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is a powerful master in teaching the duties it imposes. If it were once understood, that, upon mutual disgust, persons might be legally separated, many couples, who now pass through the world with mutual comfort, with attention to their common offspring, and to the moral order of civil society, might have been at this moment living in a state of mutual unkindness, of estrangement from their children, and of unrestrained and licentious immorality. The happiness of some must then be sacrificed to the general good."
This reasoning is fully confirmed by the Roman historians, to whom we cannot help once more adverting. They describe, in strong terms, the reluctance felt by that people, when they were pressed to marriage by Augustus; a circumstance, which sufficiently indicates, that the prevailing institutions were not favourable to the men, and also refutes the specious theory, (as Gibbon properly observes,) that the liberty of Divorce contributes to the happiness and virtue of a people. Of the readiness with which this facility of separation hastened the disorderly effects of the corrupt passions of human nature, and destroyed the peace and simplicity of those habits which had before characterized their
domestic polity, we have abundant proof in the Roman writers. Juvenal's" octo mariti quinque per autumnos;" Seneca's "numero maritorum annos computere ;" and Martial's jam decimo nubit Thelesina viro,” though not a little hyperbolical, when completed "in tricesimâ luce," yet serve to satirize the evils of the time, and prove the monstrous products of those laws, which, for causes the most trivial, permitted, and consequently gave occasion to, multiplied Divorces.
Circumstances have of course arisen in reference to this, as well as all other crimes, which, partaking of lighter or deeper shades of moral turpitude, have furnished materials of the nicest casuistry. The writers on natural law have supposed cases in which this crime might present a very different aspect from that which it wears in the calm scenes of domestic quietude and civil peace. War sometimes introduces in the train of its numerous evils the commission of crimes which no foresight could control. On such a principle as this, it must be, that some have contended it to be one of the rights of war, that the wives of the enemy, taken as prisoners, may be considered part of the lawful spoil of the conqueror, and be tributary to his embrace.
But this right has been too
long and too universally questioned by the practice of civilized nations, to require any lengthened refutation.
It has also been a question, whether the power of the husband over the person of his wife was not such as to enable him to consent to her committing Adultery, without contracting guilt, in a case of life and death, or extreme peril. It is surprising to find so devout a man as St. Augustine, admitting the force of the reasoning urged in favour of this supposition, and not at once rejecting the impure proposal with the disgust and indignation it merited.
Another doubt respecting the power with which marriage was considered to invest the parties, was very specious, because it apparently approached nearer to the true end of marriage. It was asked, whether Adultery might not be committed without a crime, if both parties consented to it with a view to the procreation of children, and it was contended that the records of the patriarchal ages furnished instances of the alienation of the person of the husband, even at the suggestion of his wife. But these were cases in which the peculiar state of the world's population has found no parallel, and to which, therefore, is appropriated its exclusive justi
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 Iwith 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