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
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
and those Laws which follow them they will on Divorce under the name of Alimony give the Woman more then the Interest of her Portion amounts to which incourages all Women to seek Divorces whereas the form of Divorce amongst the Romans was Res tuas tibi habeto and she was not to have more then she brought with her and the same is the Law of the Jews and all other Nations except such as live under Popish Ecclesiastical Laws And the injustice of our Ecclesiastical Laws to the contrary is not one of the least causes why Divorce and Separations are of late grown so frequent because Women know they shall gain by the Divorce and rob their Husbands of more then ever they brought them Of the Law of Divorcing after Procreation of a Child for precontract or pre copulation without pre procreation Of the Law prohibiting liberty of private Marriage without publick Witnesses Of the Law giving the Jurisdiction of the secret causes of Divorce between Parents and secret uncleanness of Children in their Parents Houses to publick Tribunals Of the Law compelling persons married though mortal Enemies to Co-habitation Of the Law of Divorce à Mensa Thoro. Of the Canon compelling the parties on Divorce for Adultery to give Bonds and Sureties not to marry again during each others life Of the custom of Protestants marrying with Papists Edward the Fourth was as is alledged first verbally contracted to Eleanor Daughter to john Talbot Earl of Shrewsbury married after to Sir Thomas Butler Baron of Sudley after this verbal contract he married Elizabeth the Widow of Sir John Gray she lived his Wife Eighteen Years and Eleven Months and he had issue by her Three Sons and Seven Daughters Elizabeth his eldest Daughter was first promised in marriage to Charles Dauphin of France but married after to King Henry the Seventh Edward the Fourth being dead leaving his two Sons young in the custody of his Brother Richard the Third they were after murdered by him to make his own way to the Crown but first in preparation thereto Dr. Shaw in a Sermon by him Preached at Paul's-Cross took for his Text Spuria vitulamina non agent altas radices And to make short work they were after by Act of Parliament Proclaimed Bastards and not inheritable to the Crown on no other Allegation made but the pre-contracts before mention'd with Eleanor Butler as is recorded in the Parliament Roll. Husband divorces the Wife for cause of precopulation committed by himself Buchanan rerum Scoticarum lib. 11.652 relates That Earl Bothwel aspiring to obtain the marriage of Mary Queen of Scots compelled his Wife to accuse him of pre-copulation with another Woman before he married his Wife Gordonia Bothuelii uxor cogitur in duplici foro litem de Divortio intendere apud judices Regios accusat uxor maritum adulterii quae una justa apud eos erat divortii causa apud judices Papanos lege vetitos tamen ab Archiepiscopo fani Andreae ad hanc litem cognoscendam litem dare accusatur idem ante Matrimonium cùm propinqua uxoris stupri consuetudinem habuisse nulla in Divortio faciendo nec in testibus nec in judicibus fit mora intra enim decimum diem lis suscepta disceptata dijudicata est After he saith one thing thought necessary was ut consuetae servarentur Ceremoniae ut videlicet publice in conventu civium tribus diebus Dominicis nuptiae futurae inter Jacobum Heburnum Mariam Stuartam denuntiarentur ut si quis quid vitii ant impedimenti sciret quo minus legitimè coirent rem ad Ecclesiam deferrent And after he saith Cùm de nuptiis in Ecclesia denunciandis ageretur lector cujus id munus erat constanter recusare collecti Diaconi seniores cùm reluctari non auderent jubent Ecclesiastem nuptias futuras de more edicere is quidem hactenus paruit ut se vitium quidem scire profiteretur ac paratum seu Reginae seu Bothuelio cum vellent judicare is cum in arcem accersitus venisset Regina eum ad Bothuelium remisit qui quanquam nec blanditiis nec minis Ecclesiastem de proposito deduceret nec rem disputationi committere auderet tamen nuptias apparat unus Orcadum Episcopus est inventus qui gratiam aulicam veritati praeferret caeteris reclamantibus causasque proferentibus cur Legitimae non essent nuptiae cum eo qui duas uxores ad huc vivas haberet tertiam ipse suum nuper fassus adulterium demisisset ita indignantibus omnibus bonis vulgo etiam execrante propinquis per literas improbantibus inchoatus publicis Ceremoniis simulatis etiam factas detestantibus tamen Matrimonium celebratur Which fore-mention'd pre-contract alledged against Edward the Fourth was no more just cause to Illegitimate his Children then it was to Murder them nor was his pre-copulation with another Woman confess'd by Earl Bothwel any more just cause to Divorce his Wife then it was to aspire to the Kingdom 32 H. 8. cap. 38. takes notice of the great mischiefs insuing by dissolving by pre-contract Marriage consummate by bodily knowledge and fruit of Children or Child which Statute follows in these words WHereas heretofore the usurped power of the Bishop of Rome 32 H. 8. cap. 38. Of precontract hath always entangled and troubled the meér Iurisdiction and regal power of this Realm of England and also unquieted much the Subjects of the same by his usurped power in them as by making that unlawful which by God's Word is Lawful both in Marriage and other things as hereafter shall appear more at length and till now of late in our Soveraign Lord's time which is otherwise by learning taught than his predecessors in time past long time have beén hath so continued the same whereof yet some sparks be left which hereafter might kindle a greater fire and so remaining his power not to seem utterly extinct Therefore it is thought most convenient to the King's Highness his Lords Spiritual and Temporal with the Commons of this Realm assembled in this present Parliament that two things especially for this time be with diligence provided for whereby many inconvemences have ensued and many more mought ensue and follow As where heretofore divers and many Persons after long continuance together in Matrimony without any allegation of either of the parties or any other at their Marriage why the same Matrimony should not be good just and lawful and after the same Matrimony Solemuized and Consummate by carnal knowledge and also sometimes fruit of Children ensued of the same Marriage upon pretence of former Contract made and not Consummate by carnal Copulation for proof whereof two Witnesses by that Law were only required beén divorced and separate contrary to God's Law and so the true Matrimony both so Solemnized in the face of the Church and Consummate with bodily knowledge and confirmed also with fruit of Children had betweén
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
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
of Wine and prayes over it and offers it to the married Couple to tast but the Bridegroom dashes it against the Wall in memory of the destruction of Jerusalem so the Bridegroom in sign of sorrow puts on a black Cloak and the Bride a black Hood Mr. Addison tells of the Barbary Jews That they are married at the Bride's Chamber only by putting a Ring on the Woman's finger and pronunciation of these words by the Rabbi Thou art Married or Sanctified unto this Man with this Ring according to the Law And when married they use a foolish Ceremony if the Bride is a Virgin they give her Wine in a narrow-mouth'd Cup if a Widow in a broad mouth'd Cup and after the Bridegroom casts a raw Egg at the Bride c. And how the fopperies of such Ceremonies come by God's Law to make a marriage or no marriage or legitimate or illegitimate the Child no rational Man ever understood Plurality of Wives As to the determination of number of Wives by Nature it seems to be according to the number she her self gives As in the East and Southern climes the Feminine number naturall exceeding the Males many fold And in times of great destructions by Wars such as are foretold Isa 3.25 Thy men shall fall by the sword and thy mighty in War and her Gates shall lament and mourn and being desolate shall sit upon the ground And in that day seven Women shall take hold on one Man In the Kingdom of Benym amongst the Negro's the King hath five or six hundred Wives and his Subjects keep 20 30 40 50. 60. according to their ability and the poorest sort five or six and some a Dozen Hierotinus an Arabian King had six hundred Children by Concubines so it seems excessive multiplication may be one reason against Plurality It was a Law amongst the Garamants That when any Woman married had three Children she should be separated from her Husband because a multitude of Children cause Men to have covetous hearts and if any Woman bring forth more Children they shall be slain before their Eyes Aristotle in his Politiques thinks it profitable That Plebeians should not have too many Children and therefore allows Divorce lest the Wives should bear too many Connubia mille non illis generis nexus non pignora curae sed numero languet pietas Claud. de Bell. Gild. Amongst the Medes antiently Polygamy was so far from being esteemed a fault that it was a punishment for a common Person not to have seven Wives and for Noble Women to have less then five Husbands Heylin 814. Of the custom of the Jews to keep one barren Wife and another to breed One Barren and another Breeding Wife Selden de Jur. natur lib. 5. pag. 586. translates out of a Jewish Rabbi these words Sub diluvium hominum mos erat ut pro libitu binas sibi duceret quisque uxores alteram prolis gratia alteram in Concubitum ea autem quae prolis gratia haberetur velut vidua quamdiu superstes esset degebat sed ea quae in Concubitum adhiberetur sterilitatis exhaurire solebat Poculum ut sterilis redderetur atque juxta virum accumbere solita velut meretricio ornabatur habitu And in another place ornata etiam