impediment can be proved to be before mariage and not to fall out after So of impotency the same they say Vt per en matrimonium nunquam extitisse judicitur And concerning mariage of kindred in the line ascendant or discendant it is counted so detestable that Bartel sayes they suffer confiscation of goods and deserve exile The Civill and Canon law allow of divorce after a long time absence of either party but they certainly agree not of the time of absence So Cod. lib. 5. tit. 1. leg. 2. const. sponsa post biennium c. allowed to marry after two years absence but tit. 27. after three years leg. 27. after four years Others say the Civill law requires five years absence In Consil. Lateran part 50. cap. 23. There is an example of a Decree upon a woman complaining her husband had been gone ten yeares and it was commanded the parents of the husband should send for him home and he in a long time came not upon which the Bishop did pronounce a sentence of divorce and gave the woman leave to marry and the sentence was allowed of by the whole Councell So the Canon law decrees causa 28. quest 1. cap. 4. That if the wife refuse to dwell with her Christian husband he may without any fault leave her Thus of the first kinde of divorce from the bond of matrimony it self and this makes the children Bastards and bereaves the woman of her dower Secondly there is a divorce à mensa thoro from bed and board only and this is for some cause subsequent or during mariage and not before mariage as for adultery committed Yet this being subsequent to the mariage the bond of mariage by the law is not dissolved but the freehold continues the wife shall be indowed and the children are mulier and not Bastards Concerning the justnesse or conveniency of all these lawes in every thing whether they will stand in foro conscientiae it s not needfull now to dispute our end being only a little to open the law of Divorce that we may see what it is And so now we leave this first thing what Divorce is and the doctrine and discipline thereof and come to the second thing And that is to prove that whatsoever other causes of Divorce may be allowed of yet that disagreement of minde or disposition between husband and wife yea though it shewes it selfe in much sharpnesse each to other is not by the law of God allowed of for a just cause of divorce neither ought to be allowed of by the lawes of man For the proof of this second thing propounded to be handled to prove that Husbands and Wives ought not to be divorced for contrariety or unfitnesse of mindes or dispositions although it should be manifested by much harsh cariage each to other I shall as briefly as I can demonstrate the same Where the Scripture commands a thing to be done it appoints when how and for what it shall be done as in the case of death when any one is by the law to dye it sets down for what cause and fact and so excommunication it teacheth when and for what But now concerning Divorce for disagreement or contrariety of disposition in regard there is between all maried people some contrariety or disagreement of mindes and the Scriptures speak nothing to direct to what a measure of disagreement or contrariety it must grow to before it shall be lawfull to divorce or part therefore I conclude the Scripture allowes not of any divorce at all for disagreement c. If it be not lawfull for a Husband to put away an Infidell wife who acknowledges not Christ in case she be content to dwell with him Then may not a man put away his wife for disagreement of mindes only but the first is true ergo the latter For the first part of the Argument the Apostle saith 1 Cor. 7.13 If any brother hath a wife who is an Infidell if she be content to dwell with him let him not put her away And for the second part that if a man may not put away his wife who is an Infidell much lesse may he put his wife away for disagreement of disposition this seems clear because difference in religion in its own nature breeds as great a dislike and disagreement and greater than any naturall disagreement of disposition constitution or complexion whatsoever Christ speaking of this difference even between them of the nearest relation saith The father shall be against the sonne and the sonne against the father even to persecute with extremity And that the Disciples should be hated of all for Christs sake and yet I never heard of any that was hated of every man for his contrariety of naturall disposition So that if disagreement in religion be a greater cause of hatred and variance then disagreement of naturall dispositions and constitutions and yet a man may not put away his wife for that disagreement then much lesse for this The third Argument shall be from Deut. 22.13 14 15 c. There if a man shall take a Wife and hate her and raise an ill report upon her to the end that he might be rid of her and if the report be found true she shall be stoned to death but