Abridgment of Ecclesiastical Laws, Treatise · Chapter 36

Abridgment of Ecclesiastical Laws · Treatise · Chapter 36

p. 492CHAP. XXXVI.

Of Divorce; as alſo of Alimony.

1. What Divorce is, the cauſes thereof; the difference between the Civil and Canon Law touching the proof of impotency, frigidity, or diſability; and what manner of proof the Law requires thereof.

2. What time of abſence in the Husband may cauſe a Divorce.

3. Whether Divorce by reaſon of Adultery diſſolves the Marriage à vinculo? or whether the innocent party may remarry altera exiſtente?

4. What the Canon in Concilio Arelatenſe provides in that Caſe.

5. The opinion of ſome eminent Common Lawyers in this point.

6. The different Opinions of Divines and Lawyers, and of each among themſelves touching this matter.

7. The Opinion in ſumma Hoſtienſ. as alſo of Suarez, touching the legality of ſecond Marriage after Divorce.

8. The Canon of the Council of Trent concerning Matrimony; alſo the Opinion of ſome of the Ancient Fathers, and a Decree of one of the Popes touching ſecond Marriage after a Divorce

9. Decrees and Hiſtories of great Antiquity relating to this Subject.

10. What the Pontifical Law, what Juſtinian, what Baldus, and what Grotius ſays in this matter.

11. Opinions in this point take their diverſification much from the cauſe of the Divorce, as whether ex cauſa praecedenti vel ſubſequenti.

12. Judgments at the Common Law, that a Divorce for Incontinency, is only à Thoro & menſa, non à vinculo.

13. What the Law intends by Alimony, and what Elopement ſignifies; no Alimony due to her that Elopes.

14. In what Caſes the Law will allow Alimony, or not.

15. How the Civil Law provides in that Caſe of Alimony.

16. The Eccleſiaſtical Court is the proper Court for Alimony.

17. Whether the High Commiſſion-Court had power of Alimony, or not?

p. 49318. Prohibition denied to the Husband ſued in the Eccleſiaſtical Court by the Wife for Alimony in cauſa ſaevitiae.

19. Whether the Eccleſiaſtical Court may take Bond for Alimony, or Impriſon for non-payment thereof.

(1.) A Divorce is a Sententence pronounced by an Eccleſiaſtical Judge, whereby a Man and Woman formerly Married to each other, are ſeparated and partedaaCo. par. 7. Kerah's Caſe.. The word Divortium or Repudium is often taken promiſcuouſly, both for a Total and Perpetual Divorce, & à vinculo Matrimonii; as alſo for a Partial and Temporal Divorce, or Separation à Cohabitatione, vel à thoro & menſa. The cauſes of this Divorce, whereof ſome are precedent, others ſubſequent to the Marriage, are many in the Law; Thomas Aquinas reckons up no leſs than a dozen of them, and thinks he hath Poetically compriz'd them all in four Verſes, viz.

Error. Conditio. Votum. Cognitio. Crimen.

Cultus Diſparitas. Vis. Ordo. Ligamen. Honeſtas.

Si ſis Affinis. Si forte Coire nequibis;

Haec Socianda vetant Connubia, Facta retractant.

bbAquin. ſupplem. 3. par. q. 51, 52, 53. praeſertim in 4. Diſt. 34. q. 1. a. un.. But the Cauſes of Divorce in the Law as now commonly practicable, may be reduced to theſe few. (1.) The Levitical Degrees within which it is prohibited to Marry. (2.) Precontract; And ſo if a Man Marry one precontracted, and have Iſſue by her, it is the Fathers Child until there be a Divorce upon the precontract, and then it is Nullius Filius, a BaſtardccCo. par. 6. 66. and Dyer. 105.. (3.) Impuberty or Minority; And ſo if two be Married infra annos nubiles, and after full age are Divorced for the ſame, the Woman may bring an Aſſize againſt the Man for Land given her in Frank-marriage ddLib. Aſſ. 19. An. pla. 2.which proves that the Divorce is by that Law from the very Bond of Matrimony (4.) Frigidity in the Man, or Impotency in the Woman, termed Arctitudo in the Law; but the word [Impotency] is promiſcuouſly uſed in both Sexes, for it is ſaid, that if after a Man be Divorced for Impotency, he take another Wife and have Children by her, theſe ſhall not be Baſtards, becauſe a Man may be habilis & inhabilis diverſis temporibus eeCo. par. 5. 93. and Dyer. fo. 178.. But in this Caſe the Civil Law hath made other proviſion, for that Law in cauſa Frigiditatis requires three years Cohibitation for Trial of the Diſability before it doth upon other legal evidence and proof conclude any Married perſons either Frigid or Impotent; Indeed the Canon Law expects preſent proof, and in caſe of ſuch Impotency or Frigidity, not Accidental but Natural and Incurable, concludes that the Matrimony was never a Matrimony. The evidence of p. 494which Diſability depends on the Oaths of able Phyſicians, as alſo of aged and grave Matrons experienced in ſuch affairs; nor is it to be alledged till after a Triennial experience of each other poſt Matrimonium Conſummatum; and is a juſt cauſe of Divorce, for that it fruſtrates one of the chief ends of Marriage, viz. Procreation of Iſſue, if it be ſufficiently proved by Inſpection of the Body, Triennial Cohabitation and the Oaths aforeſaid. Conſil. Matrim. To. 2. Conſil. 8. nu. 1. And in Caſes doubtful whether it did precede the Marriage or not, the Law will preſume it to antecede the Marriage, and conſequently nulls it, in caſe it be Natural; otherwiſe, both as to the preſumption and operation, in caſe it be only Accidental. Sanch. lib. 7. diſp. 103. nu. 4. And where the Impotency doth ſufficiently Conſtare to be Perpetual by the Oaths aforeſaid upon Inſpection, there the Triennial probation ceaſes. Ʋt cum Gloſſae. cap. Fraternitatis. De Frigidis & Maleficiis. & Panor. nu. 11. Pope Sixtus 5th in his Bull An. 1587. declared that Matrimonia cum ſpadonibus, vel eunychis prorſus eviratis, ſeu utro que teſticulo carentibus, cum quibuſlibet Mulierihus, ſeu defectum praedictum ignorantibus, ſeu ſcientibus, eſſe ſemper que fuiſſe irrita. Antonini …ana reſolutiones morales. Tract. 4. Miſcelan. reſol. 75. p. 190.

(2.) There are alſo other ſeeming cauſes of Divorce than what are forementtoned; for the Civil and Canon Law do allow of Divorce after a long abſence, but are not agreed touching the Time of that Abſence; for in one place it is after Two years Abſence, in another after Three years; in another after Four. Cod. lib. 5. tit. 1. l. 2. poſt biennium. tit. 27. poſt tres an. l. 27. poſt Quatuor an. others hold that the Civil Law requires Five years Abſence before there may be a Divorce on that account. In the Council of Lateran a Sentence was allowed by the whole Council, which was given by a Biſhop, pronouncing a Divorce for a Woman, complaining that her Husband had been abſent Ten years, giving alſo leave to the Woman to Marry again. In Concil. later. par. 50. cap. 23. But the truth is, no abſence, be it for any time whatever, doth properly cauſe a Divorce in Law; Indeed Seven years Abſence without any tidings or intelligence of or from the Abſent Party, will ſo far operate in Law towards what is equivalent to a Divorce, as to indempnifie the Woman from the penalty of Polygamy, if in that caſe ſhe Marry again. Alſo the Canon Law hath decreed, that if the Wife refuſe to dwell with her Chriſtian Husband, he may lawfully leave her. Cauſa 28. q. 1. c. 4. And ſome of the Imperial Laws allow Homicide, Sacriledge, Theft, Man-ſtealing, &c. for cauſes of Divorce, Cod. lib. 5. tit. 17. l. 8. But the Canon Law decrees otherwiſe. In the time of Ed. 1. William de Chadworth was Divorced, becauſe he carnally knew the Daughter of his Wife before he p. 495Married her MotherooTerm. Paſch. 30. Ed. 1. coram rege.. The Stat. of 1 Jac. cap. 11. is the firſt Act of Parliament that was made againſt Polygamy. Polygamia eſt plurium ſimul virorum, uxorumve connubium, The difference between Bigamy, or Trigamy, &c. and Polygamy is, Quia Begamus ſeu Trigamus, Co. Inſt. par. 3. cap 27.&c. eſt, qui diverſis temporibus, & ſucceſſive duas, ſeu tres, &c. uxores habuit. Polygamus, qui duas vel plures ſimul duxit uxores. And if the Man be above the Age of fourteen (which is his Age of Conſent) and the Woman above the Age of twelve (which is her Age of Conſent) though they be within the Age of twenty one, yet they are within the danger of the Stat. of 1 Jac. cap. 11.—Co. Inſt Par. 3. Cap. 27. vid. Inſtit. par. 1. Sect. 104.