velut nova nupta lautiores comedebat dapes acerbius autem durius tractabatur socia lugebat vidua To which alludes Job 24.2 as 't is in the Hebrew he fed the Barren which brings not forth but did no good to the Widow Moses saith Cursed be he that lieth with his Sister Incest the Daughter of his Father or the Daughter of his Mother Deut. 27.22 Yet Abraham allowed it in his time and married Sarah And Amram took him Jochebed his Father's Sister to Wife and she bare him Aaron and Moses and the years of the life of Amram were an hundred and thirty and seven years Exod. 6.20 Aretas King of Arabia Petraea and Herod fell at strife the one with the other for this cause which ensueth Herod the Tetrarch had married Aretas his Daughter with whom he lived married a long time afterwards taking his Journey towards Rome he lodged with Herod his half Brother by the Father's side for Herod was the Son of Simon 's Daughter which Simon was the High Priest and there being surprized with the love of Herodias his Brother's Wife who was Daughter to Aristobulus their Brother and Sister to the great Agrippa he was so bold as to offer her some speech of marriage which when she had accepted Accords were made between them That he should banish his Wife Aretas far from him who complaining to her Father the Arabian King of the injury done her by her Husband Herod the same raised War between him and Herod Josep lib. 18. cap. 7. de Antiq. And Aretas overt rowing Herod's Army divers Jews were of opinion That this Judgment fell upon him because he had cut off John's head by the instigation of Herodias ibid. But as for this opinion divers believe that it hath been foisted into Josephus vid. Blâ—ndell Hist Sybill But as to the Point in question of Incest 't is very clear That John justly reproved Herod for marrying his Brother's Wife whether there was a Judgment followed on it or not But it cannot be infer'd that the cause why he reproved it or why the War followed on him was Incest but the cause thereof is more likely to be because he so wrongfully Divorced his first lawful Wife and likewise caused his Brother's Wife to be Divorced from him while his Brother was alive and Tetrarch of Galilee that he might have her from him So here was a double Divorce matter enough to reprove without minding any Incest which agreed likewise with the Doctrine of Christ and 't is manifest that was the only cause of the War and not any pretence of Incest for Aretas would have raised the War alike if the wrong had been done his Daughter by a strange Woman as if it had been by a Kinswoman Therefore no Argument can be brought that St. John's opinion was this was Incest nor that any Judgment happen'd for Incest but rather for unlawful Divorces so the marrying the Brother's Wife to raise up Seed to the Brother seems a custom tolerated for hardness of their hearts and not to be imitated by Christians Tryal of Virginity more wicked then the Bill of Divorce for this was after the Husband had lain with her Tryal of Virginity and perhaps likewise he might have got her with child Deut. 22.13 It is said If any man take a Wife and go in unto her and hate her and give occasion of speech against her and say I took this Woman and when I came to her I found her not a Maid Then shall the Father of the Damsel and her Mother take and bring forth the Tokens of the Damsel's Virginity unto the Elders of the City in the Gate and the Damsel's Father shall say
by her assent the Emperor is endeavour'd to be stoned by the people in hatred of his Concubine Zoe pacifieth the people Ib. Impotency and Sterility is a cause of Divorce The Law of Solon allowed Impotency in the Man or Sterility in the Woman to be a good cause of Divorce Plutarch in Solon vid. Aust contra c. because then old Folks might not Marry Such was the modesty of ancient times in Rome that from the first foundation of the City for the space of Five Hundred and Twenty Years there happened no Divorce between a Husband and Wife Val. Max. l. 2. cap. 1. And the first who began it was Spurius Carbillus who put away his Wife for Sterility which though it seem'd a tolerable cause yet wanted not reprehension from divers who thought the Conjugal Faith ought to overweigh the desire of Children Anno 631. Dagobert the great King of France repudiated his first Wife for Barrenness and Marrieth Nantildis a Nun Amandus a Bishop reproves him and he banisheth the Bishop afterwards having a Son he revoketh the Bishop to baptize him Calais Anno Christ 1263. The Queen of Bohemia being old and Barren the King intendeth a Divorce she layeth the fault on him he maketh her this offer That she should appoint him a Maid and if he got her not with Child in a Year he would be reputed faulty the Queen accepteth it and in Ten Months he hath a Son and afterwards divers Daughters She is Divorced and Marrieth Kum Grand Daughter to the Duke of Muscovia Chron. Boh. Regner King of Denmark Anno 820. marrieth Langertha a Warlike Woman of Suevia and had by her Fridlanus and two Daughters Crom. After he Repudiateth Landgertha for the inequality of the Match and Marrieth the Daughter of Hezotus King of Suevia by whom he had many Sons Crom. Anno 1354. Peter King of Spain repudiateth Blanch Daughter to the Duke of Bourbon and Marrieth Jean de Castro Histor Hispan Anno 1373. The King of Portugal refused a Match in Castile and taketh a Nobleman's Wife and banisheth him his Subjects are discontented with him Hist Hisp Anno 696. Pepin King of France repudiated his Wife and married Alpaida his Concubine by whom he had Charles Martell and he kill'd Lambert Bishop of Thuring for reproving his Marriage Am. Fris. Anno 576. The Wife of Chilperic King of France was divorced and thrust into a Monastery for being Godmother to her own Child Truon Charles the Eighth of France was Espoused to Mary the Daughter of Maximilian Maximilian marrieth Ann the Daughter and Heir of the Duke of Britain by Deputy The King of France repudiates the Daughter of Maximilian and marries the Daughter of the Duke of Britain Luis the Twelfth of France repudiates his Wife and marries Ann his Predecessor's Widow Anno 1333. The Marquess of Misnia having married Judeth the Daughter of the King of Bohemia the Emperor causeth the Marquess to repudiateher and marry his Daughter The King of Bohemia taketh divers places in Misnia and giveth Judeth to John Son of the French King Dub. The Arch-Bishop of Gnesna in Polonia forced Married Priests to be Divorced from their Wives Alsted Anno 1218. Lewis the Seventh King of France having married Elianor Daughter and Heir of William Duke of Guyen and having two Daughters by her notwithstanding divorced himself from her on pretence they were Couzins in the fourth degree She was after married to Henry the Second of England who had by her Five Sons and Three Daughters and was she who revenged her self on Rosamond though not in so high a degree injurious to her as Adela the Daughter of the King of France affianced to her Son Richard who was after King was suspected to be of whom it was commonly reported That her Husband was so far inamor'd that he having Committed Elianor to Prison resolved to be divorced from her and marry Adela Bak Hist 55.59 King John having maâ—ried Avice Daughter and Heir of Robert Duke of Gloucâ—ster having no Issue by her divorced himself from her alledging that she was his Couzin in the third degree Juan Daughter of Edward the First for her Beauty called the fair Maid of Kent was married first to William Montacute Earl of Salisbury and from him divorced but it appears not for what cause and was after married to Sir Thomas Holland in her right Earl of Kent and Father of Thomas and John Holland Duke of Surrey and Earl of Huntingdon and lastly she was Wife of Edward of Woodstock the black Prince of Wales and by him Mother of the infortunate King Richard the Second Henry the Eight married first Katharine Daughter of Ferdinando King of Spain the relict of his older Brother Arthur and was after Twenty Years marriage and the Birth of his Daughter Mary after Queen of England by her divorced from her on the opinion of some Divines that it was not lawful for him to marry his Brother's Wife and having successively married two other Wives after their death he married his fourth Wife Ann Sister to the Duke of Cleave she lived his Wife six Months and then was likewise Divorced Civilians Canonists Divines Lawyers and one Pope against another Aliment of Children and all by the Ears about Divorce and unless as we ought we wholy consult the Moral Law of God there is not a word of sence in the Laws of men but they are all for gain As Desertions and Divorces of Mothers without cause have been too frequent both amongst Gentiles Jews and Christians so likewise is the Desertion and not giving Aliment to Children Aristotle stain'd his Philosophy with the bloody Doctrine of exposing Infants The Chinoys who are poor think it Charity to strangle their Infants and save their Aliment Fornicators make it their custom to deflour Virgins and get them with Child and then illegitimate and desert both Mother and Child to save the charge of Aliment And oh horrid amongst Christians who le Parishes rise with Swords and Staves against one poor Sucking Babe to exterminate both it and the Mother naked and to be Vagabonds to beg steal or starve only to save so small an Alms as Aliment to one poor Infant not able to speak or beg for it self It is related by Travellers that some Indians use when a Child is born if it take not to suck the Dug of the Mother well they carry it out of the House and hang it naked on a Tree and leave it there returning themselves into the House after a while they go out again and bring in the Child and offer it the Teat if it take it not they carry it the second time and let it hang twice as long and fetch and offer it the Teat again if it take it not then they hang it on the Tree the third time and leave it hanging till it dies God made man righteous and writ the Moral Law in his heart but since the Devil hath seduced him to the Ceremonial he is become
