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. Another opinion, admitting the ground of lawfull Impediments. What Impedi∣ments arise upon the Constitution of the Church, generally as a Society, or parti∣cularly, as of Christians. By what Law some degrees are prohibited Christians. And, of the Polygamy of the Patriarchs. Mariage with the deceased wives Sister, and with a Cousin Germane, by what Law prohibited. Of the Profession of Conscience, and the validity of clandestine Mariages. The bounds of Eccle∣siasticall Power in Mariage upon these grounds.

I Am now to propose another opinion, pretending to justifie the Imperiall Laws examined concerning divorce, the moderation whereof I do much esteem above these novelties, tending to cast one Article concerning the Holy Catholick Apostolick Church, out of the common faith of all Christians. It saith, that the secular Power is able to limit the conditions upon which mariage is contracted (as being indeed a civill contract) so that mariage, contracted contrary to the conditions limited by the secular Power, shall be ipso facto void, the persons being, by the Law, rendred uncapable of contracting the same: And that, by the same reason, the same Power is able to prescribe such conditions, as, com∣ing to passe after mariage, are of force to void it by virtue of the provision go∣ing before, declaring it void, whensoever such conditions should come to passe. As, in case of murder, poysoning, treason, forgery, robbery, sacriledge, in case of impotence, absence of long time and the like; for, in case of mutual con∣sent, or, upon reasonable cause, without disparagement, themselves dare not take upon them to say, that the secular power can make any lawfull divorce. This opinion is indeed considerable, in regard of those impediments, which, Canonists and Casuists declare to have the force of avoiding mariage consum∣mate by carnall knowledge. For if they, or some of them, may appear to be well grounded, there can be nothing more effectuall to clear my first intent, to wit, what is the true interesse and right of the Church, in determining Ma∣trimonial causes.

I say then, that, upon the suppositions premised, that the Church is a Socie∣ty

founded by God, and that there is a peculiar Law of our Lord concerning the mariages of Christians, it necessarily followeth; that, as there are diver••e things, which make mariages void, or unlawfull, so the Church is to be satisfi∣ed, that there is none of them to be found in those mariages which it alloweth. If we consider the Church generally as a Society of reasonable people, certain∣ly, those things which render the contracts of all reasonable people, either void or unlawfull, in what Society soever they live, must needs be thought to ren∣der, either void or unlawfull, those mariages, that are so contracted in the Church. As for the purpose; Whatsoever is contracted either by fraud or by force, is of it selfe originally void, supposing that fraud, or that force to have been the cause why it was contracted. The reason being the same, that ties a man to any thing which ever he contracted; which is, his own free consent, in what he is not limited to by the law of God and Nature. For, if this be the reason that obliges, where this reason fails, the obligation of necessity ceaseth. And shall it then be thought, that any solemnity, which the Church may cele∣brate a mariage contracted by force with, can avail to make that contract bind∣ing? Or that a cheat, which, had it not been believed, a man would not have maried, nor the mariage have been solemnized, when it is solemnized, shall have force to oblige? This to those, who, believing that mariage is a Sacra∣ment, do think it consequent, that the solemnizing of mariage, renders those mariages of force to bind the parties, which, otherwise, are not onely unlaw∣ful, but also void. For, though I cannot here balk my order, and resolve how many Sacraments there are, and whether mariage be one of them or not; yet, since I can say, that, supposing it were, this would not follow, for the reason which I have said, nothing hinders ou•• discourse to proceed, as supposing it were, not granting that it is. In particular, seeing that, by the Law of Christia∣nity, none can mary with one that is bound to another already; the innocent party so married by cousenage, is so farre from being obliged by it, as to be ob∣liged not to use it upon notice. Again, in particular, seeing that Christianity de∣clareth mariage to intend procreation, and the remedy of concupiscence, the uglinesse whereof was never discovered by Idolators and Pagans; wheresoever is discovered a naturall impotence to per-form the act of mariage, there ap∣peareth an error, which had it not been, the mariage had not been made; And therefore, adding the generall to the particular, the contract must appear voide. The same is much more to be said, if, by any deceit, there hath been an error in the sex of one of the parties. Difference in Religion between Christians and Pagans, between Christians and Jews, renders mariage void by virtue of the premises, though it oblige not Christians to make use of their right, by re∣nouncing it, as Jews were obliged to desert Idolaters. But, that there may some new Religion spring up in the world, upon the divisions of the Church, (which, we see, are possible) which, question may be made, whether it be law∣ful, or, whether expedient for Christians, either to mary, or to continue ma∣ried with; (suppose for the present that of the Gnosticks, that of the Pri∣scillianists, that of our Ranters, or Quakers) who can deny? And, suppo∣sing such a question made, and supposing the Church to be a Society trusted with the guard of Gods Law concerning mariage, what determination can secure the conscience of a Christian, but the determination of the Church, in a cause grounded on mater of Christianity, for the guard whereof the Church stand∣eth? Doth not all the world acknowledge a publick reputation of that honesty which Christianity pretendeth, and challengeth to be performed, in the mari∣age of Christians as they are Christians? Do not all Christians acknowledge, that there is a neernesse both of blood and of alliance, within which Christi∣ans are forbidden to mary?