(3.) This matter of Divorce hath often miniſtred occaſion for high debates and altercations touching ſecond Marriages, As whether a Divorce by reaſon of Adultery in either of the Married Parties, doth ſo diſſolve the Marriage à vinculo, as that it may be lawful for the Innocent Party to Marry again during the others life? By the 107th Canon, It is provided, that in all Sentences for Divorce ſecurity be given and Bonds taken for not Marrying during each others lifeaaCanons Eccleſiaſtical. Edit. 1603.. By enjoyning ſuch ſecurity to be given, and ſuch Bonds to be taken, This ſeems to be a Penal Canon, viz. pecuniarily Penal; whoever therefore breaks the Law incurrs the penalty, and whoever ſuffers the penalty doth anſwer and ſatisfie the Law which before he had infring'd; a penalty expreſſed or implied, provided for in, and annexed unto a Law that is in it ſelf prohibitory, ſeems to create ſome qualification of that legal prohibition, Prohibitio vim ſuam exercere poteſt per poenam vel expreſſam vel arbitrariam: Et hoc genus Leges Imperfectas vocat Ʋlpianus, quae fieri quid vetant, ſed factum non reſcindunt, So Grotius. Grot. de jure Bel. & Pacis. lib. 2. cap. 5. Sect. 16. But to ſpeak a little nigher to the point in hand, it is Grotius again in the ſame place, Si Lex humana conjugia inter certas perſonas contrahi prohibeat, non ideo ſequitur irritum fore Matrimonium, ſi re ipſa contrabatur: ſunt enim diverſa prohibere, & irritum quid facere. The Laws whether Eccleſiaſtical or Temporal are not of any private interpretation; yet to ſpeak herein only hypothetically, if this be interpretative as a penal Canon by vertue of the ſaid Security and Bond, then appoſit and obſervable is that which Grotius hath in another place, in Caſu Legis Paenalis, his words are theſe, viz. Rex qui eſt Auctor Legis, & ubi Regni ipſius perſonam & auctoritatem ſuſtinet, qua talis eſt, poteſt legem etiam totam tollere; quia Legis humanae natura eſt, ut à voluntate humana pendeat, non in Origine tantum ſed & in duratione. Sicut autem totam Legem tollere poteſt, ita & vinculum ejus circa perſonam aut factum ſingulare, manente de caetero lege. Dei ipſius exemplo. Qui (Lactantio teſte) legem cum poneret, p. 496non uti que ademit ſibi omnem poteſtatem, ſed habet ignoſcendi licentiam. Imperatori, inquit Auguſtinus, Licet revocare ſententiam, & Reum mortis abſolvere & ipſi ignoſcere: Cauſam explicat, Quia non eſt Subjectus Legibus, qui habet in poteſtate Leges ferre. Grot. ibid. de Paenis. cap. 20. Sect. 24. How farr the power of Princes may extend it ſelf in this matter, is not before us; But clear it is, that all ſuch as acknowledge the Regal Supremacy, will withall confeſs, that his Majeſty hath more right to diſpence with Canons within his own Dominions ex plenitudine poteſtatis Regalis, than was here formerly exerciſed ex uſurpatione poteſtatis Papalis. In all Laws that are both Prohibitory and Penal, as they are of the more force by reaſon of their Prohibitory quality, ſo they ſeem to abate of that force by reaſon of the annexed penalty; for he that ſuffers the penalty, ſatisfies the Law, though he tranſgreſs the Command. The Statute of primo Jacobi hath a Proviſo or exception to ſecond Marriages by perſons legally Divorced; ddSt. 1 Jac. cap. 11.. no Caitons or Conſtitutions prevail or are executable, in repugnancy to the Kings Prerogative, or to the Laws or Statutes of this RealmeeSt. 25. H. 8. c. 19.. That Statute of primo Jacobi prohibiting ſecond Marriages during the Life of each other, doth not only not extend to perſons legally Divorced, but as to ſuch it is with an exception, limitation or proviſo as aforeſaid. Sir Ed. Coke taking notice hereof in Porters Caſe, reports that that Statute extends only to perſons which are Divorced by Sentence in the Spiritual CourtffPorters Caſe. Co. rep.; And that diſtinction of Total and Partial Divorce, Or that vel à vinculo vel à Menſa & Thoro, will not it ſeems ſatisfie all Judgments, ſome alledging that ubi lex non diſtinguit, nec nos diſtinguere debemus, applying that Rule ad Evangelium alſo; and thence will not be perſwaded but that the innocent party in Cauſa Divortii ob Adulterium may Marry again, altera parte exiſtente, becauſe though they know it to be otherwiſe by Text Canonical, yet know not where to find it ſo by Text Scriptural; and ſpecially becauſe they find a Proviſo in the ſaid Statute of primo Jacobi, that the parties Divorced by ſentence, if he take another Wife, or ſhe take another Husband, ſhall not be within the danger of the Statute; And that this extends to every manner of Sentence of Divorce, and not to any particular cauſe of Divorce. Cajetan, though of the Roman Church, yet on the 19th of Matthew ſaith, Intelligo ex hac Domini Jeſu Chriſti lege, licitum eſſe Chriſtiano dimittere uxorem ob fornicationem carnalem ipſius uxoris, & poſſe aliam ducere: and ſoon after adds, Non ſolum miror, ſed ſtupeo, quod Chriſto clare excipiente cauſam fornicationis, torrens Doctorum non admittat illam Mariti libertatem. This Queſtion, Whether after Divorce for Fornication it be lawful to Mary again during the Lives of the parties Divorced, is at large handled by the learned p. 497Doctor Hammond in his Treatiſe of Divorces; where he ſays that Mat. 19. 9. and Mark 10. 6. are two places of ſuch perſpicuity (one Cauſe of Divorce allowed the Chriſtians, that great Breach of the Conjugal Vow, and whoſoever Divorces and Marries again, ſave in that one Caſe punctually named, committeth Adultery) that as no Paraphraſe can make them more Intelligible: So there is but one Queſtion that can reaſonably be ſtarted in them, viz. Whether he that puts away his Wife on this one authentick cauſe, be ſo perfectly freed from the Conjugal Vow and Bands, that he may Lawfully Marry ſome other Woman, and ſome other Man Marry that Divorced Adulterers Wife? In Mat. 19. 9. The words are, That whoſoever ſhall put away his Wife, ſave for fornication, and ſhall Marry another, committeth Adultery; and he that ſhall Marry her that is put away, committeth Adultery: Which words (ſays that learned Author in Sect. 22.) are favourable to the affirmative, that it is Lawful for him in that one excepted Caſe to Marry again. The nature of a Divorce among the Jews was the reſcinding of the Conjugal Bands, and by one ſuppoſition common to Jews and Romans, viz. That they who were duly Divorced might Marry again: So of the Jewiſh Divorced Wife, Deut. 24. 2. 'tis expreſly ſaid, ſhe may Marry another; and of the Man, this was his only End of putting away his Wife in that place, that he might Marry another: Accordingly the Form of Divorce in Misna, tit. Gittin, Behold, thou art free, or at liberty for any Man, and this is the Bill of Divorce between me and thee, ſo that it is free for thee to Marry to any Man thou wilt. Idem. Sect. 27. yet on the other ſide (ſays that learned Author) it may be argued, that although in the Moſaical Law, Divorce was the reſcinding the Conjugal Bands, to which it was conſequent, as long as the Jewiſh polity laſted, that they who were duly Divorced (as in the one Caſe of Fornication) might freely Marry again: yet in the acceptation of our Chriſtian Courts, Divorce appears not to be any more than the ſolemn Judicial ſeparation from Conjugal Society, as that it ſeems to be rather the freeing the Husband and Wife from the Obligation to mutual conjugal duties, than the utter reſcinding and diſſolving the Bands. For if it were ſo, then that Husband and Wife could never come together again without a new Wedlock, which was never heard of in the Church; that Adultery, the efficient cauſe of Divorce (though a breach of the Conjugal Vow) is yet no actual diſſ…lution of the Conjugal Bands, among us Chriſtians, ſeems probable (ſays Doctor Hammond) by theſe two evidences (1.) Becauſe Adultery committed by the Husband, diſſolves not Marriage, which yet it equally ſhould, if that fault committed, and not the Sentence of Divorce reſcinded the Conjugal Band, &c. In this a difference is obſervable p. 498between us and the Jews; for in caſe of Fornication, the Jew expected no Sentence of the Conſiſtory, but the Man might put her away, give her from himſelf a Bill of Divorce, which was never allowed or practiſed among Chriſtians. 