Bishop COZENS's ARGUMENT, PROVING, THAT Adultery works a Dissolution of the Marriage.
Being the Substance of several of Bishop COZENS his Speeches in the House of Lords, upon the Debate of the Lord Ross's Case.
Taken from Original Papers writ in the Bishop's own Hand.

THE Question is indefinitely to be spoken of, Whether a Man being divor­ced from his Wife, who hath committed Adultery, and is convicted of it, may Marry himself to another Wife or no, during the Life of her which is divor­ced.

The Place in St. Matthew the 5th, repeated again St. Matthew the 19th, has great Per­spicuity: If it be not lawful for any man to put away his Wife, and Marry again, except it be in the Case of Fornication, (for the displacing the Words, by putting the Exception before the Marriage, cannot alter the Sense); then à contrario, it must of necessity follow, That if the Wife be put away for Fornication, the Husband by the Tenor of Christ's Words is left free to Marry again; which Freedom is not allow'd the Adulteress her self, nor to any man else that shall Marry her.

St. Mark and St. Luke have been opposed to St. Matthew; and it has been said, that Christ's words in St. Matthew did not properly belong to Christ's Disciples, or the Chri­stian Church, as the words in St. Mark and St. Luke, which are absolute, do; which is a Saying that neither I, nor, I think, no body else ever heard of before: For Christ's Sermon in the Mount was spoken to his Disciples; and especially belonged to Christians.

'Tis clear they are spoken to his Disciples; for he says to them, that they are the Salt of the Earth, and the Light of the World; and that they are blessed, when they suffer persecution for his Name's sake; which no man will say or apply to the Iews.

'Tis true, that in the 19th Chapter of St. Matthew, Christ answers the Scribes and Pharisees, who came to tempt him with their Question, Whether it was lawful for a man to put away his Wife for any cause, as they said Moses had permitted them to do. But the An­swer that Christ gave them, That it was not lawful, but only in the case of Adultery, for men to put away their Wives, and to marry another, was a Rule which concerned all Chri­stians to observe for ever after; and for that reason was recorded by St. Matthew.

The words in St. Mark and St. Luke, are not to be taken absolutely, but to be sup­plied and understood by his words in St. Matthew; as in many other Cases is clear; viz. the Thief upon the Cross, Baptism in the Name of the Father, Son and Holy Ghost, &c. whereof many Instances may be brought, as the destruction of Niniveh, &c.

But for Christ's words, the Exception confirms the Rule, and infers a Concession, that in the Case of Fornication, the putting away one Wife, and Marrying another, is allowed. It is alike with divers other his Exceptions, which are found in Scripture: For brevity, I will instance in this one (vix.) Except re repent, ye shall all likewise perish: Upon which Text, if I or any Bishop else were to Preach. I believe we should not discharge our Duty, unless we should tell the People, That if by the Grace of God they did repent, they should not perish.

The Exception here, [...], nisi, unless, is parallel with the 1 Kings 3. 18. None were in the house, except we twain; they Two therefore were, others were not.

Such Exceptions proceeding from natural Equity, are tacitly implied in Laws, tho pronounced in general Terms.

[Page 2] But as to the Exception here, the Words are not capable of any other Sense than as I have observed; for except that Restraint be referred to Marrying again, the Sense would run thus, Whosoever puts away his Wife commits Adultery; which stands not with Truth or Reason; since it is not the Dismission that is Adulterous, but the Marriage of another. It is, therefore, the plain drift of our Saviour to teach the Pharisee, that the Marriage of a Second Wife after a Dismission of a Former, upon any other cause, ex­cept for fornication, is no less than Adultery; thereby inferring, That upon a Just Dis­mission for Fornication, a second Marriage cannot be branded with Adultery.

Besides, the Pharisee's Question [Is it lawful for a man to put away his wife for every cause] was not without a plain implication of Liberty to marry another; which our Saviour well knowing, gives a full Answer, as well to what he meant, as what he said; which had not been perfectly satisfactory, if he had only determined that one part concerning Dismission, and not the other concerning Marriage; which Clause, if Two Evangelists express not, yet it must be fetch'd necessarily from the Third; since it is a sure and irrefragable Rule, That all Four Evangelists make up one perfect Gospel.

