An epilogue to the tragedy of the Church of England being a necessary consideration and brief resolution of the chief controversies in religion that divide the western church : occasioned by the present calamity of the Church of England : in three books ... / by Herbert Thorndike.

CHAP. XIV. Scripture alleged to prove the bond of Mariage insoluble in case of adultery, unef∣fectuall. S. Paul and our Lord speak both to one purpose, according to S. Je∣rome, and S. Austine. The contrary opinion more reasonable, and more general in the Church. Why the Church may restrain the innocent party from marying again. The Imperial Lawes could never be of force to void the Power of the Church. Evidence for it.

SOme texts are alleged to prove the bond of Mariage undissoluble, which to me, I confesse, do not seem to create any maner of consequence. S. Paul saith, Rom. VII. 2. The wife that is under a Husband, is tied to her Husband li∣ving, by the Law: But if her Husband dye, she is clear of her Husband. So, li∣ving her Husband, she shall be stiled an adu••teress if she become another husbands: But if her Husband dye, she is free from the Law, so as to be no adulteress if she be∣come another Husbands. Where, say they, it is plain, that she who maries be∣fore her former Husband is dead, is an adulteress. As also in 1 Cor. VII. 39. The wife is tied by the Law as long as her Huband lives; but if her Husband fall asleep, she is free to mary whom she please, onely in the Lord. And yet it is mani∣fest, that S. Paul, in the first place, speaks according to the Law, in the second, according to Christianity; and, that there is no question, that, under the Law, mariage might be dissolved. Therefore, the words of S. Paul are not superfici∣ally to be considered, when he saith, Rom. VII. 1, Know ye not brethren, (For, I speak to those that know the Law) 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉; For the meaning cannot be, that the Law hath power of a man, as long as the man lives that the Law hath power upon; but, as long as the man lives who hath power over him by the La••; As it is evident, by the inference; For the wife living, is tied by the Law to her Husband; but if her Husband die, she is clear of her Husband. And the compari••on fro•• which S. Paul argues holds thus; As a wife is no longer tied to her Husband, by the power which the Law gives him, when he is dead; so are not Christi••ns ••••ed to God by the Power, w••••••h the Law gives him, when it is voided by the death of Christ; but, by the new bond which the Covenant o•• Gr••ce knitteth. Now, by the Law, the bond of Mari∣age is not to be dissolved, but by the will of the Husb••nd; but, if the Hus∣band will, it is dissolved by a Bill of divorce. And therefore, that exception is necessarily to be understood in S. Pauls words. Which being understood, it will be ridiculous to infer••e, that ther••fore the mariage of Christians is indis∣soluble. Though diverse o•• t•••• Fathers, it is true, h••ve thought it a good infe∣rence. But among Christians, when S. Paul sayes; the wife is tied by the Law, as long as her Husband lives; his intent can require no more, then, that she is free, when he is dead, to mary again; Not, that she can no way be free while he is alive. Again, Eph, V. 28-32. He that loveth his wife loveth himselfe. For never did any man hate his own flesh, but feed and cherish it, as our Lord his Church. For we are members of his body, of his flesh, and of his bones. Therefore shall a man leave Father and Mother, and cleave to his wife, and they two shall be∣come one flesh. This mystery is great, but I mean in Christ, and in the Church. The mariage of Adam with Eve, was intended by God for a figure and pro∣phesie of the incarnation of Christ, and his spiritual mariage with the Church,

by virtue of it; as the Scripture, wheresoever it speaks of the first and second Adam, declareth. Therefore, as I said, their mariage was an indissoluble union of one with one, as the mariage of Christians, which reviveth it. Be the mari∣age of Christians then a Sacrament, as much as any man would have it to be; be it a commemoration (if Adams was a prediction) of the incarnation of Christ, and of his mariage with the Church; Let it contain a promise of Grace to them that exercise it as Christians should do; it is therefore indissoluble in the point of right, I confesse; that is to say, it is the profession of an obliga∣tion upon the parties, to hold it indissoluble. But, is it therefore indissoluble in point of fact? May not the obligation so professed be transgressed? And, is not mariage a civill contract, even among Pagans and Infidels, and that by Gods appointment? And, may not the Law which God ••••ath restrained the mariage of Christians to presuppose the conditions of a civill contract? And are not civill contracts void? when one party transgresseth the condition on which they are made? Or, cannot mariage signifie the mariage between Christ and his Church; cannot the observation of it oblige God to give grace, unlesse we understand all such conditions thereby to be extinguished? The union of the word with our flesh, the union of Christ with his Church, depends one∣ly upon that effectuall Grace which himself purposed from everlasting, because, as I said, upon supposition of our perseverance. The union of Wife and Hus∣band signifies it no lesse, though, the obligation being transgressed, it may be∣come void. But, how shall marying as a Christian should mary be the means to obtain Grace unlesse, as well the union, as that promise may be forfeited, by transgressing the condition upon which it is made?

