A discourse written by the Earle of Devonsheire
in defence of
his marriage with the Ladie Riche
As God in him selfe and of him selfe is infinite in his beinge soe is hee in
his attributes his wisdome power and his goodnes. out of which goodnes (the
nature whereof is to communicate it selfe with others) as it pleased
him by his wisdome and power to create the world for man &
both for his glorie soe was itt answerable to the forme, to
directe and make his owne works to the two ends for which it was
created. wherefore havinge created man with a purpose in him
& in his posteritie to be served as in his wisdome he sawe that it
was not good for that end that man should bee alone, soe did
he create him an assistant or helper like vnto him selfe which
was the woman, And to them boeth hee prescribed a Rule howe
in that vocation to the which hee had called them they should best
serve him, The lawe of God though in it selfe it be eternall &
like vnto him selfe in puritie who is infinitely pure, yet what=
soeuer doeth want doth in some sort worke accordinge to the
Capacity of that w
hichherein it doth want and therefore where
wee are to consider what is lawfull wee are n ot to search
into the absolute will of God which is infinite and infinitely pure
but to be directed by so much of his will as hee hath pleased to
reveale vnto vs the which hee hath sufficiently in his Word:
and in those impressions of nature which although by
our fall they are blotted yett are they not vtterly defaced
in vs which impression although they bee not sufficiently
to lead vs to one true god, yet in them is there nothinge
contrary to the word of god, which not in the word of god is there
no thinge contrary to them. Soe as to be resolued of the
nature of the bond of marriage and of the mutuall
duties incident thereunto because it is bothe a sacred
and civill contract, wee must haue recourse especially
to the word of God or the lawe of nature and to so much of
the lawe of the land wherein wee liue as is not
contrary to the word of God or the lawe of nature.
For human lawes in thinges that are otherwaies
indifferent, doe impose dutie in conscience to obey observe the
lawe, but yf they bee contrary to the Word of God
or lawe of nature are bounde with patience to suffer the penaltye, but
not in conscience to obey the lawe, But in case of marriage att the
least concerninge the lawfullnes thereof it seemeth heere in England
that Ius Poli and Ius fori are allone. For the by the statute in the
32: H. 8: 32 yeare of H 8. which remaineth still in force all marriages are
pronounced lawfull that are contracted betweene lawfull persons
and by the same act all persons are pronounced lawfull that be not prohibited
by the word of God to marry notwithstandinge any Statute or Acte
to the contrary. In the question therefore whether it be lawfull
for two betweene whome a marriage was lawfully contracted and
consummated after a sentence of divorce to marry with another bothe
parties betweene whome the first marriage was beinge then aliue, It
is onely necessarie to see whether by the word of God it bee prohibited
to marry as this case standeth, for otherwaies the marriage is
lawfull. In which consideracion there is nothinge to bee alledged but the
word of God, although the lawes of nature Nations and the iudgement
of the learned men may bee considered towards the interpretacionn
of soe much of the word of God as shalbe produced to the purpose; To
determine this matter itt is first fitt to bee handled whether a marriage
lawfully contracted & consumated may be by any meanes vtterly
dissolued and the bond vntied duringe the lyves of boeth the parties which
were first married, Nowe since heerein wee are to be resolued by the word
of God. Christ whoe is the lyvinge word and the word of lyfe doethe
direct vs where wee must begin and that is at the begining And first
institucion of marriage for in question of this matter hee doth call
the Pharises from the present practice and opinion to the consideracion
of the first institucion of marriage where hee saith But from the
begininge itt was not soe. / . The first institucion was by God in parradize
and betweene the first man and the first woman in the state of perfeccion
The finall end was because it was not good for man to bee alone that
hee might haue a helpe fitt for him, The efficient cause was the
consent of bothe parties wherein it is sayd when God had made
the woman and brought her to the man, hee sayd this now is bone of my
bones and flesh of my flesh. The matter and essence of marriage
is the fast adheringe which is expressed in theise words, Therefore shall
man leaue his father and his mother and shall cleaue vnto his wife
and they shalbe one flesh / The rule of marriage out of this institucion
is concluded by the wordes and wisdome of God to be this let
noe man therefore put asunder whome God that coupled together / .