if it be not found true he shall not put her away all the dayes of his life here although a man hates his Wife so that he seeks by false reports to scandalize her even to danger of her life yet is not he permitted to put her away all the dayes of his life and yet how great the disagreement of minde and disposition must of necessity be between such a man and his wife who so did hate her let any man judge If every Christian ought to beare the burthens and infirmities of another Christian to whom he is not bound by any civill relation much more is he to bear the burthen and infirmities of his Wife who is so neerly bound to him but the first is true Gal. 6.1 Ergo the latter But he that for infirmities or contrariety of minde or the like puts away his wife doth not bear with her infimities and therefore he breaks the law of Christ If the Husband ought to love his Wife as Christ doth his Church then ought not a man to put away his Wife for weaknesse of nature contrariety or indisposition of minde But the first is true Ergo the latter For the first part the words of Paul Ephes. 5.29 Husbands love your wives as Christ doth his Church If any shall say Similitudes hold not in every thing and therefore Paul may not mean a man should love his Wife in perpetuity as Christ doth his Church but for the sincerity so long as she continues his wife Answ. Paul specifies wherein they should expresse their loves like to Christ at least implicitely that is by passing by and healing the faults and infirmities of their Wives as Christ gave himself
so you speak pag. 26. compared with pag. 10. Now how this imputation will come to fall upon the law of God I believe you mean thus That for a man to divorce his Wife unjustly and to marrie another is adultery But the law of God allowes divorce unjustly except disagreement of minde or unpleasant naturall qualitie be a cause Ergo In plaine tearms you mean God by Moses suffered men to put away their wives if they found not love and favour in their eies by reason of some unpleasing natural qualitie for so you are pleased to reade the Text of Deut. 24.1 Now you infer if Moses allowed this and yet indeed it was not a just cause of divorce then did God by Moses's law tolerate adulterie in that it tolerated a man or woman to marrie to another whilest they were not lawfully parted from their first Husbands or Wives To take off this great Scare-crow and the maine Pillar which he trusts in to hold up his whole Book or most part of it it will be necessarie a little to consider of this Text of Deut. 24.1 whether it doth indeed speak any such thing or no Our English Translation hath it If a man shall take a Wife and lie with her and she finde not grace in his eyes because of some uncleannesse let him write her a Bill of Divorce So that it is for some uncleannesse and not for some displeasing qualitie that is in her According to our English the French Bible agrees Pourtaunt que il a trouue quelque laide tache in elle because he hath found in her some foule unhonest or abominable reproach spot or infamy for so signifies laide tache Ieromes Translation hath it Propter aliquaâ— foeditatem filthinesse or shamefull thing Iunius and Tremelius agrees A Translation according to the Septuagint printed at Basil hath it Quoniam invenit in ea foedam the Septuagint reads it {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} the Substantive pragma is used Acts 5.4 to signifie res and 1 Cor. 6.1 negotium businesse Iames 3.16 opus or work and the Adjective is used by Paul 1 Cor. 12.23 for indecorus shamefull dishonest or unbeseeming so signifying that they understood this place of Deut. 24.1 to be meant of some shamefull or dishonest thing So they which translate by the Septuagint have it rem turpem filthy thing In the Hebrew it is Gneruath Dabhar the very same words which are used Deut. 23.14 The Lord thy God walketh in thy Camp to deliver thee therefore shall thy Campe be holy that he see no Gneruath Dabhar in thee that is no uncleannesse or uncleane thing as is apparant by the foregoing Verses so here if she finde not favour in her Husbands eyes because of some Gneruath Dabhar some uncleannesse or uncleane thing The Hebrewes themselves expound this Text to be understood of a woman of evill condition who is not modest according to the honest Daughters of Israel So that here seems to be no ground for your understanding the Text to speak of any unpleâ—sing naturall quality when as indeed it speaks of uncleannesse so that as we conceive the maine Pillar of your Book is not able to hold up it self much lesse will it serve for a prop to hold up the rest of your discourse But it may be demanded what manner of uncleannâ—sse this Text speaketh of for it seems it cannot be meant of adulterie for Christ speaking as it sâ—ems with a relation to this Text Matth 19. saith Moses indeed suffered you to put away your Wives c. But I say unto you