ends cannot be attained this I assent to but it will not reach this case Ability to perform is implyed in all contracts providential disability no way cancels the matrimonial obligation because 't is entred into with a supposition of them But although God in his just Judgement and as a punishment upon both may bring married persons into such a condition yet 't is not a ground for men to make a rule to go by especially for the offence of one 't is There matter of necessity and not of choice There the ends of marriage cannot be attained Here they may only we obstruct them God does that many times providentially and Judicially which we can neither do reasonably nor regularly 't is mens duty to submit to God when he takes away those helps marriage affords but that is no ground for us to take them away while he continues them A man obliged by an oath of Allegiance to his Prince may providentially be brought into such a condition he cannot perform it but That will never warrant us to bring any man into such a condition where the obligation to a duty is necessary and the suspension of it is voluntary It may so fall out a Prince cannot protect his subjects nor his subjects obey him yet the obligations upon both remain But this will never justifie us upon any account to bring things into such a posture But suppose the woman refuse due benevolence where there is no disability I say she lives by so doing in a notorious sin and 't is not fit that what is a sin in either party voluntarily to do Both should be enjoyned to do which they are by divorce à mensa toro The woman in that kind is lyable to punishment for not performing matrimonial duties and in case all means used to reduce her to her duty prove ineffectual 't is worthy consideration whether she may not at last come under the equity of St. Pauls didirection about desertion which is nothing as I take it relating to divorce or putting away in that sense our Saviour speaks of it but a help that the Law of nature which is ever implyed in all divine institutions affords to an innocent wronged person unjustly forsaken and actually or perhaps virtually put away the Apostle says A brother or a sister 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is not inslaved in such a case The truth of this whole matter is our Saviour has in the Gospel established a Law for Divorce and Remarriage in the single case of Fornication instead of That liberty given by Moses under the Law it must be proved that he intended That part of the Gospel as a rule to the Jews only which he never intended any other part of it to be nor does any where say he intended This to be or else the matter is determined Amongst the Jews never any Divorce heard of without liberty to remarry and it was only intended for that purpose Calvin upon that passage He that marries her that is put away commits Adultery speaks fully says he This sentence hath been most corruptly expounded by many Interpreters for they thought generally and confusedly that is was commanded to live sole after Divorcement so if the Husband should put away the Adulteress of necessity They both should live unmarried as if This were the liberty of Divorcement only to lye away from the Wise as if also Christ did not evidently in this case permit That to be done which the Jews were wont generally to usurp unto themselves according to their own pleasure Therefore their errour was too gross for when Christ condemneth him for Adultery that marries her that is put away 't is certain that this is to be understood of unlawful and frivolous Divorcements By the Roman Laws all Divorces admitted of a second marriage In the Christian Church in the beginning it was so Nor indeed was Divorce ever thought of any where but in order to a second marriage till this contrivement of a Divorce à mensa toro came in the effect of which in the Roman Church where it hath been chiefly practised has been such as does no way credit it Cajetan one of their own is so ingenuous that upon the 19th of Matthew he saith Intelligo igitur ex hac Domini Jesu Christi lâ—ge licitum esse Christiano dimittere uxorem ob fornicationem carnalem ipsius uxoris posse aliam ducere And a little after adds Non solum miror sed stupeo quod Christo clarè excipiente causam fornicationis torrens Doctorum non admittat illam mariti libertatem Wherever that kind of Divorce has been practised the consequence hath most commonly been that the innocent party hath by temptation fallen into sin the offending party into farther transgression for 't is not a thing probable or likely that such who would not live chastely in a marryed condition should do so in a single condition and at last greater inconveniences and animosisities have arisen from such a separation and the parties very rarely if ever again united It inslaves mankind into a very sad dilemma either to lye in a polluted bed and yield to every impudent Adulteress for so they usually grow at last or else to udnergo all those temptations men are subject to without a Wife in a single and unmarried condition God no where seems to have given the woman such an advantage over the Masculine