under it. The permiffion, if there was any, might be like that of divorce, "for the hardnefs of their heart," in condefcenfion to their eftablished indulgencies, rather than from the general rectitude or propriety of the thing itself. The state of manners in Judea had probably undergone a reformation in this refpect before the time of Chrift, for in the New Teftament we meet with no trace or mention of any fuch practice being tolerated.

we

For which reason, and because it was likewife forbidden amongst the Greeks and Romans, cannot expect to find any exprefs law upon the fubject in the Chriftian code. The words of Christ,* Matt. xix. 9, may be conftrued by an easy implication to prohibit polygamy; for, if "whoever put"teth away his wife, and marrieth another, com"mitteth adultery," he who marrieth another without putting away the firft, is no lefs guilty of adultery; becaufe the adultery does not confift in the repudiation of the firft wife (for however unjuft or cruel that may be, it is not adultery), but in entering into a fecond marriage, during the legal existence and obligation of the first. The several paffages in St. Paul's writings, which speak of marriage, always fuppofe it to fignify the union of one man with one woman. Upon this fuppofition he argues, Rom. vii. 2, 3. "Know ye not, brethren, "for Ifpeak to them that know the law, how that "the law hath dominion over a man, as long as he "liveth; for the woman which hath an husband, is "bound by the law to her husband fo long as he "liveth; but if the husband be dead, fhe is loofed "from the law of her husband; fo then, if while "her husband liveth fhe be married to another "man, fhe fhall be called an adulterefs." When the fame Apofile permits marriage to his Corinthian converts (which, "for the prefent diftrefs," he

**Ify unto you, whofoever fhall, put away his wife, except it be for fornication, and fhall marry another, committeth adultery."

judges

judges to be inconvenient), he restrains the permiffion to the marriage of one hufband with one wife: "It is good for a man not to touch a woman, never

thelefs, to avoid fornication, let every man have "his own wife, and let every woman have her own "hufband."

The manners of different countries have varied in nothing more than in their domeftic conftitutions. Lefs polifhed and more luxurious nations have either not perceived the bad effects of polygamy, or, if they did perceive them, they who in fuch countries poffeffed the power of reforming the laws, have been unwilling to refign their own gratifications. Polygamy is retained at this day among the Turks, and throughout every part of Afia, in which Chriftianity is not profeffed. In Christian countries it is univerfally prohibited. In Sweden it is punished with death. In England, befide the nullity of the fecond marriage, it fubjects the offender to imprifonment and branding for the first offence, and to capital punishment for the fecond. And whatever may be faid in behalf of polygamy, when it is authorifed by the law of the land, the marriage of a fecond wife, during the life-time of the firft, in countries where fuch a fecond marriage is void, must be ranked with the most dangerous and cruel of those frauds, by which a woman is cheated out of her fortune, her perfon, and her happiness.

The ancient Medes compelled their citizens, in one canton, to take feven wives; in another, each woman to receive five hufbands: according as war had made, in oue quarter of their country, an extraordinary havock among the men, or the women had been carried away by an enemy from another. This regulation, fo far as it was adapted to the portion which fubfifted betwen the numbers of promales and females, was founded in the reafon upon which the most improved nations of Europe proceed at prefent.

Cafar found amongst the inhabitants of this island a fpecies of polygamy, if it may be fo called, which

was perfectly fingular. Uxores, fays he, habent deni duodenique inter fe communes, et maxime fratres cum fratribus, parentefque cum liberis: fed fi qui funt ex his nati, eorum habentur liberi, quo primum virga qua que dedu&a eft.

CHAP. VII

OF DIVORCE.

B

Y Divorce, I mean the diffolution of the mar riage contract, by the act, and at the will, of the hufband.

This power was allowed to the husband, among the Jews, the Greeks, and later Romans; and is at this day exercifed by the Turks and Perfians.

The congruity of fuch a right with the law of nature, is the queftion before us.

And in the firft place, it is manifeftly inconfiftent with the duty which the parents owe to their children; which duty can never be fo well fulfilled as by the cohabitation and united care. It is alfo incompatible with the right which the mother poffeffes, as well as the. father, to the gratitude of her children and the comfort of their fociety; of both which fhe is almost neceffarily deprived, by her difmiffen from her husband's family.

Where this objection does not interfere, I know of no principle of the law of nature applicable to the queftion, befide that of general expedi

ency.

For

For, if we fay, that arbitrary divorces are excluded, by the terms of the marriage contract, it may be an fwered, that the contract might be fo framed as to admit of this condition.

If we argue with fome moralifts, that the obliga tion of a contract naturally continues, fo long as the purpose, which the contracting parties had in view, requires its continuance, it will be difficult to fhow what purpose of the contract (the care of children excepted) fhould confine a man to a wonian, from whom he feeks to be loofe.

If we contend with others, that a contract cannot, by the law of nature, be diffolved, unless the parties be replaced in the fituation, which each posfeffed before the contract was entered into; we fhall be called upon to prove this to be an univerfal or indifpenfable property of contracts.

I confefs myself unable to affign any circumftance in the marriage contract, which effentially diftinguishes it from other contracts, or which proves that it contains, what many have afcribed to it, a natural incapacity of being diffolved by the confent of the parties, at the option of one of them, or either of them. But if we trace the effects of fuch a rule upon the general happiness of married life, we fhall perceive reafons of expediency, that abundantly juftify the policy of thofe laws, which refufe to the husband the power of divorce, or restrain it to a few extreme and specific provocations and our principles teach us to pronounce that to be contrary to the law of nature, which can be proved to be detrimental to the common happiness of the human fpecies.

A lawgiver, whofe councils were directed by views of general utility, and obftructed by no local impediment, would make the marriage contract.jndiffoluble during the joint lives of the parties for the fake of the following advantages:

I. Because this tends to preferye peace and concord between married perfons, by perpetuating their

common intereft, and by inducing a neceffity of mutual compliance.

There is great weight and fubftance in both thefe confiderations. An earlier termination of the union would produce a feparate intereft. The wife would naturally look forward to the diffolution of the partnership, and endeavour to draw to heifelf a fund, against the time when the was no longer to have accefs to the fame resources. This would beget peculation on one fide, and miftruft on the other; evils which at prefent very little difturb the confidence of married life. The fecond effect of making the union determinable only by death is not lefs beneficial. It neceffarily happens, that adverfe tempers, habits, and taftes, oftentimes meet in marriage. In which case, each party mufs take pains to give up what offends, and practife what may gratify the other. A man and woman in love with each other, do this infenfibly but love is neither general nor durable; and where that is wanting, no leffons of duty, no delicacy of fentiment, will go half fo far with the generality of mankind and womankind, as this one intelligible reflection, that they muft each make the beft of their bargain; and that feeing they muft either both be miferable, or both fhare in the fame happinefs, neither can find their own comfort but in promoting the pleasure of the other. These compliances, though at firft extorted by neceffity, become in time eafy and mutual; and though lefs endearing than affiduities which take their rife from affection, generally procure to the married pair a repofe and fatisfaction fufficient for their hap-. pinefs.

II. Because new objects of defire would be continually fought after, if men could, at will, be releafed from their fubfifting engagements. Suppose the hufband to have once preferred his wife to all other women, the duration of this preferènce cannot be rufted to. Poffeffion makes a great difference: and

there