A Treatise concerning adultery and divorce

A Treatise concerning adultery and divorce

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Title page

A TREATISE CONCERNING Adultery and Divorce.

A TREATISE CONCERNING Adultery and Divorce.

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ADULTERY is, say the Etymologists,a the going to another's Bed: and St. Augustine defines it to be ab Breach of the Marriage-Vow; A Crime so black,Refor. Leg. Eccl. Tit. Adulter. c. 1. that our Constitutions call itc horrible Baseness;d and a Sin so abominable in God's sight, that he could not find a fitter word than this to express Idolatry by in the Holy Scripture:Art. Visit. Lond. Tit. 4. n. 3. And Our Church is so industrious and careful in the [Page] discovery of it, that it is one Article in the Episcopal Visitations, Whether any have committed Adultery, Fornication, &c. or are vehemently suspected of the Premises?

The Punishments inflicted on it all over the World, partly shew how much it is detested. By the Levitical and Civil Law of Moses it was rewarded with Death. The Hungarians use that Punishment; the Father forcing his Daughter, the Husband his Wife, and the Brother his Sister to the Place of Execution.Heylin. And among the Turks, the Offending Woman is sentene'd to be Drown'd, and the Man Dismembred. The Babylonians, Arabians, Tartars, Indians, Iavans, Brazilians and Mexicans also made it capital; so did the ancient Imperial Laws: but latter Ages are contented with Confinement and Whipping; and the Ecclesiastical Canons prescribe Excommunication. By a Constitution of the Church, in the time of the Saxons, such lewd persons were compared to Murderers, and equally denied Christian Burial. And there was a Law about the Year 1032, whereby the Adulteress was to lose her Nose and Ears. St. Paul saith, No such person shall enter into the Kingdom of God: [Page] and as to this World, the Gospel allows us to put her away, Matth. 5. 33. and c. 19. 9.

If instead of Allowance I had said Precept, I think I might do it with more reason than St. Mark had to call the Bill of Divorcement [...], when it was only an Indulgence wrested from Moses, because of the hard hearts of the Iews, who otherwise might have murdered their Wives, if they had not had leave to part with 'em. They were a stiff-necked people, as God himself often called them, inclined to slaughter, saith St. Chrysostome, filling their Houses with Relations Blood, and sparing neither their Neighbours Families, nor their Own. On this Consideration it was, we find that permission, Deut. 24. 1. When a man hath taken a wife and married her, and it come to pass she find no favour in his eyes, because he hath discovered some uncleanness in her; then let him write her a bill of divorcement, and give it into her hand, and send her out of his house—If he did not like her, he might dismiss her. The ground of this dislike is said to be some uncleanness, or matter of nakedness; which cannot mean Adultery, because Adultery, if proved, was punished with Death, as I said; and if [Page] only suspected, the guilt of it was determined by the Water of Iealousy, Numb. 5. 27. The word therefore must signify something disagreeable in her Person, Humour, or Actions, which the Husband could not digest, and thereupon desired to be rid of her, as Mr. Ainsworth and A lapide conceive, who cites Origen and Chrysostom for this Interpretation; and the Assembly of Divines explain it of the Leprosy, or some other bodily disease and blemish; and in general, any thing else to make the Husband loath her. This fully appears in the practice of that people, who thought it a good Foundation to build a Divorce on, if the Wife were sterilis, deformis, rixosa, morosa, barren, ugly, peevish or disagreeable: and in the words of Siracides, Eccl. 25. 29. If she did not go as her Husband would have her, he cut her off from his flesh, and gave her a bill of divorce, and let her go: As it is said of Iosephus, That he dismiss'd his Wife, because he did not like her Manners.

This, doubtless, was straining the Point too far, to make the uncleanness depend more on the imagination or prejudice of the Man, than on the Wife's ill conduct, or whatever else of [Page] like nature she was chargeable with. Yet we have not these Examples in Iudaea alone, but in other Countries also, where Men pretended to more Civility and a better Temper. Q. Antistius, a Noble Roman, Divorced his Wife for talking familiarly cum libertina. C. Sulpitius used his Wife in the same manner, because she went abroad without her Veil. Another did the same, propter praetextum sterilitatis, on pretence of Barrenness; which was an Objection his Wife could not help, and not her fault, but misfortune. P. Sempronius, because his Wife went to a Play without his knowledge, put her away. Iulius Caesar dealt so with Pompeia, Quia mala laboraret fama, being suspected to have to do with Clodius. But M. Tullius acted on much slighter Reasons; and, Levibus de causis Terentiam dimiserit. And Augustus outdid 'em all in this matter, for he could except nothing against Scribonia, but that he was weary of her. I omit Montanus, the Cataphrygae, Pepusiani, Ebionitae, Massalini, and Others in Church-History, who took the same liberty. And we read of an Ecclesiastical Law in Wales, Circa 940, which made it a sufficient Cause of Divorce, if a Woman Kissed any man besides her Husband.

