question, "Si liceat homini uxore dimissa aliam ducere, adhuc illa vivente? The Bishops examined this question on Scriptural, Conciliar, and Patristic authority, and in a very long and elaborate report resolved it absolutely in the negative on all three grounds. The Council thanked GOD, gave the Bishops praise, placed their Report in extenso on the Acts, and then, (strangely enough at first sight), decided in favour of the king's request.

The explanation seems to be this. Whether or not in collusion with the king, the Council clearly referred the question to their Committee as one of divorce and re-marriage. The Report was dead against its lawfulness. The Council then seems to have silently shifted the issue, and pronounced that the marriage was null and void through the previous sin, and that the king might lawfully not marry again but marry. It was in fact a decree of nullity, not of divorce.

"Credimus non illam fuisse idoneam aut legitimam conjugem, neque a Deo præparatam uxorem.... Quocirca.. legitimum atque idoneum conjugium a Deo illi concessum non denegamus."

On the whole, then, it seems to me that the two Bishops carried the Council with them so far as to convince it that a lawful marriage is indissoluble with respect to "re-marriage; "but that this obstacle was turned by a decree of nullity. Consequently the real verdict of the Synod is, in my opinion, against such "re-marriage " (Hard. V., cols. 539-552; and Fleury XI., pp. 58 et seqq.).

(xvi.) THE COUNCIL OF WORMS (A.D. 868).

Canon 63 permits "re-marriage" to the woman in a gross and exceptional case.

"Si quis cum matre et filia in adulterio mansit

et postea ille vir si acceperit mulierem, dimittat eam, et usque in diem mortis suæ non habeat uxorem. Et illa mulier quam reliquerit accipiat virum." (Hard. V., col. 745).

Here no option seems to be given to the wife as to divorce.

(xvii.) THE COUNCIL OF TRIBUR (A.D. 895).

Canon 46 expressly prohibits the innocent husband from remarriage."

"Maritus vero, quamdiu ipsa vivat, nullo modo alteram ducat" (Hard. VI., P. 1., col. 454).

In the case supposed, however, the husband is so set on revenge as to desire to take his wife's life.

Canon 41, which supposes a very peculiar and exceptional case of incestuous adultery, where the marriage has not been consummated, appears to permit the Bishop, after penance done, to grant to at least one of the partners (and that, it would seem, the woman), "the solace of lawful marriage," Ne, dum sperantur ad alta sublevari, corruant in cœnum (Ibid., col. 452).

39 66

(xviii.) THE COUNCIL OF TROSLE (A D. 909. Trosleianum).

Concilium

Chapter or Canon 8 forbids "re-marriage," adopting St. Augustine's words.

"Si fornicata fuerit, et vir ejus voluerit, dimittenda; sed illa vivente altera non ducenda, quia adulteri regnum Dei non possidebunt, et pœni

tentia illi accipienda. Nolite vos viri habere uxores, quarum priores mariti vivunt, adulterina enim sunt illa conjugia (Hard. VI., P. 1., col. 526).

(xix.) THE COUNCIL OF BourgeS (A.D. 1031. Conc. Bituricense). Canon 16 seems indirectly to allow the innocent husband or wife to re-marry.

"Ut illi qui uxores legitimas sine culpa fornicationis dimittunt alias non accipiant illis viventibus, nec uxores viros, sed sibimet reconcilientur " (Hard. VI., P. I., col. 851).

(xx.) COUNCIL II. OF LIMOGES (A.D. 1031. Concilium Lemovicense II.)

At this Council the Canons of the one at Bourges were read and received. The two Councils were almost continuous, and consisted of nearly the same Bishops (Hard. VI., P. I., cols. 878,879. And Fleury, T. XII., p. 499). Dr. Pusey (Note on Tertullian) refers to this as if it were a distinct Canon. "Bituric. (A. 1031) Can. 16. Lemovic. ii. Can. 15. quoted by Coteler. Patr. Ap., i. p. 88)." The Council of Limoges, however, has left no Canons. Cotelerius's words are "Concilii Bituricensis in Sessione 2 Synodi Lemovicensis secunda recitati Can. xv." [Misprint, probably, for xvi.-J. W. L.] (Patr. Ap., i., p. 88, Ed. 1724).

Of these twenty Councils, then, seven allow of the "re-marriage" of the innocent, at least under some circumstances. These seven are the Councils of Vannes, of Ireland, two of Rome, of Worms, of Bourges, and the 2nd of Limoges. Twelve more or less plainly prohibit "re-marriage" —viz., The Apostolic Canons (formally received by the Trullan Council, A.D. 691), the Councils of Elvira, Arles, Carthage, Milevis, Hertford, Nantes, Friuli, Toul II., Aix III., Tribur and Trosle. One, that of Soissons, is indecisive, and so doubtful. Were I obliged to decide either way, I think that on the whole, though with much hesitation, I should consider it as virtually allowing "re-marriage." At all events it would be safer, were choice compulsory, to give the minority the benefit of the doubt.

The Council of Arles, it should be remembered, while recognizing the "prohibition," imposes no penalty in case of "re-marriage" in the teeth of urgent advice.

