Milton, Marriage, and a Woman's Right to Divorce

Matthew Biberman *

Milton's reliance on John Selden's Uxor Hebraica [Jewish Wife] (1646) as a major source for his final position on divorce has been increasingly argued by a number of Milton's critics since Eivion Owen's pioneering essay in 1946. ¹ In a recent essay, Christopher Hill introduces this connection as the first piece of evidence in his argument that the author of On Christian Doctrine (DDC) is in fact John Milton, a question that had been opened by William B. Hunter:

The unknown author should be fairly easy to identify. He had published treatises on divorce. Milton has a very idiosyncratic definition of "fornication" as grounds for divorce: "any notable disobedience or intolerable carriage in a wife" (Tetrachordon, Yale Prose, 2:672). Selden, whom Milton regarded as an authority on such matters (Commonplace Book, Yale Prose, 1:403; Doctrine and Discipline, Yale Prose, 2:350) "still more fully explained this point" in his Uxor Hebraica, two years later than Milton (Second Defense, Yale Prose, 4:625). The author of the DDC also saw "fornication" as a reason for divorce, and also had an unusual definition of the word: "continual headstrong behavior," "the lack of some quality which might reasonably be required in a wife" (Yale Prose, 6:378). He too attributed his view to Selden's Uxor Hebraica (Yale Prose 6:378). Interesting coincidences. ²

Setting aside the question of the DDC's authorship, ³ the "coincidences" Hill points to (in the Miltonic texts) suggest, upon closer examination, that [End Page 131] Milton derived more from the Uxor than just his "idiosyncratic" philological argument that the Greek word porneia found in Matthew 5:32 is not in fact the common term for either "adultery" or "fornication" (as it was translated), and that therefore, on the basis of philological examples and argument, porneia could be given looser interpretations, such as Hill's citations. ⁴ It may well be more than probable, then, that Milton took from the Uxor not just this specific argument in support of his conviction that Christians had the right to divorce, but rather he found in Selden a clear vision of what he would embrace and adopt as his own conception of what marriage was as an institution in its broadest, and indeed, its most archetypal form. In fact I would like to suggest that recasting the connection between Milton and Selden so that it focuses on this larger concept sheds light on several important aspects of Milton's thought, specifically, two issues: first, Milton's holistic conception of marriage, because his idea of divorce must be understood as a part of this larger concept; and second, the extent to which this re-evaluation demonstrates that in Milton's interpretation of marriage law, women possess the right to divorce. Although some critics might argue that Milton's marital circumstances would not allow him to extend this right to women, by his own logic, such a right could not be denied them.

I. The Hebraic Model of Marriage

One matter that Selden takes up in the Uxor that was to have a lasting impact on Milton was the significance of the Hebrew word chupah (roughly, "canopy" or "enclosure"). Crucial is chapter 13 of book two, subtitled "The Leading into the Nuptial Chamber of which there are traces in both the Old and New Testaments. The Marriage is in all respects consummated" (JSJML, p. 179). Here Milton read that in the opinion of Maimonides, "The marriage blessings do not make a marriage; rather it is leading into the chamber" (JSJML, p. 179). ("Non benedictio Sponsorum facit seu perficit nuptias, sed deductio in thalamum" [UH, p. 181].) In his explicit discussion of this quotation, Selden explains unequivocally that, for Maimonides, it is intercourse between husband and wife that institutes the sacred law. Intercourse need not take place, but it must be assumed or permissible, and so the rabbis say that the marriage is not considered consummated if the woman is unpure (i.e. "in her menses"), and that in this instance the marriage is to be delayed until such time as it is permissible. It is easy to see why this chapter would remain lodged in Milton's mind since it makes very clear the idea that the state has nothing to do with the institution of marriage [End Page 132] --and furthermore, neither does the priesthood. Nor are there any required formal blessings or rituals beyond simple consummation and the consequent mutual knowledge of the man and the woman that they are now husband and wife.

In every way, the central conception of marriage as expounded by the rabbis matches Milton's ideal--two people telling each other in their own words how much they love each other and then consummating their love. Moreover, Milton could not have rejected the attitude displayed here by the rabbis in regard to conjugal love. As Selden's chapter progresses, for example, he takes up a discussion of the history of the chupah, noting that although the chupah now stands for a ceremonial canopy under which the bride and groom stand while they exchange vows, it originally has a broader definition: "In fact, khupah is derived from the word khafef which means to cover, and by its nature signifies a place where the couple is hidden or covered" such as a "room or enclosure" (JSJML, p. 182). He locates such an instance in the Hebrew Bible, citing Joel 2:16: "Let the groom go forth from his room; the bride from her chamber [chupah]" (JSJML, p. 182). Glossing the verse, Selden explains that the groom is to leave his bachelor quarters and enter the bride's chupah where the marriage is consummated, after which the couple emerges married. Thus in its broadest sense, chupah can mean any private space in which a couple can consummate the marriage. ⁵ In order to convey the spirit of this ceremony, Selden includes the following midrashic commentary:

Rabbi Eliezer said, "A groom is compared to a king. A king does not go forth unaccompanied [to the market place]; neither does the groom . . . A king wears elegant clothes; so does a groom during his seven days of celebration . . . Just as a king has a face as bright as the sun, so it is with a groom as it is said, 'And his face is like a bridegroom coming out of his chamber.'" Such is said of the sun with which the groom's emergence from the wedding chamber is compared both with respect to his elegant clothes and the great joyfulness at the discharge of nuptial obligation during the wedding celebrations. On this consult that fine scholar, Daniel Heinsius in his Aristarchus Sacer.

(JSJML, p. 182)

The presence of such a passage, with its positive representation of sex, helps explain why Milton had such a devotion to Selden and the significance of his providing England with this information. That is to say, Milton [End Page 133] discovered here a book that articulately and learnedly expressed his own deepest sentiments concerning sex: contrary to Paul's teaching for the unmarried and widows who cannot contain themselves ("better to marry than burn" [1 Cor. 7:9]), sex is presented here not as a way to avoid sin but as a blessing.

The impact of this aspect of Selden's Uxor can be found in Sonnet 9 ("Lady that in the prime of earliest youth"). ⁶ Addressed to an unknown woman--to whom it offers up both praise and advice--this poem was composed during the time the divorce tracts were written, and it too explores the forging of a Judeo-Christian synthesis centered on conjugal love. ⁷ Here, the poet's declaration that the addressed woman is one who has "chosen
. . . the better part with Mary and with Ruth" reflects Milton's belief in the underlying unity of the Old and New Testaments, of Gospel and Law (1.5). After this praise, he then concludes with the following admonition:

       "Therefore be sure
Thou, when the bridegroom with his feastfull friends
Passes to bliss at the mid hour of night,
Hast gain'd thy entrance, Virgin wise and pure."

