gain; and that seeing they must either both be miserable, or both share in the same happiness, neither can find their own comfort, but in promoting the pleasure of the other. These compliances, though at first extorted by necessity, become in time easy and mutual; and, though less endearing than assiduities which take their rise from affection, generally procure to the married pair a repose and satisfaction sufficient for their happiness.

II. Because new objects of desire would be continually sought af ter, if men could, at will, be released from their subsisting engagements. Suppose the husband to have once preferred his wife to all other women, the duration of this preference cannot be trusted to. Possession makes a great difference: and there is no other security against the invitations of novelty, than the known impossibility of obtaining the object. Did the cause which brings the sexes together, hold them together by the same force with which it first attracted them to each other; or could the woman be restored to her personal integrity, and to all the advantages of her virgin estate; the power of divorce might be deposited in the hands of her husband, with less danger of abuse or inconveniency. But constituted as mankind are, and injured as the repudiated wife generally must be, it is necessary to adda stability to the condition of married women, more secure than the continuance of their husbands' affection; and to supply to both sides, by a sense of duty and of obligation, what satiety has impaired of passion and of personal attachment. Upon the whole, the power of divorce is evidently and greatly to the disadvantage of the woman; and the only question appears to be, whether the real and permanent happiness of one half of the species should be surrendered to the caprice and voluptuousness of the other.

We have considered divorces as depending upon the will of the husband, because that is the way in which they have actually obtained in many parts of the world; but the same objections apply, in a great degree, to divorces by mutual consent: especially when we consider the indelicate situation and small prospect of happiness, which remains to the party who opposed his or her dissent to the liberty and desire of the other.

The law of nature admits of an exception in favour of the injured party, in cases of adultery, of obstinate desertion, of attempts upon life, of outrageous cruelty, of incurable madness, and perhaps of personal imbecility, but by no means indulges the same privileges to mere dislike, to opposition of humours and inclinations, to contrariety of taste and temper, to complaints of coldness, neglect, severity, peevishness, jealousy not that these reasons are trivial, but because such objections may always be alleged, and are impossible by testimony to be ascertained; so that to allow implicit credit to them, and to dissolve marriages, whenever either party thought fit to pretend them, would' lead in its effect to all the licentiousness of arbitrary divorces.

:

Milton's story is well known. Upon a quarrel with his wife, he paid his addresses to another woman, and set forth a public vindication of his conduct, by attempting to prove, that confirmed dislike was as just a foundation for dissolving the marriage-contract, as adultery; to which position, and to all the arguments by which it can be supported, the above consideration affords a sufficient answer. And if a married pair, in actual and irreconcileable discord, complain that their

happiness would be better consulted, by permitting them to determine a connexion which is become odious to both, it may be told them, that the same permission, as a general rule, would produce libertinism, dissension, and misery, amongst thousands, who are now virtuous, and quiet, and happy, in their condition: and it ought to satisfy them to reflect, that when their happiness is sacrificed to the operation of an unrelenting rule, it is sacrificed to the happiness of the community.

The Scriptures seem to have drawn the obligation tighter than the law of nature left it. "Whosoever," saith Christ, "shall put away his wife, except it be for fornication, and shall marry another, committeth adultery; and whoso marrieth her which is put away, doth commit adultery." Matt. xix. 9. The law of Moses, for reasons of local expediency, permitted the Jewish husband to put away his wife; but whether for every cause, or for what causes, appears to have been controverted amongst the interpreters of those times. Christ, the precepts of whose religion were calculated for more general use and observation, revokes this permission (as given to the Jews "for the hardness of their hearts," and promulges a law which was thenceforward to confine divorces to the single case of adultery in the wife. And I see no sufficient reason to depart from the plain and strict meaning of Christ's words. The rule was new. It both surprised and offended his disciples; yet Christ added nothing to relax or explain it.