[Page] In all these Cases, I must confess, the Conjugal-Knot was not look'd on so sacred and strong as it ought to have been: And therefore our Christian Lawgiver corrects these Abuses, and puts every one in mind of the Nature of Marriage, which out of two makes one; and so strictly unites 'em together, that after this Union they are not two, but one Flesh. This was it God intended in the first Institution, to which Christ called back the Iews; and then added, What God hath joined together, let no man put asunder.

But though this Language shows what a close conjunction Matrimony makes between a Man and his Wife, which is not rashly, or, quâcunque de causâ (as the Jews said and did) to be dissolved; yet plainly our Lord's reproof of the Pharisees is not to be taken absolutely, as if nothing in the World could disjoint these two persons; but relatively, and with respect to them he was disputing with, and in opposition to those Reasons they went upon for their frequent Divorces. I say unto you, Whoever shall put away his Wife, except it be for Fornication, and shall marry another, committeth Adultery, Matth. 19. 9.—So that the [Page] instance excepted is a sufficient Cause of putting away the Wife, though the Text will not admit of any other. For though a Rule or Law is universally binding, where no Clause is inserted to provide for particular Cases; yet whenever such provision is made, the exception is safe, and as strong in its sense as the Law is in the other quite opposite to it; for so we usually speak, Exceptio ponit contraria in casu excepto. And therefore though in the general, it is not lawful upon any pretence to lay aside one's Wife, saving for the cause of Fornication, Matth. 5. 33. this saving infers, That though no Reason besides this has force enough to dissolve Marriage consummated, yet this must be allowed a sufficient Reason for it, or else the Exception was in vain.

They say St. Mark and St. Luke have omitted this Exception, and thereby signified the little Stress to be laid on't. But we answer with St. Augustine, That the Four Evangelists doa supply one another; and where one omits, the rest make it up to compleat the [Page] Gospel. St. Matthew is copious, and full in the Matters he treats of. St. Mark (as St. Ierome calls his Book Epitomen Evangelii à Mathaeo scripti) giving only an Abstract of St. Matthew, he industriously let go many particulars, which however must not lose their Evidence, because he past 'em. This is the usual way of Abbreviators. But then it cannot be imagined that Short-hand is plainest, or best adapted to every Reader's capacity: Or that St. Mark should speak more intelligibly without the Exception, than St. Matthew with it; especially considering He was one of the Disciples present at this Discourse with the Pharisees, and so had better opportunity to know his Master's meaning. The Rule is, Pauciora exponi debent secundum plura, & regula generalis per exceptionem alibi traditum est limitanda. And this shews, how S. Mark and S. Luke are to be understood in this affair.

But for further light, let us reflect on the Occasion of these words, and debate the Question in this short Dialogue between the Pharisees and Christ.

[Page]Pharisees.

Is it lawful for a Man to put away his Wife for every Cause?

Christ.

No; for Marriage is Copula indissolubilis, an indissoluble Tie; and by it two are made one flesh.

Pharisees.

Why did Moses then Command to give a Writing of Divorcement, and to put her away? This proves it Lawful.

Christ.

Moses, because of the hardness of your hearts, suffered you to put away your Wives; but from the beginning it was not so. You confound the Laws concerning Marriage, or rather propose a Toleration instead of a Law. The Question between us is not de lege Forensi, of a Municipal; but de lege Morali, of a Moral Law; and concerning the Sense of the Institution of Marriage immediately after the Creation. The former indeed permitted Divorce, because of your Cruelty to your Wives; but still with respect to Conscience, [Page] you cannot safely use that liberty, for it is a Sin against the latter Law; and be well assured, that though Moses doth not punish, yet God doth not approve it.

Pharisees.

Do you deny then all Causes of Divorce?

Christ.

