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 condemn thee; go, and sin no more." Now, when Christ asked the woman, "Hath no man condemned 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 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.

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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.

INCEST.

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 conjunctions; 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.

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 bastardized, unless the parents be divorced during their lifetime.

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.

The Roman law continued the prohibition to the descendants of brothers and sisters without limits. In the Levitical and English law, there is nothing to hinder a man from marrying his great-niece.

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.

Polygamy not only violates the constitution of nature, and the apparent design of the Deity, but produces to the parties themselves, and to the public, the following bad effects: contests and jealousies amongst the wives of the same husband; distracted 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 characterized 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 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.

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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 This equality is not exact. The number of male infants exceeds that of females in the proportion of nineteen to eighteen, or thereabouts: which excess provides for the greater consumption of males by war, seafaring, and other dangerous or unhealthy occupations.

+ Nothing, I mean, compared with a state in which 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 population; 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 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 under the marriage of one woman to one man. These considerations may be added to what is mentioned in the text, concerning the casy and early settlement of children in the world.

See Deut. xvii. 17; xxi. 15.

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 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—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 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 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 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.

CHAPTER VII.

OF 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 laws of nature, is the question before us.

And in the first place, it is manifestly inconsistent with the duty which the parents owe

"I say unto you, Whosoever shall put away his wife, except it be for fornication, and shall marry another, Committeth adultery."

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 the 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 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

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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; but 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 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 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 dislike 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 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.

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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 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, reyokes 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 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 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