The case of divorce and re-marriage thereupon discussed by a reverend prelate of the Church of England and a private of the Church of England and a private gentleman ; occasioned by the late act of Parliament for the divorce of the Lord Rosse. Wolseley, Charles, Sir, 1630?-1714. 1673 Approx. 87 KB of XML-encoded text transcribed from 82 1-bit group-IV TIFF page images. Text Creation Partnership, Ann Arbor, MI ; Oxford (UK) : 2004-11 (EEBO-TCP Phase 1). A66870 Wing W3307 ESTC R9734 12590308 ocm 12590308 63883 This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal . The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. Early English books online. (EEBO-TCP ; phase 1, no. A66870) Transcribed from: (Early English Books Online ; image set 63883) Images scanned from microfilm: (Early English books, 1641-1700 ; 971:7) The case of divorce and re-marriage thereupon discussed by a reverend prelate of the Church of England and a private of the Church of England and a private gentleman ; occasioned by the late act of Parliament for the divorce of the Lord Rosse. Wolseley, Charles, Sir, 1630?-1714. [6], 155 p. Printed for Nevill Simmons ..., London : 1673. Reproduction of original in Huntington Library. Created by converting TCP files to TEI P5 using tcp2tei.xsl, TEI @ Oxford. Re-processed by University of Nebraska-Lincoln and Northwestern, with changes to facilitate morpho-syntactic tagging. Gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. 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Copies of the texts have been issued variously as SGML (TCP schema; ASCII text with mnemonic sdata character entities); displayable XML (TCP schema; characters represented either as UTF-8 Unicode or text strings within braces); or lossless XML (TEI P5, characters represented either as UTF-8 Unicode or TEI g elements). Keying and markup guidelines are available at the Text Creation Partnership web site . eng Divorce -- Great Britain -- Biblical teaching. Remarriage -- Religious aspects -- Early works to 1800. 2003-12 TCP Assigned for keying and markup 2003-12 Aptara Keyed and coded from ProQuest page images 2004-09 Andrew Kuster Sampled and proofread 2004-09 Andrew Kuster Text and markup reviewed and edited 2004-10 pfs Batch review (QC) and XML conversion 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 ●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 ●hink it should be so , for all Capital punishment was at ●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 ●o death , ) in that case our Saviour gives free liberty for ●he Husband to divorce him●elf from her , and make use of ●hat freedom the Jews took ●f putting away . Thirdly , Supposing a man were inwardly satisfied o● his Wives unchastity , and certainly knew within himself , she were guilty of Adultery , yet had not such proof● as would make it out in a Judicial way to gain Execution of the Law agains● 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 fre● to put her away , and Divorce himself from her ; In all these cases our Saviour● allowing Divorce in case o● unchastity was of great u●● 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 A●●●● 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 Go●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 di●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 . of Matthew , is again repeated by him in the 19th . of Matthew in answer to the Pharisees , who there questioned with him about the same matter ; He there tells them , there is no cause lawful for a man to put away his Wife , but only Fornication , and that he admits to be a lawful cause , and the only lawful cause . In the 10th . of Mark our Savious discourse is set down without the exception of Fornication , and runs general , that whoever puts his Wife away , and marries another , commits Adultery , and so in the 16th . of Luke our Saviour sayes , without any of the circumstances in his other discourses of it , in the general , and without the exception of Fornication , That whosoever shall put away his Wife and marry another commits Adultery . It must be noted , that what Mark sets down , in the 10th . of Mark , is the very same story recorded by Matthew chapter the 19th , and both the Evangelists give an account of the same discourse between our Saviour and the Pharisees at one and the same time ; That is so clear , that 't is not to be denyed , and therefore whatever is set down by Matthew must be admitted to belong to the story , and be implyed in it , though omitted and not expressed by Mark , and so whatever is in Mark , that Matthew hath omitted , must be likewise supposed to belong to the story , or else we must imagine the Evangelists not to be both in the right in their relation of the same story , which cannot but be , and therefore Matthew expressing that our Saviour added That exception , ( except in the cause of Fornication ) 't is to be supposed and implyed in the relation Mark makes of the story , though he express it not , neither in what he said to the Disciples nor to the Jews themselves , for the answer is There general to both ; Calvin in his Harmony upon the Evangelists sayes upon this place , that 't is the same story related in both places , and there is no other difference , sayes he , but that one sets down the matter of our Saviours discourse more fully than the other , it being , sayes he , most usual for one Evangelist to omit some passages and circumstances in the same story mentioned by another . Saint Luke in his relation of what our Saviour said about this matter , omits all the circumstances of his discourse , and only mentions in short this general expression of our Saviour , That whosoever should put away his wife and marry another , committed Adultery , which is evidently spoken of those unlawful Divorces daily practised amongst the Jews , and directed against Them. Some conceive that our Saviours determinations in this point were intended with a distinction ; that is , that when he spake in general against putting away without any exception , he spake relatively to his