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The History of Divorce and Re-marriage (1910) - Wilkins

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  • 1. THE HISTORY OF DIVORCE AND RE-MARRIAGE
  • 2. ANTIQUARIAN ESSAYS. BY THE SAME AUTHOR. THE DISAGREEMENT BETWEEN THE DEAN AND CHAPTER OF WESTBURY AND THE VICAR OF HENBURY, WITH TERMS OF SETTLEMENT, IN A.D. 14.6.1 . B.y the Right Reverend JOHNC ARPENTERD, .D., Lord Bishop of Worcester and Westbury. ALSO NOTES ON THE EARLIEST EFFORTS TO FOUND A BISHOPRIC FOR BRI~TOL. MENTS, TO SIR RALPH SADLEIR. COPY OF THE DEED OF THE SALE OF THE NEXT PRE. SENTATION BUT ONE TO HENBURY VICARAGE, IN A.D. r678. SOME CHAPTERS IN THE ECCLESIASTICAL HISTORY OF WESTBURY-ON-TRYM-I. DESECRATIOONB BISHOPC ARPENTERT'SO MB. 2. DECAY OF TBE COLLEGE BUILDLNGS. 3. D~SPERSIOONX. CHURCHL ANDS. 4. ALIENATIONO F TITHES. 5. SALE OF LIVING. TO WHlCH IS APPENDED A LIST OF ABBOTS, DEANS. AND VICARS SINCE A.D. 725. THE "POOR BOOK" FROM A.D. 1656-1698 OF THE TITHINGS OF WESTBURY, STOKE BISHOP, AND SHIREHAMPTON, WITH INTRODUCTION AND NOTES. ALSO FAITH HEALING. A PLEA FOR GREATER RECOGNITION IN THE CHURCH AND BY THE MEDICAL PROFESSION.
  • 3. THE HISTORY DIVORCE AND. .. R:. E-MARRIAGE .a.a.. . . . '.. :. FOR ENGLIS~::E$~~&C~HMEN ::. .:::: ..:: :: . ' . . ..' .. ::-::: ' COMPILED FROM H0.L.Y: SC..F +.If .~ .~. B B. JC H.. .U p~fi.COUNCZLS . . . . . . AND AU%~&ITAZYV~. w&IY& :.' BY H. J. WILKINS, D.D. YICAN UP WESl'BURY-ON-TIIYM, AND RBADER Or BIDLAND CBAPLL, n11sTOL C/ LONGMANS, G R E E N AND CO. 39 PATERNOSTER ROW, LONDON NEW YORK, BOMBAY AND CALCUTTA
  • 4. PREFACE. THESE pages are the outcome of a study, reluctantly undertaken, but forced upon me by the conditions of wok in which I am engaged. They are printed in the hope that they may be of some help to Churchmen and others, when much that is contrary to the teaching of Christ atld His Church is being circulated. The question for members of the Church of England (and for other Christians) is not "What do well-known novelists,lawyers, highly-placed Churchmen, and others consider ought to be the terms of marriage and divorce?" but "What is the teaching of our Lord and Saviour Jesus Christ, Who, we believe, well knew what was best for the highest and eternal welfare of mankind amidst all "the changing scenes of life ?"I and so, "What is 'In some quarters it sought to push the kenosis (emptying) of Christ to such a. poaition that His knowledge would be vary little above that of the average Jew of His time, a. position very far diiier-ant to the conception of the Christian Church. Y
  • 5. vi PREFACE the teaching and discipline of the Church of England, as given in her Prayer Book and Canons ? " In the compilation of these pages I have endeavoured to acknowledge gratefully the many and various authorities and works used ; but if from inadvertence any have been cited without such acknowledgment, sincere thanks is here offered. H. J. WILKINS.
  • 6. CONTENTS. CHAPTER PLGE I. Divorce and Re-Marriage among the Greeks, Romans, and Jews at the time of Christ and His Disciples . . . . . . . 1 11. The Tcaohing of Christ . . . . . . 6 111. The Gospels of St. Mnrk and St. Luke . . . 16 IV. The Prohlem in the Gospel of Matthew . . . 28 V. Criticism of the Gospel of Metthew . . . 30 VI. The Teaching of St. Paul . . . . . 47 VII. Historical Evidence till A.D. 314 . . . . 51 VIII. A.D. 314-527. Prom Constantino to Justinian . 08 IX. The Eastern Church after Justinian, A.D. 692. The Council in Trullo . . . . . 97 X. The Anglican Church . . . . . . 112 XI. From the Norman Oouquest . . . . 127 XII. After the Reformation . . . . . . 146 XIII. The Divorce Act, 1857 . . . . . . 157 XIV. The Lambeth Couferenoe of 1908 . . . 164 XV. Conclusions . . , . . . . . 171 Index . . . . . ,181 vii
  • 7. CHAPTER I. DIVORCE AND RE-MARRIAGE AMONG THE GREEKS. ROMANS, AND JEWS AT THE TIME OF CHRIST AND HIS DISCIPLES. OUR Lord Jesus Christ and His earliest disciples would, for the most part, have to encounter the mar-riage laws and customs of three nations-the Greek, Roman, and Jewish. The Roman Empire was at this time supreme over the whole world-as then known-and communica-tion had been made easy by the magnificent roads and caravan routes ; while the Greek language was the general medium for interchange of thought and commerce. The policy of the Roman Empire was (unless im-perial interests demanded otherwise) one of tolera-tion and non-interference with the marriage as well as other laws and customs of the nations who had been conyuered.' "By the Athenian Law," writes Dr. Howard,= "which probably was not entirely supplanted by the Roman until A.D. 212,3 divorce was freely granted to either spouse. The benefit inured, however, mainly ' Cf. p. 550 of Oohu's " Gospsls and Modern Researoh". '(History of Ni~atrimonial Institutions," 701. 11, p. 12. Geffeken, op, cit. p. 15. 1
  • 8. 2 DIVORCE AND RE-MARRIAGE to the husband, since to begin proceedings for a divorce the wife was required to present in person to the archon a written statement of her desire; and this, in a society where popular sentiment relegated woman to a seclusion truly Oriental, it was in practice exceedingly hard to d0.l Among the Romans, and some time before Christ commenced His earthly ministry, the stricter forms of marriage; with their right of divorce to the husband alone, had passed away, and free contract both for husband and wife had taken their place, the marriage form-excepting for the fiamimes-being "a simple private agreement," and divorce "a formless private transaction" open equally to both parties. About 18 B.G., according to the Lax Julia de add-teriis, the declaration of divorce must be made before seven witnesses-Roman citizens of full age : but this enactment was only in order to secure publicity of what was hitherto a simple private transaction, and not to restrain divorce. It will not be necessary, for the purposes of these pages, to consider the resulting depravity and vice 1 Thus Aloibiades collected a. bsnd of men and dragged his wife Hipparets from the arohon, when she attempted to get a divaroe on socount of his 1iosntiousness.-Wolsey, "Divorce and Legislation.'' p. 31. aCf. notein Howard's lLMe*trimoniailn stitutions," Vol. 11, p. 14, whioh states: ',By eo?%fa?reatio and coemptio the man acquired the mams et the nuptials; but the usus, ar the form through whioh transition was made from the striot to the free merrisge, he seems to have gained it only bg a. year's prescripiion, when the women neglected her privilege of trinoctium. In the meantime, before the manus wan aoquired, it is 8 question whether the woman was lagallg usor or merely vroris loco". Here fallow eight authorities.
  • 9. GREEKS, ROMANS, AND JEWS S from such conditions of marriage and divorce which degraded Roman society, and which so many writers of those times satirized. Seneca (c. 3 ~.c.-65A .D.) denounced this evil with special vehemence, declaring that divorce in Rome no longer brought with it any shame, and that there were women who reckoned their years rather by their husbands than by the consul^.^ Among the Jews, at the time of Christ, divorce was the privilege of the msn alone.2 The position among the Jews at this time is very clearly given by Edersl~eim.~" To begin with, divorce (in the legal sense) was regarded as a privilege ac-corded only to Israel, not to the Gentiles. On the question what constituted lawful grounds of divorce, the schools were divided. Taking their departure from the sole ground of divorce mentioned in Deuter-onomy xx~v1. , ' a matter of shame' (literally naked-ness), the School of Shammai applied the expression to moral transgressions only, and, indeed, exclusively to unchastity. It was declared that if a woman were as mischievous as the wife of Abab, or (according to tradition) the wife of Korah, it were well that .her husband should not divorce her, except it be on the ground of adultery. At the same time, this must not ' Cf. Lecky, "History of European Marsls," Vof. 11, p. 307; "Ssn." Ds Bsnof. 111. 16. At most there was only a faint trsce of thewoman's later right, ssnotioncd by the Talmud, of demanding a separation; of. Exod. xxr. 7-11, as interpreted by Amram, "The Jowish Law of Divorce," p. 55 ff.; Howard, Yo1.11, p. 13, and note. a "Life and Times of Jesus the Mesuiah," Vol. 11, pp. 532, 333.
  • 10. 4 DIVORCE AND RE-MARRIAGE be regarded as a fixed legal principle, but rather as an opinion and good counsel for conduct. The very passages from which the above quotations are made also afford only too painful evidence of the laxity of views and practices current. And the Jewish Law unquestionably allowed divorce on almost any ground, the difference being, not as to what was lawful, but on what grounds a man should set the law in motion, and make use of the absolute liberty which it accorded him. "But the School of Hillel proceeded on different principles. It took the words 'matter of shame ' in the widest possible sense, and declared it sufficient ground for divorce if a woman spoiled her husband's dinner. Rabbi Akiba thought that the words 'if she find no favour in his eyes' implied that it was sufficient if a man found another woman more attrac-tive than his wife. All agreed moral blame made divorce a duty, and that in such cases a woman should not be taken back. According to the Mishnah, women could not only be divorced, but with the loss of their dowry, if they transgressed against the Law of Moses and of Israel. The former is explained as implying a breach of the law of tithing, of setting apart the first of the dough, and of purification. The latter is explained as referring to such offences as that of going in public with uncovered head, of spinning in the public streets, or entering into tall< with men; to which others add that of brawling, or of disrespect-fully speaking of her husband's parents in his presence. A troublesome or quarrelsome wife might certainly be sent away; and ill-repute or childlessness (dur-
  • 11. GREEKS, ROMANS, AND 3EWS 5 ing ten years) were also regarded as valid grounds of divorce." Such then were the conditions of divorce obtain-ing among the Greeks, Romans, and Jews, and carrying with it the right of re-marriage.
  • 12. CHAPTER I1 THE TEACHING OF CHRIST WHATw as the attitude of Christ towards the depraved conditions of life mentioned in the preceding pages ? What were His commands? Turning to the New Testament we find the follow-ing statements attributed to Christ: (but the phrase "except for fornication," as given in the Gospel according to Matthew, is disputed, modern Biblical criticism proving that these words did not form part of the teaching of Christ. The subject will be ex-amined in the course of these pages). Autlwrized Version. Verse 31.-It hath been said, Whosoever shall put away his wife, let him give her a writing of divorce-ment : 32. But I say unto you, That whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery : and whosoever shall marry her that is divorced committeth adultery. Revised Version. 31. It was said also, whosoever shall put away his wife, let him give her a writing of divorcement : 32. But I say unto you, that every one that putteth away 6
  • 13. THE TEACHING OF CHRIST 7 his wife, saving for the cause of fornication, maketh her an adulteress: and whosoever shall marry her when she is put away committeth adultery. Westcott and Hort's Greek Testament. 32. 'EYh 62 heyw hPiv ~TTL& F 6 b~ohdwuT T)U yuvaka bv~o6T ~PEICT~XF ~~OrrUop vela~T OL& ahqv po~xeu0ljua~[ ml $7 f'dv ~~oheh~~71~apv4cqn uPO L-x~ T~L]. MATTHEW XIX. Authorized Version. 3. The Pharisees also came unto Him, tempting Him, and saying unto Him, Is it lawful for a man to put away his wife for every cause? 4. And He answered and said unto them, Have ye not read, that He which made them at the beginning made them male and female, 5. And said, For this cause shall aman leave father and mother, and shall cleave to his wife: and they twain shall be one flesh? 6. Wherefore they are no more twain, but one flesh. What therefore God hath joined together, let not man put asunder. 7. They say unto Him, Why did Moses then com-mand to give a writing of divorcement, and to put her away? 8. He saith unto them, Moses because of the hard-ness of your hearts suffered you to put away your wives : but from the beginning it was not so. 9. And I say unto you, Whosoever shall put away his wife, except it be for fornication, and shall marry
  • 14. 8 DIVORCE AND RE-MARRIAGE another, committeth adultery: and whoso marrieth her which is put away doth commit adultery. 10. His disciples say unto Him, if the case of the man be so with his wife, it is not good to marry. 11. But He said unto them, All 171.07~ cannot receive this saying, save they to whom it is given. Revised Vevsion. 9. And I say unto you, Whosoever shall put away his wife, except for fornication,' and shall marry an-other, committeth adultery: "nd he that merrieth her when she is put away committeth adultery. Westoott avid Hart's Greek Testament. 9. [Xhyw Bi Cpiu ZTL 8~ 11u C;aohhuq T+U ywuai~a ah06 p+ Qai aopueiq ~ayia pdun IIXXTV ~OLXZTUL.] Alternative reading given hiyo SB +lv, 87 Bv ci~ohl;ug r+v yuuail~aa h~oirr apercrh~X 6you vopuela~r,o cei a$- T+V po~~~~B+~jua6a ir~l v,o Xehvpf'v~u~ apljuaq~ OLX~TUL. Authorized Version. 2. And the Pharisees came to Him, and asked Him, Is it lawful for a, man to put away his wife ? tempting Him. 3. And He answered and said unto them, What did Moses command you ? 4. And they said, Moses suffered to write a bill of divorcement, and to put her away. 1 Some ancient authorities read saving fo? the cause of fornication lnaksth her an adultpress: ss in oh. v. 32. %The following words, to the end of the verse, are omitted by some anoient authorities. hlarginsl notes.
  • 15. TBE TEACHING OX CHRIST 9 5. And Jesus answered and said unto them, For the hardness of your heart he wrote you this precept. 6. But from the beginning of the creation God made them male and female. 7. For this cause shall a man leave his father and mother, and cleave to his wife; 8. And they twain shall be one flesh: so then they are no more twain, but one flesh. 9. What therefore God hath joined together, let not man put asunder. 10. And in the house His disciples asked Him again of the same matter. 11. And He said unto them, Whosoever shall put away his wife, and marry another, committeth adultery against her. 12. And if a woman shall put away her husband, and be married to another, she committeth adultery. Revised Version. 11. And He saith unto them, Whosoever shall put away his wife, and marry another, committeth adultery against her : 12. And if she herself shall put away her husband, and marry another, she committeth adultery. Westcott and Hort's Greek Testament. 11. ~aXl& ~ELa i~oiv'0&~u &~oh6agT ~Uyu uat~a a6~oCn ai yap~ugdX hqu ~OLX~TZUT L'a i~ljux,a i <Au ci.rioXuuaua T~Uil ~6~a3a71 jr yapjug li'hXou po~xi?~a~. LUKE XVI. Authorized Vemion. 18. Whosoever putteth away his wife, and marrieth another, committeth adultery: and whosoever mar-
  • 16. 10 DIVORCE AND RE-MARRIAGE rieth her that is put away from her husband com-mitteth adultery. Bevised Versio?~. 18. Everyone that putteth away his wife, and marrieth another, comlnitteth adultery: and he that marrieth one that is put away from a husband com-rnitteth adultery. Westcott and Hort's Greek Testantent. 18. Il& 6 rl~oh6ouT ~Uyu uaina ahoG nal yaPGu Edpau p~X~hen~a,i 6 a'~oXeXu~f'ur~l~v 6a' v8pb yapGu ~OLXE~E'. The earliest Greek manuscript extant is probably the Codex Vaticanus (B) and is generally assigned to the fourth century. I t is possibly a few years older than the Codex Sinaiticus (N), which is assigned to the middle of the fourth century. Before entering upon the study of the actual words, attributed to Christ, a few preliminary considerations will be neces-sary in order to enter into the points to be raised in the course of these pages in reference to the trust-worthiness of the Gospel narratives. Admittedly the Gospels are not an exhaustive ac-count of the life of Christ, for "on the very shortest estimate the length of the ministry must have ex-tended to about 400 days, and I doubt if our Gospels contain stories from forty separate days. So that nine-tenths at least of the public life of Jesus remains to us a blank, even if we were to take every recorded incident as historical and accurately reported. And all the recorded sayings of Christ, how long would they take to pronounce? With due gravity and
  • 17. THE TEACHING OF CJXRIST 11 emphasis they might take six hours-hardly perhaps so much." But nevertheless the Gospels give us the character of Jesus and the fundamentals of His teaching? The Gospels, in the form in which we have them, were not written till probably from twenty to sixty years after Christ's work on earth was finished. Yet doubtless there were sayings committed to writing and notes made by persons interested in the teaching of Christ, for " the common use of writing among the lower classes in Roman times, and also the presence of a professional scribe among the Apostles, make it probable that early notes end docu~nentso f Christian teaching were in use ".3 Still it must be remembered that the usual Jewish methods of teeohing were oral and that they plaoed the highest value on oral tradition. Christ Rimself committed nothing to writing, and doubtless the Apostles-thorough Jews-followed for the most part His method of teaching: nor would they feel any necessity to commit His teaching to writing, since they looked for the speedy return of Christ. 1 " Gospel History and its Trausmission," p. 20, by I?. C. Burkitt, D.D., Norrisisn Protossor of Divinity in the Universityof Cambridge. a c'Curiously enough Dr. Salmon uses almost the same expres-sion as Sir Wm. Ramsay :- "'The moreIstudy the Gospels the more convinced I am that we have in them oontemporsueous history; that is to say, thst we havs in them the stories told of Jesus immediately after His death, and which hed been oiroulated, and ss I am disposed to believe, put in writing while He was yet alive' '' (LL The Human Element in the Gospels," p. 274).-Prof. Sanday, c%ife of Christ in Recent Re-so~ roh," p. 172. Dr. Blinders Petrie'su Growth of the Gospels," p. 52.
  • 18. 12 DIVORCE AND RE-MARRIAGE But with the non-fulfilment of that hope and the extension of the area of teaching, the necessity for written documents arose: partly on the ground that the new catechists, who would teach for the Apostles, would need an authoritative statement both for their guidance and to avoid heretical teaching, and partly because the number of the Apostles and early disciples mas being rapidly diminished by death. Dr. Petrie writes : "The need of a written record for the Churches, which were springing up in distant regions before A.D. 50, would make some formal collection of docu-ments requisite by them. Some form of Gospels was thus both probable and necessary at an early date." So then from about A.D. 50 and onwards many Gospels were composed. Luke (I. 1) wrote : " For as much as many have taken in hand to set forth in orde~ a declaration of those thi~zgsw hich aremost surely believed among us," etc.; but these written Gospels did not entirely supersede oral tradition till about A.D. 120. I t will be readily understood that in these records, based on oral tradition, many variations, interpola-tions, and interpretations, according to the point of view of the writer, would appear. The ground for surprise is not that they are so many, but that they are not very many more. The sources used by our Evangelists were " altered freely. They changed, added, omittied." 2 But the process of sifting these records was at work, and it went on from the middle of the second century till the fourth century. "In Athanasius' Canon 1 " Growth of the Gospels," pp. 52, 53. 2 Prof. Burltitt, p. 21.
  • 19. THE TEACHING OF CHRIST 13 (A.D. 365-370) we meet for the first time with a list of New Testament books identically the same as our own. This Athanasian Canon was confirmed by the Third Council of Carthage (A.D. 397), though the Eastern Church still refused to accept it. In A.D. 692 East and West combined and confirmed the decision of the Council of Carthage."' How difficult the task of deciding the text of the New Testament must be will be gathered from the following passage : " The New Testament consists of 7959 verses. In 1892 there were said to be more than 150,000 various readings, or an average of twenty variations for each verse." This statement will prove alarming to many devout Christians, and especially to those who cling to the theory of verbal inspiration; but it need not be so, for most variations are unimportant as regards the teaching or meaning, although many as regards number. " The last verse of the Bible will illustrate this :- "(a) The grace of the Lord Jesus be with you all. Amen. " (b) The grace of our Lord Jesus be with you all. Amen. " (c) The grace of the Lord Jesus Christ be with you all. Amen. "(d) The grace of Christ be with you all. Amen. " (8) The grace of Christ be with you all. Amen Amen. "(f) The grace of Christ be with us all. Amen. ' Oohu's " Gospels in the Light of Modern Resewoh," p. 155. a Cohu, p. 157.
  • 20. 14 DIVORCE AND RE-MARRIAGE " (g) The grace of Christ be with all. Amen. " (h) The grace of Christ be with all men. Amen. " (i) The grace of Christ be with the saints. Amen. "(j) The grace of Christ be with all t7ze saints. Amen." Further, there are some passages in the Authorized Version of theNew Testament which are now generally admitted to beinterpolations. This is borneout by the marginal notes in the Revised Version : compare :- 1. Against Matthew VI. 13, where "For thine is the kingdom and the power and the glory for ever, Amen," is omitted, and a marginal note inserted : "Many authorities, some ancient, but with variations add, 'For thine is the kingdom and the power, and the glory, for ever. Amen.' " 2. Against Matthew XVI. 2-4 is placed the note : "The following words to the end of verse 3 are omitted by some of the most ancient authorities and other important authorities ". 3 . Matthew XVI. 21 is altogether omitted, and the note runs : " Many authorities, some ancient, insert verse 21. But this kind goeth not oat save by prayer and fasting." See Mark IX. 29. 4. Against Mark XVI. verses 9-20, the following marginal note is placed: "The two oldest Greek manuscripts, and some other authorities, omit from verse 9 to the end. Some other authorities have a different ending to the Gospel." 5. Against John VIII. 1-11 appears : " Most ancient authorities omit John VIL 53-VIII. 11. Those which contain it vary very much from each other." ' Cohu, pp. 151,158.
  • 21. THE TEACHING OF CHRIST 16 It will not be necessary to pursue this further, as cases can easily be multiplied : enough has been pro-duced to show that variations and interpolations are frequently met with in the Gospels. But there are some variations the importance of which cannot be over-estimated or minimized, e.g. the " exception " in the Gospel according to Matthew in reference to the subject under discussion, and to-wards which modern Biblical criticism has more and more directed attention : and it must be remembered that true criticism, reverently and carefully pursued " hringeth men about to religion," while no good can possibly ensue to "true religion and sound learning " by refusing to "verify conclusions ". At the same time it will be helpful to remember that, "whatever doubt there may be as to the actual words of Christ in some oases, the existence of the Church is an impregnable witness to the historical Christ, whose living voice was the 'Gospel' of the etbrly Christians ".
  • 22. CHAPTER 111. THE GOSPELS OF ST. MARK AND ST. LUKE. BEBORE examining the disagreement in the words at-tributed to Christ, it will be as well to dispose in the first place of the ground which is common in them. From the statement in Matthew and Mark we learn that the Pharisees came to Christ and sought to embroil Him in a dispute with either the stricter School of Shammai (p. 3) or the laxer School of Hillel (p. 4) by putting to Him the question, "Is it lawful for a man to put away his wife" (Mark X. 1) for every cause? (Matt. XIX. 3). The answer of Christ satisfied neither party, for He raised marriage to a plane vastly higher than that upon which either school placed it, and convicted them of going beyond the law of Moses, which they professed themselves to be zealous of guarding. That which Moses had sz~ffered (Matt. XIX. 8) -not commanded as the Pharisees said (ibid. XIX. 7) - because of the "hardness of their hearts " (Mark x. 5), the School of Shammai had converted into the normal standard: while the School of Hillel, by its lax interpretation had "made the law of none effect ". Christ recalls them to the record of the first mar-riage in the Bible, as given in the first chapter of Genesis. 16
  • 23. THE GOSPELS OF ST. MARK AND ST. LUKE 17 The form of the story, in which that truth is en-shrined, does not concern our present purpose : that would be a separate study in itself.' What is im-portant to notice is that Christ takes the truth therein embodied and makes it His own. "But from the beginning of creation, male and female made He them. For this cause shall a man leave his father and mother and shall cleave to his wife; and the twain shall become one flesh: so that they are no mow twain, but one flesh. What therefore God hath joined together, let not man put asunder " (Mark x. 5-10). This union of man and woman, living in harmony with the Will of God and in Spiritual Communion with God, is pronounced by Christ to be indissoluble. The disciples of Christ were much perplexed at the teaching of their Master as to the indissolz~bilitg of marriage (for otherwise it would not have appeared to them so great a hardship if Christ had but en-dorsed the teaching of the School of Shammai in its strictest form), as based upon the teaching in con-nexion with the first marriage recorded in the Old Testament. Typical Palestinian Jews, with a pro-found reverence for the law of Moses, they were amazed that Christ had treated the Mosaic privilege as a concession to human weakness and had gone behind that privilege. So we are told by Mark (x. 10-12) that they returned to the question again when they were alone with Christ: "And in the house the disciples asked Him again of this matter. And He saith unto them, Whosoever shall put away 'Of. Prof. Driver's " Genesis ". 2
  • 24. 18 DIVORCE AND RE-MARRIAGE his wife, and marry another, committeth adultery against her : and if she herself shall put away her husband and marry another, she committeth adultery ". The prohibition is absolute : there is no such concession as that, "except for fornication," given by Matthew: marriage, as described by Christ, is indissoluble : a husband and wife, if they separate, may not contract a second marriage, because the first remains. To consider Mark's Gospel in relation to Matthew and Luke more closely. In doing so, attention must be restricted to some only of the synoptic problems, and to those which bear upon our present subject. From a harmony of the three Gospels, Matthew, Mark, and Luke, it will be seen that there is such an agreement in language and material, which renders the conclusion almost beyond a doubt that they are not three original and independent accounts, but that there is a "common gospel running through the three Gospels, and that it is almost identical with our Mark, which is now, it is generally agreed, the earliest Gospel ". " Opinion, however, has gone more and more in the other direction. The independence and priority of Mark have been accepted by some (e.g. Ritschl) who originally held the other view ; and scholars of different tendencies (Weisse, Wilke, Lach-mann, Reuso, Thiersch, Ewald, Volkmar, Holtzmann, Schenkel, Weizsacker, Weiss, Meyer, etc., and most English authorities) have been led, though not always 1 It will not be neoesssrg, for the purposes of these pages, to dis-cuss the question as to what use Mark made of documents, etc., usually designsted " Q ".
  • 25. THE GOSPELS OF ST. MARK AND ST. LUKE 19 in the same way, to the common conclusion that Mark is the most primitive of the Gospels. I t is also very generally held that our second Gospel, or a source corresponding substantially to it, forms the basis of the 6rst and third Gospels." " Thus it has been shown that if Mark is divided into 106 sections or paragraphs, Matthew borrows 93 of these, Luke 81. There are only five which one or the other of these two Evangelists has not bodily incorporated in his narrative. Or if we take Mark 674 (R.V.) verses, only 50 remain when Matthew and Luke have made their loans. A glance at Rush-brooka's ' Synoptioon ' and Sir John Hawkins' 'Horze Synoptica?' will prove convincingly that this extra-ordinary coincidence between the three Gospels is not limited to their matter, it extends even to words and phrases and turns of expression." Note.-Schwitzer states : " Weiss made this discovery for himself in March, 1837, and his argu-ments for the priority of Mark rest mainly on the following propositions :- " 1. In the first and third Gospels traces of a common plan are found only in those parts which they have in common with Mark, not in those which are common to them but not to Mark also. " 2. In those parts which the three Gospels have in 'Cf. Hastings' "Diotionary of the Bible," Vol. 111, p. 259, where this qnestion is very ole~~alrygu ed. a Cohu, p. 204. "'The Queat of the Historicel Christ," pp. 122.4, English trans. 1910.
  • 26. 20 DIVORCE AND RE-MARRIAGE common to them, the 'agreement' of the other two is mediated through Mark. "3. In those sections which the first and third Gospels have, but Mark has not, the agreement con-sists in the language and incidents, not in order. Their common source, therefore, the 'Logia' of Matthew "-which will be dealt with later on-" did not contain any type of tradition which gave an order of narrative different from that of Mark. " 4. The divergencies of wording between the two other synoptists is in general greater in part where both have drawn on the Logia document than where Mark 1s their source. " 5. The first Evangelist reproduces this Logia document more faithfully than Luke does: but this Gospel seems to have been of a later origin. " Wilke came to agree in his work of the same year, ' The Earliest Evangelist, a Critical and Exegetical Inquiry into the Relationships of the First and Third Gospels '. Reuso defended in 1842 the priority of Mark in his ' History of the Sacred Writings of the New Testament,' as did El-uald in 1850, Ritsohl ('Origin of the Ancient Catholic Church ') in 1850, Rdville in 1862. In 1863 the foundations of the Marcian hypothesis wgre relaid more firmly than be-fore by Holtzmann's work." Prof. Burkitt states : " Until Lachmann's time the prevailing opinion had been that Matthew's Gospel was the earliest, or at least that it offered the most primitive arrangement. The priority of Matthew was upheld by critics of such different opinions as St. Auguetine and Ferdinand Christian
  • 27. Bauer, the founder of the Tiibingen School. I am not going to give t,he history of the ebb and flow of modern criticism; it will be enough to say that the relative priority of Mark is now accepted almost as an axiom by the great majority of scholars who occupy themselves with Gospel problems." So, then, it is accepted that Mark's Gospel is the earliest Gospel we have, and that it embodies the teaching of Peter and was written in Greek. Papias, A.D. 140, writes of Mark as the interpreter of Peter.% This is accepted by Irenmus, Justin, Clement of Alexandria, Tertullian, Origen, Eusebius, and Jerome. As to the date of colnposition of Mark's Gospel : "The period which seems to be most probable, both by historioal testimony and by internal considerations, is that between Irenzus' date "-after the death of Peter and Paul-" and the year A.D. 70. Weiss pro-poses the close of the seventh decade, or about A.D. 67. A date only a little before the destruction of Jeruselem, perhaps early in A.D. 70, is as near as we can get."$ Plummer gives A.D. 65-15 as the prob-able time. So, then, the earliest of the Gospels gives the teaching of Christ in reference to marriage and which was that it was indissoluble : "Whosoever shall put away his wife and marry another, committeth adultery '"The Gospol History s*na its Transmission," p. 38. aMdprar ipwveu.i$r ni7poyve uopivor, aoa 6#vnpducurrv, bnp~Bwr Fypa+ru, ob +$Y 70' T~$GL~b Srb mi) X~LVTD3~ )X CXBIYT~Y ) =p=xB(~~a. -Euseb. 'I Hist. Eoo." 111. 39. 3Haatings' " Dictionary of the Bible," Val. 111, p. 261 sgg.
  • 28. 22 DIVORCE AND RE-MARRIAGE against her: and if she herself shall put away her husband andmarry another, she committethadultery". THE TEACHINGOF ST. LUKE. Luke's testimony is to the same effect and is given in ch. XVI. 18. As to the authorship of Luke's Gospel, "it is manifest that in all parts of the Christian world the third Gospel . . . was universally believed to be the work of Luke. No one speaks doubtfully on this point." As to the date, "we may accept, perhaps, some date about the year 80, that is, the beginning rather than the end of theperiod (A.D. 78-93), within which it is placed by Harnack" (" Chronologie," pp. 246 ff.).2 Plummer gives the probable dates as A.D. 79-89. As regards the sources of Luke's Gospel, the fol-lowing results are obtained from a critical analysis :- 1. Luke " follows, over a large part of his narrative, the Gospel of Mark, and that probably in the form in which we have it, and not merely some under-lying document," although there are omissions and additions. Haruack *states : "It is unnecessary to prove anew that Luke used Mark". Peine5 states : "The use of Mark as one of Luke's sources is a generally established fact of Gospel criticism ". 2. In Luke and in Matthew there is much material in common over and above Mark's Gospel and which 1 Plummor, "St. Luke," p. 16; snd for esrly authorities see Hast-ings' "Diot~on&ryof the Bible," Vol. 111, p. 162. 2 See Hastings' "Dictionsry of the Bible," Val. 111, pp. 162-4. SHastings' "Dictionary of the Bible," Vol. 111, p. 167. 4 (' Chronologie," p. 652. 5 " Eins voroanniachs Ueberlieferung."