2. Becauſe if this were ſo, if Adultery in the Wife diſſolved the bands, then the Husband, that after the Wifes Adultery continued to live with her Conjugally, muſt be concluded to commit Fornication with her, the validity of the bands being it (and nothing elſe) which makes Conjugal Society Lawful. Accordingly hath the Opinion of the Church been anciently, as in Can. Apoſt. 48. If any Laick put away his Wife and Marry another, or Marry a Woman which hath been put away by another, let him be Excommunicate. So likewiſe at the Council of Arles, An. 314. Can. 10. De his qui Conjuges ſuas in adulterio deprehendunt, & iidem ſunt Adoleſcentes Fideles, & prohibentur nubere, placuit ut in quantum poſſit, concilium iis detur, nè viventibus uxoribus ſuis, licet Adulteris, alias accipiant. Likewiſe in the Milevitan Council, An. 402. at which St. Auguſtine was preſent, it is decreed, that ſecundum Evangelicam & Apoſtolicam Doctrinam, ne que Dimiſſus ab uxore, neq. Dimiſſa à Marito, alteri conjungantur, ſed ita maneant, aut ſibimet reconcilientur. So alſo in the Codex Can. Eccl. African. Can. 102. foreign. That they that are Divorced from Husbands or Wives, ſhould remain unmarried. And what hath thus been defined by theſe Canons, is evidently received into the Eccleſiaſtical conſtitutions of this Church, which therefore hath decreed, that when Divorces are pronounced, Monitio & prohibitio fiat, ut à partibus ab invicem ſegregatis caſte vivatur, nec ad alias Nuptias alterutra vivente convoletur. Conſtit. Eccl. An. 1597. upon theſe Arguments pro & con, Doctor Hammond in the forecited place doth conceive, that the Reſolution may be made by theſe three propoſitions: (1.) That by the force of Chriſts words in all the Evangeliſts, he that Marries again after any kind of Divorce, but that one for Fornication, doth commit an Ʋnchriſtian ſin. (2.) That by force of the Arguments firſt produced, for the interpreting Mark and Luke by Mat. 19. 5. vid. Doctor Hammond of Divorces, fol. 452, 453. it may be probably concluded that in that one caſe of Divorce for Fornication, the Marriage of the Innocent party ſhall not be Adulterous. (3.) That although this be granted, yet the words of St. Mark and Luke, eſpecially the words of St. Paul, 1 Cor. 7. 39. do give ſuch prejudices againſt Marriages after Divorce indefinitely, that the ancient Canons of the Church, and the Conſtitutions of our Engliſh reformation, have thought fit not to permit ſuch liberty in any kind, and therefore that this may be the better obſerved, the decree of ſeparation ſhall p. 499not be pronounced, till they that demand it, ſhall give ſufficient ſecurity that they will do nothing againſt the Admonition and Prohibition, for our Conſtitution adds, Deni que quo illud firmius obſervetur, ſententia ſeparationis non antea pronunciabitur, quam qui eam poſtulaverint, Cautionem Fidejuſſoriam ſufficientem interpoſuerint ſe contra monitionem & prohibitionem nihil commiſſuros, which if not obſerved by the Judge, he is puniſhable, and the Sentence of Divorce for ſuch defect declared void. Conſtit. Eccl. an. 1597. Innocent the firſt, Biſhop of Rome ſaith, Qui interveniente repudio, alii ſe Matrimonio copularunt, in utra que parte Adulteros eſſe manifeſtum eſt, &c. But the ſaid Judicious Author conceives, that of this and the like Teſtimonies it may be obſerved, that moſt of them belong not to theſe Divorces, which are in caſe of Fornication, but (proportionably to Chriſt's words in St. Mark) to thoſe which according to the Jewiſh or Imperial Laws, were allowed in other Caſes, than what either Chriſt, or the Primogenial inſtitution of Marriage had allowed of: And further ſaith, that it is evident and confeſſed by all Chriſtians, that of Theſe, that is, the Marriages (after ſuch Divorces by the Jewiſh and Imperial Laws) are Adulterous, but not ſo of thoſe other Marriages of the innocent parties after thoſe other Divorces in that one Caſe of Adultery. Yea and ſome Canons have been made with this Temperament expreſly (except in the caſe of Fornication) ſo in the ſecond Canon of the Council of Vannes, eos qui relictis uxorihus ſuis, ſicut in Evangelio dicitur, excepta cauſa Fornicationis, ſine Adulterii probatione alias duxerint, ſtatuimus, &c. They that have left their own Wives, as it is ſaid in the Goſpel, except for cauſe of Fornication, and without proof of Adultery ſhall have Married others, we judge them, &c. Notwithſtanding which, the Law tells us of other Caſes than that of Adultery or Fornication, wherein the Man after a Divorce may remarry during the Life of the Woman Divorced, as in the Caſe of Arctitude, which you may find in Summa Aſtenſi, Lib. 8. De Divortio propter impotentiam. Tit. 37. fo. 233. Si Arctatio alligetur (ſubaudi quamcun que impotentiam Foeminae) ſtatim poteſt Divortium Fieri hoc modo, viz. vocabuntur Matronae fide dignae, & in Nuptiali opere expertae,—Ar. F. de Ventr. inſpect. l. 1. verb. igitur, &c. Et ſi Mulieres aſſerant eam non poſſe fieri Naturaliter Matrem, tunc ſtatim poteſt Divortium fieri, et dabitur viro Licentia cum alia contrahendi. It will not be denied, but that in all Caſes where the Marriage was ab initio Null, there it ſhall, after a legal Divorce, be free for either party convolare ad ſecundas Nuptias altera parte exiſtente, which ſtrictly and properly cannot be ſaid to be a ſecond Marriage, becauſe precedent to it, there was duly and legally none; nor therefore can they be properly ſaid to be Divorced, Separated, p. 500or put aſunder, that never were de jure put together. Among the ſeveral kinds of theſe Null Marriages may be computed that which Panormitan ſpeaks of in his Fourth Tract de Sacramentis. Reſol. 201. Foemina (ſays he there) ſi commode non poteſt aptam ſe reddere viro, impedimentum cenſendum eſſe perpetuum, & Matrimonium declarandum Nullum; which holds true vice verſa, and therefore it is likewiſe ſaid, that Foemina per contractum Matrimonii jus ſuum tradit viro apto, non inepto, at que in non aptum nullum transfertur jus. The Canon Law is expreſs in prohibiting theſe ſecond Marriages after a Divorce, although Ex cauſa Fornicationis. So Toſtatus, verb. Matrimonium, ubi voluit nullam eſſe Cauſam Repudii, niſi Fornicationem; Et iſtam non quidem ſimpliciter ad Dirimendum Matrimonium, ſed ad tollendam Cohabitationem. ut patet, Extra. de Divort. c. Gaudemus. The Lawyers and Divines (ſays Adam Tannerus) are of different opinions in this point, Juriſtae Divortii voce utuntur pro Diſſolutione Matrimonii etiam quoad vinculum, ut conſtat. ex toto tit. F. De Divortiis. Theologi tamen ea voce Divortii ſolam ſignificant ſeparationem inter conjuge…, aut quoad Cohabitationem, aut quoad Thorum. Adam. Tannerus, Tom. 4. Diſput. 8. de Matrimonio. q. 5. Dub. 5. nu. 74. de Divortio.

