may never become spiritual law in the Province of Canterbury.

In order to keep the substance of my Report unincumbered by details, I have appended separately the more material portions of the evidence on which my opinion is based, arranged under heads following for the most part the order of the Committee's considerations; and I would ask that this evidence may be taken as a part of my Report.

October 26, 1885.

JOHN WALTER LEA.

EVIDENCE ON WHICH THE FOREGOING REPORT IS IN GREAT MEASURE BASED.

A.

Consideration No. 3 of Bishops' Committee.

THE JUDGMENT OF THE EARLY COUNCILS.

(i.) THE "APOSTOLICAL CANONS," of uncertain age, but most probably Ante-Nicene, and formally received by the Council in Trullo, A.D. 692.

Canon 48: "Si quis laicus, sua ejecta uxore, vel aliam acceperit, vel ab alio solutam, segregetur."

Mr. Meyrick, in Smith's Dictionary of Christian Antiquities (Art. Marriage, Vol. ii., p. 1112) says, this is "commonly understood " to refer only to cases of illegal divorce, and he refers to Balsamon as the authority for this gloss. Balsamon takes this view (Comment., Ed. Paris 1620, p.258). But the Canon itself is unqualified and without exception; and Balsamon's aim throughout his Commentaries is so obviously to reconcile quocunque modo all laws ecclesiastical and imperial, ancient or more recent, that little weight can, I think, be attached to arbitrary glosses many centuries later than the Canons.

It is also remarkable that it is in the so-called "unchanging East" that we find the clearest evidence of the early depravation of Christian morality on these subjects. Of this we shall meet with other instances.

Neither Van Espen, Beveridge, nor Johnson suggests any qualification of the plain words of the Canon; and I can see no reason for not accepting it absolutely, as it stands. Hefele's remark is simply, "The same rule was given by the eighth and tenth Canons of Elvira, and by the tenth of Arles. Drey reckons this Canon among the most ancient. Its source is unknown." (Counc., Vol. I., p. 478, 2nd Engl. Ed.)

(ii.) THE COUNCIL OF ELVIRA (A.D. 305 or 306, Hefele; 313 Hardouin). Canons 8, 9, 10.

Canon 8:"Item fœminæ quæ, nulla præcedente causa, reliquerint viros suos, et se copulaverint alteris, nec in fine accipiant communionem."

Canon 9: "Item fidelis fœmina quæ adulterum maritum reliquerit fidelem, et alterum ducit, prohibeatur ne ducat; si autem duxerit, non prius accipiat Communionem, nisi quem reliquerit prius de sæculo exierit; nisi forte necessitas infirmitatis dare compulerit." "'*

Canon 10: "Si ea quam catechumenus reliquit duxerit maritum, potest ad fontem lavacri admitti. Hoc et circa fœminas catechumenas erit observandum. Quod si fuerit fidelis quæ ducitur ab eo qui uxorem inculpatam reliquit, et cum scierit illum habere uxorem quam sine causa reliquit, placuit huic nec in finem dandam esse communionem " (Hard., Tom. I., col. 251).

There is a slight uncertainty as to the reading of the last part of Canon 10, some omitting the "nec" in the final clause. Hefele observes that Canons 9 and 10 have given much trouble to commentators; and his own explanation should be consulted (Vol. I., pp. 141-2, 2nd Eng. Ed.). He considers that the latter part of Canon 10 really belongs to Canon II.

What the Canons 10 and II seem to me to prescribe is this :—(a) If a catechumen, male or female, leave a heathen partner, and that partner marry again and be converted, baptism is not to be denied. (b) But if a catechumen leave a blameless heathen wife and marry a Christian woman who is aware of that fact, she is not to communicate even at death; or, according to the other reading, not until the point of death. (c) Then, for Canon II, If a female catechumen have married a catechumen under the like circumstances, her baptism is to be deferred for five years, except in extreme peril of death. Both Canons, I think, relate only to the discipline of catechumens, except in the one instance where the contrary is expressly stated. After all they remain, perhaps, a little obscure. But Canons 8 and 9 are plain enough.

Mr. Meyrick says that Canon 10, as usually read, “implies that the man who separates from her [his wife] with sufficient cause might marry again" (Dict. Ch. A, loc. citat.); but I cannot accept this view of the Canon; which, moreover, is not speaking of Christian but of heathen marriages.

Here I venture to interpose two general observations, which I make once for all:

(a.) That though the Canons may frequently mention one sex only, it must be taken as a rule that whatever is lawful or unlawful for one sex is equally so for the other. So says S. Basil as the Word of the Lord (Ad Amphil., Can. ix., apud Bals., p. 943, Paris, 1620). And S. Jerome, "Apud nos, quod non licet fœminis æque non licet viris, et eadem servitus pari conditione censetur " (De Mort. Fabiol.; in Corp. Canon. Decret., 2nd Part, Caus. xxxiii., Q. v., c. 20). And Innocent I "Christiana religio adulterium in utroque sexu pari ratione condemnat" (Ad Exuper. ; Corp. Can., Ibid., c. xxiii.)

