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THose which are under Age cannot Contract Marriage without consent of their Father and Mother, or others under whose care they are committed, nevertheless if their said Father and Mother be so unreasonable as to refuse to agree to a thing so Holy and Profitable, even doing it in
hatred to Religion, the Consistory shall advise the Parties to have their recourse to the Magistrate.
The Discipline of the Antient Church has provided for what ours doth here enjoyn, and hath taken care to keep Children in the respect and obedience which they owe to their Parents, forbidding them to marry with∣out their consent, and 'tis not only in regard of Chil∣dren it does so, but also in regard of all such as are under Tuition of others; It is the matter and subject of the 42 Cannon of St. Basils second Canonical Epistle. * 1.1 Marriages made without consent of those under the power of whom one is, are Fornications, those then who marry during the Life of Father, or Guardian, are not excusable till their consent be had, for then the Marriage becomes lawful, and receives the vertue which it ought to have: This Cannon is as 'twere an abridgement of Two preceeding ones, as is observ'd by Balzamon and Zonares, Greek Canno∣nists, who pretend that Marriage is void without the consent I but now speak of, and that it ought to be dissolv'd. The 23th Cannon of the same Epistle is also very full to this purpose, Maids which follow their Lovers without consent of Father, &c. live in Fornication, but if Father and Mother are reconcil'd to them, the thing seems to be setled in a good state by this remedy; nevertheless that they be not admitted to partake of the Lords Supper until af∣ter three years Pennance: Whereupon the same Greek Cannonists above-mentioned, observe, that the consent of Parents, that is to say of Father and Mother, doth change Fornication into lawful Marriage, without de∣parting at all from the sensure contain'd in the Cannon.
The 22th Cannon of the Fourth Council of Orleans, * 1.2 in the Year 541, prohibits the taking a Maid in Marriage without consent of Father and Mother, the Sixth of the Third Synod of Paris, Anno 557 forbids also the same thing. The Third Council of Toledo made a like Decree Thirty Two years after the Synod of Paris, and 'tis still to be seen in the Fourth Volumne of the Coun∣cils, and in the Tenth Cannon, it is to what amounts the 358 chap. of VII. Book of the Capitularies of Charlemain, and Lewis the Debonnaire. Photius Patri∣arch of Constantinople saies the same in the Fifth of his Letters taken out of an Ancient Eastern Manuscript; there is not so much as the very cheat that has forg'd Two Decrees in the Name of Pope Evaristas, * 1.3 but has in the first of them taught the same Doctrine, and word for word as it is expressed in the Capitulary, but now cited; so that of necessity one must have borrowed it of the other. It is easie to judge after all I have hi∣therto said, Whether the Council of Trent does march in the steps of the Antient Tradition, when in the 24th Session, which is the Eighth under Pius the Fourth, in the Year 1563, and in the First chap. of the Decree touching the Reformation of Marriage, * 1.4 It anathematises those which affirm Marriages contracted by Children with∣out consent of the Father and Mother are void, and that the Father and Mother may break or ratifie them: a Condem∣nation wherein Pope Celestin the First is concern'd if we believe what Gratian reports of him in the First Volume of the Councils, cap. 4. p. 910.
Whereas our Discipline adds, That if Fathers and Mothers should be so unreasonable as not to consent to so holy and profitable a thing, the Consistory may ad∣vise the I arties to have their recourse to the Magistrate; it says nothing therein but what is agreeable to the An∣tient
Practice, as we find by the Letter of Photius, * 1.5 which I mention'd; for he declares that then the Judge may take cognizance of the Marriage, and declare it lawful, in preferring the protection of the Children, and their lawful desire, before the perverseness of Father and Mother.
As for those which are of Age and in possession of their own Rights, they shall be warned by the Ministers and Pub∣lick Assemblies of the Church, not to make any promise of Marriage but in presence of their Parents, Relations, Neighbours, and good Friends; and those which do other∣wise shall be sensur'd of their lightness, and slight of the said warning; and 'twere to be wished the said promises of Mar∣riage were made with invocation on the Name of God.
This Establishment was made to prevent Clandestine Marriages; there are put into the First Volume of the Council, some Decrees attributed by Gratian to Pope Celestine the First, which in the 4th, ordains that Parents of both Sexes should be present to witness the Marriage. Paulinus Bishop of Aquilea, in the Council he caused to assemble in a part of his Diocess called forum-Julii, de∣sires the Neighbours and chief of the place, should be present at Contracts of Marriage, to prevent the mis∣chiefs may ensue by Clandestine Marriages. The Coun∣cil of Trent in the 24th Session which I mention'd on the other Article, and in the same Decree of Reforming Marriages, chap. 1. Will, That it be done in presence of the Curate, or some other Priest that supplies his
place, and of Two or Three Witnesses; Which thing is renewed by Cardinal Borrome, in the Fifth and Sixth Councils of Millan.
Believers which are of Age, although they have been marryed, yet shall so far honour their Father and Mother, as not to conclude upon Marriage without first communica∣ting it to them, and for not so doing, shall be sensur'd by the Consistory.
We have already seen on the First Article, That Children under Power of Father and Mother, cannot lawfully contract Marriage without their consent. In this there is mention of those which have already been marryed, and who being desirous to marry a second time, ought in civility to impart it to them. St. Ambrose in the Ninth chap. of the First Book, touching Abraham requires that the Widow Woman which intends to re∣marry, should refer to Father and Mother to make choice of the Person which she ought to marry. Balza∣mon and Zonaras explaining the 42 Cannon of St. Basils second Canonical Epistle, distinguishes Widows which are under the power of any Relation, from those which depend only of themselves; And for these last, they pretend they are at liberty to marry to whom they please, so it be in the Lord, and according to the Laws and Cannons; but as for the others, they think they ought to have the consent of those under whose Tuition they are, and who, without it, have right to dissolve the Marriage. There is in the Third Tome of the
Councils a Decree Attributed to some Council of Arles, * 1.6 where there's mention of the Marriage of Wi∣dows, and of the consent of Fathers and Mothers.
Fathers and Mothers making profession of the Reformed Religion, whose Idolatrous Children would contract Mar∣riage with Idolatrous Wifes, shall be warn'd as much as possible to divert their Children from such Marriages; and especially when they are not too hasty, the Fathers shall im∣ploy their Paternal Power to hinder them; if they cannot prevail with them, being present when contract marriage is passing, they shall declare to have abhorrence of the Idolatry wherein their Children do more and more plunge themselves; which being done, the said Fathers may consent to the pro∣mises and conditions concerning the Portion, and the like; and shall represent in Consistory the endeavours they have used to prevent such marriages.
We shall see on the Twentieth Article that it was prohibited to the Orthodox to marry with Persons of a contrary Religion, unless they promised to imbrace the Orthodox Religion, and that they should accomplish their promise before Marriage; therefore the Fathers and Mothers could not consent to such Marriages but under the Conditions enjoyned by the Cannons. It cannot then be said that our Discipline differs from that of the Antient Christians in the Matter which we Ex∣amin, and the which shall receive farther Explanation from what shall be said on the Twentieth Article.
Henceforward shall be used in promises and Contracts of Marriage, terms of the Future Tense; and the said words shall not be esteemed so binding as words of the Present, seeing words of the Present do not promise Marriage; but does it in effect; nevertheless these promises by words of the Future, shall not be dissolved without great and lawful causes.
Of all the Articles of our Discipline, there has scarce any one been so often touched by the National Synods as this, by reason of the difference which is found be∣twixt the Ancient and Modern way of Marrying; for formerly the promises of Marriage were made by words of the Present, and now they are made by words of the Future Tense, according to the Laws of the Kingdom, and the Establishment of this same Discipline. I find nothing in the first Ages of the Church that can in∣form me the manner that was used in contracts of Marriage, that is to say, whether promises of Marriage were conceived by words of the Present, or by words of the Future Tense: I only judge by things hapned in the latter Ages, that in some places these promises were made by words of the Present; which at last was forbidden.
In effect, * 1.7 in the year 262. Nicholas Gilant Bishop of Angers, made this Synodal Decree, We appoint our Priests that they do not consent, but to forbid publickly in their Churches, to contract Marriage by words of the Pre∣sent, until one be come to the Nuptial benediction. The Fifth Council of Millan under Cardinal Borrome ••••••∣scribes the same thing in the Year 1••79. * 1.8
As for Consanguinity and Affinity, Believers cannot con∣tract Marriage, any other way than is permitted by the Kings Edict.
When one lives in a Country, one must submit to the Laws Established for the quiet of the Subjects, as to what concerns the things of this Life; and 'tis by this maxim that we carefully observe the Edicts and Laws of our Kings touching the Degrees of Affinity and Consanguini∣ty in marriage.
It is by no means Lawful to go to the Pope to demand to be dispensed in the hindrances of Marriage, because in do∣ing hereof one owns his Tyranny, but one may in a Degree not forbidden of God, though prohibited by the Civil Power, Address one self to the King.