You will say to me, that these degrees are limited by the Law of God, in the XVIII of Leviticus, and, that the Church hath no more to do in prohibiting that which is not there prohibited, then in licensing that which is. But that will not serve my turn, having proved, that the Law of Moses, in the first in∣stance, was given for the civill Law of one people of the Jews, and, for their

civill happinesse in the Land of promise, given them on condition of living ac∣cording to it, with a promise of freedom over themselves so doing. The Church, on the contrary, a society of all Christendom, founded upon undertaking the Law of Christ, with promise of everlasting happinesse. For, what appearance is there, that the same Law should contain the condition of temporall and e∣ternal happinesse, in any part of humane life and conversation? Indeed, he that should argue, that, seeing God prohibited to many degrees of affinity and con∣sanguinity in the mariages of his ancient people, whom he treated expresly with upon onely temporall promises; all the same degrees therefore are prohi∣bited Christians, whom God deals with upon the promise of the world to come; I cannot see how his argument could find an answer. But, having showed, that Christians are bound to straiter terms of Godlinesse by the law of Christ, then the ancient people of God, whom God obliged himselfe to for the world to come, but by intimations, which needed stronger inclinations to virtue to im∣brace; will it not follow, that the provision of the Levitical Law, is no excepti∣on to this generall in mater of mariage? Indeed, it is not the power of the Church, that brings in this ground of restraining more then is restrained by the Levitical Law; but the nature of Christianity, which, I showed from the begin∣ning, to be, in order of nature, before the constitution of the Church, and an∣cient to it. But, having showed, that there is no presumption in Christianity to hinder that to belong to the Law of the Church, which is not recorded in the Scripture; by consequence I have showed, that the practice of the Church may be sufficient evidence for it, and, that the power of the Church is not onely sufficient, but necessary, to the determining of that which is not determined by it. I confesse, I have a difficult objection to answer▪ when I read Levit. XVIII. 24. 25. Be not polluted with any of these. For with these were the Nations pol∣luted, which I drive out before your face. And the earth is polluted, and I visit the iniquity thereof upon it, and, she spueth out her inhabitants. For, by this it should seem, that all the prohibitions of that chapter, contained in the gene∣nerall term of these thinge, stood by the perpetuall Law of God and Nature, so that they were never dispensed with before the Law, and that, therefore, there can be no reason to understand any degree to be prohibited Christians, which was not prohibited Jews. The objection were difficult enough, had we not per∣emtory instances to choke them with, that argue thus. For is it possible for any reasonable man to imagine, that God should call those things which the Fathers practised till now, those abominations for which he drives out the seven Nati∣ons from before his people? Is it not manifest, that Jacob was maried to two Sisters at once, that Moses and Aaron came of the mariage of the Mothers Si∣ster, Exod. VI. 20? that Abraham was maried to his brothers daughter, at least? And is it strange, that should be prohibited by Moses Law, which before was dispensed with? But, supposing that difference between the Law and the Gospel that I have proved, were it not strange, that that no more should be prohibited under the Gospel, then by the Law?

Of the Polygamy of the Fathers before the Law, I said enough afore, to show that it was dispensed with; how it was dispensed with, I said not, which seems to make men difficult of beliefe in the point. And, truly that which the Fathers say sometimes, that they were taught by Gods spirit, that they might do it, for the maintenance of the righteous seed; seems somewhat strange, if we under∣stood it, as if the world did acknowledge it to be prohibited, till the chiefe friends of God had particular revelation from him, that it was allowed them, being forbidden all the world besides. Now, we have good information from the Jews (which all men of learning do now accept for Historical truth) that, after the flood, there were certain precepts delivered to Noe, and his Sons, (which therefore, they call the seven precepts of the Sonnes of Noe) with an intent to oblige all Nations; among which there was one, that prohibited the uncovering of nakednesse, signifying thereby, the forbearance of all that was then to be counted uncleannesse. Which what it was, and what it was to con∣tain afore the Law, though it be not recorded in Scripture; yet we are to stand

assured, that nothing that we find practiced by the Fathers, was any part of it; Because, being so highly favoured by God as we find they were; we are not to think, that they lived in rebellion against any part of his Law. The Jews in∣deed say, that the same Precepts were all delivered to Adam, and to his poste∣rity, saving one concerning the eating of blood, which was added, when the rest were renewed to the Sons of Noa after the flood; which I think my selfe at liberty not to believe. For then, whatsoever is not contained in these pre∣cepts, must be understood to be allowed all the Sons of Adam, before the flood. Whereas, the Polygamy of Lamech seems to be recorded by Moses, for the first transgression of the originall institution of Paradise. And, when we read, after the world had stood XVC years, that men began to multiply upon earth; there is appearance, that, thitherto, Polygamy was not in use among the children of God, supposing them to be the posterity of Seth, which conti∣nued in the service of God, as the most received interpretation hath it. For, had Polygamy been then in use, they would have multiplyed faster, as after the flood, and, as the Israelites in Egypt. Not that it was not then in use among the children of men, after Lamech had begun it; but because, being not en∣tertained by the children of God, (one halfe of mankind at that time) it took not the like force, even among the children of men, as after the slood. This is the reason why, believing that the institution of Paradise was in force, at least among the children of God; I admit the Tradition of the Jews, con∣cerning the precepts of Noahs children after the flood, according to S. Jerome again Jovinian, where he saith, that neither divorce, nor eating flesh, was licen∣sed untill the flood. Polygamy and divorce being maters of so near kinne, that the one cannot be imagined to have been allowed, when the other was not. For if God gave the Sonnes of Noah these precepts, he gave them assurance of his favour, living within the compasse of them, which is to dispense with the pri∣mitive institution of Paradise.