The cheife difficulty then lies in the words of our Lord, Mat. V. 30. 31. XIX. 3-9. in which, I must, in the first place, consider, that there are diverse things observable in them, to show that our Lord, though he declared not openly, that the Gentiles should imbrace Christianity, and the Jews refuse it, yet ne∣verthelesse propounds it so, that he must be understood to intend it for the Gen∣tiles so converted, as well as for the Jews. That of Origen in the first place. For, the Law appointing death for the punishment of adultery, what need the exception of adultery to the Jews, among whom divorce for adultery was death? Secondly, his words in S. Mark. X. 11. 12. Who so ••utteth away his wife and mariet•• another committeth adultery against her, and, if a wife put away her Husband and mary another, she committeth adultery. For, by the Jews Law, though the Husband might put away his wife, yet the wife could not put away her Husband. And, though Josephus report, that Herods sister Salome sent her Husband a Bill of divorce, yet he reports it as that which never was done a∣fore; and therefore, cannot be thought to have come to a custome in our Lords ••ime. Thirdly, how could our Lord say, according to the Jews Law, that he who maried a woman divorced committeth adultery, when as, what hindred a man then to mary a divorced wife, out of meer charity, to keep her from com∣mitting adultery? Lastly, if we consider S. Pauls wordes, whereby he teacheth, as I have showed, that, the wife having the same interesse in the Husband, as the Husband in the wife, by the Christian Law, the wife can no more leave her Husband, then the Husband the wife, 1 Cor. VII. 1-5. I. 11. it will appear, that his Doctrine, extending to the condition of man and wife by the then Ro∣mane Law, is derived, as it must needs be derived, from this sense of his Masters. Seeing then, that divorce, not onely among the Jews, but among ••he Romanes, was alwayes understood to dissolve the bond of Mariage; what appearance can there be, that our Lord, when he sayeth; He that putteth away his wife, unlesse for adultery, and marieth another, committeth adultery, and, he that marieth her who is put away committeth adultery; intendeth not to extend the exception to marying again, as well as to putting away? And therefore, that he who putteth away for adultery, & she who is not put away for adultery may mary again? For, if those whom he spoke to could understand nothing by divorce, but that which they saw, and the divorce which they saw, or heard of, inabled all parties to mary again, then, that divorce which the exception of fornication allows by our

Lords law, understanding that exception, inables to mary again. Two reasons are opposed from our Lords words. First, in S. Mark X. 12. S. Luke XVI. 18. the exception is not expressed, and yet it is said; He that puts away his wife and maries another, commits adultery. To which it is answered; That, the Gospels are, as S. Justine the Martyr calls them, remembrances of the sayings and doings of our Lord, the effect whereof was delivered to, and received by them who were baptized, as the Law of Christianity. And that therefore, in recording them, it was thought enough, to remember the heads of those things which were undertaken to be believed and observed. That therefore, all that undertake to expound the four Gospels, do use to adde, whatsoever any of them hath more then the one which he hath in hand, to make up his sense. In fine therefore, that in this point, the sense of our Lord is not to be measured by that which S. Mark and S. Luke hath lesse, but that which S. Matthew hath more. And therefore, that, when our Lord saith, He that puts away his wife, and maries again, commits adultery: And he that maries her that is put away, com∣mits adultery; He is to be understood with this exception, unlesse for adul∣tery. It is objected secondly; That by this account, she that is put away for a∣dultery may mary again, and neither her selfe, no•• he that maries her, be charge∣able with adultery; which were a gross inconvenience, that, by the Law of our Lord, a woman, by committing adultery, (or man in like case) should ad∣vantage himselfe, to mary again with a good conscience. For if it be true; He that puts away but for adultery, and maries again; and, he that maries her who is put away but for adultery, commits adultery; then will it follow, that, he who puts away his wife for adultery, and maries another, and he that ma∣ries her that is so put away, commits no adultery. To which I answer, that it follows not, that our Lord so saying, should mean this consequence; But ra∣ther, that he who maries her that is put away for adultery, commits adultery much more: Though he who puts her away is no cause of it, neither charge∣able with adultery for marying again. For, if the Husband be chargeable with adultery, when the wife maries again, being not put away for adultery; why is he chargeable with it that put her away for adultery? If, because he maries a∣gain, not putting his wife away for adultery; putting her away for adultery, why is he chargeable with it? The difficulty will be; Then is the knot of wedlock tied to the one party, and loose to the other? which seems a knot more indissoluble then that of wedlock; but is indeed none at all, if we distin∣guish between the metaphor of a knot tied, and the obligation signified by it. For, though the act of consent to the contract of wedlock, is the act of two parties, whereof a third, that is God, is depositary, to discharge the innocent, and to charge the guilty; yet, the bond or obligation which is contracted by it is answerable severally, by each party, in the judgement of God. And, is there the same reason, that God should call him to account for adultery, who thinks himselfe free of that contract which he stood to till his party transgressed it, as her that gave him cause to think himselfe free by transgressing it?