(4.) In concilio Arelatenſi, which was held in An. 314. at the command of Conſtantine the Great, under Pope Silveſter in the firſt Year of his Papacy, it was Canoned, Ʋt is cujus uxor adulteravit, aliam illa vivente non accipiat. Sir Hen. Spelman gives the words of this Canon thus, viz. De his qui Conjuges ſuas in Adulterio deprehendunt, & iidem ſunt Adoleſcontes Fid…es & prohibentur Nubere, placuit ut in quantum poſſit, Conſilium iis detur, nè viventibus uxoribus ſuis, licet Adulteris, alias accipiant ggSir H. Spelm. Concil de Concil. Arelat. Can. 10.If this Canon be not directly prohibitory, and againſt ſecond Marriage after Divorce in Caſe of Adultery during the Life of the other Party, yet it provides that Counſel or Advice in the Caſe be given againſt it, and the Parties moniſhed to the contrary.

(5.) Mr. Atturney Noy in Dame Powels Caſe reports, that a Divorce cauſa Adulterii is but à menſa & thoro, & non a vinculo Matrimonii; and the reaſon he gives is this, viz. Becauſe (ſays he) the offence is after the juſt and lawful MarriagehhDame Powells Caſe againſt Weeks. Noy Rep.; if for this Opinion of his any Anticanoniſt ſhould dream, that he died in the Catholick Faith of Matrimonial Sacraments, let him conſult Sir Edward Coke in the Third part of his Inſtitutes, where he doth not only allow of that Member of the foreſaid diſtinction, but withall ſays, that in the Caſe of Divorce à Menſa & Thoro the ſecond Marriage is void, living the former Wife or HusbandiiCo. Inſtit. 3. par. cap. 17. Polygamy.. Yet in Bury's Caſe he reports it to have been adjudged, that by a Divorce p. 501the Marriage is diſſolved à vinculo Matrimonii; and alſo reſolved, that admitting a ſecond Marriage to be voidable, yet it is adjudged that the ſame doth remain in force until it be diſſolved; and that the Iſſue born during ſuch ſecond Coverture is a lawful Iſſue to inherit the LandkkBury's Caſe. Co. 5. part 98..

6. Touching the kinds and effects of Divorce, whether Divorce à vinculo Matrimonii, or ſeparation only à Menſa & Thori, with the cauſes thereof; the Divines and Lawyers are of different Opinions, and each of theſe divided among themſelves; ſome conceive, that as there be Divorces Ex Cauſa praecedente, ſo there are ſome Ex Cauſa ſubſequente, as Cauſa Adulterii, and that Adultery diſſolves the very Bond of Matrimony, which conſiſteth in their being one Fleſh. And whereas it is written, That whoſoever ſhall Marry her that is Divorced, committeth Adultery llMat. 5. 32.Matt 5:32, they will have it to be meant only of ſuch as ſhall Marry her who is Divorced for any other cauſe or reaſon, than for Fornication; which they inferr from the former part of Mat. 5. 32. that whoſoever ſhall put away his Wife, ſaving for the cauſe of Fornication, cauſeth her to commit Adultery; ſo that for the cauſe of Fornication it is lawful to put her away, and whoſoever ſhall Marry her that is (ſay they) Divorced for any other cauſe, committeth Adultery; whence they would inferr, that a Remarriage after Divorce for the cauſe of Fornication is not forbidden; And as for that Divorce or Separation à Thoro & Menſa, they look on it as no current Coin, not having (as they pretend) Caeſar's Image or Superſcription thereon, but ſeem very poſitive in affirming that Pha…iſaei interrogabant Chriſtum de dimiſſione quoad vinculum, & non quoad Thorum & menſam. It is true indeed, by the Judicial Law a Woman Divorced from her Husband in cauſa Adulterii might be another Mans WifemmDeut. 24. 1, 2.Deut 24:1Deut 24:2; which is no contradiction to Mat. 5. 22. if the Divorce there mentioned be à vinculo. But that which ſuch as are for Poſt-repudiary Marriages much inſiſt on,Beza in Luke 16. 19.Luke 16:19 is that which the Reverend Mr. Beza hath on the like place, Qui hinc colligunt (ſays he) poſt Repudium Nullum eſſe ſecundo Matrimonio locum, altera parte exiſtente, inepte colligunt; loquitur enim Chriſtus de Repudiis apud Judaeos uſitatis, inter quae numerari non poteſt Repudium ob Adulterium, Levit. 20. 10. and Deut. 22. 22.Lev 20:10Deut 22:22cum Adulteros ex lege oportet Capitali poena plecti.

(7). If ingreſſus in Religionem be (as ſome underſtand it) a kind of Mors Civilis, then it ſhould ſeem it might be for that reaſon that in ſuch caſe it was lawful for the other Party convolare ad ſecundas Nuptias, for by the 118 Canon of Egbert Archbiſhop of York An. 750. called Canon Affrica…enſis, in exceptionibus ſuis è Canonibus Patrum Concinnatis, it was Lawful ſo to do, the words of the Canon are, Si vir ſive Mulier ex conſenſis Religionem ceperit, licet p. 502alterum accipere novum conjugium; But from hence no Argument can be drawn to prove the Lawfulneſs thereof in Cauſa Divortii. The Cardinal of Segutium in his ſumma Hoſtienſis ſeems to be of Opinion that it is Lawful in caſe of Divorce to Marry again, the words of that famous Canoniſt are, debet Iudex ſententiam Divortii partibus tradere in Scripturam publicam redactam, ne Filiis ſuſceptis ex ſecundo Matrimonio, probatione deficiente, valeat praejudicium generari nnSum. Hoſt. lib. 3. de Divortiis. nu. 14.. But Cardinal Navarr ſeems to be more poſitive in the point, where he Affirms, that Matrimonium Contractum cum ſecunda poſt ſententiam Divortii, valet, provided it be poſt Triennalem Cohabitationem, as the Canon Law requires, in cauſa Impotentiae. Navar. Concil. l. 4. concil. 1. de Frigidis. nu. 3. p. 414. But it ſeems ſtrange that Sanchez a Jeſuite, and one of the higheſt form, arguing this Queſtion againſt the Hereticks, as they are pleas'd to call us, ſhould ſo ingenuouſly confeſs, that ex ipſis Catholicis aliqui exiſtimarunt, omnino diſſolvi Matrimonium quoad vinculum eo propter Adulterium alterius Conjugis ſeparato: at que ita licere aliud Matrimonium inire, priori Conjuge ſuperſtite. Sanch. de Matrim. Tom. 3. l. 10. de Divor. Diſp. 2. nu. 1. & Navar. lib. 4. Concil. 1. nu. 3.

(8.) This, utrum ob Adulterium alterius Conjugis diſſolvatur Matrimonium quoad vinculum, ita ut integrum ſit innocenti ad alias Nuptias tranſire, altera parte vivente? was a Queſtion long ſince controverted by Bellarmin, and by Valentia. Bellarm. l. 1. de matrim. c. 15. Valent. lib. unic. de indiſſolubilitate matrim. cap. 3. And by them admitted as diſputable with a Non obſtante to the Council of Trent, whereby Matrimony is highly Sacramentiz'd, as appears by that which the ſaid Tridental Council declares concerning it, viz. Matrimonium eſt Sacramentum, quod ex opere operato confert gratiam. ſecundum Communem & veram opinionem, quam pro infallibili Articulo Fidei tenendam eſſe, ait Concilium Trident. & declaravit Navar. lib. 4. Concil. 1. nu. 3. Yet the forementioned Sanchez doth cite Sixtus Senenſis bringing in Origen Aſſerentem ſui temporis Epiſcopos permiſiſſe alias Nuptias uxoribus ob virorum Adulteria ab ipſis divertentibus. Sanch. ubi ſupra Sixt. Senenſ. lib. 6. Bibliothec. Of which Judgment alſo was St. Ambroſe (as he affirms:) alſo Tertullian, Eraſmus, Cajetan and Catherinus. Tertul. lib. 4. contra Marcion. Eraſm. annot. ad 1. Cor. 7. Cather. l. 5. Annot. contra Cajetan. infin. Cajetan. in Mat. 19. in illud, quicun que dimiſerit. This alſo, ſaith Sanchez, was the Judgement of the Greek Church, as Guido the Carmelite reports; and of this Judgment are both the Lutherans and Calviniſts; yea, it was the Judgement alſo of a Pope, Pope Zacharias the Firſt, who expreſly Decreed in theſe words, viz. Concubuiſti cum ſorore uxoris tuae, Neutram habeas; Et p. 503ſi illa quae uxor tua fuerit, Conſcia ſceleris non fuit, ſi ſe continere non vult, Nubat in Domino cui velit. Cap. Concubuiſti. 32. queſt. 7. And as to the Husband St. Ambroſe is expreſs in the Caſe, uxor à viro non deſcedat, niſi cauſa Fornicationis; quod ſi diſceſſerit, aut maneat innupta aut reconcilietur. Ideo, non ſubdit de viro, quod de uxore praemiſit, quia vero liceat ducere aliam. D. Ambros. ad 1 Cor. 7. & refertur. cap. uxor. 32. q. 7. So likewiſe Ex concilio apud Vermerias, it is expreſs, that Maritus (uxore conciliante mortem ejus) poſſit ipſam uxorem dimittere, & ſi voluerit aliam ducere. refertur c. ſi qua Mulier. 31. q. 1.