whosoever shall put away his Wife except it be for fornication commits adulterie so that which Moses suffered to put away Wives for was another cause then what Christ here speaks of namely fornication which could not be that which Moses suffered putting away for seeing Christ opposeth putting away for fornication to putting away by Moses's law To this we answer that though it be little materiall to our point in hand what uncleannesse this Text Deut. 24.1 speaks of whether it be a legall ceremoniall or a morall uncleannesse for it sufficeth to our purpose if it be not some unpleasing naturall qualitie as this author hath affirmed Yet we shall humbly propose to the judicious and learned with their favour and under correction what uncleannesse this Text of Deut. 24. speaks of Not proposing it as a sense infallible but one which may be something probable And that is that this Text Deut. 24.1 speaks of an uncleannessâ— committed before mariage which we usually call by the name of fornication the same uncleannesse which is spoken of Deut. 22.13 14 15 c. Where it is said If a man take a wife and lye with her and hate her and shall say I took this woman to wife and when I came in unto her I found her not a maide and the Text goes on and shewes what shall be done in this case This Text is doubtlesse to be understood of a man who takes a Wife and findes she hath committed follie before mariage which we ordinarily call by the name of fornication The same kinde of uncleannesse under correction may be here meant that when a man marries a Wife and findes her not a Maide but defiled and to be uncleane by fornication committed before mariage Against this sense of the place we conceive there may be two strong objections made which we shall endeavour to answer and so leave it to the consideration of the Reader The first Objection may be from that Text Deut. 22.12 13 c. where the direction is there that if it be found according to the complaint of her Husband that she was not a Maide but defiled that she should be stoned to death and not be put away by Divorce by the same reason if this Text of Deut. 24.1 speaks of that uncleannesse she ought to be stoned to death and not suffered to escape by Divorce To this we answer two things First that there was a twofold uncleannesse or defilement of Virgins by the law the one was when she consented not to the uncleannâ—sse or defilement but it was committed upon her by force and this in the Maide did not deserve death as is shewed Deut. 22.26 Secondly there was a defilement with the consent of the Maide and this seems to be distinguished by the law to be of two qualities 1. The first was when a man by intising words should tempt and intice a Maid to lye with her and she upon his promises and inticements yeilded to it but presently after the fact did discover it to her father or kindred to compell the same man to marrie her and of this kind it seems is spoken of Exod. 22.16 In this case the man was compellable to marry her and so she was not in this case to be punished with death Secondly there was another distinction of this defiling of a Virgin viz. When the Maide consented to commit folly
c. that he might wash his Church c. And for the second part of the Argument its clear because such love as is there required ought to hide and passe by faults disagreement of minde contrariety of disposition c. The sixth Argument is from the expresse words of Christ Matth. 5.32 where he being a preaching to his Disciples concerning the true sense of Moses's law as it seemes and of some addition thereto by his own Evangelicall precepts he precisely tels them That whosoever puts away his wife except it were for {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} scortatio adultery he commits adultery so that whether you make it a true interpretation of Moses's law against the glosses of others or take it as a new precept belonging to the law of the Gospell yet will it be an impregnable proofe against all effâ—minate and childish divorces for disagreement and contrariety of mindes If any shall say if Christs words hold universally and except no cause but adultery then all other causes as frigidity mariage within degrees forbidden by Moses c. are no causes of divorce no more then contrariety of minde Christs speech holds universally according as he intended it namely to condemne all such grounds of divorce as were groundlesly practised amongst the lewes for every cause which they thought sufficient and yet no wayes checks the law which forbids mariage within the degrees of affinity or consanguinity or forbids other cause which makes mariage void ipso facto or by due proofes may make void the mariage If there be any other objections against this place we shall refer them to what will afterwards be said in explication of this text and of Deut. 24.1 The seventh Argument is If the Husband and Wife be by the Ordinance of God one flesh then may they not separate or be separated from one another except it be for some cause which either in it selfe or by consequence may justly be thought to be a just cause of dissolving the union of being one flesh But the first is true Ergo also the latter For the first part that the Husband and Wife are one flesh Paul confirmes it Ephes. 