  • 29. THE GOSPELS OF ST. MARK AND ST. LUKE 23 may be called narrative and discourse material. This "implies a common written source, and that requirement is to be satisfied by the hypothesis, not of a direct use of Matthew by Luke, but by the supposition that both have used some one collection or more of our Lord's discourses." ' This common written source other than Mark and now completely lost, is for the most part considered to have been the " Logia " or sayings of Christ, col-lected by Matthew, the Apostle, about A.D. 50. Weiss states : "Luke's acquaintance with and the use of the Apostolic source of the first Gospel is just as certain as his want of acquaintance with the Gospel itself ". 3. "Besides these L~tke seems to have access to oral tradition, by which he corrects or supplements the narratives common to him and others." 4. Luke " used especially for chs. I. and 11. and the section beginning with rx. 51, some special written sources, which do not supply much information as to Galilee, and may have been connected in origin with Jerusalem ".4 Sources 2, 3, and 4 are often spoken of by Com-mentators under the title of " Q," from the German quellem, sources, springs, etc. Such then very briefly were the sources of lznow-ledge open to Luke, and with the knowledge of these he tells us, using what is obviously part of a longer discourse, that Christ taught that marriage was in- ' Hsstings' "Dictionary of the Bible," Vol. 111, pp. 167.8. s" Introduction to tho Nev Testament," Vol. 11, p. 249. 3 Cf. St. Luke 1. 1-3 ; Hastings' " Diotionaq of the Bible," Vol. 111, pp. 166.8, and Cohu, oh. xv11. 4Hostings' "Dictionary of the Bible," Vol. 111, p. 168.
  • 30. 24 DIVORCE AND RE-MARRIAGE dissoluble, and that a second marriage, during the lifetime of either of the separated partners, could not be anything but adultery. "Every one tht putteth away his wife, and marrieth another, committeth adultery: and he that marrieth one that is put away from her husband committeth adult,ery " (Luke xv~. 18 (R.V.) ).
  • 31. CHAPTEFi IV. THE PROBLEM IN THE GOSPEL OF MATTHEW. WE now pass to the teaching of Christ as given in the Gospel according to Matthew (see pp. 7-8). Before we deal with the "exception " therein con-tained, afew points must be considered. In Matthew's Gospel it will be noticed that the case of the man is alone considered: with the Jews it was intolerable that a woman should divorce her husband: it was the privilege of man alone. The same applies to Luke. Yet one very marked feature of Christ's undoubted teaching was equality of treatment for man and woman. I t will be noticed that the latter part of chs. v. 32 and XIX. 9 is not, according to Westcott and Hort, contained in some manuscripts. This in itself throws a clear light upon the way, in which early writers felt at liberty to deal with the manuscripts, which they used in the compilation of their own works. Prof. Burkitt thus comments: "This con-demnation of the womm is not found in Matthew and Luke, and it is pretty generally assumed to be a secondary addition, 'based on Roman Law,' says Dr. Schmiedel in 'Encyclopadia Biblica,' col. 1851. I venture to think such a view mistaken, and that so far from being a secondary addition it is one of the really primitive features of the Gospel of Mark, a 25
  • 32. 26 DIVORCE AND RE-MARRIAGE feature which was dropped out or altered where its historical meaning had been forgotten. It was no doubt monstrous to imagine that a Jewess should desert her husband to marry another man, but it was not quite unheard of. We know the woman and her history. Herodias had left her husband-the man whom Mark calls 'Philip,' but Josephus only knew as ' Herod '-in order to live with Antipas. Antipas also was guilty: he had put away the daughter of the Arabian King Aretas to marry Herodias, his half-brother's wife, she herself being his half-niece. "We need scarcely pause to inquire whether Hero-dias merely deserted her first husband, or whether, like her great-aunt Salome,' she availed herself of the methods of Goman procedure and divorced him. Our Lord's previous words show that He did not re-gard an immoral act as being any the less immoral for being carried out according to law: in either case I ventnre to think the saying as reported in Mark clearly implies a reference to Herodias, a reference which is singularly appropriate in the time and place."" The " exception,'' contained in chs. v. and XIX. of the Gospel according to Matthew, demands the most careful consideration. We have seen that Mark and Luke state that Christ taught that marriage was absolutely indissoluble, and that another marriage could not be entered into dur-ing the lifetime of the partners of the first marriage. But the Gospel according to Matthew is opposed to that of Mark and Luke, for it tells us that Christ Josephus, "Ant." xv. 7, 10. Z'' The Gospel History and its Trmsmission." pp. 100-1.
  • 33. THE PROBLEM IN THE GOSPEL OB MATTHEW 27 taught that divorce (which with the Jews carried the right of re-marriage), was allowable on the ground of fornication-practically the teaching of the School of Shammai at its best. It is, as already stated, impossible to over-estimate the importance of this exoeption with all the conse-quences that logically ensue. If that exception formed part of the teaching of Christ, then the Church of the iirst three centuries was in error in regard to its teaching, and also the Anglican Church from its earliest days till now, and the marriage service of the Church of England goes beyond the teaching of Christ, and binds burdens about the necks of its members, which for many men and women are beyond their u?zoided human strength to bear? If the "exception" formed part of the teaching of Christ, then it is logically possible to justify the claim for the extension of the grounds of divorce, and thus create a position in absolute contrast to the rest of the teaching of Christ. Granted the Church has (with some exceptions) considered ~opveia (fornication) to be the equivalcnt of /LOLX&~ (adultery), yet to a vast number of Chris-tians the all-important point is, not what the Church has taught or deduced from the words of Christ, but "Is it in the Bible ? " In other words, if the "exception " forms part of Christ's teaching, what is to be understood by these words? How would the Jews, to whom they were spoken, understand them? 1 We believe that God's grace is sufficient for whatever Ho de-mands of His servants.
  • 34. 28 DIVORCE AND RE-MARRIAGE There is the further difticulty in attributing the " exception " to Christ, because of the inaccuracy of the language employed and the confusion of thought ensuing by making rropvela identical with po~x~ia. It does not appear that "fornication " would in the Jewish mind be limited to prznuptial unchastity, as Bengel and Liddon limited it. That would mean, it has been argued, that the woman would be liable to punishment for her actions before she entered into any agreement with her husband, while a breach of the actual agreement could not be punished if divorce could only be for rropuia : for, although the penalty for adultery was already laid down in the Jewish Law, the exaction of that penalty was not permitted by the Roman Government. So to the Jewish mind (and it was to this mind Christ spolie) it would seem that fornication would be equivalent to that which destroyed the spiritual unity with God. Cf. Lev. XVII. 7, XX. 5; 2 Chron. XXI. 11 and 13; Is. XXIII. 17; Ezek. XVI. 15 and 29, etc.l If so, then the "modern " developments (in reality a ~artiarle turn to non-Christian systems), if the " ex- 'But Dr. Plummer in his "Oommentary an Matthew," relying on Hosea, Ir. 5 and Amos vrr. 17, thinks it is olesr thst ~apvda would convey the meaning of Prof. Tyson in his "Indis- ~olubility of Msrrisgs" states: "In the time of Christ it was uni-versally held to inolude illicit sexual intercourse on the pmt of the ~ifew, hile the School of Shammai limited it to that sin. Had this fact been always remembered, many wearisome controversies as to the meaning of tiopvs:e in St. Matthew would have been avoided: for it is there used in its Shammsio sense of unlawful intercourse on the part of the wife." But there are early Ch~istian writers, down to St. Augustine, agsinst Prof. Tysan's oanolusions.
  • 35. ception " does form part of Christ's teaching, cannot be said to be unscriptural if looked at from this standpoint. If this "exception " is Christ's, and so the way of forgiveness and restoration can be absolutely closed by re-marriage, what becomes of the injunction to forgive? Cf. Matt. XVIII. 21, 22, and Luke XVII. 4. The various suggestions of reading the " excep-tion" into Mark and Luke are too strained to be aucepted, and especially having regard to the very definite statement of the returning to the question by the disciples, and also because it stultifies the objection of the disciples, who could not have con-sidered it an intolerable hardship to be required to live on the same plane as the disciples of the School of Shammai. If, then, this "exoeption"-of which Mark and Luke know nothing-which is opposed to the general tenor of Christ's teaching, does not form part of the *ords and teaching of Christ, how is its presence in the Gospel according to Matthew to be accounted for?
  • 36. CHAPTER V. CRITICISM 08 TEE GOSPEL OF MATTHEW. To answer the question raised at the close of the last chapter, a consideration of the authorship and purpose of the Gospel according to Matthew will be necessary. In this Gospel according to Matthew, Mark's Gospel is largely drawn upon, as has been already shown. In addition the writer (who, it is held, was not Matthew the Apostle) had other sources of information,l and principally the " Logia " of the Apostle Matthew, which were in existence A.D. 50 and were written in Aramaic (Hebrew), the language spoken by Christ : but our Gospel is not a translation of those sayings into Greek, but was itself written origin-ally in Greek. For (1) " it may be taken as proved that our Matthew is not a translation from Hebrew 'Prof. Sanday, in his "Life of Christ in Recent Research," p. 172, dealing with Sir W. M. Ramsay's review af Earnaok's two books, writes: "There is one startling obiter dictum in the last article: viz. that 'the lost common source of Luke and Matthew (i.e. L'Q") . , . was writton while Christ was still living. It gives us the view whioh one of His disoiples entertained of Him and His te.ohing during His lifetime, and may be regarded as authoritative from the view of the disciples generally' (p. 424). I am afraid this is rather too optimistic. I do not doubt myself that 'Q' was sometime before L.D. 70. The more exsot date will de-pend upon the relabion in whioh it stands to Mark and Paul. Under both these heads there is much to be said on both sides." 30
  • 37. CRITICISM OF THE GOSPEL OF MATTHEW 31 or Aramaic ; (2) it is improbable that tho ' Logia ' or ' Oracles ' of the Lord, giving all due latitude to the term logion, included anythmg like so much nar-rative as does our Matthew."' Tradition from the second century named Matthew the Apostle as the author of our Gospel according to Matthew; but all scholars are now agreed that too much has been placed upon the words of Paphias, end that our Gospel was not written by the Apostle, although his teaching, as embodied in his " Logia " or sayings, is incorporated in it. "The Matthaan ' Logia ' have as their nucleus the common Apostolic didactic tradition, which took shape in the early Jerusalem days under the lead of Peter-a tradition which passed into Mark in its later Petrine form. At some stage which we cannot now trace they took on the special impress of the Apostle Matthew, prob-ably in a ministry of which Galilee, rather than Judaa, was the scene. In this form they passed, as Jewish unrest became more acute, to the neighboux-ing parts of Syria, in the person of our Evangelist among others, still receiving fresh elements in the course of oral teaching. Cf. Matt. XIII. 52, and XXIII. 34. And it was st this stage that they took written shape, as the main constituent in the mixed Gospel composed with the aid of the Marcan memoirs of Peter." Historical students will not need to be reminded 'Hsstings' "Dictionsry of the Bible," Vol. 111, p 296; see also Oohu, pp. 357 spy. a Of. Prof. Bartlett in Hastings' "Dictionary of the Bible," Vol. 111, pp. 296, 297, 298, Ib~dp. . 303.
  • 38. 32 DIVORCE AND RE-MARRIAGE how whole speeches have been placed in the mouths of orators by writers (cf. Thucydides) when they were not spoken at all, and how respect for a person often led to the use of his name and the ascribing of opinions to him by admiring writers, and how easy it had been for "indirect authorship " to become " direct author-ship". In other words, the ideas and canons of writing and criticism of to-day must not be read into those of ancient times. From internal evidence the date of the Gospel according to Matthew is about A.D. 70. Hastings' " Dictionary of the Bible " gives 68-70, Plnmmer 67- 80, as probable dates. What was the purpose of our Gospel? and in answering this question we shall get much Iight upon the disagreement of Matthew with Mark and Luke, particularly in reference to the subject under dis-cussion. The writer of the Gospel according to Matthew is a Jew and writes for Jews-the Gospel is "at once apologetic and polemical. . . . Jesus is God's Mes-siah, in spite of all superficial appearances, and that by realizing the essence of Moses and the Prophets." ' To the Jew the Old Testament was "the repository of all wisdom? and therefore Matthew must show, if his fellow-countrymen are to accept the teaching of Christ, that He was a Jew, and that " He came not to destroy the law but to fulfil the law ". In doing this Matthew has that common character-istic of the early Christians of seeing type and prophecy 1 Prof. Bartlett in Hastings' "Diotionary of the Bible," p. 304. ZCohu, p. 360.
  • 39. CRITICISM OF THE GOSPEL OF MATTHEW 33 everywhere in the Old Testament and their fulfil-ment in Christ. To secure this, texts fro111 the Old Testament are quoted with different wording.' For instance, Zechariah (rx. 9) had said, "Behold, thy King cometh unto thee sitting upon an ass, and a colt the foal of an ass ". This, of course, is the poeti-cal Hebrew way of spealiing of one animal, and Luke and Mark so interpret it. Matthew, however, in his eagerness to keep close to the wording or prophecy, turns the one animal into two ! " They brought the ass, and the colt, and set Him on them." So, again, we read in Matthew 11. 23: "He dwelt in Nazareth, that it rnight be fulfilled which was spoken by the prophets, He shall be called a Nazarene," a prophecy which cannot be traced in the Old Testament. In spite of several ingenious but unconvincing attempts to find some parallel for it in Scripture, it is merely a play on words based on the accidental resemblance of the word Nazareth and the Hebrew word for "branch ". Similarly, it is only by wrenching the original words from the true original setting and intention that the passage "when Israel was a child, I loved him and called My Son out of Egypt "can he construed into a prophecy referring to the return of the Child Jesus from Egypt : " Out of Egypt have I called My Son " (Matt. 11. 15). These strained and artificial interpretations of Scripture were universal among the Jews of that day, and therefore perfectly legitimate and convincing in their day. Df. Cohu, p. 361. 3
  • 40. 34 DIVORCE AND RE-MARRIAGE When the Jews became Christians they still re-mained Jews. " Salvation was of the Jews," of that they were certain; and if the Gentiles are to be brought in, it must be as "proselytes of the Jewish Christian Church " ; ' and so it was only by Christ fulfilling the law and the prophets that in their eyes there could be any possibility of acceptance. This Matthew thoroughly realizes (cf. ch. v. 17) : "Think not that I am come to destroy the law, or the prophets : I am not come to destroy, but to fulfil. 18. For verily I say unto you, Till heaven and earth pass, one jot or one tittle shall in no wise pass from the law, till all be fulfilled. 19. Whosoever therefore shall break one of these least commandments, and shall teach men so, he shall be called the least in the kingdom of heaven : but whosoever shall do and teach them, the same shall be called great in the kingdom of heaven." To Matthow, Christ fulfilled the law, and nothing can be allowed to stand which militates against that conception. " Indeed,z so eager is Matthew to remove .Jewish prejudice against Christ in this matter of the law, that he re-writes Mark's passage on divorce, clean and unclean meats, etc., and makes them assume a different complexion. " Thus, as regards divorce, Mark and Luke represent Christ as making the marriage tie absolutely in- 'Dontrsst Matthew s. 5, 6: " These twelve Jeszcs snzt forth, and ooncmanded them, sayimg, Go not isto the way of the Garrtiles, and irrto any city of tlw Samaritans enter ye not; But go rather to the lost sheep ofthe house of Israel" with Mark vr. 10: "A?zdHesaidunto then%I,r r whatplaca soaver ye e%ter into a+%h ouse, thsre abide," eto. where no limits of place %re given to the Apostles. aCohu, p. 366.
  • 41. CRITICISM OF THE GOSPEL OF MATTHEW 35 dissoluble. Matthew, by adding words, ' except for fornication,' brings our Lord's verdict on Deuter-onomy xx~v.i nto perfect harmony with the best Jewish views of His day." To consider the words "except for fornication," giving the opinions of certain authorities :- In " The International Critical Commentary' on the Gospel According to Matthew,"' ch. v. 32, it is stated: "It is, however, open to question whether this exception is not an addition of the editor, re-presenting no doubt two influences, viz. Jewish custom and tradition, and the exigencies of ethical necessity in the early Christian Church. A similar exception is made in XIX. 9, and it will there be seen that the clause is clearly an interpolation. There is, therefore, a presumption that it has also been inter-polated here. Moreover, the teaching of Christ as recorded by Mark (x, 11) seems to preclude any such exception. And Luke represents His teaching as a simple prohibition of divorce without reservation (XVI. 18). The same may be said of Paul's account of Christ's teaching, 1 Cor. VII. 10, 11-~orei &VT;)U po~~~~OijTuhai~s .c la~lsei mplies the circumstance that after divorce the woman will be likely to marry again. In that case the divorce will have been the means of leading her to marry again; and so from Christ's standpoint, though not legally, oom-mitting adultery, because according to His teaching 1 Editors 0. R. Driver, D.D., A. Plummer, D.D., 0. A. Briggs, D.D. aBy Willoughby 0. Allen, M.A., Chaplain, Fellow, and Lecturer in Theology and Hebrew, Exeter College, Oxford. 3,
  • 42. 36 DIVORCE AND RE-MARRIAGE the divorce was ideally wrong, and the first marriage was ideally still valid-a$ El&, cf. Moulton, 42 ff. ~o~~ibercaaus~e ,sh e is ideally still the wife of the first husband. Christ's teaching here therefore seems to admit of no exceptions. If a man divorces his wife he causes her to commit adultery (it being pre-supposed that she will re-marry), because ideally her first marriage still holds good. If a man marries such a divorced woman, he not only causes her to commit adultery, but himself does so, since he marries one who ideally is still the wife of her first husband. The interpolated clause confuses the is-sues. If a man divorced his wife for ~opuela, he would not then cause her to commit adultery, because she would already be guilty of this crime." " Instead of explaining away the exception, Bleeli, Keim, and others have denied the genuineness of the clause specifying it, and this on the ground that the original unqualified statement of Jesus was felt to be a stumbling-block, and that the exception ('saving for the cause of fornication ') crept into the tradi-tional report as a concession to the realities of social life." Dr. Plummer comments %n Matthew v. thus : " The third illustration of the superiority of the Christian ideal to the Jewish is taken from the question of divorce (31, 32). As being a subject con-nected with the preceding illustration it comes not 1 Hastings' " Dictiansry of the Bible," Vol. 111, p. 215. aLs An Exegetical Commentary an the Gospol Aooording to St. Matthew," by Rev. Alfred Plummer, Dl.A., D.D., formerly Mastor of University College, Durhanl, and sometime Follow and Tutor of Trinity College, Oxford.
  • 43. CRITICISM OF THE GOSPEL OF MATTHEW 37 inappropriately here, but we may doubt whether it was part of the original Sermon. The substance of it, partly in the same words, is found again XIX. 3-9 ; but inneither place does it, according to existing texts, show that Christ's teaching about divorce was superior to that of the stricter Jewish teachers. There is grave reason for doubting whether Christ, either in the Sermon or elsewhere, ever taught that divorce is allowable when the wife has coinmitted adultery. That rropucia here nnd XIX. 9 ineans adul-tery (Hos. 1.1. 5 ; Amos VII. 17) is clear from the context. According to the earliest evidence (Mark x. 1-12), which is confirmed by Luke XVI. 18, Christ declared that Moses allowed divorce as a concession to a low condition of society. But there was an earlier marriage law, of Divine authority, according to which the marriage tie was indissoluble. To this Divine law men oughtto return. Teaching such as this is entirely in harmony with the teaching about murder (21-24) and about adultery (27, 28), and is above the level of the best Jewish teaching. But what is given here (31, 32) and in xrx. 9 is lzot above that level. The stricter Rabbis taught that the 'unseemly thing ' (ilu~~po~vp iypai mpudicum ne-gotium, Tertullian) which justified divorce (Deut. XXIV. 1) was adultery: and, according to Matthew, Christ said the same thing. Nothing short of adultery justified divorce, but adultery did justify it. It is very improbable that Christ did teach this. If we want His true teaching we must go to Mark and Luke, according to whom He declared the indissolu-bility of the marriage bond. He told His disciples
  • 44. 38 DIVORCE AND RE-MARRIAGE that the re-marriage of either partner, while the other is living, is adultery.' But it is a violent hypothesis to assume (in the face of all external evidence) that ' except on account of fornication ' is a later interpola-tion by early scribes (Wright, 'Synopsis of the Gospels in Greek,' p. 99). If the interpolation had not already been made in the Jewish Christian au-thority which Matthew used, then we must attribute the interpolation to the Evangelist himself. It is clear from other cases that he treated his authorities with freedom, and he may have felt confident that Christ, while forbidding divorce on any other ground, did not mean to forbid it in the case of adultery. Yet, even on the Evangelist's authority, we can hardly believe that our Lord, after setting aside the Mosaic enactment as an accommodation to low moral-ity, should Himself have sanctioned what it allowed. Mark would have no motive for omitting the excep-tion if Christ had made i t ; but there would be an obvious motive for a Jewish Christian to insert it, as meont, though not reported." Dr. Plummer, commenting on Matthew XIX. 3-12, writes : " . . . We must study Mark x. 2-12 if we wish for a clear and consistent account of Christ's teaching respecting divorce. . . . According to Mark and Luke Christ forbade divorce altogether. The permission to 'Augustine's view is this: "Solius fornicationis oaus& lioet uxorem adulteram dimittere, sed ill& vivente non licst alteram du-oere"; but he is not satisfied with sny solution o£ the difficult question. Yet he would uso Milrli and Luke to explain Matthew. "Quod subobscure apud Matthieurn positum est, ex~ositu~eno t spud alios, siout legitur apud Maroum et spud Lucum." Tertnllisn is very decided for this view (" Adv. Marc." 17. 34).
  • 45. CRITICISM OF THE GOSPEL OF MATTHEW 39 divorce a wife for grave misconduct was conceded by Moses because of the low condition of society in his time ; but now men ought to return to the primeval principle that marriage is indissoluble, According to Matthew, both here and in v. 31, 32, Christ agreed with the stricter Jews; an unchaste wife might be divorced, and the husband marry again. I t has been shown in the comments on v. 31, 32 that it is improb-able that Jesus taught this; and we may suspect that both 'for every cause ' (3) and 'except for fornication' (9) are insertions made either by the Evangelist or in the authority which he is using in addition to Mark. Whoever inserted the words would think that they must have been meant, and that therefore it was right to make the meaning perfectly clear. The remark of the disciples (10) confirms the view that Christ forbade divorce, even in the case of the wife'sunchastity. If that was His decision, their remark is intelligible. I t would then mean that marriage is a dangerous condition, if a man cannot free himself from an adulterous wife. But, if He taught that the divorce of an adulterous wife was allowable, then their remark would mean that mar-riage is a hard lot, if a man may not get rid of a wife whom he dislikes; and it is hardly likely that they can have meant this. After being Christ's disciples so long, they would not hold that what even Jews of the stricter School of Shammai maintained respecting the marriage tie was an intolerable obligation." In " The Human Element in the Gospels " 1 it is 'A oomlnentsry on the Synoptic Nmrativo by George Salmon, D.D., F.R.S., late Provost of Trinity College, Dublin; edited by
  • 46. 40 DIVORCE AND 1 RE-MARRIAGE stated : " Certainly our best guide to the true inter-pretation of the sayings of our Lord is the manner in which they were understood by the disciples who heard them, and by the Church which He founded, and this is our best safeguard against the numerous heresies which have had their origin in the private interpretation of isolated texts " (p. 127). Commenting on Matthew v. 31, 32, Dr. Salmon wrote : "If notice be taken of another variation be-tween Matthew's version (in ch. XIX.) and Mark's, no fair-minded critic can doubt that the limitations in Matthew were made with the express purpose of re-moving any prohibition against divorcing an adulter-ous wife. The question with which the Pharisees tempted our Lord is according to Mark's version, Is it lazoful for a naan to put awag his toij~? but according to Matthew, Is it lawful for a malL to pt~t atuag his wij% jo~or every cause P In fact, the question touches on a dispute which then went on between rival schools of expounders of the Law. . . . The question then arises, If there be a discordance, which report are we to follow? Which is more likely to ropresent the record first made of our Lord's words? A question of criticism must be decided on critical grounds with-out regard to doctrinal consequences ; and it seems to me that Mark's version, which appears to disallow divorce without any exception, is rnore likely to re-present the common source than Matthew's, which excepts the adulterous wife. For it is innch easier to account for Matthew's insertion of the words than Newport J. D. White, D.D., Professor of Riblioal Greek in the University of Dublin.
  • 47. CRITICISM OF TH'E GOSPEL OF MATTHEW 41 for Mark's omission of them, if they had been in his original " (pp. 130-1). Later on (pp. 390-1), commenting on Mark x. 2 and Matthew xrx. 3, Dr. Salmon states : " The dependence of Mattl~ewo n Mark in this passage is unmistakable. . . . Omitting the words rapenror Xdyou ~o~ueiainr Matthew v. 32 appears to forbid absolutely the putting away a wife, no matter how unfaithful; and this,in con-fessed opposition to the ordinance of Moses. . . . I am inclined to the belief that we ought to accept Mark's account here as the most literal report of what our Lord said, viz. that He uttered His precept against dissolution of marriage in the most general terms, and without allowance for possible exceptions. . . . I t seems (p. 394) now to me plain that the disciples understood our Lord to say, that it was not lawful to put away one's wife, even in the case of adultery. Surely it would be unreasonable for them to say that it was not good for a man to marry, unless he had the power of unlimited divorce." Prof. Tyson writes : 1 "Looking at the matter from every point of view, I cannot regard the twice-re-peated exception, both on account of its relation to its own context and because of its total divergence from the independent witness of the three Apostolic writers of the New Testament, to be a genuine saying of Christ, although, on the other hand, the witness of antiquity compels me to confess that it formed an integral portion of the First Gospel." '"The Teaching of Our Lard &s to the Indissolubility of Marriage," by S. L. Tyson, 1I.A. (Oaon.), Professor of New Testament Language and Interpretation in the University of the South, p. 51.
  • 48. 42 DIVORCE AND RE-MARRIAGE "The Rev. William Pattison Paterson, D.D., a minister of the Church of Scotland, and Professor of Divinity in the University of Edinburgh, entered at length into Biblical data bearing on divorce. He had come to the belief that our Lord did not allow any qualification of the indissolubility of marriage. The general tenor of our Lord's teaching was against divorce for adultery. He taught the duty of forgiving those who wronged us unto seventy times seven, and witness was therefore of opinion that He would not have said in a particular case that a man's relation to his wife ought to cease. Further, the method of Jesus, as seen in the Sermon on the Mount, was to lay down ethical principles in the most absolutc forin, and to ignore qualifying considerations. Accordingly, witness was inclined to thin11 that when Christ came to deal with the question of divorce, He said that marriage was indissoluble. . . . Again, researches into the sources and relations of the Gospels repre-sented Matthew as an inferior authority. They had three authorities for the absolute rule, as against one for the exception. But further, the general result of critical analysis was that the Gospel ac-cording to Matthew was based on two principal sources, viz. Mark, or an earlier forin of the canonical booli, and an older document usually described as the ' Logia,' which was also one of the sources of Luke. Since, now, the exception was not found in Mark, and since Luke XVI. 18, which was probably drawn from the same source as Matthew v., 31, 32, was also ignorant of it, it seemed probable that in both
  • 49. CRITICISM OB' THE GOSPEL OF MATTHEW 43 passages Matthew had modified the original tradi-tion." ' The Lord Bishop of Birmingham (Dr. Gore) said,2 in reference to our subject and the interpolation of the writer of the Gospel according to Matthew: "The only evidence that he was able to offer was concerning the view which the Christian Church as a whole, and the English Church in particular, had taken of divorce. It had been commonly held in the Christian Church that Christ forbade divorce in such sense, as admitted of re-marriage, altogether. Modern Biblical criticism confirmed the view. The earliest texts, according to the modern view were :- " 'And in the house the disciples asked Him again of this matter. And He saith unto them, Whosoever shall put away his wife, and marry another, com-mitteth adultery against her, and if she herself shall put away her husband, and marry another, she com-mitteth adultery.' "'Any one that putteth away his wife, and marrieth another, committeth adultery: and he that marrieth one that is put away from s husband committeth adultery.' "A11 the evidence pointed to this prohibition of divorce, without exception, being the original teaching of Christ, and modern critical commentators tended to regard the exception in Matthew's Gospel as a later gloss upon the original teaching, due to the 'Royal Comlnissian on Divoroe, " Daily Telegraph," 29 June, lgin~ ZEvidenoe before the Royal Commission on Divorce and Moitri-monial Causes, ils reported in "The Times" of 22 June, 1910.
  • 50. 44 DIVORCE AND RE-MARRIAGE Jewish traditions still at work in the Christian com-munity.' The Christian Church apparently took no notice of the exception and maintained the absolute indissolubility of Christian marriage." This evidence of Bishop Gore is all the more notable, because he had some time previously held and written opinions of quite an opposite character. The Lord Bishop of Ely (Dr. Chase, sometime Lady Margaret Professor and subsequently Norrisian Pro-fessor of Divinity at Cambridge)2 dealt with the Christian view of divorce, as derived from Christ's sayings. When they considered the mode in which Christ's sayings were transmitted through the memory of many men, through oral tradition, and when, further, they took into account the fact that His words, having been spoken in Aramaic, had reached them in a Greek dress, they were precluded from supposing that they had an exact or verbatim report of what Christ said. Witness entered at length into the evidence as to Christ's teaching on divorce, show-ing that according to Marli, our Lord asserted the absolute indissolubility of marriage. 'Cohu, p. 366: " WB do not always sufllciently grssp the fact that Jewish Christisns wore essentially Jaws as well as Christians. . . . In the constant feud between Judaieers and Pauliniuts; in the shoclr Peter received when he was told of God to go to the Gentile centurion (Acts x.): in the agenda of the Council of Jerusalem (Acts xv.); in the rebuke adlninisterod by Paul to Potiir at Antiach (Gal. rl.), we oloady soe that Jewish Christians still continued to regard the obligations of the hlasaio Law as binding upon thomseives." Wee evidence before the Royal Commission as reported in 'c The Daily Telogrilph," 29 June, 1910.
  • 51. CRITICISM OF THE GOSPEL OF MATTHEW 45 The late Dean Lefroy wrote : 1 "And accordingly the Christian Church has ever held that the mind of Christ is that marriage is indissoluble. Life-long monogamy is the condition supposed and enjoined by Holy Scripture. . . . So far, then, we claim that the teaching of Holy Scripture is the indissolubility of the marriage bond: the union is essential, its dura-tion is permanent." Wats~n,a~fte r careful exaiuination of texts and manuscripts, comes to the following conclusion : " I t thus appears that a fairly strong case can be rnade out to show that the original reading from which all existing readings were derived was a reading which may not contemplate re-marriage after divorce ; it is certain that some manuscripts of high authority have readings which do not contemplate any such re-mar-riage ; and it is further certain that the text is so vari-ously read as to makeit in the highest degree inexpedi-ent to base any argument of important bearing upon any of its readings. The proper course appears to be to put aside Matthew XIX. 9 and to direct the inquiry to (1) other passages of Holy Scripture, (2) the testi-mony of the Church in history, and (3) the necessary conclusions of Reason." Luckock states: " The evidence of early patristic authority is distinctly against the Authorized Version. In the Revised Version the amended reading has been recognized as suficiently authoritative to find its place in the margin. 1 Pp. 42, 43 in "The Churoh and Life of To-day," 'I Divoroe," by the late Very Rev. W. Lofroy, D.D., Dsen of Norwioh. Holy Matrimony," p. 161. '' Ths H'i~lOry of Marri&ge," p. 70.
  • 52. 46 DIVORCE AND RE-MARRIAGE "No one can deny, then, that the text is extremely uncertain, and it seems most unsafe to base any per-mission of such tremendous consequence upon such uncertainty " . . . "We submit, however, thai: the real question at issue is not so much whether or for what our Lord sanctioned divorce, but whether, if granted, it carried with it the right to re-marry or not. . . . The West-ern Church has held that the ground upon which such a right is said to rest, viz. a simple text of long-disputed integrity, is too precarious to be trusted; and to this course the Anglican branch of it has hitherto yielded a constant assent."