But, I do not therefore think my selfe tied to those bounds, which the Jews limit the meaning and intent of this prohibition of uncovering nakedness with; (namely in the point of simple fornication, which, they no where allow to have been prohibited by it) as the Lawes of Moses (they say well) extend not to them, being made for free Denizens of Gods people, unlesse it be other∣wise expressed; as in the prohibition of eating that which is torn, which they are commanded to give to the stranger within their gates, Deut. XIV. 21. For, seeing that they were utterly prohibited to suffer Idolaters to live within the Land of promise; but, that it is supposed, strangers should live in it, which, be∣ing not tied to their Laws, were not circumcised, and, that they might have slaves of this rank; we have certain evidence, for the truth of the Tradition concerning certain precepts given all mankind after the flood. But if, because there is no punishment assigned for the fornication of strangers, it should there∣fore be thought, it was then no sinne, by Gods Law to all Nations; I should deny the consequence. The fornication of Judah with Tamar, whom he took for a pros••itute, we see he avowed not. And that of Samsom with Dalilah, I may as easily say, was, under pretense of mariage, as the Jews, that she was a Proselyte of the Children of Noah. For, it is agreed upon, that, by the Law, an Israelite might neither commit fornication with an Israelitess, nor with a Gentile; The one by the Law of Deut. XXIII. 18. & Lev. XIX. 19. The o∣ther by that which you read in the Book de Jure Naturali & Gratium secun∣dum Ebrues V. 12. Wherefore, seeing the Law supposes Harlots, when it for∣bids the Hrie of them to be consecrated to God, Deut. XXIII. 18. it seems to follow, that the Law allow, that trade only to strangers of the Sonnes of Noah, that is to say, not Idolaters, in the Land of promise. For though the Jews will have this Law to take hold of him that lies with a Gentile, or slave, or Jewesse, that is forbidden him, whither by the law of uncleannesse, Levit. XVIII. or any other; yet we find it not punishable by the Law, unlesse it be with a Gen∣tile-slave, who, having partly obtained her freedom, is espoused to an Israelite, Lev. XIX. 20. as the Jews limit it; because, otherwise, they were forbidden to

mary slaves, according to Josephus, Antiq. IV. 8. For, they that counted the dis∣honour of Dinah such a reproach to them, that, notwithstanding all possible reparation tendred, they were to revenge it so deeply in blood; shall we ima∣gine, that they counted it indifferent in the rest of mankind, even those who were retired from Idolatry, to professe the true God, as the Jews their suc∣cessors seem to do? Rather are we to attribute this opinion of the indifference of it to the coming in of Idolatry, which was the Apostacy of the Gentiles from the Law g••ven the Sonnes of Noah; S. Paul Rom. I 24-27. according to the Author of the Book of Wisedom, III. 12. 16, 19. VI. 3. 6. ascribing that inundation of uncleannessd, which overflowed all the world but Gods people, to the coming in of Idols. And therefore, fornication, though forbid∣den, by the Decalogue, is not alwayes punished in the Israelites themselves; because the law, (which S. Paul saith came in because of transgressions, Gal. III. 29. and, was not given the righteous, but the unrighteous, 1 Tim. I. 9. 10, 11) intending to prohibite the grosser sins, which civil Society is chiefly offended with; expected spiritual obedience, upon the belief of God and his providence, in taking account for our actions here, together with the promise of deliverance by the Messias to come; and not from the constraint of temporal punishment, which the Law was armed with. For, if this were the means of grace provided for the seed of Abraham, well might it serve those strangers, who, renouncing the service of Idol••, should joyn themselves to Gods people, & so become parta∣ker•• of the same means with them, to induce a resolution of spiritual obedience.

We have further to perswade us, to admit of this dispensation in the primi∣tive institution of Paradise; the Tradition of the Jews, affirming, the prohibiti∣on of Levit. XVIII. to have belonged in part to the stranger within their Gates, in part not. Which Tradition, being committed to writing▪ so late af∣ter the dissolution of the Goverment, and, having still the force of Law, where strangers should make themselves Jews (which certainly, at the writing of their Traditions, fell out many times) we must needs allow, for the inter∣pretation of that law which was in force while their state stood; though we question, whither it contain the due bounds of this prohibition, as it was first delivered to mankind after the flood. And hereupon, well may wee an∣swer with them, that when Moses saith; that for these abominations the se∣ven nations were driven out before the children of Israel; he is to be understood, respectively to those abominations which were committed against the true in∣tent of the prohibition of uncleannesse, injoyned on all mankind; but not to those things which we see were in use among the Fathers before the Law, nor to whatsoever was committed against the first institution of Paradise. Which if it be admitted, then, all that is established by the Law of Levit. XVIII. will oblige the whole Church, without dispensation by any power of it; though, not because, by the act of giving the Law to the Israelites, the Church is obli∣ged; but, because there is more reason why Christianity should restrain that which was allowed by the Law, then that the Law should restrain that which was allowed by the Patriarchs. And, upon this principle, we shall not need to runne upon any inconvenience, to obtain one degree of affinity, and one of consanguinity to be unlawful for Christians, though not expressed in the leter of the Scripture; to wit, the mariage of the sister to a mans deceased wife, and, that of cousin Germanes.

