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[i]Quest.[/i]V. May husband and wife part by mutual consent, if they find it be for the good of both?
[i]Answ.[/i] If you speak not of dissolving the bond of their relations, but withdrawing as to cohabitation, I answer, 1. it is not to be done upon passions and discontents, to feed and gratify each others vicious distempers or interest: for then both the consent and the separation are their sins: but if really such an uncurable unsuitableness be between them, as that their lives must needs be miserable by their cohabitation, I know not but they may live asunder; so be it, that (after all other means used in vain) they do it by deliberate, free consent. But if one of them should by craft or cruelty constrain the other to consent, it is unlawful to the constrainer. Nor must impatience make either of them ungroundedly despair of the cure of any unsuitableness which is really curable. But many sad instances might be given, in which cohabitation may be a constant calamity to both, and distance may be their relief, and further them both in God's service, and in their corporal concernments. Yet I say not that this is no sin; for their unsuitableness is their sin: and God still obligeth them to lay down that sin which make them unsuitable; and therefore doth not allow them to live asunder, it being still their duty to live together in love and peace; and saying they cannot, freeth them not from the duty. But yet that moral impotency may make such a seperation as foresaid, to be lesser sin than their unpeaceable cohabitation.
[i]Quest[/i].VI. May not the relation itself be dissolved by mutual, free consent, so that they may marry others?
[i]Answ.[/i] As to the relation, they will still be related as those that did not covenant to live in conjugal society, and are still allowed it and obliged to it, if the impediments were but removed; and it is but the exercise which is hindered. And they may not consent to marry others: 1. Because the contracted relation was for life, Rom vii.2, and God's law accordingly obligeth them. Marriages [i]pro tempore,[/i] dissoluble by consent, are not of God's institution, but contrary to it. 2. They know not but their impediments of cohabitation may be removed. 3. If he that marrieth an innocent divorced woman commit adultery, by parity of reason (with advantage) it will be so here. If you say, what if either of them cannot contain? I answer, he that will not take heed before, must be patient afterwards, and not make advantage of his own folly, to the fulfilling of his lusts. If he will do what he ought to do in the use of all means, he may live chastely. And, 4. The public interest must overrule the private, and that which would be unjust in private respects, may for public good become a duty: it seemeth unjust here with us, that the innocent country should repay every man his money, who between sun and sun is robbed on the road; and yet because it will engage the country to watchfulness, it is just, as for the common good: and he that consenteh to be a member of the commonwealth, doth thereby consent to submit his own right to the common interest. So here, if all should have leave to marry others when they consent to part, it would bring utter confusion, and it would encourage wicked men to abuse their wives, till they forced them to consent. Therefore some must bear the trouble which their folly hath brought on themselves, rather than the common order should be confounded.
[i]Quest.[/i] VII. Doth adultery dissolve the bond of marriage, or not? Amesius saith it doth: Mr. Whateley having said so, afterward recanted it by the persuasion of other divines.
[i]Answ.[/i] The difference is only about the name, and not the matter itself. The reason which moved Dr. Ames is, because the injured person is free; therefore not bound: therefore the bond is dissolved. The reason which Mr. Whateley could not answer is, because it is not fornication, but lawful, if they continue their conjugal familiarity after adultery: therefore that bond is not dissolved. In all which is easy to perceive, that one of them taketh the word [i]vinculum[/i] or bond in one sense, that is "for their covenant obligation to continue their relation and mutual duties." And the other taketh it in another sense, that is, "for the relation itself as by it they are allowed conjugal familiarity, if the injured person will continue it." The first [i]vinculum[/i] or bond is dissolved, the second is not. In the matter we are agreed, that the injured man may put away an adulterous wife (in a regular way) if he please; but withal that he may continue the relation if he please. So that his continued consent shall suffice to continue it a lawful relation and exercise; and his will, on the contrary, shall suffice to dissolve the relation, and disoblige him. (Saving the public order.)
[i]Quest.[/i] VIII. But is not the injured party at all obliged to separate, but left free?
[i]Answ.[/i] Considering the thing simply in itself, he is wholly free to do as he please. But for all that accidents or circumstances may make it one man's duty to divorce, and another's duty to continue the relation; according as it is like to do more good or hurt. Sometimes it may be a duty to expose the sin to public shame, for the prevention of it in others; and also to deliver oneself from calamity. And sometimes there may be so great repentance, and hope of better effects by forgiving, that it may be a duty to forgive: and prudence must lay one thing with another, to discern on which side the duty lieth.
[i]Quest.[/i] IX. Is it only the privilege of the man, that he may put away an adulterous wife? or also of the woman, to depart from an adulterous husband? The reason of the doubt is, because Christ mentioneth the man's power only, Matt. v. and xix.