  • 53. CHAPTER VI. THE TEACHING OF ST. PAUL ST. PAULin his Epistle to the Romans' wrote in ch. VII. 1-4 (R.V.): "Or are ye ignorant, brethren (for I speak to men that know the law), how that the law hath dominion over a man so long time as he liveth ? For the woman that hath a husband is bound by the law to the husband while he liveth : but if the husband die, she is discharged from the law of the husband. So then if, while the husband liveth, she be joined to another man, she shall be called an adulteress: but if the husband die, she is free from the law, so that she is no adulteress, though she be joined to another man. Wherefore, my brethren, ye also were made dead to the law through the body of Christ; that ye should be joined to another, even to Him who was raised from the dead that we might bring forth fruit unto God." Some writers have held this passage to teach the indissolubility of marriage, because St. Paul does not recognize that under Jewish law divorce, which carried with it the right of marrying again, existed, and that he has in his mind the teaching of Christ. The Romans at this time considered marriage simply a 1 Date-Hsstings' "Dictionary of the Bible," A.D. 55-66 ; Dr. Plummer, A.D. 54-57. 47
  • 54. 48 DIVORCE AND RE-MARRIAGE question of contract, depending only on the will of the parties. It does not seem fair criticism to make this passage apply to the indissolubility of marriage. St. Paul is not discussing that question at all : he is dealing with the Judaizing tendencies of some Christians mentioned above. They considered the Christian still bound by the law. So it seems this passage cannot reasonably be divorced from the subject St. Paul was discussing and made to apply in detail to the subject now under consideration. Upon the subject of marriage we get St. Paul's teaching in 1 Corinthians ' ~II1.0 , 11 (B.V.) : " But unto the married I give charge, yeanot I, but the Lord, that the wife depart not from her husband (but and if she depart, let her remain unmarried, or else be recon-ciled to her husband) : and that the husband leave not his wife : " " Toir 62 ye"jalL~6uW~uC L~U~O~CKQ XX~, &AX& 6 K~~LyuOuaFin,a &v;lA u6phr pi ~opruO~va~-;&u 62 K~L~O~pL~uU&&ro& ~ya,p or 6 VI,& u6pln a~aXha"/rj~m, -gal tl~6~yauu aixa A+L~U~L."-Westcotta nd Hort. The Corinthian Christians would be well acquainted with the Roman Law and its terms of divorce. They are not to take advantage of it-~o~~uO?juaeif: a separation taltes place then the wife is to remain un-married or be reconciled. The man is charged not to leave his wife. Again in verse 30 (R.V.) : "A wife is bound for so long time as her husband liveth; but if the husband be dead, (margin fallepz asleep), she is 1 Date-Hsstings' "Dictionary of the Bible," A.D. 55 ; Dr. Plurnrnsr. A.D. 52-50.
  • 55. THE TEACHING OF ST. PAUL 49 free to be married to whom she will; only in the Lord." It will be noticed that in the R.V. and in Westcott and Hort's Greek Testament " by the law " (u&o) is omitted in verse 39, although it appears in the Authorized Version. It is not found in the best manuscripts. So then St. Paul's instructions to the converts-Jews as well as Gentiles-is that Christian marriage is soluble only by death. Also he advised if a second marriage, which in his personal judgment is a matter for deprecation, is to take place, it is to be olzlyin, the Lord and not with unbelievers. This would be a very real restriction, as there were in the early Church more female converts than male, and so the difficulty of securing husbands was felt. But St. Paul is concerned with the spiritual life of the converts and wishes to avoid danger to it by marriage with unbelievers.% This concludes the teaching concerning our subject to be found in the New Testament. It is clear that according to St,. Marlr, St. Luke, and St. Paul, Chris-tian marriage is indissoluble, while the " exception " in the Gospel according to Matthew cannot be regarded as the words of Christ, modern Biblical criticism con-sidering it to be an interpolation by the compiler of 1 ruvh8 i8r.ioi iQiro ov ~pdvov 6 &vhp bu~iir. i2iv 81 ~orpq85d bv<p ihrv8ipa ili~lv+3 8dh.i yaliv8iivaa. P~YDYb ~~~i~.-Westcaontdt Hart. The following verse (40) throws light upon the opinion Paul had of mmriage : "But she is happier if she abide as she is, after my judgment : and I think thst I also have the Spirit, of Gad ". the doctrine concerning re-marriage of oonverts end mixed marriages, see Watson's " Boly Matrimony,"pp. 438-590. 4
  • 56. 50 DIVORCE AND RE-MARRIAGE that Gospel or even of a later date than that. So then it cannot be used to modify the teaching of Christ as given by the three other writers in the New Testa-ment, who are in agreement as to the i~ldissolubility of the marriage bond.
  • 57. CHAPTER VII. HISTORICAL EVIDENCE TILL A.D. 314. WE must now consider the evidence, outside Holy Scripture, as to what was the belief of the early Christians and the teaching of the Church. I t will be convenient to consider first the period down to the conversion of the Emperor Constantine, A.D. 314, and the consequent union of Church and State, which union of necessity would mean then, as now, that the State assumed some control over the Church. c. A.D. 75. HERMAS. The first reference to our subject by any Christian writer is found in " The Pastor of Hermas," which was "one of the most popular books, if not the most popular, in the Christian Church during the second olld third centuries. . . . The most probable date assigned to its composition is the reign of Hadrian or of Antoninus Pius."' Hermas lived at Rome, but it is now agreed that he was not the Hennas men-tioned by St. Paul in Romans XVI. 14. This book was so popular that it was placed almost on a level with Holy Writ, and it was even read as such during the first centuries in the Churches. Irenaus speaks of it 'Cf. "The Apostolic Fathers,' p. 319, in T. & T. Clarlt's "Ante- Nioene Christian Library ". 51 4 *
  • 58. 52 DIVORCE, AND RE-MARRIAGE as " Scripture " in these words : " Truly, then, the scriptures declared, which say," and here follows a quotation from the shepherd of Hermas.l Clement of Alexandria : " Divinely, therefore, the power which spake to Hermas by revelation said ".2 The opinion of Hermas IS clear from the statement on Commandment IV: "I say to him, sir, permit me to ask you a question. Say on, he said. Sir, I said, if anyone has a wife who believes in the Lord, and if the husband has found her in certain adultery, does he, living with her, commit sin ? As long as he remains in ignorance, he said, the husband does not sin. But if the husband knows the sin of his wife and if the wife does not repent, but remains in her fornication and the husband lives with her, he becomes partaker of her crime, and a participator in her adultery. What then, sir, I said, is the hus-band to do, if his wife abide in this state? Let the husband, he said, put ,her away and remain by himself. But if he put his wife away and marry another, he also commits adultery. What, sir, I said, if after the woman is put away she should re-pent, and wish to return to her husband, shall she not be taken back? Verily, he said, if the husband do not take her back, he sins, and brings a great sin upon himself; for he ought to take back the sinner who has repented. But not repeatedly. For there is but one repentance to the servants of God. There-fore, because of the possible repentance, the husband ought not to marry another. The course of action is the same for the woman and the man. Not only, ' " Adv. Her." iv. 20, 2. ' " Stramate," Blr. I, oh. xxrx.
  • 59. HISTORICAL EVIDENCE TILL A.D. 314 63 he said, is it adnltery if anyone defile his flesh but he also commits adultery who does things similar to the heathen." ' It will be noticed that separation is enjoined for linown adultery, but the marriage bond still remains unbroken, so that on repentance conjugal intercourse can be resumed. Further, that whatsoever endangers the spiritual union with God is on the same level as adultery and is a cause of separation. A.D. 139. JUSTIMNA RTYR. In his First Apology for the Christians, addressed to the Emperor Antoninus Pius, his sons, the Sen-ate, and the whole people of Rome, Justin Martyr states : "But that we should not seem to be reason-ing sophistically, we consider it right, before proceed-ing to proof, to call to mind a few precepts given by Christ Himself. And let it be your part, as powerful Icings, to seek whether we have been taught and do 'Adyo du7<. Kiipie, inI~peJiAufioi 6hiya isipw7ilaaa se. Ae'ye, $qciv, K~~LE$7,~ 1,e i yvvaiaa ZXV its aio~hviu rcupiw nai ~aii~cneupn iu porxci: TLY~, .?pa kpap~durt6 bvhp ouuCGv pr7' ah~ilr; "Axpr &yvoIar, +qoiv, o5k~pa prdvei. ihv 6i yv@6 bvhp ~jkpuiiap rIav ai~inajl~ p h peiavoilrg i) yu~il,& hA' iaafidu~7 $ woP~eIPa 67ils ~a<lY Y~$ 6 dubP pe? abiils, CVOXOY yivcvac ~il2rp ap~iara b.~ilrx u1 rcoauwvbr 7% pokxetdsa b~ijr. T I osv, mqpi, mipie, aoifivg 6 bvilp, ib hzlcrivg rq. ad8.i .iod~r+ i) yuuil; 'A~DAvc~~w, +n&, a5~hvmi d &vhp i?iau'+ ~CY~IW. ihv Fi brohdrar rhv yuva2ka ZT~~~V KGahbIr po~,yZra~.' Ebo sv, ?qrl xiip~e, rev& ~b 6aoAu. E?va ~hyvuv n.?~a pe~a~oilfri ~r,u vh xal BrAfiog hri 73" iavnjr &"*pa 5aac~piJis~0,5 rapa8r~Ofio~rax~a;l pdv, qqciv. i6v phapapcz*itq*j.ra~a bihv 6 &./np, &pap~dvez ~aplcy dhnv 2P.P~ia~ iw16 2*1rr&~a1, 6AAh Fri aapoarxBijuai vbv 7jiiapmxdra rral perauooGv~a. p5 id aohb 86. roir yap 8od~:norrr oG Bco; #c.rduoid imiv pia. A>&~ ilvp r~dvornu0 3s ah# dgcihrr yapriv 6 bvrjp. AS77 i) lipZCir iirl ~YV~a~dvl8Lp l !KtrivaIi. 05 ~~YOY, +qsiu, poix~iai lr~iv, idv .rir ~houdp aa aLmG pzdug, hh& =a1 Sr Bu 7 6 Spordprna ?TO,+ 7ois C~Y~LIIYf, io~~>a~.-F~nk",P atres Apostolici," 1867, p. 392.
  • 60. 54 DIVORCE AND RE-MARRIAGK teach these matters truly. Brief and concise words were spolien by Him, for He was not a sophist, but His word was the power of God." " Iva 62 ~4 uo+d @uBa~6p Ciy S~&U~EdVhl,y wu TLU&rUDj u rap' ah05 roc Xp~uroi8, ~8a~pLrwEul~ ~puvutJljnuaah~oi v ZX~LVr pb re7 &r08e~&w?j wukpefIa, nal 6p4repou h'urw, i~8~ uarDjv ,C?au~X~dEv'(,~ rkuac€ 1 LXqtlDj~ raFra 6~6~6L~periBala 8~8ku~opeu/. 3pa~8~2 in~ai UUUTO~OLr ap' ahoi, X~YOL y~y6uau~u0.6 y hp UO~LUT&~Tnj pxfu,&XhaG dvap~vB coc 6X6./oa~t roi, 3u."-" Apol." I . § 14. The challenge of inquiry shows that the statements were not a matter of Justin Martyr's private opinion, but of the known teaching of the Church. He continues : " Whosoever loolted on a woman to lust after her, hath already committed adultery in his heart in the sight of God. . . . He who marries a woman put away from another man, commits adultery. . . . So then both those who commit bigamy under the sanction of the law of man, are sinners in the eye of our Master, and those who look on a woman to lust after her." "'OF tlu E'p,C?hg+j YUU~LKr~p6 9 76 f)r16up.iuaL adrljv, 487 f)poI~e~rv1je nap81? rapd T$ Be$ . . . 'OF yap& &roheXuph~~~ 24' f)~Qpo(iuv 8ph~~, OLX~T~L. . . . "Our~pria l oi v6p0 &uBpwrluy G~~apla~yo ~oLpeudoP~a,p rwXol rap& T$ Ijpmipy As8aunkhy ~1~n1ai, o E rpou/3k~rouryeu~u a~lcl rp6v ri) dr~Bvp7jua(~i~ rlj~."-Ibid. In his Second Apology Justin Martyr gives the case of a woman, who, leaving her former evil life, became a Christian, but her husband continued his evil course. Over persuaded by her friends she continued to live with him for a time in hope of amendment : but the
  • 61. HISTORICAL EVSDENOE TILL A.D. 514 55 husband eventually departed to Alexandria and there conducted himself worse than formerly : therefore she " in order that by abiding in conjugal intercourse and by sharing his table and bed, may not become a participator of his wickedness and impiety wes separ-ated from him, having given whet is called among you, a bill of repudiation".' c. A.D. 177. ATHENAGORAS. Athenagoras was an Athenian philosopher, who became a convert to Christianity, and one of the ablest Christian apologists. In his Plea (.rrpeu,&la or Legatio), which is addressed "to the Emperors, Marcus Aurelius Antoninus and Lucius Aurelius Com-modus, conquerors of Armenia and Sarmatia, and more than all philosophers," he wrote : "For our business consists not in the study of words, but in the practice and teaching of deeds-that a person remain as he was born or (contented) in one mar-riage, for a second is only specious adultery. For whosoever shall put away his wife and shall marry another, commits adultery ''.Z Athenagoras is one of the three writers (Origen and Clement of Alexandria being the other two) of the first three centuries who refer to the disputed passage in the Gospel ac-cording to Matthew: the reference is not by name '#nor 'OLYWY~Y7 ;" CL~LII~K~T~Wn.Y1 b<r6qpdi~y~h q7at, E(&~~~c7a 6"' T< <mCuyie, aal d~o6iairorx ai ~~KOITYOLY~O ~~YVT,& A~Ydpe~e~, sap' tp?v prriod8iov GoCaa i~wpI~t?q.A-~p~ol . " 2, a. 2. $0; y=p pchirg hdywv, bhh' i~16ei(rr xal 8i8armahlq ipywv d +phrp~.ij oldr ~rir7 &~8qp,d vsv, 8 ?.P1 ivl ydp9. '0 ydp 6867ep09 clsprlrljr 81171 po~~ci=".0 s yhp 8" &~oh6qm,n d, .rhv yuva7~aa ka;, KG! Lthhqv, ~OLX~~LLI.L-"e g~itiop ro Ohristianis," 5 33,
  • 62. 56 DIVORCE AND RE-I'IARRIAGE -for the earliest references to the Gospels do not give the name-but it will be noticed that Athena-goras does not employ the exception: on the con-trary he uses the passage against the repetition of marriage. To the indissolubility of Christian marriage the testimony of Athenagoras is absolute and is endorsed by the Church, but the teaching in reference to second marriages was repudiated. Saving the three books written to his friend Auto-lycus, who in conversation with Theophilus had probably disparaged Christianity, no other writings of Theophilus have come down to us : but Eusebius and Jerome speak of other works of Theophilus against the prevailing heresies. To Autolycus he wrote: "And the voice of the Gospel teaches still more urgently concerning chastity, saying, every-one, who looks upon a strange wornan to long after her, hath already committed adultery with her in his heart. And he who marries, it says, her that is put away from her husband, committeth adultery: and who-soever puts away his wife, saving for the cause of fornication, canseth her to commit adultery ".' Theophilus is true to Christian teaching as regards separation. 1'E 6i E8ayy~Aio.s movh irri~a~i~&~GtcFd~oonun w epi byvelar Aiyovoa. nb d isliv yvvai~ab hho~plavs pbs vb ist8upijsa~a hhv ~poi,y~~btu abrhv ivT $ ~apsaiL~ro i. mi d yagv, q701v, ~~OA~AU~~dvsVpo~r V pocXe6a~. nai 8s Baoh6rr yuvaixa sapcit~br Adyou ~opvciar, no'ci a$~hv palxcuRijva~.-'8 Ad Autolgoum," lib. iii. o. 13.
  • 63. HISTORICAL EVIDENCE TILL A.D. 314 57 c. A.D. 192. ST. CLEMENT OF ALEXANDRIA. Clement was the famous head of the Catechetical school at Alexandria, and was a man of very great learning and extensive travel. He wrote: "But that the Scripture counsels marriage, nor at any time allows separation from that union, the law straightly enjoins, ' Thou shalt not put away thy wife, except for the cause of fornication,' and it considers as forni-cation the marriage of those separated while the other still lives ".' St. Clement is evidently quoting from memory, and it is ~lmoscte rtain that he refers to Matthew XIX. 9. He is the second of three writers during the first three centuries to do so. c. A.D. 193-220. TBRTULLIAN. The witness of Tertullian is not certain, so much so that it has been claimed to prove that marriage after divorce is permissible, and also that marriage is indissoluble. Tertullian is to be treated as a witness to historic facts, rather than an authority, and particu-larly after his secession to Montanism. In his treatise "Ad Uxorem," written between A.D. 197 and 199 and before he became a Montanist, he wrote : "Now let our attention be turned to the next best councils in respect to human infirmity, the exam-ples of certain women urging us thereto, who through divorce, or by thc death of the husband, when an opportunity of continence was offered, ilot only threw '"Ori Fi yapriv il rpc@~'lruPSouAa6er0 36s A@imarB~11T Y~CTB S ruCuY1as ir<.rpdsr2,K YIIKPYS OAR AroAl<eis ~uYG?T~A+~Y, t ip+ id adYy aapvsiar. yorxeiavFifyci~ai ~b 2myGp.i CGijy~o~Biiii~~~~i)v~(ex~p~rp&~v. -" Stromsta," lib. ii. osp. 29.
  • 64. 58 DIVORCE AND RE-MARRIAGE away the opportunity of so great a benefit, but not even in marrying again chose to remember the rule that above all they should marry in the Lord,."' Also in the second chapter: "I will reply, if the Spirit give (me power), alleging that before all things the Lord considers it more approved for marriage not to be contracted than to be at all dissolved ; in fine, he prohibits divorce, except for the cause of fornication, but he commends continence ".' Again, Tertullian wrote in his work "against Marcion " : "For he is an adulterer who marries a woman unlawfully put away as much as if he married one who is undivorced. For the marriage, which is not rightly dissolved, stands. To marry while matri-mony exists, is adultery." Also, " and so divorce, when justly deserved, has even Christ as a defender ".4 Also, "But even Christ, when He commanded a wife not to depart from her husband, or she hasdeparted, ' "Nunc ad seounda. conailia. oonvertamur, respect" human= in-firmitotis, quarumdam enemplis admoventibus qua divortia "el mariti excess", ablbta continentia oocesiono, nan mado abjecerunt opportunitatem tnnti boni, sed ne in nubsndo quidem rursum dis-ciplinae meininisse voluerunt, ut in Donimo potissimum muberent." -<'Ad Uxorem," lib. ii. cap. I. a "Rsspondebo: si spiritus dsderit, ante omnia, allegans Domi-num magis riltum haberr matrimonium non oontrahi, quam omnino disjungi: denique divortium prohibet, nisi stupri oaussa, contin-entiam vsro commendat."-Bk. 11, c. 11. " Illioita snim dimisearn pro indimissa. duoens, adulter est. Manet enim metrimonium quod non rite diremptum est. Manente matrimonio nubere, adulterium est."-" Adversus Marcionem," lib. iv. cap. 34. * "Habot ilaque ct Christum assertorem justitia divortii."- Ibid.
  • 65. HISTORICAL EVIDENCE TILL A.D. 314 59 to remain tcninarried or to be reconciled to her husband, both permitted divorce which He did not entirely prohibit, and ratified marriage, because in the first place He forbade separation, and if by chance separa-tion had taken place, He wish it to be renewed.' It has been sought to discredit this later testimony on the ground that the work against Marcion, as we have it, was revised by Tertullian-and undoubtedly it bears distinct marks of revision-after he had adopted Mon-tanist opinions: and then holding that all second marriages were unlawful, he was of necessity obliged to revise his former opinions. But " whateverperverting effects Tertullian's seces-sion to the sect of Montanus may have had on his judgment in his latest writings, it did not vitiate the work against Marcion. With a few trivial exceptions, this treatise may be read by the strictest Catholic without any feelings of annoyance." a This discrediting can only be done at the expense of the consistency of Tertullian. Further as Xeble points out "hat, "if the orthodox enemies of Tertul-lian the unorthodox and heretical, had allowed mar-riage after divorce, it is almost inconceivable, that being the man he was, that he would not have held his opponents up to scorn and contempt ". '"A tquin ot Ohristus, cum preoipit ?,~ulierema vim nolzdiscede~.e cut si discessevit, mancre innuptam, aut reconcilimi l'iiro, et re-pudium permisit quo6 non in totum prohibuit, et matrirnoniurn oonfirmavit, quod primo vetuit dispingi, et si forte disjunotuln voluit reformeri."-Lib. v. o. 7. 8 Dr. Holmes' "TertulliadAgainst M&roion," in T. & T. Clarke's Librwy, etc., pp. 16 spq. Seqnel to the Argument," p. 13.
  • 66. 60 DIVORCE AND RE-MARRIAGE But Dr. Pusey in his celebrated "Note 0 " 1 on "The Second Book to His Wife," wrote : " Tertullian here, no less explicitly because incidentally, allows of marriage after divorce. Only, here, from the context, it appears that it is marriage of a woman who has divorced her husband, not been divorced by him. The same is implied in the ' Adv. Marc.' IT. 34 : ' The marriage abideth which is not duly severed. To marry, while a marriage abideth, is adultery. Thus, if He conditionally prohibited to put away a wife, He did not wholly prohibit it ; and what He did not wholly prohibit, He permitted in other cases, in which the cause for which He prohibited it no longer exists,' i.e. marriage was not to bc severed by man, he was not to 'put away his wife, for the sake of marrying another' (ibid.) ; but if the marriage was severed by God, through death, or ips0 facto broken through adultery, so that they ceased to be one, in either case alike it ceased. A new marriage was adultery only while the former endured ; and it en-dured until it was duly severed; but since adultery of the divorced was such a severance, a new marriage, according to Tertullian's argument ceased to be adul-tery. It is remarkable that Pamelius and others ex-plain away this testimony of Tertullian, being opposed tothe Roman practice, by reference to the treatise 'De Monog.' c. 9, 10, written against the Church, and, because he there does not allow of the marriage of the divorcing party, infer that neither does he here; forgetting, that he there rejects stl~ouC7 u~arriages altogether, even of the widowed, which he here ' "Oxford Library of the Fathers," " Tertullian," Vol. I, p. 431.
  • 67. HISTORICAL EVIDENCE TILL A.D. 314 61. admits." It ought to be added most reluctantly and regretfully admits. c. A.D. 185-254. ORIREN. Origen was head of the Catechetical School at Alex-andria, having been appointed, while still a layman, by Bishop Demetrius. .Origen's teaching on our subject is to be found in his commentary on Matthew's Gospel, ch. XIX. Therein he deals with the questions raised by those who put the question to Christ, Who replied "what God hath joined together let not man put asunder". He deals allegorically-a mode of thought which had the greatest fascination for him-with Christ's connexion with the Law and the Church. He is not quite sure of himself, and so it would be more than unfair to press the details of this allegory to prove a, point: any more than it would be right to press every detail in the parables of Christ? Origen is troubled about the conduct of certain leaders of the Church, who have suffered a divorced woman to marry again. Nothing is known as to who she was : or whether she was the repudiator or repudiated: or whether the divorce was for the cause stated in Matthew's Gospel, or whether it was for one of the many reasons sanctioned by the Roman Law. Most commentators consider it was a lawful divorce.2 1 rl xal d8oEapcv 81B08ur&pwv~,xarGai apiu$@Rair ir~obr~6raurapoy pL~~v.-Cammentary on Matthew xrx. a Of. Posoy's" Note 0," supra; Bmghem, xxrr. ch. 11,s 12, p. 300 ; but Watkins in his " Holy hlstrimouy,"pp. 213,214, mskes the follow-ing suggestion: "Itis possible, however, and indeed, as regards
  • 68. 62 DIVORCE AND RE-MARRIAGE At any rate to Origen the Mosaic concession was a condescension to hardness of heart and human weak-ness (6~b ~;lv &u8euerav), so the ,marriage of the woman in the lifetime of her husband was acting "contrary to Scripture and contrary to that com-manded and written from the beginning ".I Origen is the third of the three writers who during the first three centuries quotes Matthew XIX. 9 ; "and shall marry again " is not quoted by him, and he draws no help from the text concerning the ques-tion of re-marriage. c. 200-258. ST. CYPRIAN, BISHOP OF CARTHAGE. St. Cyprian wrote to his son, Quirinns, three books, called " Testimones," against the Jews, containing " those Divine teachings wherewith the Lord has condescended to teach and instruct us by the Holy Scriptures". He states that "a wife ought not to depart from her husband, or if she should depart, to remain unmarried ". In the first Epistle of Paul to the Corinthians : that age, exceeding probable, that the divorced wives spokan of were the whes of non-Christian husbands, who had put them away. If this was done bofaro or at the baptism of the wives, the divorce would be regarded by the Church tls sffarding no bar to re-marriage. . . . The marriage, so sovercd, oould never have been Ohristisn m&rri&ge at all." "H67j 6e 7zapb yrypczPp(va xu> liver .iiu ~youpdvwv icr 'EKKAVC~G~ ishpcjrdv .r,va, Dvvr <Gv,or 7.0; duXpbr, yape:raa, yuva:,ta, ,,ap& 7b YeYPawivovpiunoio6urer iv $ AiAcna~. "ruvil 6i iq' 8sov ~pdvov Cp d dvhp ah$r," nal 70. '("Apa 08" po'xahl~~ pnpa~icriir y ilvil ycvopiuq 6~6i~7i1pw (srjv70rT OG bv6pbr," 03 pilv dhdywr. cixbr ybp 71" cup nep2qnpbv ~od~qovuy rrpbri ~ci~dvwinvip racrerri rapb 18 dr' cip~jr vrvopoa.7Vfi:va ~aylry pawCva.-Commentary on Matthew xrx.
  • 69. HISTORICAL EVIDENCE TILL A.D. 314 63 "But to them that are unmarried I command, yet not I, but the Lord, that the wife be not separated from her husband: but if she should depart, to re-main unmarried or be reconciled to her husband; and the husband not to put away his wife".' THE APOBTOLICACLA NONS. The date of these canons is uncertain. The whole question is carefully argued by Dr. Hefele,= who states : " Drey . . . supposes that a great number of the Apostolic canons were taken from those of the Council of Antioch, held in 341, and Bickell agrees with him on this point. It cannot be denied that Drey's opinion has much to be said for it: it does not, however, appear to us quite unassailable; and perhaps it may still be possible to prove that the canons of this Council of Antioch were rather taken from the Apostolic canons. I t may also be the same with the Synod of Nicaa, which, in its first, second, fifth, and fifteenth canons, alludes to ancient canons in use in the Church. Perhaps the Council placed the canons referred to among the Apostolic canons which may have circulated in the Church before being inserted in our present collection." "The Synod in Trullo being, as is well known, 1" Uxorem a viro non rsocdare, aut si racesserit, innuptam m&nere." In Epistola Psuli sd Corinthios prima,: "Iis autam quie nupse-runt prinoipio non ago, sed Dominua, uvorsm a uho non sepe.r%ri; si autsm reoesserit, manere innuptm, aut raoonoilisri viro, et virum uxarem non dimittere."-"Tsstimonia sdversus Judieos," Ilb. iii. o. 90. 2Cf. "History of Church Counoils to A.D. 325" (T. & T. Clark), pp. 451-7.
  • 70. 64 DIVORCE AND RE-MARRIAGE regarded as oecumenical by the Greek Church, the authenticity of the eighty-five canons was decided in the East for all future time." CANON4 8 (47) "If any layman, putting away his wife, take another or one put away by another man, let him be excom-municated." ' In Smith's "Dictionary of Antiquities " appears the following statement : "This canon is commonly understood to refer only to men who had illegally put away their wives, or to women who had illegally separated from their husbands " (see Balsamon's ex-position, "In Canon. Apostol.," p. 258, Paris, 1620). But no leading cauonist supports him, and it is not to be expected that an Eastern Bishop, some nine hundred years afterwards, and faced with the laxity of his own Church and practice, would support the strict view. c. A.D. 305 OR 306. COUNCILO P ELVIRA. Hefele, after carefully examining the e~idence,~ comes to the conclusion that the date of this Council was in the autumn of A.D. 305, or in 306. He states : " The synodical acts, whose genuineness could only be doubted by hypercriticism, meution nineteen bishops, among whom was that ' Abrahamic old man' (Athanasius) Hosius of Cordova as being 'Ei7cs Amkhs T~(Y~V TOCY UY~i~nP~dACAl~uu &&pav Adsn Y "ap' &AAOU diro~rh~~.6'+o~pvr(e,c 8w. The same ruls was given by the eighth and tanth canons of Elvirs, and by the tanth of Aries. Dreg (s. 251) reckons this canon among the most ancient. Its source is unknown.-Hefele, ibid. p. 478. ZVol. 11, p. 1112. Of. '(History of the Church Councils to A.D. 325," pp. 131-1.
  • 71. HISTORICAL EVIDENCE TILL A.D. 314 65 present at the Colmcil, which was held at Illiberis, in the south of Spain, in the province of Bcetica, now Andalusia. There were therefore bishops from the most different parts of Spain, so that we may con-sider this assembly as a Synod representing the whole of Spain. The acts slso mention twenty-four priest;, and say that they were seated at the Synod like the bishops, while the deacons and laity stood up. The decrees proceeded only from the bishops ; for the synodical acts always employed this formula : episcopi miversi dizerzcnt.'" CANON 8. "Also, women, who without any precedent cause, have left their husbands, and have joinea themselves to others, may not receive communion at the last."' From this canon it has been attempted to draw the conclusion that women incurred this extreme penalty because " nulla precedente causa " : but for no cause coulda woman leave a Christian (i.e. baptized) husband and be married to another; the penalty here is be-cause she has wantonly left him : and this is clear from CANON9. " Also, if a Christian woman who has left an adulter-ous Christian husband and marries another: if she has married, she may not receive communion unless he, wbom she has left, has departed this life, unless mortal siclrness compel to administer." 1 Of. "History of the Churoh Councils to A.D. 325," p. 132. 3" Item fcomina, quw nnlla. precodente causa, reliquierint viros sum, ot se copulaverint slteris, nec in tine aocipiant cammunionem!' 3"Item fcemina fidelis, qua sdulterum msritum reliquerit tide-lem, ot nlterum ducit, prohibeatur ne ducat; si duxerit, non prius 5
  • 72. 66 DNOROE AND RE-MARRIAGE In this canon there is found no sanction of the marriage, only a mitigation of the greatest penalty of the Church: the marriage with another man, after the divorce of an adulterous Christian husband, cannot be recognized, so long as the husband is alive, because the bond of marriage still continues; and the erring wife, although provoked to wrong-doing by the adultery of her husband, can only re-ceive communion if she is " in extremis " and on the verge of departing this life, the sin then, it is under-stood, being repented of and repudiated by the sick woman. Canons 10 and I1 cannot be rightly applied to Christian marriage (as is done in Smith's "Diction-ary of Antiquities "') as Dr. Hefele has carefully ex- ~lained.~T he failure to make this distinction has been a frequent source of confusion by transferring regulations concerning other marriages and referring them to proper Christian marriages. If the evidence, which has now been given, is care-fully weighed, the overwhelming conclusion must be that, according to the teaching of Christ, as inter-preted by the Church of the first three centuries, Christian marriage is indissoluble. No use is made of the exception in the Gospel according to Matthew, as modifying this teaching, when it would have been "the line of least resistance," since in some measure it would have been in harmony with the civil mar-aooipiat oommunionsm, nisi quem reiiquerit, prius do saoula exierit; nisi forte necessitas infinnitatis dare oampularit." 1 V0l. 11, p. 1112. a 8i Church Councils to A.D. 325," pp. 141,142.
  • 73. HISTORICAL EVIDENCE TILL A.D. 314 67 riage codes, under which the early Christians lived and worked. Separation was allowed, and even en-joined, for adultery: rropvcla is taken to mean post-nuptial unchastity, and is thus construed to moan adultery. Repentance was to be followed by restora-tion- an impossible course, if the marriage bond had been broken and dissolved.