(9.) In the firſt Year of Lotharius King of Kent, An. 683. In Concilio Herudfordiae It was Decreed, that Nullus Conjugem propriam, niſi (ut ſanctum Evangelium docet) Fornicationis cauſa relinquat. Quod ſi quis quam propriam expulerit Conjugem Legitimo ſibi Matrimonio Conjunctam, Si Chriſtianus eſſe recte voluerit, nulli alteri copuletur: ſed ita remaneat, aut propriae reconcilietur Conjugi yySpelm. Concil. de Concil. Herudford. art. 10.. In thoſe days it ſeems he was reputed ſcarce a Chriſtian, that being ſeparated from his Wife preſumed to Marry another. And above two hundred years before, in St. Patricks Synod, viz. In Synodo Sancti Patricii, aliorum que Epiſcoporum in Hibernia Celebrata, circa An. Chriſti 450, vel 456. It was decreed, That the puniſhment of a Woman departing from her Husband, and joyning her ſelf to another Man, ſhould be ExcommunicationzzIdem. de Synod. Sancti Patricii Sect. 19.. In the time of H. 3. and in the Caſe of Simon de Montford, between him and his Wife, the Pope ratified his Marriage, after he had diſpenced therewith contrary to the Laws and CanonsaaMat. Paris Hiſt. Angl. p. 455.. King John being Divorced from the D. of Gloceſters Daughter, viz. the third of June 1199. ſoon after, viz. before the 8th of October then next following, was Remarried to Iſabel, ſole Daughter and Heir to the E. of Engoleſme. Likewiſe Alice Daughter of the E. of Savoy, and King John's firſt Wife, was Married to him after ſhe had been the Divorced Wife of Henry de Lyon, D. of Saxony. Speed Chron. in vita Johan. R. Angl. Alſo King Henry 8th. after he had been Divorced from Q. Katherine, his Brothers Relict, and after above twenty years cohabitation with her, Married again (during her Life) the Lady Anne Bullen, by whom he had Q. Elizabeth. Theſe are Preſidents of Fact, not of Law; For,

(10.) Alceat aſſerts, that hodie Jure Pontificio permittitur ſolum ſeparatio ex certis cauſis, nec interim licet aliam ducere, etiamſi ſeparationi uxor cauſam dederit: yet withall he ſays in the ſame place, Aliter tamen aliqui ex Antiquis Patribus olim obſervare, inter quos Ambroſius, qui ex juſta cauſa Marito jus divertendi at que aliam ducendi, &c. Non enim hos homo ſeparat, ſed Deus, quando ita Optimis Antiſtitibus propter malos Foeminae mores videtur. Alceat. de verb. ſig. p. 504l. 101. inter ſtuprum. Sect. Divortium. In which place the ſame Author further adds, It is no wonder that the Emperor Juſtinian himſelf was ſomewhat ſparing in this point, when the Pontifical Canon paſſim tempeſtate ſua obſervatus fuiſſet: ut forte credendum ſit, Licere Pontifici eos Canones tollere, & jus Romanum obſervari, ſi velit. Grotius ſays, Cum ea alteri Nupta eſt, Matrimonium haud dubie irritum lege quidem Naturali, niſi vir prior eam dimiſerit. Grot. de jur. bel. lib. 2. cap. 5. §. 11. And in the Matrimonial Councils it is expreſs, That Mulier à primo Matrimonio per ſententiam ſeparata, cum eo, cum quo ſecundo nupſit cum Authoritate Eccleſiae, manere debet. Concil. Matrim. Concil Baldi 3. nu. 3. Where the Judgement of the famous Baldus is, That Contrahentes Matrimonium cum Authoritate Eccleſiae, & vigore ſententiae Divortii, praeſumuntur eſſe in bona fide, nec Adulterium …mittunt. ibid. nu. 17.

(11.) Although the D. D. are … divided in this point of ſecond Marriage, whilſt the Divorced Parties are alive; yet the Law generally ſeems much more to incline to favour ſuch ſecond Marriages, where the Divorce is ex cauſa praecedenti, than where it is, ex cauſa ſubſequenti; For when it happens ex cauſa praecedenti, as when the Degrees prohibited are violated, Precontract, Frigidity in the Man, Impotency in the Woman, or other perpetual Impediment, the Marriage was void and null ab initio, it being a Rule and a Truth in Law, that non minus peccatum jungere non Conjungendos, quam ſeparare non ſeparand…s: But where the Divorce happens ex cauſa ſubſequenti, there the Marriage was once good and valid in Law, and therefore (as ſome hold) indiſſoluble; and that ſuch ſubſequent cauſe can have no influence quoad vinculum M…trimonii, but only quoad ſeparationem à Menſa & Thoro, which is but a Partial or Temporal, not a Total or Perpetual Divorce. A. was Divorced from his Wife for Incontinency, he after took another Wife▪ living the firſt Wife, Adjudged, the ſecond Marriage was void▪ becauſe the Divorce was but à Menſa & Thoro, and not à Vinculo Matrimonii. Rye and Juliambs Caſ. More's Rep. Sanchez ſays that Quoties Matrimonium diſſolvitur, ſi id fit ob utriuſ que Conjugis perpetuum impedimentum, utri que aliae Nuptiae interdicendae ſunt: S… vero ob alterius tantum impedimentum, illi interdicuntur, conceſſa non impedito Licentia ad alias tra…ſ…undi. Sanch. de Matrim. lib. 7. Diſp. 93. nu 37 And again in the ſame place, Viro ratione Frigiditatis ſeparato, conceditur Foeminae Licentia Nubendi alii, ea viro denegata: Et Foeminae ob impedimentum ſeparatae interdicto alio Conjugio, id non denegatur ſed conceditur viro. ibid. &c. Laudabilem de Frigid. &c. 2. in fin. 33. q. 1. &c. ex literis. eod. tit. Likewiſe the Summa Aſtenſis hath the ſame in ſubſtance, ſi Arctatio alligetur (ſubaudi quamcun que impotentiam Foeminae) ſtatim poteſt Divortium fieri hac m… do: p. 505vocabantur Matronae fide dignae, & in Nuptiali opere expertae, ar. ff. de ventr. inſpect. l. 1. verb. igitur, &c. Et ſi Mulieres aſſerant eam non poſſe fieri Naturaliter Matrem, tunc ſtatim poteſt Divortium fieri, & dabitur viro Licentia cum alia contrahendi. Sum. Aſtenſ. in l. 8. de Divor. propter impotent. tit. 37. fo. 233. as aforeſaid: yet Toſtatus on the 19th of Mat. ſaith, that Fornicatio non valet ſimpliciter ad dirimendum Matrimonium, ſed ad tollendam Cohabitationem. Toſtati Index. verb. Matrimon. as appears alſo by the Canon Law. Extra de Divor. &c. Gaudemus, &c. Quare facto Divortio (ſays Toſtatus again) non tranſeatur ad aliud Matrimonium, Toſtat. ibid. for which he there quotes St. HieromeooD. Hieron. in Mat. tom. 5. 190. F. and 188. C. and 185. D., who in this point is oppoſed by St. AmbroſeppD. Ambroſ. ubi ſupra.. Poſſibly the different conſtructions that Divines and Lawyers do make of this word [Divorce] may not be the leaſt reaſon of the different Opinions in this point; for Adam Tannerus (as aforeſaid) tells us, That Juriſtae Divortii voce utuntur pro Diſſolutione Matrimonii etiam quoad vinculum, ut conſtat ex toto tit. ff. de Divortiis. Adam Tannerus. Tom. 4. Diſp. 8. de Matrim. q. 5. Dub. 5. de Divortio Col. 2232. nu. 74. & variis de cauſis ſolvi poſſe, ut videtur in iiſd. Legib. & apud Greg. Syntag. jur. par. 2. lib. 9. cap. 5. Theologi tamen ea voce Divortii ſolum fignificant ſeparationem inter Conjuges, aut quoad Cohabitationem, aut quoad Thorum. Tannerus ubi ſupra.