As we do not acknowledge the Popes Power, we do not vouchsafe to Address our selves to him to obtain any dispensings touching the hindrances of marriage: It is to the King we Address our selves to be dispensed of Degrees forbidden by the Civil Law of his Kingdom, and not by the Word of God.
The Cognations called Spiritual, are not so much as com∣priz'd
nor understood by the Words of Consanguinity or Affi∣nity in the Kings Edict, and cannot hinder the contract of Marriage.
The more I read our Discipline, the more I therein find a resemblance with that of the Ancient Christians, I speak of Christians of the first Centuries; for those which have apply'd themselves to the reading Ecclesiastical An∣tiquity, might perceive the changes that have succeeded in process of time in the Ancient Discipline, as well as in the Doctrine, the Establishment I am about to Examine is an Authentick proof; for until the 7th. Century or at least to the end of the 6th. it was never thought of to propose in the works of Ecclesiastical Writers, nor in Councils, Spiritual Cognations, as lawful hindrances of wedlock. If the Epistle attributed to Pope Deus-dedit were true, it would not be deny'd that since the 7th. Century, these pretended Spiritual Cognations were admitted in the Church, but 'tis most certain 'tis false and spurious, it needs only to Read it to find that 'tis false and forged, besides that a good while since, * 1.9 the late Mr. Blondell has shewed clearly in the Judgment he gave of it, that 'twas the work of a Cheat and Impostor.
I know there is in the 2d. Volumn of the works of Gregory the Great, certain Decrees in one of which one Anathematises him that shall have Marry'd his spiritual Gossip, so that if these Cannons are truly his, one must own that these spiritual Cognations has been used in the Latin Church since the latter end of the 6th Century; but what makes me doubt if these Constitutions were his, is, that Dom. Luke D' Achery who has caused them to be printed in the 2 Volumns of his Spicilegium, amongst an Ancient Collection of Cannons, which he thinks to have
been Antecedent to the 9th. Century does indeed repre∣sent them under the Name of Gregory, but somthing du∣biously, not saying of what Gregory, so that they may as well be of some other Gregory; for Example, to the se∣cond, or third, and so the one must come down to the 8th. Century in which the one and the other filled the Roman See.
In effect, in that Century, * 1.10 spiritual Affinity were fre∣quently in the West a hindrance of Marriage, as appears by the first Cannon of a Synod held at Metz under Pepin in the year 753 by the 5th. Chap. of the 5th. Book of Ca∣pitularys, * 1.11 and by the answer of Pope Stephen the 2d. to the 4th. Question was made him on this Matter, as also by the 12th. Cannon of the Council of Compeigne, Anno 757. * 1.12 Since that time the Latins has almost always prohibited marriages of persons betwixt whom there was any spiritual affinity, as for having presented a Child together to be Christened. I observe nevertheless in the 10 Century, that a certain Bishop called Azo, * 1.13 maintained by the holy scrip∣tures, against Atto Bishop of Verceil, that these spiritual affi∣nities were not sufficient to hinder Marriage, whereas Atto did not defend himself to any purpose, but by the Laws and Customs of Princes and Sovereigns, especially by that of Luitprandus who Reigned then in Italy. It is not therfore to be wondered if the Council of Trent Autho∣riz'd this sort of Affinities the 11th. of November Anno 1563 in the 24th. Session, * 1.14 under Pius the 9th. as is ex∣plained in the second Chap. of the Decree of Reforma∣tion of Marriage; although at the end of the 9th Century it was not exactly observed in all the West, as appears by the Cannons 47 and 48 of the Council of Tribur, of which I will speak of on the 13th. Article.
The Greek Church would in nothing come behind the Latin in this matter; for at the end of the 8th Century,
the 6th. Oecumenical Council assembled at Constantinople made a decree, when after having establish'd that the affinity of the Spirit is more considerable than that of the Body, the Fathers declare it is come to their knowledge, that in some places, those which have presented Children to be Baptised, do after marry the Mothers of those Chil∣dren, when they are become Widows, which the Council forbids to be done for the future, and do even make null Marriages of this kind, which shall be made after the Prohibition' and condemn those which contract them to the punishment of Fornicators. We learn by this Decree, that till then no difficulty was made in divers Places to make these kinds of marriages, and to pass by the consi∣deration of spiritual Cognations which might be betwixt those as made them.
Nevertheless since the 6th. Century, the Emperour Justinian had ordained that spiritual Cognation should be a lawful hinderance of Marriage, * 1.15 although the Greek Church made no Decree before that I but now cited and which is after that of Justiniam above a 100 years. Also the Greek Cannonists which have searched the Original of this custom, have gone no farther then the Cannon of Constantinople, and the law of this Emperour. But what surprises me is to see Pope Nicholas the first in his Answer to the Interrogatories of the Bulgarians, in not making these Impediments of Marriages proceed from the Decrees of his Predecessors, but from the laws of Princes and Sovereigns, as if what the Church has done in this occasion was only the Execution of the command of Kings and Emperours. I will say nothing of the Arabian Cannons, attributed to the first Council of Nice, the 21th. and 23th. of which treat of spiritual Cognations, because by confession of the Learned which have any candor and sincerity, these are forged Cannons,
and were forged several years after the Council of Nice. It is better I should finish the examining of this Article by this remark, that when our Discipline declared that these cognations, called spiritual, hindred not to contract Mar∣riage, it follow'd the steps of the Primitive Christians to whom this sort of Affinitys and Relations was unknown for the first 6 whole Centuries, or little less, for towards the end of the 6th. the Emperour Justinian made a Law, but 'twas not soon observed in the Church.
It is not lawful to Marry the Sister of the deceased Wife, such Marriages are forbidden not only by the Laws, but also by the Word of God. And altho' by the Law of Moses it was ordained that if the Brother died without Children the Bro∣ther should raise up seed to his Brother, nevertheless such a Law appointed for the People of Israel, was temporal, regard∣ing only the preserving a Lineage of the said People. There is another Reason in the Sister of the deceased Marry'd Person, in as much as the Alliance is not contracted by commixture of Blood, therefore such a Marriage ought to be receiv'd and approv'd. Nevertheless heed must be taken, the Magistrate and weak Brethren be not offended.
The 19th. of the Cannons that go in the Apostles Names, does not admit him into holy Orders that has married two Sisters, whereupon Balsamon observes, that such a marriage is Null. And the 2d. of the Synod of Neosesaria, assembled as is thought, in the year 314. Excomunicates for life, her that shall have Married two Brothers; that is to say, that shall have Marry'd them
one after another; but if in danger of Death, she promi∣ses to break the Marriage when she is recovered, the Si∣nod by movement of pity, shall admit her to do Penance, whereas it declares, that if she or the Husband dye in this Marriage, the Surviver shall scarce be admitted thereunto. St. Basil in the 2d. or 3d. of his Canonical Letters, also con∣demns Marriages made with two Sisters successively; he also explains himself more clearly in a Letter he writes to Diodorus of Tarsus, and which is in the 2d. Tome of the of the Greek Pandects printed at Oxford of late years; and 'tis the 197 amongst St. Basil's Letters; upon this Let∣ter Balsamon observes, that it has no great need of In∣terpretation, because in his time there was no Christian Man that would contract such Marriages; that it may be was true in regard of the Greek Church which suffered it not, but not in regard of the Latin, where the Bishops of Rome grant Dispensations for two Brothers and two Sisters to marry, and I admire Balsamon knew nothing of it, or if he did, that he said nothing of it; seeing that even in the Age he lived, that is in the 12th. Century, there is found amongst the Latins, these kind of marriages. The Frier Blastares in the same Tome of Pandects but now mention'd, * 1.16 follows the Authority of Ancient Can∣nons, which prohibit the Marriages we now Treat of. Avitus of Vienna doth not otherwise, in his 14.15. and 16. Letters. I may also alledge against these same Marri∣ages, a great number of other Cannons, as the 18th. of the first Council of Orleans of the year 511, the 65 of of that of Agde in the year 506, the 30 of that of Epaume in the year 517, the 21 of the 2d. of Tours, Anno 567, the 30 of Auxer in the year 578, and several others which are, as well as these, in the first Volumn of French Councils, by Sirmondus; but it sufficeth what I have hi∣therto said, I shall only add, that I find not in any of the
Cannons, nor in others made a long time after on the same subject, I say, I do not find, there has been reserved to Bishops, nor to Popes, the right of dispensing in these occasions, because such marriages are prohibited, not only by Humane, but by Divine Laws, as the Fathers of the 2d. Council of Tours do plainly acknowledge, in the Cannon I but now mention'd.