Perhaps I may as well consider here the evidence of the Council of Trent, though placed in a separate section of the Report of the Committee of Bishops.

There is no doubt as to the perfect accuracy of the statements of the Committee in their Report and in the note appended to it. The distinction there made was made by the Council, and deliberately. Dr. Pusey refers to it in his most valuable note on Tertullian. Van Espen significantly records the fact (Jus. Eccl. Univ., Pars II., Tit xv., c. I., S. 22), referring to Pallavicini's History of the Council, Lib. xxii., c. 4. The Council of set purpose left a loophole for those Orientals who wished to retain their traditional liberty of "re-marriage" and yet not to break away entirely from the Roman Communion.

But from Pallavicini himself we seem to get one step further. According to him, the Venetian Legates declared that these Greeks under the Venetian rule, while following in this matter their own rite, "did not cease to obey the Bishops nominated by the Sovereign Pontiff" ("tout en vivant selon leur rite, ne laissaient pas d'obéir aux évêques nommés par le Souverain Pontife" (Loc. cit., Ed. Migne). It is difficult not to gather

from this statement that the Roman Bishops, in those islands at least, connived at the practice. It may even be that they, at all events indirectly, sanctioned it through their clergy, who may have been occasionally called on to celebrate such "marriages." Be this as it may, the action of the Council was intended to be a sort of practical compromise of connivance, though the concession was in words almost infinitesimal.

I may remark in passing that, on a consideration of Van Espen's words in the place referred to, I can scarcely avoid the suspicion that his adhesion to the Tridentine ruling as to the absolute indissolubility of marriage propter adulterium, though quite explicit, was a deferential assent to the authority of what he considered to be an Ecumenical Council rather than the sincere and spontaneous verdict of his personal judgment.

No better place than this will occur for the introduction of one or two other quasi Conciliar pieces of evidence; though, as they do not emanate from strictly spiritual assemblies, I cannot rank them among true spiritual authorities.

(i.) The first is the so-called "Council of Verberie" ("Conc. Vermeriense" of the Collections, and so recognised by Dr. Pusey). It was, apparently, in reality only, as Fleury calls it, followed by Landon ("Manual of Councils," p. 674), "a National Assembly" (Assemblée de la Nation), not a true Synod; called and probably presided over by King Pepin, A.D. 753.

Canons 2, 10, 11, perhaps 12, all allow "re-marriage " to the innocent partner in cases of grievous incest. Canon 18 also in case of adultery with a wife's cousin. To this last, however, is appended "Hoc Ecclesia non recipit." In all these cases Fleury, to make the best of the matter, says "La partie innocente peut se remarier: ce qu'il faut entendre après la mort de l'autre" (Lib. xliii., c. ii., Tom. ix., p. 357). But this is an arbitrary gloss, to which neither the wording nor the general tenor of the Canons gives any support.

Others of the Canons, it must be observed, give licence unwarranted by Christianity-e.g., Canon 9. If a man is obliged to leave home by some inevitable necessity, and his wife refuses to follow him, he may take another “cum pœnitentia.” Canon 3 is altogether of a low moral tone:—

"Si quis presbyter [neptem suam ? ?] uxorem habuerit ipsam dimittat et gradum perdat. Si alius eam acceperit et ipsam a se rejiciat, si se continere non potest, aliam accipiat, quia reprehensibile est ut relictam sacerdotis alius homo habeat."

And these are not all the places that show that the permissions of this "Council" are of no great weight.

(ii.) In the Capitulary of Aix, put forth by Charlemagne, A.D. 789, by imperial authority, but containing “aliqua ex canonicis institutionibus quæ magis necessaria videbantur," Cap. xliii. repeats verbatim the prohibition of the African Councils (Nos. iv. and v. above).

B.

Consideration No. 4 of Report.

THE JUDGMENT OF THE EARLY CATHOLIC FATHERS.

(i.) HERMAS, end of First Century. He, says Dr. Pusey, "peremptorily calls" such 're-marriage' "adultery." In the Pastor (as quoted in Latin Vers. in Corp. Canon. Decr., Pars. ii., Caus. xxxiv., Q. 1 and 2, c. vii.)—

"Dimittat illam vir, et vir per se maneat. Quod si dimiserit mulierem suam, et aliam duxerit, et ipse mochatur. His actus similis est in viro et muliere" (Corp. Can., Paris, 1618, p. 393, col. 1).

(ii.) S. JUSTIN MARTYR (A.D. 140-164) says, in general, making no exceptions (Lat. Vers.) :

:

"Qui ducit repudiatam ab altero viro machatur . . . quemadmodum etiam ii qui ex lege humana duplex matrimonium ineunt [dyauías ποιούμενοι] peccatores sunt apud [Tagά] Magistrum nostrum.' (Apol. i. c. 15).

I do not feel sure whether the latter clause refers to having a legal concubine in addition to a lawful wife, or to second marriages, but probably to the latter, as these were decidedly discountenanced by the ancient Church. If so, in connection with the preceding clause it would cover the whole ground.