Inferior causes may justify the separation of husband and wife, although they will not authorize such a dissolution of the marriage-contract as would leave either party at liberty to marry again; for it is that liberty, in which the danger and mischief of divorces principally consist. If the care of children does not require that they should live together, and it is become in the serious judgment of both, necessary for their mutual happiness that they should separate, let them separate by consent. Nevertheless, this necessity can hardly exist, without guilt and misconduct on one side, or on both. Moreover, cruelty, ill usage, extreme violence or moroseness of temper, or other great and continued provocations, make it lawful for the party aggrieved to withdraw from the society of the offender without his or her consent. The law which imposes the marriage-vow, whereby the parties promise to keep "to each other," or in other words, to live together, must be understood to impose it with a silent reservation of these cases; because the same law has constituted a judicial relief from the tyranny of the husband, by the divorce à mensa et toro, and by the provision which it makes for the separate maintenance of the injured wife. St. Paul likewise distinguishes between a wife's merely separating herself from the family of her husband, and her marrying again :-"Let not the wife depart from her husband; but and if she do depart, let her remain unmarried."

The law of this country, in conformity to our Saviour's injunction, confines the dissolution of the marriage-contract to the single case of adultery in the wife; and a divorce even in that case, can only be brought about by the operation of an act of parliament, founded upon a previous sentence in the ecclesiastical court, and a verdict against the adulterer at common law: which proceedings taken together, compose as complete an investigation of the complaint as a cause can receive. It has lately been proposed to the legislature to annex a clause

to these acts, restraining the offending party from marrying with the companion of her crime, who, by the course of proceeding, is always known and convicted; for there is reason to fear, that adulterous connexions are often formed with the prospect of bringing them to this conclusion; at least, when the seducer has once captivated the affec tion of a married woman, he may avail himself of this tempting argument to subdue her scruples, and complete his victory: and the legislature, as the business is managed at present, assists by its interposition the criminal design of the offenders, and confers a privilege where it ought to inflict a punishment. The proposal deserved an experiment: but something more penal will, I apprehend, be found neces→ sary to check the progress of this alarming depravity. Whether a law might not be framed, directing the fortune of the adulteress to descend as in case of her natural death: reserving, however, a certain proportion of the produce of it, by way of annuity, for her subsistence (such annuity in no case, to exceed a fixed sum), and also so far suspending the estate in the hands of the heir as to preserve the inheritance to any children she might bear to a second marriage, in case there was none to succeed in the place of their mother by the first: whether, I say such a law would not render female virtue in higher life less vincible, as well as the seducers of that virtue less urgent in their suit, we recommend to the deliberation of those who are willing to attempt the reformation of this important, but most incorrigible, class of the community. A passion for splendour, for expensive amusements and distinctions, is commonly found, in that description of women who would become the objects of such a law, not less inordinate than their other appetites. A severity of the kind we propose, applies immediately to that passion. And there is no room for any complaint of injustice, since the provisions above stated, with others which might be contrived, confine the punishment, so far as it is possible, to the person of the offender; suffering the estate to remain to the heir, or within the family, of the ancestor from whom it came, or to attend the appointments of his will.

Sentences of the ecclesiastical courts, which release the parties a vinculo matrimonii by reason of impuberty, frigidity, consanguinity within the prohibited degrees, prior marriage, or want of the requisite consent of parents and guardians, are not dissolutions of the marriagecontract, but judicial declarations that there never was any marriage; such impediment subsisting at the time, as rendered the celebration of the marriage-rite a mere nullity. And the rite itself contains an exception of these impediments. The man and woman to be married are charged, "if they know any impediment why they may not be lawfully joined together to confess it;" and assured that so many as are coupled together, otherwise than God's word doth allow, are not joined together by God, neither is their matrimony lawful" all which is intended by way of solemn notice to the parties, that the vow they are about to make will bind their consciences and authorize their cobabitation, only upon the supposition that no legal impediment exists.

CHAPTER VIII

Marriage.

WHETHER it hath grown out of some tradition of the Divine appointment of marriage in the persons of our first parents, or merely from a design to impress the obligation of the marriage-contract with a solemnity suited to its importance, the marriage-rite, in almost all countries of the world, has been made a religious ceremony;* although marriage, in its own nature, and abstracted from the rules and declarations which the Jewish and Christian Scriptures deliver concerning it, be properly a civil contract, and nothing more.

With respect to one main article in matrimonial alliances, a total alteration has taken place in the fashion of the world; the wife now brings money to her husband: whereas anciently the husband paid. money to the family of the wife; as was the case among the Jewish patriarchs, the Greeks, and the old inhabitants of Germany. This alteration has proved of no small advantage to the female sex for their importance in point of fortune procures to them, in modern times, that assiduity and respect, which are always wanted to compensate for the inferiority of their strength; but which their personal attractions would not always secure.