iure There is noe dowbt but the contract De jure ought neuer to be broken
and that there offence is haynous and not to bee excused that doe
breake itt But the question is whether de facto it may bee
broken because the rule is, let noe man putt a sunder whome
god hath coupled together wee may as well conclude that noe
man may kill because the rule is thou shalt not kill In
which case the magistrate may both kill an offender and iustly kill
him, yet is it not to be said that hee but Iustice killeth him so
the offender is guiltie of his owne death and not the magistrate
Soe if two that are married shall contrary to the ends and
causes of marriage insteed of Comfortable helpes become
continuall torments vnto each other insteed of mutuall consent
doe lyue in continuall vnconscionable dissention and insteed
of beinge one flesh by abandoning themselues unto others do become
one Flesh with another I see nothinge left like vnto
a marriage nor of the substance of marriage nor any danger,
by any thinge that I can see in that first institucion for the
Magistrate to pronounce that to bee broken which by the faulte
of the offendor is indeed broken /. And as God ruleth all
sutable to his infinite purenes yett in those rules doth hee
allowe some exceptions agreable to the weakenes of our nature
for as the rule is Let no man put asunder whom god hath
coupled together. Soe wee muste needs confess that in somme
cases this rule doeth beare exceptions. For God by Malachy
doeth comaund Yf thow hate thy wife put her away And by
Moyses where the Children of God are comaunded that yf when
they goe to warr they take a bewtifull woman whome they
desire that then hee shall take her and marrie her And yf
after hee haue noe favor unto her then hee might lett her
goe whether shee would only hee might not sell her. And
in Deu: 34 when a man married a wife yf soe hee had
found no favor in her eies because hee had espied some
filthines in her hee was willed to write her a divorse and
gyve itt unto her and soe send her owt of his howse which wordes
in the hebrewe expressinge divorse the learned in that tonge
doe interprett to imply a cuttinge a sunder and dissolucion
And nothinge is more plainly by this place and diuers others
in the Scriptures then that the diuorse then allowed and practized
was
was an vtter dissolucion of the bonds of marriage in such sorte that both parties
did and might marry with any other And that the Iewes did knowe and
acknowledge noe other kinde of divorse but this. And this lawe was especially
made in favor of the partie wronged in the contract of marriage That yf
either of them owt of the hardnes of theire harts did breake the obligacion
wherein they were bound (the which to doe was neuer lawfull) were tollerated
that then it should bee tollerated lawfull for them to bee seperated that the partie
innocent being defrauded of the true end wherefore they were contracted,
the marriage should haue againe the proper due of theire owne bodies
which they had conferred vpon another For theise consideracions. and
that it should bee free for them to contract with any other by a better choise
to make reparacion of their first misfortune / And somuch was done
in favor of the innocent party that yf out of the hardnes of his hart his
minde were soe alienated though without iust cause from his former
choise that hee was allowed to lyue without her least hee should bee
tempted to seeke dangerous and more dangerous and wicked meanes to bee
ridd of her, And it was permitted vnto him to become sui Iuris by restoringe
vnto her the interest that shee had gyven him in her selfe and by marrying
any other more agreable to his harte to haue better meanes to serue god
in peace which before in warr and dissention hee could neuer in that vocacion
doe / Nowe for the Lawe of nature the best expositors of that lawe
amongest them whoe had only the light of nature to direct them doe
thus dece
ryue the begininge of marriage. That man beeing a reasonable
and sociable creature desiringe his owne mortall beinge and well
being coveteth to preserue his beinge in his posterity which hee could not
doe in him selfe; And the well beinge in the society of others which hee
could not dooe alone so that as hee could not gyve beinge to his posterity
without a woman so could hee neither gyve well being unto them
without carefull and good education yf euery man went promiscuously
to euery woman no man should knowe his owne children & consequently
noe care of theire education wherein consisteth there well beinge
Wherefore marriage was contracted betweene one man and one
woman that they two beinge one should preserue each others being
& well beinge boeth in theire owne mutuall society and in theire
posteritie /. Nowe yf there happen such a marriage where there
is noe hope of posterity nor mutuall comfort or society , but
the cleane contrary what is there in the Lawe of nature that
prohibiteh to dissolue this marriage especially yf it bee done by
theire
theire consents by whose consents it was contracted. For the Civill lawe
which in the generallity appereth neerest to the Lawe of nature
saith that nihil est tam naturale quan co genere quod que
dissoluere quo collegatum est and all lawes saith that consensus
facit matrimonium. And if it be said that the consent of two parties
should not preiudice the interest of a third and that god hath an
interest in this bond beinge a witnes thereunto it may bee
aunswered that all honest promises made by men haue euer
God for their witnes and yet are there many that by consent
may be dissolued without offence to god And although this bee
a promise which more then most contracts doe binde vs carefully
to obserue itt yett this is but a contract and magis et minus
non diuersificant speciem I doe not conclude out of all
this that out of naturall conveniency it was Comely that
all persons contracted by this sacred and cyvill bond should
vpon any cause or mutuall consent make seperacion of themselues
without the cognizaunce of the magistrate because many things