No; I except what the Law punishes, and ought to punish, as a thing in its own Nature not to be reconciled to the notion of Marriage; I mean Fornication, which makes it impossible for the Man and the Woman to continue one Flesh any longer: And if at any time the Penalty of the Law be not exacted in this Case, yet the Party guilty by that Act of Uncleanness voids the Obligation, forfeits the Interest she had in her Husband, and by joining herself to another, becomes Morally dead to him to whom she was united before. So that, I say unto you, Whosoever shall put away his Wife, except[Page]it be for Fornication, and shall marry another, commitetth Adultery; and whoso marrieth her which is put away, doth commit Adultery.

Can words be plainer? Nothing but Fornication can untie the Marriage-Knot, and make Divorces innocent. Fornication therefore is a just Ground and sufficient Warrant for so doing; or else what sense is there in these words? and what End could Christ have in making the Exception? So that in this case, and upon this account, whenever there is a Divorce, it is not Man, but God parts 'em. No; Homo non separat, quos poena condemnat, quos reatus accusat, quos maleficium coarctat. The same Authority which made 'em one flesh, dissolves the Union; and because of Fornication, makes 'em two again.

It is said, Ex matrimonio duo sunt facti una caro: and the Insinuation is, That nothing can divide'em, but that which disjoints Soul and Body, the Death of either Party: And this is true in the main. But the Case of Adultery shakes the Proposition; and the Wife who goes astray, by the Carnalis copula, becomes one [Page]flesh with the Fornicator, as he that is joined to an Harlot is one body with her, as St. Paul speaks, 1 Cor. 6. 16. So that the Vinculum conjugale is hereby dissolved, because it is not to be conceived how She can be one with her Husband, and with the Adulterer too, for the Apostles Reason immediately following; wherein he asserts, that only two can be one flesh. I spake in the Actual Tense, and said, It is dissolved, though not literally done; but there is the Cause of dissolving it; and if a Man will not use his Right, and lay hold on the Forfeiture, 'tis his own fault, and he will be much to blame. I call it his fault, because he who Celat crimen uxoris, conceals his Wife's fault, makes himself Turpitudinis patronum, a Patron of her Lewdness: And herein I am of St. Chrysostom's mind, or whoever else is the Author of the imperfect Work; That as it is a cruel and wicked thing to put away a chaste Wife, so he is a Fool that will keep an Whore.

An Husband may, if he please, Cedere de jure suo, and forgive an unclean Wife: but Calvin's Judgment I take to be safer, To cleanse his House and Bed of so gross a defilement, and be rid of her and her Sin together. And [Page] hence the word repudium has its Name, Recusatio propter rem pudendam; and I think a Man ought to be very careful how he is accessory to any thing that will bring him shame. This is one Reason they usually give for Divorce; namely, To secure our own Integrity and Honour, and keep off the suspicion of being privy to the Sin. And I must not omit another of very great Consequence, and that is, prolis incertitudo, uncertainty of the Issue; which, without a Contradiction, brings Bastardy into Wedlock; because though it be a Rule in Law, that, Pater est quem nuptiae demonstrant, He is the Father who is Husband to the Wife; yet in foro Conscientiae, the Court of Conscience, perhaps the Man, to be sure the Wife, is convinced to the contrary: And for my part, to speak in the way of Morality and Religion, I find no difference between these two Bastards, but that the one is really, and the other legally so. And on this account it is, That although the Sin of Adultery is very great both in the Husband and the Wife;a yet, as to the Issue, the Wife is much more [Page] blameable: And it must be consider'd, that the Wife's Incontinency ruins the Family of her Husband, who leaves in his spurious Issue nothing but the Name, and conveys to Posterity not one drop of his Ancestors Blood to continue the Relation between 'em.

We may observe at the Office of Matrimony, in the Exhortation to the Young Couple, the Minister requires and charges them both, That if either of 'em know any Impediment why they may not be lawfully joined together, that they confess it: For, saith he, be well assured, that so many as are coupled together otherwise than God's Word doth allow, are not join'd together by God, neither is their Matrimony lawful. So that in Marriage there is a conditional Contract; Neither doth God so join the Man and the Woman together, but that they may be parted, if there be a just Reason for it; and in case of such Impediment, their Matrimony is not Lawful. Fornication, I confess, is in this Question a subsequent Act, and is not called an Impediment; but they differ only in point of Time; and if the Impediment keeps the Knot untied, notwithstanding the Ceremony is pass'd [Page] upon them; why, if once effectually tied, should not Adultery have the same strength to undo it? The Tie consists in this, That they two are made one flesh: But if the Adulteress alters the property, and becomes the Flesh of another Man, in this case she dissolves the Bond with respect to her Husband, and is no longer one flesh with him. Solvitur carnis unitas, nefariè rumpitur conjugalis fides & peccatur contra ipsa matrimonii substantialia. So that if the Gospel had been silent in this Cause of Divorce, yet not forbidding it, it must be understood from the very Nature of the Conjugal-Union, which supposes neither Party alienated in Affection or Duty, as one of them must needs be in case of Fornication. This Union, I say, being the very Essence of Matrimony, the Name is lost, when an Act is done which divides one Party from the other. However, the Gospel of Christ doth allow it, and lays as great a stress on it, as the Church can on any other Impediment whatever; which being proved, makes the Matrimony unlawful.