(11.11-4)

It has been widely noted that these lines complete an extended conceit on the parable of the ten bridesmaids as told in Matthew 25:1-13: the wise virgins provided themselves with sufficient oil so that when the bridegroom arrived late in the night they were able to meet him and accompany him into the wedding hall. The foolish virgins, however, "arrived later. 'Lord, Lord,' they said, 'open the door for us.' But he replied, 'I tell you solemnly, I do not know you.'" But while Milton's sonnet certainly alludes to this parable, at the same time, it reflects his knowledge that the Uxor's groom emerges displaying "great joyfulness at the discharge of nuptial obligation during the wedding celebrations" (JSJML, p. 182). By acknowledging that Sonnet 9 references both Matthew and the Uxor, we can more readily explain why Milton chose to emphasize the carnal overtones when writing of the bridegroom passing to bliss, gaining "thy entrance." If the bridegroom here is simply Jesus there is no reason for him to be "passing" to bliss, since conventionally Christ is bliss itself. The word "passes," attached as it is to the bridegroom, thus prepares the reader to read "thy" not as "he has gained you thy entrance into heaven" but as "he has come inside you," a graphic pun that merits acknowledgment. Christ the Bridegroom has "entered" her being spiritually, and the mortal bridegroom has [End Page 134] "entered" her in coition. Clearly in this sonnet we have at once a vision of the abstract divine salvation conveyed in the parable and of the earthly bliss explicitly rendered in the midrash Milton had read in Selden. The connection is further strengthened by the fact that Selden cites the bridesmaid parable at the end of book 2, chapter 13, as an example of the appearance of a chupah in the New Testament: "Moreover the passage cited about the ten virgins and the groom coming together at the same time is to be understood as a consummation" (JSJML, p. 183).

Any doubt as to the clarity of the Uxor on this point is cleared up in other sections of Selden's overall argument. For example, he devotes an entire chapter to the discussion of the husband's responsibility to have sex with his wife, noting that because polygamy is permissible, this injunction to intercourse implies that sex is not to be done simply for procreation. It is to be done as an act of love. The rabbis deduced this from the verse "Be fruitful and multiply" (Gen. 1:28). The collocation of "fruitful" and "multiply" was said to make the verse both a positive commandment to procreate and a blessing in that the act of love is itself a mitzvah (commandment); thus even if the husband has sufficient children to meet the commandment (a boy and a girl), he is still to fulfill his duty to his wife. As Selden comments, the ideal for the Jewish husband is such fulfillment "[f]rom Sabbath night to Sabbath night if he has the strength. These are the words of the talmudists," implying that the prescribed time is once a week (JSJML, p. 312). He notes too that Schammai--as usual--differed with Hillel on the matter, holding that once every two weeks was sufficient (JSJML, p. 309). ⁸ Exceptions are extended to traders (camel drivers, one month; sailors, six months) and other men who are required to be absent from home (JSJML, p. 310), and even in respect to students of the Law who are aspiring to "the first ranks of the study, even if it is for two or three years, if the situation demands it, the wife has no power to force them to render their obligation" (JSJML, p. 312). Not meeting this obligation is grounds for divorce, the fault falling on the husband and as such the bride is entitled to have her dowry refunded and (if she presses the point) compensation equivalent to her time of deprivation, the penalty being "three silver denarii [a week] until he divorces her" (JSJML, p. 313). This law of the mored 'al ishto [the rebel against his wife] is also applied to the moedeth 'al ba 'alah [the rebel against her husband], but the penalty is different: "'her dowry is diminished by seven denarii per week' until there is nothing left" (JSJML, p. 315). If an accusation is made of rebelliousness in regards to this obligation (or any other area of necessity such as the provision and acceptance of food, shelter, clothing, and medication) and then disputed by the other party, "and it [End Page 135] is not possible to determine which one is contumacious, then the judges, according to a legal ruling should decide and conciliate them if possible" (JSJML, p. 315).

The attitude of the rabbis toward sex would have been even more startling to Milton because it is so polarized from Paul and the church tradition. As Golda Werman illustrates in "Love in Eden," the final chapter of Milton and Midrash, Milton found himself in a climate that often found sex repugnant. ⁹ Following the lead of Paul, who praised celibacy, the Church presented marriage as a hedge against the worst kind of depravity: since most people are going to give in to lust and fleshly sin it is better for them to marry. For Paul, if the unmarried must sin, then they should do so only in the married state. Even then, ministers in Milton's day encouraged couples to abstain, suggesting that they try to limit intercourse to no more than about twice a month. What for the rabbis stood as a minimum becomes perverted (in Milton's eyes) into a maximum. The corruption couldn't be clearer. The same inversion is present in ministerial attitudes toward sex on the Sabbath, which was castigated as an insult before the Lord's eyes.

In sum, in Selden's Uxor Hebraica, Milton found the blueprint for his conception of marriage law, for how the contract was made, and for how the contract was ended. Any analysis that begins by treating Milton's idea of divorce in isolation from its place within the larger issue of marriage law simply overcomplicates it because Milton always approaches that issue as a subset of this broader law. On the other hand, once the matter of divorce is addressed in the context of Milton's comprehensive position on marriage, there is very little to say: what two people make by having sex, they unmake when either one of them decides to stop having sex. It is that simple. In the Tetrachordon (1645), written after his exposure to Selden and his most important, indeed definitive divorce tract, Milton sums up the matter quite clearly. Gathering all these threads I have been pursuing, Milton there provides a definition of the "divine institution" of marriage as the source for and model of all subsequent social contracts:

That consent I mean which is a love fitly dispos'd to mutual help and comfort of life; this is that happy Form of mariage naturally arising from the very heart of divine institution in the Text . . . This makes mariage not a bondage, a blessing not a curse, a gift of God not a snare . . . a lawful love constitute[s] the formal cause it self of mariage, how can the essence thereof subsist, how can it bee indeed what it goes for? Conclude therfore by all the power of reason, [End Page 136] that where this essence of mariage is not, there can bee no true mariage; and the parties either one of them, or both are free, and without fault rather by a nullity, then by a divorce may betake them to a second choys; if thir present condition be not tolerable to them.

(YP 2:613)

Owen writes, "In Tetrachordon Milton is really propounding a theory of marriage rather than merely a theory of divorce; he is setting forth (as he was doing so, though rather less explicitly, in The Doctrine and Discipline) the romantic view of marriage, which enjoys wide currency today but which is certainly not the view traditionally held by the Christian church" (SMD, pp. 243-4). More than that, however, the ramifications of Milton's conception of marriage clearly extend beyond this single legal issue, for here in perspicuous language even Hobbes might have approved of, we have the core of Milton's liberal vision, of society as a contract, one that is freely made and freely broken by the parties who sign. At the same time it is absolutely essential to note that Milton explicitly extends the right of divorce to both the husband and the wife.

II. A Woman's Right to Divorce in Milton

Milton's subsequent arguments about divorce are best approached from a critical perspective that starts with the Hebraic model of marriage examined above. Indeed, overlooking this larger framework has often led to a deficient understanding of Milton's stand on divorce, particularly of how the reforms he proposes would ultimately come to affect women. Critics such as Stephen Orgel and Jonathan Goldberg now feel comfortable stating in their introduction to the Oxford John Milton: "We must also come to terms with the fact that the right of divorce insisted upon is solely a male prerogative: no provision is imagined for women with marital grievances." ¹⁰ The Tetrachordon, however, as I have indicated, explicitly extends the right to divorce to women: "the parties either one of them, or both are free, and without fault rather by a nullity, then by a divorce may betake them to a second choys" (YP 2:613). While one could perhaps still argue that though Milton extends the right in theory to women, he does not set forth a concrete legal mechanism for them to exercise this right, I would find such an argument flawed because the ground in Milton's argument is always his sense that we are discussing not divorce law but the nature of marriage. He clearly believes that marriage is a contract made by [End Page 137] both the man and the woman, not by the church and certainly not by the state. In The Likeliest Means, for example, Milton explicitly confesses that he finds "no ground in scripture" for the Church to "meddle" with "marriages"; rather, marriage is a "houshold contract, a thing indifferent and free to the whole race of mankinde" (YP 7:299). Only by acknowledging this aspect of Milton's concept of marriage law, I believe, can we arrive at a balanced, critical view of Milton's attitude toward women as it pertains to this specific legal issue.

