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TO end, such as hold to my opinion, lay it the more to Conscience, foresee∣ing that the contrary may stir up some wicked Hus∣bands to suborn false wit∣nesses upon Oath to con∣vince innocent Wives, that They being divorced, it may admit them to marry where they like better. Moreover it may fall out, not sel∣dom, that a wicked Wo∣man will confess her self an Adulteress, upon assu∣rance of some ample com∣pensation. More might be added.
'Tis a thing likewise to be feared, that if no better re∣medy be provided for inno∣cent Husbands than a Di∣vorce à mensa & toro, it may provoke them to rid them∣selves of their Adulterous Wives by some undue means; the rage of a man is great in those cases, and truly sometimes unconquerable e∣ven 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 de∣pend
upon proof by witnesses, there is no surer or better ground to proceed upon in all humane determinations, this matter has the greatest ad∣vantage 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 punish∣ment. A womans own con∣fession 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 pow∣er 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 Cran∣mer Archbishop of Canter∣bury, Goodrich Bishop of Ely, and other the chief of the Bi∣shops, Peter Martyr and other eminent Divines, and the most eminent Canonists, Ci∣vilians, and Common-Law∣yers then in the Kingdom, they set forth a Book called Reformatio legum Ecclesiasti∣carum, which we may well
reckon the judgement of the Church of England at That time about those things, be∣ing composed by such men impowred by the supream Authority, and in That Book the lawfulness of Divorce in case of fornication and re∣marriage upon it is fully as∣serted and justified.
I shall only add, that amongst learned men I find great disagreement in resolv∣ing this Question, whether the same right of Divorce be∣long 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
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 ano∣ther, 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 re∣spects, 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 up∣on 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 Thamy∣ris in Iconium, after she was contracted to him; This
story Mr. Selden relates at large, from the report of Ba∣sil of Selencia, but seems not much to credit it himself, however it was but a re∣fusing Marriage after con∣traction, Mr. Selden calls her only Sponsa, and saith, Nu∣ptias noluit, & sponsalibus renunciavit, and it was to one that most bitterly detest∣ed Christianity; The other instance is that in the begin∣ning of Justine Martyrs first Apology, where a Christian woman made use of the Ro∣man Laws to put away her Husband, and he commends her for it, but that was evi∣dently upon St. Pauls permis∣sion in case of desertion, for
her Husband was a notori∣ously wicked person and de∣parted from her.
In this matter I shall make much a better choice, to sub∣mit to your Lordships learn∣ed Judgement, than to de∣clare my own.