Disciples , and to the Gospel-Church to come ; but when he spake of it with the exception of Fornication annexed to it , he intended That only with relation to the Jews , and so the exception Now concerns not us , but was only meant to Them , and terminated There . Very many things strongly oppose this apprehension ; First , in the 5th . of Matthew , where our Saviour gives the first , and most solemn determination about this point , 't is plain he spake to his Disciples , as well as the multitude of the Jews ; For the Chapter begins , And seeing the multitudes , he went up into a mountain ; and when he was set , his Disciples came unto him ; And he opened his mouth and taught them saying , &c. And he often in that Sermon directed his discourse particularly to his Disciples , for so he did in the 14th . verse , where he tells them , ye are the salt of the World ; A City set on an hill cannot be hid ; which must be spoken to them : Nor was there any reason why our Saviour should Preach one Doctrine in this matter to his Disciples , and another to the Jews ; For the Disciples were equally obliged Then to the Law , and concerned in all that the Jews were , and therefore the same Doctrine must needs be common to them both . Secondly , We find not the least ground from any thing our Saviour said any where to make any distinction in this matter , to believe the Rule was given general to one sort of men , and with an exception to another , but we find the Rule often generally laid down by our Saviour with this general exception annexed to it , and in that case where our Saviour once gives a general rule , with a general exception annexed to it , wheresoever our Saviour after repeats the same Rule , we must suppose the exception , or else we can never be able to make our Saviour to agree with himself . Nothing more usual than to imply remote exceptions under generals to reconcile the Scripture with it self , much more in This case , where our Saviour himself so often joyned the Rule and the exception together . Our Saviour bids us positively in the same Chapter not to swear at all , in general terms , yet every man that is sober will , under This general , imply all the lawful swearing the Scripture any where else enjoins or approves , because we must not make the Scripture militate with it self . Thirdly , There can be no good reason to limit what our Saviour said about Divorce in the 5th . of Matthew and the 19th . of Matthew to the Jews only , but we must needs admit it to be a general Law given in the case to all Ages , because he grounds his determination about it , not upon the Judicial Law , but upon reasons drawn from the general Law of Nature , and the first institution of marriage by God in the Creation of man and woman at the beginning , and such general principles , as had no peculiarity at all to the Jews , ( though they were obliged by them ) but such wherein all mankind were equally concerned : Our Saviour opposed the Pharisees and the Judaical practice , and establishes the Law he introduceth about it , by reducing the matter of Marriage and Divorce to the primitive rule of it , and to the natural and perpetual reason of the things in themselves considered , and therein spake not only to them , but to all mankind , and to the whole world ; He directs them to look to the first rise and original of Marriage , God made at first but one man and one woman , a male and a female , and appointed Them two in those two kinds to be in the relation of Marriage one flesh , so that Nature and Institution , the very Laws of mans first Creation , make the marriage-Union very sacred , and from thence our Saviour derives his direction about it ; And for Divorce , whereas the Jews upon every trivial occasion allowed it , our Saviour denies it to be lawful upon any occasion but one , and that grounded upon the natural and general reason of the thing in it self considered : The very essence of the marriage-Union , both by nature and primitive institution lyes in this , that two are one flesh ; where fornication is committed the Union is dissolved , for as St. Paul tells us , whoever joyns himself to an Harlot , is one flesh with 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 dimi●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 suo tempore ad matrimonium alterum admitti , qui ob Adulterium uxorem dimisissent . Origen tells us , that in his time many Bishops allowed it . 'T is not without the authority of some Councils , who have determined it lawful ; Conciliis , Eliberino , & Aurelianensi , & Arelatensi primo decretum est id licere . Animadversions upon the foregoing Discourse . 1. UNchastity before marriage , in a Virgin , not in a Widow . 2. Vnchastity to be punished with death , if proved by two witnesses , if but one witness Divorce , if only strong suspicion the water of Jealousie . 3. Found some uncleanness ; some is a word superfluous , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the 72. Interpret . which is summam foeditatem carnis . 4. The learned men , Selden and Grotius have their opinion , yet the Rabbies say ; Albeit the liberty of the Law , few or none did use it : No instance of taking that license in Scripture ; Joseph finding the blessed Virgins Womb swelled , presumed he had Just cause to dismiss her : for he knew she could not contend with him in point of Law. 5. It is a strong argument to me , that whereas God says , 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 ; It is Tertullian in his Apology , who sayes , that from Romulus to Sp. Camilius for 500. years Divorces were never heard of in Rome , and he began it upon the barrenness of his Wife . Tully broke good order above all men ; For he marryed a young Gentle-woman , his Pupilla , his Ward , as we call it , that he might pay his debts with her Portion , he never prospered after it . 6. The Jews to this day confess in their writings , that the penalty for Adultery was not inflicted , as it ought to have been , chiefly because it was so hard to prove it by two witnesses , and the confession of the nocent party would not serve ; because no such Trial appears in their Law. 7. 