The CASE OF DIVORCE AND RE-MARRIAGE thereupon Discussed By a Reverend Prelate of the Church of England and a private Gentleman Occasioned by the late Act of Parliament for the Divorce of the Lord ROSSE I know that Messias cometh which is called Christ when he is come he will tell us all things Joh. 4. 25. LONDON Printed for Nevill Simmons at the Prince's Armes in St. Pauls Church-yard 1673. READER THese Papers were drawn up when the Business of the Lord Rosse was debated in Parliament and had their rise from That transaction The first part of them was Written by a private hand and was occasioned by a Discourse with a learned Bishop now with God upon that Subject and being presented to him he returned the following Animadversions upon it to which the Answer Here set down was Then given by the same hand The whole is now made publick for thy information and satisfaction about this matter Touching Divorce and Remarriage thereupon AN incapacity for the ends of marriage previous to it makes a Nullity of the marriage upon a subsequent discovery of it This needs no determination by any positive Law For the Law of Nature and the reason of the thing it self gives an universal determination of it every where By the Law of Moses unchastity before Marriage or contraction if concealed and all unchastity after Contraction or Marriage was to be punished with death and no mention made in the Law of any such thing as Divorce in that Case Moses in the 24th of Deuteronomy gave This allowance for Divorce vers 1 2. When a man hath taken a Wife and Marryed her and it come to pass that she find no favour in his eyes because he hath found some uncleanness in her Then let him write her a Bill of Divorcement and give it in her hand and send her out of his house And when she is departed out of his house she may go and be another mans wife which was but an allowance in some Cases and in those too did rather liberare à Poena than a Vitio We need not inquire farther why this was done our Saviour has given us a perfect account of it such a permission was granted to them because of the hardness of their hearts and the unruly stubborn behaviour of the Jews towards their Wives in that particular Moses who we are to consider as a Legislator to a State as well as a Church suffered it to be as the most tolerable remedy that That people were capable of and in favour chiefly of the Women This permission of Moses came in the practice of it to be so far extended amongst them that whoever desired to put away his Wife was allowed to do it without giving any reason at all besides his own pleasure why he did it This we may see in Mr. Selden ' s Vxor Haebraica and Grotius tells us Quod Consuetudo legis interpres Nullam à marito causam dirempti Matrimonii exegerit and adds Alioqui enim nou potuisset Josephus Maria clam dimittere Potuit igitur Maritus dicere quod Romae dixit Paulus Emilius sibi optimè notum quà calceus urgeret This custome was in it self greatly inconvenient and as one sayes of it For a man Nulla aut levissima de causa uxorem dimittere ut Jam de primaeva dei institutione nihil dicam vel sola charitatis lex prohibebat sive uxorem respicias quae veluti supplex ad Mariti Tutelam confugit sive communes etiam liberos Heathen Nations rarely practised any such thing the Romans in particular of whom an antient Author sayes Romani cum nulla lex repudium vetaret annos tamen quingentos viginti sine exemplo repudii â—gerunt Nec quisquam fermè scriptorum est qui non gravitèr reprehendat Marcum Tullium Ciceronem quod levibus de causis Terentiam dimiserit Our Saviour in the Gospel before the Pharisees asked him any Question about this matter which they did and their Question and his answer is set down in the 19th of Matthew and the 10th of Mark determines it in the 5th of Matthew in his Sermon upon the Mount there being indeed nothing wherein That people needed more Reformation than in That particular His words are verse the 31 It hath been said whosoever shall put away his Wife let him give her a Writing of Divorcement And verse the 32. But I say unto you that whosoever shall put away his Wife saving for the cause of Fornication causeth her to commit Adultery and whosoever shall marry her that is Divorced committeth Adultery By this it is plain that whatsoever toleration they had from Moses about putting away their Wives and whatsoever farther liberty they took to themselves in That matter it is totally repealed and condemned and no cause of divorce and putting away allowed to be good but in case of Fornication and Unchastity There ariseth this difficulty from the consideration of our Saviour's words whether he he did thereby intend to institute a new Law in the Case or whether he only spake Interpretatively with reference to the Law of God Then in being Those who are inclined to think he did institute a New Law urge it from hence That our Saviour speaks of Fornication and Unchastity as a