The difficulty then rests in the meaning of S. Paul, when he ch••rgeth the wife not to depart from her Husband: If she do, to abid•• unmaried, or to be re∣conciled to her Husband. And the Husband, not to put away his wife, 1 Cor. VII. 12. And that having before charged maried people not to part, even for devotion, but for a time, for fear of temptation by concupiscense. For, can it then be imagined, that he allows them to part upon any occasion, but that of adultery? Therefore, those that are parted for adultery he forbids to marry a∣gain. And these are the Texts that have moved S. Jerome Epist. XLVII. to be of this mind. But S. Austine further, expounding the Sermon in the mount upon this supposition, (as he himselfe professes in the beginning of his books de adultrinis conjugiis, written expresse to maintain it) and desiring to show how our Lords Law injoyns the same with his Apostles; imagines, that our Lord might mean spirituall fornication or adultery, according to which the Psalme saies, Thou hast destroyed all that commit fornication against thee; when he gave it. Which sense compriseth all sinne, that carieth with it a construction of de∣parting

from our Covenant with God, both in truth, and according to S. Au∣stine, de Sermone domini in monte, I. 16. Whereupon the Mileritane Canon, XVII. speaks thus; Placuit ut, secundum Evangelicam & Apostolicam disci∣plinam, ue{que} dimissus ab uxore, ne{que} dimissa à marito alteri conjungantur; sed ita maneant, au•• sibi reconcilientur: Quod si contempserint, ad poenitentiam redigantur; In qua causà legem I••perialem petendam promulgari. It seemed good, that, ac∣cording to the discipline of the Gospel and the Apostles, neither he that is dimissed by his wife, nor she that is dimissed by her husband, be wedded to another; but re∣main so, or be reconciled to one another; which if they neglect, that they be put to Pe∣nance; and that request be made for an Imperial Law to be published in the case. Where, alleging the Gospel, and S. Paul both, it is plain, the Canon proceeds upon the opinion of S. Austine; For, he was at this Council, and, in all proba∣bility, had the penning of the Canons.