The former is thought to be secured by the Text of Levit. Thou shalt not un∣cover the nakednesse of thy Brothers wife, it is thy Brothers nakednesse. For, the wives sister being as neer as the Brothers wife, the one being prohibited, and, neernesse the onely reason of the prohibition; the other cannot be licensed, saving the reason of the Law. Therefore the provision of D••ut. XXV. 5-10. that the next of kin, though a Brother, should mary the wife of the Brother deceased, so that the children should be, in account of Law, the children of the deceased; All this, signifies▪ no more, but that, the Law being positive, this ex∣ception is made to it by him that made it. So that, when it follows, Levit. XVIII. 18. Thou shalt not take a wife to her sister to vex her, to uncover her na∣kedness,

beside her in her life time; It is observed, that in the Ebrue, to take a wife to her sister, is, to take a wife to another wife: And therefore, that this Law is a prohibition of Polygamy, at least when the taking of another wife may be an occasion to vex the former wife; Not, that a Jew was licensed hereby to mary his wives sister after her death. This, indeed, was the interpretation of the Sadduces, and of those Jews that admit no interpretation of the Law of Tra∣dition, but onely by the leter of it; for which they are reproved by the Tal∣mud••sts, the off-spring of the Pharisees; in the Book called Pesikta. Though it is to me difficult to believe, that the Sadduces of old, or their successors, the Scriptuary Jewes, did thereupon, tie themselves to one wife. It is, in∣deed, difficult enough to give an evident reason of difference in nearnesse of blood; wherefore the brother, should be prohibited his brothers wife, and the sister allowed her Brothers husband. But, it is one thing to alledge an incon∣venience, an other thing to answer an argument; nor are we to presume, that God doth nothing by his Law, without acquainting them whom he imposed it upon with the reason of it. Now, this interpretation cannot subsist, without o∣verthrowing all that hath been said, to show, that Polygamy after the flood was first prohibited by Christianity. For, when thy Brothers wife is generally prohi∣bited in Leviticus, and afterwards licensed, or commanded, in case he die child∣lesse, it is but a particular exception to a general. But if, in Ex. XXI. 10. a man is supposed to have power of having more wives then one, and by Lev. XXIII. 10. injoyned to have no more then one, in Deut. XXI. 11-15-18. supposed to have more then one; can these be thought reconcilable? Certainly, the tenor of these Lawes imports no such thing as dispensing, but a liber∣ty already in use, which the Law restrains not; but this Law would restrain, if, had it been thus meant. And why should the Law say, in her life time, if the intent of it were, that a man should not have two wives at once? Could there be any question, whether a man might mary a second wife or not? Therefore, that clause must be thought to be added, to signifie, that, after death, this Law forbids not to take the wives sister to wife. And so, that which Jacob had done before, is, by this Lavv, forbidden to be done for the future. For Jacob, vvhen first he found that he had beded his vvives sister, vvas innocent for all that vvas done, but had been utterly disabled to have companied vvith any other for the future, vvithout dispensation in this Lavv; vvhich, vve must imagine, either to have come betvveen Labans proposition of marrying both, and Jacobs assent; or else, to have gone before all the actions of like nature, vvhich the Scripture testifies; vvhereof, vvhither is the more reasonable, let any man of reason chuse. As for the limitation added to the right of having more vvives then one under the Lavv, Exod. XXI. 10. vvhereby, he that hath an inferiour vvife, bought vvith his silver of Gods people, is bound to pay her the benevo••ence due to a vvife, though it make the mariage void by abuse of his right; (for it is said; He shall let her go free, vvhich implies the dissolution of the marriage) yet, it no vvay signifies, that he vvas not able to mary her afore. And, vvhen the Prophet, Mal. 11. 14. 15. 16. blames the Jevvs for oppressing their vvives, out of love to strange vvives, vvhich, by the Lavv they might not have; be this adultery, if you please, (because such a mariage, as, I have shovved, vvas ipso facto void) be it trea∣chery in transgressing his covenant vvith the first vvife; yet did not he that took a second vvife so as to oppresse the first, violate this Lavv of Levit. XVIII. 18. For, hovv can a mariage that is good and valid, become void by oppressing? but, as an Ebrue slave that one maries is made free by the Law, if she be not used as a wife (and so, no longer his wife) that reliefe being onely provided by the law in that case. Therefore when the Law saith,—to vex her, it is not limitation, but a reason, which the Lavv follows in sisters, because, in them, as it is more likely to come to passe, so it is more unreasonable, as in Jacobs example; whereas, being a perpetual attendant of Polygamy, as in the wives of Elkanah, it was not, nevertheless, admitted for a reason totally to prohibite it. And there∣fore, I say, that I am no waies tied to give a reason, why God, who prohibited two Brothers to have the same wife, should allow two sisters to have the same husband, after death. For, the Lavv being positive, (as it is confessed by the

