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turing to pierce with our free thoughts into the full latitude of nature and religion, abandon ourselves to serve under the tyranny of "surped opinions; suffering those ordinances which were allotted to our solace and reviving, to trample over us, and hale us into a multitude of sorrows, which God never meant us. And where he sets us in a fair allowance of way, with honest liberty and prudence to our guard, we never leave subtilizing and casuisting till we have straightened and pared that liberal path into a razor's edge to walk on; between a precipice of unnecessary mischief on either side, and starting at every false alarmn, we do not know which way to set a foot forward with manly confidence and Christian resolution, through the confused ringing in our ears of panic scruples and amazements.
That the matter of divorce is not to be tried by law, but by conscience, as many other sins are. The magistrate can only see that the condition of the divorce be just and equal. The opinion of Fagius, and the reasons of this assertion.
ANOTHER act of papal encroachment it was, to pluck the power and arbitrement of divorce from the master of the family, into whose hands God and the law of all nations had put ít, and Christ so left it, preaching only lo the conscience, and not authorizing a judicial court to toss about and divulge the unaccountable and secret reason of disaffection between man and wife, as a thing most improperly answerable to any such kind of trial. But the popes of Rome, perceiving the great revenue and high authority it would give them even over princes, to have the judging and deciding of such a main consequence in the life of man as was divorce; wrought so upon the superstition of those ages, as to divest them of that right, which God from the beginning had entrusted to the husband: by which means they subjected that ancient and naturally domestic prerogative to an external and unbefitting judicature. For although differences in divorce about dowries, jointures, and the like, besides the punishing of adultery, ought not to pass without referring, if need be, to the magistrate; yet that the absolute and final hindering of divorce cannot belong to any civil or earthly power, against the will and consent of both parties, or of the husband alone, some reasons will be here urged as shall not need to decline the touch. But first I shall recite what hath been already yielded by others in favour of this opinion. Grotius and many more agree, that notwithstanding what Christ spake therein to the conscience, the magistrate is not thereby enjoined aught against the preservation of civil peace, of equity, and of convenience. And among these Fagius is most remarkable, and gives the same liberty of pronouncing divorce to the Christian magistrate as the Mosaic had. "For whatever," saith he, "Christ spake to the regenerate, the judge hath to deal with the vulgar: if therefore any through hardness of heart will not be a tolerable wife to her husband, it will be lawful as well now as of old to pass the bill of divorce, not by private but by public authority. Nor doth man separate them then, but God by his law of divorce given by Moses. What can hinder the magistrate from so doing, to whose government all outward things are subject, to separate and remove from perpetual vexation, and no small danger, those bodies whose minds are already separate; it being his office to procure peaceable and convenient living in
the commonwealth; and being as certain also, that they so necessarily separated cannot all receive a single life?" And this I observe, that our divines. do generally condemn separation of bed and board, without the liberty of second choice; if that therefore in some cases be most purely necessary, (as who so blockish to deny ?) then is this also as needful. Thus far by others is already well stepped, to inform us that divorce is not a matter of law, but of charity: if there remain a furlong yet to end the question, these following reasons may serve to gain it with any apprehension not too unlearned or too wayward. First, because ofttimes the causes of seeking divorce reside so deeply in the radical and innocent affections of nature, is not within the diocese of law to tamper with. Other relations may aptly enough be held together by a civil and virtuous love: but the duties of man and wife are such as are chiefly conversant in that love which is most ancient and merely natural, whose two prime statutes are to join itself to that which is good, and acceptable, and friendly; and to turn aside and depart from what is disagreeable, displeasing, and unlike: of the two this latter is the strongest, and most equal to be regarded; for although a man may often be unjust in seeking that which he loves, yet he can never be unjust or blameable in retiring from his endless trouble and distaste, when as his tarrying can redound to no true content on either side. Hate is of all things the mightiest divider, nay is division itself. To couple hatred therefore, though wedlock try all her golden links, and borrow to her aid all the iron manacles and fetters of law, it does but seek to twist a rope of sand, which was a task they say that posed the devil: and that sluggish fiend in hell, Ocnus, whom the poems tell of, brought his idle cordage to as good effect, which never served to bind with, but to feed the ass that stood at his elbow. And that the restrictive law against divorce attains as little to bind any thing truly in a disjointed marriage, or to keep it bound, but serves only to feed the ignorance and definitive impertinence of a doltish canon, were no absurd allusion. To hinder therefore those deep and serious regresses of nature in a reasonable soul, parting from that mistaken help, which he justly seeks in a person created for him, recollecting himself from an unmeet help which was never meant, and to detain him by compulsion in such an unpredestined misery as this, is in diameter against both nature and institution: but to interpose a jurisdictive power over the inward and irremediable disposition of man, to command love and sympathy, to forbid dislike against the guiltless instinct of nature, is not within the province of any law to reach; and were indeed an uncommodious rudeness, not a just power: for that law may bandy with nature, and traverse her sage motions, was an error in Callicles the rhetorician, whom Socrates from high principles confutes in Plato's Gorgias. If therefore divorce may be so natural, and that law and nature are not to go contrary; then to forbid divorce compulsively, is not only against nature, but against law.