That which moved them to be of this opinion, I confesse moves me to be a∣gainst it. I cannot be perswaded that S. Paul in this place, and our Lord in the Gospel, speak both to one and the same purpose. All subjects of the Ro∣mane Empire, when S. Paul writ, had power to leave their wives or their hus∣bands at pleasure, without giving the Law account. But, supposing them Chri∣stians, were they not to give God account? were they not to give the Church account? Certainly if they maried again, they must give the Church account, because our Lord hath said, He that leaveth his wife but for adultery, and marieth again, committeth adultery; For of adultery, account is to be given the Church. And truly, who parts with a wife, it is great odds, does it out of a desire to ma∣ry another; which, all the Church agrees, he cannot do, unlesse she be an adul∣teresse, part of it sayes further, though she be he cannot do it. But, if he mary not another, but part with his wife, he must give God account, whether he be bound to give the Church account or not. And this account S. Paul instructs how to give. He will not have Christians to part bed and bord, much less to repu∣diate, to part families, to send one another a way with that which they brought; but, if they will needs try how good it is living unmarried, he would have them know, that they could not mary elsewhere, because of our Lords Law, which, in case of fornication, he silently excepteth. For, to me it seemeth manifest, that our Lord, in case of fornication, provideth for the reparation of the party wronged, whose bed and issue is concerned; restraining the divorce which the law allowed, onely to the transgression of mariage in••cted by the institution of Paradise, when two continue not one flesh. But S. Paul, for the conscience of particular Christians, upon what terms they may or ought to forbear ••ohabita∣tion; to wit, so as they mary not again: Which is exhortation enough, to set aside animosities, and return to bed and bord again. S. Austine, and Venerable Bede upon the Gospel, following him, confesse, that, according to their inter∣pretation, our Lord permits to part, not for the fornication which the other party hath done, but for that which himselfe may do; To wit, which, by the company of an ill disposed yoke-fellow, he may be moved to do. So, divorce, according to this opinion, is grounded upon the precept of the Gospel; If thine eye offend thee pluck it out; and, is that which the Church of Rome at this day main∣taineth, by the XXVI Session of the Council of Trent, Can. VIII. (and that, as I think, according to S. Paul onely, that he leaves it to the Conscience of particular Christians, without interessing the Church the interest whereof, I conceive, cannot be excluded, though S. Paul, here, provide not for it) as Car∣dinall Bellarmine de Matrimoni•• I. 14. disputeth. But, in case of adultery, it never was, nor ever could seem questionable, (so as S. Paul to decide it) whi∣ther a man might so put away his wife or no; all Civill Law that then was, counting him accessory to the stain of his bed and issue that did not; And there∣upon, the ancient Canons of the Church imposing penalties upon any of the Clergy, who, being allowed to dwell with their wives, should indure an adul∣teresse. And therefore, I conclude, that S. Paul, though he allow not, either husband or wife, to part with wife or husband, as to cohabitation, without re∣nouncing the bond of wedlock, no not for the state of continence,; (as S. Au∣stine

very well argues; if not for continence, then for no other cause) yet▪ forbids not what he allows not. But, seeing such offences fall out among Christians that be maried, as are not easily discernable, where the fault of them lies; no•• allowing them to part, nor yet condemning both parties, he limits them, in case they do so, not to marry again; imposing thereby, upon the innocent party, the necessity of continence, which his innocence makes to∣lerable, and the A••ostles advise, if it proceed not to the parting of families, easily recover••ble. As for the guilty, if it prove a burthen, or a snare, he may impute it to his fault. And, as it was not necessary, that the Church should be interessed in it, so long as both parties were inabled by the Law to depart, and neither proceeded to mary again; So, the Law not allowing it, there is no mar∣vail that the Church should interpose.

Let us then see how the rest of the Church allowes the exception of adulte∣ry, to the pur••o••e of marying again. Clemens Alexandrinus, Strom. II. in fine, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. The Scripture plainly in∣acteth; Thou shal•• not a smiss thy wife but upon account of adultery: Counting it adultery to mary while the one of the parted is alive. Athen••goras, de resurrect. mortuorum, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 A Christian is to ab••de as he was born, or a•• one mariage: For, saith he, he that dis∣misseth his wife, and marieth another, committeth adultery. This necessarily concerneth no mor••, th••n marrying again upon that divorce, which the Romane Law in••led eith••r p••rty to make, without rendring a reason; and may well b••a•• the ex••eption of marying upon divorce for adultery, by the Christian Law. And the s•••••• ••xception may well be understood, in the XLVIII. C••non of the Ap••••••••••s▪ 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉▪ If a Lay-man, casting ou•• his wife, take another, or one that is put away ••y another, let him stand excommunicate. Provi••ion is made against taking to wi••e one that had been put away, for the reputation of the Clergy: For, it must needs be a s••ain to bring such a one into a mans house. If it be true that Grotius alleges out of severall passages of Tertulliane; that the Church, in his time, admitted them to mary again, who had parted with their wives for adultery, we need no more. But, though those allegations, (as not quoted, so) are no where to be ••ound; yet Tertullianes opinion is to be seen, by the plea that he makes, contra Marc. IV. 32. that our Lord abrog••teth not that di∣vorce which Moses had inacted, though he rest••ineth it; Which could not be said, if the divorce which our Lord alloweth, did not import right to mary a∣gain. Lactantius plainly signifies the same, when he sayes; Adulterum esse, qui à marito dimissam du••erit: Et eum qui, praeter crimen adulterii, uxorem dim▪ se∣rit, ut alterum du••••t; That he is an adulterer, who maries a wife put away by her husband: And that so is he, that shall put away his wife to mary another, ex∣cepting the crime of adultery. The great Council of, almost all the West, at Arles, in the businesse of the Donatists, provides, Can. X. That those who take their wives in adultery, being young Christians, be exhorted not to mary o∣thers as long as they live; leaving thereby, hope of reconcilement. Certainly, they counted it not adultery, which they only exhort not to do. The Council of Elvira, Can IX. That the wife that forsakes her husband for adultery, and maries another, shall not communicate so long as he remains alive; of the husband, nothing. By the VIII. & X. She who leaves her husband without cause, and maries another, is not to communicate, no not at the point of death. (At the date of this Council, before the act of Constantine, man or wife parted without showing cause. Without cause then, is, when that cause which the Church al∣lows, viz. adultery, is not) She that maries him, who, she knew had put a∣way his wife without cause, not till the point of death. This is the difference between committing adultery, and marying him that commits adultery by put∣ting away his wife without adultery. And, it is plain, the wife is stricter used by these Canons then the husband. The Commentaries upon S. Pauls Epistles

