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there is vulgar also of teachers who are as blindly by whom they fancy led, as they lead the people, it will not be amiss for them who had rather list themselves under this weaker sort, and follow authorities, to take notice that this opinion, which I bring, hath been favoured, and by some of those affirmed, who in their time were able to carry what they taught, had they urged it, through all Christendom; or to have left it such a credit with all good men, as they who could not boldly use the opinion, would have feared to censure it. But since by his appointment on whom the times and seasons wait, every point of doctrine is not fatal to be thoroughly sifted out in every age; it will be enough for me to find, that the thoughts of wisest heads heretofore, and hearts no less reverenced for devotion, have tended this way, and contributed their lot in some good measure towards this which hath been here attained. Others of them, and modern especially, have been as full in the assertion, though not so full in the reason; so that either in this regard, or in the former, I shall be manifest in a middle fortune to meet the praise or dispraise of being something first.
But I defer not what I undertook to show, that in the church both primitive and reformed, the words of Christ have been understood to grant divorce for other causes than adultery; and that the word fornication, in marriage, hath a larger sense than that commonly supposed.
Justin Martyr in his first Apology, written within fifty years after St. John died, relates a story which Eusebius transcribes, that a certain matron of Rome, the wife of a vicious husband, herself also formerly vicious, but converted to the faith, and persuading the same to her husband, at least the amendment of his wicked life; upon his not yielding to her daily entreaties and persuasions in this behalf, procured by law to be divorced from him. This was neither for adultery, nor desertion, but as the relation says, "esteeming it an ungodly thing to be the consort of bed with him, who against the law of nature and of right sought out voluptuous ways." Suppose he endeavoured some unnatural abuse, as the Greek admits that meaning, it cannot yet be called adultery; it therefore could be thought worthy of divorce no otherwise than as equivalent, or worse; and other vices will appear in other respects as much divorcive. Next, it is said her friends advised her to stay a while; and what reason gave they? not because they held unlawful what she purposed, but because they thought she might longer yet hope his repentance. She obeyed, till the man going to Alexandria, and from thence reported to grow still more impenitent, not for any adultery or desertion, whereof neither can be gathered, but saith the Martyr, and speaks it like one approving, "lest she should be partaker of his unrighteous and ungodly deeds, remaining in wedlock, the communion of bed and board with such a person, she left him by a lawful divorce." This cannot but give us the judgment of the church in those pure and next to apostolic times. For how else could the woman have been permitted, or here not reprehended? and if a wife might then do this without reproof, a husband certainly might no less, if not more.
Tertullian in the same age, writing his fourth Book against Marcion, witnesses "that Christ, by his answer to the Pharisees, protected the constitution of Moses as his own, and directed the institution of the Creator," for I alter not his Carthaginian phrase; "he excused rather than destroyed the constitution of Moses; I say, he forbid conditionally, if any one therefore put away, that he may marry another: so that if he prohibited conationally, then not wholly: and what he forbad not wholly, he permitted otherwise, where the cause ceases for which he prohibited:" that is, when a man makes it not the cause of his putting away, merely that he may marry VOL. I. 44
"Christ teaches not contrary to Moses, the justice of divorce hath Christ the asserter: he would not have marriage separate, nor kept with ignominy, permitting then a divorce;" and guesses that this vehemence of our Saviour's sentence was chiefly bent against Herod, as was cited before. Which leaves it evident how Tertullian interpreted this prohibition of our Saviour: for whereas the text is, "Whosoever putteth away, and marrieth another," wherefore should Tertullian explain it, "Whosoever putteth away that he may marry another," but to signify his opinion, that our Saviour did not forbid divorce from an unworthy yoke, but forbid the malice or the lust of a needless change, and chiefly those plotted divorces then in use? Origen in the next century testifies to have known certain who had the government of churches in his time, who permitted some to marry, while yet their former husbands lived, and excuses the deed, as done "not without cause, though without Scripture," which confirms that cause not to be adultery; for how then was it against Scripture that they married again? And a little beneath, for I cite his seventh homily on Matthew, saith he, "to endure faults worse than adultery and fornication, seems a thing unreasonable;" and disputes therefore that Christ did not speak by "way of precept, but as it were expounding." By which and the like speeches, Origen declares his mind, far from thinking that our Saviour confined all the causes of divorce to actual adultery.
Lactantius, of the age that succeeded, speaking of this matter in the 6th of his "Institutions," hath these words: "But lest any think he may circumscribe divine precepts, let this be added, that all misinterpreting, and occasion of fraud or death may be removed, he commits adultery who marries the divorced wife; and besides the crime of adultery, divorces a wife that he may marry another." To divorce and marry another, and to divorce that he may marry another, are two different things; and imply that Lactantius thought not this place the forbidding of all necessary divorce, but such only as proceeded from the wanton desire of a future choice, not from the burden of a present affliction.
