and affections, the most painful and incurable that human nature knows. In all other respects, adultery on the part of the man who solicits the chastity of a married woman, includes the crime of seduction, and is attended with the same mischief. 2. The loss which a woman sustains by the ruin of her reputation, almost exceeds computation. Every person's happiness depends in part upon the respect and reception which they meet with in the world; and it is no inconsiderable mortification, even to the firmest tempers, to be rejected from the society of their equals, or received there The infidelity of the woman is aggravated by with neglect and disdain. But this is not all, nor cruelty to her children, who are generally inthe worst. By a rule of life, which it is not easy volved in their parents' shame, and always made to blame, and which it is impossible to alter, a unhappy by their quarrel. woman loses with her chastity the chance of marrying at all, or in any manner equal to the hopes she had been accustomed to entertain. Now marriage, whatever it be to a man, is that from which every woman expects her chief happiness. And this is still more true in low life, of which condition the women are who are most exposed to solicitations of this sort. Add to this, that where a woman's maintenance depends upon her character (as it does, in a great measure, with those who are to support themselves by service,) little sometimes is left to the forsaken sufferer, but to starve for want of employment, or to have re-riage a state of such jealousy and alarm to the course to prostitution for food and raiment. 3. As a woman collects her virtue into this point, the loss of her chastity is generally the destruction of her moral principle; and this consequence is to be apprehended, whether the criminal intercourse be discovered or not. II. The injury to the family may be understood, by the application of that infallible rule, "of doing to others, what we would that others should do unto us."-Let a father or a brother say, for what consideration they would suffer this injury to a daughter or a sister; and whether any, or even a total, loss of fortune, could create equal affliction and distress. And when they reflect upon this, let them distinguish, if they can, between a robbery, committed upon their property by fraud or forgery, and the ruin of their happiness by the treachery of a seducer. III. The public at large lose the benefit of the woman's service in her proper place and destination, as a wife and parent. This, to the whole community, may be little; but it is often more than all the good which the seducer does to the community can recompense. Moreover, prostitution is supplied by seduction; and in proportion to the danger there is of the woman's betaking herself, after her first sacrifice, to a life of public lewdness, the seducer is answerable for the multiplied evils to which his crime gives birth. Upon the whole, if we pursue the effects of seduction through the complicated misery which it occasions, and if it be right to estimate crimes by the mischief they knowingly produce, it will appear something more than mere invective to assert, that not one half of the crimes, for which men suffer death by the laws of England, are so flagitious as this.* CHAPTER IV. A NEW sufferer is introduced, the injured husband, who receives a wound in his sensibility Yet the law has provided no punishment for this offence beyond a pecuniary satisfaction to the injured family; and this can only be come at, by one of the quaintest fictions in the world: by the father's bringing his action against the seducer, for the loss of his daughter's service, during her pregnancy and nurturing. If it be said that these consequences are chargeable not so much upon the crime, as the discovery, we answer, first, that the crime could not be discovered unless it were committed, and that the commission is never secure from discovery; and secondly, that if we excuse adulterous connexions, whenever they can hope to escape detection, which is the conclusion to which this argument conducts us, we leave the husband no other security for his wife's chastity, than in her want of opportunity or temptation; which would probably either deter men from marrying, or render mar husband, as must end in the slavery and confinement of the wife. The vow, by which married persons mutually engage their fidelity, "is witnessed before God," and accompanied with circumstances of solemnity and religion, which approach to the nature of an oath. The married offender therefore incurs crime little short of perjury, and the seduction of a married woman is little less than subornation of perjury;—and this guilt is independent of the discovery. All behaviour which is designed, or which knowingly tends, to captivate the affection of a married woman, is a barbarous intrusion upon the peace and virtue of a family, though it fall short of adultery. The usual and only apology for adultery is, the prior transgression of the other party. There are degrees, no doubt, in this, as in other crimes: and so far as the bad effects of adultery are anticipated by the conduct of the husband or wife who offends first, the guilt of the second offender is less. But this falls very far short of a justification; unless it could be shown that the obligation of the marriage-vow depends upon the condition