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imperial law not disallowed by the universal church in ages of her best authority; and lastly, of the whole Greek church and civil state, incorporating their canons and edicts together, that divorce was lawful for other causes equivalent to adultery, contained under the word fornication. So that the exposition of our Saviour's sentence here alleged hath all these ancient and great asserters; is therefore neither new nor licentious, as some would persuade the commonalty; although it be nearer truth that nothing is more new than those teachers themselves, and nothing more licentious than some known to be, whose hypocrisy yet shames not to take offence at this doctrine for license; whenas indeed they fear it would remove license, and leave them but few companions.
That the pope's canon law, encroaching upon civil magistracy, abolished all divorce even for adultery. What the reformed divines have recovered; and that the famousest of them have taught according to the assertion of this book.
But in these western parts of the empire, it will appear almost unquestionable, that the cited law of Theodosius and Valentinian stood in force until the blindest and corruptest times of popedom displaced it. For, that the volumes of Justinian never came into Italy, or beyond Illyricum, is the opinion of good antiquaries. And that only manuscript thereof found in Apulia, by Lotharius the Saxon, and given to the states of Pisa, for their aid at sea against the Normans of Sicily, was received as a rarity not to be matched. And although the Goths, and after them the Lombards and Franks, who overrun the most of Europe, except this island, (unless we make our Saxons and Normans a limb of them,) brought in their own customs, yet that they followed the Roman laws in their contracts in marriages, Agathias the historian is alleged. And other testimonies relate, that Alaricus and Theodoric, their kings, writ their statutes out of this Theodosian code, which hath the recited law of divorce. Nevertheless, while the monarchs of Christendom were yet barbarous, and but half-christian, the popes took this advantage of their weak superstition, to raise a corpulent law out of the canons and decretals of audacious priests; and presumed also to set this in the front: "That the constitutions of princes are not above the constitutions of clergy, but beneath them." Using this very instance of divorce, as the first prop of their tyranny; by a false consequence drawn from a passage of Ambrose upon Luke, where he saith, though "man's law grant it, yet God's law prohibits it:" whence Gregory the pope, writing to Theoctista, infers that ecclesiastical courts cannot be dissolved by the magistrate. A fair conclusion from a double error. First, in saying that the divine law prohibited divorce: (for what will he make of Moses?) Next, supposing that it did, how will it follow, that whatever Christ forbids in his evangelic precepts, should be hauled into a judicial constraint against the pattern of a divine law? Certainly the gospel came not to enact such compulsions. In the mean while we may note here, that the restraint of divorce was one of the first fair seeming pleas which the pope had, to step into secular authority, and with his antichristian rigour to abolish the permissive law of Christian princes conforming to a sacred lawgiver. Which if we consider, this papal and unjust restriction of divorce need not be so dear to us, since the plausible restraining of that was in a manner the first loosening of Antichrist, and, as it were, the substance of his eldest horn. Nor do we less remarkably owe the first means of his fall here in England, to the contemning of that restraint by Henry the VIII., whose divorce he opposed. Yet was not that rigour executed anciently in spiritual
courts, until Alexander the IIId, who trod upon the neck of Frederic Barbarossa the emperor, and summoned our Henry IId into Normandy, about the death of Becket. He it was, that the worthy author may be known, who first actually repealed the imperial law of divorce, and decreed this tyrannous decree, that matrimony for no cause should be dissolved, though for many causes it might separate; as may be seen Decret. Gregor. 1. 