About this time the council of Eliberis in Spain decreed the husband excommunicate, "if he kept his wife being an adulteress; but if he left her, he might after ten years be received into communion, if he retained her any while in his house after the adultery known." The council of Neocæsaria, in the year 314, decreed, That if the wife of any laic were convicted of adultery, that man could not be admitted into the ministry: if after ordination it were committed, he was to divorce her; if not he could not hold his ministry. The council of Nantes condemned in seven years' penance the husband that would reconcile with an adulteress. But how proves this that other causes may divorce? It proves thus: There can be but two causes why these councils enjoined so strictly the divorcing of an adulteress, either as an offender against God, or against the husband; in the latter respect they could not impose on him to divorce; for every man is the master of his own forgiveness; who shall hinder him to pardon the injuries. done against himself? It follows therefore, that the divorce of an adulteress was commanded by these three councils, as it was a sin against God; and by all consequence they could not but believe that other sins as heinous might with equal justice be the ground of a divorce.
Basil in his 73d rule, as Chamier numbers it, thus determines; "That divorce ought not to be, unless for adultery, or the hinderance to a godly life." What doth this but proclaim aloud more causes of divorce than adultery, if by other sins besides this, in wife or husband, the godliness of the better person may be certainly hindered and endangered?
Epiphanius no less ancient, writing against heretics, and therefore should himself be orthodoxal above others, acquaints us in his second book, Tom. 1, not that his private persuasion was, but that the whole church in his time generally thought other causes of divorce lawful besides adultery, as comprehended under that name: "If," saith he, "a divorce happen for any cause, either fornication or adultery, or any heinous fault, the word of God blames not either the man or wife marrying again, nor cuts them off from the congregation, or from life, but bears with the infirmity; not that he may keep both wives, but that leaving the former he may be lawfully joined to the latter: the holy word, and the holy church of God, commiserates this man, especially if he be otherwise of good conversation, and live according to God's law." This place is clearer than exposition, and needs
Ambrose, on the 16th of Luke, teaches "that all wedlock is not God's joining:" and to the 19th of Prov. "That a wife is prepared of the Lord," as the old Latin translates it, he answers, that the Septuagint renders it, "a wife is fitted by the Lord, and tempered to a kind of harmony; and where that harmony is, there God joins; where it is not, there dissension reigns, which is not from God, for God is love." This he brings to prove the marrying of Christian with Gentile to be no marriage, and consequently divorced without sin: but he who sees not this argument how plainly it serves to divorce any untunable, or unatonable matrimony, sees little. On the first to the Cor. vii. he grants a woman may leave her husband not only for fornication, "but for apostacy, and inverting nature, though not marry again; but the man may;" here are causes of divorce assigned other than adultery. And going on, he affirms, "that the cause of God is greater than the cause of matrimony; that the reverence of wedlock is not due to him who hates the author thereof; that no matrimony is firm without devotion to God; that dishonour done to God acquits the other being deserted from the bond of matrimony; that the faith of marriage is not to be kept with such." If these contorted sentences be aught worth, it is not the desertion that breaks what is broken, but the impiety; and who then may not for that cause better divorce, than tarry to be deserted? or these grave sayings of St. Ambrose are but knacks.
Jerom on the 19th of Matthew explains, that for the cause of fornication, or the "suspicion thereof, a man may freely divorce." What can breed that suspicion, but sundry faults leading that way? By Jerom's consent therefore divorce is free not only for actual adultery, but for any cause that may incline a wise man to the just suspicion thereof.
Austin also must be remembered among those who hold, that this instance of fornication gives equal inference to other faults equally hateful, for which to divorce: and therefore in his books to Pollentius he disputes, "that infidelity, as being a greater sin than adultery, ought so much the Father cause a divorce." And on the sermon on the mount, under the name of fornication, will have "idolatry, or any harmful superstition," contained, which are not thought to disturb matrimony so directly as some other obstinacies and disaffections, more against the daily duties of that covenant, and in the Eastern tongues not unfrequently called fornication, as hath been shown. "Hence is understood," saith he, "that not only for bodily fornication, but for that which draws the mind from God's law, and foully corrupts it, a man may without fault put away his wife, and a wife her husband; because the Lord excepts the cause of fornication, which fornication we are constrained to interpret in a general sense." And in the first book of his "Retractations," chap. 16, he retracts not this his opinion,
but commends it to serious consideration; and explains that he counted not there all sin to be fornication, but the more detestable sort of sins. The cause of fornication therefore is not in this discourse newly interpreted to signify other faults infringing the duties of wedlock, besides adultery.
Lastly, the council of Agatha in the year 506, Can. 25, decreed, that "if laymen who divorced without some great fault, or giving no probable cause, therefore divorced, that they might marry some unlawful person, or some other man's, if before the provincial bishops were made acquainted, or judgment passed, they presumed this, excommunication was the penalty." Whence it follows, that if the cause of divorce were some great offence, or that they gave probable causes for what they did, and did not therefore divorce, that they might presume with some unlawful person, or what was another man's, the censure of church in those days did not touch them.
Thus having alleged enough to show, after what manner the primitive church for above 500 years understood our Saviour's words touching divorce, I shall now, with a labour less dispersed, and sooner dispatched, bring under view what the civil law of those times constituted about this matter: I say the civil law, which is the honour of every true civilian to stand for, rather than to count that for law, which the pontifical canon had enthralled them to, and instead of interpreting a generous and elegant law, made them the drudges of a blockish Rubric.