dispensation introduced by the Law, on the one side) the will of the Law-giver is the reason of those bounds which he limits, and therefore he is not obliged to inact those bounds, vvhereof there is no reason to be seen. His ovvn knovv∣ledge, of what was fitting for his design, of husbanding the restraints of the L••vv, ••o as to make vvay for the necessity of the Gospel; being the only reason that remain•• undisputable. And is not the instance manifest, in that, the Fa∣thers sisters being prohibited by the Law, the sisters Daughter is not, vvhere∣upon Herod maried his ne••ce, and espoused his daughter to his brother Ph••r••∣ras, Jos. Ant. XII. XVI? Which he that considers, will not despise a probable reason evident to the Jevvs, though he acknovvledge that it inforces nothing, s••tting the vvill of the Lavv-giver aside; To vvit, that the young are vvont to frequent their Grand-fathers and Grand-Mothers houses, and there to have conv••rsation vvith their Fathers sisters, having lesse interess in Brothers houses, and so frequenting them lesse. Which holds also in the brothers house, more then the wives sisters. And so the reasons of the prohibitions, of Leviticus, XVIII. being two, ne••rnesse of blood, occasion of uncleannesse, if the Law had not made the mariages of such persons unclean; this reason may way where the other does not appear. As for the inconvenience that is feared, that Christian people should license themselves to do that under the Gospel, which, it is confessed, that Gods people under the Law, were not prohibited to doe; (for, it is manifest, that some which count themselves great Saints have done it) either people do believe the Holy Catholick Church, or not: If they believe it, they must believe the power of the Church, in limiting that which our Lord Christ hath not limited, in ••estifying where our Lord Christ and his Apostles have li••ited, though not recorded to us by the Scriptures; according as I have deduced it in the premises. If not, it is no marvail to see, that, Apostacy from the belief & unity of Gods Church, should now & then draw after it licentious∣n••sse in such a point as this is. If the Canons and Customes hitherto reveren∣ced by all Christians, as the remains and evidence of the conversation delive∣red over by the successors of our Lord to his Church, cannot prevail with men, to forbear that which no example but their own warrants; the Scripture can∣not stand long, standing onely upon motives of conscience. It is as ordinary to hear it said, that the Scripture which is contained in the Bible, is not the Scripture, but that which is written in the heart; that the man that was crucifi∣ed at Jerusalem is not Christ, but he that dwels in the he••r••; as it is to see a man mary the sister of his deceased wife. Temporall punishments may de∣terre ••en from publishing such blasphemies; But, if the unity of the Church come not in, to evidence the motives of faith, and, by consequence, to pro∣cure the reverence of those Laws, whereby onely it may be maintained; it will be as easie and obvious to despise Christianity and the Scriptures, as the Church, and those Rulers, wher••by the service of God is maintained in the unity of it.

As concerning the Mariages of Cousin Germanes, the premises being sup∣posed, I am not a whit troubled, that I cannot produce such Canons in wri∣ting, as may evidence, that all Christians from the beginning forbore it. For, ••aving showed, that all the Canons of the Church were in effect and force be∣fore they were written and inacted by Councils; and, that the inacting of them was but the limiting of some circumstances, abating the rigour of primitive cu∣stomes, because, the number of Christians multiplying, could not so easily be h••ld to it; I cannot see how S. Augustine can be refused, when he tells us, de Civ. dei. XV. 16. Raro per mores fiebat, quod fieri per leges licebat, quia id nec divina prohibeat, & nondum prohib••erat lex ••uman••: Ver••ntamen factum ••eti∣am licitum propter vicinitatem horrebatur illiciti. Seldome was that done, by reason of custome, which by reason of l••w might have been done, because, neither did Gods Law prohibite it, nor as yet ••ad mans Law prohibited it: Notwithstand∣ing, being lawful to be done, it was abhorred for the neighbour-hood of that which was unlawful. Gods Law in Leviticus, had not forbidden it. Nor the Laws of the Empire as yet. How then came Christians to abhorre that, which, the law