Sex as to be able to intrap the Man in such a snare Animadversion TO end such as hold to my opinion lay it the more to Conscience foreseeing that the contrary may stir up some wicked Husbands to suborn false witnesses upon Oath to convince innocent Wives that They being divorced it may admit them to marry where they like better Moreover it may fall out not seldom that a wicked Woman will confess her self an Adulteress upon assurance of some ample compensation More might be added Answer 'T is a thing likewise to be feared that if no better remedy be provided for innocent Husbands than a Divorce à mensa toro it may provoke them to rid themselves of their Adulterous Wives by some undue means the rage of a man is great in those cases and truly sometimes unconquerable even in good men sad events have ensued and may ensue in such cases For suborning proof in this case there 's no more danger than in all other mens estates and lives and their highest concerns depend upon proof by witnesses there is no surer or better ground to proceed upon in all humane determinations this matter has the greatest advantage against proof of any being rarely within the reach of it and for one fact of That nature that can be brought to light by due proof many will pass in the dark without proof and so without punishment A womans own confession in this case will not prevail the rule in the Civil Law takes place Revelanti turpitudinem suam fides non datur In the raign of Henry the eighth when the Popes power was excluded an Act passed to inable the King to elect thirty two able persons to reform Ecclesiastical Laws This in the 6 year of Edward the sixth's Raign was put in execution and the Quorum of them by letters Patents reduced to eight they met and took great pains there was present Cranmer Archbishop of Canterbury Goodrich Bishop of Ely and other the chief of the Bishops Peter Martyr and other eminent Divines and the most eminent Canonists Civilians and Common-Lawyers then in the Kingdom they set forth a Book called Reformatio legum Ecclesiasticarum which we may well reckon the judgement of the Church of England at That time about those things being composed by such men impowred by the supream Authority and in That Book the lawfulness of Divorce in case of fornication and remarriage upon it is fully asserted and justified I shall only add that amongst learned men I find great disagreement in resolving this Question whether the same right of Divorce belong to the Woman that does to the man some say the superiority of the Sex makes this a peculiar prerogative to the man who is the head of the Woman ` T is certain in the Mosaical Law no such thing as a Womans putting away her Husband was ever allowed sometimes in fact it was illegally and irregularly practised yet very rarely we find in all the Jewish Writers but one instance and that is in Josephus The Roman Laws allowed it Those who espouse the Womans cause in this point urge that passage of our Saviour in the 10th of Mark where he saith And if a woman put away her husband and marry another she commits Adultery and so seems to make the right of putting away equal Calvin upon this place saith that although the Husband be superior in other respects yet in the marriage-bed the man and the woman are equal therefore saith he when as the Adulterer shall fall away from the knot of matrimony the Wife is set at liberty they also urge that of St. Paul who saith in case of desertion a Brother or a Sister is not bound and so seems to put the matter between Man and Wife upon even terms in all conjugal respects The Christian Church affords us but two instances that look this way The first of one Thecla who refused to marry one Thamyris in Iconium after she was contracted to him This story Mr. Selden relates at large from the report of Basil of Selencia but seems not much to credit it himself however it was but a refusing Marriage after contraction Mr. Selden calls her only Sponsa and saith Nuptias noluit sponsalibus renunciavit and it was to one that most bitterly detested Christianity The other instance is that in the beginning of Justine Martyrs first Apology where a Christian woman made use of the Roman Laws to put away her Husband and he commends her for it but that was evidently upon St. Pauls permission in case of desertion for her Husband was a notoriously wicked person and departed from her In this matter I shall make much a better choice to submit to your Lordships learned Judgement than to declare my own FINIS