that in them selues are lawfull to be done are vnlawfull till
they bee iudged fitt to bee done and yf it should be done only
by the iudgement of the parties then should they bothe be iudges
and parties in theire owne cause which were vniuste and vnnaturall
But as I haue herd some of the Fathers of our lawe saye that yf
the kinge doe graunte vnder his greate Seale (which is an high
contract) any office with fee and comodity absolutly in
wordes duringe lyfe without any appearinge exception yet
hath the contract this silent condicion included in it, that the
partie
s
shall performe all those duties that are incident to his office
the breach whereof doth forfeit his graunt but yet is not the
kinge himselfe to take benefit of the forfeiture and libertie
to dispose of it to any other vntill it bee iudged soe that as by a
solemne record the contract was made soe by a solemne deede
it shalbe pronounced to be dissolued, And though a marriage
be contracted during life yet may it haue in it a hidden condicion
to obserue those duties which are the motiues of each others first
consent And though the marriage may be broken vpon the
likeinge of them yet is it not fit for either partie to take
advantage of it till it bee iudged soe and by the publike iudgement
of
of it so the cheife naturall end of marriage which was to avoyde promiscuity in
generacion and uncertainty in yssue is nowe more sufficiently prouided
for then yf they haad contynewed ioyned in that bond and disioynd in harts for
such a bond betwene such so distracted in their harts is not only a inticement
to adulterie but a cloud to conceale them and a warrant for a woman
to intende an adulterous issue into the inheritance of her husband The
doinge of which and of many other inconveniencies is clearely avoided
by a publique and vtter seperacion / And to inferr that I doe not rashly
or impertinently make some comparison betwixt this grant of an office
and the contract of marriage which seemeth to bee absolute yett doeth
not binde for euer and in all causes euen in this case of marriage
I haue the warrant of the comon lawe which doeth allowe a man for
fornicacion to put away his wyfe, although when hee were married
besides That maine maine contracts hee had sworne not to put her away
and the reason is gyven by the same lawe to be because in the same
contract and such like this unexpressed condicion must be understood
si videlicet illam legem coniungij non peccerat . I haue as I thincke
good reason to beleeve that there is nothinge in the first institucion of marriage by
the same lawe of God that doth make the bonde of marriage so fast, but
that in some cause it may bee diseuered; And the practice of this
Church untill the cominge of Christ whoe was dowbtles in many cases
to dissolue it: And likewise that it is not contrary to the Lawe of
nature for then it must needs haue been contrary to the worde of
God. If I haue alleadged noe other reason yet I thinck this very
sufficient that whatsoeuer all nations did hold was counted the lawe of Nature and all
nations nations till the cominge of Christ
did hold divorse to be lawfull. Therefore diuorse was esteemed
lawfull by the lawe of nature till the Cominge of Christ till
the begininge of the common lawe but that will fall more fitt
to bee affirmed in this parte where (h avinge proued divorse a
vincul are neither against the lawe of nature nor the
nature it selfe) I must now make it appeare that it is not
against the lawe of the gospell. to which purpose I will alledge
the words of Christ whoe was the lawe-gyver of this caution
which hee gyveth himselfe that hee came not to take away the lawe
but to fulfill it and as I take it in this case not vtterly to restraine
the libertie gyven by the former lawe but to reforme the misvnd=
erstandings and abuse of that libertie And though the wordes
them selues doe seeme to interprett them selues yett I will declare
how I doe vnderstand them & what warrant I haue to understand
them
them, As God gaue the first lawe of marriage in Parradize to man
then beinge in the state of perfection
so Christ when hee woulde
regenerate vs vnto that perfection ascendinge himselfe and seekinge
to drawe vs with him did first speake of marriage in his sermon
which is called by the Fathers in monte wherein all his rules
are of right and soe full of puritie that they seeme ordinary
to such a lyfe as should be the right marke wee should ayme
to come vnto as neere as wee could and speakinge of marriage
these be the wordes. It hath beene said alsoe whosoeuer shall put
away his wyfe let him gyue hir a bill of diuorse, but I
say vnto you whosoeuer putte h away his wyfe except it be
for fornicacion causeth her to commit adultrie whosoeuer shall
marry that is diuorced comitte the adultrie. These wordes
I will not only interprett out of my owne spiritt but in
the words of Erasmus Paraphrase vpon this place and
not only because it is Erasmus interpretacion concordinge
with myne but because it agrees with the doctrine and practize
of the Church for many hundred yeares after the cominge of
Christ with the opinion of most of the antient fathers and with
the opinion of most of the Church of Rome and lastly with all
or allmost all of the learned and godly writers whome god
did vse as blessed instruments for the better reformacion of
the Church and these are Erasmus words the lawe of
Moises did permitt that the husband offended with any fault
with his wyfe should put her away at his pleasure soe that
hee gaue vnto her whome hee did put away a bill of diuorse
by which shee might marry with another and by which the right in
him to assume her againe might bee taken away, and soe he did
satisfie the lawe whoe for any cause did repudiate his wyfe
yf att her departure hee gaue her such a bill neither should shee
bee iudged as an adultress neither should any note her as an
adultress notwithstandinge the lawe did with the freindshipp and
concord betweene the married continewe to be perpetuall.
