The just ground for divorce is “indisposition, unfitness, or contrariety of mind, arising from a cause in nature unchangeable, hindering, and ever likely to hinder, the main benefits of conjugal society, which are solace and peace.”  Without the “deep and serious verity” of mutual love, wedlock is “nothing but the empty husks of a mere outside matrimony,” a mere hypocrisy, and must be dissolved (op. cit.).

Milton goes beyond the usual Puritan standpoint, and not only rejects courts and magistrates, but approves of self-divorce; for divorce cannot rightly belong to any civil or earthly power, since “ofttimes the causes of seeking divorce reside so deeply in the radical and innocent affections of nature, as is not within the diocese of law to tamper with.”  He adds that, for the prevention of injustice, special points may be referred to the magistrate, who should not, however, in any case, be able to forbid divorce (op. cit., Bk. ii, Ch.  XXI).  Speaking from a standpoint which we have not even yet attained, he protests against the absurdity of “authorizing a judicial court to toss about and divulge the unaccountable and secret reason of disaffection between man and wife.”

In modern times Hinton was accustomed to compare the marriage law to the law of the Sabbath as broken by Jesus.  We find exactly the same comparison in Milton.  The Sabbath, he believes, was made for God.  “Yet when the good of man comes into the scales, we have that voice of infinite goodness and benignity, that ’Sabbath was made for man and not man for Sabbath.’  What thing ever was made more for man alone, and less for God, than marriage?” (op. cit., Bk. i, Ch.  XI).  “If man be lord of the Sabbath, can he be less than lord of marriage?”

Milton, in this matter as in others, stood outside the currents of his age.  His conception of marriage made no more impression on contemporary life than his Paradise Lost.  Even his own Puritan party who had passed the Act of 1653 had strangely failed to transfer divorce and nullity cases to the temporal courts, which would at least have been a step on the right road.  The Puritan influence was transferred to America and constituted the leaven which still works in producing the liberal though too minutely detailed divorce laws of many States.  The American secular marriage procedure followed that set up by the English Commonwealth, and the dictum of the great Quaker, George Fox, “We marry none, but are witnesses of it,"[335] (which was really the sound kernel in the Canon law) is regarded as the spirit of the marriage law of the conservative but liberal State of Pennsylvania, where, as recently as 1885, a statute was passed expressly authorizing a man and woman to solemnize their own marriage.[336]