of God and Man, saith S. Augustine, (that is to say, the law of Moses, and of the Empire) licensed? Is it possible that Christendom, of it own free motion▪ should conspire to impose upon it selfe such a restraint, having no share in Chri∣stianity? It is still as easie to maintain, that the world was made by the casuall meeting of Atomes, according to Epicurus, denying providence. But, suppose the Apostles and their successors, to have received for a necessary point of Chri∣stianity, that, unlesse our righetousnesse exceed the righteousnesse of the Scribes and Pharisees, we shall by ••o means enter into the Kingdom of heaven; and, suppose them to have the allowance of all mariages, that is, the discerning of what is agreeable to Christianity, from what not; and you render a sufficient reason, how such a custome should prevail in the Church, which, otherwise, is not to be rendred. And, supposing such a custome, you grant that, that which Christians abhorred onely because it was neer that which the law of Moses, or the law of the Empire made unlawfull; was become it selfe unlawfull, by virtue of that custome, which, no Christian, that would not offend the unity of the Church, could lawfully transgresse. The saying of Justine the Martyr, Ep. ad Zenam & Ser••num, is truly Apostolical, and takes place here again; 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. They obey the Lawes that are, and in their lives, go beyond the Lawes; speaking of the Christians. But if it were the character of Christians to go beyond the Laws, shall we count it a thing law∣ful for a Christian, to efface in himselfe the common character of Christians? When the Great Theodosius made it a Law to the Empire, not to mary Cousin Germanes (which is the Law that S. Augustine intimates, for which he is so much commended, not onely by S. Ambrose, Ep. LXVI. but by the Heathen Historian Sex. Aureli••s Victor in Theodosio) did he do this for a frolick, (all reason of state disswading the imposing of unnecessary burthens, where the necessary were so great) or, did he do it because he would promote Chistiani∣ty, by imposing upon the Empire, before it was all Christian, the custome of Christianity? I know this act was repealed by Justinian, and perhaps upon advice of some Bishops, who alwaies frequented him, as we understand by Procopius. But, neither is the authority of Justinian of weight in the question of Christianity; neither did those Bishops, that might give this advice, act in the quality of Bishops, but of his friends and Counsailers; their opinion as Bishops, would not have served to change the customes of the Church. There∣fore this repeal never took place in the West. For first, the Gothes retained Theodosius his Law, as Cassidore VII. 46. testifieth, (which Cvias saith, is the reason, why, in Gai••s, (out of whom Justinian took his Institutes for the most part) it is at this day read; Duorum fratrum vel sororum liberi, vel fratris & sororis jungi non possunt. The children of two Brothers or Sisters, or, of a Bro∣ther and Sister, may not mary together; contrary to that which Justinian is known to have inacted) Then, the later Emperours revived the Law of Theodosius; upon which occasion it is still read in many Copies of the Institutes, de Nupt. X. 4. non possunt, expresly against many parts of Justinians Law. And, for the East, how shall we say that Justinians Law was repealed, or, upon what ground, but that the custome of the Church prevailed to move Christian Emperours to repeal it, seeing Christendom scandalized at the license introduced by it? He therefore that alleges I••stinian in these cases, or, even Moses, let him allege He∣rods marying his Brothers Daughter, and espousing his Daughter to his Brother Pheroras in Iosephus, A••t. XII. & XVI. and so allowing the same; which when Claudius for his own lust licensed▪ there was scarce found a Gentleman in Rome that would do the like, as Tacitus reporteth. Indeed, when S. Austine says, this was rarely done afore Theodosius, signifying, that, sometimes it was done; we must accknowledge, not onely that the mariage was not void, that was so made from the beginning (for neither is the mariage of the deceased wives Si∣ster, or, of the neece, void by the Canons of the Apostles, and the Eliberine Canon injoyns, upon marying the wives sister, five yeares Penance, signifying that it was not void) but also we remain uncertain whether it were censured by the Church, or how.

But, when S. Gregory allows Austine the Monk, to allow the first Christian Saxons to mary in the fourth degree, we are not certified, whither according to the account of the Romane Law, or, according to that account which the Popes afterwards brought in use. For, the Romane Law, counting the stock for one, made no first degree in the cross line, but reckoned Brothers the se∣cond, and, by consequence, Cousin Germanes the fourth, determining both legall successions and affinities within seven degrees, which are sometime called six, as you include both terms, or exclude the one, L. X. ff. de gradibus & af∣finibus. Paulus, Sent. IV. 11. ubi Anianus & Modest. L. XLV. ff. de gradibus & affinibu••. Whereupon mariage was first forbidden in the West, as far as the seventh degree inclusive, Caus. XXV. q. 2 & 3. & cap. 20. ib. Greg. P P. I. Nic. P P. II. c. 17. ib. & sentent. IV. dist. XL. Isid. Orig. IX. & c. 6. Caus. XXXV. q. 5. Grat. c. 21. whereby it should seem that this degree was dispensed with by S. Gregory, being otherwise, then prohibited. But the Pope afterwards, intro∣ducing a contrary way, of counting brothers for one degree, and Cousin Ger∣manes the second, (which before were the second and the fourth) determi∣ned, kindred by seven of these degrees, which were before just halfe so many Alex. PP. 2. c. 2. Caus. XXXV. q. 5. and all these prohibited, c. 14. Caus. XXXV. q. 2 & 3. till reduced to the fourth by the Laterane Council under In∣nocent III. for the difficulty and burthen of it, (which fourth, is just the eight by the former account) which is now the law of the West under the Pope. A thing which I cannot admire at enough, either how proposed, or how admitted. Whereas in the East, the seventh degree (according to the Roman account) is neither permitted, nor the mariage dissolved if consummate. Ius. Graecorum. L. III. p. 204. lib. IV. pag. 266. afterwards, under Michael Patriarch of C P. Ib. lib. 3. p. 206. the seventh was forbidden, the eighth alwayes licensed. See further, Harmenop. lib. IV. Tit. 5, Arcudius VII. 30. which I allege, all to no purpose but this, that the consent of Christendom, submitting to be restrain∣ed beyond all degrees, any way pretended to be expressed by Gods Law, is an evidence of the two Principles alledged, that they were from the beginning ad∣mitted by all Christendom. Indeed, when it is said, that which the Church cen∣sured not, which S. Gregory dispensed with, which the Romane Emperours and Gothish Kings reserved themselves a power of dispensing in, as appeares by a Law of Honorius and Theodosius, in C. Theod. Si nuptia ex rescipt•• p••tantur and by Cassi••d. VII. 46. It is no marvail if it be permitted by the Statute of H. VIII. XXXVI. 38. we may see the case hath been not much otherwise with us, since that statute, then with Christendom, before the act of Theodosius. For, as then, the known custome of the Church; so since, with us, the remains of the opinion of that publick honesty, which Christianity first introduced, hath been the cause that few have used the known liberty of the temporal law; and that, with such reluctation of judgement, as hath been thought the occasion of evill consequences. As for those degrees, which, being prohibited by the Popes, are of course dispensed in for paying the fees, without any notice of particular reason in the case; as it is not for me, either to maintain the abuse of Ecclesiasticall power, or, because of the abuse, to yield, the Church to have no power in those causes, which it could have no power in, if that power might not be abused; so, I am able to conclude, that it were more Christian for any Christian state, to undergo a burthen altogether unreasonable, then to shake of a burthen, for which there is so much reason in Christianity, as I have show∣ed, for prohibiting the mariage of Cousin Germanes.

