The Doctrine and Discipline of Divorce/Bk2 Chapter 18
CHAP. XVIII.
BUt because we know that Christ never gave a Judiciall Law, and that the word fornication is variously significant in Scripture, it wil be much right done to our Saviours words, to consider diligently, whether it be meant heer that nothing but actuall fornication, prov'd by witnes, can warrant a divorce, for so our cannon law judges. Nevertheless as I find that Grotius on this place hath observ'd the Christian Emperours, Theodosius the second, and Justinian, men of high wisdom and reputed piety, decreed it to bee a divorsive fornication, if the wife attempted either against the knowledge, or obstinatly against the will of her husband, such things as gave open suspicion of adulterizing: as the wilfull haunting of feasts, and invitations with men not of her neer kindred, the lying forth of her house without probable cause, the frequenting of Theaters against her husbands mind, her endeavour to prevent or destroy conception. Hence that of Jerom, Where fornication is suspected, the wife may lawfully be divorc't; not that every motion of a jealous mind should be regarded, but that it should not be exacted to prove all things by the visibility of Law witnessing, or els to hood-wink the mind: for the law is not able to judge of these things but by the rule of equity, and by permitting a wise man to walk the middle way of prudent circumspection, neither wretchedly jealous, nor stupidly and tamely patient. To this purpose hath Grotius in his notes. He shews also that fornication is tak'n in Scripture for such a continual headstrong behaviour, as tends to plain contempt of the husband: and proves it out of Judges 19.2. where the Levites wife is said to have plaid the whoor against him; which Iosephus and the Septuagint, with the Chaldean, interpret onely of stubbornesse and rebellion against her husband: and to this I adde that Kimchi, and the two other Rabbies who glosse the text, are in the same opinion. Ben Gersom reasons, that had it bin whoordom, a Jew and a Levit would have disdain'd to fetch her again. And this I shall contribute, that had it been whoordom, she would have chosen any other place to run to, then to her fathers house, it being so infamous for an Hebrew woman to play the harlot, and so opprobrious to the parents. Fornication then in this place of the Iudges is understood for stubborn disobedience against the husband, and not for adultery. A sin of that sudden activity as to be already committed, when no more is done, but onely lookt unchastly: which yet I should bee loath to judge worthy a divorce, though in our Saviour's language it bee called adultery. Neverthelesse when palpable and frequent signes are giv'n, the law of God, Numb. 5. so far gave way to the jealousie of a man as that the woman set before the Sanctuary with her head uncover'd, was adjur'd by the Priest to swear whether she were false or no; and constrain'd to drink that bitter water with an undoubted curse of rottennesse and tympany to follow, unlesse she were innocent. And the jealous man had not bin guiltles before God, as seems by the last verse, if having such a suspition in his head, he should neglect his triall; which if to this day it be not to be us'd, or be thought as uncertain of effect as our antiquated law of Ordalium, yet all equity will judge that many adulterous demeanors which are of lewd suspicion and example, may be held sufficient to incurre a divorce, though the act it selfe hath not been prov'd. And seeing the generosity of our Nation is so, as to account no reproach more abominable, then to bee nicknam'd the husband of an adultresse, that our law should not be as ample as the Law of God to vindicate a man from that ignoble sufferance, is our barbarous unskilfulnesse, not considering that the law should be exasperated according to our estimation of the injury. And if it must be suffer'd till the act be visibly prov'd, Salomon himselfe whose judgement will be granted to surpasse the acutenesse of any Canonist, confesses, Pro. 30.19, 20. that for the act of adultery, it is as difficult to be found as the track of an Eagle in the aire, or the way of a ship in the Sea: so that a man may be put to unmanly indignities, ere it be found out. This therfore may bee anough to inform us, that divorsive adultery is not limited by our Saviour to the utmost act, and that to be attested alwayes by eye witnesse, but may bee extended also to divers obvious actions, which either plainly lead to adultery, or give such presumption, wherby sensible men may suspect the deed to bee already don. And this the rather may bee thought, in that our Saviour chose to use the word Fornication, which word is found to signifie other matrimoniall transgressions of main breach to that covnant besides actuall adultery. For that sinne needed not the riddance of divorce, but of death by the Law, which was active ev'n till then by the example of the woman tak'n in adultery; or if the law had been dormant, our Saviour was more likely to have told them of their neglect, then to have let a capitall crime silently scape into a divorce: or if it bee said his businesse was not to tell them what was criminall in the civill Courts, but what was sinfull at the barre of conscience, how dare they then having no other ground then these our Saviours words, draw that into triall of law, which both by Moses and our Saviour was left to the jurisdiction of conscience? But wee take from our Saviour, say they, only that it was adultery and our Law of it selfe applies the punishment. But by their leave that so argue, the great Law-giver of all the world who knew best what was adultery both to the Iew and to the Gentile appointed no such applying, and never likes when mortall men will be vainly presuming to out-strip his justice.