The Doctrine and Discipline of Divorce/Bk2 Chapter 21
CHAP. XXI.
ANother act of papall encroachment it was, to pluck the power and arbitrament of divorce from the master of family, into whose hands God and the law of all Nations had put it, and Christ so left it, preaching onely to the conscience, and not authorizing a judiciall Court to tosse about and divulge the unaccountable and secret reasons of disaffection between man and wife, as a thing most improperly answerable to any such kind of triall. But the Popes of Rome perceiving the great revenue and high authority it would give them ev'n over Princes, to have the iudging 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 meanes they subiected that ancient and naturally domestick prerogative to an externall and unbefitting Judicature. For although differences in divorce about Dowries, Jointures, and the like, besides the punishing of adultery, ought not to passe without referring, if need be, to the Magistrate, yet that the absolute and final hindring 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 urg'd as shall not need to decline the touch. But first I shall recite what hath bin already yeilded by others in favour of this opinion. Grotius and many more agree, that notwithstanding what Christ spake therin to the conscience, the Magistrate is not therby enjoyn'd ought against the preservation of civil peace, of equity, and of convenience. Among these Fagius is most remarkable, and gives the same liberty of pronouncing divorce to the Christian Magistrate as the Mosaick had. For whatever saith he, Christ spake to the regenerat, the Iudge hath to deal with the vulgar: if therfore any through hardnesse of heart will not be a tolerable wife or husband, it will be lawfull as well now as of old to passe the bill of divorce, not by privat, but by publicke authority. Nor doth Man separate them then, but God by his law of divorce giv'n 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 Common-wealth; and being as certain also, that they so necessarily separated cannot all receive a single life. And this I observe that our divines doe generally condemn separation of bed and board, without the liberty of second choice: if that therfore in some cases be most purely necessary, as who so blockish to deny, then is this also as needfull. Thus farre by others is already well stept, 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, as is not within the diocese of Law to tamper with. Other relations may aptly anough be held together by a civil and vertuous love. But the duties of man and wife are such as are chiefly conversant in that love, which is most ancient and meerly naturall; whose two prime statutes are to joyn it self 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 blamable in retiring from his endles trouble and distast, whenas his tarrying can redound to no true content on either side. Hate is of all things the mightiest divider, nay, is division it self. To couple hatred therfore 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 pos'd the divell. And that sluggish feind in hell, Ocnus, whom the Poems tell of, brought his idle cordage to as good effect, which never serv'd to bind with, but to feed the Asse that stood at his elbow. And that the restrictive Law against divorce, attains as little to bind any thing truly in a disjoynted mariage, or to keep it bound, but servs only to feed the ignorance, and definitive impertinence of a doltish Canon, were no absurd allusion. To hinder therfore those deep and serious regresses of nature in a reasonable soul parting from that mistak'n 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 a unpredestin'd misery as this, is in diameter against both nature and institution: but to interpose a jurisdictive power upon the inward and irremediable disposition of man, to command love and sympathy, to forbid dislike against the guiltles instinct of nature, is not within the Province of any Law to reach, and were indeed an uncommodious rudenesse, 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 therfore divorce may be so natural, and that law and nature are not to goe contrary, then to forbid divorce compulsively, is not only against nature, but against law. Next it must be remember'd that all law is for some good that may be frequently attain'd without the admixture of a worse inconvenience; and therfore many grosse faults, as ingratitude and the like, which are too farre within the soul, to be cur'd by constraint of law are left only to be wrought on by conscience and perswasion. Which made Aristotle in the 10th of his Ethicks to Nicomachus, aim at a kind of division of law into private or perswasive, and publick 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 natures resistlesse sway in love or hate bee once compell'd, it grows carelesse of it selfe, vitious, uselesse to friend, unserviceable and spiritlesse