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; 'Tis a firm Maxim in the Civil Law, ut ubi eadem est ratio, jus idem valet, I find no ex­ception [Page 77] 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.

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 [Page 79] 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 [Page 80] 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 [Page 81] 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 [Page 82] 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, [Page 83] 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 [Page 84] 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 [Page 85] 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 & [Page 86] 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 [Page 87] 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 [Page 88] 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.

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: [Page 90] 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 [Page 91] 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 'tis 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 [Page 92] 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▪

[Page 93] 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 [Page 94] 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 [Page 95] 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 [Page 96] 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 [...] [Page 97] 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 [Page 98] That, if we look to the Law of Creation and first institu­tion of marriage, 'tis 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.

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 [Page 100] 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 [Page 101] 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 [Page 102] vetant, sed in arbitrio mariti relinquunt, malitnè uxorem retinere, an dotem reddere, & amittere quod propter nuptias donavit.

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, [Page 104] 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 [Page 105] to marry, it must needs be for both, for it must be up­on supposition of the Mar­riage-bond dissolved.

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 'tis very plain that in Both [Page 108] 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.

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 [Page 110] 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 [Page 111] 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.

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, 'tis 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. 'tis said he came into the same place, and in both the Evangelists 'tis said the multitude came unto him, and the discourse related be­tween him and the Pharisees appears evidently in both Evangelists to have been the [Page 115] 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 'tis 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 [Page 116] 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, 'tis 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, 'tis the same passage that is reported in Mark, only Mark reporteth 'twas spo­ken in the House to the Disciples, and Matthew omit­ting that circumstance sets down barely our Saviours [Page 117] 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 [Page 118] 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 [Page 119] 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 [Page 120] 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, [Page 121] then it cannot be re­strained to the Jews, but must needs by the nature of it belong to all.

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 [Page 124] 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, [Page 125] 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: 'tis 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.

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, 'tis 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 [Page 129] not, for as Divines say, Di­vortium non est praecepium, sed tantum permissum & pro­batum, 'tis 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. [Page 230] Now that Fornication in this sense is a dissolution of the marriage-bond, that 'tis 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, [Page 131] 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 [Page 132] 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, [Page 133] 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.

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 [Page 136] 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, [Page 137] and 'tis 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, [Page 138] 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 'tis 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 'tis not a ground for men to make a rule to go by, especially for the offence of one, 'tis 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 [Page 139] providentially, and Judicial­ly, which we can neither do reasonably nor regularly; 'tis 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 [Page 140] 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 'tis 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, 'tis wor­thy consideration, whether [Page 141] 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 [Page 142] 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 [Page 143] 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, 'tis certain that this is to be understood [Page 144] 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 [Page 145] 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 'tis not a thing probable or likely, that such who would not live chastely in a marryed condi­tion, should do so in a single [Page 146] 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.

Answer.

'Tis 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 [Page 149] 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 [Page 150] 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 [Page 151] 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; `Tis certain, in [Page 152] 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 [Page 153] 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 [Page 154] 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 [Page 155] 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.