ground and the only ground of Divorce which by the Law had another punishment appointed for it and such a one as made Divorce impossible and impracticable for they were to be put to death that were so found guilty and of That Law our Saviour takes no notice say they the punishment the Law appointed to be inflicted for Fornication and Adultery and the direction our Saviour gives about it cannot consist together the one directs Divorce the other appoints death I suppose our Saviour in what he Here determines about this matter as in many other of his determinations about other things speaks so as that he gives a full satisfaction to men according to the present state of things then in being and also establisheth a Divine Law upon such grounds that shall last for ever in the Church For the first That he spake with reference to the Law Then in being and to settle the Consciences of men who desired to perform their duty as things Then stood I gather from hence First because he spake to such who were then all of them under an obligation to the whole Mosaical Law for so were the Jews and Christ's own Disciples to whom he Preached Secondly He plainly seems all along that Chapter to comment upon the Law of Moses and Evangelize it and to give the true and genuine meaning of it against the corrupt and perverse interpretations of the Scribes and Pharisees And when he sayes But I say unto you he does not so much oppose himself and what he said Then to Moses and what Moses had said Before as to what the Scribes and Pharisees had falsly said in Moses name and so rather vindicates the true sense and
her and so in cases of such turpitude two are no longer one but three or four or more in that marriage-sense of oneness and so the oneness of two in marriage which is the essence of it being dissolved the marriage it self must needs be so likewise nor can it in reason be supposed to continue where the ends of God and Nature in that relation are frustrated and made void And this could not be limited to the Jews nor have a peculiar and single respect to Them being founded upon principles that are common and universal moral and perpetual and wherein the interests of all men concenter so that if it were lawful Then for a Jew or any man to put away his Wife for Fornication upon those grounds upon which our Saviour declares it to be lawful it seems reasonable to think it must continue to be so for every man to the worlds end because those grounds are in their own nature general and perpetual and will Justifie the doing of the thing for ever Fourthly There seems to be no ground of belief that our Saviour should indulge the Jews in this point and frame this exception only for Them and not intend it to others but rather the contrary That he should have particularly restrained Them in this matter more than others because of their enormous practices this way above any other Nation in the World Besides that the general Rule without the exception has a fairer interpretation towards Them than any and our Saviour might well say pointing only to Them Whoever puts away his Wife that is as your manner of putting them away now is and marries another commits Adultery There seems no reason at all to appropriate that exception to Them especially when 't is made upon grounds common to all Fifthly To confine that Rule our Saviour Then gave about Marriage and Divorce as he conjoyned them to the Jews only at That time and to extend it in that conjunction no farther is to confine it to that interpretation wherein 't is most hard and difficult to be understood and deny the effects of it where the interpretation lyes most plain and easie To our selves under the Gospel the direction of our Saviours Law is plain and evident and without any difficulty may be put in execution but in its relation to the Jews and the state of things Then it seems somewhat obscure and without an admittance of a non-execution in some cases of the Law of God Then in force for punishing Fornication and Adultery with death very hard to be understood and therefore 't is no way reasonable to relate the Law solely to Them and deny the benefit of it to our selves The practice in the Christian Church seems to have been regulated by our Saviours direction and Divorces admitted in case of Fornication The Emperour Theodosius who as one sayes of him was Christianus pius Episcoporum quotidiano usus concilio made Laws for a man to put away his Wife in case of Fornication and Adultery and extended it to the very suspicion of it Sufficere Judicavit si mulier viro ignorante vel nolente extraneorum virorum convivia appeteret si ipso invito sine Justa probabili causa foris pernoctaret nisi apud suos Parentes vel si Circensibus theatralibus vel Ludis Arenarum spectaculis ipso prohibente gauderet The Emperour Justinian made many additions to these Laws which although for the manner of them we must suppose accommodated much to the Customes