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maketh 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 separation as aforesaid, to be a lesser sin than their unpeaceable cohabitation.
Quest. Vi, · May not the relation itself be dissolved by mutual, free consent, so that they may marry others ?'
Answ. As to the relation, they will still be related as those that did 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 ‘pro tempore, 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 consenteth to be a member of a 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.
Quest. vii. ' Doth adultery dissolve the bond of marriage, or not? Amesius saith it doth: and Mr. Whateley having said so, afterward recanted it by the persuasion of other divines.'
Answ. The difference is only about the name and not about 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 it is easy to perceive, that one of them taketh the word 'vinculum' or bond in one sense, that is, 'For their covenantobligation 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 vinculum' 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.)
Quest. viii. ' But is not the injured party at all obliged to separate, but left free?'
Answ. 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 one'sself from a 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.
Quest. 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. y.
Answ. 1. The reason why Christ speaketh only of the man's case is, because he was occasioned only to restrain the vicious custom of men's 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,
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 the 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 case (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 sheweth a parity of 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 its 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 wellbeing 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.
Quest. x. ' May the husband put away the wife without the magistrate, or the wife depart from the husband without a public legal divorce or licence ?'
Answ. Where the laws of the land do take care for the prevention 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, with
out 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.
Quest. XI. 'What if both parties commit adultery? may either of them put away the other, or depart; or rather must they forgive each other?'
Answ. 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 as 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.
Quest. XII, . But what if one do purposely commit adultery, to be separated from the other ??
Answ. 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.
Quest. XII. 'Doth not infidelity dissolve the relation or obligation ; seeing there is no communion between light and darkness, a believer and an infidel ?'
Answ. 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 nullifieth 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.
Quest. xiv. Doth not the desertion of one party, disoblige the other?
Answ. 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. It is sometimes easy, and sometimes hard to discern whịch 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.
Quest. 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 ?'
Answ, 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 that 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, or by want of