worse then a Beast CHAP. III. Marriage Filiation and Succession not to be judged by the Law-Civil Canon or Feudall AS to the Author of the Civil Law or rather the Emperor in whose name and time the same was compiled he was Justinian whom though his own Parasites extoll'd for a God and his Lawyer Tribonian imployed by him or his Wife Theodora to do the work claws him with a doleful Compliment that he was in great fear least he should be rapt up into the Heavens when he little thought of it for his singular Piety to their insufferable loss Yet Procopius makes him a Devil and doubts very much whether he were not a Devil incarnate more likely when he little thought of it to be rapt to Hell Bodin indeed speaks something Fol. 17. may clear him from being a Daemon for he saith He was a blockish unlearned Prince and out-witted by his Wife Theodora when she pleased and caused by her to make Laws only for the advantage of the Women against the Men and Procopius likewise commends his Justice and saith That he used when he could catch them to take Bribes of sides and if any who had a Sute before him presented him with a Bribe he was sure to carry his Cause unless the other Party counterballanced him with another As to the Collection of Laws attributed to him it cannot be denied but there are a multitude of excellent Laws of Nature scatter'd through the great Mass of them but in such a confusion as is rather proper to a Chaos then an orderly Digest Then for the bulk 't is an Hundred times bigger then necessary and the Evil Laws which increase it to that greatness in number overwhelm and in Nature destroy or make useless the Good As to the Religion in them it is Popery and Superstition The Justice is Tyrannical and Arbitrary Government the Mercy of them is Racks and all inhuman Tortures Civil Law The Heads of the Civil Law prohibiting to marry are comprehended in the Verses following 1. 2. 3. 4. 5. Aetas Conditio Numerus Mona Et Ordo 6. 7. 8. 9. 10. Optio Nobilitas Sanguis Tutela Potestas 11. 12. 13.  14. Fons Sacer Affinitas Raptus Repugnat Honestas Irrita quae faciunt Connubia legibus haec sunt 1. The first cause making marriage void or voidable is Age if the Man is under 14 or the Woman under 12. 2. Condition If it be servile they were not allowed to marry Ceremonially but might lie with one another and get new Slaves 3. Number If a Man have one Wife he ought not to have another 4. If either Person be Monastick as a Monk or Nun. 5. Being within Orders as a Priest or Clerk 6. Adoption prohibits mariage between the Adopting and Adopted 7. Nobility heretofore prohibited marriage with a Plebeian and Senators and their Children per Legem Papiam Juliam with their freed Women or others of so mean Condition A wicked Law and contrary to the Law of God for they might lie with Plebeians but not marry them 8. Consanguinity in respect of which three sorts of Persons are consider'd the Ascendents Descendents and Collaterals 9. A Guardian is prohibited to marry his Pupil 10. A President of a Province is prohibited to marry one subjected to him by reason of his Jurisdiction in which two last cases the reason is that marriage might be free and not compell'd by the Awe or Power of Authority 11. Fons Sacer the Font of Baptism is by the Pope made to contract a spiritual affinity or kindred between the God-fathers and God-mothers and Child Baptized for whom or their Children to marry within the fourth degree is made without any sence as Incestuous as if within the degrees of Carnal kindred 12. Affinity in which are the same Considerations of Prohibition to marry as before in Affinity 13. Rape for by the Civil Law the Ravished was prohibited to marry the Ravishor 14. Such Matters as are thought against Honesty or are of ill report according to the Manners of the People Canon Law As to the Canon Law Aquinas Cajetan and others recite the Verses following which have left out some of these Matters relating to the Civil Law and added difference in Religion and other Matters withal to the Modern Canons in the manner following Error Conditio Votum Cognitio Crimen Cultus Disparitas Vis Ordo Ligamen Honestas Si sis affinis si forte coire nequibis Haec sociandà vetant Connubia facta retractant Which likewise may be easily understood by Exposition before made of the former But they are likewise many of them wicked and contrarg to the Law of God The Civil Law is a Cento of Rescripts of Emperors a frippery of Opinions of Doctors Planting the Sword for the Ballance Superstition for Religion Tyranny for Government Antinomies for Laws Torture for Judgment Gain for Godliness Iniquity for Justice Confusion for Method Fiction for Truth Form for Matter Manner for Merit Ceremony for Substance a Powder of Impertinents a Remedy worse than the Disease a Whirl-pool of Vertigoes a Rock for Shipwracks a Gulf to swallow Money a Sea driven with contrary winds a Bottomless Deep of Doubts a Chaos of Controversies an Abyss of Darkness a Bulk broken with it's own weight Canon Law Anno 1520. The Pope and Papists Excommunicating Luther he appealeth to a Council and burneth the Canon Law and the Popes Bull at Wittenberg Calvin tit Cynus writes of him thus Cynus jurisconsultus Pistorii natus Dyni Maxellani auditor Bononiae jus civile professus est librosque de eo non paucos ita scripsit ut semper à Pontificiis canonibus abhorret In interpretatione l. quoties C. de Jud. scribit Canonicum jurisconsultum secisse sibi jura pro libitu voluntatis suae leges civiles servare eas ad commodum suum non autem contra se propter ambitum secularis jurisdictionis usurpandae non propter aliud Cynus a Professor of the Civil Law at Bononia and one wrote many Books concerning the same yet did always very much abhor the Papal Canons and writes in interpretation l. quoties C. de Jud. that the Canonists made all their Laws according to their own Arbitrary will and observed the Civil Law only for their profit and not when it made against them out of Ambition to usurp Temporal Jurisdiction to themselves and to no other end The Canon Law is deservedly likewise censured by the Lord Bishop of Lincoln in his late learned Book against Popery fol. 35. where having recited many wicked positions in it he concludes in these words Thus much and may be too much for the Canon Law that sink of Forgeries Impiety and Disloyalty for I scarce know any Book wherein are more forged writings under good name sometimes for bad purposes and more impious Doctrines and Positions own'd and authoriz'd for Law and that by one who pretends though without and against reason to be Christ's Vicar and
no Jurisdiction but by Usurpation of so Temporal a Right as Marriage before this Statute let any who thinks he can see Nine Miles into a Milstone once more look into the Statute of Merton before recited and try whether he can screw out of it any word giving the Bishops either a Jurisdiction of Marriage or general Bastardy or that this Statute ever forged so rude a Romish Tool as the two edged Sword of general and special Bastardy to divide the living Child or tear it in peices between the Bishop and the Temporal Judg or how it was then consistent with a Legale Judicium parium to expose a Child no Alien but the King 's Native Subject to be tried for all he had by a then Foraign Ecclesiastical Law and a Judg a sworn Canonical Subject to a Foraign Pope or that the wisdom of that Parliament intended to coin a Chimera of a Distinction without a difference of general and special Bastardy which neither they themselves understood nor any Lawyers which write to this day give any sensibly Interpretation or agree amongst themselves concerning it or that they who made the Statute to oppose the Bishops Jurisdiction of Marriage should create a Notion of general Bastardy which le Scrope says was not in Esse before to give them a new Jurisdiction which was to change the Laws of England which they positively refuse in the Statute it self to change Object 4 No Similitude of fetching the Laws of Athens to Rome and bringing the Romish Laws to England It is further alledged by Coke lib. 5.1 part 9. That as the Romans fetching divers Laws from Athens yet being approved and allowed by the State there they were called Jus Civile Romanorum And as the Normans borrowing all or most of their Laws from England yet baptized them by the name of the Laws and Customs of Normandy So albeit the Kings of England derived their Ecclesiastical Laws from others yet so many as were approved and allowed hereby and with general consent are aptly and rightly called the King's Ecclesiastical Laws o. England To which is answer'd That there is no similitude between making or changing the Laws of the Athenians which were Foraign Laws to become the Laws of the Romans and the making or changing either the Foraign Papal or native Provincial Canons or Ecclesiastical Laws into the King's Ecclesiastical Laws of England For First The Athenian Laws before they were made Denizons of Rome were not admitted in cumulo but Articulated and every Article examined one by one by the Decem viri or Ten Men as our usurped Ecclesiastical Laws were appointed to have been done by the Statute of 25 Hen. 8.19 by the Two and Thirty Men and likewise in time of Edward the Sixth by others but neither succeeded before the same was received for a Roman Law Secondly Such Athenian Laws as were pickt or garbled from the rest were by the Authority of the Legislative Power of Rome both Senate and People caused to be writ in Twelve Tables and inacted to be the Laws of Rome but in England there was never by Authority any Articulation selecting or garbling of Canon Laws effected nor the same reduced into Tables Written or Printed by any Act of Parliament Ecclesiastical Laws in an unknown Language Thirdly The selected Athenian Laws were