As habitually presented by critics now, the divorce scenario Milton entertains is always one in which 1) it is the woman at fault, and 2) it is only the man who has recourse to the power of divorce. Olga Lucía Valbuena's recent argument is characteristic: "Divorce for Milton is a process of coming to masculine consciousness. It involves radical separation and realignment, in this case from embracing the feminine to absolutely repudiating it. Divorce means freedom from the tyranny of enslavement to any woman, monarch, or way of thought that would constrict masculine self-determination." ¹¹ In similar fashion Stanley Fish presents us with a Milton who scorns marriage as a temptation and sees resistance to it as indicative of a noble soul who will be able to avoid other potentially greater sins, such as acquiescing to secular or theological authorities. According to Fish, Milton believes that "The man who 'starts back' from mixture and refuses to spend the 'radical moisture' of his 'fountainhead' remains in a 'filial relation with God,' while the man who gives himself up to an 'unbeseeming motion'--either by leaving the Bible to 'gadder after' supplements or by allowing a woman to 'delay [his] duty to religion' [YP 2:262-3]--exchanges that relation for marriage to an inferior, either in the form of a commentary that comes after or of a creature who is 'subsequent.'" ¹² Given the dominance of such a perspective, I am aware that to such critics my argument might seem aberrant, especially in its assertion that 1) Milton sees marriage and divorce as interrelated parts of a single concept and 2) that he entertains a holistic vision of marriage law such that it can be called a truly democratic social contract, one entered into by two equals. In response to their anticipated exceptions, let me say here that the critiques offered by Valbuena and Fish (to which we could add work by Annabel Patterson and others) I regard as insightful psychological accounts of Milton's handling of gender in his writing. ¹³ I am, in short, not going to deny the power of these critiques. Certainly, Milton is not a modern feminist. Even in that accepted context, however, his tracts must be seen as genuine attempts to enact legal reform by earnestly trying to persuade the powers-that-be to pass a more liberal divorce law. Even were he vigorously in favor of granting this [End Page 138] right to women, making this point explicit would have only hurt his cause. His audience after all is not women, but a group of men sitting in Parliament (and the Assembly). A shrewd logician and rhetorician, Milton knew that his "it could happen to you" argument was his best shot. ¹⁴

Yet one must admit that Milton has little difficulty in warming to the task, to put it mildly. His masculinism emerges repeatedly, but such passages are interspersed with a relatively dispassionate attempt to work out a philosophy in which divorce is made freely available to all Christians. The observation I am driving at is that these two tendencies are, at least at times, in open conflict. ¹⁵ While Milton demonstrably may not be thrilled to extend the right of divorce to women, the logic of his Hebraic model of marriage leads inexorably to their inclusion in the right. Indeed, I find it difficult not to believe that he knew if he received his right to divorce, women would get theirs eventually, whether he liked it or not. Moreover, additional support for my argument that Milton's Hebraic model of marriage inevitably extends the right of divorce to woman may be found in the Uxor. In his description of Jewish marriage law, Selden repetitively argues and explains two points: that divorce is permitted and that the juridical procedure as evolved in the rabbinic texts enables women, as well as men, to exercise this right. On the other hand, he never unequivocally states exactly how a contemporary Jewess would go about obtaining a Get (a bill of divorcement), more than likely, because he never, or rarely, goes on record in a definitive way with any issue when he is unsure of his evidence, and he is unsure about a woman's right to divorce in Judaism. As Jonathan R. Ziskind explains, such blank spots exist because Selden was unable to observe a functioning Jewish community, but he does cite the relevant rabbinic precedents and offers suggestions about how in this particular matter they could, or would, logically be applied. ¹⁶

Before proceeding to Selden's analysis of a woman's right to divorce under Jewish law, it may be helpful to offer here a few prefatory comments about the experience of reading the Uxor Hebraica. It's a very long book, the body of which (in Ziskind's magisterial translation) is close to 500 pages, divided into three books, which in turn are divided into chapters. Simply put, the organizational structure is: who can marry whom (book 1), how one marries (2), and how one divorces (3), and although it is fair to say that there is a narrative at work, the real spirit of the book makes it a vast and largely unsystematized compendium stuffed with what are seemingly infinite observations on every aspect of marriage law, Jewish and otherwise. The textual digressions range seemingly at random, back and forth through the centuries, taking up every conceivable angle on the subject: linguistic, [End Page 139] anthropological, legal, philosophical, theological, and so forth. As Jason P. Rosenblatt has observed, "Selden's work is difficult to plunder," which suggests that Milton had to have studied it copiously in order to master it sufficiently to put it to such effective use (TL, p. 97). In all that difficulty, however, Selden's method is strikingly distinctive in ways that can help us determine the influence he had on Milton. In order to see that method at work, we need to study some of the crucial passages in which Selden takes up women's rights under Jewish law.

The first area of discussion that may have caught Milton's eye in this regard is Selden's discussion of--not divorce, but something similar--the renunciation of levirate marriage. According to Deuteronomy 25, if a husband dies childless then the brother must marry the widow to preserve the family line; such a required marriage is called a levirate marriage, and as Ziskind notes, this law was difficult to administer because of contradictions with other biblical passages, chief among them Leviticus 18, which asserts that it is incest to marry one's sister-in-law (JSJML, p. 95 n. 241). Selden first observes that the law of levirate marriage applied only to brothers who had the same father, next that there was no formal marriage ceremony, and finally that the brother could perform a renunciation ceremony (called Halitsa), after which both he and the widow were freed from their obligation and so could marry whomever they wished. If Milton did indeed study Halitsa in order to determine where it may be used as a biblical precedent for the legitimization of the practice of divorce in a Christian England, he would have been following in the tradition of Henry VIII, who sent Richard Croke to consult with Italian Jewish scholars in order to test out the viability of this very strategy, and in so doing, can be said to have begun the tradition of importing Rabbinica as part of the English Reformation (HJ, p. 112). After explaining how a levirate marriage works, Selden then paraphrases Deuteronomy 25:7-10, thereby providing his readers with a concise and vivid account of the actual Halitsa ceremony:

[the widow] shall approach him in the eyes of the elders and pull his shoe from his foot and spit before him, [this is how the word, befanav, should be understood it does not mean in his face as is commonly understood]; and she should answer him saying, "So it shall be for the man who does not build the house of his brother," and the name of his house shall be called in Israel "he-who-took-off-his-shoe," or "the shoeless one." This was how the matter was normally handled.

(JSJML, p. 98) [End Page 140]

Although the scene here is initiated by the man (the brother having refused to assume his obligation), Selden implies that under certain circumstances the widow could approach the court and have the court order the brother-in-law to perform the ceremony. In such cases, the practical result is that it is the widow who initiates the proceedings. Selden writes, "There are many exceptions according to the interpretation of the law . . . and we shall point out a few cases in connection with that law. If the husband leaves a brother who is a mamzer [bastard] or an apostate, the surviving widow or brother is not bound by this law" (JSJML, p. 99). Seizing upon this loophole, a woman could assert that the man she is supposed to marry is either a bastard or an apostate and thus demand that the law of renunciation be applied at her urging. Selden also notes that "kings and their widows because of royal dignity . . . were exempted" from having to enter into a levirate marriage (JSJML, p. 101). Next, since "[t]he purpose of the law is to engender children," eunuchs and hermaphrodites are also ruled to have "no authority over a sister-in-law" (JSJML, p. 101), and finally Selden ends with this proviso: "Also in this situation is the leper or one defiled by foul breath or any other situation in which it would be permissible for a wife to demand a divorce as is printed out below" (JSJML, pp. 101-2).