4, tit. 19, and in other places of the canonical tomes. The main good of which invention, wherein it consists, who can tell? but that it hath one. virtue incomparable, to fill all Christendom with whoredoms and adulteries, beyond the art of Balaams, or of devils. Yet neither can these, though so perverse, but acknowledge that the words of Christ, under the name of fornication, allow putting away for other causes than adultery, both from "bed and board," but not from the "bond ;" their only reason is, because marriage they believe to be a "sacrament." But our divines, who would seem long since to have renounced that reason, have so forgot themselves as yet to hold the absurdity, which but for that reason, unless there be some mystery of Satan in it, perhaps the papist would not hold. It is true, we grant divorce for actual and proved adultery, and not for less than many tedious and unrepairable years of desertion, wherein a man shall lose all his hope of posterity, which great and holy men have bewailed, ere he can be righted; and then perhaps on the confines of his old age, when all is not worth the while. But grant this were seasonably done; what are these two cases to many other, which afflict the state of marriage as bad, and yet find no redress? What hath the soul of man deserved, if it be in the way of salvation, that it should be mortgaged thus, and may not redeem itself according to conscience out of the hands of such ignorant and slothful teachers as these, who are neither able nor mindful to give due tendance to that precious cure which they rashly undertake; nor have in them the noble goodness to consider these distresses and accidents of man's life, but are bent rather to fill their mouths with tithe and oblation? Yet if they can learn to follow, as well as they can seek to be followed, I shall direct them to a fair number of renowned men, worthy to be their leaders, who will commend to them a doctrine in this point wiser than their own; and if they be not impatient, it will be the same doctrine which this treatise hath defended.
Wickliff, that Englishman honoured of God to be the first preacher of a general reformation to all Europe, was not in this thing better taught of God, than to teach among his chiefest recoveries of truth, "that divorce is lawful to the Christian for many other causes equal to adultery." book indeed, through the poverty of our libraries, I am forced to cite from "Arnisæus of Halberstad on the Rite of Marriage," who cites it from Corrasius of Toulouse, c. 4, Cent. Sect., and he from Wickliff, 1. 4, Dial. c. 21. So much the sorrier, for that I never looked into an author cited by his adversary upon this occasion, but found him more conducible to the question than his quotation rendered him.
Next, Luther, how great a servant of God! in his book of "Conjugal Life" quoted by Gerard out of the Dutch, allows divorce for the obstinate denial of conjugal duty; and "that a man may send away a proud Vashti, and marry an Esther in her stead." It seems, if this example shall not be impertinent, that Luther meant not only the refusal of benovelence, but a stubborn denial of any main conjugal duty; or if he did not, it will be evinced from what he allows. For out of question, with men that are not barbarous, love, and peace, and fitness, will be yielded as essential to marriage. as corporal benevolence. Though I give my body to be burnt," saith
St. Paul," and have not charity, it profits me nothing." So, though the body prostitute itself to whom the mind affords no other love or peace, but constant malice and vexation, can this bodily benevolence deserve to be called a marriage between Christians and rational creatures ?
Melancthon, the third great luminary of reformation, in his book "Concerning Marriage," grants divorce for cruel usage, and danger of life, urging the authority of that Theodosian law, which he esteems written with the grave deliberation of godly men; "and that they who reject this law, and think it disagreeing from the gospel, understand not the difference of law and gospel; that the magistrate ought not only to defend life, but to succour the weak conscience; lest, broke with grief and indignation, it re linquish prayer, and turn to some unlawful thing." What if this heavy plight of despair arise from other discontents in wedlock, which may go to the soul of a good man more than the danger of his life, or cruel using, which a man cannot be liable to? suppose it be ingrateful usage, suppose it be perpetual spite and disobedience, suppose a hatred; shall not the magistrate free him from this disquiet which interrupts his prayers, and disturbs the course of his service to God and his country all as much, and brings him such a misery, as that he more desires to leave his life, than fears to loose it? Shall not this equally concern the office of civil protection, and much more the charity of a true church, to remedy?
Erasmus, who for learning was the wonder of his age, both in his Notes on Matthew, and on the first to the Corinthians, in a large and eloquent discourse, and in his answer to Phimostomus, a papist, maintains (and no protestant then living contradicted him) that the words of Christ comprehend many other causes of divorce under the name of fornication.