5. and Christ himselfe Matth. 19. And for the second part of the Argument as it depends upon the former viz. if they be one flesh then they ought not to separate or be separated It s the Argument of Christ himselfe against the Pharisees why divorce ought not to be for light causes but for adultery only because saith he they are no more two but one flesh therefore whomsoever God hath joyned together let no man put as under Only as I intimated such other causes may be allowed of as dissolves this union of being one flesh either directly or by consequence But sure contrariety of disposition and unfitnesse of minde câ—n be no such thing as makes the Husband and Wife being once by mariage one flesh to be two againe In the next place I conceive something may be gathered to this purpose from the words of Paul 1 Cor. 7. when speaking of mariage he tels them such should have troubles in the flesh and not that freedome to serve God which the unmaried had yet he concludes he spared them and would not forbid them for that cause to marry Now if troubles in the flesh comming by mariage which hinder the cheerfull service of God be not a just cause to forbeare mariage Then it would seem that to persons that are already maried and bound to each other by the union of one flesh by covenant by love by the bonds of Christianity although through the pâ—evishnessâ— or ill dispositions of their natures their troubles should increase to multitudes above what is ordinarie betwixt maried persons yet ought they not to part and to marrie to others because some sort and measure of troubles and discontent in mariage are inavoidable and therefore where one is by mariage bound by so many bonds he ought not to break the bonds to ease himself of disquietnesse and trouble which is inseparably incident to mariage though not in that degree as he now lies under and is subject to Yet am I not over confident of this Argument but that with some colour of reason it may be evaded In the next place if the Husband ought to love his Wife as himself then may he not for discontent or disagreement put her away no more then for some discontent or disquietnesse in himselfe he may separate his soule from his body But the first is truâ— Ephes. 5. ult. Ergo the latter Lastly we may fetch an Argument from the inconveniencies that would follow if divorce were suffered for this disagreement of disposition and unfitnesse of minde as for example it would be an occasion to the corrupt heart of man without any just cause at all meerely for to satisfie his lust to pretend causes of divorce when there is none and to make quarrels and live discontentedly with his Wife to the end he might have a pretence for to put her away who sees not how many thousands of lustfull and libidinous men would be parting from their Wives every week and marying others and upon this who should keep the children of these divorcers which somtimes they would leave in their Wives bellies how shall they come by their Portions of whom or where and how shall the Wife be endowed of her Husbands estates Nay commonly to what reproach would the woman be left to as being one left who was not fit for any ones company and so who would ventuae upon her againe And so by this means through her just cause of discouragement she would probably hazard her self upon some dishonest and disgracefull course with a hundred more the like inconveniencies even as the overturning and overthrowing of all humane society which would inevitably follow if this loose Doctrine of Divocce were once established by law To these Arguments we might adde the consent of Antiquity who in this follow the direction and doctrine of Christ As Concil. Tolet. 12. Can. 8. Preceptum Domini est ut excepta causa fornicationis uxor à viro dimitti non debeat c. It s the command of the Lord the Wife should not be put away but for fornication So Cod. lib. 3. tit. 38. leg. 11. const. Quis ferat c. who can endure that Children from Parents and Wives from Husbands should be separate So Coâ—sil Anglic. 670. Can. 10. No man may put away his Wife except as the Gospell teacheth for fornication It is true some of the Imperiall lawes allow Homicide Sacriledge Robbery Manstealing c. for causes of divorce Cod. lib. 5. tit. 17. leg. 8. but the Canon law decrees otherwise Divers other authorities might be alledged as to this point rightly agreeing as Greg. causa 29. quâ—st 7. cap. 19. So Zach. causa 29. quest 2. cap. 2. So Instin Martyr Apol pro Christianis sub initio Tertullian