The Rhemists and College of Doway urge for the Popish Doctrine, Rom. 7. 2. The wo­man which hath an husband, is bound by the law to her husband as long as he liveth. But

1. This place is to be Expounded by Christ's Words.

2. St. Paul hath no occasion here to speak of Divorce, but of Marriage whole and sound, as it stands by God's Ordinance.

3. He speaks of a Woman who is under an Husband; so is not she that is divorced from him.

4. St. Paul useth this to his purpose of the Law being dead, to which we are not bound.

Nor is their Doctrine more favoured by 1 Cor. 7. 10. Let not the woman depart; as being in her Choice whether she would depart or not: But in the Case of Fornication, she was to depart, or rather be put away, whether she would or not.

The Bond of the Marriage is to be enquired into, what it properly is. Being a Con­jugal Promise Solemnly made between a man and his Wise, That each of them will live together according to God's Holy Ordinance, notwithstanding Poverty or Infirmi­ty, or such other things as may happen during their Lives. Separation from Bed and Board, which is part of their Promise so to live together, doth plainly break that part of the Bond whereby they are tied to live together both as to Bed and Board: The di­stinction betwixt Bed and Board and the Bond, is new, never mentioned in the Scrip­ture, and unknown in the Ancient Church; devised only by the Canonists and the School­men in the Latin Church (for the Greek Church knows it not) to serve the Pope's turn the better, till he got it established in the Council of Trent; at which time, and never be­fore, he laid his Anathema upon all them that were of another Mind; forbidding all men to marry, and not to make any use of Christ's Concession.

Bed and Board, or Cohabitation, belong to the Essence and Substance of Matrimo­ny; which made Erasmus and Bishop Hall say, That the distinction of those two from the Bond, is merely Chimerical, and Fancy.

The promise of Constancy and mutual Forbearance, if it hinders Divorce as to the Bond, hinders it also as to Bed and Board; because the same Bed, and the same Table were promised in the Marriage Contract; but the Promise does not extend even to Tolerating Adultery, or Malicious Desertion; which, according to God's Ordinance, Dis­solves the Marriage.

Our Saviour speaks of Divorces Instituted by the Mosaical Law; but they were no other than Divorces from the Bond.

The Form of the Bill of Divorce, among the Iews was this, Be Expelled from me, and free for any Body else. To give the Bill of Divorce, is from the Hebrew Root [...], which is to break, or cut off the Marriage. With this agree the Ancient Canons, Councils, and Fathers of the Church.

Concil. Neocaesar. & Elib. forbid the retaining an Adulterous Wife. Concil. Eli­ber. Aurelian. & Arelatens. give Liberty in such Case to marry again. Clemens's Con­stitution, Tertullian, St. Basil in his Canons, approved by a General Council, are for Marrying again. Concil. Venet. If they marry in any other Case than Fornication, they are to be Excommunicated, and not otherwise. Concil Wormat. gives Liberty to the Innocent Party to Marry after Divorce. Concil Lateran. gives leave for the Innocent Party after a Year to marry again.

Concil. Lateran. If any one take another Wife while a Suit is depending, and after­wards there be a Divorce between him and the First, he may remain with the Second.

Lactantius, St. Hierom and Epiphanius, are for allowance of Marriage after Divorce. Chrysostom, Hom. 19. 1 Cor. 7. says, That the Marriage is dissolved by adultery; and that the husband, after he hath put her away, is no longer her husband.

[Page 3] Theophylact on the 16th. of St. Luke, says, That St. Luke must be interpreted by St. Matthew. St. Hillary is for marrying again, as Dr. Fulk saith upon St. Matthew the Vth. The Eastern Bishops, in the Council of Florence, are for marrying again. Iustin Matyr speaks of a Christian Woman's giving a bill of Divorce to a Dissolute Husband, without finding any fault with it.

St. Ambrose says, a man may marry again, if he put away an adulterous Wife; Theodoret said of a Wife who violated the Laws of Marriage: Therefore our Lord re­quires the Bond or Tye of Marriage to be dissolved.