of reciprocal fidelity; for which construction there appears no foundation, either in expediency, or in the terms of the promise, or in the design of the legislature which prescribed the marriage-rite. Morcover, the rule contended for by this plea, has a manifest tendency to multiply the offence, but none to reclaim the offender. The way of considering the offence of one party as a provocation to the other, and the other as only retaliating the injury by repeating the crime, is a childish trifling with words. "Thou shalt not commit adultery," was an interdict delivered by God himself. By the Jewish law, adultery was capital to both parties in the crime: "Even he that committeth adultery with his neighbour's wife, the adulterer and adulWhich passages prove, that the Divine Legisteress shall surely be put to death."-Levit. xx. 10. lator placed a great difference between adultery and fornication. And with this agree the Christian Scriptures: for, in almost all the catalogues they have left us of crimes and criminals, they enumerate "fornication, adultery, whoremongers, adulterers." (Matthew xv. 19. 1 Cor. vi. 9. Gal. v. 9. Heb. viii. 4.) by which mention of both, they show that they did not consider them as the same: but that the crime of adultery was, in their apprehension, distinct from, and accumulated upon that of fornication. The history of the woman taken in adultery, recorded in the eighth chapter of St. John's Gospel, has been thought by some to give countenance to that crime. As Christ told the woman, "Neither do I condemn thee," we must believe, it is said, that he deemed her conduct either not criminal, or not a crime, however, of the heinous nature which we represent it to be. A more attentive examination of the case will, I think, convince us, that from it nothing can be concluded as to Christ's opinion concerning adultery, either one way or the other. The transaction is thus related: "Early in the morning Jesus came again into the temple, and all the people came unto him: and he sat down and taught them. And the Scribes and Pharisees brought unto him a woman taken in adultery: when they had set her in the midst, they say unto him, Master, this woman was taken in adultery, in the very act: now Moses in the law commanded that such should be stoned; but what sayest thou? This they said tempting him, that they might have to accuse him. But Jesus stooped down, and with his finger wrote on the ground, as though he heard them not. So when they continued asking him, he lift up himself, and said unto them, He that is without sin amongst you, let him first cast a stone at her; and again he stooped down and wrote on the ground: and they which heard it, being convicted by their own conscience, went out one by one, beginning at the eldest even unto the last; and Jesus was left alone, and the woman standing in the midst. When Jesus had lift up himself, and saw none but the woman, he said unto her, Woman, where are those thine accusers? hath no man condemned thee? She said unto him, No man, Lord. And he said unto her, Neither do I condemn thee; go, and sin no more. demned thee?" he certainly spoke, and was understood by the woman to speak, of a legal and judicial condemnation; otherwise, her answer, "No man, Lord," was not true. In every other sense of condemnation, as blame, censure, reproof, private judgment, and the like, many had condemned her; all those indeed who had brought her to Jesus. If then a judicial sentence was what Christ meant by condemning in the question, the common use of language requires us to suppose that he meant the same in his reply, "Neither do I condemn thee," i. e. I pretend to no judicial character or authority over thee; it is no office or business of mine to pronounce or execute the sentence of the law. When Christ adds, "Go, and sin no more," he in effect tells her, that she had sinned already : but as to the degree or quality of the sin, or Christ's opinion concerning it, nothing is declared, or can be inferred, either way. Adultery, which was punished with death during the Usurpation, is now regarded by the law of England only as a civil injury; for which the imperfect satisfaction that money can afford, may be recovered by the husband. CHAPTER V. In order to preserve chastity in families, and between persons of different sexes, brought up and living together in a state of unreserved intimacy, it is necessary, by every method possible, to inculcate an abhorrence of incestuous conjunc tions; which abhorrence can only be upholden by the absolute reprobation of all commerce of the sexes between near relations. Upon this principle, the marriage as well as other cohabitations of brothers and sisters, of lineal kindred, and of all who usually live in the same family, may be said to be forbidden by the law of nature. "This they said tempting him, that they might have to accuse him;" to draw him, that is, into an exercise of judicial authority, that they might have to accuse him before the Roman governor, of usurp ing or intermeddling with the civil government. This was their design; and Christ's behaviour throughout the whole affair proceeded from a knowledge of this design, and a determination to defeat it. He gives them at first a cold and sullen reception, well suited to the insidious intention with which they came: "He stooped down, and with his finger wrote on the ground, as