Bucer, (whom our famous Dr. Rainolds was wont to prefer before Calvin,) in his comment on Matthew, and in his second book "of the Kingdom of Christ," treats of divorce at large, to the same effect as is written in "the Doctrine and Discipline of Divorce" lately published, and the translation is extant: whom, lest I should be thought to have wrested to mine own purpose, take something more out of his 49th chapter, which I then for brevity omitted. "It will be the duty of pious princes, and all who govern church or commonwealth, if any, whether husband or wife, shall affirm their want of such, who either will or can tolerably perform the necessary duties of married life, to grant that they may seek them such, and marry them; if they make it appear that such they have not." This book he wrote here in England, where he lived the greatest admired man; and this he dedicated to Edward the VIth.
Fagius, ranked among the famous divines of Germany, whom Frederic, at that time the Palatine, sent for to be the reformer of his dominion, and whom afterwards England sought to, and obtained of him to come and teach her, differs not in this opinion from Bucer, as his notes on the Chaldee Paraphrast well testify.
The whole church of Strasburgh in her most flourishing time, when Zellius, Hedio, Capito, and other great divines, taught there, and those two renowned magistrates, Farrerus and Sturmius, governed that commonwealth and academy to the admiration of all Germany, hath thus in the 21st article: "We teach, that if according to the word of God, yea, or against it, divorces happen, to do according to God's word, Deut. xxiv. 1; Matt. xix.; 1 Cor. vii.; and the observation of the primitive church, and the Christian constitution of pious Cæsars."
Peter Martyr seems in word our easy adversary, but is indeed for us: toward which, though it be something when he saith of this opinion, "that
it is not wicked, and can hardly be refuted," this which follows is much more; "I speak not here" saith he, "of natural impediments, which may so happen, that the matrimony can no longer hold:" but adding, that he often wondered "how the ancient and most Christian emperors established those laws of divorce, and neither Ambrose, who had such influence upon the laws of Theodosius, nor any of those holy fathers found fault, nor any of the churches, why the magistrates of this day should be so loth to constitute the same. Perhaps they fear an inundation of divorces, which is not likely; whenas we read not either among the Hebrews, Greeks, or Romans, that they were much frequent where they were most permitted. If they judge Christian men worse than Jews or pagans, they both injure that name, and by this reason will be constrained to grant divorces the rather; because it was permitted as a remedy of evil, for who would remove the medicine, while the disease is yet so rife?" This being read both in "his Commonplaces," and on the first to the Corinthians, with what we shall relate more of him yet ere the end, sets him absolutely on this side. Not to insist that in both these, and other places of his commentaries, he grants divorce not only for desertion, but for the seducement and scandaTous demeanour of an heretical consort.
Musculus, a divine of no obscure fame, distinguishes between the religious and the civil determination of divorce; and leaving the civil wholly to the lawyers, pronounces a conscionable divorce for impotence not only natural, but accidental, if it be durable. His equity it seems, can enlarge the words of Christ to one cause more than adultery; why may not the reason of another man, as wise, enlarge them to another cause?
Gualter of Zuric, a well-known judicious commentator, in his homilies on Matthew, allows divorce for "leprosy, or any other cause which renders unfit for wedlock," and calls this rather "a nullity of marriage than a divorce." And who, that is not himself a mere body, can restrain all the unfitness of marriage only to a corporeal defect?
Hemingius, an author highly esteemed, and his works printed at Geneva, writing of divorce, confesses that learned men "vary in this question, some granting three causes thereof, some five, others many more;" he himself gives us six, "adultery, desertion, inability, error, evil usage, and impiety," using argument "that Christ under one special contains the whole kind, and under the name and example of fornication, he includes other causes equipollent." This discourse he wrote at the request of many who had the judging of these causes in Denmark and Norway, who by all likelihood followed his advice.