their infirmities But you would have God lay more burden upon them because of their perverse hearts which is not Gods method but to whom much is given of him much will be required 20. Fifth Reason soon satisfied whoever said that Christs precept about Divorce was injoyned Then to the Jews and only at That times It was in force from the beginning without indulgence but in force with that indulgence from Deut. 24. aâ—â— no time so opportune as when Christ was on the earth and spake with his own mouth to his Disciples to let them know they were not priviledged like the Jews if their Wife were an Adulteress but to take up their cross and bear it 21. Divorce admitted in the Christian Church for Fornication but superinduction of another Wife is another thing There were great mistakes in the Imperial Laws Did not Valentinian make a Law for marrying within degrees prohibited Others for Bigamy I have not leasure to search the Books I lay St. Austine against St. Jerome who did not write transcursorily but two studied Books upon the Argument 22. Why should not the orders of the Canon-Law be as rational as the Laws of Theodosius and Justinian Separatio à toro mensa is for peace sake till opportunity of attoning Must all directions to keep them aloof that are imbittered one against the other and to prove them for a time how they will piece again be grounded upon Scripture Shall humane Prudence have no hand in such things These are no fictions of the Canon Law for they falsifie no Text but make tryal of such ways as may conduce to the good of both parties What if à toro mensa have no divine warrant is there any divine warrant against it They that look for divine warrant express in all frames of Government in all circumstances of Gods worship have been told sufficiently how much they mistake the purpose and use of Holy Scripture 23. You say 'T is not reasonable that the obligation of marriage should remain and the helps and advantages of it be taken away why what if a maâ— or a woman be taken Captive Incur an irremediable diseass or the Wife though chaste will not render due benevolence or her Joynture she brought be consumed by fire Here are helps and advantages substracted yet no wedlock broken 24. By Divorce à toro mensa they are not shut from all converse with one another they may return to mutual embraces again though the bond of marriage be not broken the use and comfort may be suspended 25. Far more Bishops by thousands have disliked it than that have allowed it I reverence the Councils yet they were but Provincial Had I leisure to peruse them I should know to interpret them 26. Grotius lived in the Netherlands and wrote after their practice and doctrine It hath been the practice of the Church of England but once in Parliament Edw. 6. and once in this late Session of Parliament I take no pick at any man that is of a contrary judgement to me But the first instance of Parre Marquess of Northampton who had two Children in secret before the Act of Parliament passed on his side makes his case far worse than the Lord Rosse's but the Marquess and his posterity sunk quite away and let survivors behold the end of this last Instance For an Appendix I will ingeniously add the unreasonableness of the Church of Rome who generally deny him that puts away his Wife for Adultery to marry again yet they consent to the sentence of Pope Gregory the first who resolves this upon a question moved Questio est quidam parentes mulieres presertim proprios filios susceperunt in lavacro An illiviri mulieres ad suum proprium redire possint usum Imo separent se mulieres vero cum separata fuerint pro hac illicita re à propriis viris totam precipimus recipere dotem post expletum annum recipiant alium virum similiter viri uxorem which is easily thus refuted by their own doctrine Si proprios filios in casu necessitatis baptizare non solvit matrimonium quanto minus eosdem è Baptismo suscipere 27. To end such as hold to my opinion lay it the more to Conscience foreseeing that the contrary may stir up some wicked Husbands to suborn false witnesses upon Oath to convince innocent Wives that They being divorced it may admit them to marry where they like better Moreover it may fall out not seldom that a wicked Woman will confess her self an Adulteress upon assurance of some ample compensation More might be added The Answer to the Animadversions Animadversion 1. UNchastity before marriage in a Virgin not in a Widow Answer The direction in the 22. of Deut. for conviction of unchastity before marriage relates peculiarly to a Virgin and cannot be applyed to a Widow yet should a Widow by other evident proofs be convicted of unchastity after the death of a First Husband before marriage to a second the equity and reason of the Law seems to reach her 'T is a firm Maxim in the Civil Law ut ubi eadem est ratio jus idem valet I find no exception any where made in that case nor any particular direction given about a Widows previous unchastity to a second marriage to punish it any other way Animadversion UNchastity to be punished wth death if proved by two witnesses if but one Divorce if only strong suspicion the water of Jealousie Answer The first is evident that unchastity when punished with death was to be proved by two witnesses not by reason of any particular direction about the proof in That case but because God established That as a general rule for all Judicial proceedings that by the testimony of two or three witnesses every sentence should be established Deut. 19. 