[i]Answ.[/i] 1. The reason why Christ speaketh only of the man's case is, because he was occasioned only to restrain the vicious custom of mens causeless putting away their wives; having no occasion to restrain women from leaving their husbands. Men having the rule did abuse it to the woman's injury; which Christ forbiddeth. And as it is an act of power, it concerneth the man alone; but as it is an act of liberty, it seemeth to me to be supposed, that the woman hath the same freedom; seeing the covenant is violated to her wrong. And the apostle in 1 Cor. vii. doth make the case of the man and of the woman to be equal in he point of infidelity and desertion. I confess that it is unsafe extending the sense of Scripture beyond the importance of the words upon pretence of a parity of reason (as many of the perjured do by Lev. xxx. in case of vows): lest man's deceitful wit should make a law to itself as divine, upon pretence of interpreting God's laws: but yet when the plain text doth speak but of one, (that is, of men's putting away their wives,) he that will thence gather an exclusion of the woman's liberty, doth seem by addition to be the corrupter of the law. And where the context plainly showeth a parity of reason, and that reason, and that reason is made the ground of the determination in the text, there it is safe to expound the law extensively accordingly. Surely the covenant of marriage hath it's conditions on both parts: and some of those conditions are necessary to the very being of the obligations, though others are but needful to the well-being of the parties in that state. And therefore though putting away be only the part of the husband, as being the ruler, and usually the owner of the habitation, yet departing may be the liberty of the wife. And I know no reason to blame those countries, whose laws allow the wife to sue out a divorce, as well as the husband.
[i]Quest.[/i] X. May the husband put away the wife without the magistrate, or the wife depart from the husband, without a public legal divorce or license?
[i]Answ.[/i] Where the laws of the land do take care for the provision of injuries, and make any determination in the case, (not contrary to the law of God,) there it is a christian's duty to obey those laws: therefore if you live under a law which forbiddeth any putting away or departing, without public sentence or allowance, you may not do it privately upon your own will. For the civil governors are to provide against the private injuries of any of the subjects. And if persons might put away or depart at pleasure, it would introduce both injury and much weakness into the world. But where the laws of men do leave persons to their liberty in this case, they need then to look no further than to the laws of God alone. But usually the sentence of the civil power is necessary only in case of appeal, or complaint of the party injured; and a separation may be made without such a public divorce, so that each party may make use of the magistrate to right themselves if wronged. As, if the adultery be not openly known, and the injuring party desire rather to be put away privily than publicly, (as Joseph purposed to do by Mary,) I see not but it is lawful so to do, in case that the law, or the necessity of making the offender an example, require not the contrary, nor scandal or other accidents forbid it not. See Grotius's learned notes on Matt. v 31, 32, and on Matt. xix. and 1 Cor. vii. about these questions.
[i]Quest.[/i] XI. Is not the case of sodomy or buggery a ground for warrantable divorce as well as adultery?
[i]Answ.[/i] Yes, and seemth to be included in the very word itself in the text, Matt. v 31,32, which signifieth uncleanness; or at least is fully implied in the reason of it. See Grotius ibid. also of this.
[i]Quest.[/i] XII. What if both parties commit adultery? may either of them put away the other, or depart; or rather must they forgive each other?
[i]Answ.[/i] If they do it both at once, they do both forfeit the liberty of seeking any compensation for the injury; because the injury is equal (however some would give the advantage to the man): but if one commit adultery first, and the other after; then either the last offender knew of the first, or not. If not, then it seemeth all one as if it had been done at once. But if yea, then they did it either on a supposition of the dissolution of the matrimonial obligation, as being loosed from the first adulterer, or else upon a purpose of continuing in the first relation: in the latter case, it is still all one a if it had been done by them at once, and it is a forfeiture of any satisfaction: but in the former case, though the last adulterer did sin, yet being before set at liberty, it doth not renew the matrimonial obligation: but yet, if the first offender desire the continuance of it, and the return of the first injured party; shame and conscience of their own sin, will much rebuke them, if they plead that injury for continuance of the separation.
[i]Quest.[/i] XIII. But what if one do purposely commit adultery, to be separated from the other?
[i]Answ.[/i] It is in the other's power and choice, whether to be divorced and depart, or not, as they find the good or evil consequents preponderate.
[i]Quest.[/i] XIV. Doth not infidelity dissolve the relation or obligation; seeing there is no communion between light and darkness, a believer and an infidel?
[i]Answ.[/i] It maketh it unlawful for a believer to marry an infidel (except in case of true necessity); because they can have no communion in religion. But it nullifeth not a marriage already made, nor maketh it lawful to depart or divorce; because they may have mere conjugal communion still. As the apostle purposely determineth the case, in 1 Cor. vii.