written in the Roman Language to be understood by the People before they would be received as Roman Laws but there is no such thing in the Ecclesiastical Laws of the Holy-Church concerning Marriage or any thing else but they all still remain in the Language of the Beast and can be neither call'd the Laws of the Church which by the Scripture are forbidden to be spoke in an unknown tongue as appears 1 Cor. 14.19 It is said In the Church I had rather speak five words with my understanding that by my voice I might teach others also then ten thousand words in an unknown tongue It is as utterly unlawful therefore to make that a Law of the Church or an Ecclesiastical Law of Marriage which is in the unknown Language of Latin as it had been to have made any form of Prayer taken from the Romish Church though the Pater Noster it self the form of Prayer of the Church of England while it was in Latin for the Minister would then have been a Barbarian to the English man and the English-man a Barbarian to him and it is as bad for the poor English-man for his Law-sutes in Latin for a Wife in the Court of Arches and other Ecclesiastical Courts as it would be if his Prayers were again in Latin in the Church For though he pay his Lawyers dear to plead his Cause there he cannot understand for his Money whether they call him and his Wife Rogue and Whore or honest People or whether the Judg by his Sentence will give him his Wife or take her from him but by the implicit Faith of an Interpreter as let any one look on the Sentence of Divorce in Kennes Case Coke lib. 7.42 E. he may understand or not understand the same Ecclesiastical Laws are not the Laws of the Land Fourthly The Athenian Laws were not obtruded on the Romans by Conquest of their Bodies by the Temporal Sword or their Souls by the Spiritual Sword of Excommunication but the Ecclesiastical Laws of Marriage have been obtruded on England ever since the Conquest by the superstitious Terrors or actual force of Excommunication either Papal or Episcopal and never by consent in Parliament The suffering of an oppression therefore is no consent nor an abuse against Law an Use Custom or Law neither can a wicked Oppression Use Custom or Law in name only be turned into a Law of England except by consent in Parliament or other humane Power besides it is by the very before recited Statute of Merton declared That the Laws of the Church are not the Laws of England for when the Bishop quarrel'd that the Law of England as to Marriage was not according to the Law of the Church and would have had them changed into the Law of the Church the Earls and Barons with one voice answer'd We will not change the Laws of England Whereby it 's plain the Laws of England and Laws of the Church are opposite Laws and not the same and this is confessed by Coke himself in the exposition of his Statute of Merton 2 part Inst fol. 98. where he saith Here our Common Laws are aptly and properly called the Laws of England because they are appropriated to this Kingdom of England as most apt and fit for the Government thereof and have no dependence upon any Foraign Law whatsoever no not on the Civil or Canon Law other then in Cases allowed by the Laws of England and therefore he saith the Poet spake truly hereof Et penitus toto divisos orbe Britannos So as the Law of England is proprium quarto modo to the Kingdom of England therefore Foraign Precedents are
and Earth and all the good Angels his faithful Ministers to assist me in the defence of the faithful obedience to the Law of the Gospel and of his Church Assist me O Christ assist me O Jesu assist me O Holy Spirit Ed. Kelly It appeareth written on a White Crucifix My Grace is greater then the Commandment for my Grace is such that Mad-men shall attain Blessedness Verily I say unto you If I command a man to kill his Brother and he doth it not he is the Child of Sin and Death c. Dr. d ee Hereupon we were in great amazement and greif of mind that so impure a Doctrine should proceed from such as I from the beginning and hitherto had judged and undoubtedly esteemed good Angels and had unto Edward Kelly offer'd my Soul as a pawn to indemnifie Edward Kellys crediting of them as the good and faithful Ministers of Almighty God But now my heart was sore afflicted on many causes and Mr. Edward Kelly had as he now thought he had a just cause of leaving dealing with them any more and his Prayer to God had been as he said of a long time that he might have power to do it Afterward I made some Declaration to our Wives of this our great greif by reason of the Command laid upon us to use Matrimonial Acts between us four in common which thing was strange to the Women and they hoped of some more comfortable issue of the matter and so for that time I left off After Edward Kelly had been four hours in seeing new Apparitions giving him admonition to receive the same Doctrine with threatning of Judgment upon us if we should not and many other things told me We departed each to Bed where I found my Wife awake attending to hear some new matter of me And we being alone I then told her and said Jane I see there is no other remedy but as hath been said of our cross Matching so it must needs be done Thereupon she fell a weeping and trembling for a quarter of an hour and I pacified her as well as I could and so in the fear of God and beleiving of his Admonishments did persuade her that she shewed her self prettily resolved to be content for God's sake and his secret purposes to obey the Heavenly admonishment But Edward Kelly who had divers other Apparitions made to him in his own Chamber remained notwithstanding in his purpose of forsaking and utterly discrediting these Creatures A Spirit calling himself Raphael the Arch-Angel there speaketh to them who were not satisfied with the Testimony of Madimi Raphael Dear is thy Wife more dear is Wisdom and most dear ought I to be unto thee Thou being Elected tremblest and by doubting sinnest all these things are lawful unto you I admonish you as the Children of God to consider your Vocation and the love of God towards you and not to prefer your Wisdom before the Wisdom of the Highest whose Mercy is so great towards you Consider that if he find you obstinate the Plâ—gues of hainous Sinners and the contemners of the gifts of God shall fall upon you Therefore shew your selves lovers of him that hath led you and cover'd you with a mighty Sheild or shortly look for the reward of those who contemn the Wisdom and Majesty of the Highest I Raphael counsel you to make a Covenant with the Highest and to esteem his Wing more then your lives After some little discouse and conference there they went to Bed April 20th 1587. April 21th 1587. John Dee Edward Kelly Jane d ee and Jane Kelly promise to God though above their Carnal reason in Abraham-like faith and obedience to subscribe a Covenant to him to have one another in common April 22th 1587. Edward Kelly having on further consideration a new reluctancy concerning this promiscuous Matrimony makes a Declaration in writing that he would from that forward no farther meddle therein April 24th There are further Prayers made to God desiring a further manifestation of his pleasure concerning this new Doctrine so contrary to the Laws formerly promulgated by him A great flame of Fire appeareth in the principal stone standing on the Table before Edward Kelly and behold one suddenly seemeth to come into the South Window of the Chappel right against Edward Kelly but before that the stone was heaved up an handful high and set down again well which thing Edward Kelly did think signified some strange matter toward Then after the man who came in at the Window seem'd to have his nether parts in a Cloud and with spread abroad Arms to come towards Edward Kelly at which sight he shrunk back somewhat and then that Creature took up between both his hands the principal stone and frame of Gold and mounted up away as he came Edward Kelly catch'd at it but could not touch it at which thing so taken and carried away and at the sight thereof Edward Kelly was in great fear and trembling but Dr. Dee was glad and well pleased A Fire next appears in the lesser stone left behind on the Table and a man in the fire with flaxen hair hanging down on him being naked to the Paps with spots of blood upon him and in the shape of Christ Christ If I had intended to have overthrown you or brought you to confusion or suffered you to be led into temptation beyond your strength and power then had the Seas long since swallowed you yea there had not a Soul lived amongst you But the Law and tidings of Gladness in Mankind are both grounded in me I am the beginning and the end behold I was even my self the figure of Misery and Death for your Sins why therefore disdain you to be figured after me And as I have made you the figure of two People to come so have I likewise sanctified you in an holy Ordinance giving you the first-fruits of the time to come contrary to my self I teach you nothing for this Commandment is not to be given to Mortal men but is given to you to manifest your Faith I I am the first and the last and I will be Shepherd overall that the Kingdom of my Father may come and that my Spirit may be on all flesh where there shall be no Law nor need of light for I my self will be their light for ever I am Holy and Holiness it self and out of me cometh no unclean thing and if there be any of you that seeketh a Miracle at my hands and beleiveth in my words let him or her present themselves here next Monday and he shall perceive that I was the Judg of Abiram and the God of Abraham May 3d. being Sunday 1587. Stylo Novo A Covenant with God is drawn into form that according to his new Commandment they will by Abraham-like-faith and obedience use Matrimonial Acts with one another in common and was subscribed by John Dee Edward Kelly Jane Dee and Joan Kelly at Trebon-Castle The Covenant being thus formed written