of dispensing with common adultery is not taken away in case it was not a just cause of divorce For answer to this we come to our second answer to this place of Deut. 24.1 In the second place we answer to Deut. 24 1. in case your reading should be found good to be of a displeasing naturall qualitie and that they did unjustly put away by this law their wives then we answer this place of Moses permits no divorce at all but was only a law made in favour of the woman who was unjustly put away and a sufferer in this case Moses provides that though a woman should be wrongfully by force be put away yet he would by this law compell the Husband to give her a Bill of divorce which should be a token to her father and her friends that it was the act of her husband to dismisse and put her away and not her voluntary act for which had it been voluntary on her part she would have been judged a Whore and a wandering Vagrant and so would scarcely have been received into her fathers house so that Moses may seem here not to give any law of divorce but rather a law to compell such of the Jewes who in their cruelty and from the hardnesse of their hearts would unjustly and by force put away their wives to make them a writing of divorce and to give it her which should be a testimony for the woman after she departed that she wandered not as a Whore or a Vagrant of her own minde from the company of her Husband but it wâ—s his fact by force to put her away For the proofe of this sence of the place we conceive three things make to this purpose 1. Because I finde no law of divorce allowing men to put away their wives before this law if in case this should be found to be such a law aâ—d yet I finde divorce practised by the Jewes therefore Levit. 21.14 it is commanded to the Priest that he shold not marry a Widow or a woman that was divorced which implies there were some women divorced Now if divorce was practised and no law allowing it I have reason to think this place of Deut. 24.1 is a law to remedie the extremity of their unlawfull divorces by compelling them to make a Bill in favour of the woman that was put away and not a law either commanding or allowing the divorce it selfe 2. It seemes to appear from the connexion of the words hee shall give her a Bill of divorce that when she is departed out of his house she may become the Wife of another man so that the Bill seems meerly to be made for her benefit 3. The Text here allowes the woman to marry againe she being the suffering partie and unjustly put away but he being the offending it speaks nothing of allowing him to marrie againe so it seems the provision of the Bill of Divorce was for her benefit only Against this the words of Christ will be objected Matth. 19. and Mark 10.10 the Pharisees when they had asked if a man might put away his Wife for every cause Matth. 19.3 Christ answers That God at the beginning made them Male and Female and that a man shall forsake Father and Mother and cleave unto his Wife the Pharisees upon this ask Christ why Moses did command to give a writing of Divorce and to put her away then Christ answers Moses because of the hardnesse of your hearts suffered you to put away your wives but from the beginning it was not so So that some may say Christ here seems to affirme not only the Bill of Divorce to be of Moses but even the Divorce it self It appears not to be so but rather that Christ answers the Pharisees according to their opinion of Moses law and he grants them that in some sort Moses might be said to suffâ—r men to put away their Wives because he commanded the Bill to be made in favour of the woman the suffering party but saith Christ from the beginning it was not so that men should put away their Wives as the Jewes did neither was this Bill then invented and this may seem to be the substance of Christs words We answer to your Text Deut. 24.1 in the third place that if the other two satisfie not then may that be a good positive law made by Moses during the time of the Jewish politie or government properly called Mosaicall yet now Christ under the New Testament hath aboliâ—hed that law to all his followers To this purpose that of Christ Matth. 5.31 32. It was said unto of old that whosoever shall put away his Wife let him give her a bill of divorce then Christ addes But I say unto you whosoever shall put away his Wife except it be for cause of fornication causeth her to commit adultery and whosoevr shall marry her that is divorced committeth adultery This place of our Saviour concerning divorce may seem not to be to the end to reforme the false glosses of the Pharisees concerning divorce as it is usually thought but rather to shew the law of the Gospell to require more mutuall love and passing by injuries then the law As who should say under Moses where there was many duties required and yet through the darknesse of the dispensation of heavenly things there was little grace and power to performe what was required