If it be Objected, That the mutual Troth given each to the other, before the Minister, [Page] runs in this Form of Obligation, That the Husband takes the Wife, and the Wife the Husband, for better, for worse, till Death parts them.

We Answer: 1. These words, for better, for worse, do not imply an irreligious or immoral Sense, (for this amounts to such an Impediment as our Church proposes to make Marriage unlawful;) but their meaning is determin'd by the following Clauses, For richer, for poorer, in sickness, and in health. a If she be a scold, peevish, prodigal, clownish, drunken, ugly, a fool, troubled with a thousand such defects; which are very ill qualities, and such as makes Solomon confess, That it is better to dwell in the Wilderness, than with a contentious, angry Woman, Prov. 22. 19.b If the Wife be barren, sickly, blind, lame, or deaf; or if you can think of any thing else, saith St. Augustine, except Fornication. And accordingly the Rule of the Law is,c Adverse fortune, if there be [Page] no fault, is patiently to be born in Matrimony. And so Aristotle concurs in his Oeconomicks, and saith, It becomes a Wife to acquit her self well towards her Husband, not only in a good, but a bad fortune: and should his Estate suffer by ill chance or mismanagement, or his body by sickness, or his mind by phrenzy, she is to bear the affliction cheerfully, and retain the same respect and affection she had for him before. And the Rule in this Case is, Quod semel placuit, displicere non potest; meaning, non debet.

2. Till Death us do part. Doth not conclude a simple Obligation, from which there is no release, until Death makes it; because the Lord Christ pronounces Fornication to be a sufficient reason to break the Bond, and dismiss the Wife, if she be found guilty; but refers to the Qualities or Circumstances of the Wife in the words before; which though bad enough, are no legal incapacities for Cohabitation; neither is the Wife thereupon to be discharged from her Husband without her own consent, who either must keep her at home, or otherwise provide for her. Besides, This period of the Obligation is grounded on the antecedent Supposition, That the Woman [Page] forsakes all other Men, and keeps only to her Husband as long as they both shall live. And this Promise being observed, the Bond is not cancelled till Death doth it. But if the Wife forsakes her Husband, and keeps company with others, the Condition is broken, and the Motive ceases on which he married her. For the Condition of this solemn Engagement was, That She forsake the rest of Men, and be from thence-forward entirely his own.

Lastly, The Marriage-Vow, however worded, is to be taken according to God's holy Ordinance: But the Ordinance of God, with respect to Marriage, is, To make of two one flesh; yet with this Caution and Proviso, That there be no Fornication; for if so, the innocent Husband has a power left him to put her away. So that the same Ordinance which makes the Obligation, allowing this liberty, Though where Fornication interposes not, the Husband and Wife are to keep close to one another as long as they live; yet where Either transgress, there is a remedy left; and if the Woman will offend, (and perhaps in a daring, bold way, void of all shame, and in defiance of her Husband) without doubt [Page] the Husband in this Case may lay hold of the Forfeiture, and as soon as he pleases send her away.

And truly otherwise the Case of the Husband would be very hard, Quod inducitur in favorem alicujus, should, facere ei prejudicium, as they say: That a thing intended to ease the burden, should add more weight to it. The Causes for which Matrimony was ordained, we have in the Exhortation to the Couple going to be married, which are designed for the Comforts of life, and not to be plagues to one another. We do not serve an hard Master. He considered our condition, and of himself said,Gen. 2. 18. It is not good for man to be alone, I will make him an help-meet for him. This was the Motive he had to produce Woman, and did it out of him who was to be her Husband, to let her see how near the Relation is between 'em, and how she ought to cleave to him. This he did as Creator; and then as a Law-giver, he instituted Marriage to confirm their mutual Indearment; that as in their Original they had one beginning,Ver. 23. [Bone of my bones, and flesh of my flesh, saith Adam;] so the Ordinance was contrived to unite 'em [Page] by Consent, and engage 'em into a voluntary Promise to love each the other. And because he foresaw it would sometimes otherwise happen, and there be a Violation of Faith, though never so solemnly given, he appointed a remedy, a severe, terrible one, no less than Death it self, to signify the Violence done this Union of two Bodies, which he would have us look upon full as strict as between Body and Soul, not to be divided till Death parts 'em. 'Tis true, the Clemency of the Gospel interprets the Punishment now into no more than putting her away; but then this is a Moral death to the guilty Party, and it lies in his Breast who is thereby injured to put it in Execution, as soon as he shall think fit to do it.