conclusions or similitudes to run on four Feet or to say Because all these Communicants being Men and Women are by the Scripture call'd one Body Figurative or Politick Therefore to conclude that they are one Body natural and one Person natural And as no one body natural or one person natural can have a distinct propriety or a right of Action against it self so none of these Communicants Men and Women can have the same against one another Excellent Doctrine for the one Body made of many and Society of the Adamites I shall not here dispute which is the greatest Absurdity of Transubstantiation of Bread into Flesh in the Mass or of the Flesh of a Woman into the Flesh of a Man in Marriage or whether gains most the Priest by the former or the Lawyer by the later Cheat. But this is easily shewn that the Communicants in the later Fantastick Sacrament lose more Temporally then in the former though perhaps the other may Spiritually And in Compliment to the weaker Sex I shall first do them right in shewing the manifold mischeifs thereby ensue to them Wife made a slave incapable of propriety First By the fiction of their being made the Priest one Person with the Husband Whatsoever they have is the Husbands and what the Husband hath is his own they lose all the right of Propriety in their own Goods to the Husband as perfectly as if they had been bought by him for Slaves at a Market though the Husband hath therefore on the Wedding-Day transubstantiated into him a very fine Wife all Silk and Satin Velvet Cloth of Silver Cloth of Gold Pearl and pretious Stones Yet after the firâ—â— Month when the Moon changeth he may sell away St. Paul's Impertinent putting the Money in his pocket and transubstantiate her into a plain Petticoat and Wastcoat to last as long as she lives and when she dies bury her in Woollen and this is all the poor Woman gets by having him before Mr. Parson in his Temple and making him to promise with all my Worldly Goods I thee endow which made a wary old Gentleman as saith the Woman's Lawyer pag. 121. an acquaintant of his lest his Son-in-law though he did not take his Daughter down in her Wedding-shoes should let her after go without stockings and break her heart to see all her old feathers moult and no new spring and enforce her to take new Wings to fly to Heaven before he was willing to spare her therefore he in good earnest bound his Son-in-law in a good sound bond to give his Daughter every year so many Gowns Kirtles pairs of Silk-stockings c. Her Estate forfeited and consumed by her Husband's Vices 2. If her Husband hath mortgaged or fraudulently made away his Estate before marriage if he carelessly after marriage spend it on other Women Drinking Diceing or other viciousness if he is Out-lawed Attainted for Felony Rebellion Treason or taken in Execution for Debt or Surety-ship all her Lands Goods and Portion shall be taken from her during his life which may be longer then hers and she may wear Rags or starve if she can neither work nor beg Rob'd of her Trust in the Testator's Goods as well as her own 3. If she have a great Estate as Executrix her Husband will change the bonds into his own name sell the Leases change the propriety of all the Goods and when he dies leave her not a farthing of the Testator's Goods or her own The Turk is not so turkish to rob his Wife who is a Free-woman or to transubstantiate the propriety of her Goods into his for so 't is said Alchor cap. 4. pag. 49. O ye that believe in God it is not lawful for you to inherit what is your Wives by force and this is not only of their own goods they brought with them but likewise of the gifts of the Husband 's Goods given them by himself for it is further said ibid. Take not violently away what you have given them unless they be surprized in manifest Adultery But amongst Christians Harlots are in better condition then Wives for though the Scripture 1 Cor. 6.16 sayes in the same words of an Harlot as of a Wife Harlot loseth no Propriety Know ye not that he which is joyned to an Harlot is one Body for two saith he shall be one flesh yet never was so absurd Exposition made that the Harlot loseth the propriety of her Goods and Rights to him who lies with her It appears likewise by the Roman forms of Divorce that the married Wives who were Free-women notwithstanding their marriage retained their propriety the words of which form were Res tuas tibi habeto the word tuas shews propriety 4. He may cheat her in all his Promises or Contracts made with her before marriage as a Man promised a Women who knew no Quirks in Law if she would marry him to leave her so much worth after his death and she thereon marries him this promise is extinguished by the marriage and she shall never have benefit of it Compell'd to pay her Husband's Debts 5. He may by this Transubstantiation by many tricks in Law eause others to bring actions without cause against his Wife for his own use and Arrest Out-law and cast her in Goal at his pleasure A. B. and D. his Wife were bound by obligation in forty pounds for payment of twenty he suffer'd a Judgment by default and after suffer'd his Wife to be taken in Execution and put in Prison by his assent whereby the Wife was driven to procure her own friends to pay the Condemnation for her Husband and redeem her from her Turkish Pateroon otherwise she might long enough have lain in Algiers for he would till this was done give no Warrant for any Writ of Error and this was the Case of the good Wife at the Clock in Aldersgate-street and the Judges pittied her but little for as my Manuscript says they only smiled at the unkind and subtile device And this was done 42 Eliz. which shews that the poor Woman married by Priest though they had a Queen Regnant there had little better justice done them than now Made an Out-Law a Villain a pagan an Alien a Person forfeited c. 6. Another mischief is by this Transubstantiation she not only loses the right of propriety as a slave but the right of action as an Out-law disabled to sue for any injury done her and to express the same more full and plainly she by this blessed Sacrament of marriage by a Priest is made a Villain a Pagan an Alien an Excommunicate a Nun of Lisbon an attainted in a Praemunire a non habens personam standi in judicio against her Husband a person convicted forfeited and confiscated to his own use and what is worst of all when he hath robbed and rifled her of all she hath he may exercise his Tartarian Authority and beat her because she hath no more Is this the
humble compllment with my Body I thee worship a Divinity as Idolatrous as that of the rude Indians who first worship their Cotton-Idols and if their Prayers succeed not beat them What though the Jewish Scripture saith Gen. 3.16 Thy desire shall be to thy Husband and he shall rule over thee yet is this to be intended in acts Matrimonial not Magisterial And the Christian Scripture makes you requital and Eph. 5.28 Men are commanded to love their Wives as their own Bodies they must therefore first beat their own bodies or suffer their Wives to beat them before they beat theirs and you are made as great Rulers over the Husbands Bodies as they over yours 1 Cor. 7.4 And likewise also The Husband hath not power over his own Body but the Wife Ladies I pity you that Scripture has been so ill translated and ill expounded in all your concerns of marriage and the more in regard you have as bad dealing from the Expositors of the Law as the Gospel for Brook 12 H. 8. fo 4. says plainly Beaten by her Husband hath no Remedy That if a Man beat an Out-law a Traytor a Pagan his Villain or his Wife it is dispunishable because by the Law these persons can have no actions But I wish Ladies the next Law made for you may sort you with better company or farewell to England to be the Paradise of Women Husband suffers others to abuse and ravish her she hath no remedy 7. The Husband may not only be cruel to his Wife himself but command others to beat and abuse her and she hath no remedy yea if another Ravish her she hath no remedy to recover damage unless he will assent to joyn with her in the action as 8 H. 4. fo 21. A Woman was Prisoner in the Marshalsy and made a suggestion to the Court that the Marshal's man had ravish'd her in Prison Gascoigne commanded the Marshal to take his Man to his custody and his staff from him And the Court told the Woman that she alone could not bring the Appeal Sans Sons Baron but if her Husband would come and they two together prove the Rape the Ravisher should be hanged or otherwise not a Woman is in a sweet case if her Man is a Wittal and willing to make money of her Made a prey to all will seize her 8. This encourageth vile persons to rob the Noble and Rich of their Daughters and makes the City of London so insecure for young Ladies that few great fortunes escape from being betrayed to persons unworthy of them whereas if marriage changed not the propriety goods and right of the Woman to the Man but left the same as full in the right of the Woman and her self in as full ability and capacity to Purchase and Sue for her self as before she and her friends would be able to take some course to preserve her and her Estate and such Insidiators be discouraged where they saw their hopes of making a prey taken away 9. This gives the Husband if she dies and leaves Children power on a second Marriage to give her Goods to a Step-Mother and cast off her Children 10. It gains the Husband power to get as many Women with Child as he pleaseth and to maintain them and their Children with the Goods of the Lawful Wife Transubstantiation brings the same mischief to the Husband as to the Wife The Man again is as bad mischiefed by this Transubstantiation as the Woman 1. This gives power to steal and esloigne all her Husband's Substance and put it into the hands of his Enemies 2. It gains the Woman power where she is not able her self to hire unknown persons with her Husband's Goods to rob