then the law of Divorce did mercifully bear with the infirmities of people and during the time of this dispensation this law of Divorce was a good positive law But now whosoever will be my follower and professe himself to have received the plenteous grace of the Gospell he must be so farre from using hardship or unkindnesse to his Wife or others to whom he is neerly bound that he must not revenge wrong done from strangers enemies but pray for them and blesse them he must be so farre from turning his Wife out of doores for her ill cariage yea although it should proceed to cursing and persecuting him that he must use all mildnesse and love and godly means to reforme her compare this with verse 43 44. and indeed with all the latter part of the Chapter and you will finde the drift of Christ to give as it were new inlargements of lawes under the Gospell requiring more spiritualness in observation then the Mosaical government This interpretation I cannot conceive to be either contrary to the scope of Christ in this Chapter which principally is to shew that he came not to destroy the law but to fulfill it nor is it contrary to any other sound and wholesome Doctrine laid downe in Scripture neither opens any gap to any to throw away Moses's law as not at all pertaining to us I think there is none that thinks but that there were given by Moses not only ceremoniall Precepts but even judiciall to the Jewes which for us to observe under the Gospell would be so farre from piety that
TO preserve the strength of the Mariage-bond and the Honour of that estate against those sad breaches and dangerous abuses of it which common discontents on this side Adultery are likely to make in unstaied mindes and men given to change by taking in or grounding themselves upon the opinion answered and with good reason confuted in this Treatise I have approved the printing and publishing of it Novemb. 14 1644. JOSEPH CARYL Errata IN pag. 1. line 17. read aut for and p. 2. l. 2â— r. Kens case for Kerâ—s case p. 9â—â— o r. to for as p. 12. l. 24. leave out naturall in the first place p. 14. l. ult â— Obligee for Obligor An Answer to a Book Intituled THE Doctrine and Discipline OF DIVORCE OR A Plea for Ladies and Gentlewomen and all other Maried Women against Divorce Wherein Both Sexes are vindicated from all bonadge of Canon Law and other mistakes whatsoever And the unsound Principles of the Author are examined and fully confuted by authority of Holy Scripture the Laws of this Land and sound Reason Concil. Anglic. Anno 670. Can. 10. Nullus conjugem propriam nisi ut sanctum Evangelium docet fornicationis causa relinquat LONDON Printed by G. M. for William Lee at the Turks-Head in Fleet-street next to the Miter Taverne 1644. An Answer to a Book intituled The Doctrine and Discipline of Divorce restored to the good of both Sexes from the bondage of the Canon Law FOr our more orderly proceeding in this question of Divorce viz. whether a man may divorce or put away his Wife for indisposition unfitnesse or contrariety of minde we will do these three things 1. Shew what the Doctrine or discipline of Divorce is 2. Give some reasons why a man may not put away his wife for indisposition unfitnesse or contrariety of minde although manifested in much sharpnesse 3. We will answer the Arguments and Scriptures which are brought by the Author of the Book intitultd The Doctrine and Discipline of Divorce to prove that a divorce may lawfully be for contrariety of minds c. Concerning the first thing what Divorce is or the Doctrine and discipline of it The word Divorce comes from the Latine word divortium which comes a divertendo and divortendo to intimate that by divorce a woman is separated divided or turned aside from her husband the Greek is {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} ex {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} i. e. repudio rectius {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} dicitur quod ab {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} i. e. ab {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} i. e. sto quasi dicas abscessio The Hebrew word is Cherithuth from Chorath which signifies a cutting off dismembring or separating or foedus icere but Cherithuth is {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} properly a Bill of divorce or parting Thus concerning the word Now concerning the divorce it selfe to shew what it is we must consider it under a twofold notion First as it hath been practised by the Jewes according as they thought directed by Moses's Law and so Divorce was a free and a voluntary act of the Husband made known by writing whereby he did dismisse and for ever put away his Wife and give her leave to marry to another man To this purpose some of the Hebrew Rabbines have set down the form of the Bill of Divorce used amongst the Jewes in effect thus I such an one setting down his name the day