Another impediment, of force to void mariage, whether onely contracted, or consummate also by carnall knowledge, pretended by the Church of Rome, and practised in the Eastern Church, is that of profession of single life, to attend upon the service of God alone. For, whether Christians under wed∣lock, upon consent, may part from bed and bord for this purpose, there is no reason for any Christian to make difficulty, the wish of S. Paul, that all were as he, 1 Cor. VII. 1. taking place in them as well as in all others; That to avoid fornication, one man should mary one wife; not taking place, but in them, in

whom no such resolution is supposed. Upon which supposition, they are com∣manded to return to the use of wedlock, after having retired for Prayer and Fasting, least Satan tempt them through their incontinence. But this is dispu∣table, whether it be a dissolution of the bond, or onely a suspension of the ex∣ercise of mariage. It is further pretended, that the one party may, by publishing such a profession, make void the mariage that is not yet consummate by carnall knowledge, leaving the other free to mary elsewhere. This in the Church of Rome. For, in the Eastern Church, I doubt not that those Imperial Laws took place, which made this profession a lawful cause of dissolving mariage in being, per bonam gratiam, as the Romane Law called it; whether the party so desert∣ed, were allowed to mary elsewhere or not. And indeed we find S. Basil, qq▪ fusius explicat XII. and S. Chrysostome, in Mat. hom. LXIX. ad pop Ant. & in 1 Tim. hom. XIV. together with Cassiane in the example of Theonas Collat. XXI. 9. 10. in their zeal to monasticall life, advising maried persons not to stay for the consent of their parties, in making such a profession as this; At such time as the West, where monasticall life was not yet so originally spread, S. Hierome, Epist XIV. and S. Augustine, Epist. XLV. & CXCIX. & de adult▪ conjugiis, maintain the contrary opinion: Which to me, I confesse, seems fa•• more probable. For, granting single life, duely ordered, to be the ordinary way and means of attaining perfection in Christianity, according to the pro∣mises; this state of eminence necessarily supposeth that which is necessary to the being of Christianity. Therefore, the way to perfection must be grounded up∣on justice. Now, in justice, the contract of mariage among Christians, gives each party that interesse in the others body which mariage exerciseth. Which interesse, noting but consent seems to dissolve. And therefore, seeing there is no Tradition of the whole Church to inforce this right, not onely particular Churches, not allowing it, shall not seem to me to depart from the Unity of the whole in so doing: But also Soveraign Powers, through their severall do∣minions, in regard of the interesse which all States have in the mariage, or single life of their subjects, shall lawfully use their Power, to limit the force of it. But, as for mariage consummate and used, I cannot see, how the party deserting up∣on such pretense, is excused from the guilt of adultery which the deserted may commit, either single or maried again. As for the question that may be made, whither the mariage of one that hath professed single life be void or valid; sup∣posing the profession of single life to be agreeable to Christianity, (as, I con∣ceive, I have showed sufficient reason to believe) there is no consideration suf∣ficient to make mariage after it valid, but the abuse of the profession it selfe, a∣mounting to such▪ a height, as may serve to satisfie a Christian, that, in conside∣ration thereof, it is it selfe in the first place become void.

Another impediment yet remains questionable, whether it be of force to dissolve those mariages which are called clandestine, whither for want of con∣sent in the Parents, or the solemnities of the Church. Some think, that want of consent of Parents, not onely makes the act unlawfull, which all agree in, but the mariage void. As if the reverence due to Parents by Gods law, did make a mans contract with a thirdperson void, who is no waies bound to inquire, whither his free consent be lawfully exercised or not. In the Scriptures, we see, Gods people proceed by consent of Parents, and, daughters especially, S. Paul supposes to referre themselves to their Fathers, 1 Cor. VII. 36. But, neither was Esaus mariage taken to be void, because it was made without such con∣sent, Ge••. XXVII. 45. Nor was there any particular consent of Iacobs Pa∣rents to his mariages, Gen. XXIX. nor were the Fathers of Iudah or of Tobias, made acquainted with their mariages. And, as for the Romane Laws, which void mariages for want of this consent in some cases, it is no more an argument of the Law of nature, then the power of the Father by the same Laws, which, neverthelesse, allow the Mother none, when as Gods Law alwayes, as well as the Law of Moses, gives them equall interesse. It is therefore manifest, that there is ground in Gods Law, to make this impediment of force to dissolve ma∣riage contracted without it. And that, either for the Church, as the reverence