beat disseize the Husband and Esloigne his Goods from him 3. This gives her power to lay all her secret and unknown debts both true and feigned by her Confederates on her Husband and to undo him 4. Gives her power to commit as many Trespasses either with tongue or hand truly or by confederacy with her Complices making her Husband liable to pay the damage and undo him 5. It Gives her power to hire Adulterers with her Husband's Goods Whereas it is well known Men and Women of all estates and conditions if they have not been before a Priest in a Temple will live forty years together in one House and dare not rub beat or injure one another because they have liberty to sue for damage which benefit this sottish Sacrament of Priests and Lawyers gives not persons transubstantiated A Law would be thought very absurd and unjust which should Enact That no Man or Woman should sue one another in the Common-wealth what horrible wickednesses and villanies would be committed by the two Sexes one against onother but it is more unjust to make such a Law in Families and more unjust to make such a Law between Men and their Wives then in Families For in the Common-wealth such as are persecuted in one City can fly to another In Families such as like not one anothers company and are unmarried can be received and have protection in other Families But Men and their Wives are chained together and cannot avoid the injuries of one another and have no remedy unless they have the same liberty too for injury and propriety of their own as all other Subjects have and not compelled to live as Out-laws deprived of benefit of Law A Note taken at the King's-Bench of the miraculous Transubstantiation of a Shoulder of Mutton between a Man and his Wife Being a Puny I went as others did in a morning to Westminster to the King's-Bench to hear and see the Forms of proceeding Transubstantiation of a shoulder of Murton where amongst others a Counsellor moved at the Bar in arrest of Judgment and for Cause alledged That the Plaintiff in his Declaration complained against A. and B. his Wife that amongst other Goods they had taken Armum ovillum Anglice a shoulder of Mutton from him and converted the same to the use of the said A. and B. his Wife the ground of the exception against that part of the Declaration was because though the Wife eat her share of the Mutton with the Husband yet the same ought not to be said to be converted to the use of the Wife but only of the Husband the ratio rationis was because the Wife is one person with the Husband that is to say transubstantiated into him and she being transubstantiated the shoulder of Mutton which she eat must be likewise transubstantiated into him and so the shoulder of Mutton was converted wholly to his use and not to the use of the Wife And so some Precedents were cited for it and others contrary which profound piece of Popish Transubstantiation did so puzzle the Court that they would give no resolution then but would consider of it and settle a course in it which made me being not arrived beyond natural simplicity to think them all mad who
the colour and pretence of a former Contract made with another the which Contract divers times was but very slenderly proved and often but surmised by the malice of the party who desired to be dissolved from the Marriage which they liked not and to be coupled with another There was an Act made That all and every such Marriages as within the Church of England should be Contracted and Solemnized in the face of the Church and Consummate with Bodily knowledge or fruit of Children or Child being had between the parties so married should be by Authority of the said Parliament Deémed Iudged and taken to be Lawful Good Iust and Indissolvable notwithstanding any pre-contract or pre-contracts of Matrimony not Consummate with Bodily knowledge which either of the Persons so married or both had made with any other Person or Persons before the time of Contracting of that Marriage which is Solemnized or Consummated or whereof such fruit is ensued or may ensue as by the same Act more plainly may appear Since the time of which Act. although the same was Godly meant the unruliness of Men hath ungodlily abused the same and divers inconveniences intolerable in manner to Christian Ears and Eyes followed thereupon Women and Men breaking their own promises and faiths made by the one unto the other so set upon sensuality and pleasure that if after the Contract of Matrimony they might have whom they more favoured and desired they could be contented by lightness of their nature to over-turn all that they had done afore and not afraid in manner even from the very Church-door and Marriage Feast the Man to take another Spouse and the Spouse to take another Husband more for Bodily lust and carnal knowledge then for surety of faith truth or having God in their good remembrance contemning many times also the Commandment of the Ecclesiastical Iudge forbidding the parties having made the Contract to attempt or do any thing in prejudice of the same Be it therefore Enacted by the King's Highness The Lords Spiritual Temporal and the Commons in this present Parliament assembled That as concerning pre-contracts the said former Statute shall from the first day of May next coming cease be repealed and of no force or effect and be reduced to the estate and order of the King 's Ecclesiastical Laws of this Realm which immediately before the making of the said Statute in this case were used in this Realm So that from the said first day of May when any cause or contract of Marriage is pretended to have beén made it shall be lawful to the King 's Ecclesiastical Iudge of that place to hear and examine the said Cause And having the said Contract sufficiently and lawfully proved before him to give sentence for Matrimony commanding Solemnization Co-habitation Consummation and Tractation as it becometh Man and Wife to have with inflicting all such pains upon the disobedients and disturbers thereof as in times past before the said Statute the King 's Ecclesiastical Iudges by the Kings Ecclesiastical Laws ought and might have done if the said Statute had never been made Any Clause Article or Sentence in the said Statute to the contrary in any wise notwithstanding Of the Law making private Marriage or carnal knowledge between persons not prohibited by the Law of God to marry Fornication Private Marriage or carnal knowledge is of two sorts the one without publick Witness the other without any Witness at all and both by the Popish Laws because if permitted they would spoil their gains are prohibited and called clandestine Marriages The publick Witnesses are the Priest or Magistrate private Witnesses are any other Marriage without Witness nor clandestine not appointed by Law The Law of England makes all private Marriage and carnal knowledge without publick Witness Fornication The Law of Scotland in some cases relieves though there be a defect and no publick Witness of the Marriage by the Priest as appears in the before cited Author Craig Feud 269. If there appear private Witnesses of Men or Instruments but in all cases likewise where there are neither publick or private Witnesses they leave it to be Fornication That which I here affirm against both is Marriage without Witness not Fornication 1. That carnal knowledge between parties not prohibited by the Law of God to marry is not Fornication nor any other Crime though in the highest secrecy and without any Testimony of Men or Instruments whatsoever 2. That privacy of Marriage being not prohibited nor publication commanded by God all parties ought to have liberty of Conscience to use the one or the other according as suits best with their occasions As to the first there are these reasons That private Marriage without Witness is not Fornication nor any other Crime 1. There is no Law of God prohibiting private Marriage without Witness Where there is therefore no Law there is no transgression Rom. 4.15 2. It is before shewen That for any human Law to prohibit Marriage or Meat where not prohibited by the Law of God the same came from the Devil 1 Tim. cap. 4. v. 1 2 3. And that therefore the Law of the Pope and Council of Trent which nulls all Marriages except made before a Priest in a Temple and two Witnesses came from the Devil and the Priests of Priapus and Venus for filthy lucre to the Priests 3. Isa 45.7 It is said I create evil And Isa 5.20 It is said Wo unto them that call good evil and evil good That put darkness for light and light for darkness Here is therefore a curse pronounced against those who if God created not marriage without Witnesses evil of their own heads call it evil and where God created it to be in darkness and natural modesty of their own heads will have it by Torch-light and the whole Parish of Witnesses 4. All Fornication is Polyandry and Confusio seminum whereby the Child cannot know the Father nor the Father the Child but here is no such thing it is impossible therefore to be Fornication Liberty Conscience to marry with or without Witnesses As to the second Point which I am to maintain That privacy of Marriage without Witnesses being not prohibited by the Law of God nor publication commanded by the same no human power ought to presume to prohibit what Marriage God hath not prohibited but all persons ought to be left liberty of Conscience to marry publickly or privately with or without Witnesses as it suits best with their conveniences and occasions as is the use and practice in all other civil Contracts which men do with or without Witnesses as they think best and were never accused of sin if they had no Witnesses whereon to bring their Action only that Party is justly charged with sin who wilfully breaks his Contracts because there are no Witnesses but God to prove it against him Against these Positions I shall first answer the Objections and then shew further Reasons to confirm the same