Ay,Obj. but this rigour may be thought not to consist with the Patience and Sweetness of our Christian Profession.

I must acknowledge,Ans. That Charity suffers long, and is kind: But the same Charity doth not behave it self unseemly. Non patrat quod pudendum est, saith the Syriack, [...], doth nothing foedè or inhonestè, as certainly a Man must do who keeps an Adulteress in his Bosom, and by a wicked Indulgence contributes to her Sin.

[Page] The Instance of the Adulteress, whom Christ no otherwise punishes than by bidding her go and sin no more, John 8. is answered by that Rule of the Law,a That an Act of Grace ought to be no Example to Criminals: Besides, if this passage be well considered, What Christ did was as much an Act of Iustice as Mercy; and though he did not condemn, yet he did not expresly forgive her. Neither do I condemn thee: Nor indeed had he reason to do it, for he acted judicially in this case; and if the Evidence withdrew, and would have no hand in the stoning of her, what could he do otherwise than to discharge her? discharge at least the Punishment at this time, though he did not fully and simply absolve her. At most this treating her with so much Clemency, only inclines Husbands to be merciful and tender, but obliges not: And though Men may forgive this Offence in their Wives, if they see good; yet if upon Reasons of Discretion and Safety they do not, 'tis no Sin at all, no pinching upon Conscience to use 'em [Page] as they deserve; and in that manner the Gospel allows it.

That David took Michol again, though married to another Man, is nothing to the purpose; because this was no Adultery in Michol, who had no design to leave David; but being young, she was forced to accept of Phalti, the Son of Laish, at the Command of Saul, her Father and King. And therefore David considered this Act in her (as indeed it was) a matter of Constraint; and so without much scruple receives her again.

These and some other such Reasons St. Augustine presses, and saith, Adulteram nec posse nec debere repudiari, sed partem innocentem de jure teneri ad reconciliationem. The truth is, St. Augustine was a very compassionate and tender-hearted Man, sensible of his own faults, and ready to retract 'em; so that he was naturally led to argue for Reconciliation on any occasion, and almost on any terms; neither could he tell how to put off a Penitent without forgiving him. And it is good Doctrine in the general: But his Master St. Ambrose never taught him this Lesson in particular. For as this Father asserts three Causes [Page] for a Man to part with his Wife, so he makes the first and principal of 'em to be Fornication. St. Ierome, who, as he could not agree with St. Augustine in other Points, so he is directly opposite to him in this; and avouches, Adulteram nec posse nec debere retineri, That an Adulteress neither can nor ought to be taken again. Nay, he goes farther, and saith, That not only ubicunque est fornicatio, where there is Fornication, but fornicationis suspicio, suspicion of it, Uxor dimittitur, the Wife is to be dismiss'd.

And as for Reconciliation, I think Bucer's Conclusion unanswerable; Who reflecting on that Law in Deuteronomy 24. 2, 3. concerning the Bill of Divorcement, whereby leave is given the Woman to marry another—If this Second Husband should either die, or hate her likewise, and so give her another Bill, the First Husband must never receive her again, for this reason, Because she is defiled—and that's an abomination unto the Lord, v. 4. Now, as that Author argues, if she be polluta, who was not only married to this second Man, but did it by her former Husband's permission, and [Page] was justified in it by Law: If, I say, notwithstanding this Allowance, she was so polluted by this Second Marriage, as to be made ever incapable of being re-married to the First Husband; much more polluted must that Woman be, who has committed Adultery against both the Law, and her Husband's Will: and unfit is she either to be retained, or in case of departure to be received again. No; David's Resolution is a good Precedent in this Case: There shall no deceitful person dwell in mine house; the party that telleth Lies shall not tarry in my sight. I will not dwell with vain persons, neither will I have fellowship with the deceitful. I hate the Congregation of the wicked, and will not sit among the ungodly. And all this not barely as a Duty, but in point of Safety; because evil communications corrupt good manners; and though with the clean I may be clean, yet with the froward I may learn frowardness. And therefore to secure our own Innocence, we are bound to shun them who are Enemies to it.