15. One witness shall not rise up against any man for any iniquity at the mouth of two witnesses or three shall the matter be established The second that if unchastity were proved but by one witness it was Then matter of Divorce I crave leave to dissent from Unchastity if proved could never be ground for Divorce for death was to ensue so that if one witness in case of unchastity were sufficient proof it produced death if it were not it amounted to no more than suspicion Nor do I find any direction for any proof at all to be made as Necessary in case of Divorce nor in any case where proof was Judicially required was one witness sufficient Neither by the first allowance of Divorce Deut. 24. Nor in the subsequent practice of it amongst the Jews was there any proof required in case of Divorce nor any Judgement to be passed by the Magistrate about it farther than that there should be libellum repudii given to the Woman It seems to me that the judgement in case of Divorce rested in every mans own breast though every man was in his own private conscience obliged
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
intention of the Law under his own name And though his determinations in some things exceed the Law yet in all things they contain the true sence and end of the Law Thirdly When the Scribes and Pharisees asked our Saviour in the 19th of Matthew about this matter what lawfully might be done in it our Saviour answers them with the very same determination and therefore 't is plain he spake with reference to what was at that time to be accounted Legal according to the Laws and institutions of God Then in force and there is nothing in what our Saviour sayes that does any way contradict the Law of God in being but gives a satisfaction to mens Consciences how they were to behave themselves under it We must note this that our Saviour is singly upon the point of Divorce and putting away he meddles not at all with the Law about Adultery but leaves it to its due execution His saying That crime was the only lawful cause of Divorce did not prejudge it from any greater punishment due to it he only determines about the matter of Putting away and Divorce and he determines thus in opposition to the Jewish practice and the first permission of Moses to them that there is no cause at all upon which a Wife may be put away but where the marriage-bond is dissolved which is only in the case of Fornication and Adultery where the Woman was Then legally dead and ought to be put to death if prosecuted and the fact proved and that all putting away the Wife upon any other ground is unalawful and sinful Now this determination of our Saviour about Divorce might be a satisfaction to men in Conscience and a ground for them to put away their Wives for Fornication and Adultery though the Law of God against Fornication and Adultery to punish it with death was unrepealed and they under the obligation of it and that in three Cases First The Law did not oblige the Husband to go to the Judge and prosecute his Wife for Adultery Nor does our Saviour impose farther in that case then the Law did upon him and therefore such who were Lenes mariti as Joseph was and had no mind to prosecute their Wives to extremity were by this delivered from a necessity either to live with an Adulteress or else to prosecute her to death and are set free in Conscience to give her Libellum repudii and part from her Secondly Supposing a man could not have Justice done upon an Adulterous Wife when he did his best in prosecution of her and this was like enough to be the condition of many a man in that corrupt state of things amongst the Jews at that time and was actually so the execution of That Law having been for a long time forborn and well may we â—hink it should be so for all Capital punishment was at â—hat time taken from the Jews and not in their power so the Sanhedrim confess John 18. 31. 'T is not lawful for us to put any man â—o death in that case our Saviour gives free liberty for â—he Husband to divorce himâ—elf from her and make use of â—hat freedom the Jews took â—f putting away Thirdly Supposing a man were inwardly satisfied oâ— his Wives unchastity and certainly knew within himself she were guilty of Adultery yet had not such proofâ— as would make it out in a Judicial way to gain Execution of the Law againsâ— her in putting her to death in such a case which we may easily suppose might often fall out our Saviour sets the mans Conscience freâ— to put her away and Divorce himself from her In all these cases our Saviourâ— allowing Divorce in case oâ— unchastity was of great uâ—â— Then to settle the Consciences of men who were obliged to the Law and no infringement at all of the Law it self He gives a rule to limit that exorbitant liberty men took to themselves of putting their Wives away and tells them in what case only it may be done which was in case of Fornication and that might very well happen to be the Case though the Law for punishing it with death were still in force and so our Saviour speaks of it as 〈◊〉 〈◊〉 Then accidentally 〈◊〉 〈◊〉 Divorce and putting 〈◊〉 but no way layes any Aâ—â—â—â— upon the punishment the Law inflicted upon it The truth is our Saviour promulged such a general Law in the case as gave a sufficient determination as things Then stood and might satisfie mens Consciences what Then to do in the point of Divorce and was