  • 74. CHAPTER VIII. A.D. 314-527. Fnoivf CONSTANTINTEO JUSTINIAN. THIS period was a time of great difficulty for the Church. The days of persecution for Christians passed into days of recognition by the Emperors, who, with their subjects became nominally Christian. Religion then in Rome became " fashionable " and so "not strict ". The effect of the conversion of the Emperor Con-stantine has been variously estimated, but in no way can s better estimate be formed than by considering his celebrated edict in A.D. 321, to Helpidius in refer-ence to the Lord's Day, which is called " dies solis ". It is necessary to remember that, although at thc time of the decree, Constantine was on the threshold of the Church, he remained there Inany years and was not baptized until the hour of his death. His attitude (and that of subsequent Emperors) can be better ap-preciated, if it is remembered that the above-mentioned edict was also accompanied by one providing for the regular consulting of the auspices : and this attitude is a typical attitude. So, while the State became nominally Christian and people pressed into the Church from various and 68
  • 75. FROM CONSTANTINE TO JUSTINIAN 69 varying motives, it would be a mistake to under-estimate this " lowering tendency," which was a dis-tinct force against the teaching of the Church, in reference to the indissolubility of Christian marriage. The Church continued to teach, but the laxity of practice, sanctioned by the Civil Law, also continued. During this period mutual consent was all that was as a rule necessary ander the Civil Law for a divorce with power of re-marriage ; and a study of the laws of Constantine, Honorius, Theodosius, and Valentinian will show how far they were from the Christian standard : yet there was a somewhat upward tendency in those laws which is witnessed to by the "Lex Julia et Papia Poppzea ".' The effect of the influence of the State was felt with the greatest force in the Eastern Church, which was overshadowed by the residence of the Imperial Court at Constantinople, after its removal from Rome. Free from the corrupting influence of nominal Christians in high places, the Western Church re-mained true to the teaching of the first three centuries of Christianity, but the Eastern Church started on that divergence which has separated her so widely from the West. Milman wrote: "The removal of the seat of the Empire to Constantinople consummated the separa-tion of Greek and Latin Christianity; one took the dominion of the East, the other of the West, Greek Christianity has now another centre in the new capital, and the new capital has entered into those close relations with the great cities of the East, which 'See Howsrd, Yol. 11, pp. 26-33.
  • 76. 70 DIVOROE AND RE-MARRIAGE had before belonged exclusively to Rome. Alexandria hss become the granary of Constantinople; her Christianity and her commerce, instead of floating along the Mediterranean to Italy, pours up the Bgean to the city on the Bosphorus. The Syrian capitals, Antioch, Jernsalem, the cities of Asia Minor and Bithynia, Ephesus, Nicsea, Nicomedia, own another mistress. The tide of Greek trade has ebbed away from the West and found a nearer mart ; political and religious ambition and adventure crowd to the new Eastern Court. That Court becomes the chosen scene of Christian controversy ; the Emperor is the proselyte to gain whom contending parties employ argument, influence, intrigue. "That which was begun by the foundation of Con-stantinople was completed by the partition of the Empire between the two sons of Constantine. There are now two Roman worlds, a Greek and a Latin. In one respect, Rome lost in dignity: she was no longer the sole metropolis of the Empire; the East no longer treated her with the deference of a subject. On the other hand, she was the uncontested, unrivalled head in her own hemisphere: she had no rival in those provinces, which yet held her allegiance, either as to civil or religious supremacy. The separation of the Empire was not more complete between the sons of Constantine or Theodosius, than between Greek and Latin Christianity. "In Rome itself Latin Christianity had long been in the ascendant. Greek had slowly and imperceptibly withdrawn from her services, her scriptures, her con-troversial writings, the spirit of. Christianity. . . .
  • 77. FROM CONSTANTINE TO JUSTINIAN 71 Rome, therefore, might gather up her strength in quiet, before she committed herself in strife with any of her formidable adversaries, and these adversaries were still weakening each other in the turmoils of unending controversy, so as to leave the almost un-divided unity of the West an object of admiration and envy to the rest of Christendom,"' As regards divorce and re-marriage "it appears that during the two centuries between Constantine and Justinian the legislation of the State relative to the vital question of divorce is practically untouched by the influence of Christianity. In formal divorce bona gratia and divorce by mutual consent, both con-trary to Christian teaching, axe freely allowed. The principle of further marriage after separation is fully maintained for the innocent party, and usually under restrictions for the guilty person as well. The causes of legal divorce are, indeed, limited, and the penalties for unjust repudiation made more severe; but the strict principle of indissolubility of the marriage bond . . . is completely ignored." " A.D. 314. COUNCTOLF ARLES. This Council was the first Christian Council sum-moned by the Emperors, and this was called by Con-stantine and opened on 1 August, A.D. 314. Its primary object was to re-try the case of the Donatists against Cecilian, Bishop of Carthage, but marriage questions were also dealt with. The number of persons taking part is variously '"History of Lstin Christianity;, Vol. I, pp. 74-6. 2Howard's "M&tri~noniltIln sl,itutions," Val. 11, p. 31.
  • 78. 72 DIVORCE AND RE-MARRIAGE given, even up to 600. A great part of Western Christendom was represented, bishops, together with priest and deacons, coming from Gaul, Italy, Sicily, and Africa, and also from Britain. It is of interest to Anglican Churchmen, as indicative of the teaching of their branch of the Church, that the decrees of this Council were signed by the following bishops, viz. Eborius of York, Adelfius of Carleon, and Restitutus of London. This Council decreed: Canon 10.-That he whose wife has cofnmitted adultery may not talce aftothev while she is alive. "Concerning those, who detect their wives in adultery and the same are Christian young men and are forbidden to marry, it was resolved that, as much as possible, counsel be given them, that they do not take others, so long as their wives although adulterous are living." 1 This canon has been subjected to a different inter-pretation by a few, but the almost general oonsensus of opinion has been that it absolutely prohibited re-marriage. Howard slates : " The youthful husband, who puts away a guilty wife, is to be 'advised' not to marry again during her lifetime; thus dealing far more leniently with theman than did the Council of Elvira with the woman for the same ~ffence".~ 1 Canon lo.-" Ut is cujus WEOT adz'ltbl-wit aiiast illa vive~rte 3i.m accipiat. Us his conjuges suss in adulterio deprehendunt, et iidem sunt sidoiesoentes fidelas et prohibentur nubere, piaouit ut in qnan-turn possit oonsilium iis detur, ne viventibus uxoribus suis lioet sdultaris alias s*ooipiant."-Hefele, p. 189. 2.I Matrimonial Institutions," Val. 11, p. 20. The following note is then added : "This disparity isvariously explained. F~iesem,a p.
  • 79. FROM OONSTANTINE TO JUSTINIAN 73 Dr. Pusey wrote: "The first Council of Arles (A.D. 312) advises against re-marriage in such cases, does not forbid it ".' Smith's "Dictionary of Anti-quities " agrees2 Yet the position seems to have been as follows: these husbands would seek divorce, because of the adultery of their wives, at the hands of the Civil Law, which would regulate the control of offspring and property, and would then by the Civil Law be at liberty to marry. But by the Christian religion, and these husbands were fideles, i.e. baptized Christians, they are forbidden to re-marry (et prohibentur uubere). The Council urges that since the young men are forbidden to re-marry that instruction be given them, as far as possible (ut in, quantum possit co~zsilimi is detur), that they obey the rule of the Church: in other words, that their instructors are to he diligent in the performance of their duty to rightly instruct. Dr. Hefele states : "In reference to the 9th canon of Elvira, the Synod of Arles has in view simply the case of a man putting away his adulterous wife; whilst on the contrary, the Council of Elvira refers cit. 771, sees hero the influence of the Roman Law (0. 1, Cod. ad ley. Ju1. [ix. 9]), which he s*llages judges the man more leniently than the woman; but. Ceffeciien, op. oit. 22,23, explains it more reason-ably as the result of a. difference of local practice, since such a discdmination between maon and woman 'the Ohuroh had thus far zealously opposed'; and besides, ha insists that the passage from the code is not in point. I t should be remembered, also, that same of the early Fathers, as we have seen, followed theilliberal prinoipies of the Mosaic L&w discriminating against the woman; this prejudice may hwe prevkled at the Oounoil of Arles." 1 Note 0" on Tertullian, p. 432. 2 Df. Vol. I, p. 142 and Vol. 11, p. 1112.
  • 80. 74 DIVORCE AND RE-MARRIAGE to the case of a woman leaving her adulterous husband. In both cases the two Councils alike depart from the existing Civil Law, by refusing to the innocent party the right of marrying again. But there is the noteworthy differenoe, that the right of re-marrying is forbidden to the woman, under penalty of permanent excommunication (Can. 9); while the man is strongly advised (ie gua~ztumpossit con-siliuwz iis detur) not to marry again. Even in this case marriage is not allowed, as is shown by the expression et prohibentur nubere. This Synod will not allow that which is f'oiorbidden, but only abstains from imposing ecclesiastical penance. Why is it more considerate to the man ? Undoubtedly because the existing Civil Law gave greater liberty to the husband than to the wife, and did not regard the connexion of a married man with an unmarried woman as adultery." ' Petavius tries to meet the difficulty by making the canon read " et non prohibentur nubere," upon which Bingham notes, " Petavius reads this canon differently from a11 the printed editions "." c. A.D. 315. COUNCIL os NEO-CBSAREA. The date of this Council, which was held at Neo- Casarea in Cappadocia, is usually given as A.D. 315, but Hefele places it between A.D. 314 and 325. It decreed, Canon 8 : " If the wife of a layman has committed adultery and is openly convicted, such a layman cannot come to the service of the Church. But if she has committed adultery after the ordina-l" Church Oounoils to n.o. 325," pp. 189, 190. 9" Antiq. " XXII. O. ii. 5 12.
  • 81. FROM CONSTANTINE TO JUSTINIAN 75 tion (of her husband), he is bound to put her away. But if he lives with her, he cannot have the service which has been entrusted to him." 1 This is follow-ing the "Pastor " of Hermas : there must be no sns-picion about the life of one who is ordained and in active ministry, and so the adulterous wife must be put away. c. A.D. 250-325. LACTANTIUS. [Lactantins was born about the middle of the third century, it is supposed, since he was "far advanced in life in A.D. 315." Some hold that by birth and education he was an African: others that he was born at Firminm in Italy. He attained great re-putation as a teacher of rhetoric, his master being Arnobius, so that the Emperor Diocletian invited him to come to Nicomedia and teach there. " He appears, however, to have met with so little success in that city as to have been reduced to extreme indigence. Abandoning his profession as a pleader, he devoted himself to literary composition. It was probably at this period that he embraced the Christian faith, and we may perhaps be justified in supposing some con-nexion between his poverty and his change of religi~n."~H e became tutor to the Emperor Con-stantine's son Crispus. He died probably at Treves m A.D. 325.1 Lactantius wrote : "But as a woman is bound by 1 rwr) rivar por~rv@cioAaa i~oGZ v~or,i dv iAryxB$ @avcpGr, b roeoGror sir 6r~pqoioviA Beiv oi 61va~ai. 'Ei 6ia al pcd~ ijxvc ipa~aulavp ozxsvBf, JgelAc~d roAjsai ad~r)v. 'Edv 66 cu@, od 8hva~a6.* xecBa'~?iri yxa2praOei. onr ahy, 6sqpec2dr. Dr. Pletcher on Lactantius (T. &; T. Cl~rlr's Library), pp. ix, x.
  • 82. 76 DIVORCE AND RE-MARRIAGE the bonds of chastity to desire no other, so let the man be held by the same law, since God bound fast the husband and wife in the frame of one body. Therefore (Christ) commanded that a wife be not dismissed, unless convicted of adultery, so that the bond of the marriage covenant may never be undone, unless u~lfaithfulnessh as broken it." 1 Also, "he is an adulterer who has married one put away by her husband; so also is he who has put away his wife, except for the crime of adultery, that he may marry another ; for God is unwilling for the body to he dismembered and torn asunder." Lac-tantins is the first Christian writer who definitely states that adultery breaks the marriage bond and so gives the right of re-marriage. Various reasons have been given for this breaking away from the teaching of the Church. Bishop Bull states : " That writer was almost ignorant of Christian discipline and better versed in rhetoric than theology. Certainly was never numbered among the doctors of the Church." I" Ssd siout fcemina. osstitotis vinoulis abligata est, ne alium ooncupisoat, its vir eadem lege tenoatur quoniarn Dous virum et uxorcm unius oorparis campage solidsvit. Ideo priecepit, non dimitti uaorom, nisi crilnine sdulterii reliotsm ut nunquam con-jugi~ lis fcedoris vinculum, nisi quad perfidis. ruperit, reso1vatur."- "Epitome," 0. LXVI. z" Adulterum esse, qui 8 msrito dimissam duxerit, et eum qui prmtcr orimon ildulterii uxarem dimiserit ut nlternm ducat. Dis-sooiari enim corpus et distrshi Deus no1uit."-" Adversus Gentes," iib. vi. cap. 23. "‘Erst soriptor ills pena rudis disoiplinie Christianae et in Rhotorioa melius guam in Theologis. versatiis. Certe uunquam inter dootores eoolesiie nuineratus init."-" Def. Bid. Nio." ii. 14, 4.
  • 83. FROM CONSTANTINE TO JUSTINIAN 77 Others have thought the influence of Constantine, whose views can be gathered from his Edict, A.D. 331, may have been the cause which made his courtier, who was tutor to his son, approximate, as much as possible, to the ideas of his patron. If Dr. Fletcher is right, that poverty was an in-ducing reason which drove Lactantius to embrace Christianity, then certainly the obligations of a courtier may also have weighed greatly with him. But it must be admitted that his writings and their honesty point away from that conclusion. If, as seems probable, Lactantius is quoting Matthew v., the real reason may be that the text he used contained the exception ". A.D. 360. ST. BASIL. St. Basil, who was born of Christian parents in A.D. 329 at Caesarea, the capital of Cappadocia, seems to have felt the full force of the union of Church and State and the lowering tendency of the Christian standard of marriage which ensued in the East. About A.D. 360 St. Basil wrote "that the husband ought not to be separated from his wife, or the wife from the husband, unless one be taken in adultery or hindered in piety "? So it will be seen that St. Basil allowed separation to the wife as well as to the husband on the ground of adultery or hindrance to spiritual life. In Cap. 11. St. Basil wrote : "It isnot lawful for him, who puts away his wife, to marry another, nor for '"07' oh 8~i~Y FPO!b rb ~YY~LK4 ~yP~ ~abivb~ bavSp br xwplCeoBn1, ei 4 nr bu r'al aopvdq ;A@ i) air 7+v B~osdperav nwAhia1.- " Moralia Reg." 73, o. 1.
  • 84. 78 DIVORCE AND RE-MARRIAGE her who is put away from her husband to be married to another ".' In connexion with this decision against re-marriage after divorce, it is important to notice that St. Basil makes his statement after he has cited Matthew XIX. 9. ~ayla lLljuy)B XX~Y). About AD. 364 St. Basil, when a presbyter it is thought, wrote " Hexameron," in which he urges the wife on no plea to consent to tear asunder the mar-riage union.z In A.D. 374 St. Basil wrote letters, commonly called " The Canons of St. Basil," to Amphilochius, Bishop of Iconium. In Letter 188 (Canon 9), he is in a difficulty as to the custom, prevalent even in the Church, which treats the wife with greater strict-ness and allows no place for repentance, while " the custom enjoins that husbands, even when committing adulteries and living in fornication, be retained by their wives ".3 He proceeds : "If it be because he is living in fornication, we have not this rule in our ecclesiastical custom of the wife divorcing her hus-band ".4 St. Basil feels the difficulty of this and the custom obtaining; but it was SO.^ The customary practice went still further: "If "OTLO ~<K@ LTTLVI ; d710A6cav7~T ~EYa u~oGy ~~aix'ymaf ie?~g hhnv O~T* ~h&rro ArAu+dvnv &wb b~8~oi~ri pyy,o fiaioOar. 2 $K I(~~F+T nPo#dre~~~ai a8ixecOai~ hBuY W~Y8i aoa@u.-VII. 5 5. 3% 8i nuvfiRria xal poi~edou~Bavr6 par ~al2rvo pvela~r8 v~arx a~i~co0~~ fiabyvuaaeiiv lipor~drce~. "Ei 82 6th ~b iv ropvcia abibv C$v, a$* ixopev TOGTO Zv T$ ~~vqOe731 ~ i~~~~craov~bi amfpia 7ljpqfi~~.-Ibid. 6~T~O~T1YY8 i t hdym 04 P~~LO5P .6: r~~ljormY~ TW KCK~~T~K~. '' Epist. "-109 (Can. 21).
  • 85. FROM CONSTANTINE TO JUSTINIAN 79 such a husband be left he is pardoned, and she who dwells with such a man is not condemned ".I St. Basil knows the teachingof the Church, but he is faced with the prevalent laxity of practice among Christians ; he sees nothing for it and so he hesitates -a line very much repeated in this twentieth century and likely to prove as disastrous now as it did to the Eastern Church. c. A.D. 310-404. EPIPHANIUS. Epiphanius was Bishop of Salamis in Cyprus in A.D. 402. The date of his birth is variously given from A.D. 310-320. He died in A.D. 404. His great work is the "Panarion," dealing with the prevalent heresies of his day. He wrote: "But he, who is unable to be satisfied with one wife after she is dead, separation having taken place on account of some pretext, fornication, adultery, or evil cause, if he is joined to a second wife or a wife to a second husband, the Divine word does not accuse him nor excom-municate him from the Church and from Life; but bears with him because of his infirmity : not that he may have two wives together, the first still surviving: but separated from the one if it should happen, he should be lawfully joined to the second. This man the Holy Word pities and the Holy Church of God : especially if such a man is pious as regards the other things and lives according to the law of God." "0 bi ~a~aAe~$oBu~ylyrv wodr imc, nal d lruvaixoCoa ~y7^0 ~o(i~qOL ~a.iaxpive.rar.-Oan. 9. 26 b/ I(?) b~vq9alr T$ hpnaaBijvai .icAcu.rqrdiisn 8vrxrv .r$uor wpo. qdorur sopveiar iipoi~eiar,i) aesijr akler XWPCC~OCy s~o~ivro~~~,a $Riw~*. 6eu7ipq yuvcrai, yvvh 6eurdpyi &~bpi, oLx ai?Z~ai 6 Be& Adyor, odbi
  • 86. 80 DIYORCE AND RE-MARRIAGE A.D. 370-390. ST. GREGORYN AZIANZEN. St. Gregory Nazianzen was Bishop of Constanti-nople and friend of St. Basil. His opinions, in reference to our subject, are found in a sermon preached by him, bsfore the Emperor Theodosius at Constantinople and based on Matthew XIX. In the course of this sermon he notes the difference in treatment of the wife and of the husband: the difference between the teaching of the Church and the usages and customs prevalent: "A wife plotting evil round the bed of her husband commits adultery, and sharp thence are the penalties of the law. But is a, man, committing adultery against his wife, guiltless? I do not hold this law; I praise not this custom. Husbands were the makers of the law, therefore the law is against the wives."' He is clear that only adultery, because of co~~usio prolis, can be a ground of divorce: all else must be patiently endured, "the law grants divorce for eveiy cause. But Christ not for every cause: rather He allows separation only for adultery, all other things He commanded men to endure patiently. And He &~7b51 'ERKA~~x/a~l s7 % Ca5s &~IIDR~~~T&TAFh&L ,8 'aBa<~d<e~.6 1a ~b bs@cu6r. o$x ba 810 yuvaixar iwl ~b add rxt rep~o6~~n5~7 p6s, &Ah' 6vb p6s drorxe@elr, 8ru7ip5, ei .iiixorev, vdpW ouua@Bijvag. 'EAcrilaRo~Q iiyior Adyor nai ii byia 8.0; 'E~xAnda.p dAc<ia ii ~uy- ~dveQi ~oioi~o73s. &Aha ebAaShr, xal sad ~dpovB ro; raAc~rvdpcuor. -" Panarion," LIX. o&p. 4. I~aylv vh pi" xa~GrB ouhasapiun rep1 KO~T~J6V~ 6pb9p 01~27n.2, K-I rqir @VT~~@C7Y6 78" Y&YY imi~i~~&Ya+-,~ 8 i KDT~?TO~YC~~YUYY GLX~S. &vd@uvor; Od GIxopar ~a1in7uh u vapoeiriav, od$~ra w; ~ljvou vfiO~izv. "AV~d~m~#S o i vaiioRe~o;uiar, 6r& TO;TO K~T&Y YY~IKGY j) ~op00~cia.- " Oratio," rxxvIi.
  • 87. FROM CONSTANTINE TO JUSTINIAN 81 allows adultery because it makes spurious the off-spring."' Hegoes on to urge the utmost care before divorce, "do not cut off rashly, do not separate "2 c A.D. 400. ST. ASTERIUS, BISHOP OF AMASEA. St. Asterius, in his fifth homily onMatthewx1x.gives a terrible picture of the life of certain Christians of his time, who acted according to the Civil Law: "But hear now, ye hucksters, of such marriages and who as easily assume your wives, as you put on clothes;"3 . . . "believe, that marriage is severed by death alone and by adultery ".-'. . . "I praise the hus-band who 5ys from the designing wife, who cuts asunder the bond by which he is bound to the asp or the viper." c. A.D. 381-385. ST. TIMOTHYO F ALEXANDRIA. St. Timothy was Patriarch of Alexandria A.D. 381- 385. I t is di6cult to decide what he thought in refer-ence to the subject under consideration, for his answer (15), one of the eighteen given to his clergy, is " non-committal," and perhaps designedly so, having re-gard to the practice of his day and allowed by the Civil Law :- Question 15.-"If the wife of any man become 1'0 piv vdpor R~T&ri aav akiw 7b ~?TO$T~~6OiY6~ m1.X p~r'rb6~i 05 mr7& rioav ai~iav.B AA& cuyxwp~ip ip rdvov xwpiSeoRa< &jr lidpunr, r& 61 bnna ndv~e.+ iA~oo.+~rria~h icc. Kal 7+yn dpvtjv, a?, uo9is 7b yivar . -Bid. 2~7Lhp1 r 68 rpore~&rp, ' ~wplrg~.-Ibid. 3b~aboa~6c1 ut, ai ~o6~ucdvin lnor, xal idr yuvai~ar,A s lfid~ra, th~dhwrf isi~v6udprvo~. 4neLr~7re,i iv ydpoe t~ap~dpyd. K~~p~Ior x rri 6tcr~drn~r~,.-Bid. Sinaiv&u T~Y.+v Ydv7a T~Yid @o~Aov7, 8" 61a~d$an~7ab v 6irplrbv, $ npbr .+v bodsa 3 7'" iXz6uav rpipom6Wio.-Brd. 6
  • 88. 82 DIVORCE AND RE-MARRIAGE demented, so as to habitually wear chains, and the man says that I am not able to be continent and wishes to take another wife. Ought he to take a second wife or not? " Answer.-"Adultery has a part in the matter : and concerning this I have not and find not what to answer." ' c. 347. ST. CHRYSOSTOM. St. Chrysostom allows separation for adultery: "Whoso putteth away his wife, except for the cause of fornication, maketh her to commit adultery ".% But there is no dissolution of the marriage bond or re-marriage. 3 St. Chrysostom repeatedly uses the phrase "let her remain unmarried or be reconciled to her husband ".4 Alsoif the husband will not be reconciled, "await his death, for as it is never permitted to a consecrated virgin to be married, because her bride-groom always lives and is immortal, so it is only permitted to her that is married, when her husband is dead ".5 Also, when commenting on Matthew v. 31, 32, where St. Chrysostom states of the woman "Ep&moer 'Edv iivor yvvi, avcupa~i$%, mr ol6qpa $opriv, 6 61 dvhP Adyei, 871 Oi Gdvapa~i ylrpwa4~o!3~an~1, 8dA.r AaRciv MAW b$eiAei AaReiu i7dpo.v i) 06; 'Asdnpiow. MoiXrla ircooAaPci 76 irpdyP~~~u~i~ rvi TO~TOU TL dxoxplvro0ar aia ixw, i) i$cup8mw. aTb yap, "0s dwohuog ~hyvuv aina ~6.~0r5a,p ea~brA dyou ?rapvelar, note? e375v po~x6rBaa.-'' DB Virginitate," 5 28. j'o 6i bvhp, ~b7v7 " brrdv~vv& pyaArw.i$ar %?)y uvai!ta, 07ipyeiv dvmyxm<enz~7 hv ~OYAFIK~CLYL A, lrw 0i6euiav 016i 8cd<oh~v7 al~6n4~~011 7.1 I$? 6erro7rlar rdpr<v.-Bid. 4 Mruhw yap, $qalv, tiyapor, $76 bv6pi no~aAAayiiiw.-Ibid. $40. Qrrrpy &p 7fvapRdvyr yapeio8ai od6i~ore9 rc7z 61b ~b @P oir$r drl ~bvvup $iov xaz &@dva~ov o8vw T!, yryamp6vp rdre pdvov $<WTLP, 87." 6 dvhp dao8dug.-Ibid. 5 40.
  • 89. FROM CONSTANTINE TO JUSTINIAN 83 cast out, "for when cast out she continues to be the wife of him that expelled hex ".' I t has been claimed that St. Chrysostom, from his words, "for an adulteress is the wife of no one,"= thought that adultery broke the marriage bond and therefore that re-marriage was allowed, but a careful study of the whole pasmge will show that nothing of the kind was present to the mind of St. Chrysostom, but only the real practical difficulties which ensue from adultery. c. 393. THEODORETB,I SHOPO F ANTIOCH. Theodoret admits divorce for adultery. He wrote : "He (the Creator) forbids to dissolve the marriage, but gave one only cause of dissolution, that which tears asunder the bond. For every one, he says, who puts away his wife, except for the cause of fornica-tion, causes her to commit adultery, and he who marries her who is put away, commits adultery." c. A.D. 340-397. ST. AMBROSEB, ISHOPOF MILAN. [St. Ambrose, as Bishop of Milan, "exercising the authority of a patriarch, and presiding over a city, which was frequently the residence of the Emperor, was a great dign~tary. . . . I t is one of the chief glories of Ambrose in the Church, that St. Augustine Kal yhp &%!3Aqeri.rap bci 70; irPdAAovrar o&a yuvii. yap poixahlr ol6rudr imr yuufj.-Horn, on 1 Darinthisns vii. 39, 40. aKal 7b aiah6.ru iLsayiyopdri ~byvkP av, piav 6i pduqu d@app?u 8~aAdoewr i6waa, T+Y bAq061 Gieoniirc~u~ h(vdy hqv. n2s ykp, +vvlv, 6 d=wALv T~yVuv ai~ora t.ro0, TSPIIIT~EA 6y0" TOPV~?~~Po,z ~imh?PvO IXEYO~YGmiL ~ &na~yop~wv p~o~~~2~a~i.-~i'G~r;eo~&ru~Amf f ectionurn Curatio," Disp. IX. Mlngs's Ed. Tom. IT. p. 1056. 6 *
  • 90. 84 DIVORCE AND RE-MARRIAGE ascribed to him his conversion, and sought Christian baptism at his hand."] St. Ambrose held equal conduct for husband and wife : "Let no one flatter himself in reference to the laws of men. All unchastity is adultery: nor is that lawful for a husband which is not lawful for a wife."2 On Luke xv~1.8 , St. Ambrose wrote : "Hear what God has said, HE who puts away his wqe, causes her to commit adultery. For over her, to whom it is not lawful, while her husband is alive, to change her consort, the lust of sinning may stealthily creep." . . . " Consider if she marries. The blame of her necessity is yours : what you think marriage is adultery; for what does it matter whether you admit it with the open confession that it is sin or as an adulterer under the appearance of marriage." Later on he writes of the Mosaic concession in contrast to the teaching of Christ : " Mosespermitted, he says, not God ordered; from the beginning the law of God existed. What is the law of God? A man shall leave his father and mother, and shall cleave to his wife, and they two shall be one flesh. Therefore he, 1 " Dictionary of Ohristis,~ Biography." ac'Nsmo sibi blandiattur de legibus haminum. Omne stuprum adulterium est, nso viro lioet quod mulieri non 1icst."-" De Abra-ham," lib. i. 3 'c Audi quid dixerit Dominus: Qui dimittit mulie~em, faiacit eam mmchari. Etenim oui non licet, vivents viro, mutare oon-jugium, potest abrepsre libido peocs*ndi."-"Expositio Evangelioa. seoundum Luosm," lib. viii. 8 2. ."'Pons, si nubat. Neoessitatis illius tuum crimen est ; et con-jugium quod putas, adultcrium est. Quid enim rsfert, utrum id aperta criminis oonfessione, an rnariti speoie adulter admittas."- Ibid.
  • 91. FROM CONSTANTINE TO JUSTINIAN 85 who dismisses his wife, cuts his own flesh, divides his body."' While St. Ambrose allows separation for adultery (and ?ropvelameans with him post-nuptial unchastity), there is no allowance of re-marriage. c. 350-407. ST. CHROMATIUBS,I SHOOPB AQUILEIA. ['I Chromatius is better known by the wholesome influence he exercised over some of the first men of the age than by any remrarkable actions of his own." He became Bishop of Aquileia, his native city.1 Chromatius wrote: "For He commands the mar-riage bond to be kept spotless by an indissoluble law, showing that the law of marriage was at the first instituted by Himself. For He himself says: What therefore God has joined in one, let not man separate. . . saying that except for the cause of fornication it is not lawful for a wife to be put away, showing clearly that he acts against the will of God who presumed to desecrate marriage, joined by God, with the unlawful separation of divorce. Whence let them not be ig-norant how heavy a sentence of condemnation they inour in the sight of God who through the unbridled pleasure of lust (without the cause of fornication), after dismissing their wives wish to pass to other marriages. Which, therefore, they believe they commit with im-punity, because that appears to be allowed by human laws and those of the world, ignorant that in this 1" Moyses permisit, inquit, non Dens jussit : ab initia sutem Dei leg sst. Quae est lax Dei? Rdliltpuet homo &?em et mati-ern et adhoerebit uzori sum, et erunt ambo in came u7za. Ergo qui di-mittit uxorem, oarnem suam soindit, dividit oorpus."-Ibid. 2" Dictionary of Christian Biography."
  • 92. FROM CONSTANTINE TO JUSTINIAN 87 vile faults that not even a prostitute or mean slave could endure them. . . . The Lord enjoined that a wife ought not to be dismissed except for the cause of fornication, and if she had been dismissed to re-main unmarried. Whatever is enjoined to husbands, this, as a consequence, extends to wives. For an adulterous wife ought not to be dismissed, and a husband who is an adulterer retained. . . . The laws of the C~sarsa re one, the laws of Christ are another. Papinianus enjoins one thing, our Paul another. . . . Among us what is not lawful for wives is equally not lawful for husbands. . . . Therefore Fabiola, both because she had persuaded herself and thought that her husband was rightly dismissed by her, and because she did not know the force of the Gospel, in which the entire ground for marrying is cut off from wives, while their husbands are still alive; while she avoids many wounds of the devil, unawares she receives one wound. . . . Who will believe this, that after the death of her second husband . . . she put on sacltcloth that she might publicly confess her error, and with the whole Roman city looking on, before the day of the Passover in the Basilica of Leteranus (who was beheaded with the imperial sword), she stoodin theline of penitents (the Bishops, Presbyters, and all the people weeping with her). . . . So she grieved as if she had committed adultery, and at much cost of remedies desired to heal the wound."' '"Tants, prior msritus vitia habuisse narratur, ut ne soortum quidom et vile manoipium ea. sustinere posset. . . . Przoepit Dominus unorem non deberc dimitti, exoepta onus& fornicationis : et si dislilissa fuerit, manere innuptam. Quidquid ?ins jitbetur,
  • 93. 88 DIVORCE AND RE-MARRIAGE St. Jerome then held that adultery was a ground of separation both for husb'nd and wife, but re-marriage during the life of the partner was forbidden to both. The only excuse he can offer Fabiola is that " she knew not what she did ". This position is further emphasized, for in A.D. 384 Jerome wrote to Amandus, a priest of Bordeaux: "It is inquired of that man, that is fromme, whether a wife having left her adulterous husband, who is a sodomite, and having received another husband through compulsion, can without penance communi-cate with the Church, that husband whom she had first left being still alive. . . . "Thus in reply tell the sister, who inquires from us concerning her position, not our opinion but that of the Apostle. Are ye ig?zora?zt, brethrem, for I s~eakto them that klzow the law, since the law gouerns the man as long as he lives ? For the woman, who is t~nder the man, is bound to the law, so long as her lzusband is alive. But hoo consoquenter rsdundat in feminas. Neque enim rtdultera uxor dimittends, est, et vir mcechus tenendus. . . . Aliie sunt leges Cassrum, alia Ghristi : siiud Papinienus, aliud Paulus nostex prieoipit. . . . Apud nos quod non licet fominis, aque non lioot viris. . . . " Igitur et Rebiola, quia. persutlserat sibi, et putsbat a so vhum jure dimissum, nec Evsngelii vigorem novsist, in quo nubondi uni-versa oausstio, vivontibus viris, feminis amputatur, dum muita diaboli vitat vulnors, unum inoauta vulnus aooepit. . . . Quis hoo crsderat, ut past mortem seoundi viri . . . saooum induevet ut errorem pnblice fatoretur: et tota urbe spectante Romana ants diem Paschie in Basilica quondum Leterami, qui Diesariano trun-catus est gladio, staret in ardine penetentium, Episcopo, Presbyteris, et amni populo oollaelymantibus . . . sic doiebat, quasi adulterium commisisset, et multis impendiis medioaminu~n unum vulnue sanare oupieb~t."-Ep. ~xxx~Avd. Oceanum.
