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Divorce, and that which made Adultery capital; since this allowance for divorcing the adulteress seems to imply, that the law for putting the guilty person to death, was not considered indispensable, at least, under the New Testament.
The next thing that demands attention, is the sort of Divorce which is here permitted. Whether it is such a dissolution of the marriage bond, as to vest a power of re-marriage, or only a separation of intercourse, without affecting the vinculum or bond.
To examine this with accuracy, we must once more go back to the Mosaic law. By that law, the Divorce for inferior causes was such a dissolution, as to give full liberty to both parties to marry again.* By the law of Christ, the only alteration that has occurred, respects the trivial reasons for separation; such separation being obtained, it is of the same character, and attended by the same results, as that of the old dispensation: the path to it may be narrowed,
* In the case of Salome, before alluded to, when she divorced Costobarus, the words used by Josephus are, πέμπει μεν αυτω γραμματιον ΑΠΟΛΥΟΜΕΝΗ τον γαμον. She sent him a Bill of Divorce to dissolve the marriage.
Joseph. Antiq. lib. xv. cap. 7.
but the issue to which that path conducts, is the same as before; the consequences remain untouched.*
One difference is observable, however, between us and the Jews; for, in case of fornication, the Jews expected no sentence of the consistory; but the power was lodged in the husband to dismiss his wife; he might himself give the Bill of Divorce; but this was never allowed to Christians, they have ever required some judicial declaration; with this exception, the results are the same.
The causes of Divorce, Christ restricts to one, and as he abstains from any observation on the sequel, the liberty which flowed as a necessary result from the exercise of this liberty, it is fairly to be concluded that it continues the same. This is the presumption arising, primâ facie, from the Saviour's statement of his alteration, and silence as to the rest. But it has been asked, Would the Divorce obtained by the innocent against the offending party, liberate fully the persons of both? Or does not the crime of Adultery, committed against the first nuptial vow, attach to itself, at least as far as the guilty party
* See observation of Lightfoot, in page 107.
is concerned, an incapacity of all subsequent marriage?
To this we answer, that as Christ has not restricted it, we cannot do so. The new covenant has not swept away the natural and necessary consequence of re-marriage which flowed from Divorce under the old covenant. The toleration of the latter was more ample, the permission given by Christ is more restricted; but this is the entire of the alteration, and whether the licence now granted be wide as formerly, or narrower than before, it is a licence granted for the same purposes, and to attain the same ends; to be accompanied by the same powers, and followed by the same results. The inference, once extended to the many, still extends to the few; for the law of Christ is a modification, not a subversion, of that of Moses, (which latter, by the way, was equally the law of God,) a modification which altered circumstances have since permitted; and where no alteration is specified, the provisions of the former remain the same. The Saviour himself alludes to the conjoining of the two acts, Divorce and re-marriage. "Whoso shall put away and marry again," except under certain circumstances, is guilty of Adultery. It is clear, therefore, that the meaning attached by Him to the term Divorce, is not merely a
separation of intercourse, but a dissolution of the bond.
It must be owned that there appears, at first sight, something specious in the reasonings of those who would deny this liberty to the adulterous divorced person; such a restriction on the guilty may appear more consistent with the principles of justice. But two objections arise to this; first, it seems impossible to separate the two cases; and, secondly, if possible, it might be impolitic, because it might, and probably would, lead to an increase of crime; for it can hardly be expected, that they who were found to violate an obligation so sacred as that which they have broken, would be very scrupulous in a separated state, and more violations of the precept would thus arise from the restriction itself.
The Divorce, then, of the second covenant, is of the same character as the Divorce of the first; it is a dissolution of the contract, and if so, the power of entering into a new and second contract, attends it as before. This reasoning is simple and intelligible, but, for want of attending to it, many errors have prevailed on the subject of re-marriage. To it may be traced the great difference between the opinions of the Catholics and the Protestants, on which more shall be said afterwards. The fornication
clause sustains the arguments of the latter for the liberty of Divorce; and this attended with all its consequences; while the former found their reasons on the general declaration, "What God hath joined, let not man put asunder." Of course, this asserts in their view the perfect indissolubility of the marriage bond.* But this, if understood in all its latitude, would annihilate the permission even of separation, which Christ specially allows; and strange, indeed, it would be, if, upon a subject so vital and momentous as this, the Saviour had expressed himself so vaguely, as, under such a supposition, he must be considered to have done.
This is one mode of reply to the Romanists. In a latter part of the Essay, the decrees of their own Councils shall be shown to be at variance with the opinions of their own Fathers. But, in addition to this, there is an argument, which, resting the view to be taken of this matter only upon their own text, would furnish their complete confutation. They urge, What God hath joined, let not man sever." We admit the rule; but applied to Divorce, by reason of Adultery, it totally
* See Bellarmine de Matrim.