SECTION IV.

History of the Christian Doctrine of Divorce.

THE objections which have been made to the licence and privilege of divorce, and the attempt to restrict the dissolution of marriage to cases of previous disqualification, involve a degree of practical importance, and at the same time rest on principles so remote from the received practice and common apprehensions of mankind, as to require the production of every argument and authority which can be brought forward in their defence. It will be necessary therefore to resume the history of the doctrine of divorce, in which it may be convenient to follow the arrangement of Selden, by whom it is divided into three principal æras; including, 1. the age before Constantine; 2. the age between Constantine and Justinian; and, 3. the age between Justinian and the decay of the Empire in the East, and the Reformation of the Church in the West. Into these several periods the chief writings and authorities of the Church may be distributed; and materials may be collected, from which it may be shewn, how far the rigour of the original doctrine was from time to time accommodated to the rule which had obtained among the Heathens and the Jews; by which the faint traces and lineaments of the primitive law may be drawn out as they appear in the several ages and periods of the Church; and which may prove the necessity of adhering to the strict sense and meaning of the words of our Lord, if they can be ascertained, instead of

following the degenerate practice of his disciples. The chief objects of the enquiry will be, the dissolubility or indissolubility of marriage; the progress of divorce for adultery, and of the restriction or licence of contracting new marriages; and the prohibition and nullity of alien marriages, of marriages contracted between the believing and the unbelieving. The result of the enquiry will serve to vindicate the general practice and doctrine of the Church and the law of England in restricting the right of divorce, and in maintaining the indissolubility of marriages rightly contracted, and not precluded or vitiated by previous disqualification.

It is not necessary to revert to the origin and progress of divorce among the Romans, and its mischievous and unhappy effects; or to the circumstances under which the permissive law of divorce was conceded to the Jews, and the extent to which it was eventually abused. It is too plain to be denied, that this permission received no countenance from our Lord, who either restricted divorce to the one case of adultery, according to the received interpretation, or asserted, that marriages founded in incest, particularly signified in alien marriages, were null in themselves, as it has been attempted to be proved. It does not appear from the investigations of the writers who have examined the subject, that the question of divorce was agitated in the first ages, or by the primitive writers, of the Church; and they have been generally content to argue upon the authorities of a later age, in which the purity of the original practice had degenerated, and the Hellenistic idiom had fallen into disuse. To the genuine writers

of the apostolical age divorce was unknown. Among the first Christians there was no adultery: it was one of the offences which they bound themselves under the sanction of an oath not to commit. The λυσις γαμων, variously interpreted of the prohibition of marriage, or of the dissolution of marriage, was one of the doctrines imputed to the ancient heretics: but such was the purity of the first age, that it afforded no practical comment on the evangelical or apostolical doctrine of divorce: and a doubt of considerable importance is raised by Selden, whether, when the first writers treated of divorce, they contemplated both parties as Christians, or one only as a Christian, and the other an alien, whether a heathen or a Jewa. If in the former case the marriage was lawful, and therefore its indissolubility was not brought into dispute; or if in the other the marriage proceeded on principles not authorized by the true religion, and was therefore liable to be dissolved; if either part of this hypothesis could be established, the point which bas been contended for would be decided. It is certain that the earliest writers agreed in the opinion that there was but one cause of divorce, and that that cause was fornication: but they differed concerning the extent and meaning of the term; some supposing it to comprehend spiritual fornication, or the alienation and apostacy of idolaters and unbelievers; others restricting its meaning to carnal fornication, which in married persons is adultery; and others conceiving, that other offences, equal to fornication, were included in the term, and constituted

just causes of divorce. Bingham supposes the first and the last interpretations to be private opinions, and the second, which restricted divorce to adultery, to be the received doctrine of the Church. The difficulties of the question are such as cannot be denied, and can only be resolved by the weight of the evidence.

It may be useful here to recapitulate the different cases, which, it is argued, have been decided upon sacred authority. If our Lord, according to Whitby and the argument which has been maintained in these pages, delivers a general rule concerning equal marriages, the permanence of those marriages is unequivocally asserted, and the clause of exception can relate only to the doubtful validity of unequal marriages. The first case decided by the apostle is a case of marriage, equal in a certain sense, in which both the parties, before the marriage, were aliens, and after their marriage were converted. This marriage was affirmed on the ground of the general permanence of marriage, established on divine authority, with an exception, referring either to an actual separation, before the appeal to the apostle, or to the contingency of a future separation; but in either case prohibiting any new marriage, in consequence of the separation. The next case is that of a mar riage, also equal at the time of contract, between two aliens, but rendered unequal by the subsequent conversion of one of the parties: and the continuance of this marriage is recommended upon motives of expedience, on condition of the consent of the

b

Bingham's Eccl. Antiq. b. xxii. c. 5. s. 1, 2.

unbeliever; motives and conditions from which the original invalidity of the contract may be inferred. This invalidity is expressly asserted in the third case, of an unbeliever desiring to be separated from a believing consort; in which the one is, without any scruple, suffered to depart, and the other is pronounced to be not bound. In the three cases, the clause of exception in our Lord's law of divorce, interpreted of alien marriages, of which, under that very name, the apostle is professedly treating, is the principle on which the voidability of the marriage is declared, so far as to allow the separation of the parties, without permitting the Christian consort to enter upon another marriage an indirect proof of the restricted application of that clause. There is yet another case of a believer, after his conversion, marrying an unbeliever; and this is argued upon such views of its sinful tendency, as would justify the conclusion of a nullity of the contract, from its opposition to the will and institution of God. In all these cases there is not an insinuation of the dis solubility of a valid marriage, nor the shadow of a deviation from either of the general assertions of the apostle: A woman is bound by the law to her husband, so long as her husband liveth: but if her husband be dead, she is free to marry whom she will, only in the Lord. But the unbeliever may depart: a believer is not bound in an unequal marriage.

&

It is of importance to remark, that the first Christian writer who treats of divorce, whether he be or

Rom. vii. 2, 3. 1 Cor. vii. 39.

41 Cor. vii. 15.