But what saith the Prophet? Obj. Take heed to your spirit, and let none deal treacherously against [Page] the Wife of his youth; for the Lord God of Israel saith, That he hateth putting away, Mal. 2. 16, 17.

No doubt but God hates it,Ans. when a Man deals perfidè and iniquè with his Wife, and when he causelesly leaves her, and not She him. Here was no crime of Adultery charged; no fault, but that the Husband liked another better. As matters thus stood, no wonder is it that God hated such putting away. God, who was a witness between him and his Wife, v. 14.—yet he ventures to break the Matrimonial-Covenant, made in the Presence of God, who being a God of Judgment, he could not be thought to delight in such a Man.

Well, the Apostle is express, Obj. 1 Cor. 7. 10, 11. Unto the married I command; yet not I, but the Lord; Let not the Wife depart from the Husband, and let not the Husband put away his Wife— And elsewhere he allows no remedy, no release but Death, Rom. 7. 2, 3.

[Page] But as to the words of St. Paul in those two Epistles,Ans. answer is made, That to speak of Matrimony in it self, or as it is in its first Institution; and as it is abused, or with respect to those Crimes directly against it, is very different. It is one thing to propose what is regularly and ordinarily done, according to Law; and another, what happens in extraordinary Cases. What the Apostle saith in these Chapters, is to be taken regulariter, and not in casu. The ordinary Tie of Marriage lasts unto Death; and then, and not till then, it is dissolved. But Fornication or Adultery dissolves it sooner. So that the Holy Man discoursing here of the Nature of Marriage, and not of the Nature or Causes of Divorce, is not engaged in this dispute; and citing him on this account, makes little to the purpose. The Interpreters of these Passages deliver themselves warily: Let not the Husband put away his Wife—What? Upon no account? Yes, but let it not be done exceptâ causâ fornicationis, say Primasius and St. Ambrose. Non sine justâ causâ, saith Chemnitius, who supposes an Ellipsis in the Expression. Nisi sit legitima causa; [Page] so Marlorate. But when there is just cause, that is, in case of Fornication: Hammond. It must not be ultro suoque arbitrio, and without legitimâ praeeunte cognitione, &c. saith Beza; not arbitrarily, and without a lawful provocation. And this Author calls them ineptissimos, who from this Text would infer, That there can be no Divorce, no, not in the Case of Fornication; Contra manifestè expressam à Christo adulterii exceptionem, are his words. Non sine gravi & justa causa; A lapide. Exceptionem quam Mathaeo referente dominus expressit— hic subintelligas; Estius. The Assembly of Divines name not the Exception, but they refer to St. Mathew, both as to the Chapters and Verses, where notice is taken of it; and their meaning is, That we are to supply from thence what is omitted by St. Paul. Calvin indeed wonders why he did not except Adulterii causam; but what Reason was there for him to mention the Exception, when the drift of his discourse did not lead him to it?

But Marriage is said to signify to us the mystical Union between Christ and his Church. Obj. Now as there are many Offences done against [Page] him, which he forgives his Spouse; so ought we to be Followers of Christ, and of God, as dear Children: Be merciful, as our heavenly Father is merciful; and we ought to forgive, as we desire to be forgiven. Christianus est Christi imitator. Aug.

And questionless this Divine Example is good,Ans. and we ought to imitate it. Ut sicut ille agit cum Ecclesia, sic nos agamus, cum conjuge; though the Case be different, yet God forbid we should do otherwise. But be it remembred, That though God is patient, gracious, and kind, yet he has been provoked to give a Bill of Divorcement to his best-beloved People. And of this the Iewish Nation is an undeniable proof, with the Seven famous Churches of Asia, which have their Candlesticks removed, and are at this day overwhelm'd with Mahometan Darkness. God's forbearance teaches us to do as He did, bear with many faults; but thorough-Apostacy is too black a Sin to expect so much Tenderness; and Adultery too gross to be pardon'd at all, or easily done.

[Page] I am no more for this kind of Separation, quacunque de causa, after the practice of the Iews, than I am for falling under the Censure of Mecaenas, who was taxed of very great Inconstancy and Lightness, because he parted with his Wife more than once, and received her again. For if her Faults were small, the Usage was too severe to turn her out of doors; but if so notorious as to oblige him to it, 'twas an unaccountable Fondness and Easiness to re-admit her.