But if it be prohibited to marry the sister of the De∣ceased Wife, our Discipline does not condemn marrying the sister of one contracted, that is dead, because it sup∣poses that an Alliance is not consummated but by Com∣mixtion of Blood, or as St. Austin speaks in Gratian, * 1.17 by commixture of Sex, saying, without this Accouplement there's no Marriage; nevertheless this Discipline enjoyns to Act so as not to give distaste to the Civil Magistrate, nor weak Brethren scandaliz'd, there can nothing be more prudent, nor more Circumspect. Pope Alexander the 3d. in the Appendix of the Council of Latran, Anno 1180, reports this Decree from one Benedict his Prede∣cessor, of whom it had been demanded if one might marry the sister of one he had been contracted too, who died before accomplishment of the Marriage, * 1.18 We order and command by Apostolical censure, that it may be done without danger; for wherefore should I forbid what the Scrip∣ture never says was prohibited, and that the very Laws of the Land say nothing against, when they reckon up the persons betwixt whom it is not lawful to contract Marriage; and this shews by the way, * 1.19 that the Decrees which Gratian attri∣butes to Julius the I. and to Gregory the I. are but forged Decrees, or at least that they were of no use in the Roman Church.
The betrothed may not Marry the Mother of his betroth∣ed, deceased.
This Article having something in it of the Nature of the former, it is with great Justice the Rules of our Na∣tional Synods refer it to the Magistrate, without whose Authority they will not have us proceed in our Churches to the Celebration of such Marriages as are now treated of; see here how the National Synod of Charanton in the year 1644, cleared up the Article, The betrothed may not marry the Mother of the betrothed, defunct, unless it be so that the Magistrate has authoris'd it by his Order, which shall be known as well by the Pastor, as by the Parties con∣tracting, which is so much the more reasonable, as that the Laws of Emperors formerly prohibited such Marriages.
Neither shall it be lawful for any one to marry the Aunt of his Wife, such marriage shall be Incestuous, and though the Magistrate should suffer it, yet shall it not be celebrated in the Church; to which the Pastors shall take great heed: And by the same reason is prohibited to marry the Neece, of his de∣ceased Wife.
Our Discipline looking upon the marriage of a man with his Wifes Aunt to be Incestuous, it hath reason not to suffer it to be celebrated in the midst of us, whatever permission the Magistrate may give for the same, because the Authority of the Magistrate cannot render a marri∣age lawful which of it self is Incestuous. The Ancient Cannons have not fully explained themselves on this mat∣ter,
nevertheless they have so well understood the nature of Incestuous marriages, that I make no doubt but they would have included in the number that which we Ex∣amine; at least it appears to me it may be so gather'd from their conduct in such like Occasions. However it be, * 1.20 I can't tell, but Pope Zachary, who condemn'd the marriage with the Widow of his Uncle, would also have condem∣ned it with the Aunt of his Wife, deceased.
The Authors of our Discipline, treat after the same manner, Marriage with the Neece, and second Neece of ones Wife deceased; the reason is, because the Husband and Wife by Marriage become one Flesh, and as it may be said, one Person, and so by reason of this strait and intimate Union, the Aunts and Neeces of one, are the Aunts and Neeces of the other; now marrying with the Aunt, and Neece, or second Neece, is forbidden not only by the Word of God, but also by the Discipline of An∣cient Christians, as may easily be proved by a great num∣ber of Cannons, if it were necessary; but because the thing is without difficulty, * 1.21 I'le content my self to shew that St. Ambrose highly condemns marriage with the Neece, in his 48 Letter, Book 6. Gregory I. * 1.22 does Ana∣thematize it in a Roman Synod. The Popes, Eugenius XI. and Leo IV. in the 9th. Century, does the same as Gre∣gory I. did in the 6th. having each of them held a Synod at Rome, where Anathema is pronounced in the 38th. Cannon, against those that marry with their Neeces. Nevertheless Popes at this time are not so scrupulous, nor so observant of the Decrees of their Predecessors, but that they have sometimes dispensed an Uncle to marry his own Neece, we have seen examples of it in our Days, altho' the Holy Scriptures expresly forbid it; and as for mar∣rying with an Aunt, * 1.23 it is also reckoned amongst Incestu∣ous Marriages, by the first Cannon of the Synod of Mètz in the Year 753.
As for Marrying ones Wifes Brothers Widow, Civility nor Decency will not permit it.
All the Cannons of the Councils of France, which I cited on the 9th. Article, and many others which I have not alledged, do absolutely forbid marrying ones Bro∣thers Widow; but I have not met with one that has spoke of marrying ones Wifes Brothers Widow; Our Discipline also says no more of such a Conjunction, but only that it is contrary to the Laws of Decency, and Gentility; ne∣vertheless because the Magistrate in these occasions, has power to overpass these Considerations, of Civility, and Decency; the National Synod, whereof I spake but now and whose direction I cited on the 10th. Article, does absolutely refer the decision of the Case to the Civil Ma∣gistrate, in these terms: The Churches shall make no diffi∣culty to confirm such Marriages, if it appears that the con∣tracts has been before duely authorised by the Magistrate.
No man may after the death of his Wife, marry her with whom he committed Adultery in his Wifes life time, unless such marriage was authoriz'd by the Magistrate.
St. Basil in his 2d. Cannonical Epistle to Amphilochius teaches the same thing, * 1.24 according to Balsamon's Explica∣tion.
The Frier Blastares in his Alphabetical Collection of Cannons, is of the same mind, * 1.25 as he explains himself in the 8th. Chap. of the Letter B. However our Disci∣pline that condemns such a marriage, nevertheless suffers it to be celebrated if the Magistrate appoints it.
The Council of Tribur, * 1.26 which was formerly one of the Kings Houses, not far off of Mayance, this Council assembled Anno Dom. 895, under the Emperor Arnulphus, made this Decree, which agrees very well with that I now Examin; We appoint and publish by one consent, ac∣cording to the difinitions of Cannons, that if any one has committed Adultery with another Woman during her Hus∣bands Life, and that this Husband comes to die, this un∣lawful access shall be forbidden him by Judgment of the Synod▪ to the end he should not marry her with whom he had before committed Adultery; for we will not, and 'tis not sutable to the Christian Religion, that any one should take to wife her whom he had before defiled with Adultery: and as for the Cau∣tion given by our Discipline in regard of the Magistrate, the Fathers of Tribur have not passed it in silence; for in the manner they speak to King Arnulphus in the preface, they give plainly to understand, that they were perswad∣ed that it was a civil case, wherein the Prince might Ex∣ercise his Power.
It being so, that the principal occasion of Marriage is to have Issue, and propagate, and to avoid Fornication, and Adultery, the Marriage of a Man known to be an Eunuch, cannot be allow'd of nor solemnized in the Reformed Church.
The Council of Verbery in Vallois, requires Marriage
should be Dissolved for insufficiency of the Husband, * 1.27 being complained of by the Wife and duely proved, to whom the Synod permitts to do what she will, that is to say, * 1.28 to re-marry: Pope Stephen the second however two years after, prohibits separation for cause of insuffici∣ency, nevertheless he orders dissolution if one of the par∣ties be tormented with the Devil, or infected with Le∣prosie, wherein he followed not the sentiment of Gregory the second his Predecessor, * 1.29 who about 30 years before suffered a man to separate from a woman who was insuffi∣cient, and to re-marry with another. The 55th. chap. of the 6th. Book of Capitularies of Charlemain, gives the same liberty to the woman, if the man be insufficient, which Isaac Bishop of Langres repeats in the 13th. chap. of the second Treatise of his Cannons. * 1.30 Photius a Writer of the 9th. Cenury and Patriarch of Constantinople, speakes no otherwse in the 13th. Title, chap. 4th. of his Nomo∣canon; Its true he requires this separation be made after having suffer'd three years her Husbands insufficiency, and in the first of his Letters taken out of an Ancient Eastern Manuscript, he sets down insufficiency as a lawful cause of separation, with free liberty to the other party, whither the Man, or Woman, to re-marry.
Marriages shall be proposed in the Consistory, with suffici∣ent attestations of promises.
This Establishment is to prevent Clandestin Marriages. I will shew on the 19th. Article, that it is conformable to the Ancient Discipline.
Baines shall be asked in places where the Parties do reside and are known, and if they will be Married in some other place than where their Banes have been called, they shall take sufficient attestation that they have been published three several times.
Pope Innocent the third making Answer to the Bishop of Beavais, in the 4th. Book of Decretals, * 1.31 makes men∣tion of a publication of Banes, and in the Council of Latran which he assembled in the year 1215, he appoint∣ed that the Custom of publishing Banes of Marriage in Churches, observed in some places should be gene∣rally observed in all places: * 1.32 accordingly we Read in the second volume of Dom. Luke D' Achery a Benedictine Fri∣ers Spirilegium, that Nicholas Bishop of Angers, prohi∣bited in the year 1270, * 1.33 to confirm or celebrate any mar∣riage whatsoever, until publication was first made of it in the Church, he also mentions the same practise in another Synod in the year 1274, * 1.34 which William his suc∣cessor also renewed in the year 1304. The Council of Trent in the 24th. Session the 11th. of November, 1563. the 8th. under Pius the IV, prescribes also the same thing.
Cardinal Borrome failed not to confirm this custom, and to recomend the observing of it in his Councils at Millan, and 'tis to be observed the testimonies I have alledged, require that publication shall be made in the Churches of the parties contracting.