(12.) F. being Divorced for Incontinency of the Wife, he afterwards Marries P. the Daughter of R. living the firſt Wife. By the whole Court that is a void Marriage; for the Divorce is not, but à Menſa & Thoro, and does not diſſolve vinculum Matrimonii. And by Whitgift Archbiſhop of Canterbury. So alſo is the Opinion of Divines and CiviliansqqHill. 44. Eliz. Rye verſ Fulcombe. in Noy's Rep. and More Rep. Caſe 893.. As alſo in Dame Powels Caſe againſt Weeks formerly hinted, In Dower it was reſolved, That a Divorce Cauſa Adulterii is no Bar of Dower; becauſe it is but à menſa & thoro, & not à vinculo Matrimonii. And it was ſaid by Daniel, that an Elopement is not a Barr of Dower ad oſtium Eccleſiae. And Judgement for the PlaintiffrrDame Powell verſ Weeks. Noy's Rep..

Agar of Kingſton upon the Thames was ſued in the Eccleſiaſtical Court for beating of his Wife, and for calling her Whore, and was ſentenced there to pay his Wife three ſhillings a Week for her Alimony, and divers Fines were impoſed upon him for not performing thereof, and a Prohibition was granted, and alſo a Habeas Corpus, to deliver Agar out of PriſonssAgar's Caſe in Brownl. Rep. pa. 2..

There was a Caſe of late years, where a Man Married the relict of his Great Uncle, he Married his Grandfathers Brothers Wife by the Mothers ſide, and it was held lawful, it was the Caſe of one Hariſon againſt Dr. Burwell ttTrin. 20. Car. 2. C. B. Rot. 2043. Harriſon verſ. Doctor Burwell Vaugh. Rep. & Arg.. But where a Man Married his Wives Siſters Daughter, it was held unlawful, and after a Prohibition p. 506a Conſultation in that Caſe was granteduuCro. 33. El. 228. Mann'… Caſe. vid. dict. Caſe Harriſon. & vid. Caſe Hill verſ. Go…d. in Vaugh. Rep.. But Marriages with Cozen Germans are in the ſaid Caſe of Harriſon againſt Doctor Burwell reported by Sir John Vaughan to be lawful; in which Caſe, as alſo in the Caſe of Hill againſt Good, reported likewiſe by the ſaid Sir John Vaughan Chief Juſtice, the Reader may find what Marriages are Lawful, and what not, what Marriages are prohibited within the Levitical degrees, and what Marriages are by Gods Law otherwiſe prohibited.

In the Caſe between Webſter and Bury in an Ejectione Firmae, a ſpecial Verdict was given upon Divorce between Burie and his Wife, cauſa Frigiditatis, Co. 5. Buries Caſe. 40 Eliz. C. B., and that his Wife for three years after his Marriage remanſit virgo intacta, propter perpetuam impotentiam generationis in viro, & quod vir fuit ineptus ad generandum; and in this ſpecial Verdict all the examinations of the Witneſſes, upon which the Judge in the Eccleſiaſtical Court was moved to give his Sentence, by which the perpetual diſability of Burie ad generandum was manifeſt, were read; and by which it was pretended, that the Iſſue which he had by a ſecond Wife was illegitimate, and this was the doubt of the Jury; and it was adjudged, that the Iſſue of the ſecond Wife was Lawful, for it is clear that by the Divorce (cauſa Frigiditatis) the Marriage is diſſolved à vinculo matrimonii, and by conſequence either of them might Marry after; then admitting that the ſecond Marriage was avoidable, yet it remained a Marriage until it was Diſſolved, and by conſequence the Iſſue that is born during ſuch Coverture (if no Divorce be in the Life of the Parties) is Lawful, Et homo poteſt eſſe habilis & inhabilis diverſis temporibus, and Judgment affirmed in Error.

A. Was indicted upon the Statute of Primo Jacobi for having two Husbands. It was found that A. was Lawfully Married to N. and before the Judge of the Audience ſhe ſued a Divorce againſt P. Paſch 12. Car. B. R. Porter's Caſe.—Cro. par. 3.propter ſaevitiam: whereupon it was decreed that propter ſaevitiam of her Husband, ſhe ſhould be ſeparated à Menſa & Thoro, and it was expreſs'd in the Sentence, that ſhe ſhould not Marry any other during the Life of P. ſhe afterwards (P. Living, and ſhe knowing thereof) took to Husband J. S. The Queſtion was, whether that were Felony within the Statute. It was ſaid in this Caſe, that this being a Divorce Cauſa Saevitiae, was but a ſeparation à Menſa & Thoro, and not a Diſſolution à vinculo Matrimonii, and therefore that the Marriage continued between them. The Court doubted, whether the Proviſo in the ſaid Statute did extend to every manner of Divorce; but inclined to be of Opinion, that ſhe was not within the Proviſo; for if this ſhould be ſuffered, many would be Divorced upon ſuch pretences, wherefore the Court adviſed the Woman, to procure a Pardon to avoid the danger of the Statute.

p. 507Debt againſt Husband and Wife,Ʋnderhill and Brooks Caſe. Cro. par. 1. as Executrix of her former Husband; the Defendants plead by Atturney, that they were Divorced before the Writ brought: It was adjudged, that the Writ ſhould abate; for it ſhall be preſumed, the Divorce continueth, if the contrary be not ſhewed. In another Caſe, being for Debt upon an Obligation, where the Defendant ſaid, that at the time of the making of the Obligation ſhe was Wife to J. S. who is yet in vita, and ſo Non eſt factum: Mic. 43. and 44. Eliz. B. R. Riddleſde… & Wogan's Caſe. Cro. par. 1.The Plaintiff ſaid, that after the making of the Bond, there was a Suit in the Eccleſiaſtical Court between the ſaid J. S. and the Defendant, for that the ſaid J. S. had another Wife alive at the time of the Marriage betwixt them, ſo as the Defendants Marriage was adjudged void. It was the opinion of the Court, that this Divorce was but Declarative, for it was void ab initio, and ſo the Defendant ſole always and adjudged for the Plaintiff.

The Wife Libelled againſt the Husband in the Eccleſiaſtical Court for Alimony, Sir Tho. Simmond's Caſe. More's Rep.becauſe he beat her ſo as ſhe could not live with him; a Prohibition was prayed, but denied by the Court; and it was held in this Caſe, that the Wife might have the Peace againſt her Husband for unreaſonable correction.

By the Statute of 1 Jac. cap. 11. it is Felony to Marry a ſecond Husband or Wife, the former Husband or Wife living; out of the generality of which Law the Lord Coke makes five exceptions. (1.Co. Inſt. par. 3 cap. 27. vid. 22. E. 4. Conſultation 5. Pains Caſe. lib. 9. fo. 72.) It extends not (ſays he) to any perſon, whoſe Husband or Wife is continually remaining beyond the Seas by the ſpace of ſeven years together; and notice is not material, in reſpect of the commorancy beyond Sea. (2.) It extends not, when the Husband or Wife ſhall abſent him or her ſelf, the one from the other, by the ſpace of ſeven years in any parts within his Majeſties Dominions, the one of them not knowing the other to be Living within that time; here notice is material, in reſpect the Commorance is within the Realm. (3.) It extends not to any perſon that at the time of ſuch Marriage is Divorced by any Sentence had in the Eccleſiaſtical Court. (4.) Nor to any perſon, where the former marriage is by Sentence in the Eccleſiaſtical Court declared to be void and of no effect. (5.) Nor to any perſon, for or by reaſon of any former marriage made within the age of Conſent.