Here Selden provides the legal grounds (ones that could be construed rather broadly, especially by a Christian reader such as Milton) which a woman could use to instigate a Halitsa ceremony; and even more importantly, Selden also identifies these provisions as precedents for a woman to instigate a proper divorce. Although this information concerning Halitsa may seem a distracting aside in my presentation of Selden's account of "proper" divorce under Jewish law, it is not, because Milton himself uses an image in The Doctrine and Discipline of Divorce that parallels the description of the Halitsa ceremony as given in Selden and in Deuteronomy 25. In support of his contention that a husband ought to have the right to divorce for any reason he saw fit, Milton quotes the following narrative taken from Plutarch: "the greatest and worthiest Roman of his time Paulus Emilius, beeing demanded why he would put away his wife for no visible reason, [responded] This Shoo, said he, and held it out on his foot, is a neat shoo, a new shoo, and yet none of you know where it wrings me" (YP 2:348). In reading the Uxor, Milton could have easily brought together this scene from Plutarch and Selden's account of the Halitsa ceremony. From this conjunction, he could imagine that it is a woman, rather than a man, holding up the shoe, and furthermore, he could imagine that it was the woman who instigated the proceedings. The woman in question would have to be a queen, or of "royal dignity," or willing to call her potential husband a [End Page 141] bastard, an apostate, eunuch, or a foul-mouth; she would, in short, have to do whatever it took to get the court to order the potential husband to agree to the Halitsa, and provided she had the gumption, she could probably get what she wanted.

The next likely stop for Milton, if he were pursuing this thread, would be chapter 22 of book 3, which bears the subtitle "Recapitulation of the Law of the Divorce." Early on Selden writes that under Noachide law, "the law for all mankind before the giving of the Mosaic law, and after the Mosaic law was given, was the law for all mankind except the Jews . . . Divorce was permitted to either party of the union without the introduction of a document or any other object to withdraw from or plainly dissolve a marriage or a life partnership that was previously contracted. The words of the Talmud are, 'Each of the spouses sends the other away at will'" (JSJML, p. 400). As an advocate of divorce, Milton could hardly have missed this passage, because adopting its substance would allow him to construct a Christian theology simultaneously antinomial and pro-divorce. Because most of his fellow Christians believed that Jesus Christ had brought an end to Mosaic law, he could effectively argue that the fortuitous effect that momentous achievement had was that Christians were now living under Noachide law, a code that just happens to permit divorce. Such an argument is the more plausible because advocating some form of "natural" law as a legitimate basis for contemporary Christian jurisprudence was a major subject during Milton's day. The received doctrine (generally identified as Pauline) that the coming of Jesus had abolished the Mosaic law forced Christians to confront the unsettling proposition that no law could be justly advocated as Godly. To solve the problem, many thinkers reproduced the traditional rabbinic distinction between Noachide and Mosaic law and employed it in order to assert that a moral law was still in place. In Law of The Old Testament in Tudor and Stuart England, Judah Newberger conducts an extensive survey, noting the various forms theologians used to articulate this generic solution. For example, "William Hinde assures his readers that this abrogation does not refer to the moral law which is not 'wholly abolished but only much of Moses' law, as made any difference betwixt Jews and Gentiles.'" ¹⁷ However informed Hinde's "assurance" was, his approach does make use of the specific rabbinic teaching concerning Mosaic (Jewish) law and Noachide (Gentile) law, a distinction made clear in the Uxor. In erecting such a defense against Christianity's antinomial currents, Hinde and other like-minded English divines were following Calvin who had written, "it is certain that the law of God, which we call the moral law, is no other than a declaration of natural law, and of that conscience [End Page 142] which has been engraven by God on the minds of men, the whole rule of this equity, of which we now speak is prescribed in it" (qtd. in HJ, p. 167). And of course, at the center of any such discussion of this topic as it relates to Milton is Selden's earlier work, De Jure Naturali & Gentium Juxta Disciplinam Hebraeorum (1640), which explores this schematic at length and applies it to various juridical models (principally Greek, Roman, and Christian, in addition to the Hebrew).

Milton shows his familiarity with this discourse and its terminology in the divorce tracts, and the same logic appears in On Christian Doctrine. In the Doctrine, we read:

Man was made in the image of God, and the whole of law of nature was so implanted and innate in him that he was in need of no command. It follows, then, that if he received any additional commands, whether about the tree of knowledge or about marriage, these had nothing to do with the law of nature, which is itself sufficient to teach whatever is in accord with right reason (i.e., whatever is intrinsically good). These commands, then, were simply a matter of what is called positive right. Positive right comes into play when God, or anyone else invested with lawful power, commands or forbids things which, if he had not commanded or forbidden them, would in themselves have been neither good nor bad, and would therefore have put no one under any obligation.

(YP 6:353)

Contemporary readers of this tract would easily recognize the particular solution the author has applied here to the problem which many Christians saw as following from a belief in the abrogation of the "whole" of the law, for he posits something he calls "right reason" which he defines as an innate code implanted in man. This "right reason" therefore is not technically "law." There is little doubt that Milton was very familiar with this concept of "right reason," as we find it defined in DDC, and that Milton would have recognized that this concept closely matches the rabbinic doctrine of Noachide law as outlined both in the Uxor and in De Jure Naturali. Thus, the philosophical position clearly and concisely marked out in this passage from On Christian Doctrine undergirds the argument made in Milton's divorce tracts. In The Doctrine and Discipline, for example, Milton writes that Canon law has wrongly wrested "the power & arbitrement of divorce from the master of family, into whose hands God & the law of all Nations had put it, & Christ so left it, preaching only to the conscience, and not authorizing [End Page 143] a judiciall Court to tosse about and divulge the unaccountable and secret reasons of disaffection between man & wife" (YP 2:343). Furthermore, when he came to revise the DDD, Milton chose to end the tract with a chapter arguing that "divorce is not to be restrain'd by Law, it being against the Law of nature and of Nations. The larger proof wherof referr'd to Mr. Seldens Book De jure naturali & gentium" (YP 2:350). Milton consistently maintains that there exists prior to all civil law a moral apparatus which he locates in the mind, calling it, for example, "conscience." Civil law is then left to be defined as what On Christian Doctrine terms a "positive right," thus emphasizing the implication that civil law is a medium through which morality is recognized and established in order to regulate society. As such, civil laws that deviate or negate "conscience" are unjust and require revision.

