Quest. 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.
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 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 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 oneself 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. v. and xix.
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, 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 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 showeth 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 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.
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 license?
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, 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.
Quest. XI. Is not the case of sodomy or buggery a ground for warrantable divorce as well as adultery?
Answ. Yes, and seemeth 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.