Banes shall be published three several Sundays in places
when there is Sermons, and in other places when publick prayers may be said. However, the Publication ought to continue the space of 15 dayes, after which time the Marri∣age may be Solemniz'd in the Assembly, and even on the third Sunday.
The same Testimonies I alledged on the foregoing Article, do prescribe in substance, the same thing as our Discipline doth; for some will have it, that the publica∣tion now spoke of, should be made in a certain time, which should give leisure to those who would oppose a Marriage, to prepare their Reasons; others that Banes should be asked several times on Holy-daies, others to the Number of three several times.
Those which live in places where the usual Exercise of Reli∣gion is not Established, may cause their Banes to be published in Romish Churches, inasmuch as 'tis a matter partly politi∣cal.
The publishing of Banes being a thing meerly politi∣cal, our Discipline had reason, when it suffer'd those of our Religion, in the case hinted at, to have them done in Temples of the Romish perswasion.
The Churches shall not Marry any body without having ful knowledge and approbation.
Besides what I have said on the second Article, it ap∣pears by the first Cannon of the Council of Laodicea, that Clandestin Marriages were condemned even in that time. There is in the third Volume of Councils, a De∣cree of Pope Hormisdas taken out of Gratian, and is con∣ceived in these Terms; * 1.35 That no Believer of what quality soever, do not Marry clandestinely and in secret, but let him Marry publickly in our Lord, * 1.36 in receiving the Priests Benediction. This Hormisdas was Pope in the beginning of the 6th. Century. Herrald Bishop of Tours makes the same prohibition in the 130 chap. of his Capitulary Anno Dom. 858. and the 15th. Can. of those which Pope Innocent the third proposed and caused to pass at the Council of Latteran in the year 1215, contain the very like constitu∣tion. It is therefore that in our Churches, no Stranger is Married without having a good attestation from the Church whereof he is member, to know if the Banes have there been published three several Lords dayes without any opposition. Cardinal Borrome in his second Council of Millan, Anno Dom. 1569, Decree 26, will have it so practis'd, * 1.37 according to the Ordinance of the Council of Trent.
When one of the parties is of a contrary Religion, the pro∣mises of Marriage shall not be received nor published in the Church, until the party of contrary Religion be sufficiently instructed, doth protest publickly in the Church of the place where the said party is known, that with full resolution he renounces all Idolatry, and Superstition, particularly the Mass, and will by Gods assistance persevere therest of his life, in his
true worship and service, of which instruction the Consistory shall take account. And it shall not be lawful for any Pastor or Consistory to do otherwise, under pain of being suspended, and even of being turn'd out of their office.
Even from the first Ages of Christianity, the Orthodox were forbidden to Marry with Persons which were not of their Communion, but of some other Sect which was looked on as Heretical and contrary. * 1.38 The Coun∣cil of Elebori, or Eluira in Spain, in the year 305, imploys to this purpose the 6th. of its Cannons. The 10th. and 31st. of Laodicea about the year 360, treat of the same thing; But the 14th. of Calcedon is more full; for it pro∣hibits those kind of Marriages, unless him that intends to Marry an Orthodox Maid, * 1.39 doth promise to be converted to the true Faith: The Frier Blastares in his Pandects print∣ed at Oxford, of whom I have spoke already, explaining this Cannon of Chalcedon, makes two considerable re∣marks; first, that the Consummation of Marriage now spoke of ought to be deferr'd until the Heterodox party has accomplish'd his promise; the second, that the same thing is to be required of Latins (that is, to say of those of the Church of Rome) when they desire to marry Women that are Orthodox; an evident proof that the Latin Church was esteemed a Hetorodox Church by the Greeks, in Blastares's time, which was in the XIV. Century.
I may alledge several other Cannons against the Mar∣riages now spoke of, * 1.40 as the 72 of the 6th. Oecumenical Council at the end of the 7th. Century. The 19th. of the 2d. Council of Orleans in the year 533. the 6th. of that of Auvergne, assembled 2 years after, and the 25, and 26 Decrees of the 1 Title of the 2d. Council of Millan, which I cited on the foregoing Article.
If from Councils we pass to Ecclesiastical Writers, * 1.41 we shall find several which have explained themselves after the same manner. St. Ambrose in the 9th chapter of his first Book touching Abraham speaks so clearly, * 1.42 and alleages such strong Reasons that 'tis not to be doubted but he condemned Marriages, con∣tracted betwixt Persons of different Religions; it is what he teaches also on the 118th Psalm, and according to the Hebrews the 119th. * 1.43 And in the 24th Epistle of the Third Book in the 5th Volume of his Works, he is not far from this Opinion. The Deacon Hillary in the Third Volume of the Writings of the same St. Ambrose, explains the words of the 39th verse of the 7th chap. of the 1st Epistle to the Cor. Let her marry in the Lord, by these, to a man of her own Religion; and Balsamon, to an Orthodox, * 1.44 in interpreting the 41 Cannon of the Second Canonical Epistle of St. Basil; Blastares on this same Cannon, to a believing man.
If one of the Parties that desire to be Marryed is Excom∣municated, the Marriage shall not be admitted in the Church unless the Excommunicate Person makes confession of his faults. As for those which are suspended from the Lords Supper, the Consistory may permit them to marry notwith∣standing the suspension, however having good reason for it.
Excommunicate Persons not being looked upon as Members of the Church during the time of Excommu∣nication, it is absolutely necessary they should make publick acknowledgement of their faults, to repair the Scandal they have committed, before one can proceed to Celebrate their Marriage; And I have shewn on the 11th Article of the 11th Chapter, that they were not so much as suffer'd to present a Child to Baptisme.
The Panes of Widows which re-marry shall not be pub∣lished in the Church till Seven Months and half at least after the Decease of their Husband, to avoid the Scandals and inconveniencies may happen by it; unless it so happen that the Magistrates Order may interpose to the contrary.
Herraid Bishop of Touers in his Capitulary of the Year 858, * 1.45 assigns but 30 Dayes, but Photius in the 2. chap. of the 13. Title of his Nomocanon, requires there should be a years mourning before a Woman should marry again, unless the Prince suffer her to marry in the first year of her Widowhood, or that she had not layn In till the end of the year. The Frier Blastares of whom I have so often spoke, proves this same practice by the Laws of Emperours, and also doth Photius, to which our Discipline well agrees.
Marriage shall be celebrated publickly in the Company of Believers; and that by the Ministry of the Pastors, and none else.
It is a very long time since Christians have been wont publickly in the Church to cellebrate Marriage, seeing Tertullian in the Fourth chap. of his Book of Pudicity, causes those which have not done so, to pass for Adulterers and Fornicators, and in the Eighth chap. of the Second Book he writes to his Wife, he publishes the happyness of those which the Church has bless'd, this benediction preventing the course of private Mee∣tings, * 1.46 and of Clandestine Marriages. Thence it is the Fourth Council of Carthage orders Fathers and Mothers or the Bridegrooms, to present the Bride and Bride∣groom whose Marriage is to be Celebrated. Pope
Hormisdas in the beginning of the Sixth Century ap∣points also it should be done publickly in the Church. There is in the Book of Sacraments of Gregory the First, which Maynard a Benedictine Frier has Printed, * 1.47 a whole Liturgy about Cellebrating Marriage, which was taken out of a Manuscript of the Church of Rheims. The Deacon Hillary in the Third Volume of the Works of St. Ambrose, speaks of this benediction on the 12th verse of the 3. chap. of St. Paul Ep. to Timothy, and on the 3. of the 5. chap. it is likely St. * 1.48 Chrysostom had it in his thoughts when in his 48th Homily on Genesis he ex∣horts to send for the Priests to knit by Prayers and Blessings, the Union and Concord of Marriage. St. Isidore of Sivill in the 19th chap of the 2. Book of Di∣vine Offices, saith, That when the Priest blesses Mar∣riages, he does it in imitation of God, who blessed the Marriage of the first Man. The Kings Charlemain, and Lewis the De bonnaire, in the Seventh Book of the Capitularies chap. 358, amongst several Conditions they prescribe necessary to a lawful Marriage, they have not forgot the Blessing we treat of; And in the Capi∣tularies of Charles the bald, is to be seen the Nuptial Blessings of his Daughter Judith with Edelwolf King of England, and of Hormintrude with himself. I would alleage other proofs of this Ancient Practice, but not to tire the Reader, I will conclude with the Testimony of Photius, who in two of his last five Letters by way of Augmentation at the foot of the rest, that is in the First and Fifth, he several times makes mention of the publick benediction of Marriages by the Pastors.
It is convenient for the Order of the Church not to Ce∣lebrate Marriage on Sacrament Dayes; and this Order shall not be broken but on weighty reasons, which the Consistory
shall advise upon. Neither shall Marriages be solemniz'd on Days of Publick Fasting.