under S. Ambrose his name, say plainly, 1 Cor. VII. That the man may mary a∣gain, having put away his wife for adultery, not the wife having put away her husband; because the man is the head of the woman. I do not find this rea∣son sufficient. For, S. Paul maketh the interest of the wife in the husband, and that of the husband in the wife both one and the same. Nor do I find the reason sufficient which Cardinall Cajetane hath given for him, upon Mat. XIX. 9. to wit, because our Lord, saying; He that putteth away his wife, unlesse for adultery, and marieth again, committeth adultery; sayes nothing of what the woman may do in that case. For Mark X. 11. 12. he sayes as much for the wife as for the husband, not expressing the exception; Why then should I not be extended to her, when he addeth it? But I conceive, that, though, by Gods Law, the woman be restrained no more then the man, yet the Law of the Church might restrain that which Gods law restrained not; And so, though the man be onely advised not to mary again, by the Canon of Arles; yet, the woman might be put to Penance, so long as her first husband remained alive, by the Canon of Elvira. For, I see, S. Basil ad Amphil. Can, IX. confesses, that, though S. Paul makes the case of both equall, yet, custome put the wo∣man to Penance, marying upon the adultery of her husband. Some ground of difference nature it selfe inforces, in that, the man taints not the wives issue, nor brings that infamy upon her bed, as she upon his. In the mean time, whatsoever we say of that, it is manifest, they held it not adultery, for the party that parted for adultery, to mary again. And as for Fabiola, who, ha∣ving put away a notorious adulterous husband, & maried another, after the death of this second, did voluntary Penance for it; as you find in S. Jerome, Epist. XXX. It may be the Church exacted it not, because, during her second Hus∣bands time, it is not said that she communicated not; And it may be she fol∣lowed S. Jeromes opinion, which he expresseth Epist. XLVII. Some passages of S. Basil, S. Chrysostome, and Gregory Nazianze, are alleged in vain, signi∣fying onely the insolubility of mariage; which may allow the exception which the Gospel maketh, and must allow it, when we see the custome, testified by S. Basil, to the contrary. And S. Chrysostome, when S. Paul sayes of the wife, If she part—understands him; If she part upon ordinary displeasures, which he calls 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, or pusillanimities, which, the courage of a true Christian would neglect and over see. Innocent I. Pope, Epist. ad Exuperium, puts them on∣ly to Penance, that mary again, having put away wives or husbands; Not sup∣posing adultery: But Epist. IX. ad Probum Statuimus fide Catholica suffragan∣te, illud esse conjugium, quod primitus erat divina gratia fundatum: Conventum{que} secundaemulieris, priore superstite, nec divortio ejectâ nullo pacto posse esse legitimum. We decree, the Catholick faith voting for it, that to be mariage, which first was founded upon Gods grace: (that was first made according to Christianity) and that the wedding of a second wife, leaving the first, can by no means be lawful. Which exception could possibly signifie nothing, if in no case, (not of adulte∣ry) a second could be maried, while the first is alive. And in the West, Chro∣matius of Aquileia, in Mat. V. as well as in the East, Asterius Homil. an li∣ceat dimittere uxorem; the first damns him that shall mary again excepting a∣dultery. The second would have his hearers perswaded, that nothing but death or adultery dissolves mariage.