But knowinge the hardnes of the Iewes and least any thinge More
wicked should be comitted as poisninge and other murder, hath permitted
diuorse. but I wish that by the professors of the newe lawes marriage
be more holy and inviolable and therefore whosoeuer shall
putt away his wife vnlesse shee be an adultresse (for then
shee
shee leaueth to bee a wife when shee hath mingled her selfe with another
doeth constraine her
selfe
to comitt adultrie for yf she marry with another she
doeth not marry a husband but an adulterer And hee that doeth marry
her that is so repudiated doeth not marry a wife but an adultresse for
Erasmus enlarginge the words of Christ to explaine his meaninge and
Cardinall Caieton in his Comentaries vpon this place concurringe with
this interpretacion upon the words Et quid dimissam duxerit adulteras
doth ad vnto dimissam procull dlubio absque fornicacione nota: which
is one with Erasmus who vnto dimissam doth ad sic dimissam and
doth agree that the puttinge away which by this text is allowed in the
case of fornication is such a puttinge away and the vtter dissalowinge
of the bond aswell is allowed in the law of moises. I doe not soe farr
over vallewe the authorities of theise men although I knowe them
to haue bine as learned as any that lyved in theire age as I would
Iurare in verba magistri but that they haue said the same which yf I
had neuer read them I had so many of theire reasons to say and that in
these words they doe make it plaine that in this text a divorse of
marriage a vinculo in somme case is not prohibited which is the question
I nowe handle I doe inferr by theise words That whosoeuer shall
putt away his wyfe (except it be for fornicacion doeth cause her
to comitt adultrie) And whosoeuer doeth marry a wyfe soe put away
(that is for some sleight cause and not for adultreie) doth committ
adultrie, But whosoeuer doth marry a woman lawfully put away
and it is lawfull to put her away for that greate cause doth committ
adultrie because shee is then noe mans wife and consequently no
man wronged yf shee marry to any other. And yf Christ did not in
this take away the ould lawe but reforme it hee leaueth the lawe
to bee the same that it was in the cases which hee doth in this reformacion
except And therefore in the cause of fornicacion the lawe of divorse
remaineth still whole as it was in the tyme of Moises and the lawe of
divorse was then an vtter seperacion a vinculo. And surely yf theise
words of Christ touchinge divorse in this place haue expressed noe
exception I see noe reason but in this wee might haue admitted an
exception in causes cleane contrary to the nature of marriage as well
as wee are forced in most of the absolute preceptes in the chapter read the
like in the next verse in lyke manner hee saieth againe you haue
heard that it was said to them in ould tyme thow shalt not forsweare
thy selfe but shalt performe thy oath vnto the lord but I say vnto
you Sweare not att all And yett wee finde out an exception in somme
cases to make it lawfull to Sweare And after yf any man will
Sue thee at the lawe so take away thy coate let him haue they cloake
also
alsoe And yett wee finde out an exception to make it lawfull for vs
boeth to defend our coates and our cloakes also from the advantage of
the lawe and finally he concludeth you shalbe perfect therefore
as your father which is in heauen is perfect the which yf wee doe not other
waies expound then the letter doth importe wee muste needes
confesse to bee impossible for how can a finite and corruptible
Creature by infinite degres came neere vnto the perfection of
an infinite or infinitly pure creature Creator therefore yf
the exception heere in the matter of diuorce and the same in
the 19 of Mathew were not, yet might those places in Mark
and Luke moue that where there is noe exception of fornicacion
expressed but especially now it maketh it plaine for as noe
one place of the doctrine of the holy ghost is contrary to
another so is the generall rule of expoundinge the scriptures
to expound that which is more skant or obscure by other places
of the same subiect that are more large and plaine and
not to restraine that which is written more large by any
other places which doe not expresse so much so that vnto Luke
and Marke wee must add the exception which is in the 19th
of Mathew and not to take it from those places because it is
not in the other But because in the 19 of Mathew this
matter of deepe diuorce doth seeme more largely to be handled
it wilbe fitt to bringe these words to be considered the Pharises
hauinge herd as it is lyke by of the doctrine of Christ against
the present opinion and practise of those times came to him
with a minde to tempt him in the matter and said to him
as it lawfull for a man to putt away his wife upon euery
occasion? and hee answered and said vnto them, haue yee yet
not read that hee that made them in the begininge made them
male and female and said for this cause shall a man