of those times yet were all built upon our Saviours direction in that case St. Jerome is positive That Vbicunque est Fornicatio Fornicationis suspicio liberè uxor dimittitur which yet we must not extend to every Jealous suspicion but suppose spoken Ne ad legum subtilitatem res semper exigatur and must be understood with restriction 'T is no way fit a mans own Jealous apprehension should be always the rule in the case and yet in matters of That nature it may so fall out that a man may be certain of that of which he can make no evident proof St. Austine plainly takes our Saviours direction Then to be the rule Now in this matter in his 89th Epistle says he Dominus praecepit ne quisquam uxorem dimiâ—tat excepta causâ Fornicationis Divorce à mensâ toro seems to be a fiction in the Canon-law and to have no ground neither in any Law of God nor in reason Not in any Law of God for wheresoever divorce was allowed by any Divine Law it was a total Divorce and the persons were allowed to marry again It was so amongst the Jews whoever was Then Divorced might go to a second marriage It is so in what our Saviour sayes he evidently implyes it putting away and remarrying are conjoyned whoever sayes he puts away his wife and Marries another except for the cause of Fornication c. where the implication is evident that in that case of Fornication he may both put away his wife and also lawfully Marry another the first marriage being dissolved the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 constantly used by our Saviour in the New Testament for Divorce and putting away implyes a nulling of the marriage and discharge of the obligation and signifies to absolve loose release discharge so that if what our Saviour hath said about Divorce in case of Fornication be a rule to the Church Now 't is plain the Divorce allowed by him in that case admits of a second marriage If it be not a rule to the Church Now then there is not the least positive allowance under the Gospel for any Divorce at all and if so all Divorces a Mensâ Toro are without any Divine warrant Not in reason for whatsoever can be sufficient to Justifie a Divorce from all the ends of Marriage must needs be sufficient to Justifie a Divorce from the obligation of Marriage the one being but in order to the other It seems no way reasonable to bring any man into that condition that the obligation of marriage should remain and the helps and advantages of it be taken away 'T is to divide what God hath joyned for he never appointed the one to go without the other It seems very undecent to say two shall continue one flesh and yet be excluded from all converse each with the other If the essential bond of marriage be broken as in fornication That gives a rational ground for a Total divorce If it be not while the bond continues unbroken the duty ought to be performed there appears no ground to suspend the one and continue the other The practice of marrying again after Divorce hath been frequent The Greek Church practise it generally Grotius says some Christians have thought better to forbear it Quam sententiam says he ex bonitate peculiari magis ortam quam ex communi receptaque lege tum ex aliis tum ex Tertulliano apparet qui non uno loco ostendit solitos
Nor did I ever yet meet with any that thought the Hebrew word used in the 24 of Deut. as the ground of Moses permission of Divorce could be rendred by the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is that used by our Saviour But to put it out of all farther question that the licence Moses gave to Divorce cannot be restrained to Adultery and Fornication there is this undeniable evidence If that were so we must make our Saviour palpably to contradict himself and at the same time to establish what himself repeals and to do the same thing which he finds fault with as done by Moses being not that which was from the beginning but that which was done only temporarily and occasionally for the hardness of That peoples hearts our Saviour's speech would Then run Thus Moses for the hardness of your hearts suffered you to put away your Wives for Fornication and Adultery which was not so from the beginning and so ought not to continue But I say unto you that whosoever puts away his Wife except for Fornication and Adultery and marries another commits Adultery in so doing There needs no more than our Saviours own-words to assure us that the liberty Moses gave for Divorce and That Christ gave were upon different grounds The plain meaning of our Saviour seems to be this Moses heretofore upon a particular reason because of the hardness of your hearts suffered you to put away your Wives upon grounds that were not intended to be a lawful cause of Divorce from the beginning I 'le have that to be so no more but I 'le have it to be as it was from the beginning and from the beginning there was no good cause o◠Divorce but Fornication and This cause was a good cause from the beginning