All the Greek Church to this day allow it. Erasmus, Cajetan, and other Papists: The Civil Law, and the Laws of the Emperor, are clear for it: And the Constitu­tions of our own Church of England, in the time of H. 8. E. 6. and Queen Eliz.

The Practice of the English Church: In the Stat. 1 Iac. c. 11. against Second Marri­ages, Divorces are excepted; and in Canon 107. 'tis provided they shall not marry again; but it is not said such Marriages are void, only the Caution is forfeited: Neither doth the Canon speak of such Separations, wherein the Bond it self is broken, as 'tis by Fornication.

Even the Canon-Law allows marrying again, in case a Woman seek her Husband's Life; and in case of Bond woman. Gratian says, in the Case of Adultery Lawful Mar [...]iages ought not to be denied. In the Case of an Incurable Leprosy, it was the Advice of St. Gregory to Austin the Monk, That he that could not contain, should rather marry. Bellermin owns that the Bond of the Marriage of Infidels is dissolvable; but the Marriage of the Faithful, and of Infidels, is of the same nature: And Iustini­an, a Jesuit, confesses, that it is simply lawfull for the Innocent Party to marry again. And the Roman Doctors allow a dissolution of the Bond of Marriage, if the Parties should, after consummation, transfer themselves into a Friery or Nunnery.

The Canons which in the case of Adultery prohibit Marrying in the Life time of the guilty Person, are contrary to Two Acts of Parliament made 25 H. 8. and 3 & 4 E. 6. wherein no Canons are allowed that be any way repugnant to the Laws of God, Ref. Leg Eccles. Tit. de Adulteriis & Divortiis. or the Scripture, the King's Prerogative Royal, and the Statutes of this Land. 32 Persons were to review the Canon-Law, in which Review, drawn up by Archbishop Cranmer, the Innocent Person is permitted to marry again, according to Christ's Law and Concession.

We have examples of such Marriages in H. 4. of France, H. 8. of England, Lord Mountjoy, Lord Rich, Bishop Thornborough, and divers others. And it is observable, That in the Case of the Marquess of Northampton, 5 E. 6. who had been divorced for his Lady's Adultery, and married another before any Act of Parliament made con­cerning it, an Act which passed afterwards (only two Spiritual, and two Temporal Lords dissenting) declares he had been at liberty by the Laws of God to marry, and did lawfully marry another; Where the Act manifestly supposes, that whatever had ob­tained for Law till that time, was void, as being contrary to God's Law.

The most considerable Men of the Reform'd Churches both at home and abroad, are of this Opinion: Grotius quotes Tertullian, in whose time it was lawful for the Innocent Party to Marry.

Lancelot Inst. Iur. Can, acknowledges that Divorce is a dissolution of the Marriage.

Selden, who is not likely to contradict the Laws of this Kingdom, maintaineth, That Marriage after Divorce is to be allowed: And in that particular, Dr. Hammond doth not contradict him, but is clearly for it.

The Opinion of Amesius deserves to be set down at large: ‘Marriage, says he, can­not be dissolved by men at their pleasure; and for that reason, as it is considered sim­ply and absolutely, it is rightly said to be indissolvable; because Marriage is not on­ly a Civil, but a Divine Conjunction; and is also of that nature, that it cannot be dissolved without detriment to either Party: Yet it is not so indissolvable, but it may be dissolved for a Cause which God approves as just; for the Indissolvability was not instituted for a Punishment, but for the Comfort of Innocent Persons; and it ad­mits an Exception, wherein God ceases to conjoyn. By Adultery two are made not to remain one Flesh: hence it is, that a Contagious Disease is not a Cause of dissolving Marriage. By Adultery the very Essence of the Contract is directly violated; but the Contract ceasing, the Bond d [...]pending on the Contract necessarily ceases. It is against all reason, that all Matrimonial Duties should be for ever taken away, yet the Bond or Obligation to those Duties should continue. The words of our Lord, Matth. 5. 32. and 19. 9. have no distinction or limitation of the putting away, but simply and ab­solutely approve of putting away; therefore they approve of a putting away, not partial, or to a particular purpose, from Bed and Board, but Total.

None are against the Reformed Divines, but Dr. Howson, Mr. Bunny, and Dr. Prideaux.