  • 94. FROM CONSTANTINE TO JUSTINIAN 89 +' her husband be dead, she is free from the law of her husband. Therefore, nui~ileh er hzisband is alive, she is an adnlteress if she has married another man. And in an-other place : A woman is bound so long as her husband liveth, but if he is dead, she is free : she may marry whom she wishes, only in the Lord. Therefore the Apostle, cutting off all reasons, very clearly laid it down that a woman is an adulteress if she has married another man while her husband is alive. I do not care if you urge upon me the violence of the ravager, the persua-sion of the mother, the authority of the father, the crowd of relations, the plots and scorn of slaves, the loss of the family property. As long as her husband is alive, although he be an adulterer, a sodomite, plastered with every shame and left by his wife for these crimes, he is considered her husband, and it is not permitted her to take a second husband." ' "Quaerendum ab eo, id est & mo, utrurn mulier relicto viro sddultero, et sodomita, et aiio per vim aooepto, pussit abscpe pceni-ientia. oommunicare Ecolesiae, vivsnto adhuo so quem prim reli-querat. . . . ', Responde itsque sorori, qua a nobis super suo statu quazrit, non nostram, sed Apostoli sententiam. Czli iqsoratis, pat re^, scisntibus enim legem loquor, quoniam laz donziliatur homini, qua~ztote m~orev ivit ? Mulier eniwc puce sub wivo est, vivenie viro, astricta est legi. Quod si mortuzhs fuerit vir ejus liberata est a logo uiri. Elgo, vivenie vim, ndultora wit, si dumerit alterum .~irtrn. Et in slio loco: Aft'lier alligata @st, quanto tsmpore vivit uir ejus. Si autwn~dovmie~oiitl . ejus, libewata est : cui stit m~batt,a nturn im Domino. Omnes igitur oausiltiones Apostolus amputansl &per-tissime definivit, vivsnteviro adultsram ssss mulierem, si alteri nup-serit. Nolo mihi proferas raptoris violentiam, mstris psrsuas-ionem, patris suotoritatom, propinquorum ostorvsm, servorum, insidias stque contempturn, damns rei familimis. Qusmdiu vivit vir, licet adulter sit, licet sodomits, licet flagitiis omnibus oo-
  • 95. 90 DIVORCE AND RE-MARRIAGE A.D. 354-430. ST. AUGUSTINE. St. Augnstine wrote very fully on marriage and divorce, and what he had to say is spread throughout his work. He deals with the many difficulties sur-rounding the questions, and we have his teaching from his days as apresbyter right on through hisEpiscopate. I t will not be necessary, for the purposes of these pages, to quote all the passages ; for any student, considering the good indexes attached both to the original text and transiatlons, can easily for himself work through the passages. It will he as well to first deal with a disputed pas-sage, in reference to its meaning, in St. Augustine's writings. I t is the passage in " De Fide et Operi-bus," and may be translated as follows :- "Also whosoever has put sway his wife taken in adultery and married another, it does not appear that he ought to be put on a level with those who for other than the excepted cause of adultery dismiss their wives and marry others. And in the Divine sentences themselves it is so doubtful, whether he also, to whom indeed without a doubt it is permitted to dismiss an adulterous wife, is nevertheless to be deemed an adulterer if he has married another wife, that, as far as I form an opinion, on that point auy-one may pardonably (vmialiter) he deceived. Where-fore whatever sins of unchastity are clear they en-tirely must shut off from baptism, unless they are corrected by change of will and penitence. As to opertus, et ab uxore propter heeo soelera. dereliotus, msritus ejus re-putstur, cui alterurn virum aocipere nan 1iost."-Epistola r.v. cap. 3.
  • 96. FROM OONSTANTINE TO JUSTINIAN 91 what moreover is doubtful, in every way an endea-vour ought to be made t'hat such unions do not take place. For what necessity is there to involve oneself (oaput mittere) in so doubtful a condition (in tanturn discvime7z anzbigtaitatis) ? But if these marriages have been entered into, I am uncertain whether those, who have contracted them, may not appear to be eligible for admission to baptism." ' St. Augnstine is here dealing, it is obvious, with those who were unbaptized, i.e. the Catechumens, and who therefore were incapable of Christian marriage, which alone is indissoluble. The contro-versy has arisen from the fact that what was in-tended to apply to those not yet Christians, has been made to apply to Christians.= These Catechumens delayed their baptism-as did Constantine-because they were unwilling for various reasons, such as disinclination to discontinue their wicked practices, and wished first to " sow their wild oats" and then, at baptism, "have all such sins forgiven ". They, allowed by the Civil Law, 1 " Quisquis etiam uaorem in adulterio deprehensarn dimiserit, et aliam durerit, non videtur tequandus eis qui excepts, cans& adulterii dimittunt et ducunt. E t in ipsis Divinis sententiis it8 obsourum est utrum ot iste, cui quidem sine dubio sdulteram licet dimittere, sdulter tamsn habesrtur si alteram di~xerit,u t, quantum existimo, venialitex ibi quisque falls*tur. Quamobrem quie manifests sunt irnpudioitite orimina, omni modo a baptismo prohibends. sunt, nisi mutstione voluntatis et pmnitontia. oorrigantur: qua autem dubia, omni modo oonilndumest ne fiant tales conjunctionas. Quid enim opus est in tnntum discrimen ambiguitatis oaput mittere? Si autem faotce fusruit, nescio utrum ii qui feoeruit, similiter ad bnp-tismum non debere videantur admitti." 2 Of. Bingham, xx11. oh. xi. 5 12.
  • 97. 92 DI'IOROE AND RE-MABRIAGE divorced their wives and took others. St. Augustine is dealing with the question of these re-marriages after divorce, allowed by the Civil Law but disallowed by the Church. He thinks it may be perhaps con-sidered a venial offence (vcnialiter ibi quisque fallatzlr), but asks, why run one's head into such a doubtful position even for Catechumens? The passage has nothing to do with Christian marriages and cannot justly be so applied. St. Augustine's teaching in reference to Christian marriage and its indissolubility is abundantly clear from his writings :- "It is possible that a husband may dismiss a wife for the cause of fornication, which the Lord willed to be an exception." ' The wife has the same right of dismissal as the husband-'' if then the rule is similar, it ought not to be understood, that it is permitted, as to the husband, so to the wife to dismiss the husband except for the cause of fornication ".2 But in neither case is it lawful to marry during the lifetime of the other. " Moreover, if it is not per-mitted her to marry while her husband is alive from whom she departed, neither is it granted to him to take another, his wife whom he dismissed being alive." This is brought out very clearly in his reply "'Fieri enim patest ut dimittat uxarem osusa,fornioatianis, quam Dominus exoeptam esse voluit."--" De Sermane Damini in Monte," lib. i. 9 39. %" Si ergo similis forma est, non oportet intelligi lieere mulieri ~irumdi mittere nisi causa, fornicationis, siout et viro."-Bid c. 43. 3" Jemvsro si nsc illi nubsre oonceditur viro viva s, quo reoessit, neque huio alteram duoere vita uxore quam dimisit."-IMd. o. 39.
  • 98. FROM) CONSTANTINE TO JUSTINIAN 93 to Pollentius, who maintained adultery was equal to death.' In his "Retractations " St. Augustine withdrew his former opinion that a husband need not dismiss a wife living in adultery, but a place of repentance must still be left open to her. "And where I said that this was allowed, not ordered, I did not consider another passage of Scripture which says, He who keeps an adulteress is foolish and impiotbs (Prov. X~III. 22). Neither could I indeed have said that woman must be considered an adulteress, ever after she heard from the Lord, Neither will I condem?~ thee : Go, now sin no more, if she heard ob~diently."~ In his early years St. Augustine was inclined to think that ("Sermon on the Mount," bk. i. 5 46) unbelief, which included idolatry and covetousness, was fornication, but in his later years in his "Re-tracts" (bk. i. c. XIX. § 6) he stated : " But now this fornication is to be understood and limited; and whether also on account of this it is permitted to dismiss a wife is a very obscure question." " Sed quatenus intelligenda atque limitanda sit hac forni-catio, et utrum etiam propter hanc Iiceat dimittere uxorem, latebrosissima quastio est." " Finally, with Augustine," writes Dr. Ro~ard,~ '"Nee s, lege viri nisi mortui liberstur, ut non sit adultera, si fuerit cum alio viro."-"De Conjugiis hdulterinis," lib. ii. o. v. 2" Et ubi dixi hoc permissurn oms, non jussum, non attondi aliam Scriptursm diosntem: Qui tenet adulteram, stultus et impizcs sst. NBC Sane adultaram dixerim fuisss dsputandum illsm mulieram, etiam postsaquem sudivit a. Domino, Neo ego te danznabo; valde, dsinee-ns i.am noli -o eecave, ai hoo obedienter audivit."-"Rotraota-tianes," lib. i, cap. XIX. $6. 3"Histoq of Miltrimonial Institutions," Vol. 11, pp. 26.7.
  • 99. 94 DIVORCE AND RE-MARRIAGE "the strict doctrine of the early Church takes a definite form, to which the masters of later times look back as to an authoritative canon of interpreta-tion." He gave to the theory of indissolubility, de-clares Esmein, a "basis solid, in a measure scientific. He gave it a consistency forced from the sacrament of marriage. He set aside at one stroke all the causes of divorce admitted by the secular law: sick-ness, captivity, or prolonged absence. He was, one may say, the artisan who gave the final touch to the theory of indissolubility." ' According to Augustine, adultery is the only scriptural ground of separation ; but even this does not dissolve the nuptial bond. Moreover, those who, following the letter of Mat-thew's text, would for this offence allow the man, but not the woman, the right of repudiation, he "justly reproaches with violating one of the great principles of Christian law-the equality of the wedded pair "." Such is the testimony to St. Augustine's teaching, as given by a by no means "friendly " critic. A.D. 407. AFRICANC ODE. (Probably the 8th Canon of the Synod of Carthage, A.D. 407.) Canon 102: "It was decided according to the evangelical and apostolical discipline neither the husband dismissed by the wife, nor the wife dis-missed by the husband may be united to another, but let them thus abide or be reconciled to each other. But if they have treated this rule with con-tempt, let them be brought to penance. In which ' Esmein, op. oit. 11. 53. Ibid. 51, 52.
  • 100. FROM CONSTANTINE TO JUSTINIAN 95 matter action must be taken for the promulgation of an imperial law." ' This canon is interesting, as showing the attitude of the African Church. It does not define the ground of divorce, but it does deny any right of re-marriage to either the divorced husband or wife. I t urges that the secular law should be invoked to uphold the dis-cipline of the Church. A.D. 402-417. INNOCIE. NBITS HOPOF ROME. Innocent I, replying to Exsuperius, Bishop of Tou-louse, wrote : "Your charity also enquired concerning those, who (a divorce having taken place) joined them-selves in marriage with another : it is evident that on both sides they are adulterers. Those, then, who while their wives are still living, although the marriage appear to be broken, hasten to another union, cannot but appear adulterers, so much so that even the women, to whom such husbands are united, must also appear to have committed adultery according to that wh~chw e read in the Gospel." " De his etiam requis-ivit dilectio tua, qui interveniente repudio alii se matrimonio copularunt: quos in utraque paste adul-teros esse manifestum est. Qui vero vel uxore vivente, quamvis dissociatum videatur esse conjugium, ad aliam copulam festinarunt, neque possunt adulteri non videri, in tantum ut etiam hae personie, quibus tales conjuncti suut etiam ipsie adulterium commissise ' " Plaouit, ut secundum evangelioam et epostolicam disciplinmn neque dismissus sb uxare, nsque dismissa s. msrito alteri oanjun-gantur, sed it& manesnt, sut sibimet reooncilientur. Quod si oon-timpserint, ad pcsnitentiam reaigantur. In qus. oeuse legern imperialem petendum est promulgad."
  • 101. 96 DIVORCE AND RE-MARRIAGE videantur : secundum illud quod legimus in evangelio." -"Ad Exsnperium Episcopum Tolonsanum," Mansi, Tom. III, p. 1040. There are certain commentaries on St. Paul's Epistles by an unknown writer; but one thing scholars are agreed upon is that they are not by St. Ambrose. The writer declares : "It is not permitted a woman to marry if she has dismissed her husband on the ground of fornication or apostasy . . . because the meaner part has not altogether this law which the more dignified has," hut declares, "it is permitted a man to marry again if he has put away his sinning wife, because the man is not so bound by the law as the woman, for the man is head of the woman." "Non enim permittitur mulieri, ut nubat, si virum suum causa fornicationis dimiserit, aut apostasia . . . ., quia, inferior non omnino hac lege utitur, qua potior . . . . viro licet ducere uxorem, si dimiserit uxorem peccantem : quia non ita lege constringitur vir, sicut mulier ; caput enim mulieris vir est."- Commentary on 1 Cor. vii. 10, 11, Minge's "St. Ambrose," Tom. 11, p. 218. This unknown writer is the only writer, excepting Lactantius, connected with the Western Church, who takes up this position.
  • 102. CHAPTER IX. THIS EASTERN CHURCH AFTER JUSTINIAN TEIS Council decreed- Canon 87 : " If anyone forsakes his wife and marries another, he shall (according to the 57th Canon of St. Basil) remain for a year in the lowest, two years in the second, three in the third, and one year in the fourth grade of penitence." ' It will serve no good purpose to trace step by step the progressive divergence of the Eastern Church from the Western. She simply carried her premises to their logical conclusion. "Eastern theology at length passed for itself rules shortly expressed in the following canons, founded in the synodical decisions of Alexius, who was patriarch of Constantinople in the beginning of the eleventh century :- " 1. No clergyman is to be condemned for giving the benediction at the marriage of a divorced woman, when the man's conduct was the cause of the divorce. " 2. Women divorced by men whose conduct has been the cause of divorce are not to be blamed if they 'Befeie's " Church Counoils, A.D. 626 to A.D. 781," p. 243. 97 7
  • 103. 98 DIVORCE AND RE-MARRIAGZ choose to marry again, nor are the priests to be blamed who give them the benediction. So, too, with regard to men. " 3. Whoever marries a woman divorced for adultery is an adulterer, whether he has himself been married before or not, and he must undergo the adulterer's penance. "4. Any priest who gives the benediction at the second marriage of parties divorced by mutual con-sent (which is a thing forbidden by the laws) shall be deprived of his office. "The teaching embodied in these canons and the practice founded upon it, has continued to be the teaching and the practice of the Oriental Church to the present day." ' (1) THE WESTERN CHURCH IN ITALY AFTER JUSTINIAN-A. D. 590-604. GREGORYTH E GREAT. Gregory the Great wrote: "For if they say that for the purpose of entering themonastic life (religionis cam&) the marriage bond ought to be dissolved, it must be known, that although human law has granted this, yet the Divine law prohibits it." A.D. 716. GREGORY11 . In A.D. 716 Gregory I1 gave the following instruc-tions to his ambassadors in Bavaria : " The Apostle himself speaking on this matter says : Thou art bawd to a wqe, seek not to be loosed; that is, while thy wife is alive, do not desire to pass to 'concupita ' with 'Smith's " Dictionary of Antiquities," Vol. 11, p. 1113. '', Epistolarum," lib. xi. 45, Ad Theoetistam Patrioiam.
  • 104. ... ... ..a . . .. .. . " .., .. another woman ".I But his !et%..$rr: ..S .k. .B..d n.i face, who had consulted him in ~.~."7~~.~.i..' s'abbrpti~i11~ ~ one and creates great difficu$?j. ., i. . I.% .%&s ;th&.E$,i i bf a wife incapable of conjuiaI 1nterdo~~6'.~n~ir'nEIkdte correpta). It was post-nuptial infirmity. The hus-band, WESTERN CHURCH IN ITALY AF&?~~U$T~IAN99 if unable to contain, is allowed to marry again, but he must not withdraw maintenance from his wife.% The great Canonist Gratius in the twelfth century realized the diffionlty of this break in the teaching of the Western Church, and wrote : " That passage of Gregory is found altogether opposed to the sacred canons, nay, even to the evangelical and apostolical do~trine".~H e wrongly explains it as being a tem-porary concession to the English, seeing that the latter referred to the Germans, among whorn St. Boniface was ~orking.~ A.D. 747. ZACHARIAS. The inroads of the Barbarians upon the Roman Empire created other difficulties for the Church, as will be seen from Pope Zacharias's letters. He quotes-" C. 7 : Concerning a layman repelling his wife from the canon of the holy apostles, chapter XLVIII. 1" Dicente ds hoo ipso Apostalo: alligatus es rama~i: noligz'corera solz~tionevz : id eat, super canjuge, sd alteram femina concupitam non vella transiro."-c' Capitulare Gregorii Papa 11." " Sed quih hoo magnorum est, ille, qui se non potorit continaro nubst magis. Non tamen subsidii opem subtriuhat sb ilia." "Decretum," o. 18, o. 32, q. I. Watson in his 8'Haly Matrimony," p. 378, hes an interesting suggestion that Gregory I1 deferred to Archbishop Theodore af Canterbury, who, as will be seen in oounegion with the Anglo- SaxonOhurch, look the view of the Eastern Church. 7 *
  • 105. . . . . . . . . . . 100 .. . ... . .P. .. . .~.. . ~A?NDF REE-MA RRIAGE If i~:&. y. b.. 8. n .: .x epel%ng his own wife has taken anotfier 6r ~Ee'di~rhi~bsy ~adno ther, let him be de- ~ .... . ... p.'1 j.i+p. .% . .6.2. C?mp+ieg... ... .i ": ..a '"'C.'lZ:"C'dric6rnlng those who dismiss their wives or husbands, that they remain thus : from the African Council above mentioned in chapter LXIX. it is thus contained: it was resolved that according to evan-gelical and apostolical discipline, neither a man dis-missed by his wife, nor a woman dismissed by her husband, may be joined to another; but that they so remain or be ~nutually reconciled. But if they have acted contemptuously, let them be brought to penance." ' A.D. 791. COUNCILOF FRIULI. The Council of Priuli in Canon 10 debated the question of the "exception " in Matthew XIX. 9, and carefully studied St. Jerome's teaching "when im-mediately it nevertheless became clear that it referred solely to the permission of putting away a wife ".= " So it was resolved that when the bond of marriage is loosed by reason of fornication, it is not lawful for the man, as long as the adulteress lives, to taker another 1 " C. 7.: De laioo pellente suam oonjugem ex canons sanotarum apostolorum, oapitulo 48. Si quis laious uxorcm pmpriam pellsns siteram vel sb &lio dismisssm duaerit, comrnunione privetur. , 11 0. 12: Ds his qui uxoros aut viras dimittunt, ut sic maneant, ex oonoilio superasoripto Afriosno, oapitulo 69 ita. oontinetur: plaauit ut secundum evangelioav~n ot apostolicam disoiplinsm, noqus dimissus ab uxore, neque dimissa a marito, slteri oanjun-gi~ ntur; sod ita maneant ant sibi invioem raooncilentur: Quod si ~ontem~seruiatd, pmnitentiam rodipntur." 2 ',In prornptu nihilo minuspatuit, sd solam dimittendi uxorsm licent,iam pertinere."
  • 106. WESTERN CHURCH IN ITALY AFTER JUSTINIAN 101 wife . . . nor for the adulteress, who ought to pay the heaviest penalties or the punishment of penance, to take another man, whether her husband, whom she has not been ashamed to defraud, be alive or dead." ' A.D. 826. COUNCILO F ~~ONIE. This Council was held under the presidency of Pope Eugenius 11. It decreed : "It is permitted no man to give up, except forthe cause of fornication, the wife joined to him, and then unite with another. For the rest it is expedient for the transgressor to be joined to his former wedlock. But, moreover, if the husband and wife for the sake of the 'religious life ' alone have consented to separate, nevertheless, let it not be done without the consent of the bishop. . . . For without the wife's consent, or either of them, even for such a cause, marriage is not to be dissolved." " Nulli liceat excepta caussa fornicationis adhibitam uxorem relinquere, et deinde aliam copulare : alio-quin transgressorem priori convenit sociari conjugio. Sin autem vir et uxor divertere pro sola religiosa inter se consenserint vita nullatenus sine conscientia epis-copi nolente, aut altero eorum, etiam pro tali re matrimonium non solvatur." This canon is very uncertainly drawn: as it stands it permits re-marriage after divorce for fornication and so breaks into t,he traditional teaching of the Church. ' "Item placuit ut, resoluto fornicstionis coussa jugali vinculo, non licest ~iroq,u amdiu adultera vivit, aliam uxorem duoere, . . . sed nsc adulterre, qua pmnas gravissimas vs! pcenitentia tormcn-turn luere debet, alium sccipere virum, neo vivente, neo mortuo, quein non erubuit defraudare, marito."-Mansi, Tom. XIII, p. 849.
  • 107. 102 DIVORCE AND RE-MARRIAGE A.D. 862. POPEN ICHOLASI AND THE THIRD COUNCILO P AACHEN.~ Xing Lothair had married Theutberga, daughter of the Count of Burgundy, but shortly afterwards re-pudiated her on the ground that she had been guilty of incest before her marriage. The matter was much debated in Synod by the Bishops of Lorraine, who in the Third Council of Aachen (A.D. 862) at Aix-la-Chap-elle, after claiming to have carefully examined the evidence of Scripture, Councils, and Fathers, and after declaring the result that re-marriage after divorce was not permissible, decided the marriage null and void ab i?~itio.~ Pope Nicholas I regarded this as a surrender, and promptly excommunicated all who had taken part in the Council. (2) WESTERN CHURCH OUTSIDE ITALY.3 A.D. 453. COUNOILO F ANGERS. This Council decreed : " Those also who abuse other men's wives, while their husbands survive, under the Given in this aootion becmne of the action of Popo Nicholas T, although the Council itself would properly ooms in the next section. 2 Cf. Hinomnr " do divortio Hlotharii et Theutbergie ". "0 appreciate the difficulties whioh beset the Churoh and the action of the various Counoils, it is nnoessary to remember the character and oustoms of tho people to be Christianieed. "To analyze the ~ooulalra ws or ecoiesissticd canom relating to divorce, as they were slowly developed on Germanic territory after the oon-version, is not sn easy task; for they reveal a striving to harmoni%s in vitrious ways the often irreoonoilable elements of Roman, Teu-tonic, and Christian ideas ". (Howard, Voi. 11, p. 36, but see also pp. 33.8). Yet gradually, but none the less certainly, the Churoh was enablcd to give her full te8ching.
  • 108. WESTERN CHURCH OUTSIDE ITALY 103 name of marriage, let them be excluded from Com-munion ". " Hi quoque qui alienis uxoribus, super-stitibus ipsarum maritis, nomine conjugii abutuntur a communione habeantur extranei." This Council, under the presidency of Perpetuus of Tours decreed : "Those also who having left their wives, as it is stated in the Gospel except for the cause of fornication and without the proof of adultery have taken others, we decree must be in like man-ner repelled from Communion, lest sins passed over through our indulgence invite others to the license of error." " Canon 2 : Eos quoque qui relictis uxoribus suis, sicut in evangelico dicitur, excepta causa forni-cationis, sine adulterii probatione alias duxeruit, statu-imus a communione similiter arcendos : ne per in-dulgentiam uostram praetermissa peccata alios ad licentiam erroris invitent." Re-marriage is granted by this Council, which was faced with the laxity of the laws of the Frankish Code. This Council decreed :- " Canon 25 : But those secular persons who are set-ting aside or even have set aside their conjugal fellow-ship for a somewhat grave fault, and alleging no reasons of divorce, nevertheless dissolve their mar-riages that they may take up either unlawful or foreign connexions, if before they have stated the causes of divorce before the comprovincial bishops and
  • 109. 104 : DIVORCE AND RE-MARRIAGE have rejected their wives, before they are condemned by lawful judgment,let them be excluded from the Communion of the Church and from the holy as-sembly of the people for the reason that they are de-filing their faith and marriages." "Hi vero seculares, yui conjugale consortium culpa graviore dimittunt vel etiam dimiserunt, et nullas causas discidii proba-liter proponentes, propterea sua matrimonia dimit-tunt, ut aut illicita, aut aliena prasumant ; si ante-quain apud episcopos comprovinciales discidii causas dixeruit, et prius uxores, quam judicio damnentur, abjecerint ; a commuuione ecclesia, et sancto populi ccetu, pro eo quod fidem et conjugia maculant, ex-cludantur." This Council allowed divorce for fornication and probably other causes and also re-marriage. A.D. 681. TWELFTFCI OUNCILO F TOLEDO. This Council, held under the presidency of Julian, Metropolitan of Toledo, and at which King Ervigius was present, decreed : "It is a command of the Lord, that except for the cause of fornication a wife ought not to be dismissed by her husband." " Praceptum domini est, ut excepta oausa fornicationis, nxor a viro dimitti uon debeat." This Council, which was attended by twenty-three bishops, decreed : "Any man while his wife is alive may not take another wife, nor a woman, while her husband is alive, take another husband." " Nec marito vivente suam mulierem alius accipiat, nec mulier vivente suo viro alium accipiat."
  • 110. WESTERN CHURCH OUTSIDE ITALY 105 THE CASE OF CHARLEMAGNE. This case, happening about this time, will serve to illustrate the difficulties of the times, arising from secular and religious ambitions. Charlemagne for political purposes desired an alliance with the House of Lombard, so without any scruples " divorced his wife (an obscure person, whose name has not been preserved by history) and wedded the daughter of Desiderins, King of the Lombards. In this union the Pope saw the whole policy of his predecessors threatened with destruction, their mighty protector become the ally, the brother of their deadly enemy," and so in unmeasured language, in which hatred of the Lombards rather than the upholding of religion was apparent, wrote against this marriage : "The enmity of the Lombards to the papal see is implacable. Wherefore St. Peter himself solemnly ad-jures them, he, the Pope, the whole clergy, and the people of Rome adjure them by all which is awful and commanding, by the living and true God, by the tremendous day of judgment, by all the holy mysteries, and by the most sacred body of St. Peter, that neither of the brothers " (both of whom were already married) "presume to wed the daughter of Desiderius, or to give the lovely Gisela in wedlock to his son". (Adelchis was unmarried.) " But if either (which he cannot imagine) should act contrary to this adjuration, by the authority of St. Peter he is under the most terrible anathema, an alien from the king-dom of God, and condemned with the devil and his most wicked ministers and with all impious men, to
  • 111. 106 DIVORCE AND RE-MARRIAGE be burned in the eternal fire ; but he who shall obey shall be rewarded with everlasting glory. But Pope Stephen spoke to obdurate ears. Already Charlemagne began to show that, however highly he might prize the alliance of the hierarchy, he was not its humble minister. Lofty as were his notions of religion, he would rarely sacrifice objects of worldly policy."l This incident will show the temper of the times and also how the sanctions of religion were used by the Papacy both on the side of right and also against a temporal policy which was hostile to the Papacy. A.D. 753. COUNOIO~F ~V ERBERIES(V ERNON-SUR-SEINE). This Council decreed :- " Canon 2 : That in the case of incest the innocent party could marry again, but the guilty parties could never at any time marry any one." "Canon 5 : If any woman has plotted with any other men the death of her husband and that hus-band in defending himself has killed her man and he is able to prove this: that husband has power to send away that wife, and if he wished to take another." a 1 Milman's "Latin Christianity," Bk. IV, ch. xir. pp. 36-8. a"Si diquis oum filiastra so% manet, neo matrem, neo fili%m ipsiiis potest habere, noo ille neo ills, aliis se potuerunt oonjullgere ullo unquam tempore. Attamen uvorejus . . . potest ~linou bero." 3"Si qua mulier mortem viri sui cum aliis hominibus consiliavit et ipse vir ipsius hominem ss defendendo oooidsrit, eum sequi noluent, ipsa omni tempore, quamdiu uir ejus, quem secuta, non fuit, vivct semper innupta, penllanoant. Nam ille vir ejus, qui
  • 112. WESTERN CHURCH OUTSIDE ITALY 107 "Canon 17: If any woman has recalled herself, because her husband has never dwelt with her, let them go the test, and if it has been true, let them be separated and she may do what she wishes." ' " Canon 21 : He who has dismissed his wife that she may take the veil, may not receive another."" These canons and the canons of the Council of Compiigne, which are next to be considered, throw an interesting light on those days and the attitude of mind then existing. A.D. 757. COUNCILOF COMPI~GNE. This Council decreed in Canon 9 that a Frank, who leaves the service of his seigneur and also the wife received from him, and then takes another wife, that he was allowed to have her whom he took last.3 Canon 10 throws a strange light on the ecclesiasti-cal mind of the times : " Si quis, uxore accepta, invenit eam a fratre suo contaminatam, ipsam dimittens accepit aliam, ipsam que contaminatam invenit, uxor illius legittima est, propterea quia nee ipse virgo fuit illo tempore. Quod si tertiam postea acceperit, revertat ad medianam et ipsa posterior potestatem habeat alio viro se conjungere." "Canon 19: If a man afflicted with leprosy has a sound wife, and if he wishes to give her permission necessitate cogentc in alium looum fugit, si se abstinere non potest, alism uxorem cum pcenitentia potest aocipere." 1 " Si qua. mulier se reolamsvcrit, quod vir suus nunguam oum e& mansisset, exesnt inde ad crucem: et si verum fuerit, separantur, et ills, faoiat quad vult." 2" Qui uxorem suam dimiserit velare, sliam non aooipiat." a" Definitum eat, quod illam quam postea aocepit ipsamhsbeat."
  • 113. 108 DIVORCE AND RE-MARRIAGE to take a husband, that woman, if she wishes, may take a husband, and in like case, the husband also." ' A.D. 789. SYNOD OF AACHEN. This Synod was held in the palace of Charlemagne and decreed :- " Canon 13 : Also it was decreed in the same (African Council) that neither a wife, dismissed by a husband, may take another husband, while her own husband is alive, nor a husband take another wife, while his 6rst wife still lives." "Item in eodem (con-cilia Africano), ut nec uxor a viro dismissa aliurn accipiat virum, vivente viro suo, nec vir aliarn acci-piat vivente uxori priore." A.D. 829. SIXTH COUNCILO F PARIS. This Council decided : "And because unless for the reason of fornication, as the Lord says, a wife is not to be dismissed, but rather to be cherished. And let those who, after their wives have been dismissed for fornication, take others, be pronounced to be adulterers by the sentence of the Lord." " Et quod nisi caussa fornicationis, ut Uominns ait, non sit uxor dimittenda, sed potius sustinenda. Et quod hi, qui caussa fornicationis dismissis uxoribus suis alias ducunt, Domini sententia adulteri ease notentur." A.D. 862. THIRD COUNCIL OF AAOHEN " In causa Theutbergz, uxoris Lotharii regis, in quo permissum est Lothario, ut aliud conjugium iniret " (see p. 105). 1 Si vir isprosus rnulierem haboat ssnsm, si ~uleti donere oom-meaturn ut aooipiat virum, ips8 fernina, si vult, aocipiat. Sirniliter et vir."
  • 114. WESTERN OHURCH OUTSIDE ITALY 109 Canon 16 ; " That those, who dismiss their lawful wives without the fault of fornication, may not take others, while their wives are living, nor wives hus-bands, but let them be rec,onciled to each other." flub1' 11 1 . qui uxores legitimas sine culpa fornicationis dimittunt, alias non accipiant illis viventibus, nec uxores viros, sed sibimet reconciliantur." "Canon 12 : That no one, having left his lawful wife, may take another." "Ne quis legitima uxore derelicta aliam duceret." A.D. 1060. COUNCIL OF Touns. This Council decreed : " . . . or he who, dismissing his wife without the episcopal decision has married or may have married another, let him know until he has given himself thoroughly ~ructuose) to penance that he is excluded and shut o!f from the body and blood of our Lord Jesus Christ and from the precincts of the Church and in every way, is cut off, as a dis-eased member from a, sound body, by the sword of the spirit, which is the Word of God." " . . . Vel qui suam uxorem sine judicio episcopali dimittens, aliam duxit, vel duxerit: donee se fructuose tradat pmni-tentite, a corpore et sanguine domini nostri Jesu, et a liminibus ecclesite se exclusum et alienatum, et omnimodis sicut putridum membrum a sano corpore prtecisum gladio spiritus, quod est verbum Dei, agnoscat."