of Parents, is a part of Gods law now in being, which the power of the Church pretendeth to preserve; Or, for the secular Power, as the interesse of Parents in the mariages of their children, is of consequence to the publick peace and wealth. The same may be said of those mariages that are made without witness, or, without solemnities of the Church, saving that, those solemnities which contain the approbation of the Church, arising upon the account of the Church, it is evidently more proper for the Church, to make this impediment of force to dissolve mariage; For the secular power, to in••ct the Law of the Church by force of arms and temporall penalties. There remains one cause more to hinder mariage, so as to dissolve it when consummate, being made notwith∣standing it, the condition of slavery in either of the parties, at such time, when as the rights of bondage subsisted. This cause stands now by the Canon Law, and is in••orced and limited by the Casuists: But it was not the Canon Law, that first voided the mariage of a slave taken for free, but the Laws of the Empire, as Ivo himselfe, a Collector of the Canons, witnesseth, Epist. CCXLIII. where, having produced the Law of Iustiniane, he thus proceedeth; In tali er∣go contractu, quod lex damnat, non homo sed i••stitia separat; quia, quod contra le∣ges praesumitur, per leges solui meretur. In such a contract then, that which the law oondemns, it is not man but justice th•••• separates. Because, what is presumed a∣gainst Law, by law deserves to be dissolved. Which re••son takes place also in legall kindred, according to the Imperiall Lawes, whereby, an adopted Bro∣ther is disabled to mary his sister by adoption. In imitation whereof, an opi∣nion of the publick honesty of Christianity, so prev••iled in that Church after∣wards, that, being once Gossips, came to be an hindrance of mariage; which opinion, howsoever grounded, notwithstanding, introduced the same kind of bur∣then, and no other, then that of legall kindred by adoptions. These reasons, though not admitted by all professions in Religion that shall meet with this, yet seeing they proceed upon one and the same common ground, the effect and consequence whereof cannot be admitted in some, and refused by the rest: And seeing that some of them are admitted on all sides, there being no other reason sufficient, why they should be admitted; may serve to evidence the in∣teresse of the Church in Matrimoniall causes. And that evidence may serve to inferre, that, though the secular Power hath also an interess in the same; yet in regard of the trouble which concurrence may cause in civill Government, Christian Princes and States, have done wisely (as well as in regard to the inte∣ress of the Church, they have done Christianly) in referring the conduct of Ma∣trimonial causes, almost wholly, to the Church. Especially, supposing that they take good heed, that the laws thereof neither trench upon the Interess of their Crown, not the wealth of their subjects. But, whither secular Power can make laws, by virtue whereof, that which a man voluntarily acts afterwards, shall be of force to void mariage contracted afore, (upon wich ground, the opi∣nion which I propounded last, would justifie the divorces which the Imperiall Laws make, to the effect of marrying again) will be a new question. Seeing that if any thing b•• to be accepted, it will be in any mans power to dissolve any mariage; and the law of Christ, allowing no divorce but in case of adulte∣ry, will be to no effect. Neither will there be any cause, why the same Divines should not allow the act of Justine, that dissolves mariage upon consent, which they are forced to disclaim, allowing the rest of those causes which the Impe∣rial Laws create. Indeed, whither any accident, absolutely hindring the exer∣cise of mariage, and, falling out after mariage, may, by Law, become of force to dissolve it, I need not here any further dispute. For, so the securing of any Christian mans conscience, it is not the act of secular Power inacting it for Law, that can avail, unlesse the act of the Church go before, to determine, that it is not against Gods Law, and therefore subject to that civil Power which is Christian. The reason indeed may fall out to be the same, that makes impo∣tence of force to do it, and it may fall out to be of such force, that Gregory III Pope, is found to have answered a consultation of Boniface of Mence, in the affirmative, XXXII. q. VII. c. Quod proposuisti. But this makes no diffe∣rence

in the right and power of the Church, but rather evidences the necessity of it. For though, as Cardinall Cajetane sayes, the Canon Law it selfe allows that Popes may erre in determining such maters, cap. IV. de divortiis. c. licet de sponsa duorum, (which every man will allow in the decree of Deuededit Pope, Epist. unicâ) yet the ground of both Power witnessing the Constitution of the Church, as a necessary part of Christianity; as it determines the true bounds of both, so it allows not the conscience of a Christian to be secured by other means. And were it not a strange reason of refusing the Church this Po∣wer, because it may erre, when it must, in that case, fall to the secular Powers, who have no ground to pretend any probable cause of not erring? For he that proceedeth in the simplicity of a Christian heart, to use the means, which God, by Christianity, hath provided for his resolution, may promise himselfe grace at Gods hands, even when he is seduced by that power which is not infallible. But, he that leans upon that warrant, which God, by his Christianity, hath not referred him to, must answer for his errors, as well as the consequences of the same.