In the divorce tracts, Milton references Mosaic law as part of two different appeals, and although the appeals threaten to contradict each other, each is consistent with the two-tiered model outlined above. He will on occasion argue that the abrogation of the Mosaic law places Christians under the moral law, a state of affairs in which divorce is legal, but more often, he will argue that Mosaic law is a unique example of civil law in that it originated from God through Moses. In this instance, therefore, Mosaic law must be a harmonious expression of moral law. The conclusion, then, is that since Mosaic law permits divorce, natural law must permit divorce as well, and so Christians ought to agree with Milton and sanction divorce. The unsettling implication in the second argument is that, for all practical purposes, Christians seem bound once again by the Mosaic law. Although this vacillation may be seen to reflect a lingering uncertainty in Milton's attitude toward Mosaic law, the fact remains that it occurs within a larger framework which remains stable. In other words, regardless of whether Milton references Mosaic law or not, he always grounds his argument in a conception of a prior moral code, and this moral code matches Noachide law as Milton encountered it in Selden. In the Uxor, as we have seen, Noachide law unambiguously permits divorce; indeed, it even goes so far as to omit any paperwork. At the same time, under Noachide law, women are flatly granted equal rights in the matter of divorce. Recognizing the clarity of the Selden source on this point reveals much to us about Milton's own handling of the matter. He has to have understood that the divorce law he is proposing, in all likelihood, would extend that right to women as well as men, unless he himself openly departed from his Hebraic model. At times, he does appear to pointedly place that power in the "hands" of "the master of the family," clearly the man, but just as often, such restrictions [End Page 144] are erased as Milton seeks to hammer home his basic argument that divorce is a practice not to be regulated in any way; it is outside of law, a matter to be settled by the man and the woman according to conscience. In those key passages, Milton returns to the simple and persuasive language of the Noachide law as given in the Uxor--"Each of the spouses sends the other away at will"--echoing it directly in the key passage I have quoted twice before: "the parties either one of them, or both are free, and without fault rather by a nullity, then by a divorce may betake them to a second choys." ¹⁸

According to the Uxor, then, it is only Jewish women who cannot utilize this simple law because they alone must adhere to Mosaic law. In this same chapter, Selden explains:

Nor, as before, was divorce permitted to wives; it was now permitted only to husbands. Josephus, as we have said above, already said that the bill of divorcement Salome gave to Costabarus was "outside the legal teachings of the Jews." Although the Sacred Law does not expressly deny to wives the authority to freely divorce, it has been interpreted this way, because the only way of divorcing clearly prescribed in that law is by the husband, and they decided that the earlier and more permissive Noachide law on the grounds for divorce was implicitly denied or diminished with respect to their wives. On this matter, see the nineteenth chapter, the end of the seventeenth and other places regarding the act of a court that is, on occasion, competent to compel a husband to divorce a woman. Thus, by the intervention of the court which forced a husband to grant a document, the wife, in effect, divorces him.

(JSJML, pp. 402-3)

Thus, even as he is pointing out new restrictions, Selden persistently indicates that even under Mosaic law channels are available through which a wife could attempt to get a divorce. For him rabbis sympathetic to the plight of women took the Mosaic law ("When a man hath taken a wife, and married her, and it come to pass that she find no favor in his eyes, because he hath found some uncleanness in her: then let him write her a bill of divorcement, and give it in her hand, and send her out of his house" [KJV Deut. 24:1]) and proceeded to read it as, in effect, a partial statement, and then they completed it so that for legal purposes it read: if a man finds something unseemly in his wife, he may send her away, and if a woman finds something unseemly in her husband, she may request that the court order [End Page 145] the husband to send her away. Because this precedent is so clearly articulated in Selden, it seems hardly unreasonable to assume that Milton would expect his own divorce law to acquire such an application. The fact that he does not expressly discuss this point does not mean that he was unaware of it. Indeed it seems more likely to conclude that if his silence suggests anything, it suggests his tacit consent to such a later development. As a result, even if it is assumed that Milton wished to erect the more restrictive Mosaic law, such a reform would provide a mechanism for women to initiate the procedure. That is to say, he may very well have favored a two-stage emancipation process: first the men, then the women.

Furthermore, anyone awake to the moral sensibility at work in Jewish marriage law, and Selden clearly was, can see what route the rabbis are encouraging women to take who wish to obtain a Get: she should go to her husband first (not the court), and tell him she wants to leave him. Neither the woman nor the man should darken the rabbi's door without telling each other what is about to transpire. If things can't be reconciled, then it is the husband who will obtain the divorce (thereby assuming the shame and thus shielding the woman). On those occasions when the woman still wishes a divorce but the husband won't grant it, the wife now goes to the rabbi, who then pays a visit to the husband, telling him to divorce his unhappy wife. If he still refuses, then the rabbinic court will probably grant it to her. The conclusion is that Jewish law as it evolved is not propounded to make the woman suffer--and Selden clearly sees this.

As for the catch-all grounds that the rabbis will cite for simple incompatibility, Selden knows in all likelihood what those had to be. At the end of chapter 17, he writes, "Now if after the wedding the husband became dirty with a foul odor in the mouth or nose or collected foul things such as dog excrement or debases himself with disgusting things or traffics in leather, (these being examples of husbands regarded as hardly suitable for wifely embraces) the wife, either by her decision voluntarily acquiesces to those things or makes a case in court and is sent away with her dowry" (JSJML, p. 370). It is the same precedent used by the court to grant a renunciation to a widow who does not wish to enter into a levirate marriage. From here it is almost impossible not to deduce that Selden saw that the trend in the Halachah (law, especially oral law) as set down in the fifth century Talmud to be not to assert that the wife has to go to the husband but the husband can go straight to the rabbinical court; instead it is that husband and wife are to be directed to consult with each other so that the decision to divorce will be a mutual one. In a recent study of Halachah, Eliezer Berkovits offers us a good summary of how marriage law continued to evolve in order to emancipate women: [End Page 146]

Among the best-known new post-talmudic regulations are the bans of Rabbenu Gershon (10th cent.) against polygamy (a ruling foreshadowed already in the Talmud) and against the husband who divorces his wife against her will. The Herem (ban) of Rabbenu Gershon implied the exclusion of the violator from the community. The Rosh (Rabbenu Asher, father of the author of the Turim, who in his code created the structure of the Shulhan Arukh of Rabbi Yosef Karo), in one of his responsa remarked that the purpose of Rabbenu Gershon in requiring the wife's consent to a divorce was "to equalize the power of the woman to that of the man: as he divorces only by his free will, so can she not be divorced either except if she freely agrees to a divorce." ¹⁹

These facts go unrecorded by Selden because, as stated earlier, he didn't have access to a functioning independent Jewish Community.

As I hope the reader has already gleaned, Selden is highly attuned to issues of language and of interpretation, such that in this case, the entire argument can be said to rest on an understanding of the word "foul." At least as it appears initially, "foul" is limited in its meaning to a small set of cases based on issues of physical hygiene. Although Selden ventures into this idea somewhat gingerly because of a lack of facts, he still manages to write in such a way as to charge the word "foul" with omnibus signification and to imply while nowhere openly asserting that it is a simple matter of moving "foul" from context to context until it can be seen as acquiring (or already carrying) the meaning "incompatible for any reason and thus grounds for divorce." Even so, the right of a woman to divorce under Jewish law remains problematic, the clear compromise being that the woman has the power to refuse to grant the divorce, the man the power to initiate it. When both are in agreement, this division of power works smoothly, but if the wife wishes to initiate the divorce and the husband refuses, she is still dependent on the rabbinical court to grant the divorce. As Berkovits notes, not all rabbinic authorities ruled that the court could in fact make the husband issue the Get if he did not choose to volunteer it (JSJML, p. 101). ²⁰ Although it is important to note such facts, they are peripheral to the matter at hand. In sum, what I have attempted to show is that the Uxor Hebraica provides us, and provided Milton, with an extremely detailed account of how divorce is handled under Jewish law and therefore illuminates how Milton would have specifically implemented his calls for a divorce law. Whether Milton favored a Halitsa inspired divorce law, a Noachide derived divorce law, or a Mosaic divorce law, on the basis of Selden's compendium, he would have included a means by which women [End Page 147] could initiate the process. ²¹ Milton's rhetoric on this specific issue suggests that the wording of his proposed legal reform would closely match Mosaic law (Deut. 24:1), but that in turn this text would be given an interpretation derived from the model Selden presents as Noachide divorce law. The result would be egalitarian.

