CHAPTER I.

The Position proved by the Law of Moses.

That Law ex

pounded and asserted to a moral and charitable Use, first by Paulus Fagius, next with other Additions.

To remove therefore, if it be possible, this great and sad oppression, which through the strictness of a literal interpreting hath invaded and disturbed the dearest and most peaceable estate of household society, to the overburdening, if not the overwhelming of many Christians better worth than to be so deserted of the church's considerate care, this position shall be laid down, first proving, then answering what may be objected either from scripture or light of reason.

"That indisposition, unfitness, or contrariety of mind, arising from a cause in nature unchangeable, hindering, and ever likely to hinder the main benefits of conjugal society, which are solace and peace; is a greater reason of divorce than natural frigidity, especially if there be no children, and that there be mutual consent."

This I gather from the law in Deut. xxiv. 1: "When a man hath taken a wife and married her, and it come to pass that she find no favour in his eyes, because he hath found some uncleanness in her, let him write her a bill of divorcement, and give it in her hand, and send her out of his house," &c. This law, if the words of Christ may be admitted into our belief, shall never, while the world stands, for him be abrogated. First therefore I here set down what learned Fagius hath observed on this law: "The law of God," saith he, "permitted divorce for the help of human weakness. For every one that of necessity separates, cannot live single. That Christ denied divorce to his own, hinders not; for what is that to the unregenerate, who hath not attained such perfection? Let not the remedy be despised, which was given to weakness. And when Christ saith, who marries the divorced commits adultery, it is to be understood if he had any plot in the divorce. The rest I reserve until it be disputed, how the ma gistrate is to do herein. From hence we may plainly discern a twofold consideration in this law: first, the end of the lawgiver, and the proper act of the law, to command or to allow something just and honest, or indifferent. Secondly, his sufferance from some accidental result of evil by this allowance,

which the law cannot remedy. For if this law have no other end or act but only the allowance of sin, though never to so good intention, that law is no law, but sin muffled in the robe of law, or law disguised in the loose garment of sin. Both which are too foul hypotheses, to save the phenomenon of our Saviour's answer to the pharisees about this matter. And I trust anon, by the help of an infallible guide, to perfect such Prutenic tables, as shall mend the astronomy of our wide expositors.

The cause of divorce mentioned in the law is translated 66 some uncleanness," but in the Hebrew it sounds "nakedness of aught, or any real nakedness:" which by all the learned interpreters is referred to the mind as well as to the body. And what greater nakedness or unfitness of mind than that which hinders ever the solace and peaceful society of the married couple? And what hinders that more than the unfitness and defectiveness of an unconjugal mind?* The cause therefore of divorce expressed in the position cannot but agree with that described in the best and equallest sense of Moses's law. Which, being a matter of pure charity, is plainly moral, and more now in force than ever; therefore surely lawful. For if under the law such was God's gracious indulgence, as not to suffer the ordinance of his goodness and favour through any error to be seared and stigmatized upon his ser

* If ever the law of divorce comes to be properly considered in any civi lized country, a very great reform will be effected in society; for nothing can be more unjust or tyrannical than that law as it now stands. Having been invented and established by men, it is calculated to bear with extreme severity upon women, who are daily subjected to wrongs and hardships which they would not endure, were the relief of divorce open to them. They who take a different view, descant upon the encouragement which would, they say, be given to immorality were divorce made easy. But the contrary is the truth; and it is in behalf of morals, and for the sake of impart ing a higher tone to the feelings of society, that the present unnatural system should be abolished. Where, what Milton calls, an unconjugal mind exists, there must be unconjugal manners; and to what these lead no one need be told. Where marriage is indissoluble, people presume upon that fact to transgress its laws, which they would not do were it legally practicable to obtain immediate redress. However, there is a great indisposition in man. kind to innovate in legislation; and they had generally rather be miserable according to rule, than free and happy upon a novel principle. For this reason, all Milton's arguments have been hitherto thrown away, nor does there appear to be any likelihood that the present generation will act more wisely than those which have gone before.-ED.

vants to their misery and thraldom; much less will he suffer it now under the covenant of grace, by abrogating his former grant of remedy and relief. But the first institution will be objected to have ordained marriage inseparable. To that a little patience until this first part have amply discoursed the grave and pious reasons of this divorcive law; and then I doubt not but with one gentle stroking to wipe away ten thousands tears out of the life of man. Yet thus much I shall now insist on, that whatever the institution were, it could not be so enormous, nor so rebellious against both nature and reason as to exalt itself above the end and person for whom it was instituted.

CHAPTER II.

The first Reason of the Law grounded on the prime Reason of Matrimony. That no Covenant whatsoever obliges against the main End both of itself, and of the parties covenanting.

