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revoked a legacy, or gift mortis causâ, in her favour.
This suggestion has been noticed by Paley in his "Moral Philosophy," with great acuteness. He thinks such a law might be framed, directing the fortune of the offender to descend, as in the case of her natural death, reserving a certain limited portion of the produce as an annuity for her life, and suspending the reversion in the hands of the heir. Others think the husband, in all cases, should have the whole usufruct of the property to maintain his motherless children; but, if the necessity for such a provision could once be recognized, the minutiae of its adjustment would soon be settled; and, as a taste for expensive, as well as vicious pleasures, and a fondness for extravagance, are the customary accompaniments of the disposition to commit this crime, it appears that the tendency of such a law would be very beneficial in checking the urgency of the criminal suitor, as also the disposition of the heedless wife to listen to his arts. The crime is hateful enough. We have remarked already how it is viewed by God, and contended that it should be regarded in the same light by man. The observation is repeated in order to rebut the slanderous and gross misinterpretation of
the words of Jesus Christ towards one poor offender of this kind, which should not be unnoticed in an Essay on this subject. The incident of the Woman taken in Adultery is recorded in the eighth chapter of St. John's Gospel. As Christ told the woman, say they, "Neither do I condemn thee;" it must be considered that he either regarded her conduct as not criminal, or as considerably less so than we would characterize such conduct to be.
But whoever will carefully examine the narrative of the Evangelist, and notice the cold and stern reception which the Saviour gave to these accusers, who came tempting him, as usual hoping to lead him to commit himself to the Roman authority; the keen and pointed rebuke with which he dismissed them all, and then, adverting to the absence of all witnesses necessary to a legal and judicial conviction, asked, "Hath no man condemned thee?" will not be at a loss to understand the sense in which the term condemnation is here employed, nor confound his compassion for the offender with complacency at the crime. Condemnation of blame, reproof, censure, many had given her: yet she says, "No man, Lord:" and the Saviour replied, "Neither do I," judicially. Thou hast sinned in
this matter: in this I agree with thine accusers; but,' Go; and sin no more.'
* This view of the subject may find ample and interesting corroboration in the Hora Judaicæ of Lightfoot, who has gleaned more plentifully, perhaps, than any other writer, from the Rabbies and Masters of traditions.
In one part of his elaborate folio he remarks on the words, "Moses commanded, that such should be stoned, but what sayest thou?' as if to inquire of Christ whether the offender might not have the benefit of Divorce, and escape the penalty of death." In another part he remarks the mode of reply adopted by Christ, which he contends was strictly formed upon the favourite notions adhered to by them of the trial by bitter waters. "In that manner will be brought to trial the accusers first. Ye have brought this woman to me. I will govern myself according to the rule of trying by the waters of jealousy. You say, if the husband be guilty of the same crime, that trial loses all its effect, and the accused cannot be hurt. If the divine judgment proceeded in this manner, so will I. Are you, that accuseth this woman, wholly guiltless in the like kind of sin? Whosoever is, let him cast the first stone; but if you, yourselves, stand chargeable with the same crime, then your applauded tradition, the opinion of your nation, may determine this case, and acquit me from all blame, if I condemn not this woman when her accusers themselves are to be condemned.'
The idea of judicial condemnation is supported by the supposition that these scribes and pharisees were some of the members of the Sanhedrim, the Jewish bench of judicature, who thus themselves convicted, could not judicially convict the woman.
"The office of the priest, when trying the suspected wife,
Another observation respects the reciprocity of crime, to which the case of accuser and accused, in the last passage, being in the same predicament, naturally leads us.
Lenocinium, it is said, is a good defence for the wife against the husband; and a plea of recrimination (reciprocatio criminis) is an available bar against a claim to separation. But this is a strange maxim: the prior transgression of the one party is no apology for the Adultery of the other. It may extenuate, but it can never justify, unless it can be shewn that the obligation of the marriage vow depends upon the construction of reciprocal fidelity. Besides, the legal soundness of this opinion is open to doubt; for, while the infidelity of the one party is ground for Divorce,
was to stoop down and gather the dust off the floor of the sanctuary, which, when he had infused into the water, he was to give her to drink. He was to write also in a book the curses or abjurations that were to be proved upon her. (Numbers v. 17, 23.) In like manner, the Saviour stoops down, and making the floor itself his book, he writes something in the dust, doubtless against these accusers, which he was resolved to try in analogy to those curses and abjurations written in a book by the priest against the woman that was to be tried. The latter, intimating it was a doubtful case, blotted the curse; but Christ, to intimate that he had no doubt of the accusers' guilt, writes again a second time."
this construction makes the infidelity of both to secure the continuance of the contract ; and has a manifest tendency to multiply the offence, but none to reclaim the offender. But this remark has been, in part, anticipated in considering the state of the Scotch law.
With regard to sentences of Divorce, it may be observed, that they are highly necessary, as judicial declarations of the true status of the parties.
All dissolutions of the marriage contract should be formal and notorious. The mere entering into a new league with Titia is no sufficient dissolution of the previous one with Sempronia. These solemn proceedings are therefore highly useful, and the wisdom of our laws has certainly provided for as complete an investigation of the case as circumstances admit. There must be the verdict against the adulterer at the common law, next the sentence in the spiritual court, and then the operation of an Act of Parliament is required before a Divorce, with liberty of re-marriage, can be enjoyed. The complaint could not receive a more full investigation. Far be the time when such remedies as Divorces shall be considered slight, and made