Dr. Howson was a professed Adversary to Dr. Raynolds, who was a great Maintainer of the Church of England against all the Points of Popery, and particulary in thi [...] [Page 4] Dr. Taylor, Bishop Hall, Dr. Fulk, are for Second Marriages; no Authors against them but the Council of Trent, and those of the Church of Rome; whose Cre­dit is only saved by those of our Church who agree with them.

Upon the difference of Explication between St. Ambrose, Origen, and St. Austin, a new kind of Divorce has been thought of, from Bed and Board; but this Divorce, or Name of a Divorce, was unknown to the Iews and Ancient Christians.

I said so much before, at the First and Second reading of this Bill, that I was in good hopes to have had no further occasion given me of answering any Objections against it now; but seeing divers new Arguments have been studied and framed against it since that time, I shall now endeavour to satisfie and clear them all.

1. The First Argument against it, is, That the Separation from Bed and Board doth not dissolve the Bond of Marriage. To which I must Reply, as I did before, That this is a distinction without a difference; newly invented by the Canonists and Schoolmen, and never heard of either in the Old or New Test [...]ment, nor in the times of the Antient Fathers, who accounted the Separation from Bed and Board, to be the Dissolution of the Bond it self.

2. That first Institution of Marriage, that they may be one Flesh, is by Adultery dissolved, when the Adultress makes her selfe one Flesh with another Man; and thereby dissolves the first Bond of her Marriage.

3. The Objection, that if the Bond be dissolved, and afterwards, if the Man or Woman be reconciled, they must be Married over again, is no necessary Consequence, no more than 'tis in a Person baptized, who may break his Covenant, and renounce his Baptism; and yet upon true Repentance be received into God's Favour by virtue of the first Covenant, without any new Baptism. Suppose a Witch, who they say makes a Compact with the Devil, to renounce her Baptism; should afterwards, by the Grace of God, seriously and truly Repent her self of the Wickedness; I do not be­lieve that any body would take upon him to Baptize her again: and if a Priest should renounce his Orders, and turn Turk, and yet afterwards repent him, and return into the Church; he need not be Re-ordained a second time. The Case will be the same in Marriage.

4. I said heretofore, That the Roman Doctors allowed this Dissolution of the Bond when the Man and Wife, even after the Consummation of Marriage, would transfer themselves into a Friary, or a Nunnery: but because it hath been since doubted, that no Authority can be shewed for this particular, I shall here shew it out of the old Con­stitutions of the Church of England.

‘And in the Case of Religion,Prov. Will. Lindewode, five Const. Ang. fol. 94. Ver. nul. late­nus Separen­tur. that is the true understanding, that to wit, either of them betaking themselves to Religion before Carnal Knowledge, the Bond of the Marriage be dissolved: but if both enter into Religion, and make solemn Profession, then such Marriage is dissolved, even as to the Bond.

5 It hath also been said, that if the Bill pass, it will pass against the Church of Eng­land: which I confess, I do not understand: For the Church of England is within the Kingdom of England; and if the Laws of this Kingdom be for the Bill, and have de­clared it by the Assent of the King, Lords, and Commons, as in the Case of the Marquis of Northampton, was heretofore declared in the time of King Edward the 6th. That by the Laws of God the Innocent Party was at liberty to Marry again; Certainly the Spiritual Lords, as well as the Temporal and Commons, are bound to admit it: and I know not why they should be called the Church England, that joyn with the Council of Trent, and plead so much to uphold it; rather than others that joyn with all the Reformed Churches, and plead against that Canon of the Church of Rome, which hath laid an Anae­thema upon us, if we do not agree with them.

As to the supposed Inconveniences that will follow upon Marrying again,

1. More Inconveniences will follow if they be forbidden to Marry again.

2. The Father would be in an uncertainty of the Children, if he should retain the Adulteress.

3. There would be danger of poysoning or killing one another, if no Second Mar­riage were allowed.

4. Where the Parties should consent to new Marriages for their own Lusts, the Magistrates have Power to over-rule such Practices.

5. If they be kept altogether by Divorce from Marrying, it would occasion the Innocent Party to Sin.


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