and year do voluntarily with the willingnesse of my soule without constraint dismisse leave and put away thou even thou naming her name which hasâ— been my wife heretofore but now I dismisse thee that thou maist be free and be married to whom thou wilâ— And this is unto thee a writing of divorce according to the law of Moses Witnesse R. and T. The Jewes require to make a lawfull divorce that the man must put her away willingly that it must be by writing that he must put her quite out of his possâ—ssion that she be truly named in the deed of divorce and that the deed of divorce be given to her either by himself or his Deputy before witnesse Thus of Divorce as practised by the Jewes in relation to Moses's Law In the second place we will consider of it as practised by the lawes of England And so Divorce is a sentence pronounced by an Ecclesiasticall Judge whereby a man and woman formerly married are separated or parted Cook lib. 7. Keras case This Divorce is twofold 1. There is a divorce a vinculâ— matrimonii from the very bond of matrimony it selfe 2. There is a divorce tantùm à mensa thoro from bed and board only Concerning the first kinde of divorce from the very bond of matrimony it self the cause of this divorce must precede or go before mariage amongst which are 1. Causa precontractus because the parties or one of them was contracted to another before aâ—d so if a man marry one precontracted and have issue it s the fathers childe till divorce for precontract and then is it nullius filius a Bastard Cook lib. 6.66 Diâ—r 105. 2. There is a divorce a vinculo matrimonii causa frigiditatis vel causa impotentiae for cause of impotency to mariage duties yet if after a man be divorced for impotency and take another wife and have children by her these shall not be Bastards because a man may be habilis inhabilis divâ—rsis temporibus able and unable at divers times Cook lib. 5.93 Diâ—r fol. 178. 3. There is a divorce à vinculo matrimonii causa minoris aetatis vel impubertatis because they are within age at the time of mariageâ— and so if two be maried infra annos nubilos and after full age are divorced for the same the woman may bring an Assise against the man for land given her in frank-mariage Lib. Ass. 19. An. plac 2. which proves the divorce is from the very bond of matrimony Besides these there are divers other causes of divorce à vinculo matrimonii as causa affinitatis causa consanguinitatis by reason of affinity and consanguinity or kindred Cook com Littleton So causa professionis and termino paschae 30 Edw. 1. coram Rege there William de Chadworths case how that he was divorced from his Wife because he carnally knew the Daughter of his Wife before he maried her mother these are causes of divorce from the very bond of matrimony allowed on by the Common law concerning which the Civill or Canon law makes some distinctions and additions So in the case of divorce causa impotentiae vel frigiditatis for impotency to mariage duties Although Iustinian as some think discreetly did will that there should be three yeares triall of the disability yet here the Canon law expects present proofe yet some think this cause doth not dissolve from the very bond of matrimony except the impotency or
providence of God maried to a yoke-fellow which is in divers things cause of grief and vexation to him therefore he may now break all bonds of law and providence and under a pretence of serving God chearfully he may unchristianly thrust his Wife out of dores with a bare Bill of Divorce in her hand to seek her living For the rest of our discourse in this Division concerning divorce from Hereticks we shall passe it over as nothing to our purpose and so passe to your sixth Argument the effect of which is That mariage which nature it selfe teacheth to be unlawfull that may be destroyed or dissolved by divorce But the mariage of persons of contrary mindes dispositions nature teacheth to be unlawfull Ergo For the present we agree to the proposition that such mariages as Nature it self teacheth to be unlawfull may be dissolved by divorce But for the second part that Nature teacheth such mariages to be unlawfull as are made betwixt persons who are of a contrarie minde or disposition this we utterly denie and look for your proofs to the contrarie Well you want not proofs for you say Moses teacheth the Iewes that they should not sow their Vineyards with divers seeds nor plough with an Oxe and an Asse together Ho brave stuffe but goe on Moses teacheth so indeed but how will you make this last to fit your shooe This you will do well enough but how By following the example of Pauls reasoning say yoy Well le ts see whether Paul or you are the best Logician Paul reasons doth God take care for Oxen and Asses how ill they yoke together or is it spoke altogether for our sake for our sakes doubtlesse thus you would have Paul to reason for you but the truth is Paul doth