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.

Answer.

The first is evident, that unchastity when punished with death was to be proved by two witnesses, not by rea∣son of any particular dire∣ction about the proof in That case, but because God established That as a general

rule for all Judicial pro∣ceedings, that by the testi∣mony of two or three wit∣nesses 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 un∣chastity were proved but by one witness, it was Then matter of Divorce, I crave leave to dissent from; Un∣chastity, if proved, could never be ground for Di∣vorce, for death was to en∣sue, 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 Neces∣sary in case of Divorce, nor in any case, where proof was Judicially required was one witness sufficient, Nei∣ther 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, far∣ther 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 act∣ings 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 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 sig∣nificat, admonere Hebraeos ne temerè uxores dimitterent, and sayes the same Author, Notum est quosvis Judices quorum summae & liberrimae potestati res aliqua permit∣titur, insontes non esse, si ab¦aequi bonique regula disce∣dant, jus ergo fuit, ut qua∣vis de causa uxorem mari∣tus

possit expellere, sed ea notione qua Praetor jus red∣dere dicitur, etiam cum in∣justè 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 fa∣vour in his eyes) of which himself could only be the proper Judge; In the 19th. of Matthew, where the Pha∣risees urged upon our Savi∣our, that Moses required no more in the matter of Di∣vorce,

but to give a writing of Divorcement, our Savi∣our 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 im∣ports thus much. (Mea sponte nullius coactu te uxo∣rem hactenus meam dimit∣tere, à me deserere ac repu∣diari 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 tem∣pore 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 Ju∣daeis non licuisse uxorem di∣mittere, nisi causa apud Ju∣dicem probata, satis ex hoc loco apparet, Dictum enim esse, ait Christus, qui uxo∣rem dimissam vult, libel∣lum det repudii; Dubitatio∣nem omnem nobis Josephus eximit, qui de se agens ita ait, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Verum tamen est hunc actum, non minus quam haereditatis Cessionem, atque alios solenniores solitos coram Judicibus peragi, quod

nos Digesta Talmudica do∣cent, sed erat hoc jurisdicti∣onis voluntariae non conten∣tiosae, quomodo manumissio apud Praetorem Jure Ro∣mano; Cognitionem igitur suam judex non interpone∣bat, nisi de dote aut donatione propter nuptias controversia inciderat, planè ut & apud Romanos.

And he adds after, Caete∣rum ut graviora mala evi∣tarentur, & veritatem & gravitatem causae noluit ad alienum arbitrium referri, sed ipsius mariti animo id aestimandum permisit; Quod mirum non est, cum vete∣rum Gallorum, aliarumque Gentium leges jus vitae &

necis in Vxores Maritis con∣cesserint.

For the third, If strong suspicion, the water of Jea∣lousie, I assent to it, he that doubted his Wives chasti∣ty, and in case he could be assured of her chastity, re∣solved not to part with her, and if she were found un∣chaste, desired the executi∣on of the Law upon her, obtained his end by the Wa∣ter of Jealousie; But I much question whether That, be∣ing of an extraordinary na∣ture, 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 de∣termine, 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 in∣deed was it in their power to have it executed, for the Romans had reserved mat∣ters of life to their own Ju∣dicatories, (though some∣times the people would vi∣olently 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 Adul∣tery; The water of Jealou∣sie, they had not the use of, and so nothing was done in these cases, but only they made use of the liberty Mo∣ses allowed for Divorces.