(6.) That Christian Marriage does not stand on quite the same footing with heathen unions, which being formed in ignorance of the primal law, and usually under conditions not agreeing therewith, are not necessarily subject to the full stringency of the Christian law, and may, perhaps, in some cases be voidable, as certainly in their polygamous or incestuous relations.

* By this I suppose mortal sickness to be meant.

(iii.) THE COUNCIL OF ARLES (A.D. 314).

Canon 10: "De his qui conjuges suas in adulterio deprehendunt, et iidem sunt adolescentes fideles, et prohibentur nubere, placuit ut in quantum possit consilium eis detur ne viventibus uxoribus suis, licet adulteris, alias accipiant."

This Canon has been represented by some as if it were only a "counsel." "No yoke of compulsion was laid upon them," says Meyrick. Dr. Pusey says the Council"advises against re-marriage in such cases, does not forbid it" (Note on Tertullian, Vol. I., p. 432, "Library of the Fathers"). Hefele, "The man is only strongly advised not to marry again" (Vol. I., p. 190). In a certain sense this is so, but the preceding words, "et prohibentur nubere," show that the prohibition was not removed. Hefele remarks:-" The Council will not allow that which has been forbidden, but only abstains from imposing ecclesiastical penance." He adds, "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 therefore there might be more extenuation for his fault.

This Canon, therefore, evidences three things. First, that innocent husbands were forbidden to "re-marry," and must be urged not to do so; but, secondly, that if they did, they were not, so far as appears, to be deprived of Communion. Thirdly, that their wives, though adulterous, were their wives as long as they lived.

Petavius boldly conjectured that the reading should be "et non prohibentur nubere ; " but this is too arbitrary an inversion to be of any value. Cotelerius disallows it, though he hardly speaks as if he thought the prohibition pointed to the law of CHRIST or the Church.

Mr. Meyrick refers to Canon 69 of the Fourth Council of Carthage, A.D. 398, in which he says that "the clergy are forbidden to be married to a divorced woman," as "implying that under some circumstances at least a divorced woman might be married." I do not think this fairly warranted by the Canon. It is not strictly a Canon on marriage at all, but on Ordination (See Hard. I., col. 983). As such, it simply has to do with facts. It decrees that if a Bishop shall knowingly ordain as cleric one (thitherto, therefore, no cleric) who had married a widow, a divorced woman, or a second wife, that Bishop shall be deprived of his Episcopal right to ordain. No reason is given for any of the prohibitions, so that from the Canon we cannot assume that any of these marriages was in itself either lawful or unlawful.

(iv.) COUNCIL of Carthage (A.D. 407).

Canon 8 (In Codex African. Can. 102). "Placuit, ut secundum Evangelicam et Apostolicam disciplinam, neque dimissus ab uxore, neque dimissa a marito, alteri conjugatur; sed ita maneant, aut sibimet reconcilientur: quod si contempserint, ad pœnitentiam redigantur." (Hard. I. col. 923).

(v.) COUNCIL OF MILEVIS (about A.D. 416).

Canon 17 re-enacts the above verbatim.

(vi.) THE COUNCIL OF VANNES (Conc. Veneticum, A.D. 465). Canon 2 virtually permits the "re-marriage" of the innocent husband. "Eos... qui relictis uxoribus suis, sicut in Evangelio dicitur, exceptâ

causâ fornicationis, sine adulterii probatione, alias duxerint, statuimus a communione arcendos, ne per indulgentiam nostram prætermissa peccata alios ad licentiam erroris invitent." (Hard. T. II., col. 797).

(vii.) THE COUNCIL OF HERTFORD (A.D. 673).

Canon 10: "Nullus conjugem propriam, nisi, ut sanctum evangelium docet, fornicationis causa relinquat. Quod si quisquam propriam expulerit conjugem legitimo sibi matrimonio conjunctam, si Christianus esse recte voluerit, nulli alteri copuletur, sed ita permaneat, aut propriæ reconcilietur conjugi" (Haddan and Stubbs, Councils, Vol. III., p. 120).

Mr. Meyrick, in a note, calls this "rather a counsel than a rule of universal obligation"; and so it is in form; but it is a ❝ counsel " under such a sanction as raises it to the rank of a Christian law.

(viii.) THE COUNCIL OF NANTES, of uncertain date, introduced by Hardouin about the end of the ninth century; but, Meyrick says, 'supposed by some to have been held in the year 658."

Canon 12: "Si cujus uxor adulterium perpetravit, et hoc a viro deprehensum fuerit et publicatum, dimittat uxorem, si voluerit, propter fornicationem ; illa vero septem annis publice poeniteat. Vir vero ejus illa vivente nullatenus aliam accipiat. Quod si voluerit adulteram sibi reconciliare, licentiam habeat; ita tamen ut pariter cum illa pœnitentiam agat, et exacta pœnitentia post septem annos ad communionem uterque accedat. Similis forma et in muliere servabitur, si eam vir ejus adulteravit" (Hard. VI., cols. 459-60).

