then is it not so great a cause of divorce as naturall frigiditie is But the first is true Ergo the latter For the first part of this Argument its apparent for contrariety of dispositions is no cause of burning in lust towards others bâ—cause notwithstanding that they may and we see usually doe performe mariage duties each to other But on the other side where naturall frigidity or coldnesse bears sway i. e. an impotency to mariage duties there the other partie is as to burning in lust as if they were not maried at all or very little better and for want of conjugall duties by their yoke-fellow and an impotencie to the same they are in a great measure as likely to burne in lusts towards others as unmaried persons are which such as have only a contrariety of minde or disposition properly so called are not likely so subject to As for the second part of the Argument that if contrariety of mindes be not so great a cause of burning in lust as naturall frigidity that then it is not so great a cause of divorce as naturall frigidity This appears from what was said before namely because by the naturall frigidity of the one the other is in its manner as to mariage or mariage duties as if they had no yoke fellow and so if the mariage it selfe be not void ipso facto yet all law and reason must yeild that for the reason before cited he ought rather to be relieved by leaving his impotent yokefellow then the other by leaving his or her wrangling yoke-fellow So much for to shew the error of your position upon which all your following discourse is or ought to be grounded Now to your reasons which are to prove contrariety of disposition a just cause of divorce where we are to take notice that you in your reasons go not about to prove your Position as you have laid it down but only that contrarietie of minde is a just cause of divorce betweene maried persons not taking notice whether it be unchangeable in nature or whether it be a greater cause of divorce then naturall frigidity or whether there be children between them or consent as he hath exprest himself in his Position We shall endeavour to trace you in the Roade you goe only we shal be driven to contract or shorten your Argument for brevity sake But before we come to your particular Arguments the Reader is to take notice of one thing namely that all his Arguments to prove a man may put away his wife for disagreement of minde or disposition except it be his Argument from Deu. 24.1 they prove as effectually that the Wife may sue a Divorce from her Husband upon the same grounds Your first proofe is the institution of mariage Gen. 2. to make woman a mâ—et help for man because it was not good that man should be alone whence you collect that a happy conversation by preventing lonelinesse was the chiefest and noblest end of mariage and in case this end cannot be found in mariage there may be reliefe by parting We answer and tell you againe that it is a happie or a pleasant conversation made up by creating them male and female and not simply as Eve was a fit conversing soule for Adam as you afâ—erward expresse it for then would it have been more pleasant and beneficiall to Adam to have had another man created then a woman 2. What will follow upon this if it should be granted will it follow think you that because the end of mariage is that woman should bee a meet helpe to man therefore if shee prove not so meet as is expected he may then put her away and take another I hope no Such kind of reasoning deserves no answer at all But now to his second Argument His second Argument is From the violence and cruelty which is in forcing the continuance of those maried persons together whom God and nature in the gentlest ends of mariage never joyned As for the phrase of the gentlest ends of mariage it s too abstruse and of no use except it be as you think to please the Reader with a neet phrase And for the maine of your Argument you take too much for granted for though the case may be so that some persons are joyned together in mariage neither by God nor Nature viz. not allowingâ— of it yet that for disagreement of dissâ—tions or contrarietie of mindes the mariage should be void wee deny for voide it must needs be if it be neither of God nor Nature Now where a thing is void ipso facto there needs no legall proceeding to make it void For clearing of this I hope you remember this distinction in our law that some things are void and some voidable by due processe of law For example if Iohn a Stiles should enter into a bond of an hundred pound to Iohn a Nokes with condition annexed that if the Obligor did kill a third person before such a day then the Obligation should be void This Obligation being withâ— condition against law is void by the very making of it and the Obligor needs not to sue the Obliged in Chancery to compell him to free him of the penaltie because void in it self On the other side some things are voidable i. e. to be made void by the partie himself by Processe of law as if Titus within the age of twenty one years makes a feoffement levies a fine or suffers a recovery of land to Sempronius this is not simply void but voidable so that Titus when he comes to age if the conveyaâ—ce were by feoffement he may remedie it by his Writ of Dum fuit infra aetatem if it were by fine or recovery reverse them by error because within age at the time To apply it to your case if men and women of disagreeing dispositions being joyned in mariage the mariage is void being neither of God nor Nature then there needs no Divorce or legall proceeding to part them and then it is nothing to the Title of your Book being The Doctrine and Discipline of Divorce which you pretend to handle briefly when you have proved that such men and women who are maried and are of contrary dispositions or mindes that their mariage is void or not of God nor Nature we will grant you the whole controversie in the mean time it is too great a begging of the question In your prosecution of this Section you are pleased to faine an Objection That the disposition ought to be knowne before mariage You are pleased to answer That a discreet man being wary in this yet may be mistaken for say you the sobrest and best governed men are least practised in these things But how so if sobrest and best governed I hope they are the better able to judge of the disposition and cariage of a Maid or Widow But go on You say Who knows not that the bashfull mutenesse of a Virgin may oft times hide
