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mitted 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* (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 wife (for, however unjust or cruel that may be, it is not adultery), but in entering into a second marriage during the legal existance 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 a 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 pre
*“ I say unto you, Whosoever shall put away his wise, except it be for fornication, and shall marry another, committeth adultery.'
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sent 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 havock 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.
Cæsar found amongst the inhabitants of this islar
a species of polygamy, if it may be so called, which was perfectly singular. Uxores, says he, habent deni duodenique inter se communes ; et maximè fratres cum fratribus parentesque cum liberis : sed si qui sint er his nati, eorum habentur liberi, quo primum virgo quæque deducta est.
DIVORCE. 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 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 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 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 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 danger of abuse or inconveniency. But constituted as mankind are, and injured as the repudiated