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woman to receive five husbands : according as war had made, in one quarter of their country, an extraordinary havock among the men, or the women liad 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 inales and females, was founded in the reason upon which the most improved nations of Europe proceed at present.
Cæsar 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 quæque deducta est,
Of Divorce. By divorce, I mean the dissolution of the mar. riage 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 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 inconsist ent 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 ncompatible with the right which the mother pos. sesses, as well as the father, to the gratitude of her shildren and the comfort of their society : of both vhich she is almost necessarily deprived, by her lismission from her husband'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 ex. luded 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 dissolu. tion of the partnership, and endeavour to draw to
le 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 the married life. The second ef
fect, 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 practise 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 be deposited in the hands of the husband, with less danyer 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 sur, render ed 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, se. verity, peevishness, jealousy: not that these rea. sons 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 di
Milton's story is well known. Upon a quarrel with his wife, he paid his addresses to another wo man, and set forth a public vindication of his conduct, by attempting to prove, that confirmed dis like was as just a foundation for dissolving the mar. riage-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 irreconcilable
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. soever," saith Christ,“ shall put away his wife, except it be for fornication, and shall marry ano ther, committeth adultery; and whoso marrieth her which is put away, doth commit adultery." Matt. xix. 9. The law of Moses, for reasons of lo. cal 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
It both surprised and offended his disciples ; yet Christ added nothing to relax or ex. plain 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 miscondust on one side or on