  • 115. 110 DIVORCE AND RE-MARRIAGE c. A.D. 1139-1142. GRATIAN. [Gratianus Franciscus was the compiler of the " Concordia Discordantium Canonum et Decretum Gratiani," and was born at Chiusi in Tuscany about the end of the eleventh century. . . . The precise date of this important work cannot be ascertained, but it contains references to the decisions of the Lateran Council of 1139, and the statement is vouched for by the tolerably good authority, that it was compiled while Pope Alexander I11 was still simply professor of theology at Bologna-in other words prior to 1150.1 GRATIAN'SD ECRETUM. (" Concordantia Discordantium Canonurn.") c. 32, q. 7. " C. 1 : The bond of marriage cannot be broken by fornication. " C. 3 : If either the husband has departed from his wife, or the wife from the husband on the ground of fornication, it is unlawful to take another. " C. 6 : He commits adultery who presumes to marry a woman dismissed from her husband. " C. 7 : She is proved an adulteress who, while her husband lives, marries another." 1,' Enoy. Brit." 2" 0. 1: Vinculum oonjugii fornioatione dissalvi non potest. " 0. 3 : Sive vir aburore, sive uror a viro oausefornio&ti.tionis dis-oesserit, alteri adharere prohibetur. ,"0. 6 : Mceohatur qui s vira dismissam duoers prasumit. " C. 7 : Adultera probatur, qua vivsnta marito alteri nubit."
  • 116. WESTERN CHURCH OUTSIDE ITALY 111 A.D. 1110-1160. PETERL OMBARD. [Peter Lombard was born about the beginning of the twelfth century at Novara, then reckoned as belonging to Lombardy. He became a theological professor at the University of Paris, and his famous theological handbook, " Sententiarum Libri Quatuor," was primarily a collection of sontentire patrum. . . . It soon attained immense popularity, ultimately be-coming the text-book in almost every theological school, and giving rise to endless commentaries.' He became Bishop of Paris.] Peter Lombard wrote: "The marriage bond still exists between those who, evenif departing from one another, having joined themselves to others." " ' " Enog. Brit.'' Z'cMansit snim vinculum conjugate inter sos etiamsi aliis a se disoedentes adhierint."
  • 117. CHAPTER X THE ANGLICAN CHURCH. FOR the purposes of our subject it will not be neces-sary to inquire minutely into the marriage customs, prevalent in Britain, and which aresurrounded with obscurity, before the introduction of Chri~tianity.~ The invasion of the Romans, lax as their own marriage laws and customs were, would somewhat raise the conception of marriage in a country where licentiousness in extreme form, perhaps even to pro-miscuity, existed; but the well-known toleration of the Romans of custorns and practices, which did not conflict with Imperial interests, must be reckoned with. "At the time of the conversion the Old English laws on this subject were probably much the same in chmacter as those of their Teutonic kinsmen across the Channel. From the Code of Bthelberht it may perhaps be inferred that divorce is allowed at the will of either spouse. Apparently in all cases of arbitrary 1 The studont will find "The History of ILIatrimonial Institutions," in three volumes, by Dr. Howard (T. Fisher Unwin), gives a, some-what exhaustive trestment of Lhis subject, together with anabundant list of authorities, worked out from a purely seoular standpoint. lSeparstion sud divorce. 112
  • 118. THE ANGLICAN CHURCB 113 separation the responsible parby suffers a severe pen-alty. The man looses all claim to the purchase price of the wife; while the woman or her guardian has to restore the same to her husband or his family."' At what time Christianity was introduced into Britain is a much disputed question, but it owed something to the traders from Asia Minor, through Gaul, during the Roman rule before A.D. 200. In the Diocletian persecution we find St. Alban martyred at Verulam in A.D. 303. The Church at this period produced several prominent ecclesiastics, including the heretical ~ela~ius. A.D. 314. It will also be remembered that the three British Bishops-Eborius of York, Adelfius of C~erleon, and Restitutus of London-were among those who signed the decisions of the Council of Arles, and this will be an index, in some measure, to the state of the Church of which they were Bishops. While St. Jerome, in his epistle to Evagrius, states "the Churches of Gaul, Britain . . . worship the same Christ and are governed by the same standards of faith ". c. A.D. 547. But the Epistle of Gildas, written somewhere about A.D. 547, ~ointsto great depths of wickedness; he denounces the British kings as "he ststernents of the text are probably sustained by Bthel-bsrht," 31, 77-83,in Haddan and Stubbs, " Counoils," In. pp. 45,49 ; Thorps, '' Ano. Lsws,"~1.1 . p. 33, taking intoaccount theusual effects of wife purchase. Cf. hoae~erJ, eaffreson, " Brides and Bridals," 11. pp. 294.8, who holds that among the pagan Britons snd Anglo-Ssxans divorce mag be described as " simple replidistion of wives at the will of their masters ". 8
  • 119. 114 DIVORCE AND RE-MARRIAGE "tyrants, having very many wives, but harlots and adulteresses, perjurers, and false swearers ".I A.D. 596. Upon the introduction of Christianity into this island, the conversion of Ethelbert and of Kent when 10,000 of his people were baptized at one time and a church built on the site of Canterbury Cathedral, laxity would begin to give some place to the strictness of the Roman Church, wherever it ob-tained influence. The conversion of Sebert would bring Essex under the same influence, two churches being built on the ruins of two heathen temples (the supposed origin of Westminster Abbey and St. Paul's Cathedral), while Northumbria shared that gradual influence, owing to the conversion of its king, due to his marriage with the daughter of the Kentish king. Thus the whole country passed under Christian in-fluence. The questions of divorce and re-marriage were not among those upon which St. Augustine asked for directions from St. Gregory, although two questions, relating to matrimony, were submitted. So it is highly probable that the British Church, wherever it existed in an active condition, was in agreement with the Roman Church upon the question of the indis-solubility of marriage. <'Reges habetBritsnnia,ssd tyrannos; judioes habet, sedimpios: siepe pradantes et conoutisntes, sed innooentes; vindiomtes et patrooinantes, sed reos et latrones; quam plurirnss oonjuges hs-bentes, sed soortas et adulterantes; crebro jurantes, sed perjurrtntes ; voventcs, et continuo prope modum mentientes ; belligersntes, sed civilis et injustn bella, &gentes."-Haddnn and Stubbs, " Councils and Eoolesiastioal Documents," Vol. I, p. 48.
  • 120. THE ANGLICAN CHURCH 115 A.D. 673. COUNCIL OF HERTFORD. The importance of the representative Council of Hertford can scarcely be over-estimated : "This act is of the highest historical importance as the first constitutional measure of the collective English race ".I All the Bishops of the Anglo-Saxon Church then living, except Wini, the simoniacal Bishop of London, were present either in person or by deputy at this Coun~il.~ It was held on 24 September, A.D. 673, under the presidency of Archbishop Theodore, who had been nominated and consecrated by Pope Vitalian and who arrived in England in May 669 A.D." It decreed "that no man leave his own wife except as the holy evangel teaches, for the cause of fornica-tion But if any one have expelled his lawful wife, joined to him by lawful nlatrimony, if he will rightly to be a Christian, let him be joined to no other; but let him so remain or be reconciled to his own wife." Here it can be seen how the wickedness of the day was met and the indissolubility of Christian marriage proclaimed. '" Diotionery of Church Biography," Vol. IV, p. 928. aHaad&n and Stubbs, Vol. 111, p. 121. 3Plummor's "Bede," Bk IV, oh. v. p. 211. -"'Deoimum, pro conjugiis, ut nulli lioeat nisi legitirnum habexs cannuhiurn. Nullus incesturn faoiat, nullus oonjugam praprimo, nisi, ut sanctum evangelium docet, fornioationis csusa relinquet. Quod si quisquam proprisom enpulerit conjugem legitimo sibi matri-manio conjunotsm, si Christianus esse recte valuerit, nulli alteri oo-puletur; sed it& permaneat, aut propria reoonoilietur canjugi."- Haddan and Stubbs, " Counoils," etc., Vol. 111, p. 120. 8'
  • 121. 116 DIVORCE AND RE-MARRIAGE A.D. 668-690. TH~ODORE P'SE NITENTIAL.^ Theodore (Archbishop of Canterbury, A.D. 668-690) was a native of Tarsus in Cilicia, being born in A.D. 602. "By such training as Tarsus and Athens afforded, he became a sound Greek and Latin scholar, a philosopher, a thorough adept in secular and divine literature, and, as appears from his whole history, a man of much tact and varied experience.'' He was nominated and consecrated Archbishop of Canterbury by Pope Vitalian in A.D. 668, being at that time " sixty-five years old, a monk of the Eastern and Pauline tonsure, possibly of the rule of St. Basil, and, if in orders at all, not yet advanced to the sub-diaconate". 2 He was enthroned at Canterbury in May A.D. 669. Some writers have doubted if Theodore wrote the Penitential. The whole question is carefully dis-cussed and traced historically by Hadden and Stubbs and the conclusions given are: "Although drawn up under the eye, and published with the authority of Theodore, it is not in the modern view a direct work of the great Archbishop . . . there is nothing to make it improbable that it was dr~wn up with the sanction of Theodore himself and under his eye : rather it may be said that the verses found at the end of the treatise, in which Theodore commends 1 To direct confessors how to conduct themselves in hearing oon- Cessions md enjoining penanoo.-Johnson'n " English Canons,'' Vol. I, p. 87. ""Dictionary of Ohuroh Biography," Theodorus (7) by Bishop Stubbs. Wf. " Oooncils and Eoolesiastical Documents," Vol. 111, p. 173.
  • 122. THE ANGLICAN CHURCH 117 himself to the prayers of Bishop Haeddi, make it certain that this was the case ". Theodore, then, directed : "If the wife of any man have committed fornication, he may dismiss her and receive another; this is, if a husband have dismissed his wife on account of fornication, if she were his first, it is permitted that he may receive another, but she, if she has wished to repent of her sins, may receive another husband after five years".' It will not be necessary to quote the opinions hav-ing an indirect bearing upon our subject : for "the penitential literature is in truth a deplorable feature of the mediieval Church. Evil deeds, the imagination of which may have perhaps directly floated through our minds in our darkest moments, are here tabulated and reduced to system. It is hard to see how any one could busy himself with such literature and not be the worse for it." What appears to be the explanation of Theodore's opinions? The greater part of his life (sixty years and more) had been spent amidst the laxity of the theology and discipline of the East, and so his mind was "prejudiced in favour of the relaxations to which he had been accu~tomed".~T he effect of these long years was dreaded by Pope Vitalian himself, who really sent "Adrian the Abbot, the first of those two "'Si oujus uxor fornioata fuorit, lioet dimittere eam et aliam aooipsre; hoe est, si vir dimiserit uxorem suam proptsr fornica-tionem, si prima fuerit, licitum est ut aliam aooipiat uxorem; illa vero, si voluerit pcnitere peooata, sua, post V annos alium virum scoipiat"-"Poenitential," Bk. 11, o. 12, 55, Haddan and Stubbs, Vol. 111, p. 199. 2Plummer's " Bede," Tom. I, pp. 157-8. 3 Luokook, p. 196.
  • 123. 118 DIVORCE AND RE-MARRIAGE that refused the archbishopric, as a spy upon Theodore, lest he should introduce any of the Greek rites in England "? But the chief point to be noticed is the failure to make his views felt upon the Anglican Church : for although president of the Council of Hertford, that Council decided diametrically opposite to his opinions. A.D. 690-693. JUDICIUCLMEM ENTIS. Willibrord, at his consecration by Pope Sergius, was given the name Clement. He was a Northum-brian, born in A.D. 657 or 658, and from his earliest days was entrusted to the care of the monks of Ripon. In his twentieth year he went to Ireland, where he remained twelve years with Egbert and Wigbert. In A.D. 690 he set out for the continent, landing at the mouth of the Rhine and proceeding thence to Tra-jectum (Utrecht). Finding Radbod and his Friscians wholly heathen, he retired to Pippin. . . . Willibrord went twice to Rome, once to obtain the papal sanc-tion to his mission-probably in A.D. 692 ; the second time to receive consecration at the hand of the Pope in A.D. 695. . . . According to Alcuin he was eighty-one whcn he died, which tool< place either in A.D. 738 or 739.2 The " Judicium Clementis" " is a fragment of con-siderableinterest as illustrating the Penitential system and literature of the Anglo-Saxons. . . . Kunstmann identifies the writer with the Anglo-Saxon Clement, that is, Willibrord: but Wassenechleben seems to 1 Johnson's 'l English Cmons," Yol. I, pp. 86-7. 2 Gathered from Plummer's " Bede," Tom 11, p. 288 spp.
  • 124. THE ANGLICAN CHURCH 119 doubt this."' In § 14, we find "if any man dis-misses his lawful wife and takes another, let him be excommunicated by Christians, even if that former wife consent ".2 The contrast' between the Peni-tential of the Eastern Theodore with that of the Anglican Clement is obvious: although they both agreed in some measure in reference to a wife, carried off by ene~iesa,n~d hope of return had been given up. The difficulties the Church had to contend with during this period came out in the letter of Arch-bishop Boniface, to Ethelbald, King of Mercia (A.D. 716-757). Written in A.D. 745 or 746, it gives a sad picture : the king was not lawfully married: it was reported that he existed in lust and the wickedness of adultery and worse still; so Boniface was sad.4 A.D. 732 AND 766. THE DIALOGUEO F ECGBRIHT, ARCHBISHOOPP YORK. "All authorities seem to agree that Ecgbriht was consecrated Archbishop of York in 734 and that he received the pall in 735," and exercised the authority of a metropolitan for about thirty years together. [Therefore from this time forward the liingdom of Northumberland is to be esteemed a distinct province 1 Hsddan and Stubbs' "Councils," do., Vol. 111, p. 226. '"Si quis uxorom legitimum dimittit st &li,liam duoit, exoam-municetur a Ohristianis, etiamsi illa prior uxor consontiat," Hnddsn and Stubbs, Vol. 111, p. 227. J Cf. Theodore's " Penitential," $5 22-4 and " Judioium Clementis," g 19. Wf. the Rt. Rev. Dr. Browne's 'lBanif&ce," pp. 241-4. Tlummer's "Bede," Tom. 11, p. 378.
  • 125. zao DIVORCE AND RE-MARRIAGE from that of Canterbury.'] He was the brother of Eadbert, king of Northumbria, both being sons of Eata, a descendant of Ida. "While still an infant he was placed in a monastery by his father. At a later time he went to Rome with, a third brother, Egred, who died there. He himself was ordained deacon at Rome and returned to Britain, where he was made Bishop of York by Ceolwulf." a Alcuin, one of the greatest men in the next age, calls him his master, and desires Charles the Great, then Emperor, to send young men to York to tran-scribe the manuscripts left there by him. It cannot with any certainty be seid what was the occasion of his writing and publishing the following dialogue: what seems most probable is, that some one or more bishops had drawn up the questions, with a design to propose timm to a, provincial synod, or rather to a national one, as one would think by the last question. These were put into Ecgbriht's hands, to the end that he might procure a public authoritative answer to them, in council assembled for this purpose, but he either not being able to obtain a council, or thinking it to little purpose to ask the advice of other bishops, in points which they so little under~toodr,e~s olves to answer them himself, and returned the answers, with the questions prefixed, to the hands from which he had received the inquirie~.~ "XIII. Qt~estion.-If a lawful marriage be dissolved 'Johnson's "English Csnons," Vol. I, p. 159. Plummer's "Bede," Tam. 11, pp. 378-9. a"All orders of men were scandalously illiterate," Johnson, Val. I, p. 159. *Johnson, Vol. I, pp. 159-60.
  • 126. THE ANGLICAN CHURCH 121 by consent of both parties, on account of the im-potency of the man or woman, is it lawful for the sound party (being incontinent) to marry, the im-potent party giving consent, and promising to live in perpetual continency ? What does your sanctity judge of this case? "Anstuer.-No one acts against the Gospel or the Apostle without punishment, therefore we give no consent to adultery (or adulterers). Yet we lay burdens on no man, which cannot be borne without danger, but confidently enjoin the commandrnent of God; but we reserve him unpunished for the just judgment of God, whose infirmity hinders him from fulfilling [them]. Therefore lest we should seem to connive at adulterers, or that the devil, who deceives adulterers, should rejoice at adultery, hear further, 'that which God hath joined, let no man separate'; and also, 'he that is able to receive it, let him re-ceive it,' for necessity often breaks a law, by reason of the change of times; for what did David do when he was hungry? and yet he was without sin; therc-fore sentence is not to be given in doubtful points. But there is a necessity of risking counsels for the salvation of others ; upon this express condition, that it be by no means allowed to one that hath vowed continency, to contract a second marriage, the former (wife or husband) living." . . . [The reader is to observe that the impotence here spoken of, is such as is not natural, but accidental, proceeding from some present bodily disease, and from which the party might afterwards recover.] ' 'Johnson, Yol. I, pp. 170-1.
  • 127. 122 DIVORCE AND RE-MARRIAGE " XIII. Interrogati0.-Quod si ex convenientia am-borum legitimum dissolvitur conjugium, propter infirmitatem viri vel uxoris, si liceat sans incontinenti secundum inire connubium, infirm0 consensum prae-bente, et promittente sese continentiam in perpetuo servaturum : Vestre sanctitas quid de hoc judicat ? " Responsio.-Nemo contra Evangelicum, nemo con-tra apostolum sine vindicta facit, idcirco consensum minime praebemus adulteris ; onera tamen, quae sine periculo portari non possunt, nemini inponi~nus ea vero, quae Dei sunt mandata, confidenter indicimus. Quem autem infirmitas implendi praepedit, uuo pro-fecto multum reservamus judicio Dei. Igitur ne forte videamus silentio fovere adulteros, aut diabolus qui decipit adulteros de adulteris exultet, ulterius audi ' Quod Deus conjunxit, homo nou separet '. Et item: ' Qui potest capere, capiat '. Saepe namque tem-porum permutatione, necessitas legem frangit. Quid enimfecit David, quando esuriit? et tamen sine pec-cat0 est. Ergo in ambiguis non est ferenda sen-tentia. Sed consilia necesse est periclitari pro salute aliorum hac conditione interposita, ut ei qui se contiuentiae devovit, nullo mod0 concedatur secundas iuire nuptias, vivente priore." Ecgbriht is clear that remarriage is against the divine law, but in this exceptional case, which had been previously allowed by Theodore and Gregory 11, he decides "we reserve him unpunished for the just judgment of God whose infirmity hinders him from fulfilling His commands ". I t will not be necessary to deal with the so-called 'Hsrddan and Stubbs, Vol. 111, p. 409.
  • 128. THE ANGLICAN CHURCH 123 Excerpts of Ecgbriht for the reason " as they stand, they are not his. There is nothing original in them ; and certainly not sufficient evidence to make it prob-able that they are even based upon anything which he compiled ".I c. A.n. 950. LAWSO F THE NORTHUMBRIAPNR IESTS. Johnson states : " A.D. DCCCCL, or thereabouts, I conceive these following laws were made, whoever attentively reads them must he sensible, that they were enacted by a temporal, as well as ecclesiastical authority. The reason why the name of the king in whose reign they were made is not prefixed to them is, that he was probably a Dane ; therefore the transcribers in the following ages of King Edgar and his successors, thought fit to leave out the preface, lest the name of the king should seem a blemish to the laws themselves. Anlaf was sole monarch of the Northumbrians from the year 949 to 952 ; and dur-ing this interval of time I conceive these laws were made." Johnson goes on to combat Spelinan's date A.D. 997 as the date of writing.3 Wilkins follows S~elman.~ These laws enacted : "35. If a priest dismiss one wife and take another, let him be anathema." " 54. If any man dismiss his lawful wife and [while she is] living, marry another, let him want God's mercy, unless he make satisfaction for it ; but let every one retain his lawful wife so long as she lives, unless they 'For full disoussion see Haddan and Stubbs, Val. 111, p. 415. " English Canons," Vol. I, p. 371. 'Of. Spelman, Vol. I, p. 502, note. Val. I, pp. 221-2, note.
  • 129. 124 DIVORCE AND RE-MARRIAGE both choose to be separated by the bishop's consent, and are willing to preserve chastity for the future." ' THE VENERABLEB ED% At the commencement of the eighth century the Venerable Bede commented on Markx. thus : "There-fore is there only one carnal cause, fornication : one spiritual cause, the fear of God for which a wife may be dismissed. But there is no cause prescribed by the law of God that another wife may be taken, while she is alive who has been abandoned." " Una ergo sol~~m-mod0 cansa est carnalis, fornicatio: una spiritelis, timor Dei, ut uxor dimittatur, sicut multi religionis causa fecisse leguntur. Nulla auteni est Dei lege prescripta,ut vivente ea quae relicta est, alia ducat~r."~ c. A.D. 963. ARCHBISHODP UNSTAN'(S? ) PENITENTIAL. Johnson states 1 " I should think it was Dunstan that compiled them, and that this set of canons might be called Archbishop Dunstan's Penitential; and therefore I date them as made in the second year of his presidency, viz. A.D. 963." " 27. He that relinquisheth his wife and taketh another woman breaketh wedlock. Let none of those rights which belong to Christians be allowed him, either during life, or at his death, nor let him be buried with Christian men : and let the same be done to a [delinquent] wife ; and let the kindred that were present at the contract suffer the same doom, Johnson, Vol. I, pp. 377 and 331. a Mings's ed., Tom. 111, p. 329. J " English Ct~nons,"V al. I, p. 426.
  • 130. THE ANGLICAN CHURCH 125 except that they will be first converted, and earnestly make satisfaction."-Johnson, Vol I, p. 434. A.D. 1009. THE COUNCIL OF EANHAM. Johnson' in his preface, states: "This year, or however, between the year 1006 and 1013, which includes the whole time of St. Alfeage's presidency in the see of Canterbury, a council was called at Bnham (probably now Ensham in Oxfordshire) at the command of King Ethelred, and by the advice of both the Archbishops of Canterbury and York. I t was therefore a national assembly, and the great men of the laity were present, as well as the bishops and abbots. And though most of the laws are ecclesiastical, yet some are purely secular. The old Latin copy is far from being a translation. I t rather seems to me to be an account which some one there present did write down by strength of his memory; which afterwards falling into the hands of some Archbishop of YorB was transcribed by him, or at his command, with two paragraphs added at the end. " 8. And never let it be that a, Christian marry . . . one that is divorced. Nor let him who desires to observe God's law aright, and to guard himself against hell-fire, have more wives than one ; but con-tinue with her only so long as she lives." = A.D. 1017. KINGC NUTE'SL AWES CCLESIASTICAL. "A.D. MXXII. . . . This year Cnute king of Den-mark became king of England, and reigned till A.D. ' " English Canons," Vol. I, p. 480. a Johnson, Yol. I, p. 485.
  • 131. 126 DIVORCE AND RE-MARRIAGE 1036 ; within this space of time the following laws were made, but in what particular year is not known. "This is the provision which Cnute, king of all England, and of the Danes and Norwegians, made with consent of his wise men to the praise of God and his own royal dignity, and the benefit of the people, at the holy midwinter-tide at Winchester :- ' " 7. ' We enjoin, and charge, and command in God's name, that no Christian man do ever take to wife . . . a divorced woman. . . . Let no man have more than one wife, and let her be a wedded wife, and let him remain with her only, so long as she lives, if he will rightly observe God's will, and secure his soul against hell flames.' " So we have the historical evidence of how ihe Anglo-Saxon Church met the conditions of life and its difficulties and witnessed to the indissolubility of Christian marriage according to the teaching of her Master. " Thus the indissolubility was unswervingly accepted by the English Church under sanction of the temporal power."-Howard, Vol. 11, p. 41. Note.-" The Church of Wales ". See note in Howard's " History of Matrimonial Institutions "- based on Haddan and Stubbs' "Councils," Vol. I, 246-51-where it is stated : "The ecclesiastical laws of Howell the Good of Wales (A.D. 928) show more clearly, perhaps, than is done anywhere else, the way in which the Church was often constrained to put up with barbarian custom ".-Howard, Vol. 11, p. 41. Johnson, Vol. I, p. 501. said. p. 506.
  • 132. CI-TAPTER XI. FROM THE NORMAN CONQUEST. DURINGth~is period there were no further ecclesiasti-cal laws made upon the subject under review. "With the Norman Conquest came the traditions of the Norman Church and the continental system of Canon law. The century following the Norman Conquest saw the codification of the Canon law by Gratian (A.D. 1139), and the law school founded by Vacarius at Oxford, about A.D. 1138, would not be slow in commending the " Decretum " of Gratian to the English Church " ' " During this period the term ' divorce ' came to be used in two senses, neither of which correspond with its ancient and proper meaning as a complete dissolu-tion of the bond of true wedlock. First, the term A-vo~ tiuma vi?aoulo matrimonii is commonly employed to designate, not the dissolution of a lawful union, but the judicial declaration of nullity of a spurious marriage which, on account of some impediment, is void, or at least voidable, from the beginning. Secondly, the term diuortiuna a mensa et thoro means a judicial separation of husband and wife which does not touch the marriage tie. In each case, therefore, the use of Watson, pp. 425-6. 127
  • 133. 128 DIVORCE AND RE-MARRIAGE the word 'divorce ' is loose and very misleading."- Howard, Vol. 11, p. 63. It was a period of great moral depravity in the Church and world. The picture traced by Leckyl is a very dark one, brightened here and there by the many good and great men which the Middle Ages produced even in their darkest periods. This licentiousness comes out clearly in reference to divorce and re-marriage: and dispensations-based upon some fictitious plea according to which the marriage was null and void ab imitio-were ob-tained from the Pope, e.g. :- King John had married Hadwisa, daughter of William, Earl of Gloucester, and lived with her with-out any scruple on the score of consanguinity, but being captivated by the personal beauty of Isabella of Anjouleme, he resolved to shelter himself under the plea of nearness of kin to obtain a divorce. The evil was aggravated by the fact that his second wife was already betrothed: but these were days when kings claimed to be a law to themselves, and a dispensation was readily granted for his adulterous union. His example was followed not long after, in the reign of Henry 111, by Simon de Montfort, who appealed to Rome to obtain a ratification for a second marriage, while his lawful wife was still living. . . . The dispensation was granted2 There is one remarlrable case in the reign of Edward I which occupied the attention of Parlia- 1 " History of European Morals,'' Vol. 11, pp. 328-35. SQuoted by Luokook from Morgan, "On the Laws of Mamiage," Ir. 218. Jebb's Essay, 204.
  • 134. PROM THE NORMAN CONQUEST 129 ment in frequent debates, but no sanction was given to the plea that adultery dissolved the bond.' A.D. 1225 (or 7)-1274. ST. THOMASA QUINAS St. Thomas Aqninas gave it as his opinion that " since adultery supervening on matrimony, is unable to effect but that, indeed, the matrimonial bond always remains, it is not for the one, while the other survives, to pass, by reason of the adultery, to other nuptials ".2 "The perpetuity of the tie was witnessed to all through this period by the maintenance of a wife's right to her dower after separation for infidelity to her husband." A serious attempt was made in the reign of Henry TI11 to alter the character of marriage by a Com-mission, the purpose of which was "to order and compile such laws ecclesiastical as should be thought convenient ". Hitherto, in theory, whatever was the practice of Rome, the Church held to the indissolu-bility of marriage. To consider " The Reformation of the Ecclesiastical Laws, as attempted in the reigns of King Henry VIII, King Edward VI and Queen Elizabeth," out of which so muoh capital has been and is being made against the formularies of the Church of England. 1 Seldon, " Uxor Hob." xxx. " Gonclusro-Cum sdulterium, mstuimonio supervenions, effioere non passit quin vsro sernper remanoat oonjugium, non lioet uni-altero supsrstite, rations sdulterii, ed alias nuptiss trsnsire " (" Summa, Theologia," Quiest. LXII. Act. 7.). 3Luokook2s "History of Marriage," p. 2OG. 9
  • 135. 130 DIVORCE AND RE-MARRIAGE Its origin is thus given in the Divorce Commission (1850), First report, p. 4: " The Reformers were about to revise the whole body of Canon Law, which had become unsuitable to a Protestant country, they did not omit the matrimonial code. With this view Acts (25 Hen. VIII, c. 19, § 2 ; 27 Hen. VIII, c. 15; 35 Hen. VIII, c. 13 ; 3 and 4 Ed. VI, c. 11) providing that the Crown should have full power to nominate Commissioners (sixteen ecclesiastics-of whom four were to be bishops, and sixteen laymen, of whom four were to be lawyers) to order and compile such laws ecclesiastical as should be thought convenient. A work was accordingly composed for this purpose by Cranmer. . . . This work, having never received the Royal confirmation, is not indeed law, etc." Dr. Cardwell ' states : " An Act had been passed in the year 1549, empowering the king by the advice of his council to appoint thirty-two persons 'to compile such ecclesiastical laws as should be thought by him, his council and them convenient to be practised in all the spiritual courts of the realm '. Agreeable with the provisions of three similar statutes of King Henry VIII, the new code of laws was to take effect under the great seal, hut the powers conveyed by the Act were limited to the period of three years. Two years (during which Cranmer was collecting his materials) having elapsed without any appointment of commissioners, and the number being deemed in-conveniently great, a royal commission was issued in November, 1551, intrusting the prosecution of the work to the Archbishop (Cranmer), Peter Martyr and 1 In his oditian publisl~ed by the Oxford Ulriversity Press in 1850.
  • 136. FROM THE NORMAN CONQUEST 131 six others, all of them to he members of the greater commission. We may infer that from some changes made in the commissioners, and still more from the evidence afforded by our manuscripts, that the Arch-bishop and Martyr took the whole responsibility upon themselves, employing Dr. Haddon to see that their sentiments were expressed in proper language. "It would appear then that they were engaged in this work during the year 1552, and that our manu-scripts may he considered as the result of their labours during that period." Dr. Cardwell continues : "In this Parliament [anno 1571, Eliz. 131 was the last effort, I think, made to bring into practice in this realm, by authority of Parliament, a body of ecclesiastical and civil laws. . . . Care was taken to have it printed against the sitting of the Parliament. . . . But instead of review-ing and furthering the establishment of this excellent and elaborate book, the Parliament fell rather upon the examining other matters of religion already established." "But all that good pains [including the large preface written by John Fox] is lost and fallen to the ground." 1 Foxe had been entrusted with the manuscript of Archbishop Parker in order that it might be printed for use in Parliament. I t was "in the same year when the XXXIX articles of Religion were finally subscribed by convocation and ratified by Parliament ". It contained the whole code as revised and approved by Archbishop Parker ; but this manu-script is not lrnown now to he in existence. The matter made no progress: for "the Queen, 'Cf. Stryps, Parker, Vol. 11, p. 62, ed. Ox. 1821. 9 *
  • 137. 132 DIVORCE AND RE-MARRIAGE averse to all interference of the Commons in ecclesi-astical matters, had conceived an especial displeasure against the ind~viduals by whom the measure was recommended; and these individuals too might find on an examination of the hooli itself sufficient reasons for delaying the consideration of it to a future period. There is no notice of it in the Journals of either house ; and so little does the Queen1 appear either to have approved the book, or to have been in favour of the general measure, that no attempt was ap-parently made during her reign to revive the Act of 1549." 2 This Reformatio Legum Ecclesiasticarum proposed-- " Cap. 5. Integra persona transit ad mowas nzcptias. Curn alter conjunx adulterii damnatus est, alteri lice-bit innocenti uovum ad matrimonium (si volet) pro-gredi. Nec enim usque adeo debet integra persona crimine al~eno premi, coelibatus ut invite posset oh-trudi. Qua propter integra persona non habebitur adultera, si novo se matrimonio devinxerit, quoniam ipse causam adulterii Christus excepit." The innocent party is to be free to contract a new marriage. '. Cap. 6.-Reconciliationem esse Optandam. Quoniam in matrimonio summa conjunctio rernm omnium est, et tantus amor quantus potest maximus cogitari, ve- 1 The s~eeohli n the House of Commansl in whioh Mr. Striokland [both eminent debaters] assented: and the preftlce by whioh Foxe seeks to rcoomlnend the book cells for further reformation in the Book of Common Prayer. *'' O&l.dwell,",p. 12.