reason thus but it is in another case the place is 1 Cor. 9. Paul reasons thus we that bestow our labour in preaching the Gospel ought to be maintained thereby and he proves it by familiar examples that every one ought to be maintained by that which he takes paines in as the Wayfaring man by travelling the Vinedresser by planting the Shepheard by looking to his flock all these eat the fruit of their labour and to put it out of doubt Paul cites the Law of Moses proving that not only Men but even Beasts ought to eat the fruits of their labour for it saith Thou shalt not muzle the mouth of the Oxe which treads out the corne Well Paul goes on in â—is reasoning lest any idle pated fellow should answer and say Paul what makes this for you I hope you are no Oxe neither do you tread out the corne No sayes Paul that 's true but the force of my Argument is this That God by Moses did not only intend in that speech that Oxen should be fed but it was with reference to other cases among the rest even for us Ministers of the Gospel that we should not take pains in the Gospel but should also be maintained thereby as well as Oxen and other mean Callings are maintained by their labour lo this is Pauls reasoning and it is impregnable Logick let 's see how yours agrees Moses tels the Jewes they should not plough with an Oxe and an Asse together nor sow their field with divers seeds Ergo there being some other sense in this then meerly to take care for Oxen c. it will follow from hence that it is a foule incongruity and a great violence to the reverent secret of Nature to force a mixture of mindes that cannot unite and to sow the furrow of mans nativitie with seed of two incohâ—rent and incombining dispositions Is this your reasoning like Pauls as you promised sure Paul would be ashamed to reason thus For although we believe there may be some typicall signification of that of Moses yet that it should be yours is ridiculous But you say Paul 2 Cor. 6. alludes to that of Moses and applies it to mis-yoking in mariage as say you by the Greek word is evident To this we answer that it may be likely both by the Greek word and English also that Paul alludes to that in Deuteronomy Yet that he applies it to mariage with Infidels you cannot prove but rather to all needlesse conversation but especially of companying with them in their service of Idols But suppose he did applie it to mariage with Infidels and forbad it yet you see after mariage is perfected and consummated he will by no meanes allow of a Divorce if the Wife be but so much as content to live with her Husband as was shewed upon 1 Cor. 7. And so this no waies makes for your purpose Now for that reverent expression of youâ—s That it is a foule incongruity and a great violence to the reverent secret of Nature to force a mixture of mindes which cannot unite and to sow the furrow of maâ—â— nativitie with the seed of two incoherent and incombining dispositions This Court complement so neatly and modestly drâ—st I believe deserves the pains of the best Ladie at Court to learn it For answer to it being but a complement for your forcing â—f â— mixture of mindes that cannot unite I know no bodie by force or fair means intends any such mixture in mariage mindes are not capable of mixing but only agreeing and uniting indeed you talk much of fit conversing soules whether you meâ—n by mixture or otherwise it matters not the language is too sublime and Angelicall for mortall creatures to comprehend it And for your other phrase of a great violence to the reverent secret of nature by sowing the furrow of mans nativitie with the seed of two incoherent and incombining dispositions This frothie discourse were it not sâ—gred over with a little neat language would appear so immeritous and undeserving so contrary to all humane learning yea truth and common experience it self that all that reade it must needs count it worthie to be burnt by the Hangman For who ever thought before you that the reverent secâ—et of Nature or the furrow of mans nativitie so there was lawfull mariage preceded might not be sowed by the seeds of such as are of diâ—ferent or uncombining disposition if any such there be without violence or foul incongruitie If any think otherwise as you it seems doe give advice that a Petition may be drawn to have a Committee in every Countie of the Kingdome who shall carefully see to and severely restraine the mariage of any two Men or Maids who differ in constitution complexion hair countenance or in disposition lest this reverent secret of Nature be defiled and violated Your seventh Argument is The Canon law and Divines allow a Divorce where one of the parties conspires the death of the other but sometimes through disagreement of dispositions by a sad pensivenesse the life of one of the parties at least is brought into danger Ergo it seems a divorce ought in the latter case to be tolerated To this I answer