fication; "Donec mundus repleretur," is the ground on which the patriarchal practice of polygamy rested: although, even in the instances of Abraham with Hagar, and Jacob with the handmaid of Leah, to which the reference is made, it cannot be thought that there was a total absence of any intermixture of evil; and when the reasons which justified these customs had ceased to operate, marriage was restored to its original rights, and those deviations from the correct course of nature became criminal. Still the circumstance of consent remained: and agreement being considered the essence of a contract, and marriage being regarded apart from its religious character merely as a contract of a civil nature, it was thought to be dissoluble by the consent and at the mutual pleasure of both parties. "In Papiani responsis hæc lex: consensu utriusque repudium dari, et matrimonium posse dissolvi."

But this is opposed to the view which results from the Saviour's law of Divorce and marriage, is equally contrary to the dictates of natural law, and adverse to the maxims of the law of England. By this last, as we have already noticed, in any proceedings to obtain a sentence of Divorce, the least appearance of collusion or

consent between the parties would be sufficient to vitiate the attempt; and suits of separation are often defended, without the least hopeful ground for defence, in order to remove any imputation of this kind.

We must return to add a few remarks on the more immediate subject of the Essay.

In the primitive church, as we have seen, Adultery was thought to dissolve the marriage contract, so that the parties might marry again. In the Greek, Lutheran, and Calvinist Churches, this opinion still continues. It is thought by them to be more agreeable to the divine law, as well as to the principles of all civil contracts, which it certainly is; for the contrary opinion would write the marriage law in characters more indelible and perpetual, than the Saviour himself has done. Others contend, that such a construction would operate unfavourably to the moral interests of society. The Romanists, we have shown, totally disallow of it, because they number marriage among the sacraments, and account it a bond so sacred, that no crime committed, or provocation given by either party can dissolve it; and we have referred fully to the Council of

Trent, and the Papal anathemas against all who thought otherwise, with the exception, however, made in favour of the Venetian Republic and her dependencies.

The law of Scotland, however, seems to have viewed the whole of this important subject in that light which best harmonizes with the doctrines of the Scriptures. The chief argument against the liberty of re-marriage is that which, on the supposition that a dissolution of the marriage bond is effected by the act of Adultery, would make a return to cohabitation between the parties an adulterous intercourse, if it took place without the intervention of a second marriage. But this difficulty is overcome by the Scotch law, which views the dissolution of the first vinculum as effected, not by the adulterous act itself, unless, when the discovery is made of it, the injured party wishes to avail himself of it,* (thus viewing it in the same manner as all other contracts are regarded,) but by the sentence of Divorce, the judicial declaration founded upon satisfactory proof of the crime.

The innocent person may recede from his right, and renounce a favour introduced on his own behalf.

Ayliffe's Parergon, p. 40.

We have, in the Third Section of the Essay, remarked on the reasonings of those who would deny to the guilty party the liberty of re-marriage, while they concede that liberty to the innocent and injured party; and, although such a measure is clogged by considerable difficulty, it is, nevertheless, one which appears to carry with it much that is plausible and specious; for there is reason to fear, that adulterous connexions are often formed with a view to the final union of the companions in crime; and certainly this would afford the seducer a tempting argument to overcome the yet remaining scruples of his victim, when he had once captivated her affections; and, by not prohibiting this, it is said the legislature would be conferring a privilege, where it ought to inflict a punishment. We find, that by the law of Scotland, there is a special statute on this subject, which does restrict the union of the adulterer and adulteress : and it has been proposed to annex a clause, similar to the provision of the Scotch law, to the penal acts of South Britain. Paley thought the proposal certainly deserved an experiment; but, in the mean time, we renew our remark, that this must be by a special legislative enactment: for, until this happens, the nature of things requires this liberty as

the unavoidable result of the dissolution of the contract, and the permission of the privilege to one of the contracting parties. That some alteration, however, in the state of the law on this part of the subject, namely, the punishment of the guilty party, might be advantageous, can hardly be doubted, and that it is called for is equally clear. The history of the matter has been traced, and it cannot be concluded from that review, that because Adultery is now regarded only as a civil injury and a private offence, that therefore the law has always considered it such; and that the infliction of a penalty would be an innovation on the ends of justice: we have seen the contrary. The punishment was not intended to be annihilated, when it was transferred from the secular to the spiritual tribunal. Ecclesiastical judgment did but take up what either the throne felt a disinclination to continue, or an inability to retain, and what had been dilapidated from the Imperial, went to the augmentation of the Canonical law. And what is the ecclesiastical censure? Can it be supposed of much effect with criminals like these? The exposure of the person, modern refinement has prevented, and the mutilation of the features, humanity forbids; neither the ancient" demembratio," nor the

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