Hunnius, a doctor of Wittenberg, well known both in divinity and other arts, on the 19th of Matt. affirms, "That the exception of fornication expressed by our Saviour, excludes not other causes equalling adultery, or destructive to the substantials of matrimony; but was opposed to the custom of the Jews, who made divorce for every light cause."
Felix Bidenbachius, an eminent divine in the duchy of Wirtemberg, affirms, "That the obstinate refusal of conjugal due is a lawful cause of divorce" and gives an instance, "that the consistory of that state so judged."
Gerard cites Harbardus, an author not unknown, and Arnisæus cites Wigandus, both yielding divorce in case of cruel usage; and another author, who testifies to "have seen, in a dukedom of Germany, marriages disjointed for some implacable enmities arising."
Beza, one of the strictest against divorce, denies it not "for danger of life from a heretic, or importunate solicitation to do aught against religion:" VOL. I. 2 E 2
and counts it "all one whether the heretic desert, or would stay upon intolerable conditions." But this decision, well examined, will be found of no solidity. For Beza would be asked why, if God so strictly exact our stay in any kind of wedlock, we had not better stay and hazard a murdering for religion at the hand of a wife or husband as he and others enjoin us to stay and venture it for all other causes but that? and why a man's life is not as well and warrantably saved by divorcing from an orthodox murderer, as an heretical? Again, if desertion be confessed by him to consist not only in the forsaking, but in the unsufferable conditions of staying, man may as well deduce the lawfulness of divorcing from any intolerable conditions, (if his grant be good, that we may divorce thereupon from a heretic,) as he can deduce it lawful to divorce from any deserter, by finding it lawful to divorce from a deserting infidel. For this is plain, if St. Paul's permission to divorce an infidel deserter infer it lawful for any malicious desertion, then doth Beza's definition of a deserter transfer itself with like facility from the cause of religion, to the cause of malice, and proves it as good to divorce from him who intolerably stays, as from him who purposely departs; and leaves it as lawful to depart from him who urgently requires a wicked thing, though professing the same religion, as from him who urges a heathenish or superstitious compliance in a different faith. For if there be such necessity of our abiding, we ought rather to abide the utmost for religion, than for any other cause; seeing both the cause of our stay is pretended our religion to marriage, and the cause of our suffering is supposed our constant marriage to religion. Beza therefore, by his own definition of a deserter, justifies a divorce from any wicked or intolerable conditions rather in the same religion than in a different.
Aretius, a famous divine of Bern, approves many causes of divorce in his "Problems," and adds, "that the laws and consistories of Switzerland approve them also." As first, "adultery, and that not actual only, but intentional;" alleging Matthew v. "Whosoever looketh to lust, hath committed adultery already in his heart. Whereby," saith he, "our Saviour shows, that the breach of matrimony may be not only by outward act, but by the heart and desire; when that hath once possessed, it renders the conversation intolerable, and commonly the fact follows." Other causes to the number of nine or ten, consenting in most with the imperial laws, may be read in the author himself, who avers them "to be grave and weighty. All these are men of name in divinity; and to these, if need were, might be added more. Nor have the civilians been also blinded by the canon. is not to avouch the justice of those old permissions touching divorce.
Alciat of Milain, a man of extraordinary wisdom and learning, in the sixth book of his "Parerga," defends those imperial laws, "not repuguant o the gospel," as the church then interpreted. "For," saith he, "the ancients understood him separate by man, whom passions and corrupt affections divorced, not if the provincial bishops first heard the matter, and judged as the council of Agatha declares:" and on some part of the Code he names Isidorus Hispalensis, the first computer of canons, "to be in the same mind." And in the former place gives his opinion, "that divorce might be more lawfully permitted than usury.'
Corasius, recorded by Helvicus among the famous lawyers, hath been already cited of the same judgment.
Wesembechius, a much-named civilian, in his comment on this law defends it, and affirms, "That our Saviour excluded not other faults equal to adultery; and that the word fornication signifies larger among the Hebrews