Theodosius and Valentinian, pious emperors both, ordained that, "as by consent lawful marriages were made, so by consent, but not without the bill of divorce, they might be dissolved; and to dissolve was the more difficult, only in favour of the children." We see the wisdom and piety of that age, one of the purest and learnedest since Christ, conceived no hinderance in the words of our Saviour, but that a divorce, mutually consented, might be suffered by the law, especially if there were no children, or if there were, careful provision was made. And further saith that law, (supposing there wanted the consent of either,)" We design the causes of divorce by this most wholesome law; for as we forbid the dissolving of marriage without just cause, so we desire that a husband or a wife distressed by some adverse necessity, should be freed though by an unhappy, yet a necessary relief." What dram of wisdom or religion (for charity is the truest religion) could there be in that knowing age, which is not virtually summed up in this most just law? As for those other Christian emperors, from Constantine the first of them, finding the Roman law in this point so answerable to the Moasic, it might be the likeliest cause why they altered nothing to restraint; but if aught, rather to liberty, for the help and consideration of the weaker sex, according as the gospel seems to make the. wife more equal to her husband in these conjugal respects, than the law of Moses doth. Therefore "if a man were absent from his wife four years, and in that space not heard of, though gone to war in the service of the empire," she might divorce, and marry another, by the edict of Constantine to Dalmatius, Cod. 1. 5, tit. 17. And this was an age of the church, both ancient and cried up still for the most flourishing in knowledge and pious government since the apostles. But to return to this law of Theodosius, with this observation by the way, that still as the church corrupted, as the clergy grew more ignorant, and yet more usurping on the magistrate, who also now declined, so still divorce grew more restrained; though certainly if better times permitted the thing that worse times restrained, it would not weakly argue that the permission was better, and the restraint worse. This law therefore of Theodosius, wiser in this than the most of his successors, though no wiser than God and Moses, reduced the causes of divorce to a
certain number, which by the judicial law of God, and all recorded humanity, were left before to the breast of each husband, provided that the dismiss was not without reasonable conditions to the wife. But this was a restraint not yet come to extremes. For besides adultery, and that not only actual, but suspected by many signs there set down, any fault equally punishable with adultery, or equally infamous, might be the cause of a divorce. Which informs us how the wisest of those sages understood that place in the gospel, whereby not the pilfering of a benevolence was considered as the main and only breach of wedlock, as is now thought, but the breach of love and peace, a more holy union than that of the flesh; and the dignity of an honest person was regarded not to be held in bondage with one whose ignominy was infectious. To this purpose was constituted Cod. 1. 5, tit. 17, and Authent. collat. 4, tit. i. Novell. 22, where Justinian added three causes more. the 117 Novell. most of the same causes are allowed, but the liberty of divorcing by consent is repealed; but by whom? by Justinian, not a wiser, not a more religious emperor than either of the former, but noted by judicious writers for his fickle head in making and unmaking laws; and how Procopius, a good historian, and a counsellor of state then living, deciphers him in his other actions, I willingly omit. Nor was the church then in better case, but had the corruption of a hundred declining years swept on it, when the statute of "Consent" was called in; which, as I said, gives us every way more reason to suspect this restraint, more than that liberty: which therefore in the reign of Justin, the succeeding emperor, was recalled, Novell. 140, and established with a preface more wise and Christianly than for those times, declaring the necessity to restore that Theodosian law, if no other means of reconcilement could be found. And by whom this law was abrogated, or how long after, I do not find; but that those other causes. remained in force as long as the Greek empire subsisted, and were assented to by that church, is to be read in the canons and edicts compared by Photius the patriarch, with the avertiments of Balsamon and Matthæus Monachus thereon.
But long before those days, Leo, the son of Basilius Macedo, reigning about the year 886, and for his excellent wisdom surnamed the "Philosopher," constituted, "that in case of madness, the husband might divorce after three years, the wife after five." Constit. Leon. 111, 112. This declares how he expounded our Saviour, and derived his reasons from the nstitution, which in his preface with great eloquence are set down; whereof a passage or two may give some proof, though better not divided from the rest. "There is not," saith he, "a thing more necessary to preserve mankind, than the help given him from his own rib; both God and nature so teaching us: which doing so, it was requisite that the providence of law, or if any other care be to the good of man, should teach and ordain those things which are to the help and comfort of married persons, and confirm the end of marriage purposed in the beginning, not those things which afflict and bring perpetual misery to them." Then answers the objection, that they are one flesh; "If matrimony had held so as God ordained it, he were wicked that would dissolve it. But if we respect this in matrimony, that it be contracted to the good of both, how shall he, who for some great evil feared, persuades not to marry though contracted, not persuade to unmarry, if after marriage a calamity befall? Should we bid beware lest any fall into an evil, and leave him helpless who by human error is fallen therein? This were as if we should use remedies to prevent a disease, but let the sick die without remedy." The rest will be worth reading in the author. And thus we have the judgment first of primitive fathers; next of the