though he heard them not." "When they continued asking him," when they teased him to speak, he dismissed them with a rebuke, which the impertinent malice of their errand, as well as the sacred character of many of them, deserved: "He that is without sin (that is, this sin) among you, let him first cast a stone at her." This had its effect. Stung with the reproof, and disappointed of their aim, they stole away one by one, and left Jesus and the woman alone. And then follows the conversation, which is the part of the narrative most material to our present subject. "Jesus said unto her. Woman, where are those thine accusers? hath no man condemned thee? She said, No man, Lord. And Jesus said unto her, Neither do I The Roman law continued the prohibition to the condemn thee; go, and sin no more." Now, when the Levitical and English law, there is nothing to hindescendants of brothers and sisters without limits. In Christ asked the woman, "Hath no man con-der a man from marrying his great-niece. Restrictions which extend to remoter degrees of kindred than what this reason makes it necessary to prohibit from intermarriage, are founded in the authority of the positive law which ordains them, and can only be justified by their tendency to diffuse wealth, to connect families, or to promote some political advantage. The Levitical law, which is received in this country, and from which the rule of the Roman law differs very little, prohibits* marriage between relations, within three degrees of kindred; computing the generations, not from, but through the common ancestor, and accounting affinity the same as consanguinity. The issue, however, of such marriages, are not bastardised, unless the parents be divorced during their life-time. The Egyptians are said to have allowed of the marriage of brothers and sisters. Amongst the Athenians, a very singular regulation prevailed; brothers and sisters of the half-blood, if related by the father's side, might marry; if by the mother's side, they were prohibited from marrying. The same custom also probably obtained in Chaldea so early as the age in which Abraham left it; for he and Sarah his wife stood in this relation to each other: "And yet, indeed, she is my sister; she is the daughter of my father, but not of my mother; and she became my wife." Gen. xx. 12. CHAPTER VI. Polygamy. THE equality in the number of males and females born into the world, intimates the intention of God, that one woman should be assigned to one man: for if to one man be allowed an exclusive right to five or more women, four or more men must be deprived of the exclusive possession of any which could never be the order intended. It seems also a significant indication of the divine will, that he at first created only one woman to one man. Had God intended polygamy for the species, it is probable he would have begun with it; especially as, by giving to Adam more wives than one, the multiplication of the human race would have proceeded with a quicker progress. 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 Polygamy not only violates the constitution of forbidden amongst the Greeks and Romans, we nature, and the apparent design of the Deity, but cannot expect to find any express law upon the produces to the parties themselves, and to the pub-subject in the christian code. The words of fic, the following bad effects; contests and jealou-Christ + (Matt. xix. 9.) may be construed, by an sies amongst the wives of the same husband; dis-easy implication, to prohibit polygamy: for, if tracted affections, or the loss of all affection, in the husband himself: a voluptuousness in the rich, which dissolves the vigour of their intellectual as well as active faculties, producing that indolence and imbecility both of mind and body, which have long characterised the nations of the East; the abasement of one half of the human species, who, in countries where polygamy obtains, are degraded into mere instruments of physical pleasure to the other half; neglect of children; and the manifold, and sometimes unnatural mischiefs, which arise from a scarcity of women. To compensate for these evils, polygamy does not offer a single advantage. In the article of population, which it has been thought to promote, the community gain nothing for the question is not, whether 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 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 wife (for, however unjust or cruel that may be, 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 This equality is not exact. The number of male marriage of one husband with one wife :-"It is infants exceeds that of females in the proportion of good for a man not to touch a woman; neverthenineteen to eighteen, or thereabouts: which excess pro-less, to avoid fornication, let every man have his vides for the greater consumption of males by war, seafaring, and other dangerous or unhealthy occupations. own wife, and let every woman have her own Nothing, I mean, compared with a state in which husband." marriage is nearly universal. Where marriages are less general, and many women unfruitful from the want of husbands, polygamy might at first add a little to popula-in tion, and but a little; for, as a variety of wives would be sought chiefly from temptations of voluptuousness, it would rather increase the demand for female beauty, than for the sex at