If the Man be above fourteen, and the Wife under twelve, or if the Wife be above twelve, and the man under fourteen, yet may the Husband or Wife ſo above the Age of Conſent,Co. ubi ſupra. diſagree to the Eſpouſals, as well as the party that is under the age of Conſent: for the advantage of diſagreement muſt be Reciprocal. And ſo it was reſolved by the Judges and Civilians, Trin. 42 Eliz. B. R. in a Writ of Error between Babington and Warner. So as if either p. 508Party be within Age of Conſent, it is no former Marriage within the Act aforeſaid.

It is commonly as well as formerly ſaid, that there are two kinds of Divorces,Co. ibid. the one that diſſolveth the Marriage a vinculo Matrimonii; as for Precontract, Conſanguinity, &c. The other a Menſa & Thoro, as for Adultery, becauſe that Divorce by reaſon of Adultery cannot diſſolve the Marriage a vinculo Matrimonii, for that the offence is after the juſt and lawful Marriage. And the ſaid Stat. of 1 Jac. cap. 11. doth in reſpect of the generality of the words, priviledge the Offender (in caſe of ſecond Marriage, where the former Husband or Wife is living) from being a Felon, as well in the caſe of Divorce a menſa & thoro, as where it is a vinculo matrimonii, and yet in the Caſe of the Divorce a menſa & thoro the ſecond Marriage is void, living the former Wife or Husband. And if there be a Divorce a vinculo matrimonii, and the adverſe party appeal, which is a continuance of the former Marriage, and ſuſpends the Sentence, yet after ſuch a Divorce the party Marrying is no Felon within the ſaid Statute, &c. although the Marriage be not Lawful.

(13.) Alimony, although it properly ſignifies nouriſhment or maintenance, when ſtrictly taken; yet now in the common, legal, and practicable ſenſe, it ſignifies that proportion of the Husbands Eſtate, which the Wife ſues in the Eccleſiaſtical Court, to have allowed her for her preſent ſubſiſtence and livelyhood, according to Law, upon any ſuch ſeparation from her Husband, as is not cauſed by her own Elopement or Adultery. By this Elopement is here underſtood, meant, and intended that voluntary departure of a Wife from her Husband to live with an Adulterer, and with whom ſhe does live in breach of the Matrimonial vow, whereby ſhe incurrs the forfeiture of her Dower, unleſs her Husband upon her free and voluntary ſubmiſſion ſhall think fit by way of reconciliation to receive her again, and readmit her into the former conjugal relation aaSt. Weſtm. 2. cap. 34.In which ſenſe a Woman thus deſerting and forſaking her Husband, is ſaid to Elope, whereby the Law will not compel him in this caſe to allow her Alimony; on which word Mr. Blount in his Nomo-…exicon makes mention of an ancient recordbbRot. Clauſ. An. 7. H. p. 1. m. 3., wherein the ſame thing is called rationabile eſtoverium; This Alimony the Wi…e that Elopes or departs from her Husband with an Adulterer (though ſhe departed with her Husbands conſent) yet loſes, together with her Dower or Joynture, as appears by that remarkable Caſe of Sir John de Camois before recitedccſupra verb. Adultery. verſ. ſin. And the Husband, from whom his Wife departs, and lives with an Adulterer, ſhall not be compelled to allow her any Alimony.

p. 50914. Notwithſtanding the premiſſes, regularly the Husband is obliged to allow the Wife Alimony pendente lite, arg. l. ſi neget, ff. de lib. agnoſ. & Sanch. de Matr. lib. 2. Diſp. 41. nu. 51. and afterwards in moſt Caſes of ſeparation not occaſioned by Elopement or Adultery as aforeſaid, nor in caſe of a total Divorce by reaſon of ſome legal impediment, whereby the Marriage was Null and void ab initio. dict. Sanch. Tom. 2. lib. 7. Diſp. 93. nu. 22. This Alimony in ſtrictneſs of Law is a duty properly due from the Husband to the Wife whilſt ſhe cohabits with him; for by the Canon Law if without any default of his, ſhe does of her own accord depart from him, he is not obliged to allow her Alimony during ſuch her wilful deſerting of him, though ſhe be not charg'd of Adultery. c. haec imago 33. q. …. It being a Rule in Law, Qui non facit quod debet, non recipit quod oportet. l. ſi ea C. de Condit. inſert. & l. Julian §. affinis ff. de acti. empt. But if ſhe depart by reaſon of ſome default in him, as becauſe of cruelty or the like, in that caſe he ſhall be compelled to allow her Alimony; for the Law underſtands her as a dutiful Wife, ſo long as it is attributable only to him, and no way imputable to her, that ſhe is conſtrained to ſeem otherwiſe. arg. l. jure civili. ff. de Cond. & demonſt. & Lyn. in l. qui in uxorem. c. de Neq. geſt. nu. 1. & D. D. Communiter. But if ſhe depart of her own default, the Husband is not obliged to allow her Alimony, albeit he had a conſiderable Dowrie with her: and on the other ſide, if the Husband be in the fault, and ſhe depart from him, he is obliged to allow her Alimony, though he had nothing with her. Jo. Lupus c. pro veſtras. de Donat. int. vir. & ux. Barboſ. 2. p. rubr. ff. ſolut. matr. nu. 43. And in caſe it be doubtful, through whoſe default it is, that they live aſunder, the Law in that caſe concludes, that the party that was laſt in fault, is not leaſt in fault, l. illud 17: ff. de peric. & commod. rei vendit. And therefore if the Wife, who by her own default did voluntarlly depart from her Husband, ſhall after repent, and ſubmitting her ſelf to him, ſhall deſire reconciliation, and to be admitted to cohabitation with him, he then refuſing her ſhall be obliged to allow her Alimony, ſave in the Caſes aforeſaid. Gloſ. c. ſignificaſti. verb. materiam in ſide Divort. ubi Hoſt. nu. 2. verb. reſtitui. Jo. Andr. nu. 7. fi. & D. D. Communiter. On the other ſide, if by reaſon of the cruelty of the Husband the Wife ſhall blameleſly flie from him, and the Husband ſhall offer ſufficient ſecurity or caution for his future good behaviour to her, & her ſafety and peace with him, and the cruelty or ill uſage not ſuch, but that by ſuch caution the Wifes peace and ſafety may be undoubtedly ſecur'd, and ſhe notwithſtanding refuſe to return, in ſuch caſe the Law will not compel him to allow her Alimony. Quia ultima ea culpa uxori nocet. Ferret. concil. 34. nu. 18. Barbos. 2. p. rub. ff. ſolut. matrim. nu. 44.

p. 510(15.) By the Civil Law, if a Dowry or Marriage-Portion with a Wife be promiſed and not paid to the Husband, he is not obliged to allow her Alimony; Gloſs. Auth. de non eligend. ſecundo Nubentes. The reaſon whereof is, becauſe ſuch Portion quaſi in pretium datur; l. pro oneribus, c. de jur. Dotium. But if by reaſon of ſome misfortune, her Parents or ſuch as undertook for the Payment thereof, do after become inſolvant, ſhe ſhall notwithſtanding have Alimony, even by that Law, which in other reſpects ſeems ſomewhat ſevere in this Point, unleſs you can affect them with Fraud in promiſing what they knew they could not perform. Barbos. ff. ſolut. Matri. nu. 71. Or in caſe two perſons lay claim to the ſame Woman, each pretending ſhe is his Wife by Marriage, and the one of them move to have her kept under Sequeſtration till the Caſe be deciſed; in this caſe ſhe ſhall have Alimony pendente lite of that Perſon at whoſe motion or inſtance ſhe is ſo Sequeſtred. l. ſi pro luſorio. ff. de appellat. But if the controverſie be only between a Man and a Woman, touching the validity of a Marriage, as whether a Marriage or not; in ſuch Caſe no Alimony is due, till ſome Matrimonial Proof appear, or that it doth ſome way conſtare de Matrimonio, but wherever a Marriage doth appear, there Alimony ſhall be due pendente lite; arg. l. ſi neget. ff. de lib. Agnoſc.