to be also a Rule to the Church about that matter to all future Ages That our Saviour intended it so is very evident from those general grounds upon which it is established and all the circumstances that attend it Nor is there one word in that whole Chapter but is of that nature 't is Evangelical as well as Legal and looks forward to the Gospel-Church to come as well as it contains a direction to the present Church of the Jews Whereever throughout that Chapter our Saviour speaks of any Law in force amongst the Jews even of the Judicial Laws he induceth by his determinations about them that Equity that was moral and perpetual in them and to last for ever in the Church It seems also necessary there should be some direction left by our Saviour in this point or else the Church under the Goâ—pel would have been wholly without any Rule about it and there could never have been upon any terms whatever any such thing as Divorce practised in the Gospel-world for what Moses permitted about it was accidental and temporary and peculiar to the Jews and our Saviour shews us the rise of it and the reason of it and forbids all farther practice of it The Law against Adultery and uncleanness determined those crimes another way and besides That Law of punishing Adultery with death was purely Judicial as much as punishing a diâ—obedient child with death was so and wholly relating to the Jewish Oeconomy 'T is true the offences in these cases were moral and natural evills and do still so continue but That manner of punishing them Then was Judicial and temporary We see at This day 't is not a general established Law no not in the most Christian Nations to punish Adultery with death and therefore our Saviour who was guided by infinite wisdom in all he did spake so as might give satisfaction to every Conscience under the Law at That time upon what terms only to make use of the liberty of Divorce and putting away Then so frequently and commonly practised and also gave a perpetual Rule to the Church that the bond of marriage should be preserved Sacred and upon no account but that of Fornication dissolved and in That case whatever the Laws of particular States might be about it yet the obligation of marriage ceased and the Consciences of men were for ever set free This Doctrine of our Saviour about Divorce established in the 5th
by rules in his actings therein and sinned if he transgressed them For as one saith God would by that expression in Deut. quae probrum aut ut 72 Interpr verterunt 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 significat admonere Hebraeos ne temerè uxores dimitterent and sayes the same Author Notum est quosvis Judices quorum summae liberrimae potestati res aliqua permittitur insontes non esse si abaequi bonique regula discedant jus ergo fuit ut quavis de causa uxorem maritus possit expellere sed ea notione qua Praetor jus reddere dicitur etiam cum injustè discernit ut Paulus Jurisconsultus loquitur qui alibi dixit non omne quod licet honestum esse licere enim in Communi usu aliquid dicitur quod extra poenam est quominus fiat a nemine impediri potest The words of the Text cast it that way And it come to pass that she find no favour in his eyes of which himself could only be the proper Judge In the 19th of Matthew where the Pharisees urged upon our Saviour that Moses required no more in the matter of Divorce but to give a writing of Divorcement our Saviour does not deny it but seems to admit it only tells them Moses did it for the hardness of their hearts but from the beginning it was not so The antient form of their Divorces imports thus much Mea sponte nullius coactu te uxorem hactenus meam dimittere à me deserere ac repudiari decrevi Jamque adeo te dimitto desero ac repudio atque à me ejicio ut tuae sis potestatis tuoque arbitratu ac lubitu quò licet discedas neque id quisquam â—llo tempore prohibessit atque itae dimissa esto ut cuivis viro nubere tibi liceat Crotius Seems upon good grounds to be positive in this case his words are Errare autem eos qui putant Judaeis non licuisse uxorem dimittere nisi causa apud Judicem probata satis ex hoc loco apparet Dictum enim esse ait Christus qui uxorem dimissam vult libellum det repudii Dubitationem omnem nobis Josephus eximit qui de se agens ita ait 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Verum tamen est hunc actum non minus quam haereditatis Cessionem atque alios solenniores solitos coram Judicibus peragi quod nos Digesta Talmudica docent sed erat hoc jurisdictionis voluntariae non contentiosae quomodo manumissio apud Praetorem Jure Romano Cognitionem igitur suam judex non interponebat nisi de dote aut donatione propter nuptias controversia inciderat planè ut apud Romanos And he adds after Caeterum ut graviora mala evitarentur veritatem gravitatem causae noluit ad alienum arbitrium referri sed ipsius mariti animo id aestimandum permisit Quod mirum non est cum veterum Gallorum aliarumque Gentium leges jus vitae necis in Vxores Maritis concesserint For the third If strong suspicion the water of Jealousie I assent to it he that doubted his Wives chastity and in case he could be assured of