Next it must be remembered, that all law is for some good, that may be frequently attained without the admixture of a worse inconvenience; and therefore many gross faults, as ingratitude and the like, which are too far within the soul to be cured by constraint of law, are left only to be wrought on by conscience and persuasion. Which made Aristotle, in the 10th of his Ethics to Nicomachus, aim at a kind of division of law into private or persuasive, and public or compulsive. Hence it is, that the law forbidding divorce never attains to any good end of such prohibition, but rather multiplies evil. For if nature's resistless sway in love or hate be once compelled, it grows careless of itself, vicious, useless to friends, unserviceable and spiritless to the commonwealth. Which Moses rightly foresaw, and
all wise lawgivers that ever knew man, what kind of creature he was. The parliament also and clergy of England were not ignorant of this, when they consented that Harry the VIII. might put away his queen Anne of Cleve, whom he could not like after he had been wedded half a year; unless it were that, contrary to the proverb, they made a necessity of that which might have been a virtue in them to do: for even the freedom and eminence of man's creation gives him to be a law in this matter to himself, being the head of the other sex which was made for him: whom therefore though he ought not to injure, yet, neither should he be forced to retain in society to his own overthrow, nor to hear any judge therein above himself. It being also an unseemly affront to the sequestered and veiled modesty of that sex, to have her unpleasingness and other concealments bandied up and down and aggravated in open court by those hired masters of tongue-fence. Such uncomely exigences it befel no less a majesty than Henry the VIII. to be reduced to, who, finding just reason in his conscience to forego his brother's wife, after many indignities of being deluded, and made a boy of by those his two cardinal judges, was constrained at last, for want of other proof, that she had been carnally known by prince Arthur, even to uncover the nakedness of that virtuous lady, and to recite openly the obscene evidence of his brother's chamberlain. Yet it pleased God to make him see all the tyranny of Rome, by discovering this which they exercised over divorce, and to make him the beginner of a reformation to this whole kingdom, by first asserting into his familiary power the right of just divorce. It is true, an adulteress cannot be shamed enough by any public proceeding; but the woman whose honour is not appeached is less injured by a silent dismission, being otherwise not illiberally dealt with, than to endure a clamouring debate of utterless things, in a business of that civil secrecy and difficult discerning, as not to be overmuch questioned by nearest friends. Which drew that answer from the greatest and worthiest Roman of his time, Paulus Emilius, being demanded why he would put away his wife for no visible reason? "This shoe," said he, and held it out on his foot, "is a neat shoe, a new shoe, and yet none of you know where it wrings me;" much less by the. unfamiliar cognizance of a feed gamester can such a private difference be examined, neither ought it.
Again, if law aim at the firm establishment and preservation of matrimonial faith, we know that cannot thrive under violent means, but is the more violated. It is not when two unfortunately met are by the canon forced to draw in that yoke an unmerciful day's work of sorrow till death unharness them, that then the law keeps marriage most unviolated and unbroken; but when the law takes order, that marriage be accountant and responsible to perform that society, whether it be religious, civil, or corporal, which may be conscionably required and claimed therein, or else to be dissolved if it cannot be undergone. This is to make marriage most indissoluble, by making it a just and equal dealer, a performer of those due helps, which instituted the covenant; being otherwise a most unjust contract, and no more to be maintained under tuition of law, than the vilest fraud, or cheat, or theft, that may be committed. But because this is such a secret kind of fraud or theft, as cannot be discerned by law but only by the plaintiff himself; therefore to divorce was never counted a political or civil offence, neither to Jew nor Gentile, nor by any judicial intendment of Christ, further than could be discerned to transgress the allowance of Moses which was of necessity so large, that it doth all one as if it sent back the matter undeterminable at law, and intractable by rough dealing, to have instructions and admonitions bestowed about it by them whose spiritual office is to adjure
and to denounce, and so left to the conscience. The law can only appoint the just and equal conditions of divorce, and is to look how it is an injury to the divorced, which in truth it can be none, as a mere separation; for if she consent, wherein has the law to right her? or consent not, then is it either just, and so deserved; or if unjust, such in all likelihood was the divorcer: and to part from an unjust man is a happiness, and no injury to be lamented. But suppose it to be an injury, the law is not able to amend it, unless she think it other than a miserable redress, to return back from whence she was expelled, or but entreated to be gone, or else to live apart still married without marriage, a married widow. Last, if it be to chasten the divorcer, what law punishes a deed which is not moral but natural, a deed which cannot certainly be found to be. an injury; or how can it be punished by prohibiting the divorce, but that the innocent must equally partake both in the shame and in the smart? So that which way soever we look, the law can to no rational purpose forbid divorce, it can only take care that the conditions of divorce be not injurious. Thus then we see the trial of law, how impertinent it is to this question of divorce how helpless next, and then how hurtful.