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 . 8. When the marriage-bond is dissolved ; That is presumed not proved . 9. 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 that marries her that is put away . The Woman was not legally dead , if not convinced by two witnesses . 10. The first case of Lenes Mariti , and the third of a prosecutor that could not prove , in the Event come all to one , That with a good conscience he might put the Adulteress away . I concur for putting away , but no farther ; But for the second member , when he prosecuted openly against her and could not prove , Surely she ought to have the common benefit of all Law , to be recta in curiis , and the utmost must be to take the water of Jealousie . 11. If you speak of the 5th . of Matthew ( not of the 19th . ) it is true that it is a compleat exposition of the right understanding of some points in Moses Law , in the morality so to be in force for ever . 12. Punishment by death for Adultery not a general Law. But far more Nations have it , than others with whom it prevails not . 13. That Christ intended the obligation of the marriage should cease ; Presumitur non probatur . 14. Mark sets down the same story recorded by Matthew , that not to be denyed . Yes , 't is evidently to be denyed , Matth. 19. 3. The Pharisees asked him him about divorce , so Mark 10. 2. the Pharisees asked him about that matter ; but read further , verse the 10th ; and in the house the Disciples asked him again of the same matter , and he saith unto them , whosoever puts away his Wife , and doth marry anoother , commits Adultery , Luke 16. 1. The chapter begins , He saith to his Disciples , not to the Pharisees ; Then at the 19th . verse , whosoever puts away his Wife , and marries another , commits Adultery , &c. To his Disciples our Saviour spake in Gospel rules , repealing the license given to the Jews in their Law Judicial to marry again , if Divorced for Adulter ; I dissent from Calvine , who will have the same carriage of the story in in all the three Evangelists . 15. Very right , his Disciples were present at the Sermon , Matth. 5. but there is no mention of a giving allowance to marry after Divorce ; If you argue from Christs silence , that he forbids it not , 't is your own assumption , but no argument . 16. Second Reason . ] What need you more ground than the express words of Christ ; you say , Why should the rule be general to one sort of men , with exception to another ? Nay , the general Doctrine is not to one sort of men , but to all the Children of God and Disciples of Christ , the exception is to the Jews , for the hardness of their hearts . More strict duty required of Christians , for the exuberance of grace given us ; Abundantia spiritus sancti est Elogium regni Christi ; They are Calvines words . A command not to swear at all , is never in any place limitted by exceptions , ( except to swear by the name of the Lord ) but hath an hundred Texts to allow it justly done , so hath not this case which you put . 17. The third Reason makes against you . Christ cites original Scriptures , light of Nature , grounds not to be shaken but by the God of Scripture and Nature , who indulged to the Jews , that albeit those great obligations , they might marry after Divorce for Adultery ; those times of infirmity God winked at , as he did at many superstitions of the Gentiles , but these are the times of reformation under the Gospel . 18. If either commit Fornication , the Vnion 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 intrinsecally 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 marrying another while the offender lives , excludes all possibility of charitable pardon . 19. Fourth Reason . ] Our Saviour did not restrain the Jews more than Moses had restrained , but expounds Scripture , that they had taken license above what God had indulged to them for the hardness of their hearts ; It was the hardness of their hearts , that caused the wisdom of God to give them a latitude , the Lord being gracious to 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. a●● 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 ma● 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 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 ●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 . l●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 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 it in Paradise , and carries it up to the highest grounds of the obligation , and There gives liberty to Divorce and remarriage in case of Fornication , and therefore Fornication must needs be reckoned a dissolution of the marriage , and a dissolution of it considered in its strictest tyes ; our Saviour would never have gone about to prove the sacredness of the marriage-bond by the highest Proofs , and then have given liberty to divorce , where the bond of marriage was not directly broken , for in that case his proofs would only have served against his own indulgence , and therefore he proves the sacredness of the marriage-bond to overthrow the Jewish divorces , and establishes divorce in That only case , where the bond it self was dissolved . Animadversion . MArk sets down the same story recorded by Matthew , that not to be denyed . Yes , 't is evidently to be denyed , Matth. 19. 3. The Pharisees asked him about divorce , so Mark 10. 2. the Pharisees asked him about that matter ; but read further , verse the 10th ; and in the house the Disciples asked again of the same matter , and he saith unto them , whosoever puts away his Wife , and marries another , commits Adultery , Luk , 16. 1. The chapter begins He saith unto his Disciples , not to the Pharisees ; Then at the 19th . verse , whosoever puts away his Wife , and marries another , commits Adultery ; To his Disciples our Saviour spake in Gospel rules , repealing the license given to the Jews in their Law Judicial to marry again , if Divorced for Adultery ; I dissent from Calvine , who will have the same carriage of the story to be in all the three Evangelists . Answer . I humbly conceive that the two Evangelists relate the same story , both from the matter of it , and all the circumstances that attend it , 't is said in the 19th . of Matthew , in the beginning of the Chapter ▪ our Saviour came into Judaea beyond Jordan , and in the beginning of Mark 10. 