her chastity resolved not to part with her and if she were found unchaste desired the execution of the Law upon her obtained his end by the Water of Jealousie But I much question whether That being of an extraordinary nature were enjoyed by the Jews till our Saviours time I rather suppose they never had the benefit of it after the Captivity but that the use of it ceased as it did of the Vrim and Thummim That Church being to determine God removed the Pillars of it by degrees I believe in our Saviours time in fact things stood Thus The Law against Adultery was not executed nor indeed was it in their power to have it executed for the Romans had reserved matters of life to their own Judicatories though sometimes the people would violently stone some persons as they did Stephen and upon that account amongst others they thought to insnare our Saviour in the 8th of John when they brought to him the woman taken in Adultery The water of Jealousie they had not the use of and so nothing was done in these cases but only they made use of the liberty Moses allowed for Divorces Animadversion Found some uncleanness some is a word superfluous 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the 72. Interpret which is summam foeditatem carnis Answer There is great disagreement in understanding the Hebrew words translated some uncleanness in her I shall make evident it cannot be restrained to unchastity for which the Law had otherwise provided if either proved or suspected the Jews I confess differed much about it I find in Mr. Selden there were three Schools amongst them that maintained three several opinions about it The School of Hillel the School of Sammai and the School of Aquiba That of Hillel maintained it lawful for a man to put his Wife away for any cause but not singly upon his own pleasure That of Sammai for somewhat of Turpitude only and That of Aquiba that a man might put away his Wife upon his own pleasure without any ground at all That which was the most general received opinion amongst the Jews he says was that for light causes as dislike of Beauty age and many other such things Wives might be put away and he adds idque ex sacrae legis mente according to the sense of the Law and 't is most certain they did so interpret it for the most part The School of Sammai as Grotius observes had the fewest disciples and yet under the notion of turpitude they extended Divorce so far that they thought a Womans going with open breasts a sufficient ground for it Philo sayes a man may Divorce his Wife for any occasion de spec lâ—g ad praec 7. Josephus sayes for any dislike of manners and he practised accordingly for he saith of himself that he put away his Wife after he had had three Children by her only because he disliked her manners Chrysostome in his Homilies upon Matthew speaking of what the Pharisees said to our Saviour about Divorce sayes he Erat hoc in veteri lege mandatum ut qui prepriam quacunque de causa odisset uxorem non eam prohiberetur ejicere inque illius locum alteram ducere Erasmus hath with very great learning in his Treatise about Divorce proved that by Uncleanness in the 24th of Deut. Unchastity cannot be meant he is so confident and positive that he stakes his credit upon it Ainsworth and our best late Commentators render it exactly from the Hebrew matter of nakedness or by transposing the words any thing of nakedness which saith Ainsworth is not meant of Adultery but of some evil thing in her conditions or actions that displeased her Husband and he adds that the phrase is so taken in the same sense for any thing unseemly in the 23 of Deut. v. 14
expect That reformation than from Christs own mouth He allows not the Jews in any one Title of their corrupt practice but exactly reduceth them to the rule and in this case he plainly tells them the dispensation they had from Moses was not the rule but the law of Creation and Gods first institution was the rule and that admits of no exception but this of Fornication 't is not reasonable to think Christ should indulge them for the hardness of their hearts in any thing because he came to reform every thing but especially not in this matter because he plainly repeals what Moses had done in it before upon that ground Animadversion WHere Fornication is committed the Union is dissolved Gratis dicitur For may not the innocent person remit the fault of foul lust to the other deductosque jugo cogat alieno may they not live together as Man and Wife which could not be if the union were intrinsâ—cally dissolved As the Prophets do often challenge the Jews for spiritual Fornication of Idolatry yet the Lord took them again to him for his people and it hath a great Evangelical consideration in it that for any trespass while the offended and the offender live together in this world there may be a way left for reconciliation and to take that admonition sin no more lest a worse thing come unto thee but remarrying another while the offender lives excludes all possibility of charitable pardon Answer When we say the vinculum matrimonii is dissolved we speak not of actual dissolution but virtual cause of dissolution In