The last reason why divorce is not to be restrained by law, it being against the law of nature and of nations. The larger proof whereof referred to Mr. Selden's book, "De Jure Naturali et Gentium." An objection of Paraus answered. How it ought to be ordered by the church. That this will not breed any worse inconvenience, nor so bad as is now suffered.
THEREFORE the last reason, why it should not be, is the example we have, not only from the noblest and wisest commonwealths, guided by the clearest light of human knowledge, but also from the divine testimonies of God himself, lawgiving in person to a sanctified people. That all this is true, whoso desires to know at large with least pains, and expects not here overlong rehearsals of that which is by others already so judiciously gathered; let him hasten to be acquainted with that noble volume written by our learned Selden, "Of the Law of Nature and of Nations," a work more useful and more worthy to be perused by whosoever studies to be a great man in wisdom, equity, and justice, than all those "decretals and sumless sums," which the pontifical clerks have doted on, ever since that unfortunate mother famously sinned thrice, and died impenitent of her bringing into the world those two misbegotten infants, and for ever infants, Lombard and Gratian, him the compiler of canon iniquity, the other the Tubalcain of scholastic sophistry, whose overspreading barbarism hath not only infused their own. bastardy upon the fruitfullest part of human learning, not only dissipated and dejected the clear light of nature in us, and of nations, but hath tainted also the fountains of divine doctrine, and rendered the pure and solid law of God unbeneficial to us by their calumnious dunceries. Yet this law, which their unskilfulness hath made liable to all ignominy, the purity and wisdom of this law shall be the buckler of our dispute. Liberty of divorce we claim not, we think not but from this law; the dignity, the faith, the authority thereof is now grown among Christians, O astonishment! a labour of no mean difficulty and envy to defend. That it should not be counted a faultering dispense, a flattering permission of sin, the bill of adultery, a snare, is the expense of all this apology. And all that we solicit is, that it
may be suffered to stand in the place where God set it, amidst the firmament of his holy laws, to shine, as it was wont, upon the weaknesses and errors of men, perishing else in the sincerity of their honest purposes: for certain there is no memory of whoredoms and adulteries left among us now, when this warranted freedom of God's own giving is made dangerous and discarded for a scroll of license. It must be your suffrages and votes, O Englishmen, that this exploded deeree of God and Moses may scape and come off fair, without the censure of a shameful abrogating: which, if yonder sun ride sure, and means not to break word with us to-morrow, was never yet abrogated by our Saviour. Give sentence if you please, that the frivolous canon may reverse the infallible judgment of Moses and his great director. Or if it be the reformed writers, whose doctrine persuades this rather, their reasons I dare affirm are all silenced, unless it be only this. Paræus on the Corinthians would prove, that hardness of heart in divorce is no more now to be permitted, but to be amerced with fine and imprisonment. I am not willing to discover the forgettings of reverend men, yet here I must: what article or clause of the whole new covenant can Paræus bring, to exasperate the judicial law upon any infirmity under the gospel? I say infirmity, for if it were the high hand of sin, the law as little would have endured it as the gospel; it would not stretch to the dividing of an inheritance; it refused to condemn adultery, not that these things should not be done at law, but to show that the gospel hath not the least influence upon judicial courts, much less to make them sharper and more heavy, least of all to arraign before a temporal judge that which the law without summons acquitted. "But," saith he, "the law was the time of youth, under violent affections; the gospel in us is mature age, and ought to subdue affections." True, and so ought the law too, if they be found inordinate, and not merely natural and blameless. Next I distinguish, that the time of the law is compared to youth and pupilage in respect of the ceremonial part, which led the Jews as children through corporal and garish rudiments, until the fulness of time should reveal to them the higher lessons of faith and redemption. This is not meant of the moral part; therein it soberly concerned them not to be babies, but to be men in good earnest : the sad and awful majesty of that law was not to be jested with: to bring a bearded nonage with lascivious dispensations before that throne, had been a lewd affront, as it is now a gross mistake. But what discipline is this, Paræus, to nourish violent affections in youth, by cockering and wanton indulgences, and to chastise them in mature age with a boyish rod of correction? How much more coherent is it to Scripture, that the law as a strict schoolmaster should have punished every trespass without indulgence so baneful to youth, and that the gospel should now correct that by admonition and reproof only, in free and mature age, which was punished with stripes in the childhood and bondage of the law? What therefore it allowed then so fairly, much less is to be whipped now, especially in penal courts: and if it ought now to trouble the conscience, why did that angry accuser and condemner law reprieve it? So then, neither from Moses nor from Christ hath the magistrate any authority to proceed against it. But what, shall then the disposal of that power return again to the master of a family? Wherefore not, since God there put it, and the presumptuous canon thence bereft it? This only must be provided, that the ancient manner be observed in the presence of the minister and other grave selected elders, who after they shall have admonished and pressed upon him the words of our Saviour, and he shall have protested in the faith of the eternal gospel, and the hope he has of happy resurrection, that otherwise than thus