CHAP. VII.

OF DIVORCE.

Y Divorce, I mean, the diffolution 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 later Romans; and is at this day exercised by the Turks and Perfians.

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

And in the first place, it is manifeftly inconfistent 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 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 she is almost neceffarily deprived, by her difmiffion from her husband's family.

Where

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 fo framed as to admit of this condition.

If we argue with fome moralifts, that the obligation 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) should confine a man to a woman, 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 poffeffed before the contract was entered into; we shall be called upon to prove this to be an univerfal or indispensable property of contracts.

I confefs myself unable to affign any circumftance in the marriage contract, which effentially distinguishes it from other contracts, or which proves that it contains, what many have ascribed to it, a natural incapacity of being diffolved by Y 4

the

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 happinefs of married life, we fhall perceive reasons of expediency, that abundantly justify the policy of thofe laws, which refuse to the husband the power of divorce, or reftrain 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, whose counfels were directed by views of general utility, and obftructed by no local impediment, would make the marriage contract indiffoluble during the joint lives of the parties, for the fake of the following advantages:

I. Because this tends to preferve peace and concord between married perfons, by perpetuating their common intereft, and by inducing a neceflity of mutual compliance.

There is great weight and fubftance in both thefe confiderations. An earlier termination of the union would produce a feparate interest. The wife would naturally look forward to the diffolution of the partnership, and endeavour to draw

draw to herself a fund, against the time when fhe was no longer to have access to the fame refources. This would beget peculation on one fide, and miftruft on the other; evils which at prefent very little disturb the confidence of married life. The second effect of making the union determinable only by death, is not less beneficial. It neceffarily happens, that adverse tempers, habits, and taftes, oftentimes meet in marriage. In which cafe, 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 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 must each make the best of their bargain; and that seeing they must either both be miserable, or both share in the fame happiness, 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 easy and mutual; and though lefs endearing than affiduities which take their rife from affection, gene

rally

rally procure to the married pair a repofe and fatisfaction fufficient for their happiness.

II. Because new objects of defire would be continually fought after, if men could, at will, be released from their fubfifting engagements. Suppose the husband to have once preferred his wife to all other women, the duration of this preference cannot be trufted to. Poffeffion makes a great difference: and there is no other fe curity against the invitations of novelty, than the known impoffibility of obtaining the object. Did the caufe, which brings the fexes together, hold them together by the fame force with which it firft attracted them to each other, or could the woman be reftored to her personal integrity, and to all the advantages of her virgin eftate; the power of divorce might be depofited in the hands of the husband, with lefs danger of abufe or inconveniency. But confti

tuted as mankind are, and injured as the repudiated wife generally muft be, it is neceffary to add a ftability to the condition of married women, more fecure than the continuance of their hufbands' affection; and to fupply to both fides, by a fenfe of duty and of obligation, what fatiety has impaired of paffion and of personal attachinent. Upon the whole, the power of divorce

is