and the first institution of marriage and appears by our Saviours interpretation of the first Institution of Marriage to be so and to be implyed in the general institution at the first and reserved as much as the service of the Temple and liberty to works of mercy and necessity are declared by him to be reserved and implyed in the first positive institution of the Sabbath though not expressed so that if we look to the liberty given by Moses our Saviours Law about Divorce is a new Law for he repealed That if we look to the Law of Creation and first institution of marriage 't is the same that was from the beginning only the Mosaical indulgence had interposed and our Saviour by repealing That settles the matter upon the old and lasting foundation wherein Jews and Gentiles and all men to the worlds end are to acquiesce and declares that exception of Fornication though not expressed to be virtually contained and implyed in the institution of marriage from the beginning Animadversion IT is a strong argument to me that whereas God saith the nations round about the Jews would admire their wise Laws yet none of the Heathen had such a loose Law as to divorce at every exception the husband took Answer It is a consideration of moment I grant yet our Saviour giving the reason of it and thereby seeming to admit the thing determines us It was rather a Toleration than a Law a permission of impunity rather than an institution and we have good reason to think as things then stood the best and most prudent expedient That people were capable of Calvin speaks wisely of it says he we give general liberty without restraint for men to go to Law yet that justifies no mans going to Law beyond the bounds of Charity St. Chrysostome in his excellent Homily upon the 5th of Matthew speaks more fully to th ground of it Si enim retineri etiam exosam praecipisset uxorem facilè profectò illam qui oderat occidisset Talis quippè erat natio Judaeorum qui enim ne filiis quidem propriis parcere Prophetas solebant frequentèr occidere ut aquam ita effundentes humanum cruorem multò illi minus odiosis conjugibus pepercissent Moses inquit propter duritam vestram haec scripsit ne clam mactaretis sed ejiceretis The Christian Roman Emperours gave much the same liberty to the Husband Grotius sayes Christiani Imperatores extra Adulterium aliquot scelera enumerant quibus probatis maritus sine ullo damno uxorem repudiet quod est amplius ea si probare nequeat non simplicitèr repudium vetant sed in arbitrio mariti relinquunt malitnè uxorem retinere an dotem reddere amittere quod propter nuptias donavit Animadversion MAtth. 19 9. is not every way the same determination with his doctrine Matth. 5. for chap. 19. he speaks in his case that marries another but Matth. 5. in his case who marries her that is put away Answer I conceive both places are alike to this purpose to make remarriage upon Divorce lawful for in the 5th of Matthew remarriage is plainly intended by our Saviour for he saith whosoever puts away his Wife except for Fornication which is to be understood such putting away as they Then used which was to remarry after it for he sayes expresly whoever puts away his Wife and marries another and he sayes if the woman marry again except put away for the cause of Fornication she commits Adultery the exception plainly implyes her remarriage is no Adultery if put away for Fornication and if the woman so put away may lawfully marry again much more the man that did put her away if it be lawful for either to marry it must needs be for both for it must be upon supposition of the Marriage-bond dissolved Animadversion IN Matthew there 's mention of putting away not a word to allow the innocent person to marry again but here is a strong argument indeed that the Law of Moses never allowed their petulant putting away for every cause For Christ as you well observe rendred the right sense of the old Law gave no new Answer No new Law if we respect what Law was from the beginning which the Jews were obliged by but new in this case if we respect the permission of Moses for he positively repeals That The Law the Jews were to submit to was the Law of Creation and first institution which Moses revealed to them to That our Saviour reduceth them The permission about Divorce was accidental and temporary that our Saviour positively repeals and 't is very plain that in Both cases That of Moses for Divorce and That of Christ for Divorce remarriage is admitted in Moses in terminis expressed and by our Saviour plainly and undeniably implyed Animadversion THat Christ intended the obligation of the marriage should cease Presumitur non probatur Answer Christ must needs intend the obligation of the marriage should cease where he gives liberty to a second marriage as he plainly does in case of Fornication both in the 5th and the 19th of Matthew Christ reasons about marriage from the Law of creation and the first institution of