Page images
PDF
EPUB

riage-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 keep to each other,' or in other words, to live together, must be understood to impose it with a silent reservation of these cases; because the same law has constituted a judicial relief from the tyranny of the husband, by the divorce à mensa et toro, and by the provision which it makes for the separate maintenance of the injured wife. St. Paul likewise distinguishes between a wife's merely separating herself from the family of her husband, and her marrying again :'Let not the wife depart from her husband: but and if she do depart, let her remain unmarried.'

The law of this country, in conformity to our Saviour's injunction, confines the dissolution of the marriage-contract to the single case of adultery in the wife; and a divorce even in that case can only be brought about by the operation of an act of parliament, founded upon a previous sentence in the ecclesiastical court, and a verdict against the adulterer at common law : which proceedings taken together, compose as complete an investigation of the complaint as a cause can receive. It has lately been proposed to the legislature to annex a clause to these acts, restraining the offending party from marrying with the companion of her crime, who, by the course of proceeding, is always known and convicted : for there is reason to fear, that adulterous connexions are often formed with the prospect of bringing them to this conclusion; at least, when the seducer has once captivated the affection of a married woman, he may avail himself of this tempting argument to subdue her scruples, and complete his victory; and the legislature, as the business is managed at present, assists by its interposition the criminal design of the offenders, and confers a privilege where it ought to inflict a punishment. The proposal deserved an experiment: but some. thing more penal will, I apprehend, be found necessary to check the progress of this alarming depravity. Whether a law might not be framed directing the fortune of the adulteress to descend as in case of her natural death ; reserving, however, a certain proportion of the produce of it, by way of annuity, for her subsistence, (such annuity, in no case, to exceed a fixed sum,) and also so far suspending the estate in the hands of the heir as to preserve the inheritance to any children she might bear to a second marriage, in case there was none to succeed in the place of their mother by the first; whether, I say, such a law would not render female virtue in higher life less vincible, as well as the seducers of that virtue less urgent in their suit, we recommend to the deliberation of those who are willing to attempt the reformation of this important, but most incorrigible, class of the community. A passion for splendour, for expensive amusements and distinction, is commonly found, in that description of women who would become the objects of such a law, not less inordinate than their other appetites. A severity of the kind we propose, applies immediately to that passion. And there is no room for any complaint of injustice, since the provisions above stated, with others which might be contrived, confine the punishment, so far as it is possible, to the person of the offender; suffering the estate to remain to the heir, or within the family, of the ancestor from whom it came, or to attend the appointments of his will.

Sentences of the ecclesiastical courts, which release the parties à vinculo matrimonii by reason of impuberty, frigidity, consanguinity within the prohibited degrees, prior marriage, or want of the requisite consent of parents and guardians, are not dissolutions of the marriage contract, but judicial declarations that there never was any marriage; such impediment subsisting at the time, as rendered the celebration of the marriage-rite a mere nullity. And the rite itself contains an exception of these impediments. The man and woman to be married are charged, “if they know any impediment why they may not be lawfully joined together, to confess it;' and assured that so many as are coupled together,

otherwise than God's word doth allow, are not joined together · by God, neither is their matrimony lawful;' all which is in

tended by way of solemn notice to the parties, that the vow they are about to make will bind their consciences and authorize their cohabitation, only upon the supposition that no legal impediment exists.

CHAPTER VIII.

MARRIAGE.

THETHER it has grown out of some tradition of the

V divine appointment of marriage in the persons of our first parents, or merely from a design to impress the obligation of the marriage-contract with a solemnity suited to its importance, the marriage-rite, in almost all countries of the world, has been made a religious ceremony ;' although marriage, in its own nature, and abstracted from the rules and declarations which the Jewish and Christian Scriptures deliver concerning it, be properly a civil contract, and nothing more.

With respect to one main article in matrimonial alliances, a total alteration has taken place in the fashion of the world ; the wife now brings money to her husband, whereas anciently the husband paid money to the family of the wife; as was the case among the Jewish patriarchs, the Greeks, and the old inhabitants of Germany. This alteration has proved of no small advantage to the female sex : for their importance in point of fortune procures to them, in modern times, that assiduity and respect, which are always wanted to compensate for the inferiority of their strength; but which their personal attractions would not always secure.