The Cellebration of the Lords Supper which invites us to meditate of the Death of our Saviour, and which requires of us Holy Dispositions to partake worthily of it: the Cellebration I say of this Holy Sacrament, not agreeing very well with what usually passes at Christian Weddings, it is with great Reason the Authors of our Discipline has forbidden to solemnize any Marriage on the Days appointed for the Communion; no more than on Days appointed for Cellebration of a Publick Fast; because Fasting is an occasion of Affliction and Tears, and Marriage on the contrary, after the manner most People use it at this time, is of prophane Rejoycing, and very often of Debauchery and Excess. The Antient Church prohibited, although after several ways, to Cel∣lebrate Marriages in certain times, as appears by the 52 Cannon of Laodicea, and by a fragment of a Coun∣cil of Lerrida in the Year 524. Tom. 3. Concil. and the Second Council of Aix la Chapella, * 1.49 in the year 836 de∣fends in the 18th Cannon of the Third chap. to solem∣nize Marriages on Sundays, for the Reverence of the Day. Tom. 2. Conc. Gall. p. 394.
Those who have been contracted; and that have cohabit∣ted together before being lawfully Marryed, whether their fault came to be known before or after Marriage is solem∣nized, they shall make publick confession of their fault, or before the Consistory, according as it shall think convenient. And it hapning before Marriage, such Solemnities shall be observed at the said Marriage as the Consistory shall think fit. Except those who shall have lived together during the time of their ignorance without contempt and slighting of
the Ecclesiastical Order; also those which shall have coha∣bited together when there was no Church setled at the place of their Habitations, or in the Province. All which shall only be cited to the Consistory, to the end the Marriage may be Ratified and Blessed in the Church, if the Consistory shall see it Expedient.
St. Basil in his Third Canonical Epistle, Can. 69. * 1.50 had appointed something of this kind in these terms, If a Reader has known his Sweetheart before Marriage, he shall be suspended from his Office for a year, at the Expiration whereof he shall do his Duty, without being capable of ad∣vancement. By this may be seen, he would have de∣creed against Lay People which should have commit∣ted the like Offence, the pains expressed in our Dis∣cipline. The Frier Blastares which I have often cited, especially on the XX. Article of this Chapter, will, * 1.51 that the Punishment of Fornicators be given to those that have known each other before they have been lawfully Marryed.
Cardinal Borrome in the Second Council he caused to be held at Millan in the year 1569, * 1.52 remits the Abso∣lution of the Sin now treated of to the Bishop, because 'tis frequently committed, and prescribes severe Pen∣nance for those that are guilty of it; which he repeats again in the Sixth Council Assembled at the same place Thirteen Years after the Second.
To prevent Inconveniences which arise by too long defer∣ring Cellebration of Marriages, the Parties, and those in whose care they be, shall be advertis'd not to delay the Celle∣bration of Maraiage above six Weeks if possible.
It is an Establishment of Pollicie, to prevent the in∣conveniencies
conveniencies and ill consequencies as may happen in too long deferring the Solemnizing of Marriage; And 'tis with regard hereto, that Cardinal Borrome, prohibits in the place I but now cited, I say, he prohibits all man∣ner of Familiarity and Commerce to contracted Per∣sons.
Marriages shall be Register'd, and carefully kept in the Church.
This Rnle regards the Publick good, therefore often∣times recourse is had to Registers of Marriages which are kept in both Communions, and the Copies taken many times serve to terminate great Law Suits. The Council of Trent appointed in the year 1563, Session 24. chap. 1. of the Decree touching the Reformation of Marriage, * 1.53 it ordains Each Curate should have a Book, wherein he should write the Names of the Marryed Folks, and of the Witnesses, with the Day, and Place where the Marriage was contracted: * 1.54 Cardinal Borrome renews this injunction in the First and Third of the Councils he held at Millan.
Believers whose Wives and Husbands shall be convicted of Adultery, shall be admonished to be reconciled to each other, but if they will not, the Liberty they have by the Word of God shall be declar'd to them; Nevertheless should this happen to one that is imployed in the Church, he may not reassume his Wife, and exercise his Office.
St. * 1.55 Austin has made Two Books on Adulterous Mar∣riages, that is of Marriages wherein Adultery does in∣tervene, and in the Second of these Books, chap. 6, 8, 9. he requires the same Conduct should be held towards
the Party convicted of Adultery as is Established by our Discipline, that is to say, that the Innocent Party should continue with him that violated their Marriage Vow, and he alleages for a Reason, That being a Be∣liever we ought to believe, that she has been washed from her Sin, by Baptisme, or by Repentance; Never∣theless this is but an Advice or Council, which he gives, without imposing any necessity to do so, on the Party unconcern'd, which is just the Rule prescribed by the Article we examin, unless it be that it declares, that if such a thing should happen to any one that had an Of∣fice in the Church, he could not take his Wife again, and execute his Office, because doubtless he would not be so much to Edification, and the remembrance of his Wifes Adultery, would be at least to the weak, a Sub∣ject of Offence, and Scandal. So 'twas the Council of Neosesaria order'd it in the Year 314, Can. 8. which enjoyns those that are Established in the Ministry of the Church, whose Wifes have committed Adultery, it enjoyns them to forsake them, or if they will live with them, it declares they can no longer Execute their Of∣fices. See Gratians Decree, Caus. 32. q. 1. can. De Be∣nedicto where the same Practice is Authorized, although some of the Fathers, forbid cohabiting with the Adul∣terous Party.
To regulate the Extravagance of Marriages by reason of Adultery, the Party grieved may prosecuee at Law the Party that has offended, before the Magistrate, until that by definitive Sentonce and Judgment they be justly con∣victed, the which Sentence the Party grieved shall produce in Consistory, who shall let him understand the Liberty the Word of God allows in such cases: But by reason of the difficulty of the times the Ministers of this Kingdom are
advised not to re-marry the Parties who are at liberty to provide themselves elsewhere; and as for the Party that has transgressed, great deliberation and care shall be used before he be restor'd to Liberty.
Those which accommodate the Cannons, to the times, and which judge of the Discipline of the Antient Christians by that which they follow at present, do think that 'twas never permitted in the Church that those should marry any other Person who were sepa∣rated for Adultery; Nevertheless with the least heed that is taken in reading what remains to us of the Writings of Ecclesiastical Antiquity, it may therein be observ'd, that for several Ages the Liberty of re-mar∣rying was granted to those whose Marriage had been dissolved for Adultery. I should be over-tedious to re∣late all I could alleage for Establishing this Truth; I shall therefore content my self to prove it by some for∣mal and positive Testimonies which shall be above the reach of any contentious Spirits to controul.
To do it with the better method, First of all, 'twill be necessary to transcribe two passages of the Gospel, where our Saviour Jesus Christ has fully explain'd him∣self on this matter, The First is in the Fifth chap. of St. Matth, ver. 31, 32. It hath been also said, Whosoever shall put away his Wife let him give her a Writing of Divorcement: 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. These words as every one sees, teach us two things, one, that there's nothing but Adultery which is a lawful cause of brea∣king of Marriage; and the other, that here is to be an intire Separation, both from Bed, and as to Obli∣gation.
The Second is in the 19th chap. of the same Gospel, verse 3, &c. The Pharisees also came unto him, temp∣ting him, and saying unto him, Is it lawful for a man to put away his Wife for every cause, and he answered and said unto them, Have you not read that he which made them, made them at the beginning Male and Female, and said, For this cause shall a man leave father and mo∣ther and shall cleave to his Wife, and they twain shall be one flesh, wherefore they are no more twain but one flesh; What therefore God has joyned together, let no man put asunder. They say unto him, Why did Moses then com∣mand to give a writing of divorcement, and to put her away: He saith unto them, Moses because of the hardness of your hearts suffer'd you to put away your Wifes, but from the beginning it was not so. And I say unto you, whosoever shall put away his wife except it be for fornication, and shall marry another, committeth Adultery: And who∣soever marryeth her which is put away, doth commit Adul∣tery. As the Pharisees in their demand understood a total Separation, it must not also be doubted but Jesus Christ meant it so also in the Answer he made them; In effect, amongst the Jews the term to repudiate compre∣hends an intire rupture, with power to re-marry again; Therefore in the Antient formulary of Divorces amongst the Jews, the Husband spake thus to the Wife which he put away, I send thee going, and repudiate thee, to the end thou mayest be at liberty to marry whom thou wilt.
Let us now see what the Witnesses do depose which I have ingaged to produce for establishing the matter in dispute. I'le begin by Chromatius Bishop of Aquilea, one of the Holiest and most Learned Prelates of his time, that is to say of the Fourth Century, and the be∣ginning of the Fifth. This Learned Writer Interpre∣ting the two verses of the Fifth chap. of St. Matthew
above transcrib'd, speaks in this manner; Let them know how great the crime of condemnation is which those do incur in the sight of God, * 1.56 who being overcome with the unbridled pleasure of Lust, and without cause of Adultery, cast off their Wifes to pass on to another Marriage. It appears by the reasoning of Chromatius, that if they cast them off for Adultery, they were permitted to re-marry, and ha∣ving shewn that though the Laws of Men suffer'd to repudiate ones Wife for other cause than Adultery, those which did it were nevertheless inexcusable, but their sins was so much the greater, that they preferred the Laws of Men before the Law of God; After this I say, he adds, As it is not permitted to cast off a woman that lives chastly and honestly; so also 'tis permitted to re∣pudiate an Adulteress, because such a one renders her self un∣worthy of her Husbands Company, which in sinning against her own Body, had the boldness to defile the Temple of God.