the Child as to Succession as appears Deut. 21.15 If a Man have two Wives one beloved and the other hated and they have born him Children both the beloved and the hated and the first-born Son be hers that was hated Then it shall be when he makes his Sons to inherit that which he hath that he may not make the Son of the beloved first-born before the Son of the hated who is indeed the first-born but he shall acknowledg the Son of the hated for the first-born in giving him a double Portion of all be hath for he is the beginning of his strength and the right of the first-born is his The Reasons given by Skene why Nothus should signifie a Bastard are 1. Because he saith Bastards are commonly got and procreat of Common Women who are in Greek called Bassaris As to the Etymology 't is answer'd before as to the matter of the Children of Common Women 't is deny'd that they have commonly any Children at all for either they make themselves barren by some wicked Arts of Sterility according to the Poet. Et jacet aurato jam rara puerpera lecto Tantum hujus Artes tantum Medicamina possunt According to which we do not hear of Lais Thais Phryne Flora or others who are famous or rather infamous at the Trade to have had any Children at all which was one cause that Flora made the Common-wealth her Heir And we see by experience that the Children born as they call it out of Wedlock are for the greatest part of such as have kept themselves chast to one Man yea more chast then many Wives who have been coupled to the Husbands by a Priest in a Temple or a Justice of Peace in his Hall And further in Nature the too thick sowing of the field and the too soon plowing after sowing destroyes the Harvest So in greatest probability such a Woman as hath a Child ought to be presumed she hath not been common and the Child cannot be here filius populi but his Father is better known then of the Children of a Woman married by the Priest in a Temple though the Husband hath been always within the four Seas 2. He says Nothia signifies by the Athenian Law a Portion given to a Child not born within Wedlock which was not to exceed Mille Drachmae ergo Nothos signifies a Bastard Negatur sequela For the Child which he himself makes a Bastard he says cannot be Heir or Successor to any which is he cannot be Successor Testamentory or otherwise to any filial Portion at all which the Athenian Law did suffer him to be so it exceeded not the value of Mille Drachmae And further Reg. Majest cited by him saith a Bastard can neither be Heir or succed to the Lands or Goods of the Parents nor the Parents to him A most inhuman Law and subverting the course of Nature which the Athenian was not And what was the end of this Episcopal cruelty of taking away the inheritance of the Parents from the Child and of the Child from the Parents but that they themselves might be Successors to his movables and if he bought not of them for money his Legitimation then they might forfeit all was left to the King not out of any good will they bore to the King but to force the parties Parents and Children to pay them what they pleased or quod non capit Christus capiat fiscus a kind of Anti-Christian Blasphemy against Christ and Treason against their Princes to fâ—ill their Treasuries with the spoils and curses of miserable Children and Parents under pretence of the names of God and the King to make them thought Patrons and Accessaries to their Rapines 3. He says Ismael was a Bastard and succeeded not to the inheritance but had a Portion As to Ismael's being a Bastard it is false and contrary to the Text of Scripture Gen. 16.3 which expresly saith Agar his Mother was Abraham 's Wife If his Mother therefore we Abraham's Wife he could not be Abraham's Bastard for he himself affirms before that a Bastard is got of a Common Woman 4. Abraham's giving him a filial Portion and the Sons of Keturah likewise their filial Portions is an acknowledgment and not a dis-acknowledgment of them to be his Sons Therefore though he excluded them from the inheritance he doth not intend thereby to make them Bastards for it was the Patria potestas of every Father then to dispose of his own Estate how he pleased and to those who pleased him best and might give the inheritance from the eldest if he thought fit till after restrained by the Law of Primogeniture to give him a double Portion 5. The Arabians who descended from Ismael and Turks to this day affirm Ismael to be the right Heir and not Isaac and on no other Title possess the Land of Palestine but on the Primogeniture of Ismael 'T is therefore very unadvised to call Ismael Bastard against a Succession so long derived from him by the Sword without better reasons or a better Sword to argue it against the possessors 6. Other reasons have been made likewise in behalf of the Primogeniture and Legitimation of Ismael which shew him to have been no Bastard as first That the Marriage between Abraham and Sarah being Brother and Sister was Incestuous and therefore the Marriage with Agar more Lawful then hers Next that uncertainty of Filiation was more in Isacc then in Ismael and Ismael had better probation of himself to be the Son of Abraham then Isaac had for Agar was kept in perpetual custody of her Husband from the time of his begetting to her bringing forth Ismael whereas Sarah was let loose to the custody of Abimelech and his Courtiers 7. He says for a Reason That a Child born out of Matrimony is not Sib or Kin or of Consanguinity to any nor any to him which is contrary to the express Text of Scripture Levit. 21.2 There shall none be defiled for the dead amongst the people except for his Kin that is near to him that is for his Mother and for his Father and for his Son yet here was no Father or Son made by the Ceremony of a Priest in a Temple Not much unlike to this was the whimsey which lasted a while of our Episcopal Courts and Common Lawyers that a Mother was not kin to her Son as appears Swimburn 7. part 119. The Case was in the Reign of King Edward the Sixth Charles Duke of Suffolk having issue a Son by one Venter and a Daughter by another made his last Will wherein he devised Goods to his Son after whose death the Son also died intestate without Wife and without issue his Mother and his Sister by the Father's side for she was born of the former Venter being then living the Mother took the Administration of her Son's Goods by the Stat. 21 H. 8.5 whereby it is Enacted That in case any person die intestate the Administration of his Goods shall be
there is no such Miracle ensues from Episcopal Unction or Consecration neither do they shew any sign of Mission to Anoint as Samuel did but every man that is born hath a sign of Mission from God to Contract with that Prince under the protection of whose Sword he happens to be born to yield him Subjection for Protection and to concur with the whole Body of the other Subjects to present him with a Symbol or sign of the same with a Crown or Oil as here the men of Israel and Judah do to David 2. David anointed by his Parliament That the Anointing which gave David the Investiture of the Kingdoms was made by the Representative of the People in Parliament and not by the Priest for it is said That all the Tribes and all Israel and all the Elders which were a Senate or Parliament to treat for the People and make a League and Covenant with the King for it was impossible for him otherwise to treat with so great a multitude as all Israel had they not agreed to Elect a fit Representative for them therefore it is said The Elders anointed David and no mention made of the Priest neither had the Priest any Law of Moses to anoint Kings 3. That as there was no Crown sent David from Heaven for his Coronation whereby Pontifical men might pretend to have the disposing so there was no Oil sent thence for â—is Anointing but he received both from the People And surely the Mission of the Oil of Rhemes thence is as great a Fable as of the Crown of Nimrod or of the Image which fell from Jupiter neither did there need any Consecration of either for by the Customs of most Nations Crowns and Unctions were but civil Ceremonies of Honour given to the Parties which received them not only in Elections of Kings but almost in all other Solemnities as Military Triumphs Olympick and other Games yea even in their ordinary Feasts both of Aegyptians Greeks and Romans Habent Vnctae mollia serta Comae Ovid. Which shews both Crowning and Anointing of their Guests with Garlands or Crowns of Flowers and Unction with Oil of the Olive both which materials though more properly made by God than Crowns of Gold and Oils confected and Consecrated yet were esteemed but as civil Ceremonies and were a ministred by Lay-hands without a Priest And of this civil Festival Honour of Anointing used amongst the Jews as well as other Nations Christ is pleased to take notice Luke 7.36 My Head with Oil thou didst not anoint but this Woman hath anointed my Feet with Ointment And though both Coronation and Unction were but civil Ceremonies and of humane Institution where no Miracle testified a Divine yet is David called God's Anointed more truly than if he had been anointed by the Priest seeing God gave the Priest no Mission but yet himself turned the Hearts of the People by the civil signs of Coronation and Unction to acknowledg David for their Sovereign for which he himself giveth thanks and saith Psal 18.47 God subdueth the People under me 4. That David doth not make a League and Covenant with the High Priest but with his Parliament who were the Convention of Elders who anointed him 5. That though there had been long Civil Wars between Judah who followed David and Israel who followed Isbosheth the Son of Saul and Abner his General was dead and Isbosheth was dead and there remained with him Victorious and Veteran Armies yet neither Judah nor Israel anointed him till he had first made with them a League and Covenant 6. From hence may be discover'd