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him who purposely departs; and leaves it as lawful to depast from him who urgently requires a wicked thing, though professing the same religion, as from him who urges a heathenish or superstitious compliance in a different faith. For, if there be such necessity of our abiding, we ought rather to abide the utmost for religion than for any other cause; seeing both the cause of our stay is pretended our religion to marriage, and the cause of our suffering is supposed our constant marriage to religion. Beza, therefore, by his own definition of a deserter, justifies a divorce from any wicked or intolerable conditions rather in the same religion than in a different.
Aretius, a famous divine of Bern, approves many causes of divorce in his “ Problems," and adds, “ that the laws and consistories of Switzerland approve them also.” As first “adultery, and that not actual only, but intentional ;" alleging Matthew V.,
“Whosoever looketh to lust, hath committed adultery already in his heart. Whereby,” saith he, “our Saviour shews, that the breach of matrimony may be not only by outward act, but by the heart and desire; when that hath once possessed, it renders the conversation intolerable, and commonly the fact follows.” Other causes, to the number of nine or ten, consenting in most with the imperial laws, may be read in the author himself, who avers them to be “grave and weighty.” All these are men of name in divinity; and to these, if need were, might be added more. Nor have the civilians been all so blinded by the canon as not to avouch the justice of those old permissions touching divorce.
Alciat of Milain, a man of extraordinary wisdom and learning, in the sixth book of his “Parerga,” defends those imperial laws, “not repugnant to the gospel" as the church then interpreted. “For," saith he, “the ancients understood him separate by man, whom passions and corrupt affections divorced, not if the provincial bishops first heard the matter, and judged, as the council of Agatha declares :" and on some part of the Code he names Isidorus Hispalensis, the first computer of canons, to be in the same mind.” And in the former place gives his opinion, " that divorce might be more lawfully permitted than usury.'
Corasius, recorded by Helvicus among the famous lawyers, hath been already cited of the same judgment.
Wesembechius, a much-named civilian, in his comment on this law, defends it, and affirms, “ That our Saviour excluded not other faults equal to adultery; and that the word foriication signifies larger among the Hebrews than with us, comprehending every fault which alienates from him to whom obedience is due; and that the primitive church interpreted
Grotius, yet living, and of prime note among learned men, retires plainly from the canon to the ancient civility, yea, to the Mosaic law, as being most just and undeceivable.” On the 5th of Matth. he saith, “ That Christ made no civil laws, but taught us how to use law: that the law sent not a husband to the judge about this matter of divorce, but left him to his own conscience ; that Christ, therefore, cannot be thought to send him; that adultery may be judged by a vehement suspicion; that the exception of adultery seems an example of other like offences ;” proves it “ from the manner of speech, the maxims of law, the reason of charity, and common equity.”
These authorities, without long search, I had to produce, all excellent men, some of them such as many ages had brought forth none greater: almost the meanest of them might deserve to obtain credit in a singularity : what might not then all of them joined in an opinion so consonant to reason? For although some speak of this cause, others of that, why divorce may be, yet all agreeing in the necessary enlargement of that textual straitness, leave the matter to equity, not to literal bondage; and so the opinion closes. Nor could I have wanted more testimonies, had the cause needed a more solicitous inquiry. But herein the satisfaction of others hath been studied, not the gaining of more assurance to mine own persuasion: although authorities contributing reason withal be a good confirmation and a welcome. But God (I solemnly attest him!) withheld from my knowledge the consenting judgment of these men so late, until they could not be my instructors, but only iny unexpected witnesses to partial men, that in this work I had not given the worst experiment of an industry joined with integrity, and the free
nce, though of an unpopular truth. Which yet to the people of England may, if God so please, prove a memorable informing ; certainly a benefit which was intended them long