large. And this little would soon be made less by many deductions. For, first, as none but 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 vir: tue, 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 under 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. The manners of different countries have varied 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. *See Deut. xvii. 17; xxi. 15. I say unto you, Whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery. In Sweden, it is punished with death. In Eng-| 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 marime fratres cum fratribus, parentesque cum liberis; sed si qui sint ex his nati, eorum habentur liberi, quo primum virgo quæque deducta est. CHAPTER VII. By divorce, I mean a 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 Per sians. 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 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 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 L possessed before the contract was entered into; 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 a 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 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 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 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. 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 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 Inferior causes may justify the separation of appears to be whether the real and permanent husband and wife, although they will not auhappiness of one half of the species should be sur-thorise such a dissolution of the marriage conrendered to the caprice and voluptuousness of the other? tract as would leave either party at liberty to marry again: for it is that liberty, in which the We have considered divorces as depending danger and mischief of divorces principally conupon the will of the husband, because that is the sist. If the care of children does not require that way in which they have actually obtained in they should live together, and it is become, in the many parts of the world: but the same objections serious judgment of both, necessary for their muapply, in a great degree, to divorces by mutual tual happiness that they should separate, let them consent; especially when we consider the indeli-separate by consent. Nevertheless, this necessity cate situation and small prospect of happiness, can hardly exist, without guilt and misconduct on which remains to the party who opposed his or one side or both. Moreover, cruelty, ill-usage, exher dissent to the liberty and desire of the other. treme violence, or moroseness of temper, or other The law of nature admits of an exception in great and continued provocations, make it lawful favour of the injured party, in cases of adultery, for the party aggrieved to withdraw from the soof obstinate desertion, of attempts upon life, of ciety of the oender without his or her consent. outrageous cruelty, of incurable madness, and The law which imposes the marriage-vow, whereperhaps of personal imbecility; but by no means by the parties promise to "keep to each other," or indulges the same privilege to mere dislike, to op-in other words, to live together, must be underposition of humours and inclination, to contrariety stood to impose it with a silent reservation of these of taste and temper, to complaints of coldness, cases; because the same law has constituted a juneglect, severity, peevishness, jealousy: not that dicial relief from the tyranny of the husband, by these reasons are trivial, but because such objec- the divorce a mensa et toro, and by the provision tions may always be alleged, and are impossible which it makes for the separate maintenance of by testimony to be ascertained; so that to allow the injured wife. St. Paul likewise distinguishes implicit credit to them, and to dissolve marriages between a wife's merely separating herself from whenever either party thought fit to pretend the family of her husband, and her marrying them, would lead in its effect to all the licentious-again:-"Let not the wife depart from her husness of arbitrary divorces. band: but and if she do depart, let her remain unmarried." Milton's story is well known. Upon a quarrel with his wife, he paid his addresses to another The law of this country, in conformity to our woman, and set forth a public vindication of his Saviour's injunction, contines the dissolution of conduct, by attempting to prove, that confirmed the marriage-contract to the single case of aduldislike was as just a foundation for dissolving the tery in the wife; and a divorce, even in that case, marriage-contract, as adultery: to which position, can only be brought about by the operation of an and to all the arguments by which it can be sup- act of parliament, founded upon a previous senported, the above consideration affords a sufficient tence in the ecclesiastical court, and a verdict answer. And if a married pair, in actual and ir- against the adulterer at common law: which proreconcileable discord, complain that their happi-ceedings taken together, compose as complete an ness 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 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 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, I apprehend, be found necessary to check the progress of this alarming depravity. |