[i]Quest.[/i] XV. Doth not the desertion of one party disoblige the other?
[i]Answ.[/i] 1. It must be considered what is true desertion. 2. Whether it be a desertion of the relation itself for continuance, or only a temporary desertion of co-habitation, or congress. 3. What the temper and state of the deserted party is. 1. It is sometimes easy, and sometimes hard to discern which is the deserting party. If the wife go away from the husband unwarrantably, though she require him to follow her, and say that she doth not desert him, yet it may be taken for a desertion, because it is the man who is to rule and choose the habitation. But if the man go away, and the woman refuse to follow him, it is not he that is therefore the deserter.
[i]Quest[/i]. But what if the man have not sufficient cause to go away, and the woman hath great and urgent reasons not to go? As suppose that the man will go away in hatred of an able preacher, and good company, and the woman if she follow him, must leave all those helps, and go among ignorant, profane, heretical persons, or infidels; which is the deserter then?
[i]Answ.[/i] If she be one that is either like to do good to the infidels, heretics, or bad persons whom they must converse with, she may suppose the God calleth her to receive good by doing good; or if she be a confirmed, well-settled christian, and not very like, either by infection, of by want of helps, to be unsettled and miscarry, it seemeth to me the safest way to follow her husband. She must lose indeed God's public ordinances by following him: but it is not imputable to her, as being out her choice; and she must lose the benefits and neglect the duties of the conjugal ordinance, if she do not follow him. But if she be a person under such weaknesses, as make her removal apparently dangerous as to her perseverance and salvation, and her husband will by no means be prevailed with to change his mind, the case is then very difficult, what is her duty, and who is the deserter. Nay, if he did but lead her into a country where her life were like to be taken away, (as under the Spanish Inquisition,) unless her suffering were like to be as serviceable to Christ as her life. Indeed these cases are so difficult, that I will not decide them; the inconveniences (or mischiefs rather) are great which way soever she take: but I most incline to judge as followeth: viz. It is considerable first, what marriage obligheth her to, simply of its own nature; and what it may do next, by ant superadded contract, or by the law or custom of the land, or any other accident. As to the first, it seemeth to me, that every one's obligation is so much first to God, and hen to their own souls and lives; that marriage as such, which is for mutual help, as a means to higher ends, doth not oblige her to forsake all the communion of saints, and the place or country where God is lawfully worshiped, and to lose all the helps of public worship, and to expose her soul both to spiritual famine and infection, to the apparent hazard of her salvation (and perhaps bring her children into the same misery); nor hath God given her husband and power to do her so much wrong, nor is the marriage covenant to be interpreted to intend it. But what any human law or contract, or other accident which is of greater public consequence, may do more than marriage of itself, is a distinct case which must have a particular discussion.
[i]Quest.[/i] But what if the husband would only have her follow him, to he forsaking of her estate, and undoing herself and children in the world (as in the case of Galeacius Carracciolus, Marqui of Vicum); yea, and if it were without just cause?
[i]Answ.[/i] If it be for greater spiritual gain, (as in his case,) she is bound to follow him; but if it be apparently foolish, to the undoing of her and her children without any cause, I see not that marriage simply obligeth a woman so to follow a fool in beggary, or out of a calling, or to her ruin. But if it be at all a controvertible case, whether the cause be just or not, then the husband being a governor must judge. The laws of the land are supposed to be just, which allow a woman by trustees to secure some part of her former estate from her husband's disposal; much more may she beforehand secure herself and children from being ruined by his willful folly: be she can by no contract except herself from his true government.
Yet she must consider, whether she can live continently in his absence; otherwise the greatest sufferings must be endured, to avoid incontinency.
2. Moreover, in all these cases, a temporary removal may be further followed, than a perpetual transmigration, because it hath fewer evil consequents.
And if either party renounce the relation itself, it is a fuller desertion, and clearer discharge of the other party, than a mere removal is.
[i]Quest.[/i] XVI. What if a man or wife know that the other in hatred doth really intend by poison, or other murder, to take away their life? May they not depart?
[i]Answ.[/i] They may not do it upon a groundless or rash surmise; nor upon a danger which by other lawful means may be avoided (as by vigilancy, or the magistrate, or especially by love and duty). But in plain danger, which is not otherwise like to be avoided, I doubt not, that it may be done, and ought. For it is a duty to preserve our own lives as well as our neighbours''. And when marriage is contracted for mutual help, it is naturally implied, that they shall have no power to deprive one another of life (however some barbarous nations have given men power of the lives of their wives.) And killing is the grossest kind of desertion, and a greater injury and violation of the marriage covenant than adultery; and may be prevented by avoiding the murderer's presence, if that way be necessary. None of the ends of marriage can be attained, where the hatred is so great.