The Deacon Hillary, a Writer of the Fourth Centu∣ry, in his Commentaries on St. Pauls Epistles, in the Third Volume of St. Ambrose his Works. Hillary Ex∣pounding these words of the 11th verse of the 7th chap. of the ••. Ep. to the Cor. * 1.57 Neither let the Woman forsake her Husband, he thus explains himself, it must be under∣stood, except it be for the cause of Adultery, because it is permitted for the Husband to marry, after having repudia∣ted his Wife for cause of Adultery.
St. Epiphanius is full in the case, seeing he expresses himself in this manner; Him who could not be con∣tent with one Wife, whether she dyed, or that he put her away for Adultery, Fornication, or some other Crime, if he joyn himself to another Wife, or if a Wo∣man for the same cause takes a second Husband, the Word of God condemns them not, neither deprives them
of the Communion of the Church nor of Eternal Life; but it bears with them for infirmity sake, not that he should have two Wifes at once, the one being yet alive, and in being, but to the end that after having left one, he may, if he will, take another lawfully. The Jesuit Petau in his Notes on the words of St. * 1.58 Epiphanius does acknowledge this was the Opinion of this Antient Do∣ctor, but he adds, That if at that time it was suffer'd to have it, because the Church had not yet determin'd any thing in this matter, it is not permitted at this time, after the decision of the Council of Trent, * 1.59 never∣theless he owns this Decree of Trent is not agreeable to some of those cited by Gratian, causa 32. quaest. 7. and also that Cardinal Cajetan, and some other Doctors of his Communion have followed an Opinion contrary to the definition of the Fathers of Trent; that is to say, That they believed that 'tis permitted to a Christian to put away his Wife for Adultery, and to marry another; in effect, not only Cajetan on the 19th chap. of St. Matth. but also Ambrose Catharine in the Fifth Book of his An∣notations, and Erasmus on the 7th chap. of the 1 Ep. to the Corinth. have been of this Judgment.
Auitus Bishop of Vienna at the end of the Fifth Cen∣tury, and beginning of the Sixth, sufficiently manifests that in his time, Divorcement was made for Adultery, with liberty to re-marry, * 1.60 observing in one of his Let∣ters, That 'tis for that cause alone God permits a man to separate from his wife: Upon which Father Sirmond who has Published the Works of Auilus, makes this ob∣servation; It from hence appears, that in that time it was believed in France, that the Husband might by the per∣mission of Jesus Christ, leave his Wife in case of Adultery, and marry another, Which he confirms by a Cannon of a Synod of Vannes, which I will cite anon.
Loup Abbot of Ferriers in Gattinois was in the Ninth Century of the same Opinion with Auitus, * 1.61 for he says as well as him, that 'tis only Fornication can dis∣solve Marriage, to which Monsieur Baluze, who com∣pleated the last Edition with Learned Notes, applyes also the Jesuit Sirmond's Observation which I but now mention'd.
Isaac Bishop of Langres, in the Third Title of his Cannons which treat of Adulterys, saith plainly, chap. 1. That the Husband whose Wife is an Adulteress, has power to take another if he please: This Prelate wrote and liv'd in the Ninth Century.
I now come to the Councils whose Authority may contribute to the Establishment of the matter I examin, and I begin with the First Council of Arles, which the Emperour Constantine assembled in the Year 314, a Council famous for the Decrees there made, and for the number of Bishops which were there present, for there was 600, if several Writers may be credited. In effect, there is in the Collection of Letters of Ireland by Bishop Ʋsher, a Letter of Cummin a Priest, to the Abbot Seguinus touching the keeping Easter, * 1.62 wherein he wrote to him above a 1000 years ago. That the Coun∣cil of Arles composed of 600 Bishops, confirm'd in the First Cannon what had been concluded upon for the observing of Easter, that is to say, that it should be Celebrated all over the World at one time, and one day: Ado Bishop of Vienna, in the Ninth Century, writes in the Sixth Age of his Chronicle, That in the time that Marin was Bi∣shop of Arles, there met a Council of 600 Bishops In the 10th Spicilegium of Dom Luke D' Achery, and in the Additions, there is to be seen an observation touching Synods, which was taken from an Antient Collection writ above 800 years ago, wherein mention is made
of the Council we speak of, * 1.63 and of the number of 600 Bishops there present; and apparently it was in refe∣rence to this great number of Prelates, * 1.64 that the Fa∣thers of the Second Council assembled in the same City in the year 542, said in the Eighteenth Cannon, That the first was assembled from all parts of the World.
However it be, the Tenth Cannon of the First Coun∣cil which concerns the business we treat of, is expressed in these terms: As to young Men that are Believers, which surprize their Wifes in Adultery, and who are forbidden to marry others, It has seem'd good to us that they should be advis'd as much as may be; not to marry again during their Wifes life time although Adulteresses. I gather two things from this Cannon, First, Before the holding this Council, there were those which prohibited them which left their Wifes for Adultery to marry again. Secondly, That the Fathers of the Council to the num∣ber of 600, amongst which there are Two Priests and Two Deacons of the Church of Rome, which held the place of Silvester its Bishop; these Prelates having ma∣turely examined the business, changed the Prohibition into an Advice which they desired might be followed, but no farther than Mans weakness could bear, which shews that they did not believe as now a days in the Romish Communion, That the Band of Marriage is in∣dissolvable, though Adultery should intervene.
In the year of our Lord 465 there was held a Coun∣cil at Vannes in Brittany, see here its Second Cannon. As for those who forsake their Wifes, * 1.65 unless it be in case of Adultery, as is expressed in the Gospel, and do Marry others without having proved the Adultery, we ordain they shall be deprived of the Lords Supper, that is to say Ex∣communicated, lest through our remissness Sins unpunished may incline others to licentiousness. It appears by this
Cannon, that when the Adultery was proved, it was permitted to conclude another Marriage; it was so 'twas understood by Father Sirmond on the Letter of Auitus above-mentioned, wherein he was followed by his Nephew Mr. De la Lande Treasurer, of the Church of St. Framburg of Senlis; for in the Supplement of French Councils, * 1.66 he explains this Cannon in the same manner as I have explained it, and this ought not to be regarded as a private interpretation, seeing this Supplement was approved by the Clergy of France assembled at Paris in the years 1655, and 56.
The Synod of Agde in Languedoc in the year 506, * 1.67 marches in the same steps of that of Vannes, in the 25th Cannon, which Excommunicate those which put away their Wifes to marry themselves to others, before they represent to the Bishops of the Province the causes of their Separation, and before their Wifes have been condemn'd, that is for Adultery; for when they were once convicted, Husbands were permitted to Marry others; it is what is lawfully inferr'd from this Cannon.
Theodore Arch-Bishop of Canterbury held a Synod in the year 670, as Beda writes in his Ecclesiastical History of England, wherein he made these Cannons relating to Marriage. * 1.68 Let no Man forsake his Wife unless it be for Fornication, as the Gospel does direct: If any one puts away his Wife whom he has lawfully marryed, let him not marry another; if he will be a good Christian, but let him continue as he is, or let him be reconcil'd to his own Wife: That is, If he puts her away for any other cause than for Adultery; And it can't be question'd but this is the true meaning of the words of Theodore, especially if one considers that in Dom Luke D' Achery's Ninth Spi∣cilegium, There are a certain number of Cannons chosen
out of all those of the said Theodores, the 116th of which formally contains this Decree, * 1.69 It is permitted to him whose Wife has committed Adultery, to put her away, and to take another.
Gratian attributes this Decree to Pope Zachary who liv'd in the Eighth Century; * 1.70 You have layn with your Wifes Sister, if it be so, you cannot have to Wife neither the one nor the other; but as for her that was your Wife, if she consented not to this crime, and that she cannot con∣tain, she may marry in the Lord to whom she thinks sit. The Antient Copies, Manuscripts and Old Editions of Gratian produce this Decree, as being Pope Zachary's; yet there are Compilers of Decrees which have cited it as having taken it out of the Roman Penitential; * 1.71 but 'tis nothing the less considerable, seeing 'twas the Peni∣tential whereof Zachary was the Compiler. The Author of the Gloss explains the last words of the Cannon in this manner, Let her marry to whom she will: He ex∣plains them in adding these others, after the Death of her Husband; As if a Woman whose Husband was Dead, was not in full liberty to re-marry, without having any permission for so doing; whereas here there is question of a Man convicted of Adultery, whereby Marriage is dissolv'd; therefore the Woman which is Innocent, and has no share in the Husbands Crime, she is permitted to re-marry; Erasmus on the 7th chap. of the 1. Ep. to the Cor. where he examins the Que∣stion, Whether Divorce is sometimes permitted amongst Christians; Erasmus reproves and condemns the Gloss I but just now cited, as being contrary to the words of the Decree, and to the intention of Pope Zachary, to whom 'tis attributed, and he does so against the Ma∣ster of Sentences, * 1.72 who had interpreted the Cannon with this addition, that is to say, after the Death of the Hus∣band.