For all sense and equity reclaims, that any law or covenant, how solemn or strait soever, either between God and man, or man and man, though of God's joining, should bind against a prime and principal scope of its own institution, and of both or either party covenanting; neither can it be of force to engage a blameless creature to his own perpetual sorrow, mistaken for his expected solace, without suffering charity to step in and do a confessed good work of parting those whom nothing holds together but this God's joining, falsely supposed against the express end of his own ordinance. And what his chief end was of creating woman to be joined with hman, his own instituting words declare, and are infallible to inform us what is marriage, and what is no marriage; unless we can think them set there to no purpose: "It is not good," saith he, "that man should be alone. I will make him a help meet for him.” From which words, so plain, less cannot be concluded, nor is by any learned interpreter, than that in God's intention a meet and happy conversation is the chiefest and the noblest end of marriage: for we find here no expression so necessarily implying carnal knowledge, as this prevention of loneliness to the mind and spirit of man. this, Fagius, Calvin, Pareus, Rivetus, as willingly and largely assent as can be wished. And indeed it is a greater blessing

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from God, more worthy so excellent a creature as man is, and a higher end to honour and sanctify the league of marriage, whenas the solace and satisfaction of the mind is regarded and provided for before the sensitive pleasing of the body. And with all generous persons married thus it is, that where the mind and person pleases aptly, there some unaccomplishment of the body's delight may be better borne with, than when the mind hangs off in an unclosing disproportion, though the body be as it ought; for there all corporal delight will soon become unsavoury and contemptible. And the solitari. ness of man, which God had namely and principally ordered to prevent by marriage, hath no remedy, but lies under a worse condition than the loneliest single life: for in single life the absence and remoteness of a helper might inure him to expect his own comforts out of himself, or to seek with hope; but here the continual sight of his deluded thoughts, without cure, must needs be to him, if especially his complexion incline him to melancholy, a daily trouble and pain of loss, in some degree like that which reprobates feel.* Lest therefore so noble a creature as man should be shut up incurably under a worse evil by an easy mistake in that ordinance which God gave him to remedy a less evil, reaping to himself sorrow while he went to rid away solitariness, it cannot avoid to be concluded, that if the woman be naturally so of disposition, as will not help to remove, but help to increase that same Godfor bidden loneliness, which in time draws on with it a general discomfort and dejection of mind, not beseeming either Christian profession or moral conversation, unprofitable and dan. gerous to the commonwealth, when the household estate, out of which must flourish forth the vigour and spirit of all pub lic enterprises, is so ill-contented and procured at home, and cannot be supported; such a marriage can be no marriage, whereto the most honest end is wanting; and the aggrieved person shall do more manly, to be extraordinary and singular in claiming the due right whereof he is frustrated, than to piece up his lost contentment by visiting the stews, or stepping to his neighbour's bed, which is the common shift in this misfortune; or else by suffering his useful life to waste away,

* The reader will find in various passages of "Paradise Lost," Milton's ideas of love and marriage condensed into a small compass, and clothed with all the majesty of poetry.-ED.

and be lost under a secret affliction of an unconscionable size to human strength. Against all which evils the mercy of this Mosaic law was graciously exhibited.

The Ignorance and Iniquity of Canon-law, providing for the Right of the Body in Marriage, but nothing for the Wrongs de and Grievances of the Mind. An Objection, that the Mind should be better looked to before contract, answered.

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How vain, therefore, is it, and how preposterous in the canon law, to have made such careful provision against the impediment of carnal performance, and to have had no care about the unconversing inability of mind so defective to the purest and most sacred end of matrimony; and that the vessel of voluptuous enjoyment must be made good to him that has taken it upon trust, without any caution; whenas deg the mind, from whence must flow the acts of peace and love, a far more precious mixture than the quintessence of an excrement, though it be found never so deficient and unable to perform the best duty of marriage in a cheerful and agreeable conversation, shall be thought good enough, however flat and melancholious it be, and must serve, though to the eternal disturbance and languishing of him that complains! Yet wisdom and charity, weighing God's own institution, would think that the pining of a sad spirit wedded to loneliness should deserve to be freed, as well as the impatience of a sensual desire so providently relieved. It is read to us in the liturgy, that "we must not marry to satisfy the fleshly appetite, like brute beasts, that have no understanding;" but the canon so runs, as if it dreamed of no other matter than such an appetite to be satisfied; for if it happen that nature hath stopped or extinguished the veins of sensuality, that marriage is annulled. But though all the faculties of the understanding and conversing part after trial appear to be so ill and so aversely met through nature's unalterable working, as that neither peace, nor any sociable contentment can follow, it is as nothing; the contract shall stand as firm as ever, betide what will. What is this but secretly to instruct us, that however many grave reasons are pretended to the married life.