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
three things 1. For the opinion of the Canon law the whole bodie of it is not of your minde for Nichol 1. de matrim. Can. 6. is contrarie quicquid mulier contra te cogit averit non est excepta causa â—â—â—niâ—ationis rejicienda Whatsoever thy Wife conspires or plots against thee there is no other cause of putting her away but fornication The case is not the like betwixt the conspiring of one partie to kill the other and your case for where the one partie conspires to take away the life of the other and the conspiration continues there the offender doth implicitely at least act a Divorce and though it should be true that the partie grieved may in this case sue a Divorce yet will it not follow in your case that because a man may seek divorce from her who seeks his life to the end to save his life which Nature teacheth therefore for disagreement of disposition causing sadnesse and wherein they are both actors if not equals there the Husband may will she â—ll she put her away this is just a taking advantage of our own faults and corruptions to release us from our duties But thirdly it would seem that there is no such cause meerly in Nature properly so called that may cause such griefe as is destructive to the life and if the cause be not in Nature but in corruption in pride haughtinesse sullennesse c. let them amend their faults represse their pride and sullennesse or else let them if they think best die of the sullen disease let them try who will piâ—tie them The effect of your eighth Argument is this Those who are destitute of all mariage gifts but only fitnesse of body they have no calling to marry and consequently if maried ought to be divorced but such some are Ergo Briefly to this simple Argument quite besides that which ought to be the scope of your Book for what is here to contrariety of dispositions now it is a disabilitie to all maried duties This wavering shaking in your opinion is not fit to be answered for if it be a Lunatick noâ— compos mentis without any wit a naturall Poole which cannot count the daies in the week or tell twenty or measure a yard of cloath you need not to inveigh against them and you can seldome shew such an example if Guardians doe sometime marrie such let the Lawyers alone with it they know how to relieve the suffering partie well enough Mariage is a humane society and so ought to have the consent of the minde but if the minde cannot enjoy that in mariage which it may reasonably desire it is no humane society Ergo The consent of the minde ought to be had in mariage or else it will hardly become a humane societie but that after mariage the mindes of the Husband and Wife must in all things agree or else the mariage becomes no humane societie is a new principle unheard of till now and so I leave it As for the discourse of Deut. 24.1 and Christs exposition to the Phaâ—isees we have spoken of it in answer to your second Argument Now a word to your last Argument and so farewell Every law is made for some good which good may be attained unto without a greater inconvenience but such is not the law that prohibits Divorce for disagreements of mindes and dispositions Ergo it is not a just law We denie this your Argument and say that there are many laws which are made for good and yet that good is not attainable through the defaults of the partie but a greater inconvenience followes and yet are indeed still just lawes I will give you two or three instances in our lawes of England It is the righteous and just law of England that every one shall peaceably enjoy his estate in lands or otherwise according to the goodnesse and latitude of his title and I hope none will denie this to be a just law yet see by the default of the partie how this may be evaded and he fall into great inconvenience And so if a man having fee-simple in landâ— and yet will take a lease from another of the same lands this shall be an Estoppell to him in an Assise to recover his own land ter leg. estop So if a Daughter mulier will sue liveâ—ie of lands with her sister who is a Bastard she shall not avoid it after by saying her sister was a Bastard not mulier So if a man had a rent liberties Common c. by prescription and after takes a grant of the same from the King by Patent that shall determine this prescription 32 H. 8. Bro. tit. Estop 200. So 37 H. 8. Bro. Estop 218. If two joyn tenants are which hold of the King in capite and the one release to the other in fee and after both respite homage in the Exchequer the other hath by this gained his moâ—tie againe against the other without any valuable considerations by the default of the other So it is a just law in England that no man shall be unjustly charged or taxed contrarie to the right and what he is bound to doe Yet a man by his own fault may charge himselfe or doe such things as the law will compell him to be charged where before he was free For example If a Towneship or a Corporation are bound to repaire or maintaine a Causey or a Bridge and a private man where he is not bound will repaire this Bridge or Causey time beyond the memorie of man he shall then be compelled to repaire it for ever by the Law and at the first he was compellable The end of citing these cases is to shew you the weaknesse of your reason against the law of England which prohibits Divorce for your pretended contrarietie of minde For though it should be granted this law of prohibition of Divorce the end of it could not be attained without a greater inconvenience yet this inconvenience comming arising and growing from the fault of the parties and not from the Law this Law of prohibiting Divorce shall remain maugre the malice of all opposers a just and a righteous law FINIS 2 Thing 1 Arg. 2 Arg. 3 Arg. 4 Arg. 5 Arg. 6 Arg. Object Answ. 7 Arg 8 Arg 9 Arg. 10 Arg. Position 1 Answ. â—Answ 1 Answ. 2 Answ. 3 Answ. Answ. â—Prop â—Answ 1 Arg. Answ. â—Arg Answ. Answ. â—Answ Answ. Answ. Object Answ 1 Object 1 Answ. â—Answ 1 Answ. 2 Answ. Object Answ. Object Answ. Object Answ Object Answ. â—Answ Answ. Answ. Answ. â—Arg Answ. Answ. Answ. 4 Arg. Answ. Answ. Answ. Answ. Answ. 1 Quest 2 Quest Answ. 5 Arg. Answ. 6 Arg. Answ. Answ. 7 Arg. 1 Answ. 2 Answ. â—Answ 8 Arg. Answ. 9 Arg. Answ. 10 Arg. Answ.