the great Mystery of Iniquity whereby Popes have terrified Emperors and Kings as their Vassals to receive Crowns and Unctions from them which hath been only by persuading That none but Bishops could Crown or Anoint them the manifold mischiefs of which to Princes and People are too long here to be recited only whosoever will consider them will find it clear That Bishops who have pretended or may pretend to so dangerous a Tâ—nent as That none but they have Right to make Coronations and Unctions are no fit Judges of Successions to Crowns They assume in the Judgment of all matters concerning Marririage Filiation Aliment and Succession to be above Appeal to the Kings Courts It hath been already shewn that Bishops by assuming a Power Jure Divino without shewing a sign of Mission and by false translating Scripture and by corrupting and interdicting the Press exercise a Power superior or equal to the Legislative from which doth follow That such as are Legislators or assume or exercise such Power ought not to be Judges Delegate 1. Because Legislation Supream and Judgment Delegate are two distinct Offices and ought not to be confounded 2. Because it is Repugnant that a Legislator should be a Delegate to himself for in Presentia Majoris cessat potestas Minoris the lesser Power is lost in the greater 3. If wrong Judgment happen to be given there can be no appeal but to those who did the Wrong whereby they become Judges and Parties and Judg in their own Case 4 A Power Delegate to Judg without Appeal ceases to be a Delegate Power and is greater than the Legislative which Power that it is assumed by the Bishops in all Matrimonial Causes is the thing next to be shewn Of the abominable Judgment passed by the Common Law Judges in Kennes Case Coke lib. 7.42 whereby they gave away the Supremacy of the King's Courts to the Bishop and made them in all Causes Matrimonial subject to no Appeal Mich. 4. Jac. In the Court of Wards between Thomas Robertson and Elizabeth his Wife Plaintiff and Florence Lady Stallenge Defendant The Case was This Christopher Kenne Esq was seized of the Mannor of Kenne in the County of Sommerset holden by Knights Service in Capite and 37. H. 8. de facto married Elizabeth Stowell and had Issue Martha the Mother of Elizabeth one of the now Plaintiffs and after 1. 2. Ph. Mar. in the Court of Audience between the said Christopher Kenne Plaintiff and Elizabeth Stewell Defendant the Judg there gave a Sentence in these words Pretens ' tractat ' contract ' sponsalia Matrimonium quin verius Effigiem matrimonij inter Christopherum Kenne Elizabeth Stowell in Minore sua impubertatis aetate eorundem aut eorum alterius de fact ' habit ' contract ' celebrat ' fuisse esse eosdemque Christopherum Eliz. tam tempore contractus Solemnizationis dict' pretens ' matrimonij quam etiam continuo postea idem matrimonio pretens ' Solemnizationi ejusdem dissensisse contravenisse Reclamasse Reluctasse ac eo praetextu hujusmodi Pretens ' tractat ' sponsalia matrimonium de jure nullum nulla irritum irrita cassum cassa invalidum invalida minus efficax inefficacia fuisse esse viribusque juris caruisse carere carere debere Nec non Antedictos Christopherum Kenne
Eliz Stowell quatenus de factor fuerunt ad invicem matrimonio ut predicitur copulat ' ab invicem Separand ' divorciand ' fore debere pronunciamus decernimus declaramus Eosque Separamus Divorciamus eisdemque Christopher ' Eliz. licentiam Libertatem ad alia vota convolanda concedimus tribuimus impertimur per hanc Sententiam nostram definitivam sive hoc finale nostrum decretum quam sive quod ferimus promulgamus in hiis Scriptis c. And after the Divorce the said Christopher Kenne Espous'd and took to Wife Elizabeth Beckwith And after Anno 5th Eliz. before certain Commissioners Ecclesiastical the said Elizabeth Beckwith Libelled against the said Christopher Kenne That before the Marriage between them contracted he had Married with Elizabeth Stowell on which process was awarded against Elizabeth Stowell pro interesse And upon due examination of the Cause it was Sentenced That the Marriage between the said Christopher Kenne and Elizabeth Beckwith was lawful and Sentenced them ad Exequenda Conjugalta obsequia c. And that the said Christopher Kenne was never lawfully Espoused unto the said Elizabeth Stowell and after the said Elizabeth Beckwith died after whose death the said Christopher took to Wife the said Florence by whom he had Issue one Daughter and called Elizabeth and died And Anno 36th Eliz. it was found by Office in the County of Sommerset by Force of a Mandamus after the death of the said Christopher Kenne that the said Elizabeth Kenne was his Daughter and Heir who was within Age Viz. of the Age of Ten Months The Queen granted her Wardship to Sir Nicholas Stallenge and the said Florence then his Wife on which the said Martha alledged her self to be Daughter and Heir to the said Christopher Kenne and with her Husband Silvester Williams Exhibited their Bill in the Court of Wards against the said Sir Nicholas and Florence alledging That the said Martha was Daughter and Heir of the Body of the said Elizabeth Stowell his lawful Wife and that they the said Christopher and Elizabeth Stowell at the time of their Marriage in Anno 37. H. 8. were both of them above the Age of Consent and that they Cohabited together Nine or Ten Years before the said supposed Divorce during which Cohabitation the said Martha was procreate between them and therefore pray they may have License to Traverse the said Office To which Bill the said Nicholas and Florence put in their answer and the Plaintiff examined divers Witnesses and before Publication Sir Nicholas dies and thereupon the said Silvester and Martha exhibited a Bill of Reviver against the said Florence and after Martha having Issue Elizabeth the Wife of the now Pl. died after whose death the said Thomas Robertson and Elizabeth his Wife bring a new Bill of Reviver to revive the first Sute in which the Witnesses were examined and this Case was refer'd to Fleming and Coke Chief Justices and Tanfeild Chief Baron and Selverton and Williams Justices and Sing and Altham Barons of the Exchequer If it be asked for what reason was such a Sentence given my Lord Coke nor the rest will neither tie the Bishop nor themselves to shew any for he saith The lawfulness of Marriage belonging originally to be tried in the Ecclesiastical Court if the Ecclesiastical Judg that is the Bishop Sentence a Marriage Null We that is the Judges of the King's Courts ought to give Faith that is implicit Faith to their Sentence as they do to our Judgment whether true or false right or wrong reason or no reason and so he saith Where the original cause of Sute concerning Marriage belongs to the Common Law Courts the Ecclesiastical Judg is to give like Faith to them as 22. E. 4. in Corbets Case which was this Sir Robert Corbet had by Elizabeth his Wife two Sons Robert the Elder and Roger the Younger and dies Robert the Elder being under the Age of Fourteen takes to Wife one Matilda and they dwell together tâ—ll full Age Et habuerunt carnalem copulam cogniti reputati pro viro uxore palam And after the said Robert put off the said Matilda having no Issue by her and Married one Lettice in the life of the said Matilda and hath Issue by her Robert and dies Lettice Preached openly that she was the lawful Wife of Robert and her Son a mulier Roger the Son of Sir Robert Corbet sues in the Spiritual Court to Reverse these Espousals between Robert his Brother and Lettice for which Lettice sues a Prohibition In which Case it was Resolved 1. That if Robert and Matilda had had Issue and had been unjustly Divorced and after Robert had Married Lettice and had Issue and died that as long as the unjust Divorce had continued the Issue of Matilda could have had no remedy at Common Law the same gives so great Faith to the Sentence of the Bishop 2. That here Roger might sue at Common Law notwithstanding the second Marriage in regard the same was void being made while the first Wife lived On which may be noted the injustice of the Bishops being above Appeal in Judgment in these particulars 1. Here is a lawful Matirmony Consummate by the Birth of a Child and two Persons thereby indissolubly joined together by the Act and Law of God put asunder by the Bishop and his Papal Law Here is a Dispute from Generation to Generation concerning the Validity of a Marriage and Succession to an Inheritance Against the Marriage is alledged That the same was declared void by a Sentence of Divorce or rather of Nullity given by the Bishop Against it is answered by Elizabeth a Descendent of the said Marriage and the right Heir to the Inheritance that the cause of the said Sentence was false And she offer'd to prove that the said Christopher Kenne and Elizabeth Stowell were both above the Age of Consent to Marriage in Anno 37. H. 8. and were then lawfully Married and Cohabited together Nine or Ten Years and the said Martha was lawfully Procreate between them before the pretended Divorce was made Was there ever Probation more Relevant tender'd was there ever better Reason alledged by a poor Lady to defend her Inheritance On this Hoskins Bacon Dodridge and other Council Argued so long from Term to Term as was enough to spend a good Portion before it was got But alas to no purpose for had this Elizabeth been Queen Elizabeth her self these Judges will give no Relief or Hearing against a Bishops Sentence unless his Lordship will please to Revoke it himself And notwithstanding all Arguments to the contrary it was accordingly resolved by all the Justices and Barons That she must go without her Inheritance and her Mother Martha remain a Bastard till the Bishop who made her so should again unmake her which was in plain English to adjudg there should be no Appeal in any case of Marriage Filiation Aliment or Succession from the Bishops to
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