and depart from what is difagreeable, difpleafing, 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 unjuft or blamable in retiring from his endless trouble and distaste, when as his tarrying can redound to no true content on either fide. Hate is of all things the mightiest divider, nay is divifion itself. To couple hatred therefore, though wedlock try all her golden links, and borrow to her aid all the iron manacles and fetters of law, it does but feek to twift a rope of fand, which was a task they say that pofed the devil: and that fluggish fiend in hell, Ocnus, whom the poems tell of, brought his idle cordage to as good effect, which never ferved to bind with, but to feed the afs that stood at his elbow. And that the restrictive law against divorce attains as little to bind any thing truly in a disjointed marriage, or to keep it bound, but ferves only to feed the ignorance and definitive impertinence of a doltifh canon, were no abfurd allufion. To hinder therefore thofe deep and serious regreffes of nature in a reafonable foul, parting from that mistaken help, which he justly feeks in a perfon created for him, recollecting himself from an unmeet help which was never meant, and to detain him by compulfion in fuch an unpredefined mifery as this, is in diameter against both nature and inftitution: but to interpofe a jurisdictive power over the inward and irremediable difpofition of man, to command love and fympathy, to forbid diflike against the guiltlefs inftinct of nature, is not within the province of any law to reach; and were indeed an uncommodious rudeness, not a juft power: for that law may bandy with nature, and traverfe her fage motions, was an errour in Callicles the rhetorician, whom Socrates from high principles confutes in Plato's Gorgias. If therefore divorce may be fo natural, and that law and nature are not to go contrary; then to forbid divorce compulfively, is not only against nature, but against law.

Next, it must be remembered, that all law is for some good, that may be frequently attained without the admixture of a worfe inconvenience; and therefore many grofs faults, as ingratitude and the like, which are too far within

the foul to be cured by constraint of law, are left only to be wrought on by confcience and perfuafion. Which made Ariftotle, in the 10th of his Ethies to Nicomachus, aim at a kind of divifion of law into private or perfuafive, and public or compulfive. Hence it is, that the law forbidding divorce never attains to any good end of fuch prohibition, but rather multiplies evil. For if nature's refiftlefs fway in love or hate be once compelled, it grows careless of itself, vicious, useless to friends, unferviceable and fpiritlefs to the commonwealth. Which Mofes rightly forefaw, and all wife lawgivers that ever knew man, what kind of creature he was. The parliament alfo and clergy of England were not ignorant of this, when they confented that Harry the VIII might put away his queen Anne of Cleve, whom he could not like after he had been wedded half a year; unless it were that, contrary to the proverb, they made a neceffity of that which might have been a virtue in them to do: for even the freedom and eminence of man's creation gives him to be a law in this matter to himfelf, being the head of the other fex which was made for him; whom therefore though he ought not to injure, yet neither fhould he be forced to retain in fociety to his own overthrow, nor to hear any judge therein above himfelf. It being alfo an unfeemly affront to the fequeftered and veiled modefty of that fex, to have her unpleafingnefs and other concealments bandied up and down, and aggravated in open court by thofe hired mafters of tongue-fence. Such uncomely exigencies it befel no lefs a majefty than Henry the VIII to be reduced to, who, finding juft reafon in his confcience to forego his brother's wife, after many indignities of being deJuded, and made a boy of by thofe his two cardinal judges, was constrained at last, for want of other proof, that the had been carnally known by prince Arthur, even to uncover the nakednefs of that virtuous lady, and to recite openly the obfcene evidence of his brother's chamberlain. Yet it pleafed God to make him fee all the tyranny of Rome, by difcovering this which they exercifed over divorce, and to make him the beginner of a reformation to this whole kingdom, by firft afferting into his familiary power the right of juft divorce. It is true, an adulterefs

adulterefs cannot be fhamed enough by any public proceeding; but the woman whofe honour is not appeached is lefs injured by a filent difmiffion, being otherwife not illiberally dealt with, than to endure a clamouring debate of utterlefs things, in a bufinefs of that civil fecrecy and difficult difcerning, as not to be overmuch queftioned by nearest friends. Which drew that anfwer from the greatest and worthieft Roman of his time, Paulus Emilius, being demanded why he would put away his wife for no vifible reafon? This fhoe,' faid he, and held it out on his foot, is a neat fhoe, a new fhoe,, and yet none of you know where it wrings me:' much lefs by the unfamiliar cognizance of a feed gamefter can fuch a private difference be examined, neither ought it.