  • 138. FROM THE NORMAN OONQUEST 133 hementer optamus ut integra persona damnatae veniam indulgeat, et illam ad se rursus assumat si credibilis melioris vitae spes ostendatur. Quam animi mansuetudinem licet nullae possint externae leges praecipere, tamen Christiana Charitas saepe nos ad eam adducere polest. Quod si damnata persona non possit ad superiorem conditionem admitti, nullum illi novum matrimonium conceditur." But it is much to be desired that the innocent person grant forgiveness to the guilty and take her back again to himself if a reasonable hope of a better life may be shown. Having got rid of the doctrine that marriage was a sacrament, "retaining the idea of it being a Divine institution in its general origin," it seemed easy for these "Reformers " to go on and make the marriage bond simply a question of the will of the innocent party. Cap. 7. Defines the time for the innocent party to make up his mind : " omnino volumus anui spatio vel sex mensibus definiri-a year in all or six months ". Cap. 8. Assigns desertion-in spite of all exhorta-tions- as giving the right of re-marriage at the hands of an ecclesiastical judge while the deserter "is to be perpetually imprisoned-perpetuae carceris custodiae dedatur". If the deserter is unable to be found within two or three years a re-marriage is granted to the deserted one. Cap. 9. Grants divorce and power of re-marriage on account of the too long absence of the consort, i.e. two or three years. Cap. 10 asserts that "capital " enmity-with danger
  • 139. 134 DIVORCE AND RE-MARRIAGE to life through plots,poisons or open or hidden violence -as a ground of divorce " Cum igitur una non possint esse, juxta Pauli doctrina~n matrimoninm dissolvi par est ". Cap. 11 grants divorce if a husband is bitter against his wife and will not be reconciled-"si vir in ux-orem saevit, et acerbitatem in ea nimiam factorurn et verborum expromat "-in spite of the warnings of the ecclesiastical judge. To summarize : " By these articles, when the hus-band or wife had committed adultery, a divorce was allowed, and the unoffending party might marry again (cap. 35). But if both were guilty, since both must fall under the same condemnation, the first marriage was not to be dissolved (cap. 17). Absolute desertion (cap. 8), protracted absence (cep. 9), mortal enmities (cap. lo), and lasting cruelty (cap. ll), were all ad-judged to be lawful grounds of divorce. But recon-ciliation was inculcated wherever it could be obtained (cap. 6), and separations from bed and board were en-tirely abolished (cap. 19). It was, moreover, recom-mended that adultery should be punished by perpetual imprisonment, or transportat,ion for life (cap. 3, 4), and if the offender were the husband, he was to re-turn to the wife her fortune, and add to it one half of his own : or if the wife, she was to forfeit her jointure, and all other advantages which by law, custom, settlement, or promise, etc., she might otherwise de-rive from her marriage (cap. 3, 4)." It has been said that this "Reformatio Legum Ecclesiasticarum represented in a short compass the 'Page 4 of Report of Divoros Commission, 1850.
  • 140. FROM THE NORMAN CONQUEST 135 opinions of our first Reformers on matters which affect the civil rights of all men, as well as the highest of all the moral interests of society." 1 Sir John Stoddart said : "The Reformatio Legum would have been in all probability, if King Edward VI had lived, the law of England. But although it was not the law of the land it was the recognized opinion and senliment of the English Church at that time". . . . ("Minutes of Evidence taken before the Select Committee in 1844 of the Rouse of Lords upon the Bill for the better administration of justice in the Judicial Committee of the Privy Council ".) What are the facts? The book was the work of Cranmer aided by Peter Martyr who, with Martin Bucer, "were strong ad-vocates for greater freedom of divorce, and they were the most important foreigners in England "."It is well appreciated that this advocacy was the outcome of their dislike of Papal dispensations and the teach-ing of the sacramental nature of marriage ; but the theories in reference to marriage of these continental reformers3 were not adopted by the Church of Eng- 'Psgs 4 of Report of Divorce Oommission 1850. Z"Luckock," p. 208. 3 Martin Luther allowed many causes of divorce, and went so far as to write "that a man may send away a. proud Vashti and marry an Esther in her stead : also in his letter to the Landgrave he advised self-restraint, failing which he actually permitted bigamy. Erssmus maintained that the words of Ohrist comprehend msny other causes of divorceunder the name ai forniostion. Buoer wrote his treatise on the Dootrine and Disoipiins of Divorce in England and dedioated it to Edward YI. Peter Martyr advocated divorce not only for desertion but for the seduoement ~nsdos ndslous de-meanour of an heretical consort. Beea allows divorQe for danger of
  • 141. 136 DIVORCE AND RE-MARRIAGE land, although shared by a few prominent Churchmen. The date of Henry VIII's commission is A.D. 1549, the date of the refusal of Parliament to deal with the Reformatio Legum Ecclesiasticarum is A.D. 1571. The question then arises what documents about that period can be produced to show the "Mind of the Church of England " ? The Statute of Provisors, consequent upon the rup-ture with the Pope, declaring Henry VIII supreme head of the Church, was passed in 1531. I' The Act of Submissiou in 1533 arranged that no Canons should have any legal force unless (1) agreed to by the Convocations meeting under Royal Licence, and (2) assented to and 'published ' by the Crown. The principle has been extended to the formularies which did not take the shape of Canons, such as the Thirty-nine Articles, the Book of Common Prayer' and the still earlier but little known volumes entitled the ' Institutions,' and the ' Necessary Doctrine and Erudi-tion of a Christian Man'. Formularies so issued are the real standards of Doctrine in the Reformed Church of England," will be evidence of the existing opinions of the Church of England. " The Institution of a Christian Man" about 1543-4, "was compiled by a Royal Commission consisting of all the English Bishops (twenty-one in number), eight Archdeacons, and seventeen other Doctors of Divinity life from sun heretic, or importunate soiioit&tian to do aught against reiigion." Bohn's "Milton's Prose Works;' Val. 111, pp. 425-9. 1 The Prayer Book is elso incorporated in sn Act of Parliament, the " Aot of Uniformity," 14 Carol. 11, osp. 4. 2'<TheDootrine of the Ohuroh of England," published by Rhing. ton, 1868.
  • 142. PROM THE NORMAN CONQUES'P 137 or of Law (regius professors and others) ; most of those concerned in the subsequent compilation of the Prayer Book being of the number.' These were all members of Convocation, and all (without exception) subscribed their names to the book as its authors: but from the traditions which connect it still more closely with the Convocations, probably it was after-wards subscribed by the whole body in each province . . . . and there has not been such a comprehensive consensus of opinion gathered together in any time since then in the Church of England. It was trans-lated into Latin and sent to the Diet of Spires by the king in 1543-4, as a true statement of the religion of the Church of England, but no copy of the translation is known to exist."* "The Institution of a Christian Man" teaches "the bond of lawful marriage is of such sort, that it cannot be dissolved or broken, but by death only" (Riving-ton, p. 197). "The necessary Doctrine and Erudition for any Christian Man " is "the Institution revised and cast in a less devotional form, with some additions and some omissions ". I t will be then a confirmation of the teaching of the Church of England at that time. The history of the book has been confused with that of the ' Institutions ' by almost every historian; and we know little more about it than that the Convocation of Canterbury prepared it, and that the Crown pub- 'The disosrding of some doctrines and the retontion of others in the Prayer Book, should be carefully considered in ondewouring to arrive at the "mind oi the Church ". =Rivington, pp. 13-14.
  • 143. 138 DIVORCE AND RE-MARRIAGE lished it in 1543. Some portions of it are framed in more exact language than that of the ' Institutions,' but the theology of the two books is substantially identical. Probably it was prepared partly for the purpose of making foreigners acquainted with the principles of the Church of England. . . . There can be no doubt that the 'Erudition ' was intended to be substantially the same book as the ' Institutions,' notwithstanding these changes." 1 The "Erudition" like the "Institutions," after deal-ing with marriages null and void ub initio teaches : "Notwithstanding in marriages lawfully made, and according to the ordinance of matrimony prescribed by God and the laws of every realm, the bond thereof cannot be dissolved during the time of the parties be-tween whom such matrimony is made"? " The Book of Common Prayer " was in the course of preparation frorn 1542 to 1548 a,nd was published in the early part of 1549. It was prepared by a Committee of Convocation appoirited in the former year, but whose labours were not permitted to see light during Henry VIII's reign. On his death the Committee was reappointed, and eventually pre-sented their work to Convocation at the end of November, 1548. Convocation sent it to the King in Council, by whom it was laid before Parliament, which incorporated it in the Act of Uniformity. Some changes and additions, but not affecting the subject under Convocation, were rnade in 1552, and again in 1559 ""2nd year of Queen Elizabeth's reign) after being in abeyance during Queen Mary's reign. 'Rivington, p. 14. 2Ibid. p. 201. 8 Ibid. p. 15.
  • 144. FROM THE NORMAN CONQUEST 139 In "The Book of Common Prayer" as issued in the year 1549, in the reign of Xing Edward VI, the doctrine of the Church of England was given in the following portions of the " Forme of Solem-nizacion of matrimonie " :- " . . . Then shall the curate say unto the maa. "N. Wilte thou haue this woman to thy wedded wife, to liue together after Goddes ordeinance in the holy estate of matrimonie : wilt thou loue her, coum-forte her, honor and kepe her, in sickenesse and in health : and forsaliing all other kepe thee only to her, so long as you both shall liue. " The man shall anszuere. " I will. " Then shall the prieste sage to the rooman. " N. Wilt thou have this man to thy wedded house-band, to liue together after Goddes ordeinaunce, in the holy estate of matrimonie: wilt thou obey him, in sickness and in health: and forsaliing a1 other kepe thee onely to him, so long as you hothe shall liue. " Z'he zuoman shall answere. "I will. "And the mimister receiving the ruoman at her father or friendes handes : shall carrse the man to talce the woma?z by the ~ight hande, and so either to geue their trouth to the other : The man first saying. " I N. take thee N. to my wedded wife, to haue and to holde from this day forwarde, for better, for worse, for richer, for poorer, in sickeness, in health, to loue, and to cherishe, ti1 death us departe; according to
  • 145. 140 DIVORCE AND RE-MARRIAGE Goddes holy ordeinaunce: and thereto I plight thee my trouth. "Then shall they looce theyr handas and the woman taking again the man, by the right hand shall say. "I N. take thee N. to my wedded husbande, to haue and to holde from this day forwarde, for better, for worse, for richer, for poorer, in sickeness and in health, to loue, to cherishe, and to obey, till death us departe : accordyng to Goddes holy ordeinaunce : and thereto I geue thee my trouth. " Then shal theprieste joyne theyr ryght kandes toyethm and say. "Those whome God hath joyned together; let no man put a sundre. (In the final Prayer). "0 God whiche by thy myghtye power haste made all things of naughte, whiche also after other thinges set in order didde appoint that out of man (created after thine own image and similitude) womZ should take her beginning: and knitting them together diddest teache, that it should never be lawful to put a sondre those, whoine thou by ~natrimonieh sddeste made one:" eta. Such then was the teaching and practice of the Church of England during the period under considera-tion, and so the statements on p. 4 of the divorce commission of 1850 are not historically accurate. It will be convenient to finish here the evidence of the Prayer Book as to the continuity of the teaching of the Church of England as to the indissolubility of marriage.
  • 146. FROM THE NORMAN CONQUEST 141 "A complete review and revision took place at the time of the Restoration (but no alterations were made dealing with our subject)' which resulted in the present Prayer Booli, 1662. Each revision was ef-fected by the two Cot~vocations of Canterbury and York, acting under special authority from the Crown ; and the book (our present one) so revised, was sanctioned by the fullest possible authority which the State could give to it through the action of Crown and Parliament. The only alterations in the portions of the marriage service, copied above from the first Prayer Book of ~dwardV I, down to this revision, were "till death us depart " becomes "do part " and " 0 God, which " becomes " who ". So then the authoritative teaching and practice of the Church of England was altogether against the claim made that the Ileformatio Legum Ecclesiasti-carum "was the recognized opinion and sentiment of the Church of England at that time ". Note. The Roman Church considered the question of marriage at the Council of Trent (Tyrol), which was opened on 13 December, 1545. At the twenty-fourth session (opened on 11 November, 1563) a decree was passed dealing with matrimony, couched in ten chapters and eleven Canons. Two hundred and fifty-five signatures were attached to the decrees : and also those of the ambassadors still remaining at Trent. The bull of confirmation was issued at Rome on 26 1 During the Gommanweslth, the Protectorate and the Restored Cammonme&lth, Ohurch Life, teaching and praotioo, went on quietly and regulsrlg in many places. Of. "Poor Book of Westbury on Trym,"i165G-1698 by Wilhins, pub. Arrowsmith.
  • 147. 142 DIVORCE AND RE-MARRIAGE January, 1564, and followed by another fixing 1 May, 1564, as the date from which the decrees should be held binding. Canon 7 (cf. Sess. xxiv.) runs: " If any one shall say that the Church errs, when it taught and teaches according to the Evangelical and Apostolical doctrine that the bond of matrimony cannot be dissolved on account of the adultery of either of the spouses : and that both, or even the innocent, who has not given cause by adultery, cannot, so long as the other partner is alive, contract another marriage ; and that he commits adultery who, his wife having been dis-missed, has married another, and that she, who, her adulterous husband having been dismissed, has mar-ried another ; let such an one be accursed (anathema) ". " Si quis dixerit, ecclesiam errore, quum docuit et docet juxta evangelicam et apostolicam doctrinam ' propter adulterium alterius conjugum matrimonii vinculum non posse dissolvi ; et utrumque, vel etiam innocen-tem, qui causam adulterio non dedit, non posse altero conjuge vivente aliud matrimonium contrahere ; moe-charique enm, qui dimissa adultera aliam duxerit, et eam, quae dimisso adultero alii nupserit, anathema sit ". A.D. 1603. THE CANONS OF THE CHURCH OF ENGLAND. " Constitutions and Canons Ecclesiastical, treated upon by the Bishop of London, President of the Matt. xrx. 9; Luc. xvr. 18; 1 Car. vrr. 11 ; cf. e. gr. o. 5 (cono. Milev.), o. 6 (August), o. 7 (Hieron.), o. 8 (Cono. Elib.), o. 10 (Aug.), c. 32, q. 7.
  • 148. FROM THE NORMAN CONQUICST 143 Convocation for the Province of Canterbury, and the rest of the bishops and clergy of the said Province ; and agreed npon with the King's Majesty's Licence, in their Synod began at London, Anno Domini 1603, and in the year of the reign of our Sovereign Lord James, by the grace of God, King of England, France and Ireland, the First, and of Scotland the Thirty-seventh; and now published for the due observation of them, by His Majesty's authority, under the Great Seal of England " (S.P.C.K. edition, p. 3). These canons were adopted in 1606, after full synodical deliberation upon them by the Convocation of York.' They were amended in 1865. The directions in reference to divorce and re-marriage continued the same throughout. These Canons are binding proprio aigore on the clergy but not on the laity. Canon 105 directs that "No sentence for divorce to be given npon the sole confession of the parties ". Canon 106 directs that " No sentence for divorce be given but in open court ". Canon 107. " In all sentences pronounced only for divorce and separation a thoro et mema, there shall be a caution and restraint insisted in the act of the said sentence. That the parties so separated shall live chastely and continently; neither shall they, during each other's life, contract matrimony with any other person. And, for the better observation of this clause, the said sentence of divorce shall not be pronounced until the party or parties requiring the same have Rivington, p. 15.
  • 149. 144 DIT70RCE AND RE-MARRIAGE given good and sufficient caution and security into the court, that they will not any way break or transgress the said restraint or prohibition." Thus stand to-day the authoritative teaching of the Church of England and her Canons; and in this attitude she is at one with the teaching of the Christian Church during the all-important first three centuries and of the Church of England from the earliest times. We shall consider in the next chapter attempts-successful and unsuccessful by means of the State-to override that teaching and those Canons.
  • 150. CHAPTER XII. AFTER THE REFORMATION. WITH the Reformation came the repudiation of the claims of the Roman Church. One immediate effect of this was the tightening of the marriage bond, in a way which had not been previously felt, owing to the corrupt system of dispensations-obtained by various fictions and devices and which were a fruitful source of ecclesiast~cal revenue-which those who would not live answerably to the teaching of Christ, readily availed themselves of, in order to gratify their lusts and passions. Now that dispensations were no longer available, and that divorce, which rescinded the marriage con-tract, was unknown to the ecclesiastical and civil law, it is not surprising that other methods were tried by appealing directly to Parliament. The consequence will be seen from the following cases, which prepared the way for the Divorce Act of 1857. In the reign of Henry VIII, the Marquis of Northampton (Parr) divorced his wife Anne Boucher -a mensa et toro-for adultery, in the ecclesiastical court, the marriage bond remaining intact. A com-mission was appointed to inquire if there was any 145 10
  • 151. 146 DIVORCE AND RE-MARRIAGE Divine prohibition to a second marriage, but Parr would not wait, and so married Elizabeth Brooke, the daughter of Lord Cobham. The report of the com-mission two years afterwards was "that the bond of wedlock being broken by the mere fact of infidelity, the second marriage was lawful". Here and in the subsequent Act of Parliament can be traced the in-fluence of the Reformatio Legum Ecclesiasticarum, although it had no effect on the Church or its courts. In 1551 Parliament decided that the second marriage was "lawful, as by the law of God indeed it was, any decretal, Canon ecclesiastical, law on usuage to the contrary notwithstanding". But this statute was repealed by the private Act 5 and 6 Ed. VI. One Foljambe, who had divorced his wife a mensa et toro and had married again during the lifetime of his divorced wife, was brought before the Star Chamber in the forty-fourth year of the reign of Queen Elizabeth. " Archbishop Bancroft " (an error for Whitgift), "who stated that he had called to him at Lalnbeth the most wise divines and civilians (who all agreed in this) by the advice of divines held that adultery was only a cause of divorce a lnensa et toro." 3 Salk 138.-(Burns' Ecc. Law, Vol. 11, pp. 502-3). The action of Bishop Laud (A.D. 1573-1644) in marrying the Earl of Devonshire, his patron, to a woman divorced for adultery, became a life-long sorrow to him. So when he drew up the Canons of the Church of Scotland in 1635, a prohibition of marriage after divorce was inserted, and so in A.D. 1640, when the Scots triumphantly occupied the
  • 152. AFTER THE REFORMATION 147 northern counties, and sent commissioners to London to negotiate a peace, they called for the punishment of the Archbishop as the great incendiary.' In the case of Luckenor, who had divorced his wife a mansa at taro, after which she still continued to live in adultery, an Act to bastardize the issue of that unlawful connexion was obtained2 to avoid oon-fusio prolis, but it is to be noticed that it did not dis-solve the marriage bond or grant the right of re-marriage to the husband. In 1666 Lord Ross obtained an Act bastardizing the children of his adulterous wife Lady Ann: he then obtained a divorce a mansa et toro from the spiritual court. But as the marriage bond remained intact, heproceeded to obtain a private Act of Parlia-ment which ran for as much as thereis "no probable expectation of posterity to support the family in the male line by the said John Manners, Lord Ross " : it granted him permission to marry again, any children to be legitimate with the capacity of in-heritance. "According to the historians Burnet and Ralph, this bill was passed on political grounds and with a political object ; viz. to form a precedent which would enable Charles I1 lo separate from his wife, by whom he had no children, and to marry a second wife, for the purpose of excluding the Duke of York from the throne." " This bill appears to have excited much discussion ' Of. "Enoy. Brit." Vol. XIV, p. 347. 'Cf. " 13 State Trials," p. 1308. "Divorce Commission," 1850, 1st Report, p. 8. lo *
  • 153. 148 DIVORCE AND RE-MARRIAGE and opposition in its progress through Parliament. The debate on the first reading lasted till ten o'clock at night. Before it was read a second time, thirty-five peers desired leave of the house to enter their dissent if the question were carried in the affirmative. All the Roman Catholic peers were against it and all the prelates " (seventeen in number) excepting Cosens and two others. On the question for the second reading being put, there were for it forty-one members present and fifteen proxies; against it, forty-two members present and six proxies; so that the principle of the measure was very doubtfully sus-tained, and it was ultimately carried by a majority of only eight votes.-See Macqueen's " Practice of the House of Lords," pp. 551-62 ; "Divorce Commission Report," 1850, p. 8. The case of the Countess of Macclesfield' was a flagrant case, and by unscrupulous tactics she pre-vented her husband obtaining a divorce a mensa ct toro in the ecclesiastical courts. As a divorce a nmsa et tor0 was hitherto a necessary preliminary, it was probably the only way left to the Church courts to refuse it, so that further proceedings to break through the indissolubility of the marriage bond could not be initiated, as things then stood. But her case was so outrageous that even though "it was so novel a proceeding to pass a bill of that nature, where there was not a sentence of divorce first obtained in the spiritual court that a protest was entered against it by Lords Halifax and Rochester, the Act was passed. The Duke of Norfolk in A.D. 1700, although he ' &lacqueen's " Praotioe of the Houae oi Lords," p. 574.
  • 154. AFTER THE REFORMATION 149 recovered damages at law against the adulterer Sir John Jermayne, was unable to obtain a divorce a mensa et toyo from the ecclesiastical court. He, how-ever, obtained at last under new circumstances an Act of Parliament, although it had been repeatedly rejected by the House of Lords. Parliament had thus established its claim, in spite of the ecclesiastical courts, to grant divorces a vin-onlo: so in 1701 a Mr. Box, "without any special or peculiar reason" such as existed in the cases quoted above obtained-after proving his case in the Court of the King's Bench, and obtaining a definite sen-tence in the Arches Court of Canterbury-:% divorce a vinculo matrimonii which carried with it as a matter of course the right of re-marnage. "From that time to this (A.D. 1850) the Legisla-ture, in fact, has constituted itself a court for grant-ing divorces a winculo matrimonii." - Cf. " Divorce Commission " (1850), First Report, p. 8. It will be necessary to notice briefly the works and utterances of the three writers of this period- Hammond, Cosin, and Milton-as they were op-posed to the teaching and practice of the Church. It was a time of much sensuality and vice, against which many persons wrote. DR. HAMMOND. The learned Dr. Hammond communicated his " Practical Catechism," which for his private use he had drawn up out of the materials which he had made use of in the instruction of the youth of his parish, Penshurst, to which he had been appointed
  • 155. 150 DIVORCE AND RE-MARRIAGE in A.D. 16331 to his friend Dr. Potter, Provost of Queen's College, Oxf~rd.~A fter much pressure on the part of Potter, Hammond agreed to share the expense of publication, and the book was published in 1644. Therein its learned author bases his argu-ment for divorce and re-marriage upon the exception in the Gospel according to Matthew: he allows after a consideration of Paul's teaching no other ground than fornication to be a lawful cause for divorce, "this liberty being peculiar to the hasband against the wife, and not common to the wife against her husband " (ibid. p. 14). If reasons for this opinion, contrary to the Church's teaching, are sought beyond the acceptance of the exception of Matthew, they may perhaps be found (a) in his attitude, as found in his controversial work, towards the Roraish Church ; (b) in the influence of foreign reformers from which he may never have got quite free, in spite of his independent sludy, for we are told "having taken his degree" (M.A. Oxon.) he presently bought a system of di~inityb,~ut abandon- ' " Life of Dr. Hilmmond," by Dr. Fell, Dean of Christ Church and Lord Bishop of Oxford (in Library of Anglo-Catholic Theology, p. xnai). ZThis Christopher Potter, who suoceeded his uncle, Barnabes Patter, was Provost of Queen's in 1629. Soon after, says Wood, when Dr. Laud became a rising fsvourite in the raga1 court, he, after a. goad deal of seeking, was made his creature, and therefore, by the precise party, he was esteemed sn Arminian. 3% such an absolute authority were the names and writings of some men advanoed by their diligont followers, that not to yield obedience to their ipse dicits, was a crime unpardonable. It is true King James observed the inconvenience, end prescribed a remody, sending instruolions to the universities, bearing date 18 January,
  • 156. AFTER THE REFORMATION 151 ing it for "humane learning," he afterwards studied theology on different lines. Dr. Hammond became a member of the assembly of divines "summoned to meet at Westminster on 1 July 1643. The assembly consisted of one hundred and twenty individuals selected from all the different counties, the principle of selection being a disposition towards the Presbyterian discipline and hostility to the Established Church. Nevertheless there were some few, as Eammond . . . who formed an exception to this "though even these were," says Walker (p. 30), " mostly Calvinistic in point of doctrine " (ibid. p. xxvii). Dr. Hammond may have shared the faults of his day. (c) "The later years of Queen Elizabeth, and the reign of Killg James, and, though in a less degree, that of King Charles, produced a vast multitude of catechisms, written by independent and unauthorized individuals, which for the most part were composed in a very harrow and Calvinistic principle. . . . When Bishop Ely, in his 'Answers anno 1616, wherein it was direotod smongst other things, that young students in divinity should be exhorted to study such books as were most agreeable in doctrine and discipline to the Ohuroh of England; and to bestow their time in the fathors and counoils, schoolmen, histories, and controversies, and not to insist too long upon compendiums and abbreviators, making them the ground of their study. . . . For though I hild a good respect both to the memory of Luthor and the name a£ Calvin, as those whose writings hsd awskened all thoso parts of Europo out of ignorance and superstition under which they suffered; yet I slvays took them to be men, man as obnoxious unto error, as subjeot unto human frailty, snd ss indulgent too to their own opinions as any others whetever" (Heylin's " S~lrnmary of Christian Theology," iMd. pp. xix, xn).
  • 157. 152 DIVORCE AND RE-MARRIAGE to the Articles of Impeachment,' exhibited against him in the year 1641, by the House of Commons, for some alleged crimes and misdemeanours, saith, ' That he did direct that the said catechizing should be according to the catechism of the Church of England only. . . . He considered also, that the sjreat variety of catechisms which every man did i"aformer time thrust out at laispleasure did distract and corrupt the minds of the people more than anything else, sowing in them the8seeds both of error and faction' " (ibid. xxv.). The opinions of Bishop Cosin that "adultery works a dissolution of the marriage " were expressed upon the debate of Lord Ross's case, and it has always been a source of surprise that he, usually so strong a supporter of the teaching of the Church, should have uttered such opinions.' Several reasons have been assigned. Doubtless the importance he attached to the "exception" in the Gospel according to Matthew and his belief that " the words in Mark and Luke are not to be taken abso-lutely, but to be snpplied and understood by his words in Matthew," conduced to that opinion. Mr. Glad-stone, writing to Lord Lyttelton on 9 June, 1857, stated : "It " (Badeley's Considerations, etc.) "appears to me quite unanswerable in its proof that Scripture prohibits all such divorce, nor can I find anything in the arguments of the Greeks, far less of Bishop Cosilz, 'Cosin's Published Works, Vol. IV of " Anglo-Catholic Library," pp. 489-502.
  • 158. AFTER THE REFORMATION 153 whose treatnaeat of the Soriptpture evidence is trumpe~y enough, which at all stands against it "? Bishop Cosin, among other opinions in his writings, ~tated", ~Co ncil. Eliber . . . et Arelateus gives liberty in such cases to marry again ". But compare Can. 9 of the Council of Elvira, p. 65. Also the actual words of the Council of Arles, p. 71 scg. Again "St. Basil, in his Canons approved by a General Council, is for marrying again ". The character of Council of Trullo as a Gemeval Cot~ucil has never been allowed by the Church of England. Again.. . " St. Hierome . . . are for allowance of mar-riage after divorce ". Dr. Pusey states: " St. Jerome Ep. 55 ad Amand., 5 3, thinksit forbidden to the woman by 'om. ~II4., l Cor. ~II3.9 , but in that he mentions as remarkable (Ep. 77, ad Ocean de Morte Fabiolae) that one did penance for it, this (as Bingham observes) does not seem to have been required; himself also calls it " a fault " only ($5 3,4), excuses it on the ground of "necessity," calls the marriage the I' shadow of a miserable marriage ". But see pp. 86 sgq. Again "St. Hilary is for marrying again, as Dr. Fulk saith on St. Matthew v.". What St. Hilary wrote was "nullam aliam causam desinendi a con-jugio praescribens, quam quae virum prostitutae uxoris societate pollueret ". He did not deal with the question of re-marriage. 'Lathbury's " Letters on Church and Reiigion of W. E. Glad-stone," Vol. I. no. 133-4. Vol. IV, p.-4-93. Note 0 on Tertullian, Val. I, "Oxford Library of the Fathers," p. 434.
  • 159. 154 DIVORCE AND RE-MARRIAGE Again St. Ambrose says, " a man may marry again, if he put away an adulterous wife ". But Bishop Cosin had confused an unknown writer, commonly described as Ambroiaster, with St. Ambrose, and thus attributed to St. Ambrose opinions quite opposite to those he held, see pp. 83 sgg. and 96. The reasons of Bishop Cosin's attitude may per-haps be found in the following statements :- (a) In "Evelyn's Diary," 22 March: " I went to Westminster, where in the House of Lords I saw his Majesty sit on his throne but without his robes : and all the peers sitting with their hats on : the business of the day being the divorce of my Lord Rosse. Such an occasion and sight had not been seen in England since the time of Henry VIII." ' (b) "This Bill, after great debates, passed by the plurality of votes, and that by the great industry of the Lord's (Rosse) friends, as well as the Duke's enemies, who carried it on chiefly in hopes it might be a precedent, and inducement for the king to enter the more easily into their late proposals : nor were they a little encouraged therein, when they saw the king countenance and drive on the Bill in Lord Rosse's favour." (c) The absence of weight with his fellow prelates may indicate the reason. "Of eighteen bishops that were in the House, only two voted for the bill, of which one voted tlwouqh age, and one was a :reputed Socinian," These, in a note, are said to be Dr. Cosin, Bishop of Durham, Ed. Lond. 1519, i, p. 425, 1670.
  • 160. AFTER THE REFOILMATION 155 and Dr. Wilkins, Bishop of Chester. To these Bishop Reynolds is added in the Parliamentary History.' MILTON. The poet Milton wrote four prose works bearing on our subject : " The Doctrine and Discipline of Divorce," " The Judgment of Martin Bucer, concern-ing Divorce," " Tetrachordon " and " Golasterion ". From an examination of them it will be seen that the "exception" in the Gospel according to Matthew was developed to the utmost point by him. He argued much on the lines of the foreign reformers and so " porneia, " was interpreted in the widest possible sense ; heused allegorical methods, and his conception of wedlock was that realized in the New England states: "e would allow "marriage to be dissolved freely by mutual consent, or even at the desire of either spouse" (Howard, Vol. 111, p. 251). This Milton practically put in force by separation from his own wife, but it must be added they came together again. Milton wrote : "The Parliament, also the clergy of England, were not ignorant of this, when they con-sented that Henry VIII might put away his queen, Anne of Cleve, whom he could not like, after he had been wedded half a year" (Prose Works, Vol. 111, p. 266). "Milton goes further than Zwingli, Bucer, or any other reformer in admitting grounds for absolute I See note on p. 499 in Cosin's Works, Yol. IV, in Library of A. 0. Theology. =Howsrd, Vol. 11, p. 127.
  • 161. CHAPTER XIII. THE DIVORCE ACT, 1857. THE establishment of the claims of Parliament to annul the marriage bond, and the suggestions1 of the Divorce Commission of 1850, led to the bringing in s Bill in Parliament. 'The suggestions of the Commissioners were :- That the distinction between divorce a mensa st taro and divorce a vinczilo nmtrimonii shsll still be maintained. Ths t the grounds far di~oroea mensa et tow shall be conjugel infidelity and gross cruelty. That wilful desertion shsll either be also a ground for divorce a mensa et toro. or else sh&Il entitle the abandoned wife to obtain the above-mentioned causes, as well as by the husband. That divorce a vinoulo shall be allowed for sdultecy and for adultery only. Thst divorce a vinevlo shell only be granted on the suit of the husband, and not (as a. general rule) on the suit of the wife. That the wife, however, may also spply for divorce a vinoulo in case of aggravated enormity, such as inoest or bigamy. That recrimination, connivsnce, and oondonntion, shsll, if proved, be deemed and treated ss bars to the suit. That recrimination shsll include any of the grounds for which divorce may be obtained a mema et toro. That the existing mode of obtaining a. divorce a vi~~cuslhoe ll no longer be oontinued. That a verdict at law, and an eoolesiastioal sentence, shallnot be uansidered as preliminary conditions which must ba complied with before it can be obtained. 151
  • 162. 158 DIVORCE AND RE-MARRIAGE Lord Redesdale dissented from those suggestions and based his dissent on Scriptural itnd historical grounds, as well as moral and social grounds. One portion of his opinion must be given : "Let us re-member, in determining this point-divorce a vinculo -who He was who said, 'He that i~ without sin among you, let him cast a stone at her ' : let us take example from Him who forgave the guilty one, when she stood alone before Him, bidding her 'to sin no more'. Let us remember that with God forgiveness is always accompanied with reconciliation, and humbly inquire within ourselves whether if we desire That s. new tribunal shall be constituted to try all questions of divorce. Th&t all mstrimoniai questions also whioh are now determind in the eoolesiastioal conrts shsll be transferred to the same tribunal. Thst this tribunal shdl oonsist oi a. vioe-ohancellor, s oomman-law judge, and a judge of the ecclesiastical courts. That the pmty who seelrs s. divorce, whother it be s, divorce a measa et tom or a ~1ivol.cea vinculo innt~imonii,s hall pledge his beliei to the truth of the case, and that therois no oollusion between hirnself and his wife. ,........... TI& the judge shsll have the power of examining the parties, and also of ordering any witnesses to be produced, who mq throw light on the question. That the court shall be intrusted with a largo discretion in pre. scribing whether suy, end whht, provisionshall be made to the wife, in adjusting the rights which she and her husband may rospsot-ively have in esch other's property, and in providing for the guard-ianship and maintenance of the children. Thst there shall ba only one apposl from the deoree of the oourt; end that appeal shall be carried to the House of Lords. The suggestions wore signed, Omupbell, Stephen Luahington, Besumout, Spencer Horatia Walpola, William Page Woad, Edward Playdell Bouverie.