(ix.) IRISH SYNOD, of uncertain date. attributed by some to S. Patrick, but not by Haddan and Stubbs (Councils, Vol. II., Part 2, P. 333).

Canon 26 expressly allows divorce a vinculo and the re-marriage of the innocent husband.

"Audi Dominum dicentem 'Non licet viro dimittere uxorem, nisi ob causam fornicationis.' Ac si dicat, Ob hanc causam. Unde, si ducat alteram, velut post mortem prioris, non vetant" (Ibid., p. 337).

(x.) THE COUNCIL OF SOISSONS (A.D. 744).

Canon 9: "Statuimus ut nullus, &c. . . . nec marito vivente suam mulierem alius accipiat, nec mulier vivente suo viro alium accipiat; quia maritus mulierem suam non debet dimittere, excepta causa fornicationis deprehensa" (Hard. III., col. 1934).

I am not quite sure on which side this Canon should be placed, for while on the one hand, with divorce for adultery full in view, it forbids either husband or wife to marry another during their joint lives, on the other hand it gives a reason which might seem to admit of that one exception; though, again, this may import no more than that, save for this one cause, husband and wife ought not to be separated. On the whole I am inclined to consider this evidence as indecisive either way.

(xi.) COUNCIL OF FRIULI (C. Forojuliense. A.D. 791).

Capitulum X. expressly forbids the innocent husband to "re-marry," even though it allows that, in some sense at all events, the vinculum is dissolved.

"Placuit ut resoluto fornicationis causa jugali vinculo, non liceat viro, quamdiu adultera vivit, aliam uxorem ducere, licet sit illa adultera."

This decree is all the more interesting from the fact that the Council made particular inquiry as to whether the Lord's words in S. Matt. xix, 9, permit re-marriage as well as divorce, and decided in the negative, supporting their ruling by the authority of S. Jerome.

Their resolution is, "Etsi legatur in sacris Evangelis paginis sola fornicationis causa dixisse Dominum dimittere virum uxorem suam, non tamen legitur concessisse aliam, vivente illa, in conjugio sibi sociare: prohibuisse quidem modis omnibus non ambigitur." S. Jerome's arguments, however, as quoted by the Council, do not rise much above grounds of expediency (Hard. IV., cols. 859, 860).

(xii) COUNCIL OF ROME under Eugenius II. (A.D. 826).

Canon 36 plainly allows the "re-marriage" of the innocent husband. "Nalli liceat excepta causa fornicationis adhibitam uxorem relinquere et deinde aliam copulare; alioquin transgressorem priori convenit sociari conjugio." (Vid. under next Council for Ref.)

(xiii.) ANOTHER COUNCIL OF Rome (a.d. 853), under Leo IV. deliberately confirmed all the Canons of the preceding; making additions to many of them, Canon 36 among others, but leaving its words unaltered (Hard V., cols. 69, 73, 83).

It is easy to understand why Hardouin marked this Canon in his Index as one to be read with caution. Its meaning is, however, perfectly plain and not to be evaded.

(xiv.) THE SECOND COUNCIL OF TOUL (C. Tullense, A.D. 860).

A letter was written by order of the Council by Hincmar, Archbishop of Rheims, to the Metropolitans of Aquitaine, strongly denying the liberty of re-marriage after divorce. The main argument was Sacramental, following the analogy of Baptism. It contains such passages as the following:

"Quod est in Christo et in Ecclesia magnum, hoc in singulis quibusque viris atque uxoribus minimum, sed tamen conjunctionis inseparabilis sacramentum. Quapropter legaliter et nuptialiter copulati excepta causa fornicationis separari non possunt; et causa fornicationis separati, aut permanere innupti, aut mutuo debent reconciliari, sicut Evangelica et Apostolica docet auctoritas, et Africana Synodus definivit.” And again :

"Liquido demonstratur quia sicut semel acceptum baptismi sacramentum, quo quisque fidelis in unitate Catholicæ Ecclesiæ Christi incorporatur, postea nulla interveniente causa amittitur, sic et vinculum conjugale, legaliter et nuptialiter celebratum, indissolubiliter manet connexum, licet fornicationis causa vel quacumque de causa videatur separatum. Causa vero fornicationis separatum, si post pœnitentiam fuerit reunitum, non tamen ideo erit reiteratum, quia permanet unum (Hard. V., cols. 521, 538).

(xv.) THE COUNCIL OF AIX (C. Aquisgranense III., A.D. 862. In the matter of Lothair and Theutberga his wife).

A remarkable Council. Lothair, charging his wife with pre-nuptial incest, prayed for leave to marry another. There seems to be ground for doubting the truth of the charge, though the queen herself confessed it. There is also reason for suspecting a certain amount of collusion with the king on the part of some leading members of the Council. However that may have been, the Council referred to a Committee of two Bishops the