense of the civil Laws which as it shall seem by this one learned Doctor does agree with them in the same sense It does appear that in case of a Desertion made by the wife the marriage with that wife is clearly dissolved she having divorced her self from her Husbands Bed or rather as our English Divines term it she hath clearly made Null and Void by that act of Desertion that marriage which was between her self and her Husband And that so as by the holy word of God the marriage is declared Null and Void in its self without any farther sentence of the Magistrate For thus saith the Text If she will depart let her go there needs no sentence of the Magistrate in the case especially where on Magistrate can be had in the case or in a case where the Magistrate either will not Act or at least will not make sentence as the holy word requireth For so saith the most Learned Bucanus in such a Case after convenient admonition and means used to reclaim such a Desertrice and she will not be reclaimed A good Husband may as freely and safely reject her Society so as never more to have to do with her as he may reject an Haeretick so as never more to have to do with him because he an is Haeretick and this he may do without any sentence or leave had of the Magistrate Tit. 3. 10. Nevertheless for the conveniency and the well-being sake of the Case the sentence of the Magistrate is thought meet to be procured were it for nothing else but to abide as a sure test that all maters in the case were rightly and truly acted For otherwise the Desertrice may return again be it only to despight her wronged Husband and denying the Desertion may claim her old right anew And besides there may be controversies about allowance of Maintenance all which by ajust sentence may at once be stopped Now this Respondent allegeth that in his case with his deserting wife there was no Authority but what at the highest was Popish that he could any way appeal unto and the ground of the Desertion being chiefly and only for dis inheriting his eldest son who had left his Father's religâ—on to become a Roman-Catholick he could expect no remedy but what would be superseded by the High-Commissioners from whom he could expect no right done him against the concern and interest of Popery 'T is true indeed that it was alleged as if this Respondent should say that he had another woman with child by him at that time for-which cause his wife the Complainant pretended to have relinquished him And she alleges she can prove such words uttered by him Unto which he answer's that true it is he was in a great passion because of his son tùrnÌ„'d Papist and his wife violently siding with him to excuse and justify him against this Respondent And what words in the heat of passion were utterd by him he does not perfectly remember it is a mater on her part to be proved But if some such like words dropt from him he might be mistaken by the hearers and misunderstood or was it true that he said so be sure it was not true that he said and he is ready to make oath thereof when ever called there to that there was no such thing done at that time nor ever before nor of above a twelve moneth after and there is no track or appearance or testimony can be made of any such thing done as is pretended But for a twelve-moneth after her desertion begun he did continually solicit her to be reclaimed and she would not tho no sign nor token appeared or was ever heard on in all that time of any Woman with Child by him But this Respondent is able to make proof by several suspitious tokens of her unsaithsulness and by her taking part with her kindred and acquaintance against him and by secret parloynings made of his goods besides a constant allowance alwayes made her and by her