In addition, I believe it important to recognize from my preceding analysis that Milton learned more from Selden than just some facts concerning Jewish marriage law. Ultimately, Selden taught Milton how to use methodical philological argument and place it in the service of a political cause. In the specific instance we have been examining, Selden writes in such a way as to suggest how rabbis sympathetic to the plight of Jewish women would simply seize upon the word "foul" and deconstruct it, shuffling it from context to context, and each time noting the word's instability until their opponents would have to accept the point that the word has multiple significations. ²² "Foul" thus begins its life meaning an obvious physical characteristic but it becomes, like beauty, a thing determined only by the eye of the beholder. Perhaps indeed, this lesson in deconstruction is the most important and lasting influence of Selden on Milton. Once recognized, Milton's fundamental argument concerning Jesus's strictures on divorce becomes only another version of this same game. In Tetrachordon (the most elaborate and systematic of the divorce tracts), for example, Milton selects four passages from the Old and New Testament, deconstructs their meanings, and then reconstructs one global meaning that can be found in them all. Thus he can seize on the Greek word porneia, move it from context to context until he has destabilized its meaning, and then fashion a meaning of his own to fit the word. Ironically, in his role as divorce advocate Milton turns out to be in a position parallel to that of a Jewish woman under Mosaic law, and he attempts to extricate himself by using the same strategy available to her. Several critics before me, as noted earlier, have explained how Milton's interpretation of the word "fornication" plays itself out, and my argument in this essay has been to show that this much-seized-upon aspect of Milton's praxis derives from his adoption of an approach to marriage that is steeped in both Hebraism and philology. In turn, these two characteristics reflect Milton's intensive study of and thinking about Selden's Uxor Hebraica. Pursuing this influence in some detail allows us to see that on the matter of marriage law Milton takes a position that is close to being a pure form of anarchism, and if it opens our eyes to anything, it ought to remind us that Milton was an idealist and a romantic. For Milton, a man and a woman make a marriage when they make love. And when a man or a woman falls out of love, he or she does just as [End Page 148] Mary Powell did--for whatever her reasons--he or she leaves the spouse. That action, that decision to leave the marriage bed voids the marriage.

Matthew Biberman is an assistant professor of English at the University of Louisville. This essay, as well as an essay published in the December 1997 issue of the Milton Quarterly, is taken from his current project, a book-length study of Milton as a Christian Hebraist.

Notes

* I would like to thank Stanley Fish, Robert Gleckner, and the anonymous SEL readers for their generous, supportive, and insightful critiques.

1. Eivion Owen, "Selden and Milton on Divorce," SP 43 (1946): 233-57, henceforth SMD. Jason P. Rosenblatt provides a detailed account of Milton's debt to Selden on this matter in his Torah and Law in Paradise Lost (Princeton: Princeton Univ. Press, 1994), pp. 83-113; henceforth TL. Building on Owen's work, Rosenblatt cogently explains how "Milton's interpretation of Deuteronomy's divorce law in accord with ancient Jewish theory and practice is an important example of rabbinic influence mediated by Selden" (TL, p. 97). See also Martha Ziskind's discussion of Selden's presentation of Jewish marriage law in John Selden: Humanist Jurist (Ph.D. diss., Univ. of Chicago, 1972), pp. 218-24; henceforth HJ. For a general analysis of Selden, see chapter four of Richard Tuck's Natural Rights Theories: Their Origin and Development (New York: Cambridge Univ. Press, 1979); henceforth NRT. See also David Sandler Berkowitz's John Selden's Formative Years: Politics and Society in Early Seventeenth-Century England (Washington: Folger Shakespeare Library; London and Cranbury NJ: Associated Univ. Presses, 1988) and Harold J. Berman's "The Origins of Historical Jurisprudence: Coke, Selden, Hale," Yale Law Journal 103, 7 (May 1994): 1651-738.

2. Christopher Hill, "Professor William B. Hunter, Bishop Burgess, and John Milton," SEL 34, 1 (Winter 1994): 165-93, 169. Hill is responding to William B. Hunter's "The Provenance of the Christian Doctrine," SEL 32, 1 (Winter 1992): 129-42 and Hunter's "The Provenance of the Christian Doctrine: Addenda from the Bishop of Salisbury," SEL 33, 1 (Winter 1993): 191-207. Hunter has incorporated these essays into Visitation Unimplor'd: Milton and the Authorship of "De Doctrina Christiana" (Pittsburgh: Duquesne Univ. Press, 1998). Milton's reference to Selden in the Commonplace Book is to De Jure Naturali & Gentium Juxta Disciplinam Hebraeorum, Libri Septem (1640), and Milton's reference in Defensio Secunda is to the augmented second edition of Doctrine and Discipline of Divorce (henceforth DDD) in which he cites De Jure (also referred to in Areopagitica, p. 11). All references to Milton's prose are to Complete Prose Works of John Milton, ed. Don Wolfe et al., 8 vols. (New Haven: Yale Univ. Press, 1953-82), henceforth YP; subsequent references will appear in the text. All references to the Uxor Hebraica in English are to John Selden on Jewish Marriage Law: The Uxor Hebraica, trans. Jonathan R. Ziskind (New York: E. J. Brill, 1991), henceforth JSJML; subsequent references appear in the text. The Latin is cited from Uxor Hebraica (London: Richardi Bishopii, 1646), henceforth UH, and all subsequent references appear in the text.

3. On the subject of the authorship of On Christian Doctrine, see Gordon Cambell, Thomas Corns, John Hale, David Holmes and Fiona Tweedie, "Milton and De Doctrina Christiana" (The Milton Quarterly Resources page: http://voyager.cns.ohiou.edu/ ~ somalley/ddc.html, accessed July 16, 1998). Cambell et al. conclude that DDC "was a working manuscript under revision by Milton" with "stylometric characteristics" similar to "Milton's practice in the production of Artis Logicae" (ddc.html). For a critique of Hill's essay and analysis of the reference to Selden in DDC, see Paul R. Sellin, "The Reference to John Milton's Tetrachordon in De Doctrina Christiana," SEL 37, 1 (Winter 1997): 137-49. Sellin concludes that "[t]he sentence in question is too poorly constructed and too imprecise to qualify as good, finished composition. Hence to infer an ironclad specific cross-reference from such syntax to one of Milton's other works from such syntax is hardly prudent" (p. 146).