(16.) John Owen lived apart from his Wife: And upon Petition of the Wife to the Juſtices of Aſſize for Maintenance, they referr'd it to the Biſhop of Bangor, who ordered that he ſhould pay to his Wife 10 l. per an. which was afterwards confirmed by Decree in the Council of Marches of Wales. And becauſe that John Owen diſobeyed that Decree, and did not pay the 10 l. per an. the Council ſent a Meſſenger to apprehend his Body, & cauſed his Goods and the profits of his Lands to be Sequeſtred. And Henden prayed a prohibition: For that Alimony was not within their Inſtructions. Richardſon demanded of him, if they could grant Prohibitions, if they meddle with a thing which belongs to Eccleſiaſtical Power, where they themſelves have Power. Harvey was of the ſame Opinion, for this Court ſhould preſerve other Courts in order. Yelverton ſaid, for the Sequeſtration of the Lands, they could not do that. Richardſon, they have not any Power to ſell the Goods. The Eccleſiaſtical Court is the proper Court for Alimony; and if the Perſon will not obey, they cannot but excommunicate him. And by Yelverton, when that comes to them from the Biſhop to be confirmed, they cannot but walk in the Steps of the Biſhop; and a day was given to ſhew why a Prohibition ſhould not be granted: And ſo it was ruledssMich. 8. Car. C. B. John Owens Caſe. Hetley's Rep..

p. 511(17.) Dame Sherley Wife of Sr. Henry Sherley ſued in the High Commiſſion Court for Alimony; and Hit…ham moved for a Prohibition; and ſaid that Alimony is not within the Jurisdiction of the High Commiſſion; for the Court of High Commiſſion is to try Ardua Regni, which are not triable by the Common Law. Richardſon, the Power of the High Commiſſion is not de Arduis Regni, but of Hereſies, and ſuch other things Eccleſiaſtical; and he ſaid, that the Court of High Commiſſion had ſpecial words in their Commiſſion, but not in the Statute of primo; and that the Statute de primo had no Prerogative in that: And ſo the Queſtion is, if the King may by the Common Law grant ſuch a Commiſſion. Hutton ſaid, that by the ſame reaſon as he may grant ſuch a Commiſſion, they may grant Commiſſions for all other things. Yelverton, I marvel how that came within their Commiſſion: he ſaid that in tempore Jacobi, upon a debate before him, Sir Edward Cook ſo fully ſatisfied the King. And this matter of Alimony was commanded to be put out of their Commiſſion. And upon that Richardſon ſaid to Hitcham, move this again when the Court is full, for we may adviſe of this—Et adjournat. &c.ttDame Sherley's Caſe. Hetleys Rep.. One Broke was committed by the High Commiſſioners to the Fleet, becauſe he refuſed Alimony to his Wife, and that being returned upon an Habeas Corpus, he was delivered.—Broke's Caſe. More's Rep.

(18.) The Wife complains againſt her Husband in the Eccleſiſiaſtical Court Cauſa ſaevitiae, for that he gave her a Box on the Ear, and ſpit on her Face, and whirl'd her about, and called her damned Whore. Which was not by Libel, but by Verbal accuſation, after reduced to writing. The Husband denies it, and the Court ordered the Husband to give to his Wife 4 l. every Week, pro expenſis litis and Alimony. Barkley and Henden moved for a prohibition. The Suit is originally Cauſa ſaevitiae, and as a Caſe wherein they Aſſeſs Alimony. And now for a ground of a prohibition, it was ſaid that the Husband chaſtiſed his Wife for a reaſonable cauſe, as by the Law of the Land he might; which they denied, and ſaid, that they had Juriſdiction in theſe matters de ſaevitia, &c. And afterwards that the Wife departed, and that they were reconciled again. And then that reconciliation took away that Saeviti… before, as reconciliation after Elopement. Richardſon, it was ſaid here, that the Suit was without Libel, but that is no ground of a prohibition, for ſhe proceeded upon that matter reduced in Articles, and we cannot grant a Prohibition if they proceed in their Form; For we are not Judges of their Form. But if they will deny a Copy of the Libel, a Prohibition lies by the Statute. You ſay, that an Husband may give reaſonable chaſtiſement to his Wife, and we have nothing to do with it: But only that the Husband may be bound to his good behaviour p. 512by the Common Law. And the Sentence in Cauſa ſaevitiae is a menſa & thoro, and we cannot examine what is Cruelty, and what not. And certainly the matter alledged is Cruelty; for ſpitting in the Face is puniſhable in the Star-Chamber. But if the Husband had pleaded a Juſtification, and ſet forth a Provocation to him by his Wife, to give her reaſonable caſtigation, then there would be ſome colour of a Prohibition. Henden, we have made ſuch an Allegation, and it is abſolutely refuſed. Hutton, perhaps he is in Contempt, and then they will not admit any Plea; as if one be Out-lawed at Common Law he cannot bring an Action. But they adviſed the Plaintiff to tender a Juſtification, and if they refuſed it, then to move for a ProhibitionuuThe Wife of Mr. Clobery againſt her Husband. Hetley's Rep..

(19.) B. was ordered by the High Commiſſion-Court to give Alimony to his Wife, and was bound in an obligation of 300 l. to one of the Doctors there, to give her Alimony, and to uſe her as his Wife; And now he is ſued there again, and it is alledged againſt him that he had committed Adultery with divers Women, and that he had not given Alimony to his Wife, and thereupon B. was put to his Oath, who anſwered, that as to the point of Alimony he was not bound to anſwer, for that he was bound in an obligation to perform it, and alſo that he was ſued to diſcover upon his Oath the forfeiture of the Obligation; and for that the Defendant would make no other anſwer, he was committed to Priſon, and being brought hither by Habeas Corpus, the Court was prayed that he might be releaſed for the reaſon aforeſaid. Coke, Gawens Caſe which was ruled here in Wrays time, was the ſame Caſe in effect, and it was ruled that the Eccleſiaſtical Court may not examine him upon his Oath in ſuch Caſe, and per Curiam B. was Bailed till the next Term, for that that was the laſt day of the Term. Coke, for that there is an obligation taken in this Caſe, I will grant a Prohibition for taking an Obligation for that, if it be moved, and it was not well done to take the obligation to one of the Doctors, but we uſe to take the obligation in the Kings Name, Mich. 5. E. 4. B. R. Rot. 143. The Statute of 2 H. 4 gives authority to Biſhops to Fine and Impriſon for Hereſie; And where one Reſer had given a Legacy to Biſhop Stephens, for which he ſued the Executor, who being for not payment thereof Excommunicated, ſaid that he was not Excommunicated before God, although he were before Men, for his Corn grew very well; for which words he was after Impriſoned, but he was bailed here per Curiam upon an Habeas corpus, for that it was not Hereſie, becauſe that Court hath Authority to examine ſuch things which are given by the Statute of 10. H. 7. One ſaid, that the Tenth part of Tythes was not due Jure Divino, for which words he was Impriſoned, whereupon the p. 513Habeas Corpus was brought, and that depended till 14. H. 7. at which time it was adjudged that it was not Hereſie, and that the Court had Jurisdiction to examine that, it being given by Statute. And it ſeems to me that the High Commiſſion Court had not power to Fine or Impriſon for Alimony. Hill. 12. Jac. upon an Habeas Corpus by one Codd, the return was that he was Impriſoned by the High Commiſſion by that Warrant,Mich 12. Jac. B. R. Bradſtons Caſe. viz. We command you to take him and Impriſon him for manifeſt Contempt to the Court, for that he being ordered to receive his Wife, and to enter into an obligation to uſe her as his Wife, Roll's Reports.he refuſes ſo to do. Coke, he ſhall be Bail'd, for that he could not be impriſoned by them for Alimony, nor take obligation to perform their order.

Sentence was given in the Eccleſiaſtical Court,Hill. 12. Jac. B. R. Hyats Caſe. Cro. p. 2. that the Wife ſhould be ſeparated from her Husband, propter ſaevitiam of the Husband, and Alimony allowed her there: the Husband prayed a Prohibition, ſetting forth he deſired a Cohabitation, and proffered Caution thereby to uſe her fitly. The Court denied it, becauſe the Court of the Ordinary is the proper Court for allowance of Alimony.

A Libel was before the High Commiſſioners, which ſuppoſed divers cruelties uſed by the Husband againſt the Wife, for which ſhe was enforced to depart from him, who would not allow her maintenance, and therefore ſhe ſued before them for Alimony: But becauſe it is a Suit properly ſuable before the Ordinary, wherein if there be wrong, the party may have an appeal; and although it be one of the Articles within their Commiſſion to determine of; yet becauſe it is not any of the clauſes within the Stat. of 1 E. 6. for which cauſes the Commiſſion is ordained, the Court awarded a Prohibition.