leaue father and mother and cleaue vnto his wife and
they twoe shalbe one flesh lett noe man therefore putt
a sunder those whome God hath coupled togeather. They
sayd unto him why then did Moises command us to giue a bill of divorse & put her
away the said unto them Moises for the for the hardnes of your harts
suffered you to doe soe but from the begininge it was not so I
say therefore vnto you whosoeuer shall putt away his wife
except it be for fornicacion and marry another comitteth
adultreie and whosoeuer marrieth her that is diuorced comitteth
adultrie The Pharises as both theire cause and purpose in this
busines
busines was euill, so dowbtles was boeth theire opinion and practise att
that tyme both against the first institucion of marriage and the true
meaninge of Moises in this cause of diuorce and therefore as they and
theire begininge so informed of the matter did putt the question to Christ
so Christ vnto them and to this matter as it was then held and practized
doth make the answere and seekinge to reduce them and all men vnto that
state of perfeccion in which they were first conceaued doth call them back to the first
instutuccion of marriage which was made when man was in paradize in
the state of perfeccion and therefore doth answere theire question whether
itt were lawfull for a man to putt a way his wyfe vpon euery occasion
as they then held and as they verely beleeued to this effect haue you not
read in the word of god that god made man and woman at the first in the
state of perfection and therefore able to performe those duties incident
to theire creation and also to his particular vocation wherein they were
ordained as to be comforters and assistants to each other as well by theire
posteritie to increase his churche as by theire mutuall loue and
affection to supply to ech other the defects of solitarines and that yf
they should fall to be a meanes by theire lawfull ioyninge togeather
to avoyd the same which with theire inordinate defects might leade them
unto. And therefore shall this bond be so sleightly obserued by you
that a man shall leaue Father and mother in respect of his
wife and in continuall conuersation and affeccion be ioyned togeather
so that they whoe before this mutuall consent were two by this
contract be but one flesh let no man therefore breake his faith in not
performing the Condicion of this bond nor by seeking any others to become one
with another by the which the bond is broken
and they are seperated whom god did couple togeather This beinge
contrary to that which they conceaued to be lawfull by Moises lawe
They asked him againe whi did Moises then comand to gyue a bill
of diuorce and put her away to the which hee aunswered that Moises
because he knewe that you beinge degenerated from your first perfec
tion though the hardnes of your harts which could resist all grace did
not only breake of the true endes and condicions of marriage but
out of the same hardnes of heart were apt to seeke wicked and
bloody meanes to be seperated, ordained a course which by his prouision
was lawfull by a bill of diuorce to make it knowne how that was
seperated which you by the hardnes of your harts had seperated but from
the begininge it was not soe for the seed of discord and discention
being then unsowen there was noe breakinge of the bond of
marriage and therefore noe cause of diuorce neither should
there be any now when you are borne againe to by the like
perfeccion and shall haue my grace contyuallyto strengthen you
except the hardnes of your harts doe refuse it I say therefore vnto
you that whosoeuer shall putteth away his wife and marrieth another
except it be for whoredome (which euer I from the begininge that it
had bin comitted was so opposite to the nature of marriage,
that it did vtterly breake and dissolue it) hee doth comitt
adulterie because shee that hee doeth soe putt a way is still
his wife because shee is not lawfully and fully putt away
whosoeuer marrieth her that is so put away commiteth adultrey
because hee doth marry one that beinge not lawfully put
away remaineth still the wife of another. And surely
but that I am fearefull to add any thinge to the text in the
which I haue not apparant warrant I thincke I might expound
theis words except it be for fornication and some such other
to haue a more large intent then the bare letter doth
imply and that the word fornicacion doth imply not only
carnall but spirituall fornication and some such other
greate causes as are contrary to the nature of marriage
for somme causes there must be allowed besides this carnall
faulte
faulte
for howe will elce elce the place of Pawle stand
with this wherein he doth pronounce the beleeuinge woman
to be free to marry another beinge abandoned by her
vnbeleeuinge husband, And some of the Fathers the
Masters of the sentences and others of the Church of Rome
are forced to that large interpretacion to make good
theire titularie diuorce a thoro et mensa which they
allowed in diuerse other causes besides adultry) And