But do I therefore say, that the Church cannot forbid the innocent party to mary again? or, is bound by Gods law to allow it? All Ecclesiastical Law be∣ing nothing but the restraining of that which Gods Law hath left indefinite? And the inconveniences being both visible and horrible? I conceive, I am duly informed, that George, late Arch-bishop of Canterbury, was satisfied in the proceeding of the High Commission Court, to tie them that are divorced from marying again, upon experience of adultery designed upon collusion, to free the parties from wedlock; having been formerly tender in imposing that charge. The Greek Church may beter avoid such inconveniences, not being tied to any Law of the Land, but the tempering of the Canons remaining in the Gover∣nors of the Church. But, they that would not have the Lawes of the Church,

and the justice of the Land, became Stales and pandars to such vilanies, must either make adultery death, and so take away the dispute, or revive publick Pe∣nance, and so take away the infamy of his bed, and the taint of his issue, that shall be reconciled to an Adulteresse; or, lastly, bear with that inconvenience which the casualties of the world may oblige any man to, which is, to propose the chastity of single life, in stead of the chastity of wedlock, when the security of a mans conscience, and the offence of the Church allows it not. But though this, in regard of the intricacies of the question, and the inconveniences evident to practice, may remain in the power of the Church; yet can it ne∣ver come within the power of the Church to determine, that it is prejudiciall to the Christian faith to do so, as by Gods Law. And the Church, that erres not in prohibiting mariage upon divorce for adultery, will erre, in deter∣mining for mater of faith; that Gods law prohibites it, so long as such reasons from the Scriptures are not silenced by any Tradition of the whole Church. It is easie to see by S. Augustine, de adulterini conjugiis, II. 5-12. that pub∣lick Penance was the means to restore an adulteresse to the same reputation a∣mong Christians, which an adulteresse that turned Christian, must needs recover among Christians. And that is the reason, why the Canon of Arles orders, that young Christians be advised not to mary again, that their wives may be re∣covered of their adultery by Penance, and so their mariage re-estated. I see al∣so that Justiniane Nov. CXVII. hath taken order, that women excessive in in∣continence, be delivered to the Bishop of the City, to be put into a Monastery, there to do Penance during life. And, supposing adultery to be death, accord∣ing to Moses Law, the inconvenience ceaseth. If the Civil Law inable not the Church to avoid the scandall of this collusion, it is no marvail that the Church is constrained to impose upon the innocent, more then Gods law requires, to avoid that scandall which Gods law makes the greater inconvenience.

And, thus having showed you, that S. Austines interpretation of fornication is not true, I have, into the bargain, showed you, that it cannot serve to prove divorce upon other causes besides adultery; and so, the insolubility of mariage, excepting our Saviours exception, is as firmly proved, as the consent of the Church can prove any thing in Christianity. I know Origen argues, that poyso∣ning, killing children, robbing the house, may be as destructive to the Society of Wedlock, as Adultery; And he thereupon seems to inferre, that our Savi∣our excepts adultery onely for instance, intending all causes equally destructive to wedlock; as Grotius, who follows his sense, seems to limit it. But Origens opinion will not interrupt the Tradition of the Church, unlesse it could appear to have come into practice, sometime, in some part of the Church. Neither would it serve his turn, that would have those divorces which the secular Power allowes to extend to marying again. For Origen never intended, that his own opinion should bind; but, that it is in the power of the Church to void mariages upon other causes. For, he saith, he knew some Governours of Churches suffer a woman to mary, her former husband living, Praeter Scripturam, besides the Scripture. And that, as Moses permitted divorce, to avoid a greater mischiefe. But I may question, whether they thought that against the Scripture, which O∣rigen thought to be against the Scripture. And, in the mean time, as I do not see, what breach his report can make upon the Tradition of the Church; so it is plain, the Power of the Church, and not the secular, did that which he reports. And truly, what the testimony of S. Austine, (extending that Adultery upon which our Saviour grants divorce to all mortall sinne; but, confining him that is so divorced not to mary another) can avail him, that would intitle the secu∣lar Power to create causes of divorce, to the effect of marying again; let all reason and conscience judge. I shall conclude my argument; Exceptio firmat regulam in non exceptis. An exception settles the rule in all that is not excepted. Either our Saviour intended, that, who had put away a Yoke-fellow for adulte∣ry, should mary again, or not; If so, he hath forbidden marying again upon o∣ther causes; If not, much more: For, though upon adultery, he hath forbid∣den to mary again. And thus is the Power of the Church in Matrimoniall