The Law takes notice of many Causes of Divorce, besides the gross One of Adultery. Consorting with, or entertaining Wanton Company against the Advice and Will of the Husband; Practising, or Consenting to Practices against his Life or Health; Lying abroad without his Knowledge, and without any just Reason for it; Going against his Will to Plays, or other suspected Places; Morbus contagiosus; and some other like Causes, which must needs make a Virtuous Man very uneasy, his Life comfortless, and his Expences perhaps beyond his Ability. Any of these are great Provocations. All of 'em together who can bear? Especially when Adultery consummates [Page] 'em; Adultery publickly known, talk'd of, and made the common Subject in every private House and Tavern; and, which is a very sad Aggravation, when the concern'd Party glories in the Lewdness, and with the Harlot in Scripture, wipes her Mouth, and saith, All is well. The Sin in secret is bad enough; And if a Man be so good a Christian, has so much Affection and Patience as to caution, intreat, admonish, earnestly seek and persuade Amendment, and all to no effect, but the Wife will run on in her ill way; and not only so, but laugh at, flout and threaten her Husband, and (whereby her Tongue is indicium malae mentis) maintain Doctrines which necessarily call his Safety into question, in case he uses his Authority and Power to reclaim her at home; and, in a word, have so little regard to her self, or him, as to make the Crime become a scandal to all the World; What then remains in this Extremity, but to take the Example of God; Let her be gone; give her wholly up to her vile Affections, the Lusts of her heart, and all manner of Uncleanness.

[Page] Yet I am not against Repentance. I remember what the Church saith,a We earnestly wish that the innocent person would pardon the guilty, and take her to him again: but then it must beb when there are apparent hopes of amendment. But, alas! how will this appear? Can a few words, extorted it may be from Necessity, or the importunity of Friends, be called Indications or Expressions of a penitent Heart? Res magis intuenda quam verba; Repentance is grief of mind for Offences committed: It rigorously chastises what is done amiss: It always punishes the crime; and hence it derives its name: Poenitentia à poena, or qua⟨si⟩ punientia; and if it be sincere,c either equals or exceeds the crime, saith St. Ierom. The Publican smote on his breast, and said, Lord, be merciful to me a sinner. And the true sign of Repentance is a thorough change, a real reformation. I take all this to be a work of [Page] Time.a The Council of Ancyra determin'd Seven years Repentance: The Thief indeed did it in a few moments; but his life was short, and on that account the Divine Grace the stronger.

Besides, Restitution is one necessary part of Repentance. But how? which way shall this be expected? when, as St. Ierom speaks, it must puzzle Omnipotence to bring it about; and though God can do every thing, I am bold to say it, He cannot restore Chastity when a Woman has lost it: And who will go about to propose an Equivalent for an inestimable Loss, never to be recovered?

You will say, We are to accept such Restitution as the nature of the thing will bear; that is, an hearty sorrow for what is past, and amendment for the future. Neither do I deny, but these are good fruits or proofs of Repentance, and may be a means to save the Sinner in the other World, yet are not a proper Restitution in this. The Murderer, [Page] the Traytor, the Felon, has the same Plea; yet they must bear the present Punishment of the Law, and suffer now, tho' saved hereafter.

But how shall an Husband be convinced of such a Repentance?a Once bad, and ever so, say the Lawyers upon very good grounds. For though it be possible for a Man or a Woman to become penitent, yet we ought to have as good Proofs to demonstrate their Repentance, as we had Overt-Acts before of their being Criminals.

For my part therefore, I thinkb 'tis dangerous to attempt Reconciliation after Adultery: And one Reason is, Becausec the Wound is apt to bleed afresh; and the Wound ought to be well and leisurely healed, before we hazard the rubbing it. The innocent Party may perhaps be thought hard of in this Case: But P. Aemilius's Answer ought to satisfy unbiass'd People; who being [Page] found fault with for putting away a beautiful Wife, excused himself thus:a No body knows where the shooe pinches but he that wears it. It appears by this, That the crime of his Wife was somewhat secret: and as such, I believe it one Testimony of his Kindness to her, That he rather suffer'd the People's Censure, than in his own Vindication to expose her Nakedness. And in other Cases, where the Publication is made already by her own folly, I take it for a piece of Affection in the Husband not to divulge it further, or load the Vice by being particular in all the Aggravations of it.