Again, if law aim at the firm establishment and prefervation of matrimonial faith, we know that cannot thrive under violent means, but is the more violated. It is not when two unfortunately met are by the canon forced to draw in that yoke an unmerciful day's work of forrow till death unharnefs them, that then the law keeps marriage most unviolated and unbroken; but when the law takes order, that marriage be accountant and refponfible to perform that fociety, whether it be religious, civil, or corporal, which may be confcionably required and claimed therein, or elfe to be diffolved if it cannot be undergone. This is to make marriage moft indiffoluble, by making it a juft and equal dealer, a performer of thofe due helps, which inftituted the covenant; being otherwife a moft unjuft contract, and no more to be maintained under tuition of law, than the vilest fraud, or cheat, or theft that may be committed. But because this is fuch a fecret kind of fraud or theft, as cannot be difcerned by law but only by the plaintiff himself; therefore to divorce was never counted a political or civil offence, neither to Jew hor Gentile, nor by any judicial intendment of Chrift, further than could be difcerned to tranfgrefs the allowance of Mofes, which was of neceffity fo large, that it doth all one as if it fent back the matter undeterminable at law, and intractable by rough dealing, to have inftructions and admonitions beftowed about it by them whofe fpiritual office is to adjure and to de

nounce,

nounce, and fo left to the confcience. The law can only appoint the juft and equal conditions of divorce, and is to look how it is an injury to the divorced, which in truth it can be none, as a mere feparation; for if the confent, wherein has the law to right her? or confent not, then is it either juft, and fo deferved; or if unjuft, fuch in all likelihood was the divorcer: and to part from an unjust man is a happiness, and no injury to be lamented. But fuppose it to be an injury, the law is not able to amend it, unless the think it other than a miferable redrefs, to return back from whence fhe was expelled, or but intreated to be gone, or elfe to live apart ftill married without marriage, a married widow. Laft, if it be to chasten the divorcer, what law punishes a deed which is not moral but natural, a deed which cannot certainly be found to be an injury? or how can it be punished by prohibiting the divorce, but that the innocent muft equally partake both in the fhame and in the fmart? So that which way foever we look, the law can to no rational purpose forbid divorce, it can only take care that the conditions of divorce be not injurious. Thus then we fee the trial of law, how impertinent it is to this question of divorce, how helpless next, and then how hurtful.

CHAP. XXII.

The last reafon why divorce is not to be restrained by law, it being against the law of nature and of nations. The larger proof whereof referred to Mr. Selden's book,

De Jure Naturali & Gentium.' An objection of Paraus anfwered. How it ought to be ordered by the church. That this will not breed any worse inconvenience, nor fo bad as is now fuffered.

THEREFORE the last reafon, why it fhould not be, is the example we have, not only from the noblest and wifeft commonwealths, guided by the clearest light of human knowledge, but alfo from the divine teftimonies of God himself, lawgiving in perfon to a fanctified people, That all this is true, whofo defires to know at large with

leaft

leaft pains, and expects not here overlong rehearsals of that which is by others already fo judiciously gathered; let him haften to be acquainted with that noble volume written by our learned Selden, Of the Law of Nature and of Nations,' a work more useful and more worthy to be perufed by whofoever studies to be a great man in wisdom, equity, and juftice, than all thofe, 'decretals and fumless fums,' which the pontifical clerks have doted on, ever fince that unfortunate mother famoufly finned thrice, and died impenitent of her bringing into the world those two mifbegotten infants, and for ever infants, Lombard and Gratian, him the compiler of canon iniquity the other the Tubalcain of fcholaftic fophiftry, whofe overfpreading barbarism hath not only infufed their own baftardy upon the fruitfulleft part of human learning, not only diffipated and dejected the clear light of nature in us, and of nations, but hath tainted also the fountains of divine doctrine, and rendered the pure and folid law of God unbeneficial to us by their calumnious dunceries. Yet this law, which their unfkilfulness hath made liable to all ignominy, the purity and wifdom of this law fhall be the buckler of our difpute. Liberty of divorce we claim not, we think not but from this law; the dignity, the faith, the authority thereof is now grown among Chriftians, O aftonishment! a labour of no mean difficulty and envy to defend. That it should not be counted a faultering difpenfe, a flattering permiffion of fin, the bill of adultery, a fnare, is the expenfe of all this apology. And all that we folicit is, that it may be suffered to stand in the place where God fet it, amidst the firmament of his holy laws, to shine, as it was wont, upon the weakneffes and errours of men, perishing elfe in the fincerity of their honeft purpofes: for certain there is no memory of whoredoms and adulteries left among us now, when this warranted freedom of God's own giving is made dangerous and difcarded for a fcroll of licence. It must be your fuffrages and votes, O Englishmen, that this exploded decree of God and Mofes may fcape and come off fair, without the cenfure of a fhameful abrogating: which, if yonder fun ride fure, and means not to break word with us to morrow, was never yet abrogated by our Saviour. Give fen

tence.