causes, founded upon the Law which our Lord Christ hath confined all Christi∣ans to, of marying one to one, and indissolubly, whither without exception, or, excepting adultery. For, seeing that, of necessity, many questions must arise upon the execution of such a Law; and that Civil Power may as well be ene∣my to Christianity, as not; and that, as well professing to maintain it, as profes∣sing to persecute it; to say, that God hath left the Consciences of Christians to be secured by the Civil Power, submitting to what it determines, is to say, that, under the Gospell, God hath not made the observing of his lawes the con∣dition of obtaining his promises. This is that power which Tertulliane in seve∣ral places expresly voucheth, de Pudicitiâ, cap. IV. Penes nos (speaking of Christians, that is, of the whole Church) occultae quo{que} conjunctiones, id est, non pri••s apud Ecclesiam professae, juxta maechiam & fornicationem judicari percli∣tantur. Among us, even clandestine mariages, that is, not professed before the Church, are in danger to be censured next to adultery and fornication. And there∣fore, Ad uxorem II. ult. Unde sufficiamus ad senarrandam faelicitatem ejus ma∣trimonii quod Ecclesia conciliat? How may we be able to declare the happinesse of that mariage, which the Church interposeth to joyn? de Monogamiâ, cap. XI. Quale est id matrimonium, quod, eis a quibus postulas non licet hahere? What ma∣ner of mariage is that, saith he (speaking of marying a second wife) which, it is not lawfull for them of whom thou desirest it, to have? Because it was not lawful for the Clergy, who allowed the people to mary second wives, themselves to do the same. Ignatius, Epist. ad 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. It becometh men and women that mary, to joyn by the consent of the Bi∣shop, that the mariage be according to the Lord, and not according to lust. It hath been doubted, indeed, whether we have the true Copy of Ignatius his Epistles or not; whether this be one of them or not: But, that Copy being found, which Eusebius, S. Jerome, and others of the Fathers took for Ignatius his own, and hath all that the Fathers quote, just as they quote it, nothing of that which stood suspected afore; to refuse them now, is to refuse evidence, because it stands not with our prejudices. Not that this power of the Church stands up∣on the authority of two or three witnesses. These were not to be neglected. But, the Canons of the Church, and the custome and practice of the Church ancient••r then any Canons in writing, but evidenced by written Law, which could never have come in writing, had it not been in force before it was writ∣ten, suffer it not to remain without evidence. In particular, the allowance of the mariages of those who were baptized, when they were admitted to Bap∣tism, evidenced out of S. Austine, the Constituions, and Eliberitane Canons, evidenceth the Power of the Church in this point unquestionable.

And therefore against the Imperiall Lawes, I argue, as against the Leviathan; that is, if any man suppose, that they pretend to secure the conscience of a Christian, in marying according to them upon divorce. Either the Soveraign Power effects that as Soveraign, or as Christian. If as Soveraign, why may not the Christians of the Turkish Empire divorce themselves according to the Al••oran, which is the Law of the Land, and be secure in point of conscience? If as Christian, how can the conscience of a Christian in the Eastern Empire be secured in that case, wherein, the conscience of a Christian in the West can∣not be secured, because there is no such Civil Law there, the Christianity of both being the same? For, it cannot be said, that the Imperiall Lawes alleged, were in force in the West, after the division of the Empire. I argue again; That they cannot secure the conscience, but under the Law of our Lord, as contain∣ing the true interpretation of fornication in his sense. And can any man be so senselesse as to imagine, so impudent as to affirm, that the whole Church, agree∣ing in taking the fornication of maried people to signifie adultery, hath failed; but every Christian Prince, that alloweth and limiteth any other causes of di∣vorce, all limiting severall causes, attaineth the true sense of it? Will the common sense of men allow, that Homicide, Treason, Poysoning, Forgery, Sacriledge, Robbery, Mans-stealing, Cattle-driving, or any of them, is con∣tained

