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In book one, chapter VIII, of The Doctrine & Discipline of Divorce, it is written:

Upon these principles I answer, that a right beleever ought to divorce an idolatrous heretick unlesse upon better hopes: however, that it is in the beleevers choice to divorce or not.

The former part will be manifest thus; first, an apostate idolater whether husband or wife seducing was to die by the decree of God, Deut. 13. 6, 9. that mariage therfore God himself dis-joyns: for others born idolaters the morall reason of their dangerous keeping and the incommunicable antagony that is between Christ and Belial, will be sufficient to enforce the commandment of those two inspir’d reformers, Ezra and Nehemiah, to put an Idolater away as well under the Gospel.

The latter part, that although there be no seducement fear’d, yet if there be no hope giv’n, the divorce is lawfull, will appeare by this, that idolatrous marriage is still hatefull to God, therfore still it may be divorc’t by the patern of that warrant that Ezra had; and by the same everlasting reason: Neither can any man give an account wherefore, if those whom God joyns, no man may separate, it should not follow, that, whom he joyns not, but hates to joyn, those man ought to separate: but saith the Lawyer, that which ought not have been don, once don, avails. I answer, this is but a crotchet of the law, but that brought against it, is plain Scripture.

I tried to decode Milton, I read it like so:

[...]: Neither can any man give an account why, if those whom God joyns, no man may separate, it should not follow, that, whom he [God] does not join, but hates to join, those man ought to separate: but says the person in favour of the canon law, that which ought not have been done, once done, avails. I answer, this is but a crotchet of the law, but that brought against it, is plain Scripture.

  1. What does Milton mean here by that which ought not have been done? Is wedlock with an idolater described by this phrase?

  2. In what sense is avail used here?

  3. What does Milton mean by the crotchet of the law?

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Milton is saying that it is legitimate for a true believer to divorce an unbeliever, whether or not the unbeliever tries to seduce the true believer away from the true faith. There are three possible situations:

  • The true believer hopes to convert the idolator to the true religion. This is the only situation in which Milton says the true believer can choose to remain in the marriage.
  • The idolator does not try to seduce the true believer away from the true faith.
  • The idolator does try to seduce the true believer away from the true faith.

In the latter two cases, Milton argues that the true believer not only can but should divorce the idolator. Since only marriage between true believers is legitimate in the eyes of God, there is no spiritual or moral justification for a believer to marry or remain married to an idolator. Indeed, such a marriage cannot exist except in name, as true marriage is a union sanctioned by God, and God would not join such a pair.

According to the law, however, a marriage between a true believer and an idolator "avails", that is, remains in force, because it has taken place legally. Milton calls this "a crotchet of the law". Crotchet is used in the following sense as defined in Merriam-Webster:

a: a highly individual and usually eccentric opinion or preference.
b: a peculiar trick or device

That is to say, such a marriage is merely a legal quirk. It has no moral or spiritual validity, and so the law should be amended to allow divorce in such cases.

It is worth remembering that the Puritan Milton would use "idolator" to describe not only non-Christians, but also Roman Catholics and even High Church Anglicans, because their adoration of saints, the Virgin Mary, etc. would be idolatrous in his eyes.

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