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one man will have more children by five or more wives than by one; but whether these five wives would not bear the same or a greater number of children to five separate husbands. And as to the care of the children when produced, and the sending of them into the world in situations in which they may be likely to form and bring up families of their own, upon which the increase and succession of the human species in a great degree depend; this is less provided for, and less practicable, where twenty or thirty children are to be supported by the attention and fortunes of one father, than if they were divided into five or six families, to each of which were assigned the industry and inheritance of two parents.
Whether simultaneous polygamy was permitted by the law of Moses, seems doubtful :* but whether permitted or not, it was certainly practised by the Jewish patriarchs, both before that law, and under it. The permission, if there were any, might be like that of divorce, " for the hardness of their heart," in condescension to their established indulgences, 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 respect before the time of Christ, for in the New Testament we meet with no trace or mention of any such practice being tolerated.
For which reason, and because it was likewise forbidden amongst the Greeks and Romans, we cannot expect to find any express law upon the subject in the Christian code. The words of Christ t (Matt. xix. 9.) may be construed by an easy implication to prohibit polygamy: for, if " whoever putteth away his wife, and marrieth another, committeth adultery," he who marrieth another without putting away the first, is no less guilty of adultery: because the adultery does not consist in the repudiation of the first
the opulent can maintain a plurality of wives, where polygamy obtains, the rich indulge in it, while the rest take up with a vague and barren incontinency. And, .secondly, women would grow less jealous of their virtue, when they had nothing for which to reserve it, but a chamber in the haram; when their chastity was no longer to be rewarded with the rights and happiness of a wife, as enjoyed undo the marriage of one woman to one man. These considerations may be added to what is mentioned in the text, concerning the easy and early settlement of children in the world.
* See Deut. xvii. 17. xxi. 15.
t" I say unto you, Whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery."
wife (for, however unjust or cruel that maybe, it is not adultery), but in entering into a second marriage during the legal existence and obligation of the first. The several passages in St. Paul's writings, which speak of marriage, always suppose it to signify the union of one man with one woman. Upon this supposition he argues, Rom. vii. 1, 2, 3: "Know ye not, brethren (for I speak 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 so long as he liveth; but if the husband be dead, she is loosed from the law of her husband: so then, if while her husband liveth she be married to another man, she shall be called an adulteress." When the same apostle permits marriage to his Corinthian converts (which, "for the present distress," he judges to be inconvenient), he restrains the permission to the marriage of one husband with one wife: —" It is good for a man not to touch a woman: nevertheless, to avoid fornication, let every man have his own wife, and let every woman have her own husband."
The manners of different countries have varied in nothing more than in their domestic constitutions. Less polished and more luxurious nations have either not perceived the bad effects of polygamy, or, if they did perceive them, they who in such countries possessed the power of reforming the laws have been unwilling to resign their own gratifications. .Polygamy is retained at this day among the Turks, and throughout every part of Asia in which Christianity is not professed. In Christian countries, it is universally prohibited. In Sweden, it is punished with death. In England, besides the nullity of the second marriage, it subjects the offender to transportation, or imprisonment and branding, for the first offence, and to capital punishment for the second. And whatever may be said in behalf of polygamy when it is authorized by the law of the land, the marriage of a second wife during the lifetime of the first, in countries where such a second 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 person, and her happiness.
The ancient Medes compelled their citizens, in one canton, to take seven wives; in another, each woman to receive five husbands: according as war had made, in one quarter of their country, an extraordinary havoc among the men, or the women had been carried away by an enemy from another. This regulation, so far as it was adapted to the proportion which subsisted between the number of males and females, was founded in the reason upon which the most improved nations of Europe proceed at present.
Caesar found amongst the inhabitants of this island a species of polygamy, if it may be so called, which was perfectly singular. Uxores, says he, habent deni duodenique inter se communes; et maxime fratres cum fratribus ,parentesque cum liberis: sed si qui sint ex his nati, eorum habentur liberi, quo primum virgo quaequc deducta est.
By divorce, I mean the dissolution of the marriage-contract, by the act, and at the will, of the husband.
This power was allowed to the husband, among the Jews, the Greeks, and latter Romans; and is at this day exercised by the Turks and Persians.
The congruity of such a right with the law of nature, is the question before us.
And, in the first place, it is manifestly inconsistent with the duty which the parents owe to their children; which duty can never be so well fulfilled as by their cohabitation and united care. It is also incompatible with the right which the mother possesses, as well as the father, to the gratitude of her children and the comfort of their society ; of both which she is almost necessarily deprived, by her dismission ftom her h usband's family.
Where this objection does not interfere, I know of no principle of the law of nature applicable to the question, beside that of general expediency.
For, if we say, that arbitrary divorces are excluded by the terms of the marriage-contract, it may be answered, that the contract might be so framed as to admit of this condition.
If we argue, with some moralists, that the obligation of a contract naturally continues, so long as the purpose, which the contracting parties had in view, requires its continuance; it will be difficult to show what purpose of the contract (the care of children excepted) should confine a man to a woman, from whom he seeks to be loose.
If we contend, with others, that a contract cannot, by the law of nature, be dissolved,
unless the parties be replaced in the situation which each possessed before the contract was entered into; we shall be called upon to prove this to be a universal or indispensable property of contracts.
I confess myself unable to assign any circumstance in the marriage-contract, which essentially distinguishes it from other contracts, or which proves that it contains, what many have ascribed to it, a natural incapacity of being dissolved by the consent of the parties, at the option of one of them, or either of them. But if we trace the effects of such a rule upon the general happiness of married life, we shall perceive reasons of expediency, that abundantly justify the policy of those laws which refuse 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 species.
A lawgiver, whose counsels are directed by views of general utility, and obstructed by no local impediment, would make the marriage-contract indissoluble during the joint lives of the parties, for the sake of the following advantages:—
I. Because this tends to preserve peace and concord between married persons, by perpetuating their common interest, and by inducing a necessity of mutual compliance.
There is great weight and substance in both these considerations. An earlier termination of the union would produce a separate interest. The wife would naturally look forward to the dissolution of the partnership, and endeavour to draw to herself a fund against the time when she was no longer to have access to the same resources. This would beget peculation on one side, and mistrust on the other ; evils which at present very little disturb the confidence of married life. The second effect of making the union determinable only by death, is not less beneficial. It necessarily happens that adverse tempers, habits, and tastes, oftentimes meet in marriage. In which case, each party must take pains to give up what offends, and practice what may gratify the other. A man and woman in love with each other, do this insensibly; but love is neither general nor durable: and where that is wanting, no lessons of duty, no delicacy of sentiment, will go half so far with the generality of mankind and womankind, as this one intelligible reflection, that they must each make the best of their bargain; 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 after, 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 he deposited in the hands of the 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 add a 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; hut by no means indulges the same privilege
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 impos sible 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 disbke 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 connection 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," saitb 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 tne separation of husband and wife, although they will not authorize such a dissolution of the marriagecoutract as would leave eitherparty 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, aud 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 ihe husband, by the divorce A mcnsa 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 connections are often formed with the prospect of bringing them to this conclusion; at feast, when the seducer has once cnptivated the affection 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, 1 apprehend, be found necessary 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 marriage-contract, 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 cohabitation, only upon the supposition that no legal impediment exists.
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 A 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.
* 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, docs 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.
3. By what subsequent behaviour it is
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, 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 character so well as these.
The condition of human 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