The Council of Verberie in Vallois assembled in the year 752, * 1.73 made several Decrees, the Second where∣of is compriz'd in these terms. If any one carnally knows his Wifes Daughter, he cannot have the Mother nor Daughter, and neither she nor him cannot never after marry any others; but as for the Wife, if she will, and if she cannot contain, if after she comes to know the Husband committed Adultery with her Daughter, she has no farther carnal knowledge with him, she may marry another Person, unless she will voluntarily abstain; and in the Tenth Can∣non; If a Son has committed Adultery with the Wife of his Father, neither he nor she cannot marry, but as for the Husband, if he will, he may marry another Wife; yet it were better to abstain.
That of Compiegne made this Decree Seven years af∣ter: * 1.74 If a Man has a lawful Wife, if his Brother commits Adultery with her, let not the Brother nor Wife which have been guilty of Adultery, never marry during life; But as for the Husband of the Wife, he is at his liberty to marry again if he please: The Fourteen and Fifteen Cannons Esta∣blish also the same Discipline. The Eighth Cannon is also found in the Fifth Book of Capitularies, chap. 19. it is apparently the Eighth Cannon of the Council re∣ported by Gratian, though in something different terms. Caus. 32. q. 7. c. Quaedam; under the Name of a Decree of a certain Council.
In the Roman Collection printed at Rome Fifteen years ago by Order of Cardinal Francis Barberin, Vice-Chancellor, and Dedicated by him to Pope Alexander the Seventh. There is found Two Synods held at Rome in the Ninth Century, One under Eugenius, the Second, the other under Leo the Fourth, and by the constitutions of the one and the other, one may separate for reason of Adultery, with power to re-marry; See
here what is contained in the 36th. Cannon of the for∣mer; That it be not permitted to any one whatsoever to for∣sake his Wife, and to joyn himself to another, unless it be in case of Adultery, otherwise the offender must take the former. The same Cannon is repeated in the Second, in the same Terms, and under the same Number of 36. * 1.75
The Council of Tribur, whereof I have already spoke, on the 13th Article, confirms the same practise in the 41. Cannon, where the Fathers require, that Bishops having regard to human frailty, should comfort those who have been separated for Adultery, and which cannot con∣tain, in suffering them to re-marry after having fulfill'd the time of their pennance.
The Frier Blastares whom I have already cited seve∣ral times, * 1.76 testifies that the Greek Church used so in his time, that is, in the 14th. Century, for amongst the se∣veral reasons for dissolving Marriage, he reckons Adulte∣ry, for the which he declares Marriage may lawfully be dissolved, and contract another, after sentence of the Judges.
It was in regard to this practise of the Eastern Nations, * 1.77 that the Ambassadors of Venice caused to be read in the Council of Trent a demand they made on the Anathema of divorces, which contain'd in substance, that their Republick held the Islands, and Kingdoms of Cyprus, Candy, Corfou, Zante, and Cephalony, inhabited by Greeks, who time out of mind have been wont to put away the wife guilty of Adultery, and to Marry another, and that this Custom known to the whole Church, Was never condemned nor blamed by any Council, and therefore that the Fathers would be pleased to dispose the Cannon that treated thereof in such a way, as should not be preju∣dicial to them, to which the Council had some regard, for the Opinion of the Greeks was not there directly con∣demn'd.
It appears clearly by what has been hitherto said, that the Establishment of our Discipline, is very judicious and very conformable to the use and practise of the Ancient Church, and also to that of the present Greek Church; so that the innovation is in those which have forsaken the ways of their Fathers, and have taken a quite contrary course, in teaching that the band of Marriage is not to be broke, not even for cause of Adultery; yet I cannot think Pope Ʋrban the second was so severe, nor that he would absolutely have forbidden Marriage to a man that had left his wife after having convicted her of Adultery, and what makes me think so, is, for that in a Synod he held An: * 1.78 1093. At Troys in Poulle, it was resolved in the first Cannon, to dissolve the Marriage of two persons that were nearly related, on this condition however, That if they separated according to the Judgment of the Bishops, they were permitted to contract other Marriages, be∣cause they were young; what likelihood that Ʋrban with his Synod composed of 70 Bishops and 12 Abbots, should not have judged the band of Matrimony indissoluble in regard of those, and that he would have thought it so after the Adultery of one of the parties.
I am confident if occasion had offer'd, this Pope would not have done otherwise in regard of persons which separated by reason of Adultery, then the two Roman Synods I but now cited in the 9th. Century, and the Councils of Verbery and Compeign, in the 8th. who permitted as has been shewn, to the innocent party, to re-marry, when the band of the former Marrirge is quite broke by Adultery; certainly the Fathers of these two Councils intended not to forbid Marriage to those which Adultery had separated, seeing they allowed separation for things of much less moment than is that of Adultery, and that at the same time they grant power and liberty to
re-marry anew, for Example, the 3d. * 1.79 Cannon of the Synod of Verbery is conceiv'd in these terms; If a Priest has Mar∣ry'd his Neece, let him leave her, and be deposed; If another takes her to wife, let him put her away also, because 'tis a thing blame worthy that another Man should marry her which was put away by a Priest; but if the man cannot contain, let him marry some other.
The 5th. cannon contains this Decree; If a Woman has con∣triv'd the Death of her Husband with other Men, and that the Husband in his own defence kills him that comes to murder him, and that he can prove it; he may repudiate his Wife, and marry another if he please. The 9th. permits him that is forced to quit his Country to go to live in another, and that his Wife will not follow him, it permits him to Marry another.
In the 6th. it is permitted to a free Man that shall have Marry'd a slave, thinking her to be of a free condition, he is permitted to take another, if the first be put again under servitude, and that she cannot be ransomed, the same power is given to a free woman that shall marry a slave, not knowing he was so, unless he had been forc∣ed by famine to sell himself by consent of his Wife, and that the price of the sale of the Husband had served to preserve the Wife from Want and perishing by famine; besides this, the Woman might put away her Husband, and Marry another, if she cannot contain.
This last Cannon of the Synod of Verbery in the 5th. * 1.80 of that of Compeign, where we Read these words; If a free man has taken in Marriage a woman whom he thought to be free, and afterwards he found she was not, let him put her away if he will, and let him Mar∣ry another.
The 4th. of the same Council of Compeign makes this or∣dinance; If a man has marri'd his Wises Daughter being
of a free state, to a free man, or to a slave, or to a Church∣man, and that he married her against her will, and against the will of her Mother, and her relations, if she will not have him for a Husband, and that she leave him, her Relations may give her another, or if she herself has Married another, after having left the first, let them not be separated.
In the 13th. we Read this, if any one has left his wife; and in consideration of Piety and Religion, he has given her liberty to enter into a Monastery; or that for the Love of God, he has suffer'd her to take the vail out of a Mo∣nastery; let this Man take a lawful wife, and let the Wo∣man do the same on the like occasion.
The 16th. is contained in these words, if a Leprous man has a Wife that is clean and sound, and that he will suffer her to marry another, let the woman marry ano∣ther if she please, * 1.81 and let the Husband do the same. Pope Stephen the second prescribed near hand the same thing three years before, from whence may be gathered, that according to all appearance he would have made no difficulty to approve the re-marrying of those whom A∣dultery had separated.
Nevertheless I could produce several other proofs for Establishing the matter I Examine, if I feared not to be to tedious, I will therefore end this enquiry by two remarks; the first concerns Ecclesiastical Writers which teach, that it is lawful to separate for Adultery, as Ter∣tullian who thus explains himself; * 1.82 If God has prohibited under such condition to put away ones Wife, he has not abso∣lutely forbidden it; and what he has not absolutely forbidden, be his permitted. Lactantius saith, That he is an Adulte∣rer that forsakes his Wife, * 1.83 to marry another, if he leaves her for any other cause then for the Sin of Adultery, The Law saith Gregory Nazianzen gives the Bill of Divorce for all
things; but as for Jesus Christ he gives it not for all things, but he only permits to separate from the shameless and adul∣terous woman: This separation if we follow the Explica∣tion of Father Sirmond on the 46th. Letter of Auctus, imports the Power of Marrying another, to which a∣mounts also what is said by Theophilact on the 5th. chap. of St. Matth: That he that put away his Wife for just cause, That is to say for Adultery, is not subject to any condemnation: I say the same of all those which have ex∣plained themselves near hand in the same manner, as St. Basil in his first Cannonical Epistle to Amphilochius, Can. 9th. and some other.
In my second Remark I produce the Testimonies of two famous Doctors of the Greek Church, which testifie Marriage is entirely dissolved by Adultery, and that the band is quite broke, the first is of St. * 1.84 Chrysostome who in his Homilies on the 7th. chap. of the first Epistle to the Cor. teaches positively, That the Husband which puts a∣way an Adulterous Wife is not culpable; And if you ask him the Reason, he'll tell you it is, The Marriage is already dissolved, and that after the fornication, the the Husband is no longer a Husband.