Our business is with marriage, as it is established in this country. And in treating thereof, it will be necessary to state the terms of the marriage-vow, in order to discover,

1. What duties this vow creates.

1 It was not, however, in christian countries required that marriages should be celebrated in churches, till the thirteenth century of the christian era. Marriages in England during the Usurpation were solemnized before justices of the peace; but for what purpose this novelty was introduced, except to degrade the clergy, does not appear.

2 The ancient Assyrians sold their beauties by an annual auction. The prices were applied by way of portions to the more homely. By this contrivance, all of both sorts were disposed of in marriage.

P.

2. What a situation of mind at the time is inconsistent with it. 3. By what subsequent behaviour it is violated.

The husband promises, on his part, 'to love, comfort, honour, and keep, his wife :' the wife on hers, 'to obey, serve, love, honour, and keep, her husband ;' in every variety of health, fortune, and condition : and both stipulate 'to forsake all others, and to keep only unto one another, so long as they both shall live. This promise is called the marriage-vow; is witnessed before God and the congregation ; accompanied with prayers to Almighty God for his blessing upon it; and attended with such circumstances of devotion and solemnity as place the obligation of it, and the guilt of violating it, nearly upon the same foundation with that of oaths.

The parties by this vow engage their personal fidelity expressly and specifically; they engage likewise to consult and promote each other's happiness; the wife, moreover, promises obedience to her husband. Nature may have made and left the sexes of the human species nearly equal in their faculties, and perfectly so in their rights; but to guard against those competitions which equality, or a contested superiority, is almost sure to produce, the christian Scriptures enjoin upon the wife that obedience which she here promises, and in terms so peremptory and absolute, that it seems to extend to everything not criminal, or not entirely inconsistent with the woman's happiness. “Let the wife,' says St. Paul, 'be subject to her own husband in everything.'—'The ornament of a meek and quiet spirit,' says the same apostle, speaking of the duty of wives, 'is, in the sight of God, of great price. No words ever expressed the true merit of the female character so well as these.

The condition of human life will not permit us to say, that no one can conscientiously marry, who does not prefer the person at the altar to all other men or women in the world : but we can have no difficulty in pronouncing, (whether we respect the end of the institution, or the plain terms in which the contract is conceived,) that whoever is conscious, at the time of his marriage, of such a dislike to the woman he is about to marry, or of such a subsisting attachment to some other woman, that he cannot reasonably, nor does in fact, expect ever to entertain an affection for his future wife, is guilty, when he pronounces the marriagevow, of a direct and deliberate prevarication; and that, too, aggravated by the presence of those ideas of religion, and of the Supreme Being, which the place, the ritual, and the solernnity of the occasion, cannot fail of bringing to his thoughts. The same likewise of the woman. This charge must be imputed to all who, from mercenary motives, marry the objects of their aversion and disgust; and likewise to those who desert, from any motive whatever, the object of their affection, and, without being able to subdue that affection, marry another.

The crime of falsehood is also incurred by the man who intends, at the time of his marriage, to commence, renew, or continue a personal commerce with any other woman. And the parity of reason, if a wife be capable of so much guilt, extends to her.

The marriage vow is violated,
I. By adultery.

II. By any behaviour which, knowingly, renders the life of the other miserable ; as desertion, neglect, prodigality, drunkenness, peevishness, penuriousness, jealousy, or any levity of conduct which administers occasion of jealousy.

A late regulation in the law of marriages, in this country, has made the consent of the father, if he be living, of the mother, if she survive the father, and remain unmarried, or of guardians, if both parents be dead, necessary to the marriage of a person under twenty-one years of age. By the Roman law, the consent et avi et patris was required so long as they lived. In France, the consent of parents is necessary to the marriage of sons, until they attain to thirty years of age ; of daughters, until twenty-five. In Holland, for sons, till twenty-five; for daughters, till twenty. And this distinction between the sexes appears. to be well-founded; for a woman is usually as properly qualified for the domestic and interior duties of a wife or mother at eighteen, as a man is for the world, and the more arduous care of providing for a family, at twenty-one.

The constitution also of the human species indicates the same distinction.

i Cùm vis prolem procreandi diutiùs hæreat in mare quàm in fæmina, populi numerus nequaquam minuetur, si seriùs venerem colere inceperint viri.

« PreviousContinue »