4. The entry in Liddell and Scott 's Greek-English Lexicon (Oxford: Clarendon Press, Abridged, 1871, 1990 impression) for porneia reads "fornication: prostitution." As Martha Ziskind explains, Selden effectively argues in the Uxor Hebraica that the meaning of porneia could only be determined by context and, in doing so, offers "so many meanings for the term porneia as to imply that translating the word as 'fornication' was an exegetical error on the part of both Catholic and Protestant theologians" (HJ, p. 222). On this point Milton and Selden differ chiefly only in that Selden willingly accepts that the received tradition of interpreting porneia as "fornication" is evidence of some persuasive force. Milton is far more invested in maintaining that Jesus' intended meaning is, in effect, any meaning perceived to be justified grounds for terminating the marriage contract. In Uxor 3.27, Selden identifies three basic legal positions in the debate--adultery, adultery plus a series of limited acts equivalent in the eyes of the law to the crime of adultery, and any action thought sinful by any of the involved parties. Milton, on the other hand, is unequivocally an adherent for the last-named position; witness Tetrachordon where he writes, the word "is to be understood as the language of Christ understands it, for a constant alienation and disaffection of mind" (YP 2:673). In the first edition of DDD Milton emphasizes Grotius as a supporting authority for the assertion that Christ's use of the word porneia possesses multiple meanings that render it unstable so that it can designate "such things as gave open suspicion of adulterizing" (YP 2:334), but from this passage alone, Milton's reader can perceive that Grotius's position possesses less latitude than Milton would like to claim for porneia because the offensive action must still retain a clear causal connection to adultery. Grotius's position, therefore, would seem to be an example of the second of Selden's three legal opinions concerning porneia, an inference born out by Grotius's comments on the matter in De Jure Belli et Pacis (1625) where he does register the ambiguity of porneia in the Gospels, but eventually comes to support an interpretation in which Christ's intended meaning is to limit the Deuteronomic law: "I acknowledge that before the time of Christ some things were permitted, either as matters of impunity, or as not destroying purity of mind . . . which Christ did not permit to his followers; as, to put away a wife for every cause [ut ob qualemcumque offensam uxorem dimittere]" (William Whewell, trans., 3 vols. [London: John W. Parker, 1853]), Lib. I Ch. 2 vi.8, p. 56. Logically, Milton began to cite Selden more prominently than Grotius because of the Uxor's unapologetic assertion that porneia can be defined only by its context, thus restricting interpreters to speculation: "Nihil hic definimus de loci sensu. Consideranda tantum proponimus" (UH: Lib. 3.23 [496], also cited by Owen, SMD, p. 249).

5. For a discussion of the chupah and Milton's likely use of it in Paradise Lost, see Golda Werman, Milton and Midrash (Washington DC: Catholic Univ. of America Press, 1995), pp. 57-8. For a critique of Werman's claims, see Rosenblatt (TL, pp. 95-7). My essay is indebted to the work of both critics.

6. All references to Milton's poetry are to The Riverside Milton, ed. Roy Flannagan (Boston: Houghton Mifflin, 1998); subsequent references appear in the text with line numbers.

7. The dating of this poem is accepted as 1643-45. Although the Uxor was published in 1646, Owen and Rosenblatt have argued convincingly that Milton had access to the manuscript before writing Tetrachordon. Rosenblatt observes that "[f]ive times in De Jure [1640] Selden indicates that Uxor Ebraica is ready for the press, and Eivion Owen has already argued persuasively that Milton had access to the manuscript before writing Tetrachordon" (TL, p. 87). Tetrachordon was published on 4 March 1645. The second edition of DDD (referencing De Jure but not Uxor) was published on 2 February 1645. In part, because of these facts, Owen concludes, "On the whole I am unable to find any evidence that his (apparently) recent reading of Selden influenced Milton in making any of the alterations and additions that he inserted in the second edition of The Doctrine and Discipline" (SMD, p. 237). In my dissertation, John Milton: The Triumph of "Christian Hebraism" in Verse (Duke Univ., 1998), I argue that regardless of Milton's citations, the interpolated argument in the second edition of DDD concerning Deuteronomy 24:1 and the meaning of the Hebrew phrase "nakednes of ought, or any reall nakednes" (YP 2:242-5) strongly suggests that Milton had possession of the Uxor before 2 February 1645, because this addition contains the same philological point Owen so astutely identifies in Tetrachordon as having its source in Selden--the "elucidation of the controversy" over the meaning of the Hebrew phrase 'ervath davar' in Deuteronomy 24:1 that Owen expresses in English as "'something unseemly'" (SMD, p. 247). Another likely debt not mentioned by Owen is Milton's argument in Tetrachordon that porneia's meaning could be strictly limited to "prostitution of body for sale" (YP 2:672), "a matter" Selden claims "no one . . . has considered" (JSJML, p. 408). As Rosenblatt also notes (TL, p. 87), Masson, Milton's biographer, asserts that it is "not improbable" that Milton had "made Selden's personal acquaintance" by 1643-44 (The Life of John Milton [London: Macmillan, 1896], vol. 3, p. 68). I would suggest that Milton acquired the MS Uxor shortly after 1 August 1643, the publication date of DDD, ed. 1, but chose not to cite it in DDD, ed. 2, perhaps at the request of Selden.

If my argument is correct, then the vague reference to Selden in DDC (YP 6:377-8; Latin MS qtd. in Sellin, p. 139), on which Sellin has recently written, may indicate Milton's intention to acknowledge that he used Selden's exposition of "fornication" not only in Tetrachordon but "elsewhere" ("alias") (Sellin, p. 147), that is in DDD, ed. 2, as well. In response to Sellin's query, "where specifically in the context of defining 'fornication' does he [Selden] present 'contrariness' to 'love, faithfulness, help, companionship' or similar violations of the ends of marriage as one of the possible meanings of the word?" (p. 145), I direct him and other interested readers to Lib. 3.27 where Selden explains that the third position concerning porneia is "any sinful act" (i.e. "contrariness") and quotes Bede: "Fornication is to be understood not only in the sense of lewdness which is committed with someone else's men or women but every lust, greed or idolatry which causes man to stray from the law of God" (JSJML, pp. 462, 461). See also Peter Levi's provocative surmise that Milton first met Selden in the late 1630s, and that Selden inspired Milton's turn toward politics (Eden Renewed: the public and private life of John Milton [London: Macmillan, 1996], p. 73); Levi also characterizes (aptly, in my opinion) Milton's 1643-45 prose tracts as the work of "Selden's disciple" (p. 140).

8. Hillel and Schammai (first century BCE) formed the last of the five Zugot ("pairs"); traditionally the first (in this instance, Hillel) was the nasi ("prince") of the Sanhedrin, and the second the av bet din ("father of the court"). Characterized in The New Standard Jewish Encyclopedia, ed. Cecil Roth and Geoffrey Wigoder (Garden City NY: Doubleday, 1970) as "friend[s] and ideological opponent[s]," Hillel and Schammai founded "houses" (or "schools") that "diverged in many instances, but legal practice ultimately went in almost all cases according to the decision of the House of H[illel]" (p. 907). Hillel's seven middot (rules) lie at the root of talmudic hermeneutics; Milton's interpretation of porneia could be identified as an application of Hillel's kal ve-chomar (inference from major to minor or vice versa). On this general subject see Susan A. Handelman's The Slayers of Moses: The Emergence of Rabbinic Interpretation in Modern Literary Theory. (Albany: State Univ. of New York Press, 1982) and Marc-Alain Ouaknin's The Burnt Book: Reading the Talmud, trans. Llewellyn Brown (Princeton NJ: Princeton Univ. Press, 1995); Moses Mielziner's Introduction to the Talmud, 3d edn. (New York: Bloch, 1925), collocates the Hebrew and English hermeneutical terms. Hillel is also identified as the author of "What is hateful to you, do not unto your neighbor" (Tal. Shab. 31a).

9. Werman, pp. 151-67.

10. Stephen Orgel and Jonathan Goldberg, "Introduction" in John Milton: A Critical Edition of the Major Works (New York: Oxford, 1991), p. xvii.