[i]Quest.[/i] XVII. If there be but a fixed hatred of each other, is it inconsistent with the ends of marriage? And is parting lawful in such a case?
[i]Answ.[/i] The injuring party is bound to love, and not to seperate; and can have no liberty by his or her sin. And to say, I cannot love, or my wife or husband is not amiable, is no sufficient excuse; because every person hath somewhat that is amiable, if it be but human nature; and that should have been foreseen before your choice. And as it is no excuse to a drunkard to say, I cannot leave my drink; so it is none to an adulterer, or hater of another, to say, I cannot love them: for that is but to say, I am so wicked that my heart or will is against my duty. But the innocent party's case is harder (though commonly both parties are faulty, and therefore both are obliged to return to love, and not to separate). But if hatred proceed not to adultery, or murder, or intolerable injuries, you must remember hat marriage is not a contract for years, but for lie, and that it is possible that hatred may be cured (how unlikely soever it may be). And therefore you must do your duty, and wait, and pray, and strive by love and goodness to recover love, and then stay to see what God will do; for mistakes in your choice will not warrant a separation.
[i]Quest.[/i]XVIII. What if a woman have a husband that will not suffer her to read the Scriptures, nor go to God's worship public or private, or that so beateth or abuseth her, as that it cannot be expected that human nature should be in such a case kept fit for any holy action; or if a man have a wife that will scold at him when he is praying or instructing his family, and make it impossible to him to serve God with freedom, or peace and comfort.
[i]Answ.[/i] The woman must (at necessary seasons, though not when she would) both read the Scriptures, and worship God, and suffer patiently what is afflicted on her. Martyrdom may be as comfortably suffered from a husband, as from a prince. But yet if neither her own love, and duty, and patience, nor friends' persuasion, nor the magistrate's justice, can free her from such inhuman cruelty, as quite disableth her for her duty to God and man, I see not but she may depart from such a tyrant. But the man hath more means to restrain his wife from beating him, or doing such intolerable things; either by the magistrate, or by denying her what else she might have, or by his own violent restraining her, as belongeth to a conjugal ruler, and as circumstances shall direct a prudent man. But yet in case that unsuitableness or sin be so great, that after long trial there is no likelihood of any other cohabitation, but what will tend to their spiritual hurt and calamity, it is their lesser sin to live asunder by mutual consent.
[i]Quest.[/i] XIX. May one part from a husband or wife that hath the leprosy, or that hath the French pox by their adulterous practices, when the innocent person's life is endangered by it?
[i]Answ.[/i] If it be an innocent person's disease, the other must cohabit, and tenderly cherish and comfort the diseased; yea, so as to somewhat to hazard their own lives; but not so as apparently to cast them away, upon a danger not like to be avoided, unless the other's life or some greater good be like to be purchased by it.
But if it be the pox of an adulterer, the innocent party is at liberty by the other's adultery; and the saving of their own lives, doth add thereto. But without adultery, the disease alone will not excuse them from cohabitation, though it may from congress.
[i]Quest.[/i] XX. Who be they that may or may not marry again when they are parted?
[i]Answ.[/i] 1. They are released by divorce upon the other's adultery, sodomy, &c. may marry again. 2. The case of all the rest is harder. They that part by consent, to avoid mutual hurt, may not marry again; nor the party that departeth for self-preservation, or for the preservation of estate, or children, or comforts, or for liberty of worship, as aforesaid; because it is but an intermission of conjugal fruition, and not a total dissolution of the relation; and the innocent party must wait to see whether there be any hope of return. Yea, Christ seemeth to resolve it, Matt. v. 31, 32, that he is an adulterer that marrieth the innocent party that is put away; because the other living in adultery, their first contracted relation seemth to be still in being. But Grotius and some others think, that Christ meaneth this only of the man that over-hastily marrieth the innocent divorced woman, before it be seen whether he will repent and reassume her; but how can that hold, if the husband after adultery free her? May it not therefore be meant, that the woman must stay unmarried in hope of his reconciliation, till such time as his adultery with his next married wife doth disoblige her. But then it must be taken as a law for christians; for the Jew that might have many wives, disobligeth not one by taking another.
A short desertion must be endured in hope; but in case of a very long, or total desertion or rejection, if the injured party should have an untamable lust, the case is difficult. I think there are few but by just means may abstain. But if there be any that cannot, (after all means,) without such trouble as overthroweth their peace, and plainly hazardeth their continence, I dare not say that marriage in that case is unlawful to the innocent.