there is no other fecurity against the invitations of novelty, than the known impofibility of obtaining the object. Did the caufe, which brings the fexes together, hold them together by the fame force with which it first attracted them to each other, or could the woman be reftored to her perfonal integrity, and to all the advantages of her virgin eftate; the power of divorce might be depofited in the hands of the hufband, with lefs danger of abufe or inconveniency But conftituted as mankind are, and injured as the repudiated wife generally muft be, it is neceffary to add a stability to the condition of married women, more fecure than the continuance of their husbands' affection; and to fupply to both fides, by à sense of duty and of obligation, what fatiety has impaired of paffion and perfonal attachment. Upon the whole, the power of divorce is evidently and greatly to the disadvantage of the woman; and the only queftion appears to be, whether the real and permanent happinefs of one half of the fpecies fhould be furrendered to the caprice and voluptuoufnefs of the other?

We have confidered divorces as depending upon the will of the hufband, becaufe that is the way in which they have actually obtained in many parts of the world: but the fame objections apply, in a great degree, to divorces by mutual confent; efpecially when we confider the indelicate fituation and finall profpect of happiness, which remains to the party, who oppofed his or her diffent to the liberty and defires of the other.

The law of nature admits of an exception in favour of the injured party, in cafes of adultery, of obftinate desertion, of attempts upon life, of outrageous cruelty, of incurable madness, and, perhaps, of perfonal imbecility; but by no means indulges the fame privilege to mere diflike, to oppofition of humours and inclinations, to contrariety of tafte and temper, to complaints of coldnefs, neglect, feverity, peevishnefs, jealoufy not that these reasons are trivial,

but because fuch objections may always be alleged, and are impoffible by teftimony to be afcertained; fo that to allow implicit credit to them, and to dif folve marriages whenever either party thought fit to pretend them, would lead in its effect to all the licentioufnefs of arbitrary divorces.

Milton's story is well known. Upon a quarrel with his wife, he paid his addreffes to another woman, and fet forth a public vindication of his conduct, by attempting to prove, that confirmed diflike was as juft a foundation for diffolving the marriage contract, as adultery; to which pofition, and to all the arguments by which it can be fupported, the above confideration affords a fufficient answer. And if a married pair, in actual and irreconcileable difcord, complain that their happiness would be better confulted, by permitting them to determine a connection, which is become odious to both, it may be told them, that the fante permiffion, as a general rule, would produce libertinifm, diffenfion, and mifery, amongft thoufands, who are now virtuous, and quiet, and happy, in their condition and it ought to fatisfy them to reflect, that when their happiness is facrificed to the operation of an unrelenting rule, it is facrificed to the happiness of the community.

The fcriptures feem to have drawn the obligation tighter than the law of nature left it." Whofoever," faith Chrift, "fhall put away his wife, except it be

for fornication, and fhall marry another, com"mitteth adultery; and whofo marrieth her which is put away, doth commit adultery." Matt. xix.

9:

The law of Mofes, for reafons of local expedi ency, permitted the Jewish hufband to put away his wife; but whether for every caufe, or for what caufes, appears to have been controverted amongst the interpreters of thofe times, Chrift, the precepts of whofe religion were calculated for more general ufe and obfervation, revokes this permiffion, as given 10 the Jews "for the hardness of their hearts," and

pro

promulges a law which was thenceforward to confine divorces to the fingle caufe of adultery in the wife. And I fee no fufficient reafon to depart from the plain and ftrict meaning of Chrift's words. The rule was new. It both furprised and offended his difciples; yet Chrift added nothing to relax or explain it.

Inferior caufes may justify the feparation of huf band and wife, although they will not authorize fuch a diffolution of the marriage contract, as would leave either party at liberty to marry again: for it is that liberty in which the danger and mifchief of divorces principally confift. If the care of children does not require that they should live together, and it is become in the ferious judgment of both, neceffary for their natural happiness that they fhould feparate, let them separate by confent. Nevertheless this neceffity can hardly exift, without guilt and mifconduct on one fide or on both. Moreover, cruelty, lufage, extreme violence, or morofenefs of temper, or other great and continued provocations, make it lawful for the party aggrieved to withdraw from the fociety of the offender, without his or her cenfent. The law which impofes the marriage vow, whereby the parties promife to keep each other," or in other words, to live together, must be understood to inpose it with a filent refervation of thefe cafes; because the fame law has conftituted a judicial relief from the tyranny of the hufband, by the divorce a menfâ et thoro, and by the provifion which it makes for the feparate maintenance of the injured wife. St. Paul likewife diftinguishes between a wife's merely feparating herself from the family of her huf band, and her marrying again. "Let not the wife depart from her husband, but, and if fhe do de"part, let her remain unmarried."

The law of this country, in conformity to our Saviour's injunction, confines the diffolution of the marriage contract, to the fingle cafe of adultery in the wife; and a divorce even in that cafe can only

be

be brought about by the operation of an act of parliament, founded upon a previous fentence in the ecclefiaftical court, and a verdict against the adulterer at common law: which proceedings taken together compofe as complete an investigation of the complaint as a caufe can receive. It has lately been propofed to the legislature to annex a claufe to these acts, reftraining the offending party from marrying with the companion of her crime, who, by the courfe of proceeding, is always known and convicted; for there is reafon to fear, that adulterous connections are often formed with the profpect of bringing them to this conclufion; at leaft, when the feducer has once captivated the affection of a married woman, he may avail himfelf of this tempting argument to fubdue her fcruples, and complete his victory; and the legiflature, as the bufinefs is managed at prefent, affifts by its interpofition the criminal defign of the offenders, and confers a privilege where it ought to inflict a punishment. The propofal deferved an experiment; but fomething more penal, will, I apprehend, be found neceffary, to check the progress of this alarming depravity. Whether a law might not be framed directing the fortune of the adulteress to defcend as in cafe of her natural death, referving, however, a certain proportion of the produce of it, by way of annuity, for her fubfiftence (fuch annuity in no cafe to exceed a fixed fum), and alfo fo far fufpending the estate in the hands of the heir, as to preferve the inheritance to any children fhe might bear to a fecond marriage, in cafe there was none to fucceed in the place of their mother by the first; whether, I fay, fuch a law would not render female virtue in higher life less vincible, as well as the feducers of that virtue lefs urgent in their fuit, we recommend to the deliberation of thofe, who are willing to attempt the reformation of this important, but moft incorrigible clafs of the community. A paffion for fplendour, for expenfive amufements and

diftinctions, is commonly found in that defcription of women who would become the objects of fuch a law, not lefs inordinate than their other appetites. A feverity of the kind we propofe applies immediately to that paffion. And there is no room for any complaint of injustice, fince the provifions above stated, with others which might be contrived, confine the punishment fo far as it is poffible, to the perfon of the offender; fuffering the eftate 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 ecclefiaftical courts, which release the parties a vinculo matrimonii by reafon of impuberty, frigidity, confanguinity within the prohibited degrees, prior marriage, or want of the requifite confent of parents or guardians, are not diffolutions of the marriage contract, but judicial declarations, that there never was any marriage; fuch impediment fubfifting at the time, as rendered the celebration of the marriage rite a mere nullity. And the rite itself contains an exception of thefe impediments. The man and woman to be married are charged, "if they "know any impediment why they may not be law"fully joined together, to confefs it;" and affured "that fo many as are coupled together, otherwise "than God's word doth allow, are not joined toge"ther by God, neither is their matrimony lawful;" all which is intended by way of folemn notice to the parties, that the vow they are about to make will bind their confciences and authorize their cohabitation, only upon the fuppofition that no legal impediment exist.

CHAP.