many learned writers of our church and the ciuill
lawes made by most Christian Emperors must either
haue that construccion for their warrant for wee must
thincke that those Emperours lyeing neerest to the
purest tymes of the church (when the church did florish
with more extraordinary learninge and pietie And
those Emperours not only obedient but also obnoxious
to the authoritie of those good men would not promul=
gate and practize lawes that were contrary to the word
of god I say they were obnoxious because Theodolphus
the younger who by his lawes did allow many other vtter
causes of diuorse when a Churchman did iniuriously
threaten
threaten to excomunicate him from denyinge him a suite he did rather chuse
to satisfie him then repell his wronge with iust power. The iudgement of
the Fathers and stories of those tymes did wittnes much of his extraordinary
pietie in dutie and obedience to the Church And Socrates doeth write
of him that he spent much of his time in fastinge and prayer that hee
did striue aboundantly to keepe the straite rules of the Christian life
that his court was lyke a monastery for he spent the morninge with
his Sisters in singinge psalmes: hee could repeate all the Scriptures
so owt of his owne memory that of those hee would dispute with the
Bishopes as yf his function had bin to be one of them hee was a
more gatherer of such boekes as contained the whole word of god
and of such lyke then euer Ptolomeus Philidelphus was and that
he did obserue with all honor the preists of god and those most whome
he did knowe to be best and in the end of that chapter which is 22 of his
7 boeke of Ecclesiasticall histories he saith that the whole Cittie
for practice and consent was as it were but one church. shall wee
then thincke that so those godly and soe learned an Emperour would haue
made or suffered a publike lawe which he had thought to haue bine
contrary to the word of god or yf the learned men euen of those
times had thought it to be contrary to the word of god can it be
imagined that they would not haue admonished him of it? it is not
likely thaat he whoe bare so much respect vunto them would haue
ruled his will to that which they should haue tould him had not it
bene the word of god. for in those times, that was the lawe Quod
principi placuit. And there was no other difficultie but his
will to haue altered it neither did hee make his lawe of diuorce
such as they though
beinge many other Christians and excellent Emperors in his lawe
Concensus lib. 5. tit. 17 he doth restraine the causes of diuorce to suche
as he thought of greatest importance and yet out of all this I only
conclud that it is lawfull for a man to put away his wife for
fornifcacion and to marry another. And that it as much as in
this question I desyre to proue, which is, that in somme case the bonde
of marriage may be dissolued neither doth Pawle in the 7to the
Romans
where he saith that the woman which is in subiection to the man
is bound by the lawe to the man while he lyueth make any thinge
against the doctrine of Christ and therefore theire exceptions (except
it be for fornicacion) must be added neither is it his purpose in his law
to speake anythinge of diuorce but by the example of a generall rule
wherin it was necessarie he should mencion the excepcion , his purpose
was to proue another matter for ells hee would neuer haue said knowe
you
you not brethren for I speake to them that knowe the lawe for they
that did knowe the lawe did knowe that generall rules haue an
exception and to this effect saith Caitan vpon this place
aduerte tamen c aute V ector quod hæc Pawli verba intelli=
guntur regularites, seci us veron i casu s ciebat Paulus
sciebant et docti in lege Moises quos alloquitu r quod
secumdum legem verum est regulariter quod mulier
alligata est quam totem quanto tempore viuit vico suc:
et cum hoc sciunt, quòd in casu libelli repudij secundum
legem mulier soluta erat a lege viri, etiam viuente
viro. And wherein the 7 of the first to the Corinthians he saith
And to the married I commaund . yet not I . but the lord; let
not the wyfe departe from the husband but yf shee departe
let her remaine vnmarried or let her be reconsiled to her
husband and let not the husband put away his wyfe: Theis
must be expounded of such sleight causes, for the which christ
doeth prohibitt but to put away an adultres which is allowed
to be lawfull by the opinion of all men And therfore there is no
dowbt but this place also must be added (except it be for
adultre ) for in the next verse he saith if any haue a wife
that beleeueth not yf shee be contented to dwell with him
let him not forsake her, by which he sheweth that marriage
betweene such to be found lawfull and yet hee addeth
but if the vnbeleeuinge departe let him depart: A brother
or a Sister is not in subiection to such thinges, which I feare
the Romish Church doth expound to be free to marry another
And from thence doe many learned men of our church conclud