since by men of highest repute for wisdom and piety, Buces and Erasmus. Only this one authority more, whether in place or out of place, I am not to omit, which if any car think a small one, I must be patient; it is no smaller than the whole assembled authority of England both church and state, and in those times which are on record for the purest and sincerest that ever shone yet on the reformation of this islandthe time of Edward the Sixth. That worthy prince, having utterly abolished the canon law out of his dominions, as his father did before him, appointed by full vote of parliament a committee of two-and-thirty chosen men, divines and lawyers, of whom Cranmer the archbishop, Peter Martyr, and Walter Haddon, (not without the assistance of Sir John Cheeke, the king's tutor, a man at that time counted the learnedest of Englishmen, and for piety not inferior,) were the chief, to frame anew some ecclesiastical laws, that might be instead of what was abrogated. The work with great diligence was finished, and with as great approbation of that reforming age wa ceived; and had been doubtless, as the learned preface thereof testifies, established by act of parliament, had not the good king's death, so soon ensuing, arrested the further growth of religion also, from that season to this. Those laws, thus founded on the memorable wisdom and piety of that religious parliament and synod, allow divorce and second marriage, * not only for adultery or desertion, but for any capital enmity or plot laid against the other's life, and likewise for evil and fierce usage:” nay, the twelfth chapter of that title by plain consequence declares, “ that lesser contentions, if they be perpetual, may obtain divorce:” which is all one really with the position by me held in the former treatise published on this argument, herein only differing, that there the cause of perpetual strife was put for example in the unchangeable discord of some natures, but in these laws intended us by the best of our ancestors, the effect of continual strife is determined no unjust plea of divorce, whether the cause be natural or wilful. Whereby the wariness and deliberation, from which that discourse proceeded, will appear, and that God hath aided us to make no bad conclusion of this point; seeing the opinion, which of late hath undergone ill censures among the vulgar, hath now proved to have done no violence to scripture, unless all these famous authors alleged have done the
like; nor hath affirmed aught more than what indeed the most nominated fathers of the church, both ancient and modern, are unexpectedly found affirming; the laws of God's peculiar people, and of primitive Christendom found to have practised, reformed churches and states to have imitated, and especially the most pious church-times of this kingdom to have framed and published, and, but for sad hinderances in the sudden change of religion, had enacted by the parliament. Henceforth let them, who condemn the assertion of this book for new and licentious, be sorry ; lest, while they think to be of the graver sort, and take on them to be teachers, they expose themselves rather to be pledged up and down by men who intimately know them, to the discovery and contempt of their ignorance and presumption.
A REPLY TO A NAMELESS ANSWER AGAINST THE DOC.
TRINE AND DISCIPLINE OF DIVORCE.
WHEREIN THE TRIVIAL AUTHOR OF THAT ANSWER IS DISCOVERED, TIE LICENSER COS.
FERRED WITH, AND THE OPINION, WHICH THEY TRADUCE, DEFENDED.
Prov. xxvi. 5.
“Answer a fool according to his folly, lest he be wise in his own conceit."
[FIRST PUBLISHED 1645,]
AFTER many rumours of confutations and convictions, forthcoming against the Doctrine and Discipline of Divorce, and now and then a hy-blow from the pulpit, feathered with a censure strict indeed, but how true, more beholden to the authority of that devout place, which it borrowed to be uttered in, than to any sound reason which it could oracle; while I still hoped as for a blessing to see some piece of diligence, or learned discretion, come from them, it was my hap at length, lighting on a certain parcel of queries, that seek and find not, to find not seeking, at the tail of anabaptistical, antinomian, heretical, atheistical epithets, a jolly slander, called “ Divorce at Pleasure." I stood awhile and wondered, what we might do to a man's heart, or what anatomy use, to find in it sincerity ; for all wonted marks every day fail us, and where we thought it was, we see it is not, for alter and change residence it cannot sure. And yet I see no good of body or of mind secure to a man for all his past labours, without perpetual watchfulness and perseverance: whenas one above others, who hath suffered much and long in the defence of truth, shall after all this give her cause to leave him so destitute and so vacant of her defence, as to yield his mouth to be the common road of truth and falsehood, and such falsehood as is joined with a rash and heedless calumny of his neighbour. For what book hath he ever met with, as his complaint is,“ printed in the city," maintaining either in the title, or in the whole pursuance, “ Divorce at Pleasure?” It is true, that to divorce upon extreme necessity, when through the perverseness, or the apparent unfitness of either, the continuance can be to both no good at all, but an intolerable injury and temptation to the wronged and the defrauded; to divorce then, there is a book that writes it lawful. And ihat this law is a pure and