is the true meaning of Fornication in our Lords words? That consent of parties, that a reasonable cause, when Pagans divorced per bonam gratiam, with∣out disparagement to either of the parties, can be understood by that name? For, these you shall find to be legall cause of divorce, by those acts of the Emperours. Lastly I argue; If these causes secure the conscience in the Empire by virtue of those Laws, why shall not those causes, for which divorce was al∣lowed or practiced amongst the ancient French, the Irish, the Welch, the Rus∣ses, do the like? For, that which was done by virtue of their Lawes, reported there, cap. XXVI. XXX. is no lesse the effect of Christian power that is Sove∣raign. He that could find in his heart to tell Baronius (reproving the Law of Justine, that allowed divorce upon consent) that Christian Princes, who knew their own power, were not so easily to be ruled by the Clergy, p. 611. can he find fault with the Irish marrying for a year and a day, or the Welch, divor∣cing for a stinking breath? Had he not more reason to say, that, knowing their power, they might chuse whether they would be Christians or not? The dispute being; What they should do, supposing that they are Christians. And therefore, it is to be maintained, that those Emperours, in limiting the infi∣nite liberty of divorces by the Romane Law, to those causes upon which dow∣ries should be recoverable or not, (being made for Pagans as well as for Christi∣ans) did, as it were, rough hew their Empire to admit the strict law of Christia∣nity in this point. And, that this was the intent and effect of their acts, appears by the Canons which have been alleged, as well in the East, as in the West, made during the time when those Laws were in force. For, shall we think the Church quite out of their senses, to procure such Canons to be made, knowing that they could not take place in the lives and conversations of Christians, to the effect of hindring to mary again? If we coulde so think, it would not serve the turn, unlesse we could say, how S. Basil should testifie, that indeed they did take place to that effect, and yet the Civill Law not suffer them to take effect. From our Lord Christ to that time, it is clear, that no Christian could mary again after divorce, unlesse for adultery; some not excepting a∣dultery. In the base•• times of that Empire, it appears by the Canons of Alexi∣us, Patriarch of C P. and by Matthaeus Blastares, alleged by Arcudius, p. 517. that those causes, which the Imperiall Lawes allowed, but Gods law did not, took place to the effect of marrying again. But, that so it was alwaies from Constantine, who first taxed legall cause of divorce, nothing obliges a man to suppose. For, though the Emperours Law, being made for Pagans as well as for Christians, might inable either party to hold the dowry; yet, the Christian law might, and did oblige Christians not to mary again. The Mileuitane Ca∣non showes it, which provideth, that the Emperour be requested to inact, that no Christian might mary after divorce. For this might be done, saving the Im∣perial Laws. But, when we see the Civil Law, inforce the Ministers of the Church to blesse those Mariages which the Civil Law allows; but Gods Law makes adulteries, the party that is put away, and not for adultery, remaining alive; Then we see what a horrible breach the civil Power hath made upon Christiani∣ty, by hindring the Power of the Church to take place. For, on the one side, the blessing of the Church, seems to concur to the securing of the consciences of particular Christians, that they forfeit not their interest in the promises of the Gospell, by doing that; to which, the Church, for avoiding greater mis∣chiefe, is constrained to concurre: On the other side, that which is done, is, not onely, by the consent of the whole Church, in the sense of our Lords Law, but by those Divines of the Eastern Church, which writ during time that this corruption is pretended, as Euthymius and Theophylact upon Mat. V. con∣demned for adultery. Now, supposing the Law to part Wedlock, the Canon not suffering to mary again, S. Pauls alternative is whole; Either not to part, or parting, to be reconciled, but not to mary again. And therefore the Church had no more reason to interpose in that case, then to censure who does wrong in going to sute. For wrong is alwaies done, but, because it is between two, it is not censurable; onely S. Pauls aim of reconciling them is harder to be at∣tained,

when the dowry is recovered, then when cohibitation onely is parted. And therefore, as that licentiousnesse in divorcing, which the ancient French, the Irish, the Welch, the Russes, and Alysimes, did, or do use, is an evidence that Christianity was not so fully received, or did not totally prevail amongst them; So, when the Greek Church yielded to allow those divorces which the Civil Law allowed, which at the first it did not do, then was their Christianity im∣based and corrupted. Which, though it cannot have come to passe without the fault of the Clergy, yet it is most to be charged upon the secular power, the interesse whereof it inlargeth to the prejudice of Christianity. For, as in times of Apostacy, and factions in the Church, it hath been many times con∣strained to receive or retain those; of whose salvation it cannot presume, at the peril of their own souls; So, when it seems lesse evill to yield to that violence which the secular Power offers, then to abandon the protection thereof, those that impose violence are far more chargeable with the souls that perish by the means thereof, then those that yield to i•• for the best. And, that this may serve for a great part of excuse for the Greek Church, we have great argument to believe; Because, since the taking of Constantinople, being no more tied by the Civil Laws of the supream Power, they allow no divorce but for adultery: Nei∣ther is there any further difference between them and the Latin Church, but, whither Gods law, upon divorce for adultery, allow marying again or not. Which the Council of Trent hath no further impeached, then, in case it be maintain∣ed that the Church erreth in saying, that the bond of mariage remains inso∣luble, notwithstanding adultery on either side, Conc. Tied. Sess. XXIV. cap. VII. least the subjects of the State of Venice should be condemned unheard, who had alwaies maried after divorce for adultery; as the History relateth.