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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 tenth 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. **
It is true, an adulteress cannot be shamed enough by any public proceeding; but the woman whose honor is not appeached, is less injured by a silent dismission, being otherwise not illiberally dealt with, than to endure a clamoring 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 ac
countant 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 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 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 doated on, ever since that unfortunate mother famously sinned thrice, and died impenitent of her bringing into the world those two misbegotten infants, and forever infants, Lombard and Gratian, him the compiler of canon iniquity, the other the Tubal Cain of scholastic sophistry, whose overspreading barbarism hath not only infused their own bastardy upon the fruitfulest 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 labor of no mean difficulty and envy to defend. That it should not be counted a faltering 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 decree 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 tomorrow, 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 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 he cannot do, and thinks himself and this his case not contained in that prohibition of divorce which Christ pronounced, the matter not being of malice, but of nature, and so not capable of reconciling; to constrain him further were to unchristen him, to unman him, to throw the mountain of Sinai upon him, with the weight of the whole law to boot, flat against the liberty and essence of the gospel, and yet nothing available either to the sanctity of marriage, the good of husband, wife, or children, nothing profitable either to church or commonwealth, but hurtful and pernicious in all these respects.
But this will bring in confusion. Yet these cautious mistrusters might consider, that what they thus object lights not upon this book, but upon that which I engage against them, the book of God and Moses, with all the wisdom and providence which had forecast the worst of confusion that could succeed, and yet thought fit of such a permission. But let them be of good cheer; it wrought so little disorder among the Jews, that from Moses till after the captivity, not one ⚫ of the prophets thought it worth the rebuking; for that of Malachi well looked into will appear to be not against divorcing, but rather against keeping strange concubines, to the vexation of their Hebrew wives. If therefore we Christians may be thought as good and