The other Witness is Theodoret, who Treating of this business in his Therapeutique, or manner of healing the affections of the Greeks, makes this Reflection, * 1.85 worthy himself: The Authour of Nature in Creating human Na∣ture made at first one Man and one Woman, and forbid to dissolve Marriage, having not suffer'd to dissolve it, but for one only cause which indeed doth break the band: And having instanced the Words of the Gospel where Je∣sus Christ suffers to separate for Adultery, and to Mar∣ry again, He adds. * 1.86 By these Words Jesus Christ com∣mands to bear all other faults in a Woman, her prating, Drun∣kenness, Evil speaking; but if she violates the Lawes of Mar∣riage,
then He commands to dissolve and break the Bands: Nothing can be desir'd more positive nor more clear for proving the matter I treat of, therefore I conclude, in observing, that St. Chrysostom and Theodoret's Deposi∣tions do no less favour the Article of our Deposition, than the Testimonies I produced at first, as well of Ecclesiastical Writers, as of Councils, by all which I have made clearly appear, that in the Ancient Church they were perswaded, as they are at this present amongst the Greeks, and amongst the Protestants, that Jesus Christ suffers Christians to separate from their Wifes for the reason of Adultery, and to marry others.
If it should happen that after Contracts and Promises made, and before the accomplishing of Marriage, the Bride is found to have committed fornication, before or after the said promises, and that 'twas unknown to him that had promised her Marriage, after definitive sentence as abovesaid, the Consistory may proceed to a new Marriage; the Bride shall have the same liberty if it be found that the Bride∣groom has been guilty of fornication before the said promises.
There is in the third Volume of the Councils of France, a Letter of Pope John the 8th. to Walenus Bishop of Metz, * 1.87 by which he lets him understand that he is to blame against the Authority of the Cannons to go about to constrain a Man to Marry his Sweet-heart al∣though she be found with child by some body else before consummation of the Marriage.
The Wifes whose Husbands shall be absent a long while in Voyages, for Merchants or otherwise, shall have recourse to the Magistrate, if they desire to be re-marry'd.
St. * 1.88 Basil in his 2 Canonical Epistle puts in the Number of Adulterous Women those which re-marry before they are certain of the death of their absent Husbands, yet in such a way as that he will have the Wifes of those that are in the Wars treated something more favourably than others, because a long absence makes it more be believ'd they are dead, than others which are absent for some o∣ther Subject.
Pope Leo the first Writing to Nicetas Bishop of A∣quilea touching Women that have re-marry'd after a long absence of their Husbands who had been carry'd away Captives, he Orders that at their return, * 1.89 they may be permitted to reassume their Wifes, who to this purpose are to separate from their second Husband, it was also the Opinion of Innocent I. Ep. 9.
Theodore Archbishop of Canterbury whom I cited on the 29th. Article, * 1.90 suffers a Lay man whose Wife has ab∣sented, to marry another at the expiration of seven years, with consent of the Bishop, and at the End of one year, if she has been taken away Captive by force.
The 83 Caunon of the 6 universal Council, * 1.91 follows near hand the Discipline of St. Basil, and partly that of Leo the First.
The 9th. of that of Verbery, which I have mention'd several times, suffers a Man who is forced to change
Countries, and whose Wife will not follow him, it suffers him to marry another, if he cannot contain, Tom. 2. Conc. Gall. pag. 3.
Photius in the 13 Title, Can. 2. of his Nomocanon, declares the Time and the Manner that the Wife of the absent Husband is to observe before she re-marries.
The Friar Blastares follows the steps of Photius, and when the absence of the Husband or the Wife is caused by Captivity, he determins that if in five years no news be heard, the Marriage is void.
As for the Wifes of Priests and Friers, which revolt and return to Idolatry, singing Mass, or returning to their Cloy∣sters from whence they came out before, they are advertis'd to inhabit no longer with their said Husbands during their Apostasie, not to load Marriage with blame and ignominy, and also shall not marry with others, until the first marriage be dissolv'd by the Magistrate.
To this Article may be referr'd the 44 Cannon of the 2d. Cannonical Epistle of St. Basil, with the interpreta∣tions of Balsamon, and Zonaras, the 13th. Cannon of the first Council of Orleans of the year 511. and the 3d. of that of Verbery, assembled Anno 752. for in all these places, * 1.92 something is ordain'd which comes very nigh the Establishment of our Discipline.
Tom. 3. p. 33.
Tom. 1. Conc. Gall. p. 265 Ib. p. 316 pag. 5••4.
pag. 391.
Tom. 9. Conc. p. 411.
pag. 392.
pag. 823.
Tom. 11. Spicil. p. 205.
Tom. 9. Conc. p 633.
Pseudo∣isid. pag. 676.
Tom. 2. conc. Gal. p. 5.
Ibid. p. 15
Ibid. p. 43
Tom. 8. Spicil. p. 113. ad 118.
Tom. 9. conc. pag. 412.
Lib. 5. Cod. Just. tit. 4. cap. 26.
Pag. 68, 59. Lett. ••. c. 9.
Cap. 27. q. 2.
Tom. 7. conc. pag. 692.
cap. 27. q. 2.
Ep. 1. ad Bonifac. Tom. 5. Conc. pag. 497.
To. 5. p. 306, 307.
Collect. Rom. p. 2. pag. 46. & 94.
Tom. 2. Conc. Gall. p. 5.
Can. 39. Tom. 3. & in Pan∣dect. Graec.
Tom. 2. pag. 97.
Tom. 7. Conc. c. 71. p. 157
Tom. 2. conc. Gall. c. 17. pag. 4.
Ibid. c. 2. pag. 14.
Ep. 9. ad Bonif. c. 2. l. 1. conc. Gall. pag. 519.
Tom. 3. conc. Gall. pag. 673.
Tit. 1 de Sponsal. cap. 27.
Tom. 7. conc. cap. 51. p. 818
pag. 217, 221, 222.
Ib. p. 255. Tom. 9. conc. pag. 411. Decret. de refor. Matrim. cap. 1.
Can. 2. pag. 801.
Tom. 3. conc. Gal. pag. 116. Tom. 7. conc. pag. 818.
Tom. 9. conc, pag. 590.
Tom. 1. conc. pag. 234.
Let. G. c. 12.
Tom. 1. conc. Gall. pag. 231. 242.
Tom. 1 p 239, 240.
Tom. 2. p. 1071.
pag. 232.
Lic. G. c. 4.
Tom. 3. Conc. Gall. cap. 41. p 113 Tom. 2. Bibl. Jur. Can. Just. p. 1075. ad 1078. Litt. B. c. 8. & G. c. 4.
Tom. 1. Conc. & Ann. 358 pag. 728. Tom. 3.
pag. 286.
Tom. 2. p. 681. Par. 1614
pag. 817.
Tom. 7. pag. 33.
Litt. G. c. 4. pag. 62.
Tom. 9. Conc. Dec. 27. pag. 500. Ibid. pag. 684.
Tom. 9. Conc. pag. 412.
Ibid. p. 480, 481, 590.
Tom. 6•• p. 358.
Tom. 2. Biol. Sal. p. 168.
pag. 365.
Tom. 2. p. 255.
Sess. 24. cap. 7.
Ep. 49. p. 110.
Ep. 29. pag. 54.
Ep. 11. p. 28.
Tom 10. p 633.
Tom. 1. Conc. Gall. p. 105. Tom. 1. Conc. Gall. p. 6.
Tom. 1. Gall. p. 138.
pag. 349.
Tom. 1. Conc. Gall. p. 166.
Lib. 4. c. 5.
pag. 62.
ca. 32. c. 7. Conc. Concn∣bai••ii.
Binchard. lib. 19. c. 5. Enq.
Lib. 4. dist. 34.
Tom. 2. Conc. Gall. p. 2.
Ib. Can. 8. p. 43.
Ibid. p••g. 92.
Let. G. c. 13. pag. 73, 74.
Hist. of the Coun∣cil of Trent by P. Saovo. lib. 8. pag. 920, 921.
Apud Marcam de conc. li. 4. c. 14. pag. 282.
Tom. 1. conc. Gal. pag. 3.
Ubi supra 42, 43, 44
Ib. can. 2.9.
Contr. Marc. l. 4. c. 34.
Lib. 6. Divin. In∣stit. orat. 31. p. 501
Hom. 19. pag. 484, 485.
Serm. 9. Legib. l. 4 pag. 619.
Ib. p. 620.
An. 879. pag. 491.
Can. 31.36.4.3. pag. 32.
Ep. 79. c. 1, 2, 3, 4. pag, 148, 149.
Can. 113.4. q. Spi∣cil. p. 62.
Tom. 5. conc. pag. 347.
Tom. 1. conc. Gall. pag. 150. & Tom. 2. pag. 2.