't is said he came into the same place , and in both the Evangelists 't is said the multitude came unto him , and the discourse related between him and the Pharisees appears evidently in both Evangelists to have been the same , at the same time , and in the same place , and before the same company , only somewhat varied in the relation , which is usual ; In the 10th . of Mark there is no mention made , that our Saviour gave to the Pharisees any allowance of Divorce in any case , which is expressed in the 19th . of Matthew , and 't is granted our Saviour admitted it to the Jews ; what our Saviour saith about it in the 19th . of Matthew , was as much spoken to the Disciples , as what he sayes in the 10th . of Mark , as appears from hence , that the Disciples themselves make immediately the answer ; In the 19th . of Matthew , where our Saviour saith , Whoever puts away his wife , except for Fornication , &c. If the case be so , say the Disciples , taking it to themselves , 't is good not to marry , looking upon it as a strict doctrine , even with that exception and such a one as the world had not been acquainted with , and which they thought unsupportable . Calvin says , 't is the same passage that is reported in Mark , only Mark reporteth 't was spoken in the House to the Disciples , and Matthew omitting that circumstance sets down barely our Saviours speech ; Dr. Hammond agrees with Calvin in this matter , speaking of these places and about this very occasion , sayes he , that these places , That in Matthew on the one side , and in the other two Evangelists , at least in St. Mark on the other side , are a report of the same passage of story , and of the same part of Christs speech , appealing from the Mosaical permission to the first institution of marriage , there is no ground of making any question , and therefore it follows that one must be interpreted by the other , so thinks he . But suppose it were otherwise , when several of the Evangelists relate discourses of our Saviour about the same subject , by all judgement of reason those Evangelists that are more explicite and large must interpret those that are more implicite and brief , and there is no fitness at all in it to interpret those that are most large , and say most upon a subject , by those that are more brief and say least of it . But that which overrules me in this case is , that I find our Saviour no where Preaching one doctrine to the Jews and another to his Disciples , and that must be proved in this case , or else the point of Divorce and remarriage is visibly established in case of Fornication , if our Saviour gave that liberty only to the Jews , and made the exception singly for them , Then when he speaks generally to his Disciples , he must not only repeal the liberty Moses gave to the Jews , but the liberty which himself gave to the Jews , which is not fit to suppose ; Nor indeed has our Saviour throughout the whole Gospel given any one new Law peculiar only to the Jews , which this about Divorce in case of Fornication only must needs be , if it be restrained to Them , for they had no such Law before ; Moses permission of Divorce , and this of our Saviour could not be the same , for our Saviour would never have condemned what Moses did , and immediately have instituted the same thing himself : Nay , it must not only , if restrained to them , be a new Law to them , but a new Judicial Law , which were strange to suppose our Saviour should Then institute ; for if we deny it to be Judicial , and acknowledge it to be ( as indeed it is ) a Law moral , sounded upon mans first Creation and the first institution of marriage , then it cannot be restrained to the Jews , but must needs by the nature of it belong to all . Animadversion . THE third Reason makes against you . Christ cites original Scripture , light of Nature , grounds not to be shaken but by the God of Scripture and Nature , who indulged to the Jews , that albeit those great obligations , they might marry after Divorce for Adultery ; those times of infirmity God winked at , as he did at many things in the superstitions of the Gentiles , but these are the times of reformation under the Gospel . Answer . I conceive Christ would never have established marriage upon those grounds , and then have given a dispensation for divorce that those grounds would not admit of ; our Saviours speech must then be thus understood , by the Law of mans first Creation , and the first institution of marriage this divorce for Fornication and remarriage upon it , ought not to be , yet I will give you liberty to do it . Without doubt the divorce our Saviour then allowed was very well corresponding with those principles upon which he established marriage , and those principles being general and perpetual , his allowance of divorce must needs be so too ; Christs time was no indulging time , not a word in the Gospel of Christs winking at any thing , he settles every thing upon its true and lasting foundation , they are times indeed of reformation , and from whence can we more reasonably 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 intrins●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 inn●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 ●he nocent , and instead of be●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 ●nto a kind of Matrimonial Purgatory , and be rendred hereby uncapable to enjoy , ●ither the advantages of a marryed man , or the freedom of a single man. When by providential dis●bilities in either party , the duties of marriage cannot be performed , yet the marriage-bond continues unbroken , though the 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 l●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 .