to the Common-wealth. Which Moses rightly foresaw, and all wise Law-givers that ever knew man, what kind of creature he was. The Parlament also and Clergy of England were not ignorant of this, when they consented that Harry the eighth might put away his Queen Anne of Cleve, whom he could not like after he had been wedded half a yeare; unlesse it were that contrary to the proverb, they made a necessity of that which might have been a vertue in them to doe. For even the freedome and eminence of mans creation gives him to be a Law in this matter to himselfe, 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 Forc't to retain in society to his own overthrow, nor to heare any judge therin above himselfe. It being also an unseemly affront to the sequestr'd and vail'd modesty of that sex, to have her unpleasingnesse and other concealments bandied up and down, and aggravated in open Court by those hir'd masters of tongue-fence. Such uncomely exigencies it befell no lesse a Majesty then Henry the eighth to be reduc't to; who finding iust reason in his conscience to forgoe his brothers wife, after many indignities of being deluded, and made a boy of by those his two Cardinall Judges, was constrain'd at last, for want of other proof that she had been carnally known by Prince Arthur, ev'n to uncover the nakednesse of that vertuous Lady, and to recite openly the obscene evidence of his brothers Chamberlain. Yet it pleas'd God to make him see all the tyranny of Rome, by discovering this which they exercis'd over divorce; and to make him the beginner of a reformation to this whole Kingdome, by first asserting into his familiary power the right of just divorce. Tis true, an adultresse cannot be sham'd anough by any publick proceeding: but that woman whose honour is not appeach't, is lesse injur'd by a silent dismission, being otherwise not illiberally dealt with, then to endure a clamouring debate of utterlesse things, in a busines of that civill secrecy and difficult discerning, as not to bee over-much question'd by neerest friends. Which drew that answer from the greatest and worthiest Roman of his time Paulus Emilius, being demanded why hee would put away his wife for no visible reason? This Shoo said he, and held it out on his foot, is a neat shoo, a new shoo, and yet none of you know where it wrings me: much lesse by the unfamiliar cognisance of a fee'd gamester can such a private difference be examin'd, neither ought it.
Again, if Law aim at the firm establishment and preservation of matrimoniall faith, wee know that cannot thrive under violent means; but is the more violated. It is not when two unfortunately met are by the Canon forc't to draw in that yoke an unmercifull dayes work of sorrow till death unharnesse 'em, that then the Law keeps mariage most unviolated and unbrok'n: but when the Law takes order that mariage be accountant and responsible to perform that society, whether it be religious, civill, or corporal, which may be conscionably requir'd and claim'd therein, or else to be dissolv'd if it cannot be undergone: This is to make mariage most indissoluble, by making it a iust and equall dealer, a performer of those due helps which instituted the covnant, being otherwise a most uniust contract, and no more to be maintain'd under tuition of law, then 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 bee maintain'd by Law, but only by the plaintife himself, therfore to divorce was never caunted a politicall or civill offence neither to Jew nor Gentile, nor any iudicial intendment of Christ, further then could be discern'd to transgresse 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 bestow'd about it by them whose spirituall office is to adjure and to denounce, and so left to the conscience. The Law can onely appoint the iust and equall conditions of divorce, and is to look how it is an injury to the divorc't, which in truth it can be none, as a meer separation; for if she consent, wherin has the Law to right her? or consent not; then is it either iust, and so deserv'd; or if uniust, such in all likelihood was the divorcer, and to part from an uniust man is a happinesse, and no iniury to bee lamented. But suppose it be an iniury, the law is not able to amend it, unles she think it other then a miserable redress to return back from whence she was expell'd, or but intreated to be gone, or else to live apart still maried without mariage, a maried widow. Last, if it be to chast'n the divorcer, what Law punishes a deed which is not morall, but natural, a deed which cannot certainly be found to be an injury, or how can it be punisht 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 rationall purpose forbid divorce, it can only take care that the conditions of divorce be not iniurious. Thus then we see the trial of law how impertinent it is to this question of divorce, how helplesse next, and then how hurtfull.