(iii.) ATHENAGORAS (about A.D. 177) categorically condemns all second marriages, "secundæ enim decorum adulterium." Then, quoting S. Matt. xix. 9, without the excepting clause, he adds:

"Nam qui se ipse prima uxore spoliat, etiamsi mortua sit, occulta quadam ratione est adulter, tum quod manum Dei transgrediatur.” (Leg. pro Christianis, c. 33).

This stern condemnation of all second marriages may be understood but not justified. Still it is significant and not wholly valueless.

"Now that

(iv.) S. CLEMENT OF ALEXANDRIA (about A.D. 192). the Scripture counsels marriage and allows no release from the union is expressly contained in the law, thou shalt not put away thy wife except for the cause of fornication;' and it regards as fornication the marriage of those separated while the other is alive." (Stromat., B. II., Ch. 23. Clark's Ante-Nic. Lib., Clem. Alex. ii., p. 82).

(v.) TERTULLIAN (A.D. 192-220 about) is not quite consistent. On Callia

the one hand he says:

"Dico Illum (Christum sc.) conditionaliter hunc fecisse divortii prohibitionem, si ideo quis dimittat uxorem et aliam duxerit, adulterium commisit. Et qui a marito dimissam duxerit æque adulter est, ex eadem utique causa dimissam.Manet enim matrimonium quod non rite diremptum est. Manente matrimonio nubere adulterium est. Ita si conditionaliter prohibuit dimittere uxorem, non in totum prohibuit. Et quod non in totum prohibuit, permisit." (Adv. Marc., lib. iv., c. xxxiv.)

And again in another place he says:

"Ad secunda consilia convertamur, respectu humanæ infirmitatis quarundem exemplis admonentibus, quæ divortio vel mariti excessu, oblata continentiæ occasione, non modo abjecerunt opportunitatem tanti

boni, sed ne in nubendo quidem rursum disciplinæ meminisse voluerunt, ut in Domino potissimum nuberent." (Ad. Uxor., 1. ii., c. i.)

In these passages he clearly appears to admit of the lawfulness of "re-marriage" after divorce, though in the second disapproving of it simply as a re-marriage. In Book i., c. 2, “Ad Uxor." he seems to disallow all second marriage :

“Non quidem abnuimus conjunctionem viri et fœminæ benedictam a Domino. .. unam tamen."

....

On the other hand, he elsewhere expressly denies the lawfulness of re-marriage :

"Sed illi [Romani sc.] etiam non repudiantes adulteria commiscent; nobis etsi repudiemus ne nubere quidem licebit." (De Monag, c. ix. : and see whole chapter.)

So again

"Interea et divortium prohibens, pro eo aut viduitatis perseverantiam aut reconciliationem pacis Dominico præcepto adversus mochiam procurat, quia 'Qui dimiserit uxorem præter causam mochiæ facit eam mochari, et qui dimissam a viro ducit moechatur.' Quanta remedia Spiritus Sanctus instaurat, ne id scilicet denuo admittatur quod ignosci denuo non vult." (De Pudicit., c. xvi., and whole chapter).

Once more:

Neque in Evangelio, neque ipsius Pauli Epistolis ex præcepto Dei invenias permissam matrimonii separationem. Unde unum habendum confirmatur, quia quod a Domino permissum non invenitur, id agnoscitur interdictum (De Exhort. Cast., c. iv).

دو

This second series of passages was written after Tertullian had left the Church, a consideration that much weakens their force as evidence.

(vi.) ORIGEN (A.D. 230-254) disallowed " "re-marriage Meyrick, (in Dict. Chr. Antiq.), Dr. Pusey (in his Note on Divorce, in Tertullian), and Bingham (Book xxii., chap. ii., § 12), agree in this. Meyrick says it was "in opposition to some of his contemporaries.” Dr. Pusey says Origen records that "even some Bishops permitted it in the case of women, but regards it as a concession to infirmity, as contrary to the letter" of Holy Scripture. Bingham gives Origen's words :

"Scio quosdam qui præsunt ecclesiis extra Scripturam permisisse aliquam nubere, viro priore vivente, et contra Scripturam fecerunt quidem,” &c. (Hom. VII., in Matt. xix., 8).

Bingham makes the obvious remark that the Bishops who permitted "re-marriage" "after divorce did not think it simply evil, though it was so in Origen's opinion." This is proof enough of a diversity of opinion in Origen's time, though Origen evidently thought the Bishops' view exceptional and surprising.

(vii.) LACTANTIUS (A.D. 303) according to Dr. Pusey, "Inst. vi., 23, fin., thinks Scripture admits it in the case of the man (about the woman he is silent)." The passage is quoted in a note to Cosin's "Argument "—

"Addantur illa . . . adulterum esse, qui marito dimissam duxerit, et eum qui, præter crimen adulterii, uxorem dimiserit ut alteram ducat" (Cosin's Works, Vol. iv., p. 494, note. Lib. Angl. Cath. Theol.).

(viii.) S. EPIPHANIUS (A.D. 368-403) distinctly says that "the Divine