  • 163. THE DIVORCE ACT, 1857 159 to prove ourselves worthy to be His followers, we are justified in placing the bar of divorce between an erring woman and all hope of reconci1~ation."-(Cf. First Report of Divorce Commission, 1850.) The debates in the House of Lords cause sad re-flections, showing how the bishops themselves failed and irreparable damage was done: for who was able custodere custodes ? During the debate on the second reading on 3 Maroh, 1857,' the Earl of Derby said in the House of Lords, he hesitated: "When I find that the principle of this bill is con-demned in a most able manner and with great elo-quence by the only two members " (i.e. Bishops of Oxford and Exeter, both of whom accepted the "ex-ception " in the Gospel according to Matthew) " of the right reverend Bench who are present on this occasion, these feelings of doubt and reluctance must naturally be much increased. I should have thought, my Lords, that if there were one question to which the heads of the Church in their legislative capacity were bound to give their utmost attention and con-sideration, and to advise your Lordships as to what is the law of the Church, what, in their opinion is the law of God, and what the effect upon the moral and social condition of the people under the present system, that question would be the question of marriage and divorce. It is to me a matter of deep regret that, on a recent occasion, when the subject under your Lordships' consideration was almost en-tirely of a similar character, no less than twenty-three right reverend prelates gave their votes, and that on 'See Hansard's Reports.
  • 164. 160 DIVORCE AND RE-MARIZIAGE the present occasion, when it would well become the right reverend Bench to enlighten your Lordships on this subject, there are only two r~ght reverend prelates present." The Lord Chancellor said that : "When he had the honour of introducing the bill, he never supposed that there would be any serious opposi-tion to it on the part of their Lordships and he thought he was justified in that opinion." The voting was Content 25, Nan-content 10. The bill went further than the recommendations of the Divorce Commission of 1850 and granted divorce a vinoulo, carrying with it the right of re-marriage for the husband on proving in the civil court alone the adultery of his wife, and for the wife on proving adul-tery and cruelty on the part of the husband. The bill finally passed the House of Lords on 23 June, 1857. Contents 46, including the Bishops of Bangor, London, Ripon, St. Asaph, and Worcester. Non-contents 24, including the Bishops of Chichester, Durham, Exeter, Llandaff, Oxford, Rochester, and Salisbury. Mr. Gladstone fought strenuously for the doctrine and discipline of the Church, but "what chance could a lay champion have against a bill, the second reading of which had been supported by the Arch-bishop of Canterbury and nine bishops ".' Mr. Glad-stone held that marriage was indissoluble, and so re-marriage under any circumstances or conditions whatever was not admissible.2 'I But though he fought the bill," says Lord Morley, "with a holy wrath as 1 Lathbury's "Letters, etc., of Mr. Gladstone," Vol. I, p. 130. Lathburg, Vol. 11, p. 360.
  • 165. THE DIVORCE ACT, 1867 161 vehement as the more worldly fury with which Henry Fox, from very different motives, had fought the Marriage Bill of 1753 . . . all that he could do in the House of Commons was to obtain the passing of amendments, which 'narrowed and abated' the wrong the bill did to the clergy. They were not to be compelled to solemnize marriages when one of the parties had a husband or wife still living, but they were not permitted to close the doors against the use of thechurch for that purpose by another clergyman".' The Archbishop of York has said "to insist upon the Church lending its buildings for such unions, and permitting its ministers to celebrate them, means that the State commits itself to a public act of utter re-ligious unreality ". This bill overrode the teaching of the Church of England from Anglo-Saxon days : it reduced to im-potency the Canons in reference to marriage, and placed the Church and her teaching in direct opposi-tion to the civil law, the Lord Chancellor, with brutal arrogance, remarking during the debates,"' the 'Lathbury, Vol. I, p. 131. We share the opinion which Mr. Lathbury goes on to record: "It was a, compromise whioh, as things turned out, did more harm than good. Without it, the Act might have hsd to be enforced in oiroumstsnoes whioh would have shoclied the pubiio conscience, and induoeaPhriiament to recognize the re-marriage of divorced persons only as a. civil contract. With it, the resistance of the recaloitr&nt olergy has been only a personal matter. The lsst two letters on this suhjeot th8.t I have printed show that the lapse of thirty years hsd in no wsy lessened Mr. Glsdstons's dislike of the Act of 1857, or his conviction that the 'innocent party' in a divorce suit ' is often the more guilty of the two '." 2Hansard, 18 June - 17 July, 1851. 11
  • 166. 162 DIVORCE AND RE-MARRIAGE law of the land must be paramount over religious scruples ''. The Crown was thus forced to give consent to that which was morally against obligations undertaken, for the Coronation oath has the following stipulation :- ''A~clzbishop. Will you to the utmost of yoclr power maintain the laws of God, the true profession of the Gospel and the Protestant Reformed Religion established by law? And will you maintain and preserve inviolably the settlement of the . . . Church of England . . . and the Doctrine, Worship, Discip-line and Government thereof as by law established . . .?"I How repugnant this bill must have been to the Queen will be seen from the letter of W. E. Gladstone to the Rev. S. E. Gladstone : " 28 March, 1885. . . . I have much hesitation in venturing even to say a word. But this I would say-there ought to be much caution in drawing any broad distinction between the innocent and the guilty parties. For this only means innocent and guilty in the Divorce Court, and the person who comes off as innocent is often the more guilty of the two. It is, I apprehend, on account of the unsafety of this rule that no divorced person is ever received at Court. . . . I do not feel at all clear that innocence bears upon the case. . . ."% Prom 1857 onwards the Divorce Act has been the law of the land and in conflict with the teaching of the Church and steadily producing baleful results. Lord Campbell wrote that he was appalled by the 1 Phillimore'a l'Ecalesiastioal Lsw," Vol. I, p. 817. 9 Lathbury, Vol. I, p. 137.
  • 167. THE DIVORCE ACT, 1857 163 results. In 1689 Mr. Gladstone wrote : " Unquestion-ably, since that time (1857), the standard of conjugal morality has perceptibly declined among the highest classes of this country, and scandals in respect to it have become more frequent. The decline, as a fact, I know to be recognized by persons of social experience and insight who in no way share my abstract opinions in divorce."-Lathbury, Vol. 11, p. 362. I t will not be necessary to multiply such testimony, which, alas ! is abundantly forthcoming.
  • 168. CHAPTER XIV. THE LAMBETH CONFERENCE OR 1908. THE Lambeth Conference, meeting in 1908, passed the following resolution :- "39. This Conference re-affirms the resolution of the Conference of 1886 as follows :- " (A) That, inasmuch as our Lord's words expressly forbid divorce, except in the case of fornication or adultery, the Christian Church cannot recognize divorce in any other form than the excepted case, or give any sanction to the marriage of any person who has been divorced contrary to this law during thelife of the other party. " (B) That under no circumstances ought the guilty party, in the case of a divorce for fornication or adnltery, to be regarded, during the lifetime of the innocent party, as a fit recipient of the blessing of the Church on marriage. " (C) That, recognizing the fact that there always has been a difference of opinion in the Church on the question whether our Lord meant to forbid marriage to the innocent party in a divorce for adultery, the Conference recommends that the Clergy should not be instructed to refuse the Sacraments or other privi-leges to those who, under civil sanction, are thus married. 164
  • 169. THE LAMBE'PH CONFERENOE OF 1908 165 " 40. When an innocent person has, by mmns of a court of law, divorced a spouse for adultery, and desires to enter into another contract of marriage, it is undesirable that such a contract should receive the blessing of the Church."-" S.P.C.K. Report," pp. 55, 56. The Lambeth Conference (1908) was composed of " Archbishops, Bishops nCetropolitan, and other Bishops of the Holy Catholic Church in full Com-munion with the Church of England ". Two hundred and forty-two assembled.-Ibid. p. 21. Its decisions are not binding on the Church at large, because it is not a properly constituted Church assembly or Council, and represents the bishops alone. Yet from the high ofice of the members and the personal worth of their characters, its decisions carry great weight ; so all Churchmen, and particularly one bearing the office of a priest, would wish to write in respectful terms of such an assembly. Yet such respect ought not to prevent considered and careful criticisms of tha results of its deliberation, and probably no single member of that assembly would wish any other course to be adopted. The Conference of 1888 Inay be allowed to pass, as "much water has flowed under London Bridge since that date ". The crucial question before the Conference of 1908 was, "What was the teaching of Christ in reference to divorce and re-marriage? " The other points, which were dealt with, are rightly settled according as this main question is settled. With the utmost respect and deference, the present
  • 170. 166 DIVORCE AND RE-MARRIAGE writer urges that the whole Conference delegated ihe consideration of a subject, which it is not too much to style as "vital to the Church," to a Committee ill-equipped and ill-endowed for such important work. The question in the first resort was one for Biblical criticism-What were Christ's words ? That settled, it is an easier matter to decide what conclusions should be drawn from those words. How much the disputed " exception " in the Gospel according to Matthew being considered as Christ's words influenced various writers every student Bnows, and also the hostility to critical investigation and reconstruction (due in measure to the rash conclusions in various " Lives of Christ," and particularly in those made in Germany). Yet the question is not one that can be avoided, and particularly by those who claim to guide the Church of England. The Committee appointed to come to a conclusion on this all-important question had absolutely next to no equipment to arrive at accurate conclusions. I t is a highly specialized question, involving the most careful consideration of the results of modern Biblical criticism. The Committee appointed for this purpose consisted of thirty-four bishops, of whom (whatever may be their great personal worth and character) only one bears the reputation of being an authority on Biblical criticism, while two others might be considered as having some reputation for first-hand knowledge of the subject ; but these three bishops and all the others were engaged in the most exacting and continuous duties of their ofEce, in-volving incessant denlands upon their time and
  • 171. THE LAMBETH CONFERENCE OF 1908 167 thought, year in, year out, and which, so many bishops have complained, absolutely prevent continuous study and accurate research work. Further, very many of them were most honourably engaged in work far re-moved even from civilization. "First-hand" research was one of the chief re-quisites, and that was most conspicuous by its absence on this Committee. Most of us Churchmen, Bishops, Priests, and Deacons, and also the Laity, must depend upon those authorities at our Universities and else-where, both at home and abroad, who are not daily engaged in the endless activities of Church and public life. "Some branches of Gospel study must be left in the hands of specialists, and in regard to these branches our chief duty is loyally to accept the speci-alists' matured conclusions." 1 It also ought to be remembered that " a question of criticism must be decided on critical grounds, with-out regard to doctrinal consequences ".% The mode of procedure adopted by the Lambeth Conference was as though a highly specialized and disputed point in medicine, e.g. "the physiological action of chloroform and the best way of administer-ing it as an an~sthetic,"s hould have been delegated to thirty-four eminently respectable and very busy general practitioner^.^ Would this course have been adopted ? Rather, would not those specialists, who 'Prof. Bukitt, " The Gospel History and its Transmission," p. 5. a Snlman's " Human Elements in the Gospels," p. 130. To mske the point quite clear : As the busy general practitioners would without doubt be better judges ss to general treatment and the appliostian of the results of the specialists' research, so the bishops, eta,
  • 172. 168 DIVORCE AND RE-MARRIAGE had been and were devoting their lives to that and kindred subjects, have been summoned to consider and report upon the subject? Yet, on this vital question to the Church scarcely one, whose name stands out as an eminent and un-doubted authority on modern Biblical criticism in this special department, was on that Committee, and so its conclusions demand and carry little weight. This "nnscientific " attitude comes out in strong colours when the report is submitted to the whole Conference. The report is carried by 87 votes to 84. No names are given or made public. This "vital subject, demanding accurate knowledge of modern Biblical criticism," and upon which recommendations are to be issued to the Clergy and Laity alike, is carried by hhree votes ! Out of the 240 members co~nprisiug the whole Conference, 171 voted, giving this majority of three votes. Examine the list of the members; consider their work and the abundant labours their office entails (and many being far away from seats of learning), and ask, Could a more unscientific, unscholarly way have been possibly adopted ? Even thus, only three are sufficient to carry recommendations subversive of the teaching, formularies, and discipline of the Church ! Then, too, stress is laid upon the "difference of opinion in the Church," and it is well known how much the exception in the Gospel according to Matthew has contributed to that difference. The value of an opinion depends upon the knowledge upon which it is based, not upon the ares, it has
  • 173. THE LAMBETH CONFERENCE OF 1908 169 covered, or the time it has been held, or the character of the person giving it. It might as well be claimed that the conclusions of modern medical science should respect and give way before such opinions as are recorded in the " Folk-lore of Medicine " or Pettigrew's " Medical Superstitions " ! Dr. Foakes Jackson brings out this point in the following words: " At the same time, since in every age the Church is tempted to regard her interpreta-tion of the Lord as final and complete, a return to the historic Christ is a constant necessity, and the only cause of progress ".I Also Prof. Burkitt : " The attempt to 'return to the historic Christ ' is the only way by which we can escape from the tyranny of the last generation's theories about Christ ".2 The Church, as a whole, needs to watch most care fully the claim, which is being made tacitly but yet none the less really, by the Lambeth Conference, to deal in a way unknown in Church history with the doctrine and formularies of the Church. The words of the Bishop of Chichester, Dr. Ridg-way (dealing with points of doctrine) put this point very clearly: "I cannot sanction them, simply be-cause in my judgment they require the sanction not of individual bishops, but of the Church speaking in her corporate capacity in Convocation, for Convoca-tion, even unreformed as it is, is still the only ac-credited voice of our branch of the Catholic Chnrch." -See "The Guardian," 26 August, 1910. But if it I" Cambridge Theological Essays," p. 476 note. 7" The Gospel History and its Transmission," p. 31.
  • 174. 170 DIVORCE AND RE-MARRIAGE is desired that respect be paid to even the opinions (and it must be remembered that they are but opinions) of the Lambeth Conference, and since the question under discussion in these pages must be a "burning" one for years to come, and threatens to involve the whole relationship of the Church to the State-it is very respectfully urged that the Archbishop of Canter-bury, before the next meeting of the Conference takes place, should seek out the best exponents of modern Biblical criticism at home and abroad and obtain their opinions (and reasons for such) upon this question ; and that those opinions should be laid before the best Committee possible of the whole Con-ference and appointed from the members who are the best endowed ttnd equipped to deal wiih so all-impor-tant a subject. Also, that the evidence, upon which a decision is come to, should be published at the same time as the decision, and particularly when it is sought to go behind the teaching and formularies of the Prayer Book.
  • 175. CHAPTER XV. OONOLUSIONS. WE have now considered the yuestion of divorce and re-marriage, starting from the words of Christ and working through Church Councils, authorities, and writers to the present day. In view of this evidence, the questions arise : What must he the attitude of the Church of England to this question ? What action ought to be expected from a Democratic State? The Church of England ought to be ready, at all costs, to instruct her members, teaching them to ob-serve all things whatsoever her Master has com-manded her. She must he prepared to welcome the proved results of Biblical critical scholarship at the hands of eminent and trustworthy authorities, who have studied to make clear what the commands of Christ were, and particularly as her witness from her earliest times till the present is in harmony with those results, and with the witness of the first three centuries of Christianity and onwards, even though the conflict with various nations and conditions per-verted at times this teaching. She will do well to remember that the doctrine of the indissolubility of marriage is almost unknown 171
  • 176. 172 DIVORCE AND RE-MARRIAGE outside Christianity, and that evcn civilized com-munities in their civil code of laws have for the most part not recognized it.' The Church inust remember that Christianity is not an appeal to physical force or legal compulsion, but to the conscience. I t is only when the claims of Christ have been accepted that His teaching will be followed. Christ Himself has pointed out the danger of co~npulsion: "for all that take the sword shall perish with the sword" (Matt. xxv~. 52). Use compulsion, and then, when the balance of power has changed, compulsion will be used against those who formerly held and used the power. The mission of the Church is to war against evil-that which worlts against the teaching of her Master ; in season and out of season, successful or unsuccess-ful, her mission goes on and must go on. " The Church must be known by her worlt, but we must take care we understand what that work is or we shall be un-reasonably expecting that from her which she was not sent to do. Her work is warfare against evil everywhere, complete conquest over evil nowhere. Not by the completeness of her conquest over evil, '". . . There are peoples with whom marriage is a relation abso-lutely indissoluble. Sometimes this is the csso on Ssorsmenial grounds, implying usually considerable progress in religious ideas (the old India law does not recognize a proper divorce, though the husband msy supersede' his wife; but sometimes by tho existing custom of Indian peoples it is sllowed) ; but it is also true of peoples standing on a very low plane of culture, such as certain of tho Pnpuas of New Guinea, the Vcddahs of Ceylon, or tho Niassers of Bstu, wheredeath alono is sufficient to dissolve the marriage bond : (this rule applies, apparently, only to the Papuas in Geelvinkbai):' --Howard's i' Alatrimonial Institutions," Voi. I, pp. 229. 229.
  • 177. CONCLUSIONS 173 but by the completeness of her antagonism to all evil, are we to judge how far she is true to her mission. To look for more than this is sure to lead to disap-pointment, perhap to unbelief; to look for less than this is sure to lead to carelessness and sloth." ' The all-important question for the Church is whether she is being true to her Masker's commis-sion, not what is expedient or the "line of least resistance," for "you cannot bind the teaching of Christ within the bands of expediency. Religion is an end in itself." The co-operation of a Democratic State (in which persons of all religions and none take a share in the government) can only be secured (and indeed ought only to be given) in proportion as the Church has gained acceptance for her own teaching and led the majority of its member$ to desire "the beauty of holiness ". But this point will be dealt with later on in connexion with the State. Realizing the conlmands of Christ, His Church must at all costs be true to that teaching. So then the work of the officers of the Church is to teach accord-ing to their commission. Priests must teach and watch for the observance of ihe discipline of the Church which is based on that teaching. If any members seek "to make of none effect " this teaching in reference to divorce and re-marriage, then it is obviously the duty of the parish priest to delate, acting under the canon and rubrics, such members to the bishop of the diocese, who is the appointed 'Sermonby ArohbishopMages on "The Fins1 Overthrow of Evil". 2 " The Quakers," "Spectator," 30 July, 1910.
  • 178. 174 DIVORCE AND RE-MARRIAGE custodian of the discipline of the Church. And it is not unreasonable to expect that the bishops, when they are rightly making demands that the Prayer Book shall be fully accepted by Churchmen, priests and laity alike, should be ready to accept and act upon the doctrine and discipline contained in that book. The parish priest ought not to imitate the " topsy-turvy" proceedings of the case of Bannister u. Thompson; the duty of enforcing the discipline of the Church is cast upon the bishops ; it is no part of the duty of the parish priest to oustodire cmtodes. His duty is to teach faithfully and to report infractions of teach-ing and discipline, after duly warning the recalcitrants, to the overseer of the Church, upon whom rests the ultimate responsibility. To turn to Che State. The State ought not to use force in the reahn of oonseience; but on the other hand, she ought carefully to guard that liberty does not degenerate into licence? As regards divorce, statesmen will realize that the State stands on an " incline plain ". Her stability depends upon the homes of the people based on the sanctity of mar-riage. Even the heathen poet, Horace, realized this :- Blessed thrice snd more the lovers Bound by an unbroken tie, Whom no evil strife shsll sever Till the day that sees them die.% 1 The present Archbishop of York has said : " I n legalizing the marrisge of divorced persons in the lifetime of one of the partners, the State has chosen to ignore Christian principles on which its own fsmily life hss been based ". 2 " Belices ter et amplius Quos irrupta tenet copula, neo malis Divulsus querimoniis Suprem& oitius solvet amor die."
  • 179. CONCLUSIONS 175 If "because of hardness of men's hearts," the State is conlpelled by those, who are its members and are of all creeds and none, to allow divorce and re-marriage, then it cannot be part of the duty of the State to force such things upon the Church-which at all costs must follow the teaching of her Master. Statesmen will do well to consider the other side of the picture. I t is well put by Dean Strong:' " It is the spiritual value and importance of marriage which lies at the root of the austere conception of it that belongs to Christianity. And it may be noticed that laxer views of it are invariably based upon what is ultimately mere passion. The history of mankind shows clearly enough the value and reasonableness of the strictest view, and arguments against it de-rived from the strain of a life-long vow, and the difficulty of restraining wandering desire-and these form the stock-in-trade of writers of problem-novels and plays-are simply picturesque representations of crude passion. It is in this region that the Church is most likely to come into collision with the law of tne State, and it enters upon any snch contest with less than the usual advantages. Behind it lies the definite command of Christ, What God hath joined, let not man put asunder, and the interpretation given by St. Paul of the indissoluble character of marriage. The State is also concerned in preserving the purity of human life, and is inclined to resent the intrusion of a positive command upon what it conceives to be a legitimate region of free debate and decision. 1 Pp. 383, 384, in "A M&nua*l of Theology," by Thomas B. Strong, D.D., Dean of Christ Ohuroh, Oxford.
  • 180. 176 DIVORCE AND RE-MARRIAGE Probably the least satisfactory condition of things is the present, when the State endeavours to do part of its work through the Church, but shows signs of objecting to the stricter ideals of the Church. As the Church cannot surrender these ideals without dis-loyalty, it may well be that serious changes will be necessary in the existing arrangements. The State could rightly insist on a civil marriage for all : it has no right to insist that ministers of the Church should bless unions which the Church condemns." The connexion of Church and State does not im-ply such proceedings, for the establishment of the Church-since it is a mere truism to write the State did not create the Church-is but another way of saying that the State recognizes that body as a means by which she performs certain duties to all who seek her aid and services. It is quite open to the State to say that the recognition of the Church of England under the altered conditions of life in this twentieth century, and in a Democratic State, enables her no longer to do this, and on honourable terms to both sides "to dissolve partnership ". But it is not part of the duty of the State to seek to violate the doctrine and discipline of the Church duly-ing the continuance of that partnership, and that in the supposed interest of a few who, while refusing the teaching of the Church, seek to make use of her formularies. Bishop Thirlwall's words still stand true: " The Legislature cannot reasonably or con-sistently require the clergy, whom it obliges to recognize the Scriptures as of supreme authority, to act in contravention of that which appears to them
  • 181. CONCLUSIONS 177 to be there plainly taught as the commandments of Christ ". To try and force conditions on the Church which, by virtue of the commission of her Divine Master, she cannot and ought not to accept, cannot be the policy of true statesmen, and certainly the work of the Church in our large towns and alsoin our villages demands better treatment.' The State has a right to define what shall be the terms of the contract of marriage, provided she does not claim that it is Christian marriage,' that they do not conflict with the temporal interests of the State, and that she does not seek to impose those condi-tions on the Church. It would be of advantage-since immorality leading to divorce is against the best temporal interest of the nation-that a breach of that contract should not lead to the desired result of the guilty parties, viz. to set them free " to have their (corrupt) hearts' desire". '"In the Diocese of Norwioh there are 914parishes, but in no less than 393 of them there is no place for public worship except the parish church. The Archbishop of Canterbury onoo pointed out that in one of the poorest districts of South London there were 57 parishes with 157 resident clergymen, but only 52 chapels with 13 residcnt ministers." =In 1836 Lord John Russoll sdvocsted that marriage, ss regards the State, should be purely o, civil oontract, "leaving to the parties oonoerned to sdd any religious ceremony or ceremonies they may think proper". "his the House of Lords steadily aimed s t , for on 3 Meroh, 1857, during tho second reeding of the Divoroe Bill, aft,ftsr it had previously bean almost unanimously oarried that those who had committed adultery with each other should not be permitted to marry,-this even the Jewish Law decreed, and so does the Freuoh Law to-day,-the Lord Chancellor said: " As I am respons- 12
  • 182. 178 DIVORCE AND RE-MARRIAGE It may be the "only worldly compensation the man can make to the woman " ; but such a permission is often an incentive to break a contract, upon which the highest temporal welfare of the nation and the well-being of children rest. The compilers of the " Refor-matio Legum Ecclesiasticarum " estimated adulterous conduct at its right value and the penalty it deserved to pay (p. 134) ; and even now if, instead of such con-duct resulting in obtaining " their corrupt hearts' desire," it secured for both parties six months' im-prisonment with hard labour, the work in the Divorce Court would soon cease to be congested. If a man or woman steals gold or damages property, the law exercises a healthy severity; but when that which is of vastly more value is stolen, damaged, or broken, no such penalty is forthcoming. There is much wasted sentiment over the so-called "innocent party ". Those parties the late Queen Victoria estimated at their true value, and so excluded all such parties from her Court. That her estimate was a true one is borne out by all who have had ex-perience in the Divorce Court, or who have studied the defended proceedings (while the undefended are even worse) over a series of years. Practically an "innocent party" is almost unknown; at any rate ible for introducing the ohsnge in the law, in what I think tho best mode, I have thought it necessary to omit that provision, leaving it to your Lordships to re-insert, if I do not convince you that it is most objeotionabla; your Lordships sro aware that in your private Aots of Parliament to dissolve marriages, it has always been your Lordships' praotioe to introduce suoh B proviso, knowing that as a. msttcr of oaurse it was invariably struck out of the Bill in the other House."-Harnsard.
  • 183. CONCLUSIONS 179 from the standpoint of the Church, following the teaching of Christ, the marriage bond is indissoluble, and no amount of legalization can make it in her eyes anything but adultery. Given a truly "innocent party" it is necessary to remember that progress to higher life, both in the natural and spiritual world, is most frequently through suffering. Better the few suffer than tha lives and welfare of multitudes of children yet unborn be darkened. To the Christian men or women whose lives have been saddened by unfaithful partners, the grace of the Sacraments, the discipline of religion, and mens conscia reoti will make an otherwise intolerable burden capable of being carried for "the sake of the kingdom of heaven". They will know that the "re~nedy for sin can only be repentance," they will be prepared to put no obstacle in the way of repent-ance. So, whatever terms of marriage contract the State, acting within its rights, decides upon, these cannot be and ought not to be forced on the Church. If the State breaks through her terms of partnership with the Church-the State is entitled to dissolve that partnership without a doubt, but not to vary the terms of partnership-and forces other terms, not only in reference to the marriage ceremony but also as regards admission to Holy Communion, then the State seeks to dissolve in an unworthy way that partnership. Without a doubt such a " pin-prick" policy could be adopted, but it will be readily recognized that such a mean course is totally unworthy of even third-rate statesmanship. 12 "
  • 184. 180 DIVORCE AND RE-MARRIAGE The late Archbishop Magee once said : "Whenever the State treats, and requires the Church to treat, as married those whom the Church declares to be not married or marriageable, then will come t~ strain that will snap, or go near to snapping, the links that bind the Church and State ". So, then, let the Church and State both recognize their proper spheres of work, the one coinplementary to the other, and the limitations set to those spheres; the Church seeking to bring about the acceptance of the commands of Christ ; the State not seeking to hamper or fetter her in that worli, even though she may accept for herself, dealing only with temporal interests and because of the "hardness of men's hearts," a marriage contract and terms of dissolution other than that taught by the Church. Let all, in their several stations and callings, strive that "true religion and sound learning may for ever flourish and abound ".
  • 185. INDEX. AD~LPIUS7,2 . Adultery, 27. Afriosu Code, 94 Aiouin, 120. Allen, 35. Ambroii~ster. 96. Ambrose, 83. Antipss, 26. Aauinas. Thomas. 129. Athenagoras, 55. Augustine, 20, 38, 90. B~~rouAn. ,J ., 156. Bmcroft, 146. Bartlett, 31, 32. Basil, 77. Barur, 21. Bede, 124. Besa, 135. Bickell, 63. Bingham, 74. Bleak, 36. Bonifsoe, 99, 119. Box, case of, 149. Browne, Bp., 119. Buoer, 135. Bull, Bp., 76. Burlritt, 11, 12, 20, 26, 16'1, CANON of N.T.. 12, Canons, ~~ostblica6l5,. - English, 142. Cardwell. 150. Chase, B<, 4'4. Chichester, Bp., 169. Chromatius. 85. Church Cou?~eils- Aaohen, 102, 108. Agde, 103. Angers, 102. Antiooh, G2. Arles, 71. Bourgss, 109. Carthage, 13. Campiagne, 107. Eenham, 126. Elvira, 64. F~.iuli, 100. Hertford, 115. Noo Czessros, 74. Paris, 108. Rheima, 109. Rome, 101. Soissons, 104. Toledo, 104. Tours, 109. Trnllo, 62, 97. Vaunts. 103. Verborihs, 106. Clement of Alsxandric~, 57. Clement. Willibrord. 11R. Cnute, 125. - Cohu, 13, 19, 33, 34. Constantine. 68. Const&ntinohle, 69. Coronation OaLh, 162. Cosin. 152. DERBYE, arl of, 159. "Dictionsry of Antiquities," Smith's, 73, 74. " Diotianary of Christian Bio. graphy," 115. 181
  • 186. 182 INDEX Divorce Commission (1850), 130, 157. Drey, 63. Driver, 17. Dunstan, 124. EBORIUS7, 2. Eogbriht, 119. Edersheim, 3. '' Encyolopsedin Britannies," 110. Epiphanius, 79. Erasmus, 135. Erudition of Christian Man, 137. Eusebius, 21. Evelyn, 154. Ewdd, 20. " Exception" in Matthew, 26,35 S¶P. Horaoe, 174. Hort. See Westoott. Howard, 1, 2, 68, 71, 93. Howell, the Good, 243. IN~UBhNupCeI'EI&,l, 6 8. Innocent I, 95. Institution of Christian Man, 136. JACKSON16, 9. Jerome, 86. John, Xing, 128. Johnson, 116. 118, 123, 125. Josephus, 26. Justinisn, 71. KEBLE, 59. Ksim, 36. FABIO3L6A. , Fletcher, 75. Folj&mba, osse of, 146. Fornication, 27. Bunk, 53. GENESIS, Book of, 16. Gladstone, W. E., 152, 160, 162. Gore, Bp., 43. Goepel-Matthew, 6, 25. - Mark, 8, 18. - Luke, 9, 22. - written, 12. Grstian, 99, 110. Gregory Nszimeen, 80. - the Grest, 98. - 11, 98. HADDON1,1 3,114,115,122. Hammond, 149. Hsnsard, 159. Harnsok, 22. Hastings, "Dictionary of the Bible," 19, 21, 31, 36. Hawkins, 19. Hofele, 63, 66, 73, 97. Helpidius, 63. Hermas, 51. Herod'ias, 26. Hillel, 4. Holmes, 59. Holternsnn, 20. LACHMA20N. N, Lsotsntius, 75. Lambeth Conference, 164. Lathbury, 161. Laud, Archbishop, 146. Lecky, 3.123. Lefroy, 45. "Lev Julis," 2, 69. "Logis," af St. Matthew, 20, 23, 31. Lombard, Peter, 111. Luokenor, case of, 147. Luokaok, 117, 129, 135. Luther, 135. MAOCLESBIELcD&, se of Esrl, 148. Magee, 172. Marriage Oode- - - Anglican, 112. - - French, 177. - - Greek. 1. - - Jewish, 3. - - Roman, 2. -- service, 139. Martyr, Justin, 53. - Peter, 135. l'I.lilman, 69. Milton, 155. Montfort, Simon ae, 128. NICHOLASI , 102. Norfolk, case of Duke of, 143.
  • 187. INDEX 183 1 z~oaan~aPso,p e, 99. ABERDEEN: TEE UNIVERGIIY PEE66