this and in all other obligations arising from contract when the bond is broken 't is a rule Potest innocens cedere Juri suo and if the offended will not take the forfeiture the bond continues Adultery does not ipso facto dissolve the marriage but gives right to the innâ—cent party to dissolve if he please puts the power into his hand which he may ad libitum make use of or not for as Divines say Divortium non est praecepium sed tantum permissum probatum 't is a liberty given in favour to him that is wronged in the matrimonial contract which he is not bound to make use of unless he will God seems to intimate so much in the Prophet Where is the Bill of your mothers divorcement there was cause enough the Covenant was broken on their part yet God pleased to forgive it and not take the forfeiture no Bill of Divorce was actually given if it had they could have returned no more the separation had been irremediable Now that Fornication in this sense is a dissolution of the marriage-bond that 't is a sufficient ground to dissolve it if the innocent party please will appear both from Christ permission about it and from the nature of the thing it self First From Christs permission about it he plainly admitted Fornication to be a good ground of Divorce and permitted remarriage upon that Divorce let his permission be to whom it will our Saviour would never have given liberty to any man to remarry upon Fornication unless That had dissolved the first marriage for it had been to permit a positive sin upon those very grounds upon which our Saviour himself in that very place does establish the bond of marriage If the bond of marriage can be broken in no case our Saviour would never have allowed putting away and remarrying in any case Secondly From the nature of the thing it self it cuts the very knot of the marriage-contract which is that two shall become one flesh and in that case two are not one flesh which they covenant to be and are to be in a chaste and peculiar enjoyment of each other in the marriage-bed for St. Paul sayes He that joyns himself to an Harlot is one flesh with her By the marriage contract they have resigned their bodies over each to other and have not power in that respect over their own bodies In case of Fornication there is the highest breach of That obligation All other things whatever relating to marriage may be enjoyed upon other accounts and in other relations but only the body and the concerns of it and therefore when the Faith about the body is broken Faith is broken about that which is the peculiar property of marriage and that which does formally distinguish it from all other relations A charitable pardoning spirit is very suitable to the Gospel and becoming a Christian but I think a man ought not to be imposed upon in this case where a man is wronged and Christ hath provided a way to right him justice in That case must not be denyed him if he require it A man may if he please forgive an unclean wife and continue to live with her But I incline to Calvins opinion that he will do much better to put her away and cleanse his house nay his bed from defilement and wickedness Animadversion YOu say It is not reasonable that the obligation of marriage should remain and the helps and advantages be taken away why what if the man or woman be taken Captive Incur an irremediable diseass or the Wife though chaste will not render due benevolence or her Joynture she brought be consumed by fire Here are helps and advantages substracted yet no wedlock broken Answer I conceive it not reasonable any thing should be thought of validity to take away the ends of marriage that is not sufficient to dissolve the obligation because they are relatives intrinsecally conjoyned each to other the ends and advantages of marriage ought never to be suspended where there is not sufficient ground to dissolve the bond of marriage because the bond being entred into for the sake of those advantages that belong to it by the Law of God and by the Law of Nature those advantages ought never to be denyed where the bond is continued our Saviour saith Whom God hath joyned let no man put asunder that is not put asunder as God hath joyned them and he has joyned them so that the duties to be performed and the obligation should go together whoever divides in That kind I think falls under the Text if we ground divorce upon our Saviours exception That is plainly for a total Divorce in that case of Fornication and remarriage after He divides as God has joyned from duty and obligation together A divorce à mensa toro seems unreasonable because unequal and 't is unequal because the innocent party is as much a sufferer by That as â—he nocent and instead of beâ—ng relieved is farther punished and all the help a man has by this partial divorce that is abused and betrayed by an unchaste wife is to be put â—nto a kind of Matrimonial Purgatory and be rendred hereby uncapable to enjoy â—ither the advantages of a marryed man or the freedom of a single man When by providential disâ—bilities in either party the duties of marriage cannot be performed yet the marriage-bond continues unbroken though the