that for the cause of discretion it was lawfull for any to
marry againe but his leauinge of her, for in the verse going
before it appeareth that it was not lawfull for her to leaue
him except he did leaue also though hee were an infidell
And surely since cohaabitacion ioyned with the other mutuall duties
of marraiage is yet adheringe within the first institucion was
of the very essence of marriage. I see no reason but he that dothe
wickedly and vtterly abandon his wife should by that maker her as
free as shee was before shee was married vnto him especially that
it be done by order and so pronounced by the magistrate vnto the
which I beleeue the magistrate is warranted by the word of God. I
could
could neuer read nor heare of any other place in the scriptures that with any
apparance is alledged against my conclusion, And therefore since the dissoluing
of the bond of marriage in some cases doth appeare neither to be against the
first institucion of marr iage nor to be against the doctrine of Christ I may
conclud that it is not prohibited by the word of god that marriage lawfully
contracted and consum ated may in some cases be dissolued from the bond
during the lyfe of both parties that were so married. And thought to
inferr so much it is enough to haue alleaged the word of god yet I will
as breefely as I cann touch the Censure and practise of the Church
touchinge the matter from the tyme of Christ vntill nowe not mindinge
to alledge all that hath bine controuersed by some excellent men but
rather to give some light how the state of this question hath bene
held and haue led untill the begininge of the Com on lawe. The Civill
lawe which was the law of our Christian world did allowe in somme causes
divorce a vinculo and none of the Fathers. vntill the tyme of St Ierome
and St Augustine did directly impinge but many directly allowe allow
It is true that in some of them there may be some what gathered of theire
dislike of the abuse of divorce and of such as did rashly conuolare ad
secundas nuptias. But was it heard thaat till the com on lawe any marriag
made after divorce was by the iudgement of any of them dissolued St Ierome
and St Augustine were the first that seeme dogmatically to dissalowe
the dissolucion of marriage a vinculo. and from them is deryved the
divorce (which is indeed noe divorce) A thore atque mensa which nowe the
Church of Rome doth allowe. These holy Fathers out of theire exceedinge
loue of puritie (but especially Ierome) did a litle to hardly censure
even the holy state of marriage it selfe and so carefull were they in
this and in many other things that Ethnickes and Heretiques should
see nothinge foule that they somtimes rather admitt a hidden sore in the
bodie then a moate in the face of the Church but how strongly soeuer
St Ierome handled this matter whose strongest arguments may aswell
be vrged against second marriage after diuorce yet hee doeth even extoll
Fabriola for her pietie as a miracle and excuse her fact whoe duringe
the life of her husband had married another and though after the death
of her second husband shee did voluntarylie penance (It was often
done for ordinary faults) yet was the marriage neuer dissolued and the
pennance because that without the authoritie of the Church shee did putt
away her husband and not because shee did it And for that St Augustine
after to proue his purpose hee hath made such interpretacions of the
scriptures as will hardly satisfie any man that is not more moved
by his authoritie then by his reasons yet in the end hee is forced
that
that in his boeke de fule et operibus to conclude this matter. Quis
quis vxorem in adulterio deprehensam dimiseret et aliam
duxerit non videtur æquandus eis exepta causa adulterij
dimittunt et ducunt. et in ipsis diuinis sententijs ita est
obscurum ut iste equidem siue dubio adulteram licet dimittere
adulter tamen habentur si alteram duxerit ut quantum
existimo Veni aliter quisquis salli tur. And let that
Reverend Father pardon me yf I bee not satisfied with his boeke
of this matter since it seemeth hee was skant satisfied, with
them himselfe for thus he write of them in his retractions
scripsi duos libris de coniungijs adulterinis quantum
secundum scripturas cupiens soluere difficillimam
questionem quod verum emendatissime fecerim
nescio imo vero me non peruenisse ad huius rei
perfectionem sentio. But howsoeuer by the boekes
it appeareth that Polotimus a godly Father was of the
contrary opinion, I conceaue it may be gathered by that
treatise of Polotimus written to him to knowe the reason
of his opinion as beinge newe and diuerse from that which
was held at that time I will not alledge all the authorities
of the autient Fathers that to make for my conclusion
but repeate even out of Sixtus Serensis an aduersarie to this
cause that Ambrose Tertulian Hillari a uthor operis
in perfecti, Crisostom Enthunius Theophil actus
Chromatius Pope L achary the first and the Fathers
of the Eube rtine Mogientine and Tibertine counsells