Our business is with marriage as it is established in this country. And in treating thereof, it will be necessary to state the terms of the marriage-vow in order to discover:--

1. What duties this vow creates.

2. What situation of mind at the time, is inconsistent with it.

3. By what subsequent behaviour it is violated.

The husband promises on his part, "to love, comfort, honour, and keep, his wife;" the wife on hers, "to obey, serve, love, honour, and keep, her husband;" in every variety of health, fortune, and condition; and both stipulate "to forsake all others, and to keep only unto one another, so long as they both shall live. This promise is, called the marriage-vow; is witnessed before God and the congregation: accompanied with prayers to Almighty God for his blessing upon it and attended with such circumstances of devotion and solemnity as place the obligation of it, and the guilt of violating it, nearly upon the same foundation with that of oaths.

The parties by this vow engage their personal fidelity expressly and specifically; they engage likewise to consult and promote each other's happiness; the wife, moreover, promises obedience to her husband. Nature may have made and left the sexes of the human species nearly equal in their faculties, and perfectly so in their rights; but to guard against those competitions which equality, or a contested superiority

It was not, however, in Christian countries required that marriages should be celebrated in churches, till the thirteenth century of the Christian era. Marriages in England during the Usurpation, were solemnized before justices of the peace; but for what purpose this novelty was introduced, except to degrade the clergy, does not appear.

The ancient Assyrians sold their beauties by an annual auction. The prices were applied by way of portions to the more homely. By this contrivance, all of both sorts were disposed of in marriage.

is almost sure to produce, the Christian Scriptures enjoin upon the wife that obedience which she here promises, and in terms so peremptory and absolute, that it seems to extend to every thing not criminal, or not entirely inconsistent with the woman's happiness. "Let the wife," says St. Paul, "be subject to her own husband in every thing." "The ornament of a meek and quiet spirit," says the same Apostle, speaking of the duty of wives, "is, in the sight of God, of great price." No words ever expressed the true merit of the female charac ter so well as these.

The condition of numan life will not permit us to say, that no one can conscientiously marry, who does not prefer the person at the altar to all other men or women in the world; but we can have no difficulty in pronouncing (whether we respect the end of the institution, or the plain terms in which the contract is conceived), that whoever is conscious, at the time of his marriage, of such a dislike to the woman he is about to marry, or of such a subsisting attachment to some other woman, that he cannot reasonably, nor does in fact, expect ever to entertain an affection for his future wife, is guilty, when he pronounces the marriage-vow, of a direct and deliberate prevarication; and that, too, aggravated by the presence of those ideas of religion, and of the Supreme Being, which the place, the ritual, and the solemnity of the occasion, cannot fail of bringing to his thoughts. The same likewise of the woman. This charge must be imputed to all who, from mercenary motives, marry the objects of their aversion and disgust; and likewise to those who desert, from any motive whatever, the object of their affection, and, without being able to subdue that affection marry another.

The crime of falsehood is also incurred by the man who intends, at the time of his marriage, to commence, renew, or continue, a personal commerce with any other woman. And the parity of reason, if a wife be capable of so much guilt, extends to her.

The marriage-vow is violated.

1. By adultery.

II. By any behaviour which, knowingly, renders the life of the other miserable; as desertion, neglect, prodigality, drunkenness, peevishness, penuriousness, jealousy, or any levity of conduct which administers occasion of jealousy.

A late regulation in the law of marriages, in this country, has made the consent of the father, if he be living,-of the mother, if she survive the father, and remain unmarried,-or of guardians, if both parents be dead, necessary to the marriage of a person under twentyone years of age. By the Roman law, the consent et avi et patris was required so long as they lived. In France, the consent of parents is necessary to the marriage of sons, until they attain to thirty years of age; of daughters, until twenty-five. In Holland, for sons, till twentyfive; for daughters, till twenty. And this distinction between the sexes appears to be well founded: for a woman is usually as properly qualified for the domestic and interior duties of a wife or mother at eighteen, as a man is for the business of the world, and the more arduous care of providing for a family, at twenty-one.

The constitution also of the human species indicates the same distinction.*

Cùm vis prolem procreandi diutiùs hæreat in mare quàm in fæmina, populi numerus nequaquam minuetur, si seriùs venerem colere inceperint viri.