11. Olga Lucía Valbuena, "Milton's 'Divorsive' Interpretation and the Gendered Reader," MiltonS 27 (1992): 115-37, 134.

12. Stanley Fish, "Wanting a Supplement: The Question of Interpretation in Milton's Early Prose." in Politics, Poetics, and Hermeneutics in Milton's Prose, ed. David Loewenstein and James Grantham Turner (Cambridge: Cambridge Univ. Press, 1990): 41-68, 64.

13. In "No Meer Amatorious Novel?," in Politics, Poetics, and Hermeneutics in Milton's Prose, ed. Loewenstein and Turner (Cambridge: Cambridge Univ. Press, 1990), pp. 85-101, Annabel Patterson locates a "masculinist bias, that no matter what happened later in Paradise Lost, cannot be explained away" (p. 85). In "The Genesis of Gendered Subjectivity in the Divorce Tracts and in Paradise Lost," in Re-membering Milton: Essays on the Texts and Traditions, ed. Nyquist and Margaret W. Ferguson (New York: Methuen, 1987), pp. 99-127, Nyquist analyzes what she identifies as "the deeply masculinist assumptions at work in Milton's articulation of a radically bourgeois view of marriage" (p. 106). Critics dissenting from the presentation of Milton as a masculinist include Joseph Wittreich (Feminist Milton [Ithaca: Cornell Univ. Press, 1987]) and Philip Gallagher (Milton, the Bible, and Misogyny, ed. Eugene R. Cunnar and Gail L. Mortimer [Columbia: Univ. of Missouri Press, 1990]). More recently, another collection, Of Poetry and Politics: New Essays on Milton and His World, ed. P. G. Stanwood (Binghamton NY: MRTS, 1995), deepens the discussion; see, for example, Donald M. Friedman's "Divisions on a Ground: 'Sex' in Paradise Lost," (pp. 201-12). Friedman, as well as the other cited authors, provide extensive bibliographical information on this set of subjects.

14. In Uncloistered Virtue: English Political Literature, 1640-1660 (Oxford: Clarendon Press, 1992), Thomas N. Corns suggests that the "masculinism" and the "denigration of human sexuality" present in the divorce tracts are part of a rhetorical strategy designed to persuade Milton's target audience, "namely the Assembly, composed in the main of figures of a strict Presbyterian orthodoxy" (p. 43). In light of this "polemical context," Corns concludes that "we must recalibrate our political expectations" when we examine Milton's divorce tracts (p. 43).

15. Critics who identify Milton's position on divorce as overwhelmingly or uniformly masculinist will very often register the ambiguity I am identifying but then characterize it as either insignificant or as a manifestation of Milton's subconscious. Thus Patterson, who falls in the former camp, notes that the title pages of both versions of DDD "declare that the institution of marriage in England at that time demands revision for 'the good of both sexes,'" but she then dispatches this information as "a claim easily refuted by today's readers of both sexes, who quickly discover the passages of masculinist bias" ("No Meer Amatorious Novel?," p. 85). Alternately, Richard Corum characterizes his essay, "In White Ink: Paradise Lost and Milton's Ideas of Women," in Milton and the Idea of Woman, ed. Julia M. Walker (Urbana and Chicago: Univ. of Illinois Press, 1988), pp. 120-47, as an effort "to recover an invisible 'Milton' inscribed in white ink . . . which an ambitiously obedient Milton has labored to erase" (p. 121). In a similar spirit, Turner characterizes the "ecstatic egalitarian love" expressed at times in Paradise Lost as the unbidden product of Milton's imagination (see chapter seven of his book, One Flesh: Paradisal Marriage and Sexual Relations in the Age of Milton [Oxford: Clarendon Press, 1987]), pp. 230-309, 285. By introducing the Uxor into this discussion, I argue that Milton was aware of this conflict and its complex gender components.

16. Jonathan R. Ziskind, "Introduction," JSJML, pp. 1-30, 28-30.

17. Judah Newberger, The Law of the Old Testament in Tudor and Stuart England (New York Univ., Ph.D. diss., 1976), pp. 187-8.

18. Milton expresses this sentiment elsewhere in Tetrachordon; note, for example, "the wife also, as her subjection is terminated in the Lord, being her self the redeem'd of Christ, is not still bound to be the vassall of him, who is the bondslave of Satan: she being now neither the image nor the glory of such a person, nor made for him, nor left in bondage to him" (YP 2:591). Also "[n]ot but that particular exceptions may have place, if she exceed her husband in prudence and dexterity, and he contentedly yeeld, for then a superior and more naturall law comes in, that the wiser should govern the lesse wise, whether male or female" (YP 2:589).

19. Eliezer Berkovits, Not in Heaven: The Nature and Function of Halakha (New York: Ktav Publishing House, 1983), p. 45. Ziskind and Berkovits disagree on the specifics of the herem. Ziskind claims it is false to attribute the ban to Rabbi Gershon and that it came into existence in the twelfth century and not the tenth (JSJML, p. 84 n. 195).

20. A woman's right to initiate a divorce under Jewish law remains tendentious. A modern orthodox Jewish woman may choose to obtain a civil divorce, but taking such an action does not terminate the marriage from a Jewish legal perspective. The husband must hand the wife a Get for the marriage to be dissolved according to Mosaic law, but "as things stand today, if the husband refuses to give a Get, the wife has no recourse to any authority" in Diaspora countries, because, outside of Israel, no Rabbinic court can intervene on her behalf (Berkovits, p. 102). This issue is called Aguna (derived from the Hebrew word ogen, "anchor") because "the woman is 'anchored,' tied to a situation from which there seems to be no release" (Berkovits, p. 41).

21. Selden criticism supports my general claim about Milton's position on divorce. Tuck, for example, writes that Selden maintained that "the marriage contract could be a civil contract of the kind which can be broken unilaterally" (NRT, p. 96). As Hill notes in his response to Hunter, Milton repeatedly indicates (in Miltonic texts) that he is in agreement with Selden on this legal issue, without stipulating a distinction between their respective positions. It seems reasonable to conclude then that both maintain that a woman could break the civil contract that is marriage. See also Wittreich's discussion of Milton's female readership and the example of Mrs. Attaway who "spok . . . of Miltons Doctrine of Divorce . . . and how accordingly she hath practiced it in running away with another womans husband" (Edwards's Gangraena, qtd. in Feminist Milton, p. 141).

This passage from Gangraena may also explain the use of the verb "docuit" in the sentence in DDC referencing Selden; in his analysis of this word, Sellin notes that "the author of De Doctrina Christiana sought, if anything, to differentiate the nature of his activity from Selden's" (Sellin, p. 143). The Second Defense also "differentiate[s]" (similarly, perhaps) Milton's polemical divorce writings from Selden's by emphasizing that Milton wrote in "the vernacular" (YP 4:610); thus, the reference to Selden in DDC may be another such instance where this specific differentiation is being made, here reflecting Milton's desire to take the credit for having incited the action of people such as Mrs. Attaway (who, presumably, could not have read Selden's Latin).

22. Selden's attention to women's rights in the Uxor is characteristic of him, as evidenced by his inclusion of the subject in one of his earliest works, The Reverse or Back-face English Janus. To-Wit, All that is met with in Story concerning the Common and Statute-Law of the English Britanny, trans. Redman Westcot (pseud.) (London: Basset and Chiswell, 1682); English translation of Jani Anglorum Facies Altera (1610).