doe seeme to be of that opinion besides suche of the Fathers
as wee whome hee calleth heritiques doe alledge in this
cause but it is noe wonder that the Com on Lawe should
err in this matter which in many things but especially in
this of marriage hath so many errors that haue noe
appearance to warrant them that none but a iudgement
captiuated and obnoxious to the Church of Rome cann
allowe them and the comon lawe is the fountaine of that
hath corrupted the torrent of the doctors since that tyme
with the which even they were carried that in theire owne iudgement
did otherwaise beleeue since it was so dangerous for them to
striue against the streame And yet I may say by the authority
of Cardinall Caiton whome I had rather alleadge in this
matter
matter then our owne writers who doeth protest boeth against the Contrary
doeth p doctrine and parties that professed it that this matter was neuer
dogmat tically defined by the church of Rome to be as a matter
of faith contrary to the word of god but iudicially to be determined
as fitt to be as a matter obserued. in fact as theis are his wordes
upon the 19 of Mathew. Intellig
go i
egitur
exhac D. Jesu in Christi lege tutum licitum
esse
Christiano admittere vxorem ob fornicationem carnalem ipsius vis, & posse ducere aliam
em: Salva sedmer Ecclesiæ nitione, quæ hac tenus
non apparet: nam decretales Pontificiæ de hac re materia non sunt definitiuæ
quo Fidei sed adjudiciales Facti. And Catharinus Bisshop of Compfar
when in the first edicion of his booke of annotacions upon Cajetans
Commentaries hee had with much bitternes taxed him for many things
doth overpresse this opinion with silence: But in his second edition in
his 5 booke he dooth confesse that hee did it because (as he saith)
nec poteram prudenter reprehendere, quod nesciebam etiam
idonte confutare. And hee that in all things did quarrell with Cajetan
doeth concurr with him in this opinion and confirme it with many
(and I doe thincke soe stra
onge) reasons as can noe way be answered;
and doeth much like to the other conclude in these words; Scio, quod
aliter docent nunc uniuersaliter scholæ, et ego cum illis sentio,
ex fide cogor, et captiuam reddo intellectum meum: hoc tamen
precor, neminis facile censuram adhibeant. satis est, quòd decretis
Pontificum hanc per soluo reuerentiam, ut iuxta illa doceam atque
cosulum Here is a much illegible
: Out of which out which is in a prayer exposition with
my owne hand he
out of which I do inferr it Owt of which I do inferr ...
vuniust then prohibite them to marry
for marriage is the lawfull remedy that god hath apointed & prouided
for such as cannot lyve in Chastitie and as Austine saieth of marriage
Quod sanis fuit in offensam, ægrotis dictum est in remedium
, And if our Sauior
Christ left his whole flocke for to seeke pne lost sheepe, shall wee put
a poore lost sheepe out of the right way wherein it desireth to retorne
againe to the Shephard? what were this, but to punish sinne with sinne
and to deny vnto them, whome wee would reclaime to saluation the
meanes to lead them vnto it? and therefore I will only say with Caluin
(whoe in this agrees with Luther, Malanchton, Bucer,
Hemmingiums
,
Beda, Vinitus Vicetus and most of all the godly doctors;) quia hac tenus (non
tamen temere, ue dicebat) animaduersum fuit in adulterio, ut eorum
vitæ parcatur, qui violant fidem coniu
gij: durum esset, virum
quo cum diuortium fecit vxor adulterij causa, aut mulierem
a marito repudiatam, si incontentia laborant, in totam vitam à
coniuggio arcere: Haque necesse est, ut indulgentia vna alteram
trahat. / Nowe since it doeth not appeare thaat it is prohibited by
the word; and that all marriages by our lawes are pronounced lawfull
that are not prohibited by the word of god: I may conclud that
the marriage between twoe, of whome one of them was diuorced;
from
from another, duringe the lyfe of that other is lawfull by the lawe of
god and of man. And if it not it being contrary to the lawe
of god it were contrary to the positiue lawe of this land the
Prince might in some particuler case dispence with the generall
rule and neither against the nature of all humane lawes
in which the equitie of all particular causes cannot be sufficiently
prouided for nor against the iustice of this Realme since (as I take
it) that power is gyven by a Statute of the 25, of H.8.
Chapter 21. even in this Cause of marriage. And yf upon
greate Consideracion hatefull and cryinge since of treason which
is neuer without blood and breach of faith wherein not only
the prince but euery subiect hath an interest and not only
gyven of the offendors lyfe but restored them and theire
posteritie from infamie; what offence can the like indulgence
giue in a fault of weaknes? especially if it fall out that
it be not accompanied with any other injury; for yf botth
parties doe desire suche a separacion and content with
a newe voleneti non sit iniuria. /
habeat itaque et Christum assertatorem
Iusti diuorcij.
Tertulliam lib: aduersus
Marcionem. .
finis