And if at length the Husband will be melted, and is contented to pass by all Provocations, he may, and there is no injury done him: Scienti & consentienti non fit injuria. But it behoves him to consider well what he is about; He ought to enquire, Whether it will consist with his Happiness, his Reputation, and other Conveniences of Life to do so: Whether it be agreeable to Conscience, [Page] and the Duty he owes God and Religion, to give this countenance to a Crime of that nature; and whether he can find any great difference between cohabiting with an Adulteress, or an Harlot who is vicious through Necessity, and has not Bread to eat without it.

I have avoided the Citation of Councils and Laws, to keep my self from being tedious. But, in short, some of 'em allow second Marriage upon the Reasonableness of the thing it self, which St. Paul favours, 1 Cor. 7. 9. Others reject it for its ill consequence, as tempting people to be weary of the first: which indeed is no reason; for a distinction is to be made between a real and a feigned Cause; and if, on this Indulgence, Men may be tempted to bribe Evidence against their Wives in order to be rid of 'em, so may such Evidence take away Lives and Estates; and the Danger is full as great in the one Case, as in the other. However, for putting away, they generally agree in that; and where we read some Canons seemingly against it, they must be understood absque causâ, and in unlawful Cases: As Canon 48. Apostolorum; [Page] which Excommunicates him who puts away his Wife: This is meant, saith Balsamon, if it be done [...], without Cause. And Zonaras Expounding the same Canon, has these words,a Let the Husband send her packing.

And for Fathers, they consider Fornication a just Cause to dismiss one's Wife: And those who oppose second Marriage, do it on a principle of Tenderness, and to leave room for a Reconciliation after a serious and approved Repentance; which if the Husband, for Reasons best known to himself (and of which he is the proper Judge) will not accept,b Let him use his right, for he doth no one wrong in it: And though thereby he may seem unkind to his polluted Wife, yet he cannot be said to be unjust to her, but she has been so to her self and him.

And this principle of Tenderness I take to be the Motive for those Distinctions or Degrees of Divorce; à thoro, à mensa & thoro, [Page] à vinculo matrimonii; the two first being intended in a way of opportunity to make their peace with one another; whereas the last bars the door, and parts 'em both for ever.

FINIS.

Notes

a

Ad alterius torum accessio.

↵

b

Fidei conjugalis violatio.

↵

c

Turpitudo horribilis.

↵

d

Et res Deo tam odiosa.

↵

a

Mutuas operas tradere, & quod unus brevius & obscurius posuit, illud alter suppleat & clarius explicet.

↵

a

Quantum ad bonum prolis plus peccat adulterium uxoris.

↵

a

Si sit jurgiosa, petulans, prodiga, rustica, ebria, deformis, stulta, & aliis mille vitiis molesta.

↵

b

Si uxor sit sterilis, debilis, caeca vel clauda, vel surda, vel siquid aliud cogitari potest, excepta fornicatione.

↵

c

Fortuna afflicta, si absit culpa, patienter in conjugio ferenda est.

↵

a

Quod alicui gratiosè conceditur non debet ab aliis in exemplum trahi.

↵

a

Vehementèr optamus ut integra persona damnatae veniam indulgeat & illam ad se rursus assumat.

↵

b

Si credibilis melioris vitae spes ostendatur.

↵

c

Aut aequat crimina, aut excedit.

↵

a

Septem annis poenitentiam agat. Concil. Ancyr. & Wormac.

↵

a

Semel malus semper presumitur esse malus.

↵

b

Periculosum post commissum adulterium inter conjuges tentare reconciliationem.

↵

c

Vulnus subinde recrudescit.

↵

a

Neminem scire qua in parte calceus licet speciosus foret, suos premeret digitos.

↵

a

Maritus pollutam ex sedibus suis excludet.

↵

b

Utitur suo jure, & nulli facit injuriam.

↵

§

[Page]

A TREATISE CONCERNING ADULTERY AND DIVORCE.

[...]—

Blastar⟨is⟩ Syntagma Alp. L⟨i⟩t. M.

London: Printed by R. ROBERTS. 1700.

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A Treatise concerning adultery and divorce

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1700

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Text Creation Partnership,

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2004-05 (EEBO-TCP Phase 1).

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A63098

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Wing T2086

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ESTC R34665

ID [EEBO-CITATION]

14549217

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ocm 14549217

ID [VID]

102572

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— A Treatise concerning adultery and divorce,

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39 p.

Printed by R. Roberts,. London :: 1700.. (Reproduction of original in the Huntington Library.)

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